About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 464
|
|
Mercedes Benz Financial Services v Xilumani Holdings & Projects CC t/a Zilumani Holdings and Projects and Another (28869/2019) [2019] ZAGPPHC 464 (31 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISON. PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE
NO.: 28869/2019
31/7/2019
In
the matter between :
MERCEDEZ-BENZ
FINANCIAL SERVICES
First
Applicant
and
XILUMANI
HOLDINGS &
PROJECTS
CC T/A
First
Respondent
ZILUMANI
HOLDINGS AND PROJECTS
HOWARD
ALEX
MASHABA
Second
Respondent
JUDGEMENT
SARDIWALLA
J;
Introduction
[1] On
9 May 2019, an application was before me in the urgent court brought
by the applicant
against the first respondent and second respondents
in terms of Rule 6 (12) Of the Uniform) Rules of Court declaring them
to be
in contempt of various court orders.
[2] On
9 May 2019 I handed down an order granting the relief that the
applicant had sought.
Background
to the Application:
[3] The
parties entered into various instalment agreements during the period
of October
and No, ember 2017 in respect of the purchase of eleven
vehicles. The first respondent failed to pay the instalments as
agreed
which resulted in the applicant cancelling the agreement and
issuing summons against the respondents.
[4]
Default judgment was granted under case! numbers 45886/2018 and
90088/2018. The matters
proceeded under various case numbers of which
9 matters were defended and upon summary judgment stages the parties
entered into
a settlement agreement in respect of each matter which
\\ere made order of court on 10 and 18 December 2018 respectively.
The relevant
parts of the agreements are as follows:-
“
5.
Paragraphs 2 and 3 of the order were temporarily suspended pending
compliance by the defendant with the following and pending
compliance, the defendant will be allowed to retain temporary
possession of the vehicle:
5.1
The defendant will make immediate payment of the amount of R600
000.00. which amount will be apportioned
to the arrears on the
contracts 950024, 98444, 942534, 942533, 949728, 950023, 942530,
949876, 942515 and 942531:
5.2
The defendant will
thereafter,
insofar as it has not made payment of the normal instalments for
October 2018, immediately pay such instalment.
5.3
The defendant then resume its monthly instalments on the due dare,·
as they
w
ere
prior tom the cancellation from November 2018 up and to the final
payment date of 10 October 2011.
5.4
In addition to the normal monthly instalments the defendant shall,
for each of the months of November
2018, December 2018 and January
2019, make an additional payment of R200 000.00, which amount will he
apportioned to the arrears
of the contracts 950024, 98444, 942534,
942533, 949728, 950023. 942530, 949876, 942515 and 942531.
5.5
Thereafter . and still whilst mainlining the normal monthly
instalments, the defendant shall make
additional monthly payments. in
the amount of R150 000. 00, commencing February 2019 and
monthly· thereafter until
the arrears on all the contracts
referred to above has been settled in full.
6.
In the event that the defendant fails to make payment on the due dale
and or in the
due amounts as contemplated in paragraphs 51. To 5.6
above, the suspension of paragraphs 2 and
3
will
immediately cease, and the defendant will he in unlawful possession
of the vehicle with immediate effect."
[5]
In February 2019 warrants of executions were obtained against the
first respondent failure
to make payments as stipulated in the
agreements. On 18 February 2019 the first respondent launched 9
rescission applications which
were subsequently struck off role for
failure to show urgency and merit.
[6]
After several attempts to attach the vehicles a case of, vehicle
theft was opened at the
SAPS Weirdabrug under case number 411/2019.
On 21 April 2019 three of the vehicles were impounded us a result by
the police. The
first respondent together with three of its drivers
approached the Polokwane High Court for urgent relief alleging
spoliation.
An interim order was granted ex parte to the first
respondent for the return of three of the vehicles to the first
respondent on
22 April 2019.
Applicant's
Argument
[7]
It is the applicant’s submission that the respondents have
foiled to comply
with the Court orders by failing to make payments as
stipulated. The applicant indicated that since the warrants of
execution were
obtained the applicant's agents have made several
attempts to attach the vehicles and deliver to the applicant without
success.
It avers that the first respondent. through the deliberate
actions of the second respondent has frustrated those attempts. It
further
submits that it intends illustrating on the return day of the
ex parte matter that there can be no issue or spoliation in light
of
the various valid court orders and warrants of execution which it
avers the first respondent deliberately withheld from the
Polokwane
High Court misleading the court to the true nature of the matter and
is an obstruction to justice which is a criminal
offence. It
indicated that the respondent is aware of the court orders as it made
reference to the court orders in its urgent application
on 12 Murch
2018 which were struck from the roll. That the applicant has
exhausted all available remedies and that the respondent's
actions
are clearly mala fide in attempting to retain possession of the
vehicles after failing to comply with the above court orders.
First
Respondent's Argument
[8]
The first respondent opposes this application on the basis that the
application lacks
urgency and is without merit. I le argues that the
matter is premature as there is pending litigation regarding the
rescission
application and that until such times as those arc
finalised the court orders arc suspended and therefore it cannot be
held to
be in contempt It lastly alleges that the second respondent
was not properly served in terms of Rule 4 and R6 (5) (a) of the
Uniform
Rules of Court and was therefore not a party to the
proceedings relating to the court orders.
Contempt
proceedings
[9]
It is trite that compliance with court orders is an issue of
fundamental concern for
a society that seeks to base itself on the
rule of law. What is required in civil contempt matters is that
sufficient care should
be taken in the proceedings to ensure a fair
procedure as far as possible with the provisions of section 35(3) of
the Constitution
-
(
JSO v HWO (24384/2009)
(2014)
ZAGPPHC 133 (19 February 2014)).
Fakie NO v CCII Systems
(Pty) Lui
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
is the leading
authority on contempt of court proceedings. [n this decision the
Supreme Court of Appeal describes the application
for committal for
contempt by a private party as a ‘
peculiar amalgam’
because
'it
is a civil proceeding that invokes a criminal sanction or its
threat.’(para [8]).
The
Court continues in paragraph [9]
'The
tests foe when the disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
“deliberately and
mala
fide”.
A
deliberate disregard is not enough….’.
However.
in paragraph [41] the Court holds
'...
this development of common law does not require the applicant to
lead evidence as to the respondent’s state of mind or motive:
Once the applicant proves three requisites…. Unless the
respondent provides evidence raising a reasonable doubt as to whether
non-compliance was wilful and mala fide the requisites of contempt
would have been established. The sole change is that the respondent
no longer bears a legal burden to disprove wilfulness and mala fides
on a balance of probabilities, but, but only need evidence
that
establishes a reasonable doubt.’
[10]
The Supreme Court of Appeal summarised its findings in paragraph
[42]:
a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court
orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirement.”
b)
The respondent in such proceedings is not an “accused person”,
but is entailed to analogous
protections as are appropriate to motion
proceedings.
c)
In particular the applicant must prove the requisites of contempt
(the order: service or notice:
non-compliance: and wilful and mala
fides
)
beyond reasonable doubt.
d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears
an evidential burden in relation
to wilfulness and
mala
fides:
Should
the respondent fail to advance evidence that establishes a reasonable
doubt as to whether non-compliance was wilful and
mala
fide,
contempt
will have been established beyond reasonable doubt.
[11]
In
Pheko and Others v Ekurhuleni Metropolitan Municipality (No
2)
[2015] ZACC 10
in a unanimous decision delivered by
Nkabinde J, the Constitutional Court subsequently explained that :
“
[30]
The term civil contempt is a form of contempt outside of the court,
and is used to refer
to contempt by disobeying a court order. Civil
contempt is a crime, and if all the elements of criminal contempt are
satisfied,
civil contempt can be prosecuted in criminal proceedings,
which characteristically lead to committal. Committal for civil
contempt
can, however, also be ordered in civil proceeding for
punitive or coercive reasons. Civil contempt proceedings are
typically brought
by a disgruntled litigant aiming to compel another
litigant to comply with the previous order granted in its favour….
[31]
Coercive contempt orders call for compliance with the original order
that has been
breached as well as the terms of the subsequent
contempt order. A contemnor may avoid the imposition of a sentence by
complying
with coercive order. By contrast, punitive orders aim to
punish the contemnor by imposing a sentence which is unavoidable. At
its
origin, the crime being denounced is the crime of disrespecting
the court, and ultimately the role of law.
[32]
The pre-constitutional dispensation dictated that in all cases, when
determining
contempt in relation to a court order requiring a person
or legal entity before it to do or not do something(ad
factum
praestandum),
the
following elements need to be established on a balance of
probabilities: (a) the order must exist: (b) the order must have been
duly served on, or brought to the notice of, all the alleged
contemnor; (c) there must have been non-compliance with the order;
and (d) the non-compliance must have been wilful or mala fide’.
[12]
The
Constitutional Court confirmed the decision b) the Supreme Court of
Appeal in
Fakie
(supra)
and held in paragraph [36] that the decision creates a presumption in
favour of the Applicant -
'Therefore
the presumption rightly exits that when the first three elements of
the test for contempt have been established, mala
fides and
wilfulness are presumed unless the contemnor is able to lead evidence
sufficient to create reasonable doubt as to their
existence. Should
the contemnor prove unsuccessful in discharging this evidential
burden, contempt will be established.’
[13]
Nkabinde J continued in paragraph
“
[37]
- - However, where a court finds a recalcitrant litigant to be
possessed of malice on balance, civil contempt remedies other
that
committal may still be employed. These include any remedy that would
ensure compliance such as declaratory relief, a mandamus
demanding
the contemnor to behave in a particular manner, a fine and any
further order that would have the effect of coercing compliance.’
The
current application
[14] It
is common cause between the parties before the Court that the first
three elements of the test for
contempt have been established.
However the second respondent denies being in contemptuous default in
that he was not cited as
a party to the agreements that were made an
order of court ,md therefore cannot be bound
by
that order.
[15]
Since the first three elements of the test for contempt have been
established.
Mala fide s
and wilfulness are presumed unless
the respondents arc able to lead evidence sufficient to create
reasonable doubt as to their existence
. The respondents thus need to
rebut the presumption of
mala fides
and wilfulness.
[16]
The meaning of the terms
mala fides
and wilfulness need to be
determined. It was held in
Fakie (supra
paragraph [9]) that a
deli berate (wilful) disregard is not enough.
‘
since
the non-complier may genuinely, albeit mistakenly, believe him of
herself entitled to act in a way claimed to constitute contempt.
In
such a case good faith avoids the infraction. Even a refusal to
comply that is objectively unreasonable may be bona fide (through
unreasonableness could evidence lack of good faith).’
[17]
In light of the facts of this application the question would be
whether (i) the respondents indicated
in their affidavit a factual
inability to comply with the court order: (ii) and,. if such a
factual inability is evident from the
documents before the Court.
whether the Respondent honestly believed that non-compliance with the
court order due to a factual
inability to comply is justified.
[18]
The applicant avers in the founding affidavit that the respondents
arc
ma/a fide
and in wilful contempt of the Court order. It is
evident from the papers that the parties have been embroiled in
extended litigation
and that the relationship between the parties is
acrimonious. The applicants aver that the second respondent who is
the only member
of the first respondent is aware of the court orders
and has failed to comply. However. in addressing the first question,
namely,
whether the respondents have indicated any factual inability
to comply with the court order. it is imperative to take cognisance
of the fact that the Court is not called now to adjudicate a
grievance dispute between the parties. Kirk-Cohen J stated
unequivocally
in
Federation of Governing Bodies of South Africa
African Schools
(Gauteng) v
MEC
for Educatiom, Gauteng
2002 (1) SA 660
(T) at 6730-E-
'Contempt
of court is not an issue
inter
parties;
it
is an issue between the court and the party who has not complied with
a mandatory order of court.’
[19]
I am not convinced that the respondents have discharged the
evidentiary burden in creating reasonable
doubt as to the wilfulness
and
mala fides
of their default to perform in terms of the
court orders. Although there is no
onus
on the respondents.
but merely an evidential) burden to create a reasonable doubt as to
the existence or wilfulness and
mala fides.
The reliance on
the rescission applications automatically suspending the operation of
the orders is incorrect. Counsel for the applicant
correctly stated
that such a rule only applies automatically to appeals and not
rescission applications. If the respondents required
the operation
and execution of the orders lo be suspended pending the finalisation
of the rescission applications the n:spondents
were required to bring
a formal application to suspend in terms of section 18(3) of the Act.
which the respondents have provided
no reason why it has not done so.
The Court is also cognisant of the fact that these court orders were
as a result of agreements
entered into by the parties, to which
despite the fact that the second respondent was not cited as a party
to the proceedings.
as the sole member of the first respondent these
agreements could not have been concluded without his express
knowledge and consent.
Therefore the respondents did not succeed in
rebutting the presumption of wilfulness and
mala fides.
The
respondents also did not succeed in creating a reasonable doubt as to
their non-compliance with the court order being wilful
and
mala
fide.
Therefore there cannot be said to be reason or even a
possibility of the respondents inability to comply with the order.
[20]
The final question then is whether there are any alternative means
through which the court can ensure
compliance with the court orders.
I am of the view that the applicant has exhausted all its remedies.
In light of the absence of
an adequate explanation for the
respondent's conduct. I am satisfied that the balance of convenience
favours the applicants und
that a failure to declare the respondents
in contempt and ordering the second respondents committal to prison
would result in irreparable
harm being done to the applicant to which
there is no alternate remedy.
[21]
Accordingly, the folio\\ in order is made:
1.
The
non-compliance with the rules of the Honourable Court in respect of
dies, form and service, be condoned in terms of 6(12) of
the Rules of
Honourable Court and that this application be heard as an urgent
application.
2.
The
respondents he declared in contempt of the following Court order(s)
under case number(s):
2.1
90088/2018
2.2
45886/2018
2.3
45893/2018
2.4
45885/2018
2.5
45888/2018
2.6
45982/2018
2.7
45889/2018
2.8
45840/2018
2.9
45887/2018
2.10
45894/2018
2.11
45891/2018
3.
The
second respondent he committed in prison for 30 (thirty) days.
4.
The
respondents are to pay the costs of the application, jointly and
severally on the scale as between attorney and client.
SARDIWALLA
J
APPEARANCES
Date
of hearing
: 9 May
2019
Date
of judgment (reasons)
: 31 July
2019
Applicant's
Counsel
: Adv.:
CJ Welgemood
Applicant's
Attorneys
: Straus
Daly Attorneys
First
and Second Respondent's Counsel
:
ADV T K
MALULEKA
First
and Second Respondent's Attorneys :
BM Mudzuli
Attorneys