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[2019] ZAECMHC 66
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Tshangela v Xhobiso (4496/2018) [2019] ZAECMHC 66 (12 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION – MTHATHA]
CASE
NO. 4496/2018
Heard
on:
28
October 2019
Delivered on:
12 November 2019
In
the matter between:
THEMBINKOSI
TSHANGELA
Applicant
and
NOGOLIDE
XHOBISO
Respondent
JUDGMENT
ZONO AJ
[1]
The applicant instituted these proceedings seeking mainly, that the
respondent be
held to be in contempt of the court order dated 10
January 2017. He further seeks that the respondent be committed
to imprisonment.
Sheriffs’ fees incurred during
demolition in the amount of R10 500-00 as well as an order of
costs on an attorney and
client scale are sought.
[2]
The respondent opposed the application and in so doing she filed her
Notice to Oppose
and answering affidavit which has been followed by
replying papers.
[3]
The court order alleged to have been contravened is part of the
applicant’s
papers as annexed as Annexure “TT1. It
reads as follows:
(1)
“
The Rule Nisi granted in 6 December 2016 be and is hereby
granted;
(2)
The dispossession of the piece of land described as Site No. 365,
Zitatele Administrative
Area, Corana Location, Libode belonging
applicant by the respondent be and is hereby declared wrongful and
unlawful.
(3)
The fencing of the piece of land described in Paragraph 2 above by
the respondent be and
is hereby declared wrongful and unlawful.
(4)
The respondent be and is hereby ordered to return possession of the
said piece of land forthwith
to the applicant.
(5)
The respondent be and is hereby ordered to remove the fencing from
the said piece of land
within 7 days from date of this order, failing
which the sheriff of this court with the assistance of the South
African Police
Service, if need be, be ordered to remove the fencing
forthwith.
(6)
There shall be no order as to costs.”
[4]
The respondent disclosed to the court different court order which is
alleged to have
been served with the application papers as the order
that is alleged to have been contravened. This court order,
despite
that it is different from the one mentioned above,
appear to have been granted contemporaneously with the one mentioned
in
Paragraph 3 above. Similarities between the two court orders
are as follows: They were both granted on 10 January 2017
by
Dawood J. Mr Zilwa was an attorney appearing for the applicant
and the respondent appeared in person, and the court orders
were
granted by consent. The first paragraph of both court orders
reads as follows: “
That the Rule Nisi granted on 6 December
2016 be and is hereby granted.”
All other paragraphs
are different.
[5]
Contents of Paragraph 2 to 4 of the other order read as follows:
“
2. That the
dispossession of the piece of land described as Site No. 365 the
respondents to file their answering papers on or before
the 16
January 2017.
3. The applicant shall
file its replying affidavit on or before the 20 January 2017.
4. Costs be in the
cause”.
The respondent therefore argued that no
compliance with the court order (the other order) may conceivably
give rise to contempt
of court proceedings.
[6]
The issue of two substantially different orders requires attention of
this court before
any other issue. This issue shall be dealt
with obviously with reference to the principles governing contempt of
court proceedings
and the papers before court.
[7]
Fundamental requisites for the granting of an order of committal are
that the applicant
for such an order must show the following:
“
(a) That an
order was granted against the respondent;
(b) That the
respondent was either served with the order or informed of the
grant and could have no reasonable
ground for
disbelieving that information;
(c) That the
respondent has either disobeyed the order or neglected to comply with
it.
[1]
It is sometimes required that applicant must show wilfulness in the
form of mala fides. Counsel for the applicant correctly
submitted that standard of proof in matters of this nature is proof
beyond reasonable doubt.
[8]
Whilst it is quite clear that both court orders appear to have been
granted by the
court on 10 January 2017 in the presence of both
parties. It is plain that their existence is definitely
proved. With
regard to the court order sought to be enforced by
the applicant, the applicant set out its contents in Paragraph 4 of
the founding
affidavit and annex same as Annexure TT1 to the founding
papers. Sequel to that the applicant makes the following
allegations
in Paragraph 6.2 of the founding affidavit:
“
It will be
noted from the order that the respondent appeared in person and the
order was explained to her by the time it was taken
.” In
dealing with these allegation the respondent, in her answer states as
follows:
“
it is admitted
I was at court in person when the order was granted.”
From this it is clear that there can be no illusion about which
court order the applicant and the respondent are talking about.
The allegations specifically relate to Annexure TT1 and its contents
that are specifically set out in and transposed onto Paragraph
4 of
the founding affidavit and Paragraph 1 of the Notice of Motion.
The existence of another court order in the light of
the pleaded
contents of the court order in question is irrelevant. Both
parties are aware of the court order which is the
subject matter of
these proceedings.
[9]
The question of service or notice of the court order is dealt with in
Paragraph 6.2
and 6.3 of the founding affidavit. The
allegations are couched in the following terms:
“
6.2 I may
mention that days before the matter appeared in court on 10 January
2017, the respondent visited my attorney’s office
for purposes
of explaining that she does not intend opposing the application and
that she acknowledges that the piece of land belongs
to me.
6.3. She further indicated that she will go to court and confirm that
she consents to the order being taken.
Indeed on the day of
hearing she came to court and the Presiding Judge engaged her so that
the court can be satisfied that she
understands the nature and import
of the order. In appreciation of her attitude towards the
matter and the way she appeared
to have acted innocently, the
Presiding Judge felt that she should not be mulcted with costs hence
there was no order as to costs.”
In answer the
respondent deals with these allegations as follows:
“
AD 6.2. I
admitted having visited the applicant’s attorney but dispute I
ever acknowledged the ownership of the applicant
as I know that the
applicant is being evicted by the owner of the allotment in a matter
pending before this Honourable Court.
AD 6.3 I admit the
contents herein.”
[10]
In the light of the admissions made by the respondent, that she was
in court on 10 January 2017,
and her failure to deny a pertinent
allegation that the court explained the contents of the court order
marked as Annexure “TT1”
I find that the requirement of
service or notice was satisfied. I accept applicant’s
version as correct.
[2]
On
Wightman
t/a J W Construction v Headfour (Pty) Ltd 2008(3) SA 371 (SCA) at
375F – 376B
the following expression was made “
there
is thus a serious duty imposed upon a legal advisor who settles an
answering affidavit to ascertain and engage with facts
which his
client disputes and to reflect such disputes fully and accurately in
the answering affidavit. If that does not
happen it should come
as no surprise that the court takes a robust view of the matter.”
[11]
This brings me to the element of noncompliance. In Paragraph 7
of the founding affidavit
the applicant alleges that “
in
compliance of the order the sheriff of the court visited the piece of
land and had the fencing demolished because the respondent
had failed
to take out the fencing. That was in January 2017.”
The respondent disputes that she ever fenced at the place where
the sheriff demolished. The sheriff pertinently submitted that
he removed the fence three times and in each time he restored
possession of the land to the applicant. The sheriff states
that the removal of the fence and restoration of the land was for the
sole purpose of executing the court order dated 10 January
2017.
[12]
Two issues arise from the contents of the preceding paragraphs,
namely: Firstly whether
or not there was noncompliance with the
court order or its terms; and secondly whether or not the court order
was fully discharged
or executed. These have a bearing on
whether or not the applicant has a complete cause of action against
the respondent.
[13]
Whilst applicant’s founding affidavit expressly set out that
the sheriff removed fencing
in January 2017, it fails to disclose
when that happened so that this court is able to appreciate whether
or not there was contempt.
It is essential to set out the date
in January 2017 when the contempt of court order was committed
especially in the light of the
contents of Paragraph 5 of the court
order in question, which required that removal must be effected
within 7 days of the order.
This court is groping in the dark
as to whether the removal was effected within the prescribed 7 day
period. The applicant
has not proved this point beyond
reasonable doubt and on that basis I am unable to find that there was
contempt of Court order
dated 10 January 2017.
[14]
The problem compounded when the applicant’s papers fail to
specifically set out a term
of the court order alleged to have been
contravened. There is no specific term of the court order
alleged to have been contravened
by the respondent. When
counsel for the applicant was pointed out to this deficiency he
submitted that it must be assumed
that the entire court order was
transgressed. There is no basis laid for that assumption.
It is trite that the whole
purpose of pleadings is to bring to the
notice of the court and the parties the issue upon which reliance is
to be placed for the
rivalling contentions. The object of the
pleadings is to define and ascertain definitely what the question at
issue between
the parties is, and this object can only be attained
when each party states his case with precision. Accordingly a
pleader
cannot be allowed to direct the attention of the other party
to one issue and then, at trial, attempt to canvass another.
[3]
In motion proceedings affidavits constitute evidence in support of
the relief and or the defence, raised. They form
the foundation
upon which each cause of action or defence is anchored. It is
now plain that applicant poorly pleaded his
cause of action.
[15]
Whether the purpose of the court order dated 10 January 2017 was
achieved during January 2017
when the sheriff removed the fencing
needs clarity. The court order in question is the one “
ad
factum praestandum.”
Such orders can be divided into two categories, namely, those which
direct certain things to be done and those that direct
abstinence
from doing particular acts.
[4]
The first category of such orders can often relate to mandamus,
mandatory interdicts and orders for specific performance
without an
alternative for payment of money. The second category of these
orders relate to prohibitory interdicts.
[16]
Orders
ad factum praestandum
in the form of mandatory
interdicts or mandamus often serve as a redress for wrong doers past
conduct (anteriority). It often
addresses itself to wrong doers
past conduct and brings about a remedy to the aggrieved party.
On the other hand prohibitory
interdicts are future directed in the
sense that they address themselves to posterity. It is of
cardinal importance to understand
the target of the order in question
so as to enable us to understand the perceived breach. If we
miss to understand the target,
we may as well misunderstand the
contravention complained of, and ultimately not understand the nature
of remedy available for
such beach
[17]
Having said that, applicant’s counsel strongly argued that
Paragraph 4 and 5 of the court
order in question represents mandatory
interdict which required removal of the fencing of and restoration of
possession of a particular
piece of land. Paragraph 4 and 5 of
the court order are a consequential relief flowing from the contents
of Paragraph 2 and
3 of the court. Paragraph 2 of the order
declares as unlawful dispossession of a specified piece of land.
Flowing directly
from this, an order granting restoration of
possession was granted. Paragraph 3 of the court order declares
as unlawful the
fencing of the same piece of land. As a direct
result of that an order granting removal of the aforesaid fencing was
granted.
[18]
It is my considered view that on every possible interpretation that
can reasonably be attached
to the court order, it is manifestly clear
that the court order merely focused its attention to the respondent’s
past conduct
and declared that conduct unlawful. It could not
have declared as unlawful a conduct that was still anticipated to be
done
in future. There would be no legal basis for that.
Had the court wanted to deal with a future anticipated conduct as
a
target of the order it would have granted a prohibitory interdict
clearly restraining or prohibitng a conduct of a particular
nature.
It would obviously do that based on the papers and the nature of the
case serving before it. Clearly there
was no case before court
for prohibitory interdict.
[19]
The sheriff of the court removed the fencing as directed by this
court and further restored possession
of the property to the
applicant as early as January 2017. The sheriff subsequently
did the same thing on two other occasions.
All of this occurred
before the institution of this application. From this it is so
manifest that the purpose of the court
order was achieved. The
purpose of the court order was to get the offending fencing removed
and to ensure restoration of
possession to the applicant which had
been done. The court order was fully executed and discharged.
No further benefit
or advantage would be expected to flow from it.
[20]
I was urged on behalf of the applicant to understand that the court
order to be prohibitory in
nature. That interpretation would
not only be contrary to the spirit and purport of the court order but
also defeat “
funtus officio”
doctrine.
Papers serving before me are only in respect of a contempt of court
proceedings, which by no mean seek to vary the
court order in
question. In a nutshell, there is no basis for extending the
scope of what sought to be achieved by the court
order. On the
conspectus of what I have said above, I find that subsequent fencing
and dispossession, if there was any, constituted
a fresh cause of
action which ought to have been pursued by fresh proceedings for
suitable remedy.
[21]
There is a massive dispute of facts regarding the property which is
the subject matter in these
proceedings. No application was
made for referral of the matter for hearing of oral evidence.
[22]
The court order describes the land in question as Site No.365
Zitatele Administrative Area, Corana
Location, Libode. The
respondent, who is also a resident at Zitatele Administrative Area,
Libode disputes that there is such
land demarcated as Site 365in the
locality. The respondent does not only dispute dispossessing
the applicant of the land
in question but also dispute that he fenced
the property. The respondent notes that there was removal of
fence but he further
states that no further erection of fencing
subsequently ensued. The respondent disputes having breached
terms of the court.
The respondent develops this dispute by
alleging that the property which was the target of the court order is
different from the
land she fenced on the permission of the land
owner. She further states that the sheriff removed the fencing
that was erected
on a piece of land that is different from hers.
Her piece of land is not a piece of land contemplated in the court
order.
And to that effect she attaches photographs of the lands
in question. In reply the applicant disputes everything the
respondent
is alleging. This is a perfect case for application
of what is commonly known as Plascon Evans Rule.
[5]
The dispute of facts is irresoluble on the papers and accordingly
respondent’s version must prevail. In the amalgam
of all
the issues in this case applicant’s application stands to fail
with costs.
[23]
In the result the following order shall issue:
(a)
The application is dismissed with costs.
_______________________________
A.S
ZONO
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES
For
the applicant
: Mr H.
Zilwa
Instructed
by
: ZILWA
ATTORNEYS
MTHATHA
For
the respondent
: Mr S.
Mgxaji
Instructed
by
: MGXAJI &
COMPANY
MTHATHA
[1]
Fakie NO v CC11 Systems (Pty) Ltd 2006(4) SA 326 (SCA) at 344; Civil
Practice of the High Courts of South Africa, 5
th
ed, VOL 2, Herbtein & Van Winsen Page 110G
[2]
Moosa v Knox 1949(3)SA 327 (N) at 331.
[3]
Impreferd (Pty) Ltd v National Transport Commission
1993 (3) SA 19
(A) at 107 C-H.
[4]
Herbstein & Van Winsen (supra) Page 1106.
[5]
Plascon – Evan Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634I.