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[2018] ZAECMHC 4
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Master of the High Court, Eastern Cape Division, Mthatha v Linyana N.O. and Another (468/2013) [2018] ZAECMHC 4 (23 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE HIGH COURT, MTHATHA
CASE
NO. 468/2013
Date
heard: 24 October 2017
Date
delivered: 23 January 2018
In
the matter between:
THE
MASTER OF THE HIGH COURT,
EASTERN
CAPE DIVISION,
MTHATHA
Applicant
and
BUBELE
LINYANA
N.O.
First Respondent
LINYANA
AND SOMACALA
INC
Second Respondent
JUDGMENT
LAING
AJ:
[1.]
The Applicant has brought an application for an order in terms of
which the First Respondent be held to be in contempt of two
previous
orders, brought under the same case number. In addition, the
Applicant has applied for the First Respondent to be committed
to
imprisonment for a total sum of 12 months, that the matter be
referred to the Law Society of South Africa for consideration,
and
associated relief.
[2.]
On 6 March 2008, the Applicant granted letters of executorship to the
First Respondent in respect of the estate of the late
Mr Thanduxolo
Ngqobe. After some delay and several requests, the First Respondent
furnished the Applicant with a first and final
liquidation and
distribution account. The Applicant was not satisfied with the
account and issued a query sheet, listing all the
shortcomings
thereof. The matter lay dormant for a considerable period of time,
despite the Applicant’s sending a number
of reminders. On 7
November 2011, the First Respondent submitted a further account to
the Applicant, but replete with the same
shortcomings as the previous
document. In the meanwhile, the family of the late Mr Ngqobe had
become increasingly concerned about
the lack of progress and conveyed
this to the Applicant.
[3.]
Consequently, the Applicant instructed the State Attorney to take
steps against the First Respondent. This decision culminated
in the
Applicant’s obtaining an order against the First Respondent on
27 June 2013 to the effect that the account submitted
on 7 November
2011 was declared to be non-compliant with the provisions of the
Administration of Estates Act 66 of 1965
. Furthermore, the order
directed the First Respondent to ensure compliance within a period of
14 days of service thereof and granted
leave to the Applicant to
approach the court on the same papers for an order to remove the
First Respondent from the position of
executor and to recover any
losses suffered. It is alleged that the order was served on the First
Respondent on 4 October 2013.
[4.]
The First Respondent failed to comply with the order. The Applicant
returned to court and obtained a further order on 6 March
2014,
removing the First Respondent as executor and directing him to return
the letters of executorship and to provide a statement
of account in
respect of all transactions conducted in relation to the estate
within a period of 14 days of service of the order.
The order was
allegedly served on the First Respondent on 17 March 2014.
[5.]
The First Respondent failed to comply with that order, too. As a
result, the Applicant has brought the present application.
[6.]
Both the First and the Second Respondents have opposed the
application. The First Respondent concedes that there were some
shortcomings in the first and final liquidation and distribution
account. However, he avers that he was not aware of any proceedings
brought against him by the State Attorney. He disputes that he ever
accepted personal service of the order, 27 June 2013. The First
Respondent draws attention to the sheriff’s return of service,
attached to the papers as ‘SJ2’, and points out
that it
records service of the order upon a certain Thandile but lacks an
indication that anyone actually accepted service of the
order on his
behalf. The return carries no signature and no office stamp.
[7.]
Similarly, the First Respondent disputes that he ever accepted
personal service of the order, 6 March 2014. The sheriff’s
return of service, attached to the papers as ‘SJ3’,
indicates that the order was served on a certain Malibongwe. However,
like the earlier order, the later one is unsigned and has no office
stamp.
[8.]
Accordingly, the First Respondent denies that the orders were ever
served on him. He had been unaware of them. He states that
if he had
been aware of the orders then he would have given them his
attention.
[1]
[9.]
The First Respondent’s contentions are supported by the
affidavit of a Mr Thandile Vokwana, who does not dispute that
he was
the person who accepted service of the first order. Nevertheless, he
states that he would normally have signed the document
itself,
recorded the date, and then placed it on a particular filing cabinet
for the attention of the First Respondent. In an urgent
matter, he
would have phoned the First Respondent directly who would have
arranged for the collection of the document from the
Second
Respondent’s Mthatha office and its delivery to the Flagstaff
office, which is where the First Respondent operates.
If the sheriff
ever pointed out the urgency of a matter to Mr Vokwana, then he would
mark the document as extremely urgent and
stipulate the date upon
which it was received. He cannot recall whether the sheriff ever
explained that the matter in question
was urgent.
[10.]
A Mr Malibongwe Mfokazi also deposed to an affidavit in support of
the First Respondent’s case. He neither admits nor
denies that
he accepted service of the second order. If the matter was urgent, as
explained to him by the sheriff, then he would
have indicated as much
on a piece of paper and attached this to the document. He would have
phoned the Second Respondent’s
main office to arrange for
collection. Moreover, in the event that Mr Mfokazi had indeed
received the document, he would have signed
and dated it.
[11.]
The issue to be determined is straight-forward: whether the First
Respondent was ever aware of the orders and the contents
thereof.
Only in the event that this was so would it be necessary to decide
whether the Applicant has met the remaining requirements
for a
contempt of court -application.
[12.]
Civil contempt is the wilful and
mala
fide
refusal or failure to comply with an order of court other than a
money judgment.
[2]
To elaborate,
the requirements for contempt are: (a.) the order; (b.) service or
notice; (c.) non-compliance; and (d.) wilfulness
and
mala
fides
.
It is necessary for an applicant to demonstrate the existence of such
requirements beyond reasonable doubt.
[3]
Once the applicant has proved the order, service or notice, and
non-compliance, the respondent carries an evidentiary burden with
regard to wilfulness and
mala
fides
.
If the respondent fails to provide evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
then the requirements for contempt will have been met.
[4]
[13.]
In the present matter, the First Respondent has pleaded that there
was no personal service of the orders. Accordingly, he
had not been
made aware of them. Knowledge of the orders has long been recognised
in South African law as a fundamental prerequisite
for a contempt
application.
[5]
Importantly, the
lack of actual service of the order directly on the respondent is not
fatal to the applicant’s case, provided
that the applicant can
demonstrate that the respondent knew about the order.
[6]
[14.]
Here, the Applicant has alleged that the sheriff served both orders
on the First Respondent, as demonstrated by the returns
of service
attached to the papers as ‘SJ2’ and ‘SJ3’,
respectively. The First Respondent points out, however,
that the
returns of service do not,
ex facie
, show that the sheriff
effected personal service. The affidavits of Mr Vokwana and Mr
Mfokazi do not dispute that they may have
accepted service on behalf
of the First Respondent but neither can take the matter much further.
They aver that they would usually
have signed and dated the orders
and followed the usual procedures to arrange for collection so that
the orders could be taken
to the Second Respondent’s main
office for further attention. Interestingly, each order bears the
signature of either Mr
Vokwana or Mr Mfokazi; both orders bear date
stamps. Quite why these particular orders never reached the attention
of the First
Respondent remains a mystery.
[15.]
Generally, in proceedings on notice of motion, where disputes of fact
have arisen in the affidavits, a final order may be
granted if those
facts averred in the applicant’s affidavits which have been
admitted by the respondent, together with the
facts alleged by the
respondent, justify such an order.
[7]
As this matter stands, the Applicant has not made any express
averment to the effect that the First Respondent knew about the
orders. Rather, the Applicant has relied on the sheriff’s
service of the orders on staff employed or acting as agents for
the
Second Respondent to draw the inference that the orders would
consequently have come to the knowledge of the First Respondent.
In
response, the First Respondent explains what would usually have
happened upon receipt of the orders but is adamant that he remained
unaware thereof. He does not admit the inference sought to be drawn
by the Applicant.
[16.]
It may happen that the respondent’s denial of a fact alleged by
the applicant may not be such as to raise a real, genuine
or
bona
fide
dispute of fact. To the extent that a court is satisfied with the
inherent credibility of the applicant’s factual averment,
it
may proceed on the basis of the correctness thereof and include this
fact among those upon which it determines whether the applicant
is
entitled to the final relief which he or she seeks.
[8]
However, it cannot be said that this situation presents itself in the
present matter. The First Respondent’s denial of any
knowledge
of the orders is in direct conflict with the Applicant’s
inference that the service thereof on Mr Vokwana and Mr
Mfokazi would
have brought the orders to the attention of the First Respondent,
whose non-compliance would give rise to an evidentiary
burden in
relation to wilfulness and
mala
fides
.
This creates a dispute of fact, which must be resolved in accordance
with the established principles.
[9]
[17.]
As it has been observed, there are exceptions to the above. These
include the situation where the allegations or denials of
the
respondent are so far-fetched or clearly untenable that the court is
justified in merely rejecting them on the papers.
[10]
As much as the First Respondent’s assertions raise serious
questions about the management of his practice and the adequacy
of
the Second Respondent’s arrangements in relation to how process
is treated, it cannot be denied that matters are sometimes
overlooked
by staff or simply not accorded the priority that they deserve.
Mistakes do occur. Without in any way suggesting that
either the
First or Second Respondent can be condoned for allowing the situation
to have arisen, the operation of more than one
office can sometimes
lead to misunderstandings between employers and employees. The point
to be made is that the First Respondent’s
denial of any
knowledge of the orders is not so far-fetched or clearly untenable as
to be rejected out of hand. Whereas his assertions
may be tenuous and
may test the limits of plausibility, they are nevertheless sufficient
to prevent the court from being persuaded
that the Applicant has
proved that the prerequisites for contempt have been met. The
Applicant has not demonstrated, beyond reasonable
doubt, that the
First Respondent had knowledge of the orders.
[18.]
However, the matter cannot be permitted to rest there. The Applicant
has sought an order in terms of which not only is the
First
Respondent held to be in contempt but also that the matter be
referred to the Law Society of South Africa for consideration.
This
deserves closer attention.
[19.]
The First Respondent has not attempted to deny that the sheriff
served the orders on employees of the Second Respondent. Similarly,
neither Mr Vokwana nor Mr Mfokazi has attempted to deny that he
accepted service. At best, the employees in question have disclosed
an ambivalence towards the matter; they do not dispute service but
they cannot recall the circumstances at the time. In light of
the
signatures and date stamps that appear on both the returns of service
and the orders themselves, it must be accepted that the
First
Respondent cannot but admit that service was carried out on the
Second Respondent’s employees. If that is so, then
for the
First Respondent’s attention not to have been drawn to the
first court order would have been a major shortcoming.
For his
attention not to have been drawn to the second court order would have
been not only an odd coincidence but also an issue
that pointed to a
significant flaw in the Second Respondent’s operational
arrangements.
[20.]
As a director of the Second Respondent and as an attorney, the First
Respondent has certain responsibilities. As a director,
he must
ensure that the Second Respondent’s staff are sufficiently
trained or instructed to deal effectively with any process
that is
served by the sheriff. As an attorney, the First Respondent owes a
duty to his clients and the public to ensure that proper
legal
services are provided; he owes a duty to his colleagues to ensure
that the reputation of the profession is upheld; and, by
no means
least, he owes a duty to the courts to ensure that orders are treated
with the respect and compliance that they demand
and that the
administration of justice is in no way compromised. The service of a
court order should have led to an immediate and
appropriate response
by the First Respondent. This never happened.
[21.]
In relation to the subject matter of the first and second orders, the
First Respondent appears to concede, grudgingly, that
the first and
final liquidation and distribution account may have contained
shortcomings. However, he professes ignorance with
regard to the
actual cause of the Applicant’s complaint,
[11]
despite the latter’s having indicated that the background facts
to the application are contained in the record of Case No.
468/2013.
[12]
There is no
explanation for why the First Respondent could not have requested the
Applicant to have furnished him with a copy of
the above record
should he indeed not have been in possession thereof.
[22.]
There is no indication that the First Respondent has appealed against
the orders that form the subject of the present matter.
Of
considerable concern is the total absence of any suggestion that the
First Respondent still intends to address the findings
made and the
directions given by the court in terms of the orders in question. If
there is insufficient proof of contempt displayed
by the First
Respondent then there is certainly a troubling air of indifference.
[23.]
The proper conduct of attorneys is regulated by the provincial law
society with jurisdiction in a matter. To the extent that
an attorney
fails or refuses to conduct him- or herself properly, various
sanctions may be applied.
[13]
The Applicant has sought an order in terms of which the matter is
referred to the Law Society of South Africa but it would be more
appropriate for the matter to be considered by the Cape Law Society
in view of the jurisdiction that it enjoys in relation to the
First
Respondent. His role as executor with regard to the estate of the
late Mr Ngqobe and the apparent failure of the Second Respondent’s
operational arrangements indicate the need for the Cape Law Society
to investigate the matter further. The possibility of professional
misconduct on the part of the First Respondent cannot be excluded.
[24.]
The court in the present matter is not convinced that the Applicant
has demonstrated that the requirements for contempt exist.
There is
no proof, beyond reasonable doubt, that the First Respondent was
aware of the orders. Nevertheless, the Applicant has
made out a case
for the referral of the matter to the relevant law society for
consideration.
[25.]
Ordinarily, costs follow the event but there may be a departure from
this rule where there are good grounds for doing so.
[14]
Here, save for the referral of the matter to the law society, the
Applicant has been unsuccessful. It would not, however, be
appropriate
for the court to order the Applicant to pay costs. If the
First Respondent had conducted himself properly with regard to the
administration
of the estate of the late Mr Ngqobe and if he had made
proper arrangements for his employees to have dealt effectively with
the
orders that form the subject of this matter, then the application
would not have been necessary at all. Moreover, the First
Respondent’s
failure or refusal to disclose any intention to
address the findings made or directions given under the orders reveal
an unhealthy
disdain that should not be rewarded with a favourable
costs order. The court is satisfied that there are good grounds upon
which
to depart from the usual rule.
[26.]
In the circumstances, the following order is made:
(a.)
the
application is dismissed, subject to the sub-paragraphs that follow;
(b.)
the
Registrar is directed to make a copy of the contents of the record in
respect of the proceedings under Case No. 468/2013, including
the
present matter, and to provide same to the Cape Law Society for
consideration and further action; and
(c.)
there
is no order as to costs.
____________________
JGA
Laing
Acting
Judge of the High Court
Appearances:
For
the Applicant: Adv Lwazi Kubukeli, instructed by the State Attorney,
Broadcast House, 94 Sisson Street, Fort Gale, Mthatha
For
the Respondents: Adv Johan Bothma, instructed by Linyana &
Somacala Inc, 23 Sprigg Street, Mthatha
[1]
The First Respondent goes so far as to allege that ‘I was
genuinely unaware of their existence and service upon me and
I have
always been acting in good faith in this regard.’ See p 42 of
the record.
[2]
See Harms DR ‘Civil Procedure: Superior Courts’ in
LAWSA
(Volume 4, third edition) para 19.
[3]
See
Fakie NO v CCII Systems (Pty) Ltd
[2006] JOL 17080
(SCA),
at [42].
[4]
Ibid. See, too,
Tasima (Pty) Ltd v Department of Transport and
Others
[2016] 1 All SA 465
(SCA), at [18].
[5]
See
Godefroy v The State
(1890) 3 SAR 113. The principle that
prior knowledge of the order is required has been followed
consistently in the case law
that has followed. See
Eaton, Robins
& Co v Voges
(1909) 19 CTR 140,
Consolidated Fish
Distributors (Pty) Ltd v Zive
1968 (2) SA 517
(C), and most
recently
Fakie NO
[2006] (n 3 above).
[6]
See
Botha v Dreyer
(1880) 1 EDC 74
,
Frank v Van Zyl
1957 (2) SA 207
(C),
Consolidated Fish Distributors
1968 (n 5
above), and
Townsend-Turner v Morrow
2004 (2) SA 32 (C).
[7]
See
Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A), at 368.
[8]
Ibid.
[9]
In other words, to paraphrase the case law, the court may grant a
final order only in the event that those facts averred by the
applicant and admitted by the respondent, together with the facts
alleged by the respondent, justify such an order.
[10]
See
Plascon-Evans
[1984] (n 7 above), at 368.
[11]
The Second Respondent states ‘that there may be some omissions
and/or failures in it, such may never have been intended
by me at
all’, at p 36 of the record. He goes on to say ‘that
there may be some inaccuracies and an inconsistency
in the said
report does not necessarily mean that it was an indication of lack
of care and diligence on my part in dealing with
the deceased
estate’. Furthermore, he alleges that ‘I am still in
darkness as to what the actual cause of complaint
as such is not
stated in this affidavit [sic].’
Op cit
.
[12]
See pp 12-13 of the record.
[13]
See, for example,
Incorporated Law Society, Transvaal v Bothma
[1962] 4 All SA 282
(T), where the law society in question brought
an application against the respondent for his removal from the roll
of attorneys
by reason of the gross neglect of his practice.
[14]
See the general discussion about costs in Ellis I ‘Costs’
in
LAWSA
(Volume 3(2), Second Edition Volume), at 392.