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[2018] ZAECMHC 64
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Mtshizana-Base and Others v Maxhwele and Others (3351/2018) [2018] ZAECMHC 64 (20 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION-MTHATHA
Case
No. 3351/2018
In
the matter between
NOMAKHWEZI
MTSHIZANA-BASE
First Applicant
BUYISWA
ZWEDALA
Second Applicant
MBIKO
LINDISWA
Third applicant
NOBELUNGU
LUMKWANA
Fourth applicant
LELETHU
LUMKWANA
Fifth applicant
MBAMBELELI
SIWAPI
Sixth Applicant
MBAMBELELI
SIWAPI
Seventh Applicant
and
NOSIZWE
MAXHWELE AND SIX OTHERS
First Respondent
ONKE
NYATHI
Second Respondent
VUYANI
MADUBELA
Third Respondent
THEMBISILE
MKHANZI
Fourth Respondent
MTETELELI
MKHOHLI
Fifth Respondent
SISA
MANYADU
Sixth Respondent
KING
SABATA-DALINDYEBO
LOCAL
MUNUCIPALITY
Seventh Respondent
JUDGMENT
(CONTEMPT OF COURT)
MNYATHELI
AJ
Introduction
[1]
Before me is an application brought on the 11th September 2018, on
the basis of urgency
to declare or hold the Respondents in
contempt of an Order of Court issued on 6 September 2018 under
Case number 3351/2018
(“the Order”)
. The
Order, per Notice of Motion
(“the Notice”)
is, in
the main, to the following effect:
‘
1.1
That the Respondents are declared to be in contempt of the order
granted
by
Dawood J on 6 September 2018 under Case Number 3351/2018;
1.2
That the Respondents be directed to remedy and cease such contempt
with
immediate effect upon service of the court order;
1.3
That should the Respondents fail to remedy and cease the contempt
that
the Respondents be committed to prison for a period of thirty
(30)
days;
2
1.4
That the First and Sixth Respondents be ordered to remove the wall
that has been constructed
on the site of the First Applicant within
48 hours of service of the order;
1.5
Should the Respondents fail to remove the wall on the property of the
First Applicant that
the Respondents be committed to prison for a
period of thirty (30) days;
1.6
The costs of suit;
1.7
Further and/or alternative relief.’
[2]
An affidavit of the Applicant with annexes accompanies the Notice.
Respondents oppose
the Application and have filed an Answering
affidavits to which the Applicant filed a Replying affidavit.
[3]
The application follows a series of events and shenanigans between
the warring
parties regarding allegations of contempt,
postponements and interpretation of orders obtained from and
before colleagues
and other processes which apparently
necessitated the instant
application
.
[4]
In opposing the application Respondents deny all the factual
allegations of the
Applicant.
They also put in issue the validity of the Order on the
strength of which the contempt application is brought.
[5]
Due to that, and lack of clarity and stark contradictions in the
positions and
affidavits
of the parties I elected to afford myself sufficient time to
meticulously look into the facts and attendant issues, in
order to
decide the matter.
[6]
It will be apparent that, although the matter initially came as
urgent, it had all but lost
such lustre of urgency, at the time that
it came as an opposed application before me in the afternoon of 19
September 2018, unless
one would redefine and
attach
a
new meaning to what urgency is. The application is brought
against only
First and Sixth Respondents.
[7]
I mention that the matter has its genesis on a main application for
an interdict which was
allegedly also ripe for hearing, but by
agreement between the parties, the instant one (the contempt
component thereof) was given
priority. I will, therefore, confine
myself to the exigencies of the instant application.
[8]
To navigate my way through the mire of papers before me and in order
to place the matter
in
perspective
it
is necessary to set out the chronological background to the pertinent
events that led to this application and eventually the
order or
orders that are a feature, and lie at the heart thereof before this
court, and perhaps then venture a
decision.
B
ackground
[9]
On
31 July 2018,
pursuant to an application by Applicants,
this court per Griffiths J issued an Interim Order, (“the
Interim Order”)
as it seems, returnable on the 28 August 2018
to the following effect:
‘
It
is ordered by consent that:
1.
The applicants be and are hereby granted leave to bring this
application as one
of urgency in terms of
uniform
rule
6(12) and the court
dispenses
with
the forms and service provided for in the
uniform
rule
6(5).
2.
A
rule nisi
do hereby issue calling upon the respondents to
show cause, if any, before this Court on
Tuesday, 28 August 2018
at
10h00
in the forenoon or so soon thereafter as Counsel may
be heard why the following orders should not be made final:
2.1
The first, second third, fourth, fifth and sixth respondent’
(“the respondents”)
be and are hereby interdicted and
restrained from intimidating, threatening, and evicting applicants
from their homesteads and/or
plots in
Bhongweni Phase 1, Zimbane
Administrative Area, Mthatha;
2.2
The respondents be and are hereby interdicted and restrained from
preventing the applicants’
access of (sic) their homesteads
and/or plots in
Bhongweni Phase 1, Zimbane Administrative Area,
Mthatha.
2.3
The respondents be and are hereby directed to forthwith restore
undisturbed and unhindered
possession and access to the
applicant
(sic),
of their homesteads and/or plots in
Bongweni
Phase 1 Zimbane Administrative Area, Mthatha
3.
That
paragraph
2.1, 2.2, and 2.3 shall operate as interim relief and/or
mandamus
in
the applicants, favour pending he (sic) finalization of this
matter.
4.
In the event that the respondents and any other person(s) acting in
concert with
them failing to pay heed and / or abide by the terms of
this order the
Sheriff
of the
High Court
duly assisted
by members of the
South African Police Services
under the
directive of the Sheriff, be granted leave to take all reasonable
steps to assist the Sheriff in effecting the orders
as per
paragraphs
2.1, 2.2 and 2.3
5.
Costs are reserved
BY
ORDER OF COURT
REGISTRAR’
[10]
On
16 August 2018,
from what I can gather from the papers and
material filed of record, Nhlangulela DJP, apparently faced
with a request for
a certificate for directions, directed that
applicants issue papers and serve them on the respondents on
21 August 2018
@ 10h00 or so soon thereafter as a duty Judge may
direct.
[11]
On
21
August 2018
the
matter came before Tokota J and was postponed to 28
August 2018 with the issue of costs
to be costs in the cause. There
is a
date
stamp
affixed on the letter of the Order of Tokota J indicating a
date of
24
August 2018.
It is not immediately clear what the purport of the
stamp and the date thereon is
[1]
.
[12]
On
28 August 2018
the matter came before Naidu AJ and was
again postponed to 04 September 2018.
[13]
On
04
September 2018,
Mbenenge
JP
ordered that the matter be stood down till 6 September 2018.
[14]
From this point onwards, it seems that the matter was attended by
some confusion when it came before
Dawood J, in that the latter did
not find the full letter of the order on the basis of which
the contempt proceedings could
be proceeded with. What was
before her was an incomplete order that did not give her to conclude
that contempt of
an Interim Order had occurred. This
confusion appears to have taken place on
06 September 2018.
[15]
Upon examination of the situation it appears from the notes and
inscription of my Sister Dawood J,
that the Interim Order (of 31 July
2018 per Griffiths J) before her did not indicate that an interim
order had been granted and/or
served. From what I can decipher
from her notes she concluded that
even
if such an
order
existed
it was not an order that was issued and served, unfortunately.
[16]
I pause here to refer to the pertinent averments in the Founding
affidavit of the
applicants:
Paragraph
23 thereof:
“
While
preparing the application for contempt, our attorneys of record
became aware that the incomplete order had been served. She
instructed our correspondent attorneys to find the court file so that
the order can be
rectified
(the underlining is mine). Our correspondents were, however,
advised by the Registrar that the court file was missing. This
file only became available on 5 September 2018, the day before our
hearing, and the order was
rectified.
In the meantime
we
had no choice than to institute proceedings based on the served, but
incomplete order, as our rights were
continuously
being infringed (sic) by
the
first and the sixth respondents’ in contravention of the court
order”
(own
underlining)
[17]
This ‘incomplete order’ appears to be what Dawood J was
referring to in her notes.
The deponent to the Founding Affidavit continued:
Paragraph
24 thereof:
“
On
6 September 2018 the court dismissed our application for contempt as
the
complete
order had not been served on the first and the sixth respondents.
Dawood J then granted the original order of Griffiths J and
instructed that it be
served on the first and the sixth
respondents in its rectified form. The order is
attached
as
NB3
”
(own underlining).
Paragraph
25 thereof:
“
The
order was served on the 6 September 2018 and the returns of service
are already attached as NB 2. We have no choice other
than to
institute fresh proceedings as the conduct of the first and the sixth
respondents persists. We are begging this court
to please hear
this matter as one of urgency and to finally give us some form of
justice, which has so far been denied us.”
[18]
From the above narrative it appears that there may have been quite a
number of
anomalies that took place on
the date of the 6th September 2018, not the least the
following:
18.1
An application for contempt was brought before Dawood J based on the
order of Griffiths J;
18.2
The letter of the above order was found to be defective or incomplete
yet it had been served on the First
and Sixth Respondents (on
Applicant’s own averment (supra));
18.3
This application for contempt was dismissed by Dawood J for want of a
clear interim order and proper service;
18.3
The same (dismissed) order was ‘rectified’ (it's not
clear by whom);
18.4
The same order was granted but not as an order of Dawood J but as the
rectified order of Griffiths J. See Paragraph 39 of Applicant’s
Founding
Affidavit under the Heading:
Events
following the Order of the 06 September 2018:
“
It
is important that I advise this honourable Court, that the rectified
order was served on the first and sixth respondents shortly
after the
court had adjourned. The respondents were served with the
rectified
order
so as to
augment
(sic) the interim order granted by Griffiths J and not that a new
interim relief was issued by Justice Dawood!”
[19]
Applicants’ position is, in summary, that they bring the
instant applicant for contempt on an
urgent basis, as a fresh
application because the earlier application for a committal
for contempt, suffered from a legal
defect, in that the letter of the
order showed an incomplete essaying of the same, with the result that
it was dismissed.
Applicants have also sought to bring new
allegations that the conduct of the respondent in perpetrating the
very things that they
had been restrained from, are continuing.
They also attached copies of photographs about which they
allege respondents
are continuing to built a wall around applicants’
property contrary to the prohibition given by the interim
order.
They allege that a rectified order was properly
served on the Respondents, First and Sixth.
[20]
Respondents’ case, on the other hand, is that of a denial of
all the facts and allegations made
by Applicants. They deny
that they have acted in contempt of the order of the 31 August 2018
and assert that they have, ever
since the order of the 31 August
2018, acted in compliance therewith. Respondents, however, seem
to refer to an order of
the 31August 2018 and not that of the 6th
September 2018 that Applicants are complaining about. I am not
certain whether
this was a mistake on their part; but there are some
difficulties also with Applicants’ reference to the various
orders.
[2]
More on this below, though.
[21]
Respondents have, on the very pertinent issue of whether there is
evidence that
what is alleged against
them did take place, to use their adverb: ‘vehemently’
denied having been in contempt of the
order, whichever order. They
have sought to provide facts which, objectively viewed, put
the proverbial cat among
the
pigeons
and
rendered doubtful, as to be a nullity, the allegations of the
Applicants.
[22]
On behalf of the Sixth Respondent is it averred on the papers that it
only acted in furtherance
of its trade as a builder in
the area regarding other properties not connected with the
applicants, without interfering with the
Applicants’ property
or acting in contravention of the order (of the 31 August 2018); for
example, where the applicant averred
that Sixth Respondent was
telephoned by the applicants’ attorneys and warned to stop
building a wall before the house of
applicant (s), they have denied
this flatly and raised improbabilities of that happening.
The
Issue (s)
[23]
The issues are crisp and have been alluded to by both counsel for
A
pplicant
and
the Respondents as such. They are:
23.1
whether there was a valid order;
23.2
whether such order was known by, or the respondents were aware of the
order;
23.3
whether the valid or validly issued order was served on the
respondents
23.4
whether despite such awareness they acted in disobedience or contempt
thereof;
23.5
whether Sixth Respondent would be liable for contempt based on
process
served on the First.
These
are issues of fact to be ventilated in evidence.
The
Law
[24]
It is trite that non-compliance with an interdict granted by a civil
court constitutes a contempt of
court.
[3]
The same observations were made in the
Protea
Holdings
Ltd v Wriwt
[4]
[25]
The following are in summary the basic principles that govern a
charge of
contempt
of court requiring committal by a court:
25.1
Contempt
of Court
is
a criminal offence. It is classified as an offence against
the administration of justice. It consists in the unlawful and
intentional
violation
of the dignity, repute or authority of a judicial officer, in his or
her judicial capacity or publishing information or
comment concerning
a pending proceeding which has the tendency to influence the outcome
of the proceedings or to interfere with
the administration of
justice in such proceedings
[5]
25.2
It is the kind of a criminal offence that requires,
inter
alia,
for
its commission,
specific intent or
dolus
for it to have been proved. The element of intention
in the commission of this crime is of particular significance since
it ordinarily
refers to the metal attitude of the alleged perpetrator. This
is to be distinguished
from cases of criminal liability based on
culpa
or negligence as no one cannot
be said to have been
negligently
contemptuous
in our law (my emphasis).
25.3
This is in consonance with the general principle of criminal
liability in our
criminal jurisprudence; that of
actus
non facit reu nisi mens sit rea
(an
act is
not punishable unless its commission was accompanied by a blameworthy
state of mind).
[6]
Fault or blameworthiness in this case is a conscious, as
opposed
to a negligent element of the offence.
25.4
It is trite law that the standard of proof of guilt in all criminal
offences is that
of
proof beyond all reasonable doubt. This is an immutable
and
time-honoured
principle of our criminal jurisprudence;
25.5
For an application for committal for contempt of court to succeed, it
is
required
that it must satisfy all the elements on the criminal standard of
beyond
reasonable doubt. Once the applicant has proved a [valid] court
order, service
of notice and Nono-compliance, the Respondent will bear the
evidentiary
burden to show a reasonable possibility that non-compliance was
not
wilful or
mala
fide.
See
Fakie N O v CC 11 Systems (Pty) Ltd
[7]
.
25.6
Mens
rea
is a critical element for criminal responsibility either in the
form of
dolus
directus, dolus indirectus or dolus eventualis
but
not
culpa.
(own
emphasis).
[26]
As a general rule he (or she) who alleges must prove.
[27]
Failure to comply with an order of court is an offence under this
rule and a party to a civil case
against whom a court has given an
order, and who intentionally refuses to comply with it, commits
contempt. To hold any party
therefore to be in contempt one
must satisfy the above elements and an application to hold any party
to be in contempt of court
requires not only evidence of an act
committed by the respondent but that such act was committed with a
specific intent
(dolus)
, not negligently
(culpa).
Analysis
[28]
The first enquiry to be made in my view, is whether, on the facts of
this matter, there
is evidence or admissible proof that
there was a valid order or an order validly issued and served on the
First and Sixth Respondents,
which was consciously
flouted by them.
[29]
In so far as the First Respondent is concerned, it is common cause
that she is a community
leader and a Head-woman in the
area concerned. The allegation against her is that
she was personally served
with an incomplete order of the 31
July 2018 that was urgently interdicting her from evicting the
Applicants
from their homesteads, and restraining her or
preventing the Applicants from accessing their
homesteads.
[30]
Applicant has alleged that on being personally served with the Order
she also accepted service on
behalf of the Sixth Respondent. Proof
of this service is per Attachment
NB 2
on page 26 of the
Founding papers being a Deputy Sheriff L Msindo’s Return of
service dated 6 September 2018 at Bongweni
Location, Zimbane
Administrative Area Mthatha (Place of Residence).
[31]
The allegation is then made that the application for holding the
Respondents in contempt was dismissed
as the complete order had not
been served on the First and Sixth Respondents. Then
goes the alleged ‘granting’
of the original order of
Griffiths J, with an alleged instruction that it be served on the
First and Sixth Respondents
‘in its rectified form’ The
order is attached as
NB3.
[32]
NB3 is the incorrect or incomplete order. If Applicants base
their contempt application
on such an order, there will be a
definite problem as an application based on such an
order was dismissed.
[33]
Apart from the technical points addressed above, there is the issue
of evidence of the
actual commission of the contempt.
This should consist of evidence of conduct of either a
positive action or an omission
on the part of the Applicants to
comply with a valid order of court, in a conscious way. I use
the epithet, ‘conscious’
in order to account for the
element of
dolus
for an offence of contempt.
[34]
I have not found any evidence of an act consistent with or showing
perpetration of contempt on the
part of the First Respondent in the
allegations of Applicants both in their Founding papers and in their
Reply, except an allegation
that on 7 August 2018, the contractor,
the Sixth Respondent in this matter ‘arrived at the site of my
tenants and continued
building a wall around the property’.
Not only would this not be
admissible
against First Respondent it relates to events that would have taken
place before the impugned order of the 6th September
2018.
[35]
The question of liability for committal for contempt, of the Sixth
Respondent, also brings with its
train, a series of problems, some of
which have already been referred to above, namely:
35.1
contempt is a criminal offence;
35.2
liability for contempt requires specific intent
(dolus);
35.3
for criminal liability the standard of proof is one of proof beyond
all
reasonable
doubt
35.4
no vicarious liability can be discerned in respect of a charge of
contempt of court.
[36]
Secondly the evidence sought to be used in support of allegations of
flouting an
order of court by the Sixth
Respondent is inadmissible as it relies on the First Respondent’s
alleged acceptance of service
on behalf of the Sixth Respondent as
well. This cannot be countenanced: even if First Respondent is
a royal
head with authority over the Sixth. Service of the
notice intended for the Sixth Respondent on the First, in
other
words, means that no service was effected on the Sixth
Respondent. In any event, Sixth Respondent denies that he
stated that
he was ordered by the First Respondent to erect the wall
in issue. He denied the alleged conversation with
Applicants’
attorneys.
[37]
I have myself found it hard to believe, as to how an attorney would
decide to call the
Sixth respondent (a lay-person) when
he has a counterpart, on record; another attorney or legal
practitioner, about such
a crucial matter. It is also not clear why,
if Applicant had deemed it proper to serve the notice on the
First Respondent
they do not then call her, when things seemed
to go wrong. I do not, however, need to investigate that in any
detail for
purposes of this application, save to find that in
the absence of concrete evidence of the telephone call, it
is
difficult to accept the allegation of the
applicants on this score.
[38]
Applicants have argued, however, that the Oder was rectified and that
Dawood J did
not make a new one but rectified an
existing order. That is very
difficult
to
comprehend. A dismissed order
can scarcely be rectified.
See
Purchase v Purchase
[8]
[39]
Quite honestly I have serious difficulties with the above scenario.
Firstly, an order once dismissed
ceases to exist and it cannot
later be rectified. A new application ought to have been
presented before a Judge, whether
it is Dawood J or another Judge for
another order, whether interim or final, on the strength of which
contempt proceedings could
then be prosecuted, if it becomes
necessary, possibly with new
evidence.
[40]
It is also difficult to understand how the rectification was
effected; who effected it and what legal
process was followed in
effecting it. An application would have been
an obvious approach, with all the
formalities of an application for
rectification, if and when the earlier contempt application
was dismissed on account of
it being defective.
[41]
In the applicant’s papers no such application is apparent and
it is unclear to me
how the Griffith J’s order was
‘
augmented’.
One cannot conceivably augment a
non-existent order, having been dismissed by Judge Dawood. There
are other
difficulties: NB 3 is the wrong or incomplete, but the
served order. The latter service having taken place AFTER the
alleged
‘rectification’ and alleged instruction of my
Sister Dawood J.
[42]
The above scenario is both incomprehensible and inconceivable; and as
pointed out
above, a
dismissed application for contempt cannot revive or perfect an
otherwise defective or invalid
order. This application for contempt did not only need to be
based on new or continuous facts of alleged contraventions,
but on a
new order
altogether.
[43]
There is also the issue of service. It does not come out clearly that
service was
effected
properly. On the one hand it is alleged that there was service of NBS
3, yet NBS 3 is the wrong and incomplete Order;
the question must
therefore be: What
exactly was served or sought to be
served on the Respondents? On her
own
admission
the deponent on behalf of applicants says, “
we had no choice
but to
institute
proceedings based on the served, but incomplete order as our
rights…”.
The
absurdity of this assertion is not hard to find. In my view, for as
long as this
‘fresh’ application for contempt relies on the 6
September 2018 processes, it
cannot
have legal efficacy, for on that date no valid order was served.
[44]
Assuming, for any reason, that the conclusions I make, based on the
legal defects and anomalies I point
out hereinabove are not correct,
there is the issue of evidence of the commission of the contempt
complained of. I have not
found any admissible or reliable
evidence to support the complaint of the applicants. The
deponent on behalf of the applicants
alleges that service of the
order was effected on the first respondent, who is apparently a local
community leader there. It,
thereafter, does not say what the
first respondent did as a manifestation of contempt of the order of
court, whether valid or not
valid.
[45]
Further, the allegation, which has not been gainsaid is that the
sixth respondent
was served through
the first. This is most unusual, and assertion that sixth
respondent said he was instructed by the first
to continue erecting a
wall cannot be admissible against the first respondent. It is in any
event denied by the sixth respondent.
What then are the issues
that call for decision in this matter?
Dispute
of facts
[46]
I have considered whether the apparent dispute in the facts of this
matter warrants that the matter
be treated in terms of the principles
enunciated in,
inter
alia,
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[9]
.
I came to the conclusion that such an approach would not be in
accordance
with
justice, and would unduly strain and delay the justice direly needed
to
dispose
of
this matter. Secondly the question before me is finally whether
there was a valid order that was consciously contravened.
On the
analysis of the objective facts above, regarding this question, I do
not think that it is necessary to refer the matter
to evidence. The
pertinent issues attendant upon this case do not require leading of
oral extraneous evidence beyond the
papers on motion. The
disputes are not germane to the issues, to necessitate leading of
oral evidence. The main application
is still pending.
Conclusion
[47] The
conclusions to which I therefore come, are that the applicant has
failed to convince this court
that at the material time there was a
valid court order which was then flouted by the respondents or that
the Respondents acted
mala fide
. Even if such an order
did exist, service thereof on the Respondents, or awareness of its
existence has not been proved.
Even the evidence of commission
of the offence complained of is either parlously inadequate and/or
inadmissible in respect
of both the First and the Sixth Respondents.
No acceptable proof therefore, of the commission of an offence
in terms of the
principles governing criminal contempt has been
demonstrated. The phots are themselves not only illegible but
they are strongly
disputed and are unhelpful to this court. It is
suggested that the applicants pursue their case on the return day of
the rule (if
valid) and ventilate their issues there, minus the
contempt issues.
Order
[48]
In the result the following order is made:
The
application is dismissed with costs
M
MNYATHELI
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Applicants: Adv Sambudla
Instructed
by the Legal Resource Centre
Grahamstown
On
behalf of the Respondents: Mr Qina
Instructed
by T Qina & Sons
Mthatha
Matter
heard on:
20 September
2018
Judgment
delivered on: 20 November 2018
[1]
There is also a copy of a
letter apparently emanating from the Legal Resource Centre
(Applicants’ representatives) dated
28 August 2018 and
addressed to the Registrar requesting that the interdict and the
contempt matters be set down for hearing
either the
04
September 2018 or 06 September 2018.
Regrettably
this letter is not located within any pagination, and it is not
clear what sequence it is intenintendedded to follow,
save for the
fact that its contents are relevant to the matter and its date stamp
is the
28 August
2018,
being the
return day of the rule
nisi
issued by
Griffiths J.
[2]
See paragraph 17 of Applicants’ Founding
Affidavit
[3]
See S v Beyers 1968 (3) SA 70 (A)
[4]
1978 (3) SA 865 (W)
[5]
See Snyman Criminal Law 5th Edition
Lexinexis 2008 p325
[6]
Burchell & Hunt South African
Principles
of Criminal Law Vol. 1
[7]
2006 (4) SA 326
[8]
1960 (3) SA 383 (N)
[9]
[1984] 2 All SA 377
(A); also in 1984(3) SA 362
(A)