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[2017] ZALMPPHC 41
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L L B Beleggings BK v Morothong Taxi Association and Others (743/2016) [2017] ZALMPPHC 41 (30 November 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 743/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
L
L B BELEGGINGS
BK
1
ST
APPLICANT
and
MOROTHONG
TAXI ASSOCIATION
1
ST
RESPONDENT
REGONA
TAXI
ASSOCIATION
2
ND
RESPONDENT
MPHEBATHO
TAXI ASSOCIATION
3
RD
RESPONDENT
POLOKWANE
– TEMBISA TAXI ASSOCIATION
4
TH
RESPONDENT
POLOKWANE
– GERMISTON TAXI ASSOCIATION
5
TH
RESPONDENT
MALESELA
MOSES MODIBA
6
TH
RESPONDENT
DAVID
TSIRI
7
TH
RESPONDENT
CHARLES
LETA
8
TH
RESPONDENT
CONNIE
MASHALANE
9
TH
RESPONDENT
PAUL
MANCHIDI
10
TH
RESPONDENT
BOLOCHANA
JOHANNES MANZINI
11
TH
RESPONDENT
TAU
SILAS
SEBOPELA
12
TH
RESPONDENT
SOLLY
PHOLOGA
13
TH
RESPONDENT
MALATJI
BATA
14
TH
RESPONDENT
BOIKY
NDLOVU
15
TH
RESPONDENT
PETER
MASHALANE
16
TH
RESPONDENT
SILAS
MACHETE
17
TH
RESPONDENT
MOGALE
PHINEAS RAMMALA
18
TH
RESPONDENT
JOSIAS
RABOTLHALE
19
TH
RESPONDENT
PAULOS
MASEKANA
20
TH
RESPONDENT
ALPHEW
TEFU
21
ST
RESPPNDENT
JOHANNES
MOLETE
22
ND
RESPONDENT
EPHRAIM
MOKOMA
23
RD
RESPONDENT
JOSIAS
PHOFEDI
24
TH
RESPONDENT
GABRIEL
NESUTHUNYE
25
TH
RESPONDENT
PETER
MASHALANE
26
TH
RESPONDENT
LESIBA
ALFRED KHWINANA
27
TH
RESPONDENT
STEVEN
MOLOKO
28
TH
RESPONDENT
MADICE
MOLOKO
29
TH
RESPONDENT
SASCO
MOLOKO
30
TH
RESPONDENT
NDITSHENI
RASHIVHOMBELA
31
ST
RESPONDENT
REUBEN
MALATJI
32
ND
RESPONDENT
BUTI
MOORE
33
RD
RESPONDENT
AMOS
KGABI
34
TH
RESPONDENT
DAVID
MANKGA
35
TH
RESPONDENT
FRANS
CHUENE
36
TH
RESPONDENT
WILLY
MASERA
37
TH
RESPONDENT
FREDDY
MPHALO
38
TH
RESPONDENT
PHINEAS
MAMOLOLA
39
TH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an application in terms of which the Applicant sought an
order to
1.1. declare the 6
th
to 39
th
Respondents to be in contempt of Court for
allegedly failing to comply with the order issued by this Court as
per Ndlokovane AJ
on 28 November 2016,; and
1.2.
direct that the 6
th
to 39
th
Respondents be committed to imprisonment for a period of time subject
to certain suspensive conditions.
[2]
The 6
th
to the 39
th
Respondents are members of the First to the Fifth Respondents (“the
Taxi Associations”). The Court order was granted
against the
five Taxi Associations and not their individual members.
[3]
In terms of the order granted by Acting Judge Ndlokovane dated 28
November 2016, it was ordered that:
3.1. The Respondents be
interdicted from interfering, restricting and / or obstructing the
members of the Applicant and their taxi
associations and / or their
affiliate members from utilising, accessing and / using the taxi rank
facilities situated at ERF 299
in the township of Polokwane, with
registration division LS TRANSVAAL, number 87 President Kruger
Street, Polokwane;
3.2. That the members of
the Applicant, their taxi associations and / or the affiliate members
be allowed to operate the minibus
taxis and have full access to the
taxi rank facilities at Erf 299 situated at number 87 Pres Paul
Kruger Street, Polokwane to load
and offload passengers as per their
respective operating licences without interference, intimidation’s
and / or obstructions
by the Respondents and / or its members;
3.3.
That the Respondents pay the Applicant’s, such costs to be on a
party to party scale.
[4]
The Respondents opposed this application and have raised a point
in
limine
and also challenged the application on the merits. The
point
in limine
raised is that of
lis alibi pendens
;
that there is a pending litigation between the same parties based on
the same cause of action in respect of the same subject matter.
Lis
Alibi Pendens
[5]
On 10 March 2017 the Applicant issued an application proceedings
against the First, Second, Third, Fourth and Fifth Respondents
(the
Taxi Associations) in this Court for the relief
inter
alia,
calling
upon the latter to show cause why they should not be found to be in
contempt of the Court order dated 28 November 2016.
The application,
which was opposed by the Respondents was enrolled to be heard on an
urgent basis on 23 March 2017. By agreement
between the parties the
matter was removed from the roll of 23 March 2017. Those proceedings
are still pending between the parties
and have not been re-enrolled
and / or disposed of.
[6]
In the present application the same Respondents associations together
with their respective individual members are again cited.
The
Applicant again, in the present proceedings, seeks the same relief as
against the associations and the individual members that
they be
found to be in contempt of the same Court order of 28 November 2016.
[7]
I agree with the Respondents’ submission that there is a
pending litigation between the same parties on the same cause
of
action in respect of the same subject matter.
[8]
It is trite law that when litigation has been instituted by one party
against another, based on the same cause of action in
relation to the
same subject matter then such parties may not institute further
proceedings against each other on the same subject
matter whilst the
initial proceedings have not been disposed of. In
Nestle (South
Africa) (Pty) Ltd v Mars Inc
2001 (4) SA 542
(SCA)
the Court held
at page 548 J – 549 that:
“
The
defence of lis alibi pendens shares features in common with the
defence of res judicata because they have a common underlying
principle, which is that there should be finality in litigation.
Once
a suit has been commenced before a tribunal that is competent to
adjudicate upon it, the suit must generally be brought to
its
conclusion before the tribunal and should not be replicated (lis
alibi pendens). By the same token the suit will not be permitted
to
revive once it has been brought to its conclusion (res judicata). The
same suit between the parties, should be brought once
and finally.”
[9]
This principle of
lis alibi pendens
finds application in the
circumstances of the present case as the current application is on
all fours with the proscription of the
principle. On this ground
alone the current application falls to be dismissed.
Merits
of the Application
[10]
For the sake of completeness and in order to finally determine the
main issues between the parties in this application, I shall
proceed
to deal with the merits of the application.
[11]
The following issues are common cause between the parties:
11.1. On the 28 November
2016 this Court issued an interdictory order against the First to the
Fifth Respondents in favour of the
Applicant; and
11.2. The First to the
Fifth Respondents are aware of the existence of the Court order.
The
issue in dispute is that the Respondents violated the said Court
order.
[12]
The pre-requisites for the Court to be satisfied that there has been
a contempt of Court in such proceedings are:
12.1. there is an
existing Court order;
12.2. the Respondent was
served with or notified of the Court order;
12.3. that the Respondent
has not complied with the Court order; and
12.4. that the
non-compliance was willful and
mala fide
.
See:
Fakie
NO v CC 11 Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA).
At
paragraph
[42]
of the
Fakie
case
Cameron JA held that once the applicant has proved the order, service
or notice, and non-compliance, the respondent bears an
evidential
burden in relation to the willfulness and
mala
fides
:
should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was willful and
mala
fide,
contempt
will have been established beyond reasonable doubt.
[13]
In
Readam SA (Pty) Ltd v BSB International Link CC and Others
2017
(5) SA 183
Sutherland J said the following:
“
[9]
The decision
in
Fakie NO v CC 11 Systems (Pty) Ltd
2006 SA 326
(SCA) ([2006] ZASCA
54) (Fakie)
is
the leading authority on contempt on this sense. Upon its authority,
a willful and mala fide defiance must be established beyond
a
reasonable doubt. No onus of proof rests on a person accused of
contempt, but a burden to adduce evidence from which an inference
of
absence of willfulness or mala fides can be deduced does rest on such
a person, once proof is adduced of the existence of an
order, service
on the person, and non-compliance. The objective of contempt
proceedings always embraces a public interest dimension.
Such orders
are both
coersive
(i.e
to compel compliance) and punitive.”
[14]
What lies at the heart of the dispute in this application is whether
the Respondents have complied with the Court order or
not. The
Applicant herein bears the onus of proving beyond reasonable doubt
that the Respondents violated an order of this Court.
[15]
The factual basis upon which the Applicant avers that the Respondents
have violated the Court order are contained in paragraphs
59, 60 and
61 of the Founding Affidavit. The following are the allegations:
“
59.
Our members proceeded to the taxi rank and attempted to conduct their
business activities and were obstructed, intimidated and
restricted
by members of the 1
st
to 5
th
Respondents at the taxi rank. They were also assaulted, harassed and
some were robbed of their belongings by members of the 1
st
to the 5
th
Respondents.
60.
During this process the 5
th
to 8
th
Respondents
who are members of the First Respondent were inciting violence
against our members and also encouraged their members
to violate the
Court order as granted by this Honourable Court.
61.
Our members were further prevented from accessing the taxi rank to
conduct their business activities. This led to them approaching
Polokwane Police Station to open criminal cases against members of
the First Respondent and as a result two cases were registered
being
Cas: 641/02/2017 and Cas: 658/02/2017.”
[16]
The allegations in paragraph 59 are denied by the Respondents. The
Applicant makes bald, wide and unsubstantiated allegations
of
obstruction, intimidation, restriction, assault and harassment by
unidentified members of the 1
st
to 5
th
Respondents. There are no concrete or tangible facts placed before me
to support these allegations. The Applicant should have placed
solid
evidence before me to prove, beyond reasonable doubt that certain
identified individuals who are linked to the 1
st
to 5
th
Respondents were involved. It dismally failed to do so.
[17]
In paragraph 60 of the founding affidavit the Applicant purports to
link the 5
th
to 8
th
Respondents to an act of
inciting violence and encouragement of other members to violate the
Court order. The Applicant states
these as a fact. However, the same
deponent in the initial founding affidavit of the aforesaid pending
case of 23 March 2017 stated
the following:
“
I
have been reliably informed that the 5
th
to 8
th
Respondents are inciting violence against our members and also
encouraged their members to violate the Court order which is granted
by this Honourable Court”
It
is now clear that this allegation constitutes hearsay evidence. The
Applicant cannot now claim to have positively and personally
identified the 5
th
to 8
th
Respondents as culprits when it is apparent that he was initially
informed by some unknown informants.
[18]
Regarding the contents of paragraph 61 of the founding affidavit, the
Applicant fails to state who in particular prevented
its members to
access the taxi rank and does not state against whom the two criminal
cases were opened. It could have been easy
for the Applicant to
furnish the names of the suspects from the police case dockets and /
or from the complainants’ statements
in the dockets.
[19]
In my view the Applicant has not discharged the onus of proving
beyond reasonable doubt that any of the Respondents have violated
the
Court order. What has been placed before me are some bald and
unsubstantiated allegations of non-compliance with the Court
order.
The Applicant has failed to make out a case for contempt of Court
against the Respondents.
[20]
The Application is accordingly dismissed with costs on party and
party scale.
________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on: 27 November 2017
Judgment
Delivered: 30 November 2017
For
Applicant: Adv. Knoetze
Instructed
by : J L Rahlagane Attorneys
c/o
P E Mashola Inc
Polokwane
For
3
rd
& 18
th
Respondents: Phokoane Phasha
Attorneys
Polokwane
For
the rest of the : Adv. Sibiya
Respondents
up to 39
th
Instructed
by : Makgoba Kgomo Makgaleng Attorneys
Polokwane