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[2016] ZAKZPHC 21
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Skin Renewal CC v Brigit Filmer Spa and Skin (Pty) Ltd and Others (13701/13) [2016] ZAKZPHC 21 (26 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 13701 /13
In
the matter between:
SKIN
RENEWAL
CC
APPLICANT
and
BRIGIT
FILMER SPA & SKIN (PTY)
LTD
FIRST RESPONDENT
BRIGIT
FILMER
SECOND RESPONDENT
HERCULES
ASHLEIGH
PRINSLOO
THIRD RESPONDENT
ORDER
A.
Rule 6(15) Application to strike out
1.
Orders are granted in terms of Annexure “A” hereto.
2.
Each party is directed to pay its own costs occasioned by the hearing
of such application on 4 and 5 September
2014.
B.
First Contempt Application
1.
The rule nisi granted on 21 February 2014 is discharged with costs.
C.
Second Contempt Application
1.
The rule nisi granted on 20 May 2014 is discharged with costs.
HENRIQUES
J:
INTRODUCTION
[1]
The applicant instituted two contempt applications seeking to hold
the first to third respondents (the respondents) in contempt
of
various court orders issued in this court.
[2]
Preference was allocated as a consequence of the applicant’s
legal representatives written request and one day was allocated
for
the hearing of the contempt applications.
[3]
Subsequent to the contempt applications being enrolled for hearing on
the opposed motion roll, the respondents on 17 July 2014,
served an
application in terms of Rule 6(15) seeking to strike out certain
portions in the various affidavits filed by the applicant
in the
contempt applications. The applicant filed a notice to oppose
the Rule 6(15) application on 29 August 2014.
[4]
The argument in respect of the application to strike out lasted
approximately two days, being 4 and 5 September 2014, and argument
in
the contempt applications commenced in the afternoon of 5 September
2014 after the long adjournment. Argument was not
finalised and
the matter was adjourned to 18 September 2014.
[5]
Consequently, the applications took three full court days to argue.
This is relevant to the aspect of costs, specifically
those
occasioned by the application to strike out as procedurally the
application to strike out had to be dealt with prior to the
contempt
applications proceeding. In addition, the applicant had received
sufficient warning of the inevitability of such application
and had
been invited to remove such offending matter from the affidavits.
FACTUAL
BACKGROUND
[6]
The parties are engaged in what can only be described as exhaustive
and acrimonious litigation. The proceedings commenced
on 13
December 2013, when the applicant instituted proceedings to prevent
its ejectment from premises it indicated it had a right
to occupy by
virtue of a lease agreement. The respondents have instituted a
counter application for the ejectment of the
applicant.
[7]
The premises, which are free standing are situated at 1 Old Main Road
Gillitts and in close proximity to the residence of the
second and
third respondents. The third respondent is married to the
second respondent who is the director of the First Respondent.
The
second and third respondents are trustees of the Prinsloo Family
Trust which owns the immovable property on which the premises
and
their residence is situated.
[8]
Initially only the first respondent was a party to the proceedings,
the remaining respondents subsequently being ‘joined’
as
a consequence of the orders issued.
[9]
The issue in dispute in the main application and the counter
application is the existence or otherwise of a lease agreement
concluded between the applicant and the first respondent.
RELEVANT
COURT ORDERS
[10]
The first court order was granted on 13 December 2013 (first court
order) pursuant to an urgent application instituted by the
applicant
against the first respondent. The return date for the
rule
nisi
was 11 February 2014, such order also incorporated the
relief sought in the counter application. On the return date,
an order
was granted referring the matter to trial and such court
order included orders intended to regulate the business relationship
between
the parties pending the finalisation of the trial matter and
included
inter alia
orders relating to additional parking bays
being allocated to the applicant (second court order).
[11]
On 12 February 2014 as a consequence of what it alleged to be the
first respondent’s breach of the first and second court
orders,
a third court order was issued in terms of which the first respondent
and its agents were interdicted and restrained from
unlawfully
attempting to evict the applicant from the premises and to refrain
from either directly or indirectly interfering with
the business
activities of the applicant (third court order).
[12]
The
rule nisi
granted on 12 February was returnable on 5 March
2014. As such order was granted in the absence of the
respondents, they
sought to reconsider this order on 27 February
2014. Such reconsideration application, which was opposed, was
argued on 27
February 2014 and was dismissed with costs.
[13]
As a result of various contraventions of what the applicant alleges
to be the respondents breach of the first, second and third
court
orders, two contempt applications were instituted. The applicant was
granted orders in both contempt applications and now
seeks final
orders for contempt
[1]
.
[14]
Prior to dealing with the contempt applications, procedurally this
court has to finalise the application to strike out.
APPLICATION
TO STRIKE OUT
[15]
In their additional practice note dated 28 August 2014, the
respondents make reference to their practice note dated 24 June
2014,
in which they had invited the applicant to remove argumentative and
irrelevant aspects from its affidavits filed in the two
contempt
applications. In July 2014, when no response was forthcoming,
the respondents served a formal application in terms
of Rule 6(15)
for striking out. The notice informed the applicants of the
respondents’ intention to apply to court
at the hearing of the
opposed application on 4 September 2014 for orders in the following
terms:
“
1.
that the portions of the founding affidavit of Jenna Broom deposed to
on 18 February 2014, as detailed
on annexure “A” hereto
be and are hereby struck out;
2.
that the portions of the replying affidavit of Jenna Broom deposed to
on 10 March 2014 and as detailed on annexure
“B” hereto
be and are hereby struck out;
3.
that the portions of the replying affidavit of Tamlyn Jane Gertzen
deposed to on 12 June 2014 and
detailed on annexure “C”
hereto be and are hereby struck out; and
4.
costs of this application.”
[16]
The grounds of objection are set out in the notice and the relevant
portion reads as follows:
“
The
portions of the affidavits referred to above are argumentative, and
or hearsay, and or attack the credibility of the Second
and Third
Respondents and are therefore irrelevant to the merits of the matter
and further are prejudicial to the Respondents
.”
[17]
At the hearing of the matter, the parties’ legal
representatives made submissions relating to the various paragraphs
in the affidavits which they objected to and could not reach
agreement on and those on which agreement was reached.
[18]
It appeared that the parties had not performed such an exercise prior
to the hearing, and consequently much of the court’s
time was
taken up by this. This is despite an opportunity being afforded to
them to do so at the hearing. Time could have been
saved had the
court only been asked to deal with those matters upon which there was
no agreement.
[19]
Rule 6(15) reads:
“
The
court may on application order to be struck out of any affidavit any
matter which is scandalous, vexatious or irrelevant, with
an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless it
is satisfied that the applicant will be prejudiced in his case if it
be not granted
.”
[20]
Rule 23(2) also contains a similar pre-emptory provision. The
test being that the court must be satisfied
of prejudice to an
applicant if orders are not granted.
[21]
The courts have ascribed the following meaning to the expression
‘scandalous’, namely allegations that may or may
not be
relevant but that are so worded as to be abusive or defamatory.
Vexatious matters are allegations that may or may
not be relevant but
are so worded as to convey an intention to harass or annoy.
Irrelevant matters are described as allegations
that do not apply to
the matter at hand and do not contribute in one way or another to a
decision in the matter
[2]
.
[22]
This list is not intended to be exhaustive as to the grounds upon
which a court will strike out certain allegations as a court
still
has inherent jurisdiction where the rules of court do not make
provision for it
[3]
.
Courts have struck out matters that are argumentative, allegations
that attack the credibility of a party and evidence referred
to in
settlement negotiations as these are usually considered irrelevant
matters.
[23]
Jacob and Goldrein
[4]
states as
follows:
“
A
pleading is vexatious when it lacks bona fides and is hopeless or
oppressive and tends to cause the opposite party unnecessary
anxiety,
trouble and expense.”
[24]
In so far as irrelevant averments are concerned, there is not much
difference between argumentative and irrelevant matters.
Matters that can be struck out on the grounds that they are
“argumentative” would be equally open to a challenge that
it is ‘irrelevant’. ‘Irrelevant’ in the
context of meaning irrelevant to the issues raised on the
pleadings.
In
Rail
Commuters Action Group v Transnet Limited
[5]
Thring
elucidated the test for relevancy as follows:
“
All
that concerns the Court is whether or not the passage or passages
sought to be struck out is or are relevant in order to raise
an issue
on the pleadings.”
[25]
In bringing the application to strike out the notice must indicate
precisely which passages are being objected to and must
briefly state
the grounds for such objection. An applicant must direct the court
and its opponent to the specific allegations objected
to and must not
expect the court to wade through a mass of material in order to
discover what matter is irrelevant and the grounds
upon which it
sought to have it struck out
[6]
.
[26]
At the hearing of the striking out application, among the submissions
made was that such matters were irrelevant, argumentative,
defamatory
and/or scandalous, opinion evidence and/or not relevant to the
proceedings. An overall submission which Mr Shepstone
made on
behalf of the respondents was that it was inappropriate for an
employee to depose to affidavits which contained matters
which were
argumentative, scandalous and which in some instances was opinion
evidence bordering on being defamatory in nature.
[27]
He made submissions in respect of all matters dealt with in the
application to strike out specifically in annexures A, B and
C
thereto. Similarly, Mr Pietersen placed on record those matters which
the applicant conceded fell to be struck out and addressed
the court
in respect of those on which no agreement could be reached between
him and Mr Shepstone.
[28]
In essence the respondents sought to strike matters on the basis that
it was argumentative, scandalous, vexatious, irrelevant,
defamatory,
intended to harass and annoy and was an opinion of the deponent. Mr
Pietersen in opposition submitted that such matters
did not fall
within the categories argued by the respondents and had to be seen in
the context of the applicant making out a case
for contempt. To the
extent, that I agreed with these submissions and Mr Pietersen was not
able to convince me otherwise, I granted
such orders as evident from
Annexure A to the judgment.
[29]
Given the application to strike out so as to not make the judgment
unduly prolix I have not deemed it necessary to set out
all the
individual submissions of the parties in respect of annexures A, B
and C as these are a matter of record. I have only done
so in certain
circumstances where I deem it necessary. A party aggrieved by any of
the individual orders made in the strike out
application may request
detailed reasons for an individual order pursuant to a request in
terms of the rules of court.
[30]
In respect of paragraphs 4 to 42 of the replying affidavit of Jenna
Broom in the first contempt application and paragraphs
4 to 11 of the
replying affidavit of Tamlyn Gertzen in the second contempt
application I agree that these submissions were argumentative
but
also unnecessary and repetitive. It is for the court to determine the
respondents’
mala fides.
[31]
I agree with Mr Shepstone’s submission that it was
inappropriate for Ms Jenna Broom to depose to the affidavits on
behalf
of the applicant in the manner that she did. I accept
that she is in the employ of the applicant and had personal knowledge
of the contraventions of the court orders and to some extent was best
placed to contextualise matters, in my view the extent of
the
repetition in the affidavits was unnecessary and evinces an intent to
harass and annoy. More so the “legal conclusions”
which
she drew ought not to be contained in affidavits and are matters best
left for argument by legal representatives.
[32]
One final matter in respect of the Rule 6(15) application is the
aspect of costs. It is trite that the court exercises a discretion
when it comes to an award of costs and such discretion must be
exercised judicially considering the particular facts unique to
such
matter. The general rule is that a successful party is entitled to
its costs but there may be circumstances warranting a departure
from
such rule.
[33]
Inasmuch as the respondents were substantially successful in their
application I agree with Mr Pietersen’s submission
that given
the circumstances of the matter, the most appropriate order would be
to direct each party to pay its own costs.
[34]
I now turn to consider the contempt applications in the context of
the application to strike out which does not in my view
significantly
impact on the contempt applications considering the orders granted in
annexure A.
CONTEMPT
PROCEEDINGS
[35]
Despite the fact that wilful disobedience of a court order in civil
proceedings constitutes a criminal offence, a practice
exists in the
high court in terms of which proceedings are instituted by way of an
application on notice of motion for committal
of a respondent for
contempt of court. In Van Loggerenberg, 2
nd
Edition, volume 1, ‘Erasmus Superior Court Practice’ the
authors summarise the position as follows
[7]
:
“
(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 requirements.
(b) The respondent in
such proceedings is not an “accused person”, but is
entitled 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, noncompliance, and wilfulness
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.
Contempt
of court in this context is defined as “the deliberate,
intentional (i.e. wilful) disobedience of an order granted
by a court
of competent jurisdiction
”
.
[36]
The
locus
classicus
in respect of contempt of court is the decision in
Fakie
NO v CC II Systems (Pty) Ltd
[8]
.
It is useful to refer to certain passages from such case as these are
relevant to this matter. In
Fakie
supra
the court, per Cameron JA indicated the following:
[36.1]
“……the essence of contempt of court … lies
in violating the dignity, repute or authority
of the court “
[9]
.
The offence has been approved by the constitutional court as the rule
of law requires the dignity and authority of the courts
to be
maintained
[10]
;
[36.2]
“The test for when 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, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt. In such a case,
good faith avoids the infraction. Even a refusal
to comply that
is objectively unreasonable may be
bona
fide
(though unreasonableness could evidence lack of good faith)
[11]
”;
[36.3]
“These requirements – that the refusal to obey should be
both wilful and
mala
fide
,
and that unreasonable non-compliance, provided it is
bona
fide
,
does not constitute contempt – accord with the broader
definition of the crime, of which non-compliance with civil orders
is
a manifestation. They show that the offence is committed not by
mere disregard of a court order, but by the deliberate
and
intentional violation of the court’s dignity, repute or
authority that this evinces. Honest belief that non-compliance
is justified or proper is incompatible with that intent.”
[12]
;
[36.4]
The onus is that of the criminal standard of proof being proof beyond
reasonable doubt
[13]
;
[36.5]
Once an applicant shows an order in existence and that it came to the
notice or attention of a respondent, that
the respondent had
disobeyed or neglected to comply with the order, wilfulness and
mala
fides
will be inferred and the applicant will then be entitled to a
committal order. An evidentiary burden then rests upon a
respondent
in relation to the aspect of wilfulness and
mala
fides.
A respondent must advance evidence that establishes a reasonable
doubt as to whether non-compliance with such order was wilful
and
mala
fides
.
A respondent does not bear a legal burden to disprove wilfulness and
mala
fides
.
If the respondent fails in discharging such evidentiary burden,
contempt of the court order will be established beyond reasonable
doubt
[14]
.
[37]
A respondent can escape liability if he/she can show he was
bona
fide
in his disobedience of such court order, that he genuinely,
though mistakenly, believed he was entitled to commit the act or
omission
alleged to be in contempt of such court order. In
deciding this, an element of reasonableness enters the arena
specifically
in relation to determining the absence of
bona
fides
. There are degrees of reasonableness and the mere
fact that such conduct was unreasonable is not tantamount to an
absence
of
bona fides
.
[38]
Fakie
’’s case also deals with disputes of fact in
contempt proceedings. A party is entitled where a dispute of
fact
exists to ask for the matter to be referred for oral evidence.
Similarly, a party is entitled to argue on the affidavit that
the
requisites for contempt of court have been fulfilled.
[39]
Paragraphs 55 and 56
[15]
Cameron JA deals with disputes of fact in contempt proceedings as
follows:
“
[55]
That conflicting affidavits are not a suitable means for determining
disputes of fact have been doctrine in this court for
more than
eighty years. Yet, motion proceedings are quicker and cheaper
than trial proceedings and, in the interests of justice
courts have
been at pains not to permit unvirtuous respondents to shelter behind
patently implausible affidavit versions or bald
denials. More
than 60 years ago this Court determined that a Judge should not allow
a respondent to raise ‘fictitious’
disputes of fact to
delay the hearing of the matter or to deny the applicant its order.
There had to be ‘a bona fides’
dispute of fact on a
material matter’. This means that an uncreditworthy
denial, or a palpably implausible version,
can be rejected out of
hand, without recourse to oral evidence. In Plascon-Evans
Paints Ltd v van Riebeeck Paints (Pty) Ltd,
this Court extended the
ambit of uncreditworthy denials. They now encompassed not
merely those that failed to raise a real,
genuine or bona fides
dispute of fact but also allegations or denials that are so
far-fetched or clearly untenable that the Court
is justified in
rejecting them merely on the papers.
[56]
Practice in this regard has become considerably more robust, and
likely so. If it were otherwise, most of
the busy motion courts
in the country might cease functioning. But the limits remain,
and however robust a court may be inclined
to be, a respondent’s
version can be rejected in motion proceedings only if it is
‘fictitious’ or so far-fetched
and clearly untenable that
it can confidently be said, on the papers alone, that it is
demonstrably and clearly unworthy of credence
.”
[40]
It is necessary to set out the facts on which the applicant relies
for the contempt applications as well as to refer to the
relevant
court orders.
ISSUE
[41]
The question to be decided is whether or not having regard to the
instances of contravention which the applicant alleges the
respondents’ were in breach of such orders, and whether such
non-compliance can be said to be wilful and
mala fide
beyond
reasonable doubt.
[42]
At the outset, having regard to the affidavits filed I must indicate
that the respondents acknowledged service of the order
and the fact
that the orders came to their attention. They deny non-compliance,
submit that in instances of non-compliance the
orders were not
applicable to the second and third respondents, alternatively that no
orders were in place for which they could
be said to be in breach of
and such non- compliance was not wilful and
mala fide
beyond
reasonable doubt.
[43]
During 2013, the applicant and the first respondent concluded an oral
lease agreement in respect of business premises situated
at 1 Old
Main Road, Gillitts, KwaZulu Natal. As a consequence of a
dispute between the parties regarding such lease agreement,
the
applicant and first respondent obtained interdicts against each other
on 13 December 2013.
[44]
It seems that the purpose of such interdicts was to govern the future
business relationship between the parties and would deter
them from
interfering with the others business activities and desist from
conduct having the effect of preventing the other from
conducting
such business activities, until such time as the main dispute
regarding the lease and the applicant’s continued
occupation of
the premises was finalised. To this extent, interim orders were also
made against the applicant at paragraphs 3.4,
3.5.1 and 3.5.3
thereof. Such orders remained in place until the 11 February
2014.
[45]
As at 11 February 2014 the third respondent was not a party to the
proceedings. The dispute relating to the existence
of a lease
agreement and a renewal thereof was referred for trial on 11 February
2014 and the order was amended. In terms of paragraph
4 thereof, it
states that the
rule
nisi
issued on 13 December 2013 was superseded by the order. The
second order incorporated two further interim orders relating
to the
allocation of four additional parking bays and the order in addition
made provision for the applicant to cease using the
respondents’
client data base and communicating with the respondents’
clients on the respondents’ data base.
[46]
In addition it read as follows:
“
3.1.
The respondent, its management and staff are hereby interdicted and
restrained from:
3.1.1.
approaching the Applicant’s staff attempting to offer them
employment;
3.1.2
making any derogatory and/or damaging remarks, comments or statements
regarding the Applicant and the services
and/ or products offered by
it;
3.1.3.
unlawfully evicting the Applicant from the Leased Premises during
December 2013 alternatively January 2014 or
until the valid
termination of the Lease Agreement; and
3.1.4.
offering any medical based treatments or products which cannot
lawfully be administered by a somnatologist. ……
3.4.
The Respondent is required to instruct the Respondent’s
security provider not to enter
the Applicant’s premises to
threaten and/or intimidate its staff and customers, making derogatory
and defamatory statements
about the Applicant, as well as to take
photographs of vehicles belonging to the Applicant’s customers
and/or staff.
”
[47]
On 12 February 2014, the applicant instituted an urgent application
as a consequence of what it alleged to be the first respondent’s
breach of the first and second court orders. In consequence
thereof a third court order was issued in terms of which the
first
respondent and its agents were interdicted and restrained from
unlawfully attempting to evict the applicant from the premises
and to
refrain from either directly or indirectly interfering with the
business activities of the applicant.
[48]
The order was specifically amended to include the word ‘agents’
at paragraph 3.1. and adding paragraph 3.5 to the
second order in
terms of which the respondent was to cease directly or indirectly
interfering with the business’s activities
of the applicant
and/or allowing, procuring or permitting any third parties to do so.
This had the effect of ‘extending’
the orders to
specifically apply to the second and third respondents and or their
agents and third parties.
[49]
The rule nisi granted on 12 February 2014 (the third court order) was
returnable on 5 March 2014. As the third court
order was
granted in the absence of the respondents, the respondents sought to
reconsider the third court order on 27 February
2014. Such
reconsideration application, which was opposed, was argued on 27
February 2014 and was subsequently dismissed
with costs.
[50]
After the interim order of 12 February 2014 was made final, the
applicant obtained an interim contempt order on 21 February
2014 as a
consequence of the respondents’ alleged contravention of such
order.
[51]
The third respondent attended at the applicant’s premises on 19
May 2014 in the presence of officials of the eThekwini
Municipality
in order that a prohibition order be served which required the
applicant to immediately cease its business activities
at the
premises as same was illegal due to the zoning of the property.
Within minutes of the officials and the third respondent
leaving the
premises, the second and third respondents are alleged to have
disconnected the applicant’s water and electricity
supply.
[52]
In addition the respondents are alleged to have denied the
applicant’s patients access to its business premises
for the
remainder of the day. Alternative rooms for the next few days was
sourced but when the applicant’s employees attempted
to remove
certain medical equipment from the premises to treat patients, the
third respondent prevented them from doing so. The
third
respondent informed them he had also arranged for a third person to
clear out the premises during the afternoon of 19 May
2014. The
equipment in the premises was estimated to be worth in excess of R2
million. This culminated in the second contempt application
in which
the applicant obtained an order on 20 May 2014.
CONTRAVENTION
OF THE COURT ORDERS
[53]
The applicant sets out in detail in the affidavits filed specific
instances upon which it relies in the two contempt
applications as
well as its heads of argument.. These can be summarised as
follows.
COURT
ORDER OF 13 DECEMBER 2013 TO 11 FEBRUARY 2014
[54]
The applicant relies on the following:
[54.1]
In January 2014, the Local Health Inspector attended unannounced at
the leased premises to conduct an inspection.
[54.2]
On 22 February 2014, the National Health Inspector conducted an
inspection of the applicant’s premises and confiscated
products. This the applicant alleges was after attending at the
home of the second respondent and after being requested by
the second
respondent to conduct such inspection.
[54.3]
On 24 January 2014, despite the second respondent conducting an
inspection of the premises in December 2013, she indicated
she wished
to once again do so.
[54.4]
On 27 January 2014, the applicant’s delivery trucks were
refused access to the premises as they were alleged
to be blocking
the entrance to the property. On the same day the third respondent
advised Ms Gertzen that he intended taking away
four parking bays
allocated to the applicant hereby limiting the applicant to eight
parking bays. The applicant indicates
it had unlimited use of
nine parking bays on the right hand side of the entrance to the
leased premises and four additional staff
parking bays.
[54.5]
From 28 January 2014, the first, second and third respondents and/or
their employees and agents are alleged to have
blocked off parking
bays preventing the applicant’s use thereof.
Correspondence was exchanged, and on 30 January 2014,
the applicant
was informed in writing by the third respondent it would enforce the
limited parking and the applicant had five minutes
to respond.
A tow truck acting on the instructions of the third respondent
attempted to tow the vehicles and that of the
therapist in the
parking bays and that of two patients.
[54.6]
On 5 February 2014, a patient of the applicant was denied access to
the business premises.
SECOND
COURT ORDER OF 11 FEBRUARY 2014
[55]
The applicant alleges the following contraventions of the second
court order:
[55.1]
The terms of paragraph 3.2 of the second court order were not
complied with as the additional parking bays were not
made available
by the first respondent.
[55.2]
A patient of the applicant was turned away from the premises by a
security guard employed by the first respondent as
there was “no
parking available”.
[55.3]
A 1.5m sign had been erected in clear view of the applicant’s
patients vehicle which read as follows: “
Skin Renewal given
notice on 30/11/2013 to vacate premises”.
Correspondence
was exchanged in which the first respondent indicated the security
guard had been advised to allow patients of the
applicant to park in
any available bays and would attend to the formal allocation of the
bays at a later stage. It recorded
that neither the first or
second respondent gave instructions relating to the erection of the
sign nor did anyone acting on their
behalf do so.
THIRD
COURT ORDER OF 12 FEBRUARY 2014
[56]
The applicant alleges that:
[56.1] The 1.5m
sign remained in place.
[56.2] Only two
parking bays were made available to the applicant’s patients.
[56.3]
The applicant’s patients were required to sign in on accessing
the premises.
[56.4]
the order was extended to include third parties and agents of the
respondent.
[57]
In addition, the respondents are alleged to have on no less than two
occasions disconnected the electricity and water
supply to the
property.
[58]
The respondents in their respective heads of argument and answering
affidavits deal with the incidences of alleged non-compliance
with
the various court orders as follows. In addition they allege that
there are disputes of fact in the papers.
[59]
The allegation that the respondents refused the applicant’s
patients access to the premises is denied and constitutes
a dispute
of fact. Likewise is the allegation that the respondents
attempted to remove the applicants’ medical equipment.
[60]
The applicant submits that the respondents refused access to the
applicant’s delivery trucks on 27 January 2014.
The
respondents deny same and submit that such conduct complained of has
been dealt with in the answering affidavits of the respondents
and in
addition such conduct can never constitute a breach of the order of
court that was in place at the time being the court
order of 13
December 2013. The respondents submit that large vehicles were
required to park outside the property as same constituted
a safety
risk to their daughter and smaller vehicles were allowed access save
that they had to turn at the parking area and not
at the circle.
[61]
The applicant alleges that the respondents breached the court order
of 13 December 2013 by removing some of the applicants
allocated
parking bays on 27 January 2014. The respondents submit that
this is not a breach of an existing court order in
that the issue of
parking was only dealt with in the orders of court on 11 February
2014. In addition there was no formal arrangement
with respect to the
parking bays. The respondents also indicate that the 4 parking bays
were allocated as per the order of court.
[62]
The applicant alleges that the respondents breached the orders of
court by employing the services of a tow truck to remove
their
vehicles parked in the respondents parking bays including belonging
to the applicant’s employees. In addition
it is alleged
that certain vehicles of patients of the applicants were also
attempted to be moved by the respondents. Same
is alleged to
have occurred on the 30 January 2014 at time when the first court
order was in place.
[63]
The respondents deny this and allege that apart from there being
disputes of facts on the papers this does not constitute a
breach of
the order of court The order of 13 December 2013 does not make
reference to the parking bays and same was only
specifically
mentioned by the court order of 11 February 2014. The
respondents, specifically the third respondent acknowledges
that he
called the tow truck driver to remove Jenna Broom’s vehicle
only as it was parked in the second respondent’s
allocated bay
and despite a request for her to remove same she did not do so and
only reacted when the tow truck arrived.
In his defence he
submits that he acted in anger and out of sheer frustration and same
was in his capacity as trustee.
[64]
In addition he has denied interference with other vehicles and has
also dealt with the issue in relation to the capacity in
which he
acted. I cannot find that his admission constitutes
mala
fide
conduct.
[65]
The issue relating to the erection of a sign on the premises is dealt
with by the respondents in their answering affidavits,
explanations
have been provided. The second respondent indicates she had no
knowledge thereof and that same was erected by the
third respondent
in anticipation of a contravention notice being issued by the
Municipality which was eventually issued.
[66]
The applicant further alleges that the respondents are in contempt
because the applicant’s patients were required
to sign in when
visiting the premises. The respondents submit that such conduct
cannot constitute a breach of any orders
of court as same has not
been included moreover same constitutes a security measure and
further did not only apply to the applicant’s
patients.
[67]
Mr Shepstone submitted on behalf of the respondents that where there
are disputes of fact raised on the papers, the
Plascon Evans
rule applies as the disputes are genuine and not far-fetched. The
version of the respondents must be accepted as no request for
the
matter to be referred for the hearing of oral evidence has been
made. In addition in instances where the respondents
have
admitted the conduct complained of same can never constitute contempt
as the respondents have provided explanations to demonstrate
not only
that such conduct did not amount to a contravention of the court
orders, was not wilful and or
mala fides
and/or raised
reasonable doubt as to whether they acted wilfully and
mala fides
.
[68]
Regarding the allegations that the water and electricity supply to
the premises were disconnected on more than one occasion,
the second
respondent deals with this in her answering affidavit filed on her
behalf and that of the first respondent in the second
contempt
application as does the third respondent. She denies any
knowledge of the events leading up the second contempt
order and
denies that either she or the third respondent disconnected the
supply of utilities or prevented the patients accessing
the premises.
The third respondent is alleged to have acted of his own accord in
respect of the notice annexed to the gate and
the security guards.
[69]
The third respondent indicates that he was required by law in terms
of the prohibition order to erect notices and to also comply
with
such order failing which he and the second respondent as trustees
would be held liable. He submits that he was thus acting
in terms of
such prohibition order and not wilfully and mala fide disobeying an
order of court.
[70]
Mr Shepstone who appeared for the respondents submitted that having
regard to the answers given by the second and third respondents
in
their affidavit same constitutes a genuine dispute of fact and in
light of the fact that the applicant has not sought orders
to refer
the contempt applications to oral evidence, this issue must be
decided in terms of the
Plascon
Evans
rule. This view finds support as indicated earlier on in this
judgment in
Fakie’s
case
[16]
.
[71]
If one considers the affidavits filed the prohibition order was in
place on 20 May 2014 when the second contempt application
was
instituted and an order obtained. Two prohibition notices appear to
have been served. Whilst it appears that the prohibition
notice was
withdrawn as against the applicant, the replying affidavit suggests
it was only on 28 May 2014 that the municipality
confirmed that the
prohibition notice was also withdrawn as against the respondents as
trustees. Consequently, the respondents
cannot be said to be in
wilful and
mala fide
breach at the time of the granting of the
order on 20 May 2014 as some reasonable doubt exists on their
version. Alternatively,
even if is argued that the third respondent’s
conduct may be considered objectively unreasonable, I do not believe
it to
be
mala fide
and wilful.
[72]
In addition there is a dispute of fact on the papers specifically in
relation to the disconnection of the water and electricity
supply .
As the applicant has not requested the referral of the matter for
oral evidence, in terms of
Plascon Evans
and
Fakie
I
cannot find that the version of the respondents so far-fetched so as
to be untenable falling to be rejected.
[73]
I agree with the submission of the respondents that disputes of fact
are evident on the papers in most if not all instances
of the alleged
contraventions. In the absence of a request for a referral to oral
evidence, the version of the respondents is not
so far-fetched as to
be rejected.
[74]
Consequently, the applicant has not been successful in both the
contempt proceedings and the
rule nisi’s
issued in both
matters fall to be discharged with costs.
[75]
In the premises I grant the following orders:-
A.
Rule 6(15) Application to strike out
1.
Orders are granted in terms of Annexure “A” hereto.
2.
Each party is directed to pay its own costs occasioned by the hearing
of such application on 4 and 5 September
2014.
B.
First Contempt Application
1. The
rule nisi granted on 21 February 2014 is discharged with costs.
C.
Second Contempt Application
1.
The rule nisi granted on 20 May 2014 is discharged with costs.
Date
of Hearing:
4, 5 and 18 September 2014
Date
of Judgment:
26 January 2016
Counsel
for Applicant:
WJ Pietersen
Instructed
by:
Schindlers Attorneys
c/o
Tatham Wilkes
200 Hoosen Haffagee
Street, Pietermaritzburg
Ref:
NR/Tatham/Michelle/06G0387/13
Telephone:
033 3453501
email:
nigel@thathamwilkes.co.za
Counsel
for Respondents:
SM Shepstone
Instructed
by:
JH Nicholson Stiller & Geshen
c/o
Stowel & Co.
295
Pietermaritz Street
Pietermaritzburg
Ref:
GJ Campbell/JHN/0043/LN
Telephone:
[1]
Court Order of 21
February 2014, Seegobin J: First Contempt Application, page 130;
Second Contempt Application: Court Order of
20 May 2014, Chili J,
page 24.
[2]
Vaatz v Law
Society of Namibia 1991(3) SA 563 (Nm);
[1991] 2 All SA 30
(NM) at
page 48.
[3]
Titty’s Bar
and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974(4) SA 362
(T).
[4]
Pleadings:
Principles and Practice at page 223.
[5]
2006(6) SA 68 (C)
at 83-84
[6]
The Free Press of
Namibia (Pty) Ltd v Cabinet for the Interim Government of South West
Africa 1997(1) A 614 (SWA) at 621 G-J.
[7]
A2-169.
[8]
2006(4) SA 326 SCA
at 344G-345A.
[9]
Fakie
supra
paragraph 6 page 332.
[10]
S v Manabolo (ETV
& Others intervening) 2001(3) SA 409 (CC) paragraph 14; Coetzee
v Government of the Republic of South Africa;
Matiso v Commanding
Officer, Port Elizabeth Prison 1995(4) SA 631 (CC).
[11]
Fakie
supra
paragraph 9 page 333.
[12]
Fakie
supra
paragraph
10 page 333.
[13]
Fakie
supra
paragraph 19 at 337G; at 342B and 344D.
[14]
Fakie
supra
at 344J-345A; paragraph 41 page 344.
[15]
Pages 347 and 348
of the judgment
[16]
Fakie’s
decision in relation to oral disputes of fact was confirmed in the
Supreme Court of Appeal decision in National
Scrap Metal (Cape Town)
v Murray & Roberts 2012(5) SA 300 at paragraphs 21 and 22.