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[2016] ZAGPPHC 391
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Sable Hills Home Owners' Association v Venter and Another (38024/2010) [2016] ZAGPPHC 391 (9 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
38024/2010
Date:
9/6/2016
Not
reportable
Not
of interest to other judges
Revised
In the matter between:
SABLE HILLS HOME
OWNERS’ ASSOCIATION (AN ASSOCIATION
INCORPORATED UNDER
SECTION
21) APPLICANT
And
ANDRIES JACOBUS
VENTER FIRST
RESPONDENT
SABLE HILLS WATERFRONT
ESTATE CC SECOND
RESPONDENT
JUDGMENT
PRETORIUS J,
(1)
This is an application for
the imprisonment of the first respondent due to the second
respondent’s continued contempt of the
court order, which was
issued under this case number on 20 March 2014 by Thlapi J. The
first respondent is the managing member
of the second respondent.
The court order was issued making a settlement agreement an order of
court.
(2)
The part of the order the
applicant relies on in the present application is:
“
8. An order
that Defendant is to secure the release of the properties identified
in clause 1.1 of the said agreement from the operation
of any of the
mortgage bonds within 8 (eight) months of date hereof.”
(3)
The agreement mentioned in
the order lists the relevant erven the second respondent had to
release from the operation of any mortgage
bond as follows:
“
From date of
signature hereof the Developer grants the Home Owners Association
(for the benefit of its members) a usufruct for an
indefinite period
over Erven ..3, ..5, ..6, ..1, ..2, .93 and .95. (The properties)”
(4)
It is common cause and
conceded by the respondents that the order came to the knowledge of
the first and second respondents and
that the second respondent has
failed to comply with the terms of the order in respect of erven ..1
and .93. The first respondent
was not a party to the previous
application, but as managing director is responsible for the actions
of the second respondent.
(5)
The first respondent
alleges that he had consulted with attorney Boshoff concerning the
court order and the obligations that the
second respondent has in
terms thereof. The first respondent’s argument is that he
was not involved in the arbitration
proceedings in his personal
capacity and therefor the court order does not bind him.
(6)
The first respondent
explained the reasons for the second respondent’s inability to
secure the release of erven ..2 and .93,
as the second respondent,
according to the respondents, was unable to procure alternative
security to satisfy the bond holder and
due to financial constraints
the properties could not yet have been released.
(7)
The argument by the
applicant is that the second respondent agreed to the 8 months period
in the award, which was made an order
of court, and that 18 months
later these two properties are still not released, hence the present
application.
(8)
The applicant’s
attorneys wrote a letter to the second respondent’s attorneys
on 22 May 2015 and a further letter on
29 May 2015, and again on 4
June 2015, alerting the respondents that the second respondent has
not complied with the terms of the
reward and thus the court order.
The second respondent failed to reply to any of those letters.
(9)
The respondents dispute
that nothing was done after the letters were received, as there was,
according to the respondents, extensive
interaction by Mr Boshoff,
the attorney on behalf of the respondents and the applicant’s
attorneys to try and settle the
matter. The respondents aver
that Dr Fourie the deponent to the founding affidavit, was present
during a number of these
discussions and negotiations, which he
failed to mention in his founding affidavit. This fact is
admitted by the applicant,
although it is contended that the first
respondent did not disclose on which date these meetings and
negotiations with Mr Boshoff
had taken place, without supplying a
date and indicating the relevance of when these meetings and
negotiations took place.
(10)
The further problem,
according to the respondents, to release these two erven is that
there is a
caveat
registered in respect of the essential services obligations at the
request of the City of Tshwane Municipality which specifically
sets
out in a letter to the Registrar of Deeds on 6 May 2015:
“
We also request
that a caveat must be placed on the transfer of any of the erven in
the township to third parties as well as the
issuing of Certificates
of Registrar of Title to the developer.
This caveat may only
be lifted once a CoT has confirmed in writing that the developer has
complied with paragraph 1 of the Court
Order as attached as Annexure
B.”
(11)
The main reason for not
complying with the award which had been made an order of court,
according to the respondents, was that the
second respondent could
not raise the finance to uplift the bond on erven ..2 and .93.
THE LEGAL POSITION:
(12)
In
Fakie
NO v CCII Systems (Pty) Ltd
[1]
the Supreme Court of Appeal confirmed that it is a crime to
unlawfully and intentionally disobey a court order. The
non-complier
must “
deliberately
and mala fide”
disobey the court order. The test is whether the non-complier
had acted unreasonably in the circumstances. The onus
in a
contempt of court application is on the applicant to prove the
elements of contempt beyond a reasonable doubt.
(13)
It
was also established in
Fakie’s
case
[2]
that the respondents in the present case only have to prove a
reasonable doubt on a balance of probabilities to avoid conviction.
(14)
The reason for granting
such orders was set out by Cameron JA at paragraph 8:
“…
And
while the litigant seeking enforcement has a manifest private
interest in securing compliance, the court grants enforcement
also
because of the broader public interest in obedience to its orders,
since disregard sullies the authority of the courts and
detracts from
the rule of law.”
The applicant has to
prove that the respondents were both wilful and
mala fide
in
their non-compliance with the court order. The applicant has to
show deliberate and intentional violation of the court
order.
(15)
It
was once more reiterated in paragraph 63 of
Fakie’s
case
[3]
in respect to dispute of facts on the papers:
“…
The
accepted approach requires that, subject to ‘robust’
elimination of denials and ‘fictitious’ disputes,
the
Court must decide the matter on the facts stated by the respondent,
together with those the applicant avers and the respondent
does not
deny…”
I
will deal with this application according to these principles.
(16)
In
Meadow
Glen Home Owners Association and Others v Tshwane City Metropolitan
Municipality and Another
[4]
the court held:
“
That
obliged it to make serious good-faith endeavours to comply with it...
If
it experienced difficulty in doing so then it should have returned to
court seeking a relaxation of its terms
.
If there were a dispute between them and the appellants regarding the
scope of the order and what needed to be done to comply
with it, it
was not appropriate for the municipality to wait until the appellants
came to court complaining of non-compliance in
contempt proceedings.
It should
have taken the initiative and sought clarification from the court.
Its failure over a protracted period to take these
steps is to be
deprecated.
”
(Court emphasis)
These
are the actions expected from respondents in matters such as these.
(17)
The
principle set out in the
Fakie
case
[5]
was once more confirmed that once the applicant had proved the order,
service and non-compliance, as was done in the present matter,
the
respondent bears the evidential burden in relation to wilfulness and
mala
fides
.
It is common cause that the applicant had proved that both
respondents were aware of the order and its contents and that
the
respondent did not comply with the order as set out above.
(18)
This court has to consider
whether the first and second respondents were wilful and
mala
fide
when not
complying with the court order. The applicant argues that the
respondents’ argument and refusal to comply
with the terms of
the court order is unreasonable and far-fetched.
(19)
The applicant further
argues that the reason provided for the respondents as regards to the
usufruct should not be entertained by
the court. The Registrar
of Deeds set out in a letter dated 2 September 2015 to the
respondents the way forward as:
“
1. The
provisions of section 66 of the deeds act 47/37, stating that no
personal servitude of usufruct usus or habitation purporting
to
extend beyond the lifetime of the person in whose favour it is
created shall be registered, nor may a transfer or cession of
such
personal servitude to any person other than the owner of the land
encumbered thereby, be registered.
2. A home owners
association is a juristic person and the usufruct can be registered
for a period of 100 years or until the home
owners association does
not exist anymore.
3. The draft notarial
deeds as it is cannot be registered for an unlimited period
(indefinite) over the mentioned properties; our
suggestion would be
to change the wording of the period from unlimited to 99 years, for
the notarial deed to be registered.”
(20)
It
is clear that the respondents’ remedy is to approach the court
and to seek an order in terms of which the question of the
usufruct
is dealt with. The respondents should request the court to deal
with the fact that the respondents cannot perform
in terms of the
court order due to financial constraints and request relaxation of
the relevant clause of the award as set out
in the
Meadow
Glen case
[6]
.
(21)
No reason is afforded to
the court why the respondents did not follow this course of action.
(22)
It is so that the second
respondent should have approached the court in an application to deal
with the financial constraints it
was experiencing and to seek an
indulgence. It is evident that the respondents interacted with
the Registrar of Deeds to
try and solve the problem of registration,
and did refrain from trying to solve the problem. However, I
cannot find under
the circumstances where the respondents instructed
an attorney to deal with the applicant’s attorney and to
endeavour to
solve the impasse, that the respondents were wilful and
mala fide
.
(23)
I have considered all the
arguments, affidavits and facts placed before the court. I find
that the respondents did not comply
with the court order, but cannot
find that it was wilful and
mala
fides
for the reasons
set out above.
(24)
I therefor make the
following order:
1.
The application is
dismissed;
2.
The applicant to pay the
costs.
_____________________
Judge C Pretorius
Case
number
: 38024/2010
Matter heard
on
: 26 May 2016
For the
Applicant
: Adv BC Stoop SC
Instructed
by
: Coetzer & Partners
For the
Respondent
: Adv WJ Vermeulen SC
Instructed
by
: Van Zyl Le Roux Inc
Date of
Judgment
: 9 June 2016
[1]
2006(4) SA 326 (SCA) at paragraph 6
[2]
Supra
[3]
Supra
[4]
2015(2) SA 413 (SCA) at paragraph 8
[5]
Supra
[6]
Supra