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[2016] ZAGPPHC 1236
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Mkonza and Others v Western Crown Properties (Pty) Ltd and Others (87264/2015) [2016] ZAGPPHC 1236 (16 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 2 November 2016
Case
number: 87264/2015
Date:
16/11/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
In
the matter between:
NKOSINATHI
OWEN
MKONZA
First
Applicant
BOITUMELO
CHARMAIN
MKONZA
Second
Applicant
KETHUKHUTULA
MKONZA
Third
Applicant
and
WESTERN
CROWN PROPERTIES (PTY)
LTD
First
Respondent
BRUCE
FINNEMORE
Second
Respondent
MARGARET
FINNEMORE
Third
Respondent
JUDGMENT
BRENNER
AJ
1.
This application was brought in terms of rule 42(1)(a) or (c) of the
Uniform Rules of Court. The first to third applicants have
applied to
set aside the order of Mr Justice Mohlamonyane, ("Mohlamonyane
AJ"), granted on 30 July 2015, which declares
the applicants to
be in contempt of Court and commits them to terms of imprisonment
suspended subject to the fulfilment of certain
conditions.
2.
Since a plethora of applications preceded this one, I will refer to
the current application as "the rescission application".
3.
For convenience, the parties are referred to by name. The first
applicant is Nkosinathi Mkonza, the second applicant is Boitumelo
Mkonza, and the third applicant is Khethukuthula Mkonza. The first
respondent is Western Crown Properties 113 (Pty) Ltd ("Western
Crown"). The second respondent is Bruce Finnemore, and the third
respondent is Margaret Finnemore.
4.
The provisions of Rule 42(1)(a) and (c) of the Uniform Rules are
quoted below, to place matters in context:
"42.
Variation
and rescission
of
orders
(1)
The court may, in addition to any other powers it may
have, mero motu or upon the application of any party affected,
rescind or
vary:
(a)
An order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby,
......
(c) An order or
judgment granted
as
the
result of
a
mistake
common to the parties."
5.
The factual background against which the rescission application is
brought is summarised below. I am constrained to provide some
detail
about the events over the past three years which eventuated in this
rescission application.
6.
At all times material hereto, Western Crown was and remains the
registered owner of portion […]3 of the Farm Nooitgedacht
534
JQ Mogale City, Gauteng ("portion [...]3 Nooitgedacht").
Bruce and Margaret Finnemore have resided on this property.
A
property adjacent to portion […]3, namely, portion [...]2 of
the Farm Nooitgedacht 534 JQ, Mogale City, Gauteng ("portion
[…]3 Nooitgedacht" or "the property"), was
acquired by the Mkonza Family Trust ("the Trust" or
"the
Mkonza Family Trust"), and registered in its name on 31 August
2011.
7.
Circa 2012, it came to the Finnemores' attention that portion […]2
Nooitgedacht was being used unlawfully as a business
and storage
site.
6.
On 4 March 2013, Western Crown and Bruce and Margaret Finnemore
launched an urgent application in this Court under case number
13699/13, enrolled for 12 March 2013. It contained "Part A"
urgent relief, and "Part B" relief in the normal
course.
Eight respondents were cited, namely: "The Trustees from time to
time of the Mkonza Family Trust," Xuma Technologies
(Pty) Ltd
("Xuma"), Metallux SA (Pty) Ltd ("Metallux"),
Simon Chimotsotso ("Chimotsotso"), Karel
van den Berg ("Van
den Berg"), the MEC for the Gauteng Department of Agriculture
and Rural Development ("the MEC"),
the Head of the Gauteng
Department of Agriculture and Rural Development, and finally, as
eighth respondent, one TJ Benadie ("Benadie").
This is
referred to below as the enforcement application.
7.
The urgent relief sought against the Trustees of the Mkonza Family
Trust, Xuma, Metallux, Chimotsotso and van den Berg was interdictory
in nature. No relief was sought against the MEC or Head of the
Department of Agriculture and Rural Development.
8.
The three applicants in the enforcement application called for an
urgent interdict against them to:
8.1 refrain from issuing death threats
against the Finnemores, including their family, visitors, friends and
tenants present on
portion [...]3 Nooitgedacht;
8.2 refrain from behaving in a
threatening manner towards the above parties;
8.3 refrain from damaging the property
of Western Crown and the Finnemores, including that of the above
parties;
8.4 immediately cease the unlawful use
of portion [...]2 Nooitgedacht, including the use of the residence
and/or other structures
on portion [...]2 Nooitgedacht, and/or the
use of portion [...]2 Nooitgedacht to store or keep industrial
products, including cabling,
manholes and manhole covers.
9.
The "Part B" relief was for an order, in the ordinary
course, for the Trustees of the Mkonza Family Trust, Xuma, Metallux,
Chimotsotso and van den Berg to comply with:
9.1 all conditions of the compliance
notice issued by the Gauteng Department of Agriculture and Rural
Development, in terms of section
31L of the National Environmental
Management Act, 107 of 1998 ("NEMA"), in respect of portion
[...]2 Nooitgedacht, on
3 September 2012;
9.2 the title deed conditions
applicable to the above property;
9.3 the zoning conditions
applicable to the above property, in terms of the Peri Urban
Town-Planning Scheme, 1975, and/or
the Town Planning and Townships
Ordinance of 1995.
10.
The application was opposed. It is not clear what happened on 12
March 2013. It was enrolled on 4 September 2013, and it is
unclear
what happened on this date. Ultimately, the enforcement application
was argued on 28 January 2014 before Mr Justice Murphy
("Murphy
J"). On this date, it appears that all parties, other than the
seventh and eight respondents, were represented
by attorneys and
Counsel.
11.
The Court heard full argument, and then handed down an order. It
merits mention that the applicants in casu now dispute that
the
matter was argued between the parties on 28 January 2014. Of which,
more later.
12.
The order of Murphy J, ("the Murphy order"), directed the
Trustees of the Mkonza Family Trust, Xuma and Metallux to:
1.1
remove all vehicles, materials, machines
and equipment related to the unlawful use of Portion [...]2
Nooitgedacht within seven days
of this Order:
1.2
immediately cease with the use of portion
[...]2 Nooitgedacht for any purpose other than that permitted by:
1.2.1
The National Environmental Management Act 1998 (Act
107 of 1998) and the Regulations published in terms of that
Act;
1.2.2
The
Title conditions of the property; and
1.2.3
The zoning of the property.
1.3
not to commence
or recommence with any use of portion [...]2 Nooitgedacht for
purposes presently impermissible until and unless:
1.3.1
The title
conditions of the property have been amended to permit the intended
use;
1.3.2
The zoning of
the property has been changed to permit such intended use,·
and
1.3.3
The intended
change of land use of portion [...]2 Nooitgedacht has been authorised
in terms of the National Environmental Management
Act, 1998 (Act 107
of 1998), and the Regulations published in terms of that Act by the
Gauteng Department of Agriculture and Rural
Development.
1.4
pay the costs of
the application on
a
scale as between attorney and client,
jointly and severally, the one paying the other to be absolved."
14.
On 25 February 2014, an application was launched for committal
for contempt of Court, in respect of the Murphy order, by Western
Crown and the Finnemores, against the Trustees of the Mkonza Family
Trust and Xuma, as first and second respondents ("the
contempt
application").
15.
The application was served on the then attorneys of record for
the Trust and Xuma, namely, Tshisevhe Gwina Ratshimbilani Inc,
("TGR"),
on 25 February 2014. TGR had acted for them in the
enforcement application.
16.
The notice of motion cited the first respondent as "The
trustees from time to time of the Mkonza Family Trust" and the
second respondent as "Xuma Technologies (Pty) Ltd".
17.
The notice of motion sought the following relief:
1.
The first and second respondents are found to be in
contempt of the order of this Court granted on 28 January 2014 in
Case number
13699/2013;
2.
The persons listed below are committed to such period of
imprisonment for contempt of Court for failing to comply with the
said
order of Court and on such conditions
as
this honourable
Court determines.
2.1
the current Trustees of the Mkonza Family Trust;
2.2
The current directors of Xuma Technologies (Pty) Ltd being:
2.2.1
Boitumelo Mkonza (ID [...]) of [...], Sharon Lea, Randburg,
2194, and
2.2.2
Bongiwe Mkonza (ID [...]) of [...], Newcastle,
7700.
15.
In the contempt application, Bruce Finnemore deposed to a
founding affidavit to which he attached several letters exchanged
between
the parties' attorneys post the Murphy order. On 21 February
2014, when it was apparent that the Trust and Xuma were acting in
contempt of the Murphy order, a letter of demand was sent by the
attorneys for Western Crown and the Finnemores, Erasmus attorneys,
to
confirm the disregard of the order and to call upon the defaulting
parties to rectify this conduct.
16.
TGR attorneys requested a copy of the Murphy order and made
mention of a possible appeal against same. The order was sent to TGR
and compliance again demanded. There was no response from TGR by 25
February 2014.
17.
On 19 February 2015, the contempt application was argued
before Mohlamonyane AJ. A comprehensive and fully reasoned judgment
was
handed down on 30 July 2015 ("the Mohlamonyane order").
18.
I have had the benefit of considering the papers in the
contempt application before Mohlamonyane AJ, provided to me by the
applicants'
current attorneys, Mchunu attorneys, and
supplemented by Erasmus attorneys, the respondents' attorneys. Mchunu
attorneys provided
me with a copy of the Deed of Trust dated 15
September 2010 in which Boitumelo Mkonza and Khethukuthula Mkonza
were appointed as
trustees, and a company search on Xuma Technologies
(Pty) Ltd dated 25 February 2014, a date which postdates the Murphy
order.
19.
In Court, I had asked Mchunu attorneys for a copy of the
letters of authority of the Trust, but, to date, the letters have not
been
produced. Nothing turns on this.
20.
The papers in the contempt application under case number
13699/2013 are illuminating. In the founding affidavit, it is noted
that,
by February 2015, the lease of portion [...]2 Nooitgedacht
between the owner/lessor, the Trust, and Metallux, had expired, and
Metallux had vacated the property. All respondents, other than the
first and second, had fallen out of the picture.
21.
Western Crown and the Finnemores asserted that the Trust and
Xuma remained in contempt of court in that they had, despite the
Murphy
order:
a.
failed to remove the vehicles, material, machinery and
equipment related to the unlawful use of the property;
b.
continued to use the property for business purposes, in
contravention of NEMA and the title conditions, by storing
business-related
vehicles, material, machinery and equipment, and by
using the property to dump waste;
c.
commenced or continued to permit the unlawful use of the
property to dump rubble.
22.
The above assertions were corroborated by photographs of the
property taken by Western Crown and the Finnemores on 12 and 24
February
2014. The judgment referred to the title deed conditions of
Portion [...]2 Nooitgedacht as prohibiting more than one dwelling
house
with outbuildings and the use of the land for purposes other
than residential and agricultural. Any variations hereto would
require
the written approval of the Controlling Authority as defined
in Act 21 of 1940.
23.
A notice to oppose on behalf of, inter alia, the Trust and
Xuma, was served on 26 February 2014, by Attorneys TGR.
24.
Nkosinathi Mkonza deposed to the opposing affidavit, on 9 July
2014, on behalf of the Trust, and as CEO of Xuma. No other proof of
authority was given. No resolutions or confirmatory affidavits from
Boitumelo or Khethukutula Mkonza were annexed.
25.
Nkosinathi Mkonza averred that, when the photographs were
taken, the Trust and Xuma were busy removing the material and cables
from
the property. This and the removal of vehicles was completed by
9 July 2014. Only one vehicle, a truck which had broken down,
remained
in situ on 9 July 2014.
26.
Prior to the hearing, the Mkonza Family Trust and Xuma
delivered a first supplementary affidavit, deposed to on 26 January
2015
by Boitumelo Mkonza as director of Xuma and as trustee of the
Trust.
27.
The affidavit's purpose was to satisfy the Court that there
was compliance with the Murphy order. Three letters were handed up:
the first, from an official of the Gauteng Department of Agriculture
and Rural Development ("GOARD"), the second from
another
official from GOARD, and the third from the Director of Public
Prosecutions in Johannesburg.
28.
When, on 27 February 2015, the Trust and Xuma unsuccessfully
sought to introduce a further, second supplementary affidavit, to
show
more photographs of the property, Boitumelo Mkonza deposed to an
affidavit dated 24 February 2015, citing herself as:
47.6.1
”
I am an
adult female person and
a
director of Xuma Technologies (Pty)
Ltd, the second respondent herein. I am
a
trustee of the
Mkonza Family Trust.
47.6.2
I confirm that
I am duly authorised to represent the first and second respondents
and to sign all documents, including affidavits,
in respect of this
matter."
29.
This application for leave was opposed. In reply to this
second supplementary affidavit, the Finnemores attached more
photographs,
and an extract from Google Earth images, to controvert
the above assertions. Boitumelo Mkonza deposed to the replying
affidavit
on 9 March 2015.
30.
The application of the Trust and Xuma to introduce the second
supplementary affidavit was dismissed, since, inter alia, in the
Court's
view, the Trust and Xuma were aware of the Finnemore's
photographs since July 2014, and had done nothing about it. At the
very
least, the photographs should have been produced before the
hearing of the matter.
31.
The judgment notes that the Murphy order of 28 January 2014
was never appealed and remained
"valid, binding and
enforceable."
32.
The Court resolved to accept the authority of deponent
Nkosinathi Mkonza to represent the Mkonza Family Trust and Xuma, in
the interests
of justice.
33.
It adverted to the leading case of
Fakie NO v CC11 Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
SCA,
which spelt out the requirements
for an order for contempt of court. The three requisites, summarised,
are: (1) the existence of
the order; (2) service or notice of the
order on the respondents and (3), non-compliance.
34.
The judgment quoted the following instructive passage from
Fakie
at paragraph 23 p 338:
"23
....
Once the three requisites mentioned have been
proved, in the absence of evidence raising
a
reasonable doubt as to whether the accused
acted wilfully and ma/a fide, all the requisites of the offence will
have been established.
What is changed is that the accused no longer
bears
a
legal burden
to disprove wilfulness and ma/a fides on
a
balance of probabilities but to avoid
conviction need only lead evidence that establishes a reasonable
doubt."
35.
The Court found that portion [...]2 Nooitgedacht was still
being used for business purposes. It was not established that the
title
deed conditions had been varied, nor that the zoning had been
changed.
36.
At paragraph 15 of Mohlamonyane AJ's judgment, the following
is stated:
"15. From the
Respondents' own version, I am satisfied that they are aware of the
Order, which was granted pursuant to an opposed
application in which
they were represented by their legal representatives."
37.
The Court was enjoined to determine whether there was
compliance with the Murphy order. It found that the argument of the
Trust
and Xuma was flawed, and that the letters produced by them
could not supercede a court order, and their purpose was to consider
environmental deterioration of the site. It was found that the
letters did not take the respondents' case any further.
38.
The photographs produced by the Finnemores were analysed and
revealed, inter alia, concrete and building rubble, bricks and
cables,
commercial vehicles, manholes, labourers working on an
industrial site on the property, all between 12 February 2014 and 29
October
2014.
39.
At paragraph 28 of the judgment, the Court found that the
contempt was
"proven beyond reasonable doubt."
40.
On 30 July 2015, Mohlamonyane AJ duly granted the contempt and
committal order which appears at paragraph 46 of the judgment.
(Reference
to paragraph 47 from paragraph "47.6" onwards is
an obvious mistake, and should read "46.7" et sequitur). It
is extensive but is quoted below for convenience:
"(46) In the
result I make the following Order:
46.1
The First and
Second Respondents be and are hereby found to be in contempt of the
Order issued out of the Court on 28 January 2014
by Murphy J under
case number 13699/2013.
46.2
Boitumelo
Charmain Mkonza (ID 830418 0739 086) in her capacities as a trustee
of the First Respondent and director of the Second
Respondent is
committed to immediate imprisonment for that contempt of this court
for a period of fifteen (15) days.
46.3
The following
persons being the current trustees of the First Respondent and
directors of the Second Respondent are committed to
imprisonment for
contempt of this Court for a period of thirty (30) days:
46.3.1
Kethukuthula
Mkonza (ID […]); and
46.3.2
Nkosinathi
Owen Mkonza (ID […]).
46.4
The imprisonment
ordered above, which shall also be served in full, is suspended for
2
(two) years on conditions that:
46.4.1
The First and
Second Respondents fully and strictly comply with the Order issued
out of this Court on 28 January 2014 by Murphy
J under case number
13699/2013 within
30
(thirty) days of the date of this Order;
and
46.4.2
The First and
Second Respondents comply with the conditions on which they are to
allow the Applicants to inspect the property to
verify compliance
with this Order imposed below.
46.5
The compliance
with the order of Murphy J ordered above relates to the entirety of
that Order and with regard to parts 1.1, 1.2
and 1.3 thereof shall
include:
46.5.1
1
Regarding
part 1.1 of the Order:
The removal from Portion [...]2
Nooitgedacht of:
46.5.1.1
all
commercial and construction vehicles;
46.5.1.2
all
material, machines and equipment related to the unlawful
use of the property, including pipes, cables, cable drums, trunking,
manholes,
manhole covers, bricks, building materials and related
rubble.
46.5.2
Regarding
part 1.
2
of the Order:
46.5.2.1
Cessation of
the use of Portion [...]2 Nooitgedacht for any purpose impermissible
in terms of the National Environmental Management
Act, 1998 (Act 107
of 1998), the title conditions applicable to the property and/or the
zoning of the property including:
46.5.2.1.1
Use for
business and/or industrial purposes;
46.5.2.1.2
Use for
the dumping and/or storage of cement, cement columns and other
materials not related exclusively to agricultural or residential
use;
and
46.5.2.1.3
Use for
accommodating persons and/or in structures/buildings erected in
contravention of the title conditions of the property without
building plans approved by the local authority.
46.5.2.2
Removal of
all buildings, partially completed buildings, foundations for
buildings, building materials and rubble related to buildings
in
contravention of title condition
2
that provides that: "Not
more than one dwelling house together with such outbuildings as are
ordinarily required to be used
in connection therewith shall be
erected on the land" and for which no building plans have been
approved by the local authority.
46.5.3
Regarding
part 1.
3
of the Order
:
46.5.3.1
Removal of
all cement, cement columns and other rubble introduced onto the
property after
28
January 2014;
46.5.3.2
Not
commencing or recommencing with the use of Portion [...]2
Nooitgedacht in any way impermissible in terms of the Environmental
Management Act, 1998 (Act 107 of 1998), the title conditions
applicable to the property and/or the zoning of the property,
including
the uses listed in 46.
5. 2.
1 above.
47.6
The Applicants are herewith authorised to
enter onto and inspect Portion [...]2 Nooitgedacht for purposes of
verifying compliance
with this Order on the following conditions:
47.6.1
Such inspection must be undertaken no less than
30
(thirty) days from the date of this Order;
47.6.2
Such inspection must be undertaken between 08h00 and
17h00 on a week's day;
47.6.3
The Applicants must give the Respondents
at least forty eight (48) hours written notice of such inspection and
who will be undertaking
the inspection on the Applicant's behalf,·
47.6.4
The Respondents must give the Applicants
and/or their representatives unfettered access to all parts of the
property and all buildings
thereon at the time of the Applicants'
choosing subject only to the Applicants having complied with the
conditions herein imposed,·
47.6.6.A
A representative of the Respondents shall
accompany the Applicants and/or their representatives on the
inspection.
47.7
Should the First and/or Second Respondent
fail to strictly comply with this Order including the conditions of
inspection aforementioned
and/or in any way breach the conditions of
suspension imposed herein, the Applicants may approach the above
Honourable Court for
an order for the said person's committal to
prison, on the same papers, supplemented as necessary.
47.8
The First and Second Respondents are
ordered to pay the costs of this application on a scale as between
attorney and own client,
jointly and severally, the one paying, the
others to be absolved."
41.
It is common cause that there was no application for leave to appeal
against the judgment of Mr Justice Mohlamonyane.
42.
On 22 September 2015, Western Crown and the Finnemores brought an
urgent application against the trustees of the Mkonza Family
Trust
and Xuma to enforce an order for committal to prison, owing to
failure to comply with the Mohlamonyane order. It was struck
from the
roll for want of urgency.
43.
An application for leave to appeal against this order, which was
without merit, appears to have been abandoned.
44.
On 19 October 2015, Nkosinathi Mkonza, Boitumelo Mkonza and
Kethukhula Mkonza launched this rescission application under case
number 87264/2015, the relief being for the rescission and setting
aside of the order of Mohlamonyane AJ, delivered on 30 July
2015 in
case number 13699/2013, to the extent that such order was made to
affect the applicants.
45.
The application was opposed by the respondents, being Western Crown,
and Messrs Bruce and Margaret Finnemore.
46.
The grounds for the rescission application are adumbrated below at
paragraph 4 of the founding affidavit of Nkosinathi Mkonza
as:
"As can be seen from annexure
"NOM1" the parties that were before Mohlamonyane AJ were
the ''Trustees from time to
time of the Mkonza Family Trust" as
first respondent and Xuma Technologies (Pty) Ltd as second
respondent. None of us were
involved and we were never called upon to
appear before him to show cause, if any, why we should not be
committed for contempt
of court."
47.
And further, at paragraph 16:
1.
“
the order
of Murphy J was not made against the present applicants;
2.
that order was not
served on any of the applicants;
3.
even if it were to
be found that it was served on us, it was not binding on us;
4.
to the extent
that the order was made against us it is
a
nullity."
48.
And further, at paragraph 17:
"As already stated above none
of us were cited as parties to any proceedings before either Murphy J
or Mohlamonyane A.J. I
am advised that no court of law can make an
order against a person who is not before it and if such order is
made, it is not binding
against such party."
49.
The gravamen of the applicants' case in casu is founded on the fact
that they were not personally cited, whether in the enforcement
application, or the contempt application. The citation of the Mkonza
Family Trust as "The Trustees from time to time of the
Mkonza
Family Trust" was, in their view, "fatally defective".
Their names were not specifically identified, where
applicable, in
their capacities as trustees of the Mkonza Family Trust, or in their
capacities as directors of Xuma Technologies
(Pty) Ltd.
50.
In the result, therefore, they were not parties to either such
application. The Murphy order was not served on them, and even
if it
is found that it was, it was not binding on them because of the
failure to properly cite them. In other words, they were
not properly
before the Court when either Court order was granted, and
specifically the contempt and committal order.
51.
It is asserted for the applicants that the matter was not argued
before Murphy J on 28 January 2014. Rather, without instructions
from
them, an order was drafted and was made an order of Court.
52.
The respondents vehemently deny this. They assert that the matter was
fully argued before Murphy J, and this is confirmed by
the affidavit
of attorney Gideon Erasmus who was present in Court on the day. The
trustees of the Trust and Xuma were represented
by Counsel, Advocate
T C Tshavungwha of the Johannesburg Bar. Based on the objective
facts, I accept the version of the respondents.
53.
In the opposing affidavit, the respondents make a trenchant point
about the statement made by the applicants in their founding
affidavit in the rescission application:
5.3
The respondents
respectfully submit that in (wrongly) asserting that
"without
instructions from us, an order was drafted and was subsequently made
an order of Court"
the applicants by necessary
implication admit that:
5.3.1
they were the
ones giving alternatively entitled to give instructions in the
application before Murphy J;
5.3.2
they were
entitled to do
so
because they were properly before the
honourable Court;
5.3.3
in being
similarly cited in the contempt application, they were also properly
before the honourable Mohlamonyane AJ."
54.
The respondents go on to state that, on 15 January 2015, the
applicants' quondam attorneys, TGR, informed the respondents in
writing that the second and third applicants were the trustees of the
Trust. Finnemore points out that the applicants had always
admitted,
under oath, that they were the trustees of the Trust and/or directors
of Xuma. The applicants, in deposing to affidavits,
qua trustees
and/or directors, properly placed themselves before both Murphy J and
Mohlamonyane AJ. They were properly represented
by Counsel and their
former attorneys, TGR, when both the Murphy and Mohlamonyane orders
were granted and were consequently aware
of such orders without the
need for proper service thereof.
55.
The contents of the replying affidavit, deposed to by Nkosinathi qua
CEO of Xuma, reiterates the statements in the founding
affidavit, and
argues that there was no attempt to
'Join any of the Trustees in
the proceedings either in his or her personal capacity or capacity
as
representative of the Trust."
He advances as the reason
for not applying for leave to appeal against the Murphy judgment, the
fact that the applicants were not
parties thereto. In his view, the
Mohlamonyane order was an
"empty order in that you cannot
imprison any Family Trust nor can you imprison
a
company".
This is a significant concession.
56.
In establishing a basis for rescission under rule 42(1)(a) or (c), I
need to determine whether the applicants were indeed not
parties
before Court when the Murphy order and, in particular, the
Mohlamonyane order was given, resulting in same being granted
erroneously in absentia, or whether there was any mistake common to
the parties which justifies a variation or setting aside of
the order
sought to be rescinded.
57.
Precursory to the above, I will briefly traverse the requirements for
contempt of court proceedings considered by Mohlamonyane
AJ, and then
deal with the material issues raised in the rescission application by
the trustees of the Mkonza Family Trust and
the directors of Xuma.
58.
The first requirement, that is, the existence of the Murphy order, is
not in dispute. The second question in this case is whether
Nkosinathi Mkonza, Boitumelo Mkonza, and Kethukuthula Mkonza knew
that they were at risk, personally, for the contempt of the Murphy
order, on behalf of the Mkonza Family Trust, and Xuma Technologies
(Pty) Ltd. This poses the question as to whether it was proved
by the
respondents in casu that the applicants had received service or
notice of the Murphy order prior to the launch of the contempt
application. I will traverse this later as it overlaps with the other
points taken by them. The third requirement is whether it
was proved
that there was non-compliance with the order. I am satisfied from the
facts outlined by Mohlamonyane AJ that he made
a correct finding that
there was indeed non compliance. This was not seriously
challenged in the rescission application.
59.
I will turn to an analysis of the evidence which pertains to these
disputes. By way of preliminary observation, the applicants'
own
version in their affidavits in the rescission application contradicts
and indeed substantially vitiates their very basis for
setting aside
the Mohlamonyane order.
60.
The CIPRO search on Xuma reveals that Boitumelo and Bongiwe Mkonza
were appointed directors on 10 April 2006, and remained so
as at 25
February 2014. A Searchworks report dated 22 January 2015 indicates
that Nkosinathi Mkonza was appointed as a director
of Xuma at some
stage.
61.
Peculiarly, according to the document, he was appointed on 10 July
2014 but resigned on 22 June 2014. This information is patently
incorrect.
62.
I have nevertheless taken account of the admission by Nkosinathi
himself that, from inception of the litigation, until at least
22
February 2016, Nkosinathi had maintained under oath that he was the
CEO of Xuma.
63.
A letter dated 19 January 2015 from TGR to Erasmus Attorneys confirms
that, at the time, TGR represented the Mkonza Family Trust
and that
the trustees of the Mkonza Family Trust were Khethukuthula "Nkosi"
and Boitumelo "Nkosi". It would
appear that the surname
"Nkosi" is a patent mistake.
64.
The Deed of Trust dated 15 September 2010 reveals that Boitumelo
Mkonza and Khethukuthula Mkonza were appointed as trustees.
The Trust
appears to have been registered with the Master, as it was allocated
a registration number, namely, IT 280/2011, and
this much is apparent
from its title deed to portion [...]2 Nooitgedacht.
65.
In this rescission application, Nkosinathi Mkonza, the first
applicant, signed the founding affidavit and Boitumelo and
Khethukuthula
Mkonza signed confirmatory affidavits, all on 27
October 2015. This is significant, because whatever Nkosinathi says
in his founding
affidavit is confirmed as true and correct by
Boitumelo and Khethukuthula Mkonza as the second and third
applicants.
66.
It is apparent from the applicants' version in the rescission
application that the applicants in casu had full knowledge of
the
entire sequence of events leading up to the Murphy and Mohlamonyane
orders, and that they were fully aware of the terms of
these orders.
They were even aware of the urgent committal application which was
struck from the roll for want of urgency on 22
September 2015. In the
result, therefore, notice of both orders was clearly given to and
understood by the applicants. In effect,
on their own version, they
have been hoisted by their own petard.
67.
In Nkosinathi's founding affidavit, he admits to knowledge of the
enforcement application which resulted in the Murphy order.
He
proceeds to state that, in the enforcement application, on behalf of
the trustees of the Mkonza Family Trust, Xuma, Metallux,
Chimotsotso
and van den Berg, Ntombizethu Ngoma, a legal advisor of Metallux,
signed an opposing affidavit. Khethukuthula had also
deposed to an
affidavit for the Mkonza Family Trust and Xuma.
68.
In the contempt application, both Nkosinathi Mkonza and Boitumelo
Mkonza signed affidavits, Nkosinathi signing on 9 July 2014
as CEO of
Xuma and Boitumelo signing on 26 January 2015 and 24 February 2015 as
director of Xuma and trustee of the Mkonza Family
Trust.
69.
On a conspectus of the papers before me, I may safely make the
following observations. Nowhere in any of the affidavits filed
by the
trustees from time to time of the Mkonza Family Trust, or the
directors of Xuma Technologies (Pty) Ltd, in the enforcement
application, or in the contempt application, is it alleged that the
applicants in casu should have been cited personally.
70.
Nowhere is it denied that Khethukuthula and Boitumelo were the
trustees of the Trust. Nowhere is it denied that the directors
of
Xuma were Boitumelo, Bongiwe and Nkosinathi. Nowhere in the
rescission application do the applicants deny that the Trust and
Xuma
are in contempt of the orders of Murphy and Mohlamonyane. Their
affidavits in the rescission application make it plain that
they were
at all material times aware of what was going on, from day one, and
this included notice and knowledge of all applications
brought by the
respondents, and the notice and knowledge of the orders granted.
71.
They were aware of the terms of the notice of motion in the contempt
application, which were clear and unambiguous in seeking
relief
against them, personally, albeit qua legal representatives of the
Trust and Xuma, but they never challenged the authority
of
Mohlamonyane to make an order against them.
72.
They admit in the rescission application that they are aware that it
is incompetent at law to imprison a Trust or a company.
By inference,
then, they could have safely drawn the conclusion that the only way
of enforcing the Murphy order was through an
order against the legal
representatives of these bodies.
73.
The attorney for the respondents, Mr Erasmus, referred to the case of
Nedbank Limited v Trustees for the time being of the QC
Vermeulen Trust and others case 12750/2010
(2011) ZAWCHC 382
in
which, at paragraph 16 et sequitur, the Court said:
"In legal proceedings the
trustees must act nominee officii ... it is usual for the trustees to
be cited
as
"A, B and
C"
in their capacity
as
the trustees of the XYZ Trust" but cases in which the trust
as
such is cited are not unknown and there should be no
objection to a citation of the "trustees for the time being of
the XYZ
Trust".
74.
The above rationale makes sense, because it is the trust which is the
litigant, and the trustees may change from time to time,
so that the
citation of the trustees by name may become quite academic over the
passage of time, when different trustees may be
appointed or removed.
75.
The case of
Twentieth Century Fox Film Corporation v Playboy
Films 1978 (3) SA WLD 202
is pertinent. Here, Mr Justice
King AJ said at paragraph D page 203:
"An order ad factum
praestandum against a company should also be served on its directors
if a punitive order is to be sought
against the directors in order to
establish knowledge of the order of Court."
76.
And at page 203 paragraphs F to Hof
Twentieth Century Fox
:
"The contempt of Jagger (the
director of the first respondent company) is a gross one. He not only
caused the first respondent
to fail to comply with the terms of the
order, but expressly stated that he would not do
so.
When an
application for his committal for contempt was served on him he took
no steps in regard thereto and left the matter in the
hands of an
attorney without enquiring
as
to what was happening in the
matter. He then proceeded to liquidate the first respondent without
any regard to his personal position.
This Court must jealously guard the
orders which it grants in the interests of the community at large. If
persons such as Jagger
were permitted to trifle with the orders of
this Court without being severely punished therefor the
administration of justice would
be brought into disrepute and
rendered valueless."
77.
Reading from the headnote in
Fakie
, at paragraph A to
Bat page 327:
In particular, the applicant (in
contempt proceedings) had to prove the requisites of contempt (the
order, service or notice, non-compliance
and wilfulness and ma/a
tides) beyond a reasonable doubt. But, once the applicant had proved
the order, service or notice and non-compliance,
the respondent bore
an evidentiary burden in relation to wilfulness and ma/a fides:
Should he fail to advance evidence that established
a reasonable
doubt as to whether his non compliance was wilful and ma/a fide,
the applicant would have proved contempt beyond
a reasonable doubt. A
declarator and other appropriate remedies remained available to the
applicant on proof on a balance of probabilities.
78.
And at paragraph A to B page 332 of
Fakie:
"It is a crime unlawfully and
intentionally to disobey a court order. This type of contempt of
court is part of a broader offence,
which can take many forms, but
the essence of which lies in violating the dignity, repute or
authority of the court. The offence
has, in general terms, received a
constitutional 'stamp of approval' since the rule of law
-
a
founding value of the Constitution
-
requires that the dignity
and authority of the courts, as well as their capacity to carry out
their functions, should always be
maintained."
79.
Plainly, the applicants confirmed their knowledge of the Murphy order
and therefore the requisite notice thereof by admitting
that they, as
representatives of the Trust and/or Xuma:
a.
instructed legal representatives in the enforcement
application in January 2014, opposed same and certain of them deposed
to affidavits
therein;
b.
instructed legal representatives in the contempt application
in January 2015, opposed and deposed to affidavits therein;
c.
never denied that they had knowledge of both orders;
d.
in the rescission application, all confirmed their knowledge
of the tout ensemble of events since the launch of the enforcement
application et sequitur.
80.
Counsel for the applicants, Mr Tokota SC, relied on
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
A at 651
for
the argument that a judgment cannot be pleaded as res judicata
against someone who was not a party to the suit. He relied on
various
authorities to support the proposition that there was a non-joinder
of the applicants in either application. He relied
on, inter alia,
Ex
Parte Body Corporate of Caroline Court
2001 (4) SA 1230
SCA,
in
which it was held that interested parties should be joined to the
suit. But in that case, it was third party bondholders who
were not
joined, so the facts in casu are distinguishable.
81.
Another case relied upon was
City of Johannesburg Metropolitan
Municpality and three others v Philani Hlophe and two others case
number 1035/2013 dated 18 March
2015.
When it became
clear that the City of Johannesburg was not going to comply with a
court order, its functionaries, namely, the Executive
Mayor, City
Manager, and Executive Director: Housing, were joined as further
parties to enforce the order. Once again, the facts
in casu are
distinguishable. In casu, from the outset, the Trustees from time to
time of the Mkonza Family Trust and Xuma were
cited as parties. In
the contempt application, the then applicants went further and
claimed a committal order against the trustees
of the Trust and
against the named directors of Xuma. This was consistent with the
principle established by the
City of Johannesburg
case.
Indeed, the
City of Johannesburg
case goes as
far as to hold that the functionaries for the City did not have to be
joined in the original enforcement application.
82.
At paragraph 22 of the
City of Johannesburg
judgment,
the SCA had the following to say:
"22 The argument on behalf of
the functionaries
is
that the mandamus could only have been
granted had the functionaries been joined in the eviction application
from the beginning.
I am unable to agree. A party that initiates
legal proceedings against a municipality cannot be expected to act on
the assumption
that if the litigation
is
successful the
municipality will not comply with the order against it. Changing
Tides (the registered owner of the occupied property)
was
under
no obligation to cite the functionaries in the eviction application.
Only when the City failed to comply with the order of
Claassen J did
the need arise to look to the functionaries and that was the purpose
of the enforcement application."
83.
Reverting to the facts in the rescission application, the strength of
the respondents' defence is a fortiori even more compelling,
because
the trustees of the Trust and Xuma were cited as respondents from
inception of proceedings, in both the enforcement and
contempt
applications.
84.
The case of
Premier Food (Pty) Ltd v Manoim NO and others
2016
(1) SA 445
SCA,
quoted by Counsel for the applicants as proof
that a Court would only have jurisdiction to convict a witness who
was an accused
before Court, is of no direct relevance. This because
the case turned on the power of the Competition Tribunal to grant an
order
to declare the cartel activity of Premier a prohibited practice
in circumstances in which Premier had secured conditional immunity
from the
Competition Commission. I align myself with the
dictum in
Man Truck and Bus (SA) (Pty) Ltd v Dusbus
Leasing CC and others
2004 (1) SA 454
Wat paragraphs 33 to 34 at page
469
where the Court held:
".....
the requirement of the
'same persons' did not mean only the identical individuals who were
parties to the earlier proceedings, but
included persons who, in law,
were identified with the parties to the proceedings. Whether someone
had to be regarded
as
a so-called privy, or
as
being
identified with the parties, depended upon the facts of each
particular case."
85.
The principle of persons who, in law, were identified as parties to
proceedings, was approved in
Royal Sechaba Holdings (Pty) Ltd v
Coote and another
2014 (5) SA 562
SCA
at paragraph 21
where the Court said:
"As Brand JA in
Prinsloo
said, our courts have recognised that
rigid adherence to the requirements of the same cause of action and
same relief would defeat
the purpose of res judicata. There is no
reason why
a
similar approach should not be adopted for the
same-parties requirement."
86.
The citation of the
Prinsloo
case is:
Pri
nsloo
NO and others v Godex 15 (Pty) Ltd and another
2014 (5) SA 297
SCA.
87.
The respondents asserted that the applicants had plainly submitted to
the jurisdiction of this Court and quoted the authority
of
Purser
v Sales and another
2001 (3) SA 453
SCA at 453H:
"A defendant who raises no
objection to a court's jurisdiction and asks it to dismiss on its
merits a claim brought against
him is invoking the jurisdiction of
the court just as surely as the plaintiff invoked it when he
instituted the claim. Such a defendant
does so in order to defeat the
plaintiff's claim in a way which will be decisive and will render him
immune from any subsequent
attempt to assert the claim."
88.
It was further argued for the respondents that the doctrine of
acquiescence applied to the facts in the rescission application,
because the applicants instructed their legal representatives in the
enforcement and contempt applications and participated in
such
proceedings with full knowledge of the nature and consequences of the
relief sought, including relief for their incarceration.
They are
accordingly estopped from denying the power of Mohlamonyane AJ to
grant this order. As enunciated in
Botha v White
2004 (3) SA
184
T at paragraph 23 et sequitur:
"regarding the doctrine of
acquiescence, Friedman J,....in Burnkloof Caterers (Pty) Ltd v
Horseshoe Carriers (Greenpoint) (Pty)
Ltd
1974 (2) SA 125
C
at
137 A, noted that it is really nothing more than an alternative term
for estoppel."
89.
In summary, therefore, the respondents contend that the application
was brought in the face of the following established facts,
namely:
a.
The applicants being the trustees of the Trust and/or
directors of Xuma, on their own admission;
b.
Their active participation in the enforcement and contempt
applications, including giving instructions to their attorneys and
Counsel,
on their own admission;
c.
Their acquiescence in and to the authority and jurisdiction of
Mohlamonyane AJ;
d.
Their failure to challenge his authority and jurisdiction
until after litis contestatio.
90.
The respondents seek the dismissal of the rescission application with
an exemplary award of costs on the attorney and own client
scale
owing to the applicants' alleged abuse of the process of the Court,
without merit, in the face of their remaining in wilful
contempt of
two orders of Court.
91.
On a consideration of the facts traversed above, I am satisfied that
the applicants have failed to prove an entitlement to rescission,
whether under Rule 42(1)(a) or (c) of the Uniform Rules. The judgment
of Mohlamonyane AJ was not erroneously granted in the applicants'
absence, nor was it granted owing to any mistake common to the
parties. The terms of the notice of motion seeking the contempt
and
committal order were unequivocal and not susceptible to any
interpretation other than that the committal relief was sought
against them as representatives of the Trust and Xuma.
92.
However, there remains an anomaly which warrants mero motu
intervention, this in terms of Rule 42(1)(b). The committal order
at
paragraph 46.2 of the Mohlamonyane judgment correctly commits
Boitumelo Mkonza to 15 days' imprisonment as trustee of the Trust
and
director of Xuma. The committal order against Khethukuthula and
Nkosinathi Mkonza is, however, flawed, on the facts, as known,
and
attributable to a patent error regarding same. Paragraph 46.3
incorrectly refers to them as both trustees of the Trust and
directors of Xuma. Khethukuthula is only a trustee of the Trust.
Nkosinathi was never a trustee.
93.
While the CIPRO search of February 2014 does not reflect Nkosinathi
as a director, he consistently maintained, under oath, in
a plethora
of affidavits, that he was and is the CEO of Xuma. This suffices for
purposes of the committal order. I have resolved,
therefore, to vary
the order only to the extent of this patent error, and to reduce the
number of days of imprisonment on the premise
that, had the true
facts been apparent at the time, a term of 15 and not 30 days would
have been ordered, since each party had
only represented one entity.
94.
It merits mention that, based on the CIPRO report, even though
Bongiwe Mkonza appears to have been a director of Xuma since
10 April
2006, her non-participation and non-citation in the proceedings seems
to have permitted her to escape the consequences
of the committal
order.
95.
The applicants' application was transparently without merit, on their
own version, and ill-considered. The applicants were expedient
in
their approach to the matter and their conduct appears to support a
belief that they may behave with abject impunity when it
comes to
compliance with court orders. A special award of costs is indicated.
96.
The following order is granted:
a. The application is dismissed;
b. The applicants are directed, both
in their representative capacities, and personally, de bonis
propriis, to pay the costs of
this application, jointly and
severally, on the attorney and client scale;
c. The order of Mohlamonyane AJ dated
30 July 2015 is amended only to the following extent, namely, by the
deletion of paragraph
46.3 and the substitution therefor of the
following:
"46.3.1
Khethukuthula Mkonza (ID
[…]
)
in his capacity
as
trustee
of the Mkonza Family Trust
is
committed
to imprisonment for contempt of this Court for
a
period of 15 (fifteen) days;
46.3.2
Nkosinathi Owen Mkonza (ID […]) in his capacity
as
CEO of Xuma Technologies (Pty) Ltd
is
committed to imprisonment for contempt of this
Court for
a
period of
15 (fifteen) days;"
Appearances
Counsel
for
Applicant: Attorney
Gideon Erasmus
Instructed
by: Erasmus
Attorneys
For
the Defendant:
Advocate
BR Takata SC
Instructed
by: Mchunu
Attorneys