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[2016] ZAGPPHC 1028
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South African Rugby League Association v Van Reenen (A19/15) [2016] ZAGPPHC 1028 (8 December 2016)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE GAUTENG HIGH COURT: PRETORIA
A19/15
8/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
THE
SOUTH AFRICAN RUGBY LEAGUE ASSOCIATION
Applicant
AND
DAVE
VAN
REENEN Respondent
Heard:
15 November 2016
Delivered:
8 December 2016
Judgment
Molahlehi
AJ
Introduction
[1]
This is an application in terms of which the applicant seeks an order
finding the respondent, Mr Van Reenen to be in contempt
of the court
order made on 27 February 2015. It is further prayed in the notice of
motion that the respondent be committed to prison
for a period of 30
days, suspended for a period of one year on condition that the
respondent complies with the court order.
[2]
The order made against the respondent and others was issued on the
interim basis. On the return day, the court discharged the
rule
nisi
in relation to the second to further respondents. Aggrieved
by that outcome, the applicant applied for leave to appeal against
that
judgment. The application for leave to appeal was granted with
the
rule nisi
extended pending the hearing of the appeal.
[3]
The application is opposed by the respondent.
Background
facts
[4]
It is common cause that the respondent was the president of the
applicant dating back to 2004. The tension between the respondent
and
the executive committee of the board of the applicant developed
during June 2011. It was apparently as a result of the conflict
that
executive board members passed a resolution of no confidence on the
respondent during the same year.
[5]
The Rugby League International Federation (RUF) intervened, and
recommended that the dispute between the parties be referred
to
mediation. The outcome of the mediation was that a task team was
formed to consider the restructuring of the structures of the
applicant pending the adoption of the new constitution and
appointment of the board.
[6]
The respondent, according to the deponent to the founding affidavit
of Mr Botha the president of the applicant, rejected the
appointment
of the interim committee. He did the same with the board which was
elected after the adoption of the constitution.
The respondent
continued to communicate with the RILF as if he was still the
president and undermining the presidency Mr Botha.
He, in this
respect, continued communicating with the RILF as if he was the
president. It was for this reason that the applicants
sought the
interdict against him. The interdict was granted by Mngqibisa-Thusi J
on the 27 February 2014 and reads as follows:
". . . a provisional
order in terms of prayers 1 to 4 of the notice of motion dated 13
March 2012 are granted against the first
respondent with return day
29 April 2014:
1. The respondents are
prohibited from representing in any manner whatsoever to any, person,
entity, body or sponsor whomsoever
that they represent the applicant
or the South African Rugby League (hereafter "the SAR).
2. The respondents are
prohibited from
2.1.
alleging that they are representing the applicant on the SARL in any
official capacity such as chairman and/or any office bearer
and/or
official of the applicant or the SARL referred above;
2.2.
Alleging that they have any authority to act on behalf of the
applicant or the SARL;
2.3.
Contacting and/or in any way interfering in the applicant's
negotiations with SASCOC;
2.4.
Contacting SASCOC or the Rugby League International Federation.
3. The respondents,
jointly and severally are ordered to provide the following property
to the applicant:
3.1.
The financial statements of the applicant's predecessor in title for
2009, 2010, and 2011 financial years;
3.2.
All minutes of meetings of the applicant for 2009 to 2011,
correspondence and other documents that belongs to the applicant
and/or its predecessor in title;
3.3.
All trophies, including plate trophies and memorabilia that are
property of the applicant.
4. The first respondent
pays the costs of the application on an attorney and client scale."
[7]
The return date for the above provisional order was 31 July 2014 and
served before Lephoko AJ. In terms of that judgment, made
on 30
September 2014, the interim order was discharged. In discharging the
interim order the Learned Judge found that, that order
was
null
and void
as against the second to the eleventh respondents for
the reason that the application that gave rise to the order was not
served
on those respondents. Although the order is silent as to the
first respondent it would appear, when regard is had to what
subsequently
happened in the leave to appeal, that the rule nisi was
not discharged as concerning the respondent.
[8]
Following the above order applicant filed leave to appeal which
served before Lephoko AJ on 12 December 2014. The leave to appeal
to
the full bench of this court was granted and the
"rule nisi
granted on 27 February 2014 is extended to the date of the
hearing of the appeal."
[9]
It is apparent from the papers that the applicant has delayed in the
prosecution of its appeal. The reason for the delay according
to the
deponent to the founding affidavit was due to the problems related to
the production of the record. The applicant has in
this respect
applied for condonation for the late filing of the record of the
appeal. That application is not before this court.
It is an
application to be determined by the appeal court.
The
applicant's case
[10]
The present application arises from the lengthy email which the
respondent addressed to Mr Baiteiri of the RILF. The email
reads as
follows:
"Subject: South
African Rugby League (Established 1988/9) - Players notification of
grievance and intention to protest action
- URGENT
ATT: Mr Tas Baitieri -
Rugby League lnternation Federation - Development Manager
Note: Copied to all South
African League (iEstablished 1988) Board members as well - Private
and confidential
Dear Tas,
Since we last spoke the
situation has deteriorated and urgent attention will be required to
the facts stated in this correspondence,
and the attachment.
Recently we have
experienced players from the faction side registering with us to play
matches with our teams, because they complained
that matches gets
cancelled and that they do get match time.
Officials are also
contacting us and some are joining us.
It so happened that
players exchanged views and ideas and in the process the so
called "trials" which were held in
Pretoria (by the Faction
Group), to select a national side to play against Lebanon and Nuie
caused serious unhappiness amongst
the players registered with South
African Rugby League (Estbalished 1988/9), and you will find the
result of that in the attachment.
I have received these
documents last Saturday after our Rhino Trophy and Presidents cup
finals.
The contents of this
attachment cannot be ignored - the call is out to that protest action
will take place if the Lebanon and Nuie
sides play in South Africa -
for that matter all international competition will be affected till
there is unity in the Rugby League
sport in South Africa.
I have obtained legal
advice in this regard and the recommendation was to report the matter
to the Minister of Sport without delay
- as it may cause
international incidents which will not be accepted - also things can
turn ugly if just ignored.
The attachment request
that I reply to this Notification of Grievance by tomorrow 12th
October 2016 and I have undertaken to do
so.
At this stage some listed
parties were informed either by letter or telephone - priority was
given to the minister of Sport as mentioned
above - the only party
which I am unable to reach is the Nuie Representatives and I call on
you to assist in this matter - or provide
me with some contact
details.
Although there was no
request to involve RLIF I feel that you should know about the
situation as Rugby League in South Africa is
at the cross roads at
this stage.
The bottom line is:
No International
competition for South Africa till there is unity in South African
Rugby League and equal opportunities exist for
all players - a
faction cannot represent South Africa any longer.
Effectively it means:
Stop the Lebanon and Nuie visits
This is a further request
that RLIF INTERVENE IN THIS ONGOING FEUD in South Africa.
At this stage I have
requested all officials and players of South African Rugby League
(Established 1988/9) not to engage with the
press till I give them
feedback tomorrow.
I am awaiting your early
I
urgent reply on this matter."
[11]
Following the above email Mr Baiteiri wrote to Mr Botha and stated
the following:
"Kobus ... Good day
... And hope you are well ... Unfortunately I need to bring to your
attention the details, provided below
and also in the attachment. The
details provided are concerning and before moving to the next level
of intervention, I'd appreciate
some clarity by you and your fellow
board members on the grievance notice and selection process of the
upcoming tour by Niue. Added
is the issue surrounding the lawful body
to control the game in South Africa following the court challenges at
the time of Chris
Botes.
David Collier has also
received a copy of the same email and we'd appreciate your position
and reply on the allegations mentioned.
Thank you for your
comprehension in this matter and I trust the Niue matches will not be
prejudiced by this ... after all the hard
work and effort by both
groups."
[12]
On 28 October 2016 the respondent's attorneys addressed the letter to
the applicant contending that the applicant has abandoned
the appeal,
apparently because of the delay in its prosecution. It is further
contended in the same letter that the applicant no
longer enjoys the
protection provided for under the order made on 27 February 2014.
[13]
The respondent further contended that because the
rule nisi
was
discharged there existed no order to be in contempt of.
Legal
principles governing contempt
The
law governing consideration of a contempt of court application is
summarised in
Lujabe
v
Maruatona,
[1]
in
the following terms:
"[6] The broad
approach to adopt when dealing with the issue of contempt of Court
order or judgment is well established in
our law. The critical and
starting point in contempt proceedings is whether there exists a
Court order which is the subject matter
of the complaint concerning
non-compliance. The other aspects of the inquiry into the contempt
proceedings entail determining whether
the respondent was served with
or notified of the order in question. Once these procedural aspects
have been satisfied, the further
evidentiary burden is on the
applicant to prove beyond reasonable doubt that the failure to comply
with the order was wilful and
mala fide on the part of the
respondent. In general, willfulness will be inferred once the
applicant has established the failure
by the respondent to comply
with a Court order.
[7]
It is trite that once the applicant has made out a case of
willfulness and ma/a
fide
of the
non-compliance with the order, the respondent bears the onus of
showing on the balance of probabilities that non-compliance
was not
willful or ma/a
fide.
The
general test to apply in considering contempt applications is set out
in out in
Fakie
No v CCII Systems (Pty) Ltd
,
[2]
in the following terms:
'The test for when
obedience 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 an infraction. Even a refusal
to comply that this
objectively unreasonable may be bona fide (though unreasonableness
could evidence lack of good faith).'
[8]
After setting out the above test the Court in Fakie's case proceeded
later in its judgment to summarise the general principles
governing
the approach to adopt when dealing with contempt as follows:
'1. 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.
2. The respondent in such
proceedings is not an 'accused person', but is entitled to analogous
protection is appropriate to motion
proceedings.
3. In particular, the
applicant must prove the requisites of contempt (the order; service
or notice; non-compliance; and mala fides)
beyond reasonable doubt.
4. But, once the
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidentiary 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.
5. A declaratory and
other appropriate remedies remain available to a civil applicant on
proof on the balance of probabilities.'
Evaluation
[14]
In my view the issue of whether or not the appeal has lapsed is an
issue, as stated earlier in this judgment, to be determined
by the
full bench on appeal and not this court. The same applies to the
alleged non-compliance with the rules in as far as the
appeal is
concerned. It would appear at face value that, that issue will turn
on whether the appeal court grants or refuses the
condonation
application filed by the applicant.
[15]
The respondent has raised a number of points in his opposition to
this application. The first point raised is that there is
no court
order upon which the applicant could base its complaint of contempt
because the rule nisi was discharged by Lephoko AJ
on 30 September
2014.
[16]
It is apparent from the reading of the judgment of the Learned Judge
and as stated earlier, the
rule nisi
was discharged in
relation to the other respondents and not the respondent.
[17]
The respondent criticises the order made by the Learned Judge in
relation to the leave to appeal. It is, however, not his defence
that
he was confused and did not appreciate that the order was discharged
only in relation to all the other respondents and not
him.
[18]
The respondent also raised the issue of failure by the applicant to
join the other respondents cited in the initial application
in this
matter. His contention in this respect is that they have a
substantial interest in the matter and further that they would
be
prejudiced if not included in the present matter. This argument bears
no merit because the outcome of these proceedings has
no bearing on
the outcome of the appeal and the outcome of this matter will have no
bearing on the other respondents. The only
person accused of
contravening the court order is the respondent. There is no evidence
that any of the other respondents in the
initial application has
contravened the order. In any case, they could not be guilty of
contempt because as there is no order against
them, the rule nisi
against them was discharged. In any case, the test in determining an
appeal is different to that of determining
contempt of court
application. It should also be pointed out that in general contempt
of court applications are generally directed
at an individual who has
failed to comply with the order or has failed to cause an entity to
comply with the court order. It is
only the respondent who is alleged
to have contravened the court order by addressing the email in
question to RLIF.
[19]
Another defense raised by the respondent is that he did not willfully
disobey the order but that in acting as he did, he did
so on the
basis of the advice that the appeal of the applicant has lapsed.
This, it would appear to me to be an afterthought that
came about as
the respondent was called upon to account for his conduct. In this
respect, he does not attach any supporting affidavit
from his
attorneys or any person who may have given him such an advice. It is
also strange that his attorneys of record do not
mention in their
letter of 28 October 2016 that they had advised him that he was
entitled to act as he did because as he alleges,
the appeal had
lapsed. This is in the context where they were responding to the
letter of the attorneys of record of the applicant
dated 18 October
2016. They said nothing about having advised the respondent that he
was entitled to ignore the order for the reason
that he gave. The
letter to which his attorneys of record were responding to, amongst
other things, spells out the conduct of the
respondent which the
applicant was complaining about.
[20]
The argument that the respondent was representing South African Rugby
League (Established 1988/9) when he communicated with
Baiteiri is
also not sustainable. There is nowhere in the email where he says
that he is communicating on behalf of that entity.
Of course, the
email states the subject as "South African Rugby League
(Established 1988/9)." It should be noted that,
even if this was
the case, the order prohibits him from communicating specifically
with RILF on matters concerning South African
Rugby League.
[21]
I have already indicated somewhere else in this judgment that it is
not the defence of the respondent that he did not understand
the
contents of the order. To emphasise the order does not deal only with
the prohibition of purporting to represent SARLA but
deals broadly
with the South African Rugby League. There seem to be no doubt, in my
view, that the email, which is clearly deliberate
in its essence,
deals directly with issues related the Rugby League in South Africa,
a subject matter which the court order says
the respondent, in any
capacity he so wish, should refrain engaging in with the entities
referred to in the order and those include
RILF.
Findings
[22]
In light of the above analysis I find that, in sending the email in
question to Baiteiri, the respondent did so deliberately,
with
ma/a
fide
intention of undermining and disobeying the order made by
this court.
[23]
It is clear that the order deals with issues related to South African
Rugby League which covers South African Rugby League
(est 1988/89).
The order was, in light of the judgment Lephoko AJ directed at the
respondent and any other person. Similarly, the
order was not
directed at the South African Rugby League (est 1988/89) as an entity
but against the respondent as an individual.
[24]
The issue of the delay in the prosecution of the appeal is a matter
to be dealt with the full bench.
[25]
As concerning the issue of urgency, it is generally accepted that
contempt proceedings need to be dealt with on an urgent basis.
The
underlying consideration for this approach is set out in
Victoria
Park Ratepayers Association v Greyvenouw
CC,
[3]
where the court held that:
"I would add that it
is not only the object of punishing a respondent to compel him or her
to obey an order that renders contempt
proceedings urgent: the public
interest in the administration of justice and the vindication of the
Constitution also render the
ongoing failure or refusal to obey an
order a matter of urgency. This, in my view, is the starting point:
all matters in which
an ongoing contempt of an order is brought to
the attention of a court must be dealt with as expeditiously as the
circumstances,
and the dictates of fairness, allow."
[26]
It is, therefore, my view based on the earlier discussion in this
judgment that the applicant has discharged its onus of showing
the
existence of a court order which the respondent is aware of but
deliberately failed and/ or refused to obey. The respondent
has, on
the other hand, failed to discharge his evidentiary burden of showing
that the non compliance with the order was not
deliberate or
malicious. I am however of the view that the period for committal
prayed for the applicant in its notice of motion
is too harsh and as
will appear in the order I have imposed a sanction which I believe is
fair and equitable in the circumstances.
[27]
I see no reason why costs should not follow the results. In the
circumstances of this case I have however not been persuaded
that it
would proper to impose punitive costs.
Order
[28]
In the premises the following order is made:
1. The requirements
pertaining to form and service are dispensed with and the matter is
treated as one of urgency in terms of rule
6 (12) of the Uniform
Rules of the Court.
2. It is declared that
the first respondent is in contempt of the order of the court handed
down by Mngqibisa-Thusi J on 27 February
2014.
3. The Respondent is
committed to prison for a period of 10 days, which committal is
suspended for a period of six months, on condition
that the
Respondent immediately complies with the court order mentioned in
paragraph 2 above.
4. Should the Respondent
fail to comply with the Court Order mentioned in paragraph 2 above
the Applicant is permitted to approach
this Court for an order to
have the Respondent committed to prison on the same papers,
supplemented where necessary.
5. The Respondent is pay
costs of the Applicant.
____________________
EM
Molahlehi
Acting
Judge of the South
Gauteng
High Court
APPEARANCES
APPLICANT:
Adv J A Venter.
Instructed
by Weavind & Weavind Attorneys.
RESPONDENT:
Instructed
by Ehlers Fakude Incorporated.
[1]
(35730/2012) [2013] ZAGPJHC 66 (15 April 2013)
[2]
[2006] ZASCA 52
2006 (4) SA 216
(O) at 220A-D
[3]
(511/03)
[2003] ZAECHC 19
April 2003.