About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1072
|
|
Lepelle Industrial and Mining Suppliers CC v Streaks Ahead Investment (Pty) Ltd and Others (76409/14) [2016] ZAGPPHC 1072 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
15/12/2016
CASE
NO: 76409/14
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
LEPELLE
INDUSTRIAL AND MINING SUPPLIERS
CC
Applicant
and
STREAKS
AHEAD INVESTMENT (PTY)
LTD
First
Respondent
SOROKA
FILLING STATION
CC
Second
Respondent
THE
MINISTER OF ENERGY
NATIONAL
GOVERNMENT
Third
Respondent
THE
CONTROLLER OF PETROLEUM
PRODUCTS
Fourth
Respondent
BA-PHALABORWA
LOCAL MUNICIPALITY
Fifth
Respondent
ERF
344 ONTWIKKELING (PTY)
LTD
Sixth
Respondent
THE
MEC DEPARTMENT OF ECONOMIC
DEVELOPMENT,
ENVIRONMENT AND
TOURISM
Seventh
Respondent
THE
MEC FOR LOCAL GOVERNMENT
AND
HOUSING, LIMPOPO
PROVINCE
Eighth
Respondent
REGISTRAR
OF
DEEDS
Ninth
Respondent
CHRIS
LODEWYK
ALBERTS
Tenth
Respondent
JUDGMENT
Bagwa
J
[1]
The applicant has brought this application on an urgent basis in
terms of Rule 6 (12) of the Uniform Rules of Court seeking
an order
declaring the second and tenth respondents to be in contempt of
court and directing them to comply with a judgment
of this court
handed down on 24 November 2016 under case number 76409/2014.
[2]
At the commencement of the proceedings the second and tenth
respondents brought an application for postponement on the basis
that
they had been given short notice by the applicant and that as a
result they had not had sufficient time to prepare their opposing
papers. This situation had been exarcerbated by the serving of
further affidavits on the applicants on the morning of the hearing.
[3]
The respondents submitted that those affidavits raised new matters
which their counsel needed to obtain instructions on. The
issues
addressed in the documents served pertained mainly to the second
respondent and the tenth respondent and the role the latter
had
played and was allegedly still playing in the activities of the
second respondent.
[4]
The applicant opposed the application for a postponement on the basis
that in its replying affidavit and in the further confirmatory
affidavit it was merely replying to or dealing with matters raised by
the respondents in their answering affidavit.
[5]
It was common cause that the tenth respondent had been a member of
the second respondent but had since resigned. The respondents
alleged
that he was no longer involved in the affairs of the second
respondent and that the second respondent is now owned by two
trusts.
The applicant, while not disputing the ownership by the trusts
alleged that the tenth respondent was a trustee of one of
the trusts
and that in that capacity he was equally liable for the acts or
ommissions of the second respondent.
[6]
After considering submissions by counsel I came to the conclusion
that the tenth respondent could not be denied the constitutional
right to respond particularly to the allegations made by the
applicant which he was disputing and that for that reason he was
entitled to a postponement. I considered that the case of the second
respondent was on a different footing in that it was aware
of the
judgment and that as such it had a case to meet and was not entitled
to a postponement.
[7]
The applicants had also brought an application for a costs order
de
bonis propriis
against the attorney for the second and tenth
respondent on the basis that his advice had led to the second
respondent not complying
with the court order. He was seperately
represented by counsel in that regard.
[8]
Counsel for the respondents' attorney submitted and I accepted that
with the postponement of the tenth respondent's case it
would also be
appropriate to postpone the application for a costs order against the
respondent's attorney whereupon I ruled that
the case against the
tenth respondent be postponed
sine die
together with the
application for costs
de bonis propriis
against the
respondent's attorney.
Urgency
[9]
The respondents whilst pursuing the application for a postponement
also challenged the bringing of the application on an urgent
basis.
[10]
Whilst it is trite that an applicant has to show good cause why the
time for bringing an application should be abridged and
why it could
not be afforded substantial redress in due course it is also true
that where an applicant brings an application to
compel compliance
with an order of court which has been legitimately obtained, this is
usually treated as a matter of urgency.
This is so because a litigant
is entitled to· a legitimate expectation that an order of
court will be complied with otherwise
the rule of law and the
administration of justice is put in jeopardy.
[11]
A similar matter was dealt with in
Protea Holdings v Wriwt and
Another
1978 (3) SA 865
(WLD) where the court pronounced as
follows:
"As one of the objects of
contempt proceedings is by punishing the guilty party to compel
performance of the order, it seems
to me that the element of urgency
would be satisfied if in fact it was shown that the respondents were
continuing to disregard
the order of 3 August 1977. If this be so,
the applicant is entitled, as a matter of urgency, to attempt to get
the respondents
to desist by the penalty referred to being imposed. I
therefore cannot agree with the submission under consideration made
on behalf
of the respondents and I turn to a consideration of whether
it has been shown that the respondents are in fact continuing to
commit
contempt of court, or at least a breach of the restraint ....
The applicant was justified in launching the application as a matter
of urgency."
[12]
In the present case the fact of non-compliance is not in dispute
though the respondents have raised some grounds for justification.
Whilst I shall deal with those grounds later in this judgment, I am
of the view that the present application was properly brought
in
terms of the provisions of Rule 6 (12) of the Uniform Rules of Court.
Background
[13]
The second respondent is the retailer which manages the filling
station and trades in petroleum products whilst the first respondent
is the party which transferred its site licence to the sixth
respondent. The latter is the owner of the shopping complex where
the
filling station is located.
[14]
Currently the second respondent is continuing to trade despite the
granting of a court order, prohibiting him to do so in the
interim.
The second respondent has not filed any application for leave to
appeal though it has indicated in writing that it will
do so in due
course and has through correspondence further indicated that as soon
as the application for leave is filed, the respondents
will take the
view that the order is suspended.
[15]
The applicant contends not only that the second respondent should
stop trading in terms of the court order but also that the
court
order is an interlocutory order that does not have the effect of a
final judgment and that it will therefore not be suspended
in the
event of any application for leave to appeal in terms of
section 18
(2) of the
Superior Courts Act, 10 of 2013
.
[16]
The applicant contends further that a definitive finding regarding
the question whether the order is an interlocutory order
not having
the effect of a final judgment, together with the question whether
the respondents are in contempt of court, will prevent
the second
respondent from further trading pending finalisation of the main
application. Prior to deciding that question however,
it is necessary
to decide the question whether the respondents are in contempt of the
court order.
Contempt
of Court
[17]
In
Fakie NO v CCII Systems (Pty) Ltd
2006 (4) SA 3226
SCA at
para 42 the following was stated:
"[42] To sum up:
(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; non-compliance; and wilfulness
and
ma/a tides) 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
ma/a
fide, contempt will have been established beyond
reasonable doubt.
(e)
A declarator and other
appropriate remedies remain available to
a
civil applicant on
proof on a balance of probabilities."
[18]
In
casu,
it is common cause that the respondents
received notice of the order and that they failed to obey the order.
The burden of proof
therefore rests on the respondents to show that
they did not act with willfulness or
mala fides.
The
Respondents Defences
[19]
The respondents submit that they failed to obey the court order
subsequent to legal advice.
[20]
By letter dated 25 November 2016 the applicant's attorneys wrote to
the respondents' attorneys as follows:
" Our client has advised us
that your client is still trading in petroleum products, despite and
in direct contempt of the
said judgment of his Lordship. We further
take note of the contents of your said letter and are instructed to
respond thereto as
follows:
1. There is nothing ambiguous or
difficult to understand about the said judgment;
2. The said judgment makes it very
clear that, inter alia, all retailing in petroleum products must
cease on site;
3. The judgment does ot provide any
delay in its implementation,
IT IS OF IMMEDIATE EFFECT!
4. Your clients blatant disregard
of this judgment is noted with disdain and concern;
5.
..........
6.
··········
7. ... . ......
8. If your client is currently
acting under your advice that he may ignore the said judgment, you
are informed that you will be
a party to your client's contempt of
Court;
9. All our client's rights are
reserved in the matter, including its rights to approach the Court on
an urgent basis to deal with
the contempt of Court by your client."
[21]
On 29 November 2016 the respondents' attorneys replied and stated
inter alia
as
follows:
"1.
..........
2. In the premises, the court order
concerned is the subject of an intended application for leave to
appeal and the operation and
execution of the decision will
consequently be suspended pending the decision of the application
concerned. In these circumstances,
and where acquiescence in the
decision may deprive our clients of the right to appeal, any failure
to comply with the order pending
the finalisation of the appeal
process cannot be said to be
mala fide
.
3. We do not intend to deal with
all the allegations contained in your letter under reply and reserve
the right to do so at any
appropriate time. We however record that
our clients are not acting in "direct contempt" of the
court order and do not
have "blatant disregard"
therefor. We precisely advised your client that our clients were
considering their position
to show our clients' bona tides in
seriously considering the judgment. We have certainly not advised our
clients that they may
ignore the judgment concerned, but have instead
advised them of their rights to apply for leave to appeal and the
other relevant
considerations in this regard, inter alia, as set out
above. Our clients are also clearly not ignoring the judgment, but is
instead
seeking leave to appeal it.
Yours faithfully
Gerhard Wagenaar Attorneys"
[22]
What is clear from the letter quoted above is that the respondents
equated compliance with the judgment with
"acquiescence"
to it. Needless to say the corollary to non-acquiescence is
non-compliance. Firstly, this is a rather disconcerting attitude from
the respondents' attorneys who are officers of this court, who ought
to know that judgments of this court are not given for a further
consideration by attorneys whether they need to be executed or not
especially where the time for execution is explicitly stated.
[23]
Secondly it is not clear to me how the second respondent could raise
as a defence against
mala fides,
the advice of attorneys who
have stated categorically that
" We have certainly not
advised our clients that they may ignore the judgment concerned' .
The positions taken by the attorney and client seem to be
contradictory. What this implies if logic is to prevail is that the
decision
to ignore the judgment was the second respondent's own
decision not based on legal advice. The legal route advised by the
attorneys
to apply for leave to appeal to try and interfere with the
consequences of the judgment was the one that the second respondent
chose to ignore until the launching and hearing of the present
application.
[24]
Acquiescence in the judgment under the principle of peremption of
appeals is a hollow defence in the circumstances as complying
with
the judgment with reservation of rights pertaining to an application
for leave to appeal and disavowing acquiescence in a
letter, would
have been sufficient to safeguard the respondents' rights. The
peremption of appeal principle is a principle which
is derived from
common law and the respondents' attorneys ought to be alive to the
fact that the rights of the parties with regard
to judgments and
appeals in the current constitutional dispensation are administered
in terms of the
Superior Courts Act. To
hold otherwise would cause
chaos in the administration of justice and the management of the many
judgments which ensue from this
court on a daily basis.
[25]
In a rather feeble attempt to further defend the stance taken by the
second respondent, the respondent's attorneys have referred
to a
"practice"
not to comply with the court order whilst
considering or drafting an application for leave to appeal. The
attorneys engaged in this
"practice"
despite being
admonished by the applicant's attorneys to desist from doing so.
There is no evidence of such a practice and there
is no authority
that such a practice exists. It is in my view a mere obfuscation.
[26]
In
Holder v Rex
1930 NPD 63
at p64 the following is stated:
"Head note
The appellant was ordered by
a
Magistrate, under
section 3
of Act 10, 1896 (The Deserted Wives'
Protection Act), to pay to his wife
a
sum of
£5
per
month. After making one monthly payment, he was advised by his
solicitor that, as he
intended instituting an action for
restitution of conjugal rights, he need make no further payment under
the Magistrate's order.
In consequence of that advice, he withheld
payment though he knew of the existence of the order and was able to
comply with it.
He was convicted under section 101 of the
Magistrate's Courts Act, of wilfully disobeying or neglecting to
comply with the Magistrate's
order. Held, dismissing an appeal, that
the appellant was liable.
[27]
Further, the contempt issue is dealt with in Herbstein and Van Winsen
-
Civil
Practice of the High Courts and Supreme Court of
Appeal of South Africa
(Fifth Edition) p1110 as follows:
" The Respondent is not,
however, entitled to refuse to obey a court order served on him on
the ground that there was not an
opportunity of consulting with an
attorney and may be held to have defied the order intentionally
notwithstanding that the attorney
had advised non-compliance for the
time being."
See
Culverwell v Beira
1992 (4)
SA 490
(W) at 493H
[28]
There is no basis whatsoever, legal or otherwise upon which a
litigant can argue that it may ignore a specific
and
explicit court order pending consideration of an
application for leave to appeal or the drafting thereof. If the
attorney had not given that advice, the second respondent cannot but
be in contempt of court beyond a reasonable doubt.
The
Sixth Respondent
[29]
Despite the fact that the applicants did not pursue this application
against the sixth repsondent, he was represented by counsel
who
submitted that the prayer for a declaratory order in paragraph 6 of
the Notice of Motion should not be granted as originally
formulated
with reference to
section 16
(1) (a) of the
Superior Courts Act and
for non appealability prior to an application for leave to appeal
being filed. This legal point was conceded by the applicant and
the
matter was not taken any further. Counsel for the second respondent
however still persisted with his opposition to the granting
of the
declaratory order in any form.
Declaratory
Order
[30]
In its application the applicant has also made reference in its
founding affidavit for the need to clarify the nature of the
order
made by means of a declarator in light of the express intention to
file an application for leave to appeal. This in my view
may be
totologous bearing in mind the wording of the order itself. The
application for an interim interdict was brought in two
parts namely,
Part A and Part 8.
[31]
The order thus granted reads as follows:
"ORDER:
Having heard counsel for both
parties, the following order is granted in terms of Part A of the
Notice of Motion
60.1. That a temporary interdict be
granted in favour of the applicant against the first, second and
sixth respondents in the following
terms:
60.1.1. The first, second and
sixth respondents are prohibited from taking any further steps
regarding the construction of
a filling station on Erf 3465, extent
3. 742ha situated in Township Namakgale B, district of Namakgale held
by the sixth
respondent under TG12564/2013; and
60.1.2. The first, second and sixth
respondents are prohibited from any trading activities and/or retail
activities of petroleum
products of any nature whatsoever on Erf
3465, extent 3.3742ha situated in Township Namakgale B district of
Namakgale, held by
the sixth respondent under TG12564.2013.
60.2. The abovementioned temporary
interdict shall be valid and binding on all parties to this
application pending:
60.2.1. the applicant's review
application against the decision of the third respondent on appeal to
grant a site licence on Erf
3465 Namakgale B Township under licence
application F/201310210510001, in respect of first respondent and a
new retail licence
under application F/201310210510002;
60.2.2. the applicant's internal
appeal that has been lodged with the fourth respondent pertaining to
the transfer of the site licence
in respect of Erf 3465 Namakgale B
Township, from the first respondent to the sixth respondent;
60.2.3.
any review application that may follow from the decision of the
fourth respondent pertaining to the applicant's internal
appeal filed
as referred to in paragraph 60.2.2 above;
60.2.4.
final relief in terms of Part B of this application.
60.3. Costs of Part A of this
application, including the costs of three counsel."
[32]
The applicant seeks a declaration regarding not only the nature of
the order but also an order regarding the appealability
thereof. I do
not consider it appropriate to make any declaration regarding
appealability prior to an application for leave to
appeal being
lodged with the Registrar of the High Court. That would be tantamount
to anticipating a matter that has not yet been
placed before me. I,
however, consider that I am in a position to make a declarator
regarding a matter which is evident from the
order I made.
[33]
What is apparent from the order quoted above is that it is an order
regarding Part A only of the application and that it is
made pending
the outcome in Part B of the application. What this means is that in
the event of the applicant not being successful
in the review
application, the order made in Part A may be reversed by this court.
The order made does not therefore finally dispose
of the issues
between the parties. It is therefore in the nature of an
interlocutory order as contemplated in
section 18
(2) of the
Superior
Courts Act.
[34
]
In the result, I make the following order:
ORDER:
Having
heard counsel for both parties, and having considered the documents
filed of record, the following order is granted:
34.1. That it be declared that the
second respondent is in contempt of court.
34.2. The second respondent is
directed to comply with the judgment of His Lordship Mr Justice Baqwa
handed down on 24 November
2016 under case number 76409/2014, with
immediate effect.
34.3. In the event that the second
respondent should fail to comply with the above court order
immediately, the duly appointed Sheriff
of the relevant area,
assisted by the South African Police Service are directed and
requested to attend the filling station
situated at Erf 3465 in the
township of Namakgale 8, District of Namakgale, for the purpose of
ensuring the compliance of the second
respondent with the aforesaid
court order, by shutting down the trading and/or retailing and/or
selling of petroleum products on
said Erf 3465.
34.4. A declaratory order that the
interlocutory order granted by His Lordship Mr Justice Baqwa referred
to above, is not a
"decision" ,
and that it does not
have the effect of a final judgment, it is an interlocutory order as
meant in
section 18
(2) of the
Superior Courts Act 10 of 2013
.
34.5. The second respondent is ordered
to pay the costs of this application on an attorney and client scale.
34.6. The applicant is ordered to pay
the costs of the sixth respondent.
__________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
o
n:
13 December 2016
Delivered
on
:
15 December 2016
For
the Applicant:
Advocate R. Du Plessis S.C
Advocate E. van As
Advocate H. Kelaotswe
Instructed
b
y:
A. Kock & Associates Inc.
For
the 1
st
, 2
nd
and
10
th
Respondents:
Advocate S. Wagener S.C.
Instructed
b
y:
Gerhard Wagenaar Attorneys
For
the 6
th
Respondents:
Advocate D. van den Bogert
Instructed
b
y:
Jacques Classen Attorneys
For
the 10
th
Respondent's
Attorney:
Advocate J. C.
van Eeden