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[2015] ZAGPPHC 1081
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Scholtz v J Frances and Seuns Klerksdorp (Pty) Ltd and Another; In re: J Frances and Seuns Klerksdorp (Pty) Ltd v Scholtz and Another (38685/2010) [2015] ZAGPPHC 1081 (16 July 2015)
..
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE
NUMBER: 38685/2010
In the
matter between:
WILHELM
PIETER
SCHOLTZ
APPLICANT
and
J
FRANCES & SEUNS KLERKSDORP (PTY)
LTD
FIRST RESPONDENT
JACQUES
HENDRIK JANSEN
SECOND RESPONDENT
In
re:
J
FRANCES
&
SEUNS
KLERKSDORP (PTY) LTD
APPLICANT
and
WILHELM
PIETER
SCHOLTZ
FIRST RESPONDENT
JACQUES
HENDRIK
JANSEN
SECOND
RESPONDENT
JUDGMENT
A.J.
LOUW AJ
[1] The
Applicant in this application applies for the rescission of a
judgment that was granted against him by this Court on the
9
th
December 2011. In these proceedings (hereinafter called "the
rescission application") there was no appearance for
the Second
Respondent. Before me the Applicant was represented by Ms Da Rocha
and the First Respondent was represented by Mr Davis
SC.
[2] I
will hereinfurther refer to the parties by name. Over the past 5
years since 2010 there were more than one application brought
under
this case number and the parties featuring as Applicants and
Respondents changed from time to time. I will accordingly refer
hereinfurther to the Applicant at the inception of the proceedings in
2010, being J. Frances & Seuns Klerksdorp (Pty) Ltd as
"Frances".
To Wilhelm Pieter Scholtz, the present Applicant for rescission of
judgment, Iwill refer as "Scholtz".
To Jacques Hendrik
Jansen, the Second Respondent in the rescission application, I will
refer as "Jansen". To the professional
company wherein
Scholtz and Jansen practised as attorneys and directors, being
Jansens lngelyf I will hereinfurther refer
to as "Jansens
Incorporated". A further party in these proceedings (but not
involved in the rescission application) is
one Marius Dreyer, the
client of Jansens Incorporated and to him I will refer as "Dreyer''.
Jansens Incorporated also does
not feature as a party in the
rescission application.
[3] In
summary: Scholtz applies for rescission of the default judgment
granted against him by Goodey, AJ on the 9
th
December
2011. In the proceedings that resulted in the default judgment ("the
contempt application") Scholtz was cited
as the First
Respondent, Frances as the Applicant and Jansen as the Second
Respondent.
[4] On 9
December 2011 Goodey, AJ in this Court granted the following order
against Scholtz:
"NA
AANHOOR van die regsverteenwoordiger(s) namens die party(e) en na
deurlees van die kennisgewing van mosie en ander stukke
geliasseer
WORD
GELAS
1.
DAT
die
Eerste
Respondente
(sic)
bevind
word in
minagting
te
wees van
'n
bevel
van hierdie Hof in saak nr: 38685/2010 gedateer
2
Julie 2010.
2.
DAT die Eerste Respondente
(sic)
gevonnis word tot gevangesetting vir 'n tydperk van 90 dae na
aanleiding van voormelde minagtig, welke gevangesetting opgeskort
word op voorwaarde dat die gemelde Respondente
(sic)
binne
7
date
(sic)
na betekening
op hulle van hierdie bevel aan paragraaf 3 infra voldoen
3.
DAT
die
Eerste
Respondente
(sic)
gesamentlik
en afsonderlik
persoonlik
die
bedrag
van R400 524,
75
tesame
met rente
daarop teen
15,
5%
per jaar
vanaf 30 Junie
2010 tot op datum
van
betaling daarvan aan die Applikant se prokureur van rekord oorbetaa/.
4.
DAT
die
Eerste
Respondente
(sic)
om
gesamentlik
en
afsonderlik
die
Applikant se
kostes
in
saak
nr:
386851201O
en
3542812010
te betaal
op
'n
skaal
soos
tussen
prokureur
en
klient
5.
DAT
teen
die
Tweede
Respondente
(sic)
sine
die
uitgestel
word.
6.
Koste word voorbehou."
[5]
As can be seen from the order, the application for the same relief
against
Jansen was
postponed
sine
die
on 9
December
2011.
[6]
Scholtz, under a notice of motion dated the 20
th
June 2013, that is some
18
months
later,
applied
for
the
rescission
of
the
abovementioned order. For
sake
of
brevity
I refer to
the
order
of
the 9
th
December
2011
as
quoted
above
as
"the
9
December
2011
order".
[7] In
terms of the 9 December 2011 order Scholtz was declared to be in
contempt of an order of this court dated 2 July 2010. As
the 2 July
2010 order is important for purposes of considering Scholtz'
rescission application, I quote the full contents thereof:
"1.
Oat
hangende die finalisering van die hofverrigtinge onder
saak nr:
3081/10
in
die
Landdroshof
van
Potchefstroom
("die
hofverrigtinge”) 'n
bevel
nisi
uitgereik
word
ingevo/ge waarvan:
1.2
Die Tweede
Respondent
verbied word
om
die
geldbedrag of enige gedeelte daarvan, as fooie of fondse
verskuldig deur Eerste Respondent
aan
die
Tweede
Respondent:
1.2.1
te
debiteer; en/of
1.2.2
dit
oor
te
plaas
na
die
besigheids
rekening(e) van
die Tweede
Respondent om dit as fooie te
neem; en/of
1.2.3
dit
vir
enige
ander
doe/
te
gebruik
en/of
aan
te
wend, waardeur
die
geldbedrag verminder
en/of
verlore
raak;
1.3
Die Tweede Respondent gelas word, om indien daar enige uitbetalings
gemaak is en/of aanwending was van die geldbedrag soos gehou
op die
trust en/of besigheids rekening(e) sedert 29 Junie 2010,
volledige besonderhede te verskaf van:
1.3.1
1
die
presiese
datum
en
tyd
van
elke
uitbetaling
en/of
aanwending daarvan;
1.3.2
die
presiese
geldsom
van elke
uitbetaling en/of aanwending daarvan;
1.3.3
die
volledige besonderhede
van die persoon
of
entiteit aan
wie hierdie
betaling
en/of aanwending
gemaak
is, met insluiting
van die voile name en van plus adres van die
persoon
of
entiteit;
1.3.4
die spesifieke bank aan wie hierdie oorbetaling
gemaak is, die adres
van die bank
en dorp of stad waar hierdie bank gelee is, die
takkode
van die bank, die spesifieke
bankrekening nommer,
asook die
houer en/of begunstigde
van
die
rekening,
waarin
hierdie
betaling gemaak is;
1.4
Die
Tweede
Respondent
gelas
word
om
die
besonderhede vervat in paragraaf
1.3
(met insluiting van die subparagrawe), skriftelik weer
te
gee
per faks aan die
Applikant se
prokureur
teen nie
later nie as 09h00 op Saterdag 3
Julie 2010, by faksnommers
[0.....]
(Pretoria
Prokureurs)
en
[0.....](Klerksdorp
Prokureurs);
1.5
Die
Balju
van
die
Hof
gemagtig word
om
beslag
te
le
op
die
fondse gehou
in die rekening(e)
soos
geidentifiseer
uit die skriftelike besonderhede van 1.4, insoverre
dit gehou word deur die
Eerste
en/of
Tweede
Respondente,
altematiewelik
ten behoewe
van
die
Eerste
en/of
Tweede
Respondente;
1.6
Die
Balju van
die
Hof
gemagtig word
om
die
beslaglegging vermeld in
paragraaf
1.
5
uit te voer deur die hofbevel deur te faks
aan
die
betrokke
instelling
waar
hierdie
fondse
gehou
word;
1.7
Die Eerste en Tweede Respondente verbied word
om
hangende die voldoening
van
paragrawe
1.3 tot
1.6,
enige
van die fondse
gehou
en/of
verkry
van die geldbedrag,
te
vervreem
of
weg
te maak of
bewyse
daarmee
te
handel waardeur
die
Applikant benadeel
word;
2.
Oat
die
bevele
verleen
ingevolge
paragraaf
1.1
tot 1.
7
(met
insluiting
van die sub
paragrawe)
tussentydse
werking hou
hangende die finalisering van die keerdatum.'
3.
Oat die koste van die aansoek sal oorstaan vir beregting op die
keerdatum.
4.
Oat
verlof
aan
die
Applikant verleen word
om
die
Hof
op
dieselfde stukke te nader
vir
toepaslike regshulp fer beskerrning
van
die geldbedrag,
nadat
die
inligting
vanaf die
Tweede
Respondent bekom
is
soos
uiteengesit
in
paragraaf 1.3.
5.
Oat
die
Eerste,
Tweede
en Derde Respondente, opgeroep word
om
redes
te
kom
aanvoer,
indien
enige,
op 28 Julie
2010
om
10h00,
waarom die
voor/opige bevel hierbo verleen ingevolge
paragraaf
1
nie
bekragtig
moet
word
nie."
To this
order I will hereinfurther refer to as "the
2
July
2010
order".
[8] The
2
July
2010
order was enrolled for hearing
on the court roll of
28
July
2010.
A
final order in the following terms was made on the
29th
July
2010:
"1.
Die Balju Potchefstroom word gelas en gemagtig
om
die fondse waarop beslaggele is op 5 Julie 2010 in die
Tweede Respondent se besigheidsrekening te ABSA met tjeknommer
[4.....] onmiddellik
oor te betaal aan die Applikant se trustrekening
gehou te Eerste Nasionale Bank Klerksdorp met
rekeningnommer
[6.....].
2.
Die
Balju
word
gemagtig
om
alle
nodige
dokumente
by
enige finansiele
instelling
te
onderteken
wat
nodig
mag
wees
om
effek
te
gee
aan
paragraaf
1.
3.
Die
Eerste Respondent
en Tweede
Respondent erken
nie
dat
die
fondse ongemagtig uit
die
Applikant se tjekrekening gehou te
die
Klerksdorp
Tak van die Derde Respondent
onttrek
is en in die
Tweede Respondent
se
trustrekening
gedeponeer
is nie.
Die Eerste en
Tweede Respondente laat ook noteer indien hulle sou slaag met die
Appel teen die
Agbare
Landdros
Windell
se
uitspraak
gelewer
op
7
Julie
2010,
hulle,
met
kennis
aan
die
Applikant, die
nodige
regstappe
sal
neem
om
op
die
fondse
beslag
te
le.
4.
Die
Eerste
Respondent
betaal
die Applikant
se koste,
wat die voorbehoue koste
van
2 Julie
2010 insluit
op
'n geopponeerde skaal.
5.
Hiema
sal
die
Applikant
geen
verdere
eise
teen
die
Tweede
Respondent he nie."
To this
order I will hereinfurther refer to as "the 29 July 2010
order''. In the 29 July 2010 order as well as in the 2 July
2010
order any reference to "Applicant" is a reference to
Frances, any reference to "First Respondent" is a
reference
to Dreyer, any reference to "Second Respondent" is a
reference to Jansens lngelyf and any reference to "Third
Respondent" is a reference to the First National Bank Limited.
[9]
The
amount
of
money
that is
the subject of
the
2
July
2010
order and
the
29 July 2010
order, is the sum of R400 524.65. This amount was unlawfully
transferred from the fresh produce agent trust account
of Frances to
the trust account of Jansens Incorporated as a result of a
Potchefstroom Magistrate's Court order. That Magistrate's
Court order
was subsequently set aside. To this day the R400 524.65 has not been
paid, and the precise particulars of how it was
spent by Jansens
Incorporated, whereof Scholtz and Jansen were the only directors, has
not been established. This is so despite
the 2 July 2010 order.
[10]
Dreyer did not authorise the payment and
Dreyer
did not receive one
cent of the R400 524.65
relevant herein. It is common cause that the
R400
524.65 were
transferred from
the
trust account of
Jansens
Incorporated
into
Jansens
lncorporated's
business
account
where
it
allegedly
mixed
with
other
monies
in
its
business
account
and
wherefrom
Scholtz
and Jansen paid their debit orders and practice
expenses.
I
will
return to
this
aspect
of the
matter
hereinlater.
Suffice
to
say for the
moment, no
exposition was ever given as to how precisely the trust funds
emanating from the fresh produce agent trust account of
Frances were
spent by Scholtz and Jansen in their professional company Jansens
Incorporated. This is so despite prayer 1.3 of the
2 July 2010 order.
As Frances was not repossessed with its R400 524.65 a further order
under this case number was granted on 2
September 2011 by Bredenkamp
AJ. This order (hereafter referred to as "the 2 September 2011
order") against Dreyer as
well as Jansens Incorporated reads as
follows:
"1.
Dat dit verklaar word dat die "magtiging" van die Eerste
Respondent
(Dreyer)
aan die Tweede Respondent
(Jansens
Incorporated)
om
die bedrag van R400 524.65 na verwys in die pleitstukke
as ''fooie" te kan gebruik en/of aan te wend asook die Tweede
Respondent
(Jansens
Incorporated)
se sodanige aanwending nietig verklaar en
tersyde gestel word;
2.
Dat die
Tweede Respondent
(Jansens Incorporated)
gelas
word
om
onmiddellik
by
betekening
op
hulle
van
hierdie
bevel
die bedrag van
R400
524.65
oor
te
betaal
aan
die
Derde
Respondent
(First National Bank Limited)
se Klerksdorp tak tot
krediet van die
Applikant
(Frances)
se
trustrekening
met
rekeningnommer
[6.....];
3.
Dat, by die Tweede Respondent (Jansens Incorporated)
se versuim om gevolg te gee aan
hierdie
bevel, die Derde
Respondent
(First National Bank
Limited)
en die Balju
van hierdie
hot gelas
en
gemagtig word
om
alle
stappe
nodig
te
neem
ten einde toe te
sien tot voonnelde
oorbetaling;
4.
Die
Eerste
(Dreyer)
en
Tweede
Respondente
(Jansens Incorporated)
word gesamentlik
en afsonderlik
gelas
om
die koste van
hierdie aansoek te
betaa/
op
die
skaal van
prokureur en klient."
[11]
When the
2
September
2011
order
did not produce any satisfactory results for Frances, the contempt
application was issued against Scholtz personally and Jansen
personally by Frances. The contempt application is dated the 7
th
November
2011
and was issued on the 9
th
November
2011.
The contempt application was
served personally on Scholtz on the
22nd
November
2011.
Scholtz then explains in paragraph
12
of the founding affidavit of the rescission application that he,
through his attorneys of record, delivered a notice of intention
to
defend to the attorneys of record of Frances on the
2nd
December
2011.
It was filed at court on the 5
th
December
2011.
[12]
Clearly the notice of intention to defend did not come to the notice
of the attorneys of record of Frances or the court as the
9 December
order was granted. During argument before me, Mr Davis SC, who also
appeared on the 9
th
December
2011
when the 9 December
2011
order was granted, confirmed that neither he nor
his attorney had any knowledge of the notice of intention to defend.
That a
bona fide
mistake occurred here is confirmed by the
fact that Jansen also filed a notice of intention to defend, that was
indeed brought to
the attention of my brother Goodey AJ. The contempt
application against Jansen was postponed
sine die
as is
evident from the 9 December
2011
order.
[13]
In due course an order for payment of the
R400 524.75
was granted against Jansen by Diedericks AJ on the
4th
June
2012.
At that time the relief for
declaration that Jansen is in contempt of the order of
2
July
2010
and imprisonment, in similar
terms as are contained in prayers 1 and 2 of the 9 December
2011
order, were postponed. That relief was eventually granted in
favour of Frances against Jansen by Strydom AJ on the 3rc1 May
2013.
That order is not available in the court file and the judgment
thereof is also not available. I add that the affidavits filed in
opposition and reply to the opposing affidavit of Jansen in those
proceedings are also not in the court file.
[14]
Whilst discussing documentation not available, it is necessary
to point out that Scholtz apparently did not attach any of the
annexures
to the rescission application. I accordingly have not had
sight of the correspondence referred to in the founding affidavit of
the application for rescission of judgment. In addition the Heads of
Argument filed on behalf of Scholtz on the
6th
February
2015
did not find its way to the court file. At
my request Adv Da Rocha handed the Heads of Argument up when the
matter was called before
me. The various court orders referred to in
the rescission application are available in the court file (with the
exclusion of the
judgment and order of Strydom AJ of
3
May
2013).
The correspondence are
discussed in the founding affidavit of Scholtz and the absence
thereof did not detrimentally influence the
consideration of the
application for rescission of judgment. It needs to be pointed out
here that the attorneys of record of Frances
enrolled the application
for rescission of judgment, despite the fact that Scholtz is the
Applicant and despite the fact that the
answering affidavit of
Frances in the rescission application had already been served on the
attorneys of record of Scholtz on the
24th
July
2013.
Scholtz did not file a replying affidavit
in the rescission application. Thus the answering affidavit of
Frances in these proceedings
stands uncontested. The enrolment for
hearing occurred on the
5th
February
2015.
[15]
Scholtz says that he only became aware, through his attorneys
of record, of the 9 December
2011
order on the
5th
March
2013.
However,
despite his lack of knowledge of the 9
th
December
2011
order and despite him having filed a notice of intention to defend in
the contempt application on the 22
nd
November
2011,
Scholtz never filed an opposing affidavit to the contempt
proceedings. This significant failure is nowhere explained. I
emphasise
that Scholtz is an attorney who clearly knew that an
opposing affidavit had to be filed. Apart from experience as an
attorney
the notice of motion expressly invited him to file an
opposing affidavit within 15 days after entry of intention to defend.
[16]
The absence of an opposing affidavit in the contempt
proceedings (always taking into consideration the fact that Scholtz
apparently
was not aware of the
9
December
2011
order until
the
5th
March
2015)
and the absence of a replying affidavit in the rescission application
are significant because in both those affidavits Scholtz
would have
had the opportunity to give the information required in prayer
1.3
the
2
July
2010
order. That has to date not materialised, leaving the court
and Frances in the dark as to what was done with the
R400
524.65
that unlawfully fell into the hands of Jansens
Incorporated already on the
29th
June
2010.
[17]
The only explanation in purported answer to paragraph
1.3
of the
2
July
2010
order was given under a Jansens Incorporated letterhead in a
letter dated the
3rd
July
2010.
The letter was
signed by Jansen. The contents thereof is paraphrased in paragraph
4.12
of the opposing
affidavit of Frances. The letter of
3
July
2010
under the
letterhead of Jansens Incorporated is in the papers in the court file
and is also quoted in the contempt application.
It reads as follows:
"1.
Ons verwys na bostaande
aangeleentheid
en die hofbevel aan
ons
versend
per faks op
2
Julie 2010
om
15:27
welke vanoggend tot
skrywer
(the letter was answered under
the signature of
Jansen)
hiervan
se
aandag
gekom
het. Skrywer
het
so
spoedig moontlik
hierdie
skrywe
opgestel
en
vra hy
omverskoning
vir
die 40 of so minute vertraging.
2.
Die inligting versoek en beveel is soos volg:
2.1
Oorbetaal deur Eerste Nasionale Bank in hul
trustrekening
op
30
Junie 2010
-
R400
524,65
2.2
Fondse betaal
uit trustrekening
(Absa kode
630238, tjekrekening
[0.....])
na besigheidsrekening
(Absa kode
630238,
tjekrekening
[0.....])
sedert
30 Junie 2010
tot
2
Julie
2010
-
R550
442,96
3.
Vennening
met
ander
trust-
en/of
besigheidsfondse van
die betaling in
paragraaf 2.
1
het plaasgevind.
4.
Die bedrag in 2.1
genoem is sedert, tesame met ander
trustfondse
na ans
vennelde besigheidsrekening
betaal en in ans besigheids rekening ontvang
as
fooie
deur Mnr Dreyer aan ans verskuldig en betaalbaar en ooreenkomstig sy
instruksies.
5.
In
die
gewone loop van
ans
praktykbesigheid
is verskeie debietorders
teen
ans
besigheidsrekening gehonoreer
en
ander
praktyksuitgawes betaa/. Dit is nie vir ons moontlik om die
fondse in paragraaf 2.1 te identifiseer nie.
6.
Ons vertou u vind bogeme/de in orde."
[18] In
paragraph 1.3 of the 2 July 2010 order Jansens Incorporated were
expressly ordered to provide the particulars of any payments
of the
funds (i.e. the R400 524.65) and the utilisation thereof. The
explanation in the letter of 3 July 2010 is not compliance
with the
contents of prayer 1.3 of the 2 July 2010 order. At no time since the
3rd July 2010 did Jansens Incorporated and Scholtz
and Jansen
personally explain how the R400 524.65 were spent by them. This is so
despite the fact that Scholtz and Jansen are facing
imprisonment for
non-compliance with the order of 2 July 2010.
[19]
Nowhere in the application for rescission of judgment does Scholtz
purport to oppose the application on grounds thereof that
he and/or
Scholtz and the professional company Jansens Incorporated in fact
complied with the 2 July 2010 order. A number of defences
are raised
which will be dealt with hereinlater, but it is significant that
there is an absolute silence as to the question whether
he regards
the letter of 3 July 2010 or for that matter any other explanation as
a
bona
fide
answer to specifically prayer 1.3 to 1.3.4
of the 2 July 2010 order. Neither is there in the rescission
application
an attempt to provide an
honest and forthright explanation as to how precisely the
amount
of R400 524.65 were used (actually misused) by Jansens
Incorporated whereof Scholtz and Jansen were the only directors.
[20] In
the opposing affidavit of Frances and more particularly in paragraphs
4.12 to 4.14 thereof the deponent on behalf of Frances
refers to the
insufficiency of the letter of the 3rd July 2010. The Frances
deponent also refers to the order of 2 September 2011
when Jansens
Incorporated was
inter alia
ordered to immediately pay the
amount of R400 524.65 into the Frances Fresh Produce Agent trust
account. The Frances deponent also
complains that the attachment of
the trust account of Jansens Incorporated delivered up only R4
843.00. The Frances deponent also
says that the R400 524.65 were used
to pay Scholtz' personal motor vehicle and the remainder of the funds
were transferred into
an account of a girlfriend of Jansen. One would
expect an officer of this court who
bona
fide
believes
in his innocence of contempt of court to take up the opportunity to
fully explain, if not in his founding affidavit then
in a replying
affidavit in these extremely important proceedings for Scholtz
personally, what actually happened with the R400 524.75
and why he
must be regarded as innocent of contempt of court.
[21]
Scholtz himself was deeply involved in the events between the 29th
June 2010 and the 3rd July 2010:
21.1
On 30 June 2010 the amount of R400 524.65 was attached as a result of
an ex parte application
launched by Jansens Incorporated in the
Potchefstroom Magistrate's Court.
21.2
Only after the attachment of the R400 524.65 were the papers in the
Magistrate's Court
ex parte application served on Frances.
21.3
On 1 July 2012 Frances' attorneys of record could not find copies of
the writ of attachment
on the Magistrate's Court file.
21.4
At 09h15 the Frances' attorneys arrived at the offices of Jansens
Incorporated where they
met Scholtz. Scholtz informed the Frances'
attorneys that they should wait for Jansen.
21.5
At 10h30 on the 1st July 2012 Jansen arrived and he informed Frances'
attorney of record that
he (Jansen) could not return the amount paid
into his trust account or deal with it without instructions from
Dreyer.
21.6
At 13h15 Jansen still alleged that he was awaiting instructions from
Dreyer. He was informed
that Frances intended launching an
application that same afternoon for rescission of the unlawfully
obtained order and writ of
attachment. Jansen undertook to make
his appearance at the Magistrate's Court at which time he will
disclose his instructions.
21.7
Jansen
failed
to
make
any
appearance
and
failed
to
disclose instructions.
21.8
Frances
proceeded
with
an
application
for
upliftment of
the attachment.
Jansens
Incorporated
as
represented
by Scholtz argued
three
points
in
limine
against
the
application
for
upliftment.
21.9
At
17h45
the
Magistrate's
Court
adjourned
and
reserved
judgment.
21.10
During
the
course
of
the
proceedings
before
the
Magistrate
Frances
insisted upon
an
undertaking
that
the
amounts
would
not
be
paid
out of
the
trust account of
Jansens Incorporated.
Scholtz
alleged
that
such
an
undertaking
could
not
be
granted
anymore
as
the
funds
have
been
paid
out
to
Dreyer.
[22] It
is undisputed in these proceedings, in view of the affidavit of
Dreyer and the absence of a replying affidavit, that Dreyer
neither
gave any instructions with regard to the trust funds nor received any
payment thereof nor could Jansens Incorporated debit
the full R400
524.65 as fees.
[23]
In fact in the words of Jansens Incorporated in their letter dated
the
3rd
July
2010,
Jansens
Incorporated paid their own debts with the unlawfully obtained
R400
524.65.
[24]
It goes without saying that the letter of 3 July
2010
is untrue in the respects referred to in paragraph
[22]
above. I again emphasise that both Scholtz and Jansen are attorneys
of this court. They (and in any event anybody else) are not
entitled
to lie to the court even if telling the truth would affect them
detrimentally.
[25]
It is astounding that Scholtz never took the opportunity to himself
explain under oath his conduct as well as the conduct of Jansen
and
the reasons for their conduct, if there exists and exculpatory
explanation. On the contrary, he clearly intentionally refrained
to
go under oath and give an explanation for the evidence contained in
the founding affidavit in the contempt proceedings. I make
this
deduction on grounds thereof that Scholtz, on his own version, was
for approximately a year after the granting of the 9 December
2011
order against him unaware thereof, yet after filing a notice of
intention to defend on the
2"d
December
2011
he never filed an opposing affidavit in the contempt application and
does not deal with these vital important matters in his founding
affidavit of the rescission application and more astoundingly, fails
to file a replying affidavit!
[26] A
contempt order with imprisonment and payment of R400 524.65 were
claimed in the contempt application. Yet no opposing affidavit
was
filed and no explanation for this failure is given in the rescission
application. In addition Scholtz is afforded a further
chance to give
an open and forthright explanation in his founding affidavit in
support of his application for rescission of judgment.
Scholtz,
however, does not give the expected forthright explanation. He
clearly purposely avoids dealing directly with what precisely
happened with the R400 524.65.
[27]
The explanation contained in the letter of the
3rd
July
2010
simply is
inadequate, unacceptable and untrue. The
2
July
2010
order is
extremely clear in prayer 3 thereof as to what information must
be supplied. In colloquial terms, the
3
July
2010
letter is "a
ducking and diving" exercise of giving an answer without
providing any detail and especially not the particulars
required in
paragraph
1.3
of the
2
July
2010
order.
Again I emphasise the fact that Scholtz is an attorney of this court
and an officer of this court having the obligation
to act honestly in
his dealings with the court.
[28] Not
even in the case of a lay person can the explanation contained in the
letter of
3
July
2010
be regarded as adequate and acceptable. In the case of Scholtz, it
certainly is unacceptable, him being an attorney, legally qualified
and trained and an officer of this court. In this
regard
Fakie N.O. v CCII Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006
(4)
SA 326
(SCA)
at par
42
found
that a person in the position of Scholtz who had knowledge of the 2
July 2010 order has an evidential burden in relation
to wilfulness
and
mala
tides
in contempt of court proceedings. Should
a person in Scholtz's position fail to advance evidence that
establishes a reasonable
doubt as to whether his non-compliance was
wilful and
ma/a
fide,
contempt will have been
established beyond reasonable doubt.
[29] In
these proceedings for rescission of judgment there is no evidence
advanced by Scholtz upon which there exists reasonable
doubt as to
whether the non-compliance with the contents of the 2 July 2010 order
was wilful and
ma/a fide.
In fact, the one aspect that is not
raised at all by Scholtz is an explanation specifically dealing with
the contents of the order
of 2 July 2010 and in particular the order
contained in prayers 1.3 to 1.3.4 of that order. There is not even a
word mentioned
that in his view the letter of 3 July 2010 adequately
explains the use of the R400 524.65 in order to negate the inference
of wilfulness
and
mala tides.
Not even the raising of these
aspects in the Frances answering affidavit persuaded Scholtz to
commit himself under oath in a replying
affidavit to a version in
this regard. He relies on the fact that the default judgment was
incorrectly taken on the 9
th
December 2011 because of his
absence after entering a notice of intention to defend as well as on
a number of "technical defences",
which I will deal with
hereinafter. About the essence of the matter, namely what
happened with the R400 524.65, he
does not mention a word.
[30] The
action or inaction of Scholtz with regard to compliance with the
order of 2 July 201O must be considered against the background
thereof that he is an attorney of this court and is accordingly fully
aware of the consequences of not complying with an order
of court and
of what the order of 2 July 2010 expressly required of Jansens
Incorporated.
[31] Both
attorneys and counsel have duties and obligations to the Court in
particular and to the administration of justice generally
that are
not confined only to matters connected with his practice. Indeed, to
put it bluntly, Scholtz has and had to conduct himself
consistent
with his obligations as an officer of the court.
See:
Natal Law Socierly v
N
[1985] (4) All SA 305
(N) also
reported
as
1985 (4) SA
115
(N) and the authorities referred to in that judgment.
[32] The
essence of any contempt of court is that it violates the dignity,
repute or authority of the Court. The rule of law requires
that the
dignity and authority of the courts, as well as their capacity to
carry our their functions, should always be maintained.
See
:
Fakie N.O.
v
CCII
Systems
(Pty) Ltd
2006 (4)
SA
336
(SCA) at
para
6
on
p332A
-
C.
[33]
The purpose of contempt proceedings usually are to compel the non-
complier to comply with the terms of a previous order. This
is not
the only purpose and contempt proceedings may be brought for the sole
purpose of punishing the non-compliant party.
See:
East London Local
Transitional Council v MEC for Health,
Eastern Cape
2001
(3)
SA 1133 (CK)
at
1141A.
[34]
The order of
2
July
2010
was an interim
order with immediate effect pending the return date of
28
July
2010.
Prayers
1.1
(sic) to
1.7
have immediate operation pending the return date. On
29
July
2010
a final order
as quoted above was made. The contents of prayers
1.2
, 1.3, 1.4,
1.5,
1.6
and
1.7
did not find their way in some form or fashion into the final
order of the
29th
July
2010.
This point is made
pertinently in paragraph
9.1
of the Heads of Argument filed on behalf of Scholtz for purposes of
the rescission of judgment application.
[35]
In essence this argument on behalf of Scholtz says that the
order of 2 July
2010,
being a rule
nisi,
was
discharged by way of the agreed order of the
29th
July
201O
and
accordingly lapsed or became inoperative as a result of the final
order. It is undoubtedly so that a rule
nisi
that has operation pending a return date lapses or is discharged if a
final order in those terms is not granted or if a different
order is
granted on the return date of the
rule
nisi.
See:
Mphahlele
Taxi
Association
v
Lebowakqomo
Taxi
Owner's Association
and
Others
[2002]
(3)
All
SA
124
(T)
per
[11].
SAB
Lines
(PtyJ
Ltd
v
Cape
Tex Engineering
Works
(PtyJ
Ltd
[
1968]
(2)
All SA 150
at
152.
The
submission thus is that Scholtz cannot be found in contempt of the 2
July 2010 order. Possible support for such an approach
might be found
in the judgments of
Bannatvne
v
Bannatvne
2003
(2)
SA
359
(SCA) and
Bannatvne
v Bannatvne (CGE as amicus curiae)
[2002] ZACC 31
;
2003 (2) SA
363
(CC). At para 14 of the Constitutional Court judgment of
Bannatvne
an order for committal of
the appellant for contempt of court was set aside as being
incompetent on grounds thereof that upon substitution
of a High Court
order by a maintenance court order the High Court order ceased to be
of force and effect.
[36] The
Bannatvne
judgments must be seen
within the specific context of maintenance orders. A declaration of
contempt may follow upon the wilful
and ma/a
fide
non-compliance
with an interim order or an order that later on lapses or is
discharged for some reason. In this regard reference
must be made to
the matter of
S v Beyers
1968
(3) SA 70
(AD)
which is quoted extensively with approval by the
Constitutional Court in
Fakie
N.O.
v CCII Systems-supra.
In
S
v Beyers
,
Beyers
was found guilty of contempt of court for contempt of an interdict
against Beyers despite the fact that the interdictory
order fell away
as a result of a settlement that
was
reached
in
terms
whereof
the
complainant,
with
retrospective
operation,
waived
the
relevant
sections
of the
interim
interdict as
if
it never had
existed. In
Marlin v French Hairdressing
Saloons Ltd and
Others
1950
(4)
SA 325
(W)
the
respondents were found in
contempt of
court
although
they
had
already
desisted
from
contravening
the
interdict
against
them
at
the
time
when
the
application for contempt was brought
against
them.
[37]
Accordingly, the fact that the interim order with immediate operation
pending the return day in terms of the 2 July 2010 order
lapsed or
was by implication discharged on the 29th July 2010 is no obstruction
to finding Scholtz in contempt of court of the
2 July 2010 order.
[38] Ms
Da Rocha in an able argument on behalf of Scholtz argued that Jansen
Incorporated was ordered to pay the sum of R400 524.65
in terms of
the order of 2 July 2011 and not Scholtz personally. Scholtz resigned
as a director of Jansens Incorporated. on 4 April
2011. It was
accordingly argued that Scholtz cannot be held in contempt of court
after the date of his departure as a director
of Jansens Incorporated
as since 4 April 2011 he has no ability to ensure compliance with the
orders against Jansens Incorporated.
[39]
There is no merit in this argument. Scholtz was a director of Jansen
Incorporated at the relevant time, namely the period 29
June 2010 to
29 July 2010. He was actively involved in the opposition to the
relief sought by Frances and clearly had full knowledge
of the order
of 2 July 2010 and of the facts relevant in the matter. In addition,
nowhere in the rescission application is it the
case of Scholtz that
he was not aware of the order of 2 July 2010 on or after 2 July 2010
or of the answer in the letter of 3 July
2010.
[40] It
is correct that Scholtz initially was not personally a party to the
litigation under this case number. He became so involved
as a result
of firstly the order of 2 July 2011 when Jansens Incorporated was
inter a/ia
ordered
to pay the sum of R400 524.65 to Frances.
[41] Then
the next step in the process of involving Scholtz personally was the
contempt application. The contempt application led
to the judgment of
9 December 2011. Contrary to the argument of Ms Da Rocha, the
contempt of court application firstly makes out
a case for contempt
of court of the 2 July 2010 order. It secondly intends to force
Scholtz to pay the sum of R400 524.65 in order
to avoid imprisonment
for the contempt of the 2 July 2010 order. The contempt of court
application was brought under this case
number directly against
Scholtz and Jansen personally. The basis of their liability is the
fact that Scholtz and Jansen were the
only directors of Jansens
Incorporated during at least the period 29 June 2010 to 29 July 2010
who both had knowledge and participated
in the process of illegally
obtaining payment of the R400 524.65 and in the actions of
non-compliance with the 2 July 2010 order.
[42] It
is trite that the directors of a company, who has knowledge of the
contempt of court of their company, are personally liable
together
with the company for contempt of court.
See:
Twentieth
Century
Fox
Film
Corporation
and
Another v
Playboy
Films
1978
(3)
SA
202
(WLD)
at
203
C
-
D.
It is
necessary to quote from this judgment at 203G - H where the following
is stated:
"This
Court must
jealously
guard
the orders
which
it grants
in the interests of
the
community
at
large.
If
persons such
a
Jagger were permitted to
trifle
with
the
orders
of
this
Court
without
being
severely punished
therefore
the
administration
of justice
would
be
brought
into disrepute
and
rendered
valueless."
(The
reference
to
"Jagger''
is
a reference to
the director of
the respondent in
that application
for
committal
to
prison
of
Jagger
for
contempt
of
court). See
also:
Metlika
Trading Ltd and Others v Commissioner,
SARS
2005
(3) SA 1
(SCA)
at
191.
[43] The
order of 2 July 2010 is not attacked by Scholtz in the rescission
application on grounds of alleged non-knowledge of the
2 July 2010
order or on the grounds that the 3 July 2010 letter from Jansens
Incorporated is a
bona
fide
and adequate answer to
prayer 1.3 of the 2 July 2010 order or on grounds that he did not
know of the 3 July 2010 letter or on grounds
that he disagrees with
the contents thereof.
[44]
There accordingly is a proper case for personal liability of Scholtz.
The fact that he resigned as a director on 4 April 2011
has no
bearing on that liability. The contempt was committed long
before 4 April 2011 and particularly in the period 3 -
28 July 2010.
[45] This
avoidance to provide the information required by prayer 1.3 to 1.3.4
of the 2 July 2010 order tends to bring the court
in disrepute and
violates the dignity, repute and authority of the court.
[46]
Accordingly, contrary to the argument of Ms Da Rocha, a proper case
for contempt of court is made out.
[47] Ms
Da Rocha further argued on grounds of the matter of
The
Master
v
Mota/a
2012
(3)
SA 325
(AD)
that the order of 9 December 2011 is void
and can be ignored. Her further argument was that the only reason for
Scholtz to attack
the 9 December 2011 order (which is according to
the argument void), is the contempt order contained in the 9 December
2011 order.
This argument is incorrect. In
The Master v
Mota/a
the point is made that a null and void court order
may be disobeyed without having to declare the purported order null
and void
by a court. Unquestionably one of the instances of
such invalidity is where legal proceedings are initiated against a
party
and he is not cited to appear. See or instance
Sliom v
Wal/ach's Printing and Publishing
Company Ltd
1925 TPD 650.
The answer
to this argument is that this is not a similar case. It is common
cause on the papers that the contempt application
was indeed
personally served on Scholtz on the
22nd
November
2011
and that he entered a notice of intention to
defend on the
2nd
December
2011.
He thus was properly cited.
[48] The
next question to be determined is whether his absence and non
knowledge of the proceedings of the
9th
December
2011
entitles him to a rescission
of judgement.
[49] In
terms of Rule 42(1) a court may rescind a judgment that was
erroneously sought or erroneously granted in the absence of
a party.
[50]
The contempt application was issued on 9 November
2011
and served personally on Scholtz on the
22nd
November
2011.
Scholtz filed his notice of
intention to defend (paginated as pages 32 - 34 of the contempt
application) on
2
December
2011.
Throughout these proceedings against Scholtz personally he is
represented by Attorneys Francois Uys Incorporated. It is also
Francois
Uys Incorporated who entered notice of intention to defend
on the
2nd
December
2011.
An
odd fact in these proceedings is that Francois Uys Incorporated was
delivered with an index and a notice of enrolment
for the
4th
June
2012
of the contempt application against
Jansen. The order of 9 December
2011
formed part
of such papers and it must have been clear to all concerned that an
order was granted on the 9
th
December
2011.
Yet in the application for rescission of judgment it is the case of
Scholtz that his attorneys only became aware of the 9 December
2011
order and informed him thereof on or about the
5th
March
2013.
(I noted that no confirmatory
affidavit from Francois Uys Attorney was filed with the rescission
application.) No point was made
of this oddity by Mr Davis SC and it
is nowhere referred to in the papers. Therefore, although Ifind it
odd that the order of the
gth
December
2011
could have escaped the attention of Scholtz and his attorney of
record, I will not take this fact into consideration seeing that
it
is neither canvassed in the affidavits nor in argument.
[51]
The application is not specifically stated to be brought in terms of
Rule
42
and I approach the matter on the basis
that the application covers both Rule
42(1)
and
the Common Law.
[52]
In terms of Rule
42(1)
an applicant for
rescission of judgment who can show that the order was erroneously
sought or erroneously granted is in principle
entitled to a
rescission of judgment without explaining what his/her defence is
against the claim.
See:
Topal v LS Group Management
Services
(Pty)
Ltd
1988 (1) SA
628
(W) at
6500
-
J.
In a
rescission on grounds of the Common Law a defence to the claim must
also be disclosed.
[53]
That the order was erroneously sought on the 9
th
December
2011
is without doubt.
The only question left in this regard is whether I have a discretion
and should exercise such discretion against
the rescission of
judgment in the circumstances of the matter.
[54]
One aspect relevant to an exercise of discretion in terms of
Ruel
42(1)
is whether the
application for rescission of judgment was brought within a
reasonable time after Scholtz became aware of the
9
December
2011
order or
sets forth a reasonable explanation for the failure to apply for
rescission of judgment within a reasonable time.
[55]
Scholtz says he became aware of the
9
December
2011
order on
the
5th
March
2013,
that is approximately
14
months after the granting of the
9
December
2011
order. Scholtz instituted the rescission of judgement application on
the
20th
June
2013,
that is
3
months
after becoming aware of the
9
December
2011
order.
[56]
Frances made no objection to the lateness of the application for
rescission of judgment and no argument was presented in that
regard.
In
the circumstances
I
conclude that the rescission
application was brought
within
a reasonable time.
[57]
I have a discretion
to
refuse a rescission of judgment
even
though the 9
December
2011 order was erroneously
sought
as intended by
Rule
42(1).
See:
Tshivhase
Royal
Council
v Tshivhase; Tshivhase
v
Tshivhase
[1992] ZASCA 185
;
1992 (4) SA
852
(AD)
at
8621
-
863A.
In
the exercise of my discretion I
must take into consideration
that it is not
necessary
for
Scholtz
to
show
good
or
sufficient
cause
in order
to
be
successful
with
the
rescission
of
judgment
application
in terms
of
Rule
42(1).
See:
Topal
v
LS Group
Management
Services supra
and
Mutebwa
v
Mutebwa
[2001]
(1) All SA 83
(Tk)
at
89;
Tshabalala
and
Another v
Peer
1979 (4)
SA 27
(T)
at
300;
Bakoven
Ltd
v
GJ
Howes
(PtyJ
Ltd
1992
(2)
SA
466
(E)
at
471G.
[58]
Insofar
as
Topal
,
Mutebwa
,
Tshabalala
and
Bakoven
purport
to find
that
there
is
no
discretion
to refuse
an
application
for
rescission of
judgment in
terms
of
Rule
42(1)
when
the
judgment
was
erroneously
sought
or erroneously granted,
I
have to respectfully disagree with these
judgments.
Rule 42(1) is clear in providing
a discretion. That this is so is
confirmed
by
the
Tshivhase
judgment,
which
is
a
Supreme
Court
of
Appeal judgment. I furthermore agree with the discussion in
this regard as set forth in the matter of
Sheriff
Pretoria Norlh-East v Flink
and Another
[2005]
(3)
All SA 492
(T) at
497 -
504.
See
also:
Theron
v
United Democratic
Front
(Western
Cape Region)
1984
(2)
SA 532
(C) 536 G.
Van
der Merwe v Bonaero
Park
(Edms)
1998
(1) SA 697
(T);
Brangus Ranching
(Pty)
Ltd v
Plaaschem
(Pty)
Ltd
[2008]
(4) All SA 542
(N);
Harms
Civil
Procedure in the
Supreme Coult
(the
Commentary Volume) par 842.9 at pB-304.
[59] I
now consider the question whether I should exercise my discretion to
refuse rescission to Scholtz.
[60]
Scholtz entered a notice of intention to defend on the
2"d
December 2011. Yet at no time thereafter did he file an
opposing affidavit to the application. This remissness is nowhere
explained
by Scholtz. Accepting that he had no knowledge of the
9 December 2011 judgment, it is exceptionally strange that Scholtz,
as an attorney, did not ever thereafter file an opposing affidavit,
having regard thereto that the notice of motion in the contempt
application indeed invites him, as it should be done, to file an
opposing affidavit within 15 days after delivery of his notice
of
intention to defend. Scholtz is himself after all an attorney who
would have known that the consequences of failure of a filing
of
opposing affidavit would eventually probably lead to a default
judgement against him. Considering the seriousness of the
application,
I cannot accept that an attorney of this court would
have forgotten to give attention to filing of an opposing affidavit
after
having taken the trouble of appointing attorneys of record and
filing a notice of intention to defend.
[61]
Scholtz lists his defences in paragraph 28 of his founding affidavit
in the rescission application. Before turning to these
defences I
need to discuss a number of the submissions made by Ms Da Rocha in
support of a rescission of judgment:
Firstly
Ms
Da
Rocha
submitted
that
on
2
September
2011
Jansens
Incorporated
was
ordered
to
pay
the
sum
of
R400
524.65
and
not Scholtz.
Scholtz had resigned
before the 2nd September
2011 order
was
made
and up
to
then
neither Scholtz nor
Jansen were ever
personally sued.
As at 2 September
2011 and thereafter Scholtz was
not a director
(he having resigned on the 4th April 2011) and he could
therefore not
ensure compliance of
the
order.
Ms
Da
Rocha
accordingly
submitted that he cannot be in contempt of court as he
could not have
ensured
compliance
with
the
court
order
of
the
2nd
September
2011
and as at the 2nd
September 2011 he
was also not personally sued; in
fact
there
was
no
case
for
personal
liability
made
out
against
him
and
accordingly
there
is
no
contempt
of
court;
also
on
authority
of
The
Master v Motala
2012
(3) SA 325
(A)
the order of 9 December 2011
was
void and could have been ignored; had it not been for the
contempt part thereof, Scholtz need not even have approached the
court
to have the 9 December 2011 order set aside.
[62] The
answer to these submissions are:
Scholtz
and Jansen were both under the abovementioned case number personally
cited by way of the 7 November 2011 contempt application.
They are so
cited on grounds of contempt of court of the 2 July 2010 order. I
already found that the 2 July 2010 order indeed was
an interim order
that operated between the period 2 July 2010 to 29 July 2010. I
already found that there was contempt of court
during that period in
that the purported answer contained in the letter of 3 July 2010 from
Jansens Incorporated clearly did not
comply with the terms of prayer
1.3 with its sub-paragraphs of the 2 July 201O order. I already found
that, despite the 2 July
2010 order having lapsed or having been
discharged by way of the 29 July 201O order, both Scholtz and Jansen
indeed were in contempt
of court.
Scholtz
nowhere in the rescission application alleges that he was not aware
of the provisions of the 2 July 2010 order and in any
event a perusal
of the papers show that he was deeply involved in the opposition to
the attempts by Frances to obtain relief with
regard to the R400
524.65.
His
personal liability arises out of the contempt application and the 9
December 2011 order is an attempt to ensure payment of the
R400
524.75 as is clear from the very prayers sought and granted against
Scholtz on 9 December 2011.
The
judgment
of
Master v
Motala
2012
(3)
325
(A)
is inapplicable.
The
order
of
9
December
2011
was
not void
but
is
liable to
be set
aside
(subject
to
the
exercise
of
my
discretion) as
it
was
erroneously sought as
intended by Rule 42(1). In
this case it must be remembered that there
was
personal
service of
the
contempt application on
Scholtz.
The
order of 9 December 2011 is thus not void as envisaged by the
discussion of
void
judgments
in
the
Motala
-matter.
[63]
Since 2 July 2010 no proper explanation as to how the funds were
utilised, has been provided to date. In this regard Scholtz
is an
officer of the court who understands the contents of prayer 1.3 of
the order of 2 July 2010. He is an attorney and accordingly
a member
of an honourable profession who was ordered by the court of which he
is an officer, to provide specific information.
[64] The
submissions in paragraph 13.1, 13.2 and 13.3 of the Heads of Argument
filed on behalf of Scholtz must be dealt with: the
submission is made
that Frances did not prove that Scholtz knew of the order of 9
December 2011. These submissions are made without
reference to the
contents of the founding affidavit of Scholtz. Nowhere is it his case
that he was not aware of the existence of
the order of 2 July 2010.
It is Scholtz's own version in paragraph 7 of the founding affidavit
that he only deals with the facts
of the matter as are relevant to
the rescission application. He deals in paragraph 8 and 9 with the
order of 2 July 2010 and the
order of 29 July 2010 and nowhere he
alleges that he did not have knowledge of those orders or of the
letter of 3 July 2010. Accordingly
nothing turns on these submissions
and they are not based on any facts. The Heads of Argument argues
that the contempt arises from
paragraph 1.7 of the 2 July 2010 order
whereas clearly, the contempt lies with regard to non-compliance with
the contents of prayer
1.3 and its sub-paragraphs of the 2 July 2010
order. Accordingly these submissions are also of no assistance to
Scholtz.
[65] The
defences raised in paragraph 28 of the opposing affidavit will now be
discussed:
In
paragraph 28.1 it is alleged that the founding affidavit of the
contempt application contains allegations that were written in
by
hand "whilst it is clear that the affidavit is a copy, with
reference to the signature thereof before a commissioner of
oaths".
The precise nature of the objection is not clear to me. However, in
paragraph 4.1 and 4.2 of the founding affidavit
the address
particulars of Scholtz and Jansen were written in by hand. There is
no initialling next to the handwritten addresses.
The affidavit is in
original and signed in original by both the deponent Kock and the
commissioner of oaths. I find no irregularity
and the affidavit
certainly is not a copy.
Secondly
in paragraph 28.2 the allegation is made that Jansens Incorporated
has a substantial interest in the matter and is not
a party. Insofar
as the contempt of court proceedings are concerned, Jansens
Incorporated is not a party with a direct and substantial
interest.
It is a claim directed personally at the directors of the
professional company.
In
paragraph
28.3
it
is
alleged
that
Scholtz
and
Jansen
never
were
parties
to
the
proceedings
prior
to
the
contempt
application
of 7 November
2011
resulting in
the 9 December 2011 order.
The
implication
clearly
is
that
they
are
irregularly
before
the
court.
The
contempt application is somewhat unconventional in
the
sense that one would have expected the application to be issued under
a different case
number
or
alternatively that
a joinder
application
be brought
so
as to formally
join Scholtz and
Jansen.
However, nothing
turns on
this
apparent
irregularity. Scholtz and Jansen both were properly and fully
cited as parties in
a
separate application (although under the same case
number) in
terms
whereof
they personally
are
cited as
parties
for
purposes
of
the contempt application.
I
find no
defence entitling Scholtz
to a rescission of judgment
in this
approach of Frances.
It clearly is a
practical approach in the sense that all the papers relevant
to the matter are then contained in one court file.
In
paragraph
28.4
the
defence is raised that as from
4
April
2011
Scholtz
has not been a director of Jansens Incorporated and accordingly he
could not give effect to the order of
2
September
2011.
The
contempt application is not directed against failure by Scholtz or
Jansen to comply with the
2
September
2011
order.
It is an application for their contempt of the
2
July
2010
order coupled
with orders compelling payment of the
R400
524.65.
This approach appears to me to be perfectly in
order.
In
paragraph
28.5
the
allegation is that the order of
2
July
2010
was novated (or
lapsed or was discharged) as a result of the settlement agreement
order of the
29th
July
2010.
I already dealt
with these allegations.
In
paragraph
28.6
the
allegation made is that there is a pending application for rescission
of judgment dated the
30th
January
2012
to rescind
the order of
2
September
2011.
No allegation is
made that the order of
2
September
2011
has
been rescinded and nowhere in the original papers in the court file
does there appear such an application or an order resulting
from such
an application. In any event the order that Scholtz must personally
pay the
R400 524.65
in
order to avoid being imprisoned, can stand alone on the facts without
the existence of the
2
September
2011
order. In paragraph
28.7
the discharge of the
rule
nisi
of
2
July
2010
is raised. This has
been dealt with and does not constitute a defence.
In
paragraph
28.8
the
allegation is made that the order of
2
September
2011
was
not served on Scholtz save that
it
is an
attachment to the contempt application dated the
7th
November
2011.
The
contempt application was properly served on Scholtz personally and
was not directed at contempt of the
2
September
2011
order.
In
paragraph
28.9
it is
alleged that Frances does not have
locus
standi
insofar
as the trust monies (that is the
R400
524.65)
is concerned. This is a rehash of a defence
raised already in
2010,
namely that the persons who deposited money into the Fresh Produce
Agent trust account of Frances ought to be cited as parties
to the
proceedings. This simply is not a defence. Quite clearly the
depositors are not parties for any purposes in these proceedings.
The
entity who is in charge of its Fresh Produce trust account is Frances
and Frances alone. No defence arises from these allegations.
[66]
Having regard to the abovementioned defences, they are indeed no
defences and they also do not deal with the true nub of the
matter,
namely how the R400 524.65 were spent.
[66]
Thus
there
is
no
bona
fide
defence
with
prospects
of
success.
[68] In
the circumstances I exercise my discretion against Scholtz and find
that the rescission of judgment application must be
dismissed with
costs. The conduct of Scholtz and Jansen brings this Court and its
orders in disrepute and must be investigated
by the Law Society. I
intend to make a direction in that regard in the order.
[69]
In
the
circumstances
I
make
the
following
order:
1.
The application for rescission of
judgment
is
dismissed.
2.
The
Applicant for rescission of
judgment (Wilhelm Pieter Scholtz)
is
ordered to pay
the opposed costs of
the application
for
rescission of
judgment.
3.
The
Registrar
of
this
Court
is
requested
to
refer
the
contents
of
the court
file
to
the Law
Society of
the
Northern Provinces
for
investigation.
_____________________________
AJ
LOUW AJ