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[2015] ZAGPPHC 596
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Western Crown Properties 113 (Pty) Ltd and Others v The Trustees From Time to Time of the Mkonza Family Trust and Another (13699/2013) [2015] ZAGPPHC 596 (30 July 2015)
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
30/7/2015
Case No: 13699/2013
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED√
……………… …
........................
DATE
SIGNATURE
HEARD
ON: 19 FEBRUARY 2015
DELIVERED
ON: 30 JULY 2015
In
the matter between:
WESTERN
CROWN PROPERTIES 113
(PTY)
LIMITED
First Applicant
BRUCE
FINNEMORE
Second Applicant
MARGARET
FINNEMORE
Third Applicant
and
THE TRUSTEES FROM TIME TO TIME OF THE
MKONZA
FAMILY
TRUST
First Respondent
XUMA
TECHNOLOGIES
(PTY) LTD
Second Respondent
JUDGMENT
MOHLAMONYANE
AJ:
INTRODUCTION:
[1]
On 28 January 2014 this Court, per Murphy J, granted an Order against
the First, Second and Third Respondents, in the following
terms:
“
1.1 Remove all vehicles, material, machines
and equipment related to
the
unlawful
use
of
Portion […]
Nooitgedacht within
7
(seven)
days
of
this
Order;
1
.2 Immediately cease with the use of Portion
[…] Nooitgedacht
for
any
purpose
other
than
that permitted
by:
1.2.1 The National Environmental Management Act, 1998
(Act 107 of 1998) and the Regulations published in terms of that Act;
1.2.2 The title conditions of the property; and
1 .2.3 The zoning of the property.
1.3 Not to commence or recommence with any use of
Portion [...] Nooitgedacht for purposes presently impermissible until
and unless:
1.3.1 The title conditions of the property have been
amended to permit the intended use;
1.3.2
The zoning
of
the property
has
been
changed
to permit
such
intended
use; and
1.3.3 The intended change of land use of Portion
[...] Nooitgedacht has been authorised/ in terms of the National
Environmental
Management Act, 1998 (Act 107 of 1998) and the
Regulations published in terms of that Act by the Gauteng Department
of Agriculture
and Rural Development.
2. The
First,
Second
and
Third
Respondents
are
Ordered
to
pay the
costs
of this
application on
a
scale
as
between
attorney
and
client
jointly
and
severally,
the
one paying
the other
to be
absolved”.
[2]
For purposes of this judgment, it is necessary to quote the Order and
its terms in full.
[3]
The First and Second Applicants (hereinafter “
the
Applicants”
) approach this Court seeking to have the
First and Second Respondents (hereinafter “
the
Respondents”
) held in contempt of the Court Order
granted on 28 January 2014. The Third Respondent, who had leased the
property [Portion [...],
a Portion of Portion …] of the farm
Nooitgedacht […], Registration Division J. Q., Province of
Gauteng, measuring
8, 7366ha (“
the property”
)
from its owner, the First Respondent, is no longer a party to these
contempt proceedings because the lease has since expired and
the
Third Respondent has subsequently vacated the property. It is not
suggested by the Applicants, or it does not so appear from
the papers
that the Third Respondent is currently conducting any activities on
the property.
[4]
It is trite that a Court Order, even a wrong Order, remains valid and
binding until it is nullified or set aside by a higher
Court of
competent authority.
(Jeebhai v Minister of Home Affairs
[2007] ZAGPHC 47
;
[2007] 4
All SA 773
(T)
par. 51)
. The Court Order of 28 January
2014 was never challenged by the Respondents on appeal. At the
outset, I must state categorically
that the Order remains valid,
binding and enforceable. Whether the Order has been contravened or
has not been complied with by
the Respondents is an issue that I must
determine.
[5]
The First and Second Respondents are resisting the granting of the
Order for contempt of court against them.
VERSION OF THE APPLICANTS:
[6]
Dr Bruce Finnemore
(“Finnemore”)
testified on
behalf of the Applicants. His testimony is briefly that the
Respondents are in contempt of the Order in three respects.
These are
that the Respondents have:
6.1 failed to remove the vehicles, material, machinery
and equipment related to the unlawful use of the property.
6.2 continued to use the property for business purposes
in contravention of the
National Environmental Management Act, no l07
of 1998
(“NEMA
”
) ,
the title conditions of
the property by continuing to store business related vehicles,
material, machines and equipment thereon
and by using the property to
dump waste.
6.3 commenced or allowed commencement of the unlawful
use of the property to dump rubble.
[7]
The title deed of the property (pages 93-95-Annexure “FUR03”
- contained in bundle: Respondents’ Application
for Leave and
Condonation) sets out the title conditions. For purposes of this
application, the salient conditions are the following:
7.1 “Not more than one dwelling house together
with such outbuildings as are ordinarily required to be used in
connection
therewith shall be erected on the land except with the
written approval of the Controlling Authority ad defined in Act 2 1
of 1940.
7.2 The land shall be used for residential and
agricultural purposes only and no store or place of business or
industry whatsoever
may be opened or conducted on the land without
the written approval of the Controlling Authority as defined in Act 2
1 of 1940.
7.3 No building
or any structure
whatsoever
shall
be erected
within a
distance
of
37,
38
metres
from
the
centre
line
of
the
public
road,
without
the
written
approval of the
Controlling
Authority as defined in Act 2
1 of
1940”
.
[8]
A series of photographs (Annexures “CON02” and “CON03”
pages 23- 25, Contempt Application) were annexed
to the Applicants’
founding papers. According to Finnemore these sets of photographs
were taken by him. The first set, Annexure
“CON02”, was
taken on 24 February 2014. The second set, Annexure “CON03”,
has the date “12 02 2014”
imprinted on the set of
photographs, with the corresponding day times at which they were
taken. I will later revert to these aspects.
THE
RESPONDENTS’ VERSION:
[9]
Mr Nkosinathi Owen Mkonza
(
“
Mkonza
”
)
testified on behalf of the Respondents. Although the Applicants
challenged Mkonza’s
locus
standi
to depose to the
answering affidavit because he attached no proof that he was
authorised to depose to the affidavit on behalf of
the Respondents,
in the interests of justice it is deemed that Mkonza was so
authorised by condoning the defect. The Applicants
will not be
prejudiced by the admission of the answering affidavit of Mkonza into
these proceedings.
[10]
The gist of Mkonza ‘s testimony is that on the date the
Applicants’ photographs were taken, the Respondents were
in the
process of removing the “
material”
and “
cables”
from the property. (Paragraph 6 of the Answering Affidavit, page 38)
. It is the version of Mkonza that as at the date of deposing
to the
affidavit, being 09 July 2014, the Respondents had removed all the
materials and the cables as well as vehicles from the
property. It
appears from Mkonza’s evidence that the only vehicle that
remained on the property as at 09 July 2014 was the
truck that had
broken down and which required some repairs.
[11]
In reply Finnemore, on behalf of the Applicants, annexed a further et
of photographs (Annexure “REP04”, pages 174-209,
-
Replying Affidavit, Contempt Application). Finnemore also annexed
Google Earth images (pages 21 1-214, Replying Affidavit, Contempt
Application).
THE LAW REGARDING CONTEMPT OF COURT:
[12]
Counsel (in Applicants’ simplified heads of argument) referred
me to Fakie NO v CCII Systems (Pty) Ltd,
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA),
which, as counsel correctly pointed out, settled the law on contempt
of court.
[13]
The Applicants must proof three requisites in contempt proceedings.
These are the Order, service or notice on the Respondents
and
non-compliance (Fakie NO at pars. 23 and 41).
[l4]
Furthermore “
...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 mala
fide, contempt will have
been
established
beyond
reasonable
doubt”.
(Fakie NO
supra
, par.
42(d).
[15]
From the Respondents’ own version, I am satisfied that they are
aware of the Order, which was granted pursuant to an
opposed
application in which they were represented by their legal
representatives.
[16]
The next crucial question is whether the Respondents have complied
with the Order or not. Before I venture to decide whether
the
Respondents have complied or not, I have to deal with the
Respondents’ additional evidence. I do so hereunder.
FIRST
AND SECOND RESPONDENTS’ SUPPLEMENTAR Y AFFIDAVIT:
[17]
On 29 January 2015, some two weeks before the hearing of this
application, the First and Second Respondents delivered a
supplementary
affidavit. The said affidavit is deposed to by Ms
Boitumelo Charmain Mkonza
(“Boitumelo”)
who is a
director of the Second Respondent. Boitumelo indicated in her
affidavit that the purpose of the affidavit was “
...to
place relevant information before
the
Honourable
Court
which
makes the
current
proceedings
against the
respondents
nugatory”.
In the
supplementary affidavit, the Respondents seek to rely on three
letters. One is from an official of the Gauteng Department
of
Agriculture and Rural Development
(“GOARD”),
the
second one from another official of GOARD and the third from the
Director of Public Prosecutions in Johannesburg, which are
contained
on pages 36, 38 and 33 respectively, contained in bundle of
Application for leave and Condonation. In the Respondents’
concise submissions, the Respondents contend that the Applicants ‘
notion that the Respondents are in utter and continuous
contempt of
the court order are at odds with the independent inspections
conducted by the GOARD and the office of the OPP in Johannesburg.
The
Respondents’ argument is flawed because whatever officials of
GOARD and the OPP might have echoed does not supersede
a court order.
It seems that the letters from GOARD only considered issues that had
to do with environmental deterioration of the
site. The Respondents
were still required to comply with title conditions of the property.
[18]
These letters sought to exonerate the Respondents from liability. The
two letters from GOARD indicated that, in essence, no
unlawful
activity could be found on the property. The Applicant’s
counsel, in his simplified heads of argument, contends
that these
proceedings relate to whether the Respondents have complied with the
Court Order or not. It is contended further that
the Court Order does
not make compliance therewith dependent on whether the Respondents
would be guilty or not of any preferred
criminal offences. It is
further argued that the statutory notice referred to in one of the
letters will also have no bearing to
these contempt proceedings. I
agree.
[19]
It follows therefore, that the supplementary affidavit of the
Respondents does not take the Respondents’ case any further.
PARTS OF THE ORDER:
[20]
As indicated by the Applicant’s counsel in his heads of
argument, the Order is in three parts. I will deal with each
part in
turn.
PART 1.1:
20.1 Part 1 .1 of the Order orders and directs the
Respondents to remove all vehicles, material, machines and equipment
related
to the unlawful use of the property within seven (7) days of
the granting of the Order. The seven (7) days would expire on 06
February
2014. As stated above, in paragraph 6 of the Respondents
‘answering affidavit (in the Contempt Application) the
Respondents
“
...were
...
in
the
process
of
removing the
material
and
cables
from
the
property
in
question”.
In my view, the date of removing the “
material”
and “
cables”
is significant to determine whether
the Respondents have complied with the Order or not. The photographs
were taken on 24 February
2014, which date is clearly imprinted on
the photos annexed as Annexure “CON02”, on pages 23-24 of
the Contempt Application.
20.2 The images in Annexure “CON02” required
extremely closer scrutiny to which I subjected them. The purpose was
to
discern what appeared to have been on the property on 24 February
2014, when these photographs were taken. I saw an unused canopy,
cables, heavy duty truck, concrete manholes and cable drums. The
authenticity of the photographs was not disputed, apart from a
very
late attempt by the Respondents alleging that the dates on the
photographs presented by the Applicants were “
...manipulated
in
that
the
dates
on the
photos
have
been
changed”.
This serious
allegation which went short of alleging deceit, misrepresentation and
fraud on the part of the Applicants appears,
in a letter written to
the Applicants ‘attorney of record by the Respondents’
attorney of record and dated 23 February
2015. The allegation of
manipulation was not pursued in this Court on 31 March 2015, either
on affidavits by the Respondents or
in argument by the Respondents
‘counsel. In my view, it was wise of the Respondents ‘counsel
not to do so. I am made
to appreciate that the dates on these
photographs are automatically imprinted on the photographs by the
electronic camera which
was used to take the photographs. In the
absence of convincing proof of any manipulation, I will accept the
dates to be true and
correct.
20.3 The Applicants, in reply, annexed a further bundle
of photographs as Annexure “REP04” (pages 172-209,
Contempt
Application). The photographs were taken by Finnemore. I
again scrutinised the photographs. The following objects or items are
visible thereon:
20.3.1 On 12 and 20 February 2014-dumping of concrete
and building rubble; a crane enabled truck.
20.3.2 On 26 June 2014-dumped concrete and building
rubble, bricks and cables.
20.3.3 On 07 July 2014-dumped concrete and building
rubble, storage structure, a commercial vehicle, cable drums and
cables and
bricks and building materials, concrete manholes and
manhole covers, burglar bars and a housing structure.
20.3.4 On 12 July 2014-commercial vehicles and
transporter for heavy industrial vehicles.
20.3.5 On 01 August 2014-labourers working on industrial
site, cables and trunking, bricks and building materials, a shed-like
structure,
burglar bars, cables and cable drums, concrete manholes
and manhole covers.
20.3.6 On 22 September 2014-concrete manholes and
manhole covers, commercial vehicles, cables and cable drums, bricks
and building
materials, concrete and building rubble, burglar bars,
transporter for heavy industrial vehicles.
20.3.7 On 25 September 2014-concrete and building rubble
and a commercial bakkie.
20.3.8 On 09 October 2014-concrete and building rubble,
cables, bricks, commercial vehicles, cables and cable drums, concrete
and
manholes and manhole covers.
20.3.9 On 29 October 2014-transporter for heavy
industrial vehicles, bricks, commercial vehicles, a housing
structure, concrete
and building rubble, concrete manholes and
manhole covers.
20.4 The Google Earth images on pages 21 1 to 214 show
rubble and waste on 10 April 2014, 06 June 2014 and 28 July 2014.
[21]
What appear on the photographs on the dates indicated, at least since
24 February 2014 to 29 October 2014 demonstrate a consistent
pattern.
The different dates show that almost same objects, viz., rubble,
cables, commercial vehicles, manhole covers and concrete
manholes
remained on the property on those dates mentioned. Have the
Respondents proffered a contrary indication that the manhole,
rubble
or bricks were not on the property?
PART
1.2:
21.1 Part 1 .2 of the Order requires the Respondents to
immediately cease with the use of the property for any purpose other
than
that permitted by law, specifically NEMA and its Regulations, as
well as the title conditions of the property.
21.2 Title condition contained in clause 3 of the title
deed reads:
“
The
land
shall be used for
residential and agricultural
purposes only
and
no
store
or
place
of business or
industry
whatsoever
may
be opened or conducted on the land without
the written
approval
of
the
Controlling
Authority
as
defined in Act 21 of
1940”.
I agree with the proposition by the Applicant’s
counsel that the failure of the Respondents to comply with part 1.1
of the
Order, means, by definition, that the property is still being
used for business purposes and as a store for business related
material.
I have not been informed as to whether the Respondents
acquired the necessary approval required in terms of clause 3 of the
title
conditions to use the property for business or industrial
purposes. I am, through what appear on the photographs, persuaded
that
there was and still is industrial and business activity going on
inside the property.
[22]
For instance, heavy equipment were still working on the property, as
shown on photographs on pages 88 and 89 (of the Application
for Leave
and Condonation Bundle) on 03 December 2014.
[23]
On 01 August 2014, on pages 188 and 190 (Contempt Application Bundle)
the photographs show workers still working on the unlawful
business
site.
[24]
One week before the hearing of this application, specifically on 09
and 12 January 2015, on pages 77 and 88 respectively (of
the
Application for Leave and Condonation Bundle) the photographs show
that the commercial vehicles were still being used for work
that was
going on inside the property.
[25]
On pages 174, 175, 177, 180 and 194 (of the Contempt Application
Bundle) and pages 76, 78, 79, 81 , 82, 86, 89 and 90 (Application
for
Leave and Condonation Bundle) these photographs show the cement
columns and building rubble dumped in February 2014, after
the Order
was granted. All these building materials, rubble and machinery are
still stored on the property.
[26]
The Respondents have not shown that they have authority to use the
property for business or industrial purposes as required
by condition
of title contained in clause 3. This, in my view, is a clear
contravention of the title condition.
PART
1.3:
26.1 Part 1.3 of the Order prohibits the Respondents
from commencing or recommencing with any use of the property which is
presently
impermissible, unless permission has been granted by the
relevant authority to rezone the property. It appears that the
Respondents
have not acquired such permission.
26.2 Clearly, this title condition and this part of the
Order have been contravened.
EVIDENTIAL
BURDEN RESTS WITH THE RESPONDENTS:
[27] In Fakie NO,
supra,
paragraph 41, Cameron JA
stated:
“
...
once
the
applicant
proves
the
three
requisites (order,
service
and
non-compliance)
unless
the
respondent
provides
evidence
raising a reasonable
doubt
as
to
whether
non-compliance was
wilful
and
mala fide,
the
requisites of contempt
will
have
been
established.
The
sole
change is
that
the respondent
no
longer
bears
a legal
burden
to disprove wilfulness and mala
fides on balance of probabilities, but need
only
lead
evidence
that
establishes
a
reasonable
doubt”.
[28]
The Respondents were required, in terms of the Order, to remove the
offending materials, vehicles, machines and equipment on
or before 06
February 2014, which they failed to do. This conduct is in clear
wilful disregard of the Order of this Court. Wilfulness,
in my
respectful view, presupposes
mala
fides.
In Chetcutti v
Chetcutti
[2001] 1 All SA 75
(Tk) the Court held that the party who
has failed to comply with a court order has the onus to rebut the
presumption of wilfulness
presumed to exist upon such non-compliance.
On the authorities, the Respondents had a duty to advance evidence
establishing a reasonable
doubt and they have not done so. The
contempt is consequently proven beyond reasonable doubt.
IMPORTANCE OF THE CIVIL CONTEMPT
PROCEDURE:
[29]
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders [Fakie NO,
supra,
par. 42 (a)].
[30]
Courts of law must be able to dispense justice without improper or
extraneous influences, and justice can be properly upheld
through the
courts only if they enjoy the respect and confidence of the public.
If the respect and authority of a court is undermined,
the public
interest itself is undermined, for the courts exist in the interest
of the wellbeing of the whole community [S v Tromp,
1996( 1 ) SA 646
(N) 652 G-H] .
[31]
It is, accordingly, vital to the administration of justice that those
affected by court orders obey them and disregard cannot
be tolerated.
[32]
The Order of 28 January 2014 is clear and unambiguous and capable of
enforcement. [Thutha v Thutha, 2008(3) SA 494 (TkH)].
ULTERIOR MOTIVE ALLEGED:
[33]
The Respondents have accused the Applicants of having an ulterior
motive and abusing the court process by bringing this application.
The Respondents allege, both in their papers and written submissions,
that these proceedings were brought against the Respondents
with a
view to force them to sell the property to the Applicants in order to
include the property in the impending so-called Crane-Valley
project,
a development project undertaken by the First Applicant. It seems
that there was a proposal to sell the property, which
proposal was
not pursued. It remained just that a proposal made without prejudice.
I consequently remain unpersuaded that the Applicants
have an
ulterior purpose. The issue should therefore not detain me any
further.
[34]
I now turn to the Respondents’ application to file a second
further affidavit. I do so hereunder.
APPLICATION TO FILE A SECOND FURTHER AFFIDAVIT:
[35]
On 27
February
2015
the
Respondents
delivered
an
application
to
tile
a
second
further
affidavit.
The
Applicants
delivered
an
affidavit
in
answer to the
Respondents’
application
for leave
to
file a second
further
affidavit.
[36]
I dismissed the Respondents’ application to file a second
further affidavit and undertook to give my reasons in this
judgment.
The reasons follow.
[37]
Firstly, the Respondents’ purpose of applying to file a second
further affidavit is “
...to present important facts in the
form of photographs to dispute the allegation that the respondents
are in contempt of court”
.
[38]
Secondly, the Respondents deemed it in the interests of justice that
this Court should have regard to the “pictures”
which
were taken by Boitumelo, the deponent to the second further
affidavit, before I hand down judgment which was reserved.
[39]
In motion proceedings generally three sets of affidavits are
permitted. These are the founding, opposing/answering and replying
affidavits. In terms of Rule 6( 5) (e) of the Uniform Rules the court
may permit the filing of further affidavits. Whether to allow
a
further set of affidavits is in the Court’s discretion.
[Erasmus, Superior Court Practice, Commentary on Rule 6(5) (e)
at
page B 1-47], Standard Bank of SA Ltd v Sewpersadh and Another,
2005
(4) SA 148
(CPD) at paras. [9], [10] and [13] 153H-154J. Sealed
Africa (Pty) Ltd v Kelly and Another, 2006(3) SA 65 (WLD), para. 4 at
67B-E,
James Brown & Hamer (Pty) Ltd v Simmons, N.O.,
1963 (4) SA
656
(AD) at 660D-H.
[40]
The law on the filing of further affidavits is well settled. In this
regard the following factors will be taken into account
by the Court:
40.1 it is basically a question of fairness to both
sides [Milne NO v Fabric House (Pty) Ltd, 1957(3) SA 63(N) at 65A];
40.2 the materiality of the evidence contained in the
proffered affidavit;
40.3 it is only in exceptional circumstances that a
fourth set of affidavits will be received. [Transvaal Racing Club v
Jockey Club
of South Africa, 1958(3) SA 599 at 604 B-D; Erasmus
Superior Court Practice,
supra,
f t 6].
40.4 In Avnit v First Rand Bank Ltd (20233/14)
[2014]
ZASCA 132
(23 September 2014) at par. 5, the concept of ‘
exceptional
circumstances’
was recently explained by the Supreme
Court of Appeal thus:
“
What
is
ordinarily
contemplated
by
the
words
‘
exceptional circumstances’
is
something
out
of the
ordinary and of an unusual
nature:
something
which
is
expected in the
sense
that the
general
rule
does
not
apply to it;
something uncommon,
rare
or
different”
.
40.5 “
There should in each
case
be a
proper
and
satisfactory
explanation which negatives
‘
mala
fides’ or
culpable remissness
as
to the cause
of
the facts or
information
not having
been put before the Court at an earlier stage”.
[Erasmus
supra,
Nick’s Fishmonger Holdings (Pty) Ltd
v Fish Diner in Bryanston CC, 2009 (5) 629 (W) at 641G-6420].
40.6 “
Where
an
affidavit
is
tendered
both
late
and
out
of
its
ordinary sequence, the party
tendering it is
seeking, not a right,
but
an indulgence
from
the Court. He
or she must
explain why
it is
out
of
time and convince the court that
in
all circumstances of the
case
it
should be
received”.
(Transvaal Racing Club v Jockey Club of South
Africa
supra
)
.
40.7 “
The
Honourable Court
must
be
satisfied that
no
prejudice
is
caused
by
the
filing
of the
late
affidavit
that
cannot
be remedied
by
an
appropriate
order
as
to costs”.
(Erasmus,
supra
)
[41]
As far back as July 2014 the Respondents filed an answering affidavit
in which no issue regarding the photographs was taken.
The
Respondents, I must point out, were aware of the photographs the
Applicants had annexed to their founding papers. I find no
plausible
reason for not dealing with the question of photographs by the
Respondents at the stage of answering in July 2014.
[42]
The photographs were not material to the Respondents’ case. In
fact, the photographs confirm the Respondents’ proven
non-compliance with the Order. The Respondents should have produced
and presented photographs before judgment was reserved, at
the latest
when the Respondents delivered a further supplementary affidavit in
January 2015. I found that there were no exceptional
circumstances
warranting admission of the second further affidavit. I therefore
remained unconvinced that the second further affidavit
should be
received in evidence.
[43]
With a view I have taken of the matter I do not wish to pronounce on
the alleged existence of a dispute of fact raised by the
Respondents
save to state that substantively, there is none. If there was one, it
had, procedurally, to be raised at the beginning
of argument. That
was not done.
[44]
I now revert to the contempt proceedings.
[45]
I find that contempt has been established by the Applicants beyond
reasonable doubt. The First and Second Respondents are accordingly
found to have been in contempt of the Order of this Court dated 28
January 2014, under case number 13699/2013.
[46]
In the result I make the following Order:
46.1 The First and Second Respondents be and are hereby
found to be in contempt of the Order issued out of this Court on 28
January
2014 by Murphy J under case number 13699/2013.
46.2 Boitumelo Charmain Mkonza (ID ….) in her
capacities as a trustee of the First Respondent and director of the
Second
Respondent is committed to immediate imprisonment for that
contempt of this Court for a period of fifteen (15) days.
46.3 Respondent and directors of the Second Respondent
are committed to imprisonment for contempt of this Court for a period
of
thirty (30) days:
46.3.1 Kethukhuthula Mkonza (ID ….); and
46.3.2 Nkosinathi Owen Mkonza (ID ….).
46.4 The imprisonment ordered above, which shall also be
served in full, is suspended for 2 (two) years on conditions that:
46.4.1 The First and Second Respondents fully and
strictly comply with the Order issued out of this Court on 28 January
2014 by
Murphy J under case number 13699/2013 within 30 (thirty) days
of the date of this Order; and
46.4.2 The First and Second Respondents comply fully
with the conditions on which they are to allow the Applicants to
inspect the
property to verify compliance with this Order imposed
below.
46.5 The compliance with the order of Murphy J ordered
above relates to the entirety of that Order and with regard to parts
1.1,
1.2 and l.3 thereof shall include:
46.5.1
Regarding part 1.1 of the Order:
The removal from Portion [...] Nooitgedacht of:
46.5.1.1
all
commercial and construction
vehicles;
46.5.1.2
all
material, machines and equipment
related to the unlawful use of the property, including pipes, cables,
cable drums, trunking, manholes,
manhole covers, bricks, building
materials and related rubble.
46.5.2.
Regarding part 1 .2 of the Order
:
46.5.2.1 Cessation of the use of Portion [...]
Nooitgedacht for any purpose impermissible in terms of the National
Environmental
Management Act, 1998 (Act 107 of 1998}, the title
conditions applicable to the property and/or the zoning of the
property including:
46.5.2.1.1 Use for business and/or industrial purposes;
46.5.2.1.2 Use for the dumping and/or storage of cement,
cement columns and other materials not related exclusively to
agricultural
or residential use; and
46.5.2.1.3 Use for accommodating persons and/or storing
business/industrial goods in structures/buildings erected in
contravention
of the title conditions of the property without
building plans approved by the local authority.
46.5.2.2 Removal of all buildings, partially completed
buildings, foundations for buildings, building materials and rubble
related
to buildings in contravention of title condition 2 that
provides that: “
Not
more
than
one
dwelling
house together with such outbuildings as are
ordinarily
required
to
be
used
in
connection therewith shall be erected on the land”
and/or
for which no building plans have been approved by the local
authority.
46.5.3
Regarding part 1.3 of the Order:
46.5.3.1 Removal of all cement, cement columns and other
rubble introduced onto the property after 28 January 2014;
46.5.3.2 Not commencing or recommencing with the use of
Portion [...] Nooitgedacht in any way impermissible in terms of the
Environmental
Management Act, 1998 (Act 107 of 1998), the title
conditions applicable to the property and/or the zoning of the
property, including
the uses listed in 46.5.2.1 above.
47.6 The Applicants are herewith authorised to enter
onto and inspect Portion [...] Nooitgedacht for purposes of verifying
compliance
with this Order on the following conditions:
47.6.1 Such inspection must be undertaken no less than
30 (thirty) days from the date of this Order;
47.6.2 Such inspection must be undertaken between 08h00
and 17h00 on a week’s day;
47.6.3 The Applicants must give the Respondents at least
forty eight (48) hours written notice of such inspection and who will
be
undertaking the inspection on the Applicant’ s behalf;
47.6.4 The Applicants may, in their exclusive
discretion, record their inspection of the property whether
photographically or otherwise;
47.6.5 The Respondents must give the Applicants and/or
their representatives unfettered access to all parts of the property
and
all buildings thereon at the time of the Applicants' choosing
subject only to the Applicants having complied with the conditions
herein imposed;
47.6.6 A representative of the Respondents shall
accompany the Applicants and/or their representatives on the
inspection.
47.7 Should the First and/or Second Respondent fail to
strictly comply with this Order including the conditions of
inspection aforementioned
and/or in any way breach the conditions of
suspension imposed herein, the Applicants may approach the above
Honourable Court for
an order for the said person’s committal
to prison, on the same papers, supplemented as necessary.
47.8 The First and Second Respondents are ordered to pay
the costs of this application on a scale as between attorney and own
client,
jointly and severally, the one paying, the others to be
absolved.
[48]
As regards the costs of the interlocutory application heard on 31
March 2015, I make the following Order:
48.1 The First and Second Respondents are ordered to pay
the taxed costs of the interlocutory application heard on 31 March
2015,
inclusive of the costs of preparation of opposing papers, and
the costs of the Applicants' attorney’s travel from Prince
Albert in the Western Cape, on a party and party scale.
____________________________
M D MOHLAMONYANE
[Acting Judge of the High Court of
South Africa,
Gauteng Division, Pretoria]
APPEARANCES:
For the Applicants: Mr G. Erasmus instructed by Erasmus
Attorneys, Pretoria and Prince Albert.
For the First and Second Respondents: Adv. C.
Tshavhungwa instructed by Tshisevhe Gwina Ratshimbilani Inc.
Johannesburg.