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[2015] ZAFSHC 230
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Crous and Another v Itau Soya (EDMS) BPK (3797/2013) [2015] ZAFSHC 230 (26 November 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case number: 3797/2013
DATE: 26 NOVEMBER 2015
In the matter between:
JACOBUS PETRUS
CROUS
.............................................................................................
1st
Applicant
FRANCIS GEORGE
DILLEY
.........................................................................................
2nd
Applicant
And
ITAU SOYA (EDMS)
BPK
....................................................................................................
Respondent
HEARD ON: 5 OCTOBER 2015
JUDGMENT BY: RAMPAI, J
DELIVERED ON: 26 NOVEMBER 2015
[1] These proceedings concerned an
application for leave to appeal. The applicant, the first respondent
in the main application,
appeals against the whole of the judgment I
gave and the order I made against him. The judgment in question was
delivered on 14
May 2015. The respondent, the applicant in the main
application, opposes the current application.
[2] The second respondent in the main
application, cited as the second applicant herein, was not before me
in the current application
notwithstanding the formal heading of the
notice in terms of Rule 49(1)(b) filed on 9 July 2015. On 28 July
2015 the second respondent
filed a sworn statement in which he
clarified that he was not the second applicant in these proceedings
as the aforesaid notice
appeared to suggest.
[3] The order I made on 14 May 2015
reads as follows:
“1. The respondents are found
guilty of contempt of court;
2. The first respondent is sentenced to
3 months imprisonment wholly suspended for two years on the first
condition that he returns
the required books to the applicant within
21 calendar days of this order and on the second condition that he is
not again found
guilty of contempt of court committed during the
period of suspension;
3. The second respondent is, subject to
paragraph 79.4 infra, cautioned and discharged;
4. The respondents are directed to pay
the costs of the application jointly and severally, the one paying
the other to be absolved.”
[4] The applicant was aggrieved by the
verdict as well as the sentence - hence this application.
[5] The grounds on which the applicant
seeks leave to appeal and the criticisms of my judgment were embodied
in a 9 page document
described as:
“Kennisgewing van Aansoek vir
Verlof om te Appelleer.”
I have taken note of all of them.
There was nothing new in them. I considered all of them in my
judgment. Therefore, I deem it
unnecessary to deal with them at
length in this judgment. I abide by my judgment.
[6] Mr. Williams, counsel for the
applicant, dealt with five points of criticism on the basis of which
he submitted that the order
was untenable as regards the verdict and
the sentence. The thrust of the critique was that it was practically
impossible for the
applicant to comply with the court order because
he no longer had the respondent’s books in his actual
possession.
[7] Mr. Reinders, counsel for the
respondent, submitted that it was never the case of Mr. Gouws, the
current applicant, that he
could no longer return the books to Itau,
the current respondent, because, as it was now argued, he had already
destroyed them
by the time the court order was made.
[8] The essence of the defence put up
by Mr. Gouws was that he and Mr. Dilley, the second respondent in the
main application, left
the books of Itau on the table in the office
the day they vacated the factory premises. I rejected his defence as
false in my
judgment. Mr Gouws was shown to be an untruthful
witness. Among others, he used secret books, he sold his employer’s
goods
and pocketed the money. Moreover, he frustrated the very
meeting where the handover was supposed to take place. Such a
deceitful
character was unlikely to leave cash books on the
employer’s table or desk knowing all too well that such books
would certainly
and seriously incriminate him. However, now that his
dishonest conduct has been exposed there is no more any need for him
to conceal
the books. All he has to do now is to return the books to
the respondent. That is the right thing to do.
[9] As Mr. Reinders correctly
submitted, it was never the pleaded case of the applicant that he
could no longer physically return
the books because they no longer
existed. There was virtually no evidence as to where, when, how and
by whom the books were destroyed,
if ever they were. In the absence
of credible and reliable evidence of destruction, the submission that
it was practically impossible
for the applicant to comply with the
court order was speculative, baseless and hollow argument. If the
books were indeed destroyed
before the court order was made, then the
applicant only has himself to blame for not candidly taking me in his
confidence. Neither
in his answering affidavit nor in his testimony
did he venture to say that he had destroyed the books which was why
he could no
longer return them to the respondent.
[10] There is one further important and
basic consideration that must be brought to account in an application
of this nature. There
was absolutely no submission, written or oral,
that I had committed any misdirection let alone a material
misdirection that vitiated
my judgment. In the absence of a material
and appealable misdirection either on a question of law or matter of
fact an application
for leave to appeal cannot succeed.
[11] In the circumstances I am not
persuaded that the matter has a reasonable prospect of success on
appeal. Given the peculiar
circumstances of this particular case, I
am of the firm view that no other reasonable court would come to a
different conclusion.
[12] Accordingly I make the following
order:
12.1 The application for leave to
appeal is dismissed.
12.2 The applicant is directed to pay
the costs.
M.H. RAMPAI, J
On behalf of applicant: Adv. A
Williams
Instructed by: Hill McHardy &
Herbst Inc
Bloemfontein
On behalf of respondent: Adv. S.J.
Reinders
Instructed by: Rossouws Attorneys
Bloemfontein