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[2015] ZAKZDHC 76
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McHendry v Greef and Another (14231/14) [2015] ZAKZDHC 76 (17 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
CASE
NO: 14231/14
DATE:
17 SEPTEMBER 2015
In
the matter between:
PETER
McHENDRY
..........................................................................................................
APPLICANT
And
WYNAND
LOUW
GREEF
.............................................................................
FFIRST
RESPONDENT
RENSCHE
GREEFF
.....................................................................................
SECOND
RESPONDENT
J
U D G M E N T
Date
of Judgment delivered: 17 September 2015
MARKS
AJ
[1]
The applicant Peter McHendry seeks an order holding the respondents,
Wynand Louw Greeff and Rensche Greeff, in contempt of an
order
granted in this Court by Lopes J on 27 September 2013 under Case
Number 11039/2012.
[2]
The first and second respondents seek an order granting condonation
for the late filing of a supplementary affidavit.
[3]
The applicant seeks an order that the entire contents of the first
and second respondents’ answering and confirmatory
affidavits
are struck out.
All
the above applications are opposed by the respective parties.
For
the purpose of clarity the parties will be referred to as they are
stated in the main application. Before dealing with
the merits
of the abovementioned applications, it is necessary to give a brief
summary or background.
[4]
BACKGROUND SUMMARY – FACTS NOT IN DISPUTE
4.1
On 27 September 2013 an order was granted per Lopes J, which contains
reciprocal interdicts
between the applicant and the respondents from
certain conduct, action and activities.
4.2
On 10 December 2014, the applicant launched the main application for
contempt of court flowing
directly from this order.
4.3
On 16 February 2015 Balton J adjourned the application to 10 April
2015 and an order was
granted by consent relating to the filing and
service of supplementary affidavits and annexures which specified
time frames.
The respondents filed and served their
supplementary affidavit two days late which was not accepted by the
applicant. The
respondents therefore seek condonation from this
Court for the late filing of their supplementary affidavit, which is
opposed.
4.4
The applicant has launched an application to strike out the entire
contents of the respondents’
replying affidavit and
confirmatory affidavit, which in turn is opposed. The matter
was set down on the opposed roll on 8
September 2015.
[5]
ARGUMENT
5.1
The applicant Mr McHendry represented himself and Mr
Crots
SC represented the respondents. Before the matter proceeded Mr
McHendry brought the Court’s attention to the letter
that had
been delivered to the registrar for the Judge President’s
attention and sought clarity thereon. The letter
had not been
served on the respondents. Mr
Crots
was shown the letter in court. The Court then ruled that all
the applications would be heard together.
5.2
Notwithstanding the fact that the applicant had not filed its heads
of argument or practice
note as per the Practice Directives, there
being no prejudice to either party, the Court deemed it expedient to
condone the non-adherence
to the Practice Directives. Moreover
Mr McHendry is a lay person and indicated he was prepared to proceed
to argue the matter
which he did most eloquently. The matter
was ripe for hearing and in the interests of the administration of
justice proceeded
and was argued by the parties.
[6]
It is expedient to deal with the condonation and striking out
applications before dealing with the main application of contempt
of
court.
[
7
]
APPLICATION FOR CONDONATION
7.1
The respondents had filed the supplementary
affidavit two days late. The reason for the late filing
advanced by the
respondents and Mr
Crots
in oral argument was that logistical problems were experienced.
The second respondent was in Cape Town and the instructing
attorneys
experienced difficulty in obtaining her signature. Mr
Crots
argued further that if condonation was not granted the respondents
would be prejudiced in that it effectively would close
the door
to their opposition of the main application and the issues would not
be properly ventilated.
7.2
The applicant opposed the application and in oral argument he
advanced the reason that this
Court should not grant condonation is
that the instructing attorneys are legally qualified and should
strictly adhere to court
orders, the rules and the practice
directives. He went on to explain that in various ongoing
litigation between him and the
respondents, this same Court has not
afforded him any indulgences in the past.
7.3
It is in the interests of the administration of justice that the
well-known and well established
general rules regarding the number of
sets and the proper sequence of affidavits should ordinarily be
observed. Where an
affidavit is tendered late the party
tendering it is seeking an indulgence and must advance valid reasons
why the affidavit is
out of time.
7.4
It is trite that the court should be slow not to grant condonation as
it would effectively
close the door on a litigant. The main
application in this matter is a serious charge being contempt of an
order of court
with serious penalties which could be imposed.
If condonation is not granted, it would be seriously prejudicial to
the respondents’
case. Moreover, this would prevent the
matter being properly ventilated and goes against the
audi
alterem partem
rule. To condone
the late filing of the respondents’ supplementary affidavit on
the other hand will not cause prejudice
to the applicant’s
case. Moreover, the reasons advanced for the late filing are
acceptable. The reason advanced
by Mr McHendry that he has not
been afforded such indulgences in the past is not valid in law.
Therefore the Court grants
condonation for the late filing of the
respondents’ supplementary affidavit.
[8]
STRIKING
OUT APPLICATION
8.1
The applicant seeks an order that the entire contents of the
respondents’ affidavits
be struck out as they do not deal with
the allegations and averments in the applicant’s founding
affidavit as is required
in Rule 6(15) of the Uniform Rules of
Court. The applicant argued that it is incumbent upon the
respondents to deny or admit
each and every allegation or averment in
the applicant’s founding affidavit. Moreover the second
respondent was to
file her own answering affidavit and not a
confirmatory affidavit as she is the main culprit in the contempt
application.
8.2
The respondents contend, and Mr
Crots
argued, that the first respondent deposed to the answering affidavit
dealing with the averments contained in the applicant’s
papers
and the second respondent clearly deposed to a confirmatory affidavit
confirming all the averments which related to her.
Further that
this is sound legal practice in order to prevent unnecessary
duplications.
8.3
There are two requirements to be satisfied in order for the matter to
be struck out.
The matter sought to be struck out must indeed
be scandalous, vexatious or irrelevant and the Court must be
satisfied that if the
matter is not struck out, the party seeking
such relief will be prejudiced thereby.
[1]
8.4.
Rule 6(15) of the Uniform Rules of Court state that the requirements
for a respondent’s
answering affidavit, which deals with the
allegations contained in the opponent’s founding affidavit, are
the same as that
for the applicant. If the respondents’
affidavit fails to admit or deny, or confess and avoid, allegations
in the applicant’s
affidavit, the Court will for the purposes
of the application, accept the applicant’s allegations as
correct. However,
a statement of lack of knowledge coupled with
a challenge to the applicant to prove its case does not amount to a
denial.
8.5
The answering affidavit merely denies all the alleged allegations and
averments in the applicant’s
founding affidavit. Further
a point
in limine
is raised that the annexures referred to in the founding affidavit
are not attached to the papers and due to these facts and the
fact
that the allegations are vague, lack clarity and are unsubstantial,
they are unable to answer each and every allegation.
This they
are entitled to do. The applicant has failed to prove that the
contents of the affidavit are scandalous, vexatious
or irrelevant and
therefore the application to strike out falls to be dismissed.
[9]
MAIN APPLICATION - CONTEMPT OF COURT
9.1
During argument the applicant handed in a further supplementary
affidavit relating to another
matter where the parties are cited as
Omnium Investment Trust represented by the applicant and the same
respondents. Mr Crots,
having had sight of the affidavit for
the first time in court, objected to the handing in thereof.
9.2
This further supplementary affidavit of the applicant pertains to a
tenant cancelling a
lease due to the respondents defaming him.
It was received and stamped by the registrar on 4 September 2015 but
never served
on the respondents. The contents of this further
affidavit are speculative and based on suspicion. The annexures
attached
purporting to be electronic cellphone messages, are
nonsensical and in no way assists the applicant in this application.
In any event, notwithstanding the fact that the applicant is a
layman, the Court cannot grant this further indulgence to the
applicant.
The applicant has already received an indulgence in
filing a supplementary affidavit with annexures by the Court on 16
February
2015. Moreover, the affidavit does not assist the
applicant’s case for the reasons aforementioned.
9.3
The legal position relating to contempt of an order of court was
succinctly stated by Cameron
JA in
Fakie
NO v CCII Systems (Pty) Ltd
[2]
that to disobey a court order unlawfully and intentionally is an
offence referred to as contempt of court. The standard of
proof
required is for the applicant to prove all the elements of contempt
beyond a reasonable doubt. Put differently, the
test which
disobedience of a civil court order constitutes contempt has come to
be stated as whether the “breach was committed
deliberately and
mala
fide
”.
[3]
9.4
The issues that require determination are whether the applicant has
proved beyond reasonable
doubt that firstly there was non-compliance
with the court order and secondly whether the non-compliance was
unlawful and
mala fide
.
9.5
The contents of the court order and the respondents’ knowledge
of the contents thereof
have been admitted. Non-compliance and
wilfulness and
mala fides
is
disputed. The respondents deny all the averments relating to
the alleged contravention of the court order.
9.6
In motion proceedings the affidavits constitute both the pleadings
and the evidence.
The issues and the averments, in support of
the parties’ cases, should appear clearly therefrom.
9.7
To state that the founding affidavit of the applicant is unclear is
an understatement.
For the most part it mentions the history of
the acrimonious relationship between the parties, and accuses police
officials and
others of being corrupt, and contains scandalous and
vexatious matter. The applicant does however aver that the
respondents
have stolen and opened his mail, listened to his
cellphone conversations, intercepted his electronic data, harassed
and physically
assaulted him, committed fraud and corruption and
other serious transgressions. The affidavit refers to annexures
which are
not attached to the papers either. Besides the
generality and vagueness of these serious averments, it is also
prudent to
note that most of these averments are based on
inadmissible unsubstantiated hearsay evidence, speculation and
suspicion.
9.8
The applicant’s supplementary affidavit does not add any
content to the claims made
in the founding affidavit. Instead,
the supplementary affidavit objects to the first respondent’s
answering affidavit
and requests the court to order the respondents
to answer allegations pointedly.
9.9
The applicant argued that the hearsay evidence could be rendered
admissible if the witnesses
who have informed him of these
transgressions could be subpoenaed to give oral evidence as they are
unwilling to depose to any
affidavit. He requested to refer the
application for oral evidence in order for the Court to investigate
as he merely
wants to get to the truth of the matter.
However, the purpose of motion proceedings is not to investigate
cases for the litigants.
Motion proceedings are used by the
litigants to resolve their disputes because it is considered to be
more expeditious and less
expensive when the material facts are not
in dispute.
9.10
The only admissible evidence in the applicant’s founding
affidavit pertains to the allegations
of assault. Moreover, it
is common cause that this alleged assault took place BEFORE the order
was granted by Lopes J on
27 September 2013.
9.11
It is trite that the applicant must prove his case in his founding
papers. For the reasons aforementioned,
the applicant has
failed to prove any of the alleged transgressions of the court order
granted on 27 September 2013. Moreover,
the calling of oral
evidence of reluctant witnesses who have not deposed to any
affidavit, to be cross-examined in court will not
tip the scales in
the applicant’s favour. Moreover, it is not the function
of this Court to allow this process for
investigative purposes.
The applicant has failed to discharge the
onus
upon him and therefore the application for contempt of court falls to
be dismissed.
[10]
COSTS
10.1
In
considering the issue of costs, the Court has a discretion which is
to be exercised judiciously. The Court is required
to take into
consideration the circumstances of the case, the issues at hand, the
conduct of the parties and any other relevant
circumstances.
[4]
10.2
The general rule is that the costs follow the result. In other
words, the party which is successful
should also be entitled to a
cost order. I see no reason to deviate from this principle.
10.3
Mr
Crots
requested the Court to consider a punitive order as to costs on the
scale of attorney and client as he contended that the applications
brought by the applicant were vexatious and the respondents should
not be out of pocket.
10.4
The applicant contended that the Court should not grant a punitive
order as his contentions were in
good faith.
10.5
When proceedings are found to be vexatious this may justify a costs
order as between attorney and client.
The courts have given an
extended meaning to the expression “vexatious proceedings”
such as when the conduct of a litigant
has resulted in “unnecessary
trouble which the other side ought not to bear”.
[5]
10.6
However, the Court must guard against censuring a party by way of a
special cost order when with the
benefit of hindsight a course of
action taken by a litigant turns out to have been a lost cause.
[6]
10.7
Whist the Court should express its displeasure in an obvious abuse of
its process in punishing those
who bring unsubstantial applications
to court, the Court is mindful that each person is equal before the
law and has and should
have access to justice.
10.8
For the abovementioned reason, the Court is not going to grant a
punitive cost order in this matter.
The costs will be awarded
on a party and party scale.
[11]
ORDER
11.1
The application for condonation for the
late filing of the respondents’ affidavit is granted.
11.2
The applicant is directed to pay the costs
of the respondents’ application for condonation.
11.3
The application for striking out the entire
contents of the first and second respondents’ answering and
confirmatory affidavits
is dismissed.
11.4The
applicant is ordered to pay the costs of the application to strike
out.
11.5The
application for contempt of court is dismissed.
11.6
The applicant is directed to pay the costs
of the application for contempt of court, including the reserved
costs occasioned by
the adjournments on the 16 of February 2015 and
10 April 2015.
MARKS
AJ
APPEARANCES
Appearing
on behalf of the applicant: Mr McHendry in person.
Counsel for the
respondents: Mr E Crots SC,
instructed by
Garlic & Bousfield Inc, Durban.
Date
of Hearing: 8 September 2015.
Judgment
handed down on: 17 September 2015.
[1]
NDPP
v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 308.
[2]
[2006] ZASCA 52
;
2006
(4) SA 326
SCA para 42.
[3]
Fakie
NO v CCII (supra)
para9
.
[4]
Fripp
v Gibbon & Co.
1913 AD 354.
[5]
Johannesburg
City Council v Television & Electrical Distributors
(Pty)
Ltd and another
1997
(1) SA 157
(A) 177D-E.
[6]
Johannesburg
City Council (supra)
177E-F.