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[2014] ZAGPPHC 396
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Kies v Strydom and Other (25846/2014) [2014] ZAGPPHC 396 (19 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 25846/2014
DATE: 19 JUNE 2014
NOT REPORTABLE
OF INTEREST TO OTHER
JUDGES
In the matter
between:
THEODORE
FREDERIK
KIES........................................................................................................
Applicant
and
PIETER
HENDRIK
STRYDOM...........................................................................................
First
Respondent
JOHN
RODERICK GRAEME
POLSON
.........................................................................
Second
Respondent
LOUIS
STRYDOM
................................................................................................................
Third
Respondent
DEON
BOTHA
......................................................................................................................
Fourth
Respondent
SANDRA
JOAN
McKENZIE
.................................................................................................
Fifth
Respondent
JUDGMENT
THOBANE, AJ
[1] On the 22nd
January 2014 the applicant launched an application under case number
4363/2014 in this court for an order in the
following terms:
1.1. That the
sequestration order granted against the applicant on 28th February
2012, under case no. 16679/10 is rescinded, alternatively
that
applicant may apply for his rehabilitation.
1.2. That
respondents are ordered to pay the costs of this application in an
attorney and client scale. Applicant to appoint counsel
prior to
replying affidavit,
1.3. Further and/or
alternative relief.
[2] The applicant is
an adult male business person, who was on the 28th February 2012, by
order of this Court, finally sequestrated.
[3] According to the
applicant, respondents 1 to 3 are trustees of Allegro Bridging (PTY)
Ltd, an unregistered credit provider from
whom he, as a developer,
obtained development finance. Respondents 4 and 5 are trustees in his
estate.
BACKGROUND
[4] These
proceedings have their origins from the sequestration of the
applicant. What is discernible and clear is that the applicant
is
unhappy with the order of sequestration, which he opposed with vigor.
His opinion is that it should not have been granted. His
behavior,
which will follow here under, is indicative of his resolve to stop at
nothing to have the order overturned.
[5] On the 9th
September 2012, a few months after his sequestration, the applicant
launched an application against 10 entities plus
respondents one to
four in these proceedings. In total there were fourteen respondents
in that application. The applicant sought
an order for the following
relief:
(a) to set aside
the sequestration order;
(b) award damages
to the applicant
[6] On the 19th
February 2013 the Honorable Vorster, AJ, dismissed the application
and made the following order:
"Dat die
aansoek word van die handgewys met koste insiuitend koste van twee
advokate"
[7]
Thereafter in March 2013 the applicant issued a summons against
various defendants, 18 in total, including the respondents herein,
where he claimed payment in the sum of R94 905 762,00. The cause of
action was wrongful sequestration. The applicant took various
irregular steps in that matter. He,
inter
alia,
served
a Notice in terms of Rule 47, a Notice in terms of Rule 32 as well as
a Notice of Set Down.
[8] The respondents
herein along with the 14 others, in that matter applied to court, as
they were entitled to do, for relief. The
following order was
accordingly granted by Honorable Justice Rabie:
1. THAT the
respondent's notice of application for security for costs (rule 47)
and summary judgment (rule 32) be and is hereby
set aside.
2. THAT the
respondent's notice of application for date of set down rule 6(f) be
and is hereby set aside.
3. THAT the
respondent pays the costs of this application.
4.
THAT this order be served by the Sheriff or Deputy Sheriff at 479B
Milner Street, Waterkloof
,
Pretoria.
[9] On the 7th
January 2013 the applicant launched another application. The second
applicant in that matter was Theo & Izak
Ontwikkeling CC,
(In liquidation). According to the Notice of Motion, the following
order was sought:
1. That
respondent no. 9, Allegro Bridging (PTY) Ltd, withdraw their abortive
claim of R39 420 351,90 lodged with the Master of
the High Court on
file No. 2637/09, alternatively have the claim expunged.
2. That
respondents 1-14 withdraw their incorrect claim of R22 961 075,89
under case number 16679/2010, or have their claim expunged.
[10] The first to
fourth respondents herein, were respondents number eleven to fourteen
respectively, in the application referred
to above. The fifth
respondent was not a party in those proceedings.
[11]
The respondents opposed the application referred to above and brought
a counter application, seeking an order interdicting
the applicant
from
inter alia,
harassing
them. The application was dismissed with costs. The counter
application was granted with costs. I pause to indicate that
prior to
the granting of the order, the applicant had lodged various
complaints with, the Master, the SAPS, The Minister of Justice
as
well as the Law Society.
[12] The Honorable
Justice Mothle, on the 10th of April 2013, granted an order in the
following terms:
1. THAT the first
applicant be restrained from:
1.1. Harassing
the eleventh, twelfth and thirteen respondents;
1.2. Lodging
complaints against the eleventh, twelfth and thirteenth respondents
with the Master, the South African Police Service,
The Minister of
Justice and the Law Society without first having obtained the leave
of this Court to do so;
1.3.
Instituting any litigation against the eleventh, twelfth and
thirteenth respondents, the fourteenth and fifteenth respondent
or or
sixteenth
,
seventeenth
and eighteenth respondents, without having obtained the leave if this
Court to do so.
2. THAT the first
applicant pays the costs of two counsel in this application.
3. THAT the
application be and is hereby dismissed with costs of two counsel.
[13]
The application referred to in 11
supra,
was
argued on the 8th April 2013. Judgment was reserved and only
delivered on the 10th April 2013. On the date on which the
application
was being argued, the 8th April 2013, the applicant
launched another application seeking, according to the Notice of
Motion,the
following order:
"That the
sequestration order that was granted in the North Gauteng High Court
under case No. 16679/10, made on the 28th February
2010, is uplifted.
[14] The first to
fourth respondents herein, were respondents eleventh to fourteenth
respectively, in the application referred to
13 above. The
application was opposed and the respondents, as they were within
their rights to do, filed a counter application
wherein they sought
an order holding the applicant in contempt of the Court order granted
on the 10th of April 2013, by the Honourable
Justice Mothle.
[15] The application
came before the Honourable Justice Potteriil, who on the 11th October
2013, granted an order in the following
terms:
1. DAT die
aansoek van die hand gewys word met koste;
2. DAT die teen
aansoek toegestaan word. Die applikant word verwys na 30 (dertig) dae
gevangenisetting maar word opgeskort op voorwaarde
dat die applikant
die interdik soos verwoord op p 151 van die stukke nakom;
3. DAT die
applikant die koste van die aansoek dra.
[16] On the 24th
June 2013, the applicant yet again, launched another application.
This time around it was against The Master of
the High Court as the
first respondent as well as Allegro Bridging (PTY) Ltd as the second
respondent. According to the Notice
of Motion, the order sought was
as follows:
"To grant
permission to applicant to proceed with an urgent investigation
pertaining an alleged illegal sale of applicants
immovable property
commonly known as Hornbill Close"
"Reversal of
registration"
"That all
proceedings is stayed in order to allow the Master of the High Court
to -convene a second meeting of creditors without
the constant
interference of respondents"
[17] The
respondents, again, launched a counter application in view of his
persistence. The matter came before the Honourable Justice
Murphy who
on the 27th January 2014, gave an order in the following terms:
1. THAT the main
application be and is hereby dismissed with costs.
2. THAT the
counter application is granted in the following terms:
2.1.
The applicant is ordered to pay all legal costs in respect of which
orders have been granted against him by this court and
for which he
is liable
,
prior
to proceeding with or instituting any further litigation against any
of the companies in the CMM or Allegro Group
,
the curators
and/trustees;
2.2. The
applicant is ordered to pay the costs of the counter application.
2.3. The
registrar shall not permit the applicant to file any papers in
relation to any matter whatsoever without first receiving
an
appropriate direction in that regard from the Deputy Judge President
of this division.
[18] After the issue
of the processes referred to in 16 above, two months later, on the
27th August 2013, the applicant launched
another application. The
application was headed "APPLICATION IN TERMS OF SECTION 116
(bis) SECTION 82 (8) OF THE INSOLVENCY
24/1936”. The
application was against the fourth respondent in these proceedings.
The applicant sought the following order:
"for a
declaratory order to compel the respondent to: submit documents as
requested in the notice served on respondent on 2-8-2013"
"submit
undertaking to reverse the registration of the property of the
applicant that we illegally sold, alternatively a undertaking
in
terms of the provisions of section 82(8) of the Insolvency Act"
"Declare
the 2nd meeting of the creditors void as it
was
held without the
compulsory presence of applicant as determined by law. Convene a
special meeting of creditors in the compulsory
presence of
applicant".
[19]
The application was opposed and the following
points
in limine
were
raised;
19.1. That the
applicant had issued the application without the requisite leave of
this court,
19.2.
That the applicant had no
locus
standi,
19.3. That there was
non joined in that the applicant had failed to cite other trustees,
19.4.
Lis pendens.
[20]
The matter has not progressed after the points
in
limine were
raised.
[21] In the mean
while, the applicant, served on the 16th August 2013, a process
issued out of the Constitutional Court. The first,
third and fourth
respondents herein were cited in that matter as first, second and
seventh respondents respectively. The said respondents
were then
obligated to oppose the Constitutional Court application. On the 23rd
October 2013 the Constitutional Court, through
the Senior Registrar,
issued out the following order:
"The
Constitutional Court has considered the application for direct
access. The application is dismissed as it is not in the
interest of
justice to hear the matter at this stage:
(a) The applicant
may apply for relief he seeks on appeal to the Full Bench of the High
Court or Supreme Court of appeal; and
(b) The applicant
has failed to provide compelling reasons for failing to exhaust these
processes before approaching this Court”.
The following
order is issued:
1. The
application is dismissed.
2. There is no
order as to costs.
[22] Armed with the
Constitutional Court Order and basing his latest application on the
finding of the Highest Court in the land,
the applicant launched
another ill advised and misguided application this time around
appealing the final sequestration order.
A notice in terms of Rule 30
was filed in view of the irregular path the applicant had gone down
on. The applicant withdrew the
appeal by serving a notice of
withdrawal. The respondent, as he was entitled to do, issued and
served a notice in terms of Rule
41 (1 )(c).
[23] The appeal
served before the Honorable Justice Preller on the 27th February
2014, who granted the following order:
"After
reading the argument on behaif of the respondent, the Court makes the
following order:
1. That it is
noted that the applicant has withdrawn his application,
2.The applicant
is ordered to pay the costs of the application, and that such costs
be on an attorney and client scale.
[24] On the 22nd
January 2014 the applicant issued a fresh application. There are
fifteen respondents cited in that matter. Respondent
one to five in
this matter are respondents ten to fourteen respectively in that
application. The applicant was advised through
numerous letters that
the application was in flagrant disregard of the interdict, the
contempt order as well as the costs order.
The applicant proceeded to
set the matter down for hearing. The applicant sought the following
relief:
1. That the
sequestration order granted against the applicant on 28 February
2012, under case No. 16679/10 is rescinded, alternatively
that
applicant may apply for his rehabilitation.
2. The respondents
are ordered to pay the cost of this application in an attorney and
client scale. Applicant appoint Counsel prior
to replying affidavit.
3. Further and/or
alternative relief.
[25] On the 30th
March 2014, the applicant launched the current proceedings, which are
opposed, wherein he sought the following
order:
That applicant, in
the interest of justice is granted consent by the Court to proceed
with the application to set aside a sequestration
order granted,
alternatively to obtain an order of compliance as set out in the
application for compliance.
Further and/or
alternative relief
[26] For purposes of
convenience as well as to save costs, it was agreed between the
parties, that the two matters, referred to
in 24 and 25 above, be
heard at the same time. On the opposing papers the respondents
launched a counter application for imprisonment
of the applicant on
account of him having acted in a contemptuous manner towards an order
of this court.
[27] In summary, the
following court orders are important, as well as their respective
dates, as they will be referred to in detail
later in this judgment:
1. granted by
Mothle, J, on the 10th April 2013, which I will refer to as the
Motlhe order,
2. granted by
Potterill, J, on the 11th October 2013, which I will refer to as the
Potterill order,
3. granted by
Murphy, J, on the 27th January 2014, which I will refer to as the
Murphy order,
ISSUES FOR
DETERMINATION
[28] There are three
applications before me,
1. The application
for rescission of a sequestration order, or that applicant may apply
for his rehabilitation, hereinafter referred
to as "the main
application,"
2. The counter
application for imprisonment,
3. The application
for consent to proceed with an application to set aside the
sequestration order or to obtain an order of compliance,
hereinafter
referred to as "the consent application".
[29] At the
commencement of the proceedings, I directed that the consent
application be considered first, followed by the counter
application
for imprisonment, and finally the main application. The reason being
that the parties had agreed that the matters be
heard at the same
time. It is also logical that the main application could not be
entertained with the consent application having
not been finalized.
The application for consent therefore was up for determination first.
This directive proved difficult because
all the three applications
were inextricably intertwined. What became clear was that it became
critical to determine if any of
the applications were properly before
court. I pause to indicate that the applicant did not enjoy legal
representation during the
proceedings. He indicated that he did not
have resources to procure services of a legal representative. He
indicated that he was
well conversant with legal proceedings having
been associated with courts through the deeds office where he worked
for many years,
and that he was capable of handling his own matter.
Throughout the proceedings, I gained the impression that he knew what
the issues
were and he was able to deal with questions directed at
him.
[30] A cursory look
at the date of issue of the main application as well as the consent
application point clearly at the fact that
there was a violation of
the order of this court. The Motlhe J, order is clear and
unambiguous. In 1.3. thereof, it restrains the
applicant from
instituting litigation against the 1st, 2nd and 3rd respondents (and
others), without the leave of this court. The
appellant argued before
me that he in fact did obtain such leave and he pointed me to a
letter penned by the Deputy Judge President,
dated the 6th March
2014.
The relevant
excerpts thereof read as follows;
I do not want
your issue to deal through correspondence. The court would be an
appropriate forum to deai with your issue.
I
therefore suggest that you should take whatever steps you deem fit to
protect your rights
."
The appellant argued
that this was a letter of consent or that this was tantamount to
leave. It was submitted on behalf of the respondents
that the letter
from the Deputy Judge President's office does not give the appellant
consent nor is it the requisite leave.
[31]
A brief history of engagement between the office of the Deputy Judge
President as well the applicant will place the respondents'
submission into better perspective. On the 25th February 2014, the
applicant wrote a letter to the Deputy Judge President. In that
letter he sketched his understanding of the issues and requested the
DJP to intervene. The letter to the DJP, was written while
the
applicant had already issued the main application, without any leave
whatsoever. In fact he attached a copy of the main application
to his
letter for the attention of the DJP. To make matters worse, the
letter was laced with blatant lies. The applicant stated
inter
alia
the
following:
1. That Hornbill
Close Sectional Title Development was irregularly sold,
2. That there was
consensus that the sequestration order was incorrectly granted,
3. That he was never
insolvent,
4. That the the main
application is unopposed.
The respondent
responded appropriately during the engagement with the DJP.
[31] When the
applicant wrote as aforementioned, there could not have been doubt in
his mind about the fact that he was stating
lies in that, he knew
that his court challenge that Hornbill Close Sectional Title
Development was irregularly sold, was dismissed
by this court. He
further knew that there never was consensus that the sequestration
order was incorrectly granted. That allegation
had been made before
in court papers which were not decided in his favor. The applicant
was fully aware that his insolvency was
confirmed by this court when
Southwood J, granted a final sequestration order. Further, there
could never have been doubt in his
mind, because he had challenged
his sequestration several times without success. The fact that he
never succeeded in all those
attempts could never have been lost to
him when he wrote to the DJP. Lastly, the applicant could never have
been under the misapprehension
that the main application was
unopposed as the notice to oppose was served personally on him. This
is over and above the fact that
the applicant failed to disclose
material facts in his letter to the DJP. In my view, he had a duty to
disclose to the DJP that
there is a court order, the Motlhe J order,
directing him to seek leave from the DJP, prior to proceeding against
the respondents
in this matter. He had a further duty to disclose
that there is an order, the Murphy J order, in terms of which he was
ordered
to pay costs prior to any litigation as well as the fact that
that order prohibited the registrar from issuing any processes
without
the direction of the DJP. The applicant could not explain to
the court, in view of the Murphy J order, how he managed to have the
main application issued from the registrar’s office without the
requisite permission.
[32] Repeatedly, the
applicant was warned by the respondents' legal representatives that
he had violated the court order and that
he was following an
incorrect procedure by proceeding without having obtained leave. He
failed to heed their warning.
[33] Following the
three way exchange of correspondence between the applicant, the
respondents' legal representative as well as
the DJP, in my view it
dawned on the applicant that the main application was issued without
leave, that is why he wrote to the
DJP. It is clear, as I have shown
above, that the letter he relies on as a letter of consent by the
DJP, is nothing else but a
letter telling the applicant that he
should do what is right in view of the orders that were made
previously against him.
[34] On the 30th
March 2014, the applicant launched the consent application. This was
in clear contempt of the Murphy J order granted
on the 27th January
2014, particularly 2.1 and 2.3. thereof. Although there are only two
respondents being The Master as well as
Allegro Bridging (PTY) Ltd,
in that matter, the Murphy J order affects the respondents in this
matter in view of the fact that
they are trustees and they are
referred to 2.1. of that order. The violated portions are to the
effect that the applicant must
pay all legal costs prior to him
instituting action against the trustees. Also, that the registrar is
barred from permitting the
filing of papers without an appreciate
direction of the DJP. It is evident that this application was in
clear violation because
the letter that the applicant relies on, is
not a direction to the registrar but a letter to the parties in their
three way exchange.
The other reason is that legal costs remain
unpaid to this day and this was conceded before me by the applicant.
[35] That the
applicant was found guilty of contempt of court by Potterill J on the
11th October 2013, and a term of 30 days imprisonment
imposed against
him but suspended on condition that he complies with the interdict,
(the Motlhe J order), is not in dispute.
THE LEGAL FRAMEWORK
[36]
It is trite that even in the Constitutional dispensation committal
for civil contempt is not in violation of the Constitution.
In order
to succeed in civil contempt proceedings the applicant had to prove
the terms of the order, knowledge of these terms by
the respondent,
and a failure by the respondent to comply with the terms of the
order. Upon proof of these requirements the presence
of willfulness
and bad faith on the part of the respondent would normally be
inferred, but the respondent could rebut this inference
by contrary
proof on a balance of probabilities.
Bannatyne v
Bannatyne
2003 (2) SA 809
(CC).
[37] Courts are
there for a reason. Citizens turn to courts for resolution of
disputes.
Often,
they have nothing to show for their resolved disputes except court
orders. It is important therefore that court orders be
respected at
all times. The dictum in
Naude NO and Another v
Mabetesi Construction (PTY) Ltd t/a CG Clvils and Another (5688/2010)
[2011] ZAFSHC 7
(20 January 2011),
where
Rampai, J, on 14 states:
"The
courts are supposed to act as vigilant sentinels of the order they
make. The dictates of any civilized system of civil
justice demand
that the courts must jealously guard the orders they make. It is in
the interest of the community at large to do
so. Respect for court
orders is the hallmark of any civilized system of civil justice. The
administration of justice would be brought
into disrepute if
directors of companies, who deliberately disobey the court orders
with impunity,were not severely punished.
-
Twentieth
Century Fox Film Corporation and Others v Playboy Fiims (Pty) Ltd and
another
1978 (3) SA 202
(W).
[38]
Failure to enforce court orders effectively has the potential to
undermine confidence in recourse to law as an instrument to
resolve
civil disputes and may thus impact negatively on the rule of law. S
v
Mamabolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC). Victoria Park Ratepayers Association v
Greyvenouw CC
[2004] 3 SA 623
(SE).
[39]
Contempt of a civil court order is committed when such an order is
unlawfully and intentionally to disobey disobeyed. This
type of
contempt of court is part of a broader offense, which can take many
forms, but the essence of which lies in violating the
dignity, repute
or authority of the court. The offense has in general terms received
a constitutional ‘stamp of approval’,
since the rule of
law - a founding value of the Constitution - ‘requires that the
dignity and authority of the courts, as
well as their capacity to
carry out their functions, should always be maintained’. S
v
Beyers
1968 (3) SA 70
(A). S v Mamabolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC). Coetzee
v Government of the Republic of South Africa 1995 (4) SA (CC).
[40]
The test as to whether disobedience of a civil order constitutes
contempt has come to be stated as, whether the breach was
committed
"deliberately and
mala
fidé'.
It
was emphasized in
S v Beyers
"that,
while the mere non compliance did not necessarily constitute
contempt, sustained disregard and flouting of a court order
could be
calculated to injure and diminish the authority and status of the
court
",
Steyn CJ. In
Fakie NO v CCII Systems (Pty) Ltd
2006 (4) SA (SCA),
it
was held that: Elaborating this, Plasket J pointed out in the
Victoria Park Ratepayers
case
that contempt of court has obvious implications for the effectiveness
and legitimacy of the legal system and the legal arm
of government:
there is thus a public interest element in every contempt committal.
He went on to explain that when viewed in the
constitutional context
-
‘
it
is clear that contempt of court is not merely a mechanism for the
enforcement of court orders. The jurisdiction of the superior
courts
to commit recalcitrant litigants for contempt of court when they fail
or refuse to obey court orders has at its heart the
very
effectiveness and legitimacy of the judicial system.... That, in
turn, means that the court called upon to commit such a litigant
for
his or her contempt is not only dealing with the individual interest
of the frustrated successful litigant but also
,
and importantly,
acting as guardian of the public interest’.
That in view of the
compelling nature of the stated expositions, a court in considering
committal for contempt of court can never
disavow the public
dimension of its order.
[41]
Cameron JA, as he then was, summarized in the
Facie
NO v CCII Systems (Pty) Ltd,
the
current position as:
(a) The civil
contempt procedure is a valuable and important mechanism for securing
compliance with court orders, and survives constitutional
scrutiny in
the form of a motion court application adapted to constitutional
requirements.
(b) The respondent
in such proceedings is not an ‘accused person’, but is
entitled to analogous protections as are appropriate
to motion
proceedings.
(c) In particular,
the applicant must prove the requisites of contempt (the order;
service or notice; non-compliance; and wilfulness
and mala fides)
beyond reasonable doubt.
(d) But once the
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides: should the respondent fail to advance
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
(e) A declarator and
other appropriate remedies remain available to a civil applicant on
proof on a balance of probabilities.
[42] The requisites
for granting an order of committal, that an applicant must meet have
been stated as follows:
1. That an order was
granted against the defendant,
2. That the
respondent was either served with the order or informed of the grant
of the order and could have no reasonable ground
for disbelieving
that information,
3. That the
respondent has either disobeyed the order or neglected to comply with
it.
The test to be
applied to determine if disobedience of a civil order constitutes
contempt has come to be stated as:-
As
whether the breach was committed 'deliberately and mala fide
1
.
A deliberate disregard is not enough, since the non-compiier may
genuinely
;
albeit
mistakenly
;
believe
him or herself to act in the way claimed to constitute the contempt
In such a case, good faith avoids the infraction
.
Even a refusal to
comply that is objectively unreasonable may be bona fide(though
unreasonable-ness could be evidence of good faith.
These requirements
-
that
the refusal to obey should be both willful and mala fide
,
and that unreasonable
non-compliance, provided it is bona fide, does not constitute
contempt - accord with the broader definition
of the crime
,
of which
non-compliance with civil orders is a manifestation'.
Facie
NO v CCll Systems (PTY) Ltd
THE CONDUCT OF THE
APPLICANT
[41] The applicant
is aware of both the orders referred to above, in particular the
Motlhe J order, the Potterill J order as well
as the Murphy J order.
The existence of the court orders is common cause. The contempt order
was granted in his presence in court
and he also refers to all the
orders in various correspondence. In his argument before me he
admitted knowledge of those orders.
[42]
From the time when the sequestration order was granted, it is clear
that the applicant never accepted the order of this court.
This is
evident in his numerous letters, affidavits and utterances that he
made wherein he indicated that the order of sequestratior
was granted
in error. Even if it were so, an order of a court of law stands until
set aside by a court of competent jurisdiction,
Bezuidenhout
v Patensie Sitrus Beherend BPK2001 (2) SA 224 (E) at229-C.
Until
that is done the court order must be obeyed even if it might be
wrong,
Culverwell v Beira
1992 (4) SA 490
(W) at
494-A.
The
fact that numerous court applications failed, where he had persisted
with that view, was not reason enough to persuade him to
accept the
authority of this court. His further non-acceptance of the authority
of this court is evidenced in the letter he wrote
to the respondents'
legal representatives where the following utterances were made by
him:
In a letter dated
the 10th April 2013 addressed to the respondents' legal
representative, he had this to say about the Motlhe J
order:
"
1. At a
hearing
today chaired by Judge Motlhe, the under mentioned were remarked.
Judge Motlhe did not address the matter before him namely
the removal
of the contradictory affidavits.
1.1. The Judge is
bound by the Appeal Court ruling in Estate Wilson vs Giddy, Giddy
& White
137 AD 239
and the status quo remains.
The intimation by
the appellant was that despite the order of Motlhe J, he was not
going to take it into consideration because he
was of the persuasion
that the Judge did not address matters before him. He went on to say
in that letter, in reference to the
order
3. The Judge made
a ruling that I may not harass certain parties.
3.1.
In strong contradiction to this,
statutory law
compels me to have the
abortive affidavits
removed
.
Surely the statute overrules the
Judge's remarks.
[43] The applicant
did not disclose which statutory law compels him to seek to have the
abortive affidavits removed nor did indicate
which remarks of the
Judge (Motlhe), are overruled by statute. What is clear however is
that the Honorable Motlhe J, did not make
any remarks. What the
applicant is referring to is the court order itself that interdicts
the applicant from harassing certain
parties. By referring to the
interdict as a remark, thereby downgrading it, the applicant has
serious assaulted the authority of
this court and placed its
legitimacy into disrepute.
[43] The conduct of
the applicant when writing to the Deputy Judge President, which
conduct in my view was aimed at misleading the
DJP into believing
that there were good grounds to give consent to the applicant to
initiate legal proceedings against the
respondents, was
deliberate and in bad faith. So was his persistence with proceeding
with this matter when he was advised that in
doing so, he was in
contempt.
CONTEMPT OF COURT
[44] 41.1. That
orders by Motlhe J, Potterill J and Murphy J, were granted by this
court, is common cause.
41.2. That the
respondent was aware of these orders has been shown beyond reasonable
doubt. They were served on him, he referred
to them in correspondence
and did not express disbelief as to their origins or what they
purported to say.
41.3. That the
applicant disobeyed these orders has been proved beyond reasonable
doubt. In my view he did not neglect to obey the
orders.
Evidence point to
the fact that he, when he was aware of these orders, deliberately
disobeyed them.
[45] The applicant
could not give a cogent explanation as to his non-compliance with the
orders. The closest he got to explaining
himself was to indicate that
he is a lay person and also that he had received some advise from an
advocate in Johannesburg, whose
details he could not disclose, to the
effect that in particular the main action could be instituted. The
applicant is a very knowledgeable
man. His submission that he is only
a lay person does not accord with his knowledge of the law that I
observed when he argued his
matter before me. Importantly however,
the applicant failed to disclose his reasons for non-compliance.
He failed to explain
the reasons why, having conceded knowledge of the orders and his
understanding of them, did he not comply therewith.
It was clear from
the argument by the applicant before me that misunderstanding of the
order can be excluded as a possible reason.
In the absence of any
explanation, I find that the contempt has been both deliberate and in
bad faith. I find that such has been
established beyond a reasonable
doubt. My succinct findings therefore are:
1. That the
applicant, when he issued the application under case number
4363/2014, without first having obtained leave to do so,
was in
contempt of the Motlhe J order.
2. That the
applicant when he launched the current proceedings under case number
25846/2014, without having paid all legal costs
in respect of which
orders had been granted against him and for which he is liable, and
without having received an appropriate
direction issued by the Deputy
Judge President, permitting the Registrar to accept papers by the
applicant, was in contempt of
the Murphy J order.
THE MAIN APPLICATION
[46] The main
application was issued without the requisite leave. The issue thereof
was therefore in violation of an interdict.
For this reason, it is
not necessary to even entertain the merits thereof. The application
stands to be dismissed.
THE CONSENT
APPLICATION
[47] In my view the
consent application has two issues that arise therefrom. Firstly, it
is the application for consent itself.
Secondly, it is the fact that
the application was issued without leave. In view of the fact that
the application was issued without
leave, on this point alone it
stands to be dismissed. The applicant is liable for many outstanding
costs orders, none of which
have been paid. He launched the current
proceedings without having paid the legal costs or obtaining a clear
directive form the
DJP, instructing the Registrar to issue the
process. On this part, the second part, there is a clear violation of
the order of
Murphy J. An appropriate order in this regards is
deserved.
COUNTER APPLICATION
[48] The applicant
was on the 11 th October 2013 found guilty of contempt of court by
Potterill, J. He was sentenced to 30 (thirty)
days imprisonment. The
sentence was suspended on condition that the applicant observes or
complies with the Motlhe J, order. The
applicant has been found to be
in contempt of the Motlhe J, order. The suspended sentence therefore
stands to be put onto operation.
[49] For the reasons
mentioned above, I make the following order;
1. The main
application (case number 4363/14) is dismissed.
2. The consent
application (case number 25846/14) is dismissed.
3. The applicant is
found guilty of contempt of the order of Motlhe J, consequently, the
suspended sentence of 30 (thirty) days
imprisonment, imposed by
Potterill J, is put into operation.
4. The sheriff of
this Court is directed to take the applicant into custody for
purposes of serving the said sentence from the date
of service of
this order.
5. The applicant is
found guilty of contempt of the Murphy J, order. The applicant is
sentenced to 60 days imprisonment which is
suspended on condition the
applicant does not contravene the order of Mothle J, or that of
Murphy J, or both orders.
6. The applicant is
ordered to pay the costs hereof.
S.A. THOBANE
Acting Judge of
the High Court, Pretoria