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[2014] ZAFSHC 10
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Agritrans (Pty) Ltd v Mafube Municipality and Another, In Re; Agritrans (Pty) Ltd v Mafube Municipality and Another (3064/2013) [2014] ZAFSHC 10 (20 February 2014)
IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION.
BLOEMFONTEIN
Case
No. : 3064/2013
In
the matter between
:-
AGRITRANS
(PTY) LTD
…
…………………………………………
.
Applicant
and
MAFUBE
MUNICIPALITY
…………………………………
First
Respondent
ISAAC
RADEBE
…………………………………………
Second
Respondent
Case
No.: 3547/2013
In
the matter between
AGRITRANS
(PTY) LTD
……………………………………
Applicant
and
MAFUBE
MUNICIPALITY
…………………………
.
First
Respondent
ISAAC
RADEBE
…………………………………
...
Second
Respondent
HEARD
ON:
17
OCTOBER 2013
JUDGMENT BY:
MONALEDI,
AJ
DELIVERED
ON
:
20
FEBRUARY 2014
MONALEDI. AJ:
[1]
This
matter came before the court by way of an urgent application in which
the relief sought was an order declaring the first respondent
to be
in contempt of a court order obtained under case number 2365/2004
(the “first court order”) and an order obtained
under
case number 1360/2008 (the “second court order”),
together with an order that the first respondent be committed
to
prison, either immediately or that the order be suspended. In the
alternative, the applicant sought interlocutory relief.
[2]
These
matters were argued together and it was agreed that they should be
dealt with on the same argument without any distinctions.
I shall use
the pleadings in case number 3064/2013
in
order to deal with the issues. The averments in the pleadings are
similar save for the dates pertinent to each of the court orders.
[3]
The
applicant is Agritrans (Pty) Ltd (“Agritrans”), a company
with limited liability registered in terms of the Companies
Act, 61
of 1973 and the
Companies Act 71 of 2008
with registered address
being the remaining extent of the farm Paisley No 73 (“the
property”), district Frankfort,
Free State Province. Agritrans
is the registered owner of the property.
[4]
The
first respondent is Mafube Municipality, a local authority
established in terms of the provisions of the Local Government
Municipal
Structures Act, No 117 of 1998 (“Act 117 of 1998”)
which conducts business from the Municipality Office Building,
Frankfort,
Free State Province.
[5]
The
second respondent is Mr Isaac Radebe, the Municipal Manager of the
first respondent, who was appointed in terms of section 82(1
)(a) of
Act 117 of 1998. He is the head of administration and the accounting
officer of the first respondent.
[6]
The
applicant seeks relief for:
“
2. An order declaring the
first respondent to be in contempt of the court obtained by the first
applicant against the first respondent
under case number 2365/2004
(the first court order) and/or case number 1360/2008 (the “second
court order”);
3.
An order directing
the first respondent to comply with paragraphs A1.1.1, A1.1.2 and
A1.1.3 of the Court order [as amended by the
order granted on appeal
under case number A248/08] within five days of date of this order
failing which the second respondent be
committed to prison for a
period of ninety days for contempt of court;
4.
In the alternative
to paragraphs 2 and 3 above, an order directing the first respondent
to:
4.1
within five days of
date of this order repair and make operational the two sewerage pumps
situated in the sewerage pump house (the
Namahadi pump house) which
services the Namahadi settlement (the Namahadi sewerage works);
4.2
maintain and
operate the pumps at the Namahadi pump house and the Namahadi
sewerage works situate on the remaining extent of the
farm Paisley No
73, district Frankfort (the property):
4.3
maintain and
operate the pumps situate on the property from which sewerage
effluent is pumped from the Namahadi sewerage works to
the pivot
irrigation system;
make available to the first
applicant all effluent produced by the Namahadi sewerage works
situate on the property;”
[7]
In
the Applicant’s replying affidavit notice is given to the
respondent that the applicant will, as an alternative to the
contempt
of court relief, seek declaratory relief that:
i.
It
is ordered that the first respondent has failed to comply with the
court orders; and
ii.
That
the first respondent is directed to comply with the first and second
court orders.
[8]
The
application has a long history and is it the fourth in a series of
applications brought by the applicant against the first respondent.
For purposes hereof the court will not discuss the build-up in full.
In any event is it fully set out in the founding papers and
is not in
contention.
[9]
The
applicant approached this Court on 8 August 2013 (Kruger, J) on an
urgent basis for the relief set out in paragraph [6] above.
The
application was considered not urgent and the respondent was granted
leave to file opposing papers. The application was heard
by and a
rule nisi was granted by consent of both the parties. In terms of the
court order, the respondents were called upon to
show because why the
interim interdict should not be made an order of court.
[10]
It
is not in the dispute that there was an order, that it was served or
came to the notice of the respondents and that there was
non-compliance with the order. The only aspect to be decided is
whether the non-compliance of the order in relation to the affluent
and spillages in the period 14 to 28 August 2013 was due to wilful
and mala fide defiance of the order.
[11]
In
Noel
Lancaster Sands (Edms) Bpk v D Theron en Andere
1974 (3) SA 688
(T)
Botha
J (as he then was) found at 691A-B that if an applicant proved that a
respondent, with knowledge of a Court order, acted in
conflict with
its terms, such an applicant would prima facie be entitled to a
committal order. The respondent would, however, be
able to resist the
relief sought if he were to prove - and the onus rests upon the
respondent in this regard - that he had not
intentionally defied the
order or had not acted mala fide in doing so.
[12]
The
following view was held in
Sparks v Sparks
1998 (4) SA 714
(W):
“
Accordingly, once it is
shown that an order was granted and that the respondent has disobeyed
it, or neglected to comply with it,
wilfulness will be inferred and
the onus is on the respondent to rebut the inference of wilfulness on
a balance of probabilities.
The onus lies on the respondent since he
must by his default be regarded as having intended the natural
consequences of his action,
namely to bring the administration of
justice into contempt.
Insofar as mala fides is
concerned, I see no reason why the onus of rebutting same should not
equally rest upon the shoulders of
the defaulting respondent.”
[13]
The
onus is on the applicant to prove contempt beyond a reasonable doubt.
Once that is established there is an onus of rebuttal
on the
respondent. Should he fail to advance evidence that established a
reasonable doubt as to whether his non- compliance was
wilful and
mala fide, the applicant would have proved contempt beyond a
reasonable doubt. In this regard reference is made to
Fakie
NO V CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA
326
(SCA)
on
page 344J to 345A.
[14]
The
applicant in its application referred to correspondence dated 26 June
2013 directed at the first respondent calling latter to
comply with
the court orders and to repair the pumps. This resulted in an
improvement of the functioning of the facility.
[15]
Further
correspondence followed on 1 July 2013 again reminding the first
respondent to comply with the court orders.
[16]
The
respondents argued that the spillages and overflow was not as a
result of any wilful and mala fide conduct or failure on their
part.
It is further stated that it was not necessary to bring this
application as there were no overflows, save those in August
2013 and
as such this application is pre-mature.
[17]
The
second respondent states in his opposing affidavit that the spillages
were caused by “factors beyond the control of the
officials of
the first respondent or myself.” He then states further that
the facility is very old and was burdened beyond
its demand by a
“vast population growth” in the last number of years. It
is however not in dispute that since 2008
when the court order was
granted, until June 2013 the facility was indeed fully operational.
It is further stated that since the
application was issued on 6
September, no further problems were experienced.
The
ability of the facility to deal with the workload seems not to be an
issue.
[18]
He
further sets out in the opposing papers a number of malfunctions
experienced with the equipment at the facility. From the steps
taken
it is clear that the respondents failed to properly maintain the
equipment and plan ahead for the increase in population.
It seems
that they did not maintain the facility as directed in anticipation
of department of water and forestry to implement other
proposals.
[19]
If
the contention of the second respondent regarding the increase in
population is indeed true, the fact that no further problems
were
experienced cannot be explained at the hand of difficulties with the
pumps.
[20]
The
first instance referred to in the founding affidavit was rectified
almost immediately upon it being brought under the intention
of the
first respondent. This is an indication that the facility was not
adequately managed. This then seemed to be the process
in which the
facility was thereafter operated, being that only after being made
aware of spillages; the problem would be attended
to.
[21]
It
is evident that the respondents are able to comply with the court
orders as there were no spillages since 6 September 2013 to
date of
hearing of the application.
[22]
The
court finds that the respondent has failed to advance evidence
establishing a reasonable doubt that their non- compliance with
the
court order was wilful and mala fide.
[23]
I
am satisfied that the first respondent, through its functionaries, by
not timeously identifying shortcomings in the facility and
its
equipment and maintaining and operating the sewerage works, there is
no evidence before me to prove that the respondents did
not intend to
act in breach of the Court order. I am satisfied that the evidence
shows that they did so both wilfully and in bad
faith.
[24]
The
first respondent is found to be contempt of the court orders under
case number 2365/2004 on 29 April 2011, and in respect of
the order
under case number 1360/2008.
[25]
There
is no reason to deviate from the practise that the successful party
should be awarded the costs. The applicant had no other
recourse to
ensure that the respondent keeps to the court orders. This was done
after the respondent was alerted to the fact that
they were in breach
of a court order, and was done so on numerous instances. Their
conduct in this regard was of such a nature
that a punitive cost
order must follow.
[26]
In
the result, the following order is made in respect of both matters:
a. The first respondent is
declared to be in contempt of the court order obtained by the
applicant against the first respondent
under case number 2365/2004,
and in respect of the order under case number 1360/2008;
b.
The first respondent is
directed to comply with paragraphs A1.1.1, A1.1.2 and A1.1.3 of the
first court order and/or the provisions
of the second court order (as
amended by the order granted on appeal under case no A248/2008)
within 5 days of the date of this
order, in so far as it has not yet
complied with those orders, failing which the second respondent is to
be committed to prison
for a period of 90 days for contempt of court;
c. The first and second
respondents, jointly and severally, the one paying the other to be
absolved, are ordered to pay the Applicant's
costs on an attorney and
client basis.
S.
MONALEDI, AJ
On
behalf of applicant:
Adv. N. Snellenburg
Instructed
by:
TIEFENTHALER
attorneys
C/O
MTHEMBU & VAN VUUREN ATTORNEYS
NR
20 FIRST STREET
ARBORETUM
BLOEMFONTEIN
On
behalf of respondents:
Adv. N. Davis SC
Instructed
by:
THERON
JORDAAN & SMIT INC
JAVA BUILDING
81 BUFFELDOORN
KLERKSDORP