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[2014] ZAFSHC 29
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Mellet v Kampherbeek and Another (3093/2013) [2014] ZAFSHC 29 (13 March 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case No.: 3093/2013
In the matter
between:
BLUCHER
HAUMAN
MELLET
..
........................................................................
Applicant
and
CARL
FREDERICK
KAMPHERBEEK
........................................................
First
Respondent
GRAND
PALACE TRADING 217 (PTY)
LTD
..............................................
Second
Respondent
CORAM
:
LEKALE, J
HEARD ON
:
27 FEBRUARY 2014
JUDGMENT
BY
: LEKALE, J
DELIVERED
ON
: 13 MARCH 2014
INTRODUCTION
AND BACKGROUND:
[1]
This is an opposed motion for an order
calling upon the first respondent to show cause, if any, why the
following orders should
not be made:
“
1.1
Dat die eerste respondent skuldig bevind word aan minagting van
hierdie Agbare Hof se hofbevel, uitgereik op 6 Augustus 2013
onder
saaknommer 3093/2013, en wel bevel 3 daarvan;
1.2
Dat, indien
eerste respondent skuldig bevind word, soos vermeld in bede 1.1
supra, die eerste respondent sodanig gevonnis sal word
as wat die
Agbare Hof onder die omstandighede billik mag ag;
1.3
Dat
die eerste respondent gelas word om te voldoen aan die bepalings van
voormelde hofbevel, bevel 3 daarvan;
Dat die eerste respondent gelas word om
die koste van hierdie aansoek te betaal.”
[2]
On
the 6
th
August 2013 the parties secured an order by agreement under the above
case number in terms of which the first respondent,
inter alia,
“
3. ... onderneem om alle rekords,
insluitende
finansiële
verslae,
finansiële
instrumente, notules van
jaarvergaderings en Direkteur vergaderings aan die applikant te
oorhandig saam met die opponerende verklaring,
voor of op 28 Augustus
2013.”
[3]
The applicant and the first respondent
(the respondent) hold equal shares in the second respondent and the
first respondent is,
further, the sole director of the second
respondent. No relief is sought against the second respondent and, as
such, there is no
appearance for it.
[4]
The respondent, however, did not hand
over the documents referred to in the court order to the applicant
and, on the 11
th
November 2013, the applicant commenced the instant proceedings by
filing a notice in terms of rule 6(11) of the Uniform Rules of
Court.
[5]
The respondent resists the motion mainly
on the ground that the
order
relied upon to sustain the proceedings is not legally recognised as
giving cause to contempt proceedings.
DISPUTE:
[6]
The respondent, effectively, disputes
that the order in question saddles him with a duty towards the court
so as to expose non-
compliance with the same to contempt
proceedings.
[7]
He, further, contends that, in the event
of contempt proceedings being competent on the relevant order, then
and only in that eventuality,
he did not act deliberately and
maliciously when he failed to comply with the same.
CONTENTIONS FOR THE PARTIES:
[8]
Adv. Van Rhyn SC, appearing with Adv.
Greyling for the applicant, submits that it is olear from decided
cases that a settlement
agreement which has been made an order of
court, is as much a court order as an order made by the court after
hearing and dealing
with the merits of a case. Such an order,
therefore, has the same legal consequences as any other court order.
In his view the
respondent has failed to create a reasonable doubt as
to his intention and mala fides when he failed to deliver the
relevant documents
as ordered by the court.
[9]
On behalf of the respondent Mr Loubser
submits that the respondent deliberately insisted on the word
“
onderneem
”
being substituted for “
gelas
”
in the draft order which was eventually made an order of court
because he did not want to fall foul of a court order in
circumstances where he was not in possession of the documents in
question. According to him the effect and essence of the word
“
undertake
”
in a court order is to record reciprocal contractual obligations of
the parties as opposed to burdening them with duties
towards the
court. Such a court order only serves to render the agreement between
the parties binding
inter partes
and, as such, does not lay the basis for contempt proceedings in his
view. In his opinion the respondent was, in any event, not
mala
fide
and did not intend to hold the
court order in contempt regard being had to his insistence on the
word “
onderneem
”
in the draft order.
APPLICABLE
LEGAL PRINCIPLES:
[10]
It is correct, as effectively contended
for the applicant, that in proceedings seeking the committal of the
alleged offender to
prison for contempt of a court order the
applicant, as the prosecutor, must establish the existence of the
order, its service on
the respondent and non-compliance with the
same. Once the aforegoing have been established, the evidentiary
burden shifts to the
respondent alleged offender to raise a
reasonable doubt as to whether non-compliance was wilful and mala
fide. Failure to adduce
evidence raising such a reasonable doubt
results in the offence having been proved beyond reasonable doubt.
(See:
Fakie NO v CCII Systems (Ptv) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA).)
[11]
For a court order to lay the basis for
contempt proceedings it must be one ad factum praestandum in the
sense that it can be gathered
from its terms that it compels the
respondent to either perform or refrain from something as opposed to
simply effecting payment.
See
Ferreira
v Bezuidenhout
1970 (1) SA 551
(OV
Lujabe v Maruatona
[2013] ZAGPJHC 66(
Lujabe
)
and compare
Tasima (Ptv) Ltd v
Department of Transport and Others
2013
(4) SA 134
(NGP) at para [71](
Tasima
)
and
Johannesburg Taxi Association
v Bara-Citv Taxi Association and Others
1989 (4) SA 808
(W) (
Johannesburg
Taxi Association
).)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS:
[12]
The dispute between the parties is
limited to the question whether or not the relevant court order is
one ad factum praestandum
and if so, whether or not the respondent’s
account for non-compliance with the same is reasonably possibly true
so as to
cast a reasonable doubt on the wilfulnesss and maliciousness
of his non-compliance.
[13]
The question with regard to the nature
of the order in the instant matter and its competence to sustain
contempt proceedings entails,
as a starting point, interpretation of
its terms in order to establish if they oblige the first respondent
to deliver the relevant
documents to the applicant.
[14]
The fact that the draft order was made
an order of court, simply means that it has the authority and force
of law in the sense that
its terms are imputed to the court, which
has effectively ordered as set out in the draft order. (See
York
Timbers Ltd v Minister of Water Affairs and Forestry and Another
2003
(4) SA 477
(T) at 500 and
Simon NO
and Others v Mitsui and Co Ltd and Others
1997 (2) SA 475
(W) at 498 I - J)
[15}
In his contention that the court order in the present matter does not
expose non-compliance with the same to committal for
contempt, the
respondent relies on decisions such as
Johannesburg
Taxi Association
,
supra
,
and
Tasima
supra
,
that hold to the effect that in order to sustain contempt proceedings
the relevant court order should specify the content of the
respondent’s obligation towards the court. On the authority of
such decisions, the court order in the instant matter would
be
interpreted as only noting reciprocal contractual obligations between
the parties and as an
“
order in terms of what parties
contracted without an element of a Court requiring obedience because
of the administration of justice's
own interest in compliance with
the order.”
(See
Johannesburg Taxi Association,
supra,
at 811 E - F.
[16]
In
my view, what decisions such as
Johannesburg
Taxi Association
appear to lose
sight of is the very essence of a court order which lies in the fact
that it is both authoritative and compulsive
without necessarily
having to demand obedience expressly or warning, in so many words,
that non-compliance exposes the offender
to contempt proceedings. The
fact that the relevant draft order or settlement agreement has been
made an order of court means that
when its terms are read, they are
to be understood as having been ordered by the court. I agree with
the decision in
Lebeloane v
Lebeloane
2001 (1) SA 1079
(W)
that the approach in such decisions is overly technical. The
respondent’s duty towards the court arises from the fact
that
the order is one by the court and the duty he owes to the court is to
comply with the same.
[17]
Mr Loubser, further, contends that the
decision in
Tasima
is
binding on this court because it emanates from a full bench.
The legal position is, however, that such a
decision, emanating as it does from the full bench of another
division, is of great
persuasive value on this court but is not
binding ( See
Levitt v Schwartz
1938 CPD 47).
I am, further, persuaded by Mr Van Rhyn that the
present matter is distinguishable on the facts from the
Tasima
decision insofar as the court in that matter found that the relevant
order was couched in general terms which were not specific
enough to
inform the respondent of the content of his or her obligations
towards the court which the order requires him or her
to perform,
while in the present matter the relevant term is clear and specific
with regard to what the first respondent has undertaken
to you and is
ipso facto obliged to do. I am, thus, not inclined to follow that
decision.
[18]
The order in the instant matter is, in
my view, the kind that compels the respondent to perform something
and, as such, competently
sustains contempt proceedings. The next
enquiry is whether or not non-compliance by the first respondent was
deliberate and malicious
regard being had to his explanation that he
was never in possession of the relevant documents and, for that
reason, he insisted
on the wording ’’
onderneem
”
as opposed to “
gelas
”
in the draft order which was eventually made an order of court. I am
not satisfied that this version by the first respondent
is reasonably
possibly true regard being had to the fact that he was always free to
point out that some of the documents did not
exist because no
directors’ meetings and annual meetings were held. It was
equally within his power to
point out that he was not in possession of
financial statements and not to agree to an order effectively
requiring him to provide
non-existent and unavailable documents with
full knowledge that he was not in a position to comply with the same.
The only reasonable
conclusion is that the relevant documents were in
existence and available as at the date of the order. It is,
furthermore, not
apparent ex facie the respondent’s papers that
he took any steps whatsoever to trace and acquire the financial
statements
from the auditors in Somerset West. As Mr Van Rhyn
correctly points out cheques are financial instruments and from the
first respondent’s
own deposition it is clear that some
property belonging to the second respondent was leased out and
generated rental income. It
can, therefore, reasonably be accepted
that the second respondent was trading and had a cheque account to
which the respondent,
as the sole director, would have access.
COSTS:
[19]
The
applicant moves for costs against the first respondent on a scale as
between attorney and client inclusive of costs attendant
on
employment of two counsel. In support of this prayer Mr Van Rhyn
refers to the conduct of the first respondent in agreeing to
submit
documents which, on his own version, were either non-existent or not
in his possession with full knowledge that he would
not be able to
comply with a court order to that effect. Mr Loubser, on the other
hand, submits that no cause exists for punitive
costs order and for
employment of two counsel.
[20]
I am, however, satisfied that reason
exists for a special order as to costs in the form of the
respondent’s conduct which,
in my judgment, is indicative of
malice on his part and was displayed as early as the date on which
the order was made. In this
regard it is worth observing that, on his
own version, when he consented to the order he was alive to his
handicaps and knew that
he would not reasonably possibly be able to
overcome them in order to comply with the same. I am, further,
convinced that sufficient
reason existed for employment of two
counsel regard being had to, inter alia, the question raised by this
matter.
ORDER
[21]
The first respondent is guilty of
contempt of an order emanating from this division and issued on the
6
th
August 2013 under case number 3093/2013, particularly order number 3
thereof.
[22]
The first respondent is fined R10 000.00
or 4 (four) months imprisonment which sentence is suspended in whole
for four years on
condition that the first respondent shall not be
found guilty of contempt of court order committed during the period
of suspension.
[23]
The first respondent is further directed
to comply with the provisions of paragraph 3 of the court order of
the 6
th
August 2013 within 15(fifteen) days of the date of this order.
[24]
The
first respondent is, furthermore, ordered to pay the costs of this
application on the scale as between attorney and client inclusive
of
the costs attendant on employment of two counsel.
L.
J. LEKALE, J
On behalf of
applicant: Adv A J T van Rhyn SC
With
him:
Adv
P du P Greyiing Instructed by:
Eugene Attorneys BLOEMFONTEIN
On behalf of
first respondent: Adv Loubser
Instructed
by:
JG Kriek& Cloete 66B King Edward RD
BLOEMFONTEIN
/spieterse