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[2014] ZAFSHC 174
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Pienaar v Matjhabeng Local Municipality and Another (A228/2013) [2014] ZAFSHC 174 (18 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
No: A228/2013
DATE:
18 SEPTEMBER 2014
In the matter
between:-
GERHARDUS
JOHANNES
PIENAAR
....................................................
Appellant
And
MATJHABENG LOCAL
MUNICIPALITY
.................................
First
Respondent
MICHAEL
RAMOHODI
........................................................
Second
Respondent
CORAM: RAMPAI,
AJP et POHL, AJ et WRIGHT, AJ
JUDGMENT BY:
POHL, AJ
HEARD ON: 8
SEPTEMBER 2014
DELIVERED ON: 18
SEPTEMBER 2014
INTRODUCTION:
[1] This is an
appeal to the Full Bench against:
(i) an order by the
court a quo striking out certain portions of a replying affidavit,
filed by the appellant in an application
for the conviction and
sentence of the respondents for contempt of court; and
(ii) the order of
the court a quo discharging the rule nisi issued in respect of the
contempt application.
[2] The contempt
application has its roots in a successful spoliation application
brought by the appellant against the respondents.
It being the
appellant’s case that he was spoliated by the respondents in
his possession of a farm in the district of Welkom.
THE CHRONOLOGY OF
EVENTS:
To put this judgment
in perspective, it is necessary to list the chronology of the events
and orders as it unfolded.
[3] On 17 September
2012, Van Zyl J granted the spoliation order in the form of a rule
nisi.
[4] On 17 September
2012, the papers in the spoliation application were served at the
offices of the first respondent for the attention
of both first and
second respondents.
[5] On 21 September
2012, Van Zyl J’s court order in the spoliation application was
duly served on the first respondent.
[6] On 1 October
2012, Van Zyl J’s court order in the spoliation application was
served on the second respondent by affixing
it to the door of his
“residence” on the farm. It is common cause that the
second respondent did not reside on the
farm. Van Zyl J’s
order was that it could be served by affixing it to the main entrance
to the farm in question.
[7] On 19 October
2012, both the deponent on behalf of the first respondent
(Ramathebane) and the second respondent signed the opposing
affidavits in the spoliation application.
[8] On 24 and 25
October 2012, an employee of the second respondent was busy working
on the farm with a tractor. This action or
deed, formed the basis
for the contempt application.
[9] On 2 and 3
November 2012, the contempt application was served on the
respondents.
[10] On 22 November
2012, Kruger J confirmed the rule nisi in the spoliation application,
issued by Van Zyl J on 17 September 2012.
[11] On 22 November
2012, Kruger J also issued the rule nisi in the contempt application.
[12] On 30 May 2013
Mhlambi AJ discharged the rule nisi issued by Kruger J on 22 November
2012. It is against this judgment that
the appeal lies.
COMMON CAUSE FASTS:
Ex facie the record
it appears that the following facts are common cause:
[13] The applicant
had a lease agreement in respect of this farm, which he concluded
with the previous owner of the farm, for a
period of five years from
1 March 2009.
[14] The first
respondent bought the farm and became the registered owner of the
farm on 20 July 2012.
[15] The notice of
application for leave to appeal and the notice of appeal incorrectly
refers to the judgment by Mhlambi AJ “discharging
the rule nisi
issued by Van Zyl J”. The spoliation order issued by Van Zyl J
on 17 September 2012 in the form of a rule
nisi and which was
confirmed by Kruger J on 22 November 2012, is not the subject of the
appeal before this court. Mhlambi AJ discharged
the rule nisi Kruger
J issued in the contempt application.
[16] On 5 September
2012 the first respondent gave the applicant written notice to vacate
the farm in question by 14 September 2012.
However, the applicant
did not vacate the farm.
[17] On 14 September
2012, employees of the second respondent came onto the farm and
started spraying a chemical substance. This
was done with the
permission of the first respondent. The said spraying was done by
the second respondent at the request and on
the instruction of the
first respondent. This precipitated the bringing of the spoliation
application.
[18] On 24 and 25
October 2012, an employee of the second respondent once again worked
on the lands on the farm in question with
a tractor on the
instructions of the second respondent. The reason why the second
respondent’s employee performed this work
on these dates, was
because the Department of Land Affairs entered into an agreement with
the second respondent, inter alia to
cut weed under the surface of
the soil with a so-called “roll staff”. When the second
respondent was confronted by
the appellant’s legal
representatives on 25 October 2012, he vacated the farm in question
with the tractor and everything
else.
[19] On p 125 of the
record in par 22 of the opposing affidavit, signed on 19 October
2012, right above the signature of the first
respondent’s
deponent, Ramathebane, declares as follows:
“I therefore
respectfully request that the rule nisi issued on 17 September 2012,
be uplifted and the application be turned
down with costs.”
[20] On p 139 of the
record in par 4 of the second respondents’ affidavit, which he
also signed on 19 October 2012, he declares
as follows:
“I support the
relief claimed in paragraph 22 of the deponent GERMAN RAMATHEBANE’s
opposing affidavit of First Respondent.”
[21] In the
application for contempt, in order to prove the respondent’s
knowledge of the existence of the court’s order
in the
spoliation application, the appellant erroneously annexed the wrong
returns of service to the founding affidavit. These
returns related
to the application papers that were served and did not relate to the
service of the court order in the spoliation
application. When the
respondents took this point in the opposing affidavit, the appellant
annexed the correct returns to the
replying affidavit. The court a
quo, inter alia, struck out the paragraphs in the replying affidavit
where reference is made to
the correct returns and in terms of which
the correct returns were annexed.
[22] In the opposing
affidavits in the contempt application, it is throughout denied that
the court order was properly served on
the second respondent, or that
he had any knowledge of the order, or even the existence of the
order, or that it was brought under
his attention. The first
respondent’s deponent however declared as follows in this
regard:
“The mere fact
that the first respondent filed his opposing affidavit was however
not reason, or sufficient reason, for first
respondent to obtain
proper knowledge of the contents and effect of the order.”
[23] Besides the
portion of the replying affidavit that was struck out referred to in
par [21], supra, the remainder of the allegations
thus struck out by
the court a quo, in essence, related to the applicant declaring that
he finds the allegation by the respondents
that they were not aware
of the court order, false, disconcerting, untenable and a lie. He
based this on the fact that the respondents
signed the affidavits on
19 October 2012 and that they were throughout represented by an
attorney and a senior advocate.
LEGAL POSITION IN
RESPECT OF APPLICATIONS TO STRIKE OUT:
[24] Rule 6(15) of
the Uniform Rules of Court provides as follows:
“(15) The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or
irrelevant, with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the
application unless it is
satisfied that the applicant will be prejudiced in his case if it be
not granted.”
The following dicta
appears in the decision of Vaatz v Law Society of Namibia
1991 (3) SA
563
(Nm) at p 566B – E:
“All those
words, 'scandalous', 'vexatious', 'irrelevant' and 'prejudice' are
words used almost every day in courts of law.
The context in which
they are used can lead to variations of meaning but basically they
have the meanings allotted to them by The
Shorter Oxford English
Dictionary.
In Rule 6(15) the
meaning of these terms can be briefly stated as follows:
Scandalous matter -
allegations which may or may not be relevant but which are so worded
as to be abusive or defamatory.
Vexatious matter -
allegations which may or may not be relevant but are so worded as to
convey an intention to harass or annoy.
Irrelevant matter -
allegations which do not apply to the matter in hand and do not
contribute one way or the other to a decision
of such matter.”
[25] In the decision
of Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South
Africa Ltd and Others
2013 (2) SA 204
(SCA) at p 212 paras [26] and
[27], the Supreme Court of Appeal dealt with the question of “New
matter in a replying affidavit”
and decided as follows:
“[26] Counsel
for Finishing Touch urged us to reject this explanation as it had
been raised for the first time in the replying
affidavit. It is true
that the explanation was proffered by BHP in reply, but the rule that
all the necessary allegations upon
which the applicant relies must
appear in his or her founding affidavit is not an absolute one. The
court has a discretion to allow
new matter in a replying affidavit in
exceptional circumstances. A distinction must be drawn between a case
in which the new material
is first brought to light by the applicant
who knew of it at the time when his founding affidavit was prepared,
and one in which
facts alleged in the respondent's answering
affidavit reveal the existence or possible existence of a further
ground for the relief
sought by the applicant. See Shakot Investments
(Pty) Ltd v Town Council of the Borough of Stanger.
[27] In this matter
BHP was justified in dealing with the issue in the replying affidavit
as the question of service was raised
in the answering affidavit as
well as in the counter-application on behalf of Finishing Touch.
Before then it could have had no
idea that the validity of the
service by hand on the State Attorney would be challenged, especially
when the State Attorney had
given the assurance that they had been
authorised to accept service on behalf of the state respondents.
Furthermore this aspect
was never challenged by the state respondents
during the review proceedings. The State Attorney simply filed a
notice of opposition
on their behalf but they elected not to file any
answering papers in the review application. I also cannot comprehend
how the state
respondents' waiver of compliance, even if there were
any non-compliance with the rule relating to service, could avail
Finishing
Touch who could never have been prejudiced by it.”
[26] The appropriate
test to be applied was clearly illustrated by Nestadt J in Shepard v
Tuckers Land Development Corporation (Pty)
Ltd (1)
1978 (1) SA 173
(W) at p 177G – 178A, as follows:
“The second
part of the application to strike out, that relating to Auret's
affidavit, is based on the contention that the
allegations therein
contained should have formed part of the applicant's founding
affidavit and annexures, or, alternatively, constitute
new matter. It
is founded on the trite principle of our law of civil procedure that
all the essential averments must appear in
the founding affidavits
for the Courts will not allow an applicant to make or supplement his
case in his replying affidavits and
will order any matter appearing
therein which should have been in the founding affidavits to be
struck out. (See Herbstein and
Van Winsen, p.75.) In Titty's Bar and
Bottle Store (Pty.) Ltd. v A.B.C. Garage (Pty.) Ltd. and Others,
1974
(4) SA 362
(T), VILJOEN, J., at p. 368 stated:
‘It has always
been the practice of the Courts in South Africa to strike out matter
in replying affidavits which should have
appeared in petitions or
founding affidavits, including facts to establish locus standi or the
jurisdiction of the Court. See Herbstein
and Van Winsen, Civil
Practice of the Superior Courts in South Africa, 2nd ed., pp. 75, 94.
In my view this practice still prevails.’
This is not however
an absolute rule. It is not a law of the Medes and Persians. The
Court has a discretion to allow new matter
to remain in a replying
affidavit, giving the respondent the opportunity to deal with it in a
second set of answering affidavits.
This indulgence, however, will
only be allowed in special or exceptional circumstances. Bayat and
Others v Hansa and Another,
1955 (3) SA 547
(N) at p. 553; Kleynhans
v Van der Westhuizen, N.O.,
1970 (1) SA 565
(O) at p. 568.”
APPLICATION TO THE
FACTS:
[27] The court a quo
referred to all the applicable authorities in respect of applications
to strike out, but then merely went ahead
and found that the
respondents would be prejudiced if the striking out is not ordered,
without any reference to the factual basis
for this conclusion. This
clearly amounts to a misdirection which entitles this court to
consider the application to strike out,
afresh.
[28] It was
submitted on behalf of the respondents that paragraphs 4.1, 4.2 and
4.3 of the replying affidavit were correctly struck
out on the basis
that it constituted new matter/facts/evidence, alternatively hearsay,
alternatively argumentative or irrelevant.
[29] This submission
is clearly without substance. These paragraphs, in essence, deal
with the annexing of the correct returns
of service in respect of the
service of the court order, since the incorrect returns were annexed
to the founding affidavit. It
must be remembered that the
respondents declare in the opposing affidavits that the court order
was never properly served on the
second respondent and that the first
respondent allegedly did not have proper knowledge of the order. The
reference to and the
attachment of the returns is thus merely an
amplification of the allegation already made in the founding papers
that there was
service of the court order. In any event, it must be
borne in mind that the sheriff would have sent his returns of service
to
the court and it would thus have been in the court file in any
way. It was thus not necessary for the appellant to annex them to
his papers. There could thus have been no prejudice to the
respondents if the returns were annexed to the replying affidavit.
(Vaatz v Law Society of Namibia, supra, at p 566H – I) It is
not new matter and it is certainly not irrelevant. In the
premises
there was no basis for striking out these paragraphs.
[30] It was
furthermore submitted on behalf of the respondents that paragraphs
5.3, 5.5 and 6.2 of the replying affidavit were correctly
struck out
on the basis that it constituted scandalous, vexatious, irrelevant or
argumentative matter.
[31] Whilst it is
true that the language used in these paragraphs is couched in
argumentative form, it is clear that what the applicant
wanted to
convey was the improbability of the version proffered by the
respondents that they were not aware of the contents of
the court
order issued by Van Zyl J. There could equally be no prejudice to
the respondents if these paragraphs were not struck
out. In any
event, it was probably argued on behalf of the appellant during the
application. To strike out such matter is in
any event not an
immutable rule and not the “law of Medes and Persians”.
In the premises, the court a quo should also
not have struck out
these paragraphs.
[32] Neither party
presented arguments to this court regarding the appropriateness of
such a cost order. There was no basis for
the punitive order as to
costs that the court a quo made against the appellant.
THE LEGAL POSITION
IN RESPECT OF CONTEMPT APPLICATIONS:
[33] In the decision
of Consolidated Fish Distributors (Pty) Ltd v Zive and Others
1968
(2) SA 517
(C) at p 522E – H the court found as follows in
respect of the requirements for contempt:
“An applicant
for committal needs to show -
(a) that an order
was granted against respondent; and
(b) that respondent
was either served with the order (Godefroy v. The State, (1890) 3
S.A.R. 113; Eaton Robins & Co v Voges,
19 C.T.R. 140; Resident
Magistrate, Humansdorp v Kosana and Another,
1915 E.D.L. 4)
; or was
informed of the grant of the order against him and could have no
reasonable ground for disbelieving the information (Burgers
v Fraser,
1907 T.S. 318
; Scholtz' Estate v Carroll,
23 S.C. 430
; Botha v
Dreyer,
1 E.D.C. 74
; In re Cousins and Another,
1911 CPD 463
at pp.
470 G - 471; In re The Corinbatore,
18 N.L.R. 179)
; and
(c) that respondent
has either disobeyed it or has neglected to comply with it.
(In this instance it
is undisputed that the order was duly served).
Once it is shown
that an order was granted and that respondent has disobeyed or
neglected to comply with it, wilfulness will normally
be inferred (R
v Mcunu,
1928 NPD 237
; R v Rosenstein,
1943 T.P.D. 65
at p. 70;
Wickee v Wickee,
1929 W.L.D. 145
at p. 148) and the onus will then be
on respondent to rebut the inference of wilfulness on a balance of
probabilities (Waterston
v Waterston,
1946 W.L.D. 334
; R v Van der
Merwe,
1952 (1) SA 647
(O) at p. 650; Jacobs v Jacobs,
1911 T.P.D.
768
at pp. 770 - 771; Wickee v Wickee, supra; R ed v Reed,
1911
E.D.L. 157
; see also Traut v Rex, 1931 S.W.A. 29 at p. 32).”
[34] In Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) the court summarised the
legal position with regards to a contempt application as follows at p
344G – J:
“[42] To sum
up:
(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.”
APPLICATION TO THE
FACTS
[35] The first
question is whether or not the respondents had knowledge of the
existence and the contents of the court order granted
by Van Zyl J on
17 September 2012. If any of the respondents did not, they could not
be found guilty of contempt of court. In
this regard it is necessary
to have regard to the exact wording of the order. It reads as
follows:
“WORD DIT
GELAS DAT:
1.1 Kondonasie
verleen word vir nie-nakoming van die Hofreëls met betrekking
tot vorms en betekening en dat hierdie aansoek
aangehoor word as ‘n
dringende aansoek;
1.2 Betekening van
hierdie aansoekstukke op die Eerste Respondent geag word voldoende
betekening op die tweede Respondent te wees;
2. ‘n Bevel
nisi uitgereik word wat die Respondente oproep om redes, indien
enige, aan te voer op 18 Oktober 2012 om 09:30
waarom die volgende
bevel nie finaal verleen moet word nie.
2.1 Dat die vrye en
ongestoorde besit van die plaas bekend as ‘Gedeelte 2 van die
restant van die plaas Vlakplaats 125, geleë
in die distrik
Welkom, 191.6886 hektaar’ (hierna ‘die eiendom’ of
‘die plaas’) aan die Applikant
besorg word;
2.2 Dat die Eerste
en Tweede Respondent, gesamentlik en afsonderlik, die een betaal die
ander kwytgeskeld te word, die koste van
die aansoek betaal.
3. Die regshulp soos
uiteengesit in paragraaf 2.1 supra sal geld as interim interdik met
onmiddellike werking hangende finalisering
van hierdie aansoek.
4. Hierdie bevel
beteken moet word op die Eerste Respondent ooreenkomstig die
Eenvormige Hofreëls en dat die bevel beteken
moet word op die
Tweede Respondent deur aanhegting daarvan tot die hoofingang tot die
plaas.”
[36] In respect of
the first respondent, there was proper service in terms of the court
order on 21 September 2012. From that day,
the first respondent had
possession of and thus knew of the existence and the contents of the
court order as explained by the sheriff
during service. Over and
above this, the first respondent’s deponent Ramathebane, on 19
October 2012, requests in the opposing
affidavit that the rule nisi
issued on 17 September 2012, be uplifted.
[37] In respect of
the second respondent, there was service on him by the sheriff by
“affixing it to the main entrance to
the second respondent’s
residence on the farm”. As indicated before, the second
respondent did not reside on the farm.
The service was also not
affected by affixing it to the main entrance of the farm, as required
by the court order itself. The
second respondent’s version was
throughout that he was not aware of the existence of the contents of
the court order when
he allowed his employee to work the land on 24
and 25 October 2012. This version of the second respondent must be
seen in the
context that he was not an employee of the first
respondent, but that he merely had a contractual arrangement with the
first respondent
to work the land. Furthermore, he vacated the land
immediately when he was confronted by the appellant’s legal
representatives
on 25 October 2012. It is however true that he also
requested in his opposing affidavit that the rule nisi be discharged.
He
did this with reference to Ramathebane’s paragraph 22 in
the replying affidavit, referred to above.
[38] It must be
borne in mind that the appellant bore the onus to prove beyond
reasonable doubt that the respondents’ had
knowledge of the
order. To my mind, the appellant failed to prove that the second
respondent had the required knowledge. First
of all, there was not
proper service in terms of the court order itself. Secondly, the
only basis for concluding that he had the
required knowledge, is if
it is accepted that his legal representatives told him of the
existence and the contents of the court
order especially with
reference to the interim operation of the rule nisi. His reference
to Ramathebane’s affidavit, alluded
to above, may be an
indication that this was in fact done by his legal representatives.
There is however simply no evidence of
what was exactly explained to
the second respondent, how complete the explanation was, whether he
understood what a rule nisi meant,
whether he understood what will
happen on the return day. The fact that the second respondent
vacated the property upon being
confronted by the appellant ‘s
legal representatives on 25 October 2012, is a further indication
that he only then fully
appreciated the existence and the nature of
the court order. In the premises, the court a quo was quite correct
in dismissing
the application for contempt in respect of the second
respondent.
[39] The next
question that falls open for decision is whether the appellant proved
that the first respondent, which had the required
knowledge of the
court order, did something which amounted to contempt of court. In
this regard, it must be borne in mind that
the personnel of the first
respondent did not trespass onto the farm after receipt of the court
order when it was served on the
first respondent. The fact that the
first respondent entered into a rental agreement with the second
respondent does not assist
the applicant. The mere existence of such
an agreement does not justify an inference that the first respondent
had knowledge of
the second respondent’s presence on the farm
after the rule nisi was issued. It can also not be said that the
first respondent
had a duty to inform the second respondent of the
order or to prevent him from disobeying the order. In all the
circumstances
and especially in view of the above finding that the
second respondent did not make himself guilty of contempt of court,
there
is also no basis upon which the first respondent was guilty of
contempt of court. The court a quo was thus correct to discharge
the
rule nisi.
[40] There was
however no basis why the court a quo should have ordered the
appellant to pay the respondents’ costs on the
punitive scale
of attorney and client. That order should thus be set aside.
[41] The appellant
is thus partially successful with the appeal, since he succeeds with
the appeal against the striking out. The
respondents are however
substantially successful, because the real subject matter and the
core of this appeal related to the contempt
application, with which
the respondents are successful. In the premises this is a case where
there should thus be a differentiation
in the court’s order as
to costs.
ORDERS:
[42] I would
therefore make the following orders:
1. The appeal
against the striking out of paragraphs 4.1, 4.2, 4.3 and portions of
5.3, 5.5 and 6.2 of the appellant’s replying
affidavit in the
contempt application is upheld and the court a quo’s order is
set aside and substituted with the following:
1.1 The application
for the striking out of paragraphs 4.1, 4.2, 4.3 and portions of
paragraphs 5.3, 5.5 and 6.2 of the applicant’s
replying
affidavit in the contempt application is dismissed with costs.
2. The appeal
against the court a quo’s discharging of the rule nisi dated 22
November 2012 is dismissed, except that the
court a quo’s order
in respect of costs is set aside and amended. The order of the court
a quo is therefore replaced with
the following:
“The rule nisi
granted on 22 November 2012, is discharged with costs.”
3. The appellant is
ordered to pay 75% of the respondents’ costs of the appeal.
L. le R. POHL, AJ
I concur.
M.H. RAMPAI, AJP
I concur.
G.J.M. WRIGHT, AJ
On behalf of
appellant: Adv P.J.J. Zietsman
Instructed
by:
Phatshoane
Henney
BLOEMFONTEIN
On behalf of
respondents:Adv A.H. Burger SC
Instructed by:
Moroka
Attorneys
BLOEMFONTEIN
spieterse