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Murray NO v King (5984/2013) [2013] ZAGPPHC 68 (22 February 2013)

80 Reportability
Civil Procedure
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Brief Summary

Contempt of Court — Preservation order — Application for contempt against respondent for failure to comply with preservation order — Respondent's continuous disregard for court order necessitating urgent application — Court held that ongoing contempt constitutes urgency and ordered respondent to purge contempt within 24 hours or face penalties. The applicant sought to declare the respondent in contempt of a preservation order issued on 14 November 2012, requesting the respondent to comply with asset disclosure and delivery obligations. The respondent failed to file a proper defense and disputed the applicant's authority, leading to the urgent application for contempt proceedings. The court found that the respondent's actions demonstrated a wilful failure to comply with the preservation order, warranting the urgent nature of the application and the imposition of penalties for contempt.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an urgent application in the High Court of South Africa (North Gauteng High Court, Pretoria) in which the applicant sought a declaration that the respondent was in contempt of court for non-compliance with a prior preservation order, together with coercive and punitive relief aimed at compelling compliance.


The applicant was Cloete Murray N.O., acting in his capacity as curator bonis appointed under the preservation order. The respondent was David Cunningham King, who, on the papers and as treated by the court, was a person against whom operative obligations under the preservation order were directed, including obligations linked to corporate assets and records and to access to identified properties.


The procedural history relevant to the contempt enquiry included that the preservation order had been granted by the Deputy Judge President, van der Merwe DJP, on 14 November 2012 under case number 65542/2012 (as recorded in the present judgment). That order operated pending a return date in March 2013 and was granted in the context of steps taken under the Income Tax Act following SARS-related enforcement measures connected to substantial tax liabilities. The respondent later pursued a challenge in arbitration, but Joffe J delivered an award on 11 December 2012 refusing to suspend any part of the operation or execution of the preservation order and refusing to remove the applicant as curator bonis. A further urgent dispute arose from alleged spoliation concerning the Plettenberg Bay property, which resulted in a spoliation order granted on 8 February 2013.


The present application concerned the respondent’s alleged ongoing refusal to comply with material provisions of the preservation order, including the delivery of corporate books and records, the handover of specified motor vehicles, and permitting access for inspection and valuation of a wine collection and other assets.


2. Material Facts


The court relied on the existence and operative content of the preservation order of 14 November 2012. The order appointed the applicant as curator bonis and vested in him control over specified assets and powers, including powers to take control of a wine collection, to gain access on notice to dwellings for inspection and inventory, to require delivery of company books and records, and to require the handover of motor vehicles belonging to Talacar within a specified period. The order also contained a provision (paragraph 2.23) contemplating the role of a mediator in relation to complaints “as to the way in which this order is implemented”, with potential for speedy arbitration if disputes could not be resolved.


It was undisputed (as treated by the court) that the preservation order was brought to the respondent’s attention and served. The judgment records that a letter dated 15 November 2012 was handed to the respondent on 16 November 2012, and that the order itself was served on the respondent on 16 November 2012. The court further accepted that the order was repeatedly explained to the respondent through correspondence from the applicant’s attorneys.


The court accepted evidence that, after service, the respondent adopted positions and engaged in conduct that impeded the curator’s performance. On 16 November 2012, the respondent informed the applicant that Talacar did not own any wine, and thereafter advised that there was no wine stored at the Sandhurst premises belonging to Talacar, which the court regarded as contradictory in context. The applicant requested details and access relating to bank accounts and corporate records on 16 November 2012, and again by email on 11 January 2013; the respondent replied on 15 January 2013 disputing the applicant’s authority to request the books and documents and to require delivery.


In relation to vehicles, the respondent was advised on 16 November 2012 that Talacar’s vehicles could not be used until the curator was satisfied that they were properly insured. The respondent stated that the vehicles were at a “panel beater” without supplying details. The applicant requested the Ferrari be handed over on 23 November 2012 and proof of insurance be provided; arrangements were shifted and, due to lack of information and pending the arbitration relating to the curator’s appointment, the applicant arranged temporary insurance.


Following the 11 December 2012 arbitration award confirming that the preservation order was not suspended, the court accepted that the respondent nonetheless continued to resist implementation. The judgment records that the respondent committed spoliation in respect of the Plettenberg Bay property on 27 December 2012, which led to an urgent application heard on 22 January 2013 and a spoliation order granted on 8 February 2013. The court also relied on the fact that the respondent had sent an email to estate agents in Plettenberg Bay asserting that the applicant had no right to request agencies to market the properties.


On 11 January 2013, the respondent was requested to make keys available for a Volkswagen Cabriolet and a Mercedes Benz S500 within five days, and was informed that the Ferrari would be removed on 16 January 2013. On the same date, he was notified that the applicant would inspect the Sandhurst property and wine collection on 16 January 2013 at 11h00. The court accepted that on 16 January 2013 the respondent refused the applicant, the sheriff, and a valuator access to the Sandhurst property.


The respondent did not file answering affidavits on the merits by the stated deadline of 5 February 2013. Instead, through his attorneys, he invited removal from the roll and mediation, and forwarded a draft counter-application seeking a stay in terms of section 6 of the Arbitration Act 42 of 1965, relying on paragraph 2.23 of the preservation order. The court treated the counter-application as part of an effort to delay execution rather than as a bona fide dispute about implementation.


3. Legal Issues


The central legal questions were whether the matter was properly to be enrolled and determined as urgent, whether the requisites for a finding of civil contempt of court were satisfied on the stringent standard of proof, and what relief was appropriate to coerce compliance and vindicate the authority of the court.


The contempt enquiry required the court to determine whether an order existed, whether it was served or came to the respondent’s knowledge, whether there was non-compliance, and whether non-compliance was wilful and mala fide. This was principally an issue involving the application of law to fact, coupled with an evaluative assessment of the respondent’s state of mind inferred from conduct and from the absence of evidence rebutting wilfulness and mala fides.


A further issue concerned whether the respondent was entitled to a stay of proceedings under section 6 of the Arbitration Act 42 of 1965, based on the mediation/arbitration mechanism in paragraph 2.23 of the preservation order. This raised a question of interpretation of paragraph 2.23 and the scope of section 6, together with whether the counter-application met statutory requirements and justified a stay.


The respondent also advanced an argument (rejected by the court) relating to whether vesting of the companies’ assets in the curator depended on the applicant first becoming a registered shareholder. This was treated as a legal contention bearing on whether there was any lawful basis to refuse compliance.


4. Court’s Reasoning


On urgency, the court treated ongoing non-compliance with a court order as inherently requiring expeditious determination, both because contempt proceedings aim to compel obedience and because there is a public interest in the administration of justice. The court relied on authority indicating that the ongoing disregard of an order can itself satisfy urgency, particularly where the evidence shows continuing non-compliance. Against the respondent’s contention that the applicant created his own urgency, the court emphasised the history since the preservation order and found that the evidence showed the respondent was continuously disregarding the order. The court therefore held the application to be urgent.


On the counter-application for a stay, the court considered the respondent’s reliance on paragraph 2.23 of the preservation order and on section 6 of the Arbitration Act. The court found, on the facts and as a matter of interpretation, that there was no genuine dispute “as to the way in which this order is implemented”. The court regarded the preservation order as clear and operative, and noted that Joffe J had already refused to suspend its operation. The court accepted that the respondent’s stance was not that the order’s implementation required clarification through mediation, but that he did not intend to comply at all. On that basis, the court found that the counter-application lacked merit and functioned as a further attempt to frustrate execution of the preservation order. The court therefore refused the stay and dismissed the counter-application.


In determining contempt, the court applied the principle that, once the applicant proves the existence of the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to whether non-compliance was not wilful and mala fide. The court identified the standard of proof as beyond reasonable doubt for the requisites of contempt, including wilfulness and mala fides, while recognising that the respondent can create a reasonable doubt by placing evidence before the court.


The court accepted that the order was served and repeatedly brought to the respondent’s attention, and it found that the respondent failed to comply with several specified paragraphs of the order, including obligations regarding cooperation, provision of information, delivery or disclosure of whereabouts of company records, handover of vehicles, access to the wine collection, and access to the Sandhurst property for inspection and valuation. The court’s inference of wilfulness and mala fides rested on a pattern of obstructive conduct over time, including refusals to provide information, refusals to hand over vehicles and keys, refusal of access to the premises, and steps taken that led to spoliation proceedings. The court placed weight on the respondent’s continued resistance even after the arbitration award of Joffe J confirmed that the preservation order remained effective.


The court also addressed and rejected the argument that vesting of assets in the curator depended on the curator first becoming a registered shareholder. By reference to authority on the abstract system of transfer of ownership, the court held that there was no legal reason on that basis for the respondent to refuse to comply with the order’s operative provisions. This rejection formed part of the court’s conclusion that the respondent lacked a lawful justification for non-compliance.


A significant component of the court’s reasoning was that the respondent had chosen not to deal with the allegations in the founding affidavit. In the absence of evidence capable of establishing a reasonable doubt regarding wilfulness and mala fides, and given the factual history the court accepted, the court concluded that contempt of court had been proved and that coercive and punitive measures were warranted to secure compliance.


5. Outcome and Relief


The court declared the matter urgent and found that the respondent was in contempt of the preservation order granted on 14 November 2012.


The court ordered the respondent to purge his contempt within 24 hours of service of the contempt order by delivering all books and records in his possession or under his control relating to Talacar Holdings (Pty) Ltd and Gaius Atticus (Pty) Ltd, including bank statements and formal company documents; by informing the applicant in writing of the whereabouts of such records if not in his possession or control; by handing over keys to identified vehicles so that they could be removed by the sheriff; and by permitting the applicant and a valuator to attend at the Sandhurst property to inspect and value the wine collection and previously attached assets.


The court further ordered that, if the respondent failed to purge his contempt, the sheriff was directed to take all steps necessary to remove the vehicles and to obtain access to the Sandhurst property to enable inspection and valuation. In addition, the respondent was committed to imprisonment for three months, suspended for three years on condition that he was not found in contempt during the period of suspension.


The respondent was ordered to pay the costs of the application on the scale as between attorney and own client, including the costs of two counsel. The counter-application was dismissed with costs, also including the costs of two counsel.


Cases Cited


Victoria Park Ratepayers Association v Greyvenouw CC [2004] 3 All SA 623 (SE)


Protea Holdings Ltd and Wright 1978 (3) SA 865


Noel Lancaster Sands (Edms) Bpk v Theron en Andere 1974 (3) SA 689 (TPA)


Watt v Seaplant 1999 (4) SA 443 (C)


Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA)


Legislation Cited


Arbitration Act 42 of 1965 (section 6)


Income Tax Act (section 163)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the contempt application was urgent because the evidence showed a continuing and deliberate pattern of non-compliance with the preservation order, and because ongoing contempt implicates both the coercive purpose of contempt proceedings and the public interest in the administration of justice.


The court held that the applicant had proved the existence of the preservation order, the respondent’s knowledge of it, and non-compliance with it, and that the respondent had not advanced evidence creating a reasonable doubt that the non-compliance was not wilful and mala fide. On the accepted facts, the court found that contempt of court had been established beyond reasonable doubt.


The court held that the respondent’s attempt to secure a stay under section 6 of the Arbitration Act, relying on the mediation clause in paragraph 2.23 of the preservation order, was without merit because there was no genuine dispute regarding the manner of implementation of the order; rather, there was a refusal to comply with the order. The counter-application was therefore dismissed.


LEGAL PRINCIPLES


Civil contempt requires proof beyond reasonable doubt of the existence of a court order, service or notice (or knowledge) of the order by the respondent, and non-compliance, together with proof beyond reasonable doubt that the non-compliance was wilful and mala fide. Once the applicant proves the order, knowledge, and non-compliance, the respondent bears an evidential burden to advance evidence establishing a reasonable doubt regarding wilfulness and mala fides; failing that, contempt is established.


Ongoing failure or refusal to obey a court order may render contempt proceedings urgent, both because one object of contempt is to compel compliance through sanction and because there is a public interest in vindicating the authority of courts and the administration of justice.


A mediation/arbitration mechanism directed at complaints about the manner of implementing an order does not, on the court’s approach, justify a stay where the respondent’s stance is a wholesale refusal to comply with clear operative terms of an order, particularly where prior proceedings have confirmed the order’s immediate effect. Section 6 of the Arbitration Act 42 of 1965 does not, on the facts as assessed, preclude the court from determining contempt where the statutory and contextual requirements for a stay are not satisfied.


In rejecting the respondent’s vesting-related argument, the court applied the principle that South African law recognises an abstract system of transfer of ownership, in terms of which the requisite intention to transfer and receive ownership is central, and defects in an underlying transaction do not necessarily prevent transfer; the court treated this as removing any legal basis for refusing compliance with the preservation order’s operative provisions.

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[2013] ZAGPPHC 68
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Murray NO v King (5984/2013) [2013] ZAGPPHC 68 (22 February 2013)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 5984/2013
Date:
22 February 2013
In
the matter between:
CLOETE
MURRAY N.O
.
…................................................
Applicant
and
DAVID
CUNNINGHAM KING
............................................
Respondent
JUDGMENT
PRETORIUS
J.
[1]
In this urgent application the court is requested to declare the
respondent to be in contempt of the preservation order granted
by the
Deputy Judge President, Mr Justice van der Merwe on 14 November 2012
under case number 6554/2012. Secondly the court is
requested to
direct the respondent to purge such contempt within 24 hours of
service of the court order. Should the respondent
fail to purge his
contempt it is requested that the respondent be committed to prison,
alternatively that a fine be imposed on
him and the Sheriff of this
court be directed to take all and any steps necessary to:
“
-remove
the vehicles referred to in paragraphs 3.3 to 3.5 of the notice of
motion;
-obtain
access to the respondent’s home for the purpose of enabling the
applicant to inspect the wine collection and the assets
which were
attached in terms of the order so that they can be valued; and
-search
for and locate any books or document relating to the affairs of
Talacar Holdings (Pty) Ltd (“Talacaf) and Gaius Atticus
(Pty)
Lts (“Gaius Atticus”) in the possession or under the
control of the respondent, including, in particular, all
bank
statements and formal company documents (including, but not limited
to, minutes of meetings, shareholder registers and financial

statements). ”
[2]
The respondent was obliged to file answering papers, if any, by 12h00
on 5 February 2013. The respondent’s attorney addressed
a fax
to the applicant’s attorney on 5 February 2013, which was
delivered on 7 February 2013. The respondent’s attorney
invited
the applicant to remove the application from the roll and submit the
matter to mediation.
The
applicant’s attorney replied that the respondent is obliged to
record his defence in an answering affidavit. On 6 February
2013 the
respondent’s attorney forwarded a draft notice of motion and an
unsigned affidavit in a counter application for
the stay of the
urgent application in terms of
section 6
of the
Arbitration Act, 42
of 1965
and a referral to mediation of the disputes. The respondent
relied on paragraph 2.23 of the preservation order when requesting a

stay of the present application.
Urgency:
[3]
The respondent’s counsel argued that the matter is not urgent
and that the applicant had created his own urgency. In Victoria
Park
Ratepayers Association v Greyvenouw CC [2004] 3 AIISA 623 (SE) it was
held by Plaskett AJ at paragraph [27]:
“
I
would add that it is not only the object of punishing a respondent to
compel him or her to obey an order that renders contempt
proceedings
urgent: the public interest in the administration of justice and the
vindication of the Constitution also render the
ongoing failure or
refusal to obey an order a matter of urgency. This, in my view, is
the starting point: ail matters in which
an ongoing contempt of an
order is brought to the attention of a court must be dealt with as
expeditiously as-the circumstances,
and the dictates of fairness,
allow."
(Court’s
emphasis)
[4]
In Protea Holdings Ltd and Wright
1978 (3) SA 865
it was held by
Nestadt J at 868 A-B
“
It
becomes necessary, therefore, that this provides a convenient stage,
to deal briefly with the nature of contempt proceedings
of this kind.
The object of this type of proceeding, which is concerned with the
wilful refusal or failure to comply with an order
of Court, is the
imposition of a penalty in order to vindicate the Court's honour
consequent upon the disregard of its order”
(Court’s
emphasis)
and
at H
“
As
one of the objects of contempt proceedings is by punishing the guilty
party to compel performance of the order, it seems to me
that the
element of urgency would be satisfied if in fact it was shown that
respondents were continuing to disregard the order
of 3 August 1977.”
[5]
If the court considers the history of the matter, since the
preservation order had been granted, I find the application to be

urgent, as the evidence shows that the respondent is continuously
disregarding the order.
Background:
[6]
The respondent relied on paragraph 2.23 of the preservation order
when requesting a stay of the present application. Paragraph
2.23 of
the preservation order provides:
“
In
addition and in general the mediator can be approached at any stage
with any compliant as to the way in which this order is implemented

and will act as mediator. If the dispute cannot be resolved by him,
he may arrange for a speedy arbitration thereof. The mediator
can act
as the arbitrator, unless the mediator is of the opinion that he is
disqualified from acting as arbitrator or that it is
otherwise
advisable, in the interests of the company concerned, that someone
else should act as arbitrator. ”
[7]
There is a dispute between the parties as to the interpretation of
paragraph 2.23 of the preservation order. This preservation
order was
granted with the return date 19 and 20 March 2013. This order was
granted in terms of section 163 of the Income Tax Act,
after SARS had
obtained a judgment in its favour on 5 August 2010 in terms of which
100% of the issued shares in Talacar Holdings
(Pty) Ltd, Talacar and
Metlika Trading Limited’s shareholders loan account were
declared executable. This was to satisfy
Ben Nevis Holdings Limited’s
tax debts which currently exceed R2,6 billion.
[8]
The applicant was appointed curator bonis in whom the assets, as set
out above, vested. The directors of Talacar and Gaius Atticus
were
ordered to immediately deliver the books and records under their
control and in their possession relating to inter alia, the
affairs
of Talacar and Gaius Atticus and to inform the applicant of the
whereabouts of these documents if they were not in the
possession of
the directors. It was set out in 2.4.5 and 2.6 that:
“
2.4
The present director or directors of Talacar and Gauis Atticus are
ordered to:
2.4.5
To assist and co-operate with the curator bonis at all reasonable
times as may reasonably be required of him/her, and to provide
the
curator bonis with any information about the company’s affairs
as may reasonably be required, including full particulars
of all
insurance contracts in respect of the assets of the companies, which
information must be furnished to the curator bonis
forthwith.
2.6
In addition to what has been provided for above any person having
documentation or assets of Talacar or Gauis Atticus in his
or her
possession, must, subject to what provided for below, when this order
comes to that person’s knowledge notify the
curator of the fact
that such are in his or her possession and hand such to the curator
bonis on demand, or within such time as
the curator bonis may allow
and, should that, for any valid reason, not be
possible,
or should the person have a right to retain possession, then such
person must make the documents or assets available to
the curator
bonis for inspection and to supply the curator with copies of any
document pertaining to such company on demand by
the curator bonis.
2.13
Within seven days of the granting of this order all motor vehicles
belonging to Talacar must be handed to the curator bonis.
Pending
such delivery such motor vehicle may be used by the person presently
entitled to use such vehicle, provided that before
any such use the
curator bonis be satisfied, by presenting to him of such proof as he
may reasonably require that the vehicle is
properly insured in favour
of Talacar and that the vehicle will only be utilised in terms of the
restrictions of such insurance
policy. In case of no insurance
existing the curator bonis may obtain such insurance, after which the
said vehicle may be utilised
as provided for above. In case of any
dispute in this regard the ruling of the Mediator will be final.
2.14
The curator bonis will be entitled to take immediate control of the
wine collection of Talacar and to take all steps required
in his
discretion to ensure that all wines are properly preserved. All
reasonable steps to ensure
the
above may be taken, including sealing of the access to the wine
collection and putting guards in place, or the removal thereof
to
suitable other premises.
2.15
In addition to any other powers set out elsewhere herein the curator
bonis will be entitled on 24 hours’ notice to the
occupant in
control to access any dwelling belonging to Talacar and Gauis Atticus
occupied by anyone for the purpose of inspection
of the premises and
the making of an inventory of all movable items and fixtures and
fittings. The curator may take photos and
may make a video recording.
The curator will be entitled to request any person to give him
information as to insurance of the articles
in his or her possession,
if any, and to give information in respect of any claim of right to
possess any article.
2.18
The curator may dispose of assets belonging to Talacar and assets
belonging to Gauis Atticus by means of auction or out of
hand
sales..."
[9]
According to Deeds office searches the applicant ascertained that
Gaius Atticus and Talacar are co-owners of the property at
54 Beachy
Head Drive, Plettenberg Bay. Talacar is the owner of erf 2258,
Blanco, Fancourt Golf Estate, as well as the owner of
erfs 22 and 23
situated at 34 Coronation Road, Sandhurst, Sandton. Talacar owns a
Ferrari, registration number HPS274GP parked
at Sandhurst; a VW
cabriolet, registration number CL26465 parked at Fancourt; a Mercedes
Benz S500, registration number JJY630GP
parked at Fancourt; Mercedes
Benz registration number LGD145GP and Mercedes Benz registration
number CBG439GP- whereabouts unknown
to the applicant.
[10]
The applicant took possession and control of the Plettenberg Bay and
Fancourt properties in terms of the order.
The
respondent’s actions:
[11]
A letter dated 15 November 2012 was handed to the respondent on 16
November 2012 referring him to the preservation order. The
order was
served on the respondent on 16 November 2012. On 16 November 2012 the
respondent informed the applicant that Talacar
did not own any wine.
Thereafter the respondent advised that applicant that there was no
wine stored on the premises at Sandhurst
belonging to Talacar, which
is a contradiction as to the first statement.
[12]
On 16 November 2012 the applicant requested the respondent to make
available all particulars of the bank accounts of the respondents
in
the preservation application. A further request in this regard was
sent by e-mail on 11 January 2013 to which the respondent
replied on
15 January 2013. The respondent disputed the applicant’s
authority to request the said books and documents and
to hand it over
in this reply.
[13]
On 16 November 2012 the respondent was advised, in writing, that the
vehicles of Talacar could not be used until the applicant
was
satisfied that the vehicles were properly insured. The respondent
confirmed that all the vehicles belonging to Talacar were
at the
premises of a “panel beater” without providing any
details of the panel beater. On 19 November 2012 the applicant

requested the respondent to hand over the Ferrari on 23 November 2012
at 10h00 and to provide proof of insurance. This arrangement
was held
over until 27 November 2012 should the applicant provide proof of
insurance. Due to the lack of the requested information
and pending
arbitration by Mr Justice MM Joffe on the validity of the applicant’s
appointment inter alia, the applicant arranged
temporary insurance
for the Ferrari.
[14]
On 11 December 2012 Joffe J handed down an award refusing to suspend
any part of the operation or execution of the preservation
order and
refusing to remove the applicant as curator bonis.
[15]
Since 11 December 2012 the respondent has thus known that the
original order was unaffected. Thereafter the respondent committed

spoliation in respect of the Plettenberg Bay property on 27 December
2012, which resulted in an urgent application on 22 January
2013.
This spoliation order was granted on 8 February 2013 by this court.
[16]
This was as a result of the actions by the respondent, who had
addressed an e-mail to all the estate agents in Plettenberg
Bay
wherein he asserted that the applicant had no right to request the
agencies to market the properties.
[17]
On 11 January 2013 the respondent was requested to make available the
keys to the Volkswagen Cabriolet and the Mercedes Benz
S5000 within 5
days. The respondent was informed that the Ferrari would be removed
on 16 January 2013. On the same date the respondent
was advised that
the applicant would inspect the Sandhurst property and the wine
collection on 16 January 2013 at 11 h00. The applicant
blocked the
Talacar bank account as he had not received a reconciliation from the
respondent since 14 November 2012, as arranged.
The respondent was
informed on 11 January 2012 that an eviction application would be
launched to evict the respondent from the
Sandhurst property.
[18]
On 15 January 2013 the respondent’s attorney’s replied to
the letters of 11 January 2013 and disputed that the
applicant is
validly appointed as curator bonis and that it is incumbent on the
applicant to ensure that the order is executed.
[19]
He furthermore disputed the applicant’s authority to request
books and documents, refused to hand over any of the vehicles
and
also refused to make the Sandhurst property or the wine collection
available for inspection. On 16 January 2013 at 11h00, the
respondent
refused the applicant, the sheriff and the valuator access to the
property.
Contempt
of court:
[20]
The court must be satisfied, beyond a reasonable doubt, that:
“
an
order was granted:
-against
the respondent;
-the
respondent was either served with the order or was informed of its
contents and had knowledge of the same; and -the respondent
disobeyed
the order or neglected to comply with
it.”
[21]
The respondent must establish reasonable doubt, as soon as the
aforesaid requisites have been satisfied. “Reasonable
doubt”
relates as to whether the non-compliance to the order was wilful and
mala fide. In Noel Lancaster Sands (Edms) Bpk
v Theron en Andere 1974
(3) 689 (TPA) Botha J held at p 692 E - G:
“
Daar
is natuurlik vanselfsprekend grade van onredelikheid en dit mag we\
gebeur dat 7? respondent se optrede so opsigtelik en skreiend

onredelik is dat die Hof bereid is om
op
grond daarvan sy verklaring dat hy bona fide opgetree het te verwerp
as onwaar, maar dan sou die beslissing teen die respondent
gaan op
die basis van 'n bevinding dat hy nie bewys het dat hy bona fide was
nie, en die onredelikheid van sy optrede sou siegs
die metode wees om
tot by daardie resultaat uit te kom.” (Court’s emphasis)
[22]
It is quite clear from all the respondent’s actions since the
preservation order was granted on 14 November 2012 that
the
respondent has tried everything to avoid the order being executed. He
has been obstructive in every respect and his actions
has lead to a
spoliation application against him and a finding by Joffe J
confirming the perservation order on arbitration. These
legal actions
have not deterred the respondent at all from being totally
obstructive. He has refused steadfastly to co-operate
with the
applicant in any manner. There is no dispute that the order had been
served and explained to the respondent in numerous
letters by the
applicant’s attorneys. It is clear that the respondent is
deliberately and wilfully obstructing the applicant
to avoid the
preservation order being executed.
[23]
This court has no doubt that the respondent has disobeyed the order
and failed to comply with paragraphs 2.1; 2.4.1; 2.4.2;
2.4.5; 2.6;
2.13; 2.14 and 2.15 of the order.
[24]
I have no qualms in finding this matter urgent, as the respondent has
steadfastly disobeyed and ignored the order and the award
by Joffe J.
It is clear from his actions that he has no intention of complying
with the preservation order. He has been granted
ample opportunity to
comply, but has refused to do so. It is urgent that the applicant
should be allowed to execute the order.
[25]
The argument by Mr Louw, for the respondent, that the vesting of the
assets of the companies in the applicant will only take
place once he
is the registered shareholder of companies cannot be entertained.
[26]
In Watt v Seaplant
1999 (4) SA 443
CPD Traverso J held at p 448 C -
D:
“
It
is well-established that our law recognises the abstract system of
transfer of ownership. All that is therefore required is that
the
transferor must have the animus transferendi dominii and the
transferee the animus accipiendi dominii. Any flaw in the underlying

transaction is therefore irrelevant.’’ (Court’s
emphasis)
[27]
There is thus no legal reason for the respondent to refuse to comply
with paragraphs 2.4; 2.5; 2.6 and 2.7.
[28]
It is clear there is no dispute as to the way in which the order
should be implemented. It is very clear and the respondent
does not
dispute it. The respondent does not want to comply with the
preservation order at all. There is no dispute “as to
the way
in which this order is implemented.” It is clear that Joffe J
decided that the order has immediate effect and should
not be
suspended. There is confirmation in writing by the respondent’s
attorneys that he has no intention of complying with
the requests
made by the applicant. I find that there is no merit in the
counter-application, it is a further effort to frustrate
the
applicant in executing the order.
[29]
I have regarded the counter application for stay of the urgent
application in terms of section 6 of the Arbitration Act 42
of 1965.
(Paragraph 2.23 of the order reads inter alia:
“
In
addition and in general the mediator can be approached at any stage
with any complaint as to the way in which this order is implemented

and will act as mediator. ”
[30]
The date set out in the application for the stay of the urgent
application is 8 March 2013. It was served on 7 February 2013.
In
this application the respondent relies on
section 6
of the
Arbitration Act 42 of 1965
.
Section 6
provides:
“
6
Stay of legal proceedings where there is an arbitration agreement
(1)
If any party to an arbitration agreement commences any legal
proceedings in any court (including any inferior court) against
any
other party to the agreement in respect of any matter agreed to be
referred to arbitration, any party to such legal proceedings
may at
any time after entering appearance but before delivering any
pleadings or taking any other steps in the proceedings, apply
to that
court for a stay of such proceedings.
[31]
It does not preclude the court to decide on a matter. I cannot find
that the respondent has made out a proper case in the counter

application. It was merely launched to further delay and frustrate
the execution of the preservation order. The mediation clause
in the
preservation order is clear and does not relate to a refusal to
comply with the order in all respects.
[32]
There is no doubt that the respondent will not comply with the court
order as Joffe J has already ruled and made an order to
the effect
that the order has immediate effect and should not be suspended. The
respondent steadfastly refuses to comply at all.
There is no dispute
or complaint as to the way in which the order is implemented, the
respondent refuses pointblank to obey the
order.
[33]
The applicant undertakes not to seek an order in terms of prayer 3.5
of the notice of motion, should the respondent undertake
to forthwith
deliver the Ferrari to Mr Strydom of PWC according to the new order
granted.
[34]
The respondent chose not to deal with the allegations in the founding
affidavit. In Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
at paragraph 42 Cameron JA found:
“
To
sum up:
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala f\des) 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.”(Court’s

emphasis)
[35]
I can come to no other conclusion but that contempt of court has been
proved. The respondent did not advance any evidence to
show that he
was not wilful and mala fides. All the evidence show that the
respondent is obstructing the court order wilfully and
has no
intention to comply with the order. Therefore I find the respondent
in contempt of court.
[36]
I therefore make the following order:
1.
The matter is urgent;
2.
The respondent is in contempt of the court order granted by His
Lordship Mr Justice van der Menwe on 14 November 2012 in the
above
Honourable Court Case under case no. 65542/2012 (‘the order”)
3.
The respondent is ordered to purge his contempt of the order within
24 hours of service of this order by:
3.1
Delivering to the applicant, in his capacity as curator bonis, all
books and records in his possession or under his control
relating to
the affairs of Talacar Holdings (Pty) Ltd (“Talacar”) and
Gaius Atticus (Pty) Ltd (“Gaius Atticus”)
including, in
particular, all bank statements and formal company documents
(including but not limited to minutes of meetings) in
accordance with
paragraphs 2.4 of the order;
3.2
Insofar as the respondent is not in possession or does not have
control of the books and records referred to in paragraph 3.1
above,
the respondent is required to inform the applicant in writing as to
the whereabouts of such records in accordance with paragraph
2.4.2 of
the order;
3.3
Handing the keys of the Volkswagen Golf Cabriole’ with
registration number parked in the garage at 54 Beachy Head Drive,

Plettenberg Bay (“the Plettenberg Bay property”) so that
same can be removed by the Sheriff;
3.4
Handing over the keys to the Mercedes
S500
vehicle with registration
number JJY 630 GP currently parked at Erf 2258, Blanco, George
situated in the Fancourt Golf Estate (“the
Fancourt property”)
so that same can be removed by the Sheriff;
3.5
Handing over the keys to the Ferrari with registration number HBS 274
GP currently parked in the garage at 34 Coronation Drive,
Sandhurst
(“the Sandhurst property”) and giving the sheriff and
applicant access to the Sandhurst property so that
the vehicle can be
removed;
3.6
Permitting the applicant and a valuator to attend at the Sandhurst
property for the purpose of inspecting and valuing the wine

collection and the assets previously attached.
4.
In the event of the respondent failing to purge his contempt in
terms
of paragraph 3 above:-
4.1
The Sheriff of the above Honourable Court is directed to take all and
any steps necessary to ensure the removal of the vehicles
referred to
in paragraphs 3.3 to 3.5 above;
4.2
The Sheriff is directed to take any steps necessary to obtain access
to the Sandhurst Property to enable the applicant to inspect
the wine
collection and the assets attached and to have them valued;
4.3
The respondent is committed to prison for a period of 3 months
imprisonment suspended for 3 years on condition that the respondent

is not found in contempt of court during the period of suspension.
5.
The respondent is ordered to pay the costs of this application on the
scale as between attorney and own client, such costs to
include the
cost of two counsel.
6.
The counter application is dismissed with costs, including the costs
of two counsel.
Judge
Preorius
Case
number: 5984/2013
Heard
on: 13 February 2013
For
the Applicant / Plaintiff: Adv Luderitz SC
Instructed
by: Gildenhuys Malatji INC
For
the Respondents: Adv Louw SC ,Adv Gioiua
Instructed
by : Routledge Modise INC
Date
of Judgment : 22 February 2013

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