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[2013] ZAFSHC 172
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Richards v Mgojo and Others, Mgojo v Richards and Others (919/2013, 372/2013, 1559/2013) [2013] ZAFSHC 172 (26 September 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No.: 919/2013
372/2013
1559/2013
In the appeal between:-
TERTIA RICHARDS
.
....................................................................................
Applicant
and
CAROLINE KEKEUOE MGOJO
........................................................
1
st
Respondent
WELKOM, RIGGING & LABOUR
HIRE CC
.....................................
2
nd
Respondent
[Registration Number: 1996/061149/23]
THE SHERIFF, WELKOM
..................................................................
3
rd
Respondent
In
Re
: Application No.:
919/2013
CAROLINE KEKEUOE MGOJO
..................................................................
Applicant
And
TERTIA RICHARDS
.
..........................................................................
1
st
Respondent
WELKOM, RIGGING & LABOUR
HIRE CC
......................................
2
nd
Respondent
[Registration Number: 1996/061149/23]
STANDARD BANK OF SOUTH AFRICA
..........................................
3
rd
Respondent
______________________________________________________________
HEARD ON:
12 SEPTEMBER
2013
______________________________________________________________
DELIVERED ON:
26
SEPTEMBER 2013
______________________________________________________________
MOLEMELA, J
[1] This is the return day of a rule
nisi
granted on the 29
th
August 2013.
[2] The applicant and the first
respondent are the only members of a close corporation known as
Welkom Rigging & Labour Hire
CC (“the close corporation”).
On the 7
th
March 2013 the first respondent moved for and
obtained an
Anton Pillar
order on an
ex parte
basis
authorising the sheriff of the High Court, Welkom, to
inter alia
search for and attach the documents of the close corporation in
question.
[3] In those proceedings the first
respondent described the purpose of the application as follows:
“
The
purpose of this application is to seek an order authorising the
search, seizure and attachment of documents in the possession
of the
respondents and to preserve such documents to serve as evidence in
the matter between applicant and the five respondents
in the matter
under case number 372/2013 in this Honourable Court.”
[4] The salient parts of the order
granted by the court on the 7
th
March 2013 are the
following:
“
[4]
Subject to paragraph 6 hereof, the sheriff is authorised to attach
any document which is printed out by any of the aforesaid
persons and
is directed to remove any attached document in respect of which the
applicant or the applicant’s attorney does
not give a different
instruction. The sheriff is directed to keep each removed item in
his/her custody until the applicant authorised
(
sic)
its
release to the respondents or this court directs otherwise.
[8] Unless a different
direction is obtained from the court, Applicant and the Applicant’s
attorney will, two days after this
order has been executed, become
entitled to inspect any of the removed items in order to assess
whether it provide (
sic)
evidence
relevant to the present application or to further legal proceedings
envisage in the application.”
The order was executed and documents
were seized and attached by the sheriff.
[5] It is common cause that during
March 2013 the first respondent’s attorneys removed the
documents that were seized and
attached by the sheriff from the
latter’s custody. It is also common cause that correspondence
was exchanged by the parties
regarding removal of such documents from
the sheriff by the first respondent’s attorneys. It is clear
from such correspondence
that the parties were at loggerheads
regarding the interpretation of the court order. The respondent’s
attorneys were adamant
that the removal of the documents was in
accordance with the court’s order, hence applicant’s
launching of the application
on an urgent basis.
[6] On the 29
th
August
2013, the court granted condonation of non-compliance with court
rules and issued a rule
nisi
calling upon the first respondent
to show cause why certain orders should not be granted. The court
also granted an order with
immediate interim effect in respect of the
return of the removed items.
POINT
IN LIMINE
[7] The first respondent contended
that this court lacks jurisdiction to entertain this matter because
the application brought by
the applicant was practically the same as
the application for reconsideration which was previously brought by
the applicant and
directed at the order granted on and
ex parte
basis on the 7
th
March 2013. It was contended that the
application ought to be dismissed on the basis of
res iudicata,
given that the matter reached finality when the applicant
unsuccessfully applied for reconsideration of the order that was
granted
on an
ex parte
basis on the 7
th
March 2013.
It was also contended that the matter ought to be dismissed on
account of a lack in urgency. I dismissed both points
for lack of
merit. It was clear that whereas the applicant had previously sought
a reconsideration of a portion of the court’s
order granted on
the 7
th
March 2013, she, in this application sought the
enforcement of that order. On the aspect of urgency, it is clear from
the court’s
order that the court (Daffue, J) had, on the 29
th
August 2013, granted condonation of non-compliance with rules,
meaning that the court had already accepted that the matter was
urgent. There was a dispute between the parties pertaining to whether
the respondent had, on the day of the granting of the rule
nisi,
acquiesced to urgency or not. In my view, it is immaterial whether
there was an acquiescence or not as the court, wrongly
or rightly,
made a decision on that aspect on the 29
th
August 2013
already. Thus, a consideration of urgency was water under the bridge.
In any event, the first respondent, in her affidavit
expressly
conceded urgency when she stated as follows:- “I submit that
the only issue that is urgent is that applicant has
to comply with
the statute relating to BEE legislation and CC Act”.
EVALUATION OF THE PARTIES’
SUBMISSIONS
[8] I agree with the applicant’s
contention that the contents of the order are clear and unambiguous.
The meaning of the word
“inspect” is clear. The ordinary
meaning of this word entails looking at something and certainly does
not entail removing
the item being inspected. Expressed differently,
inspecting and removing have two distinct meanings and could never be
mistaken
for synonyms. The same applies to the meaning of clause 8 of
the order, which makes it clear that the removal of the items at the
applicant’s instance would be for purposes of returning the
items to the applicant in this matter. I am thus not persuaded
by the
first respondent’s attempts at inserting or reading words into
the court’s order, when such words are not contained
in that
order. The order clearly states that the items that have been removed
must be kept in the sheriff’s custody.
[9] Another reason why the
interpretation attached by the first respondent to the order is not
sustainable is that the general approach
to
Anton Pillar
orders
is that such orders normally provide for retention by the sheriff of
all items in his possession. As Anton Pillar orders
are a drastic
remedy that is usually granted on an
ex parte
basis, courts
demand strict compliance therewith.
[10] I now turn to deal with the
prayer for the respondent to be held to be in contempt of court and
to be sentenced accordingly.
The test to determine whether a party is
in contempt of court or not was eloquently stated as follows as
follows in
Fakie NO V CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
: -
“
[41]… Once the applicant proves
the three requisites (order, service and non-compliance), unless the
respondent provides
evidence raising a reasonable doubt as to whether
non-compliance was wilful and mala fide, the requisites of contempt
will have
been established… is that the respondent no longer
bears a legal burden to disprove wilfulness and mala fides on a
balance
of probabilities, but need only lead evidence that
establishes a reasonable doubt. It follows, in my view that
establishes a reasonable
doubt. It follows, in my view, that Froneman
J was correct in observing in Burchell (in para [24]) that, in most
cases, the change
in the incidence and nature of the onus will not
make cases of this kind any more difficult for the applicant to
prove. In those
cases where it will make a difference, it seems to me
right that the alleged contemnor should have to raise only a
reasonable doubt.”
[11] Although the first respondent
initially disputed the terms of the settlement negotiations entered
into by the parties subsequent
to the issuance of the rule nisi, it
is clear from the papers that the parties did in fact agree that some
of the documents seized
by the sheriff would be taken to an
independent auditor so that the close corporation could be valuated,
alternatively so that
the first respondent could valuate her member’s
interest in the close corporation. It is also clear from the papers
that
the first respondent considered herself to be entitled to remove
the documents in question not only for inspection purposes but
also
for purposes of an auditor’s assessment of her member’s
interest in the close corporation. The applicant’s
own averment
that she was at some point informed by an employee of the first
respondent’s attorneys that some of the documents
she was
seeking had already been taken by the first respondent’s
auditors serves to disprove any mala fides on her part.
Although the
interpretation attached by the first respondent to the court’s
order was obviously erroneous, I am of the view
that the parties’
own agreement to deviate from the strict provisions of the order
serves to disprove any wilfulness on the
first respondent’s
part and it cannot be said that she deliberately disobeyed the
court’s order. In my view the first
respondent has established
a reasonable doubt as to the wilfulness disobedience of the court
order. I am thus satisfied that under
such circumstances, I am unable
to find that the first respondent was or is in contempt of court of
the order granted on the 7
th
March 2013.
Costs
[12] It was argued on behalf of the
first respondent that since she is unemployed and is being
represented in the current proceedings
on a pro bono basis, a cost
order should not be made if her opposition of the application turns
out to be unsuccessful. The applicant
contended that this application
relates to a commercial matter and there is thus no reason to depart
from the general rule that
costs must follow the result. In
considering this issue, I have taken into account that both parties
to the dispute agreed to a
deviation from the court’s order in
that they agreed that the documents could be removed from the
sheriff’s custody
and be taken to the auditors for purposes of
finalising the audit and hopefully settling the dispute. This
agreement between the
parties is most probably what influenced the
sheriff (third respondent) to agree to release the seized items to
the first respondent’s
attorneys. Considering that the origin
of non-compliance was the parties’ settlement negotiations, I
am of the view that
an appropriate order under such circumstances is
one requiring each party to pay its own costs.
[13] Having considered all the
circumstances I am of the view that only those parts of the rule nisi
that were made to have immediate
legal effect on the 7
th
March 2013 need to be confirmed.
[14] I therefore grant the following
order:-
The first respondent is ordered to
return all documents which were under attachment in the third
respondent’s custody in
execution of the Court order by this
Court under civil application cover number 919/2013, to the
Sheriff’s custody without
further delay.
The third respondent is ordered to,
without delay after receipt of the documents from the first
respondent, prepare an inventory
of the documents received from the
first respondent and to report to the Honourable Court with regards
to any documents that
were under attachment in the third
respondent’s custody prior to the removal by the first
respondent, which have not been
returned by the first respondent.
There
is no order as to costs.
_________________
M.B. MOLEMELA, J
On behalf of applicant: Adv N
Snellenburg
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of respondents: Mr Mostert
Instructed by:
Bokwa Attorneys
BLOEMFONTEIN
/sp