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[2013] ZAKZDHC 38
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Imperial Crown Trading 176 (Pty) Ltd and Another v Lahaf (Pty) Ltd and Others (12375/2012) [2013] ZAKZDHC 38 (31 July 2013)
3
IN THE
KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF
SOUTH AFRICA
CASE NO: 12375/2012
In the matter between:
IMPERIAL CROWN TRADING 176(PTY) LTD
...........................
FIRST APPLICANT
HARESH OUDERAJH
............................................................
SECOND
APPLICANT
And
LAHAF (PTY) LTD
..................................................................
FIRST
RESPONDENT
KWADUKUZA MUNICIPALITY
.........................................
SECOND
RESPONDENT
CONSTRUCTION ID (PTY) LTD
............................................
THIRD
RESPONDENT
BRUCE RENKEN
...............................................................
FOURTH
RESPONDENT
PAUL RENKEN
.......................................................................
FIFTH
RESPONDENT
JUDGMENT
SISHI J
Introduction
[1] This is an application for
contempt of an order issued by this Court on 21 August 2012, against
the respondents.
[2] The first applicant is the
Landlord of the premises situated at Ballito Bay Shopping Mall in
Ballito KwaZulu-Natal which is
a short distance from the building
owned by the first respondent at Ballito Lifestyle Centre in main
road Ballito, KwaZulu-Natal.
The second applicant is the managing
director of the first applicant. The first respondent is a company
which carries on business
as a property owner and property developer
in Balito KwaZulu-Natal. The second respondent is KwaDukuza
Municipality which has been
joined in as an interested party in this
application. The third respondent is a construction company which
carries on business
as builders with its principal place of business
at 40 Randwood Close, Glenashley, Durban, KwaZulu-Natal. The fourth
and the fifth
respondents are brothers, they are directors and
shareholders of the first respondent.
Background
[3] The first respondent is the
registered owner of the immovable property, Lot 3761, Main road
Ballito on which the Ballito Lifestyle
Centre, has been built. The
first respondent is also the owner of Ballito Lifestyle Centre.
[4] On 6 July 2012, under case No.
6960/2012, the applicants launched an urgent application heard on the
same date against the first,
second, and third respondents for an
interdict stopping certain alleged unlawful building works that were
allegedly taking place
upon the premises at the Ballito Lifestyle
Centre owned by the first respondent.
[5] It is common cause that an order
was granted by this court interdicting the respondents from
conducting any building work until
plans were approved and that the
respondents had had notice of the court order.
[6] In terms of this court order, the
respondents were interdicted and restrained from conducting any
further building work and
which interdict was to operate as long as
the respondents did not have any building permission authorising
construction or other
building work. It is also common cause that the
respondents have not obtained such authority or permission.
[7] The court order issued on 21
August 2012, read as follows:
“
It is
ordered,
That the first and the third
respondents be and are hereby interdicted and restrained from
performing any further building any
further building work on the
property described as Lot 3671 Ballito, known as the Balito
Lifestyle Centre, Ballito, KwaZulu –
Natal, with immediate
effect;
That this interdict shall operate for
so long as the first respondent does not have approved building
plans or early building
permissions, in terms of section 7(6)
authorising construction or other building work that may be
undertaking on the property
in question in terms of the National
Building Regulations and Building Standards Act 103 of 1977”.
[8] The applicants’ case is that
the first, third and fourth respondents were ordered by this Court,
not to conduct any building
operations until such time that they were
in possession of the said building plans. The respondents proceeded
to conduct building
operations regardless of the court order and in
defiance of two stop work notices issued by the second respondent.
According to
the applicants they had no alternative but to institute
contempt proceedings.
[9] The respondents argued that the
activities carried out by the first respondent on the building site
and the centre did not constitute
building work, as contemplated in
the court order and the National Building Regulations and Building
Standard Act 103 of 1977 (the
Act).
[10] It is evident from the
correspondence exchanged between the parties that the respondents’
attitude is that of denial
that any building work is taking place on
the site.
[11] In paragraph 45 of the answering
affidavit of the fourth respondent, he has alleged:
“
It is
relevant to note that all work performed since the interdict was
imposed:
is of a temporary nature and will be
demolished and removed if and when building operations resume;
was for cleaning, site safety and
security, health, drainage and tenant operations;
is not reflected in the construction
drawings/specifications;
has not furthered the building
process.”
[12] In paragraph 46 of the same
answering affidavit, the following is alleged:
“
The work
that has been performed on the site is essentially described in my
letter dated 26 October 2012 to the second respondent
being annexure
“N1” and “N2” to the applicants’
founding affidavit.”
[13] Paragraphs 3 and 4 of the letter
referred to above reads as follows:
“
... any
activity taking place on site is to effect this decision and to
ensure the safety and security of the site and of the tenants,
their
assets, operations, employees, customers and suppliers.
A detailed list of the activities
being conducted on site is listed below:
General cleaning of site;
Removal of building materials, such
as sand, stone etc, from site;
Removal of rubble and excess soil
from site;
Removal of equipment, such as
scaffolding etc from site;
Relocation and storage of equipment
and building materials on site;
Reconnection and/or diverting
existing storm water drainage which has been damaged in the
construction process;
Installing two new temporary storm
water drains to manage flooding in the building site area;
Removing soil from open foundations
and excavations and replacing this soil with crusher (to manage
flooding and allow access
to Super Spa, receiving area and supplier
deliveries).
Removal, repair and/or reinstatement
of existing shade cloth, fencing and hounding.
Installation of new shade cloth,
fencing, hoarding and access gates where this is required from a
site safety, security and management
perspective and from a tenant
and their safety, security and operational perspective. ...”
[14] In paragraph 47 of the answering
affidavit the fourth respondent made the following allegations:
“
In addition
thereto, three other items of work were undertaken namely:
Coating the exposed re-enforcing rods
(rebar’s) with anticorrosive material to preserve their
structural integrity. Such
treatment was only required because of
the site shutdown;
Filling the dangerous cavities being
the open trenches, foundations and column bases with G5 crusher.
This was also for safety
and health purposes;
Applying pre-mix to the G5 crusher
which was introduced to the open trenches, foundations and column
bases. This was for site
safety, security, health, drainage and
tenant operations.
[15] The fourth respondent further
alleged in the answering affidavit that, not only was all of this
work reasonably required but
also essential to the exercise of
shutting down the site indefinitely in terms of the decision taken at
the meeting of the professional
team on 16 October 2012.
[16] It is common cause that two stop
work notices were issued to the respondents by officials of the
second respondent. These were
issued on 26 October 2012 and 9
November 2012 respectively. Paragraphs 1, 2 and 3 of the first notice
to stop building work reads
as follows:
“
The
KwaDukuza Municipality is empowered in terms of Section 2 of the
National Building Regulations Act 103 of1977 (“the Act”)
to enforce the observance of all the provisions of the Act with
respect to land within the jurisdiction of the KwaDukuza
Municipality.
In terms of section 4(1) of the said
Act, no person shall erect any building in respect of which plans and
specifications are to
be drawn and submitted in terms of this Act,
without the prior approval in writing of the Local Authority in
question.
Recent inspections of the property
described as Lot 3671 BA reveal that work had commenced without the
prior written approval of
the Kwa Dukuza Municipality, nor any
indication of any application currently lodged with this
Municipality. Accordingly, you are
hereby instructed in terms of
Section 4(4) read with Regulation A25 (6) and A25 (7) of the Act to
cease the erection of the building
work on your property WITH
IMMEDIATE EFFECT and you are requested to obtain the relevant
approvals from the aforementioned body
within a period of 14 calendar
days. ...”
[17] The respondents have contended
that in this notice, there is no detail of what “building work”
was being referred
to and what it was precisely that the second
respondent wished the first respondent to stop doing.
[18] There had been an inspection of
the site, prior to the issue of this notice to stop work.
[19] On 13 September 2012, the fourth
respondent had a site meeting with Mr Ngwane, a building inspector
representing the second
respondent. In this meeting, the fourth
respondent requested permission to complete certain works on site. Mr
Ngwane requested
him to submit his request in writing. This he duly
did on the same day. He never received a reply to this letter
notwithstanding
two reminders when no response was received from the
second respondent to his request, they did not proceed with any of
the work
for which early permission was sought.
[20] There was a further site meeting
at the request of Mr Nkwakhwa on 25 October 2012. On this day they
had a detailed inspection
of the site and he gave Mr Nkwakhwa a
detailed account of exactly what measures they were taking to shut
down the site. He told
Mr Nkwakhwa that the few workers on site were
there purely to tidy it up. Mr Nkwakhwa at no time suggested that the
first respondent
had in anyway breached the court order. The second
respondent’s official has, however, alleged in the affidavit
that he told
the fourth respondent at the site inspection that he was
in breach of the court order.
[21] I have already referred to
annexure “N1” to the applicant’s founding affidavit
which is a letter from dated
26 October 2012 dealing with the site
meeting of 25 October 2012, the notice to stop work dated 25 October
2012. In this letter,
a detailed list of the activities being
conducted on site is recorded. These have been referred to earlier on
in this judgment.
The said email was dispatched directly to Mr
Nkwakhwa, with a copy to Mr Ngwane, the second respondent’s
building control
officers. The third last paragraph of the said
letter reads thus:
“
Should I be
required to cease any of the listed activities, I ask that I be
advised accordingly”.
[22] Neither a formal acknowledgment
nor a substantive response was received to this letter. As indicated
above, a second notice
to stop building work was delivered on 9
November 2012. Again, the notice was a standard document that had no
detail of any wrong
that the first respondent was allegedly
committing in the building site. This notice was received by email
and responded to by
email on the same date to Mr Nkwakhwa and copied
to his colleague Mr Ngwane.
The Law on Civil Contempt
[23] The leading
case on the principles of civil contempt of court is
Fakie
NO v CCII Systems (Pty) Ltd
1
to
which both parties have referred to. This case has been cited with
approval in a number of other cases that followed.
[24] In
Graham
v Park Mews Body Corporate and Another
2
,
civil contempt of court has been described as follows:
“
The
definition of civil contempt of court proceedings is the deliberate
and intentional disobedience of an order granted by a court
of
competent jurisdiction. There has to be the element of
non-compliance. This needs to be proven by the applicant beyond
reasonable
doubt.
3
”
[25] The other case
also referred to by Counsel for the respondents, which also refers to
Fakie
case,
is
Els
v Weideman
4
.
Heher JA States at 138 (D):
“
This
obedience of a court order will constitute contempt when the breach
is committed deliberately and in bad faith;
Fakie
para 9
:
“
A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled to
act
in the way claimed to constitute contempt. In such a case, good faith
avoids infraction. Even a refusal to comply that is objectively
unreasonable may be bona fide (though unreasonableness could evidence
lack of good faith).”
(53) Thus, “the
offence is committed not by mere disregard of a court order, but by
the deliberate and intentional violation
of the court’s
dignity, repute or authority that evinces
5
.
Where there is an honest belief that non-compliance is justified or
proper, that is incompatible with the required state of mind
(ibid)”.
[26] The other case
is
Lan
v OR Tambo International Airport Department of Affairs Immigration
Admissions and another
6
where in
Fakie’s
case was cited with
approval, the Court in dealing with the civil contempt of Court
stated the following:
“
(60) I have
also considered the decision in
Fakie
NO v CCII (Pty) Ltd
,
where contempt of court in civil proceedings was considered by the
Supreme Court of Appeal.
(61) I have taken into account that
the standard of proof is ‘beyond reasonable doubt’ and
not a ‘preponderance
of probabilities’ such as in the
normal civil proceedings.”
[27] The following principles where
enunciated from the
Fakie
decision, supra, dealing with civil
contempt of court:
“
At para [63]
he quotes Cameron JA in paras 6-10 of his judgment:
[6] It is a crime unlawfully and
intentionally to disobey a court order. This type of contempt of
court is part of a broader offence,
which can take many forms, but
the essence of which lies in violating the dignity, repute or
authority of the court. The offence
has, in general terms, received a
constitutional stamp of approval, since the rule of law – a
founding value of the Constitution
– “requires that the
dignity and authority of the courts, as well as their capacity to
carry out their functions, should
always be maintained”.
[7] The form of proceeding CCII
invoked appears to have been received into South African law from
English law and is a most valuable
mechanism. It permits a private
litigant who has obtained a court order requiring an opponent to do
or not to do something (
ad factuam praestandum
), to approach
the court again, in the event of non-compliance, for a further order
declaring the non-compliant party in contempt
of court, and imposing
a sanction. The sanction usually, though not invariably, has the
object of inducing the non-complier to
fulfil the terms of the
previous order.
[8] In the hands of a private party,
the application for committal for contempt is a peculiar amalgam, for
it is civil proceeding
that invokes a criminal sanction or its
threat. And while the litigant seeking enforcement has a manifest
private interest in securing
compliance, the court grants enforcement
also because of the broader public interest in obedience to its
orders, since disregard
sullies the authority of the courts and
detracts from the rule of law.
[9] The test for when disobedience of
a civil order constitutes contempt has come to be stated as whether
the breach was committed
deliberately and mala fide
. A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply
that is
objectively unreasonable may be bona fide (though unreasonableness
could evidence lack of good faith).
[10] These requirements – that
the refusal to obey should be both wilful and mala fide, and that
unreasonable non-compliance,
provided it is bona fide, does not
constitute contempt – accord with the broader definition of the
crime, of which non-compliance
with civil orders is a manifestation.
They show that the offence is committed not by mere disregard of a
court order, but by the
deliberate and intentional violation of the
court’s dignity, repute or authority that this evinces. Honest
belief that non-compliance
is justified or proper is incompatible
with that intent.”
[28] Furthermore, the principles of
civil contempt of court were summarised as follows in
Fakie’s
case, supra,
“
To sum up:
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.
The respondent in such proceedings is
not an ‘accused person’, but is entitled to analogous
protections as are appropriate
to motion proceedings.
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.
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.
A
declaratory
and other
appropriate remedies remain available to a civil applicant on proof
on a balance of probabilities.
[29] It is clear from the case law
referred to above that the requirements for the civil contempt of
court are:
(1) The grant of an order;
(2) Service or notice of the orders;
(3) Non-compliance;
(4) Wilfulness and
mala fides
.
[30] In the applicant’s heads of
argument, it is submitted that in a contempt application, once the
applicant has proved the
requisites of contempt, the respondents bear
the evidentiary burden to establish beyond reasonable doubt that
their conduct was
not wilful,
mala fide
, in the absence of
which contempt would be established. Clearly this submission cannot
be correct in the light of the principles
enunciated from the above
cases including the leading case of
Fakie NO supra.
[31] It is clear from the above that
once the applicant proves the existence of the court order, the
service of an order, and non-compliance,
the respondent bear the
evidentiary burden to show reasonable possibility that non-compliance
was not wilful or
mala fide
. The applicant is required to
prove the elements of contempt beyond reasonable doubt.
[32] In the present matter, it is not
in dispute that, an order of court was granted on 21 August 2012 by
the Durban High Court,
directing the first, third and fourth
respondents to desist from continuing with their building operations
until such time that
their building plans had been approved by the
second respondent, Municipality. It is also not in dispute that the
respondents have
been served or notified of the court order.
[33] The issues for determination by
this court are:
Whether it has been proved beyond
reasonable doubt that the said respondents have in fact breached the
court order dated 21 August
2012, and
Whether, if any such breach is proven
to have occurred, such breach has been proved beyond the reasonable
doubt to have been committed
deliberately and mala fide by the one,
the other or all of the aforesaid respondents.
[34] The respondents argued that the
activities carried out by the first respondent on the building site
at the centre did not constitute
building work as contemplated in the
court order and the act. The applicants misconstrue certain
activities as constituting building
work. There is no doubt that, the
mere presence of workers, the delivery of storage materials and the
placement of refrigeration
containers cannot objectively constitute
building work, in terms of the order or under the Act.
[35] Counsel for the applicants
submitted that the nature of the order is one of interdictory relief
which entails that the respondents
were required by this court to
desist from certain conduct. Reasonably construed, the first
paragraph of the order contains the
prohibition operable upon
respondents. The second paragraph of the order specifies the time
during which the prohibition would
operate against the respondents,
i.e. for so long as the first respondent does not have approved
building plans or early permission
in terms of section 7(6) of the
Act.
[36] Counsel for the applicants
submitted further that what the respondents were ordered by this
Court not to do, constitute the
following:
(a) They were ordered to stop any
further building;
They were restrained from executing
any further building work; and
(c) With immediate effect.
[37] Counsel for the applicants
submitted further that the phraseology of the order of this Court is
wider in meaning and import
than that occurring in section 4 of the
Act. The word “any” is meant to be all embraising. The
prohibition of the Court
is not limited in its reach over certain
categories or types of building work or building that the respondents
were ordered to
stop. It does not exclude building work or building
for which no plans were required in terms of section 4 of the Act.
The word
“any” bears a wide meaning and covers all work
and building whether plans were required not. It contemplated a
stoppage
of all building work with immediate cessation.
[38] Counsel for the respondents
submitted that the ordinary meaning of “building” is to
construct the structure by
putting parts of material together. It is
apparent that none of the first and third respondents’
activities fall on this
definition as no structure was built at the
site after 12 July 2012. He goes on to submit that the interdict does
not permit “building
work” until it is approved by the
second respondent, Municipality in accordance with the submitted
plans. Conversely, it
certainly follows as a matter of logic that any
building work which does not require approval in terms of the act,
would not be
unlawful and could not be curtailed by a court order in
the ordinary courts. The meaning of “building word” must
therefore
be informed by the Act.
[39] Counsel for the respondent
submitted further that section 4 of the Act prevents the “erection”
of a “building”
in respect of which plans and
specifications are to be drawn and submitted in terms of the Act,
without prior approval of the local
authority. From an analysis of
section 1 of the Act, which defines the words “erection”
and “building”
it is readily apparent on an ordinary
interpretation of these provisions that none of the activities
performed by the first and
third respondents breach the act:
The activities are not of a nature
that requires plans and specifications to be drawn and submitted;
The activities do not involve an act
of erecting a building.
[40] The fourth respondent has
admitted that after the grant of a court order, three additional
items of work were undertaken, namely;
(1) Coating the exposed reinforcing
rods (rebar’s) with anti-corrosive material to preserve their
structural integrity. Such
treatment was only required because of the
site shutdown;
(2) Filling the dangerous cavities
being the open trenches, foundations and column bases with G5
crusher. This was also for safety
and health purposes;
Applying pre-mix to the G5 crusher
which was introduced to the open trenches, foundations and column
bases. This was for site
safety, security, health, drainage and
tenant operations.
[41] According the respondents, not
only was all this work reasonably required but also essential to the
exercise of shutting down
the site indefinitely in terms of the
decision taken at the meeting of the professional team on 16 October
2012.
[42] I have looked at the photographs
submitted on behalf of both parties depicting the site at various
angles but, these are not
of any assistance in determining the issues
before Court.
[43] It was submitted on behalf of the
respondents that the Court should appreciate it that when the work
was halted in July 2012,
no roof was in place over the partially
completed structure and a large catchment area was created for storm
water accumulation
that required urgent diverting to avoid flooding
to tenants’ premises. The temporary drain facilities to assist
in storm
water control were installed. Eventually drains and the
premix strips leading to it will be removed and a new 300 millimetre
thick
floor slab cast over it, in accordance with the plans awaiting
approval.
[44] The wording of the court order is
clear, it prohibits the performance of any further building any
further building work on
the property described as Lot 3671 Ballito
with immediate effect.
[45] According to applicants
reasonably construed the first paragraph of the court order contains
the prohibition operable upon
the respondent. The second paragraph of
the order specifies the time during which the prohibition would
operate against the respondents,
i.e. for so long as the first
respondent does not have approved building plans or early permission
in terms of the Act.
[46] Counsel for the applicant
submitted, correctly in my view that the phraseology of the order of
this court is wider in meaning
and import than that occurring in
section 4 of the Act, and that the word “any” in the
court order is meant to be all
embracing. The prohibition of the
court is not limited in its reach over certain categories or types of
building work or building
that the respondents were ordered to stop.
It does not exclude building work or building for which no plans were
required in terms
of section 4 of the Act. The word “any”
bears a wide meaning and covers all work and building where the plans
were
required or not. It contemplated the stoppage of all building
work with immediate effect.
[47] In my view, counsel for the
respondents’ interpretation of the court order, namely, that
“any” building work
which does not require approval in
terms of the Act would not be unlawful and could not be curtailed by
a court in my view is erroneous.
[48] The respondents have admitted
that they have performed building work on site which included the
items referred to earlier on
in this judgment. According to the
respondent, this work was done allegedly for the purpose of
implementing the decision taken
of 16 October 2012 to close down the
site.
[49] Mr Rowan’s argument
regarding the interpretation of the first part of the court order
concentrates only on the word “building”
as defined in
the Act. He submitted that the ordinary meaning of “building”
is to construct a structure by putting
parts or material together. In
my view, his argument loses sight of the fact that two phrases have
been used in the first part
of the order, namely, performing “any”
further “building”, any further building work on the
property. Mr
Rowan has not said anything in his argument about the
phrase “building work”. All he says about the phrase
“building
work” is that the interdict does not permit
building work until it is approved by the second respondent,
Municipality.
[50] In the circumstances, I am
satisfied that the applicant has proved the order, service or notice
and non-compliance beyond reasonable
doubt.
[51] It is trite
that once the applicant has proved the order, service notice and
non-compliance, the respondents bear an evidential
burden in relation
to wilfulness and mala fides. Should the respondents fail to advance
evidence that establishes reasonable doubt,
as to whether
non-compliance was wilful or mala fide, contempt will have
established beyond reasonable doubt
7
.
[52] The issue
therefore at this stage is whether the respondents have advanced
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful or
mala
fide
.
[53] In
Fakie
case, supra
,
the Court stated:
“
... however
robust a court may be inclined to be, a respondent’s version
can be rejected in motion proceedings only if it
is (ficticious) or
so far-fetched and clearly untenable that it can confidently be said,
on the papers alone, that it is demonstrably
and clearly unworthy of
credence
8
.
This passage was cited with approval in
Else
v Weideman
9
(per Heher
JA).
[54] It is clear that a lot of
correspondence has been exchanged between the second respondent and
the first and forth respondents
after the issue of the court order.
[55] It was submitted on behalf of the
respondents that whereas the applicants make no substantive
allegation that the respondents
breached the court order deliberately
and in bad faith. The respondents allege that any non-compliance with
the court order was
unintentional and in good faith. The fourth
respondent took legal advice from his attorneys before the activities
shutting the
site were performed.
[56] It is also clear that the
respondents were at all material times of the mind-set that what was
done at the site after 12 July
2012 was lawful and incompliance with
the Court order. Further it is also clear that before the respondent
communicated with the
municipality, at all material times to explain
that it was merely adapting measures to close down the building site.
The municipality
at no stage responded to the fourth respondent’s
communications in this regard and failed to specifically explain in
what
respect the shutting down activities were in breach of the Court
order and the Act.
[57] I will refer to one such
correspondence, reflecting the words used by the fourth respondent in
a letter to the second respondent
on 26 October 2012 reflecting the
intention of the fourth respondent:
“
I assure you
that no building works in terms of progressing a building towards
completion in terms of the plans submitted for approval
is taking
place on site, none of the activities constitute building works and
none are of a permanent nature but are necessary
for, safety,
security and operational perspective.
To support the fact that no building
work is or has taken place since the first order, I have photographs
taken on or about 15 July
2012 which are available for your scrutiny
to compare to the current status.
Furthermore, to your notice to stop
building work dated 25 October 2013, should you require that I cease
all of the above activities
until you have heard an opportunity to
consider and grant approval, please advise me accordingly and I will
instruct the constructor.
Should you require that I cease any of
the above activities, please advise me urgently when we could
schedule a meeting to discuss.
I further wish to re-affirm that I
will not do anything to compromise either my position or the position
of the Kwa-Dukuza Municipality.
Should you have any queries or
concerns please advise me accordingly”.
This is but one example of the many
letters exchanged between the parties but were not responded to by
the second respondent.
[58] Counsel for the respondents
submitted, correctly in my view, that the words used in the letter
are not the words of one who
is either deliberately setting about
breaching a court order, and more certainly do not reflect the
wilfulness and mala fides.
As indicated above, there were also site
meetings between the first and the fourth respondent and the
officials of the second respondent
on the other hand.
[59] Furthermore, as indicated above,
on 13 September 2012 an email was sent from the fourth respondent to
the second respondent
following a site meeting with Mr Njabulo Ngwane
the building control officer of the second respondent, and titled,
request for
permission. This letter contained request to do certain
work from site. They requested the permission to proceed with
building
works as per the plans submitted under submission
No.12/08/523. According to the fourth respondent, it failed to elicit
a response
from the second respondent, let alone its acknowledgment.
There are further similar letters which were in the applicant’s
application papers.
[60] It is also clear from the papers
that the respondents have been labouring under the impression that
the interdict does not
permit building work until it is approved by
second respondent in accordance with the submitted plans. The
respondents erroneously
concluded that it certainly follows as a
matter of logic that any building work which does not require
approval in terms of the
Act would not be unlawful and could not be
curtailed by the court order in the ordinary cause. I have already
made a pronouncement
in this regard.
[61] In
Victoria Park Ratepayers v
Grayvenouw CC
(2004) 3 All SA 623
(SE),
Plaskett J stated in
paragraph [5]:
“
It is clear
that contempt of court is not merely a mechanism for the enforcement
of court orders. The jurisdiction of the Superior
Courts to commit
recalcitrant litigants for contempt of court when they fail or refuse
to obey court orders has its heart the very
effectiveness and
legitimacy of the judicial system. … That, in turn, means that
the Court called upon to commit such a
litigant for his or her
contempt is not only dealing with the individual interest of the
frustrated successful litigant but also,
as importantly, acting as
guardian of the public interest”.
[62] Counsel for the respondents
submitted correctly in my view that civil contempt of court
proceedings cannot be used as an instrument
by a vindictive and
selfish motivated civil litigant wage personal war against an
opponent and or attempt to bring him into disrepute
which is
submitted:
All or an analysis of evidence the
utterances and the swearing and the spitting and the publications by
the second applicant concerning
the first and fourth respondents
which have not been denied, and
The explanation by the fourth
respondent well supported by correspondence and documentary evidence
is indeed, what the applicants
are seeking to do.
[63] One cannot lose sight of the
background set out in the founding affidavit relating to the
applicants and the respondents, namely
that they have competing
interest, the second applicant being the owner of a shopping mall not
far away from the respondent’s
shopping mall.
[64] In
Fakie’s case, supra
,
the court stated:
“
The
acceptable approach requires that, subject to the robust elimination
of denials and fictitious disputes, the court must decide
the matter
of the facts stated by the respondent, together with those of the
applicant, to those the applicant averred and the
respondent does not
deny”.
[65] Applying this approach, since the
first and fourth respondents’ version cannot legitimately be
robusted away, their factual
assertions, including those regarding
their state of mind must be accepted as established. In this matter
the proven facts establishes
more than a reasonable doubt but a
factual picture that entails acceptance of the respondent’s
version.
[66] Applying the accepted test, it is
impossible to reject the respondents’ version as fictitious or
as clearly not credit
worthy.
[67] In my judgment, the respondents
have advanced sufficient evidence that establishes a reasonable doubt
as to whether non-compliance
was wilful and mala fide. Contempt has
therefore not been established beyond reasonable doubt.
[68] In my view, the application
should be dismissed.
[69] On the issue of costs, counsel
for the applicants argued that should the application succeeds, the
respondent should be ordered
to pay the costs. Counsel for the
respondents on the other hand, submitted that the application should
be dismissed with costs
and, that such costs should be on the
punitive scale.
[70] In my view, there is no reason
why the costs should not follow the result. This matter does not
warrant that the costs be awarded
on a punitive scale.
[71] In the result, I make the
following order:
The application is dismissed with
costs.
______________
SISHI J
APPEARANCES
Date of hearing : 14 May 2013
Date of judgment : 30 July 2013
Counsel for the Applicants : RBG
Choudree SC
Applicants’ Attorneys : KRISH
NAIDOO GOVENDER & CO.
C/O ANAND NEPAUL ATTORNEYS
9
TH
FLOOR, ROYAL TOWERS
30 DOROTHY NYEMBER STREET
DURBAN
Ref: R Govender/SB/1226
Counsel for the Respondents : PAC
Rowan SC
Respondents’ Attorneys : MOONEY
FORD ATTORNEYS
7
TH
FLOOR, PERMANENT BUILDING
343 SMITH STREET
DURBAN
Ref: BWG/GSE/L2401/008
1
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)
2
2012(1)
SA 365 (WCC), para 36
3
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
4
2011(2)
SA 126 (SCA)
5
Fakie
para 10
6
2011
(3) 641 (GNP)
7
See
Fakie case, supra, para 42.
8
Para
56
9
2011(2)
SA 126 (SCA) at 139