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[2013] ZAKZDHC 66
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Diversified Power & Systems and Others v Molokoane (894/2011, 6432/2011) [2013] ZAKZDHC 66 (28 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NOs: 894/2011
And 6432/2011
In the matter between:
DIVERSIFIED POWER & SYSTEMS
First Applicant
INTERGRATION (PTY) LIMITED
SOMASUNDRAM GOVENDER
Second Applicant
HERMAN FRANS IRVING
Third Applicant
CRAIG JOHAN SMIT
Fourth Applicant
And
MOTHUSI PETER
MOLOKOANE Respondent
ORDER
1.
(a) The
applicants application brought under Case No.894/2011 is dismissed with
costs. Such costs to be determined on the
scale as between attorney and
client;
(b) The
application brought under Case No. 6432/2011 is dismissed with costs. Such
costs to be determined on the scale as
between attorney and client;
2. That
the order in terms of the respondents counter application be granted as
follows:-
2.1 It
is declared that the first to fourth applicants are in contempt of the court
order dated 27 August 2010;
3. The
first to fourth applicants are granted a further ten days from the date of this
judgment to purge the contempt set
out in paragraph 2.1 above, failing which
the respondent may set the matter down upon notice, with or without further
amplification
of the papers, calling upon the first to fourth applicants to
show cause why:-
(a)
A further order should not be issued
in terms of which the first to fourth applicants are prohibited from proceeding
with any other
litigation against the respondent until they have purged the
said contempt;
(b)
They should not pay the costs of any
further proceedings on an attorney and client scale;
(c)
Further sanctions to ensure purging of
the contempt should not be imposed against them.
4.
The first to fourth applicants are
ordered to pay the costs of the counter application on the scale as between
attorney and client.
JUDGMENT
SISHI J
Introduction
[1] The applicants seek an
order under Case No. 894/2011 in terms of its Notice of Motion, Inter alia, as
follows:
1.1 That
it be declared that the first to fourth applicants complied with the order of
his Lordship Mr Justice Kruger issued
on 27 August 2010;
1.2 Ordering
the respondent to accept the valuation of 26% of his shareholding in the first
applicant as at 28 February 2010
at R332 000,00, in terms of the valuation
by the first applicants auditors, in compliance with clauses 12.3.2.2
alternatively
15.1.4 of the shareholders agreement.
1.3 That
the respondent pays the costs of the application only in the event of
opposition.
[2] The respondent in turn
launched a counter application seeking an order,
inter alia
, declaring
the applicants in contempt of the order granted by this Honourable Court on 27
August 2010 and affording the applicants
an opportunity to purge its contempt.
[3] In addition the applicants
launched a further application out of this Honourable Court under Case No.
6432,
inter alia
, allegedly seeking the condonation of this Honourable
Court for the late filing of a replying affidavit.
[4] These applications are
opposed by the respective respondents.
Background
[5] The second, third and
fourth applicants and the respondent are shareholders of the first applicant.
[6] The respondent applied for
the winding up of the first applicant during the year 2009 on the grounds that
it is just
and equitable to do so due to the internal strife between the
respondent and his co-shareholders. For reasons not relevant to these
applications, that application was dismissed with costs.
[7] The respondent thereafter
requested to have sight of the first applicants books of account and records.
The respondent
did not receive a satisfactory response thereto. The respondent
thereafter brought an application under Case No. 7134/2010 for
an order that
the applicant and its then shareholders should make available to him for
inspection all books of account and records
of the first applicant. Such order
was granted on 27 August 2010 by Mr Justice Kruger in the following terms:
It is ordered:
[1] That
the first to fourth respondents be and is hereby ordered to make available to
the applicant for inspection, perusal
and including making copies of, all the
books of account and records of the first respondent.
[2] That
in the event that the first to fourth respondents fail to comply with this
order, then the sheriff of this Honourable
Court is directed and authorised to
do all things necessary to give effect thereto.
[3] That
the first and the fourth respondents be and is hereby directed to pay the costs
of this application.
[8] It is clear from the
correspondence exchanged between the parties legal representatives annexed to
the founding affidavit
that the parties held different views as to whether
there had been compliance with the Court order on a Case No.7134/2010 and they
therefore brought the current application in which they first of all seek an
order confirming that they complied with an order
granted under Case
No.7134/2010. The applicants also seek an order that the respondent accept the
valuation of 26% of his shareholding
in the first applicant as determined by
the first applicants Auditors as being R332 000,00.
[9] The respondent brought a
counter application for an order that the applicants are in contempt of court.
Applicants application for the condonation
of the late filing of the replying affidavit
[10] In terms of the Court order
made by this Court on 18 February 2011 under Case No.894/2011, the applicants
were directed
to deliver their replying affidavit if any, on or before 29 March
2011.
[11] The replying affidavit was
not filed timeously. It is clear from the correspondence exchanged between the
parties that
a request by the applicants attorneys to file their replying
affidavit not later by 15 April 2011 was not acceded to by the respondents
attorneys.
The applicants reason for the delay is that their Counsel was not available to
deal with the matter.
[12] Although it is not clear
from the papers when exactly was the replying affidavit filed, the affidavit in
question headed
answering affidavit was commissioned on 2 June 2011.
[13] To indicate that this affidavit
was intended to be a replying affidavit, paragraph 3 thereof, reads as follows:
I have read an
answering affidavit of the respondent and reply thereto as follows:
[14] The affidavit is deposed to
by the third applicant, Herman Frans Irving.
[15] A Notice of Motion dated 6
June 2011 which bears the Registrars stamp date of 9 June 2011 was filed and
the notice of
motion reads as follows:
Kindly take notice
that application will be made to this Honourable Court on the 5
th
day of July 2011 at 9h30 or soon thereafter as the matter may be heard for an
order in the following terms:-
1.
That condonation be granted for the
late filing of the applicants replying affidavit;
2.
That the applicants pay the costs of
this application unless opposed;
3.
Further and alternative relief.
Kindly take further
notice that the affidavit of Herman Frans Irving together with the annexures
will be used in support thereof.
Kindly place the matter
on the roll for hearing accordingly.
Dated at Durban this, 6
day of June 2011.
The notice of motion is signed
by Applicants Attorneys
[16] This application is brought
under Case No.6432/2011. There are two Registrars stamps on the face of this
Notice of Motion.
The first is dated 9 June 2011 and the second is dated 8
June 2011. On the face of the document, the Notice of Motion appears to
have
been received by the respondents attorneys Motala & Associates on the 8
th
day of June 2011.
[17] The affidavit deposed to by Hermen
Frans Irving which is headed Answering Affidavit which purports to support
this application
for condonation does not deal at all with the prayers sought
in the Notice of Motion.
[18] The Notice of Motion is on
pages 374 to 375 of the indexed papers and the affidavit in question begins
from pages 376
and the following pages of the indexed papers.
[19] Furthermore, no case number
has been inserted on the first page of this affidavit nor does it make mention
or indicate
in which matter condonation to file a relying affidavit is sought.
As indicated above the application for condonation of the late
filing of the
replying affidavit is brought under a separate case number, Case No.6432/2011.
[20] It has been submitted,
correctly in my view, on behalf of the respondent that an applicant seeking
condonation is seeking
an indulgence from the court, accordingly it must set
out the basis upon which it requires that this Court is called upon to grant
such indulgence. Furthermore, in application proceedings, the affidavits take
the place not only of the pleadings in an action,
but also of the essential
evidence which would be led at a trial.
See:
MEC for Health, Gauteng v 3P Consulting Pty Ltd
[1]
.
[21] The applicants filed a
further affidavit deposed to on 22 February 2013 by the applicants attorney of
record, Mr Martinis
Laas. This affidavit is filed under Case No.6432/2011. In
this affidavit the deponent states that the purpose of this affidavit
is to
depose to an affidavit in support of the applicants application for
condonation for the late filing of their replying affidavit.
[22] In this affidavit, the
deponent also deals with the correspondence I have already referred to wherein
the applicants requested
an extension of time which was refused by the
respondents attorneys.
[23] The deponent further says
that the replying affidavit as well as a confirmatory affidavit by himself as
well as a substantive
application for condonation was then drafted, these were
supposed to be dispatched to the correspondent attorneys in Durban to arrange
for signature and filing. It was also arranged with the deponent to attend to
the commissioning of the affidavit.
[24] He further says that on 19
May 2011, the application for condonation as well as the replying affidavit was
supposed to
have been sent by his offices to the correspondent attorneys. He
states that some confusion also crept in regarding the replying
affidavit as it
is erroneously captured Answering Affidavit. He says that on 27 May 2011, a
letter was telefaxed to the respondents
Attorneys confirming that the
documents which he thought had been dispatched on 19 May 2011 were in fact
received by them, that
they were collected for commissioning and will be served
shortly. Unbeknown to him only the Notice of Motion wherein condonation
is
sought was dispatched to the correspondent attorneys together with the replying
affidavit.
[25] When he briefed Counsel, he
required the correspondent attorneys to provide him with an index as well as
the issued commissioned
condonation application. He was informed by the correspondent
attorneys that they do not have a founding affidavit in support of
the
condonation application which he found it strange as an affidavit in its
unsigned form was still saved on his computer.
[26] Their correspondent attorneys
informed them that they are not in possession of an affidavit, in support of the
condonation
application and made mention of the fact that they have previously
indicated that they were sent an answering affidavit (which is
obviously the
replying affidavit) together with the Notice of Motion seeking condonation. He
then once again perused his office
file and came across a letter written by the
respondents attorneys as long ago as May 2011 wherein they indeed informed his
offices
that the founding affidavit that was supposed to support the
application for condonation was not served on them. He then realised
that his
office forwarded only the Notice of Motion together with the replying affidavit
and did not send the founding affidavit
for signature to Durban. He says that he
can offer no explanation why he or his office did not respond to that letter. In
my view,
this is negligence of a worse kind by a firm of attorneys.
[27] The deponent further alleges
in the affidavit that in the meantime the third applicant resigned as director
of the first
applicant and also sold his shares and therefore has no authority
to further act on behalf of the first applicant. He then refers
the Court to a
confirmatory affidavit by the second applicant, S. Govender, wherein he states
that he has read the affidavit of
the third applicant in support of the
condonation application and confirms the contents thereof as correct and that the
first applicant
indeed seeks condonation for late filing of the reply. But I
have already indicated that, the affidavit by the third applicant
in support of
the condonation application was never ever signed by the third applicant.
Instead of preparing a knew affidavit
in support of that application, the
second applicant, S Govender, at his own peril confirms the contents of an
unsigned affidavit.
[28] It has been submitted
correctly, in my view, on behalf of the respondent that all the necessary
allegation upon which
the applicants rely must appear in his or her founding
affidavit as he or she will not generally be allowed to supplement the
affidavit
by adducing supporting facts in a replying affidavit.
See:
National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2]
.
[29] It is trite that in any
application for the condonation of the late filling of the court documents, the
applicant must
show good cause in order to be successful.
[30] In order to show cause, the
applicant must deal with the following issues:
[30.1] The nature and the extent of
the delay;
[30.2] The reasons therefor;
[30.3] The prospects of success; and
[30.4] The interest of the parties in
the matter.
[31] These issues have not been
dealt with in any of the affidavits referred to earlier on in this judgment. I
have already
indicated that the affidavit of the Hermen Frans Irving referred
to in the Notice of Motion does not deal at all with the condonation
of the
late delivery of the replying affidavit. The same applies to the affidavit deposed
to by the applicants attorney of record
Mr Laas., on 22 February 2013. So
does the confirmatory affidavit of the second applicant, S. Govender.
[32] In paragraph 10 of the
affidavit, deposed to by Mr Laas on 22 February 2013, the applicants attorney
of record states
the following:
I deem it necessary
to annex a copy of the unsigned affidavit hereto as annexure MJL5 to show the
Honourable Court that it
was indeed prepared as long ago as May 2011
[33] Surprisingly, annexure MJL5
(pages 744-746 Indexed papers) is a Notice of Motion which is unsigned prepared
by Attorneys
for the applicant wherein they seek the orders set out in
paragraph one of this judgment.
[34] This notice of motion is
supported by an affidavit deposed to by Herman Frans Irving which is also
unsigned.
[35] This affidavit does not deal
with the allegations in support of the condonation application as suggested by
the applicants
attorney of record in his affidavit deposed on 22 February
2013. Instead, the affidavit only deals with the issues in support of
the
prayers sought in the Notice of Motion to which the affidavit is annexed.
[36] This, in my view, again demonstrates
gross negligence on the part of the applicants attorneys in this matter.
[37] It was submitted correctly,
in my view, on behalf of the respondent that the affidavit deposed on 22
February 2013 by
the applicants attorney of record does not assist the
applicants in that it lacks any averments to disclose a cause of action for
the
relief sought. Accordingly, the applicant did not disclose the cause of action
in respect of the relief sought in paragraph
1 of the Notice of Motion. There
is in fact no founding affidavit in support of an application for the
condonation of the late
filing of the relying affidavit. In my judgment, the
absence of a proper affidavit in support of the condonation application is
fatal to the applicants case. The application for the condonation of the late
filing of the replying affidavit should, in my
view, be dismissed with costs.
Application under Case No.894/2011
[38] The respondent has raised
three points
in limine
in respect of this application.
1
st
point
in limine
locustandi
of the applicant
[39] In support of this point
in
limine
, the respondent has made the following submissions:
[39.1] It is trite law that
appropriate allegations to establish the
locus standi
of an applicant
should be made in its founding papers.
See:
Scott v Hanekom
[3]
[39.2] The applicants annex marked
DPS1 to the founding affidavit a resolution which they contend, evidences
that the deponent
Herman Frans Irving is duly authorized to depose to the said
affidavit and the resolution reads as follows:
RESOLVED
That the company apply to the
KwaZulu Natal High Court, Durban for an order amending the order given
under Case Number
7134/2010 in the mentioned court and compelling the
shareholder MP Molokoane in terms of the application to adhere to the
conditions set out in the shareholders agreement;
That HERMAN FRANS IRVING be and
is hereby authorised to bring the application on behalf of the company and
to sign all
such documents and to do all such things as may be necessary
to give effect to the a aforegoing.
[39.3] It is apparent
ex facie
the Notice of Motion that the applicants seek, inter alia, the following
relief:-
1.
That it be declared that the first to fourth applicants complied with
the order of his lordship Mr Justice Kruger on
27
th
August 2010.
2. Ordering
the Respondent to accept the valuation of 26% of his shareholding in the first
respondent as at 28
th
February 2010 at R332,000, in terms of the
valuation by the first respondents auditors, in compliance with clauses with
12.3.2.2,
alternatively 15.1.4 of the shareholders agreement.
[39.4] It is furthermore apparent
from the Resolution itself relied upon by the applicants that it does not
authorise the applicants
to institute this application for the relief they seek.
The resolution authorises the applicants to apply for an order amending
the
order compelling the respondent to adhere to the conditions set out in the
shareholders agreement. Mr Irving, in terms of
paragraph 2 of the resolution
is the person authorised to bring that particular application referred to in
paragraph 1 of the resolution.
[39.5] In a case where the deponent
acting on behalf of an applicant company lacks the capacity to launch application
proceedings
on behalf of the company, and the respondent objects thereto, want
of capacity cannot later be remedied by a decision of the directors
of the
company which did not exist at the stage when the application was launched.
See: M
& V Tractor & Implement Agencies BK v Vennootskap D S U Cilliers &
Seuns; Hoogkwartier Landgoed (Edms) Bpk;
Olierivier Landgoed (Edms) Bpk
[4]
.
[39.6] Such later decision will also
not serve as a ratification of, and give retrospective effect to the capacity
to launch such
an application.
See:
M&V
Tractor & Implement Agancies BK v Vennootskap D S U Cilliers & Seuns;
Hoogkwartier Landgoed (Edms) Bpk; Olierivier
Landgoed (Edms) Bpk.
[5]
[39.7] Counsel for the respondent submitted
that the applicants have failed to establish
locus standi
in this
application.
[39.8] Counsel for the respondent
further submitted that the application be dismissed with costs, such costs to
be determined on
the scale as between attorney and client.
[40] The deponent to the replying
affidavit which is headed Answering Affidavit, Mr Herman Frans Irving, who
also deposed
to the founding affidavit, denies that the resolution does not
authorise him to depose to the affidavit on behalf of the first applicant.
He
states in paragraph 4 of the replying affidavit that prayer 2 is in essence the
same as compelling respondent to adhere to the
conditions set out in the
shareholders agreement. Although prayer 1 is not an order prayed for under
Case No. 7134/2010, the
relief deals with the same application.
[41] Mr Irving further makes the
following allegation in this replying affidavit:
I, however, annex
hereto as annexure RA1 a resolution adopted by the first applicant rectifying
the actions I have taken on behalf
of the first applicant and the relief which
is sought in the Notice of Motion.
[42] In any event, having
dismissed the applicants application for the condonation of the applicants
late filing of the replying
affidavit, the court cannot have recourse to the
same replying affidavit in considering the respondents point
in limine
.
That affidavit should in fact be regarded as
pro-non-scripto.
[43] If the initial resolution
passed by the company to authorise these proceedings were sufficient, it would
not have been
necessary for the company to issue another resolution rectifying
the actions already taken.
[44] Counsel for the respondent
correctly submitted, that it is apparent that the resolution relied upon by the
applicants
does not authorise the applicants to institute this particular application
for the relief they seek.
[45] Even if there was a properly
filed replying affidavit, a later decision or resolution will also not serve as
a rectification
of and give retrospective effect of the capacity to launch such
an application.
See:
M&V Tractor & Implement Agencies BK v Venonotskap D S U Cilliers &
Seuns; Hoogkwartier Landgoed (Edms) Bpk;
Olierivier Landgoed (Edms) Bpk
[6]
.
[46] Absence of
locus standi
is fatal to the applicants case. In the light of the above, I am satisfied
that the applicants have failed to establish
locus standi
in this
application. The application falls to be dismissed with costs.
[47] In the result, the
applications main application should accordingly be dismissed.
[48] There is no reason why the
costs should not follow the result.
[49] In the light of the finding
that the applicants lack of
locus standi
to bring the application under
case No. 894/2011, it is not necessary to deal with further points
in limine
raised by the respondent and the merits of the application.
Respondents counter application
[50] The respondent in the
counter application asked for an order that the applicants are in contempt of
court or in contempt
of the court order dated 27 August 2010. He further asked
that the applicants be granted a further 10 days from the date of judgment
to
purge the contempt.
[51] Paragraph 1 of the Court order
made by Mr Justice Kruger on 27 August 2010 reads as follows:
1. That
the first to fourth respondents be and is hereby ordered to make available to
the applicants for inspection, perusal
and including making copies of,
all
the books of account and records of the first respondent
[52] It was submitted on behalf
of the applicants that it became apparent from the applicants that the parties
have different
views as to whether there has been compliance with the Court
order under Case No.7134/2010 and they therefore brought the current
application seeking an order confirming that they complied with the order
granted under Case No. 7134/2010. In annexure DPS 11
the correspondent
exchanged between the respective parties attorneys, the respondent listed 48
documents or information he requires
which the applicants submit falls outside
the meaning and scope of accounts and records of the applicant.
[53] It was submitted further
that on the respondents own version, his attorney and auditors presented
themselves at the businesses
of the first applicant on 7 December 2010. The
respondent through his attorney and auditors was able to peruse all books and
records
of the first applicant. It was then submitted that enough information
was gained from these books and records so perused that the
auditors were able
to express an opinion on their findings. The applicants do not agree that the
opinion is correct.
[54] It was submitted on behalf
of the applicants that they still do not know why the respondent say that they
are in contempt
of the court order and they still have not been informed in
clear and simple terms what it is that the respondent requires from
them. The
term books of account and records is very wide. The applicants contend that
by allowing the respondents attorneys
and auditors access to the books and
records which were held at the offices where the audit was conducted, is
compliance with the
Court order.
[55] It was finally submitted on
behalf of the applicants that the respondent has failed to show that the
applicants are wilfully
in default of the Court order. The mere fact that they
brought this application shows that there is no wilfulness on their part.
The
counter application should be dismissed with costs.
[56] The respondent made the
following submissions in support of the counter application.
[57] The respondents counsel
submitted correctly, in my view that, it is apparent from the papers under Case
No.6432/2011
that the applicant commenced the application with an affidavit
headed Answering Affidavit, which appears to be a founding affidavit
in the
matter. It also appears to be a replying affidavit to the answering affidavit
of the respondent under Case
No.894/2011 but nowhere does the
applicants make any allegation or reference to Case No.894/2011.
[58] Despite the above, the
respondent delivered the answering affidavit, subsequently, the applicant
delivered an affidavit
deposed to by attorney, Mr Laas and it is apparent
therefrom that the applicant limits the reply only in respect of the reasons
why
it was late for delivering the affidavit in respect of the condonation
application and does not respondent to the allegations
in the respondents
answering affidavit.
[59] It was submitted, correctly
in my view, on behalf of the respondent that there being no counter allegations
of fact, the
entire answering affidavit of the respondent under Case No.
6432/11 is not in dispute, inter alia, the material allegations of the
respondent which are, inter alia as follows:
[59.1] That new evidence that had
come to light pursuant to respondent deposing to the affidavit under Case No.
894/11 that when
the applicants had launched the aforesaid application, they
were aware as a result of their wrongful and/or unlawful conduct that
the
respondent was not a shareholder in the first applicant and that his
shareholding appears to have been misappropriated and
sold to a third party as
a result of which respondent had to launch an application, inter alia, for the
return of his shareholding
under Case No. 11077/2011.
[59.2] That the matter under Case No.
11077/2011 displays the
mala fides
of the applicants in that the entire
application launched by the applicants under Case No. 894/2011 was brought with
the intention
to cloak and countenance the apparent fraudulent conduct of the
applicants perpetrated against respondent.
[59.3] That on 7 December 2010, the
proverbial cat was out of the bag, when the secretary of the first applicant, a
Mrs Marina
Roberts had informed the auditors and respondents attorney that
she
did not know why they were there on behalf of Mr Molokoane as his shares had
been sold.
[59.4] That none of the deponents to
applicants affidavit nor its attorneys were present at the premises on 7
December 2010 when
compliance with the order or this Honourable Court was
attempted accordingly the entire application launched by the applicants is
based on hearsay.
[59.5] That the applicants have not
complied with the order of this Honourable Court and remain patently in
contempt, particularly
where the applicants attorney Mr Laas does not indicate
in his confirmatory affidavit wherein he states
The respondent and his
party left the premises with the documents I thought they were entitled
when a Mrs Roberts, first applicants secretary, who was the only person
present for applicants on the day and who had subsequently
forwarded an email
to respondents auditors that additional documentation that was required was to
be forwarded once completed.
[60] I agree with the submission
by the respondent that the entire application is based on hearsay. Mr Laas,
the applicants
attorney of record indicated that he was not present at the
premises on 7 December 2010. Neither was the Third Respondent (Herman
Frans
Irving) present on the day in question. No affidavit or confirmatory affidavit
has been filed by Mrs Marina Roberts to confirm
the events of the day.
[61] The respondent alleges at
paragraph 15.12.10 of his answering affidavit as follows:
I was advised by my
attorney that when the Deputy Sheriff of this Honourable Court had attempted to
execute on the order on the
7
th
December 2010, a Mrs Marina Robert
of the first applicant had informed those present that the Managing Director Mr
Irving, the
deponent to the founding affidavit, had given her strict
instructions not to allow anyone to enter the premises and to make any
copies
of the first applicants books and records.
[62] In response to the
aforegoing, the applicants prefer not to place a version before this Honourable
Court. All the deponent
says is that this is not an application rescinding the
order granted and therefore he will not reply to these paragraphs.
[63] It was finally submitted on
behalf of the respondent that the applicants notwithstanding being aware of
this Honourable
Courts order, elected to deliberately and intentionally disobey
this Honourable Courts order at the very outset.
[64] The Crime of Contempt of
Court involves the unlawful and intentional violation of the authority of a
judicial officer
or judicial body acting in such capacity. In
Fakie NO v
CCII Systems (Pty) Ltd
[7]
,
the Court at paragraph [6] said:
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
had, 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.
[65] The terms of the Court Order
are not ambiguous. In the light of the above, I am satisfied that, the
applicants, notwithstanding
being aware of this Honourable Courts order,
elected to deliberately and intentionally disobey this order at the very
outset.
[66] In the result, I am satisfied
that a case has been made out for the orders sought in the counter application.
[67] The relief sought in the
Notice of Motion as set out by the applicants in the matter under Case
No.894/2011 as well as
under Case No.6432/2011 falls to be dismissed. Counsel
for the respondent has argued that the applicants be ordered to pay the costs
of the applications on attorney and client scale. Considering the manner in
which these cases have been handled on behalf of the
applicants, I am of the
view that punitive costs are warranted in the circumstances of these case.
[66] In the result, the following
order is made:
1.
(a) The
applicants application brought under Case No.894/2011 is dismissed with
costs. Such costs to be determined on the
scale as between attorney and
client;
(b) The
application brought under Case No. 6432/2011 is dismissed with costs. Such
costs to be determined on the scale as
between attorney and client;
2. That
the order in terms of the respondents counter application be granted as
follows:-
2.1 It
is declared that the first to fourth applicants are in contempt of the court
order dated 27 August 2010;
3. The
first to fourth applicants are granted a further ten days from the date of this
judgment to purge the contempt set
out in paragraph 2.1 above, failing which
the respondent may set the matter down upon notice, with or without further
amplification
of the papers, calling upon the first to fourth applicants to
show cause why:-
5.
A further order should not be issued
in terms of which the first to fourth applicants are prohibited from proceeding
with any other
litigation against the respondent until they have purged the
said contempt;
6.
They should not pay the costs of any
further proceedings on an attorney and client scale;
7.
Further sanctions to ensure purging of
the contempt should not be imposed against them.
4.
The first to fourth applicants are
ordered to pay the costs of the counter application on the scale as between
attorney and client.
SISHI
J
APPEARANCES
Date of judgment : 28
November 2013
Date
of hearing : 24 May 2013
Counsel
for the Applicants :
M.H. Van Twisk
Applicants
Attorneys :
BRUWER INC
Room
3 First Floor
Woodi
Glen Centre
74
Jerome Road
Lynwood
Glen
PRETORIA
(Ref:
M J Laas/LD0001)
C
Are
of:
LARSON
FALCONER INC.
3
rd
Floor Momentum House
Cnr
Florence Nzama Street &
Braam Fischer Road
DURBAN
(Ref: S CLARENCE/lm/17B369001)
Tel:
031 3671000
Counsel
for the Respondent :
M Motala
Respondents
Attorneys :
Motala & Associates
46 Mallinson Road
Sydenham
DURBAN
(Ref:
MPM/DPSI/MM/APPACC)
[1]
2012(2) SA 542 SCA at 550 G to 551 C.
[2]
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA) at 349A-B
[3]
1980
(3) SA 1182
(C) at 1188H
[4]
2000
(2) SA 571
(NC) at 579H-I.
[5]
Supra
at 580 D-E.
[6]
Supra
at 580D-E.
[7]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)