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[2012] ZAFSHC 176
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Drotske NO and Another v Coetzee (2767/2012) [2012] ZAFSHC 176 (20 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2767/2012
In the matter between:-
A.E. DROTSKé
N.O.
............................................................
1
st
Applicant
W.M. DROTSKé
N.O.
..........................................................
2
nd
Applicant
and
ETTIENE COETZEE
.............................................................
Respondent
_____________________________________________________
HEARD
ON:
13 SEPTEMBER 2012
_____________________________________________________
JUDGMENT
BY:
EBRAHIM, J
_____________________________________________________
DELIVERED
ON:
20 SEPTEMBER 2012
_____________________________________________________
[1] The applicants who
are brothers and trustees of a Trust, the Monte Bello Trust, apply
for an order for the committal of the
respondent for contempt on the
grounds of his alleged failure to comply with the terms of an order
of court granted on 27 June
2012. The Trust owns a guest house and
conference centre in an area called Vaalbank Suid just outside
Bloemfontein. It is called
the Monte Bello Estate and is really a
popular wedding venue. That is its main business although it does
also cater for the holding
of conferences. Initially the business was
wholly owned and run by the respondent. In April 2011 he sold 50% of
the business to
the applicants for R3,5 million. The business is
located on a small holding, described on a municipal map of the area
as portion
7 of erf 2876 Vaalbank Suid. The erf has been subdivided.
The respondent owns and lives on an adjourning property described as
portion 12 of the same erf. No doubt as a result of their proximity
to one another, the applicants and the respondent share a municipal
water supply pipeline, which runs across the respondent’s
property, so that the water supply connection to the Monte Bello
Estate is of necessity one and the same as that of the respondent’s,
their actual water connection pipe being opposite the
respondent’s
house.
[2] On commencing the
running of the business of the Monte Bello Estate the applicants were
initially “sleeping partners”,
being merely investors,
whilst the respondent as the other 50% member/partner actually ran
the venture. Problems then arose as
a result of which the applicants
bought out the respondent. Unfortunately this did not restore cordial
relations between them.
[3] On the 27
th
June 2012, the applicants obtained a spoliation order against the
respondent in this court in the following terms:
“
4. A
rule
nisi
is issued, returnable upon
26
July 2012
as
this Court deems meet, whereby the First and Second Respondents are
called upon to show cause, if any, why the following order
should not
be made final:
4.1 The First and/or Second
Respondents be ordered to immediately restore the flow of water to
the Applicants’ business premises,
situate at Erf No. 7/2876 of
the farm Tafelkop No. 2876, Vaalbank Zuid, district Bloemfontein,
better known Monte Bello Estate.
4.2 That the First Respondent be
ordered to pay the costs of the application, in the event of it being
found on the that he was
in fact responsible for the cessation or
disconnection of water supply to the Applicant, as well as the costs
occasioned by the
Second Respondent in opposing/supporting the relief
sought by the Applicant herein. In the event of it being shown that
the Second
Respondent is responsible for the cessation of water
supply to the Applicant, then in that case that the Second Respondent
be ordered
to pay the cost of the application, such costs to include
the costs incurred by the First Respondent in opposing/supporting the
relief sought by the Applicant herein.
5. This order is served personally
upon the First Respondent and Second Respondents in accordance with
Rule 4 of the Court Rules.
6. .....
7. The sheriff instructed and
authorised to serve this order personally upon the first respondent
and immediately after the granting
of this order and outside the time
limits set in the rules by means of telephone, telefax, e-mail or
other means of communications.”
The respondent was cited
as first respondent in the application, the municipality being the
second respondent. The order was obtained
ex parte
and on an
urgent basis. The Rule
nisi
was extended on 26 July 2012 to
the 23
rd
August 2012 and on that date further extended to
13 September 2012 when it was confirmed by agreement between the
parties. The
respondent was ordered to pay the costs of the
spoliation application.
In the intervening period
between the granting of the Rule
nisi
and its confirmation,
and more specifically on 3 July 2012, the applicants instituted civil
contempt proceedings against the respondent
for his alleged failure
to comply with the provisions of the order granted on 27 June 2012
and costs on the scale as between attorney
and client. The facts upon
which these proceedings are based, are briefly the following:
(i) On 27 June 2012 after
the Rule
nisi
was granted, the first applicant and his
attorney, being unable to raise the sheriff in order to effect
service of the order upon
the respondent, drove personally to his
home where the first applicant’s attorney handed to the
respondent a copy of the
court order relating to the spoliation
application.
(ii) The respondent, on
the applicants’ papers, is alleged to have indicated that he
would restore the applicant’s water
supply at 8h00 am on the
following morning, the 28
th
June 2012. This however did
not happen.
On the 28
th
June 2012, the applicants’ attorneys, in addition, forwarded a
copy of the spoliation order to the respondent’s attorney,
who
acknowledged receipt on even date.
Despite this the
respondent persisted in his failure, according to the applicants, to
turn on their water supply. In desperation
and on 28 June 2012, the
applicants sought the assistance of an employee of the municipality
who, after conducting an investigation,
was able to open up the main
municipal tap connection providing water to both the applicants, as
well as the respondent. Further
investigation of the submerged water
pipeline in an area approximately 200 metres from the respondent’s
property revealed
a blockage in the actual water pipe in the form of
a “stop” which had been inserted into the water pipe
restricting
the flow and supply of water to the applicants’
property.
The next day, 29 June
2012, it is alleged by the applicants that the respondent once again
acted in contravention of the spoliation
order by arriving on their
property in their absence and releasing all the water from the
reservoir tanks. He threatened one
of the applicants’
employees with physical violence should he close the reservoir taps.
The second applicant on receiving
this news immediately returned to
the applicants’ property and closed off the taps. As he was
driving away after having
done so, he saw the respondent sitting on
his porch. The respondent shouted out to him that he would continue
disrupting the
water supply to the applicants’ property
throughout the day. The next morning, 30 June 2012, the applicants
allege that
they were once again without water. Once again they
inspected the water pipe, this time in the company of a member of
the South
African Police Service and again found that in precisely
the same position on the pipeline, their water supply had been
blocked
by the insertion of a stop.
[5] The background which
I have set out in this judgment is common cause between the parties.
The respondent has seen fit not to
file opposing papers but to
confine himself to taking issue on a point of law with the applicants
on the basis of a notice delivered
in terms of Rule 6(5)(D)(iii) of
the Uniform Court Rules, which reads as follows:
“
3. Hierdie
Hof se bevel gedateer 27 Junie 2012 het geen tussentydse regswerking
gehad op 29 Junie 2012 of enige ander datum relevant
tot die aansoek
nie;
4. Die Respondent het onder die
omstandighede nie hierdie Agbare Hof se bevel gedateer 27 Junie 2012
geminag nie.”
[6] 6.1 Consequently the
only issue for adjudication before me is on a point of law
viz
whether the order dated 27 June 2012 had any interim effect between
27 June 2012 and
29 June 2012 and any
other date/dates on which it is alleged by the applicants that the
respondent acted in contempt of its provisions.
On behalf of the
respondent, Mr Reinders concentrated his submissions on two
aspects, the first being the lack of proper service
of the order by
the sheriff and the second, the omission from the order of a
provision that the Rule
nisi
was to operate as an interim
interdict with immediate effect. The effect of both these
challenges he contended, was that the
applicants had abrogated to
themselves the powers of the court issuing the order and, in doing
so, had reserved to themselves
the right to amend and vary the
order so as to enable them to execute it in a manner wholly
unauthorised by the learned Judge
who had made the order. Having
done so, he argued, it could not legitimately be expected of the
respondent that he abide by
and/or comply with an order which the
applicants had not seen fit to obey themselves.
[7] The applicants’
case, as Mr Grobbelaar put it, was that there was no need for service
by the sheriff to ensure respondent’s
compliance with the
order; all that was required is that he be notified of its terms by
some acceptable means as eg. by the applicants’
attorney
handing over to him a copy of the order so that he had knowledge of
the contents of the order. He also urged me to find
that the Rule
nisi
, given its proper, ordinary grammatical meaning,
especially if one had regard to the words “why the following
order should
not be made final” was a sure indication that the
order was an interim and provisional order operating with immediate
effect,
confirmation thereof to follow on the return date, should
respondent fail to appear to show cause or, in the event of
appearance,
fail to make out a case for the discharge of the interim
order.
[8]
8.1 The applicants are, off course, correct; whether the respondent
disobeyed the court order deliberately and wilfully, which
is the
test for the offence of civil contempt, depends ultimately on whether
he had
knowledge as a fact
of
the provisions of the order. (
FAKIE NO v CCII SYSTEMS
(PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) par [42].)
It was pointed out by
Innes CJ in
MEIKLE v SOUTH AFRICAN TRADE
PROTECTION SOCIETY
1904 TS 94
at 97
“
... when an
order of Court issues, operative as against the whole world, then any
person, however
bona
fide
,
intending to take action contrary to that order, who is warned of its
existence by some responsible person, like a solicitor or
officer of
the Court, goes on at his peril.”
That the enquiry into
the knowledge of the party alleged to be in contempt is a factual
one, was emphasised as a general Rule
by the same learned Judge in
BURGERS v FRASER
1907 TS 318
at 320:
“
I think that
where a man has information, which he has no reasonable grounds for
disbelieving, to the effect that an order of Court
has been granted
against him, he is bound to act as if that order has been duly
served. In every case it is a question of fact.
The point is whether
a man when he receives information, had any reasonable grounds for
disobeying it. It is not contended here
that the appellant did not
believe that the information supplied to him was correct. He stood
upon a technicality and demanded
that the order itself should be
produced to him. I do not think he was justified in taking up that
position. We must have regard
to the facts... He was not justified in
disregarding that information and acting in defiance of the order of
Court on the technical
ground that the written order had not been
produced.”
On the undisputed facts
of the applicants’ case, the respondent certainly had
knowledge of the contents of the order,
for a copy thereof was
actually given to him on the evening of 27 June 2012 by the
applicants’ attorney, Ms Sunel Pienaar,
who explained the
contents thereof to him. In doing so, however, it is the
respondent’s case that she incorrectly conveyed
to him
information which did not form part of the provisions of the order
granted by the learned Mocumie J.
[9] It is not the
respondent’s case that Ms Pienaar committed any fundamental
error in conveying the information contained
in the court order. It
is agreed that the order in the precise terms given by the learned
Mocumie J was explained to the respondent.
What is crucial to the
respondent’s case, is that the order did not prohibit the
respondent from interfering with applicants’
water supply
between 27 June 2012 and the original return date, 26 July 2012.
[10] I proceed now to
deal with this issue. Intrinsic to our system of constitutional
juris
prudence
is the
audi alteram partem
rule. A court will
normally not grant an order directly affecting the rights of a person
and which may involve far reaching consequences
to him/her without
giving that person an opportunity of being heard. This principle has
found expression in a rule of practice
that in
ex parte
applications brought without notice, the court will order a Rule
nisi
to issue where the rights of other persons may be affected by the
order sought. Herbstein and Van Winsen:
The Civil Practice of the
Superior Courts
, 5
th
Edition at 455 defines a Rule
nisi
thus:
“
an order
directed to a particular person or persons calling upon him or them
to appear in court on a certain date to show cause
why the Rule
should not be made absolute; or, in other words, why the court should
not grant a final order. In a proper case, for
example, an urgent
application for an interdict, the court may grant interim relief by
ordering that the Rule
nisi
will operate as a temporary interdict. This rule of practice should
be applied and followed unless sound reasons exist to depart
from
it.”
The Rule
nisi
is
therefore fundamental to both procedural and substantive fairness,
that is its main purpose, for it allows flexibility in
circumstances where a rigid application of the
audi alteram
partem
rule might have the effect of defeating the very rights
sought to be enforced or protected.
Where a temporary
interdict is necessary to prohibit a party from doing something
until cause is shown by him against it, the
court is asked to make
a specific order that the Rule
nisi
should act immediately
as a temporary interdict, pending the return day.
The
utility of the Rule
nisi
acting at the same time as an interim order has
been endorsed by the courts. (
SAFCOR FORWARDING
(JOHANNESBURG) (PTY) LTD v NATIONAL TRANSPORT COMMISSION
1982
(3) SA 654
(A) at 674 H – 675 A)
Consequently I do not
agree with Mr Grobbelaar’s interpretation that the Rule
nisi
is but one of two options which an
ex parte
applicant for
interim relief has on approaching the courts, i.e. either to ask
for it indirectly through and by virtue of a
Rule
nisi
or
directly by spelling it out coupled to a Rule
nisi
(“the
rule
nisi
is to operate as a temporary interdict with
immediate effect pending the return date”).
On
his interpretation, the omission of the interim order in Mocumie
J’s ruling of 27 June 2012, is not fatal to the applicants’
case because the Rule
nisi
is
an interim
order. But he is not supported by authority for as was made clear
by Corbett CJ in
SHOBA v OFFICER COMMANDING, TEMPORARY
POLICE CAMP, WAGENDRIFT DAM, AND ANOTHER;
MAPHANGA v OFFICER
COMMANDING, SOUTH AFRICAN POLICE MURDER AND ROBBERY UNIT,
PIETERMARITZBURG,
AND OTHERS
1995 (4) SA 1
(A) at 19 D – H where the
learned Judge discussed the distinction between a Rule
nisi
and an Anton Piller order:
“
A rule
nisi
...,
contemplates that the relief sought will only be granted at some
future date after the respondent has had time to show cause
that it
should not be granted... the interim interdict attached to a rule
nisi
usually seeks to maintain the
status
quo ante
whereas an Anton Piller order gives instant relief subject to the
possibility of a later variation or discharge of the order.”
Shoba makes it clear
that the Rule
nisi
is not another name for an interim
order/interdict. The two are not interchangeable. That is the law
and the applicants must
show that the respondent has acted wilfully
and deliberately in contravention of the court order of 27 June
2012 to succeed
with their contempt application. They have not done
so. Whilst I find that knowledge of the court order of 27 June 2012
on
the part of respondent has been proved by the applicants, that
in itself is of no moment in light of the failure of the order
to
inform the respondent that the Rule
nisi
was to operate as
an interim interdict with immediate effect pending the return day.
Had the order been correctly formulated
in this way, the respondent
would then have been prohibited from interfering in any way
whatsoever with the applicants’
water supply as from the
moment the copy of the court order was handed to him. This flaw and
omission in the court order of
27 June 2012 left it open for the
respondent to continue with his unlawful conduct of closing off the
applicants’ water
supply with impunity, had he so wished,
until the return day when the Rule was confirmed.
[11] The application for
the committal of the respondent for civil contempt is accordingly
dismissed with costs. Mr Reinders has
asked me to make a punitive
costs order against the applicants. I do not consider such an order
warranted in the circumstances
of this case. The respondent has
suffered no prejudice at all and it was his conduct, in the first
place, which warranted the spoliation
order. This much he
acknowledged by agreeing to the Rule
nisi
being confirmed on
the return date. A proper order is therefore one on which his costs
are awarded to him on the ordinary party/party
scale.
_____________
S. EBRAHIM, J
On behalf of applicants:
Adv. S. Grobler
Instructed by:
Peyper Sesele Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. S.J. Reinders
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
/sp