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[2012] ZAFSHC 247
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Senatla Trading Enterprise 26 CC v Bloem Water and Another (779/2011) [2012] ZAFSHC 247 (20 December 2012)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH-AFRICA
Case no. 779/2011
In
the matter between:
SENATLA
TRADING ENTERPRISE 26 CC
and
BLOEM
WATER
BEN
MALAKOANE
Applicant
1
st
Respondent
2
nd
Respondent
_____________________________________________________
HEARD ON:
21 AUGUSTS 2012
_____________________________________________________
CORAM:
DANZFUSS, AJ
JUDGMENT BY:
DANZFUSS, AJ
_____________________________________________________
DATE OF JUDGMENT:
20 DECEMBER 2012
_____________________________________________________
The applicant applied
for an order that the first respondent (Bloem Water) and the second
respondent (its Chief Executive Officer)
be found in contempt of an
order of court directing the first respondent to pay certain amounts
of money into the trust account
of the applicant’s attorneys
Peyper Sesele Inc
. It also applies for an order that the
second respondent be sentenced for such contempt and for an order of
costs as between
attorney and own client.
By agreement between the
parties the request for committal for contempt of court of the
second respondent has been withdrawn because
of compliance with the
court order in the meantime. The court is requested to decide upon
the costs of the application only.
Before this application
was issued, the first respondent represented by second respondent
addressed a letter to
Madisebo Catering
being a party to the
main application in which the order to make payment was made. In
this letter the respondent records as follows:
“
You
are hereby informed by Bloem Water that it shall abide by the interim
interdict and the ruling of the High Court pending finalisation
of
the application between you and Senatla Trading Enterprise at the
High Court on or before
24
th
March
2011
.”
The
24
th
March 2011
was the return day of a rule nisi directing the
respondents to make payment.
In an opposing affidavit
by the second respondent on behalf of both respondents the following
is recorded:
(i) Second respondent was
not a party to the proceedings and although he is the Accounting
Officer of the first respondent it is
not his function or duty to
effect payments on behalf of the first respondent.
(ii) He contends that he
neither defied nor ignored the court order.
(iii) The payments have
in fact in the meantime been made on
21 February 2011
.
(iv) The first respondent
was under the
bona fide
but mistaken impression that it had to
show cause on or before Thursday, 24 March 2011 why it should not be
ordered to pay the amounts
in question. The respondents intended
abiding by the court order pending finalisation of the application on
or before
24 March 2011
.
It has been held that if
an application is made for the sole purpose of punishing the
respondent the applicant is no more than
an informer who brings the
contempt to the attention of the court and that the applicant under
such circumstances is not entitled
to an order of costs.
See:
NAUDE
EN ‘N ANDER v SEARLE
,
1970 (1) SA 388
(O) at 393 D.
It has also been held
that there was no reason why the court should not make the contemnor
to pay costs to which the informer may
have been put in presenting
the facts to the court.
See:
CAPE
TIMES LTD v UNION TRADES DIRECTORIES (PTY) LTD AND OTHERS
,
1956 (1) SA 105
(N) at 124 G;
MAKIWAME v DIE
SUID-AFRIKAANSE PERS BEPERK EN ‘N ANDER
,
1957 (2) SA
560
(W) at 564 H.
In
DU PLESSIS v DU
PLESSIS
,
1972 (4) SA 216
(O) the court held that on the facts
the purpose of the application was to enforce the order of the court
and the fact that the
enforcement of the order had not been expressly
sought in the prayers, did not alter the nature and character of the
application.
In the present matter
the applicant in its opposing affidavit specifically contends that
the application is aimed at reporting
to the court that its order is
being ignored and on the other hand, to seek compliance with the
court order by the first and
second respondents.
Although the application
has been withdrawn after payment has been made the applicant was
forced to approach court because of
the respondent’s failure.
The general rule that
the costs follow the event implies that a defaulting respondent
shall usually be ordered to pay the costs
of the proceedings for
committal.
SINGER’S
ESTATE v KOTZE
,
1960 (2) SA 304
(C) at 308 H.
The court will usually
order the respondent to pay the applicant’s costs as between
attorney and client.
MARTIN v FRENCH
HAIRDRESSING SALOONS LTD
,
1950 (4) SA 325
(W) at 330 H;
HARDY VENTURES CC v
TSHWANE METROPOLITAN MUNICIPALITY
,
2004 (1) SA 199
(T) at
204.
The court nevertheless
retains a discretion.
I am of the opinion that
the respondents’ failure to make payment timeously was not
wilful. This is borne out by the abovementioned
contentions in the
answering affidavit and more in particular the letter to
Madisebo
Catering
. The applicant nevertheless had to incur the costs of
drawing the papers and approaching the court.
The applicant did not
file a replying affidavit wherefore the respondents’
contentions that it is not the second respondent‘s
functions
or duty to make payments on behalf of the first respondent and that
the first respondent was under the
bona fide
although
mistaken impression that it had to show cause on
24 March 2011
why it should not be ordered to pay the amount in question are
not disputed.
ORDER:
Wherefore I make the
following order:
The first respondent is
ordered to pay the costs of this application including the costs of
17 February 2011
and
24 March 2011
which costs have
been ordered to stand over for later determination.
______________________
F. W. A. DANZFUSS,
AJ
On behalf of the
applicant: Adv. S. Grobler
Instructed by:
Peyper Sesele Inc
On behalf of the first
respondent: Ms N.T. Ngubane
Moroka Attorneys
On behalf of the second
respondent: Ms N. T. Ngubane
Moroka Attorneys