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[2012] ZAECELLC 7
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Bickell v Brown NO and Other (EL 579/2010, ECD 1179/2010) [2012] ZAECELLC 7 (19 April 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE,
GRAHAMSTOWN)
CASE NO: EL 579/2010
ECD 1179/2010
Date
Heard: 29 March 2012
Date
Delivered: 19 April 2012
NOT/REPORTABLE
In the matter between:
ALEXA BICKELL
…...........................................................................................
Applicant
and
SIMON AMOS BROWN NO
…...............................................................
First
Respondent
SAMMY AMOS BROWN NO
…........................................................
Second
Respondent
HKM ADMINISTRATORS CC
NO
…....................................................
Third
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
GOOSEN, J:
This is an application
for the committal for contempt of the respondents for alleged
non-compliance with the terms of a court
order granted by Smith J on
25 August 2010 sitting in the East London Circuit Local Division.
The order granted by Smith J is
in the following terms:
“
1.
THAT the (sic) subject to the certification by the appropriate
Officials of the Department of Economic Development and Environmental
Affairs, Amathola Region, East London, that the following conditions
applicable to the environmental authorisation issued by the
said
Department on the 28
th
of October 2009, have been fully complied with, namely:
that the existing open
conference centre on Farm 762/1 (East London) be and is hereby
dismantled/demolished (Condition 3.2 of
authorisation); and
that a soundproofed
conference and wedding centre be constructed in its stead
(Condition 3.2 environmental authorisation); and
that the specifications
for, and the materials to be utilised in, the construction of the
said soundproofed conference and wedding
centre, be determined
after full consultation with and recommendation of a qualified
Noise Impact Specialist (Condition 3.3
of environmental
authorisation); and
that all interested and
affected neighbours be and are hereby consulted by the Noise Impact
Specialist, and that the concerns
of all interested and affected
neighbours be considered and, where appropriate, reflected in the
design of the soundproofed
wedding and reception centre (Condition
3.3 of the environmental authorisation); and
that the wedding and
reception centre be and are hereby designed to a minimum standard
of SANS10103: 2008, or higher standard
where applicable in the
opinion of the Noise Impact Specialist (Condition 3.4 of the
environmental authorisation); and
that no construction of
the soundproofed wedding and reception centre shall commence
before:
the final design; and
a report as to how the
concerns of the interested and affected neighbours have been dealt
with in the design and the material
utilised, has been approved by
the Department of Economic Development and Environmental Affairs,
Amathola Region, East London
(Condition 3.4 of the environmental
authorisation); and
that the periphery of
Farm 762/1 (East London) be and is hereby replanted with indigenous
species of at least 1.5 metres in
height in order to form a screen
(Condition 3.7 of the environmental authorisation); and
that all alien species
on the property be and are hereby removed, and all portions of the
land not utilised for the development
be and are hereby
rehabilitated and restored by the planting of indigenous species
(Condition 3.6 of the environmental authorisation);
and
that the Respondents
employ the services of an Environmental Control Officer to ensure
compliance with all conditions aforesaid
(Condition 4.1 of the
environmental authorisation), the First and Second Respondents,
nominee officio
as Trustees of the Amos Brown Holding Trust
IT No. 268/95 be and is hereby interdicted and restrained from
organising and/or
hosting any wedding functions, receptions,
conferences and/or similar noise generating events at the said
farm, with effect
from 31
st
October 2010;
2. THAT the First and
Second Respondents,
nominee officio
, pay the costs of this
application.”
Counsel for the parties
were in agreement that upon a proper construction of the order the
first and second respondents
nominee officio
as trustees of
the Amos Brown Holding Trust IT no. 268/95 (hereinafter the Trust)
are interdicted and restrained, with effect
from 30 October 2010,
from organising and/or hosting any wedding functions, receptions,
conferences and/or similar noise generating
events on Farm 762/1,
East London (the farm) pending compliance with the conditions
stipulated in paragraphs 1.1 to 1.9 inclusive.
Upon a grammatical
construction the portion of paragraph 1.9 above which begins with
“the First and Second Respondents
...” is not part of
paragraph 1.9 but rather forms the conclusion of the introductory
portion of paragraph 1 of the order.
Counsel for the respondents
conceded that the order was understood as such and that in
evaluating this application I can accept
that the respondents so
understood its terms.
It appears from the
papers that this matter has been the subject of protracted
litigation between the parties.
1
The first and second
respondents are the trustees of a trust which is the registered
owner of portion 1 of farm 762, situated
in Gonubie on the outskirts
of East London (hereinafter “the property”). The
applicant is the owner of a neighbouring
property. It is common
cause that the property was zoned for agricultural use. During or
about 2007 the Trust commenced use of
the property as a conference
and wedding venue. To this end an existing structure on the property
located approximately 80 metres
from the boundary of the applicant’s
property was converted for use as a wedding and conference venue.
The use of the property
as a conference and wedding venue gave rise
to complaints from neighbours. These complaints concerned both the
unlawful use of
the property contrary to its zoning and the alleged
nuisance cause by the use of the property. It appears from the
papers filed
in the application which came before Smith J that the
Buffalo City Municipality was at some stage prevailed upon to launch
interdict
proceedings against the erstwhile trustees of the Trust.
These proceedings were however stayed when the trust made
application
for the rezoning of the property and sought approval for
the development of the property to be utilised
inter
alia
as
a conference and wedding reception venue. The authorisation of the
development required approval in the form of an environmental
authorisation which had to be obtained from the Provincial
Department of Economic Development and Environmental Affairs.
In or about June 2010
the applicant launched an application against the respondent in the
East London Circuit Local Division under
case number 579/2010. That
application was to interdict the unlawful use of the property
contrary to the zoning scheme applicable
to it and to abate the
nuisance caused to neighbours by such unlawful use. The order which
was sought was based on the terms
of an environmental authorisation
which had been granted by the Department of Economic Development and
Environmental Affairs.
Although it is not necessary for present
purposes to traverse the issues which arose in that application, it
is important to
record that the application was directed towards
abatement of the noise nuisance caused by the use of the existing
facilities
on the property. The Buffalo City Municipality had not
yet granted approval for the rezoning of the property. I was
informed
by Mr
Schultz
, who appeared for the respondents,
that although the application had been opposed an agreement had been
reached which was embodied
in the order granted by Smith J. The
order was thereafter served personally on both first and second
respondents and service
was also effected on the third respondent.
It is accordingly common cause between the parties that the
respondents have at all
times been aware of the existence of Smith
J’s order and had full knowledge of its terms.
The granting of the
order by Smith J did not resolve matters between the parties and
further litigation ensued. During February
2011 the applicant
launched contempt proceedings against the respondents for alleged
breaches of the court order which had occurred
during December 2010.
That application was apparently settled between the parties when the
respondents gave certain undertakings
whereby the respondents
assured the applicant that they would not host any weddings or
conferences “until such time as
the rezoning issues have been
finalised ...” It is not clear what the effect of this
undertaking was since the order of
Smith J prohibits conduct
contrary to conditions stipulated in the environmental authorisation
granted by the Department and
the rezoning of the property is not
addressed in the order.
In November 2011 the
applicant launched a further application for committal of the
respondents for contempt of Smith J’s
order. This application
was launched out of the East London Circuit Local Division
(hereinafter the East London application)
and alleged breaches of
the order on two further occasions, namely on 3 September 2011 and
15 October 2011. That application
is still pending between the
parties.
After the launch of the
East London application the applicant brought a further contempt
application against the respondents alleging
that the respondents
had again breached the court order on 26 November 2011, 3 December
2011 and 10 December 2011. It is these
alleged breaches of the order
of Smith J which form the subject of this application. The
application came before Pickering J
on 15 December 2011. It was
postponed. The order, by agreement, further records an undertaking
given by the first and second
respondents in the following terms:
“
That
the first and second respondents hereby give an undertaking not to
breach the order granted by this Honourable Court granted
on the 25
th
of August 2010 by organising and/or hosting any wedding functions,
receptions, conferences and/or similar noise generating events
at the
said farm until such time as the respondents produce a certificate
from the appropriate officials of the Department of Economic
Development and Environmental Affairs, Amathole Region, East London
that the conditions applicable to the environmental authorisation
issued by the said Department on 28
th
October 2009 have been fully complied with, as set out in the order
of court dated the 25
th
of August 2010 save that the respondents be and are hereby authorised
to hold the function for the 16
th
of December 2011, as referred to in paragraph 44.2 of the answering
affidavit.”
The indulgence granted
in relation to the 16
th
of December was, so I was
informed, to accommodate a wedding reception that had already been
arranged and so as not to inconvenience
the marriage party. The
application was thereafter postponed from time to time. The papers
include supplementary opposing affidavits
and supplementary replying
affidavits. A copy of the original set of application papers which
served before Smith J has also
been included in the court file,
presumably by way of background to the present application.
I was informed by the
applicant’s counsel that the East London application has been
held in abeyance pending the finalisation
of this application.
The applicant’s
case is the following. It is alleged that on 26 November 2011 a
function was held at the respondents’
farm commencing at 13h30
in the afternoon. During the course of the afternoon there was loud
singing and loud music which continued
until approximately 16h30.
Between 16h30 and 17h00 guests at the venue sounded the hooters of
their vehicles whereafter the noise
levels abated.
On 3 December 2011
another function was held which commenced at approximately 18h00. At
21h00 that evening loud music was being
played at the venue an there
was a great deal of shouting. This continued until midnight. At
approximately 02h00 the applicant’s
dogs became very agitated
on the boundary of the applicant’s property when guests were
leaving the function being held
on the respondents’ property.
On 10 December 2011 yet
another function was held which commenced at midday. There was loud
cheering and ululating during the
course of the afternoon which was
followed by loud music which continued until 17h00.
The respondents’
opposing affidavit raises a number of contentions regarding the
urgency with which the application was
launched. As I understood
respondents’ counsel, the challenge based on the alleged lack
of urgency of the application is
not persisted in as a substantive
challenge to the proceedings.
In regard to the merits
of the application the respondents contend that the alleged breaches
which gave rise to the first contempt
application occurred on the
basis that the respondent had been advised that the rezoning was
approved and accordingly they believed
that they were entitled to
host events on the farm. Since it was the respondents’
intention to comply with the court order
they gave the undertaking
referred to earlier and thereafter desisted from organising any
further events. The respondents point
out that the events which form
the subject matter of the East London application as well as those
which form the subject matter
of this application are the only
events organised and that they can be fully explained. In this
regard it is appropriate to quote
an extract of the opposing
affidavit since it seeks to set out the basis upon which the
respondents have dealt with the matter:
“
29.
Towards the end of August 2011 I was informed by municipal officials
that the Respondents rezoning application had been granted.
Upon my
specific enquiry, I was told that Respondents could from then onwards
legally host wedding ceremonies and other events
of the nature that
the Applicant had previously complained of and now still complains
of. I had no reason to doubt or query this
information and believed
it to be true and correct.
30. On or about 4 October
2011 Setplan: Settlement Planning Services, acting on the
Respondents’ behalf, received official
communication from
Buffalo City Metropolitan Municipality that the rezoning application
was approved. A copy thereof is annexed
hereto marked “
SAB4
”.
This confirmed the earlier advices that I had received.
31. However, upon
considering the introductory portion of paragraph A and the
provisions of paragraph B during the latter part of
October 2011, the
exact date of which I cannot recall I became uncertain as to the
legal effect of the document. I thereupon contacted
my attorney,
Craig Kirchmann, in order to invite his views. He could not give me
an authoritative answer and suggested that I contact
Setplan and a
responsible official from Buffalo City for orientation, advice and
guidance.
32. I subsequently
contacted Mr. Johan Jonas of Setplan. He advised me that the
conditions in the rezoning letter were not pre-conditions,
but merely
had a regulatory effect and that it constituted authority and a legal
premise for hosting events such as wedding ceremonies.
I had no
reason to doubt his advice as by the nature of his work he interacted
with the responsible officials of Buffalo City Municipality
on a
daily basis in respect of matters of this nature.
33. Based on the
information and confirmation received as stated above, the Further
Respondents and I, in the firm and genuine belief
that our conduct
would not and did not constitute a breach of the order of Court,
arranged and hosted the functions complained
of. I can categorically
state that, if it is found that for some reason or other the
Respondents did breach the Court order, none
of the Respondents ever
intended to compromise and impugn the integrity status and authority
of the above Honourable Court and
that we at all times believed in
the guidance and advice received from the parties mentioned above.”
The alleged advice
received from Setplan is not confirmed under oath by Mr Jonas. It is
clear from the content of these averments
that the respondents admit
that the events complained of did occur and that they had in fact
organised these events. The respondents
rely upon advice received as
justification for the alleged non-compliance with the court order.
Annexure “SAB4”
referred to in the respondent’s opposing affidavit is a letter
advising the approval of the
rezoning of the property subject to
conditions stipulated in that letter. Part A of the letter provides
that:
“
You
are hereby advised that ... council has resolved to approve ... the
application for rezoning of portion 1 of Farm 762, East
London from
Agricultural Zone 1 to Resort 1 and council’s special consent
for a hotel, subject to the following conditions
...”
What follows this are 67
conditions dealing with a broad range of matters. The following are
relevant:
“
(12)
Noise pollution raised in objections to the BAR [Basic Assessment
Report] being kept within the thresholds as stipulated in
BCM
[Buffalo City Municipality] bylaws.
(66) The applicant
adhering to all the conditions stipulated in the environmental
authorisation for the development dated 28 October
2009.”
Portion B of the letter
provides as follows:
“
Please
note that the property which is the subject of the rezoning approval
may
not
be used for such new uses as may be allowed in such zone in terms of
the Buffalo City Zoning Scheme before every condition above
has been
complied with to the satisfaction of the Director of Planning and
Economic Development.”
The Director of Planning
and Economic Development is an official of the Buffalo City
Municipality. The receipt of SAB4, i.e. the
notification of approval
of the rezoning, caused the first respondent to enquire as to
whether respondents could organise weddings
and other functions. The
respondents’ attorney was apparently unable to provide “an
authoritative answer”.
The first respondent was told to seek
advice from Setplan, a firm of planning consultants. This the first
respondent did and,
according to the first respondent, the advice
received was that the letter (SAB4) “constituted authority and
a legal premise
for hosting events such as wedding ceremonies”.
The stipulation in
paragraph B of the rezoning approval cannot be in clearer terms and
its effect is that until such time as each
and every condition is
met to the satisfaction of the designated official of the Buffalo
City Municipality the re-zoning cannot
be relied upon. This would
render use other than agricultural use unlawful. Of greater
significance however is the fact that
clause 66 specifically refers
to the environmental authorisation of 28 October 2009 which, in
terms, was incorporated in the
order of Smith J.
A reading of “SAB4”
therefore cannot have created the impression that (a) the rezoning
has been resolved and therefore
that the undertaking given by the
respondent was now discharged or that (b) the approval of the
rezoning subject to conditions
obviated compliance with any
condition imposed in terms of the court order.
It is therefore hardly
surprising that the respondent did not obtain legal advice
indicating that he could proceed. The assertion
that Mr Johan Jonas
of Setplan had advised that the conditions are not preconditions,
given the wording of “SAB4”,
is astonishing. No doubt
this explains why that fact has not been confirmed by Jonas under
oath.
In the supplementary
opposing affidavit filed pursuant to the order of Pickering J, the
respondents state that as early as June
2011 the Department of
Environmental Affairs approved the respondents’ right to
continue with its operations. A letter
issued by the Regional
Manager of Environmental Affairs for the Amathole region is annexed
where the following is recorded:
“
RE:
ALTERATION TO AN EXISTING WEDDING HALL FOR SOUND EMISSION CONTROL AT
GONUBIE MANOR
With reference to the
abovementioned application, please be advised that the Department has
decided to grant the right to continue
with operations. The reasons
for the decision are attached herewith.
In terms of the court
order, you are instructed to alter the abovementioned facility to
meet the legislative sound emission levels
in a smallholding area.
This has been achieved
by complying with recommendations made by an Environmental Noise
Impact Assessment Specialist (Mtshali-Moss
Projects Africa (Pty)
Ltd), which include:
Removing the existing
windows and brick-up.
Installing a duel
ceiling system with an immediate absorption layer for sound and
heat control.
Modification of the
three existing doorways.
This Department is
therefore satisfied with the alterations made in the wedding hall to
reduce the sound emissions.”
A second letter dated 19
January 2012 is also annexed. It states:
“
This
correspondence serves to confirm that this Department is satisfied,
based on the site inspection conducted by an official from
this
Department and the contents of the audit report submitted to this
Department, dated January 2012 as compiled by Carter Environmental
CC, that the conditions contained in this Department’s
environmental authorisation, dated 28 October 2009 (Ref.
AR/7/B/16/1/09),
which was issued in respect of the proposed rezoning
of Farm 762/1, Gonubie, have been adequately complied with inasmuch
as they
relate to wedding functions, receptions, conferences and/or
other similar noise generating events.
In view of the above,
this Department has no objection to the continuation of further
approved activities taking place on site.”
In argument before me
applicant’s counsel pointed out that the terms of the order
granted by Smith J required, in the first
place, that the existing
conference centre be demolished and that a soundproofed venue be
constructed in its stead. In this regard
it is common cause on the
papers that the existing venue has not been demolished. Whilst a new
structure is being constructed
it has, according to the respondent,
not yet been completed. Secondly, the order stipulated that the
specifications for and the
materials to be utilised in the
construction of the new venue be determined after consultation with
a Noise Impact Specialist.
Whilst it appears that a Noise Impact
Specialist, Mtshali-Moss, has been consulted, the said consultants
have at no stage consulted
all of the interested and affected
neighbours as is specifically required by clause 1.4 of the order.
The court order further
requires that no construction of the venue
should commence until a report as to how interested and affected
neighbours have been
dealt with in the design has been approved by
the Department. No report of this nature has been produced.
Applicant’s
counsel further submitted that the letters now sought to be relied
upon and produced by way of a supplementary
opposing affidavit do
not in fact address the requirements of the court order. The second
letter is dated after the breaches
of the order which are complained
of occurred. In any event the approval is not confirmed under oath
and accordingly, so it is
submitted, the evidential value of these
letters is limited.
Mr
Schultz
argued
that the court order does not stipulate the form in which it is to
be certified that the terms of the order have been complied
with. On
this basis it was suggested that some official indication of the
fact is sufficient. It was therefore argued that the
letters annexed
to the supplementary affidavit reflect that the Department had
formally indicated in June 2011 that it was satisfied.
According to the Shorter
Oxford English Dictionary a certificate is “a document in
which a fact is formally certified”.
To certify is “1.
to make (a thing) certain; to guarantee as certain; to give certain
information of, 2. to declare or
attest by a formal or legal
certificate”.
In my view, the order of
Smith J required that such a formal declaration in writing be
obtained in which it was declared, on behalf
of the Department, that
all of the conditions stipulated in the order had been met and its
terms complied with. This much is
evident too from the order made by
Pickering J. A plain reading of the order of Smith J makes it clear
that the prohibition continues
until such time as the Department
certifies compliance with the order. This required a formal
declaration to this effect by a
relevant and authorised official of
the Department.
There is no such
certificate. Nor is there any affidavit in which a responsible
official attests to the fact that the Department
is indeed satisfied
that all of the stipulated conditions have been met. The respondents
are constrained to rely upon the two
letters referred to above. In
the first instance the letter of 23 June 2011 deals with the
alterations to the existing wedding
venue. Even if it is to be
accepted that it constitutes a certification, it does not in point
of fact address each of the provisions
of Smith J’s order. It
states in broad terms that the noise reduction measures adopted are
satisfactory. It does not address
paragraphs 1.1 and 1.2 of the
court order which require that the existing venue be demolished and
that a new venue for hosting
of conferences and weddings be
constructed. Nor does the letter of 23 June deal with the specific
terms of paragraph 1.6 of the
order which require consultation by a
noise specialist with interested and affected neighbours, the
production of a report incorporating
measures to meet the
requirements of interested and affected neighbours and Departmental
certification that such report is to
its satisfaction.
There is in any event
the further consideration raised by Mr
Cole
, for the
applicant, namely that on the respondents’ own version it is
conceded that the wedding and conference venue contemplated
by the
court order is still under construction. Mr
Schultz
sought to
suggest that a distinction is to be drawn between the conference
venue on the one hand and the wedding venue on the
other. It was
argued that the wedding venue had been soundproofed to the
satisfaction of the Department whereas the conference
venue is still
under construction. He pointed to reports and design plans which
indicate the measures to be taken to ensure that
the wedding venue
is indeed soundproof.
As I understood the
respondents’ argument the “new” venue which is
still under construction will in the future
be utilised as the venue
for hosting conferences and weddings. Until such time as it is
constructed an existing venue has been
“soundproofed” in
accordance with the reports prepared by Mtshali-Moss and other
consultants. It is this which has
been approved by the Department
and accordingly, so it is argued, the respondents’ use of the
property to host weddings
does not constitute non-compliance with
the order.
Attractive as the
argument at first blush appears it cannot avail the respondents. The
very purpose of Smith J’s order was
to effect an abatement of
the noise nuisance generated by the respondents’ use of the
property for the hosting of weddings
and conferences. It did so by
compelling compliance with the conditions of the environmental
authorisation that had been issued.
That authorisation (as is
apparent from the court order) did not envisage the use of an
existing venue for the hosting of conferences
and weddings; it did
not permit the “soundproofing” of an existing venue. It
stipulated unequivocally that the existing
venue be demolished and
that a new soundproofed venue be constructed. Smith J’s order
therefore required that
until
such a new venue had been
constructed no weddings, conferences or other noise generating
events may be hosted on the property.
As indicated Mr
Schultz
relied on a report by Mtshali-Moss as reflecting compliance with
the order. That report predates Smith J’s order. Mr
Schultz
was constrained to concede that no report such as that contemplated
by paragraph 1.6.2 of the order had been produced.
The principles upon
which civil proceedings for contempt of court are adjudicated are
well established. The crime of contempt
of court involves the
unlawful and intentional violation of the authority of a judicial
officer or a judicial body acting in
such capacity. In
Fakie NO v
CCII Systems (Pty) Ltd
2006(4) SA 326 (SCA), the court at 332
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.’”
What is required to be
established, beyond a reasonable doubt, is a deliberate and
intentional violation of a court order. The
disobedience of the
order must be not only wilful but also
mala fide
. As stated
in
Fakie
(at 333C-E):
“
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).
These requirements –
that the refusal to obey should be both wilful and
mala fide
,
and that the 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.”
There is no dispute
regarding the fact that the respondents were aware of and had full
knowledge of the existence and terms of
the court order. Nor is
there a dispute as to the commission of the acts which the applicant
alleges constitutes non-compliance.
The respondents’
contention is, as I understand the defence, that it has not acted in
non-compliance with the order since
the conditions set in the order
have in fact been complied with. It is further alleged, in the
alternative it seems, that inasmuch
as it is found that the
respondents did not as a matter of fact comply with the order such
non-compliance was actuated by a mistaken
and
bona fide
belief that the respondents were entitled to act in the manner in
which they did. This mistaken but
bona fide
belief was, it is
alleged, induced by advice received from professionals regarding
respondents’ compliance and therefore
entitlement to act as
they did.
The terms of the court
order are, in my view, clear. The order requires compliance with a
number of conditions before any events
proscribed by the terms of
the interdict may be organised or arranged. The order makes it clear
that compliance with the conditions
is to be determined and
certified by the Department of Environmental Affairs. There can be
no doubt that certified compliance
with conditions stipulated by the
Department (in the environmental authorisation) and incorporated in
the court order must first
be established.
In my view the evidence
establishes that the conditions stipulated in the court order have
not been met. The evidence also establishes
that the conduct of the
respondent was in breach of the terms of the order. The only
question then is whether the respondents
were wilful and
mala
fide
in their non-compliance.
Intention in the form of
dolus eventualis
is sufficient for criminal contempt of
court. In this regard it must be shown that the non-complier
“subjectively foresaw
the possibility of his act being in
contempt of court and he was reckless as to the result” (
S
v van Niekerk
1970 (3) SA 655
(T) at 657G). As noted in
HEG
Consulting Enterprises (Pty) Ltd v Siegwart
2000(1) SA 507 (C)
at 518I-J, the subjective state of mind of a party can be proved by
inferences drawn from conduct and from
the circumstances in which
the breach of the order was committed.
The respondents’
approach to the order of Smith J was to conflate its terms with the
requirement that the property be rezoned.
Certainly this appears to
have been the basis of the undertaking given pursuant to the first
contempt application brought by
the applicant. That the respondents
continued to conflate compliance with Smith J’s order with the
resolution of the rezoning
issues is apparent from the further
conduct of the respondents when they received information that the
rezoning had been approved.
On receipt of that news the first
respondent enquired whether this meant that they could legally
organise wedding events. Upon
consideration of the terms of SAB 4
the first respondent became uncertain of the legal effect of the
document and then sought
his attorney’s opinion. He was
directed to Setplan who furnished the advice already mentioned.
This conduct in my view
indicates that the respondents subjectively foresaw the possibility
that arranging wedding events may
be in breach of the order. The
further question is whether the act of seeking advice and relying
upon that advice establishes
a reasonable and
bona fide
belief that the act of organising wedding events was not in breach
of the court order.
In
HEG Consulting
Enterprises
the following was said (at 522B) in relation to a
defence based upon advice received:
“
This
defence requires a proper setting out of the circumstances under
which the advice was given. It is incumbent upon a party relying
upon
such defence to ‘... testify in regard to all the circumstances
relevant to the giving of such advice’ (see
S
v Abrahams
1983(1) SA 137 (A) at 146 H). In motion proceedings this means that
all the relevant circumstances have to be set out on affidavit.”
The reference to the
passage in
S v Abrahams
bears emphasis. There van Winsen JA
(relying of a judgment of Tindall ACJ in
R v Meischke’s
(Pty) Ltd and Another
1948(3) SA 704 (A)) said at 146G:
In addition the Court
would require to be satisfied that the advice was given on a full and
true statement of the facts. In the
absence of such safeguards the
fact of the advice having been given was held to be of no avail as a
mitigating factor. These remarks
are pertinent to the present
enquiry, more particularly as the attorney on whose advice the
appellant claimed to have relied was
not called to testify in regard
to all the circumstances relevant to the giving of the advice.
In this instance the
facts and circumstances in which the advice was sought and given are
not set out and there is, apart from
the respondents’ say-so,
no evidence adduced to establish the nature of the advice sought or
indeed the terms of the advice
given. The respondents were
constrained to rely upon inadmissible hearsay evidence, including
double hearsay, in order to lay
a basis for the defence. It appears
in fact that the respondents’ attorneys were not prepared to
give advice regarding
compliance with the court order. The advice
alleged to have been given by Setplan is not confirmed on oath.
There is no allegation
made that Setplan considered the terms of the
court order. It is instructive too that the Department’s
officials were not
prepared to depose to affidavits confirming the
basis upon which it had been certified that the order had been
complied with.
In these circumstances the safeguards to which
reference is made in
S v Abrahams
are not present and
accordingly the mere fact that advice was allegedly sought it
cannot, without more, be said to found a reasonable
and honest
belief that the respondents were entitled to proceed to host
weddings and other noise generating events.
On the respondents’
own version the events were arranged notwithstanding that the
construction of a soundproof venue is
not yet completed. This was
known to all concerned. The order requires the demolition of the
open conference centre and the construction
of “a soundproofed
conference and wedding centre”. It is difficult to conceive of
a basis upon which a professional
could in these circumstances
advise that the conditions set in the court order have indeed been
met and that there is therefore
no risk of non-compliance with the
order by proceeding with such events. In my view the respondents’
mistaken belief that
they could proceed cannot be said to be
reasonable in the circumstances. As noted in
Fakie,
even if
the belief is objectively unreasonable it may nevertheless be
bona
fide,
although unreasonableness may evidence lack of
bona
fides.
In this instance the belief that by virtue of the
approval of the rezoning (which was expressly stated to be
conditional), the
prohibition imposed by the court order was
expunged was grossly unreasonable. The language of the rezoning
approval and that
of the court order could hardly have been clearer.
The respondents’ attorney’s alleged inability to
“provide
and authoritative answer” – bizarre as
this may be – ought at the very least to have alerted the
respondents
to the need to exercise caution. Instead the respondents
proceeded to rely upon advice that manifestly had no bearing upon
the
terms of the court order. This reflects adversely on the
respondents’
bona fides.
I am satisfied that the
applicant has proved beyond a reasonable doubt that the first and
second respondents are in contempt of
the order of Smith J granted
on 25 August 2010. It follows that the respondents must be found to
be in contempt of the court
order. The question that arises is what
sanction ought to be imposed.
The applicant in its
notice of motion sought a committal for imprisonment for a period of
12 months. Counsel however submitted
that an appropriate sanction
would be the imposition of a fine with an alternative term of
imprisonment. The respondents’
counsel in similar vein argued
that it would be appropriate given the circumstances and the fact
that the respondents are first
offenders to suspend the sentence on
appropriate terms.
Contempt of an order of
court is a very serious offence. It is an offence which by its
nature undermines the very fabric of due
process of law and erodes
the rule of law. The administration of justice cannot be effective
in the absence of proper compliance
with the orders granted by
courts. Where contemptuous conduct is found to have occurred the
sanction imposed seeks in the first
instance to vindicate the
dignity and the authority of the courts and to ensure that futher
non-compliance is deterred.
In the circumstances of
this matter it is relevant to record that the applicant felt
compelled on three separate occasions to
seek the intervention of
the courts to give effect to the terms of Smith J’s order. At
the time that the application came
before Smith J the respondents
were using the property to host weddings and other events without
first having obtained an appropriate
re-zoning of the property. At
that stage too the conditions contained in the environmental
authorisation had not been met. This
conduct reflects poorly upon
the respondents suggesting that they have paid scant regard to the
rights and entitlements of their
neighbours.
Although all three of
the trustees of the trust were cited in this application, the order
granted by Smith J imposes prohibitions
only upon the first and
second respondents in their representative capacities as trustees of
the trust. It is their committal
which is sought in this
application.
In my view it is
appropriate that the first and second respondents should be ordered
to pay a substantial fine by way of punishment
for their
contemptuous conduct. In addition it is appropriate too to impose a
period of imprisonment suspended on certain conditions
as deterrent
to conduct of this nature in the future. I intend to do so in the
order which I shall issue.
Finally there is the
question of costs. It was submitted that whereas ordinarily the
courts are inclined to make punitive costs
order in circumstances
such as these, the fact that the respondents had sought to comply
with the order and had to that end sought
advice in regard thereto,
should induce this court to grant only the ordinary costs order.
The applicant was
characterised by respondents as being an over-zealous litigator,
presumably because the applicant has been involved
in no less than
four High Court applications in which she has sought to vindicate
her rights. On the evidence before me there
is nothing to suggest
that the applicant was in any manner acting unreasonably or that the
litigation initiated by her was precipitous
or unwarranted. On the
contrary she has legitimately and with good cause sought to
vindicate her rights and interests and has
sought to do so by due
process of law. In my view the applicant is entitled to a full
indemnity as to the costs incurred by her
in vindicating her rights.
For this reason I consider that it would be appropriate to order
costs on an attorney-client scale.
I accordingly make the
following order:
The First and Second
Respondents
nominee officio
as Trustees of the Amos Brown
Holding Trust IT No. 268/95 are found to be in contempt of the
Order of this Court granted by
Smith J under case number EL
579/2010 on 25 August 2010.
The First and Second
Respondents
nominee officio
as Trustees of the Amos Brown
Holding Trust IT No. 268/95 are directed to pay a fine of
R20 000.00 (TWENTY THOUSAND RAND),
jointly and severally, the
one paying the other to be absolved, within 10 (TEN) days of the
date of this Order, payable at
the office of the Registrar of this
Court.
The First and Second
Respondents
nominee officio
as Trustees of the Amos Brown
Holding Trust IT No. 268/95 are each sentenced to 6 (SIX) months
imprisonment in the event that
the fine is not paid timeously or at
all.
The First and Second
Respondents
nominee officio
as Trustees of the Amos Brown
Holding Trust IT No. 268/95 are each sentenced to 6 (SIX) months
imprisonment wholly suspended
for a period of 3 (THREE) years on
condition that the said respondents are not again committed for
contempt of an order of
court committed within the period of
suspension of the sentence.
The First and Second
Respondents
nominee officio
as Trustees of the Amos Brown
Holding Trust IT No. 268/95 are directed, jointly and severally the
one paying the other to be
absolved, to pay the costs of this
application on an attorney and client scale.
__________________________
G GOOSEN
JUDGE OF THE HIGH
COURT
APPEARANCES
:
FOR THE APPLICANT
:
Mr.
Cole
Instructed by Wheeldon,
Rushmere & Cole
FOR THE RESPONDENTS
:
Mr.
Schultz
Instructed by N N Dullabh
& Co
1
The
papers included in the court file include a copy of the applicant’s
papers filed in the application which served before
Smith J as well
as copies of the contempt application pending before the East London
Circuit Local Division.