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[2011] ZAFSHC 7
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Naude NO and Another v Matebesi Construction (Pty) Ltd t/a CG Civils and Another (5688/2010) [2011] ZAFSHC 7 (20 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5688/2010
In the matter between:-
MARTHINUS JOHANNES
NAUDE N.O.
…...........................
First
Applicant
PHILNA NAUDE N.O.
…...................................................
Second
Applicant
(In their capacities as
Trustees of the MP Trust,
IT 1153/08)
and
MATEBESI
CONSTRUCTION (PTY) LTD
…....................
First
Respondent
t/a
C G CIVILS
JOHN PETRUS COX
…...............................................
Second
Respondent
_______________________________________________________
HEARD
ON:
25 NOVEMBER 2010
_______________________________________________________
JUDGMENT
BY:
RAMPAI, J
_______________________________________________________
DELIVERED
ON:
20 JANUARY 2011
_______________________________________________________
[1] The matter came by
way of an urgent application in terms of rule 6(12). In these motion
proceedings the relief sought by the
applicants is to have the
respondents convicted and sentenced for contempt of court. The
application is opposed by the respondents.
[2] This court (per
Claasen AJ) granted a provisional order on 12 November 2010 calling
upon the respondents to show cause on 18
November 2010 why they
should not be found guilty of contempt and sentenced. Today is the
extended return day.
[3] These contempt
proceedings are an offshoot or an interlocutory dimension of the main
action between the applicants and the first
respondent. The
applicants, as the plaintiffs, obtained summary judgment against the
first respondent, as the defendant, for the
payment of an amount of
R207 765,00 on 14 October 2009 under case number 4424/2009.
[4]
The applicants subsequently caused a writ to be issued on 22 October
2009 against the first respondent’s property. They
were
entitled
ex debito
justitiae
to levy
execution upon the judgment in their favour. On 21 January 2010 the
sheriff (Vrede) served the writ upon Mr. John Petrus
Cox, the
managing director of the first respondent. At the same time the
sheriff attached a certain Samsung Excavator SE 210, served
a notice
of judicial attachment upon the same gentleman and drew up an
inventory relative to such attachment.
[5] On 14 October 2010
the applicants applied in terms of rule 49(11) to have the attached
excavator removed and sold at the public
auction scheduled for 20
October 2010. The first respondent opposed the application. The
application was heard on 19 October 2010.
The court (per Van der
Merwe J) made the order which reads:
“
WORD DIT
GELAS DAT:
Die aansoek word uitgestel
sine
die
.
Enige party mag die aansoek ter rolle
plaas nadat uitslag gegee is ten opsigte van die respondent se
aansoek om verlof om te appelleer
deur die Hoogste Hof van Appèl.
Die balju word gemagtig om die
onderhawige SAMSUNG SLOOTGRAWER (EXCAVATOR) SE 210 in besit te neem
en te verwyder of andersins
te beveilig.
Hangende die beregting van hierdie
aansoek word die respondent verbied om die genoemde slootgrawer
enigsins te gebruik of te laat
gebruik.
Die koste van vandag is koste in die
aansoek.”
The public auction was
obviously called off by virtue of this order. This then is the common
cause and history of the matter.
[6] It is the aforegoing
court order which is now central to the current dispute. In these
proceedings the sole director of the
first respondent, Mr. J.P. Cox,
was joined as the second respondent. Previously he was not cited as a
party to any of the other
proceedings. It is the case of the
applicants that the respondents are in contempt of the aforesaid
order. The respondents put
up the defence that they did not
deliberately disobey the order.
[7] Seeing that the
respondents admitted the sheriff was not able to take possession of
the excavator and that they continued to
use the excavator, the issue
for determination was a narrow one. The issue was whether the
respondents had excusable reason(s)
for their non-compliance with the
order.
[8] Mr. Van Rhyn, counsel
for the applicants, submitted that the explanation of the respondents
was not only ridiculous, but also
false. Counsel argued that the
respondents wilfully disobeyed the order of 19 October 2010. He urged
me to confirm the provisional
order.
[9] Mr. Zietsman, counsel
for the respondent, disagreed. He submitted that the respondent had
shown that they were not in wilful
default or contempt of the order.
He urged me to acquit them by discharging the provisional order by
Claasen AJ.
[10]
It was incumbent upon the applicants to show that the respondents’
non-compliance with the court order was beyond reasonable
doubt
intentional and
mala fide
-
FAKIE NO v CCII SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at 333 B – C:
“
[9] The test
for when disobedience of a civil order constitutes contempt has come
to be stated as whether the breach was committed
'deliberately and
mala
fide
'.
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
1996 (3) SA 355 (A) at 367H - I; Jayiya v Member of
the Executive
Council for Welfare, Eastern Cape2004 (2) SA 611 (SCA) ([2003] 2 All
SA 223) in paras [18] and [19].
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.
Consolidated
Fish Distributors (Pty) Ltd v Zive and Others 1968 (2) SA 517 (C) at
524D, applied in Noel Lancaster Sands (Edms) Bpk
v Theron 1974 (3) SA
688 (T) at 691C.
Even
a refusal to comply that is objectively unreasonable may be
bona
fide
(though
unreasonableness could evidence lack of good faith).
Noel Lancaster Sands
(Edms) Bpk v Theron
1974 (3) SA 688
(T) at 692E - G
per
Botha J, rejecting the contrary view on this point expressed
in
Consolidated Fish Distributors v Zive
(above). This
Court referred to Botha J's approach with seeming approval in
Frankel
Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) at 368C - D.
.
[10] These
requirements - that the refusal to obey should be both wilful and
mala
fide
,
and that unreasonable non-compliance, provided it is
bona
fide
,
does not constitute contempt - accord with the broader definition of
the crime, of which non-compliance with civil orders is a
manifestation. They show that the offence is committed not by mere
disregard of a court order, but by the deliberate and intentional
violation of the court's dignity, repute or authority that this
evinces.
See
the formulation in S v Beyers 1968 (3) SA 70 (A) at 76E and 76F - G
and the definitions in Jonathan Burchell Principles of Criminal
Law 3
ed (2005) at 945 ('contempt of court consists in unlawfully and
intentionally violating the dignity, repute or authority
of a
judicial body, or interfering in the administration of justice in a
matter pending before it'); and C R Snyman Strafreg 4
ed (1999) at
329 ('minagting van die hof is die wederregtelike en opsetlike (a)
aantasting van die waardigheid, aansien of gesag
van 'n regterlike
amptenaar in sy regterlike hoedanigheid, of van 'n regsprekende
liggaam, of (b)
Honest
belief that non-compliance is justified or proper is incompatible
with that intent.”
[11] The decision was
elucidated as follows as regards the onus in proceedings of contempt
of court:
“
But, once
the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and
mala
fides
:
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established beyond reasonable doubt.”
See Herbstein & Van
Winsen:
The Practice of the High Courts in South Africa
, Fifth
Edition, Volume 2, p. 1104.
[12]
The second respondent, who, until this urgent application was
launched, was not a party to the main action and subsequent
interlocutory proceedings, had to be joined in these contempt
proceedings. This was done because he singularly ran the business
affairs of the first respondent, a juristic person. He was the sole
director of the respondent’s company -
TWENTIETH
CENTURY FOX FILM CORPORATION AND OTHERS v PLAYBOY FILMS (PTY) LTD AND
ANOTHER
1978 (3) SA 202
(W).
[13] Being an artificial
person, the first respondent is naturally incapable to disobey a
court order. The order primarily binds
the first respondent, and not
the second respondent, for no judgment was given against the second
respondent in his personal capacity.
However, a juristic person
functions through its director(s). That being the case, the law looks
upon those whose duty it is to
direct the business operations of a
company to see to it that a company complies with court orders. A
director who knowingly disregards
terms of an order granted against
the company whose affairs he directs and even undertakes on behalf of
the company to ensure that
the company complies with the terms of the
order, but dishonours such undertakings, is just as responsible for
the compliance and
liable for the breach as if the disobeyed order
was given against him personally.
[14]
The courts are supposed to act as vigilant sentinels of the orders
they make. The dictates of any civilised system of civil
justice
demand that the courts must jealously guard the orders they make. It
is in the interests of the community at large to do
so. Respect for
court orders is the hallmark of any civilised system of civil
justice. The administration of justice would be brought
into
disrepute if directors of companies, who deliberately disobey the
court orders with impunity, were not severely punished -
TWENTIETH
CENTURY FOX
,
supra
, at 202 A – H, 203 C –
D and 203 G – H.
[15] The underlying
purpose of contempt proceedings was aptly described as follows:
“
The object
of proceedings that are concerned with the unlawful and intentional
refusal or failure to comply with an order of court
is the imposition
of a penalty in order to vindicate the court’s honour
consequent upon the disregard of its order and/or
to compel
performance in accordance with the order.”
Herbstein
& Van Winsen:
The Practice of the
High Courts in South Africa
, Fifth
Edition, Volume 2, p. 1100.
See
also
FAKIE NO v CCII SYSTEMS (PTY) LTD
,
supra
.
[16] The courts frown
upon individuals who undermine their authority. Where a party has
displayed a high degree of moral blameworthiness
in his disobedience
he may, in addition to a criminal sanction, be saddled with a
punitive order of costs.
Herbstein & Van
Winsen:
The Civil Practice of the High Courts
of South Africa
, Fifth Edition, Volume 2, p.
1112, fn 122 – 123.
[17] That the order was
made against the first respondent on 19 October 2010 is common cause.
The order was made in the presence
of the first respondent’s
legal representatives, attorney and advocate. At that stage Mr.
Dieperink Möller of Symington
& De Kok acted for the first
respondent. He was obviously appointed by the second respondent.
Therefore the attorney’s
knowledge of the order can be
constructively imputed to the respondent’s knowledge. This much
the respondents admitted in
the answering affidavit. The order was,
for all intends and purposes, deemed to have been effectively served
upon the respondents.
[18] The order authorised
the sheriff to take possession of the excavator and to remove it from
the first respondent for preservation.
Moreover, the order prohibited
the first respondent from using or causing the excavator to be used
pending the adjudication of
the application in terms of rule 49(11),
which currently stands postponed. The order, notwithstanding, the
sheriff was unable to
take physical possession of the attached
excavator for safekeeping in accordance with paragraph 3 of the order
and the first respondent
continued using the excavator in
contravention of paragraph 4 of the order. These matters are common
cause.
[19] The motivation which
prompted Van der Merwe J to make the order he did, was that although
the excavator had been attached by
the sheriff as far back as 21
January 2010, some nine months earlier, the first respondent carried
on using the excavator, seemingly
on almost daily basis. This is
expressly admitted.
[20] After the grant of
the order on 19 October 2010, the sheriff made fruitless attempts to
remove the attached excavator from
the first respondent’s
premises, but the excavator was nowhere to be found. On 21 October
2010 the second respondent’s
wife, Ms Mellet Cox, informed the
sheriff that the excavator was either at Kuruman or De Aar. The
response of the respondents to
the averment was that Ms Cox had in
fact informed the sheriff that she was not an employee of the first
respondent; that she did
not know much about the first respondent’s
excavators and that the sheriff should take the matter up with the
second respondent.
She also added that all she knew was that one of
the excavators was at Prieska.
[21] Although the lady
and the sheriff seemed to differ about certain insignificant aspects
of the discussion, such as the exact
whereabouts of the excavator
which was under judicial attachment, they were implicitly agreed
about one significant aspect and
that was that there was virtually no
Samsung Excavator SE 210 on the premises of the first respondent at
the time. Therefore, wherever
the attached excavator really was at
the time, was immaterial. What mattered in law was that, the first
respondent had removed
or caused to be removed an excavator, which
both respondents knew the sheriff had placed under judicial
attachment. From the moment
of such attachment, the excavator was
de
iure
in the constructive possession of the sheriff, although it
was physically left on the premises of the first respondent.
[22] On 1 November 2010
the sheriff again endeavoured to remove the excavator (annexure “H”,
founding affidavit) but
on that occasion Ms Mellet did not know where
the excavator was. Apparently, she hardly knew where the excavator
was, which on
21 October 2010 was supposed to come back from Prieska:
“
... binne
die volgende dag of twee na Vrede behoort te kom.”
(
Vide
para 15: 6 – 7, answering
affidavit.)
Her conduct was suspect.
It created a strong suspicion that she had something to hide.
[23] Three days later, on
4 November 2010 to be precise, the sheriff met Mr. John P. Cox, the
second respondent, at the first respondent’s
premises situated
at 25 Fleck Street, Vrede. In the return of service (annexure “I”,
founding affidavit) Mr. G.M. Strydom,
the sheriff, reported to the
registrar and Messrs Honey Attorneys as follows:
“
Op hierdie
4de dag van NOVEMBER 2010 het ek gepoog om die SAMSUNG EXCAVATOR SE
210 te verwyder by die perseel van MATABESI CONSTRUCTIONS
(EDMS) BPK
h/a CG CIVILS te FLECKSTRAAT 25, VREDE, Provinsie Vrystaat.
Ek is meegedeel deur mnr JOHN COX,
Besturende Direkteur, en nie jonger as 16 jaar nie, meegedeel dat die
implement tans iewers in
Zambië is, maar kon nie presiese adres
aan my gee nie.”
[24] The very next day (5
November 2010) the sheriff yet again met the same gentleman, the
managing director of the first respondent.
The response he received
from the second respondent was precisely the same as that of the
previous day (annexure “J”,
founding affidavit). The
striking feature of similarity on these two further encounters
between the sheriff and the second respondent
is that the second
respondent refrained from saying what happened to the excavator which
was judicially attached in his presence.
Moreover, he said no word
about the excavator, which his wife and apparently he too had
expected to be back at Vrede from Prieska
on 22 October 2010 of 28
October 2010 at the very latest.
[25] On 8 November 2010
the sheriff once again made another futile attempt to remove the
excavator in accordance with the terms
and conditions of the order
(annexure “A”, founding affidavit). Eventually the
sheriff reported as follows as per his
return (annexure “K”,
founding affidavit):
“
Op hierdie
8ste dag van NOVEMBER 2010 het ek gepoog om die SAMSUNG EXCAVATOR SE
210 te verwyder by die perseel van MATABESI CONSTRUCTIONS
(EDMS) BPK
h/a CG CIVILS te FLECKSTRAAT 25, VREDE, Provinsie Vrystaat.
Mnr JOHN COX, Besturende Direkteur, en
nie jonger as 16 jaar nie, het egter geweier om my enige verdere
inligting omtrent die betrokke
implement te gee.”
[26] The respondents did
not pertinently deal with this encounter in the answering affidavit.
I can see no reason and none was given
why the sheriff, a person with
no interest in the matter, would have given such a report unless it
was a true and accurate return
of his encounter with the second
respondent. It has to be accepted, therefore, that the second
respondent was uncooperative, obstructive
and disinformative in his
dealings with the sheriff concerning the excavator.
[27] I am of the view:
that the applicants have made out a
prima facie
case; that
this court made the order; that the sheriff served the order on the
respondents; that the respondents did not comply
with the order; that
instead the respondents prevented the sheriff from removing the
judicially attached excavator and that the
respondents were actuated
by wilfulness and
mala fides
in their persistent and prolonged
refusal to surrender physical possession of the excavator to the
sheriff. The applicants have,
in my view, discharged the initial onus
of showing wilfulness and lack of
bona fides
on the part of
the respondents – Herbstein & Van Winsen, p. 1103.
[28] Now the respondents
bear the evidential burden to rebut wilfulness and
mala fides
which have
prima facie
marred or characterised their proven
non-compliance with the order –
FAKIE’s
-case,
supra
.
[29] The crux of the
respondents’ defence was that they did not spitefully disobey
the court order and that their non-compliance
was unfortunately
occasioned by the fact that the first respondent owned 19 similar
excavators all of which fitted the manufacturing
model description of
Samsung Excavator SE 210. The particular excavator, which the sheriff
attached on 21 January 2010, was on
the first respondent’s
business premises at Vrede. The second respondent was hospitalised
two months afterwards from March
to July 2010. In his four months
absence the first respondent’s operations were managed by his
wife, Ms Mellet Cox, as well
as the managers.
[30] On 4 November 2010
he informed the sheriff that the specific excavator which the sheriff
had attached was in Zambia where it
was busy with some excavations.
He also informed the sheriff that it was not practically possible to
have that particular excavator
brought back to the country within a
matter of days. The delays of a number of days were expected to be
caused by officially stringent
cross-border requirements. He raised
as an excuse the allegation that during the discussions he had with
the sheriff, the sheriff
did not furnish him with the chassis number
of the excavator he was looking for.
[31] Subsequent to the
service of the current application for the preservation of the
excavator, he, the second respondent, ascertained
that the specific
excavator was somewhere at Memel here in the Free State Province. He
undertook to have it brought back to Vrede
as soon as possible. When
the matter was argued before me for the confirmation or discharge of
the provisional order, the sheriff
had still not regained physical
possession of the excavator.
[32] Some critique of the
version of the respondents is called for. On 21 January 2010 the
sheriff placed a particular excavator
under judicial attachment. The
attachment took place at the first respondent’s business
premises. The second respondent was
present at the time the excavator
was judicially attached. So was the first respondent’s manager,
a certain Mr. J. van der
Merwe. The notice of attachment was served
on the second respondent. The legal effect of judicial attachment was
that the first
respondent was precluded from using, removing, letting
or in any other way alienating the excavator. Although the excavator
remained
on the premises of the first respondent, it was in law under
the control of the sheriff by virtue of such judicial attachment.
Nobody was therefore allowed to have it removed without the knowledge
of the sheriff.
[33] The sheriff
described the equipment he attached as a Samsung Excavator SE 210. It
seemed he was unaware that the first respondent
had a fleet of 18
other excavators with identical description. The second respondent
did not draw the attention of the sheriff
to that fact. Instead, the
second respondent withheld the information. He knew that each
excavator had a unique chassis number.
If he acted in good faith in
his dealings with the sheriff, he would have brought this matter to
the sheriff’s attention
immediately so as to avoid any further
confusion in the future.
[34] The second
respondent’s complaint that the sheriff did not furnish him
with the chassis number of the attached excavator,
was therefore
ridiculous. He knew that the chassis number was an important feature
through which he could identify the attached
excavator from the rest.
Chassis number or no chassis number, the second respondent knew very
well which excavator the sheriff
had placed under judicial
attachment. All he had to do, was to respect and obey the judicial
attachment. It was not his case that
he ever drew it to the special
attention of the first respondent’s managers, that the
particular excavator was no longer
supposed to be used or removed
because it was
de iure
in the constructive possession of the
sheriff. Again his failure to do so demonstrates lack of
bona
fides
.
[35] The version of the
respondents is riddled with vagueness. They do not say which manager
caused the excavator to be removed;
who was the operator assigned to
the excavator when it was so removed; to which place it was taken;
when it was taken away from
Vrede; to whom it was hired out and for
how long. The deponent obscurely seemed to suggest that the excavator
was removed without
his knowledge while he was in hospital. However,
he gave no specific details.
[36] He vaguely
insinuated that he was not personally responsible for the removal of
the excavator. The explanation failed to impress
me as a good excuse.
If that was indeed the case, the second respondent would have
expressly mentioned the steps, which he took
on his own accord, from
7 July 2010, after his discharge from the hospital, to have the
attached excavator traced and returned
to Vrede. We know he did not.
His apparent omission to do anything about the matter, after his
release from the hospital, suggested
that the excavator in question
might as well have been removed, on his instructions or with his full
knowledge, before he was even
hospitalised.
[37] On two consecutive
days the second respondent told the sheriff that the excavator was in
Zambia. He gave no specific details
of the exact town, let alone the
exact address in Zambia. When on the third occasion the sheriff
pressured him to give accurate
and meaningful information about the
wanted excavator, the second respondent obstinately refused to
divulge any constructive information.
His obstructive attitude or
behaviour towards the sheriff was pretty much the same as that of his
wife. It will be recalled that
she met the sheriff on two occasions.
Initially she said the excavator was at Prieska. On the very next
occasion she did not have
any clue concerning its whereabouts. None
of them ever made the sheriff aware that there was a fleet of
excavators or gave him
any information of the exact whereabouts of
the other 16. They claimed that one of the fleet was in the Western
Province, another
in Zambia far beyond the borders of this province.
The third and the nearest was somewhere at Memel. Where were the
rest? Since
they all have the same description the second respondent
could simply have pointed anyone of them to the sheriff as the one
the
sheriff had attached and there would have been no dispute.
[38] The second
respondent averred that, after the sheriff had served this
application on him, he established via Mr. Jaco van der
Merwe that
the attached excavator was busy with excavations somewhere in the
vicinity of Braamhoek outside Memel. It seemed to
me that all along
this particular manager knew the whereabouts of the attached
excavator. However, the second respondent gave no
explanation as to
why he did not, sooner than he did, enquire from this manager about
the attached excavator. Moreover, he did
not explain why he did not
instruct the same manager to see to it that the attached excavator
was grounded or at least not removed
from Vrede at all.
[39] In the circumstance
I am persuaded that the vagueness of the explanation of the
respondents, coupled with the obstructive conduct
of the second
respondent and his wife, strongly suggested that they deliberately
removed the judicially attached excavator and
deliberately concealed
it to frustrate the rights of the applicants to execute the judgment.
Their version, which was plaqued by
vagueness and their actions which
were bedevilled by disobedience, demonstrated their wilfulness and
mala fides
. I firmly reject as false their defence that they
innocently failed to comply with the order by Van der Merwe J. There
was no
bona fide
mistake, confusion or uncertainty as to the
excavator placed under judicial attachment.
[40] The legal position
is clear. The law imposed the evidential burden on the respondents to
show that their disobedience was not
tainted by wilfulness and
mala
fides
. They have failed to show the innocence of their
non-compliance. Since they have failed, the
prima facie
onus
discharged by the applicants now becomes proof beyond reasonable
doubt that the respondents were indeed in wilful and
mala fide
breach of the order in question –
FAKIE’s
decision,
supra
.
[41] I have therefore
come to the conclusion that the respondents have shown no good cause
why the provisional order by Claasen
AJ should not be confirmed as a
final order. I am inclined so to confirm it.
[42] Accordingly I make
the following order:
42.1 The provisional
order of 12 November 2010 is confirmed.
42.2 The respondents are
found guilty of contempt of the order of this court dated 19 October
2010.
42.3 The second
respondent is sentenced to R4 000,00 fine or 4 (four) months
imprisonment plus a further 3 (three) months imprisonment
which is
wholly suspended for 3 (three) years on condition: firstly, that the
respondents are not again found guilty of contempt
of court committed
during the period of suspension and secondly, that they comply with
paragraph 4 of the aforesaid order.
42.4 The respondents are
directed to pay the costs of this application, jointly and severally,
the one paying the other to be absolved,
on the scale as between
attorney and client.
______________
M.H. RAMPAI, J
On behalf of applicants:
Adv. A.J.R. van Rhyn SC Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of respondents:
Adv. P.J.J. Zietsman
Instructed by:
Steyn-Meyer Inc.
BLOEMFONTEIN
/sp