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[2010] ZAFSHC 106
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Sonnenberg v Shwababa and Another (3814/09) [2010] ZAFSHC 106 (11 March 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 3814/09
In
the case between:
JUAN
PIETER SONNENBERG
….......................................
Applicant
and
MZWANDILE
SHWABABA
…..............................................
First
Respondent
GRAVEN
MINING BK
….......................................................
Second
Respondent
CORAM:
LEKALE,
AJ
JUDGMENT:
LEKALE,
AJ
HEARD
ON:
4
MARCH 2010
DELIVERED
ON:
11
March 2010
[1]
This is an application for an order:
[1.1]
effectively declaring the respondents to be in contempt of an order
of this court issued on the 4
th
June
2009 by Jordaan J under case number 2575/2009;
[1.2]
committing the First Respondent to imprisonment for such a period as
the court may deem appropriate and directing the Second
Respondent to
pay such a fine as may be determined by the court for being in
contempt of the said Court order;
[1.3]
suspending the operation of the penal order in [1.2] above on
condition that the respondents shall do the following within
10 days
of judgment herein:
[1.3.1]
remove the gates installed by them in the fence around the
applicant's farm, being the Remaining Portion of the Farm Diamant
631, Boshof district;
[1.3.2]
repair or cause to be repaired the said fence together with all the
equipment regulating and activating the electricity
flow therein so
as to restore it to the condition it was in prior to the 22
nd
May
2009;
[1.3.3]
fill and limit the excavations made by them on the surface of the
said farm to the condition the ground was in before the
22
nd
May
2009.
[2]
The parties are effectively in dispute over whether or not the
respondents failed to comply with the relevant order. The applicant
contends that the order in question effectively required the
respondents to undertake the tasks set out from paragraph [1.3.1]
to
and including paragraph [1.3.3] above. The respondents, on their
part, effectively maintain that the order, in effect, only
directed
them to vacate the farm thereby leaving the applicant in peaceful and
undisturbed possession or occupation of his farm.
[3]
The issue before the court, therefore, revolves around the proper
interpretation of the relevant order. In my view and as correctly
submitted by Mr Van Niekerk for the applicant, a finding that the
construction attached to the order by the respondents is the
correct
and proper one would bring the enquiry to an end. On the other hand,
a finding for the applicant in this regard would usher
in a further
enquiry into whether or not the respondents are guilty of contempt of
court.
BACKGROUND:
[4]
On the 23
rd
May
2009 the applicant caused an interim order to issue directing the
respondents to place the applicant forthwith in undisturbed
possession of the property viz. the Remaining Portion of the Farm
Diamant 631, district Boshof, Free State Province.
[5]
The said order was, eventually, confirmed by the Court on the 4
th
June
2009 after the parties had delivered answering and replying
affidavits.
[6]
In support of the order in question the applicant effectively
deposed, inter alia, that the respondents had invaded his property,
which he has developed into a game farm, and cut the fence, installed
two gates and used heavy machinery to make some excavations.
In his
replying affidavit he also disputed the lawfulness of the prospecting
licence which the first respondent has apparently
secured in respect
of the relevant property.
[7]
In their opposing papers the respondents, on their part, insisted
that they had the right to enter and prospect for diamonds
on the
property in question by virtue of the prospecting licence issued to
the first respondent by the Department of Minerals and
Energy.
[8]
The said prospecting licence is currently the subject matter of a
review application between the parties pending before this
court
CONTEMPT
OF COURT ORDER:
[9]
In the proceedings seeking the committal of the alleged contemnor to
prison for contempt of a court order, the applicant must
establish
the following beyond reasonable doubt:
[9.1
] the existence of the court order;
[9.2]
its service on the respondent; and
[9.3]
non-compliance with the order.
[10]
Once the aforegoing have been established the evidentiary burden
shifts to the respondent alleged contemnor to raise a reasonable
doubt as to whether non-compliance was wilful and mala fide. Failure
on the part of the respondent to adduce such evidence raising
a
reasonable doubt results in the offence having been proved beyond
reasonable doubt, (see generally
Fakie
NO v CCII Systems (Ptv) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)).
COURT
ORDER AND INTERPRETATION THEREOF:
[11]
In its technical legal usage the word
"judgment"
refers
to the formal order drawn up by the Registrar of the court and
embodied in a separate document signed by him. The Court order
as
embodied in that document gets served by the Sheriff on the
respondents and constitutes the substantive order which can be
appealed against and not the reasons for the judgment, (see generally
Western
Johannesburg Rent Board
and
Another
v Ursula Mansions (Ptv) Ltd
1948(3)
SA 353 (A) @ 355
and
Administrator,
Cape & Another v Ntshwaqela & others
1990(1)
SA 705 (A))
[12]
The effect of a court order is ascertained from reading the order or
judgment as a whole by giving words their natural and
ordinary
meaning as the case is when interpreting other documents. As the
Court in
Firestone
South Africa (Ptv) Ltd Genticuro AG
1977
(4) SA 298
(A) pointed out per Trollip JA at page 304 D-H):
"...
The basic principles applicable to the construction of documents also
apply to the construction of a court's judgment
or order. The Court's
intention is to be ascertained primarily from the language of the
judgment or order as construed according
to the usual well-known
rules."
[13]
The order must be read as a whole by reference to its context and
objects. If the meaning is clear and not unambiguous, no
extrinsic
fact or evidence is admissible to contradict, vary, qualify or
supplement it.
(see
Simon
NO and other v Mitsui & Co. Ltd and others
1997(2)
SA 475 (WLD))
[14]
The
ipsissima
verba
of
the relevant order is as follows:
"dat
die respondente [word] gelas [...] om onverwyld die appiikant in
ongestoorde besit te plaas van die eiendom synde Resterende
Gedeelte
van die plaas Diamant 631, distrik Boshof, Provinsie Vrystaat."
[15]
The wording of the relevant order was not chosen and formulated by
the court. It came from the Notice of Motion and is, as
such,
directly attributable to the applicant who couched it as, inter alia,
the primary relief he sought when he caused the relevant
rule nisi to
issue.
DISPUTE:
[16]
The parties are effectively at variance over the meaning of the
phrase
"undisturbed
possession"
as
used in the order. The applicant effectively contends that, in the
context of a spoliation order, the phase means the restoration
of the
status
quo
ante
in the sense that the applicant should be placed in the possession he
had prior to the spoliation. Where the acts of spoliation
resulted in
some damage to the property the necessary repairs or adjustments have
to be effected in order to restore the
status
quo ante.
[17]
On their part, the respondents effectively contend that the relevant
phrase does not require them to do anything other than
to vacate the
farm. Where the order required them to, inter alia, remove the gates
the court would, according to them, have specifically
made mention of
that fact as the position was in other cases in
pari
materia.
Their
view is that the court has the power and, in fact, does make such
specific orders in appropriate cases in the context of
mandament
van spolie.
They
argue further that the relevant order is clear and unambiguous and,
as such, there is no cause for extrinsic evidence to be
introduced so
as to supplement it.
FINDINGS:
[18]
The parties are
ad
idem
with
regard to the nature, effect and purpose of an order for
mandamentem
van spolie.
They
are further in agreement that in appropriate cases the courts are not
reluctant to direct the respondents to perform specific
acts
necessary for the restoration of the status quo ante, (see
Rikhotso
v Northcliff Ceramics (Ptv) Ltd
1997(1)
SA 526 (W)
among
others).
[19]
Their dispute is related to whether or not the doing of specific acts
desired by the applicant, in order to restore the farm
to the
condition in which it was prior to spoliation, is implied in the
words
"undisturbed
possession"
as
used in the context of a spoliation application. The applicant
answers this question in the affirmative while the respondents
maintain that such acts should have been ordered specifically as
ancillary orders.
[20]
When all is said and done I am satisfied, as correctly and ,
effectively pointed out by the parties, that the word
"undisturbed"
as
used in the relevant order qualifies possession and not the relevant
property. The effect of the aforegoing is that the respondents
were
required to place the applicant in
unhindered
or
unencumbered
and
peaceful possession of the farm. It did not and does not require them
to deal with the property so as to ensure that it is not
"disturbed"
or
changed from what it was when they invaded it.
[21]
As correctly contended by Mr Grobler for the respondents, the wording
of the order is clear and does not require and allow
for any
elucidation by way of, inter alia, introduction of extrinsic
evidence. The order is, further, silent on the doing of any
act other
than restoration of peaceful and undisturbed possession of the farm
to the applicant.
[22]
In my view it is necessary for the specific directives to be apparent
ex
facie
the
relevant order before the respondents can be required to perform the
acts that the applicant is desirous of. In my judgment,
the
interpretation attached to the order by the applicant would, with
respect, have the effect of supplementing the order so as
to make it
cover the areas which my brother Jordaan J was not requested to and,
in fact, did not cover when he first issued the
rule nisi and,
eventually, confirmed the same on the 4
th
June
2009.
[23]
To accede to the applicant's request for an order declaring the
respondents to be in contempt for failing to perform the acts
in
question would strain the words of the court and amount to putting
words in the court's mouth.
[24]
As an alternative to the contempt order, Mr van Niekerk argued for
the making of an order declaring that the relevant Court
Order
required the respondents to do the acts desired by the applicant. It
is, however, clear from the above findings that the
wording of the
order is not elastic enough to permit of and accommodate such a
liberal construction.
[25]
The respondents are, thus, not guilty of contempt of court order.
ORDER:
[26]
In the result the application is dismissed with costs.
L.J. LEKALE, AJ
On
behalf of applicant: Adv Van Niekerk
Instructed
by: Lovius Block
On
behalf of respondents Adv Grobler
Instructed
by: Kramer
Weihmann
& Joubert