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[2009] ZAGPPHC 319
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Tovani Trading 260 CC t/a Berlo Construction v Chikala (55752/08) [2009] ZAGPPHC 319 (25 June 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: 55752/08
DATE:
2009-06-25
In
the matter between
TOVANI
TRADING 260
Applicant
CC
t/a BERLO CONSTRUCTION
and
M CH
IKALA
Respondent
JUDGMENT
PRINSLOO,
J
: This urgent application comes
before me in the urgent court. Mr Oosthuizen appears for the
applicant and Mr Louw for the respondent.
The case has an unfortunate
history which also brought the same parties to this urgent court, as
it happens before myself, in December
last year, some 6 months ago.
The applicant was
contractually bound in terms of a contract entered into with the
respondent to build a house for the latter. At
one
stage
towards the end
of last year, to put it in very broad
terms, the respondent locked the applicant out of the building
premises and indicated that
he would engage other builders to
continue with the work. This inspired the applicant to approach this
urgent court on two legs,
namely on the basis of spoliation and also
on the basis of infringement of his builder’s lien. Having
heard the matter in
December, I gave an order, the first paragraph of
which reads as follows:
“
Dat die eerste
respondent onmiddellik die applikant se besit van die bouperseel
bestaande uit ‘n woonhuis en pad gelee te
plot 89 Lewisstraat
Laezonia Agricultural Holdings Gauteng herstel.”
The second leg of the
order deals with authority to the sheriff to assist the applicant in
the event of non-compliance. It appears
that there was compliance in
the sense that the respondent left the applicant in peace to exercise
undisturbed possession of the
partly completed building [which I will
refer to as “the shell"] for a number of months. The
applicant set about placing
his foreman in the shell
every day
to maintain possession and the respondent refrained from
interfering with that undisturbed possession. Towards May of this
year,
about a month ago if I understand the allegations correctly,
the respondent started placing independent or alternative building
contractors on the premises and engaged them to start doing what the
respondent calls remedial work to the shell, including some
structural changes involving partial breaking down of the walls,
installation of window frames and also electrical wiring.
The applicant, through
his attorney, wrote two letters of demand warning the respondent to
refrain from encroaching on the undisturbed
possession that the
applicant enjoyed in terms of the court order. These letters went
unanswered. Both of them were written to
the attorneys of record of
the respondent. The respondent denies that these letters were brought
to his attention. I find that
difficult to accept. The applicant then
approached this court on an urgent basis. The question urgency was
not attacked before
me today.
The case of the
respondent, in a nutshell, is that he denies having infringed or
acted in contempt of the order. He states that
the quotation in terms
of which the shell was erected does not contain items such as, for
example, electrical wiring which includes
the work now done on the
shell by the respondent. The respondent’s attitude is that he
is entitled to continue doing work
not covered by the quotation and
that he is therefore not in contempt of the order. In the alternative
the respondent says that
he was in the
bona
fide
belief that what he did was not in
contempt of the court order, so that no
mala
fides
have been shown to exist and for
that reason, as an alternative, he ought not to be found guilty of
contempt of court.
On the first leg Mr
Oosthuizen argued, and in the end persuaded me, that on the
respondent’s argument it would mean that the
respondent can
carry on and occupy the shell and complete the building without ever
paying for the building work, which I understood
last year to run
into something in excess of R1 million, and then simply proceed to
occupy the completed building with impunity
and never pay for it. I
understood Mr Louw to agree that that was also his interpretation. I
cannot accept that that would result
in the effective compliance with
a court order under these particular and perhaps somewhat unusual
circumstances. It seems to me
that there was non-compliance with the
order for the reasons I have mentioned.
Mr Oosthuizen argued that
if the respondent wants to avoid the adverse effects of my order of
December he has various options. He
can either pay, which he has up
to now steadfastly refused to do, or he could pay under protest or he
could approach this court
to substitute the spoliation order and
allow him to give security for payment. No authority was quoted for
this proposition. Mr
Oosthuizen did not have it available but he says
he found this authority and I accept it on that basis.
That brings me to the
second leg of whether
mala
fides
have been proved. The leading case
is that of
Facie NO v CCII
Systems [Pty] Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA).
The portion of the head note which I deem to be relevant and which
can also be found at paragraphs 42 and 63 to 65 at 344H
to 345B and
at 350C to F reads as follows:
“
In particular, the
applicant had to prove the requisites of contempt (the order, service
or notice, non-compliance and wilfulness
and
mala
fides
) beyond a reasonable doubt. But,
once the applicant had proved the order, service, or notice and
non-compliance, the respondent
bore an evidentiary burden in relation
to wilfulness and
mala
fides:
Should he fail to advance evidence
that established a reasonable doubt as to whether his non-compliance
was wilful and
mala fide,
the applicant would have proved contempt beyond a
reasonable doubt.”
I
find that the applicant, for the reasons I illustrated, proved the
order, service or notice and non-compliance. I find, however,
that
the respondent discharged the evidentiary burden by establishing at
least a reasonable doubt as to whether his non-compliance
was wilful
and mala fide. The result is that I find that the applicant failed to
prove contempt of court. It seems to me that to
ensure that some
sanity prevails in this matter, and that some clarity is provided to
the parties, it was necessary to deal with
these issues as I did and
to prevent a recurrence, or in an attempt to do so, I would make the
following order.
1.
It is found that the
defendant failed to comply with the order of 12 December 2008 but
established a reasonable doubt as to whether
there was mala fides on
his part.
2.
This application for
contempt of court is suspended on condition that the respondent
refrains from the actions complained of and
which he admits having
perpetrated.
3.
If the defendant repeats
his actions or other actions which may lead to be seen as
non-compliance with the spoliation order the
applicant is given leave
to re-approach this court on the same or supplemented papers.
4.
Each party is ordered to
pay its own costs.
—
ooOoo—