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[2009] ZAGPPHC 267
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City of Tshwane Metropolitan Municipality v Beukes (37742/2006) [2009] ZAGPPHC 267 (22 September 2009)
NOT REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
SOUTH AFRICA)
CASE
NO: 37742/2006
DATE:22/09/2009
In
the matter between:
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
…...................................
Applicant
and
BEUKES
GETRUIDA
JOHANNA
…......................................................................
First
Respondent
BEUKES,
ADOLF
CHARLES
.................................................................................
Second
Respondent
JUDGMENT
MOTHLE
A J
1.
City of Tshwane Metropolitan Municipality (“the Applicant”)
brought an application requesting the Court to hold Mr
and Mrs Beukes
(“the Respondents”) in contempt of Court for non-
compliance with a Court order issued by this Court
on the 21st June
2006.
2.
During or about June 2006, the Applicant brought an application in
this Court, in essence seeking relief that the First Respondent
be
ordered to immediately cease the use of Erf 186, Faerie Glen,
Pretoria, Gauteng for purposes of a commune and/or tenements.
The use
of the property was alleged to be in conflict with the provisions of
the Pretoria Town Planning Scheme 1974 as well as
in contravention of
the National Building Regulations and Building Standards Act, 103 of
1977.
3.
The First Respondent is further alleged to have erected structures on
the property without approved building plans and the occupation
of
such structures without an occupation certificate.
4.
The orders sought by the Applicant required the First Respondent to
remove, from the property, all persons occupying such property
and to
submit approvable building plans for all buildings and structures on
the property. An alternative prayer was that if the
First Respondent
fails to cease the use of that property, and to evict the occupants
from the building, the Applicant be authorised
to proceed to
implement the terms of the order at the First Respondents’
costs.
5.
The matter came before Motimele A J on the 21 June 2006, who granted
the following order against the First Respondent:
“
Having
heard counsel for the parties and having read the documents filed of
record, it is ordered:
1.
That the Respondent immediately cease the use of Erf 1856, Faerie
Glen, Pretoria, Gauteng (“the subject property”)
for
purposes of a commune and/or tenements, which use is in conflict of
the provisions of the Pretoria Town Planning Scheme, 1974
(“the
scheme”).
2.
That the Respondent immediately cease the use of the subject property
in contravention of the National Building Regulations and
Buildings
Standards Act, Act 103 of 1977 (“the Act”), which
contravention stems from the erection of structures on
the subject
property without approved building plans and the occupation of such
structures without an occupation certificate.
3.
That the Respondent, within a period of 20 days from the granting of
this order, remove from the subject property all persons
occupying,
or being for any other purpose on the subject property in
contravention of the Act and the Scheme.
4.
That the Respondent ensures that the building and illegal structures
on the subject property be vacated until the buildings on
the subject
property have been brought in line with approved building plans, are
safe for human habitation and the necessary occupancy
certificates
have been issued.
5.
That should the Respondent not comply with the provisions of prayers
1, 2, 3 and 4 as set out above, the Applicant be authorised
to
proceed to implement the terms of this order, at the Respondent’s
costs.
6.
That the Respondent, within a period of 14 days from the granting of
this order, submit approvable building plans for all buildings
and
structures on the subject property with the Applicant for approval
thereof.
7.
That the Respondent ensures that all the buildings and structures on
the subject property are in line with approved building
plans within
20 days from such plans being approved.
8.
That should the Respondent fail to comply with prayer 7, the Sheriff,
in whose jurisdictional area the subject property is situated,
be
ordered to demolish, at the cost of the Respondent, all structures
not in line with approved plans.
9.
That the Respondent pays the costs of this application on a scale as
between attorney and own client.”
6.
The Applicant now alleges in the founding affidavit that the
Respondents failed to execute the Court orders and are therefore
in
contempt. In particular, the Applicants submit that because the
Second Respondent, being the husband to the First Respondent,
though
not cited in the main proceedings giving rise to the Court order, has
been actively assisting the First Respondent and he
too must also be
held in contempt.
7.
Civil contempt is the wilful and mala fide refusal or failure to
comply with an order of Court. See in this regard Holtz v Douglas
&
Associates (OFS) CC & Andere
1991 (2) SA 797
(O). Herbstein and
Van Winsen “ The Civil Practice of the Superior Courts in South
Africa"_4th Edition, Juta and Co.
1997 at page 817 states the
principle concerning contempt proceedings as follows:
“
The
object of proceedings that are concerned with the wilful refusal of
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 to compel performance
in
accordance with the order.”
8.
It is trite that before a person can be found guilty of contempt of
Court, his or her disobedience of the Court order must be
wilful and
mala fide. In this regard I refer to the matter of Clement v Clement
1961 (3) SA 861
(T). The onus rests on the person who failed to
comply with the order to rebut the inference of wilfulness on a
balance of probabilities.
See in this regard Putco Limited v TV and
Radio Guarantee Co. (Pty) Ltd and other related cases
1985 (4) SA 809
(A).
9. It is further not disputed that the
Court order was one of specific instructions to cease the usage of
the property, evict all
people resident in the buildings on the
property and submit proper plans for approval by the municipality for
any structure that
needs to be put on the property. It is in fact a
Court order that is one of ad factum praestandum and is capable of
enforcement
through contempt proceedings. In this regard I refer to
the matter of Metropolitan Industrial Corporation (Pty) Ltd v Hughes
1959 (1) SA 224
(T).
10.
The Respondents in their answering affidavit claim that they did
comply with the Court order. To illustrate this, they attach
a letter
written in 2008 to the Applicant, wherein they advise that they have
issued a one-month notice in July 2008 for all tenants
to vacate the
property. There is no indication in the answering affidavit:
10.1.
Whether the tenants did leave their occupation of the buildings on
the premises of the property, at that time; and
10.2.
Why there was failure to comply with the Court order for the period
June 2006 when it was handed down up until June 2008,
if indeed it
was complied with after the latter date.
11.
The Respondents however point out that they offered to make payment
to the Applicant to defray the costs of the previous hearing
leading
to the Court order, but their offer was rejected by the Applicant.
They further testify that they filed plans for the construction
of
buildings on the site, which were approved by the Applicant but later
that approval was withdrawn. According to them, subsequent
to the
withdrawal, they filed another set of plans for approval which to
date remains unattended and there is no response from
the Applicant.
All these, was from 2008, two years after the Court made its order.
12.
The Applicant concedes that it did receive a set of plans from the
Respondents but after initially approving the plans, it withdrew
the
approval as those plans did not meet with the required regulations.
As to the submission of the next set of plans, the Applicant
argues
that these are not capable of approval as these plans still fall
short of the requirements.
13.
It seems to me that there is evidence, of post May 2008 attempt by
the Respondents to comply with the Court order. However,
these
attempts came about two years after the Court order was granted. The
Court order specified compliance within 14 days from
the date it was
delivered. As I indicated above, there is no explanation on the part
of the First Respondent as to why she did
not comply with the Court
order from June 2006 up until June 2008.
14.
It is clear that there has been non-compliance with the Court order,
at least for the first two years. As to what transpired
after June
2008, there appears to be conflicting versions with the Applicant
insisting that it had to enter the premises and demolish
some of the
buildings after realising that the Respondent is not executing the
Court order. The Respondents maintain that as at
the hearing of this
application, they had all left the premises.
15.
For the purposes of this enquiry, however, I find it unnecessary to
deal with what may in the meantime have transpired, after
the
contempt proceedings have been instituted. Suffice it to state that
if indeed the Respondents are no longer on the property,
there is no
need for further evictions in compliance with the Court order.
16.
The Court order concerned only the First Respondent. The Second
Respondent was neither cited nor ordered by the Court as a
Respondent. Counsel for the Applicant, however, referred me to a
number of authorities where members of commercial entities and/or
organs of State were found guilty of contempt. The authorities cited
included the matter of 20th Century Fox Film Corporation v
Playboy
Films
1978 (3) SA 203
(W), where a director of a company who caused
the company to disobey a court order, made himself guilty of
contempt; State v Gerber
in re: State v Baleka
1986 (4) SA 214
(T)
where the proprietor, publisher and editor of a newspaper which was a
subject of a charge of contempt, was held liable; East
London Local
Transitional Council v MEC for Health
2001 (3) SA 1133
(CKHC), where
it was held that officials and Ministers of State may be held in
contempt.
17.
It is clear that the capacities in which the persons involved in the
authorities cited above are official capacities and not
spouses in a
marriage. However, in Holtz v Douglas and Associates (OFS) CC en
Andere
1991 (2) SA 797
(O), the Court held that just as in other
crimes, a person can be found guilty of contempt as an accessory.
This may include a
spouse.
18.
The First Respondent failed to give a proper explanation as to why
she did not comply with the Court order 14 days after June
2006. In
June 2008, the Second Respondent, acting on her behalf, communicated
with the City of Tshwane and made an offer to evict
the tenants on
the premises as well as to pay the costs due to the Applicant. There
is therefore no evidence implicating the Second
Respondent as an
accessory in regard to the conduct of the First Respondent in not
complying with the Court order in the first
two years after it was
granted.
19.
I find no factual or legal basis to hold the Second Respondent
responsible for the execution of the Court order of 21 June 2006.
In
this regard I refer to Consolidated Fish Distributors (Pty) Ltd v and
Others
1969 (2) SA 517
(C).
20.
In regard to the First Respondent, the Court order was issued,
ordering her to execute a number of directives within 14 days
after
the date of the order. There is no explanation as to why there was
failure to comply with the Court order between June 2006
and June
2008. For that reason, I find under the circumstances that the First
Respondent has acted wilfully and in mala fide and
is therefore
guilty of contempt of the Court order of June 2006. By failing to
provide an explanation for her conduct during the
first two years,
she did not succeed to rebut the inference that she did not act
wilfully and in mala fide. See Putco Limited v
TV and Radio Guarantee
Co. (pty) Ltd and other related cases supra.
In
the premises I make the following order:
1.
The application succeeds and the First Respondent is found guilty of
contempt of the Court order of June 2006 issued by this
Court;
2.
A sentence of four (4) months imprisonment is imposed on the First
Respondent, but wholly suspended for a period of two (2) years
on
condition:
(a)
The First Respondent pays the costs of the 2006 application within a
period of twelve (12) months from the date of this order;
and
(b)
The First Respondent is not found guilty of contempt of Court within
the period of suspension.
3.
The Second Respondent is found not guilty of the charge of contempt
and is accordingly discharged;
4.
The First Respondent is ordered to pay the costs of this application.
MOTHLE
AJ
22
September 2009