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[2008] ZAWCHC 211
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Slinger v George Taxi Association and Others (164262007) [2008] ZAWCHC 211 (26 May 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
16426/2007
DATE
: 26
MAY 2008
In
the matter between:
LOUIS
PATRICK SLINGER
Applicant
and
THE
GEORGE TAXI ASSOCIATION
1
st
Respondent
KENNETH
CLEMENT PETERSEN
2
nd
Respondent
MOSES
JOHANNES WILDERMANS PLUS
ONE
OTHER 3
rd
Respondent
JUDGMENT
DAVIS,
J
This
is an application whereby applicant seeks to have respondents
declared in contempt of this Court. This long running saga
began
with an order granted by
Ndita,
J
on 7 February 2007 in which,
inter
alia,
the
second and third respondents were ordered to provide applicant with
first respondent's financial statements, whether audited
or not, for
the previous three years within 30 days of the granting of the order
togethef with the minutes of meetings held in
the name of first
respondent from 18 December 2004 to the date of the order. A further
order was granted by
Traverse
DJP
on 4 September 2007 in which again respondents were ordered to
comply with the
Ndita
r
J
order of 7 February 2007.
Needless
to say little appeared to be done in that there had only been
partial compliance with these orders. The matter was then
heard by
the Court on 14 December 2007. On that date a further order was
made, in terms of which the respondents were ordered
to provide the
applicant with the minutes of all the meetings held and conducted in
the name of first respondent from 18 December
2004 to date and all
of first respondent's financial statements, whether audited or not,
for the period between 28 February 2006
to 7 February 2007.
Once
again it was alleged by applicant that there was only partial
compliance with this order. Pursuant to these allegations of
noncompliance, applicant has brought on the application to hold
the respondents in contempt of court.
There
have been numerous hearings and further discussions in chambers
pursuant to this dispute, almost all of which represented
an attempt
by this Court to settle this dispute without the necessity of a
hearing regarding contempt proceedings. However, applicant
has
continued to persist in his contentions that respondents have failed
to comply with the orders to which I have made reference
and, in
particular, the order of this Court of 14 December 2007. It has
therefore become necessary for this Court to decide this
matter and
to bring it to a measure of finality.
There
are two sets of arguments which have raged between the parties, one
dealing with the minutes to which I have made reference
and the
other dealing with the question of the financial statements. I shall
deal first with the minutes.
Mr
Zazeraz
,
who appeared on behalf of the applicant, made much of correspondence
which had been generated by the erstwhile attorney acting
on behalf
of the respondents, in particular of 17 January 2007 when the
attorney, Mr Geduld, wrote to the applicant's attorneys
and said;
"We
have once again consulted with our client and we are of the opinion
this matter should be settled between the parties
to curtail costs.
Our
client
proposes the following All minutes of
meetings
on any event available for perusal."
Mr
Zazeraz
contended that respondents have been unable to explain this
statement by their attorney, who acted for them at that time.
Accordingly,
an inference must be drawn in favour of a conclusion
that the minutes were available and that respondents have
steadfastly refused
to make them accessible to applicant, court
orders notwithstanding. Mr
Zazeraz
fortified his argument by reference to an explanation proffered by
respondents, namely that the association, being first respondent,
suffered the theft of its computer on 17 November 2005 and that all
the minutes which were on the hard drive of the computer
are no
longer available to the respondents to make accessible to applicant.
Mr
Zazeraz
focused
on a variety of different explanations proffered by respondents with
regard to the theft of the computer. In the first
place respondents
had contended that there had been a housebreaking during which the
computer had been stolen; secondly the computer
had been destroyed
and for this reason there was no manner of accessing the data stored
on the computer. Furthermore he submitted
that there was no evidence
the respondents had stirred themselves to deal with the alleged
housebreaking. In addition, the complaint
which had been lodged with
the South African Police Services, dealing with this matter, had
emanated from applicant. There was
no indication in the report
lodged with the police that a computer had been stolen.
Turning
to the question of the financial statements, respondents' defence
was in essence that throughout 2006 first respondent
had been
involved in very little economic activity, obviating the need for
accounts to be prepared. No bank statements were available
because
any cash that was received from members by the association was kept
by the association's treasurer.
In
Mr
Zazeraz's
view, this explanation stands to be rejected. To the extent that
there was no proof from the bank to support respondent's version,
Mr
Zazeraz
submitted that, as there had been bank accounts prior to 2006, the
very (east that respondent could have done was to have provided
this
Court with a letter or affidavit from the bank to indicate that no
bank account existed in the name of first respondent
for the period
in question.
Mr
Tsegarie
,
who appeared on behalf of the respondent, submitted that there was
sufficient correspondence generated by the respondents to
indicate
that they had made every effort to obtain an affidavit from Mr
Geduld explaining the statement contained in his letter
of 17
January 2007. At the hearing, Mr
Tsegarie
handed up to this Court a letter from the Cape Law Society, dated 13
May 2008
r
which made it clear that enquiries had been made to the Law Society
as to Mr Geduld's refusal to depose to an affidavit on behalf
of
applicant.
He
conceded that, during the period under which the first respondent
was under the control of second and third
respondents
the only minute of an executive meeting which had been provided to
applicants was that of 24 September 2007. He submitted
that the
failure to provide minutes from November 2006 and for the calendar
year 2007 was attributable to ambiguity in the order
which had been
granted, in that the very nature of the dispute was focused on
events that had taken place prior to the election
of the present
office bearer of first respondent; hence there was only a dispute
regarding documents generated prior to 2007.
To the extent that
there was non compliance with this aspect of the order
r
it was attributable to ambiguity rather than any wilful misconduct.
In
Fakie
N.O. v CCII Assistance (Ptv) Ltd
2006(4) SA 326 (SCA) the Supreme Court of Appeal provided a most
instructive judgment which guides the courts of this country
in
dealing with the question of a civil contempt order. In the first
place, the Court confirmed that, for civil contempt proceedings,
the
applicant had to prove the existence of the order, service thereof
and non-compliance. Respondent bore an evidentiary burden
in
relation to wilful and
mala
fide
conduct.
Ultimately the Court must decide, beyond a reasonable doubt, that
the respondent has been wilful and
male
fide]
failure
by respondent to advance evidence that established a reasonable
doubt as to whether any compliance has been wilful and
male
fide
will
justify a finding of contempt (para 42).
Cameron.
JA
examined conflicting affidavits in dealing with the question as to
whether, in that dispute, there had been contempt on the part
of the
appellant which justified the conclusion that the appellant had
acted in a wilful and
mate
fide
manner.
He concluded;
"On
the accepted test for fact finding in motion proceedings it is
impossible to reject the Auditor General's version as
fictitious or
as clearly uncreditworty. There is a real possibility that if the
Court heard oral evidence on the factual disputes
between the
parties it might accept the Auditor General's version or at least
found that there was reasonable doubt as to whether
the delay in
complying with the order of
Hartzenbero,
J
were wilful and
male
fide."
(para
64)
The
present dispute also has to be decided on the papers, without the
benefit of oral evidence. In my view
r
it cannot be said that the absence of minutes as at November 2006
constitutes wilful and
male
fide
conduct
on the part of the respondents. I cannot discount the version that
they have put up, in that I am not persuaded by Mr
Zazeraz's
creative attempt regarding a variety of versions relating to the
computer and the theft thereof to find against respondents.
True,
there is some difference in the versions based upon the computer
being destroyed and then having been stolen. It is clear
that a
housebreaking took place. Some attempt to steal from the premises
occurred. It cannot, on these papers, be concluded that
no theft of
a computer took place. It certainly cannot be concluded that failure
to produce minutes that might have been lost
amounts to wilful and
male
fide
conduct.
The fact that attempts were made to procure an explanation from Mr
Geduld only adds to that justification.
I
am also prepared to accept that there may have been some ambiguity
with regard to the order insofar as minutes of 2007 are concerned
although for reasons that will become apparent presently I am not
prepared to leave the matter there.
Turning
to the financial statements I consider that there has been a blatant
disregard of the Court orders, to the extent that
the least one
could have expected from the respondents, after the sheer weight of
demand and litigation was that it, to provide
evidence from the
applicable bank that there had been no bank statements for the
period under review. To the extent, given all
the opportunity that I
had given to the parties to settle this matter, that evidence was
the least that could have been expected
form respondents to show
that no financial activity took place in 2006 Simply to continue to
insist that no activity took place
when applicant has provided at
least some existence of members subscriptions having been paid is an
act in contempt of three
court orders granted and during which
period the Courts have shown extraordinary patience in seeking to
ensure compliance therewith.
The
question arises as to an appropriate order under these
circumstances. On the basis of what I have already said there has
been an attempt, or at least a plausible version at explaining why
substantial compliance with the order have been undertaken.
To
impose a harsh sanction on the breaches would be disproportional to
the misconduct.
For
these reasons the following order is made:
The
FIRST,
SECOND AND THIRD RESPONDENTS ARE FOUND TO BE IN CONTEMPT OF THE
ORDER OF COURT OF 14 DECEMBER 2007
.
A
FINE OF R500 (FIVE HUNDRED RAND) WILL BE IMPOSED
on the three respondents individually, suspended on condition that
the respondents produce;
a.
An
explanation from the applicable banking institution of first
respondent at to whether any banking accounts were opened or
operated during the period of 2006;
b.
The
complete minutes of all meetings which were held, or in terms of
which the Association is constitutionally bound to convene
such
meetings for the period November 2006 to December 2007. In the event
that no such minutes can be made available, a proper
and full
explanation on affidavit must be provided.
c.
The
respondents have six weeks from the date of this order to so comply.
3.
The financial and organisational state of first respondent is
hereby referred to the Provincial Registrar of Taxis Association
who is instructed to produce a report within three months of this
court order and to provide such report to this Court, which
will
then determine any further course of conduct which may be
applicable to the dispute.
There
is no order as to costs, save for today's hearing, being 26 May
2008 in which respondents jointly and severally, each
to pay the
other to be absorbed, are ordered to pay applicant's costs.
DAVIS,
J