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[2008] ZAWCHC 75
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Thunder Cats Investments 49 (Pty) Ltd and Others v Fenton and Others (9958/06) [2008] ZAWCHC 75; 2009 (4) SA 138 (C) (12 December 2008)
IN THE HIGH COURT OF
SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
Case
No.: 9958/06
In
the matter between:
“REPORTABLE”
THUNDER
CATS INVESTMENTS 49 (PTY) LTD First Applicant
IZAK
DANIEL PETRUS VISSER Second Applicant
JACQUES
BRINK THERON Third Applicant
and
EDMOND
MICHAEL FENTON First Respondent
STRAND BEACH HOTEL (PTY)
LTD Second Respondent
EMOR TRADING NO 14 CC t/a ITT
CONNECT Third Respondent
THOMAS ALTMAN Fourth Respondent
JUDGMENT
DELIVERED ON 12 DECEMBER 2008
LE
GRANGE, J:
[1] This
is an extended return day of a rule
nisi
granted by Yekiso J. The
Applicants seek an order to confirm the rule as the Respondents
contravened paragraphs 1.1, 1.3, 1.4 and
2 of an Order of this Court
dated 16 February 2007 and are as such guilty of contempt of Court.
The Applicants are also seeking
a costs order against the First and
Second Respondents’ Counsel, as the principal issues in the
counter-application have
been determined by other Courts, including
the Supreme Court of Appeal and Constitutional Court.
[2] First
and Second Respondents opposed the application and filed a
counter-application and an amended counter-application. First
Respondent, who is a member of Second Respondent, finds himself
abroad in France. It appears that First Respondent, leaving the
country, constituted a breach of certain bail conditions in a matter
where he is arraigned on several counts of fraud and theft,
and
pursuant thereto, a warrant for his arrest was issued.
[3] Third
Respondent is eMor Trading, a close corporation and trading as
iTTConnect, who does business as an Internet service provider.
[4] The
Fourth Respondent is Thomas Altman, the sole member of Third
Respondent, who is cited in his capacity as member of Third
Respondent and in his personal capacity.
[5] Third
and Fourth Respondents did not file any papers, but in an e-mail to
Applicants’ attorney stated that they did not
deem their
conduct contemptuous of this Court’s order.
[6] The
issues for determination in this matter are firstly, whether the
counter-application as amended is irregular, too late,
vexatious and
an abuse of the process of this Court and secondly, whether the
Respondents are in contempt of an order of this Court.
[7] On
16 February 2007 Desai J, granted an order which states the
following:-
“
1. The
respondents are interdicted and restrained from alleging to third
parties other than persons in authority who have a legitimate
interest therein:
1.1 That
applicants obtained the Court order granted by this Court under case
number 5516/2005 by fraud.
1.2 That
the applicants are dishonest.
1.3 That
the applicants are unlawfully conducting the hotel business known as
Ocean View Hotel at 17 Beach Road, Strand.
1.4 That
the respondents, or a concern in which they have an interest, are
lawfully conducting a business which provides restaurant,
breakfast,
bar, room service, conference or reception facilities or any other
business save that of a letting agent of sectional
title units at 17
Beach Road, Strand. In particular that:
1.4.1 they
are able to conduct a restaurant and/or conference and/or bar
business and/or they are able to provide such facilities
at that
place.
1.4.2 through
the use of photographic or other visual materials to advertise their
business at 17 Beach Road, Strand, together with
the words, “hotel”,
“hotel business”, “conference”, “conference
business”, “restaurant”,
“restaurant
business”, “breakfast”, “bed and breakfast”,
“hotel service”, “room
service” or any
combination of the aforegoing in a manner which conveys the
impression that respondents are able to supply
any of the aforesaid
services at the said premises.
1.4.3 to
advertise by way of photographic or other visual material and in the
process display the contents of section 1 of the premises,
in
particular the restaurant, reception and conference areas thereof.
1.4.4 by
making available to the public respondents’ telephone and fax
numbers and/or email addresses and/or any other contact
address as
being the contact numbers of the hotel, conference and restaurant
businesses being conducted as 17 Beach Road, Strand.
2. That
the respondents are interdicted from accepting bookings or deposits
in respect of the supply of conference, restaurant and
bar facilities
provided by the Ocean View Hotel at 17 Beach Road Strand.
3. It
is declared that the respondents are guilty of contempt of court in
that they breached the rule
nisi
issued by this Court under the abovenamed case number dated 20
September 2006 by:
3.1 representing
that they are conducting hotel, conference, restaurant, breakfast,
reception, bar and room service facilities at
17 Beach Road, Strand.
3.2 placing
bookings in respect of
inter
alia
the delivery of such services.
3.3 accepting
deposits in respect thereof.
4. The
counter-application is dismissed.
5. Respondents
are ordered, jointly and severally, to pay the costs of this
application and the costs of the application for contempt
of court
and counter-application.”
[8] Pursuant
to this order, the Respondents were granted leave to appeal to the
Supreme Court of Appeal. On 28 March 2007 Desai
J, ordered that the
Court order dated 16 February 2007 be enforced pending the outcome of
the appeal to the Supreme Court of Appeal.
This order by Desai J, was
also attacked by the Respondents.
[9] First
and Second Respondents’ counter-application was framed as
follows:
“
(a) that
the interim relief granted by his Lordship Mr. Justice Yekiso on 11
July 2007 be set aside;
(b) that
the further relief set out in Applicants’ notice of motion
dated 11 July 2007 be refused;
(c) that
the interlocutory order granted in terms of rule 49 (11) by his
Lordship Mr. Justice Desai under the above case number
on 28 March
2007 be set aside with costs on the attorney and client scale;
(d) that
Applicants are interdicted from unlawfully interfering with the
conduct by First and Second Respondents of Second Respondent’s
hotel business, by any of the following acts –
(i) interfering
with guests booked and/or placed in hotel units/rooms at 17 Beach
Road, Strand (“the premises”) by Second
Respondent,
including by demanding of them, and/or suggesting to them, that they
should pay any representative of First Applicant
for such
accommodation or for alternative accommodation offered to them in the
premises by First Applicant, other than for any
services other than
room accommodation actually supplied to any such guest by First
Applicant in terms of any arrangement made
with First Applicant by
such guest, by the unit holder of the relevant room/unit, or by
Second Respondent;
(ii) disseminating
false information about Respondents to First Respondents’
guests and/or suppliers and/or clients and/or
business contacts
and/or any other third parties with whom/which Respondents may wish
to do business in connection with Second
Respondent’s hotel
business, such false information to include, but not be limited to
conveying or implying to any of such
parties any of the following:
(aa) that
Second Respondent sold its hotel business to Applicants or any
entities controlled by any of them;
(bb) that
Second Respondent no longer does business at 17 Beach Road, Strand;
(cc) that
Strand Beach Hotel at 17 Beach Road no longer exists;
(dd) that
First Respondent has been fired;
(ee) that
Respondents or either of them cannot book guests into the premises;
(ff) that
either of Respondents’ website is false;
(gg) that
Respondents or either of them have issued or will issue fake booking
confirmations;
(hh) that
Respondents or either of them has, or would in the future, “set”
anyone “up” and/or is dishonest;
(ii) that
Respondents or either of them have made a “victim” of any
prospective hotel guest;
(jj) that
Respondents or either of them have been or would ever be guilty of
“hotel booking scams”
(e) that
Applicants are interdicted from accepting deposits and/or bookings
and/or payments for accommodation and/or providing accommodation
in
respect of any rooms/units booked by Second Respondent;
(f) that
Applicants are interdicted from holding First Applicant out to be
Second Respondent for the purposes of obtaining payment
of any moneys
at all, including but not limited to obtaining payment of moneys due
to Second Respondent and/or for the purposes
of in any way diverting
and/or attempting to divert to any of the Applicants or any of their
agents, servants or representatives,
deposits, accommodation payments
and/or any other moneys due to Second Respondent;
(g) that
Applicants are interdicted from holding First Applicant out to be
Second Respondent by flighting, either directly of through
any third
party, and/or allowing or encouraging any internet website or web
link whose web address and/or web information contains
the words
“Strand Beach Hotel” or any words calculated to cause
confusion in the public mind and/or create the impression
that any
business conducted or associated with First Applicant is linked in
any way in the course of trade with First Respondent’s
Strand
Beach Hotel business;
(h) that
Applicants are interdicted from making use of any of Strand’s
intellectual property, including but not limited to
the photographs
and other material uplifted from Strand’s current website and
incorporated into Thunder’s current website;
(i) that
Applicants are interdicted from selling Unit 1 of the premises
(whether separately form or together with Unit 3 of the
premises or
any other unit) upon terms that do not disclose to the purchaser(s)
that First Respondent claims to be entitled to
be restored to
possession of Unit 1 thereof pursuant to its rights under the
provisions of the lease referred to in the evidence
in Cape High
Court Case No 5516/05, unless First Respondent’s consent is
first obtained in writing to a relaxation of this
interdict upon such
terms as First Respondent may agree with Second and Third Applicants
on behalf of the seller;
(j) that
the said Unit 1 shall be sold together with its hotel operating
contents, save that such sale shall expressly exclude all
items that
are the subject matter of Respondents’ spoliation claims under
Cape High Court Case No 6722/06 and all items that
may have been left
upon the premises that are not the property of the seller but owned
by either of Respondents and/or any other
entity in which Second
Respondent has an interest, unless Respondents’ content in
writing is first obtained for a relaxation
of this interdict upon
such terms as Respondents may agree with Second and Third Applicants
on behalf of the seller;
(k) that
in the event of the said Unit 1 being sold together with Unit 3 (or
any other unit), separate prices shall be stipulated
for the
respective units, and the price so set for Unit 1 and its said
included contents shall not be less than the fair market
value of
Unit 1 together with the movables to be included with the sale (“the
Unit 1 selling price”);
(l) that
in the event of the said Unit 1 being sold alone, the price set for
Unit 1 and its said included contents shall similarly
not be less
than the fair market value of Unit 1 together with the movables to be
included with the sale;
(m) that
Second and Third Applicants shall be obliged to notify Second
Respondent by email at
Edmond@strandbeach.co.za
of the proposed Unit 1 selling price in sufficient time for the
purposes of the next subparagraph of this order;
(n) that
in the event that Second Respondent, within 72 hours of such emailed
notification, disputes that the Unit 1 selling price
reflects a fair
market value, any such sale shall be subjected to confirmation by the
Cape High Court;
(o) that
any such notification by Second Respondent shall be furnished by
email addressed to Applicants’ attorney of record,
Riaan Nabal
at
Riaan@visservennote.co.za
;
(p) that
in the event of a sale of Unit 1 taking place, transfer of the
property into the name of the purchaser(s) shall be attended
to by a
firm of attorneys to be nominated by the chairperson for the time
being of the Law Society of the Cape in consultation
with the
Registrar;
(q) that
the full proceeds of such sale shall be paid into an interest bearing
trust account opened by the said firm in the name
of the Registrar
and held there, unless otherwise agreed between the parties in
writing, pending a further order by the Cape High
Court in the light
of the final outcome of pending Case No 6756 in that court, or on
appeal to any higher court form any decision
in that matter until the
matter has finally been determined;
(r) that
Applicants are directed to publish, within 72 hours of the granting
of this order, in the Cape Times and The Star newspapers
respectively, under the respective headings “HEARTBREAK HOTEL:
RETRACTION AND APOLOGY” and “HOTEL SCAMIFORNIA:
RETRACTION AND APOLOGY” (such headings to be in a font of less
than the fonts of the headings to annexure JBT4 to Applicants’
founding affidavit and annexure B to Respondents’ Statement of
Case respectively) a retraction and apology for the false
and
misleading statements published of and concerning Respondents in the
said annexure, such retraction and apology to cover all
to the false
and misleading statements dealt with in Respondents’ Statement
of Case and to be upon terms to be settled between
counsel for the
respective parties or, failing such agreement, by the court;
(s) that
Applicants are directed to publish, within 72 hours of being
furnished with confirmation of any relevant publication by
email by
the relevant editor, a similar retraction and apology (appropriately
headed and fonted,
mutatis
mutandis
)
in any other South African newspaper in which a full or abridged
version of the article comprising the said annexures may have
been,
or may yet be published;
(t) that
Applicants are directed to publish the full text of the said
retraction and apology (as agreed or directed by the court)
upon
their
www.oceanviewhotel.co.za
website and/or any other website operated and/or controlled by them
in connection with the Ocean View Hotel business currently
conducted
by them;
(u) that
such website publication(s) shall be accessed directly from the main
home page of such website by way of a link “button”
featured as prominently as all other main links on such home page,
and bearing the words “Strand Beach Hotel: Retraction
and
Apology”;
or
granting further and/or alternative relief.
”
[10] First
and Second Respondents also sought to amend their Notice of
Opposition and Counter-application. Applicants did not oppose
the
amendment in principle. The amendment is framed as follows:-
“
by
the insertion immediately after paragraphs (c) thereof of a paragraph
(c) bis reading as follows -
‘
that
it be declared that all judgments and order obtained by Applicants in
their favour in Cape High Court Case Numbers 5516/05;
12830/05; and
Constitutional Court Case No CCT34.06 were obtained by fraud and are
accordingly null and void’;
by
the insertion, immediately after paragraphs (u) thereof of a
paragraph (v) reading as follows –
‘
that
Applicants are interdicted form executing upon any costs orders they
may have had taxed pursuant to any orders made in any
of the matters
referred to in paragraph (c) bis above;’
and
by the insertion immediately after the new paragraph (v) thereof of a
paragraph (w) reading as follows –
‘
that
CONSOLIDATED AUTIONIEERS AND PROPERTY EXECUTORS CC (“Consolidated”),
represented by its members, Second and Third
Applicants, is joined as
a respondent for the purposes of the relief sought by First and
Second Respondents (as applicants) in
paragraph (c) bis and paragraph
(i) to (q) above, and that references to the applicants or any of
them in the said paragraphs shall
be deemed to include a reference
to, and to bind, Consolidated for the purposes of this order.
’
”
[11] The
Applicants’ main complaint, as recorded in the founding
affidavit of Jacques Brink Theron, the Third Applicant, is
that
despite the Respondents’ compliance for a few months with the
Court order of 16 February 2007, an article in a leading
local
newspaper exposed the Respondents’ unlawful and willful breach
of the said order of Court. The Respondents, according
to Third
Applicant, has again advertised the Applicants’ hotel business
at 17 Beach Road, Strand and accepted a deposit from
a customer.
Moreover, First Respondent repeated the allegation that the Court
order granted by Griesel J, in case number 5516/2005
was obtained by
fraud.
[12] The
Applicants contend that the Respondents’ counter-application is
irregular, too late, vexatious and constitute an
abuse of the Court’s
process as the averment of fraudulent conduct on behalf of the
Applicants were repeatedly made before
Courts of this Division and
the higher Courts, which was dismissed. The Applicants also filed a
notice in terms of Rule 47(1) and
demanded that the Respondents
furnish security in respect of their counter-claim, before being
permitted to prosecute their counter-claim.
The application for
security, in respect of the counter-claim, was also attacked by the
Respondents.
[13] The
papers in this matter are voluminous. First and Second Respondents’
opposing papers were framed in a “Statement
of Case” and
consisted of more than 250 pages excluding the annexures thereto. The
amended counter-application were also
more than 80 pages excluding
the annexures attached to it. In addition, First and Second
Respondents have incorporated by reference
virtually all the papers
in previous proceedings between the parties, running into hundreds of
pages.
[14] There
is a history of litigation between the Applicants and the First two
Respondents. The history of litigation has its origin
in the matter
which was fully ventilated before Griesel J, who on 8 December 2005,
in this Division in case 5516/2005 held, that
the Applicants are
entitled to free and undisturbed possession of property, comprising
of units 1, 2 and 3, in a complex situated
at Strand Beach Hotel, 17
Beach Road, Strand. An application for leave to appeal against this
judgment was refused and thereafter
applications directed to the
Supreme Court of Appeal and the Constitutional Court for leave to
appeal against the judgment, were
refused which has the effect that
the judgment is final and binding on all parties.
[15] The
historical background between the Applicants, First and Second,
Respondents which resulted in the litany of litigation
between these
parties, are well documented in the judgments handed down by the
various Judges. I deem it not necessary to summarize
it for present
purposes.
[16] Mr
RS van Riet, SC, who appeared on behalf of the Applicants, argued
that the Respondents’ unwillingness to accept the
outcome of
the decision of Griesel J, including that of Desai J, dated 16
February 2007 and various other judgments of this Division,
underpins
First and Second Respondents’ attitude as reflected in their
Statement of Case and counter-application. Mr Van
Riet,
in
limine,
contented that
First and Second Respondents’ counter-application, including
the application for the setting aside of the
rule 49(11) order of
Desai J, should be dismissed with an appropriate costs order as it is
irregular, too late, vexatious and constitutes
an abuse of the
process of this Court. According to him the counter-application
should also not be entertained until the Respondents
purged their
contempt of Court. He also argued that the principal issues raised in
the counter-application have been determined
by other Courts,
including the Supreme Court of Appeal and the Constitutional Court.
Moreover, according to him the Respondents
are willfully in flagrant
breach of an order of this Court and accordingly are guilty of
contempt of Court. He requested that the
rule
nisi
be made final and that First and Second Respondents’ counsel
jointly be held liable for the costs incurred in these proceedings
as
it is evident he is the driving force behind these proceedings.
[17] Mr
P Hazell, SC who according to himself, had permission from the Cape
Bar Counsel to appear
pro
amico
on behalf of the
First and Second Respondents and without an instructed attorney,
argued at length that the Applicant’s contention
in
limine
is without merit.
He contended that when the First and Second Respondents reconstituted
its website, together with its former photographic
and other material
referred to in the founding affidavit by Third Respondent, the entire
contents of the site was accompanied and
appropriately qualified by
Strand’s disclaimer and as a result is not contemptuous of the
said order of Court.
[18] The
principal arguments by Mr Hazell, briefly stated, are that the
judgment of Griesel J, of 8 December 2005, is untenable
and bad in
law. Furthermore, the various orders of the Courts flowing from this
judgment have been obtained by the fraudulent and
mischievous conduct
of the Applicants. Moreover, the various Judges dealing with the
matters thereafter, including the Judges of
the Supreme Court of
Appeal and Constitutional Court did not apply their minds properly or
acted in a manner that is questionable.
He accordingly requested that
the relief sought by the First and Second Respondents in the
counter-application as amended, be granted.
[19] The
thread than runs through the Statement of Case of First and Second
Respondents is that the Applicants obtained an order
from this Court
(Griesel, J) by fraud, and their actions are therefore justified on
the basis of truth and for the public benefit
available to them.
[20] The
alleged fraud as contended by First and Second Respondent, and
vociferously supported by Mr. Hazell, arises from the contention
that
the Applicants: “
had
lied regarding material aspect of their cause of action
”.
[21] Gleaning
from the judgment of Griesel J, it is evident that his finding was
based upon an interpretation of a written agreement
between the
parties. Griesel J, specifically disavowed any reliance on the
parties’ statements as to their subjective intentions.
The
judgment could therefore not possibly have been induced by any
fraudulent statement as the Court simply did not have regard
thereto.
[22] It
is not the first time, in this matter, that First and Second
Respondents, including Mr. Hazell on behalf of his clients,
raised
the issue of fraud and misconduct on the part of the Applicants. It
has been raised in papers before, in Courts of this
Division,
including the Supreme Court of Appeal and the Constitutional Court.
Having regard to the papers before me, it is overwhelmingly
evident
that what underpin the First two Respondents’ attitude,
including that of their counsel, is their reluctance and/or
unwillingness to accept the judgments, including that of the higher
Courts. Moreover, First and Second Respondents, with the support
of
their counsel, have persistently attacked the various Judges who
previously dealt with matters between the Applicants and themselves
of “mishandling” their case. The Judges are accused of
being biased and displaying an uneven hand. Others are accused
of
acting in a manner that is arbitrary, capricious, unreasonable,
inexplicable, absurd and incapable of rational explanation and
contrary to the tenets of natural justice. Some are also accused of
failing to applying their minds properly. The allegation has
also
been made, that there is a closure of judicial ranks. The following
is an excerpt of some of the many bold statements upon
which Mr
Hazell relied in his heads of argument.
“
34. Because
this application is about fraud, it is
essential
for the presiding judge to remain impervious to the facts that 1
judge (Griesel, J) has found that there was a sale of Strand’s
hotel business; that 2 more (Scott JA and Cachalia AJA) later
refused leave to appeal and that, later still, a panel of 9
Concourt judges unanimously also said “NO”.
35. No
judge or advocate worthy of his or her salt would
ever
reason,
‘Well, 12 judge’s all seem to have thought Griesel, J
was right,
ergo
he must surely have been spot on.’ This is not what legal
training teaches, let alone what the laws of logic dictate.
36. Moreover,
once the
thinking
mind actually confronts the clear and simple
contents
of the first sale agreement, even without considering the plethora
of other impenetrably sound points with which Respondents’
Concourt papers abound, any such mind can regrettably
only
be forced to wonder how much
careful
thinking
could possibly have been done by
any
of the judges among the twelve.
37…
38..
39..
40..
41. Despite
the binding obligation placed upon judges by the rule of law, as
now entrenched in the Constitution, to provide litigants
with
reasons
for their decisions, Judge Griesel offered not one single
supporting strut for his bizarre ‘view’ that 2 little
phrases that inter many movable alia covered Tirade’s
saucepans and such stuff were ‘wide enough’ to cover
the purported sale of an entire hotel, conference and restaurant
business, lock, stock and barrel – including the staff
and
all their problems, the uncounted stock, the unmentioned liquor
licence, the unmentioned lease, the unmentioned future
bookings,
all outstanding debts, all outstanding claims and the whole
unmentioned rigmarole of the of the convoluted accommodation
pool
agreement and its related agreements.
42. Wide
enough these mini-phrases indubitably were
not
.
43. Against
Griesel J’s total score of zero
reasons
for his ‘wide’ finding, Respondents came up with no
fewer than 10 as to why he was completely wrong! And that
was
just regarding
that
one point
.
In addition there were a host of other sound grounds of appeal,
including that other Major Mystery, the Completely Missing
Section
228 Resolution for Strand.
44. To
date hereof nobody in the whole wide world has yet come up with a
single reason to suggest that even
one
of Respondents’ host of arguments against the Griesel
finding can
rationally
be faulted
at
all
.
This wide world includes the said 12 Judges from Griesel, J up to
the Concourt 9; the 5 legal practitioners involved on
Visser’s
legal team; Judges Van Reenen and Desai; the bar council’s
very senior and experienced disciplinary,
committee comprising an
ex-chairman of the General Council of the Bar and an ex-chairman of
the Johannesburg Bar Council;
the 9 members of the Cape Bar
Council who ignored the law completely in order to find against
Hazell; and the 14 members of
the full bar council who refused to
budge when called upon to fix their colleagues’ foul-up, with
chapter and verse pertaining
to 2 binding constitutions, a simple
bar rule and a smorgasbord of neatly potted law.”
[23] In
argument, Mr Hazell again contended that he is not in contempt of
Court if he says that the Judges of the Supreme Court
of Appeal did
not apply their minds properly, as their decision to refuse his
clients’ application for leave to appeal was
absurd. Mr Hazell
also referred to the Constitutional Court’s ‘unseemly
haste’ decision to dismiss the application
for leave to appeal.
The contention that one of the Judges who participated in the
decision of the Constitutional Court, namely
Judge Yacoob, who is
blind and not in a position to study and carefully consider material
documents of the papers filed, surfaced
again in argument. This issue
was also raised on papers before Griesel, J. In his judgment in case
no 4246/06 dated 20
June 2006 at paragraph 22, the following
was held:-
“…
.
Strand Beach Hotel launched its application for leave to appeal to
the Constitutional Court. It maintained ‘that the merits
of
the grounds of appeal in the material placed before the SCA are so
patent that no judge, acting reasonably, could have exercised
the
relevant discretion conferred upon the SCA by refusing leave to
appeal’. The application was dated 15 May. The opposing
affidavit on behalf of Consolidated was filed with the Constitutional
Court on 26 May. On 1 June, with what Gersman described
as ‘unseemly
haste’, the Constitutional Court dismissed the application with
costs. One of the reasons for this startling
accusation is based on
her assertion that one of the judges who participated in the decision
of the Constitutional Court, namely
‘Judge Yacoob’ (sic)
is blind. She thereupon proceeds as follows:-
‘
The
haste with which the decision was reached becomes more disturbing
when regard is had to the fact that it appears to have been
in any
proper position to study and carefully consider 98 pages of the
material documents. The documents at pages 209 to 307 of
the file are
important, complex, inter-related documents. Some of them are both
mind-bogglingly convoluted and confusing as to
their intention and
effect until very carefully sifted through and considered with
extreme care….
…
In
this regard, counsel has been informed, so I understand, by both
Stander and the learned judge’s registrar that documents
are
sometimes read to Judge Yacoob by others. Applicants contend that a
perusal of pages 109 to 307 of the file should convince
the
Honourable Court that any such reading as might have occurred in the
interval between 25 May and 1 June 2006 is unlikely to
have placed
Judge Yacoob in a position properly to consider the relevant,
documents, let alone to analyze what some of the Respondent’s
more abstruse drafting was actually intended to achieve, let alone
what it in fact did achieve.’
As
for the merits of the Constitutional Court’s decision, namely
to dismiss the application with costs, Gersman concludeds
by stating
that ‘were there a higher court to apply to, Fenton and Strand
would apply to that court for leave to appeal against
the decision of
the Constitutional Court on precisely the same grounds as those upon
which their application to that court was
based.’
In
my view, the allegations quoted above are not only scurrilous; they
are contemptuous of the two highest courts in the country.”
[24] I am in agreement with this
conclusion of Griesel J.
[25] Every
citizen has the right to make fair comment, even robust comment, on
the conduct of Judges as matters of public interest,
provided that
the comment is made
bona
fide
, free of malice and
without sinister motives. In this regard, see
S
v Moila
2006 (1) SA 330
TPD at 347 A. In the present instance, it appears the only motive
for the vile attack on the Judges, is them making decisions
that do
not suit the Respondents and their Counsel. The attack on the
judiciary by First and Second Respondent supported by Mr
Hazell, has
been relentless and scurrilous. First and Second Respondents are
clearly in contempt of this Court. Another disturbing
feature of the
counter-application for the setting aside of this Court’s order
dated 28 March 2007, is the timing thereof
and the attack on Desai J,
of being biased. According to the papers filed, Desai, J informed the
Respondents and their counsel
timeously, at the start of the
proceedings, that he will recuse himself if Respondents bring such an
application. Despite the Respondents
and their counsel being fully
aware of the facts which now appears to be an issue, they did not
made such a request. The counter-application
was only launched on 19
August 2007, which is six weeks after the Applicants launched their
application in this matter. Moreover,
the whole of the prosecution of
the appeal, despite being granted on 21 February 2007, has not been
filed timeously as required
by the Supreme Court of Appeal rules and
accordingly been delayed for approximately 6 months. The attack by
the Respondents is
on an interim procedural ruling pending the
appeal. I am in agreement with the proposition by Mr. van Riet, that
all of this constitutes
vexatious conduct and should not be
tolerated. Moreover, the factual basis as set out by First and Second
Respondents in the Statement
Case, does not entitle them to any
relief. I am therefore satisfied that the points
in
limine
raised by Mr Van
Riet, is justifiable and that the counter-application as amended by
the First and Second Respondents is without
merit and should be
dismissed. The proposition that this Court should also not entertain
the counter-application until the Respondents
have purged their
contempt, is thus not without merit. In this regard see
Soller
v Soller
2001(1) SA 570 at
573. I deem it therefore unnecessary to consider the application
that First and Second Respondent should also
provide security in
terms of Rule 47(1) in respect of their counter-application.
[26] This
brings me to the rule
nisi.
It is not in dispute that the Respondents made use of a website
to advertised its business as stated in the newspaper article
dated 2
July 2007 and accepted bookings and deposits. It is also not in
dispute that a person from Johannesburg made a booking
and his
deposit monies were accepted by First Respondent. On the strength of
the information and pictures on the website, purporting
that First
and Second Respondent are conducting a hotel business at 17 Beach
Road, Strand the person and his family arrived
at the Applicants
hotel, only to be told there was no such booking. The Respondents
justify their action on the basis that the
website, together with its
photographic and other material, was accompanied by an appropriate
disclaimer.
[27]
The disclaimer at the bottom of the website is framed as follows:-
“
Disclaimer:
In relation to all pictorial content, Strand Beach Hotel [Pty] Ltd
in contradicting with individual independent unitholders
does in no
way hold itself to be the owner of any portion of the Penbay
Sectional Title Scheme or any other entity so depicted
for the
purposes of any reservations made for guests to be accommodated in
individual unitholders units. Strand Beach Hotel [Pty]
Ltd
undertakes to provide no service other than that which it contracts
specifically with its valued guests. –
Edmond
M. Fenton Managing Director Strand Beach Hotel [Pty] Ltd
P.O.
Box 490, Strand, 7150
Tel:
+2782 490 1641
Fax:
+2786 650 2415
Email:
Edmond@strandbeach.co.za
www.strandbeach.co.za”
[28] It
is obvious and for all to see, as depicted in the extracts of the
webpage as downloaded, that the pictorial content of the
webpage
where the disclaimer appears depicts the business of the Applicants.
The introduction of the disclaimer by the Respondents
cannot, in this
instance, justify their flagrant disregard of the court order dated
16 February 2007. Moreover, the wording of
the disclaimer does not
detracts from the fact that the Respondents are advertising a hotel
business at 17 Beach Road, Strand
which is in direct
contravention of this Court’s order and the Applicants are thus
entitled to the relief sought in the notice
of motion.
[29] Finally
with regard to costs, the Applicants seeks an order to hold First and
Second Respondents’ counsel jointly liable
for costs, insofar
as it relates to the counter-application proceedings.
[30] An
order to hold a litigant’s legal practitioner liable to pay the
costs of legal proceedings is an unusual and far-reaching.
Costs
orders of this nature are not easily entertained and will only be
considered in exceptional circumstances. See
Machumela
v Santam Insurance Company Ltd
1977 (1) SA 660
(A) and
Webb
and Others v Botha
1980
(3) 666 NPD at 673 B-E.
[31] In
the “Statement of Case”, the affidavits filed by
Respondents in case number 9958/06, has been incorporated by
reference. In those proceedings, Respondents’ affidavits in all
the earlier proceedings likewise have been incorporated.
Some of
these affidavits contain allegations of the most serious order,
against certain Judges, including Judges of the Supreme
Court of
Appeal and the Constitutional Court. The “Statement of Case”
also displays a complete disregard of the legal
and binding nature of
the Court judgments and orders and attack the validity and binding
effect of the very first judgment by Griesel,
J of December 2005 and
those that followed it in a contemptuous and scurrilous manner. Mr.
Hazell has openly declared on several
occasions that he is
responsible for the formulation of certain of the Respondents
affidavits and took full responsibility for
the allegations made
therein. Mr. Hazell was also found guilty by the Cape Bar Council for
his conduct relating to the matter,
where Griesel J, presided in.
[32] It
needs to be mentioned that Mr Hazell has subsequently resigned as
member of the Cape Bar Council. The approach adopted by
Mr Hazell in
this instance, is no different to matters that was previously
comprehensively rejected by other Courts. Mr. Hazell
has acted
pro
amico
, without the
instructions of an attorney, and there can be little doubt that the
parties are before this Court as a result of the
legal assistance and
support he has given to the Respondents. The mountain of paper
generated by Mr Hazell, in this matter was
significant. Unnecessary
costs were being incurred by the parties for no other reason than the
apparent obsessive unwillingness
by Mr Hazell and his clients to
accept the outcome of the decisions of the Courts of this Division,
including that of the higher
Courts. The First Respondent finds
himself currently in France and seemingly a fugitive of justice of
this Country. As an officer
of this Court one would have expected,
having regard to circumstances and history of this case and Mr
Hazell’s years of experience,
to have advised his clients
differently. Instead he persisted with the counter-application
knowing that certain of the relief sought
was comprehensively
rejected by the higher Courts.
[33] The
dictum of Gardiner JP, although it relates to attorney and client
costs, in
In
re
Alluvial Creek Ltd
1929
CPD 532
, is in my view apposite in this case. At 535 the learned
Judge held:”
…
There
are people who enter into litigation with the most upright purpose
and the most firm belief in the justice of their cause,
and yet whose
proceedings may be regarded as vexatious when they put the other side
to unnecessary trouble and expense which the
other side ought not to
bear.”
[34] Mr
Hazell’s conduct, including his clients, in these proceedings
has undoubtedly put the Applicants to unnecessary trouble
and expense
which is they ought not to bear. I am satisfied that it will not be
unjust and inappropriate to make a punitive costs
order against First
and Second Respondents including their Counsel with regard to the
counter-application as amended.
[35] In
the result, the following order is made:
1. Paragraphs
4.1 and 4.2 of the rule
nisi
granted by Yekiso J, on 2 July 2007 is hereby confirmed.
1.1) First
Respondent is sentenced to four (4) months imprisonment which
sentence is suspended on condition that the
First
Respondent appears before this Court within 30 days of date hereof
to show cause why he should not be committed
to prison with
immediate effect. Failing which, a warrant of arrest is
authorized for his immediate arrest for committal.
1.2) Second, Third and Fourth
Respondent are Fined R 10 000 each, which is wholly suspended for a
period of 3 years on condition
that they are not found guilty again
of contempt of Court of this Court’s order, case number
9958/2006 dated 16 February
2007, committed during the period of
suspension.
1.3) The
Respondents are ordered, jointly and severally, to pay the costs of
this application and the cost of the application for
the contempt of
court, the one paying the other to be absolved.
The
counter-application is dismissed. The First and Second Respondents
and Mr. Hazell, are ordered to pay the costs jointly and
severally
on an attorney and client scale, the one paying the other to be
absolved.
____________________________
LE
GRANGE, J
IN THE HIGH COURT OF
SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
Case
No.: 9958/06
In
the matter between:
“REPORTABLE”
THUNDER
CATS INVESTMENTS 49 (PTY) LTD First Applicant
IZAK
DANIEL PETRUS VISSER Second Applicant
JACQUES
BRINK THERON Third Applicant
and
EDMOND MICHAEL FENTON First
Respondent
STRAND BEACH HOTEL (PTY)
LTD Second Respondent
EMOR TRADING NO 14 CC t/a ITT
CONNECT Third Respondent
THOMAS ALTMAN Fourth Respondent
*****************************
Dates of hearing:
12 and 13 September 2007
18 October 2007
Date of Judgment:
12
December 2008
Adv. for Applicants:
Adv R.S Van Riet (SC)
Attorneys for Applicants:
Visser & Vennote
Mr PR Nabal
Adv. for Respondents:
Adv. P. St C. Hazell (SC)