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[2007] ZAFSHC 80
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Mangaung Local Municipality v James (4206/2006) [2007] ZAFSHC 80 (29 March 2007)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 4206/2006
In the matter of:
MANGAUNG LOCAL
MUNICIPALITY
Applicant
and
ISAAC COSMOS JAMES
Respondent
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
15 FEBRUARY 2007
_____________________________________________________
DELIVERED ON:
29 MARCH 2007
_____________________________________________________
[1] On
the 25
th
of May 2006 the applicant in these proceedings brought an urgent
application in this court against the respondent, a builder, to
interdict respondent from proceeding with building operations on erf
27921, Namibia, Mangaung. The order was granted and, in addition
the
respondent was ordered to demolish the structures already erected on
the said erf and remove all building materials, rubble and
any other
material brought onto the said erf by or on behalf of the respondent
within 14 days of the date of that order. The respondent
was also
prohibited from commencing any further building operations on his
property and ordered to pay the costs of that application.
[2] On
the 26
th
of October 2006 the applicant brought an application for an order
that the respondent be convicted of contempt of court for not
complying
with the order of the court dated the 25
th
of May 2006. In addition, the applicant requested the court to
order the respondent to pay the costs of the application on a
punitive
scale.
[3] When
this matter was placed before me on the 15
th
of February 2007 I was informed by Mr. Heymans that the matter was
not proceeding as a memorandum of agreement had been entered into
by
and between the applicant and the respondent, the exact terms of
which are not necessary for me to enumerate upon in this judgment.
It suffices to say that the principle issue relating to the
respondentâs building operations in contravention of building
bylaws
was resolved in terms of the agreement between the parties. I
was informed that the only issue remaining between the parties was
that relating to the costs of the application. Quite correctly Mr.
Heymans pointed out that the question of whether or not the
respondent
was going to be convicted of contempt of court was a
question of law to be decided upon by the court.
[4] On
a perusal of the applicantâs founding papers as well as the
photographs attached thereto there can be no question of the
fact
that the building by laws were in the process of being contravened.
The respondents put up an answering affidavit in which
he sought to
defend his conduct in persisting with building operations on the
basis that he had not received a copy of the court
order dated the
25
th
of May 2006 interdicting him from doing so. In reply the applicant
annexed the return of service dated the 8
th
of June 2006 from which it was quite clear that the sheriff for the
district of Bloemfontein-East had personally served a copy of
the
court order dated the 25
th
of May 2006 on the respondent. That being the case it was not
necessary for me to go into further disputes of fact and credibility
issues which were apparent from the papers.
[4] An applicant for an
order of committal must show:
(a) That an order was
granted against the respondent;
(b) That the respondent
was either served with an order or informed of a grant of the order
against him and can have no reasonable
ground for disbelieving that
information; and
(c) That
the respondent has either disobeyed the order or neglected to comply
with it.
All
these requisites have been satisfied in the case of the present
respondent on the facts of the case. In the circumstances there
can
be no question that the respondent is in fact guilty of civil
contempt of court. From the fact that the respondent has blatantly
lied under oath that he had not received service of the order of
court dated 25
th
May 2006 the inference must be drawn that the respondent was in
wilful and intentional disobedience of the order. His action in
ignoring the order of court was thus
mala
fide
and no questions of negligence arise.
[5] When
it comes to the question of the onus to be proved it was held that
once a failure to comply with the order has been established
wilfulness would be presumed. The onus would then rest on the party
who had failed to comply with the order to rebut the inference
of
wilfulness. Because the disobedience of a court order could
constitute the subject of both civil and criminal proceedings, two
different standards of proof would apply depending on the remedy
which the applicant happened to have chosen; in other words whether
the applicant chose to move the court by way of the laying of a
criminal charge or by way of notice of motion. It has been held
that
the summary procedure by way of notice of motion placed an onus upon
the alleged offender and required proof of guilt only upon
a balance
of probabilities. The constitutionality of the summary procedure by
way of notice of motion was discussed in the case
of
UNCEDO
TAXI SERVICE ASSOCIATION v MANIENJA AND OTHERS
1998 (1) Butterworths Constitutional Law Reports at 683 (E). The
court held that the summary procedure was a reasonable and
justifiable
measure.
[6] In
ignoring the order of court dated the 25
th
May 2006 the respondent was openly contemptuous of the court granting
the order. His actions were grossly disrespectful of the court
and
amounted to a serious undermining of the dignity and the integrity of
the court as well as a show of contempt for the rule of
law. Such
reprehensible conduct on the part of the litigant cannot be ignored.
The responded was duty bound to act within the law
and did not do so.
That is a sufficient reason to justify the imposition of the
punitive cost order sought by the applicants.
Added to this is the
fact that the respondent blatantly lied about the fact that he had
not received a copy of the court order and
so did not know that he
had been barred from continuing building operations on the said erf.
In the circumstances the order I make
is the following:
1. The
respondent is committed to undergo a sentence of three (3) months
imprisonment for failure to comply with the order of court
dated the
25
th
of May 2006 issued in case number 5124/2005. This sentence however
is wholly suspended for a period of three (3) years on condition
that
the respondent immediately ceases all building operations on erf
27921 Namibia and further demolishes the structures already
erected
on the said erf and removes all building material and rubble brought
onto the said erf by or on behalf of the respondent
within fourteen
(14) days, of the date of this order.
2. Respondent
is prohibited from starting any building operations on the said erf.
3. The respondent is
ordered to pay the costs of the application under case number 4206/06
on a scale as between attorney and client.
_____________
S. EBRAHIM, J
On
behalf of applicant: Adv. P. J. Heymans
Instructed
by
E
G Cooper Attorneys
BLOEMFONTEIN
On
behalf respondent: Adv.
Instructed
by:
BLOEMFONTEIN
/em