Citibank N.A v Van Zyl and Another (3805/2004) [2004] ZAFSHC 131 (9 December 2004)

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[2004] ZAFSHC 131
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Citibank N.A v Van Zyl and Another (3805/2004) [2004] ZAFSHC 131 (9 December 2004)

IN THE SUPREME
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 3805/2004
In
the matter between:
CITIBANK
N.A.
Applicant
and
OCKERT
PETRUS VAN ZYL N.O.
First
Respondent
JACOBUS
JOHANNES VAN ZYL N.O.
Second Respondent
HEARD ON:
25
NOVEMBER 2004
JUDGMENT:
VAN
DER MERWE J
DELIVERED ON:
9
DECEMBER 2004
[1] These are civil
proceedings for contempt of court based on alleged failure or
refusal by respondents to comply with orders of
the magistrate’s
court, Bloemfontein.
[2] During September and
October 2002 the applicant and C.I.T.I. Trust No. IT1268/02 (“the
trust”) entered into 45 separate
instalment sale agreements in
respect of 45 trucks, truck tractors, trailers and motor vehicles.
It is admitted by respondents
that the applicant is the owner of all
but one of these 45 vehicles. Applicants allege that the trust
breached each of the aforesaid
instalment sale agreements by
failing to punctually pay the monthly instalments in terms thereof.
The applicant says that on
9 September 2004 the total
indebtedness of the trust in respect of the instalment sale
agreements amounted to
R10 346 282,36 and that at that date the
trust was in arrears with payment of monthly instalments in the
amount of R1 002 073,92.
As a result, so applicant states, it
cancelled each of the instalment sale agreements as it was entitled
to do. These averments
are denied by respondents.
[3] It is common cause
however that the applicant issued summons out of the magistrate’s
court for the district of Bloemfontein
in which is claimed
inter
alia
the confirmation of the termination of each of the aforesaid
instalment sale agreements, consequent return of the vehicles owned
by the applicant, damages to be proved and ancillary relief. The
action is defended by respondents. In terms of clause 10 of
each
of the instalment sale agreements the applicant approached the
magistrate’s court for the district of Bloemfontein on an
urgent
basis and ex parte for an interim attachment order in respect of all
the vehicles in question. Such order was granted on
28 September
2004. In terms of the order of 28 September 2004 a
rule
nisi
operating as interim order and with return date 28 October 2004 was
issued calling upon the respondents to show cause why an order
of
attachment and safekeeping in respect of the vehicles pending the
applicant’s action for return of the vehicles, should not
be made.
In terms of the order the return date thereof could be anticipated
by the respondents upon giving 12 hours notice to
the applicant.
[4] On 30 September 2004
the deputy sheriff of Bloemfontein served the order as well as the
application papers on both first respondent
and second respondent at
the principal place of business of the trust. According to the
return of service of the deputy sheriff,
he was informed by both
first respondent and second respondent that all the vehicles were
outside of the jurisdiction of the deputy
sheriff as they all were
utilized countrywide at the time. The deputy sheriff therefore was
unable to attach or remove any of
the vehicles. Both respondents
however undertook to immediately see thereto that the vehicles be
brought within the area of jurisdiction
of the deputy sheriff for
purposes of attachment. This, also according to the return of
service, was never done.
[5] On 4 October 2004 the
respondents filed a notice in terms of which the return date of the
rule
nisi
dated 28 September 2004 was anticipated. As a result, on the
morning of 5 October 2004, the attorney of the applicant instructed
the deputy sheriff not to proceed with the execution of the order
pending the outcome of the hearing on the anticipated return
date.
This hearing took place on 5 October 2004. Judgment was reserved.
Judgment confirming the rule
nisi
was handed down on 14 October 2004. On the same day, a notice of
appeal in terms of which it is purported to note an appeal against
the judgment of 14 October 2004, was filed on behalf of the trust.
[6] On the morning of 15
October 2004, the deputy sheriff again attended the place of
business of the trust. There he met only
the first respondent. The
deputy sheriff enquired from the first respondent in respect of the
whereabouts of the vehicles and
also informed him that he had been
instructed to lay criminal charges if the vehicles are not made
available for attachment immediately.
The first respondent then
telephoned his attorney who subsequently himself spoke to the
deputy sheriff. The deputy sheriff was
informed, apparently on the
strength of the notice of appeal, that the vehicles would not be
made available for attachment and
that the applicant is welcome to
lay such criminal charges. According to the return of service of
the deputy sheriff, he went
by the place of business of the trust
everyday thereafter until 19 October 2004 at13H00 and on all these
occasions none of the
vehicles were at the premises of the trust.
It is common cause that none of the vehicles were made available
for attachment to
date and none were attached.
[7] First respondent’s
only complaint in respect of the abovementioned matters mentioned
in the return of service is that it
constitutes hearsay evidence.
This complaint is devoid of any merit in view of the provisions of
section 17
of the
Magistrates’ Courts Act, No. 32 of 1944
which
section provides that the return shall be
prima
facie
evidence of the matters therein stated.
[8] The
application in this Court was brought on an urgent basis whereafter
it was postponed by agreement to 25 November 2004.
It was not
disputed that the application was properly brought as a matter of
urgency.
[9] It is convenient to
deal at the outset with the position of the second respondent.
Second respondent was cited in the application
in the magistrate’s
court solely in the capacity of trustee of the trust, as was first
respondent. It is clear therefore that
the application was brought
and the orders in the magistrate’s court granted against the
trust, naturally represented by its
trustees. In the answering
affidavits it is stated that although second respondent previously
was a trustee of the trust, since
8 July 2002 first respondent was
and still is the sole trustee of the trust. This is confirmed by
the letter of authority issued
in terms of the provisions of the
Trust Property Control Act, No. 57 of 1988 by the Master of this
Court on 8 July 2002. This
document forms part of the annexures to
the founding affidavit. It is stated by first respondent that when
the instalment sale
agreements were entered into, he was mistakenly
under the impression that the second respondent was still a trustee
of the trust.
The evidence in the replying affidavit in respect of
the alleged participation of second respondent in the affairs of the
trust
is vague in the extreme. In any event the applicant cannot be
allowed to make a case against second respondent in reply. It
follows that in the circumstances the orders of the magistrate
cannot be regarded as orders granted against second respondent.

Also, accepting that second respondent also gave an undertaking to
the deputy sheriff to assist in making the vehicles available,
it
has not, in my judgment, been shown by the applicant that second
respondent caused the trust to disobey the orders against the
trust.
[10] It is clear from
what is stated above that the orders in question were granted
against the first respondent, being the sole
trustee of the trust
and that first respondent was served with the orders and/or informed
of the grant thereof. It is also clear
that first respondent did
not in any way comply with any of the orders. Nevertheless, the
committal of first respondent for contempt
of court was resisted, on
three main grounds. Counsel for first respondent submitted in the
first place that this Court has no
jurisdiction to entertain
proceedings for committal for contempt of court in respect of orders
made by another court, such as the
magistrate’s court. In the
second place it was contended that the notice of appeal filed on 14
October 2004, suspended the order
of confirmation of the rule
nisi
and that therefore, thereafter no order was in operation and
consequently no order could be disobeyed. In the third place, in
the alternative, it was submitted that disobedience of the orders
by first respondent was not wilful or
mala
fide. I deal with these contentions in turn below.
[11] In support of the
argument that this Court has no jurisdiction to make an order of
committal of a respondent to prison for
civil contempt in respect
of the order of another court, counsel for first respondent relied
on the decision in
WRIGHT
v ST MARY’S HOSPITAL, MELMOTH AND
ANOTHER
1993 (2) SA 226
(D & C)
.
In this judgment, Magid J held that the High Court has no
jurisdiction to make an order for committal to prison for contempt
of court in respect of disobedience of an order of the then
industrial court. Magid J also held that the industrial court
itself
had the power to do so. In
FOOD
AND ALLIED WORKERS
UNION
v SANRIO FRUITS CC AND OTHERS
1994 (2) SA 486
(T)
,
De
Klerk J disagreed with the finding that the industrial court had the
power to entertain proceedings for committal for contempt
of court
in respect of failure to comply with its orders. He however held
that he considered this finding in the
WRIGHT
-case
to be an
obiter
dictum
but that for the reasons given in the
WRIGHT
-case,
the High Court had no jurisdiction to make orders for committal for
contempt of Court in respect of failure to comply with
an order of
the industrial court. In
FOOD
AND ALLIED WORKERS
UNIONS
v SCANDIA DELICATESSEN CC AND ANOTHER
1999 (3) SA 731
(D & C)
Page J found it unnecessary to decide the issue of the power of the
industrial court to commit for civil contempt of court and
found
that for the reasons stated in the
WRIGHT
-case
and the
SANRIO
FRUITS
-case
the High Court had no jurisdiction to issue a committal order for
contempt of an order of the industrial court. In an unreported
judgment of this Division subsequently brought to my attention by
the applicant’s attorney of record with the consent of his
colleague for respondents, namely the case of
PIEK
v AMSTRONG
AND
ANOTHER
,
Appliation
No.: 800/2000, Malherbe J, as he then was, declined to follow the
conclusion in the
WRIGHT
-case
in respect of an order of the magistrate’s court. However, I
consider the matter to have now been settled by the judgment
of
the Constitutional Court in the matter of
BANNATYNE
v BANNATYNE (COMMISSION
FOR
GENDER EQUALITY, AS
AMICUS
CURIAE
)
[2002] ZACC 31
;
2003 (2) SA 363
(CC)
.
[12] The
BANNATYNE
-case
dealt with contempt of court consisting of failure to comply with an
order for payment of maintenance made by a maintenance
court. A
maintenance order is of course regarded as an order
ad
factum praestandum
.
My understanding of this judgment is that the High Court, as an
incident of its ordinary jurisdiction, has a discretion to enforce
the judgment of another court by civil proceedings for committal for
contempt of court. The
High Court will exercise this
discretion when it is warranted by what was referred to as good and
sufficient circumstances. What
constitutes good and sufficient
circumstances in any particular case will to a large extent, but to
my mind not exclusively, depend
on whether or not effective
alternative remedies are available to protect the right in question.
In my judgment therefore, the
first submission on behalf of first
respondent stated above, must fail.
[13] When the rule
nisi
was confirmed on 14 October 2004, the initial order of 28 September
2004 had served its purpose. There is no doubt however, in
my view,
that the confirmation order of 14 October 2004 is an interlocutory
order. This order expressly serves as an
interim
or
pendente
lite
attachment order pending the outcome of the action instituted by
the applicant for the return of the vehicles. Such order is
not
appealable. See Jones & Buckle,
The
Civil
Practice
of the Magistrate’s Courts in South Africa,
9
th
Edition, Vol. 1,
page
350. Counsel for first respondent, as I understood him, did not
seriously dispute that the order in question is not appealable
but
argued that filing of the notice of appeal nevertheless had the
effect of suspension of the order of 14 October 2004. This
argument is unacceptable. It is correct that in terms of the common
law a judgment or order of a magistrate’s court is automatically
suspended by a noting of an appeal against that judgment or order.
This rule however, in my judgment, pre-supposes a valid notice
of
appeal or appeal. See by analogy the decisions of
MODDER
EAST
SQUATTERS
AND ANOTHER v
MODDERKLIP
BOERDERY (PTY) LTD
[2004] 3 ALL SA 169
(SCA) para. [46]
and
ABSA
BANK LIMITED v OLIVIA
PROPERTIES
1999
(4) SA 554
(W)
in
respect of High Court Rule 49(11). As the order in question is not
appealable, there is no valid notice of appeal and no valid
appeal
and therefore the order of 14 October 2004 was not suspended.
[14] The third contention
referred to above requires a consideration of the applicable onus
and standard of proof. In the pre-constitutionional
era it was
settled law that in civil proceedings for committal to prison for
contempt of court an applicant has to show on a balance
of
probabilities that an order was granted against the respondent, that
the respondent was either served with or properly informed
of the
grant of the order against him and that the respondent either
disobeyed the order or neglected to comply with it. Once
these
matters are shown, the onus is on the respondent to show that his
disobedience was not wilful for
mala
fide
.
This is an onus proper and not a mere evidential presumption;
therefore it must be satisfied by the respondent on a balance
of
probabilities. See for instance
NOEL
LANCASTER SANDS (EDMS) BPK v THERON EN
ANDERE
1974 (3) SA 688
(T) at 691 and
CULVERWELL
v
BEIRA
1992 (4) SA 490
(W) at 493 E. These principles were confirmed by
the Appellate Division in
PUTCO
LTD
v
TV
& RADIO GUARANTEE CO (PTY) LTD
1985
(4) SA 809
(A) at 836 D – E.
[15] In
UNCEDO
TAXI SERVICE ASSOCIATION v MANINJWA
AND
OTHERS
1998 (3) SA 417
(EC)
Pickering J reconsidered these principles in the light of the
Constitution of the Republic of South Africa, Act No. 108 of 1996.

He concluded that the practice of bringing summary proceedings by
way of notice of motion in respect of civil contempt of court
is not
unconstitutional. However it was held that it is unconstitutional
to deprive a person of his/her liberty for contempt of
court on
proof merely on a balance of probabilities and that it is
unconstitutional to place an
onus
upon the offender. It was therefore concluded that in motion
proceedings in respect of contempt of court the guilt of the
offender
must be proved beyond reasonable doubt. In a further
decision emanating from the Eastern Cape,
UNCEDO
TAXI SERVICE ASSOCIATION v MTWA AND
OTHERS
1999 (2) SA 495
(EC)
,
this judgment was followed. It was also held in accordance with
general principles applicable to proof beyond reasonable doubt,
that when it was shown that an order was granted against the
respondent, that the respondent was served with the order or
informed
thereof and that the respondent disobeyed the order or
neglected to comply therewith, that would generally constitute
prima
facie
proof of wilfulness and
mala
fides
on
the part of the respondent. Such
prima
facie
proof places an evidentiary burden (“weerleggingslas”) on the
respondent to disturb the
prima
facie
case. If the evidence of the respondent raises a reasonable doubt
as to wilfulness or
mala
fides
,
the respondent must be found not guilty. If however for whatever
reason the
prima
facie
case in this regard is not disturbed, the respondent may be
convicted.
[16] I respectfully agree
with these decisions. To my mind it is of vital importance for the
proper administration of justice that
the remedy of civil
proceedings in respect of contempt of court remains available.
However, in my view the decisive factor is
that a respondent
committed for civil contempt of court is punished because he or she
had been convicted of the crime of contempt
of court. This is clear
from
inter
alia
the judgment in the case of
S
v BEYERS
1968 (3) SA 70
(A) at 80
.
In terms of the provisions of section 35(3)(h) of the Constitution
a person may only be convicted upon proof beyond reasonable
doubt.
It is in conflict with section 35(3)(h) of the Constitution to
convict a person upon a mere balance of probabilities and
to place
a so-called reverse
onus
on that person. In my view it is also not reasonable and
justifiable to limit the rights of the offender in terms of section
36
of the Constitution. It does not matter, in my judgment, whether
the proceedings that led to conviction for contempt of court
were
instituted by the State or by a private citizen. This is in my view
inter
alia
Illustrated by the fact that in a private prosecution in terms of
section 7
of the
Criminal Procedure Act, No. 51 of 1977
, the
onus
and standard of proof do not differ from those applicable to a
prosecution by the State. Contempt of court is in the first place
the business of the courts. And the courts have wide powers to
obtain further evidence if required by considerations of justice.

It follows that I respectfully disagree with the contrary conclusion
reached in
LAUBSCHER
v LAUBSCHER
2004 (4)
SA 350
(T)
.
[17] It must therefore be
decided on the facts whether it is established beyond reasonable
doubt that the first respondent is guilty
of contempt of court in
respect of any of the aforesaid orders of the magistrate’s court.
For this purpose the period from the
morning of 5 October 2004,
when the attorney for the applicant instructed the deputy sheriff
not to proceed with the execution
of the order of 28 September 2004
pending judgment on the application in respect of the hearing on the
anticipated return date,
until 14 October 2004, when the said
judgment was delivered, will be excluded from consideration. In
respect of the non- compliance
with the order between 30 September
2004 and 4 October 2004 the starting point is that the first
respondent undertook to make the
vehicles available to the deputy
sheriff for attachment. In his answering affidavit first
respondent dealt with his failure to
comply with the order during
the period in question virtually in one sentence, simply saying that
during that period all the vehicles
were out of town. No
explanation whatsoever was given as to why none of the vehicles
returned to the place of business of the
trust or as to why of the
drivers of the vehicles could not be contacted to so return. The
evidence of the first respondent in
this regard is so cryptic and
seriously unconvincing that it cannot in my judgment be regarded as
reasonably possibly true. Regarding
the period since 14 October
2004 consideration must be given to the fact that the notice of
appeal was delivered on that date and
whether that fact raises a
reasonable doubt in respect of whether the disobedience of the
order was wilful and
mala
fide
.
The difficulty here however is that the first respondent simply
nowhere stated or said that he at the time had been advised
by his
attorney that the notice of appeal suspended the order of 14 October
2004 and that therefore first respondent was not obliged
to comply
and that he believed such advice to be correct. The stereotyped
expression in the answering affidavit, nl. “Ek is
geadviseer …”,
does not assist the first respondent in this regard. For all I
know, on the evidence of the first respondent
his attitude at the
time may have been that he does not care what his attorney does but
he will not comply with the order. There
are in fact several
indications from the conduct of the first respondent and the tenor
of his answering affidavit that the first
respondent had no
intention to comply with the order. This includes the fact that
apparently from 15 October 2004 to 19 October
2004 none of the
vehicles attended the premises of the trust. In these
circumstances I do not believe that I should speculate
in respect
of something that the first respondent could easily have said. In
my judgment therefore, it is established beyond
reasonable doubt
that the first respondent is guilty of contempt of court in respect
of both the orders of 28 September 2004 and
14 October 2004.
[18] What remains to
consider is whether I should nevertheless in the exercise of my
discretion refuse to deal with the first respondent.
The
magistrate’s court, being a creature of statute, has no power to
entertain civil proceedings for contempt of court. It
is correct
that in terms of
section 106
of the
Magistrate’s Court’s Act,
No. 32 of 1944
first respondent may be prosecuted for the criminal
offence created by that section. In the founding affidavit it is
stated that
for the applicant to lay criminal charges against first
respondent will not provide an effective remedy as it will probably
take
a very long time for criminal proceedings to be finalized.
This is not disputed by first respondent and accords with general

experience. This is also illustrated by the attitude displayed by
the attorney for first respondent to the deputy sheriff in respect
of criminal charges. In the meantime however, the trust will
continue to use the vehicles in direct contravention of a court
order
and thereby continually decrease the value thereof and expose
the vehicles to risk. In terms of the instalment sale agreements
the
trust consented to the jurisdiction of the magistrate’s court. I
am satisfied that there are good and sufficient circumstances
in
this case warranting the exercise of my discretion in favour of the
applicant.
[19] In its notice of
motion the applicant also moved for orders that the orders of the
magistrate’s court be declared orders
of a competent court and
that this Court order the respondents to comply with the order of
the magistrate’s court. In my judgment
it is not necessary or
proper to make such orders.
[20] The following orders
are made:
First respondent is
convicted of contempt of court in respect of the orders granted by
the magistrate’s court of Bloemfontein
on 26 September 2004 and 14
October 2004 under case no. 34346/2004.
First respondent is
committed to prison for a period of 60 days, which order of
committal is suspended for a period of 1 year or
until finalization
of the action instituted by the applicant against the C.I.T.I. Trust
in the magistrate’s court of Bloemfontein,
whichever happens
first, on condition that the first respondent complies with the
aforesaid order of 14 October 2004 within 10
days of date of this
judgment.
First respondent is
ordered to pay the applicant’s costs.
The application against
second respondent is dismissed with costs.
_________________________
C.H.G.
VAN DER MERWE, J
On behalf of
Applicant: Advocate A Mooij
Instructed
by
Rosendorff
Reitz Barry
BLOEMFONTEIN
On behalf of
Respondents: Advocate HJ Benade
Instructed
by
Goodrick &
Franklin
BLOEMFONTEIN
/ec