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2024
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[2024] ZAMPMBHC 12
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Mohamed v Thair and Another (A30/2020; 37/2019) [2024] ZAMPMBHC 12 (12 February 2024)
HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
Case No.: A30/2020
A Quo Case No.:
37/2019
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE:
15 February 2024
SIGNATURE
In
the matter between:
ZAMIRA
MOHAMED
APPLICANT
and
AMOD
MOHAMMED
THAIR
FIRST RESPONDENT
CITY OF
MBOMBELA
SECOND
RESPONDENT
JUDGMENT
BHENGU
AJ
[1]
The applicant is seeking a contempt order against the first
respondent for his failure to
comply with the judgment and order of
the full court of this division dated 07 October 2022. The First
respondent is opposing the
application. The second respondent is
cited herein as an interested party in the proceedings. No relief is
sought against it.
Background facts
[2]
The dispute that gave rise to the contempt proceedings stemmed from
an agreement of sale
of an undivided share of Portion 57 of the Farm
Karino, 134 JU (the property) situated within the jurisdiction of the
second respondent.
in terms of the agreement of sale, the first
respondent was the seller of the property and the applicant’s
deceased husband
was the purchaser of the property. The property is
still zoned as agricultural land. The applicant is unable to take
transfer of
the land because the property is not yet rezoned, and her
portion is not yet excised from the parent property. There is an
ongoing
litigation between the parties relating to the sale agreement
itself and the improvements erected by the applicant on the property
without approval from the first and second respondent.
[3]
I will not deal with the issues raised in the appeal save to say that
both parties were
partially successful. In the judgment of Roelofse
AJ, the following orders found in paragraph 49(b)(i), (ii) and (iii)
form the
basis of these contempt proceedings:-
(i)
The first respondent is directed to do all things necessary
to
finalize the change in land use and subdivision of portion 57 of the
Farm Karino 134 JT;
(ii)
Pending the final approval of building plans for construction on the
yet to be created Portion 2 of the Farm Karino, 134 JT (Portion 2),
the appellant is interdicted from continuing with any construction
works on Portion 2;
(iii)
The appellant is ordered to finalize the
approval of the building plans within 180 (One Hundred and Eighty)
days of this order failing
which the appellant is hereby directed to
demolish all structures she has constructed on Portion 2 within 10
(Ten) days of the
expiry of the 180 – day period.
[4]
It is important to note that paragraph 49(b)(i)
of the court order imposed an obligation to the first respondent to
do all things
necessary to finalize the change in the land use and
subdivision of the property. Paragraph 49(b)(ii) and (iii)
interdicted the
applicant from continuing with any construction on
the property and to finalise the approval of the building plans
within 180 days
of the order failing which she was ordered to
demolish all the structures that she had constructed on the property.
Applicant’s case
[5]
In her founding affidavit, the applicant alleges that despite having
been granted a further
180 days extension by this court to comply
with the order, she is however, unable to comply with the order.
According to the applicant,
she submitted an application for approval
of the building plans to the municipality and paid the necessary
fees. Her application
was however rejected by the municipality as it
did not contain an approved SG Diagram for the subdivision of the
property.
[6]
It is common cause that in order for the applicant to obtain approval
of the building plans,
the first respondent had to first apply for
the rezoning of the property and obtain the approved SG Diagram for
the subdivision.
The applicant avers that her attorneys of record
directed correspondence to the first respondent’s attorneys
reminding the
respondent of his obligations in terms of the court
order and requesting him to comply. In a letter dated 27 January
2023, the
respondent’s attorneys responded as follows:-
“…
Furthermore, our client has decided not to
subdivide the property at this stage and accordingly, they do not
intend finalising the
application in this regard”.
[7]
It is this stance of the first respondent that prompted the applicant
to approach this court
for relief. The applicant avers that she
approaches the court with clean hands because she has done all things
possible to comply
with the court order, but she cannot discharge her
obligations in terms of the order until the first respondent complies
with his
obligations first.
[8]
The applicant seeks an order declaring that the first respondent is
in contempt of the court
order; that he be ordered to comply with
paragraph 49(b)(i) of the order within (30) days after service of the
order and that a
Warrant of arrest is to be issued committing
the first respondent to imprisonment for a period of 6 months in the
event that
the first respondent fails to comply with the order.
[9]
The applicant is also seeking an order extending the time period
referred to in paragraph
49(b)(iii) by 30 days after compliance by
the first respondent and costs on a punitive scale.
Respondent’s case
[10] In
resisting the application for contempt, the first respondent denies
that he is in wilful contempt. In
his answering affidavit he attacks
the validity of the order of the appeal court. According to the first
respondent, the order
is unenforceable,
contra bonos mores
and
was not made in the interest of justice because it is coercing him to
give up a portion of his property to an illegal occupier.
In
paragraph 4.1 of his affidavit, he states that “
I have no
intention and will not give my consent to the applicant to build on
the property, thus any extension of time will meet
with the same
difficulty”
.
[11]
There are many other grounds argued by the first respondent
relating to why he believes the order is
wrong and unconstitutional,
however, same will not be repeated as this court is not sitting as an
appeal court. The first respondent
stated that he intended to appeal
the order but could not do so because of lack of funds. Counsel for
the first respondent confirmed
that he has received formal
instructions to appeal the order and that he is busy preparing appeal
papers.
The Law
[12]
It is trite
that an applicant who seeks a contempt of court order must satisfy
the court that an order was granted against the alleged
contemnor,
that he has knowledge of the order, that he has failed to comply with
the order and that the non-compliance have been
wilful or
mala
fide.
(Fakie
NO v CCII Systems (Pty) Ltd)
[1]
.
In this
judgment, the court held further that:- “
But
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and mala fides: should the respondent fail to advance
evidence that establishes a reasonable doubt as to
whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
[2]
Analysis
[13] It
is clear from the facts of the case that the applicant has satisfied
the test for contempt. It is common
cause that the order was granted
by this Court on 07 October 2022. The order was served on the first
respondent and the first respondent
confirms noncompliance with the
order. The question for determination by this court is whether the
first respondent has succeeded
in rebutting the presumption that his
non-compliance was wilful and mala fide.
[14] In
order for the court to make a determination on this issue, the court
has to consider the explanation given
by the first respondent for his
failure to comply with the order. In his answering affidavit, the
first respondent launched
a scathing attack on the judgment. To
illustrate this point, paragraph 4.1 and 9.1 of his answering
affidavit reads as follows:-
“
I have no
intention and will not give my consent to the applicant to build on
the property, thus any extension of time will meet
with the same
difficulty”.
(para 4.1)
“
The applicant
refers to her rights that are at stake. She does so armed with
nothing other than what is humbly referred to by me
as being an
unenforceable order.”
(para 9.1)
[15]
It is clear
from the above paragraphs that the first respondent never had any
intention to comply with the order. Our Courts frown
upon such
recalcitrant attitude displayed by the first respondent. In the
matter of the
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture Corruption and Fraud in the Public Sector including
Organs of
State v Zuma
[3]
,
the Constitutional Court remarked that “
If
the impression were to be created that court orders are not binding,
or can be flouted with impunity, the future of the judiciary,
and the
rule of law, would indeed be bleak”. The court further held
that all orders of court, whether correctly or incorrectly
granted,
have to be obeyed unless they are properly set aside.
[16]
The order under attack by the first respondent was granted on 07
October 2022. It has since been over one
year from the date that the
order was issued, and the respondent has not taken any steps to
appeal the order. The rules of court
provide processes to be
undertaken by any litigant who is aggrieved by a court order to
contest the order, whether by way of an
appeal or review. Todate
there is no such application to appeal the order. The first
respondent avers that he intended to appeal
the order but was unable
to do so due to lack of funds. Counsel for the first respondent
submitted that he has since been placed
in funds and is under
instructions to proceed with the application for leave to appeal. It
is important to note that the
first respondent has always had legal
representation after the order was granted. Even the letter dated 27
January 2023 advising
the applicant that he does not wish to proceed
with application for subdivision was drafted by his attorneys of
record. I therefore
do not find merit to this argument. I find that
his conduct is wilful, mala fide and justifies an order for contempt.
[17]
Regarding sanction, counsel for the first respondent argued that
imprisonment will infringe the respondent’s
rights protected by
the constitution. He submitted that if the Court finds that the
respondent is in contempt, the Court should
order that the contempt
order should be suspended pending the application for leave to appeal
to be launched by the first respondent.
While I agree that a sanction
of imprisonment itself infringes upon the respondent’s
constitutional rights to liberty, however
as the Court held in in
Fakie N.O. at para 42 that “civil contempt procedure is a
valuable and important mechanism for securing
compliance with court
orders and survives constitutional scrutiny in the form of a motion
court application adapted to constitutional
requirements”.
[18]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd
[4]
,
the Court held that:-
“
the relief in
civil contempt proceedings can take a variety of forms other than
criminal sanctions, such as declaratory orders,
mandamuses, and
structural interdicts. All of these remedies play an important part
in the enforcement of court orders in civil
contempt proceedings.
Their objective is to compel parties to comply with a court order. In
some instances, the disregard of a
court order may justify committal,
as a sanction for past non-compliance.”
[19] I
have considered all the other alternatives to committal; however, I
could not find any other suitable sanction.
It appears that a
declarator or imposition of a fine will not yield any positive result
because the first respondent has already
declared his intention not
to comply with the court order despite knowing the possibility of
committal into prison as a result
thereof. His statement that the
order is “unenforceable” without taking any further step
to appeal the judgment, shows
just how much disregard he has of the
rule of law, a conduct that cannot be condoned.
Costs
[20]
Taking into consideration the fact that the applicant had to approach
this court to enforce compliance with
a court order which was issued
more than a year ago, I am satisfied that costs should be awarded in
favour of the applicant on
a punitive scale as between attorney and
client to show the courts displeasure at the conduct of the first
respondent.
[21] In
the result, it is ordered that: -
1.
The first respondent is found to be in contempt paragraph 49(b)(i) of
the Court
Order issued by Roelofse AJ dated 07 October 2022.
2.
That a warrant of arrest be issued committing the first respondent to
imprisonment
for a period of 30 days for his non-compliance with the
order of this Court.
3.
That the whole sentence is suspended on condition that that the first
respondent
complies with paragraph 49(b)(i) of the Court order dated
22 October 2022 within 90 (ninety) days of this order.
4.
That the first respondent is ordered to pay the applicant’s
costs on an
Attorney and Client Scale.
5.
That the time period referred to in paragraph 49(b)(iii) of the Court
Order dated
7 October 2022 is extended for a further 30 (thirty) days
from the date of compliance by the first respondent.
JL
BHENGU AJ
JUDGE
OF HIGH COURT
For the applicant:
Adv K Van Heerden
briefed by Swanepoel & Partners Inc
For the respondent:
Adv JJ Venter
briefed by WDT Attorneys
Date of Judgment:
12 February 2024
[1]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 42(c)
[2]
Para
42 (d)
[3]
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture Corruption and Fraud in the Public Sector including
Organs of State v Zuma
[2021] ZACC 18
;
2021 (5) SA 327
(CC);
2021
(9) BCLR 992
(CC) (State Capture) at para 87.
[4]
Matjhabeng Local Municipality v Eskom Holdings Limited and Others;
Mkhonto and Others v Compensation Solutions (Pty) Limited
2018 (1)
SA 1
(CC) para 54