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REPUBLIC OF SOUTH AFRICA
, I
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 11248/2024
REPORTAB LE: Y~O
OF INTEREST TO THE JUDGES : Y687NO
REVIS ED . "
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DATE ./>.".':".... SIGNA TURE ...
In the matter between:
THE SPORTS TARVEN APPLICANT
And
TIANJIM LIN FIRST RESPONDEN 'T
SHENGZHE ZHUANG SECOND RESPONDENT
CHEUNG KONG HOLDINGS THIRD RESPONDENT
THE CITY OF POLOKWANE MUNICIPALITY FOURTH RESPONDENT
MOOLMAN GROUP FIFTH RESPONDENT THE
STATION COMMANDER AT POLOKWANE
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POLICE STATION SIXTH RESPONDENT
JUDGEMENT- APPLICATION FOR CONTEMPT OF COURT
MASHAMBAAJ
INTRODUCTION
[1] On the 15th October 2024, the Applicants made an urgent rule nisi application before the
above honourable court and the following orders were granted by the learned Acting
Judge Pillay;
1. The rules regarding service and the time frames is dispensed with and this application
is heard on an urgent basis, in accordance with the provisions of the Rules 6(12) of
the Uniform Rules of the Court.
2. The rule nisi returnable on the 30 January 2025 is issued on which date the
Respondent will be called upon to show cause why the following Order should not be
made final order of the abovementioned honourable Court.
3. The first respondent, refrain from continuing to act unconscionably by harassing the
Applicant;
3.1 The first Respondent, refrain from detaching doors from the business premises
and further that the premises should be restored to the Applicant in its former state
within 24 hours of service of this order.
3.2 The first Respondent is compelled to provide the Applicant with the Municipal
invoices in order to make a determination of the pro rata payment due by the
Applicant or alternatively the Municipality give the Applicant access to the
Municipality invoices within the 30 days of receipt of this Order.
3.3 The first Respondent is compelled forthwith to refrain from denying the Applicant
from accessing water in the premises.
4. The cost of the application to be the cost in the cause.
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[2] The Respondents became aware of the court order on the 1 ath October 2024. The court
order was served to the 1 st, 2nd and 3rd Respondents ("the Respondents") on the 23rd
November 2024 by sheriff. On the 15th November 2024 the court order was served to the
Polokwane Municipality by sheriff.
BACKGROUND
[3] The urgent application for contempt of court was issued against the Respondents and set
down for hearing on the 22 October 2024. On the 1 ath October 2024, the Respondents
became aware of the Rule nisi application and court order which was not served to them
but to a wrong address. The Respondents received the rule nisi application and court
order from a friend but such was not properly served to them. On the 21st October 2024,
subsequent to the knowledge about the court order, the Respondents through his
attorneys, wrote a letter to the Applicant's attorneys, informing them that the rule nisi
application, court order and the application for contempt of court was served at a wrong
address, the Respondents pleaded that the matter should be removed from the urgent
roll. The Respondents undertook to comply with the court order by installing the broken
window and door glasses. The parties agreed that the matter should be removed from
the urgent roll on the 22 October 2024.
[4] The applicant alleged that the Respondent continued not to comply with the court order.
On the 31 st October 2024 the application for contempt was re-enrolled on the urgent court
and struck off the roll due to non-service. According to the Respondents, the doors and
glass was replaced in its original position on the 04th December 2024. The applicant
indicated that as a result of the continued non-compliance with the court order the
Applicant further re-enrolled the matter on the urgent roll on the 12 November 2024 and
the matter was further removed from the roll due to none appearance. The Respondents
indicated that the parties have agreed that the Applicant should remove the matter from
the roll on the 12th November 2024 but the Applicant did not appear in court. The matter
was enrolled again on the 03rd December 2024 and the matter was struck off the roll due
to none-compliance with the rules and practice directives of the court. Finally, the matter
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was re-enrolled again before this court to be heard on the 1 oth December 2024. This
matter has been on the urgent court roll several times and one will be curios of its urgency
but the court has a responsibility to see that issues are adjudicated to avoid it coming
back on the urgent court roll.
DISCUSSION AND COURT FINDINGS
[5] The Applicant argued that this matter is urgent since the Respondents have failed to
comply with the court order. Although the court was sceptical about the urgency in this
matter, considering several times the matter was removed and struck off the roll due to
non-appearance with the court uniform rules and practice directives. The court further
considered that for the interest of justice the merits of the application for contempt of court
should be entertained.
[6] The Applicant indicated that they opted to serve the court order by hand to the address
that to his knowledge was the address of the Respondent and could not use the service
by Sheriff because of lack of funds. The Applicant acknowledged that the court order was
served to the wrong address but it is not on dispute that they received it or became aware
of the court order as early as the 181h October 2024. The Applicant further indicated that
the Respondent partially complied with the court order by installing a broken window but
failed to do branding since the window which was broken was branded. The applicant
further indicated that the Respondents cut water and electricity.
[7] The Respondents indicated that from the date of the receipt of the court order they took
a reasonable step to repair the doors and window glasses. The Applicant contention that
the Respondent did not comply with the court order is unjustified because they installed
the broken windows and door glasses but they could not install the branding as required
by their liquor distributors. The Respondent indicated that it was impossible to comply
with repairing windows and branding it to its required standard by the Applicant's
distributors and such was not mentioned in the court order and even if it was mentioned
but it would be impossible to do it within 24 hours in terms of the court order.
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[8] The Respondents disputes that they cut water and electricity and indicated that the
municipality bill is in arrears and the Municipality terminated their services which includes
cutting of water and electricity.
[9] The Applicant further indicated that the Respondents withheld the municipal bills or
statements which render it impossible to pay for municipality services. The court indicated
that on this point the order required that the municipality should comply with the court
order within 30 days from receipt of the court order by furnishing the municipal invoices
or statements of account to the Applicant. The court order was served to the municipality
on the 15th November 2014, the rule nisi court order was served to municipality by hand
and according to paragraph 3.2 of the rule nisi court order, the municipality has 30 days
to comply with the court order and 30 days will lapse on the 15th of December 2024, so
the Municipality is still under their rights to consider the court order. The Respondent
indicated that the Applicant never requested the municipal invoices or statements from
them and it is absurd for the Applicant to mentioned it at court. The court finds that the
Applicant did not ask for municipal invoices or bill from the Respondents and the Applicant
has an alternative remedy which is to request statements from the Municipality. The
Applicant indicated that the municipality denied with the access to the municipal invoices
as required by the court order but the court finds no proofs from these assertions but also
that 30 days within which to do so was not lapsed.
[1 O] It has been held by our Courts, in a long line of decisions, that contempt of Court is the
wilful and mala fide refusal to comply with an order issued by the Court. See Clement v
Clement 1961 (3) SA 861 (T) at 866A ; Consolidated Fish (Pty) Ltd v Zive and Others 1968
(2) SA 517 (C) at 523A; Noel Lancaster Sands (Edms) Bpk v Theron 1974 (3) SA 688 at
691A-D; Frankel Max Pollak Vinderine v Menell Jack Hyman Rosenberg 1996 (3) SA 355
(A) at 367H.
[11) In the case of Consolidated Fish (Pty) Ltd v Zive1 , its was stated that A deliberate
disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe
him-or herself entitled to act in the way claimed to constitute the contempt. In such a
case good faith avoids the infraction. In the case of Noel Lancaster Sands (Edms) Bpk v
1 1968 (2) SA 517 (C) 524D
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Theron2 per Botha J, stated that even a refusal to comply that is objectively unreasonable
may be bona tide (though unreasonableness could evidence lack of good faith).
[12] The court has deliberated with the Applicant's counsel who was eloquent 1n his
submissions in support of the Application for contempt against the Respondents but could
not furnish the court with proofs of his allegations. The Applicant contends that the
Respondents cut water and electricity but such was not found to be factual and the
Respondents disputed such issue and submitted that the cut of water and electricity was
done by the Municipality as a result of arrears due and unpaid.
[13] The Respondent submitted that they have complied with the court order and that was the
reason the parties agreed that the matter should be removed from the roll on the 12th
November 2024 and the Respondent complied but the dispute arouse where the
Applicant demanded the Responde nts to reconnect water and electricity which they have
no power to do so since the account is in arrears. The Respondents also indicated that
the issues that the Applicant contends that it should be complied with are not precisely
stated in the court order, therefore, the Applicant interpreted the court order in diverse
which is in contrast with how the Respondents comprehend. This court finds that the court
order did not specifically orders the Respondents to re-connect electricity and water and
the court order did not order the Respondents to install the branding on the window as
required by distributors and deman ding such to be done is unreasonable. This court finds
that the issues raised by the Applicant are not precisely mentioned in the court order and
the Respondents should not be found to be in contempt.
[14] The court finds that the Applicant failed to prove beyond reasonable doubt that the
Respondents is in wilful and mala tide refusal to comply with an order issued by the court.
The court does not see deliberate failure by the Respondent to comply with the court
order. The Applicant raised many issues against the Respondents but failed to provide
proofs in order to prove his case.
2 1974 (3) SA 688 (T) 692E-G
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COST
[15] The general rule is that the cost follows the successful party and this court will not deviate
from the general rule. The court noted that the Respondents has to use their scarce
resources in order to oppose this urgent application and it will be fair to award cost in their
favour.
ORDER
[16] In the result, I make the following orders;
1. The application for contempt of court order is dismissed with cost in party and party
scale, counsel fee to be at scale B.
APPEARANCES
MASHAMBAAJ
JUDGE OF THE HIGH COURT, POLOKWANE;
LIMPOPO DIVISION
FOR THE APPLICANT: ADV N TSHIGIDIMISA
INSTRUCTED BY: MALWELA G ATTORNEYS
Email: gmalwela@24gmail.com / tshigindangi@gmail.com
INSTRUCTED BY: ARSHAD CHA YY A ATTORNEYS
EMAIL: arshad@chayyaattorneys.co.za
DATE OF HEARING: 10th December 2024
DATE OF JUDGEMENT: 13th December 2024