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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
Case No: 2025- 040411
In the matter between:
IRVIN PERUMAL Applicant
and
FDE DEBT COLLECTIONS First Respondent
JEROME JOOSTE Second Respondent
JUDGMENT
NOKO J
Introduction [1] The applicant instituted an urgent application for an order declaring the (1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: NO
6 May 2025
2
respondent s to be in contempt of Court for failing to implement an order granted by
Crutchfield J on 2 April 2025. Crutchfield J order ed the first respondent to return a
certain motor vehicle, to wit , BMW 3[…], with registration number J […] with VIN
number W […] (“vehicle”) . The respondents are opposing the application and have,
raised a point in limine of mis joinder in addition to delivery of the opposing affidavit.
Parties .
[2] The applicant is Irvin Perumal, an adult male resident at 3[…] E[…] Drive,
B[…], Randburg.
[3] The first respondent is FDE collections , a company (juristic person) carrying
business at 5[ …] S[…] Road, N […], Roodepoort.
[4] The second respondent is Jerome Jooste, an adult male employed at 5[ …]
Shannon Road, N […], Roodepoort.
Background
[5] On 2 April 2025 the applicant applied and obtained an order in the urgent
court for the return of the motor vehicle seized by the first respondent. T he first
responden t was represented at t he hearing by the second respondent. The first
respondent seized the vehicle on 25 March 2025 from the applicant with the
assistance of the member of SAPS and sheriff armed with the order of court granted
in favour Nedbank Ltd for the seizure and collection of the motor vehicle.
[6] The applicant had kept the vehicle with him after it was brought for the repairs
which were effected as at the time when the motor vehicle was seized by the first respondent.
Urgency
[7] The applicant avers that the first respondent was ordered to return the motor
vehicle on 4 April 2025. Further , that he communicated with the second respondent
3
via whatsapp who then undertook to attend to the matter on 7 April 2025. He
subsequently proceeded to issue the ur gent application on 1 0 April 2025 for the
contempt of court. In any event the court order is sacr osanct and need to be
complied with.
[8] The respondent s were aggrieved by the strictest time frames set out by the
applicant which w ere not in compliance with the rules and the court’s directives. The
respondent s contend that the application is not predicated on proper grounds
decreed where one intends to approach court on the basis of urgency. The urgency
is predicated on the contention that the vehicle is about to be auctioned but there is
no supporting evidence for such an allegation. Further that the applicant was made
aware that the vehicle is not with the first respondent and is with Nedbank Limited
(“Nedbank”) . The contact details of the attorneys acting for Nedbank were availed to
the applicant who was intrans igent and threatened to approach the court.
[9] If anything, the respondents argue that there i s no urgency proved by the
applicant and if same is found to exist the applicant created the urgency. The
application should therefore be struc k from the roll.
[10] I had regard to submissions and noted that the respondents have correctly
argued that the allegations by the applicant that there is pending auction is not substantiated by any evidence from by both applicants but find that in general terms contempt of court applications are urgent more particularly that the respect of the
court need to be preserved and protected. Non-compliance has the effect of
impairing the effective administration of justice.
1 I therefore find that the application
deserve audience of the urgent court.
Points in limine
[11] The respondent s raised several points in limine set out below.
Lack of service .
1 Matjhabeng Local Municipality v Eskom Holdings Ltd & Others 2018 (1) SA 1 CC.
4
[12] The respondent s contended that the applicant has failed to serve the order on
the respondent s and having regard to the nature of the relief sought it is imperative
that the order court should have been served. In the premise, the application must
be dismissed with costs at a punitive scale.
[13] In retort , the applicant submitted that the respondents were in court and made
undertaking to return the car. So, they are aware of the court order. In addition, the second respondent was reminded of the court order via whatsapp for which he
acknowledged receipts thereof and made an undertaking to comply therewith.
[14] I had regard to the submission by both parties and note i t is not the exclusive
requirement that the order should be served on a party for the purposes of the contempt application. Instead, it would be sufficient if it is proved that the
respondent s had knowledge of the court order. In this instance the first respondent
was represented at court and had the required knowledge which should be sufficient
for contempt of court application. In any event it is not disputed that the order was
relayed to the second respondent via whatsapp/email . In fact , the respondent s
stated in the answering affidavit that “The 1
st Respondent upon receive ( sic) of the
Order via WhatsApp informed the Bank of the Order. ” 2 I am satisfied that the first
respondent was made aware of the order of the court , and the point in limine is
dismissed.
Misjoi nder of the second respondent .
[15] The counsel for the respondent s contended that the relief sought against the
second respondent is not competent since the second respondent was not properly
joined as a party in the lis . In addition, the second respondent had at all times being
acting in his capacity as the general manager of the first respondent and not in his
2 See para 38 of the Respondents’ Answering Affidavit at CL 02 -73. The respondents disputed that
service by Whats app is not correct, and stated at para 68 that “Sending the Order via What sApp to
me is insufficient and not in compliance with service of a court order, particularly where contempt of
same would attract criminal sanctions”. CL02 -78.
5
personal capacity. That th e application must therefore be dismissed on this ground
alone with punitive costs order.
[16] The applicant , in retort, contended that the second respondent has always
been the party which was in the forefront of the matter on behalf of the first respondent. To this end, he must be the one t o be held in contempt. In any event the
order holding the first respondent in contempt may be ineffective as the company may not be committed to prison.
[17] It is indeed correct that the second respondent in his personal capacity was
not cited and should have been formally joined and be found to have committed
contempt of court .
3 To this end the second respondent’s point in limine is sustain ed.
Merits
Parties ’ versions and submissions.
[18] The applicant stated that the second respondent who was in court when
Crutchfield J made an order informed the court that the vehicle was with the bank
and made an undertaking that the car will be returned on 4 April 2025. The order
was indeed forwarded by email to the second respondent and same was also followed by a whatsapp. The second respondent replied and informed the applicant that the communication including the court order were given to the bank and the
latter relayed the information to the bank’s attorneys for further handling.
[19] The vehicle was unlawfully taken from him and worse it was taken with the
assistance of the sheriff who had no jurisdiction over the area where the applicant
resided. The basis to claim his right to the common law remedy of ius retentionis was
3 It was , however, stated that where a director assist the company in avoiding compliance such a
director may be found to be in contempt. It was held in Twentieth Century Fox Film Corporation3 that:
“a director of the company who, with knowledge of an order of court against the company,
causes the company to disobey the order is himself guilty of contempt of court. By his act or
omission such a director aids and abets the company to be in breach of the order of Court against the company. If it were not so, a Court would have difficulty in ensuring that an order
ad factum against a companies enforced by a positive order.”
3
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premised on the fact that he expended amount in excess of R50 000.00 in the
repairs effected on the vehicle.
[20] Counsel for the respondent s outlined the involvement of the first respondent
in the repossession of the motor vehicles from third parties. The first respondent
receives instructions from the Banks which would normally have obtained an order of
court against its customers for repossession. The first respondent would then trace
the motor vehicle and then make whoever is in possession aware of the court order .
In the event the possessor refuses to hand over the vehicle, the first respondent
would summon the assistance of the sheriff and members of SAPS for assistance in
carrying out the order of court .
[21] In this instance both SAPS representatives attend at the scene and assisted
in repossessing the motor vehicle. The applicant insisted that the repossession
should be done at the police station and all of them drove to SAP S where the vehicle
was ultimately given to the first respondent. To this end, the first respondent
contended that the surrendering of the car was voluntary and amounted to the
waiver of the alleged lien by the appl icant . In addition, the contention by the applicant
that the vehicle was repossessed by sheriff without jurisdiction is unfounded since
the warrant did not specify any sheriff and as s uch any sheriff can assist in the
repossession of the vehicle wherever it is located.
[22] The respondent s in retort stated that the order by Crut chfield J is not very
clear and as such is difficult to implement. It says that a party should take rea sona ble
steps to ensure that the car is brought back to the applicant and where an order is
unclear a party may be entitled to ignore it . Counsel referred the court to the
judgment in U niversity of Cape Tow n
4 where, counsel said, under these
circumstances the court can be considered void.
[23] In any event , counsel argued, the second respondent has tried all that he
could to get t he vehicle back from the Bank . Attempts were also made to ensure that
4 University of Cape Town v Minister of Education and Culture (House of Assembly and House of
Representatives) and Others 1988 (3) SA 203 (C) .
7
the second respondent communicates with the applicant to directly discuss the
matter with the attorneys acting for the bank. The applicant spurned the suggestion
and stated that he would approach the court for the necessary relief if the vehicle
was not returned.
[24] Counsel further contended that, having regard to the submission aforesaid,
the applicant has failed to prove that the respondent s had the intention to disregard
the court order. Reference was made of Fakie NO
5 which set out the requirements
which must be satisfied before an order is granted, namely, existence of the order, service or notice of the order, non-compliance and wilfulness and mala fides i n
relation to non- compliance. Further , that the standard of proof to establish evidence
for contempt is beyond reasonable doubts and finally that the applicant i s required to
proof service and non -compliance and thereafter the onus shift to the respondent s to
proof lack of mala fides or intention to disobey the order.
Issues
[25] The issue for determination is whether the applicant has made out a case for
contempt of court.
Legal principl es
[26] The argument that certain court orders are a nullity was considered by the
Constitutional Court in Ndabeni
6 where it was held that no one is entitled to ignore an
order of court. Further that court order remain extant and enforceable until set aside.
[27] It was stated in State Capture
7 that:
“As set out by the Supreme Court of Appeal in Fak ie, and approved by this
Court in Pheko II , it is tri te that an applicant who alleges contempt of court
5 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) .
6 Municipal Manager O.R Tambo District Municipality and Another v Ndabeni 2023 (4) SA 421 (CC).
7 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 and Others [2021] ZACC 18.
8
must establish that (a) an order was granted against the alleged cont emnor ;
(b) the alleged contemnor was served with an order or had knowledge of it;
and (c) the alleged contemnor failed to comply with the order. Once these
elements are established, wilfulness and m ala fides are presumed and the
respondent bears an evidentiary burden to establish a reasonable doubt.
Should the respondent fail to discharge this burden, contempt would have
been established.”8 (footnotes omitted) .
Analysis
[28] Counsel was taken to tas k with the contention that the judgment which is not
clear need not be complied with. To this end counsel, with a measure of reluctance ,
persisted that the order enjoined the respondent to do all that was reasonable and to
this end he complied with the order. This was despite the caution from me that it may
not be proper for counsel as an officer of the court to advise, intentionally or
otherwise, her clients not to comply with an order of court because it was not clear to
him. The first respondent contends that in an attempt to take reasonable steps in
accordance with the order “…it has informed the Bank of the Order and attempted to
connect the applicant and the Ban k’s attorneys to try to resolve the despite that the
possession of the Vehi cle.”
9 The communication of the order to the Bank cannot be
construed as an attempt (or reasonable attempt without more) to comply with the
order or to deliver the vehicle in compliance. The first respondent should have
demanded the vehicle and if the bank refuses, as applicant contended, second
respondent should have then approached the court to state that he is frustrated to
execute the order and not ignore it.
[29] Despite having referred to authorities that the burden is on the respondent s to
prove lack of intention or mala fides the respondent s stated that “… the applicant has
failed to establish how the respondents are in wilful default of the order.”10
8 Id at para 37.
9 See Respondents’ Heads of Argument , CL 19 -10, at para 41.
10 Id at para 39.
9
[30] Though counsel has further intimated the possibility of appeal such an
indication fortifies the applicant ’s allegations that the first respondent was
represented by the second respondent who had the opportunity to address the court
and he did so. Otherwise, the respondents could be speaking of rescission and not
appeal. To this end one can safely conclude that the attempt to raise a dispute is
hopeless , implausible and untenable.
[31] In this case the applicant was able to demonstrate that the first respondent
has knowledge of the court order more so that it was made in their presence and
same being sent by WhatsApp and acknowledged by the second respondent. The
respondent s had the onus to displace possibility of intention or mala fides on their
part. The only thing which in any event fell short of attempt to execut e the order was
just to notify the bank of the Order and not demand the motor vehicle, whilst the respondent s thought of challenging the order (by appealing same) decided not to do
so even through a counter application, if appropriate. T he respondent s argued that
the judgment in U niversity of Cape Town
11 entitle them to ignore the order. Further ,
that there are several interpretations to be attached to the order. Counsel referred
this Court to the passage in University of Cape Town12 where it was stated that:
“Turning to the applicants second ground, that the conditions are void
uncertainty, the question is whether conditions, properly interpreted, bear a
reasonably precise meaning sufficiently to inform the Universities what is
required of them. In other words, is it reasonabl y ascertainable what action
will constitute compliance and what omission will constitute non -compliance?
If the answer to those questions are in the negative, the conditions are b ad in
law and therefore void. ”
[32] University of Cape Town judgment is distinguishable as it related to conditions
in the University Act 61 of 1955. The case serving before me relates to court orders.
11 Footnote 3 above.
12 University of Cape Town at 213A .
10
It is settled law that court orders are valid and enforceable until set aside by a court .
It was stated by the Constitutional Court in Ndabeni13 that
“Trite, but necessary it is to emphasise this Court repeated ex hortation that
constitutional rights and court orders must be respected. . .. no one should be
left with the impression that court orders - including flawed court orders - are
not binding, or that they can be flouted with impunity. ”
This Court in S tate Capture reaffirmed that irrespective of their validity, under section
165 (5) of the Constitution, court orders are binding until set aside. Similarly, Tasima
held that wrongly issued judicial orders are not nullities . They are not void or
nothingness but exist in fact with possible legal consequences. (Footnotes omitted)
[33] The applicant submitted the second respondent stated in court that he will
ensure that the motor vehicle is returned on 4 April 2025. In return the court ordered
that all that is necessary should be done to ensure that the vehicle is returned. There is nothi ng unclear about this order. The applicant has correctly stated that if for any
reason the respondents is being frustrated to execute the order the respondents
should have approached the court to obtain an order against whomsoever is
frustrating the implementation of the order alternatively approach the court to vary
the order if so advised.
[34] Instead, the respondent s just notified the bank about the order and conveyed
the contacts of the Bank’s attorney to the applicant. T his cannot be construed as
action from a party attempting to give effect to the order. The defence that the order
is unclear is unsustainable as it is not ambiguous that do all to ensure the vehicle is
returned. Even if it could be argued that it is unenforceable the respondent s are not
entitled to take a supine posture and consider same to be a nullity but should
approach court for clarity or even appeal the order as it was intimated during
argument.
14 Taking a conscious decision that nothing is going to be done is a
13 Municipal Manager O.R Tambo District Municipality and Another v Ndabeni at para 23 -24.
14 It was held in S v S 1998 (4) SA 714 (W) at 726E that “… in general, all orders of court , whether
correct or incorrect ly granted have to be obeyed until they are properly set aside. If it were otherwise
11
deliberate conduct on the part of the respondent which the respondent failed to
dispel.
[35] It is noted that some of the exculpatory stance could be where a party can
demonstrate that there was reasonable mistake15 or demonstrated his own bona
fides16. It is further noted from Scalabrini Centr e17that the “Courts ought not to
compel the impossible”.18 The court held in Scalabrini Centr e that “Moreover,
litigants who are required to comply with court orders, at the risk otherwise of being in contempt if they do not, must know with clarity what is required of them.”
19 In the
premises I find that the applicant has proved his case against the first respondent.
Appropriate sanction
[36] Once a court has returned a decis ion that contempt of court has been
committed , an appropriate sanction should be imposed and this could either be a
coercive or punitive order . A coerci ve order would accord a contemnor an
opportunity to purge the contempt and comply with the order granted and avoid the
sentence of paying a fine or imprisonment. The amount payable is generally
discretionary and Court may have regard to seriousness and extend of defiance ,
purpose of the fine being to encourage compliance, prevalence of the infraction and
comparative orders. The contemnor was ordered to pay R40 000.00 in T.M.B
20.
[37] The respondent s should be sentenced to a fine of R50 000.00 which is
suspended for a period of 30 days to enable the respondent s to purge the contempt ,
failing which the aforesaid fine must be paid to the Department of Justice . The
applicant’s wish was that the fine should be paid to himself and this argument fail to
respondents will be able to defy the court orders with impunity, contending that they believed such
orders to be wrong ”.
15 Consolidated Fish Distributors v Zive 1968 (2) SA 517.
16 Noel Lancaster Sands EDMS BPK v Theron and Wickee v Wicke 1929 WLD 145.
17 Minister of Home Affairs v Scalabrini Centre, Cape Town 2013 (6) SA 421 (SCA) ,
18 Id at para 76.
19 Id at para 77.
20 T.M.B v M.C.R and Others [2024] ZAGPPHC 1062 (30 October 2024) .
12
appreciate that the offence of contempt of c ourt is an affront to the court and not the
applicant.21
Costs
[38] There applicant was not represented and therefore no costs order would be
made in his favour. There will be no costs order granted in respect of the points in
limine raised by the r espondents.
Order
[39] In the result, I make the following order:
1. The Applicant’s non -compliance with the rules and /or practice
directives relating to service and time periods is condoned and the application is allowed to be heard in accordance with Rule 6(12) of the Uniform Rules of Court.
2. The Respondents ’ point in limine of misjoinder is upheld.
3. The Responden ts’ point in limine of lack of service is dismisse d.
4. It is declared that the F irst Respondent is found to be in contempt of
the order of Court dated 2 April 2025.
5. The First Respondent is ordered to compl y with the order of the Court
dated 2 April 2025 within 15 days of handing down of this order , failing the
First Respondent is sentenced to pay a fine of R50 000.00 payable to the
Department of Justice with 7 days thereafter .
21 See State Capture at para [61] where it was stated that “… contempt of court is not an issue inter
partes [between the parties ]; it is an issue between the court and the party who has not complied with
a mandatory order of court ”… the overall damage c aused to society by conduct that poses the risk of
rendering the J udiciary ineffective an eventually powerless is the very heart of why our law forbids
such conduct. ”
13
6. No order as to costs.
MV NOKO
JUDGE OF THE HIGH COURT
JOHANNESBURG
This judgement was prepared and authored by Noko J and is handed down
electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 6 May 2024 .
Date of hearing: 14 April 2025
Date of judgment: 6 May 2025
Appearances
For the Applicant : In person
For the Respondent s: FA Darby
Instructed by UMS Attorneys .