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[2013] ZAWCHC 176
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Arvum Exports (Pty) Ltd and Others v Costa NO (18979/2013) [2013] ZAWCHC 176 (20 November 2013)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 18979/2013
Before: The Hon. Mr Justice Binns-Ward
In the matter between:
ARVUM EXPORTS (PTY) LTD
(formerly Unlimited Fruit (Pty) Ltd) Reg. No: 2000/013357/07
First Applicant
UNLIMITED
FRUIT (PTY) LTD
(formerly Arvum Exports (Pty) Ltd) Reg. No:
2008/028031/07
ARVUM FINANCE (PTY) LTD
Second Applicant
Third Applicant
and
ZELDA MARGARETHA COSTA N.O.
First Respondent
DANIEL COETZEE N.O.
Second Respondent
JOHANNES NICOLAAS JACOBUS VAN
DER WESTHUIZEN N.O.
Third Respondent
(In
their capacity as trustees for the time being of the Klein
Botrivier Trust, No: IT 852/2007 and the Alberto Costa Trust
No.
IT 806/1998)
ZELDA
MARGARETHA COSTA N.O.
(In her capacity as executrix of
the Estate Late Alberto Costa)
Fourth Respondent
JUDGMENT: 20 NOVEMBER 2013
BINNS-WARD J:
The
issue that I am called upon to decide at this stage of the
application demonstrates that while the rule
nisi
is a well-established and sometimes
useful procedural device it should, save where its use is prescribed
by statute, be employed
judiciously, mindful that in motion
proceedings its use as an alternative to Forms 2 and 2(a) in the
First Schedule to the Uniform
Rules of Court for the initiation of
proceedings is not ordinarily appropriate.
The
applicants and the first to third respondents are parties to a
principal case (under case no.
19206/2012)
concerning
contracts bearing on the production and marketing of fruit and a loan
associated therewith.The principal case is currently
pending before
Cloete J consequent upon an order made by me on 23 November 2012
referring certain issues in that case for
the hearing of oral
evidence.Cloete J has reportedly heard several days’ of
oral evidence and is due to hear argument
on 21 and 22 November
2013.
Paragraph
8 of the order made on 23 November 2012 afforded interim relief
to the applicants in the following terms:
Pending the determination of the application after the
hearing [on the issues referred for oral evidence], and without
prejudice
to any claim for damages against the applicants they might
have in consequence of compliance with this order, whether in their
capacity as trustees of the Klein Botrivier Trust or of the Alberto
Costa Trust, the first, second and third respondents are directed
to
deliver, or procure the delivery of, all fruit of the Flavor Fall
varietal and all nectarines produced on the farm Botterkloof
(comprising the farms currently held under Deeds of Transfer
T036273/2002 and T000041238) to the first applicant, to be marketed
and accounted for by the latter and the third applicant in accordance
with the loan and supply agreements executed on 12 July
2009
referred to and defined in paragraphs 1 and 2 of the judgment.
The
applicants allege that the first, second and third respondents are
refusing to comply with the interim order and have made application
for them to be sanctioned for contempt of court. The contempt of
court application came before me. The respondents delivered a
preliminary answering affidavit raising procedural objections to the
manner in which the application had been brought.
In essence
the respondents’ position was that the application lacks
urgency, that proper notice of it was not given and that
they were
afforded an inadequate opportunity to prepare answering papers on the
merits of the matter. The respondents did, however,
treat
sufficiently of the merits in their preliminary answer for it to be
apparent that they will deny being in contempt of the
interim order.
It appears in that regard that they allege that they have been
willing to deliver or procure the delivery of the
fruit in question
in terms of the loan and supply agreements mentioned in the interim
order, but that the first and third applicants
are reneging on the
payment obligations under the agreements. It thus appears unlikely
that the contempt application will be capable
of determination on
paper. Whether that is indeed the case or not will only be confirmed,
of course, when the papers in the application
are complete.
It is
necessary for the purposes of dealing with the respondents’
procedural objections to set out the applicants’ notice
of
motion in full. It read as follows:
‘
BE PLEASED TO TAKE NOTICE
that the
abovementioned Applicants intend applying to the “fast lane”
of this Honourable Court on
Monday,
18 November 2013 at 10h00
or
as soon thereafter as the matter may be heard for an Order in the
following terms:
1.
Dispensing with the forms and requirements of the rules of this
Honourable Court and permitting the matter to be heard as one
of
urgency in terms of Rule 6(12)(a) of the aforesaid rules.
2.
Authorising the manner in which the Applicants effected service of
this application on the Respondents.
3.
Directing that a rule
nisi
do issue, calling upon the Respondents to show cause on
Thursday,
21
November
2013 at 10h00
or as soon thereafter as the parties may be heard why an order should
not be made in the following terms:
3.1. That the First,
Second and Third Respondents are in contempt of the order of court of
Mr Justice Binns-Ward dated 23 November
2012 under case
reference no. 19206/12 (“the Order”);
3.2. That a period
of imprisonment, such as is deemed appropriate by this Honourable
Court, be imposed on the First, Second and
Third Respondents by this
court, such period itself being subject to any conditions this
Honourable Court may deem appropriate;
3.3. That a fine,
such as is deemed appropriate by this court, be imposed upon the
First, Second and Third Respondents in regard
to their contempt;
3.4. That, in the
event this application is not finalised on 21 November 2013, this
Honourable Court should issue directions regarding
compliance with
the Order as it may deem meet.
3.5. That the First,
Second and Third Respondents should pay the costs of this application
de bonispropris
(sic), such costs to be on the scale as between
attorney and client and to be payable by First, Second and Third
Respondents jointly
and severally, the one paying the others to be
absolved; and
3.6. that the
Applicants be granted such further and/or alternate relief as this
Honourable Court may deem fit.
4. The matter is
postponed to Thursday 21 November 2013.
5. The Applicants
are to serve this Order forthwith, in the manner the application was
served.
6. The Respondent
are directed to file their answering papers, if any, by not later
than noon on Tuesday 19 November 2013.
7. The Applicants
are directed to file their replying papers, if any, by no later than
noon on Wednesday 20 November 2013.
8. All questions of
costs are to stand over for later determination.
BE PLEASED TO TAKE NOTICE FURTHER
that the
annexed affidavits of …..will be used in support of the
application.
BE PLEASED TO TAKE NOTICE
FURTHER that the
applicants have appointed the offices of …., at which they
will accept notice and service of all process
in these proceedings.
BE PLEASED TO TAKE NOTICE FURTHER
that if you
intend opposing this application you are required to appear at this
Honourable Court at 10h00 on Monday 18 November
2013, and that if you
fail to appear the Applicant’s will seek the relief set out
above in your absence.
KINDLY ENROL THE MATTER FOR HEARING ACCORDINGLY
’
It is
apparent from the notice of motion that the application was
structured so as to come before court on Monday, 18 November
2013 only for the purpose of obtaining the court’s imprimatur
on the method of service of the application and for the issue
of a
rule
nisi
setting the matter down for hearing on 21 November
2013 with directions to the parties on the exchange of further papers
so
that the matter would be ripe for hearing on that date.
The matter
was first brought before Van Staden AJ, who was doing duty as the
duty judge in the ‘fast lane’, on the morning
of
18 November 2013. (The ‘fast lane’ is the branch of
the Third Division motion court in this Division of the
High Court
that deals with applications requiring to be heard as a matter of
extreme urgency. Applications which are urgent, but
do not need to be
heard immediately or on a significantly curtailed timetable are heard
on the semi-urgent roll of the Fourth Division
in this court. Opposed
motions which are to be heard in the ordinary course are enlisted by
the registrar on the ordinary Fourth
Division roll.) Van Staden AJ
was conflicted and thus unable to deal with the matter. It was then
referred to Cloete J
because of her familiarity with the
background to the case on the assumption that if the application were
to be heard on 21 November
2013 it would be convenient for it to
be argued together with the principal case. Cloete J, however,
considered that it would
be inappropriate for the current application
to be dealt with by her together with the principal case. The matter
was then allocated
to me in the early afternoon of 18 November.
At a meeting with counsel in my chambers it became apparent that the
respondents
were in the process of preparing answering papers on the
preliminary issue of urgency. In the circumstances the hearing of the
matter was stood down until the morning of 19 November. The
respondents’ preliminary answering affidavit was delivered
very
shortly before the court went into session and a short adjournment
was necessary to allow me to apprise myself of its content.
The
applicants elected not to seek the opportunity to reply to the
answering affidavit.
At the
outset I enquired of counsel for the applicants as to the
appropriateness in the circumstances of the structure of the
application.
Why was a rule
nisi
necessary? And why was a
directions hearing necessary? The questions were directed because it
was evident that nothing more was
sought from me than the issue of a
rule to facilitate the hearing of the matter on certain directions.
It seemed to me that the
involvement of the court for this purpose
was an unnecessary imposition on judicial resources and on the
respondents in the circumstances.
Counsel
explained that the procedure adopted had been based on the guidance
provided in a passage from Herbstein& Van Winsen
The Civil
Practice of the High Courts of South Africa
Fifth Edition at
1102-1103:
Contempt procedure is summary in nature, and the usual
method of initiating such proceedings is by way of an application for
the
issue of a rule
nisi
.
It has also been held that ongoingcontempt of a court order, by its
very nature, introduces an element of urgency in the proceedings.
In
Safcor Forwarding (Johannesburg) (Pty) Ltd v
National Transport Commission
1982 (3) SA 654
(A) it was stated that, particularly in matters of urgency, the
utilisation of the rule
nisi
procedure is to be encouraged.
(footnotes
omitted)
Reliance
was also placed on the following passage in the judgment of
Plasket AJ in
Victoria Park Ratepayers’ Association v
Greyvenouw CC
[2004] 3 All SA 623
(SE) at para 5-8:
[5] It appears to me
that the main purpose of the practice of seeking a rule
nisi
in
cases such as this is to regulate how the matter is to proceed.
Contempt of court has obvious implications for the effectiveness
and
legitimacy of the legal system and the judicial arm of government.
There is thus a public interest element in each and every
case in
which it is alleged that a party has wilfully and in bad faith
ignored or otherwise failed to comply with a court order.
This added
element provides to every such case an element of urgency.
[6] It has been held
that, particularly in matters of urgency, the utilisation of the rule
nisi
procedure is to be encouraged. In
SAFCOR Forwarding
(
Johannesburg
) (
Pty
)
Ltd v National Transport
Commission
Corbett JA stated:
“
The
Uniform Rules of Court do not provide substantively for the granting
of a rule
nisi
by
the Court. Nevertheless, the practice,
in
certain circumstances
,
of doing so is firmly embedded in our procedural law. This is
recognised by implication in the Rules (see, eg, Rule 6(8) and Rule
6(13)). The procedure of a rule
nisi
is
usually resorted to
in
matters of urgency and where the applicant seeks interim relief in
order adequately to protect his immediate interests
.
It is a useful procedure and one to be encouraged rather than
disparaged
in
circumstances where the applicant can show,
prima
facie
,
that his rights have been infringed and that he will suffer real loss
or disadvantage if he is compelled to rely solely on the
normal
procedures for bringing disputes to Court by way of notice of motion
or summons
.
The rule
nisi
procedure
must
be considered in conjunction with the provisions of Rule 6(12)
which, in the case of urgent applications, permits the Court to:
‘
dispense
with the forms and service provided for in these Rules and (to)
dispose of such matter at such time and place and in such
manner and
in accordance with such procedure (
which
shall as far as practicable be in terms of these Rules
)
as to it seems meet’.
(And
see in this connection
RepublikeinsePublikasies
(
Edms
)
Bpk v AfrikaansePersPublikasies
(
Edms
)
Bpk
1972 (1) SA 773
(A) at 781H–782G.) In fact, the rule
nisi
procedure does make it possible for the
application to come before the Court for adjudication more speedily
than the usual procedures
for the set down of applications or trials,
and it does,
in a proper case, permit of the
granting of interim relief
.”
(emphasisin
the passage quoted from the judgment in
SAFCOR
Forwarding
supplied by me)
[7] There is
authority for the proposition that, in contempt of court cases, the
party alleged to be in contempt because he or she
has failed or
refused to obey an order is not automatically entitled to be heard
while he or she remains in default. While
courts will obviously
be loath to refuse to hear a party’s defence, and it will only
be in the most exceptional of cases
that a party may be barred in
this way from defending himself or herself, the rule
nisi
procedure allows the court to regulate the respondent’s
access to court, set the bounds of the dispute in the rule so that
the respondent is in no doubt as to the case he or she must meet, and
set the procedural rules for the further conduct of the matter.
[8] Flowing from the
above, I am of the view that, from a procedural point of view, the
application for a rule
nisi
as a first step in the committal
application was a sensible expedient, especially when it is borne in
mind that the matter was an
urgent application. In these
circumstances, and on the basis of the applicant’s papers only,
the applicant established a
prima facie
case of contempt of
court. As a result, it was entitled to the rule
nisi
that it
sought: that relief, it seems to me, was the minimum needed to
protect its interests and, at the same time, give recognition
and
protection to the rights of the respondents, who, after all, had not
been heard on the merits at that stage.
The
passage from Herbstein&Van Winsen does not state the position
entirely accurately in my view. Whereas the contempt proceedings
do
indeed ordinarily bear an element of urgency and may well have taken
a particular form traditionally, the rules of procedure
of have
evolved over time and what might have been done historically does not
necessarily hold goodin the current age. As Corbett
JA described in
Safcor Forwarding
, our courts devised their own procedures in
the absence of specific rules. Regulating their own procedures has
always been part
of the superior courts’ inherent jurisdiction.
It is a jurisdiction expressly recognised in s 173 of the
Constitution.
The various divisions of the late Supreme Court each
had their own rules of procedure; which were later in large measure
standardised
and replaced by the currently applicable Uniform Rules.
Even in the context of the application of the Uniform Rules of Court,
the
various divisions of the High Court have maintained some of their
own rules of practice and procedure tailored to fit the peculiar
requirements of each court. In this Division these are contained
principally in ‘The Consolidated Practice Notes’;
see van
Loggerenberg et al,
Erasmus, Superior Court Practice
at D-3-1
– D3-24. The judgment in
SAFCOR Forwarding
was not
concerned with proceedings in contempt proceedings; in the relevant
part it was concerned with the question whether rule
53 of the
Uniform Rules (which regulates procedure in judicial review
applications) excludes the use in any circumstances of the
rule
nisi
procedure. In simplified terms, in
SAFCOR Forwarding
the
applicant for judicial review commenced proceedings using a composite
notice of motion in terms of which a rule
nisi
was sought
calling upon the respondent to show cause why its decision should not
be reviewed and set aside, and,
in addition
, calling upon it to
show cause why certain interim relief should not apply pending the
determination of the review. The notice
of motion also sought an
order directing that the interim relief sought should apply pending
the determination of the prayer for
interim relief on the return day
of the rule. It was in that context that Corbett JAmade the
observations(at 674H-675B of
the judgment) quoted by Plasket AJ at
para 6 of his judgment in
Victoria Park Ratepayers’
Association
set out earlier. An appreciation of the context gives
particular meaning to the parts of the extract from Corbett JA’s
judgment
in
SAFCOR Forwarding
quoted by Plasket AJ, which I
have emphasised in bold font.
The
reference to rule 6(12) in the passage from
SAFCOR Forwarding
quotedin
Victoria Park Ratepayers’ Association
underlines
the learned judge of appeal’s intention to recognise the role
of the rule
nisi
procedure as one that might, depending on the
circumstances of a given case, serve a useful role in cases of
urgency where interim
relief is required to protect an applicant’s
immediate interests. In the immediately succeeding passage of the
judgment Corbett
JA also illustrated the flexibility of rule 6(12)
with reference to
RepublikeinsePublikasies (Edms) Bpk v
AfrikaansePersPublikasies (Edms) Bpk
1972 (1) SA 773
(A) at 781H
- 782G. The latter judgment confirmed the ability of an applicant in
urgent proceedings to frame its own rules, which,
if reasonably
formulated, a respondent will ignore at its peril. The subsequent
judgment of Flemming DJP in
Gallagher v Norman's Transport Lines
(Pty) Ltd
1992 (3) SA 500
(W) was to a material extent predicated
on
RepublikeinsePublikasies
.
Practice
Note 34 in this court’s Consolidated Practice Notes provides:
Urgent
Applications.
—
(1) When an
application is alleged to be of extreme urgency, the applicant’s
legal representative shall approach the Registrar
to arrange a
hearing as soon as possible in consultation with the duty judge.
(2)
Practitioners are expected to adhere as far as possible to the basic
requirement of Rule 6 (5) (
a
)
that Form 2 (
a
)
be used in applications, including applications with an element of
urgency. (In this regard, the attention of practitioners is
drawn to
the judgment in
Gallagher
v Norman’s Transport Lines
1992 (3) SA 500
(W) at 502D — 504C.)
(3)
Opposed matters which are not of extreme urgency but which are
nevertheless too urgent to await a hearing in the ordinary course
on
the continuous roll will be granted some preference. For convenience
these matters are called ‘
semi-urgent
’
matters.
Reference
to the specified passage in
Gallagher
establishes the
following requirements:
(a) applications in
which relief is sought against other parties should be brought on
notice of motion in accordance with Form 2(a)
in the First Schedule
to the Uniform Rules read with rule 6(5);
(b) even when the
application is urgent, the notice of motion should as far as possible
be compliant with the form of Form 2(a),
and only in exceptional
cases should the exigencies of the case justify a complete departure
from Form 2(a);
(c)
the court ‘is enjoined by Rule 6(12) to dispose of an urgent
matter by procedures “which shall as far as practicable
be in
terms of these Rules”. That obligation must of necessity be
reflected in the attitude of the Court about which deviations
it will
tolerate in a specific case’;
(d) ‘
the
mere existence of some urgency cannot therefore justify an applicant
not using Form 2(a). The rules do not tolerate the illogical
knee-jerk reaction that, once there is any amount of urgency, that
form of notice of motion may be jettisoned -
and
often that a rule
nisi
may be sought
’;
(e) ‘
the
applicant must, in all respects, responsibly strike a balance between
the duty to obey rule 6(5) and the entitlement to deviate,
remembering that that entitlement is dependent upon and is thus
limited according to the urgency which prevails’;
(f) ‘
on
the practical level it will follow that there must be a marked degree
of urgency before it is justifiable not to use Form 2(a)’;
(g) ‘
almost
all requirements of urgency can be managed by using Form 2(a) with
shortened time periods, or by mere adaptation of an aspect
of the
form, for example advance nomination of a date for hearing or
omitting notice to the Registrar, accompanied by changed wording
when
necessary’.
The application in
the current matter was required to comply with the aforegoing
prescripts arising from the judgment in
Gallagher
. It did not.
Instead it proceeded on an
ad hoc
basis which contemplated
that the court should be approached to endorse the time timetable
selected by the applicant for the exchange
of papers. Had an
adaptation of Form 2(a) been used this would have been quite
unnecessary as the applicants could have determined
the timetable
themselves. The only constraint on them in this regard would have
been that they would have been enjoined to devise
a timetable that
allowed the respondents a reasonable opportunity to answer the
application. Reasonableness in this context will
be directly related
to the degree of urgency that the application objectively commends.
The procedure adopted by the applicants
provided for a rule
nisi
to issue when none of the relief sought by the applicants was
directed at securing their immediate interests on an interim basis.
No interdictory relief is sought by the applicants. The application
is cast purely as contempt proceedings.
While allegations of
contempt of the court’s orders ordinarily fall to be determined
with a degree of urgency, there will,
save in the most exceptional
cases, be no reason to deal with them in the ‘fast track’court,
rather than on the semi-urgent
roll. In the current matter therefore
the applicant should have set their own timetable in the manner
contemplated in
Gallagher
and
RepublikeinsePublikasies
.
The involvement of a judge and the appearances of counsel on Monday
18 November and Tuesday 19 November should have been
quite
unnecessary.
The approach
endorsed by Plasket AJ in
Victoria Park Ratepayers’
Association
was on the face of the passage from the judgment
which I have quoted influenced by the peculiar character of the case
that the
learned judge was dealing with. The approach also falls to
be assessed in the context of the practice of the Division of the
High
Court in which he was sitting. To the best of my knowledge the
South Eastern Local Division does not have a ‘fast track’court
or a semi-urgent roll, nor does it have a practice requirement
closely equivalent to that set out in PN 34(2) of the Western
Cape Consolidated Practice Notes.
It was also
misdirected of the applicants to assume that they might reasonably
presume to secure the hearing of the contempt application
before
Cloete J on 21 November. They were aware that Cloete J had
set aside that and the following day to hear argument
in the
principal case. The alleged contempt of the interim order by the
respondents has no bearing on the determination of the
principal
case. The timetable that the applicants sought to have endorsed for
the exchange of papers in the contempt application
would be
sustainable only in respect of a case of extreme urgency. It was
formulated, however, not with regard to the urgency of
the case
assessed objectively, but entirely with the misdirected view of
trying to make the matter ripe for hearing before Cloete J
together with the principal case.
The only matter
justifying exceptional urgency in the matter is the allegation by the
applicants that the nectarines that the respondents
are obliged, in
terms of the interim order, to supply to the applicants are currently
being harvested; and it would appear that,
if nothing is done to stop
it happening, they are likely to have been disposed of to third
parties in the very near future. That,
however, is not something to
which contempt proceedings are directly related. The proper course to
protect the interest that the
applicants apparently wish to secure by
the current litigation would have been to seek urgent interim relief
prohibiting the disposal
of the nectarines by the respondents pending
the determination of the contempt proceedings or the principal case,
whichever comes
first. Had the application included such urgent
interim relief, which presumably would have been required with
immediate effect,
a composite notice of motion including a rule
nisi
in respect of at least the interim relief might have been
appropriate. As counsel for the respondents correctly emphasised in
his submissions, in the absence of any prayer for such interdictory
relief the bases for the degree of urgency with which the applicants
seek to bring the application and the appropriate use of the rule
nisi
procedure are lacking.
In the circumstances
the proper course would be either to strike the contempt application
from the roll or to send it, with directions,
for hearing on the
semi-urgent roll. Owing to the public interest in ensuring proper
respect for and due compliance with court
orders it seems to me that
the latter course would be the more appropriate. An order to that
effect will therefore issue. I am
advised by the Registrar that the
first available date on the semi-urgent roll is 13 February
2014. It seems to me that the
wasted costs occasioned by the
engagement of counsel to appear on 18 and 19 November should be
borne by the applicants. I
should perhaps make it clear that nothing
in this judgment or the order to be made should be construed as
prohibiting or preventing
the applicants in further proceedings, if
so advised, from urgently seeking interdictory relief to protect
their interests pending
the determination of the contempt proceedings
or the principal proceedings, as the case may be.
In view of the
conclusion to which I have come and the fact that whatever its formal
defects might arguably have been the service
effected on the
respondents has been sufficiently effective to have brought them all
before the court - the fourth respondent has
indicated that she does
not wish to participate in the proceedings as no relief is sought
against her - I find it unnecessary to
deal with the complaints about
irregular service.
The following order
is made:
The application is
postponed for hearing on the semi-urgent roll on 13 February 2014;
The respondents are
directed to deliver their additional answering affidavits, if any,
within 10 days of the date of this order
The applicants are
directed to deliver their replying affidavits, if any, within 5 days
of the delivery of the respondents’
additional answering
affidavits.
Heads of argument
must be filed in compliance with the applicable Practice Note.
The applicants
shall be liable, jointly and severally, the one paying the others
being absolved, to pay the costs incurred by
the respondents in
respect of the engagement of senior counsel to appear on 18 and
19 November 2013.
A.G. BINNS-WARD
Judge of the High Court
Before:
Mr Justice Binns-Ward
Date of
hearing: 19 November 2013
Judgment
delivered: 20 November 2013
Applicants’
counsel: A.H. Morrissey
Applicants’
attorneys: Basson Blackburn Inc.
Paarl
De
Klerk and Van Gend
Cape
Town
First,
Second and Third Respondents’ counsel: W.R.E.Duminy S.C.
Respondents’
attorneys: SpamerTriebel Attorneys
Bellville