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[2012] ZAWCHC 397
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Jist Project Management Works CC v Delta Transport And Waste CC and Another; In Re: Jist Project Management Works CC v Delta Transport And Waste CC and Another (27214/10 & 5176/11) [2012] ZAWCHC 397 (5 March 2012)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASENOS:
27214/10 & 5176/11
DATE:
05 MARCH 2012
In the matter
between
JIST PROJECT
MANAGEMENT WORKS CC
........................................
Applicant
And
DELTA TRANSPORT &
WASTE CC
.............................................
First
Respondent
THE CITY OF CAPE
TOWN
......................................................
Second
Respondent
In re
JIST PROJECT
MANAGEMENT WORKS CC
.......................................
Applicant
and
DELTA TRANSPORT &
WASTE CC
............................................
First
Respondent
DAVID MARIUS
LUUS
.............................................................
Second
Respondent
JUDGMENT
DELIVERED ON 5 MARCH 2012
DOLAMO, AJ
[1] The Applicant
and the First Respondent's business premises are located in Nebula
Crescent, Blackheath, Western Cape ("Nebula
Crescent")
which is a public road within the jurisdiction of the City of Cape
Town, the Second Respondent. The Applicant's
business premises are
located on two sites, situated opposite each other, bordering on
Nebula Crescent and in the immediate vicinity
of the First
Respondent's business premises. From these premises the Applicant's
business activities, including, manufacturing;
administrative;
storage; loading and off-loading were conducted. In short, other than
activities on construction and installation
sites, the Applicant's
business activities were centred around the premises in Nebula
Crescent. The Applicant employed a hundred
and twenty people, twenty
of whom were involved in the administrative and management part of
the business while the remaining hundred
were employed at its various
operational sites. It owned thirty vehicles, twenty of which were
trucks and bakkies which were used
to transport the Applicant's
employees and material to and from Applicant's business premises and
the various construction and
service sites where Applicant was
rendering its services. The remaining ten vehicles, normal sedans,
were used by its management
and administrative staff. All these
vehicles, almost on a daily basis, shuttle between the Applicant's
business premises on the
one hand and the various construction and
services sites where the Applicant had operational activities, on the
other.
[2] There is a boom
gate at the entrance to Nebula Crescent. All vehicular traffic
entering Nebula Crescent had to pass through
this boom gate. After
passing the boom gate, most vehicles, if not all, had to pass the
First Respondent's business premises before
and in order to access
other premises bordering on Nebula Crescent. Applicant stated in its
papers that this boom gate was erected
in order to control the
passage of vehicular traffic through the industrial area and with the
view to managing the security of
the area "for the benefit of
all the businesses operating in and around Nebula Crescent".
[3] The Applicant
alleged that since approximately June 2009 the area in the immediate
vicinity of the Applicant's premises had
been obstructed, with
increasing regularity, by the unlawful loading and off-loading
activities of the First Respondent. These
alleged unlawful
activities, as long as they were in operation, prevented the
Applicant's and other vehicles using Nebula Crescent
from accessing
their own business premises, to the extreme inconvenience of the
Applicant and the other users. The Applicant alleged
that they were
regularly obliged to wait, up to fifteen minutes at a time, while
these unlawful activities were underway. Numerous
meetings held with
the First Respondent and other concerned parties, in particular the
one of the 20th September 2010, have failed
to resolve the impasse.
[4] From 6 August to
18 November 2010, With a view to bringing this Application which was
eventually brought ex parte and on an
urgent basis, the Applicant
caused photos to be taken, allegedly depicting the unlawful
activities of the First Respondent along
Nebula Crescent. On 14
December 2010 the Application was launched and set down for hearing
on 17 December 2010. The Applicant claimed
the following relief:
"1. Condoning
the Applicant's non-compliance with the forms and service provided
for by the Rules of this Court and directing
that the application be
heard as one of urgency in terms of Rule 6(12) (c);
2. That a rule nisi
do issue calling upon the First Respondent to show cause, if any, on
a date to be determines by this Court,
why an order should not be
made interdicting and restraining the First Respondent from in any
way preventing, hindering or interrupting
the free and proper passage
of traffic and more particularly, the vehicular traffic of the
Applicant, in and along Nebula Crescent,
a public road situate in
Blackheath, Western Cape;
3. Directing that
the provisions of paragraph 2 above shall operate as an interim
interdict, pending the return day of the rule
or any extension
thereof, subject to the condition that the First Respondent may
anticipate the return date upon 24 hours' written
notice to the
Applicant's attorneys;
4. Costs against the
First Respondent on the scale as between attorney and client;
5. Granting the
Applicant further and/or alternative relief."
[5] On 17 December
2010 a rule nisi was issued calling upon the First Respondent to show
cause on 25 January 2011, if any, why a
final order interdicting it
should not be granted and, pending the return date, interdicting and
restraining it from in any way
preventing, hindering or interrupting
the free and proper passage of traffic and, in particular, the
vehicular traffic of the Applicant
in and along Nebula Crescent.
[6] On 5 January
2011 the First Respondent filed its notice of intention to oppose and
on 25 January 2011 filed its answering affidavit.
On this latter date
the parties agreed to postpone the matter to 10 August 2011 for
argument, the rule nisi being accordingly extended.
The Second
Respondent, on the other hand, filed a notice to abide by the
decision of the Court provided no cost order was sought
against it.
This in essence left the First Respondent as the only Respondent in
this matter. I shall henceforth, for ease of reference,
refer to the
First Respondent simply as the Respondent.
[7] On 25 February
2011 the Applicant filed its replying affidavit.
[8] On 07 March 2011
the Applicant instituted contempt proceedings ("the contempt
proceedings") alleging a flagrant disregard
of the interim order
by the Respondent. Mr Luus (presumably the only member of the
Respondent) was cited as the Second Respondent
in this contempt
proceedings. On 16 March 2011 a rule nisi was granted calling upon
the Respondents to show cause if any, why they
should not be held in
contempt of the interim order granted on 17 December 2010.
[9] On or about 26
July 2011 the Respondent applied for leave to deliver rejoinder
papers (the "rejoinder application")
in respect of both the
main and the contempt applications. To this rejoinder application the
Applicants served a notice, which
was said to be in terms of Rule 30
(1), allegedly affording the Respondent an opportunity to withdraw
the rejoinder application
failing which an application to set aside
this "irregular step" would be launched. As at the time of
hearing of the matter
no such application was brought.
[10] Prior to
commencement with argument the parties agreed that all the other
applications be heard pari passu with the main and
the contempt
applications and on the basis that all the affidavits were before
court. I found this to be a practical approach since,
in my view, no
party could be prejudiced by the admissions of all the other
affidavits. I shall however, devote more attention
to the main
application as the other applications, in my view, are dependent upon
the resolution of the issues raised therein.
In doing so I shall not
lose sight of the fact that further facts, which are relevant to the
determination of the facta probanta,
came via the affidavits which
were filed in the ancillary applications.
[11] In its heads of
argument the Applicant submitted that it has established a clear
right, which was a right which inheres in
every individual who uses a
public road by virtue of the provisions of Regulation 319 of the
National Road Traffic Regulations
1999 ("Regulation 319").
This right prohibits the wilful and unnecessary prevention hindering
or interruption of traffic
on a public road. The Applicant further
submitted that the question whether Applicant's rights had been
infringed is a factual
one and that, on the facts set out in the
papers the Applicant had established on a balance of probabilities a
case entitling it
to the final relief sought. To prove the
infringement the Applicant, in addition to the averments in its
affidavits, relied on
a series of photographs which ex facie appears
to establish a blockage of Nebula Crescent by the Respondent while it
was engaged
in the loading and off-loading activities.
[12] The Applicant
initially applied for an order which restricted and interdicted the
Respondent from in any way preventing hindering
or interrupting the
free and proper passage of traffic in and along Nebula Crescent. Mr
Albertus, who appeared for the Applicant,
conceded that the words
"wilfully" or "unnecessarily" have to be inserted
in the final order so as to bring
the relief sought in line with
Regulation 319. He however contended that the words "prevent"
"hinder" or "interrupt",
used in Regulation 319,
must be read disjunctively and not conjunctively with the result that
the Respondent would fall foul of
the said Regulation if it
"prevented" "hindered" or "interrupted"
the free and proper passage of
the Applicant's vehicle in and along
Nebula Crescent. Mr Albertus went on to give the dictionary meaning
of these words.1 Finally
he made the submission that on a proper
interpretation of Regulation 319 the Applicant has sufficiently
established that the Respondent
had regularly violated the
Applicant's right to the free and proper passage of its vehicles. In
support of his submissions Mr Albertus
referred the court to Ex Parte
Letord: in re Marcus, NO and others
1953 (4) SA 359
(N); Rex v De
Jager
1917 CPD 205
; and Rex v Schmitt
1918 CPD 11.
[13] The
Respondent's main ground for opposing the application was the denial
of the alleged wrongful acts. As regards the requirements
of a final
interdict the Respondent alleged that the Applicant has failed to
make out a case for such a relief. While it agreed
with the Applicant
that Regulation 319 of the National Road Traffic Regulation 2000 was
relevant to the proceedings it nevertheless
alleged that, on those
occasions where it had obstructed the free and proper passage of
vehicular traffic in Nebula Crescent, such
was done out of necessity
and certainly not willful: that due to the nature of its business it
was required to load and off-load
vehicles in and around the
immediate vicinity of its premises. It also denied that its action
constituted a common law nuisance
or that the Applicant had complied
with all the requirements for a final interdict thereunder. In
particular the Respondent alleged
that there were other remedies
available to the Applicant and that the latter had not exhausted
them. The other remedies it suggested
included engaging the local
traffic authorities to resolve the matter or traffic in Nebula
Crescent travelling clockwise, instead
of anti-clockwise, in order to
avoid being inconvenienced by the activities of the Respondent when
passing next to its premises.
[14] Mr Steenkamp
who appeared for the Respondent lamented the lack of authority on the
interpretation of Regulation 319. He, however
referred the court to
the case of Kumalo v Rex 1945(2) PHO 24 N, which dealt with the since
repealed Ordinance NO: 10 of 1937 (Natal)
(the wording of which was
similar to that of Regulation 319) as authority for the proposition
that the words "prevent"
"hinder" or "interrupt"
suggest the actual blockading of the road with no prospects of
passage. He also submitted
that the words "unnecessarily"
was subject to the reasonable man test with the result that it would
be lawful to prevent,
hinder or interrupt traffic provided it was not
wilful or unnecessary. According to him the absence of the word
"unnecessary"
in the relief sought by the Applicant will
subject the Respondent to more rigorous rules of the road than any
other road user.
[15] On the
Applicant's alternative reliance on the common law of nuisance, Mr
Steenkamp submitted that there were nine factors
which are to be
considered in determining whether a particular act amounted to
nuisance. These factors, he argued, also go a long
way in determining
the definition of the term "unnecessary" as used in
Regulation 319. In addressing these nine factors
the Respondent
argued that the Applicant's allegation that, "at times they have
to wait up to 10 to 15 minutes while the Respondent
was engaged in
the unlawful activities", was fictitious; i.e. not supported by
any facts; that it is to be expected, since
the relevant street is in
an industrial area, that trucks and bakkies would be stationary in
the road; that the Court is not to
come to the assistance of an
overly sensitive or thin-skinned person but is to use the measure of
an average property owner with
sound and balanced judgment; that the
Respondent is sincere in running its transport business and
consequently loading and off-loading
is an integral part thereof;
that people would lose their jobs if the Respondent were to be forced
to shut its doors; that, while
denying that its conduct amounted to
nuisance, the Respondent, on occasion when it prevented, hindered or
interrupted the free
flow of traffic, only entered the road with its
forklift when it was safe to do so; and that the Applicant moved into
the area
aware of the Respondent's modus operandi.
[16] Mr Steenkamp,
also drew the court's attention to the time denoted on the
photographs attached to the Applicant's papers which
were allegedly
depicting the unlawful conduct of the Respondent. According to him on
close scrutiny no one delay exceeded a period
of one minute which
consequently calls into application the maxim: de minimis non curat
lex. For this submission Mr Steenkamp,
relied on the judgment of
Fourie J in Bitou Local Municipality v Timber Two Processors CC and
Another
2009 (5) SA 618
(C) at paragraph 32, as authority for the
proposition that the Courts have a discretion to disallow an
interdict where the complaint
is trivial in nature.
[17] The issue that
falls for determination is whether, on the facts, the Applicant has
made out a proper case for a final order
interdicting the Respondent
from in anyway preventing, hindering or interrupting traffic
including the vehicular traffic of the
Applicant in and along Nebula
Crescent, or as Mr Albertus conceded in argument did so "wilfully"
or "unnecessarily".
[18] It is a matter
of common cause between the parties that Nebula Crescent is in an
industrial area in Blackheath Western Cape:
that by agreement amongst
the businesses in Nebula Crescent a boom gate was erected at the
entrance and this has the effect of
regulating vehicular traffic
entering the street: that the street is of a normal width; that the
Respondent load and off-load vehicles,
usually big trucks, in the
street; that for this purpose it used a forklift which has to be
manoeuvred in the road; the residue
of the facts which are in
dispute, i.e. that the Respondent had unlawfully blocked traffic in
Nebula Crescent, can be resolved
by applying the principle
established in Plascon-Evans Paints Ltd v Van Riebeeck Paints (PTY)
Ltd 1984(3) SA 623 (A), namely, that
where there is a dispute as to
the facts a final interdict should only be granted in notice of
motion proceedings if the facts
as stated by the Respondent together
with the admitted facts in the Applicant's affidavit justify such an
order or when a denial
by a Respondent of a fact alleged by the
Applicant is such as not to raise a real, genuine or bona fide
dispute of fact. Adopting
this approach I am of the view that the
issues in this matter are capable of resolution on the paper.
[19] The first port
of call is to analyse the authorities referred to by the parties. The
authorities referred to by Mr Albertus
draw a clear distinction
between, on the one hand, cases involving the common law of nuisance,
and on the other, cases involving
a statute. In Ex Parte Letord: In
re Marcus N.O. & Others 1953 (4) 359 (N) a matter wherein the
Applicant sought and obtained
a declaration which entitled her to the
free and unobstructed use in perpetuity of a service lane and an
order for the demolishing
of or tempering with a corrugated iron
fence erected in this lane, which was adjacent to the back of her
premises and which reduced
the lane from 15 inches at the entrance,
Selke J, drawing heavily on English authorities, held that the
existence at the entrance
to this lane of the brick wall and the
gate, of which the Applicant complained, amounted to a substantial
interference with, or
obstruction of the rights to which the
Applicant is entitled in respect of the lane. What is immediately
apparent is that the facts
of that case are clearly distinguishable
from those of the present matter. There the Court was seized with a
matter relating to
an obstruction of a permanent nature which reduced
and restricted the Applicant's use of the lane (at 362 - 365). In
casu we do
not have a permanent obstruction but one which occurs at
certain intervals. Regrettably this decision, in my view, is of
limited
assistance in the present matter and does not establish in
our law the English principle of drawing a distinction between a
private
as distinct to a public right of way, as Mr Albertus
inferred. On the facts of the case Selke J decided that "to
constitute
a contravention there must be substantial obstruction
against which the court should grant relief to the Applicant."
[20] In the De Jager
matter the Appellant was convicted in the Magistrate's court of the
contravention of Sec 5(11) Act 27 of 1982
in that he had left his car
in a certain street for a period of two hours or more, which was
considered unreasonable. This street
was approximately thirteen
metres wide and there was ample room for other vehicles to pass the
accused's vehicle, though it would
have been necessary for vehicles
travelling on the side of the road where the Applicant's vehicle was
standing to veer off slightly
to the centre of the street. In setting
aside the conviction Gardener J held that:
"In a sense
every vehicle proceeding along a street encumbers it, and obstructs
the free passage along it. It blocks up the
space occupied by it in
the road, and prevents any other vehicle or any foot passenger from
using at the same time this space.
But of course that is not the
meaning in which the words "encumber" and "obstruct"
are used in the sub-section,
for streets are provided for vehicular
traffic. It seems to me that the word "obstruct" may be
paraphrased "unreasonable
hinder or impede."
[21] In the Schmitt
case the Appellant was convicted in the Magistrate's Court of
contravening of the same Section as in the De
Jager matter in that he
wrongfully and lawfully encumbered or obstructed the free passage
along a public thoroughfare by leaving
two vehicles standing thereon.
The conviction was overturned on appeal for lack of sufficient
evidence. In the course of dismissing
the conviction Juta JP on page
13 stated the following:
"I think I must
consider the question of whether the person is making an unreasonable
use of the street and for an unreasonable
purpose, and therefore if a
man, for the purpose of his business, places motor cars outside his
workshop for the purpose of working
on them or of keeping them there
for an unreasonable period until it may suit, him to bring them into
his workshop, then I think
that the motor car is not in itself a
mathematical obstruction, but it is a practical obstruction, and that
the man is unreasonably
using the street and for an unreasonable
purpose."
[22] The De Jager
and Schmitt decisions, involving the provisions of a statute, view an
obstruction of a road to be unlawful only
if it is done in an
"unreasonable" manner. This in my view is a recognition
that it is inevitable that vehicles would
in the normal course and
for various reasons, have to stop in the road and that this may
result in the obstruction of traffic.
In the Schmitt decision an
example was given of a driver stopping in the road to pick up or drop
a parcel. Though that would amount
to an obstruction such an
obstruction was not for an unreasonable purpose. The question, as
Gardner J, pointed out is whether the
obstruction is in such a way as
to amount to something beyond a fair and reasonable use of the road.
It seems that the duration
of the obstruction is also a factor to be
considered in determining whether the obstruction was reasonable. So
too is the manner
in which the obstruction occurred.
[23] Did the
Respondent in casu, by his actions which are the source of complaint
by the Applicant, wilfully and unnecessarily prevent,
hinder and/or
interrupt the free and proper passage of traffic in Nebula Crescent.
[24] I am in full
agreement with the submission by Mr Albertus that the words used to
describe the infringement of Regulation 319
are to be read
disjunctively with the result that any occurrence of a "prevention",
or "hindrance" or "interruption"
alone would be a
sufficient violation of the regulation. But proof of any prevention
or hindrance or interruption alone will not
be sufficient to make the
actions unlawful and in violation of the regulation. To be unlawful
such "interruption", "hindrance"
or "prevention"
must be wilful, alternatively, "unnecessary". What the
legislature intended with these two
words in the context of this
regulation is fundamental and a key to the determination of the
unlawfulness or otherwise of the Respondent's
action.
[25] The National
Road Traffic Act contains no definition of the words "wilful"
and "unnecessary". These words
must accordingly be given
their ordinary grammatical meaning.
[26] It is also
trite that the words used in a statute must be viewed in the broader
context of such a statute as a whole. I, however,
do not propose an
analysis of the words in issue as broadly as to embark on a thesis of
the whole statute within which they are
used. I deem it sufficient,
for present purposes, to briefly state that the National Road Traffic
Regulations 2000, of which Regulation
319 is an integral part, were
promulgated in terms of
Section 75
of the
National Road Traffic Act
93 of 1996
. This section empowers the Minister to make regulation
inter alia regarding the operation of any vehicle on a public road to
better
carry out the provisions of the whole act and the achievement
of its objects.
Regulation 319
is located in
Part I
of Chapter X.
This chapter deals with the rules of the road.
Regulation 304
, for
example, prohibits the stopping of vehicles on a public road
alongside or opposite an excavation, within a tunnel, in
contravention
of a road sign; on the right hand side of the road;
alongside or opposite any other vehicle; or next to a pedestrian
crossing,
except in order to avoid an accident or in compliance with
a road traffic sign or with a direction given by a traffic officer or
for any cause beyond the control of the driver. The same prohibitions
apply to parking in terms of
Regulations 305.
Regulation 306
provides
that the so called emergency vehicles may be stopped anywhere on a
public road as long as this does not constitute an
unnecessary danger
or result in confusion to other road users.
Regulation 320
permits a
traffic officer to remove any vehicle standing on a public road if
the traffic officer is of the opinion that it is likely
to cause
danger or an obstruction to other traffic on such road. Nothing in
the Regulations under Chapter X suggests that vehicles
may not be
stopped on a public road. The conclusion therefore is that a vehicle
may be stopped in the road as long as this is done
in such a manner
as not to cause an unreasonable disturbance of the free flow of
traffic or be a source of danger to other road
users, in particular
vehicular traffic. It is clear in my view that the purpose of the
regulation 319
is to prohibit the wilful and unnecessary clogging of
a road with the resultant disruption of the free flow of traffic. The
whole
chapter within which
Regulation 319
resort is aimed at
facilitating the free flow of traffic on a public road. It does so by
prohibiting certain conduct which may
result in the blockage of a
public road and the disruption of the free flow of traffic thereon.
[27] In the present
case there can be no doubt as to what
regulation 319
prohibits: It
prohibits any person from "wilfully" or "unnecessarily"
preventing, hindering or interrupting
the free and proper passage of
traffic on a public road. As a result the Respondent may be said to
wilfully or unnecessarily prevent,
hinder or interfere with the
ordinary flow of traffic, within the meaning of
Regulation 319
, if
such prevention, hindrance or interference goes beyond a fair and
reasonable use of the road. i.e. it is unreasonable. I accordingly
agree with Mr Steenkamp's submission that vehicles may hinder,
prevent or obstruct a public road as long as this is not done
wilfully
or unnecessarily. In my view whether a prevention, hindrance
or interference is unlawful will depend on whether this was done
wilfully
or unreasonably.
[28] As in the
Schmitt judgment I align myself with the view that the prevention, or
hindering of vehicular traffic would only be
unlawful if it was done
for an unreasonable purpose. It is a common occurrence on our roads
that vehicles are stopped for various
purposes including, loading and
off-loading. Most streets would have a specifically demarcated bay
for these purposes. But as it
is often the case one would find such
bays occupied. This inevitably would force a vehicle to stop, load or
off-load, in the driving
lanes. Whether or not action would be taken
against the driver of the vehicle which had stopped in the driving
lane would depend
upon the circumstances of each case.
[29] The actions of
the Respondent which form the basis of the complaint were not of a
permanent or continuous nature and duration.
They occurred only
during the loading or off-loading of vehicles in the road. How
frequent this occurred is not clear from the
papers. The Applicant's
contention, however, is that they occurred with such frequency, and
duration, sometimes up to 15 minute
at a time, as to cause an
unlawful infringement of its rights justifying protection through an
interdict. I am of the view that
the frequency and intensity of this
alleged unlawful conduct can be determined by resort to the
photographs attached to the Applicant's
papers. Of course the use of
photographic material as evidence, especially where as in this case
their authenticity is not in dispute,
can be of a great probative
value. The Applicant admitted that these photographs were intended to
give content to the averments
in its affidavits and therefore
constituted supplementary evidence. I consequently proceed to analyse
these photographs with a
view of establishing whether they indeed
supplement these averments and provide proof of the alleged unlawful
conduct by the Respondent.
I have in doing so divided these
photographs into three categories: The first category comprises
photographs which display the
dates and times on which they were
shot. The second category is of photographs which were shot from the
side of the road and where
the driving surface is not shown: The last
category, though the driving surface of the road is visible, show no
dates or times
on which they were shot. The last two categories do
not help much in answering the question whether the Respondent
wilfully and
unnecessary blocked the road. I shall therefore focus on
the photographs in the first group.
On page 94 the
Special Utility Vehicle is no longer in the picture. The time however
is still 11:27 am. On page 95 the forklift
is visible in the street
whereas the SUV no longer appear. The same is on page 96 where the
time is reflected at 11:29 am: i.e.
the forklift is visible but there
is no other vehicle which appear to be impeded save for a truck which
is moving away from the
scene. On page 97 at 16:40 pm the forklift is
of appears to be off-loading a truck.
[30] The photos on
JC 14 were shot on 21 January 2011. At 09h13 a forklift, which
admittedly belongs to the Respondent, is standing
unattended in the
photographs on page 91. There is however no vehicle whose passage is
blocked thereby. On pate 92 at 09h14 a driver
is seen on the forklift
which is lifting a load from the truck which is standing on the right
hand side of the photograph. Again
there is no vehicle whose passage
in the road is blocked by the activity. It is a matter of one minute
between the time when the
forklift had no driver and when it is
operated and off-loading the truck on the left hand side of the road.
[31] Moving to page
93 of the record the photograph on this page was shot again on 21
January 2011. In the first photograph at 11h27
the forklift is seen
in the road with a load of what appears to be a white driver. In the
second photograph a motor vehicle with
rear brake lights on appeared
in the road. There is a person in the third photograph whose hand is
held up and appears to be motioning
to the vehicle to stop. On the
next page (page 94) the photograph was taken at 11h27. The vehicle
which had its rear brake lights
on is no longer in any of the
pictures. The conclusion from the time depicted thereon is that the
SUV was unable to proceed on
its way within a minute. On page 95 the
photograph was shot at 11 h28. The forklift is still operational in
the road but there
is no vehicle in site which is hindered thereby.
The same is the case with the photographs on page 96 which were shot
at 11 h29.
[32] On page 97 at
16h40 the forklift appears to be off-loading a truck which is
standing on the incorrect side of the road. But
there appears to be
no vehicle in the road which is obstructed from proceeding by the
activities.
[33] On 2 February
2011 at 15h57 (page 99) the forklift is seen off-loading goods from a
truck which is standing on the incorrect
side of the road. On the
next page (page 100) an Audi vehicle had appeared on the third
photograph in the series. It appears to
be moving away from the
activities where the forklift is involved. These photographs were
shot at 15h58. The Audi vehicle therefore
was able to move in the
road within a minute. There is no photograph showing the forklift
blocking the passage.
[34] I have not been
able to find any series of photographs, with date, time sequences,
showing the road being blocked as alleged
in the Applicant's papers.
[35] The angle from
which the other photographs have been shot do not assist much as they
did not show the driving surface.
[36] I find
therefore that no factual proof came forth from the photographs to
support the averments in the Applicant's papers.
In the circumstances
I find that the Applicant had failed to prove the factual allegations
that the Respondent had wilfully and
unnecessarily blockaded the free
flow of traffic in Nebula Crescent, especially for any duration of
time as to call for this court
to intervene.
[37] I turn my
attention to the contempt proceedings. Contempt of court proceedings
permits a private litigant who has obtained
a court order requiring
an opponent to do or not to do something to approach the court again,
in the event of non-compliance for
a further order declaring the
non-compliant party in contempt of court, and imposing a sanction.
[38] The test
whether disobedience of a civil order constitutes contempt is whether
the breach was committed deliberately and mala
fide while mere
non-¬compliance did not necessarily constitute contempt.
[39] The Respondent
contended that the order in question, as it stood, was not clear. The
Respondent argued that the meaning of
the terms "preventing,
hindering or interrupting the true and proper passage of traffic"
had never been tested in isolation,
i.e. whether it means complete
obstruction or partial obstruction and whether it means unnecessary
obstruction.
[40] I find that
there is merit in the Respondent's argument. This is confirmed by the
fact that the Applicant itself sought a final
order which is
different in its terms to the interim one. It requested the insertion
of the word "wilfully" in the final
order it sought. It did
so because it found the interim order to be too wide in its terms.
[41] I am of the
view that the Applicant's request for the final order to be worded
differently to the interim one is an indication
that the latter was
couched in terms which were not clear. While I am mindful that a
Respondent cannot ignore a court order because
the basis upon which
it was obtained may be open to attack and the order stands until it
is set aside or varied upon a proper application
to court it remains
valid and enforceable. [Heg Consulting Enterprises (Pty) Ltd and
others v Siegwart and others 2000(1) SA 507
(C) at 518 C-D], I am of
the view that a failure to comply with an order which is too wide in
its terms, does not necessarily show
any mala fides on the part of
the Respondent. A failure to comply may be occasioned by the wide
terms of the order. This may have
been the case in this matter.
[42] If that was the
case the Respondent would neither have been wilful or mala fide in
continuing with their operation because
the interim order was couched
in terms which were wide and which may have had absurd consequences
if strictly adhered to. It is
inconceivable that the order intended
to prohibit the Respondent from in any way (including for legitimate
purposes) preventing,
hindering or interrupting traffic.
[43] The conclusion
I have arrived at, therefore, is that on the facts of this case the
Applicant has failed to establish a case
for this court to confirm
the interim order in its original terms nor to grant it on the terms
suggested in argument by Mr Albertus.
It follows that for the same
reasons the rule nisi in the contempt proceedings should also be
discharged.
[44] This judgment
however is not to be construed as a licence to the Respondent to turn
Nebula Crescent into its shunting yard
or operational area. It should
not, in anyway be construed as authorizing the wilful and unnecessary
obstruction of vehicles using
Nebula Crescent.
[45] The order I
make therefore is the following:
45.1. The interim
order is hereby discharged;
45.2. The rule nisi
in the contempt proceedings under Case No 5176/2011 is discharged;
and
45.3. The Applicants
are ordered to pay the costs in both applications.
DOLAMO, AJ