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[2010] ZAWCHC 85
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Heydenrych Cars CC t/a Joe's Cars Sales v Provincial Commissioner, South African Police Services, Western Cape and Another (A432/09) [2010] ZAWCHC 85 (21 April 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE No: A 432/09
In the matter of
HEYDENRYCH CARS CC t/a Joe's Cars Sales
Appellant
and
THE PROVINCIAL COMMISSIONER, SOUTH AFRICAN
POLICE SERVICES, WESTERN CAPE First Respondent
THE STATION COMMANDER, SOUTH AFRICAN
POLICE SERVICES, STIKLAND Second Respondent
JUDGMENT DELIVERED : 21 APRIL
2010
MOOSA, J:
Introduction:
[1] On 18 March 2008
Allie J,
inter alia,
made the
following order:
"Third Respondent shall allocate a new engine number and chassis number to
the vehicle subject to due compliance with regulation 56
of the National Traffic
Regulations, 2000."
[2] In pursuance to such order, Appellant brought an application for contempt
of court against Third Respondent on the basis that
he has failed to comply with
such order. On 13 March 2009,
Matojane, AJ
dismissed the application on
the ground that the appellants had failed to "to prove the requisites of
contempt, more particularly
wilfulness and
mala fides
beyond reasonable
grounds".
[3] The appellant comes on appeal to the full bench of this division against
the judgment of
Matojane, AJ.
In the absence of
Matojane, AJ,
leave to appeal was granted by
Zondi, J
on 8 June
2009.
The Contempt of Court:
[4] At the commencement of the hearing before us, Adv
Moller,
who
appeared for the appellant, indicated that the object of the contempt
proceedings was essentially to obtain compliance with the
order of
Allie,
J.
[5] It is common cause that Third Respondent has not complied with the court
order of
Allie, J.
His justification was that the order was conditional
upon Appellant complying with regulation 56 and that it had failed to comply
therewith in that it had not established that it was the title holder of the
vehicle as defined in the regulations.
[6] The Appellant, on the other hand, contended that, as a matter of law and
fact, the order of
Allie, J
implies that it was the title holder because
absent of such implication,
Allie, J
would not have made the order
compelling Third Respondent to allocate a new engine and chassis number.
Interpretation of the Court Order:
[7] The issue, therefore,
revolves around the interpretation of the court order of
Allie, J.
It is
common cause that
Allie, J
did not make a formal finding that the
Appellant was the title holder of the vehicle in question. However, the court
a quo
in finding in favour of the Third Respondent said the
following:
"In my view the mischief that the legislature sought to prevent in
requiring a title holder to tender the vehicle in terms of Regulation
56(4) is
to ensure that a thief after tampering with an engine and/or chassis number will
not be able to tender the vehicle to the
police for new numbers. It follows that
Third Respondent is correct in insisting that the applicant must satisfy it by
means of accurate
records that it is the lawful title holder of the engine
and/or chassis before it is issued with new numbers in terms of
Regulation
56."
[8] It is clear from the above passage that the court
a quo
found
favour with the interpretation placed by Third Appellant on the court order of
Allie, J.
That being so, can one say that the interpretation placed by
Third Respondent is wrong, unreasonable or not
bona fide?
If that is the
case, can Third Respondent be guilty of contempt of court?
The Definition of Contempt of Court:
[9] Civil contempt has been
defined as the wilful and
mala fide
refusal or failure to comply with an
order of court
(Consolidated Fish Distributors (Pty) Ltd v Zive
1968 (2)
SA 517
(C);
Clement v Clement
1961 (3) SA 861
(T) at 866 and
HoltZ v
Douglas & Associates (OFS) CC
1991 (2) SA 797
(O) at 802B. Consistent
with such definition the test for contempt of court has been set out in
Fakie
N.O. v CC11 Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at para
[9]
as
follows:
"The test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed 'deliberately
and mala
fide'. 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. Even a refusal to
comply that is objectively unreasonable may be
bona fide (though unreasonableness could evidence lack of good faith."
(Reference to authorities has been omitted.)
The Onus of Proof:
[10] The onus is on the applicant (and in this case on the Appellant) to
establish the requisites of contempt, in particular the elements
of wilfulness
and
mala fides
beyond reasonable doubt. The applicant is assisted in that
regard by the evidential burden which is placed on the respondent (and
in this
case on the Third Respondent) to show, on a balance of probabilities, that the
refusal and/or failure to comply with the
court order is not wilful or
mala
fide
(Fakie N.O. v CC// Systems (Pty) Ltd
(supra)
at para [22]
and
Clement v Clement
(supra)
at 866A).
The Finding:
[11] In view of the different interpretations given to the import and effect
of the court order of
Allie, J,
and Third Respondent having acted in
pursuance to his particular interpretation by insisting that the Appellant
furnish proof that
it is the title holder of the vehicle, I cannot conclude that
Third Respondent's failure to comply with the court order of
Allie, J
was
deliberate and
mala fide.
In my view the Appellant has not succeeded in
showing, beyond reasonable doubt, that Third Respondent is guilty of contempt of
court.
The Additional Relief:
[12] However, that is not the end of the matter. The Appellant in its papers
also asked for additional relief, namely:
"(d) Dat die derde respondent beveel word om onverwyld, maar nie later as
15 Augustus 2008 'n nuwe voertuigidentifikasienommer (VIN-nommer)
en enjinnommer
ten opsigte van die voertuig met voertuigregisternommer PCW456A en
registrasienommer CF70733, behorende aan die applikant,
uit te
reik."
[13] The relief sought by the Appellant in its papers was couched in the form
of a rule
nisi
and in prayer 3, Appellant asked that the order in terms
of prayer (d) be made an interim order pending the return date. It does not
appear that the matter was handled on an interim basis. The order made appeared
to have been final in form. It also appears that
the relief sought in paragraph
(d) got lost in the process. Although there is a nexus between the relief sought
in prayer (d) and
prayer (c), prayer (d) can also stand on its own because it
was also coupled to an interim order. The relief sought in prayer (d)
is in the
form of an interdict.
[14] The court
a quo,
after dismissing prayers (a), (b) and (c), which
essentially dealt with the relief in respect of the contempt proceedings,
omitted
to deal with the relief sought in prayer (d) in its final form. This
court can either refer the matter back to the court
a quo
to deal with
the matter or this court can deal with the matter. I think that this court is in
as a good a position as the court
a quo
to deal with the matter. All the
facts upon which a decision has to be made are before us. Unnecessary delay will
ensue should we
refer the matter to the court
a quo.
In the
circumstances, I am of the view that it would be appropriate and proper for this
court to adjudicate upon the issue.
Evaluation:
[15] It appears that the issue of the title holder has reached an impasse
between the Appellant and the Third Respondent. It is common
cause that
Appellant is the registered owner of the vehicle as evidenced by the
registration certificate. The uncontested evidence
is that the body shell of the
vehicle was replaced as far back as 1995 and the chassis plate was transposed to
the new body shell.
The vehicle was sold and transferred onward to five
different owners and eventually acquired by the Appellant in June 2006. The
Appellant
thereafter replaced the engine with another second hand
engine.
[16] When the vehicle was taken to Third Respondent for police clearance, it
was seized in terms of section 21 read with
section 20
of the
Criminal Procedure
Act 51 of 1977
. The matter was submitted to the Director of Public Prosecutions,
who declined to prosecute the matter. The Appellant has placed
whatever facts
and information were available to it at the disposal of Third Respondent in
order to substantiate that it is the lawful
owner of the vehicle. These facts
and information have not been placed in dispute or gainsaid by evidence to the
contrary.
[17] In my view it is only just and fair that an interdict be granted, in
terms of prayer (d), in order to regularise the title-holdership
of the vehicle
and that Third Respondent be ordered to issue new chassis and engine numbers in
respect of the vehicle with register
number, PCW 456A and registration number CF
70733 belonging to the Appellant.
The Order:
[18] In the result the following order should be made:
"The appeal is upheld in part, and dismissed in part. The order of the Court
a quo
is set aside, and in its place is substituted the following
order:
The relief sought by the Applicant in para's 2(a), (b) and (c) of its Notice of
Motion is
refused;
(2)
The
Third Respondent is ordered immediately to issue new chassis and engine numbers
in respect of the Applicant's motor vehicle with
register number PCW 456A and
registration number CF 70733;
(3) The Respondents
are ordered to bear the costs of the application jointly and severally, the one
paying the others to be absolved."
No order is made as to the costs of the appeal.
E. MOOSA
Thring, J: I agree and it is
so ordered.
W. G
THRING
Veldhuizen, J: I
agree.
A.H. VELDHUIZEN