Banakoma Fleet and Shuttle CC and Others v Super Group Africa (Pty) Ltd (10372/2016) [2016] ZAGPJHC 324 (6 June 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 10372/2016.

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED.

6/6/2016

In the matter between:

BANAKOMA FLEET AND SHUTTLE CC

First Appellant

ENIOS PHINEAS MOENG

Second Appellant

THABANG MOENG

Third Appellant

and

SUPER GROUP AFRICA (PTY) LTD

Respondent

JUDGMENT

MATOJANE J

[1] On 18 May 2016 I dismissed the appellant’s application for leave to appeal and granted an order committing the second and third appellant to prison for contempt of court for failing to comply with the court order granted on 1 April 2016. I undertook to provide reasons for that decision. Before dealing with those issues I shall set out relevant background facts.

Background

[2] On or about 1 April 2015 respondent and first appellant entered into a full maintenance lease agreement in terms whereof respondent leased 23 motor vehicles to first appellant.

[3] On 1st March 2016 this Court per Wright J granted an order, on an urgent basis in terms whereof respondent was inter alia, granted an order for the immediate return of all its motor vehicles leased to and in the possession of the first and second respondents and/or its employees and/ or anyone appointed by it or acting as its agent.

[4] The third appellant is the sole director of the first appellant and the second appellant runs the business of the first appellant.

[5] Pursuant to the Court Order and after repeated demands appellants returned 9 of the 23 motor vehicles to the respondent in a period of two weeks following the Court order and refused to return the remaining 14 motor vehicles.

[6] Respondent accepted appellants tender to collect the motor vehicles from their existing locations and wherever that may be. Appellants refused to disclose the locations and whereabouts of the motor vehicles to the respondent despite the Court Order.

[7] On the 29 March 2016 respondent approached this court on urgent basis for this Court to hold the appellants in contempt of the Court’s order and also seeking the return of its motor vehicles in terms of the Order.

[8] The appellants consented to an order in terms whereof they agreed this Court directed and ordered them to inter alia, do all things necessary to immediately deliver and return all the respondent’s motor vehicles to premises and or locations and or addresses as directed by the respondents and to immediately disclose to the respondent the precise location and whereabouts of the respondent’s vehicles.

[9] The above ordered of the 29 March 2016 was replaced on the 1 April 2016 with an Order directing the appellants to return at their costs, motor vehicles listed in the Order and in the event that any of the motor vehicles not being returned to the respondent, the sheriff of the Court was ordered and directed to immediately commit the second and third respondent to imprisonment for a period of 30 days for contempt of Court.

[10] Having consented to the above order, appellants brought an application for leave to appeal the entire order of the 29 March 2016 alleging inter alia:

1. The learned judge erred in granting the final order, when it is common cause and trite that the Application had not been served on the respondents prior to the matter having been heard, this is in breach of the Applicant’s common law rights to audi altem partem and / or its rights under Chapter 12(1)(a) and / or Chapter 34 and / or Chapter 35(3) of the Constitution of South Africa.

2. The Honourable Court erred in finding that a sufficient case had been advanced by the Applicant to overcome the onus, for the granting of the Order by this honourable Court.

3. The Honourable Court erred in finding that the Applicant had discharged the onus. …..

[11] In my view, the application for leave to appeal is mala fide and a deliberate stratagem by applicant to continue deriving financial and commercial benefits from sub-leasing respondent’s motor vehicles to its own customers while not paying respondent. The application is fatally defective for the following reasons: -

a. A certain Arthur Nieklaassen, purported to appear on behalf of the appellants, he informed the court that he was not an advocate nor an attorney with a right of appearance in the High Court. He could not produce a resolution authoring him to bring the application for leave to appeal nor to act on behalf of the company.

b. The notice of application for leave to appeal was not signed even though it bears the names of a firm of attorneys which raises doubt whether the said attorneys were aware of the application.

Contempt of court

[12] The object of this type of proceedings, which is concerned with the wilful refusal or failure to comply with an order of court, is an imposition of a penalty in order to vindicate the dignity, repute or authority of the court consequent upon the disregard of its order[1]. The penalty may take the form of committal to jail, a suspended sentence or the imposition of a fine[2]. Cameron JA in Fakie NO v CCII Systems (Pty) Ltd[3] summarised the law relating to contempt of court proceedings as follows:

The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional

scrutiny in the form of a motion court application adapted to constitutional requirements.

The respondent in such proceedings is not an accused person, but is entitled to analogous protections as are appropriate to motion

proceedings.

In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides beyond reasonable doubt.

But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.

A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.

[13] Once the applicant proves the three requisites, namely the court order, service and non-compliance, unless the respondent provides evidence raising a reasonable doubt as to whether non-compliance was wilful and mala fide, the requisites of contempt will be established[4].

[14] A person can be in contempt of court even if the order involved has not been served on him or her, as long as he or she had knowledge of the order. See Uncedo Taxi Association v Maninjwa and others[5]. The appellants had knowledge of the order granted by Wright J on the 1 March 2016 as they opposed the matter and were legally represented.

[15] Secondly, the copy of my order of the 29 March 2016 and the order of the 1 March 2016 were served by the Sheriff on all the appellants on the 29 March 2016.

[16] The allegations that appellants were in contempt of court and should be committed were raised on the papers before the consent order was made an order of court. The consent order makes it clear that appellants will be committed to prison should they fail to comply with the court order. The appellants have elected not to explain their actions and have not complied with the Court Order.

[17] I am satisfied that respondent has proved that applicants had knowledge of the various orders and its terms; that their conduct was wilful and in contemptuous disregard for the Court Order and from the nature of their conduct, it can be inferred that applicants’s conduct was mala fide.

[18] The rest of the grounds for leave to appeal are not bona fide as the appellants were present in court and agreed to the order. I did not consider the merits of the application.

[19] For the above reasons, I dismissed the application for leave to appeal and committed second and third appellant to prison for contempt of court.

COUNSEL FOR THE APPLICANT:

INSTRUCTED BY:

COUNSEL FOR THE RESPONDENTS: Adv Wayne Pocok

INSTRUCTED BY: Fluxmans

DATE OF HEARING:

DATE OF JUDGMENT: 06 June 2016

[1] Ferreira v Bezuidenhout 1970(1)SA 550 at 552

[2] Protea Holdings Ltd. v Mriwt 1978 (3) SA 865 (W) at 872 D_E

[3] 2006(4) SA 326 (SCA) at page 344, par [42}

[4] Fakie NO v CCII Systems (Pty) Ltd at para [23] and para [41]

[5] 1998(3)SA 417,425G-H