Drakenstein Municipality v Frater NO and Others (12519/2011) [2011] ZAWCHC 354 (11 August 2011)

Drakenstein Municipality v Frater NO and Others (12519/2011) [2011] ZAWCHC 354 (11 August 2011)

The court found that the respondents' defence that the order was vague and unenforceable was contrived and without merit. The order was clear and unambiguous, prohibiting the respondents from causing or permitting the operation of the Primi Piatti restaurant until statutory approvals were obtained. The respondents, as trustees and lessors, continued to permit the unlawful operation of the restaurant despite pending litigation and the dismissal of their appeals. Their reliance on legal advice was inadequately substantiated and did not negate the willfulness of their conduct. The respondents' belief that non-compliance was justified lacked reasonableness, and their actions were found to be...

Citation
[2011] ZAWCHC 354
Parties
Applicant: Drakenstein Municipality; Respondent: Gerard Frater N.O.; Respondent: Yvette Frater N.O.; Respondent: Jacobus Petrus Rossouw N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 August 2011
Case Number
12519/2011
Procedural Posture
Contempt Application / Order on Contempt and Directions for Sanction
Outcome
Respondents declared to be in contempt of the order made on 9 December 2010. Sanction postponed for 20 days to allow compliance. Respondents ordered to show cause on 12 September 2011 why sanction should not be imposed. Costs awarded against respondents jointly and severally, including costs of two counsel.
Judges
A Le Grange
Legal Topics
Contempt of Court, Interdict, Enforcement of Court Orders, Zoning and Land Use, Lease Disputes
Civil Procedure Land and Property Contempt of Court Interdict Enforcement of Court Orders Zoning and Land Use Lease Disputes

Case Brief

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Parties

Drakenstein Municipality

Applicant

Gerard Frater N.O.

Respondent

Yvette Frater N.O.

Respondent

Jacobus Petrus Rossouw N.O.

Respondent

Procedural Posture

Contempt Application / Order on Contempt and Directions for Sanction

Legal Issues

  1. 1 Whether the respondents are in contempt of the court order granted on 9 December 2010 under case numbers 6214/2010 and 19763/2010.
  2. 2 Whether the respondents' defence that the order is vague and unenforceable is valid.
  3. 3 Whether the respondents acted willfully and mala fide in breaching the order.

Ratio Decidendi

The court found that the respondents' defence that the order was vague and unenforceable was contrived and without merit. The order was clear and unambiguous, prohibiting the respondents from causing or permitting the operation of the Primi Piatti restaurant until statutory approvals were obtained. The respondents, as trustees and lessors, continued to permit the unlawful operation of the restaurant despite pending litigation and the dismissal of their appeals. Their reliance on legal advice was inadequately substantiated and did not negate the willfulness of their conduct. The respondents' belief that non-compliance was justified lacked reasonableness, and their actions were found to be...

Court Disposition

Respondents declared to be in contempt of the order made on 9 December 2010. Sanction postponed for 20 days to allow compliance. Respondents ordered to show cause on 12 September 2011 why sanction should not be imposed. Costs awarded against respondents jointly and severally, including costs of two counsel.

Orders

  • The respondents are declared to be in contempt of the order made on 9 December 2010 by this Court under case numbers 6214/2010 and 19763/2010.
  • Imposition of an appropriate sanction is postponed for 20 days from the date of this order to allow respondents to comply with their obligations under paragraph 2 of the order.