Government Employees Medical Scheme and Others v Mokoditoa (32165/2020) [2020] ZAGPPHC 786 (9 September 2020)

IN THE HIGH COURT OFSOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number:32165/2020

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES:NO

DATE:09.09.2020

In the matter between:

THE GOVERNMENT EMPLOYEES MEDICALSCHEME FIRST APPLICANT

OR BOJOSI OLEHILE STANLEY MOLOABI

SECOND APPLICANT

MPASHA ISHMAEL MOGAPI

THIRD APPLICANT

and

ALFRED MOKODITOA

RESPONDENT

JUDGMENT

KUBUSHl J

This judgement is handed down electronically by circulating to the parties’ representatives by email and by uploading on Caselines.

[1] The applicants have approached the court on urgency for an order that the respondent Alfred Mokoditoa, be found in contempt of the order of this court granted by Ranchod J on 27 November 2019 by virtue of the respondent having published defamatory statements of and concerning the applicants via email and Twitter during the period 19 March 2020 to 20 July 2020, in contravention of the said court order. The applicants also seek an order committing the respondent to a period of imprisonment as to be determined by the court alliteratively such other sanction or other relief as the court may deem appropriate.

[2] The respondent was interdicted and restrained by this court (per Ranchod J) on 27 November 2019, from publishing defamatory allegations of and concerning the applicants (“the defamation order”). The respondent was further found by the court (per Mnqibisa-Thusi J) on 16 March 2020 to be in contempt of the defamation order. His leave to appeal against the defamation order was dismissed with costs on 14 July 2020by Ranchod J. The respondent as, subsequently, petitioned the Supreme Court of Appeal for leave to appeal the defamation order.

[3] It is alleged by the applicants that the respondent, despite the aforesaid defamation order, maliciously continued, and continues, to exhibit absolute contempt for the authority and order of the court including the applicant's rights, in that he has continued with his unbridled and widespread publication of defamatory matters concerning the applicants.

[4] The respondent is vehemently opposing the application on the merits and has in addition raised several points in limine. Of the points taken by the respondent in limine I think the one relating to non-compliance with the provisions of s 18 of the Superior Courts Act 10 of 2013 (“the Superior Courts Act”), is dispositive of this application, for the reasons that follow here under.

[5] Section 18 (1) of the Superior Courts Act provides that unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

[6]In terms of s 18 (5) of the Act, a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.

[7] From the aforesaid it clear that a decision of the court becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules. It is also perfectly clear that the filing of an application for leave to appeal or noting of an appeal with the registrar automatically suspends the execution of a judgment concerned pending the decision of the application or appeal.

[8] The respondent contends that since he has petitioned the Supreme Court of Appeal for leave to appeal, the contempt order obtained against him has now been suspended pending the determination of that application. He further contends that the suspended judgment cannot be carried out and no effect can be given thereto, except with the leave of the court which granted the judgment.

[9] However, the applicants’ argument is that the provisions of section 18 do not apply to contempt of court orders. such orders. according to the applicants. must be carried out even if they are wrong. The applicants’ counsel supports his argument by the decision of the court of the Supreme Court of Appeal in Clipsal Australia (Pty) Ltd and Others v GAP Distributors and Others[1] wherein the High Court, in exercising its discretion, had stayed a contempt application pending an application for the review of the registration of the design which was the subject matter of the contempt application. On appeal to the Supreme Court of Appeal, was held that the High Court’s exercise of that discretion in favour of the respondents was not justified in that the respondents were interdicted from infringing a registered design, and even if they were of the opinion that the order was wrong, they were nevertheless obliged to obey it until it was set aside.

[10] Counsel in my view, misconstrues the facts and findings of the court in Clipsal Australia . Clipsal Australia revolved around an application for a stay of proceedings rather than the suspension of the execution of an order of court pending application for leave to appeal or appeal.

[11] In Clipsal Australia, the Supreme Court of Appeal was dealing with an appeal against a judgment from the High Court, Johannesburg, in terms of which that court [High Court] had, on application by the respondents, stayed a contempt application by the appellants pending the outcome or a review application of the respondents(“the first application”). The contempt application was for an order holding the respondents (in the appeal) guilty of contempt of court in that by importing and disposing of certain single and double electrical sockets they disobeyed an order of court.

[12] The contempt of court application emanated from the decision of the Supreme Court of Appeal, which replaced an order of the High Court, Johannesburg, pursuant to an application by the appellants as the proprietor and local exclusive licensee respectively of registered design A96/0687, against the respondents. The order interdicted the respondents from infringing registered design A96/0687 by making, importing, using or disposing of certain Lear G- 2000series single and double electrical sockets.

[13] Subsequent to the Supreme Court of Appeal order. the shareholder and managing director or one of the respondents. caused its close corporation to be converted into a company of which he became the sole shareholder and director (“the new company”). Thereafter. the new company applied to the High Court Pretoria for an order (i) (a) declaring that the word 'original' ins 14 (1) (a) (ii) of the Designs Act 195 of 1993 (“the Designs Act”) has a different meaning to the one ascribed to it by the Supreme Court of Appeal in the first application; alternatively,(b) declaring that s 14 (1) (a) alternatively s 20 (1) 0f the Designs Act is inconsistent with the constitution; alternatively ,(ii) revoking design A96/0697 (“the second application”).

[14] Prior to the Supreme Court of Appeal’s order against the respondents, the new company was not in the business of importing and selling electrical sockets in South Africa but subsequent to the order it started importing and selling such sockets. This gave rise to the contempt application. Upon application by the appellants the second application was stayed pending the final determination of the contempt application.

[15] In yet a further application instituted by the new company in the High Court, Pretoria against the Registrar of Designs, and the appellants, the new company applied for the review of the ‘registration of application A96/0687 in Part A of the Register [of designs] without a classification having been recorded in the Register, in contravention of s 15 (1) of the Designs Act' (“the review application”).

[16] At the hearing of the contempt application the respondents argued in limine that it should be stayed pending the determination of the review application. The appellants argued the contrary. The High Court, exercising its discretion considered it to be in the interest of justice to do so. It thereupon stayed the contempt application pending the determination of the review application on the basis that it was indeed in the interests of justice to do so. On application the High Court granted the appellants leave to appeal its decision.

[17] On appeal to the Supreme Court of Appeal, that court found the High Court to have misdirected itself when it stayed the contempt of court application pending the review application and decided in favour of the appellants. The court based its findings on the reason that since the respondents were interdicted from infringing registered design

A96/0687, the outcome of the review application was irrelevant to the question of whether the respondents were acting in contempt of court, the court order granted against the respondents had to be obeyed even if it was wrong as suggested by the respondents.

[18] It is quite clear from the aforesaid that what was at issue in Clipsal Australia was the stay of the contempt application pending the outcome of the review application. The court in Clipsal Australia finding that 'the outcome of the review application is irrelevant to the question whether the respondents were acting in contempt of court',[2] is correct. There was no nexus between the two cases which would have made the High Court to suspend the application before the review application could be heard. Similarly, in this instance. what is at issue is whether the filing of the Petition for leave to appeal suspends the execution of the contempt of court order. It is therefore, quite clear that Clipsal Australia is no authority to the proposition that a contempt of court order must be executed even where an appeal in respect of that contempt order is pending

[19] It is common cause that the respondent has filed a Petition with the registrar of the Supreme Court of Appeal for leave to appeal the contempt order. It follows. therefore, that the execution of the contempt order has been suspended and cannot be carried out pending the decision of the application for leave to appeal. The applicants have not applied to uplift the suspension and can therefore not put that order into operation.[3] The respondent can as such, not be said to have been in contempt of a court order that is not in operation.

[20] As I have said earlier in this judgment, this point alone is dispositive

of this application. The application ought therefore to be dismissed with costs.

[21] Consequently. the application is dismissed with costs including costs of two counsel.

E.M KUBUSHI

JUDGE OF THE HIGHCOURT

Appearance:

Applicant’s Representative :

Adv. A.Bava SC

Adv.E. Kromhout

Applicant’s Attorneys :Gildenhuys Malatji Inc.

First Respondent’s Representative :Adv.M

Kufa

Adv .N. Moropene

First Respondent’s Attorneys :Machaba Attorneys.

Date of hearing :

27 August 2020

Date of Judgment

:09 September 2020

[1] 2010 (2) SA 289 (SCA).

[2] At para 21.

[3]Section 18 (3) of the Superior Courts Act.