Mellet v Kampherbeek and Another (3093/2013) [2014] ZAFSHC 29 (13 March 2014)

Mellet v Kampherbeek and Another (3093/2013) [2014] ZAFSHC 29 (13 March 2014)

The court found that the order made by agreement was authoritative and compulsive, obliging the first respondent to deliver the specified documents. The respondent's argument that the order only recorded reciprocal contractual obligations was rejected. The order was sufficiently clear and specific to inform the respondent of his obligations. The respondent's explanation for non-compliance was not reasonably possibly true, as he could have indicated the non-existence of documents or refused to agree to the order. The only reasonable conclusion was that the documents existed and were available at the time of the order. The respondent's conduct was found to be wilful and mala fide,...

Citation
[2014] ZAFSHC 29
Parties
Applicant: Blucher Hauman Mellet; Respondent: Carl Frederick Kampherbeek; Respondent: Grand Palace Trading 217 (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 March 2014
Case Number
3093/2013
Procedural Posture
Contempt Application / Opposed Motion for Contempt of Court Order
Outcome
First respondent found guilty of contempt of court order; sentenced to a suspended fine or imprisonment; ordered to comply with the original order and pay costs on an attorney and client scale including costs of two counsel.
Judges
Lekale
Legal Topics
Contempt of Court, Settlement Agreement as Court Order, Ad Factum Praestandum, Wilful Non Compliance, Costs Punitive Order
Civil Procedure Commercial and Corporate Contempt of Court Settlement Agreement as Court Order Ad Factum Praestandum Wilful Non Compliance Costs Punitive Order

Case Brief

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Parties

Blucher Hauman Mellet

Applicant

Carl Frederick Kampherbeek

Respondent

Grand Palace Trading 217 (Pty) Ltd

Respondent

Procedural Posture

Contempt Application / Opposed Motion for Contempt of Court Order

Legal Issues

  1. 1 Whether the court order made by agreement is capable of sustaining contempt proceedings.
  2. 2 Whether the first respondent's failure to comply with the order was wilful and mala fide.
  3. 3 Whether punitive costs and employment of two counsel are justified.

Ratio Decidendi

The court found that the order made by agreement was authoritative and compulsive, obliging the first respondent to deliver the specified documents. The respondent's argument that the order only recorded reciprocal contractual obligations was rejected. The order was sufficiently clear and specific to inform the respondent of his obligations. The respondent's explanation for non-compliance was not reasonably possibly true, as he could have indicated the non-existence of documents or refused to agree to the order. The only reasonable conclusion was that the documents existed and were available at the time of the order. The respondent's conduct was found to be wilful and mala fide,...

Court Disposition

First respondent found guilty of contempt of court order; sentenced to a suspended fine or imprisonment; ordered to comply with the original order and pay costs on an attorney and client scale including costs of two counsel.

Orders

  • The first respondent is guilty of contempt of the order issued on 6 August 2013 under case number 3093/2013, specifically order number 3.
  • The first respondent is fined R10,000.00 or 4 months imprisonment, suspended for four years on condition of no further contempt during the suspension period.