Mostert and Others v Nash (26206/20) [2021] ZAGPJHC 897 (30 November 2021)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 26206/20

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

30.11.21

In the matter between:

ANTONY LOUIS MOSTERT First Applicant ANTONY LOUIS MOSTERT (In his capacity as curator of the Third Applicant and in his capacity As liquidator of the Fourth Applicant) Second Applicant SABLE INDUDTRIES PENSION FUND (Under curatorship) Third Applicant POWER PACK PENSION FUND (In liquidation) Fourth Applicant And SIMON JOHN NASH Respondent

JUDGMENT

KEIGHTLEY, J:

INTRODUCTION

1. This is an application for leave to appeal a judgment and order handed down by me on 26 April 2021 against the present applicant, Mr Nash. I made the following order:

"1. The respondent is in contempt of the Order of the Honourable Judge Matojane, dated 14 August 2018 under case number 3466/2017 (the Matojane J Order).

2. The respondent is committed to a period of imprisonment of 2 months, which committal is suspended on condition that the respondent does not disseminate, directly or indirectly, false and defamatory allegations pertaining to the first and second applicants, or in any other manner breach the Matojane J Order.

3. The respondent is directed to pay the costs of the application, including the costs of two counsel, on the attorney and client scale."

2. Under s17(1)(a) of the Superior Courts Act, leave to appeal may only be given where the Judge is of the opinion that the appeal (i) would have a reasonable prospect success or (ii) there is some other compelling reasons why the appeal should be heard, including conflicting judgments on the matter under consideration. The test for granting leave under this section is well settled. The question is not whether the case is arguable or another court may come to a different conclusion (R v Nxumalo 1939 AD 580 at 588). Further, the use of the word "would" in s 17(1)(a)(i) imposes a more stringent and vigorous threshold test than that under the previous Supreme Courts Act, 1959. It indicates a measure of certainty that another court will differ (Mont Cheveaux Trust v Goosen [20014] SALCC 20 (3 November 2014); Notshokuvo v S [2016] ZASCA 112 (7 September 2016)). The Mont Cheveaux test was endorsed by a Full Court of this Division in the unreported case of Zuma & Others v the Democratic Alliance & Others (Case no: 19577/09, dated 24 June 2016).

3. The grounds for leave to appeal are contained in paragraphs 1 - 17 of the Notice of Application for Leave to Appeal. It is unnecessary to set them out in full. By and large, Mr Nash takes issue with the substance of my analysis, and findings, in respect of each of the statements that I found to have been false and defamatory.

4. Although not included as a ground of appeal, at the hearing Mr Nash sought to advancea new contention, under the rubric of s 17(1)(a)(ii). He argued that in light of the recent decision of the Constitutional Court in Secretary, Judicial Commission of Inquiry Into Allegations of State Capture v Zuma and Others 2001 (5) SA 327 (CC), it would be in the interests of justice to grant Mr Nash leave to appeal.

5. What Mr Nash submits is that: "... to prevent further inroads into the section 35(3) suite of rights, ... it is constitutionally imperative that the right of appeal in subsection 35(3)(0) be preserved and applied in cases of civil contempt." That section gives an accused person a "right of appeal to, or review by, a higher courf'. Mr Nash says further that in a case like this, where there is an avenue of appeal to a higher court: "It would be unconstitutional to deny (Mr Nash) a right of appeal, even if he is not an accused person as envisaged in section 35(3). His rights are grounded in section 35(3) and section 12(1)." The latter section guarantees the right not to be deprived of one's freedom arbitrarily or without just cause. Mr Nash contends, for this reason, that it would be in the interests of justice to grant leave to appeal in this case.

6. The implication of his submissions is that in every case where a respondent in civil contempt proceedings seeks leave to appeal in circumstances where a custodial

sentence is imposed (even where, as here, the order is coercive in nature) , a High Court would be constitutionally enjoined to grant leave to appeal on the basis that this constitutes a "compelling reason" to do so. In other words, that as of right, a person in the position of Mr Nash must be granted leave to appeal.

7. On my reading of the Zuma judgment, there is no indication that this should be so. Nor can it be gleaned from the case law relied on by Mr Nash. In fact, the case law establishes that a respondent facing the prospect of committal for contempt in civil proceedings is not an accused person under section 35 of the Constitution (Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at paras 24-5). It was held in Fakie that notwithstanding this, sucha respondent is entitled to similar procedural protections, at least on the basis of section 12(1) of the Constitution. It was on this basis that the SCA in that case adopted the beyond reasonable doubt standard of proof. But none of these pronouncements suggests that the procedural protections envisaged should extend to an appeal being granted as of right.

8. In Zuma, Khampepe J, writing for the majority, recognised the importance of the protection of the section 12(1) rights of a civil contemnor, but stated that: "This court has, on numerous occasions, confirmed that this right entails both substantive and procedural protections. On the procedural front, the right requires that no one may be deprived of physical freedom unless a fair procedure has been followed." The Court went on to say that a high standard of procedural fairness is demanded (para 67 of the judgment).

9. Mr Nash relies on the minority judgment in the Zuma case, in which Theron J, in which that learned Judge disagreed with the majority to the extent that it suggested that the granting of direct access to the Constitutional Court "has the result of divesting litigants of their constitutional right of appeal." Mr Nash overlooks that in para 80 the majority in Zuma found that:"... Mr Zuma simply does not enjoy an accused person's right of appeal." Apart from the obvious point that the minority view was firmly rejected by the minority, I fail to see how Mr Nash's submission takes the matter further. In civil contempt proceedings in the High Court a respondent is entitled to apply for leave to appeal. However, even if one takes section 35(3) into account, that right does not guarantee that in every case leave to appeal will be granted.

10. Mr Nash has exercised his right to apply for leave to appeal and that process is being followed. Section 17(1)(a) prescribes the requirements for leave to be granted. In my view, there is nothing inherently unfair in the appeal procedure laid down in section 17(1)(a) which demands a deviation from these requirements so as to require that in every case where a contemnor facing the prospect of a custodial sentence applies for leave to appeal this must be granted. The Zuma judgment does not alter this.

11. Mr Nash's reliance on the Constitutional rights implicated to found a basis fora compelling reason to grant leave to appeal also does not assist him. Constitutional rights are implicated indirectly in most cases in which leave to appeal is sought. The fact that Mr Nash points to some of these rights in this case does not, on its own establish a reason to grant him leave to appeal. It should also be borne in mind that balanced against those rights is the rule of law, which is also affected wherever a person is found to have acted in contempt of court. The rule of law is an equally compelling factor in any application for leave to appeal in a contempt application.

12. Mr Nash also submitted that it would be in the interests of justice to grant leave to appeal because it implicates so many constitutional rights, including his section 12(1) right. He relied on the judgment of the Constitutional Court in Tshwane City v Afriforum 2016 (6) SA 279 (CC) at paras 40-1, for the proposition that, as the CC held: the operative standard for the granting of leave to appeal is the interests of justice and this is the only requirement to be met. It is important to note that the CC in that case was concerned with the specific issue of the appealability of interim orders. This is clear if one reads the first sentence in the para preceding those relied on by Mr Nash: "The appea/ability of interim orders in terms of the common law depends on whether they are final in effect." In paragraphs 40 and 41, the Court goes on to discuss this common law test for appealability. The dicta in these paragraphs cannot be read as re-writing the requirements for leave to appeal being granted under s 17(1)(a) of the Superior Courts Act.

13. For these reasons I am not persuaded by Mr Nash's arguments that in the interests of justice I am constitutionally required to grant him leave to appeal in light of the Constitutional Court's judgment in the Zuma case.

14. On the substantive grounds for leave to appeal, for the most part, Mr Nash sought to persuade me that, contrary to my findings that each of the statements complained of was false and defamatory, another court would reach a different conclusion. Most of the submissions made in this regard were variations on the submissions that were originally made before me at the hearing. As appears from my judgment, I dealt with and analysed the case for the applicant and for Mr Nash in great detail in respect of all the submissions and averments that were made. It is not necessary to repeat my reasons and findings here, my judgment speaks for itself. I am not persuaded that there are reasonable prospects that another court would find

differently.

15. Aside from emphasising again submissions that had been made to me at the hearing, Mr Nash raised some new submissions. He submitted that I had erred in my general approach to determining the issues of the falsity and defamatory nature of Mr Nash's statements. The submission was that I should not have first determined the objective meaning of the statements before assessing whether they were false or not. He suggests I ought to have considered the "factual falsity" of the statements first, and only if found to be factually false should I have proceeded to consider the defamatory nature of the statements. It is only at that point, Mr Nash says, that I could correctly consider the meaning of the statements.

16. I am not persuaded by this submission. It is difficult to understand how one can separate out some sort of factual truth or falsity of the statements without considering first what the statements mean. None of the statements were pure statements of fact - this is apparent from my judgment. All of them were composites of segments leading to an overall statement the meaning, truth and defamatory nature of which I had to determine. It is artificial to suggest that the statements could be read for falsity without first determining the meaning of the composite statements against which the complaints were lodged.

17.Mr Nash also submitted that I had erred in not accepting, on the basis of the Plascon Evans test that he had not acted willfully and male fides in making the statements. In my judgment I dealt with the credibility of the assertion by Mr Nash that he had simply acted in the genuine and honest belief that he was acting

appropriately in making the statements he hadmade. found that his general averments to this effect were not credible, taking into account the background and history of the matter. See in particular paras 77 - 90, where I I discuss this issue in detail. I am not persuaded that another court would find differently in this regard.

18. Mr Nash suggested further that he had not been given the opportunity to make submissions in mitigation against a sentence of committal. As I have noted earlier, Mr Nash was entitled toa fair procedure before I made an order that placed his rights under section 12(1) of the Constitution in

jeopardy. In the Notice of Motion, Mr Nash was alerted to the fact that the applicant sought an order of committal to prison for a period of three months. He was fully represented throughout the application proceedings, including by Senior Counsel. He filed a substantial answering affidavit. He was not denied the opportunity to make whatever submissions he wished in mitigation of a potential custodial sentence, and he was not subject to any unfair process in this regard. As appears from my judgment, particularly at paras 91- 96, I balanced all of the interests involved in reach a decision on the sanction to be imposed on Mr Nash. In doing so, I took into account, among other things, the fact that he was of a vulnerable age. I did not impose the sanction of a direct custodial sentence. In all of these circumstances, I am not satisfied that another court would find that Mr Nash was the victim of an unfair procedure which led to him being given a suspended custodial sentence.

19. Finally, Mr Nash submits that he suffered a double punishment in that he was ordered to pay attorney and client costs. It is trite that costs lie at the discretion of the trial court and that an appeal court may interfere only in limited circumstances. An attorney and client costs order is by no means unusual in contempt of court proceedings precisely because it marks the court's displeasure that its order had been deliberately breached. In my view, there is no reasonable prospect that another court would interfere in the discretion I exercised in this regard.

20. For all of the above reasons, I find that the requirements of section 17(1)(a) have not been satisfied. Leave to appeal is refused, with costs, such costs to include those of two counsel, one being senior counsel.

This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 30 November 2021.

R M KEIGHTLEY

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION

Date Heard (Microsoft Teams): 09 November 2021

Date of Judgment: 30 November 2021

On behalf of the Applicant: ADVOCATE. JG WASSERMAN SC ADVOCATE.S QUINN Instructed by: ASSHETON-SMITH GINSBERG INCORPOTATED On behalf of the Respondent: ADVOCATE. GDWICKINS Instructed by: KWA ATTORNEYS