Perumal v Bhyat and Others (2013/33567) [2014] ZAGPJHC 348 (24 March 2014)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2013/33567

DATE: 25 MARCH 2014

In the matter between:

IRVIN PERUMAL.................................................................Applicant

And

SHAHEEN BHYAT.....................................................First Respondent

DUNNEWELS BODY CORPORATE......................Second Respondent

SANNETTE ERASMUS............................................Third Respondent

JANINE TARGETT ….............................................Fourth Respondent

OLIETE PERESTRELO.............................................Fifth Respondent

VHUMBANAI PROPERTY SOLUTIONS.................Sixth Respondent

JUDGMENT

(CONTEMPT PROCEEDINGS)

MAKUME, J:

[1] This application finds its origin in the judgment of Ranchod J dated the 12th June 2013 which judgment I have already set aside as having been erroneously sought and granted on incorrect information.

[2] Paragraphs 4, 5 and 6 of that order reads as follows:

“4. The First Respondent provides a detailed and comprehensive statement as to how the original court order was replaced by the new order (‘the new order’) and in the absence of a Rule 42 application. This act be deemed a nullity and that this Honourable Court takes appropriate authorities for investigation.

5. The First Respondent provides full detail and comprehensive statement as to how the original order was replaced by the new order and in the absence of a Rule 42 application, this act be deemed a nullity and this court order the Registrar of this court forward a copy of this judgment after it has been transcribed to the Law Society of the Northern Provinces for further investigation of the First Respondent’s conduct and take such necessary steps as may be required in that regard.

6. The First Respondent is to pay the costs of this application which was brought on urgent basis.”

[3] In a nutshell the applicant says for having failed to comply with the order of Ranchod this Court should find that:

3.1 The First Respondent be held in contempt.

3.2 That he be compelled to comply with the order of the Honourable Ranchod under Case No 19691/2013.

3.3 That he be interdicted from manufacturing and generating documents in order to prejudice the applicant.

[4] The contempt proceedings should have been brought under the case number from which the conduct emanates namely Case No 19691/2013 instead of case number 33567/13. This is irregular and not in compliance with procedure and falls to be dismissed. In any case that court order itself no longer exists even if it was still in existence this application would not have succeeded.

[5] After reading the founding affidavit in this matter especially paragraphs 17, 18 and 19 I have come to the conclusion that the applicant is a teller of tall tales some taller than others. I say this guardedly for I hold the view that credibility ought not to be decided on affidavit. In this instance I am prepared to deviate from this noble rule and I find that applicant cannot be believed.

[6] In his affidavit he says that after he had served a notice withdrawing the application under Case No 19059/2013 the first respondent used the same document to manufacture his own withdrawal notice for the matter under Case No 2013/19691. He denies having withdrawn Case No 19691/2013 and yet a scrutiny of both notices establishes that he was the author of both notices in any case he sought the same relief in both cases.

[7] For an applicant in contempt proceedings to succeed he must amongst others prove mala fides. It is not an offence to disobey a false court order in the same way that it is not an offence to resist an unlawful arrest.

[8] In the matter of Claremont v Claremont 1961 (3) SA 861 (C) at 866 it was held that a person’s disobedience of the order must be not only be wilful but also mala fide. In Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at 346 it was held that an honest belief that non-compliances is justified or proper is incompatible with intention to violate the court’s dignity, repute or authority.

[9] The first respondent as an attorney knew that the court order of the 12th June 2013 was defective and rightfully disobeyed same.

[10] The applicant further seeks an order to compel first respondent to comply with the order of Ranchod. That order has been set aside and there is accordingly nothing to compel him to comply with.

[11] The applicant next seeks an interdict against the first respondent from generating documents that are aimed at prejudicing him. The applicant has not made out a case for either interim or final interdictory relief. No facts have been established in support of that relief. Accordingly that request must also fail.

[12] Lastly he seeks an order against the Law Society to investigate. He has submitted no proof that the Law Society is in fact not doing so. However, no case has been made for such a relief.

[13] Accordingly the order that I make is as follows:

The application is dismissed and the applicant is ordered to pay first respondent’s taxed party and party costs.

M A MAKUME

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

APPLICANT: IN PERSON

21 DUNNEWELS COMPLEX

7 MAIDEN STREET

ROBINDALE

RANDBURG

RESPONDENT: ADV G STEYN

INSTRUCTED BY: BICCARI,BOLLO&MARIANO ATTORNEYS

Tel: (011) 628-9300

Fax: (011)788-1736

Ref: M Hinz/rv/RD1873

DATE OF HEARING: 3RD MARCH 2014

DATE OF JUDGMENT: 25TH MARCH 2014