Tokkie Ferreira Makelaars BK v Stolk en Ander (1979/2011) [2012] ZANCHC 32 (17 February 2012)

Tokkie Ferreira Makelaars BK v Stolk en Ander (1979/2011) [2012] ZANCHC 32 (17 February 2012)

The court found that the respondents breached the terms of the court order dated 7 December 2011 by engaging in prohibited insurance activities within the restricted area and failing to comply with the restraint of trade provisions. The respondents' explanations regarding their understanding of the order and their conduct were inconsistent, inherently improbable, and contradicted by the evidence, including their own affidavits and the conduct observed at their residence. The respondents failed to discharge the evidential burden to rebut the inference of wilfulness and mala fides. The court concluded that contempt was established beyond reasonable doubt. Given the financial motive and the...

Citation
[2012] ZANCHC 32
Parties
Applicant: Tokkie Ferreira Makelaars BK; Respondent: André Stolk; Respondent: Adele Stolk
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
17 February 2012
Case Number
1979/2011
Procedural Posture
Urgent Application / Contempt Application Following Interim Interdict; Judgment on Merits
Outcome
Application for contempt of court granted. Respondents found guilty of contempt of the court order dated 7 December 2011.
Judges
Olivier R
Legal Topics
Civil Contempt of Court, Restraint of Trade, Interim Interdict, Employment Contract, Breach of Court Order
Civil Procedure Commercial and Corporate Civil Contempt of Court Restraint of Trade Interim Interdict Employment Contract Breach of Court Order

Case Brief

Summary, issues, holding and outcome

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Parties

Tokkie Ferreira Makelaars BK

Applicant

André Stolk

Respondent

Adele Stolk

Respondent

Procedural Posture

Urgent Application / Contempt Application Following Interim Interdict; Judgment on Merits

Legal Issues

  1. 1 Whether the respondents breached the court order dated 7 December 2011 imposing restraint of trade and prohibiting certain insurance activities within a specified radius.
  2. 2 Whether the respondents' conduct constituted contempt of court.
  3. 3 Whether the respondents acted wilfully and in bad faith in contravening the order.

Ratio Decidendi

The court found that the respondents breached the terms of the court order dated 7 December 2011 by engaging in prohibited insurance activities within the restricted area and failing to comply with the restraint of trade provisions. The respondents' explanations regarding their understanding of the order and their conduct were inconsistent, inherently improbable, and contradicted by the evidence, including their own affidavits and the conduct observed at their residence. The respondents failed to discharge the evidential burden to rebut the inference of wilfulness and mala fides. The court concluded that contempt was established beyond reasonable doubt. Given the financial motive and the...

Court Disposition

Application for contempt of court granted. Respondents found guilty of contempt of the court order dated 7 December 2011.

Orders

  • The first and second respondents are committed to imprisonment for a period of 30 days, suspended for one year on condition that they comply with the order granted on 7 December 2011 for as long as it remains in force.
  • Leave is granted to the applicant to approach this court for committal should any respondent breach the suspended sentence condition, on supplemented papers as necessary.