V Munilall & Associates v State Attorney and Others (16331/2020) [2020] ZAGPPHC 323 (29 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

Case number: 16331/2020

Date:

In the matter between:

V MUNILALL & ASSOCIATES

APPLICANT

And

THE STATE ATTORNEY Mr K I CHOWE

1ST RESPONDENT

STATE TENDER BAORD

2ND RESPONDENT

STATE ATTORNEY Ms T NHLANZI

3RD RESPONDENT

Ms REBECCA TEE

4TH RESPONDENT

Ms ZINGISA ZENANI

5TH RESPONDENT

JUDGMENT

TOLMAY, J:

[1] The applicant (Mr Munilall) brought an application against five Respondents for contempt of court. In his notice of motion he sought

an order which reads as follows:

"1. Declare the refusal or failure of Second Respondent's National Treasury administrators, and State Attorney Mr Chowe, to not pay Applicant's wasted costs as ordered by Chesiwe AJ is a criminal offence and a contempt of court;

2. Order the 1st , 3rd , 4th and 5th officials to jointly pay the Second Respondent's attached debt in the sum of R2 303-50 within 30 days hereof as provided for in Section 12(1) of (the) State Tender Board Act 1968, read with the State Liability Act, and (the) Public Finance Management Act;

3. The 1st , 3rd , 4th and 5th Respondents be ordered to jointly pay costs de bonis properiis to VMA in the sum of R10 000-00;

4. Should payment be received by VMA within 30 days hereof, the said de bonis properiis costs (sic) will be abandoned by Applicant;

5. Conversely if this de bonis properiis cost (sic) becomes payable after 30 days, order that it remain (sic) a fixed sum not subject to Taxation by the Taxing Master; and

6. Further and alternative relief.

[2] On 8 May 2020, prior to the hearing on11 May 2020, Mr Munilall filed a draft order which he then sought to be made an order of court. This order reads as follows:

"IT IS DECLARED AND ORDERED:

1. The Respondent's application for Condonation and consequently their Opposition be dismissed as non­ compliant in limine, and having no prospects of success.

2. It is declared the Second Respondent through the First, Third Fourth and Fifth Respondents had wilfully and criminally contempted (sic) the Orders of Chesiwe AJ by not paying Applicant's wasted costs as ordered with consent between the parties.

3. The Director-General in the Department of Finance is ordered through the First, Third, Fourth and Fifth Respondents to pay under Section 12(1) of the State Tender Board Act 1968, the Applicant's wasted costs in the sum of R2 303-50 within 30 days of this order.

4. To further pay interest at 15.5% from September 2019 when the Bill was taxed by the Taxing Master to date of payment.

5. The 1st,3rd , 4th and 5th Respondents are ordered to jointly pay the costs de bonis properiis to Applicant in the sum of R10 000-00 within 30 days of this order for their wilful and deliberate

contempt.

6. To further pay interest on R10 000-00 at 15.5% from date of this order to the date of payment.

7. It is declared the Respondents were forewarned of this fixed de bonis properiis cost (sic)in applicant's notice of motion but took no steps to avoid it. The sum of R10 000-00 is not subject to Taxation by the Taxing Master due to Applicant's in person hourly rates not being provided for in the tariffs.

8. Further and alternative relief- M'Lady to show this Hon. Court's displeasure in the strongest terms firstly for their contempt; and secondly for Respondents spending more of Taxpayers scarce monies to defend this application than settling the matter at a lesser cost, and without wasting the valuable resources of this Hon court in the 'Lockdown' emergency times."

[3] The application was opposed by the First, Third and Fifth Respondents . The matter was heard by way of Zoom video conferencing on 11 May 2020.

[4] The application was initially set down on the unopposed roll of 7 May 2020, seeing that it was opposed the court agreed to attend to it on 11 May 2010, as part of the court's opposed motion roll.

[5] The notice of set down was served by way of an email on 23 April 2020 at 15:10. This was during the period of national lockdown. The First Respondent, Mr Chowe, explained that he did not have access to his office and due to the directives applying at the time only urgent matters were to be attended to. As a result he did not file an answering affidavit prior to 7 May 2020. I am of the view that condonation for the late filing of the affidavits by the Respondents should be granted under these circumstances, this was a time during which movement of people was restricted and as a result litigants could not comply with the rules of Court. Mr Munilall suffered no prejudice as the Court agreed to hear the matter seven days later. It is trite that the Court will also consider the merits and the conclusion that the Court reached regarding the merits also supports the decision to grant condonation.

[6] Mr Munilall's application was based on the alleged contempt by the Respondents' of an order granted by Chesiswe AJ on 24 May 2017. It must be noted that the parties in that application were Vishnu Munilall & Associates as the Applicant and The Minster of Justice and the State Tender Board as Respondents. The order reads as follows:

"IT IS ORDERED THAT:

1. The matter be and is hereby postponed sine die;

2. The second respondent is to make an application for condonation within 15 (fifteen) days;

3. The second respondent is to pay the wasted costs of today"

[7] It must accordingly be noted that apart from the Second Respondent (the State Tender Board) none of the Respondents in the present application were parties to the application before Chesiswe AJ, nor was any order granted against them. In this application Mr Munilal seeks no order against the State Tender Board.

[8] It appears from Mr Munilal'ls affidavit that the First Respondent, Mr Chowe, who is a State Attorney, sought the order granted by Chesiwe AJ during the temporary absence of the Third Respondent (Ms Nhlanzi) the State Attorney, who apparently dealt with this matter. The Fourth Respondent is Ms Tee, who is the Chief Director of litigation at National Treasury. According to Mr Munilall, Ms Zenani, the Fourth Respondent is her assistant

[9] Mr Munilall alleged that the aforesaid Respondents wilfully disobeyed the Court order and that he is therefore entitled to the relief sought. He also seeks a de bonis properiis costs order against them. On perusal of the papers it would seem that Mr Munilall is involved in protracted litigation against The Minster of Justice and the State Tender Board. That litigation apparently concerns a claim for damages by Mr Munilall, due to the rejection of a tender to supply transcription services. One of the points taken by the Minister of Justice is that the State Tender Board ceased to exist. This Court has no further knowledge of that litigation.

[10] In Fakie NO[1] the SCA laid down the legal principles governing a litigant's alleged failure to comply with a court order. The SCA held that wilful and mala fide defiance must be established beyond a reasonable doubt. No onus of proof rests on a person accused of contempt, but a burden to adduce evidence from which an inference of absence of wilfulness or mala fides can be deduced does rest on such a person, once proof is adduced of the existence of an order, service on the person, and non-compliance. Cameron JA held:

"[39] ... A court in considering committal for contempt can never disavow the public dimension of its order. This means that the use of committals for contempt cannot be sundered according to whether they are punitive or coercive. In each, objective (enforcement) and means (imprisonment) are identical. And the standard of proof must likewise be identical.

[40] This approach conforms with the true nature of this form of the crime of contempt of court. As pointed out earlier (in para 1), this does not consist in mere disobedience to a court order, but in the contumacious disrespect for judicial authority that is so manifested. It also conforms with the analysis in Beyers (in para 11 above), where this court held that even though enforcement is the primary purpose of committal, it is nevertheless not imposed merely because the obligation has not been observed, 'but on the basis of the criminal contempt of court that is associated with it'. The punitive and public dimensions are therefore inextricable: and coherence requires that the criminal standard of proof should apply in all applications for contempt committal.

[41] Finally, as pointed out earlier (para 23), this development of the common law does not require the applicant to lead evidence as to the respondent's state of mind or motive: once the applicant proves the three requisites (order, service and non-compliance), unless the respondent provides evidence raising a reasonable doubt as to whether non-compliance was wilful and mala fide, the requisites of contempt will have been established. The sole change is that the respondent no longer bears a legal burden to disprove wilfulness and mala tides on balance of probabilities, but need only lead evidence that establishes a reasonable doubt. ...

[11] Mr Munilall, in order to succeed in his application had to prove beyond reasonable doubt, the order, service or non-compliance, and wilfulness and ma/a tides. He proved the existence of an order, but the Respondents were not parties to that application, nor did the order impose any obligation on them. He also failed to prove wilfulness or mala fides on their part. He merely claimed that they failed to pay the costs order granted against the State Tender Board and then proceeded to seek a declaration of contempt and a de bonis properiis costs order against them.

[12] Mr Munilall did not make out any case against any of the Respondents in their personal capacity, the First and Third Respondents acted in a representative capacity as legal representatives and no case was made out for personal liability against them. The Fourth and Fifth Respondents were employees of National Treasury and there exists no nexus between them and the State Tender Board, which could make them liable for a costs order granted against the State Tender Board. No facts were set out that indicate any reprehensible or unprofessional conduct by any of the Respondents. In Mr Munilall’s draft order of 8 May 2020, he also sought an order against the Director-General of Finance, who was not joined as a party to the proceedings. As a result no order can be granted against him.

[13] A Court will grant a de bonis properiis order only against individuals in their personal capacities where their conduct showed a gross disregard for their professional responsibilities, and where they acted inappropriately and in an egregious manner.[2] In this instance no case was made out of any improper conduct against any of the Respondents. The failure of the State Tender Board cannot be attributed to them.

[14]

Mr Minulal'ls application is devoid of merit for the reasons set out above. As a result this Court cannot find them in contempt of Court, or grant a costs order de bonis properiis or otherwise against them.

[15] In the light of all the facts, the application cannot succeed. The Respondents in turn sought a punitive costs order against Mr Munilall. Seeing that I accept that he, being a lay person, might have merely been misguided about the legal position I will not attribute vexatiousness to him. Ms Pillay (Sc) also indicated that she was acting pro bono for the Respondents, as a result no costs was incurred as a result of her appearance, under these circumstances a party and party cost order should suffice.

[16] I make the following order:

1. The application is dismissed, and

2. The Applicant is to pay the costs of the Respondents.

R G TOLMAY

JUDGE OF THE HIGH COURT

DATE OF HEARING:

11 MAY 2020

DATE OF JUDGMENT:

29 JUNE 2020

ATTORNEY FOR PLAINTIFF: IN PERSON

ADVOCATE FOR PLAINTIF:

ATTORNEY FOR DEFENDANT: STATE ATTORNEY

ADVOCATE FOR DEFENDANT: ADV PILLAY (SC)

[1] Fakie NO v CCI Systems (Pty) Ltd 2006(4) SA 326 (SCA)

[2] Public Protector V SA Reserve Bank 2019(6) SA 253 (CC)