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NOT REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO. 25605/12

DATE:30/04/2013

In the matter between:

GIBA, NTOMBIKAYISE TERCIA...........................................................................Applicant

and

MBATHA, BHEKI GOODWILL.....................................................................First Defendant

CHRIMS PETROLEUM INVESTMENT..................................................Second Defendant

JUDGMENT

DTvR DU PLESSIS : AJ

1. The applicant seeks an order that the first respondent be found to be in contempt of court for having disobeyed an order of court dated 2 May 2012. The applicant does not seek the committal of the first respondent. In the circumstances the civil standard of proof on a balance of probabilities will be sufficient to establish contempt.¹

2. It is common cause that Makgoka J made the following order under case number 2012/11063 on 2 May 2012:

“7 The company’s manager, Mr. Bheki Goodwill Mbatha is ordered to make a written report, every Monday, to the First Respondent’s attorneys, of all the activities of the company for the preceding week, which report shall include a detailed list of the expenses incurred, and payments made, during the preceding week, substantiated by vouchers and supporting documents.”

3. On 30 May 2012 Mokgoatlheng J dismissed the rule nisi and postponed the counter-application to 12 June 2012. The dismissal of the rule nisi did not impact the order referred to above, but this is in any case not relevant as the first respondent noted an application for leave to appeal against the dismissal. On his own version the order has therefore revived.²

4. The first respondent submitted a report for the period 2 to 5 May 2012, one for the period 14 to 18 May 2012 and one for the period 17 to 23 September 2012. The reports that were submitted did not comply with the requirements of the order and contained certain false information. However, for purposes of this application it is not necessary to examine this in any detail.

5. On behalf of the first respondent, and as a point in limine, it was argued that a shareholder of the second defendant should have been joined in the application as an interested party. This point was neither raised in the first respondent’s answering affidavit, nor in the short heads of argument filed on its behalf. Notwithstanding this, the shareholder has no interest in the present application. The application is by a party in whose favour an order was granted by this court against another party. It follows that the applicant also has the necessary locus standi to have launched the application.

6. The order of Makgoka J was thereafter criticised by counsel for the first respondent. In his heads of argument, the following is inter alia stated: “Should the court have been referred to said authorities the court could not have reasonably made the interim order aforesaid.”

7. This attack is totally misplaced. This court is not sitting as a court of appeal and cannot amend or vary the order. In any event, it is common cause between the parties that the order was valid and enforceable during a time that the first respondent did not comply with the terms thereof.

8. The first respondent had knowledge of the order and, in fact, attempted to comply therewith as set out above. In his answering affidavit he states that there was nothing to report upon in that no money was deposited into the bank account of the second respondent for the relevant period. The bank account has also not been used for that period. In essence, he relies on the allegation that the second respondent had not been trading.

9. The applicant disputes this allegation and has annexed copies of the second respondent’s bank account to show that it had in fact been trading. However, it is not necessary for me to determine this dispute. The first respondent had an obligation to comply with the court order even if no money was being deposited into the bank account.

10. The fact is that there is no explanation from the first respondent as to why he did not comply with the order for the week 7 to 11 May 2012. This was at a time when there can be no doubt that the order was effective and when the first respondent was aware of his obligation to comply, as is evidenced by the reports for the periods 2 to 5 May 2012 and 14 – 18 May 2012. His answer to this allegation was a bare denial.³

11. The implication of the denial is an allegation that he did in fact comply. However, no such report is annexed to his answering affidavit. Unsurprisingly his counsel could also not provide an explanation for this when invited to do so during argument.

12. I was informed from the Bar that the first respondent had been advised to comply with the order by his legal representatives, as the second respondent has commenced trading. The submission that the first respondent’s failure to comply was the result of an oversight or negligence on his part, cannot be accepted. On his own version the first respondent was at all times aware of his obligations and elected not to comply therewith. The first respondent therefore bore an evidentiary burden to establish a reasonable doubt that he acted wilfully or mala fide.⁴ He failed to discharge this burden of proof.

13. For these reasons I find the first respondent to be in contempt of court. Such a finding should usually be accompanied with a punitive cost order as the court should show its displeasure with the respondent’s conduct. However, the undisputed conduct on which I have based the finding of contempt is of such a limited nature that, in my view, it does not warrant a punitive order for costs. I have a discretion in this regard and do not feel that a punitive order is warranted.

14. For these reasons I make the following order:

1. The first respondent is found to be in contempt of court in respect of the order dated 2 May 2012;

2. The first respondent is ordered to pay the costs of this application.

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DTvR DU PLESSIS: AJ

ACTING JUDGE OF THE HIGH COURT

On behalf of the Applicant: Adv. BD Hitchings 011 895 9000 / 083 299 5857

Instructed by:

On behalf of the Respondent: Adv. TJ Magano 011 333 0403 / 072 233 5980

Instructed by:

Dates of Hearing: 26 April 2013

Date of Judgment: 30 April 2013

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