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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2016/48410

Not reportable

Not of interest to other judges

Revised.

14 December 2017

In the matter between:

MKHABELA: TIMOTHY                                                                                          Applicant

and

BOTHMA: HERMANUS JOHANNES WESSELS                                      First Respondent

BOTHMA INCORPORATED                                                                  Second Respondent

THE LAW SOCIETY OF THE NORTHERN PROVINCES                         Third Respondent

JUDGMENT

ADAMS J:

[1]. This is an opposed application by the applicant for an order declaring the first and second respondents to be in contempt of an order of this Court (J W Louw J) of the 26^th of May 2016. The applicant accepts that the first and the second respondents have complied with the first, second and third paragraphs of the said order, but, so it is alleged by the applicant, have failed to comply with paragraph (4) of the order, which provides as follows:

‘The respondents (referring to the first and second respondents in this application) shall pay the proceeds of the claim against the Road Accident Fund to the applicant’s attorneys of record.’

[2]. Although the relevant portion of the court order provides in rather equivocal and somewhat unclear terms that the respondents were to pay over to the applicant’s attorneys of record the ‘proceeds of the claim against the Road Accident Fund’, the applicant in this application applies specifically that the respondents pay over the amount of R1 050 918, being the proceeds of the claim against the Road Accident Fund (‘the RAF’), and that they be declared to be in contempt of court for failing to pay over that particular amount.

[3]. The order of the 26^th of May 2016 was granted against the respondents by default, and at some point the respondents intended applying for a rescission of the said order. In the end, they opted not to proceed with the rescission application as, in their view, it would have served very little, if any, practical purpose. The first and second respondents were the erstwhile attorneys of the applicant and represented him in his claim against the RAF, which claim they settled on his behalf during or about February 2015 for the capital amount of R1 050 918, plus interest and costs.

[4]. The capital amount of R1 050 918 was paid into the trust account of the second respondent by the RAF on the 4^th February 2015. Shortly thereafter the amount of R900 000, representing a portion of the capital sum, was paid into the account of an entity known as ‘Brakspruit Boerdery Trust’. This payment was made supposedly on the express instruction of the applicant as per an affidavit signed by him before a Commissioner of Oaths on the 25^th of November 2014. This payment to the ‘Brakspruit Boerdery Trust’ was purportedly a loan by the applicant, who, by all accounts is an unsophisticated ‘man of straw’ and who was seriously injured in a motor vehicle accident on the 12^th of October 2010. The first and second respondents furnish very little, nay no details relating to this phantom Trust. The first and second respondents are however clearly in control of same, which is evidenced by the fact that the respondents are able to withdraw and received monies directly from the bank account of this entity. This, as is rightly pointed out by the applicant in his replying affidavit, is demonstrated by the fact the attorney and client bill of cost prepared by the respondents has the following item as number 483: ‘attend to pay R2000 cash to client from BB Trust (see note)’. In my view, the Brakspruit Boerdery Trust is the alter ego of the first respondent. What is however disconcerting of the supposed loan by the applicant to this entity is the fact that there appears to be no – absolutely none – justification and motivation for the applicant, who finds himself in dire financial straits and seemingly living from hand to mouth, lending this trust the substantial sum of about R900 000.

[5]. In their opposing papers the respondents do not even begin to explain why the amount was advanced to the Trust. Needless to say, the applicant denies that he agreed to lend his money to that entity. He puts it thus in his replying affidavit:

‘I wish to indicate to the Honourable Court that I could not give a loan of R900 000 to Brakspruit Boerdery Trust while I am poor, illiterate, sick, and staying in a shack on somebody’s property.

… …

The question that now the respondents have to enlighten the Honourable Court on is whether an illiterate, sick, cripple and homeless man like me will give a loan to an unknown and possibly non – existent entity with an attorney who is supposed to inform me and advise him. Is that possible?’

[6]. The respondents accept that the amount payable to the applicant, as being the proceeds from the award received from the RAF as compensation for the injuries sustained in the motor vehicle accident, is the sum of R798 808.62. This is in fact the net proceeds, according to the respondents, after various amounts, including the attorney and own client fees and disbursements payable by the applicant to the respondents and amounts advanced to the applicant whilst the claim against the RAF was being pursued. The applicant disputes this amount due to him, and avers that the sum to which he is entitled is about R900 000. All the same, at the very least, and even on the version of the respondents, the amount payable by the first and second respondents to the applicant’s present attorneys of record is the sum of R798 808.62. This is the amount, which is objectively ascertainable, and which should have been paid by the respondents in terms of clause (4) of the Court Order of the 26^th of May 2016. In my view, the respondents are being disingenuous in their attempts at engineering a dispute as to the amount intended to be paid pursuant to the Court Order. The point is this: however one views this matter, there was a substantial amount to be paid into the trust account of the applicant’s present attorneys of record. That was not done. No attempt was made by the respondents to pay any amount into the said account.

[7]. The respondents oppose the application on the basis that ‘their purported failure to comply with paragraph 4 of the Court Order dated the 26^th May 2016’ does not constitute contempt of court. The first and second respondents contend that for the reasons alluded to infra there was no wilfulness on their part, and therefore the applicant has not proven one of the essential requirements for civil contempt of court. They however seem to admit that they have not complied with the letter of the court order in that they have failed to pay over to the applicant’s attorneys of record the proceeds, whether that be net or gross, of the applicant’s claim against the RAF.

[8]. The conduct alleged by the applicant to constitute contempt of the Court Order is denied by both respondents.

[9]. The respondents also take issue with the applicant on a number of other aspects, such as whether any amount to be paid pursuant to paragraph 4 of the Court Order has been determined or not. The first and second respondents also submit that an issue before me is what sentence to impose in the event of them being found to be in contempt of the above Court order.

The Law and its application in casu

[10]. In Fakie v CCII Systems (Pty) Ltd, [2006] ZASCA 52; 2006 (4) SA 326 (SCA), the court held that:

‘The essence of contempt of court ex facie curiae is a violation of the dignity, repute or authority of the court. … Deliberate disregard is not enough, since the non – complier may genuinely, albeit mistakenly, believe that he is entitled to act in the way he claimed to constitute the contempt. … Even a refusal to comply that is objectively unreasonable, may be bona fide.’

[11]. I agree with the submission by Mr Ascar, Counsel for the first and second respondents, that the applicant was required to prove three requirements, that being wilfulness, mala fides and unreasonable non – compliance, which has to be bona fide,  before it can be said that the conduct of the first and second respondents constitute contempt of court. As regards the question of the unreasonableness of the non – compliance, see Consolidated Fish (Pty) Ltd v Zive, 1968 (2) SA 517 (CPD) at 524 D.

[12]. In the Fakie matter (supra) Cameron JA held that the applicant in civil contempt of court proceedings is required to prove beyond a reasonable doubt the following requirements: the Court Order, service thereof and / or actual knowledge thereof and wilfulness or mala fides. Once these are established, so Cameron JA held, the respondent then bears an evidential burden to rebut wilfulness and mala fides, by raising only a reasonable doubt, which is the test applicable in criminal matters.

[13]. In sum, the applicant alleges that the first and the second respondents are in contempt of the Court Order of the 26^th of May 2016. They have wilfully and in a mala fide manner not paid the net proceeds from his RAF claim. It is a fact that the first and second respondents did not pay over to the applicant’s present attorneys of record the proceeds of the award paid by the RAF in settlement of his damages claim arising from injuries sustained by him in the motor vehicle collision. The only question is whether such failure amounted to contempt of court in that it was mala fide and wilful.

[14]. The respondents contend that they do not have the money as they, in accordance with the mandate from the applicant, had loaned the amount due to him to an entity called ‘Brakspruit Boerdery Trust’.

[15]. The question which I need to decide is whether the applicant has made out a case in support of the relief sought. In other words, having regard to the version of the first and second respondents, did the applicant prove beyond a reasonable doubt that the respondents are wilfully and in bad faith not complying with the Court Order by not paying over the R798 808.62?

[16]. In my judgment, the above question must be answered in the affirmative. I reject as false, beyond a reasonable doubt, the claim by the first and second respondents that they were instructed by the applicant to lend to Brakspruit Boerdery Trust his money. I do so for the reasons alluded to above, most notably the fact that the version of the respondents in that regard is highly improbable. It is far – fetched, laughable and can and should be rejected out of hand. I also reject as false the assertion by the respondents that they no longer have the money as it was paid over to the said Trust. I have no doubt that the so called Trust is under the control of the first respondent, and may very well be his alter ego. If this was not so, the first respondent would no doubt have said so in his opposing papers. This conclusion is also irresistible if regard is had to the fact that the first and second respondents have not apprised the court and the applicant of one iota of details and particulars relating to the Trust. He does not give any of the following details relating to the Trust: the name(s), address(es) and other details of the trustees and the beneficiaries; the Trust Number with the office of the Master, a copy of the Deed of Trust and other Trust Documents.

[17]. This then means that, in my judgment, the applicant has proven all of the elements necessary to have the first and second respondents declared to be in contempt.

[18]. In the circumstances, I am of the view that the applicant is entitled to the relief sought in the notice of motion.

Costs

[19]. The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there are good grounds for doing so, such as misconduct on the part of the successful party or other exceptional circumstances. See: Myers v Abramson, 1951(3) SA 438 (C) at 455.

[20]. I can think of no reason why I should deviate from this general rule.

[21]. I therefore intend awarding cost against the applicant in favour of the frist respondent.

Order

Accordingly, I make the following order:-

1. The first and second respondents are held to be in contempt of the Court Order granted on the 26^th of May 2016 by J W Louw J under case number 93401/2015, in that they have to date hereof not paid into the trust account of the applicant’s attorneys of record, being Mpho Mofomme Attorneys, the proceeds of the claim by him (the applicant) against the Road Accident Fund, being an amount of R798 808.62.

2. The first respondent is committed to imprisonment for a period of one month for his contempt of court, which sentence is hereby suspended on condition that the first and second respondents comply fully with clause (4) of the Court Order within six weeks from date of this order.

3. For its contempt of court, the second respondent is fined R50 000, similarly suspended on condition that the first and second respondents comply fully with clause (4) of the Court Order within six weeks from date of this order.

4. The first and second respondents, jointly and severally, the one paying the other to be absolved, shall pay the applicant’s cost of this application.

_________________________________

L ADAMS

Judge of the High Court

Gauteng Division, Pretoria

 

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HEARD ON:	25th & 26th October 2017
JUDGMENT DATE: FOR THE APPLICANT:	14th December 2017 Adv R Baloyi
INSTRUCTED BY:	Mpho Mofomme Attorneys
FOR THE FIRST & SECOND RESPONDENTS:	Adv C C Ascar
INSTRUCTED BY:	Bothma Incorporated

 

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