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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 69611/2014

                                                                                              Date: 21/08/2015

In the matter between:

THE BODY CORPORATE OF EL SOL                                                                          APPLICANT

And

HERMANUS SMALBERGER DE WAAL                                                                 RESPONDENT

JUDGMENT

PRETORIUS J,

[1] This hearing of this opposed application is the return date of a rule nisi which was granted on 18 September 2014 on an urgent, ex parte basis.  The original return date was 5 November 2014, and the respondent was called upon to give reasons why the order should not be made final.

[2] The provisional order’s terms were:

“1.1.1  That the Respondent be imprisoned for a period to be determined by the Honourable Court due to the Respondent’s contempt of a Court order under case number: 47934/2008 and attached as Annexure “PS1” to “PS2” to the Applicant’s founding affidavit.

1.1.2   That the Applicant be authorised to approach the Registrar of the above Honourable Court for the authorisation of a warrant of the Respondent’s arrest and committal in the event of the relief set out in paragraph 1.1.1 supra being granted.

1.2       In the alternative to paragraphs 1.1.1 and 1.1.2 supra that the Respondent be imprisoned for a period to be determined by the Honourable Court due to the Respondent’s contempt of the Court order under case number 47934/2008, which period of imprisonment be suspended on conditions to be determined by the Honourable Court.

1.3       That the Respondent be prohibited to in any way whatsoever communicate with any of the Applicant’s trustees, except in the manner as set out and described in the Court order under case number 47934/2008.

1.4       That the Respondent be prohibited to in any way whatsoever threaten, harass, insult or intimidate any trustee and/or employee and/or resident of the Applicant either directly and/or indirectly.

1.5       That the Respondent be prohibited to in any way whatsoever damage and/or deal with any property belonging to any of the Applicant’s trustees and/or employees and/or residents, either directly and/or indirectly.

1.6       That the Respondent pay the costs of the application on a scale as between attorney and own client.

1.7       That the relief as set out in paragraphs 1.3 to 1.5 supra would operate as an interim interdict with immediate effect.

1.8       That the Sheriff be requested and ordered to forthwith serve the Court order under the above case number personally on the Respondent and to report in this regard in terms of a return of service.

1.9       That the Sheriff be requested and ordered to also serve the Court order under case number 47934/2008 (attached to the Applicant’s founding affidavit as Annexures “PS1” to “PS2”) forthwith on the Respondent personally and further that the Sheriff explain the contents and nature of the Court orders to the Respondent and to report in this regard in terms of a return of service.

1.10    That the Applicant be authorised to supplement the application (subject to approval of the Honourable Court) for proper adjudication thereof at the hearing on the return date.”

[3] This order was served by the sheriff by attaching a copy thereof to the respondent’s post box and another copy to the front gate, as the respondent had refused to accept service of the order.  He informed the sheriff that he was already in possession of the court order.

[4] An opposing affidavit was filed by the respondent to which the applicant filed a replying affidavit.  The opposed application was on the roll for 11 May 2015, after several extensions of the rule by agreement.  It was postponed until 3 August 2015 for hearing, hence the present application.

BACKGROUND:

[5] The applicant is a body corporate registered in terms of the Sectional Titles Act, No. 95 of 1986.  The applicant is responsible for the day to day running of the sectional title scheme, known as El Sol, situated at 73 Johnston Street, Sunnyside, Pretoria.

[6] The respondent is the owner of unit 36 of El Sol and resides in his unit.  A previous court order had been granted against the respondent under case number 47934/2008.  The relevant potions of the previous order are:

“Dat die Respondent verbied word of enige klagtes, besware, voorstelle of kommentare of ander mededelings aan die Eerste Applikant se Raad van enige trustee persoonlik en in besonder aan die Tweede Applikant mondelings of skriftelik oor te dra en word gelas om alle sodanige klagtes, besware, voorstelle, kommentare en ander mededelings skriftelik aan die Sekretaris van die Raad te rig.

Dat die Respondent die Applikant se skriftelike kennisgewings en mededelings persoonlik met ten minste 4 dae kennisgewing per hand te ontvang en ontvangs skriftelik of ‘n afskrif van sodanige kennisgewing te erken.”

[7] An appeal against this order was not prosecuted, although there was an attempt to request leave to appeal.  This was abandoned by the respondent.

PRESENT STATE OF AFFAIRS:

[8] The board of trustees consists of five trustees, two male and three female members.  The chairperson of the board deposed to the founding affidavit.  During September 2014 the respondent threatened one of the lady trustees that he would remove the roof tiles of the trustees, so that they can feel how it feels to live in a unit of which the roof is leaking.  The respondent’s response is that the trustee, Ms Schutte, was not threatened, but that he was joking with her in this regard.  This is contrary to Ms Schutte’s evidence that the respondent was aggressive to such an extent that she removed herself to her unit.

[9] The second incident was confirmed by the respondent.  One of the lady trustees was painting the plant pots at El Sol.  The respondent confronted her and informed her that she had no authority to do so and he would return the relevant pots to the original colour.  In his reply the respondent stated in para 32:

“32.1   Die bewerings dat ek op dreigende wyse ‘afgestorm’ het op een van die vroulike trustees en haar op dreigende wyse gekonfronteer het toe sy besig was om potplantpotte te verf, word ontken.  Ek het ongeveer vyf meter van haar af gestaan terwyl ek met haar gepraat het.

32.2    Die persoon se optrede om die potte te verf met ‘n kleur wat bots met die ander kleure in die kompleks, was eiegeregtig en ek het beswaar daarteen gemaak aangesien die potte deel uitmaak van die gemeenskaplike eiendom en die kleur wat die vrou dit geverf het inbreuk maak op die estetika en waardigheid van die kompleks.

32.3    Die dame was nie gemagtig om sonder die eienaars se toestemming veranderinge aan die voorkoms van die kompleks aan te bring nie.

32.4    Die beweerde trustee het boonop, sonder die toestemming van al die eienaars en strydig met die bestuursreëls, die afdakke by verskeie eenhede laat vervang met afdakke van ‘m swakker gehalte en ‘n ander kleur as die oorspronklikes.”

[10] It is quite clear from the contents of this paragraph that the respondent was angry that, according to him, the particular trustee had exceeded her authority.

[11] The respondent is opposing the final relief on the basis that the Board of Trustees were not legally appointed and constituted.  The respondent criticized the Board of Trustees by stating:

“Die Raad van Trustees van die Applikant verontagsaam hul plig om die kompleks behoorlik te bestuur en te beveilig.”

[12] In spite of these complaints, the respondent has not endeavoured to have the current Board of Trustees removed.  It is also common cause that the respondent had attended the annual general meeting of the owners of the complex.  He did not object to decisions taken at the meeting nor did he object to the appointment of the current trustees.  I find that the current Board of Trustees has locus standi to bring this application.

[13] The court order under case number 47934/2008 still remains in force regarding the trustees of the body corporate, as it refers to “any trustees”.  Although the respondent admitted his conversation with Ms Liza Schutte, one of the trustees, the Respondent submitted he was making a joke and was not serious.  Ms Schutte nevertheless deposed to a confirmatory affidavit which was annexed to the replying affidavit as Ms Schutte’s evidence is that the respondent was threatening and she did not regard his conduct as a joke.

[14] Although it is clear that the respondent does not agree with Bertelsmann J’s judgment in case number 47934/2008, he did not pursue an appeal against the judgment and order.  It is so that the application for leave to appeal was dismissed by default.  The respondent launched an application for rescission of the judgment by default, but concedes that he withdrew the application.  This court cannot sit as a court of appeal and will not deal with the merits of the case under case number 47934/2008.  The judgment and orders are thus in full force and the respondent has to comply with it.

[15] The respondent lists numerous complaints against the trustees, but has failed to institute any action to have the members of the Board removed.  The respondent refrained from anticipating the rule nisi, which he could have done immediately, after he had notice of the court order and the matter is only heard almost a year after the rule nisi had been granted.

[16] There can be no doubt as to the order of Bertelsmann J in case number 47934/2008, which clearly prohibits the respondent to deal with any trustee regarding any complaints and/or suggestions.  The respondent had to put it in writing and direct it to the secretary of the Board of Trustees.

[17] The respondent admitted that he had directed a complaint to Ms Schutte, which is described by her in an e-mail on 2 September 2014, the same day that the incident had occurred:

“By now I had started walking back to my unit, but he kept following me and told me in a raised voice and angry manner how the matter around Unit 40 had been badly managed and that the owner of Unit 40 has many means of legal recourse regarding the matter and in response I agreed with him that this is the case, but that we as trustees were addressing the matter, which aggravated him even further and to which he then threatened me and other trustees by stating that he, as discussed with the owner of Unit 40, would climb into the roofs of the trustees and remove our tiles for us to feel what it is like in Unit 40.  His demeanour at this time was highly aggressive, flying his arms about and it was clear to me that he had to prevent himself from lashing out at me physically, so I just said that he should do what he deems fit and got back into my unit.”

[18] A further admission by the respondent is that he verbally and directly raised objections to another female trustee regarding the painting of the pots for the plants.  This is in direct contempt of the court order.

[19] It is clear that the order of 14 September 2015 was served on or before 19 September 2015, as the respondent indicated to the sheriff that he already had the order.

[20] In the present instance the respondent admitted to at least three incidents where he breached the order.  Although counsel for the respondent argued that these breaches should be regarded as de minimis non curat lex, I cannot agree.  I can come to no other conclusion, taking the respondent’s actions into account, that he had breached the order and that in doing so he was mala fides and wilful.

[21] If the history of the matter is considered and the fact that the respondent knew of the court order and wilfully disobeyed it at least on two occasions which lead to the launch of the urgent application, I find the respondent in contempt of the court order of Bertelsmann J beyond reasonable doubt.  It is of no consequence whether the respondent agrees with Bertelsmann J’s court order of May 2010 or not.  He did not prosecute an appeal and is therefore bound to it.  Casting aspersions on Bertelsmann J and counsel for the applicant at this stage can be regarded as further contempt of court.

[22] I further find that the applicant has established a clear right on a balance of probabilities having regard to all the facts and probabilities.

[23] In Setlogelo v Setlogelo 1914 AD 221 at 227 Innes CJ held:

“The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended and the absence of similar protection by any other ordinary remedy.  Now the right of the applicant is perfectly clear.  He is a possessor; he is in actual possession of the land and holds it for himself.  And he is entitled to be protected against any person who against his will forcibly ousts him from such possession…  It was urged that in any event no irreparable injury had been sustained.  That was not the ground upon which the learned Judge based his refusal; but in any event it is not a ground which can avail the respondent in this case.”

[24] In the present case, applying the principles as set out above, I find that the applicant had established a clear right as required, for this court to grant a final interdict.

[25] In LAWSA, Vol 11, para 398 at page 415 the learned author set out regarding the second requisite of injury actually committed or reasonably apprehended:

“The term “injury” should be understood to mean infringement of the right which has been established and resultant prejudice.  Prejudice is not synonymous with damages and it is sufficient to establish potential prejudice.

A reasonable apprehension of injury is one which a reasonable man might entertain on being faced with the facts; the test is thus objective, and the applicant need not establish on a balance of probabilities that injury will follow.” (Court’s emphasis)

[26] This court is bound by the Setlogelo judgment (supra) where Innes CJ found that the applicant only had to show that it was reasonable to apprehend that injury would result.  In the present matter the respondent had admitted his behaviour and it is reasonable to expect him to continue his behaviour in verbally attacking the trustees, as he states clearly that the judgment of Bertelsmann J is regarded as wrong and it seems as if, in these circumstances, he does not find himself bound to the judgment.

[27] The fact that there is no alternative remedy had been argued.  There is no other remedy to force the respondent to refrain from harassing the trustees of the applicant, contrary to the order granted.

[28] I find that the three requirements for a final interdict have been met.

[29] I find that the respondent had breached the terms of the court order and is clearly in contempt of court beyond a reasonable doubt.

[30] This matter has a long history.  The applicant is acting on behalf of the occupants of El Sol.  It is due to the respondent’s irrational and acrimonious behaviour that the matter had to be dealt with, even after a court order had been granted prohibiting the respondent to deal with any trustee personally.  In these circumstances it would be totally unfair to mulct the residents of El Sol with the cost of this opposed application and the respondent has to bear the costs of the application on an attorney and client scale.

[31] I therefor make the following order:

1.    A final order is granted in terms of prayer 2 of the court order granted on 18 September 2014; the respondent is sentenced to a period of imprisonment of six (6) months which is suspended for five (5) years on condition that the respondent does not harass or contact any member of the Board of Trustees personally, but must address all communication regarding complaints, grievances, proposals or commentary to the secretary of the applicant in writing.

2.    A final interdict is granted in terms of prayers 3, 4 and 5 of the court order dated 18 September 2014.

3.    The respondent is ordered to pay the costs of this application on a scale as between attorney and client.

_____________________

Judge C Pretorius

Case number                                     : 69611/2014

 

Appeal heard on                               : 6 August 2015

 

For the Applicant                               : Adv. KT Jordt

Instructed by                                       : LOUWRENS KOEN ATTORNEYS

 

For the Respondent                          : Mr. GJ Lourens

Instructed by                                     : GERHARD LOURENS ATTORNEYS

 

Date of Judgment                             : 21 August 2015

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