South Africa: Eastern Cape High Court, Grahamstown

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[2019] ZAECGHC 66
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Wilhelm v Boshoff (3874/2017) [2019] ZAECGHC 66 (4 June 2019)
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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy |
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO.: 3874/2017
Matter heard on: 06/12/2018
Judgment delivered on: 04/06/2019
In the matter between:
JOHANN GEORGE WILHELM APPLICANT
and
ROBERT MICHAEL BOSHOFF RESPONDENT
(ID NO.: 7…)
JUDGMENT
SMITH J:
[1] The applicant seeks an order declaring the respondent in contempt of an order granted by Lowe J on 31 October 2017, and directing him to purge his contempt by delivering building material and completing building works at his premises. The applicant farms in the Bathurst area and the respondent is a businessman trading as SA Megastructures.
[2] When this matter was first argued before me on 6 December 2018, and after I reserved judgment, Mr Olivier, who appeared for the respondent, indicated that he intended to apply for leave to file further affidavits, and requested me to hold my judgment in abeyance. By agreement between the parties I subsequently made the following order in this regard:
“ (1) The respondent shall file his application for leave to file further affidavits, if any, by Friday, 21 December 2018.
(2) The applicant shall file his opposing affidavit, if any, by 15 January 2019.
(3) The respondent shall file his replying affidavit, if any, by 22 January 2019.”
[3] The understanding was that the parties would thereafter approach me to arrange for the application to file further affidavits to be set down for hearing. The respondent has, however, failed to file the application, and on 25 February 2019 his attorneys of record withdrew, “due to a final order of liquidation being granted against the defendant on 8 February 2019.”
[4] Since it has now become clear that the respondent does not intent to file an application for leave to file further affidavits, I am of the view that the applicant would be unduly prejudiced if the matter is delayed any further. I have accordingly decided that it is now appropriate for me to hand down my judgment.
[5] The order granted by Lowe J was by agreement between the parties and reads as follows:
“
1. That the Respondent be and is hereby directed to specifically perform his obligations as contractor in terms of the agreement annexed to the application papers as annexure “JW2”, more particularly that the respondent:-
1.1. Supply and deliver the materials for the erection of a steel structure, a lean-to-roof and concrete flooring;
1.2. Erect the steel structure and lean-to roof and attend to the concrete flooring works at the Walsingham Farm, Southwell Road, District of Bathurst;
to the satisfaction of the applicant
2. That the Applicant will pay the respondent the remaining 30% of the steel structure upon completion of the project.
3. That in the event of the Respondent failing to comply with the Order in paragraph 1 supra then and in such event, the Applicant be and is hereby granted leave to apply to the above Honourable Court for further relief on the same papers, suitable supplemented.”
[5] In his founding affidavit the applicant said that when it had become clear that the respondent would not perform in terms of the court order, his attorney wrote to the respondent’s attorneys to draw their attention to the respondent’s default, stating also that contempt proceedings would be instituted. There was no response to that letter until 28 February 2018 when he received a letter from one of the respondent’s employees advising that they would be delivering building material.
[6] On 14 March 2018 the respondent caused 14 columns and 14 rafters to be delivered to the building site. The material was, however, not of the correct sizes and specifications and could accordingly not be used. No further building material has since been delivered.
[7] On 15 March 2018 the applicant received a voice message to the effect that the respondent would be sending workers to the site and that he should accommodate them. He replied that he would be happy to accommodate them since he was keen to have the building project finalised. He was subsequently told that he must contact one of the sub-contractors, one Strohm, in order to make the necessary arrangements. Strohm arrived at his place on 19 March 2018, accompanied by several workmen, but was unable to commence construction because the required building material had not been delivered. He undertook to take the matter up with the respondent and revert to the applicant. However, after Strohm had left the site the applicant never heard from him or the respondent again.
[9] In his apposing affidavit the respondent described his failure to perform the work in accordance with the court order as “defective performance” as opposed to “non-performance”. He said that he has attempted to complete the work, but has, since 31 July 2018, been unable to perform in terms of the court order because of his illness and problems with suppliers and subcontractors. He was still attempting to procure building material from reliable suppliers and to appoint a sub-contracting team with a good track record, even though he was managing “several hundred other sites around the country”. He wrote to the applicant on 30 July 2018 and requested extension of time, which the latter, through his attorney, duly granted him. He was thus required to complete the work by 21 August 2018. He averred furthermore that he had made all reasonable attempts to perform the work, and his failure to comply was accordingly not wilful and mala fide.
[11] It being common course that the respondent was aware of the court order and had failed to comply with its terms, he bore an evidentiary burden to establish that his failure to comply with the order was not wilful and mala fide. (Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA), at para. 42).
[12] Ms Van Der Merwe, who appeared for the applicant, has correctly submitted that the respondent’s attempt to explain his failure to comply with the order was inadequate, since he was only able to provide some explanation - though inadequate it had been – for the period commencing on 31 July 2018. This was in fact the lacuna in the respondent’s case that Mr Olivier was hoping to cure by filing further affidavits. As things stand, however, the respondent has not explained his failure to comply with his legal obligations prior to this date. This is in itself sufficient reason to assume wilfulness and mala fides on his part.
[13] In the event, his explanation regarding problems he had with suppliers and sub-contractors was also deliberately vague since he did not say exactly what those problems were and why they could not have been resolved timeously. His reliance on ill-health was also wholly unsatisfactory since, on his own admission, he was still able to manage “several hundred other sites” around the country.
[14] I am accordingly of the view that the perfunctory and unsatisfactory explanations provided by the respondent are not sufficient to discharge his evidentiary burden to prove that his failure to comply with the order was not wilful and malicious. In the circumstances the applicant has proved beyond a reasonable doubt that the respondent is in wilful and mala fide contempt of the court order.
[15] In the result there is an order in terms of paragraphs 1, 2, 3 and 4 of the applicant’s notice of motion.
__________________________
J.E SMITH
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff : Advocate C Van Der Merwe
Attorneys for the Plaintiff : Netteltons Attorneys
118A High Street
Grahamstown
Counsel for the Defendant : Advocate WH Olivier
Attorneys for the Defendant : Dold & Stone Inc.
10 African Street
Grahamstown
Date Heard : 06/12/2018
Date Delivered : 04/06/2019