IN THE SUPREME COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)

							Case No.:  3805/2004

In the matter between:

CITIBANK N.A.							Applicant

and

OCKERT PETRUS VAN ZYL N.O.		First Respondent
JACOBUS JOHANNES VAN ZYL N.O.	    Second Respondent

HEARD ON:		25 NOVEMBER 2004

JUDGMENT:		VAN DER MERWE J

DELIVERED ON:	9 DECEMBER 2004

[1]	These are civil proceedings for contempt of court based on 	alleged failure or refusal by respondents to comply with 	orders of the magistrate’s court, Bloemfontein.

[2]	During September and October 2002 the applicant and 	C.I.T.I. Trust No. IT1268/02 (“the trust”) entered into 45 	separate instalment sale agreements in respect of 45 	trucks, truck tractors, trailers and motor vehicles.  It is 	admitted by respondents that the applicant is the owner of all 	but one of 	these 45 vehicles.  Applicants allege that the 	trust breached 	each of the aforesaid instalment sale 	agreements by failing 	to punctually pay the monthly 	instalments in terms thereof.   The applicant says that on 9      	September 2004 	the total indebtedness of the 	trust 	in 	respect of the instalment sale agreements amounted to
	R10 	346 282,36 and that at that date the trust was in 	arrears with payment of monthly instalments in the amount of 	R1 002 073,92.  As a result, so applicant states, it cancelled 	each of the instalment sale agreements as it was entitled to 	do.  These averments are denied by respondents.

[3]	It is common cause however that the applicant issued 	summons out of the magistrate’s court for the district of 	Bloemfontein in which is claimed inter alia the confirmation of 	the termination of each of the aforesaid instalment sale 	agreements, consequent return of the vehicles owned by the 	applicant, damages to be proved and ancillary relief.  The 	action is defended by respondents.   In terms of clause 10 	of each of the instalment sale agreements the applicant 	approached the magistrate’s court for the district of 	Bloemfontein on an urgent basis and ex parte for an interim 	attachment order in respect of all the vehicles in 	question.  Such order was granted on 28 September 2004.  	In terms of the order of 28 September 2004 a rule nisi 	operating as interim order and with return date 28 October 	2004 was issued calling upon the respondents to show 	cause why an order of attachment and safekeeping in 	respect of the vehicles pending the applicant’s action for 	return of the vehicles, should not be made.  In terms of the 	order the return date thereof could be anticipated by the 	respondents upon giving 12 hours notice to the applicant.

[4]	On 30 September 2004 the deputy sheriff of Bloemfontein 	served the 	order as well as the application papers on both 	first respondent and second respondent at the principal place 	of business of the trust.  According to the return of service of 	the deputy sheriff, he was informed by both first respondent 	and second respondent that all the vehicles were outside of 	the jurisdiction of the deputy sheriff as they all 	were utilized 	countrywide at the time.  The deputy sheriff therefore was 	unable to attach or remove any of the vehicles.  Both 	respondents however undertook to immediately see 	thereto that the vehicles be brought within the area of 	jurisdiction of the deputy sheriff for purposes of attachment.  	This, also according to the return of service, was never done.  

[5]	On 4 October 2004 the respondents filed a notice in terms of 	which the return date of the rule nisi dated 28 September 	2004 was anticipated.  As a result, on the morning of 5 	October 2004, the attorney of the applicant instructed the 	deputy sheriff not to proceed with the execution of the order 	pending the outcome 	of the hearing on the anticipated 	return date.  This hearing took place on 5 October 2004.  	Judgment was reserved.  Judgment confirming the rule nisi 	was handed down on 14 October 2004.  On the same day, a 	notice of appeal in terms of which it is purported to note an 	appeal against the judgment of 14 October 2004, was filed 	on behalf of the trust.  

[6]	On the morning of 15 October 2004, the deputy sheriff again 	attended the place of business of the trust.  There he met 	only the first respondent.  The deputy sheriff enquired from 	the first respondent in respect of the whereabouts of the 	vehicles and also informed him that he had been instructed 	to lay criminal charges if the vehicles are not made available 	for attachment immediately.  The first respondent then 	telephoned his attorney who subsequently himself spoke to 	the deputy 	sheriff.  The deputy sheriff was informed, 	apparently on the strength of the notice of appeal, that the 	vehicles would not be made available for attachment and 	that the applicant is welcome to lay such criminal charges.  	According to the 	return of service of the deputy sheriff, he 	went by the place of business of the trust everyday thereafter 	until 19 October 	2004 at13H00 and on all these occasions 	none of the vehicles were at the premises of the trust.  It is 	common cause that none of the vehicles were made 	available for attachment to date and none were attached.

[7]	First respondent’s only complaint in respect of the 	abovementioned 	matters mentioned in the return of service 	is that it constitutes hearsay evidence.  This complaint is 	devoid of 	any merit in view of the provisions of section 17 	of the Magistrates’ Courts Act, No. 32 of 1944 which section 	provides that the return shall be prima facie evidence of the 	matters therein stated.

  [8]	The application 	in this Court was brought on an urgent 	basis whereafter it was postponed by agreement to 25 	November 2004.  It was not disputed that the application was 	properly brought as a matter of urgency.   

[9]	It is convenient to deal at the outset with the position of the 	second respondent.  Second respondent was cited in the 	application in the magistrate’s court solely in the capacity of 	trustee of the trust, as was first respondent.  It is clear 	therefore that the application was brought and the orders in 	the magistrate’s court granted against the trust, naturally 	represented by its trustees.  In the answering affidavits it is 	stated that although second respondent previously was a 	trustee of the trust, since 8 July 2002 first respondent was 	and still is the sole trustee of the trust.  This is confirmed by 	the letter of authority issued in terms of the provisions of the 	Trust Property Control Act, No. 57 of 1988 by the Master of 	this Court on 8 July 2002.  This document forms part of the 	annexures to the founding affidavit.  It is stated by first 	respondent that when the instalment sale agreements were 	entered into, he was mistakenly under the impression that 	the second respondent was still a trustee of the trust.  The 	evidence in the replying affidavit in respect of the alleged 	participation of second respondent in the affairs of the trust is 	vague in the extreme.  In any event the applicant cannot be 	allowed to make a case against second respondent in reply.  	It follows that in the circumstances the orders of the 	magistrate cannot be regarded as orders granted against 	second respondent.  Also, accepting that second respondent 	also gave an undertaking to the deputy sheriff to assist in 	making the vehicles available, it has not, in my judgment, 	been shown by the applicant that second respondent caused 	the trust to disobey the orders against the trust.

[10]	It is clear from what is stated above that the orders in 	question were granted against the first respondent, being the 	sole trustee of the trust and that first respondent was served 	with the orders and/or informed of the grant thereof.  It is also 	clear that first respondent did not in any way comply with any 	of the orders.  Nevertheless, the committal of first respondent 	for contempt of court was resisted, on three main grounds.  	Counsel for first respondent submitted in the first place that 	this Court has no jurisdiction to entertain proceedings for 	committal for contempt of court in respect of orders made by 	another court, such as the magistrate’s court.  In the second 	place it was contended that the notice of appeal filed on 14 	October 2004, suspended the order of confirmation of the 	rule nisi and that therefore, thereafter no order was in 	operation and consequently no order could be disobeyed.  In 	the third place, in the alternative, it was submitted that  	disobedience of the orders by first respondent was not wilful 	or mala fide.  I deal with these contentions in turn below.

[11]	In support of the argument that this Court has no jurisdiction 	to make an order of committal of a respondent to prison for 	civil 	contempt in respect of the order of another court, 	counsel for first respondent relied on the decision in 	WRIGHT v ST MARY’S HOSPITAL, MELMOTH AND 	ANOTHER 1993 (2) SA 226 	(D & C).  In this judgment, 	Magid J held that the High Court has no jurisdiction to make 	an order for committal to prison for contempt of court in 	respect of disobedience of an order of the then industrial 	court.  Magid J also held that the industrial court itself had 	the power to do so.  In FOOD AND ALLIED WORKERS 	UNION v SANRIO FRUITS CC AND OTHERS 1994 (2) SA 	486 (T), De Klerk J disagreed with the finding that the 	industrial court had the power to entertain proceedings for 	committal for contempt of court in respect of failure to comply 	with its orders.  He however held that he considered this 	finding in the WRIGHT-case to be an obiter dictum but that 	for the reasons given in the WRIGHT-case, the High Court 	had no jurisdiction to make orders for committal for contempt 	of Court in respect of failure to comply with an order of the 	industrial court.   In FOOD AND ALLIED WORKERS 	UNIONS v SCANDIA DELICATESSEN CC AND ANOTHER 	1999 (3) SA 731 (D & C) Page J found 	it unnecessary to 	decide the issue of the power of the industrial court to 	commit for civil contempt of court and found that for the 	reasons stated in the WRIGHT-case and the SANRIO 	FRUITS-case the High Court had no jurisdiction to issue a 	committal order for contempt of an order of the 	industrial court.  In an unreported judgment of this Division 	subsequently brought to my attention by the applicant’s 	attorney of record with the consent of his colleague for 	respondents, namely the case of 	PIEK v AMSTRONG 	AND ANOTHER,  Appliation No.:  	800/2000, Malherbe J, as 	he then was, declined to follow the conclusion in the 	WRIGHT-case in respect of an order of the magistrate’s 	court.  However, I consider the matter to have 	now 	been 	settled by the judgment of the Constitutional Court in the 	matter of BANNATYNE v BANNATYNE (COMMISSION 
	FOR GENDER EQUALITY, AS AMICUS CURIAE) 2003 (2) 	SA 363 (CC).

[12]	The BANNATYNE-case dealt with contempt of court 	consisting of failure to comply with an order for payment of 	maintenance made by a maintenance court.  A maintenance 	order is of course regarded as an order ad factum 	praestandum.  My understanding of this judgment is that the 	High Court, as an incident of its ordinary jurisdiction, has 	a 	discretion to enforce the judgment of another court by civil 	proceedings for committal for contempt of court.  The 
 	High Court	will exercise this discretion when it is 	warranted by what was referred to as good and sufficient 	circumstances.  What 	constitutes good and sufficient 	circumstances in any particular case will to a large extent, 	but to my mind not exclusively, depend on whether or not 	effective alternative remedies are available to protect the 	right in question.  In my judgment therefore, the first 	submission on behalf of first 	respondent stated above, must 	fail.  

[13]	When the rule nisi was confirmed on 14 October 2004, the 	initial order of 28 	September 2004 had served its purpose.  	There is no doubt however, in my view, that the confirmation 	order of 14 	October 2004 is an interlocutory order.  This 	order expressly serves as an interim or pendente lite 	attachment order pending the outcome of the action 	instituted by the applicant for the return of the vehicles.  Such 	order is not appealable.  See Jones & Buckle, The Civil 	Practice of the Magistrate’s Courts in South Africa, 9th 	Edition, Vol. 1, page 350.  	Counsel for first respondent, as 	I understood him, did not seriously dispute that the order in 	question is not appealable but argued that filing of the notice	of appeal nevertheless had the effect of suspension of the 	order of 14 	October 2004.  This argument is unacceptable.  It 	is correct that in terms of the common law a judgment or 	order of a magistrate’s court is automatically suspended by a 	noting of an appeal against that judgment or order.  This rule 	however, in my judgment, pre-supposes a valid notice of 	appeal or appeal.  See by analogy the decisions of 	MODDER EAST 	SQUATTERS AND ANOTHER v 	MODDERKLIP BOERDERY (PTY) LTD [2004] 3 ALL SA 	169 (SCA) para. 	[46]  and ABSA BANK LIMITED v OLIVIA 	PROPERTIES 	1999 (4) SA 554 (W) in respect of High 	Court Rule 49(11).  	As the order in question is not 	appealable, there is no valid 	notice of appeal and no valid 	appeal and therefore the order of 14 October 2004 was not 	suspended.

[14]	The third contention referred to above requires a 	consideration of the applicable onus and standard of proof.  	In the pre-constitutionional era it was settled law that in civil 	proceedings for committal to prison for contempt of court an 	applicant has to show on a balance of probabilities that an 	order was granted against the respondent, that the 	respondent was either served with or properly informed of 	the grant of the order against him and that the respondent 	either disobeyed the order or neglected to comply with it.  	Once these matters are shown, the onus is on the 	respondent to show that his disobedience was not wilful for 	mala fide.  	This is an onus proper and not a mere evidential 	presumption; therefore it must be satisfied by the 	respondent on a balance of probabilities.  See for instance 	NOEL LANCASTER SANDS (EDMS) BPK v THERON EN 	ANDERE 1974 (3) SA 688 (T) at 691 and CULVERWELL v 	BEIRA 1992 (4) SA 490 (W) at 493 E.  These principles 	were confirmed by the Appellate Division in PUTCO LTD v 	TV & RADIO GUARANTEE CO (PTY) LTD 1985 (4) SA 809 	(A) at 836 D – E. 

[15]	In UNCEDO TAXI SERVICE ASSOCIATION v MANINJWA 	AND OTHERS 1998 (3) SA 417 (EC) Pickering J 	reconsidered these principles in the light of the Constitution 	of the Republic of South Africa, Act No. 108 of 1996.  He 	concluded that the practice of bringing summary proceedings 	by way of notice of motion in respect of civil contempt of 	court is not unconstitutional.  However it was held that it is 	unconstitutional to deprive a person of his/her liberty for 	contempt of court on proof merely on a balance of 	probabilities and that it is unconstitutional to place an onus 	upon 	the offender.  It was therefore concluded that in motion 	proceedings in respect of contempt of court the guilt of the 	offender must be proved beyond reasonable doubt.  In a 	further decision emanating from the Eastern Cape,  	UNCEDO 	TAXI SERVICE ASSOCIATION v MTWA AND 	OTHERS 	1999 (2) SA 495 (EC), this judgment was 	followed.  It was 	also held in accordance with general 	principles 	applicable to proof beyond reasonable doubt, 	that when it was shown that an order was granted against 	the respondent, that the respondent was served with the 	order or informed thereof and that the respondent disobeyed 	the order or neglected to comply therewith, that would 	generally constitute prima facie proof of wilfulness and mala 	fides on the part of the respondent.  Such prima facie proof 	places an evidentiary burden (“weerleggingslas”) on the 	respondent to disturb the prima facie case.  If the 	evidence of the respondent raises a reasonable doubt as to 	wilfulness or mala fides, the respondent must be found not 	guilty.  If however for whatever reason the prima facie case 	in this regard is not disturbed, the respondent may be 	convicted.  

[16]	I respectfully agree with these decisions.  To my mind it is of 	vital importance for the proper administration of justice that 	the remedy of civil proceedings in respect of contempt of 	court remains available.  However, in my view the decisive 	factor is that a respondent committed for civil contempt of 	court is punished because he or she had been convicted of 	the crime of contempt of court.  This is clear 	from inter alia 	the judgment in the case of S v BEYERS 
	1968 (3) SA 70 (A) at 80.  In terms of the provisions of 	section 35(3)(h) of the Constitution a person may only be 	convicted upon proof beyond reasonable doubt. It is in 	conflict with section 35(3)(h) of the Constitution to 	convict a 	person upon a mere balance of probabilities and to 	place a 	so-called reverse onus on that person.  In my view it is also 	not reasonable and justifiable to limit the rights of the 	offender in terms of section 36 of the Constitution.  It does 	not matter, in my judgment, whether the proceedings that led 	to conviction for contempt of court were instituted by the 	State or by a private citizen.  This is in my view inter alia 	Illustrated 	by the fact that in a private prosecution in terms 	of section 7 of the Criminal Procedure Act, No. 51 of 1977, 	the onus and standard of proof do not differ from those 	applicable to a prosecution by the State.  Contempt of court 	is in the first place the business of the courts.  And the courts 	have wide 	powers to obtain further evidence if required by 	considerations of justice.  It follows that I respectfully 	disagree with the contrary conclusion reached in 	LAUBSCHER v LAUBSCHER 2004 (4) SA 350 (T).

[17]	It must therefore be decided on the facts whether it is 	established beyond reasonable doubt that the first 	respondent is guilty of contempt of court in respect of any of 	the aforesaid orders of the magistrate’s court.  For this 	purpose the period from the morning of 5 October 2004, 	when the attorney for the applicant instructed the deputy 	sheriff not to proceed with the execution of the order of 28 	September 2004 pending judgment on the application in 	respect of the hearing on the anticipated return date, until 14 	October 2004, when the said judgment was delivered, will be 	excluded from consideration.  In respect of the non-	compliance with the order between 30 September 2004 and 	4 October 2004 the starting point is that the first respondent 	undertook to make the vehicles available to the deputy 	sheriff for attachment.  In his answering affidavit first 	respondent dealt with his failure to comply with the order 	during the period in question virtually in one sentence, simply 	saying that during that period all the vehicles were out of 	town.  No explanation whatsoever was given as to why none 	of the vehicles returned to the place of business of the trust 	or as to why of the drivers of the vehicles could not be 	contacted to so return.  The evidence of the first respondent 	in this regard is so cryptic and seriously unconvincing that it 	cannot in my judgment be regarded as reasonably possibly 	true.  Regarding the period since 14 October 2004 	consideration must be given to the fact that the notice of 	appeal was delivered on that date and whether that fact 	raises a reasonable doubt in respect of whether the 	disobedience of 	the order was wilful and mala fide.  The 	difficulty here however is that the first respondent simply 	nowhere stated or said that he at the time had been advised 	by his attorney that the notice of appeal suspended the order 	of 14 October 2004 and that 	therefore first respondent was 	not obliged to comply and that he believed such advice to be 	correct.  The stereotyped expression in the answering 	affidavit, nl. “Ek is geadviseer …”, does not assist the first 	respondent in this regard.  For all I know, on the evidence of 	the first respondent his attitude at the time may have been 	that he does not care what his attorney does but he will not 	comply with the order.  There are in fact several indications 	from 	the conduct of the first respondent and the tenor of his 	answering affidavit that the first respondent had no intention 	to comply with the order.  This includes the fact that 	apparently from 15 October 	2004 to 19 October 2004 none 	of the vehicles attended the 	premises of the trust.  In these 	circumstances I do not 	believe that I should speculate in 	respect of something that 	the first respondent could easily 	have said.  In my judgment 	therefore, it is established 	beyond reasonable doubt that the 	first respondent is guilty of 	contempt of court in respect of both the orders of 28 	September 2004 and 14 October 2004.

[18]	What remains to consider is whether I should nevertheless in 	the exercise of my discretion refuse to deal with the first 	respondent.  The magistrate’s court, being a creature of 	statute, has no power to entertain civil proceedings for 	contempt of court.  It is correct that in terms of section 106 of 	the Magistrate’s Court’s Act, No. 32 of 1944 first respondent 	may be prosecuted for the criminal offence created by that 	section.  In 	the founding affidavit it is stated that for the 	applicant to lay criminal charges against first respondent will 	not provide an effective remedy as it will probably take a 	very long time for criminal proceedings to be finalized.  This 	is not disputed by first respondent and accords with general 	experience.  This is also illustrated by the attitude displayed 	by the attorney for first respondent to the deputy sheriff in 	respect of criminal charges. In the meantime however, the 	trust will continue to use the vehicles in direct contravention 	of a court order and thereby continually decrease the value 	thereof and expose the vehicles to risk. In terms of the 	instalment sale agreements the trust consented to the 	jurisdiction of the magistrate’s court.   I am satisfied that 	there are good and sufficient circumstances in this case 	warranting the exercise of my discretion in favour of the 	applicant.  

[19]	In its notice of motion the applicant also moved for orders 	that the orders of the magistrate’s court be declared orders 	of a competent court and that this Court order the 	respondents to comply with the order of the magistrate’s 	court.  In my judgment it is not necessary or proper to make 	such orders.

[20]	The following orders are made:

(1)	First respondent is convicted of contempt of court in respect of the orders granted by the magistrate’s court of Bloemfontein on 26 September 2004 and 14 October 2004 under case no. 34346/2004.
(2)	First respondent is committed to prison for a period of 60 days, which order of committal is suspended for a period of 1 year or until finalization of the action instituted by the applicant against the C.I.T.I. Trust in the magistrate’s court of Bloemfontein, whichever happens first, on condition that the first respondent complies with the aforesaid order of 14 October 2004 within 10 days of date of this judgment.
(3)	First respondent is ordered to pay the applicant’s costs.  
(4)	The application against second respondent is dismissed with costs.

					_________________________
					C.H.G. VAN DER MERWE,  J

On behalf of Applicant:		Advocate A Mooij
					Instructed by
					Rosendorff Reitz Barry
					BLOEMFONTEIN

On behalf of Respondents:	Advocate HJ Benade
					Instructed by
					Goodrick & Franklin
					BLOEMFONTEIN

/ec