IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: 16977/2009

In the matter between:

and

JUDGMENT DELIVERED : 9 DECEMBER 2010

MOOSA, J:
The Contempt of Court proceedings:
[1]       In this matter the applicants sought the following relief:

[2]      Most of the facts are either common cause or undisputed and are as follows:

The Law:

"A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable, may be bona fide."

The Evaluation:
[5] It is common cause that on 3 September 2009 the parties obtained a court order by agreement in terms of which the defendant was found to be in contempt of the default judgment. The defendant was not legally represented and appeared in person. The judgment was granted for specific performance, but did not have an alternative claim for damages. I will leave open the question of whether an unrepresented litigant can agree to be declared in contempt of a default judgment. I will, for the present purposes, assume in favour of the plaintiffs, without making a formal finding that the order obtained on 3 September 2009 was valid and enforceable.

[5] It is further common cause that on 27 October 2009, the parties entered into a subsequent agreement in terms whereof the dates provided for in the said court order for compliance with the building activities were amended by extending the dates of compliance thereof. The said agreement also contained certain additional clauses which were not covered by the court order dated 3 September 2009. The said agreement was not made an order of court. I will once more assume in favour of the plaintiffs without making a formal finding in respect thereof, that the said agreement did not supersede the court order of 3 September 2009 and for all intents and purposes were valid and enforceable.

[6] It is also common cause that the defendant was a party to the court order of 3 September 2009 and I will assume in favour of the plaintiffs, without once more making a formal finding in respect thereof, that the defendant was aware and had knowledge of the contents of such order. I will also assume in favour of the plaintiffs, without making a formal finding in respect thereof, that the defendant had failed to comply with the terms of such order.

[8] It is common cause that the defendant had substantially completed the work, in terms of the contract, by 18 December 2009 when the plaintiffs were handed possession of the dwelling. It appears that what remained was the "snag" list of remedial work. It is common cause that the defendant's father returned to the site after 18 December 2009 to attend to some of the items on the snag list. The undisputed evidence is that prior to 18 January 2010, defendant found himself in financial difficulties and was unable to pay his workers nor able to complete the work as agreed. He requested financial assistance from the plaintiffs but such assistance was refused.

[9] It also appears from the contents of the agreement of 27 October 2009, that the defendant found himself in financial difficulties as this is clearly reflected in clause 7 of the agreement which states the following:
"Defendant shall ensure that he secures the required funds to comply with the court order and PDS reports, Council plans and the original contract. A lack of funds or insufficient funds shall not be a valid reason for any delay in the completion of the contract or reason for late compliance of the court order."

[10] It is common cause that on 21 January 2010, while the defendant was attending to remedy items on the snag list, the plaintiffs ordered the defendant off their property and accordingly prevented him from carrying out further work on the property. The conduct of the plaintiff effectively prevented the defendant from completing compliance with the provisions, if any, of the court order dated 3 September 2009. I agree with the defendant that the plaintiffs continually shifted their goal posts and introduced new terms to the agreement.

The Finding:

E MOOSA