In April 2016, the Supreme Court of Appeal (“SCA”) upheld a High Court judgment and ordered that the defendant, (“BSB”), partially demolish a building that they had constructed on an erf in Parkmore. The SCA found that the construction was unlawful as it did not meet the requirements of the applicable Town Planning Scheme, as, inter alia, the building covered more than the prescribed maximum of 60% of the erf area.
Subsequent to judgment being handed down by the SCA, BSB purchased erf 424, which ran adjacent to the erf upon which the building in question was situated, namely, erf 426. BSB thereafter consolidated erfs 424 and 426 and applied to the town planning tribunal for the rezoning of the now-consolidated erf, which application was consequently “approved”, as the COJ failed to timeously address said application, resulting in same being granted by default in terms of section 92 of the Town Planning and Townships Ordinance 15 of 1986.
On 1 June 2016, an article appeared in The Star newspaper, wherein BSB’s owner, Mr. Slim, stated he did not intend to adhere to the court order. Mr. Slim contended that the newly commissioned and consolidated erf – erf 1511 – for all intents and purposes, complied with the provisions of the SCA’s order as the property effectively covered less than 60% of erf 1511.
The owner of the neighbouring property and the applicant herein (“Readam”) instituted action in February 2017 against BSB for contempt of court. The pertinent question before the Court was whether Mr Slim’s actions constituted a wilful defiance of the SCA’s order.
Considerations of Contempt of Court
Firstly, the Court had to determine whether the SCA order, properly interpreted, allowed for the course of action implemented by BSB and, secondly, as a matter of principle and public policy, the Court should allow a litigant to unilaterally refuse to comply with an order of court, despite the result as envisioned by the relevant court order being achieved.
The Court confirmed that the test for defiance of a court order was laid down in the case of Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) which set out that a wilful and mala fide defiance must be proven beyond a reasonable doubt. It was held in the Fakie matter that no onus will rest on a person accused of the contempt, but “development of the common law does not require the applicant to lead evidence as to the respondent’s state of mind or motive. Once the applicant proves the three requisites (order, service and non-compliance), unless the respondent provides evidence raising a reasonable doubt as to whether non-compliance was wilful and mala fide, the requisites of contempt will have been established.”
Accordingly, the Court pointed out that BSB did not offer any explanation for the non-compliance (e.g. impossibility of performance etc.) but instead admitted to taking no steps towards compliance. In the answering affidavit deposed to on behalf of BSB by Mr Slim, it was argued that the SCA order was moot, as erf 426 technically no longer existed as it was subsumed into erf 1511. The Court rejected this outright and held the order remained operative.
BSB further argued that since the order did not indicate any deadlines within which to comply with the order, there was no contempt for non-compliance. The Court once more rejected this argument and held deadlines provided by a court order only serve to make proof of non-compliance easier. It held that BSB’s open declaration of its intent not to comply with the order is sufficient proof of intentional non-compliance, and there is no need to examine if a reasonable time had elapsed since the order was handed down.
Finally, BSB rested its case on the contention that it had not intended to be contemptuous but instead it was envisaged that by consolidating the erven and through the subsequent rezoning application its unlawful endeavour would be rendered lawful ex post facto.
The Court concluded that BSB was in contempt of court as the implemented strategies were inconsistent with the fair meaning applied to the SCA order. The Court pointed out that, properly interpreted, the order stipulated that a demolition must occur, not may occur.
The Court held further that BSB and its owners deliberately did not comply with the SCA order and therefore utilised a dishonest strategy to circumvent complying with the order, subsequently rendering themselves in contempt of court.
In consideration as to whether there was a basis to allow BSB an opportunity to apply to vary the SCA’s order, the Court held that allowing such application would lead to the purging of contempt. In this regard, the Court had to determine, firstly, whether it is appropriate to seek a ‘variation’ that wholly contradicts the purpose of the order that has been given. Whilst variation applications may be granted when compliance in respect of an order is impossible or not in the public interest, such applications cannot be granted merely because compliance therewith is financially disadvantageous. Similarly, an application for the rescission of the SCA’s order would simply permit an unlawful endeavour to be presented as a fait accompli and, therefore, undermine the principle of legality. The Court held that allowing either application would create the impression that property developers could ignore laws and regulations without accountability.
BSB was ordered to comply with the SCA judgment order and (1) submit the demolition plans within 30 days to be approved by the relevant authorities, (2) appoint a certified engineer to approve the partial demolition as being safe and not detrimental to the structural integrity of the building, (3) ensure that, after demolition, the building does not cover more than the prescribed 60% of the former erf 426 and provide ample parking for same, 4) complete the partial demolition of the building within 90 days of the order. Additionally, Mr Slim was sentenced to 30 days imprisonment, wholly suspended pending compliance with the aforementioned orders.
Circumvention of the specific directions of a court as stipulated in an order constitutes contempt of court.
Written by Danmari Bouwer and supervised by Jarryd Spargo , 02 October 2018