IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 18/2011
In the matter between:
TEBOHO TSOEU APPELLANT
And
BEVERLEY ANN CERFONTEYN 1ST RESPONDENT
MAGISTRATE MAFETENG
(Mr. Mokhesi) 2ND RESPONDENT
THE COMMISSIONER OF POLICE 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
HEARD: 14 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
CORAM: RAMODIBEDI, P
MELUNSKY, JA
HURT, JA
SUMMARY
Contempt of Court – Wilfulness of Disobedience of Order – Inference against accused – Rebuttal of – Application for committal refused.
JUDGMENT
HURT JA
[1] The chronological order of proceedings culminating in this appeal is fundamental to the consideration of the merits and it will be convenient to set out the relevant events at the outset of this judgment.
[2] The chain of relevant events was as follows :
(a) In 1998 a Toyota Hi-Ace vehicle ("the vehicle") was stolen from the first respondent, Ms B. Cerfonteyn ("Cerfonteyn") in Port Elizabeth.
(b) Ten years later, during July 2008, Cerfonteyn was informed that the vehicle had been found and impounded in Lesotho. She was asked to identify it. She travelled to Mafeteng where she positively identified the vehicle as the one stolen from her.
(c) When the vehicle was found in July 2008, the police arrested the person in whose possession it was found, one Paballo Tsoeu, and he was duly charged with theft in the Mafeteng Magistrate's Court under case No. CR355/08. He applied for, and was granted, bail on 15th August 2008.
(d) On 30th May 2009, Paballo Tsoeu died and the criminal proceedings pending against him accordingly lapsed.
(e) On 16th September 2009, the appellant, who is the brother of the late Paballo Tsoeu and the executor of his estate, applied to the Magistrate's Court for the release of the vehicle. The basis on which the application was brought was that the proceedings against Paballo Tsoeu had terminated and the appellant, as his executor, had become the owner of the vehicle. The police and the Attorney General were cited as respondents in the application and it appears that there was service on the police at Mafeteng Police Station. The matter came before the Magistrate unopposed on 8th October 2009 and the vehicle was released to the appellant.
(f) The appellant states that he sold the vehicle later in October 2009, but retained the registration number and applied it to a new vehicle which he purchased almost immediately afterwards. There was no evidence to contradict this version, suspicious as it seems to be.
(g) On 3rd December 2009, Cerfonteyn brought an urgent ex parte application to the High Court, in which she sought an order authorizing the Deputy Sheriff to attach the vehicle and hold it in safekeeping pending the determination of the proceedings. She also sought a rule nisi calling upon the appellant to show cause why she should not be declared to be the rightful owner. The order was duly granted as prayed.
(h) On 15th December 2009, the order referred to in (g) was served on the appellant. The Deputy Sheriff demanded return of the vehicle, but the appellant informed him that he had sold the vehicle in October and therefore could not return it.
(i) An attempt was made by the Deputy Sheriff, assisted by two police troopers, in January 2010, to recover the vehicle from the appellant, but he was not at his home.
(j) On 11th February 2010, Cerfonteyn moved a new application in the High Court, seeking a rule nisi calling upon the appellant to show cause on 15th February why he should not be committed to prison for contempt of court arising from his refusal to hand the vehicle to the Deputy Sheriff.
(k) The rule nisi was granted on 15th February and after it was served, the appellant gave notice of his intention to oppose.
(l) The appellant delivered an opposing affidavit on 22nd February in which he denied the contempt allegations.
(m) The matter was duly argued and, on 25thFebruary2011, Chaka-Makhooane J gave judgment against the appellant, committing him to prison for contempt.
(n) Before the committal order was issued, and on 25th March 2011, the appellant lodged an application to stay execution pending the determination of this appeal and the court granted the stay.
[3] The basis of the appeal is that the learned Judge a quo reached her conclusion that the appellant's conduct had amounted to contempt on an incorrect interpretation of, and an incorrect approach to, the evidence before her. In her judgment, and after referring, in the briefest terms, to the main assertions of the Deputy Sheriff and the appellant, Chaka-Makhooane J said the following :
"Respondent (appellant) argues that by the time the order was obtained he was no longer in possession of the said vehicle. It might very well be so, however, the Deputy Sheriff has shown that he repeatedly insisted that the Respondent provides proof of this sale or he should identify the person he sold it to. Failure to do so leaves the court with no option but to agree with the Applicant that the Respondent's explanation is false and is unsupported."
[4] The passage reflects a number of disconcerting "quantum leaps". In particular, it is not clear whether the learned Judge actually accepted the evidence by the appellant that he had indeed sold and delivered the vehicle – she seems to have been prepared to accept the fact for the purpose of her decision. Nor is it clear on what basis she considered that the appellant was obliged, on pain of imprisonment for contempt, to furnish the Deputy Sheriff with proof that he had sold the vehicle or any other information aimed at assisting the further investigations relating to the vehicle. What is clear, however is that the learned Judge allowed the admittedly suspicious version of the appellant to affect her approach to the evidence. She came to the far-reaching conclusion that the appellant's evidence fell to be rejected without a proper consideration of all the evidence before her and without analyzing it in the manner prescribed in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (AD) at p 634 G to I. Finally, the order itself (the contents of which must necessarily be the touchstone in the investigation into whether the failure to comply constituted contempt) only called upon the appellant to hand over the vehicle, it did not instruct the appellant to furnish the Deputy Sheriff with such information as the Sheriff might consider relevant to the further investigation of the matter.
[4] I think it is important to deal, first, with an assertion by the Deputy Sheriff (who made the founding affidavit in the application under consideration) to the effect that the appellant gave an undertaking, in his application for release of the vehicle in October 2009. The relevant paragraph reads as follows:
"I served the (appellant) with Certificate of Urgency and Court Order on 15th December 2009 but he failed to comply with the said Order restraining him from disposing (of) the aforementioned vehicle, and directing him to release it to me as court custodian. He claimed to have sold the vehicle."
and later :
". . . . in any event in the Mafeteng proceedings when he got the vehicle released; the (appellant) had undertaken not to dispose of the vehicle and to bring it when required to the Court."
The appellant denied these allegations. Indeed they are not supported by any of the evidence before us. There is no reference to any such undertaking in the order of release of the vehicle which simply read :
"The (police) are directed to restore possession of (the vehicle) to (the appellant)."
The Deputy Sheriff's riposte to this denial was that the appellant had given the undertaking in his founding affidavit in the application for release of the vehicle. The statement on which the Deputy Sheriff relied in this regard is equivocal in the extreme and in my view cannot be construed as an undertaking. It must be recalled that the basis on which the application for the release of the vehicle was sought was that the appellant claimed ownership and that the criminal proceedings relating to the theft of the vehicle had been terminated. There would thus have been no necessity for the appellant to return the vehicle for the continuance of those proceedings. I have mentioned this aspect to highlight a misconception on the part of the Deputy Sheriff which may have coloured his attitude to the appellant in the events which followed his attempt to enforce the order for return of the vehicle.
[5] It is trite that, in deciding whether there has been contemptuous disobedience of a court order, once the refusal to comply has been established, the onus of establishing the absence of wifulness passes to the accused. The appellant's explanation for his non-compliance was simply that it was not possible to return the vehicle because it was no longer in his possession. That would ordinarily be a conclusive reason for a failure to comply, but if there is good reason to infer that he parted with possession mala fide and purely for the purposes of frustrating anticipated court directives, his claim to innocence will be refuted.[1]
[6] The issue insofar as the appellant's intent is concerned relates to the question of whether, accepting that he disposed of the vehicle[2], the inference is irresistible that he did so with the intention to thwart the court's directives. I do not think such inference can be drawn in this case. Although there is evidence of the appellant's stubborn refusal to comply with the Deputy Sheriff's demands, Mr L D Molapo, who appeared with Ms N S Molapofor the appellant, drew our attention to the Deputy Sheriff's misconception (referred to in para 4, above) as to whether the appellant had given an undertaking to retain possession of the vehicle. He also pointed out that, while the appellant had refused to give the Deputy Sheriff full particulars about the sale, in the face of aggressive demands therefor, the appellant had subsequently furnished the police with such particulars. The appellant's evidence is not contradicted in this regard and, again, there is no basis for rejecting it out of hand.
[6] A final factor relevant to the drawing of any inference that the appellant intentionally put the vehicle beyond the reach of court process is the fact that the vehicle was released to the appellant as owner and because the criminal proceedings had been terminated. It is difficult to assume that he foresaw that there would be an application by the owner of the vehicle for its recovery. He may have suspected that this might occur, but it cannot be said that this would render his action contemptuous of an order which was only going to be made in five months' time. The short answer to all the suspicions which surround the appellant's conduct in this case is that the application to release the vehicle should not have been allowed to proceed unopposed, and that the police should have followed up on the information given to them by the appellant and recovered the vehicle from the purchaser. The absence of any evidence from the police makes it impossible to draw any justifiable inferences contrary to the appellant's version of what occurred.
[7] It follows that the Judge a quo was not justified in concluding that the appellant's failure to comply with the order to deliver the vehicle to the Deputy Sheriff constituted contempt of court. In relation to the question of costs, it seems to me that each party should bear its own costs of the application for committal. This is because Cerfonteyn, as applicant, would have had to rely on information from an officer of the Court which was probably inaccurate or incomplete or both. However, in the face of the appellant's opposition and the absence of any reliable rebutting evidence, I consider that Cerfonteyn should not have opposed the appeal. In these circumstances I consider it fair to allow the appellant his costs of appeal, save that I do not consider that the costs of two counsel are warranted.
[8] The appeal is upheld. The order of the High Court is set aside and an order for absolution from the instance is substituted therefor. The first respondent is ordered to pay the appellant's costs of appeal, such costs to include the costs of one counsel only.
________________________
N.V. HURT
JUSTICE OF APPEAL
I agree :
M.M. RAMODIBEDI
PRESIDENT OF THE COURT OF APPEAL
______________________
L.S. MELUNSKY
For the Appellant: Adv L. D. Molapo and Adv N. S. Molapo.
For the Respondents: Mr. D. P. Molyneaux.
[1]Putco Ltd v TV and Radio Guarantee Co (Pty) Ltd 1985 (4) 809 (A) at p 836 D to G.
[2]This must clearly be accepted, since there is no evidence to contradict it, nor is it so obviously false that it can be rejected on the papers.
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