HIGH COURT OF LESOTHO
S. CHABALALA 1ST DEFENDANT
COMMANDING C.I.D. 2ND DEFENDANT
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 12th
day of November, 1991.
Plaintiff : Mr. Molyneaux
Defendants : Mr. Malebanye
Cases referred to:
v DPP & Anor,: CIV/T/647/89;
v. Drever 1 E.D.C. 74;
v. Fraser (1907) TS 318;
v South African Trade Protection Society (1904) TS 94.
an application for committal for contempt of the Court's order to
deliver possession of a tractor to the Deputy Sheriff.
conscious of the fact that the applicant has adduced evidence by way
of affidavit, whereas the respondent and his wife have
voce evidence which has been tested by cross-examination. The
evidence on affidavit is but prima facie - it
been tested by way of cross-examination. It is safer therefore to
proceed on the basis of agreed facts.
comes to the issue of credibility I find that the respondents'
evidence contained contradictions. So also did the evidence
first testified that he did not know the Deputy Sheriff, i.e. on 8th
November, 1991; thereafter he admitted that the latter
him a week earlier, when he knew of his identity and was aware of the
purpose of the latter's visit. He testified
that the police officer
was not in uniform, specifying in detail the clothes that he wore;
then he admitted that he was in uniform.
He stated that the Deputy
Sheriff had no proof of his capacity, yet he admitted that he
understood the nature of the order he produced.
He testified that the
Police Officer "did not show that he was a policeman", yet
he subsequently admitted that the latter
was in uniform and was
armed. He testified that his Attorney did not say anything to him,
yet his wife testified that initially
the latter explained the effect
of the order to the respondent. It was his evidence that he parked
the tractor to get diesel. Then
he added that the valve of the tube
in a tyre had broken. Then he added that the tube was also punctured.
his wife, who had been present in Court throughout her husband's
entire evidence, she testified that the tyre of the
was torn on 8th November, 1991, Then she said the tyre was not 'torn'
but merely deflated. Then she elaborated that it was
but a 'bit
deflated' - in which case of course the vehicle could be moved. She
testified that the respondent spoke to his Attorney
before the Deputy
Sheriff served the Court order. Then she subsequently testified that
such conversation took place after such
afterwards", she said. Then she said that after such service the
police officer prevented the respondent
from approaching his
there are the inherent improbabilities to which the learned Attorney
for the applicant, Mr. Molyneaux refers, It is inherently
that the respondent was willing to hand over the vehicle. His wife,
as indicated, at first suggested that the vehicle
was immobile, which
prevented its removal. She subsequently resiled from that position.
In any event the vehicle was recovered
the following day, with a
completely deflated tyre. The only reasonable inference therefore is
that the respondent resisted seizure
of the vehicle.
accept that an armed police officer, who allegedly prevented the
respondent from communicating with his lawyer, nonetheless
arrest the respondent, unless it is the case that the latter resisted
arrest. I cannot imagine that a police officer,
who had not effected
an arrest would attempt to prevent the respondent from communicating
with his Attorney, five
away. In particular, I cannot accept, on the wife's evidence, that
the Attorney made no protest in the matter.
there is the aspect of not one but two punctures in a short space of
time, and in particular the latter puncture at a crucial
Again, there is the improbability of both a puncture and a broken
tube valve at the sane time.
it to say that I find that the evidence of the respondent and his
wife, which is riddled with inconsistencies, could not
possibly be true, and that the only reasonable inference is that he
resisted delivery of the vehicle and indeed resisted
the requirement of wilfulness. The respondent states that he wished
to have the Court's order read to him in Sesotho. It
was his wife's
evidence however that the Attorney explained the effect of the order
to him. Indeed, the respondent admitted to
having been in Court when
the Court made its order in the matter and that his Attorney
explained that the Deputy Sheriff would
approach him and that he must
hand over the vehicle to the latter. He admitted that when the Deputy
Sheriff first approached him
on 1st November, 1991, he knew that the
latter had come to collect the tractor.
case of Moloi v DPP & Anor. (1) I relied upon the
passge at page 1125 of South African Criminal Law And Procedure
Vol.11 by Gardiner & Lansdown (1957) :
"In an application to commit for contempt for failure to obey an
order of court, it is necessary to prove that the respondent
personal knowledge of the order, but it is not necessary that it
should have been actually served on him - Botha v. Dreyer.
Burgers v. Fraser. (3)."
case of Moloi (1) indeed I held that a third party who had not been
served with, but was aware of the existence of a Court
order, and who
acted contrary thereto, was in contempt thereof .
case of Burgers v Fraser (3) the learned Innes C.J. referred at p.320
to a dictum by himself in the case of Meikle v South
Protection Society (4 ) thus:
" "When an order of court issues, operative as against the
whole world, then any person, however bona fide, intending
action contrary to that order, who is warned of its existence by some
responsible person, like a solicitor or officer of
the court, goes on
at his peril". The Court was there dealing with a notice given
by a responsible person (a solicitor), and
the words used covered the
case then before the Court. But they were not intended to cover - nor
do they in my opinion cover -
every case which may arise. The general
rule may be stated more broadly. I think that where a man has
information, which he has
no reasonable grounds for disbelieving, to
the effect that an order of court has been granted against him, he is
bound to act as
if that order had
been duly served. In every case it is a question of fact. The point
is whether the man when he received the information had any
reasonable ground for disbelieving it. It is not contended here that
the appellant did not believe that the information supplied
was correct. He stood upon a technicality, and demanded that the
order itself should be produced to him. I do not think
justified in taking up that position. We must have regard to the
facts. He had no reasonable ground for doubting the correctness
(the) information, which was in fact true, and he ought not to have
acted as if it were not true. He was not justified in disregarding
that information and acting in defiance of the order of court on the
technical ground that the written order had not been produced."
respondent has admitted that as early as 23rd October, 1991, he was
present in Court and the effect of the Court's order was
him by his Attorney. He has admitted that he was aware of the Deputy
Sheriff's visit on 1st November. His wife has
testified that on 8th
November his Attorney again spoke to him and explained the effect of
the Court's order. The learned Attorney
for the respondent, Mr.
Malebanye, who wished to withdraw from these proceedings, and whom
the Court persuaded to represent his
client at least as to the
application for committal, submits that his client did not act
wilfully. With respect, I cannot agree.
In all the circumstances and
in the light of the above authorities, I cannot see how the
respondent's behaviour could be described
as anything but wilful.
satisfied indeed, as the only reasonable inference,
respondent was fully aware of the Court Order, and that he was
determined to resist it. I find therefore that the respondent
in contempt of Court.
As to his
punishment therefor I wish to hear submissions thereon.
at Maseru This 12th Day of November, 1991.
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