CIVIL PRACTICE – MOTION PROCEEDINGS – DISPUTES AS TO ATTEMPTS TO COMPLY WITH COURT ORDER – PLASCON-EVANS RULE APPLIED

CIVIL PRACTICE – MOTION PROCEEDINGS – DISPUTES AS TO ATTEMPTS TO COMPLY WITH COURT ORDER – PLASCON-EVANS RULE APPLIED

In terms of an agreement concluded between the applicant and the first respondent, the applicant was engaged in providing services to assist the first respondent in its farming operations. During the subsistence of that agreement, equipment, machinery and tools were brought to the farm whilst the farming operations were in progress. When the agreement come to an end, disputes arose as to which assets belonged to the applicant or the first respondent as the case may be. Following failed attempts to resolve the existing disputes, the first applicant brought spoliation proceedings in the High court on an urgent basis. The matter came before Parker AJ who  heard the matter as an urgent one and made certain orders in favour of applicant, and the matter was finalized.

Subsequent to that, it became apparent that paragraph 2.2 of the order which directed the parties to prepare a joint inventory list of all assets reflecting the ownership in and to some currently being held and/or found to be on the farm, by 28 February 2021, was troublesome. Given the disputes concerning ownership at that stage, the parties were unable to compile a list and several lists were compiled in the end.

MILLER AJ had to determine whether the respondents were in contempt of the court of the order earlier granted by Parker AJ, and stated that; there were substantial disputes of facts concerning the attempts to comply with the earlier order of court; the onus was on the applicant to prove beyond a reasonable doubt the occurrence of the following:- the existence of the order; that the order came to the notice of the respondents; that the order was not complied with; and, such non-compliance was occasioned by willfulness.

The court followed the approach established in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A) and came to the conclusion that it was not possible to resolve the factual disputes on the papers. The applicant had, on the papers, also failed to prove to the required degree of proof that there was any wilful or intentional disobedience of the order.

In the result, the application was dismissed with costs.

Serve Inv Eight Four v Agricultural Prof Services NAHCMD 9 September 2022