No authority was quoted for this proposition. But, once the applicant had proved the order, service, or notice and non-compliance, the respondent bore an evidentiary burden in relation to wilfulness and mala fides: The result is that I find that the applicant failed to prove contempt of court.
In the alternative the respondent says that he was in the bona fide belief that what he did was not in contempt of the court order, so that no mala fides have been shown to exist and for that reason, as an alternative, he ought not to be found guilty of contempt of court. Towards May of this year, about a month ago if I understand the allegations correctly, the respondent started placing independent or alternative building contractors on the premises and engaged them to start doing what the respondent calls remedial work to the shell, including some structural changes involving partial breaking down of the walls, installation of window frames and also electrical wiring. It is found that the defendant failed to comply with the order of 12 December but established a reasonable doubt as to whether there was mala fides on his part. The applicant, through his attorney, wrote two letters of demand warning the respondent to refrain from encroaching on the undisturbed possession that the applicant enjoyed in terms of the court order. Mr Oosthuizen argued that if the respondent wants to avoid the adverse effects of my order of December he has various options. Mr Oosthuizen did not have it available but he says he found this authority and I accept it on that basis. Should he fail to advance evidence that established a reasonable doubt as to whether his non-compliance was wilful and mala fide, the applicant would have proved contempt beyond a reasonable doubt. The respondent denies that these letters were brought to his attention. Mr Oosthuizen appears for the applicant and Mr Louw for the respondent. The applicant then approached this court on an urgent basis. This urgent application comes before me in the urgent court. But, once the applicant had proved the order, service, or notice and non-compliance, the respondent bore an evidentiary burden in relation to wilfulness and mala fides: The case of the respondent, in a nutshell, is that he denies having infringed or acted in contempt of the order. He can either pay, which he has up to now steadfastly refused to do, or he could pay under protest or he could approach this court to substitute the spoliation order and allow him to give security for payment. Having heard the matter in December, I gave an order, the first paragraph of which reads as follows: It seems to me that there was non-compliance with the order for the reasons I have mentioned. The portion of the head note which I deem to be relevant and which can also be found at paragraphs 42 and 63 to 65 at H to B and at C to F reads as follows: Each party is ordered to pay its own costs. If the defendant repeats his actions or other actions which may lead to be seen as non-compliance with the spoliation order the applicant is given leave to re-approach this court on the same or supplemented papers. Both of them were written to the attorneys of record of the respondent. I cannot accept that that would result in the effective compliance with a court order under these particular and perhaps somewhat unusual circumstances. No authority was quoted for this proposition. The applicant was contractually bound in terms of a contract entered into with the respondent to build a house for the latter. I understood Mr Louw to agree that that was also his interpretation. This application for contempt of court is suspended on condition that the respondent refrains from the actions complained of and which he admits having perpetrated. It seems to me that to ensure that some sanity prevails in this matter, and that some clarity is provided to the parties, it was necessary to deal with these issues as I did and to prevent a recurrence, or in an attempt to do so, I would make the following order.
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