Cathay Pacific Airways Ltd v Hai Lin

• Jurisdiction: South Africa
• Judge: Spilg J
• Judgment Date: 11 November 2015
• Docket Number: 2014/22434
• Court: Gauteng Local Division, Johannesburg
• Hearing Date: 10 November 2015
• Citation: 2015 JDR 2636 (GJ)

Spilg J:

THE APPLICATION

1

This is an application for leave to appeal. The first applicant was the third respondent in the initial contempt proceedings brought by the present respondents. To avoid confusion it will be referred to by name. The second applicant, Ms Jones, was subsequently revealed as the senior responsible manager whose identity the airline was prepared to disclose at the relevant time. This resulted in the contempt proceedings not being pursued against the individual who had initially been cited. Jones was then made a party to the contempt proceedings through the issue of a rule nisi and given an opportunity to show cause why she should not be held in contempt of two of the three court orders issued by my brother Wright J.

2.

Although the present application is brought only in the name of the original third respondent it appears that the intention was also to apply for leave on behalf Jones. After a brief adjournment Adv Waner confirmed that there was no objection to the present application also being proceeded with on behalf of Jones.

3.

There are some 48 grounds of appeal. They range from a claim that the orders granted by Wright J were a nullity because there was neither a notice of motion to support the initial application to stop the children boarding the flight, nor a written court order to that effect, to a contention that the requisites of each element of contempt was not demonstrated; and from Wright J being precluded from granting the second order on the grounds that he was functus officio to this court having imputed knowledge to Cathay Pacific when there was no evidence that its controlling mind was aware of the orders.

4

At the hearing, Adv Stockwell on behalf of Cathay Pacific and Jones advised that all the grounds of appeal were persisted with. However when requested to deal with the issue of the fines imposed, he confirmed that they were not

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appealing the fines or sentences imposed; only the orders made holding the present applicants to be in contempt.

GROUNDS RAISED FOR THE FIRST TIME

5

The grounds cover a number of issues that are now raised for the first time and generally concern the manner in which Wright J dealt with the matter procedurally and substantively. They include whether or not the court could entertain the matter without a notice of motion, whether contempt proceedings can be entertained if an order is only telephonically communicated by the court to the person representing a respondent, but who refuses to provide contact details of anyone else in authority, or where no order is subsequently typed out and where hearsay allegations are relied upon to grant an order without affording the respondent an opportunity to respond.

6

These grounds form the basis for the main submission that, aside from the question of whether the appeal has reasonable prospects of success [1] , the Supreme Court of Appeal should consider laying down parameters both in regard to how an urgent application is to be brought and how an order is to be communicated in order to be effective; this would include whether a notice of motion is a prerequisite and whether the import of the order can be simply communicated by the court telephonically.

In this regard the applicants rely on section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013 which allows this court to grant leave to appeal if it is of the opinion that "… there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration"

7

The judgment of Flemming DJP in Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 (W) was the only case referred to in support of the

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contention that the filing of a notice of motion is a sine qua non before a court will entertain any urgent application.

In that case an application was launched on 10 January 1992 to declare the applicant an employee despite his purported dismissal as managing director on 13 December the previous year. The timing alone demonstrates that the court was not concerned with a case of pressing urgency such as the present (let alone one involving the violation of fundamental rights of freedom and the child).

Moreover the court's focus in Gallagher was to criticise the use of the short form notice of motion (Form 2) as the template in urgent applications where prior notice is not dispensed with and to adopt the long form notice (Form 2(a)) or the amalgamation of both, suitably adjusted, in a single notice of motion [2] . This case led to the Part A and Part B single notice being adopted as standard practice in this division.

8

Gallagher does not address the question of whether a notice of motion is peremptory irrespective of the exigencies that may prevent the court's pronouncement reaching the respondent before it is too late. If it were so then form would be rendered more important than providing court protection and one would have expected the court to deal with that consequence in some detail.

It is evident that the gravamen of the decision, which is...