Man loses battle to hold landlord in contempt after failing to identify stranger who took his car

Court rejects contempt bid against landlord who could not identify person who removed car.

A Johannesburg man has lost a court battle to have a landlord declared in contempt of court after the landlord failed to identify a stranger who removed his car from a rented property, with the High Court finding that he could not be punished for failing to provide information he did not have.

The South Gauteng High Court in Johannesburg dismissed Renias Mutshipisi’s contempt of court application against Greg Shering, finding that Shering had made reasonable efforts to comply with an earlier court order but could not identify the person who took the vehicle.

Acting Judge J Mitchell ruled that Shering’s inability to comply with the order was genuine and that contempt of court required more than simply failing to comply with a court order.

“The contempt application fails because we don’t hold people in contempt for not doing what they can’t do,” Mitchell said.

The dispute began after Mutshipisi lent his car to his friend, Jamaine Mazambani, who kept it on a vacant property rented from Shering.

According to Shering, Mazambani’s lease eventually came to an end, but he left the property with several vehicles and rubble behind.

Shering said he repeatedly asked Mazambani to remove the vehicles but received no response. He eventually concluded that the vehicles had been abandoned.

He described the cars as looking like scrap metal and said he needed to clear the property to make it presentable for a new tenant.

Shering later encountered a stranger at a gym who offered to help remove the vehicles.

The stranger allegedly told him that he knew someone who could assist and that the removal would cost Shering nothing because the person would recover his expenses from the vehicles.

Shering agreed to the arrangement but said he did not exchange any documents or personal details with the stranger.

He was also not present when the vehicles were removed.

After losing his car, Mutshipisi approached the court seeking its return from Shering.

However, the court could not grant the primary relief because Shering was no longer in possession of the vehicle.

In the earlier proceedings, the court instead ordered Shering to provide Mutshipisi with the name, address and contact details of the person or entity that removed the vehicle from his property.

Shering subsequently informed Mutshipisi’s attorneys that he could not provide the information because he had never obtained the stranger’s identity or contact details.

He maintained that he had disclosed everything he knew about the removal of the vehicle.

Mutshipisi was dissatisfied with the explanation and returned to court, seeking a contempt finding and an order compelling Shering to comply with the earlier judgment.

In considering the application, Mitchell said Shering had explained in detail how the vehicles were removed and why he could not identify the stranger.

The judge found that Shering’s version was not far-fetched or clearly untenable and that Mutshipisi had failed to establish, on the probabilities, that it was false.

The court said Mutshipisi had chosen motion proceedings, meaning Shering’s version had to be accepted unless it was clearly untenable.

Mitchell found that Shering had rebutted the presumption that his failure to comply with the earlier order was wilful and in bad faith.

The judge also held that impossibility of compliance was a defence to contempt of court.

“Mr Shering doesn’t know who took the car. He has told Mr Mutshipisi all he knows,” Mitchell said.

The judge said Shering had, in at least one sense, complied with the order by doing everything reasonably possible to identify the person responsible.

Mutshipisi argued that Shering had previously raised the issue of impossibility before the court that granted the original order and could not rely on it again during contempt proceedings.

However, Mitchell rejected the argument, finding that the earlier proceedings involved different relief and that Shering had not been afforded a full and fair opportunity to explain why he did not know who removed the vehicle.

The judge said it would be unfair to prevent Shering from raising his inability to comply with the order in the contempt application.

The court emphasised that the existence of an enforceable court order was not enough to establish contempt.

“Contempt isn’t just non-compliance, but wilful and mala fide non-compliance,” the judgment stated.

The court dismissed Mutshipisi’s application and ordered him to pay Shering’s legal costs on the party-and-party scale, including the costs of one counsel on Scale B.

Shering had sought punitive costs, arguing that Mutshipisi knew before launching the contempt proceedings that he could not provide the information.

However, the judge declined to grant punitive costs, finding that the circumstances did not warrant such an order.