… for ignoring court order

PERHAPS it’s because I live in the quiet platteland myself that I was so interested to read last week’s decision in the case of Bickel v Brown, a dispute between the owners of two neighbouring properties in Gonubie, outside East London.

The area where they all live is zoned for agricultural use, but during 2007 two trustees of the Amos Brown Holding Trust, Sammy Amos Brown and Simon Amos Brown, began using their property as a conference and wedding venue. For this purpose they converted a building on their property close to the boundary with one of their neighbours, Alexa Bickell.

Not surprisingly she was unhappy about the new ‘facility’ and the way it introduced a noise-generating business into her previously quiet area – without any zoning change permission.

Late night and weekend revellers caused a level of noise that Bickell found intolerable and when the parties were unable to reach any agreement she went to court. The resulting court order, issued in August 2010, could hardly have been clearer. For example, no noise-generating functions could take place until the present building was demolished and another, soundproof, structure built in its place. Judge John Smith who granted the 2010 order said the new building was not even to be begun until solutions to the issues raised by neighbours had been incorporated into a design approved by the department of economic development and environment affairs.

Since then however Bickell has gone back to court three times claiming her neighbours were in contempt of court because they ignored the order to stop all wedding and conference functions until the court’s conditions were met. Last week’s decision by Judge Glenn Goosen was the first of these three to reach finality, and his finding can have left the Amos Browns in no doubt as to their fate if they overstep the mark again.

They tried to excuse their behaviour – flagrantly ignoring the provisions of the court injunction – by saying that they had received a rezoning notice from the municipality. Not fully understanding its significance they had ‘taken advice’ and had been assured that it meant they could go ahead and host any event at their centre.

Judge Goosen dismissed this explanation. How could they have believed that the letter meant they could now ignore all the conditions imposed by the court in its 2010 order? And in any case the letter from the municipality itself was quite clear. Part A of the letter told the Amos Browns that the council had agreed to approve the application for rezoning subject to no fewer than 67 specific conditions.

The next part of the letter again made it clear: the property was not to be used for the purposes permitted by the new zoning ‘before every condition above has been complied with’.

There was no doubt, said the judge, that the original court order had not been complied with – the building had not been demolished to make way for a soundproof venue, for example. He discounted the excuses offered by the noisy neighbours, and formally declared they were in breach of the 2010 order.

Judge Goosen said this was a very serious offence which by its nature ‘undermines the very fabric of due process of law, and erodes the rule of law.’ The fact that Bickell had to go to court so often to ask that the court give effect to the 2010 order, plus the fact that from the outset they used the property for events without first having obtained an appropriate re-zoning of the property, all ‘reflects poorly’ on the Amos Browns as having ‘paid scant regard to the rights and entitlements of their neighbours.’

Judge Goosen found the two trustees in contempt of court and fined them R20 000 to be paid within 10 days, with a six month imprisonment term waiting for both of them if the fine is not paid on time or at all. In addition, if they are found in contempt of court again during the next three years, they will be jailed for six months.

Finally, as a sign of judicial disapproval of their behaviour, they were ordered to pay the legal costs of the case on a punitive scale.

Will this punishment finally convince the Amos Browns to obey the law – who knows? But you don’t even have to live in the platteland to know one thing for certain: their neighbours, fired up by this famous victory, will now be watching like a keen roost of kestrels to see that every judicial instruction in that 2010 court order is obeyed.