Hui v Feng Fu (C of A (CIV) 42 of 2010) [2011] LSCA 5 (20 April 2011)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV) No.42/2010 In the matter between: LU BEN HUI WANG BIN ZHUANG XIAOHUOA LONG YAN WANG LONG YAN XIN GONG XIN GUAN FAN JIANG MING LESOTHO STONE ENTERPRISES (PTY) LTD 1ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4TH APPELLANT 5TH APPELLANT 6TH APPELLANT 7TH APPELLANT 8TH APPELLANT RESPONDENT and ZHAI FENG FU CORAM: Smalberger, JA Scott, JA Howie, JA Heard 13 April 2011 Delivered 20 April 2011 Summary Remittal to High Court for oral evidence. JUDGMENT Smalberger, JA [1] This appeal was directed against (1) the judgment of the court a quo (Nomngcongo J) in which the learned judge held that the first, second and third appellants were guilty of contempt of court for wilfully failing to comply with the order of the High Court in case CIV/APN/253/2010 dated 8 September 2010, and (2) the sentence of 30 days imprisonment imposed on each of them. [2] The contempt proceedings were brought by way of notice of motion. On the affidavits filed of record there are substantial material disputes of fact which bear on the question of the first, second and third appellants’ guilt. That being so, and given the fact that the requisites of contempt have to be proved beyond reasonable doubt (FAKIE NO V CC11 SYSTEMS (PTY) LTD 2006 (4) SA 326 (SCA) Para 42), we raised with counsel for the parties whether this was not a matter which, in the interests of justice, should have been referred to oral evidence. After deliberating with each other counsel agreed that would have been the proper course to have followed. They also reached agreement on what an appropriate order would be. That agreement, with certain modifications, will be embodied in the order we propose to make. [3] The following order is made: 1. The appeal is upheld. 2. The order of the court a quo committing the first, second and third appellants to imprisonment for 30 days for contempt of court is set aside. 3. The matter is remitted to the High Court for a hearing before a different judge, on a date to be arranged with the Registrar, of oral evidence on, and the determination of the following issues arising from the respondents’ application in the court below; 3.1 Whether the first, second and third appellants were aware of, and understood, the order of the High Court dated 8 September 2010. 3.2 Whether the first, second and third appellants were in contempt of the said order. 4. The Registrar of the High Court is requested to give priority to the matter on the roll. 5. There will no order as to the costs of appeal. --------------------- J. W. SMALBERGER Justice of Appeal I agree D. G. SCOTT ---------------------- Justice of Appeal ---------------------- I agree C. T. HOWIE Justice of Appeal For the Appellant : Adv. M. P. Koto For the Respondent : Adv. T. R. Mpaka