About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2018
>>
[2018] ZAWCHC 192
|
|
LRB and Others v Leatherby (116/2017) [2018] ZAWCHC 192 (7 March 2018)
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 116/2017
In
the matter between:
LRB
First Applicant
GG
Second Applicant
I
(PTY) LTD
Third Applicant
vs
OWEN
BENJAMIN LEATHERBY
Respondent
Coram:
DE WET AJ
Judgment
delivered: 7
MARCH
2018
JUDGMENT
[1]
This opposed application came before me on the return
day of an interim interdict together
with ancillary relief that was
granted by Steyn J on 10 January 2017, and later extended by Dlodlo J
on 13 February 2017, who also
granted further relief.
[2]
In terms of paragraph 21 of the Dlodlo order, the Judge
President of this division, on
request of Applicants made an order on
15 June 2017 setting the application down for hearing on 11 September
2017.
[3]
On 28 August 2017 Applicants filed a document called
“Notice of Additional Relief
to be claimed at the hearing on 11
September 2017”.
[4]
The aforesaid Notice firstly called upon Respondent to
show cause on 11 September 2017
why he should not be held in contempt
and be committed for a period of imprisonment, suspended on such
terms as the Court may deem
appropriate, and secondly advised
Respondent that he should,
inter alia,
“present oral
evidence and/or be present to be cross-examined at the hearing
scheduled for 11 September 2017 in substantiation
of his defence”.
The Notice was not accompanied by a supporting affidavit, nor was the
correspondence relied upon by Applicants
for alleging that Respondent
was in contempt of the interim order dated 10 January 2017 attached
to the Notice. Respondent’s
representative however consented to
the correspondence being handed up and that the contempt application
be heard by way of oral
evidence.
[5]
The Notice further requested that Respondent be
ordered to pay damages in the total
sum of R3 000 000 (R1
million for each of the Applicants)
alternatively
such sum as
the Court may determine. These damages were said to be suffered by
each of the Applicants as a result of the defamatory
statements
identified in paragraphs 2.1.1.1 – 2.1.1.30 and 2.1.2.1 –
2.1.2.11 and 2.1.3 of the Court Order of 10 January
2017
alternatively
, as a result of those comments which the Court
determines to be defamatory and that Applicants be allowed to present
oral evidence
in support of their aforesaid damages claims.
Applicants further requested that
Respondent
be ordered to pay all the costs of the application including all
costs which stood over for later determination, the
costs of the
hearing of evidence/cross-examination, the qualifying and other costs
of Adrie Stander, the appointed forensic investigator,
on the scale
as between attorney and client, which costs were to include the costs
of senior counsel.
[6]
Save for the prayer that Respondent be held in contempt,
the Notice was in essence an application
that this Court hear oral
evidence in terms of Rule 6(5)(g) and an amendment of the relief
claimed in paragraph 2.5 of the Notice
of Motion dated 6 January
2017.
[7]
Respondent in his answering affidavit consented to being
bound by the interim interdict
pending the further determination of
the issues in dispute by way of an action to be instituted by
Applicants in due course, but
at the hearing of the matter Respondent
requested that the issues pertaining to his defences, the damages
claimed and costs, be
referred to trial in terms of a proposed order
with the interim order remaining in place.
[8]
The Court therefore had to determine the following
issues:
8.1
Whether Applicants are entitled to a final interdict on the papers,
and if not, whether the ambit of the provisional
order should be
limited;
8.2
Whether, should the Court not be able to determine the dispute
pertaining to the interdict aspect of the application
on the papers,
the dispute should be referred to oral evidence alternatively trial;
8.3
Whether Applicants should be granted leave to have the issue of
damages referred to oral evidence, alternatively
trial, in light of
the fact that Applicants have requested this Court to grant damages
for defamation on motion;
8.4
Whether all outstanding issues should be referred to trial with the
interim interdict extended until finalisation
of the trial;
8.5
Whether Respondent was in contempt of the orders of this Court dated
10 January 2017, as extended on 13 February
2017, and if so, what the
appropriate sanction should be;
8.6
Whether costs and the specific orders requested by Applicants in
terms of the Notice referred to above, should
be granted against
Respondent.
Background
[9]
Respondent, together with First and Second Applicants,
were previously employed at Third
Applicant. Respondent was employed
as the Financial Director and later also took responsibility for the
information technology
at Third Applicant. First and Second
Applicants are still employees and directors of Third Respondent.
[10]
During March/April 2015 it came to light that Respondent
was still involved in a relationship
with another employee of Third
Applicant, who had threatened to lay criminal charges of sexual
harassment against Respondent.
[11]
On 17 April 2015 Respondent was suspended by Third
Applicant pending further investigation.
Pursuant to the
investigation Respondent was served with the details of a
disciplinary enquiry and the various charges that would
be levelled
against him, including but not limited to the distribution of
pornographic and obscene communication through work servers,
misuse
and/or abuse of company networks, failure to act in good faith,
disruption of the workplace, harassment and insubordination.
[12]
A disciplinary hearing was scheduled to be held in May
2015 and First Applicant represented
Third Applicant in this process.
[13]
Prior to the disciplinary hearing a written Mutual
Separation Agreement, as well as a
Sale of Shares Agreement and a
Confidentiality and Restraint Agreement, was concluded between Third
Applicant and Respondent on
27 May 2015 in terms whereof Respondent’s
employment and shareholding in Third Applicant was terminated.
[14]
It appears from the papers that during October 2015
Respondent commenced with a campaign
against First Applicant by
firstly creating a Facebook profile under the name of “Balding
Intasure” and thereafter
continued to post derogatory remarks
regarding First Applicant under what purported to be First
Applicant’s Facebook profile.
[15]
The aforesaid Facebook profile was deleted by the
Facebook administrator after First Applicant
had lodged a formal
complaint that he had not created the page.
[16]
Also during
October 2015 Respondent created and sent an email to the server of
Third Applicant and distributed it to at least 23
of Third
Applicant’s employees which purported to have been sent by
First Applicant from an address given as
baldingintrasure@yahoo.com
to which was attached a derogatory joke sent by First Applicant to
Second Applicant during 2013.
[17]
After investigations by Applicants and on 24 December
2015, a letter was addressed to
Respondent’s attorney of
record, advising that it had been established that Respondent had
used and send the aforesaid email
from the IP address of his previous
employer, STB Brokers and that Applicants regarded Respondent’s
actions as designed to
damage their reputations and dignity.
Respondent’s attorney of record answered on 14 January 2016 by
simply denying any breach
of confidentiality and did not respond
further to the aforesaid statements.
[18]
Towards the end of 2016 Third Applicant’s claims
department made an error in respect
of a claim lodged by Respondent’s
father-in-law which sparked a fresh attack by Respondent on
Applicants and Respondent reported
Third Applicant to the Financial
Services Board.
[19]
On or about
13 December 2016 Respondent created a Facebook page which
appeared to have been created by First Applicant under the profile
“COMING
SOON FROM THE EMAIL OF THE FABULOUS, THE MAGNIFICENT,
THE GENIUS, LEE BLASPHEMOS BALDING”. A subsequent post made
under the
profile made reference to politically sensitive issues and
was also shut down by the Facebook administrator. Respondent, in
these
proceedings, admitted to creating the Facebook page but denied
that he posted the material reflected in annexure “LB17”
which appeared on pages 128 to 130 of the record.
[20]
Respondent
further created an email account with the name
blashemyblading@gmail.com
from which he sent mails to about 40 staff members and at least 15
clients of which Applicants were aware, with a graphic pornographic
attachment, which attachment was sent to him by First Applicant in
2010. These mails further, in no uncertain terms, stated that
First
Applicant is Second Applicant’s bidet (with an explicit
explanation as to what a bidet is). First Applicant admitted
in reply
that the offensive “private mail” with the attachment was
sent to him in circumstances he considered as private
communications,
and explained that it was sent in January 2010 to Respondent for him
to delete the material. He acknowledged that
the contents were
inappropriate. Respondent boasts in the email wherein he re-published
the offending mail that, prior to it being
removed by the Facebook
administrator, it reached 1665 friends.
[21]
On 1 and 2
January 2017 First Applicant received further emails from a new email
address being
bidetblading@gmail.com
,
created by Respondent, wherein he used vulgar and inappropriate
language with reference to First Applicant. Merely as an example
of
the posts, one mail reads as follows:
“
From:
Bidet Balding bidetblading@gmail.com
Subject:
HAPPY NEW YEAR
Date:
1 Jan 2017, 12:24:20 PM
To:
Lee Balding
Lee@intasure.co.za
HEY
BIDET
We
wish you a very horrid 2017, may it be a year when some more but not
all of your cock ups, laziness and contradictions are exposed
and
that you are seen for the absolute self serving useless prick that
you are. May you have many successful scrotum and anal cleaning
sessions.
Have
a really kak 2017
Love
from THE TEAM”
[22]
On 4 January
2017, this time from his own email address, Respondent
informed Second Applicant that he was not to blame for the “balding
emails” and stated that:
“
Genricks,
I told u not to blame me for the balding emails. You did not listen
as I have received 3 calls from your staff advising
me that you are
doing just that and are going to set your digital detectives onto me.
Let
me be quite clear Genricks, if they come near me, my staff or office
I will have them arrested.
You
and your idiot batman already have a defamation action regarding the
Simpson issue pending which I will now not stand down from
and if any
of the 3 will provide an affidavit then I will hit you with another
defamation action.
Don’t
take me lightly Genricks, I will see u and the idiot fall.”
[23]
On the same
day another mail from
bidetblading@gmail.com
was received in which Respondent under his pseudo-name promised
another porn email, but this time a video, which would be sent
in due
course. Another threatening mail was sent on 5 January 2017 from the
same email address.
[24]
These threats
were the proverbial last straw and Applicants launched
an urgent application on 6 January 2017 to interdict Respondent from
continuing
with his conduct. The papers were served on both
Respondent and his attorney, Mr Ferguson.
[25]
Respondent
did not oppose the application for interim relief on 10
January 2017. A Rule
nisi
was issued calling upon Respondent
to show cause on 13 February 2017 why the order should not be made
final.
[26]
On 13 February
2017 the application came before Dlodlo J, who
extended the Rule
nisi
and granted further orders enabling
Applicants to obtain access to Respondent’s computers and other
communication devices
in order to confirm that Respondent was the
author of posts and mails referred to in the founding papers as it
was disputed by
Respondent that he was the creator of the mails and
Facebook pages as set out above.
[27]
Mr Stander,
Applicants’ appointed expert, compiled a forensic
report and filed an affidavit wherein he concluded that Respondent
was
involved in the creation of the messages with reference to those
created on his Vodafone mobile device which forms the bulk of the
defamatory material which the interim order was aimed at preventing.
[28]
After the
aforesaid report was filed, Respondent filed his answering
affidavit on 28 May 2017. He admitted that he had created the
Facebook
pages / profiles and that he had been the author or had sent
the emails referred to in the founding and supplementary affidavits,
but denied posting the racist comments on the Facebook page depicted
in “LB17” as stated above.
[29]
Respondent,
whilst making the aforesaid admissions, denied that the
statements contained in the aforesaid material were defamatory. He
stated
that his comments were either meaningless abuse or were
provoked and further stated that the more serious publications were
justified
as it amounted to fair or protected comment and/or truth
and in the public interest.
Request
for a final interdict:
[30]
The law in
regard to the grant of a final interdict is settled. The requirements
for a final interdict have been stated as (a) a
clear right; (b) an
injury actually committed or reasonably apprehended; and (c) the lack
of an adequate alternative remedy. Applicants
therefore have to show
that: (a) the material created and distributed/published by
Respondent was defamatory; (b) that Respondent
had unlawfully
infringed or threatened to infringe Applicants’ right not to be
defamed; and (c) that there was no adequate
alternative remedy.
[1]
[31]
In the
matter of
Hotz
v UCT
[2]
,
Wallis JA held that: “
Once
the Applicant has established the three requisite elements for the
grant of an interdict, the scope, if any, for refusing relief
is
limited. There is no general discretion to refuse relief. That is a
logical corollary of the court holding that the applicant
has
suffered an injury or has a reasonable apprehension of injury and
that there is no similar protection against that injury by
way of
another ordinary remedy. In those circumstances, were the court to
withhold an interdict, that would deny the injured party
a remedy for
their injury, a result inconsistent with the constitutionally
protected right of access to courts for the resolution
of disputes,
and potentially infringe the rights of security of the person enjoyed
by students, staff and other persons on campus”
.
[32]
As aforesaid,
Respondent has admitted to being the author and having
published most of the material in question and I reject his denial
regarding
the contents of annexure “LB17”, which leaves
only the question whether such material is defamatory.
[33]
In determining
whether the material before Court is defamatory the
Court simply has to give the words or phrases used by Respondent in
the posts
and mails their ordinary meaning to come to the conclusion
that the material is reasonably capable of conveying to the
reasonable
reader a meaning which defames Applicants.
[34]
Once the
publication of defamatory statements is admitted, two presumptions
arise, namely that the publication was wrongful and
that Respondent
acted
animo
iniuriandi
.
Respondent bears the onus to establish either some lawful
justification or excuse or the absence of
animus
iniuriandi
.
[3]
[35]
It is trite
that in the absence of justification the unlawful and intentional
publication of defamatory material infringes a person’s
right
to reputation or differently said, a person’s constitutional
right to dignity and that freedom of expression prevails
only if
defamatory allegations are a true reflection of someone’s
character and were made in the public interest.
[4]
[36]
I am
satisfied that on the material placed before me it has been
established by Applicants that a factual disturbance of their
respective rights to dignity and privacy had occurred and Respondent
therefore has to rebut the presumptions that (a) the disturbance
was
wrongful and (b) intentional.
[5]
[37]
Respondent
has set out no basis nor placed any evidence before the Court in his
opposing papers to support his defences of fair
comment and/or truth
and public interest and/or to justify his defences being referred to
trial.
[6]
Respondent’s
attack on Applicants results from the termination of his employment
at Third Applicant and evidences a personal
vendetta.
[38]
In the
matter of
H
v W
[7]
the Court stated that it would not condone the abuse of social media
platforms in the pursuit of personal agendas and revenge for
what is
perceived to have been personal slights in the past. I am, given the
content of the publications, unable to find that the
statements were
published for the public benefit or in the public interest and/or
amounted to fair comment. That Respondent mostly
distributed the
offensive material under a pseudonym or in disguise is, in my view,
irreconcilable with innocent intent. The material
obviously does not
constitute fair comment and cannot be said to have been published in
the public interest.
[39]
I find that
the material posted and published by Respondent is
defamatory; that an injury had been committed and can reasonably
still be apprehended
to occur in future and that there is no other
satisfactory remedy. A damages award would not deter Respondent from
publishing such
material in future, particularly given Respondent’s
belief that he was justified in posting his opinions regarding
Applicants.
[40]
I do not
accept that a disgruntled previous employee and shareholder
under a pseudonym is at liberty to publish inappropriate
correspondence
dating back to 2010 and 2013 or to use foul and
inappropriate language as contained in various posts and emails on
the basis that
the publication of such material is fair comment
and/or in the public interest.
The
damages claim:
[41]
It trite
that it is not usually permissible to claim damages by way of motion
proceedings.
[8]
[42]
In the
matter of
Levenson
v Fluxmans Inc,
[9]
the aforesaid principle was
restated by Windell J, and he confirmed that motion proceedings are
primarily intended for the resolution
of legal issues whilst factual
disputes should be addressed in action proceedings.
[43]
In the
matter of
Cadac
v Weber-Stephen Products
[10]
it was however held that once a determination on the merits had been
made, the issue of quantum could be determined by way of a
referral
to trial. The Court at paragraphs 13 and 14 held that: “
I
cannot see any objection why, as a matter of principle and in a
particular case, a plaintiff who wishes to have the issue of
liability decided before embarking on quantification, may not claim a
declaratory order to the effect that the defendant is liable,
and
pray for an order that the quantification stand over for later
adjudication. It works in intellectual property cases, albeit
because
of specific legislation, but in the light of a court’s inherent
jurisdiction to regulate its own process in the interests
of justice
– a power derived from common law and now entrenched in the
Constitution (s173) – I can see no justification
for refusing
to extend the practice to other cases. The plaintiff may run a risk
if it decides to follow this route because of
the court’s
discretion in relation to interest orders. It might find that
interest is only to run from the date when the
debtor was able to
assess the quantum of the claim. Another risk is that a court may
conclude that the issues of liability and
quantum are so interlinked
that it is unable to decide the one without the other.
Once
the principle is accepted for trial actions there is no reason why it
cannot apply to application proceeding(s) …”
[44]
Whilst
Applicants did not claim any declaratory relief pertaining to damages
and in my view should not have claimed damages b
y
way of motion proceedings, the decision whether to dismiss the relief
in respect of damages or send the remaining dispute(s) to
trial is to
be determined in the exercise of the Court’s discretion.
[11]
In these proceedings, where I have found that the interim interdict
should be made final, which amounts to a finding that Respondent
has
defamed Applicants, the only issues still to be determined are (a)
whether Applicants have suffered any damages and if so,
(b) the
quantum thereof. It would, in my opinion, be more convenient and cost
effective (most of the costs have already been incurred
and expert
reports filed) to refer the damages as claimed for in terms of
paragraph 2.5 of the Notice of Motion read with the Amended
Notice 28
August 2017, to trial.
Contempt
application:
[45]
Applicants
filed an application on 28 August 2017 requesting that the
Court holds Respondent in contempt of the interim order dated 10
January
2017, and extended on 13 February 2017, based on an email
dated 23 August 2017, which was sent by Respondent to Mrs Kolby
wherein
he had referred to First Applicant as “
Hey T BONE
(VERY BIG CHOP) BALDING this is a legit request from a client, best
you let it through.”
contrary to paragraph 2.1 (more
particularly paragraph 2.1.1.7) of the orders in terms whereof
Respondent was interdicted from
referring to First Applicant as a
“tjop”. A chop is the English translation of the
Afrikaans word “tjop”.
[46]
Respondent’s
representative indicated at the hearing of the
matter that Respondent wished to deal with the contempt application
and was present
at Court to testify.
[47]
During his
evidence in chief, Respondent,
inter alia,
admitted
that he was aware of the order made by this Court, that he was the
author of the email in question and that he had sent
the email from
his email address.
[48]
According
to Respondent he sent the email to Ms Kolby in order to get
First Applicant’s attention as he was aware of the fact that
all his mails to Applicants were diverted to First Applicant. It
appears to be common cause that all mails were blocked and diverted
until a certain point in time. Respondent further stated that it was
a “play on words” and that he saw it as adding
a bit of
humour to an already tense situation.
[49]
Respondent
apologised to First Applicant in Court and stated that he
did not intend for the word “chop” to have the same
meaning
as the word “tjop” and that he saw the words”
chop” and “tjop” as being very different. He also
stated that he did not intend anyone other than First Applicant to
read the mail and that he therefore did not breach paragraph
2.1 of
the interim order as he did not think it was defamatory and he did
not intend to publish the statement in breach of the
order.
[50]
On 24 August
2017 Respondent’s attorney of record sent a letter
apologising for the email.
[51]
During cross-examination
Respondent was correctly referred to
paragraphs 2.2.2 and 2.2.4 of the interim orders wherein he was
prohibited from making and
sending out any “defamatory”
remarks similar to those listed in paragraphs 2.1 of the interim
order about First Applicant.
The dispute as to whether First
Applicant’s nickname was allegedly “porkchop” or
“chunky”, takes
the matter no further.
[52]
The
principles as to what constitutes civil contempt were summarised by
Cameron JA in the matter of
Fakie
NO v CC IT Systems (Pty) Ltd
[12]
as follows:
“
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders,
and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
the respondent in such proceedings is not an “accused person”,
but is entitled to analogous
protections as are appropriate to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice, non-compliance
and wilfulness and mala
fides) beyond reasonable doubt.
(d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent
bears an evidential burden in relation
to wilfulness and mala fides: Should the respondent fail to advance
evidence that establishes
a reasonable doubt as to whether the
non-compliance was wilful and mala fide, contempt will have been
established beyond a reasonable
doubt.
(e)
A declaratory and other appropriate remedies remain available to a
civil applicant on proof on a balance
of probabilities.”
[53]
In the
matter of
Laubscher
v Laubscher
[13]
the importance of
contempt proceedings to ensure the proper functioning of our Courts
was emphasised as follows:
“
[25] It
is also said that, where the Judiciary cannot function properly, the
rule of law must die. To protect this, special
safeguards have been
in existence for many centuries, one of these being civil contempt of
Court. As I have already stated, one
of the purposes of civil
contempt of Court is not only to protect the function of the Court
but also to assist applicants who are
trying to enforce a Court
order.”
[54]
The undisputed
evidence is that Respondent was interdicted from
making comments or statements similar to those contained in the
interim orders
to Applicants and/or anyone else, he was aware of the
orders and he had breached the orders. Given his stated opinions
regarding
Applicants, I find that Respondent has not established a
reasonable doubt that non-compliance of the order was not wilful and
mala fide
.
[55]
Respondent
is accordingly found to be in contempt of the order
granted on 10 January 2017 and extended on 13 February 2017.
[56]
Whilst the
Court takes disobedience of its orders very seriously as
it impinges on the proper functioning of our judicial system and
shows
disrespect, the specific circumstances of this matter, in my
view, do not warrant a suspended sentence but that a stern warning
would suffice.
[57]
Respondent
is warned that, should he breach any Court orders in
future, and more particularly, the terms of the final interdict set
out below,
a future Court would probably take this finding of
contempt into consideration and not hesitate to impose a harsher
sanction given
the lenience shown to Respondent herein.
Costs:
[58]
Applicants
requested that a special cost order be granted against
Respondent. Respondent did not oppose the initial granting of the
order
on 10 January 2017 and again did not oppose the extension of
the order on 13 February 2017. Respondent also did not oppose the
relief claimed on 15 March 2017 before Saldanha J and further
admitted in the opposing papers to being the author of and having
published most of the material before Court. Respondent in the papers
further agreed to the extension of the interim order pending
the
determination of the defences raised by him and Applicants’
claim for damages at a trial.
[59]
Save in
respect of the contempt proceedings, I am not convinced in
the circumstances that a special order is warranted.
[60]
I therefore
make the following Order:
1.
A final interdict is granted in the terms of paragraphs 2.1
to.2.3(inclusive)
and paragraphs 2.6 to 2.8 (inclusive) (excluding
paragraphs 2.4 and 2.5 thereof) of the Rule
nisi
granted on 10
January 2017;
2.
Respondent is found to have defamed Applicants;
3.
Applicants’ amended claim for damages arising out of the
defamation is
referred to trial and it is directed that:
3.1
Paragraph 2.5 of the Notice of Motion read with paragraph D of
Applicants’ Amended Notice
shall stand as the simple summons
and Respondent’s Notice of Opposition shall stand as
Respondent’s Notice of Intention
to Defend;
3.2
Applicants shall, as Plaintiffs in the action, within 30 days of the
date of this order deliver
a Declaration setting out the grounds for
the damages claim;
3.3
Respondent shall as Defendant in the damages claim file a plea and
any counter claim he may have
within 20 days of receipt of the
Declaration;
3.4
All affidavits and reports filed by experts shall be deemed to have
been filed in terms of Rule
36 of the Uniform Rules of Court;
3.5
The further exchange of pleadings and pre-hearing procedures
including discovery and the request
for and provision of trial
particulars, shall be regulated by the Uniform Rules of Court in
respect of action proceedings and the
judicial case management
practice of this Court;
3.6
In the event of Applicants failing to deliver a Declaration as
directed in terms of paragraph
3.2 above within the period
stipulated, the application shall thereupon be deemed to have been
dismissed with costs in respect
of the damages claim only.
4.
Respondent is ordered to pay the costs of the application, including
the costs
which stood over for later determination, the qualifying
and other costs of Adrie Stander, on the scale as between party and
party,
excluding any costs pertaining to Applicants’ original
and amended damages claim.
5.
Respondent is found to be in contempt of the order of this Court
dated 10 January
2017, cautioned to not disregard the orders of this
Court again and ordered to pay Applicants’ costs on the scale
as between
attorney and client in regard to the contempt application.
A
DE WET
Acting
Judge of the High Court
On
behalf of Applicants:
Advocate
R G L Stelzner (SC) instructed by
Abrahams
& Gross Inc
Per:
B R De Sousa
On
behalf of Respondent:
T
M Ferguson
[1]
Setlogelo
v Setlogelo
1914 AD 221
at 227. These requisites have been restated countless
times by Courts, see for example in
Van
Deventer v Ivory Sun Trading 77 (Pty) Ltd
2015
(3) SA 532
(SCA) ([2014] ZASCA 169) para 26, and
Red
Dunes of Africa v Masingita Property Investment Holdings
[2015] ZASCA 99
para 19 and
Pilane
and Another v Pilane and Another
2013 (4) BCLR 431
(CC) ([2013] ZACC 3) (Pilane) para 39.
[2]
2017
(2) SA 485
(SCA) at 496H – 497B
[3]
Khumalo
v Holomisa
2002
(5) SA 40
(CC) at 421
[4]
Council
for Medical Schemes v Selfmed
2011 ZASCA 207
(52)
[5]
SA
Uitsaaikorporasie v O’Malley
1977
(3) SA 394
(A) 401 – 403;
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd
[2000] ZASCA 77
;
2001 (2) SA 242
SCA and
Khumalo
v Holomisa
(supra)
[6]
Fikre
v Minister of Home Affairs
2012 (4) SA 345
(GSJ) at paras 21 to 25
and Ripoll-Dause v Middleton NO and Others 2005(3) SA 141 (C) at 151
to 153. Also see
Buthelezi
v Poorter & Others
1974 (4) SA 831
[7]
(2013)
2 All SA 218
(GSJ) at para 27
[8]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions Ltd
1949
(3) SA 1155
(T) at page 1161, Murray AJP stated: “…
There are certain types of proceedings (e.g., in connection with
insolvency)
in which by Statute motion proceedings are specially
authorised or directed … There are on the other hand certain
classes
of case (the instances given … are matrimonial causes
and illiquid claims for damages) in which motion proceedings are not
permissible at all. But between these two extremes there is an area
in which … according to recognised practice a choice
between
motion proceedings and trial action is given according to whether
there is or is not an absence of a real dispute between
the parties
on any material question of fact.”
[9]
2015 (3) SA 361 (GJ) 364 E
[10]
2011
(3) SA 570 (SCA)
[11]
Standard
Bank of SA Ltd v Neugardten and Others
1987
(3) SA (W) at 699 A -B and
Brodie
NO v Maposa and Others
(1990/2017)
[2018] ZAWCHC 18
(19 February 2018)
[12]
[2006] ZASCA 52
;
2006 (4) SA 326
at 344 H – 345 B (SCA)
[13]
2004
(4) SA 350
(T)