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[2014] ZAGPJHC 308
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Zululand Anthracite Colliery (Pty) Limited v Arendse (2014/10182) [2014] ZAGPJHC 308 (31 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO. 2014/10182
DATE:
31 OCTOBER 2014
In the matter
between:
ZULULAND
ANTHRACITE COLLIERY (PTY) LIMITED
.................
Applicant
And
ARENDSE
FREDERICK
SAM
....................................................
Respondent
JUDGMENT
NOCHUMSOHN AJ
1.
This matter has its inception in the urgent
court, where an Order was handed down before Acting Judge Hellens on
1 April 2014. In
terms thereof, the court granted an Order in the
following terms:
1.1.
Interdicting and restraining the
Respondent from unlawfully interfering in the Applicant's business
and its right to carry on lawful
business without interference from
others.
1.2.
Interdicting and restraining the
Respondent from interfering with, hindering or obstructing the terms
of the written agreement concluded
between RIVERSDALE MINING LIMITED,
the Applicant, the National Union of Mineworkers and the Association
of Mineworkers and Construction
Union on 18th January 2013 relating
to the payment of a special bonus to eligible employees of the
Applicant.
1.3.
Interdicting and restraining the
Respondent from trespassing upon the Applicant's premises in the
MAHLABATINI DISTRICT and from
holding or attempting to hold any mass
meetings with employees of the Applicant on the Applicant's premises.
1.4.
Interdicting and restraining the
Respondent from making any false statements or representations
defamatory of or injurious to the
Applicant, which relief shall
include, without derogating from the generality thereof, interdicting
and restraining the Respondent
from: -
1.4.1.
making any statements to the effect that
Applicant does not regard Black Empowerment to be an important
imperative;
1.4.2.
making any statements to the effect that
the Applicant is liable in respect of a so-called "restitution
claim" (as more
fully addressed in the founding affidavit);
1.4.3.
making any statements to the effect that
the Applicant misappropriated and/or misallocated funds (as more
fully addressed in the
founding affidavit);
1.4.4.
making any statements to the effect that
the Applicant improperly withheld dividends due to MMC.
1.5.
The interim interdict referred to herein
shall lapse at the opposed of the hearing of this application and the
Applicant will be
required to contend for a new interim order should
it so require.
1.6.
Directing the Respondent to file his
answering affidavit, if any, by close of business on 30th April 2014.
1.7.
Directing the Applicant to file its
replying affidavit, if any, within 15 days from date of delivery of
the Respondent's answering
affidavit.
1.8.
Directing that the costs of the
application be reserved.
2.
At paragraph 11 of the respondent's
Answering Affidavit to be found at page 540 of the papers, the
respondent avers that the urgent
part of the application was settled
after he gave a without prejudice undertaking to the applicant,
pending the final hearing of
the application. He alleges
to have given such undertaking with great reluctance and did not
believe that there was
a basis for the relief sought. He states that
he had been given insufficient time to prepare his opposition to the
urgent application
and was compelled by circumstance to give the
without prejudice undertaking in answer to the urgent relief sought.
3.
The founding papers comprise some 535
pages. The events described therein are detailed and date back some
three to four years.
One can well understand the respondent
having being taken somewhat off guard at having been bombarded with
an Application of this
nature in the urgent court, which application
would have taken the applicant some considerably well thought out
time to prepare.
4.
In these circumstances, one can clearly
accept the aforesaid circumstances under which the respondent elected
to deal with the matter,
by way of his aforesaid without prejudice
undertakings.
5.
It seems clear that arising out of such
without prejudice undertakings, and, without the benefit of the
respondent's opposing papers
before the court, the aforesaid order
was granted on 1 April 2014, albeit strictly upon an interim basis,
with the correct proviso
to the effect that such order would lapse at
the opposed hearing of this matter, where the applicant would be
required to contend
for a new interim order, should it so require.
6.
Whilst both the applicant's and the
respondent's papers have been elegantly drafted, the two versions, to
a large extent, conflict
with one another, and leave the type of
dispute of fact which calls for the hearing of
viva
voce
evidence.
7.
Without wanting to adumbrate too
extensively in relation to such conflicting versions I set out
hereunder, just a few of the more
important examples where the
respondent places the averments of the applicant in issue,
viz:
7.1.
By way of a broad brush statement, the
respondent says at paragraph 8.2 of the Answering Affidavit (page
539), that the deponent
to the Founding Affidavit had been employed
by the applicant for little more than a month and that for the most
part the averments
in the Founding Affidavit constitute inadmissible
hearsay evidence for that reason, given that the events set out
therein, date
back to 2011;
7.2.
At paragraph 6.7 of the Founding Affidavit,
applicant avers that the respondent was the adviser to the National
Union of Mineworkers
("NUM")
and the Association of Mineworkers and Construction Union ("
AMCU").
At paragraph 10 of the Answering Affidavit (page 540), the respondent
says he was not an advisor to such entities.
He says "
I
should state at this early juncture that the applicant consistently
and throughout its Founding Affidavit wrongly attempts to
make me the
face and spokesman for various entities and bodies."
7.3.
In response to the detailing of the relief
sought at paragraph 7.1 of the Founding Affidavit, the respondent's
retort at 11.2 of
the Answering Affidavit (page 541) is that there is
no basis for any of such relief, as the respondent denies having
committed
any act for which an interdict on those terms (or any
terms) can be justified. The respondent denies having incited
the applicant's
employees to revolt or to breach the special bonus
agreement referred to in the papers. He denies having made the
alleged false
statement and representations to any of the entities
referred to in paragraph 7.4 of the founding papers. He avers
that the
applicant confuses his commitment to economic empowerment
with some kind of uprising, which it seeks to suppress by the
generous
exercise of its corporate muscle in the application;
7.4.
At paragraph 11.5 of the Answering
Affidavit (page 541), the respondent refers to the voluminous
application as but one example
of the applicant's intolerance for
free political and socio-economic speech and freedom of association;
7.5.
The respondent goes on at paragraph 12.1 of
the Answering Affidavit (page 542) to dispute having committed any
injury towards the
applicant or that it could have any reasonable
apprehension of harm being committed against it, then or in the
future;
7.6.
The respondent accuses the applicant of
corporate neurosis and bullying tactics at paragraph 13.2 of the
Answering Affidavit (page
542);
7.7.
The events set out at paragraph 8.3 of the
Founding Affidavit, understandably triggered an enormous amount of
emotional content.
Such paragraph speaks to one Thomas, a
representative of Riversdale Holdings (Pty) Ltd (the 74% shareholder
of the applicant) as
having stated at a meeting on 17 March 2011 that
"
we as the 74% shareholder do not
get involved in this BEE crap";
7.8.
The applicant goes on to explain that the
statement was intended to convey that it was not the place of
Riversdale Holdings to interfere
in the internal affairs of Maweni
Mining Consortium (Pty) Ltd ("MMC"). MMC holds the
remaining 26% of the issued share
capital in the applicant;
7.9.
The respondent's response to such statement
is that same is indicative of the applicant's corporate sentiment and
serves to explain
the heavy-handed censorship that the applicant
seeks to impose upon him in respect of what he thinks and says.
He goes
on to explain at paragraph 15.2 of the Answering Affidavit
that the applicant's attempt to "
spin-doctor"
Thomas' statement by giving it context
is regrettable. He avers that the applicant cannot escape the
fact that Thomas used
the word "BEE" and "crap"
in the same sentence. He goes no to explain at paragraph
17 of the Answering
Affidavit (page 544) that Thomas' apology was
self-serving and did not serve to extinguish the corporate sentiment
of the applicant
in regard to BEE, that being that BEE is "crap";
7.10.
The applicant says at paragraph 8.2.1 of
the founding papers (page 20) that it has reason to believe that
annexure
"FA11",
being
a letter signed by representatives of AMCU and NUM, was in fact
written by the respondent, thereby inferring that the respondent
was
mustering up AMCU and NUM in a rise-up against the applicant. At
paragraph 19.4 of the Answering Affidavit (page 546), the
respondent
denies having authored "
FA11");
7.11.
Similarly, annexure
"FA15"
to the Founding Affidavit, contains
inflammatory material as against the applicant, but, the respondent
disputes at paragraph 19.5
of the Answering Affidavit (page 546) that
the statements referred to in annexure "
FA15"
emanate from him. On the contrary, he
says that such statements were made by various interest groups
arising from the need that
had occurred to rectify the
non-implementation of BEE structures.
8.
The above lists but a few of the examples,
where the court is faced with the type of dispute of fact which
disenables the granting
of a final interdict, without availing the
parties the opportunity of adducing oral evidence to support their
contentions.
9.
The only question which remains, is whether
the application falls to be dismissed, for such reasons.
10.
Clearly, the interim order handed down on 1
April 2014, has addressed all or any harm posed to the applicant,
which might otherwise
have presented itself, in the absence of such
relief. Conversely, the handing down of such interim order has not
posed any real
or significant harm to the respondent. The harm which
the applicant could have suffered, on its version, without the
protection
of such interim order, is immeasurable, against the
responsibility placed upon the respondent in having to uphold and
respect the
interim interdict. In real terms, there was no harm
caused to the respondent in being made to abide by the interim
interdict.
11.
As alternative relief to the handing down
of a final interdict, the applicant calls for the awarding of an
interim interdict, pending
the outcome of an action to be instituted
within thirty days. To deny the applicant such relief, could give
rise to a grave miscarriage
of justice, given the events and
circumstances described in the papers.
12.
To a large extent, the events set out in
the founding papers are historical. Whilst interdictory relief is not
competent for past
wrongs "
National
Council of Societies for the Prevention of Cruelty to Animals v Open
Shore 2008 (5) SCA 339 (SCA) at 353;
Smith & Nephew Ltd v
Mediplast Pharmaceuticals Sales CC
1999 (2) SA 646
(D) at 655
and, the respondent contends that in almost every instance the
historical wrongs have long since passed, nevertheless, the
chronological sequence of events slowly unfolds in the founding
papers and demonstrates a path of conduct the whole way through
to
the time of the launching of the application, which, if properly
proved after being tried and tested in trial proceedings, may
entitle
the applicant to the final relief that it seeks.
13.
As against the respondent's submissions,
the applicant submits that the unlawful conduct upon which the
application rests is ongoing
and extensive.
The
respondent has relentlessly interfered with the applicant's business
operations for a protracted period of time and continues
to do so,
being the basis of the interdict and restraining order called for, in
order to prevent significant harm to the applicant,
its employees and
stakeholders.
14.
The conduct complained of by the applicant,
embraces:
14.1.
the unlawful interfering by respondent in
the applicant's business affairs by inciting its employees to revolt
against the applicant's
management and making false representations
to them, relating to Rio Tinto's Riversdale Holdings and the
applicant's alleged views
and treatment of Black Economic
Empowerment;
14.2.
the respondent unlawfully incites the
applicant's employees to breach the terms of a special bonus
agreement entered into between
Riversdale Mining, the applicant, NUM
and AMCU on 18 January 2013, which agreement gave rise to payment of
a special bonus to eligible
employees of the applicant; and
14.3.
the respondent has allegedly made false
statements and representations to employees of the applicant, trade
unions representing
the applicant's employees and senior government
and regulatory officials.
15.
The issue to be determined is whether the
aforesaid conduct amounts to unlawful interference by the respondent
in the applicant's
rights to carry on its lawful commercial activity.
16.
Given the conflicting versions between the
parties, on paper, it would be a quantum leap to lock the respondent
into a final interdict
in perpetuity, without the applicant's case
having been carefully evaluated by way of
viva
voce
evidence.
17.
For a final interdict to be granted, there
are three essential requirements which must be established, namely :
17.1.
A clear right by the party asserting it;
17.2.
An injury actually committed or reasonably
apprehended; and
17.3.
the
absence of any other satisfactory remedy that may have been available
to the party seeking the interdict.
[1]
18.
The requirements for an interim interdict,
are somewhat less stringent and embrace the following:
18.1.
A
prima facie
right, although open to some doubt;
18.2.
An infringement of such right by the
respondent, or a well-grounded apprehension of an infringement of
such right;
18.3.
A well grounded apprehension of irreparable
harm to the applicant if the interim interdict should not be granted
and it should ultimately
succeed in establishing its right;
18.4.
The absence of any other satisfactory
remedy; and
18.5.
That
the balance of convenience favours the granting of an interim
interdict.
[2]
18.6.
In the exercise of its discretion, on the
consideration of the balance of convenience, the test applied by the
court in
Ramlagan, per Holmes J
as he then was, at 383 D - F,
was
It thus appears that where the
applicant's right is clear, and the other requisites are present, no
difficulty presents itself with
granting an interdict. At the other
end of the scale, where his prospects of ultimate success are nil,
obviously the court will
refuse an interdict . Between those two
extremes fall the intermediate cases in which, on the papers as a
whole, the applicant's
prospects of ultimate success may range all
the way from strong to weak. The expression "prima facie"
established though
open so some doubt seems to me a brilliantly apt
classification of these cases. In such cases, upon proof of a
well-grounded
apprehension of irreparable harm, there being no
adequate ordinary remedy, the court may grant an interdict, it has a
discretion,
to be exercised judicially upon a consideration of all
the facts. Usually this will resolve itself into a nice consideration
of
the prospects of success and the balance of convenience, the
stronger the prospects of success, the less need for such balance to
favour the applicant. The weaker the prospects of success, the
greater the need for the balance of convenience to favour him. I
need
hardly add that by balance of convenience is meant the prejudice to
the applicant if the interdict be refused, weighed against
the
prejudice to the respondent if it be granted".
19.
The
onus of proving a
prima
facie
case rests upon the applicant
[3]
.
20.
If
the applicant cannot establish a
prima
facie
right,
it cannot succeed in obtaining an interim interdict.
[4]
21.
The manner in which a court is to evaluate
whether the applicant has established a
prima
facie
right, though open to some doubt,
was crisply set out by the Supreme Court of Appeal in
Simon
N.O. v Air Operations of Europe AB & others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA)
at 228 F - I,
as follows:
"
Insofar as
the appellant also sought an interim interdict pendent lite, it was
incumbent upon him to establish, as one of the requirements
for the
relief sought, a prima facie right, even though open to some doubt
...... The accepted test for a prima facie right in
the context of an
interim interdict is to take the facts averred by the applicant
together with such facts set out by the respondent
that are not or
cannot be disputed and to consider whether, having regard to the
inherent probabilities, the applicant should on
those facts obtain
final relief at the trial. The facts set up in contradiction by the
respondent should then be considered and,
if serious doubt is thrown
upon the case of the applicant, he cannot succeed."
22.
In assessing whether a
prima
facie
case was established, in
Fey
N.O. v van der Westhuizen & others (2003) 2 all SA 279 (C) at
page 688 to 691
,
the
court examined the evidence against the first respondent's response
to the applicant's case, and concluded the following:
"
On an
assessment of all the facts set out by the applicant in her Founding
Affidavit, and those contained in first respondent's
Answering
Affidavit, I find there to be no facts set out by the respondent,
which the applicant cannot dispute. I find moreover
that the facts
set out in contradiction by the respondent do not throw serious doubt
upon the applicant's case. The applicant has
accordingly established
a prima facie case."
23.
On the papers before me, I am of the view
that the plaintiff's version, were it to withstand the burden of
proof, on trial, has
prospects of success, upon trial. Whilst the
respondent denies much of what the applicant alleges, and pours a lot
of cold water
over its alleged relevance, such steps on the part of
the respondent do not throw sufficient doubt upon the applicant's
case so
as to extinguish a
prima facie
right.
24.
Applying the above tests, the applicant has
clearly discharged its onus in proving a
prima
facie
right to an interim interdict. In
the light of the continual progressive slow path of conduct,
chronologically set out in the founding
papers, there is certainly a
case made out for a well-grounded apprehension of an infringement of
such
prima facie
right.
25.
Likewise, there is a well-grounded
apprehension of irreparable harm to the applicant, if an interim
interdict should not be granted
and should it ultimately succeed in
establishing its right finally. Much damage could be done pending a
trial, in the absence of
any interim relief.
26.
There is an absence of any other
satisfactory remedy, and, the balance of convenience, in all of the
circumstances favours the granting
of an interim interdict, if one
weighs up the harm that the applicant would suffer, without such
interim relief versus the harm
posed to the respondent by the
granting thereof. In short, the applicant's harm would be
immeasurable, if it be so that the on-going
conduct of the respondent
would serve to cause the damage complained of in the founding papers,
whereas the harm suffered by the
respondent in having to abide by the
constraints of an interdict pales into insignificance by comparison.
In
the circumstances, I make the following Order:
1.
Interdicting and restraining the respondent
from unlawfully interfering in the applicant's business and its right
to carry on lawful
business without interference from others.
2.
Interdicting and restraining the respondent
from interfering with, hindering or obstructing the terms of the
written agreement concluded
between Riversdale Mining Limited, the
applicant, the National Union of Mineworkers and the Association of
Mineworkers and Construction
Union on 18 January 2013, relating to
the payment of a special bonus to eligible employees of the
applicant.
3.
Interdicting and restraining the respondent
from making any false statements or representations defamatory of or
injurious to the
applicant, which relief shall include, without
derogating from the generality thereof, interdicting and restraining
the respondent
from:
3.1.
making any statements to the effect that
applicant does not regard Black Economic Empowerment to be an
important imperative;
3.2.
making any statements to the effect that
the applicant is liable in respect of a so-called ”restitution
claim" (as more
fully addressed in the Founding Affidavit);
3.3.
making any statements to the effect that
the applicant misappropriated or misallocated funds (as more fully
addressed in the Founding
Affidavit);
3.4.
making any statements to the effect that
the applicant improperly withheld dividends due to MMC.
4.
The motion is to be referred to a trial
court, upon the following basis:
4.1.
The Notice of Motion and Founding Affidavit
filed of record shall stand as a simple summons;
4.2.
The respondent's Answering Affidavit shall
stand as a Notice of Intention to Oppose;
4.3.
The applicant shall file a Declaration
within a period of thirty days from the date of the handing down of
this Order, to which
the respondent shall file a plea within the time
periods provided for in the Uniform Rules of Court.
5.
All of the interdicts granted above, are so
granted on an interim basis, and shall operate as interim interdicts,
pending the outcome
of the trial, upon the express condition that in
the event of a Declaration not being filed by the applicant within
thirty days
from the date of the handing down of this Order, then
such interim interdicts shall all lapse and be of no further force or
effect.
6.
The costs of this application are reserved
for determination by the trial court.
NOCHUMSOHN,
G
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the Applicant: Advocate AO Cook SC
Advocate
PMP Ngcongo
Instructed
by: Norton Rose Fullbright
On
behalf of the Respondent: Advocate WB Pye
Instructed
by: Roy Suttner Attorneys
Date
of Hearing: 28 and 29 October 2014
Date
of Judgment: 31 October 2014
[1]
Setlogelo
v Setlogelo
1914 AD 221
;
Plascon
Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A);
Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1956 (4) SA 837
(C)
Minister
of Health v Drums & Pails Reconditioning CC trading as Village
Drums & Pails
1997 (3) SA 867
(N) at
872
(C)
[2]
Olympic
Passenger Service Ltd v Ramlagan
1957 (2) SA 382
(N) at 383 A - G;
Knox
D'Arcy Ltd & others
1995 (2) SA 579
(W);
Ericsson
Motors Welkom Ltd v Protea Motors Warrenton
1973 (3) SA 685
;
Webster
v Mitchell 1948 (1) SA 1186 (W)
[3]
Godbold
v Thomson
1970 (1) SA 61
(D) at 63 D;
Molteno
Bros & others v SA Railways & others
1936 AD 321
at 333;
Johannesburg
Municipality v African Realty Trust Ltd
1927 AD 163
at 177
[4]
Hydro
Holdings (Pty) Ltd v Minister of Public Works & another
1977 (2)
SA 778
(T);
Meyer
v SA Medical & Dental Council
1982 (4) SA 450
(T) at 458 A - B