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[2021] ZAGPJHC 731
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Jugwanth v Varoy (A3098/19) [2021] ZAGPJHC 731 (25 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A3098/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
In
the matter between:
YASHKAR
HARRICHAND JUGWANTH
Appellant
and
VINCENT
LEENDERT VAROY
Respondent
JUDGMENT
DE
VILLIERS, AJ:
[1]
The appellant sought condonation for any failure to comply with a
rule
of court in prosecuting the appeal. The appeal is before us, the
record is complete, there has been no culpable remissness, any
condonation would not prejudice the respondent, and the prospects of
success are good. It would serve no purpose to list the instances
of
non-compliance by the appellant. In so far as condonation and/or
reinstatement may be required, it is granted.
[2]
This is an appeal against a final Protection Order in terms of the
provisions
of the
Domestic Violence Act
116 of 1998 (“
the
Act
”) by the Magistrate for the district of
Johannesburg North on 3 April 2019. The learned magistrate issued an
order that the
appellant was interdicted from committing acts of
domestic violence by physically abusing the respondent. The interdict
was issued
consequent to an incident that occurred during the night
of 23 September 2018 at a property jointly owned by the parties, but
where
neither resided.
[3]
In order for the Act to apply, the learned magistrate had to find
that
the parties were in a “
domestic relationship
”
as defined in the Act. The appellant denies both that the incident
and that the Act applies to the relationship between
the parties.
[4]
The background to the incident and the
proceedings in terms of the Act, is that the parties were in a
relationship from about August
2009, and shared a home from about
September 2011. It is in dispute when the relationship ended. On the
appellant’s version
it ended in about June 2014. On the
respondent’s version it ended in about July 2014, but resumed
for August 2016. On the
respondent’s version the parties lived
in the same home from August 2016 to August 2017. The factual
disputes and exact nature
of the relationship between the parties
from time-to-time cannot be determined without oral evidence. On both
versions the parties
were no longer in a romantic relationship and
lived apart for more than a year before the date of the incident. It
seems that their
only contact was through electronic means.
[5]
The papers do not reflect the full facts
as to when, why, and how many immovable properties were acquired, but
it is common cause
that the parties still owned certain immovable
properties jointly at the time of the incident. One of those
properties was the
one where the incident occurred.
[6]
On the respondent’s version, his
friend “Mayoor” lived with his consent at the property
owned by the respondent
and the appellant. There is no suggestion
that the appellant knew of the arrangement. On their way to a
nightclub, the respondent
and his friend stopped at the property to
collect clothes. They were packing belongings in the car when the
appellant approached
them at the vehicle. A scuffle commenced, the
appellant was aggressive and pushed Mayoor against the vehicle,
pulled him by his
hair towards the respondent whom he the
pepper-sprayed. Mayoor ran away. The appellant followed the
respondent, grabbed him by
the collar, kicked his legs out under him,
and pepper-sprayed him more, whilst kicking him all over his body.
[7]
On the appellant’s version he
noticed a vehicle in the property’s driveway when driving past
the property, with an open
boot. He approached the house and
suspected foul play when he saw bags in the car. He did not recognise
the person standing at
the car. The person was only clothed in shorts
or underwear and seemed to have been under the influence of drugs. He
was then attacked
by the respondent and Mayoor, defended himself and
escaped. According to the person who was with him, he asked the
appellant to
take the pepper spray with him, as he was scared when he
saw the man at the property. He confirms the attack on the appellant,
and stated that the appellant sprayed pepper spray in the air.
[8]
Faced with the conflicting versions, the
learned magistrate determined the matter on the probabilities and
rejected the appellant’s
version. Initially the presiding
magistrate on 3 April 2019 issued an order, after an opposed hearing
without giving reasons. The
fact that litigants are entitled to
reasons for decisions against them require no further attention in
this matter apart from pointing
out this fact.
[9]
Our practice has become more robust, but
the room for deciding factual disputes in motion matters for final
relief, remains constrained.
This matter was not an exceptional
matter where the appellant’s denial of the assault was
correctly rejected on paper a not
being a genuine dispute of fact,
and the factual disputes should have been referred to oral evidence.
The law is trite. See
Wightman t/a J
W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 12-13 that summarises the position having
regard to
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C and see too the caution expressed in
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 55-56. Long ago Colman J in
Metallurgical
and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd
1971
(2) SA 388
(W) at 390C-H gave expression to the cautious approach
even in those cases where a denial seems improbable on paper:
“
Senior
counsel for the applicant pressed upon me, as apposite to my duties
in the present case, the dictum of PRICE, J.P., in Soffiantini
v.
Mould,
1956 (4) SA 150
at p. 154 (E). The learned Judge-President is
there reported to have said:
"
It is
necessary to make a robust , common sense approach to a dispute on
motion, as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits."
It is my
view, on a consideration of the papers before me, that the
probabilities are against the respondent on the issue which
I am now
considering. I think it undesirable that I should mention the reasons
for my view in that regard because, despite the
urgings of senior
counsel for the applicant, and the admonition of PRICE, J.P. which I
have quoted, I do not think that it would
be safe or just to deny the
respondent the benefit of the oral hearing for which it has asked.
I do not
think that in forming that view I have been unduly fastidious or
lacking in robustness: and I can but express the hope
that I have not
shown myself to be deficient in common sense. My conclusion rests
upon my experience, and the experience of others
before me, which
shows that an assertion or a denial which seems very probable or
improbable on a reading of a set of affidavits
often takes on a
different colour when the veracity of the person which has made it is
tested by cross-examination. There is the
rare case, of course, in
which a disputed statement made on affidavit is so manifestly untrue,
or so grossly improbable and unconvincing
that the Court is justified
in disregarding it without recourse to oral evidence. But I cannot
say that Mr. Rowe's assertions on
the point in dispute fall into one
of those categories. They fall rather into the class of assertions
which, although apparently
improbable, might be accepted after an
oral hearing. It seems to me, therefore, that on the principles
recognised in Frank v. Ohlsson's
Cape Breweries, Ltd.,
1924 AD 289
at
p. 294, and in Peterson v. Cuthbert & Co. Ltd.,
1945 AD 10
at p.
428, the dispute under discussion is one which ought not to be
resolved without an oral hearing
.”
[10]
Accordingly, the order by the learned
magistrate should be set aside, an oral hearing should take place,
and the matter be decided
thereafter. The remining issue is costs of
the appeal. It seems that a just order in the circumstances is that
each party must
pay its own costs of the appeal, if any as the appeal
proceeded on an unopposed basis. The appeal record is of such poor
quality
that it is very difficult to read parts thereof. This court
would have been within normal practice had it removed the appeal from
the roll due to the illegible record. The costs order reflects this
court’s displeasure. In addition, the appellant had to
apply to
have the appeal reinstated and caused part of the costs of the
hearing.
Accordingly,
I propose that the following order be made:
1.
The appeal is upheld;
2.
Each party is to pay its own costs of the appeal;
3.
The order made by the magistrate is set aside and the following is
substituted
therefor:
“
(1) The matter is referred for
the hearing of oral evidence, before a different magistrate, at a
time to be arranged with the clerk
of the court, on the question if
the respondent has assaulted the applicant on 23 September 2018;
(2) The evidence shall be that of any
witnesses whom the parties or either of them may elect to call,
subject, however, to what
is provided in paragraph 3 hereof.
(3) Save in the case of applicant and
the respondent, neither party shall be entitled to call any witness
unless:
(a) it has served on the other party
at least 15 days before the date appointed for the hearing (in the
case of a witness to be
called by the respondent) and at least 10
days before such date (in the case of a witness to be called by the
applicant), a statement
wherein the evidence to be given in chief by
such person is set out; or
(b) the Court, at the hearing, permits
such person to be called despite the fact that no such statement has
been so served in respect
of his evidence.
(4) Either party may subpoena any
person to give evidence at the hearing, whether such person has
consented to furnish a statement
or not.
(5) The fact that a party has served a
statement in terms of paragraph 3 hereof, or has subpoenad a witness,
shall not oblige such
party to call the witness concerned.
(6) Upon the conclusion of the oral
evidence and such further evidence as the learned magistrate may
direct to be heard in terms
of
section 6(1)(2)(b)
of the
Domestic
Violence Act 116
of 1998, determine the matter in terms of
sections
6(4)
and
7
of that act.” ……………
DP
de Villiers
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH
COURT,
JOHANNESBURG
I
agree
CG
Lamont
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH
COURT,
JOHANNESBURG
Heard
on:
24 May 2021
Delivered
on:
25 May 202, by uploading on CaseLines
On
behalf of the Appellant
Mr R Krause
Instructed
by:
BDK ATTORNEYS
On
behalf of the Respondent:
No
appearance