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[2010] ZAGPPHC 172
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Kungwini Manor Home Owners Association (Pty) Ltd v Kungwini Estate (Pty) Ltd (24144/10) [2010] ZAGPPHC 172 (23 September 2010)
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH COURT
– PRETORIA)
Case no. 24144/10
DATE: 23/09/2010
In the matter between:
KUNGWINI MANOR HOME
OWNERS
ASSOCIATION (PTY)
LTD
....................................................................
Applicant
and
KUNGWINI
ESTATE (PTY)
LTD
..........................................................
Respondent
JUDGMENT
Judgment reserved on;
16/09/2010
LEGODI
J,
INTRODUCTION
[1] Before
me
, is an application for a striking out
launched by the respondent and a preliminary issue raised by the
applicant seeking to commit
the respondent to his earlier undertaking
not to cut the supply of water and electricity to the applicant and
its members.
[2] The
two issues above were raised in an application which was launched by
the applicant in terms of which the applicant seeks
an interdict to
restrain the respondent from disconnecting or disrupting in anyway,
the water and electricity supply to Kungwini
Manor Estate of the
applicant pending certain steps to be taken against the respondent.
Full extent of the relief sought by the
applicant is dealt with
hereunder.
BACKGROUND
[3] The applicant had
initially instituted more or less the same application seeking to
interdict the respondent from disconnecting
or disrupting in any way,
the water and electricity supply to Kungwini Manor Estate. The said
application which was launched on
an urgent basis, was set down for
hearing on 11 March 2010.
[4] On the 11 May 2010 an
order was made as follows:
“1. The
application is postponed sine die;
The respondent shall
file its Opposing Affidavit (with or
without a counter
application) on or before 1 June 2010;
3. The applicant shall
file its Replying Affidavit within the time period prescribed by Rule
6(5) of the Uniform Rules;
4. The cost
occasioned by the postponement is reserved”.
[5] The
application
that was set down on the urgent
motion roll for the 11 May 2010, was prompted by a threat to
terminate the supply of electricity
and water to the estate by 15 May
2010.
[6] According
to the applicant, it did not proceed to enrol the application in
terms of Rule 6(5)(b) when the respondent failed
to file an opposing
or answering affidavit in time after the order of the 11 May 2010.
The applicant is said to have had an undertaking
from the respondent
not to take any action pending the outcome of the application.
According to the applicant, there was no longer
a need to finalise
the application on an urgent basis.
[7] The relevant portion
of the undertaking contained in the letter of the 7 May 2010 from the
respondent’s attorneys reads
as follows:
“…Be
that as it may, my client, whether or not any termination would be
lawful or unlawful, has no intention of terminating
the water and
electricity supply to Kungwini Manor Estate,
and
without waiving any of its rights or making any admission of any
nature whatsoever, undertakes) not to do so pending the finalisation
of the pending
proceedings
”.
[8]
On
the 7 July 2010, the respondent without having delivered its
answering affidavit in accordance with the order of the 11 May 2010,
addressed a letter to the applicant, in which the applicant was
informed that the respondent’s obligation to supply water
has
ceased in terms of clause 9. In this letter, the applicant was given
90 days to make alternative arrangements as thereafter
water would be
terminated without further notice.
[9] When everything
failed to persuade the respondent to withdraw the threat made in the
letter of the 7 July 2010, on the 23 July
2010, the respondent served
the answering affidavit and had it filed on the 27 July 2010.
[10] On
the 28 July 2010, the applicant served its first notice of amendment
of the notice of motion, together with a supplementary
affidavit
deposed to on the 27 July 2010. A further amended notice of motion
dated the 2 September 2010 was delivered. On the
2 September 2010, a
replying affidavit was served on the respondent. The respondent then
delivered an application to strike out
some paragraphs in the
applicant’s replying affidavit. The striking out was sought on
the basis that, the averments therein
should have formed part of the
applicant’s founding affidavit and annextures. Alternatively,
that the averments constitute
inadmissible new matters to the
prejudice of the respondent.
[11] The applicant then
enrolled the matter on an urgent motion roll for the 14 September
2010.
[12] When
the matter was initially argued before me, I thought one could deal
with the preliminary issue raised on behalf of the
applicant
,
striking out application, together with the matter on merits during
the same urgent motion roll. However, during the course of
the
submissions on the 11 September 2010, counsel for the respondent made
it clear that in the event the respondent does not succeed
with the
striking out application, the respondent will not be ready to proceed
with the matter on merits. This was despite the
suggestion by the
court that a provisional fourth affidavit could be filed. Clear
from this, that the respondent would wish to
seek leave to file
further affidavit in the event of an unsuccessful striking out
application. It was at this stage that I told
the parties that the
matter would therefore, be argued on the striking out application
only. By this time, the applicant’s
counsel had already argued
his preliminary issue.
[13] The
matter then proceeded further on the striking out application on 15
September 2010. The submissions continued again on
the 16 September
2010. Just before the end of the submissions on the striking out, I
indicated that the court was inclined to
dismiss the preliminary
issue. Counsel for the respondent was encouraged not to waste any
more time on the preliminary issue.
[14] At
the end of the submission on the striking out, I dismissed the
application for striking out. I then indicated that reasons
would be
delivered on Monday the 20 September 2010. At the time I thought
that such reasons would be ready and could be read
into record.
[15] It
was further ordered that the costs of the striking out are reserved
until the 20 September 2010. The respondent was also
interdicted
from disconnecting or disrupting in any way, the water and
electricity supply to Kungwini Manor Estate pending the
finalisation
of the main action and or pending further order to be given by this
court on the 20 September 2010.
[16] I may mention that
immediately after the order was made, counsel for the respondent
stood up and indicated that there was no
“main application”
[17] I
now turn to deal with the reasons for the judgment and further order
which this court intends to make. I wish to start first
with the
issues raised and if need be, the applicable principles thereto.
ISSUES RAISED
[18] I find the following
to be two important issues in this matter:
Whether the respondent
had made a case for striking out some portions in the applicant’s
replying affidavit? And if so,
Whether the respondent
should be allowed to file a fourth affidavit?
[19] The
following two other issues are in my view, peripherals. Peripherals
in the sense that they are dependent on the two issues
raised in
paragraphs 18.1 and 18.2 above;
Whether
in the absence of an undertaking not to disconnect the supply of
water and electricity and the court refusing the striking
out, but
allowing the respondent to file further affidavit, the respondent
is at liberty to continue with its threat?
Who
must be ordered to pay the wasted costs occasioned by the striking
out application and the postponement of the main application?
APPLICABLE
PRINCIPLE
S AND CASE LAWS TO THE
ISSUES
[20] The
court may on application, order a matter which is objectionable to be
struck from affidavits, provided that the court is
satisfied that the
party seeking to have the matter struck out would be prejudiced if it
were not struck out. (
See National
Director of Public Prosecutions
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 208 B
)
[21] The
procedure of striking out is not intended to be utilised, to make
technical objections which are of no value to anyone
and merely
increase costs, and when so utilised, will be refused and costs will
be awarded against the applicant. (
See
Msunduzi Municipality v Natal Joint Municipality Pension/Provident
Fund
2007 (1) SA 142
(N) at 150A-C
).
[22] All
material points which an applicant wishes to allege, must be in the
founding affidavit filed in support of his application.
He cannot
supplement his case by adducing facts in his replying affidavit which
should have been in the original affidavit. If
he does so, such
facts will as a general rule struck out.
[23] However,
the applicant may bring in fresh matters in a replying affidavit, if
this is by way of replying to a defence raised
by the respondent, and
is not a matter which should have been in the original affidavit to
show the applicant’s cause of
action. (
See
Jones and Buckle, The Civil Practice of the Magistrate’s Courts
in South Africa 9
th
Edition, Volume II, Erasmus van Loggerenbert, at 55-11
).
[24] There
are normally three sets of affidavits in motion proceedings. (
See
Standard Bank of SA Ltd V Sewpersach
005 (4) SA 148
(C) at 153G-H
).
A fourth affidavit will be received only in exceptional cases. (
See Kasiyamburu v Minister of Home Affairs
1999 (1) SA 643
(W) at
649 H-650C
):
[25] The
following principles could serve as guidelines to the manner in which
the court should exercise its discretion on whether
or not to allow
a fourth affidavit.
The
court will exercise its discretion against the backdrop of the
fundamental consideration that a matter should be adjudicated
upon
all the facts relevant to the issues in dispute. (
See
Dickson v South African General Electric Co. (PTY) Ltd
1973 (2) SA
620
(A) at 365H, South Peninsula Municipality v Evans
2001 (1) SA
271
(C) at 283 A-H
).
While
the general rules regarding the number of self and proper sequence
of affidavits should ordinary be observed, some flexibility
must
necessarily also be permitted. (
See
James Brown and Harmer (PTY) Ltd V Simmons No
1963 (4) SA 656
at
283A-H
).
It
is essentially a question of fairness to both sides as to whether
or not further sets of affidavits should be allowed. There
should
in each case be
mala fides
or culpable remissness as to the cause of the facts of information
not having been put before the court at an earlier stage.
The
court must be satisfied that no prejudice is caused by filing of
the additional affidavits which cannot be remedied by
an
appropriate order as to costs. If the court is satisfied on these
points, it will generally incline towards allowing the
affidavits
to be filed. (
See Miline NO v Fabric
House (PTY) Ltd
1957 93) SA 63
(N) at 65A, Watloo Meat and Chickens
SA (PTY) Ltd (4) SA 461 at 472 H-J
).
In
case of a complex case, and if it could not have been expected of a
party to have had all of the facts at his disposal when
the
proceedings were launched, the objection to bar such a party from
bringing in a new cause of action could be dismissed.
For example,
in the matter of the
Registrar of
Insurance v Johannesburg Insurance Co. Ltd 1962 (4) 566 (WLD)
,
a point was raised that, the applicant must have made out a
complete case in its founding papers and not in his reply. In
that
case, counsel for the applicant wanted to refer to a report drawn
by a firm of accountants concerning the affairs of the
respondent
company. Counsel for the respondent objected thereto on the basis
of its inadmissibility, suggesting that it will
introduce a new
cause of action. That is, the original cause of action was for
judicial management, but as a result, the applicant
subsequently
altered its papers to an application for liquidation. This was
allowed.
In
the matter of
Chakot Investments V
Town Council, Borough of Stanger 1976 (2) SA d & CLD at 704
E-G
, a point having been made on
behalf of the respondent, that the applicant must stand or fall by
his application in the founding
affidavit, and the fact alleged
therein, the court eventually stated that, in proceedings by way of
application, the party
seeking relief ought in his founding
affidavit, should disclose such facts as would, if true, justify
the relief sought and
when would at the same time, sufficiently
inform the other party of the case he was required to meet. If the
founding affidavit
is allowed to be supplemented by adding further
facts in a replying affidavit, the consequence would often, but not
necessarily
always, be that a fourth and possibly also a fifth set
of affidavit would be required. A situation the development of
which
the court would not lightly be disposed to facilitate or
encourage.
It
is one thing to say that, an applicant might or ought, by careful
consideration of a piece of information conveyed by the
respondent
before commencement of proceedings, to have made certain deductions
there, from which would or might have led him
to investigate and
discover further facts relative to his claims. However, an
entirely different thing to say that the applicant
knew all the
relevant facts when he commenced the proceedings, but on some
unexplained reasons, omitted to state or rely upon
them in his
founding affidavit. It is when that may properly be said of an
affidavit, that the rule against the introduction
of the new facts
or grounds in replying affidavit will otherwise than in very
exceptional cases be stringently applied against
him. (
See
Shakot Investments supra at 706 to 707A
).
Since
rules of procedure are made to facilitate litigation, they are
always subject to the overriding discretion by the court,
it may in
an appropriate case allow an applicant to introduce a new matter in
his replying affidavit. (
See Shepherd
v Mitchell Lotts Seafreights (SA) PTY Ltd 1984 (3) 202 at 205G
)
Clause 7 of the
Electricity Notarial Servitude number K0606323 provides that all
accounts for the supply for services referred
to in 5 above, shall
be settled monthly by the Second Party in arrear and within seven
days of the statement being rendered.
All payments shall be made
to the address to be determined by the First Party from time to
time.
Clause 8 thereof,
provides that, in the event of the second party in breach of the
provisions of clause 7, the First Party shall
be entitled summarily
to discontinue all or any of the services referred to in 5 above,
until such time as the Second Party
has effected payment. The
First Party shall not be required to put the Second Party on terms
or to render or to deliver any
notice to the Second party.
Clause
9 thereof, provides that both parties shall be entitled to cancel
the rendering of services by the First Party as envisaged
in clause
5 by giving the other party six months written notice of its
intention to cancel the service of supplying electricity.
Clause 8
of the Water Notarial deed of Servitude number K0606322, contains
the same provision as in clause 9 under electricity
notarial
servitude, except that reference to clause 5 under clause 9 of
electricity notarial servitude, is reference to clause
2 under
water notarial servitude.
DISCUSSIONS,
SUBMISSION AND FINDINGS
[26] I find it necessary
to deal with the issues chronologically as
identified in paragraphs
18.1 to 18.2 and 19.1 to 19.2.
WHETHER THE RESPONDENT
HAD MADE OUT A CASE FOR STRIKING OUT?
[27] For
the sake of clarity and completeness,
it
necessary to set out or quote the paragraphs in the replying
affidavit which the respondent seeks to have them expunged from
the
replying affidavit.
“
4.2 The
respondent obtained the approval of the Kungwini Municipality (at
that stage known as the Bronkhosrpruit Transitional Council)
for the
development of the estates during July 1999. Until very recently the
Applicant has been unable to obtain a copy of the
Conditions of
Township Establishment imposed on the Respondent. This is one of the
documents that the Respondent has kept from
the Applicant. Searches
at the municipality showed that their file is completely empty.
Applicant has eventually, very recently,
found a copy of the
Conditions in the office of the Registrar of Deeds. A copy thereof
is annexed hereto as annexure
“D27”
4.3 The
relevance of the conditions imposed on the Respondent is that the
Respondent was not obliged to supply the Applicant with
water and
electricity for a limited period but it was in fact a condition of
the township establishment that the Respondent had
to supply the
essential services on a continued basis. Paragraph 2.4 of the
conditions expressly states as follows:
Die
dorpseiernaar moet alle interne dienste in die dorp installer en
voorsien, onderworpe aan die goedkeuring van die plaaslike
bestuur”
.
4.4 It
makes sense that Kungwini Municipality required the Respondent to
provide the essential service as the developments are situated
far
from any town and as explained in the Founding Affidavit, there is no
water reticulation and power supply, other than those
arranged by the
Respondent, available to any of the estates,
4.5 The
Respondent relies on the terms of the notarial servitudes as the
basis upon which it claims to be entitled to cancel the
services that
it renders to the Applicant. The Respondent also, with respect,
attempts to create the impression that the notarial
servitudes was
registered after the Applicant and the Respondent concluded arm’s
length agreements. This is not so. At
the stage when the Applicant
and the Respondent concluded the agreements for the registration of
the notarial servitudes, both
these parties were represented by Mr
Walters. The agreement was therefore nothing other than Mr Walters
contracting with Mr. Walters.
The notarial servitudes to the extend
that they create a right in favour of the Respondent to cancel the
supply of services, is
a one sided agreement concluded for the sole
benefit of the Respondent.
6.1 The
Applicant’s Notice of Motion, and the relief claimed therein,
was prepared at a stage when the Respondent failed to
disclose
certain very material documents and information to the Applicant. In
the interim, the Applicant has itself uncovered
some of these
documents (i.e. the Conditions of Township Establishments) and the
Respondent has discovered its alleged written
Management Agreement.
The respondent has however still failed to disclose the financial
records relevant to the Applicant. The
applicant still intends
proceeding with an application in terms of Act 2 of 2000 for the
discovery of these documents.
6.2 A
further important issue has however now come to the foreground. It
is clear that the notarial servitudes concluded between
the parties
(at a stage where Mr Walters represented both the Applicant and the
Respondent) were not bona fide and arm’s
length transaction and
that the notarial servitudes are in conflict with the Conditions of
Township Establishment imposed on the
Respondent. Applicant intends
applying to set aside certain of the terms contained in the
registered notarial servitudes to the
extent they are in conflict
with the Conditions of Township Establishment. More specifically
applicant intends applying to set
aside the part of the notarial
servitudes authorising the Respondent to discontinue the supply of
any essential services with 6
(six) months notice. Applicant has no
difficulty with the suspension of services if it fails to pay for the
services rendered
to it.
6.3
The clause permitting the Respondent to simply suspend the services
on 6(six) months notice without any reason is draconic
and has the
potential to cause immense harm to the Applicant. It is also in
conflict with the Conditions of Township Establishment.
7.2 Applicant’s
answer to the servitudes is simply to reiterate that they were not
concluded as arm’s length transactions
and that they are for
the sole benefit of the Respondent. The Respondent concluded these
agreements at a stage when its members,
Mr Walters, had a duty to
consider the best interest of the Applicant but failed to do so. The
notarial servitudes are also in
conflict with the Conditions of
Township Establishment imposed on the Respondent
8. I
take note of the fact that Eskom started to work on a main supply
line to the Applicant. It is important to mention that it
is, in
terms of the Conditions of Township Establishment, the duty of the
Respondent to supply these essential services to the
Applicant. The
wording of the notarial servitudes (as prepared for the sole benefit
of the Respondent) attempts to shift this
responsibility to the
Applicant,
12.2 The
fact of the matter is that the Respondent has clearly concluded an
agreement for its sole benefit and is now attempting
to rely on that
benefit to the detriment of the Applicant. It is the Respondent who
is misguided in thinking that the notarial
servitudes are equitable
documents that can be enforced.
14. I
admit that the Respondent informed Applicant’s members that the
electricity transformers that supply electricity to
Kungwini Manor
Estate had been damaged and that a temporary connection to the
Kungwini Ranch Estate had been made. I fail to understand
how this
is the Applicant’s problem. It is the duty of the Respondent
to provide the essential services to the estate.
If the transformer
installed by the Respondent was faulty or damaged it is the duty of
the Respondent to repair or replace it.
16.1 I
admit that Eskom had a supply line available to the Applicant. Eskom
prepared a quote to connect the power to the estate.
The quote
amounted to R98 321.42 (ninety eight thousand, three hundred and
twenty one rand, fourty two cents). A true copy of
the quote is
annexed hereto as annexure “
D
28”
. Although Applicant
was able to pay for the connection, it was and remains of the view
that the expenses is the responsibility
of the Respondent.
Respondent has failed to make use of the opportunity to connect the
estate to the Eskom power supply.
22.2 On
the one hand the Respondent states that it has no further documents.
On the other hand the respondent states that it is
entitled to
exercise a debtor’s lien over documents that is still retains.
I humbly submit that only one of these versions
can be accurate. The
applicant is of the humble opinion that the Respondent still has
substantial documents relevant to the period
when it managed Kungwini
Manor Estate. These documents have to be discovered. ”
In
paragraph 6.1 the portion which is sought to be struck out is the
one starting with “
I fail to
understand”
.
In
paragraph 14 as quoted above, the striking out is in respect of the
sentence starting with “
I fail
to understand
”. Paragraph 8 is
for the whole paragraph except for the first sentence thereof.
Paragraph 6.2 is for the whole paragraph,
except for the last
sentence thereof. The respondent also seeks to expunge annexure
D27 to the replying affidavit. Annexure
D 27 is a copy of the
conditions of Township Establishment imposed on the respondent as
referred to in paragraph 4.2 of the
replying affidavit and quoted
in paragraph 27 above.
For
th
e paragraphs sought to be expunged to
be seen in proper perspective, I find it of a great importance to
set out both the terms
of the original notice of motion and the
amended notice of motion that accompanied the replying affidavit.
The terms of the
original notice of motion are as follows:
“
2.
That
the Respondent be interdicted from disconnecting or disrupting, in
any way, the water and electricity supply to Kungwini
Manor Estate;
3. That
prayer 2 shall operate as interim relief pending the outcome of
application to be instituted by the Respondent in terms
of the
Promotion of Access to Information Act, 2 of 2000
and thereafter an
action or application for the debating of accounts or the
declaration of rights;
4.
In
the alternative to prayers 2 and 3 above, that the Respondent be
interdicted from disconnecting or disrupting, in any way,
the water
and electricity supply to Kungwini Manor Estate pending;
4.1
an
application by the Applicant for the supply of electricity by Eskom
or Kungwini Municipality;
4.2 an
investigation about the availability of alternative water supply
sources in the vicinity of Kungwini Manor Estate by any
Municipality;
5.
That
the interdict in 4, shall operate pending the outcome of any
applications for the supply of water and electricity as envisaged
in
4 above;”
The aforesaid terms of
notice of motion are sought to be amended as follows in the amended
notice of motion:
“2. That
the Respondent be interdicted from disconnecting or disrupting in any
way, the water and electricity supply to
Kungwini Manor Estate;
3. That
prayer 2, shall operate as interim pending the outcome of:
3.1 application
to be instituted by the Applicant within 30 (thirty) days from date
of this order, in terms of the
Promotion of Access to Information
Act, 2 of 2000
for the discovery of any and all documents related to
the Respondent’s management of Kungwini Manor Estate prior to
1 October
2008;
3.2 an
action or application to be instituted by the Applicant within 30
(thirty) days from date of this order for the setting aside
/
cancellation of clause 8 that appears in Notarial Servitude number
K06 063322 and clause 9 that appear in Notarial Servitude
number K06
06324 alternatively an order declaring that the above clauses in eth
above notarial deeds of servitude are unenforceable.
4. Should
Applicant fail to institute any of actions / applications referred in
paragraphs 3.1 and or 3.2 within 30(thirty) days
from date of this
order the interim order shall immediately and automatically lapse;
5. That
the Respondent be ordered to pay the cost of this application;
6. Further
and /or alternative relief.”
The
grounds of attack against the replying affidavit are twofold.
Firstly, that the paragraphs sought to be struck out, should
have
formed part of the applicant’s founding affidavit and
secondly, that they are inadmissible inasmuch as they seek
to
introduce new cause of action in the replying affidavit.
These
two grounds were amplified during the discussion to mean that the
applicant had abandoned his initial cause of action
in the founding
affidavit and substituted it with a new cause of action in the
replying affidavit. This is not permitted,
so it was contended on
behalf o f the respondent.
In
making the submission, counsel for the respondent heavily relied on
the full bench decision in the case of
Johannesburg
City Council v Bruma Thirty Two (PTY) Ltd
1984 (4) SA 87
TPD.
I find it necessary to deal with this case in some detail inasmuch
as the respondent in these proceedings sought to rely on
it.
On
or about 28 February 1982, Johannesburg City Council refused to
approve building plans submitted to it by Bruma Thirty-Two
(PTY)
Ltd (the applicant in the court a quo). City council was the
respondent. Despite refusal to approve the plans, the
applicant
proceeded to build town houses and completed them. On the 9
November 1982 be reviewed and set aside, the council
took a
decision to have the buildings, aforesaid demolished. The
applicant instituted motion proceedings seeking to have the
decision that was taken on the 28 February 1982. It also sought to
interdict the Council from demolishing the buildings pending
finalisation of the review proceedings to set aside the refusal to
approve the building plans.
During the hearing of
the proceedings, the applicant sought to challenge the decision to
demolish the buildings. In doing so,
it abandoned its initial
claim to challenge the refusal to approve the plans. It alleged
that the Council in taking the decision
to demolish the buildings
did not give it a hearing. The latter cause of action was
challenged as being impermissible inasmuch
as it introduced not
only fresh facts, but also knew cause of action.
The court a quo
dismissed the challenge by the Council. On appeal, the court a quo
was found to have misdirected itself in
two respects;
that
it failed to appreciate that this was not a case of new matter,
appearing in the replying affidavit.
It
amounted to an abandonment of the existing claim
together with its cause of action and the substitution of a fresh
and completely different claim based
on different cause of action
(my own
emphasis).
That
the court a quo failed to appreciate that over this new cause of
action, is the basis of a new claim, the original motion
without
suitable amendment was inadequate to sustain a claim for a
temporary interdict, as the original temporary interdict
was
claimed
on the basis of a completely
different alleged right
. The prayer
for alternative relief then became a rather cloak which could not
provide any refuge for the applicant.
For
the reasons that follow, seeking to rely on the decision in the
Johannesburg City Council, fails to distinguish facts of
that case
with the facts of the case before me. Secondly, the claim is not
only misplaced but is also without any basis:
It
cannot be correct that the applicant’s new cause of action
is
“a complete different
right”.
To put it
differently, it cannot be correct that the new matter introduced
by the applicant in its replying affidavit amounted
to an
“abandonment of the existing claim together with its cause
of action
and completely different
claim based
on a different cause of
action to which the applicant is not entitled to rely on.
In
the initial notice of motion quoted in paragraph 27.4 above, the
applicant proposes to assert its right in terms of the
Promotion
of Access to Information Act 2 of 2000
. Similarly, in terms of
the amended notice of motion quoted in paragraph 27.5 of this
judgment, the applicant seeks to
assert the same right. Access
to information is sought to enable the applicant to decide
whether to institute an action
or application against a defendant
or respondent and if so, in what form. In the initial
application, access to information,
was to sought in order to
decide whether to debate the respondent’s accounts or
whether to ask for declaration of
rights. In the amended notice
of motion, possible challenge to the accounts is not mentioned,
but what is intended to
be done with the information required is
couched in a wide term.
In
the amended notice of motion, there is no longer a desire on the
part of the applicant to ask for information in order
to decide
whether to launch an application or action for the debating of
accounts. This should be seen in the light of
the respondent’s
own abandonment. Before the 21 September 2009, and after that
period till up to the 10 April 2010,
the respondent had been
demanding from the applicant, certain amounts of money alleged to
be due to it. On the other hand,
the applicant had been
demanding proof of documents, invoices or statements to support
such demand. But, the respondent
failed to furnish same.
However, in its answering affidavit, the respondent abandoned a
claim against the applicant based
on the latter’s
indebtedness to the respondent. Instead, the respondent in its
answering affidavit wishes to rely
on certain conditions of the
water and electricity registered deed of servitude and in
particular, clause 8 of the Water
Servitude and clause 9 of the
Electricity Servitude. The relevant provisions are referred to
in paragraph 25.10 of this
judgment. It is clear that the
abandonment of reliance on the indebtedness to it, rendered the
claim to seek the accounts
academic.
The
desire to have certain declaratory orders be made as set out in
paragraph 3 of the original notice of motion, is not completely
abandoned in the amended notice of motion, to which the respondent
raised no objection. I am referring to the amendment itself.
In
paragraph 3.2 of the amended notice of motion, the applicant
proposes to ask the court to make certain declaratory orders.
That
is, an order that, Clause 9 of the electricity servitude and Clause
8 of the Water Servitude as registered with the Deeds
Office be
declared unenforceable. This in my view, should be seen in context
of the original notice of motion which can be
read in part as
follows:
“
That
prayer 2, shall operate as interim relief pending the outcome of the
application to be instituted by the applicant in terms
of the
Promotion of Access to Information Act 2 of 2000
and thereafter
…
or application for the declaration of rights”
The
essence of striking out application is to do away with the entire
paragraph 3.2 of the amended notice of motion. The paragraph
is
been attacked on two grounds. Firstly, that it serves to introduce
new grounds of cause of action. Secondly, it is suggested
that it
should have been stated in the founding affidavit. I have already
indicated that I am not satisfied that paragraph
3.2 did introduce
“a
complete new cause of
action
”.
The
alleged introduction of new cause of action must also be seen in
context. Put it differently this way, the respondent is
the one
who had introduced or prompted it. It abandoned reliance on the
indebtedness to it as a defence. It seeks to stand
or fall by
Clause 9 of the Electricity Servitude and Clause 8 of the Water
Servitude. That is, it is entitled to terminate
the supply of
water and electricity on a six months notice.
One
may ask. Is an applicant barred from dealing in its replying
affidavit with a defence that is raised in an answering
affidavit?
In paragraph 23 of this judgment, I referred to a principle that
the applicant may bring in a fresh matter in
a replying affidavit
if this is by way of reply to a defence raised by the respondent.
I see no reason as to why this principle,
should not be applicable
in the present case. In my view, this should be the case
irrespective whether or not such new facts
should have been
anticipated when the founding papers were drawn.
[28] I
turn to deal with the issue whether or not paragraph 3.2 of the
amended notice of motion and the averments to support same,
should
have been stated or made in the original notice of motion and
founding affidavit. The test in my view, should be subjective
and
not objective as it was at one stage intimated by counsel on behalf
of the respondent during the discussion. It did not know
about the
information as stated in paragraph 4.2 of the replying affidavit
quoted earlier in paragraph 27 of this judgment.
[29] Attempt
to suggest that the applicant should only blame itself in not
discovering this information timeously, should be seen
in context.
Whilst the respondent on this contention, wishes to rely on the
notice of termination of services dated the 21 September
2009, it
should also blame itself. In the notice, it states as follows:
“
In
terms of the above notarial Deeds of Servitude, you are hereby
notified in terms of Clause 8 that Kungwini Estate (PTY) Ltd,
will
cancel the rendering of services as envisaged by Clause 2 of the
servitude deeds, 6 months from the date of this notice being
1
0
April 2010”.
[30] Then,
there was a suggestion that paragraph 9 of the electricity notarial
servitude should have been read in the notice. Of
course, this only
serves to indicate the possible confusion. The notice quoted above,
makes no reference to the termination by
notice of electricity
services. Neither is reference made to a clause in the electricity
notarial servitude entitling the respondent
to terminate electricity
servitude on six months notice. The suggestion that reference to
electricity servitude should have been
inferred from mentioning of
the electricity notarial servitude number in my view, should also be
seen in context. Throughout,
the respondent had been persistent that
the applicant owed it money. It intimated its entitlement to
terminate the supply of water
and electricity based on breach to pay
the respondent. Even in the notice of the 10 April 2010, emphasis
appears to have been
on the applicant’s indebtedness to the
respondent. It was the contention on behalf of the applicant that,
it could have
been blindfolded by all of these. I am inclined to go
along with this submission.
[31] I do not think that
failure to have raised the unenforceability of the provisions of
clause 9 of the electricity notarial servitude
and clause 8 of the
water notarial servitude in the original notice of motion and in the
founding affidavit can stand in the way
of the applicant to raise it
in replying affidavit, particularly having regard to the cumulative
effect of the facts of the present
case as already outlined in this
judgment.
[32] Of
course, there is another aspect which in my view, should have brought
an early end to the striking out application. Inasmuch
as the
respondent sought to rely on the Johannesburg City Council’s
case, notice of amendment having been delivered should
have served as
a deterrent to the respondent to persist with the striking out
application. It did not. I deal with the effect
of this when
dealing with the issue of costs. It suffices to say, the amendment
should be accepted.
[33] There was a stage
when counsel for the respondent sought to argue that, in a situation
where a cause of action is introduced
for the first time in a
replying affidavit, the court does not have a discretion and no
consideration of prejudice. Obviously,
this was an over statement
and it was abandoned the following day when the matter proceeded to
be argued.
[34] I then understood
counsel for the respondent to be saying exceptional circumstances
ought to be established and that the applicant
had failed to
establish such circumstances. I do not agree. This should then
bring me to deal with the next issue raised in paragraph
18.2 of this
judgment.
WHETHER THE RESPONDENT
SHOULD BE ALLOWED TO FILE FOURTH AFFIDAVIT?
[35] The
issue of leave to file a fourth affidavit was first intimated by the
court when counsel for the respondent was asked if
he would be in a
position to argue the matter on merits if the application for
striking out is refused. What the court had in
mind was to allow the
respondent to provisionally file a fourth affidavit, so that the
matter could be proceeded with on merits
in case the striking out is
refused.
[36] It
was at this stage when counsel for the respondent indicated that he
would need weeks to deal with the fourth affidavit.
This prompted
the court to direct that the matter be argued only on the striking
out. Submissions were presented on the 15 and
16 September 2010.
[37] At
the risk of repeating myself, the court will exercise the discretion
whether or not to allow a fourth affidavit against
the backdrop of
the fundamental consideration that a matter should be adjudicated
upon all the facts relevant to the issues in
dispute. Secondly, and
again, it is essentially a question of fairness to both sides as to
whether or not further sets of affidavits
should be allowed provided
an explanation which negates
mala fides
or culpable remissness as to the cause
of the facts or information not having been put before the court at
an earlier stage. The
court must also be satisfied that no prejudice
is caused by filing of the additional affidavits.
[38] It
did not look like the respondent was desirous of following the route
of the fourth affidavit. If it did, it would have
initiated such as
an alternative without the court having had to prompt it. Remember,
the procedure of striking out is not intended
to be utilised to make
technical objections which are of no value to anyone and merely,
increase costs and when so utilised it
would be refused. Whether or
not the respondent utilised such technical objections is not for me
to decide, inasmuch as I am not
dealing with the merits of the
application. The ultimate fourth affidavit which I intend to allow,
would be a determining factor
on the issue.
[39] Prejudice
in allowing the striking out or refusing it and allowing the fourth
affidavit is a dominant consideration. For example,
the respondent’s
counsel conceded that the effect of allowing the striking out would
mean to send the applicant to the drawing
board. That is, to withdraw
the application and then institute the proceedings afresh in order to
place in the founding affidavit
facts supporting paragraph 3.2 of the
amended notice of motion. In the meantime, the respondent continues
with its threat to disconnect
the supply of electricity and water to
the inhabitants of Kungwini Manor Estate. If this was to happen,
undoubtedly, irreparable
harm would be caused.
[40] The
prejudice to the applicant and its members should be seen against
balance of the prejudice that could be caused to therespondent.
Firstly, the prejudice to the applicant and its members is not a
speculation. It is a reality. Without water and electricity
could
be catastrophic. On the other hand, prejudice to the respondent is
much more of commercial in nature. That is, the respondent
may
continue not to be paid by the applicant. The applicant never
refused to pay the respondent. The respondent issaid not to
have
cooperated in furnishing the requested information. The respondent
is worried that it might suffer damages. For example,
damage could
be caused to other people’s property. The applicant may not be
in a position to meet all of its financial obligations.
The
respondent is been placed or would be placed under financial burden
by the applicant. All of these are either not proved or
are
speculative.
[41] In
my view, allowing the respondent to file fourth affidavit would be
less evil. It is not like the respondent is been caught
by surprise
by the introduction of paragraph 3.2 of the amended notice of motion
and by the discovery as set out in paragraph 4.2
of the relying
affidavit. Annexure D 27 to the replying affidavit is a product of
the respondent and the Municipality, when the
Township for Kugwini
Manor Estate was established. Therefore, the respondent should be in
a position to raise whatever defence
if any, it wishes to raise
regarding annexure D27 in the fourth affidavit. I therefore find
that it would only be fair and would
also serve to expedite
finalisation of the dispute between the parties to allow the fourth
affidavit as against the striking out.
I now turn to deal with the
issue raised in paragraph 19.1 of this judgment.
WHETHER IN THE ABSENCE OF
AN UNDERTAKING NOT TO DISCONNECT THE SUPPLY OF WATER AND ELECTRICITY
AND THE COURT REFUSING THE STRIKING
OUT, BUT ALLOWING THE RESPONDENT
TO FILE FURTHER AFFIDAVIT, THE RESPONDENT IS AT LIBERTY TO CONTINUE
WITH ITS THREAT?
[42] This
brings me to another issue which was raised by the applicant, as a
preliminary issue. That is, the applicant is bound
by the
undertaking not to disconnect the supply of water and electricity
pending finalisation of the present application on merits.
This
undertaking was made in the letter of the 7 May 2010 and it is quoted
in paragraph 7 of this judgment.
[43] As I understood
counsel for the applicant, the contention was to the effect that the
respondent waived his right, if any, to
disconnect the supply of
electricity and water before finalisation of the present application
on merits. For the following reasons,
I had difficulties with this
contention.
43.1 Waiver
relied upon, is not unqualified. The question is, whether such
“waiver” as stated in the letter of the
7 May 2010 could
disentitle the respondent to assert his right, if any to disconnect
the supply of water and electricity. Whilst
I indicated my
difficulty when counsel for the applicant argued the point, it was
before counsel for the respondent indicated that
a postponement of
the application would be required in the event the striking out
application is refused. Secondly, I did not ask
the respondent
counsel to address me on the issue. It would only be fair to defer
the issue for practical purposes. On the second
thought, the issue
might have other ramifications on the notice of termination the
respondent seeks to rely upon. For example,
did the notice of the
21 September 2009 remain valid despite the undertaking and the six
months period in terms of the notice
having expired? I therefore,
refrain from making a determination on the preliminary issue raised
by the applicant.
[44] Coming
back to the issue under discussion, despite the indication to ask for
more time to file further affidavit, in the event
of striking out
application being refused, the respondent did not seem prepared to
resuscitate the undertaking. I have already
indicated that the
disconnection of supply of water and electricity would result in
irreparable harm. I should not be understood
as making a final
pronouncement on the merits of the application. It is for this
reason that I made an order interdicting the
respondent. I come
again to this order later in this judgment. This should then bring me
to deal with the last issue raised in
paragraph 19.2 of the judgment.
WHO MUST BE ORDERED TO
PAY THE WASTED COSTS OCCASIONED BY THE STRIKING OUT APPLICATION AND
POSTPONEMENT OF THE MATTER?
[45] On
the 14 September 2010 when the matter was called, it was stood down
until the 15 September 2010 for 14h00. On the 15 September
2010, the
striking out application was argued. Further submissions on the
striking out were continued on the 16 September 2010.
Having granted
the order, the matter was stood down until Monday 20 September 2010
to give reasons. Costs were reserved.
[46] The
applicant should be seen as a successful party in the application for
striking out. It should therefore be entitled to
costs. Secondly, as
already stated in this judgment, I do not think persistent with the
application for striking out was justified.
There were just no
merits. Lastly, the court having intimated its willingness to
afford the respondent the opportunity to file
fourth affidavit,
persistence with the striking out was unreasonable. All of these
should entitle the applicant to be granted
costs.
ORDER OF THE 16 SEPTEMBER
2010
[47
] The
order that I made on the 16 September 2010 reads as follows:
“1. An
application for striking out as in terms of the notice of striking
out is dismissed, reasons in this regard will be
delivered on
Monday 20 September 2010,
The decision on costs
is stood down until 20 September 2010,
The respondent is
hereby interdicted from disconnecting or disrupting in any way, the
water or electricity supply to Kungwini
Manor Estate, pending
finalisation of the dispute between the parties in the main
application and pending any decision or further
decision that may be
made by this court on 20 September 2010 regarding further pending
issues between the two parties.
The main application
is postponed sine die”.
[48] Immediately upon
making the above mentioned order, counsel for the respondent stood up
to say “
There is no main application”.
I must
assume that it skipped counsel’s mind that it was specifically
indicated on the afternoon of the 15 September 2010
that parties
must argue the matter only on the striking out application. This
was after he had declined the offer to file a
provisional fourth
affidavit and after he had indicated that he would need some weeks
to consider and file such an affidavit.
[49] Before me, there was
an application for striking out. This did not deal with the merits
of the application. It was a side
issue. To have stood in the
manner counsel for the respondent did and claimed that there was no
main application was unwarranted.
Clearly, there were to applications
before me, the striking out application and an application in terms
of the amended notice of
motion by the applicant. The latter was
certainly the main application.
[50] Paragraph 3 of the
order quoted above is very clear. The respondent was interdicted
“
pending … and any decision or further decision that
may be made by this court on the 20 September 2010 regarding further
pending issues between the two parties”
.
[51] The application for
the striking out having been argued in a busy urgent motion court,
there was just no sufficient time to
deal with every submission made
and the issues raised thereby. I however, regarded the decision on
the striking out application
and on the interdict being important to
be made there and then.
[52] I have already
pronounced myself on the fourth affidavit in this part of the
judgment. The order which I intend to add hereunder
should be
covered by part of the order quoted in paragraph 50 above.
CONCLUSION
[53] I therefore conclude
by repeating the order of the 16 September 2010 and by adding to the
order as follows:
An application for
striking out is dismissed.
The respondent is
hereby interdicted from disrupting or disconnecting in any way, the
water and electricity to Kungwinin Manor
Estate pending:
Delivery of the fourth
affidavit by the respondent, such affidavit to be delivered within
14 days from date of this order, and
53.3.1 pending the
finalization of the dispute between the parties in the main
application,
The main application is
postponed sine die,
The costs of the 14
September 2010 are to be costs in the cause of the main
application, and costs of the 11 May 2010 remain
reserved.
The respondent to pay
the costs of the striking ou application for the 15 and 16
September 2010.
LEGODI
JUDGE
OF THE HIGH COURT
STUART
VAN DER MERWE INC.
Applicant's
attorneys
Solicitor's
Chambers
825
Acardia Street
Acardia,
PRETORIA
TEL:
012 343 1900
LOUIS
WEINSTEIN
Respondent's
attorneys
TEL:
011 705 1920
c/o
SAVAGE JOOSTE & ADAMS INC.
141
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Cnr
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New
Muckleneuk, PRETORIA
TEL:
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