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[2016] ZAECPEHC 22
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Keypak (Pty) Ltd v Dyakala and Another (3877/2015) [2016] ZAECPEHC 22 (24 May 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION, PORT ELIZABETH
Case no:
3877/2015
DATE: 24 MAY 2016
In the matter:
KEYPAK (PTY)
LTD
...............................................................................................................
Applicant
Vs
M W
DYAKALA
...........................................................................................................
First
Respondent
NELSON MANDELA
BAY
MUNICIPALITY
......................................................
Second
Respondent
JUDGMENT
Date heard:
5th May 2016
Date delivered:
24th May 2016
TSHIKI J:
[1]
On the 9
th
October 2015, the applicant filed an application against the
respondents for an order in the following terms:
[1.1]
that the first respondent is interdicted from threatening, harassing
and intimidating the directors, employers and suppliers
of the
applicant;
[1.2]
that the first respondent is interdicted from entering the area
within a 50 meter radius from the boundary walls surrounding
the
applicant’s premises situated at 4, 5, 25 and 32 York Road,
North End, Port Elizabeth;
[1.3]
that the first respondent is directed to pay the costs of this
application on a scale as between attorney and client;
[1.4]
further and/or alternative relief.
[2]
Although there are two respondents, the main respondent who is the
first respondent is employed by the second respondent as
a municipal
traffic officer at the department of licensing services at the corner
of Sidwell Avenue and Cresswell Street, Sidwell
in Port Elizabeth.
The second respondent is the nominal defendant by virtue of being the
employer of the first respondent.
[3]
The applicant herein is a company known as Keypak (Pty) Ltd which is
a limited liability company with
locus
standi
to institute the proceedings
against the respondents. Applicant is conducting a business of
manufacturing corrugated solid
board and litho laminate cartons to
all regions of the Republic of South Africa. The applicant has
conducted its business
from several premises at,
inter
alia
, 4, 5, 25 and 32 York Street,
North End, Port Elizabeth. Its premises are in close proximity to
each other being on the same block
between Lancaster Street and
Stockelback Road. The furthest distance between the business premises
of the applicant is about 300
metres in between them and the shortest
distance being only 4 metres in between.
[4]
The first respondent is referred in the papers as
M.W.
Dyakala
a traffic official duly
employed by the second respondent at the Department of Traffic and
Licencing Services at the corner of
Sidwell Avenue and Cresswell
Street, in Sidwell Port Elizabeth. It, therefore, follows that
all the parties herein reside
and are employed within the
jurisdiction of this Court.
[5]
The applicant’s complaint against the first respondent is based
on the events which emanated on the 18
th
August 2015 when
the first respondent in his employment capacity as a traffic officer
issued traffic fines to the forklift drivers
employed by the
applicant. The first respondent justified his conduct on the
basis that the drivers and/or applicant’s
employers did not
comply with licensing and traffic regulations in respect of the use
of the said forklifts and vehicles relative
to the offloading on the
public roads. Up to that stage, the applicant was not aware
that its conduct and/or that of its
employees were unlawful. In
any event, according to the applicant, for the past twenty five years
the applicant had not been
informed of the alleged legal
transgressions of the law. In a meeting between the parties also
recorded in an email thread of 28
th
August 2015 from one
Noelene Jorgensen
the following was highlighted as discussed
and agreed at the meeting as follows:
[5.1]
Visagie
confirmed that it is not illegal to operate a licensed
and registered forklift on a public road on condition that the
relevant provisions
of the National Road Traffic Act are complied
with;
[5.2]
It is permitted by the National Road Traffic Act for the driver of a
forklift to drive the forklift on a public road if he
or she has a
code B driving licence provided that its Gross Vehicle Mass of the
forklift exceeds 3500kg, and such driver shall
at least hold a Code
C1 driving licence;
[5.3]
According to the applicant the parties agreed that for the possible
loading zone demarcations and possible prohibition of
stopping on the
opposite side of the road, one
Skosana
undertook to discuss
the matter further with one
Kleyn
regarding the road marking
that needed to be painted;
[5.4]
the applicant will continue to use orange beacons for greater
visibility when loading and offloading vehicles.
[5.5]
According to the applicant the above arrangements resulted in the
agreement between the parties in that the licensing regulations
in
respect of the applicant’s forklifts and drivers hold the
correct licenses as proposed by
Visagie
provided that the forklifts were duly
licensed and registered. If the above arrangements are complied
with, the traffic regulations
in respect of the use of the forklifts
and loading vehicles on the public roads at York Road and Lancaster
Street between the applicant
and the second respondent would become
lawful.
[6]
Notwithstanding the arrangements and agreements between the parties
mentioned herein the first respondent kept on attending
the
applicant’s premises to catch out and issue fines to the
applicant’s forklift drivers and suppliers based on the
same
reason that the applicant was still contravening the same traffic
laws. The applicant insisted and reiterated that it
was not
contravening any traffic or licensing law by way of operating its
forklifts. The applicant contended that it also
sought legal
advice which was in the applicant’s favour in that the conduct
of the first respondent was unlawful and an abuse
of power in its
insistence of issuing fines against the respondent. There were
also threats of arrests by the first respondent
until the applicant
filed an application for interdict which was opposed by the
respondent.
[7]
Mr Menti
who appeared for the respondents contended in his argument mainly on
four points
in limine
which
are:
[7.1]
That the applicant’s replying affidavit was filed late and not
on the 29
th
March 2016 as is required by the rules.
There was also no application for condonation for non-compliance with
Rule 6(5)(d)(ii)
of the Uniform Rules of this Court. In
Mr
Menti’s
view the applicant should first had applied for
condonation before it filed its replying affidavit.
[7.2]
The relief sought by the applicant that first respondent be
interdicted from entering the area within the 50 metre radius
from
the boundary walls surrounding applicant’s premises at 4, 5, 25
and 32 York Road was bad in law and constitutes an abuse
of the Court
process. Therefore, the first respondent should not have been
refused his right to do his duties as a traffic
officer unless there
was a lawful reason by the applicant to do so.
[7.3]
The third point
in limine
is that there is a material dispute
of fact which the applicant foresaw or should have reasonably
foreseen that it existed. He listed
them as follows:
·
the first respondent disputes the
applicant’s allegation that the applicant does not contravene
the traffic regulations as
alleged;
·
the first respondent also denied the
assertion that he harassed applicant’s employees;
·
The next contention is that first
respondent disputes having agreed with the applicant for harassing
him without justification.
It is, therefore, in dispute whether the
first respondent acted
mala fides;
·
in his view
Mr
Menti
contended that the application
could not properly be decided on affidavits and that the applicant
should have foreseen that the
issues herein would be incapable of
resolution on the papers and for that reason the Court should dismiss
the application with
costs;
·
In any event, according to
Mr
Menti
this Court should dismiss the
application for the reason that it was clearly reasonably foreseeable
that there are fundamental
disputes of fact on the papers which could
not be resolved by affidavits. He relied on the judgments in
Room Hire Company (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949 (3)
SA 155
(T) at 1162. See also
Transnet
Ltd trading as Metrorail v Rail Commuters Action Group
2003
(6) SA 349
(A) at 368 C-D and G-H;
·
The last point
in
limine
by
Mr
Menti
is that in the founding affidavit
paragraph 12.8 the first respondent deny that he is aware of an
agreement between applicant and
second respondent regarding his
interpretation of the National Road Traffic Regulations. The
first respondent attached annexures
A, B and C as the fines issued by
him to the applicant on a public road contrary to the allegations by
the applicant who contended
that the parties had resolved their
disputes.
[8]
There is proof confirming the allegation that the first respondent
issued traffic fines to the applicant. The first respondent
insisted
with the issue of the traffic fines notwithstanding the fact that
there is evidence that the matter was discussed with
the applicant’s
employees. In my view, the traffic officer who issued the summons
must be consulted if there is a request
for the withdrawal of the
summons.
[9]
The first respondent’s opposition to the application is based
mainly on two grounds which are:
[9.1]
the agreement reached between the applicant and the second
respondent’s representative or agent(s) could not amount
to:
[9.1.1]
an amendment to the regulations of the National Road Traffic
Regulations;
[9.1.2]
can also not interfere with the zoning scheme of the second
respondent.
[10]
It follows from the aforegoing that the first respondent insisted on
his opposition of the contentions by the applicant.
In his view
the applicant’s forklift on the public road was in violation of
the National Road Traffic Regulations.
In my view, it was for
those reasons that the first respondent insisted on the validity of
the fines issued by him. According
to the first respondent the
fines issued by him could be categorised into the following groups:
[10.1]
licensing regulations in respect of the applicant’s forklift;
and
[10.2]
traffic regulations in respect of vehicles loading and offloading on
public roads. This conduct was the very act that
was opposed by
the first respondent hence the first respondent issued summons
against the applicant and or its employees.
[11]
According to the applicant the fines that were issued to the
applicant’s driver for contravention of Regulation 12(a)
and
(b) were issued,
inter alia
,
for those reasons. Therefore, according to the applicant the
fines were accepted by the applicant and accordingly paid.
However,
according to the applicant some of these fines were in turn
withdrawn.
[12]
Notwithstanding the issue of summons against the applicant’s
employees coupled with the meetings which, according to
the applicant
were held between the parties there was no resolution of the disputes
between the parties. The first respondent
also continued to
issue the summons and/or traffic fines against the applicant’s
employees and/or owners on the grounds that
they had violated the
traffic regulations.
[13]
In my view, had there been peace and a resolution of these issues, as
the applicant has contended, this matter should never
have come to
this stage of the proceedings. This is also evinced by the
failure of the parties to end their disputes.
In the
circumstances it does not appear to me that there was peace between
the parties.
[14]
In a situation where the application cannot properly be decided on
affidavit the Court may dismiss the application or make
such order as
it seems meet with a view to ensuring a just and expeditious
decision. This is so in a case where the applicant should
have
realized when launching his or her application that a serious dispute
of fact, incapable of resolution on the papers was bound
to develop.
[15]
In the present application the first respondent contends in his
answering affidavit that an agreement between
Noelene
and
Gary
and
Mr
Kleyn
of the second respondent was
invalid and could not be supported by any law or the National Road
Traffic Regulation. In any
event, according to the first
respondent the said parties had no authority to interfere with the
zoning scheme of the second respondent.
Mr
Visagie
also does not state which
relevant provision of the National Road Traffic Regulation ought to
be interfered with. According
to the first respondent the
applicant operated and continued to operate a forklift on a public
road in violation of Regulation
21(4) (a) and (b) of the National
Road Traffic Regulations. According to the first respondent on
the 18
th
September 2015 he issued a traffic fine to
Mr
Deysel Jason
who was employed by the
applicant for a contravention of section 12(a)read with section 89 of
the National Road Traffic Regulation
read with section 12(b) and
further read with section 89 of the National Road Traffic
Regulation.
Deysel Jason
was issued with the fine because he operated a red Manhand-Huster on
a public road without a valid driving licence. The first
respondent also issued a traffic fine to the Manhand-Huster for
permitting an unlicensed driver to drive the Manhand-Huster,
registered
number HJZ 088 EC CC no N37026OVCB and also for a notice
to discontinue the operation of the said Man-Huster registered HJZ
088
EC. According to the first respondent, he issued the said
traffic fine in terms of Regulation 21(4) (a) (b) and (c) of the
National Road Traffic Regulation. It should be noted that the
applicant in its papers has not made reference to the abovementioned
documents by way of referring to them as annexures.
[16]
The first respondent also denied the contents of paragraph 14.4.2 of
the applicant’s founding affidavit. He also
denies that
the applicant’s forklifts and loading vehicles could not travel
on public roads in particular in York Road and
Lancaster Street.
In his view, there was no such agreement made between himself and the
applicant.
[17]
The first respondent contended in his affidavit that a Manhand-Huster
cannot be operated on a public road for the purpose of
being driven
to the premises of the owner in order for the owner to take delivery
thereof. It also cannot cross a public road from
the premises of the
owner to another over a distance of not more than one kilometre. This
is so, even if it is driven to that place
for repairs.
[18]
It seems to me that the main issues contended in the answering
affidavit cannot be gainsaid by the applicant and in saying
so I
refer herein to the evidence of the first respondent. The applicant
was given a traffic fine on the basis as stated in the
first
respondent’s affidavit. Applicant, in my view, is unable to
contend that the contents of the first respondent’s
affidavit
in that regard are not true. I have no reason not to believe the
contentions averred by the first respondents and cannot
say they are
not true. In any event, in cases with facts similar to ours where the
affidavits reveal certain disputes of fact,
a final interdict should
only be granted in notice of motion proceedings if the facts as
stated by the respondent(s) together with
the admitted facts in the
applicant’s affidavits justify such an order. Where it is clear
that facts, though not formally
admitted, cannot be denied and they
are regarded as admitted. This has been the case in
Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C) at 235 E-G. See also
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(AD).
[19]
In
Wightman t/a JW Construction v Headfour (Pty) Ltd and
Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
[2008] 2 ALLSA 512
para [13]
Heher JA had the following to say
:
“
A
real, genuine and
bona fide
dispute
of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed. There
will be of course be instances where a bare denial
meets the
requirements because there is no other way open to the disputing
party and nothing more can therefore be expected of
him. But
even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party and no
basis is laid for
disputing the veracity or accuracy of the averment...”
[20]
It follows from the aforegoing that in motion proceedings, as a
general rule, decisions of fact cannot properly be founded
on a
consideration of probabilities, unless the Court is satisfied that
there is no real and genuine dispute of facts in question,
or that
the one party’s allegations are so far-fetched or clearly
untenable as to warrant their rejection merely on the papers
or that
viva voce
evidence
would not disturb the balance of probabilities appearing from the
affidavits as it is the case herein. This rule,
which is trite,
applies to instances of dispute of fact (see eg
Sewmungal
and Another NNO v Regent Cinema
1977
(1) SA 814
(N) at 818 G-821G and the authorities discussed there) and
also in cases where an applicant seeks to obtain final relief on the
basis of the undisputed facts together with the facts contained in
the respondent’s affidavits (see
Administrator,
Transvaal, and Others v Theletsane and Others
[1990] ZASCA 156
;
1991
(2) SA 192
(AD) at 197).
[21]
From what I have read in the papers the first respondent has never
been in agreement with the applicant in any material issue that
we
have dealt with in this case. Generally, traffic offences are
tried in a criminal court with a view to establish the guilt
or
innocence of the accused person. In my view, it is for that
reason that the first respondent insisted that the issues
between him
and the applicant be referred to the Court for its adjudication of
the relevant issues.
[22]
The applicant’s case does not answer the question why the first
respondent insisted on carrying on with the issuing of
the traffic
fines against the applicant up to the last hurdle. This, in my view,
is highly unlikely to happen if the parties had
intended to resolve
the issues between them as the applicant has suggested. There is also
no explanation from the applicant why
if they were initially in
agreement with the first respondent their issues were not resolved.
The first respondent insisted with
his duties up to the last hour and
until the applicant instituted the interdict proceedings and without
any justification. Having
said this, in my view, the respondents’
averments appear to me to be more genuine than what the applicant has
attempted to
tell this Court in its affidavits.
[23]
In the result, the application is dismissed with costs.
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant : Adv. Rossi
Instructed
by : Friedman Scheckter
PORT
ELIZABETH
Ref:
T Klos/LB/L08420
Tel:
041 395 8400
For
the respondents : Adv. Menti
Instructed
by : Noble Sikwela Attorneys
PORT
ELIZABETH
Ref:
NBS/0565/NomaS
Tel:
041 819 6433