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[2023] ZAGPPHC 535
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Mokrane and Another v Bornman and Others [2023] ZAGPPHC 535; 2023-062766 (6 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 2023-062766
(1)
REPORTABLE: Yes☐/ No ☒
(2)
OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3)
REVISED: Yes ☐ / No ☒
Date:
06 July 2023
WJ
du Plessis
In
the matter between:
ELVIRA
RUTH MAGDALENA MOKRANE
FIRST APPLICANT
MAKHLOUF
MOKRANE
SECOND APPLICANT
and
JOHANNES
JURGENS BORNMAN
FIRST RESPONDENT
GOTTFRIED
RALPH BORNMAN
SECOND RESPONDENT
ELVIRA
DOROTHEA BORNMAN
THIRD RESPONDENT
JUDGMENT
DU
PLESSIS AJ
Background
[1]
This is an urgent application to interdict and restrain the
Respondents
from contacting, alternatively to correspond with or
report to, the Swiss Canton Polizei and the Swiss Immigration
Services or
any other Swiss government organisation or body,
including the authorities in Wattvil, Switzerland, about or in
respect of the
applicants, whether in their personal capacities or
under the pseudonym “Tom Shear”; to interdict and
restrain the
Respondents from taking steps to prevent the Second
Applicant and the Applicants’ minor children from emigrating to
Switzerland;
to interdict and restrain the respondents form
disseminating in whatever way false, fabricated or defamatory
statements in respect
of the applicants and/or their ownership of the
Gottfried Christian School; costs of the application on attorney can
own client
scale.
[2]
The Applicants must first cross the urgency hurdle before the
substantive
issues can be decided upon. Since the issue of urgency is
so intertwined with the facts, it is necessary to set out the facts
in
some detail.
Facts
[3]
This
unfortunate family dispute rests on an underlying dispute in a
different matter
[1]
relating to
the ownership and shareholding in a company called Gottfried
Christian School (Pty) Ltd, which owns and controls a
school with the
same name. The sole shareholder is the first Applicant. How the sole
shareholding came about is the issue in that
dispute.
[4]
It is the respondents’ case that the shareholding belongs to
either
a family trust or the Third Respondent (the mother of the
First Applicant and first and second Respondent). They claim that the
control of the company was obtained by fraud and theft. The
information about this, the allegation of fraud and theft, is not
reported to the South African Police Service and has not been
deliberated and decided on in court. It is this information that the
Applicant wishes to interdict and restrain the respondents from
sharing.
[5]
Launching these applications brought acrimony amongst the family
members,
now Applicants and Respondents. After launching the
applications, there were various requests to stop direct contact, a
rejection
of mediation and a request from the Second Respondent for a
settlement, followed by various counteroffers and rejections.
[6]
During this
time, a certain “Tom Shear” with an email
t[...]
sent emails to the Applicants requesting the return of one legacy of
the Third Respondent, alleging that it was stolen and obtained
by
fraud. Applicants were told that should they not adhere to this
request, the email would be distributed to their employer, family
in
Switzerland, every church and school in Wattwill, Switzerland (where
they intent to settle), as well as to the Gottfried Christian
School
community (amongst others).
[7]
A similar email was sent to people in the Gottfried Christian School
community
alleging that the applicants defrauded the school from the
legacy of the First Applicant’s late father. A photograph taken
by the Third Respondent and the document generated from the
Applicant’s attorney’s office as served on the
respondents
were attached to these emails. This, the Second Applicant
states, indicates that one of the respondents generated these emails.
[8]
The
Applicants’ attorney requested the First and Second Respondents
to “confirm in writing that they are not involved
in and/or
connected to the email in any way whatsoever”.
[2]
They neither confirmed nor denied it.
[9]
Applicant regards the content as “false, defamatory and devoid
of
any substance” and that it caused emotional trauma and
reputational damage. Should these emails be sent to the Swiss police
and Swiss Immigration Service, they fear entry into Switzerland may
be refused. In light of the fact that the children (and presumably
the First Applicant) are already in Switzerland, they fear it would
prevent family reunification. The Second Applicant thus pre-empts
that he might be barred from entering Switzerland based on
allegations, not proven in a court of law or otherwise. The threats
were made on 26 June 2023, leading to the launch of the urgent
application on 27 June 2023.
[10]
The Applicant advance that since the second Applicant’s
departure to Switzerland
is imminent, this matter is urgent.
Ad urgency
[11]
Rule 6(12)(b) requires that
“
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this subrule, the applicant must set
forth
explicitly the circumstances which is averred render the matter
urgent
and the reasons why the applicant claims that applicant
could not be afforded substantial redress at a hearing in due course
(my emphasis).”
[12]
There are two elements to this. For one, the time frames in Rule 6
are abridged. This has
various implications about enabling the
Respondent to peruse the founding affidavit to enable them to file a
proper answering affidavit.
[13]
The second
element relates to the test that is laid down: whether the Applicant
will be able to seek substantial redress in due
course to protect his
rights.
[3]
It should be noted
that possible harm alone does not indicate urgency – the focus
is rather on the possibility of substantial
redress. This should be
distinguished from irreparable harm required for an interim
interdict. This question arises when considering
the merits.
[4]
[14]
The
Applicant must set out the facts in the founding affidavit to inform
the Respondent what to answer to on the issue of urgency,
and to
convince the court that it is urgent. The level of urgency as set out
in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture
Manufacturers)
,
[5]
in turn, will justify the degree of reduction in the timeframes. The
more urgent, the shorter the time periods.
[15]
The Second Applicant’s founding affidavit outlines why they
deem the matter urgent.
However, the Second Applicant’s
founding affidavit does not address the requirement of substantial
redress. For one, there
is also no clear indication why the Swiss
authorities will take an email from an unknown “Tom Shear”
seriously, written
in classic chain mail fashion, to prevent entry
into Switzerland, nor if receivers of the email likewise take it
seriously.
[16]
Moreover, the content of the email is very similar to the content of
an attorney’s
letter sent to the Respondents earlier that set
out the allegations of fraud and theft (amongst others). These are
also contained
in the court documents filled in the other pending
matter. As such, this information is already in the public domain. As
for the
alleged defamatory statements, substantial redress is
available in due course in the form of suing for defamation, for
instance.
Since substantial redress is available to the Applicants,
this matter is not urgent.
Order
[17]
I, therefore, make the following order:
1. The
application is struck from the roll, with costs.
WJ DU PLESSIS
Acting Judge of the High
Court
Counsel for the
Applicant:
Mr T P Krüger
SC
Instructed by:
Jordaan & Smit
Inc
For the for
Respondent:
Ms N Nortje
Instructed by:
Bornman Attorneys
Date of the
hearing:
04 July 2023
Date of judgment:
06 July 2022
[1]
Case
number 2023-49551 filed on 23 May 2023.
[2]
Annexure
FA13
repeated in FA26.
[3]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd [2011] ZAGPJHC 196; Mogalakwena Local Municipality
v Provincial
Executive Council, Limpopo and Others [2014] ZAGPPHC 400.
[4]
Chetty
v Chetty and Another (1362/20) [2020] ZAMPMHC 30 par 9.
[5]
1977
(4) SA 135
(W).