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[2023] ZAFSHC 266
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Terblanche and Another v Oosthuizen (3670/2022) [2023] ZAFSHC 266 (4 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 3670/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
ELIZABETH
SOPHIA TERBLANCHE
1
st
Applicant
THE
TRUSTEES FOR THE TIME BEING
OF
THE BLOOMPLAATS TRUST, IT2[…]
2
nd
Applicant
And
JACOBUS
DU PLESSIS OOSTHUIZEN
Respondent
HEARD
ON:
24 MARCH 2023
HEADS
OF ARGUMENT DELIVERED ON 31 MARCH 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
T
his
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 16h30 on 4 July 2023.
[1]
The first applicant and the respondent are siblings who have been
embroiled in a long and acrimonious
litigation. The first
applicant is the trustee of the second applicant (The Trust) which
owns various farms including farm
Boomplaats, Wahla, Templemore and
Uitgunst while the respondent owns farm Gedagtenis and the remainder
of Tempelmore.
[2]
On 18 August 2022, the respondent as first applicant launched an
urgent application against the
applicant and second applicant as
first respondent and the Trust respectively in order to enforce his
right of way over the Boomplaats
route which both parties use to gain
access to the main road (S74 road) leading to the neighbouring towns
Ritz, Warden and Harrismith.
[3]
The application served before Molitsoane J. The parties subsequently
took the following order
by agreement:
“
1.
The application is enrolled
as a semi-urgent application in terms of Uniform Rule 6(12) and the
Applicants’ non-compliance
with the Uniform Rules of Court in
relation to form and service is condoned and/or dispensed with;
2.
The First and Second Respondents and/or their agent(s) shall permit
the Second Applicant
to utilise the road between the farm Gedagtenis,
district Reitz and the S74 road as marked on Annexure “
FA1”
to the Applicants’ founding affidavit between point “
A”
and point “
B”
(“the Boomplaats route”)
for the purpose of removing his existing crops which are in the
process of being harvested
from the farm Gedagtenis;
3.
In order to give effect to the order contained in paragraph 2 above,
the First and Second
Respondents and/or their agent(s) shall within
twenty-four (24) hours, by mutual arrangement with the Second
Applicant, provide
to the Second Applicant duplicate key(s) in
respect of any locks which are affixed to the gate(s) on the
Boomplaats route between
the farm Gedagtenis and the S74 road;
4.
The Second Applicant shall return the duplicate key(s) in respect of
any locks which are
affixed to the gate(s) on the Boomplaats route
between the farm Gedagtenis and the S74 road to the First and Second
Respondent
within three (3) days after the Applicants have given
effect to the obligations imposed on the Applicants in terms of
paragraph
5 infra;
5.
The First and/or Second Applicants shall be jointly and severally
liable to effect reasonable
repairs to the road surface of the
Boomplaats route in the event that damage is caused to such road
surface during the course of
the removal of existing crops which are
in the process of being harvested from the farm Gedagtens by the
Second Applicant, such
repairs to be effected within seven (7) days
after the Second Applicant has concluded the removal of his existing
crops which are
in the process of being harvested from the farm
Gedagtenis;
6.
The First and/or Second Applicants shall institute action against the
First and/or Second
Respondents within thirty (30) days of this order
wherein the First Applicant and/or Second Applicants shall move for
declaratory
relief that it be confirmed that the First Applicant has
acquired a limited real right / servitude over the Boomplaats route
by
way of acquisitive prescription and/or any other relief which the
First and/or Second Applicants may be entitled to institute;
7.
Without prejudice to the First Applicant’s rights to prove in
the aforesaid action
that the First Respondent is entitled to the
relief which he shall pray for in such action and without any waiver
of the First
Respondent’s rights which he may have in Law, the
First Applicant shall refrain, pending the finalisation of the action
referred
to in paragraph 5 above, from utilising the road between the
farm Gedagtenis, district Reitz and the S74 road as marked on
Annexure
“
FA1”
to the Applicants founding
affidavit between point “
A”
and point “
B”;
8.
The costs of this application shall be costs in the action to be
instituted. In the
event that such action is for whatever
reason not instituted within thirty (30) days from date of this
order, any party to these
proceedings shall be entitled to set the
issue of costs down for adjudication upon ten (10) days’ notice
to all other parties
to this application.”
[4]
It is the applicants’ case that the respondent has contravened
paragraph 7 of the said order
in that on 8 March 2023 the applicant
whilst in the company of her employee Mr Luis Nhampossa she observed
the respondent’s
vehicle parked on the Boomplaats route loading
wood onto his vehicle. The first applicant confronted the
respondent questioning
his presence there despite the court order.
The responded was adamant that there was nothing untoward about his
presence in that
area. He also threatened the first applicant,
insulted her and also drove into her when she tried to climb into her
motor vehicle
causing her an injury to her hip and right hand.
[1]
The
respondent
only left after the police called by the first applicant instructed
him to leave.
[5]
The first applicant explains that
it was not
the first time that she was subjected to the respondent’s
violent behaviour. Annexure “ET6” is a copy
of the first
two pages of the judgment of this court penned by Daffue, J with
Ramlal, AJ concurring in relation to the acrimonious
relationship
between the first applicant and the respondent in the appeal launched
by the respondent to set aside the protection
order the first
applicant had obtained against the respondent.
Based on these
reasons, the applicants seek an order that
the
respondent be called upon to show cause why he should not be:
“
a.
Committed to prison, for a period of 30 (thirty) days, for being in
contempt of paragraph 7 of
the Court Order made by Justice Molitsoane
on 18 August 2022;
b.
In the alternative to a. above, imposed a sentence of 30 (thirty)
days’ imprisonment
on condition that he does not make himself
(sic) guilty of contempt of the above stated Court Order again;
c.
Interdicted forthwith from threatening the first applicant, causing
emotional and /or physical
harm to the first applicant;
d.
The respondent be interdicted from attending upon the farm
Boomplaats, the Bloomplaats Route
and from being within 200 metres
from the first applicant
...”
[6]
A punitive cost order is also sought against the respondent.
[7]
The
existence of the court order and its
provisions is not disputed. The application is opposed on the grounds
that the application
is not urgent. Besides the fact that the
applicants delayed launching the application there is also no
explanation on what basis
is it averred that the applicants will not
be afforded substantial redress at a hearing in due course.
[8]
The respondent also denies having contravened the order because on
that day he was not on the
Boomplaats route. He explains that
Boomplaats route is situated in what is referred to
as
a corridor between the applicants’ farms Boomplaats and the
respondent’s Tempelmore farm. On the day of the incident
the
respondent was cutting wood with his employees on his farm Tempelmore
and since there was no enough space for his vehicle he
parked it just
outside the fence which is part of Boomplaats route. Whilst busy
cutting the wood the respondent noticed some burnt
trees lying close
by and he instructed his employees to cut them and load them in his
vehicle.
[9]
The respondent denies having assaulted the first applicant and states
that it is the first applicant
who approached him already aggressive,
swearing at him and accusing him for being on her land. She even
tried to assault him with
a stick and then went and stood his
vehicle’s path when he tried to drive off. She would move
even after he hooted
at her and when he moved his vehicle forward she
suddenly fell down and started screaming. He screamed back with
frustration when
he drove past he realized that she was not hurt at
all.
[10]
The police who arrived on the scene after being called by the first
applicant advised that to seek counsel
from their respective
attorneys and obtain protection orders.
[11] It
is for these reasons above, that the respondent asserts that he has
not contravened the court order and
has also not attacked or
assaulted the first applicant, the application must be dismissed with
costs.
[12] It
is a well-established principle that rule 6(12) of the Uniform rules
of court permits the abridgment of
the time periods contemplated in
the rules of court to aid litigants who cannot be afforded
substantial redress at a hearing in
due course if they were to wait
for the normal course laid down by the rules.
[13]
The applicants must first make a
proper
case to be heard on urgent basis and
explicitly
state the circumstances which render the matter urgent and the
reasons why the applicant would not be afforded redress
at a hearing
in due course in terms of rule 6 (12) (b) of the Uniform Rules of
this Court
[14]
According to the applicants, urgency is
premised on the two main events emanating from the conduct of the
respondent namely, the
contravention of the court order and the
assault on the first applicant. It is contended that the respondent’s
contemptuous
conduct clearly shows that he has no respect of the law
as a result if the application is not heard as one of urgency the
first
applicant would suffer irreparable harm. Every day that goes
by, the first applicant is at risk of being attacked and injured
again
by the respondent.
[15]
There has been a considerable inaction by the applicant in launching
these proceedings.
The incident relied upon
in both these instances occurred on 8 March 2023 the application was
launched on 14 March 2023 for hearing
on 23 March 2023 some three
weeks after the incident. Despite the extreme delay in launching the
application absolutely no attempt
has been made to explain how it
came about.
[16]
Urgency due to threat to safety and bodily integrity including
assault and emotional torments may justify
the invocation of rule
6(12) provided, it has been established on the asserted facts that if
the application is not heard earlier
any order that might later be
granted will by then no longer be capable of providing the first
applicant with the legal protection
she requires.
[2]
Irreparable harm does not create urgency.
[17]
The applicant’s lack of candour in explaining the extreme delay
in launching the application speaks
to the conclusion that the matter
is not urgent. I am not persuaded that the applicants cannot be
afforded substantial relief
in a hearing in due course. The
consequence of this conclusion would be to strike the matter off due
to lack of urgency however
based on the fact that the parties have
filed voluminous papers consisting of over 165 pages excluding their
written heads of argument
and also presented extensive arguments in
respect of the merits of the application I deem it prudent to also
determine the merits
of the application.
[18]
In considering whether the applicants have made out case for the
orders sought I take into account that the
requirements for contempt
of court are
the
existence of a court order; the respondent is aware of the order and
the non-compliance with the court order. Once these elements
are
established beyond a reasonable doubt wilfulness and
male
fides
will
be presumed and the evidentiary burden switches to the respondent to
establish a reasonable doubt that the non-compliance
was not wilful
and mala fide.
[3]
[19] In
this matter the existence of the court order and that the respondent
was aware of it is undisputed in
that regard, the applicants must
prove that the respondent has disobeyed the order beyond a reasonable
doubt.
[20]
The respondent’s affidavit raises genuine dispute of facts
worthy to be accepted for the determination
of the issues between the
parties. The respondent insists that he had only parked on the
portion of that route to collect
wood from his own farm Tempelmore.
He was not utilising the route to travel from his other farm
Gedagtenis to the S74 road as prohibited
by the court order. There
are also contradictory versions with regard to the circumstances
under which the first applicant sustained
the injuries recorded in
the J88 as according to the respondent it was the first applicant who
was aggressive she even blocked
his path of travel and although she
ultimately fell on the ground it was by her own design.
[21]
It is trite that:
‘
where,
in proceedings on notice of motion, disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such an
order.’
[4]
[22]
Motion proceedings are not geared for resolving factual disputes
arising from the papers. Due to the long
and troubled litigation
history of the parties the applicants should have foreseen that these
disputes would arise but chose to
proceed with Motion proceedings
confining themselves to have the prevailing disputes of facts decided
on the affidavits alone
and landed
themselves in an unenviable position of not being able to discharge
the onus laid on them.
[23]
Having regard to the
Plascon-Evans
principle I am not
persuaded that the applicants have discharged the onus of proving
that the respondent has contravened the court
order and that he has
conducted himself in a manner that is prejudicial to the first
applicant’s rights to warrant an interdictory
relief.
[25]
In the circumstances, I am not satisfied that the applicants
have
made out a case for the relief sought. The application fails, the
costs shall follow the result.
[26]
The judgment is late. As the
parties will remember that the matter was argued during the last week
of the term and at the conclusion
of the arguments leave was granted
to the parties to hand in their respective legal authorities which
they referred to in argument
together with their respective heads of
argument by 31 March 2023. The applicant’s heads of argument
and the legal authorities
were forwarded to my email on 4 April 2023.
On resumption of the next term secretaries were re-allocated, the
respondent’s
heads of argument which were apparently served on
the Registrar did not come to my attention until the last week of
this term on
15 June 2023 when my present secretary was auditing the
reserved judgment files. The delayed judgment is truly regretted
[27]
The following
order is made:
(1)
The application is dismissed with costs.
NS DANISO, J
APPEARANCES:
Counsel
on behalf of Applicants:
Adv.
N. Jagga
Instructed
by:
Kotze
Low Swanepoel Inc
C/O
McIntyre & van der Post
BLOEMFONTEIN
hanno@mcintyre.co.za
Counsel
on behalf of Respondent:
Adv.
J. Els
Instructed
by:
Phatsoane
Henney Attorneys
BLOEMFONTEIN
japiek@phinc.co.za
[1]
Annexure
“ET4” is a copy of the medical report “J88”
detailing the injuries sustained by the first applicant.
[2]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd
[2011]
ZAGPJHC
196.
[3]
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
[2006] ZASCA 52
; ;
2006
(4) SA 326
(SCA)
para
42;
Secretary,
Judicial Commission of Inquiry into allegations of state capture v
Zuma and Others
2021
(5) SA 327
(CC)
para
37
.
[4]
Plascon-Evans
Paints Limited
v
Van
Riebeeck Paints (Proprietary) Limited
[1984] ZASCA 51
;
1984
(3) SA 623
(AD)
at 634H-I