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2023
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[2023] ZAECMKHC 119
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Blue Crane Route Municipality v Storm and Others (1582/2023) [2023] ZAECMKHC 119 (24 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 1582/2023
In
the matter between:
BLUE
CRANE ROUTE MUNICIPALITY
APPLICANT
and
MANDILAKHE
MELVILLE STORM
FIRST
RESPONDENT
MELISIZWE
FANI
SECOND
RESPONDENT
SIMPHIWE
KHAKANA
THIRD
RESPONDENT
WAYNE
GOLIATH
FOURTH
RESPONDENT
SIYABONGA
MGXASHE
FIFTH
RESPONDENT
ALL
OTHER PERSONS ACTING
WITH
COMMON PURPOSE
WITH
THE ABOVE RESPONDENTS
SIXTH
RESPONDENTS
JUDGMENT
Rugunanan
J
[1]
The events occasioning the applicant’s
approach to this court occurred in Somerset East within the period 8
to 17 May 2023
and concerned alleged unlawful conduct by the
respondents when they entered the applicant’s offices,
threatened and intimidated
its staff to vacate their workplaces,
disrupted services (water, sanitation, electricity, and refuse
removal), threatened business
owners, dispersed litter in the
business centre, and engaged in unlawful gatherings and
demonstrations (the activities/disruptions).
[2]
The applicant’s founding affidavit gives the
idea that the respondents’ demand to have the mayor at Somerset
East removed
from office prompted the unlawful activities. On the
contrary, the opposing respondents (i.e. the first, fourth and fifth
respondents),
while denying their involvement in the activities
maintained that these stemmed largely from discontent within the
community concerning
the applicant’s lack of service delivery.
It is not in dispute that the activities ceased upon the interim
order being granted
– hence, at the time of argument for final
relief urgency was a non-issue.
[3]
The applicant is a statutorily recognised
municipal authority. It is mandated and obligated to provide
accessible services entailing
waste management control, refuse
removal, water and sanitation and electrical services for the
maintenance of public health and
safety to the community including
routine administrative services to the members of the general public.
Cookhouse and Somerset
East are among the towns within the
applicant’s municipal boundaries. The applicant’s offices
are located in Somerset
East where much of the disruptions occurred.
[4]
The first, second, third, fourth, and fifth
respondents are adult males whom the applicant implicates in the
events aforementioned.
The first respondent is a Resident of Somerset
East and is a ward committee member within the local community. The
fourth respondent,
also a resident of Somerset East, owns and
operates a driving school. The fifth respondent is similarly resident
in Somerset East
and is the owner of a construction business. The
second and third respondents’ residential and vocational
details are unknown.
The sixth respondents (presumably persons in
Somerset East or perhaps Cookhouse) are a collective of nondescript
community members
who are implicated in the unlawful activities on
the basis of a common purpose with the other respondents.
[5]
The applicant’s approach to this court,
initially on 22 May 2023, was for the express purpose of seeking
urgent interim relief
to restrain the respondents from participating
in, encouraging, facilitating and/or promoting the unlawful
activities within the
municipal boundaries of the applicant. A rule
nisi issued and after two extensions, both by agreement, on 13 June
2023 and 27 June
2023, the matter was heard on 27 July 2023 –
the applicant ostensibly seeking final relief but in argument
appearing to shift
ground by contending as an alternative to have the
matter referred to oral evidence.
[6]
The order of 13 June 2023 directed that costs be
reserved and the order of 27 July 2023 directed that costs are to be
costs in the
application.
[7]
Following the grant of the interim order the
first, fourth and fifth respondents entered their opposition and
filed opposing affidavits
in the matter (where these were late,
condonation was granted). They opposed any form of relief sought by
the applicant and sought
to have the application dismissed with
costs. The second, third and sixth respondents did not file notices
to oppose these proceedings.
[8]
With regard to the fourth respondent, the
applicant conceded a discharge of the rule nisi with costs up to and
including 23 June
2023. This issue will be dealt with later in this
judgment.
[9]
As against the first and fifth respondents the
applicant seeks a referral of the matter to oral evidence,
alternatively final relief
based on the court adopting a robust
approach to the matter.
[10]
Final relief is sought against the second, third,
and sixth respondents.
The case against the
first and fifth respondents
[11]
The starting point would be to consider the
referral to oral evidence. The founding affidavit deposed to by the
applicant’s
municipal manager, Mr Mzwandile Nini, as duly
appointed accounting officer identifies 8, 11, 12, 15, 16 and 17 May
2023 as the
days on which events occasioning the unlawful activities
did occur.
[12]
Relevant to the first and fifth respondents, the
crux of the case against them is set out by Mr Ntini as follows:
‘
22.
On Thursday, 11 May 2023, the first, fourth, fifth and unknown
members of the sixth respondents
arrived at the municipal officers in
Somerset East and in a threatening and intimidating manner forced the
applicant’s staff
to vacate their workstations and leave the
municipal offices.’
[13]
Elsewhere Mr Ntini goes on to say:
‘
34.
[O]n Monday 15 May 2023 the respondents threatened and intimidated
the applicant’s employees
in Somerset East and demand[ed] that
they stop working and vacate their offices.
35.
In order to deal with this issue, the Mayor Mr Bonisile Manxoweni of
the applicant was called
by Colonel Beje Station Commander of the
SAPS together with Mr Ayanda Gaji (Director: Technical Services) as
well as Mr Nigel Delo,
the Chief Financial Officer of the applicant,
arranged to meet with
inter alia
the first and fifth
respondents at or near the Town Hall in Somerset East.
36.
Members of the local police services were present at this meeting as
well.
37.
There were approximately twenty respondents present at the meeting
including the first and
fifth respondents.
38.
At the aforesaid meeting … the respondents were adamant that
the Mayor must vacate
his office. They stated further that unless the
Mayor leaves his office and resigns, they would cause the whole of
Somerset East
and Cookhouse will come to a standstill … that
no car would be allowed to leave the depot where municipal vehicles
are kept
and that no services would be able to operate. However, they
did indicate that they would allow essential services to continue.’
[14]
The first respondent denies being part of a group
of community members who participated in the activities mentioned in
the founding
affidavit. He denies that he was part of a group that
unlawfully gathered, protested or entered the applicant’s
property,
or that he threatened, intimidated or obstructed its
employees and/or local business owners, or disrupted services, or
damaged
property or caused any littering in the streets.
[15]
The fifth respondent similarly puts up a denial
along these terms.
[16]
Dealing specifically with events of 11 May 2023,
the first respondent states that he became aware that a group of
community members
were heading peacefully towards the traffic
department and learnt that they would be addressed by Mr Ntini.
[17]
His involvement in the events of that day is
summed up as follows:
‘
12.
I peacefully walked to the traffic department along with a group of
other dissatisfied members
of the community, as I have an interest in
what the officials intended to say.
13.
On the 11
th
of May 2023, Mr Ntini and the Speaker indeed
addressed a small group of people who walked peacefully and lawfully
to the traffic
department.’
[18]
Relevant to 15 May 2023 he states:
‘
19.
… I, together with a small group of people peacefully walked
to the Municipal Offices in
Nojoli Street seeking to be addressed by
the Mayor. Upon our arrival there I noticed police officers being
present, namely the
public order police services (POPS). Whilst we
were sitting on the pavement two unknown police officers approached
us and asked
us to move backwards and we cooperated and followed
their orders.
20.
[They] asked if we needed any help, we responded and said that we
want Mr Manxolweni to
address us.…
21.
Mr Manxolweni then arrived thereafter and some of the group of people
asked him when he
would vacate his office.
22.
In reply [he] said that it is only his organisation (the ANC) which
can remove him from
office.
23.
Thereafter be dispersed and I was not involved in any further
meetings or protests and I
cannot understand why I am even a
respondent in this matter.’
[19]
Elsewhere in the applicant’s founding
affidavit mention is made in general terms to the respondents
engaging in disruptions
in the business centre. While no specific
mention is made of the first respondent, he denies his involvement or
association with
the group save to state that he was in town to
withdraw cash but spent the rest of the day at home.
[20]
In summary, the fifth respondent states that on 11
May 2023 he drove to the traffic department because he has an
interest in the
improvement of service delivery in Somerset East. The
group of people whom Mr Ntini and the Speaker addressed were a
peaceful group,
and as for his presence the fifth respondent states:
‘
I
listened with interest to what they had to say.’
[21]
As for events of the day, he saw no protests but
overheard people saying that municipal employees should be prevented
from working.
He took the initiative of directing a letter to the ANC
offices recording the demand by the community that the mayor be
removed
from office. On 15 May 2023 he presented himself at the
applicant’s offices to submit a tender but noticed that the
offices
were closed. A group of people were present and were
enquiring about when the mayor would vacate his office. The mayor’s
response was that it is only his organisation (the ANC) that can
remove him from office. For the rest, the fifth respondent maintained
that he was not involved in any further meetings or group activities.
[22]
On 17 May 2023 the fifth respondent maintains that
he left Somerset East in the early hours of the morning to attend a
meeting in
Adelaide – the meeting concerned renewable energy
projects on local wind farms. The meeting commenced at approximately
10h00.
Proof of his attendance in the form of an extract from a
signed register is attached to his answering affidavit. When he
returned
to Somerset East later the afternoon he noticed that litter
was strewn in the streets. No protesters were present and he
maintained
that he was not involved in any protest action.
[23]
In reply, Mr Nini disputes the versions of the
first and fifth respondents essentially on the basis that they were
active participants
on the days in question. In placing store on a
sequence of confirmatory affidavits by Mr Manxoweni, Mr Gaji, and Mr
Delo, Mr Nini
contends that:
‘
11.
… [They] can all confirm that the first respondent was an
active participant, particularly
in the meeting on Monday, 15 May
2023, and in trying to remove the applicant’s staff from their
workstations.’
and,
‘
24.
… [They] can all confirm that the fifth respondent was an
active participant, particularly
in the meeting on Monday, 15 May
2023, and in trying to remove the applicant’s staff from their
workstations.’
[24]
Although
confirmatory affidavits are attached
[1]
,
in each instance the deponent to the confirmatory affidavit merely
states that he confirms the replying affidavit insofar as it
pertains
to him. He does so without further elaboration and notably without
specific reference to the first and fifth respondents.
The
confirmatory affidavits offer no detail of how the first and the
fifth respondents had committed or threatened to commit the
alleged
unlawful activities complained of.
[25]
While
courts have taken the view that confirmatory affidavits may at times
have their place, this by and large, has been condemned
as ‘a
slothful means of placing evidence before a court which is entitled
to expect that the actual witnesses to an event
deposes to the
facts’.
[2]
In
circumstances where several individuals are said to have witnessed
the activities complained of it might reasonably be expected
of them
to substantiate detail of their personal observations. The applicant
argued that this is what the maker of each confirmatory
affidavit
did.
[26]
I disagree.
[27]
The argument is at odds with what Mr Nini states
in the founding affidavit at paragraphs 11 and 24 which have been
quoted above.
Where Mr Nini pertinently states that these persons can
confirm the involvement of the first and
fifth
respondents, then that is what one would have expected them to have
said – in which event detail ought to have been
tendered
regarding the conduct of the respondents mentioned and their alleged
participation in the events with which they are said
to have
associated themselves.
[28]
For that reason I am of the view that there are
insufficient facts in the applicant’s founding papers to
substantiate the
first and fifth respondent’s alleged unlawful
conduct. Furthermore, and for reasons already dealt with, the
confirmatory
affidavits are of no assistance.
[29]
The first respondent and the fifth respondent each
contended that his presence on the days in question was passive. This
must be
evaluated against the following considerations: The first
respondent is a community ward councillor who has a genuine concern
about
the applicant’s lack of service delivery and in its
failure to maintain infrastructure that would foster the growth of
local
businesses and the community in general. The fourth respondent
is a local businessman. By his own admission he was (during 2022)
part of a group of dissatisfied community members who voiced concerns
about service delivery issues. His involvement became curtailed
because it impacted negatively against his business interests. The
fifth respondent is also a businessman. His sentiment is that
the
applicant can do better to provide services that would be conducive
for small businesses to prosper.
[30]
It is inconceivable (given, I emphasise, the
presentation of the applicant’s papers in the circumstances of
this matter) that
persons of standing with vested interests in the
community would present themselves and conduct themselves in the
manner alleged
by the applicant. The applicant would have this court
infer that the mere presence of these respondents (as well as the
fifth respondent
having penned a letter of dissatisfaction)
translates to the conclusion that they were engaged in the activities
complained of.
There is no credible version to prove that the first
and fifth respondents were involved in the incidents/activities
occasioning
the applicant’s complaints and harm suffered to
justify final relief.
[31]
It
is my view that the present state of the applicant’s papers
rendered a dispute of fact reasonably foreseeable
[3]
as regards the first and fifth respondents’ presence and
alleged involvement. To suggest, as is was in argument, that
their involvement was one of degree is speculative. The applicant had
to make out a clear case that the first and fifth respondents
were
involved in the activities mentioned.
[32]
It did not do so.
[33]
A referral to oral evidence would be a mere
fishing expedition.
[34]
This
brings me to the crisp issue of the approach to be adopted in dealing
with the matter. It was determined decades ago that a
court should
not allow a respondent to raise ‘fictitious’ disputes of
fact to delay the hearing of the matter or to
deny the applicant its
order. There had to be ‘a
bona
fide
dispute
of fact on a material matter’. This means that an
uncreditworthy denial or a palpably implausible version, can be
rejected out of hand without recourse to oral evidence.
In
Plascon
Evans-Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[4]
the
ambit of uncreditworthy denials was extended to encompass not merely
those that fail to raise a real, genuine or
bona
fide
dispute
of fact but also allegations or denials that are so farfetched or
clearly untenable that the court is justified in rejecting
them
merely on the papers.
[5]
[35]
In argument the applicant submitted that the
versions presented by the first and fifth respondents did not create
a
bona fide
dispute
of fact for the reason that they placed themselves at the scene of
events on 11 and 15 May 2023. Their denials are implausible
and it
was urged that the court should adopt a robust approach in rejecting
their respective versions.
[36]
The
so-called ‘robust, common-sense, approach’ was adopted in
cases such as
Soffiantini
v Mould
[6]
in
relation to the resolution of disputed issues on affidavit. The
approach is usually employed in a situation where a respondent
contents himself with bald and hollow denials of factual matter
confronting him.
[37]
The present is not such a
case where the first and fifth respondents have merely been content
to deny what is said about them in
the applicant’s papers. I am
satisfied that they have seriously and unambiguously addressed the
issues confronting them,
that they conscientiously justified their
presence on the days in question and vindicated themselves of the
conduct which the applicant
attributes to them.
[38]
On the other hand the applicant’s version in
reply – supported as it is by inadequate confirmatory
affidavits –
does not raise a substantive rebuttal to the first
and fifth’s respondents allegations concerning to their conduct
and whereabouts
on 11, 15 and for that matter, 12 and 17 May 2023. I
am not satisfied that the applicant’s version pertaining
specifically
to the involvement of the first and fifth respondents
has any inherent credibility.
The case against the
fourth respondent
[39]
This
brings me to the applicant’s case against the fourth
respondent. The only occasion when specific reference is made to
him
is 11 May 2023. In all circumstances pertaining to the events of 12,
15, 16 and 17 May 2023, Mr Nini merely makes general reference
to
‘the respondents’. While imputing unlawful conduct to the
group, Mr Nini’s suggestion by inference is that
the fourth
respondent
[7]
was included among
them.
[40]
In response to his alleged involvement in the
events of 11 May 2023 the fourth respondent states that he arrived at
the traffic
department that morning at about 08h49 because he booked
out his truck to a client who was scheduled to undergo a Code 10
driver’s
licence test. The client successfully passed the test
and was awarded the licence. The booking confirmation certificate
from the
traffic department is attached to the fourth respondent’s
opposing affidavit.
[41]
The fourth respondent also goes on to relate that
at about 09h15 he noticed a large group of people arriving at the
traffic department.
They threatened to bring the department to a
standstill. He listened to Mr Nini and the Speaker address the group
but due to focussing
on his own business affairs he did not associate
himself with the group. Because of the threat by the crowd, the
fourth respondent’s
booking with a second client at about 12h00
noon that day was cancelled. The booking confirmation certificate
from the traffic
department is also attached as proof of the client’s
Code 10 driver’s licence test scheduled for that day.
[42]
For the remainder of what is alleged in the
founding affidavit the fourth respondent states:
‘
23.
I was not part of any protests on any of the dates mentioned in the
applicant’s founding
affidavit and I challenge the applicant to
provide proof that I was indeed part of the interdicted protestors.’
[43]
Concerning events of 12, 15, 16 and 17 May 2023,
where Mr Nini makes a generalised reference to ‘the
respondents’ and
their threats, the fourth respondent makes the
following statement:
‘
53.
I cannot meaningfully respond to these allegations as I was not one
of the protesters who disrupted
services and businesses …’
[44]
The fourth respondent’s denial of the
allegations against him and specifically of the events that occurred
on 11 May 2023
leaves it open to question Mr Nini’s professed
belief in the fourth respondent’s involvement in the events of
that
day. Indeed, Mr Nini’s ambivalence is conveyed by his
sentiment that he was ‘confused and disappointed’ as to
the fourth respondent’s presence among the crowd.
[45]
This observation I make is also augmented by Mr
Nini’s disclosure:
‘
17.
[T]he applicant’s attorneys addressed an email to the fourth
respondent’s attorney
on 29 May 2023 after notice of opposition
was delivered, inviting the fourth respondent’s attorney to
engage in a discussion
on whether the parties could perhaps reach a
settlement of the matter, without the fourth and /or fifth respondent
being required
to deliver an answering affidavit. A copy of this
email is annexed hereto marked ‘A’. Unfortunately, the
fourth and
fifth respondents’ attorney did not respond to this
request, and instead submitted to the answering affidavits.’
[46]
This
is certainly an odd stance for the applicant when under the
apprehension of imminent harm which – in seeking the relief
it
claims– forms the basis of its cause of action. Moreover, that
Mr Nini entertained uncertainty is fortified by the applicant’s
disinclination to obtain final relief against the fourth respondent
(parenthetically, a similar request as mentioned in the above
extract
from Mr Nini’s affidavit was also made in respect of the first
respondent). I have no hesitation is saying that Mr
Nini’s
uncertainty, throws doubt on his perception of the involvement of
first, fourth and fifth respondents. It is trite
that an interdict
will be refused if there is doubt as to precisely who is responsible
for the alleged offending conduct.
[8]
In the circumstances I cannot be satisfied that the founding
affidavit is inherently credible in its narrative of the involvement
of these respondents. For reasons already traversed, the confirmatory
affidavits are to no avail.
The case against the
second, third, and sixth respondents
[47]
None of these respondents have filed opposing
papers in these proceedings. The second and third respondents were
among a group of
persons who entered the applicant’s offices on
8 May 2023. Mr Nini states that he was able to identify them. While
not referring
to them specifically, Mr Nini refers to the respondents
as a collective regarding the events of 11, 12, 15, 16 and 17 May
2023.
In the absence of any opposition or submissions made on behalf
of these respondents, the case in support of interim relief against
them has not been rebutted and it follows that the rule nisi
previously issued must be confirmed.
Conclusion and costs
[48]
The award of costs proceeds from two basic
principles: the first is that the award is in the discretion of the
presiding judicial
officer, and the second is that the successful
party should, as a general rule, be awarded its costs. The applicant
was successful
against the second, third and sixth respondents.
[49]
The first, fourth and fifth respondents were
successful in discharging the rule nisi against them. For that reason
the general rule
does not favour the applicant. They are awarded the
costs of these proceedings including those attendant on the order of
27 June
2023.
[50]
None of the parties addressed me on the reserved
costs of 13 June 2023. Accordingly I make no order in respect
thereof.
[51]
Much was made in argument for the applicant that
the costs of the fourth respondent be limited to 23 June 2023. The
fact of the
matter is that a purported withdrawal (assuming that 23
June 2023 is the correct date) ought to have been done properly in
accordance
with the uniform rules of court. The applicant’s
argument does not read persuasively with me.
[52]
In the result I make the following order:
1.
The referral to oral evidence is refused.
2.
The rule nisi issued on 22 May 2023 is discharged
as against the first, fourth and fifth respondents.
3.
The applicant shall pay the costs as between party
and party of the first, fourth and fifth respondents – such
costs to include
those attendant on the order of 27 June 2023.
4.
The first, fourth and fifth respondents shall pay
their own costs in relation to their condonation applications.
5.
The rule nisi issued on 22 May 2023 is confirmed
against the second, third, and sixth respondents.
6.
The second, third, and sixth respondents, jointly
and severally, the one paying the other/s is to be absolved shall pay
the applicant’s
costs of the application as between party and
party.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicant:
A
C Moorehouse
, Instructed by Pagdens c/o Cloete & Company,
Makhanda (Ref: L Jolobe)
For
the First, Fourth and Fifth Respondents:
C
G T Cordell
, Instructed by Wheeldon Rushmere & Cole,
Makhanda (Ref: C Keese)
Date
heard:
27
July 2023
Date
delivered:
24
October 2023
[1]
The applicant filed two sets of replying affidavits and in the
aggregate the number of confirmatory affidavits completes the
sequence.
[2]
Kalil v
Mangaung Municipality
2014 (5) SA 123
(SCA) 137B.
[3]
It is well established in our law that an application may be
dismissed with costs when the applicant should have realised when
launching the application and that a serious dispute of fact was
bound to develop. See
Amandla
GCF Construction CC v Tresso Developments (Pty) Ltd and Another
[2023] ZAWCHC 209
para 10 and the authorities referred in the
footnote thereto.
[4]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD at 634E-635C.
[5]
Fakie
NO v CII Systems (Pty) Ltd
2006
(4) 326 para 55.
[6]
1956 (4) SA 150 (E).
[7]
And presumably, the others.
[8]
See
Prinsloo
v Ned Hervormde or Gereformeerde Church
(1890) 3 SAR 220 referred to in Van Loggerenberg, Superior Court
Practice fn1 at D6-7 [Original Service, 2015].