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[2022] ZAFSHC 130
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Open Space Media (Pty) Ltd v Mangaung Metropolitan Municipality (733/2022) [2022] ZAFSHC 130 (1 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 733/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:NO
5
May 2022
In
the matter between:
OPEN
SPACES MEDIA (PTY) LTD
Applicant
and
MANGAUNG
METROPOLITAN MUNICIPALITY
Respondent
CORAM:
AFRICA, AJ
DELIVERED
ON
: This judgment was handed
down electronically by circulation to the parties' legal
representatives by email. The date and
time for hand-down is deemed
to have been at 15h00 on 01 June 2022.
JUDGMENT
INTRODUCTION
[1]
This matter came before court for the first time by way of an Urgent
Application, in terms
of Rule 6(12) on Monday 21 February 2022 at
14h00. Applicant's heads of argument at paragraph 3 states that
"...Service by Sheriff was
effected on 21 February 2022 at 08h44"
[2]
On 21 February 2022, the Honourable
Justice Daniso, made an order in the following terms:
1.
Condoning the Applicants non-compliance with the requirements
prescribed in the Uniform
Rules pertaining to form, process and time
periods for service and permitting this application to be heard as
one of Urgency as
provided under Rule 6(12) of the Uniform Rules of
Court.
2.
A rule
nisi
is issued, which shall be returnable on Thursday 7 April 2022 at 9h30
or on such a date and time as the Court may determine, calling
upon
the Respondent to show cause, if any, why the following orders should
not be made final:
2.1
The Respondent is ordered and directed
to restore possession to the Applicant of 2 (two) outdoor advertising
signs or billboards
belonging to it, alternatively in its possession,
which were respectively located on Dr. Selemela Street, Bloemanda,
Bloemfontein
and Raymond Mhlaba Street (formerly Andries Pretorius
Street) Noordhoek, Bloemfontein, prior to being removed by Respondent
through
its officials or at their behest on or about 8 and 11
February 2022, respectively;
2.2
The Respondent is ordered and directed
to return the abovementioned outdoor advertising signs or billboards
to their original locations
and positions prior to being removed by
the Respondent's officials or at their behest, as aforesaid, and to
erect, install and
position them substantially the same manner they
had been prior to their removal, at Respondent's sole cost;
2.3
The Respondent must ensure compliance
with the above orders
within a period
of 48 (forty-eight) hours
after
receiving service of this order.
3.
The order in terms of prayer 2 above shall operate as an interim
order with immediate
effect, pending the return date.
4.
The Applicant (is granted) leave to supplement these papers as may be
necessary in
anticipation of the return date of the rule
nisi.
[3]
Prior
to the anticipated return date
[1]
,
the
Respondent served a Notice in terms of Rule 6 (12)(c) of the Uniform
Rules of Court for a Reconsideration of the Urgent order
granted on
21 February 2022, in the absence of the Respondent. The said
Application was set down for hearing on Friday the 11th
of March 2022
at 10h00.
[4]
On 11 March 2022, the honourable
Acting Justice Ramlal, granted an order
by
agreement.
in the following
terms:
1.
The Respondent will restore the display of the two Billboards with
its artwork into
the original position on or before
Friday
18th March 2022.
2.
The Applicant undertake to withdraw the Contempt of Court Application
set down for
14
th
March 2022 under the above mentioned case numbers.
3.
The Application for Reconsideration currently being heard by the
above Honourable Court
is postponed to the 7th of April 2022.
4.
On the 7
th
April 2022 the matter will be finalized on the pleadings before
court.
5.
Costs of today will be costs in the main Application.
6.
The contractor employed by the Respondent to restore the Billboards
will issue an indemnification
against the Applicant until 7th April
2022 for the re-erection of the signage.
[5]
On the 7th of April 2022. the matter
appeared before the Honourable Justice Daffue, who made an order in
the following terms by
Agreement:
1.
That the rule
nisi
is
extended and the application is postponed to the opposed roll of 5
May 2022. No order as to costs.
[6]
From the outset, it is prudent for this court to deal with the issue
raised by Counsel for the Applicant,
who argues that in light of
Judge Ramlal's order, the rule
nisi
granted has become moot as
the following questions begs answering.
[4.1]
What is the effect of Judge Ramlal's order;
[4.2]
Under what circumstances was the order made; and
[4.3]
Did that order deal with the rule
nisi
and the extension thereof.
[7]
In the matter of
Oosthuizen
v
Mijs
2009 (6) SA
266
(W) at 267E-269 I, it was stated as follows:
"A
court that
reconsiders
any
order in terms of this subrule should do so with the benefit not only
of argument on behalf of the party absent during the granting
of the
original order but also with the benefit of the facts contained in
the affidavits filed by all parties."
[2]
Also
in the matter of
The Reclamation
Group (Pty)(Ltd) v Smit,
the
following was stated:
'The
result of this is that the
reconsideration
needs
to be done on the basis of a set of circumstances quite different
from that under which the original
ex
parte
order
was obtained. The consequences of this are twofold: First, the issues
are to be reconsidered in light of the fact that both
sides of the
story are now before the court. Secondly, the execution of the
original order may have had the effect that those issues
are not
exactly the same as the issues the court had to deal with in the
original application"
[3]
[8]
It is a fact that in terms of the rule
nisi,
(with
the return date of 7 April), the Respondent was ordered and directed
to restore possession to the Applicant of the 2 (two)
outdoor
advertising signs or billboards to their original locations, within a
period of 48 (forty-eight) hours after receiving
service of the
order. Evidently,
the
respondent failed to comply, prompting the applicant to launch an
application for contempt of court proceedings.
On
the day
[4]
that the
reconsideration application had to be argued, the parties came to an
agreement, which was made an order of court. The
respondents were
ordered to restore the display of the two Billboards with its artwork
into its original position on or before
18 March 2022 (in compliance
with the rule
nist)
and
the applicant undertook to withdraw the contempt of court application
set down for 14 March 2022. The reconsideration application
was thus
postponed for hearing to 7 April 2022, which was also the return date
for the rule
nisi.
On
7 April the rule
nisi
was
extended, and postponed together with the
(reconsideration)
[5]
application,
to the opposed roll of 5 May 2022.
[9]
By then, the relief that was sought in this case was not final, but
merely interim. It may be corrected or reversed
at a later stage, and
is invariably granted
pendente lite.
The
rule
nisi
procedure must be considered in conjunction with the
provisions of Rule 6(12) (c). In the present matter, the respondents
still
had to show cause, why the rule
nisi
issued, should not
be made final. The argument raised on behalf of the applicant, that
the order of Judge Ramlal, renders the rule
nisi
moot, is
without merit, because that order was not definitive in respect of
the rule
nisi.
Judge Ramlal's order seeks to address by
agreement between the parties, the respondent's failure to comply the
with the rule
nisi,
giving the respondent an extended period,
within which to comply. Judge Ramlal's order is clearly still
interim. The respondent
also by then, had not been afforded an
opportunity to redress the imbalances, which was set in motion by the
rule
nisi.
The rule
nisi
by then was not confirmed nor
discharged.
[10]
Counsel for the respondent argued that the reconsideration
application can be seen as a form of anticipation of the Urgent
application or rule
nisi.
This court is of the view that the
rule
nisi
is not disjointed from the reconsideration as the
issues (urgent application) must be
reconsidered,
in light of
the fact that both sides of the story is now before court.
[11]
Counsel for the respondents assail the
Urgent application on the following grounds:
11.1
Lack of Urgency
11.2
Defective affidavit
11.3
Lack of
locus
standi
or non-joinder
[12]
On
behalf of the respondents it is argued
[6]
that on a close perusal of the founding affidavit, the applicant
fails to set out any grounds as to why the current application
was
brought on an extremely urgent basis, as applicant fails to provide
any documentation or facts to support and corroborate any
extreme
urgency in this matter. Further, applicant fails to provide any
detail of losses and prejudice which the applicant would
suffer in
the event that the urgent relief is not granted. The respondents deny
that any unlawful spoliation has taken place and
that applicant
should have taken legal steps as early as November 2021 to have
prevented this current application for spoliation.
Further, that the
applicant has delayed in taking any legal steps to prevent the
removal of the billboards, such as interdicting
the respondent from
removing same. Thus, is the urgency in this matter self-created.
[13]
In
assessing the objective facts, it is evident that as early as 18
November 2021
[7]
the applicant
received notice of compliance in terms of section 25(2) read with
section 12(2) of the By-law
[8]
regarding
the erection of the billboard structures and the display of
unauthorised signs on them. Therein, the applicant was requested
to
immediately cease to display the signs by removing them and the
billboard structures on which the signs are affixed. In the
event of
failure to comply within a period of 7 days, the municipality is
empowered to invoke the provisions of section 25 (4),
(6), (7) and
(8) of the By-law, entitling the municipality amongst other things,
to remove a sign without a court order authorising
it to do so.
[14]
In response hereto, an email was send
dated 25 November 2021, wherein on behalf of applicant, its right was
asserted to display
the said billboards, referencing a letter dated 9
September 2019, where KP Young Designers (Pty) (Ltd) was awarded a
contract to
commence marketing in various spaces for outdoor
advertising.
[15]
It is not in dispute that a further
notice was dispatched to the applicant, where the same issues
highlighted in the initial letter
were raised. It is a fact that the
billboards were removed on 8 and 11 February 2022, respectively.
Further correspondence was
addressed to the respondent in a letter
dated 14 February 2022, requiring an undertaking that the signs shall
be returned and erected
at its original position or failing which,
applicant will launch a
Mandament van
Spolie,
application. The said
application was filed on 18 February 2022 and served on the
respondent on 21 February 2022, set down for hearing
on an Urgent
basis, at 14h00, on the same day.
[16)
It is opportune at this stage of the judgment to pause in order to
address a bone of contention as raised by the applicant
that because
this matter was enrolled and entertained as one of urgency by Judge
Daniso, when the interim order was granted on
21 February 2022,
the
issue of urgency should not detain this court any further.
[17]
The general principle of our law, as I understand it, is that on the
return day of a rule
nisi,
the
court has the power and authority to consider all aspects of the
rule. In other words, the court considering the matter on the
return
day has an independent discretion to exercise and is not bound by the
finding of fact or law made by the court that granted
the interim
order.
The
issue of urgency was considered on the return day in the case of
Van
Wyk Von Ludwig and Hanekom Inc v Ferguson
[9]
:
"The
court which granted the provisional order also granted condonation
and permitted the applicant to proceed with the application
as a
matter of urgency on the basis of the allegations contained in
paragraph 10 of the founding affidavit and which are set out
above.
There is no reason for this Court to interfere with the discretion
exercised by that court in respect of condonation and
urgency."
In this respect, the court found that the respondent had skirted the
issue dealing with the important issues related
to urgency.
In
Fourie
v
Uys,
the
[10]
court held that:
"The
rule
nisi would
be discharged if there were insufficient
ground for granting the interim order and this in my view, includes
also insufficient grounds
for urgency."
[18]
The
basis for the principle
[11]
that on the return day, the court has the discretion to consider all
aspects of the interim order
as
well as urgency
,
was well and correctly summarised in the case of
Polyoak
(Pty) Ltd
v
Chemical
Workers Industrial Union and Others
[12]
[19]
It is on the basis of the above principle that this court decided to
examine the case of the applicant, and
I respectfully agree with
counsel for the respondent, that the issue of urgency can be
entertained at this level.
[20]
At the very least, by the
8th
of
February 2022,
when the first board
was removed, it should have been abundantly clear that the respondent
was not prepared to accept the assertions
made by the applicant to
their right to display the billboards in question, despite
communicating and informing respondent of the
following:
i.
A letter dated 9 September 2019,
confirming the awarding of a contract to KP Young Designers;
ii.
An agreement which applicant concluded
with the director of KP Young Designers dated 16 March 2020;
iii.
Further correspondence regarding the
matter on behalf of applicant and the municipality's GM: Legal
Services
[21]
By the 11th of February 2022, in the absence of any legal steps taken
by the applicant, the 2
nd
billboard is removed by respondent, as it was denied that applicant
was in peaceful and undisturbed possession of the relevant
billboards. One would assume, that upon learning of the 2nd removal,
applicant would have there and then taken serious steps to
launch an
urgent application as expeditiously as possible, to stop any further
harm or prejudice, but alas not. The presumption
that if an applicant
delays in filing its application, then the prejudice or harm being
suffered is not of such a serious nature,
in the present case is
well-founded.
[22]
Further
to this, as argued by the respondent,
[13]
the allegations with regard to urgency made by the applicant in its
founding affidavit contained in paragraphs 7.15, 7.16, 7,17,
7.18,
and 7.19 appears to be bald and unsubstantiated allegations.
[23]
It is for the reasons set out above
that the applicant's case should fail. essentially on the basis of
lack of urgency.
[24]
A
further ground raised in assailing the Urgent Application, is the
defective affidavit. In argument, on behalf of the applicant,
Counsel
requested this court not to follow an over technical approach in the
absence of any evidence that the deponent of the affidavit,
was not
the author thereof. Further, that the Absa Bank case
[14]
that this court was referred to dealt with the issue of prejudice
where it related to summary judgment and that dismissal on this
ground alone, will not only amount to a misdirection
but
a failure of justice.
It
is argued that this is a technical objection raised by the respondent
and that this court should at the very least afford the
applicant an
opportunity to remedy the defect.
[25]
Counsel
for the respondent hasten to point out that at paragraph 12 of the
Absa
Bank
case,
it reads that
"It
is a basic requirement of an affidavit that it must be signed by the
deponent in the presence of the commissioner of oaths"
[15]
Further,
that the applicant has known as far back as 8 March 2022 of the
defective affidavit, but failed to seize the opportunity
to remedy
the situation.
[26]
Indeed, in the
Absa Bank v
Botha
matter,
an objection was lodged in terms of Rule 30 of the Uniform Rules of
Court, to the use of the incorrect pronoun "he
or she" by
the commissioner of oaths when attesting a founding affidavit in a
summary judgment application.
[27]
In urgent applications the court or a judge may dispense with the
forms and service provided for in the Uniform
Rules and may dispose
of such matter at such time and place and in such manner and in
accordance with such procedure, which shall
as far as practicable be
in terms of the rules, as it deems fit. Such application must be
supported by an affidavit which sets
out explicitly the circumstances
which the applicant avers render the matter urgent and the reasons
why the applicant claims that
he or she could not be accorded
substantial redress at a hearing in due course. The court will
essentially be called upon to give
preference to the applicant to
prevent the prejudice and harm that may materialise or continue if
the respondent's behaviour complained
of, continues unabated
.
The speed with which the matter (urgent application) is dealt with
and the time of filing, should, of course, never compromise
the
matter and the quality of the papers filed at court
.
[28]
In the
Absa Bank v Botha
matter,
Kathree-Setiloane J, clearly and ultimately exercised her judicial
discretion in refusing to allow the affidavit which in
her view did
not comply with the Regulations for Commissioners of Oaths when
regard is had to paragraph 8 of the judgment:
"
... Subject to whether there has been substantial compliance with the
Regulations, the court has a discretion to refuse an
affidavit which
does not comply with the Regulations. Should a commissioner of oaths
not certify that the verifying affidavit in
a summary judgment
application had been sworn to or affirmed, the court will be
reluctant to apply the maxim
omnia praesumuntur rite essa acta
donec probetur in contrarium,
also known as the 'presumption of
regularity', for purposes of making the assumption that the document
had, in fact, been sworn
to (or affirmed) and signed in the presence
of the commissioner of oaths."
[29]
The commissioner will ask the deponent to
recite
the words pertaining to either the oath/affirmation
,
and then the regulation requires that 'the deponent
shall
sign the declaration in the presence of the Commissioner of Oaths'.
As is practice, the deponent's identity should be evidenced to the
commissioner by providing an acceptable identity document.
In
Gulyas
v Minister of Law and Order
[16]
Baker
J...
...
"equated
'in the presence
of to be analogous to
'within eyeshot'
. We submit that the reason for a commissioner
and the deponent to be within eyeshot of one another is for the
commissioner to ascertain
the identity of the deponent by examining
the identity document provided and comparing it to the deponent, and
to ensure that the
correct papers are properly deposed to". (my
emphasis)
[30]
As already stated above,
the speed
with which an Urgent matter is dealt with and the time of filing,
should, of course, never compromise the matter and the
quality of the
papers filed at court
. In
casu,
the words "I certify that the deponent has acknowledge and
understands the contents of this affidavit... ", clearly creates
the impression that the deponent was present when the oath was
administered. However, notably, the oath, refers to the pronouns
she
and her, no less than five times. These pronouns appear to have be
pre-typed,
as part of the affidavit, as it does not allow the commissioner the
choice of deleting either he/she, raising the question around
the
deponent's presence at the time of the commissioning of the
affidavit. The regulation requires that 'the deponent
shall
sign the declaration in the presence of the Commissioner of Oaths.
In the absence of any explanation for this inaccuracy of specifically
using the pronouns she and her on numerous times, under circumstances
where the deponent was allegedly present, this court in exercising
its judicial discretion;
Upholds the
ground of objection raised by the respondent in this regard.
[31]
Lack of
locus
standi
(non-joinder) is a further ground of objection raised, by the
respondent, as its argued that the applicant has failed to discharged
its
onus
on a balance of probabilities that the applicant who was allegedly
involved in a partnership with KP Young Designers (Pty)(Ltd),
were
jointly in peaceful and undisturbed possession of the billboards. In
the same vein, the court was referred to a written lease
agreement,
concluded between the KP Young Designer (the lessee) and the
respondent. It's the respondent's contention that the lessee,
not the
applicant, were authorised and entitled to erect and display the
billboards. The court will revert to this issue momentarily.
[32]
The Applicant at the onset of proceedings argued that the
requirements for spoliation were satisfied, in
that it was in
peaceful and undisturbed possession; but was unlawfully deprived of
such possession. However, during the hearing
of arguments, it was
conceded that the respondent's interpretation of section 25(4) of the
Mangaung Metropolitan Municipality Outdoor
Advertising By-law ("the
By-Law") is correct, but the applicant contends nonetheless that
the bone of contention remains
whether the provisions of section
25(4) have ousted the common law remedy of mandament of spolie?
[33]
This court was referred to the case
Ngqukumba
v Minister of Safety and security.
In
that matter, so the applicant argues, the constitutional court held
that for a remedy of spoliation, it matters not if a government
entity may be purporting to act under the colour of law, statutory or
otherwise. The real issue is whether it is properly acting
within the
law. If not, its actions are unlawful and a spoliation order may
follow in the circumstances.
It
is therefore still incumbent on this court to consider if section
25(4) does not operate in a manner that oust the mandament
van spolie
or operate as a self help mechanism by the respondent. In the
circumstances therefor, if this court finds that
section 25(4) oust
common law, then the rule
nisi
must be confirmed.
[34]
Counsel for the respondent argues that at no stage was the
constitutionality of section 25(4) challenged,
therefore the
provisions of section 25(4) stands. It is further argued that the
Ngqukumba
case
is irrelevant to this case, because the legislation the police relied
on in the
Ngqukumba
case,
never authorised the police to act without a court order, whereas
section 25(4) herein, specifically utilises the words:
"If
a person fails to comply with a notice served by the municipality on
him or her, the municipality may enter upon the land
upon which the
sign to which the notice relates is being displayed and remove,
confiscate and destroy the sign. For purpose of
enforcement of this
subsection, the Municipality is entitled to enter upon its own
property or private property to remove a sign
without a court
order.
[35]
Further,
in the matter of
Van
Rhyn
and
Others
NNO v
Fleurbaix
Farm
(Pty) Ltd
[17]
the
court held that:
"The
mandament van spolie is directed at restoring possession to a party
which has been unlawfully dispossessed. It is a robust
remedy
directed at restoring the status
quo ante,
irrespective of the
merits of any underlying contest concerning entitlement to possession
of the object or right in issue; peaceful
and undisturbed possession
of the thing concerned and the unlawful despoilment thereof are all
that an applicant for a mandament
van spolie has to show.
(Deprivation is unlawful if it takes place without due process of
law, or without a special legal right
to oust the possessor). The
underlying principle is expressed in the maxim
"spoliatus
ante omnia restituendus est'.
[36)
The applicant at paragraph 9.7 of the founding affidavit, submits
that the dispossession by the municipality was unlawful and
unconstitutional based on the applicable right(s) in the Bill of
Rights, which lends protection against self help and arbitrary
deprivation of property.
[37)
However, based on the concession made, it is commonplace that the
dispossession was neither arbitrary nor unlawful. It is correctly
argued on behalf of the respondent that in the absence of any
challenge to the constitutionality of the provision of section 25(4),
the said By-Law, withstands constitutional scrutiny. On what basis
then is this court expected to consider whether the operation
of
section 25(4) does not operate in a manner that oust the mandament of
spolie, thus operating as a self-help mechanism, by the
respondent?
It is the considered view of this court that the mandament of spolie
as a robust remedy directed at restoring the status
quo
ante
and a disincentive against self-help, is
not
ousted by the
operation of the provision of section 25(4) of the By-Law, under the
circumstances.
[38]
Reverting back to the issue of
locus
standi,
the respondent argues, referring to the
"agreement"
alluded to in paragraph 8.6 of the founding affidavit, that it is
vague in the following terms:
[38.1]
It fails to specify what agreement the applicant the applicant and
lessee entered into;
[38.2)
When the agreement was concluded;
[38.3)
The exact nature of the terms of the agreement; [38.4) The exact
rights that flowed from the said agreement.
[39]
In defence of applicant's asserted right
to display the billboards, it was stated at paragraph 8.7 of the
founding affidavit, that
the municipality's legal services
incorrectly characterized the nature of the applicant's relationship
with KP Young Designers
as one of
lessee
and sub-lessee,
whereas the true and
correct nature of the relationship between the two entities was that
of a
partnership.
[40]
Further
to this the respondent submits that the alleged agreement
[18]
with
the heading
"Contractor
Agreement"
is
irrelevant as applicant was obliged to make out its case in its
founding affidavit.
[41]
This
court clearly has difficulty in grasping what the true and correct
nature of the relationship between applicant and KP Young
Designers
Pty Ltd is. If it is accepted as appearing from the founding
affidavit, that a partnership existed, then the same questions
arises
as in respect of the
agreement
[19]
referred
to. What was the exact nature and terms of this partnership, which
applicant relies on in asserting his rights?
[42]
Therefore, if KP Young designers appears
to have a real and substantial interest in these proceedings, is
stands to reason that
KP Young designers Pty Ltd, at the very least,
should have been joined to these proceedings
.
Likewise, on this score, the application is rendered defective.
[43]
Very basically, the two requirements
that a dispossessed person needs to prove in order to succeed in
court, is firstly that there
was actual dispossession and that the
dispossession was unlawful denoting it was not done with consent; a
court order or authorizing
legislation. As it was conceded that
respondent's interpretation of section 25 of the By-law was correct,
in authorising the respondent
to remove the billboards without a
court order, this court finds that the respondent has shown cause why
the rule
nisi
should
not be made final.
[44]
In the result, the following order is
made:
[44.1]
The rule
nisi
is discharged with costs.
A.
AFRICA, AJ
APPEARANCES
:
COUNSEL
FOR THE APPLICANT:
Adv.
Mazibuko
Instructed
by: LG
Fixane Attorneys
COUNSEL
FOR THE RESPONDENT:
Adv. Ress
Instructed
by:
S
Suleman Attorneys
[1]
7 April 2021.
[2]
Oosthuizen v Mijs
2009 (6) SA 266
(W) at 267E-269 I.
[3]
The Reclamation Group (Pty)(Ltd) v Smit
2004 (1) SA 215
(SE) at 218
D-F.
[4]
11 March 2022.
[5]
My emphasis
[6]
Paragraph 5 of respondents' heads of argument
[7]
Page 92 Index and pagination
[8]
Mangaung Metropolitan Municipality Outdoor Advertising By-law
[9]
2001] JOL 7967
(C) at para 9.
[10]
1957
(2) SA 125
(C) at 129 A-F
[11]
"Many, but by no means all of these shortcomings are excusable
when an application is brought as a matter of urgency. In
the press
of circumstances, the court may be quick to grant interim relief
when it does so, when it does no more than oblige
the respondents to
refrain from doing what, in any event, they should not do. By the
time the return day arrives, however, the
dust is settled, and then
it becomes necessary for a court to consider whether a case has been
made out for the relief sought.
That an interim order has been
granted in no way prevents this process, for, being interlocutory,
it serves to dispose of none
of the issues that arise in the case.
The absence of opposition moreover, cannot cure deficiencies in the
papers. Being uncontroverted,
the allegations in the founding
affidavit can be accepted unless they are baseless or fanciful and
they must still embody evidence
on which the court can act. Failure
to oppose an application, in no way, constitutes an act of
submission to the relief sought.
On the contrary, respondents in an
application that makes out no case have a right to assume that the
court will arrive at this
conclusion without the aid of argument
from them. On the return day, in short, the court must be satisfied
that a proper case
has been made out for each facet of relief
sought."
[12]
(1999) 20 ILJ 392 (LC) at 394H-395B
[13]
Paragraph 26.9 respondents answering affidavit
[14]
Absa Bank Ltd vs Botha NO and Others 2013 Vol
5 SA 563
GNP
[15]
Absa Bank case supra
[16]
[1986] 4 All SA 357 (C)
[17]
2013 (5) SA 521 (WCC)
[18]
Annexure A4
[19]
paragraph 8.6 of the founding affidavit