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[2022] ZAFSHC 232
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Hayes and Another v Du Plessis and Others (2683/2022) [2022] ZAFSHC 232 (7 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number:
2683/2022
In
the matter between:
CARMEN
HAYES First
Applicant
FRANCOIS
HAYES Second
Applicant
and
WYNAND
CORNe DU PLESSIS First
Respondent
RENe
DU PLESSIS Second
Respondent
JAN
HARM DU PLESSIS Third
Respodent
CORAM:
AFRICA, AJ
HEARD
ON: 18 AUGUST 2022
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 11h00 on 7 September 2022.
JUDGMENT
INTRODUCTION
[1]
There can be no dispute that in this matter the first applicant and
her brother have fallen prey to the plaque
of sibling conflict.
[1]
The applicants correctly agrees with the assertion made that the
prevalence of sibling rivalry and conflict has plagued humanity
since
the dawn of time.
[2]
The
applicants are seeking an order that the first, second and third
respondents be interdicted and restrained from:
[1.1] threatening and/or
intimidating and/or harassing the applicants and Benyahmin Hayes,
Samuel Hayes and James Hayes ("the
children") in any way or
form;
[1.2] demanding in any
way or form that the applicants and the children should vacate the
farm Klipfontein, district Tromsburg,
Free State Province;
[1.3] entering the
residential property of the applicants situated on the Farm
Klipfontein, district Trompsburg, Free State Province;
[1.4] directly or
indirectly making contact with the applicants and the children; and
[1.5] employing and/or
obtaining the assistance of any third parties to threaten, intimidate
or harass the applicants and children
or to take any of the actions
mentioned on paragraph 1.3 of this order.
[1.6] that the first,
second and third respondents be ordered, jointly and severally the
one paying the other to be absolved, to
pay the costs of the
application on a scale as between attorney and client.
[2]
At the onset of the hearing of the notice of motion, prayers 1.2 and
1.3 were abandoned.
BACKGROUND
[3]
The applicants argue that in as much as the issues in this matter
revolves around family, the court is enjoined
to look at the
objective facts giving rise to the matter at hand.
[4]
It is common cause that the first applicant (daughter) and the first
respondent (son) are the biological children
of the third respondent.
The second applicant is the third respondent's son in law and the
second respondent is his daughter in
law. The third respondent has
six (6) grandchildren in total.
[5]
From the outset, the third respondent contents that he shall not be
lured into taking sides between his children
as he wants no part of
any personal quarrels between the applicants and the first and second
respondents.
[3]
[6]
It is common cause that the applicants reside on the farm Klipfontein
in the Tromsburg district, together
with the third respondent and his
wife, albeit in separate dwellings. The first and second respondents
reside on the farm Blaauwfontein
in the Tromsburg district which is
directly adjacent to Klipfontein Farm.
[4]
Commercial farming activities are conducted on both farms, by the
first and third respondents.
[7]
During 2011, the applicants had discussions with the third respondent
to permanently relocate to Klipfontein
farm. This decision to move
was motivated by the fact that the applicants wanted to be closer to
their parents, who at that stage
were alone on the farm and that the
farm life and exposure to farming activities would be advantageous to
their children who are
home schooled. Also, their oldest son
Benyahmin suffers from cerebral palsy and in their view the farm life
would have been beneficial
to his health.
[5]
[8]
The third respondent agreed that the applicants and their children
could move to Klipfontein without any hesitation,
as he was excited
to have his daughter, son in law and grandchildren close to him.
[6]
[9]
Permission was granted for a portion of Klipfontein, which
encompasses six (6) hectares for the construction
of a family home
for the applicants and their children. Applicants contend that they
have also constructed other buildings on Klipfontein
farm, with their
own funds.
[10]
The third respondent submits that the applicants relocated to
Klipfontein knowing that the farm was one on which farming
activities
would be conducted. Further, that the very nature of activities on
the farm necessitates that the first respondent and/or
their workers
drive past the applicants' residence from time to time. This
submission was noted by the applicants.
[11]
Applicants however contend that their occupation of the property on
Klipfontein has caused great dissatisfaction to the
first and second
respondents, which led to various accusations and threats being made
towards the applicants and their children.
[7]
[12]
In respect of the third respondent it is argued that from a reading
of the papers there are no factual reference where
the third
respondent intimidated, threatened or harassed the applicants or
their children. Further, that there is no evidence to
support that
the third respondent demanded them to vacate the farm.
[13]
It is argued that the only case against the third respondent is
referenced in paragraphs 27 and 51 of the founding affidavit,
namely:
"the third
respondent's conduct in the circumstances are placing us in a
situation that allows that the first and second respondents'
feel
free to threaten and/or intimidate and/or harass us in that-The third
respondent incites the first and second respondents'
behaviour and
has made it clear to myself and the second applicant that he
considers the actions of the first and second respondents
justified"
[8]
(my emphasis)
[14]
It is argued that there is no evidence of what this 'conduct'
consists of and it boils down to sweeping generalisations.
Further,
that there is not a shred of evidence to show how the third
respondent incited or engaged with the first and second respondents
to provoke them to do anything unlawful against the applicants or
their children. In fact, it is argued that 'where and how' the
incitement took place is inconspicuous from the papers.
[15]
Paragraph 51 reads: "the threatening, intimidating and harassing
actions of the first and/or second respondents
with the assistance,
alternatively incitement of the third respondent are simply unlawful,
and it cannot be accepted." Again,
it is argued that the
statement is unqualified as nowhere in the papers does it state what
assistance or what incitement was made.
[16]
It is not in dispute that applicants case is premised on 2 incidents
dated 17 December 2021 and 28 March 2022 respectively
and that the
third respondent was not present when these incidents played out.
This appears from paragraphs 37 to 38 of third respondent's
answering
affidavit.
[17]
Further, the third respondent submits that the true factual position
with regard to the gunshots heard by the applicants
on 28 March 2022
is that he (third respondent) noticed porcupines in the cultivated
fields on Klipfontein farm, in the days preceding
28 March 2022. As a
result, good farming practice is to keep porcupine numbers under
control and to engage in the culling of porcupines
from time to time.
This has been done on Klipfontein farm at least on a biannual basis.
It is submitted that the first applicant
Is completely opposed to
hunting and has an issue with the culling of porcupines and will not
allow her sons to take part in it.
[18]
In reply, the applicants submit that for eight (8) years prior to 28
March 2022 there has been no gunshots fired and/or
hunting activities
conducted in close proximity of their residence by the first
respondent and/or his sons, on Klipfontein farm.
[9]
[19]
The third respondent submits that there is clearly a dispute of fact
regarding the aspect that the culling is done biannually.
To this
end, the confirmatory affidavit of Hein Van Rensburg is attached.
More specifically, the third respondent submits that
the children of
the first respondent as well as Hein van Rensburg know that when
using a firearm for hunting purposes, such firearm
is never to be
discharged in the direction of the homes situated on Klipfontein
farm.
[20]
This court was referred to the case of Stellenbosch Farmers' Winery
Ltd v Stellenvale Winery (Pty) Ltd
[10]
where the approach to factual disputes where a party moves for final
relief in motion proceedings was authoritatively stated that;
if the
material facts are in dispute and there is no request for the hearing
of oral evidence, a final order will only be granted
on notice of
motion if the facts as stated by the respondent together with the
facts as alleged by the applicant that are admitted
by the
respondent, justify such an order.
[21]
The contention is that the applicants have not disclosed any evidence
whatsoever to establish a link between the alleged
offending conduct
of the first and/or second respondents and failed in toto to:
1. Establish
that the third respondent has made himself guilty of conduct which
constitutes a breach of applicants rights;
2. Place any
facts before court which would objectively ground an apprehension
that the third respondent will, if the
interdict is not granted, make
himself guilty of conduct which constitutes a breach of applicants
rights.
[22]
Further that there exists no basis upon which the third respondent's
evidence can be stated to be far-fetched, untenable
or demonstrably
unworthy of credence.
[23]
Applicant's case is premised on two (2) incidents as stated above. It
is common cause that on the 17th of December 2021
a verbal
altercation erupted initially between the first applicant, her son,
the first and second respondent and later, the second
applicant. The
version that the first respondent threatened them with physical harm
and that the actions of the first and second
respondent was unlawful,
quarrelsome and aggressive, is denied by the first and second
respondent.
[24]
As a result of the aforementioned incident and threat to life, the
applicants instructed Attorneys to address a demand,
dated 15 March
2022, to the first and second respondent seeking them to desist with
their unlawful actions and seeking an undertaking
that they will not
in any way treat and/or intimidate and/or harass the applicants and
their children.
[11]
[25]
It is contended by the applicants that in response to the aforesaid
letter, the first and second respondents gave an
undertaking not to
threaten and/or harass and/or intimidate and/or defame applicants or
their children in any way manner or form.
[26]
The first and second respondents argue that this court must have
regard to the circumstances under which the 'undertaking'
was given,
namely: Paragraph 2 reads:
"From the onset we
wish to confirm that we have noted the averments as contained in
paragraphs 2.1 and 2.10 of your letter
under reply. We do not intend
to deal with each and every averment and our failure to do so should
not be construed as an admittance
of any averment not dealt with but
rather a denial".
Paragraph 4 reads:
"Due to the fact that the parties herein are family members
residing in close proximity to each other
and out of a desperate
attempt to avoid any unnecessary litigation... we hold instruction to
convey to your clients, as we hereby
do, that our clients will not
threaten and/or harass and/or intimidate and/or defame your clients
or their children in any way,
manner or form"
Paragraph 5 reads: "That
being said, we wish to inform that our instructions regarding the
purported incidents is in direct
contradiction to what has been
stated in your letter under reply. It is our instructions that your
clients and children were the
instigators and aggressors during the
incident of December 2021. Therefore, we accept that the aforesaid
"undertaking"
will also be afforded to our clients in
writing". (my emphasis)
[27]
It is argued that paragraph 4 is not an admission to what happened on
17 December 2021, instead it was simply an attempt
to calm the
situation which has arisen. Further, that in paragraph 5, the
'undertaking' is qualified when stated that "therefore
we accept
that the aforementioned undertaking will also be afforded to our
clients in writing".
[28]
Hence, it is argued that prior to the launching of this application
on the 12th of August 2022, the applicants knew that
it was the
version of the first and second respondents that it was in fact the
applicants who were the instigators and the aggressors
during the
December incident.
[29]
In this regard, the court must examine an alleged dispute of fact and
see whether there is a real dispute of fact which
cannot be
satisfactorily determined without the aid of oral evidence.
[12]
[30]
This court was referred to the case of Fakie NO v CCII Systems (Pty)
Ltd
[13]
where it was stated:
"Practice in this
regard has become considerably more robust, and rightly so. If it
were otherwise, most of the busy motion
courts in the country might
cease to function. But the limits remain, and however robust a court
may be inclined to be, a respondent's
version can be rejected in
motion proceedings only if it is 'fictitious' or so far-fetched and
clearly untenable that it can confidently
be said on the papers-
alone, that it is demonstrably and clearly unworthy of credence."
[31]
It is argued that the applicant's version in relation to the alleged
infringement of the applicant's rights and their
alleged apprehension
of further harm, is directly at odds with the incontestable evidence
of the first and second respondents and
also in particular, material
contradictions arise between the evidence proffered by the applicants
in their founding papers and
their evidence in reply. It is therefore
submitted that the court ought to find that the applicants version is
fictitious and so
far-fetched and clearly untenable that it can
confidently be said on the papers alone, that it is demonstrably and
clearly unworthy
of credence.
[14]
[32]
The applicants are of the view that the incident of 17 December 2021
was not an isolated incident. And, notwithstanding
the undertaking
given by the first and second respondent, they have continued with
their intimidating and/or threatening and/or
harassing actions and
have found alternative ways to instil fear upon the applicants in
order to have the applicants vacate the
property upon which they
reside on Klipfontein, in particular:
[15]
1. On 28 March 2022
around 22:00 the first respondent and his sons were hunting in close
proximity to the property where the
applicants and the children
reside and fired live ammunition in near proximity to the property;
2. The first
respondent and his sons drove their bakkie close to the applicants'
home and for no discernible reason
shone hunting spotlights on the
gate of the property and the house; and;
3. On 30
March 2022 around 23:22 the first respondent again visited
Klipfontein and again drove past the applicants'
house and shone the
spotlight on the property.
[33]
There are 3 requisites
[16]
for
the grant of a final interdict, all of which must be present:
1. A clear
right on the part of the applicant.
2. An injury
actually committed or reasonably apprehended.
3. The
absence of any other satisfactory remedy available to the applicant.
[34]
It has long been settled in our law that the granting of an interdict
is discretionary.
[17]
The
remedy of the interdict itself has been described as unusual.
[18]
This remedy is termed discretionary in the sense that a court may not
grant an interdict in circumstances where there is an alternative
remedy available to an applicant for an interdict and which may
satisfactorily safeguard the right sought to be protected. Put
differently the discretion of the court is bound up with the question
whether the rights of the party complaining can be protected
by an
alternative and ordinary remedy.
[35]
The applicants submit that the appropriate relief in the
circumstances includes an interdict to prohibit the infringement
of a
personal right, in that every person has the right to freedom and
security of the person, which includes the right to be free
from all
forms of violence from either public or private sources, and that if
such a right is threatened or infringed a court can
be approached for
appropriate relief.
[19]
[36]
The applicants referred this court to the case of Minister of Law and
Order and Others v Nordien and Another
[20]
where it was stated that an applicant seeking an interdict is not
required to establish on a balance of probabilities that flowing
from
the undisputed facts, injury will flow. All he has to show is that it
is reasonable to apprehend that injury will result.
The test for
apprehension is an objective one. The court must decide on the facts
presented whether there is any basis for the
entertainment of a
reasonable apprehension by the applicant.
[37]
A reasonable apprehension of injury is one which a reasonable man
might entertain on being faced with certain facts.
[21]
[38]
It is argued that what the applicants seek to do is to utilize the
undertaking, in showing that the incident of 28 March,
where
applicants knew the activities amounted to hunting, constitute a
breach of the undertaking, which now entitles them to the
interdict.
It is argued that any apprehension on the part of the applicants are
not reasonable and the allegation of a continual
or pattern of
harassment, is without merit. Further that the applicants still have
a remedy in the form of a claim for damages
in respect of the
December incident, which according to the first and second
respondent, will constitute nothing more than a past
invasion of
rights.
[39]
The first and second respondent contend that it is not in dispute
that they have not set foot on applicants' property
since 2012 and
that the applicants have not placed a scintilla of evidence before
court that any threats were made towards them,
or that they had
harassed or intimidated them until the incident of 17 December 2021.
[40]
The phrase "clear right" connotes a legal right that has
been sufficiently established on a balance of probabilities
and in
the leading case of Setloge/o, Innes CJ said:
"The requisites for
the right to claim an interdict are well-known; a clear right, injury
actually committed or reasonably
apprehended and the absence of
similar protection by any other ordinary remedy. Now the right of the
applicant is perfectly clear.
He is a possessor, he is in actual
possession of the land and holds it for himself. And he is entitled
to be protected against
any person who against his will forcibly
ousts him from such possession."
[22]
[41]
I pause to mention that apart from asserting the right to freedom and
security of person, specifically not to be exposed
to threats of
violence, the applicants argue that they have also established a
right to remain in occupation of the property in
which they reside on
Klipfontein farm. This right not only flows from the permission given
by the third respondent, which is common
cause between the parties
but also from the fact that the applicants have constructed the
dwelling and other buildings on Klipfontein
farm, from their own
funds.
[42]
Notwithstanding the protracted argument that the decision by the
third respondent to grant applicants permission to occupy
a portion
of the farm, is void by operation of law, I have no difficulty in
recognising the applicants' right as worthy of protection
in law.
Andalso accepting that the right had been adequately proved in
evidence. This plainly suggests that the source and the
nature of the
right are not material to the enquiry. What is important, instead, is
whether the applicant has a right recognised
in law and has
established its existence by way of acceptable evidence.
[43]
This court accords with the submission made by the applicants that
this court is not called upon to adjudicate the lawfulness
or
validity of applicants' occupation. All that is required in these
proceedings is whether the applicants have established a right
which
warrants protection from infringement, on a balance of probabilities.
[44]
Notwithstanding this existence of a clear right, the question remains
whether the applicants have placed before this
court facts which
would objectively ground an apprehension that the respondents will,
if not interdicted, make themselves guilty
of conduct which
constitutes a breach of applicants' rights.
[23]
[45]
It is an irrefutable fact that pursuant to the incident of 17
December 2021, the applicants waited three months before
addressing a
letter of demand and six months before lodging this application.
Questionably, applicants have failed to take any
steps to protect
itself from the infringement of their rights, promptly.
"A reasonable
apprehension of injury has been held to be one which a reasonable
person might entertain on being faced with
certain facts. The
applicant for an interdict is not required to establish that, on a
balance of probabilities flowing from the
undisputed facts, injury
will flow: he only has to show that it is reasonable to apprehend
that injury will result. However, the
test for apprehension is an
objective one. This means that, on the basis of the facts presented
to him, the Judge must decide whether
there is any basis for the
entertainment of a reasonable apprehension by the applicant."
[24]
[46]
Further, the assertion that the first and second respondent gave an
undertaking not to threaten and/or harass and/or
intimidate and/or
defame the applicants or their children, must be understood in
context of the statement that:
"Therefore, we
accept that the aforementioned "undertaking" will also be
afforded to our clients in writing."
[47]
Further the first applicant conceded that she knew that the gunshot
which was heard, pertained to hunting on the farm.
[25]
Further,
it is the version of the first applicant that whilst the incident
occurred, she managed to investigate from her balcony
what
transpired. I agree with the submission that this flies in the face
of the allegation that the applicants feared for their
lives.
[26]
[48]
Further the submission that on 30 March 2022, the first respondent
again drove past the house and shone a spotlight on it,
must also be
seen in context of the fact that when the applicants relocated to
Klipfontein farm, they knew very well that farming
activities were
conducted on the farm, which in the nature of things will necessitate
the first respondent and or the workers to
drive past applicants'
residence from time to time
[27]
or
even walk to a nearby water pump, more so in light of the proximity
of the dwellings of the applicants and the third respondent.
[49]
In the present matter, this court has no difficulty in holding that
the applicants have proved a clear right for purposes
of an
interdict, however, if the evidence is insufficient to establish any
link between the respondents and the actual or threatened
injury, the
apprehension of injury cannot be reasonable, more so in light of the
third respondent. Further that there was no application
for the
matter to be referred for oral evidence or trial, when it is evident
that a factual dispute exists regarding the events
which transpired
on 17 December 2021 and 28 March 2022. In conclusion it cannot be
said that the version of the respondents is
so far-fetched, untenable
or demonstrably unworthy of credence. The objective facts presented
simply do not lay any basis for the
entertainment of a reasonable
apprehension by the applicants.
[50]
This court being persuaded that in the absence of a well-grounded
apprehension of future harm, the words complained of
by the
applicants could found a claim for damages, still to be determined.
[51]
In this regards this court was referred to the case of Midi
Television (Pty)Ltd tla E-TV v Director of Public Prosecutions
(Western Cape)
[28]
where it
was stated that; where it is alleged, for example that a publication
is defamatory, but it has yet to be established that
the defamation
is unlawful, an award of damages is usually capable of vindicating
the right to reputation if it is later found
to have infringed, and
an anticipatory ban on publication will seldom be necessary for that
purpose.
[52]
It is the considered view of this court that the balance of
convenience favour the respondents and that applicants have
failed to
make out a case for the relief sought.
[53]
In the result, applicants case stands to be dismissed with costs.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR APPLICANTS: Adv.Sander
Instructed
by: Peyper
Attorneys
COUNSEL
FOR RESPONDENTS: Adv. Van der Merwe
Instructed
by: Stander
and Associates
[1]
Paragraph 2 of first and second respondent's heads of argument.
[2]
Paragraph 1 of first and second respondent's heads of argument.
[3]
Paragraph 11 of third respondent's answering affidavit.
[4]
Paragraph 16 of third respondent's answering affidavit.
[5]
Paragraphs 20-21of the founding affidavit.
[6]
Paragraph 30 of third respondent's answering affidavit.
[7]
Record, page 15, paragraphs 24-26.
[8]
Paragraph 27 of the founding affidavit
[9]
Record, page 312 paragraph 49.
[10]
1957 (4) SA 234
(C) at 235.
[11]
Paragraph 46 of the founding affidavit.
[12]
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290 D-G.
[13]
13
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at paragraph 56.
[14]
Paragraph 11 of first and second respondents' heads of argument.
[15]
Paragraph 18 of applicants" heads of argument.
[16]
Setloge)o v Setlogelo 1914 AD 221.
[17]
United Technical Equipment Co (Pty) Ltd v Johannesburg City Council
1987 (4) SA 343
(T); Burger v Rautenbach
1980 (4) SA 650
(C) and
Grundling v Beyers 1967 (2) SA 131 (W).
[18]
Transvaal Property Investment Co v SA Townships Mining and Finance
Corp 1938 TPD 521.
[19]
Paragraph 19 of applicants' heads of argument.
[20]
1987 (2) SA 894 (A).
[21]
See Setlogelo and Minister of Law and Order above.
[22]
At p227.
[23]
Paragraph 9.2 of third respondents heads of argument.
[24]
See Minister of Law and order v Nordien above at 896G-I.
[25]
Record page 22, Paragraph 49.2 of the founding affidavit.
[26]
Paragraph 36.3 of first and second respondents' heads of argument.
[27]
Paragraph 36 of third respondents heads of argument.
[28]
28
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) at paragraph 20