Vaalharts Water Users Association t/a Vaalharts Water v Williams (1926/2020) [2021] ZANCHC 27 (2 July 2021)

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[2021] ZANCHC 27
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Vaalharts Water Users Association t/a Vaalharts Water v Williams (1926/2020) [2021] ZANCHC 27 (2 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
No:
1926/2020
Argued:
07 May 2021
Date
delivered:
02 July 2021
In
the matter between:
VAALHARTS
WATER USERS ASSOCIATION t/a
VAALHARTS
WATER                                                                                    APPLICANT
and
MOSIMANEGAPE
GODFREY
WILLIAMS                                                RESPONDENT
CORAM
STANTON AJ
JUDGMENT
STANTON,
AJ
INTRODUCTION:-
[1]
The applicant filed an urgent application and a rule nisi was granted
on 30 October 2020, with a return day of 04 December 2020,
in terms
of which the following interim orders were granted:-
1.1 The respondent,
and any person acting through him, is interdicted and prohibited from
entering and/or taking occupation of and/or
committing an offence in
terms of Section 1 of the Trespass Act, Act 6 of 1959 in respect of
the property known as 07 Henry Ferreira
Street, Jan Kempdorp;
1.2
The respondent is interdicted and prohibited from entering the
Applicant's offices situated at 882 Van
Riebeeck Avenue, Jan
Kempdorp;
1.3
The respondent is interdicted and prohibited from threatening,
assaulting, intimidating and/or contacting,
either personally or
telephonically, the following employees and/or tenants of the
applicant:-
1.3.1
Mr Daniél Jacobus van Eeden;
1.3.2
Mr Hugo van Wyk;
1.3.3
Mr David Goitsimodimo Coetzee; and
1.3.4
Mr Andries Johannes Jansen;
1.4
The respondent is interdicted and prohibited from entering the
following properties under the power and
control of the applicant:-
1.4. 1
The residence of Mr Andries Johannes Jansen situated
at 07 Henry
Ferreira Street, Jan Kempdorp;
1.42
The residence of Mr Daniäl Jacobus van Eeden situated
at 14 Henry
Ferreira Street, Jan Kempdorp; and
14.3
The residence of Mr David Goitsimodimo Coetzee situated at 05 Henry
Ferreira Street, Jan Kempdorp;
and
("the
properties')
1.5
The South African Police Service was directed and authorised to take
all reasonable and necessary steps
to give effect to the order.
[2]
The respondent, acting in person throughout, opposed the application
and filed
documents titled "Notice of Dispute" and
"Founding Dispute Affidavit." The respondent also
personally drafted
his heads of argument and appeared in person when
the application was argued before me.
[3]
On scrutiny, the respondent's defences can be distilled as follows:-
3.1 This application
was brought, despite a pending application between the applicant and
other respondents, including himself, issued
under case number
84/2020 in the Jan Kempdorp Magistrates Court ("the 84/2020
application");
3.2 This application
is an interference with the the 84/2020 application, contrary to
Section 165(3) of the Constitution of the Republic
of South Africa,
Act 108 of 1996 ("the Constitution");
3.3 The application
is racially motivated;
3.4 The applicant
failed to prove that the addresses in respect of which the relief are
sought are in existence;
3.5 The respondent
was merely acting as a representative of his community and thus he
cannot be interdicted in his personal capacity;
3.6 The applicant
failed to prove that incidents occurred, but is acting on fear for a
possible future incident; and
3.7 Sections 1(1)
and 1(2) of the Intimidation Act, Act 72 of 1982 were declared
unconstitutional.
APPLICABLE LAW:-
[4]
Section 1 of the Trespass Act, Act 6 of 1959 provides that:-
"Prohibition of
entry or presence upon land and entry of or presence in bui/dings in
certain circumstances. —
(1) Any person who
without the permission—
(a)
of the lawful occupier of any land or any building or part of a
building; or
(b)
of the owner or person in charge of any land or any building or part
of a building that is
not lawfully occupied by any person,
enters or is upon
such land or enters or is in such building or part of a building,
shall be guilty of an offence unless he has lawful
reason to enter or
be upon such land or enter or be in such building or pan of a
building.
[5]
It is trite that an applicant has to meet the following
requirements
to obtain a final interdict:-
5.1
A clear right;
5.2
An injury actually committed or reasonably apprehended; and
5.3
The absence of any other satisfactory remedy.
AD CLEAR RIGHT: -
[6]
According to the applicant, the respondent is not entitled, in terms
of Section 1 of
the Trespass Act, to enter and invade or to take
unlawful occupation of the properties under its control, and more
specifically 07
Henry Ferreira Street, Jan Kempdorp. In addition, the
respondent is not entitled to enter the applicant's offices situated
at 882
Van Riebeeck Avenue, Jan Kempdorp, or to intimidate and
threaten the employees of the applicant at their office or their
residential
dwellings. The applicant submits that it has a duty to
safeguard the interests of its employees and their families, residing
in houses
under the authority of the applicant, and to protect them,
their residences as well as the applicant's offices from unlawful
threats
and intimidation by the respondent.
[7]
The respondent, however,
argues that he should be entitled to enter the applicant's
office for
purposes of investigating employment and business opportunities.
[8]
It is, however, undisputed that the respondent is not an employee,
customer or tenant
of the applicant. The applicant accordingly
contends that the respondent has no right, consent or reason to enter
any of the properties
or the applicant's office.
AD INJURY ACTUALLY
COMMITTED OR REASONABLY APPREHENDED: -
[9]
According to the applicant the respondent has threatened and
intimidated its employees,
has exhibited extremely aggressive
behaviour and has come close to getting into physical altercations
with the applicant's employees
for quite some time, culminating in
the events in the office of Bezuidenhout on 26 September 2020, as
well as the events at 07 Henry
Ferreira Street on 29 October 2020.
The respondent does not deny the occurrence of these incidents, but
merely states that as no
complaint was filed at the South African
Police Services, the applicant has failed to prove these incidents.
[10]
The respondent argues that no injury
was actually committed and that the applicant should only
be entitled
to an inderdict when such injury occurs.
[11]
Injury, in the context of a final interdict is defined
by Harms
[1]
as follows:-
“
the
term “injury” should be understood to mean an infringement of the
right, which has been established, and resultant prejudice.
Prejudice
is not synonymous with damages and it is sufficient to establish
potential prejudice.”
[12]
The Court in the matter of
Free
State Gold Areas Ltd v Merriespruit (OFS) Gold Mining Co Ltd
clarified as follows:
[2]
"The
applicant for an interdict is not required to establish that, on a
balance of probabilities flowing from the undisputed
facts, that
injury will follow: he is on/y to show that it is reasonable to
apprehend that injury will result. "
THE ABSENCE OF ANY
OTHER SATISFACTORY REMEDY:-
[13]
The applicant submits that it has no
satisfactory alternative remedies at its disposal to stop the
unlawful
conduct of the respondent and that criminal proceedings
would also not constitute an effective alternative remedy.
[14]
In order to constitute an alternative remedy, it must:-
[3]
14.1
be adequate in the circumstances;
14.2
be ordinary and reasonable;
14.3
be a legal remedy; and
14.4
grant similar protection.
[15]
The Supreme Court of Appeal, in the matter of Hotz and Others v
University of Cape Town
[4]
,
stated the following in respect of alternative remedies in
applications for interdicts:-
"Firstly, the
purpose of an interdict is to put an end to conduct in breach of the
applicant's rights The applicant invokes the
aid of the court to
order the respondent to desist from such conduct and, if the
respondent does not comply, to enforce its order
by way of the
sanctions for contempt of court. Secondly, the existence of another
remedy will only prejudice the grant of an interdict
where the
proposed alternative will afford the injured party a remedy that
gives it similar protection to an interdict against the
injury that
is occurring or is apprehended. That is why, in many cases, a court
will weigh up whether an award of damages will be
adequate to
compensate the injured patty for any harm they may suffer. There may
also be instances where, in the case of a statutory
breach, a
criminal prosecution, in appropriate circumstances, will provide an
adequate remedy, but there are likely to be few instances
where that
will be the case. Thirdly, the alternative remedy must be a legal
remedy, that is, a remedy that a court may grant and,
if need be,
enforce, either by the process of execution or by way of proceedings
for contempt of court. The fact that one of the
parties, or even the
judge, may think that the problem would be better resolved, or can
ultimately only be resolved, by extra-curial
means, is not a
justification for refusing to grant an interdict."
9
THE RESPONDENT'S
DEFENCE:-
[16]
According to the
respondent, this application is contrary to the provisions of section
165 of the Constitution that provides as follows:-
"165 Judicial
authority —
(1)
The judicial authority of the Republic is vested in the courts.
(2)
The courts are independent and subject only to the Constitution and
the law, which they must app/y impartially
and without fear, favour
or prejudice.
(3)
No person or organ of state may interfere with the functioning of the
courts.”
[17]
Mr van Tonder argued that the respondent's submission is without
merit as the applicant is
entitled to approach this Court to
safeguard the properties under its control, as well as the safety of
its employees and to protect
its employees from threatening and
intimidating conduct, which could probably lead to violence if left
to continue unabated. The
respondent did not proffer any contrary
argument to this submission. I accordingly find that this defence is
unmeritorious.
[18]
The respondent
raises lis pendens as a defence to the application.
[19]
The
party wishing to raise a lis pendens bears the onus of alleging and
proving the following:
[5]
19.1
pending litigation between the same parties or their privies;
19.2
based on the same cause of action (the requirement of the same cause
of action is satisfied
if the other proceedings involve determination
of a question that is necessary for the determination of the present
case and substantially
determinative of its outcome); and
19.3
in respect of the same subject matter. (This does not mean that the
form of relief
claimed must be identical).
[20]
The matter in the 84/2020 application relates to a different
property, namely House B135 (corner
of Soetdoring & Maroela
Streets), Jan Kempdorp, which property was unlawfully occupied by the
respondents in that application
(of which the respondent in this
matter is but one of the respondents). This application relates to
residential properties in Henry
Ferreira Street, Jan Kempdorp,
occupied by employees of the Applicant, as well as the safety and
protection of the Applicant's employees
and offices.
[21]
This application therefore is distinct from the 84/2020 application
and the respondent
thus failed to discharge the onus of a
lis
pendens
.
[22]
According to the respondent, the application constitutes an
infringement of his
rights in terms of Section 22 of the Constitution
as he was merely acting as a representative of his community and
cannot be interdicted
in his personal capacity. He also argues that
the meetings with Mr van Eeden and Mr Bezuidenhout were conducted
with them in their
capacities as CEO of Vaalharts Water and CEO of
Department Water and Sanitation respectively and that he cannot be
interdicted from
meeting the representatives of Vaalharts Water and
the Department of Water and Sanitation.
[23]
Section 22 of the Constitution states that every citizen has the
right to choose their trade, occupation or
profession freely, does
not support this argument of the respondent. I accordingly find no
merit in this contention.
[24]
According to the respondent he does not know
where the properties are situated or that the properties
in fact
exist.
[25]
I find this argument untenable on the respondent's own version as he
inter a/ia states the following:-
"On the 29
October 20201 received a call from Mr Ntimang who reside at 07 Henry
Ferreira Street, GaldenskatLekwa-teemaneng in
the North West Province
informing me of the incident at his resident. Then after I was called
by the SAPS to ask on my where about.
I told them I was in Christiaan
but I will be back in an hour.
On my arrival in
Galdenskat I informed the Police of my return, they asked me to meet
them at Mr Ntimang's house where confusion of
addresses arised.
I arrived at 7 Henry
Ferreira Sgtreet in Galdenskat..."
[26]
Section 1 of the Intimidation Act, Act 72 of 1982 criminalise and
provides sanctions of a fine
not exceeding R40 000 or imprisonment
for a period not exceeding ten years or to both such fine and such
imprisonment in respect
of certain specific unlawful conduct. The
respondent's reliance on this section is in my view misplaced and
unsustainable.
EVALUATION
OF THE EVIDENCE:-
[27]
It is trite that where in proceedings on notice of motion disputes of
fact have arisen on the affidavit,
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.
[28]
The following test, as formulated in the case of
Room
Hire Co. (Pty.) Ltd v Jeppe Mansions (Pty) Ltd
[6]
by MURRAY, then AJP, is directly apposite to this application:-
"A
bare denial of applicant's material averments cannot be regarded as
sufficient to defeat applicant's right to secure relief
by motion
proceedings in appropriate cases. Enough must be stated by respondent
to enable the Court to conduct a preliminary examination...
and to
ascertain whether the denials are not fictitious intended merely to
delay the hearing.
"The
respondent's affidavits must at least disclose that there are
material issues in which there is a bona fide dispute of fact
capable
of being decided only after viva voce evidence has been heard. "
[29]
I am also mindful of the judgment in the matter of
Soffiantini v Mould
[7]
where
Price JP stated:-
"If
by a mere denial in general terms a respondent can defeat or delay an
applicant who comes to Court on motion, then motion
proceedings are
worthless, for a respondent can always defeat or delay a petitioner
by such a device.
It
is necessary to make a robust, common sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so, Justice can be defeated
or serious/y impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits.'
CONCLUSION:-
[30]
In my view, the respondent fails to pertinently reply to any of the
applicant's allegations and
merely made various "bald and hollow
denials of factual matter" without fully addressing the facts
that he allegedly disputes.
Applying the applicable principles, the
respondent's version stands to be rejected.
[31]
The applicant makes out a case for a final interdict and complies
with the required criteria in
respect of a clear right, an injury
actually committed or reasonably apprehended, and the absence of
similar protection by any other
ordinary remedy
COSTS:-
[32]
Mr van Tonder submitted that costs should follow the result, and in
view of the respondent's conduct,
that he should be ordered to pay
the costs on an attorney-and-client scale alternatively on such as
scale as this Court deems appropriate.
[33]
The respondent argued that he has no gainful employment and is
dependent on a
social grant to financially maintain himself. He
accordingly requested that no cost order should be granted in his
favour.
[34]
In view of the respondent's persistent opposition to this
application, I am not
persuaded that the costs should not follow the
event.
WHEREFORE THE
FOLLOWING ORDERS ARE MADE
:-
1.
The rule
nisi
is confirmed; and
2.
The respondent is ordered to pay the applicant's
costs on a party and
party scale.
STANTON,
A
ACTING
JUDGE,
HIGH
COURT, KIMBERLEY
On
behalf of the applicant:
ADV. A.G. VAN TONDER
(On instruction of
Haarhoffs Incorporated)
On
behalf of the respondent:
MR MG WILLIAMS IN PERSON
[1]
Harms: Civil Procedure in the Superior Courts at A5.4.
[2]
1961 (2) SA 505
(W) at 518A.
[3]
Harms: Civil Procedure in the Superior Courts at A5.5.
[4]
[2016] 4 All SA 723
(SCA) at paragraph [36].
[5]
Precedents of Pleadings, Harms, Lexisnexis, Ninth Edition [page
251].
[6]
1949 (3) S.A. 1155
(T) at page 1165.
[7]
1956 (4) SA 150
€ at 154 G-H.