About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2021
>>
[2021] ZAECELLC 23
|
|
Sherpa Trade & Invest 39 (Pty) Ltd v Nkukhwana and Others (834/2021) [2021] ZAECELLC 23 (9 September 2021)
IN THE
HIGH COURT OF SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL DIVISION
CASE
NO:
834/2021
Date
heard
:
26
August 2021
Date
delivered
:
09
September 2021
In the
matter between:
SHERPA
TRADE & INVEST 39 (PTY) LTD
Applicant
and
TEMBA
NKUKHWANA
First
Respondent
NOLUNDI
NKUKHWANA
Second
Respondent
WANDA
BRENDA DAYILE
Third
Respondent
VUYISWA
SIGAJI
Fourth
Respondent
ZAMEKA
SOGCWAYI
Fifth
Respondent
BABALWA
ZWENI
Sixth
Respondent
TANDEKILE
NELISA MAKOSI
Seventh
Respondent
ZIZO
ZAULA
Eighth
Respondent
NOMPUMELEO
LERATO TSHONGWENI
Ninth
Respondent
SIVUYILE
RAMNCWANA
Tenth
Respondent
NOKUBONGA
NOQOKO
Eleventh
Respondent
MASIBULELE
THAKATHA
Twelfth
Respondent
LINDIWE
MANYIKA
Thirteenth
Respondent
SIYABULELA
MANYIKA
Fourteenth
Respondent
ANDILE
NJENGA
Fifteenth
Respondent
ABONGILE
NJENGA
Sixteenth
Respondent
ZINGISA
NANDIPHA MKULISI
Seventeenth
Respondent
TEMBAKAZI
NGXENGWENI
Eighteenth
Respondent
MBUYISELI
NGEMNTU
Nineteenth
Respondent
TANDOKAZI
NGEMNTU
Twentieth
Respondent
JUDGMENT
LOWE,
J
INTRODUCTION
[1]
On
1 July 2021 an urgent application was launched in this matter and by
way of a Judge’s directive was enrolled to be heard
on Tuesday,
6 July 2021.
[2]
It
seems, however, that in fact Respondents were given until 9 July 2021
to oppose, failing which the matter would proceed on 13
July 2021.
[3]
Further,
Fourth, Sixth, Eighth to Twentieth Respondents opposed by giving
notice of intention to do so.
[4]
At
the hearing before me Ms Nxazonke-Mashiya appeared for Fourth, Sixth,
Eighth to Seventeenth, Nineteenth and Twentieth Respondents.
[5]
The
remaining Respondents gave no instruction to oppose.
[6]
On
13 July 2021 the matter was heard on the unopposed roll, terms and
time lines being agreed for filing of papers and an order
issued
accordingly, the matter postponed to the opposed roll on 29 July
2021, costs in the cause.
[7]
On
27 July 2021 a rule
nisi
issued
returnable on 26 August 2021 as follows, costs reserved:
“
IT IS ORDERED THAT:
1.
The
applicant’s non-compliance with the normal procedures, form and
time frames for instituting this application in terms
of Rule 6 of
the Rules of this Honourable Court be condoned and the applicant be
granted leave to bring this application as a matter
of urgency in
terms of Rule 6(12)(a);
2.
A
rule nisi do issue calling upon the
First
to Twentieth Respondents
to
show cause, if any, why a final order in the following terms should
not be made:
2.1
That
the First to Twentieth respondents immediately restore peaceful and
undisturbed possession and control of Erf 2368 East London,
Bengal
Road (‘the premises’) to the applicant, it employees and
its agents; with such possession and control to include
unfettered
access to the premises.
2.2
That
the first to twentieth respondents be interdicted and restrained
from:
2.2.1
Interfering
in any way whatsoever with the activities, and/or the administration
and/or business of the applicant at the premises;
2.2.2
Intimidating
and/or threatening and/or harassing and/or causing violence and/or
threatening to cause violence to any worker and/or
employee and/or
official and/or supplier and/or agent and/or sub-contractor and/or
employee of any supplier and/or sub-contractor
of the applicant;
2.2.3
Causing
any damages and/or threatening to case any damage to any property of
the applicant, any property or possession of any worker
and/or
employee and/or official and/or supplier and/or sub-contractor and/or
employee of any supplier and/or sub-contractor of
the applicant;
2.2.4
Encouraging
violence against any employee and/or official and/or supplier and/or
sub-contractor and/or employee of any supplier
and/or sub-contractor
of the applicant at the premises;
2.2.5
Blocking
and/or preventing any vehicle and/or truck and/or plant of the
applicant and/or any agent of the applicant and/or any sub-contractor
of the applicant from travelling on any road in the premises or
entering into the premises;
2.2.6
Being
unlawfully on any of the sites on the premises which are owned and/or
occupied by the applicant and/or its sub-contractors;
and
2.2.7
Disruption
or in any way being a disruptive presence at or near the premises of
the applicant and/or site occupied by the applicant
and/or any road
giving access to the premises and within the premise.
3.
Applicant
is directed to serve this order on the rest of the respondents who
are not before court today;
4.
The
issue of costs is referred for determination on the return date the
26
th
August 2021.”
[8]
It
seems that there was service of a kind on all Respondents but in
respect of Third, Seventh and Eighteenth Respondents by affixing,
not
personal service.
[9]
Before
me in fact the main issue was one of costs, Respondents denying
however that the rule was justified or that it should be
confirmed,
but suggesting that as they had not been implicated in the matter
complained of they should certainly not be mulcted
in costs.
[10]
At
the end of the day, however, the matter having stood down, no
agreement could be reached. Respondents, as represented,
seeking discharge of the rule with costs. Applicant sought
confirmation of the rule with costs including those reserved.
THE
BACKGROUND
[11]
It
is common cause that Applicant is the registered owner of Erf 2368,
Bengal Road, East London (Bengal Road), a registered “Township
Scheme” of 150 sites. Whilst Respondents are (amongst
others) purchasers of erven together with dwellings constructed
thereon, Respondents having grievances relating to the erven and
dwellings.
[12]
Meetings
have been held between some of the parties and Applicant relevant to
above.
[13]
The
real issue in this matter is simply whether Respondents, or some of
them, are preventing Applicant and contractors from having
access to
Bengal Road.
[14]
Applicant
avers that:
[14.1] On 23
February 2021 Applicant was notified by Nineteenth Respondent
“
representing 18 homeowners“
(not identified in
the papers) of complaints by “
the new homeowners”
regarding the “
properties”
.
[14.2] On 13 March
2021 the “
residents”
at the premises barricaded
the development entrance preventing the contractor or workers from
accessing same.
[14.3] A meeting
was held with “
the homeowners”
to address this and
the matter went on to certain negotiations during which “
the
Respondents”
permitted access.
[14.4] This went on
till 5 June 2021.
[14.5] This
negotiation broke down and on 6 June 2021 Applicant addressed
correspondence to “
the Respondent homeowners”.
[14.6] On 10 June
2021 at 07h15 Applicant’s employees were “
confronted
by”
the Tenth and Twelfth Respondents “
acting on
behalf of the homeowners cited as the remaining Respondents”
and were told to leave Bengal Road – which the employer
complied with.
[14.7]
Correspondence was then sent by Applicant to First to Twelfth
Respondents named “
the collective”,
demanding that
they desist on 11 June 2021.
[14.8] The
barricade of the premises continued and urgent relief was then
sought.
[14.9] Generally
that the First to Twentieth Respondents have taken control of Bengal
Road denying access thereto.
[15]
It
will be immediately apparent from the above that the identification
of Respondents, save for Nineteenth Respondent initially
and later
Tenth and Twelfth Respondents, is tenuous and little detail is given
as to their (denied) involvement or why and how
“
the
collective”
was made up and represented, and what each is alleged to have done.
[16]
The
represented Respondents’ papers deposed to in the main by
Nineteenth Respondent on behalf of (himself) and Fourth, Sixth,
Eighth to Seventeenth, and Twentieth Respondents joined issue with
the factual allegation made as follows:
[16.1] It is
alleged that Respondents had difficulty with certain of the
contractual terms and issues and approached
Applicant with these.
[16.2] At
least at this stage the Respondents referred to, represented by
Nineteenth Respondent raised their concerns
and grievances with
Applicant through Nineteenth Respondent.
[16.3]
Numerous attempts were described in an attempt to address this.
[16.4] Nineteenth
Respondent absolutely denies that “
Respondents”
at
any time obstructed access to Bengal Road, and alleges that Applicant
was uncooperative and left Bengal Road of its own accord.
[16.5] In
answering Applicant’s allegations that during negotiations
Respondents “
permitted the Applicant”
to return to
Bengal Road, is denied – this clearly on a proper reading meant
to convey that Respondents having not prevented
access were not
required to “
permit”
anything and that “
Applicant
just returned to the premises with no explanation and proceeded with
its business as usual”.
[16.6] As to
what is alleged to have occurred on 10 June 2021, any confrontation
or order to leave the premises is denied,
Respondents alleging going
to the premises to follow up on promises made by Applicant.
[17]
That
Respondents deny the subsequent obstructive events alleged, is said
to be a “
bald
denial”
by
Applicant.
[18]
To
summarise whilst admitting that they had complaints and raised these
with Applicant, the represented Respondents deny all unlawful
conduct
and/or obstruction of access – this being repeatedly stated.
[19]
In
reply Applicant, presumably perceiving the disputes raised as to the
unlawful conduct alleged, resorts to the probabilities,
and the issue
that had Respondents not been responsible for denying access they
would have had no issue with the interim relief
save as to costs.
This latter issue is so obviously a non-sequitur, as I pointed out in
argument, as to simply be dismissed
out of hand
[1]
.
[20]
The
issue then comes down to an assessment of the approach to
applications.
THE
APPROACH TO APPLICATIONS
[21]
In
general terms a Court can entertain motion proceedings when there are
no genuine disputes of fact.
[22]
Disputes
of fact which are discerned in any application are dealt with in
terms of Rule 6(5)(g) which permits the hearing of oral
evidence in
appropriate circumstances.
[23]
It
is clear from the authorities that whilst undesirable to settle
disputed facts on affidavit, the first step in considering this
issue
is to carefully examine such alleged disputes to determine if these
are real,
bona
fide
and material.
[24]
Whether
there is a real, material, genuine dispute (of fact) is a question of
fact for the Court to decide
[2]
.
[25]
There
must also be an enquiry as to whether such dispute, if established,
is relevant and material to the issue to be decided.
[26]
A
real dispute usually arises where Respondent denies material
allegations by Applicant and produces positive contrary evidence.
This can only arise where the party raising the dispute has seriously
and unambiguously addressed the disputed fact in the answering
affidavit
[3]
. For a
genuine dispute to arise Respondent must satisfy the Court that there
are reasonable grounds set out that would establish
a defence in
action proceedings
[4]
[27]
The
first issue relevant to a request for a referral to oral evidence or
cross-examination is a consideration of whether the application
cannot be decided on affidavit (Rule 6(5)(g)).
[28]
In
simple terms a motion proceeding will not be referred to oral
evidence, or cross-examination, unless it is clear that there is
a
material, real or genuine dispute of fact on the affidavits
[5]
.
[29]
It
must be remembered that, in respect of final relief, even where facts
are in dispute on the papers, but the Court is satisfied
nevertheless
that on Respondents’ facts, with those of Applicant’s
which are admitted by Respondents (or at least not
denied), that
Applicant is entitled to relief, it will make such an order
[6]
.
[30]
It
is Applicant, not Respondents, who runs a risk by bringing a claim on
motion. That is because, as with any motion proceedings,
to the
extent that any facts are genuinely in dispute, they must be resolved
in favour of Respondents
[7]
,
unless a referral is justified and sought.
[31]
The
SCA has accordingly held that:
“
It may be assumed… that
an applicant who presses for a decision on the papers in the face of
a factual dispute, by necessary
implication consents to the matter
being decided on the basis that the applicant is prepared to have the
matter decided on the
basis set out in
Plascon
Evans
…”.
[8]
[32]
The
Court went on to say, in
Ngquma
(supra)
,
that “
although
there are evidently disputes of facts there are no ‘real’
disputes of fact if either party can succeed on the
version of the
other party”.
[9]
[33]
The
Plascon
Evans
rule
is well known:
“
It is well established under
the Plascon-Evans rule that where in motion proceedings disputes of
fact arise on the affidavits, a
final order can be granted only if
the facts averred in the applicant’s … affidavits, which
have been admitted by
the respondent…, together with the facts
alleged by the latter, justify such order. It may be different
if the respondent’s
version consists of bald or uncreditworthy
denials, raises fictitious disputes of facts, is palpably
implausible, far-fetched or
so clearly untenable that the court is
justified in rejecting them merely on the papers”.
[10]
THE
RESULT
[34]
Applications
are not about probabilities they are about common cause facts and the
law applicable
[11]
.
[35]
In
this matter Applicant faces two issues and difficulties.
[36]
Firstly
the identification of those involved in respect of Respondents.
[37]
The
founding affidavit initially only clearly identifies Nineteenth
Respondent in relation to his leadership role in complaining
to
Applicant in February 2021, but does not identify the “
remaining
homeowners”
.
[38]
The
Applicant’s allegation as to the barricade of 17 March 2021, by
“
the
residents”
fails to state which of the individual Respondents were involved at
all or who did what, where and when.
[39]
Similarly
the meetings on 22 March 2021 to 5 June 2021.
[40]
As
from 12 June 2021, Tenth and Twelfth Respondents are identified, but
not the basis of the allegation that they were acting on
behalf of
the remaining Respondents, but in answer “
Respondent”
[12]
admits
going to the offices but says for no illegal purpose
.
[41]
It
is far from clear on what basis Respondents (bar Tenth and Twelfth
Respondents) were directly implicated herein at all.
[42]
As
to 22 June 2021 the reference to “
the
Respondents”
by
Applicant is non-specific and vague, far from sufficient to make it
clear which Respondents were alleged to have acted thus.
[43]
All
the above effectively identifies Tenth and Twelfth Respondents as to
a particular action alleged to have been taken unlawfully.
[44]
The
second issue is the dispute of fact as to who acted and particularly
whether, if so acting, they or any of them acted unlawfully
in
preventing access to Bengal Heights. This is frequently denied
by Respondents represented herein as set out above.
[45]
The
issue then, even if identification of participating Respondents is
established, which I consider not to be the case sufficiently,
bar
Tenth and Twelfth Respondents, comes down to whether the dispute as
to what Respondents did, or did not do, can be resolved
on the papers
in an application context.
[46]
Having
set down the proper approach hereto as referred to above, I fail to
see on what basis, even in a robust approach to the allegations,
that
I can, on these papers, resolve that issue.
[47]
Whilst
certainly the denials are concise – so are the allegations. Not
only is the allegation that access was prevented bare
of detail,
there is no indication as to particularly how, or by exactly whom and
in what specific manner each acted.
[48]
In
my view in these circumstances to deny same shortly, is in these
circumstances sufficient to create an irresolvable dispute on
the
facts.
[49]
In
the result the application must fail, there being no request for a
referral to evidence.
[50]
Such
failure must carry with it a costs order, Respondents being
substantially successful.
ORDER
[51]
In
the result the following order issues:
1.
The
application is dismissed, the rule
nisi
being
discharged.
2.
Applicant
is to pay the costs of the application in respect of those
Respondents opposing same being Fourth, Sixth, and Eighth to
Twentieth Respondents, including such costs as were reserved.
__________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Appearances
:
Obo
Applicant
:
Adv
T S Miller
Instructed by
:
Gravett
Schoeman Incorporated, East London
Obo
Fourth, Sixth, Eighth, Ninth, Tenth, Twelfth, Thirteenth, Fourteenth,
Sixteenth to Twentieth Respondents
:
Adv
Z Nxazonke-Mashiya
Instructed
by
:
MN Dwayi Attorneys, East
London
[1]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) [26] and [27], Motion proceedings cannot be used to
settle factual disputes not being designed to determine
probabilities.
[2]
Dorbyl Vehicle Trading and
Finance (Pty) Ltd v Northern Cape Town and Charter Service CC
[2001] 1 All SA 11 (NC)
123-4.
[3]
Wightman t/a
J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) [13].
[4]
Minister of
Land Affairs and Agriculture and Others v D & F Wevell Trust and
Others
2008
(1) SA 184
(SCA) [56] and
National
Director of Public Prosecutions v Zuma
(supra)
[5]
Van Wyk v Botha
[2005]
2 All SA 320
(C) at 328.
[6]
Transman (Pty) Ltd v South
African Post Office and Another
[2013]
1 All SA 78
(SCA) at [16].
[7]
Reddy v
Siemans Telecommunications (Pty) Ltd
2007
(2) SA 486 (SCA).
[8]
Ngquma v
Staatspresident; Damons NO v Staatspresident; Jooste v
Staatpresident
1988
(4) SA 224
(A0 at p 243 F-H.
[9]
Ngquma at p243
D-E.
[10]
National Director of Public
Prosecutions v Zuma (supra)
at
para [26].
[11]
National Director of Public
Prosecutions v Zuma (supra)
[12]
As I understand it being Tenth and
Twelfth Respondents.