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[2019] ZAFSHC 50
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Ledidi v Lididi and Another (5503/2018) [2019] ZAFSHC 50 (7 March 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION,
BLOEMFONTEIN
Case
no: 5503/2018
In
the matter between:
PHELABADANE
GERT LEDIDI
Applicant
and
JOSEPH
MZONJANI LIDIDI
1
st
Respondent
GREATER
BLOEMFONTEIN TAXI
ASSOCIATION
2
nd
Respondent
CORAM:
MOROBANE, AJ
JUDGMENT
BY:
MOROBANE, AJ
HEARD
ON:
21, 22 FEBRUARY 2019
DELIVERED
ON:
7 MARCH 2019
[1]
This is an opposed motion in terms of which the applicant seeks an
order to compel the first
respondent to sign transfer documents of
specified vehicles into his name. The first respondent is opposing
the relief sought against
him on the basis that he is the owner of
the vehicles and the operating licences.
[2]
The first respondent filed his opposing affidavit six days out of
time and he applied for
condonation for the late filing. This
application was not opposed and it was granted by Court.
[3]
During the hearing, applicant applied for leave to amend a
typographical error in paragraph
2.5 of the notice of motion to read
as follows: “Operating number LFSLB 34684/3”. The Court
granted his application
and the papers were accordingly amended.
[4]
In his opposing affidavit the applicant raised three preliminary
points. That is, the non-joinder
of Mr Ottlie Anton Noordman and
South African Revenue Service (“SARS”) in the current
proceedings. He stated that Mr
Noordman was appointed as the receiver
to divide the joint estate of the applicant and his former wife after
the divorce. The vehicles
in question were not disclosed to the
receiver during the liquidation process. Also, the Applicant has been
conducting a taxi business
since 2002 whilst employed by the South
African Police Service as a Police Officer. Mr Noordman and SARS have
interest in the undisclosed
assets of the joint estate and the
uncollected taxes respectively. Alternatively, the applicant is
before this Court with dirty
hands.
[5]
The non-joinder of Mr Noordman and SARS was dismissed during the
hearing and my reasons
follow hereunder. The undisclosed assets in
question comprise of 6 minibuses together with the taxi operating
licences. The first
respondent is the owner of the vehicles and the
operating licences which are subject to adjudication in the main
application. In
regard to the applicant, the alleged interest of the
receiver and SARS has not arisen.
[6]
Another point raised by the first respondent is the late filing of
the replying affidavit.
The parties previously agreed that applicant
should file his replying affidavit by 21 January 2019. However, the
affidavit was
only filed on 24 January 2019, three (3) days after the
agreed date. During the proceedings the applicant applied for
condonation
for the late filing of his replying affidavit which was
opposed by the first respondent. At this stage, I could not find the
alleged
prejudice that the first respondent would suffer if the
condonation were to be granted. I accepted that 3 days was not
inordinately
long to justify the refusal of the application before
Court. The application for condonation for the late filing of the
replying
affidavit was granted.
[7]
The first respondent raised a dispute of facts as a point in
limine.
He submitted that he (the first respondent) is the owner of the
vehicles and the operating licences. The applicant is not the
registered owner of the vehicles and the operating licences thus not
entitled to the relief sought. He submitted that there is a
dispute
with regards to the terms of the verbal agreement, the ownership of
the vehicles and operating licences. As a result, the
application
cannot be decided on papers without leading oral evidence. The
Applicant submitted that the Court will be justified
to refer the
matter to trial or for oral evidence.
[8]
On careful study of the founding affidavit and the opposing
affidavit, the papers give rise
to material dispute of facts. In
dealing with dispute of facts, Harms DP in
National
Director of Public Prosecutions v Zuma
[1]
said:
“
Motion proceedings, unless
concerned with interim relief, are all about the resolution of legal
issues based on common cause facts.
Unless the circumstances are
special they cannot be used to resolve factual issues because they
are not designed to determine probabilities.
It is well established
under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise in the
affidavits, a final order can be granted only if the facts
averred in
the applicant’s (Zuma’s) affidavit, which have been
admitted by the respondent (NDPP), together with the
facts alleged by
the latter, justifies such an order.”
[9]
According to the applicant, he was employed as a Police officer in
the South African Police
Service and a member of the Hiway Taxi Line,
also known as Turflaagte Route Committee. He has been the owner of
specified taxi
vehicles and operating licences and is conducting taxi
business since 2002. The vehicles include one CAM Inyathi, four
Toyota Quantum
and one BAW. The applicant was advised that it was not
desirable for a police officer to be involved in the taxi industry.
As a
result, he entered into a verbal agreement with the first
respondent and agreed that: the first respondent would be registered
as a full member of the taxi association, but the applicant would
retain full authority in relation to the taxi business; the applicant
would be in possession of the vehicles and operating licences; and
the first respondent would not become the owner or acquire any
rights
in respect of the vehicles and the operating licences. He retired
from the police in 2017 and the first respondent refuses
to sign
documents to effect transfer of the vehicle and operating licences in
his name.
[10]
The first respondent denies the applicant’s claim in his
opposing affidavit. He submitted that
he (the first respondent) is
the registered owner of the vehicles and operating licences. He has
entered into an agreement with
the applicant on the following terms:
a taxi business partnership; first respondent to pay R55 000.00
to the applicant to
join the business partnership; and once the
applicant ceases to be employed by the SAPS and he obtains membership
of a taxi association,
the first respondent would transfer ownership
of half of the taxis and half of the operating licences to the
applicant.
[11]
In my view, a dispute of material facts exists in the affidavits.
That is, each party has its own version
concerning the terms of the
agreement allegedly entered into, whether the agreement was a
partnership or not, and the contested
ownership of the vehicles.
Applying the
Plascon-Evans
rule, the facts are incapable of being resolved on affidavits as they
stand. The dispute is also incapable of being resolved by
common-sense approach as suggested in
Soffiantini
v Mould
[2]
case.
[12]
The defendant’s version is not far-fetched to justify its
rejection merely on the papers. It
should rather be ventilated at
trial or by oral evidence. The applicant ought to have foreseen that
dispute of facts was bound
to occur when the application was
launched.
[13]
I make the following order:
1.
The
application is referred to trial;
2.
The
notice of motion and the founding affidavit shall stand as simple
summons, and the opposing affidavit as notice to defend;
3.
The
Applicant shall file his declaration within 20 days of this order;
4.
Thereafter
the provisions of the Uniform Rules of Court will apply.
5.
The
costs of the proceedings to date are reserved.
V.M.
MOROBANE, AJ
For the
applicant:
NW Phalatsi
Instructed
by:
Phalatsi & Partners
BLOEMFONTEIN
For the 1
st
Respondent: Mr HJ Booysen
Instructed
by:
Booysen
& Fourie Attorneys
BLOEMFONTEIN
[1]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
290D-E
[2]
1956 (4) SA 150
(EDLD)
at 154G