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[2018] ZAFSHC 205
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De Buys Scott and Others v Scott (A100/2018) [2018] ZAFSHC 205 (22 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A100/2018
In
the appeal between:
JOHANNES DE BUYS
SCOTT
1
st
Appellant
JOHANNES
DE BUYS SCOTT
(Junior)
2
nd
Appellant
PIETER BAREND
SCOTT
3
rd
Appellant
and
STEPHANUS JOHANNES
SCOTT
Respondent
HEARD
ON:
19 NOVEMBER 2018
CORAM:
OPPERMAN, J
et
VAN RHYN, AJ
DELIVERED
ON:
22 NOVEMBER 2018
JUDGEMENT
BY:
OPPERMAN, J
I
CONTEXT
[1]
The appeal before court revolves around
The Protection from
Harassment Act, Act 17 of 2011
(The Act).
[2]
It is common cause that a feud persists between the two
Scott-brothers; that is the 1
st
appellant and the respondent. It stretches over many years. They farm
in the Winburg district and as fate would have it; in close
proximity
to each other. Their father, the patriarch of the family, died in
April 2012 and the farms and other assets are to be
inherited by the
two sons in compliance with the will that was signed on 31 May
2007.
[1]
The oil on the fire is the fact that the finalisation of the estate
has been dragged out due to; amongst others, poor management
thereof
as well as the bickering of the brothers. At the time of the hearing
of the appeal on 19 November 2018, the estate was
still not
concluded.
[3]
The brothers have taken custody of the farms with the assistance of
their legal representatives. On the 7
th
of March 2013 a letter was addresses to the legal representatives of
the appellants in which the situation in regard to the estate
as well
as the feud was depicted.
[2]
The situation deteriorated and protection orders were issued against
the appellants on 21 February 2018.
[4]
The grounds of appeal are that the evidence the
magistrate considered did not support a finding of “harassment”
as meant
in the Act and that the evidence did not support an order to
be granted against the second and third appellants. The costs order
could not have been granted in light of the provisions of the Act.
[5]
The conduct of the parties in general shows a real disturbance of
order that has not been managed; neither by the appellants
nor by
some of their legal representatives. Fortunately, the Republic of
South Africa prescribes to the Rule of Law and civilised
democratic
values that are depicted in the
Constitution of the Republic of
South Africa, 1996
and legislation such as
The Protection from
Harassment Act, Act 17 of 2011.
[6]
The parties are also neighbours and we cannot put it better; and do
concur with AJ van der Walt:
[3]
[4]
In
the post-apartheid constitutional dispensation, neighbour law has to
support and embody a notion of neighbourliness that extends
beyond
the sum total of the individual interests of each neighbour or the
localised interests of small, neighbourhood communities.
[7]
The fundamentals of this case entail more than mere economic
interests. Here it is about safety of persons and property, peace
and
order; and more. The Preamble to
The Act
sets out the
objectives of the Act:
Since the Bill of Rights
in the Constitution of the Republic of South Africa, 1996, enshrines
the rights of all people in the Republic
of South Africa, including
the right to equality, the right to privacy, the right to dignity,
the right to freedom and security
of the person, which incorporates
the right to be free from all forms of violence from either public or
private sources, and the
rights of children to have their best
interests considered to be of paramount importance;
AND IN ORDER to-
(a) afford victims of
harassment an effective remedy against such behaviour; and
(b) introduce measures
which seek to enable the relevant organs of state to give full effect
to the provisions of this Act,...
[8]
One of the remedies afforded to a victim under the Act is the issue
of a protection order by the Magistrates' Court against
the
perpetrator of harassment. That said; it is the duty of the
courts to prevent abuse and misuse of the justice system.
It has
often been stated in past judgments that o
ur
courts must jealously protect the virtue of the justice system and
litigation must be with the utmost honour and responsibility.
It must
not be for the mere sake of litigation. Superfluous litigation in one
matter obstructs the genuine want for access to;
and justice in
courts, for another.
[9]
Misguided appropriation and reckless use of the law to avoid
responsibility and blame the justice system for calamitous
consequences,
is offensive. Citizens must be granted leeway to
control their own fate and being. If they struggle legal
representatives must
advise them with wisdom and honour.
Counsel
are
the guardians of the dignity and
integrity of the nation. They need to make sure that they give
effect to what the Constitution
expects of them. Lawyers are not
hired guns but the foot soldiers of the Constitution, whose ultimate
role it is to administer
justice, and they need to do it with the
highest standard of integrity.
II
THE EVIDENCE
[10]
Counsel for the appellants argued that the facts of this case are too
frivolous for the courts to intervene. The submission
is of concern
to us.
[11]
It must be kept in mind that there are two factions involved; the
family of Johannes De Buys Scott
[5]
and that of Stephanus Johannes Scott.
[6]
There is a clear indication of collusion within the two families
against each other.
[12]
There are numerous serious incidents that were alleged but we will
first deal with those that are described by the appellants
themselves
from their perspective. The extracts are from the opposing statement
of the 1
st
appellant as was confirmed by the 2
nd
and 3
rd
appellants.
[13]
At paragraph 26
[7]
of the 1
st
appellant`s replying affidavit he testified that the respondent
chased his cattle (appellants’ cattle) that broke into the
respondent fields, onto a public road. In wanting to speak to the
respondent about the incident and not being able to get to the
respondent’s door, he threw stones on his roof to get his
attention. The respondent came out and fired shots with his firearm.
The 1
st
appellant was severely shocked. The 1
st
appellant registered a criminal complaint at the local police
station. After he has watched the video material of the incident,
he
used words such as “shocking”, “dangerous”,
and “irresponsible” to describe the incident.
[14]
The above is definitely not to be described as
:
“irritations, annoyances, even a measure of upset, arising at
times in everybody's day-to-day dealings with other people”
as
was described in the
Mnyandu
v Padayachi
(AR162/2014) [2016] ZAKZPHC 78;
[2016] 4 All SA 110
(KZP);
2017 (1)
SA 151
(KZP) (1 August 2016).
It
was so serious, on the version of the 1
st
appellant, that he opened a criminal charge against the respondent.
The respondent, of course, has a different version. His version
that
both sons were also involved is corroborated by his wife.
[8]
[15]
At paragraph 27 of the 1
st
appellants’ statement
[9]
he described how the respondent’s wife confronted him and swore
at him. This is verbal violence. On the respondent’s
version,
that was confirmed under oath by the wife, she was assaulted. This is
serious.
[16]
The 1
st
appellant admitted driving over the property of
the respondent and dragging the respondent`s railings and/or gates
behind his vehicle.
This is violent criminal behaviour.
[17]
The 1
st
appellant admitted entering the respondent’s
property to use the cattle loading facility. The 1
st
appellant admitted filling up the holes in issue, but explains it was
done for the safety of the animals. He goes on another man`s
property
with dubious permission, alter the ground and then pleads the safety
of his animals. This claimed innocence does not have
any substance;
specifically, so with the raging feud in the background.
[18]
The 1
st
appellant admitted throwing rocks on the roof of the respondent`s
house. It is common sense that you do not throw rocks on the
roof of
the person that you live in grave hostility with. You also use
civilised methods of communication such as phones or the
horn of the
vehicle, if necessary. The appellants must realise that acts such as
these, in light of the prevailing feud, will cause
harm
or inspire the reasonable belief that harm may be caused to the
complainant or a related person. It falls within the watching,
pursuing or accosting of the complainant or a related person, or
loitering outside of or near the building or place where the
complainant or a related person resides, works, carries on business,
...
[10]
There are more.
[19]
The respondent’s allegations that the appellants drove
recklessly onto and around on his property and killed one of their
dogs was met by one of bare denial.
[11]
The respondent met the denial with the corroborating evidence of the
farm workers.
[20]
The breaking down of the door and damage to the windows of the farm
worker`s house is supported by witnesses for the respondent.
[21]
The Plascon Evans-rule does not recue the case for the appellants. As
was stated in
Naidoo
v Pillay
(AR241/2016)
[2017] ZAKZPHC 10 (13 March 2017):
[12]
[9]
With reference to the general rule in Plascon-Evans, Harms DP
in
National Director of Public
Prosecutions v Zuma
2009(2) SA 277
(SCA) para 26 pointed out that the position may be different ‘if
the respondent’s version consists of
bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable
that the court is justified in
rejecting them merely on the papers’. In
Buffalo
Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another
2011(1) SA 8 (SCA) para 21 Shongwe
JA was of the view that this could be done where ‘the version
propounded by the respondent
was fanciful and wholly untenable.’
[22]
The mere fact that so many issues are in dispute and that there are
accusations flung to both sides of lies and misrepresentations,
tells
a story of its own.
The overwhelming conclusion to
be reached from a reading of the papers, and the undisputed facts in
particular, is that i
t tells of violence whether, emotionally
or physically. It tells of the disruption of order. The evidence
shows that the second
and third appellants are also involved.
[23]
The core of the animosity lies in the estate. The intentional delay
of the finalisation of the estate forms part of the harassment.
It is
common cause that the bickering and delay of the finalization of the
estate cause trauma to those involved.
III
FINDING
[24]
As already stated, the harm in this instance is
not trivial; the potential harm if the dispute is not managed, might
be severe.
The lawgiver only demands: “
any
mental, psychological, physical or economic harm.
”
The maintenance of a
civilized community
decrees as little harm as possible.
[25]
The dictum in the
Mnyandu-case was
never intended to be applied as it was in this case and the facts are
not comparable to that of this case. It consisted
of one email that
was summed up by the court by remarking that: “in sending the
email(it) may have been unreasonable, as
she allowed her emotions to
cloud her perception, but I am not persuaded that her conduct was
objectively oppressive or had the
gravity to constitute harassment.”
[26]
What is indeed applicable of the Mnyandu-case is that:
[28]
It
is trite that a court of appeal will not interfere with the findings
of fact and credibility of the trial court unless it is
apparent from
the record that the court a quo either materially misdirected itself
or erred to the extent that its findings are
vitiated and fall to be
set aside. The court of appeal must also remain cogniscent that the
trial court has the advantage of having
observed and heard the
witnesses.
[29]
In
S v Trainor Navsa JA set out the obligation of a trial court:
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the onus on any
particular issue or in respect of the case in its entirety.
[27]
The orders that were made against the appellants are in essence
admonishments to comply with law and refrain from contact with
certain persons. It is not draconic in nature or in any manner
invasive or prejudicial to them under the circumstances. The
application
for these orders by the respondent was on recommendation
of his legal representative after due consideration. They are;
Johannes de Buys Scott
(1
st
appellant and brother of the respondent)
“
The respondent
[13]
is prohibited by the court from:
(a) Engaging in or
attempting to engage in harassment of (i) the complainant and/or (ii)
Melanie van Rooyen;
(b) Enlisting the help of
another person to engage in harassment of the complainant and/or the
above related persons;
(c) Committing any of the
following acts: (i) damage any of the property of the complainant,
(ii) no contact with the complainant
and/or the person mentioned in
3.1 (a)(ii) above, and causing real or potential harm to the
applicant by leaving gates open as
described in the founding
affidavit.”
Johannes De Buys Scott
(2
nd
appellant and son of the 1
st
appellant)
“
The respondent is
prohibited by the court from:
(a) Engaging in or
attempting to engage in harassment of (i) the complainant and/or (ii)
his wife Hannerie and children Barend H
Scott and Stephanus Johannes
Scott;
(b) Enlisting the help of
another person to engage in harassment of the complainant and/or the
above related persons;
(c) Committing any of the
following acts: (i) ordered not to have any contact with the
complainant and the persons mentioned in
3.1 (a)(ii) above, (ii) and
refrain from entry to the complainant’s farms. This includes
entry to the complainant’s
farms, premises, buildings and
house.”
Pieter Barend Scott
(3
rd
appellant and son of the 1
st
appellant)
“
The respondent is
prohibited by the court from:
(a) Engaging in or
attempting to engage in harassment of (i) the complainant and/or (ii)
his wife Hannerie and children Barend H
Scott and Stephanus Johannes
Scott;
(b) Enlisting the help of
another person to engage in harassment of the complainant and/or the
above related persons;
(c) Committing any of the
following acts: (i) ordered not to have any contact with the
complainant and the persons mentioned in
3.1 (a)(ii) above, (ii) and
refrain from entry to the complainant’s farms. This includes
entry to the complainant’s
farms, premises, buildings and
house.”
[28]
There is no misdirection by the court
a quo.
The orders are
proper and effective.
IV
COSTS
[29]
The same goes for the costs order. In terms of section 16 of the Act
th
e court may only make an order as to costs
against any party if it is satisfied that the party in question has
acted frivolously,
vexatiously or unreasonably. The above shows that
the appellants conducted themselves in this manner and are the
architects of
their own fate. The finding of the court
a
quo
that the appellant must pay the
costs must read:
The
appellants must pay the costs
jointly and severally, the one paying, the other to be absolved.
[30]
The case in its entirety demonstrates that the appeal was brought
without any factual and legal substance. The appellants will
carry
the costs.
V
ORDER
[31]
The appeal is dismissed.
[32]
The
appellants must pay the costs
jointly and severally, the one paying, the other to be absolved.
________________
M. OPPERMAN, J
I
concur
_______________
I.
VAN RHYN, AJ
On
behalf of the appellants: Adv. P. Du P. Greyling
Instructed
by:
Steenkamp
& Jansen Ing.
BLOEMFONTEIN
On
behalf of the respondent: Adv. J.S. Rautenbach
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
[1]
Indexed bundle pages 45-48.
[2]
Indexed b
undle
pages 94-96.
[3]
B Jur
et
Art Honns (BA) LLB LLD (Potchefstroom) LLM (Witwatersrand), South
African Research Chair in Property Law and Professor of Law,
Stellenbosch University
[4]
The
Law of Neighbours; First Edition, Juta`s Property Law Service:
Internet: ISSN 2226-342X dated 20 November 2018 at 1st Ed,
2010
ch1-p5 -6.
[5]
1
st
Appellant.
[6]
Respondent.
[7]
Indexed bundle page 38.
[8]
Indexed bundle pages 22 & 118-119.
[9]
Indexed bundle pages 38-39
[10]
Section 1 of the Act:
“
harassment”
means
directly or indirectly engaging in conduct that the respondent knows
or ought to know—
(a)
causes harm or inspires the reasonable
belief that harm may be caused to the complainant or a related
person by unreasonably—
(i)
following, watching, pursuing or accosting
of the complainant or a related person, or loitering outside of or
near the building
or place where the complainant or a related person
resides, works, carries on business, studies or happens to be;
(ii)
engaging in verbal, electronic or any
other communication aimed at the complainant or a related person, by
any means, whether
or not conversation ensues; or
(iii) sending,
delivering or causing the delivery of letters, telegrams, packages,
facsimiles, electronic mail or other objects
to the complainant or a
related person or leaving them where they will be found by, given
to, or brought to the attention of,
the complainant or a related
person; or
(b)
amounts to sexual harassment of the
complainant or a related person;
“
harm”
means
any mental, psychological, physical or economic harm;
“
related
person”
means any member of
the family or household of a complainant, or any other person in a
close relationship to the complainant;
[11]
Respondents Heads of Arguments: page 10, paragraph vi.
[12]
Also see
Du
Plessis v Van Niekerk
2018
(6) SA 131
(FB) at paragraph 48.
[13]
In application in the court a quo.