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[2016] ZAECMHC 50
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Aristolinx Investments CC t/a ECDC Sasol Garage v Siyongwana (1496/2016) [2016] ZAECMHC 50 (10 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 1496/2016
ARISTOLINX
INVESTMENTS CC
t/a
ECDC SASOL GARAGE
Applicant
and
MZUKISI
VICTOR SIYONGWANA
Respondent
JUDGMENT
BROOKS
J
[1]
This is an application in which the applicant obtained, as a matter
of urgency, an interim interdict against the respondents.
The
interim interdict, embodied in a rule
nisi
, was obtained on 28
April 2016. The return day was initially 26 May 2016. For
reasons not disclosed in the application
papers, the rule
nisi
was extended until 31 May 2016, but then lapsed when the matter was
simply removed from the roll on that date.
[2]
On 30 May 2016 the matter became opposed by the respondent.
There appears to have been a delay in the preparation of the
answering affidavit, which is unexplained, that affidavit being
deposed to on 30 June 2016. In the interim, as it was entitled
to do in the absence of an answering affidavit, on 22 June 2016 the
applicant had applied for the allocation of a date when the
matter
might be heard on the uncontested opposed motion court roll. On
the same date, the registrar allocated the matter
to the uncontested
opposed motion court roll of 5 July 2016. Thereafter, on 30
June 2016 the respondent filed his answering
affidavit.
Inevitably, the matter was then removed from the uncontested opposed
motion court roll on 5 July 2016 with a further
order reserving the
wasted costs.
[3]
Thereafter the matter appeared on the roll on a number of occasions
and appears to have been removed by agreement. On
those
occasions, costs orders were made.
[4]
Although the terms in which the rule
nisi
was issued differed
substantially from the notice of motion, no amendment to the notice
of motion has been sought. The rule
nisi
having lapsed,
the relief sought by the applicant now is a final order in terms of
the original notice of motion. If granted,
the order would be
in the following terms:
“
1.
That the respondent be and is hereby interdicted from holding a media
conference at or near
ECDC SASOL garage, Sutherland Street, Mthatha,
or anywhere, in which conference the respondent will call upon
customers or members
of the public to boycott or not to go to the
applicant’s business;
2.
That the respondent be and is hereby interdicted from making
defamatory and false
statements that the applicant is deliberately
damaging customers’ motor vehicles;
3.
That the respondent be and is hereby interdicted from calling upon
customers
to boycott the ECDC SASOL garage situated at Sutherland
Street, Mthatha, or organising customers to the public to stage
protest
actions at the applicant’s premises or near them;
4.
That the respondent be and is hereby directed to pay the costs of
this application.
”
(
sic
)
[5]
It is trite that the court is enjoined to consider the grant of final
relief only if the facts alleged on behalf of the applicant
which are
admitted by the respondent in the answering affidavit, together with
the facts expressed by the respondent therein, justify
such
relief.
[1]
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.
[2]
[6]
Unlike an interim interdict, which does not involve a final
determination of rights, a final interdict effects such a final
determination of rights.
[3]
[7]
Upon the consideration of the allegations of fact contained in the
affidavits filed of record in accordance with the preceding
paragraph, the applicant would be entitled to relief if it is able to
establish the following:
[7.1]
that there is a clear right on the part of the applicant;
[7.2]
an injury actually committed or reasonably apprehended;
[7.3]
the absence of any other satisfactory remedy available to the
applicant.
[4]
[8]
It is apparent from the application papers that on 19 March 2016 the
respondent bought fuel from the applicant’s premises
in
Mthatha. Instead of diesel, the vehicle was filled with
petrol. The respondent was obliged to take remedial action
and
a number of exchanges occurred between the parties. There are
disputes on the papers pertaining to the true cause of
the need for
the remedial action and the timing thereof. For present
purposes, it is not necessary to go into any detail
on these
aspects. In seeking the interim interdict originally, the
deponent on behalf of the applicant expressed fears that
the
respondent was on the point of organising a press conference outside
the applicant’s premises at which defamatory statements
would
be made and at which potential customers would be asked to boycott
the applicant’s business. The impression was
that this
press conference would be held on 28 April 2016, the day upon which
the interim order was sought and obtained
ex parte
as a matter
of urgency.
[9]
Whilst in the answering affidavit the respondent admits to exchanges
occurring between the parties, the essential allegations
pertaining
to the imminent threat perceived by the applicant are denied.
Attention is drawn in the answering affidavit to
the insufficiency of
the material placed before the court by the applicant as evidence of
the threat alleged.
[10]
It is apposite to record that nowhere in the founding affidavit does
the applicant allege a well grounded apprehension that
any threats of
action against the applicant’s business are likely to occur in
the future. It is plain that disputes
between the parties
remain, but they are not the true subject of the present
proceedings. Indeed, nothing prevents the respondent
from
instituting an action against the applicant for the recovery of any
damages which he believes he has suffered as a result
of the incident
at the applicant’s premises on 19 March 2016. The same
right accrues to the applicant.
[11]
It is notworthy that the application papers and the interim order
were only served at 12h00 on 28 April 2016 and that the service
was
not personal. In the answering affidavit filed later, the
respondent states that he has no knowledge of the person upon
whom
service occurred. The return of service shows simply that
occurred at “Gxulu A/A Mthatha”, referring to
an
administrative area, and upon a named person thereafter described as
a “cousin sister”. The respondent only
came to know
of the application and the interim order much later, and quite by
chance when his attorneys caught sight of the name
of the matter when
perusing the motion court roll for 31 May 2016.
[12]
It is trite that a court will not grant an interdict restraining an
act which has already been committed. An interdict
is not a
remedy for a past invasion of rights.
[5]
The high water mark for the applicant’s case (which in
any event is disputed by the respondent) is an event which the
applicant believed was scheduled for 28 April 2016 and which may or
may not have occurred. Any invasion of rights which may
have
been threatened has come and gone.
[13]
In all the circumstances, I am of the view that the applicant’s
pursuit of this application for a final interdict is
ill-advised.
The application cannot succeed.
[14]
On 5 July 2016 the matter was removed from the roll, apparently by
agreement between the parties. By that date, all the
affidavits
had been exchanged and, by all appearances, the matter could have
been argued. By then the
rule
nisi
had
lapsed. The wasted costs occasioned by the removal of the
matter from the roll were reserved. In the absence of
any
reliable indication of the dynamics at play on 5 July 2016, in my
view an appropriate order would be simply to make no order
as to
those wasted costs.
[15]
The following order will issue:
1.
The application is dismissed with costs.
2.
No order is made in respect of the reserved costs of 5 July 2016.
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: Mr. L MATHANDA of
Graham
Mpeto & Associates
26
Madeira Street
MTHATHA
For
the respondent: Adv MN HINANA
Instructed
by
Z.
NTELEZI & CO
55
MADEIRA STREET
MTHATHA
Date
heard:
03 November
2016
Date
delivered:
10 November 2016
[1]
PLASCON EVANS PAINTS LTD v VAN RIEBEECK PAINTS
(PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634 – 635.
[2]
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v ZUMA
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) par [26].
[3]
FOURIE v OLIVIER EN `N ANDER 1971 (3) SA 274 (T).
[4]
SETLEGO v SETLEGO
1914 AD 221
at 227.
[5]
PHILIP MORRIS INC AND ANOTHER v MARLBORO SHIRT
CO. LTD AND ANOTHER
1991 (2) SA 720
(A) 735 B.