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[2016] ZAGPPHC 258
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Molete and Another v Molete and Others (A1044/13) [2016] ZAGPPHC 258 (20 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
20/4/16
CASE NO: A1044/13
Not reportable
Not of interest to other
judges
In the matter between:
TRYPHENA MOLETE
First
Applicant
TRYPHENA MOLETE
NO
Second
Applicant
and
DANIEL
MOLETE
First
Respondent
DANIEL MOLETE
NO
Second
Respondent
JOSEPH
MOLETE
Third
Respondent
MOHAYABO MOSES
MOLETE
Fourth
Respondent
WILLIAM
MOLETE
Fifth
Respondent
JOY MPHELE
RAPHESU
Sixth
Respondent
EVA
MOLETE
Seventh
Respondent
AGNES
MOLETE
Eighth
Respondent
JUDGMENT
Tuchten J
:
1. This is an appeal from
an order made by Preller J in the court below discharging a rule
nisi
granted by Mabena AJ upon an
ex parte
application made by
the present appellant in the unopposed motion court of this Division.
The appellant approached the court below
both in her personal
capacity and as executrix in the estate of her late husband, Mabolo
Silas Molete (the deceased).
2. When the appeal was
called before us, it emerged that the respondents' attorney had
neglected to brief counsel to resist the
appeal even though the
respondents had put him in funds in this regard. At a late stage,
this attorney telephoned Adv Saaiman,
who had appeared for the
respondents in the court below, and asked him to accept the brief.
However, Adv Saaiman had already taken
a brief for the day of the
appeal and declined the brief offered to him by the respondents'
attorney. Fortunately, the case for
which Adv Saaiman had been
briefed settled before the present appeal was called before us and
Adv Saaiman appeared, without papers
and with only his recollection
of the matter, to help the respondents and the court. We are indebted
to Adv Saaiman for his assistance.
The attorney has of course, if
what I have described above is factually correct, been guilty of a
serious dereliction of duty and
we shall reflect our disapproval of
the attorney's conduct in a special order for costs, in regard to
which we invited Adv Saaiman
to make submissions. Counsel was unable
to submit that costs order against the attorney which I shall propose
would be inappropriate.
I shall however provide in the order that
this aspect of the costs order will be provisional, so that the
attorney can have it
reconsidered it if he or she so wishes.
3. The appellant
approached the court below on a notice of motion dated July 2012 (the
date was otherwise left blank). The relief
sought was divided into
interim relief (Part A) and final relief (Part 8). The claims related
to 11 motor vehicles, said by the
appellant to belong to the estate
of the deceased.
4. The interim relief
claimed in Part A of the notice of motion was brought
ex parte
and
directed at preserving the vehicles and certain documents pending the
determination of Part B. The basis for the Part B relief
was the
allegation that the estate was the owner of the motor vehicles. This
allegation had been the subject of dispute between
the appellant and
several other members of the Molete family since 2011. These family
members, among whom are the respondents in
the present proceedings,
maintained that the motor vehicles had been bought by and used in the
family business, in which during
his lifetime the deceased seems to
have been a partner or employee. For licensing purposes, however, the
respondents claimed, the
vehicles had been registered in the name of
the deceased, who in life was the brother of the fourth respondent.
5. The appellant
disclosed that these vehicles had been the subject of dispute in two
previous court proceedings in the Bochum magistrate's
court under
case no. 74/2011, the first on 24 August 2011 and the second on 6
October 2011, in both of which the appellant had
been unsuccessful.
All the appellant disclosed about these proceedings in her founding
affidavit was that, according to her, she
had lost the first case for
lack of urgency and the second because the monetary value of the
assets she claimed exceeded the monetary
limit of the jurisdiction of
the magistrate's court.
6. The justification for
proceeding without notice to the respondents in relation to the Part
A relief was set out in paragraph
25 of the founding affidavit. The
grounds were in summary said to be a fear that the respondents would
damage the vehicles themselves
or "replace the vehicles' parts
from those cars in order to frustrate my rights" or might damage
the vehicles deliberately
or subject them to theft and other damage.
While conceding that she was "not sure of the extent of the
respondents' reliable
assets", the appellant asserted that the
respondents would not be able to satisfy their indebtedness to her if
they should
destroy the vehicles and would not make a reasonable
payment to her while the matter was in progress. The appellant
asserted that
there would be no prejudice to the respondents if the
vehicles were placed in her possession. The respondents, she said,
would
be able to state their case at a later date.
7. The appellant added
that she would suffer personal loss if the vehicles were not
preserved as the respondents did not have assets
to satisfy any claim
she might have and asserted that the vehicles were subject to risk of
further damage "as there was a
likelihood that the respondents
have not insured ... or regularly serviced" the vehicles.
8. The order of Mabena AJ
made on 17 August 2012 directed the respondents to hand over the
vehicles and documents relevant to the
sheriff for preservation
pending the adjudication of the Part B relief.
9. The order was executed
on 29 August 2012. Five of the vehicles were removed by the acting
sheriff for the district of Bochum
and stored. In the sheriff's
return, the sheriff informed the appellant and the court that he
intended to charge R100 per day per
vehicle plus VAT for the storage
and would not release the vehicles unless payment was forthcoming.
The remaining four vehicles
were for various reasons not removed.
10. The respondents then
brought an urgent application for the reconsideration of the order of
Mabena AJ. In their answering affidavit,
deposed to by the fourth
respondent and presented for the reconsideration, the respondents
made the case that the vehicles were
used in the family business and
had been bought and paid for by the business. The second respondent,
who had been cited as the
executor of the deceased estate of the
family matriarch, the late Selina Makgasa Molete, denied that he was
the executor in her
estate. Besides that, the other respondents
merely confirmed what the fourth respondent said. The appellant
admitted that a family
business existed but otherwise responded with
bare denials to these allegations and gave no basis for her denials.
On the appellant's
own version, she played no part in the management
of the family business. So her denials can carry no weight.
11. Although these
matters were not traversed in the papers before this court, it can be
gleaned from the papers in the magistrate's
court proceedings
attached as annexures that the family business, or a division of the
family business, is the Komang Kanna Cafe,
which was said to have
been owned by the late Selina Makgasa Molete's late husband. The late
Selina Makgasa Molete was at that
stage in possession of the business
and the vehicles as the executrix of her late husband's estate and
his heir. The appellant
apparently asserted in the magistrate's court
that this business had been given by the late Selina Makgasa Molete's
late husband
to the deceased, an allegation denied by the late Selina
Makgasa Molete in an affidavit in the magistrate's court proceedings,
as was also the allegation that the vehicles belonged to the
deceased.
12. The respondents
further made the case in the answering affidavit, correctly, that the
grounds upon which the appellant sought
relief
ex parte
were
speculative and that no evidence as such was presented by her in
support of her assertions. No actual evidence was presented
by the
appellant in reply in response to that challenge.
13. The reconsideration
application came before Preller J. The learned judge concluded that
it was impossible to come to any conclusion
on the opposing
contentions regarding the ownership of the vehicles. It was implicit
in this finding that the court below concluded
that the appellant had
made out no more than a weak
prima facie
case, if even that,
on the central question in the dispute, ie who owned the vehicles.
14. Counsel for the
appellant in heads of argument criticised this finding, submitting
that the incidence of ownership was irrelevant.
This, argued counsel,
was only relevant when Part B came to be considered and it was only
Part A that was before the court. As
Ishall show, counsel's
submission was incorrect.
15. Preller J proceeded
to conclude that the appellant had moved the court below
ex parte
because she knew that the respondents had a defence to her claim
which had already in substance been raised in the magistrate's court
and that the reason the appellant moved this court
ex parte
was
probably to avoid having to deal with the, to her, inconvenient fact
that a defence to her claim
on its merits
had been raised on a
previous occasion.
16. I agree with this
conclusion. The appellant has produced no evidence in support of her
ultimate claim except for the fact of
registration. This
registration, it need hardly be said, is merely an administrative
procedure and cannot be compared with the
registration of immovable
property in the name of a particular person. It is highly probable
that the true motive of the appellant,
and those who were advising
her, in coming
ex parte
was to fortify her negotiating
position against the respondents by depriving the business of the use
of the vehicles. This was in
my view entirely improper.
17.
Section 11
of the
Administration of Estates Act, 66 of 1965
confers a statutory right
on the executor of a deceased state to take temporary custody any
"... property ... which belonged
to ..." a deceased person.
The proviso to
s 11(3)
however provides that the provisions of
s
11(3)
which oblige a person in possession of property of a deceased
person to surrender such property to the executor "... shall
not
affect the right of any person to remain in possession of such
property ... under any contract, right or
(sic
of?) retention
or attachment".
18.
Section 11
of the
Administration of Estates Act was
not relied upon by the appellant
either in her papers before the court below or in argument. Her case
was based on ownership and
an assertion that the balance of
convenience favoured a preservation order under which, the appellant
submitted temporary custody
of the vehicles should In the
circumstances be given to the sheriff. It remained for the appellant
to show that she had prospects
of success in proving that the
vehicles belonged to the estate and that the vehicles should be taken
off the road and held by the
sheriff until the dispute was resolved.
I do not think, for the reasons given below, that
s 11
advances the
appellant's case.
19. Preller J concluded
that on the evidence before him, he would not have granted the
ex
parte
order. Because the learned judge was sitting in the urgent
court, full reasons for this conclusion were not given. I however
agree
with the conclusion and I shall say below why I do so.
20. The starting point is
the nature of the reconsideration proceedings which served before
Preller J. Their dominant purpose is
to permit an aggrieved person
against whom an order was granted in her absence to have that order
reconsidered. It provides a mechanism
to redress the imbalance
inevitably present when both parties to a dispute are not before the
court.
Rule 6(12)
, under which a reconsideration takes place, affords
a wide discretion both as to procedure and to remedy.
21.
An order
granted
ex
parte
is
by its nature provisional, irrespective of the form which it takes.
Once it is contested and the matter is reconsidered by a
court, an
applicant is in no better position than he or she was when the order
was first sought and there is no reason why he or
she should be in a
better position in this respect merely because the respondent was
unaware of the proceedings.
[1]
22.
An order
granted in the absence of a party to whom notice should have been
given should, at the instance of the aggrieved party,
be set aside as
one erroneously granted as contemplated by
rule 42
(1)(a), unless,
possibly, there are weighty considerations such as the interests of
any parties other than the litigants which
may be affected by the
rescission.
[2]
23. A litigant who
proceeds
ex
parte
assumes
very significant burdens and runs very significant risks. In
particular the
ex
parte
applicant
must go further than merely setting out his or her case as he or she
would if his or her application were brought on notice.
He or she
owes a duty of good faith which requires the disclosure of all facts
and circumstances, however unpalatable to the applicant,
which
might
influence
a court to decline to hear the application
ex
parte.
If
in subsequent proceedings it appears that there has been such a non-
disclosure, the court hearing those subsequent proceedings
may on
that ground alone set side the original
ex
parte
order,
regardless of the strength of the case put up by the errant
applicant.
[3]
24. I do not think that
the appellant justified the approach to the court
ex parte.
I
agree with the submission made on behalf of the respondents that the
case made by the appellant in this regard was mere assertion.
The
right to be heard before
any
relief is granted against one is
not only a most valuable procedural right but is embedded in the
notion of a
fair
hearing in s 34 of the Constitution. The
argument one frequently hears in cases in which orders are sought
ex
parte
and which was made by the appellant in her papers and
advanced by her counsel before us, that all that is being asked is
interim
relief which can be reconsidered at a later stage. There is
no merit whatsoever in the argument. It takes no account of the harm,
particularly but by no means only commercial harm, which such an
order can cause. In the present case, the respondents' capacity
to
conduct the family business must manifestly have been seriously
prejudiced by the execution of the
ex parte
order. The fact
that eleven vehicles were involved, some of which were designed for
the transport of goods, ought to have alerted
Mabena AJ to the risks
attendant upon the grant of an order without first hearing the other
side.
25. It is clear then
there was a material non-disclosure. If Mabena AJ had been told that
the ownership of the vehicles had been
in dispute since at the latest
2011 and that the respondents claimed to be using the vehicles in the
family business, it is highly
doubtful, to say the least, that the
ex
parte
order would have issued.
26.
I have no
hesitation in affirming the decision of Preller J on the basis that
the appellant ought never to have been allowed to
proceed
ex
parte
on
the strength of the case made out by her and that the order ought to
be set aside for material non-disclosure. No interests of
third
parties are affected by the order. There further is an element of
legal policy that must be taken into account. The abuse
of the
ex
parte
procedure
is a prevalent mischief in this Division.
[4]
A court should not lightly allow a litigant who is guilty of seeking
ex parte
relief
without justification for the failure to serve or who is guilty of a
non-disclosure to escape the most condign consequences
of his or her
actions.
27. I think I should also
consider the merits of the application for Part A relief, as
identified in the affidavits which ultimately
served before Prelier
J. The Part A relief was in essence an application for an interim
mandatory interdict. What an applicant
must show in this regard is
well known.
28. The applicant must
establish a
prima facie
right, a well grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is granted,
an absence of any other satisfactory
remedy and a balance of convenience in favour of the grant of interim
relief. Where there
are factual disputes, the facts set out by the
applicant must be taken together with any facts as set out by the
respondent which
the applicant cannot dispute and the court must
consider whether, having regard to the inherent probabilities, the
applicant should
on those facts obtain final relief. The facts set up
in contradiction by the respondent then fall to be considered. An
applicant
upon whose case serious doubt is thrown cannot succeed in
obtaining temporary relief.
29.
Once a well
grounded apprehension of irreparable harm and the absence of an
adequate ordinary remedy are established, the court
is vested with a
discretion, which will usually resolve into a consideration of
prospects of success and the balance of convenience.
The stronger the
prospects of success, the less need for such balance to favour the
applicant. Conversely, the weaker the prospects
of success, the
greater the need for the balance of convenience to favour the
applicant.
[5]
30. I think that serious
doubt has been thrown on the appellant's case. I have shown how her
case for ownership on the part of the
deceased rests on no more than
the fact of registration. Against that, there is the evidence that
the vehicles were not bought
by the deceased and that the vehicles
were not in his possession or used by him personally at the time of
his death. Nor is there
any evidence that the deceased was
remunerated for "allowing" (as the appellant's case would
imply) the vehicles to be
in the possession of and used by someone
other than the deceased.
31. But as with most
interim interdict cases, the balance of convenience is decisive. The
vehicles are said by the respondents to
be used in the family
business. The prejudice to the business if it were to be deprived of
the use of the vehicles is obvious.
Indeed counsel for the appellant
conceded that it was not in the interests of the estate of the
deceased that the family business
should be prejudiced. It is
significant in this context that the appellant does not identify any
particular individual as using
and possessing any particular vehicle.
The probabilities that the vehicles were indeed used by the business
favour the respondents'
version. As the appellant has at best a weak
case on the merits and the balance of convenience favours the
respondents. I would
on the merits have refused the Part A relief.
32. There is a further
matter with which I must deal. I have mentioned that the sheriff
declared in his return that he would not
release the vehicles unless
his self-assessed storage fees were paid. I do not think that he has
any rights in this regard against
the respondents. His duly assessed
fees must be paid by the attorney who instructed him. Because the
attorney is liable to the
sheriff, I cannot see that the sheriff has
any claim for enrichment against the respondents. It therefore
follows, as I see it,
that the sheriff has no storage lien
enforceable against the respondents. I shall therefore propose an
order that the sheriff must
return the attached vehicles to
respondents and may not withhold them on the ground that his fees
have not been paid. As the sheriff
has not been heard on this point,
I shall frame this part of the order too as provisional, with a right
on the part of the sheriff
to approach the motion court of this
Division for a reconsideration.
33. It follows
accordingly, in my view, that the appeal cannot succeed. The
appropriate costs order in such a case would usually
be that costs
follow the result. However, because of the dereliction of duty by the
respondents' attorney, I propose that these
costs be disallowed. To
ensure that the respondents themselves are not prejudiced, I propose
that their attorney be barred from
claiming any fees or disbursements
from the respondents and that any money paid by the respondents to
their attorney on account
of the appeal must be refunded.
34. I propose that the
following order issue:
1. The appeal is
dismissed.
2. The sheriff who has
custody of the motor vehicles described in the return of service
dated 6 September 2012 at pp69-70 of the
present appeal ("the
vehicles") must immediately restore all the vehicles by
delivering them to the respondents at Milton
Duff Farm, 26 Ga-Molete,
or such other address the respondents may notify to the sheriff in
writing.
3. The sheriff shall not
be entitled to withhold the restoration of any of the vehicles as
ordered in 2 above on the ground that
the sheriff's fees or other
costs in relation to the storage of the vehicles have not been paid.
4. There will be no order
as to the costs of the appeal.
5. The attorney for the
respondents may recover no fees or disbursements from the respondents
in relation to this appeal and must
forthwith refund to the
respondents all money paid by the respondents to their attorney on
account of this appeal.
6. The orders in 2, 3 and
5 above will be provisional as against the sheriff and the
respondents' attorney respectively for a period
of 10 days. The
period of 10 days will run in the case of the sheriff from the date
upon which the sheriff acquires notice of the
contents of this order
and in the case of the respondents' attorney from the date upon which
this judgment is handed down. The
sheriff and the respondents'
attorney respectively may, during such period, approach the motion
court of this Division on notice
to all the parties for a
reconsideration of the orders in 2, 3 and 5 above. Failing any such
approach, the orders in 2, 3 and 5
above will become final.
___________________
NB Tuchten
Judge of the High Court
8 March 2016
I agree. It is so
ordered.
___________________
RG Tolmay
Judge of the High Court
March 2016
[1]
Compare Pretoria Portland Cement Co Ltd and Another v Competition
Commission and Others
2003 2 SA 385
SCA para 45, quoting with
approval from Ghomeshi-Bozorg v Yousefi
1998 1 SA 692
W at 6960-E
[2]
Clegg v Priestley
1885 3 SA 950
W 9541. Compare Lodhi 2 Properties
Investments CC and Another v Bondev Developments (Pty) Ltd
2007 6 SA
87
SCA para 24.
[3]
Schlesinger v Schlesinger 19794 SA 342 W as repeatedly affirmed. See
eg
Hassan
and Another V Berrange NO
2012 6 SA 329
SCA para 14
[4]
Our roll which included the present appeal demonstrates this point.
Two out of the three appeals on our roll arose from the grant
of
orders ex parte.
[5]
See, eg, Gip/a Medipro (Pty) Ltd v Aventis Pharma SA and Related
Appeal
2013 4 SA 579
SCA para 40.