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[2015] ZAFSHC 179
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Lepota v Mokeki (2537/2015) [2015] ZAFSHC 179 (10 September 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number.: 2537/2015
In
the matter between:
SELLO
MOSES LEPOTA
Applicant
and
LYDIA
MAMPAI MOKEKI
Respondent
HEARD:
10 SEPTEMBER
2015
JUDGMENT
BY:
MOCUMIE, J
DELIVERED
ON:
10
SEPTEMBER 2015
MOCUMIE,
J
[1]
The applicant applies to the court for a mandatory interdict ordering
the respondent to sign and deliver to the office of the
applicant’s
attorney an application for a permit (form VSPV/FSPT-10) in order to
transfer operator licence LFL2KB32811/1
(the operating licence) from
the respondent to the applicant, in the format contained in annexure
‘A’ to the Notice
of Motion. The applicant also
seeks an order that the respondent take all the necessary steps which
might be necessary in
order to transfer the operating licence to him
and an order that the registrar of this court is authorised to sign
the application
permit and take steps if the respondent fails to
comply with the order.
The
application is opposed.
[2]
The respondent raises one point in
limine,
pertaining to non-joinder in that the applicant failed to join the
Minister and or MEC and his and or delegated officials and or
entities, namely the Provincial Board amongst others, as the
custodians of the relevant forms and processes for the application
of
operating licences in terms of the
National Land Transport Act 5 of
2009
and the Public Transport Act 4, 2005.
[3]
The respondent alleges that the aforementioned officials and or
entities have an interest in the matter and they should have
been
joined as parties.
[4]
The substantial test for where the objection of non-joinder is raised
is whether the party that is alleged to be a necessary
party for
purposes of joinder has a legal interest in the subject matter of the
litigation which may be affected prejudicially
by the judgment of the
court in the proceedings concerned.
[1]
An order of joinder has always been limited to cases in which a
joinder is necessary. Generally, courts refuse to grant such
order where there was no material before it to establish any direct
or indirect interest in the relief sought.
[2]
[5]
In this case, the respondent has placed no material whatsoever before
this court to establish any direct or indirect interest
in the relief
sought. The point in
limine
must accordingly fail.
[6]
The salient facts of this case which are common cause are as follows.
Sometime in 2012 the applicant and respondent concluded
an agreement
in which the respondent undertook to sell an operating licence to the
applicant at R28 000.00. The respondent
paid the amount in
April 2012 to the applicant. Upon receipt of the amount, the
respondent made an affidavit in which she
confirmed that she was
willing to transfer the operating licence permit to the applicant.
The affidavit was submitted to
the Chairperson of the Greater
Bloemfontein Taxi Association (GBTA) but found to be older than a
year. This compelled the respondent
to fill in another affidavit and
submit same with the necessary authorities and gave same to the
applicant.
[7]
The applicant thereafter faxed all the papers to the respondent for
her to complete and sign to formalise the transfer.
The
respondent delayed to do so. A reminder was sent to her followed by a
request of sign the affidavit and the offer to transfer
the operating
licence, through the respondent’s erstwhile attorney, Mr Nico
Naude, who subsequently withdrew as the respondent’s
attorney.
[8]
In the heads of argument and her Replying Affidavit the respondent
admits the conclusion of the agreement and payment of the
R28 000 to
the applicant. But alleges that on an unspecified date and at an
undisclosed place she and the applicant approached
the Board to
complete the necessary forms for the transfer. They were together
when they were informed by an unnamed person or
member of the Board
that to transfer her operating licence to someone else was illegal.
So, the argument is made, she and the applicant
agreed to cancel the
agreement and that she should refund the applicant. The applicant
accepted the cancellation and to be reimbursed.
[9]
She alleges that, consequently when the applicant approached her for
the second time to sign the papers she could not sign them
based on
the attitude of the Board i.e. it was illegal to sell her operating
licence to someone else. It is the applicant that
reneged on the
agreement to cancel when he refused to accept the money.
[10]
Section 51 of the Free State Public Transport Act 4, 2005 authorizes
the transfer of an operating licence by one person to
another. The
applicable form must, for such purpose, be signed by both the
transferor and the transferee. It goes without
saying that once
the form is submitted duly signed by both parties the relevant
authorities will then give same attention and apply
other requirement
to determine whether the transferee qualified or not.
[11]
It is not in dispute between the parties that an agreement was
concluded between the parties as aforesaid and that the applicant
has
paid the respondent R28 000 as the purchase price. The applicant’s
case is simply that had the Board not refused that
she signs off the
relevant affidavit, the transfer would have materialised. She would
not have cancelled the sale and offered to
refund the applicant.
[12]
The applicant in his answering affidavit denied that he and the
respondent ever visited the offices of the Road Transportation
Board
in 2012 after the respondent accepted his money in conclusion of a
sale agreement of the respondent’s operating licence
between
them. He denied that there was any cancellation or offer to refund
the money. If there was any such cancellation, Mr Louw
submitted,
such cancellation was not supported by the respondent’s own
version and admissions on the papers. The communication
between the
parties from the time Mr Naude, the respondent’s erstwhile
attorney, was on board, bears no resemblance of a
cancellation of the
agreement. To the contrary the communications indicate a common
understanding that the operating licence was
sold but due to unknown
reasons the respondent delayed to sign off the papers. That is why
the applicant’s attorney put pressure
on her to do so. At no
stage di the respondent rely on a cancellation of the agreement until
late in her Replying Affidavit. Which
the applicant vehemently
denies. To date the respondent has still not paid him the R28 000 she
alleges she offered to repay.
[13]
Mr Khang, for the respondent, submitted that on the issue of
non-joinder and whether the agreement was cancelled or not there
is a
dispute on the facts which the applicant should have foreseen and not
proceeded on Motion.
[14]
To the contrary. Mr Louw submitted that from the admitted facts there
was no cancelation of the agreement. There is no indication
where and
when the purported cancellation and proposed refund were made. Nor
the purported refusal by the applicant to accept the
refund. These
are just bare denials which can never amount to a genuine dispute of
facts. These denials which do not tally with
the circumstances of the
case are to create a fictitious dispute which is not supported by the
facts.
[15]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. If notwithstanding that there
are facts
in dispute on the papers the court is satisfied that the applicant is
entitled to relief in view of the facts stated
by the respondent
together with the facts in the applicant’s affidavits which are
admitted or have not been denied, it will
make an order giving effect
to such finding [deal with the application on the undisputed
facts].
[3]
It is generally
undesirable to endeavour to decide an application upon affidavit
where material facts are in dispute. It is equally
undesirable for a
court to take all disputes of fact at their face value. If this were
done a respondent might be able to raise
fictitious issues of fact
and thus delay the hearing of the matter to the prejudice of the
applicant.
[4]
[16]
In line with the
Plascon
Evans
[5]
test, I have considered the respondent’s Replying Affidavit and
communication between the parties on the agreement concluded
between
the parties. In my view, the respondent’s version
consists of bald denials which make the version palpably
implausible,
farfetched and clearly untenable. In one breath she admits the
agreement without any reference to the purported cancellation.
In the
next, she makes the unsubstantiated allegations only in her Replying
Affidavit that the agreement was cancelled. In truth
there is no real
and genuine dispute between the parties. There is no way that the
agreement could have been cancelled as the respondent
desperately
tried to portray. The respondent’s version is rejected
outright.
[17]
Having said that, the only remedy available under the circumstances
to the applicant is an order from this court that the respondent
must
sign the entire necessary document to effect transfer of the
operating licence to the applicant. The Road Transportation Board
will either approve or not approve. But that cannot be done
until the respondent has carried out her end of the bargain.
[18]
I am satisfied that the applicant has made out a proper case and has
met the requirements for a final interdict.
[6]
[19]
In the result, an order is granted in terms of paragraphs 1, 2, 3, 4
and 5 of the Notice of Motion.
__________________
B. C. MOCUMIE, J
On
behalf of the applicant:
Adv. M.C. Louw
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Mr
Mphafi Khang Inc.
BLOEMFONTEIN
/PC
[1]
Bowring
NO v Vrededorp Properties
2007 (5) SA 391
(SCA) para [21];
Aquatur
(Pty) Ltd v Sacks
1989
(1) SA 56
(A) at 62A-E;
Transvaal
Agriculture Union v Minister of Agriculture and Land Affairs
2005
(4) SA 212
(SCA) para 64-66.
[2]
Harms et al: Civil Procedure in
the Superior Courts
B6.42
.
[3]
Roomhire Co
(Pty) v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T).
[4]
Peterson v Cuthbert & Co Ltd
1945 AD 420
at 428.
[5]
In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) the test is set out as follows:
Where
in motion proceedings a dispute of fact arises on the affidavit, 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.
[6]
Setlogelo
v Setlogelo
1914 AD 221
at 227.