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[2014] ZAGPPHC 18
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Du Plessis Barry and Another v Chapman and Others (1600/2013) [2014] ZAGPPHC 18 (18 February 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG NORTH DIVISION, PRETORIA
CASE NO. 1600/2013
DATE: 18 FEBRUARY 2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
In the matter
between:
RICHARD DU PLESSIS
BARRY
.......................................................
1
st
Applicant
CLEARWATER
ESTATES
..................................................................
2
nd
Applicant
and
WAYNE DOLD
CHAPMAN
.............................................................
1
st
Respondent
RIVER CHAPMAN
PROPERTIES
...............................................
2
nd
Respondent
RIANA
BOTES
...................................................................................
3
rd
Respondent
JUDGMENT
1. The first
applicant is Richard Du Plessis Barry, an adult pharmacist manager
residing at 8[…] B[…] C[…],
C[…] E[…],
P[…], Ext.3 Township, Boksburg, Gauteng.
2. The second
applicant is Clearwater Estates, an association registered as a
non-profit organisation and as a company under section
21 of the old
Companies Act 61 of 1973, with registered
address at 20, Fifth Avenue, Northmead, Benoni, Gauteng.
3.
The
first respondent is Wayne Dold Chapman, an
adult businessman
residing at 2[…] B[…] R[…], C[…] E[…],
P[…]
, Ext. 3 Township, Boksburg,
Gauteng.
4.
The
second respondent is River Chapman Properties CC, a close corporation
duly registered and incorporated with registered address
a
t
1[…] P[…] R[…], C[…] E[…], P[…]
,
Ext. 8, Boksburg, Gauteng.
5.
The
third respondent is Riana Botes, resident at the same address as the
first respondent, an adult businesswoman holding the full
member’s
interest in the second respondent.
6.
This
matter is a regrettable example of litigation arising from
comparatively minor issues getting out of control and resulting
in a
multitude of allegations and counter-allegations, all reflecting
rather negatively upon the protagonists.
7.
The
applicants launched what was called an extremely urgent application
for an interdict preventing the first respondent from assaulting
or
threatening the first applicant; or using condescending language in
the presence of certain third parties of and concerning
the first
applicant. The notice of motion was couched in garbled and prolix
language.
8.
The
supporting affidavit, exceptionally prolix both in its terms and in
the annexures attached thereto, disclosed another cause
of action,
namely an order preventing the second respondent from doing business
as an estate agent in the estate of the second
applicant, unless duly
‘accredited’ as such by the second applicant’s
homeowners’ association.
9.
The
original application was dated in February 2013. A comedy of errors
led to the matter being enrolled and heard in two different
courts
resulting in a provisional interdict being granted in the one and the
matter being dismissed in the other. Both orders were
subsequently
set aside in April 2013. Unfortunately, matters were not left there.
Applicant filed an amended notice of motion,
clarifying the relief
sought as an interdict against first and third respondents preventing
them from threatening or assaulting
the first applicant or his
associate Ruth Campbell (‘Campbell’), interfering with
the latters’ activities and
spreading falsehoods about them;
and an interdict against all three respondents restraining them from
operating as estate agents
within the perimeters of the second
applicant’s estate without being accredited as aforesaid and/or
without being the holder
of a valid and current Fidelity Fund
Certificate.
10.
The
matter had its origin in disagreements stemming from the insistence
by the second applicant, as represented by the first respondent
and
Campbell, that the second respondent deduct levies due to the second
applicant from the rental paid into its account by owners
of
properties in the second applicant’s estate. Some homeowners
let their properties in the estate through the office of
the second
respondent’s office. The respondents refused to pay over levies
unless mandated to do so by their clients. The
second applicant
therefore withheld ‘accreditation’ from the second
applicant to do business in the estate.
11.
This
dispute led, i.a., to an altercation between the first applicant and
the first respondent in a restaurant, ending in an unseemly
slanging
match that first applicant alleges was accompanied by significant
physical aggression. This charge is vigorously disputed
by the first
and third respondents, who in turn charge the first applicant and
Campbell with harassment, invasion of privacy, defamation,
undue
interference with second respondent’s business, exceeding their
functions as second applicant’s directors and
generally abusive
behaviour.
12.
A serious charge levied at the
applicants is an assertion that they procured supporting affidavits
attached to the founding affidavit
and the original notice of
motion, assisted by their attorney, that were sworn to by the
deponents without the latter being informed
of the contents of the
principal affidavit or of the document they were signing. These
serious allegations are supported by the
deponents concerned, but
are strenuously denied by applicants’ attorney. It is, of
course, quite impossible to establish
the truth of these conflicting
versions on paper.
13.
The
further interdict sought, namely the attempt to prevent the second
respondent acting as estate agent unless properly licensed
and
accredited by the homeowners’ association is also
problematical. The respondents correctly point out that second
respondent’s
mandate as agent arises from a contract with the
landlords and not with the second applicant. Unless authorised by the
property
owner no levies can therefore be lawfully deducted from the
rentals received. Respondents are, in addition, no members of the
second
applicant and not subject to its internal rules. The
applicants’ demands are therefore unfounded.
14.
As
far as the alleged lack of a Fidelity Fund Certificate on the part of
the second respondent is concerned, similar considerations
apply. It
is questionable whether the court can issue an interdict on this
ground at the
instance of an outsider to the second
respondent’s relationship with the Estate Agents’ Board
or its clients. Applicants
have no direct interest in this aspect.
They are at liberty to lay charges with the relevant authorities, but
whether they have
the required
locus standi
to obtain an
interdict is doubtful. Even if such were possible, it is clear that
an order to that effect would be difficult to
enforce and to police.
15. The parties
have been at loggerheads for a long time. After the conflicting
orders were set aside, applicants renewed an urgent
application based
on similar facts relied upon in the first so-called urgent
application. Again, an entirely predictable dispute
of fact arose
with charges and counter charges, complaints to the police and
denials of the allegations made to members of the
force. Protection
orders were sought and other residents in the estate were drawn into
the conflict.
16. The parties
should have realised a long time ago that their unbecoming behaviour
ought to be resolved by a mediator or should
be settled in an
appropriate manner. The applications were certainly not urgent. It
is, in addition, quite impossible to deal with
the conflicting
factual averments on paper, particularly those relating to the
attorney’s alleged abuse of the procedure.
The applicants ought
to have realised that there was little chance of succeeding with
motion procedures after the original conflicting
orders were set
aside
17. Even if it
may be said that the applicants are entitled to an interdict in some
form or another, the court retains a discretion
to determine whether
an interdict should issue or not. Given the above circumstances, the
court must clearly exercise its discretion
against the applicants.
The disputes of fact could only be resolved in trial proceedings, the
institution of which would in the
court’s opinion be in
nobody’s interest.
18. In the light
of the aforegoing, the application is dismissed. Costs must follow
the result, even though the first and third
respondent acted in
person for the greater part of the proceedings.
ORDER:
The application
is dismissed with costs.
Signed at
Pretoria on this 18
th
day of February 2014.
E BERTELSMANN
Judge
of the High Court.