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[2013] ZAECMHC 13
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Nakisa Service Station v BS Titus Holdings (Pty) Ltd (1899/12) [2013] ZAECMHC 13 (1 August 2013)
COURT
JUDGMENT
1
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – MTHATHA)
CASE No: 1899/12
In the matter between:
NAKISA SERVICE STATION
and
BS TITUS HOLDINGS (PTY) LTD
JUDGMENT
BROOKS AJ
INTRODUCTION
[1] The applicant is a close corporation which has launched an urgent
application against a company. It seeks leave to proceed
in terms of
Rule 6 (12) of the Uniform Rules of Court, a spoliation order in
respect of all the property situate at 5 Richardson
Road, Dutywa,
(“the premises”),a final interdict against the respondent
and any persons acting on its behalf or under
its authority
associated with free and undisturbed use of the premises; and a costs
order on the scale as between attorney and
client.
[2] The application is opposed. A full set of affidavits has been
filed.
BASIS OF OPPOSITION
[3] One of the bases of the opposition to the application is that the
applicant has failed to make out a case in its founding affidavit,
and that the application should be dismissed in the result
[4] In similar vein, the opposition criticises the absence of any
allegation on the founding affidavit demonstrating that the applicant
resolved to bring the present proceedings. In reply the applicant
annexes an appropriate resolution to the replying affidavit.
THE FOUNDING AFFIDAVIT
[5] In the founding affidavit the applicant alleges the spoliation by
a group of persons led by the director of the respondent,
one Philiso
Titus. The founding affidavit contains allegations relating to the
involvement of this person as communicated to the
deponent by one
Sotondoshe. The latter files a brief confirmatory affidavit, which
contains no independent allegations of substance.
In answer the
respondent, through its director, denies any involvement with the
spoliation. Its director states under oath, that
she was nowhere near
the premises on the day in question being at work all day in Ngcobo.
In reply the applicant confesses that
it transpires that the
individual identified as the director of the respondent leading the
group in fact is that person’s
grandmother, one Zingisa Titus.
The replying affidavit further annexes three confirmatory affidavits.
5.1. The first by one Mpingelele Nteleza confirms an allegation in
the replying affidavit to the effect that Zingisa Titus is well
known
to her and was seen by her leading the group who welded the entrance
to the premises shut.
5.2. The second is in identical terms by one Mpateli Maki who
confirms the same observation.
5.3. The third is by one Patrick Sitonana Mapoyi who is alleged in
the replying affidavit to have provided the welding services
at the
request of Zingisa Titus. Importantly this is recorded in the
replying affidavit as being something that Mapoyi told the
deponent.
A copy of a relevant invoice is attached.
[6] It is the applicant’s argument that the error in
identification is irrelevant. The deponent relies on the assertion in
the replying affidavit that the circumstantial evidence points to an
involvement on the part of the respondent to the exclusion
of any
other reasonable probability. Nothing connects Zingisa Titus to the
respondent but conjecture. This is based upon a family
connection and
perhaps a history that the late husband of Zingisa Titus was a former
director of the respondent. It is trite that
an applicant must make
out a case in the founding affidavit.
National Council of
Societies for the Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008
5 SA 339
(SCA) at 349 A to
B
. The case in the
founding affidavit is the case which the respondent is called upon to
meet. The applicant must stand or fall by
its petition and the facts
alleged therein.
Director of Hospital Services v Mistry
1979
(1) SA 626
(A)
at 635 H
. There is good and obvious
reason for this. In an application for final relief such as the
present, particularly involving an interdict,
the Court will consider
the entitlement to such relief upon a consideration of the facts
alleged in the founding affidavit which
are admitted by the
respondent in the answering affidavit and the facts alleged by the
respondent therein
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634
.
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290 D to E
.
[7] Mr Levine who appears on behalf of the applicant, contends that
this matter falls into the open category of exceptional cases,
where
the rule regarding the need to make out a case in the founding
affidavits can be relaxed. This obviously is within the discretion
of
the Court. He argues that the urgency in the matter, and the nature
of the error, and the explanation offered therefor in the
replying
affidavits, are factors of assistance to the applicant in seeking
such indulgence. Reliance is placed on
Shepherd v Mitchell
Cotts Seafreight (SA) (Pty) Ltd
1984 (3) SA 202
(T),
a
full bench decision, in which on appeal the fate of an application to
strike out a replying affidavit in sequestration proceedings
was
reconsidered. In that matter new material raised in the answering
affidavit prompted the new material to be introduced by the
applicant
in reply. The respondent in the matter sought leave to file a further
affidavit. The application for leave to introduce
a further affidavit
was apparently overlooked in the
court a quo
and the
application to strike out the new material in the replying affidavit
was granted. The appeal Court held that the decision
ought to have
been different with leave being given to file the further affidavits
from the respondent, consequent upon the application
seeking such
leave and the concomitant dismissal of the application to strike out.
[8] Plainly the circumstances in this matter are different.
Whilst the Court may be more lenient where new material is introduced
into the replying affidavit as a consequence of allegations
made on
behalf of a respondent in an answering affidavit, at the end of the
day the enquiry remains whether or not the applicant
knew of the
facts at the time when the founding affidavit was prepared and simply
didn’t include them, or ought reasonably
to have ascertained
them before launching proceeding.
Driefontein Consolidated GM
Limited v Schlochauer
1902 TS 33
at 38
. I am of the
view that in this matter the applicant has failed to make out a case
in its founding papers. The manner in which it
is essentially based
on hearsay allegations is not assisted by a confirmatory affidavit,
which itself contains no allegations of
substance. The crucial
information potentially linking the mischief complained of to the
respondent is demonstrated in the answering
affidavit to be
incorrect. The respondent met the case it was called upon to meet
without the benefit of the full period of time
normally afforded a
respondent by the provisions of Rule 6 of the Uniform Rules of Court.
It did so in a satisfactory manner. I
am of the view that there is
substance in the argument advanced by Mr Zilwa who appeared on behalf
of the respondent to the effect
that one would have expected the
applicant to make certain of the facts which were communicated to it
by the deponent who deposed
to the confirmatory affidavit in the
founding papers, before embarking upon the issue of the urgent
application with important
consequences
ABSENCE OF RESOLUTION
[9] It is incumbent upon an applicant which is a legal persona such
as a company or close corporation to place evidence before
the Court
that the applicant has resolved to institute proceedings, and that
the proceedings are instituted at its instance. For
obvious reasons
this should be set out in the founding affidavit.
Mall Cape
(Pty) Limited v Merino Koȍperasie Beperk
1957 (2) SA
347(C)
at 351 H
. The complete absence of any reference to this in
the founding affidavit is different from a situation where a Court
may permit
presentation of the evidence of such a resolution as an
annexure to the replying affidavit clarifying a challenge raised in
the
answering affidavit. Where the basic allegation as to its
existence has been made in the founding affidavit but the respondent
challenges the veracity of it is a circumstance different from the
one before me.
Moosa and Cassim NNO v Community Development
Board
1993 SA 175
(A) at 180 H to 181 C
.
FINAL RELIEF
[10] The factual allegations in the founding affidavit, which are
admitted in the answering affidavits, as read with the allegations
in
the answering affidavits do not entitle the applicants to final
relief, either for a spoliation order or a final interdict against
the respondent. A Court will not permit an applicant to make out a
case in reply, where no case at all was made out in the original
application.
Poseidon Ships Agencies (Pty) Ltd v African
Coaling and Exporting Co (Durban) (Pty) Ltd
1980 (1) SA
313
(D) at 316 A
. I am unable to accede to the invitation
extended by Mr Levine to draw reasonable and necessary inferences
from the skeleton of
the founding affidavit to the benefit of the
applicant. I am of the view that an equal number of reasonable
inferences are available
to be drawn in favour of the argument
advanced by Mr Zilwa on behalf of the respondent, indicating that
Zingisa Titus may well
have been on a frolic of her own unconnected
with any direction or control emanating from the respondent.
Obviously the existence
of reasonable and possible inferences which
are adverse to those sought by the applicant must cancel out the
equation.
COSTS
[11] What remains is the issue of costs. The applicant sought costs
on a scale as between attorney and client. In seeking the dismissal
of the application the respondent seeks a similar costs order. The
Court has a wide discretion to make an appropriate costs order
including an attorney and client costs order, which is punitive in
nature. The exercise of this discretion depends upon the facts
and
circumstances of the matter.
Rail Commuter Action Group v
Transnet Ltd t/a Metro Rail No 1
2003 (5) SA 518
(C) at
589 F to G
. I am not persuaded that such an order would be
appropriate in the circumstances of this matter. Whilst I find myself
unable to
find in favour of the applicant on the basis of the
fundamental error in the papers, I do not consider that the decisions
made
in the conduct of the matter thereafter amount to anything more
than perhaps errors of judgment, which would not attract the censure
of this Court.
ORDER
[12] In the result the following order will issue:
1. The application is dismissed.
2. The applicant is directed to pay the costs of the application on
the scale as between party and party.
______________
R.W.N. BROOKS
JUDGE OF THE HIGH COURT (ACTING
)
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION - MTHATHA) CASE No : 1899/13
In the
matter between:
NAKISA
SERVICE STATION
and
B S TITUS
HOLDINGS (PTY) LTD
PRESIDING JUDGE : BROOKS AJ
ON BEHALF OF THE APPLICANT : ADV LEVINE
ON BEHALF OF THE DEFENDANT : ADV ZILWA
INTERPRETER : NOT STATED
STENOGRAPHER
: MS J NOMKUSANE
CONTRACTOR
:
IKAMVA VERITAS TRANSCRIPTION
SERVICES CONSORTIUM
4
PALM PLACE, BEACON BAY, EAST LONDON
P
O BOX 15236, BEACON BAY, EAST LONDON
Tel:
(043) 748-2606 Fax: (043) 748-5665 Cell: 083
642
3641
/…