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[2011] ZAFSHC 98
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Reahilwe Funeral Homes CC and Another v Moekoa and Others (1745/2011) [2011] ZAFSHC 98 (7 June 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Application No.: 1745/2011
In the matter between:
REAHILWE FUNERAL HOMES CC
…....................................................
1
st
Applicant
SECHABA MOEKOA
…..........................................................................
2
nd
Applicant
and
MOSALA ELIAS MOEKOA
…............................................................
1st
Respondent
NTHABISENG ELIZABETH MOEKOA
….........................................
2nd
Respondent
PHOLOANA BULA MOEKOA
….......................................................
3rd
Respondent
RETHABILE MOEKOA
…..................................................................
4th
Respondent
___________________________________________________________________
JUDGMENT:
MOLEMELA, J
___________________________________________________________________
HEARD ON:
2 JUNE 2011
___________________________________________________________________
DELIVERED ON:
7 JUNE
2011
___________________________________________________________________
[1] This is a return day of a rule
nisi
granted by this court in terms of which the respondents
were interdicted and restrained from entering the business premises
of
the 1
st
applicant (in accordance with par 4.1 of the
Notice of Motion); from interfering in any manner whatsoever with the
affairs, employees
and management of the 1
st
applicant (in
accordance with par 4.2 of Notice of Motion); and staying the
protection order issued by the Magistrate’s Court,
Witsieshoek,
under case no 101/2011, against the 2
nd
applicant (in
accordance with par 4.3 of Notice of Motion).
[2] It is common cause that all the
parties in this matter are related to one another: the 2
nd
applicant is the 1
st
and 2
nd
respondents’
son and is a sibling to the 3
rd
respondent as well as to
the fourth respondent’s husband. The applicants’ case is
that the 2
nd
applicant is the sole member of a 1
st
applicant, a close corporation that conducts the business of a
mortuary at Boiketlo Village in Witsieshoek. According to the
applicants,
the property from which the mortuary business is
conducted was allocated to the 2
nd
applicant by the
village chief, viz M E Mopeli. I will return later to this point.
According to the applicant the 1
st
, 3
rd
and 4
th
respondent
inter alia
changed the locks to the doors of the
business premises, the 1
st
respondent tried to deny the
2
nd
applicant access into the business premises and 1
st
,
2
nd
and 3
rd
respondents interfered with burial
proceedings.
[3] While the respondents admitted
that the 2
nd
applicant was indeed the sole member of the
1
st
respondent, they denied that the mortuary business was
conducted by the 1
st
applicant exclusively. It is the
respondent’s case that when the 1
st
applicant’s
business ran into financial difficulties, it was agreed amongst the
parties that shareholding be granted to the
respondents, or at least
some of the respondents, after which certain cash and assets were
contributed to the business, which was
thereafter run as a family
business. The applicants, in their replying affidavit did not deny
that certain amounts of money and
assets like a motor vehicle and
equipment were made available to the business but denied that the
mortuary was run as a family
business. I shall return later to this
aspect.
[4] I now turn to
deal with the documents attached to the founding affidavit as proof
that the business premises were allocated
to the 2
nd
applicant and thus explaining the 2
nd
applicant’s title to the property concerned.
The respondents, in their answering affidavit vehemently denied that
the business
site in question was allocated to the 2
nd
Applicant by the chief. They also questioned the
authenticity of the aforesaid documents and attached a supporting
affidavit deposed
to by the very same chief who, according to the 2
nd
applicant, allegedly allocated the business
premises to the 2
nd
him
(2
nd
applicant).
Surprisingly in the chief’s affidavit she vehemently denies the
applicant’s averments and in fact supports
the 1
st
respondent’s averment that the property in
question was allocated to him.
In specific response to the 2
nd
applicant’s averment that he personally visited the chief to
apply for the business site in question and that the documents
attached as SM1, SM2 were issued by the chief, the chief deposed as
follows:
“
3.7
According to the affidavit signed by the second applicant, I had
written certain documents which seem to be a permission from
me to
allocate a site to Sechaba Moekoa. I wish to deny totally that the
said documents were written by me. I have no knowledge
of the origin
of those documents.
3.8 The first time I knew
the second applicant herein was around March 2011 when he came to me
with his wife and asked me to change
the documents and write his
names as the rightful owner of the said site. I refused blatantly to
do such an act and made it clear
to him that I would not be part of
such a collusion;
3.9 Further I wish to
state that the stamp that has been used in the documents that I
referred to in 3.7 herein above is not mine.
I am only allowed to use
stamp that is inscribed “Boiketlo Village”.
3.10 Lastly, as far as I
know the site that is in dispute was allocated to Mr Mosala Moekoa.”
While it is clear that the chief’s
averments come down to allegations
of fraud against
the 2
nd
applicant,
the 2
nd
applicant did not deal with
such averments at all in the replying
affidavit.
[5] Counsel for the applicant (Adv.
Greyling) argued that even though there is a dispute of fact
pertaining to the ownership of
the property on which the business was
being conducted, this did not constitute a material dispute of fact
as it only relates to
an ancillary issue which has no bearing on the
applicants’ clear right in respect of its occupation of the
business premises.
I disagree with this submission because this
aspect is integral to par 4.1 of the interim order, relating to a
prohibition to the
respondents from entering the premises. The 1
st
applicant’s claim to the right to occupy the premises on the
basis of ownership has been denied by the very chief who allegedly
allocated the land to him.
[6] In the face of the chief’s
denial that the land in question was allocated to the 2
nd
applicant, the documents marked SM2, SM3 and SM4 relied upon by the
2
nd
applicant have no value for the applicants. It
therefore stands to reason that the facts averred in the applicants’
affidavits
pertaining to ownership of the business premises and
admitted by the respondents do not justify the granting of a final
order pertaining
to paragraph 4.1 of the Notice of Motion. See
PLASCON EVANS PAINTS LTD V VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634 H-I.
[7] Furthermore, as the applicants’
only basis for occupation of the premises was founded on ownership
and no other ground,
the effect of the chief’s disavowal of the
authenticity of the documents relied on by the applicants is that the
applicants
have fallen short not only of showing a clear right to
occupy the said premises, but they have also fallen short of showing
any
justification for the barring of the respondents from entering
those premises. This obviously adversely impacts on the proof of
the
“clear right” requirement of the final interdict in
respect of paragraph 4.1 of the Notice of Motion.
[8] With regards to paragraph 4.2 of
the Notice of Motion, it is not in dispute that the 2
nd
applicant is the sole member of the 1
st
applicant. The
separate existence of the 1
st
Applicant as an entity has
therefore not been denied. In my view, the averment that the mortuary
was being run as a family business
as referred to in paragraph 3
above does not detract from the fact that the 1
st
applicant, being a close corporation, was a separate legal
personam
.
This is confirmed by the 1
st
respondent’s averment
that certain cash was paid “into
the account of the first
applicant . . .
on the understanding that all my children would
benefit
from the business of the 1
st
Applicant”.
(My emphasis).
[9] As the separate existence of the
1
st
Applicant has been acknowledged by the respondents,
there is no reason why the 2
nd
Applicant should, as the
1
st
Applicant’s sole member, not be allowed to have
a sole say in the 1
st
Applicant’s own affairs and
management, irrespective of whether the 1
st
Applicant is
operating in association with another business entity or not. As I
see it, this finding in no way affects the respondents’
rights
in respect of the affairs of the jointly-owned part of the business
that they can identify.
[10] With regards to paragraph 4.3 of
the Notice of Motion, Mr Fourie, on behalf of the respondents, argued
that the High Court
has no jurisdiction to set aside an order granted
by the Magistrate’s Court except by way of appeal and review
proceedings.
The only exception, so the argument went, is where the
particular order made by the Magistrate relates to the interests of
minor
children, in which event the High Court will have an inherent
power to intervene. Mr Fourie argued that insofar as my colleague,
Wright J,’s intervention did not relate to minor children, he
accordingly erred by granting an
interim
order suspending the
protection order granted by the magistrate. Mr Fourie argued that the
rule
nisi
ought to be discharged on this basis alone. In view
of the fact that the rule
nisi
will automatically be
discharged once this court gives final judgment in this matter, which
I will be doing
infra
, I do not deem it necessary to make any
finding in respect of the legality or otherwise of my colleague’s
interim
suspension of the protection order.
[11] With regards to the issue of
costs, the applicants have only been partially successful in this
application. In my view, an
appropriate order in the circumstances of
this case will be one ordering each party to pay its own costs.
[12] I therefore make the following
order:
The rule
nisi
in respect of
par 4.1 and par 4.3 of the Notice of Motion is discharged.
The rule
nisi
in respect of
par 4.2 of the Notice of Motion is confirmed.
Each party is to pay own costs.
__________________
M. B. MOLEMELA, J
On behalf of the applicants: Adv. J.
A. Fourie
Instructed by:
Khalaki Attorneys
BLOEMFONTEIN
On behalf of the respondents: Adv. D.
Greyling
Instructed by:
Motaung Attorneys
BLOEMFONTEIN
/EB