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[2010] ZAFSHC 87
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PNA Stationeries (Pty) Ltd v River Stationeries CC t/a PNA Parys and Others (4858/2009) [2010] ZAFSHC 87 (18 March 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Application Number :
4858/2009
In
matter between:-
PNA
STATIONERS (PTY) LTD
…..............................
Applicant
and
RIVER
STATIONERS CC T/A PNA PARYS
…...........
First
Respondent
WILLEM
BAREND ABRAHAM BOSHOFF
….........
Second
Respondent
KAREN
ERICA VAN DER WALT
…...........................
Third
Respondent
_____________________________________________________
JUDGMENT
BY:
VAN ZYL, J
_____________________________________________________
DELIVERED
ON:
18 MARCH 2010
_____________________________________________________
The applicant approached
Court by means of application proceedings in which the following
relief as set out in the Notice of Motion
is being sought:
“
1. That the
first, second and third respondents be interdicted and restrained
from carrying on or being interested directly or indirectly,
in the
business as news agent, bookseller or stationer for a period of 18
months after termination of the agreement, namely the
31
st
of August 2009 and within 20 kilometres of the premises of or the
premises of any business franchised by the Applicant. (
sic
).
2. That the first, second and third
respondents be interdicted and restrained from soliciting business as
a news agent, bookseller
or stationer. The words “soliciting
business” are deemed to include responding to invitations to
tender for business
as news agent, bookseller or stationer for
eighteen months from namely the 31
st
of August 2009. (
sic
)
3. Directing the first, second and
third respondents to furnish the applicant with a list of the first
respondent’s clients
and customers as at date of termination.
(
sic)
4. Directing the first, second and
third respondents at their own expense forthwith remove all signs,
whether from the premises,
vehicles or elsewhere, which display the
name or trading name of the applicant. (
sic
).
5. That the respondent be directed to
pay the costs of this application on attorney and client scale.”
[2] The application is
being opposed only by the first and
second respondents.
THE FOUNDING
PAPERS:
One Herman Botha, the
Group General Manager of the applicant, deposed to the founding
affidavit on behalf of the applicant. The
salient facts which appear
from the affidavit, can be summarised as follows:
On 26 June 1997 the
first respondent entered into a franchise agreement (hereinafter
referred to as “
the agreement
”) with PNA
Stationary Franchising Company (Pty) Ltd (hereinafter referred to
as “
the company
”), a copy of which agreement is
attached to the founding affidavit as annexure “HB1”.
The first respondent
at the time of entering into the agreement was
a corporation to be formed and duly represented by second and third
respondents.
Subsequent to entering the agreement the first
respondent was duly incorporated in terms of the Close Corporation
Laws of the
Republic of South Africa and was registered under the
name “
River Stationers CC
”, which traded as PNA
Parys. Also subsequent to entering the agreement, the company was
liquidated. On 26 January 2000
the applicant and the liquidator of
the company entered into a sale of business agreement, whereby the
applicant bought the
franchise business from the liquidated estate.
At the time of purchasing the franchise business the applicant was
duly incorporated
in terms of the Company Laws of the Republic of
South Africa under the name New Adventure Investments 237 (Pty)
Ltd. The applicant
subsequently changed its name to PNA Stationers
(Pty) Ltd, with its details as cited in the current application. By
virtue
of the aforementioned sale agreement, the applicant
effectively became the franchisor in terms of the agreement. Any
reference
in the agreement to “
the company
” or
“
the franchisor”
should therefore be considered
to now refer to the applicant. (When applicable, I will
consequently hereinafter also refer to
the applicant when I refer
to the agreement, except in instances of quotations.)
In terms of the
preamble of the agreement, the applicant is the proprietor of a
business plan and system, which business system
is defined in the
agreement as follows:
“
a method of
conducting the business of a news agency, bookseller, stationer and
related activities under the style of PNA and/or
PNA Stationary
Franchising Company utilising certain trade marks, trade names, trade
secrets, designs, copyright, business know-how
and logos and other
identifiable material, methods, specific style and character of
layout and display of stock in franchised outlets
and operating
manual”.
In terms of the
agreement the applicant appointed the first respondent as exclusive
franchise holder of the business system
in the area. The premises
from which the first respondent became entitled to conduct the
franchised business, is the Pick ‘n
Pay Centre, Parys, Free
State Province.
The agreement deals
extensively with the rights and obligations of the respective
parties thereto and the applicable clauses
were referred to and
recorded in the founding affidavit.
In terms of clause 9.1
of the agreement the first respondent is compelled to pay to the
applicant a royalty of 5,5% plus VAT
on the first respondent’s
turnover, which royalty is to be paid monthly. In terms of clause
13.1.2 of the agreement the
first respondent is furthermore
compelled to pay a monthly advertising levy to the applicant
calculated at 2% plus VAT on the
first respondent’s turnover.
On 19 June 1997 the
second and third respondents signed a deed of suretyship in terms
whereof they jointly and severally bound
themselves as surety and
co-principal debtor in
solidum
with the first respondent to
and in favour of the applicant for the due performance of all
obligations of the first respondent
due and owing by the first
respondent to the applicant by virtue of the agreement. A copy of
this deed of suretyship is attached
to the founding affidavit as
annexure “HB2”.
The second and third
respondents further signed an undertaking as contemplated in clause
18.4 of the agreement (to which I will
again refer later herein) on
19 June 1997. A copy of the undertaking is attached to the
answering affidavit as annexure “HB3”.
In terms
thereof, the second and third respondents, respectively, agreed as
follows:
“…
hereby
bind myself and undertake as against PNA Stationary Franchising
Company (Pty) Ltd (“the franchisor”) that on
termination
of its franchise agreement with a close corporation to be
incorporated (“the franchisee”) of which I am
the member/
shareholder I shall procure and I shall myself ensure that
1. the franchisee shall furnish the
franchisor with a full list of the franchisee’s clients and
customers;
2. neither the franchisee nor I shall
solicit or conduct business dealing with such clients and customers
for a period of 18 (eighteen)
months after termination of this
agreement.” (
sic
)
3.8 The first respondent
has paid royalties and advertising levies to the applicant up until
February 2008. However, it is averred
on behalf of the applicant that
the first respondent has failed to pay the applicant royalties and
advertising levies “
from the end of February 2008, and then
from April 2008 to current date
” with no valid reason. A
letter was addressed to the first and second respondents advising
them of the breach, but first
respondent failed to remedy the breach.
It is alleged on behalf of the applicant that the applicant therefore
became entitled in
terms of clause 18.2.1 of the agreement to cancel
the agreement.
The applicant
subsequently issued summons in the Magistrates Court of Parys for
the payment of the outstanding royalty fees
and advertising levies,
and for a debate of the account from July 2008 to date of judgment
or to the date that the first respondent
ceases trading. The first,
second and third respondents are defending the said action.
On 20 August 2009 the
applicant’s attorneys addressed a letter to the first, second
and third respondents’ attorneys
and the first, second and
third respondents themselves, a copy of which letter is attached to
the founding affidavit as annexure
“HB9”. It is averred
on behalf of the applicant that the applicant effectively
terminated the agreement in this
letter.
In a subsequent letter
addressed to the first, second and third respondents’
attorneys and the first, second and third
respondents themselves,
dated 26 August 2009, the applicant’s attorneys advised the
first, second and third respondents
that they are required to cease
trading as a PNA franchisee on 31 August 2009. This letter also
recorded certain other obligations
of the first, second and third
respondents in terms of the agreement. A copy of this letter is
attached to the founding affidavit
as annexure “HB10”.
The founding affidavit
is then concluded in the last three paragraphs thereof as follows:
“
34.
The first, second and third
respondents have refused and/or neglected to cease trading as PNA
franchisee and are in breach of the
restraint of trade clause as
mentioned in paragraph 6.17 herein.
35.
The applicant has suffered prejudice
due to the conduct of the first, second and third respondents, and
their persistence to trade
under the franchise of the applicant
without compensating the applicant and without the applicant’s
consent.
36.
I submit that the applicant is
entitled to the relief sought in the Notice of Motion.”
APPLICABLE LEGAL
PRINCIPLES:
Applications:
Rule 6(1) determines the
following pertaining to a founding affidavit in application
proceedings:
“
6(1) Save
where proceedings by way of petition are prescribed by law, every
application shall be brought on notice of motion supported
by an
affidavit as to the facts upon which the applicant relies for
relief.”
It is trite that in
application proceedings the affidavits take the place not only of
the pleadings in an action, but also of
the essential evidence which
would be led at a trial. In
TRIOMF KUNSMIS (EDMS) BPK v AE &
CI BPK EN ANDERE
1984(2) SA 261 (WPA) this principle was
stated at 269 G to H in the following words:
“
Die oorsaak
van aksie moet behoorlik uiteengesit word in stukke soos hierdie wat
beide pleitstukke en getuienis kombineer.”
This principle was again
confirmed in
TRANSNET LTD v RUBENSTEIN
2006(1) SA 591
(SCA) at 600 G to H:
“
The
fundamental problems facing Transnet are twofold. In motion
proceedings the affidavits constitute not only the evidence, but
also
the pleadings. Transnet’s answering affidavit is deficient in
both respects.”
In addition to the
aforesaid, the rule is also that the necessary allegations upon
which the applicant relies must appear in his
or her founding
affidavit, as he or she will not generally be allowed to supplement
the affidavit by adducing supporting facts
in a replying affidavit.
This principle was referred to in
JOHN RODERICK`S MOTORS LTD v
VILJOEN
1958 (3) SA 575
(OPD) at 579 C, with reference to
the judgment in Pounta`s Trustee v Lahanas
1924 WLD 67
at 68 where
Krause J said:
“
I think it
has been laid down in this Court repeatedly that an applicant must
stand or fall by its petition and the facts alleged
therin....”
This rule was also stated
in
SHAKOT INVESTMENTS (PTY) LTD v TOWN
COUNCIL OF THE BOROUGH OF STANGER
1976(2)
SA 701 (D&CLD) at 704 G:
“
In
proceedings by way of motion the parties seeking relief ought in his
founding affidavit to disclose such facts as would, if true,
justify
the relief sought and which would, at the same time, sufficiently
inform the other party of the case he was required to
meet.’
In
POSEIDON SHIPS
AGENCIES (PTY) LTD v AFRICAN COALING AND EXPORTING CO (DURBAN) (PTY)
LTD AND ANOTHER
1980(1) SA 313 (D&CLD) the aforesaid
principle was dealt with in an extensive manner and in this regard
the following principles
were laid down or reconfirmed at 315 E to
316 A:
“
Mr.
Feitelberg (who appeared for the applicant) endeavoured to rely on
the material contained in replying affidavits … The
correct
approach to the problem was enunciated clearly by Caney J in Bayat
and Others v Hansa and Another 1955(3) SA 547 (N) at
553 D:
“…
the
principle which I think can be summarised as follows … that an
applicant for relief must (save in exceptional circumstances)
make
his case and produce all the evidence he desires to use in support of
it, in his affidavits filed with the notice of motion,
whether he is
moving ex parte or on notice to the respondent, and is not permitted
to supplement it in his replying affidavits
(the purpose of which is
to reply to averments made by respondent in his answering
affidavits), still less make a new case in his
replying affidavits.”
It is true that in certain
circumstances it would be unjust to confine an applicant to the
contents of his launching affidavit.
… But none of these cases
go the length of permitting an applicant to make a case in reply when
no case at all was made
out in the original application. None is
authority for the proposition that a totally defective application
can be rectified in
reply. In my view it is essential for applicant
to make out a prima facie case in its founding affidavit.”
[7] With regard to
documentation attached to an affidavit, the following requirements
are applicable as formulated in
swissborough
diamond mines (PTY) ltd and others v GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA AND OTHERS
1999 (2) sa 279
(t) at 324 F – G:
“
Regard being
had to the function of affidavits, it is not open to an applicant or
a respondent to merely annex to its affidavit
documentation and to
request the Court to have regard to it.
What
is required is the identification of the portions thereof on which
reliance is placed and an indication of the case which is
sought to
be made out on the strength thereof
.
If this were not so the essence of our established practice would be
destroyed. A party will not know what case must be met.”
(Own
emphasis)
The aforesaid principle
has also been confirmed by the Supreme Court of Appeal in
MINISTER
OF LAND AFFAIRS AND AGRICULTURE AND OTHERS v D & F WEVELL TRUST
AND OTHERS
2008 (2) SA 184
(SCA) at 200 C:
“
It is not
proper for a party in motion proceedings to base an argument on
passages in documents which have been annexed to the papers
when the
conclusions sought to be drawn from such passages have not been
canvassed in the affidavits.”
Restraints of
trade:
Although the onus of
proving that a restraint of trade clause is unreasonable and
therefore unenforceable rests on the party seeking
to avert the
enforcement of the restraint (see
REEVES v MARFIELD INSURANCE
BROKERS CC
1996(3) SA 766 (A) at 776 A to C and
REDDY
v SIEMENS TELECOMMUNICATIONS (PTY) LTD
2007(2) SA 486 (SCA)
at 493 G to 494 A), that onus only comes into play once it has been
established that the applicant in fact
has an interest recognised by
the law and requiring protection by means of the restraint. In
THE
CONCEPT FACTORY v HEYL
1994 (2) SA 105
(TPD) at 112 F the
following was stated:
“
In order to
be enforceable, a contract in restraint of trade must protect some
proprietary interest of the person who seeks to enforce
it...whether
or not such a proprietary interest exists is a question of fact...”
In
AUTOMATIVE
TOOLING SYSTEMS (PTY) LTD v WILKENS AND OTHERS
2007(2)
SA 271 (SCA) at 277 G – 278 A the Supreme Court of Appeal
explained this principle as follows:
“
At issue in
this case, therefore, is whether the appellant does have a
proprietary interest worthy of protection. An agreement in
restraint
of trade is enforceable unless it is unreasonable. It is generally
accepted that a restraint will be considered to be
unreasonable, and
thus contrary to public policy, and therefore unenforceable, if it
does not protect some legally recognisable
interest of the employer,
but merely seeks to exclude or eliminate competition.”
Also see
KWIK
KOPY S.A. (PTY) LTD v VAN HAARLEM AND ANOTHER
1999(1)
SA 472 (WLD).
APPLICATION OF THE
AFORESAID LEGAL PRINCIPLES TO THE CURRENT APPLICATION:
The second respondent
deposed to an answering affidavit on behalf of both himself and the
first respondent. In this answering
affidavit the relief sought was
attacked on various grounds. A replying affidavit was thereupon
filed on behalf of the applicant.
Before I even begin to
consider the issues raised in the answering affidavit, I consider
it, in this instance, apposite to first
ascertain whether the
applicant has made out a
prima facie
case in its founding
affidavit for the relief sought, as required by the relevant case
law to which I referred to earlier herein.
In my view the applicant
has
prima facie
proved the conclusion, as well as the terms,
of the agreement, the deed of suretyship and the written
undertaking.
The basis upon which the
applicant seeks the enforcement of the restraint clause, is squarely
confined to the allegations made
in paragraphs 34 and 35 of the
founding affidavit, which I again record herein:
“
34.
The first, second and third
respondents have refused and/or neglected to cease trading as PNA
franchisee and are in breach of the
restraint of trade clause as
mentioned in paragraph 6.17 herein.
35.
The applicant has suffered prejudice
due to the conduct of the first, second and third respondents, and
their persistence to trade
under the franchise of the applicant
without compensating the applicant and without the applicant’s
consent.”
Although no paragraph
6.17 exists in either the founding affidavit or the agreement, I
accept that the deponent to the affidavit
intended to refer to the
restraint of trade as contained in clauses 17.1 and 17.2 of the
agreement, which reads as follows:
“
RESTRAINT:
17.1 The franchisee warrants that for
the duration of this agreement and for a period of 18 (eighteen)
months after termination
of this agreement it or any of its present
or past members shall not anywhere in the area or within a radius of
20 (twenty) kilometres
of the premises or the premises of any
business franchised by the franchisor and whether as shareholder,
member, beneficiary, consultant,
advisor or employee, and whether
alone, jointly or together with or as agent for any other person,
partnership, company, body corporate,
trust or association of any
nature or in any other manner whatsoever be engaged, interested or
concerned in or with or benefit
from or employ or assist or be
instrumental in
the employment of the business plan or any part
thereof to any business or undertaking relating to the business of
news agency,
bookseller or stationer
.
17.2 The franchisee hereby
acknowledges that the restraint set out in this clause is fair and
reasonable and is also required by
the franchisee itself and goes no
further than is reasonably necessary to protect the proprietary
interests of the franchisor,
the franchisee and the other franchisees
in the business plan and to preserve and protect it
for their
mutual and exclusive benefit.” (Own emphasis)
In my view and on a
plain and proper interpretation of the aforesaid restraint clause,
it is clear that what is prohibited by
it is the “
employment
of the business plan or any part thereof
” to any business
or undertaking relating to the business of news agency, bookseller
or stationer. It does not bar the respondents
from conducting
business as news agent, bookseller or stationer in any other manner
than by the employment of the business plan.
Although “
business
plan
”
is not specifically defined in
the agreement, I accept in favour of the applicant that the reference
to “
business plan
”
is
intended to refer to the “
business
system
”
as defined in the agreement and
which definition I have already quoted in paragraph 3.2
supra.
Contrary to the
aforesaid wording and meaning of the restraint clause, the order
which is sought in prayer 1 of the Notice of
Motion is to interdict
and restrain the respondents from carrying on or being interested in
any
business as news agent, bookseller or stationer for a
period of eighteen months within a radius of twenty kilometres from
the
premises, irrespective of whether the respondents employ the
business system of the applicant in such business, or not. Clearly
this is not what was prohibited by the restraint clause in the
agreement.
Therefore and even if
the averments in paragraphs 34 and 35 of the founding affidavit to
the effect that the respondents refuse
and/or neglect to cease
trading as PNA franchisee are to be accepted as the truth, it still
does not entitle the applicant to
the relief sought in prayer 1 of
the Notice of Motion. The relief sought is not at all justifiable by
the terms of the agreement.
Turning to the relief
sought in prayer 2 of the Notice of Motion, it appears that the
applicant attempts to base this relief on
clause 18.4 of the
agreement, read with the written undertaking, annexure “HB3”.
Clause 18.4 of the agreement reads
as follows:
“
18.4 At the
termination of this agreement, the franchisee shall furnish the
franchisor with a list of the franchisee’s clients
and
customers and the franchisee undertakes not to solicit or conduct any
business dealings as news agent, bookseller, stationer
with
such clients and customers
for a period of 18 (eighteen) months after the termination of this
agreement. The words “soliciting business” are deemed
to
include responding to invitations to tender for business as news
agent, bookseller or stationer. The franchisee shall procure
that
upon signature of this agreement its members or shareholders sign a
similar undertaking in a form approved by the franchisor.”
The wording of the
written undertaking has already been recorded in paragraph 3.6 above,
from which it is clear that the undertaking
entails that second and
third respondents on termination of the franchise agreement, shall
ensure that first respondent furnish
the applicant “
with a
full list of the franchisee’s clients and customers
”
and that neither of the respondents shall solicit or conduct business
dealings with “
such clients and customers
” (of the
applicant) for a period of eighteen months after termination of the
agreement.
From a proper reading
and interpretation of the aforesaid clause, read with the
undertaking, it is evident that what is prohibited
is the soliciting
or conducting of business dealings as news agent, bookseller or
stationer
with clients and customers of the applicant
. It
does not prevent or bar respondents from otherwise soliciting or
conducting business dealings as news agent, bookseller or
stationer
as sought in prayer 2 of the Notice of Motion.
Therefore, once again,
even if the averments in the founding affidavit that the respondents
“
refuse and/or neglect to cease trading as PNA franchisee
”
are to be accepted, the terms of the agreement, read with those of
the undertaking, do not entitle the applicant to the
relief sought
in prayer 2 of the Notice of Motion.
When I, during the
hearing of this application, pointed out the aforesaid
contradictions between the terms of the agreement and
the relief
sought in prayers 1 and 2 of the Notice of Motion, Mr. Reinders, on
behalf of the applicant, conceded, and in my view
rightfully so,
that the said relief sought is irreconcilable with and not justified
by the terms of the agreement.
Moreover and even if the
application was to be considered on the basis that the relief sought
in prayers 1 and 2 of the Notice
of Motion is or was intended to be
in accordance with the wording of the agreement and the undertaking,
it is still to be concluded
that the applicant has failed to make
out a
prima facie
case in this regard in its founding
affidavit. Considering the applicable legal principles referred to
earlier herein, the applicant
failed to make a single averment with
regard to the existence or nature of its alleged protectable
interest which necessitates
the enforcement of the restraint of
trade. When confronted with this failure of the applicant, Mr.
Reinders submitted that such
protectable interest of the applicant
is evident from the terms of the agreement as such. In support of
his contention he, for
instance, referred to the terms of clause
12.2 of the agreement which specifically refers to the “goodwill”
and “trademarks”
which form part of the business system
of the applicant.
In my consideration of
the said contention of Mr. Reinders, I found that in addition to the
aforesaid paragraph 12.2, further references
to trademarks, trade
secrets and alike appear in the agreement, as for example in the
definition of “business system”.
However, although some of
the said clauses have been identified on behalf of the applicant in
the founding affidavit, no averment
has been made as to the reliance
which is placed and the case which is sought to be made out on the
strength thereof, as necessitated
by the relevant case law. Therefore
I cannot consider those references in the agreement to have been
properly put before me in
evidence. Moreover, no facts or evidence
whatsoever were advanced in support of the alleged protectable
interest of the applicant
as reflected in the agreement. Because of
this patent deficiency in the founding papers of the applicant, it is
not necessary to
consider the merits of the arguments advanced by Mr.
Fourie, on behalf of the first and second respondents, to the effect
that
the applicant, as a franchise holder and with no business in the
applicable area, does in fact not possess any protectable interest.
The applicant
consequently dismally failed in making out a
prima facie
case
in its founding affidavit for the relief sought in prayers 1 and 2
of the Notice of Motion. In the absence of a
prima facie
case
in the founding affidavit, there is no need to consider the
averments made in opposition of the application and/or the averments
made in the replying affidavit. The averments in the replying
affidavit cannot be used to make a case in reply where no case
at
all was made out in the founding affidavit. In this instance, I may
add that not even a consideration of the averments in
the replying
affidavit can ever entitle the applicant to the relief sought in
prayers 1 and 2 of the Notice of Motion.
The relief sought in
prayer 3 of the Notice of Motion pertaining to respondents’
obligation to furnish the applicant with
a list of the first
respondent’s clients and customers as at date of termination
of the agreement, is apparently on the
terms of clause 18.4 of the
agreement, read with the terms of the written undertaking, both of
which I have already referred
to above. However, although the said
clause and written undertaking were referred to in the founding
affidavit, once again no
facts were averred as to the case which the
applicant seeks to make out on the strength thereof and/or the
conclusions to be
drawn from the said stipulations. It certainly is
not the duty of the Court to do so.
Consequently, in the
absence of a
prima facie
case, the response of the first and
second respondents in their answering affidavits is not be
considered, even though the first
and second respondents indicated
that they have no objection to comply with the said relief,
especially because the first and
second respondents at the same time
specifically indicated that they do not concede that the applicant
is entitled to the list
in question.
In terms of prayer 4 of
the Notice of Motion the applicant seeks an order that the
respondents be ordered to remove all signs,
whether from the
premises, vehicles or elsewhere, which display the name or trading
name of the applicant and to do so at respondents’
expense. In
the founding affidavit reference was made to paragraph 19.4 of the
agreement, the relevant part of which for purposes
of the relief
sought, read that upon termination of the agreement “
the
franchisee shall, if required to do so by the franchisor, at its own
expense forthwith remove all signs, whether from its
premises,
vehicles or elsewhere, which display the name PNA or PNA Stationary
Franchising Company or which refer in any way to
the trade names of
the franchisor …
”.
Annexure “HB9”
attached to the founding affidavit, which recorded a number of
clauses of the agreement, also recorded
the contents of clause 19.4
of the agreement, but without any request or demand to in fact remove
such signs.
In the so-called letter
of demand, attached to the founding affidavit as annexure “HB10”,
the following was stated:
“
3. Your
clients must then remove all the PNA signage on the 31
st
of August 2009,
before
close of business
at your clients’ own costs.
4. Failure to remove such signage will
result in our client arranging for the removal of the signage at your
clients’ expense
and our client reserves the right to charge
your client R500.00 for every day after the 31
st
of August
2009, that the signage is still on the premises or on your clients’
vehicle.”
Save for the aforesaid,
not a single averment was made in the founding affidavit to the
effect that the relief sought is on the
strength of clause 19.4. Nor
was any allegation made with regard to the actual factual position
of such signs at the date of
the signing of the affidavit.
Considering that the applicant in the letter of demand requested the
respondents to remove the
signage, but at the same time indicated
that should the respondents fail to do so, the applicant will
arrange for the removal
of the signs, there is no indication
whatsoever that the said signs have not in the meantime been
removed, whether by the applicant
or by the respondents. From the
wording of the letter of demand, in the absence of any allegation to
the contrary, one has to
conclude that the applicant would in the
meantime have arranged for the removal of the signs.
The fact that an
allegation was made in the replying affidavit averring that PNA signs
are in fact still on display at the business,
substantiated by two
photographs, does not assist the applicant. This averment should have
been made in the founding affidavit
and no reason whatsoever has been
advanced by or on behalf of the applicant why this was not done.
[27] The applicant has
therefore once again failed to put proper evidence before Court in
its founding affidavit in support of the
relief sought. Consequently
the applicant is not entitled to the relief sought in prayer 4 of the
Notice of Motion.
COSTS:
Although Mr. Reinders
made certain submissions pertaining to costs should some of the
relief sought be granted, those submissions
have become irrelevant
in view of my findings alluded to above.
I am of the view that
there is no reason why the costs should not follow the outcome of
the application.
The only remaining issue
to be considered is whether such costs should be ordered on a scale
as between attorney and client as
requested by first and second
respondents in their answering affidavit. Mr. Fourie contended that
the applicant was reckless
in its approach by making unsubstantiated
allegations under oath, in the absence of any evidence in support
thereof.
That the Notice of
Motion, read with the founding affidavit, was very poorly drafted is
evident from the findings I have already
made herein. The founding
affidavit properly and convincingly set out the background to the
conclusion of the agreement and the
terms of the agreement. With
regard to the essence of the application and the relief sought,
however, the founding affidavit
dismally failed to conform to the
requirements of a founding affidavit. Suffice it to say that the
mere recording of the terms
of the agreement, followed by the two
sentences in paragraphs 34 and 35 of the founding affidavit, cannot
be considered to be
in accordance with the requirements of an
application to the effect that the affidavits take the place not
only of the pleadings
in an action, but also of the essential
evidence which would be led at a trial; hence, the necessity to set
out the evidence
in support of the application and to do so in the
founding affidavit as such. Although the replying affidavit was a
seemingly
brave attempt to make out a case in reply when no at all
was made out in the founding affidavit, it could not rectify the
totally
defective application. However, having said that, I am not
convinced that I can conclude that the poorly drafted application
was necessarily as a result of any reckless conduct by or on behalf
of the applicant. In the exercise of my discretion I am not
convinced that the circumstances justify a special costs order.
[32] Consequently the
application is dismissed with costs.
_______________
C. VAN ZYL, J
On behalf of applicant:
Adv. S.J. Reinders
On instructions of:
Honey Attorneys
Bloemfontein
On behalf of first and
second respondents: Adv. J.A. Fourie
On instructions of:
Stander Venter &
Kleynhans
Bloemfontein