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[2009] ZAGPPHC 392
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Modumo and Another v Baipone (3619/2007) [2009] ZAGPPHC 392 (27 October 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTH
GAUTENG HIGH COURT, PRETORIA]
CASE
NUMBER: 3619/2007
In
the matter between
MORARE
: SHADRACK
MODUMO
FIRST
APPLICANT
MORARE
: ABRAHAM
PATELA
SECOND
APPLICANT
and
MORARE
: OLIVER
BAIPONE
RESPONDENT
JUDGMENT
KEMP,
AJ:
27
OCTOBER 2009
INTRODUCTION
:
[1]
The Applicants seek interdictory relief
against the Respondent, in respect of words spoken and actions.
Respondent has counter applied"
for interdictory relief albeit
without filing a notice of counter-application, but by incorporating
prayers for relief in his answering
affidavit.
[2]
The dispute in this matter has arisen
because, indisputably, the adoption of two stances has occurred in
the community: The one
stance, as represented by the Applicants and
the other stance, as represented by, inter alia, the Respondent.
[3]
It is undisputable that by virtue of the
two different stances, neither 'group' trusts the other. The decision
I have to make is
whether on the papers as they are before me I can
grant an interdict to the Applicants/or the Respondent.
CONSIDERATION:
[4]
The facts bandied around in the papers reeks of a spat between mamed
partners. It is undeniably so that the First Applicant
had threatened
to Kill the Respondent. The First Applicant states so in his own
papers and that would prima facie be enough grounds
to grant an
interdict. However, the explanation given by the First Applicant, the
fact that he volunteers this information, the
fact that he went to
the Police to tell them that he has threatened the Respondent with
death and the fact that tt happened some
time ago gives the
appearance of water under the bridge. I believe this is a matter that
can be put to bed by the parties themselves
and it is very possible
that if eilher party is interdicted by this Court such an order m»ght
feed the flames of antagonism
[5]
I believe that the best order in the
circumstances would be to grant an interim interdict against both
parties in accordance with
the test propounded in
Webster
v Mitchell
1
[6]
I make the following order:
[1]
Pending the final outcome of this matter:
[1.1]
the Respondent is interdicted and
restrained from :
[1.1.1]
uttering allegations to the effect that the Applicants sold the
Bakgaga Bakopa community's land and/or mineral rights;
[1.1.2]
calling for a boycott of the Tafelkop Whofesale Retailers, also known
as the RNR shop, in Tafelkop;
[1
1.3] uttering words to the effect that the Applicants and/or their
families should be kilted or expelled from the Bakgaga Bakopa
community;
[1.1.4]
uttering words to the effect that the
Applicants are thieves and/or dishonest and/or not !aw-aoxiing
citizens;
[1.1.5]
inciting the Bakgaga Bakopa community to
act violently against the Applicants and/or their familtes; and
[1.1.6]
making false allegations against the
Applicants.
[1.2]
The First Applicant is interdicted and restrained from threatening to
kill ck otherwise harm the Respondent.
[2]
The following aspects are referred to oral evidence for final
determination:
[2.1]
whether the Respondent has uttered
allegations to the effect that the Applicants sold the Bakgaga Bakopa
community's land and/or
mineral rights and a final interdict ought to
be granted against him;
[2.2]
whether the Respondent has called for a
boycott of the Tafelkop Wholesale Retailers also known as the RNR
shop, in Tafelkop and
a final interdict ought to be granted against
him;
[2.3]
whether the Respondent has uttered words to the effect that the
Applicants and/or their families should be killed or expelled
from
the Bakgaga Bakopa community and a final interdict ought to be
granted against him;
[2.4]
whether the Respondent has uttered words
to the effect that the Applicants are thieves and/or dishonest and/or
not law-abiding citizens
and a final interdict ought to be granted
against him;
[2.5]
whether the Respondent has incited the Bakgaga Bakopa community to
act violently against the Applicant and/or their families
and a final
interdict ought to be granted against him.
[2.6]
whether the Respondent has made false
allegations against the Applicants and a final interdict ought to be
granted against him,
and
[2.7]
whether the First Applicant is a real
threat to the Respondent and a final interdict ought to be granted
against him.
[3]
In respect of the presentation of such oral evidence, the following
applies:
[3.1]
unless this Court otherwise orders only those witnesses who have
deposed to affidavits in this application may give oral evidence
in
respect of the abovementioned matters; and
[3.2]
no other witness may be called except
with the leave of this Court or a Judge in Chambers, which leave may
be sought only after
the opposite party has been given reasonable
notice of the date and time when such leave will be sought and such
notification is
accompanied by a summary of the proposed evidence of
the witness in sufficient detail to allow an assessment of the
justification
of avowing the witness to be called.
[4]
The costs of this application shall be reserved for determination the
Court hearing oral evidence.
_____________
KEMP,
AJ
1
1948
(1) SA 1185
(W) at 1189, as qualified Gool v Mmsier of Justice &
Another
1955 (2) SA 682(C)
687 Fin-688v(F)