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[2009] ZAGPPHC 378
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Masemola v S (A682/09) [2009] ZAGPPHC 378 (26 November 2009)
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
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE NO.: CA22/2014
DATE HEARD: 12 MAY
2014
DATE
DELIVERED: 5 JUNE 2014
In
the matter between:
N.
X. M.
Appellant
and
HENDRIK
PETER JOHANNES VAN DER MERWE
(in
his capacity as executor of the
Estate
Late N. A.
M.)
Respondent
JUDGMENT
EKSTEEN
J:
[1]
N. A. M. (the deceased) operated a very successful funeral parlour
during his lifetime. The business started in Grahamstown
and
later expanded to Port Alfred and thereafter to Port Elizabeth.
The deceased passed away on […….] and the
respondent
herein (the applicant in the Court
a
quo
) was appointed as the executor in
his estate. In due course a dispute arose between the
respondent and the appellant (the
third respondent in the Court
a
quo
) and between the appellant and his
siblings (first, second, fourth, fifth, sixth and seventh respondents
in the Court
a quo
)
relating to the ownership of that part of the business and the
business assets which were situated in Grahamstown. I shall
refer to the parties herein for the sake of convenience as they were
in the Court
a quo.
[2]
The applicant obtained a final interdict that the third respondent
vacate the premises situated at [……………….].
A further interdict was issued restraining the third respondent from
performing a number of business functions on behalf of M.
Funeral
Parlour, ordering him to hand over the registration documents of
vehicles utilised in the business and affording the applicant
access
to the business premises at […..] Street. The third
respondent appeals with leave of the Judge
a
quo
against the granting of the
interdict.
The
factual background
[3]
The deceased commenced business in Grahamstown as a funeral
undertaker during or about 1980 trading as a sole trader under the
name and style of M. Funerals. In due course his son, Linda
Ocean M., the first respondent, took up employment in the business
with the deceased as a salaried employee. In the early 1990’s
the third respondent and his brother Mlungisi, the second
respondent,
began to assist the deceased in the business and by doing so
learnt the trade. When the second respondent
completed his
schooling he formally entered the business with the deceased.
In 1992 the deceased opened a branch in Port
Alfred, still trading as
M. Funerals. The deceased ran both the Grahamstown and the Port
Alfred branches of his business
himself. The business prospered
and during or about 1996 the deceased opened a further branch in Port
Elizabeth.
[4]
During 1999 the first respondent left the business of the deceased
and opened his own funeral business in Fort Beaufort also
trading
under the name and style of “M. Funerals”. The
business of the first respondent was, notwithstanding
the name, not
associated in any manner with that of the deceased. In 2002 the
second respondent too left the deceased’s
employ and went into
a gas business and a construction company for his own account.
He too had no further involvement in
the business of the deceased.
The deceased’s younger son M. M., who passed away in October
2009, then entered the funeral
undertaking business together with the
deceased.
[5]
During approximately 2004 the deceased experienced [….]
difficulties and he relocated to Port Elizabeth. At that
stage
he left the management of the Grahamstown business in the hands of
the third respondent while he, assisted by M., managed
the Port
Elizabeth branch of the business and the Port Alfred branch.
During approximately 2005 the deceased obtained M.
Funeral Parlour CC
and the business of the deceased was conducted through the medium of
and under the name of the close corporation.
There is a dispute
between the parties as to whether the Grahamstown branch of the
business ever formed part of the close corporation
business.
[6]
The applicant, as recorded earlier, is the executor in the deceased
estate. He has no personal knowledge of the conduct
of the
deceased’s business. In the founding affidavit he
contends that prior to the death of the deceased the office
in Port
Elizabeth and the business in Port Alfred were managed jointly by the
deceased and M. He does not dispute that the
business in
Grahamstown was run entirely by the third respondent.
[7]
In the course of the administration of the deceased’s estate
the applicant called a meeting (herein referred to as “the
meeting”) with the first to third respondents and the fifth to
seventh respondents (all children of the deceased), which
he alleges
was to discuss the management of the business. The applicant
avers that at the meeting the third respondent advised
that he and
the deceased had entered into a verbal lease agreement in terms of
which the third respondent would lease the immovable
property
situated at […..] Street, [……], Grahamstown and
Site [……], Grahamstown together with
all the office
furniture, funeral equipment and motor vehicles necessary to conduct
the funeral service in Grahamstown for an amount
of R20 000 per
month.
[8]
The applicant contended that the third respondent had not paid a
single instalment since the death of the deceased. He
says that
he demanded payment of the outstanding rental, by then in excess of
R900 000, and an amount equivalent to the value
of the vehicles
and stock in trade. The third respondent failed or refused to
pay and accordingly he has instructed attorneys
and counsel to
institute action for the recovery thereof.
[9]
By virtue of the precarious financial position of the estate which he
was required to administer he called for offers for the
purchase of
the business. To this end he requested Attorney Noël
Stötter to prepare a valuation of the assets in
the estate.
Attorney Stötter prepared a valuation,
inter
alia
, of the immovable properties, on
oath. He states that the properties in Grahamstown were pointed
out to him by members of
the family (whom he does not identify) but
that the valuations and identifications of the properties were
extremely difficult.
He records that no guarantee is given in
respect of the valuation or identification of the properties.
[10]
In respect of the property at […..] Street, alleged to be on
[……], he recorded that no trace could be
found of this
property registered in the Deeds Office. The property pointed
out to him, however, he records, consists of
a funeral parlour, and a
painted building used as offices.
[11]
Upon obtaining the valuation of assets a contract of sale was entered
into between the applicant and the first respondent in
respect of
that which the applicant considered to be the business of the
deceased, which included the business in Port Elizabeth,
Port Alfred
and Grahamstown and the two immovable properties referred to
earlier. The third respondent remains in possession
of the
properties and in control of the business in Grahamstown and the
applicant contends that this is impeding him in his endeavours
to
honour the contract of sale to the first respondent.
Factual
disputes
[12]
It is evident from the aforegoing that the applicant’s case in
the founding affidavit was to the effect that the third
respondent
had, prior to the death of the deceased, managed the business in
Grahamstown for his own account in terms of a verbal
agreement of
lease entered into between himself and the deceased. By virtue
of his failure to pay the rental the applicant
has instructed
attorneys and counsel to issue summons. This case is founded
entirely on the alleged admission of third respondent
at the
meeting. He does not, however, allege that he has cancelled the
lease agreement.
[13]
In support of the application affidavits were also filed by the first
and second respondents. They confirm that they
attended the
meeting and confirm the correctness of the applicant’s
assertions as to what occurred at the meeting.
They deny,
however, that any verbal agreement of lease was ever concluded
between the third respondent and the deceased.
This assertion
is founded exclusively on the fact that they state that they
communicated with the deceased on a regular basis for
many years and
that the deceased had never mentioned this agreement to them.
For this reason the first respondent alleged
that the third
respondent was a mere manager of the Grahamstown branch of the
deceased’s business at the time that the deceased
passed away.
[14]
It is evident that the supporting affidavits of the first and second
respondents advance a different case to that relied upon
by the
applicant, however, on either version the business enterprise of M.
Funerals in Grahamstown was part of the estate of the
deceased.
I pause to emphasise that the first and second respondents do not
allege any primary facts at all from which the
conclusion can be
drawn that the third respondent was merely a manager. They do
no more than to assert the bald fact.
I shall revert to this
aspect later.
[15]
The third respondent in his answering affidavit denies both the
version of the events which occurred at the meeting as advanced
by
the applicant, and as supported by the first respondent and second
respondents and the version advanced by the first and second
respondents that he had acted merely as a manager of the Grahamstown
branch of the deceased’s business.
[16]
The third respondent states that by early 2005 the deceased had lost
a fair amount of his vigour and had come to the conclusion
that he
could no longer attend to all his affairs as had previously been the
case. At that stage the deceased was maintaining
his daughters
X. (the fifth respondent) and V. (the sixth respondent) and M.
He was also supporting his brother X. and his
sister N. and their
children in exchange for their assistance in the business. The
business was run from [….] Street,
in Tantyi which the third
respondent states is an immovable property belonging to the Hani
Family. In return for the use
of the building the deceased was
also supporting the Hani Family.
[17]
In these circumstances, during or about 2005, so third respondent
avers, the deceased and the third respondent entered into
an
agreement in terms of which the deceased donated the entire business
in Grahamstown to the third respondent on condition that
he continued
to deal with the various matters as the deceased had been doing, that
he continued to discharge the deceased’s
obligations in respect
of his broader family and the Hani Family and that he pay the amounts
owed at the time by the deceased to
Crankshaws, suppliers of marble
and certain other supplies.
[18]
Pursuant to this agreement the third respondent obtained a close
corporation, Nozomi 102 CC and caused his wife to be registered
as
the sole member of the close corporation. A bank account was
opened with Standard Bank in Grahamstown for the close corporation
and the close corporation proceeded to trade, as the deceased had
done before, under the name and style of “M. Funerals”
in
Grahamstown. From 2005 to date, the third respondent contends
that the business has been conducted in the name of the
close
corporation and the deceased had been entirely divested of the
business. It was, furthermore, at approximately this
time that
the deceased rearranged his business structures and acquired M.
Funeral Parlour CC for the conduct of the remaining business
in Port
Alfred and Port Elizabeth. The third respondent therefore
denies that he was a “manager” of the Grahamstown
business or that he hired the business at the time of the passing of
the deceased in 2008. He denies in the circumstances
that the
business in Grahamstown, together with the movable assets therein,
constituted part of the estate of the deceased.
I pause to
record that it is common cause that both M. Funeral Parlour CC and
Nozomi 102 CC were indeed registered in 2005.
[19]
In respect of the meeting (which was held in February 2009) the third
respondent emphatically denies that he had stated to
the applicant or
to any other person present that he had leased the business and the
premises from the deceased. He explains
that after the death of
the deceased divisions arose between himself and his siblings in
respect of the estate of the deceased.
He was accused at the
time of having “hijacked” the business in Grahamstown.
He accordingly welcomed the meeting
which occurred against this
background.
[20]
At the meeting, he says, the applicant introduced himself and
explained that he had been appointed as the executor in the deceased
estate. He advised that the purpose of the meeting was to
facilitate his taking control of the estate. At this stage
the
third respondent contends that the applicant turned to him and stated
that he had been advised that the third respondent had
some
arrangement with the deceased in regard to the Grahamstown business.
This the third respondent confirmed and advised
the applicant of the
arrangement which I have set out earlier herein in terms of which the
Grahamstown business was donated to
the third respondent in 2005.
The third respondent says that the applicant then advised him that he
had been told by third
respondent’s brothers that he, third
respondent, leased the business and the assets from the deceased for
R20 000 per
month. This he denied.
[21]
Whilst there remains a fundamental dispute between the applicant and
the third respondent as to the events which occurred at
the meeting
the applicant confirms in reply that prior to the meeting he had
indeed been advised by the third respondent’s
siblings of the
alleged lease agreement. The third respondent acknowledges his
awareness of the origins of the allegation
of a lease agreement.
He states that during or about 2008 he was visiting the deceased at
his home in […..], Port
Elizabeth when the deceased advised
him that he wished to purchase a property in Walmer, Port Elizabeth.
He was busy at the
time applying to a financial institution for a
loan. The deceased advised that he considered that he would be
unable to show
sufficient income to justify the granting of the loan
and advised, in order to overcome this difficulty, that he intended
to indicate
on the application form that he was receiving rental of
R20 000 in respect of his Grahamstown business. The third
respondent,
anxious to assist his father, agreed to sign the
necessary papers in confirmation of the information which was to be
reflected
on the application form.
[22]
Shortly after the passing of the deceased the third respondent states
that he confided in his mother in respect of this arrangement
between
himself and the deceased. The documentation was, however, a
misrepresentation. His mother confirms his communication
to
her.
[23]
In respect of the premises situated at […..] Street the
applicant makes no attempt to make out any right to the property
save
by reliance on the alleged admission by third respondent at the
meeting to which I have referred. In respect of […..]
Street there is a dispute relating to ownership. The
business of M. Funerals in Grahamstown is conducted from premises
in
[….] Street. The third respondent states, as I have
alluded to earlier, that the property belongs to Kholiwe Winnie
Hani. The Hani Family occupy portion of the improvements on the
property as their home and the remainder thereof is occupied
by the
business conducted by the third respondent. Hani has deposed to
a supporting affidavit. She records that she
is the head of the
Hani household and she confirms that M. Funerals is conducted from
her premises which she declares is, in fact,
[……] and
not […..], as Attorney Stötter had been advised.
She confirms that M. Funerals is conducted
from an area constituting
approximately ¼ to a ⅓ of the area of the said
property and has been so conducted
since the early 1980’s.
She proceeds to record that no rental has ever been paid to the owner
of the property in respect
of the use of the buildings as the
deceased had compensated the family by attending to their transport,
their funerals and the
supply of groceries and that he generally
maintained them. This she confirms that the third respondent
took over and he continues
to do. A Windeed search is annexed
to her affidavit which confirms that the property at [….]
Street (…….),
[…]i is registered in her name.
[24]
In reply the applicant has annexed a VAT invoice in respect of rates
and taxes issued by the Makana Municipality in the name
of the
deceased for the period of September 2012 relating to [....] Street.
The VAT invoice reflects the erf number as […].
Applicant accordingly contends that [....] Street is situated on erf
[….] and not erf […], which is […] Street.
The applicant annexes, however, a Deeds Office search which he
conducted in respect of erf […], [….]. The
Windeed search reflects that the Deeds Office have no records of such
an erf. This is confirmation of the finding of Attorney
Stötter. No supporting affidavit was obtained from any
municipal official in respect of this issue nor is any explanation
provided in respect of the VAT invoice.
Joinder of parties
[25]
What emerges from the papers is that it is the third respondent’s
case that M. Funerals in Grahamstown is conducted from
the property
owned by Hani. Hani has deposed to an affidavit in which she
confirms that she is the owner of the property
from which the
business is conducted and which displays the number of [....]
Street. The records in the Deeds Office do not
contradict her
assertion.
[26]
The third respondent further contends that the business of M.
Funerals is conducted through the vehicle of a close corporation
known as Nozomi 102 CC of which his wife is the sole member. He
acquired the close corporation in 2005 which coincides with
his
version relating to the acquisition of the business during or about
that year.
[27]
The order which was granted by the Court
a
quo
was to the effect that the third
respondent was directed to vacate the premises situated at [....]
Street, Grahamstown within thirty
days of the judgment and that the
third respondent and his employees were directed to allow the
applicant and the first respondent
immediate access to the property.
In addition, as recorded earlier, an interdict was issued restraining
the third respondent
from performing a number of the business
functions on behalf of M. Funerals in Grahamstown.
[28]
In the event that the third respondent and Hani’s contentions
are correct these orders cannot be put into operation without
impacting directly upon the alleged rights of Hani in respect of
[....] Street, Grahamstown and of Nozomi 102 CC in respect of
the
business. It is a well-established principle of our law that
parties who have a direct and substantial interest in the
right which
is the subject matter of the litigation are essential parties to such
litigation. The possibility of such an
interest is sufficient
and it is not necessary for a court to determine first that it in
fact exists. (See for example
Abrahamse
and Others v Cape Town City Council
1953 (3) SA 855
(C) at 859C-F.)
[29]
In
Amalgamated Engineering Union v
Minister of Labour
1949 (3) SA 637
(A) at 651 the following was stated:
“
It
was rather a subtle reasoning, which helped the Court to do what it
no doubt regarded as substantial justice in the peculiar
circumstances of that case, while at the same time enabling it to
stand firm on the two essential principles of law that had to
be
borne in mind, viz. (1) that a judgment cannot be pleaded as
res
judicata
against someone who was not a party to the suit in which it was
given, and (2) that the Court should not make an order that may
prejudice the rights of parties not before it.”
[30]
Later in the same judgment (at 659-660) the following was said:
“
Indeed
it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may have a
direct and
substantial interest without either having that party joined in the
suit or, if the circumstances of the case admit
of such a course,
taking other adequate steps to ensure that its judgment will not
prejudicially affect that party's interests.
… It must
be borne in mind, however, that even on the allegation that a party
has waived his rights, that party is
entitled to be heard; for he
may, if given the opportunity, dispute either the facts which are
said to prove his waiver, or the
conclusion of law to be drawn from
them, or both.”
[31]
In the
Amalgamated Engineering Union
case, supra, two tests were used to decide whether a third party had
a direct and substantial interest. The first was to
decide
whether the third party would have
locus
standi
to claim relief concerning the
same subject matter. (See
Amalgamated
Engineering Union
supra
at 661.) The second was to consider whether a situation could
arise, in which, because the third party had not been joined,
any
order that the court might make would not be
res
judicata
against him, entitling him to
approach the court again concerning the same subject matter and
possibly obtain an order irreconcilable
with the order made in the
first instance (see
Amalgamated
Engineering Union
supra
at 660-661).
[32]
Employing these two criteria I think that Hani may well have
locus
standi
to approach a court and to claim
relief concerning the occupation of [....] Street, Grahamstown.
The judgment of the Court
a quo
is not
res judicata
as against Hani and, were she to approach a court to obtain, for
example, an interdict restraining the applicant and the first
respondent from entering upon the premises, she may obtain an order
irreconcilable with that issued by the Court
a
quo
. She is, in my view, an
essential party to the proceedings. Notice to her would not
suffice.
[33]
By parity of reasoning Nozomi 102 CC would, if the business is
conducted through this vehicle, have
locus
standi
to approach a court and
to obtain an order entitling it to conduct the business activities of
M. Funerals in Grahamstown which is
irreconcilable with the order
issued by the Court
a quo
.
Nozomi 102 CC was clearly also an essential party to the litigation.
[34]
In these circumstances the Court
a quo
ought
, mero motu
,
to have raised the non-joinder of these parties and to have declined
to deal with the matter until these parties had been joined.
In
this regard the Court
a quo
,
I think, erred, however, by virtue of the conclusion to which I have
come below it is not necessary in this instance to refer
the matter
back to the Court
a quo
for
the joinder to be effected and for these parties to be heard before
the application is reconsidered.
Approach
to factual disputes
[35]
It may be seen from the summary of factual disputes which I have set
out earlier that the papers filed in the application are
replete with
factual disputes in particular relating to the events which occurred
at the meeting, the ownership of M. Funerals
in Grahamstown and the
rights of occupation of the immovable property at [....] Street.
[36]
The approach to evidence where final relief is sought in motion
proceedings, as is the case in the present matter, was considered
in
Stellenbosch Farmers’ Winery
Limited v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-G where Van Wyk J said:
“
..
where there is a dispute as to the facts a final interdict should
only be granted in notice of motion proceedings if the
facts as
stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order. …
Where it
is clear that facts, though not formally admitted cannot be denied,
they must be regarded as admitted.”
[37]
This general rule as formulated in the
Stellenbosch
Farmers Winery
case,
supra
,
was reconsidered in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A)
where Corbett JA, as he then was at 634G-635C said:
“
It
seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires
some clarification
and, perhaps, qualification. It is correct that, where in
proceedings on notice of motion disputes of
fact have arisen on the
affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those
facts averred in the
applicant’s affidavits which have been admitted by the
respondent, together with the facts alleged by
the respondent,
justify such an order. The power of the Court to give such
final relief on the papers before it is, however,
not confined to
such a situation. In certain instances the denial by the
respondent of a fact alleged by the applicant may
not be such as to
raise a real, genuine or
bona fide
dispute of fact .... If in such a case the respondent has not
availed himself of his right to apply for the deponents concerned
to
be called for cross-examination under Rule 6(5)(g) of the Uniform
Rules of Court ... and the Court is satisfied as to the inherent
credibility of the applicant’s factual averment, it may proceed
on the basis of the correctness thereof and include this
fact among
those upon which it determines whether the applicant is entitled to
the final relief which he seeks. ...
Moreover, there may
be exceptions to this general rule, as, for example, where the
allegations or denials of the respondent are
so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers.”
[38]
This qualification articulated by Corbett JA accords, I think, with
the approach set out in this court in
Soffiantini
v Mould
1956 (4) SA 150
(E) where
Price JP at 154F-H said:
“
If
by a mere denial in general terms a respondent can defeat or delay an
applicant who comes to Court on motion, then motion proceedings
are
worthless, for a respondent can always defeat or delay a petitioner
by such a device.
It is
necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue
of fact on affidavit
merely because it may be difficult to do so. Justice can be
defeated or seriously impeded and delayed
by an over-fastidious
approach to a dispute raised in affidavits.”
[39]
In the
Soffiantini
case the court was concerned with a general bald denial. The
dictum referred to above is however not restricted to such a
case.
In
Truth Verification Testing Centre
v PSE Truth Detection CC and Others
1998 (2) SA 689
(W) Eloff AJ stated at 698H-J:
“
I
am also mindful of the fact that the so-called 'robust, common-sense,
approach' which was adopted in cases such as
Soffiantini
v Mould
1956
(4) SA 150
(E)
in relation to the resolution of disputed issues
on paper usually relates to a situation where a respondent contents
himself with
bald and hollow denials of factual matter confronting
him. There is, however, no reason in logic why it should not be
applied in
assessing a detailed version which is wholly fanciful and
untenable.”
This,
I think, accords with the closing remarks of Corbett JA in the
passage quoted earlier from
Plascon-Evans
Paints
supra
.
[40]
The approach enunciated by Eloff AJ was approved in the Supreme Court
of Appeal in
Buffalo Freight
Systems (Pty) Ltd v Crestleigh Trading
(Pty)
Ltd and Another
2011 (1) SA 8
(SCA)
at 14B-D where Shongwe JA, having quoted the aforesaid dictum from
the
Truth Verification Testing Centre
case stated:
“
The
court should be prepared to undertake an objective analysis of such
disputes when required to do so. In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)
([2008]
2 All SA 512)
it was suggested how that might be done in
appropriate circumstances.”
[41]
In
Wightman’s
case,
to which Shongwe JA referred in the
Truth
Verification
case,
supra
Heher JA at 375H-376C stated:
“
When
the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer
(or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial
the court
will generally have difficulty in finding that the test is
satisfied. I say ‘generally’ because factual
averments seldom stand apart from a broader matrix in circumstances
all of which need to be borne in mind when arriving at a decision.
A litigant may not necessarily recognise or understand the nuances of
a bare or general denial as against a real attempt to grapple
with
all relevant factual allegations made by the other party. But
when he signs the answering affidavit, he commits himself
to its
contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There
is thus a
serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and engage with facts which
his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen
it should come as
no surprise that the court takes a robust view of the matter.”
[42]
These authorities set out the legal principles which find application
where disputes of facts arise in an application of the
type under
consideration.
Application
of legal principles to dispute of facts
[43]
The Judge
a quo
disposed of the disputes of facts in approximately half a page of her
judgment. No authorities were referred to therein and
no
analysis of the facts was embarked upon. In granting leave to
appeal the Judge
a quo
remarked that she had neglected to record in her judgment that the
test enunciated in
Plascon-Evans
Paints
supra
does not find application. No reasons for this conclusion were
provided. Clearly the applicant herein sought final
relief by
way of application. I can conceive of no basis in logic or in
law to support the conclusion that the dictum set
out above in
Plascon-Evans Paints
supra
does
not apply. To this extent the Judge
a
quo
clearly erred. Mr
Cole
,
who appeared on behalf of the applicant in the appeal, did not argue
the contrary. Rather it is contended on behalf of the
applicant, reliant on the dictum in
Plascon-Evans
and the further cases referred to earlier, that there is no real,
genuine or
bona fide
dispute of fact and that accordingly we should adopt a robust
approach and dismiss the averments made by the third respondent on
the papers alone.
[44]
A real dispute of fact arises most obviously when the respondent
denies material allegations made by deponents on the applicant’s
behalf and produces positive evidence to the contrary. It may
also arise where the respondent admits the applicant’s
affidavit evidence but alleges other facts, which the applicant
disputes. A real, genuine and
bona
fide
dispute of fact can, however,
exist only where the court is satisfied that the party who purports
to raise the dispute has in his
affidavit seriously and unambiguously
addressed the fact said to be disputed. There will, of course,
be instances where a
bare denial meets the requirement because there
is no other way open to the disputing party and nothing more can
therefore be expected
of him (see
Wightman’s
case
supra
at 375G-H).
[45]
I have recorded earlier that the applicant, in his founding
affidavit, relies exclusively on an alleged admission by the third
respondent that he hired the properties at [……] Street
and […..] Street together with all the office furniture,
funeral equipment and motor vehicles necessary to conduct the funeral
service from the deceased. The applicant provides no
version of
the events which occurred at the meeting save to state that during
the meeting the third respondent made these statements.
[46]
The third respondent has categorically denied that he made these
statements. By virtue of the manner in which this communication
has been dealt with in the founding affidavit a bare denial would
probably suffice in respect of this dispute. The third
respondent has not, however, contented himself with a bare denial and
has set out a far more detailed version of the events which
led up to
the meeting and which occurred during the meeting.
[47]
The third respondent, as set out earlier herein, contends that it was
the applicant who had advised him that his siblings (first
and second
respondents) contended that the third respondent maintained that he
had leased the business in Grahamstown. The
third respondent in
answering the case of the applicant sets out a detailed version as to
the origin of the allegation that a lease
agreement came into
existence between himself and the deceased. This cannot be said
to be a case where the third respondent
has rested his case on a bare
or ambiguous denial. In any event all the respondents who have
filed affidavits herein deny
that such a lease agreement existed.
There could be no basis on the papers for concluding that a lease
agreement existed.
The dispute relates only to what occurred at
the meeting.
[48]
The applicant acknowledges in reply that prior to the meeting he had
been advised by the third respondent’s brothers
that the third
respondent alleged that he had leased the property from the
deceased. He did accordingly know of the allegation
prior to
the meeting and he was therefore in a position to have raised it
himself. In these circumstances I do not
think that it
can be said that the denial by third respondent is uncreditworthy nor
that it is palpably implausible, far-fetched
or clearly so untenable
that the court is justified in rejecting it merely on the papers
(compare
Plascon-Evans Paints
supra
at
634I-635D;
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para [55];
Thint
(Pty) Ltd v National Director Public Prosecutions and Others;
Zuma v National Director Public Prosecutions and Others
2009 (1) SA 1
(CC) para [8] - [10] and
National
Director Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290F).
[49]
In the supporting affidavit filed by the first and second respondents
together with the founding affidavit of the applicant
the first and
second respondents aver that the third respondent only managed the
Grahamstown branch of M. Funerals on behalf of
the deceased and the
close corporation. The affidavit as recorded earlier contains
no more than this bald assertion and no
primary facts are alleged in
the founding papers to justify this conclusion.
[50]
The third respondent has set out a detailed version as to how he
became the owner of the Grahamstown branch and explained the
obligations which he assumed as a condition for the donation made by
the deceased. Hani has filed a supporting affidavit
confirming
that the third respondent had discharged these obligations towards
her family. The fifth and sixth respondent
filed supporting
affidavits in reply and neither of them dispute that the third
respondent took over the maintenance responsibility
towards them from
the deceased in approximately 2005. Moreover the broader matrix
of circumstances, which are not disputed,
do not detract from the
version of the third respondent. It is not in dispute that the
deceased withdrew from active participation
in the management of the
Grahamstown branch in 2004. He thereafter, together with
Monwabisi managed only the Port Alfred
and Port Elizabeth branches.
It is not in dispute that in fact the third respondent did acquire
Nozomi 102 CC in 2005 and
caused his wife to be registered as the
sole member thereof. M. Funeral Parlour CC was also established
in 2005 which may
be supportive of the restructuring of the
deceased’s business at the time. There is no evidence of
any transaction
ever concluded by M. Funeral Parlour CC in
Grahamstown or in respect of the alleged Grahamstown branch of the
business of this
close corporation.
[51]
The first, second and fourth to seventh respondents have no knowledge
of the alleged transaction and are unable to dispute
the averments
made by the third respondent on any factual basis. This, of
course, is not conclusive. In
Da
Mata v Otto NO
1972 (3) SA 858
(A)
at 869B-E it was stated:
“
In
regard to the appellant's sworn statements alleging the oral
agreement, it does not follow that because these allegations were
not
contradicted - the only witness who could have disputed them had died
- they should be taken as proof of the facts involved.
Wigmore on
Evidence
,
3rd ed., vol. VII, p. 260, states that the mere assertion of any
witness does not of itself need to be believed, even though
he is
unimpeached in any manner, because to require such belief would be to
give a quantative and impersonal measure to testimony.
The learned
author in this connection at p. 262 cites the following passage from
a decision quoted:
'It
is not infrequently supposed that a sworn statement is necessarily
proof, and that, if uncontradicted, it established the
fact involved.
Such is by no means the law. Testimony, regardless of the amount of
it, which is contrary to all reasonable probabilities
or conceded
facts - testimony which no sensible man can believe - goes for
nothing; while the evidence of a single witness to a
fact, there
being nothing to throw discredit thereon, cannot be disregarded.'”
[52]
On behalf of the applicant it is argued that the version of the
donation advanced by the third respondent is such testimony
which no
sensible man can believe. I am unable to agree. The
undisputed facts show that only Monwabisi and the third
respondent
remained in the management of the business with the deceased after
2002. The first and second respondents had
totally withdrawn
and had pursued their own business interest. Monwabisi, who has
since passed away, remained in the business
with the deceased in Port
Alfred and in Port Elizabeth. The third respondent was, on any
version, exclusively in control
of the management of the Grahamstown
branch. In these circumstances and in the context of the family
affairs I do not think
that the version can be dismissed on the
papers alone. It is not incompatible with the broader matrix of
circumstances which
prevailed at the time and to which I have
referred earlier.
[53]
On behalf of the applicant a rule 35(14) notice was served on the
third respondent’s attorneys prior to filing the applicant’s
replying papers. The third respondent’s attorneys
declined to respond to the notice. The thrust of the argument
on behalf of the applicant in the appeal before us was that the
version of the third respondent falls to be rejected on the papers
alone because the third respondent has provided no documentary
support of the allegations made in respect of his claim and in
particular that he has declined to provide documentation requested in
terms of the provisions of rule 35(14).
[54]
Rule 35(14) provides as follows:
“
(14)
After appearance to defend has been entered, any party to any action
may, for purposes
of pleading, require any other party to make
available for inspection within five days a clearly specified
document or tape recording
in his possession which is relevant to a
reasonably anticipated issue in the action and to allow a copy or
transaction to be made
thereof.”
“
Action”
is defined in rule 1 as “a proceeding commenced by summons”.
The rule does not apply to application
proceedings.
[55]
Furthermore what is required in terms of rule 35(14) is the
inspection of “a clearly specified document”.
The
rule is designed to enable a party to an action to obtain the
production of a specific document of which he has knowledge and
which
he or she can describe precisely. It does not provide a
mechanism whereby a party may, by making use of generic terms,
cast a
net with which to fish for vaguely known documents. (See
Cullinan Holdings Ltd v Mamelodi
Stadsraad
1992 (1) SA 645
(T) at
648F;
The MV Urgup:
Owners of the MV Urgup v Western Bank Carriers (Australia) Pty Ltd
and Others
1999
(3) SA 500
(C) at 515C-I; and
Quayside
Fish Suppliers CC v Irvin & Johnson Ltd
2000
(2) SA 529
(C) at 534E-G.)
[56]
What the applicant sought in the rule 35(14) notice was “proof
of payment to Crankshaws”; “proof of
bank account
in the name of Nozami 102 CC with Standard Bank as at 2005”;
“bank statements of Nozami 102 CC from
the inception to date”;
“proof of accounts with suppliers of coffins in the name of
Nozami 102 CC from 2005”;
“proof of accounts of
Nozami 102 CC with each and every supplier of requirements in the
business from 2005 to date”;
“proof of payment of
Crankshaws and each and every supplier of Nozami 102 CC from 2005 to
date”; “proof
of payment and registration documents
of motor vehicles acquired by Nozami 102 CC from 2005 to date”;
and “proof
of insurance of Nozami 102 CC with insurers in the
industry, more particularly, but not limited to Prosperity Funeral
Administrator
from 2005 to date”. I do not think that any
of these requests relate to a specified document which the applicant
was
able to describe precisely. Furthermore, the test for the
delivery of a document in terms of rule 35(14) is whether the
document
in question is essential, not merely useful, in order to
enable a party to plead. (See
Cullinan
Holdings Ltd
supra
at 647E-F.) The replying affidavit of the applicant records
that first and second respondents advised that none of the family
members or employees ever mentioned the existence of the arrangement
for which the third respondent contends. It proceeds to say
that
applicant’s attorneys served a rule 35(14) notice “to
obtain information” which may verify third respondent’s
averments. This clearly is a mechanism to fish for vaguely
known documents and there has been no argument that the documents
were essential in order to reply to third respondent.
[57]
In the circumstances the notice in terms of rule 35(14) was misguided
and the third respondent was entitled to decline to deal
with it.
Nothing can be made of the rule 35(14) notice and the refusal to
entertain such a notice does not detract from the
bona
fides
of the dispute which has been
raised.
[58]
I pause to record that it would appear that the applicant probably
intended a notice in terms of rule 35(12). The material
portions of rule 35(12) provides:
“
Any
party to any proceedings may at any time before the hearing thereof
deliver a notice … to any other party in whose pleadings
or
affidavits reference is made to any document or tape recording to
produce such document or tape recording for his inspection
and to
permit him to make a copy or transcription thereof. …”
[59]
Rule 35(12) does apply to application proceedings, however, it
requires a party to make available for inspection a document
to which
reference is made in the affidavits filed by that party. It is
true that sub-rule 35(12) authorises the production
of documents
which are referred to in general terms in pleadings or affidavits and
do not require a detailed or descriptive reference
to such documents
(see
Erasmus: Superior Court
Practice
p. B1-260 and the authorities
referred to therein). Reference by mere deduction or inference,
however, does not constitute
a “reference” as
contemplated in the sub-rule. (See
Penta
Communication Services (Pty) Ltd v King
and Another
2007 (3) SA 471
(C) at 476B-C.) I think that the documents or
other forms of proof demanded by the applicant in his notice in terms
of rule
35(14) or fall into the latter category. In the
circumstances he could not avail himself of the provisions of rule
35(12)
either.
[60]
In all the circumstances had the Court
a
quo
approached the disputes of fact in
accordance with the legal principles set out earlier herein then I
consider that it was bound
to find that a
bona
fide
dispute existed in respect of the
ownership of the business which could not be resolved on the papers.
The immovable properties
[61]
I turn to consider the immovable properties. I have alluded
earlier to the fact that the only reference to Site 10, Mpondo
Street
in the founding papers is in the alleged admission by the third
respondent that he had leased these premises from the deceased
and
the valuation thereof by Attorney Stötter. I have already
dealt with the dispute of fact relating to this admission.
It
is in any event common cause between the third respondent and the
remaining respondents, on whose evidence the applicant relies,
that
no such lease was ever entered into. Neither the applicant nor
first and second respondents make any allegation that
the deceased or
M. Funeral Parlour CC ever owned […] Street nor is any other
right to the property alleged. Attorney
Stötter states
merely that the immovable properties which he valued were pointed out
by unidentified family members.
His valuation and description
of this property does not reflect any information from the Deeds
Register of the registered owner
of the property. The applicant
has, in my view, made out no case for an interdict that the third
respondent vacate these
premises. It follows that the applicant
has made out no right in respect of Site […..] Street.
[62]
In respect of [....] Street it is common cause that the property is
not registered in the name of the deceased or M. Funeral
Parlour CC.
The applicant nevertheless contends that the deceased owned the
property. The Deeds Office has no record
of the existence of
such an erf. The ownership of this property is therefore in
dispute.
[63]
The evidence of Hani is that M. Funerals is conducted from a building
on her property which is in fact erf […].
The dogmatic
insistence by the applicant, bolstered only by a VAT invoice in
respect of rates and taxes, that the business is conducted
from erf
[…] is in my view untenable. I have recorded earlier
that no affidavit has been obtained from any municipal
official to
explain the source of the information in the VAT invoice or to verify
even the existence of erf [….].
I am inclined to the
view that no real or
bona fide
dispute of fact exists in respect of [....] Street. The
applicant has accordingly made no case for an interdict that the
third respondent vacate these premises.
[64]
Even if I were incorrect in the view which I hold in respect of
[....] Street, at best for the applicant, there is a
bona
fide
dispute in respect of the
ownership of the premises from which the funeral services is
conducted which cannot be resolved
in the absence of oral evidence.
Conclusion
[65]
In the circumstances, it seems to me that the Court
a
quo
erred in holding that the applicant
had established a clear right to any of the relief sought on the
papers alone. Neither
party requested the matter to be referred
to oral evidence and the test enunciated in
Plascon-Evans
supra
must
therefore be applied. Final relief can only be granted if those
facts averred by the applicant which have been admitted
by the
respondent, together with the facts alleged by the respondent,
justify such an order. In the present matter they clearly
do
not and the appeal must accordingly succeed.
Order
[66]
In the result, the following order is made:
1.
The appeal is upheld with costs ; and
2.
The order of the Court
a quo
is set aside and the following is substituted therefore:
“
The
application is dismissed with costs.”
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
SCHOEMAN
J:
I
agree. It is so ordered.
I
SCHOEMAN
JUDGE
OF THE HIGH COURT
RUGUNANAN
AJ:
I
agree.
S
RUGUNANAN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Appellant:
Adv K Watt instructed by Whitesides Attorneys, Grahamstown
For
Respondent: Adv S Cole instructed by
Messrs Keyter Attorneys, Grahamstown