Schoemanpark Golf en Ontspanningsklub v Khethelo (2907/2006) [2006] ZAFSHC 163 (2 November 2006)

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[2006] ZAFSHC 163
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Schoemanpark Golf en Ontspanningsklub v Khethelo (2907/2006) [2006] ZAFSHC 163 (2 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 2907/2006
In
the matter between:-
SCHOEMANPARK
GOLF EN ONTSPANNINGSKLUB
Applicant
versus
JABULANE
KHETHELO
Respondent
_____________________________________________________
HEARD
ON:
26
OCTOBER 2006
_____________________________________________________
JUDGMENT
BY:
H.M.
MUSI J
_____________________________________________________
DELIVERED ON:
2
NOVEMBER 2006
[1] This is an
application for a final interdict. The applicant is a golf and
entertainment club registered as a section 21 company.
It has by a
resolution of its board of directors passed on 2 June 2006,
authorised its manager, Mr. Jacobus Cornelius Louw (Louw),
to launch
the instant application and to attest to the necessary affidavit and
to do the necessary to prosecute the application.
The applicant
seeks the following orders against the respondent:
“
1. Prohibiting the Respondent to be
on the premises of the Applicant (the golf course, restaurant, club
house, rugby, bowls, tennis,
jukskei and archery) situated at the
Schoemanpark Golf Club, Maselspoort Road, Bloemfontein) save with
permission of the Club Manager
(presently JACOBUS CORNELIUS LOUW);
2. Prohibiting
the Respondent to play golf on the golf course of the Applicant,
namely Schoemanpark Golf Club, without permission
of the Club Manager
(presently JACOBUS CORNELIUS LOUW);
3. Costs
of the Application;”
[2] In the course of
argument, Mr. Reinders, who appeared for the applicant, indicated
that the applicant would abandon prayer 1 and
contend only with
prayers 2 and 3. Counsel explained that prayer 1 is rather sweeping
and it was not the applicant’s intention
to prohibit the respondent
from being on its premises as such. The aim of the application was
to stop the respondent from using
the applicant’s grounds to play
golf, without complying with the applicant’s rules.
[3] The applicant’s
case, as made out in its founding affidavit, is briefly as follows:
The right to be on its
premises and to use its facilities especially playing golf, is
restricted to members. However, even such
members must, when wishing
to play golf, report to the club house and pay the stipulated fee for
the day before they can play. It
is a condition of membership that
they must pay before they can play on any particular day. To become
a member, a person must apply
and comply with all the requirements
for membership before being accepted. However, visitors are
accommodated and would be allowed
to play provided they make prior
arrangements and pay the fees prescribed for visitors, which are
substantially more than that paid
by members.
[4] The founding
affidavit goes on to aver that the respondent is not a member and has
never applied for membership. Neither does
he comply with the rules
applicable to visitors, in that he does not make prior arrangements
with the manager to obtain permission
to play and does not pay the
prescribed fees, but that he simply comes on to the premises and
insists on playing without following
the standard procedure. As a
result, numerous confrontations have ensued in the past, resulting in
the police being called and the
respondent being removed by the
latter. Charges of trespass have been laid and the respondent duly
charged, but that on each occasion
he would be discharged by the
magistrates court on the basis that the matter was a civil dispute
and not criminal in nature.
[5] In his opposing
affidavit, the respondent does not deny the existence of the rules
and requirements for playing golf on the applicant’s
premises. In
fact, in argument, his counsel conceded that the applicant has, on
the papers, established two of the three requirements
for the grant
of a final interdict, namely, a clear right and the absence of an
alternative satisfactory remedy. The respondent’s
case is centred
on the requirement of an injury actually committed or reasonably
apprehended. He denies that he infringes on the
applicant’s rights
or causes it any injury. He says that he is a professional golfer
and a member of the Professional Golfers
Association of South Africa
(the PGA) and is an accredited member of its Senior Tour and that
members of the PGA are exempted from
complying with the domestic
rules and requirements of golf clubs countrywide. In particular,
they do not need permission to play
and are exempted from paying any
fees in order to play. As such, he can simply report to any golf
club, make a courtesy call on
the resident professional golfer or the
club manager and as long as the ground is available he can play,
subject only that he must
behave professionally. He alleges that the
privilege and respect accorded to professional golfers had always
been given to him by
the applicant and that the picture only changed
after Louw was appointed manager. The latter, he alleges, has a
personal grudge
against him and refuses to accord him the necessary
privileges and respect that he had always enjoyed purely because of
such grudge.
The respondent also alleges that Louw is motivated by
racial prejudice and discriminates against him because he is black.
[6] Now the applicant
vehemently disputes these allegations made by the respondent and has
filed a voluminous replying affidavit by
Louw with annexures and
supporting affidavits by other people. The affidavits and annexures
are all meant to disprove the core of
the respondent’s case,
namely, that he is exempted from complying with the domestic rules of
the applicant and that Louw is victimising
him.
[7] Now there are many
other allegations in the affidavits filed by both parties over which
there are disputes of fact. However,
these do not go to the core of
the dispute herein. The real dispute relates to the defence raised
by the respondent in his answering
affidavit, namely, that by virtue
of being a professional golfer he is exempted from seeking permission
and paying fees in order
to play golf on the applicant’s course.
[8] In argument, Mr.
Reinders contended that this averment by the respondent was so
untenable as to entitle this court to reject it
on the papers and to
grant the relief sought. Mr. Williams, for the respondent, argued on
the other hand, that this is a real dispute
of fact which cannot be
resolved on the papers. Nor can it be resolved on the basis of the
approach enunciated in
PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A). He said that although the respondent admits the
applicant’s affidavit evidence, he has nonetheless alleged other
facts which
the applicant disputes and in this regard he referred to
ROOM
HIRE CO (PTY) LTD v JEPPE STREET MANSIONS (PTY) LTD
1949 (3) SA 1155
(T) at 1163. Mr. Williams further submits that the
applicant should have foreseen that the respondent would raise such a
defence
and that the application should be dismissed.
[9] Now there is
authority for the view that disputes of fact arising in motion
proceedings should not be accepted at face value.
The court is
entitled to scrutinise the issues to determine whether the alleged
dispute cannot satisfactorily be resolved without
the aid of oral
evidence. In that context, the court would be entitled to look at
the probabilities and if these overwhelmingly
favour a specific
factual finding, the court should adopt a robust approach and make
such finding. See
SOUTH
PENINSULA MUNICIPALITY v EVANS AND OTHERS
2001 (1) SA 271
(CPD) at 283 B – I and the authorities cited
therein. I should mention that this approach was also adopted in
MAHALA
v NKOMBOMBINI & ANOTHER
2006 (5) SA 524
(SECLD) but this was only because the matter was
urgent. But then again, the authorities caution that this approach
should not be
adopted without circumspection.
[10] I have scrutinised
the papers filed of record and it is my view that this matter does
not lend itself to the robust approach
referred to above. In my
view, this matter can best be resolved by referring the specific
issue in dispute to oral evidence. I
canvassed this possible route
with counsel for both parties during argument and they both indicated
that they have no problem with
such approach. It is also my view,
that
prima
facie
the applicant is entitled to some form protection pending the hearing
of oral evidence. This is because the only dispute really
is the
validity of the respondent’s defence. An interim order is also
necessary in order to avoid further confrontations between
the
parties pending the determination of the dispute.
[11] In
the premises I make the following order:
1. The following specific
issue is referred to oral evidence:
Whether
the respondent is entitled, by virtue of being a professional golfer
and/or member of the South African PGA Senior Tour,
to play golf on
the greens and courses of the applicant without having to obtain
permission from the applicant to do so and without
having to pay the
requisite fees.
2. Pending
the determination of the above issue, the respondent is prohibited
from playing golf on the applicant’s course and grounds
unless he
shall have obtained prior permission to do so and having paid the
prescribed or agreed fees.
The costs hereof shall
be costs in the cause.
___________
H.M. MUSI, J
On
behalf on the applicant: Adv. S J Reinders
Instructed by:
Van
Wyk & Preller Attorneys
BLOEMFONTEIN
On behalf of
respondent: Adv. A. Williams Instructed by:
McIntyre
& Van der Post
BLOEMFONTEIN
/sp