Hassen and Another v Amod and Others (1036/2004) [2004] ZAFSHC 47 (27 May 2004)

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[2004] ZAFSHC 47
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Hassen and Another v Amod and Others (1036/2004) [2004] ZAFSHC 47 (27 May 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 1036/2004
In the
matter between:
MOHAMED
SALEEM HASSEN
1
st
Applicant
AYESHA
HASSAN
2
nd
Applicant
SHIRAZ
HAMID
3
rd
Applicant
RODNEY
SUBRAMONEY
4
th
Applicant
And
EBRAHIM
AMOD
1
st
Respondent
KAYROONISA
AMOD
“Also known as Kay” 2
nd
Respondent
SHAMIM
AMOD
3
rd
Respondent
_____________________________________________________________________
CORAM:
EBRAHIM,
J
_____________________________________________________________________
DELIVERED
ON:
27 MAY 2004
_____________________________________________________________________
[1] The applicant applies,
inter
alia
, for –
(a) a referral of certain issues for the hearing of oral
evidence;
(b) that pending the determination of those issues at
such hearing, for a temporary interdict restraining the respondents
from:
(a) assaulting, threatening to assault, and inciting other persons
to assault or threaten to assault or in any manner harassing
or
interfering with the Applicants;
(b) visiting
and/or entering or being on the Applicants’ premises situated at
Shop No 5 and Shop No 24,. Lediboho Shopping Centre,
QwaQwa, Free
State;
(c) verbally
abusing the Applicants and publishing false and defamatory statements
about and concerning the Applicants.”
[2] The background to this application which is common
cause is the following:
2.1 The first applicant is the son-in-law of the first
respondent. There is a history of friction between them for the past
nine years
which has manifested itself over that period in minor
arguments between them.
2.2 On 16 March 2004 a confrontation occurred between
them in which the third and fourth applicants and the second and
third respondents
were also involved. It is not necessary to set out
the exact and precise details of the confrontation in chronological
sequence.
Suffice it to say that verbal abuse was exchanged between
the first, third and fourth applicants and the respondents which
escalated
into a physical fight between the parties. It would appear
that the applicants as well as the respondents suffered physical
injury
which ultimately led to both the applicants as well as the
respondents laying criminal charges of assault against each other.
2.3 As a result of the charges laid by the respondents,
the first, third and fourth applicants were arrested and detained in
custody.
They were later released after a formal bail application
was brought.
2.4 No charges were pursued against the respondents and
to date they have not been prosecuted on any of the charges of
assault laid
by the applicants.
2.5 On 22 March 2004 the present application was
launched on an urgent basis, but postponed for the filing of
answering and replying
affidavits. At that time the parties
exchanged reciprocal undertakings not to perform any acts which
impacted adversely on the dignity,
person and property of the other.
[3] At the hearing of the application Mr Fischer, for
the respondents, made an application to strike out the record of the
bail proceedings,
certain photographs of the scene of the altercation
between the parties as well certain passages in the replying
affidavit which
made reference to the record of the bail proceedings.
The application for the striking out was premised on
the submission that no reference was made to the record of the bail
proceedings
in the founding papers.
[4] In support hereof Mr Fischer referred to the
authority of
POUNTAS’ TRUSTEE v LAHANAS
1924 WLD 67
at par
68
for the trite principle that in application proceedings an applicant
must stand or fall by his founding affidavit and all facts alleged
in
it as those are the facts that the respondents are called upon to
admit or deny.
Although it is true that no reference is made to the
record of the bail proceedings in the founding affidavit in paragraph
22 thereof
the first applicant does make reference to the actual bail
proceedings and makes allegations concerning what transpired thereat.
In particular allegations are made that –
(a) the investigating officer was called out of the
court and when he returned the charges were further amended to armed
robbery with
aggravating circumstances;
(b) that
the daughter of the first and second respondent was present at these
bail proceedings; and
(c) that the learned Magistrate in his judgment
expressed concern over the constant amendment of the charges and to
the State’s
baseless opposition to the granting of bail.
From these facts the applicants allege that the
instructions to amend charges were influenced by the first and second
respondents’
daughter, Ms Haseena Amod. The answering affidavit
only admits the presence of the first and second respondents’
daughter at the
bail proceedings, but simply denies the rest of the
contents of paragraph 22. Having regard to the contents of the
transcript of
the bail proceedings, this denial is false.
[5] In my view the record of the bail proceedings do not
introduce new allegations but convincingly demonstrates the falsity
of the
denial on oath of allegations made in paragraph 22 of the
founding affidavit. The striking out application would have the
effect
of concealing from the court the dishonesty of the denial in
the answering affidavit. The allegations in the founding affidavit
are merely vindicated by the record of the bail proceedings. In any
event, even if the record of bail proceedings were to be considered
as additional material which ought to have been included in the
founding affidavit, the court has a discretion to permit an applicant
to introduce new evidence in a replying affidavit when the evidence
was not available at the time of the signing of the founding
affidavit.
See:
Bayat v Hansa
1955
(3) SA 547
(N) at 553C-G;
Shakot Investments (Pty) Ltd v Town Council of the
Borough of Stanger
1976 (2) SA 701
(D)
at 704G-H;
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd (1)
1978 (1) SA 173
(W) at 178A;
Dawood
v Mahomed
1979 (2) SA 361
(D) at 364
Baeck
& Co SA (Pty) Ltd v Van Zummeren
1982 (2) SA 112
(W) at 116A-E;
Skjelbreds
Rederi A/S v Hartless (Pty) Ltd
1982
(2) SA 739
(W) at 742D;
Bowman
NO v De Souza Roldao
1988 (4) SA 326
(T) at 327H;
Djama
v Government of the Republic of Namibia
1993 (1) S 387 (Nm) at 391F;
Driefontein
Consolidated GM Ltd v Schlochauer
1902
TS 33
at 38;
Registrar
of Insurance v Johannesburg Insurance Co Ltd (1)
1962 (4) SA 546
(W);
Kleynhans
v Van der Westhuizen NO
1970 (1) SA
565
(O) at 568F;
Cohen NO v Nel
1975 (3) SA 963
(W) at 966F;
Cowburn v Nasopie (Edms) Bpk
1980 (2) SA 547
(NC) at 565B-D;
Shepherd
v Mitchell Cotts Seafreight (SA) (Pty) Ltd
1984 (3) SA 202
(T) at 205F;
Pienaar
v Thusano Foundation
1992 (2) SA 552
(B) at 578C-D.
[6] In its replying affidavit the applicants explain the
record of the bail proceedings was not available to them at the time
the
application was launched, and that it only subsequently became
available. In the course of the argument the respondents were
offered,
and declined, the opportunity of filing an additional
answering affidavit. Other than challenging the authenticity or
accuracy of
the record, it would appear very little could be said in
any event having regard to the contents of the record of the bail
proceedings.
The application to strike out should therefore fail.
[7] The respondents also raised
in
limine
the argument that the applicants
should have joined the daughter of the first respondent, the Office
of the National Director of Public
Prosecutions, the Minister of
Safety and Security and certain members of the South African Police
Services. This argument is premised
on the allegation of the
applicants that the said daughter, a member of the staff of the
Director of Public Prosecutions in Bloemfontein,
Ms Haseena Amod,
improperly used her office and influence on the South African Police
Services in the investigation and prosecution
of the applicants. The
test for joinder is a direct and substantial interest in the
proceedings. See
AMALGAMATED ENGINEERING
UNION v MINISTER OF LABOUR
1949 (3) SA
637
(A) at 649.
An interest is a
legal
interest in the subject matter of the litigation which may be
prejudicially affected by the judgment of the Court. See
HENRY
VILJOEN (PTY) LTD v AWERBUCH BROS
1953
(2) SA 151
(O)
.
[8] The relief sought by the applicants is interim
relief directed only at the three respondents and not at Ms Amod or
the South African
Police Services. I do not intend to make any final
finding on the conduct of Ms Amod in her capacity as a member of the
staff of
the Director of Public Prosecutions. The investigation of
events and the
prima facie
allegations relating to Ms Amod are best undertaken by the Director
of Public Prosecutions. By reason of the order I intend to make,
I
do not intend to pre-empt any action that might be taken by the
Director of Public Prosecutions.
The respondents argument fails to identify any legal
interest of the parties it suggests should be joined which is
affected by the
interim order sought by the applicants. I am not
persuaded that there is any such interest. Accordingly in my view the
argument
of non-joinder also fails.
[9] Turning now to the merits of the application it is
contended by the applicants’ counsel that the applicants have made
out a
prima facie
case for the relief sought in that they have satisfied all the
criteria necessary for the granting of interim relief. It is true,
as was argued by applicants’ counsel, that the applicants have the
right to enjoy freedom, physical integrity, dignity and reputation,
and that such rights are constitutionally entrenched rights. The
moot question, however, is whether they have established the other
requirements necessary for the granting of interim relief, the first
being whether it has been properly shown that the applicants
have a
well-grounded apprehension of irreparable harm if the interim relief
sought is not granted. In other words, have the applicants
placed
any or sufficient evidence before this Court to indicate that their
fears of attack on and interference with these fundamental
rights
have been substantiated?
[10] On examining the applicants version the following
is clear:
1. It has been established that there is a history of
feud between the respective parties and that the incident on 16 March
2004,
although a culmination of the friction between the parties, was
not an isolated incident. It had been preceded that morning by a
confrontation between some of the applicants and the first
respondent.
2. Only one set of complainants were prosecuted, namely
the applicants despite the fact that the applicants had laid similar
charges
against the respondents as had been laid against them by the
respondents.
3. The applicants were deprived of their liberty and
detained in custody for two days in the absence of conclusive and
clear evidence
from the respondents as to precisely which of the
applicants stole the first respondent’s cash and pointed the
firearm at him as
alleged by the first respondent. The charges laid
by the applicants against the respondents were neither investigated
nor prosecuted
– the respondents on laying the charges were allowed
to leave the police station.
4. There were unnecessary delays and postponements,
firstly, in bringing about the bail proceedings and, secondly, in the
duration
of the proceedings themselves in order to allow for the
amendment of the charges against the applicants to more serious
charges.
This took place in the presence of the first respondent’s
daughter, Ms Amod, all of this being admitted by the respondents.
Disturbingly,
however, the respondents fail to explain Ms Amod’s
presence which gives rise to an inference in favour of what the
applicants allege
concerning Ms Amod’s involvement in this matter,
i.e. that the arrest and prosecution of the applicants did not go
uninfluenced
by Ms Amod.
[11] As applicants’ counsel explained, these factors
gave rise in the applicants minds to a serious and grave fear and
concern that
this kind of manipulation may be repeated again, in he
event of respondents forcing a confrontation between the parties
which he
argued was likely in view of the proximity of their
respective businesses. The real possibility existed therefore in
applicants
minds that false charges could again be levelled against
them and sanctioned by the members of the South African Police
Service which
could result in further detention in custody for the
applicants.
[12] Mr Fischer, for the respondents, argued that these
factors alone did not constitute factors which were sufficient to
give rise
to the apprehension of fear on the part of the applicants.
He argues that it was clear on the papers that respondents denies all
the allegations of assault, verbal abuse and defamation. He submits
that on applicants papers, no factual basis has been laid in
the
evidence for applicants contentions of fear of assault and abuse and
that such allegations are purely speculative. He contended
that
there was something more than just belief on the part of the
applicants. He argued the applicants had to show that it was “an
ongoing process”. As I understood the argument, there must have
been some further act on the part of the respondents after the
applicants had been released on 18 March 2004 on bail to have given
rise to the fear and belief, in the applicants minds, that there
was
a possibility of a further assault being perpetrated on them or their
dignity being further impaired or further false charges
being laid
against them. He argued that in the absence of such an ongoing
process, if every person who is detained in custody and
charged
thereafter approached the High Court for in interdict on the basis
that they believed the charges were falsely laid, this
would make a
mockery of the administration of justice in this country.
[13] I, however, am unable to agree with these
submissions. It is a fundamentally entrenched right of every person
that he is entitled
to protection against bodily harm and damage to
his reputation and preservation of his dignity and integrity
It is common cause that the first applicant and first
respondent conduct business in close proximity with each other and
the opportunity
for trouble might well occur given the history of
their interaction with each other. This is a matter which must
necessarily give
rise to a feeling of apprehension in the minds of
the applicants especially when regard is had to the fact that factors
are present
in this matter which
prima facie
create the impression that the prosecution of the applicants has not
been completely uninfluenced. Moreover, the applicants have
demonstrated that they have no alternative remedy other than to
approach the Court for this relief, in that charges laid against
the
respondents were ignored and nothing became of those charges. On the
contrary, the applicants were summarily arrested and put
in custody
where they remained for two days.
[14] Mr Fischer also argued that there was no urgency in
the matter and that the application was therefore on that ground also
ill-founded.
With this submission I am also unable to agree. To my
mind there is something extremely urgent about a person being
deprived of
his liberty. The conduct of the respondents in laying
charges against the applicants (which, according to applicants were
false
charges) resulted in the deprivation of applicants liberty. In
my view that in itself was sufficient to create a feeling of fear
and
intolerance in the minds of the applicants, at the possibility that
it might happen again given the history of this matter, and
an urgent
desire for protection from the Court. They were unable to take up
their plight with the authorities which left them no
alternative but
to approach this Court for the appropriate relief.
[15] In my view the applicants have made out a
prima
facie
case for the relief sought in
accordance with the test laid down in
WEBSTER
v MITCHELL
1948 (1) SA 1186
(W) at
1189
:
“The use of the phrase “
prima facie
established though
open to some doubt” indicates I think that more is required than
merely to look at the allegations of the applicant,
but something
short of a weighing up of the probabilities of conflicting versions
is required. The proper manner of approach I consider
is to take the
facts as set out by the applicant, together with any facts set out by
the respondent which the applicant cannot dispute
and to consider
whether, having regard to the inherent probabilities, the applicant
could on those facts obtain final relief at a
trial. The facts set
up in contradiction by the respondent should then be considered. If
serious doubt is thrown on the case of
the applicant he could not
succeed in obtaining temporary relief, for his right,
prima facie
established, may only be open to “some doubt”. But if there is
mere contraction, or unconvincing explanation, the matter should
be
left to trial and the right be protected in the meanwhile, subject of
course to the respective prejudice in the grant or refusal
of interim
relief.”
[16] I need hardly add that it is patently obvious that
the question of prejudice to the applicants if the interdict be
refused weighed
against the prejudice to the respondents, if it be
granted, clearly falls in favour of the applicants. To the
respondents there
is in fact no prejudice at all. The charges laid by
the respondents against the applicants will not be affected in any
manner by
the granting of this interdict.
[17] In the result I make the following order:
1. The
application to strike out is dismissed.
2. The respondents are ordered to pay the costs of the
applicants’ opposition to the application for striking out.
3. In terms of Rule 6(5)(g) I direct that oral evidence
be heard in regard to the following:
(a) the alleged assaults by the first, second and third
respondents upon the first, third and fourth applicants, on 16 March
2004;
(b) the
laying of charges by the first, second and third respondents against
the first, third and fourth applicants arising from the
incidents
which occurred on 16 March 2004;
(c) the
alleged threats of assault, false and defamatory statements and other
verbal abuse made by the respondents to and concerning
the
applicants.
4. The parties shall be entitled to subpoena and call
any witnesses to give evidence relevant to the said issues, provided
that, if
any party wishes to call the evidence of a witness of whom
an affidavit had not been filed, such party shall file an affidavit
of
such witness with the Registrar not less than one week before the
date of hearing of such oral evidence, and serve a copy thereof
upon
each other party.
5. The application is postponed to a date to be fixed by
the Registrar for the hearing of such oral evidence, after the
conclusion
of the criminal case, in Case No. 500/04, in the Regional
Court in Harrismith.
6. Pending determination of the application (including
such further hearing) a temporary interdict shall operate restraining
the respondents:
(a) from assaulting, threatening to assault, and
inciting other persons to assault or threaten to assault or in any
manner harassing
or interfering with the applicants;
(b) from
visiting and/or entering or being on the applicants’ premises
situated at Shop No.5 and Shop No.24, Lediboho Shopping Centre,
QwaQwa, Free State;
(c) from
verbally abusing the applicants and publishing false and defamatory
statements about and concerning the applicants.
7. The provisions of Rules 21(2), 35, 36 and 37, shall
apply to the further conduct of the proceedings.
8. All questions of costs relating to this application
shall stand over for determination at the further hearing.
[18] Before concluding this judgment, I wish to touch on
two ancillary matters. The first relates to the applicants
submission that
the costs of 13 May 2004, the day this application
was due to be heard, must be borne by the respondents in view of the
fact that
it was due to the respondents’ counsel’s unavailability
on that day that the matter had to postponed to 14 May 2004. I am
inclined,
however, to agree with Mr Fischer that no order for costs
be made in regard to 13 May 2004 in view of the practice rules of
this
Division which allow for counsel to take no more than two
opposed matters on the Motion Court day with the attendant risk to
counsel
from other Divisions that the particular matter in which they
are involved, may spill over to the next day, as was the case in this
matter. I therefore make no order as to costs in regard to 13 May
2004.
The
second relates to the allegations concerning Ms Amod’s role in this
matter. I direct that a copy of this judgment be forwarded
to the
office of the National Director of Public Prosecutions for his
attention.
______________
S.
EBRAHIM, J
On
behalf of Applicants:
Adv. C.J.
Hartzenberg SC
Assisted
by Adv. S. Nankan
instructed
by
Israel
Sackstein Matsepe Inc
On
behalf of Respondents:
Adv. P.U. Fischer
instructed
by
E.G.
Cooper & Sons Inc.
/scd