De Winter-De Lange v Moonsamy and Another (7634/2003) [2004] ZAWCHC 22 (1 October 2004)

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[2004] ZAWCHC 22
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De Winter-De Lange v Moonsamy and Another (7634/2003) [2004] ZAWCHC 22 (1 October 2004)

IN THE CAPE HIGH
COURT OF SOUTH AFRICA
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
CASE NO: 7634/2003
In the matter
between:
MARIA DE
WINTER-DE LANGE Applicant
and
STEPHEN SATHOR
SIVAN MOONSAMY 1
ST
Respondent
PIETER
VISSER 2
ND
Respondent
JUDGMENT
delivered on: 01 OCTOBER 2004
Meer, J:
[1] The applicant
initiated motion proceedings against the respondents on 12 September
2003 for final interdicts against them. As
against the first
respondent, the applicant seeks a final order interdicting and
restraining him from:
1. Assaulting the
applicant;
2. Intimidating
and/or threatening the applicant;
3. Directly or
indirectly communicating with the applicant, except through her
attorney;
4. Telephoning her
house, cell-phone and business Tyle-It (Pty) Ltd and The Crypt
Restaurant & Bistro CC;
5. Contacting the
applicant’s auditors, suppliers, clients, employees or
sub-contractors;
6. Coming within 100
metres of the business premises of the Crypt Restaurant;
7. Coming within 100
metres of the business premises of Tyle-It (Pty) Ltd;
8. Coming within 200
metres of the applicant’s residential address at 16E Ravine Road,
Bantry Bay; and
9. Coming within 50
metres of the applicant.
[2] As against the
second respondent, the applicant seeks a final order interdicting and
restraining him from:
1. Directly or
indirectly communicating with the applicant, except through her
attorney;
2. Intimidating
and/or threatening the applicant;
3. Contacting the
applicant’s auditors, suppliers, clients, employees or
sub-contractors.
[3] The applicant, a
female Dutch citizen, is a business woman who has been residing in
Cape Town for some years. She owns fixed property
in South Africa and
has two businesses, namely Tyle-It (Pty) Ltd ('Tyle-It') and the
Crypt Restaurant & Bistro CC ('Crypt').
[4] The first
respondent was employed by the applicant as factory manager at
Tyle-It during January 2000 and they became romantically
involved in
May 2000. From its inception, the relationship between applicant and
first respondent has been tempestuous and characterized
by bitter
and rancorous altercations interspersed with interludes of apparent
peace.
[5] In the past four
years the applicant has instituted and withdrawn several legal suits
against the first respondent, including
applications for protection
orders under the
Domestic Violence Act 116 of 1998
. She has also
caused him to be investigated for theft and other nefarious
activities.
[6] This current
application is yet another in a long line of acrimonious law suits
between them.
[7] The second
respondent is a para-legal consultant who runs a consultancy, Kita
Consortium Consultancy CC, which styles itself as
a provider of
services in business administration and management, labour law, as
well as an “immigration practitioner”. Its main
business however
is registered as “trade and tourism”. The second respondent has
been representing first respondent in matters
relating to his
personal and business relationship with the applicant. In his
capacity as such, he has been in contact with the applicant
on
various occasions and has also attempted to obtain information about
her businesses from others.
[8] The relief
applicant seeks appears to have been precipitated by events which
occurred in about July 2003. At that stage the relationship
between
applicant and first respondent had become particularly hostile as,
pursuant to the disappearance of her laptop computer and
various
other items, applicant caused first respondent to be investigated for
theft. The first respondent then brought a charge against
applicant
at the Ravensmead Police Station for threatening him. The applicant
in turn commenced proceedings on 28 August 2003 in
the Cape Town
Magistrate’s Court for an interim protection order against first
respondent. Thereafter on 10 September 2003, before
the hearing of
the interim protection order and whilst it was still pending at the
Cape Town Magistrate’s Court, applicant commenced
with the present
application before this Court.
[9] On 29 August
2003 an interim protection order was granted in the Cape Town
Magistrate's Court with a return day of 13 September
2003. In terms
thereof the first respondent was ordered not to commit the following
acts of domestic violence as against the applicant:
- not to assault or
threaten her:
- not to enlist the
help of another person to do so;
- not to enter her
residence in Bantry Bay;
- not to enter her
places of employment;
- not to verbally
abuse, harass, stalk or have any telephonic or other contact with
her;
- not to come within
200 metres of her.
[10] The relief
applicant seeks against first respondent in this application is the
same as that which was granted to her in terms
of the interim
protection order by the Cape Town Magistrate’s Court, save for that
claimed at prayer 1.5 of the notice of motion,
which asks that first
respondent be interdicted and restrained from:
“Contacting the applicants’ Auditors, Suppliers, Clients,
Employees or Sub-contractors”.
The same relief is
sought against the second respondent at prayer 2.3.
[11] On 23 September
2003 a final protection order was granted in the Cape Town
Magistrate’s Court.
[12] In the interim,
on 2 September 2003 the first respondent himself had applied for a
protection order against applicant, but it
would seem that this was
not pursued by him.
[13] Applicant’s
case against the second respondent appears to have been prompted by
the fact of his questioning several of her
associates directly about
her business affairs, despite being instructed by her to communicate
only with her lawyer. In addition,
according to applicant, on 17
August 2003 second respondent telephonically accused her of being "a
rich foreigner who is ripping
the local people off" and
indicated that he would ensure that first respondent received 50% of
all her possessions and money.
Second respondent denies this
allegation.
[14] In the current
application, applicant relies on the absence of any other suitable
remedy against both respondents and contends
that the protection
order granted against first respondent is insufficient as it does not
grant the relief sought at paragraph 1.5
of the notice of motion in
these proceedings against him, nor does it protect her against the
second respondent.
[15] First
respondent argues that the application cannot succeed as it offends
against the principles of both
lis
pendens
and
res
judicata
.
This application was launched whilst the proceedings in the interim
protection order were pending in the Cape Town Magistrate's
Court and
therefore
lis
pendens
.
The final protection order was granted on 23 September 2003, and the
matter is now
res
judicata
.
Respondents argue
further that applicant lacks the requisite
locus
standi
to prohibit their contact with either Crypt and Tyle-It in that these
are distinct and separate legal persona from her, which were
not
joined as co-applicants.
[16] In determining
whether applicant is entitled to the relief she seeks, it is
convenient to consider the interdict she applies
for against each
respondent separately.
The Interdict
against the first respondent.
[17] There can be no
doubt that at the time the applicant instituted proceedings against
the first respondent in this Court, the matter
was
lis
pendens
because
the confirmation of the interim interdict was pending in the Cape
Town Magistrate’s Court.
[18] I am similarly
of the view that the matter is
res
judicata
,
in the light of the final protection order which was granted on 23
September 2003. The requirements of our common law for a successful
defence of
res
judicata
are threefold namely, that the previous judgment was given in an
action or application by a competent court (1) between the same
parties, (2) based on the same cause of action, and (3) with respect
to the same subject matter or thing. All of these requirements
are
present in this application as far as first respondent is concerned.
[19] It has been
accepted that requirements (2) and (3) above are not immutable
requirements of
res
judicata
and
may be relaxed in order to ensure overall fairness.
1
[20] Mr. Tredoux,
for the applicant, urged that in the interests of overall fairness
the applicant should be accorded the relief she
seeks. I cannot
agree. As against first respondent, applicant had already been
accorded all the relief she seeks in these proceedings,
save for that
sought at prayer 1.5. The latter relief too, could have been obtained
by way of the protection order under
section 7(h)
of the
Domestic
Violence Act, which
authorizes a court to prohibit a respondent from
“
committing
any other act as specified in the protection order
”.
There will be no unfairness to applicant if this court does not
grant her the relief she seeks, as it is still open to her to apply
to the Magistrate’s Court to vary her protection order in terms of
Section 10
of the
Domestic Violence Act.
[21
] As was
succinctly stated by Thring, J in
Holtzhausen
& Another v Gore & Others
2
“A court must have regard to the object of the exceptio res
judicata that it was introduced with the endeavour of putting a limit
to needless litigation and in order to prevent the recapitulation of
the same thing in dispute in diverse actions, with the concomitant
deleterious effect of conflicting and contradictory decisions."
[22] Applicant’s
current litigation against first respondent was needless and
unjustified in the light of the protection order.
I note in passing
that litigation could have “flowed” from the Magistrate’s court
into this Court, if a review of the protection
order were sought.
This would of course hardly have been initiated by applicant, given
the protection the prtoection order afforded
her.
[23] Mr. de Vries,
for the respondent, arguing against applicant’s locus standi
vis-à-vis the close corporations, submitted that
she did not have
locus standi in her personal capacity to seek the relief at
paragraphs 1.5 and 2.3 of the notice of motion, interdicting
the
respondents from contacting the auditors, suppliers or
sub-contractors of the legal entities Crypt Restaurant CC, Tyle-It
(Pty)
Ltd and Tyle-It (South Africa) CC. If the applicant, in her
capacity as representative of these entities had wanted to interdict
the respondents, these legal entities ought to have been joined as
co-applicants. There is merit in this view. The close corporations
are separate and distinct juristic persons with legal capacities of
their own
3
.
The inter-relatedness between these legal persona and applicant as
its member and/or director does not clothe applicant with the
requisite
locus
standi
to
seek the relief she does at paragraphs 1.5 and 2.3 of the notice of
motion. This is not an instance where the need to preserve
the
separate corporate personality of a company gives way to a piercing
of the corporate veil as can occur where there is fraud,
dishonesty
or other improper conduct
4
.
Nor is this an instance where the relief can be granted through the
application of the so-called alter ego doctrine, where the states
of
mind or acts
of
those in control of a company are attributed to the company itself
for purposes of establishing liability.
5
The Interdict
against the second respondent.
[24] The
proceedings against the second respondent by the applicant cannot be
said to be
res
judicata
as
he was not a party to the protection order application and the final
order offers her no protection against him.
[25] From the
pleadings, it is common cause that the second respondent, in his
capacity as the representative of the first respondent,
has displayed
a tendency to communicate directly with the applicant instead of
through her legal representative and she has been
harassed by this.
It is clearly more appropriate that such communication should be
through her attorney. It is also common cause
that the second
respondent has been making enquiries about her, some of which have
the air of impropriety. This is unprofessional
conduct. I am
satisfied that these are injurious acts which infringe upon the
applicant’s right to privacy for which she has no
other remedy. She
is accordingly entitled to the relief she seeks at prayers 2.1 and
2.2 of her notice of motion against the second
respondent.
Costs
[26] The respondents
seek a punitive costs order on the scale as between attorney and
client on the basis that proceedings in this
court are vexatious and
res
judicata
.
Gardiner, JP in In
re Alluvial Creek Ltd
1929 CPD 532
at 535 stated:
“An order is asked for that he pay the costs as between attorney
and client. Now sometimes such an order is given because of something
in the conduct of a party which the court considers should be
punished, malice, misleading the court and things like that, but I
think the order may also be granted without any reflection upon the
party where the proceedings are vexatious, and by vexatious I
mean
where they have the effect of being vexatious, although the intent
may not have been that they should be vexatious
.”
6
[27] I am satisfied
that the applicant’s proceedings against the first respondent are
vexatious, ought not to have been brought
and accordingly qualify for
a punitive costs order as between attorney and client.
[28] The same cannot
be said for the applicant’s proceedings against the second
respondent given my finding above.
Order
[29] The following
order is granted:
1. The application
for a final interdict against the first respondent is dismissed with
costs, such costs to be on the scale as between
attorney and client.
2 The second
respondent is interdicted and restrained from:
2.1 Directly or
indirectly communicating with the applicant, except through her
attorneys;
2.2 Intimidating
and/or threatening the applicant;
2.3 Costs of suit
are awarded in favour of applicant against
the second
respondent on a scale as between party and party.
_____________
Y S MEER
IN THE CAPE HIGH
COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
REPORTABLE
CASE NO: 7634/2003
In the matter
between:
MARIA DE WINTER-DE
LANGE Applicant
and
STEPHEN SATHOR SIVAN
MOONSAMY 1
ST
Respondent
PIETER VISSER
2
ND
Respondent
JUDGMENT BY : MEER,
J
For
the Applicant : Adv. JC TREDOUX
Instructed
by : JORDAAN & ASSOCIATES
Per
G JORDAAN
5
TH
Floor, Wale Street Chambers
33
Church Street
Cape
Town
For
the Respondents : Adv. JD DE VRIES
Instructed
by : SMITH & DE JONGH
P/A
VILJOEN & WASSERMAN
Dunkley
House 103
38
Barnet Street
GARDENS (Ref:
GDJ)
Date(s)
of hearing : Monday, 06 September 2004
Judgment
delivered : Friday, 01 October 2004
1
Bafokeng
Tribe v Impala Platinum Ltd and Others
1999 (3) SA 517(B)
at 566B - 567B
2
2002(2)
SA 141 at 149H-I
3
See
Section 2
(4) of the
Close Corporations Act 69 of 1984
4
See
Die Dros (Pty ) Ltd and Another v Telefon Beverages CC and Others
2003 (4) SA 207
at 215 par 23
5
See
Simon NO &
Others v Mitsui & Co. Ltd & Others
1997(2) SA 475(W)at 527E where the rational for the doctrine was
explained on the basis of being able to attribute
mens
rea
to a company for purposes of establishing criminal liability.
Further Blackman Joost & Everingham
Commentary
on the Companies Act
,
Juta, Lansdowne (2002) Vol. 1, at p4 -123-124.
6
Extract
by Gardiner, JP as quoted by Thring, J in
Friederich
Kling GmbH v Continental Jewellery Manufacturers: Spiedel GmbH v
Continental Jewellery Manufacturers
1995(4)
SA 966 (C) at 974B