South Africa: North West High Court, Mafikeng

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Molefe v Molefe (205/02) [2002] ZANWHC 16 (16 May 2002)

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CA NO.:205/02


IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)


IN THE MATTER BETWEEN:


BOITUMELO ELIZABETH MOLEFE APPLICANT


AND


SIMON POPO MOLEFE RESPONDENT


REASONS TO BE HANDED DOWN 16 MAY 2002


FOR THE APPLICANT MR MONARE

FOR THE RESPONDENT MS WOODWARD


REASONS FOR JUDGMENT

NKABINDE J:


Introduction:

[1] The applicant applied by way of urgency for an order in the following terms:

2. That a rule nisi do issue returnable on Thursday the 30th May 2002 calling upon the Respondent to show cause why the Respondent should not be interdicted and restrained from threatening the Applicant and the minor child with violence and or harassing and or molesting the applicant and the minor child when they return to the common home.

3. That the Respondent should deliver the two firearms owned by him to the Station Commander of Mafikeng Police Station immediately upon service of this order on him.

0. Costs of suit.

0. Further and or alternative relief.

6. That the orders set out in paragraphs 2 and 3 above should operate with immediate effect pending the finalization of this application.”.

[2] At the outset I must point out that although an interim interdict was sought in the papers, the relief sought at the hearing was for a final interdict. This was confirmed by Mr Monare who appeared on behalf of the applicant. I accordingly treated the application as an application for a final interdict and applied the tests in relation to a final interdict.


[3] The respondent in opposing the application raised, inter alia, certain points in limine which will be dealt with later hereunder. Argument was addressed to the Court on the said points as well as the merits. After hearing argument I dismissed the application with costs and reserved reasons. What follows are the reasons.


Factual Background

[4] The parties to this proceedings were married to each other in community of property on 1 June 1991. One minor child, a daughter aged 11 years, was born of the marriage. It was common cause that-

(a) the applicant, a Councillor employed by the Mafikeng Local Municipality, instituted divorce action on 30 April 2002 in this Court under case no: 200/2002 against the respondent, the Premier in the North West Provincial Government;

(b) the applicant, together with the minor child, left the parties’ common home at Old Embassy Residences, Golf View, Mafikeng. The facts and/or circumstances which gave rise to the said departure are in dispute;

(c) the aforementioned common home is a State owned property allocated to the respondent as his official residence; and

(d) pursuant to the applicant and the child’s departure from the common home the parties’ legal representatives exchanged correspondence the contents of which, inter alia, touched on the facts in dispute in this case.


The issues

[5] As I have already indicated the respondent raised certain points in limine. These points, referred to in this judgment not in the order in which they were argued, related to:-

(a) the lack of urgency;

(b) the fact that a genuine dispute of fact existed in the matter; and

(c) the fact that the applicant failed to make a case for the relief sought in the notice of motion in terms of Rule 6 (1) of the Uniform Rules of Court (“the Rules”).

The Court had to determine further whether the requirements for a final interdict were satisfied. I propose to start with the last point.

Requirements for a final interdict

[6] In order to succeed in obtaining a final interdict an applicant must establish the requirements as set out in Setlogelo v Setlogelo 1914 AD 221 at 227 which have been applied consistently by the Courts (See Minister of Law and Order, Bophuthatswana and Another v Committee of the Church Summit of Bophuthatswana & Others 1994 (3) SA 89 (B) at 98B; Sanachem (Pty) Ltd v Farmers Agri-Care (Pty) Ltd & Other [1995] ZASCA 2; 1995 (2) SA 781 (A) at 789 B-D). The requirements are:-

(a) a clear right;

(b) an injury actually committed or reasonably apprehended; and

(c) the absence of similar protection by any other ordinary remedy.


[7] A final interdict is usually applied for by way of action but has also been granted on application if no bona fide factual dispute exists (See Setlogelo, supra, at 223, 226; Prinsloo V Shaw 1938 AD 570 at 576). I shall touch on this aspect later hereunder.


[8] I now turn to deal with the abovementioned requirements seriatim.

8.1 Ad a clear right

8.1.1 The question which arose in the instant case was whether the applicant had a clear or definite right which could be protected and in terms of which herself and the minor child could return to the common home. Mrs Woodward submitted, correctly in my view, that the applicant failed to establish a clear right. As will be seen later hereunder, it was conceded that a dispute of fact existed in casu.

8.1.2 In dealing with this requirement in the Minister of Law and Order case, supra, Friedman AJP (presently Judge President of this Provincial Division) said the following at 98 D-E:

“Whether the applicant has a right is a matter of substantive law. The onus is on the applicant applying for a final interdict to establish on a balance of probability the facts and evidence which prove that he has a clear or definite right in terms of substantive law. See Nienaber v Stuckey 1946 AD 149 at 1053-4; Mosii v Motscokhumo 1954 (3) SA 919(A)... the right which the applicant must prove is also a right which can be protected. This is a right which exists only in law, be it at common law or statutory law.”.

(See also Herbstein & Van Winsen ‘The Civil Practice of the Supreme Court of South Africa’ 4th ed at 1066).

8.1.3 The home which the applicant was claiming entitlement on is a State owned property which was allocated to the respondent as his official residence. It was common cause that the house did not form part of the parties’ joint estate. Applying the legal principles to the facts of this case it did not appear to me that the applicant had discharged the onus that she had a legal right to be returned to the house in question. With regard to the rest there were bona fide dispute of facts.

8.2 Ad an injury committed or reasonably apprehended

8.2.1 The second requirement for the granting of a final interdict is that there must be or must have been a threat to or an infringement of that clear right. Substantial grounds must be proved to establish the apprehension or infringement of the right.

8.2.2 Having found that the applicant could not establish a legal right and that there were bona fide dispute of fact with regard to the relief sought, I was unpersuaded that this requirement was satisfied.

8.3 Ad alternative remedy

8.3.1 The enquiry was whether an interdict was the only relief or remedy to help the applicant or whether there existed a satisfactory alternative remedy. An alternative remedy may take any form: damages, or the invocation of police protection, criminal prosecution or a binding-over order (See Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3) SA 656 (R); Herbstein and van Winsen, supra, at 1076). In conducting the enquiry the Court maintained a discretion (Herbstein and van Winsen, supra, at 1074; Beecham Group Ltd v B-M Group (Pty) Ltd 1977 (1) SA 50 (T) at 54E-55B).

8.3.2 Mr Monare submitted that the applicant and the minor child had a right to be accommodated in the common home until the issue of alternative accommodation had been resolved (Applicant’s heads of argument paragraph 3.1). In letters dated 2 and 3 May 2002 addressed by the applicant’s attorneys to the respondent’s attorneys (annexures “BEM 1” and “BEM 2", respectively), it was stated, inter alia, that there was consensus that-

“ ...cohabitation between the parties is undesirable and we agree that our client should move out of the house as soon as suitable alternative accommodation befitting the wife and daughter of a Premier is secured, but in the interim she is entitled as of right to have a roof above her head and of the minor child and your client can’t deny them this right.”. (My underlining for emphasis).

The applicant averred, in paragraph 22 of the founding affidavit that-

“ I have instructed my attorneys of record to bring an application in terms of rule 43 for interim maintenance for me and the minor child and contribution towards costs and maybe then I would be able to have an alternative accommodation.”. (My underlining for emphasis).


8.3.3 Notwithstanding the fact that:-

(a) the undesirability of cohabitation between the parties had been discussed and agreed upon;

(b) a roof above the applicant’s head and of the minor child was offered as an interim alternative measure; and

(c) the applicant had given instructions to her attorneys to bring a Rule 43 application for an interim maintenance to be able to secure accommodation for herself and the minor child,

the applicant persisted in her founding papers that she was-

“entitled to return to the common home until suitable alternative accommodation is secured by the Respondent for me and the minor child because he is in control virtually of all the vast estate we own.”.


8.3.4 The respondent admitted, inter alia, that the applicant is entitled to return to the common home. In argument, Mr Monare placed more emphasis on this admission. That admission, in my view, did not, per se establish a legal right in favour of the applicant. My view in this regard is fortified by the fact that the respondent, having so admitted, still persisted with his offer for an interim alternative accommodation supposedly to avoid cohabitation with her. It became clear to me when analysing the facts that the applicant was, in reality, not merely looking for a roof over her head but was looking for a specific type of alternative accommodation. She was not prepared to settle for the offer made which, in her view, was not befitting the wife of a Premier and “not in standard with our lifestyle and the vast joint estate we have build together.”.


It was clear in these circumstances and in the exercise of my discretion that the applicant did have alternative adequate remedies. She could be afforded redress at a Rule 43 application or when the divorce is finalised.


Dispute of fact

[9] Mrs Woodward submitted that the circumstances which gave rise to the applicant’s departure from the common home were discussed before the launching of the application in the correspondence which passed between the attorneys representing the parties and that from these correspondence it was manifest, already then, that there was a dispute of facts. The applicant however proceeded to seek an interdict by way of motion proceedings. She asked this Court to dismiss the application. Mr Monare conceded, correctly in my view, that a dispute of fact existed. He however submitted that the dispute was on peripheral issue. He asked this Court to refer the matter for viva voce evidence.


[10] Rule 6 (5)(g) of the Rules empowers the Court, where an application cannot properly be decided on affidavit, to make such order as to it seems meet with a view to ensuring a just and expeditious decision. The subrule provides as follows:

“(g) Where an application cannot properly be decided on affidavit the court may dismissed the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that and may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definitions of issues, or otherwise.”.


[11] I examined the alleged dispute and had no doubt that it was, in truth, a bona fide dispute which this Court could not decide on the papers. There was no doubt in my mind further that the applicant did realise or should have realised, when launching the application, that a serious dispute of fact incapable of resolution on the papers was bound to develop. This view is strengthened by the contents of the correspondence which passed between the parties prior to the launching of the application. The question then remained whether the matter should be referred to for viva voce evidence under subrule (5), above.


[12] In Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1153 (T) it was held that where a dispute of fact is shown to exist the Court has a discretion as to the future course of the proceedings. The dispute in this application did not in my view, relate to less important issues as Mr Monare contended. The applicant sought a final interdict by way of motion proceedings when she knew or should have known that the matter was going to be bitterly contested. Centlivres CJ stated in Adbro Investment Co Ltd v Minister of the Interior 1956 (3) SA 345(A) at 350A that where the applicant should have realised when launching the application that a serious dispute of fact was bound to develop the dismissal of the application with costs was the course that may be adopted. I share the views expressed by Price J (as he then was) in Garment Workers Union v De Vries and Others 1949 (1) SA 1110 (W) at 1133 (also quoted with approval by Lawrence AJ, (as he then was) in Seloadi and Others v Sun International (Bophuthatswana) Ltd 1993 (2) SA 174 (B) at 191E-F) that-

It is becoming a habit to bring applications to Court on controversial issues and then to endeavour to turn them into trial actions. Applicants thereby obtain a great advantage over litigants who have proceeded by way of action and who may have to wait for many months to get their case before the Court. Such applications cum-trials interpose themselves, occupying the time of Judges and still further delaying the hearing of legitimate trials. Applications for the hearing of viva voce evidence in motion proceedings should be granted only where it is essential in the interest of justice.”.

In all the circumstance and for the reasons aforesaid, I did not accede to Mr Monare’s request to refer the matter for viva voce evidence. The appropriate course, in the circumstances, was to dismiss the application with costs.


Urgency

[13] The applicant approached this Court on urgency in terms of Rule 6 (12)(a) and (b) of the Rules. This subrule provide as follows:

“(12)(a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet. (b) In every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the applicant shall set forth explicitly the circumstances why he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course. (c) ...”.

[14] It is clear from the requirements set out in subrule (12), above, that the Court’s power to abridge the times prescribed and to accelerate the hearing of such an urgent matter should be exercised with judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant (See IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd 1981 (4) SA 108 (C)).

[15] As I deal with this aspect, I must hasten to point out that this Court was not seized with a Rule 43 application. Ordinarily, the Courts are far more amenable to dispensing with the requirements of the Rules and disposing of the matter with such expedition, as the situation warrants, where the personal safety or liberty is involved or where a young child is likely to suffer physical or psychological harm. These are not the reason for urgency in this matter. The circumstances which allegedly rendered the application urgent as required in terms of the above subrule were set out in paragraphs 28 and 30 of the founding affidavit. They read as follows:

28.

I submit that this matter should be treated as urgent because the minor child and I are presently asking favours for accommodation when for the past three (3) years we have been living alone without threats of violence from the Respondent who has not been living with us. I asked for leave of absence from work on the 2nd and 3rd May 2002 and the child did not attend school for the said two days because our facilities which are necessary for preparation to work and school are in the common house. ... 30. We do not have another remedy ... because attempts to have a suitable and secured accommodation for me and the minor child have been thwarted by the humiliating offer made by the Respondent that we should stay in a flat.”.



[16] Mrs Woodward submitted, correctly in my view, that the matter was therefore not at all urgent and that urgency, if any, was of the applicant’s own making because, firstly, the applicant refused an offer by the respondent for an alternative accommodation which she alleged was the basis for urgency. This view is fortified by the contents of a letter by the applicant’s attorneys (annexure “BEM 2", above) where it is stated, inter alia, that-

“... in the interim she is entitled as of right to have a roof above her head and of the minor child ...”.

Clearly, the applicant was afforded an opportunity to have “a roof above her head and of the minor child” as an interim measure. The offer was refused by her because it was “not befitting the wife and daughter of a Premier”. This might well have been the case but I was mindful of the fact that this Court was not called upon to entertain a Rule 43 application where such facts might have been relevant; secondly, in regard to whether the applicant could be afforded redress at a hearing in due course or not the facts in the founding affidavit spoke for themselves: the applicant, stated in her founding affidavit that she had already instructed her attorneys to apply for a Rule 43 application for interim maintenance for herself and the minor child so that she could have an alternative accommodation. It followed therefore, as I have already indicated, that the applicant could be afforded redress at the hearing in due course, not only through an envisaged Rule 43 application but also the divorce action which has already been instituted. The application was, for these reasons, not urgent.


Compliance with Rule 6(1)

[17] The respondent also contented that the applicant did not make out a prima facie case in her founding affidavit for the relief she sought. Legally, the respondent was entitled to raise an objection, in limine to that effect (See Erasmus ‘The Superior Court Practice’ Juta at B1-38A). The urgent application was brought on notice of motion which was supported by the applicant’s affidavit in terms of Rule 6(1) of the Rules. This subrule provides as follows:

(1) Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.” (my underlining for emphasis).


[18] In terms of the law the facts contained in the applicant’s affidavit must be set out simply, clearly in details and without irrelevant and argumentative matters. The most apposite remarks in this regard are expressed by Stegmann J in Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78G-I; 83A; D-E and G-H. It is, for the purpose of this judgment, necessary to highlight the salient points mentioned by the Learned Judge about what is expected of an applicant who elect to approach the Courts by way of application proceedings especially in the face of anticipated dispute of facts. He said the following, that:-

Lest I should be thought to condone this state of affairs, I must take this opportunity to record that I consider the time to be overdue for a return to a much more disciplined form of practice. What should occur is, of course, that an attorney should take instructions from his client in an orderly way. This involves obtaining and considering all of the relevant documents, arranging them, and the relevant facts which they tend to establish, in a chronological sequence. This preparatory work provides the raw material on which a decision can be taken about what relief to seek and whether to proceed by way of action or by way of motion. When the relief to be sought has been decided upon, and it has also been decided that motion proceedings are appropriate, the facts relevant to such relief can be selected from the raw material with due regard to the context. Those facts can then be set out simply, clearly and in chronological sequence, and without argumentative matter, in the affidavits which were to support the notice of motion. ... Often enough the allegations of fact relied upon are not made fully and clearly and in their proper context, but merely as oblique hints or suggestions constituting adjuncts to the argument being advanced. ... The point I wish to make with great clarity is that the task of this Court based upon the judicial oath of office, is to do justice according to the law, and that it is not to make any sort of quick announcement of a result based upon a general impression of who may be right and who may be wrong. Where the parties seek a quick arbitrary result they go to an arbitrator. The task of this Court is to do justice according to the law, which is quite different from arbitration. It means ascertaining the facts according to the rules of the law of evidence, and then duly applying the rules of law to the facts so ascertained. If the parties do not present the facts in an orderly manner, so that their significance can quickly be grasped, a long time may elapse before the Judge is able to find the spare time needed for him to undertake the task of ordering the facts in such a way that their true significance is revealed.”

I could not agree more.


[19] It seemed to me, when applying the principles of law, that the applicant had misconstrued her remedy. This could be attributable to the irrelevant, argumentative and unsubstantiated facts in her affidavit. This Court, painstakingly, tried to decipher the relevance of most of the factual allegations made in the founding affidavit in support of the relief sought. As I have already pointed out it was apparent, before the applicant launched the application, that the allegations relating to the threats, harassment and molestations would be resisted by the respondent. The applicant however decided to make the application in the face of that anticipated resistance. I must point out that it could not be said on the papers, that the denials or allegations by the respondent were far-fetched. It was, therefore, incumbent upon the applicant to have prepared the application with sufficient and proper care. In particular, the applicant ought to have set out every relevant fact on which she relied for the alleged molestations, violence and harassment. What she did (as I have said) was to burden the affidavit with a number of irrelevant facts and argumentative matters which, as a matter of fact, had no bearing on the relief she claimed. In my view, the allegations of fact relied upon by the applicant were not made fully, clearly and in their proper context. Applying the rule formulated by our Courts and referred to several times by the Appellate Division (See Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) at 938 A-B; Tamarillo (Pty) Ltd v B N Aitkin (Pty) Ltd 1982 (1) SA 398 (A) at 430 and Plascon - Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H, this Court could not, on the facts averred by the applicant and admitted by the respondent, together with facts alleged by the respondent, justify the relief sought.


[20] Finally, it is of utmost importance to point out that this Court, in the exercise of its discretion, would have failed in its duty and obligation as the guardian of all the minor children if it granted the order sought as set out above. The order, in effect, would have allowed the applicant and the minor child to return to the common home. I had to consider, inter alia, the serious allegations made, including the allegation that the minor child had been diagnosed by doctors to have been sexually molested and that she was emotionally traumatised. In any event cohabitation between the parties would, in the circumstances, have been utterly undesirable.


[21] In all the circumstances and for the reasons aforesaid the application was dismissed with costs.

B.E. NKABINDE

JUDGE OF THE HIGH COURT



ATTORNEYS FOR THE APPLICANT : Monare & Partners

ATTORNEYS FOR THE RESPONDENT : Stanton Smit & Motlhabani