FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT GRAHAMSTOWN

PARTIES:  P.J. Snyman & 4 others and C.A. Haupt & 4 others                                               
            Case Number:              2519/2009       
            High Court:                   Eastern Cape High Court Grahamstown
            
DATE HEARD:           09/07/2009

DATE DELIVERED:               16/07/2009

JUDGE(S):                               Froneman J

LEGAL REPRESENTATIVES –

Appearances:
            for the Applicant(s):      Adv G Diamond
            for the Respondent(s):   Adv B Pretorius

Instructing attorneys:
             for the Applicant(s):     Whitesides
            for the Respondent(s):   Nettletons

CASE INFORMATION –
            Nature of proceedings.
            Topic:
            Key Words:

IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – GRAHAMSTOWN                                  Case No 2519/2009

In the matter between

P.N.J.SNYMAN AND FOUR OTHERS                                   Applicants
 
and

C.A.HAUPT AND FOUR OTHERS                                          Respondents
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                                                           JUDGMENT
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Froneman J.

[1] On 19 June 2009 the applicants launched an urgent application for an order prohibiting the first to fourth respondents from interfering with the management of the fifth respondent, a close corporation, and from entering the business premises of the fifth respondent known as the Whittlesea Spar. The notice of motion indicated that the matter would be set down for hearing on 9 July 2009. It gave the respondents until 24 June 2009 to file a notice of intention to defend and to file an opposing affidavit by 29 June 2009. It then gave itself until 6 July 2009 to file a replying affidavit. These opposing papers were duly filed and the matter came before me last week, on 9 July 2009, in the court recess period.

[2] The applicants and the first to fourth respondents (‘the respondents’) are all members of the fifth respondent (‘the close corporation’). The background to this application is a commercial dispute between the applicants and the respondents about the ownership and management of two Spar franchises in the Eastern Cape. For the purposes of this judgment it is not necessary to refer to the merits and demerits of this commercial dispute in any detail. During argument it was made clear by counsel for the applicants that all that the applicants were seeking was an order prohibiting the respondents from an alleged threatened despoiling of possession of the Whittlesea Spar. The respondents countered that, firstly, a case for urgency had not been made out by the applicants, and, secondly, that they never took possession or threatened to take possession of the Whittlesea Spar.

[3] The applicants have adopted a fairly cavalier approach to the rules of this division relating to urgent matters. They should have been aware that opposed matters are generally not set down for hearing during the court recess. An exception is made for urgent matters, but local rule 12 regulates such matters. It reads:
“12 (a) In urgent applications:
         (i)  The practitioner who appears for the applicant must sign a certificate of urgency which is to 
               be filed of record before the papers are placed before the judge and in which the reasons for
               urgency are fully set out. In this regard, it is insufficient to merely refer to passages in the 
               papers and sufficient particularity is to be set out in the certificate for the question of
               urgency to be determined solely therefrom and without perusing the application papers, which
               will not be read until such time as a proper certificate of urgency has been filed.
          (ii) Details of why the applicant alleges a matter is urgent should also be set out in the founding
               papers.

  (b) In all applications brought as a matter of urgency, the matter should be set down for hearing at a time which has been determined as convenient for the judge who is to hear the matter.”

[4] The certificate of urgency filed by the applicants’ attorney is terse in the extreme and would not have been sufficient on its own terms to allow counsel for the applicants to have advanced the argument on urgency that he did. I was never approached to determine a convenient time to hear the application, nor was any effort made, as far as I am aware of, to determine from any judge whether the unilateral allocation to set the matter down for hearing in the recess was convenient, or necessary. 

[5] The alleged interference by the respondents in the running of the business at the Whittlesea Spar is said to consist of a visit to the premises on 11 May 2009 by the second and third respondents where they informed the manager, a Mr. Finn, that they would attend to the business on a daily basis to monitor the running of the store and that they wished to set themselves up in the administrative office. They handed him a letter of their attorneys in which it is stated that they intended to take over the management of the shop and, in order to do that lawfully, they required a copy of the agreement the applicants had concluded with Mr. Finn. On 22 May 2009 they again visited the shop with Mr. Finn’s consent. They asked for access to the computer and downloaded a number of e-mails relating to correspondence with the first applicant. The next week they returned to download more e-mails and looked for certain documents regarding the bank account of the fifth respondent. On 1 June they arrived at the shop without prior warning. Mr. Finn was not there yet. There is some dispute about what occurred on this occasion. 

Mr. Finn alleges that they stated that they were exercising their right to gather information to disprove what had been sent to them in terms of accounts. They again downloaded emails and took possession of a computer and documents to take home. They spoke to staff and allegedly told them there was a good chance of them coming back to manage the store.

The respondents deny that they made any threats or demands. They told Mr.Finn that they did not wish to interfere with the daily operation of the shop, but that they wanted to collect information that was requested from the first applicant. Mr. Finn then voluntarily assisted them to obtain certain documents and information. He suggested that they take the computer and work on it from home. They signed a receipt for it. They only greeted staff and upon a query from one of the members of staff on whether they were coming back indicated that it might be possible. The respondents stated that their last visit to the shop was on 9 June 2009 when they updated Mr. Finn on requests they had made to him and the first applicant. They asked him to contact the first applicant, but he suggested they speak directly to the first applicant by phone which they did.

[6] As stated earlier, the applicants then launched the application on 19 June 2009 as a matter of urgency.

[7] Counsel for the respondents argued that the applicants had not made out a case for urgency. He submitted that there was no explanation why the application was only launched more than two weeks after the last visit (according to applicants’ papers) on 1 June 2009. Respondents countered that the applicants’ attorneys had sought an undertaking from the respondents not to visit the premises which had not been forthcoming. There was also, so it was argued on behalf of the respondents, no reason other than commercial urgency (which was not spelled out) why the matter could not have been set down and argued before the recess, or if that was not possible, why it could not have been set down for argument after the recess. The answer to this was that there is a continuing threat of spoliation which justified setting the matter down in recess.

[8] As indicated earlier, I am not happy with the manner in which the applicants approached the issue of urgency. In order, however, to consider the matter with more time available to me I issued an order last week that the first to fourth respondents were prohibited from physically entering the premises until this judgment is delivered on 16 May 2009. Although that order was not intended to dispose of the issue of urgency I have now had sufficient time to consider the merits of the application and I consider that it would be overly formalistic to determine the matter solely on urgency grounds at this stage.

[9] I have come to the conclusion that the applicants have failed to make out a case that the respondents are threatening to despoil them of their possession and management of the premises. The attempt to characterise the dispute in this application as merely a dispute about possession appears to me to be rather contrived. The real dispute between the parties is one about who has the right to ownership and management of the business. Even on the applicants’ own version the respondents, at best, entered the shop in order to gain access to information which was alleged to be relevant to that underlying dispute. There is no evidence that customers, suppliers or employees were disrupted from continuing with normal business. On the respondents’ version (which is the one that must be accepted for purposes of determining an application where final relief is being sought) they made it clear to Mr. Finn that they did not intend to interfere with the daily running of the business. They acted with his permission in gathering information and documentation and took the computer away on his suggestion. Taking the computer in order to work on it at home in itself belies any intention to enter the premises to take over immediate and physical control of the premises and its management. The fact that the respondents clearly intend to regain control of the management of the business is not sufficient for the application to succeed. Their stated intention was subject to the clear qualification that they needed to gain access to information in order to attain their purpose in a lawful manner. They might well want to get rid of Mr. Finn, but they have not threatened to throw him off the premises or deny him access to the premises: they are trying to find out the legal basis upon which they might remove him.

[10] In the result the application is dismissed with costs.

J.C. Froneman
Judge of the High Court.