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[2009] ZAECGHC 83
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Loader and Another v Hamer (1/2009) [2009] ZAECGHC 83 (26 November 2009)
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FORM A
FILING SHEET FOR EASTERN CAPE, GRAHAMSTOWN JUDGMENT
PARTIES:
Registrar:
Magistrate:
High Court: EASTERN CAPE, GRAHAMSTOWN
DATE HEARD: 29 October 2009
DATE DELIVERED: 26 November 2009
JUDGE(S): SMITH AJ
LEGAL REPRESENTATIVES –
Appearances:
for the Plaintiff(s)/Applicant(s)/ Appellant(s): Adv. S.S.W. Louw
for the Defendant(s)/Respondent(s): Adv. O.H. Ronaasen
Instructing attorneys:
Plaintiff(s)/ Applicant(s)/Appellant(s): Netteltons
118A High Street
GRAHAMSTOWN
(Mr Hart)
Defendant(s)/Respondent(s): Neville Borman & Botha
22 Hill Street
GRAHAMSTOWN
(Mr Powers)
CASE INFORMATION -
Nature of proceedings : Interdict
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – GRAHAMSTOWN)
|
Case No.: 1/2009 |
|
Date delivered: 26/11/2009 |
In the matter between:
|
|
GARY CLIVE LOADER |
First Applicant |
LORAINE FLEUR CAMPBELL |
Second Applicant |
and
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DIRK HAMER |
Respondent |
J U D G M E N T
|
SMITH AJ:
The applicants seek an order interdicting and restraining the respondent from harassing them. The matter concerns ongoing hostilities between the parties who are all residents of Boesmansriviersmond and allegedly have its origins in a disputed decision by the Department of Housing, Local Government and Traditional Affairs and the Ndlambe Municipality to sell to the first applicant a pedestrian passageway adjoining his property.
The applicants’ case is essentially as follows:
[2.1] During November 2005 the second applicant witnessed the respondent lifting rubble and garden refuge and throwing it across their driveway. He also jammed a pipe in their electronic gate to prevent it from opening;
[2.2] During 2006 the respondent attempted to run down the second applicant with his vehicle. It is alleged that the respondent swerved his vehicle in the direction of the second applicant so as if to run her down but at the last minute changed direction and drove off;
[2.3] On 15 August 2008 the respondent, at the time driving a white LDV, again swerved his vehicle in the direction of the second applicant so that the vehicle almost brushed her arm;
[2.4] On 29 October 2008 the respondent again turned his vehicle into the lane in which the first applicant was walking, raced up behind him and then at the last minute slammed his brakes only narrowly missing the first applicant and his dog.
The respondent put up his own detailed version of the events, essentially denying that he harassed the applicants.
At the commencement of the hearing the respondent applied for several portions of the applicants’ founding and replying affidavits to be struck out. In respect of paragraph 6.3 of the first applicant’s founding affidavit, Mr Ronaasen who appeared on behalf of the respondent, submitted that it comprises unsubstantiated and inadmissible hearsay evidence which is not supported by the confirmatory affidavit of attorney De Jager. It is indeed so that De Jager, in his confirmatory affidavit, confirms only the correctness of paragraphs 8.8 and 12 of the first applicant’s founding affidavit. The impugned paragraph, which contains evidence relating to a statement which De Jager allegedly made to the first applicant regarding certain admissions made to him by the respondent, therefore clearly constitutes inadmissible hearsay evidence and falls to be struck out for this reason.
Mr Ronaasen submitted that paragraph 8.8 of the applicants’ founding affidavit also contains unsubstantiated and inadmissible hearsay evidence. It refers to annexure “GCL1” to the applicants’ founding affidavit which in turn relates to information allegedly imported to attorney De Jager by one Pachonick while no confirmatory affidavit by Pachonick has been filed. This paragraph therefore clearly constitutes inadmissible hearsay evidence and its contents, together with “GCL1”, fall to be struck out as such.
The respondent’s objection to paragraphs 3.2, 4.2.1.1, 4.2.1.2, 4.2.1.3 and 4.2.2 is based on the submission that these constitute new matter which should have been in the first applicant’s founding affidavit. These paragraphs contain further detailed allegations regarding discussions between attorney De Jager and the respondent. Mr Louw, who appeared on behalf of the applicants, submitted that the respondent was entitled to include these allegations in their replying papers because they were elicited by issues raised by the respondent in his answering affidavit. I am of the view that there is no merit in this argument. The first applicant has dealt with the alleged discussion between attorney De Jager and the respondent in his founding affidavit and the applicants did not provide any reasons why this information was not included in that affidavit. The contents of these paragraphs clearly constitute new matter and I am of the view that the respondent would be prejudiced if these are allowed to stand.
In respect of paragraph 4.3 of the first applicant’s replying affidavit, Mr Ronaasen submitted that the contents thereof constitute vexatious matter as it refers to settlement negotiations between the parties. I agree with Mr Ronaasen’s submissions in this regard. The contents of this paragraph are indeed irrelevant to the merits of the application and such fall to be struck out as vexatious matter.
In respect of paragraph 4.4. and the last sentence of paragraph 4.6, Mr Ronaasen submitted that these constitute unsubstantiated and inadmissible hearsay evidence. The impugned matter in these paragraphs once again refers to statements which the respondent allegedly made to De Jager and which have not been confirmed by him. I am therefore of the view that these portions of the applicants’ replying affidavit fall to be struck out for the reason that it constitutes inadmissible hearsay evidence.
Mr Ronaasen submitted also that paragraph 10 of the applicants’ replying affidavit and in particular the portion commencing with the words: “In fact there were numerous trashings” and ending with the words: “this cannot be construed as a coincidence” constitute new material which should have appeared in the first applicant’s founding affidavit. I am similarly of the view that the impugned portion of paragraph 10 indeed constitutes a new material and falls to be struck out for that reason.
The respondent’s attack on the last two sentences of paragraph 10 is founded on the basis that they are vexatious in that they refer to paragraph 6.3 of the first applicants’ founding affidavit which the first applicant had admitted was factually incorrect. The said portion reads as follows:
“In fact he earlier admitted as much to attorney Werner De Jager, but now tries to tailor his own version. This will be more fully dealt with herein below.”
It is indeed so that the first applicant admits in paragraph 4.2.3 of his replying affidavit that the statements attributed to attorney De Jager in paragraph 6.3 of his founding affidavit have not been correctly stated. His continued reliance on the contents of the said paragraph 6.3, which in any event, for the reasons stated above fall to be struck out, is therefore vexatious. I am of the view that this portion of first applicant’s replying affidavit should also be struck out on this basis. The same applies to paragraph 13 of first applicant’s replying affidavit where reference is once again made to paragraph 6.3 of his founding affidavit.
The respondent’s attack on paragraphs 15, 16 and annexure “GCL3” to the first applicant’s replying affidavit is based on the fact that there has not been any confirmatory affidavit by the second applicant. These portions of first applicant’s replying affidavit therefore constitute inadmissible hearsay evidence. At some stage during the course of his argument Mr Louw indicated that the applicants may seek leave to file the second applicant’s confirmatory affidavit. He however subsequently informed me that the applicants would not be filing such a confirmatory affidavit. In the light thereof there can be no doubt that the impugned portions of the applicant’s replying affidavit therefore constitute inadmissible hearsay evidence and fall to be struck out as such.
I am of the view that the respondent would be prejudiced if the impugned paragraphs are not struck out. It is appropriate for the usual cost order in this regard to follow and that the applicants should therefore be jointly and severally liable for the payment of the respondent’s costs occasioned by the application to strike out.
MERITS
Mr Louw has urged me to find that there are no real disputes of fact on the papers and that the probabilities so strongly favour the applicants’ case that the matter should be decided in favour of the applicant without referring to oral evidence. I must say that Mr Louw had considerable difficulties in sustaining this line of argument. There are indeed massive disputes of facts on the papers. The difficulty that the applicants face in this regard is that the respondent has chosen to not simply make bare denial regarding the allegations of harassment but has provided full details of his version where appropriate.
In the matter of Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 at 375f-I Heher JA had the following to say regarding this issue:
“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say 'generally' because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision.”
I am of the view that on this test, the evidence put up by the respondent in his replying affidavit clearly raises real, genuine and bona fide disputes of fact. In such a case the Court has a discretion in terms of Rule 6(5)(g) to either dismiss the application or make such an order as may seems meet with a view to ensuring a just and expeditious decision.
Mr Ronaasen has urged me to dismiss the application, submitting that the applicants should have realized when launching the application that serious disputes of fact were bound to develop. He submitted the Court would be bound to decide the matter on the basis of the respondent’s version. See Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-645.
I am not convinced however that the applicants should have foreseen that such a dispute of fact could develop. The incidents on which the applicants relief is founded, at least on their version, happened in broad daylight, they had personal knowledge thereof and when attorney De Jager was requested to intervene, his report to the applicants did not suggest that there would be serious disputes of fact in this regard. This is so despite the fact that the first applicant conceded that statements attributed to De Jager and the applicant in his founding affidavit had been overstated. The fact of the matter is that at the stage when the applicants launched their application there was no indication whatsoever that their allegations would be seriously disputed by the respondent. Proceedings for the type of relief sought by the applicants in this matter are usually launched by motion proceeding and unless there were clear indications at that stage that a serious and bona fide dispute fact could arise, it is not appropriate for the Court to adopt a robust approach. I am of the view that the issues which need to be decided in this matter can be clearly confined and circumscribed in such a way as to result in a speedy determination of the issues.
Mr Ronaasen has however submitted furthermore that in the event on the applicants’ own papers, they have been unable to satisfy all the requirements of a restraining interdict. He submitted in particular that the applicants have failed to show that the injury complained of was of an ongoing nature and that there was therefore reasonable apprehension of further interference with their personal integrity. (See Free State Gold Areas Ltd v Merriespruit (OFS) Gold Mining Company Limited 1961 (2) SA 505 W at 515E–F.) He submitted that the injuries which the applicants complain of are clearly not of an ongoing nature, the last incident having occurred in October 2008 and that since the launch of the proceedings there have not been any further incidents. He argued that there can therefore be no reasonable apprehension of further injury so as to satisfy the tests set out in Nester and Others v Minister of Police and Others 1984 (4) SA 230 SWA at 244 and approved by the Supreme Court of Appeal in the matter of Minister of Law and Order and Others v Nordien and Another 1987 (2) SA 894 (A) at 896F-I. In these matters it was held that the test for reasonable apprehension is an objective one and the Judge hearing the matter must decide on the facts presented to him whether there is a basis for the entertainment of reasonable apprehension by the applicant.
I do not agree with argument. The incidents which the applicants complain of have occurred over an extended period of time and are clearly the result of ongoing hostilities between the parties. There can be no significance attached to the fact that no further incidents occurred since the launching of the application. In fact this is hardly surprising. One would expect the parties to be more circumspect regarding their behaviour towards one another while proceedings in the High Court are pending. The main thrust of the applicants’ case is in my view not founded on trivial incidents but involve allegations of serious threat to their personal integrity. Under these circumstances I am satisfied that objectively viewed, the facts before me would, if proved in due course, establish a basis for reasonable apprehension of further interference with the applicants’ personal integrity.
For these reasons I am of the view that the matter should be referred for oral evidence for the determination of certain clearly defined issues.
Mr Ronaasen submitted that in the event of the Court deciding to refer the matter for the hearing of oral evidence, the applicants should be ordered to pay the costs, including the cost in relation to the preparation and filing of the heads of argument. In support of this contention he handed up a letter from respondent’s attorneys to the applicants’ attorneys wherein the view is express that there are material factual disputes and that the matter should therefore be referred for oral evidence. He submitted that the need for the filing of heads of argument in this regard and the argument presented to the Court at the hearing of this matter could have been obviated if the applicants adopted a reasonable approach and simply agreed to the referral for oral evidence. I am of the view however that it will be appropriate for this issue to stand over for determination by the Court hearing oral evidence where all relevant issues can be properly ventilated.
In the result I make the following order:
The application is postponed to a date to be arranged with the Registrar of the High Court for the hearing of viva voce evidence.
The founding, answering and replying affidavits filed of record shall serve as pleadings.
Save in the case of any persons who have already deposed to affidavits in these proceedings, neither party shall be entitled to call any person as a witness, save with the leave of the Court and after notice has been served on the other party at least
14 (fourteen) days before the date appointed for the hearing wherein the evidence to be given in chief by such a person is set out.
The issues to be resolved at such a hearing are as follows:
whether or not the respondent harassed the applicants in the manner alleged in paragraphs 6, 7, 8 and 9; of the applicant’s founding affidavit;
The question of costs shall stand over for determination by the court hearing the viva voce evidence.
The following portions of the first applicant’s founding and replying affidavits respectively are struck out:
Paragraphs 6.3 and 8.8 of the first applicant’s founding affidavit;
Annexure “GCL1” to the first applicant’s founding affidavit;
Paragraphs 3.2; 4.2.1.1; 4.2.1.2; 4.2.1.3; 4.2.2; 4.3 and 4.4 of the first applicant’s replying affidavit;
The last sentence of paragraph 4.6 of applicant’s replying affidavit.
The portion of paragraph 10 of applicant’s replying affidavit commencing with the words: “in fact there were numerous trashings” and ending with: “this cannot be construed as coincidence”, as well as the last two sentences of paragraph 10.
Paragraphs 13, 15 and 16 of the first applicant’s replying affidavit and annexure “GCL3” to first applicant’s replying affidavit.
The applicants are ordered to pay the costs occasioned by the application to strike out, jointly and severally, the one paying the other to be absolved.
_________________________
J.E. SMITH
JUDGE OF THE HIGH COURT (ACTING)