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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO.: CA22/2014

DATE HEARD: 12 MAY 2014

DATE DELIVERED: 5 JUNE 2014

In the matter between:

N. X. M.                                                                                                                       Appellant

and

HENDRIK PETER JOHANNES VAN DER MERWE  

(in his capacity as executor of the

Estate Late N. A. M.)                                                                                             Respondent

JUDGMENT

EKSTEEN J:

[1] N. A. M. (the deceased) operated a very successful funeral parlour during his lifetime.  The business started in Grahamstown and later expanded to Port Alfred and thereafter to Port Elizabeth.  The deceased passed away on […….] and the respondent herein (the applicant in the Court a quo) was appointed as the executor in his estate.  In due course a dispute arose between the respondent and the appellant (the third respondent in the Court a quo) and between the appellant and his siblings (first, second, fourth, fifth, sixth and seventh respondents in the Court a quo) relating to the ownership of that part of the business and the business assets which were situated in Grahamstown.  I shall refer to the parties herein for the sake of convenience as they were in the Court a quo.

[2] The applicant obtained a final interdict that the third respondent vacate the premises situated at [……………….].  A further interdict was issued restraining the third respondent from performing a number of business functions on behalf of M. Funeral Parlour, ordering him to hand over the registration documents of vehicles utilised in the business and affording the applicant access to the business premises at […..] Street.  The third respondent appeals with leave of the Judge a quo  against the granting of the interdict. 

The factual background

[3] The deceased commenced business in Grahamstown as a funeral undertaker during or about 1980 trading as a sole trader under the name and style of M. Funerals.  In due course his son, Linda Ocean M., the first respondent, took up employment in the business with the deceased as a salaried employee.  In the early 1990’s the third respondent and his brother Mlungisi, the second respondent,  began to assist the deceased in the business and by doing so learnt the trade.  When the second respondent completed his schooling he formally entered the business with the deceased.  In 1992 the deceased opened a branch in Port Alfred, still trading as M. Funerals.  The deceased ran both the Grahamstown and the Port Alfred branches of his business himself.  The business prospered and during or about 1996 the deceased opened a further branch in Port Elizabeth. 

[4] During 1999 the first respondent left the business of the deceased and opened his own funeral business in Fort Beaufort also trading under the name and style of “M. Funerals”.  The business of the first respondent was, notwithstanding the name, not associated in any manner with that of the deceased.  In 2002 the second respondent too left the deceased’s employ and went into a gas business and a construction company for his own account.  He too had no further involvement in the business of the deceased.  The deceased’s younger son M. M., who passed away in October 2009, then entered the funeral undertaking business together with the deceased. 

[5] During approximately 2004 the deceased experienced [….] difficulties and he relocated to Port Elizabeth.  At that stage he left the management of the Grahamstown business in the hands of the third respondent while he, assisted by M., managed the Port Elizabeth branch of the business and the Port Alfred branch.  During approximately 2005 the deceased obtained M. Funeral Parlour CC and the business of the deceased was conducted through the medium of and under the name of the close corporation.  There is a dispute between the parties as to whether the Grahamstown branch of the business ever formed part of the close corporation business. 

[6] The applicant, as recorded earlier, is the executor in the deceased estate.  He has no personal knowledge of the conduct of the deceased’s business.  In the founding affidavit he contends that prior to the death of the deceased the office in Port Elizabeth and the business in Port Alfred were managed jointly by the deceased and M.  He does not dispute that the business in Grahamstown was run entirely by the third respondent. 

[7] In the course of the administration of the deceased’s estate the applicant called a meeting (herein referred to as “the meeting”) with the first to third respondents and the fifth to seventh respondents (all children of the deceased), which he alleges was to discuss the management of the business.  The applicant avers that at the meeting the third respondent advised that he and the deceased had entered into a verbal lease agreement in terms of which the third respondent would lease the immovable property situated at […..] Street, [……], Grahamstown and Site [……], Grahamstown together with all the office furniture, funeral equipment and motor vehicles necessary to conduct the funeral service in Grahamstown for an amount of R20 000 per month. 

[8] The applicant contended that the third respondent had not paid a single instalment since the death of the deceased.  He says that he demanded payment of the outstanding rental, by then in excess of R900 000, and an amount equivalent to the value of the vehicles and stock in trade.  The third respondent failed or refused to pay and accordingly he has instructed attorneys and counsel to institute action for the recovery thereof. 

[9] By virtue of the precarious financial position of the estate which he was required to administer he called for offers for the purchase of the business.  To this end he requested Attorney Noël Stötter to prepare a valuation of the assets in the estate.  Attorney Stötter prepared a valuation, inter alia, of the immovable properties, on oath.  He states that the properties in Grahamstown were pointed out to him by members of the family (whom he does not identify) but that the valuations and identifications of the properties were extremely difficult.  He records that no guarantee is given in respect of the valuation or identification of the properties. 

[10] In respect of the property at […..] Street, alleged to be on [……], he recorded that no trace could be found of this property registered in the Deeds Office.  The property pointed out to him, however, he records, consists of a funeral parlour, and a painted building used as offices.

[11] Upon obtaining the valuation of assets a contract of sale was entered into between the applicant and the first respondent in respect of that which the applicant considered to be the business of the deceased, which included the business in Port Elizabeth, Port Alfred and Grahamstown and the two immovable properties referred to earlier.  The third respondent remains in possession of the properties and in control of the business in Grahamstown and the applicant contends that this is impeding him in his endeavours to honour the contract of sale to the first respondent.

Factual disputes

[12] It is evident from the aforegoing that the applicant’s case in the founding affidavit was to the effect that the third respondent had, prior to the death of the deceased, managed the business in Grahamstown for his own account in terms of a verbal agreement of lease entered into between himself and the deceased.  By virtue of his failure to pay the rental the applicant has instructed attorneys and counsel to issue summons.  This case is founded entirely on the alleged admission of third respondent at the meeting.  He does not, however, allege that he has cancelled the lease agreement.

[13] In support of the application affidavits were also filed by the first and second respondents.  They confirm that they attended the meeting and confirm the correctness of the applicant’s assertions as to what occurred at the meeting.  They deny, however,  that any verbal agreement of lease was ever concluded between the third respondent and the deceased.  This assertion is founded exclusively on the fact that they state that they communicated with the deceased on a regular basis for many years and that the deceased had never mentioned this agreement to them.  For this reason the first respondent alleged that the third respondent was a mere manager of the Grahamstown branch of the deceased’s business at the time that the deceased passed away.

[14] It is evident that the supporting affidavits of the first and second respondents advance a different case to that relied upon by the applicant, however, on either version the business enterprise of M. Funerals in Grahamstown was part of the estate of the deceased.  I pause to emphasise that the first and second respondents do not allege any primary facts at all from which the conclusion can be drawn that the third respondent was merely a manager.  They do no more than to assert the bald fact.  I shall revert to this aspect later. 

[15] The third respondent in his answering affidavit denies both the version of the events which occurred at the meeting as advanced by the applicant, and as supported by the first respondent and second respondents and the version advanced by the first and second respondents that he had acted merely as a manager of the Grahamstown branch of the deceased’s business. 

[16] The third respondent states that by early 2005 the deceased had lost a fair amount of his vigour and had come to the conclusion that he could no longer attend to all his affairs as had previously been the case.  At that stage the deceased was maintaining his daughters X. (the fifth respondent) and V. (the sixth respondent) and M.  He was also supporting his brother X. and his sister N. and their children in exchange for their assistance in the business.  The business was run from [….] Street, in Tantyi which the third respondent states is an immovable property belonging to the Hani Family.  In return for the use of the building the deceased was also supporting the Hani Family. 

[17] In these circumstances, during or about 2005, so third respondent avers, the deceased and the third respondent entered into an agreement in terms of which the deceased donated the entire business in Grahamstown to the third respondent on condition that he continued to deal with the various matters as the deceased had been doing, that he continued to discharge the deceased’s obligations in respect of his broader family and the Hani Family and that he pay the amounts owed at the time by the deceased to Crankshaws, suppliers of marble and certain other supplies.

[18] Pursuant to this agreement the third respondent obtained a close corporation, Nozomi 102 CC and caused his wife to be registered as the sole member of the close corporation.  A bank account was opened with Standard Bank in Grahamstown for the close corporation and the close corporation proceeded to trade, as the deceased had done before, under the name and style of “M. Funerals” in Grahamstown.  From 2005 to date, the third respondent contends that the business has been conducted in the name of the close corporation and the deceased had been entirely divested of the business.  It was, furthermore, at approximately this time that the deceased rearranged his business structures and acquired M. Funeral Parlour CC for the conduct of the remaining business in Port Alfred and Port Elizabeth.  The third respondent therefore denies that he was a “manager” of the Grahamstown business or that he hired the business at the time of the passing of the deceased in 2008.  He denies in the circumstances that the business in Grahamstown, together with the movable assets therein, constituted part of the estate of the deceased.  I pause to record that it is common cause that both M. Funeral Parlour CC and Nozomi 102 CC were indeed registered in 2005.

[19] In respect of the meeting (which was held in February 2009) the third respondent emphatically denies that he had stated to the applicant or to any other person present that he had leased the business and the premises from the deceased.  He explains that after the death of the deceased divisions arose between himself and his siblings in respect of the estate of the deceased.  He was accused at the time of having “hijacked” the business in Grahamstown.  He accordingly welcomed the meeting which occurred against this background. 

[20] At the meeting, he says, the applicant introduced himself and explained that he had been appointed as the executor in the deceased estate.  He advised that the purpose of the meeting was to facilitate his taking control of the estate.  At this stage the third respondent contends that the applicant turned to him and stated that he had been advised that the third respondent had some arrangement with the deceased in regard to the Grahamstown business.  This the third respondent confirmed and advised the applicant of the arrangement which I have set out earlier herein in terms of which the Grahamstown business was donated to the third respondent in 2005.  The third respondent says that the applicant then advised him that he had been told by third respondent’s brothers that he, third respondent, leased the business and the assets from the deceased for R20 000 per month.  This he denied.

[21] Whilst there remains a fundamental dispute between the applicant and the third respondent as to the events which occurred at the meeting the applicant confirms in reply that prior to the meeting he had indeed been advised by the third respondent’s siblings of the alleged lease agreement.  The third respondent acknowledges his awareness of the origins of the allegation of a lease agreement.  He states that during or about 2008 he was visiting the deceased at his home in […..], Port Elizabeth when the deceased advised him that he wished to purchase a property in Walmer, Port Elizabeth.  He was busy at the time applying to a financial institution for a loan.  The deceased advised that he considered that he would be unable to show sufficient income to justify the granting of the loan and advised, in order to overcome this difficulty, that he intended to indicate on the application form that he was receiving rental of R20 000 in respect of his Grahamstown business.  The third respondent, anxious to assist his father, agreed to sign the necessary papers in confirmation of the information which was to be reflected on the application form.  

[22] Shortly after the passing of the deceased the third respondent states that he confided in his mother in respect of this arrangement between himself and the deceased.  The documentation was, however, a misrepresentation.  His mother confirms his communication to her.

[23] In respect of the premises situated at […..] Street the applicant makes no attempt to make out any right to the property save by reliance on the alleged admission by third respondent at the meeting to which I have referred.  In respect of […..]  Street there is a dispute relating to ownership.  The business of M. Funerals in Grahamstown is conducted from premises in [….] Street.  The third respondent states, as I have alluded to earlier, that the property belongs to Kholiwe Winnie Hani.  The Hani Family occupy portion of the improvements on the property as their home and the remainder thereof is occupied by the business conducted by the third respondent.  Hani has deposed to a supporting affidavit.  She records that she is the head of the Hani household and she confirms that M. Funerals is conducted from her premises which she declares is, in fact, [……] and not […..], as Attorney Stötter had been advised.  She confirms that M. Funerals is conducted from an area constituting approximately ¼  to a ⅓ of the area of the said property and has been so conducted since the early 1980’s.  She proceeds to record that no rental has ever been paid to the owner of the property in respect of the use of the buildings as the deceased had compensated the family by attending to their transport, their funerals and the supply of groceries and that he generally maintained them.  This she confirms that the third respondent took over and he continues to do.  A Windeed search is annexed to her affidavit which confirms that the property at [….] Street (…….), […]i is registered in her name.

[24] In reply the applicant has annexed a VAT invoice in respect of rates and taxes issued by the Makana Municipality in the name of the deceased for the period of September 2012 relating to [....] Street.  The VAT invoice reflects the erf number as […].  Applicant accordingly contends that [....] Street is situated on erf [….] and not erf […], which is […] Street.  The applicant annexes, however, a Deeds Office search which he conducted in respect of erf […], [….].  The Windeed search reflects that the Deeds Office have no records of such an erf.  This is confirmation of the finding of Attorney Stötter.  No supporting affidavit was obtained from any municipal official in respect of this issue nor is any explanation provided in respect of the VAT invoice.

Joinder of parties

[25] What emerges from the papers is that it is the third respondent’s case that M. Funerals in Grahamstown is conducted from the property owned by Hani.  Hani has deposed to an affidavit in which she confirms that she is the owner of the property from which the business is conducted and which displays the number of [....] Street.  The records in the Deeds Office do not contradict her assertion.

[26] The third respondent further contends that the business of M. Funerals is conducted through the vehicle of a close corporation known as Nozomi 102 CC of which his wife is the sole member.  He acquired the close corporation in 2005 which coincides with his version relating to the acquisition of the business during or about that year. 

[27] The order which was granted by the Court a quo was to the effect that the third respondent was directed to vacate the premises situated at [....] Street, Grahamstown within thirty days of the judgment and that the third respondent and his employees were directed to allow the applicant and the first respondent immediate access to the property.  In addition, as recorded earlier, an interdict was issued restraining the third respondent from performing a number of the business functions on behalf of M. Funerals in Grahamstown.

[28] In the event that the third respondent and Hani’s contentions are correct these orders cannot be put into operation without impacting directly upon the alleged rights of Hani in respect of [....] Street, Grahamstown and of Nozomi 102 CC in respect of the business.  It is a well-established principle of our law that parties who have a direct and substantial interest in the right which is the subject matter of the litigation are essential parties to such litigation.  The possibility of such an interest is sufficient and it is not necessary for a court to determine first that it in fact exists.  (See for example Abrahamse and Others v Cape Town City Council 1953 (3) SA 855 (C) at 859C-F.)

[29] In Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 651 the following was stated:

“It was rather a subtle reasoning, which helped the Court to do what it no doubt regarded as substantial justice in the peculiar circumstances of that case, while at the same time enabling it to stand firm on the two essential principles of law that had to be borne in mind, viz. (1) that a judgment cannot be pleaded as res judicata against someone who was not a party to the suit in which it was given, and (2) that the Court should not make an order that may prejudice the rights of parties not before it.”

[30] Later in the same judgment (at 659-660) the following was said:

“Indeed it seems clear to me that the Court has consistently refrained from dealing with issues in which a third party may have a direct and substantial interest without either having that party joined in the suit or, if the circumstances of the case admit of such a course, taking other adequate steps to ensure that its judgment will not prejudicially affect that party's interests. …  It must be borne in mind, however, that even on the allegation that a party has waived his rights, that party is entitled to be heard; for he may, if given the opportunity, dispute either the facts which are said to prove his waiver, or the conclusion of law to be drawn from them, or both.”

[31] In the Amalgamated Engineering Union case, supra, two tests were used to decide whether a third party had a direct and substantial interest.  The first was to decide whether the third party would have locus standi to claim relief concerning the same subject matter.  (See Amalgamated Engineering Union supra at 661.)  The second was to consider whether a situation could arise, in which, because the third party had not been joined, any order that the court might make would not be res judicata against him, entitling him to approach the court again concerning the same subject matter and possibly obtain an order irreconcilable with the order made in the first instance (see Amalgamated Engineering Union supra at 660-661).

[32] Employing these two criteria I think that Hani may well have locus standi to approach a court and to claim relief concerning the occupation of [....] Street, Grahamstown.  The judgment of the Court a quo is not res judicata as against Hani and, were she to approach a court to obtain, for example, an interdict restraining the applicant and the first respondent from entering upon the premises, she may obtain an order irreconcilable with that issued by the Court a quo.  She is, in my view, an essential party to the proceedings.  Notice to her would not suffice. 

[33] By parity of reasoning Nozomi 102 CC would, if the business is conducted through this vehicle, have locus standi to approach a court and to obtain an order entitling it to conduct the business activities of M. Funerals in Grahamstown which is irreconcilable with the order issued by the Court a quo.  Nozomi 102 CC was clearly also an essential party to the litigation.

[34] In these circumstances the Court a quo ought, mero motu, to have raised the non-joinder of these parties and to have declined to deal with the matter until these parties had been joined.  In this regard the Court a quo, I think, erred, however, by virtue of the conclusion to which I have come below it is not necessary in this instance to refer the matter back to the Court a quo for the joinder to be effected and for these parties to be heard before the application is reconsidered. 

Approach to factual disputes

[35] It may be seen from the summary of factual disputes which I have set out earlier that the papers filed in the application are replete with factual disputes in particular relating to the events which occurred at the meeting, the ownership of M. Funerals in Grahamstown and the rights of occupation of the immovable property at [....] Street. 

[36] The approach to evidence where final relief is sought in motion proceedings, as is the case in the present matter, was considered in Stellenbosch Farmers’ Winery Limited v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-G where Van Wyk J said:

“..  where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order. …  Where it is clear that facts, though not formally admitted cannot be denied, they must be regarded as admitted.”

[37] This general rule as formulated in the Stellenbosch Farmers Winery case, supra, was reconsidered in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) where Corbett JA, as he then was at 634G-635C said:

“It seems to me, however, that this formulation of the general rule, and  particularly the second sentence thereof, requires some clarification and, perhaps, qualification.  It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.  The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation.  In certain instances the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact ....  If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court ... and the Court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks.  ...  Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.”

[38] This qualification articulated by Corbett JA accords, I think, with the approach set out in this court in Soffiantini v Mould 1956 (4) SA 150 (E) where Price JP at 154F-H said:

“If by a mere denial in general terms a respondent can defeat or delay an applicant who comes to Court on motion, then motion proceedings are worthless, for a respondent can always defeat or delay a petitioner by such a device.

It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem.  The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so.  Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.”

[39] In the Soffiantini case the court was concerned with a general bald denial.  The dictum referred to above is however not restricted to such a case.  In Truth Verification Testing Centre v PSE Truth Detection CC and Others 1998 (2) SA 689 (W) Eloff AJ stated at 698H-J:

“I am also mindful of the fact that the so-called 'robust, common-sense, approach' which was adopted in cases such as Soffiantini v Mould 1956 (4) SA 150 (E) in relation to the resolution of disputed issues on paper usually relates to a situation where a respondent contents himself with bald and hollow denials of factual matter confronting him. There is, however, no reason in logic why it should not be applied in assessing a detailed version which is wholly fanciful and untenable.”

This, I think, accords with the closing remarks of Corbett JA in the passage quoted earlier from Plascon-Evans Paints supra. 

[40] The approach enunciated by Eloff AJ was approved in the Supreme Court of Appeal in Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading  (Pty) Ltd and Another 2011 (1) SA 8 (SCA) at 14B-D where Shongwe JA, having quoted the aforesaid dictum from the Truth Verification Testing Centre  case stated:

“The court should be prepared to undertake an objective analysis of such disputes when required to do so. In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) ([2008] 2 All SA 512) it was suggested how that might be done in appropriate circumstances.”

[41] In Wightman’s case, to which Shongwe JA referred in the Truth Verification case, supra Heher JA at 375H-376C stated:

“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 in circumstances all of which need to be borne in mind when arriving at a decision.  A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party.  But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them.  There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit.  If that does not happen it should come as no surprise that the court takes a robust view of the matter.”

[42] These authorities set out the legal principles which find application where disputes of facts arise in an application of the type under consideration.

Application of legal principles to dispute of facts

[43] The Judge a quo disposed of the disputes of facts in approximately half a page of her judgment.  No authorities were referred to therein and no analysis of the facts was embarked upon.  In granting leave to appeal the Judge a quo remarked that she had neglected to record in her judgment that the test enunciated in Plascon-Evans Paints supra does not find application.  No reasons for this conclusion were provided.  Clearly the applicant herein sought final relief by way of application.  I can conceive of no basis in logic or in law to support the conclusion that the dictum set out above in Plascon-Evans Paints supra does not apply.  To this extent the Judge a quo clearly erred.  Mr Cole, who appeared on behalf of the applicant in the appeal, did not argue the contrary.  Rather it is contended on behalf of the applicant, reliant on the dictum in Plascon-Evans and the further cases referred to earlier, that there is no real, genuine or bona fide dispute of fact and that accordingly we should adopt a robust approach and dismiss the averments made by the third respondent on the papers alone.

[44] A real dispute of fact arises most obviously when the respondent denies material allegations made by deponents on the applicant’s behalf and produces positive evidence to the contrary.  It may also arise where the respondent admits the applicant’s affidavit evidence but alleges other facts, which the applicant disputes.  A real, genuine and bona fide dispute of fact can, however, 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 (see Wightman’s case supra at 375G-H).

[45] I have recorded earlier that the applicant, in his founding affidavit, relies exclusively on an alleged admission by the third respondent that he hired the properties at [……] Street and […..] Street together with all the office furniture, funeral equipment and motor vehicles necessary to conduct the funeral service from the deceased.  The applicant provides no version of the events which occurred at the meeting save to state that during the meeting the third respondent made these statements. 

[46] The third respondent has categorically denied that he made these statements.  By virtue of the manner in which this communication has been dealt with in the founding affidavit a bare denial would probably suffice in respect of this dispute.  The third respondent has not, however, contented himself with a bare denial and has set out a far more detailed version of the events which led up to the meeting and which occurred during the meeting.

[47] The third respondent, as set out earlier herein, contends that it was the applicant who had advised him that his siblings (first and second respondents) contended that the third respondent maintained that he had leased the business in Grahamstown.  The third respondent in answering the case of the applicant sets out a detailed version as to the origin of the allegation that a lease agreement came into existence between himself and the deceased.  This cannot be said to be a case where the third respondent has rested his case on a bare or ambiguous denial.  In any event all the respondents who have filed affidavits herein deny that such a lease agreement existed.  There could be no basis on the papers for concluding that a lease agreement existed.  The dispute relates only to what occurred at the meeting.

[48] The applicant acknowledges in reply that prior to the meeting he had been advised by the third respondent’s brothers that the third respondent alleged that he had leased the property from the deceased.  He did accordingly know of the allegation prior to the meeting and he was therefore in a position to have raised it himself.   In these circumstances I do not think that it can be said that the denial by third respondent is uncreditworthy nor that it is palpably implausible, far-fetched or clearly so untenable that the court is justified in rejecting it merely on the papers (compare Plascon-Evans Paints supra at 634I-635D; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para [55];  Thint (Pty) Ltd v National Director Public Prosecutions and Others;  Zuma v National Director Public Prosecutions and Others 2009 (1) SA 1 (CC) para [8] - [10] and  National Director Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at 290F). 

[49] In the supporting affidavit filed by the first and second respondents together with the founding affidavit of the applicant the first and second respondents aver that the third respondent only managed the Grahamstown branch of M. Funerals on behalf of the deceased and the close corporation.  The affidavit as recorded earlier contains no more than this bald assertion and no primary facts are alleged in the founding papers to justify this conclusion.

[50] The third respondent has set out a detailed version as to how he became the owner of the Grahamstown branch and explained the obligations which he assumed as a condition for the donation made by the deceased.  Hani has filed a supporting affidavit confirming that the third respondent had discharged these obligations towards her family.  The fifth and sixth respondent filed supporting affidavits in reply and neither of them dispute that the third respondent took over the maintenance responsibility towards them from the deceased in approximately 2005.  Moreover the broader matrix of circumstances, which are not disputed, do not detract from the version of the third respondent.  It is not in dispute that the deceased withdrew from active participation in the management of the Grahamstown branch in 2004.  He thereafter, together with Monwabisi managed only the Port Alfred and Port Elizabeth branches.  It is not in dispute that in fact the third respondent did acquire Nozomi 102 CC in 2005 and caused his wife to be registered as the sole member thereof.  M. Funeral Parlour CC was also established in 2005 which may be supportive of the restructuring of the deceased’s business at the time.  There is no evidence of any transaction ever concluded by M. Funeral Parlour CC in Grahamstown or in respect of the alleged Grahamstown branch of the business of this close corporation.

[51] The first, second and fourth to seventh respondents have no knowledge of the alleged transaction and are unable to dispute the averments made by the third respondent on any factual basis.  This, of course, is not conclusive.  In Da Mata v Otto NO 1972 (3) SA 858 (A) at 869B-E it was stated:

“In regard to the appellant's sworn statements alleging the oral agreement, it does not follow that because these allegations were not contradicted - the only witness who could have disputed them had died - they should be taken as proof of the facts involved. Wigmore on Evidence, 3rd ed., vol. VII, p. 260, states that the mere assertion of any witness does not of itself need to be believed, even though he is unimpeached in any manner, because to require such belief would be to give a quantative and impersonal measure to testimony. The learned author in this connection at p. 262 cites the following passage from a decision quoted:

'It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it established the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts - testimony which no sensible man can believe - goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded.'”

[52] On behalf of the applicant it is argued that the version of the donation advanced by the third respondent is such testimony which no sensible man can believe.  I am unable to agree.  The undisputed facts show that only Monwabisi and the third respondent remained in the management of the business with the deceased after 2002.  The first and second respondents had totally withdrawn and had pursued their own business interest.  Monwabisi, who has since passed away, remained in the business with the deceased in Port Alfred and in Port Elizabeth.  The third respondent was, on any version, exclusively in control of the management of the Grahamstown branch.  In these circumstances and in the context of the family affairs I do not think that the version can be dismissed on the papers alone.  It is not incompatible with the broader matrix of circumstances which prevailed at the time and to which I have referred earlier. 

[53] On behalf of the applicant a rule 35(14) notice was served on the third respondent’s attorneys prior to filing the applicant’s replying papers.  The third respondent’s attorneys declined to respond to the notice.  The thrust of the argument on behalf of the applicant in the appeal before us was that the version of the third respondent falls to be rejected on the papers alone because the third respondent has provided no documentary support of the allegations made in respect of his claim and in particular that he has declined to provide documentation requested in terms of the provisions of rule 35(14). 

[54] Rule 35(14) provides as follows:

“(14)       After appearance to defend has been entered, any party to any action may, for purposes of pleading, require any other party to make available for inspection within five days a clearly specified document or tape recording in his possession which is relevant to a reasonably anticipated issue in the action and to allow a copy or transaction to be made thereof.”

“Action” is defined in rule 1 as “a proceeding commenced by summons”.  The rule does not apply to application proceedings. 

[55] Furthermore what is required in terms of rule 35(14) is the inspection of “a clearly specified document”.  The rule is designed to enable a party to an action to obtain the production of a specific document of which he has knowledge and which he or she can describe precisely.  It does not provide a mechanism whereby a party may, by making use of generic terms, cast a net with which to fish for vaguely known documents.  (See Cullinan Holdings Ltd v Mamelodi Stadsraad 1992 (1) SA 645 (T) at 648F;  The MV Urgup:  Owners of the MV Urgup v Western Bank Carriers (Australia) Pty Ltd and Others 1999 (3) SA 500 (C) at 515C-I;  and Quayside Fish Suppliers CC v Irvin & Johnson Ltd   2000 (2) SA 529 (C) at 534E-G.)

[56] What the applicant sought in the rule 35(14) notice was “proof of payment to Crankshaws”;  “proof of bank account in the name of Nozami 102 CC with Standard Bank as at 2005”;  “bank statements of Nozami 102 CC from the inception to date”;  “proof of accounts with suppliers of coffins in the name of Nozami 102 CC from 2005”;  “proof of accounts of Nozami 102 CC with each and every supplier of requirements in the business from 2005 to date”;  “proof of payment of Crankshaws and each and every supplier of Nozami 102 CC from 2005 to date”;  “proof of payment and registration documents of motor vehicles acquired by Nozami 102 CC from 2005 to date”;  and “proof of insurance of Nozami 102 CC with insurers in the industry, more particularly, but not limited to Prosperity Funeral Administrator from 2005 to date”.  I do not think that any of these requests relate to a specified document which the applicant was able to describe precisely.  Furthermore, the test for the delivery of a document in terms of rule 35(14) is whether the document in question is essential, not merely useful, in order to enable a party to plead.  (See Cullinan Holdings Ltd supra at 647E-F.)  The replying affidavit of the applicant records that first and second respondents advised that none of the family members or employees ever mentioned the existence of the arrangement for which the third respondent contends. It proceeds to say that applicant’s attorneys served a rule 35(14) notice “to obtain information” which may verify third respondent’s averments.  This clearly is a mechanism to fish for vaguely known documents and there has been no argument that the documents were essential in order to reply to third respondent.

[57] In the circumstances the notice in terms of rule 35(14) was misguided and the third respondent was entitled to decline to deal with it.  Nothing can be made of the rule 35(14) notice and the refusal to entertain such a notice does not detract from the bona fides of the dispute which has been raised.

[58] I pause to record that it would appear that the applicant probably intended a notice in terms of rule 35(12).  The material portions of rule 35(12) provides:

“Any party to any proceedings may at any time before the hearing thereof deliver a notice … to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcription thereof. …”

[59] Rule 35(12) does apply to application proceedings, however, it requires a party to make available for inspection a document to which reference is made in the affidavits filed by that party.  It is true that sub-rule 35(12) authorises the production of documents which are referred to in general terms in pleadings or affidavits and do not require a detailed or descriptive reference to such documents (see Erasmus:  Superior Court Practice p. B1-260 and the authorities referred to therein).  Reference by mere deduction or inference, however, does not constitute a “reference” as contemplated in the sub-rule.  (See Penta Communication Services (Pty) Ltd v King and Another 2007 (3) SA 471 (C) at 476B-C.)  I think that the documents or other forms of proof demanded by the applicant in his notice in terms of rule 35(14) or fall into the latter category.  In the circumstances he could not avail himself of the provisions of rule 35(12) either. 

[60] In all the circumstances had the Court a quo approached the disputes of fact in accordance with the legal principles set out earlier herein then I consider that it was bound to find that a bona fide dispute existed in respect of the ownership of the business which could not be resolved on the papers.

The immovable properties

[61] I turn to consider the immovable properties.  I have alluded earlier to the fact that the only reference to Site 10, Mpondo Street in the founding papers is in the alleged admission by the third respondent that he had leased these premises from the deceased and the valuation thereof by Attorney Stötter.  I have already dealt with the dispute of fact relating to this admission.  It is in any event common cause between the third respondent and the remaining respondents, on whose evidence the applicant relies, that no such lease was ever entered into.  Neither the applicant nor first and second respondents make any allegation that the deceased or M. Funeral Parlour CC ever owned […] Street nor is any other right to the property alleged.  Attorney Stötter states merely that the immovable properties which he valued were pointed out by unidentified family members.  His valuation and description of this property does not reflect any information from the Deeds Register of the registered owner of the property.  The applicant has, in my view, made out no case for an interdict that the third respondent vacate these premises.  It follows that the applicant has made out no right in respect of Site […..] Street. 

[62] In respect of [....] Street it is common cause that the property is not registered in the name of the deceased or M. Funeral Parlour CC.  The applicant nevertheless contends that the deceased owned the property.  The Deeds Office has no record of the existence of such an erf.  The ownership of this property is therefore in dispute.

[63] The evidence of Hani is that M. Funerals is conducted from a building on her property which is in fact erf […].  The dogmatic insistence by the applicant, bolstered only by a VAT invoice in respect of rates and taxes, that the business is conducted from erf […] is in my view untenable.  I have recorded earlier that no affidavit has been obtained from any municipal official to explain the source of the information in the VAT invoice or to verify even the existence of erf [….].  I am inclined to the view that no real or bona fide dispute of fact exists in respect of [....] Street.  The applicant has accordingly made no case for an interdict that the third respondent vacate these premises. 

[64] Even if I were incorrect in the view which I hold in respect of [....] Street, at best for the applicant, there is a bona fide dispute in respect of the ownership of the premises  from which the funeral services is conducted which cannot be resolved in the absence of oral evidence.

Conclusion

[65] In the circumstances, it seems to me that the Court a quo erred in holding that the applicant had established a clear right to any of the relief sought on the papers alone.  Neither party requested the matter to be referred to oral evidence and the test enunciated in Plascon-Evans supra must therefore be applied.  Final relief can only be granted if those facts averred by the applicant which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.  In the present matter they clearly do not and the appeal must accordingly succeed.

Order

[66] In the result, the following order is made:

1.         The appeal is upheld with costs ;  and

2.         The order of the Court a quo is set aside and the following is substituted therefore:

“The application is dismissed with costs.”

J W EKSTEEN

JUDGE OF THE HIGH COURT

SCHOEMAN J:

I agree.  It is so ordered.

I SCHOEMAN

JUDGE OF THE HIGH COURT

RUGUNANAN AJ:

I agree.

S RUGUNANAN

ACTING JUDGE OF THE HIGH COURT

Appearances:

For Appellant:           Adv K Watt instructed by Whitesides Attorneys, Grahamstown

For Respondent:      Adv S Cole instructed by Messrs Keyter Attorneys, Grahamstown

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