---

KURUMAN CAPE BLUE ASBESTOS (PTY.) LTD. v. BOSHOFF.

(NORTHERN CAPE DIVISION.)

 

1972. September 8, 11. VAN RHYN, A.J.P., VAN DEN HEEVER, J., and BRINK, A.J..

 

Execution.-Ejectment order granted.-Appeal noted.-Order for execution of the writ nevertheless obtained under sec: 78 of Act 32 of 1944.-Respondent then obtaining a rule nisi pending review of that order.-Appeal against.-Respondent showing no prospect of success on review.-Appeal allowed.

 

The appellant company had obtained an order for ejectment against the respondent and had, in terms of section 78 of Act 32 of 1944, applied for and obtained an order for execution of the writ despite the noting of appeal. The respondent had thereafter obtained an interim interdict in the form of a rule nisi in which he prayed that the execution of the writ be suspended pending a review of the magistrate's decision under section 78. Paragraph 1 of the order provided that the execution of the writ be suspended to the date of judgment by the Supreme Court in the appeal against the magistrate's decision on summary judgment and in respect of the review of the proceedings before the magistrate; In an application by the company to appeal against the interdict, the Court held that leave was not necessary. In· an appeal against the decision, it appeared that no appeal had been noted against the magistrate's order under section 78.

 

Held, that there was no prospect of success in a review of the magistrate's order under section 78 on the only ground and possible grounds revealed by the documents on which respondent had applied for an interdict.

 

Held, accordingly, that the appeal succeeded with costs, and that the rule nisi had to be discharged with costs.

 

Held, further, that an application to appeal to the Appellate Division should be dismissed.

 

Appeal against a decision of DE VOS HUGO, J.P. The facts appear from the judgment.

 

N.W. Zietsman, for the appellant.

D. E. M. H. de Flamingh, for the respondent.

 

[The appeal succeeded and the following reasons were handed down later.]

 

VAN DEN REEVER, J.: The appeal which followed on appellant's application for leave to appeal-which leave had been ruled to be unnecessary on 14^th June, 1972 - succeeded on 8^th September. The reasons follow here.

 

A summary of the facts is repeated here for convenience sake. Also for convenience sake I again call the appellant the company and respondent by his surname :

 

1.         The company issued summons against Boshoff in the magistrate's court and averred that the contract of service between thein had been terminated on 17.5.1972. The contract itself-attached-provides that Boshoff undertook: "immediately upon termination of my services ... to vacate any house supplied by the company".

 

2.         (a) Boshoff entered appearance to defend, and the company asked for summary judgment. Boshoff opposed the application. In his affidavit heavers:

 

"I am an employee as defined in the Industrial Conciliation Act, 28 of 1956, and plaintiff is an employer in terms of the said Act. Plaintiff's alleged dismissal of me is contrary to the provisions of the Act because it, inter alia, amounts to victimisation of myself and such dismissal is in terms of the said Act of no force and effect and consequently also any steps for my ejectment."

 

(b)       What happened at the hearing of the application for summary judgment is in issue.

 

(i)         According to Boshoff the magistrate indicated that he was not satisfied that the opposing affidavit was sufficiently comprehensive and that the defence should have been set out more fully. Thereupon Boshoff's legal representative asked to lead viva voce evidence. The company's·advocate opposed this application. The magistrate then refused the application.

 

(ii)        According to Mr. Lourens, relieving mine manager of the company, no application was made in the first place to supplement the affidavit orally. It was argued on behalf of Boshoff that the affidavit was sufficiently comprehensive, but if the court Wanted to put questions. to Boshoff the attorney was prepared to call him as a witness, in which event the attorney would simply ask him whether he had been dismissed on account of trade union activities and Boshoff would reply affirmatively. The legal representative then instructed Boshoff to enter the witness-box, thereupon the magistrate directed his attention to the fact that he must first ask for leave to lead oral evidence, which was then done.

 

In reply to a question by the magistrate the company's advocate said that he left it in the hands of the court whether such evidence should be heard; but that it was unfortunate that Boshoff had sat in the court during the arguments and, therefore, heard what he was expected to say. Thereupon the magistrate said that such evidence would not take the case any further and he instructed the witness to leave the witness-box.

 

(c)        The magistrate granted summary judgment.

 

3.         Boshoff  noted appeal against the granting of summary judgment.

 

4.         (a) In t rms of sec.·78 of the Magistrates’ Courts Act the company applied for execution of the writ despite the noting of appeal. An affidavit by Mr. Lourens supported the application. I shall return to the contents thereof.

 

(b)       A long opposing affidavit was filed by Boshoff, but it is unnecessary to analyse it in detail.

 

(c)        An application was also made to strike out the major portion of Lourens's affidavit "because it amounts to hearsay evidence or is otherwise inadmissible''.

 

(d)       The magistrate authorised execution·before the appeal was heard.

 

5.         (a) Boshoff then came to the Supreme Court on 14^th June, 1972 and obtained a rule nisi, ex parte with return date 14^th July which called on the company to give reasons why the execution of the writ authorised by the magistrate, should not be suspended pending the hearing of the application

 

"for review of (the magistrate's) reviewable finding in regard to the said matter";

 

why the messenger of the court should not be prohibited from executing the said writ; and why- the company should not pay the costs of the application. The first two phrases operate as an interim interdict according to this order;

 

(b)       The company opposed the rule nisi and also anticipated the return date to 16^th June.

 

(c)        The rule nisi was not confirmed in its original form. The order made on 29^th June in consequence of the proceedings of 16^th June, reads as follows:

 

"(a) that the execution of the writ authorised by (the magistrate) in the case of Kuruman Cape Blue Asbestos (Pty.) against applicant ... is suspended until the date of judgment by this Division of the Supreme Court in the appeal against the magistrate's judgment on the question of summary judgment and on the review of the proceedings before the magistrate;

 

(b)       that the (messenger of the court at Kuruman) is prohibited from executing the said writ; and

 

(c)        that (the company) is ordered to pay the costs of this application."

 

6.         Against this order the company appealed.

 

Mr. Zietsman, for the company, submitted that Boshoff did not prove any of the requirements for an interdict neither a clear or prima facie right, nor that he would suffer irreparable loss, nor ·that he had no other remedy available. He, therefore, submits that Boshoff was not entitled to the rule nisi in its original form and still less to an order in the form in which it was granted on 29^th June, i.e. an interdict pending both review of the sec; 78 application and appeal against the summary judgment.

 

Mr. Zietsman submits that the order obtained by the company in terms of sec. 78 of Act No. 32 of 1944 is not subject to appeal and refers to Van Leggelo v. Transvaal Cellocrete (Pty.) Ltd. and Another, 1953 (2) SA. 287 (T). Mr. de Flamingh, for Boshoff, says that it is. It is in my opinion unnecessary to decide whether there are reasons to differ from the Van Leggelo case, supra, because no appeal was in fact noted against the magistrate's order in terms of sec. 78, and the interdict was applied for, pending review thereof.

 

In his application for· the said interdict Boshoff avers (a) that the magistrate's refusal to hear oral evidence in the application for summary judgment, was an irregularity; (b) that the fact that Boshoff furnished security in terms of Rule 51 (4) of the magistrates' courts debarred the company from obtaining execution in terms of sec. 78; and that the magistrate misinformed himself by finding the contrary; and (c) that the magistrate also erred in dismissing the application to strike out, referred to in para. 4 (c) of the summary of facts above.

 

Averment (a) is prima facie not relevant in regard to the review of the subsequent separate sec. 78 proceedings. The merits of the summary judgment would only perhaps be relevant on review of a magistrate's subsequent exercise of a discretion in terms of sec. 78 if it could be alleged that the summary judgment was so clearly erroneously granted, that an order authorising execution on that judgment would be a strong indication that the magistrate had acted mala fides in the subsequent proceedings or that in fact he had exercised no discretion.

 

Boshoff does riot aver in the papers on which he obtained the rule nisi that the magistrate had erred in regard to his consideration of the facts averred in both sets of affidavits when granting the order in terms of sec. 78-this was, however, correct, for that would be a ground of appeal should the order be appealable, but not a ground for review. Accepting that an interdict was the correct procedure where a suspension of the writ authorised by the magistrate was actually applied for (cf. Jasat v. Moosa, 1949 (1) S.A. 883 (N) at p. 884) it is, in considering whether he has shown a prima facie right for obtaining an ex parte rule nisi, clear that Boshoff could only rely on the two alleged misdirections by the magistrate in regard to the furnishing of security and striking out.

 

To deal with the latter of the two first: I repeat Lourens's affidavit in toto:

 

"1.       I am in the employ of applicant in this application as relieving mine manager and am duly authorised to make this affidavit in terms of a resolution by the board of the applicant, passed at Johannesburg on Friday, 2^nd June, 1972.

 

2.         Applicant is a company mining asbestos on the farm Witbank and other farms in the immediate vicinity of Kuruman.

 

3.         White miners from an indispensable part of applicant's labour force for the proper maintenance of production for mining, milling ·and mixing of asbestos.

 

4.         There is a shortage of housing in Kuruman and in Vliew of this shortage and production requirements, the applicant erected a number of dwellings on mining property at different mines on the said farms and also built flats in Kuruman and hired properties for allocation to its white miners. Applicant employed respondent in terms of a written contract of service which already forms part of the court's record in the above-mentioned case, in terms of which contract of service, dwelling 3, Kuruman East Mine, Kuruman was made available to respondent.

 

5.         Applicant terminated respondent's said contract of service in terms of para. 2 (a) thereof by summarily dismissing the respondent in the following circumstances:

 

(a)       On instructions of the applicant I circulated on 25^th April, 1972, a written notice among all employees of applicant, including the respondent ... (in which) all employees of the applicant were warned that should any employee of the applicant strike, he would commit a breach of his contract of service and would render himself liable to termination of his services with loss of all benefits including housing.

 

(b)       Respondent together with other white miners refused to report for duty on 16^th May, 1972, and were thereupon summarily dismissed as aforesaid on 16^th May, 1972.

 

(c)        Thereafter on 16^th May, 1972, on instructions of the applicant I prepared and signed a further notice which was delivered to all employees of the applicant, including the respondent, who had refused to report for duty on 16^th May, 1972.

 

6.         Respondent by his refusal to report for duty and to work, made the relationship of employer and employee impossible and he was summarily dismissed and no longer works for the applicant, but still occupies the said dwelling and thereby renders it impossible for the applicant to employ an employee who is available, because applicant has no accommodation to offer to the substituting employee and thereby applicant's production is endangered.

 

7.         Respondent was not discharged on account of alleged trade union activities. At least nine members of the trade union did not take part in the strike and still work for the applicant. One has resigned from the union since then and one, after initially taking part in the strike, again entered the service of applicant.

 

8.         As a result of the termination of respondent's contract of service and his refusal to vacate the dwelling applicant issued summons against respondent for ejectment and summary judgment was granted by the above­mentioned court on 1^st June, 1972, against which judgment respondent noted an appeal on 2^nd June, 1972.

 

9.         In  view of the aforesaid facts it is clear that respondent has no reasonable prospect of success on appeal.

 

10.       It is essential for applicant to appoint another employee in the respondent's place, because the applicant may otherwise suffer irreparable loss. The mining activities are presently proceeding, but very soon, on account of the reduction of staff, it will be necessary for applicant to stop production in order to undertake the necessary maintenance of the production machinery which is prescribed in the safety regulations for the mining industry. If respondent remains in occupation until the judgment of the Court of Appeal is made known, applicant will suffer irreparable loss and estimate the damage at approximately R100 000 per month should the respondent and other employees who are similarly in unlawful occupation remain in such occupation.

 

11.       On the contrary respondent will not suffer irreparable loss if the court at this stage orders execution of the summary judgment for ejectment, because even if 'he summary judgment ... should be set aside, the respondent may in any event be given 24 hours' notice of termination in terms of para. 2 (b) of his contract of service, in which case he must also vacate the dwelling in terms of clause 1 (i) and secondly the respondent may then in any case recover from the applicant any damages which he might have suffered. On the other hand should the finding of the court be confirmed on appeal there is, for obvious reasons, no prejudice to the respondent.

 

12.       t wish to stress that applicant's loss, should respondent remain in occupation pending the decision of the Court of Appeal, will not be limited to the mere rental for the said dwelling, but it will have the effect that applicant will suffer irreparable losses in production. In view of the above, I respectfully request, on behalf of the applicant, that it may please this Honourable Court to make an order in terms of sec. 78 of Act 32 of 1944 that the summary judgment which was granted by the above-mentioned court on 1^st June, 1972 against the respondent in the aforesaid case and against· which judgment, appeal was noted on 2^nd June, 1972, be executed."

 

Boshoff replied to all these averments; and from the said reply it appears that many of Lourens's allegations are common cause; that there is a shortage of housing in Kuruman and that the mine consequently makes accommodation available to employees; that Boshoff was discharged after receipt of a written notice of warning, etc. In this reply he, however, goes considerably further than merely replying to Lourens's allegations; and in his denial that his discharge is valid, it appears that the gravamen of the issue between the parties is probably not whether Boshoff is entitled to continue staying in the mine house, notwithstanding his discharge; but whether miners are possibly exploited by the company and whether the company may in one way or the other be compelled or persuaded to accept a closed shop agreement. These are, however, not the grounds on which an .interdict is prayed for in this Court or on which it could have been prayed for in this case and it is also not an -issue which can be decided on these papers.

 

The application to strike out avers that "paras. 4, 5 head (b), 6, 7, 8, 9, 10, 11 and 12" of Lourens's affidavit

 

"do not comply with the Rules of this Honourable Court because they amount to hearsay evidence or are otherwise inadmissible".

 

Mr. de Flamingh could or would not advance any other grounds than the alleged hearsay quality thereof why the paragraphs would be inadmissible; and he submitted that they must be ruled to be hearsay be­ cause Lourens describes himself as a relieving mine manager only, and he does not aver expressly that he has personal knowledge of the facts contained in his declaration. He could not refer us to any authority that such an inference should be drawn in the said circumstances. The question is indeed factual. There may be circumstances where notwithstanding the allegation that a deponent bas personal knowledge of the facts deposed to, such facts appear prima facie to be based on hearsay and.his allegation consequently be dismissed. Cf. Raphael & Co. v. Standard Produce Co. (Pty.) Ltd., 1965 1 (4) S.A. 244 (C). Where Lourens prima facie speaks from own knowledge it would be completely artificial to require, as a prerequisite for admissibility, that in addition he must expressly aver that that is the case. And where most of the factual allegations are in any event admitted, but in reply thereto further averments are made or a different interpretation is given to occurrences than that given by Lourens, the application to strike out is rather of a technical than of a material nature. Cf. Anderson and Another v. Port Elizabeth Municipality, 1954 (2) S.A. 299 (E) at p. 309.

 

The second ground on which Boshoff avers that his review of the order in terms of sec. 78 has a reasonable prospect of success is based on Glenlily Fairfield & Parow V.M.B. v. Van Reenen, 1936 C.P.D. 162. Mr. de Flamingh avers .that the magistrate's order is open to attack because he ignored the necessity of furnishing security. Consequently, if Boshoff should succeed in his appeal against the summary judgment he could not be placed in the status quo ante, i.e. in the house. Sec. 78 reads as follows :

 

"Where an appeal has been noted or an application to rescind, correct or vary a judgment has been made, the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application. The direction shall be made upon such terms, if any, as the court may determine as to security for the due performance of any judgment which may be given upon the appeal or application."

 

The English text refers to

 

"such terms, if any, as the court may determine as to security for the due performance of any judgment which· may be given upon the appeal or application".

 

It is clear that the security which Boshoff furnished when noting the appeal against the summary judgment was part of his act of noting appeal and had nothing. to do with·the security in terms of ,sec. 78. Cf. Pilane v. Northern Cape Tractors (Pty.) Ltd., 1971 (3) S.A. 619 (N.C.). See also Herbstein & Van Winsen, 2^nd ed., p. 640.

 

Thereafter the company made application in terms of sec. 78.for execution, not for

 

"security for the capital amount of the judgment appealed against and costs in the court below",

 

and in terms of the wording of the said section the magistrate had to exercise a multifold discretion in the first place to decide whether he was going to grant the order for execution applied for, in all the circumstances, including the fact that it is an order ad factum praestandum in respect of which the execution is applied for (in which case the main consideration is

 

"where does the equity of the case lie as between the two parties",

 

African Congregational Church Co. Ltd. and Another v Dube, 1944 W.L.D. 204. See also Leask v. French and Others, 1949 (4) S.A. 887 (C)); and thereafter, if so, whether he should determine conditions in regard to security for the proper satisfaction of a judgment if the appeal is successful; and, if applicable, the contents of those conditions.

 

In must again be stressed that Mr. de Flamingh's submission is also here not that the magistrate exercised his discretion on an erroneous consideration of the allegations contained in the affidavits on both sides, which would have been a ground of appeal and not a ground for review. He also did not submit that the exercise of the discretion had been so unreasonable in the circumstances that it was an indication of mala . fides or an absence of actual consideration of the facts. He submits that an irregularity was committed because the magistrate omitted to add a condition which in law he was compelled to do.

 

Sec. 78 does not impose such a duty on the magistrate, not even in regard to execution of an order ad factum praestandum.

 

It appears, therefore, that there is no reasonable prospect of success. for a review of the magistrate's order in terms of s.ec. 78 founded on these two grounds.

 

Mr. de Flamingh correctly did not submit that the magistrate's summary judgment was so clearly wrong that an inference may perhaps. be drawn that he was mala fide or that he did not actually exercise a discretion in regard to the sec. 78 application. Even if it is accepted that Rooiberg Minerals· Development Co.·Ltd. v. Du.Toit, 1953 (2) S.A. 505 (T) was correctly decided, notwithstanding the fact that the Industrial Conciliation Act does not provide that a discharge contrary to sec. 66 is invalid and notwithstanding the presumption applicable to the interpretation of statutes that the Legislator does not intend to amend existing law unnecessarily, the submission on behalf of the company is not without merit, viz. that Boshoff in the summary judgment proceedings averred nothing in his affidavit which would bring his case within the ambit of sec. 66 of Act 28 of 1956 and that he would not rectify the defects by what he is offering by means of oral evidence. It is unnecessary, in fact undesirable, to consider the merits of the proposed appeal any further now.

 

Where there is no prospect of success for a review of the magistrate's order in terms of sec. 78 on the only grounds and possible grounds revealed by the papers on which Boshoff relied, in his application for an interdict, it follows that he did not show any prima facie right which justifies protection by an interdict. It is, therefore, unnecessary to consider whether he proved the other requirements for an interdict.

 

For the above reasons the company's appeal succeeds with costs; and the order of the court a quo dated 29^th June is set aside and substituted by an order that the rule nisi of 14^th June be discharged with costs.

 

In regard to the proceedings of 14^th June counsel are agreed that there are no reasons why the ordinary rules should not be decisive. Consequently it is ordered that Boshoff pay the costs of the provisional objection against the company's application for leave to appeal; as well as the costs occasioned by his opposition of the application itself.

 

After orders granted on 8^th September, as set out above, Mr. de Flamingh made application for leave to appeal. He added nothing to his argument, and the Court agreed that. there was no prospect of success on appeal and his application was accordingly dismissed, but an order was made by consent and ad misericordiam that the magistrate's order of ejectment against Boshoff was not to be executed before 5 p.m. on Friday, 15^th September, 1972.

 

VAN RHYN, AJ.P., and BRINK, A.J., concurred.

 

Appellant's Attorneys: Duncan & Rothman. Respondent's Attorneys: Roux, Welgemoed & Kock.

---