Hansen NO and Others v Woldegzibhere Trading as Yitbalek Trading Enterprise and Jobela 1000 Tavern and Others (306/2018) [2018] ZAECGHC 76 (28 August 2018)

Hansen NO and Others v Woldegzibhere Trading as Yitbalek Trading Enterprise and Jobela 1000 Tavern and Others (306/2018) [2018] ZAECGHC 76 (28 August 2018)

The court found that the supplementary affidavit and zoning certificate produced by the first respondent were fraudulent and intended to mislead the court. The explanation provided by Mr. Woldegzibhere for his failure to address the zoning issue in the answering affidavit was disingenuous and contradicted by the articulate and legally informed content of his previous affidavit. The respondents' attempt to introduce new evidence regarding the use of the premises as a restaurant was not foreshadowed in their answering affidavits and amounted to a new defence raised at a late stage without adequate explanation. The court held that the introduction of further affidavits would cause undue...

Citation
[2018] ZAECGHC 76
Parties
Applicant: Ivan Hansen N.O.; Applicant: Jennifer Anne Hansen N.O.; Applicant: Peter Mansour Sahd N.O.; Respondent: Yitbalek Yosef Woldegzibhere Trading as Yitbalek Trading Enterprise and Jobela 1000 Tavern; Respondent: Wilfradan Beleggings (Proprietary) Limited; Respondent: Enoch Mgijima Municipality
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 August 2018
Case Number
306/2018
Procedural Posture
Urgent Application / Application for Leave to File Further Affidavits After Replying Affidavit; Interlocutory Application
Outcome
Application for leave to file further affidavits dismissed. Costs awarded against first and second respondents on attorney and client scale.
Judges
J.D. Pickering
Legal Topics
Zoning Scheme Enforcement, Fraudulent Documentation, Interdict, Admission of Further Affidavits, Nuisance
Land and Property Civil Procedure Zoning Scheme Enforcement Fraudulent Documentation Interdict Admission of Further Affidavits Nuisance

Case Brief

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Parties

Ivan Hansen N.O.

Applicant

Jennifer Anne Hansen N.O.

Applicant

Peter Mansour Sahd N.O.

Applicant

Yitbalek Yosef Woldegzibhere Trading as Yitbalek Trading Enterprise and Jobela 1000 Tavern

Respondent

Wilfradan Beleggings (Proprietary) Limited

Respondent

Enoch Mgijima Municipality

Respondent

Procedural Posture

Urgent Application / Application for Leave to File Further Affidavits After Replying Affidavit; Interlocutory Application

Legal Issues

  1. 1 Whether the respondents should be granted leave to file further affidavits after the replying affidavit stage.
  2. 2 Whether the supplementary affidavit and zoning certificate produced by first respondent are fraudulent and inadmissible.
  3. 3 Whether the business operated on the property is a tavern or a restaurant for zoning purposes.

Ratio Decidendi

The court found that the supplementary affidavit and zoning certificate produced by the first respondent were fraudulent and intended to mislead the court. The explanation provided by Mr. Woldegzibhere for his failure to address the zoning issue in the answering affidavit was disingenuous and contradicted by the articulate and legally informed content of his previous affidavit. The respondents' attempt to introduce new evidence regarding the use of the premises as a restaurant was not foreshadowed in their answering affidavits and amounted to a new defence raised at a late stage without adequate explanation. The court held that the introduction of further affidavits would cause undue...

Court Disposition

Application for leave to file further affidavits dismissed. Costs awarded against first and second respondents on attorney and client scale.

Orders

  • The application for leave to file further affidavits is dismissed.
  • First and second respondents are ordered jointly and severally, the one paying the other to be absolved, to pay the costs of the application on the scale as between attorney and client.