Middleton Traders CC v Middleton (1131/03) [2003] ZANCHC 51 (12 December 2003)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN THE HIGH

COURT OF SOUTH AFRICA

(Northern Cape Division)

Case no: 1131/03

Date heard: 2003-12-09

Date delivered: 2003-12-12

In the matter of:

MIDDLETON

TRADERS CC APPLICANT

versus

BRUCE

CLAUDE MIDDLETON RESPONDENT

Coram:

MAJIEDT

J

JUDGEMENT

MAJIEDT J:

In this application, which was initially brought on an urgent basis, the Applicant seeks the following final relief:

a) An interdict restraining Respondent from visiting the premises of the Applicant;

b) An interdict restraining the Respondent from having any contact with the office of the Premier of the Northern Cape concerning photocopier contracts;

c) An interdict restraining the Respondent from using the assets of the Applicant;

d) An order directing the Respondent to hand over to the Applicant all those assets which are registered in the name of the Applicant and which are presently being held by the Respondent;

e) An order for costs.

The following facts are common cause on the papers:

a) That the Applicant is a Close Corporation.

b) That the Respondent was employed as a manager of a firm providing services in office automation and stationery.

c) That the Applicant purportedly suspended the Respondent from his duties as manager by a letter dated 10 September 2003 with effect from 11 September 2003.

There are various factual disputes on the papers before me, but the central issue for determination to adjudicate the dispute between the parties is the following: Is the Respondent an employee of the Applicant or is he an employee of a joint venture between the Applicant and another Close Corporation known as Boikemo Technologies CC? This central issue arises because the Respondent’s case is that:

a) The Respondent is employed not by the Applicant but by the aforesaid joint venture;

b) The lease agreement in respect of the premises from which the joint venture operates in Kimberley, has been concluded between the lessor and the joint venture as lessee;

c) The Respondent was suspended by the joint venture and not by the Applicant;

d) That the office of the Premier of the Northern Cape is a client of the joint venture and not of the Applicant insofar as it concerns the photocopier contracts; and

e) That the Respondent is not in possession of any assets of the Applicant.

It is clear on the papers before me that the Applicant’s case is entirely predicated on the premise that the Respondent has at all material times herein been employed by the Applicant as a manager. In fact the Applicant, represented herein by its sole member, Mr. Mankoe, makes that averment in the founding papers. Mr. Mankoe also avers in the founding papers that he is acting on behalf of the Applicant in this matter and not on behalf of the joint venture. The Applicant has purportedly suspended the Respondent on 10 September 2003 per letter, which I have alluded to hereinbefore, for alleged financial irregularities. It is common cause between the parties that, since that date, nothing at all has happened in respect of any disciplinary proceedings which had been foreshadowed by the aforementioned letter of suspension. The Respondent has averred in his opposing papers that he has, since the date of suspension aforementioned, been attending to his duties as manager as before without any objection or prohibition thereto by the Applicant or Mr. Mankoe. This averment has not been disputed on the papers.

In order to succeed in an application for a final interdict, an Applicant must show locus standi and must prove as one of the essential elements of a final interdict that he has a clear right which requires protection. Without considering the other prerequisites for a final interdict, it seems to me that the Applicant fails to clear this very first hurdle, i.e. proving locus standi and a clear right. I say this, because if on the papers the Applicant fails to prove on a preponderance of probabilities that he does have such locus standi and a clear right, it follows that his application must fail. To establish such locus standi and a clear right, given the facts and circumstances of this case and the essential dispute between the parties as set out above, it is incumbent upon the Applicant to prove on a balance of probabilities that the Respondent was indeed employed by it and has indeed been suspended by it.

Given the fact that the Applicant seeks final relief, the rule enunciated in the case of Plascon Evans Paints v Van Riebeeck Paints 1984(3) SA 623 (A) at 634 C – 635 C is applicable in this case. In terms thereof, the Applicant will succeed only if the facts as admitted by the Respondent together with those facts averred by the Applicant which are not in dispute entitles the Applicant to the relief sought. In the present case, in applying the aforementioned rule, it seems to me that the Applicant fails dismally to establish its locus standi and a clear right to a final interdict due to the following genuine, bona fide disputes of fact which have been raised by the Respondent in his opposing papers:

a) That the Respondent is employed by the joint venture and not by the Applicant;

b) That the Respondent was suspended from duty by the joint venture and not by the Applicant;

c) That the office of the Premier of the Northern Cape was a client of the joint venture and not of the Applicant in respect of the photocopier contracts;

d) That the lease agreement relating to the business premises from which the Applicant seeks to bar the Respondent, has been concluded with the landlord by the joint venture as lessee and not by the Applicant.

e) That, other than a vehicle which is registered in the name of the Applicant and which forms part of the Respondent’s fringe benefits qua his employment contract with the joint venture, the Respondent is not in possession of any assets of the Applicant.

I refer to the abovementioned as genuine, bona fide disputes of fact because the Respondent has gone further than mere bare denials in respect of the matters listed above. In this regard he has for example attached to his opposing affidavit the following supporting documents as annexures:

a) In respect of his employment, the Respondent avers that there is no written contract of employment (a fact which seems to be common cause between the parties). He asks this Court to draw the inference that he is employed not by the Applicant but by the joint venture based on a contract of employment of one of the employees in the enterprise annexed to his opposing affidavit, which contract has clearly been concluded between the particular employee and the joint venture (Middleton Traders and Boikemo Technologies).

b) His letter of suspension, attached to the Applicant’s founding affidavit, bears the name of the joint venture on top and not of the Applicant.

c) One of the photocopier contracts with the Premier’s office is attached to the opposing affidavit which clearly shows that the joint venture had contracted with the Premier’s office.

d) A lease agreement is attached to the opposing affidavit in respect of the premises at 99-111 Transvaal Road, Kimberley – that lease agreement has been concluded with the landlord by the joint venture and not by the Applicant.

It is clear therefore in my view that, due to these disputes of fact, the Applicant cannot succeed in his application. The matter goes even further than that because, if this Court had been called upon to assess the probabilities in this matter outside of the scope of the so-called Plascon Evans-rule referred to above, it is abundantly clear in my view that those probabilities would overwhelmingly favour the Respondent’s version, i.e. that he was in fact employed and suspended by the joint venture and not by the Applicant. I come to this conclusion on the basis of the papers attached to the Respondent’s opposing affidavit and to which I have made reference hereinabove.

Consequently the Applicant has failed to make out a case that it does have the necessary locus standi and more importantly has failed to establish on a balance of probabilities that it has a clear right for the final relief which it seeks.

All that remains is the question of costs. It is obvious that costs should follow the result and Mr. Schreuder for the Applicant has not contended otherwise. An urgent application was brought on 21 November 2003, the Respondent having been given less than 24 hours’ notice of that particular urgent application. Before Olivier J the parties had agreed that the application would be postponed to today and arrangements were made for the filing of affidavits and heads of argument. I am of the view that there was absolutely no basis whatsoever for urgency in that particular application, since as I have said, the Respondent had been purportedly suspended from duty already on 10 September 2003. He had continued with his duties, the purported suspension notwithstanding and no objection had been raised against him continuing his duties. It seems that the urgent application was triggered by the fact that Mr. Mankoe, the sole member of the Applicant close corporation, did not have access to a banking account. It is now quite clear that the Applicant had no locus standi to approach the Court and had no clear right which it could protect and, moreover, had no reason to approach this Court as a matter of urgency. The costs of that hearing having been reserved for today, I am of the view that those costs should be incorporated in the costs of this hearing, which of course the Applicant should pay.

The application is dismissed with costs. The Applicant is ordered to pay the Respondent’s costs, including the costs of the hearing of 21 November 2003.

___

SA

MAJIEDT

JUDGE

ADVOCATE FOR THE APPLICANT : JJ SCHREUDER

ADVOCATE FOR THE RESPONDENT : CH BOTHA

ATTORNEY FOR THE APPLICANT : MANKOE INCORPORATED

ATTORNEY FOR THE RESPONDENT : ROBERTSON & DU TOIT

DATE OF HEARING : 2003-12-09

DATE OF JUDGEMENT : 2003-12-12