Ndabeni and Others v Leeming and Others (Reasons) (6008/2024) [2024] ZANWHC 293 (2 December 2024)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: 6008/2024

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

VUYISILE

CHARLES NDABENI

1st

APPLICANT

GLOBAL TOURISM LEGACY NETWORKS (PTY) LTD 2nd

APPLICANT

MOTSWANA

RE NA LE RONA NPC

3rd

APPLICANT

And

ANTHONY

LEEMING

1st

RESPONDENT

SUN INTERNATIONAL OF SOUTH AFRICA (PTY) LTD 2nd

RESPONDENT

BAKGATLA

BA KGAFELA TRADITIONAL AUTHORITY 3rd

RESPONDENT

BAKUBUNG

TRADITIONAL AUTHORITY

4th

RESPONDENT

LEREKO INVESTMENT (PTY) LTD

5th

RESPONDENT

NORTH

WEST GAMBLING BOARD

6th

RESPONDENT

NORTH

WEST DEVELOPMENT CORPORATION

7th

RESPONDENT

ORTH

WEST PROVINCIAL GOVERNMENT

8th

RESPONDENT

NATIONAL

DEPARTMENT OF PUBLIC WORKS

9th

RESPONDENT

MOSES

KOTANE LOCAL MUNICIPALITY

10th

RESPONDENT

ORDER

INTRODUCTION:

[1] The applicants in this matter Vuyisile Charles Ndabeni (the first applicant), Global Tourism Legacy (the second applicant) and Motswana Re Na Le Rona NPC (the third applicant) launched an urgent application which was heard on 22 November 2024.

[2] At the hearing of the matter, the first applicant, Mr. Vuyisile Charles Ndabeni (Mr. Ndabeni) appeared in person. Mr. Ndabeni informed the Court that he was appearing on behalf of the second and third applicant. Mr. Graves SC appeared for the first and second respondent.

[3] After hearing argument from both Mr. Ndabeni and Mr. Graves SC, the Court reserved judgment and on 28 November 2024 handed down an order in the following terms:

(i) The application is dismissed;

(ii) The first applicant is ordered to pay the costs of the application on an attorney client scale, including the costs of Senior Counsel

[4] What follows hereinunder are the reasons for the court order dated 28 November 2024.

THE LAW

[5] Every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief. (See: Rule 6(1) of the Uniform Rules of the Court).

[6] An affidavit is a statement in writing sworn to before someone who has authority to administer an oath. It is a solemn assurance of fact known to the person who states it, and sworn to as his statement before some person in authority such as a commissioner of oaths.

[7] Regulation 4(1) of the Regulations Governing the Administration of an Oath or Affirmation reads as follows: “Below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration.”

[8] Regulation 4(2) of the Regulations Governing the Administration of an Oath or Affirmation reads as follows: “The commissioner of oaths shall – (a) sign the declaration and print his full name and business address below his signature; and (b) state his designation and the area for which he holds his appointment or office held by him if he holds his appointment ex officio.”

[9] In affidavits filed which are filed in support of the notice of motion. It is well established that the applicant should make out his or her case in the founding affidavit and certainly not belatedly in argument. (See: My Vote Counts NPC v Speaker of the National Assembly 2016 (1) SA 132 (CC) at paragraph 177).

[10] The founding affidavit must at the least contain the following;

(a) applicant’s right to apply, that is the applicant’s locus standi. Appropriate allegations to establish the locus standi of an applicant should be made in the founding affidavit. The applicant must satisfy the court that he or she has a direct interest in the relief sought, the interest must not be too remote, the interest must be actual, not abstract or academic and it must be current interest and not a hypothetical one. The duty to allege and prove locus standi rests on the party instituting the proceedings. (See: Four Wheel Drive CC v Leshni Rattan NO (1048/17) [2018ZASCA 124 (26 September 2018) at paragraph 7).

(b) In addition, the founding affidavit should contain facts indicating that the court has jurisdiction.

(c) The cause of action on which the applicant relies. (See: National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at 349A – B)

(d) The evidence in support of the application. In application proceedings, the affidavits take the place of not only the pleadings in an action, but also the essential evidence which is to be led at a trial. (See: National Credit Regulator v Lewis Stores (Pty) Ltd 2020 (2) SA 390 (SCA) at paragraph 29).

[11] A company cannot conduct a case in court except by the appearance of counsel acting on its behalf (See: Manong v Minister of Public Works (518/2008) [2009] ZASCA 110 (23 September 2009) at paragraph 4).

[12] In Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624G – H, the court held that a deponent to an affidavit need not be authorized to depose to the affidavit in support of the application. It is the institution of the proceedings and prosecution thereof that must be authorized.

[13] In proceedings, where the applicant is an artificial person, evidence is required that the applicant has duly resolved to institute the proceedings and the proceedings are instituted at its instance. (See: Tattersall and Another v Nedcor Bank Ltd. (340/93) [1995] ZASCA 30; 1995 (3) SA 222 (AD); [1995] 2 All SA 365 (A) (28 March 1995) at paragraph 10)

THE HEARING OF THE

MATTER

[14] When this matter was heard, the Court indicated to Mr. Ndabeni that there wasn’t a resolution before the Court from the second applicant and the third applicant authorizing the bringing of the application. Mr. Ndabeni insisted that he had filed the resolution with the registrar of the court.

[15] The Court then asked Mr. Ndabeni if he was an attorney or an advocate. Mr. Ndabeni informed the Court that he was neither an attorney or an advocate. Mr. Ndabeni was then referred to the document written “FOUNDING AFFIDAVIT”. The Court referred Mr. Ndabeni to the second and third pages of the document. The Court pointed out to Mr. Ndabeni that although Sergeant Lesego Segwe who is identified as a commissioner of oaths singed the document under the signature of Mr. Ndabeni. Sergent Segwe failed to attach a certificate below Mr. Ndabeni’s signature certifying that Mr. Ndabeni has acknowledged that he knows and understands the contents of the declaration and he further failed to state the manner, place and date of taking the declaration. Mr. Ndabeni informed the Court that he did not know that was a requirement.

[16] Mr. Ndabeni was informed by the Court that the Court had read the document marked “FOUNDING AFFIDAVIT” and Mr. Ndabeni was asked if he wished to make any further submissions or if he stood by what is contained in the document marked “FOUNDING AFFIDAVIT”. Mr. Ndabeni indicated he stood by what is contained in the document marked “FOUNDING AFFIDAVIT”.

[17] The Court considered the contents of the document marked “FOUNDING AFFIDAVIT”. The Court noted that Mr. Ndabeni made an allegation that he was duly authorized to bring the application on behalf of the second and third applicant.

[18] Mr. Ndabeni averred that on 13 October 2024, he had sent a letter of demand on behalf of the second and third applicant to the first respondent. The letter requested specific information to confirm the lawful ownership of Sun City by the second respondent.

[19] The Court noted that Mr. Ndabeni averred that the response of the first respondent was dismissive and disrespectful, demonstrating a contemptuous attitude.

[20] The Court noted from the reading of the document marked “FOUNDING AFFIDAVIT” that the first, second and third applicant sought the requested information to ascertain the legal status of Sun City. The Court noted in conclusion, the applicants sought the Court to compel the respondents to provide the requested documents by the close of business on 21 November 2024.

[21] The Court when examining the notice of motion noted the notice of motion sought relief in the following terms, “AN INTERDICT

RESTRAINING THE FIRST RESPONDENT AND THE SECOND RESPONDENT FROM

HOSTING THE NEDBANK CHALLENGE ON THE 5TH TO 8TH OF DECEMBER 2024”.

[22] The first and second respondent have filed their answering affidavit to the document marked “FOUNDING AFFIDAVIT” of the first, second and third applicant. Mr. Graves SC for the first and second Respondent submitted to the Court that there is no legal connection between the claim for the requested documentation and the prayers to interdict the Nedbank Golf Challenge.

[23] Mr. Graves SC submitted to the Court that due to the noncompliance with Regulation 4(1) of the Regulations Governing the Administration of an Oath or Affirmation, the application of the first, second and third applicant is not accompanied by an affidavit.

[24] Mr. Graves SC further referred the Court to the letter dated 13 October 2024 from the first applicant, Mr. Ndabeni. A copy of the letter is attached to the answering affidavit of the first and second respondent and marked “AL1”.

[25] Mr. Graves referred the Court to a WhatsApp communication from the first applicant, Mr. Ndabeni to the first respondent attached to the answering affidavit of the first and second respondent marked “AL2”. The WhatsApp message titled DRAFT SETTLEMENT AGREEMENT ON SUN CITY / SISA PTY LTD referred to (1) payment of claims loss of income and reputation damage R54b; (2) procurement of executive vehicles for the Motswana re Na Le Rona NPC R10m; (3) Donation of R 10m to Kgosi Manyane Mangope Foundation; (4) Investment of R500m in the Plilanesberg Game Reserve Infrastructure Fund; (5) Strategic Marketing and Business Development Partnership Agreement for 10 years in the Activation of the Nedbank Golf Challenge between SISA and Motswana Re Na Le Rona NPC; (6) Shareholders Agreement with Bakgatla Ba Kgafela and Ledig Business Forum 60% (Bakgatla/Ledig Consrortium/ 40% (SISA). This should provide Rights for appointment of Directors and Executive Management; (7) The Sun City/Pilanesberg Gane Reserve Traversing Route Exclusive Rights to PGR,PIS and Lengau Africa Investment Pty Ltd for 20 years; (8) Outsourcing of the Staff Canteen Restaurants to Bakgatla Ba Kgafela and Ledig Business Forum Business; (9) Corporate Social Investment Project, Pilanesberg Wildlife College R20m; (10) Capital Funding of R250m for recapitalization. Commercializing and Rebranding of Pilanesberg International Airport.

[26] Mr. Graves SC submitted to the Court that this “DRAFT SETTLEMENT AGREEMENT ON SUNCITY / SISA PTY LTD” is nothing more than extortion of the first respondent and the second respondent by Mr. Ndabeni. Mr. Graves SC moved for the application to be dismissed with a punitive cost order on a attorney and client scale, including the costs of senior counsel.

[27] Mr. Ndabeni in reply submitted that the “DRAFT SETTLEMENT AGREEMENT ON SUNCITY / SISA PTY LTD” is not extortion. Mr. Ndabeni informed the Court that the first respondent contacted him and asked him how the matter could be resolved and this was his proposal.

ANYLYSIS

[28] Although Mr. Ndabeni informed the Court that he is representing the second and third applicants and, in the document, marked “FOUNDING AFFIDAVIT” at paragraph 1, an averment is made that Mr. Ndabeni is duly authorized to bring the application on behalf of the second and third applicants. The first and second respondent have in their answering affidavit challenged this averment by stating there is no lawful resolution authorizing the first applicant to launch this application for and on behalf of the second and third applicants. There also are no confirmatory affidavits deposed to by the representatives of the second and third applicants.

[29] Mr. Ndabeni had further indicated to the Court that he is not an attorney or an advocate. The authorities are clear on this issue, an artificial person cannot be represented in court proceedings by a person who is not an attorney or an advocate. I am accordingly not satisfied that the second and the third applicant were before the court on 22 November 2024 when this matter was heard.

[30] The document marked “FOUNDING AFFIDAVIT” was not properly commissioned. This is also an issue that was taken by the first and second respondent. Mr. Ndabeni did not move an application for condonation of the noncompliance with Regulation 4(1) of the regulations governing the administration of an oath or affirmation. Accordingly, the application of the first applicant was not accompanied by an affidavit.

[31] When the matter was heard, the Court viewed the papers of Mr. Ndabeni benevolently because Mr. Ndabeni is not a legal practitioner. There is however a limit within which the Court could look benevolently on the papers. The document marked “FOUNDING AFFIDAVIT” in addition to not being an affidavit, does not speak to the relief that is sought in the notice of motion. Mr. Ndabeni failed to make out a cause of action for the relief that the first, second and third applicants seek. There is no legal connection between the documents sought by the first, second and third applicant and interdicting the Nedbank Golf Challenge.

[32] Mr. Ndabeni failed to make appropriate allegations to establish the locus standi of the first, second and third applicants. The applicant must satisfy the court that he or she has a direct interest in the relief sought, the interest must not be too remote, the interest must be actual, not abstract or academic and it must be current interest and not a hypothetical one. Mr. Ndabeni in his documents marked “FOUNDING AFFIDAVIT” does not deal with these aspects.

[33] Mr. Ndabeni failed to adduce evidence in support of the application and the relief that the first, second and third applicants seek. No evidence has been adduced at all in support of the relief sought for interdicting the Nedbank Golf Challenge.

COSTS

[34] Mr. Graves SC submitted because of the conduct of Mr. Ndabeni, an appropriate costs order would be a punitive costs order on attorney and client scale including the costs of senior counsel.

[35] The general rule is costs follow the cause, and I found no reason to depart from the rule. In considering an appropriate costs order, the Court considered the conduct of the applicants. The first, second and third applicant on 31 October 2024, launched an application in which they sought an order interdicting the first and second respondent from holding the Nedbank Golf Challenge on 5th to 8th December 2024. That application was brought under case number 5664/24, the matter was to be heard on 12 November 2024.

[36] Mr. Ndabeni in reply, submitted to the Court that indeed that application sat before Djaje DJP on 15 November 2024, and it was removed from the roll. The first, second and third applicant did not withdraw the application under case number 5664/24, nor was the matter under case number 5664/24 placed on the roll for 22 November 2024. The first, second and third applicants simply brought the application under a new case number, 6008/24. The conduct of the first, second and third applicant amounts to abuse of court processes.

[37] There was no urgency in the matter and there was no reason advanced as to why the matter under case number 5664/24 was not placed on the opposed motion court roll in terms of the practice directives of the court instead of bringing a new application under case number 6008/24. Mr. Ndabeni should have taken the Court into his confidence and disclosed from the outset that the matter under 5664/24 had sat before Djaje DJP on 15 November 2024 and that the relief sought therein is the same relief sought in the matter under case number 6008/24. The fact that this was raised by the first and the second respondent in their answering affidavit, left the Court with the inference that the first, second and third applicants sought to mislead the Court.

[38] The Court has already found that the second and the third applicant are not before the court. It is only the first applicant who is before the court and any cost order made would have to be against the first applicant.

ORDER:

[39] Resultantly, the following order was made: -

(ii) The first applicant is ordered to pay the costs of the application on an attorney and client scale, including the costs of senior counsel

T MASIKE

ACTING JUDGE OF THE

HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE FOR

HEARING

: 22 NOVEMBER 2024,

DATE OF

JUDGMENT

: 28 NOVEMBER 2024

DATE OF

REASONS

: 2 DECEMBER 2024

FOR 1st

APPLICANT

: IN

PERSON

INSTRUCTED BY

: IN

PERSON

Email Address

: ndabenic@gmail.com

FOR 1ST AND 2ND RESPONDENTS :

ADVOCATE NOEL

GRAVES SC

INSTRUCTED BY

: KNOWLES

HUSAIN LINDSAY INC

C/O MAPONYA

INCORPORATED

1st FLOOR, OFFICE 29CB

MMABATHO

Email Address

: lettah@maponya.co.za

Or

: grs@khl.co.za/nb@khl.co.za

: noelgraves@counsel.co.za