Riverside Park Trading 232 (Pty) Ltd and Others v Setshedi and Others (UM32/2017) [2017] ZANWHC 84 (2 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: UM32/2017

In the matter between:

RIVERSIDE PARK TRADING 232 (PTY) LTD 1st Applicant

BONABALE WASTE MANAGEMENT (PTY) LTD 2nd Applicant

ANNETTE LUBBE 3rd Applicant

AND

DEDRIK HASLEY SETSHEDI 1st Respondent

AARON THABO PITSOE 2nd Respondent

ANY INDIVIDUAL WHO ASSOCIATES THEMSELVES

WITH THE FIRST AND SECOND RESPONDENTS 3rd Respondent

SEDIBA SA KWENA (PTY) LTD 4th Respondent

CIVIL MATTER

KGOELE J

DATE OF HEARING: 02 NOVEMBER 2017

DATE OF JUDGMENT: 02 NOVEMBER 2017

DATE REASONS REQUESTED: 03 NOVEMBER 2017

DATE REASONS HANDED: 14 DECEMBER 2017

COUNSEL FOR APPLICANT: Adv. H.J. Scholtz

COUNSEL FOR RESPONDENT : Adv. D. Vetten

REASONS FOR JUDGMENT

[1] The applicant approached this Court on an urgent basis on the 22nd of September 2017 alleging some unlawful behavior or conduct on the part of the first and second respondents and sought an interdict to prevent same. A rule nisi was granted on the same day, the Order of which was couched as follows:-

“1. THAT: The forms and services provided for in the rules of the above Honourable Court be and are hereby dispensed with and that the matter be treated as an urgent application in terms of the provisions of Rule 6(12) of the Uniform Rules of Court.

2. THAT: A Rule Nisi be and is hereby issued calling upon the Respondents to furnish reasons, if any, on the 19th day of OCTOBER 2017 at 10h00 on why the following order should not be made an order of court:

2.1. That the First to Third Respondents be and are hereby interdicted and ordered to refrain from any unlawful interference with the activities of the Applicants in the execution of their contractual duties and obligations in respect of contract number P11059 (being the management of the salvage yard, inclusive of collections and sorting) with Impala Platinum, Rustenburg.

2.2. That the First to Third Respondents be and are hereby interdicted not to intimidate, assault, issue threats of intimidation and/or violence towards the Applicants or act unlawfully in any other fashion regarding the Applicants, its directors, employees or sub-contractors.

2.3. That the First to Third Respondents be and are hereby interdicted not to cause damage to property, vehicles and/or equipment belonging to or in the possession of the Applicants its directors, employees or sub-contractors by burning, destroying or damaging it in any other fashion.

2.4. That the First to Third Respondents be and are hereby interdicted not to interrupt any progress meetings held between the Applicants and other stakeholders regarding the execution of their duties in terms of contract number P11059 with Impala Platinum, or any other meetings held by the Applicants irrespective where and when such meetings are convened, and for whichever purpose.

2.5. That the First to Third Respondents be and are hereby interdicted not to be in a radius of 100 meters from:

2.5.1. The Applicants’ operations at the Impala Platinum Mine, Rustenburg.

2.5.2. 15 Kwikkie Avenue, Cashan, Extension 2, Rustenburg.

2.5.3. Plot 113, Renosterfontein, Kroondaal.

2.5.4. The principle places of business of the First to Third Applicants.

2.5.5. The Fourth Applicant, being Annette Lubbe, in person.

2.5.6. Any other mining sites or premises from which the Applicants conduct business, including but not limited to Anglo American Platinum and Sebanye Platinum Mine, Rustenburg, with the intention to contravene the terms of this order and/or to conduct any acts which are in contravention with the law.

2.6. That the Sheriff of the above Honourable Court, with the assistance of the South African Police if necessary, be authorised to take each and every step necessary to enforce this order where and when necessary.

2.7. That the First to Third Respondents pay the costs of the application on an attorney and client scale, jointly and severally, the one paying the other to be absolved.

3. THAT: Prayers 2.1 – 2.6 be and are hereby of interim force pending the return date.

4. THAT: Service of the application should be effected on the Respondents in the following fashion:

4.1. Service of a copy of the application and interim order, after hours if necessary, upon the First and Second Respondents by the Sheriff.

4.2. By sending a copy of the interim order and application to the First and Second Respondents to their email addresses to wit hasleysetshedi@gmail.com and thabopitsoe97@gmail.com.

4.3. Service upon the Third Respondent by attaching a copy of the application and interim order to a notice board at the Third Applicant’s

principle place of business, to wit 15 KWIKKIE AVENUE, CASHAN, EXTENSION 2, RUSTENBURG.

4.4. Service upon the Fourth Respondents in terms of the Uniform Rules of the above Honourable Court.”

[2] On the 11th of October 2017 a notice of intention to oppose the confirmation of the rule nisi was filed by the first and second respondents only.

[3] On the 2nd of November 2017 I heard arguments for and against the confirmation of the rule nisi and granted the following Order:-

“1. THAT: The issue of authority of the Third Applicant to represent the 2nd Applicant raised by the Respondents be and is hereby upheld.

2. THAT Prayers 2.1,2.2, 2.3 and 2.5 including all its subparagraphs, of their Rule Nisi granted on the 22nd day of SEPTEMBER 2017 be and is hereby confirmed in favour of the 1st and 3rd Applicants.

3. THAT: Prayers 2.4 of the Rule Nisi granted on the 22nd day of SEPTEMBER 2017 is also confirmed but subject to the following:

the last part of this prayer to wit “or any other meetings held by the applicants irrespective where and when such meetings are convened and for whichever purpose” is deleted from this prayer.

4. THAT: The First and Second Respondents to pay the costs on an ordinary scale, jointly and severally, the one paying the other to be absolved.

[4] On the 3rd of November 2017 the first and second respondents applied in terms of Rule 49(1)(c) for the reasons of the above Order, and the reasons thereof follows hereunder.

[5] The first applicant is a company with limited liability incorporated in terms of the Companies Act. The second applicant is also a company with limited liability incorporated in terms of the Companies Act too. The third applicant is a Director in the first applicant. The first applicant trades in waste management and has several contracts with mines in the Rustenburg area to wit Impala Platinum, Anglo American Platinum and Sibanye Platinum Mine.

[6] The third applicant is one and the same Director of the first applicant, but instituted the application and also cited herself in her personal capacity.

[7] The fourth respondent is a company with its sole Director being Mr Otlile Solomon Reuben Tlhapane who also conducts business in the waste management industry. The first applicant and fourth respondents formed a joint venture, being the second applicant (Bonabale Waste Management (Pty Ltd) and applied for contract number P11059 with Impala Platinum Mines this year involving the management of Impala Platinum’s salvage yard, which includes the collections and sorting of waste material. Mr Tlhapane and the third applicant are Directors in this company and the third applicant is also the Chief Financial Officer of the second applicant.

[8] The uncontested factual averments pleaded by the applicants is to the effect that various other individuals and companies also tendered for the same contract with Impala Platinum, but were unsuccessful. The said contract was allocated to the second applicant (which is a joint venture between first applicant and fourth respondent), and a written agreement had been entered into between the second applicant and Impala Platinum on 28 July 2017 as is evident from annexure “AL4” annexed to the papers. The third applicant further alleges that she signed the written agreement on behalf of the second applicant in her capacity as Chief Financial Officer and Director.

[9] The first and second respondents also tendered for the same contract, amongst others, under the name and style of Wethu Umizanzi Trading & Projects (Pty) Ltd and PMR Waste Recycling (Pty) Ltd (being the respective companies of the first and second respondent). These respondents were not successful in their bid, as the contract had been allocated to the second applicant.

[10] The case of the applicants is basically that on or about 18 September 2017, the first and second respondents approached her and made inter alia the following threats:-

10.1 That they will organize a strike in protest against execution of the said contract and disrupt the execution of the contract.

10.2 That they will set alight the vehicles which belong to the first applicant, which will be utilized in the execution of the contract.

[11] The third applicant claims that as a result of the above mentioned conduct she immediately approached her attorney who addressed a letter to the first and second respondents indicating that the applicants take the threats in a very serious light and further that if they do not desist from continuing with the threats and unfounded allegations, they will have no alternative remedy save from applying for urgent relief in a competent Court of law. Copies of the aforesaid letters addressed to the first and second respondents were attached as Annexure “AL6” to the papers. A confirmatory affidavit of the applicants’ attorney, Adriaan Francois Van Wyk, was also attached as annexure “AL7”.

[12] The third applicant further indicated that her attorney did not receive a reply to the aforesaid letters. Nevertheless, they honestly hoped and believed that the above mentioned letters would have persuaded the first and second respondents to refrain from their unlawful behavior, and to accept that the contract had not been allocated to them.

[13] On the 21st September 2017 at approximately 09h00, at the Impala Mine and whilst the third applicant was busy conducting a meeting, the first and second respondents somehow succeeded in passing the security personnel of Impala Platinum and forcefully gained entrance to the meeting. The second respondent forcefully opened the door and the first respondent approached her very aggressively.

[14] When the first respondent was so aggressively approaching the third applicant, he at the same time shouted at her saying that he will ensure that the execution of the contract is stopped. He also bumped against her repeatedly with his stomach and his hand open very closed to her face when he was so shouting. Due to the first respondent’s bumping against her, her version of events continued, she fell against the chairs in the boardroom in an attempt to flee. When she approached the door, she observed that the second respondent had blocked the door in order for her not to be able to exit the boardroom. In confirmation of what transpired she attached a confirmatory affidavit Jacobeth Kgomane as annexure “AL8”.

[15] As a result of the respondents’ intimidation and the anxiety suffered by the third applicant, she thereafter attended to the medi-care emergency unit in Rustenburg where she was treated by Dr Sebata. She alleges that she was very traumatized by the behavior of the respondents.

[16] The first and second respondents deny that they conducted themselves at all in the manner alleged. The second respondent in particular, claims that he did receive the email, but did not respond thereto as he had not conducted himself in the manner set out therein, whereas the first respondent alleges that he did not receive the email at all and had not conducted himself in the manner alleged therein.

[17] In support of their denial of the sequel of events on the 21st September 2017, the first and second respondents set out in detail in their affidavit what occurred on this date. Their version summarized is to the effect that:-

17.1 The first and second respondents were present at the Impala Platinum Mine on the day of this incident. They were there to discuss with the third applicant the amounts outstanding and owed by the first applicant to their business, Wethu Mzanzi Trading and Projects.

17.2 There was nothing illegal about the manner in which the respondents gained entry to the Impala Platinum salvage yard. They patiently waited for the third applicant while she was in her meeting. Despite her knowledge of their presence, she ignored them.

17.3 After a reasonable period of being ignored, the first respondent politely knocked and requested a short word with the third applicant pertaining to the outstanding amounts owed to Wethu Mzanzi Trading and Projects. The third applicant aggressively attempted to evade the request for payment and provoked a level of irritation in the first respondent who “in a raised and irritated voice” demanded when the payment would be made. The third applicant replied that she would go to the office at 3pm and the first respondent assumed that this would be to attend the payment.

17.4 This appeased the first respondent who then left the boardroom and the salvage yard.

[18] Mr Tlhapane, who is the Director of the fourth respondent as well as a Director of the second applicant, deposed to a confirmatory

affidavit to the respondents’ founding affidavit.

[19] The first and second respondents filed together with their answering affidavit a notice in terms of Rule 7(1) of the Uniform Rules of Court (The Rules) disputing the second applicant’s authority to act and seeking appropriate relief as and against the first, second and third

respondents. They contend that the second applicant may no longer act in the matter until such time it had satisfied the Court that it is authorized to do so.

[20] The applicants through their legal Counsel, Adv. Scholtz, submitted that, the respondents filed a notice in terms of Rule 7(1) in a technical attempt to question the authority of the applicants to litigate. The third applicant nevertheless in her capacity as the Chief Executive Officer of the second applicant, being a joint venture between the first applicant and the fourth respondent,

instructed Van Velden and Duffey in writing to represent this company and to act in the urgent application in the North West High Court. This point is according to Adv. Scholtz therefore moot, baseless and without any merit.

[21] Furthermore, Adv Scholtz argued, it is not clear from the notice in terms of Rule 7(1) on which basis the second applicant’s

authority to act is attacked. He submitted that a joint venture is sui generis legal persona and is not a company in the true sense of the word as it is comprised of two companies that form a joint venture for a certain purpose.

[22] In addition to the submissions above, he submitted that in any event the notice in terms of rule 7(1) is fatally defective as the third applicant’s authority is challenged and not the authority of the second applicant’s attorney by way of a power of attorney. Be it as it may, he concluded, a power of attorney by the second applicant had been filed.

[23] In an attempt to expand further in as far as the authority of the third respondent to act on behalf of the second applicant is concerned, he maintained that, it stands uncontested that the third applicant is the Chief Financial Officer of the second applicant, and that the first applicant formed a joint venture with the fourth respondent, being the second applicant, therefore the third and first applicant have a material interest in the second applicant which they need to protect.

[24] It is quite clear that the challenge regarding the authority in respect of the first and the third applicant are concerned is ill conceived. This is so because the third applicant indicated that she is the sole Director of the first applicant. No basis was also laid for this challenge. The same applies to the challenge of authority is respect of the third applicant because the third applicant cited herself in her personal capacity.

[25] In as far as the challenge of authority in respect of the second applicant is concerned, the submission that the third applicant (Annette Lubbe) has no authority to represent the second applicant without a resolution passed by the Board of Directors has merit. It is clear from the papers that the first applicant and the fourth respondent formed a joint venture being the second applicant, “a company”, to apply for the contract P11059 with Impala Platinum Mines. We are told and it is not disputed that Mr Tlhapane is one of the Directors in this company. There is no resolution attached by the second applicant to the effect that both Directors authorized the institution of the applicant and this issue is validity challenged. What makes matters worse for the second applicant is that Mr Tlhapane attested to a confirmatory affidavit on behalf of the first and second respondents, confirming their version of events of the respondents. In the case of Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) at 351 E-G it was said:-

“In such cases some evidence should be placed before the Court to show that the applicant has duly resolved to institute the proceedings and that the proceedings are instituted at its instance”.

[26] The third applicants in casu did not show that the second applicant duly resolved to authorize her (Annette Lubbe) to institute proceedings on its behalf. She only alleges that she has a protectable interest in her replying affidavit. She is therefore expected to show that she has the

necessary locus standi to institute the proceedings on behalf of their company (second applicant) by way of a resolution or some evidence and this are the reasons why the challenge of her authority by the respondents to act on behalf of the second applicant was upheld. There was no Order made in favour of the second applicant simply because the Court accepted the fact that it was not before this Court.

First and Second Respondents’ unlawful behaviour

[27] There is a dispute as far as the alleged conduct of the respondents is concerned on the two dates mentioned above. For this Court to determine whether there is a real and genuine dispute of fact which cannot be resolved on papers, the factual averments of both parties need to be thoroughly analysed. The respondents urge this Court to adopt a robust approach and accept their version as against that of the applicants. Whilst the respondents denied the alleged threats and disruption of the meeting on the dates mentioned above, they however, put a version of their events as follows:- The first and second respondents were present at the Impala Platinum Mine. They were there in order to discuss with the third applicant amounts outstanding by the first applicant to their business, Wethu Mzanzi Trading and Projects.

[28] There was nothing illegal about the manner in which the respondents gained entry to the Impala Platinum salvage yard. They patiently waited for Lubbe (third applicant) while she was in her meeting. Despite her knowledge of their presence, she ignored them.

[29] After a reasonable period of being ignored, the first respondent politely knocked and requested a short word with Lubbe pertaining to the outstanding amounts owed to Wethu Mzanzi Trading and Projects. Lubbe aggressively attempted to evade the request for payment and provoked a level of irritation in the first respondent who “in a raised and irritated voice” demanded when the payment would be made. Lubbe replied that she would go to the office at 3pm and the first respondent assumed that this would be to attend to the payment.

[30] This appeased the first respondent, who then left the boardroom and the salvage yard. Most importantly, these allegations are confirmed by Mr Tlhapane. Mr Tlhapane is a disinterested third party in these proceedings, being a business associate of Lubbe and the director of the fourth respondent as well as a director of the second applicant. The allegations upon which the applicants rely for the conduct interdicts is accordingly not established on the papers and no basis exists for the confirmation of the rule.

[31] A thorough analysis of their version above together with that of the applicants reveals that, it is common cause that the respondents

approached the applicants, in particular the third applicant, whilst at Impala Platinum Mine when she was busy in a meeting. It is also common cause that the applicant was also the one who was chairing the said meeting. The only dispute that is between the versions of the parties relates to the issue of the disruption of the meeting and the alleged conduct or behavior of the respondents.

[32] Applying the Plascon-Evans Rule as far as these two issues are concerned, it is clear that the events as described by the respondents above reveals that the conduct of the respondents, especially the first respondent, was a disruptive one. From his own version, he managed to see everyone in the boardroom upon his arrival. This pre-supposes that he could also see that the third applicant was chairing the meeting. He then called one Botha who came outside and requested him to speak to the third applicant and tell her that he wants to speak to her. Botha said to him that their meeting had not yet finished and further that he should wait for them to finish. It appears from his own version that he did not heed to this request. After a while, when he realized that the third applicant was not coming out, he called Botha again. His reason for calling Botha for the second time is because the third applicant was not coming outside even though she (third applicant) must have known that he (first respondent) was outside. He puts it in brackets in paragraph 28.13 of his answering affidavit that (Botha must have told her).

[33] I may pause here to indicate that the assumption that Botha must have told her is clearly speculative. But above all, it is being disingenuous to the third applicant to expect her to leave chairing the meeting to attend to him (first respondent) not knowing what he was looking for because, he does not in his version tell us that he told Botha what he wanted to talk with the third applicant about.

[34] After calling Botha for the second time and requesting him to tell the third applicant that he just needed some few minutes to talk to her, Botha, who was more considerate and understanding of the prevailing circumstances the applicant was in, of chairing the meeting, refused to go and speak to the third applicant this time around. Instead, he walked away to go and smoke. The first respondent’s disruptive behavior continued because he says that he then knocked and walked into the boardroom. Although he does not say somebody invited him, from what he is not saying one can safely conclude that nobody did that. He then spoke to third applicant whilst she was busy chairing the meeting, and the third applicant told him that she was in the meeting and she could not speak to her. I may pause here to say that this fact which the third applicant told the first respondent at that time, did not require any further verbal confirmation from the mouth of the third applicant because, it was vividly clear that the third applicant could not talk to him whilst she was busy chairing a meeting. In my view, this conduct clearly depicts that the first respondent was utterly disrespectful to the first applicant to say the least. The conduct per se amounts to disruptive behavior on the part of the first respondent.

[35] As if it was not enough, the first respondent in his version continued by saying, he asked the third applicant for the second time to speak to him at the same time telling her the purpose of him coming there, which according to him was that, he wanted to know when the third applicant was going to pay what she owes to him. With due respect to the first respondent, the issue of payment was not a matter of life and death that could have made him not to wait for the third applicant to finish her meeting. But because he did not care about the third applicant, it seems, including the other people who were in the meeting, from his own version, he insisted to talk to the applicant even after she refused to talk to him. This conduct alone depicts that he was determined to do what he came there for irrespective of whether the meeting was on or not.

[36] This is further borne out by the fact that he indicated that he became irritated with the third applicant, raised his voice and asked her when she was going to pay him. This, he mentioned in paragraph 28.18 of his answering affidavit. But in paragraph 28.21 it once more appears therein that he again talked to her in a raised voice. Unfortunately these factual averments corroborate the third applicant’s version that he approached her in an aggressive manner. Shouting at the same time. But a question that comes to mind is that at all the times when this altercation of the third applicant and the first respondent was taking place, does it mean that the other people who were attending the meeting just continued talking about the business of the meeting when there were this raised voices? I am asking this question because the first respondent does not see anything wrong at all with all his behavior above. According to him and his Counsel this amounts to a normal behavior and they want this Court to believe that this conduct did not disrupt the meeting at all. What is even worse is that he was raising this voice for the second time to a woman who was busy chairing the meeting. It cannot escape one’s mind that as a result of the third respondent having stopped concentrating on what was being discussed at the meeting at that time, the other people attending the meeting were also affected by this behavior as well. The proceeding of the meeting was undoubtedly interrupted or disturbed.

[37] Of importance is that both the respondents concede to the fact that they had spoken to Gerald Norval and Gerald Norval also deposed to a confirmatory affidavit in favour of the applicants stating that the first respondent, after the incident, when the two were living the premises, indicated to him that he will see to it as long as he is alive that the contract between the second applicant and Impala Platinum Mine will not be executed. Unfortunately this confirms the threat the third applicant mentioned in as far as the first incident of the 18th is concerned and in particular, indicates that the said threats continued even after the disruption of the meeting on the 21st September 2017.

Participation of the second respondent

[38] In as far as the participation of the second respondent is concerned, it is clear from the papers before Court that:-

· He tendered for the same contract together with the first respondent under the name and style of Wethu Umzanzi Trading and Projects (Pty) Ltd and PMR Waste Recycling (Pty) Ltd being their respective companies and they did not get the contract;

· He was together with the first respondent even during the threats alleged on the 18th September 2017;

· He received a warning letter from the third applicant’s attorney which he did not respond to;

· He nevertheless after the warning accompanied the first respondent to the Impala Mine where the disruption of the meeting occurred on the 21st September 2017;

· He according to the third applicant participated in the disruption as he blocked her way on the door when she attempted to flee from the onslaught that was perpetrated by the first respondent to her.

[39] In my view, he clearly associated himself with the threats and disruption of the meeting. His behavour too must be circumspect.

[40] In my view, the version of the respondents consists of bald or uncreditworthy denials, raised fictitious disputes of facts, is pulpably implausible, unconvincing and far-fetched to such an extent that it can be rejected simply on papers as it does not raise a real, genuine and bona fide dispute of fact.

The Interdict

[41] Coming to the requirements of an interdict, I am of the view that the applicants met the requirements to be satisfied before an interdict can be granted. The first and third applicants have a clear right as, undisputedly so, contract P11059 had been allocated to them. They are therefore entitled to execute their contractual duties and obligations thereof with Impala Platinum Mine in a peaceful and uninterrupted fashion. Accordingly, the applicants have a clear right to comply with the obligations in terms of the agreement, and not to be interrupted by any third party, being for instance the respondents.

[42] The respondents however, on the other hand, a fact which is proven by the objective evidence of NORVAL, now intimidate and make threats towards the applicants, probably due to their resentment as they also tendered for the contract. Their rights have been affected.

[43] I fully agree with the submissions of the applicants’ Counsel that the evidence is overwhelmingly in favour of the applicants that should the rule nisi not be confirmed, the respondents will commit an injury towards the applicants, or at the least, that there is a reasonable apprehension that they will act in an unlawful fashion towards the applicants. There is also accordingly a real risk that the third applicant as a woman will (again) be intimidated or even assaulted.

[44] The respondents, on their own version, conceded to the fact that they approached the third applicant and the first respondent was irritated with the third applicant and raised their voice. Furthermore, the threats Mr Norval heard from the respondents clearly are continuing threats which the respondents displayed after disrupting the meeting.

[45] From the third applicant’s version, the threats which the respondents made on the 18 September 2017 were repeated on the 21 September 2017. This behavior of the respondents demonstrates a continuing behavior which was not stopped by the warning in the letter that the third applicant’s attorney has written. His behavior of firstly, ignoring Botha when he advised him to wait for the meeting to finish, and secondly, of not listening to the third applicant when she said she was busy with the meeting on the 21st further demonstrates that he is a person that does not listen to advices. The dates 18th and 21st are so close to each other and I am of the view that the third applicant was right to approach this Court to interdict this unbecoming and threatening behavior of the respondents and did not have any other alternative remedy but to come to this Court.

[46] Regarding the argument that was raised by the respondents concerning the alleged waiver of certain prayers, I am of the view that there is nothing to consider as far as this issue is concerned because the letter from the applicants’ attorney dated 17th October 2017 is clear to the effect that the undertakings were not accepted and that the matter has become opposed, and further that they are withdrawn.

[47] The above sums up the reason why the Order on the 2nd of November 2017 was granted.

A M KGOELE

JUDGE OF THE HIGH COURT.

ATTORNEYS

FOR THE APPLICANT : Van Velden-Duffey

C/O Van Rooyen Tlhapi Wessels Inc

9 Proctor Avenue Mahikeng

2745

FOR THE RESPONDENTS: Smit Stanton Incorporated

29 Warren Street

MAHIKENG