Terblanche and Another v Oosthuizen (3670/2022) [2023] ZAFSHC 266 (4 July 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 3670/2022

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

CIRCULATE TO MAGISTRATES: YES/NO

In the matter between:

ELIZABETH SOPHIA TERBLANCHE 1st Applicant THE TRUSTEES FOR THE TIME BEING OF THE BLOOMPLAATS TRUST, IT2[…] 2nd Applicant And JACOBUS DU PLESSIS OOSTHUIZEN Respondent

HEARD ON: 24 MARCH 2023

HEADS OF ARGUMENT DELIVERED ON 31 MARCH 2023

JUDGMENT BY:

DANISO, J

DELIVERED ON: This judgment was handed down electronically by circulation to the parties' representatives by email and by release to SAFLII. The date and time for hand-down is deemed to be 16h30 on 4 July 2023.

[1] The first applicant and the respondent are siblings who have been embroiled in a long and acrimonious litigation. The first applicant is the trustee of the second applicant (The Trust) which owns various farms including farm Boomplaats, Wahla, Templemore and Uitgunst while the respondent owns farm Gedagtenis and the remainder of Tempelmore.

[2] On 18 August 2022, the respondent as first applicant launched an urgent application against the applicant and second applicant as first respondent and the Trust respectively in order to enforce his right of way over the Boomplaats route which both parties use to gain access to the main road (S74 road) leading to the neighbouring towns Ritz, Warden and Harrismith.

[3] The application served before Molitsoane J. The parties subsequently took the following order by agreement:

“1. The application is enrolled as a semi-urgent application in terms of Uniform Rule 6(12) and the Applicants’ non-compliance with the Uniform Rules of Court in relation to form and service is condoned and/or dispensed with;

2. The First and Second Respondents and/or their agent(s) shall permit the Second Applicant to utilise the road between the farm Gedagtenis, district Reitz and the S74 road as marked on Annexure “FA1” to the Applicants’ founding affidavit between point “A” and point “B” (“the Boomplaats route”) for the purpose of removing his existing crops which are in the process of being harvested from the farm Gedagtenis;

3. In order to give effect to the order contained in paragraph 2 above, the First and Second Respondents and/or their agent(s) shall within twenty-four (24) hours, by mutual arrangement with the Second Applicant, provide to the Second Applicant duplicate key(s) in respect of any locks which are affixed to the gate(s) on the Boomplaats route between the farm Gedagtenis and the S74 road;

4. The Second Applicant shall return the duplicate key(s) in respect of any locks which are affixed to the gate(s) on the Boomplaats route between the farm Gedagtenis and the S74 road to the First and Second Respondent within three (3) days after the Applicants have given effect to the obligations imposed on the Applicants in terms of paragraph 5 infra;

5. The First and/or Second Applicants shall be jointly and severally liable to effect reasonable repairs to the road surface of the Boomplaats route in the event that damage is caused to such road surface during the course of the removal of existing crops which are in the process of being harvested from the farm Gedagtens by the Second Applicant, such repairs to be effected within seven (7) days after the Second Applicant has concluded the removal of his existing crops which are in the process of being harvested from the farm Gedagtenis;

6. The First and/or Second Applicants shall institute action against the First and/or Second Respondents within thirty (30) days of this order wherein the First Applicant and/or Second Applicants shall move for declaratory relief that it be confirmed that the First Applicant has acquired a limited real right / servitude over the Boomplaats route by way of acquisitive prescription and/or any other relief which the First and/or Second Applicants may be entitled to institute;

7. Without prejudice to the First Applicant’s rights to prove in the aforesaid action that the First Respondent is entitled to the relief which he shall pray for in such action and without any waiver of the First Respondent’s rights which he may have in Law, the First Applicant shall refrain, pending the finalisation of the action referred to in paragraph 5 above, from utilising the road between the farm Gedagtenis, district Reitz and the S74 road as marked on Annexure “FA1” to the Applicants founding affidavit between point “A” and point “B”;

8. The costs of this application shall be costs in the action to be instituted. In the event that such action is for whatever reason not instituted within thirty (30) days from date of this order, any party to these proceedings shall be entitled to set the issue of costs down for adjudication upon ten (10) days’ notice to all other parties to this application.”

[4] It is the applicants’ case that the respondent has contravened paragraph 7 of the said order in that on 8 March 2023 the applicant whilst in the company of her employee Mr Luis Nhampossa she observed the respondent’s vehicle parked on the Boomplaats route loading wood onto his vehicle. The first applicant confronted the respondent questioning his presence there despite the court order. The responded was adamant that there was nothing untoward about his presence in that area. He also threatened the first applicant, insulted her and also drove into her when she tried to climb into her motor vehicle causing her an injury to her hip and right hand.[1] The respondent only left after the police called by the first applicant instructed him to leave.

[5] The first applicant explains that it was not the first time that she was subjected to the respondent’s violent behaviour. Annexure “ET6” is a copy of the first two pages of the judgment of this court penned by Daffue, J with Ramlal, AJ concurring in relation to the acrimonious relationship between the first applicant and the respondent in the appeal launched by the respondent to set aside the protection order the first applicant had obtained against the respondent. Based on these reasons, the applicants seek an order that the respondent be called upon to show cause why he should not be:

“a. Committed to prison, for a period of 30 (thirty) days, for being in contempt of paragraph 7 of the Court Order made by Justice Molitsoane on 18 August 2022;

b. In the alternative to a. above, imposed a sentence of 30 (thirty) days’ imprisonment on condition that he does not make himself (sic) guilty of contempt of the above stated Court Order again;

c. Interdicted forthwith from threatening the first applicant, causing emotional and /or physical harm to the first applicant;

d. The respondent be interdicted from attending upon the farm Boomplaats, the Bloomplaats Route and from being within 200 metres from the first applicant...”

[6] A punitive cost order is also sought against the respondent.

[7] The existence of the court order and its provisions is not disputed. The application is opposed on the grounds that the application is not urgent. Besides the fact that the applicants delayed launching the application there is also no explanation on what basis is it averred that the applicants will not be afforded substantial redress at a hearing in due course.

[8] The respondent also denies having contravened the order because on that day he was not on the Boomplaats route. He explains that Boomplaats route is situated in what is referred to as a corridor between the applicants’ farms Boomplaats and the respondent’s Tempelmore farm. On the day of the incident the respondent was cutting wood with his employees on his farm Tempelmore and since there was no enough space for his vehicle he parked it just outside the fence which is part of Boomplaats route. Whilst busy cutting the wood the respondent noticed some burnt trees lying close by and he instructed his employees to cut them and load them in his vehicle.

[9] The respondent denies having assaulted the first applicant and states that it is the first applicant who approached him already aggressive, swearing at him and accusing him for being on her land. She even tried to assault him with a stick and then went and stood his vehicle’s path when he tried to drive off. She would move even after he hooted at her and when he moved his vehicle forward she suddenly fell down and started screaming. He screamed back with frustration when he drove past he realized that she was not hurt at all.

[10] The police who arrived on the scene after being called by the first applicant advised that to seek counsel from their respective attorneys and obtain protection orders.

[11] It is for these reasons above, that the respondent asserts that he has not contravened the court order and has also not attacked or assaulted the first applicant, the application must be dismissed with costs.

[12] It is a well-established principle that rule 6(12) of the Uniform rules of court permits the abridgment of the time periods contemplated in the rules of court to aid litigants who cannot be afforded substantial redress at a hearing in due course if they were to wait for the normal course laid down by the rules.

[13] The applicants must first make a proper case to be heard on urgent basis and explicitly state the circumstances which render the matter urgent and the reasons why the applicant would not be afforded redress at a hearing in due course in terms of rule 6 (12) (b) of the Uniform Rules of this Court

[14] According to the applicants, urgency is premised on the two main events emanating from the conduct of the respondent namely, the contravention of the court order and the assault on the first applicant. It is contended that the respondent’s contemptuous conduct clearly shows that he has no respect of the law as a result if the application is not heard as one of urgency the first applicant would suffer irreparable harm. Every day that goes by, the first applicant is at risk of being attacked and injured again by the respondent.

[15] There has been a considerable inaction by the applicant in launching these proceedings. The incident relied upon in both these instances occurred on 8 March 2023 the application was launched on 14 March 2023 for hearing on 23 March 2023 some three weeks after the incident. Despite the extreme delay in launching the application absolutely no attempt has been made to explain how it came about.

[16] Urgency due to threat to safety and bodily integrity including assault and emotional torments may justify the invocation of rule 6(12) provided, it has been established on the asserted facts that if the application is not heard earlier any order that might later be granted will by then no longer be capable of providing the first applicant with the legal protection she requires.[2] Irreparable harm does not create urgency.

[17] The applicant’s lack of candour in explaining the extreme delay in launching the application speaks to the conclusion that the matter is not urgent. I am not persuaded that the applicants cannot be afforded substantial relief in a hearing in due course. The consequence of this conclusion would be to strike the matter off due to lack of urgency however based on the fact that the parties have filed voluminous papers consisting of over 165 pages excluding their written heads of argument and also presented extensive arguments in respect of the merits of the application I deem it prudent to also determine the merits of the application.

[18] In considering whether the applicants have made out case for the orders sought I take into account that the requirements for contempt of court are the existence of a court order; the respondent is aware of the order and the non-compliance with the court order. Once these elements are established beyond a reasonable doubt wilfulness and male fides will be presumed and the evidentiary burden switches to the respondent to establish a reasonable doubt that the non-compliance was not wilful and mala fide.[3]

[19] In this matter the existence of the court order and that the respondent was aware of it is undisputed in that regard, the applicants must prove that the respondent has disobeyed the order beyond a reasonable doubt.

[20] The respondent’s affidavit raises genuine dispute of facts worthy to be accepted for the determination of the issues between the parties. The respondent insists that he had only parked on the portion of that route to collect wood from his own farm Tempelmore. He was not utilising the route to travel from his other farm Gedagtenis to the S74 road as prohibited by the court order. There are also contradictory versions with regard to the circumstances under which the first applicant sustained the injuries recorded in the J88 as according to the respondent it was the first applicant who was aggressive she even blocked his path of travel and although she ultimately fell on the ground it was by her own design.

[21] It is trite that: ‘where, in proceedings on notice of motion, disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.’[4]

[22] Motion proceedings are not geared for resolving factual disputes arising from the papers. Due to the long and troubled litigation history of the parties the applicants should have foreseen that these disputes would arise but chose to proceed with Motion proceedings confining themselves to have the prevailing disputes of facts decided on the affidavits alone and landed themselves in an unenviable position of not being able to discharge the onus laid on them.

[23] Having regard to the Plascon-Evans principle I am not persuaded that the applicants have discharged the onus of proving that the respondent has contravened the court order and that he has conducted himself in a manner that is prejudicial to the first applicant’s rights to warrant an interdictory relief.

[25] In the circumstances, I am not satisfied that the applicants have made out a case for the relief sought. The application fails, the costs shall follow the result.

[26] The judgment is late. As the parties will remember that the matter was argued during the last week of the term and at the conclusion of the arguments leave was granted to the parties to hand in their respective legal authorities which they referred to in argument together with their respective heads of argument by 31 March 2023. The applicant’s heads of argument and the legal authorities were forwarded to my email on 4 April 2023. On resumption of the next term secretaries were re-allocated, the respondent’s heads of argument which were apparently served on the Registrar did not come to my attention until the last week of this term on 15 June 2023 when my present secretary was auditing the reserved judgment files. The delayed judgment is truly regretted

[27] The following order is made:

(1) The application is dismissed with costs.

NS DANISO, J

APPEARANCES: Counsel on behalf of Applicants: Adv. N. Jagga Instructed by: Kotze Low Swanepoel Inc C/O McIntyre & van der Post BLOEMFONTEIN hanno@mcintyre.co.za Counsel on behalf of Respondent: Adv. J. Els Instructed by: Phatsoane Henney Attorneys BLOEMFONTEIN japiek@phinc.co.za

[1] Annexure “ET4” is a copy of the medical report “J88” detailing the injuries sustained by the first applicant.

[2] East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196.

[3] Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52[2006] ZASCA 52; ; 2006 (4) SA 326 (SCA) para 42; Secretary, Judicial Commission of Inquiry into allegations of state capture v Zuma and Others 2021 (5) SA 327 (CC) para 37.

[4] Plascon-Evans Paints Limited v Van Riebeeck Paints (Proprietary) Limited [1984] ZASCA 51; 1984 (3) SA 623 (AD) at 634H-I