Twin City Trading (Pty) Ltd and Another v Morakile and Others (UM09/2023) [2023] ZANWHC 160 (12 September 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

NORTHWEST DIVISION – MAHIKENG

CASE NO: UM09/2023

Reportable: YES

/ NO

Circulate to Judges: YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

TWIN CITY TRADING (PTY) LTD

1stApplicant

(Registration Number: 2010/008015/07)

ITUMELENG ANDREW BABEILE

2nd Applicant

(Identity Number:7[...])

And

VUYISWA RHODA MORAKILE

1st Respondent

ITUMELENG RHODA MORAKILE 2ndRespondent

MMOLOKI ADMILIA KITSO 3rdRespondent

UNLAWFUL PERSONS THREATENING,

ASSAULTING INTIMIDATING THE APPLICANT’S

EMPLOYEES, CONTRACTORS AND/OR PREVENTING

THEM FROM GAINING ACCESS TO AND/OR

CONDUCTING CONSTRUCTION WORKS AT ERF 5[...]

(A PORTION OF ERF 2[...]) H[...] SITUATED IN

NALEDI LOCAL MUNICIPALITY, REGISTRATION DIVISION I.N

PROVINCE OF NORTH WEST 4thRespondent

THE SOUTH AFRICAN POLICE SERVICE 5thRespondent

STATION COMMANDER: VRYBURG

THE SOUTH AFRICAN POLICE SERVICE 6thRespondent

STATION COMMANDER: H[...]

These reasons for the order made were handed down electronically by circulation to the parties’ representatives via email. The date of hand-down is deemed to be 12 September 2023.

REASONS FOR ORDER MADE

Mfenyana J:

Introduction

[1] On 26 January 2023 I granted an order, as a sequel to an urgent application launched by the applicants which I disposed of on the same day. As is apparent from the notice of motion, the applicants sought certain interdictory relief against the respondents, on the grounds set forth in the applicants’ founding affidavit.

[2] Having applied my mind to the facts of the application, I considered it to be urgent, and granted an order interdicting the respondents from:

“ 2.1 Trespassing upon the First Applicant’s property, Erf 5[...] (a portion of Erf 2[...]) H[...] situated in Naledi Local Municipality, Registration Division I.N, Province of North West (“the subject property”);

2.2 Intimidating, harassing and/ or threatening the Applicants, Applicants’ employees or Applicants’ contractors in any manner whatsoever;

2.3 Assaulting the Applicants, applicants’ employees or Applicants’ contractors in any manner whatsoever;

2.4 In any way whatsoever, hampering or frustrating construction activities on the subject property;

2.5 Causing any damage whatsoever to the Applicants or the Applicants’ contractors’ property, vehicles, machinery, equipment and / or tools;

2.6 Causing any damage to the fence and walls surrounding the subject property or any of the construction works on the subject property;

2.7 Confiscating any of the Applicants’ or the Applicants’ contractors’ property, vehicles, machinery, equipment and or tools;

2.8 Blocking or restricting access to any entrances or access roads to the subject property in any way whatsoever;

2.9 Enticing members of the community to resort to violence and disrupt the construction activities on the subject property;

2.10 Gathering closer than 100m from the boundary of the subject property;

3. A mandamus is issued against the Fifth and Sixth Respondents (the SAPS to implement and enforce the contents of paragraph 2 above against the First to Fourth Respondents, with the assistance, if required, of the security companies employed or to be employed by the Applicants and arrest and detain any person acting in contravention of paragraph

2 above;

4. The First to Fourth Respondents are ordered to pay the costs of the application on the scale as between attorney and client, jointly and severally, the one paying, the others to be absolved.”

[3] The application proceeded on an unopposed basis as, having filed a notice to oppose the 1st to 4th Respondents never filed any answering affidavits.

[4] In granting the above order, I did not provide written reasons therefor. Without seeking reasons, on 15 February 2023 the first to third respondents jumped the gun and filed an application for leave to appeal against the order.

Application for leave to appeal

[5] As aforesaid, the application for leave to appeal was filed on 15 February 2023. The notice of application for leave to appeal sets out various grounds of appeal, the essence of which is that the Court misdirected itself in various respects relating, inter alia, to the following:

(i) Not considering that the Naledi Local Municipality had a direct interest in the dispute and the Municipal Manager was not before Court.

(ii) Not considering that the matter was not properly before Court as the respondents were not afforded “adequate time to consult a legal representative and file properly motivated opposing papers”.

(iii) Not considering that the first to third respondents were not part of the gathering and the pictures, had nothing to do with the events of 20 January 2023 described in the founding affidavit, “as these (events) were not arranged and/or were directed to the applicants” (sic), were not part of the pictures, and that no criminal case was registered against the 1st to 4th respondents.

(iv) Not considering the fact that the affidavit by the first applicant was commissioned on 24 January 2024 when according to the first applicant, on 23 January 2023 there was peace and harmony, as set out in the founding affidavit (paragraphs 4.51, 4.52 and 4.53). Notably, paragraph 4.53 states:

“ After my introduction of the newly appointed CLO, the Second applicant immediately proceeded with its operations at the subject property, and we soon thereafter realised that the group of people which I addressed as aforesaid, became increasingly violent.”

[6] It is thus difficult to fathom the respondents’ assertion in this regard, as the applicants stated that the group of people became ‘increasingly violent on the day.

(v) In granting costs against the first to third respondents when there is no evidence against them.

[7] On hearing the application for leave to appeal on 23 February 2023, I dismissed it with costs.

[8] On 6 March 2023, the 1st to 3rd respondents (the respondents), ostensibly in keeping with the provisions of Rule 49(1)(b), filed a request for reasons for the order granted on 26 January 2023, (against which an application for leave to appeal had already been brought and dismissed). The respondents also sought

reasons for the order of 23 February 2023, (dismissing the application for leave to appeal).

[9] In the request for reasons, the respondents state:

“1. The Applicants have elected to appeal the said Orders of the 26thJanuary 2023 and 23rdFebruary 2023 … and require the said written reasons as it is a requirement in terms of the Rules of this Honourable Court.

2. The Applicants are incapable to launch and prosecute the said appeal without the said written reasons from the said judge.

3. The Rules of this Honourable Court require that the said reasons must be

part of the appeal application.”

The Law

[10] Applications for leave to appeal in the High Court are governed by Rule 49 of the Rules of court. Rule 49(1)(b) is instructive. It provides:

“49(1)

(b) When leave to appeal is required and it has not been requested at the time of the judgment or order, application for such leave shall be made and the grounds therefor shall be furnished within 15 days after the date of the order appealed against:

Provided that when the reasons or the full reasons for the court’s order are given on a later date than the date of the order, such application may be made within 15 days after such later date: Provided further that the court may, upon good cause shown, extend the aforementioned periods of 15 days.”

[11] The proviso to Rule 49(1)(b) portends that ‘the reasons or full reasons for the court’s order shall be given by the court before the application for leave to appeal is made. This is hardly surprising as in our legal system, it is the ratio decidendi of a judge and not the judgment itself that forms the subject matter of an appeal. It is essential that the applicant for a leave to appeal complies with the abovementioned rule before electing to exercise his or her option of making an application for leave to appeal. Without such reasons, the party seeking leave to appeal may not know how a judge has reached a particular conclusion.

[12] The peculiar nature of the request for reasons of the order of 26 January 2023, is that it has been made post ex facto, after the application for leave to appeal had been dismissed. In my view, this is a blight in the present request for my reasons in granting the order of 26 January 2023, as it ought to have been made before the application for leave to appeal was heard. The respondents, at their own peril, elected to proceed with the application for leave to appeal, without the benefit of the Court’s reasoning and only sought such reasons after the horse had bolted.

[13] It is trite that grounds of appeal may only stem from reasons provided by the Court as the basis for its order or judgement. In Strategic Liquor Services v Mvumbi NO & Others 2010 (2) SA 92 (CC), the Constitutional Court held that the absence of reasons is an impediment to the appeal process. This much is acknowledged by the respondents in so far as they state in their notice that they “are incapable to launch and prosecute the said appeal without the said written reasons from the said judge.”

[14] Discernible from the above judgement of the Constitutional Court, is that it is not possible for a party to proceed with an application for leave to appeal or the appeal process itself, as the court hearing the application for leave to appeal may not be in a position to comprehend the reasons for the appeal, where no reasons for the decision of the court a quo have been furnished. It is tantamount to putting the cart before the horse and expecting the horse to pull the cart at the same time, when the contrary result is indicated.

[15] It is not possible for the court hearing the application for leave to appeal to understand the error in its reasoning, in the absence of such reasons for its judgement or order. Once again, this is hardly surprising, as a reasoned judgement enables ‘the losing party to take an informed decision’ regarding its options in the matter, which is the essence of the proviso to rule 49(1)(b). The Constitutional Court judgment in Mvumbi is edifying, and deserves no second- guessing. It is binding on this Court and on all other courts below it. I am bound in terms of the stare decisis rule to follow it, as equally, I align myself with it.

[16] The leave to appeal is premised on a trite legal principle that the court a quo erred in its reasoning and that another court presented with same set of facts would find otherwise. It is also premised on the prospects of success by the appellant. Such prospects of success cannot be said to exist when the application for leave to appeal, as in the present case, has been filed without reasons.

[17] In the premises this Court is disinclined to furnish such reasons when the application for leave to appeal has been disposed of. The request by the respondents to seek such reasons at this stage is tantamount to flogging a dead horse, and must be declined.

Order of 23 February 2023

[18] At the hearing of the application for leave to appeal, it was contended on behalf of the respondents that the main thrust of the application was that there was no link between the respondents and the misconduct for which the order was granted. Thus, it was further contended that the order was issued against the wrong respondents. Counsel for the respondents placed reliance on the judgement of the Constitutional Court in Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates (Pty) Ltd and Another 2022 (5) SA 18 (CC) (1 March 2022)[1] for the proposition that the respondents were not linked to the crime; that the criminal offences were not reported; and that the

applicants’ alternative remedy was to go and report the matter to the police. They further averred that the applicants ‘jumped

the gun’ and thus their application was premature.

[19] In opposing the application, the applicants argued that the respondents, having filed a notice to oppose the application, elected not to come to court on the day of the hearing of the matter, and offered no version. Thus, only the respondents’ version was placed before Court. With regard to whether a link existed between the unlawful conduct, and the respondents, it was argued that the first to third respondents were identified throughout the activities.

[20] The applicants contented that the unlawful activities of the respondents threatened their life and limb, and the harm was irreparable. In that way, the applicants, averred that they were entitled to obtain a final interdict against the respondents. Thus, the application for leave to appeal was an abuse of the process of the court, with no prospect of success, and should be dismissed with a punitive cost order, the applicants further averred.

[21] In reply, it was contended on behalf of the respondents that the applicants were required to put up a proper case, and in line with the Plascon Evans’ rule, the matter should be decided on the evidence of the respondents alone. That is indeed so. As matters stand, the respondents have not offered any version. Their belated submissions in an application for leave to appeal do not alter the situation in any way.

[22] As far as the respondents’ argument goes, that the applicants have a duty to establish a link and cannot ‘willy nilly’ accuse the respondents of committing a crime, the evidence of the applicants which has not been gainsaid by the respondents links the respondents to the unlawful activities sought to be interdicted, these are set out extensively in the founding affidavit. In the circumstances, and in the absence of any evidence to the contrary, the Court is bound to accept the uncontroverted version of the applicants, which is that on 11 January 2023 the respondents made threats of violence and derailed the interview process, demanding that the CLO position be readvertised. They further stated that as chaos broke, the applicants engaged with the first to third respondents in particular, who were part of the group that converged at the applicants’ premises on 11 January 2023. It is not sufficient for the respondents to belatedly say that they had nothing to do with the events of 20 January 2023 because their faces do not appear in any of the pictures.

[23] In the founding affidavit, the applicants unequivocally stated that after addressing the group of people on 23 January 2023, the group became increasingly violent. “It is at this juncture that I noticed the First and Second Respondents and realised that the group of people to whom I just introduced the newly appointed CLO, is the Fourth Respondent”, the deponent further stated.

[24] It was not necessary that the respondents be associated with all of the incidents of unlawful conduct, and on each of the days specified in the application. The respondents were known to the applicants, and were positively identified on specific days carrying out their unlawful activities.

[25] While the first and second respondents appear to have led the group and initiated the unlawful activities, the third respondent associated himself with the respondents and specifically met with the applicants, and threatened the applicants when their demands were not met. Faced with these serious allegations, the respondents elected not to oppose the application.

[26] In paragraph 4.46.1 the deponent further states:

“The Second Respondent made it clear that the violence will not stop and that there will be bloodshed if the Applicants, their employees and contractors are to return to the subject property.”

[27] The respondents’ reliance on Oak Valley Estates does not assist the respondents. What Oak Valley Estates postulates is that ‘there must be some link between the (respondents) and the alleged actual or threatened injury.’ The first to third respondents are specifically linked to the unlawful activities which form the subject of the interdict. As illustrated above, they actively participated in the activities, over a period of time. It can therefore not be correct that they were not ‘involved in any of the conduct sought to be interdicted’. They were not mere participants who could not be identified.

[28] I do not understand Oak Valley Estates to be authority for the proposition that the respondents must be linked to each and every unlawful activity. To the extent that the applicants ‘identified the respondents by name’ as they held meetings with them, this matter is not on all fours with the principles enunciated in Oak Valley Estates.

[29] The difficulty with the respondents’ submissions is that in determining an application for leave to appeal, a court is confined to the record of proceedings. As it stands, the version put up by the applicants satisfied the requirements for the interdictory relief they sought. That version was not gainsaid by the respondents. The Court cannot come to the aid of the respondents simply on the basis that they would have put up a version, had they opted to do so in the main application. In Lodhi 2 Properties v Bondev [2007] SCA 85 (RSA), though concerned with a different issue, the SCA observed that “a judgement granted against a party in his absence cannot be considered to have been granted erroneously because of the existence of a defence on the merits which had not been disclosed to the judge who granted the judgment.”[2] What the respondents attempt to do, is to proffer a defence, and put up a version which was not before the Court at the time of hearing the main application. That, they cannot be permitted to do.

[30] There is in my view, no prospect that another court would find that the applicants ought not to have been granted the interdictory relief in the circumstances of this case. ‘Prospects of success’ is the threshold for an application for leave to appeal as set out in section 17(1)(a) of the Superior Courts Act, No. 10 of 2013 and the absence of such prospects disentitles the applicant for leave to appeal, from the relief it seeks.

[31] In respect of costs, the respondents averred that the Court erred in awarding costs against them, on attorney and client scale. It is trite that attorney-client costs may be awarded where “an attempt is made to trifle with the court.”[3] In this matter, the respondents knew that the matter was before court, having accepted service of the papers in the application.

Despite notifying of their intention to oppose, they filed no further papers. They did not attend court on the day of the hearing, and proffered no explanation for their absence. Their conduct is objectionable. They did not have any intention of opposing the matter, despite filing a notice to oppose. In so doing they deprived themselves of the opportunity to put their version before the Court, and deprived the Court of the benefit of knowing the basis of their opposition.

[32] In assessing the circumstances which gave rise to the application, including the conduct of the respondents, I considered it just that the respondents pay the costs occasioned in bringing the application, on attorney- client scale. Thus, there seems to be no justification why the applicants should be put out of pocket with regard to the expenses attributable to the litigation.[4]

[33] Consequently, having found no merit in the respondents’ contentions and the grounds for leave to appeal, I dismissed the application for leave to appeal with costs.

S. MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

APPEARANCES

DATE OF ORDER GRANTED: 23 FEBRUARY 2023 DATE REASONS REQUESTED: 06 MARCH 2023 DATE OF JUDGEMENT: 12 SEPTEMBER 2023 For the 1st, 2nd & 3rd Applicants: Adv M. Ndziba Instructed by: Morathi & Mataka Incorporated c/o: Maleshane Attorneys Email: admin@maleshaneinc.co.za Email: morathimatak@mweb.co.za For the Respondents: Adv J.A Venter Instructed by: Weavind & Weavind Inc c/o: Labuschagne Attorneys Email: litigation2@labuschagneatt.co.za Email: justus@weavind.co.za

[1] Neutral citation: Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty) Ltd and Another [2022] ZACC 7.

[2] At para 17.

[3] City of Cape Town v Satz 1939 CPD 195.

[4] Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD 597.