Sundays River Valley Municipality v Cinzaco 180 (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Lowe J
• Judgment Date: 14 March 2013
• Docket Number: 2864/12
• Court: Eastern Cape Division
• Hearing Date: 21 February 2013
• Citation: 2013 JDR 0885 (ECP)

Lowe, J:

INTRODUCTION:

[1]

Applicant in this matter on application, sought that the agreement concluded between the parties which is referred to as the "Addo Land Availability Agreement" in respect of Erf 943 Addo Township on 25 February 2008 be declared void ab initio. Respondent brought an application to strike

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out the entire founding affidavit of Mr Ngoqo, the supporting affidavit of Mr Somngesi and the entire replying affidavit of Ngoqo

[2]

The application was opposed by respondent which filed answering papers, both parties seeking costs on the scale as between attorney and own client. Counsel argued that the striking out application should be dealt with as part of the main application the basis thereof being the allegation that the affidavits were entirely inadmissible hearsay.

[3]

Both counsel in the matter filed quite extensive heads of argument, persisting in some but not all of the issues raised on the papers.

[4]

Counsel for respondent Mr Pretorius quite correctly, did not persist in the suggestion that was made in the answering affidavits that applicant should be estopped from seeking the relief sought.

THE APPROACH TO DISPUTES OF FACT ON APPLICATION:

[5]

Having regard to the nature of this application, the allegations and counter allegations made it is relevant to refer to the principles applicable not only to answering affidavits, but to the resolution (if appropriate) of factual disputes that might arise on the papers between the parties.

[6]

In answering affidavits a respondent is required to set out which of the applicant's allegations he admits and which he denies and to set out his

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version of the relevant facts. Of course the applicant's allegations of fact is not a pleading, and a statement of lack of knowledge, coupled with a challenge to the applicant to prove part of his case does not, amount to a denial of the averments of the applicant. See Gemeenskapontwikkelingsraad v Williams (2) 1977 (3) SA 955 (W); Traut v Fiorine [2007] 4 All SA 1317 (C) at para [35].

[7]

It is normally not sufficient for a respondent to rely on a bare or unsubstantiated denial but the respondent may, of course, attack the credibility of the applicant's allegations by examining their inherent validity or probity in all the proved circumstances and without advancing further evidence. See Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 and 1165; Engar v Omar Salem Essa Trust 1970 (1) SA 77 (N); Kelleher v Minister of Defence 1983 (1) SA 71 (E).

[8]

In this matter and on numerous issues, respondent, whilst putting up a version in paragraph 12 of its answering affidavit, nevertheless states that it has no knowledge of the contents of paragraphs 10 to 13 of the applicant's founding affidavit putting applicant to the proof thereof. It takes the same approach in respect of applicant's paragraph 15, and pleads no knowledge of the meetings of applicant's council that took place or of the resolution LMRN1.

[9]

As will be seen hereafter, this has the effect that respondent may well not be held to have properly put in issue the crucial allegations in this regard,

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save that it is still open for me to consider respondent's counsel's argument that these allegations constituted hearsay material by applicant and should not be admitted or that no regard could be had thereto.

[10]

In order to adjudicate this issue it is necessary to analyse the contents of the affidavits in the light of the rules which I refer to hereafter. Motion proceedings, unless relevant to interim relief, are about the resolution of legal issues based on common cause facts. They are not appropriate generally to the resolution of factual disputes as they are not designed to determine probabilities, unless the circumstances are special.

[11]

A real dispute of fact may arise of course where the respondent denies one or more of the material allegations made by the applicant and produces evidence to the contrary or applies for the leading of oral evidence (no such application for the leading of oral evidence having been made by either party in this matter).

[12]

Of course a real dispute of fact does not usually arise where the respondent:

[12.1]

States that he can lead no evidence himself or by others to dispute the truth of the applicant's statements but puts applicant to the proof; or

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[12.2]

Relies on a bare denial of allegations contained in the applicant's affidavits. See Saflec Security Systems (Pty) Ltd v Group Five Building (East Cape)(Pty) Ltd 1990 (4) SA 626 (E); Ripoll-Dausa v Middelton NO [2005] 2 All SA 83 (C).

[13]

The Plascon-Evans rule (Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634), relevant to disputes of fact provides that if disputes of fact arise on the affidavits and neither party asks that the matter be referred for evidence or trial, the court will not do so, and is entitled to deal with the application on the undisputed facts. If notwithstanding that there are facts in dispute on the papers the court is satisfied that the applicant is entitled to relief, in view of the facts stated by the respondent together with the facts in the applicant's affidavits which are admitted or have not been denied by respondent, it will make an order giving effect to such finding. See National Director of Public Prosecutions v Zuma (Mbeki and Another Intervening) 2009 (2) SA 277 (SCA) at para [26]. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact or is so farfetched that a court may simply reject same on the papers. In motion proceedings the question of onus does not arise. The more serious the allegations or its consequence the stronger must be the evidence before the allegation will be found to have been established. (Zuma supra: [26] and following.)

[14]

I should explain clearly in adding to what I have set out above, that there may be instances where a bare denial meets the requirements of

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placing an applicant's allegation seriously in dispute in circumstances where there is no other way open to the disputing party and nothing more can therefore be expected of him. Even in this situation, however, this may not be sufficient even if the facts alleged lie within the knowledge of the averring party where no basis is laid for disputing the veracity of the averment or its accuracy. It must be remembered that:

"This rule of evidence, namely that if the facts are peculiarly within the knowledge of a defendant the plaintiff needs less evidence to establish a prima facie case, applies to trials. In motion proceedings the question of onus does not arise and the approach set out in the preceding paragraph governs irrespective of where legal or evidential onus lies."

(Zuma : supra Para (26) and following.)

[15]

In arriving at this decision, the court must and I will have regard to the broader matrix of circumstances all of which need to be borne in mind when arriving at a decision.

THE FACTS AND ISSUES:

[16]

The following facts are, on a proper reading of the affidavits filed by the various parties, common cause:

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[16.1]

That the deponent Ngoqo is the municipal manager of the applicant municipality having been appointed as such on 6 April 2012 long after the events relevant hereto unfolded;

[16.2]

The appellant and the respondent concluded an agreement for the sale and transfer of Erf 943 in Addo Township ("the Erf") falling within applicant's jurisdiction signed and dated on 25 February 2008 (LMRN4 to the papers);

[16.3]

This agreement was signed for and on behalf of applicant by the then municipal manager N K Singanto ("Singanto") and by Fanie de Lange for respondent;

[16.4]

The agreement post-dated an advertisement placed by applicant in the EP Herald on the 28 January 2008 calling for proposals for the development of a piece of land in "Addo town" (failing to identify which piece of land) but with reference SCH/adt-2-2008 (signed by Singanto) by no later than 14 February 2008;

[16.5]

On 18 February 2008 (a mere four days after the tenders closure date) Singanto addressed a letter to respondent informing respondent that the tender (which the letter indicates had being submitted) had being considered by the Bid Adjudication Committee which had resolved that the tender SCN–adt-2-2008 had being awarded to respondent, subject to

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the submission of a detailed business plan and the signing of a memorandum of undertaking and the signing of a land availability agreement (calling for acceptance within seven working days);

[16.6]

Respondent accepted this on 19 February 2008;

[16.7]

The municipality appointed attorneys Canter and Company to attend to the transfer of the property (Erf 943) in terms of the agreement;

[16.8]

Those attorneys addressed a number of letters to the municipality, the first on the 27 May 2008 inter alia asking for confirmation that in terms of paragraph 15.2 of the written agreement a deposit of 10 % of the purchase price had been paid by respondent to applicant (to which it seems there was no response); and a further letter on 27 November 2008 referring to other matters relevant to the transfer;

[16.9]

Finally on the 14 November 2011 there is a further letter from Cantor and Co to applicant referring to the instruction from applicant to effect transfer to respondent and calling inter alia for confirmation of the payment of the R60 000-00 deposit referred to in the first letter;

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[16.10]

Analysis of the agreement establishes this was indeed in respect of the Erf alleged (although incorrectly described...