Wingaardt and Others v Grobler and Another

• Jurisdiction: South Africa
• Judge: Alkema J and Jones J
• Judgment Date: 20 April 2010
• Citation: 2010 (6) SA 148 (ECG)
• Docket Number: 57/2009
• Hearing Date: 11 December 2009
• Counsel: T Zietsman for the appellants. J Nepgen for the respondents.
• Court: Eastern Cape Division

Alkema J: G

[1] The issue in this appeal concerns the question whether or not the switching-on of Christmas lighting in and outside her house in Jeffreys Bay by the respondent constitutes a nuisance or disturbance of the appellants' right to free and undisturbed use and possession of their property. The appellants sought a final interdict in the Humansdorp magistrates' court for an order prohibiting the respondents from switching H on any Christmas lights at their home during the festive season, which order was refused by the court a quo. The appellants come on appeal to this court against such refusal.

[2] The appellants chose to proceed by way of application and not by way of action. Neither party applied for leave to refer the factual disputes I to oral evidence, and both were content with the court making factual findings on the papers.

[3] It is now trite that, in an application for a final interdict on papers without resorting to oral evidence, the facts as stated by the respondent, together with the admitted facts in the applicant's affidavit, constitute the J

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A facts upon which the application is to be adjudicated; subject to the two qualifications that, firstly, a mere denial by the respondent of a fact alleged by the applicant may in certain circumstances not raise a real, genuine or bona fide dispute of fact; and, secondly, where the denials or allegations of the respondent are 'so far-fetched or clearly untenable that B the court is justified in rejecting them merely on the papers'. See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C.

[4] It is necessary to refer briefly to the parties. The application papers refer to three applicants (now appellants) and two respondents, who are C also the respondents on appeal. The respondents are husband and wife. They live at 3 Nell van der Poll Street, Jeffreys Bay. That is the address from which the alleged nuisance emanated. The first respondent is the signatory to the main opposing affidavit. Her husband gave notice of intention to oppose, but he did not make an opposing affidavit because he was away at sea as a commercial fisherman when the application was D launched. The first respondent is the de facto respondent. A reference in this judgment to the respondent in the singular should be understood to refer to her, unless the context shows otherwise.

[5] The first appellant/applicant resides with her husband (who is not a E party) at 5 AD Keet Road, Jeffreys Bay, which is diagonally across the road from the respondents' home. The second and third applicants are husband and wife. They live next door to the respondents. The protagonists in this litigation are the first appellant and the first respondent. For reasons which are given below, I shall refer in this judgment to the first appellant as the appellant.

F [6] Before dealing with the facts, there are two features of a procedural nature which call for comment.

[7] First, the founding affidavits of both the second and third applicants (now appellants) are not attested.

G [8] An affidavit is a written statement sworn to before a commissioner of oaths. An oath is administered in terms of the regulations made in terms of s 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. In terms of rule 6(1) of the rules of this court, a notice of motion must be supported 'by an affidavit as to the facts upon which the applicant relies for relief'. As such, an affidavit constitutes the factual H evidence before a court, upon which the matter is to be adjudicated. See Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA) at 200D. The same principle applies in the magistrates' court. See Jones & Buckle Civil Practice of the Magistrates' Courts in South Africa 9 ed vol 2 at 55-12A. It follows that, I if there is no affidavit before a court in application proceedings in support of the relief claimed, there is no evidence upon which the relief can be granted.

[9] It is trite that in certain circumstances a court has the discretion to condone strict compliance with the regulations prescribing the administration J of oaths, but, where no oath was administered, there is no

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evidence before the court and the unattested statement is pro non scripto, A and incapable of condonation. The second and third appellants are accordingly not before this court, and they were also not before the court a quo.

[10] Second, and by consent between the parties, the court a quo on B 26 March 2008 made an order admitting further supplementary (aanvullende) affidavits from the first and second appellants (as applicants). This resulted in a further set of answering and replying affidavits from the respondents and appellants, respectively.

[11] The application for the filing of a further set of affidavits was C motivated by the appellants on the strength of the happening of certain events after 12 December 2007, which were said to be of material interest (wesenlike belang) to the hearing of the application. It is of some import to note that the further set of affidavits filed by the first and second appellants was not intended to supplement or substitute the D original founding affidavits - the parties expressly agreed not to term the further affidavits as 'founding affidavits', but rather as 'supplementary affidavits'. In consequence, the second appellant remained without a founding affidavit capable of being supplemented and the consent order of 26 March 2008 had no effect on and did not cure his lack of a founding affidavit in the proceedings, and nor did it introduce him as a E party to the proceedings.

[12] In regard to the first (remaining) appellant, her first replying affidavit is dated 11 December 2007 and was filed and served before the events occurred, which are described in the appellant's supplementary affidavits. As such, litis contestatio had already occurred when the further affidavits were filed, which merely served to open fresh factual issues. F

[13] In application proceedings the three sets of affidavits (founding, answering and replying) have a dual purpose: first, they constitute the evidence before the court and play the same role as oral evidence in action proceedings; and second, they define the issues (both factual and G legal) which result in litis contestatio between the parties in the same way as pleadings in an action. I believe it is essentially for this reason, as a general rule (there are exceptions), that an applicant is required to stand or fall by his or her founding affidavit and is not generally allowed to supplement his or her founding affidavit by adducing new facts in a replying affidavit. This much is trite: see Erasmus Superior Court Practice H at B1-45 and the cases cited in fn 9.

[14] To hold otherwise will result in allowing parties to continually present new or fresh evidence to court as and when it pleases them and when it becomes available, resulting in unwieldy and never-ending trials I and applications and a blurring of factual and legal issues. It is certainly not in the interest of justice to allow such a practice, even by agreement between the parties. I will shortly again return to this issue.

[15] Like most rules and principles in law, there are often exceptions to the general rule. Attempted definition of the ambit of the court's J

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A discretion to allow further affidavits is neither easy nor desirable, as was said by Holmes J in Milne NO v Fabric House (Pty) Ltd 1957 (3) SA 63 (N) at 65A:

'(I)t is neither necessary nor desirable to say more than that the court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and that basically it is a question of fairness to both B sides.'

This approach was confirmed by Ogilvie Thompson JA in James Brown & Hamer (Pty) Ltd (Previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D - G.

C [16] Generally, a fourth set of affidavits will not be allowed, unless there are 'essential' or 'special' circumstances which will justify a further set. See Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5 ed vol 1 at 439; South Peninsula Municipality v Evans and Others 2001 (1) SA 271 (C) at 283A - H; Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N) at 38J - 39A. D

[17] I do not believe that 'essential' or 'special' circumstances exist which justified the filing of a fourth set of affidavits. The bulk of the evidence contained in the further affidavits by both parties is irrelevant to the legal issues under consideration. They refer mainly to petitions from E the public expressing popular support for a particular point of view. Lengthy newspaper clippings and articles are attached, expressing views and opinions of private individuals, and containing reports on the feud between the parties. The affidavits abound with personal attacks on opposing parties and witnesses, and contain endless repetition.

[18] Although public policy and the interest of society are relevant F considerations (more about this later), public opinion and popular support are not tantamount to public policy; and public interest is conceptually very different from public opinion. Legal principles and laws are not established by popularity contests - the death penalty is an example. The factual allegations in the newspaper reports on the merits G are disputed, and do not constitute admissible evidence in a court of law.

[19] In Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) ([2003] 2 All SA 616) at 439G - H Schutz JA remarked: H

'There is one other...