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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 306/2018

Date heard: 16 August 2018

Date delivered: 28 August 2018

In the matter between

THE TRUSTEES FOR THE TIME BEING OF

THE TREDEAN TRUST (IT 781/2000) BEING

IVAN HANSEN N.O.

JENNIFER ANNE HANSEN N.O.

PETER MANSOUR SAHD N.O.                                                                            Applicant

Vs

YITBALEK YOSEF WOLDEGZIBHERE TRADING

AS YITBALEK TRADING ENTERPRISE AND

JOBELA 1000 TAVERN                                                                           First Respondent

WILFRADAN BELEGGINGS (PROPRIETARY)

LIMITED                                                                                              Second Respondent

ENOCH MGIJIMA MUNICIPALITY                                                         Third Respondent

 

JUDGMENT

 

PICKERING J:

[1] During February 2018 applicant launched an application against the three respondents herein, namely Yitbalek Yosef Woldegzibhere Trading as Yitbalek Trading Enterprise and Jobela 1000 Tavern; Wilfradan Beleggings (Proprietary) Limited; and Enoch Mgijima Municipality as first, second and third respondents respectively in which it sought, inter alia, the following relief:

“(a) That first and second respondents be interdicted and restrained from using the property, being Erf 931, Queenstown, alternatively as 2 Grey Street, Queenstown (“the property), as a Tavern, or for any other usage than that provided for in the Queenstown Zoning Scheme, Enoch Mgijima Municipality, of January 2007, promulgated in terms of the Land Use Planning Ordinance 15 of 1985;

(b) That first respondent be interdicted and restrained from playing amplified music from the property and to abate all noise from the property;

(c) …

(d) That the respondents pay the costs of this application, jointly and severally.”

[2] On 17 May 2018 the matter came before Lowe J on which date first respondent sought a postponement of the matter together with an order granting leave to first and second respondents to file further affidavits.  The learned Judge duly granted the postponement together with a further order that should first and/or second respondent wish to bring an application for leave to file further affidavits they were to do so within seven court days.  Such application for leave to file further affidavits was duly launched by first and second respondents.

[3] First respondent is cited as a businessman trading as Yitbalek Trading Enterprise and Jobela 1000 Tavern although it is now common cause that Jobela 1000 Tavern is a close corporation which was duly registered during 2008.  Second respondent is the owner of Erf 931, 2 Grey Street, Queenstown.  Third respondent is Enoch Mgijima Municipality.  The main application is opposed only by first and second respondents. 

[4] Up until April 2008 the town of Queenstown operated under Town Planning Scheme no 3 of 1975.  This Town Planning Scheme was repealed in April 2008 and replaced with a Town Planning Scheme which currently remains in place.  The aforesaid Mr. Yitbalek Yosef Woldegzibhere was granted a liquor licence in his personal capacity in 2006 at a time when Scheme no 3 of 1975 was still in place.  That scheme made no provision for the operation of a tavern.  The zoning certificate applicable to Erf 931 in terms of the 2008 scheme and issued on 23 September 2017 (Annexure JA6) reads as follows:

“ZONING CERTIFICATE

This is to certify that Erf 931, Queenstown situated at 2 Grey Street, Komani is zoned “Business I” in terms of the Town Planning Scheme in operation.  The Restrictions for the above property are as follows:

Permitted Uses: Business Premises, General Residential Building, Hotel, Supermarket, Place of Entertainment, Public Garage, Filling Station, Liquor store, Funeral Parlour.

No consent use has been applied for or approved over Erf 931.”

[5] Applicant accordingly avers in its founding affidavit that the operation of the tavern is not catered for in terms of the zoning scheme and that consent to use the property as a tavern has not been applied for or granted and that the tavern is accordingly operating illegally.  Applicant avers further that the operation of the tavern has created an intolerable nuisance in certain respects.  The allegations concerning the creation of the nuisance are denied by first and second respondents.

[6] More pertinent, however, are the allegations concerning the operation of the tavern in contravention of the conditions of the zoning certificate.  In its founding affidavit applicant alleges, with reference to the conditions of the zoning certificate (Annexure JA6) that the zoning certificate is clearly for “Business I” and the consent use is, inter alia, for a “tavern”, which consent has not been granted by the third respondent.  In an answering affidavit attested to by Mr. Woldegzibhere first respondent refers to the fact that during 2006 the close corporation had been granted a liquor licence.  It should be mentioned, however, that the close corporation was in fact only incorporated during 2008 and that the licence was therefore clearly issued to first respondent in his personal capacity.  In this affidavit first respondent appears to aver that by virtue of the fact that he was granted a liquor licence first respondent was entitled to operate a tavern from the said premises. 

[7] As to the averments by applicant concerning the zoning certificate Mr. Woldegzibhere on behalf of first respondent contents himself with stating that the allegations were noted; that he had no knowledge as to “how the property had been zoned or demarcated according to the Town Planning Scheme”; and that he “cannot deny or confirm the correctness” of those averments.  Furthermore, throughout his opposing affidavit first respondent refers to the business as a tavern and makes no allegation to the effect that the business in fact operates as a restaurant.  The relevance of this will appear hereunder.  A number of other issues were also raised by the various respondents but it is not necessary to detail these averments in the present application.

[8] In his affidavit in support of the application for leave to file further affidavits Mr. Woldegzibhere commences by stating that he does not seek to amend nor to withdraw first respondent’s answering affidavit and that he seeks merely to supplement it in certain respects.  For present purposes only two of the issues dealt with in the supplementary affidavit attested by to Mr. Woldegzibhere which first respondent seeks leave to file are relevant.  These issues concern the zoning of the property and whether the business conducted by first respondent on the property is that of a tavern or of a restaurant.

[9] I will deal firstly with the issue of the zoning of the property.  As set out above Mr. Woldegzibhere stated in first respondent’s answering affidavit that he had no knowledge as to “how the property had been zoned” and could not confirm or deny applicant’s averments in that regard.  He also makes certain averments concerning his failure to have addressed the issue of zoning and sets out the alleged reasons for that failure.  I will return to that issue hereunder.

[10] In the supplementary affidavit which first respondent wishes to seek leave to file Mr. Woldegzibhere states as follows:

“I have now done my own research and I annex hereto as Annexure E a zoning certificate issued by third respondent which post-dates the zoning certificate of the applicants and is dated 26 April 2018.  Such zoning certificate clearly sets out that the permitted uses for Erf 931 Queenstown situated at Grey Street is amongst others a trading tarven.” (sic)

[11] Annexure E reads as follows:

“ZONING CERTIFICATE

This is to certify that Erf 931 Ma 1000 Tarven Queenstown situated at Grey Street is zoned “Business I” in terms of the Town Planning Scheme in operation.  The restrictions for the above property are as follows:

Permitted Uses: Business Premises, General Residential Building, Hotel, Supermarket, Trading Tarven (sic), Pubic (sic) Garage, Filling Station, Liquor store, Funeral Parlour.”  (My emphasis)

[12] The zoning certificate is purportedly signed by A. Boucher in her capacity as “Acting Manager: Planning”.

[13] In response hereto applicant alleges that the purported zoning certificate is fraudulent.  Applicant avers as follows in this regard:

“The purported ‘zoning certificate’ and affidavit by Mr. Woldegzibhere were shown to Ms. Boucher and I attach hereto a copy of the letter received from Ms. Boucher, marked Annexure JA46 that states the following:

‘I was appalled to find that a zoning certificate was issued under my name dated 26 April 2018 for Erf 931, Queenstown, without my knowledge or approval.  The certificate contains many errors and false information.  In light of the above I was forced to compose an affidavit to clarify the discrepancies.  I am still taking legal advice on proceeding with a case of fraud in regard to the false document.  Attached please find an affidavit stating my case on the false document.  I in no way endorsed the zoning certificate dated 26 April 2018 for Erf 931, Queenstown, I stand by the statement in the report dated 11 May 2018 with regards to the property.’”

[14] Applicant refers further to a copy of the Ms. Boucher’s affidavit made to the South African Police Services in which she states as follows:

“I did not issue or authorize the issuing of a zoning certificate dated 26 April 2018 for Erf 931, Queenstown as presented in the Grahamstown High Court under case number 306/2018.  The zoning certificate contains incorrect information in terms of permitted uses – (1), further the structure of the documents is incorrect – (2).  I am not permitted to draft letters under my name, letters are always written under the Director of the Directorate.  I issue the full report on Erf 931, Queenstown, dated 11 May 2018 which was given to the owner of the property.”

[15] Applicant avers that it is clear that first respondent is attempting to introduce fraudulent evidence, which is inadmissible.

[16] In reply hereto first respondent denies that the zoning certificate is fraudulent or that Mr. Woldegzibhere acted fraudulently in any manner in obtaining it.  He refers to a confirmatory affidavit attested to by his sister Ms. Temesgen.  In this affidavit Ms. Temesgen states that on 26 April 2018 she attended upon third respondent’s offices in Queenstown. She proceeds to state as follows:

“I approached a man who was sitting at the front desk at the offices and advised him that I needed a zoning certificate for a property in Queenstown.  He asked me for the street address and the Erf number which I gave him.  I was instructed to return later in the day to fetch the zoning certificate.  I then left and returned later in the afternoon, I was handed a letter by the gentleman who was at the front desk, it was the same gentleman I had spoken to earlier in the day.  The letter that was handed to me was a zoning certificate which is attached to my brother’s supplementary affidavit marked Annexure E.”

[17] In terms of Rule 6(5)(e) the Court may in its discretion permit the filing of further affidavits after the filing of the applicant’s replying affidavit.  It is, however, only in exceptional circumstances that further affidavits will be received.  It is trite that in the exercise of its discretion the Court will have regard to the fundamental consideration that a matter should be adjudicated upon all the facts relevant to the issues in dispute.  Erasmus: Superior Court Practice B1 – 47 and the cases cited therein.  As was stated in Milne v Fabric House 1957 (3) SA 63 (N) at 65:

“It 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 sides.”

[18] The factors that the court would take into their account are enumerated by the learned authors in Erasmus supra at B1 – 48.  See also Porterstraat 9 Eiendomme (Bpk) Ltd v P A Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C) at 617 A – E where the considerations laid down in Mkwanazi v Van der Merwe 1970 (1) SA 609 (A) at 626 A – G are summarized by Davis J as follows:

“(i) The reason why the evidence was not led timeously.

(ii) The degree of materiality of the evidence.

(iii) The possibility that it may have been shaped to “relieve the pinch of the shoe”.

(iv) The balance of prejudice: that is the prejudice to the plaintiff if the application is refused, and the prejudice to the defendant if it is granted.

(v) The stage which the particular litigation has reached. Where judgment has been reserved after all evidence has been heard and, before judgment is delivered, plaintiff asks for leave to lead further evidence, it may well be that he or she will have a greater burden because of factors such as the increased possibility of prejudice to the defendant, the greater need for finality, and the undesirability of a reconsideration of the whole case, and perhaps also the convenience of the court.

(vi) The “healing balm” of an appropriate order as to costs.

(vii) The general need for finality in judicial proceedings.

(viii) The appropriateness, or otherwise, in all the circumstances, of visiting the fault of the attorney upon the head of his client.”

[19] In Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 (SCA) the following was stated at paragraph [10]

“An advantage inherent to application proceedings, even if opposed, is that it can lead to a speedy and efficient adjudication and resolution of the disputes between parties. Unlike actions, in application proceedings the affidavits take the place not only of the pleadings, but also of the essential evidence which would be led at a trial. It is accepted that the affidavits are limited to three sets. It follows thus that great care must be taken to fully set out the case of a party on whose behalf an affidavit is filed. It is therefore not surprising that rule 6(5)(e) provides that further affidavits may only be allowed at the discretion of the court.”

[20] Reference was made at paragraph [12] to the well-known case of James Brown & Hamer (Pty) Ltd (Previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) where at 660 D-H the following was said:

“It is in the interests of the administration of justice that the well-known and well established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the Court: he must both advance his explanation of why the affidavit is out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy nor desirable. In any event, I do not find it necessary to enter upon any recital or evaluation of the various considerations which have guided Provincial Courts in exercising a discretion to admit or reject a late tendered affidavit (see e.g. authorities collated in Zarug v Parvathie, 1962 (3) SA 872 (N)). It is sufficient for the purposes of this appeal to say that, on any approach to the problem, the adequacy or otherwise of the explanation for the late tendering of the affidavit will always be an important factor in the enquiry.”

[21] In the founding affidavit in support of this application Mr. Woldegzibhere sets out what he contends is a reasonable explanation for his failure to have addressed the issue of the zoning certificate in first respondent’s answering affidavit.  It is unfortunately necessary to set out his averments in some detail.  He states that upon receipt of the main application he did not understand what it was about and spoke to Mrs. Birch, a director of second respondent, as well as spending an inordinate amount of time going through the affidavit.

[22] He proceeds to state that “I am originally from Ethiopia and English is not my first language.  I understand most of the words in the affidavit and I did not necessarily understand the context in which they were being used.  I have no schooling whatsoever, I am self-taught.  I taught myself to read and write but I am not very good at it.  I have no legal training whatsoever and I do not understand how the South African legal system works.  The concept of zoning was alien to me and I did not know that the zoning of the area in which the close corporation was trading would have an impact on its business.  I have subsequent to the granting of the postponement consulted with the Town Planner, my attorney and I have been to see the third respondent for assistance.  I now understand the importance of zoning and the effect of zoning and the consequences if the zoning scheme is not adhered to.”

[23] In the light of these averments it is instructive to have regard to the contents of first respondent’s answering affidavit attested to by Mr. Woldegzibhere in the main application.  In this affidavit Mr. Woldegzibhere deals in what can only be described as an extremely literate and articulate manner with the allegations contained in the founding affidavit of the main application.  He takes issue with the citation of first respondent, pointing out that it is in fact a close corporation and stating that “it is a juristic entity with juristic personality upon registration in terms of the provisions [of the Close Corporations Act 69 of 1984] a juristic person and continues, subject to provisions of this Act, to exist as a juristic person not withstanding changes in its membership, or its conversion to a company in terms of Schedule 2 of the Companies Act, until it is deregistered or dissolved, it shall have the capacity and powers of a natural person of full capacity insofar as a juristic person is capable of having such capacity or of exercising such powers.  In the light hereof, I wish to state that applicant has wrongly cited me as party to this application.”

[24] Dealing with the contents of the founding affidavit attested to by Ms. Hansen, in her capacity as a trustee of applicant he states as follows:

“I do take issue with the fact that she requests this honourable court to admit all hearsay evidence relied upon by the applicant.  As a general rule all hearsay evidence is inadmissible.  The common law provides that such evidence may be provisionally admitted provided the person upon whose credibility the probative value of such evidence depends comes and testifies or in this case or produces an affidavit.  Applicant has failed to do this.  Thus in terms of the common law this evidence cannot be admitted.”

[25] Mr. Woldegzibhere then proceeds to deal with the provisions of section 3(1) of the Law of Evidence Amendment Act 45 of 1988 relating to the admission of hearsay evidence.  He states that applicant has not complied with the relevant statutory provisions and has failed to provide reasons why the court should admit such hearsay evidence in the absence of any corroboration by “affidavits of the persons upon whom the credibility of the evidence depends.”

[26] He then states further that third respondent is an Organ of State and that applicant had failed to comply with the provisions of the Institution of Legal Proceedings against certain Organs of State Act 14 of 2002 as well as the State Liability Act 20 of 1957.  He states also that in terms of the Uniform Rules of Court “when an application is brought against an Organ of State, a longer period of notice is required.  In this regard I refer this honourable Court to the provisions of Rule 6(13).”

[27] He then deals at considerable length with the first respondent’s liquor licence and sets out in detail the documents which an applicant for such a licence was required to submit to the Provincial Liquor Board, including “a zoning certificate by the local authorities in which jurisdiction the premises lie, stating that the intended use of the property is in order.”  He states that when he applied for the liquor licence all the requisite documents were furnished to the Board.  He states that “applicant has failed to cite the Liquor Board and as such applicant agrees that the liquor licence was duly granted lawfully and after careful consideration of all the relevant factors including the demarcation and zoning of the Town Planning Scheme.”

[28] He also deals at considerable and articulate length with applicant’s allegations concerning the alleged noise emanating from first respondent’s tavern.  Having done so he proceeds to state as follows:

“I submit that applicant is applying for an interdict and as such must establish certain factors before being entitled to an interdict.  In order to obtain an interdict applicant must show the following that an injury or damage is actually committed or that there is a reasonable apprehension of an injury or harm.  It is my respectful submission that the applicant has not succeeded in proving that it, should the situation continue as alleged, it will be suffering irreparable harm.”

[29] He then proceeds also to deal with the “test for nuisance” in considerable detail and submits that applicant has failed to prove its allegations in this regard.

[30] I have set out these averments in some detail because, in my view, they comprehensively give the lie to Mr. Woldegzibhere’s averments in the supplementary affidavits concerning his standard of literacy, his lack of legal knowledge, and his lack of any genuine comprehension of the contents of applicant’s founding affidavit.  It was suggested during the course of argument that Mr. Woldegzibhere may have received assistance from someone, either an attorney or someone with legal knowledge, in drafting first respondent’s founding affidavit.  If he did, he does not say so but instead, with a complete lack of candour, alleges that because of his deficient knowledge of English and the legal system he was unaware of the import of the applicant’s averments concerning the zoning certificate.  This despite his reference, when dealing with first respondent’s liquor licence, to the requirement of the requisite zoning certificate.  In my view, in the circumstances, his averments concerning his lack of understanding of the issues relating to zoning are disingenuous in the extreme, if not dishonest.

[31] It is this light that the production of first respondent’s alleged zoning certificate, Annexure E, must be seen.

[32] Mr. Cole submitted that if there was a clear indication that the further affidavit was tainted by fraud, or features designed clearly to mislead the court, any further affidavits should be rejected out of hand.  He submitted that it was telling that in his affidavit in the main application for a postponement which was deposed to on 17 May 2018 no reference was made by first respondent to the zoning certificate which it had allegedly obtained on 26 April, Annexure E.  He submitted that if the representatives of first respondent had consulted with their attorney on 12 and 13 May 2018 as alleged by them they would unquestionably have made the zoning certificate available to their attorney on that date as they had been in possession of it for almost two weeks and it specifically dealt with the trading activity they were involved in.  He submitted therefore that the failure of any representative of first respondent to make any mention of the existence of the zoning certificate Exhibit E at the time of the postponement application was an overwhelming indication that the document did not exist at that time but was later manufactured to counter applicant’s averments in respect of Annexure JA6. 

[33] Mr. Cole submitted that in the light of this, considered together with the affidavit of Ms. Boucher, there is overwhelming proof that Annexure E is in fact a fraudulent document designed to mislead the court.  In this regard both Ms. Beard, who appeared for first respondent, and Mr. Knott, who appeared for second respondent, submitted that Ms. Boucher did not state under oath that the zoning certificate was fraudulent or that first respondent had fraudulently obtained it and that applicant had therefore failed to establish that the certificate was indeed fraudulent. 

[34] In my view this submission cannot be upheld.  It is quite clear from a reading of the affidavit by Ms. Boucher together with her letter that she alleges that the zoning certificate is fraudulent.  In this regard the affidavit of first respondent’s sister, Ms. Temesgen, does not, in my view, take the matter any further.  No attempt has been made by first respondent to identify the anonymous man who was sitting at the front desk when Ms. Temesgen allegedly visited the offices of third respondent.  Nor has any attempt been made by the respondents to investigate the circumstances in which the certificate allegedly came to be issued by Ms. Boucher.  It would have been a simple matter to have obtained an affidavit from the anonymous man at the front desk as to how Annexure E came to be produced as well as an affidavit from the true author of Annexure E if such document was genuine.  The failure by first respondent to have done so, in my view, speaks volumes.  In effect, therefore, first respondent’s response to the allegations of fraud amounts to nothing more than a bare denial.

[35] Furthermore, the wording of Annexure E with its reference to the strange entities called a “trading tarven” and a “pubic garage” makes it clear in my view that the zoning certificate was, as alleged by Mr. Cole, “doctored” to introduce a “trading tarven” as a permitted use.

[36] In all these circumstances it is abundantly clear in my view that Annexure E is a fraudulent document and that first respondent seeks to introduce it in order to counter the true zoning certificate (JA6) and thereby relieve the “pinch of the shoe”.  In my view this cannot be countenanced.

[37] I turn then to consider the allegations concerning the use of the premises as a restaurant as opposed to a “trading tarven”.  In this regard both Mr. Woldegzibhere and Mrs. Birch aver in their proposed supplementary affidavits that the fact that the business was referred to and advertised as a tavern does not make it a tavern if in fact it is a restaurant as defined in the very Zoning Scheme Regulations relied upon by applicant.

[38] It must be remembered that in its proposed supplementary affidavit it was made clear by first respondent that there was no desire on its part to amend its answering affidavit or to withdraw any averment which had been made therein.  As was submitted by Mr. Cole this is significant in the light of the description of the business and premises throughout the answering affidavits as a tavern a description which is borne out by photographs JA43 of the exterior of the building with its large sign advertising it as “Thousand 1000 Tavern” and equally large signs emblazoned on the walls surrounding the property advertising Amstel Lager.  First respondent admitted therein that the property was being used as a tavern; that the tavern had entered into a lease agreement with second respondent for the lease of sections of the property; that the tavern was unaware of the zoning of the property; and that police had confiscated the music centre and speakers of the tavern.  This calls to mind the well-known adage concerning the identification of a duck.

[39] The allegations concerning the use of the premises as a restaurant constitute entirely new matter and respondents seek thereby to introduce an entirely new defence, one not foreshadowed in the slightest in the answering affidavits.  The only explanation proffered by first respondent in this regard is that the definition of “tavern” and “restaurant” in the Zoning Scheme Regulations are very similar.  First respondent’s contention appears to be that because of this similarity the premises, although used as a restaurant, were mistakenly referred to as a tavern.

[40] In my view this explanation comes nowhere near to explaining the contradiction between the allegations in the answering affidavit and the allegations which respondents now seek to introduce.  As I have pointed out above, Mr. Woldegzibhere in the answering affidavit dealt at considerable length with various legal issues.  It is inconceivable in my view that if the premises were being used as a restaurant he would not have said so at that stage.  The only plausible inference to be drawn in all these circumstances in my view is that first respondent, recognizing the difficulty in which it now finds itself, is attempting to avoid the consequences of the averments made by Mr. Woldegzibhere in the answering affidavit.

[41] It was argued by Ms. Beard and also by Mr. Knott that should the further affidavits not be allowed both respondents would suffer considerable prejudice.  But it is the respondents’ own culpable remissness which caused the alleged facts not to be put before the court in the answering affidavits.  See Bangtoo Brothers v National Transport Commission 1973 (4) SA 667 (N).  See too Gibb v De Toit and Others (2) P.H. 1938 (1) F83 where Schreiner J in a similar application held:

“That if the affidavits were allowed, a wholly fresh issue would be raised which would involve the filing of further affidavits by Applicant.”

The learned Judge held that the affidavits should not be admitted “at that late stage” and the application was refused.

[42] It is clear from the contents of the applicant’s opposing affidavits to this application that the allegations concerning the use of the premises as a restaurant are hotly disputed.  The effect of allowing the introduction of the supplementary affidavits at this late stage, nearly six months after the filing of the respondent’s answering affidavits, would in all probability in light of the dispute lead as a matter of necessity to the matter being referred to oral evidence.  This would occasion further undue delay in the matter which has already been delayed in consequence of the application for a postponement by first and second respondents and in consequence of the present application.  This would clearly be severely prejudicial to applicant.  Compare Hano’s case supra at paragraphs [10] and [14].

[43] In my view further the allegations by first and second respondents concerning the use of the premises as a restaurant must also be seen in the light of the fraudulent allegations concerning Annexure E.  The first respondent’s attempt to mislead the court through the production of a forged and fraudulent document must cast considerable doubt on the credibility of the allegations suddenly raised at a belated stage concerning the use of the premises as a restaurant.  I bear in mind the fundamental consideration that a matter should be adjudicated upon all the relevant facts.  Where the affidavits which a party seeks to introduce are tainted by fraud, however, the court will not countenance the introduction of such new matter.

[44] Mr. Knott submitted that second respondent was in a different position to first respondent because it had not attempted to rely upon the forged zoning certificate.  In my view there is no merit in this submission.  In its answering affidavits it too made no mention of the premises being used as a restaurant and throughout described the business conducted by first respondent as being a tavern.  Second respondent’s case must stand or fall together with that of first respondent.

[45] Taking into account the above circumstances I am of the view in the exercise of my discretion that the application to file further affidavits must be dismissed.  I am also satisfied having regard to the attempt to mislead the court that the costs of the application should be on the scale as between attorney and client.  Accordingly the following order will issue:

1. The application for leave to file further affidavits is dismissed.

2. First and second respondents are ordered jointly and severally, the one paying the other to be absolved, to pay the costs of the application on the scale as between attorney and client.

 

 

_________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

 

 

Appearing on behalf of Applicant: Adv. S. Cole

Instructed by: Wheeldon Rushmere and Cole, Mr. Brody

Appearing on behalf of First Respondent: Adv. M. Beard

Instructed by: Huxtable Attorneys, Mr. Huxtable

Appearing on behalf of Second Respondent: Adv. J. Knott

Instructed by: Cloete & Company, Mr. Cloete

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