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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2019/26626

In the matter between:

PRETORIA MUSLIM TRUST                                                                              1^st Applicant

MOHAMMED MAHIERTAYOB N.O.                                                                  2^nd Applicant

MOHAMMED ISMAIL HAZARVI N.O.                                                                3^rd Applicant

MANZOOR HUSSAIN ALLIMIA N.O.                                                                  4^th Applicant

(In their capacities as the duly appointed

Arbitrators of the Pretoria Muslim Trust)

and

RIDWAAN AYOB                                                                                                 Respondent

 

JUDGMENT

 

MOKOSE J

[1] The applicants launched this application on an urgent basis which application was scheduled to be heard on 30 April 2019. Having received the answering affidavit, the applicants elected not to proceed with the matter on an urgent basis and requested a special allocation therefor. The matter is now before this court as a special allocation.

[2] At the commencement of the matter, the applicant objected to the late filing of the respondent's heads of argument. No application for condonation of the late filing of the heads of argument had been made by the respondent. Having heard argument by the parties as to whether the heads should be allowed, the court came to the conclusion that there would be no prejudice on the part of the applicant and as such, the heads of argument for the respondent was allowed.

[3] The applicants seek an order, inter alia, for the following relief:

(i) that the respondent be interdicted from interfering in the business and affairs of the first applicant;

(ii) that the respondent be ordered to hand over all financial statements, minutes of meetings, records relating to the first applicant within 2 days of the order;

(iii) that the respondent be ordered to provide the applicant within 10 of the order all information relating to finances and financial statements for the period 1 March 2011 to 31 March 2019;

(iv) that the respondent be ordered within 3 days to assist the applicants account to the applicants regarding all actions and decisions taken by the respondent for the period 1 March 2011 to 31 March 2019.

[4] The first applicant (hereinafter referred to as “the trust") is a public benefit organization which is open to people of the Islamic faith and who are resident in Pretoria. The respondent was appointed as a manager and runs the Management committee which is accountable to the trust board. It also has a responsibility to manage certain sub-committees including the education committee ("known as Edcom").

[5] A dispute arose between Edcom and the Management committee resulting in a memorandum being addressed to the trustees setting out alleged violations occurring within the trust. The applicants contend that the memorandum of concern led to a special meeting being held on 26 November 2018 where a resolution was adopted to commence arbitration proceedings. The second, third and fourth applicants were appointed arbitrators at such meeting.

[6] The applicants allege that the concerns which were raised by Edcom included the failure to provide annual financial statements for a period of 7 years, the inability of the respondent to write up and provide minutes of meetings and the failure of the respondent to convene elections for 30 years. The co-arbitrators ruled in favour of Edcom in the arbitration process.

[7] The applicants contend that the respondent continuously obstructed the functions of the arbitrators to properly investigate the concerns and to facilitate the financial process resolution which had been taken. At a meeting which was held on 9 April 2019 which was called by the Trust for the appointment of a new chairman and management of the trust, the respondent who had been given notice of such meeting to account for his actions and decisions, failed to attend the meeting. A resolution was then adopted by the members present that the respondent steps down from the position he held and that Mr Moulana Mukadam be appointed in his place as chairman of the management of the Trust.

[8] The applicants are of the view that the respondent is not a fit and proper person to hold the position of the chairman of the management of the Trust.

[9] In his answering affidavit the respondent alleged that disputes of facts were known to the applicants prior to the launch of the application. This included the authority of the arbitrators to litigate on behalf of the Trust as also whether a new constitution had been adopted by the membership of the Trust. The cause of action was also challenged in the answering affidavit by the respondent.

[10] Rule 6(5)(g) of the Uniform Rules of court deals with the situation where an application cannot properly be decided on affidavit. The rule provides that if the material facts are in dispute and there is no request for the hearing of oral evidence, a final order will only be granted on notice of motion if the facts as stated by the respondent together with the facts alleged by the applicant that are admitted by the respondent, justify an order.[1]

[11] A fact is said to be in dispute when it is alleged by one party and denied by the other, and by both with some show of reason. A mere allegation, without evidence, or against the evidence cannot create a dispute within the meaning of the law. A real and genuine dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.

[12] The test applicable in determining a dispute of fact in motion proceedings was described in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[2] by Corbett JA at 634H - 6341 as follows:

"...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 affidavit which have been admitted by the respondents justify such an order. The power of the court togiven such final relief on the papers before it is, however, not confined to such asituation. In certain instances, the denial of by respondent of the fact alleged by the applicant may not be such denial as to raise a real, genuine orbona fide dispute off act."

[13] In motion proceedings the affidavits constitute both pleadings and evidence and the issues and averments in support of the parties' case must appear clearly therefrom. It is trite that the applicant in motion proceedings must make out his or her case in the founding affidavit. A litigant should not be allowed to try and make out a case in the replying affidavit.

[14] A judge hearing the application will be faced with the following choices which must be made in a judicious manner:

(i) dismiss the application if the applicant foresaw or ought reasonably to have foreseen, before initiation of proceedings that a dispute of fact would arise;

(ii) refer the oral dispute to oral evidence if it can be disposed of speedily and without any other issues in the matter;

(iii) refer the entire matter for trial and order that the notice of motion stand as a simple summons, the founding affidavit stand as the declaration and the answering affidavit stand as the plea and make any other order relating to the conduct of the proceedings as a trial.

[15] As far back as 1949 in the matter of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd[3] the courts have held that the crucial question is whether there is a real dispute of fact. Disputes of fact arise when-

(i) the respondent denies allegations made in the applicant's affidavit and further produces positive evidence to the contrary in the answering affidavit;

(ii) the respondent admits the allegations in the applicant's founding affidavit but alleges additional facts and evidence which the applicant disputes;

(iii) the respondent alleges that he has no knowledge of the averments in the applicant's affidavit and puts him to the proof thereof;

(iv) the respondent alleges that he can lead no evidence to dispute the truth of the applicant's averments and puts the applicant to the proof thereof by oral evidence and subject to cross-examination.

[16] It is evident from the papers before this court and the submissions made on behalf of the parties that the disputes of fact are numerous and manifest. The correspondence between the parties also reveals the said disputes of fact.

[17] After a thorough reading of the papers and hearing the submissions of the respective parties, I am of the considered view that there is indeed a material dispute of fact which the applicants should have foreseen especially in light of the correspondence which had been exchanged between their attorneys and the respondent's attorneys of record before the litigation was commenced on motion proceedings. Accordingly, the applicant should not have proceeded on application proceedings but proceeded to trial.

[18] I am also of the view that the applicants have abused the court process to achieve their own ends. Evidence of same is also seen in the lack of a cause of action as also the unilateral replacement by the second applicant of Nazir Noor Muhammad N.O, the third applicant when he was not supportive of the application on hand.

[19] Counsel for the respondent made submissions to the court to award punitive costs against the second and fourth applicants in view of the spurious application which was fraught with difficulties and disputes of fact.

[20] The normal rule pertaining to an award of costs is that costs should follow the result. The court may, in certain circumstances award punitive costs to show its displeasure for the way the litigation was conducted. The legal principles governing costs de bonis propriis is set out in Van Loggenrenberg et al Erasmus Superior Court Practice. The general rule is that a person suing or defending in a representative capacity may be ordered to pay costs de bonis propriis if there is want of bona fide on his part or if he acted negligently or unreasonably.

[21] I am of the view that the applicants were aware of the disputes of fact and lacked bona fides. Accordingly, the following order is granted:

The application is dismissed with costs occasioned by the use of two counsel against the second and fourth applicants de bonis propriis on the scale as between attorney and client.

 

 

____________________

MOKOSE J

Judge of the High Court

of South Africa Gauteng

Division, Pretoria

 

For the Applicant:

Adv SJ van Rensburg SC instructed

by Aphane Attorneys

For the Respondent:

Adv NPG Redman SC

Adv B Bodhania instructed by

Mayet Vittee Inc

Date of Hearing:                 7 November 2019

Date of judgement:             21 November 2019

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