IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: 27576/2010

In the matter between:

CHARL DOMINIC COETZEE 						Applicant
and
HERMANUS BOSNIAN GRIESSEL 						Respondent

Heard: 11 August 2011 
Court: Acting Judge J I Cloete 
Delivered: 24 August 2011

JUDGMENT DATED THIS WEDNESDAY. 24 AUGUST 2011

[2] The respondent is unrepresented and opposes the granting of a final interdict against him.

Background

[4] During the course of such representation the applicant and respondent consulted with a firm of attorneys in Italy. On their return to South Africa the respondent refused to make payment of a portion of the fees claimed in respect of the applicant's services, following which the firm instituted provisional sentence proceedings against the respondent and a third party. The provisional sentence proceedings were settled at some point after the granting of the interim interdict.

[5] On 19 December 2010 at 14h58. and after institution of the provisional sentence proceedings, the respondent sent an sms message to the applicant which read as follows:

[6] On the following day (20 December 2010) the respondent sent more sms messages to the applicant over the space of approximately an hour. These read as follows:
•	

•	

•	

•	

[7] At midday on 20 December 2010 the applicant laid a charge of intimidation against the respondent. He also attempted, on the advice of a police official, to obtain a protection order against the respondent in terms of the Domestic Violence Act No 116 of 1998. At 15h00 that day he was correctly advised by a magistrate that a protection order against the respondent was not competent in terms of that Act and that he should seek a civil interdict against the respondent.

[8]     The applicant obtained the interim interdict later that day

[9] Subsequent to the granting of the interim interdict, the applicant has withdrawn the criminal charge against the respondent.

[10] The respondent, although not represented in these proceedings, was represented by both counsel and an attorney in the provisional sentence proceedings.

[16] The applicant vehemently denies the respondent's allegations. He contends that the respondents conduct, as evidenced by the sms messages and the contents of his answering affidavit, is erratic and irrational. A strong possibility exists that the respondent may engage in violent behaviour towards him. He was fearful of the respondent when he brought the application and is still fearful of him. He requests that the order be made final in order to provide him with ongoing protection against the respondent

[18] A final interdict is granted in order to secure a permanent cessation of an unlawful course of conduct or state of affairs. For the grant of such an order there are three requirements, all of which must be present:
18.1. A clear right, which the applicant has to prove on a balance of probabilities:
18.2. An act of interference, which is an act constituting an invasion of another's right; and
18.3. Proof that there is no other satisfactory remedy available to the applicant. 

[19] An act of interference implies an injury actually committed or reasonably apprehended. A reasonable apprehension of injury is one which a reasonable man might entertain on being faced with certain facts. An applicant for an interdict is not required to establish that, on a balance of probabilities flowing from the undisputed facts, injury will follow; he only has to show that it is reasonable to apprehend that injury will result. The test for apprehension is an objective one. This means that, on the facts presented to the court, it must decide whether there is any basis for the entertainment of a reasonable apprehension by the applicant. 

[20]   In the present matter, the applicant has established a clear right. This right is enshrined in s 12(1) of the Constitution which provides that:

'12(1) Everyone has the right to freedom and security of the person, which includes the right -

…...........
(c) to be free from all forms of violence from either public or private sources; 
…...........
(e) not to be treated or punished in a cruel, inhuman or degrading way.'

[21]   This right has also been codified and acknowledged in s 1(1) of the Intimidation Act, No 72 of 1982 which provides as follows: 
'(1) Any person who-

(i) fears for his own safety or the safety of his property or the security of his livelihood, or the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person: and
(ii) ...
[Sub-para, (ii) deleted by s 6 of Act 126 of 1992.]
shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.'

[23] I am satisfied that the applicant has no other satisfactory remedy available to him.

[24]   In all the circumstances, the applicant is entitled to a final interdict.

[25] The applicant's counsel informed me at the commencement of the proceedings that the applicant had tendered to waive costs if the respondent consented to the final relief sought. This tender was rejected by the respondent. As the applicant has been successful in the relief claimed, it follows that the respondent should effect payment of his costs.

[26]   I accordingly make the following order;

1.1    threatening the applicant in any manner or form;
1.2. approaching within 50 (fifty) metres of the applicant;

1.4. intimidating the applicant in any manner or form;
1.5. physically harming the applicant.

2.     The respondent shall effect payment of costs of this application on a scale as between party and party as taxed or agreed.

J ICLOETE
ACTING JUDGE OF THE HIGH COURT