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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION – PORT ELIZABETH

Not Reportable

Case No: 2842/14

3449/14

3450/14

In the matter between:

JACQUES GOUWS...................................................................................................................Applicant

and

CRAIG TODD DE LANGE...................................................................................................Respondent

CAREL DU PREEZ................................................................................................................Respondent

JUDGMENT

REVELAS J

[1] The applicant made application to this court for an interdict against the respondent regarding certain alleged unlawful conduct of the respondent.  It was the second application of this kind that the applicant has brought against the respondent in this year.  The matter was argued on the extended return day of a rule nisi, issued on 3 October 2014.

[2] The respondent has also brought two separate applications for damages against the applicant and his attorneys of record.  He respectively claims R850 000.00 and R1800 000.00 as damages from them.

[3] All three applications are brought under different case numbers.  At my suggestion it was agreed that these matters be consolidated and heard as one matter, for practical purposes.  The respondent appears in person.

[4] It is the case for the applicant that over a period of approximately eighteen months the respondent has engaged in a concerted campaign to harass and defame him, by writing letters to various individuals and entities, making unfounded allegations about him.  The letters are attached to the founding affidavit and their contents are not in dispute.

[5] However, subsequent to the application for an interdict was launched, the respondent allegedly assaulted the applicant, resulting in the granting of an interim interdict by Chetty J on 3 October 2013.  The applicant captured the alleged assault on video which formed part of the evidence presented.  The applicant has also instituted an action for damages for defamation and assault against the respondent.

[6] The applicant also brought an application for setting aside the respondents replying affidavit as an irregular step in terms of Rule 30(2) of the Uniform Rules of Court.  In terms of the Rules of court a respondent is not entitled to file a reply to an applicant’s replying affidavit, unless it is permitted on application to the court, as a supplementary affidavit.  Since the applicant appeared in person, I regarded his “replying affidavit” as part of the evidence in the application before me.

[7] The application in terms of Rule 30(2) was opposed by the respondent who filed yet another affidavit, in support of his opposition to this application on 21 November 2011.  The affidavit contains several allegations which have no bearing on the applicant’s application but the allegations made therein are relevant for purposes of the credibility findings which have to be made.

Background

[8] The applicant and the respondent are neighbours who live next-door to one another in a townhouse complex named Neapolis in South End, Port Elizabeth (“the complex”).  The applicant is a self-employed man aged 29 years.  The respondent is a pensioner and a former policeman in his late forties on early retirement.  The respondent describes himself as a person with health problems and has produced medical certificates and a computer disc containing x-rays of his right leg and ankle as well as right hand. He suffers from inter alia, glandular fever.

[9] The disc with the X-rays was accompanied by explanatory notes by Dr van Jaarsveld and they read as follows:

Right Hand: “A cortical thickening in relation to one of the metacarpals, “suggesting previous injury (? Bony union of previous fracture) was noted”.

Right Leg: “Old united fractures; distal tibia and fibular diaphyses with residual deformity.  Intramedullary pin present within tibia.  Knee joint appears normal. . . . The distal end of the intramedullary pin positioned just below the cortex of the distal tibia”.

[10] According to Dr Fourie, the respondent has had “many surgical procedures over the past eleven years” to wit.

• “Hernia repair

• Cyst removal

• Hydrocod repair

• Titanium rod placed in right leg

His health has suffered as a result and any physical assault can be dangerous”.

[11] According to the applicant, the respondent commenced with a vendetta against him in May 2014.  The respondent commenced with writing letters about the applicant on 15 May 2014 to the managing agents of the complex, named “Bellbuoy”.

[12] In the aforesaid letter, the applicant is accused of criminal abuse and victimization of two other residents in the complex and he suggests that they be sued for R180 000.00.  There is also a suggestion that the applicant be handed over to the South African Revenue Services (“SARS”).  On the same day the respondent wrote another letter to Bellbuoy and the trustees of the complex expanding on the aforesaid complaints and referring to the applicant as a “lowlife scumbug”.  He also accused the applicant of being sadistic, spiteful, a bully, a stalker, a person who harasses women and one who manipulates people.  It is not clear to me what the complaint was about.  There is also liberal use of swear words (“the f-word”) in this letter.

[13] The next day the respondent wrote to Bellbuoy again.  He is still aggrieved by the applicant’s interference with women who are “romantically involved”.  The applicant was also called a “sissy faggart (sic) moffie” a cowardly moffie that he “has absolutely no respect for women” and that he publicly denounces the applicant as “a disgrace” to all and “a shameless person”.  He also threatens to sue the applicant for R180 000.00. 

[14] The respondent also told Bellbuoy that “three years of my life has been affected because of du Preez [“the applicant’s”] strange infatuation with women”.  He concluded his letter by stating that the applicant “is a misfit in this complex.  He proved himself to be low-class trash.  From now on he will be treated as such.  Biggest coward I have ever come across.  Bloody sexless moffie”.

[15] On 18 May 2014, Bellbuoy’s response to the letters from the respondent and their contents was that they have never received any complaints about the applicant.  They added that thus found him to be helpful and willing to assist the body corporate in any way he can.  They also advised that the applicant had been appointed as a trustee.

[16] On 19 May and 22 May 2014 the applicant and respondent respectively filed for protection orders in terms of section 3 (2) of the Protection from Harassment Act, 17 of 2011.

[17] The applicant sought to prohibit the respondent from writing letters about him to others and coming within 2 meters of his house, property or vehicle.

[18] The respondent sought a protection order against the applicant to prohibit him from pointing a fire arm at him or intimidating, harassing or abusing him.  He also sought to prohibit the applicant from approaching him or speaking to him, and also from conducting business on his (the respondent’s) property).

[19] In response to another letter of complaint by the respondent, Bellbuoy advised that according to their investigations the applicant was not conducting a business from his house.  The applicant denied all allegations levelled against him in his founding affidavit.  He stated that he obtained the protection order on the advice of his attorney.  The applicant alleged that the respondent had the habit of standing at his unit taking notes and also stands nexto the respondent’s vehicle examining his number plates.

[20] Although he cannot prove it, the applicant said he suspected that his flat tyres “on most mornings” are attributable to the actions of the respondent.

[21] On 22 May 2014 the applicant’s attorney wrote to the respondent calling upon him to retract the defamatory statements failing which summons would be issued.  In response thereto, the respondent obtained the protection order referred to hereinbefore.

[22] As a result of the respondent’s allegations the applicant’s fire-arm was confiscated by the police.  The confiscation of the fire-arm lead to a mediation conducted by a former colleague of the respondent, Colonel Hawlan.  Both the applicant and the respondent withdrew their protective interdicts in the magistrates’ court.  On 29 May 2014 the respondent in a letter to Bellbuoy and the trustees of the complex retracted all the statements he made about the applicant, also result of the mediation process.

[23] The applicant’s attorneys confirmed the aforesaid settlement in a letter which also formed part of the papers in this application.  The applicant’s fire-arm was returned to him by the police.  He then gave the fire-arm to an arms dealer for safe-keeping.

[24] The respondent wrote another letter to Bellbuoy and the trustees claiming that the applicant made videos of him, that he stalked him and harassed him.  The police also came to investigate.  No criminal case was opened.

[25] In the respondent’s letter he alleges that the applicant had told the police that it was not a crime to take videos of the respondent and that he would continue to stalk and harass the applicant.  He also threatened to publish all his grievances in the Eastern Province Herald “in the public interest”:

He concluded:  “My final word to Mr du Preez is this:  both you and your lawyer go play on the highway”.

[26] The applicant reiterated in his founding affidavit that he had done none of the things the respondent had accused him of and in particular that he discharged his fire-arm in public or shot dassies in the complex, as alleged by the respondent.

[27] The applicant’s attorneys wrote to the respondent once again, pointing out that he was in breach of the settlement agreement by making defamatory statements.  In response, the respondent wrote a letter on 27 June 2014 to the applicant’s attorney, after accusing the applicant of stealing trust funds from the body corporate.  He accused the applicant’s attorney of unethical behaviour, intimidation and victimization.  He also accused Colonel Howland (the mediator) and another woman (presumably a candidate attorney at the applicant’s office) of the same behaviour towards him.

[28] He threatened to go the local newspaper with information regarding other cases, which he alluded to, would embarrass the applicant’s attorney.  He also said he would not “allow either of [them] to share a plate of food with [his] dogs”.  On 30 June 2014 he addressed a letter of demand to the applicant’s attorney for payment of R1 million rand before Friday 4 July 2014.

[29] On 30 June 2014, his focus now clearly on the applicant’s attorney, the respondent wrote another letter advising the applicant’s attorney that he would be giving final instructions to his own lawyer by noon.  He stated that the attorney or his firm has caused him to suffer abuse and other distresses.  He accused the applicant’s attorney and his firm of unethical conduct corruption, dishonestly, behaving like animals.  He also said the applicant and his attorney ranked “amongst the most insolent, arrogant and stupid people”.

[30] The respondent threatened to report the applicant’s attorney to the Law Society.  The letter is ended with the following statement by the respondent:

“Warning: “Never ever refer to me as a fabricator or a manipulator again.  I will kick your ass in court”.

The aforesaid was the last letter written by the respondent.

[31] The applicant felt that it was nonetheless necessary to seek a final interdict against the respondent.  He alleged that the respondent constantly stared into his unit or at the applicant taking notes and his car tyres are often deflated.  The applicant stated that although there is no truth in the allegations levelled against him by the respondent, people avoid him because persons associated with him also have to endure attacks on them, such as his attorney.

[32] The applicant’s attorney also deposed to an affidavit to state that he personally did not deal with the respondent’s divorce as alleged.  It was dealt with by Michael Ruben Burmeister a previous director of the firm Burmeister, de Lange.  The respondent was legally represented in opposing the relief sought by the applicant.  In his answering affidavit he emphasised that this was a matter that could be settled.

[33] The respondent denied that he had any psychological problems as alleged by the applicant, but admitted that he was medically boarded due to post traumatic stress syndrome associated with his activities as a policeman.

[34] The respondent’s case is that he lived in peace in the complex for many years until May 2014.  The respondent does not dispute that he wrote any of the letters but stated that he was provoked by the applicant.  He expressed regret and apologized for his language.

[35] He also accused the applicant of insulting him.  This allegedly occurred when he complained about raised levies at a meeting with the managing agent.  He alleges the applicant had confronted him with a video camera, pushed him, and called him an “f…ing anorexic” and told him to “f…ing take his tablets and go to sleep”.

[36] The respondent also raised the question of the applicant’s alleged business activities which the applicant continues with, despite his complaints to the Body Corporate of which the complainant is a trustee.

[37] The respondent disputed that the applicant’s fire-arm was confiscated.  He alleged that he is still in possession of it and had threatened him (the respondent) more than once with it.  He furthermore disputed the applicant’s contention that the police arrived merely to humour the respondent.  The respondent viewed the applicant’s persistence with the present application as bullying and humiliating him. He believed that the settlement proposal attached to his answering affidavit would resolve matters. 

[38] The settlement proposal is contained in a letter written by his erstwhile attorneys of record and is in the following terms (briefly summarized):

Both parties are to be interdicted from:

• communicating with each other, save through an attorney;

• approaching each others’ property or person within two meters; 

• the parties should also prohibited from taking photographs or video recordings of each other, prohibiting visitors and threatening each other or their families, preventing entry or instructing third parties to do the things sought to be prohibited;

• Each party should pay his own costs.

[39]  During argument the respondent reiterated that he should not have to pay any costs because the matter could have been settled according to the proposal. However, the respondent has accused his erstwhile attorney (who drafted the proposed settlement) of unethical conduct.  The respondent alleged that she “took instructions” from the applicant attorney.

The Second (Urgent) Application

[40] The aforesaid proposal was rejected out of hand on the basis that the applicant did not agree that he was not guilty of any of the conduct sought to be prohibited in the proposal.  On 3 October 2014, the applicant brought a second application on an urgent basis, seeking an interim interdicting the respondent from:

(i) Communicating with him, other than through his attorney;

(ii) Approaching him within five meters of the applicant his vehicle, or his residence;

(iii) Interdicting him from damaging the applicant’s property.

[41] The applicant stated that this second application was necessitated because the respondent allegedly attacked him on 29 September 2014.  According to the applicant, the respondent had accosted him on this day accusing him of shining his car lights into the respondent’s unit.  (The applicant explained that upon entering the complex with a vehicle after dark, ones gear lights will inevitably shine on the respondent’s unit for a second or two).  He stated that he ignored the respondent, but that evening on six occasions someone knocked on his door and ran away.  He suspected it was the respondent because a person ran away each time towards the respondent’s unit (number 11).

[42] The respondent denied that he was the unidentified person running away.  In support thereof he referred me to the X-rays in question and submitted that because of the medullar pin in his leg and his other injuries, he was unable to run. 

[43] The applicant alleged that the following day, when he arrived home and parked his car, the respondent appeared at his window and threatened him stating that he would assault him if his lights shone on his unit again.

[44] The respondent thereafter stormed the car and hit him on the right of his forehead.  Because he was seated in his car he could not retaliate.  The applicant stated that his head was bleeding from the assault on him.  He alleged that the respondent had damaged his vehicle in the process.  The applicant went to see a doctor for his injuries (a medical report was attached) and laid criminal charges of malicious injury to property at the Humewood Police Station under case number CAS 627/09/2014.

[45]  The incident was video recorded by the applicant on his cellphone.  Attached to his second founding affidavit, was a copy of the invoice in respect of the necessary repairs to his vehicle as a result of the damage to it, allegedly caused by the respondent.  The invoice is dated 1 October 2014 (a day after the incident) and it gives the total cost of the repairs as R20 005.02.  He alleged the respondent dented the vehicle door and damaged other parts of the vehicle.

[46]  The respondent denied the incident and stated in his answering affidavit that he has blinds over his windows and therefore the headlights of the vehicles do not bother him.  He disputed that he ever assaulted the applicant or damaged his vehicle.  He stated that the applicant’s allegations in this regard were a “fabrication”.  He also submitted that due to his ill health and the pin in his leg he was not capable of the conduct described by the applicant.

[47]  Just prior to the alleged assault the respondent had written to the applicant’s attorney.  He wrote, inter alia, that he was “not just going to personally f.... you up.  I am going to send you to jail – you f...ing rubbish!!”  The applicant pointed out that the respondent filed his answering affidavit on the same day as the alleged assault perpetrated on him.  He feared further retaliation. 

[48] Chetty J issued a rule nisi, returnable on 14 October 2014, issuing an interim interdict against the respondent from:

(1) Assaulting the respondent;

(2) Communicating with him;

(3) Approaching him within five meters;

(4) Damaging the applicant’s property.

The applicant was also granted leave to approach the court on an urgent basis, if necessary, in the event of the respondent acting in breach of the order.

[49] The respondents answering affidavit was filed on 13 October 2014.  On 14 October 2014, the return day of the rule nisi issued by Chetty J, the matter was postponed to 27 November 2014, presumably to afford the applicant an opportunity to file a replying affidavit which was done on 14 November 2014.

[50] In his answering (or opposing) affidavit, the respondent had referred to his medical condition and attached the certificate from Dr Fourie to which I referred earlier in this judgment.  The respondent made the following allegations against the applicant in his affidavit:

[51] He contended that the application was brought because he (the respondent) and others were eye-witnesses to his fire-arm violations, drunken behaviour in the complex and intimidation of others with his fire-arm.  He also accused the applicant of being angry with him for reporting him to SARS.

[52] The respondent alleged that the applicant was incapable of “maintaining integrity or honesty.”  He also listed other sins of the applicant being that the applicant:

• “Is a townhouse bully who has bullied two households out of the complex;

• Has committed fire-arm violation;

• Fights consistently with people twenty or thirty years older than him;

• Moves from woman to woman in the complex who now humour him: because they realize that he only wants to drink and be friends”;

• His ego is that of a megalomaniac”.

[53]  The respondent further alleged also (as in his letters and protection order papers) that the applicant intimidated people with his fire-arm which he carried on his hip.  The respondent also repeatedly referred to the applicant’s alleged infatuation with a Mrs Batty (another resident in the complex) in his letters.  He attached a letter from another attorney to his affidavit which reflects that the applicant is also embroiled in another, separate legal battle with Ms Batty, whom formerly wanted to protect against the applicant.

[54]  The respondent alleges that the applicant has on three occasions, upon seeing him, accelerated his vehicle as if to run him over. In addition, he alleged the applicant started to make videos of him and children in the complex.  The latter activity he stated resulted in criminal charges and the applicant allegedly paid an admission of guilt fine under OB 116/06/2014.

[55]  According to the respondent, the applicant also makes signs at him.  He maintains that he needs protection against the applicant.  In his reply the applicant did not specifically deny these allegations but gave a general denial at the end of his affidavit.  He denied in particular that he committed any fire-arm violations.

[56]  The respondent apologized for swearing at the applicants’ attorney but then in his affidavit called the applicant “a spineless coward” and alleged that the applicant’s integrity is “baseless”.  The respondent also (informally) sought an interdict against the applicant in the following terms:

That the applicant be ordered to desist from:

• “Threatening the applicant.

• Pretending to run the respondent over with his vehicle by accelerating in his presence.

• Videoing the respondent.

• Teasing him”.

He also requested that the applicant be ordered to stay five meters away from him.

[57]  The respondent called for the matter to be struck from the roll.  Attached to his affidavit were copies of the summons issued against him by the applicant, its annexures and the respondent’s plea.

[58]  The respondent filed a further replying affidavit, on 17 November 2014, which was procedurally impermissible, but given that he appeared in person I did not strike it out as stated before.  He denied mostly every allegation made by the applicant in this affidavit.  Some denials are simply made without any grounds For instance, the applicant had stated in his replying affidavit that he had given his gun for safekeeping to Aquila Arms (a gun dealer), after it was confiscated and returned to him.  The respondent refuted this, despite the applicant having presented a receipt from the arms dealer in question attached to his replying affidavit.  I do not find it necessary to repeat what was said in the respondent’s replying affidavit in great detail.

[59]  The nature of some of the allegations in the replying affidavit is very insulting. The respondent describes the applicant as a “bottle fed baby”.  He related that the applicant “was involved with a sophisticated woman way out of his league”.  The relevance of these type of allegations escapes me.

[60] Although the letters and allegations which formed the basis the first application were largely common cause, there were certain allegations of assault (alleged by both parties against each other) and other alleged incidents which remained in dispute.  Then there are the two applications brought by the respondent for damages.  I will deal with the applications at this point.

[61] The first application: The respondent (as applicant) seeks damages against the respondent (Craig de Lange or “de Lange”) in the amount of R1 800 000.00 “as compensation for the financial damages and extreme physical abuse” he alleges he has suffered at the hands of de Lange as well as an order for costs.

[62] In his founding affidavit which spans one page consisting of eight short paragraphs, the respondent contends that during the period 2003 to 2006 de Lange attended to his divorce proceedings in this court.  He also alleges that de Lange caused his property to be attached “through Maud van Zyl Attorneys”.

[63] He contends that de Lange has “orchestrated despicable and loathsome acts” against him, “nurture(s) a festering vendetta” against him and caused him psychological pain as well as financial damages.

[64] No further particularity of a factual nature or otherwise is provided.  The respondent, however, alluded thereto in his affidavits filed in opposition to the applicant’s application.

The Second Application

[65]  The respondent seeks an order directing the respondent, to pay him R850 000.00 as compensation for attacks directed at his reputation and causing him humiliation.  He also seeks a costs order in this application.

[66]  The respondent contends that the applicant has labelled him as “psychiatric” and “insane” and has made these allegations in court proceedings; he has been demeaned in the eyes of his children.  

[67]  The applications brought by the respondent were opposed.

[68]  De Lange denied that he ever had anything to do with the applicant’s divorce or the attachment of his home.  The respondent has not set out any facts or particulars from which a cause of action can be inferred, nor has he made any allegations remotely resembling a cause of action.

[69]  The respondent has also chosen the wrong procedure to pursue his claims.  Claims for damages of the nature claimed by the applicant are to be brought by way of action proceedings and issuing summons.  In addition, the applicant has provided no proof to support the very serious allegations he has made against de Lange and the applicant.  Both applications stand to be dismissed with costs.

Discussion

[70]  The weight which must be accorded to the respondent’s allegations regarding the applicant’s alleged unlawful conduct towards him also has to be considered.  Several allegations have been made by the respondent.  In this sense several disputes of fact have arisen on the papers.

[71]  In Fakie NO v Systems (Pty) Ltd 2006(4) SA 326 SCA Cameron JA described the modern approach to motion proceedings where there are contradictory affidavits by applicants and respondents as follows:

“That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine in this court for more than 80 years.  Yet motion proceedings are quicker and cheaper than trial proceedings and, in the interests of justice, courts have been at pains not to permit unvirtuous respondents to shelter behind patently implausible affidavit versions or bald denials.  More than 60 years ago, this Court determined that a Judge should not allow a respondent to raise ‘fictitious’ disputes of fact to delay the hearing of the matter or to deny the applicant its order.  There had to be a ‘bona fide dispute of fact on a material matter’.  This means that an uncreditworthy denial, or a palpably implausible version, can be rejected out of hand, without recourse to oral evidence”.

[72] It is appropriate to deal with the alleged assault on the applicant first.  The respondent, in his answering affidavit, denied that he assaulted or threatened the applicant.  He also added that the applicant’s car lights never bothered him.  The video told quite a different story.

[73] The video footage forms part of the record.  It is quite apparent from the video that the respondent was indeed very angry about the headlights which shone on his unit.  He stormed the vehicle, in which the applicant was sitting.  He threatened the applicant and swore at him.  The actual attack on the applicant is not visually recorded but the respondent clearly came into close contact with the applicant just before the video recording was interrupted.  The sounds heard on the recording clearly resembled an assault or physical attack, which was highly probable, given the level of aggression displayed by the respondent on the video recording banging noises.  The sudden out of focus movements on the video footage also suggest an assault.  The respondent is clearly heard shouting and threatening the applicant with the words: “Ek sal jou vrekmaak” (“I will kill you!”).

[74] Attached to his affidavit filed in opposition to the application brought in terms of Uniform Rule 30(2), the respondent attached heads of argument, which actually amount to a signed statement by the respondent.  Therein, the respondent stated the following about the incident of the alleged assault on the applicant:

“The respondent attempted to shield himself from perverted behaviour – videoing.  The applicant clutched the respondent’s thin arthereutic (sic) hand by the wrist pained by the respondent, harmed the respondent, pulled the respondent’s fingers across window and executed a deliberate headbutt on respondents fingers, fracturing one of the respondent’s fingers against the vehicle window.  Earlier the applicant targeted respondent with his vehicle turning away at last second and making contact with the respondents boot.  (Kindly consider medical X-Ray video).”

The aforesaid version, in my view is most unlikely.

[75] The Computer Disc (CD) containing the X-ray of the respondent’s finger shows an earlier healed fracture according to Dr van Jaarsveld.  The evidence does not support his allegation that the applicant broke his finger during the scuffle at the car.  It rather detracts from his credibility.  The applicant on the other hand produced more credible medical evidence which is consistent with the kind of assault described he had sustained.  The assault by the respondent on the applicant is borne out by the video footage.

[76] The video clearly shows the respondent threatening the applicant when he threatened the applicant with the words: “skyn nou weer jou ligte!”  The respondent’s protestations that the applicant’s car lights did not bother him are patently false.  The respondent’s version of the assault is simply not credible.  He was also less than truthful in his answering affidavit where he denied that he swore at the applicant or threatened him.  It follows that on these papers, the respondent’s allegations about unlawful conduct on the applicant’s part, justifying an interdict, can be rejected out of hand.

[77] Consequently, the version of the applicant regarding the unlawful conduct of the respondent is to be preferred to the respondent’s version of events.  The video, letters and statements by the respondent as set out herein speak for themselves.  The respondent’s earlier retraction of the statements he made in various letters, clearly meant nothing to him.  As demonstrated, the respondent repeated many of them subsequently at various stages.  This suggests that the respondent is unable to restrain his insults.

[78] Section 10 of the South African Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected.  The respondents conduct towards the applicant and his attorney has clearly been in contravention of the aforesaid section.  His conduct goes far beyond freedom of expression and opinion, which is also protected by the Constitution.  The statements made by the respondent about the applicant which he published in letters to others, were intended to inflict harm.

[79] The respondent also breached the applicant’s right to freedom and security of the person, which is protected by section 12(1)(c) of the Constitution, by attacking the applicant in his vehicle.  Even if the applicant had said something which was perceived as provocation by the respondent, he was not entitled to conduct himself as he did.

[80] No person should be expected to put up with the kind of conduct evidenced in this case from his neighbour. In the circumstances, the applicant has established that he has a clear right to a final interdict against the respondent.  The rule issued by Chetty J on 3 October should be confirmed, subject to an amendment pertaining to the distance of five meters and an addition of the words “save for a lawful purpose” to paragraph 1.3.

Costs

[81]  During argument, I raised the concern that this was a matter which could easily have been dealt with in the magistrate’s court.  The parties have been there before.  The court has a discretion with regard to costs.  The respondent is a pensioner and appeared in person.  However, despite the interim interdict granted on 3 October 2014, the respondent did not exercise any restraint in reducing insults to writing as can be seen in his subsequent allegations, affidavits and statements.  In the circumstances, he should pay the costs of the application.

Order

[82]  In the result, and for the aforesaid reasons, I make the following order:

1. The respondent is hereby prohibited from:

1.1 writing to or communicating with the applicant in any manner whatsoever, save through an attorney;

1.2 writing to or communicating with any other person about, or in connection, with the applicant, save through an attorney;

1.3 approaching within 3 meters of the applicant, the applicant’s property, 9 Neopolis, South End, Port Elizabeth, and the applicant’s motor vehicle, save for a lawful purpose;

1.4 assaulting the applicant.

2. The respondent is to pay the costs of the application on the Magistrates’ Court scale.

3. The two applications for damages brought by the respondent are dismissed with costs, such costs to be on the Magistrate’s Court scale

________________

E REVELAS

Judge of the High Court

Applicant in person (Mr Gouws)

Counsel for the respondent, Adv Mullins, instructed by, Burmeister De Lange Inc.

Date Heard: 27 November 2014

Date Delivered: 11 December 2014

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