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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NUMBER :4404/99

DATE : 26 MAY 1999

In the matter between ;-

GAYATRI NAGAR HOMEOWNERS ASSOCIATION AND OTHERS …......................Applicants

and

PATEL,VINODKUMAR............................................................................................ Respondent

JUDGMENT

WILLIS, J. : This is an application in terms of which 23 applicants make application to the court for an order that a settlement agreement (annexure C to the affidavit annexed thereto) be made an order of court. Further ancillary relief was also sought:

"2.That the respondent immediately on service of the order calls at the offices of Fluxman Rabinowitz Raphaely Weiner ("Fluxmans") to sign whatever documents may be necessary to effect transfer of the property described as Portion 8 of Erf 34573 Glenvista Extension 6 Township in favour of Satish Chotoo Govon and Bharti Govon, and the property described as Portion 9 of Erf 3473 Glenvista Extension 6 Township (hereinafter referred to as "the properties") in favour of Sharadchandra Manilal Narsai, alternatively, should the respondent fail to call at the offices of Fluxmans within seven days after service of the order on him, that the sheriff of the above Honourable Court be and is hereby authorised to sign the necessary transfer document to effect transfer of the property.

3. That the respondent pays the amount required to settle the outstanding rates and taxes on the properties to enable transfer to be effected.

4. That the respondent pays the amount required for the issue of certified copies of the tit-e deeds of the aforesaid properties.

5. That the respondent pays for the costs of cancellation of the existing bonds registered over the aforesaid properties.

6. That the respondent pays the costs of this application as between attorney and own client."

It is common cause that the agreement (annexure C to the founding papers) was signed by the respondent. It is common cause that in that agreement, in paragraph 5 thereof, it is agreed that this agreement be made an award in the above arbitration.

It is furthermore common cause that the arbitrator, Adv P A Solomon SC, did in fact make this agreement an award. There furthermore does not seem to be any dispute that the various applicants consented to be joined as claimants in terms of the agreement entered into.

Paragraph 1.1 of this agreement provides that the respondent agrees to pay the sum of R3O0 000 to the complainants on or before the 31st day of July 1998", and paragraph 1.2 provides that "the respondent agrees to sign (10) the necessary documentation to enable transfer of portions 8 and 9 of Erf 3473 Glenvista Extension 6 Township into the name of the nominee of the claimants, free of consideration and free of encumbrances, and the aforesaid transfer will be effected by Fluxmans."

It is common cause that paragraph 1.1 of this agreement has been complied with. It is also common cause that 1.2 has not been complied with.

The respondent has raised, initially, certain technical objections and also certain substantive objections. I shall deal with the technical objections first.

The first technical objection is that the first applicant has contravened the provisions of section 31 of the Companies Act, inasmuch as it consists of more than 20 members and he is operating for gain, and accordingly he is unlawfully operating.

It is in my view unnecessary to consider whether there is any substance in this objection to the first applicant's locus standi, for reasons that I shall refer to later.

The further objection is that there is reference to the D K Motiram Family Trust, as the seventh applicant, without there being a reference to the trustee.

In my view rule 14 enables the citation of the seventh applicant on this basis. But even if I am wrong in this regard, for the same reasons that I consider the objection to the citation of the first applicant to be irrelevant, I consider this objection to be irrelevant.

Section 31(1) of the Arbitration Act, 42 of 1965, provides as follows:

"An award may, on the application to a court of competent jurisdiction by any party to the reference after due notice to the other party or parties, be made an order of court."

It therefore seems absolutely clear that any party to an arbitration award has locus standi to seek the award to be made an order of court. Even if there is some deficiency in the title of the first applicant or the seventh applicant it would seem that any of the other applicants would have locus standi to bring this application.

Mr Marais, who appears for the respondent, argued that there had not been a full citation of the various applicants and that this was fatally defective.

It is correct that there is not a full citation of the various applicants other than the first applicant. But in my view, in view of the fact that it is common cause that the arbitration agreement was in fact entered into between the parties, that it is common cause that it was marie an award, there is no substance in this objection. Even if there were to be a full citation of the various applicants,

even if I were to grant leave to the applicants to file supplementary papers setting out the particulars concerning their occupations, addresses and so on, it would make no difference whatsoever to the material issues in dispute. The respondent can hardly claim that he does not know who is bringing the application. I therefore consider that this is a technical objection which should be disregarded for the purposes of this judgment.

With regard to prayer 2 of the notice of motion Mr Subel, who appears for the applicant, correctly conceded that it may not appear sufficiently clear from the papers that Sharadchandra Manilal Narsai was appointed as the nominee on behalf of the complainants. He said that he would be satisfied in all the circumstances if, instead of making such an order, I was simply to order that paragraph 1.2 of the agreement between the parties be complied with by the respondent.

With regard to the defence of duress I think the following points are important.

The alleged duress occurred, according to the respondent, during 1996 when one Mr Chetty was sent by the second applicant in this matter to him and that he was threatened by him and said that the persons involved in Gayatri Nagar Estates, particularly the seventh applicant
and the fifth applicant, would hire somebody who will do anything for money. This was clearly a threat by the applicant that they would hire somebody to do harm to the respondent and his family. Interestingly enough the agreement, which it is common cause was entered into
between the parties, was signed on 2 July 1998.

There are then various vague allegations that do not directly connect the threats to any of the applicants, versions to mysterious persons moving about the respondent' s surgery outside, black men coining to the surgery and asking mysterious questions about when the respondent went home and what vehicle he was driving, etc. In fact there is no link pertinently stated in these allegations of threats to any of the complainants.

It is also in my view significant that the respondent, having entered into this agreement, has partly performed in terms of it. The respondent has paid the sum of R300 003 to the complainants notwithstanding this alleged duress. Furthermore, it is common cause that when the respondent was called upon to perform in terms of the agreement the respondent's legal representative, Dr I M Jajbhai, on 20 January 1999 nowhere in his letter, in response to a demand that the respondent perform, mentions any such threats. Indeed there are vague allusions to the incompetence of the previous attorneys and counsel acting for the respondent, failing to carry out the instructions and the mandate. There is an invitation to settle this whole dispute on an amicable basis.

It is correct that the applicants have come to court by way of motion and that there is a risk for them where there are disputes of fact on the papers. I refer in the first instance to the case of Plascon-Evans Faints v Van Riebeeck Paints [1984] ZASCA 51; 1984 3 SA 623 (AD), where Corbett JA (as he then was) said at 634 H:

"It is correct that, 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 respondent, together with the facts alleged by the respondent, justifies such an order. The power of the court to give such final relief on the papers before it is however not confined to such a situation. In certain instances the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real genuine or bona fide dispute of fact."

His lordship then goes on to refer to certain well-known cases, such as the Room Hire v Jeppe Street Mansions' case, and he goes on to say:

"If in such a case the respondents have not availed themselves to apply for the deponents concerned to be called for cross-examination, and the court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those which has determined whether the applicant is entitled to the final relief which he seeks. Moreover, there may be exceptions to this general rule as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers."

I wish to emphasise the following:

"There may be exceptions to this general rule as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers."

I refer also to the case of Administrator Transvaal and Others v Theletsana and Others [1990] ZASCA 156; 1991 2 SA 192 (AD) , where Botha JA said at 197 A:

"For my purposes it is enough to say that in motion proceedings as a general rule decisions of fact cannot properly be founded on the considerate on of the probabilities unless the court is satisfied that there HO) is no real or genuine dispute on the papers in question, or that the other party's allegations are so far-fetched or clearly untenable as to warrant their rejection merely on the papers, or that viva voce evidence would not disturb the balance of probabilities appearing from the affidavits this rule, which is trite, applies to instances of disputes of fact, and also in cases where an applicant seeks to obtain final relief on the basis of undisputed facts, together with the facts contained in the respondent's affidavit."

In my view the allegations by the respondent, of duress, are in the circumstances clearly so far-fetched and untenable that the court is justified in rejecting them merely on the papers.

For these reasons I am satisfied that the applicant is entitled to the relief it seeks in prayer 1 of the notice of motion.

With regard to prayer 2 I have already dealt with the fact that the applicant accepts that it would be more appropriate simply to make an order in terms of the arbitration award and the agreement and by reason of the fact I propose simply to direct the enforcement of the arbitration award, prayers 3, 4 and 5 are premature m my respectful view.

With regard to prayer 6, that is that the respondent pays the costs of the application on a scale as between attorney and own client, I am not satisfied that an order is justified which goes so far as to direct that the costs be paid on the scale as between attorney and own client, (10) but I am satisfied in these circumstances that an order that the respondent pays the costs of the application on the scale as between attorney and client are appropriate.

ORDER

In the result the following order is made:

1. The settlement agreement (annexure C) to the affidavit annexed to the notice of motion dated 17 February 1999 is made an order of this court.

2.The respondent is directed to sign the necessary documentation to enable the transfer of portion 8 and/or 9 of Erf 3473 Glenvista Extension 6 into the name of the nominee of the claimants free of consideration and free of encumbrances.

3. The respondent is directed to liaise with Fluxman Rabinowitz Raphaely Weiner ("Fluxmans") with regard to complying with prayer 2 above.

4.The respondent is to pay the costs of this application on an attorney and client scale.

INSTRUCTED BY;S PERLMAN

ON BEHALF OF RESPONDENT: ADV MARAIS

INSTRUCTED BY: ANTON VAN ASWEGEN

DATE OF HEARING:26 MAY 1999

DATE OF JUDGMENT: 26 MAY 1999

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