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[2016] ZAWCHC 117
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Okuli Security Services CC v City of Cape Town and Another; In re: Comwezi Security Services (Pty) Ltd v City of Cape Town and Another; In re: Command Security Services SA (Pty) Ltd v City of Cape Town and Another (19871/2015, 19872/2015, 19873/2015) [2016] ZAWCHC 117 (7 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 19871/2015
DATE:
7 SEPTEMBER 2016
In the matter
between:
OKULI SECURITY
SERVICES
CC
......................................................................................
Applicant
And
THE CITY OF
CAPE
TOWN
.....................................................................................
First
Respondent
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICES
............................................................................................
Second
Respondent
CASE
NO: 19872/2015
In
the matter between:
COMWEZI
SECURITY SERVICES (PTY)
LTD
.................................................................
Applicant
And
CITY
OF CAPE
TOWN
...............................................................................................
First
Respondent
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICES
............................................................................................
Second
Respondent
CASE
NO: 19873/2015
In
the matter between:
COMMAND
SECURITY SERVICES SA (PTY)
LTD
..........................................................
Applicant
And
THE
CITY OF CAPE
TOWN
.....................................................................................
First
Respondent
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICES
............................................................................................
Second
Respondent
Heard
on: 2 August 2016
Coram:
Donen AJ
Judgment
delivered on: 7 September 2016
Judgment
DONEN
AJ
[1.]
On 24 June 2016 I made an order in terms
whereof certain tax clearance certificates (“TCCs”)
submitted by the applicants
to first respondent (“the City”)
as part of their bid for a security services tender, and for the
purpose of being
registered on the City’s vendor database were
declared to have no status with SARS, and to be fraudulent and
invalid
ab initio
.
It was further declared that the City had lawfully cancelled its
contracts with the applicants for the supply of protection
services
at various council sites. On the same day the applicants filed
a notice of application for leave to appeal against
this order in the
main application.
[2.]
On 15 July 2016, and before the application
for leave to appeal had been heard, the City filed an application for
an order, in terms
of section 18 of the Superior Courts Act,
directing that the operation and/or execution of the aforementioned
order should not
be suspended pending the determination of the
applicants’ application for leave to appeal and/or petition for
leave to appeal,
and/or any appeal pursuant to the aforegoing;
directing that the City should be entitled to implement and act
pursuant to the court
orders; and in the event of the applicants
failing or refusing to comply with any of the said orders,
authorising the Sheriff and
members of the South African Police
Services to do whatever may be necessary to enforce compliance with,
and implementation of
the orders, including to ensure that the
applicants and their staff, contractors, equipment, vehicles and/or
property, are removed
from the sites at which the applicants have
been deployed to render security services to the City. (For
convenience this
is referred to below as the “section 18
application” or “the application to implement”.)
[3.]
Section 18 of the Superior Courts Act
provides as follows:
“
Suspension
of decision pending appeal
(1)
Subject to sub-sections (2) and (3),
and unless the court under exceptional circumstances orders
otherwise, the operation and execution
of a decision which is the
subject of an application for leave to appeal or an appeal, is
suspended pending the decision of the
application or appeal.
(2)
Subject to sub-section (3), unless
the court under exceptional circumstances orders otherwise, the
operation and execution of a
decision that is an interlocutory order
not having the effect of a final judgment, which is the subject of an
application for leave
to appeal or of an appeal, is not suspended
pending the decision of the application on appeal.
(3)
A court may only order otherwise as
contemplated in sub-section (1) or (2), if the party who applied to
the court to order otherwise,
in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the
court does not so order and
that the other party will not suffer
irreparable harm if the court so orders.
(4)
If a court orders otherwise, as
contemplated in sub-section (1) –
(i)
the court must immediately record
its reasons for doing so;
(ii)
the aggrieved party has an automatic
right of appeal to the next highest court;
(iii)
the court hearing such an appeal
must deal with it as a matter of extreme urgency; and
(iv)
such order will be automatically
suspended, pending the outcome of such appeal.
(5)
For
the purposes of sub-sections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.
[1]
”
[4.]
Prior to the commencement of this section
the common law prevailed. This was encapsulated in Rule 49(11)
which has been repealed.
The Rule provided as follows:
“
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
court has
made, the operation and execution of the order in question shall be
suspended, pending the decision of such appeal or
application, unless
the court which gave such order, on the application of a party,
otherwise directs.
”
[5.]
The applicants opposed the section 18
application. They also contended,
in
limine
,
that it would not be competent for me to hear the application because
I am not currently an acting judge. I heard the main
application by virtue of an acting appointment. The term of my
appointment ended on 1 April 2016. I do not presently
hold any
judicial appointment.
[6.]
On 2 August 2016 I heard both the
application for leave to appeal and the section 18 application.
On 26 August 2016 I dismissed
the application for leave to appeal and
ordered the applicants to pay costs. As a result the decision
of this court in the
main application ceased to be “
the
subject of an application for leave to appeal or an appeal
”
as contemplated in section 18(1) of the Superior Courts Act.
The jurisdictional requirement for operation of this
section and
suspension of the decision in the main application fell away.
The relief claimed by the City became otiose.
[7.]
The issues nevertheless remain as to
whether I was competent to entertain the section 18 application, and
to make any order in respect
thereof, and whether it will be
competent for me to adjudicate upon a renewed application should the
applicants pursue an appeal
by way of petition for leave to appeal to
the Supreme Court of Appeal. The latter possibility is contemplated
in the City’s
notice of motion.
[8.]
The key provision for purposes of the above
enquiry is section 48 of the Act. The section is headed “
Acting
judges of Superior Courts
”.
It provides as follows:
“
Any
person who has been appointed as an acting judge of a Superior Court
must be regarded as having been appointed also for any
period during
which he or she is necessarily engaged in the disposal of any
proceedings in which he or she has participated as
such a judge,
including an application for leave to appeal that has not yet been
disposed of at the expiry of his or her period
of appointment.
”
[9.]
Section
48 extends the appointment of an acting judge statutorily until the
disposal of any proceedings in which the acting judge
is engaged,
including an application for leave to appeal that was not yet
disposed of at the expiry of the acting judge’s
initial period
of appointment.
[2]
The
section replaces the repealed section 10(6) of the Supreme Court Act,
which employed very similar language. It
provided as follows:
“
Any
appointment made under this section shall be deemed to have been made
also in respect of any period during which the person
appointed is
necessarily engaged in connection with the disposal of any
proceedings in which he has taken part as a judge and which
have not
been disposed of at the termination of the period for which he was
appointed or, having been disposed of before or after
such
termination, are reopened.
[10.]
The common feature of sections 48 and 10(6)
is that they both extend the appointment of an acting judge during
the period that he
or she is engaged in the “
disposal
of any proceedings
” in which he
or she participated or took part during the period of appointment.
[11.]
In
dealing with section 10(6) and the former Rule 49(11), in
Airy
v Cross-Border Road Transport Agency
,
[3]
Tuchten AJ held that an acting judge, whose appointment as such
terminated after judgment had been given in the main proceedings,
could competently consider an application in terms of Rule 49(11) for
relief directed at the implementation of an order in the
main
proceedings against which application for leave to appeal had been
made.
[12.]
The language, meaning and effect of the
content of section 48 of the Superior Courts Act and section 10(6) of
the Supreme Court
Act are materially the same. Though the
driving principles that now apply to applications for leave to appeal
and implementation
of a court’s decision pending appeal, in
terms of sections 17 and 18 respectively of the Superior Courts Act,
are no longer
identical to what they were prior to enactment of the
Act this does not affect the present question for decision or
application
of the principles upon which Tuchten AJ reached his
conclusion.
[13.]
In my view the express inclusion in section
48 of the competence of an acting judge to hear an application for
leave to appeal that
has not been disposed of at the expiry of his or
her period of appointment, and the failure to mention applications to
execute,
do not alter the overall conclusion reached by Tuchten AJ.
Nor does the omission from section 48 of the words “
in
connection with
” that were
employed in section 10(6) of the Supreme Court Act.
[14.]
The
conclusion in the Airy case was reached by reference to
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
.
[4]
There Corbett JA stated that an order for leave to execute “…
relates
to, and is incidental to, the very matter which is the subject of the
main dispute in that it permits effect to be given
to a judgment on
the main dispute despite the fact that the dispute is to be canvassed
before an appellate tribunal. It makes
interim arrangements in
regard to the subject of the main dispute pending the final
determination of the matter on appeal.
It is clearly
interlocutory in the wide sense.
”
[15.]
Arising
from the content of the passage quoted above, Tuchten AJ concluded
that a Rule 49(11) application was an aspect of, and
had a connection
with the main application, as did an application for leave to
appeal.
[5]
That conclusion
remains valid under the Superior Courts Act. Upon a proper
interpretation of section 48, read with
section 18, the application
for the operation and execution of the decision in the main
application remains an incidental part
of the proceedings in the main
application which I participated in. The section 18 application
merely permits effect to be
given to the judgment. It is not a
separate proceeding.
[16.]
The order for execution remains
interlocutory. It does not have the effect of disposing of the
issue or relief claimed in
the main proceedings or any part of it.
Nor is it definitive of the parties rights.
[17.]
The
respective enactments of section 17 and section 18 of the Act have
had the effect of raising the bar for granting leave to appeal,
[6]
while at the same time giving stricter protection to appellants by
limiting the wide general discretion previously vested in a
court to
grant leave to execute, and permitting execution only under
exceptional circumstances, and if the applicant can prove
on a
balance of probabilities that it will suffer irreparable harm if the
court does not order execution and that the other party
will not
suffer irreparable harm if the court does not make an order.
[7]
Furthermore section 18(4) provides for automatic suspension and an
urgent appeal in the event of a court ordering implementation.
[8]
However, the principles enunciated by Corbett JA above and reiterated
by Tuchten JA have not changed under the new regime.
[18.]
Tuchten
AJ noted that the judge who presides in a court which considers a
Rule 49(11) application, in order to do substantial justice,
must
take into account all the relevant circumstances surrounding the
case, and should therefore be fully acquainted with the proceedings
which led to the order giving rise to the Rule 49(11) application. He
went on to observe that the judge who made the order under
attack
would more often than not have done a substantial part of the work
required for the proper adjudication of a Rule 49(11)
application
[9]
. Another
judge hearing such an application would have to repeat the work.
The legislature could not have been unaware
of these circumstances
when it enacted section 10(6) in order to facilitate the
administration of justice. The same applies to
section 48.
[19.]
The narrow interpretation presently urged
upon me by the applicants would not advance the efficient
administration of justice.
Decisions appealed against may be
the product of lengthy and complex litigation. What the
applicants are now suggesting is
that an acting judge whose period of
appointment has expired may competently adjudicate upon an
application for leave to appeal
against that decision if it has not
yet been disposed of at the expiry of his/her period of appointment;
but anterior thereto the
interlocutory decision, concerning whether
or not to allow the operation or execution of the decision pending
the application for
leave to appeal, would have to be considered
afresh by another judge. The intention of the legislature could never
have been to
fetter the administration of justice in this way.
[20.]
Applicants also rely for their argument on
the fact that implementation applications are not included at the end
of section 48 together
with reference to the power to consider
applications for leave to appeal. In the light of what is said above
in relation to the
language employed in section 48, and the
principles referred to by Tuchten AJ, this is not decisive in
interpreting the section.
For the same reason there is no merit in
applicants’ contention that another relevant consideration is
the fact that an application
to implement an order in terms of
section 18 need not, as with an application for leave to appeal, be
brought within a relatively
short or determinable time after the
judgment has been delivered.
[21.]
In all the circumstances I hold that the
City’s application in terms of section 18 of the Superior
Courts Act is part of the
disposal of proceedings in the main
application. It is competent for me to consider the application, and
to make an order accordingly.
[22.]
Because
the order I intend to make will be incidental to the main
application, and interlocutory in nature, it may be altered
[10]
if and when the applicants institute further proceedings and before a
court of appeal has finally determined the parties rights
in the main
application.
[23.]
I therefore make the following order:
[23.1]
The application, made by the City of Cape
Town in terms of section 18 of the Superior Courts Act, to put into
operation and execute
the order in the main application handed down
on 24 June 2016 is refused;
[23.2]
In the event of the applicants petitioning
the Supreme Court of Appeal for leave to appeal against the
aforementioned order the
City is granted leave to renew the said
application duly supplemented;
[23.3]
There will be no order as to costs.
DONEN
AJ
[1]
See
Erasmus:
Superior Court Practice 2
nd
Ed at A2-62.
[2]
See
Erasmus
Superior
Court Practice
2
nd
Ed Van Loggerenberg at A2-190 Service 2, 2016
[3]
2001
(1) SA 737
(TPD); paragraphs 13, 14 and 15 at 741 A – F.
[4]
1977
(3) SA 534
(AD) at 551 E – G
[5]
At
p. 741 A – C
[6]
See
Acting National Director of Public Prosecutions & Others v
Democratic Alliance In Re: Democratic Alliance v Acting
National Director of Public Prosecutions & Others (19577/09)
[2016] ZAGPPHC 489 (24 June 2016) para 25, referring with approval
to the Mont Chevaux Trust (2012/28) v Tina Goosen & 18 Others
(unreported judgment of the Land Claims Court, LCC 14R/2014.)
See too Investec Bank Limited v Karel & Another (2013/34683)
[2016] ZAGPJHC 171 (15 June 2016), para 14; and the Daantjie
Community & Two Others v Crocodile Valley Citrus Company (Pty)
Ltd (75/2008) LCC (28 July 2015) para 3.
[7]
See
Incubeta Holdings v Ellis
2014 (3) SA 189
[8]
But
for the enactment of S18(4) the appealability of an implantation
order might have been in doubt. See
South
African Druggists Ltd v Beecham Group plc
1987 (4) SA 876
(TPD)
where it was held that an implementation order was interlocutory and
not appealable.
[9]
See
Airys case supra paragraph 9 at 740B-D
[10]
See
the
South
Cape Corp case – supra – at 550 H to 551 A