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[2017] ZAWCHC 154
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Swanepoel and Others v Swanepoel (18211/2017) [2017] ZAWCHC 154 (13 December 2017)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
18211/2017
ERHARD
SWANEPOEL
First
Applicant
HENDRICK
ARNOLDUS
SWANEPOEL
Second
Applicant
ENTERPRISES
SWANEPOEL
S.A.
Third
Applicant
vs
LUC
SWANEPOEL
Respondent
JUDGMENT DELIVERED 13 DECEMBER 2017
KUSEVITSKY
AJ
[1] This is an application in terms of
section 18(1) and (3) of the Superior Courts Act 10 of 2013 (“the
Act”) that
the order granted by me on the 17 October 2017 (the
main application) not be suspended by the application for leave to
appeal lodged
by the Respondent and that the order granted will
continue to be operational and enforceable and will operate and be
executed until
the final determination of all present and future
leave to appeal applications and appeals in respect of that order.
Background
[2]
The nub of this litigation involves two letters marked “HAS1”
and “HAS6” to the main application sent
to various
authorities in the Democratic Republic of Congo (“DRC”)
concerning the Applicants. The Respondent admits
to sending one of
the letters. The Applicants and Respondent are related and are
embroiled, I am told, in a myriad of litigation
across provinces and
borders.
[3] It is apposite to sketch a brief
history of this matter. On 28 September 2017, letter HAS1 was
sent by the attorney of
the Respondent, one Mr Dieudonne Muhinza
Lumoo, on his firm’s letterhead which was addressed to ‘The
Public Prosecutor
of the Lubumbashi Appeals Court, DRC’ as well
as to ‘The Director of the National Intelligence Agency of the
Province
of Upper Katanga in Lubumbashi, DRC’. The
introductory paragraph of the letter states of as follows:
“
Dear
Sir,
In my
capacity as attorney for Mr Luc SWANEPOEL, a partner in the company
ENTERPRISES SWANEPOEL SA, I am, in the name of my client,
resorting
to your court to request you to get involved in ensuring the
protection of the workers in difficulty working for ENTERPRISES
SWANEPOEL SA.”
[4]
This letter further
inter alia
accuses the Applicants of being in collusion with each other to the
detriment of the Congolese workers and furthermore accuses
them of
taking sums of money across the border without declaring same.
This was annexed as annexure “HAS1” to
the main
application, and Respondent in the main application denied
authorizing his attorney to send the letter.
[5]
The second letter, annexure “HAS6” dated 4 October 2017
was addressed to ‘His Excellence the Governor of the
Province
of Upper Katanga Lubumbashi’ and copies thereof sent to ‘The
Provincial Director DGM Lubumbashi Province of
Upper Katanga’.
In this letter, which the Respondent admits to sending to the
authorities, he
inter alia
accuses the Applicants of embezzlement, causing damage to the
company’s reputation and non or partial payment to employees
and ended the letter by stating the following:
“
Mr
Erhard Swanepoel now wishes to leave the country without paying the
workers and without arranging an acceptable solution. I beg
you to
take the necessary measures to remedy the situation”.
[6]
On the 28 September 2017, the First Applicant was due to fly to South
Africa from Luano Airport, Lubumbashi, DRC when, at the
airport and
waiting to board the airplane, he was summarily arrested by
immigration officials and removed and detained at other
facilities in
Lubumbashi. The First Applicant was not told the reason for his
arrest and his passport was confiscated. He could
therefore not
return to South African to see his family and attend to business. The
First Applicant then instructed local attorneys
there to ascertain
from the officials the reason for his arrest. On the 29 October 2017,
the attorneys informed him that unnamed
officials had confirmed that
it was as a result of the letter, “HAS1” and a copy of
this letter was sent to the attorneys.
The attorneys later informed
the First Applicant that the officials had agreed to return his
passport, which was duly done.
[7] On the 17 October 2017, I gave an
ex tempore
judgment and granted the order in favour of the
Applicants. The Order reads as follows:
IT IS ORDERED
1.
That the Respondent is within 24 hours of
the time that this order is made:
1.1
to give an instruction to Mr Dieudonné
Muhinza Lumoo of the firm
Cabinet
Mukonga et Muhinza Société
with
address 26,
Avenue du Cuivre Q Makomeno,
Commune et Ville De Lubumbashi
,
the Democratic Republic of Congo (“the DRC”), to
forthwith write and transmit to the addressees of annexure “HAS1”
to the founding affidavit, being
le
Directeur Provincial de La Direction Générale de
Migration de et á Lubumbashi, le Procureur Générale
prés la cour d’ Appel de et á Lubumbashi,
and
le
Directeteur de L’ Agence Nationale des Renseignements de la
province du Haut Katanga á Lubumbashi,
a letter on letterhead of his firm wherein the addressees are
informed that annexure “HAS6” to the supplementary
affidavit
is unconditionally withdrawn by the Respondent, and
1.2
to forthwith write and transmit to the
addressees of annexure “HAS6” to the supplementary
founding affidavit, a letter
wherein the addressees are informed that
annexure “HAS1” to the founding affidavit is
unconditionally withdrawn by
the Respondent; and
1.3
to furnish the Court and Applicants’
attorneys with proof under oath that he has complied with prayers 2.1
and 2.2 above.”
2.
That the Respondent be interdicted and
restrained:
2.1
from instructing Mr Dieudonné Lumoo
or any other person in the DRC to make any representations, whether
oral or in writing,
on the Respondents behalf to the addressees of
annexure “HAS1” to the founding affidavit and annexure
“HAS6”
to the supplementary founding affidavit, or
to any other like government or state official in the DRC, pertaining
to the
First and Second Applicants and their conduct involving the
Third Applicant, in like or in similar vein to annexure “HAS1”
to the founding affidavit and annexure “HAS6” to the
supplementary founding affidavit.”
2.2
From making any representations as
envisaged in prayer 3.1 himself;
2.3
From interfering in any manner with the
First and Second Applicants’ conduct, movements and business in
the DRC; and
2.4
From interfering in any manner with the
business of the Third Applicant in the DRC.
3.
That the Respondent is to pay the costs of
the application, on the scale as between attorney and client.’
[8] On the 18 October 2017, the
Respondent filed an application for leave to appeal that order. On
the 23 October 2017, the Applicants
filed an application in terms of
section 18(1) and (3) of the Superior Courts Act 10 of 2013 (“the
first section 18 application)
for the following relief:
“
That
the operation and execution of the order by the Honourable Kusevitsky
AJ under case number 18211/2017 on 17 October 2017 (“the
Order”) are not suspended by the application for leave to
appeal lodged by the Respondent, nor by any appeal by the Respondent,
and that the Order continues to be operational and enforceable and
will operate and be executed in full until the final determination
of
all present and future leave to appeal applications and appeals in
respect of the Order.”
[9]
That application was supported by an affidavit which sought to
introduce new evidence in support of the application. It stated
that
on the 19 October 2017, the First Applicant was again due to fly to
South Africa from the DRC when, at the airport, he presented
his
passport and ticket at the emigration desk but was denied permission
to leave the DRC by the officials concerned. The First
Applicant
immediately contacted his attorneys and informed them of the
situation. They confirmed that the reason why he was being
prevented
from leaving the DRC was because of one of the letters, i.e. “HAS1”,
that formed the subject matter in the
main application.
[10]
In opposition to the application, the Respondent averred that the
facts presented were not markedly unusual or specially different
from
any other situation where leave to appeal has been sought against a
final order. It was also contended that as a matter of
fact, the
First Applicant had been released from custody and that his passport
had been returned to him and that he was later allowed
to travel to
the Republic of South Africa from the DRC after the intervention of
his attorneys. It was furthermore contended that
there was not a
single primary fact to support the conclusion that the Second
Applicant would similarly not be able to travel between
South Africa
and the DRC and that the First Applicant was not re-arrested despite
attempting to leave the DRC which he was allowed
to do after the
intervention of his attorneys. He concluded by stating that if the
application was successful, he would be put
in a position where he
would be ordered to withdraw a letter that he did not instruct his
attorney to write and to withdraw a letter
that he wrote and he had a
well-grounded fear that the authorities in the DRC would consider
that he was crying wolf if he were
to renew his request for an
investigation on the same or similar grounds after a successful
appeal.
[11]
Finally, it was stated that there is no irreparable harm in allowing
the default position to endure and that no exceptional
circumstances
have been presented to suggest that the Applicants will suffer
irreparable harm.
[12]
On the 27 October 2017, I dismissed the application for leave to
appeal with costs and postponed the section 18 application
sine
die
, and granted the Applicants leave
to supplement their papers if necessary. The issue of costs was
reserved.
[13]
On the 2 November 2017, the Applicants re-enrolled the section 18
application and delivered a supplementary affidavit. This
re-enrolment was precipitated by the serving by the Respondent of a
Petition to the Supreme Court of Appeal against the the 17
th
October 2017 Order.
[14] I agreed to hear the second
section 18 application on the 15 November 2017. However, it was
apparent that by the time of the
hearing of the matter, the
Respondent, despite serving the Petition on the Applicants, it had
not been lodged with the Registrar
in terms of section 18(5) of the
Act. After hearing argument in respect of that point in
limine
which was taken by the Respondent on the grounds that the application
was premature for want of compliance, I ordered that in the
interest
of justice and for the reasons which I will return to shortly, the
matter could proceed. I accordingly heard the section
18 application.
Applicable
legislation
[15] Section 18, the provisions of
which bear the conditions necessary for a suspension of a decision
pending an appeal, states
as follows:
“
18.
Suspension of decision pending appeal
‘
(1)
Subject to subsections (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 of an appeal, is suspended pending the decision
of
the application or appeal.
(2) Subject to subsection
(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 or appeal.
(3) A court may only
order otherwise as contemplated in subsection (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 subsection (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 subsections (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.
[16]
It is trite that in terms of 18(1) read with ss (5) of the Act, the
lodging of an application for leave to appeal against a
judgment of a
high court has the effect of suspending the operation and execution
of such judgment, pending the decision of the
application.
[17]
In terms of section 18(5), a decision becomes the subject of an
appeal 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 applicable rules of court.
[18]
In explaining his failure to lodge the Petition with the Registrar of
the Supreme Court of Appeal, the Respondent argued that
the delay was
occasioned by the administrative department of this court in
submitting to him the typed order and judgments in relation
to the 17
October Order and the Order in respect of the leave to appeal
application and as a result, he could not comply with Rule
6 of the
Supreme Court of Appeal of Appeal Rules.
[19]
In this particular matter, it seems as if the petition to the SCA has
been served, but not yet lodged with the SCA.
[20]
In the case of
Panayiotou v Shoprite
(Pty) Ltd and Others
2016 (3) SA 110
(GJ
),
a legal question arose when the court had to determine whether the
service of an application to condone the late filing of a
petition to
the SCA in itself had the effect of suspending the judgment which
leave was sought for purposes of s 18 (5).
[21]
The court held in that instance that it was not. It found that
in that instance, all that was before the Supreme Court
of Appeal was
an application for condonation, which fate was unknown. The failure
to serve an application for leave to appeal within
the prescribed
time resulted in the lapsing of the right to apply for leave to
appeal and only on the granting of condonation would
it be revived.
The court held that this was the correct position as the corollary
would mean that a judgment many months or years
after it had been
obtained could be suspended merely by the service of a condonation
application, which position was untenable.
This case however seems to
be distinguishable from
Panayiotou
.
[22]
In this particular case it seems the petition had been served and not
lodged with the registrar of the Supreme Court of Appeal
in terms of
section 18 (5).
[23]
The Respondent argued firstly that no appeal existed at present as
they were awaiting the typed orders of 17 and 27 October
2017 and
that this application was therefore premature for non-compliance with
section 18(5). He, however, reiterated that
he have every
intention of filing his petition once he had complied with rule 6 of
the Supreme Court of Appeal rules. Rule 6 of
the Supreme Court of
Appeal Rules makes it clear that whilst a judgment can be filed with
the registrar of the SCA later, the Court’s
orders (including
the order relating to the application for leave to appeal) have to be
filed simultaneously with the petition.
He reiterated that he had
every intention to petition the SCA and that this “cannot be
doubted”. He furthermore argued
that because of the
non-compliance with s 18(5), the setting down of the second section
18 application was tantamount to an irregular
step which could be
cause for a rule 30 notice being filed, it being argued that
the Respondent was still well within the
time periods to file such a
notice.
[24]
The question which this court faced was whether, on a question of
fairness and since the parties and counsel were from out
of town, it
could hear the application and decide on the merits of the
application on the assumption that the petition would be
filed
timeously with the registrar of the Supreme Court of Appeal as soon
as this Court’s Orders were received.
[25]
Counsel for Respondent relied on the case of
Mogale
City Municipality and Others v Fidelity Security Services
2017 (4) SA
516
(GJ).
In that case, the
court had to determine firstly whether or not an application to
execute (otherwise known as a section 18 application
in this case)
ought to have been heard at all owing to the fact that the
application to execute was lodged on 9 June, when Mogale
City had not
yet lodged an application for leave to appeal, having done so only on
the 20 June 2016. On the 21 June 2016, the section
18(1) application
to execute was heard.
[26]
The Respondent relied on the following passage as support for his
argument. Paragraph 14 of the
Mogale
judgment states as follows:
“
[14]
The critical argument levelled by Mogale City at the judgment
of the court
a quo
is that,
notwithstanding that at the time of the hearing in terms of s 18(1)
an application for leave to appeal had been lodged,
s 18 requires an
actual application for leave to appeal to have been lodged before
there can be an application lodged to uplift
the suspension of the
order. There is, in our view, considerable force in this argument.
The architecture of s 18 provides for
three realms. The first is that
when an order of court is made, there is at once an obligation by the
defeated party to comply.
The second is that the obligation to comply
is suspended, a circumstance created by the action of lodging an
application for leave
to appeal. The third realm is the reversal of
the suspension on the grounds provided for in s 18. Therefore,
inescapably, there
can be no upliftment of a suspension before a
state of suspension exists. On this view, the preferable
interpretation of s 18 would
be to recognise that an application to
execute in terms of s 18(1) is a defence mechanism that a successful
party may put up to
resist the harm wrought by a suspension of the
obligation to comply. Accordingly, there is no occasion to raise a
shield unless
and until a sword is drawn.”
[27]
In my view, however, Sutherland J, (with Windell J and Modiba J
concurring), went further and explained the very nature of
section 18
proceedings. The court stated that section 18 was wholly procedural
in character and its purpose was to facilitate rapid
relief to
parties in the given circumstances. If I had to refuse to hear the
section 18 application for want of an administrative
function which
was imminently forthcoming, that would have resulted in the parties
having incurred an extra expense having to fly
back to Cape Town, to
argue on the same papers. In this regard Sutherland J stated the
following:
“
[19]
A mechanical application of the section, genuflecting to a rigidity
of the order of precedence of the jurisdictional preconditions
could
serve only a dilatory objective, an outcome wholly inconsistent with
the purpose of the section to afford urgent relief.
In our view,
independently of the regulation provided by rule 30, the dismissal of
the application to execute would have been so
obviously wasteful and
the delay in Fidelity coming again later on fresh identical papers so
inimical to the aims of s 18, that
a court exercising its inherent
power to regulate its process effectively, ought to have allowed the
matter to proceed and mero
motu condoned the irregularity.
[20]
It may also bear mention that the courts' patience with dilatory
litigious behaviour, and unconstructive tactical manoeuvrings,
is
exhausted and, increasingly, it shall be expected of legal
practitioners to manage and conduct litigation with at least a
semblance
of awareness that it is irresponsible to engage in Fabian
skirmishes which consume the resources of opponents and of the legal
system. If counsel are to be thought of as officers of the court it
is incumbent on them to see that there are clear manifestations
that
they are deserving of such an identity by promoting the resolution of
disputes through the process, not indulging in the manipulation
of
the process to arrest progress.”
[28]
I was also referred to the matter of
Ntlemeza
v Helen Suzman Foundation and Another
[2017] 3 All SA 589
(SCA)
which
also dealt with the effect of an application in terms of section 18
for an execution order pending the finalization of an
appeal process
.
In this case, General Ntlemeza was
appointed National Head of the Directorate for priority Crime
Investigations on 10 September
2015 by the Minister of Police. His
appointment was purportedly effected in terms of
section 17CA(1)
of
the
South African Police Service Act 68 of 1995
, which imposed as one
of the requirements for his appointment, that he be a fit and proper
person, with due regard to his experience,
conscientiousness and
integrity. In March 2016, Ntlemeza’s appointment was challenged
in the High Court by the first and
second respondents, Helen Suzman
Foundation (“HSF”) and Freedom under law (“FUL”).
[29]
The High Court found in favour of the Respondents. Subsequently
Ntlemeza applied to the High Court for leave to appeal the
principal
order. HSF and FUL, in turn filed a counter-application, in terms of
which they sought,
inter alia
,as a matter of urgency, a declaratory that the operation and
execution or the principal order not be suspended by virtue of any
application for leave to appeal or any appeal. The court dismissed
the application for leave to appeal but upheld the counter –
application.
[30]
In argument, counsel for Respondent in the present matter relied on
the same argument which counsel for Ntlemeza relied on
which was a
jurisdictional point which in Ntlemeza’s case they submitted
would be dispositive of the appeal. In Ntlemeza,
they contended that
in terms of
section 18(1)
, a pending decision on an application for
leave to appeal or an appeal was a jurisdictional requirement before
a court considering
an application to enforce an order was empowered
to make an execution order of the kind set out. It was contended that
sequentially,
the application for leave to appeal by Ntlemeza had
been refused before FUL’S counter-application was upheld
and thus
the High Court was precluded from considering the counter
application, because the jurisdictional fact of a pending decision in
relation to an appeal or an application for leave to appeal was
absent.
[1]
[31] For present
purposes, it is apposite to quote all of these succeeding paragraphs
where the court considered whether that contention
raised was well
grounded. The court held as follows:
“
[25]
In order to embark on a determination of whether the preliminary
jurisdictional point raised on behalf of General Ntlemeza,
set out in
para 17 above, has substance, it is necessary to consider the
provisions of
s
18(1)
and
(2). These sections provide for two situations.
First,
a judgment (the principal order) that is final in effect, as
contemplated in
s
18(1):
In
such a case the default position is that the operation and execution
of the principal order is suspended pending ‘the decision
of
the application for leave to appeal or appeal’. Second, in
terms of
s
18(2)
,
an interlocutory order that does not have the effect of a final
judgment: The default position (a diametrically opposite one to
that
contemplated in
s
18(1))
is
that the principal order is not suspended pending the decision of the
application for leave to appeal or appeal. This might at
first blush
appear to be a somewhat peculiar provision as, ordinarily, such a
decision is not appealable. However, this subsection
appears to have
been inserted to deal with the line of cases in which the ordinary
rule was relaxed referred to in para 20 above.
[26]
Both sections empower a court, assuming the presence of
certain
jurisdictional
facts,
to
depart from the default position. It is uncontested that the high
court’s judgment on the merits of General Ntlemeza’s
appointment is one final in effect and therefore
s
18(1)
applies.
This section provides that the operation and execution of a decision
that is the ‘subject of an application for leave
to appeal or
appeal’ is suspended pending the decision of either of those
two processes.
Section
18(5)
defines
what the words ‘subject of an application for leave to appeal
or appeal’ mean: ‘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.’
[27]
When the high court made its decision on the merits of General
Ntlemeza’s appointment on 17 March 2017, that order immediately
came into operation and could be executed. When General Ntlemeza, on
23 March 2017, filed his application for leave to appeal,
the order
(the principal order) of that court was suspended pending a decision
on that application. HSF and FUL’s ‘counter-application’,
seeking the execution order, was thus well within the parameters of
s
18(1).
Did
the dismissal of General Ntlemeza’s application for leave to
appeal prior to a decision on the execution application remove
the
jurisdictional underpinning for an execution order? The short answer
is no. The reasons for that conclusion are set out hereafter.
[28]
The primary purpose of
s
18(1)
is
to re-iterate the common law position in relation to the ordinary
effect of appeal processes – the suspension of the order
being
appealed – not to nullify it. It was designed to protect the
rights of litigants who find themselves in the position
of General
Ntlemeza, by ensuring, that in the ordinary course, the orders
granted against them are suspended whilst they are in
the process of
attempting, by way of the appeal process, to have them overturned.
The suspension contemplated in
s
18(1)
would
thus continue to operate in the event of a further application for
leave to appeal to this court and in the event of that
being
successful, in relation to the outcome of a decision by this court in
respect of the principal order.
Section
18(1)
also
sets the basis for when the power to depart from the default
position comes into play, namely, exceptional circumstances
which
must be read in conjunction with the further requirements set
by
s18(3).
As
already stated and as will become clear later, the Legislature has
set the bar fairly high.
[29]
The
preliminary point on behalf of General Ntlemeza referred to in para
17 above does not accord with the plain meaning of
section 18
. As
pointed out on behalf of HSF and FUL, and following on what is set
out in the preceding paragraph,
section 18
does not say that the
court’s power to reverse the automatic suspension of a decision
is dependent on that decision being
subject to an application for
leave to appeal or an appeal.
It says that, unless the court orders otherwise, such a decision is
automatically suspended
.
(“My emphasis”)
[30]
Moreover, contextually, the power granted to courts by
section
18
must be seen against the general inherent power of courts to
regulate their own process.
This inherent jurisdiction is now
enshrined in s 173 of the Constitution which provides:
‘
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa
each
has the inherent power to protect and regulate their own process
,
and to develop the common law, taking into account the
interests
of justice
.’
(‘My
emphasis”)
[31]
A further application for leave to appeal the principal order was
filed in this court on 21 April 2017. This was always highly
likely
and always in prospect. The nature of the contestation in the high
court, including the negative aspersions concerning the
character of
the head of a leading crime-fighting unit of the South African Police
Service, leads to that compelling conclusion.
So
too, one would imagine, whatever this court decides it is unlikely to
be the final word on the matter
.
The execution order by the high court reasonably anticipated further
appeal processes. This was in any event what was sought by
HSF and
FUL in their counter application. In their notice of motion, they
sought an order that the operation and execution of the
principal
order not be suspended ‘by any application for leave to appeal
or any appeal, and the order continues to be operational
and
enforceable and operate … until the final determination of all
present and future leave to appeal applications and appeals…’
A
court charged with the adjudication of an application for an
execution order would be astute to avoid a multiplicity of
applications.
(“My
emphasis”)
[32]
There can be no doubt that an application by HSF and FUL for leave to
execute, had there not been one earlier, could have been
brought and
would have been competent after the application for leave to appeal
was filed in this court.
Courts
must be the guardians of their own process and be slow to avoid a
to-ing and fro-ing of litigants
.
The high court’s order achieved that end. A proper case had
been made out by HSF and FUL for anticipatory relief. The high
court
reasonably apprehended on the evidence before it that further appeals
were in the offing and issued an order that sought
not just to
crystallize the position but also to anticipate further appeal
processes. For all the reasons aforesaid there
is no merit in the
preliminary point.”
(“My
emphasis”)
[32]
It is for these reasons as cited by the dicta in Ntlemeza, that given
the intention of the Respondent to file a petition and
being
precluded from doing so, together with the court’s inherent
power to dictate its own process and avoid wasteful time
and
expenditure, that I found that it would be an unjust exercise not to
allow the matter to be heard and accordingly I condoned
the
irregularity, and dismissed the point in
limine
and ordered that the section 18 application could proceed.
[33] I am fortified by the fact that
in the event that the Respondent does not lodge a petition for
whatever reason, then he will
still be visited by the order of the
17
th
October and be obliged to comply with the order. The
effect of this application would therefore be the same albeit in a
somewhat
roundabout fashion.
The
requirements of section 18(3) of the Act
[34]
I now turn to consider whether the Applicants have discharged their
onus in terms of section 18(3) of the Act.
[35]
Under the common law rule of practice, the court to which application
for leave to execute is made has a wide general discretion
to grant
or refuse leave and, if leave is granted, to determine the conditions
upon which the right to execute shall be exercised.
[2]
[36]
Now, with the repeal of Rule 49(1) of the Uniform Rules of Court,
section 18 introduces a fresh test for leave to put into
operation
and execute an order pending the appeal process.
[37]
The requirements for a successful section 18 application were
considered in
Incubeta Holdings (Pty)
Ltd and Another v Ellis and Another
2014 (3) SA 189
(GJ).
Sutherland
J held that they are the following:
39.1
“Firstly, whether or not ‘exceptional circumstances”
exist; and
39.2
Secondly, proof on a balance of probabilities by the applicant of –
39.2.1
The presence of irreparable harm to the applicant/victor, who wants
to put into operation and execute the order; and
39.2.2
The absence of irreparable harm to the respondent/loser, who seeks
leave to appeal.
[3]
”
Exceptional
Circumstances
[38]
With regard to the requirement of “exceptional circumstances”,
it was held in the matter of
University
of the Free State v Afriforum and Another [2017] 1 All SA 79 (SCA)
[4]
that whether “exceptional circumstances” for the purposes
of section 18(1) of the Act existed would necessarily depend
on the
peculiar facts of each case, the Court citing Incubeta Holdings with
approval where that Court held that:
“
[n]eccessarily,
in my view, exceptionality must be fact specific. The
circumstances which are or may be ‘exceptional’
must be
derived from the actual predicaments in which the given litigants
find themselves.”
.
[39]
As to what would constitute “exceptional circumstances”,
the court, in
Incubeta,
looked for guidance to an earlier decision (on Admiralty law),
namely,
MV Ais Mamas Seatrans Maritime v
Owners, MV Ais Mamas, & another
2002
(6) SA 150
(C), where it was recognized that it was not possible to
attempt to lay down precise rules as to what circumstances are to be
regarded
as exceptional and that each case has to be decided on its
own facts. However, at 156H-157C, the court said the following:
‘
What
does emerge from an examination of the authorities, however, seems to
me to be the following:
1.
What is ordinarily contemplated by the words “exceptional
circumstances” is something out of the ordinary and of
an
unusual nature; something which is excepted in the sense that the
general rule does not apply to it; something uncommon, rare
or
different; “besonder”, “seldsaam”,
“uitsonderlik”, or “in hoë mate ongewoon”.
2. To be exceptional the
circumstances concerned must arise out of, or be incidental to, the
particular case.
3. Whether or not
exceptional circumstances exist is not a decision which depends upon
the exercise of a judicial discretion: their
existence or otherwise
is a matter of fact which the Court must decide accordingly.
4. Depending on the
context in which it is used, the word “exceptional” has
two shades of meaning: the primary meaning
is unusual or different;
the secondary meaning is markedly unusual or specially different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a liberal meaning to the
phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.’
[5]
[40] The court in
Ntlemeza
also
referred to
UFS v Afriforum
(supra) where the court stated
that it was immediately discernable from sections 18(1) and (3) that
the legislature proceeded from
the well-established premise of the
common law, that the granting of relief of this nature constituted an
extraordinary deviation
from the norm that, pending an appeal, a
judgment and its attendant orders are suspended. It noted that the
exceptionality is further
underscored by the requirement of s
18(4)(i); that the court making such an order ‘must immediately
record its reasons for
doing so’. The court stated that
the reasons contemplated in s 18(4)(i) must relate to the court’s
entire reasoning
for deciding ‘otherwise’ and must
therefore also include its findings on irreparable harm as
contemplated in s 18(3).
Irreparable
Harm
[41]
With regard to the second leg of the enquiry, i.e. the presence or
absence of irreparable harm to either party, the full
bench in
Mogale City Municipality and Others v
Fidelity Security Services
2017 (4) SA 516
(GJ)
held
as follows:
6
“
The
discernment of 'irreparable harm' by a court is a factual finding. It
was stated in
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another
2014
(3) SA 189 (GJ) para 24:
'The
second leg of the s 18 test [ie the presence or absence of
irreparable harm to either party], in my view, does introduce a
novel
dimension. On the
South
Cape
test, ….
an even-handed balance is aimed for, best expressed as a balance of
convenience or of hardship. In blunt terms,
it is asked: who will be
worse off if the order is put into operation or is stayed. But s
18(3) seems to require a different approach.
The proper meaning of
that subsection is that if the loser, who seeks leave to appeal,
will suffer irreparable harm, the order
must remain stayed, even if
the stay will cause the victor irreparable harm too. In addition, if
the loser will not suffer irreparable
harm, the victor must
nevertheless show irreparable harm to itself. A hierarchy of
entitlement has been created, absent from the
South
Cape
test. Two
distinct findings of fact must now be made, rather than a
weighing-up to discern a preponderance of equities.
The discretion is
indeed absent, in the sense articulated in
South
Cape
. What remains
intriguing, however, is the extent to which even a finding of fact as
to irreparable harm is a qualitative decision
admitting of some scope
for reasonable people to disagree about the presence of the so-called
fact of irreparability.'
[42]
The Applicants relied on the decision of the full bench in
The
Minister of Social Development Western Cape v Justice Alliance of
South Africa
where
the court made it clear that notwithstanding the introduction of an
absolute threshold in the sense just discussed, the provisions
of s
18 do not result in the exercise of judicial discretion in the wide
sense being excluded in the determination of applications
for leave
to execute or for
orders
ad factum praestandum
to operate pending an appeal. It stated that even if the
double-edged requirements on irreparable harm and that of
exceptionality are satisfied, the court retains
‘a
wide general discretion to grant or refuse leave and, if leave be
granted, to determine the conditions upon which the right
to execute
shall be exercised’.
Considerations of what is just and equitable in the peculiar
circumstances remain relevant in that context.
[6]
(My emphasis)
[43]
That court also disagreed with an argument that ‘
the
requirements of s 18(3) set a higher standard for what needs to be
proved in respect of irreparable harm than the ‘the
potentiality of irreparable harm or prejudice’
referred to by Corbett JA in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[7]
,
holding that ‘the provisions does not require proof that there
is a certainty that irreparable harm will be suffered.
Proof of
a balance of probabilities that there is a likelihood that such harm
will be suffered will suffice. That is indistinguishable
from
establishing ‘the potentiality’ of such harm’. (My
emphasis)
[44]
With regard to the first requirement of exceptional circumstances,
the Applicants argued that they first sought and obtained
an Order to
remove the defamatory statements that were made about them in the two
letters from continuous publication and, more
importantly, to remove
the direct threat that the letters posed to their very liberty in the
DRC. They argued that on two occasions,
the letters caused the
liberty of the First applicant in the DRC to be impugned, and
prevented the Second applicant from going
to the DRC. They concluded
that without the implementation of the Order, the Order amounts to a
nullity and their reputations and
most importantly their liberty
continues to be imperiled by damage caused by the two letters.
[45]
As to irreparable harm that they might suffer, the Applicants argued
that the peril caused by the publication of the two letters
remains
as fact – and is on-going and constant. The harm to their
reputations, they say and liberty, are incapable of reparation.
They also argued that the likelihood of further harm of the type
already suffered is substantial and is likewise incapable of
reparation. Insofar as the perceived harm that could potentially fall
upon the Respondent, the Applicants aver that there is no
conceivable
harm that the Respondent can suffer as, so it was argued, on his own
version the worst case scenario for him is that
he might be accused
of ‘
crying wolf’
,
which Applicants argue, is not a recognizable harm.
[46]
The Respondent on the other hand raised as opposition to the section
18 application the fact that no appeal existed at the
time of hearing
of the application and that on that basis, the current application is
flawed. I have already dealt with this issue
above.
[47]
The Respondent also argued that there are no facts present which
indicate that exceptional circumstances are present which
would
justify an order being granted in favour of the Applicants.
[48]
The Respondent in his heads of argument placed huge emphasis on the
fact that the Applicants had filed a supplementary affidavit
pursuant
to the initial section 18 application claiming that the Applicants
sought to rely on further grounds to seek compliance
with section 18
without leave of this court. It is common cause that at the
postponement of the initial section 18 application,
I granted the
Applicants leave to supplement their papers should they deem it
necessary and unfortunately, given that counsel for
Respondent had
changed in between these proceedings, this was not communicated to
Respondent’s current counsel, Mr Steyn.
This therefore deals
with the second ground of Respondent’s objection.
[49] A further
objection relates to the failure by the Applicants to file a replying
affidavit, which, the Respondent argues, fails
to deal with a list of
challenges put up by them in their answering affidavit and which
should, as a matter of course, be deemed
to be admitted.
[50]
In
Maes
v Hancox
[8]
,
Bozalek J considered the purpose of the replying affidavit. He
stated as follows:
‘…
affidavits
in motion proceedings fulfil a dual purpose namely, to place the
essential evidence in support of or in opposition to
the granting of
the relief claimed before the court and to define the issues between
the parties (See:
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999
(2) SA 279
(W)
at 323G). It is trite that founding affidavits must contain the
essential averments on which an applicant’s cause of action
is
based, as in the absence thereof, a respondent would not know what
the case is that has to be met (See:
Derby-Lewis
and Another v Chairman Amnesty Committee of the TRC
2001
(3) SA 1033
(C)
at 1052C-E). A respondent’s responses to the averments in a
founding affidavit delineates the issues between the parties.
On the
other hand the purpose of a replying affidavit is to deal with the
averments made by the respondent in an answering affidavit
(See:
Bayat
& Others v Hansa & Another
1955
(3) SA 547
(N)
at 553C-E).’
[51]
Bayat
(supra) states the following:
‘
An
applicant for relief must (save in exceptional circumstances) make
his case and produce all the evidence he desires to use in
support of
it in his affidavits filed with the notice of motion whether he is
moving ex parte or on notice to the respondent and
is not permitted
to supplement in his replying affidavits (
the
purpose of which is to reply to averments made by the respondent in
his answering affidavit
)
still less to make a new case in his replying affidavits.
’
10
((My
emphasis)
[52]
A cursory reading of both the Applicant’s founding affidavit in
the initial application and supplementary founding affidavit
makes it
abundantly clear what they claim would happen should the application
not be granted. There can be little doubt that the
Applicants have
indeed made out a case in their respective founding affidavits.
[53]
Furthermore most of the paragraphs that the Respondent refers to in
his answering affidavit that he claims remains unchallenged,
refers
to argumentative material which, for the most part is prefaced by the
statement, “
it will be argued
that…”.
[54]
In my view, the paragraphs alluded to does not contain any
substantive allegations that would have called for, or necessitated
a
reply thereto, and in my view, is material best placed in Heads of
Argument.
[55]
Therefore Respondent’s contention that the allegations remain
unchallenged for want of a Reply thereto has no basis as
the
paragraphs alluded to lacks evidentiary value and therefore I do not
find that the Applicants’ failure to file a Replying
affidavit
is fatal to the Applicants case in this matter.
[56]
When a Court ultimately has to assess the threshold that is incumbent
upon the Applicants to overcome, it is noteworthy that
the Respondent
is aware of the situation that the Applicants finds themselves in and
has not denied same. The Applicants in their
founding affidavit
related the events of what transpired when they were due to fly to
South Africa from the DRC where they were
denied permission to leave
the DRC by the officials. The officials confirmed that they were
prevented from leaving because of the
letters which formed the
subject matter of the main application. This was not denied by the
Respondent in his answering affidavit.
The Respondent further admits
that First Applicant was allowed to travel to South Africa from the
DRC after the intervention of
his attorneys. The Respondent
furthermore confirmed in his answering affidavit that the Second
Applicant was arrested as a result
of the publishing of the letters
but dismissed it as trivial by stating “
the
First Applicant was not re-arrested despite attempting to leave the
DRC which he was allowed to do after the intervention of
his
attorneys.”
[57]
How any person, let alone a businessman can be expected to be
subjected to the threat of arrest every time he travels to his
business or home, wherever it might be situated, is unfathomable.
This flippant attitude to the threat of having ones personal
freedom
threatened to my mind does not favour the Respondent. The threat to
ones personal freedom, notwithstanding the fact that
it is an
enshrined right in our Bill of Rights, in my view constitute
exceptional circumstances as envisaged in the Act and the
Applicants
have indeed shown that they will suffer irreparable harm should the
order remain stayed. In contradistinction, the Respondent
has not
provided sufficient evidence to justify the conclusion that he will
suffer irreparable harm by the implementation of the
order.
[58]
I am therefore of the view that the Applicants have proven on a
balance of probabilities that they will suffer irreparable
harm if
this court does not so grant their order and that the Respondent will
not.
In
the result I mak
e the following
order.
1.
That the operation and
execution of the order granted by the Honourable Kusevitsky AJ under
case number 18211/2017 on 17 October
2017 (“the Order”)
is 0 not suspended by the Petition lodged by the Respondent, nor by
any appeal to be lodged by the
Respondent, and that the Order
continues to be operational and enforceable and will operate and be
executed in full until the final
determination of all present and
future leave to appeal applications and appeals in respect of the
Order.
2.
The question of costs
will stand over for later determination.
________________________
KUSEVITSKY AJ
Coram:
D Kusevitsky AJ
Judgment
by:
D Kusevitsky AJ
Counsel
for Applicant:
Adv C Wesley
Attorneys
for Applicant :
DP Du Plessis Inc, 102 River Road, Lyttelton Manor,
0157
(H J
Du Plessis)
Counsel
for Respondent: Adv I
Theron
Attorneys
for Respondent: Rossouws Leslie Inc, 8
Sherborne Road, Parktown, Johannesburg
Dates
of Hearing:
27
October 2017
Date
of Judgment:
13 December 2017
[1]
Para
17
[2]
South
Cape Corporation (Pty) Ltd v Engineering Services (Pty) Ltd v
Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at
545C
[3]
at
p194,para 16
[4]
at
para 13
[5]
Ntlemeza
V Helen Suzman Foundation and Another
[2017] 3 All SA 589
(SCA) at
para 37
6
at para 22
[6]
At
para 26
[7]
1977
(3) SA 534
(A)
10
See
also
Betlane
v Shelly Court
CC
2011
(1) SA 388
(CC)
at para 29