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[2021] ZAWCHC 279
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Driveconsortium Hatfield (Pty) Ltd (previously known as Henri Jacob (Pty) Ltd v Takealot Online (RF) (Pty) Ltd (7348/2021) [2021] ZAWCHC 279 (26 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No.
7348/2021
DRIVECONSORTIUM
HATFIELD (PTY) LTD
Applicant
(previously
known as
HENRI JACOB (PTY) LTD
)
and
TAKEALOT
ONLINE (RF) (PTY) LTD
Respondent
Date
of hearing: 12 May 2021 and 13 May 2021
Date
of Judgment: 26 May 2021 (to be delivered via email to the parties’
legal representatives at 09h00)
JUDGMENT:
26 MAY 2021
HENNEY,
J
Introduction
:
[1]
This is an application for urgent interim relief pending the
finalisation of proceedings instituted
at the National Consumer
Commission, alternatively, in the Western Cape Division of the High
Court
,
to interdict the respondent from exercising its rights
under clause 35.3.2, read with clause 5.2, of the franchise
agreement
concluded between the applicant and the respondent, dated
29 October 2018 (the “
franchise agreement
”).
Further also to restore the applicant’s business to the
position in which it existed prior to the respondent’s
exercise
of its rights (on 30 April 2021) under clause 35.3.2,
read with clause 5.2, of the franchise agreement.
[2]
The respondent is a well-known online retailer, which sells all of
its products on
the Takealot website. Customers purchase
products online at www.takealot.com, and the respondent then, in
terms of the franchise
agreement, delivers the purchased products to
the various customers. In order to effect these deliveries, the
respondent
could deliver the parcels itself or by means of
third-party couriers; however, in most cases, delivery is by means of
its respective
franchisees.
The
relevant provisions of the franchise agreement:
[3]
In terms of clause 5.1 of the franchise agreement, a franchisee, like
the applicant,
acquires certain rights. These are: the right to
establish a franchised outlet in the protected area, with the effect
that,
subject to the remaining terms of the agreement, Takealot shall
not grant the right to establish a franchised outlet in the protected
area to any other Takealot franchisee; and a right to perform P2P
services in respect of consumables outlets located within the
consumables collection area on the basis, as a general rule, that the
franchisee shall a have preferential right (but not an exclusive
right) in relation to the performance of such P2P services within the
consumables collection area, as against any other Takealot
franchisee.
[4]
It further recognises that overlaps may occur between the areas
allocated to the franchisees,
and that where there is such an
overlap, Takealot will allocate the instruction to perform the
relevant P2P services to the franchisee
that, in Takealot’s
discretion, is, having regard to the relevant circumstances applying
at that point in time (including
volume of demand and the capacity of
the respective franchisees to meet that demand), best placed to
perform such services; aside
from the preferential right a franchisee
has, it is further granted a non-exclusive right to perform
franchised services in the
protected area and such other areas as
Takealot may, in its discretion, from time to time, direct. A
‘protected area’
is described in the agreement as an area
in which the franchisee is granted the right to establish a
franchised outlet.
[5]
The respondent is a franchisor of the Takealot franchise group and
the applicant is
one of the franchisees, in terms of an agreement
entered into between them on 29 October 2018. At the heart of
the dispute
between the two parties, is the invoking of the
provisions of clause 5.2, notwithstanding the provisions of clause
5.1, as referred
to above. More particularly, clauses 5.2.1,
5.2.2 and 5.3. Clause 5.2 states:
‘
Takealot retains
the right to at any time perform any Franchised Service itself or to
have any Franchised Service performed by any
of its affiliates, by
any other Takealot franchisee or by 3PL courier, if in Takealot’s
discretion it is appropriate, having
regard to the relevant
circumstances applying at that point in time (including the demand
and the capacity of the respective franchisees
meet that demand).’
Clause 5.2.2 states:
‘
If the Franchisee
fails to meet any two or more of the service levels required by
Takealot as set out in the Operational Directions
and Instructions .
. . during any month and, after the receipt of written notice to do
so, again fails to meet any more of the
required service levels
(whether or not these are the same service levels as those previously
failed) during the month following
such written notice, Takealot
shall be entitled, by way of written notice given to the Franchisee,
either to itself establish or
to permit any other person (including
one of its Affiliates) to establish, one or more other franchised
outlets . . . in the Protected
Area and to reduce or to adjust the
Franchisee’s Protected Area to such a scale as in the
discretion of Takealot is appropriate
to the capacity of the
Franchisee when taken in relation to the demand for the Franchised
services in the area in which the Franchisee
operates. In such
event and regardless of anything else to the contrary to this
agreement, Takealot shall bear no obligation
to first offer the
Franchisee the right to establish the new Franchised outlet as
provided clause 6.’
Clause 5.3 states:
‘
The Franchisee
agrees that the terms of clause 5.2 are reasonable and necessary to
protect the interests of Takealot and to protect
the interest of each
Takealot franchisee.’
[6]
The respondent alleges that the applicant committed a breach of the
agreement that
resulted in it invoking the provisions of clause 35.2.
It further alleges that it took the steps as contemplated in
clause
5.2, after the occurrence of an event of default, as
contemplated in clause 35.2 of the agreement. More
particularly, the
occurrence of an event of default in terms of
clause 35.2.6, which, read with clause 35.2, states that:
‘
An event of
default shall occur if-
35.2 . . .
35.2.6 the Franchisee
engages in any conduct that Takealot in its discretion considers may
adversely affect the Trademarks, the
System and/or the Takealot
franchised Group or the reputation of any of the aforegoing, or the
Franchisee breaches any provision
of this agreement or the
Operational Directions and Instructions in relation to the use of the
Trademarks, and fails to remedy
such default within 5 (five) days of
receiving written notice from Takealot requiring the default to be
remedied, provided always
that if such default is not reasonably
remediable within the 5 (five) day period or at all, that no such
remedy shall apply.’
[7]
Clause 35.3 states that: ‘Upon, with any time after the
occurrence of an event
of default, the franchisee’s rights in
relation to the protected area and the consumable collection area
shall immediately
fall away, should Takealot give the franchisee
written notice to that effect; Takealot may exercise its rights in
terms of 5.2;
and/or Takealot may immediately terminate the agreement
upon the written notice thereof to the franchisee.’
The
scope of the relief and the alleged event of default
[8]
These steps to invoke the provisions of clause 5.2 were taken after
the respondent became aware,
at the beginning of April 2021, of
letters the applicant had sent to the Franchise Council, and also to
the independently contracted
drivers, which was of great concern to
the respondent. According to the respondent, the applicant made
the following statements
in its communiqué to the Franchise
Council:
1) that
the applicant has ‘been targeted by HO since the EFF strike
experience last year’;
2) a
suggestion that the applicant is ignorant as to why the respondent
has acted as it has, or its reasoning;
3) that
the applicant has acted ‘under duress’;
4) that
the respondent has chosen to ignore all correspondence with regards
to its areas of operation;
5) that
(as a result of the respondent’s actions) 250 independent
contractors and staff will therefore be
without an income “as
from tomorrow”;
6) that
any direct instructions from the respondent would be ‘at
complete risk’ of the independently
contracted drivers;
7)
‘that the respondent is jeopardising the livelihoods of
independent contractors and staff’;
8) that
the respondent failed to give an explanation for its actions;
9) that
the respondent holds the franchisees in poor regard and has little
regard for the livelihoods of hundreds
of people or respect for the
franchise agreements or the law;
10) that the respondent
is using bullying tactics and will treat smaller franchisees poorly.
[9]
The respondent alleges that similarly, in its letter to the
independently contracted drivers,
the applicant suggested that:
1) the
respondent’s conduct would pose ‘a massive threat to the
livelihood of all independent contractors
not just in Pretoria but
nationally’;
2)
repeating the suggestion that the respondent has ‘little regard
and respect for the livelihoods of hundreds
of people’; and
3)
suggesting that the respondent made common cause with those who
perpetrated the strike. In its letter
to the drivers it
expressed the hope that all independent contractors would refuse to
work in the areas ‘appropriated by
Mr. D/Takealot at the cost
of many innocent individuals’.
[10]
As a result of these communiqués to these entities, the
respondent, on 20 April 2021, sent a breach
notice to the applicant,
wherein it notified the applicant that it had disseminated incorrect
information in relation to the respondent
and the applicant’s
dispute. Furthermore, that it had also disseminated comments
which were likely to result in damage
to the respondent’s brand
and trademarks. The notice also informed the applicant that
such conduct constituted a breach
of the terms and conditions of the
agreement, and an event of default under clause 35.2, entitling the
respondent to exercise its
rights under clause 5.2. It
furthermore advised that it would do so from 1 May 2021.
[11]
The respondent contends that the applicant’s case initially was
that the conduct complained of by the
respondent, did not entitle the
respondent to exercise its rights in terms of clause 5.2, by reducing
applicant’s volumes.
More importantly, the applicant
stated that the respondent did not rely on an ‘event of
default’ in taking this
action, to which the respondent replied
in its answering affidavit that it did rely on an event of default,
and thus that it had
acted in terms of clause 35.2, and not directly
in terms of clause 5.2. According to the respondent, after
realising its
error, the applicant attempted to argue that
notwithstanding the provisions of clauses 35.2 and 35.3 (to which it
does not object),
the respondent’s conduct in exercising it
rights under clause 5.2 was neither reasonable nor appropriate. The
respondent
submits that this is simply unsustainable, in light of the
agreement between the parties that the respondent was contractually
permitted to do so under clauses 35.2 and 35.3.
[12]
According to the applicant, it does not believe that its actions
constituted a breach of the franchise agreement,
but that even if it
did, it denies that that gave the respondent cause to appropriate its
entire business. It further submits
that the appropriation of
the Hatfield area would cause the applicant’s inevitable demise
and winding up. It has various
contractual obligations,
including obligations in terms of agreements of lease. The
obligations relating to the rental of
premises amounts to
approximately R160 000 per month. These lease agreements will
only expire in 2024. The loss suffered
in this respect alone
would exceed R5.8 million. The applicant employs 51 full-time
staff and has more than 700 drivers providing
a service to the
business, and who generate a living from the business.
[13]
The applicant further claims that the respondent afforded it 10 days’
notice that ‘100% of the
order volumes of Hatfield hub shall be
removed with effect from 1 May 2021’. Therefore that the
respondent gave 10
days’ notice that the applicant’s
business would be completely shut down, based on nothing more than
correspondence
sent by the applicant, to a limited group of
recipients, out of frustration and in incredibly challenging
circumstances. Further
that the respondent thereafter, without
approaching the court, attended the applicant’s premises and
removed its goods, which
resulted in the applicant being prevented
from conducting its business.
[14]
The applicant submits that the respondent’s conduct amounted to
unlawful and impermissible self-help.
In this regard the
applicant referred to
Bock
and Others v Duburoro Investments (Pty) Ltd
[1]
that
has recognised (in the context of parate executie clauses, but also
with reference to remedies such as a mandament van spolie)
that
‘[o]ur common law has always recognised that self-help is
unlawful.’
.
[15]
The applicant submits further that whilst the respondent has a
discretion under clause 5.2 of the franchise
agreement to perform
franchise services, or to have the services performed by another
franchisee (consequently reducing the applicant’s
volumes),
such discretion must be exercised appropriately, reasonably and
fairly. It submits also that the drastic steps
taken by the
respondent, to shut applicant’s business on 10 days’
notice and without any compensation, do not remotely
constitute an
appropriate, fair or reasonable exercise of its discretion.
[16]
Furthermore, that the respondent’s contention that the relief
sought by the applicant is not competent,
is without any substance
and fundamentally misconceived. Firstly, because the
applicant’s fundamental complaint is
not that clause 5.2 of the
franchise agreement is unreasonable, unfair or unjust; it is but one
of several complaints the applicant
has highlighted. More
importantly, the applicant objects to the respondent’s decision
to usurp and appropriate the
applicant’s territory, and it
seeks relief that will prohibit the respondent from removing the
applicant’s order volumes.
[17]
Its primary concern relates to the respondent’s conduct, not to
the provisions of the franchise agreement.
Whilst clause 5.2
facilitates the respondent’s conduct, and consequently
establishes a basis for the applicant’s
complaint that the
terms of the franchise agreement are unreasonable, unfair and unjust,
the thrust of the applicant’s complaint
is that the manner in
which the respondent invoked clause 5.2, and acted upon it, is
unfair, unreasonable and unjust.
[18]
Secondly, the applicant additionally submits that the franchise
agreement is governed by the provisions of
the Consumer Protection
Act 68 of 2008 (“the CPA”), which has as its object to
promote fair business practices and
to protect consumers (which
includes the applicant) against unfair trade practices. It
entails that suppliers, such as the
respondent, are prohibited from
entering into agreements on terms that are unfair, unreasonable or
unjust, or to impose any such
terms as a condition of entering into a
transaction.
[19]
A supplier may also not administer any agreement in a manner that is
unfair, unreasonable or unjust. In
this regard the applicant
relies on sections 48 (1) (a) (ii) and 48 (1) (b) of the CPA. Also
that in terms of the CPA a consumer
(such as the applicant) may not
be required to waive any rights or assume any obligations or terms
that are unreasonable, unfair
or unjust, while such terms would be
considered unfair if they are excessively one-sided or so adverse as
to be inequitable. In
this regard the applicant refers to
sections 48 (1) (c) and 48 (2) (a).
[20]
Furthermore, that sections 51 (1) (a) (i) and 51 (1) (i) (i)
[2]
of the CPA prohibits specific terms which have as their general
purpose or effect to defeat the purpose and policy of the CPA,
or to
enter premises and take possession of good forming the subject matter
of the agreement. The remedies available to consumers
in terms
of section 52 (3) of the CPA, would be declaratory relief, indicating
that certain terms of the agreement are invalid
or unenforceable, and
also to restore property. Section 114 of the CPA further
provides that the court is entitled to entertain
interim interdictory
relief if certain requirements are met.
[21]
The applicant further submits that, in addition, the regulations made
in terms of section 120 (1) of the
CPA
[3]
provide that: ‘A franchise agreement has to contain provisions
which prevent conduct which is unnecessary or unreasonable
in
relation to the risks to be incurred by one party or to prevent
conduct which is not necessary for the protection of the legitimate
business interests of the franchisor. Any provision in conflict
with the regulations is void to the extent of such conflict.’
It submits that this provision is also applicable to this case.
Requirements
for an interlocutory Interdict
[22]
The requirements for an interlocutory interdict, such as that sought
by the applicant, are well established.
It has to satisfy the
following requirements
[4]
:
‘
(a)
prima facie
right;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is
eventually granted;
(c)
a balance of convenience in favour of the granting of the interim
relief; and
(d)
the absence of any other satisfactory remedy.’
[23]
These requirements should not be considered separately or in
isolation, but in conjunction with one another,
in order to determine
whether the court should exercise its discretion in favour of the
granting of the interim relief sought.
[24]
Section 114 of the CPA also make provision for the granting of
interim relief, and the relief relevant to
this case and on which the
applicant relies is contained in section 114 (1) (b), (c) and (d).
In terms of subsection (b)
a complainant might apply for an
interim order alleging that it is reasonably necessary to prevent
serious irreparable damage,
or to prevent the purposes of this Act
being frustrated. In terms of subsection (c) an order may be
granted after the respondent
had been given a reasonable opportunity
to be heard, having regard to the urgency of the proceedings; and in
terms of subsection
(d) the balance of convenience should favour the
granting of the order. Subsection (2) provides that an order
granted in
terms of this section may not extend beyond the earlier of
(a) the conclusion of the hearing of the application or complaint; or
(b) the date that is six months after the date of the issue of the
interim order. Subsection (3) provides that if an interim
order
has been granted and the hearing into that matter has not been
concluded within six months after the date of that order,
the court
or tribunal, on good cause shown, may extend the interim order for a
further period not exceeding six months.
[25]
Regarding
the first requirement for interdictory relief, it
is the applicant’s case that it disputes that it breached the
agreement
between it and the respondent, and that the respondent due
to an event of default, justified to invoke clause 5.2 of the
agreement.
The applicant contends that the manner in which the
respondent invoked its discretion under clause 5.2 was not reasonable
or fair. Furthermore, the applicant contends that the
respondent did not act fairly or reasonable in exercising its
contractual
powers, which it is compelled to do in terms of sections
48 and 51 (1) of the CPA.
[26]
According to the applicant, as mentioned earlier, it cannot be
reasonable or appropriate for the respondent
to take the applicant’s
business away, simply because it regards itself as having been
insulted by the applicant in letters
the applicant had written to
other parties. It was drastic action that was disproportionate
to the alleged breaches upon
which it relies.
[27]
The respondent and the other hand submits that it exercised its
contractual powers, which are undisputed.
An interdict is aimed
at preventing illegitimate and unlawful activities. It would
impermissibly interfere with the
respondent’s undisputed rights
and legitimate actions, and decisions it needs to take on an almost
daily basis.
[28]
The respondent further submits that the applicant’s prima facie
right can derive solely from its allegation
that the respondent’s
conduct was prohibited by the CPA as being unfair, unjust or
unreasonable in the particular circumstances.
Evaluation:
[29]
In my view, the conduct which the respondent alleges constituted an
event of default in terms of clause 35.
2, and in particular as
described in clause 35.2.6, may very well lead to an event of
default, given the nature of the allegations
the applicant made in
the letters it addressed to the Franchise Council and the independent
drivers mentioned, which portrays the
respondent’s conduct as
callous, unjust, intimidating and unreasonable, without appraising
the recipients of the letters
of the full facts as to the dispute
between them. Whether this can be regarded as a breach of the
agreement is not for this
court to decide, and it remains a dispute
between the parties.
[30]
I also agree with the respondent that the interdict would interfere
with its contractual rights, especially
with regards to the
provisions of clause 5.2, which gives it the right, when
circumstances arise, to have another franchisee perform
services in
the protected area, or for the respondent to do so itself. The
issue the applicant complains of in this matter,
however, is firstly
the manner in which, and the circumstances under which, the
provisions of clause 5.2 is to be exercised, which
the applicant
submits will in this case be disproportionate to the breach it has
allegedly committed. Secondly, and more importantly,
the interference
with those contractual rights of the respondent based on the terms of
clause 5.2 is justified because it cannot
be regarded as fair and
reasonable.
[31] In
my view, the applicant has satisfied this court that it has a prima
facie right given the circumstances
and the manner in which the
respondent has exercised its contractual rights in terms of the
provisions of clause 5.2. The
question whether the provisions
of clause 5.2 are inconsistent with the provisions of the CPA is also
for another forum to decide.
Especially whether the provision
is not in compliance with section 48 and the referred to provisions
of section 51(1) of
the CPA.
[32]
It is my
prima facie
view that a court may well come to the
conclusion that the provisions of clause 5.2 are unfair and
overbroad, as it gives a franchisor
the power to seize and reduce the
areas of operation, and the volume and size of a business operation,
of a franchisee, for any
reason or, at the very least, for reasons
that cannot be properly justified. In my view, the right that
the applicant has
to establish has been explained in
Webster v
Mitchell
1948 (1) SA 1186
(W), at 1189, to be the following:
‘[T]he right to be set up by an applicant for a temporary
interdict need not be shown
by a balance of probabilities. If
it is “
prima facie
established though open to some
doubt” that is enough.’
[33]
It is also my
prima
facie
view that the respondent, by seizing the order volumes without a
court order, may have have acted unlawfully and, secondly, may
have
acted in breach of section 51(1)(i)(i)
[5]
of the CPA.
[34]
Although there is a dispute as to the basis upon which the applicant
contends that it still has rights in
terms of the agreement, it seems
that the parties are in agreement that the applicant still has such
rights, although the respondent
argues that certain of the rights
have been limited or have fallen away, due to the applicant’s
past conduct. The respondent
submits that, at the very least,
in terms of clause 5.1.3 the applicant had rights in terms of this
contract, which it legitimately
exercised, but as a result of an
event of breach, in terms of 35.2.6, the respondent was entitled to
take those rights away from
the applicant in the manner it did.
[35]
The respondent does not say anything about the fact that it exercised
its right in terms of the agreement
in a heavy-handed and arbitrary
manner, when on the evening of 30 April 2021 it arrived at the
applicant’s place of business,
seized the order volumes (goods)
that the applicant was supposed to deliver to some customers in terms
of the agreement, without
an appropriate court order. This
conduct amounted to unjustifiable self-help, no matter how egregious
and defamatory the
applicant’s conduct was
[6]
.
Nowhere in the agreement is such conduct explicitly permitted.
And even if it were, it would
prima
facie
be a direct contravention of section 51 (1) (i) (i)
[7]
of the CPA. The respondent contends, it seems, that it is
entitled to do so in terms of the agreement. It then begs
the
question whether, if the terms of the agreement permit the respondent
to act in this manner, the terms of the agreement can
be regarded as
fair, reasonable and just, in terms of the provisions of section 48
of the CPA.
[36]
In my view, on the circumstances and the facts of this case, the
applicant made out a
prima facie
case that the terms of the
agreement, as well as the conduct of the respondent, are unfair,
unreasonable and unjust. That
being the case, in my view, the
agreement is
prima facie
unlawful, subject to another court
coming to a final conclusion in this regard.
[37]
I am also satisfied that the applicant has shown a well-grounded
apprehension of irreparable harm if the
interim interdict is not
granted. It is not disputed that the applicant’s business
is suffering, and will suffer further,
should the interim relief not
be granted, mainly because some of the order volumes (goods) that was
in the possession of the applicant,
which applicant had to deliver to
customers, were seized by respondent. The respondent’s
only answer to this was that
it was because of the business
relationship between itself and the applicant, that the applicant was
in a position to conduct its
own business, which means the
applicant’s business is entirely dependent on the respondent’s
business, and any conduct
on the part of the respondent will directly
interfere with the applicant’s business.
[38]
I am furthermore satisfied that the balance of convenience favours
the applicant. The respondent will
not be unduly prejudiced
should the interim relief be granted. The only point that the
respondent raises in this regard is
that it would be embarrassing and
unbearable to continue to conduct business with the applicant, which
will lead to an uncomfortable
and stressed business relationship
between them, given the applicant’s conduct. This, in my
view, is not enough reason
for the balance of convenience not to
favour the applicant.
[39]
Regarding the question whether the applicant has any other
satisfactory remedy, the respondent submits that
in terms of clause
38.2 of the agreement, in the case of a dispute between the parties,
such shall be determined by an independent
expert (who shall act as
an expert and not as an arbitrator) appointed in terms of this
clause. The clause further provides
that only the respondent
has a discretion to elect whether it would make use of an expert as
contemplated in clause 38.2. If
the respondent does not elect
to appoint an expert, the matter shall be referred for arbitration in
terms of the provisions of
clause 39.2.
[40]
In my view, the relief the applicant seeks could not have been
resolved by any means other than seeking urgent
interim relief, given
the nature of the allegations against the respondent (that it is
unfair, unreasonable and unjust). Also,
that
prima
facie
the terms of the agreement, especially clause 5.2, are inconsistent
with the provisions of sections 48 and 51 (1) (i) (i)
[8]
of the CPA. Furthermore, the applicant also relies on the
provisions of section 114 of the CPA, which only a court can grant.
[41]
In the result therefore, I am satisfied that the applicant has
satisfied the requirements for urgent interim
relief. In
granting the relief, the provisions of section 114 (3) of the CPA
must be considered, which provides that the
hearing of the matter
must be concluded within six months of the date of the order, which
may only be extended, on good cause shown,
for a further period not
exceeding six months. Any order of the court must be cognisant
of these provisions. Furthermore,
it must be emphasised that
the order should not prevent the respondent from lawfully exercising
its rights in terms of this agreement,
under circumstances other than
those which justified the granting of this interim order.
I
therefore make the following order:
1.
Pending the finalisation
of proceedings instituted at the National
Consumer Commission, alternatively, in the Western Cape Division of
the High Court
,
the respondent be interdicted from exercising
its rights under clause 35.3.2, read with clause 5.2, of
the franchise
agreement concluded between the applicant and the
respondent and dated 29 October 2018 (the “
franchise
agreement
”) in reliance upon the applicant’s
communication to the Franchise Council, dated 31 March 2021,
and to the
independent contract drivers, dated 6 April 2021,
and the related WhatsApp messages, as more fully described in
paragraph 5.2.12
of the respondent’s answering affidavit;
2.
The respondent is to restore
the applicant’s business to the
position in which it existed prior to the respondent’s exercise
of its rights under
clause 35.3.2, read with clause 5.2, of
the franchise agreement on 30 April 2021;
3.
The applicant is ordered
to institute proceedings against the
respondent at the National Consumer Commission, alternatively in the
Western Cape Division
of the High Court, within 10 days from the date
of this order, failing which the interim interdict granted in favour
of the applicant
is to be discharged with costs;
4.
The respondent is to pay
the costs of the application, including the
cost of two counsel, where so employed.
R.C.A.
HENNEY
Judge
of the High Court
[1]
[2003] 4 All SA 103 (SCA).
[2]
Roman
numeral one.
[3]
Government Notice No. R293 of 1 April 2011 in Government Gazette
No.34180 of 1 April 2011, regulation 2 (2) (b) (ii)-(iii) and
2 (2)
(e).
[4]
Van Loggerenberg & Bertelsmann:
Erasmus:
Superior Court Practice
,
at RS 15, 2020, D16A-16B.
[5]
Roman numeral one.
[6]
Bock para 7.
[7]
Roman
numeral one.
[8]
Roman
numeral one.