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[2015] ZAGPJHC 292
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Panayiotou v Shoprite Checkers (Pty) Ltd and Others (2014/26048) [2015] ZAGPJHC 292; 2016 (3) SA 110 (GJ) (17 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO 2014/26048
DATE: 17 DECEMBER 2015
PANAYIOTOU,
ANDREAS
...............................................................................................
APPLICANT
AND
SHOPRITE CHECKERS (PTY)
LTD
.............................................................
FIRST
RESPONDENT
GAUTENG LIQUOR
BOARD
....................................................................
SECOND
RESPONDENT
CHAIRPERSON, GAUTENG LIQUOR
BOARD
........................................
THIRD
RESPONDENT
REASONS FOR JUDGMENT
Headnote
Section 16, 17 and 18 of
Superior
Courts Act 10 of 2013
– what constitutes the lodging of a
petition to the SCA that shall have the effect of suspending the
operation of a judgment
– once the prescribed one month from
date of refusal of leave to appeal has lapsed, condonation is
required to revive the
appeal process – an application for
condonation to serve a petition late does not have the effect of
suspending the operation
of a judgment.
Applicant had unsuccessfully opposed a
review of a liquor board decision which had refused a trade rival a
liquor licence- court
ordering liquor board to issue licence –
applicant having been refused leave to appeal and wished to petition
SCA –
not doing so within prescribed period and thus seeking
condonation – pending outcome of condonation application to SCA
applicant
sought an interdict to prevent rival from trading in terms
of the licence issued to it.
Held: no prima facie right to stop
rival trading as operation of judgment not suspended –
application dismissed
SUTHERLAND J:
1. The applicant, the proprietor of a
liquor store, brought an urgent application seeking interdictory
relief against the first
respondent (Shoprite) from operating a
liquor store from its premises some 150 metres distant from his shop.
I heard the matter
on 10 December 2015 in the urgent court and
dismissed the application with costs. The reasons for that order are
now furnished.
2. The facts are few. The applicant was
already trading when Shoprite arrived in the neighbourhood and
applied to the second respondent
(GLB) for a liquor licence. The
applicant opposed the application and in due course the GLB refused
it. Shoprite brought a review
application which succeeded. The
refusal was set aside and Legodi J ordered the GLB to issue a licence
in accordance with the regulations.
The applicant remained aggrieved,
and instructed his attorney to apply for leave to appeal that
decision. In due course the application
for leave to appeal was
refused. The applicant then instructed his attorney to file a
petition to the Supreme Court of appeal to
obtain leave to appeal.
3. Apparently, the applicant’s
attorney served a copy of such petition on Shoprite, about a week
after the application for
leave had been refused by Legodi J.
However, no service of the petition was served on the GLB. More
significantly, the petition
was not served on the registrar of the
Supreme Court of Appeal. During the period prescribed for service of
a petition, on two
occasions the attorneys of Shoprite wrote to the
applicant’s attorney asking for proof of service on the
registrar of the
Supreme Court of Appeal and to be given a case
number. The requests were ignored. Axiomatically, the GLB were
ignorant of the applicant’s
intentions.
4. The day after the period in which to
serve a petition expired, the GLB issued Shoprite with a licence.
After that Shoprite undertook
the necessary preparatory steps to
commence trading, including self-evidently, deploying staff, and
buying stock. When the activity
at the Shoprite store was noticed by
the applicant, he tackled the attorney about why this was happening,
as it was his understanding
that pending the outcome of a petition,
the review judgment, setting aside the GLB refusal of a licence was
suspended. It was at
this stage that he learned of the fact that no
petition had been served.
5. Predictably, the applicant fired
that attorney. He instructed a new attorney, who thereupon served a
petition together with an
application for condonation of the late
filing of the petition. At the time of the hearing before me, the
fate of that condonation
application and the fate of the petition is
awaited.
6. The applicant then brought the
urgent application. The relief sought is an interim interdict against
Shoprite from trading in
liquor pending the determination of the
petition and the finalisation of the appeal process. Moreover, the
court is asked to order
the suspension of the liquor licence, pending
the same eventualities.
7. The premise of the application is
that the applicant has, at least, a prima facie right based on the
pending petition. The harm
is said to be the loss of trade;
apparently since Shoprite began to trade his turnover has dropped by
70% and his business is facing
insolvency.
8. The application must fail because
the very premise upon which it is founded is misconceived; ie, as a
matter of fact and of law,
there is no present petition filed with
the registrar of the Supreme Court of Appeal, as required in terms of
section 18(5)
of the
Superior Courts Act 10 of 2013
.
9.
Section 18
, the provisions of which
bear on the conditions necessary for a judgment of the High court to
be suspended pending a petition to
the Supreme Court of appeal for
leave to appeal, states:
‘(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.
10.
Section 17(2)
provides:
‘(2) (a) Leave to appeal may be
granted by the judge or judges against whose decision an appeal is to
be made or, if not readily
available, by any other judge or judges of
the same court or Division.
(b) If leave to appeal in terms of
paragraph (a) is refused, it may be granted by the Supreme Court of
Appeal on application filed
with the registrar of that court within
one month after such refusal, or such longer period as may on good
cause be allowed, and
the Supreme Court of Appeal may vary any order
as to costs made by the judge or judges concerned in refusing leave.
(c) An application referred to in
paragraph (b) must be considered by two judges of the Supreme Court
of Appeal designated by the
President of the Supreme Court of Appeal
and, in the case of a difference of opinion, also by the President of
the Supreme Court
of Appeal or any other judge of the Supreme Court
of Appeal likewise designated.
(d) The judges considering an
application referred to in paragraph (b) may dispose of the
application without the hearing of oral
argument, but may, if they
are of the opinion that the circumstances so require, order that it
be argued before them at a time
and place appointed, and may, whether
or not they have so ordered, grant or refuse the application or refer
it to the court for
consideration.
(e) Where an application has been
referred to the court in terms of paragraph (d), the court may
thereupon grant or refuse it.
(f) The decision of the majority of the
judges considering an application referred to in paragraph (b), or
the decision of the court,
as the case may be, to grant or refuse the
application shall be final: Provided that the President of the
Supreme Court of Appeal
may in exceptional circumstances, whether of
his or her own accord or on application filed within one month of the
decision, refer
the decision to the court for reconsideration and, if
necessary, variation.’
11. The question arises as to what are
the minimum requirements to satisfy
section 18(5)
read with
section
17(2).
Is it necessary that the petition itself be served, or is
sufficient that a condonation application be served in which it is
sought
that a petition be filed out of the prescribed time period?
12. It has been argued that
Section
18(5)
is prescriptive and that the text emphasises that the
application for leave to appeal is lodged with the registrar’
in terms
of the rules’. Accordingly, it is argued, until (and
only if) condonation is granted can the petition be ‘lodged’.
All that is before the Supreme Court of appeal at present is an
application for condonation, whose fate is uncertain. In support
of
this proposition reference was made to several authorities.
13. The failure to serve notices of
appeal or court records within the prescribed periods is commonplace.
The result of such failures
are that the appeals lapse and require
condonation to revive them. In Schmidt v Theron & another
1991
(3) SA 126
(C), at 129H – 130 it was held:
‘Rhoodie denied that his
application for condonation was activated by the present application.
He added that he had acted
in utmost good faith throughout, that it
was never his intention to cause any delay in the pursuance of the
appeal and that the
first and second respondents were totally
blameless and he personally and unequivocally accepted full
responsibility for all that
had taken place.
I think it is quite clear from a number
of authorities that a failure to comply with the provisions of Rules
5 and 6 of the Appellate
Division Rules causes an appeal to lapse.
See Vivier v Winter; Bowkett v Winter
1942 AD 25
and 26, Bezuidenhout
v Dippenaar
1943 AD 190
, United Plant Hire (Pty) Ltd v Hills and
Others
1976 (2) SA 697
(D) at 699H, Moraliswani v Mamili
1989 (4) SA
1
(A) at 8B - C. Indeed Rule of Court 5(4) specifically provides -
and I quote from Rule 5(4)bis (b): 'If an appellant has failed
to
lodge the record within the period prescribed and has not within that
period applied to the respondent or his attorney for consent
to an
extension thereof, and given notice to the Registrar that he has so
applied, he shall be deemed to have withdrawn his appeal.'
The appeal having so lapsed, an
application for condonation in terms of Appellate Division Rule 13 is
required if an appellant who
has failed to comply with the Rules
wishes to revive or reinstate it. As stated by Kumleben J in the
United Plant Hire case supra
at 699H, in reference to the two cases
to which I have also referred, viz Vivier v Winter and Bezuidenhout v
Dippenaar: 'Thus,
in these two cases it was held:
(a) that, although not expressly so
stated in the former Rules, an appeal lapses on failure to comply
with the requirements of
either the former Rules relating to the
lodging of copies of the record or security for the costs of an
appeal;
(b) that an appellant may nevertheless
apply for condonation in terms of the former Rule 12 even after an
appeal has lapsed (strictly
speaking in such a case it may be more
accurate for an appellant to apply for condonation of non-compliance
with a particular Rule
and for enrolment or reinstatement of the
appeal).'
I emphasise the word 'reinstatement'.
And in the Moraliswani v Mamili case supra Grosskopf JA, referring to
the cases that I have
cited above, and adding to them also the cases
of Waikiwi Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd
1981 (1) SA 1040
(A) at 1049B - C and S v Adonis
1982 (4) SA 901
(A)
at 907F - G which both deal with the related subject of an
appellant's failure to file the record in time, said:
'Indeed there is strong authority for
the proposition that failure to comply with Rule 6 causes an appeal
to lapse and that condonation
by this Court is needed to revive it.'
I emphasise again the words 'needed to
revive'.
The position therefore is that in the
present case the appeal has lapsed. No condonation in terms of the
Appellate Division Rule
13 has been granted and accordingly the order
made by this Court on 22 October 1990 is no longer suspended in terms
of Supreme
Court Rule 49(11). (See Herf v Germani
1978 (1) SA 440
(T)
at 449G.) Appellant is therefore entitled to the order sought in
prayer 1(a) and (b) of the notice of motion. It is the type
of order
envisaged by the Appellate Division in Vivier v Winter (supra at
26).’
14. Prior to the enactment of the
Superior Courts Act and
in particular,
sections 16
-
18
,
Rule 49
(11)
of the Uniform rules of court regulated this matter.
Rule 49
(11) was
deleted from the Rules on 17 April 2015 (GN 317). Addressing the
provisions of that rule, it was held in Modderklip Squatters
v
Modderklip Boerdery (Pty) Ltd; President of RSA v Modderklip
Boerdery (Pty) Ltd
2004 (5) SA 40
(SCA) at [46]:
‘The [argument] was based on
Uniform
Rule 49(11)
, which provides that, where an appeal has been
noted or an application for leave to appeal made, the operation and
execution of
the order is suspended. In this case, as will appear
soon in more detail, the 'Modder East Squatters' lodged their
application
for leave to appeal together with an application for
condonation some 18 months after the order had issued. The right to
apply
for leave to appeal, by then, had lapsed.
Rule 49(11)
presupposes a valid application for leave to appeal to effect the
suspension of an order. In this case, there was none.’
15. The inherent logic of the position
is unassailable. It can be tested by asking what were to happen if
many months or years
were to pass before an application for
condonation is lodged. It is untenable that upon the service of a
condonation application
the judgment would then be suspended.
Accordingly, the application fails for want of even a prima facie
right that the judgment
of Legodi J be suspended.
16. Moreover, the circumstances that
prevail at this time include the fact that the GLB has issued a
licence. Shoprite is entitled
to exercise its rights in terms
thereof. It seems as if the GLB waited until it was certain no
petition could be lodged before
complying itself with the court
order. That exercise of public power has resulted in the conferment
of rights. Until that order
is set aside it stands. (Oudekraal
Estates (Pty) Ltd v City of Cape Town 2004(6) SA 222 (SCA).)
17. There are other considerations
bearing on the balance of convenience which in any event defeat the
application. Shoprite has
taken further steps, legitimately, to gear
up for business. To be told to cease suddenly, and wait until a
condonation application
is disposed of, which may be many months’
hence, is plainly inequitable and disproportionally disruptive. The
applicant’s
position is that he shall have to compete with
Shoprite. No consideration of public policy can be invoked to
construe that to be
a harm deserving of protection in the context of
these circumstances.
18. It was for these reasons that the
order made was that the application be dismissed with costs.
Roland Sutherland
Judge of the High Court,
Gauteng Local Division, Johannesburg
Hearing and order: 10 December 2015
Reasons filed: 17 December 2015
For the applicant: Adv S Rose,
Instructed by Polson & Ross
For the First Respondent: Adv R B
Engela,
Instructed by Werksmans Attorneys.