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[2010] ZAGPJHC 77
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Kelly Group Limited and Another v Solly Tshiki & Associates (SA) (Pty) Ltd and Others (2010/5594) [2010] ZAGPJHC 77; 2010 (5) SA 224 (GSJ) (11 March 2010)
IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER : 2010/5594
DATE: 11/03/2010
In the matter between
KELLY GROUP LIMITED
First Applicant
WORKFORCE MANAGEMENT (PTY) LTD
Second Applicant
and
SOLLY TSHIKI & ASSOCIATES (SA) (PTY) LTD
First Respondent
TSHIKI, SOLLY
Second Respondent
SICKLE, BRIAN
Third Respondent
THE SOUTH AFRICA POST OFFICE LIMITED
Fourth Respondent
THE EMPLOYEES OF THE SECOND APPLICANT
Fifth Respondent
JUDGMENT
André Gautschi AJ
The
first applicant's predecessor and the first respondent formed a
joint venture in about 2001 in terms of which they agreed
to pursue
the opportunities of placing "temporary labour" with the
fourth respondent (The South Africa Post Office
Limited – "the
Post Office") which they did through the vehicle of the second
applicant (Workforce Management
(Pty) Ltd – "Workforce").
I shall refer to the first applicant and its predecessors
interchangeably as "Kelly"
and to the first respondent as
"STA". The person behind STA is Mr Solly Tshiki ("Solly
Tshiki" or "Tshiki").
Kelly
has at all times been considered as an expert in the provision and
administration of personnel recruitment services, with
the necessary
expertise to do so effectively and efficiently. The expertise and
experience of STA relates to the general management,
marketing and
sale of temporary personnel recruitment services. In addition, it
seems that STA, as a BEE company, had the necessary
entrée
with the Post Office.
There
is a dispute as to whether Kelly had brought into the joint venture
its "core workforce", which had until then
been contracted
to Kelly, which had trained it, and paid for such training.
According to the respondents, the workforce (several
hundred persons
working for the Post Office in the Western Cape) were already
"employed" by the Post Office and had
at some stage in the
past been turned from permanent employees of the Post Office into
temporary employees placed by labour brokers.
It is not necessary
that I resolve this dispute.
In
September 2003, but backdated to 1 February 2001, Kelly and STA
concluded a written shareholders' agreement to govern their
relationship. The relevant material terms for purposes of this
application are the following :
4.1
Clause 1.2.2
"1. In this agreement –
. . .
1.2.2 the following expressions shall bear the meanings
assigned to them hereunder and related expressions shall bear
corresponding
meanings –
. . .
1.2.2.12 'SAPO contract' - the contract awarded to the
company [Workforce] by the South African Post Office Limited ('SAPO')
in
terms of which the company supplies temporary employees to the
SAPO pursuant to a labour brokerage agreement."
4.2
Clause 2
"2.1 It is recorded that LO [LogicalOptions (Pty)
Ltd, now Kelly] has procured the incorporation and registration of a
limited
liability company in accordance with the laws of the RSA.
2.2 As soon as possible after the signature date, the
parties shall procure that -
2.2.1 the financial year end of the company shall be 30
September;
2.2.2 the company shall have as its principal object
and main business the provision of human resource services and
personnel recruitment
services in respect of temporary placement of
staff within the territory. "
4.3
Clause 4
"As soon as possible after the signature date, the
parties shall procure that the entire issued share capital of the
company
is held as to 49% by LO and 51 % by Tshiki [STA] and shall do
all such things, pass all such resolutions and sign all such
documents
as may be required to give effect to the foregoing."
4.4
Clause 5
"5.1 The shareholders undertake that they will
promote and maintain the interests of the company in the territory
and will
exercise the utmost good faith towards each other. Without
departing from the generality of the foregoing -
5.1.1 the shareholders undertake and agree that they
will not misinform each other as to any matter or thing in relation
to the
company or its business or withhold any material information
coming to their knowledge in regard to the affairs of the company;
5.1.2 LO and Tshiki undertake and agree that they shall
use their best endeavours to procure business for the company; and
5.1.3 at the election of the board, LO will make
available to the company, on such terms and conditions as may be
agreed to by
LO and the board such management resources and debtor
factoring as may reasonably be required to carry on the business.
5.2 For the sake of clarity, nothing contained in this
agreement shall in any way restrict the shareholders from the conduct
of
their businesses, including any business that competes with the
company."
4.5
Clause 8
"8.1 It is recorded that -
8.1.1 LO has expertise and experience in the provision
and administration of personnel recruitment services;
8.1.2 Tshiki has expertise and experience in general
management, marketing and sales in respect of temporary personnel
recruitment
services.
8.2 The shareholders shall procure that resources shall
be provided to the company (by way of subcontracts or otherwise) in
order
to enable it to perform work under the contracts which are
awarded to it, by the shareholders in accordance with their expertise
and experience as set out in 8.1 and otherwise in such manner as the
board from time to time determines is appropriate. "
4.6
Clause 13.8
"The shareholders shall procure that none of the
directors, officers or employees of the company will have authority
to bind
or commit the company to any of the following resolutions or
transactions, nor will the shareholders or their nominees take any
steps of any nature to approve, authorise or permit the company to
become bound or committed to any such resolution or transaction,
unless such resolution or transaction will have been approved in
advance, in writing, by shareholders representing 80% of the total
effective shareholder in the company –
. . .
13.8 the diversification by the company into any other
business;"
4.7
Clause 16.5
"It is recorded and agreed that -
16.5.1 the company's sole source of income is the SAPO
contract;
16.5.2 in the event that the company should lose the
SAPO contract or should the SAPO fail to renew the contract
(collectively
referred to as 'a termination event'), the basis for
the existence of the company will ceased. Then and in such an event
the parties
agree to proceed as provided for in 16.6."
4.8
Clause 16.6
"Upon the happening of a termination event, the
parties agree as follows -
16.6.1 no further contracts will be transacted through
the company;
16.6.2 the management of the company will continue to
collect the debtors of the company and the company will discharge the
liabilities
of the company as and when they fall due. To the extent
that insufficient cash resources are available to the company to
discharge
such liabilities, the shareholders shall, notwithstanding
anything to the contrary to the provisions of 7, be obliged to lend
to
the company the funds necessary to effect such payments.
16.6.3 Upon the discharge of all the company's
liabilities and the collection of all its debtors (after having taken
into account
any write-offs) in accordance with 16.6.2, LogOpt
[Kelly] shall by written notice ('call notice') to Tshiki oblige
Tshiki to sell
to LogOpt and LogOpt shall accordingly purchase with
effect from the date of the call notice ('call date') all of the
ordinary
shares held by Tshiki in the company ('call shares'), which
shall sell same.
16.6.4 …
16.6.5 …
16.6.6 …
16.6.7 …"
4.9
Clause 19
"19.1 Save as may otherwise be provided in this
agreement, should any party ('defaulting party') commit a breach of
any provision
of this agreement and fail to remedy such breach within
thirty days of receiving written notice from any other party
('aggrieved
party') requiring it to do so, then the aggrieved party
shall be entitled, without prejudice to its other rights under this
agreement
or in law, to claim immediate specific performance of all
of the defaulting party's obligations whether or not due for
performance,
in either event without prejudice to the aggrieved
party's right to claim damages.
19.2 Notwithstanding anything to the contrary contained
in this agreement, neither party shall in any circumstances be
entitled
to cancel this agreement.
4.10
Clause 22.2
"No party shall be bound by any representation,
express or implied term, warranty, promise or the like not recorded
herein
or reduced to writing and signed by the parties or their
representatives."
It
will be seen from these clauses that at that time Workforce's only
initial reason for existence was the work it supplied to
the Post
Office.
Services
were rendered by the joint venture to the Post Office from 2001
onwards and, once the shareholders' agreement was concluded,
Workforce was the vehicle used by the joint venture for this
purposes. As can be seen from clause 4 of the shareholders'
agreement,
STA held 51% of the shares in Workforce, and Kelly 49%.
The
nature of the contract between Workforce and the Post Office seems
somewhat notional. I accept for purposes of this application
that
the Post Office as a matter of fact used Workforce consistently and
extensively to supply temporary labour to it, but there
was no
contract which the Post Office had entered into with Workforce which
obliged it to do so.
Kelly
performed all the office and payroll administration services
required by Workforce in regard to the supply of labour to
the Post
Office.
The
following is a summary of the way in which labour was placed and
payment was made. The Post Office would place orders in
regard to
the placement of temporary staff a week in advance. The employees
thus employed would complete manual timesheets,
which were approved
and signed off by relevant officials of the Post Office and then
collected by Workforce in Cape Town. The
information would then be
captured by Workforce on a computer system maintained by Kelly in
Sandton. Between Kelly and Workforce
they would compile reports as
to what amount was owed by the Post Office. In addition, a payslip
would be made for each individual
employee and Kelly would pay the
employee accordingly. An invoice would then be submitted to the Post
Office for payment and
payment collected from it. From this it can
be seen that bridging finance was required by Workforce, which is
said to be some
R3.2 million over every given two month period.
From
the beginning of October 2009, the Post Office placed an order on
STA for the provision of the temporary staff which until
then had
been provided by Workforce, and STA advised Workforce that it
(Workforce) was with effect from 16 October 2009 no longer
required
to provide back office services for the Post Office. There was
thereafter an exchange of correspondence, in which Kelly
demanded
that Workforce be allowed to continue with its business and
operations, and STA took up the position that it was entitled
to
compete with Workforce.
Kelly
launched an urgent application which came before Spilg J on 22
October 2009. The order granted was essentially a
rule nisi
(to operate as interim relief pending a referral of the disputes to
arbitration) directing the respondents (at that time STA,
Workforce
and three other Solly Tshiki corporate entities) to deliver the time
sheets to the applicants, and to render assistance
to Workforce
and/or Kelly so as to ensure timeous payment of salaries due to the
employees; and furthermore interdicting and
restraining the Solly
Tshiki respondents from interfering with and/or frustrating Kelly in
the fulfilment and execution by it
of the services it provided to
Workforce, not limited to back office services and payroll
administration. At that time Kelly
was the only applicant, no doubt
because Kelly had only a 49% interest in Workforce and therefore did
not have a controlling
shareholding. Later Workforce was to feature
as an applicant, apparently on some derivative basis.
There
was then some difficulty with the time sheets furnished by STA to
Kelly in that they had been so compiled that Kelly was
unable to
fulfil the back office obligations which it owed to Workforce.
Accordingly,
on 23 October 2009 Kelly approached Spilg J again. The result
was a refinement of the order with regard to
the time sheet
information to be furnished to Kelly and the widening of the
interdict against interference and/or frustration
to certain other
respondents. The balance of the relief granted is not immediately
relevant to this application.
Time
sheets were continued to be made out in the name of STA, and
accordingly a further application was launched, which resulted
in a
series of undertakings being recorded in an order of court on 2
December 2009.
On
7 December 2009 Kelly launched an urgent application to interdict
STA from using the employees of Workforce for the purposes
of
tendering to and obtaining orders from the Post Office. On 10
December 2009 Kgomo J granted a
rule nisi
(to operate as
an interim interdict) restraining the relevant respondents from, in
essence, competing with Workforce.
On
14 December 2009 Kelly launched a further
application
in which it sought to interdict the Post Office from making payment
to STA arising from the placement of temporary staff and
employees
during the period October 2009 to 11 December 2009. The relief
sought was granted by Mathopo J.
The
matter then came before Willis J on the return day (or extended
return day in some cases) of the
rules
nisi
issued. He was concerned only
with the two orders granted by Spilg J and the order granted by
Kgomo J. Willis J
discharged the
rules
nisi
and the interim and provisional
orders, dismissed the
application
s
and ordered Kelly to pay the costs,
including
the costs of two counsel as well as all reserved costs to date. In
his judgment, Willis J assumed without deciding, that
STA is in
breach of the
shareholder
s' agreement. He
found that Kelly did not have a clear right to the relief which it
sought, and that there was an adequate alternative
remedy in the
form of a claim for damages. He also exercised his discretion
against Kelly. An
application
for leave to appeal was delivered against the judgment and order of
Willis J. Whilst waiting for that
application
to be heard, the present
application
was launched. The relief sought, summarised, is the following :
interdicting
and restraining STA, Tshiki and Sickle (formerly a director of
Workforce, and later a director of STA) from interfering
with
Kelly's back office services and payroll administration work;
utilising or engaging the services of the employees in rendering
services to the Post Office; coercing and/or soliciting the
services of the employees to render services to the Post Office;
utilising the infrastructure, processes and systems of Workforce
for any purpose other than those of Workforce (prayer 2);
that
the relief in prayer 2 operates as an interim interdict pending the
final outcome of an appeal against the orders and judgment
of
Willis J (prayer 3);
directing
that the
rules nisi
granted by Spilg J on 22 and 23
October 2009 and by Kgomo J on 10 December 2009 "be
revived and/or continue
to stand and/or operate pending the outcome
of the appeal ..." (prayer 4).
The
application for leave to appeal before Willis J was to be heard
the day after this application was heard. Although there
was some
suggestion in the papers that this application should have waited
for that application, that point was not taken in
argument before
me. Even assuming that the granting of leave to appeal might affect
the outcome of this application, that is
not to say that the refusal
of leave to appeal would operate to the contrary, because Kelly
would be entitled to seek leave to
appeal from the Supreme Court of
Appeal, the result of which will only be known after this judgment
has been handed down. I
think that the proper approach is to assume
that leave to appeal will be granted.
It
is by now established that an
application
for leave to appeal or the noting of an appeal does not revive an
interim order which has been discharged
1
.
It is therefore incumbent upon the applicant whose interim order
(with or without a
rule nisi
)
was discharged, to bring a further
application
for an interim interdict pending the outcome of any appeal, should
it so desire.
There
is authority for the proposition that where the court holds that the
applicant made out no case for an interim interdict,
that would by
definition preclude the applicant from obtaining an interim
interdict pending an appeal against that order. In
Constantinides
v Jockey Club of
South Africa
2
,
the applicant applied for an interim interdict, but the parties
agreed that if the court should find that the applicant was
entitled
to a final order, it should grant a final interdict. Herbstein J
held as follows
3
:
"On the main
application I held
that the applicant made out no case for an interdict. It seems to me
that I would be stultifying myself and
frustrating that judgment if I
now held that the applicant is entitled to an interim interdict
pending the decision on the appeal"
Herbstein J referred to an unreported judgment of Murray J
Anschutz v Jockey Club of SA
4
.
The case involved the withdrawal of Anschutz's trainer's license by
the Jockey Club. Anschutz applied for a temporary interdict
restraining the Jockey Club from putting such withdrawal into
operation pending a decision by the court. Murray J came to
conclusion that the
application
had to be
dismissed and the
rule nisi
operating as a temporary interdict
discharged. He was then asked to grant a fresh interdict restraining
the
respondent
pending the hearing of an
appeal. Herbstein J then continues as follows
5
:
"His lordship came to the conclusion that as he had
held that the applicant had no right at all, he must act on that
judgment
despite the fact that a different opinion might eventually
be held by the Appeal Court. I adopt that statement as applicable to
the present matter before me.
. . . .
This Court has held that the applicant has shown neither
a clear right nor a
prima facie
right. If the applicant
failed to do that in the main
application
then, in equal measure, he must be held to have failed to show a
clear right or a
prima facie
right in the present
application
.
On that ground alone the Court would have to exercise its discretion
against the applicant. I agree with this submission [which
had been
made by counsel]."
See also
LAWSA
on Interdicts
6
:
". . . the noting of an appeal against an order
dismissing an application for a final interdict does not revive the
interim
interdict which was an adjunct to these proceedings, nor is
the court entitled to grant an interim interdict pending the appeal."
As authority for the latter proposition, the
Constantinides
case is cited.
I
do not believe that the mere fact that an interim interdict is
discharged on the return day, when the final interdict is
considered,
precludes the applicant from succeeding in obtaining an
interim interdict pending an appeal against that decision. I do
however
accept the correctness of the
Constantinides
decision, that if an
application
for an
interim interdict is refused, on the basis of a finding that no
prima facie
right has been established, the court is not
entitled to grant an interim interdict pending the appeal.
When
Willis J set aside the
rules nisi
and the interim and
provisional orders, he was concerned with a final interdict and
dismissed the applications on the basis that
the applicants were not
entitled to a final interdict. That does not in itself suggest that
the applicants had not met the test
for an interim interdict, and
Willis J made no finding in this regard. The fact that the
applicants are unable to establish
a clear right does not
per se
entail that they are unable to establish a
prima facie
right.
The
Constantinides
case is distinguishable because in that
case Herbstein J had found that the applicant had shown neither
a clear right nor
a
prima facie
right, and it is not in my
view authority for the blanket statement made in the passage quoted
above from
LAWSA
. Thus, it seems to me, the procedure
followed by the applicants in this matter is competent and, provided
they can establish
the elements of an interim interdict, and subject
to the exercise of my discretion, they would be entitled to relief.
The
applicants approached the matter on the basis that this was in
effect an application for leave to execute, and that the test
laid
down in
South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd
7
is applicable. It was also submitted that I should have regard to
the prospects of success on appeal and that if leave to appeal
were
granted, that would mean in effect that a
prima facie
case
had been established. I do not agree. One must in my view be
careful not to misconstrue the remedy sought and thereby
to apply an
incorrect test. This is not an application for leave to execute,
but the seeking of an interim interdict pending
an appeal. There is
a difference between the two, and the test for each is different.
It would also be wrong in my view to
equate reasonable prospects of
success on appeal with the establishment of a
prima facie
right for purposes of such an interim interdict. To do so would run
contrary to the proposition, which I accept, that if an
interim
interdict is refused, no interim interdict can be granted pending
the appeal. On the test proposed by the applicants
in this matter,
once leave to appeal is granted, an interim interdict should follow,
even if the court may have found that no
prima facie
right
had been established.
I
shall first address the
prima facie
right. It seems clear from the papers that the Post Office and the
employees have complete freedom of contract, so that the
Post Office
can decide which labour broker it wishes to employ from time to
time, and the employees may choose for which labour
broker they wish
to work from time to time. The applicants pitch their case entirely
on a breach of the shareholders' agreement,
and more
particular
ly
clause 5 thereof, which is quoted in paragraph [4] above. The
applicants' submission is that clause 5, read with the other
relevant clauses of the shareholders' agreement, makes it clear that
the sole
raison d'être
of the joint venture was, at least at that time, providing labour to
the Post Office, and that it would be absurd if either party
could
compete with Workforce in relation to the Post Office work.
Accordingly, clause 5.2 (which allows the shareholder unrestricted
conduct of their own
business
es
"
including
any
business
that competes with the company") "can only reasonably and
properly be interpreted to mean that each party may continue
with
its existing labour broking activities and with any contract that
was in place at the time that Workforce was formed, even
if such
business
was
with the Post Office, and, additionally, that each party may compete
in relation to any other contracts or
business
conducted by Workforce, save obviously for the specific Post Office
contract standing at the heart of the joint venture and the
shareholder
s agreement"
8
.
It was pointed out to me by
respondent
s'
counsel that, in the
application
before Kgomo J, the applicants contended for a tacit or implied
term to this effect.
Respondents'
counsel on the other hand contended that the wording of clause 5.2
was clear, that there is a prohibition in clause
22.2 against
reading any implied terms into the contract (this apparently does
not exclude tacit terms), and that clause 5.2
is not absurd if
regard is had to the fact that future business was envisaged for
Workforce, that is beyond merely servicing
the Post Office.
There
appears to be a tension between the provisions of clause 5.1 and
clause 5.2. Clause 5.1 requires utmost good faith, best
endeavours
to procure business for Workforce and the like. It seems anomalous
that clause 5.2 would then allow a shareholder
to compete directly
with Workforce.
Nevertheless
it seems to me that the applicants' contentions with regard to
clause 5.2 are untenable. First, any tacit term contended
for by
the applicants would be in conflict with the plain meaning of
clause 5.2. Secondly, what I am asked to do is not
so much to
construe clause 5.2, but to rewrite it. The wording of clause 5.2
is plain, and it allows the
shareholder
s
to conduct "any
business
that competes with the company". To qualify it as contended
for in paragraph 6 of the applicants'
heads
of argument
would change the meaning of
clause 5.2, and would entail a rewriting of the clause which, whilst
it would admittedly remove the
tension and any potential absurdity
between clauses 5.1 and 5.2, would in my view alter the intention of
the parties as expressed
in clause 5.2. The applicants' remedy
in my view lay in a rectification, which has not been advanced in
the
affidavit
s.
In
April 2003 the Post Office still recognised STA as a "vendor"
of the Post Office. The shareholders' agreement was
concluded in
September 2003, when STA would have been alive to the fact that it
was recognised as a vendor of the Post Office,
and it is not that
strange that it would have wished to preserve that part of its
business
, even
if it meant that it would compete with Workforce.
In
my view therefore Kelly and STA were entitled to compete with
Workforce in relation to the Post Office, and STA committed no
breach of contract. The applicants have in my view not established
a
prima facie
right in this regard.
Even
if I am wrong on the question of breach, there is still the question
of specific performance, for that is what the applicants
sought
before Willis J. Counsel for the applicants submitted that
there was no difficulty in granting such an order, for
it simply
meant instructing the
respondent
s
not to breach the terms of the shareholders' agreement by competing
unlawfully with Workforce. But the position is not that
simple as I
see it. Specific performance entails ultimately that the
shareholders' agreement be enforced, and that STA be obliged
to
comply with its obligations in terms thereof. The following
difficulties arise. In the first place, there is clearly a
quasi-partnership, if not a partnership, between Kelly and STA. A
partner is allowed unilaterally to dissolve the partnership,
despite
opposition, but subject to a claim for damages being available
against it
9
.
In the present case there is clearly a stand-off (I put it no
higher than that but it probably is higher) between Kelly and
STA.
By decreeing specific performance, a court would be forcing the
partners or quasi-partners to remain in the joint venture,
which is
not only against the principle just mentioned but also in my view
undesirable. A court would not easily grant such
specific
performance. Secondly, clause 5.1 of the shareholders' agreement
contains obligations which involve the exercise of
the utmost good
faith, using best endeavours to procure
business
for the company, and the like. Whilst such expressions would not
necessarily render the agreement void for vagueness (I make
no
finding in this regard), a court would not in my view readily decree
specific performance where such expressions are relevant.
A court
could not police or readily determine whether a party used his best
endeavours or acted in the utmost of good faith,
and for that reason
such clauses would not in my view be enforced by way of specific
performance. That, too, would be a bar
to a claim for specific
performance.
I
am therefore by no means convinced that a court would ever grant the
applicants specific performance, and in my view the applicants
have
not made out a
prima facie
case for this right.
The
aforesaid conclusions make it unnecessary that I consider the other
elements of an interim interdict, namely irreparable harm,
balance
of convenience and the absence of an adequate alternative remedy.
In fairness to the parties I will nevertheless set
out my views on
these aspects briefly. Irreparable harm was not challenged by the
respondents, and was, as I understood it,
accepted by them. There
was a dispute about the balance of convenience, but it clearly in my
view favours the applicants. The
applicants have made it clear that
Workforce would be wound-up if it was not able to conduct further
business. On the other
hand, STA, if it had to maintain the
status
quo
would still be entitled to 51% of the profits made by
Workforce, and would, if it one day succeeded in the appeal, be
entitled
to pick up where it left off. It was said that there was
no tender of damages by the applicants, but counsel for the
applicants
made that tender in reply. Should damages be caused to
STA, Kelly would be liable for such damages and, as a listed
company,
is clearly able to pay same. The same cannot be said for
STA, which has put up no facts which would satisfy me that it would
be able to pay a substantial claim for damages. Accordingly, in my
view the balance of convenience favours the applicants.
Willis
J found, as I have already stated, that the applicants had an
adequate alternative remedy, namely a claim for damages.
He found
that "there is also nothing to suggest that Solly Tshiki is a
"man of straw" and that the pursuit of
damages would prove
to be futile." I regret that I do not agree with that finding.
The
respondent
s put up no facts which
would satisfy me that STA is able to provide the bridging finance
necessary to pay the employees, let
alone to pay damages which were
said in the
affidavit
s to be in the order
of R8.6 million. The statements by STA are too bald to satisfy
me that it could pay a substantial claim
for damages, and the only
document
that was put up (in reply) was a
letter from Standard Bank indicating that STA and Solly Tshiki had
in excess of R2 million
available on borrowings. That is not
in my view sufficient to assist STA. I am therefore of the view
that a claim for damages
is not an adequate alternative remedy.
However,
once I have found that there is no
prima facie
right, the
application
must inevitably fail.
Accordingly,
the
application
is dismissed with costs,
such costs to include the costs of two counsel.
________________________________
ANDR
É
GAUTSCHI
ACTING JUDGE OF THE HIGH COURT
Date of hearing
:
25 February 2010
Date of judgment
:
11 March 2010
For applicants
:
Adv G Farber SC, with him Adv G W Amm
(instructed by
Lowndes
Dlamini
)
For respondents
:
Adv A E Bham, with him Adv W B Pye
(instructed by Knowles Hussain Lindsay
Inc)
c:\arg\judgements\2010\kelly v tshiki.doc
1
MV Snow Delta;
Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746
(SCA) at para [6];
Ismail
v Keshavjee
1957 (1) SA 684
(T) at
688A;
SAB Lines (Pty) Ltd v Cape Tex
Engineering Works (Pty) Ltd
1968 (2)
SA 535
(C) at 537E-G;
Isaacs v Williams
en Andere
1983
(2) SA 723
(NC) at 730D - foot
2
1954 (3) SA 35
(C)
3
At 53H
4
WLD, 10 December 1953
5
At 54G – 55A
6
Vol 11 (Second Edition) para 428
7
1977 (3) SA 534
(A) at 545E-G
8
paragraph 6 of applicants'
heads
of argument
.
9
Herbst en 'n Ander
v Solo Boumateriaal
1993 (1) SA 397
(T) at 399G-400C