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[2010] ZAGPPHC 567
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Amarylis Investments (Pty) Ltd v Gauteng Province Driving School Association and Another (41787/09) [2010] ZAGPPHC 567 (11 May 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT PRETORIA)
DATE: 11 May 2010
CASE NO: 41787/09
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
AMARYLIS INVESTMENTS
(PTY)
LTD
...................................................................................
APPLICANT
AND
GAUTENG PROVINCE
DRIVING
SCHOOL
ASSOCIATION
..............................................................................................
FIRST
RESPONDENT
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
..........................................................................
SECOND
RESPODENT
JUDGMENT
PHATUDI (J)
[1] The Applicants
seek an order to carry into effect the order I granted on the 2
September 2009, as envisaged in terms of Rule
49 (11) of the Uniform
Ruies of this Court pending the judgment and order of the appeal
lodged by the First Respondent.
[2] On the 7 April
2010. the Supreme Court of Appeal granted the Respondents leave to
appeal to the full court of the North Gauteng
High Court, it is trite
that an order granting leave to appeal suspends an order appealed
against pending an order by the appeal
court.
[3] An application
in terms of Rule 49 (11) of the Uniform Rules of the court is aimed
at "bringing into effect” an order
appealed against
pending the appeal court order.
[4]
Rule 49 (11) state that “where an ... application for leave to
appeal against...an order of a court has Peen made, the
operation and
execution of the order in question shall be suspended, pending the
decision of such appeal or application,
unless
the court
which
gave such order, on the application of a party,
otherwise
directs
.”(my
underline)
[5] The Applicant,
in whose favour my judgment dated 2 September 2009 is. seeks relief
that the said order be carried into effect.
On the other hand, the
First Respondent opposes the application on the basis that the
applicant's application is not only ar afterthought,
but frivolous.
vexatious and an abuse of the court process.
[6] Mr Mathabathe,
counsel for the First Respondent, submiis that the Applicant concedes
in their founding affidavit that the First
Respondents prospects of
success are more than sufficient. He submits that despite all
conceded prospects, the applicant frivolously
institutes the
application. He submits that that’ constitutes an abuse of the
court process.
[7] Mr Mathabathe
further submits that this application is not urgent and that there
are no valid grounds for urgency. I immediately
informed him that I
was reauested to furnish the parties with date(s) upon which I am
available to hear the application. I provided
the parties with 2
(two) dates. It is not that the Applicants instituted the application
on an “urgent" basis. I am
informed that the parties
jointly agreed to be heard on this 11 May 2010. He did not pursue
this point from my explanation.
[8]
In evaluating the submission made by both counsellors I am of
the
view that prospects of success mean that the Respondent(s) may, on
the face of it, succeed on appeal. It does not mean that
the
Respondent(s) will succeed. Rule 49 (11) grant, in my view, the Court
with the discretion tc direct that the suspended order
be carried
into effect pending the decision of the appeal court.
[9] The suspension
of my order creates the status quo to prevail. The status quo is the
locking of the gate of an area enclosed
by the Applicant, in the
event the status quo prevails, the dispute between tne parties will
remain and may ieac io unrests. This
is evident from correspondence
exchanged between parties subsequent to the Supreme Court of Appeal’s
order dated 7 April
2010.
[10] I find it in
the best interest of Justice to direct that the “Status"
created by my order to prevail pending the
outcome of the appeal
court.
[11] It is trite
that costs follow the event. Counsel for the First Respondent submits
that tne afierthough: ano contempt of the
Supreme Court of Appeal's
order on the part of the applicant warrants an order of costs against
the Applicants.
[12] There is no
counter application instituted by the First Respondent. There is no
other relief sought by the First Respondent
other than a dismissal of
application with costs.
[13] I, on those
bases, find it appropriate to make an order as to costs to that
effect. I thus make the following order;
[13.11 That it is
directed that paragraph 16.1 and 15.2 of the order made by this Court
on 2 September 2003 in case No 41787/2009
shall not be suspended
pending the decision Full Bench appeal against such order;
[13.2] That the
Sheriff, in whose area of jurisdiction the premises at Erven [...].
[...] and [...] F[...] is situated, is directed
and ordered to take
all necessary steps to give effect to 1:
[13.3]
That the applicant's shall not be reouired to rurnish security as
confernolated in Rule 49 (11):
[1.3.4] That the
applicant is ordered to pay first respondent’s costs of this
application on party and party scale.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on: 11
May
2010
For the Appellant:
Adv Van Rensburq
Instructed
by: Messrs TIM DU TOIT & KIE
For
the Respondent: Adv Mathabathe
Instructed by:
Messrs DOLF MOSOMA ATTORNEYS
Date of judgment: 11
May 2010