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[2011] ZAGPPHC 63
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HMKL 3 Investments (Pty) Ltd v South African National Roads Agency Limited and Others (67270/10) [2011] ZAGPPHC 63 (28 April 2011)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
NORTH GAUTENG HIGH COURT,
PRETORIA
CASE NUMBER 67270/10
DATE:28/04/2011
In
the matter between:
HMKL
3 INVESTMENTS (PTY)
LTD
.............................................................................
Applicant
and
THE
SOUTH AFRICAN NATIONAL ROADS AGENCY LIMITED
.......................
1
st
Respondent
THE MINISTER: DEPARTMENT OF
TRANSPORT
...........................................
2
nd
Respondent
TRENCON
CONSTRUCTION (PTY)
LTD
.........................................................
3
rd
Respondent
JUDGMENT
BAM
AJ
(i)
Application for Leave to Appeal by First Respondent;
(ii) Application by the
Applicant in terms of Rule 49 (11) of the Rules of Court.
1.
The Applicant in this matter applied on an urgent basis for a
temporary interdict restraining the First and Third Respondents
from
proceeding with the erection of a specific toll gantry on the
National Road N1 section S 21 adjacent to Applicant's property,
pending an application for the review of a decision of and procedure
followed by the First Respondent in that regard. The Application
was
granted on 2nd December 2010.
2.
2.1
The First Respondent now applies for leave to appeal against the
whole of the judgment. The Application is opposed by the Applicant.
2.2
Subject to the Court granting the application for leave to appeal the
Applicant conditionally applies, in prayer 4 and 5 of
the
Application, for an order in terms of Rule 49(11) of the Rules of
Court, namely that the order granted on 2 December 2010 "not
be
suspended pending the decision of any appeal against such an order."
This application is opposed by the First Respondent.
If leave to
appeal is refused by this Court, the Application in terms of Rule
49(11) falls away.
2.3
The Second and Third Respondents indicated at the hearing of the main
application that they would abide the Court's decision.
The Second
Respondent, represented by Ms Neukirchner SC, has now again informed
this Court that Second Respondent abides the Court's
decision in the
current applications.
3.
It was agreed by counsel appearing for the Applicant and First
Respondent, respectively
represented by Mr Grobier SC and Mr van
der Merwe for the Applicant and Mr Subel SC and Mr Hofmeyer for the
First Respondent, that
the said two applications should be dealt with
at the same time.( Mr Subel, however, initially submitted that the
application in
terms of Rule 49(11) is premature and should not be
accommodated by the Court.)
APPLICATION
FOR LEAVE TO APPEAL.
The first question which
arose is whether a temporary interdict of this nature is appealable.
Mr Subel SC, contended that although
the order is in form an interim
interdict, it is in fact final and therefore appealable. In
paragraph 32 of the First Respondent's
answering affidavit it is
stated that a "a number of determinations" made by the
Court in the main application are
final in effect. This contention
is opposed by Mr Grobier SC
5.
Section 20(1) of the Supreme Court Act, Act 59 of 1959, reads as
follows;
"An
appeal from a judgement or order of a court of a provincial or local
division in any civil proceedings or against any judgement
or order
of such a court given on appeal shall be heard by the appellate
division or a full court as the case may be."
What
has to be determined is whether the decision to be appealed against
is a judgment or order as envisaged by the section.
6.
In the matter of Zweni v Minister of Law and Order
1993 (1) SA 523
AD, which appears to be the locus classicus with regard to the issue
whether an order of court is appealable in terms of Section
20(1) of
the Supreme Court Act, the following was stated at
page
532 F;
"Section 20 (1) of
the Act no longer draws a distinction between 'judgements or orders'
on the one hand and interlocutory orders
on the other. The
distinction is now between 'judgements or orders' (which are
appealable with leave) and decisions which are not
'judgements or
orders'."
And at 532 J to 533 A:
"A 'judgement or
order' is a decision which, as a general principle, has three
attributes, first, the decision must be final
in effect and not
susceptible of alteration by the Court of the first instance; second,
it must be definitive of the rights of
the parties; and, third, it
must have the effect of disposing of at least a substantial portion
of the relieve claimed in the main
proceedings ..."
7.
Mr Subel SC submitted that the interests of justice is a further
consideration to be taken into account pertaining to the question
of
appealability. In support of this contention I was referred to inter
alia the case of KHUMALO v HOLOMISA and OTHERS 2002(5}
SA 401 CC, S v
WESTERN AREAS LTD and OTHERS 2005(5) SA 214 SCA and PHI LA NI-MA-A
FRIKA V MAILULA 2010(2)SA 573 SCA.
8.
It further appears that the effect of the order to be appealed
against is of material importance. If the order has an immediate
effect which will not be considered in the main application it will
generally be final in effect, and therefore an order which
is
appealable. See METLIKA TRADING LTD and OTHERS v COMMISSIONER, SOUTH
AFRICAN REVENUE SERVICES 2005(3) SA 1 SCA.
9.
it seems to be clear that if the issues for an interim interdict are
the matters on which the final
relief will be sought in the main
application, it will be difficult to find that it would be in
the
interests of justice to grant leave to appeal against the
interim order.
10.
Mr Grobier SC, with reference to CRONSHAW and ANOTHER v FIDELITY
GUARDS HOLDINGS (PTY) LTD
[1996] ZASCA 38
;
1996 (3) SA 686
AD at 689 J to 690 A,
submitted that "An appeal against an interim interdict is
destructive of the main object of an interim
interdict namely to
maintain the status quo pending the final determination of the main
case. It is therefore not in the interests
of justice to allow such
an appeal."
I
agree with this submission.
11.
It was submitted by Mr Subel that the relief sought and obtained in
Part A, by the applicant, is generally "materially
distinct"
from the relief sought in in Part B of the application.
To
my mind this submission cannot be correct. Part A Prayer 2 and the
Order, par 2, are consistent with prayer 6.1 of the main application.
In
this regard I am of the opinion that Mr Grobler is correct in
submitting that the orders obtained by the applicant go no further
than the issues which form the "lis" in the main
application.
12.
It was further specifically contended by Mr Subel that the finding of
legality of the signage on the applicant's property is
an issue which
will not be revisited by the court adjudicating the main application.
Therefore, according to Mr Subel, the decision
of this Court in that
regard is final in effect and thus appealable. Mr Subel further
submitted that this issue is of material
importance to the First
Respondent in that it may affect the situation regarding other
billboards and advertisements on other relevant
properties adjacent
to the N1 National Road in question.
13.
The issue of the legality or not of the signage and advertisements on
the property of the applicant should to my mind not be
considered
separately and in isolation. When the issue of the legality of the
advertising in question is considered in context
I am of the opinion
that the Court adjudicating the main case will surely revisit this
aspect.
14.
At all relevant stages the application for the interim interdict was
considered by the Court as such, keeping in mind that the
relief the
applicant sought was of a temporary nature pending the finalization
of the main application. The requirements of an
interim interdict
were proved by the applicant hence the order made by this Court.
15.
The relief granted by this Court on 2
nd
December 2010 was
nothing else but an interim interdict. I have specifically considered
whether the granting of the application
for leave to appeal will be
in the interests of justice or not. In view of the fact that the
order made by this Court is clearly
not final and granted pending the
review proceedings, I am of the opinion that the interests of justice
could not dictate that
leave to appeal should be granted.
Order:
1. The First
Respondent's application for leave to appeal is dismissed with costs.
AJ
BAM
ACTING
JUDGE OF THE HIGH COURT
28
APRIL 2011