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[2019] ZAECPEHC 79
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YSA Manufacturing and Industry (Pty) Limited v Mawethu Plant Limited (2189/2019) [2019] ZAECPEHC 79 (12 November 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO: 2189/2019
Date Heard: 22
August 2019
Date
Delivered: 12 November 2019
In
the matter between:
YSA MANUFACTURING AND
INDUSTRY
(PTY) LIMITED
REGISTRATION NO
2018/528767/07
APPLICANT
and
MAWETHU PLANT LIMITED
REGISTRATION
NO 2004/003601/07
RESPONDENT
JUDGMENT
JAJI
J:
[1]
This is an opposed application for an
interlocutory interdict, interdicting the respondent from
transferring, selling, purporting
to sell, encumbering or alienating
Erf 791 Swartkops in the Nelson Mandela Bay Municipality, Division of
Port Elizabeth, Province
of the Eastern Cape, in extent 2216 square
metres held by deed of transfer number T700[…] (the property)
pending the outcome
of the main application.
[2]
The applicant contended that should the transfer
into the name of the new buyer be effected, then the applicant’s
relief sought
in the main application and in the interdict as it
currently reads would become moot and the applicant would suffer
serious prejudice
and irreparable harm.
[3]
The respondent opposed the application for
interdict on the same basis as the main application for
rectification. The respondent
submitted that to do otherwise would
eventuate in the application being argued and adjudicated twice on
the same papers involving
the same issues.
[4]
The applicant filed a replying affidavit only on
one aspect being the interdict which was ready for hearing on an
urgent basis.
In its heads of argument, applicant averred that the
balance of convenience favours the status
a
quo
to be maintained pending the finalisation
of the main application. It submitted that there was no other
satisfactory remedy available
to the applicant, pending finalisation
of the main application. The applicant argued that it has made out a
case for the relief
sought.
[5]
As stated above, the respondent concentrated
mainly in its argument on the main application. It made submissions
on issues to be
dealt with at the main application. For instance,
issues like whether applicant was entitled to rectification as a
remedy, waiver,
common mistake by the parties, non-compliance with
alienation of Land Act.
[6]
It is common cause that:
(i)
The respondent was in a process of selling and
transferring the property in dispute;
(ii)
The present application is for an interim
interdict restraining the respondent from transferring or otherwise
encumbering, alienating
or disposing the abovementioned property,
pending the outcome of the main application;
(iii)
It is common cause that the main application for
rectification has been case managed already and parties were directed
to:
-
Applicant is to file replying affidavit, if any,
no later than 08 November 2019;
-
Parties to file their supplementary heads of
argument, if any, by not late than Thursday, 14 November 2019;
-
Applicant must comply with practice note 15A by
not later than 14 November 2019. (See DJP’s directive)
(iv)
In the certificate of urgency, the applicant had
suggested that the Duty Judge make a further directive that no
transfer may take
place prior to finalisation of the urgent
application. Indeed, the Duty Judge Rugunanan AJ, recorded as
stipulated in para 5 of
the order dated 13 August 2019, that “the
respondent’s undertaking not to transfer the said property
prior to an order
being made in the urgent application is noted.”
I am informed by the case management Judge that the respondent has
agreed
to extend its undertaking to the hearing of the main
application.
(v)
In argument the respondent dealt with the urgent
application, but mainly the submissions were concentrated to the main
application.
The respondent in its heads of argument contended that
it had responded to both the main application and the application for
interim
relief, and as such the application should proceed on the
basis of the final relief. It submitted that to do otherwise would
eventuate
in the application being argued and adjudicated twice in
the same papers involving the same issues.
(vi)
The applicant only filed a replying affidavit on
one aspect, being the urgent application and not in respect of the
main application.
The Duty Judge sanctioned only the hearing of the
urgent application.
[7]
Having regard to the common cause factors,
clearly the court could not proceed and determine both applications
because the matter
that was placed for adjudication before this court
was the application for interim relief only. The respondent’s
argument
referred to above loses sight of the fact that what was
placed before this court was the application for interlocutory
relief,
where the question is whether the applicant has established a
prima facie
right to
the relief claimed as opposed to a clear right. The parties have
received,
albeit
after
the fact directives as to how to proceed forward in the main
application. In the premises, the applicant was correct to only
reply
to issues relevant to the urgent application.
[8]
The
question is then whether this court should, in the exercise of its
discretion, grant the interim relief claimed (
Camps
Bay Residents Ratepayers Association and Others v Augoustides and
Others
2009
(
6
)
SA
190
(WCC)
at 196A-B)
.
The following factors are considered in this regard:
(i)
Having regard to the undertaking given, the
proximity of the hearing of the main application (November 2019), the
case management
directive issued in respect thereof, the grant or
refusal of the interdict would clearly not affect the outcome of the
main application.
(ii)
Main application is ripe and ready for hearing;
(iii)
The date for hearing is November and it has
already been case managed and directives issued;
(iv)
The directive by Rugunana AJ informed the office
of the Deeds Office, the prospective buyer and the respondents of the
present application;
should the respondent alienate the property
during litigation whilst the main application has not been heard, the
applicant would
not be without remedy, in any event, all interested
parties are aware of the litigation and would proceed with the sale
at their
own peril;
(v)
The applicant does not stand to suffer any
prejudice if the interim relief is not granted.
[9]
I, therefore hold a view that it would not be
necessary and proper to grant an interlocutory interdict herein in
light of the abovementioned
circumstances.
[10]
Accordingly, I make no order with the costs of
the hearing being costs in the main application.
___________________________
N
P JAJI
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicant
:
Adv
Crouse SC
Instructed
by
:
Strombeck
Pieterse Attorneys
174 B Cape Road
Mill Park
PORT ELIZABETH
Ref: S Omar/sj/MAT14739
Counsel
for the respondent
:
Adv De
la Harpe SC
Instructed
by
: Padgens
Attorneys
18 Castle Hill
Central
PORT ELIZABETH
Ref: R.
Parker/cb/FLO15/0001