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2024
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[2024] ZAGPJHC 177
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Sasol Oil (Pty) Limited v Bitline SA 951 CC t/a Sasol Roodepoort West and Others (2023-052191) [2024] ZAGPJHC 177 (29 February 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
1.
NOT
REPORTABLE
2.
NOT
OF INTEREST TO OTHER JUDGES
DATE
:
29
th
February 2024
(1)
CASE NO
:
2023-052191
In the matter between:
SASOL
OIL
(PTY)
LIMITED
Applicant
And
BITLINE
SA 951 CC t/a SASOL ROODEPOORT WEST
First
Respondent
JASSAT
,
BASHIR
Second Respondent
AMRICH
58 PROPERTIES (PTY) LIMITED
Third
Respondent
(2)
CASE NO
:
2023-052612
In the matter between:
SASOL
OIL
(PTY)
LIMITED
First Applicant
AMRICH
58 PROPERTIES (PTY) LIMITED
Second Applicant
And
BITLINE
SA 951 CC t/a SASOL ROODEPOORT WEST
Respondent
Neutral Citation
:
Sasol Oil v Bitline SA 951 and Other (2023-052191); Sasol Oil and
Another v Bitline SA 951 (2023-052612)
[2024] ZAGPJHC ----
(29
February 2024)
Coram:
Adams J
Heard
:
23 February 2024
Delivered:
29 February 2024 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to
CaseLines
and by release to
SAFLII. The date and time for hand-down is deemed to be 10:00 on 29
February 2024.
Summary:
Application – for
the implementation of an
order pending an appeal – the requirements for the granting of
an order in terms of
s 18
of the
Superior Courts Act 10 of 2013
considered – applicant bears the onus to prove the existence of
‘exceptional circumstances’ and should discharge
the onus
imposed by
s 18(3)
to show irreparable harm
–
application granted.
ORDER
(1)
In the matter under case number:
2023-052191
,
the following order is granted: -
(a)
In terms of
section 18(1)
, read with
section 18(3)
, of the
Superior Courts Act, Act
10 of 2013, it is
ordered that the operation and execution of the Judgment and the
Order of this Court under case number 2023-052191,
dated 11 December
2023, shall not be suspended pending the decision of the first and
the second respondents’ appeal and the
outcome of such appeal.
(b)
The first and the second respondents,
jointly and severally, the one paying the other to be absolved, shall
pay the applicant’s
costs of this application.
(2)
In the matter under case number:
2023-052612
,
the following order is granted: -
(a)
In terms of
section 18(1)
, read with
section 18(3)
, of the
Superior Courts Act, Act
10 of 2013, it is
ordered that the operation and execution of the Judgment and the
Order of this Court under case number 2023-052612,
dated 11 December
2023, shall not be suspended pending the decision of the respondent’s
appeal and the outcome of such appeal.
(b)
The respondent shall pay the applicants’
costs of this application, including the costs consequent upon the
employment of
two Counsel, one being a Senior Counsel, where so
employed.
JUDGMENT
[APPLICATION ITO
SECTION 18
(1) AND (3) OF THE SCA]
Adams
J:
[1].
I shall refer
to the parties as referred to in the original two opposed
applications under the above two separate case numbers,
in respect of
which I had, on 11 December 2023, handed down one judgment.
[2].
In ‘the
first matter’ under case number 2023-052191, I had granted
interdictory relief against the respondents in favour
of the
applicant (Sasol Oil) in relation to a franchise agreement which was
entered into between Sasol Oil and the first respondent
(Bitline SA)
and which agreement had been cancelled by Sasol Oil. The respondents
were
inter
alia
interdicted from carrying on the business of a Sasol service and a
filling station as contemplated in terms of the franchise agreement.
Sasol Oil was also granted leave to gain access to the business
premises and the site in order to affect an onsite disablement
of the
Sasol’s systems.
[3].
In ‘the
second matter’ under case number 2023-052612, I had granted an
eviction order against Bitline SA in favour of
Sasol Oil and the
second applicant (Amrich 58), which is the owner of the immovable
property on which the Sasol business premises
are located.
[4].
In these
applications, the applicants apply for orders directing that the
operation and execution of the judgment and orders of
11 December
2023 shall not be suspended pending appeals by the respondents of the
said judgment. As was the case in the main applications,
I am of the
view that it is convenient to deal with both of the applications for
leave to appeal in one judgment.
[5].
The applications are premised on
the facts mentioned in the judgment, notably that the applicants
urgently need to take back the
business premises and the business, as
Bitline SA is presently occupying the premises and running the
business when it has no lawful
right to do so. Additionally, so the
case on behalf of the applicants goes, the respondents are not paying
rental or royalties
and has not done so since November 2022.
[6].
The applicants allege that the
orders sought in these applications ought to be granted, because, if
not, they would suffer irreparable
harm in addition to the harm they
have suffered to date as a result of the unlawful occupation of the
premises by Bitline SA since
2022. Conversely, so the applicants
contend, there is no irreparable harm to be suffered by the first and
the second respondents,
who are occupying the property rent-free.
[7].
The first and the second
respondents oppose the application and contend that, in the event of
the court order being implemented,
they and their business would
suffer irreparable harm in that the business would in all likelihood
fold. On the other hand, there
are no harm to be suffered by the
applicants if the orders are not immediately implemented.
[8].
Section 18
of the
Superior Courts
Act provides
as follows: -
‘
(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)
… … …
(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.’
[9].
Whether or not exceptional
circumstances exist is not a decision which depends upon the exercise
of a judicial discretion: their
existence or otherwise is a matter of
fact which the Court must decide accordingly.
[10].
I have found
in the main Judgment that the applicants are entitled to take back
the business premises and the business. This then
means that the
first respondent’s occupation of the property is unlawful.
That, in my view, cannot be countenanced. What
is more is that that
position has endured for a period in excess on one year.
[11].
The
aforegoing, in my view, constitute exceptional circumstances. The
point is that, if the order is not put into operation, then
the
applicants will suffer irreparable harm as they are deprived of the
property to which they are fully entitled. The applicants
also submit
that when considering the question of exceptional circumstances,
regard should be had to the fact that the first respondent
has no
right to be in occupation of the property. It is therefore an
unlawful occupant.
[12].
I find myself
in agreement with these submissions. Exceptional circumstances exist
which entitle the applicants to an order that
the operation of the
previous court order shall not be suspended.
[13].
Moreover, if the respondents are
permitted to continue occupying the premises, the applicants will
suffer damages in that they are
deprived of the benefits of the
ownership of such property, which damages they are unlikely to ever
recover. Conversely, if the
order is granted, and whilst it is so
that it is self-evident that the first respondent would suffer harm,
such harm cannot be
said to be irreparable. The first respondent
always has open to it a damages claim against the applicants.
[14].
I am therefore
satisfied that on a balance of probabilities the applicants would
suffer irreparable harm if the relief sought in
this application is
not granted. On the other hand, and if regard is had to the fact that
the first respondent is in unlawful occupation
of the premises in
question, it is unlikely that it will not be able to recover damages
from the applicants in the event of this
finding being wrong. It is
therefore unlikely that the respondents will suffer irreparable harm.
[15].
Having regard to the facts in this
matter, I am satisfied that the applicants have demonstrated
exceptional circumstances entitling
them to an order implementing the
previous order pending the appeal. In addition, the applicants have,
in my judgment, shown, on
a balance of probabilities, that the
respondents will not suffer irreparable harm.
[16].
The applications must therefore
succeed.
Order
[17].
In the circumstances, the
following orders are made in respect of the two applications in terms
of
s 18
of the Superior Courts Act: -
(1)
In the matter under case number:
2023-052191
,
the following order is granted: -
(a)
In terms of
section 18(1)
, read with
section 18(3)
, of the
Superior Courts Act, Act
10 of 2013, it is
ordered that the operation and execution of the Judgment and the
Order of this Court under case number 2023-052191,
dated 11 December
2023, shall not be suspended pending the decision of the first and
the second respondents’ appeal and the
outcome of such appeal.
(b)
The first and the second respondents,
jointly and severally, the one paying the other to be absolved, shall
pay the applicant’s
costs of this application.
(2)
In the matter under case number:
2023-052612
,
the following order is granted: -
(a)
In terms of
section 18(1)
, read with
section 18(3)
, of the
Superior Courts Act, Act
10 of 2013, it is
ordered that the operation and execution of the Judgment and the
Order of this Court under case number 2023-052612,
dated 11 December
2023, shall not be suspended pending the decision of the respondent’s
appeal and the outcome of such appeal.
(b)
The respondent shall pay the applicants’
costs of this application, including the costs consequent upon the
employment of
two Counsel, one being a Senior Counsel, where so
employed.
L R ADAMS
Judge of the High Court of South
Africa
Gauteng Division, Johannesburg
HEARD ON:
23
rd
February 2024
JUDGMENT DATE: 29
th
February 2024 – judgment handed down electronically.
FOR SASOL OIL (APPLICANT
IN THE FIRST
MATTER):
Advocate
Schalk Aucamp
INSTRUCTED
BY:
DM5
Incorporated, Illovo, Johannesburg
FOR THE AMRICH 58
PROPERTIES (SECOND
APPLICANT IN SECOND
MATTER):
Adv
J J Brett SC, together with Adv J L Kaplan
I
NSTRUCTED
BY:
Hirschowitz
Flionis Attorneys,
Rosebank, Johannesburg
FOR THE BITLINE SA 951
(FIRST RESPONDENT IN THE
FIRST MATTER) AND THE
SECOND
RESPONDENT:
Advocate
J A Venter
INSTRUCTED
BY:
Des
Naidoo & Associates, Parkmore, Sandton