About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2023
>>
[2023] ZAKZPHC 66
|
|
South African National Roads Agency SOC Limited v Archiways Skye (Pty) Ltd and Another (5302/2021P) [2023] ZAKZPHC 66 (15 June 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULUU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO:
5302/2021P
In the matter between:
THE SOUTH AFRICAN
NATIONAL ROADS AGENCY
SOC
LIMITED
APPLICANT
And
ARCHIWAYS SKYE (PTY)
LTD
RESPONDENT
CAMRY TRADING
ENTERPRISES (PTY) LTD
THIRD PARTY
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
On 15 September 2022 an order was granted evicting Respondent from
Applicant’s
property erf 3[...] Pietermaritzburg and costs.
The order granted was in terms of paragraphs 1, 2 and 3 of the notice
of
application and the third party application brought by Respondent
was dismissed with costs. An application for leave to appeal
was brought by Respondent against the whole judgment which was
refused with costs including the costs of senior counsel where
applicable on 26 January 2023. On or about 27 January 2023
Respondent brought a petition in the Supreme Court of Appeal for
leave to appeal.
[2]
On 11 May 2023 I received a copy of a letter addressed to the
Registrar from Applicant’s
attorney and all other parties that
Respondent’s application for leave to appeal to the Supreme
Court of Appeal was dismissed
on 28 April 2023 and Respondent
indicated it had instructions to apply for leave to appeal to the
Constitutional Court. To
date there has been no indication that
such an application has been brought but it may well have been
brought without notice thereof
being given to me or the Registrar of
this Division. Applicant indicated it persists with its
application in terms of section
18 of the
Superior Courts Act 10 of
2013
. This application was heard on 9 May 2023 prior to the
order of the Supreme Court of Appeal coming to the courts attention,
although it had been made on 28 April 2023 and stamped by the
Registrar of the Supreme Court of Appeal on 5 May 2023.
[3]
During October 2021 an order was granted by Seegobin J that the
monthly rental payable
by certain of the occupants of the said
property be paid to Applicant attorneys trust account and not
Respondent. This was
due to the fact that Respondent did not
pay the rental in terms of the contract nor any rental received to
Applicant. The
relief which is now being sought is that pending
finalisation of the appeal process the order granted on 15 September
2023 be put
into operation. The application is opposed by
Respondent.
[4]
The third party is not opposing the relief sought and submitted that
it was only protecting
its own interests.
[5]
Section 18
of the
Superior Courts Act 10 of 2013
reads as follows:
“
(1)
Subject to subsections 2 and 3, and unless a 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)
Subject to subsection (3), unless a court under exceptional
circumstances orders otherwise,
the operation and execution of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the
subject of an application for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
The court may only order otherwise as contemplated in subsection 1 or
2, if a party who
applied to a court to order otherwise, in addition
proves on a balance of probabilities that he or she will suffer
irreparable
harm if a 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 subjection (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 would be automatically suspended pending the outcome of
such appeal.
(5)
For the purposes of subsection (1) and (2), a decision becomes the
subject of an application
for leave to appeal or of an appeal, as
soon as an application for leave to appeal or notice of appeal is
lodged with the Registrar
in terms of the Rules.”
[6]
It was submitted on behalf of Applicant that Respondent is in
occupation of the premises
since July 2020 after its tender was
successful. The premises comprises of an Engine Service Station
and various other businesses
as well as a KWIKSPAR (operated by the
third party). Respondent concluded a sublease with the third
party and collected rental
from them on a monthly basis.
However Respondent had not made any payments for the premises to
Applicant as a result of which
the contract was cancelled. The
primary defence of Respondent is that it does not have full use and
benefit of the premises
and therefore is not obliged to pay rental.
Respondent operates the Engen Garage. That was an issue which
was dealt
with in the application. In the application for leave
to appeal a new ground was raised by Respondent that the judgment was
based on the incorrect agreement. It should have accepted the
tender document rather than the signed agreement.
[7]
It was submitted that the test in terms of
section 18
to determine
exceptional circumstances is fact specific. Until an order was
granted by Seegogin J. in 2021 Respondent collected
rental but did
not pay any rental over to Applicant. The monthly rental at
present is the sum of R780 238-08 and none of
this is being paid
over. The arear rental and holding over damages owing to
Applicant amounts to over R 20 million.
There is no security
held by Applicant and it was submitted that Respondent continues with
its unlawful occupation. Respondent
is a close corporation only
registered in 2018 and there is no indication that is has any
assets. If any claim has to be
instituted against it there is
no indication that it would be able to pay a successful claim.
It is submitted that the conduct
of Respondent and the harm caused to
Applicant makes the case exceptional. Respondent continues to
trade and enjoy the benefit
of a lucrative Engine Service Station
while not paying any rental for its usage. Further the premises
is in a state of disrepair.
It is submitted that if the
eviction is not allowed Respondent will not be prejudiced as any
damages sustained would be recoverable
as Applicant is in a strong
financial position. There will accordingly be no irreparable
harm that effects the consequences
or are irreversible. It is
further submitted that the prospects of success is a factor and that
two judges of this division
found Respondent’s defences
meritless. Since then such defences have also had no success in
the Supreme Court of Appeal.
[8]
It was submitted by Mr. Harpur SC that they were waiting for the
decision of the Supreme
Court of Appeal which as set out above has
now been decided. It was submitted that it was only monetary
prejudice and that
there were no exceptional circumstances. He
referred to the decision in Knoop NO v Gupta
2021 (3) SA 135
(SCA)
that there were no exceptional circumstances. It was submitted
that Applicant allowed occupation before the signature
of the
agreement and that this cannot now be taken into account. The
KWIK SPAR is in unlawful occupation. It was further
submitted
that the cases dealing with irreparable harm such as that of
Multishare referred to by Applicant was distinguishable.
The
parties would have to go into the tender process again. Further
the right of access to court can also not be interfered
with and that
the Plascon Evans Rule applies.
[9]
Engen was not sited but has an interest and therefore there was non
joinder.
It will be irreparable harm for Respondent and the
damages cannot be recovered. It was submitted that it was held
in Knoop
NO v Gupta at paragraph 22 that each and every one of the
three requirements must be established by Applicant. It is not
a balancing act between the requirements. It was further
submitted that allowing a litigant to execute on a judgment while
an
appeal is pending can prematurely deprive the unsuccessful litigant
of the opportunity to have a judgment reviewed and overturned
on
appeal. The monetary consequences are being dealt with in a
separate action that has been instituted by Applicant.
There is
nothing exceptional about the eviction and Applicant should have
launched the application for leave to execute to be heard
simultaneously with Respondent’s application for leave to
appeal. It was submitted that there was no urgency and that
period of approximately 4 months had passed. It is submitted
that if the order is granted Applicant would have to follow
a tender
process to find a new tenant. It would therefore nonetheless
suffer financial loss. There is no irreparable
harm to SANRAL
which justifies immediate execution. Further that SANRAL has
failed to provide full occupation of the leased
premises to
Respondent and that there is irreparable harm to Respondent.
[10]
The period of four months was however due to the request that the
original counsel appear in
the application and thus the delay.
[11]
It was submitted on behalf of the third party that Respondent was
given full occupation of the
premises and that the third party was
granted a lease by Respondent and Respondent accepted the rental in
respect of occupation
of the premises. In the premises
Applicant was incapable of evicting the third party. Respondent
could have attempted
to evict the third party but would have been met
with the fact that rental had been paid and accepted. It was
submitted that
the prospects of success is a factor which had to be
taken into account.
[12]
In University of Free State v Afriforum and Another
2018 (3) SA 42
8
(SCA) it was held that what was required was proof on a balance of
probabilities that the applicant will suffer irreparable harm
if the
order is not granted and conversely that the respondent will not if
the order is granted. Further that exceptionality
must be fact
specific. The circumstances which are or may be exceptional
must be derived from the actual predicaments in
which the given
litigants find themselves.
[13]
It was held in paragraph 15 that the prospect of success on appeal
are relevant in deciding whether
or not to grant the exceptional
relief.
[14]
In Multisure Corporation (Pty) Ltd v KGA Life Limited and Another
2780/2021 (2022) ZAECQBHC and
dated 30 August 2022 it was held in
paragraph 30:
“
The
requirement for Multiserve to demonstrate that it will suffer
irreparable harm if the relief it seeks is not granted is, in
this
instance, closely linked to the duration of exceptional
circumstances. In Premier for the Province of Gauteng and
Others
v the DA and Others the Supreme Court of Appeal confirmed that
there is no prohibition on the same set of facts giving rise to
irreparable harm and exceptional circumstances. The ordinary
meaning of harm is injury, damage or ill effect. For harm
to be
irreparable the effects or consequences must be irreversible or
permanent. The financial harm occasioned to Multisure
is
continuous and serious as described. The business is losing
money with each passing month. Multisure has downsized
and
being forced to rely on its savings and the sale of shares. The
onus placed on immovable property on the market in order
to raise
further capital. It has established on a balance of
probabilities that it will suffer irreparable harm if relief
sought
is not granted.”
[15]
In Toma and Another v Ranoshai and Others (2021) ZAGPJHC 171 (14 May
2021) it was held in paragraph
18:
“
It
is now settled that the respondent’s prospects of success in
the pending appeal is a relevant factor in considering whether
the
present application should be granted as stated by Justice Binsward
on behalf of a Full Court in Minister of Social Development
Western
Cape v Justice Alliance quoted with approval in University of the
Free State v Agriforum and Another. It follows
that the less
sanguine a court seized with an application in terms of
section 18(3)
is about the prospects of the judgment at first instance being upheld
on appeal, the less inclined it will be to grant the exceptional
remedy of execution of that judgment pending the appeal. The
same quite obviously applies in respect of a court dealing with
an
appeal against an order granted in terms of
section 18(3).
The
position is very much akin to that which pertains when interim
interdictory relief pending judicial review is being considered.”
[16]
In Incubeta Holdings v Ellis
2014 (3) SA 189
(GJ) it was held in
paragraph 22:
“
Necessarily
in my view exceptionality must be fact specific. The
circumstances which are or may be exceptional must be derived
from
the actual predicaments in which the given litigants find
themselves.”
It held further that it
was a deviation from the norm and that two distinct findings of fact
must be made. In paragraph 27
it continued:
“
The
forfeiture of substantive relief because of procedural delays, even
if not protracted in bad faith by a litigant, ought to be
sufficient
to cross the threshold of exceptional circumstances.”
[17]
In Knoop NO and Another v Gupta (execution 2021(3) SA 135 (SCA) it
was held in paragraph 48 that
it was not a balancing exercise between
the two as set out in the judgment of University of the Free State v
Agriforum but must
both be established on a balance of
probabilities. If the applicant cannot show that the respondent
will not suffer irreparable
harm by the grant of the execution order
that is fatal.
[18]
In the case Knoop it was held that the Full Court suspension order
was invalid as no such order
was asked for in the application for
leave to execute and none of the parties were called to address the
court on the specific
issue. It was therefore granted without
granting the appellants a hearing on that issue.
Section 18(4)
specifically states that the operation of an execution order was
suspended pending the urgent appeal under
section 18(4).
[19]
In Ntlemeza v Helen Suzman Foundation
2017 (5) SA 402
(SCA) it was
held at paragraph 43:
“
It
concluded that the findings by Matojane J which reflected negatively
on General Ntlemeza were a major obstacle for him to overcome
and
held that his prospects of success were severely limited.”
It held at 418F:
“
I
may add that General Ntlemeza sought to appeal against the judgment
of Matojane J but his petition to this Court failed.
In the
result the findings by Matojane J are no longer susceptible to
reconsideration.”
[20]
It must be considered if there are exceptional circumstances and
whether on a balance of probabilities
there will be irreparable harm
to Applicant and none to Respondent. To do so the facts of this
case must be considered.
[21]
To decide the issue of exceptional circumstances the facts of the
case must be considered.
The tender was awarded to Respondent
who took occupation of the premises during July 2020. All the
other tenants were already
in occupation of the other premises except
the filling station which Respondent started trading from and is
still so doing.
Respondent received rental from all the other
tenants but did not pay any rental due to Applicant and is still not
paying any rental.
Due to Respondent not paying any rental to
Applicant an order was obtained on 27 October 2021 that all the other
tenants pay their
rental to Applicant’s attorneys trust
account. Although Respondent knew the other tenants occupied
premises it took
occupation of the filling station and collected rent
from KWIK Spar. The monthly rental payable at present in terms
of Respondent’s
tender is the sum of R708 238-08 and the
outstanding rental amounts to R20 202 319-92. Respondent now
tenders to pay rental
of R142 635-00 per month to Applicant pending
finalisation of the matter. Respondent does not set out or even
make an allegation
that it has assets or the funds to pay any
successful claim that may be instituted against it. Applicant
has no relationship
or agreement with Engen and it was therefore not
necessary to site them.
[22]
As set out in Premier for the Province of Gauteng and Others v DA and
Others the Supreme court
of Appeal held as referred to in Multisure
Corporation (Pty) Ltd above that there is no prohibition on the same
set of facts giving
rise to irreparable harm and exceptional
circumstances.
[23]
These factors and as mentioned
inter alia
in Ntlemza v Helen
Suzman Foundation above in my view amounts to exceptional
circumstances.
[24]
Applicant is an institution with considerable assets and means and
will be in a position to pay
any claim which can be proved against
it. It is suffering severe financial prejudice as set out above
which was also found
to be a factor in the Multisure Corporation
(Pty) Ltd Case. Respondent will not suffer any prejudice as it
has operated the
filling station since 2020 without paying any rent
to Applicant. It further has not shown or even alleged what
assets it
has and was only incorporated in 2018. It has in my
view therefore been proved on a balance of probabilities that
Applicant
will suffer irreparable harm but Respondent not.
Further Respondent’s prospects of success on further appeal are
not
good as leave to appeal has already been refused by the Supreme
Court of Appeal.
The following order is
therefore made:
1.
The order made in this matter on 15
September 2022 is operative with immediate effect.
2.
Respondent is to pay Applicant’s
costs.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
9
MAY 2023
JUDGMENT
HANDED DOWN:
15
JUNE 2023
COUNSEL
FOR APPLICANT:
K
GOUNDEN
Instructed
by:
Venns
Attorneys
Pietermaritzburg
Tel:
033 355 3131
Ref:
M H Motala/TH/13238392
COUNSEL
FOR RESPONDENT:
HARPUR
SC
Instructed
by:
De
Villiers, Evans & Petit Attorneys
Ref:
Mr C Petit/oj/01R029015
c/o:
Stowell & Co.
Tel:
031 207 1515
Pietermaritzburg
Ref:
P Firmin/Zelda
THIRD
PARTY COUNSEL:
DICKSON
SC
Instructed
by:
Mason
Incorporated
Pietermaritzburg
Tel:
033 3454230
Ref:
P Coetzee/Nisha