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[2022] ZAGPJHC 954
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Emfuleni Local Municipality and Others v Sams Tissue Products (PTY) Ltd (18024/2022) [2022] ZAGPJHC 954 (1 December 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 18024/2022
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED
1/12/2022
In the matter between:
EMFULENI LOCAL
MUNICIPALITY
1
ST
APPLICANT
EXECUTIVE MAYOR,
EMFULENI
2
ND
APPLICANT
MUNICIPALITY: SIPHO RADEBE N.O.
MUNICIPAL MANAGER, EMFULENI
MUNICIPAL: LUCKY LESEANE
N.O.
3
RD
APPLICANT
And
SAMS TISSUE PRODUCTS (PTY)
LTD
RESPONDENT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MAKUME
J
:
[1]
The Applicants who were the Respondents in this application seek
leave to appeal against
prayer four of the order I handed down on the
6
th
July 2022.
[2]
That prayer 4 reads as follows:
“
This order does not prevent the
Respondents from exercising their legal rights in terms of the
revenue and debt collection by laws
in respect of any actual
indebtedness owed by the Applicants to the Respondent arising after
29
th
June 2022.”
[3]
The Applicants argue that this order means that the Municipality is
prevented from
exercising its legal right in terms of its revenue and
debt collection by laws, including instituting any legal proceedings
in
respect of Sam Tissue Products indebtedness prior to 29 June 2022.
[4]
It is that interpretation that the Applicant says should go on appeal
to the full
bench of this Court alternatively the Supreme Court of
Appeal.
[5]
The Applicants interpretation of the order in paragraph 4 is clearly
wrong. There
is nowhere in the judgment nor in the order in which
this Court barred Emfuleni from instituting action against the
Respondent
for recovery of debts due to it. All that the order says
is that if there is actual debt not estimated debt they can proceed
to
institute action.
[6]
It must be recalled that the interdict came about because Emfuleni
threatened to cut
off electricity supplies on a disputed claim based
on estimates. It is that matter for which Emfuleni is now been sued
as directed
in paragraphs 2 and 3 of the order.
[7]
The order in paragraph 4 is directed at preventing threats to cut off
based on estimates
which may result in further interdicts.
[8]
The Applicants unfounded fear that it will be faced with a plea of
prescription or
some form of special plea has been put to bed by
Counsel for the Respondent who indicated before this Court that Sams
Tissue has
no intention of relying on such pleas and actually invited
the Applicants to file their counterclaim.
[9]
The test to be applied in deciding whether or not leave should be
granted is governed
by the provisions of Section 17(1) of Act 10 of
2013 which provides as follows:
“
Leave to appeal may only be
given where the judge or judges concerned are of the opinion that:
a)
(i) the appeal would have
a reasonable prospect of success or
(ii) there is some other compelling
reason why the appeal should be heard including conflicting
judgments.”
[10] I
am not persuaded that the appeal would have a reasonable prospects of
success.
ORDER:
1.
The application for leave
to appeal is dismissed.
2.
The Applicants are ordered
to pay costs of this application.
DATED
at JOHANNESBURG this the 01
st
day of DECEMBER 2022.
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
DATE
OF HEARING
: 01
DECEMBER 2022
DATE
OF JUDGMENT
: 01 DECEMBER 2022
FOR
APPLICANTS
: ADV MATHOPO
INSTRUCTED
BY
: MAJAVU INCORPORATED
FOR
RESPONDENT
: ADV
KHAN
INSTRUCTED
BY
: SHAHEED DOLLIE ATTORNEYS