Brief Summary

Interdict — Urgent application for interdict — Applicants seeking to interdict respondents from interfering with construction activities — Applicants alleging threats and violence from respondents disrupting operations — Court determining urgency based on potential for substantial redress — Applicants demonstrating that ongoing threats and violence necessitate urgent relief — Court granting interim interdict to prevent further interference pending final determination of the dispute.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent application in the Gauteng Local Division, Johannesburg, in which the applicants sought interdictory relief restraining the respondents from allegedly disrupting and threatening the applicants’ property development activities. Although framed as relief pending the final determination of a broader dispute under Part B, the applicants ultimately pressed for a final interdict, with an interim interdict sought only in the alternative.

The applicants were Blue Print Housing (Pty) Ltd and Dino Properties (Pty) Ltd, described as property development companies engaged in a large-scale mixed-use development. The respondents comprised eleven identified individuals (the first to eleventh respondents) and additional respondents described in functional terms as persons attempting to interfere with the applicants’ business and development activities. A further respondent, the Station Commander of the Roodepoort Police Station (the twelfth respondent), was cited, though the judgment treated “the respondents” as referring to the first to eleventh respondents, dealing with the Station Commander separately where necessary.

Procedurally, the application was launched on 17 November 2022 and was initially set down for 29 November 2022. The matter did not proceed then because answering papers had not been filed; the answering affidavit was only filed on 1 December 2022 (the morning of the hearing), and the matter was stood down and heard later that day. Judgment was delivered on 5 December 2022.

The general subject matter concerned alleged interference, intimidation, and violence at the applicants’ development site and threats directed at the applicants’ employees and business operations, including at the applicants’ head office. The respondents’ answering version located the conflict in an alleged payment dispute involving a subcontractor (Tri-Star), which the judgment noted formed part of Part B and was not directly before the court in this urgent Part A application.

2. Material Facts

The applicants were engaged in a property development on land described as The Remaining Extent of Portions 1 and 5 and Portion 404 of the Farm Roodepoort 237, Registration Division I.Q, Gauteng. The applicants stated that phase 1 had been completed and that they were due to complete phase 2, which they alleged ought to be concluded by 15 December 2022. The applicants contended that they were unable to proceed with phase 2 because the respondents repeatedly caused construction to stop through violence, force, and intimidation directed at the applicants’ employees and persons working on site.

On the applicants’ version, the immediate events grounding urgency occurred during 7 to 10 November 2022. On 7 November 2022, a group allegedly led by the first and fourth respondents arrived at the site and threatened to close it the next day. On 8 November 2022, a group of approximately 200 people, allegedly led by the first to sixth and ninth respondents, arrived and threatened persons working on site, resulting in the site being closed for that day. The applicants stated that they reported these events to the South African Police Service (SAPS), received an undertaking of assistance, but no police members arrived. A similar large group allegedly arrived again on 9 November 2022, and work was again halted for safety reasons.

A significant fact treated as essentially undisputed in the judgment was that physical violence occurred on 10 November 2022 at the construction site. While the respondents broadly denied various allegations, the deponent to the answering affidavit, Sisanda Thompson, admitted that engagements with the subcontractor Tri-Star sometimes did not end well due to a dispute about money the respondents believed Tri-Star owed them. The judgment also recorded that the respondents did not deny that violence occurred, and that some denials were either bald, inconsistent, or contradicted by other parts of the answering papers.

The applicants further alleged that the respondents used vehicles to block entrances to the site on 10 November 2022; the judgment noted there was no response to that specific allegation in the answering affidavit. The applicants also relied on threats and hostility extending beyond the site, including threats affecting their head office at 539 Ontdekkers Road, Florida North, Roodepoort.

The respondents’ version, as reflected in the judgment, was that the underlying conflict concerned a payment dispute with Tri-Star and that construction was not stopped by the respondents but by the applicants themselves when the respondents were not agreeable to the applicants’ suggestions. The court considered that assertion improbable in light of the applicants’ allegations about deadlines and project delays, and in light of the admitted conflict and violence.

3. Legal Issues

The court was required to determine two issues sequentially.

The first legal question was whether the matter was urgently enrolled in terms of the applicable urgent procedure, which required the applicants to demonstrate that they could not obtain substantial redress at a hearing in due course and to set out explicitly the circumstances rendering the matter urgent. This issue primarily concerned the application of established procedural principles to the facts alleged regarding timing, ongoing threats, and the feasibility of waiting for ordinary motion court processes.

The second legal question, if urgency were established, was whether the applicants had made out a case for a final interdict, or alternatively an interim interdict pending Part B. This required determining whether the requisites for interdictory relief were satisfied, including whether the applicants had a clear right (for a final interdict) or at least a prima facie right (for interim relief), whether there was an injury committed or reasonably apprehended (or irreparable harm in the interim context), and whether there was an absence of an adequate alternative remedy. This component involved a mixed inquiry of law and fact, assessing how the legal standards for interdicts applied to the factual matrix of alleged intimidation, disruption, and admitted violence.

4. Court’s Reasoning

On urgency, the court applied the settled test that an applicant must set out explicitly the circumstances rendering the matter urgent and must explain why substantial redress cannot be obtained in due course, referring to East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd 2011 JDR 1832 (GSJ). The court emphasised that urgency depends on the absence of substantial redress, a standard distinct from (and lower than) the irreparable harm requirement for interim relief, and that delay is not necessarily fatal but may bear on whether urgency is genuine.

The respondents argued that the matter was not urgent because the events relied upon occurred earlier (in September 2022). The court, however, accepted the applicants’ account that the relevant urgent events occurred between 7 and 10 November 2022, and noted that this chronology was set out in the founding affidavit and not seriously challenged in the answering papers. In evaluating the explanation for the set-down date, the court accepted counsel’s explanation that the matter was set down for 29 November 2022 (rather than the earliest possible date) to afford respondents a reasonable opportunity to deliver answering papers, relying on the approach described in Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and others 2016 (4) SA 99 (GP), which treats the inability to obtain substantial redress as the primary enquiry and then considers other factors including respondents’ ability to present their case and any delay.

The court found that the applicants had demonstrated they would not obtain substantial redress in the normal course if the alleged conduct persisted, particularly given the ongoing threats and disruption and the asserted inaction by the police after reports had been made. It was satisfied that the urgency requirement was met.

On interdictory relief, the court recorded that the applicants sought a final interdict on the basis that they had established a clear right, with interim relief only in the alternative. The judgment nonetheless set out the requirements for an interim interdict (including prima facie right, apprehension of irreparable harm, balance of convenience, and absence of other satisfactory remedy) with reference to Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton 1973 (3) SA 685 (A), and stated the approach to evaluating a prima facie right in contested affidavit proceedings with reference to Simon NO v Air Operations of Europe AB and Others [1998] ZASCA 79; 1999 (1) SA 217 (SCA).

For the final interdict, the court applied the requisites stated in Setlogelo v Setlogelo 1914 AD 221, namely a clear right, an injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy. It understood the applicants’ right to arise from their contracted entitlement and obligation to develop the property and meet project milestones, and treated their ability to proceed with construction as a protectable interest that was being unlawfully interfered with.

In assessing harm, the court accepted that the applicants’ apprehension was reasonable in light of the respondents’ conduct described in the affidavits, including repeated disruptions, threats, and the occurrence of physical violence on 10 November 2022. It reasoned that the respondents’ conduct had already led to cessation of construction and had materially affected the applicants’ ability to meet deadlines, making further harm reasonably apprehended.

The court also addressed the respondents’ contention that the applicants should pursue criminal complaints through SAPS as an alternative remedy. The court rejected this as an adequate alternative on the facts before it, because the applicants alleged that they had approached SAPS more than once without receiving assistance, and SAPS had filed no affidavit to explain its position. In the absence of evidence contradicting the applicants’ allegations of ineffective police assistance, the court concluded that the applicants could not be said to have an alternative satisfactory remedy available.

Having found urgency and the substantive requisites satisfied, the court concluded that a proper case for a final interdict on an urgent basis had been made out and stated that it had no discretion but to grant the relief in the circumstances.

5. Outcome and Relief

The court held that the application was urgent and granted a final interdict.

The first to eleventh respondents were interdicted and restrained from interfering with the applicants’ facilities, installations, buildings, construction site and personnel at the specified property; from damaging buildings, facilities, vehicles and similar items at the property; from threatening, intimidating, harassing, or assaulting persons at the property; and from interfering with the applicants’ business activities and/or employees at the applicants’ head offices at 539 Ontdekkers Road, Florida North, Roodepoort.

The order further authorised service on the first to eleventh respondents by the erection of notice boards at entrances and strategic points around the property boundary and affixing the order to those notice boards, and/or by WhatsApp and/or email to contact details in the applicants’ possession.

The first to eleventh respondents were ordered to pay the costs of the application.

Cases Cited

East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd 2011 JDR 1832 (GSJ).

Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and others 2016 (4) SA 99 (GP).

Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton 1973 (3) SA 685 (A) at 691C–E.

Simon NO v Air Operations of Europe AB and Others [1998] ZASCA 79; 1999 (1) SA 217 (SCA) at 229G–I.

Setlogelo v Setlogelo 1914 AD 221 at 227.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The court found that the applicants satisfied the requirements for urgency, primarily because the alleged interference and threats were ongoing, had recently culminated in admitted violence, and could not be adequately remedied by awaiting ordinary motion court timeframes.

On the merits, the court held that the applicants established the requisites for a final interdict, namely a clear right arising from their entitlement and obligation to proceed with the development, injury actually committed or reasonably apprehended through threats, intimidation and disruption (including physical violence), and the absence of an adequate alternative remedy given the applicants’ uncontradicted allegations that SAPS did not provide assistance despite reports.

LEGAL PRINCIPLES

Urgency under Rule 6(12) requires an applicant to set out explicitly the circumstances rendering the matter urgent and to explain why it cannot obtain substantial redress at a hearing in due course; this enquiry is distinct from and less stringent than the irreparable harm requirement associated with interim relief, and delay must be evaluated contextually rather than treated as decisive.

A final interdict requires proof of a clear right, an injury actually committed or reasonably apprehended, and the absence of protection by any other ordinary remedy, as formulated in Setlogelo v Setlogelo 1914 AD 221.

An interim interdict requires, among other elements, a prima facie right, a well-grounded apprehension of irreparable harm, a favourable balance of convenience, and the absence of another satisfactory remedy; in assessing a prima facie right on affidavit, the approach is to consider the applicant’s allegations together with undisputed or indisputable respondent allegations and the inherent probabilities, and then to consider whether the respondent’s disputes raise serious doubt about the applicant’s case.

Blue Print Housing (PTY) Ltd and Another v Loeto and Others (048243/22) [2022] ZAGPJHC 1000 (5 December 2022)