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[2020] ZALMPPHC 13
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Calvin Electronics t/a Batavia Trading and Another v Multichoice Support Services (Pty) Ltd (8200/2019) [2020] ZALMPPHC 13 (14 April 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HJGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF INTEREST
TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE NO 8200/2019
14/4/2020
CALVIN
ELECTRONICS T/A BATAVIA TRADING
1
ST
APPLICANT
MUOUMELA CALVIN
THITOVHELWI
2
ND
APPLICANT
and
MULTICHOICE
SUPPORT SERVICES (PTY) LTD
RESPONDENT
JUDGMENT
TSHIDADA, AJ
1.
This
is an urgent application brought by the Applicant in terms of Section
18 of the Superior Court Act, No. 10 of 2013, read with
Rule 49(11)
of the Uniform Rules of Court ("the Act"), for an order to
allow the operation and execution of the order
granted by MG Phatudi
J on the 5th February 2020, (which order I note from the record is a
subject of an appeal) to be read and
considered in conjunction,
alternatively as part of a judgment delivered on the 26
th
November 2019 by Makgoba JP.
2
The
well-established common law rule of practice in our courts has been
that, generally the execution of a judgment is automatically
suspended upon the noting of an appeal, with the
result
that pending the appeal, the judgment appealed cannot be executed and
no effect can be given thereto, except with the leave
of the court
which granted the judgment. See the matter of
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd 1977(3)
SA.
[1]
The intended purpose of the rule was
to prevent irreparable damage being done to the intending Appellant
by the execution of the
judgment pending appeal.
3
However,
Section 18 of the Act introduces a test for leave to put into
operation and execute an order pending the appeal process.
Its
enactment has overtaken the judicial authority that predates it.
4
In
casu,
the Applicant brings this
urgent application in terms of Section 18 of the Act, seeking for an
order in the following terms:
4.1
To
the extent necessary, condoning the Applicant's non-compliance with
the rules of this court relating to the forms and service,
and for
the hearing of this application on an urgent basis in terms of Rule
6(12)(a). I pause to state that, after considering
the papers and
listening to both counsel's submissions, I found that the matter was
urgent and that this court should deal with
it as such on an urgent
basis.
4.2
That
leave to be granted that the order granted by Phatudi J on the 5
th
February 2020 operates and be executed as part of a judgment
delivered by Makgoba JP on the 26
th
November 2019, pending the outcome of the application for leave to
appeal Phatudi J's order and the pending review application
launched
by the Applicants on the main application.
4.3
Costs
of the application against the Respondent.
5
In
an application in terms of Section 18 of the Act, the Applicant in
such application bears the onus to establish three distinct
propositions:
5.1
The
Applicant must demonstrate that exceptional circumstances exists in
his case based on the established facts of his case.
5.2
Applicant
must prove on a balance of probabilities that he will suffer
irreparable harm, if the order is not granted.
5.3
Lastly,
it must be proven on a balance of probabilities that the Respondent
will not suffer harm if the order is granted.
6
Keightly
J, in her unreported judgment of
Mobile
Telephone Networks (Pty) Ltd v Vodacom (Pty) Ltd and Another
stated
the following:
"...
The Court is required to make a
determination on the probabilities of the alleged irreparable harm
occurring. This is consistent
with the purpose of Section 18, which
is to prevent a party from suffering irreparable harm, while appeal
proceedings are pending.
Its purpose is rooted in the realities and
practicalities of the parties' situations. It follows that the
determination of irreparable
harm must also address these realities
and practicalities. In other words, the court must determine whether,
in reality, it is
more probable than not that the Applicant (or the
Respondent as the case may be) will suffer irreparable harm. As the
court noted
in lncubeta, this inevitably requires the court to make
a
qualitative assessment of the existence of irreparable harm: as to
irreparable harm is
a
qualitative decision admitting some
scope for reasonable people to disagree about the presence of the
so-called "fact"
of "irreparability".
7
Section 18 of the Act reads as follows:
"Suspension of decision pending
appeal
1.
Subject
to sub-sections (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.
Subject
to sub-section (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of
a
decision on 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 an appeal, is not suspended
pending the decision of
the application or appeal.
3.
A
court may only order otherwise
as
contemplated in sub-section (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 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 sub-section(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.
5.
For
the purposes of sub-section (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
a
notice of appeal is lodged with the
Registrar in terms of the rules."
8
The
test to be applied by a court in deciding whether or not to suspend a
court order by virtue of the provisions of Section 18(1)
has been the
subject of considerable judicial scrutiny, to the extent that
conflicting decisions have been delivered with regards
to whether or
not the court ought to take into account the question of prospects of
success on appeal. The above question was settled
by the Supreme
Court of Appeal in the matter of
University
of the Free State v Afriforum
2018 (3) SA 428
(SCA) para.9- 15.
In that matter, the appeal court found that the
legislature has proceeded from established premise of the common law
that the granting
of relief of this nature constitutes an
extra-ordinary deviation from the norm that, pending an appeal, a
judgment and its attendant
orders are suspended. The exceptionality
of such an order is also underscored by the requirements of Section
18(4), which provides
for
inter alia,
an automatic right of
appeal on an urgent basis. The appeal court also found that the
requirements introduced by Section 18(1) and
(3) are more onerous
than the common law requirements which existed previously and that
which Section 18(3) has introduced.
9
In
lncubeta
Holdings (Pty) Ltd v Ellis
supra
at paragraph 22, Sutherland J held:
"Necessity, in my view, exceptionality
must be fact-specific. The circumstances which are or may be
"exceptional"
must be derived from the actual predicament
in which the given litigants find themselves."
10
I
proceed to scrutinize the facts
in
casu
in order to determine the
predicaments of the parties herein so as to determine whether
exceptional circumstances do exist and to
what extent each party
stands to suffer irreparable harm in the event of the application
being granted or dismissed. The Applicants
avers in their founding
papers that exceptional circumstances exist in their case that
enjoins the court to grant the relief sought
in its application in
terms of Section 18 of the Act as set out in the Applicant's notice
of motion.
11
It
is common cause between the parties that, during April 2016, the
Applicants concluded a written Accredited Installer's Agreement
with
the Respondent. On or about the 30
th
September 2019, the Respondent terminated the agreement on a 30 days
notice. The Applicants disputed such a termination on the
basis that
the Respondent was not entitled to effect termination of their
agreement in the manner it did.
12
On
the 21st November 2019, the Applicants launched a review application
to review the Respondent's decision to terminate their agreement,
which application is still pending. Shortly thereafter, the
Applicants brought an urgent application before this court to
interdict
the Respondent from
implementing
the termination pending the review. Makgoba JP granted the
interim
interdict pending the said review in favour of the Applicants and
further ordered the Respondent to restore and reinstate
the
Applicants onto the Respondent's system known as CLARITY and SAP.
13
During
November 2019, the Respondent complied with the Makgoba JP's order by
restoring and re-instating the Applicants' access into
their system.
On or about January 2020, the Respondent revoked the Applicants'
access to their system again, this time on allegations
of fraud
allegedly perpetrated by some of the Applicant's employees on the
Respondent's system. This court is however not going
to delve much on
the said allegations, reason being that civil proceedings were
instituted by the Respondent in this regard, and
no finding or rather
a ruling was made on the matter by the court, instead the court which
was ceased with the application decided
to postpone the hearing
sine
die
pending the appeal launched by
the Respondent against Phatudi J's order.
14
To
put facts in clear perspective and sequence of events that led to
this application, the following unfolded. After the Respondent
revoked the Applicant's access to the system in January 2020, on the
4
th
February 2020, the Applicants instituted civil proceedings before
this court for contempt of court order
by the Respondent on an urgent basis challenging the revocation of
their access into the
system against the court order for restoration
and reinstatement granted by Makgoba JP.
15
After
the hearing of the said urgent application, Phatudi J found on the
day that the Respondent was indeed in contempt of Makgoba
JP's
interim order. Consequent thereto, the Respondent sought reasons in
terms of Rule 49(1)(c) for his order. The above notice
was
accompanied by a notice to apply for leave to appeal the same order.
16
On
the 11
th
February 2020, or hardly a week after the urgent application before
Phatudi J, the Rule 49(1)(c) notice and the application for
leave to
appeal his order, the parties appeared before Campbell AJ at the
South Gauteng High Court in Pretoria, wherein the Respondent
sought a
declaratory order to confirm cancellation or termination of the
parties agreement, largely on allegations of fraud perpetrated
by
some of the Applicants employees, which allegations by the
Respondent's own uncanned admission which is almost impossible to
understand was neither reported as a criminal offence to the South
African Police Service. However, at the end of the said hearing,
the
court postponed the application
sine
die
pending the determination of the
appeal launched by the Respondent against Phatudi J's order.
17
The Applicants then launched the current
application on urgent basis. The Applicants premised this application
on Section 18 of
the Act on the following grounds:
17.1
That this matter was certified urgent on
two previous occasions on the same issue which remains unresolved
i.e. that the Respondent
continues to deny the Applicants access into
the system contrary to the parties agreement, as a result the
Applicants are put in
the same position that was prayed for in the
previous hearings.
17.2
That in the main, due to the revocation
of access, the Applicants and their employees are suffering severe
business financial loss,
in that since the closure of the business,
the Applicants are incurring escalating rental costs from the leased
business premises.
There is also no earnings or income generated for
their living.
17.3
Lastly, that given the situation, the
Applicants are and continue to suffer serious prejudice and
irreparable harm far much more-greater
than the Respondents.
18
In
argument, the Applicants further submitted that, the operation of the
order in any event means that, the more the Applicants
attends to the
calls logged by all Respondent's
customers
in their designated areas, be it installation of new DSTV units,
attendance of network connections or any other related
complaints,
the Applicants or its employees whilst on site generates revenue
which in turn gets paid to the Respondents to make
profits from their
service.
19
Incontrovertible,
the Respondent's opposition is based on allegations of alleged fraud
perpetuated by certain Applicants' employees.
Before me, counsel for
the Respondents conceded that the Respondent did not take any further
steps to meet with the Applicant's
to see how best both parties could
deal and address the alleged discovery by the Respondent, save for
one of its officials writing
emails to the Applicants who in turn
undertook to conduct parallel investigations on the allegations.
20
I
have already expressed my views on the allegations herein. I find it
startling why such a serious matter as it were according
to the
Respondent, was not reported to the SAPS as the alleged conduct
clearly amounted to a criminal offence pending resolution
of the
problem at the civil proceedings. No persuasive reason was advanced
to the court for such a glaring omission, not unless
in the contrary,
the aim, attitude and insistence is simply to terminate the agreement
without the parties engaging each other
and attempting to find an
amicable solution to the problem. That I find unsustainable.
21
I
am of the view that, if the Respondents intention was to attend and
deal with the problems discovered in conjunction with the
Applicants,
with all the systems in place and the advance technology at the
Respondent's disposal, for all intense and purposes
any of its
contracted agents, not necessarily the Applicants herein, must/should
accordingly be notified of any illegal and/or
unlawful activities
being perpetrated by any of its employees, and if detected such an
employee/s access to the system must be
terminated with immediate
effect without necessarily terminating or revoking the entire
agreement, because in certain instances,
it can be assumed that the
Agent might not even be aware of what some of its employees are doing
on the client system rightly or
wrongly, my emphasis.
22
I
am convinced that flowing from the above, the Respondent is and would
be in a position if looked at closely to deal with the issue
raised
to address and ameliorate any further potential harm on its side
pending the appeal to be heard before Phatudi J. For that
matter, it
could address any harm by any of its agents or by the agents'
employees.
23
The
circumstances outlined in paragraph 17.1 to 17.3 above constitutes,
in my view, exceptional circumstances calling for the intervention
of
this court by way of implementing
the
provisions of Section 18 of the Act. The conduct of the Respondent is
prejudicial to the Applicants and continues to cause irreparable
financial loss of earning to the Applicants.
24
Given
the prolonged completion process of appeal, and if the noted appeal
herein is to proceed in the superior court of this division,
that
will entail forfeiture of substantial relief and loss of income to
survive by the Applicants. This in my view qualifies as
"exceptional
circumstances".
25
The
Applicants were successful in the two previous applications pending
the review application in the main, therefore should not
be deprived
the benefit of the said orders by the unfortunate unpredictable
appeal court process. It was undisputed that the Applicants
are since
the refusal of access to the system by the Respondent been unable to
meet their business financial obligations let alone
their personal
and employees financial life expenses.
26
In the circumstances, the Applicants
have made out a case, demonstrated and proved on a balance of
probabilities that they will
suffer irreparable harm if the two
orders granted in their favour are not implemented pending the
outcome of the application for
leave to appeal.
27
I
am therefore satisfied with the relief sought by the Applicants in
this matter in terms of Section 18 of the Superior Court Act,
10 of
2013 and, I accordingly grant the following order:
27.1
The Order granted by this court on the
5
th
February 2020 as part of the judgment delivered on the 26
th
November 2019 shall operate and be executed in full, pending the
outcome of the application for leave to appeal to be heard before
this Court.
27.2
The Applicants are exempted from
furnishing security in terms of Rule 49(12) of the Uniform Rules of
Court.
27.3
The Respondent is ordered to pay the
costs of this application.
T C TSHIDADA
ACTING
JUDGE
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
1.
For the Applicants
: Adv. Ndlokovane
Instructed by
: Mvundlela & Associates Attorneys
2.
For
the Respondent
: Adv. M Sello
Instructed by
: Cliffe Dekker Hofmeyr Inc.
3.
Date of hearing
: 28 February 2020
4.
Date to be delivered
: 14 April 2020
[1]
p. 543(A) at 544-545