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[2020] ZALMPPHC 45
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Makhado Local Municipality and Another v Makhado and Another (HCAA04/2020; 542/2020) [2020] ZALMPPHC 45 (3 July 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED:
YES
CASE
NO: HCAA04/2020
COURT
A QUO
CASE NO: 542/2020
In
the matter between:
MAKHADO LOCAL
MUNICIPALITY
1
ST
APPELLANT
THE
MUNICIPAL MANAGER
2
ND
APPELLANT
And
MAKHADO
NANCY
1
ST
RESPONDENT
ESTATE
LATE
MAKHADO
2
ND
RESPONDENT
JUDGMENT
MUDAU, J:
[1]
This is an appeal in terms of section 18
(4)
of the Superior Courts Act 10 of
2013 (the Act). The application served before the Limpopo Local
Division, Thohoyandou (per Makhafola,
J). The parties are referred to
as they were cited in the main application for convenience purposes.
The first and second respondents
have come on appeal against the
order by the court of first instance on 4 June 2020 in which it
granted paragraphs 1.1-1.5 of the
applicants' notice of motion
pending the determination of an application for leave to appeal
regarding the main application. The
court a
quo
made the order that has been brought
on appeal consequent upon an application by the applicants in terms
of section 18(3) of the
Act. After an agreement with counsel, this
appeal was disposed of without further oral submissions in open
court, pursuant to
section 19
(a) of the
Superior Courts Act.
[2
]
The respondents are exercising their automatic right of appeal
against that
order conferred in terms of section 18 (4) (ii) of the
Act. This Court, on appeal, is enjoined by section 18
(4)
(iii) of the Act to deal with the
appeal as "a
matter of extreme
urgency".
Section 18
(4)
(iv) of the Act provides that the
order of the court a quo is automatically suspended pending the
outcome of an appeal. Accordingly,
a court on appeal is therefore
able to substitute its finding for that of the court of first
instance if it is convinced, for reasons
founded in law or grounded
on a different finding on the facts, that the application should have
yielded a different outcome
[1]
.
[3]
Under the common law, it is well established that once an appeal is
lodged
the order under appeal is automatically suspended. The
judgment by Corbett JA (as he then was) in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[2]
has been the leading judicial authority for that proposition. A party
could, however, apply for leave to execute the order notwithstanding
the appeal. Rule 49(11) of the Uniform Rules of Court (which has
since been repealed) restated the common-law position that an
appeal
suspended the execution of an order. Under the common law, a court
had a wide discretion whether to allow or refuse execution
of a court
order. This common law rule of practice was adopted in Uniform Rule
of Court 49(11), promulgated under the Supreme Court
Act 59 of 1959.
In relevant part the rule read as follows:
"Where
an appeal has been noted or an application for leave to appeal
against
. . .
an
order of
a
court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
.
. . ,
unless the court which gave
such order, on the application of
a
party, otherwise directs."
[4]
The Supreme Court Act 59 of 1959 has been repealed and replaced by
the
Act that came into operation on 23 August 2013. Subsequent
thereto on 22 May 2015, rule 49(11) was also repealed.
[5]
Section 18 of the Act provides:
"Suspension of decision pending appeal
(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)
Subject to subsection (3), unless the
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)
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.
(5)
For the purposes of subsections (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.
"
[6] The
upshot of
section 18(1)
- (3) of the
Superior Courts Act received
thorough consideration by my brother, Sutherland J in
lncubeta
Holdings (Pty) Ltd and another v Ellis and another
[3]
. At the time,
rule 49(11)
, provided:
"Where an appeal has been noted or an
application for leave to appeal against or to rescind, correct,
review or vary an order
of
a
court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or
application, unless the court which gave such order, on the
application of
a
party,
otherwise directs.
"
[7]
Sutherland J's observation that the requirement, in terms of
section
18(3)
, that a party making application in terms of that provision
must prove
"the presence of
irreparable harm to the applicant/victor, who wants to put into
operation and execute the order; and the absence
of irreparable harm
to the respondent/loser, who seeks leave to appeal"
that
introduces "a
new dimension"
has since been approved in several
court decisions. As to what would constitute exceptional
circumstances, Sutherland J, in
lncubeta,
looked for guidance to an earlier
decision (on admiralty law), namely,
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas and another
[4]
where it was recognised that it was not possible to attempt to lay
down precise rules as to what circumstances are to be regarded
as
exceptional and that each case has to be decided on its own facts.
However, at 156H- 157C, the court said the following:
"What does emerge from an examination
of the authorities, however,
seems
to me to be the following:
1.
What is ordinarily contemplated by
the words 'exceptional circumstances' is something out of the
ordinary and of an unusual nature;
something which is excepted in the
sense
that
the general rule does not apply to it; something uncommon, rare or
different; 'besonder', 'seldsaam', 'uitsonderlik', or 'in
hoe mate
ongewoon'.
2.
To be exceptional the circumstances
concerned must arise out of, or be incidental to, the particular
case.
3.
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.
4.
Depending on the context in which it
is used, the word 'exceptional' has two shades of meaning: the
primary meaning is unusual or
different; the secondary meaning is
markedly unusual or specially different.
5.
Where, in a statute, it is directed
that a fixed rule shall be departed from only under exceptional
circumstances, effect will,
generally speaking, best be given to the
intention of the Legislature by applying
a
strict rather than a liberal meaning
to the phrase, and by carefully examining any circumstances relied on
as allegedly being exceptional."
[8] In
University of the Free State v
Afriforum and Another
[5]
the Supreme Court of Appeal remarked at para [10] as follows:
"It
is further apparent that the requirements introduced by
sections
18(1)
and (3) are more onerous than those of the common law. Apart
from the requirement of "exceptional circumstances" in
section 18(1)
,
section 18(3)
requires the applicant "in
addition" to prove on
a
balance
of probabilities that he or she "will" suffer irreparable
harm if the order is not made, and that the other party
"will
not" suffer irreparable harm if the order is made. The
application of
rule 49(11)
required
a
weighing-up of the potentiality of
irreparable harm or prejudice being sustained by the respective
parties and where there was a
potentiality of harm or prejudice to
both of the parties,
a
weighing-up
of the balance of hardship or convenience, as the case may be, was
required.
Section 18(3)
, however, has introduced
a
higher threshold, namely 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".
[9] In
Ntlemeza v Helen Suzman Foundation
and another
[6]
the SCA observed:
" It must also
be borne in mind that before the advent of
section 18
, the position
at common Jaw was that the court had
a
wide general discretion to grant or
refuse an execution order on the basis of what was just and equitable
whilst appreciating that
the remedy was one beyond the norm".
[10] With the above
background, it is appropriate that I now turn to the facts and
circumstances of the
present matter, before delving into the merits
or otherwise of this appeal. The litigious background to the matter
is largely common
cause. On 8 December 2016, Bono Vision Design (the
lessee), a company duly incorporated in accordance with the company
laws of
South Africa, duly represented by Moses Makhado (deceased)
and the Makhado Local Municipality (the lessor and 1
st
respondent), represented by its Acting Municipal Manager (the 2
nd
respondent) entered into a lease agreement for the erection of a
digital LED TV display billboard. The billboard was erected behind
what is commonly known as Tshakhuma Market (named after its village),
next to the main artery road leading to Thohoyandou. The
main purpose
of the lease agreement was for advertisement. The first applicant is
the executrix of the estate of her late husband,
the deceased. The
second applicant is the estate of the deceased.
[11] The applicants in
the main application alleged that, the estate and thus the executrix
of the estate
were the successors in title to a lease agreement in
respect of a billboard situated at the market. According to the first
applicant
during March 2020, she was advised to remove her billboard
from the market due to a construction project underway at the market.
On her version, the billboard was functional as at 11 March 2020 but
was dysfunctional by 14 March 2020. Following a meeting, the
second
respondent advised the applicant's attorneys of record that the
construction project will stop with immediate effect and
in fact did
so, on 27 March 2020 at the commencement of the Covid19 lockdown
period.
[12] By 6 May
2020 however, the construction work had recommenced. There were
interactions between
the applicant and certain municipal officials in
the course of which it was said that unless the lease agreement
otherwise provided,
the removal of the billboard would be the first
respondent's responsibility and that the applicants would be entitled
to damages
for past and future losses. The first applicant supports
herself and her dependents through income received from advertisement
revenue. On the respondents' version, the construction of the
Tshakhuma market or the market upgrade project, is in two phases,
to
a total value of R15 million.
[13] Before the
commencement of the construction project, the market accommodated
approximately 300
informal market stalls. However, the market lacked
adequate public hygiene requirements in that there was
inter
alia,
no fresh supply water, kitchen
facilities, adequate parking and the necessary ablution facilities.
The completed project will have
120 large stalls to accommodate a
minimum of 300 'stallholders' with formal parking, kitchen facilities
for selling prepared food
to patrons, a borehole and a 20 000 L water
storage dam. Once completed, the projects will bring much needed
relief to the vendors
and their customers in alleviating excessive
congestion in the market and unhygienic conditions. From inception,
the project was
conceived as a six-month project to be completed by
July 2020. However, due to attendant delays, the project commenced on
16 March
2020 and is likely to take more than the six-month initially
envisaged given the Covid-19 pandemic and lockdown restrictions
imposed
by the Government of the Republic.
[14] In the
primary proceedings before the court of first instance, the
applicants had sought certain
prohibitory and mandatory relief
premised on their contentions based on a lease agreement referred to
above with the respondents.
The main proceedings were launched as a
matter of alleged extreme urgency on 13 May 2020. The respondents
were required to notify
the applicant's attorneys in writing of their
intention to oppose the application on or before 13 May 2020 by
15h30, and to deliver
their answering affidavit(s) by 11h30 on or
before 14 May 2020, which they duly complied therewith on truncated
basis in that,
the respondents were given less than two court days to
file their answering papers. The matter came to hearing on the
Friday, 15
May 2020 and, as mentioned, the order granting the relief
sought was given on Saturday, 16 May 2020. No reasons were furnished
by the court of first instance on that occasion.
[15]
The court of first instance granted the applicants the following
relief:
"1. That the
application is urgent.
2.
Pending
the calculation of the past loss of income and future loss of income
suffered by the applicant(s) Andy which was caused
by the 1
st
and/or 2nd respondents' conduct which
income would have been generated by the billboard which belongs to
the applicant(s) and with
billboard is situated at and/or around
and/or next to Tshakhuma market, Vuwani District, Venda, Limpopo
Province, where the development
and/or construction is taking place,
such the development and/or constructions shall forthwith stop.
3.
Pending the undertaking by the 1
st
and/or 2
nd
Respondent to remove and place the
billboard at the place chosen by the 1st applicant and also that such
undertaking shall also
include that the 1
st
and/or 2
nd
Respondents shall bear all the costs
of the removal and the placing of the billboard at the place chosen
by the 1st applicant, the
development and/or construction which is
taking place at and/or next and/or around Tshakhuma market shall
forthwith stop..
4.
Pending the fulfillment of paragraph
2 and
3
above,
all the machines, including the scavator, TLB, lorries, truck (s) or
Roller and/or any machine shall forthwith be removed
from the sight
by the 2
nd
respondent where the development
and/or construction is taking place which development is at and/or
next and/or around Tshakhuma
market.
5.
Ordering the 2
nd
Respondent to pay costs of this
application on attorney and own client scale."
[16] The reason for the
timing of the application in terms of
section 18(3)
on 3 June 2020
given in the supporting affidavit was the discovery that the
respondents filed a notice to appeal albeit in the
absence of reasons
for the order by the court of first instance. On 4 June 2020, the
court of first instance granted the applicants'
interim leave to
execute the above-mentioned Court Order save on the issue of costs.
Section 18(4)(i) of the Act prescribes that
a court which makes an
exceptional order pursuant to an application in terms of section
18(3) "must immediately record its
reasons for doing so".
[17] A person must have
the requisite legal capacity to be a party to a lawsuit. That is a
well-established
principle of our law. The attack against the order
is based on more than one ground. It is unnecessary to traverse all
of them
for reasons that will become obvious in this judgment. First,
the application in terms of section 18 (3) of the Act was launched
and served on the respondents at 13H00 hrs on Saturday 30 May 2020,
outside normal court hours and set down for 11h30 on Wednesday,
3
June 2020 again on truncated basis, before the court of first
instance could give its reasons for the main order granted on 16
May
2020. The respondents contended that they were prejudiced as the
application, which is the subject matter of this appeal, was
launched
prematurely whereas they were only obliged to file a notice of
application for leave to appeal within 15 days after the
reasons for
judgment had been handed down in terms of the applicable Rule.
[18]
Counsel for the respondents', Mr Watt-Pringle SC contended in his
written heads of argument
that, save for the alleged lease agreement,
no other right in respect of the leased property, being the
billboard, was alleged
by the respondents (applicants) in their
founding affidavit in the main application. To the extent that the
applicant relied upon
a written lease agreement between a juristic
entity, Bono Vision Design, to lease from the first appellant (the
first respondent),
it is apparent that neither the applicants nor the
deceased has or had any lease agreement in respect of the billboard.
It was
a point taken
in limine,
which
in my respectful
view ,
is
valid. This point alone is dispositive of this appeal.
[19]
It is trite that, company is a juristic person with its own
property and have legal rights and liabilities and that it can sue
and
be sued in its own name
[7]
.
The separate personality of a company and its entity is distinct from
its shareholders. Therefore, a company itself is capable
of owing
property, being a party to a contract, and being a claimant or
defendant in legal proceedings. A shareholder is a natural
and legal
person who invested capital in the company. The shareholder generally
own right to vote and they can participate in the
affairs of the
company through the general meetings. In this regard, the applicants
assert, without more, in their founding affidavit
in support of the
section 18 (3) application that:
"
[l]t is trite law that the executrix or executor of an estate
acquires all the rights and obligations which are attached
to the
deceased at the time of his or her death".
However,
the
Companies Act, 71 of 2008
and attendant Regulations, regulate the
appointment, role and responsibilities of directors in a company.
Clearly, the position
of a director cannot be inherited and
accordingly, cannot form part of the deceased's estate.
[20] It is
trite that for purposes of section 18 (3) of the Act, an applicant
bears the onus
pending the determination of an appeal process to
satisfy the following requirements: (a) that there are exceptional
circumstances
justifying the implementation of the order despite the
appeal process, (b) that the applicant will suffer irreparable harm
if the
operation and execution of the order is suspended pending such
appeal process and (c) that the respondent will not suffer
irreparable
harm if the order is granted pending the appeal process..
[21] The
respondents contend that the order by the court of first instance
purports to provide
status quo relief pending the vindication of
certain rights enjoyed by the applicants but goes much further than
that and provides
the final relief in spite of the court a court's
finding to the contrary. Properly distilled, the premise on which the
main order
was granted is that the deceased estate has succeeded to
the leasehold rights over the electronic billboard. Since the
billboard
ceased working, presumably due to the construction work
carried out at the market, the applicants have a claim for both past
and
future losses for lost revenue. Mr Watt-Pringle contended that,
had the applicants sought an order for specific performance, the
court would have been able to entertain an application for a
mandamus
requiring the respondents to ensure
that the billboard remain where it was or was moved to a suitable
place. Consequently, such
an order could either have been final if
there was no material dispute of facts or interim, pending the final
determination as
to whether the applicants are entitled to specific
performance.
[22]
However, the court of first instance's main order, so it was argued,
is final in effect,
in that the applicants' alleged leasehold rights
were finally determined in their favour. This is because the order is
not made
pending any final determination of those rights, which the
respondents placed ownership of the billboard and the land where it
was erected, in dispute. Besides, the applicants on their version
defaulted on the lease agreement. In para 8.26 of the founding
affidavit in the section18 (3) it is stated: "
I
was paying the rental even though not all the months. ).
[23] The
order in paragraph 2 effectively interdicts the construction project,
pending calculation
of the applicants' loss of past and future income
from the rental agreement. Inherently, the order assumes that the
applicants
are entitled to recover past and future loss of income,
which order cannot be revisited by the court of first instance as it
disposed
of the rights of the parties in that regard. The assumption
made in the order that the applicants will suffer future losses was
on the basis that the lease agreement has been cancelled in which
event; the applicants are not entitled to specific performance,
but a
damages claim. Counsel for the respondents contends that, if the
respondents have already suffered pecuniary losses and will
suffer
future losses as the court of the first instance found, the need for
an interdict was unnecessary as they could simply claim
that which is
due to them. This contention is meritorious. There is no plausible
reason why the vindication of the applicants'
rights, if any,
requires the construction work to be halted.
[24] It was
contended on behalf of the applicants by Mr Ramaite SC, and as the
court of first instance
concluded that, its judgment is interlocutory
in nature. It is trite that the granting of an interim interdict
pending an action
is an extraordinary remedy within the discretion of
the Court (See Eriksen
Motors
(Welkom) Ltd v Protea Motors, Warrenton and Another)
[8]
. The requisites for an interim interdict (on the authority of
Setlogelo v Setlogelo
[9]
is as follows:
"(a) a right
which, 'though prima facie established, is open to some doubt';
(b)
a well grounded apprehension of irreparable injury;
(c)
the absence of ordinary remedy".
[25]
However, it is trite that in determining whether a decision is
appealable "not merely
the form of the order must be considered
but also, and predominantly, its effect"
[10]
.ln
Zweni v Minister of Law and Order
[11]
the following was said by Harmse AJA (as he then was): (at
532J-533B):
" A Judgment or order' is
a
decision which, as
a
general principle, has three
attributes, first, the decision must be final in effect and not
susceptible of alteration by the Court
of first instance; second, it
must be definitive of the rights of the parties; and, third, it must
have the effect of disposing
of at least
a
substantial portion of the relief
claimed in the main proceedings
...
The second is the same as the
oft-stated requirement that
a
decision, in order to qualify as
a
judgment or order, must grant
definite and distinct relief'
(footnote
omitted)
[26] The
applicants primarily regurgitate the contents of the founding
affidavit in relation to the
main order in support of the section
18(3) application. In my view, they failed to cross the first
barrier, and that is, the onus
is on them to prove the existence of
exceptional circumstances to justify the order sought. Without more,
the applicants suggest
and the court of first instance found, that
the respondents would not suffer any prejudice if the orders were
granted. The facts
of this matter are clearly distinguishable from
the facts in
Confuscore (Pty) Ltd v
Ehlers and Others
[12]
;
a judgment by this court (per my brother, the Honourable Makgoba JP)
relied upon by the applicants. The judgment does not come
to the aid
of the applicants. In
Confuscore,
Makgoba JP granted an application in
terms of section 18 (3) in circumstances where ownership in respect
of certain immovable property
was beyond doubt. These were farms
bought on public auction and transfer of ownership already effected
by the Registrar of Deeds.
The application for leave to appeal having
failed, the court concluded in essence, that the previous owners had
no right discernible
in law to hold onto the property in granting the
section 18 (3) application.
[27] Section
18(1) however states, in peremptory terms, that an order implementing
a judgment pending
appeal shall only be granted
"under
exceptional circumstances".
The
exceptionality of an order to this effect is underscored by section
18(4), which provides that a court granting the order must
immediately record its reasons and that the aggrieved party has an
automatic right of appeal. Furthermore that, the appeal must
be dealt
with as a matter of extreme urgency and that pending the outcome of
the appeal the order is automatically suspended. As
Binns-Ward J
stated in the
Minister of Social
Development Western Cape and others v Justice Alliance of South
Africa and Another
[13]
(Fortuin and Boqwana JJ concurring):
"...
the less sanguine
a
court
seized of an application in terms of s 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 s 18(3)."
[28] In
University
of the Free State v Afriforum and Another
[14]
.
the SCA was of the view that
Justice
Alliance
serves as a prime example
why the prospects of success in the appeal are relevant in deciding
whether to grant the exceptional relief.
In attempting to meet the
requirement of exceptionality in the founding papers, the applicants
based their argument upon the premise
that,
"the
main application was launched, prosecuted and adjudicated on urgent
bases"
(sic). In addition that,
the suspension of the court order because of
"the
application for leave to appeal creates/causes the status quo to
prevail' ,
which will cause them to
suffer irreparable harm.
[29] In granting the
section 18(3) order, the court of first instance reasoned with
reference to paragraphs
34 to 43 of the applicants' founding papers
"proves that for the purposes of
this application the unchallenged averments by the applicants
relating to the irreparable
harm they would suffer and that no
irreparable harm or prejudice would issue to the respondents has
(sic) discharged the onus that
they bear on a balance of
probabilities".
The court of
first instance reasoned that its evaluation
"serves
to found reasons (sic) for granting the prayers of the application in
favour of the applicants".
The
respondents contend that they have strong prospects of success on
appeal given the applicants' lack of standing in relation
to the
lease agreement, which is not materially disputed coupled with the
over breadth of the interdicts which by far exceed any
relief
required to protect the applicants' rights, if any.
[30] As
Binns-Ward J observed in
Justice
Alliance
case, it is not the
function of this Court to in any manner pre-empt the appeal in the
principal case, but it is unavoidable for
current purposes, having
regard to the basis given for the interim order, that we should
consider how well-grounded the court a
quo's reason was in the
context of the evidence and the applicable statutory provisions . The
court of first instance reasoned,
in summary that, the applicants
will suffer irreparable harm in the absence of an income from the
billboard without execution of
the prior order as opposed to the
respondents.
[31] I have
serious difficulties to see how this could amount to an "exceptional
circumstance"
as envisaged in section 18(1) of the Act. It is
nothing more than an inconvenience, and a partisan commercial
interest, which confronts
numerous litigants in civil proceedings,
daily. To the contrary, with the respondents now precluded from
continuing with the construction
of the market project, it has the
potential to waste substantial public resources incurred because of
increased costs in completing
the project. The project is likely to
suffer undue delay. The applicants do not dispute this. These are
substantive averments,
which clearly underscore the conclusion that
the respondents would suffer irreparable harm in the event of the
order of the court
of first instance not being suspended pending
appeal. As Moseneke DCJ held:
"when
a
court
weighs up where the balance of convenience rests, it may not fail to
consider the probable impact of the restraining order
on the
constitutional and statutory powers and duties of the state
functionary or organ of State against which the interim order
is
sought
[15]
.
[32] The
prohibitory interdict against the respondents, most importantly, has
the effect of undermining
the local community and the public at
large's access to water and adequate hygienic conditions in conflict
with the fundamental
rights to human dignity (section 10 of the
Constitution) as well as water security (section 27(1)( c) of the
Constitution) protected
by the Bill of Rights. That cannot be in the
interest of justice given the totality of the facts regarding this
matter. As to the
interests of justice, the Chief Justice had this to
say in Tshwane City v Afriforum and another
[16]
at para 40:
"The over-arching role of interests of
justice considerations has relativised the final effect of the order
or the disposition
of the substantial portion of what is pending
before the review court, in determining appealability".
The learned CJ continued and echoed the
principle set out in OUTA by Moseneke DCJ in these terms:
"This Court has granted leave to appeal
in relation to interim orders before. It has made it clear that the
operative standard
is 'the interests of justice'. To that end, it
must have regard to and weigh carefully all germane circumstances.
Whether an interim
order has
a
final
effect or disposes of
a
substantial
portion of the relief sought in
a
pending review is
a
relevant and important consideration.
Yet, it is not the only or always decisive consideration. It is just
as important to assess
whether the temporary restraining order has an
immediate and substantial effect, including whether the harm that
flows from it
is serious, immediate, ongoing and irreparable
[17]
.
[33] To the
extent that the court of first instance concluded that its order was
not final, in my
respectful view, it did not determine an outcome or
even provide a timescale within which such reconsideration must be
completed.
The effect of the order was final. This serves to
underscore the issue of whether the applicants were entitled to an
interdict
that was finally decided by the court of first instance
despite its views to the contrary. In my respectful view, the
requirement
of section 18(3), namely, proof by the applicant's on a
balance of probabilities that the implementation of the order pending
appeal
would not cause irreparable harm to the respondents has not
been met.
[34] By way of
another example, para 4 of the order appealed against is to the
effect that pending
compliance with the orders in para 2 and 3 all
machinery and vehicles must be removed from the construction site.
This is an unnecessary
burden likely to cause irreparably harm on the
respondents and an inconvenience which is most likely to escalate
attendant costs
and completely unnecessary once the construction
activities were brought to a stop. It is beyond any imaginable
comprehension why
the presence of relevant machinery and vehicles on
site, might inconvenience the vindication of the applicants' rights
in any way.
[35] In my
respectful view, the factual premise for the primary reason offered
by the court a quo
for the exceptional order made by it had thus not
been established in the main proceedings, which is likely to cause
the applicants
a serious struggle at the appeal stage. In view of the
above, the section 18 (3) application was misconceived and ought to
have
been dismissed. In the result, the appeal should succeed. For
the reasons discussed above in my view, the court of first instance
should not have granted the application in \terms of
section 18(3)
of
the
Superior Courts Act and
that the appeal must be upheld.
[36] Then there
is the aspect of prospects of success on appeal against costs on a
punitive scale
granted to the applicants in the main application.
Although the question of costs is a discretionary issue that rests in
the court
of first instance
[18]
,
the court of first instance is silent with regard to why costs in a
punitive scale (attorney and own client scale) were awarded
to the
applicants in that regard by reason of special considerations arising
either from the circumstances or conduct of the respondents.
[37] There is no
suggestion of clear vexatious and reprehensible conduct on the part
of the respondents.
In the absence of weighty consideration, it calls
into question whether the discretion was judicially exercised. It is
trite that
failure to furnish proper reasons amounts to a grave lapse
of duty and a serious impediment to the appeal process
[19]
.
Finally, there is the issue of costs regarding this appeal. This is a
purely factual question, i.e. whether or not the three requirements
for relief in section 18 of the Act were met. There is no reason why
the question of costs should not follow the result. It follows
that
an award of costs against the applicants in this appeal as they were
unsuccessful is warranted.
[38]
In the result, the following order is made:
1.
The appeal is upheld with costs, including the costs of two counsel.
2.
The order of the court a quo is set aside and substituted with the
following:
"The application to execute the order of
this court delivered on 16 May 2020 is dismissed with costs."
MUDAU
J
[Judge
of the High Court]
I
agree
MAKGOBA
J P
[Judge
President of the High Court,
Limpopo
Division]
I
agree
TSHIDADA
AJ
[Acting
Judge of the High Court
Date of Hearing:
3 July 2020
Date of Judgment:
3 July 2020
APPEARANCES
For
the Appellant:
C E Watt-Pringle SC
Adv. S Monyela
Instructed
by:
Lebeya And Associates Attorneys
For the
Respondent: M
S Ramaite SC
Instructed by:
Anton Ramaano Attorneys
[1]
Knox D'Arcy Ltd and others v Jamieson and others
[1996] ZASCA 58
;
1996 (4) SA
348
(A), [1996)
3 All SA 669
(A) at 360D- 362F (SALR) and
Trencon
Construction(Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and another
2015 (5) SA 245 (CC)
[2]
1977 (3) SA 534
(AD) [also reported at [1977) 4 All SA 53 (A).
[3]
2014 (3) SA 189 (GJ)
[4]
2002 (6) SA 150 (C)
[5]
[2017] 1 All SA 79 (SCA)
[6]
[2017] 3 All SA 589
(SCA) at para [20]
[7]
See generally
My Vote Counts NPC v Minister of Justice and
Correctional Services and Another
[2018] ZACC 17
Case CCT 249/17
at para [64].
Oadoo Ltd and Others v Krugerdorp Municipality
Council
1920 AD 530
;
Ngcwase v Terblanche
1977 (3) SA 796
(A) and
Universiteit van Pretoria v Tommie Meyer Films
1979
(1) SA 441 (A).
[8]
1973 (3) SA 685
(A) at 691C
[9]
1914 AD 221
at 227)
[10]
(South African Motor Industry Employers' Association v South
African Bank of Athens Ltd
1980 (3) SA 91
(A), a passage
approved in, inter alia, Zweni's case (supra) at 5321,
Trope and
Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 271F-G
and Trakman's case (supra) at 289E.) Zweni v Minister of Law and
Order 1993 (1) SA 523 (A)
[11]
Above footnote 9.
[12]
2019/2016 [2019] ZALMPPHC 2 (1 February 2019
[13]
[2016] ZAWCHC 34
[14]
supra
[15]
Para 46,
National Treasury and Others v Opposition to Urban
Tolling Alliance and Others (Road Freight Association
as
applicant for leave to intervene)
2012 (11) BCLR 1148 (CC),
2012 (6) SA 223 (CC).
[16]
2016 (6) SA 279
(CC),
[2016] JOL 36299
(CC); (2016] ZACC 19 (CC);
2016 (9) BCLR 1133 (CC)
[17]
Ibid at 40
[18]
Ferreira v Levin NO and Others
[1996] ZACC 27
;
1996 (2) SA
621
(CC).
[19]
See
Boles and another v Nedbank Ltd
1983 (3) SA 27
(A) at
27H- 28A;
Strategic Liquor Services v Mvumbi NO and Others
2010
(2) SA 92
(CC) at 96G-97A and
Commissioner, South African Revenue
Service v Sprigg Investment 117 CC t/a Global Investments
2011 (4)
SA 551
(SCA) at 561A- E.