About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 14
|
|
National Director Of Public Prosecutions v Magogodela (HCAA04/2019) [2019] ZALMPPHC 14 (15 April 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
Case
No: HCAA04/2019
In
the matter
between:
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
APPELLANT
AND
MAANO MMBANGISENI
MAGOGODELA
RESPONDENT
JUDGMENT
MULLER
J:
[1]
This appeal emanates from a judgment by Makhafola J sitting in the
Limpopo Local Division,
Thohoyandou granting an urgent application by
the respondent for the enforcement of a judgment pending the outcome
of an application
for leave to appeal. The appeal is before us by
virtue of the provisions of section 18(4)(ii) of the Superior Courts
Act
[1]
[2]
After having heard argument from counsel appearing on behalf of the
appellant an order
upholding the appeal with costs was issued due to
the urgency of the matter.
[2]
The court intimated that reasons will follow. These are the reasons.
[3]
The important background facts must be recited for a proper
understanding of the issues
involved.
On 24 August 2018
Makhafola J granted an order against the Appellant in an action which
the respondent has instituted against the
appellant for malicious
prosecution. The order reads as follows:
“
THAT
the defendant is to pay the Plaintiff the sum of R4000 000.00 (Four
Million Rand)
THAT the defendant is to
pay interest on the above amount at the prescribed rate from a date
(14) days after the date of judgement
to date of payment.
THAT the defendant is
ordered to pay psychotherapy future expenses for 8 sessions in the
amount of R78 800.00 (Seventy-Eight Hundred)
THAT
the defendant is to pay the costs of the trial of 23 August 2018.”
[3]
[4] The
appellant duly served and filed a notice of application for leave to
appeal against the judgment.
The said notice for application for
leave to appeal suspended the enforcement of the order.
[4]
When the application was heard, it was struck from the roll as being
premature. It is not at all clear why it was held to be premature
since that notice of application for leave to appeal was not
delivered before the judgment was pronounced, which would have caused
the notice of application for leave to appeal to have been premature.
It will be assumed for purposes of this judgment that the
application
was premature in the sense that the record of the proceedings and the
judgment appealed against have not been transcribed
at the time the
application was heard. The upshot of the application for leave to
appeal being struck from the roll was that the
application for leave
to appeal was still pending and the operation of the order still
suspended.
[5] The
respondent then launched an urgent application for the enforcement of
the order which was
suspended. In the founding affidavit the
respondent boldly stated that he has a
prima facie
right by
virtue of the order granted in his favour. He said that the balance
of convenience was in his favour as he will suffer
prejudice if the
order is not executed or enforced, on the one hand, but that the
appellant, on the other, will not suffer any
prejudice if the
application is granted because the order existed and that the
appellant does not have any prospects of success
on appeal. The
respondent further stated that the appellant cannot dispute that it
was ordered to pay the respondent and has shown
an unwillingness to
pay by abusing the process of court by lodging an appeal which caused
a well-grounded apprehension of irreparable
harm.
[6] The
application was opposed by the appellant. The answering affidavit was
deposed to by a state
attorney who was in charge of the case and
practiced at the Thohoyandou office of the state attorney. Several
points
in limine
were raised by the deponent in the answering
affidavit. Most importantly was the point that the respondent has not
satisfied the
requirements of section 18 of the Superior Courts Act
by failing to demonstrate, in the founding affidavit, that there are
exceptional
circumstances present for the enforcement of the order.
[7] Section
18(1) and section 18(3) of the Superior Courts Act states:
“
(1)
Subject to subsection (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)….
(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.”
[8]
The purpose of section 18(1) is to bring about certainty pending an
appeal. The subsection not only
confirms the common law rule but it
makes it more onerous. It requires an applicant, in addition, to
prove, on a balance of probabilities,
that he or she will suffer
irreparable harm if the order to enforce the order is not made. In
UFS
v Afriforum and Another
[5]
the
Supreme Court of Appeal explained:
“
It
is further apparent that the requirements introduced by ss 18(1) and
(3) are more onerous than those of the common law. Apart
from the
requirement of ‘exceptional circumstances’ in s 18(1), s
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 not
made. The application of rule 49(11) required
a weighing-up of the
potentiality 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]
The ‘exceptional circumstances’ which an applicant is
required to prove will, of course,
depend on the facts of each case,
but must be fact specific and be truly exceptional. A relevant
factor, which a court must also
consider is the prospects of success
on appeal. Put differently, an extraordinary deviation from the norm
is required.
[6]
[10] There is
no doubt that the order issued by the learned Judge at the trial is a
final order. It is trite law that
an applicant must make out his case
in the founding affidavit. The applicant has the burden to prove on a
balance of probabilities
that exceptional circumstances are present
for the order to be enforced. The applicant has set about to prove
the requirements
for an interim interdict in his founding affidavit.
Apart from setting out the common cause facts, no exceptional
circumstances
has been put forward in terms whereof the court could
enforce the order. The applicant only made an averment that the
appellant
has no prospects of success without any elaboration. The
high water mark of his application is the averment that the appellant
abused the rules of court by delivering an application for leave to
appeal because it is reluctant to pay the respondent the judgment
debt. The simple truth is that once the judgment debt is paid and the
judgment is later set aside on appeal, the horse would have
bolted.
The money would have been used. The respondent, as stated before, has
not placed an iota of evidence before the court why
the order should
be enforced immediately.
[11] This
court is unable to comment on the prospects of success as it was
neither favoured with the record of the proceedings
of the trial nor
with an explanation by the applicant what the prospects are. The
appellant considered that the award was
substantial and should be
taken on appeal on the facts and the amount awarded.
[12]
The learned Judge on 23 October 2018 granted the application with
costs and dismissed all the points
in
limine
with costs as being highly technical.
[7]
The learned Judge erred
and regrettably paid lip service to provisions of section 18(1) and
(3). The respondent has failed to adduce
any evidence whatsoever to
prove, on a balance of probabilities, that there were exceptional
circumstances in existence which warranted
the enforcement of the
order. The court held that the respondent was in need of
psychotherapy and that the suspension of the order
is prejudicial to
him to the extent that it will lead to irreparable harm. The
respondent did not rely on that fact for the relief
claimed. Nowhere
in the affidavit of the respondent is there any suggestion that he
was in urgent need of therapy or that he will
suffer psychological
harm if the therapy is suspended.
[13] The
learned Judge also held that the deponent to the answering affidavit
has no personal knowledge of the facts
and that his affidavit is
therefore defective. I do not agree. The deponent is the attorney of
record. As such he has personal
knowledge of the facts and was able
to depose to the affidavit. Even if I am wrong, that the deponent was
able to make the affidavit,
the fact remained that the respondent has
failed to cross the threshold requirement set by section 18(1) and
(3) to prove exceptional
circumstances. The application ought, for
that reason, to have been dismissed with costs.
[14]
Subsequent to the application being granted the appellant delivered a
notice of appeal to appeal the order to enforce
the execution of the
judgment in the action in terms of section 18 (4)(ii) which affords
the appellant an automatic right of appeal
to this court. The
appellant also launched an urgent application on 4 December 2018 in
terms of rule 45A to suspend the execution
of the judgments. The
application came before Kgomo J who granted orders suspending the
operation and execution of the judgments
granted by Makhafola J
pending the outcome of the leaves to appeal and subsequent appeals in
the High Courts. The court also granted
an interdict against the
sheriff to stop him from removing the goods attached by him pursuant
to the judgment in the action.
[15] This
contents of the order granted by Kgomo J is not an impediment to
pursue the appeal in this court. The appeal
to this court remained
unaffected. The appeal is directed at the effect of an order which is
subject to an application for leave
to appeal or an appeal. The rule
45A application dealt with the suspension of the execution of an
order which is not subject to
an application for leave to appeal or
an appeal.
[16]
In the premises I am of the view that the appeal should be upheld.
ORDER
1.
The
appeal is upheld with costs inclusive of the costs of two counsel.
2.
(a) The order dated 23 October 2018
directing that the order is
enforceable pending
the outcome of an application for leave to appeal is set aside and
replaced with the following order:
(b)
“The application is dismissed with costs.”
GC MULLER
JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION, POLOKWANE
I, Agree and is so
ordered
EM MAKGOBA
JUDGE PRESIDENT OF
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I, Agree
M MANGENA
ACTING JUDGE OF THE
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
APPEARNCES
FOR APPELLANT
:
ADV T.F
MATHIBEDI SC
:
ADV MADHAVHA
FOR RESPONDENT
:
NO APPEARANCE
DATE OF HEARING
:
29 MARCH 2019
DATE OF JUDGMENT
:
15
April 2019
[1]
Act10 of 2013.
[2]
There was no
appearance on behalf of the respondent despite proper notice.
[3]
Hereinafter “the
order”.
[4]
In terms of the
common law rule of practice the execution of a judgement is
generally suspended upon noting of an appeal. See
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977
(3) SA 534
(A) 544H-545A. See also s 18(1) of the Superior Courts
Act.
[5]
[2016] ZASCA 165
(17 November 2016) par 10.
[6]
UFS v Afriforum
and Another supra
para
13.
[7]
It is
unnecessary to deal with any of the grounds for urgency or all the
points
in
limine
.