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[2019] ZAFSHC 102
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Manyanyani Security Services CC v Sedibeng Water and Another (2003/2019) [2019] ZAFSHC 102 (18 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2003/2019
In
the matter between:
MANANYANI
SECURITY SERVICES CC
Applicant
(Registration
Number 2006/081992/23)
and
SEDIBENG
WATER
First
Respondent
M.A.
SHASHA, ACTING CHIEF EXECUTIVE
Second
Respondent
CORAM:
MOROBANE,
AJ
JUDGMENT:
MOROBANE,
AJ
HEARD
ON
:
14
JUNE 2019
DELIVERED
ON:
18
JUNE 2019
[1]
This is
an urgent application by which the applicant seeks an interdict
prohibiting the first respondent from implementing the cancellation
of an agreement pending the outcome of the arbitration proceedings.
The application is opposed by the first respondent (“Sedibeng
water”) and the second respondent.
[2]
On 10 May
2019 my brother Loubser, J postponed the application to the opposed
roll on 13 June 2019, which rolled over to the following
day. The
answering affidavit, the replying affidavit and the heads of argument
were duly filed in terms the Court order.
[3]
The brief
facts are that on 03 June 2010 and at Bothaville the parties
concluded a non-renewable security service agreement (“the
Contract”) for the provision of security services by the
applicant. On 31 May 2015 the five years’ contract came to
an
end. A month to month extension of the contract was granted by
Sedibeng water as from 1 June 2015 subject to a one month’s
notice. The applicant accepted the offer and the contract is still in
operation to date. On 26 April 2018, Sedibeng water served
the
applicant with a one month’s notice of the cancellation of the
month to month agreement. As a result, the applicant referred
a
dispute for arbitration and, on 20 March 2019, the arbitrator issued
an award on preliminary issues as identified by the parties.
[4]
Counsel
for the respondents submitted that these proceedings lacked urgency
as contemplated in the Uniform Rules. He submitted that
the applicant
created its own urgency. For instance, on 18 April 2019, Sedibeng
water instructed the applicant to vacate its premises
by 12 May 2019.
Eight days later the applicant objected to the instruction and
refused to vacate the premises on the set date.
The founding
affidavit was signed on 5 May 2019, but it was only served on 7 May
2019. The application was set down for hearing
on 10 May 2019, two
days before the date on which the applicant was to vacate the
premises.
[5]
The
provisions of Rule 6(12) of the Uniform Rules read as follows:
‘
(a)
In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as to it seems meet.
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this sub rule, the applicant shall
set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not
be afforded
substantial redress at a hearing in due course.’
[6]
The
establishment of a prima facie right, or a prima facie case, became
the basis according to the traditional approach, of the
threshold
test which had to be satisfied by an applicant in order to succeed in
his application for an interim interdict (see CB
Prest, Law and
Practice of Interdicts, Juta 1996 at 57).
[7]
In
LF Boshoff Investment (Pty) Ltd v Cape Town Municipality
1969 (2) SA
256
(CPD) at 267A-F, the court confirmed the requirements for a
temporary relief urgent interdict as: a clear right or a prima facie
right which the applicant seeks to protect, tough open to some doubt;
in case of a prima facie right, a well- grounded apprehension
of
irreparable harm to the applicant if the interim relief is not
granted and he ultimately succeeds in establishing the right;
that
the balance of convenience favours the granting of the interim
relief; and the applicant has no other satisfactory remedy.
[8]
It was
submitted on behalf of the applicant that the matter is urgent with
reference to paragraphs 10 to 13 of its founding affidavit.
This
Court is called upon to protect the integrity of the arbitration
proceedings which the respondents are alleged to have disregarded,
disrespected and circumvented. It also stated as follows:
‘
10.1
That this matter is urgent can, equally, permit of no doubt. The
Respondents are determent to either by hook or by crook to
get rid of
the provision of security services contact between the Applicant and
the First Respondent. They are determined to do
so even in total
respect of the constitutional injunction enshrined in Section 34 of
the constitution.’
[9]
The
applicant alleged that it has taken all reasonable steps to prevent
this litigation, but was put in the most unenviable position
of
having to do so by the conduct of the second respondent. It has no
other remedy other than to approach the court with no inconvenience
to the Sedibeng water. According to its statement of claim, the
matter still needs to be arbitrated upon. Also, that the applicant
will suffer irreparable harm if this application were to be dismissed
since 34 families stand to suffer harm.
[10]
In its
affidavit, the applicant maintains that the respondents are in
contempt as the arbitration proceedings are not concluded.
The
arbitration clause provides that “any award” made by the
arbitrator shall be final and binding on the parties.
Its contention
is that the matter must still be arbitrated upon despite an interim
award being issued. In summary, the applicant
seeks the relief on the
same points that was already decided on in the interim award.
[11]
It is
upon the applicant to establish on the papers before the court a
prima facie case. In Caledon Street Restaurant CC v Monica
D’
Aviera
[1998] JOL 1832
(SE) at 7-8 the court said:
‘
It
is incumbent on the applicant to persuade the court that the non-
compliance with the rules and the extent thereof were justified
on
the grounds of urgency. The intent of the rules is that a
modification thereof by the applicant is permissible only in the
respects and to the extent that is necessary in the circumstances.
The applicant will have to demonstrate sufficient loss or damage
were
he to be compelled to rely solely or substantially on the normal
procedure. The court is enjoined by rule 6(12) to dispose
of an
urgent matter by procedures “which shall as far as practicable
be in terms of these rules”. That obligation must
of necessity
be discharged by way of the exercise of a judicial discretion as to
the attitude of the court concerning which deviations
it will
tolerate in a specific case.’
[12]
Once the
arbitrator has made a ruling on a preliminary point, he becomes
functus officio and cannot revisit his earlier ruling with
another.
The interim award deals with issues which, in the normal process,
they cannot be altered by him other than confirming
the same. In that
respect, the interim award has a final effect and stands to be
reviewed by the court or another appropriate body.
[13]
The
applicant failed to set forth the circumstances which renders his
application urgent. It has failed to give an explanation about
the
eight days’ delay in reacting to the letter from Sedibeng
water. In the same breath, there is an alternative relief other
than
by an urgent application which is contractual in nature. In my
opinion, the matter is not urgent and the requirement of an
interim
interdict were not satisfied. The applicant failed to make out a case
for the relief sought and the application should
fail.
[14]
I
accordingly make the following order:
1.
The
application is struck from the roll for lack of urgency, with costs.
V.M.
MOROBANE, AJ
On
behalf of the applicant:
Adv. B Knoetze SC
Instructed
by: Mogotsi Attorneys BLOEMFONTEIN
On
behalf of the 2nd respondent:
Adv. MDJ Steenkamp
Instructed
by: Honey Attorneys BLOEMFONTEIN