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[2018] ZALMPPHC 26
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Minister of Science and Technology v Bredenkamp and Another (5261/2017) [2018] ZALMPPHC 26 (25 May 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 5261/2017
2018/5/29
In
the matter between:
MINISTER
OF SCIENCE AND
TECHNOLOGY
APPLICANT
and
CHRISMA
BREDENKAMP
1
ST
RESPONDENT
WOLKBERG
FRUIT PROCESSORS (PTY) LTD
2
ND
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an application in terms of Section 18 of the Superior Courts
Act, 10 of 2013 (“the Act”) for the operation
and
execution of a Court order pending the outcome of the Respondents’
application for leave to appeal, including the appeal,
if any, to be
noted.
[2]
The Respondents have filed an application for leave to appeal against
the judgment of this Court dated 16 March 2018 which judgment
was
delivered on 20 March 2018
[3]
In this application the Applicant seeks an order that the operation
and execution of the aforesaid judgment is not suspended
pending the
decision on the application for leave to appeal or the appeal.
[4]
In terms of the aforesaid judgment and order the First and Second
Respondents are directed and ordered to return to the Applicant
certain movable assets listed in Annexure “A” to the
Notice of Motion which were removed by the Respondents from the
Applicant. The Court made a finding that the Applicant is the lawful
owner of the said movable assets.
[5]
In terms of section 18 of the Act once an application for leave to
appeal has been filed the judgment and order of the Court
is
suspended pending the decision of the application for leave to appeal
or appeal unless the Court, under exceptional circumstances,
orders
otherwise.
[6]
The appropriate provisions of section 18 of the Act read as follows:
“
18(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.
18(2)
……………….
18(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 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.”
[7]
Under the common law practice the Court to which the application for
leave to execute is made has a wide general discretion
to grant or
refuse leave and, if leave be granted, to determine the conditions
upon which the right to execute shall be exercised.
See:
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 545 C
.
[8]
Section 18 of the Act introduces a fresh test for leave to put into
operation and execute an order pending the appeal process
and
accordingly, judicial authority that predates the section has been
overtaken by its enactment.
In
Incubeta
Holdings (Pty) Ltd v Ellis
2014 (3) SA 189
(GJ) at 194 B – D
Sutherland J stated the position as follows:
“
The
thesis advanced on behalf of Respondents is that the discretion
hereto exercised by the Court is history, and that one must
now look
exclusively to the text of section 18.
Emphasis
was placed on the heavy onus on the litigant who seeks to execute an
order, pending an appeal, as formulated on ss 18(1)
and (3).
It
seems to one that there is indeed a new dimension introduced to the
test by the provisions of section 18. The test is twofold.
The
requirements are:
·
First, whether or
not exceptional circumstances exist and
·
Second, proof on a
balance of probabilities by the Applicant of –
-
The presence of
irreparable harm to the applicants / 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”.
[9]
The test for leave to put into operation and execute an order pending
the appeal was authoritatively set out in a more recent
judgment of
the Full Court (per Ranchod, Fabricius and JW Louw JJ) Gauteng
Division, Pretoria in the matter
of
Member of the Executive Council for Co-Operative Governance, Human
Settlements and Traditional Affairs (COGHSTA) and Others v
Mogalakwena
Municipality and Another
, Case Number
A484/2016
dated
10 November 2016
at paragraphs [24] – [25].
See
also, more recently, the Supreme Court of Appeal decision in
University
of the Free State v Afriforum and Another
[2016] ZA SCA 165
(17
November 2016)
at para [9] – [11], now reported as
2018 (3) SA 428
(SCA).
[10]
It is clear therefore that in terms of the present legal dispensation
the Applicant must prove three jurisdictional requirements
on a
balance of probabilities: namely:
10.1.
Exceptional circumstances;
10.2.
Irreparable harm to the Applicant if the order is not granted; and
10.3.
That the Respondent will not suffer irreparable harm if the order is
granted.
If
the above jurisdictional requirements are met, the Court has
discretion to
grant
or dismiss the application. Such discretion should be exercised in
the interest of justice.
[11]
In
Incubeta
Holdings (Pty) Ltd v Ellis supra
,
Sutherland J held:
“
[22]
Necessarily, in my view, exceptionality must be fact-specific. The
circumstances which are or may be “exceptional”
must be
derives from the actual predicaments in which the given litigants
find themselves”.
[12]
I now proceed to examine the facts of the present application in
order to determine the predicaments of the litigants herein
so as to
make a finding as to 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.
[13]
The following circumstances and / or considerations come to the fore
upon my analysis of the facts of this case:
13.1.
The Respondents’ prospects of success on appeal are poor;
13.2.
As at the date of the filing of the application for leave to appeal
the judgment and order of this Court had been partly executed
by the
Sheriff of Court, Tzaneen. Therefore the application for leave to
appeal cannot undo what has been done in terms of the
judgment. The
proverbial horse has bolted.
13.3.
This matter involves the return of assets that were meant to service
the community of Nkowankowa by the Department of Science
and
Technology through the Nkowankowa Demonstration Centre. Failure to
execute the Court order immediately will negatively affect
service
delivery to the community.
13.4.
The assets are depreciating in value in the hands of the Respondents.
In the event that the appeal by the Respondents is unsuccessful,
which is most likely, by the time the appeal is finalised the goods
would have been lost to the Applicant and the entire community
of
Nkowankowa.
13.5.
The Respondents will not be in a financial position to reimburse the
Applicant and the community for the aforesaid goods.
13.6.
If the goods are released to the Applicant, the Applicant is in a
position to guarantee their safety and above all the Applicant
is a
State organ and is able to restore the value of the goods if it is
ultimately found that the Respondents are entitled to the
goods.
[14]
In my view the aforegoing circumstances sufficiently satisfy the
novel
prejurisdictional
requirements of section 18(3) of the Act. It is clear from the
circumstances given above that the Applicant would
suffer irreparable
harm if the judgment and order is not put into operation. On the
other hand the Respondents do not stand to
suffer irreparable harm if
the Court orders that the judgment be executed despite the pending
appeal.
[15]
In the result I grant the following order:
(1)
The
judgment and order of this Court dated 16 March 2018 and delivered on
20 March 2018 shall operate and be executed pending the
outcome of
the application for leave to appeal, including any appeal noted, if
at all.
(2)
The
Applicant is exempted from furnishing security in terms of Rule
49(12) of the Uniform Rules of Court.
(3)
There
shall be no order as to costs.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on : 25 May 2018
Judgment
Delivered : 25 May 2018
For
Applicant : Adv. Mokhwetyana
Instructed
by : State Attorney - Pretoria
c/o
Mashamba Inc - Polokwane
For
Respondents : No appearance