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[2016] ZAGPPHC 248
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Mphefhedzi Business Enterprise CC v Members of the Executive Council Responsible for the Department of Health, Limpopo and Another (2016/22705) [2016] ZAGPPHC 248 (20 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
20/4/2016
CASE NO: 2016/22705
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
MPHEFHEDZI BUSINESS
ENTERPRISE
cc APPLICANT
and
MEMBERS OF THE EXECUTIVE
COUNCIL
RESPONSIBLE FOR THE
DEPARTMENT OF
HEALTH,
LIMPOPO FIRST
RESPONDENT
THE MINISTER OF
HEALTH SECOND
RESPONDENT
JUDGMENT
COLLIS AJ:
INTRODUCTION
[1] In this urgent
application the Applicant seeks a stay of execution of an order
[1]
granted by Mokgohloa J on 1 March 2016. The order was granted by the
High Court of South Africa, Limpopo Division, Polokwane, under
case
number 450/2016. It is apposite to mention that the Second Respondent
was not a party to the proceedings launched in the Limpopo
Division.
BACKGROUND
[2] It is common cause
between the Applicant and the First Respondent that the Applicant was
awarded a contract in terms of which
the Applicant was required to
render laundry services to various hospitals falling under the
auspices of the Mec for Health, Limpopo.
As part of the contractual
obligations that the Applicant had to execute; it was required at
various intervals to collect dirty
linen from hospitals mentioned in
the Court order and to return such linen after it had been sterilized
and cleaned. As a result
of a breach of the contract by the Applicant
and other complaints received, the First Respondent approached the
Limpopo Division,
Polokwane for an order suspending the contract.
THE LAW
[3] Uniform Rule 45A
provides as follows:
"The court may
suspend the execution of any order for such period as
it may
deem fit."
Erasmus Superior Court Practice at D1 - 603 with
reference to a number of decided cases, states the following:
'As
a
general
rule the court will grant
a
stay of execution where real and
substantial justice requires such
a
stay or, put otherwise,
where an injustice
would otherwise be done. Thus the court
will grant
a
stay of execution where the underlying causa of
the judgment debt is being disputed or no longer exits, or when an
attempt is made
to use for ulterior purposes the machinery relating
to the levying of execution. It has been held, that in particular
circumstances, the court could, in the determination of the factors
to be taken into account, in the exercise of its discretion under
this rule, borrow from the requirements for the granting of an
interlocutory interdict, namely that the applicant must show
(a)
the right which is the subject of the main action and which he
seeks to protect by reason of the interim relief is clear, or if not
clear, is prima facie establish though open to some doubt; (b) that
if the right is only prima facie established, there is
a
well-grounded apprehension or irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in
the
establishing of his right; (c) that the balance of convenience
favours the granting of interim relief,· and (d) that
the
applicant has no other satisfactory remedy.'
GROUNDS OF OPPOSITION
[4] The Respondent in
opposing the application raised several grounds in opposition, which
grounds I list below as follows:
4.1. lack of urgency of
the application;
4.2. abuse of court
process;
4.3. lack of
jurisdiction; and
4.4. failure on the part
of the applicant to have satisfied the requirements for interim
relief.
Lack of urgency of the
Application
[5] The Applicant in
paragraph 12 of its founding affidavit
[2]
addresses the
urgency
of the
application. Therein the applicant sets out that pursuant to the
court order granted by Mokgohloa J on 1 March 2016, the
First
Respondent instructed the Sheriff to execute in terms of such order
on 16 March 2016. However, in the process of execution,
the Sheriff
attached linen belonging to other clients of the Applicant.
Furthermore, as the order granted by Mokgohloa J is not
appealable,
the only avenue available to the Applicant is to challenge the terms
of the underlying contract in the event of the
Applicant succeeding
with its pending rescission application. The rescission application
was launched before the Limpopo Division
on 3 March 2016.
[3]
In addition thereto, the Applicant alleges that the pending
rescission application does not suspend the execution of the order
and it is for this reason that an application in terms of Rule 45A
was launched. It is further alleged that if the present application
was to be enrolled in the ordinary motion roll it would defeat the
object to be obtained by the pending rescission application
as the
order would already have been executed upon. Lastly the Applicant
contends that it has good prospects of success with its
pending
rescission application and as such this application should be
considered on an urgent basis.
[6] In opposition the
Respondent alleges that the Applicant first became aware of the Court
order on 1 March 2016 and that it remained
supine until 17 March
2016, being the date upon which the current application was launched.
The Applicant as a consequence was
enjoined to account to the court
what brought about the delay in the launching of the present
application and that it has failed
to explain its inaction for the
entire period of approximately 15 days. Furthermore, that as the
Applicant has already launched
a rescission application it ought to
have explained to this court why it did not seek the relief sought in
the present application
simultaneously with the launching of the
rescission application. It has failed to do so and it is for the
above reasons that the
Respondents contend that the Applicant has
failed to demonstrate the harm or prejudice which is worthy of
protection let alone
that it should be protected on an
urgent
basis.
[7] An urgent application
brought in terms of the provisions of Rule 6(12)(a), involves mainly
the abridgment of times prescribed
by the rules and, secondarily, the
departure from established filing an sitting times of the court.
[4]
Urgency does not relate only to some threat to life or liberty; the
urgency of some commercial interest may justify the invocation
of the
sub rule no less than other interest.
[5]
[8] In evaluating urgency
in the present application I considered that a litigant
upon obtaining an order from
a court has several options available to
it, i.e. the abandonment of its order so obtained, the execution of
the order or the utilization
of the order as an inducement to settle
the dispute between the parties. The Respondents before this court
elected to execute their
court order on 16 March 2016 and during such
process had attached linen which belonged to other customers of the
Applicant. This
execution of the court order was common cause between
the parties and it thus became the trigger which resulted in the Rule
45A
application being launched before this court. As a result I
cannot agree with the submission made by counsel acting for the
Respondents that the Applicant has failed to explain its inaction
from 1 March 2016 to 17 March 2016 as
ex facie
the papers, the
application was launched a day following the day of the execution of
the court order.
[9] An application
brought in terms of Rule 45A is substantive in nature. It provides
for different requirements which have to be
met in order for a
litigant to succeed with it. It follows that the relief sought in
terms of the rule need not be sought simultaneously
with the
launching of a rescission application, or with the launching of any
other application. Where a litigant elects to bring
a separate and
distinct substantive application in terms of Rule 45A, such litigant
cannot be penalised for making such an election.
This has been the
avenue selected by the Applicant and such avenue did not of necessity
call for an explanation. The Applicant
is cited as a business
enterprise and it follows that in the ordinary course of business it
would have a commercial interest to
protect. In appropriate
circumstances such protection of commercial interest may be sought on
an
urgent
basis. It is for the cumulative reasons alluded to
above, that I conclude that the application was urgent under the
circumstances
which justified the invocation of Rule 6(12)(a).
Lack of jurisdiction
[10] Section 21 of the
Superior Courts Act
[6]
regulates
which person over whom and matters in relation to which Divisions
have jurisdiction. The section is listed
herein below for ease of
reference and it reads as follows:
“
21
Persons
over whom and matters in relation to which Divisions have
jurisdiction
(1)
A
Division has jurisdiction over all persons residing or being in, and
in relation to all causes arising and all offences triable
within,
its area of jurisdiction and all other matters of which it may
according to law take cognisance, and has the power-
(a)
to
hear and determine appeals from all Magistrates' Courts within its
area of jurisdiction;
(b)
to
review the proceedings of all such courts;
(c)
in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.
(2)
A
Division also has jurisdiction over any person residing or being
outside its area of jurisdiction who is joined as
a
party to
any cause in relation to which such court has jurisdiction or who in
terms of
a
third party notice becomes
a
party to such
a
cause, if the said person resides or is within the area of
jurisdiction of any other Division.
(3)
Subject to section 28 and the powers granted under section 4
of the Admiralty Jurisdiction Regulation Act, 1983 (Act 105 of 1983),
any Division may issue an order for attachment of property to confirm
jurisdiction."
[11] Before this court,
the Second Respondent is cited as follows:
"The Second
Respondent is the MINISTER OF THE DEPARTMENT OF HEALTH OF THE
REPUBLIC OF SOUTH AFRICA, a Minister of the
Department of
Health in the National level and or a Political head responsible for
the administration of the Department of Health
in the National level
under whose auspices the Department of Health resorts, with its
principal place of business in PRETORIA,
GAUTENG PROVINCE whose full
and further particulars are unknown to me."
[12] From the citation of
the Second respondent it is apparent that the Second respondent is an
incola
of this court and if one has regard on the submissions
made by counsel acting on behalf of the Applicant, the Second
Respondent has purely been joined in these proceedings, because
on a national level it has an interest in these proceedings.
Be that
as it may, with reference to section 21, this court has jurisdiction
over the person of the Second Respondent.
[13] It is common cause
between the parties, that the First Respondent and the Applicant
neither reside nor are they domiciled within
this court's
jurisdiction. Further, neither has the cause of action arose within
this court's area of jurisdiction. In relation
to the First
Respondent, Chapter 6 of the Constitution, Act 108 of 1996,
specifically section 103 thereof, designates the various
provinces in
the Republic and through section 104 vests legislative authority of a
province in the provincial legislature. Section
125 specifically
stipulates that executive authority of a province is vested in the
Premier of that province and the Premier together
with other members
of the Executive Council, exercises executive authority over a
province.
[14] The First Respondent
in her
nomine officio
is a member of the Executive Council,
responsible for the Department of Health in the Limpopo Province, a
provincial department
constituted in terms of section 7(2)(b) of the
Public Service Act, Act No. 103 of 1994 and listed in Column 1 of
Schedule 2 thereof.
[15] Having regard to the
above, it is apparent that the First Respondent functions
independently from other spheres of government.
[16] In addition to the
above, section 6 of the Superior Courts Act stipulates that the High
Court of South Africa consists amongst
others of the following
Divisions, namely in terms of section 6(1)(c) the Gauteng Division,
with its main seat in Pretoria and
in terms of section 6(1)(e) the
Limpopo Division, with its main seat in Polokwane.
[17] Section 6(3)(e)
further provides, that the Minister responsible for the
administration of justice must, after consultation
with the Judicial
Service Commission, by notice in the Gazette, determine the area
under the jurisdiction of a Division, and may
in the same manner
amend or withdraw such notice.
[18] Section 50(2)
provides that the Gauteng Division shall also function as the Limpopo
and Mpumalanga Divisions, respectively,
until by notice published in
terms of section 6(3) in respect of those Divisions comes into
operation. Government Gazette No. 39601
was published on 15 January
2016, which set out the areas of jurisdiction which falls under the
Limpopo Division and this publication
brought about an end to the
transitional arrangement provided for by section 50(2).
[19] During the hearing
of the matter, counsel acting on behalf of the Applicant was unable
to refer this court to any authority
to support his argument that
this court had the necessary jurisdiction to entertain this
application and as such could not take
the matter any further.
[20] In light of the
above, and given the fact that the Second Respondent was not a party
to the proceedings launched in the Limpopo
Division, I conclude that
this court lacks the necessary jurisdiction to adjudicate this
application. This ground of opposition
I find, disposes of the
application in its entirety and as such I find it unnecessary to
express an opinion on the remaining merits
of the application.
COSTS
[21] In respect of the
appropriate costs order to be awarded, Counsel appearing on behalf of
the Respondents had argued that as
courts are public institutions
under severe pressure, court rolls should not be congested by
unwarranted proliferation of litigation.
This application it was
argued is unmeritorious and it is for this reason that counsel had
sought a costs order against the deponent
of the founding affidavit
and the instructing attorney of the applicant, the one paying the
other to be absolved.
[22] Given the fact that
this court lacks the necessary jurisdiction to entertain this
application, I am of the opinion that a punitive
cost order would be
appropriate under the circumstances.
ORDER
[23] In the result the
following order is made:
23.1 The application is
dismissed with costs awarded on an Attorney and Client scale.
_____________
C. J. COLLIS
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
APPEARANCES
FOR APPLICANT: ADV
RAMAPHOSA
INSTRUCTED BY:
THIKHATHALI MASHIKA ATTORNEYS
FOR FIRST, SECOND &
THIRD RESPONDENTS: ADV MOTSHWENE
INSTRUCTED BY: STATE
ATTORNEY, PRETORIA
DATE OF HEARING: 24 MARCH
2016
DATE OF JUDGMENT: 19
APRIL 2016
[1]
See in this regard Index page 441
[2]
See in this regard Index page 92
[3]
See in this regard Index page 395
[4]
Luna Meubel Vervaardigers (Edms) Bpk v Makin (Ua Makin's Furnisher
Manufacturers)
1977 (4) SA 135
(W) at 136H
[5]
Twentieth Century Fox Film Corporation v Anthony Black Films (Pty)
Ltd
1982 (3) SA 582
(W) at 586G
[6]
Act 10 of 2013 commencing on 23 August 2013