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[2016] ZAGPPHC 572
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Tapuch v Aswagen and Others (19980/2016) [2016] ZAGPPHC 572 (11 May 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO:
19980/2016
DATE:
11 MAY 2015
In
the matter between:
JOHAN
ARTHUR
TAPUCH
APPLICANT
And
HENNING
JONATHAN VAN ASWAGEN
1
st
RESPONDENT
HENNING
JONATHAN VAN ASWEGEN N.O.
2
nd
RESPONDENT
VANESSA
VAN ASWEGEN
N.O.
3
rd
RESPONDENT
CORNELIUS
JOHANNES PETRUS GERHARDUS
MALAN
N.0.
4
th
RESPONDENT
J
U D G M E N T
KUBUSHI,
J
[1]
The matter before me emanates from a written Cattle Grazing Agreement
("the agreement") entered into between the applicant
and
Versatex Trading 486 (Pty) Ltd ("Versatex"). In terms of
the said agreement the applicant leased the farm known as
the
Remaining Extent of Portion 2 of the farm [Caywoodshope 3..,
Christiana measuring 9.., 2164 hectares ("the farm"),
from
Versatex]. Christiana is situated within the magisterial district of
Lekwa - Teemane in the North West Province.
[2]
It is common cause that the applicant was in terms of the agreement
entitled to and did graze his cattle on the farm in exchange
for a
monthly consideration of R5 000, subject to the rights of all other
occupants of the farm and provided that he will have
the right to use
the farm in such a way as to cause minimum interference to any other
rightful occupiers of the farm. The agreement
itself was terminated
in July 2015 but the applicant did not remove all his cattle from the
farm and also continued paying the
monthly consideration of R5 000.
[3]
It is alleged by the applicant that at all relevant times hereto he
was in free and unfettered possession of the farm and that
he was
dispossessed of such possession when the first respondent moved about
250 cattle onto the farm. [4] On 11 March 2016 the
applicant
prosecuted an urgent application, before Legodi J, against the first
respondent. The first respondent is a trustee and
representative of
the Henning Van Aswagen Family Trust ("the Trust"). It
needs to be said that in the initial application
the first respondent
was cited as the only respondent. The other trustees of the Trust
attempted to join the proceedings and to
lodge a counter application
against the applicant but their applications were dismissed by the
court. In the application before
me all the trustees are cited hence,
the four respondents. The first respondent is cited both in his
personal capacity and in his
capacity as a trustee of the Trust.
[5]
Pursuant to the application launched on 11 March 2016, the applicant
obtained an interim order
(" rule nisf')
directing the
first respondent, in his personal capacity, to remove cattle
allegedly owned by the first respondent from the farm.
[6]
Prior to obtaining the said
rule nisi,
the applicant had on 10
March 2016 approached the North West Division of the High Court for
the same order he was granted in this
court, but the matter in that
court was removed from the roll on the basis that the North West
Division of the High Court, Mafikeng,
did not have jurisdiction to
adjudicate the matter.
[7]
The
rule nisi
obtained by the applicant on 11 March 2016 was
returnable on 21 April 2016. The first respondent anticipated the
return date of
the
rule nisi
to 22 March 2016. On that date,
the matter served before Mabuse J and it proceeded only on the issue
of whether this court was endowed
with the requisite jurisdiction to
pronounce upon matters arising from and concerning the town of
Christiana. The said issue of
jurisdiction was raised by the first
respondent as a point in law in terms of uniform rule 6 (5)
(e)
(iii) and also by the court
mero
motu.
[8]
The matter was argued on that day but was postponed to 24 April 2016
for further argument on the question of jurisdiction. On
that day,
and after argument by the parties, the matter was further postponed
to 6 April 2016. When the matter appeared before
Mabuse J on the
postponed date, he discharged the
rule nisi
and made a further
declaratory order the terms of which are as follows:
"IT
IS ORDERED THAT
1.
The aforesaid
rule nisi
be and is hereby
discharged
with
costs on the basis that this Gauteng Division lacks
locus
standi.
2.
The jurisdiction of this Division over an area known as Lekwa -
Teemane in which Christiana is located has been excluded by
Government Notice 30 of 15 January 2016.
3.
It is the North - West Division that has jurisdiction over
Christiana by reason of it being situated within the
Magisterial District of Lekwa Teemane.
4.
Application for intervention is similarly dismissed with
costs."
[9]
It needs to be said that on 12 March 2016 and in compliance with
the
rule nisi
of Legodi J, the first respondent removed all
the cattle from the farm. However, on 12 April 2016 and after the
order granted
by Mabuse J, the first respondent in his personal
capacity and in his capacity as a trustee and representative of
the Trust
again moved approximately 120 heads of cattle onto the
farm which is now the subject of the application before me.
[1O]
The applicant's contention is that prior to 10 March 2016, he had
unfettered use of the farm and that the actions of either
the first
respondent in his personal capacity and/or his capacity as a trustee
of the Trust by putting their cattle on the farm
for grazing purposes
effectively deprived the applicant of the use of the grazing facility
on the farm. The first respondent refused
to remove the said cattle
from the farm. This resulted in the applicant launching the
application serving before me now. The application
was issued
ex
parte
on an urgent basis and called for a spoliation order
on the following terms:
"[1]
That the non-compliance with the rules pertaining to service and form
be condoned and that this application be heard
as an urgent
application.
[2]
That, pending the finalization of an appeal to be filed by the
applicant against the order made by Mabuse,J on 6 April 2016,
the
rule nisi
issued by Legodi,J on 11 March 2016 be revived with
interim and immediate effect.
[3]
That the first respondent be ordered to pay the costs of this
application, which costs will include the costs of 2(TWO) counsels
and in the event of any other respondent or respondents oppose this
application, such respondent or respondents be ordered to
pay
applicant's costs, which costs will include the costs of 2(TWO)
counsels, the one to pay, the others to be absolved.
[4]
Such further and/or alternative relief as may be necessary be granted
to the applicant.
ALTERNATIVELY
(5] That a
rule
nisi
be issued, calling upon the respondents to
show cause, if any, on 7 June 2016 at 10:00 or as soon thereafter as
the matter may be
heard, why:
5.1
The first respondent alternatively, the second, third and fourth
respondents shall not be ordered to immediately restore
applicant's free and unfettered occupation of the property known
as the remaining portion of portion [2 of the farm Cawoods
Hope
3..] ("the farm").
5.2
The first respondent alternatively, the second, third and fourth
respondents shall not be ordered to immediately remove
and
vacate the cattle brought onto the farm by either the first
respondent or the second, third and fourth respondents on 11
April
2016.
5.3
That, should the respondents refuse or neglect to remove and vacate
the cattle, the sheriff be authorized to effect such
removal.
5.4
Why the first respondent shall not be ordered to pay the costs of
this application, which costs will include the costs
for 2(TWO)
counsels and in the event of any other respondent or respondents
oppose this application, such respondent or respondents
be ordered to
pay applicant's costs, which costs will include the costs for
2(TWO) counsels, the one to pay, the others
to be absolved.
[6]
Prayers 5.1, 5.2 and 5. 3 above shall operate as interim order and
interdict with immediate effect."
[11]
The application served before Pretorius J on 26 April 2016 who struck
it from the roll, and reserved costs, due to lack of
urgency. The
matter was re-enrolled in the urgent court of 3 May 2016 when it
appeared before me. It is common cause that on 28
April 2016 the
applicant instituted an application for leave to appeal to the Full
Bench of the Division, alternatively to the
Supreme Court of Appeal,
against the whole of the judgment, including the judgment on costs
delivered by Mabuse J on 6 April 2016.
POINTS
IN LIM/NE
[12]
In their opposing papers, the respondents besides opposing the matter
on the merits, is raising four points
in limine,
thus
1.
Urgency
- The issue of urgency was disposed of when on 26
April 2016 Pretorius J struck the matter from the roll due to lack
of urgency.
2.
The relief sought in paragraph 2 of the notice of motion is without
basis in law;
3.
This court does not have jurisdiction to adjudicate upon
the
alternative relief sought by
the applican
t
- The parties are
ad
idem
that this court
cannot adjudicate on the issue of jurisdiction because the issue
was heard and determined by Mabuse J on
6 April 2016 and as such
this court cannot review that judgment. Therefore, this issue is
not before this court for consideration;
and
4. No
case is made out in the applicant's papers for the alternative
relief.
[13]
Before turning to the merits of this application I shall deal first
with the two remaining points
in limine,
namely
The
relief
sought
in paragraph
2
of
the notice
of motion
is
without basis
in law:
[14]
Prayer 2 in the applicant's notice of motion is for an order that,
pending the finalization of the appeal filed by the applicant
against
the order of Mabuse J on 6 April 2016, the
rule nisi
issued by
Legodi J on 11 March 2016 be revived with interim and immediate
effect.
[15]
The respondent's submission is that there is no legal basis in law
for the revival of the
rule
nisi
issued
by Legodi J in that, interim orders are not independent of final
orders. An interim order, it is argued, which is granted
in the
absence of
the other
concerned parties is by its nature provisional and conditional upon
subsequent
confirmation by the same court (albeit not the same judge) in the
same
proceedings
after
having
heard the
other
side's
side of the
case.
Therefore,
when
an appeal
is sought
to be brought against a discharge of an interim order there is
nothing
to
revive, for it is as if no order was made in the first place, so it
is said. In support of this submission the respondents rely
on the
judgment in
National
Director of
Public
Prosecutions v MC Rautenbach and Another.
[1]
[16]
Consequently, it is submitted on behalf of the respondents that the
order made by Mabuse J on 6 April 2016 discharged the
rule nisi
that was granted by Legodi J and as such there is nothing to
revive. Thus, the relief sought by the applicant to revive that
rule
nisi
is not sustainable and should be dismissed with
costs, so the argument goes.
[17]
The applicant in argument before me concedes that the noting of an
appeal
against
a
discharged
interim
order
does
not
automatically revive the
interim
order
but
what is
required is for a litigant to apply for such revival from the court.
As a basis
in law in
respect
of
this
submission the applicant relies
in
the
judgment
in
Ismael v
Keshavee
[2]
,
wherein the following was said:
"It
seems to me that if a litigant desires further protection by way of
interdict pending the determination of an appeal
he must make
application therefor . . . In my opinion the noting of an appeal does
not automatically revive an interdict granted
pendente lite.
Mr
Beyers asked for such relief in the event of my being against him on
his main argument and I proceed to consider such application
which
was strongly contested by the applicant."
[18]
The law in this regard is set out succinctly in Erasmus:
Superior
Court Practice
[3]
as follows:
'The
noting of an appeal against the refusal of a final order where
interim interdictory relief was granted (but the final relief
refused) does not revive the interim order unless the parties have
specifically agreed to the continued existence of the interdict
pending an appeal. A party who desires further protection by way of
interdict pending the determination of the appeal could
also
make application for the renewal of the interdict. Where an interim
order is not confirmed, irrespective of the wording used,
the
application is effectively dismissed. There is accordingly no order
that can be revived by the noting of the appeal and there
is nothing
that can be suspended. Interdicts, which endure until a specified
event, fall away on the happening of the event. Should
an appeal be
noted against the decision which formed the conditional event, the
interdict does not remain operative nor does it
revive. Where
application for leave to appeal was delivered against an order
setting aside an order which was granted in an
ex-parte
application for attachment to found or confirm jurisdiction, the
court held that the
ex-parte
attachment order was
ex lege
the uniform rules of limited duration pending the determination
of the application to have it set aside. Once set aside, a notice
of
appeal could not have a positive effect of creating an order, which
did not exist. It therefore does not revive or perpetuate
the order
discharged or set aside."
[19]
The following was further said in
Southernwind
Shipyard (Pty) Ltd v Jacobs and Others
[4]
at para
[23]
"[23]
What was strange for the Court in respect of the interim order that
was granted on 26 September 2008 was that it sought
to revive the
interim interdict, which on proper consideration of the authorities
cited above, such an order could not be revived.
The true position,
therefore, is that an Applicant, if it seeks further protection has
to bring a fresh application which sets
out the basis upon which the
court should grant a temporary interdict."
[20]
The authorities are clear, a discharged interim order, cannot be
revived as there is actually nothing to revive. A litigant
in such a
situation, that is, where an interim order is discharged, and who
desires further protection by way of an interdict pending
determination of an appeal, is urged to apply for a new interim order
pending the appeal.
[21]
The applicant's submission that where an interlocutory order has been
discharged it can be revived on application thereof by
a litigant, is
thus, not correct. One cannot revive something that is not there. It
is quite clear that once an interim interdict
is discharged same is
gone and cannot be revived, except by agreement or through making a
fresh application. The applicant misconstrued
the principle as laid
down in the Ismael-judgment above which he used in support of this
submission. The passage at 688A of that
judgment requires no
interpretation as it aptly sets out this principle as follows:
"It
seems to me that if a litigant desires further protection by way of
interdict pending the determination of an appeal
he must make
application therefor . . . In my opinion the noting of an appeal does
not automatically revive an interdict granted
pendente lite."
[22]
In terms of that passage the application that must be done is for a
fresh interdict that will continue to protect the litigant
pending
the appeal and not the application to revive the discharged interim
order.[23) The applicant contends that he is relying
on the
provisions of s18 (2) of the
Superior
Courts
Act
10 of 2013 ("the Act") for the revival of
the Legodi J's
rule
nisi.
The submission
by the respondent is that, the repealed uniform rule 49 (11) which
dealt with appealable orders excluded interim
orders from its scope
of application, hence, the decision taken by the court in the
judgment in the
Rautenbach-judgment
above. It is
submitted by the applicant that
"an
interlocutory
order
not
having the
effect
of
a
final
judgment",
presupposes the
suspension of an interlocutory order having the effect of a final
order. As such, it is argued, the interlocutory
order, in this
instance, did not have the effect of a final judgment as same was
dependent on the adjudication of the merits of
the application.
[24)
The respondent on the other hand was at pains to explain what is
meant by an interlocutory order in an effort to show the court
that
the order which the applicant seeks to revive was not an
interlocutory order that is referred to in the section and that the
section did not apply.
[25)
In my opinion, the arguments by both parties around s 18 (2) of the
Act are not on point as I shall more specifically indicate
hereunder.
[26)
Section 18 (2) of the Act, which is apposite for purposes of this
discussion provides that
"(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."
[27]
Section 18 (2) of the Act provides that, subject to subsection (3)
thereof,
the
operation and execution of a decision which is an interlocutory order
not having the effect of a final order, is not suspended
pending the
decision of an application
for leave
to appeal or appeal, unless the court under exceptional circumstances
orders
otherwise.
[5]
[28]
In the matter before me, it is not the interlocutory order that is
the subject of the application for leave to appeal. What
is sought to
be appealed as
per
the application for leave to appeal is the
final order of Mabuse J which discharged the interlocutory order
granted by Legodi J,
which is the order the applicant seeks to revive
in this application. Thus, the issue, in this instance, is whether
the discharged
rule nisi
of Legodi J can be revived.
[29]
Section 18 (2) of the Act, on the other hand, provides for the appeal
of an interlocutory order not having the effect of a
final judgment
and which is the subject of an application for leave to appeal or of
an appeal. It is my understanding that, s 18
(2) of the Act now makes
it possible for a litigant,under exceptional circumstances, to note
an appeal against an interlocutory
order not having the effect of a
final judgment, which was not the case under the repealed uniform
rule 49 (11). The applicant,
in this instance, seeks to revive a
discharged interim order. It is my view that his reliance on s 18 (2)
of the Act, is misplaced
because the sub-section does not talk to the
revival of interlocutory orders whether discharged or not.
[30]
The law as it stands, despite the introduction of s 18 (2) of the
Act, is that, when
an
interim
order
is
discharged,
the
noting
of
an
appeal
against
the
discharge
does
not revive
or
perpetuate
the
order
so
discharged.
[6]
In the
Rautenbach-jud
gment
above
at para [12], the court went further to state
'It
follows that when an appeal is sought to be brought against the
discharge of such an order there is nothing to revive for
it is as
if no order was made in the first place.'
[31]
I have to conclude, therefore, that the point
in limine
ought
to be upheld.
No
case is made out in the applicant's papers for the alternative
relief-
[32]
The alternative relief sought by the applicant in prayer 5 in the
notice of motion pertains to the mandatory interdictory relief
which
requires the respondents (in the alternative) to restore the
applicants free and unfettered occupation of the farm by removing
their cattle on the said farm.
[33]
The submission by the respondent is that no case has been made out
for this relief in the applicant's founding affidavit. I
seem to be
in agreement with the respondent's submission in this regard,
although for different reasons.
[34]
In terms of the alternative relief the applicant seeks as set out in
paragraph [1O] of this judgment, it appears that the relief
sought is
for the respondent to
'restore the
applicant's
free
and
unfettered
occupation
of
the
farm.'
But, the applicant's case in the founding affidavit is that he
had an unfettered use of the farm and that actions of the
respondents,
by moving their cattle onto the farm for grazing
purposes, will effectively deprive him of the use of the grazing
facilities on
the farm.
[35]
The relief the applicant seeks in the notice of motion is not
supported by the evidence in the founding affidavit. The evidence
is
in support of 'the right to use' the grazing facilities on the farm
whilst the relief sought is for 'the occupation' of the
farm.
[36]
From what is stated above, it is evident that in circumstances where
an interim order has been discharged, a litigant has two
options. The
first option is to seek an agreement to have the interdict issued
earlier to continue to exist. The second option
is to bring another
application for an interdict which ought to be considered on its own
merits, that is, independent of the earlier
issued interdict.
[37]
It is common cause that, in this instance, there is no agreement
between the parties for the continuance of the interim order
granted
by Legodi J. It follows that
the
applicant should bring an application for a fresh interdict which
must be considered by the court afresh.
[7]
[38]
It is my view that in the circumstances of the matter before me,
since there is a pending application for leave to appeal or
an appeal
noted by the applicant, the alternative relief sought in the notice
of motion ought to be for an interim interdict pending
the outcome of
the application for leave to appeal or the appeal.
[39]
It is trite that interim interdicts are generally and in their nature
granted
pendente
lite.
In
this sense,
they
are
designed
to
protect
the
rights of a
litigant
pending
the
finalization
of
pending
proceedings or proceedings to
be
instituted
by
such
litigant. When considering whether to grant or refuse an interim
interdict, the
court
seeks
to
protect
the
integrity
of
the
proceedings
in the
main
case. The
court
seeks to
ensure, as far as is reasonably possible, that the party who
ultimately is successful will receive adequate and effective
relief.
[8]
[40]
One of the aims of an interim interdict is said to be to preserve the
status
quo ante
pending
the final determination of the rights of the parties to pending
litigation. That is, there must be legal proceedings on
the same
facts pending between
the
parties.
[9]
[41]
From the perusal of the papers before me, it is, quite clear that the
alternative relief sought by the applicant is not made
pendente
lite.
It is my view that in the manner in which the alternative
relief is sought, should it be granted, it will render the appeal
noted
by the applicant academic.
[42]
Having said that, the applicant would still not succeed with his
claim for an interdict for he does not in his founding affidavit
establish the fundamentals of either an interim interdict or final
interdict. It should be remembered that the application before
me
should be considered on its own merits and all the requirements of
the interdict must be established failing which an interdict
may not
be granted.
[43]
It is on that basis that I have to conclude that from the outset the
applicant had not made out a proper case for the alternative
relief
he seeks. This point
in limine
should therefore be upheld as
well.
COSTS
[44]
The respondents are the successful parties and are entitled to their
costs including the reserved costs of 26 April 2016 when
the matter
was struck from the roll for lack of urgency.
ORDER
[35]
In the circumstances the application is dismissed with cost including
the costs reserved.
E.M.
KUBUSHI
JUDGE
OF THE HIGH
COURT
APPEARANCES:
HEARD
ON THE :
05
May
2016
DATE
OFJUDGMENT:
11
May
2016
APPLICANT'S
COUNSEL: ADV. W. COETZEE SC
:ADV..
GOUWS
APPLICANT'S
ATTORNEYS
:
GOODES &SEEDAT ATTORNEYS
INC.
1
5
r,
2"d, 3rd
&
4TH
RESPONDENTS'
COUNSEL :
ADV. P. LOURENS
1
5
r,
2"d, 3rd &
4TH
RESPONDENTS'
ATTORNEY
:
VAN DEVENTER&THOABALA INC.
[1]
[2005] 1 All SA 412
(SCA) para [12]
[2]
1957 (1) SA 684
(TPD) at 688A
[3]
See Erasmus: Superior Court Practice Vol 2 2ed A2-66 - A2-67 and the
judgments quoted thereat.
[4]
(C 700/2008)
[2008] ZALC 142
;
[2009] 4 BLLR 390
(LC); (2009) 30 ILJ
1369 (LC) (7 November 2008)
[5]
See Erasmus: Superior Court Practice Vol 2 2ed p06 26
[6]
See MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA
746
(SCA) at 751 - 752.
[7]
See Kelly Group Ltd v Solly Tshiki & Associates(SA) (Pty) Ltd
2010 (5) SA 224
(GSJ) at 231F - G
[8]
Pikoli v President of RSA
2010 (1) SA 400
at 404 A-D.
[9]
Pikoli v President of RSA
2010 (1) SA 400
at 403H.