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[2016] ZAGPPHC 564
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Telfree Communications Proprietary Limited v Mobile Telephone Networks Proprietary Limited (33647 / Z012) [2016] ZAGPPHC 564 (12 May 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 33647 / Z012
In
the matter between:
TELFREE
COMMUNICATIONS PROPRIETARY
LIMITED
...................................
APPLICANT
And
MOBILE
TELEPHONE NETWORKS PROPRIETARY
LIMITED
.......................
RESPONDENT
JUDGMENT
MAVUNDLA J;
[1]
On the 6 November 2015 this Court dismissed with costs
the applicant's urgent application without advancing the reasons for
such
order. The reasons are herein below set out.
[2]
The applicant approached this Court on urgent basis
seeking an order directing the respondent to restore full short
message services
(SMS) sending and receiving capabilities
("services") to it as a matter of urgency. In addition to
the restoration, the
applicant sought an order confirming that the
respondent is interdicted from restricting the applicant's access to
the respondent's
network "until the time as this application is
resolved in full".
[3]
In its papers the applicant contended that the purposes
of the application was to interdict the respondent to restore the
normal
short message service (SMS) network access and functioning
granted to the applicant by virtue of an Interconnection Agreement
for
voice and message (SMS) entered into as long ago as during 2006,
together with subsequent fee arrangement relating to SM traffic
of 2
October 2008.
[4]
It was not the first time that the parties locked horns
over the issue of the connectivity on the respondent's network. The
parties
had locked horns on no less than four occasions, namely on
the 14 June 2012, 6 September 2012, 8 March 2013 and 1 November 2013.
All four orders were in the nature of an interim interdict against
the respondent ordering it not to suspend the applicant's SMS
traffic
transmitted over the respondent's network. There is also a main
application pending in the South Gauteng High Court.
[5]
The
dispute between the parties is raging on without any quarter asked or
given by any of the parties. At the centre of the dispute,
is whether
the applicant is entitled to be connected over the respondent's
network. The respondent contends that the applicant
is not entitled
to connectivity without payment. There is a dispute between the
parties as to which agreement prevails, or whether
there was any
cancellation of any of the agreements. There is a further dispute
between the parties as to the terms and the tariff
upon which the
applicant should be billed, and also a dispute over some of the
invoices issued to the applicant by the respondent.
Because of the
disputes between the parties, this Court was not satisfied that the
applicant has established a right to be provided
with connectivity in
particular without payment.
[6]
It
would seem that the services over which the parties have locked
horns, translate for either party in substantial financial interest,
running into millions. Either way there is potential substantial
financial loss to the applicant as a result of non-connectivity,
equally too for the applicant as a result of "free services"
to the applicant. In my view, the scale of convenience in
respect of
both parties, being at equilibrium, this Court was not inclined to
tilt the scale in favour of the applicant. In my
better judgment, the
best cause to follow is to decline to grant the applicant the relief
it sought. In this regard, I take guidance
from what Chetty J held in
the matter of
Bandle
Investments (Pty) Ltd v Registrar of Deeds and Others
[1]
that an applicant seeking a temporary interdict, must satisfy the
Court:
"(i)
that the right which is the subject-matter of the main action and
which he seeks to protect by means of interim relief
is clear or, if
not clear, is prima facie established though open to some doubt;
(ii)
that, if the right is only prima facie established, there
is a well-grounded apprehension of irreparable harm to the applicant
if
the interim relief is not granted and he ultimately succeeds in
establishing his right;
(iii)
that the balance of convenience favours the granting of
interim relief; and
(iv)
that the applicant has no other satisfactory remedy.
See
L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town
Municipality v L F Boshoff Investments (Pty) Ltdl969 (2)
SA 256 (C)
at 267...............................................................
In
considering the balance of convenience it behoves me to take
cognisance of the fact that the refusal of the relief sought will
cause the loss of the right, whilst granting the relief will cause
the respondents no loss whatsoever. In fact if the right lapses,
it
reverts to the third respondent who thereby acquires an extremely
valuable right. What should be avoided is the possibility
of doing an
injustice. It is apposite in this context to refer to the remarks of
Hoffman J in the English case of Films Rover International
Ltd and
Others v Cannon Film Sales Ltd
[1986] 3 All ER 772
(Ch) at 780 -1,
where he stated:
'The
principal dilemma about the grant of interlocutory injunctions,
whether prohibitory or mandatory, is that there is by definition
a
risk that the court may make the "wrong" decision, in the
sense of granting an injunction to a party who fails to establish
his
right at the trial (or would fail if there was a trial) or
alternatively, in failing to grant an injunction to a party who
succeeds (or would succeed) at trial. A fundamental principle is
therefore that the court should take whichever course appears
to
carry the lower risk of injustice if it should turn out to have been
"wrong" in the sense I have described. The guidelines
for
the grant of both kinds of interlocutory injunctions are derived from
this principle.'
[7]
In
so far as the applicant's application, it is seemingly one of
mandament
van spolie,
this
Court was not satisfied that indeed resorts under spoliation. It is
trite that in spoliation proceedings, the applicant must
prove that
he was in undisturbed possession and has been unlawfully or
wrongfully deprived. The despoiled is entitled to restoration,
without the court having to interrogate any dispute regarding the
items forming subject of spoliation;
Zulu
v Minister of Works, KwaZulu, and Others
[2]
.
[8]
In
the matter of
Nienaber
v Stuckey
[3]
the Appellate Court held that:
"Where
the applicant asks for a spoliation order he must make out not only a
prima facie case but must satisfy the Court on
the admitted or
undisputed facts, by the same balance of probabilities as is required
in every civil suit, of the facts necessary
for his success in the
application."
[9]
In
the matter of
ATM
Solutions (Pty) Ltd v Olkru Handelaars
CC
[4]
the Supreme Court of Appeal held that:
"[9]
The cases where quasi-possession has been protected by a spoliation
order have almost invariably dealt with rights to
use property (for
example, servitudes or the purported exercise of
servitudes—'gebruiksregte') or an incident of possession
or
control of the property. The law in this regard was recently
succinctly stated in FirstRand Ltd v Scholtz N(f where Malan AJA
pointed out that spoliation order—
'does
not have a "catch-all function" to protect the
quasi-possession of all kinds of rights irrespective of their nature.
In cases... where a purported servitude is concerned the mandament is
obviously the appropriate remedy, but not where contractual
rights
are in dispute or specific performance of contractual obligations is
claimed: its purpose is the protection of quasi- possession
of
certain rights. It follows that the nature of the professed right,
even if it need not be proved, must be determined or the
right
characterized to establish whether its quasi possessio is deserving
of protection by the mandament.
[5]
'
[10]
In
the matter of
Telkom
SA (Pty) Ltd v Xsinet (Pty) Ltd
[6]
the Supreme Court held that:
"[13]...in
these circumstances it is in my opinion both artificial and illogical
to conclude on the facts before the Court
that Xsinet's use of the
telephones, lines, modems or electrical impulses gave it 'possession'
of connection of its corporeal property
to Telkom's system. [14] In
the alternative counsel argued that the quasipOssession of the right
to receive Telkom's telecommunication
services consisting of the
actual use (daadwerklike gebruik') of those services must be restored
by possessory remedy. This is,
however, a mere personal right and the
order sought is essentially to compel specific performance of
contractual rights in order
to resolve a contractual dispute. This
has never been allowed under mandament van spolie and there is no
authority for such an
extension of the remedy..."
[11]
It
is apposite to cite the matter of
Microsure
(Pty) Ltd and Others v Netl Applied Technologies SA Ltd
2008
ZAKHC 111 where the Court held that:
"The
mere disconnection of communication along physical telephone lines in
an exchange would however not in my view amount
to spoliation. That
is a matter for the law of contract. If the lines were not physical
telephone lines, buy cell phone connections
through sim cards and the
like, then I respectfully differ from the conclusion of the learned
Judge, as the mere disconnection
or rendering inoperative of the sim
cards by performance of some act in the cell phone provider's
computer centre, would not in
my view constitute spoliation."
[12]
The
applicant did not satisfy this Court that it was in possession of the
respondent's network from which the applicant seeks connectivity,
nor
of the facility itself which triggers connectivity. The applicant did
not satisfy this Court that the relationship between
the parties does
not arise from a contract. From the authorities cited herein above
spoliation does not apply in this case and
the matter simply had to
be dismissed for the said reason as well.
[13]
The
respondent engaged the services of three counsel. The matter was
brought on urgent basis, issued on the 3 November 2015, inviting
the
respondent to inform the applicant's attorneys on or before 16h00 on
Tuesday 3 November 20015 of its intention to oppose and
file
answering affidavit on or before 12h00 on Wednesday 4 November 2015.
The respondent was invited to Court to lock horns at
1400 on Thursday
5 November 2015. The applicant's papers ran into one hundred and four
(104), pages which were quite voluminous.
[14]
The
respondent was hardly given any time to make any informed decision.
It had tc hit the ground running. The respondent managed
to prepare
an answering affidavit inclusive of annexure running into about four
hundred and fifty eight (458) pages ir less than
two days. The papers
were filed at court on the 5 November 2015. The applicant had
truncated the time limits to a bear minimal.
The importance of the
matter to both parties is demonstrated by the fierce litigation and
the number of times the parties had been
to court. The respondent in
the circumstances was justified and entitled to engage the services
of three counsel to meet the dead
lines.
[15]
The
Courts have repeatedly warned that a party, who approaches the Court
on urgent basis, must truncate the time frames wisely,
afford its
opponent sufficient time to prepare its opposing papers, and also
allocate enough time for its replying affidavit.
In
casu
the applicant hardly provided itself with time to file its replying
affidavit. It could hardly cry foul that it was not afforded
time to
file its replying affidavit because that was the desert it created
for itself;
vide
Gallagher v Norman's Transport Lines (Pty) Ltd
[7]
[16]
In
the result for the aforesaid reasons the following order was granted:
That
the application is dismissed with costs inclusive costs of the
employment of three counsel.
NM
MAVUNDLA
Date
of Hearing 06 / 11 / 2015;
Date
of Judgment 12 / 05 / 2016
APPLICANTS'ADVOCATE
ADV JC KLOPPERS
INSTRUCTED
BY MASH IAN E MOODLEY & MONAMA INC.
RESPONDENT'S
ADVOCATE : ADV. LEE MORISON SC with ADV. TEBOHO MANCHU
INSTRUCTED
BY MARITZ SMITH VAN EEDEN INC.
[1]
2001 (2) SA 203
(SECLD) at 214 l-p215B, H215H-216A-B.
[2]
1992 (1) SA 181
(D) at 187.
[3]
1946 AD 1049
at 1053-4.
*
2009 (4) SA 337
(SCA) at 340 I-341C.187I.
[5]
See
also
Telkom
SA Ltd v Xsinet (Pty) Ltd
2003
(5) SA 309
(SCA) at para 14;
cflmpala
Water Users Association
v
Lourens NO and Others
2008 (2) SA 495
(SCA),
reported first in
[2004] 2 ALL SA 476
, where the court
considered
that rights to water in issue were not purely contractual in origin
and that they were protected by
mandament.
[6]
2003 (5) SA 309 (SCA).
[7]
1992 (3) SA 500
at 502E-503 D.