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[2016] ZAGPPHC 1183
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VDH Holdings (Pty) Ltd and Another v Minister of Police and Another, In re: Minister of Police and Another v VDH Holdings (Pty) Ltd and Another (46483/16) [2016] ZAGPPHC 1183 (30 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 46483/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
30/11/2016
In
the matter between:
VDH
HOLDINGS (PTY)
LTD
First
Applicant
ABSOLUTE
GROUP MANAGEMENT (PTY)
LTD
Second
Applicant
and
MINISTER
OF
POLICE
First
Respondent
NATIONAL
HEAD OF THE
DIRECTORATE
FOR PRIORITY
CRIME
INVESTIGATION
Second
Respondent
In
re:
MINISTER
OF
POLICE
First
Applicant
NATIONAL
HEAD OF THE DIRECTORATE FOR PRIORITY CRIME
INVESTIGATION
Second
Applicant
and
VDH
HOLDINGS (PTY)
LTD
First
Respondent
ABSOLUTE
GROUP MANAGEMENT (PTY)
LTD
Second
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
This matter has a chequered history. A number of orders have been
granted since the launching of the main application. Pending
the
determination of the main application, an interlocutory order was
granted by consent between the parties during June 2016 (the
June
order).
2.
The application presently before court relates to an application to
reinstate the operation and execution of an order granted
pending an
application to the Supreme Court of Appeal for leave to appeal and/or
any further appeal steps that may follow thereafter.
3.
I have already granted two orders in this matter. The first order was
granted on 27 October 2016 in the urgent court in favour
of the
applicants, the reasons for that order were contained in a written
judgment delivered on 4 November 2016. The second order
was granted
on 10 November 2016 wherein I refused an application by the
respondents for leave to appeal against the order granted
on 27
October 2016.
4.
Subsequently, the respondents filed an application to the Supreme
Court of Appeal for leave to appeal the order of 27 October
2016. In
terms of the provisions of section 18 of the Superior Court Act, 10
of 2013 (the Act) the operation and execution of the
order of 27
October 2016 is suspended pending the determination of the that
application for leave to appeal.
5.
Section 18(1) of the Act provides as follows:
"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."
6.
The test to be applied when considering an application such as the
present is provided in subsection (3) of the Act. The test
is:
"(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
a
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.
The courts have considered the aforesaid test. In this regard, the
judgement of Sutherland, J. in
lncubeta
Holdings (Pty) Ltd v Ellis
[1]
is instructive.
Sutherland, J. held as follows:
"15. The thesis
advanced on behalf of the Respondent is that the discretion hitherto
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
on an order, pending an appeal,
as
formulated in the
Sections
18(1) and (31)
.
16. It
seems
to
me
that
there is indeed
a
new
dimension introduced to the test by
the
provisions of
Section
18.
The
test is
twofold; the requirements are:
16.1 First, whether
or
not 'exceptional circumstances 'exist, and
16.2 Second, proof on
a
balance of probabilities by the
applicant of-
16.2.1 The presence of
irreparable harm to the applicant/victor, who wants to put into
operation and execute the order, and,
16.2.2 The absence of
irreparable harm to the respondent/loser, who
seeks
leave to appeal."
8.
When considering the issue relating to what constitutes "exceptional
circumstances", Sutherland, J. held:
"18.
Significantly, although it is accepted in that Judgment that what is
cognisable
as
'exceptional
circumstances' may
be
indefinable
and difficult to articulate, the conclusion that such circumstances
exist in
a
given
case,
is not
a
product
of
a
discretion, but
a
finding of fact.
21. The context
relevant to
Section 18 of SCRT
is the
set
of
considerations pertinent to
a
threshold
test to deviate from
a
default
position; ie the appeal stays the operation and execution of the
order. The realm is that of procedural laws whose policy
objectives
are to prevent avoidable harm to litigants. The primary rationale for
the default position is that finality must await
the last court's
decision, in
case
the
last court decides differently, the reasonable prospect of such an
outcome, being an essential ingredient of the decision to
grant leave
in the first place. Where the pending happening is the application
for leave itself, the potential outcome in that
proceeding, although
conceptually distinct from the position after leave is granted, ought
for policy reasons, to rest on the
same
footing.
22. Necessarily, in my
view, exceptionality must be fact-specific. The circumstances which
are
or may be
'exceptional' must be
derived from
the actual predicaments in which the given litigants find themselves.
I am not of the view that one can be sure that
any true novelty has
been invented by
Section 18
by the use of the phrase. Although that phrase may
not have been employed in the judgments, conceptually, the practice
as
exemplified by the
text of
Rule 49(11)
.
makes the notion of the putting into operation an order in the face
of appeal process
a
matter
which requires particular ad hoc sanction from
a
court. It is expressly recognised; therefore,
as a
deviation from
the norm, ie an outcome warranted
only
'exceptionality'.
25. Turning to the
circumstances of these litigants, what is relevant, in my view, is
the following:
25.1 If the order is
not put into operation, the relief will, regardless of the outcome of
the application for leave to appeal,
be forfeited by lncubeta because
the short duration of the restraint will expire before exhaustion of
the appeal
processes.
25.2 The only value in
the relief is to stop the breach and protect legitimate interests
during the precise period of the next 4.5
months. Unrebutted evidence
in the affidavits alleges
a
breach is taking place at this very time.
25.3 Damages are not
an appropriate alternative remedy precisely because the very relief
obtained is posited on the absence of such
a
remedy being available. This places
a
restraint interdict in
a
different position to other forms of relief,
such
as
money claims,
where the aspect of irreparable harm is a
factor
extraneous to the substantive relief procured.
26.
I
have
made
no
reference
to the 'merits' of the
case
which resulted in the interdict. In my view
they
are
not pertinent
to this kind of enquiry. The considerations that
are
valuable pre-suppose
a
bona fide application for leave to appeal or
an actual appeal. No second guessing about the judgment per
se
comes into reckoning.
27. Do these
circumstances give rise to 'exceptionality'
as
contemplated? In my view the predicament of
being left with no relief, regardless of the outcome of an appeal,
constitutes exceptional
circumstances which warrant
a
consideration of putting the order into
operation. The forfeiture of substantive relief because of procedural
delays, even if not
protracted in bad faith by
a
litigant, ought to
be
sufficient to cross the threshold of
'exceptional circumstances'
28. The plight of the
victor alone is probably all that
is
required
to pass muster. Nonetheless, I
am
not
unconscious of the undesirable outcome that
relief
granted by the court becomes
a
vacuous gesture. A court order ought not to be
lightly allowed to evaporate,
a
fate,
which
seems
to
me,
would tend undermine the role of courts in the
ordering of social relations."
9.
I agree with the views expressed by Sutherland, J. in the quote
above.
10.
In my judgment of 4 November 2016 I comprehensively dealt with the
reasons for the order granted on 27 October 2016 and do not
intend
reiterating the reasoning contained therein. Likewise, I
comprehensively dealt with the reasons for refusing leave to appeal
set out in my judgment of 10 November 2016. For present purposes I am
not obliged to deal with the merits of those judgments, save
to the
extent that those merits may have a bearing on the issues relevant in
the present application.
11.
Applying the aforementioned principles to the present instance the
following is apparent:
(a) The applicants
obtained an order by consent during June 2016;
(b) Part of that order,
specifically dealing with the respondents' obligations, was endorsed
in the order of 27 October 2016;
(c) Should the operation
and execution of the said orders be suspended, the entire rational
and purpose of the orders shall be negated,
the duration of the
operation of the said orders will expire before the exhaustion of the
appeal processes;
(d) The only value of the
relief of the order of 27 October 2016 is to compel the respondents
to stop the illegal activity addressed
in the June order and to
protect legitimate interest during the period until the main
application is heard;
(e) The unrebutted
evidence contained in the application in respect of the 27 October
2016 order is that the respondents have breached
the June order and
that the applicants continue to suffer irreparable harm;
(f) It will be gleaned
from the judgments of 4 November 2016 and 10 November 2016 that the
respondents have not explained their
non-compliance with the June
order since late August 2016, whilst admitting that the situation of
illegal mining is of utmost concern
and requires urgent attention;
12. In my opinion the
aforementioned facts constitute exceptional circumstances as intended
in section 18 of the Act.
13.
The second leg of the inquiry relates to the issue of irreparable
harm. In this regard the following is of importance.
(a) The respondents
concede and admit that the illegal mining is of great concern;
(b) The respondents
further concede and admit that steps are to be taken to prevent such
illegal activity or at least to curb such
activity;
(c) The respondents bear
a constitutional obligation to protect the applicants, their rights,
the resources of the State, the assets
of the State and that of the
public. This is also entrenched in the Act governing the police;
(d) There is no
explanation why there was initial compliance with the June order
obtained by consent and thereafter noncompliance.
14.
In my opinion, where the respondents have a constitutional obligation
to protect the public, the assets and resources of the
public and of
the State, adhering to court orders and the law, they can suffer no
prejudice should the order of 27 October 2016
be put in to operation
and execution.
15.
On the other hand, the applicants stand to suffer severe prejudice
and irreparable harm should the order of 27 October 2016
not be out
into operation and execution. It follows that should the order not be
put into operation and execution, the entire rational
and purpose of
the order shall be negated, the duration of the operation of the said
orders will expire before the exhaustion of
the appeal processes. The
issue of damages has no application and is of no consequence or
effect in the present instance.
16.
Lead counsel for the respondents submitted that the issue of
locus
standi
is alive and well and hence the
applicants are not entitled to have the orders put into operation and
execution pending the application
to the Supreme Court of Appeal and,
if granted, such appeal.
17.
Section 18(3) of the Act contemplates that the party applying for an
order in terms of section 18(1) of the Act is the party
in whose
favour the order was granted. Such party would have the required
locus standi.
Any
issue relating to an issue in respect of
locus
standi
in the main proceedings is in my view,
in the present instance, of no consequence. Such issue does not
extend to an application
in terms of section 18(1) of the Act.
Furthermore, the June order was granted in the applicants favour by
consent. That order stands
until set aside. That order has not been
set aside or rescinded.
18.
Further in this regard, the point was taken on behalf of the
respondents that the deponent to the affidavit has no authority
to
depose to the affidavit and to bring the application. That challenge
was taken up and a resolution authorising the deponent
was attached
to the replying affidavit. The further submission that the case is to
be made in the founding affidavit and that proof
of authority is to
be shown in the founding affidavit has no merit. It is trite when
challenged a deponent is entitled to show
the necessary authority in
reply.
19.
It is further contended on behalf of the respondents that the present
application is premised upon the principles of the repealed
Rule
49(11), and hence the application stands to be dismissed. Whatever
the application is termed, the essence of the application
and the
requirements to be complied with relate to the provisions of section
of the Act. Those requirements are dealt with in the
founding
affidavit of the present application and in the heads of argument
submitted on behalf of the applicants. No prejudice
to the
respondents can be found merely because the naming of the application
relates to a repealed Rule of Court. The respondents
were prepared to
argue the relevant principles. Nothing turns on the incorrect naming
of the application; the substance thereof
is in accordance with the
provisions of section 18 of the Act.
20.
In response to the requirement relating to exceptional circumstances,
the respondents submit that the issue of irreparable harm
is to be
considered as part of those facts. It is clear from the
Incubeta
judgement,
supra,
that
the facts in respect of a consideration of exceptional circumstances
and that relating to irreparable harm are distinct. I
have dealt with
the issue of irreparable harm above.
21.
The respondents further submit that the 27 October 2016 order is
final in effect and hence appealable. It is not necessary to
determine that issue for present purposes, the applicants having
launched a substantive application in terms of section 18 of the
Act.
22.
Ms Cassim SC, on behalf of the respondents sought a punitive cost
order in respect of the attendances on 3 November 2016. I
have dealt
with the attendances of 3 November 2016 in my judgment in the
application for leave to appeal. It will suffice to re-state
that no
cost order was applied for or debated on that date. The further
submission that the court was obliged to grant a punitive
cost order
is contrary to the trite principle that the granting of costs is
discretionary. It is also clear from the judgment of
10 November 2016
that the attendance on 3 November 2016 was to obtain a directive when
the application for leave to appeal could
be considered
expeditiously.
23.
There is no reason to deviate from the trite principle that costs
follow the event.
24.
It follows that the application is to succeed.
I
grant the following order:
(a) The operation and
execution of the order under case number 46483/2016, which was
granted on 27 October 2016, a copy which is
attached hereto marked
"A", is not suspended and is of full force and effect
pending the finalisation of the respondents'
application to the
Supreme Court of Appeal for leave to appeal and/or any further appeal
steps that may follow thereafter;
(b) The respondents are
directed to pay the costs of this application, such cost to include
the costs incumbent on the employ of
two counsel.
On
behalf of Applicants: K W Luderitz SC
C
Woodrow
Instructed
by: Steyn Kinnear Inc
On
behalf of Respondents: N Cassim SC
B
Mathlape
Instructed
by: State Attorney
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
On
27 October 2016, before His Lordship Mr Justice Van Der Westhuizen
(AJ)
CASE
NO.: 46483/16
In
the matter between
MINISTER
OF
POLICE
First
Applicant
NATIONAL
HEAD OF THE DIRECTORATE FOR
PRIORITY
CRIME
INVESTIGATION
Second
Applicant
and
VDH
HOLDINGS (PTY)
LTD
First
Respondent
ABSOLUTE
GROUP MANAGEMENT (PTY)
LTD
Second
Respondent
In
re:
VDH
HOLDINGS (PTY)
LTD
First
Applicant
ABSOLUTE
GROUP MANAGEMENT (PTY)
LTD
Second
Applicant
and
MINISTER
OF MINERAL RESOURCES
AND
11
OTHERS
First
Respondent
DRAFT
ORDER
Having
perused the documents filed, and having heard counsel for the
parties, it is ordered:
1.
THAT
the rules pertaining to the service, times and filing of applications
are dispensed with, and that the application and counter
application
are determined on an urgent basis in terms of the provisions of Rule
6(12)(a) and (b) of the Rules of Court;
2.
THAT
it is declared that the first (Mr Nkosinathi Nhlero) and second
applicants (Mr Mthanda zo Berning Ntlemeza) are in contempt
of the
order granted by his Lordship Mr Justice Prinsloo on 28 June 2016, a
copy of which is attached to the respondents’
affidavit and
marked “VDH1” (“the June order”);
3.
THAT
the first and second applicants are to be committed to imprisonment
for a period of 30 days, but that the aforesaid order is
suspended on
condition that the aforesaid applicants comply with the June order
and with this order pending the outcome of the
main application under
the abovementioned case number;
4.
THAT
the applicants are ordered and directed forthwith to take all such
steps necessary and at all times to:
4.1
Initiate
and pursue crime prevention measures in respect of any and all
illegal mining on the Farm Wintersveld 417 KS, the Farm
Jagdlust 418
KS, and the Farm Zeekoegat 421 KS (“the subject farms”)
situated in the Limpopo Province of South Africa;
4.2
Effect
the arrest of any and all persons conducting illegal mining on the
subject farms;
4.3
Seize
and detain any and all equipment and/or vehicles used to commit such
illegal mining on the subject farms or to transport illegally
mined
chrome ore from the subject farms;
6. THAT the applicants
are directed to pay the costs of the counter application on an
attorney and own client scale, including the
costs incumbent upon the
employment of two counsel.
7. This order must be
served on the first and second applicants personally
------------------------------
BY ORDER
REGISTRAR OF THE HIGH
COURT
[1]
2014(3)
SA 189 (GJ)