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[2015] ZAGPPHC 192
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GP Smith Letting CC v Jacobs and Van Aswegen Property Developers CC and Another (15863/2015) [2015] ZAGPPHC 192 (10 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE: 10 APRIL 2015
CASE NO: 15863/2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
GP SMITH LETTING
CC
...........................................................................................
APPLICANT
And
JACOBS AND VAN
ASWEGEN PROPERTY
DEVELOPERS
CC
.............................................................................................
1
ST
RESPONDENT
GERHARD
MARé
...............................................................................................
2
nd
RESPONDENT
JUDGMENT
MAKGOBA, J
[1] This is an
urgent application brought by the applicant for an interim interdict
to suspend arbitration proceedings scheduled
for 20 April 2015
pending the finalisation of a review application already instituted
by the applicant under case number 88292/2014
(“the review
application”) in this court.
[2] The applicant
herein is the defendant in the arbitration and the first respondent
herein is the claimant in the arbitration.
The second respondent is
the arbitrator. The application is opposed only by the first
respondent.
Basis for the
Application
[3] The applicant
alleges that during the conduct of the arbitration facts came to
light which necessitated the applicant making
a review application
during December 2014 for a order reviewing and setting aside certain
decisions of the Executive Council for
the Department of Co-operative
Governance, Human Settlements and Traditional Affairs of the Limpopo
Province (“the Department”).
[4] The applicant
believes that if it is successful in that review application, the
nature of the arbitration will change considerably
as will the extent
of the dispute between the parties. Furthermore, that a successful
review of the decisions will abate the first
respondent’s claim
in the arbitration.
[5] The applicant
believes that should the arbitration proceed prior to the completion
of the applicant’s review application,
the applicant will
suffer irreparable harm. On the other hand, according to the
applicant, a continuation of the arbitration proceedings,
absent a
judgment on the review application, may render the arbitration moot
and of academic value only.
Factual
Background
[6] The applicant is
the registered owner of a property known as Portion 1 (remaining
extent) of the Farm, Tweefontein 915 LS within
the Limpopo Province
(“the property”). During November 2006 the applicant and
one Henk Gerhardus Van Aswegen (“Van
Aswegen”) decided to
become partners in a joint venture for the purposes of developing the
property.
[7] In order to
achieve this object, it was necessary to successfully apply for a
township establishment on the property to subdivide
the property into
residential or other stands and to sell these stands to members of
the general public. From the income generated
from the anticipated
sale of stands, the parties would be compensated for their respective
contributions to the joint venture,
whereafter the profits would be
shared equally between the parties.
[8] Subsequent to
the arrangement being formalised in a written agreement, Van Aswegen
ceded his right, title and interest in and
to the joint venture to
the first respondent as his nominee.
The first respondent
conducts the business of a property developer.
[9] Before the joint
venture could come to fruition, a dispute arose between the parties.
This dispute led to the arbitration proceedings
pending before the
second respondent. The arbitration has commenced during October 2014
but has not been finalised. The first respondent
is still presenting
its case.
The Arbitration
[10] On 9 October
2014 the part heard arbitration proceedings between the applicant and
the first respondent were postponed by agreement
to 9 February 2015.
[11] In the
arbitration proceedings the first respondent claims that the
applicant repudiated the agreement in denying that it was
bound by it
and in refusing to comply with the terms thereof. The first
respondent alleges that as a result of the applicant’s
repudiation of the agreement it could not continue with the
development, profits could not be realized and the first respondent
suffered damages.
[12] In defence the
applicant denies that the first respondent incurred the expenses
claimed and the repudiation and in addition
to that the applicant
denies that the development was finalised and that any properties
were sold or that the joint venture generated
any income.
[13] The arbitration
hearing commenced before the second respondent on 6 October 2014
until 9 October 2014 when it was by agreement
postponed to recommence
on 9 February 2015.
[14] The applicant
alleges that during the first session of the arbitration proceedings
the first respondent made a number of additional
documents available
to the applicant which had not been discovered prior to the
commencement of the arbitration. These documents
gave rise to the
launching of the review application before this court on 11 December
2014 under case number 88292/2014, which
application is currently
pending.
[15] On 9 February
2015 the applicant made application to the second respondent for the
suspension of the arbitration proceedings
pending the fmalisation of
the review application. On 10 February 2015 the second respondent
(the Arbitrator) ruled that the arbitration
proceedings will not be
suspended but only postponed and should be set down within 45 days.
[16] On 24 February
2015 the first respondent approached the second respondent to have
the arbitration set down for hearing. On
27 February 2015 the first
respondent served a notice of set down upon the applicant, informing
that the arbitration will proceed
on 20 April 2015.
[17] On 3 March 2015
the applicant had this application to suspend the arbitration pending
fmalisation of the review application
issued and served on the first
respondent’s attorneys.
The Review
Application
[18] In the review
application the applicant seeks an order reviewing and setting aside
the decisions of the department to extend
the time period within
which general plans for the development had to be filed with the
Surveyor-General in terms of the Development
Facilitation Act.
According to the applicant, if it succeeds in the review, it will
redirect its defence in the arbitration by
avoiding the first
respondent’s damages claim in the arbitration and possibly also
its claim based on expenditure.
[19] The applicant
avers that should the review be successful, it will have the
opportunity to amend its plea in the arbitration
and raise, as a
defence to the respondent’s claim, the fact that the
development forming the subject of the dispute between
the applicant
and the first respondent, never came into being. Such a defence will
hold that the first respondent had no opportunity
of realising any
profit and that the joint venture failed. Furthermore, that the
applicant will be able to plead in the arbitration
that any expenses
incurred by the first respondent in the fruitless exercise of the
joint venture development cannot be claim from
it.
[20] In short, it is
the applicant’s case that if it is able to succeed with the
review, the first respondent should be left
without a claim against
it in the arbitration.
Issues raised in
Defence
[21] The first
respondent raised the following issues:
21.1 That the matter
is not urgent;
21.2 That the court
does not have jurisdiction to entertain this application;
21.3 That the review
will fail;
21.4 That the review
application has no bearing on the arbitration;
21.5 That the first
respondent will suffer greater prejudice if the relief is granted
than what the applicant will suffer if the
relief is refused; and
21.6 That the
applicant does not satisfy requirements for an interdict as prayed
for.
Urgency
[22] The main point
taken by counsel for the first respondent in relation to urgency is
that the applicant delayed impermissibly
in launching the present
application from 10 February 2015, when it received the arbitrator’s
ruling that the arbitration
proceedings will not be suspended but
only postponed and to be set down within 45 days, until 3 March 2015,
when it actually launched
this application.
[23] Uniform Rule
6(12)(b) requires the applicant to “set forth explicitly the
circumstances which [it] avers render the matter
urgent”.
[24] In its own
papers, in particular, the replying affidavit, the applicant states
that the urgency in this matter was brought
about by the refusal of
the second respondent (the arbitrator) on 10 February 2015 to suspend
the arbitration proceedings before
him and the first respondent’s
subsequent setting down of the arbitration for hearing on 20 April
2015.
[25] In my view the
applicant should have launched this application immediately after 10
February 2015 and not wait until after
27 February 2015 when a notice
of set down was served. The applicant knew all along as early as 10
February 2015 that the arbitration
it now seeks to suspend would be
proceeding on 20 April 2015.
It
is trite that an application for an interdict
pendente
lite
from
its very nature requires the maximum expedition on the part of the
applicant. See
Juta & Co Ltd v Legal and
Financial Publishing Co (Pty) ltd
1969
(4) SA 443
at 445A-F.
Caledon Street
Restaurant CC v D’Alviera
[1998]
JOL 1832
(SE) at pl832.
[26] Given the
applicant’s delay in launching this application, any “urgency”
is entirely self-created. I accordingly
make a finding that the
applicant has failed to make out a case for urgency.
[27] The application
is accordingly struck form the roll with costs.
E M MAKGOBA
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
Heard
on
:
24 March 2015
For
the Applicant
:
Adv A Liversage
Instructed
by
:
Van Huyssteens Attorneys
For
the First Respondent
:
Adv R F Van Rooyen SC & Adv P Rabie
Instructed
by
:
Van Aswegen Attorneys
c/o Eduard De Lange
Attorneys PRETORIA
Date
of Judgment
: