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[2013] ZAFSHC 65
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Provincial Commissioner: South African Police Service v Tshabalala and Another (5090/2012) [2013] ZAFSHC 65 (9 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5090/2012
In
the matter between:
THE
PROVINCIAL COMMISSIONER:
SOUTH
AFRICAN POLICE SERVICE
......................................
Applicant
versus
POWER S TSHABALALA
...............................................
1
st
Respondent
MAHUNGRA CAR WASH
..............................................
2
nd
Respondent
_____________________________________________________
HEARD ON:
25 APRIL 2013
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
9 MAY 2013
_____________________________________________________
INTRODUCTION AND
BACKGROUND:
[1] On 15 December 2012
the applicant caused a rule
nisi
to issue on an urgent basis
calling upon the respondents to show cause, if any, why,
inter
alia
, the following orders should not be made final:
“
2.1. The
respondents are prohibited from hosting or allowing any event or
activity as defined in the Safety at Sports and Recreational
Events
Act No 2 of 2012 at the venue of Mahungra Car Wash, without being in
possession of the required certificate in terms of
the said Act.
2.2. The respondents are ordered to
pay the costs of the application.
3. Paragraph 2.1 will serve as an
interim relief with immediate effect pending final determination of
the application.
”
[2] This is the extended
return day and the respondents have since filed answering papers
effectively opposing the application on
mainly the ground that it was
not necessary for the applicant to approach the court for the said
order, because the first respondent
advised the officials of the
applicant on 14 December 2012 that the proposed event had been
cancelled.
[3] The applicant, on his
part, delivered replying papers which effectively dispute that the
respondents advised him, through his
officials, that the event was
cancelled and, further, maintains that he, in any event, was entitled
to seek the intervention of
the court in the circumstances of the
matter.
[4] The applicant is the
Provincial Commissioner of the South African Police Service in the
Free State and acts in his capacity
as such.
[5] The first respondent
is the sole member of a close corporation which owns the second
respondent.
[6] On 7 December 2012
the first respondent submitted an application for risk categorisation
in terms of the Safety at Sports and
Recreational Events Act (SASREA)
in respect of a recreational event scheduled to take place from 13 to
and including 22 December
2012 at the business premises of the second
respondent so as to coincide with the national elective conference of
the African National
Congress (ANC).
[7] On 13 December 2012
the applicant was advised by the Events Safety and Security Planning
Committee (the ESSPC) that its meeting
of the same date agreed to
categorise the event as medium risk.
[8] The applicant’s
co-ordinator was, however, not satisfied with the assessment and
arranged another meeting for 14 December
2012, which resolved to
recommend that the event be graded a high risk.
[9] Thereafter and on the
same day the applicant submitted an urgent recommendation to the
National Commissioner of the South African
Police Service for an
approval of an urgent application to this court to stop the proposed
event.
[10] The respondents were
notified of the categorisation of the event as high risk on 15
December 2012 at 11h45 when the relevant
notice was served on the
first respondent. The court order was, on its part, granted a few
hours thereafter around 15h00.
ISSUE IN DISDUTE
[11] The parties are,
effectively, in dispute over whether or not it was necessary for the
applicant to secure the order in question
regard being had to the
respondents’ assertion that the event had already been
cancelled by that time and the applicant’s
officials had been
informed accordingly.
THE APPLICANT’S
CONTENTIONS
[12] Mr Rautenbach
contends, on behalf of the applicant, that it is not probable that
the first respondent advised the applicant’s
officials that the
event was cancelled and, if he had done so, the meeting of 14
December 2012 would, most probably, not have proceeded.
[13] It is, further,
submitted for the applicant that, even if the first respondent had
made such a disclosure, the applicant was
still, in the circumstances
of the instant matter, entitled to approach the court regard being
had to the nature of the risk involved
and the fact that the
respondents never, in the past, applied for risk categorisation.
THE RESPONDENTS’
CONTENTIONS
[14] Mr Pienaar submits
at length, for the respondents, that the applicant effectively relies
on alleged reasonable apprehension
of harm in support of the
application insofar as there is no evidence of any act of
interference with his right to safeguard the
safety of persons and
property.
[15] It is, further,
submitted for the respondents that, when the recommendation was made
for approval of the present proceedings
on 14 December 2012, there
existed no such reasonable apprehension of harm on the part of the
applicant because the respondents
had not yet even been notified of
the refusal of categorisation as at that stage.
[16] The interim
interdict granted was not even supported by the material properly
before the court according to Mr Pienaar.
[17] There exists a
dispute of fact, which cannot be resolved on the papers, as to
whether or not the first respondent advised the
applicant’s
officials on 14 December 2012 that the event had been cancelled. The
issue should, therefore, be decided in favour
of the respondents in
line with the respondent friendly test applicable in matters of the
present nature.
APPLICABLE LEGAL
PRINCIPLES
[18] The parties are
correctly in agreement that the requirements for a right to claim a
final interdict are as follows:
18.1. a clear right;
18.2. an act of
interference with that right or a reasonable apprehension of harm to
that right;
18.3. absence of any
other satisfactory remedy to the applicant. (See
Setlogelo v
Setlogelo
1914 AD 221.)
[19] The test of
apprehension of harm or interference is objective in the sense that
the court determining the matter must decide
whether or not there is
any basis, on the facts before him, for the entertainment, by the
applicant, of a reasonable apprehension.
(See
Seligman Brothers
v Gordon
1931 OPD 164
and
Nestor and Others v Minister
of Police and Others
1984 (4) SA 230
(SWA) at 244.)
[20] The answer as to
whether or not the fact that the respondent has given an undertaking
not to interfere with the applicant’s
rights renders it
unnecessary for the applicant to apply for an interdict depends on
the facts of the case, with the ultimate question
being whether or
not there exists a reasonable apprehension of harm, on the part of
the applicant, despite such an undertaking.
(See
Mcilongo N.O.
v Minister of Law and Order and Others
1990 (4) SA 181
(ECD).)
ANALYSIS OF FACTS
AND APPLICATION OF LEGAL PRINCIPLES
[21] It is common cause
between the parties that, although the event in question was
scheduled to take place from 13 December 2012
– 22 December
2012, it, in fact, did not take place at any stage before the order
was secured.
[22] The parties are,
further, in agreement that the respondents committed no act of
interference with the applicant’s right
to safeguard the
physical wellbeing and safety of persons and property at any stage
prior to the issue of the order in question.
[23] It is, furthermore,
not in dispute that after the notice declining to grade the event in
question was served on the first respondent,
nothing suggesting that
the respondents were intenton hosting the event without such
categorisation was exhibited by the respondents.
[24] The applicant,
effectively, contends in replying papers that the nature and extent
of the alleged undertaking were such that
it would not have been
necessary for the applicant to approach the court for the order if
such an undertaking was made.The determination
of the existence of
such an undertaking is, as such, essential in respect of the event of
December 2012 on the applicant’s
version.
[25] The question in the
instant matter is, however, whether or not there exists a reasonable
apprehension, on the part of the applicant,
that the respondents will
host or allow any recreational event or activity notwithstanding the
absence of the relevant certificates
in terms of SASREA when regard
is had to the general nature of the order, which is not limited to
the event scheduled for December
2012. The fact that an undertaking
was made by the respondent is, in my view, one of the factors which
may negate the existence
of such an apprehension on the part of the
applicant. As the court pointed out in
Mcilongo N.O. v Minister
of Law and Order and Others
,
supra
, at 186D – E
such a fact is, however, not decisive of this issue.
[26] The applicant,
therefore, generally bears no particular duty to disprove the
existence of such an undertaking in order to entertain
a reasonable
apprehension of harm. He only has to prove, on a balance of
probabilities, the reasonable apprehension in question.
His failure
to move for referral of the issue to oral evidence is, thus, not
per
se
fatal to his case.
[27] There exists
nothing, on the facts of the present matter, to form the basis for
entertaining a reasonable apprehension that
the respondents will
interfere with the applicant’s right by hosting events without
complying with the prescripts of SASREA.
On the contrary, the
evidentiary material before me shows that the first respondent
cancelled an order for alcoholic beverages
intended for the event of
December 2012 on the evening of 13 December 2012.
[28] In their opposing
papers the respondents, further, contend
in limine
that the
applicant is guilty of non-joinder insofar as the holder of a valid
liquor licence,who applied for a special licence to
sell all kinds of
liquor at the event in question, was not joined as a respondent. The
point in question was, however, correctly
not persisted in before me
in heads of argument filed for the respondents and in oral
submissions. The point was, with respect,
simply badly taken insofar
as the said licence holder has no direct and substantial interest in
the relief which the applicant
seeks although he may have a
commercial or economic interest in the matter. (See
Standard
Bank of South Africa Ltd v Swartland Municipality
2011 (5) SA
257
(SCA).)
COSTS
[29] The respondents are
entitled to their costs in line with applicable practice regarding
costs.
ORDER
[30] The application is,
therefore, dismissed.
[31] The rule
nisi
is discharged.
[32] The applicant shall
pay the respondents’ costs.
______________
L.J. LEKALE, J
On behalf of applicant:
Adv J.S. Rautenbach
Instructed by:
State Attorney
BLOEMFONTEIN
On behalf of respondents:
Adv C.D. Pienaar
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/spieterse