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[2008] ZAWCHC 268
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Indawo Cape (Pty) Ltd v South African National Road Agency Ltd (16463/2008) [2008] ZAWCHC 268 (10 October 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS
CASE NO
:
16463/2008
DATE
:
10
OCTOBER 2008
In
the matter between:
INDAWO
CAPE (PTY) LIMITED
Applicant
and
SOUTH
AFRICAN NATIONAL ROADS AGENCY
LIMITED
Respondent
JUDGMENT
GAMBLE,
AJ
This
matter came before me this morning, at the end of a long week of
motion court duty and on a day on which as the fast track
judge I was
required to attend to several matters of urgency. The alleged urgency
in this matter concerns a signboard which was
erected alongside the
N2 Highway, between Caledon and Riviersonderend, proclaiming the
applicant's wares as it were and advertising
the applicant's
services.
It
appears as if the signboard was removed by the respondent, which is
the Roads Agency, sometime in June, was re-erected by the
applicant,
or somebody acting on the applicant's behalf thereafter, and was then
removed again on 8 September.
Mr
Louw
when he moved the application this morning on behalf of the applicant
contended that the spoliation of 8 September was the spoliation
upon
which the applicant relied. I am at great pains to understand what
the pressing urgency in this matter is that requires a
set down of
approximately 24 hours notice on the respondent for a road sign
proclaiming somebody's business acumen, when there
are women and
children who are being beaten up and removed to other jurisdictions,
whose cases are genuinely urgent.
When
Mr
Louw
was asked to deal with the provisions of Rule 6{12}(b) and the
apparent non-compliance there with in the founding affidavit his
somewhat bold retort was to suggest that no allegation in this regard
was necessary because, as he put it, all spoliation matters
are
urgent, entitle one to come before the Court on an urgent basis, and
that
ipso
facto
no
allegation of urgency is necessary in the papers.
For
this botd statement Mr
Louw
relied upon a judgment of Mr
Justice
Nepgen
in the Eastern Cape in a decision called
Office
Automaton and Specialist CC v Lotter
1997(3) SA443(e). I have had a look at the passage that he relies
upon and in my view that passage is distinguishable and applicable
to
a different statutory regime. In particular, that matter was an
appeal from the Magistrate's Court and the Rule in question
that was
considered was the relevant rule in the Magistrate's Court Rules.
Of
more application to this particular matter is the judgment of Mr
Justice
Munnik
with whom Mr
Justice
Addleson
concurred, (also in the Eastern Cape) in the matter of
Manga
fa v Manqala
1967(2) SA 415(E) where His Lordship dealt with exactly the problem
that confronts the applicant in the matter before me. In that
matter
the application was represented by Mr
Mullins
SC
and the relevant passage at 415(H) reads as follows;
"Mr
Mullins has urged upon us that because this is an application for a
spoliation order the matter should automatically
be treated as one
of urgency. We are unable to agree with this view. The rules make
provision for the procedures to be folEowed
in all applications.
There is one rule which provides a saving clause as it were and that
is rute 6(12) in terms whereof the
Court may
r
in
certain circumstances, dispense with notice in certain formalities
in urgent applications, but the rule states that the applicant
must
in his affidavit or petition
"set
forth explicitly the circumstances which he avers render the matter
urgent and the reasons why he claims he could not
be afforded
substantial address at a hearing in due course.''
These
Rules have been devised for the smoother working of litigation, and
at the same time for the protection of litigants on
both sides.
Normally, therefore compliance with the Rules means that the
respondent in an application such as this would have
a certain fixed
period within which she would be entitled to signify her intention
of defending the proceedings and of filing
her affidavits and doing
the things necessary for conducting a defence of the application.
This is a right which she is given
in terms of the Rules. Now as I
have said provision is made for the curtailment of this right
but only when the
provisions of Rule 6(12)(b) {quoted above)
have in fact complied with."
At
page 416 (D) His Lordship continues thus:
â
..(l)n
the circumstances I am of the opinion that he has not complied with
the provisions of Rule 6(12)(b) in the manner which
would entitle
him to cut across the whole procedure governing applications to
Court. It is true that a spoliation order is a
remedy which in the
nature of things should be a speedy one, but the fact that there has
to be restitution before all else simply
means that once an
applicant has proved that he was in peaceful possession and his
possession was disturbed the respondent must
restore that position
before entering into the merits of the ownership, or otherwise of
the subject matter. It does not follow
that because an application
is one for a spoliation order the matter automatically becomes one
of urgency. The applicant must
either comply with the rules in the
normal way or make out a case for urgency in accordance with the
provision of Rule 6(12)(b).
n
The
papers before me manifestly do not comply with these requirements
and in the circumstances the matter is not properly before
me.
Recently in the Supreme Court of Appeal in the matter of
Hawker
Air Services
(2006 (4) SA292 (SCA))
Justice
Cameron
held
that the correct way in which to treat such an application is to
strike it from the roll. I am of the view that that is the
appropriate order to make in these circumstances.
Mr
Whitehead
asked that the application be dismissed with costs. Surprisingly he
asked only for party and party costs (he does not request
a higher
level of punitive costs) and I shall accede to his request in that
regard.
Finally,
practitioners are to be reminded that the fast track in this
division is there for genuinely urgent matters and that
practitioners who continue to abuse the process and waste the
Court's time with matters which are on the face of it trivial and
less than urgent, may in future find themselves to be the recipients
of appropriate cost orders.
In
this matter then the
APPLICATION
IS STRUCK FROM THE ROLL
and the applicant is ordered to pay the respondent's costs of today.
GAMBLE,
A J