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2024
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[2024] ZANCHC 41
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Griekwaland Wes Korporatief Beperk t/a Vaalrivier Diensstasie v Desert Oil (Pty) Ltd (1753/2022) [2024] ZANCHC 41 (26 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1753/2022
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
GRIEKWALAND
WES KORPORATIEF BEPERK
t/a
VAALRIVIER
DIENSSTASIE
Applicant
and
DESERT
OIL (PTY)
LTD
Respondent
In
re:
DESERT
OIL (PTY)
LTD
Applicant
and
GRIEKWALAND
WES KORPORATIEF BEPERK
t/a
VAALRIVIER DIENSSTASIE
Respondent
Coram: Lever J
JUDGMENT
Lever
J
1. This
is an application for leave to appeal an interim interdict granted by
me on the 17 November 2023. The
said interdict is interim or
pendente
lite
in the sense that the present applicant (GWK) is interdicted
inter alia
from purchasing petroleum products from anyone
other than the present respondent (Desert Oil), pending the
finalisation of an action
to be instituted within 60 days from the 17
November 2023. GWK seeks leave to appeal to the Supreme Court of
Appeal (SCA).
2. The
relevant agreement between GWK and Desert Oil related to the purchase
and re-sale of certain petroleum
products at GWK’s VAALRIVIER
DIENSSTASIE. GWK purported to cancel the said agreement. The validity
of this purported cancellation
was the main subject of the
application for the interim interdict. My understanding is that the
said purported cancellation would
also be the main subject of the
contemplated action for
inter alia
declaratory relief relating
to the validity of the purported cancellation of such agreement.
3. I am
informed from the Heads of Argument filed on behalf of Desert Oil
that the summons in the contemplated
action was served and filed on
the 8 December 2023. I am further informed that GWK has already filed
its plea in the said matter
and that Desert Oil is to file its
replication, if any, on the 15 March 2024. Thereafter, the pleadings
in the matter will be closed.
4. The
agreement which is the core of the dispute between the parties is the
end result of a long history of litigation
between the parties. This
agreement came about as a result of Desert Oil exercising an option
to supply GWK with petroleum products
on the same terms as a
competitor ‘Total’, with the proviso that the parties can
negotiate an alternative supply agreement
in a stipulated time, which
could be extended by agreement in writing. This is essentially the
basis of the current dispute. The
current dispute essentially has at
its roots, a court order taken by agreement between the parties on
the 22 April 2022.
5.
The first
issue to be considered in this application for leave to appeal is
whether the interim interdict granted is a ‘decision’
as
contemplated by section 16(1)(a) of the Superior Courts Act
[1]
.
In other words, whether this is a judgment or order capable of being
appealed.
6. The
common law test as to when a matter is appealable was restated in the
matter of ZWENI v MINISTER OF LAW
& ORDER, where Harms AJA set
out the common law position as follows:
“
A
‘judgment or order’ is a decision which, as a general
principle, has three attributes, first, the decision must be
final in
effect and not susceptible of alteration by the court of first
instance; second, it must be definitive of the rights of
the parties;
and, third, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main
proceedings.”
[2]
7. The
situation came before the SCA again in the matter of DRDGOLD &
ANOTHER v NKALA & OTHERS, where
the position was set out as
follows:
“
Thus, the
following legal position crystallised under the Supreme Court Act. An
order that met the three
Zweni
requirements would be an appealable decision. In accordance with the
general rule against piecemeal entertainment of appeals, an
order
that did not have all of the
Zweni
attributes would generally not be an appealable decision. Such an
order would nevertheless qualify as an appealable decision if
it had
a final and definitive effect on the proceedings, or if the interests
of justice required it to be regarded as an appealable
decision.”
[3]
8.
The
question of appealability again came before the SCA in the matter of
TWK AGRICULTURE HOLDINGS (PTY) LTD v HOOGVELD BOERDERY
BELEGGINGS
(PTY) LTD & OTHERS
[4]
. Where
Unterhalter AJA, writing for the unanimous Bench of the SCA
considered the grounds upon which leave to appeal to the SCA
should
be granted.
[5]
The SCA in the
TWK case finds that the supremacy of the ‘Rule of Law’ as
set out in section 1 of the Constitution requires
that: “…the
law be ascertainable and meet reasonable standards of certainty. This
means that the courts should be
cautious to adopt standards for their
decisions so porous that a litigant cannot be advised, with any
reasonable probability, as
to the decision a court is likely to
make.”
[6]
9.
The SCA in
the TWK case also reasons that generally the High Court should bring
finality to the matter before it, as contemplated
in the
Zweni
judgment.
[7]
As it prevents
piecemeal appeals that are often costly and delay the resolution of
matters before the High Court. It provides a
degree of certainty with
which clients can be advised as to the appealability of their matter,
which is required by the concept
of the ‘Rule of Law’.
[8]
10.
In the TWK
case, the SCA finds that different considerations are at play when
considering leave to appeal to the Constitutional
Court (CC) due to
its position as the apex court under the amended constitutional
provision and the provisions of the Constitution
itself.
[9]
11.
The SCA in
the TWK case also states that: “…the doctrine of
finality, as articulated in
Zweni,
is central to a principled conception of when a matter may be
appealed to this court. That, in turn, permits this court to
discharge
its appellate functions to allow the apex court the
required freedom to act as a final court of appeal in carefully
selected matters.”
[10]
12. Finally, in stating
the SCA’s position on the question of appealability,
Unterhalter AJA, in the TWK case concludes:
“…
,
a number of decisions of this court have been willing, with different
degrees of separation, to part from
Zweni,
or subsume
Zweni
in the capacious remit of the interests of justice. I do not here
essay a general account of appealability. I do affirm, though,
that
the doctrine of finality must figure as the central principle of
consideration when deciding whether a matter is appealable
to this
court. Different types of matter arising from the High Court may (I
put it no higher normatively) warrant some measure
of appreciation
that goes beyond
Zweni
or may
require an exception to its precepts. Any deviation should be clearly
defined and justified to provide ascertainable standards
consistent
with the rule of law. Recent decisions of this court that may have
been tempted into the general orbit of the interests
of justice
should now be approached with the gravitational pull of
Zweni
.”
[11]
13. Although Unterhalter
AJA in the TWK case states that he is not attempting a general
account of appealability, it is to date
hereof the most detailed and
carefully reasoned guidance on how a High Court is to approach the
question of appealability to the
SCA. I dare say that I believe it
also sets out how the SCA will approach petitions to consider the
question of appealability where
the High Court has refused to grant
leave to appeal where the order granted does not have final effect.
14. My understanding of
the SCA approach in the TWK case, to the question of appealability,
is that
Zweni
is both the starting point and the primary test
for appealability of a High Court decision to the SCA. The ‘interests
of
justice test’ regarding appealability of a High Court
decision to the SCA will only apply in exceptional circumstances
where
the questions of law at issue or the factual circumstances
provide compelling justification for an appeal against an order which
is not final in effect.
15. In my opinion, GWK’s
assertion that my decision granting an interim interdict in this
matter on the 17 November 2023 is
appealable fails all three of the
considerations set out in
Zweni
.
16. Firstly, the order
granted on the 17 November 2023 is not final in effect and in the
right circumstances, it could be changed
by the court of first
instance. Secondly, save for the temporary rights of the parties up
to the outcome of the contemplated action,
the order granted on the
17 November 2023 is not definitive of the rights of any of the
parties
inter se
and will have no influence on the outcome of
the main trial in the said matter. Thirdly, the order granted on the
17 November 2023
does not dispose of any of the issues contemplated
in the main action let alone a substantial portion of such relief.
17. The order of 17
November 2023 is clearly not final in effect. The disputes that arose
in the application for the relevant interim
interdict will be
reconsidered in the trial relating to the main action. The court
entertaining the main action is not bound by
any of the conclusions
this court reached in considering the interim relief.
18.
GWK seeks
to rely on the decision of the CC in the matter of UNITED DEMOCRATIC
MOVEMENT & ANOTHER v LEBASHE INVESTMENT GROUP
(PTY) LTD &
OTHERS
[12]
(the UDM case) as a
basis for the assertion that in the present application, this court
should apply the ‘interests of justice
test’. However,
GWK loses sight of three important considerations in making this
assertion. Firstly, given the architecture
of the Constitution and
the position the CC holds as the apex court in such architecture,
different considerations apply.
[13]
Secondly, the UDM case involved important constitutional rights
encompassed in the right to freedom of speech. GWK has not
established
that any constitutional right is called into play in the
instant case. Thirdly, GWK would have to show exceptional
circumstances
as contemplated in the TWK case to justify the
application of the ‘interests of justice test’ to its
application for
leave to appeal to the SCA.
19. Mr Snellenburg SC
submitted on behalf of GWK that the interdict would force GWK into a
contractual relationship with Desert
Oil for a long period, while the
main action proceeded to trial.
20. In and of itself, I
do not believe that this ground put forward by Mr Snellenburg creates
the circumstances for the application
of the ‘interests of
justice’ test postulated by the SCA in the TWK case.
21. However, I am mindful
of the fact that the prospects of success of the various grounds
raised for leave to appeal might affect
this situation. The stronger
the prospects of success might be on any of the grounds raised, the
easier it would be to find the
exceptional circumstances to apply the
‘interests of justice’ test as contemplated in TWK.
22. Accordingly, I will
hold off on a final conclusion as to whether I should on the facts of
this case find that it is in the interests
of justice to grant leave
to appeal to the SCA until I have considered the prospects of success
of the various grounds put forward
for me to grant the requested
leave to appeal.
23. The first ground that
GWK seeks leave to appeal to the SCA on, is that initially Desert Oil
brought its application on condition
that,
alternatively
subject to an undertaking that Desert Oil would institute the
contemplated action before a specific date, to wit Friday, 30
September
2022.
24. The argument advanced
on behalf of GWK then proceeded with the submission that the relief
sought was reliant on due compliance
with that condition,
alternatively
undertaking to institute the action by the said
date. Desert Oil did not amend its Notice of Motion. That by failing
to comply
with such undertaking a central pillar upon which Desert
Oil sought relief was absent and the application had collapsed or had
self-destructed.
25. These submissions
made on behalf of GWK are decontextualised and present a misleading
picture of how this matter developed before
it was finally argued and
indeed how it was argued in the court of first instance.
26. The matter was
originally brought as an urgent application and was originally set
down for 9 September 2022. It was in that
context that the 30
September 2022 was initially put forward as the date upon which the
contemplated action would be initiated.
27. The matter did not
proceed as an urgent application on 9 September 2022. Instead, the
parties reached an agreement that disposed
of the urgency in the
matter. In
lieu
of the contemplated interdict GWK gave an
elaborate undertaking which would hold good for a month after this
court, as the court
of first instance, handed down judgment in the
application for an interim interdict.
28. The said agreement,
made an order of Court on 9 September 2022, provided for a timetable
to file answering and replying affidavits
as well as Heads of
Argument by the respective parties. The said Order also provided that
by agreement the matter would be postponed
to be argued as an opposed
matter on 6 October 2022 after the initial date contemplated for
initiating the main action being 30
September 2022.
29. Ms Davis SC on behalf
of Desert Oil conceded that Desert Oil had not amended its Notice of
Motion. However, she submitted that
given the context set out above
and the fact that it would have been futile for Desert Oil to
institute an action without an interdict
in place, as well as the
nature and terms of the agreement reached and made an Order of Court
on 9 September 2022 GWK could not
have believed that there was, or
relied upon an undertaking to institute the contemplated action
before 30 September 2022.
30. Further, Ms Davis
pointed out that at the hearing of this application a draft order was
placed before this court on behalf of
Desert Oil, where Desert Oil
sought an interdict pending the outcome of an action to be instituted
within 30 days from the date
of the order handed down by the court of
first instance. Ms Davis then submitted that if there was substance
to the argument now
raised by GWK, GWK would have objected to the
draft order placed before the court on the 6 October 2022. GWK did
not in fact raise
any objection to the said draft order or its terms.
31. The one consideration
that is fatal to the position now taken by GWK in relation to the
alleged ‘central pillar of relief’
or ‘undertaking’
argument now advanced on its behalf, is that if this was a genuinely
held view it would have been
prominently placed before the court of
first instance at the hearing of the application for the interdict.
Mr Snellenburg, submitted
that he had placed this issue before the
court of first instance and at end of his address.
32. Ms Davis asserts that
this matter was not argued in the court of first instance. I have
gone back to my bench book and checked
my notes, and I did not make a
note of this argument.
33. After the Application
for Leave to Appeal was argued, Mr Korber the attorney for Desert Oil
wrote to the court and copied his
letter to Mr Addinall the attorney
for GWK, proposing that the parties agree to the transcription of the
proceedings of the 6
th
October 2022 and that the parties
share the expense. I indicated to both parties that I would delay my
judgment on the ALA and
await the transcription if both parties
agreed to such transcription. GWK subsequently agreed to the
transcription. I afforded
both parties an opportunity to make written
submissions on or before the 19
th
April 2024 on what the
transcript revealed as it related to the dispute that arose when the
ALA was argued before me. Both parties
made written submissions
before the cut-off date set out above.
34. This dispute is in my
view a jurisdictional issue. If it is not technically a
jurisdictional issue, it is akin to a jurisdictional
issue in the
context of the present matter. As such one would expect it to be
front and central to GWK’s argument in the
court of first
instance. In its nature it is not an argument that can simply be
mentioned at the end of one’s address or
in passing at some
other point of the address. It would have been determinative of the
issue at hand and ought to have been raised
at the outset in an
appropriate way. In short it must be raised in a way that alerted Ms
Davis in the court of first instance that
it is a substantive matter
that needed to be dealt with to the extent that she had a fair
opportunity to deal with it. Ms Davis
maintained in oral argument
before this court that if this issue was raised, she most certainly
would have dealt with it appropriately.
35. As it turns out, from
the transcript, it was raised but not in a manner in which such an
issue ought to have been raised. Ms
Davis dealt with it appropriately
having regard to the manner in which it was raised.
36. I cannot escape the
conclusion that at the time the matter was argued on the 6
th
October 2022 the context summarised above was very real to all
concerned, including GWK. However, after the judgment of the court
of
first instance and for the purposes of the present application for
leave to appeal this aspect was decontextualised to support
an
argument that is disingenuous in the circumstances.
37. I do not believe that
a court of appeal could reach a different conclusion in the context
of the circumstances set out above.
38. The next ground upon
which GWK seeks leave to appeal is that in granting Desert Oil 60
days from the 17 November 2023 within
which to institute the relevant
action, I was guilty of judicial overreach. As the basis for this
ground for leave to appeal, Mr
Snellenburg submitted that I erred
when I stated that Desert Oil sought an interdict pending the outcome
of an action to be launched
with 30 days of the court’s
judgment in the court of first instance. Mr Snellenburg submitted
that Desert Oil was to institute
its action on or before the 30
September 2022. Further, Mr Snellenburg submitted that I was guilty
of judicial overreach when I
gave Desert Oil 60 days from the 17
November 2023 to institute the relevant action. On the basis that
Desert Oil did not ask for
such relief.
39. The answer to this
ground for leave to appeal is in two parts. The first part of the
answer incorporates the answer to the preceding
ground for leave to
appeal dealt with above. In that, taken in its proper context I
do not believe GWK can have any real
and honest belief that Desert
Oil ought to have instituted the action by 30 September 2022. I
relied upon the draft order handed
to me in circumstances where the
only conclusion that can be reached was that GWK acquiesced to the
draft order should I grant
an interdict. The circumstances allow for
no other conclusion.
40. The second part of
the answer to this ground for seeking leave to appeal is that in
effect I only adjusted the number of days
within which Desert Oil was
to initiate the contemplated action. I did this in response to what
the circumstances seemed to require
at the time. The end of the court
year was upon us. Attorneys and Counsel generally close their offices
over this period. In an
attempt to avoid further unnecessary
litigation and expense I extended the time period within which the
contemplated action was
to be instituted.
41.
This is
well within the rights of a presiding High Court Judge to regulate
the proceedings in the High Court to suit the prevailing
circumstances. It is different from, and distinguishable from a
situation where the Judge concerned ‘enters into the arena’
and offers one party advice on substantive issues or on the relief
such party ought to seek. That never happened in the present
case.
The circumstances of the present case are quite different from what
transpired in the case of NATIONAL COMMISSIONER OF POLICE
&
ANOTHER v GUN OWNERS SOUTH AFRICA
[14]
42. In these
circumstances, I do not believe that this is a valid ground to grant
GWK leave to appeal in this matter. I do not believe
another court
would reach a different conclusion.
43. The next ground upon
which GWK seeks leave to appeal, is the finding that the court of
first instance made in relation to Mr
Addinall and the alleged
statement that GWK will not enforce the breach in the circumstances.
This conclusion was reached in the
context of establishing a
prima
facie
right, though open to some doubt, upon which interim relief
could be granted. To the extent that I found that a
prima facie
right open to some doubt had been established in this regard my
reasoning in coming to such conclusion can be found from paragraph
37
to paragraph 42 in my judgment in the court of first instance in this
matter. I have considered the arguments raised by Mr Snellenburg
on
this aspect and from the submissions made on behalf of GWK I see no
rational basis that another court would reasonably come
to a
different conclusion on this aspect. In the circumstances, I cannot
grant leave to appeal on this ground.
44. The next ground on
which it was contended that leave to appeal should be granted was
that I erred in finding that the ‘Total
contract’ did not
come into operation between the parties until the 1
st
August 2022. This finding affected when notice to correct a
breach could be given. My reasoning is succinctly set out in
paragraph 69 of my judgment in the court of first instance. I do not
believe another court would come to a different conclusion.
Therefore, I cannot grant leave to appeal on this ground.
45. The next ground of
appeal is that I erred in finding that the letter to remedy dated 5
August 2022 cannot be regarded as a clear
and unequivocal notice of
breach and that the notice to remedy did not give sufficient
particularity of the alleged breaches to
give rise to a valid right
to cancel.
46. I have dealt with
this aspect in paragraphs 53 to 58 in my judgment which is now the
subject of the present application for
leave to appeal. On this
aspect I need to go further than that in response. Mr Snellenburg
argues that the letter from Mr Korber,
Desert Oil’s attorney in
this matter, dated 11 August 2022 (Annexure FA41), being a direct
response to the letter to remedy
dated 5 August 2022 (Annexure FA40)
does not raise the issue of the letter to remedy being vague and
non-specific. Mr Snellenburg
then contends that the issue of
vagueness was raised by Mr Korber for the first time in his letter of
the 25 August 2022 (FA44).
47. Dealing first with
annexure “FA44”, here indeed Mr Korber raises the issues
of vagueness, but in the context of
a different alleged breach. It
does not help GWK’s argument on this point.
48. Mr Korber’s
letter of the 11 August 2022 (FA41) focused much of his attention on
his belief that in the factual situation
that prevailed at the time,
the ‘Total agreement’ and more particularly its terms did
not come into operation between
the parties on the 15 July 2022.
49. There is nothing in
the said letter to indicate that Mr Korber was aware which of the
discounts dealt with in schedule “C”
to the Total
agreement GWK claimed it was entitled to. Mr Korber simply denied the
alleged breaches.
50. None of this detracts
from the fact that a ‘Notice to Remedy’, such as the one
contemplated in clause 19 of the
Total agreement, needs to be
specific in its terms to enable the alleged defaulting party to know
specifically what needs to be
done to purge any breach. That is after
all the real purpose of a ‘Notice to Remedy’.
51. In these
circumstances I cannot conclude that on this ground another court
would come to a different conclusion.
52. I turn next to the
dispute around the right to ‘own collection’ as a ground
to seek leave to appeal.
53. Mr Snellenburg argued
that Desert Oil exercised the option contemplated in the Court Order
taken by agreement on the 22 April
2022, knowing full well that it
could never grant GWK the option to ‘own collection’
having regard to the bulk supplier
Astron’s policy to not allow
‘own collection’.
54. Ms Davis objected to
such argument contending it amounted to testifying from the Bar and
that it was improper and unfair to
allow it in circumstances where
this contention did not appear in GWK’s answering affidavit.
That Desert Oil had never had
the opportunity to deal with such
contention.
55. In debating this
argument with Mr Snellenburg, I put to him that under the terms of
the order taken by agreement on the 22 April
2022 both GWK and Desert
Oil contemplated negotiating a supply agreement with terms that may
well differ from the Total agreement.
That in these circumstances,
the argument that Desert Oil exercised the option whilst knowing it
could not fulfil this ‘own
collection’ clause could not
stand. The best answer Mr Snellenburg could give me was that Desert
Oil ‘took a chance’.
That may well be so, but it does not
constitute a ground upon which I can grant leave to appeal in the
relevant circumstances.
Accordingly, it is not necessary for me to
rule on Ms Davis’s objection.
56. Mr Snellenburg
further submitted that GWK had the right to insist on performance
in
forma specifica
in respect of the option to ‘own
collection’ contained in the Total agreement. Desert Oil on the
other hand claims
that GWK will not suffer any prejudice in the
circumstances of the case if performance
per aequipollens
is
accepted.
57. I dealt with this
matter in paragraphs 83 to 88 in my judgment of the court of first
instance. I reached the conclusion that
initially GWK’s concern
was with potential financial prejudice it might suffer. This is
evident from the ‘Notice to
Remedy’ itself. Desert Oil
tendered to put GWK in the same position financially as if it had
collected its own fuel from
the Astron depot on the coast. However,
to give effect to this tender Desert Oil required the cooperation of
GWK to establish its
costs in collecting fuel. This cooperation was
not forthcoming from GWK. Essentially those are the reasons for
deciding that GWK
would not be prejudiced by equivalent performance
in these circumstances. It follows from these circumstances that GWK
could not
cancel the ‘Total agreement’ on this ground.
58. I am satisfied that
another court would not come to a different conclusion on the
substituted performance in these circumstances.
Accordingly, I cannot
grant leave to appeal on this ground.
59. The next ground upon
which GWK seeks leave to appeal is that I erred in finding that as at
the 5 August 2022, GWK was not entitled
to 30-day credit terms. That
on considering this ground I failed to have regard to the terms of
the ‘Total agreement’.
60. The ‘Total
agreement’ consisted of a suite of documents that were annexed
to the 22 April 2022 court order. One
of those documents was
described as annexure “B” and was a Total credit
application form. As such it was part and parcel
of the ‘Total
agreement’. This, under the provisions of paragraph 2.2 of the
said document, gave Desert Oil the right
to revoke any credit
facilities on written notice to GWK. Such notice was given on the 2
August 2022. Also, paragraph 2.3 of the
said document gave Desert Oil
the right to insist on cash on delivery, without any notice.
Accordingly, I cannot find that another
court would come to a
different conclusion in regard to the alleged failure to allow GWK 30
days credit. In these circumstances,
I cannot allow leave to appeal
on this ground.
61. The next ground upon
which leave to appeal was sought is that I erred in finding that the
Notice of Cancellation of the 24 August
2022 contained a new ground
for cancellation which should have been preceded by a new Notice to
Remedy in terms of clause 19 of
the Total agreement.
62. Mr Snellenburg
submitted that where a party gives notice of cancellation on grounds
that do not validly constitute grounds for
cancellation. Such party
may rely on a different breach, which would justify termination, that
existed at the time that the original
notice was sent. That a new
notice of termination was not required.
63. In making such
submission Mr Snellenburg relied on the following authorities: PUTCO
LIMITED v TV AND RADIO GUARANTEE Co (PTY)
LTD AND OTHER RELATED CASES
1985 (4) SA 809
(A); MATADOR BUILDINGS (PTY) LTD v HARMAN
1971 (2) SA
21
(C); DATACOLOR INTERNATIONAL (PTY) LTD
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA); and
STEWART WRIGHTSON (PTY) LTD v THORPE
1977 (2) SA 943
(A).
64. The relevant
termination clause is quoted verbatim in paragraph 46 of my judgment
in the court of first instance. None of the
authorities relied upon
by Mr Snellenburg in making his argument as set out above related to
the enforcement of a
lex commisoria
of the kind stipulated in
clause 19 of the Total agreement, which, as set out above, is quoted
in paragraph 46 of my judgement.
65. Such
lex
commosoria
must be strictly complied with. See the authorities
cited at paragraph 46 in my judgment of the court of first instance.
Accordingly,
I cannot grant leave to appeal on this ground.
66. The next ground upon
which GWK seeks leave to appeal is that I erred in finding that GWK
had not established an adequate case
to cancel the agreement with
Desert Oil based on the Total agreement. I have dealt with this
extensively in my judgment from paragraph
73 to 93 thereof. No
purpose will be served by restating what is set out in my judgment. I
believe I have provided comprehensive
reasons. I do not believe given
the facts and circumstances as they emerged from the papers before
the court of first instance
that another court would come to a
different conclusion. Accordingly, I cannot grant leave to appeal on
this ground.
67. Then GWK submits as a
ground for leave to appeal that I erred in finding that an award for
damages is not a suitable alternative
remedy.
68. Here Mr Snellenburg
argued that I ought not to have found that Desert Oil was at risk of
losing its branded marketer agreement
with Astron as this only came
out in the replying affidavit and that GWK did not have an
opportunity to deal with this.
69. Desert Oil did aver
in its founding affidavit that it was at risk of losing its standing
with Astron. In my view, this sufficiently
lays the foundation for
Desert Oil in responding to the answering affidavit to explain in its
replying affidavit that it was at
risk of losing its branded
marketing agreement with Astron.
70.
Ms Davis
relied on the authority of V & A WATERFRONT PROPERTIES (PTY) LTD
v HELICOPTER AND MARINE SERVICES (PTY) LTD & OTHERS
[15]
for her argument that a claim for damages is not a suitable
alternative remedy where it would in effect compel Desert Oil to part
with its right to enforce the contract with GWK. In my view Ms Davis
is correct.
71. Accordingly, I do not
believe this ground for seeking leave to appeal can be supported. I
do not believe that another court
would reach a different conclusion.
72. GWK has not persuaded
this court on any of the grounds advanced that another court would
come to a different conclusion. Having
regard to my view, set out
above, in relation to the argument advanced by Mr Snellenburg on
behalf of GWK for applying the ‘interests
of justice’
test to determine if a matter is appealable and also having regard to
the fact that I am unpersuaded on the prospects
of success if an
appeal is allowed. In these circumstances, I cannot find that it is
in the interests of justice to grant leave
to appeal to the SCA.
73. Even if GWK would
succeed on appeal, it would not dispose of any of the issues between
the parties. All that would mean is that
Desert Oil, if it were to
lose the interdict and succeed in the trial in the main action, would
have engaged in a long and expensive
futile exercise as there is no
way to turn back the clock if the interdict falls away and GWK
contracts with another party. This
would result in the infrastructure
of Desert Oil being removed from the Vaal Rivier Diensstasie site.
Leaving Desert Oil with no
way to enforce any judgment it might win
in its favour.
74. In these
circumstances, it is my view that GWK has not established that the
order of 17 November 2023 is appealable. Certainly
not on the grounds
set out in
Zweni
for the reasons set out above. Also, not on
the grounds of it being in the interests of justice to allow such
appeal.
75.
GWK has not
established that there are prospects of success as contemplated by
section 17(1)(a)(i) of the Superior Courts Act
[16]
.
GWK has also not established that there is any other reason why the
appeal should be heard as contemplated in section 17(1)(a)(ii)
of the
said act.
[17]
Further, GWK has
also not established that the appeal would lead to a just and prompt
resolution of the real issues between the
parties as contemplated by
section 17(1)(c) of the said act.
[18]
76. The last remaining
issue is the issue of costs. There is no reason why the ordinary rule
that costs follow the event should
not be applied.
77. In these
circumstances the application for leave to appeal stands to be
dismissed with costs.
Accordingly,
the following order is made:
1)
The application for leave to appeal is dismissed.
2)
The present applicant (GWK) is to pay the costs of this application.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
REPRESENTATION:
Applicant:
ADV
N SNELLENBURG (SC) and ADV JG GILLILAND
Instructed
by:
VAN
DE WALL INC.
Respondent:
ADV
DM DAVIS (SC)
Instructed
by:
HAARHOFFS
INC.
Date
of Hearing:
04
March 2024
Last
Written Submission:
19
April 2024
Date
of Judgment:
26
April 2024
[1]
Act 10 of 2013.
[2]
1993 (1) SA 523
(AD) at 532I to 533A.
[3]
2023 (3) SA 461
(SCA) at para [24].
[4]
2023 (5) SA 163 (SCA).
[5]
TWK above at paras [19] to [30].
[6]
TWK above at para [20].
[7]
TWK above at para [21].
[8]
TWK above at para [21].
[9]
TWK above at para [25] and [26].
[10]
TWK above at para [29].
[11]
TWK above at para [30].
[12]
2023 (1) SA 353
(CC).
[13]
See footnotes 7, 8, 9 and 10 above and the passages of the TWK
judgment referred to therein.
[14]
2020 (6) SA 69 (SCA).
[15]
2006 (1) SA 252
(SCA) at para [23].
[16]
Above.
[17]
Above.
[18]
Above.