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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 122856/2025
(1) REPORTABLE NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 8 August 2025
SIGNATURE:
In the matter between
AL MADAR GENERAL TRADING (PTY) LTD APPLICANT
T/A MAMS CASH AND CARRY
REGISTRATION NUMBER: 2020/02478/07
and
THE CITY OF TSHWANE METROPOLITAN FIRST RESPONDENT
MUNICIPALITY
THE CITY MANAGER OF THE TSHWANE SECOND RESPONDENT
METROPOLITAN MUNICIPALITY
JUDGMENT
VAN DEN BERG AJ
[1] The applicant urgently applies for an interim interdict to suspend the
enforcement of prohibition notices issued by the City of Tshwane Metropolitan
Municipality that led to the closure of the applicant’s business and the
cessation of operations.
[2] The applicant, Al Madar General Trading operates a Cash and Carry business
dealing in foodstuffs in Mamel odi East, Extension 18, Pretoria. The first
respondent, the City of Tshwane Metropolitan Municipality (“the
Municipality”/first respondent ) issued a temporary permit to the applicant to
conduct its business at its premises on 26 November 2024.
[3] On 20 May 2025, the Municipality issued the applicant with a Prohibition
Order under Regulation 4 of R638 of 22 June 2018, pursuant to the
Foodstuffs, Cosmetics and Disinfectants Act, 54 of 1972 (“the FCDA”), citing
violations related to foodstuffs, hygiene, and foo d safety (“the Prohibition
Order”). The Prohibition Order also specified that:
“In terms of regulation 4(2) of the abovementioned regulations, you are
hereby prohibited to sell foodstuffs contrary to the requirements set out.”
[4] The Municipality issued the applicant on the same day , also with a s 16(2)
Instruction Notice in terms of the Fire Brigade Services Local Authority Notice
396 dated 9 March 2016 (“the s 16(2) instruction”). The Prohibition Order d id
not instruct the applicant to close its business or cease trading. The s 16(2)
instruction asserted that the applicant failed to submit an application for the
approval of building plans. The further relevant part of the s 16(2) instruction
reads as follows:
[5] The applicant promptly took measures to address the issues identified in both
the Prohibition Order and the s 16(2) instruction. On 6 June 2025, the
applicant supplied the first respondent with documentary evidence of efforts
undertaken to resolve these issues. No response was received from the first
respondent.
[6] On 4 July 2025 , the applicant’s attorneys addressed correspondence to the
first respondent and confirmed that the applicant had complied with the
complaints and requested permission to resume trading. No response was
received from the first respondent. The applicant lodged an appeal on 16 July
2025 against both the Prohibition Order and the s 16(2) instruction in terms of
s 62 of the Municipal Systems Act, 32 of 2000 (“the MSA”). Following the
lodgement of the appeal, the applicant resumed trading.
[7] On 18 July 2025 , a W arrant Officer of the first respondent attended the
premises and enforced closure, directing the immediate cessation of
operations under threat of penalties, including fines or imprisonment. The
applicant duly complied with the said instruction.
[8] A final demand was made on behalf of the applicant by its attorneys on 21
July 2025, and the present urgent application was served on 25 July 2025.
The following requirements must be adhered to; ~ 1,,, /40 -1___'1.__f )e,JJ ✓/J;;·rr
And he completed before or on: c}r, &z rk<i.... ;fJVQ. (\/}µ S~.5' ut 12:00
WARNING: If you fall to comply with thi~ notice you will be summonsed to appear In a 1rn1glstrnte's court and a flno of
not more than R5 000,00 or imprisonment fol' u period of 6 months may be imposect on conviction. 1'ho original hereof
w<1s loday handed to tho aforementioned personally ancl the importance thereof explalood to him/her.
[9] On Monday, 4 August 2025 after the respondents had delivered their
answering affidavit, the first respondent procee ded to advised the applicant of
its decision to dismiss the appeal on the grounds that the appeal was irregular
as it could not be lodged in terms of s 62 of the MSA, The first respondent
further withdrew the s 16(2) instruction.
[10] The applicant and respondents were both represented by counsel at the
arguing of the urgent application on Tuesday , 5 August, and Thursday , 7
August 2025. The parties exchanged papers and provided the Court with
heads of argument.
[11] The applicant claims that the application is urgent and seeks immediate relief
to resume trading. The respondents argue that the urgency is self -created
and that the applicant has alternative remedies available. I am satisfied that
the application is urgent and have proceeded to hear the matter accordingly.
[12] Mr Aucamp , who appeared on behalf of the applicant , submitted that the
Prohibition Order should be suspended pending the outcome of review
proceedings. The applicant has established a prima facie right to trade,
supported by its compliance with the requirements set out in the Prohibition
Order, which was not seriously disputed by the first respondent in their
answering affidavit. The first respondent did not contradict the applicant’s
evidence that it obtained the necessary pest control cer tificate, food safety
training, submitted building plans and engaged a Town Planner for rezoning.
[13] The first respondent adopted a technical basis of opposition to the relief
sought. In paragraph 62 of the answering affidavit , the following is stated
regarding the steps taken by the applicant in compliance with the Prohibition
Order and instruction:
“... the Respondents would still need to satisfy themselves that indeed
rectifying measures have been implemented, through an inv estigation and not
a mere submission of documents.”
[14] The argument developed by Mr Sekwakweng, on behalf of the Municipality,
was to the effect that the applicant’s submission of documents and the final
demand by the applicant’s attorneys were not in terms of Regulation 4(4) of
the Regulations. Regulation 4(4) provides that:
“... The person in charge or his or her representative, upon whom a prohibition
order was served, may after rectifying the conditions which led to the issuing
of a prohibition order, in writing request the removal of the prohibition order.”
[15] Regulation 4(5) and 4(6) further prescribe that the Municipality must, within 72
working hours of receiving the written request, carry out an investigation of the
food premises, facility, activity or circumstances that gave rise to the
prohibition. Once the investigation is complete, the Municipality must inform
the person in writing, on whom the prohibition order was served, whether the
prohibition order has been withdrawn or remains in force, as applicable.
[16] The applicant claims that it never had the opportunity to make submissions
before the Prohibition Order , s 16(2) instruction or order to close its business
and cease operations were issued. After the Prohibition Order and s 16(2
instruction were issued, it took the necessary steps to comply, and its final
demand by the applicant’s attorney was akin to a request under Regulation
4(4). The Municipality does not deny that it receive d the documents or that it
was aware of the cor respondence from the applicant’s attorneys. Therefore,
there is no real argument that this did not, under the circumstances, prompt or
should have prompted the Municipality to initiate an investigation as required
by Regulation 4(5) and 4(6). The Municipal ity cannot claim that it is not
obliged to assist taxpayers seeking to comply with Prohibition Orders, as in
this case, solely on the basis that the documents were not submitted using the
“correct” form, did not cite the relevant regulation, or lacked a sp ecific
“correct” form, did not cite the relevant regulation, or lacked a sp ecific
phrasing in their submission request.
[17] The applicant has established a prima facie right to trade. The prolonged
closure of the applicant’s business risks irreparable harm, including loss of
customers, commercial reputation, potential collapse of the business, loss of
job opportunities and a damages claim would not provide adequate redress
as the harm is ongoing and not readily reversible.
[18] The applicant plays a significant role in the local community by selling food
and acting as an employer, and there is no substantial evidence to suggest
any real risk that continued trading in foodstuffs could lead to harm . In this
regard, it is again emphasised that the respondents failed to present any
direct evidence before the Court of any risk, harm, or other substantial threat
to the community’s wellbeing or safety should the applicant be permitted to
trade in foodstuffs.
[19] The applicant relied upon the authority of Cotty and others v Registrar,
Council for Medical Schemes and others 1 which aff irmed the common law
principle that an appeal against an administrative decision suspends the
execution of that decision. The regulations contain no express provision to
the contrary, and I accept that the appeal lodged by the applicant in any event
suspended the operation of the Prohibition Order.
[20] The applicant further referred the Court to the judgment in Welgevonden
Lodge No 57 (Pty) Ltd v Limpopo Provincial Liquor Board 2 in which the Court
emphasised its inherent jurisdiction to grant interim relief to prevent injustice
and hardship, particularly in commercial matters. It highlighted the
importance of granting relief when unreasonable delays or administrative
failure cau se prejudice. The applicant has been conducting business for
many years, and the premises were previously licensed for the trade in
foodstuffs. The applicant has taken the measures in terms of the Prohibition
Order and wishes to regularise its trade in a ccordance with the relevant
legislation. There is no evidence that the continued trade by the applicant
was not in the public interest or had a negative impact on the community.
1 2021 (4) SA 466 (GP)
2 2021 JDR 2260 (LP)
[21] In the premises , I find that it is likely, on the available evidence, that t he
applicant will succeed in obtaining the necessary permissions in compliance
with the Prohibition Order.
[22] The purpose of this order is not to interdict the first respondent from fulfilling
its constitutional obligation or to limit in any way its regulato ry and
enforcement powers. It merely provides an opportunity for a decision to be
taken on the applicant’s compliance with the Prohibition Order, and should it
not be withdrawn, a review of such decision. The relief originally applied for in
the Notice of Motion to interdict the Municipality could have encroached on
the doctrine of separation of powers. Upon considering the answering
affidavit, the dismissal of the appeal and given the withdrawal of the s 16(2)
instruction, the applicant changed its tack a nd proposed a draft order in line
with the relief that was granted in Welgevonden3.
[23] In light thereof that there is a possibility that the Municipality may withdraw the
Prohibition Order once it has completed its investigation in terms of
Regulation 4(5) and 4(6) and since no other Court will be in a better position
to decide on the issue of costs, I have exercised my discretion in awarding the
costs of the application in favour of the applicant.
[24] Regrettably, the Municipality chose to oppose the urgent application on
technical grounds. It would have been more prudent to dedicate time, effort,
and resources to verifying the applicant's compliance and attempts to
regularise the situation, in the interest of all stakeholders and the community.
[25] Accordingly, I grant the order as set out below:
1. The first respondent is hereby directed to, within a period of 72 working
hours from the date of this order, carry out an investigation of the
premises at 3 […] T[…], F […] Avenue, Mamelodi East, Extension 18,
Pretoria, (“the premises”), as well as the facility, activities, or
3 [20] ibid and footnote 2
circumstances that gave rise to the Prohibition Order, dated 20 May
2020, (“the Prohibition Order”), and to determine whether the
Prohibition Order should be withdrawn or remain in force, as the case
may be, in accordance with Regulations 4 (4) and 4(5) of the
Regulations Governing General Hygiene Requirements for Food
Premises, the Transport of Food and Related Matters (“the
Regulations”), issued under the Foodstuffs, Cosmetic and Disinfectants
Act 54 of 1972 (“the FCDA ”).
2. The applicant is hereby authorised to trade as a cash and carry business
dealing in foodstuffs at the premises, subject to the FCDA and the
Regulations, as if not violating the Prohibition Notice, until the final
outcome of the investigations launched in t erms of Regulation 4(5) and
the first respondent's decision, made pursuant, has been communicated
to the applicant as per Regulation 4(6).
3. Should the first respondent decide not to withdraw the Prohibition Order,
then the applicant is authorised to co ntinue trading until such time as the
decision could have been finalised on review before this court, subject to
the applicant instituting review proceedings within 1 (one) month of the
decision being communicated and received by the applicant.
4. The fir st respondent is to pay the costs of this application as between
party and part, such costs to include the cost of Counsel on Scale B.
___________________________
J.P VAN DEN BERG
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For the Applicant: Adv S Aucamp
Instructed by Jacques Classen Inc Attorneys
For the Respondent: Adv M.D Sekwakweng
Instructed by Diale Mogashoa Attorneys
Date of hearing: 5 and 7 August 2025
Date of judgment: 8 August 2025
MODE OF DELIVERY: This judgment is handed down by circulation to the parties’
legal representatives by email, and by being uploaded on CaseLines and released to
SAFLII. The delivery date and time are deemed to be 8 August 2025, at 10:00 a.m.