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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 122856/2025
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
DATE OF HEARING (Application for leave to appeal): 26 SEPTEMBER 2025
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
[1] The first and second respondents in the urgent application appl y for leave to
appeal to the Supreme Court of Appeal, alternatively the Full Bench of the
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above Honourable Court in terms of section 17(1)(a) of the Superior Courts
Act, 10 of 2013, against the whole of the judgment and order handed down on
8 August 2025, which found that:
“[1] The first respondent is hereby directed to within a period of 72
working hours from date of this order, carry out an investigation of
the premises at 3[...] T[...], F[...] Avenue, M[...] East, Extension 18,
Pretoria, (“the premises”), facility, activities or circumstances at
which gave rise to the Prohibition Order, dated 20 May 2020, (“the
Prohibition Order”) and determine whether the Prohibition Order is
to be withdrawn, or to remain in force as the case may be, in
terms of 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 in terms
of the FoodStuffs, Cosmetic and Disinfectants Act 54 of 1972 (“the
FCD Act”).
[2] The applicant is hereby authorised to trade as a cash and carry
business dealing in foodstuffs at the premises, subject to the FCD
Act and the Regulations, as if not violating the Prohibition Notice,
until the final outcome of the investigations launched in terms 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 continue 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.
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[4] The first respondent is directed and ordered to pay the costs of
this application between party and part, such costs to include the
cost of Counsel on Scale B.”
[2] The parties are referred to in this judgment as cited in the urgent application
(i.e., the applicant as "the applicant” and the first and second respondents as
“the respondents” or collectively as “the Municipality”.
THE LEGAL POSITION IN DECIDING IF LEAVE TO APPEAL SHOULD BE
GRANTED
[3] Section 17(1) of the Superior Courts Act provides that leave to appeal may
only be given where the Judge believes that:
[3.1] The appeal would have reasonable prospects of success; or
[3.2] There is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration.
[4] The prospect of success required in terms of Section 17(1)(a)(i) is to be
decided without reference to the parties’ wishes. 1 Inn Mont Chevaux Trust v
Goosen2 the Court held that:
“It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion, ...The
use of the word "would" in the new statute indicates a measure of
1 Rail Commuter Action Group v Transnet Limited trading as Metrorail (Number 2) 2003 (5) SA
593 (C)
2 2014 JDR 2325 (LCC)
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certainty that another court will differ from the court whose judgment is
sought to be appealed against. ...”3
[5] The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the law, that a Court of Appeal could
reasonably arrive at a conclusion different to that of the trial Court. To
succeed, the applicant must convince the Court on proper grounds that he
has prospects of success on appeal and that those prospects are not remote
but have a realistic chance of succeeding. There must be a sound, rational
basis for the conclusion that there are prospects of success.4
[6] Leave to appeal is further granted not in respect of the reasons for the
judgment but in respect of the order itself. Therefore, the success of the
application for leave to appeal must be related to the outcome of the case and
not an argument that fails to dispose of the case in the Appellant's favour.5
[7] In the matter of Tecmed Africa v Minister of Health 6 the Supreme Court of
Appeal held:
“[17] First, appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus, whether or not a
court of appeal agrees with a lower court’s reasoning would be of no
consequence if the result would remain the same (Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA
353 (A) at 354).”
[8] The respondents assert that the issues raised in the application for leave to
appeal are of significance to local government. These include the appropriate
boundaries of the interim relief granted, the legal implications of out -of-time
internal appeals, and the interpretation of regulations issued in terms of the
FCD Act. According to the respondents, there exists a well -founded and
3 At para 6
4 S v Smith 2012 (1) SACR 567 at 570, para 7
5 Goodwin Stable Trust v Duohex (Pty) Ltd (2) [1996] 3 All SA 119 (C)
6 [2012] 4 All SA 149 (SCA) also reported as 2012 JDR 0821 (SCA)
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rational basis to conclude that a different Court would arrive at an alternative
decision.
GROUNDS UPON WHICH TO LEAVE TO APPEAL IS SOUGHT
[9] The application for leave to appeal is based fundamentally on the following
grounds:
[9.1] First, the judgment misapplied the standard that governs interim
interdicts, which restrain statutory powers as articulated in National
Treasury v Opposition to Urban Tolling Alliance7.
[9.2] Second, it relied on Welgevonden Lodge No 57 (Pty) Ltd v Limpopo
Liquor Board 8 on inapposite facts because that case addresses
administrative inaction, while this case concerns active enforcement.
[9.3] Third, it treated unilateral assertions and documents as compliance,
notwithstanding Regulation 4(4) to (6), which requires verification by
the competent authority.
[9.4] Fourth, it misconstrued the effect of an interim appeal lodged outside
the 21-day period in section 62 of the Municipal Systems Act,32 of
2000.
[9.5] Fifth, it crossed the separation of powers boundaries by substituting
judicial management for administrative discretion in a polycentric
public health domain.
[9.6] Sixth, it misdirected itself on costs by penalising a regulator despite
material non-compliance with the regulations.
7 2012 (6) SA 223 (CC)
8 [2021] ZAGPPHC
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IS THE ORDER OF THE 8TH OF AUGUST 2025 APPEALABLE
[9] An interim interdict, pending the resolution of a substantive action or
application, is not conclusive in its effect. The issues determined for the
purpose of granting the interim interdict do not acquire the status of res
judicata and are, accordingly, not typically considered appealable final
decisions.9
[10] The purpose of interim relief is to consider the balance of convenience and to
do justice. In urgent applications , the Court exercises its discretion upon the
evidence available at the time and possibly under circumstances that may be
described as “ a necessary imperfect procedure, which is nonetheless usually
best designed to achieve justice.”10
[11] The term “final in effect” means that an issue in the suit has been affected by
the order such that the issue cannot be revisited either by the Court of first
instance or the hearing in the pending proceedings. 11 However, distinguishing
between interim and final decisions, which are appealable, is inherently
complex, and making either determination produces some unsatisfactory
results.
[12] In Andalusite Resources (Pty) Ltd v Investec Bank Limited and another 12 it
was held by Keightley J (as she was then) that the Court has to distinguish
between the effect of an interdict on the disputed right itself and its effect on
the object of that right. An interim order does not finally dispose of the rights
between the parties. The list remains to be disposed of in the pending
proceedings. If the granting of the interdict will not have a final effect on the
underlying disputed right, it remains interim.
9 Cipla Agrimed v Merck 2018 (6) SA 440 (SCA) at [19] / 447C and [37] / 453H to 454A and B
10 Cipla Agrimed v Merck 2018 (6) SA 450 (SCA) [44] / 456D to F
11 Cipla supra [48 / 4567F]
12 2020 (1) SA 140 (GJ)
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[13] In National Treasury v Opposition to Urban Tolling Alliance 13, Justice
Moseneke DCJ stated that the Constitutional Court had granted leave to
appeal concerning interim orders on the basis that it was in the interest of
justice. Mr. Sekwakweng argued accordingly on behalf of the Municipality that,
considering the nature of the relief granted against the municipality, it is
appropriate for leave to appeal to be given in the interest of justice. However,
this argument does not comprehensively consider the necessity for the Court
to evaluate all relevant circumstances, including whether the interim order has
a final effect or resolves a substantial portion of the relief sought, whether the
temporary restraining order has an immediate and significant impact, and
whether the harm caused by such orders is serious, immediate, ongoing, and
irreparable.
[14] The high-water mark of the respondents ’ opposition in respect of serious,
immediate, ongoing , and irreparable harm is set out in paragraph 80 of the
answering affidavit, which reads as follows:
“... The public health considerations of the community outweigh the
Applicant’s commercial interest. The community’s right to safe food
handling and fire compliance cannot be compromised by the Applicant’s
financial gain.”
[15] Apart from the aforesaid bold and unsubstantiated allegation, the respondents
did not present any evidence before the Court of a single instance of a health
hazard or serious threat to the community.
[16] Furthermore, Mr. Aucamp, on behalf of the applicant, asserts that Regulations
4(2), (3), (5), and (6) of the Foodstuffs, Cosmetics and Disinfectants Act, 54 of
1972, stipulate that if an inspector, following an inspection of food premises or
a facility, forms the opinion that such premises, facility, or activity pose a
health hazard and that the continued operation thereof must be prohibited, the
local authority “may summarily prohibit the use of the food premises."
13 2012 (6) SA 223 (CC)
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Regulation 4(2) requires the inspector to be satisfied that a health hazard
exists that warrants prohibition. In such a scenario, the municipality
possesses the discretionary power to act, as evidenced by the use of the
word “may" rather than "shall."
[17] It is the exercise or non -exercise of this discretionary power that forms the
core of the dispute between the parties, which the Court has not yet
definitively resolved.
[18] The Court did not make a definitive ruling on any of the contested aspects.
The purpose of the relief granted was solely to restore the status quo pending
the completion of internal procedures as stipulated by the regulations or the
applicant's intended review application.
[19] Section 18(2) of the Superior Courts Act, 10 of 2013, provides that “unless the
Court under exceptional circumstances orders otherwise, the operation and
execution of a decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application for leave to appeal or an
appeal is not suspended pending the decision of the application or appeal.”
[20] For the reasons as set out above , the order of 8 August 2025 is interim and
does not have final effect. The order is not appealable. Its operation was not
suspended by the filing of the application for leave to appeal. It is for this
reason that it is also not necessary to deal with the respondent's applications
in terms of s 18 of the Superior Courts Act.
[21] If I am mistaken on this point, I will review the other main grounds of appeal
that have been argued and thoroughly addressed in the heads of argument
submitted by the applicant and respondents.
APPEAL LODGED OUTSIDE THE PERMITTED PERIOD
[22] The respondents assert that the Court erred in its decision regarding the
interim appeal, which was submitted beyond the statutory 21 -day period
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stipulated in the Municipal Systems Act, 32 of 2000. They contend that this
delay resulted in the appeal lacking legal effect and did not suspend the
operation of the Municipality’s Prohibition Order. However, this argument
neglects the undisputed facts that, irrespective of the delay, the Municipality
considered the appeal and dismissed it on its substantive merits, as detailed
in the applicant’s replying affidavit. These grounds are unrelated to the issue
of timeliness.
SEPARATION OF POWERS HARM
[23] Holmes JA said in Olympic Passenger Services (Pty) Ltd v Ramlagan14:
“Upon proof of a well-grounded apprehension of irreparable harm, and
there being no adequate ordinary remedy, the Court may grant an
interdict – it has a discretion to be exercised judicially upon a
consideration of all the facts. Usually this will resolve itself into a nice
consideration of the prospects of success and the balance of
convenience – the stronger the prospects of success, the less need for
such balance to favour the applicant. The weaker the prospects of
success, the greater the need for the balance of convenience to favour
it.”
[24] In National Treasury v Opposition to Urban Tolling Alliance (the OUTA
judgment)15 the interim interdict that was granted was aimed at preventing the
implementation of a Government Policy decision. This is the first important
distinction between the OUTA judgment and the current application. The order
of 8 August 2025 does not prohibit or stop the Municipality from exercising its
regulatory power. It is trite that t he Court does not readily grant applications
that concern an application to restrain the exercise of statutory powers. Relief
of this nature is only granted in exceptional circumstances when a strong case
is made out.
14 1957 (2) SA 382 (D) at 383
15 2012 (6) SA 223 (CC)
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[25] It is settled that, beyond the common law, separation of powers is an even
more vital tenet of our constitutional democracy. This means that the
Constitution requires Courts to ensure that all branches of government act
within the law. However, Courts in turn must refrain from entering the
exclusive terrain of the executive and legislative branches of government
unless the Constitution mandates it. This means , in the words of Justice
Moseneke in the OUTA judgment, that the well-known Setlogelo test must be
applied cognisant of the normative scheme and democratic principles that
underpin our Constitution. The Court must consider, in granting interim
interdicts, that it does so in a way that promotes the objects, spirit, and purport
of the Constitution.
[26] The balance of convenience inquiry must carefully examine whether and to
what extent a restraining order will likely encroach upon the exclusive domain
of another branch of government. The inquiry must, along with other relevant
harm, have proper regard to what may be called separation of powers harm.
Our Courts should be wary of self-censorship and should not be afraid to do
justice and afford an equitable remedy to those before them, as they are
empowered to do. In the words of Cameron J, “the boogieman of separation
of power concerns should not cause Courts to shrink from their constitutional
responsibility.”16
[27] The Municipality has and continues to exercise its statutory power, and the
interim relief will not thwart the Municipality from carrying out its statutory
duties. The interim relief does not , in any way , interdict or restrain the
Municipality from exercising and enforcing its regulations. It merely allowed
the applicant to continue trading in respect of the specific infringement
notices. The interim relief will not infringe upon the Municipality's statutory
powers.
[28] In the premises, I am not convinced that another Court would come to a
powers.
[28] In the premises, I am not convinced that another Court would come to a
different conclusion, and I grant the following order:
16 Amabhungane Centre v Minister of Justice 2021 (3) SA 246 (CC) at 306C to 307
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(1) The application for leave to appeal is dismissed with costs.
(2) The first and second respondents are ordered to pay the costs of the
application for leave to appeal, including the costs of counsel on Scale
B.
___________________________
JOHAN 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: 26 September 2025
Date of judgment: 01 October 2025
MODE OF DELIVERY : This judgment is handed down by circulation to the parties’
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SAFLII. The delivery date and time are deemed to be 01 October 2025, at 14:00
a.m.