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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Appeal case no: AR296/2024
In the matter between:

MARK TREVOR GEORGE APPELLANT

and

BEHEER SINGH FIRST RESPONDENT
MANO SINGH SECOND RESPONDENT
ETHEKWINI MUNICIPALITY THIRD RESPONDENT


Coram: P Bezuidenhout, Mngadi and Mossop JJ
Heard: 29 August 2025
Delivered: 17 October 2025


ORDER


On appeal from: KwaZulu-Natal Division of the High Court, Durban (Masipa J, sitting
as the court of first instance):
1. The appeal is upheld and the judgment of Masipa J, delivered on 3 July 2023,
is set aside and is replaced with the following order:
‘The rule nisi issued on 27 January 2022, save for the relief claimed in paragraph 2.4,
is confirmed against the first, second and third respondents.’

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2. The respondents shall pay the appellant’s costs, jointly and severally, the one
paying, the other to be absolved, in respect of:
(a) The proceedings before Masipa J;
(b) The application to the Supreme Court of Appeal for leave to appeal; and
(c) On appeal, with the costs on appeal to include the costs of senior counsel,
where so employed, and which costs may be taxed on scale C.


JUDGMENT


Mossop J (P Bezuidenhout and Mngadi JJ concurring):

Introduction
[1] On 3 July 202 3, Masipa J discharged a rule nisi with costs that had been
granted to the appellant against the respondents on 27 January 2022 . I shall refer to
the order granted on 27 January 2022 as ‘the order’. An application by the appellant
for leave to appeal the discharge of the order was subsequently refused by the learned
judge and t he app ellant consequently applied to the Supreme Court of Appeal for
leave to appeal, which application was granted on 27 March 2024. That appeal is now
before us.

The issues
[2] Central to this appeal is the Grosvenor Hotel (the hotel) , a venerable
establishment located at Soldier’s Way in the heart of the old central business district
of the city of Durban.

[3] The respondents have presented an argument both before the court a quo
and this appeal court that what this matter really concerns is the illegal supply of
electricity to the hotel and the third respondent’s obligation to ensure that this does not
occur. The appellant, however, does not dispute that the hotel is not entitled to receive
electricity for free through illegal electrical connections, nor does he dispute that the
third respondent is entitled to conduct inspections to ascertain whether electricity is
being unlawfully acquired by the hotel. Rather, what this appeal does concern is the

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behaviour of the respondents when conducting the inspections that the third
respondent, on all versions, is entitled to carry out.

[4] The appellant alleges that in carrying out inspections of the hotel’s electricity
supply, the respondents behaved unlawfully and in a destructive and boorish fashion,
occasioning physical damage to the hotel and intimidating both his employees and his
patrons. The order sought by the appellant before the court a quo, in the form of a rule
nisi, was accordingly framed in the following terms:
‘2.1 THAT the Respondents or any other person acting through or under them are hereby
interdicted and restrained from threatening, insulting, intimidating , assaulting, or causing any
harm physical or otherwise of whatsoever nature to the Applicant or his staff, or patrons at the
Grosvenor Hotel, situated 1[...] S[...] Way, Durban, Kwa Zulu Natal.
2.2 THAT the Respondents or any other person acting through pr under them are hereby
interdicted and restrained from causing any damage or harm to the Grosvenor Hotel, situated
at 1[...] S[...] Way, Durban, Kwa Zulu Natal.
2.3 THAT the Respondents or any other person acting through or under them are hereby
interdicted and restrained from interfering with the operation of the Grosvenor Hotel situated
at 1[...] S[...] Way, Durban, Kwa Zulu Natal.
2.4 The Respondents are interdicted and restrained from entering the Grosvenor Hotel
without a court order/
2.5 The First and Second Respondents to pay the costs of suit on the attorney and client
scale, jointly and severally, the one paying the other to be absolved.
2.6 The Third Respondent is to pay costs in the event of it opposing the relief sought in
this application.’

[5] Mr Pillemer SC, who appears for the appellant , at the commencement of his
address to us, honed his argument down to a principal point, namely whether it had
been established before the court a quo t hat the appellant had a reasonable

been established before the court a quo t hat the appellant had a reasonable
apprehension of harm.1 If that point was answered in the affirmative, so it was
submitted by Mr Pillemer, the decision to refuse the confirmation of the interdict was
incorrect and the appeal, consequently, should be allowed. The converse argument
would obviously also apply: if there was no reasonable apprehension of harm , the

1 The requirements for the granting of a final interdict are well known: a clear right, an act of interference
or a reasonable apprehension of injury , and no other remedy : Setlogelo v Setlogelo 1914 AD 221 at
227.

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appeal must fail. Whether that requirement was properly established requires a
thorough consideration of the facts pleaded.
[6] Before doing so, it is appropriate to note that Mr Pillemer initially distanced
himself from the relief claimed in paragraph 2.4 of the order, referred to above, and
ultimately abandoned any reliance on the relief claimed in that paragraph.

The parties, ownership of the hotel and the dispute
[7] The first and second respondents are related to each other, the second
respondent being the nephew of the first respondent. The first respondent is now an
elderly gentleman and is apparently assisted in managing his business enterprises by
his nephew.

[8] One of those business enterprises is the hotel. The first respondent is its
owner but, in a transaction concluded in 2019, he let the hotel to the appellant (the
lease agreement) . Having taken occupation of the building through the lease
agreement, the appellant continues to operate it as a hotel. However, since concluding
the lease agreement, the appellant and the first respondent have fallen out with each
other and the consequence has been a flurry of litigation between them, some initiated
in the magistrates’ court and others in the high court. The principal dispute relates to
the alleged cancellation of the lease agreement by the first respondent , which is
claimed by the first respondent, but which is vigorously disputed by the appellant.

[9] Before considering the relief claimed by the appellant in the court a quo, it is
necessary to mention the facts that led up to the granting of the order.

The appellant’s version of events
The events of 20 October 2021
[10] While the events that led to the granting of the order on 27 January 2022 had
their direct origin in the events of 26 January 2022, events which I will consider shortly,
there was an earlier incident that was dealt with extensively in the appellant’s founding

there was an earlier incident that was dealt with extensively in the appellant’s founding
affidavit in the court a quo . This related to an incident that occurred approximately
three months earlier, on 20 October 2021.

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[11] I pause for a moment at this juncture to mention that t he first and second
respondents, who were represented by Mr Kissoon Singh SC and Mr Collingwood,
strongly urged us not to pay any heed to th is earlier event, arguing that the events of
20 October 2021 were a separate and distinct occurrence that had no bearing on the
events of 26 January 2022. I do not lose sight of this objection, and I shall consider its
validity later in this judgment, but I believe that it is at least necessary at this juncture
to mention what the appellant claims occurred on 20 October 2021 in order to form an
appreciation of the appellant’s case and how it is framed.

[12] On 20 October 2021, a cohort of approximately 30 people , referred to
hereafter as ‘ the first inspection team’, descended upon the hotel to perform an
unannounced inspection of the supply of electricity to it (the first inspection). The first
inspection was notionally initiated by the third respondent, but there is evidence in the
appeal record that the reason, and the impetus, for the first inspection had come from
the first respondent. On 3 May 2021, an internal email of the third respondent that
forms part of the appeal record revealed the allegation that:
‘Owner of 16 Soldier Way [Grosvenor Hotel] reporting of illegal connections and illegal wiring
in meter room, shops down stairs are also illegal connection.’

[13] Thus, it would appear that the urging for the first inspection emanated from
the first respondent. The first inspection team was made up of employees of the third
respondent, the first and second respondents, a s well as a contingent of uniformed
private security guards.

[14] The appellant alleges that the persons who conducted the first inspection
behaved in an appalling fashion. On being challenged by the hotel manager upon their
arrival at the hotel, the members of the first inspection team indicated that they had no

arrival at the hotel, the members of the first inspection team indicated that they had no
identification cards, nor did they have a job card authorising their ingress into the hotel
to enable them to check its electrical connections . A job card issued by the third
respondent is apparently a necessary prerequisite for such an inspection to occur.

[15] The appellant, who was not present at the hotel at the time of the first
inspection, was contacted telephonically by the hotel manager and advised of what
was transpiring. He instructed his manager that until identification was produced, the

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first inspection team was not to be permitted to access the hotel premises. Upon being
told this by the hotel manager, the first inspection team promptly ignored her request
that they leave the hotel premises and proceeded to enter the hotel.
[16] Apprised of this further development, the appellant contacted a manager at
the third respondent, Mr Anele Sithole (Mr Sithole) , and enquired whether what was
occurring at the hotel was an authorised inspection sanctioned by the third respondent.
Mr Sithole apparently informed the appellant that it was not an authorised inspection.
The inspection was, said Mr Sithole, ‘irregular’. He then called upon the appellant to
provide him with the names of the persons who were part of the first inspection group.

[17] The appellant conveyed Mr Sithole’s request to the hotel manager and
requested her to obtain the names of those involved. One of the inspectors, a Mr Andre
Roberts (Mr Roberts) , then became aggressive and began shouting at the hotel
manager. Mr Roberts proclaim ed loudly that the third respondent had the right to
inspect the hotel. The hotel manager’s cellular telephone was snatched from her hand,
and she was sworn at. When the person who took her cellular telephone was told that
the South African Police Service (SAPS) had been summoned to attend the hotel by
the hotel manager, the cellular telephone was handed back to her.

[18] The hotel apparently has its own security service provider. A single security
guard was on duty when the first inspection team arrived and, on his own, he was
powerless to prevent their entry into the hotel. The appellant consequently contacted
the central administration of the hotel’s security service provider and requested that
more security officials be sent to the hotel because of what was occurring there.

[19] The first inspection team then dispersed over the multiple floors of the hotel
and was accompanied when doing so by the second respondent. Some members of

and was accompanied when doing so by the second respondent. Some members of
the first inspection team entered the hotel bar unconventionally by breaking down the
door to the ladies’ toilet. Upon gaining entry to the newly refurbished bar, t he bar
counter was damaged by them, and they ripped cables out of the electrical distribution
board. A locked liquor cabinet was broken open, and some liquor was taken. Wiring
that connected to the cash desk was cut. All this was done in the presence of patrons
in the bar, of which there were estimated to be about 20. Every room on every floor of

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the hotel was entered by the first inspection team members. Where cables were found,
whether lawful or not, they were simply cut.

[20] The extra security summoned by the appellant then arrived at the hotel. The
person in charge of it was Mr Tofara Maredza (Mr Maredza). He managed to round up
most of the members of the first inspection team and confined them to the reception
area of the hotel. The second respondent objected to this and shouted that he was the
owner of the building (he is not) and proclaimed that he could ‘break down’ the building
if he wanted to and that no one would be able to stop him if he chose to do so.

[21] Mr Maredza subsequently compiled a detailed report of what occurred. In that
report, he stated that the single security guard had reported to him that there was:
‘… a riot onsite of people claiming to be from the E THEKWINI Municipality electrical
department and about another 30 unidentified people forcefully entered the building.’

[22] Mr Maredza stated further that upon his arrival at the hotel, he asked for the
person in charge of the first inspection team to show him her identity card. She
indicated that she had left it in her motor vehicle in order to prevent her from being
issued with a parking fine by the Metro Police. Two Metro Police members then arrived
at the hotel. Mr Maredza asked for, and was given , their names. The Metro Police
officers apparently authorised the continuation of the inspection . The first inspection
team accordingly continued cutting cables and ultimately left the hotel with all the
cables that they had cut.

[23] Mr Maredza noted that the second respondent was present and that he
proclaimed that he was the owner of the hotel and that he was:
‘… owed R1 300 000 by Grosvenor Hotel and he will do as he pleases.’

[24] Having cut all the cables that they could, the inspection team was surprised,
according to Mr Maredza , by the fact that there was still a supply of electricity to the

according to Mr Maredza , by the fact that there was still a supply of electricity to the
hotel. This, he explained, was because the hotel runs on solar power, a fact confirmed

8
by the appellant .2 The SAPS did later arrive , Mr Maredza explained , and they
recommended that the appellant lay a charge at a SAPS station. The entire inspection
took about two and a half hours in all and was a harrowing ordeal , according to the
appellant and his employees.

[25] The appellant theorised that the first inspection had been provoked and
orchestrated by the first and second respondents. His theory was that it was an attempt
by them to interfere with his running of the hotel because of the ongoing dispute over
the validity of the lease agreement.

[26] As a consequence of these events, the appellant brought an urgent application
before this court (the first application), interdicting the respondents from the conduct
just described and of which complaint was made. The first and second respondents
opposed th e first application which, at this juncture , for some unexplained reason,
remains unresolved.

[27] Significantly, given the later attitude adopted by the m, the first and second
respondents stated in their answering affidavit in the matter under appeal that:
‘… we have delivered answering affidavits.’
This was a reference to the fact that they had delivered answering affidavits in the first
application.

The events of 26 January 2022
[28] On 26 January 2022, another unannounced inspection occurred at the hotel,
again notionally at the behest of the third respondent (the second inspection).

[29] A second inspection team presented itself at the hotel on that day and
demanded access to it. Mr Roberts, who was present during the first inspection, was
again present , as were the first and second responde nts. Upon the arrival of the
second inspection team, the appellant, who, again, was not physically present at the

2 This is a disputed issue. While the respondents agree that there are solar panels on the roof of the
hotel, they allege that there are no storage batteries to retain the electricity generated by the solar

panels. Nothing turns on this and determining this dispute has no relevance to the appeal.

9
hotel, was now able to observe what was occurring there through cameras mounted
in the hotel that were linked to his cellular telephone handset.

[30] The hotel manager again requested that the second inspection team provide
her with their identification cards and proof that the second inspection was authorised
by the third respondent. According to the appellant, her request was ignored, and no
such identification or authorisation was presented. As a consequence, access to the
hotel was again denied by the hotel manager. The second inspection team then tried
to forcefully enter the hotel by attempting to break through a locked metal security
gate, but they were unable to do so. They then, according to the appellant, apparently
employed step ladders to scale the perimeter of the property to gain access through
the windows of the hotel.

[31] When he realised that the second inspection was underway, and apparently
fearing a repetition of what occurred during the first inspection, the appellant swiftly
contacted his attorney and advised her of the events unfolding at the hotel. His
attorney, in turn, immediately contacted the first respondent’s attorney telephonically
and, upon ending the telephone call , addressed an email to him recording what they
had just discussed. Referring to the first and second respondents, the appellant’s
attorney recorded in her email that:
‘Both your client and Mr Mano Singh are amongst those people, as has been captured by my
client’s camera footage. Not only did they try to break the gates, but they have used l adders
to gain access through windows. This is unacceptable behaviour.
My client is happy to facilitate access but the unknown persons have refused to provide any
identification or any notification of an alleged transgression by my client . My client will gladly
facilitate entry if some identification and reason for an inspection is produced.’

[32] The appellant’s attorney went on to state further that:

[32] The appellant’s attorney went on to state further that:
‘It is very suspicious that the Municipality is behaving in this manner. My client is powered by
solar power, as has been set out in detail in his interdict papers that was deposed to last year.
That said, my client has contacted the police, his security company and he has been advised
to refuse access, if there is no identification produced. Seeing as your client and mano (sic)
Singh are in the thick of this invasion on my client, perhaps you can get a message to them to
inform the said intruders to produce identification.’

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[33] The appellant again contacted the third respondent and enquired whether
what was occurring at the hotel was an authorised inspection. He was apparently
advised that the third respondent had no knowledge of the second inspection that was
underway.


The first and second respondents’ version of events
[34] The first and second respondents have adopted a curious approach to the first
inspection in their answering affidavits. They have declined to respond to the extensive
allegations made about those events by the appellant in his founding affidavit , other
than to tender a general denial . Their explanation for this is that the appellant is
allegedly attempting:
‘… quite unfairly and improperly, to utilise an earlier incident to justify the relief he claims in
this matter.’

[35] Thus, the first and second respondents decided that they should:
‘… specifically refrain, for reasons already set out, from dealing with each of the allegations in
the paragraphs under reply, reserving the right of the first respondent and myself to do so at
a later stage, in an appropriate forum, should the need to do so arise.’

[36] I cannot conceive of a more appropriate forum than the court a quo, or a more
clamant need to respond, more so when what occurred at the first inspection was
specifically raised and placed before th at court in some detail. The first and second
respondents, accordingly, did not respond to, or deal with, the allegations made by the
appellant in his founding affidavit regarding the first inspection . The y resolutely
adhered to their view that the events of 20 October 2021 and 26 January 2022 were
separate and distinct from each other and that it was their respectful submission:
‘… that the earlier incident should not be considered by this Honourable Court for the relief
claimed in this matter for reasons which are set out below.’

[37] As regards the second inspection, the first and second respondents, and the

[37] As regards the second inspection, the first and second respondents, and the
third respondent for that matter, deny that their conduct on that day entitles the
appellant to any relief. They appear to deny that they entered the hotel as alleged by
the appellant but contend that they entere d an electricity meter room that is common

11
to the hotel and other independent, commercial enterprises situated on the ground
floor of the hotel. This they achieved by allegedly going through a fast food outlet
known as ‘Honchos Fast Foods’ (Honchos). An affidavit from a shop owner of another
shop c alled ‘Cell Shop’ confirms that he observed this. There was, however, no
affidavit from the proprietor of Honchos stating that this is what occurred.

The third respondent’s version
[38] The third respondent highlights the scourge of electricity theft and its economic
consequences in its answering affidavit. The deponent, a Mr Zola Shabalala (Mr
Shabalala), confirmed that an internal job card is a prerequisite for an inspection
occurring.

[39] Several i nspections, other than the two inspections in October 2021 and
January 2022, apparently also occurred in May 2021, and illegal electrical connections
were discovered and removed. Mr Shabalala submitted, through a report prepared by
a firm of consulting engineers, that the illegal connections were linked to the hotel.

[40] An affidavit was also delivered by Mr Roberts. He confirmed that he had
participated in the inspections conducted at the hotel in May 2021 and that he found
illegal electrical connections at that time . He also narrated his involvement in the
inspections conducted in October 2021 and January 2022. He claimed to have
exhibited his identity card and job card when commencing the inspection s on 20
October 2021 and on 26 January 2022 respectively. He further claimed that during the
course of both of those inspections, he discovered illegal electrical connections
running from the electrical meter room to the hotel.

The judgment under appeal
[41] Masipa J heard the opposed application on 14 February 2023 and discharged
the order in a written judgment delivered on 3 July 2023.

[42] In her judgment, the learned judge, after summarising the events of the first
inspection, stated that:3

3 Paragraph 16 of the judgment of the court a quo.

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‘The first and second respondents aver that the applicant’s application is an abuse of process.
This is because they aver that the applicant is using an earlier incident which occurred during
October 2021 to justify the relief he seeks for an incident which occurred on 26 October 2022
and that the application should be dismissed with costs.’

[43] This is, obviously, not accurate: there was no incident on 26 October 2022. The
first inspection occurred on 20 October 2021, and the second inspection occurred on
26 January 2022.

[44] There was a further obvious error in the judgment. The learned judge stated in
her judgment that:
‘I am of the view that the applicant has established a clear right which deserves protection,
and which has been infringed by the respondents.’

[45] This was not what was intended to be said. The opposite was intended ,
because in her judgment in the appellant’s application for leave to appeal, delivered
six months later on 16 January 2024, the sentence narrated above was varied to read:
‘has not established a clear right’ (my emphasis).

[46] Masipa J made the following observation regarding the true nature of the case
in her judgment:
‘While the applicant suggests that his employees have been intimidated by the respondents
and the crowd in the respondents’ company, the case appears to be more about the illegal
connection and the respondents accessing the premises to remove these.’

[47] The court a quo also found that there were fundamental disputes of fact on
the papers and concluded that:
‘The version of the applicant is untenable and far fetched (sic) to be accepted as true.’

[48] Finally, the court a quo found that there was an alternative remedy available
to the appellant , namely the Protection from Harassment Act 17 of 2011 (the Act).
Because of the existence of this remedy, the court a quo found that there was no need
for the appellant to have approached the high court for relief. A final interdict could not,
therefore, be granted.

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Analysis
[49] In my view, the first and second respondents adopted a potentially dangerous
strategy by declining to deal with the events relating to the first inspection. Their reason
for doing so appears to be based upon the notion of relevance: they did not regard the
events of 20 October 2021 as being relevant to the events of 26 January 2022.

[50] It is the function of the court, not the parties, to determine what is relevant and
what is not. In determining whether information sought to be adduced in a dispute is
sufficiently relevant, a court is required to apply a:4
‘… blend of logic and experience lying outside the law. The law starts with this practical or
common sense relevancy and then adds material to it or, more commonly, excludes material
from it, the resultant being what is legally relevant and therefore admissible.’

[51] The parties may, and indeed must, make submissions on relevancy, but the
court determines what is relevant . For a party to reserve the right to determine
relevance for itself is to run the risk that the position adopted by the party is not
consonant with the court’s view of relevancy. The first and second respondents’
counsel indicated before us that there was no need for the first and second
respondents to deal with these allegations as they formed part of the earlier opposed
motion dealing with the first inspection, which was still pending before this court.

[52] I do not share that view. In my view, the appellant was entitled to structure his
application as he saw fit. It is true that in doing so , he mentioned the events of 20
October 2021 extensively. The first and second respondents, on their own version,
had provided their explanation of what had occurred on that date when the y
acknowledged having submitted answering affidavits in the first application . Their
version was, at the very least, known to the appellant, if not to th e court a quo and,
subsequently, to this appeal court. The first and second respondents could, in the

subsequently, to this appeal court. The first and second respondents could, in the
circumstances, easily have summarised the submissions that they had made in the
first application or could even have attached a copy of the answering affidavit to their
answering affidavits in t he second application. They did not do so. The allegations

4 R v Matthews and Others 1960 (1) SA 752 (A) at 758A-B.

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regarding the first inspection , and the specific allegations regarding their conduct ,
consequently, have not been meaningfully dealt with by the first and second
respondents in the matter under appeal and must be approached with that realisation.

[53] In coming to her decision, the learned judge recognised that the appellant relied
heavily on the events relating to the first inspection to make his case for relief arising
out of the second inspection. Indeed, she also mentioned the events relating to the
first inspection extensively in her judgment. The learned judge, however, found that in
meeting the case made out by the appellant, it was reasonable for the first and second
respondents not to deal with any of the allegations relating to th e first inspection
because they formed the subject matter of the first application . She accordingly
concluded that no reliance should be placed on the facts relating to the first inspection.
That, with respect, is not a view that I share, and I fear that the court erred on this
point.

[54] The facts pertaining to the first inspection were the very foundation of the
appellant’s belief relating to the second inspection , the relief that he sought and the
apprehension that he claimed to experience. The word ‘ apprehension’ has three
possible meanings. Only two relate to the issues in this matter and need to be
considered. The word can mean both the awareness and understanding of an event,
and it can also mean a perception or a feeling of fear that something bad may happen.5
The source of that apprehension must, of necessity, come into th e equation when
determining whether an alleged apprehension existed and, if it did, whether it was well-
founded and reasonable. An apprehension does not exist in the ether , untethered to,
inter alia, the occurrence of events.

[55] The appellant’s case was that there was a link between the two inspections.
Without explaining why there was no such link, and without specifically dealing with

Without explaining why there was no such link, and without specifically dealing with
the detailed allegations made by the appellant, the first and second respondents
simply declined to deal with those allegations that they claimed were not relevant to
the appellant’s case. Allegations made in affidavits must be answered and if they are

5 ‘Editors of Collins Dictionary ‘Apprehension’ collinsdictionary.com
https://www.collinsdictionary.com/dictionary/english/apprehension (accessed on 15 September 2025).

15
said to be worthless and of no direct significance, that must be stated and explained.
If the allegations made are not dealt with, they are deemed to be admitted. As the
appellant stated in his replying affidavit, the first and second respondents declined to
deal with the allegations relating to the first inspection at their own peril.
[56] It seems to me that there was a connection between the two inspections. They
were both conducted ostensibly by the third respondent and they both involved the
first and second respondents . Both inspections , notionally at least, had the same
objective. Both inspections were said by the management of the third respondent to
be unauthorised. In my view, there was a clear link between the two inspections, and
they evidenced a continuing pattern of conduct.

[57] It is so that an interdict is intended to regulate future, and not past, conduct. It
follows that the conduct complained of must be ongoing. 6 However, a past
infringement of a right may constitute evidence upon which a court may conclude that
the intention to continue with the same type of behaviour has been established . In
Stauffer Chemicals Chemical Products Division of Chesebrough -Ponds (Pty) Ltd v
Monsanto Company,7 Harms J stated that:
‘… the basis of an interdict is the threat, actual or implied, on the part of a defendant that he
is about to do an act which is in violation of the plaintiff's right and that actual infringement is
merely evidence upon which the Court implies an intention to continue in the same course.’

[58] In Sex Worker Education and Advocacy Task Force v Minister of Safety and
Security and Others,8 Fourie J followed the line of reasoning adopted by Harms J when
he stated that:
‘As I have previously mentioned, proof of a past infringement of rights may constitute evidence
upon which a court may imply an intention to continue in the same course.’

[59] As the first and second respondents did not properly address the allegations

[59] As the first and second respondents did not properly address the allegations
relating to the first inspection, it must be accepted that the appellant established the
earlier infringement of his rights. Given the fact of the occurrence of two inspections

6 Maeder v Perm-Us (Proprietary) Ltd 1939 CPD 208 at 213; Philip Morris Inc and Another v Marlboro
Shirt Co SA Ltd and Another 1991 (2) SA 720 (A) at 735B.
7 Stauffer Chemicals Chemical Products Division of Chesebrough -Ponds (Pty) Ltd v Monsanto
Company 1988 (1) SA 805 (T) at 809E-F.
8 Sex Worker Education and Advocacy Task Force v Minister of Safety and Security and Others 2009
(6) SA 513 (WCC) para 50. See also Phaleng-Podile v Dovey [2022] ZAGPJHC 656 para 46.

16
and the accepted fact that the third respondent is obliged to root out the unlawful
supply of electricity to buildings, it is entirely probable that the third respondent will
conduct further unannounced inspections of the hotel. Although predating Harms J’s
judgment, the following was held in Francis v Roberts:9
‘The injury with which this case is concerned is not the sort of injury which can be described
as an injury which “has occurred once and for all”. It is the type of injury which is quite capable
of repeating itself time and again. The defendant also has not, even today, given an
unequivocal undertaking that she will refrain from allowing the infringement to occur again.
Furthermore, from the manner in which the defendant has defied the plaintiff's rights in the
past, it cannot be said with any confidence th at the plaintiff's fears that she will infringe his
rights again are groundless. I do not think that this is a case where there is any obligation on
the plaintiff to show, on a balance of probabilities, that if he is not granted an interdict the
defendant will again infringe his rights. Moreover, I draw attention to the fact that proof by a
plaintiff that the injury will again occur if an interdict is not granted, is not one of the
essential requisites for the granting of an interdict laid down in Setlogelo's case, supra, and
even if it might be a requirement in a certain class of case, this case is certainly not one of
them.’
That approach applies to the circumstances of this matter.

[60] It furthermore seems to me, in the particular circumstances of this matter, to be
perfectly proper for the appellant to draw the court’s attention to the conduct that he
complained of in both inspections and to suggest that there was a likelihood of a
repetition of such conduct , should further inspections occur. If the first and second
respondents disagreed with this proposition and disagreed with the description of their

respondents disagreed with this proposition and disagreed with the description of their
conduct during the first inspection, they were required to explain why that was the
case. They chose not to do so. It must therefore be accepted, and it should have been
accepted by the court a quo, that there was unacceptable conduct during the first
inspection. I am accordingly of the view that the occurrence s of the two inspections
are not separate, discrete events that ought to be viewed in isolation from each other.
The approach of the court a quo on this issue was accordingly incorrect in my view.

[61] Masipa J further observed in her judgment that whilst the appellant made the
case that his employees had been intimidated by the respondents, what the case was

9 Francis v Roberts 1973 (1) SA 507 (RA) at 513B-E.

17
really about was the illegal supply of electricity to the hotel and the respondents
accessing the hotel to prohibit this from occurring. With the greatest of respect, that is
precisely what the matter was not about. There was no counter application by the
respondents and thus the issues were the claim s by the appellant and the
respondents’ rebuttal of his claims.

[62] In this regard, t he first point to be made is that the first and second
respondents have no right themselves to access the hotel without the appellant’s
permission to do so. They correspondingly have no right to insist on being present
when inspections are conducted . They do not possess whatever rights the third
respondent possesses that permits it to gain access to premises for the purpose of
inspections. The first and second respondents’ involvement in the two inspections was
explained by the third respondent on the basis that their presence was potentially
necessary in order to secure access to the hotel. That appears to me to be a contrived
explanation for them being present at both inspections. A lessor has no inherent right
to access his property against the wishes of a lessee in occupation of that property.10
If the lessor does so, he trespasses and a lessee in such circumstances is entitled to
protect his rights by way of an interdict.11

[63] The second point to be made is that the appellant never suggested that
inspections should not occur. I llegal connections to the electricity supply grid are
forbidden by law and the appellant concedes that the third respondent is entitled to
conduct inspections to determine whether this is occurring. Indeed, as the email
written by the appellant’s attorney on the day of the second inspection demonstrated,
the appellant was quite prepared to allow the second inspection to occur o nce
sufficient identity and authorisation was provided.

[64] Therefore, what the matter was truly about was the way that inspections are

[64] Therefore, what the matter was truly about was the way that inspections are
conducted and the need for there to be civility and lawful conduct by those carrying
them out. The court a quo, accordingly, misdirected itself in construing what the issues
were.


10 Soffiantini v Mould 1956 (4) SA 150 (E) (Soffiantini) at 153E.
11 Ibid at 153F.

18
[65] The court a quo further found that there were disputes of fact not capable of
being resolved on the papers. It is so that there is a dispute over whether illegal
electrical connections were found in the hotel. Following the approach prescribed in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd ,12 I must accept the third
respondent’s version that illegal electrical connections were found in the electricity
meter room. Expert reports were put up by the third respondent claiming this to be the
case, but whether there was an unlawful supply of electricity to the hotel was not the
issue that the court a quo was called upon to determine. Thus, even if it is accepted
that there were unlawful electrical connections found in the electricity meter room, that
did not give the respondents the right to act as they did. The relief claimed in the
appellant’s notice of motion directed the court a quo’s attention to the issues before it.
What was required to be determined, simply put, was the conduct of the respondents
in carrying out their inspection.

[66] As was stated in Soffiantini:13
‘It is necessary to make a robust, common -sense approach to a dispute on motion as
otherwise the effective functioning of the Court can be hamstrung and circumvented by the
most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on
affidavit merely because it may be difficult to do so. Justice can be defeated or seriously
impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.’

[67] The court a quo found that the appellant’s version of events was untenable
and far-fetched. I cannot agree with this finding. In my view, there was nothing
untenable in the version of events explained by the appellant regarding both
inspections. As to what happened during the first inspection, the allegations made by
the appellant were not directly and specifically addressed by the first and second

the appellant were not directly and specifically addressed by the first and second
respondents and therefore ought to have been accepted by the court . Moreover, any
doubts that the court a quo had about those events should have been assuaged by
the report of Mr Maredza, which was detailed and explained exactly what had
occurred. The infliction of damage to property within the hotel during the first inspection
was established by photographs attached to the founding affidavit. That there was
uncouth and unnecessary conduct was also established through the unchallenged

12 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
13 Soffiantini at 154G-H.

19
evidence of the appellant and other persons there present in supporting affidavits. And
I can find nothing far -fetched in the telling of the events relating to the second
inspection.

[68] Finally, the court a quo found that there was an alternative remedy available
to the appellant which he had not considered or explored. That was the Act. Even a
cursory reading of th e Act reveals that it is not applicable to the facts of this case. 14
This was, therefore, not an alternative remedy available to the appellant and this
finding was not supported by counsel for the first and second respondents during
argument before us.

Conclusion
[69] The requirements for a final interdict are well known and were stated at the
beginning of this judgment. I am of the view that the appellant established a clear right
and a course of ongoing, unacceptable conduct on the part of the persons who formed
part of the third respondent’s inspection teams, including the first and second
respondents. Everyone has the right not to be threatened, insulted, or intimidated. 15 I
would have thought that this was self -evident. Citizens are entitled to be treated with
respect, and they are entitled to protect the integrity of the property that they possess.
That is all that the relief claimed by the appellant sought to confirm. For too long in the
past, many of our citizens were treated disrespectfully, especially by the authorities.
Those days should now be behind us. In my view, the appellant had a clear right to
the relief that he claimed.


14 The Act defines harassment in s 1 as meaning:
‘Directly or indirectly engaging in conduct that the respondent knows or ought to know-
(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a
related person by unreasonably-
(i) following, watching, pursuing or accosting of the complainant or a related person, or
loitering outside of or near the building or place where the complainant or a related person

loitering outside of or near the building or place where the complainant or a related person
resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a
related person, by any means, whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles,
electronic mail or other objects to the complainant or a related person or leaving them
where they will be found by, given to, or brought to the attention of, the comp lainant or a
related person; or
(b) amounts to sexual harassment of the complainant or a related person.’
15 Gupta and Others v Malema and Others [2016] ZAGPPHC 64 para 14; Korkie and Others v Ismail
and Others [2018] ZAECPEHC 37 para 27.

20
[70] I also conclude that the appellant established a reasonable apprehension of
injury. A reasonable apprehension of injury is one that a reasonable person might
entertain on being faced with certain facts. 16 An applicant seeking a final interdict,
however, does not have to establish that the injury contemplated will definitely occur.
All that need be established is that it is reasonable to apprehend that injury will result.
In my view, the appellant established that.

[71] As there was no alternative remedy available to the appellant, I am therefore
of the view that the appeal should be upheld and that the court a quo erred in declining
to confirm the rule nisi. However, as mentioned earlier, the relief sought in paragraph
2.4 of the order sought by the appellant was abandoned before us by Mr Pillemer.
That shall be reflected in the order that I now propose.

Costs
[72] I can conceive of no reason to depart fr om the principle that the successful
party should have his costs. Something, however, needs to be said about the scale of
the costs to be awarded. The proceedings before Masipa J were concluded before the
introduction of Uniform rule 67A and that rule is of no application to proceedings before
the Supreme Court of Appeal. However, by the time that the appeal came before us,
rule 67A was in place. In my view, the costs of the appeal should therefore include the
costs of senior counsel where so employed and sh ould be permitted to be taxed on
scale C.

Order
[73] I accordingly propose the following order:
1. The appeal is upheld and the judgment of Masipa J, delivered on 3 July 2023,
is set aside and is replaced with the following order:
‘The rule nisi issued on 27 January 2022, save for the relief claimed in paragraph 2.4,
is confirmed against the first, second and third respondents.’
2. The respondents shall pay the appellant’s costs, jointly and severally, the one
paying, the other to be absolved, in respect of:

paying, the other to be absolved, in respect of:

16 Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd and Another 1961
(2) SA 505 (W) at 518A.

21
(a) The proceedings before Masipa J;
(b) The application to the Supreme Court of Appeal for leave to appeal; and
(c) On appeal, with the costs on appeal to include the costs of senior counsel,
where so employed, and which costs may be taxed on scale C.




_____________________________

MOSSOP J



I agree:



_____________________________

P BEZUIDENHOUT J



I agree:



_____________________________

MNGADI J

22
APPEARANCES


Counsel for the appellant: Mr M Pillemer SC

Instructed by: Shamla Pather Attorneys Incorporated
2nd Floor, Suite 202
Richefond Circle
Ridgeside Office Park
Umhlanga Rocks

Counsel for the first and second Mr A K Kissoon Singh SC with Mr A
respondents: Collingwood

Instructed by: Harkoo Brijlal and Reddy Incorporated
155 Mathews Meyiwa Road
Durban

Counsel for the third respondent: Mr J P Broster

Instructed by: Linda Mazibuko and Associates
231 Mathews Meyiwa Road
Durban