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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 594/03
Reportable
In the matter between
MACCSAND CC Appellant
and
MACASSAR LAND CLAIMS COMMITTEE First Respondent
UNICITY OF CAPE TOWN Second Respondent
THE NATIONAL HOUSING BOARD Third Respondent
THE DEPARTMENT OF LAND AFFAIRS Fourth Respondent
THE COMMISSION ON THE RESTITUTION
OF LAND RIGHTS Fifth Respondent
THE MINISTER OF ENVIRONMENTAL
AFFAIRS AND PLANNING Sixth Respondent
DEPARTMENT OF MINERAL
& ENERGY AFFAIRS Seventh Respondent
REGISTRAR OF DEEDS Eighth Respondent
THE SURVEYOR-GENERAL Ninth Respondent
CORAM: Farlam, Cameron, Mthiyane JJA, Jafta, Patel AJJA
HEARD: 16 November 2004
DELIVERED: 30 November 2004
Summary: Applicant applied for leave to appeal against an interim interdict-
interim interdict appealable – an order is in effect final and appealable if of
immediate effect and not to be reconsidered at the trial or on the same facts-
applicant found not to be in contempt of interim interdict – interdict varied-costs
award at grant of interdict generally not appropriate.
JUDGMENT
_____________________________________________________________________
PATEL AJA
2
PATEL AJA
[1] This is an application for leave to appeal in which the parties were
directed to argue the merits of the matter. The applicant, Maccsand CC
(‘Maccsand’), is a close corporation engaged in sand mining on Erf 1197,
Macassar, Cape Town. The Respond ent, Macassar Lands Claims
Committee (‘the Committee’), representing certain residents of Macassar,
brought a claim in the Land Cl aims Court (‘the LCC’) claiming
restoration of Erf 1197 on the basi s of unregistered commonage rights
previously held by the owners of Lots 35 to 63 situate adjacent to Erf
1197.
[2] Pending the finalization of its la nd rights claim, Moloto J in the
LCC granted an interdict to the Committee preventing Maccsand from
continuing with its sand mining opera tion on Erf 1197. Moloto J, after
the grant of the interdict, and on further application by the Committee,
held Maccsand to be in contempt of the interdict. Ma ccsand was granted
leave to appeal to this court against the contempt finding. The learned
judge however refused Maccsand leave to appeal against the interim
interdict. A later application brought by Maccsand for the variation of the
interdict was also refused. Maccsand thereupo n brought an application
for leave to appeal to this court against this refusal. The Committee
opposed the application for leave to appeal on the essential ground that
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the interim interdict granted by Moloto J was not appealable. In terms of
s 21(3)(c)(ii) of the Supreme Co urt Act 59 of 1959 the judges who
considered the application for leave to appeal referred the application to
the full court for argument and consider ation. They also ordered that the
merits of the proposed appeal and the appeal against the contempt finding
and the application for the varia tion of the interdict be heard
simultaneously.
[3] Moloto J on 28 Augus t 2003 granted the follow ing orders relevant
to this appeal:
‘3. Pending the finalisation of the claim for restitution of erf 1197 Macassar to
the applicant, that an interim interdict be issued against:
(a) Maccsand, the first applicant (should read first respondent), from
continuing to mine sand from erf 1197, Macassar;
(b) That the first and second respondents, be interdicted from attempting to
rezone, rezoning or considering any land use change application or
development of erf 1197, Macassar, except with the approval and consent
of applicant.
7. Costs of suit against first, third and fourth respondents in respect of the
interdict sought.’
[4] Before I proceed to deal with th e issues, I will, in brief sketch the
background to the dispute. There are several dis putes of fact and law on
the papers. These need not be resolved at this stage however in order to
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determine whether the order is appealable and if it is, whether the
interdict should be discharged or modi fied. Nor do I propose to consider
whether the mining operations conducted by Maccsand, in the face of the
grant to it of a mini ng licence, are illegal fo r non compliance of other
statutes. In any event the learned judge in the court a quo granted the
interdict without consider ing the legality or not of Maccsand’s mining
operations.
[5] Maccsand was granted permission to mine Erf 1197 in accordance
with a licence issued in terms of s 9( 1) read with s 9(3)(e) of the Minerals
Act, 50 of 1991. The licence to mi ne is valid until January 2005.
Maccsand has an option to extend th e licence for another 6 years.
Maccsand purported to exercise the op tion but the decision has been put
in abeyance partly because of this litigation and also because of the
apparent conflict that exists in respect of the applicable national and
provincial laws.
[6] Erf 1197 is 54,224 hectares in extent and contains substantial
deposits of sand. For purposes of mi ning development it is divided into
13 strips marked A to M as indicated in the general site layout plan. At
the time of the grant of the interd ict, strip A had been mined to
completion and Maccsand was in the process of mining strip B and had
5
already prepared strip C for mining. Maccsand contends that it had
already rehabilitated strip A in accordance with the approved
‘environmental management programme’ (EMP). The very existence of
an EMP and the effective rehabilita tion of strip A is disputed by the
Committee. The failure by Maccsand to annex the EMP to its answering
affidavit in the interdict procee dings strengthened the Committee’s
contention that Maccsand was mini ng illegally. This was one of the
factors that persuaded the learned judge to grant the interdict.
[7] A subsequent application to va ry the interdict on production of the
EMP met no success. On the papers I am of the view that an EMP existed
at the time the application was br ought. The explanation proffered by
Maccsand as to why the EMP was not included in the answering affidavit
appears to be reasonable.
Is the interim interdict appealable?
[8] Prior to its amendment by s 7 of the Appeals Amendment Act
1982, s 20(2)(b) of the Supreme Cour t Act 1959 (‘the Act’) provided that
an appeal could be brought against an interlocutory orde r with leave of
the court granting it. A court’s decision whether to grant leave or not was
premised on the distinction between ‘s imple’ interlocutory orders, which
6
were appealable with leave, and inte rlocutory orders which had a final
and definitive effect on the main ac tion which were appealable without
leave (see South Cape Corporation (Pty) Ltd v Engineering Management
Services (Pty) Ltd 1977 (3) SA 534 (A) at 549 F-H). Section 20(1) of the
amended Act creates a right of appeal from a ‘judgment or order’ only.
This court in Zweni v Minister of Law and Order 1993 (1) SA 523 (A)
531H-536B did a ‘brief exposition and a critical review of some of the
general propositions commonly (and some times loosely) ad vanced in the
decided cases’ relevant to the meani ng of the ‘judgment or order’ before
holding that these words meant a judg ment or order which was final in
effect. It would be jejune to repeat su ch an analysis. An interim interdict
has in general been held not to be appealable because it is not final in
effect and is susceptible to alteration by the court of first instance (see
Cronshaw and Another v Coin Security Group (Pty) Ltd 1996 (3) SA 686
(A)).
[9] In Metlika Trading Limited and Others v The Commissioner for the
South African Revenue Service (unreported judgme nt in case number
438/03 delivered on 1 October 2004) this court once again had to
pronounce on the appealability of an inte rim interdict. The Pretoria High
Court had, pending the finalisation of claims for unpaid taxes brought by
the Commissioner for the South African Revenue, ordered the return of a
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Falcon aircraft to South Africa. Streic her JA referring to the decisions in
Cronshaw (supra) and African Wanderers Football Club (Pty) Ltd v
Wanderers Football Club 1977 (2) SA 38 (A) noted (paras 19 to 21) that
the issues in the interdict proceedings in those cases were the same as the
issues that were to be decided at the trial. These matters were
accordingly distinguishable because whet her or not the aircraft should be
returned and whether or not the ancillary orders should be granted were
not issues which would arise in th e action pending whic h the interdict
was granted (para 22).
[10] The court held (par a 22) that the test in Pretoria Garrison Institutes
v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A ) at 870 (which
was applied in Cronshaw ( supra) 690F) was wholly inappropriate to
determine whether the order grante d was final in effect and thus
appealable. The court proceeded to hold further (para 24) that:
‘the order that steps be taken to procure the return of the aircraft to South
Africa, as well as the other orders rela ting to the aircraft , were intended to
have immediate effect, they will not be reconsidered at the trial and will not be
reconsidered on the same facts by the court a quo. For these reasons they are
in effect final orders. Some support for this conclusion is to be found in
Phillips and Others v National Director of Public Prosecutions 2003 (6) SA
447 (SCA) at par (17)-(22) in which it wa s held that a restraint order in terms
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of the Prevention of Organised Crime Act 121 of 1998 which was considered
to be analogous to an interim interdict for attachment of property pending
litigation, was final in the sense required by the case law for appealability’.
[11] Counsel for Maccsand submitted that as in Metlika the main
proceedings are distinct from the inte rdict against its mining operations.
The main claim for the restitution of the commonage is based on the
provisions of s 2 of the Restitution Act. The LCC at the finalisation of the
claim could in terms of s 35 of the Restitution Act order the restoration of
land or any right in land. In the alternative it could order the State to grant
an appropriate right in alternative state-owned land or order the payment
of compensation. Thus in bringing the application for an interim interdict
against the mining operations, the Comm ittee was granted relief that was
separate from that claimed in the main proceedings. The interdict cannot
be regarded as a mere step in the main proceedings.
[12] It is settled law that in de termining whether a decision is
appealable ‘not merely the form of the order must be considered but also,
and predominantly, its effect’ ( South African Motor I ndustry Employers’
Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A) at
96H, Zweni at 532I and Metlika at para 23). Maccsand’s right to mine
exists for a limited period. The Land Claims Commiss ion, despite the
passage of a considerable length of time, has not, because of the
9
complexity of the matter and the e xpense involved, commenced with the
verification of the claim. It wa s perhaps for this reason that the
Committee decided to approach th e LCC directly. Counsel for the
Committee conceded in argu ment that to date th e necessary research to
verify the claim had not even commenced because of a shortage of funds.
The conclusion is inevitable in that because of the interdict Maccsand
will be unable to invoke its right to mine for a substantial period of time,
if at all, since if the delays that have occurred till now are an indicator, its
right to mine may be lost forever. Accordingly as far as Maccsand is
concerned the interim interdict is fi nal in effect. The interim order
granted by the court a quo is therefore in my view appealable.
[13] I turn now to the costs orde r made by the learned judge. Costs
orders are, in the absence of exce ptional circumstances, not generally
made in interlocutory interdict proceedings since the court finally hearing
the matter is in a better position, af ter hearing all the evidence, to
determine whether or not the a pplication is well founded (see EMS
Belting Co of SA (Pty) Ltd and Others v Lloyd and Another 1983 (1) SA
641 (E) 644H, confirmed in Airoadexpress (Pty) Lt d v Chairman, Local
Road Transportation Board, Durban, and Others 1986 (2) SA 663 (A) at
683A).
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[14] Moloto J has not placed any exceptional circumstances on record
to deviate from the established appro ach. In my view a costs order would
be unjust and without warrant since it may subsequently be shown that
the claimants represented by the Committee do not show any entitlement
to Erf 1197. The costs order should have been properly reserved for
determination at the hearing of the claim.
Did the Committee establish a proper case for the interdict sought?
[15] An interim interdict is a te mporary and exceptional remedy which
is available before the rights of the parties are fully determined. It should
therefore be granted with caution and only if a proper case is made out
(see Memory Institute SA CC t/a SA Memory Institute v Hansen and
Others 2004 (2) SA 630 (SCA) at para 10). The court granting this
discretionary relief must properly place on the judicial scale all the legal
requirements of an interdict. These well known requirements are :
(a) a prima facie right though open to doubt;
(b) a well-grounded apprehension of irreparable harm if the relief is
not granted;
(c) that the balance of convenien ce favours the granting of an
interim interdict;
(d) that the applicant has no other satisfactory remedy.
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[16] The Committee sought interim relie f first on the basis of its claim
for restitution of Erf 1197 in terms of the Restitution Act and secondly its
interest in preventing the environm ental degradation caused by the sand
mining in terms of s 24(b) of the Constitution. The latter was not properly
argued before us and any event its proper ventilation is unnecessary at
this stage in light of the conclusion to which I come.
[17] The voluminous papers before us indicate that the commonage
right claimed by the Committee is prim a facie established though open to
doubt. (Perhaps it is for this reason that the Land Claims Commission had
to tender out the research on the claimed right. The Committee’s counsel
also informed the court that the Lega l Aid Board has been approached to
fund such research). In any event th e strength of the Committee’s right is
a matter that the LCC will eventually determine. Suffice it to say that
Maccsand has succeeded in casting some doubt on the status, the
antecedents and the claims of the Committee. It has been established by
the Committee that althou gh there appears to be some doubt, at least at
this stage, the doubt is not serious. Further it cannot be gainsaid on the
papers that if the ri ght to restitution of the commonage rights is
established eventually the Committee wi ll suffer irrepara ble harm unless
the LCC grants the Committee a remedy other than restitution.
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[18] It is on the fulfilment of the requirement of the balance of
convenience that the learned judge mi sdirected himself. The balance of
convenience is often the decisive fact or in an application for an interim
interdict. The exercise of the discre tion vested in the court, where the
other requirements for an interdict ar e fulfilled, must turn on the balance
of convenience. Moloto J’s finding on the papers that some of the owners
of Lots 35 to 63 had a registered right of commonage is legally and
factually untenable. If indeed their rights were so registered a restitution
claim would be unnecessary. The answ ering affidavit filed on behalf of
Maccsand places in doubt the rights of the claimants represented by the
Committee. This doubt appears to be in no small measure. The nature of
the balance of convenience required in such a case was well summed up
by Holmes J in Olympic Passenger Servic e (Pty) Ltd v Ramlagan 1957
(2) SA 382 (N) at 383F:
‘In such cases, 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 exer cised 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
13
convenience to favour him. I need hardly add that by balance of convenience
is meant the prejudice to the applicant if the interdict be refused, weighed
against the prejudice to the respondent if it be granted.’
[19] It is incontestable that the financial consequences for Maccsand are
dire if the interdict in it s present form is allowed to continue. This aspect
has been fully ventilated in the affi davits filed on be half of Maccsand.
The prospect of the restitution clai m being resolved in favour of the
Committee in the near future is uncertain. The Committee to date has not
proceeded with the trial in the LCC.
[20] Maccsand had on obtaining the EMP applied for a limited variation
of the interdict to permit it from c ontinuing to mine sand on Erf pending
the finalisation of the claim for res titution. The variation sought was in
respect of a limited portion of Erf 1197 and was to substitute prayer 3(a)
of the order granted by Moloto J with an order which allowed the
applicant to continue mining sand on the area identified as strips B to C
on the general site layout plan on c ondition that the sum of R120 000 be
set aside in a trust fund established in terms of the Minerals Act for
purposes of rehabilitating strips B and C on completion of mining on each
respective strip and on c ondition that the rehabilita tion is in compliance
with the approved EMP for Erf 1197 and done to the satisfaction of
Department of Mineral and Energy. This variation would in effect permit
14
the applicant to mine approxim ately 22% of Erf 1197 pending the
finalisation of the restitution claim.
[21] In terms of the order granted by this court the variation application
was also referred to or al argument. This cour t has the power to grant
such a variation in order to ensure that the interim interdict granted
satisfies the requirements of the balanc e of convenience. I believe that
the variation order sought is appropri ate in the circumstances. Counsel
for Maccsand properly submitted that Maccsand should be given leave to
approach the LCC in th e event the Committee s hould adopt a “we do
nothing” position. Otherwise Maccsand would be prejudiced if after the
mining of strip B and C is complete , the Committee has not proceeded to
trial with the restitution cl aim. I am of the view that this concern must
be accommodated and a suitable order made.
Was Maccsand in contempt of the order granted by the LCC?
[22] On the 26 September 2003 the learned judge acting in terms of s
22(2)(a) of the Restitution Act found M accsand to be in contempt of the
interdict granted by him on 28 August 2 003. The court further ruled that
the notice of appeal filed by Maccsand was null and void ab initio. No
leave to appeal was sought against this particular ruling in the court a quo
15
nor did Maccsand seek leave of this c ourt to appeal against such finding.
That ruling of nullity accordingly stan ds. Although this is so it is
necessary to pass judgment on this ru ling in order to determine whether
the finding of contempt can stand.
[23] Contempt orders are not for the asking. Such an order should only
issue after the court is satisfied that there has been a wilful and mala fide
refusal to comply with an order of the court. Although the procedural
requirement of having a notice of mo tion and a sworn affidavit in support
of the application is not a sine qua non to the finding of contempt by a
court of law, a viva voce procedure should be resorted to only in
exceptional circumstances where even a short delay would precipitate
irreparable harm foreshadowed in the order granted.
[24] There is no record of the cont empt hearing since in terms of the
LCC rules the learned judge arrived at his conclusion after a telephonic
conference between the legal repr esentatives of Maccsand and the
Committee. This court is accordingl y at a disadvantage since the learned
judge has not set out any basis to support the conclusion that Maccsand
was wilful and mala fide in its refusal to comply with the order of the
court - other than his finding that because the notice of appeal (which
would have suspended the interim interdict) was void ab initio in that the
16
notice preceded his reasons for the order made. The j udge also stated that
because in his view the interim orde r was not appealable, the inference
was irresistible that Maccsand was in contempt of the interim order.
[25] It is true that this court in Putco Ltd v TV & Radio Guarantee Co
(Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A) at 836D-F held:
‘Once a failure to comply with an order of Court has been established,
wilfulness will normally be inferred, and the onus will rest upon the person
who failed to comply with such order to rebut the inference of wilfulness on a
balance of probabilities.’
Counsel for Maccsand submitted in th eir written heads that the contempt
finding was made in the absence of a ny notice that such finding was ever
being contemplated and without affo rding Maccsand any opportunity of
addressing the issue. Thus Maccsand would on this submission have been
denied the opportunity to rebut any in ference of wilfulness on its part.
The absence of papers and a failure by the counsel for the Committee to
rebut lends colour to this submission. I am in a ny event of the view that
there is not a scintilla of evidence to justify the conclusion that Maccsand
was wilful and mala fide in its refusal to obey the interdict.
[26] Maccsand acted on legal advice th at the notice of appeal suspended
the order and accordingly did not intentionally disobey the interim
17
interdict. The advice was certainly not unreasonable. Rule 65(1)(a) of the
rules of the LCC provides that once an application for leave to appeal has
been filed, the operation and execut ion of an order is automatically
suspended pending the de termination of the application for leave to
appeal. Maccsand delivered its application for leave to appeal in terms of
Rule 69(1)(b) which provides that no tice of application for leave to
appeal must be delivered within 15 days after the order is made or after
full reasons for the order is given, if the re asons are given on a later date.
The rule in pellucid language distin guishes between the making of an
order and the furnishing of reasons and provides that notice of application
for leave to appeal may be made within fifteen days of either event.
[27] Rule 69(1) of the LCC is couche d in terms similar to Rule 49(1) of
the Uniform Rules and is consistent w ith the established approach that an
appeal lies against the order and not the reasons (see Lipschitz NO v
Saambou-Nasionale Bouvereniging 1979 (1) SA 527 (T ) at 528H-529H).
Counsel for the Committee submitted be fore us as he did in the court a
quo that Rule 69(1)(b) must be read with Rule 69(2). So Maccsand had
to await the reasons in order to specify in detail in the notice of appeal the
grounds of appeal or precise findings appealed against. That may well be
but Maccsand was entitled to adopt the attitude that it could amplify its
notice of application for leave to app eal when reasons for the order were
18
handed down. It is ther efore impossible to infer that on the legal advice
given Maccsand intentionally and wilfully flouted the interim interdict.
[28] I make the following order:
1. The applicant is granted leave to appeal against paragraphs 3 and 7 of
the order of Moloto J dated 28 Augus t 2003 granting the interim interdict
and order for costs;
2. Paras 3(a) and 7 of the order men tioned in para 1 of this order are set
aside and replaced with the following:
‘3(a) Pending the finalisation of the claim for restitution of Erf
1197, Macassar, to the applicant, an interim interdict be issued
against Maccsand:
3(a)(i) Interdicting Maccsand from continuing to mine sand on Erf
1197, Macassar, save for the area id entified as Phase 1 demarcated
as strips B to C on the General Site Layout Plan dated March 1997,
which Maccsand shall be entitled to mine, on condition:
3(a)(ii) that the sum of R120,000 is set as ide in the trust fund
established in terms of the Min erals Act, No 50 of 1991, for
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purposes of rehabilitating strips B and C on completion of mining
on each respective strip; and
3(a)(iii) that such rehabilitation is in compliance with the approved
Environmental Management Pr ogramme and done to the
satisfaction of the Department of Mineral and Energy Affairs.
3(a)(iv) Maccsand is given leave to approach the Land Claims
Court for a further variation of this paragraph should the
Respondent, the Macassar Land Cl aims Committee not proceed
with the trial for the restitution of Erf 1197 within one year from
the grant of this order or as soon as the mining of strip B and C
and the rehabilitation thereof is complete, whichever event should
occur first.’
‘7. The costs occasioned by the application for the interdict are
reserved for determination at the hearing of the restitution claim.’
3. The appeal against the whole of the order granted by Moloto J on 26
September 2003 that the resumptio n of the mining on Erf 1197,
Macassar, by Maccsand is in contempt of the interim order granted on 28
August 2003 is upheld with costs and that order is set aside.
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4. The respondent, the Macassar La nd Claims Committee, is ordered to
pay the costs of the appeal, such costs to include the costs of the
applications for leave to appeal and the costs of two counsel.
_____________
C N P A T E L
ACTING JUDGE OF APEAL
CONCUR:
Farlam JA
Cameron JA
Mthiyane JA
Jafta AJA