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[2013] ZAWCHC 193
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Quality Labels Solutions CC and Others v Head of Department of Culture, Sports And Recreation, Mpumalanga Province and Others (14030/2012) [2013] ZAWCHC 193 (1 August 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
no: 14030/2012
In the
matter between:
QUALITY
LABELS SOLUTIONS CC
t/a
TAGTRON
SOLUTIONS
.......................................................
First
Applicant
THORNBIRD
TRADE & INVEST 84 (PTY) LTD
t/a
REDDOTT
…............................................................................................
Second
Applicant
ALTIUS
TRADING 433 (PTY) LTD
t/a
LINOMTHA
…............................................................................................
Third
Applicant
KEY
ENCRYPTED PRINT TECHNOLOGY (PTY) LTD
t/a
KEPT
...........................................................................................................
Fourth
Applicant
TRIPLE
SL TECH
CC
........................................................................................
Fifth
Applicant
and
HEAD
OF DEPARTMENT OF CULTURE, SPORTS AND
RECREATION,
MPUMALANGA PROVINCE
.............................................
First
Respondent
GOVERNMENT
OF THE PROVINCE OF MPUMALANGA
....................
Second
Respondent
METROFILE
(PTY) LTD t/a CSA CUSTOMER SERVICES
........................
Third
Respondent
JENNY
AND THEMBI TRADING
CC
........................................................
Fourth
Respondent
FOREK
IT SERVICES
CC
............................................................................
Fifth
Respondent
TAZI
INVESTMENT
CC
............................................................................
Sixth
Respondent
BATHO-PELE
SECURITY SERVICES CC
..........................................
Seventh
Respondent
PHINDA
MPUMI MULTI TRADING
CC
....................................................
Eighth
Respondent
NDENDE
INVESTMENT
CC
.......................................................................
Ninth
Respondent
JUDGMENT:
1 AUGUST 2013
Schippers
J:
[1]
This is an urgent application for a declaratory order that an interim
interdict is revived by the noting of an appeal; alternatively,
for
an order granting the applicants a further interim interdict pending
the determination of an application for leave to appeal
and if such
leave is granted, the determination of the appeal.
[2]
The applicants are unsuccessful bidders in Tender No. CSR/070/11MP
for the provision and installation of book anti-theft devices
in 76
libraries in Mpumalanga (“
the tender
”). The
closing date of the tender was 14 December 2011.The first respondent
awarded the tender in respect of 10 libraries
to Bell Oak Investments
(Pty) Ltd (“
Bell Oak
”), and the tender for the
remaining libraries, to the third to ninth respondents.
[3]
In July 2012 the applicants brought an application to review and set
aside the award of the tender to the third to ninth respondents;
and
an interim interdict restraining them from taking any steps to
implement the tender, pending the determination of the review
application. On 7 September 2012 this Court (per Louw J)
granted an interim interdict restraining the respondents from taking
any steps to implement the tender (including the conclusion of any
agreements in respect of the tender or handing over any library
sites
to the fourth to ninth respondents), pending the determination of the
application to review and set aside the award of the
tender.
[4]
On 4 June 2013 this Court (per Henney J) delivered judgment in the
review application. It dismissed the application to
review and
set aside the award of the tender to the fourth, fifth, seventh,
eighth and ninth respondents; and declared invalid
and set aside the
award of the tender to the sixth respondent, which was referred back
to the first respondent for reconsideration.
[5]
On 13 June 2013 the applicants noted an appeal to the Supreme Court
of Appeal (SCA), alternatively, a Full Bench of this Court,
against
the order dismissing the application to review and set aside the
award of the tender. The application for leave to
appeal is
pending before Henney J.
[6]
During argument Mr. De Waal, on behalf of the applicants, informed me
that they were no longer pressing the point that the interim
interdict granted by Louw J was revived by the noting of the appeal.
He handed up a draft order sought by the applicants,
that the first
and second respondents be restrained from concluding any agreements
or handing over any library sites to the fourth
to ninth respondents
for the installation of anti-theft devices, until determination of
the application for leave to appeal, with
costs to stand over.
[7]
The
requirements for the grant of an interim interdict are settled law.
These are: a
prima
facie
right; a well-grounded apprehension of irreparable harm if interim
relief is not granted and the ultimate relief is eventually
granted;
a balance of convenience favouring the grant of interim relief; and
the absence of similar protection by any other ordinary
remedy.
[1]
[8]
This is not a case in which a court has not yet been able to decide
the parties’ respective legal rights in the review
application. Their rival positions have been considered and
determined by Henney J, and a detailed judgment has been given.
[9]
The question then is what the applicants must show in order to
establish a
prima facie
right in an interdict pending an
appeal.
[10
M Masuku,
who with Mr Gcelu, appeared for the first and second respondents, on
the authority of
Plettenberg
Bay
,
[2]
submitted that the applicants did not establish a
prima
facie
right –
prima
facie
proof of facts which establish a right in terms of substantive law.
In that case the applicant applied for an interim interdict
to
prevent the police from closing its casino pending the determination
of an action for a final interdict to the same effect (the
main
application). The right asserted by the applicant was its right
to operate a casino. The alleged basis of that
right was a
transitional provision in s 7 of the Gambling Amendment Act 144 of
1992. However, Brand J (as he then was) found
that the
operation of a casino did not fall within the ambit of s 7 and
dismissed the main application. The applicant then
applied for
an interim interdict pending an appeal. In dismissing the
application, the court held that in the main application
it had
already decided that the applicant did not have a right to operate a
casino, which was not a right in terms of substantive
law required
for an interdict.
[3]
Consequently the court had no discretion to grant an interdict for
the protection of a right which it had already found did
not
exist.
[4]
[11]
Mr de Waal
countered with
Indwe
,
[5]
in which the court granted an interim interdict pending an appeal.
It held that the fact that the applicant in
Indwe
did not meet the requirements for a final interdict was an important
distinction between that case and
Plettenberg
Bay
;
and that a finding that a court did not have a discretion to grant
interim relief in the circumstances, would be at odds with
our
constitutional dispensation which did not exist when
Plettenberg
Bay
was
decided.
[6]
[12]
In my
respectful view, the rules relating to the prerequisites for the
grant of an interdict which includes an equitable discretion
to be
exercised by the court, founded on the common law,
[7]
have not changed with the advent of the Constitution, although the
common law has been subsumed under, and derives its force from,
the
Constitution.
[8]
It seems
to me that the decision in
Plettenberg
Bay
is
explicable on two grounds. The first is founded on the
Constantinides
[9]
decision in which Brand J found support for his viewpoint.
[10]
It is that if an application for an interim interdict is refused on
the basis of a finding that the applicant has not established
a
prima
facie
right, a court is not entitled to grant an interim interdict pending
an appeal. The second is that the court decided a legal
issue,
namely that the alleged ground of the applicant’s right to
operate a casino did not fall within the ambit of s 7
of the
Gambling Amendment Act 144 of 1992. Having already determined
that issue, the court held that there was no substantive
right for
the grant of an interim interdict pending an appeal.
[13]
In
Ismail
[11]
Dowling J held that an interdict
pendente
lite
was not revived by the noting of an appeal and that if a litigant
desires further protection by way of an interdict pending the
determination of an appeal, he must make application therefor.
[12]
However,
Plettenberg
Bay
seems to point the other way - a court has no discretion to grant an
interdict to protect a right which it already found does not
exist.
It is not necessary for present purposes to resolve this issue and I
shall assume that the applicants
are entitled to apply for an
interdict pending the determination of an appeal, despite the fact
that Henney J found that they did
not establish a reviewable
irregularity as contemplated in the Promotion of Administrative
Justice Act 3 of 2000 (PAJA).
[14]
To revert
to the question at hand. As was said in
Ferreira
,
[13]
trying to define the limits of a
prima
facie
right is like trying to measure a shadow. The court referred to
Moosa
[14]
where it was said that it is impossible to describe with any
precision the concept, “
a
right
prima
facie
established
though open to some doubt
”.
It is a flexible concept which enables a court to decide in an
individual case whether the proof is sufficient, especially
when it
is closely coupled with the court’s discretion, which includes
the consideration of the balance of convenience –
the deciding
factor in most borderline cases.
[15]
[15]
It is that
flexibility, in my view, which has enabled the courts to determine
the degree of proof required of an applicant for an
interdict whose
right cannot be said to be a “
clear
right
”.
The proper approach to the determination of a
prima
facie
right in the context of an interim interdict decided in
Webster
,
[16]
and qualified in
Gool
,
[17]
has
stood the test of time.
[18]
In
Ferreira
Heher J (as he then was) considered that the “
serious
question to be tried
”
approach for an interlocutory injunction in English law enunciated in
American
Cyanamid
,
[19]
was in substance to be equated with the practical concept of a
prima
facie
case open to some doubt.
[20]
In deciding whether the appellants in that case had established a
prima
facie
right in an application for an interim interdict pending a
determination of the constitutionality of statutory provisions by the
Constitutional Court, the enquiry was whether they had shown that
there was a serious question to be tried by the Constitutional
Court.
[21]
[16]
However, in
my opinion both these tests are inappropriate to determine whether an
applicant has established a
prima
facie
right in an application for an interim interdict, pending an appeal.
In this regard, the case of
Novartis
,
[22]
decided recently in the Court of Appeal (Civil Division) in the
United Kingdom, is instructive. The appeal concerned the
grant
of interim injunctive relief pending appeal when a patent in suit had
been held invalid. In the court of first instance
Birss J held
that different considerations apply to the grant or refusal of
interim relief once a trial has taken place; and that
once the court
has given a ruling on the merits, a party needs a good arguable case
on appeal before the court would be at all
likely to grant an
injunction pending appeal.
[17]
The Court of Appeal did not uphold the standard of a good arguable
case. Lord Justice Floyd summarized the principles
which apply
to the grant of an interim injunction pending appeal where the
claimant has lost at first instance, as follows:
“
i) The court
must be satisfied that the appeal has a real prospect of success.
ii) If the court is
satisfied that there is a real prospect of success on appeal, it will
not usually be useful to attempt to form
a view as to how much
stronger the prospects of appeal are, or to attempt to give weight to
that view in assessing the balance
of convenience.
(iii) It does not
follow automatically from the fact that an interim injunction has or
would have been granted pre-trial that an
injunction pending appeal
should be granted. The court must assess all the relevant
circumstances following judgment, including
the period of time before
any appeal is likely to be heard and the balance of hardship to each
party if an injunction is refused
or granted.
(iv) The grant of an
injunction is not limited to the case where its refusal would render
an appeal nugatory. Such a case
merely represents the extreme
end of a spectrum of possible factual situations in which the
injustice to one side is balanced against
the injustice to the other.
(v) As in the case of
the stay of a permanent injunction which would otherwise be granted
to a successful claimant, the court should
endeavour to arrange
matters so that the Court of Appeal is best able to do justice
between the parties once the appeal has been
heard.
”
[23]
[18]
Bearing in mind the differences between the English law relating to
injunctions and our law, I consider that the concept of
a
prima
facie
right is sufficiently flexible to accommodate the standard
of “
a real prospect of success on appeal
”, as the
degree of proof required of an applicant to establish a
prima
facie
right in an interdict pending an appeal. This
standard posits a higher threshold than a
prima facie
right
although open to some doubt, and is likely to be more difficult to
meet, mainly because different considerations apply to
the grant or
refusal of interim relief once a trial has taken place or an
application has been decided.
[19]
It follows that the requirement of a reasonable prospect of success
on appeal which must be satisfied before leave to appeal
is granted,
must not be equated with the requirement of a real prospect of
success on appeal. Otherwise it would mean that
a party granted
leave to appeal would automatically establish a
prima facie
right for the purpose of an interdict pending appeal.
[20]
As in the
case of an ordinary interim interdict, the establishment of a prima
facie right – a real prospect of success on
appeal –
should not be treated as a threshold requirement. Instead, it
is related to the other requirements, such as
irreparable harm, the
balance of convenience and the absence of an ordinary remedy; and
remains an element of the balancing process
which a court undertakes
in the exercise of its discretion whether or not to grant a temporary
interdict pending an appeal, after
considering the affidavits as a
whole.
[24]
[21]
I turn now to consider whether the appellant has met the requirements
for the grant of an interim interdict pending appeal.
[22]
In relation to the first requirement - a
prima facie
right -
the founding affidavit states that “
the factual and legal
issues before Louw J and Henney J were essentially the same and yet
these two learned judges reached diametrically
opposed findings and
results
”. Then it is said that this demonstrates that
there is at least a reasonable prospect that an appeal court would
reach
a different conclusion.
[23]
This
however does not demonstrate a real prospect of success on appeal.
As is evidenced by his judgment, Louw J intended to
grant an
interdict
pendente
lite
in
the ordinary form, i.e. pending the determination of the application
to review and set aside the tender.
[25]
At that stage of the proceedings, all the applicants had to show was
a
prima
facie
right, although open to some doubt; and it was uncertain whether
their right to just administrative action under s 33 of the
Constitution
and the provisions of PAJA had been infringed. The
enquiry by Louw J into the merits of the review application was
preliminary
and necessarily superficial. However, in the
application before Henney J, the applicants had to establish, on a
balance of
probabilities, the grounds upon which they attacked the
decisions sought to be reviewed and set aside. Henney J found
that
they failed to do so. Consequently their right to just
administrative action was not infringed.
[24]
Moreover,
as was said in
Novartis
,
[26]
it does not follow that if an interdict has been granted pre-trial,
that an interdict pending appeal should be granted. The
court
must assess all the relevant circumstances following judgment.
As already stated, a reasonable prospect of success
on appeal must
not be equated with a real prospect of success on appeal required for
an interim interdict.
[25]
I have dealt with the only the grounds in the founding affidavit on
which the applicants rely for the alleged establishment
of a
prima
facie
right and to which their argument on this aspect was
confined. I must stress that my decision on the present
application
does not involve any assessment of the application for
leave to appeal, more particularly whether the applicants have a
reasonable
prospect of success on appeal. In the light of this
and the conclusion to which I have come, it is unnecessary to
consider
any further whether the applicants’ have established a
prima facie
right in this case.
[26]
As to the balance of convenience, the applicants contend that they
will suffer considerable prejudice and irreparable harm
if interim
relief is not granted pending the application for leave to appeal and
the appeal itself. They say that they will
not be able to
perform the work and that their appeal would be rendered moot unless
an interim interdict is granted; and that the
public will suffer harm
if the tender is to be implemented by the respondents, rather than
the first applicant. They also
say that the first and second
respondents will not suffer any prejudice if interim relief is
granted, for the following reasons.
It was never seriously
disputed that anti-theft devices in libraries were neither urgent nor
essential. For many years the
libraries never had such
devices. The theft of only five library books has been recorded
by the Department of Culture Sports
and Recreation, Mpumalanga
Province (“
the Department
”) in the last year.
The anti-theft devices are not intended to provide any security for
learners, staff or visitors.
The fourth to ninth respondents
have done shoddy work in respect of the libraries allocated to them.
[27]
The first and second respondents’ answer is that if an
interdict were to be granted, it would create uncertainty in the
resolution of disputes; and where, as here, the dispute involves the
delivery of services to the public by a government entity,
it will
frustrate development and progress. They contend that it is not
the purpose of an interim interdict to bind parties
until the
resolution of a dispute by the highest court of appeal. The
applicants, they say, “
are fighting for a right to be put
back in the race
” for the tender, in respect of which there
is no guarantee of success in the light of the judgment of Henney J,
who found
evidence of collusive bidding between the first applicant
and Bell Oak. The tender was issued to curb prevalent theft of
library materials. The delay in the installation of anti-theft
devices in public libraries has a detrimental effect on the
safety of
library material and is prejudicial to the public for whose benefit
the devices are installed. An interdict would
suspend an
important development in the protection of public libraries and
frustrate service delivery in vulnerable communities.
[28]
The fact
that a successful appeal may be rendered nugatory, does not, in my
view, per se justify the grant of an interdict pending
an appeal.
It is but a factor which a court takes into account in the exercise
of its discretion when considering inter alia
the balance of
convenience. And in this case there is the further
consideration that an appellate court may exercise its
discretion not
to set aside the award of the tender. Invalid administrative
acts are not set aside for the asking: a court
has a discretion
whether to grant or withhold the remedy.
[27]
[29]
I do not think that the balance of convenience, which is different
from that which prevailed prior to the judgment of Henney
J, favours
the applicants. The applicants overlook the importance of
securing library books and materials - an administrative
function of
the Department. Public libraries, which support children,
learners, students, the educational community and ordinary
people by
granting them access to books, information and knowledge, are a vital
part of personal, educational and socio-economic
advancement.
Information is an essential part of a nation’s resources and
access to it is a basic human right.
So too education.
With declining budgets and higher costs of books and materials, it is
becoming increasingly difficult to
meet the needs of library users.
Therefore public libraries must be safe from security threats and
vulnerability.
[30]
Public libraries in Mpumalanga have been without anti-theft devices
for a long time. It is in the public interest that
these
anti-theft devices should now be installed. Library books and
materials are public resources which should be preserved
and
protected. Public libraries play an essential role in promoting
the culture of reading and building communities, particularly
in
poverty-stricken areas. In some places they are dynamic,
versatile community centres.
[31]
For these reasons, the applicants’ claim that anti-theft
devices are not urgently required or essential does not bear
scrutiny.
[32]
A factor which to my mind tips the scales in favour of the
respondents is the period of time before an appeal is likely to
be
heard. Given the time that will be taken up by the compilation
of an appeal record for the SCA or a Full Bench of this
Court; the
filing of heads of argument; the hearing of an appeal; and the
potential of yet a further appeal to the Constitutional
Court, the
respondents will be severely prejudiced should an interdict be
granted pending appeal. The closing date of the
tender was 14
December 2011 – some 19 months ago. The applicants
successfully halted its implementation pending the
determination of
their review application. That application has been decided.
The applicants have had their day in
court and lost. There is
no guarantee, let alone any assurance that they will be awarded the
tender should the appeal succeed.
In the event of an appeal
succeeding, given its nature, the tender is likely to be remitted to
the Department to be awarded afresh.
Again, there is the
possibility of a disgruntled bidder taking that decision on review.
And in all of this, public libraries
in Mpumalanga will remain
unsecured, contrary to the public interest.
[33]
In the circumstances, I consider that it would be substantially
unfair to deprive the respondents, particularly the successful
bidders, of the fruits of their success.
[34]
Then there is the prejudice to the fourth and eighth respondents.
Henney J found that it would not be just and equitable
to order that
they should not complete the remainder of the work for which the
tender was awarded. Both these respondents
had incurred
expenses and bought all the equipment for installation in the
libraries. The prejudice that they will suffer
if an interdict
pending an appeal were to be granted, plainly outweighs any prejudice
to the applicants.
[35]
Finally, as regards the absence of an ordinary remedy, the applicants
contend that a damages claim against the Department is
not a viable
alternative as it is not an easy task to demonstrate intentional
wrongdoing. That may be so. But equally,
the granting of
an interdict pending appeal may very severely damage the respondents
in such a way that they will have no remedy
against the applicants if
they, the respondents, succeed on appeal. Apart from this,
having regard to the other requirements
for interim relief and the
weight to be given to them in the exercise of my discretion, I do not
think that this is a case where
an interdict should be granted.
[36]
For the reasons advanced above and in the light of the particular
circumstances of this case, an interim interdict pending
an appeal
against the judgment of Henney J, is refused.
[37]
There is a further issue which stands in the way of granting the
applicants the relief sought. It is that they failed
to give
the eighth respondent any notice of this application, and the notice
to the fifth, seventh and ninth respondents was inadequate
in the
circumstances.
[38]
It is trite
that a party who has legal interest in the subject matter of
litigation which may be prejudicially affected by the judgment
of a
court, must be joined in the proceedings.
[28]
[39]
The application was launched on 8 July 2013 and served that day on
the first and second respondents, care of the State Attorney,
Cape
Town. It was also served on the fourth respondent, care of
Fairbridges attorneys, Cape Town. The notice of motion
was
addressed only to those respondents. The application was not
served on the remaining respondents.
[40]
In the answering affidavit, delivered on or about 12 July 2013, the
applicants were alerted to the fact that it is not only
the first and
second respondents who have an interest in the application and that
they were required to serve the papers on all
the respondents.
They failed to do so.
[41]
On 17 July 2013 when the court file was handed to me as the duty
Judge for urgent applications, the attention of the applicants’
legal representatives was again drawn to the non-joinder of the
respondents. The matter was postponed for hearing on 18 July
2013.
[42]
On 18 July 2013 when the application was argued, there was no
indication in the court file that the respondents who had to
be
joined were given notice of the application.
[43]
It was only on 19 July 2013, after the application had been heard,
that an affidavit of service made on 18 July 2013 by Mr
Roos, a
candidate attorney employed by the applicants’ attorneys, was
delivered to me under cover of a letter by the applicants’
attorneys of even date. The affidavit states that on 16 July
2013, the founding papers were served on the fifth respondent’s
attorneys in Johannesburg via e-mail at 15:52 and that the attorneys
confirmed receipt at 16:21 that day. On 17 July 2013
the
founding papers were served on the third respondent via e-mail at
15:40; and a copy thereof was also sent to its Regional Director
on
18 July 2013. The founding papers were served on the seventh
respondent on 17 July 2013 via e-mail at 14:29 and receipt
thereof
was confirmed at 15:43 that day. On 17 July 2013 at 15:49 a
copy of the founding papers was served via e-mail on
the ninth
respondent. In his affidavit Mr Roos submits that “
there
has been proper compliance with all requirements of service
”
[44]
But that is not so. The record shows that the eighth respondent
was not given notice of the application. Furthermore,
save for
the fifth respondent, the founding papers were served on the
respondents referred to in the affidavit by Mr Roos on 17
July 2013 –
after the time for which the application had been enrolled, had
passed. The notice of motion states that
the application would
be made on Wednesday 17 July 2013 at 10h00. Worse, it does not
appear from either the record or Mr
Roos’ affidavit that any of
the respondents referred to in the affidavit were informed that the
application had been postponed
for hearing on Thursday 18 July 2013.
[45]
Once again
it is necessary to say that rule 6(2) of the Uniform Rules of Court
is peremptory.
[29]
There is no
rule that says that the requirement that notice must be given to a
person against whom relief is claimed, does not
apply to an urgent
application. Although a court may in terms of rule 6(12)(a)
dispense with the forms and service provided
for in the Rules, it is
enjoined by the subrule to dispose of an urgent application by
procedures which shall as far as practicable
be in terms of the
Rules.
[46]
Despite the
fact that the applicants’ legal representatives were on more
than one occasion advised to join parties who have
a legal interest
in the outcome of this application, they have not done so, or have
done so improperly. No explanation has
been furnished for the
failure to serve the founding papers on the third to fifth and
seventh to ninth respondents when the application
was launched.
Neither is there any explanation for the failure to inform those
respondents of the hearing of the application
on 18 July 2013.
In effect then, respondents who have a legal interest in this matter
were not given notice of this application,
which is fatal to the
applicants’ case, and also warrants the dismissal of the
application.
[30]
[47]
I make the following order:
The
application is dismissed with costs, such costs shall include the
costs of only one counsel.
SCHIPPERS
J
[1]
Joubert
et
al
(eds)
The
Law of South Africa
(2
nd
ed 2008) vol 11 p 419 para 403;
Setlogelo
v Setlogelo
1914 AD 221 at 227.
[2]
Plettenberg
Bay Entertainment (Pty) Ltd v Minister van Wet en Orde en ‘n
Ander
1993 (2) SA 396
(C).
[3]
Plettenberg
Bay
n
2 at 399E-F.
[4]
Plettenberg
Bay
n 2 at 401E.
[5]
Indwe
Aviation (Pty) Ltd v Petroleum Oil and Gas Corporation of South
Africa (Pty) Ltd and Another
(2)
2012 (6) SA 110
(WCC).
[6]
Indwe
n 5 para 24.
[7]
LAWSA
n 1 p 413 para 391.
[8]
Pharmaceutical
Manufacturers Association of S A and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 49.
[9]
Constantinides
v Jockey Club of South Africa
1954 (3) SA 35
(C) at 53H.
[10]
Plettenberg
Bay
n 2 at 399G-400A.
[11]
Ismail
v Keshavjee
1957
(1) SA 684
(T).
[12]
Ismail
n 9 at 687H-688A;
Kelly
Group Ltd and Another v Solly Tshiki & Associates (SA) (Pty) Ltd
and Others
2010 (5) SA 224
(GSJ) paras 19 and 21.
[13]
Ferreira
v Levin NO and Others
;
Vryenhoek
and Others v Powell NO and Others
1995 (2) SA 813
(W) at 831E.
[14]
Moosa
and Another v Knox
1949
(3) SA 327
(N) at 333.
[15]
Moosa
n 12 at 333-334.
[16]
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189. See also
Simon
NO v Air Operations of Europe AB and Others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228G.
[17]
Gool v
Minister of Justice and Another
1955 (2) SA 682
(C) at 688E-F.
[18]
The
accepted test for a prima facie right in the context of an interim
interdict is to take the
facts
averred by the applicant together with the facts set out by the
respondent which the applicant cannot dispute and to consider
whether, having regard to the inherent probabilities, the applicant
should on those facts obtain final relief at the trial.
The
facts put up contradiction by the respondent should then be
considered and if serious doubt is thrown on the applicant’s
case, he cannot succeed in obtaining temporary relief.
[19]
American
Cyanamid Company v Ethicon Ltd
[1975] UKHL 1
;
[1975] 1 All ER 504
(HL).
[20]
Ferreira
n 11 at 836A-B.
[21]
Ferreira
n 11 at 836E; 839J
;
Law Society of South Africa and Others v Road Accident Fund and
Another
2009
(1) SA 206
(C) para 15.
[22]
Novartis
AG v
Hospira UK Ltd
[2013] EWCA Civ 583
delivered on 22 May 2013.
[23]
Novartis
n 20 para 41.
[24]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and
Another
1973 (3) SA 685
(A) at 691E-G.
[25]
Ismail
n 9 at 687F-G.
[26]
Norvatis
n 20 para 41.
[27]
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA) para 36;
Chairperson,
Standing Tender Committee and Others v JFE Sapela
Electronics (Pty) Ltd and Others
2008 (2) SA 638
(SCA) para 28.
[28]
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 657;
PE
Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd
1980 (4) SA 801
(A) at 804B-E;
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
and Others
2005 (4) SA 212
(SCA) paras 64-66.
[29]
Rule
6(2) reads: “
When
relief is claimed against any person, or where it is necessary or
proper to give any person notice of such application, the
notice of
motion shall be addressed to both the registrar and such a person,
otherwise it shall be addressed to the registrar
only
.”
[30]
Transvaal
Agricultural Union
n 28 paras 19 and 67.