Emfuleni Local Municipality and Others v Sams Tissue Products (PTY) Ltd (18024/2022) [2022] ZAGPJHC 954 (1 December 2022)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 18024/2022

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED

1/12/2022

In the matter between:

EMFULENI LOCAL MUNICIPALITY

1ST APPLICANT

EXECUTIVE MAYOR, EMFULENI

2ND APPLICANT

MUNICIPALITY: SIPHO RADEBE N.O.

MUNICIPAL MANAGER, EMFULENI

MUNICIPAL: LUCKY LESEANE N.O.

3RD APPLICANT

And

SAMS TISSUE PRODUCTS (PTY) LTD

RESPONDENT

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

MAKUME J:

[1] The Applicants who were the Respondents in this application seek leave to appeal against prayer four of the order I handed down on the 6th July 2022.

[2] That prayer 4 reads as follows:

“This order does not prevent the Respondents from exercising their legal rights in terms of the revenue and debt collection by laws in respect of any actual indebtedness owed by the Applicants to the Respondent arising after 29th June 2022.”

[3] The Applicants argue that this order means that the Municipality is prevented from exercising its legal right in terms of its revenue and debt collection by laws, including instituting any legal proceedings in respect of Sam Tissue Products indebtedness prior to 29 June 2022.

[4] It is that interpretation that the Applicant says should go on appeal to the full bench of this Court alternatively the Supreme Court of Appeal.

[5] The Applicants interpretation of the order in paragraph 4 is clearly wrong. There is nowhere in the judgment nor in the order in which this Court barred Emfuleni from instituting action against the Respondent for recovery of debts due to it. All that the order says is that if there is actual debt not estimated debt they can proceed to institute action.

[6] It must be recalled that the interdict came about because Emfuleni threatened to cut off electricity supplies on a disputed claim based on estimates. It is that matter for which Emfuleni is now been sued as directed in paragraphs 2 and 3 of the order.

[7] The order in paragraph 4 is directed at preventing threats to cut off based on estimates which may result in further interdicts.

[8] The Applicants unfounded fear that it will be faced with a plea of prescription or some form of special plea has been put to bed by Counsel for the Respondent who indicated before this Court that Sams Tissue has no intention of relying on such pleas and actually invited the Applicants to file their counterclaim.

[9] The test to be applied in deciding whether or not leave should be granted is governed by the provisions of Section 17(1) of Act 10 of 2013 which provides as follows:

“Leave to appeal may only be given where the judge or judges concerned are of the opinion that:

a) (i) the appeal would have a reasonable prospect of success or

(ii) there is some other compelling reason why the appeal should be heard including conflicting judgments.”

[10] I am not persuaded that the appeal would have a reasonable prospects of success.

ORDER:

1. The application for leave to appeal is dismissed.

2. The Applicants are ordered to pay costs of this application.

DATED at JOHANNESBURG this the 01st day of DECEMBER 2022.

M A MAKUME

JUDGE OF THE HIGH COURT

DATE OF HEARING : 01 DECEMBER 2022

DATE OF JUDGMENT : 01 DECEMBER 2022

FOR APPLICANTS

: ADV MATHOPO

INSTRUCTED BY

: MAJAVU INCORPORATED

FOR RESPONDENT : ADV KHAN

INSTRUCTED BY

: SHAHEED DOLLIE ATTORNEYS