Fraser Solar GMBH v Trans-Caledon Tunnel Authority and Others (2020/33700; 2021/35990) [2021] ZAGPJHC 834 (29 December 2021)

Fraser Solar GMBH v Trans-Caledon Tunnel Authority and Others (2020/33700; 2021/35990) [2021] ZAGPJHC 834 (29 December 2021)

The court found that the application was not urgent and should not be enrolled. The orders previously granted did not require the freezing of bank accounts or the cessation of payments to the Kingdom of Lesotho. The only undertaking was by Fraser Solar GMBH not to execute on the order or writs, and there was no explicit order preventing the flow of funds. The court held that contempt was not established, as there was no clear breach of a court order. Furthermore, the applicant failed to demonstrate irreparable harm, as the payments under the treaty would continue indefinitely and any recovery would merely be delayed. The court concluded that the requirements for urgency and contempt were...

Citation
[2021] ZAGPJHC 834
Parties
Applicant: Fraser Solar GMBH; Respondent: Trans-Caledon Tunnel Authority; Respondent: Kingdom of Lesotho; Respondent: Lesotho Highlands Development Authority; Respondent: Standard Bank of South Africa; Respondent: The Sheriff of the Court: Johannesburg Central; Respondent: The Sheriff of the Court: Centurion East
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 December 2021
Case Number
2020/33700; 2021/35990
Procedural Posture
Urgent Application / Application for Urgent Relief and Contempt Order
Outcome
Application dismissed for lack of urgency; costs awarded against Fraser Solar GMBH.
Judges
S Yacoob
Legal Topics
Contempt of Court, Arbitral Award Enforcement, Urgent Interdict, Writ of Attachment
Civil Procedure Commercial and Corporate Contempt of Court Arbitral Award Enforcement Urgent Interdict Writ of Attachment

Case Brief

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Parties

Fraser Solar GMBH

Applicant

Trans-Caledon Tunnel Authority

Respondent

Kingdom of Lesotho

Respondent

Lesotho Highlands Development Authority

Respondent

Standard Bank of South Africa

Respondent

The Sheriff of the Court: Johannesburg Central

Respondent

The Sheriff of the Court: Centurion East

Respondent

Procedural Posture

Urgent Application / Application for Urgent Relief and Contempt Order

Legal Issues

  1. 1 Whether the application for contempt and urgent relief should be enrolled and heard as urgent.
  2. 2 Whether the respondents are in contempt of court orders or writs of attachment.
  3. 3 Whether the funds held by the Trans-Caledon Tunnel Authority should be frozen pending determination of the stay application.

Ratio Decidendi

The court found that the application was not urgent and should not be enrolled. The orders previously granted did not require the freezing of bank accounts or the cessation of payments to the Kingdom of Lesotho. The only undertaking was by Fraser Solar GMBH not to execute on the order or writs, and there was no explicit order preventing the flow of funds. The court held that contempt was not established, as there was no clear breach of a court order. Furthermore, the applicant failed to demonstrate irreparable harm, as the payments under the treaty would continue indefinitely and any recovery would merely be delayed. The court concluded that the requirements for urgency and contempt were...

Court Disposition

Application dismissed for lack of urgency; costs awarded against Fraser Solar GMBH.

Orders

  • The application is not urgent and is not enrolled.
  • Fraser Solar GMBH is to pay the costs of the Kingdom of Lesotho, the Trans-Caledon Tunnel Authority, and the Lesotho Highlands Development Authority, including costs of two and three counsel where so employed.