MEC: Department of Community Safety and Transport Management, North West v Thusang Bana Transport Services CC and Others (UM289/2020) [2021] ZANWHC 46 (4 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

Case No.: UM289/2020

In the matter between:

MEC: DEPARTMENT OF COMMUNITY SAFETY

Applicant

AND TRANSPORT MANAGEMENT, NORTH WEST

And

THUSANG BANA TRANSPORT SERVICES CC

First Respondent

FIRST NATIONAL BANK, MEGA CITY

BRANCH

Second Respondent

SHERIFF OF THE HIGH COURT,

Third Respondent

MAHIKENG

REASONS FOR JUDGMENT

MTEMBU AJ

INTRODUCTION

[1] This is an application in which the applicant obtained, as a matter of urgency, an interim interdict against the respondents. The interim interdict, embodied in a rule nisi, was obtained on 31 December 2020. The return day was initially 20 January 2021. The parties appeared before me on the return date. The applicant made an application to extend the rule nisi, on the basis it need an opportunity to file a replying affidavit to the first respondent’s answering affidavit. The rule nisi was therefore extended until 28 January 2021. The relief sought by the applicant in terms of the notice of motion, if confirmed, would be an order in the following terms:

“3.1 That the second respondent be interdicted from depositing R37 490 942, 29 into the first respondent’s bank account pending the Supreme Court of Appeal;

3.2 Declaring that the second respondent pay back the amount of money mentioned above into the applicant’s account;

3.3 Declaring that, if the R37 490 942.29 amount of money has already been deposited into the first respondent’s account, the first respondent be interdicted to pay it back into the applicant’s account.”

[2] The applicant obtained a rule nisi in all the prayers sought in the notice of motion. On the return date, 28 January 2021, I discharged the rule nisi and dismissed the application with costs. The applicant was also ordered to pay costs of the 20th January 2021. Both Counsel addressed me on the question of costs of 20 January 2021, and agreed that the costs of 20 January 2021 should follow the result of the application. I made an undertaking that I will furnish the parties with reasons for the order I made. This is therefore a fulfilment of that undertaking.

THE FACTS

[3] During the year of 2010, the applicant and first respondent entered into a contract for the provision of school transport services. After a certain period of time, parties got embroiled in a dispute about discrepancies regarding the agreed travelling of kilometres by the first respondent. This as a result, the applicant contends, led to the making of an over payment to the first respondent. The dispute ensued between the parties, and the action proceedings were instituted. The matter was heard on 12 and 13 December 2018, and the judgement was delivered on 18 April 2019. This Court ordered that the applicant should pay the first respondent an amount of R22, 075, 252, 05 together with interest and costs. Aggrieved by the outcome of this Court, the applicant applied for leave to appeal which was duly granted on 01 August 2019.

[4] Regarding the prosecution of the appeal, it is common cause that the applicant failed to file intelligible and full sets of transcribed records. It is also common cause that the Registrar of the Supreme Court of Appeal (“SCA”) issued a directive that the appeal has lapsed. The following dates are crucial: on 28 February 2020, the Registrar advised the applicant to file full records within a period of 30 days. On 11 May 2020, the Registrar, again, upon noting that the applicant failed to comply with directive of the 28th February 2020, advised the applicant to file records within a period of 10 days. On 14 August 2020, the Registrar of the SCA issued a directive that the appeal has lapsed due to non-filing of records which was due on 05 December 2019.

[5] On 09 December 2020, the applicant attempted to file a fresh notice of appeal together with an application for reinstatement of the appeal. However, the Registrar of the SCA did not accept the application for reinstatement of the appeal on the basis that no records were attached. It was not compliant with the Rules of the SCA.

[6] On 16 November 2020, the first respondent applied for a writ of execution. This writ was issued on 16 November 2020 and served on the applicant and second respondent, the applicant’s bank account holder, FNB. On 25 November 2020, the FNB bank made payment in the amount of R37 470 942, 29 into the Sheriff’s account in compliance with the execution of writ. On 02 December 2020, this amount was paid into the first respondent’s private bank account.

[7] The applicant approached this Court on urgent basis to suspend the writ of execution on 31 December 2020, and the rule nisi was granted.

[8] Therefore, on the return date, I had to determine whether the rule nisi should be confirmed or discharged.

LEGAL PRINCIPLES

[9] This Court is enjoined to consider the granting of the relief sought only if the facts alleged on behalf of the applicant which are admitted by the respondent in the answering affidavit, together with the facts expressed by the respondent therein, justify such relief.[1]

[10] The principles applicable to the adjudication of interim interdict applications based on the common law have long been settled and are trite. They therefore require no exclusive exposition for present purposes, and there is also abundance of authorities on the subject matter.

[11] The applicant would be entitled to the relief if it is able to establish the following:

(i) a prima facie right even though open to some doubt;

(ii) a well-grounded apprehension of irreparable harm if the interim relief is not granted;

(iii) that the balance of convenience favours the granting of an interim interdict; and

(iv) the lack of another satisfactory or adequate remedy in the circumstances.

[12] It is trite that a Court will not grant an interdict restraining an act which has already been committed. An interdict is not a remedy for a past invasion of rights. See Phillip Morris Inc v Marlboro Shirt Co SA Ltd 1991 2 SA 720 (A); see also De Villiers Van Zyl and Another v Oelofse and Others (31878/2013) [2013] ZAGPPHC 204 (21 June 2013); see also Aristolinx Investments CC t/a ECDC Sasol Garage v Siyongwana (1496/2016) [2016] ZAECMHC 50 (10 October 2016).

APPLICATION OF LEGAL PRINCIPLES

[13] The first question is whether the applicant has shown that it has a prima facie right even though open to some doubt.

[14] It has now become common cause that the judgment was successfully executed when the FNB paid the amount referred to in the judgment into the Sheriff’s account, and the Sheriff paying it into the first respondent’s bank account, meaning the money granted in the judgment has reached its final destiny. Ms Mahlangu, appearing for applicant, confronted with insurmountable evidence from the first respondent’s answering affidavit correctly conceded that this constitutes a final and successful execution of the judgment. Therefore, this Court cannot suspend or stay an act which has already been committed. The horse has bolted. The interdict sought cannot assist the applicant, since the writ of execution has been actually put into effect. During the argument, Ms Mahlangu, correctly so, abandoned prayer 3.1 and 3.2 of the notice of motion. In my view, that was the end of the case.

[15] In respect of prayer 3.3, I agree with Mr South SC, who appeared on behalf of the first respondent that it ought not to have been granted. It is an incompetent relief. It seeks to reverse the successful execution of the judgment. It is trite that a court will not grant an interdict restraining an act which has already been committed[2]. In an application for an interdict the applicant must satisfy the Court that the essentials necessary to obtain it exist. See Jasat v Moosa 1949 (1) SA 883 (N). What the applicant seeks in prayer 3.3 is an order that may be sought at a later stage, if it becomes successful with its intended appeal.

[16] The relief of interdict is not open to the applicant because it is seeking to restrain an act which is already an accomplished fact. The applicant therefore has not demonstrated that it has a prima facie right which would warrant suspension of the execution of the judgment.

[17] The second issue which also needs consideration in determining whether the applicant has shown a prima facie right is the lapsing of the appeal. In Stuurman v Erasmus N.O. (215/2014) [2014] ZAECGHC 10 (20 February 2014), it emerged during argument, that the appeal had lapsed because it had not been prosecuted within the prescribed time period. In that case, the respondent submitted that in the light of the lapsing of the appeal, the application fell to be dismissed on that ground alone. The relief sought was not competent because there was no appeal. ROBERSON J in Stuuman, held that, “I think this submission was correct. If there is no appeal, the judgment can be carried into execution”. The facts are similar. It is common cause that the appeal has lapsed in this matter. The applicant attempted to file an application for reinstatement on 09 December 2020 but the filing thereof was refused by the Registrar of the SCA, as it was not compliant with the Rules of SCA. Technically, this therefore means there is no appeal before the SCA.

[18] In Sabena Belgian World Airlines v Ver Elst and Another 1980 (2) SA 238 (W), the applicant had applied for an order staying a warrant of execution and suspending execution of a judgment pending the outcome of an application for condonation of the late prosecution of an appeal and the appeal itself. In considering the argument that the application was in the nature of an application for an interdict, Vermoten J, after setting out the requisites for an interdict, said the following at 243B-D

“The right which Sabena seeks to protect is to stay the writ and suspend execution of the judgment. It is true that, at common law, noting appeal suspends execution automatically. But here the appeal has lapsed. In such event execution is no longer suspended, but the judgment can be carried into execution. It is for that reason that the clerk of the court issued the warrant of execution on 12 June 1979. It follows that Sabena has not proved that it has a right to a stay of execution, not even a prima facie right open to some doubt.”[My Emphasis]

[19] The Court in Sabena found that the appeal having lapsed, the applicant has shown neither a clear right nor a prima facie right to suspend execution, and on this ground alone the application was refused.

[20] In Panayiotou v Shoprite checkers Pty Ltd and Others 2016 (3) SA (GJ), in this case, the applicant applied for an interdict suspending the execution of the order pending the granting of condonation by the SCA. It was refused on the basis that the applicant had no prima facie right. Sutherland J held that an application for condonation for late filing of the petition does not have the effect of suspending the operation of the judgment.

[21] It follows from the above authorities that the applicant has demonstrated neither a clear right nor a prima facie right deserving the protection of an interdict, and on this ground too, the application cannot succeed.

[22] Accordingly, the applicant has not satisfied the requirements of an interim interdict and its application cannot succeed.

COSTS

[23] What remains is the question of costs. The general rule is that costs must follow the result. Nothing emerges from this matter warranting a deviation from this principle. It was submitted that because of the applicant’s conduct, costs should be awarded against the first respondent on the attorney and client scale. While some of this criticism is warranted, I do not think I can go as far as awarding punitive costs. In the circumstances, a punitive costs order is not warranted.

CONCLUSION

[24] Therefore, it was for these reasons that I granted the order discharging the rule nisi and dismissing the application with costs.

A.M. MTEMBU

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING

: 28 JANUARY 2021

DATE OF JUDGMENT

: 04 FEBRUARY 2021

COUNSEL FOR THE APPELLANT : ADV E MAHLANGU

COUNSEL FOR THE RESPONDENT : ADV A.G. SOUTH SC

[1] PLASCON EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD [1984] ZASCA 51; 1984 (3) SA 623 (A) 634 – 635.

[2] Phillip Morris Inc v Marlboro Shirt Co SA Ltd 1991 2 SA 720 (A); see also De Villiers Van Zyl and Another v Oelofse and Others (31878/2013) [2013] ZAGPPHC 204 (21 June 2013); see also Aristolinx Investments CC t/a ECDC Sasol Garage v Siyongwana (1496/2016) [2016] ZAECMHC 50 (10 October 2016)