Mokwaphakedi and Others v City of Johannesburg Metropolitan Municipality and Others (34438/19) [2019] ZAGPJHC 449 (1 November 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER : 34438/19

In the matter between:

MOKWAPHAKEDI, TEBOGO GODFREY

First Applicant

MBEKI, NYAMEKA

Second Applicant

MOTLHATSWI, OWAGENG ERNEST

Third Applicant

MODISANE, GLORIA BONOLO

Fourth Applicant

MOKOENA, LERATO

Fifth Applicant

and

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY

First Respondent

CITY OF JOHANNESBURG PROPERTY

COMPANY (SOC) LTD

Second Respondent

PIRATES SPORTS CLUB NPC

Third Respondent

J U D G M E N T

VAN DER BERG AJ

[1] This is an urgent application for an interim interdict, pending the outcome of a review application or an application for a declaratory order to be heard in the normal course.

[2] During or about February 2014 the first respondent, the City of Johannesburg Metropolitan Municipality (“the Municipality”) represented by the second respondent, the City of Johannesburg Property Company (SOC) Ltd (“JPC”) concluded a notarial deed of lease (“the lease agreement”) with the third respondent, the Pirates Sports Club (“Pirates”). (The first and second respondents will collectively be referred to as “the respondents”.)

[3] In terms of the lease agreement the Municipality leases property in Greenside (“the property” or “the premises”) to Pirates.

[4] The applicants work under the aegis of an entity referred to as WastePreneurs. WastePreneurs is described in the founding affidavit as being an entity without legal personality. WastePreneurs recycles waste from a depot on the property with the consent of Pirates since about March 2016.

[5] The Municipality avers that the occupation of WastePreneurs on the property constitutes a breach of the lease agreement, and that it has validly terminated the lease agreement in April 2019. It has now addressed a letter to Pirates demanding the vacating of the Pirates depot by WastePreneurs, and that the lease agreement will “remained cancelled” until Pirates had complied with this (and other) demands. Pirates in turn sent a letter to WastePreneurs on 12 September 2019, demanding that it vacates the

portion of the property which it occupies within 60 days.

[6] The applicants then launched the present application, which is in two parts. In Part A the applicants seek an interim interdict on an urgent basis in the following terms:

“2. Interdicting and restraining the respondents or any other person or entity from putting the decision embodied in the notice from the second respondent to the third respondent, dated 17 April 2019 (“the first decision”), the decision embodied in the notice from the second respondent to Fasken, the attorneys of the third respondent, dated 9 September 2019 (“the second decision”), and the decision of the first and second respondents refusing to extend the time period reflected in the latter notice (“the third decision”), into effect pending the outcome of the application for the relief contained in Part B.

3. Directing that the conduct of putting the decision into effect that is interdicted in paragraph 2 includes, but is not limited to:

3.1 the vacating, by the applicants or WastePreneurs, of the portion of erf 1319 in Greenside Township (“the property”) that is let by the first respondent to the third respondent in terms of a notarial deed of lease concluded in February 2104 (“lease agreement”);

3.2 the removal of any equipment, advertising structures and material erected on the leased premises, and the requiring that any damage to the leased property caused by the installation or removal of such structures, be repaired at the expenses of the applicants or WastePreneurs; and

3.3 the cancellation of the lease agreement.”

[7] In Part B of the notice of motion, the applicants seek final relief in the normal course in the following terms:

“1. Reviewing and settling aside the decisions;

2. Ordering that the applicants and WastePreneurs are permitted to remain in occupation of the property at the discretion of the third respondent and subject to their compliance with all laws relating to the property;

3. Alternatively to paragraph 2, directing that the matter be remitted to the first and second respondents for reconsideration by them, together with such directions as the Court deems fit;

4. Alternatively to paragraphs 1, 2 and 3, or in addition to any relief granted in terms of the aforesaid paragraphs, declaring that the occupation of the property by the applicants and WastePreneurs as at the date of the Court’s order is in accordance with the lease agreement;

5. Insofar as the Court is of the view that section 62(1) of the Local Government Municipal Systems Act 32 of 2000 is an internal remedy in terms of section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), exempting the applicants from the obligation to exhaust such internal remedy in terms of section 7(2)(c) of PAJA;”

[8] The applicants base their review on the provisions of the Promotion of Administrative Justice Act No 3 of 2000 (“PAJA”). In the alternative, the applicants seek a declaratory order in terms of section 21(1)(c) of the Superior Courts Act 10 of 2013 to the effect that the occupation of the property by the applicants does not constitute a breach of the lease agreement.

[9] The respondents contend that PAJA is not applicable in that “the decisions” which the applicants seek to impugn do not constitute “administrative action” in terms of PAJA and/or that the applicants have failed to show that they have locus standi to bring a review application. The respondents also submit that the applicants do not have locus standi to seek a declaratory order, as they were not a party to the lease agreement.

TEST FOR INTERIM INTERDICT

[10] The requirements for an interim interdict are trite. An interim interdict will be granted if the applicant establishes a clear right or, alternatively, at least a prima facie right; a well-grounded apprehension of irreparable harm if the interim interdict is not granted and the ultimate relief is eventually granted; and that the balance of convenience favours the granting of the interim relief; and that the applicant has no other satisfactory remedy.[1]

[11] There is a difference of opinion whether the prima facie requirement is also applicable to legal issues where the facts are not in dispute.[2] It has been held in some cases that an interim interdict is not appropriate when the facts relating to a final order are not in

dispute. In such a case the court will proceed to decide the legal issue pertaining to the main dispute. It will then issue or refuse a final order.[3] In other cases it has been held that there may be circumstances in which the court will issue an interim interdict even if the facts pertaining to the main dispute are not in dispute.[4]

[12] The approach in this division has generally been that a judge dealing with an interim interdict is not obliged to arrive at final view on a disputed legal point but should only express a prima facie view, or make a finding that the applicant has reasonable prospects of success in the main application or trial.[5] I will deal with the legal disputes in this matter on that basis.

[13] The approach in Fourie v Olivier (i.e. to resolve the legal issues and grant a final interdict) can in any event not be adopted in this matter:

1. There are a number of disputes of fact (even if only raised as bald denials by the respondents);

2. The applicants have utilised the provisions of rule 53 in the main application (Part B). It is not clear how the respondents will react to it as they deny that any administrative action was taken, but it will be premature to finally dispose of this matter before the respondents have reacted to the demand that they furnish a record and the reasons.

3. The parties also expressly stated that they will only deal with Part A, and under those circumstances the court cannot grant a final

interdict.[6]

[14] Proof of locus standi in an interim interdict does not stand on a different footing from other legal issues; the applicants only need to show prima facie they have locus standi.[7] (Where locus standi is challenged on the basis of an applicant’s lack of capacity to act, or an applicant’s lack of authority, other considerations may apply.)

[15] The following propositions are also trite: Where the applicant cannot show a clear right, and more particularly where there are disputes of fact relevant to a determination of the issue as to whether the applicant's right is prima facie established, though open to some doubt, a court's approach is to take the facts set out by the applicant, together with any 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 of the main action. The facts set out in contradiction by the respondent should then be considered and if serious doubt is thrown upon the case of the applicant, it cannot succeed in obtaining temporary relief.[8]

THE OPERATION OF WASTEPRENEURS: APPLICANTS’ VERSION

[16] The operation of WastePreneurs is described in the founding papers as follows: Some 110 waste-pickers or trolley-pushers (referred to in the founding affidavit as “wastepreneurs”, written in lower case) collect recyclable waste from various suburbs in Johannesburg and convey it on trolleys to the Pirates depot, where it is sorted, weighed and sold to recycling businesses. WastePreneurs supply the trolleys to the wastepreneurs. The wastepreneurs are paid per kilogram of waste they supply, by WastePreneurs, out of the money earned from such sales. By virtue of the central location of the Pirates depot the wastepreneurs are able to make approximately four trips a day to the depot, thereby

substantially increasing their earnings, whereas, if they were to take the waste they collect to the next-closest depot, in Newtown,

central Johannesburg, or to the depot in Alexandra, they would only be able to make one trip a day and would earn much less. A

wastepreneur would earn R70 to R80 a day if he or she makes one trip a day, as opposed to earning R290 to R320 a day if he or she can make four trips a day.

[17] The applicants aver that WastePreneurs does not make a profit (this is denied in the answering affidavit). The applicants allege that the shortfall is met by ADreach, an entity who assists and sponsors WastePreneurs.

[18] The applicants make the point in the founding affidavit that by providing premises for the depot for free, Pirates is providing space that would cost a large amount of money to rent in the area. Pirates does not charge a rental to WastePreneurs.

[19] The applicants say that by providing the facilities and organisation at the Pirates depot, as well as the trolleys used by the wastepreneurs, WastePreneurs creates jobs and helps to alleviate the poor.

WASTEPRENEURS: THE FIRST RESPONDENT AND SECOND RESPONDENTS’ VERSION

[20] The respondents (i.e. the Municpality and JPC) contend that the real applicant should be a registered company called WastePreneurs KZN and that the present the applicants are not the proper applicants. At this stage of the proceedings the applicant’s version that WastePreneurs KZN is not involved in the Pirates operation has to be accepted.

[21] The respondents also contend that the activities of WastePreneurs contravene zoning law and is therefore a breach of clause 13 of the lease agreement. The respondents also allege that the activities WastePreneurs have caused a nuisance to the Greenside residents, but the evidence in support thereof is hearsay and rather slim.

[22] The zoning and the nuisance allegations are disputed, but in any way do not detract from the applicants’ right to be heard (assuming PAJA is applicable, an issue dealt with below).

TERMS OF THE LEASE AGREEMENT

[23] The lease agreement which was referred above inter alia had the following terms:

1. The Municipality leases the property in Greenside and Parkhurst, as set out in the lease agreement, to Pirates (clause 2).

2. The lease shall be valid for a period of 20 years from the commencement date, being 1 March 2014 (clause 4.1).

3. Clause 12 Use of the Leased Property, provides:

“12.1 The property is leased to the lessee for the following purposes: Any sporting activities, recreation facilities, catering and banquet facilities and all related and allied functions, including recreation and marketing stalls and provision of community services and festivals.

12.2 The property may be used by the lessee for these purposes only, and for no other purposes whatsoever, unless otherwise approved in writing by the lessor and signed by both parties, which approval shall not be unreasonably withheld.

12.3 That the lessee shall ensure that there is no exclusivity and must be open to all communities to access and utilise the facilities and that the properties are only utilised for the intended purposes as set out in 12.1 above, as per the Constitution of Pirates.”

4. Clause 25 Cession, Assignment and Sub-letting, provides:

“25.1 The lessee shall not cede its rights under this agreement.

25.2 Subject to any existing sub-leases at the time of the signing of the lease agreement by the lessor and the lessee, the lessee shall not be entitled to sub-let the property, provided consent was obtained for the existing sub-leases and such existing sub-leases are identified in an Annexure to this agreement.”

5. The lessor is entitled to cancel the lease agreement by written notice to the lessee if, inter alia, the lessee commits a material breach of the agreement and fails to remedy the breach within 30 days after receiving written notice from the lessor to do so (clause 26.1.2).

DECISIONS REFERRED TO IN NOTICE OF MOTION AND TERMINATION OF THE LEASE AGREEMENT

[24] On 15 June 2018 JPC wrote to Pirates and stated that the Municipality exercised its rights in terms of clause 26 of the lease agreement and gave written notice of the breach by Pirates that had to be remedied within thirty days if the Municipality was not to cancel the agreement. It was alleged that Pirates had assigned and/or sublet a portion of the leased premises to WastePreneurs/ADreach which constituted a breach of the lease agreement.

[25] On 29 June 2018 Pirates invoked the dispute clause (clause 23 of the lease agreement). Although letters were exchanged and meetings held between the representatives of JPC, Pirates and WastePreneurs and their attorneys, the dispute resolution provisions in clause 23 of the lease agreement was not followed.

[26] On 17 April 2019 JPC in a letter to Pirates terminated the lease agreement and stated that Pirates had breached the terms of the lease agreement by subletting the leased premises to ADreach or WastePreneurs. The letter of 17 April 2019 required ADreach/WastePreneurs to vacate the property within seven days of receipt of the letter. This letter is in the notice of motion referred to as “the first decision.”

[27] On 10 May 2019 Pirates’ attorneys replied that the notice of termination was premature in that the formal dispute resolution process set out in clause 23 in the lease agreement had not been followed.

[28] On 9 September 2019 JPC wrote a letter to Pirates’ attorneys and demanded that Pirates, within sixty days of receipt of the letter, cancel any assignment and/or sublease agreement or arrangement that was granted to WastePreneurs/ADreach. JPC stated that the lease agreement would “remained cancelled” until Pirates had complied with these demands. This letter is in the notice of motion referred to as “the second decision.”

[29] On 12 September 2019 Pirates sent a letter to WastePreneurs in which it demanded that WastePreneurs vacate the portion of the property which it occupies within sixty days of the letter.

[30] On 16 September 2019 the applicants’ attorneys requested that JPC and/or the Municipality and Pirates to hold the respective notices to Pirates and the WastePreneurs in abeyance, pending the outcome of court proceedings. However, the requested undertaking was not forthcoming. The respondents’ refusal to extend the time periods is in the notice of motion referred to as “the third decision.”

APPLICANTS’ REVIEW APPLICATION: PAJA

Whether the Municipality’s decisions constitute administrative action

[31] In Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA) at paragraphs [20] to [22] (“Cape Metro”), the SCA held that the cancellation of a contract between a municipal council and a private firm was not administrative action.

[32] In Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) (“Logbro”), the SCA held that the court in Cape Metro had not purported to give a general answer to the question whether a public body is required to act fairly when exercising powers derived from contract:

“That question was left open…. The case is thus not authority for the general proposition that a public authority empowered by statute to contract may exercise its contractual rights without regard to public duties of fairness. On the contrary: the case establishes the proposition that a public authority’s invocation of a power of cancellation in a contract concluded on equal terms with a major commercial undertaking, without any element of superiority or authority deriving from its public position, does not amount to an exercise of public power.”[9]

[33] The court distinguished Cape Metro on the basis that in Logbro the administrator was undoubtedly acting from a position of superiority by virtue of it being a public authority, as evidenced by the fact that it had dictated the tender conditions. The court concluded that the decision to call for new tenders was administrative action even if it were sourced in contract. In Logbro the court also noted that the tender and employment cases were not relevant to the facts in Cape Metropolitan because of the equal power of the contracting parties in that case.[10]

[34] In South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA) (“SanParks”) Navsa JA and Davis AJA held that there is no bright-line test for determining whether administrative principles intrude in relation to a contract involving an organ of state and a private party. Each case has to be decided on its own merits and courts will

exercise a value judgment.[11]

[35] As there is no “bright-line test”, a number of cases with similarities to this matter will be examined as they may offer some guidance.

[36] In Bullock NO and Others v Provincial Government North West Province and Another 2004 (5) SA 262 (SCA) it was held that the disposal of a right in state property (the right in that case was a servitude) constituted administrative action for purposes of section 33 of the Constitution (as it then was).

[37] In Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA) (“Grey’s Marine”) Nugent JA used the following consolidated and abbreviated form of the definition of “administrative action” in PAJA:[12]

“Administrative action means any decision of an administrative nature made . . . under an empowering provision [and] taken . . . by an organ of State, when exercising a power in terms of the Constitution or a provincial constitution, or exercising a public power or performing a public function in terms of any legislation, or [taken by] a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect. . . .”

[38] In Grey’s Marine the state had leased a portion of the quayside of Hout Bay harbour to Bluefin. The three appellants were concerned that the development of the portion of the quayside leased to the third respondent would cause traffic congestion on the quayside, deprive other tenants and visitors of necessary parking and manoeuvering space and impede access to their premises and to the waterside. The appellants accordingly approached Provincial Division for an order reviewing and setting aside the first respondent's decision to lease the property to the third respondent. The application was dismissed.

[39] On appeal Nugent JA dealt with the question whether the Minister’s decision by letting the property constituted administrative action and said:

“[26] It was submitted on behalf of the Minister that because the State is the owner of the property that is now in issue, and has all the ordinary rights of ownership, it may use the property as if it were a private owner and its conduct in doing so is not administrative action. While it is true that the State enjoys the private rights of ownership it was pointed out in Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening)[13] that those rights are to be asserted within the framework of the Constitution. What is in issue in the present case is not the use to which State ownership is being put but rather the manner in which those rights of ownership have been asserted.”

[40] After referring to Bullock, Nugent JA held:[14]

“The Minister's decision was made in the exercise of a public power conferred by legislation, in the ordinary course of administering the property of the State, and with immediate and direct legal consequences (at least for Bluefin) and I see no reason to differ

from the conclusion in Bullock that it constituted administrative action.”

[41] In Kouga Municipality v De Beer and Another 2008 (5) SA 503 (E) the appellant municipality leased certain premises to the respondents which the respondents utilised for purposes of running a restaurant. The lease agreement contained a clause to the effect that the respondents could not cede the lease without the appellant's prior written consent. The Municipality withheld its consent. The respondents then brought an application in the High Court to review the Municipality’s refusal to consent to the cession. The High Court found that the appellant's decision constituted “administrative action” as defined in PAJA. On appeal the full bench (per Chetty J) pointed out that the Constitution has enhanced the status of a municipality but accords it powers which, like other organs of State, can be reviewed by the courts.[15]

[42] The learned Judge then continued[16]:

“[8] In considering the competing submissions advanced on behalf of the parties the trial court accepted that under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) conduct only amounts to administrative action if it involves the exercise of public power or the performance of a public function in terms of any legislation. After an examination of the suite of legislative provisions, in particular the Local Government: Municipal Finance Management Act 56 of 2003 and the Supply Chain Management Policy Regulations, the judge concluded that the decision whether or not to consent to a cession of a lease involving municipal property amounts to administrative action. It undoubtedly was.”[17]

[43] The lease agreement in casu was concluded in terms of section 79(18)(a)(i) of the Local Government Ordinance 17 of 1939 which provides that the Council may let immovable property of the Council.

[44] In Joseph and Others v City of Johannesburg and Others 2010(4) SA 55 (CC) at paragraphs [22] to [25] a municipal provider provided electricity to the landlord of a residential building in terms of a contract. Even though there was no contract between the service provider and the tenants of the building, it was held that it would be artificial to pretend that the contractual relationship between him and the service provider had no bearing on the tenants. The case was therefore governed not merely by contract, but by “administrative-law relationships beyond the law of contract.”

[45] In Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd [2008] ZASCA 112; 2009 (1) SA 163 (SCA) at paragraph [18] the SCA held that once a tender had been awarded, the relationship between the parties was governed by the principles of contract law to the exclusion of administrative law. The fact that the tender board relied on authority derived from a statutory provision to cancel the contract on behalf of the government, did not detract from this principle.

[46] However, Thabiso was distinguished in SanParks by Dumbuza JA:

“The pivotal issue in Thabiso was the limited factual determination into whether the facts relied on by the government in cancelling a tender could sustain the cancellation under the relevant clause in the contract. Thabiso did not concern the effect that the exercise of a power sourced in a contract would have on the public and its interests.”[18]

[47] There are other cases which also support a finding that the Municipality’s decisions in this matter constitute administrative action.[19] In my view, even though all the cases are possibly not harmonious, the weight of authority supports a conclusion that the decisions

sought to be impugned by the applicants constitute administrative action, or at the very least there are reasonable prospects that the review court will find that they do.

Rights or legitimate expectation of applicants

[48] Section 3(1) of PAJA reads:

“Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.”

[49] Thus, in Grey’s Marine, although the court held that the Minister’s decision did constitute administrative action, the appellants were non-suited

because it has not been shown that any rights of any of the appellants (or of any other person) have been adversely affected by

the decision.[20] The court also held that it has not been shown that any of the appellants (or any other person) had a legitimate expectation that they would be consulted before the property was let.[21]

[50] There is a reasonable prospect that the review court may find that the applicants had a legitimate expectation to have been consulted before the Municipality took a decision to have WastePreneurs evicted from the property. Three aspects are relevant.

[51] Firstly, the applicants aver that WastePreneurs was an initiative under the now defunct Jozi@Work program. This program was aimed at reducing poverty and unemployment by empowering community enterprises, in part by spending the City’s budget through this system, and including waste collection, separating and processing as one of the focus areas. The Jozi@Work program was later cancelled by the Municipality. The respondents denied this averment, but neither party has given any substance to its version. For purposes of the interim application, the version of the applicants must be accepted.

[52] In my view such a program would establish a legitimate expectation that the Municipality would support the WastePreneurs initiative at Pirates, and not seek to have it abolished without prior consultation.

[53] Secondly, on 19 September 2018 the MMC for Economic Development, Ms Knott, attended a meeting with persons representing WastePreneurs to discuss the way forward for the WastePreneurs depot at Pirates. It was agreed that a meeting was to be held with Pickitup to establish whether and how WastePreneurs fits into its waste management plan for the future. (Pickitup also operates from the Pirates premises but is not involved in recycling.) It was envisaged that if agreement was reached by Pikitup and WastePreneurs, an application would be submitted to JPC for the use of the Pirates property. The MMC then instructed all (including JPC) to withhold from taking further legal action whilst the process between WastePreneurs, Pikitup and the Municipality was followed. Nothing came of it as Pikitup was continually unavailable. However, this meeting created a legitimate expectation that the Municipality or JPC would not simply take legal action to have WastePreneurs evicted from the Pirates premises without further consultation.

[54] Thirdly, before the notice to remedy the breach of contract dated 15 June 2018 was sent to Pirates, the Municipality (through the agency of JPC) communicated directly with WastePreneurs, by sending a notice on 26 April demanding that WastePreneurs vacate the premises and claiming that its occupation was unlawful. Thereafter there was an exchange of correspondence between the Municipality and WastePreneurs and its representatives. The Municipality did not take active steps to evict WastePreneurs, and this created a legitimate expectation on the part of WastePreneurs that it would be consulted before further or renewed steps to evict them were taken. [22]

[55] It is therefore not necessary to examine whether the applicants’ constitutional rights were infringed by the Municipality’s

decision as suggested in the founding affidavit and in argument.[23]

Grounds of review

[56] The applicants advance a number of grounds of review. It is not necessary to deal with all of them.

[57] Once it is accepted that the Municipality’s decisions constitute administrative action, and that the applicants had a legitimate

expectation in terms of section 3(1) of PAJA, the decision was procedurally unfair in that the applicants were not given a reasonable opportunity to make representations,[24] and they have not been given a clear statement of the administrative action.[25]

[58] There is a reasonable prospect that the review court may find that relevant considerations were not taken into account, or that the decision was arbitrary or irrational.[26] For example:

(i) The Municipality or JPC did not take into consideration that WastePreneurs’ operations at Pirates was for the public good;

(ii) The decisions to effectively close down WastePreneurs’ operation is in conflict with the views of other functionaries within the Municipality structure. The MMC for Economic Development and the MMC for Environment proposed that legal action be halted in order to allow for WastePreneurs to be accommodated within the Municipality’s waste management plan.

Review : conclusion

[59] In summary, there are reasonable prospects that the court of review will find that the applicants have made out a case to review and set aside the Municipality’s decisions referred to in the notice of motion.

APPLICANTS’ CLAIM FOR A DECLARATORY ORDER

[60] The applicants have a second string to their bow, claiming additionally or alternatively in Part B of the notice of motion for a declaratory order to the effect that the occupation of the property by the applicants and WastePreneurs is in accordance with the lease agreement. As I have found that there are reasonable prospects of success for the review, it is not necessary to deal with this ground.

INTERIM INTERDICT

[61] The applicants have met all the requirements for an interim interdict. I have already dealt with the applicants’ prima facie right.

[62] The applicants have a well-grounded apprehension of irreparable harm if the interim interdict is not granted. The applicants will either face unemployment or earn substantially less from their trolley-pushing in that they will have to push the waste to another location.

[63] The balance of convenience overwhelmingly favours the granting of the interim interdict, as there can be no prejudice to the first and second respondents should the interim interdict be granted.

[64] There is no other satisfactory remedy.

URGENCY

[65] I ruled at the hearing that the matter should be dealt with on an urgent basis. My reasons in brief were:

[66] It is clear that a review in the normal course would not have protected the applicants’ rights as the notice from Pirates to vacate the premises would expire on or about 12 November 2019. It would also have been unwise or irresponsible if the respondents had waited for an application for eviction to be brought by the first, second or third respondents.

[67] There were earlier threats to evict WastePreneurs. However, this is not a case of self-created urgency, as those threats have been effectively countered at the time. The applicants faced a new threat by virtue of the September 2019 notices.

COSTS

[68] The court dealing with the main application would be a better position to determine costs, which may in turn depend on whether the applicants are successful in obtaining final relief in the normal course. Costs are therefore reserved.

ORDER

[69] The following order is made.

1. The respondents or any other person or entity are interdicted from implementing or putting into effect the following decisions pending the outcome of the application for the relief contained in Part B of the notice of motion under the above case number:

(a) the decision embodied in the notice from the second respondent to the third respondent, dated 17 April 2019; and

(b) the decision embodied in the notice from the second respondent to Fasken, the attorneys of the third respondent, dated 9 September 2019; and

(c) the decision of the first and second respondents refusing to extend the time period reflected in the latter notice.

2. The decisions which are the subjects of the interdicts referred to in paragraph 1 include:

2.1 the vacating, by the applicants or WastePreneurs, of the portion of erf 1319 in Greenside Township (“the property”) that is let by the first respondent to the third respondent in terms of a notarial deed of lease concluded in February 2014 (“the lease agreement”);

2.2 the removal of any equipment, advertising structures and material erected on the leased premises, and the requiring that any damage to the leased property caused by the installation or removal of such structures, be repaired at the expenses of the applicants or WastePreneurs;

2.3 the cancellation of the lease agreement.

3. Costs are reserved.

____________________

APPEARANCES

For the applicant:

Adv A Kemack SC, with him

Adv A Pantazis

Instructed by:

Sim & Botsi Attorneys Inc

For the first and second respondents:

Adv J Blou SC, with him

Adv R Peterson

Mohamed Randera & Associates

Date of hearing: 28 October 2019

Date of judgment: 1 November 2019

[1] Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 - 90; Gool v Minister of Justice and Another 1955 (2) SA 682 (C) at 687 - 688C - E; Henbase 3392 (Pty) Ltd V Commissioner, South African Revenue Service, and Another 2002 (2) SA 180 (T)

[2] National Gambling Board v Premier, KwaZulu-Natal, and Others [2001] ZACC 8; 2002 (2) SA 715 (CC) paragraph [52]; Prest, The Law and Practice of Interdicts, p 59

[3] Fourie v Olivier en 'n Ander 1971 (3) SA 274 (T) at 284G - 285H.

[4] Tony Rahme Marketing Agencies SA (Pty) Ltd and Another v Greater Johannesburg Transitional Metropolitan Council 1997 (4) SA 213 (W) at 216C

[5] Tony Rahme (supra); Beecham Group Ltd v B-M Group (Pty) Ltd 1977 (1) SA 50 (T); Henbase (supra); Johannesburg Municipal Pension Fund v City of Johannesburg and Others 2005 (6) SA 273 (W) 2005 (6) SA 273 (W), paragraphs [8] and [9]; Zulu v Minister of Defence and Others [2005] ZAGPHC 16; 2005 (6) SA 446 (T); Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP), paragraph [3] and paragraph [32]. See also: Geyser v Nedbank Ltd and Others: In re: Nedbank Ltd v Geyser 2006 (5) SA 355 (W) where Van Oosten J said that “…a legal issue should only be decided at the interlocutory stage of the proceedings of it would result in a final disposal of either the matter as a whole or a particular aspect thereof.”

[6] Municipal Workers Retirement Fund v Kopanong Local Municipality (A67/2019) [2019] ZAFSHC 159 (19 September 2019)

[7] Molapi v Magashale [2007] ZAFSHC 45 (4 June 2009), paragraphs [61] and [65] to [66]. See also: Verstappen v Port Edward Town Board and Other 1994 (3) SA 569 (D) at 576

[8] Webster v Mitchell (supra)

[9] At paragraph [10]. See also South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA), paragraph [25]; Hoexter, Administrative Law in South Africa, p 185

[10] Logbro, paragraph [9]; See also Sanparks, paragraph [25]

[11] Paragraphs [34] to [39],

[12] At paragraph [21]

[13] 2001 (3) SA 1151 (CC)

[14] At paragraph [28]

[15] Paragraph [7]

[16] Paragraph [8]

[17] Hoexter, Administrative Law in South Africa, refers to the unreported judgment of the court a quo as Gerber v Coega Municipality (SECLD) unreported case 2669/2006 of 29 August 2006. I have not been able to locate a copy of this judgment.

[18] Sanparks. Paragraph [26]

[19] MEC, Department of Education, North West v KC Productions CC [2009] ZANWHC 10 (5 March 2009); Polokwane Local Municipality v Granor Passi (Pty) Ltd [2019] ZASCA 5 (1 March 2019)

[20] Paragraph [30]

[21] Paragraph [32]

[22] See the discussion of legitimate expectation in Sanparks, paragraph [27]

[23] The applicants referred to the following sections of the Constitution: section 9 (right to equality), section 21 (the right to freedom of movement and the right to reside anywhere in the Republic), and section 22 (the right to choose their trade, occupation or profession freely).

[24] Section 3(2)(b)(ii) read with section 6(2)(c) of PAJA

[25] Section 3(2)(b)(iv) read with section 6(2)(c) of PAJA

[26] Section 6(2)(c)(iii) and (vi) and section 6(2)(f)(ii) of PAJA.