Red Meat Industry Forum of South Africa and Others v Orion Cold Meat Storage (Pty) Ltd (22704/2011) [2011] ZAWCHC 460 (10 November 2011)

JUDGMENT

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 22704/2011

DATE: 10 NOVEMBER 2011

In the matter between:

THE RED MEAT INDUSTRY FORUM OF SA ….........................1st Applicant

SOUTH AFRICAN MEAT INDUSTRY COMPANY ….................2nd Applicant

IGSHAAN ABRAHAMS N.O. …...................................................3rd Applicant

JUNAID ADAM N.O. …................................................................4th Applicant

ISMAIL ALLIE N.O. …..................................................................5th Applicant

EBRAHIM BHAM N.O. ….............................................................6th Applicant

ZUBAIR BAYAT N.O. …..............................................................7th Applicant

SAYED AHMED EBRAHIM FAKROODEEN N.O. …..................8th Applicant

FASIHUL HAQUE GOOLAM NABEE N.O. ….............................9th Applicant

SHAFIQ AHMED HAJEE N.O. …..............................................10th Applicant

RIAZ JALAL N.O. …..................................................................11th Applicant

ABDUL ALEEM MIA N.O. …....................................................12th Applicant

OMAR FAROUK MOOLA N.O. …............................................13th Applicant

MOHAMED SAEED NAVLAKHI N.O. …..................................14th Applicant

YUSUF ISMAIL PATEL N.O. ….................................................15th Applicant

MHOMED SULIMAN N.O. …....................................................16th Applicant

ISMAIL MOOSA VALLEY N.O. ….............................................17th Applicant

and

ORION COLD MEAT STORAGE (PTY) LTD …...........................Respondent

ROGERS. AJ:

I have before me this morning an urgent application which was launched yesterday, presumably served at some stage during the course of yesterday, for hearing at 10 o'clock this morning. It is a matter in which two associations concerned with the meat industry in South Africa are the first and second applicants and where the remaining applicants are trustees of the South African National Halaal Authority Trust, which is concerned with the certification of food products as being halaal compliant. The respondent is an importer and distributor of meat and other food products.

The founding papers in the application make extremely serious allegations concerning the conduct of the respondent in regard to the repackaging of meat and other food products and their distribution under knowingly false descriptions. These include false descriptions as to the class and/or quality of the foodstuff and also as to whether it is halaal compliant. The allegations, if true, disclose wide scale fraud and the violation of various statutory provisions relating to the inspection and distribution of food products. Essentially the applicants, in terms of the amended notice of motion which was handed to me a short while ago, seek an immediate interim interdict to prohibit the respondent from acting in a way which the applicants allege the respondent has acted, pending the urgent determination of an interim interdict to be heard towards the end of next week.

The respondent, understandably, has not had time to file an answer to the founding papers. The respondent did, through its managing director, Mr Patrick Gaertner, file a short affidavit, to which, inter alia, was annexed an undertaking that pending the determination of the application the respondent would not act in any of the manners in which the applicants seek to interdict it from acting. The parties have agreed that the case is urgent, both wish it to be dealt with urgently and have agreed on a timetable for the filing of affidavits next week and for the hearing of the matter on 17 November.

The short point before me today is whether I should postpone the case in accordance with the agreed timetable simply on the strength of the respondent's undertaking, or whether I should actually make an urgent interim interdict in essentially the same terms as the undertaking which would operate at least until next week.

Mr Epstein, who appeared for the applicants, emphasised the very serious nature of the allegations. He submitted that the making of a court order would give comfort to the community that the court itself, by its decree, has made an order to prevent the respondent from acting as it allegedly has acted. He submitted that persons who buy products from the respondent would want to know that they have the comfort of a court order that the products they are buying are not products supplied to them in violation of the interdict.

Mr Duminy, on the other hand for the respondent, submitted that, for all practical purposes, the respondent has been brought to court without

any opportunity to answer these very serious allegations. It has promptly tendered an undertaking. The respondent, he submitted, would be prejudiced by the granting of an order as that would be a signal that the court has accepted the applicants' allegations and would be interpreted, among the public, as being at least some initial confirmation that the respondent has acted wrongly.

I think it is necessary to emphasise that on the one hand there can be no doubt that if the respondent has acted as alleged in the founding papers, it is an extremely serious matter and that the rights of many people will have been infringed. Apart from aspects of fraud and the violation of statutory provisions, fundamental matters concerning the health of consumers in

South Africa and the religious sensibilities, particularly of members of the Muslim community, will be engaged. I can understand that if these allegations in due course were proved, it would be a cause of great distress and outrage, and that the members of the community would expect the court to act strongly.

I by no means underestimate those concerns. However, it is just when there are allegations which cast a party in a very poor light that the court must be vigilant to observe those safeguards which exist to enable people to protect themselves and defend themselves against serious allegations. It operates in the criminal field and it operates in the civil field and the principle is that the court should be very wary about making orders against any party who has not had the opportunity to respond. From the very short affidavit which Mr Gaertner has filed it appears that the respondent is intending to deny all the essential elements of the allegations against it.

I think there is also merit in Mr Dummy's submission that by making an order at this stage a signal will be sent to the public that in some sense the respondent has already been judged, even if only at a preliminary stage. There may be some circumstances where the facts of the case make at least some

preliminary order of that kind unavoidable, but the question is whether the present circumstances present such a case.

In the first place we have the fact that the respondent has tendered an undertaking in terms equivalent to the interdict which the applicants are seeking. If I contrast the undertaking with a corresponding order, I am not sure that there is going to be a material difference between the two. If the respondent has tendered an undertaking and, within the very short period of time that will elapse before this matter is heard at the end of next week, were to act contrary to the terms of the undertaking, I think the inference would almost be irresistible that it had offered the undertaking fraudulently. I refer here naturally not to the legal representatives, but to the respondent company itself that is offering the undertaking. Therefore, if it acted contrary to the undertaking, there would be a strong case against the respondent and those who control it of fraud, if it were to act in violation thereof.

Secondly, although the matter has understandably not been fully ventilated before me, if I record the fact of the undertaking which has been tendered in open court, there is certainly very respectable authority of which I am aware, that a violation of that undertaking will itself be contempt of court in the same way that a violation of an interim interdict would constitute contempt of court.

Then there is the further consideration if one attempts to assess the likelihood of the conduct in fact occurring over the next week, despite the terms of the undertaking, that the applicants' allegations have now come to light. If they are true, the respondent is aware that the applicant has evidence of them. There has already been an Anton Piller order granted two days ago which has been executed, pursuant to which, if there is evidence of wrongdoing, it has presumably been collected. With the spotlight so firmly on the respondent, and coupled with the, perhaps, unfortunate publicity or tenor of the publicity which the case has already attracted, it strikes me as farfetched to suppose that the respondent will act contrary to its undertaking. Alternatively, if it were to act contrary to its undertaking I do not think the likelihood that it would refrain from doing so if instead an order were granted would be very much different.

As to the fact that potential purchasers from the respondent would be comforted by a court order, I must confess that, for myself, do not really see that. If they are not confident now of buying product from the respondent, I am not sure that they will be more comforted by a court order than an undertaking. Presumably if they are not confident, they will either not buy or they will themselves assess and test the product that they buy.

It may be, in one sense, that the granting of an interim interdict would not be prejudicial to the respondent in this sense that it would only be prevented by a court order from doing that which it is in any event not allowed to do and which it is prepared to undertake that it will not do. However, it seems to me here that we are concerned, to some extent, with the public effects and public perceptions of a court order. The prejudice of which Mr Duminy, for the respondent, complains, is the prejudice to its client's reputation which flows from the fact that an order of the court has been made against it. I think that is real prejudice and as against that, and for the reasons I have briefly tried to indicate, I am not sure, in the face of the undertaking, that the prejudice to the interests which the applicants represent are such that the court must make an order effectively ex parte and without the opportunity for any answer.

As matters stand, the respondent has agreed to a timetable which requires it to file answering affidavits under considerable pressure and the matter will be heard, I very much hope, by a court at the end of next week. I should indicate in that regard that naturally I cannot bind the duty judges next week, or the Judge President, to provide a judge who will definitely be able to hear the case, but I give my indication in these reason, that in my view the matter is undoubtedly urgent and it is my sincere wish that the Judge President will be able to allocate a dedicated judge to hear the case.

Accordingly, in the exercise of my discretion I have come down in favour of preserving the right of every litigant in this court to be heard before an order is made against him, even if it does involve compressing that litigant's rights in terms of the time they would ordinarily have to deal with a case. The order of the court is thus as follows:

1. I record, firstly, that the respondent has, through counsel in open court and in an affidavit filed with this court, tendered an undertaking in the form of annexure PG2 to the affidavit of Mr Gaertner, dated 10 November 2011.

2. The application is postponed for hearing on 17 November 2011.

3. A rule nisi is issued in terms of paragraph 2 of the amended notice of motion, calling upon the respondent on 17 November 2011 to show cause why an interim interdict should not be granted in the terms prayed in paragraph 2.1 of the amended notice of motion.

4. The respondent is to file its answering affidavits, if any, by close of business on 14 November 2011.

5. The applicants are to file their replying papers, if any, by noon on 16 November 2011.

6. All questions of costs will stand over for later determination.

ROGERS AJ