T & M Canteen CC v Charlotte Maxeke Academic Hospital and Another (36830/2021) [2021] ZAGPJHC 519 (14 October 2021)

REPUBCIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED:

CASE NO: 36830/2021

DATE: 14th October 2021

In the matter between:

T & M CANTEEN CC

Applicant

and

CHARLOTTE MAXEKE ACADEMIC HOSPITAL

First Respondent

NYEMBE, MAKHOSINI

Second Respondent

Coram: Adams J

Heard: 12 October 2021 – The ‘virtual hearing’ of the application was conducted as a videoconference on Microsoft Teams.

Delivered: 14 October 2021 – This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to CaseLines and by release to SAFLII. The date and time for hand-down is deemed to be 14h30 on 14 October 2021.

Summary: Application – for the implementation of an order pending an appeal – the requirements for the granting of an order in terms of s 18 of the Superior Courts Act 10 of 2013 considered – applicant bears the onus to prove the existence of ‘exceptional circumstances’ and should discharge the onus imposed by s 18(3) to show irreparable harm – application granted.

ORDER

(1) In terms of section 18(1), read with section 18(3), of the Superior Courts Act, Act 10 of 2013, it is ordered that the operation and execution of the Judgment and Order of this Court under case number 36830/2021, dated the 14th of September 2021, shall not be suspended pending the decision of the respondents’ application for leave to appeal and, in the event of them being granted leave to appeal, the outcome of such appeal.

(2) The first and second respondents, jointly and severally, the one paying the other to be absolved, shall pay the applicant’s costs of this application.

JUDGMENT [APPLICATION ITO SECTION 18 (1) AND (3)]

Adams J:

[1]. On the 14th of September 2021 an order was granted by this Court (per Molahlehi J) in favour of the applicant against the first and second

respondents in terms of which the respondents were ordered inter alia to restore the applicant’s occupation (‘peaceful and undisturbed possession’) of the canteen premises situate at Level 5 (Block 2), Charlotte Maxeke Academic Hospital, Jubilee Street, Parktown, Johannesburg (‘the premises’). The respondents applied for leave to appeal the said judgment and the application for leave to appeal was delivered on the 15th of September 2021. The said application is presently still pending and awaiting the allocation of a date for the hearing thereof.

[2]. In this application, the applicant applied for an order directing that the operation and execution of the judgment and order of the 14th of September 2021 shall not be suspended pending an application for leave to appeal or the hearing of the appeal by the respondents in the event of them being granted leave to appeal the said judgment.

[3]. The application is premised on the facts mentioned in the main judgment, notably that the applicant urgently needs to be afforded free and undisturbed possession of the premises as it is presently suffering a commercial, as well as a reputational loss as a result of being deprived by the respondents of access to the canteen. These damages, so the applicant avers, increases by the day. The conduct complained of is also not new, so the applicant contends, as there have been many occasions in the past when the first respondent made itself guilty of similar unlawful actions.

[4]. The applicant alleges that on a daily basis it suffers damages, which is as a direct result of the conduct displayed by the spoliating respondents. Conversely, so the applicant contends, there is no irreparable harm to be suffered by the respondents. The premises are presently standing empty, so there cannot possibly be any talk of damages to be suffered by the respondents. The possibility of them being held liable – whether civilly or criminally – on the basis that they permitted access to premises which pose a safety risk is, so the applicant submits, non-existent as such conduct would be underpinned by a court order.

[5]. The first and second respondents (‘the respondents’) oppose the application. They contend that there is no pressing need for the implementation of the order, as the applicant will not suffer any irreparable harm – it has not been in occupation of the premises since April 2021, so the

respondents contend, so how can the applicant now claim that it will suffer damages. The fallacy in this argument on behalf of the respondent is self-evident and devoid of any merit.

[6]. The respondents also contend that the application is not urgent and that it does not meet the requirements of sections 18 (1) and 18 (3) of the Superior Courts Act, Act 10 of 2013. I shall revert to this contention later on in the judgment. Suffice to say, at this juncture, that this bald allegation by the plaintiff lacks merit. In my view, an application to immediately implement a court order based on the mandament van spolie, is by its very nature urgent. If not, unlawful conduct on the part of a spoliator will be allowed to continue with impunity, which cannot possibly be countenanced.

[7]. The respondents also contend that the second respondent is not the owner of the property and is not capable of allowing the applicant to occupy the premises. The first respondent is a non-existent entity which is incapable of carrying out the order and it is legally impossible and impermissible for the applicants to be allowed to occupy the premises, as this would be illegal in terms of the by-laws of the City of Johannesburg. The premises, so the respondents contend, have not been declared lawfully suitable for occupation and operation of the type of business that the applicant conduct on the premises.

[8]. Not much needs to be said about these overly technical defences, which, in my view, are without merit. For starters, these are all issues which have already by decided in the main application. It does not behove the respondents to rehash the same defences, which this court has already found to be without merit. Importantly, as submitted by the applicant, restoring the occupation of the premises by the applicant cannot possibly be unlawful if it had been authorised by a Court of Law. In any event, these defences are not of assistance to the respondents in an application in terms of s 18 (1) and (3) of the Superior Courts Act. They do not speak to or address the requirements of the section, but are rather directed at the merits of the main application.

[9]. There can be little doubt that, howsoever, one views this matter, the respondents would suffer no harm if the order of the 14th of September 2021 is implemented right away. The respondents certainly do not make out a case to that effect in their papers, other than their desperate attempt to do so with reference to safety considerations.

[10]. Section 18 of the Superior Courts Act provides as follows: -

‘(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2) … … …

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

(4) If a court orders otherwise, as contemplated in subsection (1)—

(i) the court must immediately record its reasons for doing so;

(ii) the aggrieved party has an automatic right of appeal to the next highest court;

(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv) such order will be automatically suspended, pending the outcome of such appeal.’

[11]. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the Court must decide accordingly.

[12]. It was found in the main Judgment that the respondents have acted unlawfully and in total disregard of the law and the rule of law. Importantly, the status quo ante which should be restored, lest lawlessness be condoned, is that the applicant was in lawful occupation of the premises and was running a canteen from the said premises – albeit until Covid and then a devastating fire intervened. That was until the respondents took the law into their own hands through self-help and unceremoniously evicted the applicant when it refused it access to the premises after things normalised.

[13]. The aforegoing, in my view, constitute exceptional circumstances. The point is that a party who, through unlawful means, deprives an occupier of the occupation of premises, can hardly be heard to complain that the position is to be retained pending the appeal. Should the order not be put in operation with immediate effect, it would result in a situation arising where the respondents – having unlawfully spoliated the applicant’s erstwhile peaceful and undisturbed possession and occupation of the premises – would benefit from their unlawful conduct. My view is that the court should guard against sending out a message to the public at large that it is alright to act unlawfully.

[14]. I find myself in agreement with the applicant’s submissions that exceptional circumstances exist which entitles it to an order that the operation of the previous court order shall not be suspended.

[15]. Moreover, the continued deprivation of the occupation of the property by the applicant will result in immeasurable damages being suffered by it. As stated by the applicant, the business it runs from the premises is at a standstill. There are also perishables on the premises, which could result in further losses for the applicant. This will directly impact on the brand and reputation which the applicant enjoys.

[16]. In that regard, the applicant avers that there are large quantities of perishable food left at the premises, which will become expired,

spoiled and worthless. Additionally, the foodstuff will start to rot and smell, which in turn will result in losses for the applicant

worth hundreds of thousands of rands, estimated at about R300 000. Once the food items start to perish and rot, so the applicant

contends, it will also pose a serious potential health hazard for the members of the public visiting the hospital. The perishables include things like fruit juices, dairy products, chocolates, biscuits, various refrigerated vegetables, condiments and other food products, Simba crisps and other snacks and meat, fish and potato chips worth a substantial sum of money.

[17]. On the premises there are perishables, some of which would have already expired or started to rot and, with every day that passes, there will be a greater likelihood of a resultant health hazard within a hospital. This will also undoubtedly result in a financial loss of the applicant, which increases as the days go by.

[18]. For all of these reasons, I am of the view that this application is urgent. Furthermore, I believe that the applicant has demonstrated that exceptional circumstances exist which entitles it to an order that the operation of the previous court order shall not be suspended

[19]. Should the relief claimed in this application not be granted, the rights of the applicant will remain impugned and it will not be able to obtain suitable redress in due course. Conversely, if the order is granted, the respondents would suffer no harm whatsoever, let alone harm which can be said to be irreparable.

[20]. I am therefore satisfied that on a balance of probabilities the applicant will suffer irreparable harm if the relief sought in this application is not granted. On the other hand, it is unlikely that the respondents will suffer irreparable harm.

[21]. Having regard to the facts in this matter, I am satisfied that the applicant has demonstrated exceptional circumstances entitling it to an order implementing the previous order pending leave to appeal and the appeal. In addition, the applicant has, in my judgment,

shown, on a balance of probabilities, that the respondents will not suffer irreparable harm.

[22]. The application must therefore succeed.

Order

In the circumstances the following order is made:

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

HEARD ON:

12th October 2021 – in a ‘virtual hearing’ during a videoconference on Microsoft Teams

JUDGMENT DATE:

14th October 2021 – judgment handed down electronically

FOR THE APPLICANT:

Adv B Bhabha

INSTRUCTED BY:

Sali Attorneys, Bedfordview

FOR THE FIRST AND SECOND

RESPONDENTS:

Adv F J Nalane SC

INSTRUCTED BY:

Mogaswa & Associates Inc, Roodepoort