Jai Hind EMCC CC T/A Emmerentia Convenience Centre v Engen Petroleum Limited South Africa: In re: Engen Petroleum Limited South Africa v Jai Hind EMCC CC T/A Emmerentia Convenience Centre (A5030/2022; 11752/2020) [2022] ZAGPJHC 551; 2023 (2) SA 252 (GJ) (4 August 2022)

Jai Hind EMCC CC T/A Emmerentia Convenience Centre v Engen Petroleum Limited South Africa: In re: Engen Petroleum Limited South Africa v Jai Hind EMCC CC T/A Emmerentia Convenience Centre (A5030/2022; 11752/2020) [2022] ZAGPJHC 551; 2023 (2) SA 252 (GJ) (4 August 2022)

The court found that Engen had established exceptional circumstances justifying immediate enforcement of the order under section 18(3) of the Superior Courts Act. Engen's inability to recover holding over payments after the appeal process, due to Jai Hind's lack of assets and the time-bound nature of the business, constituted irreparable harm. Jai Hind's claim of irreparable harm was rejected, as its financial distress and potential business extinction were ordinary risks of litigation and contemplated in the settlement agreement. The appeal was moot due to the parties' agreement for Jai Hind to vacate the premises, but the court exercised its discretion to decide the matter given its...

Citation
[2022] ZAGPJHC 551
Parties
Appellant: Jai Hind EMCC CC T/A Emmerentia Convenience Centre; Respondent: Engen Petroleum Limited South Africa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 August 2022
Case Number
A5030/2022; 11752/2020
Procedural Posture
Civil Appeal / Appeal Against Section 18(3) Order Under Superior Courts Act
Outcome
Appeal dismissed. Costs awarded to respondent, including costs of two counsel.
Judges
Sutherland DJP, Adams J, Thompson AJ
Legal Topics
Superior Courts Act Section 18, Exceptional Circumstances, Irreparable Harm, Holding Over Penalty, Eviction, Urgent Appeal Procedure
Civil Procedure Commercial and Corporate Superior Courts Act Section 18 Exceptional Circumstances Irreparable Harm Holding Over Penalty Eviction Urgent Appeal Procedure

Case Brief

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Parties

Jai Hind EMCC CC T/A Emmerentia Convenience Centre

Appellant

Engen Petroleum Limited South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal Against Section 18(3) Order Under Superior Courts Act

Legal Issues

  1. 1 Whether a proper case was made out to put the initial order into operation pending appeal.
  2. 2 Whether the appeal is moot and the implications thereof.
  3. 3 What procedure applies to section 18(4) appeals, especially regarding urgency and Rule 49.

Ratio Decidendi

The court found that Engen had established exceptional circumstances justifying immediate enforcement of the order under section 18(3) of the Superior Courts Act. Engen's inability to recover holding over payments after the appeal process, due to Jai Hind's lack of assets and the time-bound nature of the business, constituted irreparable harm. Jai Hind's claim of irreparable harm was rejected, as its financial distress and potential business extinction were ordinary risks of litigation and contemplated in the settlement agreement. The appeal was moot due to the parties' agreement for Jai Hind to vacate the premises, but the court exercised its discretion to decide the matter given its...

Court Disposition

Appeal dismissed. Costs awarded to respondent, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The appellant shall bear the respondent's costs, including the costs of two counsel.