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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

  CASE NO: 2024-017060

(1)      REPORTABLE:   NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: YES

DATE 9 December 2024

SIGNATURE

In the matter between:

 

TEMPELHOF FILLING STATION (PTY) LTD                                               Applicant

 

and

 

THE CONTROLLER OF PETROLEUM PRODUCTS                           1^st Respondent

 

SOUTH AFRICAN NATIONAL ROADS AGENCY SOC LTD             2^nd Respondent

 

MUSINA LOCAL MUNICIPALITY                                                       3^rd Respondent

 

EAGLE CREEK INVESTMENTS 154 (PTY) LTD                                4^th Respondent

 

MMH LOUW ACCOUNTING ASSOCIATES 1070 CC                       5^th Respondent

 

SHELL SA DOWNSTREAM (PTY) LTD                                              6^th Respondent

 

JUDGMENT 

 

(The matter was heard as an urgent application in open court and judgment was reserved. After hearing counsel for the parties, judgment was uploaded onto the electronic case file of the matter on CaseLines and the representatives of the parties so informed of the judgment. The date of uploading of the judgment onto the electronic file of the matter on CaseLines is deemed to be the date of the uploading thereof onto CaseLines)

 

Before: HOLLAND-MUTER J:

 

[1] The Applicant approached the urgent court on 26 November 2024 for an order for contempt of court of an interim urgent order (Rule Nisi) by the 4^th and 5^th Respondent, and rather surprisingly, also to find that the attorneys of the 4^th and 5^th Respondents be held in contempt of the court order. Nyathi J discharged the Rule Nisi on 11 October 2024 and also dismissed the application for “an interdict” in terms of which the Rule Nisi was issued.

 

[2] Only the 4^th and 5^th Respondents opposed the application.

 

[3] The Applicant avers that although the rule nisi was discharged by Nyathi J, the application for leave to appeal revived the rule nisi. The Applicant also in the alternative seeks an interim interdict in terms of which the fourth and fifth Respondents be interdicted from continuing with any construction activities and related activities pending the finalisation of the review application. Such sought interim interdict is similar to the interim interdict discharged by Nyathi J earlier.

 

[4] The Applicant thereafter, while the matter was pending in the urgent court during the week of 25 November 2024, served and filed a ‘Provisional Replying affidavit together with a new application to refer the matter to oral evidence. This application was uploaded onto the electronic file of the matter on CaseLines and served on the State Attorney’s Office and attorneys on behalf of the 4^th and 5^th Respondents via email on Monday 25 November 2024. The Applicant indicated its intention to rely on the answering affidavit of its attorney of record filed on 20 November 2024.

 

REFERRAL FOR ORAL EVIDENCE:

 

[5] The further relief sought for a referral for oral evidence is almost as wide as the horizon in that the Applicant intends issuing subpoenas in respect of to date hereof unidentified members, officers and employees for the 4^th and 5^th Respondents; the owners of managers of the firm trading as “X-Fuels”; the officers and employees of the Musina Local Municipality; the accountant Mr B Jooste; officers and employees of SANRAL; Tenants and occupiers of Parts 6, 7 & 8 of the Farm Uitepas 2, Musina.

 

[6] The general rule is that applications be determined on the evidence contained in the affidavits even where disputes of facts arose from the various affidavits. A final order may be granted by a court if the facts averred in the applicant’s affidavits that have been admitted by the respondent, together with the facts alleged by the respondent, justifies such an order. See Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, 5^th Ed Vol 1 468 to 470.

 

[7] This is a robust process where a court decides on the affidavits before it and the wellknown Plascon-Evans Rule is applied. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A) It is only when a court cannot decide on the versions before it that a matter may be referred for oral evidence. The referral to oral evidence does require a careful and strict listing of what is referred to oral evidence. The way requested by the applicant, using the terminology used by the Applicant itself, a wild undirected ‘concoction’ to beat about the bush and wait to see what may emerge from uninvolved employees, officers and tenants mentioned. There is no logic why the Applicant departed on this wild goose chase.

 

[8] If the dispute of fact is such that the court cannot with any accuracy conclude that the probabilities in favour of the applicant’s case should be accorded any more weight than that of the respondent’s affidavits, it would be incumbent upon the applicant to ask for the hearing of oral evidence so as to establish the evidence which will enable the court to find upon.

 

[9] The present application for referral to oral evidence in my view does not pass muster for referral. The application does not identify any dispute of facts or legal points to be ventilated during oral evidence but amounts to nothing more of casting a wide net across the trouble waters with a spes to make a catch but the only catch likely to be made is that of a red herring.

 

[10] To envisage that witnesses from the local municipality and SANRAL will reveal any relevant evidence up front is wishful thinking. The application for oral evidence is stillborn and has no possibility of any success and is dismissed with costs.

 

ALTERNATIVE PRAYER FOR AN INTERIM INTERDICT:

 

[11] The alternative prayer for an interim interdict is nothing else to obtain similar relief as previously, the previous interim interdict discharged by Nyathi J. This court, as a court of similar standing than that of Nyathi J, cannot hear the matter as his decision of no jurisdiction stands and this court is bound thereto. To find the opposite will amount to this court ursurping appeal jurisdiction with regard to the order of Nyathi J. A court of second instance should decide whether Nyathi J was correct.

 

[12] This court cannot entertain an alternative for interlocutory relief already discharged by Nyathi J. the alternative prayer for an interim order, similar to the discharged interim interdict and based on the same evidence is dismissed with costs.

 

URGENCY:

 

[13] Urgent applications are governed by Rule 6(12)(2) of the Uniform Rules of Court. it is trite since Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (T/A Makin Furnitures 1977(4) SA 135 (W) at 137 A-E what the ascending order of urgency is. The crux is that papers be filed (uploaded onto CaseLines) with the Registrar by the preceding Thursday for the following Tuesday to enable the Urgent Court Judge to prepare the urgent roll for the week. The application for oral evidence fails this test as well. The court dealt with the belated application for oral evidence uploaded onto CaseLines on Monday 25 November 2024. The matter was not ripe for hearing at all.

 

[14] The court is well aware of the further guidelines from East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd (11/33767)[2011] ZAGP JHC 196 dd 23 September 2011 of the absence or not of substantial redress in the normal course of applications to consider departing from the degree of relaxation of time periods when deciding on urgency. The abuse of relaxation of time frames is the most frequent disregarded rule by practitioners setting down matters in the urgent court for flimsy and inadequate reasons. The Applicant’s application does not meet the requirements to abridge time frames to be heard urgently. It amounts to an attempt to ‘jump’ the row.   

 

CONTEMPT OF COURT:

 

[15] The application for review was issued during February 2024; the rule nisi was discharged on 11 October 2024, and the application for leave to appeal was filed on 14 October 2024.  The subject issue for the leave to appeal application is the discharge of the rule nisi.

 

[16] The Applicant argued that the filing of the application for leave to appeal suspends the “immediate effect” of the judgment by Nyathi J and results that the interim interdict remains enforceable as if not discharged. The argument is based on counsel’s interpretation of section 18 (2) of the Superior Court Act. The argument was further that the noting of the leave to appeal against Nyathi J’s judgment “revives” the rule nisi and that the Respondent’s misread the dictum in MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd 2000(4) SA 746 SCA [6].

 

[17] Herbstein & Van Winsen, The Civil Procedure of the High Courts of South Africa 5^th ed Vol 2 p 1482-1483 echoes the same as in Erasmus:Superior Court Practice Vol 2 2ed A2-66-67 “When an interim order is discharged, the noting of an appeal against the discharge does not ‘revive’ or ‘perpetuate’ the order discharged”. This was decided by the SCA in MV Snow Delta Serva Ship Ltd v Discount Toonage Ltd supra. Harms JA held on 752 A-B “Where an interim order is not confirmed, irrespective of the wording used, the application is effectively dismissed and there is likewise nothing that can be suspended. An interim order has no independent existence but is conditional upon confirmation by the same court (albeit not the same judge) in the same proceedings having heard the other side”.

 

[18] The argument tendered on behalf of the Applicant has no merit and there can be no call for contempt by the Respondents and their attorneys.

 

[19] The court is of the view that the application cannot succeed.

 

COSTS:

 

[20] Costs are in the discretion of the court. The court will consider various aspects before arriving at an appropriate order. I am of the view that it was necessary for the respondents to employ two counsel in the application. They appeared on behalf of the 4^th and 5^th Respondents. The content of the application was not the normal day to day issues. The junior counsel is entitled to half the fee of senior counsel. See Rule 69(2) and A Kruger & W Mostert, Taxation of Costs in the Higher and Lower Courts, A Practical Guide, Lexis-Nexis p 76 within the discretion of the Taxing Master.

 

ORDER:

 

The application is dismissed with costs, costs to be on Scale B.  The costs of two counsel is included.

             

 

 

HOLLAND-MUTER J

JUDGE OF THE PRETORIA HIGH COURT

 

 

Matter was heard on 27 November 2024

Judgment uploaded onto CaseLines on 9 December 2024

 

 

Appearances:

On behalf of the Applicant:	Adv B G Savvas
On behalf of the 4th & 5th Respondents:	Adv J Hershenohn SC
	Adv R de Leeuw

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