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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO:  UM 36/2018

In the matter between:

SWART JOHANN                                                         Applicant

and

DEWALD RYAN                                                           First Respondent

BALJU VIR LANDDROSHOFRISTRIK

VAN BRITS                                                                  Second Respondent

HUUR BEHUISING TRIBUNAAL: NOORDWES     

PROVINSIE, GEHOU TE BRITS                                Third Respondent

DIE VOORSITTER VAN DIE HUUR BEHUISING             

TRIBUNAAL, GEHOU TE BRITS (M KHAUOE)      Fourth Respondent

DIE ONDER-VOORSITTER VAN DIE HUUR           

BEHUISING TRIBUNAAL, GEHOU TE BRITS         Fifth Respondent

DIE LID VAN DIE HUUR BEHUISING TRIBUNAAL,

GEHOU TE BRITS (G SELEKA)                               Sixth Respondent

DIE LID VAN DIE HUUR BEHUISING TRIBUNAAL,

GEHOU TE BRITS (D MASILO)                                 Seventh Respondent

DATE OF HEARING                                         :         13 MARCH 2018

DATE OF REASONS FOR JUDGMENT          :        15 MARCH 2018

COUNSEL FOR THE PLAINTIFF                    :         MR. WESSELS

COUNSEL FOR THE DEFENDANT                :         MR. DEWALD RYAN

                                                                                      (IN PERSON)

REASONS FOR ORDER / JUDGMENT

HENDRICKS J

Introduction

[1]        On the 13^th March 2018, after listening to the submissions made by Mr. Wessels on behalf of the Applicant and Mr. Dewald Ryan, the first defendant who appeared in person and upon perusal of the affidavits and documents filed, I granted an order in the following terms:

“1. THAT:       Order granted in terms of paragraphs 1, 2 & 3 of Part A and Paragraph 5 of Part B of the Notice of Motion.

2. THAT:        Costs are reserved pending the finalisation of Part B of the Notice of Motion.

3. THAT:        Reasons for this order will be handed down on Thursday, 15th March 2018.”

Here follows the reasons for the order / judgment granted.

[2]        The applicant contend that he is the owner of a farm at Bultfontein, in the Madibeng District. A house situated on the farm was sublet to the first respondent in terms of a rental agreement concluded between them. The applicant and his estranged wife experienced some turbulence in their marriage relationship which ended up in a divorce. It is contended by the applicant that his ex-wife sold the farm illegally. The dispute in this regard is still unresolved. The first respondent contended that the rental agreement he had with the applicant expired and that he entered into a new lease agreement with a company called Nadonix (Pty) Ltd, which was formed by the ex-wife of the applicant. The first respondent also refused to pay any rental to the applicant.

[3]        A dispute about the failure to pay the rental due was referred to the Rental Housing Tribunal, North West Province (the third respondent). Thereafter, the applicant took the law into his own hands and spoliated the first respondent by locking up the goods of the first respondent. On the 25^th August 2017 the third respondent made an award against the applicant for the return of the goods belonging to the first respondent. The goods of the first respondent were returned by the applicant. According to the first respondent, not all the goods were returned and some of the goods were even damaged to the extent that it was unusable.

[4]        The first respondent placed a value on the goods that were damaged and / or not returned and apply for an award from the third respondent. The third respondent granted an award for the amount claimed. Armed with this award, the first respondent approached the Magistrate Court, Brits for the issuing of a warrant of execution against the movable property of the applicant, which was duly issued. The applicant learned about the warrant of execution and attempted in vain that it be suspended. The goods of the applicant were attached by the sheriff (second respondent) and is scheduled to be sold in execution tomorrow, the 14^th March 2018.

[5]        This necessitated the launch of this application on an urgent basis for the following relief as set out in the Notice of Motion:

“NEEM KENNIS DAT die bogenoemde applikant aansoek sal doen by hierdie Agbare Hof op 13 MAART 2018 om 10:00 of so gou moontlik daarna vir 'n bevel in die volgende terme:

GEDEELTE A

1.    Dat die nie-voldoening aan die reëls gekondoneer word en die aangeleentheid as dringend aangehoor word in terme van reel 6(12)(a).

2.    Die lasbrief vir eksekusie in die landdroshof van Brits onder saaknommer 2984/2017, wat die 1^ste Respondent teen die Applikant uitgereik het, opgeskort word en dat die geregtelike verkoping van 14 Maart 2018 dus verbied word hangende die uitslag van die bedes soos versoek in Gedeelte B.

3.    Dat die 2^de Respondent gevolglik verbied word om enige van die roerende bates soos uiteengesit in die kennisgewing van verkoping in eksekusie vir 14 Maart 2018 te verwyder of op veiling te verkoop hangende die uitslag van die bedes soos versoek in Gedeefte B.

4.    Dat die 1^ste Respondent die koste van die aansoek op n prokureur en eie kliënt skaal betaal indien die 1^ste Respondent nie skriftelik toestem tot bede 2 voor 7 Maart 2018 nie en die veiling geskeduleer vir 14 Maart 2018 gekanselleer het nie.

GEDEELTE B

5.    Dat die bevinding van die 3^rde Respondent gedateer 25 August 2017 hersien en tersyde gestel word.

6.    Verdere en/of alternatiewe regshulp.”

It is apparent that the relief sought is to stay the warrant of execution and prohibit the sale in execution scheduled to take place on 14^th March 2018, pending the finalization of a review application to be launched to review and set aside the decision of the third respondent dated 25^th August 2017.

[6]        That the matter is indeed urgent is beyond question. The intended sale in execution is scheduled to take place on 14^th March 2018, the day after the date on which this urgent application is enrolled before this Court. The relief claimed, as already alluded to earlier, is to prohibit the pending sale in execution and incidental thereto to also stay the warrant of execution. The merits of the review application was not before this Court, as this stage, for adjudication. That will follow in due course.

[7]        It is quite apparent that the relief claimed is for an interim interdict pending a review application to be launched. The requirements for an interim interdict was stated in Johannesburg Municipal Pension Fund v City of Johannesburg, 2005 (6) SA 273 (W) on page 282 at paragraph [8] as follows:

“The requirements for the granting of an interim interdict are set out in Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) at 372E-G. They are (a) that the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right (Bester v Bethge 1911 EDL 18; Malan v Dumas 1920 CPD 357; Collett v Priest 1931 EDL 27; Ncongwane v Molorane 1941 OPD 125; Stern and Ruskin NO v Appleson 1951 (3) SA 800 (W); Meyer NO v Netherlands Bank of SA Ltd and Another 1961 (1) SA 578 (GW); Steenkamp v Steenkemp 1966 (3) SA 294 (T); Bricktec (Pty) Ltd v Pantland 1977 (2) SA 489 (T)): (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief. There are different formulations of the approach to be taken in granting interim relief. In Van Woudenberg NO v Roos 1946 TPD 110 Malan J held at 114 that it was sufficient for an applicant in interdict proceedings pendente lite to satisfy the Court that he had a reasonable prospect of success in the main action although there was no definite preponderance of probabilities in his favour:

‘Such a view appears to be in accord with the language of Innes JA in Setlego’s case [1914 AD 221], namely, “in cases where the right asserted by the applicant though prima facie established, is open to some doubt." ... In the vast majority of cases it would be difficult to determine on application where the probabilities lie without resorting to viva voce evidence which, in most cases, would be co-extensive with the evidence which would be led in the main action. Such hearing may involve protracted proceedings. The granting of interdicts on application will be virtually restricted to cases where the facts are not in dispute, which obviously appears to me to be undesirable.’

In Mariam v Minister of the interior and Another 1959 (1) SA 213 (T) Roper AJ (as he then was) accepted the traditional approach as set out in Webster v Mitchell 1948 (1) SA 1186 (W) (but see Goof v Minister of Justice and Another 1955 2 SA 682 (C) at 688) and said, while dealing with the construction of the word ‘hold’ as used in specific legislation, that he did not have to make a final decision on the meaning of the word:

‘I have merely to consider whether the applicant has made out a case sufficiently strong to apply the rule in the case of Webster v Mitchell; therefore when I express a view in regard to the interpretation in part of the statute, I am expressing a prime facie view; it would be impossible to express anything else. In view of the fact that this case will come to trial at some time, when the Court which tries the case will have to make a final decision as to the meaning of the phrase as set out by the Legislature, if I were to purport to give a final decision as to the meaning of any part of the Act, I would be taking upon myself to pre-judge the trail, and I certainly have no intention of doing so. It is sufficient to say that I have expressed my view upon the legal argument put before me… namely, that prima facie there is substance in the argument.”

(At 218 C-E),

In Fourie v Olivier en ‘n Ander 1971 (3) SA 274 (T), however, Viljoen J limited this approach to disputes of fact and held that where a legal issue can dispose of the issue the court hearing the application for relief should decide the matter and not leave it for the trail court to adjudicate (at 285C-H). The approach adopted by Franklin J in Beecham Group Ltd v B-M Group (Pty) Ltd 1977 (1) SA 50 (T) at 55H appears to be different:

‘Although there are In the present papers no substantial disputes of fact, these grounds of objection raise difficult questions of law, to which detailed and thorough argument was devoted by both sides. These are, however, matters to be dealt with at the trial, and it is both unnecessary and undesirable that I should give my views on them at this stage. It is sufficient for me to say for present purposes that I have carefully considered all the arguments which have been advanced, but that I do not think that on the respondent’s side they are such as to disturb my strong prima facie view that the patent is valid.’

(See also Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C) 497-498 where Blignault AJ reconciles the two approaches by opining that ordinary’ questions of law should be decided at the interim stage (at 498 F-G). Heher J in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1995 (2) SA 813 (W) (1995 (4) BCLR437) at 824I-825D said that:

‘[T]he phrase “a prima facie case though open to some doubt” as an element of the justification for the grant of an interdict requires a preliminary assessment of the merits of the applicant's case... The test enunciated in American Cyanamid Company v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 (HL) should be recognised as of equal validity with the “prima facie case though open to some doubt”, test when deciding whether interim relief should be granted in constitutional cases.’

The approach in Cyanamid is that the applicant for interim relief should show that ‘the claim is not frivolous or vexatious: in other words that there is a serious question to be tried’. Heher J's conclusion is the following (at 832I-833 B):

‘1.      A prima facie right though open to some doubt exists when there is a prospect of success in the claim for the principal relief albeit that such prospect may be assessed as weak by the Judge hearing the interim application.

2.       Provided there is a prospect of success, there is no further threshold which must be crossed before proceeding to a consideration of the other elements of an interim interdict.

3.       The strength of one element may make up for the frailty of another.

4.       The process of measuring each element requires a holistic approach to the affidavits in the case, examining and balancing the facts coming to such conclusion as one may as to the probabilities where disputes exist.’”

[8]        The applicant has established a prima facie right to the relief claimed. There is a well-grounded apprehension of irreparable harm if the interim relief if not granted and the applicant ultimately succeed in establishing his right. I am of the view that the balance of convenience favours the granting of the requisite relief to the applicant. The applicant stands to lose quite substantially in the event the review court finds in his favour if the sale in execution is to proceed. Some of the goods that were attached has not only monetary value attached to it but also sentimental value to which no amount of money can be attached. The first respondent can still be compensated. Should the review application fail, the sale in execution can still be held in future. There is no other satisfactory remedy available to the applicant at this stage but to apply for an interim interdict to stop the sale in execution.

It is for the aforementioned reasons amongst others, that I granted the order referred to in paragraph 1, supra.

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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