Pine Glow Investments (Pty) Ltd and Others v Brick-On-Brick Property and Others

• Jurisdiction: South Africa
• Judge: Legodi JP
• Judgment Date: 18 December 2018
• Citation: 2019 (4) SA 75 (MN)
• Hearing Date: 18 December 2018
• Docket Number: 2856/2018
• Counsel: S du Toit SC (with CL Robertson) for the fifth respondent (Puma Energy South Africa (Pty) Ltd). Names of other counsel not supplied.

Legodi JP:

[1] B In this application the applicants seek relief against the first to fourth respondents of relevance, couched as follows:

'2.

Declaring that the judgments and order of Liphoto AJ dated 15 August 2018 and the order of Legodi JP dated 26 September 2018 are operational and excutable.

3.

Declaring each of the first, second, third and fourth respondents to C be in contempt of the orders handed down in the above Honourable court by the Honourable Madam Acting Judge Liphoto AJ on 15 August 2018, his Honourable Mr Judge President Legodi J on 26 September 2018 (all under case No 349/2018 and Case Management Order and Directives issued by his Honourable Mr Judge President Legodi J on 20 August 2018 (under case No 808/2018); D

4.

Committing the third and fourth respondents to such period of incarceration or such other sanction as the above Honourable Court deems appropriate in respect of the contempt to the orders of the above Honourable Court, referred to in Prayer 3 above;

5.

Ordering the first and second respondents to, with immediate E effect comply with orders of court, referred to in prayer 3 above;

6.

Directing the first and second respondents and any other respondent who may oppose this application, jointly and severally, the one to pay the other to be absolved, to pay the costs of this application, on the scale as between attorney and client . . . .'

[2] F The application is opposed by the first to fourth respondents and the fifth respondent, namely Puma Energy South Africa (Pty) Ltd, which entered the fray at a very late stage, after the dispute between the applicants and the first to fourth respondents had ensued for some time.

[3] G In resisting the application the respondents raised defences which can be summed up as follows: One, that the order of 15 August 2018 and a rule nisi confirmed on 26 September 2018 by Liphoto AJ and Legodi JP, respectively, and referred to in prayer 3 above, were automatically suspended by rescission application launched by the fifth H respondent and by an application for leave to appeal launched by the first to fourth respondents on 27 September 2018. Two, that since January 2018 when Puma took possession of the site based on what is referred to in the petroleum-distribution industry as a 'head lease agreement', the first to fourth respondents played no role, nor did they perform any activity on site that can be construed as wilful disregard for the court I orders handed down on 15 August 2018 and 26 September 2018, respectively.

[4] However, during the hearing of this matter counsel for the applicants indicated that they would no longer be proceeding with prayers 3 and 4 J of the notice of motion until further notice. The only prayers that were

Legodi JP

pursued were prayer 2 and related prayer 5 insofar as they related to the A order of Liphoto AJ handed down on 15 August 2018.

[5] The defence to prayers 2 and 5 is based on a few High Court decisions which suggested general automatic suspension of a court order by delivery of an application for rescission of any court order. Therefore the question to be determined is whether an application for rescission of B judgment launched by the fifth respondent automatically suspended Liphoto AJ's order handed down on 15 August 2018.

[6] The ace card for the respondents appears to be what was decided in the case of Peniel Developments (Pty) Ltd and Another v Pietersen and Others, [1] where Vally J in para 12 held: C

'There is no reason why this rule developed in the common law should not be extended to applications for rescission of judgments. And, if I am wrong in my judgment that the Chief Justice had not exceeded his powers by so doing — as the court in United Reflective Converters [*] found - then there was nothing in law that prevented that court from D extending the common-law rule to applications for the rescission of a judgment and order. . . . Hence, if the judgment in United Reflective Converters is correct then there is a need to develop the common law in this area. This has already been done. In Khoza v Body Corporate Ella Court this court, facing the difficulty posed by the judgment in United Reflective Converters, decided to overcome it by extending the common-law E rule (of suspending the operation of a judgment upon the noting of an application for leave to appeal) to the noting of an application for rescission.'

[7] The rescission application in the present proceedings was launched F by the fifth respondents and the first to fourth respondents find cover based on the rescission...