Twin City Trading (Pty) Ltd and another v Morakile and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mfenyana J
• Judgment Date: 12 September 2023
• Citation: 2023 JDR 3406 (NWM)
• Hearing Date: 23 February 2023
• Docket Number: UM09/2023
• Court: North West Division, Mahikeng

Mfenyana J:

Introduction

[1]

On 26 January 2023 I granted an order, as a sequel to an urgent application launched by the applicants which I disposed of on the same day. As is apparent from the notice of motion, the applicants sought certain interdictory relief against the respondents, on the grounds set forth in the applicants’ founding affidavit.

[2]

Having applied my mind to the facts of the application, I considered

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it to be urgent, and granted an order interdicting the respondents from:

“2.1

Trespassing upon the First Applicant’s property, Erf 5146 (a portion of Erf 2098) Huhudi situated in Naledi Local Municipality, Registration Division I.N, Province of North West (“the subject property”);

2.2

Intimidating, harassing and/ or threatening the Applicants, Applicants’ employees or Applicants’ contractors in any manner whatsoever;

2.3

Assaulting the Applicants, applicants’ employees or Applicants’ contractors in any manner whatsoever;

2.4

In any way whatsoever, hampering or frustrating construction activities on the subject property;

2.5

Causing any damage whatsoever to the Applicants or the Applicants’ contractors’ property, vehicles, machinery, equipment and / or tools;

2.6

Causing any damage to the fence and walls surrounding the subject property or any of the construction works on the subject property;

2.7

Confiscating any of the Applicants’ or the Applicants’ contractors’ property, vehicles, machinery, equipment and or tools;

2.8

Blocking or restricting access to any entrances or access roads to the subject property in any way whatsoever;

2.9

Enticing members of the community to resort to violence and disrupt the construction activities on the subject property;

2.10

Gathering closer than 100m from the boundary of the subject property;

3.

A mandamus is issued against the Fifth and Sixth Respondents (the SAPS to implement and enforce the contents of paragraph 2 above against the First to Fourth Respondents, with the assistance, if required, of the security companies employed or to be employed by the Applicants and arrest and detain any person acting in contravention of paragraph 2 above;

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4.

The First to Fourth Respondents are ordered to pay the costs of the application on the scale as between attorney and client, jointly and severally, the one paying, the others to be absolved.”

[3]

The application proceeded on an unopposed basis as, having filed a notice to oppose the 1st to 4th Respondents never filed any answering affidavits.

[4]

In granting the above order, I did not provide written reasons therefor. Without seeking reasons, on 15 February 2023 the first to third respondents jumped the gun and filed an application for leave to appeal against the order.

Application for leave to appeal

[5]

As aforesaid, the application for leave to appeal was filed on 15 February 2023. The notice of application for leave to appeal sets out various grounds of appeal, the essence of which is that the Court misdirected itself in various respects relating, inter alia, to the following:

(i)

Not considering that the Naledi Local Municipality had a direct interest in the dispute and the Municipal Manager was not before Court.

(ii)

Not considering that the matter was not properly before Court as the respondents were not afforded “adequate time to consult a legal representative and file properly motivated opposing papers”.

(iii)

Not considering that the first to third respondents were

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not part of the gathering and the pictures, had nothing to do with the events of 20 January 2023 described in the founding affidavit, “as these (events) were not arranged and/or were directed to the applicants” (sic), were not part of the pictures, and that no criminal case was registered against the 1st to 4th respondents.

(iv)

Not considering the fact that the affidavit by the first applicant was commissioned on 24 January 2024 when according to the first applicant, on 23 January 2023 there was peace and harmony, as set out in the founding affidavit (paragraphs 4.51, 4.52 and 4.53). Notably, paragraph 4.53 states:

“After my introduction of the newly appointed CLO, the Second applicant immediately proceeded with its operations at the subject property, and we soon thereafter realised that the group of people which I addressed as aforesaid, became increasingly violent.”

[6]

It is thus difficult to fathom the respondents’ assertion in this regard, as the applicants stated that the group of people became ‘increasingly violent on the day.

(v)

In granting costs against the first to third respondents when there is no evidence against them.

[7]

On hearing the application for leave to appeal on 23 February 2023, I dismissed it with costs.

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[8]

On 6 March 2023, the 1st to 3rd respondents (the respondents), ostensibly in keeping with the provisions of Rule 49(1)(b), filed a request for reasons for the order granted on 26 January 2023, (against which an application for leave to appeal had already been brought and dismissed). The respondents also sought reasons for the order of 23 February 2023, (dismissing the application for leave to appeal).

[9]

In the request for reasons, the respondents state:

“1.

The Applicants have elected to appeal the said Orders of the 26thJanuary 2023 and 23rdFebruary 2023 . . . and require the said written reasons as it is a requirement in terms of the Rules of this Honourable Court.

2.

The Applicants are incapable to launch and prosecute the said appeal without the said written reasons from the said judge.

3.

The Rules of this Honourable Court require that the said reasons must be part of the appeal application.”

The Law

[10]

Applications for leave to appeal in the High Court are governed by Rule 49 of the Rules of court. Rule 49(1)(b) is instructive. It provides:

“49(1)

(b)

When leave to appeal is required and it has not been requested at the time of the judgment or order, application for such leave shall be made and the grounds therefor shall be furnished within 15 days after the date of the order appealed against:

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Provided that when the reasons or the full reasons for the court’s order are given on a later date than the date of the order, such application may be made within 15 days after such later date: Provided further that the court may, upon good cause shown, extend the aforementioned periods of 15 days.”

[11]

The proviso to Rule 49(1)(b) portends that ‘the reasons or full reasons for the court’s order shall be given by the court before the application for leave to appeal is made. This is hardly surprising as in our legal system, it...