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[2020] ZAECGHC 96
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Hazel Alder Trading Propriatary Limited and Another v African Bush Investments CC and Others (642/2020) [2020] ZAECGHC 96 (28 August 2020)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: 642/2020
In the matter between:
HAZEL ALDER TRADING PROPRIATARY LIMITED First Applicant
BF VENTURES LIMITED Second Applicant
And
AFRICAN BUSH INVESTMENTS CC First Respondent
CUSTOCEL PROPRIETARY LIMITED Second Respondent
MAKANA MUNICIPALITY Third Respondent
CM HEUNIS CONSTRUCTION CC Fourth Respondent
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
BESHE J:
[1] In a judgment delivered on the 12 May 2020 I issued an order dismissing applicants’ application for an interim interdict. The interdict was aimed at maintaining the status quo by halting the commencement of impending construction of certain structures by the fourth respondent at the behest of the first respondent on the property owned by the second respondent. The interdict was meant to endure pending the outcome of review proceedings that were to be instituted by the applicants. Which I believe have since been launched.
[2] I dismissed the application mainly on the basis that the applicants were not clothed with the requisite locus standi injudicio to institute the application. That applicants being only shareholders in second respondent, the latter was the party suited to institute the application. Second respondent being the owner of the land on which the impugned structures are to be constructed by the first respondent. First respondent is one of the shareholders in Custocel (second respondent) which holds the property for the benefit of the shareholders.
[3] My decision is impugned on the basis, inter alia, that I should have considered the fact that the shareholders have contractual rights inter se, flowing from the shareholding agreement. Further that I should have acknowledged that through the review application the applicants seek to vindicate their constitutional right, being the right to just administrative action (Section 33 of the Constitution). This, is in respect of the decision taken inter alia, by the third respondent. And that there is a reasonable prospect of the appellate court holding that the applicants are clothed with the locus standi to institute the application.
[4] The application for leave to appeal is opposed by first respondent who raised a point that the refusal of interim relief is not appealable. Further that unless all the requirements of Subsection 17 (1) are satisfied, leave to appeal should not be granted.
[5] Applications for leave to appeal are governed by Section 17 of the Superior Courts Act.[1] The relevant part of the section reads thus:
“17 Leave to Appeal
(1) Leave to appeal may only be given where the judge of judges concerned are of the opinion that ‒
(a) (i) the appeal would have a reasonable prospect of success; or ”
(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”
[6] Respondent’s contention as regards Section 17 (1) (c) is that the decision sought to appealed against does not dispose of all the issues in the case – contenting that the real dispute between the parties will be fully ventilated and determined on review. To this the applicants resort, the dismissal of the application for an interdict was final and not open to being revisited as would be the case in respect of an interlocutory application. Reliance was placed on a number of decided cases by both parties in support of their respective submissions in this regard. I am however not persuaded, as suggested by the respondent that the submission that the refusal of an interim interdict is appealable, and reliance therefor on the dictum in Knox D’Arcy Ltd and Others v Jamieson and Others[2] amongst other decisions, is misleading in light of later decisions. In that matter the court held that the refusal of an interim interdict is final. And that it cannot be reversed on the same facts. On a reading of the decisions referred to by the respondent, I have not discerned that the dictum has been overruled or is no longer good authority or law. In my view therefore, the decision to refuse the application for an interim interdict is appealable.
[7] As far as the prospects of success of the appeal are concerned, I am unable to say that there are no reasonable prospects of the appellate court finding that the applicants were clothed with the requisite locus standi to institute the application for an interim interdict and had managed to prove the requirements for the granting thereof.
[8] Accordingly, leave to appeal against my judgment and order is granted to the Full Bench of this Division.
Costs to be costs in the appeal.
_______________
NG BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicants : Adv: E A S Ford SC and Adv: J G Richards
Instructed by : RUSHMERE NOACH INC C/o NETTELTONS ATTORNEYS
118A High Street
GRAHAMSTOWN
Ref: Mr Nettelton
Tel.: 046 – 622 7149
For the 1st Respondent : Adv: Putter and Adv: Ogunronbi
Instructed by : NICOLE ROSS ATTORNEYS
C/o WHITESIDES ATTORNEYS
53 African Street
GRAHAMSTOWN
Ref: Mr Nunn/Sharon
Tel.: 046 – 622 7117
Date Heard : 11 August 2020
Date Reserved : 11 August 2020
Date Delivered : 28 August 2020
[1] Act 10 of 2013 (Act)
[2] 1996 (4) SA 384 A at 359.