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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 46849/2017

DATE: 14/08/2017

In the matter between:

COMPASS MANAGEMENT CONSULTANTS (PTY) LTD                                     Applicant

and

NEWSHELF 1167 (PTY) LTD t/a UNITED NATIONAL BREWERIES (SA)    Respondent

JUDGMENT

KUBUSHI J

[1] The applicant has approached this court on an urgent basis for an order in terms of s 18 (1) of the Superior Courts Act 10 of 2013 (the Act). The relief sought is for an order directing that the operation and execution of a spoliation order granted by Mali J in the urgent court on 21 July 2017 is not suspended pending  the  decision  of   the  application   for   leave  to   appeal  filed  by  the applicant against the order granted by Mali J. This being an application on the urgent court my judgement will be crisp.

[2] Respondent manufactures sorghum beer around the country. The applicant has been providing the respondent with administrative services in all its (the respondent's) depots since 2005. The relationship between the applicant and the respondent changed when the respondent indicated its intention to cancel the services of the applicants in some of the depots. A notice of cancellation was issued by the respondent in respect of the depots in Bizana and Kokstad. The applicant refused to abide with the notice contending that it was unlawful. The respondent, in any way, took possession of the two depots at the end of June 2017. The applicant was dissatisfied and approached the court for a spoliation order which was granted on 21 July 2017. I am told that Mali J has not yet provided the reasons for the spoliation order. The respondent has in the meanwhile filed an application for leave to appeal the order of Mali J. The filing of an application for leave to appeal has the effect of suspending the operation and execution of an order to be appealed. The application for leave to appeal filed by the respondent has as such suspended the operation and execution of the order of Mali J hence the application before me.

[3] The respondent is resisting the application on the grounds of urgency and the applicant's failure to demonstrate that it is entitled to the relief it seeks.

[4] I immediately at the outset of these proceedings requested counsel to address me on urgency and the applicant's entitlement to the relief sought.

[S] The issue of whether a matter should be enrolled and heard as an urgent application is governed by the provisions of uniform rule 6 (12). An applicant must in her or his founding papers set forth explicitly the circumstances under which she or he avers the matter is urgent.  More importantly  the applicant  must state the reasons why she or he claims that she or he cannot be afforded substantial redress at a hearing in due course.

[6] I note that nowhere in the applicant's founding affidavit, I can say even in the replying affidavit, is the issue of urgency specifically addressed. The policy of the law underlying the procedure in applications for a mandament van spolie is speedy relief envisaged on short affidavits dealing with essentials of possession and dispossession. This does not, however, mean that because an application is one for a spoliation order, the matter automatically becomes one of urgency. The import of the rule is that the procedure in uniform rule 6 (12) is not there for the taking. The rule enjoins an applicant, even in spoliation proceedings, to set forth explicitly the circumstances under which she or  he avers the matter is urgent.[1]

[7] The submission on behalf of the applicant that the order of mandament by its very nature is urgent and as such the urgency that existed when the spoliation order was granted still exists even now has no merit, in my view. I am not persuaded that the urgency that existed three weeks ago when Mali J granted the spoliation order can be said to be existing even now. The applicant has, in its papers not indicated why it should be so. The fact that the papers  that served before Mali J are not made available to  me coupled with the fact  that Mali J has not provided her reasons for the order she granted, makes it impossible for me to can be aware of what Mali J could have considered when she found the  matter urgent.

[8] It is trite that the question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in due course. As such, the rule allows the court to come to the assistance of a litigant because if the latter were to wait for normal course she or he will not obtain substantial redress. The applicant does not indicate in the papers before me whether or not it will not obtain substantial redress in due course. As it is the norm, the fact that the applicant wants the matter to be resolved urgently does not render the matter urgent. Compliance with uniform rule 6 (12) is critical.

[9] Even if I would have found that the matter was urgent I would have not granted the application. Without having to go into the details of  the respondent's defence, I find that on its own version alone the applicant has not made out a case for the relief it seeks.

[10] The salient provisions of the Act applicable in the circumstances of the matter before me are found ins 18 of the Act. The default position is that the operation and execution of an order which is being appealed against is suspended, unless there are exceptional circumstances which dictate otherwise, and considerations of irreparable harm favour putting the order into operation.   Differently stated, the jurisdictional facts that an applicant  is required to prove, in terms of s 18, is that, firstly, exceptional circumstances justifying the lifting of the suspension of the order exist; and secondly, prove, on a balance of probabilities, that the applicant will suffer irreparable harm if the order sought to be appealed against, is not suspended, and that the respondent, in turn, will not suffer irreparable harm.[2]

[11] At all times the onus is on the applicant to prove exceptional circumstances justifying the lifting of the suspension and the applicant must also prove on a balance of probabilities that it will suffer irreparable harm if the order sought is not granted and that the respondent will not suffer irreparable harm.

[12] The applicant's contention that simply because the order in question is one based on spoliation the exceptional circumstances exist is not sufficient. The fact that the mandament van spolie is an extraordinary and robust remedy does not denote the exceptional circumstances as is required in s 18 (3) of the Act. Exceptionality must be fact specific and facts should be placed before the court to demonstrate exceptional circumstances.

[13] It goes without saying therefore, that an applicant in  an application  of this nature cannot contend itself with bare conclusions as the applicant in this instance did. The applicant must state facts from which it can be deduced whether the conclusions which it seeks to reach are sustainable. There is a dearth of information as to how the applicant would financially be impacted should the order they seek not be granted. Of importance to the applicant,  which permeates throughout its papers is the effect on its employees. There is also no facts showing how the respondents' decision not to abide by the  order, will certainly lead to the permanent closure of the applicant's business. The fact that only two of the depots are involved in this application or that one of its employee in the Witbank depot stole money does not, to me, automatically translate into the conclusion that its business would close down. Surely, irreparable harm in the applicant's circumstances should relate to its financial position and strength.

[14] The applicant is required to adduce evidence of its financial sustainability if the two depots are to continue under the control of the respondent. It was supposed to place evidence before court to demonstrate, for example, what percentage of its income derives from the two depots as against the other depots it presently controls. The fact that its loss of control of the two depots will cause hardship to itself and its employees, is not of itself 'exceptional' and does not translate to irreparable harm.

[15] The applicant contends itself with saying that the respondent  will suffer  no harm if the applicant is allowed to continue with the delivery of  services at the affected depots because the services have to be rendered in any way.  This is all it says as prove that the respondent will not suffer irreparable harm if the order in not suspended.  This is my view is a conclusion and does not suffice.  As the onus is on the applicant, it must provide evidence establishing how and why the issue of irreparable harm will not  be attendant  on the respondent.  This, the applicant failed to do.

[16] In the circumstances the application ought to  be dismissed with costs.

_________________________

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCE:

Counsel for Applicant            : Adv. H. M. Barnardt

Instructed by                          :Daan Beukes Attorneys

Counsel for Respondent        : Adv S. Bunn

Instructed  by                         : Crawdord & Associates

                                                     c/o Savage Jooste & Adams Incorporated

Date heard                            : 10 August 2017

Date of judgment                   : 14 August 2017

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