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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO : 6396/2010

In the matter between:

SATYENBRA PERSADH …........................................................................Applicant

and

HARESH OUDERAJH …...............................................................First Respondent

BINA BENE OUDERAJH …......................................................Second Respondent

THE REGISTRAR OF DEEDS FOR THE

PROVINCEOF KWAZULU-NATAL …..........................................Third Respondent

AUCTION ALLIANCE KWAZULU-NATAL

(PROPRIETARY) LIMITED ….....................................................Fourth Respondent

JUDGMENT

Ngwenya AJ

INTRODUCTION:

[1] This is an application for leave to appeal against my judgment which was handed down on 25 August 2010. Furthermore, irrespective of my determination on this application, applicant seeks an order for interdict against the execution of my judgment pending him exhausting all legal remedies available to him in an attempt to overturn my judgment.

[2] Both applications are vigorously opposed. It should be noted that my judgment was to a large extent an amplification of an order granted by Jappie J, on 3 May 2010. The foundation of applicant’s case rested on two legs. The first was an alleged compromise between applicant’s son and the first respondent herein. It was contended that this compromise agreement once reached, was conveyed to the applicant, whose relationship with the first defendant is highly ceremonious. He accepted the compromise reached with his son and reduced his acceptance in writing. The second leg of the case was an alleged irregularity in the Deeds Offices during the transfer of 50% ownership of the property described as Erf 3141, Stanger, KwaZulu-Natal, from the applicant to the first defendant. (This 50% ownership I refer to as the property).

[3] Mr Acker, on behalf of the applicant informed me that applicant is only restricting his application for leave to appeal against my determination to the second leg of his case. The determination as far as the first leg is concerned is thus conceded. He proceeded to argue that the test in the circumstances is whether another court might come to a different conclusion to mine. He submitted that applicant persist with his contention that there is no nexus between the two foundations of his case. Furthermore, that in so far as the second leg is concerned, all that applicant sought before me, which was not granted, was the opportunity to go to oral evidence with the allegations as formulated.

[4] Mr Olsen, submitted that the test to be applied should be qualified by reasonableness. He argued that on the facts at hand, applicant has failed to present concrete facts to establish irregularities in the Deeds office. However, so proceeded Mr Olsen, let us take the matter to the worse case scenario. Let us assume that applicant can prove bribery or corruption on the part of the officials in the Deeds office. How does this take away first respondent’s right to the property? It is the contention of the defendant here that while the applicant’s case was ill conceived, so is the application for leave to appeal.

[5] In Capital Building Society v De Jager and Others, De Jager and Another v Capital Building Society 1964(1) SA 247 (A) the court refused an application for leave to appeal holding that there existed no reasonable prospects of success in the matter. This test has been differently amplified but in substance it remains as stated in the above quoted case.

[6] The Court dealing with an application for leave to appeal is not sitting as a review court over its own judgment. It matters not how correct it might perceive its judgment to be. As long as the applicant can show that there are reasonable prospects of success, leave should be granted. In assessing the application, the court must diligently evaluate the facts placed before it. It must always be borne in mind that part of assessing the issues at hand, is the consideration of where the appeal should lie. Is it to the full bench of that Division or is it to the Supreme Court of Appeal.

[7] In this matter, it is evidently clear that what falls to be decided is not an intricate legal principle. It is about the assessment of facts at hand. The enquiry therefore restricts itself to whether another court might come to the conclusion that applicant should be given an opportunity to present oral evidence. In my judgment, the mere allegation of irregularities in the Deeds office, with the hope that something more sinister might be discovered during the trial is not enough. The applicant must show that on papers there is such serious dispute of facts pertaining alleged irregularities in the Deeds Office which can only be resolved by oral evidence. He must further show that the dispute does not end there. The alleged irregularities must have a direct bearing on his entitlement to the portion of the property transferred to the first respondent. I will revert to this aspect of the case later.

[8] I now deal with the second application. That is the application for interdict pending leave to appeal or petition to the Chief Justice for leave to appeal. Mr Olsen has referred me to Plattenberg Bay Entertainment v Minister Van wet En orde 1993(2) SA 396 (C). He urged me to follow this judgement in dealing with the application for interdict. The upshot of this judgement is that once the court has determined in an application for interdict that the applicant has failed to satisfy the first requirement viz the existence of a right (whether prima facie or otherwise) even if he were to satisfy the other requirements, the court in an application for leave to appeal cannot grant an interim relief pending appeal or petition to the Chief Justice.

[10] Mr Acker submitted both orally and in his written heads of argument that the Plattenberg Bay Entertainment judgement cannot be correct and I should not follow it. In his view the English court judgement in Erinford Properties Ltd v Cheshire Country Council [1974] 2 ALL ER 448 (Chd) at 453 laid down the correct approach. The principle laid down in the latter case is that the court is not rendered functus officio to deal with an application for relief pendent lite, by virtue of its earlier finding that the applicant has no right. This view is supported by the present authors of the work Hebstein and Van Winsen (5^th Edition) Vol.1 at page 1485. In support of their contention they cite an Appellate Division judgement in Airodexpress v LRTB, Durban 1986 (2) 663 (A) at 674 and Erinford Properties Ltd supra. Mr Acker submits that the latter judgement was not cited in Plattenberg Bay Entertainment case. Mr Olsen submitted that following our doctrine of stare decisis. I am bound to follow the judgement of Brand J, as be then was, in the Plattenberg Bay Entertainment case supra. It is true that I will be bound by a judgement of another court on the point unless I conclude that it is clearly wrong or where there is Superior Court judgement on the matter holding otherwise.

[11] My starting point in this matter is that the granting of an interdict is a matter for discretion by the court. In the brief time I had to deal with this matter, I had the occasion to read few more cases than those referred to by counsel. I found the judgement in Knox D’arcy Ltd and others v Jamieson and others 1996(4) S.A 348 (A) instructive. But before dwelling on this judgement let me refer to the words of Innes CJ in Donaldson V Foster’s Executors 1909 TS 427 at 431 pertaining the stare decisis and the grant or refusal of an interdict. “…continuity of practice is very desirable, and we must follow those decisions and adhere to the rule there laid down… The refusal of an interdict is always a final refusal to grant that particular form of relief in the citizen which is applied for”. My emphasis.

[12] In Knox D’arcy Ltd and others, supra, the court had this to say “Some judges have questioned the validity of the distinction between the refusal and the grant of an interim interdict. The distinction cannot be justified by the nature of the proceedings giving rise to the decision – it is same in both cases. And it may be argued that the prejudice suffered by the unsuccessful party also does not differ in principle… There may also be a difference in the finality of the decision. Thus as stated above, the refusal of an interim interdict is final. It cannot be reversed on the same facts. (I disregard the possibility, discussed above, of a refusal on some technical ground). The same may not be true of the grant of an interim interdict. It may be open to the unsuccessful respondent to approach court for an ameliorations or setting aside of an interdict, even if the only new circumstances is the practical experience of its operation”. Emphasis added.

[13] It should be evident from the above quotation that the Airoadexpress judgement is distinguishable. Firstly the latter case was decided ten years earlier. It is noteworthy that Grosskopf JA, who delivered the unanimous decision of the court in Knox D’arcy Ltd, delivered a separate concurring majority judgement to Kotze JA in Airoadexpress judgement where the court was divided three to two. In my respectful view the passage quoted in Hebstein and Van Winsen at page 1485 from Airoradexpress is somewhere out of context. This case must be read from its historical context as reported in 1984 (3) SA 65 and 1984 (4) SA 593 (N) (Subnomine Airoadexpress (Pty) Ltd v Chairman, LRTB, Durban and Others). The factual background of the case is summed up as follows by the court per Kotze JA:

1. For five years from January 1978 to 31 December 1983 the appellant provided transportation service which served the public interest.

2. No alternative satisfactory services existed.

3. The local board refused an application by the appellant to replace the services referred to in (1) by a fundamentally similar service.

4. The services referred to in (1) lapsed by virtue of legislative enactment.

5. In essence the refusal referred in (3) arose out of a failure to exercise unfettered discretion in that the local board refused the application because of a wrong impression that the act as amended prohibited the grant of the permits applied for.

[14] It will be noted that the appellant who was the applicant in the court a quo was granted an urgent relief on 23 December 1983. After the rule was extended several times, Kumleben J discharged it with costs on 17 August 1984. Hence the appeal. The crisp point for consideration was whether the High Court is indeed endowed with power to grant public road transportation permits by mandatory order affording interim protection pending an appeal to the National Transport Commission (NTC). Kotze JA’s approach to the matter appears in the following passages.

“On the material before us a strong prima facie case has been made out that the permits applied for were wrongly refused by reason of the local board's wrong belief that the Act as amended precluded the grant of the certificates. In the event of such proof the Court would, upon application to it, be empowered under its review jurisdiction to set the matter right by directing the grant of the permits or by referring the matter back for proper consideration. (Cf W C Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board and Others 1982 (4) SA 427 (A) ). The NTC is empowered, in terms of its statutory appellate jurisdiction, to afford like relief. In either event, ie a review to the Supreme Court or an appeal to the NTC, a delay in the delivery of judgment after 31 December 1983 would cause loss and hardship to the appellant. In deciding what I have referred to above as the crucial legal submission, it is convenient first to consider the approach adopted by our Courts in resolving problems of this nature where interim relief is sought pending main proceedings in the Courts themselves and thereafter to consider whether different considerations apply pending the final decision of a statutory functionary.

The question has in the past frequently arisen in regard to the renewal of liquor licences. For more than half a century interim relief in the form of mandatory orders to prevent prejudice or injustice has been decreed in several of the provinces.

The ratio of the decision was that the Court did not possess the jurisdiction to grant the relief prayed - to exercise such a jurisdiction would be to "usurp... the functions of the liquor licensing boards".

The cases of Morkel, Golomb, De Fraetas and Patterson all deal with the renewal of liquor licences and may be regarded as examples (there are many others) of the "product of judicial ingenuity" and "sound authority" referred to by Baxter Administrative Law at 690. The instant case, apart from the fact that it is concerned with a different statute, also differs from the above cases in that an interim order is sought pending a decision of the NTC and not of the Court and that in form it is not an application for renewal but for a new grant. The latter point of distinction is, in my view, unimportant: the said position is in essence no different from an application for renewal since, as pointed out above, the application is fundamentally for the continuation of the pre-existing service. As far as the other point of distinction, viz that the interim relief sought is unrelated to Court proceedings, is concerned, I can find no indication in the Act that the power of the Supreme Court to grant interim relief (if it exists) is excluded. On the contrary, such power seems to be impliedly recognised by the Act. Section 8 (A), as inserted by s 5 of Act 91 of 1980.”

[15] Furthermore, the passage quoted by the learned authors of Hebstein and Van Winsen at 1485 is preceded by the following: ”I cannot accept that, if it can be shown in a case of this kind that the appellant must inevitably succeed in the appeal, interim relief pending the determination thereof can lawfully be withheld solely by reason of an order which cannot conceivably be sustained.” My emphasis. It would appear to me that to the extent that Plattenberg Bay Entertainment is the authority for the proposition that the court has no discretion to grant an interdict to protect the right which the court has already determined does not exist must be read in the context of Knox D’arcy Ltd and Others. In short where the court has refused an interdict that is the final order. I cannot grant it via the back door under the pretext that the applicant seeks leave to appeal. This, to my judgment is not necessarily restricted to whether the court has determined whether applicant has established a prima facie right or not.

[16] In the light of the definitive Supreme Court of Appeal judgement in Knox D’Arcy above it is not necessary to delve into Erinford Properties Ltd judgement. My approach to this matter simply put is that the facts are distinguishable to any of the cases referred to. Therefore what remains is the order by Jappie J, which has since been executed by the first respondent. The appeal therefore if granted will have nothing to do with that order which entitled first respondent to transfer 50% undivided share to an immovable Property Erf NO. 3141, Stanger to his name. It is not the applicant’s intention to challenge that order as he never did before. Neither is it his intention to challenge my judgement dismissing the alleged compromise. What is in explicable is what right does he have to stop the auction of the first defendant’s property pending a possible investigation about the appropriateness of procedures followed in the Deeds Office to effect transfer. Furthermore the intended appeal is not against my discharge of my rule nisi but is against my order dismissing the existence of irregularities in the Deeds Office, and therefore not allowing the applicant leave to lead oral evidence on this score. Therefore the application for interim relief under consideration must be understood against this backdrop. In short, the application is a fresh one. It lacks the elementary foundation upon which a relief of this nature can be granted. For the sake of completeness, applicant has not established a right whatsoever, neither has he set out any harm he has suffered. It follows from this that he could not have set out the other requirement necessary to grant an interdict pendente lite. In the circumstances his application falls to be dismissed with costs.

ORDER:

Taking all of the above into consideration, I make the following order:

1. The application for leave to appeal is dismissed.

2. The application for interim relief pendente lite is dismissed

3. Applicant is ordered to pay costs of the matter.

___________________

NGWENYA AJ

Date of Judgment : 19 November 2010

Applicant’s Representative : ADVOCATE B A ACKER SC

Instructed By : BEALL, CHAPLIN & HATHORN

Applicant’s attorneys

121 Clarence Road

Berea

Durban

First and Second : ADVOCATE P J OLSEN SC

Respondent’s Counsel : D RAMDHANI

Instructed By : KRISH NAIDOO, GOVENDER & CO

1^st & 2^nd Respondent’s Attorneys

c/o ANAND-NEPAUL ATTORNEYS

7^TH Floor, Royal Towers

30 Dorothy Nyembe Street

Durban

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