IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 7456/2017
In the matter between:

AQUA TRANSPORT & PLANT HIRE (PTY) LTD	 APPLICANT

and

THE CHIEF EXECUTIVE OFFICER OF THE 
DUBE TRADEPORT CORPORATION N.O.	 FIRST RESPONDENT

DUBE TRADEPORT CORPORATION		 SECOND RESPONDENT

ROKWIL (PTY) LTD					 THIRD RESPONDENT

J U D G M E N T
Delivered on: Tuesday, 25 September 2018
______________________________________________________________

Olsen J

[1]	On 21 May 2018 this court (Lopes J) dismissed an application in terms of Rule 53 launched in June 2017 by Aqua Transport and Plant Hire (Pty) Limited (“Aqua”) to review and set aside a decision by the Dube Tradeport Corporation (“Dube”) to award to Rokwil (Pty) Limited (“Rokwil”) a contract for the construction of extensive bulk earthworks at the Dube Tradeport in an area known as Tradezone Two. The chief executive officer of Dube was also cited in those proceedings in his capacity as the appeal authority which had dismissed an appeal by Aqua against the award of the contract made by Dube. Aqua launched an application for leave to appeal against the refusal of its review application and that was dismissed on 26 June 2018. It is common cause that an undertaking was made by Dube at the commencement of the proceedings not to proceed with the works pending the decision of this court in the review application. In the result it was unnecessary for Aqua to pursue the grant of an interdict it had sought as Part A of its notice of motion launching the review proceedings, preventing the implementation of the award which had been made in favour of Rokwil pending the determination of the review proceedings. 

[2]	On the day that judgment was handed down dismissing the review Aqua asked Dube not to conclude the contract with Rokwil. The request was denied, and in conveying this Dube pointed out that the contract had by then been delayed by eighteen months. On 23rd May 2018 Aqua notified Dube that the former intended to pursue an appeal, and warned that an application for an interdict would follow if an undertaking not to conclude the contract with Rokwil was not provided that day. Dube again denied the request, and the contract was concluded. Work on the site did not start immediately. On the occasion of the hearing of the application for leave to appeal Dube made it clear that it intended to proceed forthwith with the contract which had been awarded to Rokwil. By letter dated 2 July 2018 Aqua asked Dube nevertheless to grant an undertaking that the work would not proceed pending an intended petition to the Supreme Court of Appeal for leave to appeal. By letter dated 4 July 2018 this request was denied. Immediately thereafter Rokwil established itself on site, and work commenced and has proceeded since. It appears that the contract period is eighteen months.

[3]	By notice of motion dated 22 July 2018 (issued on 23 July 2018) Aqua launched an application for, inter alia, the grant of an interdict preventing the implementation of any contract for the performance of any work pursuant to the award of the tender to Rokwil pending the determination of the applicant’s application for leave to appeal to the Supreme Court of Appeal. (During the course of argument the order sought was amended so that it should read –‘pending the final determination of the applicant’s application for leave to appeal to the Supreme Court of Appeal; and if leave is granted, pending the determination of the appeal).

[4]	On 17 July 2018 Aqua’s attorneys had delivered a notice in terms Rule 30A(1) directed at both Dube and Rokwil. The notice was without precedent, certainly in my experience. It recorded that whereas Aqua’s notice of motion in the original review proceedings, and the provisions of Rule 53, had required the production of the record of the tender proceedings to be delivered by 21 July 2017, Dube had failed to provide a full record because it omitted Rokwil’s successful tender document. Notwithstanding that the notice was delivered over a year after the record was due; that the court had been asked to adjudicate upon the review application without the tender document; that the court had rendered its judgment dismissing those review proceedings; and that the court had refused leave to appeal against the dismissal of those review proceedings, the final paragraph of the notice of 17 July 2018 read as follows.
‘Therefore kindly take notice that should [Dube] fail to comply with the provisions of Rule 53(1)(b) of the Uniform Rules of Court, namely to despatch to the registrar [sic] and to notify the applicant that it has done so within 3 (three) days of this notice, the applicant shall apply for an order that the full record be despatched forthwith.’

[5]	It is not disputed that Dube’s attitude to the request for access to Rokwil’s bid is and has been that it has no objection to the production of the document. Dube failed to produce the tender document, and continues to refuse to do so, because Rokwil claims confidentiality with respect to its bid, and Dube will not reveal it without Rokwil’s consent. Rokwil continues to withhold its consent. 

[6]	Accordingly, the other relief sought in the notice of motion dated 22 July 2018 is that Dube be directed to produce Rokwil’s bid. 

[7]	The notice of motion dated 22 July 2018 notified the respondents that the applicant intended to apply for both forms of relief (i.e. an interdict preventing the implementation of the contract and the production of Rokwil’s bid) on 30 July 2018, on which day the application served before me. It was then adjourned for two weeks both because there was insufficient time on 30 July 2018 to hear the application and because the parties required time to deliver affidavits.

[8]	When the matter came before me on 15 August 2018 a second application was placed before me. It was based upon alleged wrongful failures to comply with notices in terms of Rule 35(12) delivered by Aqua between the first date of hearing and the second. In order to render this judgment it is necessary for me, therefore, to label the various proceedings. I will call the original proceedings, which have already been disposed of by Lopes J, the ‘review proceedings’. I will refer to the application which served before me on 30 July 2018 as the ‘main application’, and to the one which followed as the ‘Rule 35(12) application’.

The Rule 35(12) application.

[9]	Two notices in terms of Rule 35(12) were delivered on 31 July 2018, one directed at Dube and the other at Rokwil. Dube had delivered an answering affidavit in the main application. Unsurprisingly, in resisting an application for delivery of Rokwil’s tender or bid, it was necessary for the deponent to that affidavit to refer to the document. That, according to Aqua, was a reference to documents such as is contemplated by Rule 35(12) as a result of which Dube was obliged to produce the document. When dealing with the question of the prejudice that Dube would suffer if the interdict sought in the main application were granted, the deponent to the same affidavit put up a document entitled ‘Weekly Progress Report’ prepared by the supervising engineers to illustrate that work was underway. In that annexure the engineers refer to a ‘contract commencement date’, and the contention of Aqua is that this amounts to a reference to the contract concluded between Dube and Rokwil consequent upon the award of the tender to Rokwil, and that the contract document must also be provided. Reference was also made to a paragraph of Dube’s opposing affidavit which dealt with the subject of increased costs and escalations which have occurred as a result of the delay in the implementation of the tender caused by the original review application. Reference was there made to ‘the tender and contract documentation’, and that, according to Aqua, also justified a demand for the production of both the tender and the contract. In the light of the provisions of Rule 35(12), these demands were, notionally in any event, for the use of the documentation in the main application.

[10]	The notice in terms of Rule 35(12) delivered to Rokwil had these features.

(a)	Again, it was unavoidable for Rokwil to refer to its bid or tender in opposing the main application. Nevertheless Aqua contended that the reference to the bid engaged the provisions of Rule 35(12).

(b)	In another paragraph of the opposing affidavit delivered on behalf of Rokwil, the deponent said that “since the contract is a rates and measurement contract if Rokwil is ordered to stop the site can be handed over to whomsoever is eventually a successful tenderer without disruption or harm to that tenderer”. That, according to Aqua, obliged Rokwil to produce the “contract” to which reference is made in that paragraph.

[11]	I propose to dismiss the Rule 35(12) application with costs. In my view the following reasons for reaching this decision will suffice.

(a)	Both Dube and Rokwil refused the request for the documents made in terms of Rule 35(12), and the subsequent notices in terms of Rule 30A did not persuade them to change their minds. Nevertheless Aqua delivered its replying affidavits, without the claimed benefit of access to the documents. 

(b)	Both Dube and Rokwil had complained from the outset about the level of urgency attached by Aqua to these proceedings. The main application was launched just short of a month after leave to appeal was refused (and two months after an interdict was first threatened), allowing the repondents a week only to instruct their attorneys and mount their defences. Aqua was unmoved, and both the main application and the Rule 35(12) application were heard together.

(c)	I cannot accept the proposition that references to the Rokwil bid document by the respondents generated a right to call for its production under Rule 35(12). A right to production of the document was, after all, the subject of the main application. Counsel for Aqua argued that this view of matters is trumped by the decision of this court in Siyakhuphuka Investment Holdings (Pty) Ltd v Ports Regulator of South Africa Transnet SOC and Others (5520/2016) [2018] ZAKZDHC 19 (21 May 2018). I do not agree. That case involved an application for inclusion in a Rule 53 record of a report which had been withheld. As is the case here, the respondent’s affidavit referred to the report, presumably inter alia to make the case that it did not belong in the record. As here, the affidavit generated a notice in terms of Rule 35(12) claiming production of the report under that alternative heading. The learned judge decided that the report had to be produced to complete the record required by Rule 53. He then expressed the view that, even if he was wrong in that, the report “should also have been produced pursuant to the request in terms of Rule 35(12)”. In explaining that view the learned judge confined his observations to questions of relevance. Quite understandably, because the judgment on this aspect of the case was obiter, there was no need for the learned judge to canvass in detail the circumstances in which the report featured in the affidavit concerned. I venture to suggest, however, that if his finding had been that the report was not required to be produced in terms of Rule 53, the application for the same relief under Rule 35(12) might have been approached somewhat differently. In my view Rule 35(12) cannot be read as a procedural device which can be subverted to ambush opponents. An application to produce a document under any heading (Rule 53 or otherwise) which is without merit cannot be used as a device to generate a different right of access to the same document under Rule 35(12) when the respondent can hardly avoid reference to the document in order to illustrate that the original claim to access is false. I do not regard myself as bound by the decision in Siyakhuphuka. Besides the fact that it did not deal with the issue raised here, as I have already mentioned the learned judge’s observations about the alternative claim under Rule 35(12) were obiter.

(d)	It was argued on behalf of Aqua that the contract which was concluded between Dube and Rokwil may well have a bearing on the question as to whether Dube’s allegations as to the monetary loss it has sustained, and continues to sustain, by reason of delay are false or questionable. This goes to the question of the balance of harm should the interdict sought in the main application be granted. In my view there is an inherent conflict between the argument that this case is supremely urgent, justifying the preference it was given on the roll, and the pursuit of the production of that contract. If I had ordered its production, and it turned out that the contract has some relevance (real or merely erroneously perceived), Aqua would have had to deliver a further affidavit which would inevitably need to be answered; and the answer might have required a reply. The main application would have been delayed, and Aqua would again have had to seek preference above other matters on our rolls in order to have the apparently urgent main application decided later. Counsel for Aqua was unable to resolve this incongruity. I find it difficult to understand Aqua’s insistence on arguing the Rule 35(12) application together with the main application, if the grant of the former would mean delaying the latter.

(e)	The argument with respect to the contract is that its provisions would govern the claim that, inter alia, contract price escalations due to the delayed start had already cost Dube some R32m above what was originally contemplated. However, as pointed out by counsel for the respondents, the form of tender executed by all tenderers, and the contract which the successful tenderer would be obliged to sign upon the award of the tender, are already contained in the tender record provided for the purposes of the review proceedings. The answer to this given by Aqua’s counsel was that perhaps, as may have been permitted by the tender documents, the contract that was actually signed was not precisely the same as the one which was due to have been signed. That is all very well, but in my view a foundation for the claim that the production of that contract really matters in the main application ought to have been established by the deponent to Aqua’s affidavit in the Rule 35(12) application, pointing out, if it be so, that if the contract form attached to the tender had been duly executed as anticipated, no such loss as a result of escalating prices caused by the delay in the review proceedings would have occurred. There is no such statement made by Aqua. 

(f)	The remedy provided by Rule 35(12) is a negative one; that is to say if there is no compliance with the notice, the party notified will not be entitled itself to use the document in question. In the Rule 35(12) application Aqua seeks positive relief. Counsel agreed that the grant of such positive relief is discretionary. For the reasons set out above I decline to exercise my discretion in favour of Aqua. 

The main application : access to the successful bid

[12]	Rule 53 of the Uniform Rules of Court provides for the production by the decision-maker of the record of the proceedings which generated the decision under review. As already mentioned the record provided by Dube did not include the successful bid document. 

[13]	The origin of the confidentiality claim made by Rokwil appears to lie in a passage in the tender document headed ‘Confidentiality and Indemnity Undertaking’. The document deals largely with Dube’s confidential information, but paragraph 8 reads as follows.

‘The bidder undertakes not to request the confidential information submitted as part of any other bid submission by any other bidder whether such information has been designated as confidential or not, and for the purposes of this clause the entire contents of any competing bidder’s bid submission will be regarded as confidential.’

These are the terms upon which all tenderers submitted bids. The copy signed by Aqua has been put up by Dube in its answering affidavit. 

[14]	It has not been argued before me that this undertaking justified the exclusion of Rokwil’s bid from the record provided by Dube for the purposes of the review application. 

[15]	The absence from the record of not only the successful tender document, but also those of the other tenderers who made it into the stage in the adjudication process at which Aqua was excluded, would have been apparent from the outset. That never generated an application to compel production of the documents. 

[16]	In its answering affidavit in the main application Dube has put up a transcript of a passage of argument in the review proceedings where the issue of the absent tender documents was raised. Lopes J posed the question as to whether it is not the “function” (in the context it seems the learned judge meant the right) of Aqua to claim the documents in order to complete the record. In response counsel for Aqua acknowledged that the question posed by the learned judge was legitimate, but sought to circumvent the difficulty by asserting that it was legitimate also for Aqua to argue that it was Dube’s responsibility to put up the evidence which supports its claim that there was a fair process, and that an inference against Dube could be drawn from its failure to provide the other bids. It is not possible to discern from the transcript whether Aqua desisted from compelling production of the other bid documents because it preferred to argue for a negative inference against Dube; or whether there were perhaps other undisclosed reasons why an application was not launched to compel the production of the bid documents. However in my view there are some proper conclusions to be drawn from the omission. It cannot have been overlooked that the tender documents, and especially that of Rokwil, were not in the record. Detailed reasons for the exclusion of Aqua from the process when functionality was being evaluated were provided by Dube in its answering papers in the review application (copies of the relevant pages of that affidavit having been put up as an annexure to Dube’s affidavit in the main application). It is difficult to understand why, given those disclosed reasons, Aqua would not have compelled the production of the competing bid documents if it was believed that those documents, and especially Rokwil’s bid document, would be of assistance in advancing the claim that Aqua was unfairly treated.

[17]	In its papers in the main application Aqua has offered no explanation for its failure to compel the production of a full record in the review proceedings. In its founding affidavit in the main application Aqua makes the observation that the events in question pre-date the decision in Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC). However counsel for Aqua conceded that the judgment in that case stated the law as it was, certainly insofar as issues of confidentiality are concerned. (Earlier cases dealing with the duty to produce a full record referred to by counsel for Aqua in their heads of argument support the correctness of this concession.)

[18]	It is primarily for the benefit of the applicant in review proceedings that Rule 53 requires the production of the record of the proceedings under review. An applicant can dispense with the production of the record if it takes the view that it can succeed without it; but it does so at its own risk; and its right to do so is attenuated by the right of any other party to the litigation to require that the record, or a full record, be provided. (See SACCAWU & Others v President, Industrial Tribunal, & Another 2001 (2) SA 277 (SCA) para 7 and South African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons & Another 2003 (3) SA 313 (SCA) para 5.) Obviously an applicant in review proceedings may likewise accept an incomplete record as sufficient for its purposes.

[19]	Aqua has chosen to follow a peculiar and particular procedural route to make its present claim for production of Rokwil’s bid document. The procedural route is irregular. Rule 53 has nothing to do with completed review proceedings. To the extent that the employment of this incorrect procedure constitutes the foundation of the claim, it renders the dismissal of the claim mandatory.

[20]	However, as Aqua’s founding affidavit reveals, the purpose of its attempt to secure access to Rokwil’s bid document is the hope that it will reveal something which would support an application to the Supreme Court of Appeal to receive further evidence in terms of s 19 of the Superior Courts Act 10 of 2013. As counsel for Aqua points out, the right to call for the document under the Promotion of Access to Information Act 2 of 2000 is obstructed by s 7 of that Act in the light of the fact that litigation is underway. (See PFE International & Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC).)

[21]	The question as to whether any further evidence (ie affidavits) should be admitted at this stage is one to be decided by the Supreme Court of Appeal. The first two considerations which arise in such an application were set out as follows in Colman v Dunbar 1933 AD 141 at 161.
‘1.	It is essential that there should be finality to a trial, and therefore if a suitor elects to stand by the evidence which he adduces, he should not be allowed to adduce further evidence except in exceptional circumstances. To allow fresh evidence on a point which calls in question evidence already led would necessitate a rehearing of the witnesses whose evidence is questioned, so as to give them an opportunity of answering the fresh evidence. This means that the case would be largely reopened which militates against finality (authority omitted).

2.	The party who makes the application ‘must show that the fact that he had not brought it forward was not owing to any remissness on his part (per Collins, LJ in Young v Kershaw 16 TLR 52, 54). He must satisfy the court that he could not have got this evidence if he had used reasonable diligence.’

See also De Aguiar v Real People Housing (Pty) Ltd 2011 (1) SA 16 (SCA).

[22]	 Counsel for Aqua argued that Dube, as an organ of State, owed duties underpinned by the Constitution to play open cards and place all matters before the court which were required for the case. Rokwil is not in a similar position. Aqua now seeks disclosure of material in respect of which Rokwil is entitled to claim confidentiality (even if its claim would not have prevailed under compulsion in terms of Rule 53). The review proceedings were a substantial piece of litigation which no doubt generated substantial legal costs. (The papers before the court, excluding the record, ran to some 1600 pages.) Rokwil is entitled to finality in the litigation. There is also a public interest in the finality of litigation, and a particular interest on Dube’s part as the organ of State involved. In this particular case this interest is heightened by the prejudice which Dube has already suffered as a result of the delay in the finalisation of the review proceedings in this court. 

[23]	In the light of what I have said about the way in which Aqua approached the review proceedings, and in particular its approach to the failure of Dube to provide the competing bids, I have to conclude that it is not possible for Aqua to advance a case that it was not owing to any remissness on its part, that whatever it may seek to make of Rokwil’s bid was not made as part of its case at the right time before this court was asked to decide the review application. Far from there being an absence of remissness, it seems plain to me that a positive decision was made by Aqua to proceed without the competing bid documents. It is not a question of the presence or absence of reasonable diligence. It is a matter of an election. 

[24]	Accepting, without deciding, that in circumstances such as these, I have a residual power to order the production of the documents in the interests of justice, despite the misplaced reliance on Rule 53, I do not believe that I should exercise that power at this time. Firstly, it seems to me that the decision rests with the appeal court. Secondly, rights in terms of s 34 of the Constitution are implicated. They are enjoyed within the framework of rules and procedural rights and obligations which are designed to ensure that proceedings and processes are fair. Where rules and procedures are inadequate for that purpose this court has the power under s 173 of the Constitution to regulate its process in the interests of justice. A court should in my view take great care not to exercise that power when a deviation from the norm is sought by a litigant which, regretting a course it chose to follow in originally advancing its case, seeks to be rescued from its predicament by the court without regard to the interests of anyone except its own. It is the duty of the court to remember that there are also other litigants involved who might be prejudiced. This is such a case.

[25]	I conclude that the review proceedings have made their way through this court which has dealt with them to its fullest extent. It is not for this court to regulate any further proceedings. That situation may change if, on application to the Supreme Court of Appeal, that court decides to allow further evidence based upon what might be found in Rokwil’s bid document. To the extent that Aqua complains of being at a disadvantage in making such an application because it does not presently have access to that bid document, that is a circumstance which is of its own doing. It is a product of its own choices. And I do not think that the present lack of access to the Rokwil bid document is by any means the most prominent obstacle lying in the way of Aqua’s planned application to lead further evidence. 

The main application : an interdict pending proceedings in the Supreme Court of Appeal

[26]	In our law an interdict is sought and granted upon the basis that a right is being infringed or is threatened with infringement. An applicant for such relief must establish both the existence of the right and the infringement (or the threat of it). If an interim interdict is sought, to operate whilst the parties prepare their cases for final adjudication by the court, prima facie proof, even if open to some doubt, will suffice. None of these statements is contentious. 

[27]	In the present case there was never any question as to whether Aqua was entitled to fair administrative conduct in the course of adjudication of the tenders for which Dube had called. The issue in the case was whether that right had been infringed. If it had, the relief claimed included an order setting aside the award which had been made to Rokwil. 
 
[28]	This court decided in the review proceedings that the adjudication of tenders had not infringed any right of Aqua, and by implication that Rokwil had acquired the right to execute the contract. This decision was reached conclusively. The decision was final and not susceptible to alteration by any judge of this court. 

[29]	Accordingly, when counsel for Aqua argued for the grant of an interim interdict, a central question which he was asked to address is whether a judge of this court could grant Aqua interdictory relief founded squarely on the proposition that Aqua’s rights were infringed in the tender process, when this court has already decided that there was no such infringement. In answer to this counsel relied upon a recent line of cases emanating from the Western Cape Division of the High Court. I will commence my consideration of those authorities by looking at an earlier judgment which is against the proposition contended for by counsel for Aqua. 

[30]	In Plettenberg Bay Entertainment (Pty) Ltd v Minister Van Wet en Orde en ‘n Ander 1993 (2) SA 396 (C) Brand J had to consider an application for an interim interdict pending a proposed appeal against an order that he had made. The case concerned a casino owner which sought an interdict against the police preventing the closure of its casino. The application for an interdict was dismissed. The applicant then applied for leave to appeal and also launched a second application in which it sought a rule nisi calling upon the police to show cause why they should not be interdicted against shutting down the casino pending the application for leave to appeal, and for an interim interdict to the same effect. The police argued that the court had no alternative but to dismiss this second application. The court agreed and refused the interdict. The court rejected the argument of counsel for the applicant that it was sufficient that the grant of the application for leave to appeal (which still had to be heard) might reveal a reasonable possibility that the appeal court might hold that the applicant did have a right to carry on the business of a casino. The court rejected this argument pointing out that if leave to appeal was granted the right which would flow from that would be a right to appeal. It would not be a right in terms of the substantive law, which is required in order to support an interdict. The learned judge held that his decision in the main or first application determined the respective positions of the parties in law and was binding on him and all judges in his division. In support of this conclusion the learned judge referred, inter alia, to Constantinides v Jockey Club of South Africa 1954 (3) SA 35 (C) where an interdict was refused in similar circumstances. 

[31]	The case of Indwe Aviation (Pty) Ltd v Petroleum Oil and Gas Corporation of South Africa (Pty) Ltd & Another (NO 2) 2012 (6) SA 110 (WCC) concerned an application by a provider of air services for an order that it should be permitted to continue to provide such services because there had been a breach of an agreement to negotiate a contract for the continuation of such services. The applicant obtained an interim order, but when the matter came before the court (Baartman J) for final adjudication, the application was dismissed. It appears that an application for leave to appeal against that order was granted. A further application then came before the learned judge in which she was asked to grant an interim order pending appeal, directing the respondent to allow the applicant to continue to provide aviation services despite the fact that she had ruled that the applicant did not have such a right. The respondent’s argument that the court had no discretion in those circumstances to grant the interim relief was rejected. The Plettenberg Bay Entertainment case was distinguished upon two bases. Firstly it preceded our new constitutional dispensation. Secondly, the learned judge held, the case was distinguishable because in Plettenberg Bay Entertainment the court had not made an order to the effect that a prima facie right existed, as it had in Indwe Aviation, before the matter was placed before the court for its final decision. 

[32]	The learned judge in Indwe Aviation did not explain how the arrival of our new constitutional dispensation affected the correctness of the reasoning followed in Plettenberg Bay Entertainment. 

[33]	I am in respectful disagreement with the proposition that it was legitimate to distinguish Plettenberg Bay Entertainment upon the basis that in that case the court had not found that there was a so-called prima facie right. We use the term ‘prima facie right’ (or similar terms such as a ‘prima facie case’) because it is convenient to do so. There is no such thing as a prima facie right. There may be a finding that there is prima facie proof of the existence of a right, a necessary precondition for the grant of interim relief pending final adjudication upon the existence of the right. However it is the same right which is under consideration both in proceedings for interim relief (where prima facie proof will do) and when final relief is sought (where conclusive proof is required). As Harms JA put it in MV Snow Delta Serva Ship Ltd v Discount Tonnage Limited 2000 (4) SA 746 (SCA) para 6, 

‘An interim order has no independent existence but is conditional upon confirmation by the same Court (albeit not the same judge) in the same proceedings after having heard the other side.’

[34]	Earlier in the same paragraph the learned judge said the following.

‘For instance, an order of absolution from the instance or dismissal of a claim or application is not suspended pending an appeal, simply because there is nothing that can operate or upon which execution can be levied. Where an interim order is not confirmed, irrespective of the wording used, the application is effectively dismissed and there is likewise nothing that can be suspended.’

[35]	The well-known requirements for the grant of an interim interdict were restated by the Supreme Court of Appeal in Simon NO. v Air Operations of Europe AB and others [1998] 4 All SA 573 (A at 581. Concerning the right in question the following was said.
	
‘The accepted test for a prima facie right in the context of an interim interdict is to take the facts averred by the applicant, together with such facts set out by the respondent that are not or cannot be disputed and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered, and if serious doubt is thrown upon the case of the applicant he cannot succeed. (Gool v Minister of Justice and Another 1955 (2) SA 682 (C) at 688B-F and the numerous cases that have followed it).
(Italics my emphasis.)
I find it difficult to conceive of a circumstance which throws more serious doubt upon a claim that prima facie proof of the existence of a right has been established, than the fact that the court has already adjudicated finally upon the matter and determined that the right does not exist. I must regrettably disagree with the finding in Indwe Aviation that, after the matter has been finally decided, the court may revert to the earlier standard of prima facie proof in order to decide whether interim relief pending an appeal can be granted to an unsuccessful plaintiff or applicant, such as Aqua is. 

[36]	In Quality Labels Solutions CC & Others v Head of Department of Culture, Sports and Recreation, Mpumulanga Province & Others (14030/2012) [2013] ZAWCHC 193 (1 August 2013) the Western Cape High Court considered an application for an interdict pending an appeal against the refusal of an application to review and set aside the award of a tender. The learned judge was referred to the conflict between Plettenberg Bay Entertainment and Indwe Aviation and concluded that it was not necessary in that case to resolve the issue. He made the assumption that the applicants were entitled to an interdict pending determination of the appeal despite the fact that they had failed in the main case to establish a reviewable irregularity. In paragraph 16 of the judgment the learned judge expressed the view that the classic test for the grant of an interim interdict (a right established only prima facie) was not the appropriate test in an application for an interim interdict pending an appeal. After referring to an English decision on the matter the learned judge said the following in paragraph 18 of the judgment.

‘Bearing in mind the differences between the English law relating to injunctions and our law, I consider that the concept of a prima facie right is sufficiently flexible to accommodate the standard of “a real prospect of success on appeal”, as the degree of proof required of an applicant to establish a prima facie right in an interdict pending an appeal. This standard posits a higher threshold than a prima facie right although open to some doubt, and is likely to be more difficult to meet, mainly because different considerations apply to the grant or refusal of interim relief once a trial has taken place or an application has been decided.’

The learned judge went on to hold that the requirement of a ‘reasonable prospect of success on appeal for leave to appeal to be granted cannot be equated to a ‘real prospect of success on appeal’, as otherwise the grant of leave to appeal would ‘automatically establish a prima facie right for the purpose of an interdict pending appeal. (See paragraph 19). But nevertheless, the court held, a real prospect of success should not be treated as a threshold requirement but must be seen to bear the same relationship to the other requirements for an interdict, such as irreparable harm, as a prima facie right does in an application for an interim interdict pending the final determination of litigation by the court of first instance. 

[37]	The learned judge in Quality Labels applied the test he enunciated and refused the interdict.

[38]	I find myself compelled to make two observations regarding the judgment in Quality Labels. 

(a)	It seems clear that the learned judge adopted the course of assuming that he had a discretion to grant relief to an unsuccessful applicant pending appeal as, even if he applied the test he thought must be appropriate, he was going to refuse the application. Whilst the learned judge’s postulation as to an appropriate test is most helpful it cannot in those circumstances be regarded as authoritative.

(b)	I am in respectful disagreement with the proposition that one can postulate a test like “a real prospect of success on appeal”, but not regard it as a threshold requirement. In the ordinary course, and subject to a qualification I will mention later, interdicts are granted to protect rights. In an ordinary application for interim protection, if the applicant cannot establish its right even at the low level test of prima facie proof subject to some doubt, the application fails because the remaining considerations affecting a decision as to whether an interim order should be granted have no relevance where there is no right to be protected. In that sense the so-called prima facie right open to some doubt is indeed a threshold requirement. If the correct test in circumstances such as the present is the existence of a real prospect of success on appeal, then that also must be a threshold requirement. If it is established, its quality must be measured against the other requirements for interim relief, such as the balance of convenience. (Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).)

[39]	The final case relied upon by counsel for Aqua is Granbuild (Pty) Ltd v Minister of Transport and Public Works, Western Cape & Another (5021/2015) [2015] ZAWCAC 83 (5 June 2015). In that case the applicant brought an application for an order declaring that the respondent was not entitled to instruct it to engage selected sub-contractors. The application was dismissed, as was an application for leave to appeal. Whilst the original application was still pending the respondent had given notice to cancel the contract based on the proposition that the applicant was in default with its obligation to proceed with the works with due diligence. The applicant resisted the cancellation which followed upon the basis that its default was in reality not such, as it was a result of the respondent’s insistence on giving instructions for the appointment of selected sub-contractors. Rejecting this, and contending that a cancellation had lawfully taken place, the respondent gave notice of its intention to call up a guarantee. That brought about an application by the same applicant for an order interdicting payment under the guarantee. Two grounds for the relief were advanced, the first of which is relevant to the enquiry in this case. The applicant asserted a right to an interim interdict pending the finalisation of the appeal process, it having submitted a petition to the Supreme Court of Appeal for leave to appeal. The learned judge who heard the application (Rogers J) considered Plettenberg Bay Entertainment and Indwe Aviation. 

[40]	In paragraph 34 of his judgment in Granbuild the learned judge expressed the view that the ground upon which Plettenberg Bay Entertainment was distinguished in Indwe Aviation is sound. For the reasons I have given I am in respectful disagreement with that proposition, save to the extent that the Constitution now affects the question. The learned judge also went on to say (in paragraph 34) that there is much to be said for the conclusion in Quality Labels as to the approach to be followed when a “prima facie right is being assessed in the context of a pending appeal.” These two propositions may appear contradictory, but I do not believe they are. 

(a)	In Indwe Aviation the test to establish the existence of a discretion on the part of a court to grant an interim interdict pending appeal is satisfied if there was originally prima facie proof of the existence of the disputed right, of a quality which would have sufficed to grant an interim interdict in advance of the main proceedings.

(b)	In Quality Labels the court regarded a ‘real prospect of success on appeal’ as constituting or substituting for the “prima facie right” which is required to be established in order to obtain an interim interdict before the court finally determines the outcome of the dispute.

It seems that the learned judge in Granbuild intended to convey only that he supported the finding in Indwe Aviation that Plettenberg Bay Entertainment wrongly held that there was no discretion at all to grant interim relief pending appeal at the instance of an unsuccessful plaintiff or applicant. 

[41]	The learned judge in Granbuild was confronted with the same problem as I am in the present case. The applicant had been refused leave to appeal. As the learned judge put it, the applicant could not ‘get out of the starting blocks’ without persuading him that the earlier assessment of prospects of success on appeal was wrong. The learned judge regarded it as merciful that he had not been burdened with the papers in the main application (and the transcript of the oral evidence that had been heard in the case). He also went along with counsel for the applicant’s acceptance of the proposition that it would ‘not be a profitable use of judicial resources’ to expect the court to immerse itself in previous applications with a view to forming an opinion on the applicant’s prospects of success on appeal. The learned judge read the main judgment and the judgment dismissing the application for leave to appeal, and noted that they contained nothing which suggested to him, as a person “not steeped in the papers and the evidence”, that there was something obviously wrong with them. In paragraph 37 of the judgment he made the following observation. 

‘Unless interim interdicts pending appeals are to be had as of right (which nobody could suggest is the law), the applicant needs to persuade the court of at least some threshold level of prospects of success.’

[42]	In the papers before me in the main application Aqua has set out the grounds upon which it contends the learned judge erred when dismissing its review application. In my view none of them are such as establish that the learned judge made some patent error which, without more, might generate a view on my part that Aqua enjoys real prospects of success on appeal (assuming, of course, that the Supreme Court of Appeal decides to grant Aqua leave to appeal). In my view the grounds of appeal are quite ordinary; that is to say of a type which in some cases may succeed, and in others not, depending upon an evaluation of all the material before the court. Nothing much short of a rehearing of the review application would qualify me to decide whether, on the stated grounds, the applicant enjoys a real prospect of success on appeal. I was not referred to any decision which holds that an applicant in the position of Aqua has a right to have its review application heard twice in the same court.

[43]	Having made those observations I still find myself in difficulty with the proposition that this court, sitting otherwise than as an appeal court, has the power or discretion in effect to overrule (or at least to second guess) a prior decision of this court, in order to grant a temporary interdict pending appeal. This court has not only dismissed the review application but has decided that the proposed appeal would not have a reasonable prospect of success. Upon the assumptions that the decision in Plettenberg Bay Entertainment was wrong, and that the court does have a discretion to grant an interim interdict to a party in the position of Aqua; and that Quality Labels correctly states the central requirement for such relief (a real prospect of success on appeal), a single judge sitting in this division cannot grant an interim interdict pending appeal for so long as the refusal of leave to appeal by the judge who heard the main application stands unaltered by a higher court. A finding by the court that there are real prospects of success on appeal cannot co-exist with a finding by the same court that there are no reasonable prospects of success on appeal. Furthermore, in my view the enquiry postulated in Quality Labels can only be considered once leave to appeal has been granted, whether by the court a quo or by the Supreme Court of Appeal. (In the former case there could be no objection to an application for an interdict pending appeal being heard in conjunction with the application for leave to appeal.) A practice or procedure which involves another judge deciding the quality of prospects on appeal before the judge who heard the main case has decided whether the threshold of reasonable prospects of success on appeal is met undermines s 17(2)(a) of the Superior Courts Act. The section reflects the fact that fairness to all parties dictates that if at all possible the judge steeped in the case must decide the question of leave to appeal. Her or his decision should not be pre-empted by a prior decision of another judge. In my view, unless the application for the interdict is brought before the judge who made the decision subject to appeal, a glaring error on the part of the original judge must be apparent in most cases before interim relief is granted. Otherwise nothing short of, or much short of, a full rehearing of the original application will be required in order to make the necessary qualitative analysis of prospects of success on appeal in order to decide whether the threshold requirement for the grant of the interdict is met.

[44]	Having expressed my views concerning the present matter upon certain assumptions (the primary one being an assumption that Plettenberg Bay Entertainment was either wrongly decided or has been overtaken by the Constitution) it is necessary for me to state the basis upon which I will make the order which follows at the end of this judgment. 

[45]	In Granbuild (paragraph 30) Rogers J referred to a criticism of Plettenberg Bay Entertainment made by the authors of Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5ed at 1485 -1486, that it was in conflict with the decision of the then Appellate Division in Airoadexpress (Pty) Ltd v Local Road Transportation Board, Durban, & Others 1986 (2) SA 663. The facts in Airoadexpress may be summarised as follows. For some years the applicant had rendered transport services authorised by road transportation permits which had lapsed by virtue of legislative amendments. The company then applied to the local road transportation board for the issue of new permits to replace the existing ones. The local board refused the application taking the view that the amended legislation prohibited the issue of the new permits sought by the applicant. The question was as to whether the court could order the local board to issue the permits pending an appeal to the National Transport Commission against the initial refusal of the permits. Three judges and two judgments supported an affirmative answer. Grosskopf JA identified the difference of opinion between the majority and the two judges who favoured a negative answer as being whether “interim relief is available to an applicant in the above circumstances who appeals direct to the NTC, or whether it is limited to one who institutes review proceedings.” Kotzè JA (supporting an affirmative answer) said the following at page 676A-B.
“In the instance case the order of the local board has not yet been set aside and it may be argued that confirmation of the rule will run counter to the local board’s order. Setting aside the order could, at the earliest, take place when the NTC decides the appeal. That may involve a long delay. 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. I am of the view further that in principle the same approach should prevail where a strong prima facie case is established that the permits applied for were wrongly refused. In my view the principle applied in the [De Fraetas v Cape Licencing Court 1922 CPD 350] type of case should be extended to a case like the present. The decision in that case is based on the existence of a “general power” or put differently, an inherent jurisdiction to grant pendente lite relief to avoid injustice and hardship. An inherent power of this kind is a salutary power which should be jealously preserved and even extended where exceptional circumstances are present and where, but for the exercise of such power, a litigant would be remediless, as is the case here.”

[46]	As I understand this passage which, in my view, may fairly be described as the cornerstone of the judgments which supported intervention by the court, it holds that
(a)	in exceptional circumstances, 
(b)	where, if the court does not intervene, a litigant would be remediless pending a decision still to be made as to whether it should be given a right, and 
(c)	where a strong prima facie case is established that the litigant will acquire the right in question
the court may intervene by in effect granting the right (or directing the relevant 
administrative body to grant the right) pending the proceedings which will determine whether the right will be acquired according to law. It is on that footing that the court (per Kotzè JA) held in Airoadexpress that it was appropriate to exercise ‘an inherent jurisdiction to grant pendente lite relief to avoid injustice and hardship.’

[47]	In Airoadexpress the court went against the decision of an administrative body whose decisions were in any event subject to the review jurisdiction of the court. The case did not address the problem which confronted Brand J in Plettenberg Bay Entertainment. In that case the problem was that the applicant made it clear that the right upon which it rested its case for an interim order pending appeal was the right to operate or run a casino. (See Plettenberg Bay Entertainment at 399B.) What the learned judge held was that it was simply not possible for him to grant interim relief having the effect of protecting that right when he had already decided that the right did not exist. In my view that aspect of his judgment cannot be faulted. 

[48]	However in my respectful view the provisions of the Constitution have overtaken the other principle finding made by Brand J, namely that a right to appeal is not a substantive right of the type which can support an interim interdict. It is indisputable that the rights set out in the Bill of Rights (Chapter 2 of the Constitution) are substantive rights capable of being protected by an interdict, interim or final. (I do not think that the fact that the route to such protection may be defined by national legislation, such as is the case with the right to just administrative action under s 33 of the Constitution, affects the correctness of that proposition.) Section 34 of the Constitution does not simply allow access to courts. It provides that everyone has the right to a fair hearing before a court. Our courts have never shied away from granting interim interdicts in order to ensure that fairness prevails in the resolution by the court of disputes between parties. When the application of the laws governing proceedings of a court determines that a party has a right of appeal, the Constitution requires that fairness should prevail in connection with the disposition of those appeal proceedings. 

[49]	The question then arises as to what circumstances may justify the intervention of a court in the manner Aqua seeks to have done here, when the court has already decided that the right sought to be maintained by the interim relief does not exist. The order of a High Court against a claimant is not subject to suspension under s 18(1) of the Superior Courts Act. (See the passage from the judgment in MV Snow Delta quoted in paragraph 34 above.) Neither of the learned judges in Quality Labels and Granbuild finally endorsed the test which both judgments considered, namely that a real prospect of success on appeal must be established. But it is clear that both the learned judges looked upon that test with some favour. I would certainly hesitate to challenge the sentiments they expressed, but, given the basis upon which I decide this case, it is not necessary for me to consider doing so. However I think it is worth mentioning two general considerations which support the proposition that a mere prospect of success on appeal is insufficient to warrant the grant of an interdict to maintain a right which the court has held does not exist. 

(a)	If Airoadexpress sets the minimum requirements for protection of a right which has been held not to exist (and I do not suggest it does), it should be observed that the court chose to grant the protection pending appeal in circumstances where, according to the majority judgment, success on appeal was near inevitable. 

(b)	Although the two circumstances are not fully comparable, in a sense what Aqua asks the court to do is the reverse of what is contemplated by s 18(1) of the Superior Courts Act. That section allows the execution of a judgment pending appeal only under exceptional circumstances and subject to the further conditions set out in s 18(3). The section has to do with a judgment in favour of a successful claimant. What a party in the position of Aqua (an unsuccessful claimant) asks the court to do is to grant an interim order pending appeal, putting into operation the substance of a judgment which it did not obtain from the court. In that sense the remedy is exceptional. 

[50]	For reasons already stated I reach my decision in this case on the following basis. 

(a)	The decision in Plettenberg Bay Entertainment, that a judgment of a high court which holds that a right does not exist is a bar to the same court granting interim relief pending appeal, is no longer good law.

(b)	A court may in an appropriate case grant interim relief pending appeal to an unsuccessful claimant who has acquired a right to appeal. 

(c)	The right to appeal to which I refer is the one achieved upon the grant of an application for leave to appeal. 

(d)	A decision by this court (Lopes J) that Aqua would not have a reasonable prospect of success on appeal is a decision that Aqua does not have a right to appeal, and is binding on all judges in this division.

(e)	Accordingly, as matters stand, Aqua not only lacks the right which is sought to be maintained by the interim relief it seeks, but also lacks the appeal right which, had it been granted, might have been deserving of the protection Aqua seeks. 

(f)	Until and unless a higher court overturns the decision of this court refusing leave to appeal, this court has no discretion to grant the interim interdict sought by Aqua. 

[51]	Given the aforegoing this is no occasion for me to refer to or express a view on the other requirements for the grant of an interim interdict. That might become a matter for another judge if Aqua is hereafter granted leave to appeal by the Supreme Court of Appeal.

I make the following order.

1.	The application for the production of documents under Rule 35(12) launched by Notice of Motion dated 7 August 2018 is dismissed with costs.

2.	The application launched by Notice of Motion dated 22 July 2018 (issued on 23 July 2018) is dismissed with costs.

3.	The orders as to costs set out in paragraphs 1 and 2 above include the costs of senior counsel and the costs of two counsel where employed. 

___________________
Olsen J

Date of Hearing:		 	15 & 16 AUGUST 2018

Date of Judgment: 	 	TUESDAY, 25 SEPTEMBER 2018

For the Applicant:			Mr Du Plessis SC with Ms T Palmer
					
Instructed by:			Naicker & Naidoo Attorneys
					Applicant’s Attorneys
					2 Victory Drive
					Ashley
					Pinetown
					(Ref.: R Naicker/jg)
					(Tel.: 031 – 709 2984)

For the 1st & 2nd Respondents :	Mr G Madonsela SC with Mr BS Khuzwayo

Instructed by:			S D Moloi & Associates
					1st & 2nd Respondents Attorneys
					Suite 701, 7th Floor
					Corporate Place
					09 Dorothy Nyembe Street
					Durban
(Ref.: SDM/VM/0243-17)
					(Tel.: 031 – 301 2812 / 2950)

For 3rd Respondent:			Mr L Broster SC with Mr MZ Suleman

Instructed by :			M B Pedersen & Associates
					3rd Respondent’s Attorneys
					Ground Floor 
					159 Cowey Road
					Morningside
					Durban
					(Ref.: M B Pedersen)
					(Tel.: 031 – 072 0324)