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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 1253/2019

In the matter between

LL Security CC                                                                                                                  1^st Applicant

Mposha Security Services CC                                                                                          2^nd Applicant

And

Eskom Holdings Soc Ltd                                                                                                     Respondent

 

JUDGMENT

 

Van der Linde, J:

[1] This is an urgent application to interdict and restrain the respondent from implementing a purported cancellation on 14 January 2019 of two written security services contracts concluded last year between each of the applicants and the respondent. In my view the matter is urgent and I grant the customary condonation.

[2] The two contracts, identical for present purposes, incepted on 9 July 2018 and time-expire on 8 July 2019. They contain, by way of incorporation by reference, arbitration clauses. The arbitration clauses were not placed before me and I have no conception as to their terms and whether they make provision for urgent proceedings. I was asked to dispose of the matter before me on the basis that the dispute between the parties fall within the arbitration clauses, but for the rest no information was put before me.

[3] What is sought is, is – at least in form – an interim interdict  restraining the respondent as indicated, pending the final resolution of the dispute between the parties by way of arbitration proceedings to be initiated in terms of the unseen arbitration clauses.

[4] The dispute between the parties may be summarised thus. The respondent purported to cancel the contracts on the basis that the applicants failed to render two specific types of services. The applicants dispute the validity of the purported cancellation on the basis that they were not contractually obliged to render the two specific types of services the failure of which founded the respondent’s cancellation.

[5] The services concerned were, respectively, the provision of chromodek mobile guard huts and not timber mobile guard huts; and the provision to the security personnel of panic buttons connected to an armed response facility.

[6] The dispute is complicated for the applicants because the written contracts suggest, at least prima facie, that the applicants were indeed obliged to render those services. But the applicants assert that the contracts are to be rectified so as correctly to reflect the common continuing intention of the parties, which was that those services were not to be rendered.

[7] For the respondent Mr Uys submitted that the relief claimed is in fact final in nature, because by the time the anticipated arbitration proceedings will have determined the dispute between the parties, the remaining five months of the contracts will have run out, and the applicants will have had their contracts finally honoured. He submitted that any claim that the respondent might then have against the applicants would be in the nature of an enrichment condictio indebiti, in respect of which non-enrichment would be a defence.

[8] And if no security breach will have occurred as a function of the non-provision of the contentious services, then the respondent is likely not to be able to recover any compensation, because the applicants will likely succeed in a defence of non-enrichment. This will be the case despite the fact that the respondent will not have been rendered the prestation by the applicants for which it will have been held to have been entitled.

[9] Mr Redman, SC, who appeared with Mr Cohen for the applicants, responded to this submission by contending that it was not for this court to speculate how long the anticipated arbitration will take.

[10]In my view Mr Uys is correct. The principle is sound: if in fact the relief claimed in an application for an interim interdict is final in effect, then an applicant must make out a case for a final interdict or fail:

“In support of this proposition, Mr Labe referred to Cape Tex Engineering Works (Pty) Ltd v SAB Lines (Pty) Ltd 1968 (2) SA 528 (C), at 529G:

'On the other hand Mr Friedman, who appeared on behalf of the respondent, argued that the approach laid down in regard to temporary or interim interdicts was not appropriate in this particular case because in effect the Court was being asked to grant a final interdict. He submitted therefore that the proper approach should be that indicated in a Full Bench decision of this Court in the case of the Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235, where it was indicated that, where there was a dispute as to the facts, a  final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such order.'

In my view, this approach is correct. The Court should look at the substance rather than at the form. The substance is that an interdict is being sought which will run for the full unexpired time of the restraint. In substance therefore final relief is being sought although the form of the order is interim relief. In my view therefore the correct approach to this matter is that set out in the Stellenbosch Farmers' Winery case to which reference is made in the Cape Tex case.”[1]

[11]At a parochial level, it seems to me therefore that the applicants were duty bound to make out a case that their relief was truly interim, and then establish a case for such relief; or to establish a case for final relief.

[12]In the course of clearing the hurdle that they set out to scale, the applicants are confronted with the practical reality of the duration of litigation, even in the form of arbitration proceedings. Everyone involved in litigation knows that it takes time; that is notorious. Arbitration proceedings are no exception; that too is notorious.

[13]It seems to me that the applicants were then burdened, if they wished to avoid the prominent inference that an arbitration will chew up the remaining five months, to place the arbitration clause before the court, and to put up a persuasive case that this particular arbitration could have been disposed of in an exceptionally short space of time. They did not.

[14]Mr Redman fairly conceded that given the factual disputes relating to the asserted rectification, he could not argue on these papers that the applicants have established a clear right, the very first requirement for a final interdict.

[15]In these circumstances the following order issues:

The application is dismissed with costs.

 

 

WHG van der Linde

Judge, High Court

Johannesburg

Date heard: 25 January 2019

Date judgment: 29 January 2019

 

Counsel for the Applicants

Adv N.P.G Redman SC

With him

Adv S.S Cohen

Instructed by

Buthelezi Vilakazi Incorporated

1^st Floor Block B

Edenburg Terraces

Rivonia Boulevard

Sandton

Johannesburg

Tel: 011 234 1777

Email:s.buthelezi@buthelezivilakazi.co.za

Ref: LLS1/0008

 

Counsel for the Respondent

 

Adv P.L Uys

Instructed by

Gildenhuys Malatji Incorporated

Katherine&West Building

114 West Street

Sandton

Johannesburg

Tell: 011 428 8600

Email:rventer@gminc.co.za

Ref: R Venter 01863150

 

 

[1] BHT Water Treatment (Pty) Ltd v Leslie, 1993 (1) SA 47 (W), per Marais, J at p55.

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