[REPORTABLE]

IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 7067/07

In the matter between:

and

JUDGMENT

NDITA, J:
[1] In this matter the Applicant brought an urgent application seeking the following relief:
(a)	That the First, alternatively the Second, further alternatively the Third Respondent is restrained and interdicted from utilizing, in any way or for any purpose, whatsoever, the two Water Cool Screw Chillers, model number YCW505635B50, with serial numbers RMNM10073 and RMNM010054 respectively;

(c)     That the costs of this application be costs in the TPD action.

[2] The Applicant is an international company, duly registered in accordance with the Laws of the Republic of South Africa and having its principal place of business at 60B Electron Avenue, Isando, Johannesburg, Gauteng. The First Respondent is the Minister of Public Works, acting in his official capacity. The Second Respondent is the Minister of Defence, acting in his official capacity. The Third Respondent is WBHO Construction, a construction company duly registered and incorporated according to the laws of the Republic of South Africa.

BACKGROUND

"10.1 Ownership of the goods shall remain vested in the Seller until the price in respect of such goods had been paid in full or unless satisfactory payment guarantees (see Clause 6.5) are provided by the Purchaser to the Seller.
102	The purchaseracknowledges that for the purpose of giving effect to 10.1 above, the goods shall be deemed to remain movable and severable property notwithstanding that they have been fixed to movable or immovable property owned by the Purchaser or by any other person whatsoever.
103	The Purchaser shall be obliged to inform the landlord of any premises in which the goods are installed of the provisions ofthis clause 10. The Seller reserves the right to similarly inform the landlord of these provisions".

APPLICABLE LAW

"These as a general rule become part and parcel of the buildings themselves and, so, the property of the owner of the buildings. The legal effect of the fixing and attaching of things to a building greatly depends, however, upon the particular circumstances of each case, it being impossible to lay down any general rule applicable to all cases. The   points chiefly to be considered are the nature and object of the structure in question, the mode of its attachment and the intention with which it was attached."

law."

[11] I now turn to consider whether the balance of convenience favours the Applicant.

[14] It may be well to remember that the granting of relief of this nature is discretionary. The chillers in question have been installed since 2004, and were used by the First and Second Respondents as air conditioners. The First Respondent has paid the full purchase and installation price. The Applicant does not deny that the building in which the chillers have been installed, accommodates approximately 600 personnel members, strategic equipment as well as computers. Furthermore, according to the First and Second Respondents, the air conditioning is essential for the proper functioning of the staff and equipment. If the interdict is granted, the First and Second Respondents would be obliged to evacuate the personnel and equipment into alternative accommodation, which it does not have. When one has regard to the Applicant's limited prospects of success in the main action and the harm the respondents are likely to suffer.   It becomes clear that the balance of conditioners. The First Respondent has paid the full purchase and installation price. The Applicant does not deny that the building in which the chillers have been installed, accommodates approximately 600 personnel members, strategic equipment as well as computers. Furthermore, according to the First and Second Respondents, the air conditioning is essential for the proper functioning of the staff and equipment. If the interdict is granted, the First and Second Respondents would be obliged to evacuate the personnel and equipment into alternative accommodation, which it does not have. When one has regard to the Applicant's limited prospects of success in the main action and the harm the respondents are likely to suffer. It becomes clear that the balance of convenience is steeped against the granting of the interdict. In any event, the Applicant does have an alternative remedy by way of a claim for damages. The above considerations far outweigh the depreciation in value or mitigation of damages.

[15]   In the circumstances, the application is refused with costs.
NDITA, J