In the High Court of South Africa
(Western Cape High Court, Cape Town)
Case No: 16925/12
In the matter between:
WESTERN CAPE FRESH PRODUCE

and

JUDGMENT DELIVERED ON 28 SEPTEMBER 2012
Buikman, AJ:
1. This is an application, brought by way of urgency, in which the Applicant, a voluntary association of fresh produce sellers, applies for an interdict pending review proceedings, to prevent the Respondent from executing demolition orders to take down various permanent stall structures from which produce is sold.
2.The application has a predecessor: an application was brought under similar circumstances by the Applicant under case number 9790/2012 out of this Court. The papers were placed before me by the Respondent who contended that the application is relevant for the proper determination of the relief sought in this application. In that application, five of the Applicant’s members, also sought to restrain the Respondent from impounding and removing the stall structures. The Applicant eventually did not persist with the application and did not institute review proceedings as envisaged in an interim order in terms of which it was required to do so by 6 August 2012.
3. The Respondent resists the relief claimed in this application on the basis that:
3.1. the Applicant has failed to establish that it has a clear right to the relief claimed as there is no merit in the review proceedings now instituted;
3.2. the balance of convenience favours the Respondent;
3.3.the urgency of the application is entirely self created. The application was brought on extremely short notice to the Respondent;

Background facts
4. During April and May 2012 various impoundment notices pursuant to section 22 of the Respondent’s Street and Public Places and Nuisance Bylaw as read with section 17 of the Western Province Roads Ordinance 19 of 1976 were issued to five of the Applicant’s members which led to the application under case number 9790/2012. The Applicant in that application stated that it had not been given an opportunity of making written representations to the Chief of Law Enforcement Services within the 7 day notice period that they had been given in terms of the impoundment notices and hence sought leave to do so.

6. On 11 June 2012, after considering the Applicant’s representations, the Respondent made a decision to continue with the demolition of the structures. This decision was communicated in writing to the Applicant on 12 June 2012. In this notification the Applicant’s attention was brought to bear on the fact that the Act did not confer a discretion on the Respondent to condone non-compliance with the 21 day appeal period. On 13 June 2012, in response to this letter, the Applicant’s attorney advised that he held instructions to lodge an appeal against the Respondent’s decision.

8. The Applicant failed to deliver its appeal within the 21 days afforded by section 62 of the Act. The Applicant contends that the reason for its appeal being delivered on 12 July 2012 was that it only received a full set of the reasons for the Respondent’s decision on 21 June 2012. It argues that the 21 day appeal period commenced from this date and not 12 June 2012 when the decision was communicated to it. This is disputed by the Respondent who alleges that on 12 June 2012, when advised by the Applicant’s attorney that page 5 was missing from the set of reasons, it immediately telefaxed page 5 of the reasons to them. During argument in this application, a copy of the two telefax transmissions was handed up to me under cover of a further supplementary affidavit and to which affidavit the Applicant was also given an opportunity to respond.

9. Excusing the late delivery of the appeal, the Applicant's attorneys directed a letter to the Respondent on 4 July 2012 in which the Applicant raised the fact that its appeal was late by virtue of the fact that a full set of the reasons for the Respondent’s decision of 12 June 2012 was only furnished on 21 June 2012 when it was given the missing page 5.
10. It is common cause that the Respondent’s answering affidavit under case number 9790/2012 was served on the Applicant’s attorney on 12 June 2012 and that a full set of the reasons is an annexure thereto, including page 5 thereof.
11. On 20 July 2012 the Respondent dismissed the Applicant’s appeal application.

13. On 29 August 2012 the Applicant, this time represented by Achmat Hendricks (“Hendricks”), the deponent to the founding affidavit, filed its review application to set aside the Respondent’s decision on appeal. It is to be noted that Hendricks, although he professes to have an interest in the application, is not one of the five named parties to the application under case number 9790/2012. The Applicant states that it was not able to launch its review application on 6 August 2012, as it was required to do in terms of the order of 26 June 2012, due to lack of funds.

14. On 30 August 2012 the Applicant launched this application on three days notice to the Respondent for an interdict pending the final determination of its review application. The urgency is stated to be that demolition of the illegal structures was due to commence on 30 August 2012.
A clear right
15 The review application is based primarily on the procedural unfairness of the dismissal of the appeal. According to the Applicant, the fact that the Act does not make provision for condonation is in and of itself procedurally unfair. The Applicant maintains that it was not afforded a proper opportunity of presenting its appeal given that a full set of reasons for the Respondent’s decision were only forthcoming on 21 June 2012.
16. Mr Greig, who appears for the Respondent, argued that the wording of section 62 of the Act is clear and that the Applicant had 21 days from the date when the Respondent communicated its decision to the Applicant. No provision is made in the section to reasons being given. Section 62 (1) of the Act provides:

17 According to the Respondent, it is not necessary for me to decide whether the 21 days period should run only when full reasons have been given. He contended that the Applicant received a full set of the reasons on 12 June 2012 when page 5 was faxed to the Applicant on that date and furthermore, a full set of the reasons was attached as an annexure to the Respondent’s answering affidavit, also served on the Applicant’s attorney on 12 June 2012.
18. A detailed account of the events that occurred between 12 June 2012 and 21 June 2012 is given in the founding affidavit to the review application. The Applicant states that on 12 June 2012 the Respondent faxed the reasons to its attorneys of record which did not include page 5. It goes on to state that its attorney then telephoned the Chief Law Enforcement Office on 12 June 2012 who was informed that the reasons were in fact sent erroneously and that this should never have been done. The Applicant’s contends that its attorney then contacted the Respondent’s attorney to request the missing page. In support of this contention the Applicant refers to its attorney’s letter of 13 June 2012.

20. The missing page 5 is aiso not referred to in a letter despatched by the Applicant’s attorney on 15 June 2012.
21. The first time that any mention is made of the fact that the Applicant was unable to deal with the appeal by virtue of an incomplete set of the reasons was in the Applicant’s attorney’s letter of 4 July 2012.
22. It is also not disputed in the Applicant's replying affidavit in this application that its attorney was aware that the full reasons was an attachment to the answering affidavit served on 12 June 2012 under case number 9790/2012.

24. In the circumstances, I am not satisfied that the Applicant has made out a case that it has a clear right. The Applicant was in a position to lodge its appeal timeously. This it failed to do.
25. I am also not satisfied that the Applicant has given an adequate explanation as to why it did not file its review application on 6 August 2012 in terms of the order of this Court on 27 June 2012. No explanation is given by the Applicant why it did not persist with its application under case number 9790/2012 save to state that the deponent to the Applicant’s affidavits in that application, Mr Bam, was supposed to depose to an affidavit in support of the review application on 13 August 2012 but failed to arrive on that date. One must assume therefore that the affidavit in support of the review application was ready for signature on that date. The fact that the Applicant ran out of funds does not adequately explain why the Applicant waited until 29 August 2012 to bring the review application in circumstances where the review application was already prepared and was ready for signature on 13 August 2012.

26. There is also no explanation at all why there was a delay between the period 20 July 2012, being the date when the Applicant was notified that its appeal had been unsuccessful, and 13 August 2012 when arrangements were made for Mr Bam to depose to the review application.
Balance of convenience
27. I agree with Mr Greig that the Applicant has also not made out a case that the balance of convenience is in its favour.

29. There is no impediment to the Applicant’s members trading on an informal basis from the Respondent’s land just that such trading cannot take place from permanent illegal structures.

31. Accordingly, the balance of convenience in this matter must favour the Respondent.
Locus standi

affected by the review application, are indeed the members of the Applicant who are being represented in this application by Hendricks.
34. The Applicant’s attitude to the new notices issued on 23 August 2012 is therefore not understood. Those affected by the new notices, including Hendricks, had their own remedy available to them and cannot now be parties to this application.
35. In order to establish the identity of the members of the Applicant who are affected by the relief to this application, the Respondent issued a notice in terms of Rule 14 on 6 September 2012. No response to the notice was received. Mr De Wit, on behalf of the Applicant, indicated during argument on 18 September 2012 that the Applicant might wish to file a further affidavit to respond to the notice in order to demonstrate that at the least the five members affected by the review application were parties to this application. When argument resumed on 20 September 2012, no such affidavit was produced.
36. I can only assume therefore that there is merit in the Respondent’s argument that the Applicant would prefer that the real protagonists remain undisclosed to shield them against any costs order were I to dismiss the application.

Costs

40. I agree that the Applicant in this matter persisted with its claims well knowing that these are spurious. This is evidenced by the fact that it failed to disclose the names of the parties who it represents. The Applicants have not met any of the time periods imposed on them in an attempt to delay the inevitable demolition of illegal structures for which it has no permission.

42. I agree that the Applicant’s deliberate flouting of the law in the face of lawful attempts by the Respondent to perform its duties warrants a special costs order. There is no good reason why the Respondent should be out of pocket.
43. In the circumstances, I make the following order:
The application is dismissed with costs, such costs to be paid on a scale as between attorney and client.	
BUIKMAN, AJ