Court name
Supreme Court of Appeal of South Africa
Case number
929 of 2016

University of the Free State v Afriforum and Another (929 of 2016) [2016] ZASCA 165 (17 November 2016);

Law report citations
[2017] 1 All SA 79 (SCA)
Media neutral citation
[2016] ZASCA 165
Coram
Cachalia JA
Swain JA
Mathopo JA
Fourie AJA
Schippers AJA

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA


JUDGMENT


  
          Reportable


            
Case No: 929/2016


In
the matter between:         


UNIVERSITY
OF THE FREE STATE                                       

           
           

     APPELLANT


and


AFRIFORUM                                                                                          

FIRST RESPONDENT


SOLIDARITY                                                                       

             SECOND
RESPONDENT








Neutral citation:    
UFS v Afriforum & another [2016]
ZASCA 165
(17 November 2016)



Coram:                   
Cachalia, Swain and Mathopo JJA and Fourie
and Schippers AJJA



Heard:                    
3 November 2016


Delivered:              
17 November 2016


Summary:              
Appeal in terms of s 18(4)(ii) of the Superior Courts
Act 10 of 2013 (the Act) against the implementation of an order
pending an
appeal: the requirements for the granting of an order in
terms of s 18 of the Act considered: appeal upheld due to applicant’s

failure to prove the existence of ‘exceptional circumstances’
and to discharge the onus imposed by s 18(3) to show
irreparable
harm: circumstances justifying a costs order against the unsuccessful
applicant.


ORDER


On
appeal from:
Free State Division of the High
Court, Bloemfontein (Hendricks J, Mokgohloa J and Motimele AJ
concurring, sitting as court of first
instance):


1
The appeal is upheld with costs, including the costs of two counsel.


2
The order of the court a quo is set aside and the following
substituted therefor:


The
application to implement the order of this court under case no
A70/2016 delivered on 21 July 2016, is dismissed with costs,

including the costs of two counsel.’


JUDGMENT



Fourie AJA (Cachalia,
Swain and Mathopo JJA and Schippers AJA concurring):


[1]
This is an appeal by the University of the Free State, a university
as defined in the Higher Education Act 101 of 1997 (the
UFS),
exercising its automatic right of appeal in terms of s 18(4)(ii) of
the Superior Courts Act 10 of 2013 (the Act), against
the order of
the Full Court of the Free State Division of the High Court,
Bloemfontein (the Full Court), directing that its judgment
and order
delivered on 21 July 2016 not be suspended pending the determination
of an appeal by the UFS to the Constitutional Court,
alternatively to
this court.


[2]
The first respondent is Afriforum, a registered non-profit company,
which describes itself as ‘an active non-governmental

organisation involved
in the protection and development of civil rights within the context
of the Constitution’. Solidarity, a registered
trade union
under the Labour Relations Act 66 of 1995, is cited as the second
respondent, but took no part in the proceedings in the Full Court nor
is it a party to this appeal. No
further reference will be made to
it.


[3]
The events giving rise to this appeal are the following: On 11 March
2016, the Council of the UFS (with the concurrence of the
Senate)
decided to adopt a new multilingual language policy with effect from
the commencement of the 2017 academic year. This new
policy provides
for English becoming the primary medium of instruction at the UFS
(with tutorials in Afrikaans and Sesotho), excluding
the faculties of
theology and teacher education where Afrikaans will remain the medium
of instruction. The new policy replaced
the 2003 language policy
which provided for parallel medium instruction in Afrikaans and
English. Aggrieved by this decision of
the Council of the UFS,
Afriforum launched an application to review and set it aside. The UFS
opposed the application and, in the
event, the Full Court was
convened to hear the matter.


[4]
On 21 July 2016 the Full Court delivered its judgment reviewing and
setting aside the decision of the Council to ‘adopt
and
approve’ the new language policy for the UFS. The UFS then
sought direct leave to appeal to the Constitutional Court,

alternatively leave to appeal to this court, against the order of the
Full Court. The Constitutional Court subsequently declined
direct
access to it, but as the Full Court had granted the UFS conditional
leave to appeal to this court, the appeal of the UFS
against the
order of 21 July 2016 shall be heard by this court in due course. The
appeal process initiated by the UFS, in turn,
prompted Afriforum to
approach the Full Court in terms of s 18 of the Act, for an order
implementing the Full Court’s order
of 21 July 2016, pending
the finalisation of the appeal. The UFS opposed the application, but
on 12 September 2016 the Full Court
ordered that its order of 21 July
2016 would remain in force pending the finalisation of the appeal
against it.


[5]
Prior to analysing the provisions of s 18 of the Act, it is apposite
to have regard to the common law principles regarding the
suspension
of orders of court pending appeal. The well-established common law
rule of practice in our courts has been that generally
the execution
of a judgment is automatically suspended upon the noting of an
appeal, with the result that, pending the appeal,
the judgment cannot
be carried out and no effect can be given thereto, except with the
leave of the court which granted the judgment.
See South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534 (A) at 544H-545A. In South Cape Corporation at
545B-C, Corbett JA reiterated that the purpose of the rule was to
prevent irreparable damage being done to the intending appellant
by
the execution of the judgment pending the appeal. However, as further
explained by Corbett JA at 545D-G, the court to which
application was
made for leave to execute the judgment pending appeal, had a wide
general discretion to grant or refuse such leave
and would, inter
alia, have regard to the following factors:


(1.)
the potentiality of irreparable harm or prejudice being sustained by
the appellant on appeal if leave to execute were to be
granted.


(2.)
the potentiality of irreparable harm or prejudice being sustained by
the respondent on appeal . . . if leave to execute were
to be
refused.


(3.)
the prospects of success on appeal, including more particularly the
question as to whether the appeal is frivolous or vexatious
or has
been noted not with the bona fide intention of seeking to reverse the
judgment but for some indirect purpose. . . .


(4.)
where there is the potentiality of irreparable harm or prejudice to
both appellant and respondent, the balance of hardship
or
convenience, as the case may be.’


[6]
This common law rule of practice was adopted in Uniform rule of Court
49(11), promulgated under the Supreme Court Act 59 of
1959. In
relevant part the rule read as follows:


Where
an appeal has been noted or an application for leave to appeal
against . . . an order of a court has been made, the operation
and
execution of the order in question shall be suspended, pending the
decision of such appeal . . . , unless the court which gave
such
order, on the application of a party, otherwise directs.’


The
Supreme Court Act 59 of 1959 has been repealed and replaced by the
Act which came into operation on 23 August 2013. Subsequent
thereto
on 22 May 2015, rule 49(11) was also repealed.


[7]
Section 18 of the Act has replaced rule 49(11) and the relevant part
thereof for purposes of this appeal reads as follows:


Suspension
of decision pending appeal


(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and

execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.


.
. .


(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.


(4)
If a court orders otherwise, as contemplated in subsection (1) –


(i)
the court must immediately record its reasons for doing so;


(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;


(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and


(iv)
such order will be automatically suspended, pending the outcome of
such appeal.


(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.’


[8]
This is the first appeal under s 18(4)(ii) of the Act that has
reached this court. Section 18 of the Act has, however, been

considered by divisions of the high court. In this regard reference
can be made to Incubeta Holdings (Pty) Ltd &
another v Ellis & another
2014 (3) SA 189
(GJ);
Liviero Wilge Joint Venture &
another v Eskom Holdings Soc Ltd
[2014]
ZAGPJHC 150 and
The Minister of Social
Development Western Cape & others v Justice Alliance of South
Africa & another
[2016] ZAWCHC 34.
Although these judgments differ in certain respects as to the
application of the requirements of s 18 of the Act, they are closely

reasoned and of much assistance in the interpretation of this novel
provision.


[9]
In embarking upon an analysis of the requirements of s 18, it is
firstly necessary to consider whether, and, if so, to what
extent,
the legislature has interfered with the common law principles
articulated in
South Cape Corporation,
and the now-repealed Uniform rule 49(11). What is immediately
discernible upon perusing ss 18(1) and (3), is that the legislature

has proceeded from the well-established premise of the common law
that the granting of relief of this nature constitutes an
extraordinary
deviation from the norm that, pending an appeal, a
judgment and its attendant orders are suspended. Section 18(1) thus
states that
an order implementing a judgment pending appeal shall
only be granted ‘under exceptional circumstances’. The
exceptionality
of an order to this effect is underscored by s 18(4),
which provides that a court granting the order must immediately
record its
reasons; that the aggrieved party has an automatic right
of appeal; that the appeal must be dealt with as a matter of extreme
urgency
and that pending the outcome of the appeal the order is
automatically suspended.


[10]
It is further apparent that the requirements introduced by ss 18(1)
and (3) are more onerous than those of the common law.
Apart from the
requirement of ‘exceptional circumstances’ in s 18(1), s
18(3) requires the applicant ‘in addition’
to prove on a
balance of probabilities that he or she ‘will’ suffer
irreparable harm if the order is not made, and
that the other party
‘will not’ suffer irreparable harm if the order is made.
The application of rule 49(11) required
a weighing-up of the
potentiality of irreparable harm or prejudice being sustained by the
respective parties and where there was
a potentiality of harm or
prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience, as the case
may be, was required. Section
18(3), however, has introduced a higher threshold, namely proof on a
balance of probabilities that
the applicant will suffer irreparable
harm if the order is not granted and conversely that the respondent
will not, if the order
is granted.


[11]
In Incubeta Holdings at para 24 Sutherland J aptly commented
as follows on  s 18(3):


A
hierarchy of entitlement has been created, absent from the South
Cape
[Corporation] test. Two distinct findings of fact
must now be made, rather than a weighing-up to discern a
“preponderance of equities”.’


D
E Van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
2 ed vol 1 Service
issue 2, correctly concludes that s 18(3) ‘is a novel provision
and places a heavy onus on the applicant’.
On a proper
construction of s 18, it is clear that it does not merely purport to
codify the common law practice, but rather to
introduce more onerous
requirements. As submitted on behalf of the UFS, had the legislature
intended the section to merely codify
the common law, it would have
followed the authoritative formulation by Corbett JA in
South
Cape Corporation
.


[12]
The concept of ‘exceptional circumstances’ introduced by
s 18(1), was considered by Mpati P in
Avnit v
First Rand Bank Limited
[2014] ZASCA 132, in
the context of s 17(2)
(f) of
the Act which provides that in ‘exceptional circumstances’
the President of this court may refer a decision on an
application
for leave to appeal to the court for reconsideration. Mpati P held
that upon a proper construction of s 17(2)
(f),
the President will need to be satisfied that the circumstances are
‘truly exceptional’ before referring a matter for

reconsideration.


[13]
Whether or not ‘exceptional circumstances’ for the
purposes of s 18(1) are present, must necessarily depend on
the
peculiar facts of each case. In Incubeta Holdings at para 22
Sutherland J put it as follows:


Necessarily,
in my view, exceptionality must be fact-specific. The circumstances
which are or may be “exceptional” must
be derived from
the actual predicaments in which the given litigants find
themselves.’


I
agree. Furthermore, I think, in evaluating the circumstances relied
upon by an applicant, a court should bear in mind that what
is sought
is an extraordinary deviation from the norm, which, in turn, requires
the existence of truly exceptional circumstances
to justify the
deviation.


[14]
A question that arises in the context of an application under s 18,
is whether the prospects of success in the pending appeal
should play
a role in this analysis. In
Incubeta Holdings
Sutherland J was of the view that the prospects of success in the
appeal played no role at all. In
Liviero Wilge
Joint Venture
Satchwell J, Moshidi J
concurring, was of the same view. However, in
Justice
Alliance
Binns-Ward J (Fortuin and Boqwana JJ
concurring), was of a different view, namely that the prospects of
success in the appeal remain
a relevant factor and therefore ‘.
. . the less sanguine a court seized of an application in terms of s
18(3) is about the
prospects of the judgment at first instance being
upheld on appeal, the less inclined it will be to grant the
exceptional remedy
of execution of that judgment pending the appeal.
The same quite obviously applies in respect of a court dealing with
an appeal
against an order granted in terms of s 18(3)’.


[15]
I am in agreement with the approach of Binns-Ward J. In fact,
Justice
Alliance
serves as a prime example why the
prospects of success in the appeal are relevant in deciding whether
or not to grant the exceptional
relief. Binns-Ward J concluded that
the prospects of success on appeal were so poor that they ought to
have precluded a finding
of a sufficient degree of exceptionality to
justify an order in terms of s 18 of the Act. This conclusion was
subsequently proven
to be justified when this court upheld the main
appeal in
Justice Alliance.
However, in the present appeal, the appeal record in the review
application was not before us. The prospects of success shall

therefore not feature in our consideration of whether or not the
order of the Full Court should be upheld.


[16]
Turning to the facts and circumstances of the present matter, it has
to be borne in mind that the deponent to the founding
affidavit is an
Afriforum official who claims to speak only for prospective Afrikaans
first-year students who intend enrolling
for the 2017 academic year.
It is common cause that current students at the UFS are unaffected by
the new language policy as they
shall complete their studies in their
language of choice under the 2003 policy. Furthermore, as appears
from the answering affidavit
of the UFS, the new language policy will
only be implemented in three pilot faculties in 2017, namely, the
faculties of medicine,
law and humanities. Based on the 2016
enrollment figures, only 386 students in the three pilot faculties
may potentially be affected
by the implementation of the new policy
in 2017. They represent a mere 1 to 2 per cent of the total student
population of the UFS.
Further, as pointed out by the UFS, these are
faculties and prospective students who are quite clearly capable of
successfully
implementing the policy without affecting the students’
academic success, as the study materials in these courses are
overwhelmingly
in English and the first-year students who make the
grade for enrollment are those who are sufficiently proficient in
English to
master the subject-matter in that language. In addition,
Afrikaans students shall, in terms of the new language policy, be
assisted
by tutorials in Afrikaans to help them master the study
material.


[17]
In attempting to meet the requirement of exceptionality in its
founding papers, Afriforum based its argument upon the premise
that,
as a result of the judgment of the Full Court, all prospective
first-year students were entitled to accept that the 2003
parallel
medium language policy would remain in force and that they would be
entitled to apply for admission, enroll and continue
with their
first-year studies at the UFS in 2017 on the basis that they have a
choice to do so either in English or Afrikaans.
But, said Afriforum,
the decision of the UFS to apply for leave to appeal the judgment of
the Full Court and the resultant suspension
of the judgment, had
‘resulted in a quandary amongst prospective students who, with
less than two months left to apply for
admission are left in a state
of total uncertainty whilst lofty legal principles are being
litigated through the courts’.
However, as recorded above, very
few prospective 2017 first-year students will be affected by the new
policy; the policy will apply
only to 386 students in the three pilot
faculties. Therefore, Afriforum’s initial claim that it spoke
on behalf of ‘hundreds
if not thousands’ of matriculants
wishing to study in Afrikaans, was clearly wrong. In fact, of the 386
students, Afriforum
produced no evidence that any of them found
themselves in a ‘quandary’ as a result of the suspension
of the judgment.
There is also no suggestion by Afriforum that any
prospective student in any of the three affected faculties stands to
be prejudiced
by the introduction of the new language policy in 2017.


[18]
In any event, and even if there was some ‘quandary’ or
‘uncertainty’ amongst these students regarding
the status
of the judgment of the Full Court due to the suspension thereof
pending appeal, I fail to see how this could amount
to an
‘exceptional circumstance’ as envisaged in s 18(1) of the
Act. In fact, there is no uncertainty about the legal
position –
pending the appeal the judgment and order of the Full Court is
suspended. Section 18 of the Act precisely brings
about certainty
pending appeal – the status quo ante is restored and the new
language policy is to be implemented. In this
regard, it should be
noted that Afriforum has not challenged the constitutionality of the
new language policy. It has sought to
review the decision to adopt
the policy and that is now the subject of an appeal. Therefore,
pending the finalisation of the appeal,
the UFS would be legally
entitled to implement the new policy.


[19]
Not only did Afriforum in its founding affidavit grossly exaggerate
the number of prospective students whose interests it proclaimed
to
safeguard, but it also failed to show that any prospective first-year
student in fact stands to be adversely affected by the
introduction
of the new language policy in 2017. In its founding papers Afriforum
presented the circumstances of two matriculants
in an attempt to
justify the existence of the ‘quandary’ amongst
prospective 2017 first-year students. However, the
two matriculants
who deposed to supporting affidavits will not study in any of the
three pilot faculties. Matriculant A intends
enrolling in the faculty
of education and the faculty of economic management sciences, while
matriculant B will be studying exclusively
in the faculty of economic
management sciences. These faculties are unaffected by the
introduction of the new language policy,
and neither say that they
would be prejudiced if obliged to study in English.


[20]
When the deficiencies in Afriforum’s case were raised by the
UFS in its answering affidavit, Afriforum, in its replying
affidavit,
changed its stance regarding the requirement of ‘exceptional
circumstances’. In essence Afriforum now pinned
its
colours
solely
to the mast of exceptionality on
the ground that, pending the appeal process, the constitutional right
of the students in terms
of s 29(2) of the Constitution, to receive
education in the language of their choice where reasonably
practicable, would be taken
away and could never be restored.


[21]
I fail to see how, even if there had been an infringement of rights
as contended for, this would constitute exceptional circumstances
as
envisaged in s 18(1) of the Act. The mere reliance on the foregoing
of the right by the students to exercise a choice does not
in itself
(ie without proof of any adverse consequences) constitute exceptional
circumstances. As submitted on behalf of the UFS,
the submission on
behalf of Afriforum is conceptually confused because it conflates the
deprivation of a right with the adverse
consequences flowing
therefrom in circumstances where there is no proof at all of such
adverse consequences. As recorded earlier,
there is simply no
evidence of a single individual student intending to exercise this
right in the affected faculties or of any
adverse consequences which
may befall any student until final judgment on appeal. It accordingly
follows, in my view, that Afriforum
failed to show the existence of
exceptional circumstances justifying relief implementing the order of
the Full Court of 21 July
2016 pending the determination of the
appeal.


[22]
This brings me to the additional requirements for an order of this
nature as set out in s 18(3). Firstly, Afriforum was required
to
prove on a balance of probabilities that the students whose interests
it represented would suffer irreparable harm if an order
in terms of
s 18 was not made. As recorded earlier, Afriforum did not suggest
that any actual harm would befall this small number
of potential 2017
first-year Afrikaans students. In fact, Afriforum based its argument
on the same premise as before, namely that
the foregoing of an
opportunity or right to be taught in a language of choice per se
constitutes irreparable harm. This line of
reasoning is, as I have
said, conceptually flawed. Infringement of the right per se does not
constitute proof of irreparable harm.
As recorded earlier, Afriforum
had in any event not identified a single student intending to
exercise this right in the affected
faculties. Nor has any evidence
been produced of the harm which may befall any student until final
judgment on appeal. There is
no suggestion that any prospective
student may be prejudiced by any delayed entry into the labour
market; in fact, there is no
suggestion that any student affected by
the pilot implementation of the new language policy in 2017 would
suffer any adverse consequence
were he or she to study for one year
in English and thereafter being permitted to revert to Afrikaans,
should the appeal fail.
Therefore, as submitted on behalf of the UFS,
Afriforum’s case in this regard not only failed at the legal
level, but on
a factual level too.


[23]
What remains is the second requirement of s 18(3), namely, proof by
Afriforum on a balance of probabilities that the implementation
of
the order pending appeal would not cause irreparable harm to the UFS.
Afriforum submitted that, whereas the new language policy
will only
be introduced in three faculties, it would not cause the UFS any harm
to postpone the limited implementation until it
is ready to effect
comprehensive implementation in the event that the appeal is upheld.
To this Afriforum added that there was
in any event insufficient
evidence of any financial loss to be suffered by the UFS if the Full
Court judgment was not suspended
pending the exhaustion of appeals.


[24]
The UFS, on the other hand, emphasised that there has been
substantial planning and preparation to implement the new language

policy in 2017. Furthermore, the UFS has expended extensive human and
financial resources in the process. Were the UFS now to be
precluded
from continuing with the implementation and the introduction of the
new policy in the three faculties in 2017, it would
have wasted
substantial public resources. Afriforum does not dispute this.


[25]
Counsel for Afriforum submitted, albeit faintly, that the averments
of the UFS were insufficient to raise a bona fide dispute
as to
whether or not the UFS would suffer irreparable harm in the event of
the order of the Full Court not being suspended. This
submission is
without merit. There is simply no basis upon which these averments of
the UFS can be disputed. On the contrary, they
are averments of
substance which clearly underscore the conclusion that the UFS would
suffer irreparable harm in the event of the
order of the Full Court
not being suspended pending appeal.


[26]
In view of the above, Afriforum’s application was misconceived
and ought to have been dismissed. In the result the appeal
should
succeed.


[27]
It is necessary to comment on the reasons furnished by the Full Court
for its order implementing its judgment of 21 July 2016.
As recorded
above, s 18(4)(i) of the Act required the Full Court to immediately
record its reasons for doing so. Whilst appreciating
that the Full
Court may not have had sufficient time to carefully consider and
craft its reasons, this did not justify the furnishing
of reasons
that are materially lacking in substance. There has in fact been no
proper attempt at furnishing reasons – all
that the reasons
(which constitute less than half a page) amount to is an assortment
of some conclusions. The reader of these ‘reasons’,

including this court, is none the wiser as to why the Full Court made
the order which it did.


[28]
It is trite that the furnishing of reasons for a judgment is an
indispensable part of the judicial procedure. Failure to furnish

proper reasons amounts to a grave lapse of duty and a serious
impediment to the appeal process.[1]
Not only did the Full Court shirk this duty, but it also failed to
consider any of the judgments of the various divisions of the
high
court dealing with applications under s 18 of the Act (see para 8
above), which had all been delivered prior to the Full Court
handing
down its order and reasons on 12 September 2016.


[29]
Finally, there is the issue of costs. Afriforum, relying on the
decision in
Biowatch Trust v Registrar,
Genetic Resources & others
[2009] ZACC
14
; 2009 (6) SA 232 (CC), submitted that even if the appeal were to
be successful, it should not be mulcted in costs. What was confirmed
in
Biowatch is that,
as a general rule, in constitutional litigation an unsuccessful
litigant in proceedings against the State should not be
ordered to
pay costs. However, as pointed out by Rogers J in
Democratic
Alliance v President of South Africa & others
;
2014 (4) SA 402 (WCC) para 107, this general rule is not concerned
with the characterisation of parties, but the nature of the issues.
As held
by Rogers J, with reference to paras 16-25 of
Biowatch,
‘[T]he critical question is whether the litigation has been
undertaken to assert constitutional rights, whether the
constitutional
issues are genuine and substantive and whether there
has been impropriety in the manner in which the litigation has been
undertaken’.


[30]
In my view Afriforum’s reliance on
Biowatch
is misplaced. The issue in the present matter was whether the
judgment of the Full Court should be implemented pending the
determination
of the appeal process. This is a purely factual
question, ie whether or not the three requirements for relief in s 18
of the Act
were met. That did not concern the assertion of any
constitutional rights. It follows that an award of costs against
Afriforum
as the unsuccessful party will not have any chilling effect
on other litigants who might wish to vindicate their constitutional

rights, or the rights of others on whose behalf they may litigate.


[31]
Further, for the reasons recorded above, Afriforum has acted without
circumspection in seeking relief under s 18 of the Act.
It purported
to act on behalf of prospective first-year students, without any
evidence showing that any student in the three affected
faculties
would suffer any adverse consequences if the judgment of the Full
Court were to be suspended pending appeal. There was
simply no
factual basis for believing that it was entitled to relief under s 18
of the Act.  


[32]
In these circumstances there is no reason why costs should not follow
the event. The parties are ad idem that the matter justified
the
employment of two counsel.


[33]
In the result the following order is made:


1
The appeal is upheld with costs, including the costs of two counsel.


2
The order of the court a quo is set aside and the following
substituted therefor:


The
application to implement the order of this court under case no
A70/2016 delivered on 21 July 2016, is dismissed with costs,

including the costs of two counsel.’



_____________________



P B
Fourie



           
         Acting
Judge of Appeal


APPEARANCES:


Counsel
for Appellant:                                

J J Gauntlett SC (with him F B Pelser)


                                                           

           
Instructed by:


                                                           

           
Phatshoane Henney Inc.,
Bloemfontein


Counsel
for 1st and 2nd Respondents:    J I du Toit SC (with
him M J Engelbrecht     
                                 and

M J Merabe)



                                                             

          Instructed
by:



                                                             

          Hurter
Spies Inc., Centurion



                                                             

          Schoeman
Maree Inc., Bloemfontein





[1]
See Botes
& another v Nedbank & another

1983 (3) SA 27 (A) at 27H-28A;
Strategic
Liquor Services v Mvumbi NO

2010 (2) SA 92 (CC) at 96G-97A and
Commissioner,
South African Revenue Service v Sprigg Investment 117 CC t/a Global
Investments
2011
(4) SA 551
(SCA) at 561A-E.