Mokhutle N O v M J M (Pty) Ltd and Others (CIV/APN 327 of 98) [1998] LSCA 95 (18 September 1998)

CIV/APN/327/98 IN THE HIGH COURT OF LESOTHO HELD AT M A S E RU In the matter between: RETSELISITSOE K H O MO M O K H U T LE N. O. APPLICANT vs M. J. M. (PTY) LTD MESSENGER OF MAGISTRATE COURT THE COMMISSIONER OF LANDS A ND SURVEY REGISTRAR OF DEEDS ATTORNEY GENERAL MAMALIA JOYCE TSEPPE 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4™ RESPONDENT 5TH RESPONDENT 6TH RESPONDENT J U D G M E NT Delivered by Mr Justice S. N. Peete on the 18th September 1998 This is an urgent application in which the Applicant sought an order couched in the following terms:- 1. That condonation be granted to the Applicant for non-compliance with the rules of Court pertaining to service and process and the matter be heard on an urgent basis. 2. That a rule nisi with immediate effect be issued: 2.1 Suspending the writ of ejectment in favour of First Respondent and in terms whereof First Respondent is entitled to eject one Mairoon A d am from the premises situated at a Plot 36 - 37, Cathedral, Pitso Ground Area, Maseru and which was issued as a consequence of the judgment in case CC 424/97. 2.2 Interdicting the First and Second Respondents from ejecting B US S T OP H A R D W A RE (PTY) L TD from the said premises. 2.3 Ordering the Applicant to institute the said proposed action within 21 days of date of the order. 3. That an order be issued calling upon the Respondents to show cause, if any, on the 24th A U G U ST 1998 at 10:00 why: 3.1 The orders contained in and set out in paragraph 2.2 above should not be confirmed and be of effect pending the outcome of the action to be instituted by the Applicant against Respondents which action must be instituted by Applicant within 21 days from the date of this order. 3.2 The First and Sixth Respondents not be ordered to pay the costs of this application in the event of it being opposed. 4. That Respondents be ordered to file and deliver their Notices of Intention to oppose, if any, and their Opposing Affidavits, if any, on or before the 14th A U G U ST 1998. 5. Such further and/or alternative as m ay be considered appropriate." Even though all the Respondents (excepting the Attorney General) had apparently been served with the notice of motion and the Affidavit of the Applicant and bulky documents attached thereto, Advocate Daffue appeared before me in chambers ex parte and having heard him, I made the following Interim Order- "1. That condonation be granted to the Applicant for non-compliance with the rules of Court pertaining to service and process and the matter be heard on an urgent basis. (b) That a rule nisi with immediate effect be issued:- 2.1. suspending the writ of ejectment in favour of First Respondent and in terms whereof First Respondent is entitled to eject one Mairoon A d a ms from the premises situated at Plot 36-37, Cathedral, Pitso Ground Area, Maseru and which was issued as a consequence of the judgment in case CC 424/97. 2.2 interdicting the First and Second Respondents from ejecting B US S T OP H A R D W A RE (PTY) L TD from the said premises. 2.3 Ordering the Applicant to institute the said proposed action within 14 days of the order. (c) That an order be issued calling upon Respondent to show cause, if any, on the 24th August, 1998 at 10:00 am why: 3.1 The order contained in and set out in paragraph 2.2 above should not be confirmed and be effect pending the outcome of the action to be instituted by Applicant against Respondent which action must be instituted within 14 days from the date of this order. 3.2 The First and Sixth Respondents shall not be ordered to pay the costs of this application in the event of this being opposed. 4. That Respondents be ordered to file and deliver their Notice of Intention to oppose, if any, and their Opposing Affivadits, if any, on or before the 14th August, 1998. On the 24th August 1998 being the return date Mr. Wessels. S. C. for the Applicant and Mr Sello for the 1st Respondent argued the matter before me. Mr Sello had chosen to follow the procedure under Rule 8(10) (c) which reads - "Any person opposing the grant of an order sought in the Applicant's notice of motion shall:- (a) (b) (c) if he intends to raise any question of law without any answering affidavit (he shall) deliver notice of his intention to do so, within the time aforesaid, setting forth such question." Mr Sello has couched the points of law as follows:- "1. The Applicant has no locus standi to bring the proceedings herein in as much as he clearly has no interest of any nature therein but is merely acting as a proxy for Mairoon Adam and Bus Stop Hardware (Pty) Ltd. 2. The Applicant's conduct amounts to an abuse of the court process in as much as he seeks to obtain a remedy for the benefit of the said Mairoon Adam and Bus Stop Hardware (Pty) Ltd which this Honourable has previously denied them. 3. It is not permissible for the Applicant to have instituted these proceedings ex parte in as much as his order prayed is, in substance, an order for a stay of the judgments entered against the said Mairoon Adam and Bus Stop Hardware (Pty) Ltd in favour of the 1st Respondent. 4. The above being the case the application ought not to have been brought before any judge save the ones whose judgments are being appealed against. 5. It is not competent for this Honourable Court to interdict the carrying into execution of its own judgment. Such judgment can only be stayed in the terms prescribed by the Rules of Court. 6. The warrant of ejectment against Mairoon Adam emanates from the Subordinate Court which enjoys sole jurisdiction in the matter. 7. The Applicant is not entitled to have brought these proceedings by means of Motion proceedings in circumstances where on his own admission the matter is beset by fundamental disputes of fact." Erasmus - Superior Court Practice - B1-44 has this to say - "A respondent should, generally, file his affidavits on the merits at the same time as he takes a preliminary objection on a point of law" Du Toit vs Fourie. 1965 (4) SA 122 at 128-29; Maskovitz vs Meteor Records 1978 (3) SA 996; Ebrahim vs Geogoulas 1992 (2) SA 151 at 154. In Ebrahim's case (supra) it was held the practice of not filing answering affidavits but relying only on legal points is to be discouraged as the unopposed allegations of the applicant's founding affidavit m ay have to be accepted (Bader vs Westson - 1967 (1) SA 134 at 136). In Lesotho however unlike the Rule 6 (5) (d) (iii) of South African Uniform Rules of Court, our Rule 8(10) (c) actually envisages the respondent raising points of law without making any answering affidavits. I am not convinced that by adopting this procedure the respondent ran the risk, if the points of law failed, of having the application granted as being unopposed because the court has the discretion to grant a postponement to enable respondent to prepare and file opposing affidavits with appropriate order as to costs for the postponement. Locus standi Mr Sello for the 1st Respondent contends that "the Applicant has no locus standi to bring the proceedings herein in as much as he clearly has no interest of any nature therein but is merely acting as a proxy for Mairoon A d am and Bus Stop Hardware (Pty) Ltd." Before relating the concept of locus standi to the facts of the application before this court, it m ay perhaps be helpful to discuss briefly the concept itself. He w ho has a right to sue in an action is said to have a locus standi in such action. "Everyone has a right to be heard in his o wn cause, and no one, save a qualified practitioner, has a right to be heard in the cause of another" (per Searle JP in Rescue Committee. D RC vs Martheze. 1926 C PD 300). The test is, "has the person appearing a direct personal interest in the suit." It is c o m m on cause that the litigation began w h en the first respondent instituted an action in the magistrate's court in Maseru against one Mairoon A d am ( CC 424/97) in which it claimed, inter alia. ejectment of the said Mairoon A d a ms from plot 36-37 under registered Lease N o. 13283-232. The first respondent in its particulars of claim before the magistrate's court alleged that they had entered into an agreement with the owner of the premises in terms whereof they rented the said premises from the owner thereof (not being the present Applicant), and it was also alleged that Mairoon was in unlawful occupation of the premises and that they were therefore entitled to the relief claimed. Mairoon entered an appearance to defend the said action whereupon the first respondent, as plaintiff, applied for summary judgment, (Subordinate Court Rules 1996 - Rule 14) which was granted probably because Mairoon A d a ms could not show any sub-lease or agreement entitling her to be on the premises. The affidavit of the Applicant in this application reveals that he once entered into a written sublease with Mairoon A d a ms in 1991 but that the agreement expired after three years; and that he the Applicant purported to enter into "a verbal lease agreement" with Bus-Stop Hardware (Pty) Ltd in 1996 in regard to which there was and there is insufficient proof. Applicant does not inform the court about the terms of that agreement regarding the duration or, rental thereof. It is therefore difficult to quantify the patrimonial interest which the present applicant seeks to protect. The Applicant also alleges in his Affidavit that he is a Mosotho but a citizen of the Republic of South Africa and in view of the provisions of Section 6 of the 1979 Land Act, the Applicant may not be capable of holding title to land in Lesotho; that will however remain to be decided in the proposed civil action. Mairoon A d a m, being sole Defendant, in CC424/97 did not plead before the magistrate that she was not in occupation and that it was the Bus-Stop Hardware (Pty) Ltd which was occupying the premises in question, nor was an application for non-joinder made under (Rule 28 (2) of the Subordinate Court Rules - 1996). Mairoon then took the matter on appeal but her appeal was dismissed my brother Monapathi J. on the 3rd April 1998. I was informed by Mr Wessels S. C. that leave to appeal has been applied for but we were not informed whether it has been granted. The first respondent thereupon obtained a warrant of ejectment in terms of which the messenger of Magistrate Court (second respondent) was instructed to eject Mairoon A d a ms from the premises in question. Mairoon A d am and Bus-Stop Hardware have since then been in and out of court seeking to stay the execution of the ejectment order; for example the Bus stop Hardware, (Pty) Ltd in CIV/APN/154/98 and in CIV/APN/309/98 approached the Chief Justice and Ramodibedi J. respectively seeking an order interdicting the present first and second respondents "from taking any steps to eject the applicant from the premises which it occupies at or on Plot N o. 13283 - 232, Cathedral Area, opposite Manonyane Center". In a fully reasoned judgment, the learned Chief Justice, in discharging the rule nisi found that Bus Stop Hardware (Pty) Ltd had failed to prove that it was in occupation of the premises in question. It was found that it was in fact Mairoon A d am w ho was in occupation and that the latter finding had been reached by the Magistrate in granting a summary judgment in CC424/97 against Mairoon A d a m. More importantly the learned Chief Justice had this to say:- "Mairoon A d am is not an outsider but a director of the applicant (Bus Stop Hardware (Pty) Ltd) and if she knew that she was not in occupation of the premises but the applicant was, she ought to have merely stated that fact. There was absolutely no reason w hy she did not even reveal that it was the applicant which was and is still in occupation of the premises. By saying that she was in occupation in terms of a sub- lease entered between herself and one Retselisitsoe Mokhutle, Mairoon A d am actually supports the first respondents' case that she was the person in occupation of the premises. She cannot n ow be heard in these proceedings to contradict herself and say that it was the applicant w ho was in occupation of the premises." The rule nisi having been discharged on the 16th day of July 1998 by the learned Chief Justice, a new application has again been moved before this court, n ow by Retselisitsoe K h o mo Mokhutle (as estate executor) again seeking a similar relief- that is, "interdicting the first and second Respondents from ejecting Bus Stop Hardware (Pty) Ltd from premises situated at Plot 36-37, Pitso Area, Maseru". This application was moved on the 7th August 1998 (some only three weeks after the learned Chief Justice discharged a rule nisi involving Bus Stop Hardware (Pty) Ltd. I have already alluded to the reasons why the rule was discharged. It is interesting in this present application to ask why, if the Bus Stop Hardware Pty Ltd is indeed in occupation of the said premises, it was not joined as a second applicant. To do so would be cover a matter res judicata; it was thought wise therefore to change the applicant whilst seeking the same relief. The learned Chief Justice has already made a finding in CIV/APN/154/98 that Plot 36-37 Pitso Ground, Cathedral Area is not being occupied by Bus Stop Hardware Pty Ltd and in this application I cannot violate that finding and rule that Bus Stop Hardware is in occupation of the said premises. In this application Applicant has stated in his affidavit that he entered into a verbal sublease agreement with Bus Stop Hardware (Pty) Ltd; the court has some obvious reservations about that agreement. Firstly, when was the agreement concluded, where, and what was the rental and duration of the sub-lease? Annexure " N" of the Applicant's papers is a sub-lease dated 3rd September 1988 between Retselisitsoe Mokhutle and Mairoon A h m ed A d am over site No.36-37 Cathedral Area and it has not been explained w hy in the present case, the Applicant elected to enter into a tenuous verbal sub-lease agreement. It is rather difficult also to envisage h ow the Applicant could enter into a verbal lease agreement with a company without involving its directors in the verbal negotiations. What is clear is that no leave to appeal against my brother Monapathi J's judgment in C1V/A/18/97 (re:CC 424/97) has been granted or an appeal against the Chief Justice's judgment in CIV/APN/154/98 has been noted; if the latter appeal had indeed been noted, Bus Stop Hardware (Pty) Ltd could have applied for stay of execution pending the flnalization of the appeal. Rule 6 (2) of the Court of Appeal Rules clearly states: "(2) The appellant may, at any time after he has noted an appeal, apply to the Judge of the High Court whose decision is appealed from for leave to stay execution". This procedure has been blatantly ignored and instead a forum seeking exercise was cunningly embarked upon. The Applicant in this application states:- 24. "I have been advised that Mairoon A d a ms has appealed against the summary judgment which forms the basis of the ejectment order and that the prospects of success of such appeal are good. I have also been advised that B US S T OP H A R D W A RE (PTY) L TD has appealed against the judgment of the Chief Justice in case No 154/98 (sic) - (CIV/APN/154/98) and that the prospects of success are also good. The possibility therefore exists that even if B US S T OP H A R D W A RE (PTY) L TD is ejected, it may only be temporary." One can commend that if the prospects are good for both appeals, w hy was the application for stay of execution not made before the learned judge w ho dismissed the appeal against the summary judgment or w ho discharged the rule nisi in CIV/APN/154/98? I behold an attempt to mix and jingle applicants w ho seek only one relief, namely staying of execution of a court order. It must be stated categorically that the judgments of the High Court must be obeyed and complied with (unless appealed against and/stayed), and the legal practitioners must always seek to follow the procedure laid down in the rules of court and not to follow blindly the instructions of client! The main objective of this application and other similar applications that have come and gone before it, is simply to protect the occupancy of Bus Stop Hardware Pty Ltd; it should however be observed that the right to occupy does not affect the rights of ownership over this plot No.36-37-that is, can the ejection of Bus-Stop Hardware from this plot affect the ownership rights of the Applicant? I think not. Whatever loss m ay occur to Applicant m ay be loss of rental, about which the Court has not been informed. 1 also feel bound to comment that even during the hearing of this application before this court on the 24th August 1998 another application was filed and moved before the Maseru Subordinate Court ( CC 670/98) in which the Bus Stop Hardware (Pty) Ltd sought to interdict the present first and second respondents "from Giving effect to and/or executing the warrant of ejectment issued in CC424/97 pending the outcome of the in terms rule nisi issued of paragraph 2 below 1.1 interdicting the Respondents from giving effect to and/or executing the warrant of ejectment issued in CC.424/1997 pending the outcome of the rule nisi issued in terms of paragraph 2 below. 1.2 interdicting the Respondents from in any way interfering with the 1st Respondent's occupation of a portion of the premises situated at No.36 - 37 Cathedral Area opposite Manonyane Centre, Maseru Urban Area, Maseru pending the outcome of the rule nisi issued in terms of paragraph 2. 2. THAT a rule nisi do hereby issue calling upon the Respondents to show cause, if any, on 13th October 1998 at 10.00 am or so soon thereafter as Counsel may be heard why:- 2.1 the orders contained in paragraph one above should not be made final; 2.2 the warrant of ejectment should not be stayed pending the outcome of an appeal of the 2nd Applicant against a summary judgment which was granted in CC 424/97 (and which judgment has not been set aside on appeal to the High Court). 2.3 the Respondents should not be interdicted from ejecting the First Applicant from the aforesaid premises. 2.4 the Respondent w ho opposes this application should not be ordered to pay the costs of this application. 2.5 Further and/or alternative relief shall not be granted to the one or other and/or both applicants. 3. The order in paragraph 1 above shall apply with immediate effect as interim orders." The futility and desperation of this application is open and transparent for all to see. It seems to m e, and I think justly so, that the present applicant, before deciding to launch this application, should have wisely asked whether the judgments in CIV/A/18/97 and CIV/APN/154/97 had been appealed against instead of embarking on a forum seeking exercise! Such exercise can have two results which are totally unwholesome- (a) abuse of the Court process thereby delaying justice of the case; (b) antagonizing judicial officers w ho inadvertently give conflicting orders or judgments. The point at issue is whether the present applicant has locus standi to bring a temporary interdict restraining the execution of a court order in CC 424/97. The affidavit of the applicant Retselisitsoe K h o mo Mokhutle is quite lengthy and runs into some 27 paragraphs! But all that is alleged therein is- (a) that he is the executor to administer the estate of the late Frank Moeti Mokhutle (see Annexure "A") (b) that as a result he is the rightful heir to the estate which incorporates Plot 36-37 Pitso Ground, Cathedral Area. (c) that the sub-lease held by the first respondent is to be nullified because one Mantebaleng Adelinah Mokhutle had no right (and title) to enter into a sub-lease with the first respondent (see Para 18 of the Applicant's affidavit.) In this case, what is materially in issue and of relevance is not the ownership rights over the plot 36- 37 or a matter of trespass; what is in issue is whether Bus Stop Hardware (Pty) Ltd are lawfully or actually occupying Plot 36-37, and if not, the Prayer 2.2 of the notice of motion should not succeed; and one m ay again c o m m e nd that though the Applicant seeks relief that the Bus-Stop Hardware (Pty) Ltd should not be ejected, has not been cited either as a co-applicant in these proceedings. If it seeks a restraining order protecting its rights under a sub-lease on this plot, Bus Stop Hardware should m o ve the court on its o wn behalf and "for its o wn cause,"but that unfortunately cannot be because the learned Chief Justice discharged the rule in CIV/APN/154/98. We all end up speaking in circles over one and the same issue. In brief the judgment of learned magistrate in CC 424/97 and the appellate decision of the High Court in CIV/A/18/97 and the judgment of learned Chief Justice in CIV/APN/154/98 must be given effect to because neither notices for leave to appeal or of an appeal thereto has been annexed to the papers. Most importantly it must be noted that in this application, the applicant, as the purported owner or lawful possessor, is not being sought to be ejected, but on the contrary, the applicant seeks to protect from ejectment a tenant. This court has not been supplied with any facts or documents evidencing tenancy agreement between the applicant and the Bus Stop Hardware; the existence of any verbal sub-lease agreement has not been sufficiently established nor terms thereof proven and it is therefore not easy to grant the applicant the relief he seeks, as an executor. I have purposely chosen not to deal with the controversial issue of the Applicant's rights over Plot N o. 36-37 because to do so would be to prejudge the issue which would be contentious in the proposed action. The applicant indeed confesses to have foreseen the existence of dispute of fact in the present case, (Affidavit Para 9.3) namely, whether Mairoon A d am or Bus Stop Hardware Pty Ltd was in occupation at the premises in question and whether there existed any sublease between the applicant and the Bus Stop Hardware Pty Ltd to justify the occupancy of the premises in question by the latter. The learned Chief Justice states:- "In the present case there can be no doubt that the applicant realised w h en (it) launched this application that a serious dispute of fact had already developed because of the litigation between its director Mairoon A d am and the first respondent. The applicant took this risk knowing very well that there was a serious dispute of fact regarding w ho was in occupation of the premises in dispute. On this ground alone the application should be dismissed. The applicant ought to have proceeded by way of action."(CIV/APN/154/98) The important issue is whether the present applicant is properly before this court in that he has a direct legal interest likely to suffer actual or potential prejudice if the ejectment order under CC 424/97 is executed. It is important also to note that is not the applicant w ho is sought to be ejected but the Mairoon A d a m/ or Bus Stop Hardware - from of Plot N o. 36-37. But neither have not been cited in this application either as second or third applicants; this could not be permitted because Bus Stop Hardware was an applicant in CIV/APN/154/98 in which the rule nisi was discharged with costs on the 16th July 1998. The existing ejectment order is against Mairoon A d am and not against Bus Stop Hardware (Pty) Ltd because if it was the Bus Stop Hardware which was occupying and conducting hardware business at Plot 36-37 Pitso Ground opposite Manonyane Centre, this fact should have be pleaded before the Magistrate in CC 424/97. It is clear that the agreement between the present applicant and the Bus Stop Hardware is a verbal one and most tenuous at that in that the terms thereof are not explicitly expressed. I am of the view that in application proceedings the court should not give judgment in favour of or against a party not cited in the papers because a party not cited can neither be judgment creditor or judgment debtor. In this case the ejection order made by the Chief Magistrate in CC 424/97 must be complied with until set aside or stayed by the court that granted it or the court that dismissed the appeal. Rule 6 (2) of the Court of Appeal Rules (L. N. 10 of 1980) would apply only after leave to appeal had been applied for and granted by Monapathi J.; it seems to me that no such application for leave to appeal has been formally made before Monapathi J, The applicant prays that the execution be stayed pending institution him by civil summons seeking a declarator of ownership rights in his favour over the premises at Plot No.36-37. It seems to me that the applicant is seeking a wrong remedy/relief before a wrong court. Ejectment order does not affect his proprietary rights as m ay be established later. Ejectment of Mairoon A d am will perhaps make him lose the monthly rental he is receiving from the hardware business. What is important to decide is whether the considerations of financial loss likely to be suffered by applicant when Bus Stop Hardware or Mairoon is ejected from Plot 36-37 should have preference over the rights of the first respondent w ho has an ejectment order in his favour. It is alleged by the Applicant that the Bus Stop Hardware (Pty) Ltd is conducting a very lucrative business at Plot No.36-37 with a turn-over of well in excess of Ml million per annum. That m ay be so. Perhaps the rental which the applicant receives from Mairoon and/or Bus Stop Hardware is quite substantial, but this should not be the reason for keeping Mairoon and Bus Stop Hardware in occupation despite the ejectment court order. The Applicant should for his o wn good and interest therefore act with even more haste in establishing his ownership rights over Plot 36-37 instead of seeking to protect tenants. The fact that the Applicant m ay be sued for substantial damages by Bus Stop Hardware (Pty) Ltd if the execution order is executed m ay be a factor in considering where the balance of convenience or hardship lies. The drastic effect of an ejection order was stated in Weber vs Spira 1912 T PD 331 at 333 by De Villiers J. P as follows:- " it would be very drastic to order respondent to vacate premises in which he is actually carrying on his business and it would be a most difficult matter to restore him to the status quo, if the appeal court were to uphold the appeal. He might, in the meantime, have lost customers and the damage to him would be irreparable." In this case it should however be noted that it is not the applicant w ho is being sought to be ejected from Plot N o. 36-37 but his tenant w ho has not been joined as co-applicant. Whilst the execution of ejection order m ay affect the running of the hardware business e.g. loss of some customers, breakages during transfer to another location, increase in transport and n ew rental costs etc., the first respondent is also entitled to the business profit of Plot 36-37. It seems to me that the tug-of-war over these premises will come to an end only if and when applicant sues whosoever is asserting ownership rights over Plot 36-37. During argument Mr Wessels S. C. formally withdrew Prayer 2.1 of the Rule Nisi which read:- "2.1. Suspending the writ of ejectment in favour of First Respondent and in terms whereof First Respondent is entitled to eject one Mairoon A d a ms from the premises situated at Plot 36-37 Cathedral Pitso Area Maseru and which was issued as a consequence of the judgment in CC 424/97". The Court is therefore left to make determination on Prayer 2.2. This prayer for a temporary relief pending the finalization of a civil action which will determine the rightful owner of Plot 36-37 Pitso Ground, Cathedral Area and it seeks to stay the execution of an ejectment order evicting Bus Stop Hardware (Pty) Ltd from the said premises. The requirements for an interlocutory interdict have been stated by Corbett J. in LF Boshoff Investments (Pty) Ltd vs Cape T o wn Municipality 1969 (2) SA 256 at 267- "Briefly these requisites are that the applicant for such temporary relief must show- (a) that the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt. (b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable has to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right. (c) that the balance of convenience favour the granting of interim relief (d) that the applicant has no other satisfactory remedy". It seems that being the executor in the estate of his deceased father Frank Moeti Mokhutle by virtue of Letters of Administration dated 1st July 1998, the applicant was thereby ordinarily clothed with authority wide enough to justify him taking all necessary steps to conserve the estate and to protects its rights and m ay institute interdict proceedings (Jele No vs Ngcango & another 1951 (2) SA 157). Before coming to a final conclusion, the court has therefore to determine the balance of convenience or hardship in the circumstances of the case. In this matter the first respondent chose not to file any answering affidavits wherein he could have addressed this issue, but proceeded under Rule 8(10) (c) on points of law. The papers are therefore one-sided and rather unhelpful on this issue. In determining the issue of balance of convenience, the court must weigh the prejudice the applicant will likely suffer if the interim interdict is not granted against the prejudice the respondent will suffer if it is. (Prest - The L aw and Practice of Interdicts (1996) - p.72 has this to say- "The court must weigh the prejudice the applicant will suffer if the interim interdict is not granted against the prejudice to the respondent if it is. If there is a greater possible prejudice to the respondent, an interim interdict will be refused; if, though there is prejudice to the respondent, that prejudice is less than that of the applicant, the interdict will be granted subject, if they can be imposed, to conditions which will protect the respondent. Hillman Brothers (West Rand) (Pty) Ltd vs V an den Heuwel 1937 W LD 41 at 46; Webster vs Mitchell 1948 (1) SA 1186 at 1192 - 3). The consideration of the balance of convenience is often a decisive factor in an application for an temporary interdict (Moroka Swallows Football Club Ltd vs The Birds Football Club & Others 1987 (2) SA 511 at 536. This consideration requires the exercise of a judicial discretion and where there is a pending action the court must always seek to avoid inflicting what will later be seen to have been a temporary injustice." I can safely assume that the confirmation of the rule nisi in Prayer 2.2 will inconvenience the first respondent in that he will not enjoy the benefit of business at the Plot 36-37 until the outcome of the trial; on the other hand the discharge of the rule (resulting in ejectment of Bus Stop Hardware) m ay result in a financial loss therefrom (claimable from the Applicant) which m ay be virtually impossible to quantify. The confirmation of the rule m ay on the other hand have the practical effect of preserving the status quo pending the outcome of the trial. Indeed as Holmes J. once said - "I have already stressed the general rule that fairness and justice demand that the status quo be maintained until the final decision is made" - Olympic Passenger Service (Pty) Ltd vs Ramlagan - 1957 (2) SA 382 (N) These hallowed words would be of good use if only it was the applicant himself w ho was being sought to be ejected. In the circumstances of this case, the only interest the applicant has in seeking to protect the occupancy of Bus-Stop Hardware (Pty) Ltd is largely financial; but this court is in the dark as to duration of the verbal sublease or the amount of rental. The Applicant has failed to establish a prima facie right to seek the stay of execution in this case. It is therefore ordered that the rule nisi be discharged with costs. S. N. P E E TE J U D GE For Applicant : Mr Wessels S. C (instructed by Mr Le Roux/Monyako & Co For Respondents : Mr K. Sello