The metaphor that the “horse has bolted” has been used frequently by our courts, although not with a consistent result. This article examines some of the different ways that our courts have applied the “bolting horse principle” – namely the principle that one ought not to grant relief in a court order where the granting of the court order as such would have no effect, with the aim of showing that its application, and the consequences thereof, are less consistent than ought to be the case.
Westinghouse Electric Belgium SA v Eskom Holdings (SOC) Ltd and Another
In this case a tenderer to Eskom’s Koeberg power project was aggrieved because another party (“Areva”) was awarded the tender, based on considerations that were not made clear to all tenderers during the tender process. The court held that Eskom was wrong is giving the tender to the winning party. The applicant (Westinghouse) was hoping that the court would order that it should be substituted as the winning bidder in the place of Areva, but the court held that it was not appropriate to award the tender to Westinghouse due to the following reasons:
1. Areva had already started work and the deadline for completion was looming (which affected South Africa’s power supply);
2. The consequences of substituting Westinghouse for Areva were unknown; and lastly
3. Eskom was in a better position than the court to know what it really needed in a winning tenderer.
So because Areva had already commenced work and the deadline was looming, considerations of the “bolting horse” rendered the entire legal exercise a nullity for Westinghouse.
South African Property Owners Association v Council of the City of Johannesburg Metropolitan Municipality and Others
In this case SAPOA obtained a court order declaring that the City of Johannesburg Metropolitan Municipality had not followed the correct legal process to bring its budget and the rating tariff applied to business and industrial properties into effect for the 2009/2010 financial year. The judgment that confirmed this (in the Supreme Court of Appeal) was handed down only in November 2012, two years after the financial year in question had ended.
The court in this case held that although the municipality had not followed the proper legal process, it was not possible to “unscramble the egg” and undo the rate applied to all business and industrial properties for that year (because of the logistics involved in amending the rates accounts of so many hundreds of thousands of taxpayers, and the huge financial trouble that those amendments may cause the municipality).
This is another case of the “bolting horse” defeating the object of the exercise: the taxpayers concerned who brought the matter to court were looking for effective relief – namely a reduction in the rate that they were charged, because the one that was imposed on them was unlawfully high – but the court refused to grant this relief in the circumstances.
South African Airways Soc v BDFM Publishers (Pty) Ltd and Others
The manner in which the court used the “bolting horse” principle to refuse to provide the applicants with relief in the above cases (which is, in the authors’ view, a failure by the courts to provide effective relief to the applicants, and is thus incorrect in law) must be distinguished from the manner in which it was used by Judge Sutherland in the SAA gag order case. In this case it was widely reported in the press that SAA had obtained an urgent interdict (in the middle of the night) against several media houses preventing them from publishing details of a legal opinion that basically declared that SAA was trading in (or would soon be trading in) reckless conditions due to its difficult financial situation.
The media houses went back to court to set aside the gag order. The court held that the metaphor that the “horse had bolted” was insufficient in this particular case to describe the situation, which was so dire that a new phrase of speech (“like a virus had infected the world’s literate population” with the material that SAA was trying to prevent publication of) was necessary. The judge set aside the gag order on the basis that by the time it was obtained the information had already been disseminated so widely that the order wasn’t worth the paper it was written on.
In the authors’ view, the use of this principle to refuse to give the relief sought was fully justified and correct in law.
Conclusion
So here’s our conclusion, summarised in some of the best loved phrases of all time:
Litigation is like the wild, Wild West: the outcome is less certain than you would want it to be. When navigating these stormy waters you need the right captain to pilot your ship – a captain who won’t throw good money after bad, who understands the ins and outs of not only the law but the social, political and economic factors that influence the outcomes of cases, and who (where necessary) is prepared to take the road less travelled to achieve the desired result. You also need someone who will readily put their foot down and tell you when you’re wasting your time (should this be the case).
Most often, the quality of your legal representation will influence the outcome of your case. When you are battling not only the evils of the concrete jungle but also the uncertainty of the manner in which “settled” legal principles are applied by our courts – like anything in life – when you pick your legal representative, you often get what you pay for.
Authors
Chantelle Gladwin
Partner at Schindlers Attorneys
Phone: +27 (0) 11 448 9678
gladwin@schindlers.co.za
Kholofelo Sekele
Candidate Attorney at Schindlers Attorneys
Phone: +27 (0) 11 448 9684
sekele@schindlers.co.za
