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[2023] ZAKZPHC 49
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Special Investigating Unit v Van Kampen and Another (5790/2020P) [2023] ZAKZPHC 49 (3 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No
:
5790/2020P
In
the matter between
:
THE
SPECIAL
INVESTIGATING
UNIT
APPLICANT
and
ANTON
VAN KAMPEN
FIRST
RESPONDENT
THE
MINISTER
OF
PUBLIC
WORKS
SECOND RESPONDENT
In
the matter re:
ANTON
VAN KAMPEN
PLAINTIFF
and
THE
MINISTER OF PUBLIC WORKS
DEFENDANT
ORDER
1.
The Special
Investigation Unit (SIU) is granted leave to intervene in the action
brought by Anton Van Kampen against the Minister
of Public Works
under case
number
5790/2020P
and
is granted leave to join therein as a Second Defendant.
2.
The First
Respondent (Plaintiff) is directed to serve all pleadings, notices
and documents
filed of
record upon the Applicant
within thirty
(30) days of this Order
.
3.
The first
Respondent (Plaintiff) is granted leave to amend the headings of all
documents
filed
of record in
the ma
i
n
and counter
actions to
reflect the joinder.
4.
The Applicant
is directed to deliver any plea
,
exception or
other pleading in may choose to within thirty (30) days of the expiry
of the period referred to in paragraph 2
supra.
5.
The Applicant
is ordered to pay the costs of the application
JUDGEMENT
Delivered
on
:
Mngadi
J
[1]
The applicant
seeks leave to
intervene
as
a party in an action pending
before the
court.
The
plaintiff
in
the
action
opposes
the
application.
The
defendant
in
the action has
not taken any part in the application proceedings
.
The parties
for convenience referred to as in the main action
.
[2]
The
applicant
is the
Special
Investigating
Unit (SIU)
established
in terms
of the Special
Investigating Units and Special Tribunals Act No
.
74
of 1996 (the Act) as amended by promulgation of Proclamation R118 of
2001 in the Government Gazette No. 22531 dated 31 July 2001
.
The plaintiff
is Anton Van Kampen an adult businessperson
.
The defendant
is the Minister of Public Works
,
a National
Minister of the Department
of Public
Works
a
state department
of the
Republic
of
South Africa
.
[3]
The
plaintiff
on
4
September
2020
instituted
an
action
against
the
defendant
claiming arrear rental of certain premises
.
He set out
four claims in terms of four
written lease
agreements concluded with the defendant on
17
December 2015
(claim1 for R434 701
.
27)
,
on 24 March
2016
(claim
2 for R2 059
143.79),
on 24 March
2016 (claim 3
for R3 499 1780
.
90)
and on 24 October
2013 (claim 4
for R2 761 415.22)
.
[4]
The defendant
in response filed a plea and a counter-claim.
The defendant,
apart from raising a special defence, admitted the lease agreements
but stated that they were renewals/extensions
of the then existing
lease agreements.
It claimed the
SIU investigated and found in respect of the then existing lease
agreements that the plaintiff provided less useable
space then the
useable space stipulated in the lease agreements which resulted in an
over-change and overpayments (in rands) of
R482 845
,
R3 401 156
,
R11 889 552,
and R272 376
.
In addition,
defendant claimed an overcharge for the period 1 September 2013 to 31
August 2015 in the total amount of R272 376
.
[5]
The plaintiff
in his plea to the counter-claim
pleaded
,
inter alia
,
prescription
and that in August
2013 the
plaintiff
and
defendant
settled the
dispute
of
issues
relating
to existing
lease
agreements.
Plaintiff,
in addition
,
denied that it
provided less space
than
the space
stipulated in the lease agreements
.
[6]
The pleadings
in the action have closed and discovery completed.
The action is
set down for hearing on August 2023.
[7]
On 1 March
2023,
the
applicant
filed the
application
for leave to
intervene
.
It stated that
on 27 August 2014 by Proclamation R59 of 2014 the President
authorized it to
investigate
certain
allegations
relating
to
the
procurement
and
administration
of leases by the defendant.
It
investigated the lease agreements between plaintiff and defendant. It
found that the plaintiff provided less floor space than
that
stipulated in the lease
agreements
but he charged
for
and
the defendant
paid for
the
full floor
space.
It
resulted in the loss to the defendant in that it paid for a floor
space it could not and it did not use
.
[8]
The applicant
stated that by virtue of its statutory mandate it has a direct real
and substantial interest in the pending proceedings
between the
plaintiff and the defendant
that entitles
it to apply for admission as co-litigant in the pending litigation.
[9]
The plaintiff
in the answering affidavit stated the following
;
the applicant
lacked
locus
standi,
it
does not have a right which will be adversely affected by the relief
the plaintiff seeks in the action, and the applicant has
not made out
a case for intervention and any right which the applicant may have
has
prescribed
.
[10]
Rule 12
provides
'
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may
,
on notice to
all parties, at any stage of the proceedings apply for leave to
intervene as a plaintiff or defendant. The court may
upon such
application make such order
,
including any
order as to costs
,
and give such
directions as to
f
urther
procedure in the action as to it may deem meet.
'
[11]
The test for
intervention is direct and substantial interest in the subject matter
of
the
proceedings
and
whether
wider
consideration
of
convenience
favour
intervention
,
and the
determination of the intervening party
'
s
matter or dispute must depend upon substantially the same question of
law or fact as arises in the proceedings in which leave
is sought to
intervene.
Herbstein
&
Van Winsen
The Civil
Practice
of
the
High Court
of
South
Africa
(5ed)
p225
states
:
'
At
common
law,
it was often
held that a person applying for leave to intervene had to establish
:
(i)
an interest in
the suit or that (his)
interest would
probably
be
affected
;
and
(ii) a common cause of action or
common
ground with the party with whom joinder was being sought.
However, it
was also recognised that several defendants could be joined in the
interest of convenience, equity,
the
saving
of costs and
the avoidance
of a
multiplicity
of actions
The
Court Rules have now created wider grounds for intervention.
In terms of
the Rules it
is
no longer
necessary that the intervening applicant has a common cause of action
or common ground with the plaintiff or a direct
and substantial
interest in the proceedings which are before court
.
A direct and
substantial
interest
in the
proceedings is still a ground for intervention
,
and it
is
often regarded
as dec
i
sive,
but it is not a
sine
qua non
.'
[12]
The applicant
grounds its application on the legislative provisions and the State
President's Proclamation
.
The preamble
to the Special Investigating
Unit Act 74 of
1996 (the Act) states the purpose as follows:
'
To
provide for the establishment of Special Investigating Units for the
purpose of investigating serious malpractices or maladministration
in
connection with the administration of State instructions
,
State assets
and public money as well as any conduct which may seriously harm the
interests
of
the public and of
institution
and conducting
civil proceedings in any court of law or a Special Tribunal on
its
own name or
behalf of state institutions.
'
Section
4(1) of
the
Act
states
:
'
(1)
The functions of a Special
Investigating
Unit are, within the framework of its
terms
of reference
as se out in the proclamation referred to in section 2 (1
)-
(a)
.....
(b)
....
.
(c)
to institute
and conduct civil proceedings
in a Special
Tribunal or any count of law for-
(i)
any relief to
which the State institution concerned is entitled
,
including
the
recovery of
any damages or losses and the prevention of potential damages or
losses
which
may
be
suffered
by
such
a
State
ins
t
itution
.
Proclamation
R59
,
2014 of 27
August 2014 states that whereas there are allegations made
relating
to the affairs of the National Department of Public Works
,
and that the
department suffered losses that may be recovered
,
power is
granted to the SIU to investigate, and institute proceedings
emanating from the investigation including recovery of any
losses
.
It states that
the investigation relates to unlawful or irregular conduct that took
place between 1 January 2003 and 27 August 2014
(the date of the
Proclamation)
or which is
relevant to or connected
with,
incidental
or
ancillary
to
the conduct referred to
.
[13]
The plaintiff
contends that the applicant may institute or defend civil
proceedings,
but it has no power to intervene in pending proceedings
.
Counsel argued
referring to
Special
Investigating Unit re HT Pelatona Projects (Pty) Ltd
v
Nelson
Mandela
Bay
Local
Municipality
2022
JDR
0117
(ECP).
He contends
that
both the Act
and the Proclamation are silent as to the power of the applicant to
intervene in pending proceedings, and that it is
trite that due to
the intrusive nature of the SIU
,
legislative
provisions
granting
it
its
powers
are
interpreted
restrictively.
He argued that
the SIU must provide
its evidence
to the
defendant
and conduct
the litigation
in the name of
the defendant.
It
cannot
,
he argued,
seek to intervene in pending proceedings
to support
the defendant
by
mounting
a dual defence
along
the
defendant.
[14]
The
pending
proceedings
are a
main
claim
and a
counterclaim
.
The applicant
seeks to
intervene
as
a
co-defendant
in
the
main
claim
to
enable
it
to
file
a counterclaim
against the
plaintiff.
It
has no desire to plead to the main claim or to seek any
relief
relating
thereto.
Its
intention is to plead a counterclaim
and seek a
relief. It
intends to
seek a relief on the same grounds and the same relief as the
defendant although it may plead and conduct its case differently.
It is clear
that in relation to the main claim the applicant is not claiming to
be liable to be joined as either a plaintiff or
defendant.
The issues in
the main claim are confined to the plaintiff and the defendant. The
main claim is of relevance to the applicant in
that it cannot seek to
intervene directly to the counterclaim.
[15]
The issue of
overcharging and overpayment relates to the then existing lease
agreements.
The applicant
accept that the renewal or extension lease agreements stipulated
rental not based on a square meter
.
However, the
defendant withheld rental in respect of the lease renewals/extension
based on the findings and advice from the applicant
to effect a set
off against overpayments relating to the then existing lease
agreements
..
[16]
The papers
show that the trial court shall be seized with various special pleas
,
inter alia
,
failure to
give prescribed notices prior to the institution of the action
,
a plea of
prescription
,
a please of
compromise or raised issues having been prev
i
ously
settled
,
issue
of set off
.
It
is undesirable for this court for obvious reasons to express a view
of these special pleas
.
[17]
It is entirely
up to the
litigant in choosing
the manner to
plead its case
.
The court as
long as the pleading is in accordance with the Rules and the law, the
court shall not interfere
with the right
of
a
party
.
The applicant
has not
yet pleaded
its case.
The interest
of the plaintiff is procedurally
safeguarded in
that the applicant is bound to set out its case in its pleading
and the
plaintiff shall have
an opportunity
to respond
to it.
[18]
The court has
a wide discretion in an application for leave to intervene
.
The principles
applicable
in
applications
to
amend
a
pleading
differ
from
those
applicable in applications for leave to intervene
.
The applicant
in an application for leave to intervene
is not
required
to
show
that
if allowed
to intervene
it may
succeed
in the relief
it intends
to
claim
.
It suffices if
it shows that it has a direct and substantial interest in the issues
raised in the matter before court.
It is
generally a fundamental right that one is entitled to participate
in court
proceedings
dealing
with issues he
or she has a direct and substantial interest.
[19]
Intervention
regulated by the provisions of Rule 12 relates to the manner a party
joins the proceedings
.
It does not
deal with the question of whether the party is entitled to be part of
the proceedings
.
The Rule must
be interpreted permissively
.
If the
applicant could have instituted or defended the pending civil
proceedings
,
it is
fallacious to
deny that party
i
ntervention
on the basis that there is no specific provision authorising
that
party
to intervene
in the
proceedings
.
The
essence
is being
entitled to
take part in the pending proceedings
.
The Rule is to
be interpreted in a way that promotes
the
participation
in the pending
proceedings
by those
entitled to participate in it.
In my view
,
Rule 12 in
referring
to
plaintiff
includes
a plaintiff
in
reconvention.
[20]
The
legislature
grants
to
the
applicant
power
to
deal
with
the
issue
for
determination in the action pending between plaintiff and defendant.
It is
statutory mandated
through
civil
proceedings
in
its
own
name
or
in
the
name
of
the
State
institution to recover losses or to prevent losses to the fiscus
.
It has a
direct and substantial
interest
to recover
losses
or to prevent
losses
to the
defendant.
The
law
grants
to
it
an
independent
power
to
be
exercised
,
if
deemed
necessary
,
independently
and in the
best of its abilities within the law.
[21]
The defendant
pleaded to the plaintiff's claim in the manner it chose
to,
and likewise,
it pleaded its counterclaim in the manner it chose to.
The applicant
is not bound by how the defendant pleaded its defence and its
counter- claim
.
If granted
leave to intervene in the action,
it shall plead
its case as it deems fit.
[22]
The applicant
as a result of its investigations worked with the defendant
from the
inception of the litigation
.
It initially
accepted the role of merely assisting
the
defendant in
the litigation.
It belatedly
after the pleadings closed and the matter enrolled for trial sought
intervention.
It created a
delay and inconvenience to the plaintiff.
The plaintiff
contends that the delay causes it prejudice which prejudice is not
addressed a costs order.
Intervention
may be sought at any stage of the proceedings
.
The prejudice
to the
defendant
,
in
my view
,
is
not of such a
nature
to justify
refusal of an application for leave to intervene to a party who has
shown real direct and substantial
interest
in the pending
proceedings.
[23]
The usual rule
is that costs follow the result except if special circumstances exist
for a court to order otherwise.
The applicant
raised the issue, which is the subject of the litigation between the
plaintiff and the defendant.
The litigation
was at its instance
.
It instructed
the defendant to remain in occupation of the premises and to withhold
payment
of
rent. It did not explain its failure to take part in the litigation
from
inception
in its
own
name.
The
plaintiff
after
close
of
the
pleadings
was
justified
to
resist
the
application
for leave to intervene.
In my view
,
the applicant
must bear the costs of the application for leave to intervene
.
[24]
In the result,
it is ordered as follows
:
1.
The Special
Investigation Unit (SIU) is granted leave to intervene in the action
brought by Anton Van Kampen against the Minister
of Public Works
under case
number
5790/2020P
and
is granted leave to join therein as a Second Defendant.
2.
The First
Respondent (Plaintiff) is directed to serve all pleadings
,
notices and
documents
filed of
record upon the Applicant
within thirty
(30) days of this Order
.
3.
The first
Respondent (P
l
aintiff)
is granted leave to amend the headings of all documents
filed
of record in
the main and counter
actions
to reflect the
joinder
.
4.
The Applicant
is directed to deliver any plea
,
exception or
other pleading in may choose to w
i
thin
thirty (30) days of the expiry of the period referred to in paragraph
2
supra
.
5.
The Applicant
is ordered to pay the costs of the application
Mngadi, J
APPEARANCES
Case
Number:
5790/2020
Applicant
represented by:
R.
Padayachee SC
Instructed
by:
State
Attorney
DURBAN
Plaintiff
represented by:
R.
Van Rooyen
Instructed
by:
PG
Sten Attorneys
c/o
Grant & Swanepoel Attorneys
PIETERMARITZBURG
Date
of Hearing:
25
APRIL 2023
Date
of Judgment:
03
MAY 2023