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[2022] ZAGPPHC 782
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Empire Crossing Development (Pty) Ltd and Another v Minister of Energy and Others (71333/2018) [2022] ZAGPPHC 782 (13 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
: 71333/2018
Reportable:
NO
OF
INTEREST TO OTHER JUDGES: NO
13
OCTOBER 2022
In
the matter between:
EMPIRE
CROSSING DEVELOPMENT (PTY) LTD
First Applicant
TEXICAM
INVESTMENTS (PTY) LTD
Second
Applicant
and
THE
MINISTER OF ENERGY
First
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
Second
Respondent
TOM
CAMPHER MOTORS
Third
Respondent
ENGEN
EMPIRE CROSSING
Fourth
Respondent
JUDGMENT:
LEAVE TO APPEAL
KUBUSHI
J
[1]
The First and Second Applicants (“the
Applicants”) seek leave to appeal the whole judgment and order
of this Court dated
21 July 2022 and handed down electronically on
the same date, refusing the relief they sought in the main
application.
[2]
A judgment in respect of the application
for leave to appeal was handed down electronically on 13 September
2022. On 14 September
2022, in a letter from the attorneys of record
of the Third Respondent, this Court was made aware of what was
alleged to be some
material errors of fact emanating from the said
judgment.
2.1
In paragraph 3 of the said judgment, it
was stated that “
As in the
hearing of the main application, the Third and Fourth Respondents are
not taking part in these proceedings.”
The
statement that the Third and Fourth Respondents did not take part in
the main proceedings is actually an obvious mistake, as
only the
Fourth Respondent did not take part in the main proceedings.
2.2
Labouring under the impression that the
Third Respondent was not a party to the leave to appeal proceedings,
this Court did not
consider the Third Respondent’s heads of
argument which had been filed as arranged with the Court’s
clerk by uploading
on Caselines on 17 August 2022. Thus, at the time
of considering the application for leave to appeal, this Court
erroneously failed
to take
the
Third
Respondent’s
heads
of
argument
into consideration.
[3]
The letter was caused to be circulated
amongst the other parties, that is, the Applicants’ and the
First and Second Respondents’
attorneys’ of record, for
their respective comments. The First and Second Respondents’
attorneys responded to the Third
Respondent’s letter by
indicating that they have noted the various correspondence between
the parties and do not wish to
respond to any of the correspondence,
nor did they wish to make any further submissions.
[4]
The Applicants responded to the said
letter and contended that they were not served with the Third
Respondent’s heads of argument
and were, as such not aware that
the Third Respondent had filed heads of argument. They, further,
argued that this Court has become
functus
officio
after giving judgment, and
cannot entertain the application afresh. The Applicants having argued
as such, proceeded to file their
appeal.
[5]
In response to the Applicants’
answer to the attorneys of the Third Respondent’s letter, it
was commented that the fact
remains that the Third Respondent did not
take part in the proceedings of the application for leave to appeal,
even though the
Third Respondent had timeously filed its heads of
argument by uploading same on Caselines.
It was, further, contended on behalf of
the Third Respondent that, the Third Respondent will be prejudiced
should the Applicants
not succeed in their appeal, because the Third
Respondent will not be able to claim costs against them for the
application for
leave to appeal, due to its, alleged, none
appearance. This Court was, in that regard, urged to
mero
motu
, reconsider the application for
leave to appeal since it is evident that a material error of fact did
occur.
[6]
Based on the aforementioned errors of
fact, which are indeed material, this Court hereby
mero
motu
in terms of Uniform Rule
42(1)(a) varies the judgment and order of this Court handed down on
13 September 2022. The judgment and
order shall, as such, read as
follows:
[7]
The matter is to be determined on the
papers without oral hearing.
The
Applicants, together with the First and Second Respondents did not
file new heads of argument. Only the Third Respondent filed
heads of
argument. As in the hearing of the main application, the Fourth
Respondent is not taking part in the current proceedings.
[8]
In support of the application for leave
to appeal, the Applicants relied on their heads of argument
previously filed, dated 4 March
2022, their supplementary heads of
argument dated 6 May 2022, as well as the grounds of appeal stated in
the application for leave
to appeal. They furthermore, augmented
their heads of argument in a letter dated 12 August 2022 addressed to
the Court.
[9]
The First and Second Respondents in
opposing the application for leave to appeal, relied on the heads of
argument filed during the
hearing of the main application.
[10]
Applications for leave to appeal are
ordinarily brought in terms of
section 17
(1)
(a)
(i) of the
Superior Courts Act 10 of
2013
. The sub-section provides that leave to appeal may only be given
where the judge or judges concerned are of the opinion that the
appeal would have a reasonable prospect of success.
[11]
The Applicants’ grounds for leave
to appeal are succinctly stated in the notice of application for
leave to appeal, and need
not be repeated in this judgment.
The said grounds of appeal have been
fully covered and considered in the judgment the Applicants seek to
appeal.
[12]
Having considered the grounds of appeal
raised by the Applicants and the arguments for and against such
application raised by the
parties in their respective heads of
argument, this Court is of the opinion that there are reasonable
prospects of success on appeal
and that leave to appeal ought to be
granted. This Court has not been persuaded otherwise by the arguments
raised in the Third
Respondent’s heads of argument.
[13]
Consequently, the following order is
made:
1.
Leave to appeal the whole judgment and
order of this Court dated 21 July 2022 to the Full Court of this
Division, is granted to
the First and Second Applicants.
2.
Costs of this application are costs in
the appeal.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand-down is deemed
to be 10h00 on 13 October 2022.
APPEARANCES:
APPLICANTS’
ATTORNEYS:
GERHARD
WAGENAAR
ATTORNEY
APPLICANTS’
COUNSEL:
ADV
S D
WAGENER SC
FIRST
& SECOND RESPONDENTS’
ATTORNEYS:
STATE
ATTORNEY
FIRST
& SECOND RESPONDENT
COUNSEL:
ADV
MMW VAN ZYL SC
THIRD
RESPONDENT’S ATTORNEYS: A
KOCK & ASSOCIATES INC
THIRD
RESPONDENT’S COUNSEL
ADV E VAN
AS SC