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[2022] ZAMPMBHC 35
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Save The Maize Belt Society v MEC for Agriculture Rural Development Land and Environmental Affairs :Mpumalanga Provincial Government and Others (1029/2019) [2022] ZAMPMBHC 35 (24 May 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 1029/2019
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
24/05/2022
In
the matter between:
SAVE
THE MAIZE BELT SOCIETY
Applicant
and
THE
MEC FOR AGRICULTURE, RURAL DEVELOPMENT,
LAND
AND ENVIRONMENTAL AFFAIRS: MPUMALANGA
PROVINCIAL
GOVERNMENT
First Respondent
CHIEF
DIRECTOR – INTERGRATED ENVIRONMENTAL
AUTHORISATION
DEPARTMENT OF ENVIRONMENTAL
AFFAIRS
Second Respondent
THE
DIRECTOR – APPEALS AND LEGAL REVIEW
DEPARTMENT
OF ENVIRONMENTAL AFFAIRS
Third
Respondent
DIALSTAT
TRADING 115 (PTY) LTD
Fourth
Respondent
J
U D G M E N T
MASHILE
J:
INTRODUCTION
[1]
This is an interlocutory application brought in terms of Uniform Rule
of Court 42(1)(b).
On 11 May 2021, granting an order that favoured
the Fourth Respondent (“Dialstat”) in the main case, this
Court per
Legodi JP directed firstly, that the decision of the First
Respondent (“the MEC”) dated 19 November 2018 dismissing
the appeal of the Applicant (“the Society”) on procedural
grounds be reviewed and set aside. Secondly, that the internal
appeal
by the Society be referred back to the MEC for consideration of the
appeal on merits. Lastly, he also ordered that costs
be borne by all
the Respondents jointly and severally the one paying the others to be
absolved. The other directions that he gave
concern mainly how the
MEC was expected to go about observing the order of the Court. As
such, I do not deem it necessary to burden
this judgment with their
description.
[2]
At the centre of the controversy in this application is whether or
not the Court in
making the cost order in the main application as
outlined in Paragraph 1
supra
made a patent error as envisaged in the Rule. It was common cause
between the Society and Dialstat that the decision of the MEC
ought
to be set aside. That said, they disagreed on substitution with the
former preferring that the matter be referred back to
the MEC for
reconsideration while the latter insisted on the Court substituting
the decision of the MEC for its own.
[3]
This Court weighed up the arguments of the parties and resolved that
it would be proper
to refer the matter back to the MEC. Insofar as
the costs of the matter were concerned, the first notice of motion of
the Society
sought costs against any Respondent who opposed the
application. Later on, it amended it twice, one delivered on 5
December 2019
where it seeks costs against the Respondents excluding
Dialstat and another, which it delivered on 12 February 2020 where it
asks
for costs against all four Respondents.
[4]
The Respondents will be referred to in their actual names but where I
mention Respondents
it will mean the First to Third Respondents. The
Fourth Respondent will simply be referred to as Dialstat. This
application, on
the face of it, has been brought by the Society, yet
Dialstat is in reality the Applicant even though it is cited as the
fourth
Respondent. I do not wish to pursue the point any further but
its peculiarity attracted my comment. The decision of the Society
not
to ask for costs against Dialstat was inspired by the latter not
opposing the review application. Notwithstanding the Society’s
express decision not to ask for costs against Dialstat, this Court
granted costs against all the Respondents with Dialstat included
jointly and severally.
[5]
It is this decision of the Court that Dialstat wants to set aside on
the basis of
Rule 42(1)(b). The Society is not opposing this
application. The Respondents are opposing this application on the
basis that firstly,
the High Court was legally entitled to grant an
order of costs against Dialstat and secondly, that Dialstat was
afforded a general
opportunity to make submissions on costs in
consequence of a directive issued by this Court at the hearing.
FACTUAL
BACKGROUND
[6]
The facts that led to this Court granting the 11 May 2021 order in
the main application
are largely a matter of common cause. On 6
December 2010 and in terms of
Section 22
of the
Mineral and Petroleum
Resources Development Act 28 of 2002
, Dialstat applied for a mining
right to mine coal on various properties in the district of Delmas,
Mpumalanga. At the time Dialstat
submitted its application, it was
required to obtain various different regulatory approvals in order to
commence mining, including
an environmental authorisation in terms of
s24
of National Environmental Management Act ,107 of 1998 (“NEMA”).
[7]
Dialstat applied for an environmental authorisation on 23 October
2013. The authorisation
was granted by the second Respondent (“the
Chief Director”) on 11 November 2014. On 9 December 2014, the
Society submitted
an internal appeal to the MEC against the Chief
Director’s decision, in terms of s43 of NEMA (read with
regulation 60 of
the 2010 Environmental Impact Assessment
Regulations) (“EIA”). Dialstat opposed the appeal and
submitted an answer
to the appeal on 12 January 2015. The Society
replied on or about 22 April 2015. Dialstat filed a supplementary
response on 12
May 2015.
[8]
In terms of the 2010 EIA Regulations, the MEC ought to have
determined the appeal
on or before 24 July 2015, which he failed to
do. It is alleged by Dialstat that while the MEC’s office
assured it on no
less than five occasions during 2016 and 2017 that a
decision was being prepared, in fact, at that time the Department had
lost
all of the files relating to the application. The promises
notwithstanding, the MEC could never have prepared a decision at this
time. It therefore did not come as a surprise when the MEC did not
determine the appeal. Dialstat was obliged to approach this
Court on
8 March 2018 to obtain an order compelling him to do so.
[9]
The Society opposed this application but in September 2018 this Court
ordered the
MEC to determine the appeal on or before 20 October 2018.
The MEC did not comply with the order timeously. Having initially
requested
an extension to determine the appeal to the end of November
2018, the MEC’s decision was eventually forwarded to Dialstat
on 5 December 2018, although it was dated 19 November 2018. The MEC
resolved that there was no appeal before him because the Society’s
appeal did not contain any grounds of appeal.
[10]
According to Dialstat, this decision was manifestly wrong. The
Society and Dialstat both understood
that the Society’s grounds
of appeal were contained in the appeal. Dialstat had submitted an
answer in the appeal addressing
those grounds of appeal. As such,
there was no dispute between Dialstat and the Society on this issue.
Following this, on or about
25 March 2019, the Society launched an
application to review and set aside the MEC’s decision and to
have its appeal remitted
to him for reconsideration.
[11]
The Society also sought to set aside the decision of the Chief
Director. Neither the MEC nor
the Chief Director was able to provide
a record for the application. In consequence, Dialstat had to
reconstruct one. A recreated
record was ultimately finalised on 27
November 2019 and the Society delivered a supplementary founding
affidavit on or about 5
December 2019. Dialstat delivered an
answering affidavit on 25 March 2020, as did the Chief Director.
[12]
In her affidavit, the Chief Director alleged that the MEC was not a
party to the application
because, although he was correctly described
in the founding affidavit, he was incorrectly referred to as the
Minister in the header
to the notice of motion and founding
affidavit. The Chief Director raised the alleged non-joinder of the
MEC as a point
in limine
in the application. Dialstat alleges that this point was raised
despite the fact that the MEC’s office had been served with
the
application and was aware that the MEC’s decision was sought to
be set aside.
[13]
Besides, the MEC’s office had assisted in preparing a record of
his decision for purposes
of the review application. The MEC was also
correctly cited in the founding affidavit. The incorrect description
of him in the
headings to the Society’s papers was clearly
nothing more than a clerical error, and the Society (on Dialstat’s
suggestion)
applied to amend these descriptions. The Respondents
opposed the amendment and persisted with the point
in
limine
, which was then argued on 19
November 2020. The point was dismissed at the hearing, but the
Respondents then immediately sought
leave to file an answering
affidavit on behalf of the MEC, which the Court granted.
[14]
The MEC delivered an answering affidavit on 14 January 2021. The MEC
conceded in his answering
affidavit that his decision was wrong but
nonetheless persisted that his decision ought not to be set aside.
The matter was set
down for hearing on 4 May 2021. A few weeks before
the hearing, the MEC filed supplementary heads of argument and a
practice note
in which he expressly conceded that his decision should
be set aside. Additionally, he then supported Dialstat’s
submission
that his decision should be substituted by the Court and
that the appeal should not be remitted to him for reconsideration.
[15]
The parties therefore only dealt with the issue of substitution at
the hearing. This Court handed
down its judgment on 11 May 2021. It
set aside the MEC’s decision but remitted the appeal back to
him for reconsideration
rather than substituting his decision and
ordered all of the Respondents to pay the costs of the application,
jointly and severally.
Aggrieved by the Court’s decision on
payment of costs, Dialstat launched this application on 1 June 2021.
The Respondents
delivered their answering affidavit on 14 July 2021.
ISSUES
[16]
The main issue for consideration is whether or not the facts
described above support the allegation
that there exists a patent
error in the cost order that the Court has made. Below follows the
law that will guide this Court in
determining the outcome of this
judgment.
LEGAL
FRAMEWORK
[17]
Obviously the starting point has to be the
provisions of Rule 42(1)(b) being the one in terms of which this
application has been
brought. The Rule provides that
a
Court may:
“
mero
motu or upon the application of any party, rescind or vary …
an order or judgment in which there is an ambiguity, or
a patent
error or omission, but only to the extent of such ambiguity, error or
omission”
[18]
A patent error occurs where an order does not reflect the true or
real intention of the Court
that made it. See in this regard
Consolidated
Leasing Corporation Ltd v McMullin
[1]
.
The Court’s intention is primarily determined by reference to
its judgment. To this extent, it is crucial to read the judgment
with
in mind, the applicable general rules of interpretation. Perhaps it
might be prudent to refer to the case of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2]
where the following was
stated:
“…
.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to
those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light of
all these
factors. The process is objective not subjective. A sensible meaning
is to be preferred to one that leads to insensible
or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation
to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute
or statutory
instrument is to cross the divide between interpretation and
legislation. In a contractual context it is to make a
contract for
the parties other than the one they in fact made. The
“
inevitable
point of departure is the language of the provision itself”
,
read in context and having regard to the purpose of the provision and
the background to the preparation and production of the
document.”
[19]
An order may therefore contain a patent error if there is no evidence
that it reflects a considered
decision by a Court given expression in
its judgment. The case of
Seatle
v Protea Assurance Co Ltd
[3]
finds
application here. The correction of a patent error must not alter the
sense or substance of the Court’s judgment. See,
Firestone
South Africa (Pty) Ltd v Gentiruco AG
[4]
,
which has been approved and applied in subsequent cases including the
Constitutional Court.
[20]
Rule 42(1) provides further that the powers identified in sub-rules
(a) – (c) are “
in addition
to any other powers it might have” to rescind or vary an
order”
. One of those other powers
is the power to reconsider an award of costs made by a Court without
counsel having been afforded an
opportunity to address the Court on
the appropriateness of such an order. The Appellate Division, as it
then was, in the Firestone
case
supra,
has explained that the basis for this rule is that:
“
the
Court is always regarded as having made its original order ‘with
the implied understanding’ that it is open to the
mulcted party
(or perhaps any party ‘aggrieved’ by the order …)
to be subsequently heard on the appropriate
order as to costs.”
ANALYSIS
WHETHER
OR NOT THE COST ORDER AGAINST DIALSTAT WAS A PATENT ERROR
[21]
The Respondents’ assertions in this respect is that a Court
always has a discretion to
or not to grant costs against any party.
Besides, argue the Respondents, Dialstat cannot cry foul because it
has squandered the
general opportunity the Court had afforded to all
the parties at the hearing of the main case to prepare further heads
of argument
making submissions on costs. The Respondents conclude
that there is no merit in the argument that Dialstat must be excused
from
paying the costs jointly and severally the one paying the others
to be absolved.
[22]
The assertion of the Respondents on costs must be weighed against the
submissions made by the
Society both in its papers and oral argument
in Court. In its second amended notice of motion delivered on 12
February 2020, the
Society specifically seeks costs against all four
Respondents but in its supplementary heads delivered on 25 February
2021 it submits
that if the application was reviewed and set aside,
it would be a substantial success and the Respondents, with the
exception of
Dialstat, should be mulcted with costs.
[23]
The revised supplementary heads of the Society served on 1 March 2021
and two draft orders submitted
before the hearing do not alter its
stance on costs. Even during oral argument before Court on the date
of hearing, Counsel for
the Society made it clear that the Society
expected the Respondents, and not Dialstat, to pay the costs for all
the interlocutory
applications that preceded the hearing of the
review itself. Counsel went on to validate the approach of the
Society on costs by
adding that the review application became
inexorable as a result of the unbecoming conduct of the MEC. Added to
this is the fact
that Dialstat did not oppose the Society
consequently it had no reason to ask for costs against a party that
agreed with it.
[24]
Given the trite principle that a Court would invariably furnish
reasons for the order that it
makes, the question becomes why in this
instance did it depart from that rule without an account of its
decision? The probable
answer is that the Court only looked at the
last amended notice of motion and noted that costs were sought
against all the Respondents.
Had it seen the draft orders, the
supplemented heads and the revised version thereof and given a proper
consideration to Counsel’s
oral argument on costs, it would
have sought the views of the parties concerned before making an order
different from that requested
by the Society.
[25]
Fortifying the approach adopted above is that even in its judgment,
the Court makes no comment
at all on why it did so. I find myself
agreeing with Counsel for Dialstat that it would be staggering that
the judgment would be
replete with reasons on the substantive
controversy between the parties yet be short on reasons for the cost
order. This omission
deeply suggests that the order was an
inadvertent patent error as contemplated in Rule 42(1)(b).
[26]
Turning then to the question whether or not the alteration of the
Court order to reflect its
true intention will interfere with the
substance of the Court order. Once I have concluded that the granting
of the costs against
Dialstat was a patent error, it means that the
Court’s intention could not have been to grant costs against
all the Respondents
without exception. Had the Court been mindful of
all the facts surrounding the question of the costs, it would have
granted costs
as requested by the Society. In the result, I find it
exceedingly difficult to fathom how a variation of the order to
reflect what
could have been the actual intention of the Court will
modify the general theme of the order.
[27]
Would the Court have made an adverse cost order against Dialstat had
it been conscious of the
submissions of the Society on costs? The
answer has to be in the negative because the general rule is that if
a Court intends to
depart from the wishes of a party on costs, it
would invite representations from the affected party on the subject.
The Court in
this instance did not call upon Dialstat to state why it
would be inappropriate to mulct it with costs. The only reasonable
inference
to draw is that had it been aware it would not have done
so.
[28]
Additionally, it should be borne in mind that the decision by the MEC
to decline to hear the
appeal on the basis that it lacked grounds of
appeal was essentially in favour of Dialstat. However, noticing that
the MEC’s
decision was conspicuously incorrect, it supported
the review application by the Society albeit that its approach on
whether to
substitute or remit to the MEC was at variance. The MEC
alone was responsible for the matter being taken to Court. Strangely,
shortly
before the hearing of the review, he conceded that contrary
to his earlier opinion, the appeal did contained grounds of appeal.
Given those facts, why should Dialstat pay cost jointly and severally
with the other Respondents?
[29]
To the extent that the Respondents contend that the order of the
Court is consistent with the
rule that costs follow results, they
need to be reminded that the Society and Dialstat were in agreement
that the MEC’s decision
was wrong and that it had to be
reviewed and set aside. Insofar as they were concerned, the matter
could have been resolved without
the Court. So, the dispute whether
or not to remit was not the cause of the matter proceeding to Court.
The reason for that was
the MEC’s persistence that the appeal
lacked grounds for the appeal. This is the disagreement that forced
the parties to
approach Court.
[30]
The question concerning whether to substitute or remit to the MEC
therefore arose subsequently.
Had the MEC not insisted on the matter
proceeding to Court, the question of substitution or referral back to
the MEC would not
have been considered at all by the Court. There are
just so many reasons why the MEC should be mulcted with costs.
[31]
some of them are the gratuitous and unconscionable delay in hearing
the matter and when he eventually
heard it, he made a discernibly
incorrect decision. As though that was not enough, he raised
non-joinder of the MEC on the ground
that he was incorrectly
described. As the Court remarked when dismissing the point, it was
completely fallacious because although
there was a cosmetic error in
typing, it was one that was glaring and could have been corrected
without the need for raising the
non-joinder.
[32]
The Respondents are disingenuous by claiming that the Court had
afforded Dialstat to make representations
on costs generally. This
allegation does not square up with what their Counsel states in his
heads, which reads: “the parties
have been directed to file
these heads of argument in which the issue of costs addressed
pertaining to the interlocutory applications
for, compelling the
State Respondents to file the Uniform Rule 53 record, and the
application for condonation of filing supplementary
Uniform Rule 53
record, respectively” (So, it is apparent from the submission
of the Respondents’ Counsel that the
representations related to
costs other than those of the review application itself. This
behavior of deliberate distortion of facts
deserves censure in the
form of costs.
[33]
Lastly and as submitted by Counsel for Dialstat, assuming that the
Court indeed gave Dialstat
opportunity to make representations on
costs, why would it have done so especially in circumstances where
firstly, the Society
was not seeking costs against it. Secondly and
perhaps most importantly, the Respondents themselves were not asking
that Dialstat
be directed to pay costs jointly and severally with
them. Thus, it is extraordinary that the Respondents would now
persists that
Dialstat should be liable for costs like all of them.
CONCLUSION
[34]
The principle that the Court enjoys discretion whether or not to
order costs against a particular
party remains. That is not the point
though. Where it exercises that discretion, it is anticipated that it
would furnish reasons
for its decision or if it does not, it would
invite the parties to state why it should not exercise such
discretion in a certain
manner. The fact that the Court in this
instance did not do so is an intimation that had it done so, it would
have adhered to the
general rule. The fact that it does not, must as
such, be a patent error vulnerable to a rescission in terms of Rule
42(1)(b).
The application must succeed.
ORDER
[35]
Against the background above, I am constrained to make the following
order:
1.
The order of this court dated 11 May 2021
on costs is set aside and rescinded and is substituted for the
following:
“
The
First to Third Respondents in the main review application are
directed to pay the costs of the Society jointly and severally,
the
one paying the others to be absolved.”;
2.
Insofar as the costs hereof are
concerned, the First to Third Respondents are liable for the costs of
Dialstat, which costs include
those of two Counsel, where so
employed.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 24 May 2022 at 10:00.
APPEARANCES:
Counsel
for the Applicant: Adv
MA Wesley SC
Instructed
by:
Norton
Rose Fulbright South Africa Inc
Counsel
for the State Respondents: Adv
S Mpakane
Instructed
by:
The
office of State
Attorney, Pretoria
Date
of Judgment:
24 May 2022
[1]
1975 (3) SA 606
(T) at 608E – F
[2]
2012(4)
SA 593 (SCA) at para 18
[3]
1984 (2) SA 537
(C) at 541C
[4]
1977 (4) SA 298
(A) at 307D