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[2022] ZAECMKHC 38
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Border Deep Sea Angling Association and Others v Minister of Mineral Resources and Energy and Others (3865/2021) [2022] ZAECMKHC 38 (7 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Of
Interest
Case
no: 3865/2021
In
the matter between:
BORDER
DEEP SEA ANGLING ASSOSCIATION
First Applicant
KEI
MOUNTH SKI BOAT CLUB
Second Applicant
NATURAL
JUSTICE
Third Applicant
GREENPEACE
ENVIRONMENTAL ORGANISATION
Fourth Applicant
and
MINISTER
OF MINERAL RESOURCES AND ENERGY
First Respondent
THE
MINISTER OF FORESTRY, FISHERIES AND
ENVIRONMENT
Second Respondent
BG
INTERNATIONAL LIMITED
Third Respondent
SHELL
EXPLORATION AND PRODUCTION
SOUTH
AFRICA BV
Fourth Respondent
IMPACT
AFRICA LIMITED
Fifth Respondent
LEAVE
TO APPEAL JUDGMENT
Govindjee
J
Background
[1]
The applicants launched an application to
interdict the third, fourth and fifth respondents (described for
convenience as ‘Shell’)
from undertaking seismic survey
operations under Exploration Right 12/3/252 (‘the seismic
survey’) from 1 December
2021 onwards (‘the urgent
application’). The urgent application was dismissed with costs,
to include the costs of two
counsel where employed, on 3 December
2021 (‘the judgment’).
[2]
The
applicants’ attorney addressed correspondence to the court on
14 December 2021. Relying on
Biowatch
,
[1]
he enquired whether the court would be inclined to vary its cost
order mero motu. The court afforded the respondents’ attorneys
the opportunity to respond. Shell’s view was that variation of
the costs order would be inappropriate for various reasons.
The
applicants filed a notice of application for leave to appeal the
whole judgment on 20 December 2021. The following directive
was
issued on 28 January 2022:
‘
1.
The court is disinclined to vary its judgment in respect of costs
mero motu in terms of Rule 42.
2. The presiding judge is
available to hear the application for leave to appeal virtually on 23
or 25 March 2022 …
3. Prior to hearing this
application, counsel will be requested to address the court on the
following point:
a.
Given the judgment in
Estate Garlick v Commissioner for Inland
Revenue
1934 AD 499
[‘
Estate Garlick
’] at 503,
is the court debarred from hearing counsel on the appropriateness of
the order of costs and possibly altering the
order of costs already
pronounced by it?
[3]
The
opposed application for leave to appeal was eventually set down for
hearing on 19 May 2022. By that time, the applicants had
indicated
their intention to proceed only in respect of the question of costs.
The remaining grounds for seeking leave to appeal
are the following:
an appeal would have a reasonable prospect of success because costs
should not have been ordered against the
applicants in the
circumstances, alternatively costs should not have been awarded
against the applicants on a proper exercise of
the court’s
discretion in terms of s 32(2) of the National Environmental
Management Act, 1998 (‘NEMA’).
[2]
The
urgent application and costs
[4]
The applicants sought various forms of
relief in their notice of motion dated 29 November 2021. In addition
to applying for a rule
nisi interdicting Shell from undertaking the
seismic survey, the applicants contemplated the filing of a separate
application reviewing
and setting aside various decisions of the
first respondent. Relevant for present purposes was the prayer that
‘unless [an]
application for review and setting aside of the
decisions in annexure A has been instituted by 10 January 2022, any
order made
… shall lapse’ and the prayer ‘that
costs stand over for later determination’. Shell argued that
the application
should be struck from the roll with costs,
alternatively be dismissed with costs, including the costs of two
counsel. Similar submissions
were advanced in heads of argument,
counsel for the first respondent arguing that the application should
be struck from the roll
with costs. The issue of costs was not
addressed in any further detail during argument, and the applicants
made no submissions
on
Biowatch
or s 32(2) of NEMA.
Reconsideration
of the costs order
[5]
In
Estate
Garlick
,
the court confirmed the general rule that an order of court, once
pronounced, cannot be altered or amended. This is because the
court
is then functus officio, ‘so that [the judge] cannot thereafter
alter, supplement, amend, or correct the judgment.’
[3]
Various exceptions were noted, including the following:
[4]
‘
If,
however, counsel in arguing on the merits did not deal with questions
of costs (as often happens, for good reasons) the Court
in giving
judgment after the adjournment may take one of two courses. It may
give judgment on the merits and then invite counsel
to argue on costs
before making its order as to costs; or it may straightaway make an
order of costs, without inviting argument,
but in the latter case it
always does so with the implied understanding that it is open to the
mulcted party, or his counsel, to
be heard on the order of costs. If
as the result of hearing him the Court alters its views as to the
costs, it would not consider
itself debarred from altering the order
of costs already pronounced by it. It seems therefore that this is
another exception to
the general Roman-Dutch rule that an order once
pronounced is unalterable.’
[6]
De
Villiers JA added the following:
[5]
‘
The
party desiring to be heard must however
apply
within a reasonable time
to be heard
… If he decides to ask
to be
heard
as to the costs he
must
then apply
to the Registrar of this
Court to fix a day for hearing argument on the question of costs …
The essential point is that the party
feeling aggrieved by the order of costs must apply to be heard on the
questions of such costs
within a reasonable time after the order of
costs is pronounced by the Judge
.’
(Own emphasis).
[7]
In
Estate
Garlick
,
counsel on both sides had refrained from dealing with the issue of
the costs of the appeal during their argument. After hearing
argument, the court announced that it would take time to consider its
judgment, which was delivered some 20 days later, including
an order
holding Estate Garlick responsible for costs of the appeal. Although
counsel present to note the judgment did not raise
any objection at
the time, the attorneys representing Estate Garlick ‘applied to
the Registrar of this Court [the following
day] to arrange for the
hearing of an application praying the Court to stay the issue of the
order as to costs until such time
as the Court could be reconstituted
as composed when the appeal was heard, in order that the Estate
Garlick might then be heard
on the question of costs’.
[6]
This prompted De Villiers JA to conclude that the attorneys had acted
promptly, so that the costs order was stayed and an opportunity
afforded for the reconstituted court to hear argument on costs.
[7]
[8]
As
counsel for the respondents argued, the present setting is different.
While there was correspondence requesting the court to
vary its costs
order mero motu, there has been no application to be heard on the
issue.
[8]
A similar situation
arose in
Union
Government v Gass
.
[9]
In that matter there had been no argument on costs advanced before
court. The Appellate Division held, with reference to
Estate
Garlick
,
that it had been open to the appellant to apply to be heard on the
issue of costs once it ascertained that costs had been awarded
against it. No such application had been made.
[9]
The court directive raising the possibility
of such a hearing, and even the possibility of an alteration of the
costs order, does
not change that position. This is not mere
formalism. The lack of a proper application negates proper
ventilation of the possible
reasons for reconsideration. No
transcript of the urgent application was obtained and the parties are
not entirely clear as to
what was said and what was omitted during
argument. The respondents were expected to argue possible
reconsideration without knowing
the precise basis for suggesting that
reconsideration was warranted in this instance, perhaps because of
what transpired during
argument in the urgent application. There are
material differences between a letter requesting mero motu
reconsideration and variation,
a directive seeking clarification on
whether courts, in general, are permitted to reconsider their orders,
and an actual application
to be heard on an issue given the specific
facts of a particular matter.
[10]
It follows that there is no basis for
reconsideration of the costs order in the present instance. It might
be added that, in my
view, a reasonable time has now elapsed for such
an application. It may also be completely impractical to allow
applications for
reconsideration, on the strength of
Estate
Garlick
, whenever a full-blown argument
on costs has not materialised. In any event, the arguments to be
advanced in the event of reconsideration
mimic the arguments advanced
in the application for leave to appeal, focusing on
Biowatch
and NEMA. For reasons that follow, even if an application for
reconsideration had been countenanced on the material presently
before the court, the outcome would remain the same.
The
application for leave to appeal
[11]
Section
17(1) of the Superior Courts Act
[10]
provides:
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under
consideration.
(b)
the decision sought on appeal does not
fall within the ambit of s 16(2)(a) [i.e the appeal must have a
practical result]; and
(c)
where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and prompt
resolution of the real issues between
the parties.’
[12]
Section 17(1)
(b)
establishes that an appeal may only be granted where the decision
sought on appeal does not fall within the ambit of s 16(2)
(a)
.
That section provides:
‘
(2)
(a)
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision
sought will have no practical effect or result, the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect
or result is to be determined
without reference to any consideration of costs.’
[13]
The
applicants have not made out any case for exceptional circumstances
in their notice of application for leave to appeal.
[11]
I accept, nonetheless, and notwithstanding their failure to argue the
point, that an unjustifiable departure from application of
the
Biowatch
principles, or failure to exercise a discretion as to costs with full
cognisance of s 32 of NEMA, would satisfy that requirement
and
warrant leave to appeal being granted.
[14]
In
my view, however, the facts of this matter are such that this is not
the case. The application was launched to interdict Shell’s
seismic survey. The review of decisions of the first and second
respondents, possibly engaging constitutional issues more directly,
was to be a separate matter and was never launched. Those respondents
participated in the proceedings only to add support to Shell’s
submissions regarding urgency and filed no papers in the matter. The
focus of the application was on Shell, and not, for example,
on the
exercise of constitutional rights against an organ of state.
[12]
While matters ancillary to genuine constitutional cases are covered
by
Biowatch
,
[13]
it cannot be said that the crux of the urgent application was
constitutional in nature. The matter involved nothing more than the
application of the facts, with little dispute on the papers,
[14]
to the well-established requirements for interim relief. Its essence
was not constitutional in nature. To illustrate the point,
it simply
cannot be the case that
Biowatch
applies
to every interim interdict application pending a review on the basis
that the constitutional right to just administrative
has been
invoked. The result is that even though it cannot be said that the
application was ‘frivolous’ or ‘vexatious’,
the
Biowatch
principle
could not operate in the applicants’ favour against any of the
respondents.
[15]
[15]
As
to the argument based on s 32(2) of NEMA, it is so that a court may
exercise a discretion in deciding not to award costs against
an
unsuccessful applicant in applicable matters concerned with the
protection of the environment. To do so, however, the court
should
believe that ‘the person or group of persons acted reasonably
…’ In this instance, as the judgment explains,
the
applicants’ submissions regarding the detrimental impact of the
seismic survey on the environment, and marine life in
particular,
were, at best, speculative. In complete contrast to the application
that followed in
Sustaining
the Wild Coast NPC and Others v Minister of Mineral Resources and
Energy and Others
,
[16]
there was a paucity of supporting material on the aspect of
‘reasonable apprehension of irreparable harm’.
[17]
The application was, in that sense, premature and launched with haste
in an unreasonable fashion with no prospects of success.
As a result,
and absent the application of the
Biowatch
principle,
the ordinary approach to costs must apply. The exercise of the
discretion in awarding costs was therefore based on the
correct facts
and legal principles and an appeal on costs has no reasonable
prospects of success. There is also no other compelling
reason why an
appeal on costs should be heard in this matter.
Order
[16]
The application for leave to appeal is
dismissed with costs.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:19
May 2022
Delivered:07
June 2022
Appearances:
3
rd
& 4
th
Applicant’s Counsel:
Adv D. Mahon
Chambers in Sandton
Instructed
by :
Cullinan & Associates
Cape Town
Email:Ricky@greencounsel.co.za
c/o
Huxtable Attorneys
26 New Street
Makhanda
Email:owen@huxattorneys.co.za
1
st
Respondent’s Counsel:
Adv A. Beyleveld SC
Makhanda
Instructed
by :
The State Attorney
First Respondent Attorney
Email:MicBotha@justice.gov.za
3
rd
-
5
th
Respondent’s Counsel:
Adv A. Friedman and Adv S Pudifin-Jones
Sandton
Instructed
by :
Shepstone Wylie Inc.
3
rd
–
5
th
Respondent’s Attorneys
Email:sampson@wylie.co.za
c/o
Nettelton Attorneys
118A High Street
Makhanda
Email:sam@netteltons.co.za
[1]
Biowatch
Trust v Registrar Genetic Resources and Others
2009
(6) SA 232
(CC).
[2]
National
Environmental Management Act, 1998 (Act 107 of 1998).
[3]
Estate
Garlick v Commissioner for Inland Revenue
1934
AD 499
(‘
Estate
Garlick
’)
at 502. Courts are entitled to base their judgment and to make
findings in relation to any matter flowing fairly from
the record,
the heads of argument or the oral argument itself without
forewarning:
Thompson
v SABC
[2000] ZASCA 76
;
2001 (3) SA 746
(SCA) at 749H-I.
[4]
Estate
Garlick
ibid
at 503, 504.
[5]
Estate
Garlick
ibid
at 505.
[6]
Estate
Garlick
ibid
at 501.
[7]
Estate
Garlick
ibid
at 505, 506.
[8]
The
correspondence dated 14 December 2021 indicated as follows: ‘We
would be grateful if you could inform us as soon as
possible whether
or not you intend to vary the judgment
mero
motu
.
If you are not so inclined, we shall immediately make an application
in terms of Rule 42 … this letter should, however,
not be
construed as a waiver or acquiescence of our clients’ rights
of appeal and / or any of their other rights, which
remain
reserved.’ Other than the application for leave to appeal, no
further application for variation or reconsideration
followed.
[9]
Union
Government v Gass
1959
(4) SA 401
at 412D-H.
[10]
Act
10 of 2013.
[11]
See
IGS
Consulting Engineers & Another v Transnet Soc Limited
[2022]
ZASCA 63
para 27.
[12]
Mkhatshwa
v Mkhatshwa
2021
(5) SA 447
(CC) paras 16, 18. Also see
Minister
of Safety and Security and Another v Schuster and Another
[2018] ZASCA 112
(‘
Schuster
’)
paras 25, 26.
[13]
See
Lawyers
for Human Rights v Minister in the Presidency and Others
2017 (1) SA 645
(CC) para 16.
[14]
Para
16 of the judgment.
[15]
See
Schuster
supra
fn 11 para 26.
[16]
Bloem J in
Sustaining
the Wild Coast NPC and Others v Minister of Mineral Resources and
Energy and Others
2022
(2) SA 585
(ECG); [2021] ZAECGHC 118 para 65.
[17]
Paras
34 and 35 of the judgment.