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[2021] ZAGPPHC 45
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Summer Season Trading 63 (Pty) Ltd v City of Tshwane metropolitan Municipality and Others (22557/2015) [2021] ZAGPPHC 45 (1 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
Case
No: 22557/2015
In
the matter between:
SUMMER
SEASON TRADING 63 (PTY) LTD
APPLICANT
and
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
FIRST
RESPONDENT
THE
ILLEGAL OCCUPIERS OF THE REMAINING
EXTENT
OF PORTION 34 OF THE FARM
KAMEELZYNKRAAL
547 JR
SECOND RESPONDENT
THE
MEC FOR THE DEPARTMENT OF LOCAL
GOVERNMENT
AND HOUSING, GAUTENG
THIRD RESPONDENT
THE
MINISTER OF HUMAN SETTLEMENTS
FOURTH RESPONDENT
THE
MINISTER OF WATER AND ENVIRONMENTAL
AFFAIRS
FIFTH RESPONDENT
THE
PREMIER OF THE GAUTENG PROVINCE
SIXTH
RESPONDENT
JUDGMENT
BASSON
J
INTRODUCTION
[1]
This is an application by Summer Season
Trading 63 (Pty) Ltd (“Summer Season”) in terms of Rule
28 of the Uniform Rules
of Court to amend its Notice of Motion dated
26 March 2015 in the main review application under case no:
22557/2015 by replacing
it with the Amended Notice of Motion dated 16
November 2018.
[2]
When the first respondent (“the City
of Tshwane”) objected to the proposed amendment, Summer Season
made application
for leave to amend the (original) Notice of Motion
in an application dated 7 December 2018. The only parties
before court
and who have an interest in this application are Summer
Season and the City of Tshwane.
[3]
In the original (or existing) Notice of
Motion, Summer Season seeks to review and set aside the expropriation
of the City of Tshwane
by Notice of Expropriation dated 11 March 2015
(“the first expropriation notice”). In the proposed
Amended Notion
of Motion, Summer Season seeks to amend the (original)
Notice of Motion to provide (
inter alia)
for
an order reviewing and setting aside the withdrawal of the first
notice of expropriation (dated 11 March 2015) and for an order
that
the second expropriation notice dated 26 October 2018 be reviewed and
set aside (“the second notice of expropriation”).
In
essence, the proposed amendment seeks to introduce a review of an
expropriation notice that was only issued
subsequent
to Summer Season having launching the present review application in
terms of the Notice of Motion dated 26 March 2015. The
relevant
issue in this application is whether this court should allow Summer
Season to introduce a further or new cause of action
to the present
review application to provide for a review of the second
expropriation notice.
BACKGROUND
The
first notice of expropriation – 11 March 2015
[4]
Summer Season is the registered owner of
the Remaining Extent of Portion 34 of the farm Kameelzynkraal
situated towards the east
of Pretoria (“the property”).
The City of Tshwane expropriated the property in a Notice of
Expropriation dated
11 March 2015 (“the first expropriation
notice”). As already pointed out, Summer Season brought
this application
to review and set aside this Notice of Expropriation
(attached to the original Notice of Motion).
[5]
The property is occupied by a large number
of illegal occupiers in an informal settlement that is known as
Kanana Village. Various
court actions preceded this
application. It is not necessary to refer to those proceedings
in detail except to mention that
an eviction order was granted at
some stage against the Kanana Village and its occupiers with
extensive orders against the City
of Tshwane regarding the relocation
of the occupiers. The City of Tshwane and the occupiers brought
unsuccessful applications
for leave to appeal against the eviction
order in this court to the Supreme Court of Appeal and the
Constitutional Court. The
Constitutional Court dismissed the
application for leave to appeal against the eviction order on 14 May
2014. The matter
then served before Muller AJ on 28 November
2014. The court ordered the City of Tshwane to file its report
by 12 January
2015. Its response was that, although the
property is not suitable for permanent development, it is sufficient
to temporarily
accommodate the occupiers and then stated that it
would expropriate the property for those purposes. It did so in
the Notice
of Expropriation dated 11 March 2015 which forms the
subject matter of the pending review application (“the first
expropriation
notice”).
The
second notice of expropriation
[6]
On
29 October 2018 Summer Season’s attorneys received two
documents from the City of Tshwane. The first document informed
Summer Season that the City of Tshwane was withdrawing the (first)
notice of expropriation. In the second document, Summer
Season
was informed that the City of Tshwane again expropriated the property
with immediate effect. In paragraph 3 of the
Notice of
Expropriation dated 26 October 2018, the basis of the expropriation
was stated to be “Public purpose … to
settle the Kanana
village on the property described above”. The first
notice of expropriation was withdrawn in terms
of section 23 of the
Expropriation Act
[1]
pursuant to a resolution by the Council of the City of Tshwane on 24
October 2018 to expropriate the property.
[7]
In the papers Summer Season refers to this
withdrawal as a “purported withdrawal” arguing that the
(“purported”)
notice to withdraw and the second
expropriation notice were legally ineffective. It contends, in
the alternative, that these
alleged decisions reflected in the two
documents are to be reviewed and set aside. From the
supplementary affidavit before
court it appears that Summer Season
will argue that the City of Tshwane could not withdraw the first
expropriation notice without
its written consent and that it had
previously requested the City of Tshwane to withdraw the second
expropriation notice.
[8]
This issue is, of course, an issue that
will have to be decided as part and parcel of the review (if the
amendment is granted).
These contentions are, however, relevant
in these proceedings in as far as they impact this court’s
discretion whether
or not to grant the amendment. I will return
to this issue hereinbelow.
[9]
The crux of the opposition to the proposed
amendment of the Notice of Motion is the City of Tshwane’s
contention that the
second notice of withdrawal constitutes a new
decision separately reviewable in terms of Rule 53 of the Uniform
Rules. Summer
Season disagrees and submits that this further
attempt to expropriate the property is but a continuation of the same
conduct that
forms the subject matter of the pending review.
[10]
The City of Tshwane remains adamant that
it was entitled to withdraw the previous expropriation and, in the
same notice, again expropriate
the applicant’s property for a
second time. It is of the view that Summer Season’s
attempt to now attempt to
expand the initial review application
(which was confined to the March 2015 decision to expropriate) to
include the two subsequent
decisions by the City of Tshwane by way of
amending its Notice of Motion and filing a supplementary affidavit,
is procedurally
improper.
The
first respondent’s objection to the proposed amendment
[11]
The objections raised (and expanded upon
in the heads of argument filed on behalf of the City of Tshwane) are
the following:
(i)
The first objection is that it is impermissible
for Summer Season to seek to introduce a new cause of action founded
on decisions
taken in October 2018 when the founding affidavit
supported a cause of action founded on the expropriation of March
2015.
(ii)
The second objection is that the withdrawal
decision contained in the document dated 23 October 2018 and signed
on 26 October 2018
is a new decision separately reviewable in terms
of Rule 53 of the Uniform Rules of Court.
(iii)
The expropriation decision, contained in a
document dated 23 October 2018 and signed on 26 October 2018, is a
new decision separately
reviewable in terms of Rule 53 of the Uniform
Rules of Court.
(iv)
The fourth objection is that the proposed
amendment is legally incompetent and prejudicial to the first
respondent.
[12]
Summer Season submits that it is in the
interests of justice for this court to grant the amendment and that
both purported expropriations
can and should be dealt with in the
same review application. Summer Season, with reference to a
legal opinion that served
before the Council when the resolution was
taken which led to the second expropriation notice, points out that
Council was advised
at that stage that the first expropriation was
unlawful and not in accordance with the applicable legislation (for
reasons not
relevant at this stage). Summer Season submits
that, despite this legal advice the City of Tshwane made the same
mistakes
when it again expropriated the applicant’s property
after the withdrawal of the 11 March 2015 Notice of Expropriation.
[13]
Summer Season further contends that this
is why substantially the same grounds of review therefore apply in
respect of both expropriations.
[14]
It is important to point out that the
record of proceedings in respect of
both
expropriations have now been filed with the court. Summer
Season submits that it would not serve any purpose, and it would
not
be in the interest of any of the parties, to compel it to bring a new
(separate) review application in respect of the second
expropriation,
simply repeating what is already before the court in the present
application: It is, according to Summer Season,
not in the interests
of justice to have two hearings into essentially the same subject
matter.
PRINCIPLES
Although
Mr. Mokhare (for the City of Tshwane) did not take issue with Mr.
Havenga’s (for Summer Season) exposition of the
law and the
general approach of our court’s towards amendments, I will
nonetheless briefly set out what these principles
are and why I have
decided to exercise my discretion to allow the amendment to the
Notice of Motion.
[15]
The
general approach to amendments is set out in
Moolman
v Estate Moolman:
[2]
“
[T]he
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or
unless such
amendment would cause an injustice to the other side which cannot be
compensated by costs, or in other words unless
the parties cannot be
put back for the purposes of justice in the same position as they
were when the pleading which is sought
to be amended was filed”.
[16]
It
is accepted that the primary object of allowing an amendment is to
“obtain a proper ventilation of the dispute between
the
parties, to determine the real issues between them, so that justice
may be done”
[3]
.
Where an amendment will facilitate the proper ventilation of
the dispute between the parties, a court will be inclined to
grant
same.
[4]
[17]
The general approach therefore seems to be
that a court will be inclined to allow material amendments limited
only by considerations
of prejudice or injustice to the opponent.
[18]
The
disputed issue in this application is whether an amendment amounting
to the introduction of a
new
cause of action
should be allowed. Although it is accepted that a court should
always be mindful of the considerations set out hereinabove,
allowing
an amendment in such circumstances, is not unusual. In
Bankorp
Ltd v Amderson-Morshead,
[5]
the court allowed an amendment even in circumstances where a new
cause of action was introduced where there was no valid cause
of
action in the summons. A similar approach was followed in
Barclays
Bank International Ltd v African Diamond Exporters (Pty) Ltd (1).
[6]
The court in the latter case granted leave to amend the summons to
complete a cause of action where no cause of action existed
at the
time when the summons was issued and even where it had the effect of
constituting a substantially new summons (as from the
date when the
summons was issued). In
Fiat
SA (Pty) Ltd v Bill Troskie Motors,
[7]
the court granted the amendment,
inter
alia
,
on the basis that it would be
convenient
to do so even though the amendment resulted in fresh causes of
actions to be incorporated:
“
I
do not intend to burden this judgment with the principles which
should be considered in deciding whether to grant or refuse an
application for leave to amend a pleading. These principles have
been fully dealt with in
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd
and
Another
1967
(3) SA 632 (D)
.
It
is true that applicant has delayed for a considerable time in
bringing this application. Although there is no explanation for
this delay, it does not appear to me that the applicant is mala
fide, or that the application has been brought to delay the
proceedings. It also does not appear to me that the respondent would
be prejudiced by the proposed amendments. (Cf Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering
(Pty) Ltd and Another (supra at 642).) I am therefore
of the
view that the application should not be refused on the grounds set
out in (a) and (c) above.
In
OK
Motors v Van Niekerk
1961
(3) SA 149
(T)
at
152 HILL J stated:
"It
is for reasons of convenience that fresh causes of action may be
incorporated in original proceedings even if such fresh causes
of action have arisen after the issue of summons. (See Pullen v
Pullen
1928 WLD 133.)
"
POTGIETER
J, as he then was, approved of these remarks in
Mac-Donald,
Forman & Co v Van Aswegen
1963
(2) SA 150 (O)
at
154. A perusal of the new claims reveals that these claims also
relate to the trading relationship which gave rise to the original
claims. This, in itself, is in my view a strong indication that
it would be convenient to incorporate the fresh causes of
action in
the original proceedings. There is in my judgment no merit in the
opposition based on ground
(d)
.”
[19]
Where
it is practical to do so, a court may also be persuaded to grant an
amendment. The court in
Philotex (Pty)
Ltd and Others v Snyman and Others; Textilaties (Pty) Ltd and Others
v Snyman and Others
held:
[8]
“
On
the other hand, practical considerations have in the past dictated
that causes of action which arose after issue of summons be
joined to
the existing ones in the same action (see
OK
Motors v Van Niekerk (supra)
;
Pullen
v Pullen
1928
WLD 133
;
Ritch
v Bhyat (supra
at
592);
Van
Deventer v Van Deventer and Another
1962
(3) SA 969
(N)
;
and see also
Du
Toit v Vermeulen
1972
(3) SA 848 (A)
at
856G-857A).
This
is not the
ex post facto
introduction of a fresh
cause of action to an action between parties who are properly before
Court, because there is no
objection to the
locus
standi
of some plaintiffs. The effect of this amendment is
that it seeks to introduce parties to an existing action with causes
of
action which arose after the issue of summons.”
[20]
Ultimately,
however, the overarching consideration will be whether or not it is
in the interests of justice to allow the amendment.
In the
decision of
Affordable
Medicines Trust and Others v Minister of Health and Others,
[9]
the
Constitutional Court echoed the well-known principles developed over
many years but added that the question ultimately should
always be
“what do the interest of justice demand?”:
“
[9]
The principles governing the granting or refusal of an amendment have
been set out in a number of cases. There is a useful collection
of
these cases and the governing principles in
Commercial
Union Assurance Co Ltd v Waymark NO
.
The practical rule that emerges from these cases is that amendments
will always be allowed unless the amendment is
mala
fide
(made in
bad faith) or unless the amendment will cause an injustice to the
other side which cannot be cured by an appropriate
order for costs,
or 'unless the parties cannot be put back for the purposes of
justice in the same position as they were when
the pleading which it
is sought to amend was filed'. These principles apply equally to a
notice of motion. The question in each
case, therefore, is, what do
the interests of justice demand?”
EVALUATION
[21]
Although the arguments on behalf of the
City of Tshwane ultimately were more succinct, I nonetheless find it
necessary to briefly
deal with the objections as they are set out in
the heads of argument filed on behalf of the City of Tshwane.
The
first objection
[22]
The first objection is that it is
impermissible for Summer Season to seek to introduce a new cause of
action founded on the decisions
taken in October 2018 “when the
founding affidavit support the cause of action founded in the
expropriation of March 2015”.
[23]
The
City of Tshwane submits that the circumstances in this case are not
exceptional so as to warrant such an intrusive amendment.
It is
further submitted that the amendment sought by Summer Season is not
in the interests of justice and will cause prejudice
or an injustice
to the City of Tshwane if the amendment is allowed.
[10]
It is also submitted that the relief now sought to be introduced by
Summer Season is quite evidently substantively different in
nature.
[24]
There
is no merit in either of these submissions. At the outset, the
mere fact that a new cause of action is introduced, does
not in
itself, prevent a court from granting an amendment. It may, as
is evident from the case law, be convenient or practical
to
incorporate fresh causes of action in original proceedings.
[11]
Only where such an amendment introduces a new cause of action
that would cause prejudice to the other party will the court
refuse
such an amendment. There is, however, no such prejudice in the
present case since the City of Tshwane has not filed
any answering
affidavits yet and will still have the opportunity to oppose the
review application on its merits in respect of both
expropriations.
Also, the record in respect of the second expropriation notice
has been filed and is before court.
[25]
An important consideration in favour of
granting the amendment is the fact that a refusal will only result in
Summer Season bringing
a second review application involving the same
parties and pertaining to the same issues before court in the present
review application.
Furthermore, if a court ultimately finds
that there is merit in the submission that the City of Tshwane could
not competently
withdraw the first expropriation notice and issue the
second one, it is not only practical but also, in my view, in the
interests
of justice to allow Summer Season to introduce a further or
new cause of action; namely an application to review and set aside
the second expropriation notice. The events which gave rise to
the second expropriation notice are closely tied up with the
events
that gave rise to the first expropriation notice and the events that
gave rise to the withdrawal of the first expropriation
notice and the
issuing of the second expropriation notice. If Summer Season is
compelled to launch a further review application
pertaining to the
second notice of expropriation, this court may well be called upon
further down the line to consider an application
to consolidate the
two review applications. Not only is this impractical and a
waste of public resources (in the case of
the City of Tshwane), it is
in turn not in the interest of justice.
[26]
In
as far as it is required that exceptional or special circumstances
must exist before an amendment introducing a cause of action
not
existing at the time when proceedings were initiated would be
allowed, I am of the view that such special circumstances have
been
established by Summer Season.
[12]
[27]
I
am also in agreement with the sentiments expressed by Harms in his
section on
Civil
Procedure: Superior Courts
[13]
where he states, with reference to
Du
Toit v Vermeulen,
[14]
that:
“
The
requirement that a cause of action has to exist at the time of the
initiation of the action is something that may have to be
reconsidered. A strict approach may be too technical”.
[28]
In conclusion therefore: Apart from the
fact that there are, in my view, exceptional circumstances present,
it is further in the
interests of justice and the speedy resolution
of the dispute between the parties that the amendment introducing the
new cause
of action based on the new decisions, be allowed to be
adjudicated in the same proceedings. It cannot be ignored that
both
expropriations were in respect of the same property and taken
for similar reasons and based on the same facts. Summer
Season’s
case for the review and setting aside of both
expropriations will therefore essentially be the same grounds of
review and relying
on the same background facts.
The
second objection
[29]
The second objection is that the
“withdrawal of the decision contained in the document dated 23
October 2018 and signed on
26 October 2018 is a new decision
separately reviewable in terms of Rule 53 of the Uniform Rules of
Court”.
[30]
In this regard it is submitted that the
decisions by the City of Tshwane to withdraw the 10 March 2015
expropriation notice constitutes
a new and separate decision from the
decision to expropriate on 10 March 2015. Similarly, the
decision to adopt the Council
resolution to expropriate on 24 October
2018 is a new and separate decision from both the decisions related
to 10 March 2015. It
is argued that the decision followed
different processes and therefore introduced different causes of
action for Summer Season.
It follows, according to the City of
Tshwane, that these decisions, if reviewable, must be reviewed
separately. Summer
Season’s approach to review
proceedings is thus improper in that it is improper to circumvent the
rules of court by attempting
to bring one review application for
separate decisions. The City of Tshwane further argues that
Summer Season ought to have
instituted Rule 53 proceedings in respect
of each separate decision. By following this procedure, it
would have had to request
the record for the 2018 decisions in order
to adequately interrogate the decisions before bringing the review
applications. The
extended purported review application is
therefore premature in respect of the two 2018 decisions.
[31]
I have already largely dealt with these
arguments where I deal with the first objection. There is no
merit in these submissions.
Ultimately, this court has to
decide what do the interests of justice demand?
[32]
The City of Tshwane also contends that the
initial review application has indeed become moot and academic as a
result of the concession
that the first expropriation offended the
provisions of the Expropriation Act. I do not agree. As
already pointed out,
the issue whether or not the City of Tshwane was
entitled to withdraw the notice of expropriate remains alive and
Summer Season
is entitled to a determination of this issue.
[33]
Lastly, it is submitted on behalf of the
City of Tshwane that Summer Season has acted
mala
fide
in the manner in which it seeks to bring
these amendment proceedings which will then in future purport to be
review proceedings.
The City of Tshwane contends that it cannot
be correct to accept the approach adopted by Summer Season to
cross-reference
allegations founded on the initial expropriation for
purposes of making out grounds of review in respect of wholly new
decisions.
For this further reason Summer Season should not be
permitted to amend its pleadings.
[34]
I cannot find on the papers that Summer
Season is
mala fide
.
It was confronted with further developments in a dispute that
is rooted in the same property, between the same parties and
which
essentially have the same effect – namely expropriation. It
is, in principle, entitled to review any further
decisions taken
subsequent to the decision that forms the substratum of the review
application already before court. The
only question is whether
Summer Season should be allowed by way of an amendment of the Notice
of Motion to introduce a further
review pertaining to the subsequent
decisions in the existing review application.
The
third objection
[35]
The third objection is that the
“expropriation decision, contained in a document dated 23
October 2018 and signed on 26 October
2018, is a new decision
separately reviewable in terms of Rule 53 of the Rules of Court”.
I have already dealt with
this issue. There is no merit in this
objection.
The
fourth objection
[36]
The fourth objection is that the proposed
amendment is allegedly legally incompetent and prejudicial to the
first respondent. There
is no merit in this objection for the
reasons already referred to.
COSTS
[37]
In respect of costs, Summer Season submits
that, although a party seeking an amendment is seeking an indulgence,
the City of Tshwane
unreasonably objected to the proposed amendment
and should therefore be ordered to pay the costs of the application
for leave to
amend. The applicant further submits that the
opposition to this application for amendment is unreasonable and only
had the
effect of again delaying the finalisation of this matter for
another two years while Summer Season continues to suffer prejudice
as a result of the unlawful occupation of its property and the
failure of the City of Tshwane to comply with the court order.
[38]
It is an accepted principle that the issue
of costs falls within the discretion of the court. I have
considered the submissions
advance in this regard. Although
costs should follow the result, I am not persuaded that a punitive
costs order is warranted.
It is therefore ordered that the City
of Tshwane pay the costs of this application on a scale as between
party and party.
Such cost to include the costs occasioned by
the employment of senior counsel.
ORDER
[39]
The following order is made:
1.
The application to amend is granted in terms of
prayers 1, 2 and 3 of the amended Notice of Motion.
2.
The applicant, Summer Season Trading 63 (Pty)
Ltd, is ordered to file its supplementary affidavit within 10 days of
the date of
this order.
3.
The City of Tshwane Metropolitan Municipality is
ordered to pay the costs of this application on the scale as between
party and
party. Such costs to include the costs consequent upon the
employment of senior counsel.
AC
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 1 February 2021.
Case
number:
22557/2015
Matter
heard on:
26 January 2021
APPEARANCES
For
the Applicant:
ADV HS HAVENGA SC
Instructed
by:
PEET GROBBELAAR ATTORNEYS
For
the Respondent:
ADV
W R MOKHARE SC
ADV M P
MOROPA
Instructed
by:
DIALE
MOGASHOA ATTORNEYS
[1]
63 of 1975.
[2]
1927 CPD 27
at 29.
[3]
Viljoen v Baijnath
1974 (2) SA 52
(N) at 53H.
[4]
Commercial Union
Assurance Co Ltd v Waymark NO
1995 (2) SA 73
(TK) at 77 F-H.
[5]
1997(1) SA 251 (W).
[6]
1976 (1) SA 93
(W).
[7]
1985 (1) SA 355
(O) at 357 G-H.
[8]
1994
(2) SA 710
(T) at 716G-I.
[9]
2006
(3) SA 247 (CC).
[10]
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd intervening)
1994 (2) SA 363
(C) at 369G.
[11]
See
OK Motors v Van
Niekerk
1961 (3) SA
149
(T) at 152C: “
It
is for reasons of convenience that fresh causes of action may be
incorporated in original proceedings even if such fresh causes
of
action have arisen after the issue of summons. (See
Pullen
v Pullen,
1928 W.L.D. 133).
” See also
MacDonald Forman &
Co. v Van Aswegen
1963
(2) SA 150
(O) at 153H – 154A and
Fiat
SA (Pty) Ltd v Bill Troskie Motors
1985 (1) SA 355
(O) at 357 G-H.
[12]
See
Mynhardt v
Mynhardt
1986 (1) SA
456
(T); Barclays
Bank
International Limited v African Diamond Exporters (Pty) Ltd
1976 (1) SA 93
(W);
Bankorp
Limited v Anderson-Morshead
1997 (1) SA 251
(W) and
Solomon
v Spur Cool Corporation Limited
[2002] 2 All SA 359
(C) at 368.
[13]
Volume 4 (third edition replacement) of LAWSA.
[14]
1972 (3) SA 848A
at 856 – 857.