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2021
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[2021] ZAGPPHC 262
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Trustees For The Time Being of The Global Environmental Trust and Others v Mfolozi Community Environmental Justice Organisation and Others (82865/2018) [2021] ZAGPPHC 262 (28 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number
: 82865/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
In
re: Intervention application
THE TRUSTEES FOR THE
TIME BEING OF
THE
GLOBAL ENVIRONMENTAL
TRUST
First Applicant
MINING AFFECTED
COMMUNITIES
UNITED
IN ACTION
Second
Applicant
SOUTHERN AFRICA HUMAN
RIGHTS
DEFENDERS
NETWORK
Third Applicant
ACTIONAID
SOUTH
AFRICA
Fourth Applicant
and
MFOLOZI COMMUNITY
ENVIRONMENTAL
JUSTICE
ORGANISATION
First Respondent
SABELO
DUMISANI DLADLA
Second
Respondent
MINISTER
OF MINERALS AND ENERGY
Third Respondent
REGIONAL
MANAGER, DEPARTMENT OF
MINERAL
RESOURCES, KWAZULU-NATAL
Fourth
Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF
MINERAL
RESOURCES
Fifth Respondent
TENDELE
COAL MINING (PTY) LTD
Sixth
Respondent
MINISTER
OF ENVIRONMENTAL AFFAIRS
Seventh
Respondent
MTUBATUBA
MUNICIPALITY
Eighth
Respondent
HLABISA
MUNICIPALITY
Ninth
Respondent
INGONYAMA
TRUST
Tenth
Respondent
EZEMVELO
KZN WILDLIFE
Eleventh
Respondent
AMAFA-AKWAZULU-NATAL
HERITAGE
COUNCIL
Twelfth
Respondent
MPUKUNYONI
TRADITIONAL COUNCIL/
MPUKUNYONI
TRADITIONAL AUTHORITY
Thirteenth
Respondent
MPUKUNYONI
COMMUNITY MININING FORUM
Fourteenth
Respondent
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION (AMCU)
Fifteenth
Respondent
NATIONAL
UNION OF MINE WORKERS (NUM)
Sixteenth
Respondent
APPLICANT
IN THE WITHDRAWAL
APPLICATION
Seventeenth
Respondent
In
re: Withdrawal application
MFOLOZI COMMUNITY
ENVIRONMENTAL
JUSTICE
ORGANISATION
Applicant
and
YOUENS
ATTORNEYS
First Respondent
MINISTER
OF MINERALS AND ENERGY
Second
Respondent
REGIONAL
MANAGER, DEPARTMENT
OF
MINERAL
RESOURCES, KWAZULU- NATAL
Third
Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF
MINERAL
RESOURCES
Fourth
Respondent
TENDELE
COAL MINING (PTY) LTD
Fifth
Respondent
MINISTER
OF ENVIRONMENTAL AFFAIRS
Sixth
Respondent
MTUBATUBA
MUNICIPALITY
Seventh
Respondent
HLABISA
MUNICIPALITY
Eighth
Respondent
INGONYAMA
TRUST
Ninth
Respondent
EZEMVELO
KZN WILDLIFE
Tenth
Respondent
AMAFA
aKWAZULU-NATAL HERITAGE
COUNCIL
Eleventh
Respondent
MPUKUNYONI
TRADITIONAL COUNCIL/
MPUKUNYONI
TRADITIONAL AUTHORITY
Twelfth
Respondent
MPUKUNYONI
COMMUNITY MINING
FORUM
Thirteenth
Respondent
ASSOCIATION
OF
MINEWORKERS
AND
CONSTRUCTION UNION (AMCU)
Fourteenth
Respondent
NATIONAL
UNION OF MINE WORKERS (NUM)
Fifteenth
Respondent
In
Re: Review Application
MFOLOZI
COMMUNITY ENVIRONMENTAL
JUSTICE
ORGANISATION
First
Applicant
SABELO
DUMISANE DLADLA
Second
Applicant
And
THE
MINISTER OF MINERALS AND ENERGY
First
Respondent
REGIONAL MANAGER,
DEPARTMENT OF MINERAL
RESOURCES,
KWAZULU-NATAL
Second
Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF MINERAL
RESOURCES
Third
Respondent
TENDELE
COAL MINING (PTY) LTD
Fourth
Respondent
MINISTER
OF ENVIRONMENTAL AFFAIRS
Fifth
Respondent
MTUBATUBA
MUNICIPALITY
Sixth
Respondent
HLABISA
MUNICIPALITY
Seventh
Respondent
INGONYAMA
TRUST
Eighth
Respondent
EZEMVELO
KZN WILDLIFE
Ninth Respondent
AMAFA
aKWAZULU-NATAL HERITAGE COUNCIL
Tenth
Respondent
JUDGMENT
KUBUSHI
J,
Delivered:
This judgment is handed down
electronically by circulation to the Parties and/or their legal
representatives by email and by uploading
it to Caselines. The date
for hand-down is deemed to be 28 April 2021.
INTRODUCTION
[1]
Before me are two interlocutory applications, namely, the
intervention application
and the withdrawal application. The
genesis of the two interlocutory applications is the review
application that was launched
by Mfolozi Community Environmental
Justice Organisation (“MCEJO”). MCEJO is the first
respondent in the intervention
application and the applicant in the
withdrawal application.
[2]
In the said review application, MCEJO seeks an order firstly, to
review and set aside
the decision of the first respondent in the
review application, the Minister of Minerals and Energy (“the
Minister”),
dated 15 June 2018 dismissing MCEJO’s appeal
against the decision of the third respondent in the review
application, the
Acting Director-General, Department of Minerals and
Energy (“the Director-General”) dated 31 May 2016, in
which the
Director-General granted a mining right to the fourth
respondent in the review application, Tendele Coal Mining (Pty) Ltd
(“Tendele”),
over part of the Remainder of Reserve 3
(Somkhele), 15822 situated in the Hlabisa District and measuring 21
233.0525 hectares in
extent (“the mining area”), and,
secondly, to review and set aside the decision by the
Director-General, in the first
place, to grant the said mining right
to Tendele, as well as an order in terms of other ancillary orders.
The impugned mining right
authorises Tendele to mine coal over the
mining area for a period of 30 years commencing from 26 October 2016.
[3]
The review application was initially launched by two applicants,
namely, MCEJO as
the first applicant and Sabelo Dumisani Dladla (“Mr
Dladla”) as the second applicant. Mr Dladla has since withdrawn
his application and only MCEJO is proceeding with the review
application. Although a number of parties are cited as respondents
in
the review application, only Tendele opposed the said review
application.
[4]
The review application was set down for hearing for two (2) days on
18 and 19 March
2021. But, before it could be heard, two
interlocutory applications were filed, namely, the Rule 7 application
filed by Tendele
questioning the authority of MCEJO’s attorneys
of record, Youens attorneys (“Youens”), to act on behalf
of MCEJO
in the review application; and the withdrawal application
filed by MCEJO in which it sought a declarator terminating Youens’
mandate and an order withdrawing the review application.
[5]
The parties in the review application requested that the matter be
case managed before
the hearing of the review application, to provide
direction regarding the further conduct of the review application as
against
the two interlocutory applications, that is, the Rule 7
application and the withdrawal application. The case management
meeting
was held on 10 March 2021.
[6]
During the case management meeting Tendele abandoned and/or withdrew
the Rule 7 application
and tendered costs to be reserved pending
finalisation of the review application. Tendele, also, conceded the
merits of the review
application and wanted to argue for a just and
equitable remedy when the review application is heard. An order was,
also, made
for the withdrawal application to be heard on 18 March
2021 before the hearing of the review application. Consequently,
the
review application set down for 18 to 19 March 2021 was to stand
down pending the decision in the withdrawal application. A Directive
to that effect was issued on 10 March 2021.
[7]
On 12 March 2021 a further interlocutory application, an intervention
application,
was filed by four applicants in which they sought an
order granting them leave to intervene in the pending review
application as
second, third, fourth and fifth applicants. I shall,
for convenience, refer to them collectively as the applicants in the
intervention
application. Although a number of respondents were cited
in the intervention application, only MCEJO, as first respondent in
the
intervention application, is opposing the intervention
application.
[8]
Therefore, on 18 March 2021 when the matter appeared in court two
interlocutory applications,
the intervening application and the
withdrawal application, served before me. The parties were not agreed
as to how to proceed
with the applications. Ms de Vos, who appeared
with Ms Ferreira, on behalf of Youens, the first respondent in the
withdrawal application
as well as the applicants in the intervening
application, suggested that the intervening application be heard
first. Whereas Mr
Tshikila, who appeared with Mr Bobison-Opoku, on
behalf of MCEJO as applicant in the withdrawal application and as
first respondent
in the intervening application, suggested that
prayer 1 of the withdrawal application be adjudicated first.
[9]
Tendele had not opposed the intervention application and had opposed
the withdrawal
application merely as to the cost order, which prayer
for costs was subsequently abandoned by Mr Tshikila, on behalf of
Tendele.
Consequently, Mr Lazarus, appearing with Mr Salakozana for
Tendele, stated that Tendele will abide the decision of the court in
the withdrawal application.
[10]
After argument I ruled that the intervention application be heard
first before the withdrawal
application.
THE
ISSUE TO BE DETERMINED
[11]
The issue to be determined is whether the intervention application
and the withdrawal application
should be granted. I deal hereunder
with each applications, in turn.
Re:
The Intervention Application
[12]
The applicants in the intervention application approached court on an
urgent basis. MCEJO in
opposing the intervention application seeks to
have the application struck from the roll on the ground that it is
not urgent.
[13]
On the substantive issues the applicants argue that the wider
considerations of convenience favour
the intervention. The contention
is that, given the fact that firstly, the merits, with which they
make common cause, have already
been dealt with extensively in the
papers filed of record; secondly, that the matter is ripe for hearing
and, lastly, that Tendele
has now conceded the invalidity and
unlawfulness of the impugned mining right, considerations of equity
and convenience warrant
intervention. They submit further that their
intervention will not require the filing of additional papers or
delay the hearing
of the review application and that there is, as
such, no real prejudice to the respondents.
[14]
MCEJO opposes this application on the basis that:
14.1
The application is vexatious, frivolous and constitutes an abuse of
court process, and no case has been made
at all for intervention
(even if one were to assume that the application is one for
intervention); and
14.2
The application for intervention is more of an application for
substitution having regard to the first respondent's
withdrawal
application.
[15]
The issues to be determined on this topic are firstly, whether the
intervention application is
urgent; secondly whether a case has been
made out for intervention; and lastly, if so, whether the
intervention application, in
the light of the withdrawal application,
is not more of an application for substitution. I deal hereunder with
the issues in turn.
Whether the
intervention application is urgent and if so whether such urgency is
not self-created
[16]
The applicants in the intervention application submit that the
intervention application is manifestly
urgent. Their contention
is that in the event the relief sought is not granted on an urgent
basis, they will not be able
to obtain adequate redress in due
course. This is so according to the applicants, because if the
pending withdrawal application
succeeds, there is no review
application.
[17]
In opposing the intervention application, MCEJO contends that the
intervention application is
not urgent and that if it was found that
the application is urgent, the court should find that the urgency is
self-created and
as a result the intervention application should not
be heard but be struck off from the court roll.
[18]
In
Mogalakwena
Municipality v Provincial Executive Council, Limpopo and Others
,
[1]
the court explained that the primary investigation in determining
urgency should be to determine whether the applicant will be
afforded
substantial redress at a hearing in due course. It is only if an
applicant cannot establish prejudice in this sense that
the
application cannot be urgent.
[19]
According to the applicants in the intervention application, they
launched the intervention application
because of the pending
withdrawal application. It is common cause that if the withdrawal
application is granted, there will be
no review application and the
applicants in the intervention application will have to start the
process afresh.
[20]
There appears to be no dispute that the urgency of the application,
as contended for by the applicants
in the intervention application,
was created by the filing of the withdrawal application. It is, also,
not in dispute that if the
withdrawal application is granted there
will be no review application to speak of. This according to the
applicants in the intervention
application will result in them not
being afforded substantial redress at a hearing in due course.
[21]
This contention is not specifically denied by MCEJO in its papers.
MCEJO’s proposition,
in response to this argument, is that the
applicants in the intervention application can be afforded a hearing
in due course because
they can always and should institute their own
review application to challenge the impugned decisions, instead of
"piggybacking"
on MCEJO’s review application,
especially one which the original applicants (MCEJO) no longer have
an interest in pursuing.
And that if this process is followed, there
will be no urgency.
[22]
Quintessentially, MCEJO’s argument means that it should be
allowed to withdraw the review
application and that if the applicants
in the intervention application are not satisfied with the impugned
decisions, they should
institute a fresh review application in order
to be afforded substantial redress. In that sense, MCEJO’s
argument is that
by instituting a fresh review application, the
applicants in the intervention application will be afforded a hearing
in due course
and there will be no urgency to hear their intervention
application now.
[23]
The argument by MJECO that the applicants should institute their own
application
against the impugned decisions is without merit. It is
not in the interest of justice that the applicants in the
intervention application
be refused to intervene in the review
proceedings only because they can in future launch their own review
application against the
impugned decisions.
[24]
The present review application has been instituted and is ripe for
hearing. A lot of work has
gone into it including the filing of
voluminous papers. There is, therefore, no logic in the contention
that the applicants in
the intervention application not make use of
the process that is already in place and should instead start a new
process afresh.
The applicants in the intervention application have,
also stated in the heads of argument that they do not intend to file
any further
documents but will argue the matter on the documents
already filed in order not to delay the proceedings.
[25]
In the light of Tendele having conceded the merits of the review
application, it makes perfect
sense that the applicants in the
intervention application would want to argue the matter on the papers
already filed without filing
any further documents. Of importance is
that there are other communities, as will appear more fully
hereunder, who stand to be
prejudiced should the pending withdrawal
application be allowed and the application for intervention not be
granted. To start the
review proceedings afresh would not be in the
interest of justice for those communities as the proceedings will be
protracted.
It, therefore, makes perfect sense that the applicants in
the intervention application would want to pursue the review
application
even when MCEJO no longer wants to proceed with it and
proceed on the papers already filed.
[26]
This, also, does away with MCEJO’s argument that the
proposition by the applicants in the
intervention application that
they will not be filing further documents in the review application,
renders the intervention application
a substitution application.
[27]
I am, also, of the view that the intervention application should be
heard as a matter of urgency
due to the fact that the issues involved
in the review application, are of great public interest impact. The
public interest is
manifest in that the rights and interests of some
of the members of the community of Somkhele and Fuleni, who it
appears are not
represented by MJECO, are at stake.
[28]
The deponent to the founding affidavit in the withdrawal application,
Medical Ntombiyenkosi Ndziba
(“Mr Ndziba”) who is also
the deponent in the answering affidavit in the intervention
application, alleges that the
review application was instituted on
behalf of the community of Somkhele and that he has, as such, been
authorised by the said
community to institute the review application.
The community of Somkhele has subsequently, according to Mr Ndziba,
given MCEJO,
through him, instructions to withdraw the review
application, hence the withdrawal application.
[29]
To the contrary, it is alleged that the review application was
launched on behalf of both the
Somkhele and the other communities who
are members of MCEJO as
per
the amended constitution on which
Mr Ndziba relies. The contention is that, Mr Ndziba, having been
authorised only by the community
of Somkhele, has not been duly
authorised to act on behalf of members of MCEJO, but represents a
splinter group of members of MCEJO
who have been suspended from the
organisation.
[30]
It is indeed so that according to the amended constitution of MJECO,
filed of record, the organisation
is not only constituted by
community members of Somkhele. In terms of the constitution, members
of MCEJO are based within the communities
of Somkhele and Fuleni
areas, as such, the communities in these areas constitutes the
membership of MCEJO. It is these communities
that ought to have
authorised Mr Ndziba to institute and subsequently withdraw the
review application.
[31]
On the version of Mr Ndziba, who is insistent that only the community
of Somkhele is represented
in these proceedings, it is clear that the
interest of some of the members of MCEJO, who on that version are not
represented, would
be at stake should the withdrawal application be
granted. Put differently, it is evident that the interests of some
members of
MCEJO, who it appears have not authorised Mr Ndziba to
withdraw the review application, are at stake in that should the
pending
withdrawal application be granted they will lose the rights
they sought to establish in the review application. It is, thus,
undeniable
that this matter is of great public importance impact,
necessitating that the intervention application be heard before the
withdrawal
application.
[32]
What is also of public interest is that the issues in the review
application must be finalised
in order to curb the prevailing
situation in the mining area. It is not in dispute that the none
finalisation of the issues in
the review application, is causing
turmoil in that area that might come to an end once these issues are
settled. Thus, the continued
existence of disputes in the area, is
not in the public interest and/or in the interest of justice.
[33]
Having found the matter urgent, it is MCEJO’s argument that I
should find such urgency
to be self-created. The applicants in the
intervention application contend that the urgency cannot be found to
be self-created
because they were advised of Tendele's concession of
the merits, its purported abandonment of the bulk of its impugned
mining right
and attitude to the pending withdrawal application by Ms
de Vos, during the course of 11 March 2021 and accordingly launched
this
application as soon as duly possible. The application was
launched on 12 March 2021.
[34]
It is trite that urgency will in all likelihood be considered as
"self-created" in
circumstances where the applicant chose
to not bring the application at the earliest opportunity —
particularly where the
applicant may have had prior knowledge which
would have justified acting earlier because when an applicant gains
knowledge of the
respondent's prejudicial behaviour, it is important
that the applicant take steps to launch their application as
expeditiously
as possible.
[2]
[35]
I am in agreement with the argument by the applicants in the
intervention application and the
reasons they provide for the
argument that the urgency in this application is not self-created. As
argued by the applicants, it
is actually MCEJO's withdrawal
application that has created the urgency in this application. As a
matter of logic, the withdrawal
application demands that it be heard
before the review application which was set down for hearing on 18
and 19 March 2021. MCEJO
in its papers confirms that it had known
since September 2020 that the review application was set down for 18
and 19 March 2021,
yet they waited until 8 February 2021 to launch
the withdrawal application without any prior notice to all the
parties, including
Youens. It is correct that a reasonable litigant,
in the position of MCEJO, would have alerted all the parties once
they instructed
legal representatives to bring this application.
[36]
Furthermore, when at the case management meeting of 10 March 2021 it
was ruled that the withdrawal
application be heard before the review
application it became paramount that the intervention application be
filed and determined
as a matter of urgency.
[37]
In addition, the evidence of the applicants in the intervention
application that
they were advised of Tendele's
concession of the merits, its purported abandonment of the bulk of
its impugned mining right and
MCEJO's attitude to the pending
withdrawal application, by Ms de Vos during the course of 10 and 11
March 2021, remains uncontested.
It was on the basis of such advice
that they launched this application on 12 March 2021, which was only
two days after such advice.
[38]
I am satisfied that the urgency in the intervention application is
not self-created and that
the applicants therein launched the
application as soon as they gained knowledge of MCEJO’s
prejudicial behaviour. The truncated
time lines MCEJO is complaining
about, are in the circumstances justified.
[3]
Whether
a case for intervention has been established
[39]
Except for the reason that the applicant should launch their own
review application, MCEJO does
not provide reasons why the applicants
in the intervention application should not be joined as applicants in
the review application.
The question, therefore, is whether the
applicants in the intervention application, themselves, have made a
case to be granted
leave to intervene in the review application.
[40]
The intervention of persons as parties to an existing action is
provided for in Uniform Rule
12. The rule stipulates that 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 a
defendant. The court
may upon such application make such order,
including any order as to costs, and give such directions as to
further procedure in
the action as to it may seem meet.
[41]
The position in regard to intervention was made clear by the
Constitutional Court in
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner & Others,
[4]
wherein the court opined as follows:
“
[10]
If the applicant shows that it has some right which is affected by
the order issued, permission to intervene
must be granted. For it is
a basic principle of our law that no order should be granted against
a party without affording such
party a predecision hearing. This is
so fundamental that an order is generally taken to be binding only on
parties to the litigation.
[11]
Once the applicant for intervention shows a direct and substantial
interest in the subject-matter
of the case, the court ought to grant
leave to intervene. In
Greyvenouw
CC
[5]
this principle was formulated in these terms:
“
In
addition, when, as in this matter, the applicants base their claim to
intervene on a direct and substantial interest in the subject-matter
of the dispute, the Court has no discretion: it must allow them to
intervene because it should not proceed in the absence of parties
having such legally recognised interests.” ”
[42]
Uniform Rule 10 (1) which provides for the joinder of parties,
stipulates that
the right to relief
of the persons proposing to join as plaintiffs [applicants] depends
upon the determination of substantially
the same question of law or
fact which, if separate actions were instituted, would arise on each
action, and provided that there
may be a joinder conditionally upon
the claim of any other plaintiff failing.
[43]
The court in
Shapiro
v South African Recording Rights Association Ltd (Galeta
Intervening)
[6]
held that whilst this test applies to persons wishing to intervene as
defendants or respondents, the first requirement thereof
(i.e the
direct and substantial interest requirement), is too limited, and
will be generally inapplicable, for persons wishing
to intervene as
plaintiffs or applicants but should be dependent, as stated in
Vitorakis
v Wolf
,
[7]
upon the determination of substantially the same question of law or
fact.
[44]
The test, therefore, is that, as in the case of joinder as of right,
the applicant for leave
to intervene must show that she has a ‘direct
and substantial interest’ in the subject matter of the dispute.
The question
to be asked is whether the party seeking leave to
intervene has a direct and substantial interest in the subject matter
of the
dispute.
[45]
MCEJO does not, in essence, dispute the fact that the applicants in
the intervention application
have a direct and substantial interest
in the review application. MCEJO’s argument is that the
applicants will not be in
a position to disclose their interest in
the review application if they do not file any documents or heads of
argument, as they
intend not to do. The argument, in my view is
misplaced. It is not necessary that the applicants in the
intervention application
file documents in the review application to
show that they have direct and substantial interest in the review
application. That
requirement should be alleged and proved in the
intervention application, as the applicants in the intervention
application have
done in this instance. For the applicants in the
intervention application to be granted leave to intervene, they
should establish
the interest in the intervention application.
[46]
The main object of MCEJO, in terms of its constitution, is to protect
the rights of the members
of the organisation who are members of the
communities affected by the open-cast coal mining in the vicinity of
where they reside.
The applicants in the intervention application
should be granted leave to intervene for whilst MCEJO’s view is
not to proceed
with the review application, the applicants in the
intervention application can take forward the interest of any other
members
of the organisation who are said not to be represented by
MCEJO and that MCEJO had undertaken to protect but seem to be
abandoning.
Thus, it can only be in the interest of justice to allow
the applicants to intervene in these proceedings.
[47]
Even if it can be accepted that MCEJO is in the review application
acting on behalf of its members,
as it alleges, the challenge is that
in its founding papers in the review application, it alleges that it
is also acting in the
public interest and the interests of all the
people residing in the vicinity of the open-cast mining who are
affected thereby.
In withdrawing the review application on the basis
of the mandate of its members only, the interests of the public and
of all the
other people residing in the vicinity of the open-cast
mining who are affected thereby, which MCEJO was protecting, will now
be
placed in jeopardy. As such, the applicants in the intervening
application, if allowed to intervene in the review application, will
be protecting the said interests.
[48]
Therefore, intervention application ought to be granted.
Re:
The Withdrawal Application
[49]
The withdrawal application is based on two grounds, namely the
withdrawal of the review application
by MCEJO and the order to
declare that Youens’ mandate has been withdrawn. I deal
hereunder with the two grounds in turn.
The
Order for Withdrawal of the Review Application
[50]
Having granted the applicants in the
intervention application leave to intervene in the review
application, whether the withdrawal
application is granted or not
seems now to be of no consequence.
[51]
In accordance with Uniform Rule 41 (1) (a), a person instituting any
proceedings may at any time
before the matter has been set down and
thereafter by consent of the parties or leave of the court withdraw
such proceedings.
[52]
It is common cause that the review application was set down for
hearing on 18 and 19 March 2021.
The application was stood down
pending the hearing of the withdrawal application. That the
application was not heard on the dates
it was scheduled for hearing,
does not mean that the matter wkas not set down for hearing.
[53]
MCEJO can, therefore, not withdraw its review application without the
consent of the respondents
in the review application or leave of the
court. It is common cause that the consent has not been granted by
any of the respondents
in the review application. The
withdrawal should, thus, be with leave of the court.
[54]
Having exercised my discretion in that regard, the withdrawal
application falls to be dismissed
on the basis of all the reasons
provided in the intervention application. Similarly, it is trite that
a court should not force
a party to pursue a matter in which it has
lost interest. It is not in dispute that MCEJO has lost
interest in the review
application and it would not be prudent to
force it to proceed with the review application, under the
circumstances. However, since
the applicants in the intervention
application have been granted leave to intervene, it means that they
have now been joined as
applicants to the review application and
MCEJO can no longer withdraw the review application. MCEJO can only
withdraw as a party
and/or litigant in the review application.
The
Order to Declare Youens’ mandate withdrawn
[55]
As regard the declarator, there is a material dispute of fact as to
who Youens is legally representing
in these proceedings or whether
Youens’ mandate has been withdrawn. As
is trite, where there is a real, genuine and
bona
fide
dispute of fact, the
Plascon
-
Evans
[8]
rule finds application, and the respondent's version must prevail
unless it is so untenable as to be rejected out of hand.
[56]
I am satisfied that the answering affidavit filed on behalf of Youens
and MCEJO contains allegations
which indeed give rise to such a
dispute of fact in respect of the material allegations underpinning
the issue of whether Youens’
mandate has been terminated and by
whom. For this reason, the
Plascon-Evans
principle dictates
that the application should be determined on the version set out in
the answering papers.
[57]
In the circumstances, the withdrawal application falls to be
dismissed.
ORDER
[58]
Consequently, I make the following order:
1.
The court dispenses with the forms and time periods for service as
required by
the rules of this court in terms of Rule 6(12) and the
intervention application is heard as a matter of urgency.
2.
The intervention application is granted.
3.
The first, second, third and fourth applicants in the intervention
application
are granted leave to intervene and to be joined as the
second, third, fourth and fifth applicants in the review application
under
case number 82865/2018.
4.
The first respondent in the intervening application is ordered to pay
the costs
of the intervening application including costs of two
counsel.
5.
The withdrawal application is dismissed.
6.
The applicant in the withdrawal application is ordered to pay the
costs of the
withdrawal application including costs of two counsel.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicants’
Counsel
:
Adv. Anna-Marie de Vos SC
Adv.
L. Ferreira
Applicants’
Attorneys
:
Youens Attorneys
1
ST
, 2
ND
,
3
RD
, & 5
TH
Respondents’
Attorney : Mr Eben Snyman
1
ST
,
2
ND
,
3
RD
, &
5
TH
Respondents’
Attorneys :
The
State Attorneys, Pretoria.
4
th
Respondent’s Counsel
: Adv. P. Lazarus SC
Adv.
N. Ferreira
Adv.
M. Salukazana
4
th
Respondent’s Attorneys
:
Malan Scholes Incorporated
9
TH
Respondent’s
Counsel
:
Unknown
9
th
Respondent’s Attorneys
:
Austen Smith Attorneys
11
TH
to 14
TH
Respondents’ Attorney
:
Mr Dennis Sibuyi
11
TH
to 14
TH
Respondents’ Attorneys
:
DMS Attorneys
Date of
hearing
:
18 March 2021
Date of
judgment
:
28 April 2021
[1]
[2014]
4 SA 67 (GP).
[2]
Twentieth
Century Fox Film Corporation v Anthony Black Films (Pty) Ltd 1982
(3) SA 582 (W).
[3]
See
Luna Meubels Vervaardigers (Edms) Bpk v Makins and Another (t/a
Makins Furniture Manufacturers) 1977 (4) SA 135 (W).
[4]
2017
(5) SA 1
(CC).
[5]
Nelson
Mandela Metropolitan Municipality v Greyvenouw CC
2004 (2) SA 81
(SE) at 898B-C.
[6]
2008
(4) SA 145
(W) at 152F – 153B.
[7]
1973
(3) SA 928
(W) at 930G – H.
[8]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints Pty Ltd 1984 (3) 623 (A) at
634E-635C.