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2021
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[2021] ZAMPMBHC 5
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Pine Glow Investments (Pty) Ltd v Minister of Energy and Others (3525/2020) [2021] ZAMPMBHC 5 (22 January 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
REPORTABLE: NO
OF INTEREST TO
OTHER PARTIES: NO
REVISED:
YES
CASE
NO: 3525/2020
In the matter
between:
PINE
GLOW INVESTMENTS (PTY) LTD
Applicant
and
THE
MINISTER OF
ENERGY
First Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
Second Respondent
ERF
6 HIGHVELD TECHNOPARK INVESTMENTS
Third
Respondent
(PTY) LTD
NAD
PROPERTY INCOME FUND (PTY) LTD
Fourth Respondent
ROYALE
ENERGY (PTY) LTD
Fifth Respondent
ROYALE
ENERGY GROUP (PTY) LTD
Sixth Respondent
ROYALE
ENERGY MANAGEMENT SERVICE (PTY) LTD
Seventh Respondent
ROYALE
ENERGY ELIFANTSFONTEIN (PTY) LTD
Eighth Respondent
VIVA
OIL (PTY) LTD
Ninth Respondent
TOKIVECT
(PTY) LTD
Tenth Respondent
J
U D G M E N T
MASHILE
J:
[1]
This was an urgent application comprising two parts, Part A and B.
The former was intended
to be an interim interdict pending resolution
of Part B, a review application. The application was opposed by the
Third and Fourth
Respondents while all the other Respondents,
including the First and Second Respondents, did not. In essence, the
parties before
this Court are the Applicant, on the one side, the
Third and Fourth Respondents on the other. As such, reference to
Respondents
will mean the Third and Fourth Respondents.
[2]
Formulation of the prayers in Part A of the notice of motion was
incorrect in consequence
of which the Applicant sought their
amendment. The amendment became contested through a Notice in terms
of Rules 30 and 30A of
the Uniform Rules of Court. Part A ultimately
became settled on the basis that the Third and Fourth Respondents
would not proceed
with the sale of petroleum products until 2
February 2021.
[3]
Once that settlement was finalised, the question became one of costs
- who was to bear the
costs of the Rule 30 and 30A, and Part A? The
Third and Fourth Respondents adopted the attitude that they were
largely successful
and as such, costs ought to follow results, as is
normally the position. Conversely, the Applicant held the view that
each party
should pay its own costs as neither the one or the other
could claim an outright victory.
[4]
The Applicant initially approached this Court on a notice of motion,
prayers of which had
been formulated as one seeking final relief
albeit that it was manifest that it meant to pursue interim relief
pending the outcome
of Part B. In their answering affidavit, the
Third and Fourth Respondents alerted the Applicant to the inadvertent
error in the
formulation of its prayers. In response and only after
receipt of the delivery of the record referred to in Rule 53(3), the
Applicant
sought to amend both Part A and B using one vehicle, Rule
53(4). The Rule provides that:
“
The
applicant may within ten days after the registrar has made the record
available to him, by delivery of a notice and accompanying
affidavit,
amend, add to or vary the terms of his notice of motion and
supplement the supporting affidavit.”
[5]
The Respondents objected to the procedure adopted by the Applicant in
amending
Part
A of the notice of motion. The essence of the argument was that a
party could not
utilize
Rule 53(4) to amend Part A, which had nothing to do with the review
application in Part B. The procedure on which the Applicant should
have embarked
is described in Rule 28(1), which provides:
“
Any party
desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings, shall
notify all
other parties of his intention to amend and shall furnish particulars
of the amendment.”.
The Applicant has
failed to invoke Rule 28 and it could not do so then, concluded the
Respondents.
[6]
The Applicant, on the other hand, asserted that Part A and B were so
inextricably connected
that one could use Rule 53 to amend both.
Furthermore, added the Applicant, Rule 6(12((a) states that in urgent
applications the
court or a judge may dispense with the forms and
service provided for in these Rules and may dispose of such matter at
such time
and place and in such manner and in accordance with such
procedure (which shall as far as practicable be in terms of these
Rules)
as to it seems meet. The provisions of that Rule are
sufficiently wide to allow this Court to exercise its discretion in
favour
of the proposed amendment.
[7]
I refused the application to amend Part A of the notice of motion and
undertook to furnish
reasons later and these are my reasons. To the
extent that Part A is couched in the terms of a
final interdict,
there is no nexus between it and Part B.
Even assuming that it was an interim application, correctly
articulated,
it still could not be said to have been intricately
connected to Part B. This is for the simple reason that the two can
be disposed
of independently of each other and at different stages.
On that basis, the two cannot be said to be entwined. As a result, I
fail
to understand how Part A can be lumped together with the Part B
amendment governed by Rule 53(4). In any event, it is clear that
Rule
28 is of general application but specifically to pleadings whereas
the Rule 53(4) is designed for reviews.
[8]
The Applicant would have this Court believe that it is entitled to
rely on Rule 6(12(6)(a)
to use its discretion to practically bring
the amendment under a single Umbrella of Rule 53(4). As already
remarked above, the
procedures are different for a reason and
meddling with the two may yield undesired results. That said, I can
perceive no barrier
in applying the Rule within the precinct of each
and that is the purpose for which it has been intended anyway.
[9]
Lastly, the Applicant also made the point that the Respondents have
not demonstrated any
prejudice if the amendment were to be permitted.
I do not believe that the Respondents have to show prejudice in these
circumstances
as it concerns procedure that can be cured by amendment
under Rule 28 read with Rule 6(12) or Rule 28 read with Rule
6(12)(a).
Perhaps I should add that prejudice exists as every
litigant’s expectation is that matters will be dealt with under
prescribed
set of rules. Intermittent adherence to those rules
especially in circumstances where they are widely accepted and
practiced will
necessarily result in prejudice.
[10]
Insofar as costs of this application are concerned, it is inexorable
that they should
follow the result. That is to say
that the Respondents were entirely successful and it is
only fair and just that
they be awarded costs of the application.
[11]
Turning then to the costs of Part A. The Applicant came to court
hoping for relief
in
the form of an urgent interim interdict pending finalisation of the
review application. To the extent that the settlement has
a cut-off
date of the 2
nd
of February 2021, the Applicant cannot
claim total victory. The Applicant has also not succeeded in
interdicting the Respondents
from proceeding with the construction of
the filling station. The Respondents too did not walk away satisfied
that they were triumphant
because their initial stance was that the
application be struck off the urgent roll for lack of urgency
alternatively and in the
event that the Court found that urgency was
not present, that the application be dismissed with costs.
[12]
The position is that both parties had to abandon their original
stances and converge on the date of
the 2
nd
of February
2021. With that understanding in mind, I tend to agree with the
Applicant that neither party was completely successful
to a degree of
deserving costs against the other. My agreement with the Applicant,
however, is limited to the costs relating to
Part A and not the
notice in terms of 30 and 30A. A fair and just order therefore would
be one that recognizes this fact. Against
that background, I make the
following order:
1.
The Third and Fourth
Respondents undertake not to commence with the streaming of petroleum
products from Erf 930 Greenvalley Ext
1 Township, Acornhoek,
Mpumalanga, up to and until the 2
nd
of February 2021;
2.
The Applicant is liable
to the Respondents for the costs of the Rule 30 and 30A notice;
3.
No cost order is made
as regards the Part A application.
______________________________
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 22 January 2021 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Adv G Erasmus
Instructed
by:
WDT Attorneys Inc
Counsel for
Respondents:
Adv AVenter
Instructed
by:
A Kock and Associates Inc
Date of
Hearing:
21 January 2021
Date of
Judgment:
22 January 2021