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[2019] ZAGPPHC 298
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Tsogo Sun Casino (Pty) Ltd v Appeal Authority of Mbombela Local Municipality and Others (544/19) [2019] ZAGPPHC 298 (15 April 2019)
REPUBLIC OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION (FUNCTIONING AS
GAUTENG DIVISION, PRETORIA – MBOMBELA CIRCUIT COURT)
CASE NO: 544/19
In the matter
between:
TSOGO
SUN CASINO (PTY) LTD
Applicant
(Registration no:
1995/012674/07)
and
THE
APPEAL AUTHORITY
OF
First Respondent
MBOMBELA
LOCAL MUNICIPALITY
MBOMBELA LOCAL
MUNICIPALITY
Second Respondent
TARENTAAL CENTRE
INVESTMENTS (PTY) LTD
Third
Respondent
(Registration no:
2005/000028/07)
VIVA BENCO
MIDDELBURG (PTY)
LTD
Fourth Respondent
(Registration no:
2002/020177/07)
JUDGMENT
Roelofse
AJ:
[1]
The applicant (Tsogo) is the holder of a casino licence that
entitles it to operate the Emnotweni Casino in Mbombela. The fourth
respondent (VIVA), is the holder of a Bingo Operator Licence. This
licence permits the fourth respondent to play the game of Bingo
at a
premises in Ermelo, Mpumalanga. VIVA made application to relocate the
licence from Ermelo the Tarentaal Centre in Mbombela.
The centre is
owned by the third respondent (Tarentaal)
[2]
During 2015, an application was made through VIVA by Tarentaal
to the second respondent (MLM) for “special consent” for
a “place of amusement” on the property in terms of the
Nelspruit Town Planning Scheme. On 18 July 2018, MLM granted
the
special consent to Tarentaal in respect of Shops 11 and 14A at the
Tarentaal Centre (“
the decision”
).
[3]
Tsogo is aggrieved by MLM’s decision. Tsogo lodged an
appeal to the first respondent (the Authority). On 28 January 2019,
the Authority dismissed Tsogo’s appeal (“
the
Authority’s decision”
).
[4]
On 19 February 2019, Tsogo launched an urgent application
(“
the first application”
). The relief sought in
the first application consisted of two parts - an urgent part (Part
A) and a part to be prosecuted in the
normal course (Part B). In Part
A, Tsogo sought an interim interdict, operating with immediate
effect, that would prevent VIVA
from operating the bingo facility at
the Tarentaal Centre pending finalization of Part B of the
application (“
the interdict”
). Part B of the
application is a review of the Authority’s decision on grounds
that are pertinently relevant for purposes
of adjudicating Part B and
which I deem it unnecessary to consider in this application.
[5]
Part B of the Notice of Motion in the first application
was to proceed as a usual Rule 53 review application. It required the
Authority to submit to the registrar within fifteen days of service
of the notice of the first application
inter alia,
the record
that gave rise to the Authority’s decision and the reasons
therefore.
[6]
All of the respondents received notice of the first
application on 19 February 2019 and all of them delivered notices of
intention
to oppose same. The first, third and fourth respondents
delivered answering affidavits.
[7]
The first application was set down for hearing on 26 March
2019. The following order was made by His Lordship Mr Justice Strydom
AJ (“
the order”
) on that day:
“
By agreement by the parties the following orders are made:
1. The relief
sought in Part A is postponed sine die, subject to 2, 3 and 4
hereafter.
2. The Part B
relief will proceed as follows:
2.1 The second respondent will
file the record in the appeal proceedings by no later 1 April
2019;
2.2 The applicant will
supplement his founding affidavit by no later than 9 April 2019;
2.3 The respondents will file
their answering affidavits to the Part B relief by no later than
19
April 2019;
2.4 The applicant will file
its replying affidavit by no later than 1 May 2019;
2.5 The applicant and the
Respondents to file their heads of argument by no later than 6 May
2019; and
2.6 The parties will jointly
approach the Deputy Judge President for a special allocation of
the
hearing of the review, and will use their best efforts to ensure that
the review is heard during the period 13 to 17 May 2019.
3.
Costs in the Part A relief will be reserved.
4. The Third and
Fourth Respondents undertake that they will not, pending the final
determination of the review, commence with the operation of a Bingo
facility at Portion 56 of the Farm Besters Last No. 311, registration
division et, Mpumalanga Province.”
[8]
On
28 March 2019 and on 1 April 2019, MLM, in ostensive compliance with
paragraph 2.1 of the order, delivered bundles of documents
to Tsogo.
[9]
1
April 2019, Tsogo’s attorneys informed the Authority’s
and MLM’s attorneys, Messrs Mohulatsi Attorneys Inc.
(Mohulatsi) that certain pages in the record were either omitted or
that the record contained a numbering error (Annexure “AS2”).
Nither the parties nor the record show any response to this letter.
[10]
On 9 April 2019, at 12:00, Tsogo’s attorneys transmitted
a letter to Mohulatsi. In the letter, Tsogo informed the Authority
that the documents delivered “…
.falls short of what a
record should comprise…
” and raise various issues
over the manner in which the bundles were compiled, the irrelevance
some documents included and
the absence of some vital documents. In
its letter, Tsogo also recorded “…
.what was delivered
on 28 March 2019 and 1 April 2019 does not comply with the legal
requirements insofar as a record is concerned.
” (Paragraph
9 of Tsogo’s attorneys’ letter dated 9 August 2019 –
Annexure “A1”). Tsogo sought
an undertaking by 17:00 on 9
April 2019 that it would be provided with a fresh record rectifying
the defects, “…
.as a matter of urgency”
.
This letter was transmitted to MLM’s and the Authority’s
attorneys at 12:00.
[11]
This application was served on the respondents at 16:35 on 9
April 2019 (i.e, later the same day the undertaking was sought and
before the time afforded for the undertaking has arrived). I shall
refer to this application as “
the main application”
where the need arises. In the main application, Tsogo seeks orders
directing the Authority and MLM to supplement the record of
proceedings previously filed including orders directing them to
deliver certain specified documents and records. Tsogo also seeks
the
extension the periods agreed to and provided for in paragraphs 2.1 to
2.6 of the order. Tsogo seeks costs against the Authority
and MLM on
attorney and client scale.
[12]
VIVA and Tarentaal launched a counter-application. They pray
that the counter-application be heard on an urgent basis. In
addition,
they pray for the following orders:
“
a …….
b. …….
c. A declaratory
order that the order granted on the 26
th
March 2019 has lapsed.
d. Alternatively
that the Order dated the 26
th
March 2019 be set aside.
e. Costs in the
event that the relief sought is opposed.
f. ……..”
[13]
At the commencement of the proceedings in this application,
counsel appearing for the Authority and MLM, presented a draft order
to court. The draft order provided for an order that the Authority
and MLM supplement the record delivered to include the documents
referred to in paragraphs 2.1 to 2.10 of the Notice of Motion in this
application, an extension of the periods provided for in
paragraphs
2.1 to 2.6 of the order and that Tsogo could approach the court on
the same papers, supplemented if necessary, for relief
if the
Authority and MLM fails to comply with the aforesaid draft orders.
The counter-application and the issue of costs remained
in
contention.
[14]
I exercised my discretion, having regard to the proper
functioning of this court, and having regard to the effective
ultimate resolution
of the main dispute between the parties, to hear
the main application and counter application on an urgent basis. The
challenge
raised by the applicant’s counsel with regards to the
urgency of the counter application has no force as the applicant
required
an urgent hearing for its relief and the issues in the
counter application and the main application directly relate. Also, I
find
the Authority’s and MLM’s protestations over urgency
to be without merit.
[15]
In its founding papers, Tsogo alleges that the Authority and
MLM have failed to comply with the order because they delivered a
record
that was “…
a compendium of irrelevant
documents”
. Tsogo further alleges that: the matter is
extremely urgent because of VIVA and Tarentaal’s undertaking;
it would be extremely
prejudicial to VIVA and Tarentaal should the
review not be finalised as soon as possible; and all the other
processes and affidavits
to be filed in the review application were
dependent upon the Authority and MLM filing a complete record; that
time is of the essence
in order to expedite a hearing of the review
since VIVA and Tarentaal may not commence with the operation of a
Bingo facility at
the property pending the review; if this
application was brought in a normal course, it would not have been
adjudicated by the
time the parties “…
intend to have
the review heard by this Court”
; and, Tsogo will be
prejudiced if it is not able to supplement its founding papers as a
result of the failure by the Authority
and MLM to file the record.
[16]
In their answering affidavit (deposed to by Mohalutsi), the
Authority and MLM confirm that the parties agreed to the order. Mr.
Mohlutsi explains the circumstances of the delivery of the record and
the reasons why it is not complete. Nowhere do the Authority
and MLM
dispute that the record was incomplete. The Authority and MLM take
issue with Tsogo’s delay in waiting until 9 April
2019, the day
upon which the applicant had to deliver its supplementary affidavit
in terms of the order, to address the issues
it did regarding the
record. The Authority and MLM say that Tsogo’s urgency was
self-created.
[17]
In opposition to the relief sought by Tsogo and in support of
the relief sought by VIVA and Tarentaal in the counter application,
they allege that the order has lapsed on the basis that it was
subject to an “…
expedited appeal being heard …”
,
alternatively, that the order be set aside on the basis of either
justis error
or good cause, further alternatively, that the
time periods suggested by Tsogo are not suitable.
[18]
It is not in dispute that: the order came about through an
agreement that was reached by the parties all of whom were
represented
before Strydom AJ; the parties requested that their
agreement be made an order of court; the parties envisaged and wanted
to accomplish
an expedited hearing of the review; there was
non-compliance with the provisions of paragraph 2.1 of the order;
VIVA and Tarentaal
is licenced to operate the bingo facility; after 1
June 2019 VIVA and Tarentaal are prejudiced by a delay in the
finalization of
the review while the interim interdict remains
operative (Paragraph 4 of the order);
[19]
If the order has lapsed as VIA and Tarentaal contends, their
first alternative defence becomes academic from their perspective as
the interim interdict would no longer operate. In addition, and in
the presence of the draft order that provides for a proper record
to
be furnished together with periods within which that must happen, the
only issue that remains to be determined is whether or
not the order
has lapsed because of the Authority and MLM’s failure to comply
with paragraph 2.1 of the order.
[20]
In order to answer the aforesaid query, the order must be
interpreted. How this must be done was confirmed in
S.O.S Support
Public Broadcasting Coalition and Others v South African Broadcasting
Corporation (SOC) Limited and Others
[2018] ZACC 37
where
Kathree-Setiloane AJ, writing the unanimous judgment of the full
court, at para. 52, said:
“
Court orders are intended to provide effective relief and
must be capable of achieving their intended purpose. That must be the
starting point in interpreting a court order. The well-established
principles governing the interpretation of a court order were
expounded in Firestone and more recently endorsed in Eke: “The
starting point is to determine the manifest purpose of the
order. In
interpreting a judgment or order, the court’s intention is to
be ascertained primarily from the language of the
judgment or order
in accordance with the usual well-known rules relating to the
interpretation of documents. As in the case of
a document, the
judgment or order and the court’s reasons for giving it must be
read as a whole in order to ascertain its
intention.”
(Footnotes omitted)
[21]
In
Eke v Parsons
[2015] ZACC 30
at para. 30, MADLANGA J
(Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Molemela AJ and
Tshiqi AJ concurring), said as follows:
“
This is equally true of court orders following on
settlement agreements, of course with a slant that is specific to
orders of this
nature:
“
The Court order in this case records an agreement of
settlement and the basic principles of the interpretation of
contracts need
therefore be applied to ascertain the meaning of the
agreement. . . .
The intention of the parties is ascertained from the language used
read in its contextual setting and in the light of admissible
evidence. There are three classes of admissible evidence.
Evidence of background facts is always admissible.
These facts,
matters probably present in the mind of the parties when they
contracted, are part of the context and explain the
‘genesis of
the transaction’ or its ‘factual matrix’. Its
aim is to put the Court ‘in the armchair
of the author(s)’
of the document. Evidence of ‘surrounding circumstances’
is admissible only if a contextual
interpretation fails to clear up
an ambiguity or uncertainty. Evidence of what passed between
the parties during the negotiations
that preceded the conclusion of
the agreement is admissible only in the case where evidence of the
surrounding circumstances does
not provide ‘sufficient
certainty’.”
(Footnotes omitted.)
[22]
I proceed to interpret the order by applying the aforesaid
principles. In order to ascertain the meaning of the order, I read
and
consider the order as a whole. I accord a purposeful meaning to
each word, paragraph and the entire order.
[23]
Paragraph 1 of the order includes a specific reference to
paragraphs 2 to 4 of the order. The reference to paragraphs 2 to 4 is
preceded by the words “…
.subject to…
”.
The only interpretation of the words “
subject to
”,
is that it is an adverb of the word “
postponed
”.
An adverb is a word or phrase that modifies or qualifies a verb, or
adverb or a word group, expressing a relation of place,
time,
circumstance, manner, cause or degree. As an adverb, the words
“…subject to…” means “…
Dependent
or conditional upon…” (See: Oxford Living Dictionaries
at: https://en.oxforddictionaries.com/definition/subject)
or
“….
dependent on something else to happen or be true…”
(See: The Mirriam-Webster Dictionary at:
https://www.merriam-webster.com/dictionary/subject%20to
).
[24]
In my view that only interpretation of the order is that this:
The
lis,
constituted by the interdict (Part A), was
temporarily settled between the parties through the agreement and the
consequent order;
the complete
lis
constituted in Part A
includes VIVA and Tarentaal’s right to operate the bingo
facility at the premises and Tsogo’s
rights pending that
challenge through the right of review; VIVA and Tarentaal
relinquished their right to operate the bingo facility
pending the
review; and Part A was settled dependent upon or conditional
upon the speedy prosecution of the review facilitated
through the
orders in paragraphs 2.1 to 2.6.
[25]
This interpretation is fortified by background facts which are
not in dispute. Amongst these facts include: VIVA and Tarentaal
voluntarily
gave the undertaking with 1 June 2019 in mind; the
undertaking prevents VIVA and Tarentaal from operating the bingo
facility at
the property; VIVA and Tarentaal’s prejudice post 1
June 2019 when VIVA would have completed the preparation of the bingo
premises; the urgency that exists to prosecute and finalize the
review by virtue of the undertaking in paragraph 4 of the
order; the
review cannot be disposed of without the record; and, the agreement
was reached and the order made in order to secure
an expeditious
hearing of the review.
[26]
In my mind there is no ambiguity or uncertainty as to the
meaning of the order. Therefore, I need not venture into the
surrounding
circumstances of the conclusion of the agreement.
[27]
Paragraphs 2.1 to 2.6 and 4 imposes obligations upon each of
the parties. The provisions of paragraph 2.1 of the order obliged the
Authority and MLM to furnish the record by 1 April 2019. In light of
the draft order proposed by the Authority and MLM’s
counsel
together with the Authority’s and MLM’s denial of Tsogo’s
criticism to the record, I find that the Authority
and MLM have
failed to comply with paragraph 2.1 of the order.
[28]
The effect of the Authority’s and MLM’s
non-compliance with paragraph 2.1 of the order must be considered. I
am mindful
that: “…
. an expedited end to litigation
may not only be in the parties’ interest, it may also serve the
interests of the administration
of justice. This finds support
at common law. Le Grange quotes Huber with approval:
“
A compromise once lawfully struck is very powerfully
supported by the law, since nothing is more salutary than the
settlement of
lawsuits.” (Footnotes omitted) –
See:
Elke
, para. 22
However,
the agreement and order must be given effect to in accordance with
its meaning. The purpose of the agreement and the order
was clearly
to settle Part A and to provide for an expeditious hearing of the
review while safeguarding Tsogo’s alleged interests
in the
interim through the undertaking subject to paragraphs 2.1 to 2.6
being complied with. Paragraph 2.1 was not complied with.
The
effect is that Part A is resurrected. With Part A resurrected,
paragraph 4 cannot remain because that would be contrary to
the
parties’ intention.
[29]
In light of the aforesaid finding, it is not necessary to
consider VIVA’s and Tarentaal’s
alternative
causes
of action in the counter application. The time periods proposed in
the draft order effectively extends the prosecution of
the review
with little more than a month. This is not substantial or
unreasonable if the added advantage that Tsogo, through the
proposed
order, will be furnished with all the record it requires. It will
serve no purpose to tie the parties down to too stringent
time limits
for the further prosecution of the review. This may be
counterproductive as the effect of the order has demonstrated.
[30]
Tsogo seeks costs on an attorney and client scale. VIVA and
Tarentaal seeks costs if the relief in the counter application is
opposed.
Much is to be said over Tsogo’s delay in properly and
timeously challenging the record and its consequent delay in
launching
this application. Tsogo’s demand for a hasted
response leaves much to be desired. In my view, Tsogo is not entitled
to costs.
VIVA and Tarentaal must obviously have been acutely aware
that the timeous furnishing of the record was pivotal to the parties
complying with paragraphs 2.2 to 2.6 of the order. Yet they did
nothing to enquire into or challenge the Authority’s and MLM’s
remiss. For this I am going to deprive them of their costs in the
main application. The Authority and MLM has, despite the service
of
the review application already on 19 February 2019, only attempted at
furnishing the record in terms of the order. They are
not entitled to
any costs. VIVA and Tarentaal are substantially successful in the
counter application. They are entitled to their
costs.
[31]
In the premises, I make the following order:
1. It is hereby
declared that paragraphs 1 and 4 of the order of 26 March
2019 have
lapsed and have no further effect.
2. Paragraphs
2 to 3.6 of the draft order attached hereto, marked “A”,
is hereby granted.
3. Each
party shall pay their own costs in the main application.
4. The
applicant, first- and second respondents are ordered to pay the
third
and fourth respondents’ costs in the counter application
jointly and severally, the one paying, the other to be absolved.
JH Roelofse AJ
Acting Judge of the High Court
APPEARANCES
FOR THE APPLICANT:
Adv Liversage SC, Instructed by Murray van Rensburg Incorporated
FOR THE
FIRST AND
SECOND RESPONDENTS:
Adv Manana, instructed by Mohulatsi
Attorneys Inc.
FOR
THE THIRD AND
FORTH RESPONDENTS:
Adv Smit, instructed
by Richard Spoor Attorneys
DATE OF
HEARING:
12 April 2019
DAE OF
JUDGMENT:
15 April 2019