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[2019] ZAGPPHC 172
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Deltatex Holding Limited v Exxaro Coal (Pty) Ltd Limited and Others (166/2012) [2019] ZAGPPHC 172 (6 June 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: 166/2012
6/6/2019
In the matter between:
DELTATEX HOLDING LIMITED
APPLICANT
AND
EXXARO
COAL (PTY)LTD LIMITED
FIRST RESPONDENT
REGISTRAR OF THE HIGH
COURT
SECOND RESPONDENT
INRE:
DELTATEX
HOLDING LIMITED
PLAINTIFF
And
EXXARO
COAL (PTY) LIMITED
DEFENDANT
JUDGMENT
STRIJDOM
AJ
[1]
The applicant in its amended Notice of
Motion seeks orders, inter alia, in the following terms:
"1.
Declaring that that part of the decision handed down by the second
respondent in writing
on 28 August 2012 and attached to the
applicants' founding affidavit marked "DHL2" which reads
"within fourteen
days otherwise the plaintiff will be barred to
proceed with the matter(the impugned decision) to be
a
nullity and of no force and effect,
Alternatively
2.
…
2.1
Reviewing
and setting aside the impugned decision;
2.2
Condoning
the applicants' failure to institute these proceedings for judicial
review within '180 days after the date on which the
applicant was
informed of the administrative action referred to in paragraph 2.1
above;
Further alternatively
3.
Directing
the second respondent to uplift the bar imposed by it on 28
th
August 2012 preventing the applicant from proceeding with the action
under the aforementioned case number until and such time as
the
applicant has furnished the requisite security for costs of the
action.
Further alternatively
.
4.
Insofar
as is necessary condoning the late filing of security for costs
guarantee under the aforementioned case number.
5.
Directing
the first respondent to file its plea or take such steps as it deems
appropriate in terms of the Rules of this Honourable
Court within 20
(twenty days from date of this order."
Counter
Application.
[2]
The first respondent has brought a
counter-application in which it seeks an order setting aside the
applicants' summons and particulars
of claim and ancillary relief.
[1]
Background
[3]
The applicant instituted action against
the first respondent in January 2012.
[4]
During February 2012 the first
respondent called upon the applicant to furnish security for the
first respondents' costs.
[2]
The applicant conceded liability to furnish security for costs.
[5]
On 28 August 2012, the Registrar set the
amount of security to be furnished in the amount of R275 000.00 and
further ordered the
security to be paid by way of bank guarantee to
the first respondents' attorney within 14 days. The Registrar further
determined
that in the event of the applicants' failure to do so, it
would be barred from proceeding with the action.
[3]
[6]
The applicant has failed to furnish the
security to date hereof.
[7]
The applicant launched this application
on 27 February 2017 as an interlocutory application in the action
instituted by it under
case number 166/2012.
[4]
[8]
The founding affidavit in support of the
application was deposed to by Mr Goran Ohlsson. The first
respondents' answering affidavit
and counter claim was delivered on
29 March 2017.
[5]
[9]
The first respondent raised various
points
in limine,
including
the point that the applicant had failed to comply with the
requirements of Rule 53 of the Uniform Rules of Court and had
failed
to bring a substantive application for review of the Registrars
decision in terms of the Promotion of Administrative Justice
Act,
2000 ("PAJA").
[10]
The applicants' replying affidavit, deposed to by Mr Sibuyi, was
delivered on 20 April 2017.
At page 263, para 13.2, the applicant
through Mr Sibuyi, dismissed the first respondents' second point
in
limine
by saying that it had no basis in law.
[11]
On 20 June 2017 the applicant gave
notice of its intention to apply for the amendment of the applicants'
notice of motion at the
hearing of the matter by the insertion of a
new prayer 1 for an order declaring that that part of the decision
handed down by the
Registrar in writing on 28 August 2012, which
reads
"within 14 days otherwise
the plaintiff will be barred to proceed with the matter''
to
be a nullity and of no force and effect.
[6]
[12]
In an affidavit delivered in support of
the notice of amendment, Mr Sibuyi stated that the aforesaid part of
the Registrar's decision
constituted a nullity and that it was not
necessary for the applicant to follow the procedure contemplated in
PAJA and/or the provisions
of Rule 53.
[7]
The application was set down for hearing on 11 September 2017.
[13]
On 21 August 2017, the applicant
delivered a further notice of amendment providing for the review and
setting aside of the aforesaid
part of the Registrars' decision, and
condonation of the applicants' failure to institute the proceedings
within 180 days as required
by "PAJA".
[8]
[14]
An amendment notice of motion was
delivered on 7 September 2017 and contained a notice to the Registrar
to dispatch the record of
the proceedings and his reasons.
[15]
On 9 October 207, the applicant without
the leave of the court delivered a supplementary founding affidavit.
This supplementary
founding affidavit was disallowed by Kollaphen J
and eventually admitted by Fabriciuos J.
[16]
On 28 September 2017, the applicant
delivered another supplementary affidavit without the leave of the
court. Application was made
at the hearing of the application for
this supplementary affidavit to be struck out and the affidavit was
disallowed by Kollaphen
J.
[17]
On 22 November 2017, the first
respondent delivered a provisional answering affidavit to the
applicants' supplementary founding
affidavit, pointing out that the
applicants' supplementary founding affidavit had been delivered
without the requisite leave from
the court having been obtained and
objecting to the delivery of the affidavit and the procedure adopted
by the applicant.
[9]
Security for Costs
[18]
Rule 47 provides the mechanism for the
provision of security for costs whereas is contemplated in Rule 47
(2).
"The amount of security
only is contested the Registrar shall determine the amount to be
given and his decision shall be final.
11
In the instant matter it was only the amount of security to be given
which was contested.
[19]
Rule 47(3) provides as follows:
“
If the
party from whom security is demanded contests his liability to give
security or if he fails or refuses to furnish security
in the amount
demanded or the amount fixed by the Registrar within 10 days of the
demand or the Registrars' decision, the other
party may apply to
court on notice for an order that such security be given and that the
proceedings be stayed until such order
is complied with.
”
[20]
In terms of Rule 47(4) the court may, if
security be not given within a reasonable time dismiss the
proceedings instituted or strike
out any pleadings filed by the party
in default or make such other as it may seem fit.
[21]
It was submitted by counsel for the
applicant that it was incumbent on the first respondent in the event
of it seeking to bring
the matter to an end to have made an
application pursuant to the provisions of Rule 47(4) for an order
dismissing the proceedings.
The Delay in furnishing the Guarantee
[22]
In paragraph 4 of the notice of motion,
as amended, the applicant seeks, in alternative, an order condoning
the late filing of the
security for costs guarantee.
[23]
The counsel for the applicant submitted
that Mr Ohlsson, the sole director of the applicant became seriously
ill during September
2012 and as a result of his failing health was
unable to communicate or give instructions to the applicant's
attorneys in relation
to the furnishing of security until his
recovery during November 2016.
[24]
The applicant, did not comply with the
Registrars' directive from 28 August 2012 until November 2016.
[25]
There is no proper explanation for the
delay during the period 7 September 2012 to 19 November 2016. There
is no explanation why
the security could not have been furnished at
an earlier stage and why it could not be furnished within the 14 days
stipulated
by the Registrar.
[26]
The applicant in its replying affidavit
did not attempt to deal with the allegations contained in paragraph
32 of the answering
affidavits.
[10]
[27]
The second respondents' decision was
made on 28 August 2012, the applicant furnished its guarantee on 21
December 2016 which was
replaced by a second guarantee on 2 February
2017.
[28]
The applicants' delay in furnishing
security has brought about an unordinated delay. It is an overarching
requirement of public
policy that the principle of finality in
litigation should generally be preserved rather than be eroded.
[11]
[29]
In my view the applicant has not shown
good cause for the indulgence sought by it.
The Decision of the Registrar
[30]
The applicant in prayer 1 of its amended
notice, seeks an order declaring part of the decision handed down by
the Registrar of the
High Court, Pretoria on 28 August 2012, which
reads:
"within 14 days otherwise
the plaintiff will be barred to proceed with the matter'
to
be a nullity and of no force and effect.
[31]
The Registrar's decision constitutes
"Administrative Action" within the meaning of PAJA.
[12]
[32]
In the case of invalid administrative
action, the law remains that the Administrative act remains legally
effective until set aside
by a competent Court. The principle was
endorsed and applied by the Constitutional Court.
[13]
The Review Application
[33]
In prayer 2 of the amended notice of
motion, the applicant seeks the review and setting aside of the
Registrars' decision, as well
as condonation for its delay.
[34]
It was conceded by counsel for the
applicants' that the impugned decision of the Registrar is reviewable
in terms of section 6(2)(a)(i)
of PAJA. However the application to
review the impugned decision was not brought within the period of 180
days after the date the
applicant became aware of the impugned
decision.
[14]
[35]
In terms of section 9(2) of the PAJA a
Court may grant an application extending the period
"
where the interest of justice so require."
[36]
In my view the application for the
setting aside of the Registrars decision, should have been made, from
the start, in terms of
PAJA.
Delay under PAJA.
[37]
It is trite that a party seeking an
extension of timeframes (in terms of Section 9(2) of PAJA) must
furnish a full and reasonable
explanation for the delay which covers
the entire duration thereof and factors relevant thereto, the nature
of the relief sought,
the extent and cause of the delay, the effect
on administrative justice and other litigants, the importance of the
issue to be
raised in the intended proceedings and the prospect of
success.
[15]
[38]
The question of delay must be dealt with
before the merits of the review can be entertained. Unless an
extension is granted, a court
is precluded from embarking upon the
merits of a review application.
[39]
In Cape Town City v Sanral
[16]
a Full Court set out the criteria which empowers a Court to extend
the time period in which an application to review a decision
under
PAJA may be brought outside the 180 day period as follows:
"[15] The effect of Section
7
(1) read with section 9 of PAJA is
thus largely to restate and codify the common law delay rule. Because
PAJA is the legislation
contemplated in terms of Section 33(3) of the
Constitution the provisions of Section 7(1) read with as a legal
principle pertaining
to the exercise and enforcement of the
fundamental right that everyone has to administrative action that is
lawful, reasonable
and procedural fair. The ambit of the right of
access to court in terms of Section 34 of the Constitution thus falls
to be defined
consistently with the limiting and controlling effect
of Section (7)(1) and 9 of PAJA.
[16] In Opposition to
Urban
Tolling Alliance v The South African National Roads Agency Ltd
supra in [13] (hereafter cited as OUTA (SCA), it was held that if an
application for review under PAJA were brought outside the
180 day
period stipulated in Section 7(1)
a
court is only empowered to entertain
it if the interest of justice dictates an extension in terms of
Section 9. This highlights
the legal character of the effect of
Section 7(1) read with Section 9, as distinct from the judicial
policy nature of the delay
rule under the common law. The common law
delay rule continues to apply in the traditional way, as
a
matter of judicial policy, in respect
of review challenges to the exercise of public power that do not fall
within the purview of
PAJA."
[40]
Later at paragraph [21] the court said
the following:
"[21] The outcome of an application for
condonation in terms of Section 9 of PAJA falls, according to the
tenor of the provisions,
to be determined in the courts assessment of
whether, notwithstanding an unreasonable delay by the applicant in
commencing proceedings
the interest of justice nevertheless require
it to entertain the review."
[41]
It was submitted by counsel for the
applicant that it would be in the interest of justice to condone the
applicants' unreasonable
delay in instituting the review proceedings
for the following reasons:
"41.1 The impugned decision
constitutes nothing more than an impediment in the litigation between
the applicant
and the first respondent;
41.2
The first respondent was content
to remain supine when the applicant failed to put up security
notwithstanding the first respondents
remedies in terms of Rule 47.
41.3
The review application is
unanswerable inasmuch as, the second respondents' impugned decision
relates to
a
matter
which he was not authorised to do so.
41.4
If the relief sought is granted
and the matter goes to trial the first respondent will not be
prejudiced.
41.5
The delay in launching the review
proceedings was brought about almost entirely as
a
result of
a
failure to appreciate that the relief
the applicant seeks should have been by way of review proceedings and
not on the basis upon
originally when stems from
a
failure to appreciate that the
impugned decision constitutes administrative action contemplated in
PAJA.
[42]
It was further submitted that the abovementioned misunderstanding
coupled with the delay brought
about in furnishing security
constitutes a proper reason for the delay.
[43]
In the applicants founding affidavit it is clear that the applicant
was aware of the decision
as far back as September 2012 . The
applicant blames the inordinate delay on the poor health of its
director and the applicants'
attorneys' ignorance of the law.
[44]
The first respondent in its answering affidavit raised a point
in
limine
that the applicant had failed to comply with the
requirements of Rule 53 of the Uniform Rules of Court and had failed
to bring a
substantive application for review in terms of the
Promotion of Administrative Justice Act, 2000 ("PAJA").
[45]
The applicants' replying affidavit deposed to by Mr Sibuyi, was
delivered on 20 April 2017. At
page 263, paragraph 13.2, the
applicant through Mr Sibuyi, dismissed the first respondents' point
in limine
by saying that it had no basis in law. The applicant
thus elected to continue on the course adopted by it.
[46]
The applicant, in its heads of argument at para 130, admits to an
unreasonable delay in instituting
the review proceedings.
[47]
The grounds on which the first respondent relies as basis why the
review should not be granted
to the applicant can be summarised as
follows:
"47.1 The first respondent
will suffer prejudice it the matter is allowed to continue, inasmuch
as a lot of documentation
has been lost,
47.2
After the execution of the Anton
Pillar order, it is alleged that certain documentation which had been
removed, was not returned,
47.3
Exxaro International Trading BV
has since been deregistered and that certain documents that were in
its possession and are crucial
for the first respondents defence
cannot be located,
47.4
Two individuals, one Myburgh and
one Shaw, who are described as crucial witnesses have left the employ
of the first respondent or
the group of companies, are not freely
available to the first respondent and there is no assurance of their
co-operation,
47.5
In answering the question whether
the lapse of time should preclude a Court from setting aside an
invalid administrative act (it
being disputed by the first respondent
that any of the registrar's administrative actions relevant herein
were invalid) it has
been held that an important consideration will
be..." the extent to which the Appellant or third parties might
have acted
in reliance upon it."
[17]
47.6
The applicant failed in its duty
to take all reasonable steps available to it to investigate the
reviewability of administrative
decision alleged to have adversely
affected it as soon as it was aware of such decision. Thus the
applicant failed to do not only
in respect of the review application,
but also in respect of prosecuting the review application.
47.7
There was, in the founding
affidavit, no application for condonation or extension of time in
respect of the review application.
[48]
The following was said in Opposition to
Urban Tolling Alliance v South African National Roads Agency
Limited.
[18]
"[41] After all is said and done, the
stark reality remains that because of the delay in bringing the
review application, five
years had elapsed since the impugned
decisions were taken, and that during those five years, things have
happened that cannot be
undone. The delay rule gives expressions to
the fact that there are circumstances in which it is contrary to the
public interest
to attempt to undo history. The clock cannot be
turned back to when the toll roads were declared and I think it would
be contrary
to the interest of justice to attempt to do so."
[49]
In
Mkhwanazi
v Minister of Agriculture and Forestry, Kwa Zulu,
[19]
it was held that the reasoning underlining the principle that delays
may be fatal to an application, must equally also apply pertaining
to
the prosecuting of such application. This being so, not only
resulting from a High Courts inherent power derived from common
law,
but also from its power derived from Section 173 of the Constitution,
to regulate its own process.
[50]
Having considered the submissions made
by counsel for the parties and having considered the affidavits
filed, I am of the view that
50.1
There
has been an inordinate delay on the part of the applicant;
50.2
The
applicants' failure to furnish security timeously has not been
explained;
50.3
The
first respondent will be prejudiced if the relief sought is granted,
50.4
It
will not be in the interest of justice to condone the delay in
respect of the review application and also in respect of prosecuting
the review application. By now almost 7 years have passed.
50.5
The delay is such as to constitute an
abuse of the Courts process.
[20]
Peremption
[51] If the
applicants' application for condonation or an extension can be
entertained the applicants'
problem is compounded by the fact that it
accepted the second respondents' order, if not granted by agreement,
firstly by not protesting
and secondly by actively requesting an
extension from the second respondent.
[52] It was held
in
Liberty Life Association of Africa
v Kackelhaffer NO
that;
[21]
" The right of an unsuccessful litigant
to appeal against an adverse judgment or order is perempted if such
a
litigant by unequivocal conduct,
inconsistent with an intention to appeal, acquiesces therein."
[53]
The onus of proving that a right of
appeal or review has been peremted rest on the party alleging it.
[54]
In my view the applicants' right of
review has become peremted as the applicant by not protesting,
acquiescing and actively requesting
an extension from the second
respondent, abandoned or waived its right to bring the ruling of 28
August 2012 of the second respondent
on review.
The Counter application
[55]
The first respondent in its counter
application seeks the dismissal of the applicants' claim in terms of
Rule 47(4) on the basis
that the applicant has failed to furnish
security within the time stipulated by the Registrar or within a
reasonable time.
[56]
It was submitted by counsel for the
applicant that, the respondents' counter application is
premature. It was further submitted
that it is clear from Sub-Rule 47
that prior to applying for the dismissal of a claim for the want of
furnishing security within
a reasonable time must be preceded by an
application
" to Court on notice
for an order that such security be given, and that the proceedings be
stayed until such order is complied
with"
must
have been granted.
[57]
Counsel for the applicant argued that
the second counter-application is devoid of merit, inasmuch as, the
action has been prosecuted
and the delay is excusable and there is no
serious prejudice to the respondent.
[58]
I have dealt with the applicant' failure
to provide security within a reasonable time, as well as applicants
delay in prosecution,
supra.
[59]
Having dealt with the requirements for
showing that an action be dismissed for want of prosecution and
having exercised my discretion,
I am of the view that the applicants
claim be dismissed.
[60]
In the result the following order is
made:
60.1
The applicants' application is
dismissed;
60.2
The first respondents' counter
application is granted;
60.3
The applicant is ordered to pay the
costs of the application and the counter-application, such costs to
include the costs of two
counsels.
JJ STRIJDOM
ACTING JUDGE OF THE HIGH COURT
Matter
heard:
3 May 2019
Judgment
delivered:
6 June 2019
Counsel
for Applicants':
SL Joseph SC and HL Fischer
Instructed
by:
DMS Attorneys
Counsel
for Defendant:
F Terblanche SC
and C Bothma
Instructed
by:
Webber Wentzel Attorneys
[1]
Answering Affidavit
("AA"),
Annexur e "CA1"
page 256..
[2]
Annexure "AA1" page 205
[3]
Founding affidavit page 12, para 37, annexure "DHL2, page 25
[4]
Notice of Motion , Vol 1 page 1-4
[5]
Vol 2, page 154-204
[6]
See page 352
[7]
Vol 4 , 3 5 7, para 10
[8]
See Notice of amendment, page 370 -373
[9]
Vol 5, page 425, para 5
[10]
Page 268, para 25
[11]
Firestone South Africa (Pt y)Ltd v Genticuro Ag 1977(4)SA 298 (A) at
309 A
[12]
Trakman NO v Livshitz 1995(1) SA 282(A)
[13]
MEC for Health, East ern Cape vs Kirland Investments 2014(3) SA
481(CC) and Oudekraal Estates v City of Cape Town 2004(6) SA
222
(SCA).
[14]
Section 7 (1) of PAJA
[15]
Beweging vir Christelike - Volkseie Onderwys v Minister of Education
(308/ 2011) [2012] ZASC 45
[16]
Cape Town City v South African National Roads Agency Ltd and Others
2015(6) SA 535 (WCC).
[17]
Oudekraal Estates(Pty) Ltd supra and Walgroeiers Afslaers (Edms) BPK
v Minisipaliteit van Kaapstad 1978(1)(AD) at 40 E-G and
42 C-D.
[18]
[2013] 4 All SA 639 (SCA).
[19]
1990(4)SA 763 (D) at 766 G-H
[20]
2001(3) SA 1094 (C).
[21]
Cassimjee v Minster of Finance, 2014(3) SA 198 (SCA).