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[2018] ZANCHC 26
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Firebird Mining (Pty) Ltd v Hans Kanon Plase (Pty) Ltd and Others (2933/17) [2018] ZANCHC 26 (11 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case No: 2933/17
Heard on: 23/03/2018
Delivered
on: 11/05/2018
In
the matter between:
FIREBIRD MINING
(PTY) LTD
APPLICANT
And
HANS KANON PLASE (PTY)
LTD
FIRST RESPONDENT
DIDIMALA DIAMONDS
CC
SECOND RESPONDENT
THE MINISTER OF MINERAL
RESOURCES THIRD
RESPONDENT
THE DIRECTOR –GENERAL:
DEPARTMENT OF MINERAL
RESOURCES
FOURTH RESPONDENT
ACTING REGIONAL MANAGER:
MINERAL
REGULATION AND
ADMINISTRATION:
NORTHERN CAPE REGIONAL
OFFICE:
DEPARTMENT OF MINERAL
RESOURCES
FIFTH RESPONDENT
Summary: Interim
interdict granted- return date for final interdict- first and second
respondents not opposing the granting
of the final
interdict paras 2.1 – 2.4- oppose the granting of costs
para 2.5 of the rule nisi only.
JUDGMENT: FINAL INTERDICT
MAMOSEBO
J
[1]
The applicant, Firebrand Mining (Pty) Ltd, is seeking confirmation of
the following interim order granted by my sister Williams
J against
the first and second respondents on 07 December 2017:
1.1
First and second respondent and all those who hold possession
under First respondent of the farm
Trentham, more fully described
as Portion 2 (a portion of portion 1) (Trentham) of the Farm Number
225 Barkley West
(“the property”) are ordered and
directed to cease all mining operations on the property forthwith;
1.2
First and second respondent, and all those who hold
possession under first respondent of
the property, are interdicted
and restrained from in any way conducting any further mining
operations on the property;
1.3
First and second respondent are directed to, within ten (10) days of
the issue of this order, submit
to applicant an inventory of all
diamonds mined on the property by them or under their control or at
their behest, such inventory
to include a full description and the
weight of each and every such diamond mined;
1.4
First and second respondents are ordered and directed to deliver to
the applicant any diamonds that
they have in their possession which
were mined on the property.
1.5
First and second respondents are jointly and severally ordered to pay
the costs of this application
on the scale as between attorney and
own client: Provided that should any other respondent oppose the
application, such respondent
pay the costs on the party and party
scale jointly and severally the one paying the other to be absolved
pro tanto.
[2]
That the relief set out in 1.1 and 1.2 above were ordered to operate
as an interim interdict pending the finalisation of this
application.
[3]
No relief is sought against the third to fifth respondents as they
were only joined to the proceedings because of their interest
in the
matter.
[4]
Mr Pieter Frederick Swart, the Regional Manager in the Department of
Mineral Resources in the Northern Cape Region deposed to
an
explanatory affidavit on behalf of the third to fifth respondents. He
confirmed that they do not oppose the application and
that the
affidavit was merely filed to assist the court. He further confirmed
that the applicants are the rightful holders of a
mining right on the
said property.
[5]
The first and second respondents are not opposing the granting of the
final interdict as prayed for and only sought to oppose
the awarding
of costs against them.
The first and second respondents’
answering affidavit
[6]
I first heard the parties on the late filing of the answering
affidavit before dealing with the issue of costs. The first and
second respondents filed an answering affidavit deposed to by Mr
Frederick Snyman only in respect of costs. Adv Van Heerden SC,
appearing for the applicant, urged me not to accept the affidavit
since it was filed way out of time, after the applicant had already
filed its heads of argument, and therefore not in accordance with the
Uniform Rules of Court. Counsel further argued that the affidavit
is
riddled with hearsay evidence and has dealt with information
contained in the correspondence between the attorneys that was
specifically marked ‘without prejudice’.
[7]
Adv Van Tonder, for the respondents, submitted that the first and
second respondents had assumed that they could file the answering
affidavit at any time since no time lines were specified for filing
after the interim order was granted. Counsel further
argued
that the applicant must bear the costs because it failed to curtail
proceedings, it demonstrated improper conduct and caused
unnecessary
litigation; and that the applicant was well aware that the
respondents had stopped operating on its mine when it approached
court. Even though no condonation for the late filing of the
affidavit was sought, argued counsel, the respondents will still
oppose the application on the founding papers.
[8] Rule 6(4)(d) of the Uniform Rules stipulates:
“
(d)
Any person opposing the grant of an order sought in the notice of
motion shall –
(i)
Within the time stated in the said notice,
give applicant notice, in writing, that he or she intends to oppose
the application,
and in such notice appoint an address within 15
kilometres of the office of the registrar, at which such person will
accept notice
and service of all documents, as well as such person’s
postal, facsimile or electronic mail addresses where available;
(ii)
Within fifteen days of notifying the
applicant of his or her intention to oppose the application, deliver
his or her answering affidavit,
if any, together with any relevant
documents; and
(iii)
………”
[9]
Mr Van Tonder opposed the urgent
application on 07 December 2017 and noted the order by Williams J
including the return date of
23 March 2018. Counsel was therefore
well aware of the process and so were his clients. The
respondents’ answering
affidavit was due by end of January 2018
but none was filed. Mr Van Heerden argued that the applicant filed
its heads of argument
on the basis that no answering affidavit would
be forthcoming and submitted that the out of time affidavit should be
disallowed
with costs to avoid prejudice to the applicant.
[10]
Pertaining to applying for condonation for the late filing of the
answering affidavit the Supreme Court of Appeal pronounced
as
follows in
Minister
for Safety and Security (now Minister of Police) v Scott and
Another
[1]
:
“
The
principles relating to condonation are well established. The factors
that this Court will have regard to when considering such
an
application include the adequacy of the explanation, the extent and
cause of the delay, any prejudice to the parties, the importance
of
the case, a respondent’s interest in the finality of the
judgment of the court below, the avoidance of unnecessary delay
in
the administration of justice and the applicant’s prospects of
success on the merits. Condonation is an indulgence, not
to be had
merely for the asking. A litigant who does not comply with the rules
is required to show ‘good cause’ why
the rules should be
relaxed.”
[11]
It is on the basis of the above reasons and principles that the
respondents’ answering
affidavit cannot be
allowed.
The
question of costs on the merits
[12]
Smalberger JA’s pronouncements on costs are instructive. In
Intercontinental
Exports (Pty) Ltd v Fowles
[2]
the Judge stated
:
“
[25]
The basic rule is that, statutory limitations apart, all costs awards
are in the discretion of the court
(
Kruger
Bros & Wasserman v Ruskin
1918 AD
63
at 69, a decision which has consistently been followed).
The court’s discretion is a wide, unfettered and equitable
one. It is a facet of the court’s control over the
proceedings before it. It is to be exercised judicially with
due regard to all relevant considerations. These would include the
nature of the litigation being conducted before it and the conduct
of
the parties (or their representatives). A court may wish, in
certain circumstances, to deprive a party of costs, or a
portion
thereof, or order lesser costs than it might otherwise
have done, as a mark of its displeasure at such party’s
conduct
in relation to the litigation. Is it to be precluded by
agreement from doing so? A court should not be obliged to
give its
imprimatur to an order of costs which, in the circumstances, it
considers entirely inappropriate or undeserved.
In my view, as
a matter of policy and principle, a court should not, and must not,
permit the ouster of its discretion because
of agreement between the
parties with regard to costs.”
[13]
Mr Van Tonder contended that since the applicant has unnecessarily
caused costs it should bear them. Counsel submitted
that the
applicant was aware as of 29 November 2017 that mining
operations had stopped. The respondents
went as far as
to give an undertaking that they will not proceed with mining
a day before the urgent application was heard.
Therefore, it was
unnecessary for the applicant to approach the court.
[14]
Mr Van Heerden countered that the applicant has a mining right over
the land owned by the respondents. It was denied access
to the land.
Applicant’s attorneys wrote to the respondents on 01 December
2017 notifying them that they are in contravention
of its mining
rights and the Mineral and Petroleum Resources Development Act
[3]
(MPRDA) by conducting mining operations on that property. The
applicant demanded that the respondents should cease such operations
immediately; provide an inventory of all the diamonds mined on that
property and hand them over to the applicant failing which
will leave
the applicant with no option but to approach the court on an urgent
basis.
[15]
Despite the fact that the letter was served by the sheriff of the
court on the respondents, no response was forthcoming until
the
applicant served and filed court papers on 05 December 2017. By the
time the said undertaking not to mine was made on 06 December
2017
the papers were already filed.
[16]
The question is whether the applicant acted unreasonably in
approaching the Court for its relief. In my view, I do not think
so.
Mr Van Heerden has correctly submitted even if the respondents had
allegedly ceased the unlawful mining operations and directed
all
those who were in possession of the property to cease
operating unlawfully on the property, the inventory of what was
mined
in the property and the handing over of the illegally mined diamonds
had not been complied with. This, in my view, entitled
the applicants
to seek its relief from the Court.
[17]
The purpose of an award of costs is to indemnify a party. A party
seeking attorney and client costs seeks an even greater indemnity
for
costs incurred through having to pursue its claim in court. The
applicant was forced to approach Court for relief since the
respondents had not responded to its attorney’s letter of 01
December 2017. There is also no reason why the respondents could
not
tender costs having conceded the merits. I share the sentiment
expressed by Van Niekerk J in
Gamlan
Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd and
Another
[4]
.
The merits have
been disposed of and only the question of costs remained. There was
no basis for the Court to have to hear argument
on costs to determine
liability. It is a wasteful, costly and futile exercise. See also
Jenkins v SA
Boilermakers, Iron & Steel Workers & Ship Builders
Society.
[5]
[18]
I am of the view that it is just to order the respondents to pay the
costs of the application, including the costs occasioned
by the
excluded answering affidavit. The conduct of the respondents in
litigating this matter also justifiably attracts a punitive
cost
order. I am also mindful of the unwarranted delay in filing the
answering affidavit and the fact that the respondents did
not oppose
the relief sought save for opposing the award of costs. The applicant
was forced to be out of pocket in pursuance of
its rights. In the
circumstances there is justification in awarding costs on the scale
as between attorney and own client.
[19]
In the result, the following order is made:
1.
The rule nisi issued
out of this Court on 07 December 2017 is confirmed.
2.
The first and second
respondents are jointly and severally ordered to pay costs of this
application, including costs for the answering
affidavit, on the
scale as between attorney and own client, the one paying the other to
be absolved.
_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION
For
the applicant:
Adv M Van Heerden SC
Instructed
by:
Engelsman Magabane Inc
For the 1
st
and 2
nd
respondents:
Adv AG Van
Tonder
Instructed by:
Van der Wall
Incorporated
For the 3
rd
, 4
th
and 5
th
respondents: The State
Attorney
[1]
[2014] 3 All SA 306
(SCA) at 313c-d (para 16)
[2]
1999 (2) SA 1045
at 1055F - I
[3]
28 of 2002
[4]
1996 (3) SA 692
(CPD) at 700G – J
[5]
1946 (2) WLD 15
at 17 - 18