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[2018] ZAKZPHC 11
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Galaxy Bingo Pavilion (Pty) Ltd and Others v Peermont Global KZN (Pty) Ltd and Others (14006/16P) [2018] ZAKZPHC 11 (17 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWA-ZULU
NATAL DIVISION, PIETERMARITZBURG
CASE NO:
14006/16P
In
the application between:
GALAXY
BINGO PAVILION (PTY) LTD
First
Applicant
GALAXY
BINGO MIDLANDS (PTY) LTD
Second
Applicant
GALAXY
BINGO GATEWAY (PTY) LTD
Third
Applicant
GALAXY
BINGO KWAZULU-NATAL (PTY) LTD
Fourth
Applicant
GALAXY
BINGO AMANZIMTOTI (PTY) LTD
Fifth
Applicant
GALAXY
BINGO SOUTH COAST (PTY) LTD
Sixth
Applicant
GALAXY
BINGO EMPANGENI (PTY) LTD
Seventh
Applicant
And
PEERMONT
GLOBAL KZN (PTY) LTD
AND
FOURTEEN OTHERS
In
re
:
The
matter between:
First
Respondent
Second
to Fifteenth Respondents
PEERMONT
GLOBAL (KZN) (PTY) LTD
And
Applicant
CHAIRPERSON,
KWAZULU-NATAL GAMING AND BETTING BOARD
AND
TWENTY OTHERS
First
Respondent
Second
to Twenty-First Respondents
Coram:
Koen J
Heard:
16 March 2018
Delivered:
17 April 2018
ORDER
The application is
dismissed with costs, to include the costs of two counsel where so
employed.
JUDGMENT
Koen
J
Introduction
[1] In
this application
[1]
the
applicants seek the following relief:
‘
1
Staying the review application brought by Peermont Global (Pty) Ltd
under this case number until the finalisation of the application
brought by Afrisun (Pty) Ltd t/a Sibaya Casino & Entertainment
Kingdom in case number 1366/2015, and in the event of a ruling
that
those proceedings may continue, the final determination of the review
proceedings under case number 1366/2015.
2
Directing that the costs of this application be paid by any and all
Respondents that oppose this application, jointly and severally,
alternatively that the costs of this application be costs in the
cause of the review application under this case number;
3
Granting the Applicants further and/or alternative relief.’
[2]
Relevant
Background Facts
[2]
The factual chronology relevant to this application includes the
following:
[3]
On 16 January 2015 the second respondent, the KwaZulu-Natal Gaming
and Betting Board (‘the Board’),
[3]
took
a decision regarding the grant of amended bingo licences to various
bingo operators.
[4]
That
decision, hereinafter referred to as ‘the impugned decision’,
subsequently turned out to be controversial.
[4]
On 30 January 2015 the Premier of KwaZulu-Natal (‘the Premier’)
and the Member of the Executive Council of Finance
for KwaZulu-Natal
(‘the MEC’) brought an application under case number
1366/15 (‘the MEC’s review’)
to review the impugned
decision, seeking an order that it be set aside and be declared null
and void. The applicants in the present
application (collectively
referred to hereinafter as ‘the Galaxy parties’) are
amongst the respondents in the MEC’s
review.
[5]
The
first respondent, Peermont Global KZN (Pty) Ltd (‘Peermont’),
the fourteenth respondent, ‘Afrisun KZN (Pty)
Limited’
(‘Afrisun’) and the fifteenth respondent in this
application, ‘the Peoples Forum Against Electronic
Bingo
Terminals’ (‘the Forum’) were not cited as parties
to the MEC’s review.
[5]
On 3 and 4 February 2015 Afrisun and the Forum applied for leave to
intervene as co-applicants in the MEC’s review. In
its Notice
of Motion dated 3 February 2015 in, what will hereinafter be referred
to as ‘the Afrisun review’, Afrisun
also contemplated a
review of the impugned decision in the relief it claimed, the
relevant parts whereof included the following:
’
1.
…
2.
That (Afrisun) is granted leave to intervene as the Third Applicant
in the (MEC’s review).
3.
Granting the relief sought by the (Premier and MEC) in paragraphs 1,
2.1, 2.2, 2.4, 3 and 4 of the Notice of Motion to the (MEC’s
review).
4.
That (Afrisun) (as the Third Applicant in the (MEC’s review) is
granted leave to file a supplementary affidavit and/or
amended notice
of motion in respect of the relief that it seeks, in the (MEC’s
review), in accordance with rule 53(4) of
the Uniform Rules of Court,
once the (Board) files the record called for by the Premier and MEC
in the Notice of Motion in the
(MEC’s review).’
[6]
On 5 February 2015 an
order,
[6]
seemingly
sought with the consent of the parties to the MEC’s review,
Afrisun and the Forum, was granted paragraph 6 of that
order
recording that:
‘
Afrisun
[7]
(Pty)
Ltd t/a Sibaya Casino and Entertainment Kingdom and the Peoples Forum
against Bingo Terminals are hereby granted leave to
intervene
[8]
without
prejudice to any party to raise any arguments in this respect (Case
No’s 1472/2015 and 1366/2015).’
[9]
[7]
On 19 February 2015 Peermont launched an application seeking leave to
intervene in the MEC’s review as a party, as it
too wishes to
review the impugned decision. The relief claimed in its Notice of
Motion was as follows:
‘
1.
Condoning the applicant’s non-compliance with the time periods
provided for in Rule 6 of the Uniform Rules of Court;
2.
Granting the applicant leave to intervene as the fifth applicant in
the main application issued under case number 1366/15, and
in those
proceedings, granting the applicant an order in the following terms:
2.1
Exempting the applicant from the requirement that it exhaust internal
remedies;
2.2
Reviewing, setting aside and declaring invalid the first respondent’s
decision of 16 January 2015, recorded as Resolution
BD0115.11
on pp 50-54 of the court papers;
2.3
Granting costs, jointly and severally, against all the respondents
that oppose the relief sought in 2.1 and 2.2 above;
3.
Directing that the affidavit filed in support of this application
will serve as the applicant’s founding affidavit in the
main
application;
4.
Ordering that any respondent that opposes this intervention
application shall pay the costs thereof and, in the event that there
is no opposition, that costs be costs in the cause;
5.
Granting such further and/or alternative relief as the court may deem
just.’
Peermont’s
founding affidavit in its intervention application setting out the
basis on which it claimed to be entitled to
intervene for the
aforesaid relief, was stated to also ‘double as its founding
affidavit for its own review in the event
that it was admitted’.
That application to intervene remains pending. To date no court order
has been granted giving leave
to Peermont to intervene.
[8]
On 28 April 2015 an order was granted
[10]
in
the MEC’s review, the relevant parts provide that
‘
1
The –
1.1
Intervention applications of the [Forum
[11]
]
and [Peermont
[12]
] and the
objections to the [Afrisun
[13]
]
intervention in case number 1366/2015; and
1.2
…
1.3
The joinder application launched by [Afrisun] in case number
1366/2015;
1.4
…
are
postponed for hearing to a date to be arranged by the Registrar.’
[9]
On 18 November 2016 a notice of withdrawal of the MEC’s review
was filed on behalf of the Premier and the MEC. The notice
recorded
an agreement regarding costs in respect of some of the respondents to
that application, but not in respect of others,
which would inter
alia include Peermont in respect of its pending application to
intervene, and Afrisun. The notice of withdrawal
prompted an
objection from Afrisun. Afrisun disputed the validity of such
withdrawal in correspondence. When that did not elicit
a satisfactory
response its correspondence was followed by a rule 30(2)(b) notice on
29 November 2016 affording the Premier and
MEC ‘an opportunity
of removing the cause of complaint.’
[10]
On 8 December 2016 Peermont brought a review (‘the Peermont
review’) for relief, in some respects similar to that
in the
MEC’s review and the Afrisun review insofar as they also attack
the validity of the impugned decision, citing inter
alia the Galaxy
parties as respondents
[14]
under
the present case number (14006/16P), seeking an order:
‘
1.
Condoning [Peermont’s] non-compliance with the time periods
provided for in section 7(1) of
Promotion of Administrative Justice
Act 3 of 2000
and, to the extent necessary, exempting [Peermont] from
the requirement that it exhaust internal remedies;
2.
Reviewing, setting aside and declaring invalid the second
respondent’s [the MEC’s] decision of 16 January 2015,
recorded in resolution BD0115.11 (as appears in annexure DLP28 to the
founding affidavit) (”the impugned decision”);
3.
Granting costs, jointly and severally, against all the respondents
that oppose any of the relief sought in prayers 1 and 2 above;
and
4.
Granting such further and/or alternative relief as the Court may deem
just.’
[11]
The motivation for bringing the Peermont review is explained as
follows in the founding affidavit filed in support of that
review:
‘
There
is a dispute between the attorneys acting for the Premier and a
number of the other respondents, on the one hand, and Afrisun,
on the
other, as to whether the purported withdrawal was competent, and
whether it brought an end to the MEC’s review, and
with it the
participation of those parties who had either already been granted
leave to intervene (on a provisional basis), or
whose applications
for leave to intervene (on a provisional basis), or whose
applications for leave to intervene were still to
be heard (like
Peermont), I elaborate on this dispute below. It is this
purported withdrawal of the MEC’s review, and
the dispute about
the effect this had on the reviews sought by the intervening parties
to be joined to such review by way of their
intervention as
applicants, that has necessitated this application, as explained
further below’.
[15]
[12]
When the MEC’s notice of withdrawal of her review was not
‘removed’ in accordance with Afrisun’s notice
in
terms of
rule 30(2)(b)
, Afrisun filed an interlocutory application
(‘the Afrisun application’) claiming the following
relief:
[16]
‘
1.
It is declared that the transfer of the administration of the
KwaZulu-Natal Gaming & Betting Act, 8 of 2010, to the Premier
of
KwaZulu-Natal is unconstitutional and invalid, due to the
non-compliance with section 137 of the Constitution of the Republic
of South Africa, 1996;
2.
The transfer of the administration of the Kwa Zulu-Natal Gaming &
Betting Act, 8 of 2010, to the Premier of KwaZulu-Natal,
is
accordingly set aside;
3.
That the decision of the Premier of KwaZulu-Natal, and concurred in
by the MEC for Finance, KwaZulu-Natal, to withdraw the main
application instituted by them dated 30 January 2015, in terms of the
notice of withdrawal referred to in paragraph 5 hereof, is
reviewed
and set aside;
4.
It is declared that such decision is unlawful and invalid;
5.
That the notice of withdrawal filed on behalf of the Premier of
KwaZulu-Natal and the MEC for Finance, KwaZulu-Natal, stamped
by the
Registrar on 18 November 2016 and served on 21 November 2016, be set
aside.
6.
That the notice in terms of Uniform Rule 15(2) dated 30 November
2016, in terms of which notice was given of the substitution
of the
Premier of the Province of KwaZulu-Natal as second applicant in place
of the MEC for Finance, KwaZulu-Natal, delivered on
2 December 2016,
be set aside;
7.
Alternatively to paragraphs 1 to 6 hereof, and in the event that the
above relief is refused and/or it is found that the application
was
validly withdrawn, then an order be granted declaring that:
7.1
the proceedings have not terminated;
7.2
the applicant is entitled to proceed with its review application as
an intervening applicant;
7.3
The applicant is entitled to obtain dates to set down the hearing of
the issues referred to in paragraph 1 of the Court Order
granted by
the Honourable Mr Justice Lopes in the main application, dated 28
April 2015;
8.
That the first and second applicants (in the main application) viz.
the Premier of the Province of the KwaZulu-Natal and the
MEC for
Finance, KwaZulu-Natal, and any other party who opposes this
application pay the costs of this application jointly and
severally,
the one paying the other to be absolved, such costs to include those
consequent upon the employment of two counsel;
9.
Costs of suit; and
10.
Granting such further and/or alternative relief as the court may deem
fit.’
Peermont’s
attitude to that Afrisun application has been stated to be that
‘Peermont will abide the outcome.’
[13]
Peermont’s attitude to the above developments is described as
follows by the deponent to the founding affidavit on behalf
of the
Galaxy parties in the present application:
’
26
As mentioned, Peermont’s review application was brought before
Afrisun applied to Court to set aside the Premier’s
and MEC’s
notice of withdrawal, alternatively to obtain an order declaring that
the proceedings in case number 1366/15 had
not terminated. That
application was however anticipated in Peermont’s founding
affidavit, with Mr Petzer
inter
alia
stating the following at paragraph 47 thereof:
“
Peermont
assumes that the Rule 30 Notice filed by Afrisun will spawn an
application in the MEC’s review, with the MEC and
Premier
adopting the attitude that the proceedings have been withdrawn.
Peermont will abide the outcome of any such application,
and
any decision, in the MEC’s review, on the dispute about the
status of the reviews sought by the various intervening parties
to be
advanced through their intervention.”
27.
Mr Petzer then also added the following in paragraphs 48 and 49 of
Peermont’s founding affidavit [bold emphasis added]:
“
48.
I
am advised and respectfully submit that the position is as follows:
either Peermont’s review grounds fall to be considered
and
determined in the pending application in which Peermont sought leave
to intervene in order to raise those grounds (the MEC’s
review), or they are to be considered in an independent review
application.
In
substance, it makes no difference. …
Whether
Peermont’s review is ultimately determined as this independent
review or as an appendage to the shell of the MEC’s
review
should make no difference at all in substance.
“
49.
Once the Premier and MEC purported to withdraw the MEC’s review
and adopted the attitude that such act by itself brought
an end to
Peermont’s own review that it was seeking to prosecute by way
of intervention, it was obviously prudent and appropriate
for
Peermont to launch this application that could serve as its
‘secession’ from the MEC’s review
depending
on the outcome of the dispute between Afrisun and the MEC and
Premier.
”
28.
Peermont’s review application was thus brought in order for
Peermont to protect its position in the event that the MEC’s
review did not go ahead, and that the issues raised in Peermont’s
review application could accordingly not be ventilated
under case
number 1366/15, as Peermont initially envisaged.’
(my
emphasis)
The
Contentions of the Galaxy Parties
[14]
The Galaxy parties contend that the Peermont review falls to be
stayed in terms of the principle of
lis
alibi pendens
.
The issue is whether that submission is well-founded.
[17]
[15]
They submit that
‘
In
the light of the facts set out above, there is:
(i)
pending litigation (namely, the MEC’s review, including the
review application brought by Peermont under that case number,
[18]
(ii)
between the same parties (namely Peermont, the Board, Galaxy,
Goldrush, Poppy Ice and Bingo Royale),
(iii)
based on the same cause of action (namely, an administration review
of the impugned decision based on the review grounds repeated
in
paragraph 6 of Peermont’s founding affidavit), and
(iv)
in respect of the same subject matter.’
[19]
[16]
As regards the submission of the Galaxy parties quoted in paragraph
15(i) above, referring to ‘the review application
brought
by Peermont under that case number’; being case number
1366/15,
there is as yet no review by Peermont
[20]
under
that ‘case number’. What there is at present is an
application by Peermont for leave to intervene in order that
it may
thereafter, once leave is granted, pursue a review. But there is as
yet no review pending at the instance of Peermont under
that case
number. The notice of motion in the present stay application also
does not refer to the Peermont application under case
no 1366/15, but
to the ‘application brought by Afrisun (Pty) Ltd t/a Sibaya
Casino & Entertainment Kingdom in case number
1366/2015’
which is either the Afrisun review in which Afrisun as an applicant
in case number 1366/15 seeks leave to intervene
to review the
impugned decision, alternatively it has already been granted such
leave (depending on an interpretation of the court
order granted on 5
February 2015), ‘in the event of a ruling that those
proceedings may continue, the final determination
of the review
proceedings under case number 1366/2015’ which refers either to
the MEC’s review or the Afrisun review.
[17]
This has unfortunately caused confusion. In what follows I shall
endeavour to consider the legal position
viz-a-viz
the MEC’s review, the Afrisun review, and the ‘review’
by Peermont under case number 1366/2015.
[18]
They contend that it does not appear to be disputed that the review
applications
[21]
concern
the same parties, the same cause of action (namely, an administrative
review of a decision of the Board) and the same subject
matter (the
review grounds being largely similar).
[22]
Peermont’s
Contentions
[19]
As regards Peermont’s contentions:
(a)
Its main ground of opposition to the stay application is directed at
the first requirement for a defence of
lis
alibi pendens –
namely,
that there be pending litigation with those characteristics between
the same parties.
[23]
(b)
Peermont’s answering affidavit further also contains a
contention that the Galaxy parties have waived their right to contend
that the first review is still pending.
[24]
However,
as pointed out in reply, the waiver argument
[25]
would
not be sustainable either factually or legally, as the threshold for
a successful waiver argument would not be met. I agree
with those
sentiments. I shall accordingly not consider the waiver argument
further in this judgment, particularly also as the
application falls
to be dismissed for other reasons.
(c) Finally, Peermont has
argued that even if
lis alibi pendens
finds application, this
court should, in the exercise of its discretion, in any event refuse
to stay the Peermont review.
The
Relevant Legal Principles
[20]
The legal basis for the application is
lis
alibi pendens
,
[26]
specifically
that the Peermont review should be stayed as the
lis
which it raises is one already pending. The same
lis
already pending can only be that in the MEC review, or possibly the
Afrisun review, depending on the view one takes of the effect
of the
order granted on 5 February 2015, or possibly the review by Peermont
foreshadowed in its application to intervene.
[27]
The
deponent to the founding affidavit articulates the objective of the
application as obtaining a stay of the Peermont review ‘at
least until the fate of the impugned decision under …the MEC’s
review …and thus, too, the status of the pending
application
by Peermont to intervene in that matter and itself review the
impugned decision – has been determined’.
He continues
that ‘in terms of the principle of
lis
alibi pendens
,
the [Peermont] review falls to be stayed pending a decision as to
whether the MEC’s review will proceed, and, if it does,
the
final determination of that review’. I shall in this judgment
proceed on the basis that the latter is what is sought
to be
achieved.
[21]
The requirements for the dilatory defence of
lis alibi pendens
briefly stated are:
(a)
a similar suit between the same parties;
(b)
concerning the same thing and founded on the same cause of
action.
[28]
The
defence is ‘based on the proposition that the dispute (
lis
)
between the parties is being litigated elsewhere’ and that it
is therefore ‘inappropriate for it to be litigated in
the court
in which the plea is raised.’
[29]
The
Requirements of a ‘Similar Suite between the Same Parties’
Peermont’s
standing in the MEC’s application
[22]
Peermont has not been granted leave to intervene in the MEC’s
application. It is accordingly not a party to any suit
in that
application. Whatever conclusion is reached in that application,
absent the prior joinder of Peermont as a party thereto,
will not be
res judicata against Peermont. That is fatal to the present
application as the requirement of a suit between the same
parties is
not satisfied.
[23]
The Galaxy parties have submitted the interpretation in the preceding
paragraph would be unduly technical and frustrate the
underlying
purpose to a plea of
lis
alibi pendens
,
namely to avoid a multiplicity of legal proceedings with the
attendant costs being incurred running in parallel prior to a
definitive
judgment being given in one. Mr Pillemer SC (with him Mr
Farlam SC) submitted that the mere application by Peermont to
intervene
in the MEC’s application to review the impugned
decision (even prior to any order that it actually be granted leave
to intervene),
constitutes the pending proceedings which should
result in the Peermont review being stayed.
[24]
I am not persuaded that this is so. Peermont is not a party to a
review under the case number in which the MEC’s review
is being
pursued. It will only be a party to a review of the impugned decision
under that case number once it is granted leave
to intervene. If
Peermont is refused leave to intervene in the MEC’s application
for whatever reason (either on the merits
of its the intervention
application, or because the MEC’s review has been withdrawn
legitimately and it therefore is no more)
then the Peermont review
would have been stayed ‘…until the finalisation of the
application brought by Afrisun (Pty)
Ltd t/a Sibaya Casino &
Entertainment Kingdom in case number 1366/2015’ which itself
contemplates a possible review at
Afrisun’s instance in the
alternative, without Peermont being able to participate therein and
advance its own arguments (albeit
that any decision reached on the
Afrisun review will in the absence of Peermont being granted leave to
intervene not be res judicata
against it). If the review contemplated
to be pursued by Afrisun in those circumstances was to fail, then
similar proceedings would
have to be pursued afresh by Peermont to
determine its prospects of success in achieving the result Afrisun
was desirous of but
unable to achieve, with attendant delays and
costs. A similar result would follow ‘… in the event of
a ruling that
those proceedings may continue’ and the Peermont
review be stayed until ‘…the final determination of the
review
proceedings under case number 1366/2015.’
[25]
It might be argued that it is unlikely that Peermont will not be
granted leave to intervene in the MEC’s review (which
will
depend on whether those proceedings will indeed continue, an issue to
which I shall return below), or at least that Peermont
will be
granted leave to intervene and will thus become a party to the
litigation pursued under that case number in which Afrisun
seeks
leave to intervene (which has apparently been permitted on a without
prejudice contingent basis) and hence the Afrisun review,
if the
latter is included in the part of the order referring to ‘those
proceedings … proceeding’. I cannot however
express a
view on the likelihood or probability of the MEC’s review not
proceeding, in the absence of hearing all the parties
to that issue,
notably the MEC and the Premier who have not been cited by the Galaxy
parties as parties to the present stay application.
[26]
The defence of
lis
alibi pendens
is a
technical defence but the effect thereof is to interfere with a
litigant’s right to have his dispute heard expeditiously
by a
competent court. An interpretation which will promote that right
rather than impede it in any way, should be favoured.
[27]
Peermont is not a party to the MEC’s review. The fact that it
has an application to intervene which is pending in the
MEC’s
review does not make it a party to a similar suit between the parties
in the Peermont review. Until leave to intervene
is granted by a
court, the proposed intervenor is not ‘clothed with the same
rights as the other parties’
[30]
and
is not a party to the application in which it seeks to intervene.
[31]
[28]
The present stay application accordingly falls to be dismissed.
[29]
In the light of my aforesaid conclusion it is unnecessary for me to
consider the other arguments raised in detail. I accordingly
refrain
from doing so, save to comment briefly on certain aspects thereof.
The
effect of the withdrawal of the MEC’s review by the Premier and
MEC
[30]
Apart from disputing that there is pending litigation to which it is
or has been allowed as a party, Peermont maintains that
there is no
pending litigation for a review certainly at the MEC’s
instance, because it contends that the overarching proceedings
within
which its launched proceedings to intervene to pursue a review once
admitted as a party to the MEC’s review, had been
withdrawn by
the Premier and the MEC. It argues that, even though the withdrawal
of the application within which a review to be
pursued by it once
leave to intervene is granted is contested, and is the subject of an
interlocutory application in which it is
contended that the
withdrawal was an irregular step, the withdrawal decision by the
Premier and MEC is one which must be regarded
as extant and binding
unless it has been set aside by a competent court.
[31]
Peermont specifically further argues that it is uncontroversial that
a matter is
not
lis
alibi pendens
where the other litigation has been withdrawn
[32]
–
even
where the payment of costs remains outstanding.
[33]
It
refers in that regard to a judgment of Lopes J that:
‘
Where
actions have been withdrawn, but the costs still not paid, that does
not provide a basis for the
lis
pendens
defence. In
RSA
Faktors
Bpk
v
Bloemfontein
Township
Developers
(
Edms
)
Bpk
en
andere
1981 (2) SA 141
(O) the court reiterated that a defence of
lis
pendens
rests upon the existence of a pending earlier action and depends on
the actual existence of the other action. The payment of costs
is not
regarded as part of the action in law and the costs procedure does
not form part of the original action between the parties.’
[34]
[32]
The Galaxy parties
contend that Peermont’s allegations in this respect are not
supported by the position which it has adopted
in its 2016 review or
with the indisputable facts and that Peermont’s argument
regarding the binding force of the Premier
and MEC’s decision
to withdraw their 2015 proceedings (brought under case no. 1366/15)
is also legally unsustainable.
[33]
The debate as to the status of the MEC’s review in the light of
the notice of withdrawal filed in respect thereof is
an interesting
and controversial one. I do not intend summarising the arguments
advanced in respect thereof. As indicated earlier
I cannot entertain
any debate in respect thereof in the absence of the Premier and MEC
being parties or seeking leave to intervene
and being joined in these
proceedings, or at least being heard. If I am wrong in that regard
and should there ordinarily be no
legal impediment to decide whether
the MEC’s withdrawal of her review is valid or not, and as to
what might have continued
in its place, in this stay application,
then I nevertheless consider it highly undesirable to do so and would
exercise my discretion
against entertaining any debate on these
issues in the absence of the Premier and MEC first being heard.
Although no express relief
is sought in regard to the validity of the
withdrawal of the MEC’s review in the notice of motion in this
stay application,
any decision as to its validity or otherwise as a
preliminary finding to any of the relief claimed in the present
application,
where that is a live issue in other proceedings, should
be avoided. It could result in conflicting findings being reached by
this
court.
The
Afrisun review
[34]
The exact status as to whether there is at present a review pending
under case number 1366/2015 by Afrisun as a duly admitted
party to
that litigation, also is uncertain. It appears to be dependent upon
the interpretation of the order of 5 February 2015
which
granted
‘. . . leave to intervene without prejudice to any party to
raise any arguments in this respect (under case no’s
1472/2015
and 1366/2015).’
[35]
It is not necessary to resolve that issue of interpretation in this
stay application as the Galaxy parties do not rely
[35]
in
their founding affidavit on the Afrisun review as pending litigation
which would justify the Peermont application being stayed.
If not so
confined, then to the extent that the notice of motion might include
the Afrisun review as the basis for the stay of
the Peermont review,
it is not clear and certain that there presently is a pending review
by Afrisun under case number 1366/2015,
but even if there is,
Peermont is not yet admitted as a party to the proceedings under case
number 1366/2015. However even if I
am wrong in that regard, and the
application by Peermont to intervene was to be viewed as a
lis
by it to any review under case number 1366/2015,
[36]
then
I am in any event of the view that I should exercise my discretion
against staying the Peermont review.
The Discretion not to
Stay Proceedings
[36]
Peermont also argued in the alternative that even if this Court was
to find that the Peermont application is
lis
alibi pendens
,
it enjoys a discretion not to stay the Peermont application, based on
what is just and equitable in the circumstances of the case
and on
‘considerations of fairness and convenience’.
[37]
[37]
In the light of my conclusion that it is not an instance of
lis
alibi pendens
, it
is not necessary to consider this argument in any great detail. I
however refer to it briefly in the event of my main conclusion
regarding
lis alibi
pendens
being
incorrect, as I am disposed in the exercise of my discretion, and
assuming I erred in concluding that it is not an instance
of
lis
alibi pendens
, to
have refused the stay of the proceedings.
[38]
The present would be an appropriate instance for the exercise of such
discretion because it would not be just and equitable
to stay the
Peermont application, and further that the balance of convenience
does not favour such an order, because:
38.1 If the MEC's review
is indeed found to have terminated and the intervening parties are
not entitled to take conduct of that
matter, the only sensible course
that had remained for Peermont was to have launched the Peermont
application. It should not be
criticised for doing so, particularly
as the approach Peermont has adopted flowed from the Premier and
MEC’s purported withdrawal
of the MEC’s review, and at
times the Galaxy parties' insistence that the MEC's review had
terminated.
38.2 The Peermont review
of the impugned decision could achieve the resolution of that matter
far more expeditiously than the revival
(which might be open to some
doubt) and then prosecution of the MEC's review, or its non-revival
and the review contemplated in
the Afrisun application. The MEC's
review, having been withdrawn, can probably only proceed if the
Afrisun application to set aside
the withdrawal of the MEC’s
review is successful. In that eventuality, a plethora of
interlocutory matters remain which will
first have to be resolved
before the review can proceed. The review is thus unlikely to proceed
in the foreseeable future, whereas
the Peermont application is
unencumbered by these obstacles and hence capable of more speedy
resolution.
38.3 The expeditious
consideration of the validity of the impugned decision would benefit
all parties, who have been waiting for
this matter to be considered
and resolved for more than three years, which would also be in the
general best interest of the administration
of justice.
38.4
Peermont does not seek to predetermine the issues in the Afrisun
application. Peermont’s argument proceeds on the assumption
(rightly or wrongly) that the MEC’s review has been withdrawn,
and does not concern itself with the validity or lawfulness
of that
decision. It holds no implications for the Afrisun application and
review and none of the parties to the Afrisun application
would be
prejudiced in a manner which cannot be compensated by an appropriate
order as to costs if the Peermont review was to proceed.
Should the
MEC review be revived, or the Afrisun review proceed in the meantime,
then it could simply be heard together with the
Peermont
application.
[38]
Costs
[39]
Both parties have employed two counsel
[39]
and
have asked for the costs of two counsel if their contentions are
vindicated. The matter is obviously of importance to the parties.
It
is also somewhat novel. In the exercise of my discretion on costs I
am disposed to acceding to their requests and allowing the
costs of
two counsel where so employed.
Order
[40]
The application is dismissed with costs, to include the costs of two
counsel where so employed.
______________________
KOEN
J
APPEARANCES
FOR
APPLICANT:
M
Pillemer S C with P B J Farlam S C
Applicant’s
attorneys:
Edward
Nathan Sonnebergs
C/o
Tatham Wilkes Inc.
Tel.:
033 345-3501
Ref.:
Mr H Drummond/Gisela/03A1349/16
FOR
FIRST RESPONDENT:
F
A Snyckers S C
First
Respondent’s attorneys:
Webber
Wentzel
C/o
Viv Greene
Attorneys
Tel.:
033 342 2766
Cell:
083 613 0487
Ref.:
S H Warber
[1]
At times
hereinafter referred to as ‘the stay application’.
[2]
Paragraphs
1 to 3 of the notice of application.
[3]
The names
of the various parties shall be used in this judgment rather than
referring to them with the usual nomenclature of ‘applicant’
or ‘respondent’ to avoid confusion arising from their
contrasting citations in the various litigation between them.
The
Board is in fact cited with reference to its chairperson.
[4]
The further
details of the decision are irrelevant to this application.
[5]
The
respondents in that review are the Board, nine members of the Board,
Galaxy, eight companies in the Gold Rush group (who are
also
respondents in the present application), the fourth Respondent
(‘Poppy Ice (Pty) Ltd), and Bingo Royale.
[6]
Per Vahed
J.
[7]
Although
the designation of ‘KZN’ was omitted from the name in
the court order, the reference appears to be to Afrisun
as described
in this judgment. No other similar entity has featured in the
litigation.
[8]
In the
founding affidavit the deponent shuns any notion that they have been
admitted as applicants in the MEC/s review, even ‘provisionally’
(whatever that may mean) although they were referred to in some
documents in the MEC’s review as third and fourth applicants.
[9]
Whatever
the exact import of that order may be, and whether it actually
permitted Afrisun and the Forum as parties to the MEC’s
review
even if only for expediency, it did not include Peermont.
[10]
Per Lopes
J.
[11]
Described
as the Fourth applicant.
[12]
Described
as the ‘Fifth Applicant’ although it had not been
granted leave to intervene?
[13]
Described
as the Third Applicant.
[14]
The First
to Seventh Applicants herein (collectively referred to as ‘Galaxy’)
have been cited as respondents in both
applications. In some
instances they may have been misnamed. Nothing however turns on this
for the purpose of this judgment as
the corporate entities, even if
misnamed; appear to be accepted by the Applicants as duly joined.
[15]
The
reasoning behind the bringing of Peermont’s review application
was repeated
verbatim
in paragraph 10 of Peermont’s founding affidavit in this
application.
[16]
The relief
in paragraphs 3, 4, 5 and 7 of the Notice of Motion is particularly
apposite to this application.
[17]
Reference
is also made in the founding affidavit filed by the Galaxy parties
to points of view expressed in correspondence between
the attorneys
of the Galaxy parties and Peermont. I do not deal with those as they
are expressions of opinion and do not influence
my decision on the
legal position.
18
Case number 1366/15.
[19]
Para 29 of
the founding affidavit.
[20]
In certain
papers Peermont has been referred to as the ‘Fifth Applicant’,
but no order to that effect has been granted.
[21]
They in
fact refer to the review by Peermont, but as indicated above
the
application by Peermont for leave to intervene in the MEC’s
review to thereafter allow it to pursue a review, if leave
is
granted to Peermont to intervene in case number 1366/2015, and then
the Peermont review under case number case number 14006/16P.
[22]
As regards the requirements of a defence of
lis
alibi pendens
, see e.g.
Williams
v Shub
1976
(4) SA 567
(C) at 570C;
Belmont
House (Pty) Ltd v Gore and another NNO
2011 (6) SA 173
(WCC) para 9;
Socratous
v Grindstone Investments 134 (Pty) Ltd
2011 (6) SA 325
(SCA) para 13.
[23]
Record at 142-145, paras 23 – 31.
[24]
See e.g.
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA) para 19 (the
onus
of proving waiver rests on the party alleging it and clear proof is
required of an intention to do so; moreover, where waiver
is to be
inferred from conduct, that conduct must be unequivocal, i.e.
consistent with no other hypothesis than an intention
to waive) and
Alfred
McAlpine & Son v Transvaal Provincial Administration
1977 (4) SA 310
(T) at 324C–D (in considering whether the onus
of establishing waiver by conduct has been discharged, a court will
take
cognisance of the fact that persons do not as a rule lightly
abandon their rights); as well as
Le
Roux v Odendaal and others
1954 (4) SA 432
(N) at 441D–E, where the Court endorsed the
statement in
Kannemeyer
v Gloriosa
1953 (1) SA 580
(W) at 585H – 586A that ‘the Court must
take into account the unlikelihood, the strong improbability, that a
man
will lightly waive a right conferred upon him by law’.
[25]
Which was
pursued fairly faintly and tentatively.
[26]
As a
defense, the exception
litis
pendentis
.
[27]
I
n
its heads of argument Peermont view the essence of the application
as
an
application, brought by the Galaxy parties, an unrelated third
party, that the Afrisun review
might
,
at some uncertain future date, revive the MEC review which Peermont
considers as withdrawn, which if that was to happen, would
give rise
to the same substance and issues as the MEC’s application.
Peermont point to Galaxy in its affidavit
not
alleging that the MEC's review remains live and extant, but only
that the Afrisun review ‘could potentially’ revive
those
proceedings. Peermont draws attention to a conflicting position
being adopted in the Heads of argument of Galaxy where
they argue
that the Afrisun review is ‘an interlocutory application’
in the MEC’s review and that, if it succeeds
‘either all
the proceedings in the [MEC’s review] will remain alive or
Afrisun will be permitted to persist with
its own review’ and
that in either event, the essence of the Peermont review will be
determined. In my view the application
is one for the Peermont to be
stayed, pending a decision as to whether the MEC’s review will
proceed, and, if it does,
the final determination of that review.
[28]
Voet
44.2.7;
Westphal
v Schlemmer
1925 SWA 127. H Daniels
Becks
Theory & Principles of Pleading in Civil Actions
6 ed (2002) at 157.
[29]
Caesarstone
Sdot-Yam
Ltd
v
The
World
of
Marble
and
Granite
2000
CC
and
others
[2013]
4
All
SA
509
(SCA)
para 2.
[30]
Garment Workers' Union v
Minister of Labour and others
1945 WLD 181
at 184 – 185.
[31]
See also
Firstrand Bank Ltd
v Wallace Pienaar Properties CC
(Absa Bank Ltd intervening)
2002 (2) SA 758
(W) at 760I - 761H.
[32]
Partridge v Blake
(1894) 4 CTR 280;
Nedbank
Limited v Sekgala
2015 JDR
1976 (GP) paras 14 – 17; AC Cilliers
et
al
"Temporary Stay of
Proceedings" in
Herbstein
and Van Winsen: Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa
5ed, 2009 ch10-p310. Cf.
Ntshiqa
v Andreas Supermarket (Pty) Ltd
1997 (1) SA 184
(TkS).
Ntshiqa
,
however, distinguishable from the present case as the withdrawal was
‘brought subsequent to the institution of the …
application and only after the respondent had raised the defence of
lis pendens
’
(at 191E–F); and the withdrawal, although it was dated at an
earlier date, was ‘an annexure to the replying
affidavit’
(at 191H–I) and ‘[appeared] to have come to the
respondent's notice when the replying affidavit
was served a few
days before the matter was argued’ (at 191H–I), meaning
that the respondent had ‘not had an
opportunity to address the
question of the withdrawal’ (at 191I–J).
[33]
RSA Faktors Bpk v
Bloemfontein Township Developers (Edms) Bpk en andere
1981 (2) SA 141
(O) at 144G – 145C.
[34]
Body Corporate of Valence
House (SS: 183/1992) v Malani NO and others
[2015] JOL 33407
(KZD) para 7(c) at 10.
[35]
See para 14
or 15 above of this judgment and para 29 of the founding affidavit.
[36]
Which would
be either the MEC’s review if it continues, or the Afrisun
review.
[37]
Caesarstone
n28 paras 34 and 36. See also
Kempster
Sedgwick (Pty) Ltd v Rajah
1959 (1) SA 314
(N) at 317A–D; and
Loader
v Dursot Bros (Pty) Ltd
1948 (3) SA 136
(T) at 138 – 139.
[38]
To which
Afrisun is in any event a party being the twentieth respondent.
[39]
Peermont’s
heads of argument were signed by Mr Snyckers SC and Ms Goodman.
However only Mr Snyckers appeared at the hearing.