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[2017] ZALMPPHC 42
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142 On South Management Company (Pty) Ltd v Britz t/a Nelis Britz Attorneys and Conveyancers and Others (6672/2017) [2017] ZALMPPHC 42 (15 November 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 6672 / 2017
In
the matter between:
142
ON SOUTH MANAGEMENT COMPANY (PTY)
LTD
APPLICANT
and
CORNELIS
BRITZ t/a NELIS BRITZ ATTORNEYS &
CONVEYENCERS
1
ST
RESPONDENT
THE
REGISTRAR OF
DEEDS
2
ND
RESPONDENT
POLOKWANE
KOPANO PROPERTIES (PTY) LTD
REG
NO:
2005/024409/07
3
RD
RESPONDENT
AFRICAN
OUTDOORSMAN (PTY) LTD
Formerly
known as ARROW CREEK 82 (PTY) LTD
REG
NO:
2007/00357/07
1
ST
INTERVENING PARTY
MAVAVA
TRADING 262 (PTY) LTD
REG
NO:
2006/039049/07
2
ND
INTERVENING PARTY
JUDGMENT
SIKHWARI
AJ
[1]
This matter came for the first time by way of an
ex
parte
application
on 27 September 2017 without prior service of launching papers to the
respondents. Justice MG Phatudi J made the following
order:
1. The forms and
service provided for in terms of the Rules is dispensed with and that
the matter may be dealt with as one of urgency
in accordance with the
provisions of Rule 6(12) of the Uniform Rules of Court.
2.
A Rule nisi is granted with immediate effect in the following terms:
2.1.
Interdicting and restraining the first respondent from proceeding
with the opening of the township register and registration
of the
General Plan on Portion 435 of the Farm Sterkloop 688 Registration
Division LS.
2.2.
Interdicting and restraining the second respondent from opening of
the township register and registration of the General Plan
on Portion
435 of the Farm Sterkloop 688 Registration Division LS.
2.3.
Directing the first and second respondents to proceed with the
registration of the subdivision of the property situated at
remainder
of Portion 383 (a Portion of Portion 42) of the Farm Sterkloop 688
Registration Division LS.
2.4.
Directing the first and second respondents to proceed with the
simultaneous transfer of the property situated at Portion 434
(a
Portion of Portion 383 of the Farm Sterkloop 688 Registration
Division LS) from the third respondent to the applicant.
2.5.
Directing the first and second respondents to proceed with the
registration of the consolidation of Portions 432, 433 and 434
into
the one farm collectively known as Portion 435 of the Farm Sterkloop
688 Registration LS.
3.
The order stipulated in paragraph 2 shall act as a Rule nisi, calling
upon the respondents to show cause, if any, on 23 November
2017 at
10h00, or as soon thereafter as the matter may be heard, why the said
orders should not be made final.
4.
The first respondent is ordered to pay the costs hereof on an
attorney and client scale de bonis propriis.
5.
The second and third respondents are only ordered to pay the costs in
the event of opposition.
[2]
On the anticipated return date, the first and second intervening
parties (“intervening parties”) brought an application
for leave to intervene in the main application. The application was
opposed by the applicant. I granted the application without
stating
my reasons for doing so. I reserved the issue of costs. I now hand
down my reasons and the decision on costs.
[3]
Intervention is regulated in terms of rule 12 of the uniform rules of
this court. The said rule provides that “
any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make
such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem meet
”.
[4]
Rule 12 was imported to apply in application proceedings by the
provisions of rule 6(14) which state that “
the
provisions of rules 10, 11, 12, 13 and 14 apply to all applications”
.
[5]
It is clear that the applicable test is similar to the test for
joinder of parties in terms of rule 10 of the uniform rules.
The said
test is that the party must have ‘direct and substantial
interest in the subject-matter’.
[5]
The first and second intervening parties have separate contracts with
the applicant. The said contracts are fairly similar.
The said
respective contracts provide that each intervening party shall retain
certain two residential Erven as indicated on respective
General Plan
and the applicant is compelled to transfer the said Erven to the
intervening party after opening of the Township Register
and as soon
as the intervening party has complied with its obligations in terms
of the provisions of clause 15 of the said contracts.
[6]
The intervening parties submitted that that their interest extends to
the immovable properties which form the subject-matter
of the main
application. The transfer has to be completed by no later than 31
December 2017, before the lapse of the development
rights. In a
letter from applicant’s attorneys dated 27 September 2017 to
intervening parties’ attorneys, it was conceded
by the
applicant that the value of the property will be reduced to
R6 000 000.00 if the development rights may lapse.
[7]
This will constitute a loss on the part of the intervening parties.
The interdict and rule
nisi
which was granted herein will make it impossible for the process to
be completed by no later than the 31 December 2017. The financial
and
logistical expenses for re-doing the process will be huge on the part
of the intervening parties.
[8]
The applicant’s contention is that the intervening parties have
no ‘direct and substantial interest in the subject-matter’
on the basis that the rule
nisi
was intended to interdict the first respondent, on his capacity as a
conveyancer, “from proceeding with the opening of the
township
register and registration of General Plan Portion 435 of the Farm
Sterklop 688”.
[9]
The applicant submitted further that the intervening parties are not
parties to the agreement between the applicant and the
first
respondent. The applicant submitted that it is only the owner of the
land who can transfer the land. It is common cause that
the applicant
is the owner of the said land. The applicant conceded that the
interdict and / or rule
nisi
herein may have some impact on the intervening parties but such an
impact will not constitute a legal interest.
[10]
The court has discretion to grant intervention application. The said
discretion has to be exercised judicially. In the case
of
Ex
Parte Moosa: In re Hassim v Harrop-Allin
1974 (4) SA 412
(T)
at
page
416F-G
,
Bliss AJ said that
“…
at
this juncture, the Court must not be overconcerned with the intrinsic
merits of the dispute which can be fully canvassed and
fought out in
the main proceedings.
“
In my
opinion, at the leave to intervene stage, it is sufficient for the
party seeking leave to intervene to rely on allegations
which, if
they can be proved in the main action, would entitle him to succeed…”
[11]
It is trite law that the intervening parties will not be refused
leave to intervene in order to defend their interests merely
because
the court considers that the legal grounds upon which those interests
are assailed are bad, for there is always the possibility
of an
appeal against the court’s judgment
(see
Hersch v Esterhuizen
1946 OPD 370)
.
[12]
In my view, if the opening of the township register does not go
ahead; or rather is interdicted, the intervening parties may
approach
the court to compel same to effected on an application or action
based on determination of the same question of law and
fact which is
substantially the same as herein. The trite test is that the said
question of law and fact must ‘in the main’
or in their
‘principal essentials’ be ‘essentially’ the
same
(see
Dreyer v Tuckers Land and Development Corporation (Pty) Ltd
1981 (1)
SA 1219
(T)
at
page
1224F-1225B).
[13]
The intervening parties have succeeded to prove that they are
entitled to intervene in the main application. Costs should follow
the event. In this case the applicant must pay the costs of the
intervening parties, which costs should include costs of senior
counsel resulting from the employment of two counsel.
[14]
As stated above, the applicant approached the court in terms of rule
6(4)(a) of the uniform rules of this court which regulate
every
application brought
ex
parte
.
An
ex
parte
application is an application which is brought without service of
launching documents to the respondents or affected parties.
[15] Rule 6(4) of the
uniform rules of this court states that”
6(4)(a)
Every application brought ex parte (whether by way of petition or
upon notice to the registrar supported by an affidavit
as aforesaid)
must be filed with the registrar and set down, before noon on the
court day but one preceding the day upon which
it is to be heard. If
brought upon notice to the registrar, such notice must set forth the
form of the order sought, specify the
affidavit filed in support
thereof, request the registrar to place the matter on the roll for
hearing, and be as near as may be
in accordance with Form 2 of the
First Schedule.
(b)
Any person having an interest which may be affected by a decision on
an application being brought ex parte, may deliver notice
of an
application for leave to oppose, supported by an affidavit setting
forth the nature of such interest and the ground upon
which such
person desires to be heard, whereupon the registrar must set such
application down for hearing at the same time as the
initial
application.
(c) At the hearing the
court may grant or dismiss either or both such
applications
as the case may require, or may adjourn the same upon such terms as
to the filing of further affidavits by either applicant
or otherwise
as it deems fit.
[16]
Upon being served with the court order of the 27 September 2017, the
first respondent reacted in terms of rule 6(8) of the
uniform rules
of this court which states that ““
any
person against whom an order is granted
ex
parte
may anticipate the return day upon delivery of no less than
twenty-four hours’ notice
”.
[17]
In anticipating the return day as aforesaid, the first respondent
filed a notice of motion dated and served on the applicant’s
attorney on the 31 October 2017; and setting down the matter for
hearing in terms of rule 6(8) on the 7 November 2017.
[18]
Rule 6(8) only apply where an order has been granted against a person
ex
parte
and where a return day has been fixed. This subrule comes to the aid
of a party who has been taken by surprise by an order granted
ex
parte
.
It does not apply where the return day of an
ex
parte
rule
nisi
was extended in the presence of the affected party.
[19]
Rule 6(8) differs materially with rule 6(12(c) in that the latter
allows a party against whom an order was granted in his absence
in an
urgent application to set the matter down for reconsideration. This
must be a party who was served with launching papers
but for some
reason or another failed to attend court on the date for the hearing
of the urgent relief. The former applies to a
party who was never
served with launching papers
(see
Erasmus, “Superior Court Practice”, 2
nd
Ed, Service 2, 2016, at page D1-81)
.
[20]
It is trite law that
ex
parte
application as envisaged in rule 6(4) is invoked in limited type of
cases such as cases where:
1.
the
applicant is the only person who is interested in the relief which is
being claimed;
2.
the
relief sought is a preliminary step in the proceedings, such as
applications to sue by edictal citation, for substituted service,
to
attach to found or confirm jurisdiction;
3.
the
nature of the relief sought is such that the giving of notice may
defeat the purpose of the application, such as in the Anton
Pillar-type of an order;
4.
immediate
relief, even though it may be temporary in nature, is essential
because harm is imminent.
5.
Certain
kinds of applications are customarily brought
ex
parte
.
In this ground the local practice of various divisions of the high
court differ. Generally, sequestration and winding up applications
are brought
ex
parte
in Kwazulu-Natal and Free State divisions of the high court whereas
they are brought on notice in Gauteng Division unless based
on
nulla
bona
return.
(see
Erasmus, “Superior Court Practice”, 2
nd
Ed, Service 2, 2016, at page D1-60)
.
[21]
Applicant has failed to state the category in which the matter herein
belongs. In my view, the present application does not
fall within any
of the above-stated categories of cases which can be brought
ex
parte
on such extreme urgency that prior service of papers is dispensed
with. On this ground alone, the rule
nisi
and / or court order granted
ex
parte
in favour of the applicant on 27 September 2017 has to be rescinded
and / or dismissed and / or set aside and /or discharged.
[22]
Good faith is a
sine
qua non
in
ex
parte
applications.
In the case of
Cometal-Mometal
SARL v Corlana Enterprise (Pty) Ltd
1981 (2) SA 412
(W)
at
page
414E
,
Margo J formulated three cardinal rules of
ex
parte
applications as follows:
“
(1) in
ex
parte
applications all material facts must be disclosed which might
influence the Court
in coming to a decision.
(2) the
non-disclosure or suppression of facts need not be willful or
mala
fide
to incur the penalty of rescission (
ie
of the order obtained
ex
parte
);
and
(3) the Court,
apprised of the true facts, has a discretion to set aside the former
order or to preserve it.”
[23]
In the case of
Schlesinger
v Schlesinger
1979 (4) SA 342
(W)
at
page
350B
,
Le Roux J stated that
“
it
appears to me that, unless there are very cogent practical reasons
why an order should not be rescinded, the Court will always
frown on
an order obtained ex parte on incomplete information and will set it
aside even if relief could be obtained on a subsequent
application by
the same applicant”.
[24]
When approaching the court on
ex
parte
basis on 27 September 2017, the applicant did not disclose certain
material facts such as the letter of first respondent dated
21
September 2017, resolutions that were signed by Andile Ramaphosa on
behalf of the applicant, applications that were for finance
with
Investec by applicant, services agreement signed by Andile Ramaphosa,
the date of commencement of Andile Ramaphosa, the meeting
with
attorney of the applicant on 28 August 2017, the knowledge of
applicant’s board of directors brought to it by Mr Carstens
as
appearing in annexure “NB10” to the answering affidavit
of the first respondent, applicant’s letter to the
intervening
parties dated 27 September 2017 (the date of the
ex
parte
court order).
[25]
Notwithstanding applicant’s subjective views on the right of
the intervening parties regarding the subject-matter in
this
application, the applicant was fully aware of the intervening
parties’ intention to oppose the urgent application prior
to
approaching the court on
ex
parte
basis on 27 September 2017 but decided not to join them and / or not
to disclose same to the court. On this ground alone, the rule
nisi
obtained
ex
parte
has to be rescinded. The disclosure of the aforesaid information was
material prior to the granting of the
ex
parte
order. It would have influenced the court otherwise.
[26]
The applicant has further written a letter to the intervening parties
dated 13 September 2017 where the applicant indicated
its threat to
take them to court. What is boggling one’s mind is that when
the applicant ultimately decides to go to court,
applicant does not
join the intervening parties nor serve the papers to the cited
respondents. There was no justification whatsoever
for the applicant
to approach the court on
ex
parte
basis whilst applicant was aware of the attitude of the first
respondent and intervening parties towards the intended application.
The applicant has also failed to provide any sound justification.
[25]
In the unreported judgment of the case of
Somnium
Holdings (Pty) Ltd v Vodacom Service Provider (Pty) Ltd & 2
Others, Case No 33399 / 2010, North Gauteng High Court (delivered
on
17 September 2010
),
Tuchten J stated in paragraphs
55,
51
and
52
that:
“
50. I would
add this: in this division, a most pernicious practice has become
prevalent. Counsel frequently moves for rules
nisi
,
without service, which contain far reaching provisions for interim
relief, operative immediately. The grounds on which the applicant
asks the Court to dispense with service are often flimsy at best and
buttressed with the assertion from the bar that what is being
sought
is ‘only a rule
nisi’
,
as if what was being sought was some trivial, formal relief which, if
found to have been incorrectly granted, could easily be
remedied at a
hearing in due course. That is in many cases not so. The present is a
case in point.
“
51. The harm
which was caused to Vodacom may, if Gogga is unable pay what it owes,
be irreversible. This is bad enough but at least
Vodacom, with its
financial power, was able to stay the course and right the wrong that
was done to it or at least limit the damage
done to it. In many
cases, respondents with slender means are faced with a choice of
failing to comply with a Court order or fighting
a long, uphill
battle to reverse the order already made against them. We do not see
the cases that such respondents have to settle
or concede because of
the injustice that denied them affair hearing at the onset. In my
view, the Courts should take condign action
not only against
applicants who violate this most fundamental of the rules of fair
litigation but against the legal representatives
who put them up to
it as well. Lay litigants may not understand the nicer points of the
application of the principle of
audi
alteram partem
to motion proceedings. Their representatives however do or, if they
do not, they are not fit to practice in our Courts.
“
52. In my
judgment, therefore, the urgent application was indeed brought
ex
parte
because no notice had been given to the Vodacom respondents before
the urgent application was heard. It then follows firstly that
no
relief should have been granted at all because Somnium did not make
out a case for coming to Court without notice and secondly,
that
Somnium was guilty of material non-disclosure in relation to its
failure to disclose the December 2007 agreement and the true
inwardness of Hartzenberg’s interaction with Conradie. The
application for reconsideration under Rule 6(8) must succeed.”
[26]
I share the above views expressed by Tuchten J. Same is true to the
application before me and substantial number of other
ex
parte
applications brought in this division on some obscure bases for
urgency. In my view, the applicant’s case must fail. The
court
order of the 27 September 2017 should not have been granted on ex
parte basis at all. Consequently, the rule
nisi
must be discharged. The applicant herein has abused the court
process. The interdict has to be dismissed and the rule nisi be
discharged.
[27]
In the circumstances, I am not persuaded that the applicant has made
a case for the confirmation of the rule
nisi
and / or interim order of the 27 September 2017. The said
ex
parte
order stands to be discharged with costs, including costs resulting
from the employment of two counsel and / or costs of senior
counsel.
[28]
In my view, the costs order in paragraph 4 of the
ex
parte
order of Phatudi J is not an independent or a standalone order. It is
an order which is dependent on the outcome of paragraph 2
of the said
ex
parte
order. This is more so in view of the fact that the said costs order
was granted on
ex
parte
basis without prior service of papers to the first respondent and
also without hearing his version. The said costs order will fall
with
the rule
nisi
and / or interim order of the 27 September 2017.
[29]
Furthermore, the whole order of the 27 September 2017 was granted on
ex
parte
basis. The provisions of rule 6(8) are clear that “
any
person against whom an order is granted
ex
parte
may anticipate the return day upon delivery of no less than
twenty-four hours’ notice
”.
[30]
The first respondent’s notice of motion referred to above dated
31 October 2017 constitute compliance with subrule 6(8).
Consequently, under rule 6(8), this court can interfere with costs
order in the
ex
parte
court order of the 27 September 2017. I intend to do so.
[31]
My above findings bring the matter to finality. I therefore find it
unnecessary to decide the question of applicant’s
authority to
institute the application and merits of the application.
[32]
I accordingly make the following order:
1.
That
the first and second intervening parties are granted leave to
intervene in the application.
2.
That
the applicant is ordered to pay the costs of the first and second
intervening parties in the intervention application, such
costs to
include costs occasioned by the employment of two counsel where one
is a senior counsel.
3.
That
the court order and rule
nisi
granted on the 27
September
2017 is discharged.
4.
The
application for interdict is dismissed.
5.
That
the applicant is ordered to pay costs of the first respondent as well
as of the first and second intervening parties in the
main
application, such costs to include costs for the employment of two
counsel where one is a senior counsel.
_________________________
MS
SIKHWARI AJ
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For Applicant : Adv MM
Oosthuizen SC
:
Adv Y Rust
Instructed by : Espag
Magwai Attorneys
For 1
st
Respondent : Adv R Du Plessis SC
Instructed by : Du
Toit, Swanepoel, Steyn & Spruyt Att
For Intervening
Parties : Adv F Botes SC
Instructed by : AJ
Stone Attorneys
c/o De Bruin
Oberrholzer Inc
Date of Hearing : 7
November 2017
Date of Judgment : 15
November 2017