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[2016] ZAGPPHC 681
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Sibande v Director General Department of Mineral Resources and Others (9073/16) [2016] ZAGPPHC 681 (8 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG,
PRETORIA
CASE
NO: 9073/16
8/8/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
HLABATHI
SAMSON
SIBANDE Applicant
And
DIRECTOR
GENERAL:
DEPARTMENT
OF MINERAL RESOURCES 1
st
Respondent
DEPUTY
DIRECTOR GENERAL:
MINERAL
REGULATION 2
nd
Respondent
REGIONAL
MANAGER: MPUMALANGA
DEPARTMENT
OF MINERAL RESOURCES 3
rd
Respondent
MINISTER
OF MINERAL
RESOURCES 4
th
Respondent
COUSINS
COAL CO (PTY)
LTD 5
th
Respondent
JUDGMENT
KHUMALO
J
2
INTRODUCTION
[1]
This is an application for judicial review in terms of the Promotion
of Administrative Justice Act 3 of 2000
(“PAJA”)
of
decisions relating to the grant of a prospecting right to the 5
th
Respondent, Cousins Coal (Pty) Ltd to prospect coal on the Applicants
property. The matter came before me on 29 June 2016, unopposed.
Due
to the fact that the matter constitutes of voluminous documentation,
5 bundles amounting to +500 pages, I stood it down until
1 July 2016
for proper consideration. By the 1 July 2016 I had not finalised the
matter and had to extend the period until further
notice to the
Applicant.
[2]
On the previous occasion when the matter was set down and heard by
Molopa J, she was not inclined to hear the matter until proper
service has been effected on the 5111 Respondent. On the face of the
new return of service for the notice of set down on 29 June
2016, it
seems service was effected at an address in Polokwane namely, 49
Landres Mare being allegedly the registered address of
the 5
th
Respondent by affixing on the principal door. The sheriff's stated
reason for such service is that the premises remain locked and
nobody
was present on the premises. During the motion hearing I was implored
to accept the service as proper service due to the
fact that the
address is, according to a windeed report ("Company search
report") procured from the CIPRO site dated
2 May 2016 (CKR1),
the registered office of the company. An affidavit substantiating
that fact and other endeavours by the Applicant
to bring the
institution of legal proceedings to the attention of the 5
th
Respondent was also filed.
[3]
During perusal of the documentation I noticed that there is a Company
search report marked as Annexure “CKR 8" starting
on page
540 to 544. On page 540 it indicates that the company's registered
address was changed on 2 July 1998 from the abovementioned
address in
Landres Mare, Polokwane to 4th Floor Oliesade Building, 526 Vermeulen
Street, Arcadia. A further change of the registered
address took
place on 28 May 2009, to 1 Konstabel Street, Groblersdal. The new
registered address change as on 28 May 2009 was
noted again on 10
April 2013. The recorded activities on the report end on 18 November
2015 with the address remaining 1 Konstabel
Street, Groblersdal.
[4]
Proper service should therefore have been effected at 1 Konstabel
Street, Groblersdal.
[5]
The 5th Respondent has a direct and substantial interest in the
matter. It is a cornerstone of our legal system that a person
is
entitled to notice of legal proceedings against such person, or if he
is to be adversely affected by the order or decision to
be taken by
the court in such proceedings. See
Steinberg v Cosmopolitan
National Bank of Chicago
1973 93) SA 885
(RA) 892C. If
proceedings have started without due notice to the Defendant, the
subsequent proceedings are null and void, and any
judgment would be
of no force and effect against such a person and may be disregarded
without the necessity of a formal order setting
it aside. In an
action mere knowledge of issue of a summons does not constitute
service and cannot relieve a Plaintiff from the
obligation to follow
the prescribed rules; see
First National Bank of
S
A Ltd v
Ganyesa Bottle Store
1998 (4) SA 565
N at 568 B-C.
[6]
The Applicant is ordered to effect proper service upon the 5th
Respondent at its registered address as updated on the Company
search
report or at a place proven to be its principal place of business.
___________________________
N
V KHUMALO
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
FOR
THE APPLICANT
: ADV
S COWEN
PRETORIUS
INSTRUCTED
BY
: A WOLMARANS INC
Tel
No: 011 - 781 6050