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[2016] ZAGPPHC 1099
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Carpe Diem Explorations (Pty) Limited v Kasimira Trading 82 (Pty) Limited and Others (A601/14) [2016] ZAGPPHC 1099 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A601/14
14/12/2016
In
the matter between:
CARPE
DIEM EXPLORATIONS (PTY)
LIMITED
Appellant
and
KASIMIRA
TRADING 82 (PTY)
LIMITED
First
Respondent
MINISTER
OF MINERAL
RESOURCES
Second
Respondent
DEPUTY
DIRECTOR-GENERAL
DEPARTMENT
OF MINERAL RESOURCES
Third
Respondent
REGIONAL
MANAGER
DEPARTMENT
OF MINERAL RESOURCES
Fourth
Respondent
JUDGMENT
Tuchten
J:
1.
The dispute between the appellant (Carpe) and the first respondent
(Kasimira) relates to the rights to prospect for diamonds
on the farm
Wolfberg 187 (Wolfberg) in the Nama Khoi municipality (formerly the
district of Springbok) in the Northern Cape. Kasimira
became the
owner of Wolfberg on 2 April 2012. Carpe was (or is, depending on the
outcome of this case) the holder of what is called
in the Minerals
and Petroleum Resources Development Act, 28 of 2002 (the MPRDA) an
old order prospecting right.
2.
Kasimira
applied for relief in two stages. In Part A of the notice of motion,
Kasimira sought orders
pendent
lite
interdicting
Carpe from continuing to prospect on and for its eviction from
Wolfberg. In part B, Kasimira asked for relief arising
from a
decision taken by a functionary in the Department of Mineral
Resources (DMR) to convert Carpe’s old order prospecting
right
into a new order prospecting right.
[1]
Kasimira lodged an internal appeal against that decision. Its
internal appealwas lodged a few days late and Kasimira also applied
to the Minister for condonation in this regard. But the second
respondent (the Minister) whose duty it was to decide the appeal,
took no decision on the appeal. Kasimira also asked in Part B of its
notice of motion that the failure of the Minister to take
a decision
on the appeal be reviewed and set aside and to exempt, in terms of
the Promotion of Administrative Justice Act, 3 of
2000 (PAJA),
Kasimira from any further obligation to participate in the internal
appeal processes provided for in the MPRDA. Inaddition,
Kasimira
sought a declaration that Carpe had no prospecting right over
Wolfberg and a final order ejecting Carpe and its equipment
from
Wolfberg.
3.
The first, second and third respondents (collectively the government
respondents) gave notice to abide. The application was thus
resisted
only by Carpe.
4.
The interim interdict sought in Part A of the notice of motion was
granted on 7 February. Part B came before Ismail J and on
15 May
2014, it was ordered that the interim interdict be confirmed and that
the impugned decision of the DMR be set aside. In
addition the court
below declared that Carpe had no valid prospecting rights to
Wolfberg.
5.
On 17 July 2014, Ismail J granted leave to appeal to the full court
of this Division against the orders made by the learned judge.
6.
There are five grounds of appeal. Firstly, Carpe claims that the
review component of the relief sought by Kasimira was instituted
out
of time and that there is no application for an extension of time
under s 9 of PAJA; secondly that Kasimira ought to have exhausted
an
internal remedy available to it under s 96 of the MPRDA before
approaching the court on review; thirdly that Kasimira
was
not excused from exhausting the internal remedy simply because the
Minister did not oppose the application in this court
and preferred
that the court deal with the matter; fourthly that the entire
application constituted by Part B of the notice of
motion was
res
judicata
on the ground that the issues raised by the application
had been pronounced upon in litigation in the Kimberley High Court in
November
2012; and fifthly, that the court below erred in finding
that Carpe had no valid prospecting right over Wolfberg.
7.
The matter
is complicated at a procedural level because Carpe's attorney allowed
the appeal to lapse. Kasimira seeks an order, pursuant
to a formal
application commenced by notice of motion dated 12 January 2016, that
the appeal has indeed lapsed. The grounds on
which it was said that
the appeal had lapsed were that Carpe was some five months late in
applying for a date for the appeal,
[2]
some five months late in a filing the appeal record,
[3]
had failed to file a power of attorney at all and had failed to
provide security under rule 49(13), which reads:
(a) Unless the
respondent waives his or her right to security or the court in
granting leave to appeal or subsequently on
application to it, has
released the appellant wholly or partially from that obligation, the
appellant shall, before lodging copies
of the record on appeal with
the registrar, enter into good and sufficient security for the
respondent's costs of appeal.
(b) In the event of
failure by the parties to agree on the amount of security, the
registrar shall fix the amount and the
appellant shall enter into
security in the amount so fixed or such percentage thereof as the
court has determined, as the case
may be.
8.
Carpe
responded by bringing an application on notice of motion dated 15
March 2016 for orders condoning the late filing of the record
and the
power of attorney
[4]
and either
releasing Carpe from the obligation to furnish security for
Kasimira's costs of appeal or ordering Carpe to find such
security in
an amount to be determined by the court.
9.
It is trite
that it is the duty of an appellant which learns that it needs to
seek condonation for failures to comply with the Rules
to do so as
soon as possible after it has realised it is in default.
[5]
But the appellant cannot claim that it has done so in this case
because its attorney was told in a letter dated 16 April 2015 that
the appeal had lapsed. The response, in a letter dated 17 April 2015,
was that the attorney for Carpe was experiencing problems
with the
preparation of the appeal record and would apply for condonation
''where applicable".
10.
By letter dated 9 October 2015, the attorney for Kasimira pointed to
the failure of Carpe to furnish the security required under
the
Rules. She demanded security both under the Rules and because Carpe
was insolvent. The response to this letter by the attorney
for Carpe
was dated 22 October 2015. The letter made clear that the activities
of Carpe on Wolfberg went far beyond prospecting
and indeed extended
to mining for diamonds on Wolfberg. Carpe has no right to mine on
Wolfberg. The clear implication of the letter
was that Carpe had no
assets other than that represented by its alleged prospecting right
and the letter suggested that the impecuniosity
of Carpe arose from
its inability to prospect. It will be recalled that Carpe had been
interdicted from prospecting. But still
no application for
condonation was forthcoming until Carpe, or more accurately its
attorney, was forced to confront the exigencies
arising from
Kasimira's application to declare that the appeal had lapsed.
11.
Carpe
experienced difficulty preparing the record on appeal. The reason why
the power of attorney was filed late and no application
was made
promptly for condonation of the failures to comply with the Rules is
quite simply that Carpe's attorney, Mr
WAC Bouwer,
neglected to acquaint himself with or comply with the simple
provisions of the Rules relating to the procedural
obligations of an
appellant's attorney and the equally simple provisions of the law
laid down by the courts over many decades regarding
the duty of such
an attorney who neglects to comply with those rules.
[6]
Such an attorney must ensure that an application is brought at the
earliest reasonable opportunity for condonation and must explain
the
delays. The basic reason for this jurisprudence is to minimise the
inconvenience and prejudice caused to the other litigants
on appeal,
to the court and to the administration of justice generally.
12.
The failure to find security and to obtain a ruling on the failure to
find security before the appeal was due to be heard is
of a character
different to the other procedural non-compliances which I have
mentioned. It is the right of a respondent on appeal
to go into an
appeal secured, at least to the extent provided by the Rules, against
the inability of the appellant to pay costs
if the appeal is
unsuccessful. This right of Kasimira has been rendered valueless by
the deliberate act of Carpe and its attorney.
As far back as 9
October 2015, ie more than a year ago, Kasimira told Carpe in its
attorney's letter of that date that it insisted
on the provision of
security.
13.
As far as I can make out, the sole basis on which Carpe seeks
condonation for its failure to find security is that it has been
prevented from mining for diamonds on Wolfberg. The affidavits in
Carpe's application for condonation make it perfectly plain that
Carpe's only source of revenue is its diamond mining activity on
Wolfberg. But Carpe may not mine there for diamonds. Carpe was
never
entitled to mine there for diamonds. I think that the only fair
inference is that Carpe throughout has used such prospecting
rights
as it had and the illusion of prospecting rights that it has managed
to create from time to time, to conduct illegal mining
activities on
Wolfberg.
14.
Carpe has
found money (an "enormous amount'')
[7]
to fund its application for leave to appeal. Why no money was found
to provide security is left unexplained. The failure to provide
an
explanation as to why security should be dispensed with and the
failure to have the issue of security resolved by application
to
court before Kasimira incurred expense in opposing the appeal are in
my view sufficient by themselves to justify the dismissal
of the
application to dispense with security. No suggestion has been made in
the papers as to what security in amount or form
prescribed by
the Rules ought to be ordered in terms of Carpe's alternative prayer
in this regard.
15.
As additional factors bearing upon the discretion of the court to
relax the prescriptions of the Rules as to security, I give
weight to
the purpose of Carpe in persisting with the appeal. It is doing so in
the hope that success on appeal will enable it
to continue with its
unlawful diamond mining activities. In addition, I have regard to the
neglect of its attorney's duty to acquaint
himself with the Rules
regarding appeals and to bring applications for condonation promptly.
16.
We were
referred in argument to
Strouthos
v Shear,
[8]
in which it was held in this Division that where leave to appeal has
been granted by the SCA, only that court has the power to
release an
appellant from its duty to provide security under rule 49(1) and that
this court, hearing the appeal by direction of
the SCA has no
jurisdiction in that regard. I shall assume however that we do have
the requisite jurisdiction. But on the grounds
I have mentioned. I
consider that the application for condonation ought to fail without
any reference to the merits of the appeal.
[9]
17.
Had the shortcomings relating to the record and the power of attorney
stood alone, Ishould have considered Carpe's prospects
of success in
the appeal before coming to a decision on condonation. I propose now
to deal with Carpe's prospects of success.
18.
The foundation of Carpe's claim to prospecting rights over Wolfberg
is its old order prospecting right. Carpe's old order prospecting
right on which it relies for the purposes of this case arose from a
permit granted to it under s 6(1) of the Minerals Act, 50 of
1991
(the old Minerals Act). This permit was expressed to expire on 1
October 2005.
19.
The position of old order prospecting rights is regulated by item 6
of Schedule II to the MPRDA. Item 6(1) reads:
Subject to sub items (2)
and (8), any old order prospecting right in force immediately before
this Act took effect continues in
force for a period of two years
from the date on which this Act took effect
subject
to the terms and conditions under which it was granted or issued or
was deemed to have been granted or issued.
[10]
20.
Subitem (2) of item 6 requires the holder of an old order prospecting
right to lodge it for conversion into a right under the
MPRDA by a
specified time. Carpe indeed lodged its old order prospecting right
for conversion. Pursuant to such lodgement, the
DMR purported to
confer a new order right. The letter dated 25 August 2011, upon which
Carpe relies as the instrument purporting
to confer upon Carpe the
new order right, does indeed purport to grant a prospecting right in
terms of item 6(3) of Sch II, which
deals with the conversion of old
order prospecting rights into new order prospecting rights. But the
instrument is silent as to
the period of the converted right. Section
16(6) of the MPRDA provides that a prospecting right is valid "for
the period specified
in the right, which period may not exceed five
years". But the "right" for the purposes of s 16(6) on
which Carpe
relies is the letter dated 25 August 2011 and that
"right" is silent as to period. It seems to me that the
letter of
25 August 2011 is ineffectual because it does not specify
any period. On the papers both sides however accepted that the DMR
purported
to extend Carpe's right to prospect on Wolfberg for a
further year. Whether or not that extension was lawfully conferred
does not
change my ultimate conclusions on the merits of the appeal.
21.
So, at best for Carpe, what happened was that an old order right
which was to expire on 1October 2005 was purportedly converted
into a
new order right which was to expire on 1 October 2006. One can stop
there. The purpose of item 6 was to enable old order
rights to
continue to exist, subject to certain procedural compliances, for at
most the lifetimes of those old order rights. An
old order right
holder cannot acquire greater rights under the conversion process
than it could under the old order. The DMR did
not have the power to
convert an old order prospecting right into a new order right of
duration longer than the original old order
right.
22.
But Carpe contends that its old order right has continued to exist
even today. This, on the face of it, startling claim is based
on the
provisions of subitems 5, 7 and 8 of item 6, which read as follows:
(5) The holder must lodge
the right converted under subitem (3) within 90 days from the date on
which he or she received notice
of conversion at the Mining Titles
Office for registration and simultaneously at the Deeds Office or it
the Mining Titles Office
for deregistration of the old order
prospecting right, as the case may be.
(6)…
(7) Upon the conversion
of the old order prospecting right and the registration of the
prospecting right into which it was converted,
the old order
prospecting right ceases to exist.
(8) If the holder fails
to lodge the old order prospecting right for conversion before the
expiry of the period referred to in subitem
(1), the old order
prospecting right ceases to exist.
23.
It will be seen that subitem (7) requires simultaneous new order
registration and old order deregistration as one of the two
conjunctive requirements for an old order prospecting right ceasing
to exist. Carpe lodged its purported new order prospecting
right for
registration and deregistration but for some reason, registration and
deregistration did not take place until, we were
told from the bar,
comparatively recently when a new order prospecting right not dealt
with in the present papers was conferred
on it. Thus, submits Carpe,
its old order right did not cease to exist and it was entitled even
when the application was adjudicated
in the court below in 2014,
seven or eight years after the date upon which its old order
prospecting right was expressed to expire
by effluxion of time, to
prospect for diamonds on Wolfberg.
24.
I do not agree. An old order prospecting right continued to exist,
all other things being equal, "subject to the terms
and
conditions under which it was granted or issued or was deemed to have
been granted or issued." Carpe's old order prospecting
right
expired on 1 October 2005 precisely because that was the period of
validity for which it was granted or issued.
25.
The DMR had no power, in my opinion, to convert an old order
prospecting right due on its own terms to expire in 2005 to a new
order right due to expire at a later date. For that an application
for a new order prospecting right under s 16 was essential.
The court
below rightly set aside the decision of the DMR in this regard.
26.
Carpe has thus in my judgment no prospects of success on the merits.
For this conclusion no review jurisdiction need be exercised.
The
conclusion finds effect through the exercise by the court of its
jurisdiction to make declaratory orders and grant consequential
relief. Three issues remain for consideration. The first is that the
review was brought out of time.
27.
Kasimira became the owner of Wolfberg on 2 April 2012. Its
representative, Mr Hendricks, learnt by word of mouth that Carpe
asserted rights to prospect for diamonds on Wolfberg. Enquiries led
to a meeting at an hotel in Springbok on 10 February 2011 between
Hendricks and the representative of Carpe, Mr Cloete. During this
meeting Cloete asserted Carpe's prospecting right over Wolfberg
but
based it on a letter dated 14 October 2005 written by the DMR to
record the acceptance of an application to convert Carpe's
old order
prospecting right.
28.
It is this document which Carpe claims made Kasimira aware of the
existence of Carpe's old order prospecting right. Kasimira
however
rightly did not regard this single document as proving that Carpe
held rights. But even if it did, the letter did not record
the
administrative decision ultimately impugned by Kasimira on review, ie
the decision of the DMR to
converl the
old order prospecting
right into a new order prospecting right.
29.
Kasimira only acquired the knowledge that such a decision had been
madewhen Kasimiratook proceedings against Carpe inthe Kimberley
High
Court under case no. 1659/2012 (the Kimberley application). In its
terms, Kasimira's notice of motion in the Kimberley application
sought to interdict Carpe from carrying on mining or prospecting
activities on Wolfberg for as long as Carpe failed or refused
to
provide Kasimira with certified copies of certain specified documents
which Kasimira suggested were fundamental to any claim
Carpe might
have to rights inthis regard.
Pendente lite,
Kasimira sought
inthe Kimberley application to have Carpe vacate Wolfberg.
30.
In its answering affidavit in the Kimberley application, Carpe
provided a number of documents. The Kimberley High Court gave
judgment on 9 November 2012 dismissing Kasimira's claim. Carpe prays
this judgment in aid for the proposition that the judgment
in the
Kimberley application rendered the relief presently sought
res
judicata.
31.
It is so
that many of the issues arising in the present case were argued in
the Kimberley application and that the learned judge
who heard the
Kimberley application made certain pronouncements which touch upon
issues raised before this court. But the requirements
for the
application of the doctrine of
resjudicata
are
that a judgment must have ben given in previous litigation between
the same parties in relation to the same cause of action
in
proceedings inwhich the same thing is claimed.
[11]
Neither the cause of action or what was claimed in the court below in
the present case was the same as in the Kimberley case. The
defence
of
res
judicata
has
no merit.
32.
Kasimira sought to take the decision of the DMR on internal appeal to
the Minister. It noted the internal appeal some three
days out of
time. But the Minister simply did not decide the appeal and finally
Kasimira approached this court. Carpe contends
that Kasimira should
beforced by this court to revert to an administrative appeal for
which it has waited an unconscionable time.
I do not agree. Justice
and fairness demand that this matter be disposed of. To the extent
that any extension of time or release
from the obligation to exhaust
internal remedies is required in this case, it should manifestly be
granted.
33.
It follows from what I have said above that Carpe's application for
condonation of its non-compliance with the Rules of this
court should
not on any basis be granted. Kasimira gave notice that it would seek
a punitive costs order against attorney Bouwer
in his personal
capacity. Attorney Bouwer is certainly to blame for the procedural
shortcomings in the manner in which the appeal
was prosecuted. In my
view, Mr Bouwer was guilty of gross negligence. An aggravating factor
isthat Mr Bouwer knew that a
nu/la bona
return had been made
against Carpe. He knew full well that Kasimira would be unlikely to
recover any costs from Carpe arising from
his negligence. In these
circumstances a punitive costs order against Mr Bouwer
de bonis
propriis
in relation to the costs of the application for
condonation is fully justified. The application to declare that the
appeal has lapsed
is interwoven with the application for condonation
and was brought, at least partly, because of the attitude of
indifference displayed
by Mr Bouwer towards the consequences of Mr
Bouwer's own conduct which caused Kasimira prejudice and
inconvenience. In addition,
the appeal had to be postponed on 3
February 2016, with costs reserved, to enable Carpe to bring its
application for condonation
of its non compliances with the
Rules of this court. For this Mr Bouwer is equally responsible and I
consider that he should
be held liable for the wasted costs arising
from this postponement.
34.
I accordingly propose the following order:
1. It is declared that
the appeal has lapsed.
2. The appeal is struck
from the roll.
3. The application for
condonation brought by Carpe Diem Explorations (Pty) Limited,
described in the papers as the appellant and
the applicant for
condonation, is dismissed.
4. Carpe Diem
Explorations (Pty) Limited must pay the costs of the appeal of the
first respondent on appeal, Kasimira Trading 82
(Pty) Limited.
5. Carpe Diem
Explorations (Pty) Limited and its attorney, Willem Abraham
Christiaan Bouwer, must, jointly and severally, pay the
costs of suit
of Kasimira Trading 82 (Pty ) Limited on the scale as between
attorney and client in relation to:
5.1 the application to
declare that the appeal has lapsed brought by Kasimira Trading 82
(Pty ) Limited;
5.2 the application for
condonation brought by Carpe Diem Explorations (Pty) Limited; and
5.3 the wasted costs
occasioned by the postponement of the appeal on 3 February 2016.
_________________
NB
Tuchten
Judge
of the High court
13
December 2016
I
agree. An order is made
as
set out in paragraph 34 above.
_________________
RG
Tolmay
Judge
of the High Court
December
2016
I
agree
__________________
H
Fabricius
Judge
of the High court
13
December 2016
[1]
It is unnecessary for present purposes to identify the decision
maker within the DMR. In what follows, I shall refer to decisions
or
conduct of functionaries within the DMR simply as having been made
or performed by the DMR.
[2]
Rule 49(6)(a)
[3]
Rule 49(7)(a)
[4]
Which was ultimately filed over a year late.
[5]
As to the principles which govern applications for condonation
generally, see Harms, Civil Practice in the Superior Courts
(looseleaf ed), vol 1 para C12.3.
[6]
An attorney instructed by an appellant to prosecute an appeal who
wishes to establish the ambit of his duties as such need not
do much
more than read the provisions of Rule 49 and a few paragraphs in a
standard work on civil procedure.
[7]
Condonation application p100
[8]
2003 4 SA 131
T
[9]
Compare Blumenthal and Another v Thomson NO and Another
[1993] ZASCA 190
;
1994 2 SA
118
1211. where the principle is expressed that in cases of flagrant
breaches of the Rules. especially where no adequate explanation
is
forthcoming. condonation may be refused irrespective of the merits
of the appeal and even though the blame lay solely with
the
appellant's attorney.
[10]
My emphasis
[11]
Amler's Precedents of Pleadings. 7th ed (2009) 341-2