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[2015] ZAGPPHC 395
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Mbuyane Communal Property Association v Sibiya N.O and Others (2014/45865) [2015] ZAGPPHC 395 (17 June 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 2014/45865
DATE: 17 JUNE 2015
In the matter between:
THE MBUYANE COMMUNAL PROPERTY
ASSOCIATION
....................................
APPLICANT
And
MR ABE SIBIYA
N.O
........................................................................................
FIRST
RESPONDENT
MS NOSIPHO NGCABA
N.O
.....................................................................
SECOND
RESPONDENT
MS EDNA MOLEWA
N.O
...............................................................................
THIRD
RESPONDENT
SKUKUZA AIRPORT MANAGEMENT COMPANY
(PTY) LTD
.........
FOURTH RESPONDENT
JUDGMENT
TWALA AJ
[1] This is an interlocutory
application in which the applicant seeks to join Mr Kuseni Douglas
Dlamini N.O. in his capacity as
the chairperson of the South African
National Parks (SANParks) as the Fifth Respondent in the review
application that was instituted
by the applicant on the 23 June 2014.
The applicant prays for the following orders:
1.1 Mr Kuseni D Dlamini N.O in his
capacity as chairman of the South African National Parks Board and
care of Savage Jooste &
Adams Inc, Attorneys, 141 Boshoff Street,
New Muckleneuk, Pretoria, is joined as the fifth respondent herein.
1.2 The applicant is permitted and
granted the necessary leave to amend its notice of motion dated 23
June 2014 so as to provide
for the joinder of the fifth respondent as
provided for, and in the respect set out in, annexure JOINOS to the
affidavit supporting
this application for joinder (being the proposed
amended notice of motion).
1.3 The applicant is authorised to
serve a copy of this order and all the papers filed in the
application thus far on the party
so joined by delivery thereof to
the address stated above.
1.4 Such respondents as may oppose the
application are ordered to pay the costs of this application on a
scale as between attorney
and own client jointly and severally, the
one paying the other to be absolved.
[2] The applicant is described as a
community based organisation registered in terms of the Communal
Property Association Act 1996
(Act 28 of 1996). It was established
with the specific purpose of harnessing and using the benefits
accruing to the historically
disadvantaged community of Dwaleni
Township, Mpumalanga Province, from its contribution to the Kruger
Mpumalanga International
Airport (hereinafter referred to as the
KMIA). Through the applicant, the community owns a ten percent (10%)
share in Primkop Airport
Management (Pty) Ltd, which in turn owns and
operates the KMIA. It receives a monthly levy on all passengers and
freight departing
the KMIA.
[3] Applicant has instituted review
proceedings against the decision of SANParks to reopen the Skukuza
Airport in the Kruger National
Park to scheduled commercial air
traffic. In its review application, the applicant cited Mr Abe Sibiya
N.O. in his capacity as
Acting CEO and information officer of
SANParks.
[4] It is apparent that the applicant
requested certain documents from SANParks including those documents
that contained the decision
to reopen the Skukuza Airport. Applicant
was furnished with documents which did not support the view that the
decision was taken
by management. Applicant served and filed a rule
30A notice to compel the first respondent to file a complete and or
proper record
of the proceedings wherein the decision was taken by
SANParks to reopen the Skukuza Airport. The first respondent
responded by
filing a Rule 30 notice stating that the first
respondent is a
Chief Executive Officer of SAN Parks.
As such the first respondent is a third party as far as the decision
of SAN Parks, that the
applicant seeks to set aside, is concerned.
[5] The first respondent and Mr Dlamini
contend that the applicant elected to exclude Mr Dlamini in the
review application. Therefore
it waived its rights to join Mr Dlamini
in the proceedings. Further, that applicant is barred from raising a
cause of action against
Mr Dlamini - thus it will serve no purpose to
join him. The issue is moot as between the applicant and Mr Dlamini.
Applicant alleges
to have learnt of the proposed reopening of the
Skukuza Airport in December 2013. It is now too late for the
applicant in asking
for the joinder of Mr Dlamini.
[6] The applicant in its main
application has been seeking a review of the decision of SAN Parks
and not of the management of SAN
Parks. SAN Parks is a juristic
person in terms of Section 5 of the National Parks Act, (Act 57 of
1976) read with Section 54(1)
of the National Environment Management
Protected Areas Act, (Act 57 of 2003). SAN Parks is governed by a
board in terms of Section
57(1) of the National Environment Protected
Areas Act and Mr Dlamini is the chairperson of the SANPARKS Board.
[7] Section 57 of the National
Environment Management Protected Areas Act provides as follows:
57 (1) South African National Parks is
governed by a board consisting of-
(a) No fewer than nine and no more than
12 members appointed in terms of section 59;
(b) The Director-General or an official
of the Department designated by the Director-General; and
(c) The Chief Executive Officer.
(2)
(3) The Board takes all decisions in
the performance of the functions of South African National Parks,
except-
(a) those decisions taken in
consequence of a delegation in terms of section 71; or
(b) where the Public Finance Management
Act provides otherwise.
[8] Rule 53 of the rules of court
provides as follows:
“Save where any law otherwise
provides, all proceedings to bring under review the decision or
proceedings of any inferior
court and of any tribunal, board or
officer performing judicial, quasi-judicial or administrative
functions shall be by way of
motion directed and delivered by the
party seeking to review such decision or proceedings to the
Magistrate, presiding officer
or chairman of the court, tribunal or
board or to the officer, as the case may be, and to all other parties
affected -
(3)
(b) ”
[9] I agree with the respondents that
the CEO of SANParks is a third party in the review proceedings. The
person that the applicant
should have cited in the review proceedings
is the chairperson of the board of SANParks. The CEO is the executive
leading the management
of SANParks and he reports to the board as an
ex officio member of the board. Rule 53 states it clearly that for a
review application
for the decision of a board, such application
shall be directed and delivered to the chairperson of the board.
[10] The applicant, as a representative
of the community and shareholder in the company that owns and
operates the KMIA, has taken
upon itself to review the decision of
the SANParks board to protect the interest of the broader community
of Dwaleni Township.
It cited the CEO of the SANParks and served all
the documents on the CEO as a representative of the board of
SANParks. In the circumstances,
although the correct person to be
cited was the chairperson of the SANParks board, these proceedings
did come to the attention
of the board including the chairperson who
is the presiding officer of the board.
[11] The submission by the respondents
that the applicant has by its conduct waived its right to join the
chairman of the SANParks
board, is unsustainable. Nothing suggest
that the applicant deliberately excluded to join the chairperson of
the board in the proceedings.
It is clear that the applicant at all
times was seeking an order to review the decision of SANParks and not
the decision of the
management of SANParks. Applicant therefore
believed the citing of chairperson together with the CEO of SAN Parks
was ex abudante
cautela. That cannot be said to be in itself a clear
intention to waive the right to join the chairperson of the board.
[12] In Hepner vs Roodepoort Maraisburg
Town Council
1962 (4) Sa 772
(A) Heyer CJ said the following:
“There is authority for the view
that in the case of a waiver by conduct, the conduct must ieave no
reasonable doubt as to
the intention of surrendering the right in
issue”
In Laws vs Rutherford 1924 AD at 261
Innes CJ said:
“The onus is strictly on the
applicant He must show that the respondent with full knowledge of her
right, decided to abandon
it, whether expressly or by conduct plainly
inconsistent with an intention to enforce if.
[13] In my view the respondent has not
discharged the onus placed upon it to show that applicant, by its
conduct and with full knowledge
intended to abandon its right to join
the chairperson of the SANParks board.
[14] Applicant has requested documents
from the SANParks which relate to the decision that led to the
reopening of the Skukuza Airport.
Applicant was not furnished with
these documents or was furnished with some documents which did not
contain the information on
which the decision was based. The CEO in
its Rule 30 notice stated that it was a third party and only the
chairperson of the board
can provide such documents.
[15] It is therefore my view that there
is a case for the chairperson of the board to answer in the review
application. He is the
presiding officer of the board and is the
custodian of the minutes of the board. It is necessary to join him in
the proceedings.
It is therefore in the interest of justice that he
be jointed in these proceedings. No prejudice will be suffered by the
board
or the chairperson if joined in these proceedings for the board
is aware of the review proceedings. The CEO is an ex officio member
of the board and all the pleadings of the review application were
served on him.
[16] Counsel for the respondents submit
that the review application itself is out of time for it was not
instituted within 180 days
from the date upon which the applicant
became aware of the decision of SANParks board as required by section
7 of the Promotion
of Administrative Justice Act, Act 3 of 2000.
It is my view that the issue whether
the application for review was lodge within the prescribed time
frames as required by the law
is for determination by the court
hearing the review application. All issues relating thereto may be
ventilated in that court.
[17] I am persuaded by counsel for the
respondents’ submission that a costs order should be made
against the applicant for
its sloppiness in preparing its papers.
Applicant brought the application for a joinder because it was
necessary to join the chairperson
of the board in the proceedings. It
is not correct to say that the joinder application is brought as a
matter of extreme and abundant
caution. Applicant has proceduraily
failed to join the chairperson of the board although at all times it
was seeking to review
the decision of the board. In my view the
joinder application is necessary and for that reason the applicant is
to bear the costs
for making such an error.
[18] In the result, I make the
following order:
1. Mr Kuseni Douglas Dlamini N.O. in
his capacity as chairman of the South African National Parks Board is
joined as a fifth respondent
herein.
2. The applicant is permitted and
granted leave to amend its notice of motion dated 23 June 2014 so as
to provide for the joinder
of the fifth respondent as provided for
and in the respect set out in the proposed amended notice of motion.
3. The applicant is authorised to serve
a copy of this order and all the papers filed in the application thus
far on the party so
joined.
4. Applicant to pay the costs of this
application including the costs of two counsels.
TWALA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
Counsel for the Applicant: Adv.
SWART SC
Instructed by: Erasmus Attorneys
Counsel for the First &
Fifth Respondents: Adv. MARITZ SC
Instructed by: Savage Jooste &
Adams Second and Third Respondents
Instructed by: State Attorney Fourth
Respondent
Instructed by: Cliffe Dekker Hofmeyr
Inc
Date of Hearing: 18 May 2015
Date of Judgment: 17 June 2015