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[2012] ZANCHC 4
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Van den Heever v Minister of Minerals and Energy and Others (1252/2010) [2012] ZANCHC 4 (4 May 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE HIGH COURT, KIMBERLEY
CASE NO: 1252/2010
HEARD ON: 28/11/2011
DELIVERED: 04/05/2012
In the matter between:
GERT VAN DEN HEEVER
…...................................................................
APPELLANT
and
THE MINISTER OF
MINERALS AND ENERGY
….............................................................
1
st
RESPONDENT
THE DIRECTOR GENERAL:
DEPARTMENT OF MINERAL RESOURCES
….................................
2
nd
RESPONDENT
TRANSHEX MYNBOU BEPERK
…..................................................
3
rd
RESPONDENT
TRANS HEX OPERATIONS (PTY) LTD
…........................................
4th
RESPONDENT
RICHTERSVELD MUNICIPALITY
…................................................
5
th
RESPONDENT
CORAM: KGOMO JP
et
HUGHES-MADONDOAJ
JUDGMENT
HUGHES-MADONDO, AJ
In these review
proceedings the applicant seeks the relief as is set out in
thefollowing amended notice of motion:-
Declaring that the
third respondent,Trans Hex Mynbou Beperk, had on 26 January 2001
abandoned its right to mine for minerals,
more particularly,
diamonds on two contiguous portions of land on the Farm
Richtersveld No 11, Namaqualand, Northern Cape,
as depicted in
yellow on the original sketch plan which was annexed to the notice
of motion, marked “A”, in respect
of which the
applicant had applied for permits to mine diamonds;
Declaring as invalid
and of no legal force and effect the notarial deed of cession
concluded on 8 May 2011 between the third
and fourth respondents
(Trans Hex Operations (Pty) Limited) insofar as the said cession
purports to cede, assign, transfer
and make over to and in favour
of the fourth respondent and the third respondent’s supposed
and/or ostensible right to
mine for minerals, more particularly,
diamonds on the portions of land referred to in paragraph 1.1
above;
Reviewing and setting
aside the decision taken by the second respondent on 25 September
2001 in terms of which he registered
and/or allowed to be
registered in the Mining Titles office at Pretoria under the Mining
Title number 21/2001 the cession referred
to in paragraph 1.2 above
insofar as the said registration purports to validate and/or
legalise that part of the cession in
terms of which the third
respondent purported to assign, transfer and make over to and in
favour of the fourth respondent the
third respondent’s
supposed and/or right to mine for minerals, more particularly,
diamonds on the land set forth in paragraph
1.1 above;
Reviewing and setting
aside the decision taken on 16 June 2009, alternatively, on 27
August 2009 by the first respondent, alternatively,
the second
respondent, alternatively, by the Deputy Director-General acting
within the course and scope of his employment with
the first
respondent, the Minister of Minerals and Energy, alternatively, the
second respondent, in terms of which he converted
the fourth
respondent’s so-called old order mining right in respect of
the property referred to in paragraph 1.1 above,
previously
abandoned by the third respondent, into a right as contemplated in
terms of Schedule ii of the Mineral and Petroleum
Resources
Development Act (No 28 of 2002) in favour of the fourth respondent;
Reviewing and setting
aside the decisions taken on 16 March 2010 by the second respondent
in terms of which he rejected the
applicant’s appeals against
the decisions taken on 29 October 2008 by the Regional Manager:
Northern Cape Region: Department
of Minerals and Energy (“the
Regional Manager”) in terms of which the latter rejected the
applicant’s applications
for mining permits in respect of the
two portions of contiguous properties referred to in paragraph 1.1
above;
Referring back the
applications by the applicant for permits to mine diamonds on the
two portions of contiguous properties,
referred to in paragraph 1.1
above, to either the Regional Manager, alternatively, the second
respondent, for his re-consideration
in light of this Court’s
orders in terms of paragraphs 1.1 to 1. 5 above;
Costs of suit against
any of the respondents who oppose this application, jointly and
severally, the one paying the other/s
to be absolved.
RELEVANT BACKGROUND FACTS
The applicant decided
to access the mining industry. To this end on 15 October 2008 he
applied to the Regional Manager: Mining
Regulation of the Northern
Cape Regionin terms of
Section 27(2)
of the
Mineral and Petroleum
Resources Development Act 28 of 2002
(“MPRDA”). The
applicant sought two permits to mine diamonds on two adjoining
pieces of land situated on a portion
of the farm Richtersveld No.11,
in the district of Namaqualand, Northern Cape.
Having received
written rejections to both permits from the Regional Manager on 29
October 2008, the applicant lodged appeals
in respect of both
matters on 24 November 2008 to the Department of Mineral Resources,
the second respondent. Both appeals were
dismissed on 16 March 2010.
In a nutshell the
refusal to grant the applicant’s applications for mining
permits and the dismissal of the applicant’s
appeals were
based on the fact that the mining permits sought by the applicant
had already been issued in favour of the third
and fourth
respondents, being Trans Hex Mynbou Beperk and Trans Hex Operations
(PTY) LTD, respectively.
THE ISSUE
The applicant contends
that the third respondent abandoned its
mining rights
by way
of correspondence to the second respondent dated 26 January 2001.On
1 October 1993 these
mining rights
had been converted to a
mining licence
.
This
mining licence
pertained to
certain portions of land that formed part of a
mining
lease
whichincluded the two portions of adjoining land that the
applicant sought the mining permits for.
The applicant
maintained that the third respondent had abandoned its mining and
mineral rights as at 26 January 2001 more specificallythose
mineral
and mining rights in relation to diamondson the two adjoining
portions of land on the Farm Richterveld No. 11. It is
contended
that due to the aforesaid abandonment, the applicant’s mining
permit applications in respect of the two adjoining
portions should
not have been rejected.
The abandonment is the
focal issue in these proceeding. If successful on the abandonment
issue a further issue exists: viz the
cession of the mining lease
from the third respondent to the fourth respondentand the conversion
thereof to a mining licence
in terms of section 9(1) of the Minerals
Act 50 of 1991. Further, whether the cession could have materialised
at all in light
of the provisions of section 13 of the Minerals Act.
THE RELEVANT MINING LEGISLATION
In terms of section 2
of the Precious Stones Act 73 of 1964, the right to mining for and
disposal of precious stones was vested
in the State. By virtue of
section 21 of the said Act, the state was entitled to lease its
right to mining and disposal of precious
minerals. Such a mining
lease existed between Mynbou and the state.
In terms of this
mining lease
Mynbou had the sole right to mine precious stones
and could only exercise mining activities on the leased portions to
the satisfaction
of the Minister of Mineral, Energy and Public
Enterprise, who represented the state. Amendments to the mining
lease were permissible
by consent of the parties.
On 1 January 1992 the
Minerals Act 50 of 1991 came into effect. It repealed the Precious
Minerals Act. The crucial aspect that
arose as a result of the
repeal was that the state was no longer vested with the
right to
mining
. In accordance with section 5 of the Minerals Act
the
holder of the right to any minerals
in respect of land, in order
to mine for such minerals, had to attain the
necessary
authorisation
to do so. Thus the
mineral rights holder
could
exercise this right subject to section 9 of the Minerals Act which
sets out the terms for issuing the necessary
mining
authorisation
.
Section 9 (1) deals
with the provision of a mining authorisation and reads as follows:
“
The
Director-Mineral Development shall, subject to the provisions of this
Act, upon application in the prescribed form and on payment
of the
prescribed application fee, issue a mining authorization in the
prescribed form for a period determined by him authorizing
the
applicant to mine for and dispose of a mineral in respect of which
he-
(a) is the holder of
the right thereto; or
(b) has acquired the
written consent of such holder to mine thereto on his own account and
dispose thereof, ......in respect of
the land or tailings, as the
case may be, comprising the subject of the application.”
Therefore, in terms of
section 9 subsections (1)(a) and (1)(b) the mineral rights holder
can only mine the minerals if he had
the necessary authorisation to
do so from the Director-Mineral Development.
Section 9
subsections(3)(d) and (3)(e) goes on to set out the prerequisites
for the mining authorisation:
“
No
mining authorisation shall be issued in terms of subsection
(1),unless the Director-Mineral Development is satisfied-
(d) that the mineral
concerned in respect of which
a mining permit
is
to be issued-
(i) occurs in
limited quantities in or on the land or in tailing, as the case may
be, comprising the subject of the application;
or
(ii) will be mined
on a limited scale; and
(iii) will be mined
on a temporary basis; or
(e) that there are
reasonable grounds to believe that the mineral concerned in respect
of which
a mining licence
is to be issued-
(i) occurs in more
than limited quantities in or on the land or in tailings, as the case
may be, comprising the subject of the application;
or
(ii) will be mined
on a larger than limited scale; and
(iii) will be mined
for a longer period than two years.”
(Emphasis added)
A reading of section
9(3)(d) and (e) reflects that there are two types of mining
authorisation:
(1) a mining permit;
and,(2) a mining licence.
The former is for a
period not exceeding two years, mining less quantity of deposits on a
limited scale. The latter is for mining
for a period exceeding two
years, mining more than a limited quantity of deposits and mining on
a larger than limited scale. What
is distinct between the two is that
the permit cannot be granted for a period of more than two years
whilst the licence may be
granted for a period longer than two
years.
See A GUIDE TO THE MINERALS ACT 1991 by M KAPLAN and M O
DALE (Kaplan and Dale) at page 78-79
.
Now section 47
(1)(a)(iii) of the Minerals Act ensured the retention of the
mining
rights
that Mynbou held under section 21 of the Precious Stones
Act,that is under the mining lease, which was in place prior to the
enactment of the Minerals Act. These mining rights weresubject to
the terms and conditions under which they had been acquired.
In terms of section
47(1)(e) the holder of any
mining right
shall for a period of
two years be deemed to be the holder of a
mining authorisation
.
On expiration of the aforesaid two year period a
mining
authorisation
would have to be obtained from the Director-
Mineral Development in terms of section 9.
Section 47 (1) (f)
goes further to provide that the holder of a
mining right
may
abandon the said right wholly or in part at anytime, by written
notice to the Director-Mineral Development. Such mineral right
is
deemed to have lapsed from the date of the said notification.
As is evident from the
aforegoing, to hold a
mining authorisation
, “...it is
first necessary to hold or acquire a right to prospect and
mine(which means acquiring the common law rights),
having done so,
then one is able to obtain an authorisation for the exercise of the
right obtained.”
See Kaplan and Daleat page 80 paragraph
4.26.2.
In other words, the
prospecting results inform the question whether the mineral deposits
are vast or limited.
Section 11of the
Minerals Act deals with the duration and termination of a
prospecting
permit or mining authorisation
.
Section 11(2)
specifically provides that a holder of any
prospecting permit or
mining authorisation
can by written notification to the
Director-Mineral Development, at anytime, abandon the prospecting
permit or mining authorisation
or any portion of land pertaining to
it. The effect would then be that the prospecting permit or mining
authorisation would lapse
from the date of such written
notification. Further, section 11(3) stipulates that the aforesaid
notification ofabandonment should
be accompanied by a sketch plan
indicating the portion so abandoned.
[20]
Section 96
(3) of The
Mineral and Petroleum
Resources Development Act (MPRDA
)
Section 96
reads as
follows:
“
(1)
Any person whose legitimate expectations have been materiallyand
adversely affected or who is aggrieved by any administrative
decision
in terms of this Act may appeal in the prescribed manner to –
The Director-General,
if it is an administrative decision by a Regional Manager or officer
or
The Minister, if it is
an administrative decision by the Director-General or the designated
agency.
(2) An appeal in terms
of subsections (1) does not suspend the administrative decision,
unless it is suspended by the Director-General
or Minister, as the
case may be.
(3) No person may apply
to the court for the review of an administrative decision
contemplated in subsection (1) until that person
has exhausted his or
her remedies in terms of that subsection.
(4) Sections 6,7 (1)
and 8 of the Promotion of Administration of Justice Act 3 of 2000,
apply to any court proceedings contemplated
in this section.”
[21] The Mynbou and Trans Hex Operations raised a
point
in limine
thatthe applicant failed to appeal against the decision
of the Director-
Generalto the Minister of Mineral Resources as is
contemplated by
sections 96(1)(a)and(b) of the MPRDA and as such was not
entitled to
proceed by way of review ashe had failed to exhaust all
internal
remedies available to him. However, when the matter was
before us
theyabandonedtheir
point in limine.
Mr G L
Grobler SC intimated that the abandonment was for tactical reasons as
the appeal to the Minister was obligatory where the
Director-General
has already taken a decision. I agree. In the landmark case of
BENGWENYAMA MINERALSVGENORAH RESOURCES 2011(4) SA 113(CC)
the
Constitutional Court decided that Section 96 of the Mineral and
Petroleum Resources Development Act 24 of 2008 provides landowners
and lawful occupiers who are aggrieved by a decision to award
prospecting rights in respect of the land owned or occupied by them
with an internal appeal against that decision. Any person whose
rights or legitimate expectations have been materially and adversely
affected by any administrative decision made in terms of the Act may
appeal in the prescribed manner to the director- general of
the
department if it is an administrative decision by a regional manager
or officer; or to the minister if it is an administrative
decision by
the director-general or designated agency.
See paragraphs [50] and
[55] at 133D-F and 136A.
We are therefore at large to deal with the merits of the
application.
THE ALLEGED ABANDONMENT
The parties are in
agreement that the central issue is whether the third respondent
abandoned its mining rights by way of the
memorandum of 26 January
2001. It is prudent that I set out in full the contents of the
memorandum that the Managing director,
P D Danchin, wrote on behalf
of Trans Hex Mynbou Bpk to the Director: Mineral Development:
“
VERKLEINING
VAN RICHTERSVELD MYNHUURGEBIED: TRANS HEX MYNBOU
Trans Hex Mynbou
onderhandel reeds geruime tyd met die Richtersveld Oorgangsraad (nou
die Richtersveld Munisipaliteit) vir die be
skikbaarstelling van
verskeie stukke grond vir besproeiingsdoeleindes langs die
Oranjerivier.Oor eenkoms is nou bereik dat 13 afsonderlike
[stukke],
wat gesamentlik 363,14 hektaar beslaan, aan die Oorgangsraad
oorhandig sal word. Die stukke grond maak tans deel uit
van die
Richtersveld mynhuur wat in terme van mynhuur 2/91 aan Trans Hex toe
geken is (sien meegaande plan met koördinate).
Die stukke grond wat
uitgesluit moet word beslaan vier afsonderlike stukke in die
Swartwater/Koeskopbegied (gesamentlik ongeveer
122, 57 hektaars
groot), drie aaneenlopende stukke in die Sanddrifgebied (gesmentlik
ongeveer 24, 67 hektaar groot), een aaneenlopende
stuk in die
Stofbakkies (gesamentlik ongeveer 103, 37 hektaar groot), vier
alleenstaande stukke in die Bloeddrifgebied (gesamentlik
ongeveer
1100,94 hektaar groot), en een stuk in die Jakkelsberggebied, die
sogenaamde Reuning besproeiingsef (ongeveer 11,59 hektaar
groot).
U word dus versoekom
die 13 stukke grond, waarvan die omvang in detail deur middel van
koördinate op meegaande plan gedefinieer
word, uit die bestaande
mynhuurgebied uit te sluit, en die wysiging so by die
Mynbriewekantoor in Pretoria te laat registreer.
‘
n
Kopie’ van die oorspronklike notariele mynhuurdokument 2/91
gaan hiermee saam vir die nodige endossement. Die besluit om
die
mynhuurgebied te verklein word bekragtig deur meegaande
direksiebesluit gedateer 24 Januarie 2001.”
On examination of the
memorandum I fail to observe the words
abandon
translated in
Afrikaans to
afstanddoen
or any similar wording appearing
therein. In fact what does emerge is a request for an amendment
discerned from the following:
“
U word dus versoek om die
dertien stukke grond, waarvan die omvang in detail deur middel van
koördinate op meegaande plan
gedefinieer word, uit die
bestaande mynhuurgebied uit te sluit, en die wysiging so by die
Mynbriewekantoor in Pretoria te laat
registreer.”
Adv G L Grobler SC,
for Mynbou and Trans Hex Operations, in his heads of argument makes
the following submission:
“
The
request could not be affected unilaterally. The requested amendment
would have had to be acceded to by the Minister, because
the notarial
mining lease is a bilateral agreement between Trans Hex on the one
hand and the State on the other hand. Although
the mining lease was a
statutory grant, it was a bilateral agreement.
See
ONDOMBOBELEGGINGS V MINISTER OF MINERAL AND ENERGY AFFAIRS
[1991] ZASCA 108
;
1991 (4)
SA 718
(A) 724A-725H.
A
notarial mining lease could not be amended unilaterally...agreement
on the amendment would only have been the first step. Once
agreement
has been reached to amend the lease, such agreement would have had to
be notarially executed and registered...”
I fully endorse what
counsel propounds.
Adv R Madlanga SC, for
the Minister and the Department, submitted that the memorandum, if
viewed in totality, does not constitute
everything that the parties
intended to convey. Further that, in the circumstances of this
matter, extrinsic evidence can’t
be excluded. Of relevance Mr
Madlanga referred to what
Schreiner JA
statedin
JAGGA V
DONGES 1950(4)SA653 AD at 662H:
“
ˈThe
contextˈ, as here used, is not limited to the language of the
rest of the statute regarded as throwing light of a
dictionary kind
on the part to be interpreted. Often of more importance is the matter
of the statute, its apparent scope and purpose,
and, within limits,
its background.”
Mr Madlanga submitted
further that that dictum or proposition of law (
supra)
has
been accepted by the courts. Counsel ends off by submitting that:
“
Purposive
interpretation is appropriate, not only when the wording of the
contract is ambiguous, as in
VENTER
v CREDIT GUARANTEE INSURANCE CORPORATION OF AFRICA LTD
[1996] ZASCA 50
;
1996 (3) SA
966
(A)
,
but when the clear meaning of the words, if put into effect, would
‘nullify the essential purpose of the contract’
as in
TURNER
MORRIS (PTY) LTD v RIDDELL
1996 (4) SA 397
(E) 404H-J
.
The adoption of a purposive construction in such circumstances is
consistent with the cases on absurdity, repugnancy and
inconsistency...”Refer
to
R
HCHRISTIE, THE LAW OF CONTRACT IN SOUTH AFRICA 5
TH
EDITION
at page 214.
In terms of section 47
(1) (e) of the Minerals Act the mining lease holder, being Mynbou,
was the holder of the mining authorisation.
As such section 47 (2)
conferred upon the holder the same rights that were peculiar to a
mining lease. Thus the terms and conditions
would have remained the
same as inthe lease agreement, and as such the lease would have had
to remain in force in terms of section
47(1)(a).
As mining leases were
normally granted for the duration of economic exploitation,
termination of such a lease would only occur
as a result of a breach
or abandonment. The mining authorisation sought would be for a
period in excess of two years. Therefore
a mining licence instead of
a mining permitted would have been issued as authorisation.
See
Kaplan and Daleat page 102 paragraph 4.27.2.4
The now repealed
Minerals Act 20 of 1967 made provision for the lessee to the seek
consent of the bondholder in case of the abandonment
of such rights
either in whole or in part. Section 47 (1) (f) of the Minerals Act
does make provision for abandonment. However
this section is silent
on whether one would require the consent of the bondholder.
Kaplan and
Dale
mention that in considering abandonment a lessee will have
to take into account additional considerations as well. These would
be but limited to: whether it would amount to an earlier cessation
of the obligation to pay the shares of profits or royalties
that
would otherwise have been payable to the state;whether the lessee
was indeed the holder of the mining authorisation in terms
of
section 9 (1) (a); whether any surface or water rights which relate
to the mining rights proposed to be abandoned will have
to be
considered to ensure there is nothing in the title document, which
indicates that it will lapse on the expiry of the relevant
mining
right. Further, the relevant mineral rights would have to be perused
to observe the obligations therein arising from the
abandonment.
See
Kaplan and Dale at pages 18 and 19.
The applicant’s
counsel, Adv M A Albertus SC, argued that the letter of 26 January
2001 was a clear and unequivocal indication
that Trans Hex Mynbou
Beperk decided to excise the 13 portions of land from its mining
lease. Further, that there was a clear
indication in the said letter
that the exclusion of the 13 portions of land which formed the
subject of the mining right had
to be done from the existing mining
lease area and that an endorsement against the title deed was sought
from the Mining Titles
Office in Pretoria.Counsel further argued
that we should look at the letter of 26 January 2001 as it stands as
it is not ambiguous
and no extrinsic evidence was necessary to
conclude that the letter constitutes an abandonment. In another
breath he argues that
if the letter is ambiguous then we should look
to what preceded the letter, which would be the agreement of April
2000 between
Trans Hex Mynbou Beperk and Die Richtersveld
Oorgangsraad or Transitional Council acting on behalf of the
Richtersveld Community.
According to counsel this agreement,
specifically clause 5.3 thereof denotes that the terms of “that
particular agreement
is consonant with the letter of January 2001on
all fours.” Having used this agreement to point out what is in
favour of
his argument, he sought to persuade us not to take into
account Mr Madlanga’s reliance on clause 6 of the same
agreement,
in respect of which he argued that if properly construed
clause 6 means that Mynbou were nevertheless still preserving their
entire mining lease. Mr Albertus persisted by arguing that clause
5.3 precedes clause 6 and consequentlyregard should be had to
clause
5.3 but not to clause 6. This would clearly amount to a
contradiction in terms and I cannot endorse MrAlbertus’s
argument.
According to the
applicant the sketch plan that was submitted with the letter was
adequate in the circumstances to comply with
section 11 (3); even
though the section specifically states that it should be such that
the notification of abandonment must
be accompanied by a sketch plan
“acceptable to the Director: Mining Development”.
Mr Grobler submitted
that the letter of the 26 January 2001 could not be interpreted or
construed as having been an unequivocal
abandonment. In his
estimation the letter was merely a request to amend the terms of the
mining lease to exclude the 13 defined
portions of land from the
mining lease which they desired to make available to the
Richtersveld Transitional Council, for irrigation
purposes. This
contention is persuasive.
I cannot agree with
the applicant’s contention that the letter together with the
sketch was sufficient to constitute abandonment.
On a careful
examination of section 11(3) it is evident that there would have to
be
approval
from the Director: Mining Development on whether
the sketch attached complied with the statutory requirements and
therefore acceptable.
The approval was lacking.
R H Christie, The
Law of Contract in South Africa 5
th
Edition
at pages 437-438,
discusses the contractual nature of
abandonment and what is commonly known as waiver in these terms:
“
Grotius
3 41 7
,
as usual, is like a breath of fresh air:
‘
In
Roman Law release by way of gift required a certain form of words:
but with us, as in contracting so in discharging an obligation,
it is
enough that such words should be used as important an abandonment by
the releaser of his right, and that this should be accepted
by the
debtor or in his name.’
In
the concluding words of that passage Grotius makes an important point
which is often overlooked or obscured by our modern terminology.
When
the parties to an existing contract come together in an agreeing
frame of mind and formally or informally
1
agree to vary or discharge their contract we have no
difficulty about describing what has happened as a variation or
discharge by
agreement, or a cancellation by agreement
2
.
But when one of the parties, by his words, actions or inaction, has
evinced an intention not to enforce one or more or all of
his rights
conferred by the contract
3
we select whichever word seem most appropriate from a
list which includes abandonment
4
,
acquiescence
5
,
release
6
,
renunciation
7
,
surrender
8
,
election, relinquishing of a right
9
and waiver. Of these words by far the most commonly
used is waiver, which is regarded in many of the cases
10
as interchangeable with any of the other words.”
Innes CJ
in
LAWS v RUTHERFURD
1924 AD 261
at page
263
said:
“
The
onus is strictly on the appellant. He must show that the respondent,
with full knowledge of her rights, decided to abandon it,
whether
expressly or by conduct plainly inconsistent with an intention to
enforce it.”
As regards an inferred
waiver
Nienaber JA
said in
ROAD ACCIDENT FUND v MOTHUPI
2000 (4) SA 38
(A)
at paragraphs
[16]-[17]
thatthe test to
determine waiver is objective. The intention is thus firstly,
adjudged by its outward manifestations; secondly,
mental
reservations not communicated are of non-legal consequence; thirdly,
the outward manifestations are adjudged from the
perspective of the
reasonable other party concerned. Both parties’ evidence on
what they intended and believed at the time
may be relevant but not
necessarily conclusive.
As established above
the onus rests with the applicant to prove that abandonment took
place. The applicant’s reliance on
section 11 fails to
demonstrate that abandonment in fact occurred. How can it be said
that there was compliance with the requirements
of abandonment when
the reciprocal duty on the part of the Director: Mining Development
to accept the sketch plan was still outstanding?
This was not an
instance in which one party was at liberty to act unilaterally. I
cannot therefore agree that abandonment was
indeed effected. That
being the case, I have to conclude that even on the applicant’s
own version abandonment did not take
place.
Even if one applies
section 47 (1) (f), though this section does not make mention of
seeking the bondholder’s consent, there
are still the other
considerationsset out in paragraph [27] above that the lessee and
bondholder have to consider before an abandonment
can be confirmed.
Here again, it requires both the lessee and bondholder’s
participation. This reaffirms my conclusion
that the letter of 26
January 2001 could not have been an abandonment.
In the result I am
satisfied that the letter of 26 January 2001 does not constitute an
abandonment.
COSTS OF THE 29
APRIL 2011
The third and fourth
respondents brought an interlocutory application on 29 April 2011 at
10h00.The notice of motion thereof is
dated 28 April 2011 and was
served on the applicant’s correspondent attorneys on 28 April
2011 at 3.25pm. The basis upon
which the costs for the 29 April 2011
are sought by the third and fourth respondent’s is that the
applicant had set down
the main application on the unopposed roll
for 29 April 2011, when in fact the matter was opposed.
A notice of set down
for the hearing of the matter on the unopposed roll was received by
the respondents on 12 April 2011, advising
that the matter has been
set down for hearing on 29 April 2011. Third and fourth respondent
filed a notice to oppose on 7 September
2010. On 13 April 2011 the
respondents sought clarity telephonically and by way of
correspondence, enquiring why the applicant
had placed the matter on
the unopposed roll knowing that the respondents are opposing it.
The applicant
responded on 15 April 2011 stating that since the respondents had
not filed their answering affidavits he was entitled
to set the
matter down on the unopposed roll in terms of Rule 6(5)(f) of the
Uniform Rules of Court. Rule 6(5)(f) provides that
if an applicant
does not receive a respondent’s answering affidavit within
fifteen days after receipt of the respondent’s
notice of
intension to oppose “the applicant may within five days of
expiry thereof apply to the registrar to allocate
a date for the
hearing of the application.”
After the respondent’s
intention to defend was servedthe applicant had to provide the
respondents with the record before
the respondents filed their
answering papers. The record was served on 30 December 2010. The
applicant contendsthat the respondents
failed to file their
answering affidavits within the required period of fifteen days,
reckonedfrom 30 December 2010. Thus on
7 April 2011, the date of the
notice of set down, the registrar allocated 29 April 2011 for the
hearing of the matter.
As is evident from the
respondent’s notice dated 18 April 2011, the interlocutory
application was brought in terms of Rule
30 (2)(b). On considering
the facts that led up to the interlocutory application, can it be
said that the setting down of the
application on the unopposed role
constitutes an irregular proceeding? I am of the view that the
answer here is in the negative.
It is clear that the
respondents had filed their notice of intention to defend and were
provided with the record by 30 December
2010, they still had fifteen
court days to file their answering affidavit from 30 December 2010,
in terms of Rule 6(5)(f).
When the applicant
proceeded to set the application down on 7 April 2011 the fifteen
day period had long lapsed. In terms of the
Rules of court the
applicant was therefore entitled to seek a date for the application
to be heard.The applicant’s actions
do not, in the
circumstances, constitute an irregular step and as such the
respondents are not entitled to the costs of instituting
the
interlocutory application.On 29 April 2011 the presiding Judge did
not hear argument but merely postponed the matter
sine die
in
order that alternative dates could be arranged and reserved costs.
In light of what has
been stated above on costs I conclude that no irregular procedural
step was taken by the applicant when the
matter was set down. The
respondents would have had to appear in court on 29 April 2011 in
any event. As suchthe respondents
are not entitled to the wasted
costs for their appearance on that date.
COSTS IN THIS
APPLICATION
The costs in this
application are to follow the result.
The cost due to the
third and fourth respondents in respect of the appearance on 29
April 2011 would be costs occasioned by the
matter being postponed
sine die
and not wasted costs as claimed.Therefore these
costs would exclude costs related to the interlocutory application.
In the result the following order is made:
The review
application is dismissed with costs.
These costs are to
include the costs consequent on the employment of two counsel.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH COURT, KIMBERLEY
I concur
_________________________________
F DIALE KGOMO
JUDGE-PRESIDENT
NORTHERN CAPE HIGH COURT, KIMBERLEY
On behalf of the Applicant:
Adv ALBERTUS SC
On behalf of the 1
st
&
2
nd
Respondent:
Adv MADLANGA SC with
Adv Nobanda
On behalf of the 3
rd
&
4
th
Respondent:
Adv GROBLER SC with
Adv Geldenhuys
1
See
Tredrea v Ward
1933 GWL 16 24.
2
Eg
Meyer
and Meyer v Tainton
(1890) 4 SAR14
; Duncker v Paddon and
Brock Ltd
1903 TH 166
174;
Albu v Eloffand Witwatersrand
Land and Exploration Co Ltd
1903 TS 163
174
; Potgieter v
Jaffe
1911 EDL 397
;
Van Gelderen v Schaff
1912 CPD 76
;
Van Steepen & Germs (Pty) Ltd v Transvaal Provincial
Administration
1987 4 SA 569
(A) 588-J. Discharge of the
contract may or may not leave an arbitration clause unaffected. The
cases are reviewed in
Gardens Hotel (Pty) Ltd v Somadel
Investments (Pty) Ltd
1981 3 SA 911
(W).
3
If
there are no rights there can be no waiver, so a plea alleging the
invalidity of the contract and waiver (not in the alternative)
is
excipiable:
EK Green and CO v Adkins
1930
CPD
253.
Cf
Trans-Natal SteenkoolkorporasieBpk v Lombaard
1988 3 SA
625 (A) 640.
4
Hiddingh’s
Executors v Hiddingh’s Trustee (
1886) 4 SC 200 204.
5
Strachan
v Lloyd Levy
1923 AD 670
;
North Eastern Districts Association
(Pty) Ltd v Surkhey Ltd
1932 WLD 181
;
Dunbar v Rossmaur
Mansions (Pty) Ltd
1946 WLD 235
248-249.
6
Van
der Poel’s Executors v Malan
(1898) 15 SC 70
72;
Coronel’s
Curator v Coronel’s Estate
1941 AD 323.
7
Smith
v Momberg
(1895) 12 SC 295
;
Van Heerden v Pretorius
1914
AD 69 76.
8
Van
der Plank v Otto
1912 AD 353 364-365.
9
ABSA
Bank Ltd v The Master
1998 4 SA 15
(N) 26J-27A.
10
Van
der Plank loccit
being an isolated exception.