About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2012
>>
[2012] ZAKZPHC 75
|
|
Class A Trading 6099 (Pty) Ltd v Minister of Rural Development and Land Reform (10234/11) [2012] ZAKZPHC 75 (5 December 2012)
IN THE KWAZULU–NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No. 10234/11
In the
matter between:
CLASS A
TRADING 6099 (PTY) LTD
....................................................................
Applicant
and
MINISTER
OF RURAL DEVELOPMENT
AND
LAND REFORM
.........................................................................................
Respondent
J U D G M E N T
KOEN,
J
:
[1] In the Notice of Motion dated 28 October 2011, the applicant
claimed the following relief:
‘
1.
That the applicant’s
failure to comply with the time limits and forms as provided for in
the rule 6 be and is (sic) hereby
condoned and that the matter be
enrolled and heard as a matter of urgency.
2.
That a rule
nisi
do
hereby issue calling upon the respondent and all other interested
parties to show cause before this Honourable Court on the
day of 2011
at 09h30 or as soon thereafter as the matter may be heard why an
order in the following terms should not be made:-
2.1 That respondent be and is
hereby interdicted from taking any further steps in the process of
allocating the farms Portion 15
of Spioenkop No 283, Portion 1 of
Rondefontein, No 307, Remainder of Kromdraai No 306, Remainder of
Dummy No 308, Portion 2 of
Nooitgedacht No 309 and Portion 4 of
Nooitgedacht No 309 to a beneficiary or beneficiaries in terms of
respondent’s Land
Reform and Rural Development programme.
2.2 That respondent comply with
its obligations in terms of section 5 of the Promotion of
Administrative Justice Act, Act 3 of 2000
and provide reasons to
applicant for holding applicant’s application to be allocated
the farms mentioned in paragraph 2.1
above to be unsuccessful.
2.3 Costs of this application.
3.
That paragraph 2.1 above
operates as an interim interdict subject to the provisions of
paragraph 4 below.
4.
That applicant be directed to
institute review proceedings to set aside the non- allocation of the
farms mentioned in paragraph
2.1 above within 21 (twenty one) days of
respondent complying with its obligations in terms of section 5(2) of
the Promotion of
Administrative Justice Act, failing which the
interdict will lapse.
5.
Granting
applicant further and/or alternative relief.’
[2] By the time the applicant filed its replying affidavit, amended
relief was sought. When the matter was argued and ’an
amended
order prayed’ was handed up from the bar setting out the relief
claimed. The only relief persisted with is:
‘
1.
That pending the outcome of the
review proceedings contemplated in paragraph 2 hereof, the respondent
be and is hereby interdicted
from implementing any decision relating
to the allocation of the farms Portion 15 of Spioenkop No 283,
Portion 1 of Rondefontein
No. 307 Remainder of Kromdraai No 306
Remainder of Dummy No 308, Portion 2 of Nooitgedacht No. 309 and
Portion 4 of Nooitgedacht
No 309, or any other designated farm in the
Kokstad area to a beneficiary or beneficiaries in terms of the
respondent’s Land
Reform and Rural Development programme or the
respondent’s pro-active land acquisition strategy.
2.
That the applicant be and is
hereby directed to institute the review proceedings to set aside the
allocation alternatively the non
allocation of the farms mentioned
above within 21 days of the grant of this order.
3.
That
the respondent is directed to pay the costs of this application, such
costs to be paid on the attorney and client scale.’
[3] The application was launched on the basis that the applicant
wished to avail itself of the benefits of the respondent’s
land
redistribution for agricultural development programme, and had
submitted an application to that effect to the respondent.
The
application related to the farm comprising the properties above,
commonly referred to as ‘Grove Park’.
[4] The applicant, represented by the deponent to the founding
affidavit, had attended a number of briefing sessions on the farm
and
attended an interview at the regional offices of the respondent in
Pietermaritzburg. By October 2011 he states that he had
‘every
reason to believe that it was simply a matter of a few weeks before
my application to lease the farm property in question
would be
successful’. The applicant had invested approximately two
million rand in capital equipment and had entered into
a suspensive
sale agreement to take over about 450 cattle from the seller.
[5] On 13 October 2011 the deponent however received a letter from
the respondent, being annexure ‘BN6’ to the founding
affidavit, advising that his application for the lease of the farm
had been unsuccessful. This letter, which is dated 12 October
2011
signed by a Ms Zandile Khumalo, who described as the ‘Acting
Deputy Director: Port Shepstone District Office’,
stated:
‘
APPLICATION
TO LEASE FARM STIOENKOP (sic)
Your application to lease the
above property refers.
It is with regret to inform you
that your application has been unsuccessful.
Your profile will be kept on the
data base of the potential lessees and you will be considered if
there are other farms available’.
[6] No reasons or grounds for the aforesaid decision were stated.
[7] The applicant responded by on the same day addressing a letter to
the Deputy Director of the respondent’s department
giving until
the close of business on the 17 October 2011 to confirm that the
deputy director ‘withdraw any letters issued
or about to be
issued to successful applicant(s)…’.
[8] No reply was received and all subsequent attempts to contact the
relevant officials at the respondent’s offices either
at Port
Shepstone or Pietermaritzburg proved unsuccessful. A meeting was
arranged in Pietermaritzburg for 19 October 2011, but
cancelled by
the respondent thirty minutes before the start.
[9] On 1 November 2011, the day the application was set down for
hearing, the respondent however provided an undertaking not to
appoint any beneficiary in respect of the farm in question pending
the finalisation of the application. The undertaking from the
State
attorney was in the following terms:
‘
Pursuant
to the discussions held between the legal representatives at Court,
the Department hereby gives the undertaking not to
appoint any
beneficiary in respect of the farm in question pending the
finalisation of this application. However, we point out
that the
Department will appoint a care taker to look after the farm until the
matter is resolved’.
[10] The respondent subsequently delivered an answering affidavit
deposed to on 15 December 2011. In that affidavit it is stated
that:
(a) the letter from the acting deputy director of the Port Shepstone
district office was issued ‘in error and this error
was
bona
fide’
;
(b) only the selection committee can approve the allocation of
leases;
(c) the selection committee is accountable to the chief director of
the Department’s office in the particular province;
(d) the author of the letter had no authority or power to issue the
letter, which therefore was issued in violation of the principle
of
legality.
1
(e) no decision had as yet been made by the selection committee as to
which of a number of applicants was to be allocated the farm
in
question for the purpose of leasing such farms.
[11] Accordingly, the respondent states that there is no decision to
be reviewed, and accordingly there are no reasons it can deliver
as
requested, and that, in those circumstances, the review application
was premature.
2
[12] On the aforesaid facts, on the accepted test in
Plascon Evans
Paints (Pty) Ltd v Van Riebeeck Paints
3
,
this application falls to be decided on the basis that no decision
has yet been taken on the applicant’s application. Accordingly,
the application for review would indeed be premature and should be
dismissed.
[13] I have however been urged by the applicant to find that the
respondent’s allegations that no decision has been taken,
are
equivocal, and that its statement that no decision has been taken
should not be accepted.
[14] The applicant contends that although the answering affidavit
records
4
that ‘the fact of the matter is that no decision has yet been
made by the Selection Committee as to which Applicant is to
be
allocated the farm in question for the purpose of leasing them’,
the deponent thereto further on states
5
that:
‘
Furthermore, I point out that
by virtue of these allegations the Applicant is now on its version
aware of the beneficiary allocated
the farm and still the Applicant
has not joined the beneficiaries who have been allocated the farm who
according to the applicant
are Daxicab CC and Themba Qha Agricultural
Cooperative’.
This statement was in answer to the allegations in the applicant’s
supplementary affidavit where it was stated that he had
attended the
Eskom offices in Kokstad on 15 November 2011 and had had sight of
forms confirming the transfer of the Eskom services
from the former
farmer in question into the name of beneficiaries, three new accounts
for services having been created in the name
of one of the allocated
beneficiaries Daxicab CC with two deposits having been paid by them
and another beneficiary Themba Qha
Agricultural Cooperative having
completed forms and submitted them to Eskom, which was still
processing the application.
[15] The aforesaid statement relating to the alleged non joinder,
properly construed, does not detract from the statement that
no
decision has as yet been taken. Although perhaps inelegantly phrased,
what was sought to be conveyed clearly was that if it
was the
applicant’s version that the farm had indeed been allocated to
these beneficiaries, then on the applicant’s
version they
should have been joined as interested parties. The respondent’s
version in the answering affidavit is unequivocal
that no decision
has been taken allocating the farm to anyone, including these alleged
beneficiaries.
[16] The applicant was of course understandably under the impression
initially after receipt of annexure ‘BN6’ that
a decision
had been made and therefore beneficiaries determined. It might even
have been distrustful of any initial suggestion
that the offending
letter was written in error, because of what it allegedly discovered
at the offices of Eskom. But the objection
raised here by the
respondent was a technical one relating to a possible non joinder
based on the applicant’s version. It
would however simply be of
no substance and fall away in the light of the respondent’s
case in the answering affidavit that
no decision had been taken,
which version prevails where the applicant has elected to argue the
matter on the papers.
[17] In the alternative to the above argument relating to its
distrust that no decision had been taken, the applicant argued that
the respondent’s failure to have allocated the farms since
having received the applicant’s application during the latter
part of 2011, should be reviewed.
[18] The applicant’s heads of argument deal comprehensively
with the authorities establishing the constitutional imperative
that
administrative decisions of this nature should be taken
expeditiously.
[19] The respondent’s objection to any review being sought on
the basis of an alleged delay or failure to have taken a decision
is
that this was not the case pleaded by the applicant. Accordingly, the
respondent was never afforded an opportunity to respond
thereto.
There was also no prior request for the respondent to provide reasons
as to why no decision had been taken by the respondent.
In short the
complaint is that this alternative basis for review and the factual
basis on which it might be sought, was never raised
in the papers and
that it was now raised for the first time in the applicant’s
heads of argument.
[20] It is trite law that an applicant is required to identify
clearly both the facts upon which it basis its cause of action and
the legal basis for any cause of action
6
in its founding papers.
[21] The respondent’s objection is well founded. Until the
answering affidavit was delivered, which appears to have been
on or
about the 15 December 2011,
7
the applicant was entitled to persist with its application. But
thereafter the application should not have been persisted with.
[22] There is no decision yet to review. No basis has been laid in
the founding papers for reviewing the failure to take a decision,
or
for reviewing any delays which might have followed after the
applicant’s application was submitted.
[23] Accordingly, the applicant has not on the papers made out a case
for the interdict claimed. However, based on the erroneous
letter, it
was justified initially to bring the application and to have
persisted therewith until the answering affidavit was delivered
and
it could take instructions in regard thereto not to persist with its
application.
[24] As regards costs, the applicant should not be out of pocket for
having brought an application based on an erroneous letter
addressed
to it on behalf of the respondent. In the exercise of my discretion I
determine that the respondent should pay the applicant’s
costs
of the application on the attorney and client scale up to and
including receipt of the respondent’s answering affidavit
and
the applicant obtaining advice thereon. Thereafter, the applicant’s
persistence with the application, having regard to
the factual basis
on which it was premised, became untenable in law. The applicant must
pay the respondent’s costs of the
application from that date.
[25] The order I grant is accordingly as follows:
1. The application is dismissed.
2. The respondent is directed to pay the applicant’s costs of
the application on the attorney and client scale up to and
including
the delivery of the respondent’s answering affidavit and the
applicant obtaining legal advice in regard thereto.
3. The applicant is directed to pay the respondent’s costs of
the application subsequent to the filing and service of the
answering
affidavit and the applicant obtaining legal advice in regard thereto.
__________________________
DATE OF HEARING: 20 NOVEMBER 2012
DATE DELIVERED: 5 DECEMBER 2012
APPLICANT’S COUNSEL: ADV. A A GABRIEL S C
APPLICANT’S ATTORNEYS: GARLICKE & BOUSFIELD INC
C/O VENN NEMETH & HART
Ref: D Schaup
RESPONDENT’S COUNSEL: ADV TSI MTHEMBU
RESPONDENT’S ATTORNEYS: STATE ATTORNEY
Ref: Ms S Naidoo
C/O CAJEE SETSUBI CHETTY INC.
Ref: A Essa
1
Pharmaceutical
Manufacturer association of South Africa, In re:Ex parte President
of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA
674
(CC) para
20.
2
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd: Chairman,
State Tender Board v Sneller Digital (Pty) Ltd and
Others
2012 (2) SA 16
(SCA).
3
[1984] ZASCA 51
;
1984
(3) SA 623
(A).
4
At
paragraph 37 of the respondent’s answering affidavit.
5
At
paragraph 65 of the respondent’s answering affidavit, which is
a response to paragraph 6 of the applicant’s supplementary
affidavit dated 16 November 2011.
6
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 25.
7
That
is the date the answering affidavit was deposed to.