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[2024] ZANCHC 10
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Chief Executive Officer, Northern Cape Liquor Board v Reed (1179/2018; 731/2018) [2024] ZANCHC 10 (9 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NUMBER:
1179/2018 & 731/2018
DATE
HEARD:
12 February 2021
DATE
DELIVERED:
9 February 2024
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Regional Magistrates: YES / NO
Circulate
to Magistrates: YES / NO
In
the matter between:
CHIEF
EXECUTIVE OFFICER, NORTHERN
Applicant
CAPE
LIQUOR BOARD
And
JOSEPH
REED
Respondent
In re:
JOSEPH
REED
Applicant
And
CHIEF
EXECUTIVE OFFICER, NORTHERN
Respondent
CAPE LIQUOR
BOARD
JUDGMENT
Eillert
AJ
[1]
Almost 21 years ago, on 30 May 2003, an order was made by Tlaletsi
AJ, as he then
was, under case number 26/03, that the decision by the
Northern Cape Liquor Board to refuse Mr Joseph Reed’s
application
for a special liquor licence in respect of premises
situated in Kimberley, be rescinded, and that the application for the
special
liquor licence be referred back to the Northern Cape Liquor
Board for it to be considered afresh.
[2]
Despite the passing of considerable time, the dust has not yet
settled on the litigation
between the parties. This judgment concerns
two subsequent cases launched by Mr Reed. For ease of reference, I
will refer to the
parties as they are cited in the main applications,
i.e. to Mr Reed as the Applicant and to the Northern Cape Liquor
Board as the
Respondent.
[3]
In case number 731/2018, the Applicant sought an order compelling the
Respondent to
provide him with documents and records that would
relate to the reconsideration of the application for the special
liquor licence
by the Respondent. In case number 1179/2018, the
Applicant sought an order declaring the Respondent and/or its board
members and
officials to be in contempt of the order issued by
Tlaletsi AJ, as he then was, on 30 May 2003, failing which the
Respondent and/or
its board members and officials be committed to
such term of direct imprisonment as the court would deem appropriate
in the circumstances.
[4]
The Respondent delivered notices in terms of Uniform Rule 47 under
both aforementioned
case numbers. In terms thereof, the Applicant was
requested to furnish security in the amount of R300 000.00 in
each matter,
on the basis that, according to the Respondent, the
proceedings instituted by the Applicant are vexatious and an abuse of
process.
The Applicant did not comply with the Respondent’s
notices, as a result whereof the Respondent launched an application
under
both case numbers for the proceedings to be stayed, pending
payment by the Applicant of security for the Respondent’s
costs.
It is this application that I am called upon to adjudicate. I
will from here on out refer to this application as the stay
application.
[5]
On 17 November 2020, prior to the setdown of the stay application,
the Applicant delivered
notices of withdrawal of the proceedings
under both case numbers 731/2018 and 1179/2018. The Office of the
State Attorney, acting
for the Respondent, was duly served with the
notices of withdrawal of the proceedings. The Respondent nonetheless
proceeded with
the delivery of a notice of setdown of the stay
application, which was signed by the attorney acting for the
Respondent on 6 November
2020, provided to the Sheriff of the Court
on 9 December 2020, and served upon the Applicant on 14 December
2020. The notice of
setdown does not bear a court stamp to indicate
on what date the notice of setdown was filed at the Registrar’s
office.
[6]
At the hearing of the stay application the Applicant, acting in
person, whilst expressing
a desire for the litigation between the
parties to proceed to a hearing, persisted with the withdrawal of the
proceedings under
both case numbers against the Respondent.
[7]
The effect of the Applicant’s withdrawal of the proceedings
under both case
numbers 731/2018 and 1179/2018 is determinative of
the outcome of this judgment.
[8]
Uniform Rule 41(1) provides as follows:
“
Rule 41(1)-
(a)
A person instituting any proceedings may at any time before
the matter has been set down and thereafter by consent of the parties
or leave of the court withdraw such proceedings, in any of which
events he shall deliver a notice of withdrawal and may embody
in such
notice a consent to pay costs; and the taxing master shall tax such
costs on the request of the other party.
(b)
A consent to pay costs referred to in paragraph (a) shall have
the effect of an order of court for such costs.
(c)
If no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for an order
for costs.
”
[9]
In
De Lange v Provincial Commissioner of Correctional Services,
Eastern Cape
2002 (3) SA 683
(SECLD) Leach J (as he then was)
defined the term “proceedings” employed in Uniform Rule
41, to mean the following:
“
It certainly
seems to me to be clear that the ‘proceedings’ referred
to in Rule 41(1)(a) are those envisaged by the
Rules in which there
is a lis between the parties, one of whom seeks redress or the
enforcement of rights against the other
.”
[10]
Rule 41(1) does not create an exception or special dispensation for
interlocutory proceedings conducted
by parties during main
proceedings.
[11]
It has further been held that a person who has instituted proceedings
is entitled to withdraw
such proceedings without the other party’s
concurrence and without the leave of the court at any time before the
matter is
set down.
[1]
[12]
The proceedings under both case numbers 731/2018 and 1179/2018 have
previously been set down for hearing.
At a stage they had both been
postponed for hearing on the opposed roll but was postponed without a
return date thereafter on at
least two occasions. At the time of the
hearing of the stay application, the main proceedings under either
case number had not
been set down for adjudication again. Because
this is so, and based on the principles I have set out above, the
Applicant was entitled
to withdraw the proceedings against the
Respondent in accordance with Rule 41(1) on 17 November 2020.
[13]
The only real objection that was raised on behalf of the Respondent
against the withdrawal of proceedings
by the Applicant was that the
Respondent was not convinced that the withdrawal was genuine. Given
that the Applicant did deliver
written notices to the Respondent
wherein he stated that he is withdrawing the proceedings, and that
the notices of withdrawal
comply with Uniform Rule 41(1)(a), it is
difficult to comprehend on what basis the withdrawal could not be
considered as genuine.
The Applicant was entitled to withdraw the
proceedings, he did so in accordance with Uniform Rule 41(1)(a), and
effect must therefore
be given thereto.
[14]
In the further result, the Respondent was not entitled to proceed
with the enrolment of the stay application
on or after 14 December
2020, as the main proceedings under case numbers 731/2018 and
1179/2018 had already validly been withdrawn
on 17 November 2020.
Except for the limited purposes of the cost provisions contained in
Uniform Rules 41(1)(b) and (c), a
lis
no longer existed
between the parties. In my view the appropriate order to make at this
stage would be to strike the stay application
from the roll.
[15]
Regarding costs, I am of the view that neither party should be
awarded costs in this instance. Upon
receipt of the notices of
withdrawal of the proceedings, the Respondent should have appreciated
that it could not prosecute the
stay application any further. The
Applicant, save for filing a notice of opposition, did not oppose the
stay application, and is
also not entitled to costs. The Respondent
is not left without a remedy. The Applicant did not embody a consent
to pay costs in
his notice of withdrawal of the proceedings, and the
Respondent may therefore still apply to court in terms of Uniform
Rule 41(1)(c)
for an order for costs if it is so inclined.
Furthermore, nothing prevents the Respondent, should it still choose
to do so, to
launch new proceedings against the Applicant for
appropriate relief on the basis contended for, that the Applicant
should be found
to be a vexatious litigant.
[16]
In the result I make the following order:
1.
The Respondent’s application for a stay of proceedings under
case numbers 731/2018 and 1179/2018 is struck
from the roll;
2.
No cost order is made.
A
EILLERT
ACTING
JUDGE
For
APPLICANTS :
MR
RABIE
KIMBERLEY
For
RESPONDENT :
ADV
MOTLOUNG
KIMBERLEY
[1]
Franco Vignazia Enterprises (Pty) Ltd v Berry
1983 (2) SA 290
(C)