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2024
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[2024] ZAECELLC 22
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Total Energies Brite Star Station (Pty) Ltd and Another v Department of Mineral Resources & Energy and Others (1524/2013) [2024] ZAECELLC 22 (5 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT LOCAL COURT)
NOT
REPORTABLE
CASE
NO. 1524/2013
In
the matter between:
TOTAL
ENERGIES BRITE STAR STATION
(PTY)
LTD
First
Applicant
KANYA
MDAKA
Second
Applicant
And
THE
DEPARTMENT OF MINERAL RESOURCES
&
ENERGY
First
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
Second
Respondent
THE
MINISTER OF THE DEPARTMENT OF
MINERAL
RESOURCES & ENERGY
Third
Respondent
SPARGS
SELLA YEMOTO (PTY) LTD
Fourth
Respondent
ENSPA
TRADING COMPANY (PTY) LTD
Fifth
Respondent
RULING
AND BRIEF REASONS IN RESPECT
OF
PRELIMINARY ISSUES RAISED BY THE
FOURTH
AND FIFTH RESPONDENTS
AT
THE HEARING OF THE APPLICANTS’
RULE
30A (2) APPLICATION TO STRIKE OUT
THEIR
DEFENCE IN THE REVIEW APPLICATION AND
TO
ENTER DEFAULT JUDGMENT AGAINST THEM
HARTLE
J
[1]
The
applicants apply on the basis provided for in Rule 30A (2) of the
Uniform Rules of Court for an order striking out the fourth
and fifth
respondents’ defence “
against
the applicants’ claim
”,
which can only be a reference to the main application for review
(“the review application”), and for “
default
judgment, as set out in the Draft Order, in the absence of other
opposing parties in the matter
”.
No draft order has been provided but the implication is clear that
the applicants purport by their notice, if they
succeed with the
relief to strike out their defence, to simultaneously seek default
judgment against all the parties in the review
application whereas
the fourth and fifth respondents have in effect been cited only as
interested parties in the review application.
[1]
[2]
The “
other
”
parties against whom this significant relief is being sought have
evidently not been served in terms of rule 4 (1)(a) read
with
sub-rule (9) of the Uniform Rules of Court. This impacts the
fourth and fifth respondents in that they are being drawn
into
interlocutory proceedings that depend for their existence on the
vitality of legal proceedings that for the moment appears
to be
inchoate without proper service of the initiating documents on the
primary parties in the review application.
[2]
[3]
That was one of the fourth and fifth respondents’ preliminary
objections raised at the putative hearing of the interlocutory
application before me on 2 April 2024 concerning why I should refuse
to hear the application and strike it from the roll.
[4]
The second objection arises in the fact that Griffiths J issued a
case management order on 26 January 2024 pursuant to a case
management conference in which he directed that certain fundamental
issues going to the standing of the applicants and to the
jurisdiction of this court first be decided before the merits of the
review application are dealt with. More specifically he
directed that all other issues “
in these matters
”
are stayed pending finalization of the specific sub-issues outlined
in his directive. Quite evidently these outlined
issues will be
dispositive of the review application itself and any matters
tangential thereto if the court finds against the applicants
on the
listed aspects.
[5]
For this reason, the fourth and fifth respondents argue that the
case
management order stands in the way of this court hearing the
interlocutory application which was commenced before the case
management conference. In other words, the present application
is one of “
those matters
” that are to be stayed.
[6]
The third preliminary objection is that the contested application
has
been enrolled for hearing during the present court recess whereas
paragraph 15 (i) of the practice directions of this court
envisage
that no opposed applications (except rule 43 applications) shall be
heard during recess, that is “
not without good cause or
sufficient urgency being shown
” why the converse should
apply.
[7]
The test whether the proviso should be resorted to must be determined
against the peculiar history of the present matter. The applicants
initially purported to enrol the same application in December
2023
during recess when Stretch J was on duty (as an urgent application)
and again before me on 9 January 2024 (as an ordinary
but opposed
interlocutory application) while I was on recess duty. I struck
the matter from the roll for the exact same want
of good cause or
exigency and offered the second applicant the opportunity to rather
try and resolve the various side issues that
had emerged by then by
way of a case management conference before a judge in chambers.
[8]
Whilst
being alive to the fact that the applicants thereafter purported to
enrol the application on the unopposed roll during term
(I believe on
the appropriate roll),
[3]
the
second applicant again sought to inveigle his way in during the
present recess amidst an incredibly busy unopposed motion court
roll
[4]
and took up at least an
hour of the court’s time during which I entertained a hearing
ultimately of only the preliminary
objections raised by the fourth
and fifth respondents concerning why I should not hear the matter.
[9]
In seeking
to circumnavigate his way around Griffiths J’s order, the
second applicant adverted to an application for leave
to appeal
thereagainst which he filed with the Registrar on 19 February 2024,
contending that by its mere filing the operation
and execution as it
were of the case management order is suspended pending the decision
of Griffiths J in respect of the applicants’
application for
leave to appeal. As far as he is concerned, recess aside, the
stay imposed by Griffiths J does not impair
him whatsoever from
proceeding with the present application.
[5]
[10]
The second applicant also relied upon the claimed inherent urgency of
the environmental
matters implicated in the main application as a
reason for enrolling the opposed interlocutory application in the
midst of the
Easter recess.
[11]
It surprised me to learn during the present proceedings (gleaned from
in excess of six
hundred pages on the court file that I was obliged
to read to appreciate the context of the interlocutory application)
that the
initiating process has not been served on the primary
parties in accordance with the peremptory rules of this court.
Before
that happens there appears to me to be absolutely no point in
countenancing the side spats between the parties in the present
application
or any other of the numerous interlocutory applications
that have since been issued out by the applicants in the matter.
[12]
Leaving aside the fact that the utility for and relevance of the
present interlocutory
application hangs on the vitality of the main
proceedings, that is the review application, there is in my view
merit in the concern
that a present day hearing of the interlocutory
application compromises the interests of the first three respondents
who have not
been served and who may well want to avert any default
judgment being granted against them (sic) especially in circumstances
where
they will notably be “
absent
” at any hearing
that ensues and likely be at the receiving end of an adverse order
implicating their vital interests.
[13]
As for the status of the applicants’ purported application for
leave to appeal against
Griffiths J’s order, the nature of the
order sought to be appealed against is akin to that of an
interlocutory order which
is different than a final order as
envisaged in
section 18
(1) of the
Superior Courts Act, No. 10 of
2013
.
[14]
An application for leave to appeal against Griffith J’s order,
if it is even appealable
on its own merit as a case management
directive, would not in my opinion suspend its operation pending the
decision of the application
for leave to appeal, or an appeal
thereagainst as the case may be. This is because
section 18
(2)
of the
Superior Courts Act provides
as follows:
“
(2)
Subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision
that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for leave to appeal or
of an appeal, is
not
suspended pending the decision of the application or appeal.”
(Emphasis
added)
[15]
But even if
I am wrong in classifying the case management order in this manner,
the second applicant’s argument that the filing
of his
application for leave to appeal should in the meantime scupper the
objective of Griffiths J’s order (which is to preclude
the very
pursuit of the present application) does not assist them because the
notice of application for leave to appeal was filed
out of time.
Even if only by one day, the late lodging of the application will
require to be condoned before it gains any
traction on the basis
envisaged by
section 18
(1) of the
Superior Courts Act,
[6]
if the latter provision applies at all in these circumstances as I
have observed above.
[16]
But whether the purported application for leave to appeal against the
case management order
of Griffiths J is pursued or not, it is in my
opinion inimical to the objectives of case management to have the
operation of orders
made by judges in their capacity as judicial case
managers held in limbo pending obstructive challenges against them
such as in
the present situation. These orders are essential to
the management of the court’s resources, the effective running
of its institutional business and the expeditious resolution of
disputes in as short a time as possible. Amended
rule 30A
(1)
provides a mechanism whereby to enforce case management orders or
directions but not much thought has been given to what happens
if a
party has any real objection to their validity or otherwise. In
my own experience differences have been sorted out between
legal
representatives practically, or by the parties appearing before me
again to have orders revised. Even though the 2
nd
applicant appears in person he is equally bound by the essential
objectives of case management and should adopt a pragmatic approach
rather than a technical complicated one involving the parties in all
sorts of tangential interlocutory application and unnecessary
point
taking.
[17]
Once the review application has been served per sheriff and all
parties are properly before
the court and upon its ultimate enrolment
there is no reason why the applicants cannot raise their objection
against the proposed
separation of issues at that juncture (making it
unnecessary to challenge the order of Griffiths J on appeal) although
I anticipate
that a court will permit the fourth and fifth
respondents to assert their preliminary objections raised in the
review application
before dealing with the merits of the proposed
review application. It is to my mind a simple matter of logic.
If this approach
does not appeal to the parties perhaps they should
consider agreeing to abandon the case management order and leave it
to the reviewing
court to decide what approach is to be adopted at
the ultimate hearing, that is assuming that the proceedings are
regularised by
proper service in the short term.
[18]
Applications are not in the ordinary course subject to case
management but a special dispensation
was afforded to the second
applicant in this instance because he appears in person.
Evidently, though he has little regard
for the judge’s
authority in this respect and even less concern for the interests of
the parties against whom he is litigating.
This court will
however not countenance such unfair play in the litigation.
[19]
As for the supposed urgency, it hardly lies in the mouth of the
second applicant to complain
when he has himself been the cause of
the delay and has ignored two clear intimations to him by this court
before that the hearing
of the interlocutory application is not
sufficiently urgent to be heard during recess. Despite having
had his application
struck off the roll before for exactly the same
reason, he yet persists in getting his own way.
[20]
I am satisfied that the preliminary objections raised by the fourth
and fifth respondents
to the applicants’ interlocutory
application have merit on all the bases relied upon by them, but for
the primary reason
that the review application is inchoate and the
secondary reason that a hearing of it during recess is not warranted,
I am in agreement
with them that it is appropriate to strike the
matter from the roll.
[21]
As for the
issue of costs, it hardly seems appropriate that the second applicant
should insist on a recourse to the “
Biowatch
-principle”.
[7]
The principle established by the Constitutional Court in that matter
can have no application in a scenario such as the present.
Further, until the court determines the issue of the second
applicant’s standing to represent the first applicant, he is
to
be held liable to pay for wasted costs of the enrolment of the matter
on the first applicant’s behalf in addition to such
costs
incurred in his personal capacity in this respect.
[22]
In the result I issue the following order:
1. The
applicants’ interlocutory application is struck from the roll.
2. The
second applicant in his personal capacity is directed to pay the
costs of the application.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
2
April 2024
DATE
OF JUDGMENT
5
April 2024
Appearances:
For
the applicants:
Mr.
K Mdaka in his personal capacity and purporting to represent the
first applicant, Ngcobo.
For
the fourth and fifth respondents:
Mr.
C Wood instructed by Drake Flemmer & Orsmond, East London
(ref. Mr. Pringle).
[1]
There
is other amorphous relief being sought against the fourth and fifth
respondents in the main application but that is neither
here nor
there for present purposes.
[2]
The
applicants are seeking condonation for this failure in a separate
interlocutory application but it is in my view an application
doomed
from the outset as the service provisions in
rule 4
are peremptory.
Despite having been aware of the fourth and fifth respondents’
objection to this deficiency from
the inception the second applicant
has yet to instruct the sheriff to serve the papers on all the
parties.
[3]
See
Amended Joint Rule of Practice 15 (c) read with 15 (b).
[4]
There
were 90 matters enrolled for hearing on the unopposed motion court
roll on 2 April 2024.
[5]
The fourth and fifth respondents have contrariwise stood back in
asserting their rights raised in their separate interlocutory
application in terms of
rule 7
read with
rule 30A
(1), on the
understanding that these issues will be dealt with as preliminary
issues before the hearing of the review application
as envisaged by
Griffiths J in his case management order.
[6]
See
Panayiotou
v Shoprite Checkers (Pty) Ltd and Others
2016 (3) SA 110
(GJ)
which confirms the need to revive an appeal process that is out of
time by an appropriate application for condonation before
it can
have the effect of suspending the operation of a judgment within the
meaning contended for in
section 18
(1) of the
Superior Courts Act.
[7
]
Biowatch
Trust v Registrar Genetic Resources & Others
2009 (6) SA 232
(CC).