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[2024] ZAMPMBHC 3
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NAD Property Income Fund (Pty) Ltd and Another v Tivane and Others (2692/2022) [2024] ZAMPMBHC 3 (24 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 2692/2022
(1)
REPORTABLE:
Yes
(2)
OF INTEREST TO OTHER JUDGES:
Yes
(3)
REVISED.
DATE:
24 January 2024
SIGNATURE
In
the matter between:-
NAD
PROPERTY INCOME FUND (PTY) LTD
First
Applicant
ERF
6 HIGHVELD TECHNO PARK INVESTMENT (PTY) LTD
Second
Applicant
and
NELSON
WISANE TIVANE
First Respondent
ELEGANT
FUEL (PTY) LTD
Second Respondent
THE
BUSH BUCK RIDGE LOCAL MUNICIPALITY
Third Respondent
THE
MPUMULANGA PROVINCIAL GOVERNMENT
DEPARTMENT
OF AGRICULTURE, RURAL DEVELOPMENT,
LAND
AND ENVIRONMENTAL AFFAIRS
Fourth Respondent
THE
MINISTER OF ENERGY FOR THE REPUBLIC
OF
SOUTH
AFRICA
Fifth
Respondent
THE
CONTROLLER OF PETROLEUM PRODUCTS
IN
THE NATIONAL DEPARTMENT OF ENERGY
Sixth Respondent
JUDGMENT
GREYLING-COETZER
AJ
Introduction
[1]
This matter relates to two interlocutory
applications emanating from a main review application, launched by
the applicants in terms
of Rule 53 of the uniform rules of court.
[2]
The first interlocutory application is
brought by the applicants in terms of which they seek the third
respondent, Bushbuckridge
Local Municipality (“the
Municipality”), to be compelled to comply with Rule 53(1)(b) by
filing the record of proceedings
sought to be reviewed and set aside
(“application to compel”).
[3]
The
second interlocutory application is launched by the second
respondent, and termed “
Conditional
application and counter application for separation and enrollment of
point of law in terms of Rule 6(5)(B)(iii)
”
(“separation
application”).
[1]
[4]
The second respondent seeks enrollment and
disposal of its question of law set out in a Rule 6(5)(d)(iii) notice
filed prior to
the application to compel. It consequentially seeks,
the main review application and final interdict be “
struck
down
”
.
[5]
The application to compel only seeks relief
against the third respondent. The Municipality has not opposed the
application to compel.
The second
respondent opposes the application to compel.
This
separation application is opposed by the applicants.
[6]
During the hearing it
became evident that although the applicants filed a complete bundle
also containing the separation application,
the second respondent
sought to refer and rely on the main review application during its
address. The latter was not before court.
Consequentially, and in
order to ensure no further delays in the hearing of the matter, it
was agreed that argument would be received,
whereafter and by no
later than 26 October 2023, a complete set of the papers would be
delivered to court for consideration before
a determination was made.
Said was duly done.
Background
[7]
The applicants’ review application,
being the main application, was brought on 28 June 2022, and
comprised of two parts. In
respect of Part A, the applicants sought
urgent interdictory relief.
[8]
Part A of the main review application (“the
urgent interim interdict”) was granted on 25 July 2022 against
the first-
and second respondents. The first- and second respondents
applied for leave to appeal, which was refused by the court on 17
August
2022. Dissatisfied, the first- and second respondents
approached the Supreme Court of Appeal for leave to appeal, which
application
was similarly dismissed approximately one year later in
2023. The second respondent has now approached the Constitutional
Court
in respect of leave to appeal, which application is still
pending.
[9]
In Part B, of the application, paraphrased,
the applicants seeks the review and setting aside of:
9.1
the development permit, rezoning approval
or consent use approval, purportedly issued by the Municipality on 20
June 2017;
9.2
the issuing, if any of environmental
authorization by the fourth respondent in favor of the first
respondent and/or second respondent,
in terms of Section 24 of the
National Environmental Management Act, 107 of 1998 (“NEMA”);
9.3
the issuing of site and retail licenses by
the sixth respondent, sanctioned by the fifth respondent in terms of
the Provision of
Petroleum Products Act, 120 of 1977 (“PPA”)
and the regulations thereto, purportedly lodged on 4 February 2018
and
issued during 2018, and
9.4
consequential relief to the review and
setting aside of aforementioned, that the first- and second
respondents be interdicted from
constructing any buildings, as
defined in the National Building Regulations and Building Standards
Act, 103 of 1977, on the subject
property until such time as valid
and lawful land use rights, contemplated in the Spatial Planning and
Land Use Management Act,
16 of 2013 (“SPLUMA”),
environmental authorization (as contemplated in NEMA), site and
retail licenses (as contemplated
in the PPA) and duly approved site
development and building plans (as contemplated in the National
Building Regulations and Building
Standards Act, 103 of 1977) have
been procured.
[10]
The applicants’ review application is
inter alia
and succinctly set out founded thereupon that they are respectively
the owners of the property and business operated as Puma Filling
Station which commenced during March 2021. Said filling station is
located on the R40 national road that runs in a North/South
direction
through Acornhoek.
[11]
During May 2022 the applicants noticed that
the first- and/or second respondents have commenced with the
construction of a filling
station on Stand 295, Tsakane, Acornhoek.
The property is located immediately to the West of the R40,
approximately 1,5km to the
South of the intersection between the R40
and Thulamahashe provincial road and approximately 2,4km from the
Puma Filling Station.
[12]
According to the applicants, interested and
affected parties and the general community, that will be impacted by
the establishment
of a filling station, are notified of the
applicable processes and invited to participate in the said processes
by submitting comments
or objections as contemplated in the
legislation concerned. This, according to the applicants, is required
when application is
made for land development authorization, such as
rezoning, environmental authorization or the issuing of site and
retail licenses.
The applicants they were thus denied the opportunity
to consider the applications, inclusive of town planning motivation,
consideration
of impact on the environment and feasibility studies
showing the impact on their filling station, as prescribed by law and
as is
standard practice in the industry.
[13]
Pursuant to their investigate into the
matter. They obtained a copy of the “
consent
use permit for a filling station
”.
Said permit contained various conditions,
inter
alia
that a site development plan had
to be submitted before 20 June 2018, failing which approval would
lapse, environmental authorization
was to be obtained from the fourth
respondent, consent was to be obtained from SANRAL, and that the
respondents were bound to apply
for a business license.
[14]
The applicants
contend that far as the land use planning “consent” (a
permit) was historically issued, such consent
or permit would have
lapsed by virtue of non-compliance with applicable conditions.
Further, should such consent or permit still
exist, the granting
thereof will be reviewable, as (a) the scheme does not make provision
for filling station rights to be granted
on land zoned as
agricultural by way of an application for consent use/application for
a permit; (b) Section 2(2) of SPLUMA prohibits
the procurement of
land use rights by application of any parallel mechanism that is
inconsistent with the provisions of SPLUMA
and the applicable bylaw;
(c) no, alternatively inadequate, public participation procedures
were embarked upon by the respondents,
and the applicants were not
afforded an opportunity to comment or object to the application
concerned.
No SANRAL consent nor
environmental authorization could be found.
The
construction of buildings currently undertaken on the subject
property are unlawful, as neither a site development plan nor
building plan, as contemplated, has been approved.
It
was established that a site and retail license in terms of the PPA
was issued, but no notice in this respect was given to the
applicants.
[15]
Founded on a report by Design Engineering
Solutions, a company that specializes in determining the economic
viability and sustainability
of filling stations and the like, the
applicants contend the unlawful filling station of the first- and
second respondents will
have a devastating negative impact on filling
station operations conducted by the second applicant.
Facts leading up to
these applications
[16]
The present two interlocutory applications
emanate from Part B of the main review application.
[17]
The main review application was served on
the third respondent on 28 June 2022, and the third respondent was
accordingly obliged
in terms of Rule 53 to file the record of
proceedings by 19 July 2022.
[18]
The first-, fifth- and sixth respondents
have complied with their obligations in terms of Rule 53(1)(b).The
fourth respondent, in
its reply, contends that no record exists
and/or that it does not have any record in its possession. The fifth-
and sixth respondents
filed a complete record of proceedings on 3
October 2022.
[19]
Pursuant to the expiry of the period within
which to file the record in respect of the Municipality,
correspondence was addressed
to its legal advisor on 5 September
2022, affording the third respondent 7 (seven) days within which to
file the record, failing
which the applicants indicated that they
would proceed with an application to compel. A further letter was
addressed to the Municipality
on 19 September 2022. No response
whatsoever was received from the Municipality.
[20]
On 16 September 2022 the second respondent
served a notice in terms of Rule 6(5)(d)(iii) indicating its
intention to raising a question
of law. The said notice reads as
follows:
“…
2
nd
Respondent hereby raises the following question of law:
1.
The application – being the notice of motion read with an
affidavit filed in support thereof – does not disclose any
cause of action as required by Rule 53(2)
;
2.
The application is accordingly to be struck down with costs
.”
[21]
The application to compel was served on the
Municipality on 14 October 2022.
[22]
On 18 October 2022 the second respondent
served its separation application. Said application comprises of a
notice of motion and
an affidavit, which stands as founding affidavit
relating to the separation application, as well as the answering
affidavit to
the applicants’ application to compel.
[23]
On 22 October 2022 the second respondent
filed an application to the Judge President for a special allocation
to be made in order
to facilitate the hearing and determination of
the point of law. Aforesaid was followed up by communication directed
to the Judge
President on 1 November 2022. From that before court it
appears that no such special allocation was granted.
[24]
The parties proceeded to exchange
affidavits and on 25 April 2023, and in line with the practice
directive of this Division, the
application to compel and the
separation application were enrolled for hearing.
Issues for
determination
[25]
The issues for determination are:
25.1
Whether the second respondent is entitled
to a separation of its Rule 6(5)(d)(iii) notice, raising a question
of law;
25.2
If found that the second respondent is
entitled to a separation, whether the applicants have failed to set
out a cause of action
in terms of Rule 53(2), on the grounds alleged
by the second respondent;
25.3
In the event that it is found that no cause
of action has been set out, whether the main review application
stands to be “
struck down
”;
25.4
If found that the second respondent is not
entitled to the separation, it stands to be decided whether the
applicants have made
out a case to compel compliance with Rule
53(1)(b) in respect of the municipality.
The separation
application
[26]
The second respondent contends that
although there is no specific provision in motion proceedings for the
separation of issues,
it is a matter within the inherent jurisdiction
of a court. Further that a separation of issues is a matter of
convenience, efficiency
and the interest of justice. The second
respondent contends that the court need not further engage itself
with the application
to compel against the Municipality as the
applicants’ review application failed to disclose a cause of
action.
[27]
In persuading this court to grant the
separation the second respondent contends that the determination of
the question of law as
raised in its Rule 6(5)(d)(iii) notice will
dispose of the whole matter, thereby avoiding huge and reckless
wastage of precious
time and costs. Its contended that there is no
indication when the Municipality would produce the record of the
decision, which
might prove to be irrelevant.
[28]
The second respondent alleges that should
the generally applicable holistic approach be enforced, so that the
question of law as
raised in its Rule 6(5)(d)(iii) is dealt
with the main review application is ripe for hearing, it would result
in many volumes
of paper to be prepared, and essentially arguments on
three different reviews.
[29]
The second respondent also submitted that
in order to be complete, there might be the necessity to resort to
Rule 35 discovery,
oral evidence and cross-examination would be
essential considering the time spans between 2017 and 2022.
[30]
According to the second respondent
meritless and vexatious appeals and cross-appeals may follow. And
lastly, that the very existence
of the interdict granted against the
first- and second respondents is a solid reason for the question of
law as raised in its Rule
6(5)(d)(iii) to be dealt without any
delay, and the issue to be finally determined on the basis that no
cause of action has
been demonstrated in terms of Rule 53(2).
[31]
The applicants in opposing contend that the
separation application is simply an abuse of court process. The
review remains unchallenged,
and the opportunity has not arisen for
the respondents to file any answering affidavit that could possibly
challenge what the applicants
have set in their founding affidavit
with regard to the irregularity and unfair nature of the
administrative actions concerned.
[32]
It is contended on behalf of the applicants
that “points of law”, and the reference to Rule
6(5)(d)(iii) afford and
opportunity in normal motion proceedings to a
respondent to within ten days after having filed a notice of
intention to oppose,
and it is designed to raise a distinct point in
law. It is contended that the application by the second respondent is
novel, and
in the circumstances incompetent. The points of law speak
to so-called defenses and ought to be raised in an answering
affidavit
to the main review application, and is incapable of being
separately raised and decided. The ostensible points of law deal with
merits of the review application.
[33]
The applicants contend that absent the
records and the applicants exercising their right to supplement its
founding affidavit and
amend its notice of motion, any
in
limine
point is premature.
[34]
It is submitted on behalf of the applicants
that the second respondent seeks to delay the proceedings as long as
possible, as the
second respondent has disregarded the interim
interdict that was granted, and has embarked upon three applications
for leave to
appeal.
[35]
The applicants further contend that the
deponent to the founding affidavit to the separation
application/answering affidavit to
the application to compel, does
not possess the required personal knowledge, as he has only been
appointed as attorneys of record
in July 2020.
Discussion
[36]
A
respondent should generally file its answering affidavit on the
merits at the same time as it takes a preliminary objection on
a
point of law.
[2]
If a
respondent, as in this case, exclusively relies on the notice in
terms of Rule 6(5)(d)(iii), the allegations contained in
the founding
affidavit must be taken as established facts.
[3]
It is also so that a respondent, in spite of having filed an
answering affidavit, may raise an objection
in
limine
that the founding affidavit does not make out a
prima
facie
case for the relief sought.
[4]
[37]
In
Louis
Pasteur Holdings (Pty) Ltd v Absa Bank Ltd
[5]
the Supreme Court of Appeal commenting on Rule 33(4) and separation
of issues in motion proceedings, referred to
Harms,
Civil procedure in the Superior Courts Part B High Court at B33.9
,
which states:
‘
The
provision does not apply to applications, but a court may deal with
separate issues in applications in limine and in its inherent
power
apply a similar procedure to them
.”
[38]
The
Supreme Court of Appeal proceeded to state that when a court in
exercising its inherent power in application proceedings, to
separate
issues
in
limine
,
it must do so with circumspection.
[6]
[39]
This
court is thus empowered to separate the second respondent’s
question of law as raised in its Rule 6(5)(d)(iii) notice,
if found
that in applying the principles analogous to Rule 33(4), that it is
convenient to do so. In considering the latter (issue
of
convenience), it is opposite to restate that the procedure of
separate adjudication of issues is aimed at facilitating the
convenience and expeditious disposal of litigation.
[7]
[40]
In
Democratic
Alliance and Others v Acting National Director of Public Prosecutions
and Others
[8]
it
was held:
“
Generally,
courts should be slow to allow parties to engage in piecemeal
litigation, with the attendance delays … Courts
should be
circumspect when suggestions are made about the procedure to be
followed on the basis that it might shorten rather than
lengthen the
litigation
.”
[41]
Wallis JA, on behalf of the majority, in
Theron and Another NNO v Loubser NO
and Others
2014 (3) SA 323
(SCA) at
par [26] stated that it is undesirable to dispose of an application
piece-meal:
“
In
general, however, the desirable course to be followed in application
proceedings, where the affidavit are both the evidence and
the
pleadings, is for all of the affidavits to be delivered and the
entire application to be disposed of in a single hearing
.”
[9]
[42]
In
DE van
Loggerenberg & Erasmus Superior Court Practice
(2016) 2 Ed, at D1-536 and as referred to by the Supreme Court of
Appeal in
Tshwane City v Blair Atholl
Homeowners Association
2019 (3) SA
398
(SCA) at 414G-I:
“
The
word ‘convenient’ within the context of the subrule
conveys not only the notion of facility or ease or expedience,
but
also the notion of
appropriateness
and fairness
. It is not the
convenience of any one of the parties or of the court, but the
convenience of all concerned that must be taken into
consideration
.
(own underlining)
[43]
In
Consolidated
News Agencies (Pty) Ltd (in liquidation) v Mobile Telephone Network
(Pty) Ltd and Others
2010 (3) SA
382
(SCA) at par [90] to [91] the court said the following:
“
The
court has warned that in many cases, once properly considered, issues
initially thought to be discreet are found to be inextricably
linked.
And even where the issues are discreet, the expeditious disposal of
the litigation is often best served by ventilating
all the issues at
one hearing..
.”
[44]
It is required of a party, such as the
second respondent, to demonstrate convenience, sufficiently so to
enable a court to exercise
its discretion in a proper and meaningful
way.
[45]
The second respondent’s contentions
that the separation will avoid huge and reckless wastage of precious
time and costs, avoid
volumes of papers to be prepared, avoid
argument on three different reviews, avoid discovery, oral evidence
and cross-examination
does not demonstrate convenience.
[46]
Equally the second respondent’s
contention that future appeals will be avoided if the separation is
granted and disposed of
in terms of Rule 6(5)(d)(iii) holds no water.
Such a determination will be final in effect and subject to appeal.
Moreover, the
granting of the separation as sought on the basis of a
Rule 6(5)(d)(iii) notice, filed in Rule 53 review proceedings and
before
a respondent is called upon in terms of Rule 53(5)(b) is all
but a run-of-the-mill application. The method employed is rather
controversial
in the circumstance. Making it just as susceptible to a
challenge on appeal.
[47]
It would indeed be convenient to the second
respondent who stands as the beneficiary of the decisions challenged
by the applicants,
to get the review application out of the way as
soon as possible, and consequently the interim interdict as granted
and which the
second respondent has to date not been able to
successfully appeal against.
[48]
A separation as sought by the second
respondent offends the very purpose of Rule 53. It does not promote
fairness between the parties.
As held in
Helen
Suzman Foundation v Judicial Service Commission and Others
2017 (1) SA 367
(SCA) at 374G-375C at par [13]:
“
[13]
The primary purpose of the rule is to facilitate
and regulate
applications for review by granting the aggrieved party seeking to
review a decision of an inferior court, administrative
functionary or
state organ,
access to the record
of the proceedings in which the decision was made, to place the
relevant evidential material before court.
It is established in our law that the rule which is intended to
operate to benefit the applicant
,
is an important tool in
determining
objectively
what considerations
were probably operative in the mind of the decision maker when he or
she made the decision sought to be reviewed.
The applicant must be
given access to the available information sufficient for it to
make
its case
and to place the
parties on equal footing in the assessment of the lawfulness and the
rationality of such a decision. By facilitating
access to the record
of the proceedings under review, the rule enables the court to
perform the inherent review function to scrutinize
the exercise of
public power for compliance with constitutional prescripts. This, in
turn gives effect to a litigant’s right
in terms of section 34
of the Constitution – to have a justifiable dispute decided in
a public hearing before a court with
all the issues being properly
ventilated.
”
(own underlining
added)
[49]
Although an applicant in a review
application, and in terms of Rule 53(2), is required to set out the
decision or proceedings sought
to be reviewed, supported by an
affidavit setting out the grounds, the facts and the circumstances
upon which an applicant relies
to have the decision or proceedings
set aside, such applicant’s cause of action or case is not
complete until such time as
the record of proceedings had been made
available, in the present instance by the third- to sixth
respondents, and the applicant
has exercised its right in terms of
Rule 53(4) to either vary or supplement its founding affidavit and/or
amend its notice of motion,
or not.
[50]
In
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993
(1) SA 649
(A) at 660E-F, Kriegler AJA held that not infrequently the
private citizen is faced with an administrative or quasi-judicial
decision
adversely affecting his rights, but has no access to the
record of the relevant proceedings, nor any knowledge of the reasons
founding
such a decision. Were it not for Rule 53, he would be
obliged to launch review proceedings in the dark, and depending on
the answering
affidavit(s) of the respondent(s), he could then apply
to amend his notice of motion and to supplement his founding
affidavit.
Manifestly, the procedure created by the Rule is to his
advantage, in that it obviates the delay and expenses of an
application
to amend and provides him with access to the record.
[51]
Thus, until such time as access to the
record of proceedings has been obtained, the review application is
still incomplete and has
‘effectively’ not been launched.
[52]
As
stated in
Jockey
Club
(
supra
)
[10]
Rule 53 was designed to aid an applicant, not to shackle him. The
purpose of Rule 53 is not to protect the decision maker, but
to
facilitate applications for review and to ensure their expedient and
orderly presentation. Such benefits, as it may confer on
a
respondent, in contradiction to those ordinary enjoyed by a
respondent under Rule 6, are incidental and minor. It confers real
benefits on the applicant, benefits which the applicant may enjoy if
and to the extent needed in his particular circumstances.
[11]
[53]
The second respondent’s contention
that notwithstanding the record of proceedings not having been made
available by the Municipality,
and even prior to the applicant
exercising its right in terms of Rule 53(4), the applicants were
obliged to set out a cause of
action in terms of Rule 53(2), is
unsound.
[54]
In
Competition
Commission v Computicket (Pty) Ltd
[12]
the Court held:
“
[20]
At
first sight one could be pardoned for thinking that,
in the light of
these two concessions the Commission would have no answer to
Computicket’s demand for the record which formed
the basis of
the decision it seeks to challenge. Nonetheless, the Commission
offered not only one, but two answers. Its first answer
was that in
order to demand the record, Computicket had to make out a prima facie
case for review. The only basis relied upon for
this contention was
that Computicket bears the onus of establishing its review grounds.
But as I see it, the basis relied upon
amounts to a non sequitur. I
agree with the CAC’s finding that this argument effectively
places the cart before the horse.
Not
infrequently the ability of an applicant for review to discharge the
onus resting on it to make out a case, will depend on considerations
appearing – or not appearing – from the record of the
material upon which the challenged decision had been made
.
Moreover, upholding the Commission’s argument would give rise
to a
two-stage enquiry on the
merits of the case: first, without the record to determine whether
the applicant had made out a prima facie
case. If the applicant
clears that hurdle, the second stage enquiry then follows to finally
determine the merits, this time with
the benefit of the record which
had now been made available. The proposed scenario, for which there
appears to be no justification
in logic, is clearly unsustainable.
Finally, the argument under consideration is not supported by Rule
53. In terms of this rule, the obligation to produce the record
automatically follows upon the launch of the application, however
ill-founded that application may later turn out to be.”
(own
emphasis)
[55]
In
Competition
Commission of South Africa v Standard Bank of South Africa Ltd:
Competition Commission of South Africa v Standard Bank
Ltd;
Competition Commission of South Africa v Wako Africa (Pty) Ltd and
Others
2020 (4) BCLR 429
(CC) at
par [120]:
“…
..a
distinction must be made between the jurisdiction of the forum to
hear the review application and the merits of the review application.
If a review application is launched in a forum that enjoys
jurisdiction,
then
a party is entitled to the record even if their grounds of review are
meritless
.
As the Supreme Court of Appeal put it ‘the obligation to
produce the record automatically flows upon the launching of the
application,
however
ill-founded that application may later turn out to be’
.
[13]
This is because, as recognized by the majority decision in Helen
Susman,
Rule
53 envisages the grounds of review changing after the record has been
furnished.
The
record is essential to a party’s ability to make out a case for
review. It is for this reason that a prima facie case
on the merits
need not be made out prior to the filing of the record
.”
(own emphasis)
[56]
In
Commissioner
for the South African Revenue Service and Another v Richards Bay Coal
Terminal (Pty) Ltd
[14]
the court restated:
“
There
is no gainsaying that if a review application is launched in a forum
that enjoys jurisdiction, then a party is entitled to
the record even
their grounds of review are meritless
.”
[57]
There is thus no obligation in terms of
Rule 53(2) upon the applicants to have made out a complete cause of
action or prima facie
case prior to receiving the record and
exercising its clear right in terms of Rule 53(4).
[58]
Rule 53 does not restrict the second
respondents entitlement to take a point by way of a preliminary
objection that the supporting
affidavit does not make out a
prima
facie
case (or cause of action as
termed by the second respondent) for the relief sought. This can and
should have be done simultaneously
with filing its opposing affidavit
on the merits.
[59]
By filing the Rule 6(5)(d)(iii) notice when
it did and then launching the separation application in circumstances
where that raised
therein could with ease have been dealt with in its
answering affidavit to the main review application, the second
respondent attempts
to short-circuit the natural flow of a Rule 53.
The second respondent stratagem is aimed at frustrating the
applicants right to
interrogate the record of proceedings, vary its
founding affidavit and amend its notice of motion, if there is found
cause to do
so and by implication avoid the courts review function to
scrutinize the exercise of public power for compliance with
constitutional
prescripts.
[60]
The second respondent’s tactical
maneuver have caused not only a delay in the final adjudication of
the review application
but has put the applicants to unwarranted
engagement and expense in the circumstances.
[61]
Entitlement of the
second respondent to have delivered the Rule 6(5)(d)(iii) notice
within a Rule 53 application and the strength
or weakness of the
second respondent’s contentions in respect of its ‘questions
of law’ do not stand to be considered
in the assessment of
whether a separation ought to be granted. This is plain from the fact
that the applicants’ review application
has not become
complete.
It is thus open to the court adjudicating upon the main review
application to determine same, if the second respondent stands by
its
objection alternatively if raised
in
limine
through its answering affidavit filed in terms of Rule 53(5)(b).
[62]
The second respondent
has not demonstrated that a separation of its preliminary objection,
as articulated in its Rule 6(5)(d)(iii)
notice, can conveniently,
appropriately and fairly be separated and adjudicated upon prior to
the adjudication of the main review
application. Should the second
respondent stand by its objection all the issues in the review
application should be prosecuted
conjointly, regardless of whether a
point
in
limine
or
preliminary objection may dispose of the entire case or not.
[63]
Having found as aforesaid, the separation
application by the second respondent should fail.
Application to
compel
[64]
In
Democratic
Alliance and Others v Acting National Director of Public Prosecutions
and Others
2012 (3) SA 486 (SCA)
[15]
it
was stated that:
“…
It
can hardly be argued that, in an era of greater transparency,
accountability and access to information, a record of a decision
relating to the exercise of public power that can be reviewed should
not be made available, whether in terms of Rule 53 or by courts
exercising their inherent power to regulate their own process
.”
[65]
In
President
of the Republic of South Africa v Democratic Alliance and Others
2020 (1) SA 428
(CC) the minority judgment reiterated a respondent’s
obligation to file the Rule 53 record:
“
[46]
The institution of the review application by the Democratic Alliance
in terms of rule 53 automatically triggers certain
procedural rights
in its favour and imposes obligations upon the President, in his
capacity as the decision maker. From the date
of service of the
papers on him, the President was under a duty to dispatch a record of
proceedings relating to the impugned decision
to the registrar of the
High Court in which the review was launched. The President was
obliged to do so within fifteen days.
”
[66]
On above basis and
the authorities relevant to this consideration already dealt with
under the separation application the
applicants’
entitlement to the record of proceedings to be made available by the
Municipality cannot be gainsaid. The Municipality
is obliged to do
so.
[67]
Consequentially the
applicants are entitled to the relief sought in the application to
compel.
Costs
[68]
In the application to compel the applicants
seek costs against the Municipality and/or any other respondent
opposing the application,
jointly and severally, the one to pay the
other to be absolved. In opposing the separation application, the
applicants contend
that application amounted to an abuse of process,
and they seek a punitive cost order on an attorney-and-own-client
scale, including
cost of two counsel if necessary.
[69]
From that before court, the applicants did
not utilise two counsel, and therefore cost of two counsel is not
justified.
[70]
Costs on an attorney-and-own-client scale
is justified in the circumstances present in this matter for
inter
alia
the reasons set out in paragraph
[64]
supra
.
The second respondent in opposing the application to compel in the
manner that it did, utilized the rules of court to obtain an
unfair
and opportunistic advantage in the litigation. By employing the
stratagem of filing the Rule 6(5)(d)(iii) notice at the
time and
manner that it did and then attempting to enforce same prematurely
caused an even longer delay and increased costs than
that which would
have followed upon a mere unopposed application to compel against the
Municipality.
Order
[71]
For the reasons aforesaid, the following
order is made:
1.
The second respondent’s “
Conditional
application and counter application for separation and enrollment of
point of law in terms of Rule 6(5)(B)(iii)”
is dismissed.
2.
The second respondent is ordered to pay the
cost on an attorney-and-client scale.
3.
The third respondent is ordered to dispatch
within 10 (ten) days of service of this order upon it, the complete
record of proceedings
pertaining to the decisions of the third
respondent, with the reasons for such decisions, which form the
subject matter of the
review application brought by the applicants
under case number 2692/2022, and as provided for in prayer 1 of Part
B thereof.
4.
The second respondent and third respondent
are ordered to pay the costs, jointly and severally, the one to pay
the other to be absolved,
on an attorney-and-client scale.
D.
GREYLING-COETZER
ACTING
JUGDE OF THE HIGH COURT
HEARD:
24
October 2023
COURT
FILE UPDATED: 25 October 2023
DELIVERED
ON:
This judgment was delivered
electronically by circulation to the parties’ representatives
by way of email and by release to
SAFLII. The date and time for
delivery is deemed to be at 14h00 on 24 January 2024.
FOR
THE APPLICANTS:
Adv
JA Venter
Instructed
by Ivan Pauw & Partners
Care
of CA Dry Attorneys Inc
E-mail:
ivan@ipartners.co.za
pierre@ipartners.co.za
caz@cdlaw.co.za
FOR
THE 2
nd
RESPONDENT:
Adv B
Savvas
Instructed
by MKA Attorneys
Care
of Thobela Sindy Attorneys
E-mail:
matthew@mkalaw.co.za
murray@mkalaw.co.za
thobelasindyattorneys@gmail.com
[1]
During
argument counsel for the second respondent indicated that the
application, notwithstanding the heading, is not conditional,
but
merely a counter-application
[2]
Ebrahim
v Georgoulas
1992 (2) SA 151
(B) at 154D-G
[3]
Boxer
Superstores Mthatha and Another v Mbenya
2007 (5) SA 450
(SCA) at 452F-G
[4]
Valentino
Globe BV v Phillips
[1998] ZASCA 43
;
1998 (3) SA 775
(SCA) at 779F
[5]
2019
(3) SA 97 (SCA)
[6]
Louis
Pasteur
(
supra
)
at par [33]
[7]
Denel
(Edms) Beperk v Vorster
2004 (4) SA 481
(SCA) at 485A-E
[8]
2012
(3) SA 486
(SCA) at par [49]
[9]
See
also
Tau
v Mashaba and Others
2020 (5) SA 135 (SCA)
[10]
at
661 E
[11]
Jockey
Club
(
supra
)
at 662H
[12]
(853/2013)
[2014] ZASCA 185
(26 November 2014)
[13]
Competition
Commission v Computicket (Pty) Ltd
(supra)
at par [20]
[14]
(1299/2021)
[2023] ZASCA 39
(31 March 2023)
[15]
at
par [37]