About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2024
>>
[2024] ZAMPMBHC 65
|
|
Mhlongo v Trustees for the Time Being of the Peter Neve Trust MT 1266/1996 being: Neves and Others (191/2024) [2024] ZAMPMBHC 65 (16 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 191 / 2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
16 September 2024
SIGNATURE
In the matter between:
FOISTER
PATRICK MHLONGO
APPLICANT
And
THE
TRUSTEES FOR THE TIME BEING
JOINT FIRST RESPONDENT
OF
THE PETER NEVE TRUST MT
1266/1996
BEING:
ELIZABETH
IRENE NEVES
PRISCILLA
FRANCIS RAMBOTTOM
CHRISTOPHER
GILBERT NEVE NNO
THE
CONTROLLER PF PETROLEUM
SECOND RESPONDENT
PRODUCTS
THE
MINISTER – DEPARTMENT OF
THIRD
RESPONDENT
MINERAL
RESOURCES AND ENERGY
JUDGMENT
RATSHIBVUMO ADJP:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be 08H00 on 16
September 2024.
[1]
Introduction
This matter was placed on
an urgent court roll of 20 August 2024, for reconsideration of an
order granted on 13 February 2024, by
Mashile J of this Division. The
application for reconsideration is premised on Rule 6(12)(c) of the
Uniform Rules of the High Court
and is brought by the First
Respondent. The order to be reconsidered, dated 13 February 2024
reads,
“
1.
The matter is enrolled and heard in terms of Rule 6(12) and that
condonation is granted for any non-compliance with any applicable
Rule of Court and Practice Directive.
2. Pending the
finalisation of case No. 2024-003211 in the High Court Gauteng
Division, Pretoria for judicial review and setting
aside of the Site
and Retail licences by the corner of Managa and Sibange Roads of the
R[...] M[...], Mpumalanga and known as Stand
7[...] S[...] D,
Masibekela at or on the same property as ‘Build It’
(hereinafter referred to as the Site) the First
Respondent is
interdicted from operating a petrol station and conducting retailing
activities in petroleum product from the Site.
3. Costs be paid by the
First Respondent.
4. In the event that
there are facts and circumstances arising after the date hereof, on
facts and circumstances not presently before
court, any Respondent
may, on notice of Motion to all other parties, apply for a
reconsideration of this order.”
[2]
The Applicant contends that a similar
application has already been considered by the court wherein the
application was struck from
the roll. It is therefore necessary to
determine if this is indeed true before delving into the merits of
the case.
[3]
Following the handing down of the order
referred to above, the First Respondents approached this court on an
urgent basis with application
to have that order reconsidered, in
terms of Rule 6(12)(c) of the Uniform Rules. The application was
heard on 27 February 2024.
The notice of motion in that application
read,
“
[B]e
pleased to take notice that the First Respondent intends to set the
matter down in terms of Rule 6(12(c) to this Honourable
Court on 27
February 2024 at 10:00 or as soon as counsel may be heard for
reconsideration of the court order granted on 13 February
2024 in the
following terms-
1.
The matter is enrolled and heard in terms
of Rule 6(12) and that condonation be granted for non-compliance with
any applicable Rule
of Court.
2.
That the court reconsiders the court order
granted by the Honourable Judge B Mashile on 13
th
of February 2024.
3.
That the Honourable Court sets aside and
delete the Prayer 1, 2 and 3 of the court orders.
4.
That
punitive costs be ordered against the Applicant...”
[1]
[4]
This
application was struck off the roll by Phahlamohlaka AJ of this
Division on 28 February 2024 for lack of urgency.
[2]
The Notice of Motion and the founding affidavit that laid before the
urgent court on 27 February 2024, did not form part of the
bundle
before this court on 20 August 2024. It was only when the court
called for those documents, that the First Respondents availed
them
to the Registrar of this court. This was necessary in order to draw
the resemblances and differences between them and the
current
application given the Applicant’s submissions.
[5]
The Applicant’s Notice of Motion in
the current application reads,
“
[B]e
pleased to take notice that the First Respondent intends to set the
matter down in terms of Rule 6(12(c) to this Honourable
Court on 27
February 2024 at 10:00 or thereafter as soon as the parties may be
heard on the following terms:
1.
That the matter be heard in terms of Rule
6(12)(c) of the Uniform Rules of Court.
2.
That the order granted by the Honourable
Judge Mashile be reconsidered as a whole and set aside.
3.
The application for urgent interdict be
dismissed for the lack of urgency.
4.
The Applicant be ordered to pay costs for
this application on an attorney client scale.
5.
Sheriff’s decision to close my (sic)
business be reserved.
6.
The court order granted to the Applicant on
the 13
th
of February 2024 be revoked…”
[6]
If one compares the two, there is no doubt
that the current notice of motion only features cosmetic changes from
the one that laid
before the urgent court of 27 February 2024 as both
were premised on Rule 6(12)(c) of the Uniform Rules and were (are)
aimed at
reconsideration by the court of the order dated 13 February
2024.
[7]
With
the order handed down on 28 February 2024, the First Respondents had
to choose if they were displeased with the ruling, of
which they had
an option to bring an application for leave to appeal, so that the
order dated 28 February 2024 could be considered
on appeal. The other
option available was for the First Respondents to accept the ruling
on the lack of urgency and enrol the application
on a normal motion
roll for it to be adjudicated on its merits.
[3]
[8]
It
is common cause that shortly after the order dated 28 February 2024,
the First Respondents launched an application for leave
to appeal
that order. The presiding judge brought it to the attention of the
First Respondents that their application was not in
compliance with
Directive 19.1 of the Practice Directives of this Division.
[4]
The application was thereafter withdrawn by the First Respondents.
[9]
The Applicant submitted before this court
that the urgent court erred when it ruled on 28 February 2024 that in
an application for
reconsideration of an order dated 13 February
2024, which order was made in their default, it was a prerequisite
for the First
Respondents to show urgency. It was argued that the
mere reason that an order was granted on urgent basis is enough
reason for
the matter to be reconsidered in terms of Rule 6(12)(c) of
the Uniform Rules.
[10]
Whether there is credence in this argument,
would be irrelevant in my view as I am not sitting as a court of
appeal to the order
dated 28 February 2024. The urgent court did not
hear the application for leave to appeal against its earlier ruling.
Had the First
Respondents proceeded with the application and had it
been granted, the matter would have lied before the full court in
accordance
with section 16(1)(a)(i) of the Superior Court, no. 10 of
2013 which provides,
“
[
S]ubject
to section
15(1), the Constitution and any other law-
(a)
an appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted-
(i)
if the
court consisted of a single judge, either to the Supreme Court of
Appeal or to a full court of that Division,
depending on the direction issued in terms of
section
17
(6);
or…” [My emphasis].
[11]
When I sat in the urgent court on 20 August
2024, I was a single judge, just as Phahlamohlaka AJ was, on 27
February 2024. This
court therefore does not have jurisdiction to
pronounce itself on the correctness or otherwise of the order of
Phahlamohlaka AJ
handed down on 28 February 2024. Expressing an
opinion thereto could only serve as giving unsolicited advice on the
prospects of
success if the decision of Phahlamohlaka AJ was to be
challenged on appeal.
[12]
It is therefore improper for the same
application that laid before the urgent court on 27 February 2024 to
be placed before this
court, sitting as an urgent court, without
developments to the case that make the application different. Counsel
for the First
Respondents was at pains to try and point out the
differences between this application and the application that was
brought before
court on 27 February 2024. He highlighted how the
First Respondents approached the Gauteng Division of the High Court
(Pretoria
High Court), which unfortunately referred them to the
Mpumalanga Division for recourse in respect of the judgment dated 13
February
2024. I agree that this is the right court with the
necessary jurisdiction. Where I differ with the First Respondents is
the procedural
steps they take to upset that order.
[13]
I do not agree that bringing an application
before the Pretoria High Court can be considered as “developments”
in a
case, from the date the order dated 28 February 2024 was handed
down. Developments in a case would entail anything that happens
that
would change the status of a case from being considered as not
urgent, to urgent. The First Respondents had to choose if they
agree
with the order of 28 February 2024, as they seem to have done;
thereby conceding that the application was not urgent and
that they
could not just bring the application for reconsideration without
facts that render the application, urgent. With this
position, the
application would have to be enrolled for hearing on a normal opposed
motion roll, unless there are developments
that warrant the
application to be heard on urgent basis. The other option which the
Applicant appears to have not preferred, was
to challenge the order
dated 28 February 2024 by way of appeal.
[14]
Whichever
way this court approaches this application; it is bound to create
precedence for the future. For a young Division such
as ours, we
cannot compromise the rules and procedure even if it appears that
decisions are being made based on technicalities.
For this court to
decide the matter on merits would be equal to hearing an appeal
through backdoor. It would as such be a futile
exercise for this
court to proceed and consider the merits of the application as the
issues are not properly brought before it.
For this reason, the
application would not be dismissed, as the merits of the case were
not visited.
[5]
This means that
the application can still be enrolled for hearing, unless there is an
appeal against any of the orders already
made herein.
[15]
For the aforesaid reasons, I make the
following order.
[15.1] The application is
struck off the roll.
[15.2]
The First Respondents are ordered to pay the costs of this
application.
TV RATSHIBVUMO
ACTING DEPUTY JUDGE
PRESIDENT
MPUMALANGA
FOR
THE APPLICANT:
ADV.
DJ SIBUYI
(TRUST
ACCOUNT ADVOCATE)
C/O:
THOBELA
SINDY ATTORNEYSMBOMBELA
FOR
THE RESPONDENT
ADV.
BG SAVVAS
INSTRUCTED
BY:
MURRAY
KOTZE & ASSOCIATES
C/O:
CHRISTO
SMITH ATTORNEYS INC
MBOMBELA
DATE
HEARD:
20
AUGUST 2024
JUDGMENT
DELIVERED:
16
SEPTEMBER 2024
[1]
See
p. 401-402 of the bundle that served before the urgent court on 27
February 2024.
[2]
See
p. 444 of the paginated bundle.
[3]
See
Commissioner
for South African Revenue Service v Hawker Air Services (Pty) Ltd;
Commissioner for South African Revenue Service
v Hawker Aviation
Services Partnership and Others
(379/05)
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA) at para 9.
[4]
Practice
Directive 19.1 provides, “[A] party filing an application for
leave to appeal must simultaneously file the judgment
in the matter.
If judgment is not available, it shall be obtained by the applicant
before the application for leave to appeal
is laid before the judge
seized with the application for leave to appeal. Where a judgment is
delivered
ex
tempore,
it
shall be the responsibility of the party noting the application for
leave to appeal to have the judgment transcribed
and submitted to
the registrar together with the application for leave to appeal.”
[5]
See
Solidarity
obo Botha v Commission for Conciliation Mediation And Arbitration
and Others
(JR1281/06) [2008] ZALCJHB 15 (23 October 2008)
at para 16.