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[2012] ZACC 10
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MEC for Local Government, Environmental Affairs and Development Planning, Western Cape Province In re: Minister for Mineral Resources and Swartland Municipality and Others and Maccsand (Pty) Ltd and The City of Cape Town and Others (CCT 102/11, 103/11) [2012] ZACC 10; 2012 (9) BCLR 947 (CC) (29 May 2012)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 102/11 & CCT 103/11
[2012] ZACC 10
In the matter of:
MEC FOR LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING,
WESTERN CAPE PROVINCE
…...................................................................
Applicant
In Re:
Case CCT 102/11
[2012] ZACC 8
MINISTER FOR MINERAL RESOURCES
…...............................................
Applicant
and
SWARTLAND MUNICIPALITY
…...................................................
First
Respondent
HUGO WIEHAHN LOUW N.O.
…................................................
Second
Respondent
CORNELIA JOHANNA ELIZABETH LOUW N.O.
…....................
Third
Respondent
IGNATIUS VILJOEN N.O.
…..........................................................
Fourth
Respondent
IZAK BARTHOLOMEAS VAN DER VYFER N.O.
….....................
Fifth
Respondent
ELSANA QUARRY (PTY) LTD
…...................................................
Sixth
Respondent
MEC FOR LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT PLANNING,
WESTERN CAPE PROVINCE
…..................................................
Seventh
Respondent
and in the matter between
Case CCT 103/11
[2012] ZACC 7
MACCSAND (PTY) LTD
…...........................................................................
Applicant
and
CITY OF CAPE TOWN
…...................................................................
First
Respondent
MINISTER FOR WATER AFFAIRS
AND ENVIRONMENT
…...............................................................
Second
Respondent
MEC FOR LOCAL GOVERNMENT, ENVIRONMENTAL
AFFAIRS AND DEVELOMENT
PLANNING, WESTERN CAPE PROVINCE
…...............................
Third
Respondent
MINISTER FOR RURAL DEVELOPMENT
AND LAND REFORM
….................................................................
Fourth
Respondent
MINISTER FOR MINERAL RESOURCES
…...................................
Fifth
Respondent
and
CHAMBER OF MINES OF SOUTH AFRICA
….........................
First
Amicus Curiae
AGRI SOUTH AFRICA
….........................................................
Second
Amicus Curiae
Decided on : 29 May 2012
JUDGMENT
Before: Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Maya AJ, Nkabinde J, Skweyiya J, van der Westhuizen
J and
Zondo AJ:
THE COURT:
On 12
April 2012 this Court delivered two judgments in case numbers CCT
102/11 and CCT 103/11 in which the present applicant,
the MEC for
Local Government, Environmental Affairs and Development Planning,
Western Cape Province (MEC) was a respondent. In
case CCT 102/11,
the Court issued a costs order in these terms:
“
The
Minister for Mineral Resources must pay the costs of Swartland
Municipality and the MEC for Local Government, Environmental
Affairs
and Development Planning, Western Cape, including costs of two
counsel.”
1
And in
case CCT 103/11, the Court issued an order of costs in the following
terms:
“
The
Minister for Mineral Resources must pay the costs of the City of Cape
Town in this Court, including costs occasioned by the
employment of
two counsel.”
2
On 16
April 2012 the MEC launched the present application in terms of Rule
29 of the Rules of this Court
3
read with Rule 42 of the Uniform Rules.
4
Rule 42 authorises this Court to vary “an order or judgment in
which there is an ambiguity, or a patent error or omission”.
The MEC asserts that both orders must be varied because they contain
patent errors.
With
regard to case CCT 102/11, the deponent to the affidavit filed on
behalf of the MEC states that the error lies in the fact
that the
MEC did not oppose that appeal in this Court, even though he was
cited as a respondent and both written and oral argument
was
presented in this Court on his behalf. The affidavit continues to
say that argument presented was confined to case CCT 103/11,
which
was heard together with case CCT 102/11. Even though the application
was served on the other parties, these facts remain
undisputed.
In
relation to case CCT 103/11, the MEC contends that not only was the
City of Cape Town successful in opposing the appeal, but
he too was
successful. Accordingly, it was argued that the costs order granted
in favour of the City should have included him.
Based on this
assumption, it was submitted that the MEC’s exclusion was
occasioned by a patent omission.
As is
evident from the text of Rule 42(1)(b), the exercise of the power is
limited to the extent of the error or omission. The
limit placed on
the exercise of the power recognises the principle that once a court
has pronounced a final judgment or order,
it has no authority to
correct, alter or supplement it.
5
Therefore the variation or amendment of an order constitutes an
exception to this principle.
As it
transpires that the MEC did not oppose the appeal in case CCT
102/11, I am satisfied that the costs order issued there was
granted
in error. The order falls to be amended to exclude reference to the
MEC.
Regarding
case CCT 103/11, the MEC was not left out erroneously as a party to
whom costs were also to be paid by the Minister
for Mineral
Resources. While it is true that the MEC opposed this appeal
successfully, his success was partial. It was limited
to what is
described in the main judgment as the “LUPO issue”,
which dealt with the applicability of the Land Use
Planning
Ordinance
6
to land in respect of which a mining right or permit had been
granted under the Mineral and Petroleum Resources Development Act.
7
However,
the MEC did not confine himself to the LUPO issue. He sought to
cross-appeal against the refusal of the Supreme Court
of Appeal to
grant a declaration based on the National Environmental Management
Act.
8
In addition he sought, in the alternative, leave to approach this
Court directly for the relief that he failed to obtain from
the
Supreme Court of Appeal. Both these applications were unsuccessful.
Instead the Minister for Mineral Resources had opposed
them
successfully.
In
the circumstances, this Court considered it fair, as between the MEC
and the Minister for Mineral Resources, that each party
should carry
its own costs. Accordingly, the costs order made in case CCT 103/11
is accurate. It follows that while the request
must succeed in
respect of case CCT 102/11, it must fail in relation to case CCT
103/11.
The
following order is made:
The
order of costs granted in case CCT 102/11 is amended by deleting the
reference to the MEC for Local Government, Environmental
Affairs and
Development Planning, Western Cape.
The
request for the variation of the order of costs in case CCT 103/11
is refused.
There
is no order as to costs in this application.
For
the Applicants: Werksmans Attorneys.
1
Minister
for Mineral Resources v Swartland Municipality and Others
[2012]
ZACC 8
at para 14.
2
Maccsand
(Pty) Ltd v City of Cape Town and Others
[2012] ZACC 7
at para
59.
3
Rule
29 stipulates that Rule 42 of the Uniform Rules applies to
proceedings in this Court.
4
Rule
42 provides:
“
(1) The court may, in
addition to any other powers it may have,
mero
motu
or upon the a
application of any party affected, rescind or vary:
(a) an order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby;
(b) an order or judgment in which there is an
ambiguity, or a patent error or omission, but only to the extent of
such ambiguity,
error or omission;
(c) an order or judgment granted as the result of a
mistake common to the parties.
(2) Any party desiring any relief under this rule shall
make application therefor upon notice to all parties whose interests
may
be affected by any variation sought.
(3) The court shall not make any order rescinding or
varying any order or judgment unless satisfied that all parties
whose interests
may be affected have notice of the order proposed.”
5
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977 (4) SA 298
(AD) at
306F-G. This case was approved by this Court in
Minister of
Justice v Ntuli
[1997] ZACC 71
;
997 (3) SA 772
(CC);
1997 (6)
BCLR 677
(CC) at paras 22-3 and
Ex parte Women’s Legal
Centre: In re Moise v Greater Germiston Transitional Local Council
[2001] ZACC 2
;
2001 (4) SA 1288
(CC);
2001 (8) BCLR 765
(CC) at
paras 8-9.
6
Ordinance
15 of
1985.
7
Act
28
of
2002.
8
Act
107
of 1998.