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IN THE NORTH GAUTENG HIGH COURT,PRETORIA

[REPUBLIC OF SOUTH AFRICA]

CASE NUMBER: 27743/2015

3/9/2015

In the matter between:

GOLDEN FALLS TRADING 116 (PTY) LTD                                                             APPLICANT

And

THE MINISTER OF ENERGY NATIONAL GOVERNMENT                    FIRST RESPONDENT

CONTROLLINER OF PETROLEUM PRODUCTS                           SECOND  RESPONDENT

MJW ONTWIKKELINGS (PTY) LTD                                                       THIRD RESPONDENT

BP SOUTHERN AFRICA (PTY) LTD                                               FOURTH   RESPONDENT

SONITA PETROLEUM (PTY) LTD FIFTH                                                         RESPONDENT

JUDGMENT

MAVUNDLA J;

[1] The applicant applies for leave to appeal to the Supreme Court of Appeal against the order of this Court delivered on the 6 May 2015 and the reasons thereof delivered on the 5 June 2015, striking the applicant's application from the urgent roll for lack of urgency, with a punitive costs order on attorney and client scale, which costs included costs of two counsel, and where applicable costs of senior counsel, where one counsel was employed.

[2] I must hasten to state that the application for leave to appeal stands to be dismissed with costs for the reasons stated herein below.

[3] It is trite that in an application for leave to appeal, the question to be asked is, whether there are reasonable prospects of success on appeal. Mothle J in the matter of Jennifer Graham and 2 others v The Law Society of the Northern Provinces and 3 others[1]held that:

'9      It is trite that the courts have always. applied as a test in application for leave to appeal that another court might found differently. See: Van Heerden v Conwright and Others' and Romon Catholic Church Klerksdorp Diocese v Southern life Association 1992 (2) SA 807 AD.

10         Section 17 of the Supreme Court Act 10 of 2013 provides thus:

"17 Leave to appeal

(1)  Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a)(i) the appeal would have reasonable prospects of success; or..."

11     this section amends the common law test that has been applicable in approaching the application for leave to appeal. The new test as provided in the statute replaces the word "might" in the common law test with the word "would". It is thus clear that the test as outlined by statute is more stringent".

[4]   The grounds upon which the leave to appeal is premised, are encapsulated, although not succinctly stated, in the applicant's notice for leave to appeal, broken into 12 paragraphs. I deem it not necessary, for purposes of this judgment, to chronicle and traverse all the grounds raised by the applicant. In my view, these grounds fall into two categories, firstly regarding the question of urgency, secondly the question of punitive costs. However, the question of urgency is then transposed to the question of the punitive costs, it being submitted that the two are intertwined, although in the same breath it was placed on record that the applicant does not intend to pursue the issue of urgency on appeal.

[5] The applicant's thrust was that the Court misdirected itself and failed to exercise its discretion properly in finding that the matter was not urgent; in ignoring applicant's evidence that the conduct of the fourth and fifth respondents, in continuing with the building construction against the second respondent's directive issued by the first respondent on the 4 November 2014 and on the 18 May 2015 to cease with the construction, was unlawful, consequently making the matter urgent.

[6] The applicant contended that it lodged an appeal against the granting of a retail licence to the fifth respondent and the granting of site transfer to the fourth respondent. The fourth and fifth respondent had stooped their unlawful constructions on site during December 2014. The Minister decided the internal appeal in favour of the applicant in April 2015. The fourth and fifth respondents resumed their unlawful activities which the applicant became aware of in May 2015. The Court misdirected itself in finding that the matter was not urgent regarding to the urgency resulting from the unlawful construction and the applicant becoming aware of the resumed unlawful activity in May 2015.

[7] With regard to the punitive costs the grounds raised are, inter alia, that the Court misdirected itself in not forewarning the applicant of the Court's intention to mulct it with punitive costs; and ignoring the unlawful construction on the part of the fourth and fifth respondent against the Minister's injunction to the fourth and fifth respondents to seize therewith.

[8] This Court found that the matter was not urgent and struck the application from the urgent Court roll. The practical effect of this order is that it is not dispositive of the application per se. The applicant can still have his day in Court by placing the matter on the opposed motion Court roll. In this regard it is apposite to refer to the matter of Andrew Lionel Phillips ond South African Reserve Bank & Others (221/11) [2012] ZASCA 38 {29 March 2012) the Supreme Court of Appeal held that:

"[26] The question of appealability ...where a party seeks to attack on appeal an order made in judicial proceedings which have not yet terminated, was discussed by Nugent JA in a judgment with which the other members of the court concurred in NDPP v King 2010 (2) (SA) 146 (SCA) at 166E-167C (paras 50-51) where he said the following:

'There will be few orders that significantly affect the rights of the parties considered that will not be susceptible to correction by a court of appeal. In Life Liberty Life Association of Africa Ltd v Niselow (in another court), which was cited with approval by this court in Beinash v Wixely 1997 (3}'..."

[9] The applicant in its papers stated, inter alia, that: The Minister has now provided the fourth and fifth respondents with 30 days in which to give reasons why their licences should not be revoked. It is trite that until the Minister has revoked the licences of the fourth and fifth respondents, the resumed construction where they have valid licences cannot be unlawful. There are therefore no prospects that another court would find that the construction by the fourth and fifth respondents, in circumstances where they held valid licences which have not been revoked, is unlawful.

[10] It is on record that the application for leave to appeal is only sought to offset the punitive costs order. It is trite that the Court of appeal is reluctant to interfere in appeals which are only in respect of costs orders, or of academic purposes. The award of costs is a matter of the discretion of the Court. It is trite that the court has an inherent discretion which is a strict or narrow one and described "as a strong or true discretion. In such case, the power to interfere is limited to cases in which it is found that the court vested with the discretion did not excercise the discretion judicially, which can be done by showing that the court of first instance exercised the power conferred on it capriciously or upon a wrong principle." Vide Manong & Associated (Pty) Ltd City of Cope Town & Another 2011{2) SCA); Naylor & Another v Jansen 2007 {1) SA 16 {SCA) at para 14. The Court of appeal is reluctant to interfere with such discretion, unless the discretion was manifestly improperly exercised; vide Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (AD) at 7811-782A. The onus rest on the appellant to demonstrate that the discretion was improperly exercised, and that a reasonable court, exercising its discretion, would not, (and not might not) have granted such costs order; vide Werber v Werber 1948 (1) SA 446 (AD) at 452-453; Cronje v Pelser 1967 (2) SA 589 (AD) at 592H-593A.

[11]     In respect of the punitive costs order, it bears repetition that the Court, in is inherent discretion, would invariably mulct a party with punitive costs, to express its displeasure on the unacceptable conduct of such party, in one way or the other, in the litigation. In casu, the Court's following findings are not assailed, regard being had to the fact that the appeal is only against the costs:

11. 1 the applicant's conduct in abridging the time frames for the respondent to consider its option and file a notice of intention to oppose, in a mere few hours, and the opposing affidavit 3 days respectively, was a kneejerk reaction;

11.2     applicants, contrary to the practice directive without seeking leave to go to a third court filed in the urgent court papers in excess of 500 pages;

11.3     the envisaged harm could hardly lie in the construction of the building per se, but after the completion of the construction, but the functionality after the completion of the building and the petrol station was functional;

11.4     the applicant conveniently did not take the court into its confidence with regard to when it became aware of the construction, regard being to the fact that the fourth and fifth respondents discontinued constriction activities on the relevant property during December 2014 after having been instructed to do so by the Controller, it can be safely accepted that the construction must have started earlier than December, and the applicant must have been aware thereof and failed to approach the Court only to wait until May 2015 before bring the application. There are no reasonable prospects that another Court would find differently than this Court did in this regard.

[12] In the matter of Naylor and Another 2007 (1) SA 16 (SCA) at 28D the Supreme Court of Appeal held that: "If another Court, in exactly the same circumstances as pertain in the present case were to exercise its discretion in favour of ordering the plaintiff to pay the defendant's costs...this Court would, similarly, not interfere. The reasons is that the exercise

of a narrow discretion necessarily involves a 'choice between permissible alternatives, and, accordingly, 'different judicial officers, acting reasonably, could legitimately come to different conclusions on identical facts'.

[12] The applicant bears the onus to demonstrate that  the  Court  did  not judicially exercise its discretion and misdirected itself or did not bring its unbiased judgment to bear on the question or did not act for substantial reasons in awarding the punitive costs against it. Regard being had to the aforesaid authorities, it is this Court's considered view that the applicant has failed to acquit itself of the onus it bears; to demonstrate that another court would find that in awarding punitive costs, this Court misdirected itself or capriciously exercised its discretion. In conclusion the applicant has failed to show that there are prospects of success on appeal and therefore the application for leave to appeal stands to be dismissed with costs.

[13]   In the result the finding of this Court is that there are no reasonable prospects of success on appeal and therefore the application for leave to appeal is dismissed with costs.

 ____________________________

N. M. MAVUNDLA

JUDGE OF THE HIGH COURT

APPEARANCES

For The Applicant                   ADV R DU PLESSIS SC

Instructed By                          A KOCK & ASSOCIATES INC

 

For The 4th Respondent:       ADV J MITCHELL / ADV J MITCHELL (4TH RESPONDENT)

Instructed  by                          NORTONS  INCORPORATED

 

For the 5th respondent:        ADV A COMUZIO (STH RESPNDENT)

 

Instructed  by                          RACANELLO  ATTORNEYS

Date of hearing                       20 AUGUST 2015

Date of judgment                    03 SEPTEMBER 2015

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