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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: M619/2016

In the matter between:-

LONMIN LTD                                                                                          1^ST APPLICANT

ANGLO AMERICAN PLATINUM LTD                                                    2^ND APPLICANT

THE MINISTER OF FINANCE                                                                3^RD APPLICANT

Q-LINK (PTY) LTD                                                                                  4^TH APPLICANT

AND

C.G. STEYN INC                                                                                1^ST RESPONDENT

t/a STEYN ATTORNEYS

EMERALD DUNES INVESTMENTS 57 CC T/A WOZA CASH          2^ND RESPONDENT

ADVANCE, PAYDAY CASH ADVANCE

MIDNIGTH SPARK TRADING 400 CC                                            3^RD RESPONDENT

WEST POINT TRADING 13BK T/A BAPONG CASH LOANS           4^TH RESPONDENT

BITLINE SA 510 CC           t/a LOAN TECH FINANCIAL SERVICES &       5^TH RESPONDNET

CASH CARD SALARY ADVANCE.

HOLOGRAPHIX PROPERTIES 512 BK                                                6^TH RESPONDENT

t/a CASH BOX FINANCIAL SERVICES

GREENVILLE TRADING 7 BK t/a PLATINUM CASH ADVANCE,   7^TH RESPONDENT

CASH TODAY

D EN AG FOURIE BK t/a CASH FOR CASH 1, CASH FOR CASH 2

TLAYANG FINANCIAL SERVICE,                                                       8^TH RESPONDENT

CITY FINANCIAL SERVICES, LETHABO FINANCIAL SERVICES

EASTERN BLUE INVESTMENTS 186 BK                                            9^TH RESPONDENT

t/a FAST CASH FINANCIAL SERVICES

BLUE RAINDROPS TRADING 59 CC t/a READY CASH                   10^TH RESPONDENT

EUNEVER TRADING 11CC T/A SEVCO FINANCE                            11^TH RESPONDENT

TUBA FINANCE                                                                                   12^TH RESPONDENT

THE MINISTER OF JUSTICE & CONSTITUTIONAL                         13^TH RESPONDENT

DEVELOPMENT

THE MINISTER OF TRADE & INDUSTRY                                          14^TH RESPONDENT

THE NATIONAL CREDIT REGULATOR                                             15^TH RESPONDENT

ASSOCIATION FOR DEBT RECOVERY          AGENTS                   16^TH RESPONDENT

THE LAW SOCIETY OF THE NORTHERN PROVINCES                  17^TH RESPONDENT

GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA                 1st AMICUS CURIAE

NEDBANK LTD.                                                                              2nd AMICUS CURIAE

APPLICATION FOR LEAVE TO APPEAL

KGOELE J

DATE OF HEARING            :        09 NOVEMBER 2018

DATE OF JUDGMENT         :        13 DECEMBER 2018

FOR THE APPLICANT         :        Adv. H N De Wet

FOR 1^st RESPONDENT       :        Adv. S M Van Vuuren With Him Adv C Pienaar

FOR 17^th RESPONDENT     :        Adv. M A Badenhorst SC

FOR 1^st AMICUS CURIAE   :        Adv. JHF Pistor SC          

_____________________________________________________________________

JUDGMENT

_____________________________________________________________________

KGOELE J.

INTRODUCTION

[1]        This is an application for leave to appeal the judgment including the costs Order of this Court granted on the 6 March 2018.  The application was opposed by the first and the seventh respondents including the first Amicus Curiae (GCB).

[2]         It is important to indicate from the onset that neither in the grounds set for the application for leave to appeal nor in the arguments contained in the heads of arguments of the applicants was it submitted or argued that the Court did not have a discretion in coming to a decision to either postpone or dismiss the application that was before it.  It appears that the applicants belatedly realised this anomaly when the issue of the discretion exercised by this Court was raised by all the parties opposing this application in their heads of argument.  This prompted the applicants to hand in to this Court an “Additional Note by the Applicants” when the application was argued from where the applicants’ Counsel basically argued their application from, although some references were also made to the heads or arguments they initially filed.  This constitutes the first reason why in my view, is best to quote this “Additional Note” verbatim as the grounds the applicants relied upon because the contents  comes nearer to the main issue which this Court has to grapple with in this application.  Secondly, the grounds of Appeal in the notice of Appeal have been drafted in a long and convoluted manner, and mainly consists of a re-hash of the issues raised during the main hearing of the application argued before this Court, albeit raised in a different format.

[3]      The “Additional Note by Applicants” was couched as follows: 

                “ 1.                 The learned Judge exercised her discretion and found that it was in the   interests of justice to dismiss the application due to non-joinder

                    2.                  It is accepted that this discretion is a narrow one. 

                  3.                  A higher court will only interfere with the exercise of a discretion by a lower court “if it were shown that the discretion had not been exercised judicially or had been exercised based on a wrong appreciation of the facts or wrong principles of the law.” (Biowatch Trust v Registrar Genetic Resources & Others 2009 (10) BCLR 1014 (CC))

                      4.  It is respectfully submitted that the learned Judge made the following material factual and/or legal mistakes:

a.            The learned Judge misunderstood the proposal that was made by Applicants’ counsel relating to the joinder of the consumers be joined. The offer was not that the consumers will be joined within two weeks of the order but rather that an application will be launched for joinder within two weeks. Where such an application is not launched that the main application be then dismissed automatically (Record p 134 – 145);

b.            The learned Judge did not consider the concession by Applicants’ counsel that the wasted costs which would be occasioned by such a postponement, would be for the account of the Applicants;

c.            The learned Judge incorrectly found that prayers 1 to 3 of the notice of motion constitutes the heart of the application; (Paragraphs 19 and 38.1 of the Judgment);

i.In fact, the prayers in the notice of motion are not dependant on one another;

ii.The locus standi of the Applicants is not dependant on the existence of prayers 1 to 3. (The contrary is implied in paragraph 38.1 of the Judgment);

iii.The issues to be argued constitute almost exclusively legal argument. Reformulated prayers would have no effect on the filing of further affidavits.

d.            That the Applicants “unilaterally” stopped complying with orders, and that, as a result, the Applicants did not come to Court with clean hands.  (Paragraph 40 of the Judgment). Emolument Attachment Orders are not court orders. Also, if the Applicants are correct, there will be nothing left of the EAO to pay;

e.            The withdrawal of the Minister of Finance is crucial to the application at least as its 79 employees are concerned (paragraph 38.4 of the Judgment).   At all relevant times, Q-Link Holdings (Pty) Ltd had the necessary locus standi to launch these proceedings even in respect of these employees. In any event, non-joinder was argued not locus stand.

5.            It is also respectfully stated that the learned Judge was wrong that it would be in the interests of justice to dismiss the application. In fact, it would be in the interest of justice for the application to continue for the following reasons:

a.            The National Credit Regulator (“NCR”) supports the Applicant’s interpretation of Section 103(5) of the NCA read with the definition of “a collection costs” in the same Act. Despite promising to launch an application for a declaratory order the NCR has, to date, done nothing;

b.            The importance of this application cannot be overstated. Considerable legal uncertainty remains;

c.            The judgment confirms (correctly) that the issues to be argued consist almost exclusively of legal argument. There is no risk that the Honourable Court would be swamped by paper;

d.            The consumers would have suffered no prejudice had this application been postponed in order for them to be joined. It is difficult to imagine how this application would not be for the ultimate benefit of the consumers;

e.            The Applicants’ benefit, if they succeed, are limited and of a contingent nature. They are acting in the public interest;

f.             Even though the Law Society of South Africa (“LSSA”) was represented on the first occasion, they chose not to join the subsequent proceedings.

6.            The appeal is also directed against the punitive cost order. The granting of a cost order is also an exercise of a discretion in the narrow sense. In constitutional litigation (as this was) the primary consideration is the way in which a cost order would hinder or promote the advancement of constitutional judgment. (Biowatch)”

[4]        It is clear from the reasons of the judgment that I gave that the Order that was granted by this Court to dismiss the application solely on the reason of non-joinder and the Costs Order that followed, were based on the discretion this Court exercised. Our Courts have over many years held that the right of an Appeal Court to interfere in the exercise of such a discretion is very limited.  Once again the applicants had to concede to this approach to be the correct one applicable in this application for leave to appeal, thanks to all the parties that opposed this application. 

[5]     In Beaument v Beaument 1987 (1) SA 967 (A) at 1002 A to D the Court remarked a follows amongst others:-           “The discretion to be exercised was vested in the trial Judge. When once it is found, as I have done, that he had not misdirected himself, and that he had not exercised his discretion improperly, the room for this Court to interfere with the result arrived at by him, is very limited indeed. That is always the case when the exercise of a discretion is involved. In the particular context with which we are concerned here, I would quote the following passage from the judgment of Ormrod LJ in Preston v Preston 1982 Fam 17 (CA) at 29, where he approved of what had been said in an earlier case:  “We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.'

[6]        The same approach is usually adopted with regard to costs Orders including Special costs.  In the case of Attorney – General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) at 670 D the Court remarked:-

“In awarding costs the Court of first instance exercises a judicial discretion and a Court of appeal will not readily interfere with the exercise of that discretion. The power of interference on appeal is limited to cases of vitiation by misdirection or irregularity, or the absence of grounds on which a court, acting reasonably, could have made the order in question. The Court of appeal cannot interfere merely on the ground that it would itself have made a different order.”

 [7]       I am of the view that all the submissions made by the applicants in their grounds of Appeal including, in their “Additional Note” does not justify the fact that I did not exercise the discretion this Court had judicially, or that it had been based on a wrong appreciation of the facts or wrong principle of the law, to justify interference on Appeal.  It is not correct that this Court misunderstood the proposal that was made by the applicant’s Counsel relating to the joinder of the consumers and other parties.  My judgment clearly indicates that this Court dealt with the fact as raised by the applicants that an application of joinder will be made within two weeks which, I found in my view, not to be practically possible, taking into consideration the facts which became common cause that quite a number of necessary parties had to be joined in the application to be made within two weeks.  Counsel representing the applicants could not point out the paragraphs nor any basis that gave the applicants the impression that this Court misunderstood the application of the postponement of the matter, and had to painfully so, concede to the fact that this was not a well founded ground to rely on as well.

[8]        With the risk of repeating myself, I wish to state that there is a substantial number of consumers to be joined in this application.   The manner in which the non-joinder of the consumers to the declarator was sought to be amended and rectified and the period suggested during the main application, was in itself prejudicial to the consumers alone.  Their rights are at stake and not whether there is some compliance with regard to their joinder.  But of particular importance is that, the concessions made by the applicants regarding the other various parties besides the consumers that ought to have been joined resulted in the logical finding of vital and substantial non-joinder.  People who have interest in the reframing of the legal position and who will have to live by the rule or declarator this Court will make going into the future are vital to be joined.  It is not for the applicant to pick and choose who to join or not join.

[9]        It should also be pointed that the withdrawal of the applicants of prayers 1,2 and 3 of their notice of motion could not on its own salvage the application of the applicants that was before this Court because, the remainder of the relief still sought by the applicants, will have the effect that the Order prayed for could not stand on the papers that were before Court.  What is clear is that a new application with new facts setting out the reasons or basis on which the applicants want to approach this application in future, and or why there should be a recalculation will have to be made.  All of these arguments were raised before this Court and were taken into consideration.  In fact, it is for the applicants to sit and re-think this application in its entirety because it was defectively conceived, especially as to who must and should be parties to the proceedings.  It is not for the applicants to try and resurrect a defective application which, in my view, could not be rectified in its current form.  This Court exercised its discretion when it was faced with this issue of a vital and substantial non-joinder, which in my view, the manner and time frames as proposed by the applicants, had no prospect that it will cure the defect.  This case is not just a simple case but a serious one which needs to be meticulously attended to.  It is not the duty of the Court to assist the applicants as to how they should go about in bringing their application.

[10]      As far as costs are concerned, I wish to indicate that in addition to the reasons I have given in my judgment, I took into consideration the fact that the applicants have not up to the time they made these crucial concessions of non-joinder explained why in the first instance, they did not join the relevant parties in compliance with the Rules of Court when the opposing parties made them aware of this issue long before it was argued.  Litigation in this matter started at the end of 2016, and all the parties involved had already incurred substantial costs pursuant to the institution and previous postponement of the application.  The applicants did not simply put forward any facts which could justify further costs to be incurred by the respondents purely for the sake of enabling the applicants to do what they should have done initially and without any prospects that their proposed steps will cure the defect (of non-joinder) in their application.

[11]      Although not expressly stated, it appears that the present application is made in terms of Section 17(1)(a)(i) of the Supreme Courts Act 10 of 2013.  In the case of Notshokovu v S (157/15) [2016] ZASCA 112 (7 September 2016) the Court held:-

“An appellant, on the other hand, faces a higher and stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959”.

[12]      The applicants must, therefore, convince this Court on proper grounds that they have prospects of success on Appeal and that those prospects are not remote, but have a realistic chance of succeeding that another Court would come to a conclusion that their Appeal would succeed.

[13]      Moreover, when a Court of first instance has refused to enquire into the alleged right or obligation in respect of which declaratory relief is sought (in this case as a consequence of non-joinder) a Court of Appeal will not interfere with such refusal in a case in which the Court a quo was convinced that the application is not capable nor ripe for determination.  As an emphasis the following was said in the case of Ex parte Van Schalkwyk N.O. and Hay N.O. 1952 (2) SA 407 AD in the headnote C-D read with page 410 H- 411 B.

“When a Court of first instance has refused to enquire into the alleged right or obligation, the Appellate Division will not interfere with such refusal in a case in which it is convinced that the application is not capable nor ripe for determination.

A right or obligation in abstracto is not capable of being enquired into or determined.

A Court cannot enquire into nor determine an alleged right unless it knows the person/s against whom or in whose favour its determination will apply, and such person/s must naturally be afforded an opportunity of defending their interest in Court.”

[14]      I come to the conclusion that the applicants did not succeed in convincing this Court on proper grounds that there is a reasonable prospect of success that another Court would come to a different conclusion and/or that their appeal would succeed.

[14]      The following Order is thus made:-

14.1    The application for leave to appeal to the Full Bench of this Division or the Supreme Court of Appeal is hereby dismissed with costs, such costs to include costs consequent upon the employment of two Counsel and/or a Senior Counsel where applicable.

________________

A.M. KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS

FOR THE APPLICANT      :           Rooth & Wessels Inc.

                                                       C/O Minchin & Kelly Inc

                                                       9 Proctor Avenue

                                                        MAHIKENG

                                                         2745

AND TO         :           Carstens Gericke Attorneys

                                    C/O Smith Stanton Inc Attorneys

                                    29 Warren Street

                                    MAHIKENG

                                    2745

FOR THE RESPONDENT :           Arnoud Van Der Bout Inc

                                                       C/O Van Rooyen Tlhapi Wessels Inc

                                                        Letagus House, 9 Proctor Avenue

                                                        Cnr Shippard Street

                                                            MAHIKENG

                                                            2745

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