Ardnamurchan Estates (Pty) Limited v Renewables Cookhouse Wind Farms 1 (RF) (Pty) Ltd and Others (1408/2015) [2020] ZAECGHC 132; [2021] 1 All SA 829 (ECG) (1 December 2020)

ON THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

REPORTABLE

Case No.: 1408/2015

Date of virtual hearing: 27 August 2020

Date Delivered: 1 December 2020

In the matter between:

ARDNAMURCHAN ESTATES (PTY) LIMITED

Applicant

and

RENEWABLES COOKHOUSE WIND FARMS 1 (RF)

(PTY) LTD

First Respondent

MICHAEL GEORGE WIENAND N O

Second Respondent

ANTON FREDERICK MANSARD WIENAND N O

Third Respondent

RUDOLPH PHILIP BOTHA N O

Fourth Respondent

(the Second to Fourth Respondents being sued in

their respective capacities as authorised trustees of

the LONGWOOD TRUST, IT 13/2007)

LOTDAAN (PTY) LIMITED

Fifth Respondent

THE REGISTRAR OF DEEDS

Sixth Respondent

JUDGMENT

KROON AJ:

INTRODUCTION

1. The Court has before it the Applicant’s application opposed by the First Respondent (“the main application”) which has been met by a conditional counter-application brought by the First and Fifth Respondents (“the counter-application”) which is in turn opposed by the Applicant.

2. Although the papers are voluminous, the salient facts and issues giving rise to the applications may be easily summarised. The First Respondent, an entity conducting a wind farming operation, erected a wind turbine on a farm owned by the Fifth Respondent. The Applicant, a property owning company, whose farm is adjacent to the farm owned by the Fifth Respondent, claims acquisitive prescription in respect of the land upon which the wind turbine has been erected and seeks the removal of the wind turbine. The First Respondent denies that the Applicant has acquired the land through acquisitive prescription and pleads, in the alternative, that the Applicant is estopped from claiming a right of prescription. The First and Fifth Respondents bring the counter-application for compensation in lieu of removal of the wind turbine and have tendered such compensation.

POINTS IN LIMINE

3. At the outset of the proceedings Mr Preis SC, who appeared on behalf of the Applicant, informed the Court that, although it was not raised as an issue in the practice note, the Applicant persisted with the submission that because the First Respondent’s answering affidavit was out of time and there was no application for condonation it fell to be disregarded and that the main application

was accordingly unopposed. He submitted that this issue should be determined separately from the merits of the main application.

4. Mr Kirk-Cohen SC, who appeared on behalf of the First and Fifth Respondents, reluctantly agreed that, if this was the stance of the Applicant, this issue should be determined separately because if the Court ruled that the First Respondent’s answering affidavit was not before it absent an application for condonation, then the First Respondent would wish to bring a substantive application for condonation.

5. Mr Preis further submitted that the locus standi of the First Respondent to oppose the main application should similarly be determined separately from the merits of the main application. Mr Kirk-Cohen was not however in agreement with this submission.

6. After hearing the parties on how the preliminary points raised should be adjudicated, the Court made an ex tempore ruling in terms of which the following issues were to be determined separately:

6.1. Whether condonation is necessary for the late delivery of the First Respondent’s answering affidavit.

6.2. If so, whether the First Respondent has foregone its right to apply for condonation.

6.3. If so, whether the First Respondent’s answering affidavit should nonetheless be allowed.

6.4. If the First Respondent’s answering affidavit is allowed, whether the Applicant’s replying affidavit should be allowed.

6.5. Whether the challenge to the locus standi of the First Respondent should be determined separately from the main application.

6.6. If so, whether the First Respondent has locus standi to oppose the relief sought in the main application.

THE LATE DELIVERY OF THE ANSWERING AND REPLYING AFFIDAVITS

7. The applicable chronology under this heading is as follows:

7.1. On 26 March 2015 the main application was brought by the Applicant.

7.2. On 21 April 2016 the First Respondent delivered an affidavit which was deposed to both in support of the opposition to the main application as well as in support of the counter-application.

7.3. On 3 July 2018 the Applicant delivered an affidavit which served both as a replying affidavit to the main application as well as an answering affidavit to the counter-application.

7.4. On 19 December 2019 the First Respondent delivered a replying affidavit in the counter-application.

8. Each of the above affidavits together with the ancillary confirmatory affidavits and annexures was substantial, the Court process

comprising some 750 pages.

9. The first question which thus arises for consideration is whether, in delivering a replying affidavit, the Applicant has effectively

abandoned or foregone its right to complain about the late delivery of the answering affidavit.

10. In the replying affidavit in the main application the Applicant sought to reserve its rights regarding the failure by the First Respondent to apply for condonation stating as follows:

“4. This replying affidavit is filed out of caution.

5. First and foremost, the First Respondent served and filed an answering affidavit more than a year out of time.

6. No condonation application has been brought and this affidavit is not before this Court.

7. The Applicant is only obliged to file a replying affidavit herein once and if condonation has been granted by this Court and this affidavit is filed only on the basis that should this Court grant condonation, (and the Applicant does not agree that condonation should be granted), that there is no time wasted.

8. The Applicant thus files this replying affidavit on the aforesaid basis, but by doing so does not condone the First Respondent’s late filing of its answering affidavit and conditional counter-application and does not waive any right to contest any condonation application which may be brought belatedly.

9. In fact the Applicant records that it will oppose any belated condonation application and without detracting from any other defence which the Applicant may raise in such opposition, the Applicant will primarily contest any condonation application on the basis that the First Respondent’s entire defence and conditional counter-claim is excipiable and that no prospects of success thus exist.”

11. Mr Preis submitted in substance that the late delivery of an answering affidavit without an application for condonation as envisaged by Rule 27(3) rendered the answering affidavit a nullity. He submitted that it should therefore be disregarded and that it was unnecessary for an application to be brought in terms of Rule 30 to have it set aside. The main application was thus unopposed, so he submitted.

12. He relied on Standard Bank of SA Ltd v Sewpersadh and Another[1], a case drawn to the attention of both Counsel by the Court when it became apparent that the Applicant was persisting with its

preliminary points.

13. In that matter the Court held that a further affidavit filed without the leave of the Court should be treated as pro non scripto[2] and that it was unnecessary for the opposing parties to have exercised their rights in terms of Rule 30 and to have applied to

have the irregular affidavit set aside.

14. Mr Preis submitted that on the strength of Standard Bank the First Respondent’s answering affidavit should similarly simply be disregarded.

15. The facts in Standard Bank are however, in my view, distinguishable. There the Court was required to address the status of a further affidavit delivered out

of sequence and in addition to the three sets of affidavits ordinarily allowed, namely supporting affidavits, answering affidavits and replying affidavits.

16. In Standard Bank the Court recorded that the offending additional affidavit “... was never part of the record at any stage”[3]. What had happened is that the applicant had taken it upon itself to “... simply slip the affidavit into the Court file...”[4] without even serving the affidavit on the other parties[5].

17. The Court was thus not required to pronounce on a situation where an affidavit, for which there is express provision in the Uniform Rules of Court (“the Rules”), is delivered out of time. Furthermore, given that the additional affidavit was not served on the respondents it would appear that the question of the respondents having taken a further step in the proceedings did not arise.

18. In response to the submissions made by Mr Preis, Mr Kirk-Cohen submitted that if the Applicant had been of a mind to object to the late delivery of the answering affidavit then it was required to have invoked the irregular step procedure contained in Rule 30.

19. He submitted that, having taken a further step, it was not open to the Applicant to complain, ex post facto, that the delivery of the First Respondent’s answering affidavit was irregular by reason of the absence of a condonation application. This was because, so he submitted, an election had been made when the replying affidavit was delivered.

20. I pause to mention that a further step in proceedings has been held to include the filing of a replication[6] in action proceedings and an answering affidavit[7] in application proceedings. There can be little doubt that a replying affidavit is an act which advances the proceedings one stage nearer completion and is accordingly a further step in the proceedings.[8]

21. In support of his argument Mr Kirk-Cohen referred to Jowell v Bramwell-Jones and Others[9], drawing to the attention of the Court that there is a plethora of authorities which have followed this judgment.

22. In the Court’s view there is much to be said for the argument advanced by Mr Kirk-Cohen that the Applicant has an election to either invoke Rule 30 or to deliver a replying affidavit notwithstanding the irregular answering affidavit.

23. An analogous situation arose in Mynhardt v Mynhardt[10] where the wrong form of the notice of motion was utilised. There the Court held that because the respondent had elected to

answer (and not to object), he had effectively abandoned or given up his right to challenge the admittedly irregular notice.[11]

24. In this matter it is difficult to see why similarly the Applicant should be permitted to have it both ways, namely to answer to the allegations contained in the answering affidavit but in the same breath to contend that the answering affidavit should be regarded as pro non scripto.

25. Thus, leaving aside the circumstance that the delivery of the replying affidavit would constitute a further step immunising the answering affidavit from attack, there is a material inconsistency in delivering a substantial replying affidavit to an answering affidavit which for all intents, so it is contended by the Applicant, does not exist. Notwithstanding the protestations contained in the introduction to the replying affidavit, the very delivery of a replying affidavit is in the Court’s view an acceptance of the fact that the answering affidavit was not to be treated as a nullity.

26. Expressed differently, in my view where, as in this case, an answering affidavit is delivered out of time and an applicant takes a further step by delivering a replying affidavit, that applicant is in the same position as an applicant who has agreed in terms of Rule 27(1) to afford a respondent an extension for the delivery of the answering affidavit.

27. If condonation was going to be an issue, then the Applicant was required to have engaged the First Respondent on this issue and to have conveyed to it that it regarded its answering affidavit as an irregular step because it had been delivered outside of the period allowed in terms of the Rules and that the First Respondent was required to file an application for condonation prior to the Applicant being required to deliver a reply.

28. If the response of the First Respondent had been that it did not intend to apply for condonation then it would have been open to the Applicant to have elected not to deliver a replying affidavit and to have adopted the stance that the application was unopposed.

29. For the purposes of this judgment it is unnecessary to decide the interesting question as to whether, in so doing, the Applicant could have adopted a supine approach and contended that the answering affidavit fell to be disregarded (in the sense that no pronouncement

to that effect was necessary) or whether the Applicant would, nonetheless, have been required to have brought an application to

have had it set aside as an irregular step.

30. It would certainly be prudent in such circumstances to bring an application in terms of Rule 30, if for no other reason than for the sake of certainty, as was done in University of North-West Staff Association and Others v Campus Rector of the University North-West and Others[12] where Mogoeng JP[13] set aside an answering affidavit which was late, recording as follows:

“Their filing of their answering papers out of time and without even seeking condonation for the late-filing of their papers was indeed an irregular step in terms of Rule 30.”[14]

31. If a party elects not to bring an application to set aside an alleged irregular proceeding then, even if that party does not take a further step, it runs the risk that the Court may condone or overlook what that party considers to be an irregular proceeding. Whilst it has been held that a Court does not need to set aside a proceeding which is truly a nullity and thus void, i.e. a step which is irreparable, determining what conduct amounts to a nullity as opposed to merely a condonable irregularity is often not a straightforward exercise.[15] Indeed, questions have been raised as to whether there is any non-compliance with the Rules which cannot be condoned[16] and these questions may now perhaps be posed with greater force given that the inherent power of the Court to regulate its process has been enshrined in the Constitution[17].

32. That aside, it follows from what is stated above that I am of the view that the delivery of an answering affidavit out of time without an application for condonation is not a nullity in the sense that it is not an irregular proceeding or step which is not capable of being condoned.

33. Had the Applicant followed the route described above and if, in response to an objection by the Applicant, the First Respondent had taken it upon itself to bring the requisite condonation application, the Applicant would then have been obliged to have delivered its replying affidavit and could then, should it have deemed it appropriate, therein oppose the condonation application.

34. Mr Preis further submitted that condonation was a question for the Court to decide and by that I understood him to submit that, leaving aside the conduct of the parties, this was a case where the Court should of its own accord raise the unexplained delay accompanying the delivery of the answering affidavit.

35. Whilst the Court has inherent jurisdiction to regulate its process, it is questionable whether the Court could make an issue of condonation where the parties had, albeit through their conduct, not done so[18]. It has also been held, in a different context, that a Court should not readily mero motu raise the question of a delay if it is not raised by the parties[19] because, inter alia, there may well be good reasons for the delay which the parties do not wish to disclose to the Court.

36. Insofar as the Court may have the power to do so in exceptional circumstances flowing from its inherent jurisdiction, it would not be appropriate to exercise such a power in this matter given that all the relevant and necessary documents for consideration in respect of the main application and the counter-application are before the Court and that the matter is ripe for hearing and furthermore given that there is no suggestion by either party of prejudice.

37. In Pangbourne Properties Ltd v Pulse Moving CC and Another[20] the Court was confronted by an analogous set of facts save that in that matter the respondent, whose answering affidavit was itself out of time, objected to the late delivery of the replying affidavit (and not the other way around as in the present matter).

38. In Pangbourne the Court distinguished Standard Bank on the basis on which this Court has done[21].

39. It further declined to follow Waltloo Meat and Chicken SA (Pty) Ltd v Silvy Luis (Pty) Ltd[22], a case which the Court appears to have interpreted as holding that if an affidavit is filed out of time and there is no application for condonation then it cannot be received by the Court.

40. In my view Waltloo is distinguishable and, with respect to the Court in Pangbourne, I do not think that it was correct to record in that judgment[23] that in Waltloo Poswa J was simply pronouncing on whether regard could be had to an affidavit filed out of time where there was no application for condonation.

41. The factual backdrop to Waltloo was that pursuant to an urgent application which had been struck from the roll for reasons relating to the issue of urgency and in terms of which the respondents had delivered answering affidavits complaining that they had been afforded insufficient time to deliver an answer to the urgent application, the applicant sought thereafter to resuscitate the application without following the correct procedure.

42. The Court found that because there was no request in terms of Rule 6(6) for the renewal of the application[24], the conduct of the applicant in that matter was tantamount to delivering a replying affidavit in response to a non-existent application and answering affidavit[25].

43. Importantly, the Court found that it was for this reason that it should not have regard to the content of the replying affidavit and furthermore that because the replying affidavit was, as it were, delivered in vacuo it was again for this reason (and not because it was out of time) that the Court concluded that the conduct of the applicant was akin to that of simply filing a further affidavit without leave, as happened in Standard Bank.[26]

44. Furthermore, in Waltloo the Court found that because the replying affidavit had been delivered simultaneously with a defective notice of motion[27] there was in fact prejudice to the respondents because they had not had adequate time to deliver an answer to the application.[28] Lastly in Waltloo the Court found that a further step had not been taken.[29]

45. Returning to the ratio in Pangbourne, the Court was of the view that the determining factor in assessing whether an affidavit should be allowed where there has been

non-compliance with the Rules was whether any party would suffer prejudice if the late affidavit was to be admitted. The Court

emphasized that what should always be borne in mind are the objects for which the Rules were designed and that the Rules are not an end in themselves to be observed for their own sake.

46. It is trite that one of the objects of the Rules is to secure the inexpensive and expeditious completion of litigation before the

Courts[30]. Thus, a Court should ensure that its Rules are utilized in such a way that justice is properly administrated and, in so doing, should guard against an application of the Rules which would prevent an expeditious ventilation of the issues before it.

47. When it comes to the inherent power of the Court to regulate its process it is apposite to have regard to Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd[31] wherein the Court considered the scenario where an application had been made to supplement a founding affidavit, and in disagreement

with the Court a quo, commented as follows:

“I am not entirely sure what is meant by the description of the application as ‘totally irregular’. If it is intended to convey that the application amounted to a deviation from the Uniform Rules of Court, the answer is, in my view, that, as has often been said, the Rules are there for the Court, and not the Court for the Rules. The court a quo obviously had a discretion to allow the affidavit. In exercising this discretion, the overriding factor that ought to have been considered was the question of prejudice. The perceived prejudice that the respondent would suffer if the application were to be upheld, is not explained. Apart from being

deprived of the opportunity to raise technical objections, I can see no prejudice that the respondent would have suffered at all. At the time of the substantive application, the respondent had already responded – in its rejoining affidavit – to the matter sought to be included in the founding affidavit. The procedure which the appellant proposed would have cured the technical defects of which respondent complained. The respondent

could not both complain that certain matter was objectionable and at the same time resist steps to remove the basis for its complaint. The appellant's only alternative would have been to withdraw its application, pay the wasted costs and bring it again supplemented by the new matter. This would merely result in pointless waste of time and costs. For these reasons the applicant's substantive application to supplement its founding affidavit should, in my view, have succeeded.”

(own underlining)

48. Similarly in this matter the Applicant has already responded to the matter in the answering affidavit and requiring the First Respondent to bring an application for condonation would, in the Court’s view, also be a “... pointless waste of time and costs”.

49. To sum up, a Court will always have a discretion to allow an affidavit notwithstanding any non-compliance with the Rules if it is in the interests of justice to do so. In exercising that discretion the Court will consider whether any party will be prejudiced by allowing the affidavit and furthermore whether allowing the affidavit will be conducive to the proper and expeditious ventilation of the dispute before it. Procedural objections should not readily be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible,

inexpensive decision of cases on their real merits.[32]

50. In Pangbourne the Court’s pronouncement on the preliminary point raised therein culminated in the following conclusion:

“On the facts of the present matter I deem it unnecessary for either of the parties to have brought a substantive application for

condonation. See McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) at 643C-F, Hessel’s Cash and Carry v SA Commercial Catering and Allied Workers Union 1992 (4) SA 593 (E) at 599F-600B and the unreported matter of The National Director of Public Prosecutions referred to above.

In the matter under consideration all the papers are before me and the matter is ready to be dealt with. To uphold the argument that the replying affidavit and consequently also the answering affidavit, fall to be disregarded because they were filed out of time will be too formalistic an exercise in futility and leave the parties to commence the same proceedings on the same facts de novo.

[19] There is no allegation of prejudice to any party nor have I been referred to any such prejudice if the matter is to be disposed of on its merits despite the late filing of the answering and replying affidavits. The failure of the respondent to utilise the provisions of Rule 30 regarding the setting aside of irregular proceedings strengthens my view that neither party was prejudiced by the late filing of the affidavits.

It is in the interests of justice that the affidavits be taken into account and that this matter be finalised and unnecessary additional

costs be avoided. Insofar as it may be necessary and within my discretion to allow the late filing of the answering affidavit and

the late replying affidavit, I do so in order to decide the merits of the dispute between the parties unfettered by technicalities.”

51. The sentiments expressed above apply with equal force in this matter.

52. There was no allegation of any prejudice which the Applicant would suffer if the answering affidavit were to be allowed nor could there have been any such suggestion given that the Applicant has delivered a substantial replying affidavit in response to the answering affidavit and, it might be added, has taken its time to do so.

53. To exacerbate matters, it was expressly recorded in the objection to the answering affidavit (as contained in the replying affidavit) that if an application for condonation was to be forthcoming it would be challenged “primarily” on the basis that the defence set out in the answering affidavit and the counterclaim lacked prospects of success[33]. If the fate of any condonation application would, in any event, turn on the merits of the main application and the counter-application

then this would be all the more reason as to why no purpose could be served in requiring a condonation application.

54. Lastly, and without wishing to belabour the point, there is the circumstance that this matter, which has had a lengthy history, is ripe for hearing and to postpone it so that an application for condonation could be brought would, in the words of Pangbourne, “be an exercise in futility”.

55. Indeed, given the stage the litigation had reached as well as its protracted history and the circumstance that all parties were ready to argue the merits of the application, it is difficult to understand why the point was taken at all when the hearing commenced. The outcome of raising it must or should have been easily predictable by the Applicant and its representatives[34].

56. In Mynhardt similar concerns were raised, the Court observing:

“... Anders as in die gemelde saak het die respondent, na betekening van die foutiewe kennisgewing, dit egter goed gedink om volledig daarop te antwoord en dit het veroorsaak dat die aangeleentheid as ‘n bestrede aansoek voor die Hof geplaas is, In die lig van die kennis wat die respondent van die aansoek gekry het en van sy reaksie daarop, is daar by my geen twyfel dat hy hoegenaamd nie deur die gebruikmaking van die verkeerde vorm van kennisgewing benadeel is nie. Dit kom my dus anomalies voor dat die respondent in hierdie stadium hom op die beweerde nietigheid van die kennisgewing van aansoek kan beroep...”

57. The Court is constrained to express a degree of disquiet at the conduct of the Applicant when assessed against the broader context of the litigation. The Applicant was dominus litis and, after the answering affidavit had been delivered, it took two years to deliver its replying affidavit. It was probably correct for the Applicant to take the stance that until an application for condonation had been delivered in respect of the answering affidavit,

there was no obligation on it to have delivered a replying affidavit. However, once the Applicant ultimately elected to do so, after such a long time, it then sought not only to complain about the length of time taken by the First Respondent to deliver the answering affidavit (a period which was substantially shorter than the period it had taken to deliver the replying affidavit) but, having done so, it went further and threatened to set the matter down on the unopposed roll when it was patently opposed.

58. In conclusion the Court finds that the Applicant has foregone its right to object to the late delivery of the answering affidavit and that, even if the Court is wrong in this regard, it would be in the interests of justice that such answering affidavit together with the replying affidavit be admitted.

59. Nothing in this judgment should of course be interpreted as endorsing a fairly common assumption amongst practitioners that an insistence on compliance with the Rules amounts to some type of formalism or what is often termed an overly technical approach. The maxim that the Rules are for the Court and not the other way around should not be used as a licence by practitioners to ignore the existence of the Rules. Rather what that maxim really means is that the administration of justice is not served if there is a slavish adherence to the Rules without giving proper consideration to their underlying purpose.

LOCUS STANDI OF THE FIRST RESPONDENT

60. Under this heading, if I understood Mr Preis correctly, he submitted that the objection to the locus standi of the First Respondent to oppose the main application could easily be determined separately because the First Respondent was in the same position as a third party, it not being a registered owner of the disputed piece of land.

61. Mr Kirk-Cohen in response contended that the question of locus standi was intertwined with the merits of the matter.

62. Leaving aside the circumstance that a lack of ownership is not, in and of itself, necessarily dispositive of the question of locus standi, the natural question which arises is if the First Respondent had no legal interest in the outcome of the application, why then was it cited as a respondent?

63. The reason for citing the First Respondent is apparent from the notice of motion in terms of which, on the back of an allegation in the founding affidavit that the First Respondent unlawfully encroached upon the land which the Applicant contends belongs to it, the Applicant seeks relief against the First Respondent.

64. The relief sought includes that of a mandamus directing the First Respondent to remove, at its cost, the wind turbine erected on the Applicant’s property and, again at its cost, to restore the fence in question to its original position.

65. The First Respondent contends that it has expended twenty million Rand constructing the wind turbine and that the cost of removal would be fifteen million Rand. Thus, if the application is granted it is the First Respondent’s contention that it will be some thirty-five million Rand out of pocket.

66. In the Applicant’s heads of argument[35] it is acknowledged that the relief sought against the First Respondent is dependent on the Applicant obtaining declaratory relief

that it has, through acquisitive prescription, acquired ownership of the disputed land.

67. The question as to whether, in these circumstances, it can be said that the First Respondent lacks locus standi to oppose the main application or that it possesses locus standi only to oppose the relief sought directly against it, is not appropriately answered separately from the merits of the main application.

68. Whilst it is true that the question of locus standi may, in certain circumstances, be resolved separately, this is not always possible. In Gross and Others v Pentz[36] the following was explained by Harms JA:

“The question of locus standi is in a sense a procedural matter, but it is also a matter of substance. It concerns the sufficiency and directness of interest in the litigation in order to be accepted as litigating party (Wessels en Andere v Sinodle Kerkkantoor Kommissie van die Nederuitse

Gereformeerde Kerk, OVS 1978 93 SA 716 (A) at 725H: Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A) at 388B-E), The sufficiency of interests is ‘altyd afhanklik van die besondere feite van elke afsonderlike geval, en geen vaste of algemeen geldende reëls kan neergelê word vir die beantwoording van die vraag nie...’ (Jacobs en ‘n Ander v Waks en Andere 1922 (1) SA 521 (A) at 534D). The general rule is ‘that it is for the party instituting proceedings to allege and prove that he has locus standi, the onus of establishing that issue resets upon the applicant. It is an onus in the true sense; the overall onus ...’ (Mars Incorporated v Candy World (Pty) Ltd [1990] ZASCA 149; 1991 (1) SA 567 (A) at 575H-I). It follows from this that the question cannot always be settled ab initio and that it is an inherent risk of litigation but it may only at the end of the matter be established whether the locus standi was present or not...”

69. It seems to me that the submission by Mr Kirk-Cohen that the question of locus standi is bound up with the merits of the application is valid and, having not been addressed on the merits of either the main application or the counter-application, it would in the view of the Court be undesirable for the Court to make a finding on this issue at this

stage. This is more so where the Court was not favoured with any authorities on this important point.

COSTS

70. As the First Respondent has been successful in opposing the preliminary objections raised by the Applicant, the Applicant must bear the costs attendant thereon.

71. The Court was initially requested by Mr Kirk-Cohen to make an order specifying that the costs incurred should include the costs of Senior Counsel. In response to this request, I expressed the preliminary view that this would be superfluous and may amount to usurping the functions of the taxing master. I understood Mr Kirk-Cohen to indicate that he would not persist with this request pursuant to an instruction received from his instructing attorney shortly before the adjournment of the hearing.

72. For the sake of completeness, I refer to City of Johannesburg Metropolitan Municipality v Chairman of the Valuation Appeal Board for the City of Johannesburg and Another[37] wherein Leach JA recorded as follows:

"... the first respondent was represented in this appeal by a senior counsel who appeared alone. He asked for costs 'on the scale of senior counsel'. I know of no such scale. Should the complexity of a matter and the amount involved justify the employment of two counsel as a wise and reasonable precaution, a court will make a special order in that regard. Where a single counsel is employed, no special order is required and it is for the taxing master to determine a fair and reasonable fee to be allowed on taxation. Even where the matter is one deserving of the employment of senior counsel (which this clearly is) it would be wrong for a court to somehow attempt to fetter that discretion; just as it would be wrong for a taxing master not to consider the reasonableness of a senior counsel's fee in a deserving case merely as the court did not order that the fee of a senior counsel should be allowed. I therefore see no need to make any specific order as to costs·.”

73. It would thus not be appropriate for the Court to make such an order save to suggest that this is a matter where the engagement of Senior Counsel was amply justified.

THE FOLLOWING ORDER IS ISSUED:

1. The point in limine is dismissed.

2. The answering affidavit to the main application is admitted.

3. The issue of the First Respondent’s locus standi in judicio to oppose the main application will be for the Court hearing the main application to adjudicate upon.

4. The Applicant is to pay the First and Fifth Respondents’ costs in respect of the unsuccessful objection in limine including the costs of the hearing on 27 August 2020.

P N KROON

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the Applicant: Adv Preis SC instructed by FJ Senekal Inc. care of Nettletons

For the First and Fifth Respondents: Adv Kirk-Cohen SC instructed by Cliffe Dekker Hofmeyr care of Neville Borman &

Botha

[1] 2005 (4) SA 148 (C) at 154I-J. In his response, Mr Kirk-Cohen quite properly drew to the attention of the Court that Standard Bank was cited with approval in Hano Trading v JR 209 Investments 2013 (1) SA 161 (SCA).

[2] at 155 D – F

[3] at 154 I – J

[4] at 155 E

[5] at 155 A – B

[6] Odendaal v De Jager 1961 (4) SA 307 (O) at 310 D

[7] Graham v Law Society, Northern Provinces 2016 (1) SA 279 (GP) 287 E – F.

[8] See the discussion in Odendaal v De Jager 1961 (4) SA 307 (O) 310 D – G.

[9] 1998 (1) SA 836 (W) at 845

[10] 1986 (1) 456 (T)

[11] at 461 G – E

[12] (471/2007) [2007] ZANWHC 51 as delivered on 27 September 2007

[13] before his elevation to the Constitutional Court

[14] at paragraph [16]

[15] Minister of Prisons and Another v Jongilanga 1985 (3) SA 116 (A) at 123 G – H. Krugel v Minister of Police 1981 (1) SA 765 (T) at 768.

[16] Mynhardt at 463 E - J and 464 A - B

[17] Section 173 of the Constitution provides that: “The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.”

[17] Section 173 of the Constitution provides that:

“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.”

[18] Cf. PL v YL 2013 (6) SA 28 (E) at 41 F - H.

[19] Mamabolo v Rustenburg Regional Local Council [2000] ZASCA 133; 2001 (1) SA 135 (SCA) at para [10]

[20] 2013 (3) SA 140 (GSJ)

[21] at 144 I to J

[22] 2008 (5) SA 461 (T)

[23] at 145 B – E and 147 G – I

[24] at 471 H

[25] at 473 H – I and 475 F

[26] at 472 G – I and 473 A – D

[27] at 472 G and 476 C

[28] at 476 D – G

[29] at 474 B – C

[30] Federated Trust Limited v Botha 1978 (3) SA 645 (A) at 654 C – F

[31] 2007 (2) SA 363 (SCA)

[32] Gardiner v Survey Engineering (Pty) Ltd 1993 (3) SA 549 (SE) 551 F – H.

[33] Paragraph 9 of the Applicant’s replying affidavit.

[34] Cf. the remarks of Cloete J in Uitenhage Municipality v Uys 1974 (3) SA 800 (E) at 806 A - C

[35] Paragraph 5

[36] [1996] ZASCA 78; 1996 (4) SA 617 (A) at 632

[37] 2014 (4) SA 10 (SCA)