Clairison's CC v MEC for Local Government, Environmental Affairs and Deveopment Planning and Another (26165/2010) [2011] ZAWCHC 469; 2012 (3) SA 128 (WCC) (22 September 2011)

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE CASE NO. 26165/2010

In the matter between:CLAIRISON'S CC APPLICANTAnd

THE MEC FOR LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS ANDDEVELOPMENT PLANNING FIRST RESPONDENTBITOU MUNICIPALITY SECOND RESPONDENT

Coram: DLODLO, J

Judgment by: DLODLO, JFor the Applicant : ADV. S. ROSENBERG (SC) Assisted by: ADV. S. VAN ZYLInstructed by: Truter Attorneys

C/o Marais Muller Yekiso Inc. 4 th Floor, General Building

42 Burg StreetCAPE TOWN(REF. ET/B02047)

For the 1st Respondent : ADV. A. BREITENBACH (SC) Assisted b: ADV. F. ESSOPyInstructed: State Attorney

4 th Floor, Liberty Centre

22 Long Street CAPE TOWN(REF. M FAURE – 3577/10/P22)

For the 2nd Respondent: ADV. E. FAGAN (SC)Instructed: : John Gillespie Attorneys

C/o Edward Nathan Sonnenbergs 1 North Wharf Square Loop Street CAPE TOWN(REF. E BRAND/vdk/0315254)Date(s) of Hearing : 6 SEPTEMBER 2011 Judgment delivered on: 22 SEPTEMBER 2011

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:CLAIRISON'S CC APPLICANTAndTHE MEC FOR LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING FIRST RESPONDENTBITOU MUNICIPALITY SECOND RESPONDENT

JUDGMENT DELIVERED ON THURSDAY, 22 SEPTEMBER 2011

DLODLO, J

[1] The First Respondent seeks an order that the Affidavit by M L Gericke dated 17 June 2007, filed by the Second Respondent (hereinafter "the Second Respondent's Affidavit") be struck out in its entirety. In the alternative, the First Respondent seeks leave to file a Supplementary Answering Affidavit dealing with the Second Respondent's Affidavit. The Applicant opposes the striking out of the Second Respondent's Affidavit. It, however, does not object to the First Respondent delivering a Supplementary Answering Affidavit dealing with the Second Respondent's Affidavit. The general rule is that an application to strike out matter from an Affidavit should not be brought as a separate interlocutory application prior to the hearing, but should be brought as a preliminary application at the hearing of the main application. See Herbstein & Van Winsen's The Civil Practice of the Supreme Court of South Africa at 502 and authorities collected at footnote 43. In order to order to obviate this difficulty the First Respondent does not seek the striking out on specified Rule 6 (15) grounds of designated portions or paragraphs of the Second Respondent's Affidavit. Mr Breitenbach SC and Mr Rosenberg SC appeared for the First Respondent and the Applicant respectively.

BRIEF BACKGROUND[2] The Applicant launched an application (main application) for an order in the following terms:

(a) Reviewing and setting aside or correcting the decision of the First Respondent taken in terms of section 35 (4) of the Environment Conservation Act 73 of 1989 ("the ECA") as communicated in the First Respondent's town planner dated 28 April 2010, dismissing the appeal of the Applicant for environmental authorisation in terms of section 22 (1) of the ECA for a change of land use in respect of the remainder of portion 53 (a portion of portion 3) of the farm Ganse Vallei No 444 Plettenberg Bay. There are two Respondents in the main application i.e. First and Second Respondents. The Second Respondent is a Municipality established in terms of section 12 of the Local Government: Municipal Structures Act 117 of 1998 . According to the main application, the Second Respondent is cited only by reason of its legal interest in the outcome of the main application and no relief is sought against it. On 8 March 2011 the Second Respondent delivered a notice to abide. Thereafter on 11 April 2011 the First Respondent delivered his Answering papers. On 12 May 2011 the Applicant delivered his Replying papers. Importantly, on 20 June 2011 the Second Respondent delivered an Affidavit by one of its officials, one Mr Ludolph Gericke, dated 17 June 2011 (filed at pages 521-548 in the main application). It is the filing of an Affidavit by the Second Respondent that has moved the First Respondent to launch the present proceedings. The First Respondent has applied to strike it out. According to the First Respondent this Second Respondent's Affidavit includes attacks on the validity of the First Respondent's decision to refuse the environmental authorisation for the Applicant's proposed development, i.e. the decision which the Applicant has impugned in the main application. The Second Respondent's so-called attacks are summarized in the First Respondent's Affidavit in the present application to strike out. I have been directed to what the First Respondent regards as attacks to himself.

DISCUSSION[3] Relying on the provisions of Rule 6 (5) (e) or rule 12 (read with Rule 6 (14)) of the Uniform Rules of Court, Mr Breitenbach submitted that having delivered a notice to abide, the Second Respondent is not permitted to deliver an Affidavit without the leave of the Court. It is common cause that no such leave was sought. It is true that Rule 6 (5) regulates the delivery of Notices and Affidavits in motion proceedings. Rule 6 (5) (a) read with form 2 (a) provides that every application shall be brought on notice of motion supported by an Affidavit. That is obviously a reference to the Founding Affidavit. Rule 6 (5) (b) and (d) (i) provides for the giving of a notice by the Respondent to the Applicant as to "whether he intends to oppose such application". Rule 6 (5) (d) (ii) provides that [a] any person opposing the grant of an order sought in the Notice of Motion shall 'within fifteen days of notifying the applicant of his intention to oppose the application, deliver his answering affidavit, if any, together with any relevant documents.' Rule 6 (5) (e) provides that within 10 days of the service upon him of the Respondent's Answering Affidavit, the Applicant may deliver a Replying Affidavit.

[4] There is indeed no express provision made in Rule 6 (5) for the delivery of any Affidavits by a Respondent who has not delivered a notice of opposition. It is true that under Rule 6 (5) (e) the Court may in its discretion permit the filing of further Affidavits. Mr Breitenbach maintained that the Second Respondent has not applied for admission of its Affidavit. Instead, it has delivered a notice to abide by the decision of the Court in the present application to strike out (save for the order that it pays costs). In Mr Breitenbach's submission one of several Respondents in an application who supports the relief sought by the Applicant against one of his co-Respondents cannot simply deliver an Affidavit. Mr Breitenbach submitted further that the Respondent must apply to intervene as co-applicant in terms of Rule 12 read with Rule 6 (14) of the Uniform Rules of Court. Mr Breitenbach continued in his submissions as follows:

"If the application for intervention is granted, it will be subject to directions giving the respondent against whom the relief is sought a proper opportunity to answer the affidavit of the intervening co-applicant. (One of several respondents in an application who wants relief against one of his co-respondents which is different or wider than the relief sought by the applicant, must either institute a separate application against that respondent or bring a counter-application in terms of Uniform Rule 6 (7) (a). " I deal with these submissions later on infra.

[5] In addition (Mr Breitenbach submitted) having delivered a notice to abide, the Second Respondent is not permitted to take the Applicant's side in the dispute between the Applicant and the First Respondent. The true position is that when the Applicant's Founding papers were served on the Second Respondent, it was faced with an election. It could very well elect to oppose the relief sought, elect to apply to join the Applicant in seeking the relief or elect not to take sides in the dispute between the Applicant and the First Respondent. The latter election is made either by delivering a notice to abide or doing nothing within the five-day period. It is true that it elected to abide and that it delivered a notice to that effect. Mr Breitenbach contended that having done so under the doctrine of election, the Second Respondent cannot also deliver an Affidavit supporting the relief sought by the Applicant. He referred me to Hlatshwayo v Mare and Deas 1912 AD 242 at 256 and 258-9 as well as Standard Bank v Estate Van Rhyn 1925 AD 266 at 268. In these two cases I have been referred to by Mr Breitenbach a litigant had by his conduct acquiesced in a judgment and had thereby lost the right to appeal against it. Mr Breitenbach contended that in his view the Second Respondent cannot approbate and reprobate. In Mr Breitenbach's submissions the Second Respondent's Affidavit not only attacks the decision which the Applicant has impugned in the main application, it also contains wide-ranging attacks on the conduct of the First Respondent and his Department generally.

[6] According to Mr Breitenbach the attacks are intended to show that the First Respondent's decision is not an isolated incident but part of an alleged pattern of interference in municipal planning matters under the guise of environmental decision-making. In Mr Breitenbach's submission the Second Respondent's dispute with the First Respondent is an 'intergovernmental dispute' and the Second Respondent must utilise (and not circumvent) the provisions of Chapter 4 of the Intergovernmental Relations Framework Act 13 of 2005 (TRFA'). Section 42 of the IRFA deals with the consequences of declaring formal intergovernmental disputes whilst section 43 thereof sets out the role played by a facilitator.

Section 44 of the same Act is entitled "Assistance by Minister or MEC for Local Government". I do not deem it necessary to quote these provisions for purposes of this judgment. Notably there exists a prohibition in section 45 (1) of IRFA and it reads: 'Wo government or organ of state may institute judicial proceedings in order to settle an intergovernmental dispute unless the dispute has been declared a formal intergovernmental dispute in terms of section 41 of IRFA and making all efforts to settle the dispute in terms of Chapter 4 of IRFA ".

[7] I agree that a Court is entitled to protect itself and others against the abuse of its process. Indeed in Price Waterhouse Coopers Inc. v National Potato Co-op Ltd 2004 (6) SA 66 (SCA) the Appeal Court states at para 50 the following inter alia:

"[50] but not all-embracing definition of

'abuse of process' has been formulated. Frivolous or vexatious litigation has been held to be an abuse of process (per Innes CJ in Western Assurance v Caldwell's Trustee (supra) at 271 and in Corderoy v Union Government (Minister of Finance) (supra) at 517) and it has been said that 'an attempt made to use for ulterior purposes machinery devised for the better administration of justice' would constitute an abuse of the process (Hudson v Hudson and Another) (supra at 268). In general, legal process is used properly when it is invoked for the vindication of rights or the enforcement ofjust claims and it is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. The mere application of a particular court procedure for a purpose other than that for which it was primarily intended is typical, but not complete proof of mala fides. In order to prove mala fides a further inference that an improper result was intended is required. Such an application of a court procedure (for purposes other than that for which it was primarily intended) is therefore a characteristic, rather than a definition, of mala fides. Purpose or motive, even a mischievous or malicious motive, is not in general a criterion for unlawfulness or invalidity. An improper motive may, however, be a factor where the abuse of court process is in issue. (Brummer v Gorfil Brothers Investments (Pty) Ltd en Andere (supra) at 412I-J; 414I-J and 416B). Accordingly, a plaintiff who has a bona fide claim but intends to use litigation to cause the defendant financial (or other) prejudice will be abusing the process (See Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) (1999 (2) BCLR 125) in para [13]). " Concluding his submission Mr Breitenbach insisted that the Second Respondent's Affidavit should be struck out by this Court in the exercise of its inherent jurisdiction to prevent abuses of its process. As to costs Mr Breitenbach contended as follows:

"The costs of this application to strike out must be paid by the Second Respondent and, because it has opposed, by the Applicant jointly and severally with the Second Respondent. The employment of two counsel was warranted and consequently such costs must include the costs of two counsel."

[8] Essentially the First Respondent's case is based upon the contention that the filing of the Second Respondent's Affidavit constitutes an abuse of the process of the Court and that it falls to be struck out in its entirety on this ground. The difficulty seems to be that the First Respondent makes no attempt to demonstrate prejudice consequent upon the filing by the Second Respondent of the Affidavit complained of and thus its abuse of the Court process. It must of necessity be mentioned that whilst Mr Breitenbach relied on the provisions of Rule 6 (15) in this application, this Rule is not and does not purport to be exhaustive of the grounds for striking out. One must for an example refer to Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368 G where the following formulation appears:

"Mr Van der Spuy's submission is that this sub-rule was meant to be exhaustive and that no striking out application which is brought on any ground other than those mentioned, can succeed. He submits that the word "may" was not intended to empower the Court to entertain a striking out application on other grounds; the intention was merely to give the Courts a discretion and not to make it obligatory to strike out matter which is scandalous, vexatious or irrelevant. I agree with Mr Van der Spuy that the use of the word "may " merely indicates that the Court has a discretion but, in spite thereof, the sub-rule was, in my view, not intended to be exhaustive. The Court still has an inherent jurisdiction to grant relief where the Rules of Court make no provision therefor. CF Neal v Neal, 1959 (I) SA 828 (A)." (underlining is my own) Another formulation of importance is that of Supreme Court of Appeal in Beinash v Wixley [1997] ZASCA 32 ; 1997 (3) SA 721 (SCA) at 733B: "What is clear from the Rule is that two requirements must be satisfied before an application to strike out matter from any affidavit can succeed. First, the matter sought to be struck out must indeed be scandalous, vexatious or irrelevant. In the second place the Court must be satisfied that if such matter was not struck out the parties seeking such relief would be prejudiced. " As correctly set out by the Supreme Court of Appeal irrespective of the grounds

upon which the striking out application is based, the fact of the matter is indeed that Rule 6 (15) requires the Court to be satisfied that if the matter in question is not struck out the party seeking the relief will be prejudiced. The premise upon which the First Respondent contends that the Second Respondent's Affidavit constitutes an abuse of process of the Court is because it 'takes sides' in the dispute between the Applicant and the First Respondent and that this is impermissible given that the Second Respondent has filed a notice of intention to abide. I find no explanation in the First Respondent's papers what process is being abused and why what has been done amounting to an abuse. There is, however, an assertion that the Second Respondent abuses Court process.

[9] As mentioned earlier on in this judgment, the Second Respondent was cited as an interested party. This was nothing but a joinder. The First Respondent did not place in issue this joinder. I fully understand Mr Breitenbach's concerns that the Second Respondent had already filed a notice to abide. I agree also that it is totally unusual for a party that has filed such notice to even bother to file an Affidavit at all. But there is an argument to be made that as a party to the proceedings, the Second Respondent was entitled (if he wanted to or so minded) to file an Affidavit setting out its position in the application as Mr Rosenberg contended. Importantly, it is true that if the Second Respondent opposed, it would have been appropriate to file a notice of opposition, in which event the Applicant would have been entitled to claim the costs of opposition jointly and severally against both the Respondents in the event of it being successful. Indeed in that event it could hardly be contended that (all other things being equal) opposition constituted an abuse of process. The Second Respondent could very well have filed an Affidavit which can be described as broadly supportive of the application or even supportive of the case presented by the First Respondent. I am inclined to agree with Mr Rosenberg that the Second Respondent in its capacity as a Respondent which does not itself seek any relief and is also not opposing the relief claimed was reasonably entitled to record either by separate notice or in the Affidavit itself an intention to abide.

[10] Assuming acceptance by the First Respondent that a party to proceedings (in the position of the Second Respondent) may file an Affidavit in support of the relief claimed by an applicant and recording an intention to abide any decision of the Court, it is not apparent why it is an abuse of the process of the Court to file a prior notice to abide, rather than together with or after the filing of the Affidavit. No reason presents itself. The First Respondent's position in this regard appears to be not so much that the filing of an Affidavit is impermissible but that the Second Respondent is precluded from taking a position on the application. If the Applicant's attack is to receive any form of support, the Affidavit had to be filed prior to any notice of intention to abide. Turning to abuse of process of Court is important. I have already partly dealt with this by reference to authorities. When vexatious or frivolous litigation is instituted, the Court, acting in the exercise of its inherent powers, may, depending on the circumstances, summarily dismiss the action, order a stay of proceedings, interdict threatened proceedings or strike out a plea if it appears from the plea that the process of the Court is being abused. See Herbstein and Van Winsen supra at 1110; Odendaal v De Jager 1961 (4) SA 307 (O) at 312.

[11] In truth the essence of abuse of process is where, as said in Hudson v Hudson and Another 1927 AD, machinery devised for the better administration of justice is not sought to be used for its proper purpose at all, but solely for ulterior or improper purposes. In such an event, the Court is duty bound to prevent the abuse. I do not find any abuse of the court process as having been perpetrated in the instant matter. At the risk of being guilty of repeating, the Second Respondent was entitled to set out its position on the application. If supportive of the application, the Second Respondent was entitled to set out why this was so and to abide by the Court's decision. I am in agreement with the contention advanced by Mr Rosenberg that the mere fact that the notice of intention to abide was filed in advance of the Affidavit does not alter the position in any way. I have already mentioned that I do find it unusual. But it hardly is an indication of any improper or ulterior motive in the sequencing of what was done and there can hardly be any suggestion of any abuse of process.

[12] Whilst I understand Mr Breitenbach's submission fully that the Second Respondent's dispute with the First Respondent is an 'intergovernmental dispute' and that as such the Second Respondent must utilise and not circumvent the provisions of the Intergovernmental Relations Framework Act, I am not persuaded that what the Second Respondent says in the Affidavit which forms the subject matter of this judgment necessarily amounts to a dispute of that nature. Rule 30 of the Uniform Rules of Court inter alia provides:

"30 (1) A party to a cause in which an irregular step has been taken by other party may apply to the Court to set it aside....................

(3) If at the hearing of such application the Court is of the opinion that the proceeding or step is irregular or improper, it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as it seems meet.

The above Rule and particularly the portion quoted represents what probably could have been an election made by the First Respondent in the instant matter. It suffices, however, for present purposes that this Court is not faced with an application in terms of the above quoted Rule 30 of the Uniform Rules of Court. The First Respondent is not at all left without a remedy. When he launched this application, he clearly and wisely provided himself with an alternative remedy in the event that this Court is not quite with him in the proposed striking out of the Second Respondent's Affidavit in its entirety. I am referring to prayer 3 of the Notice of Motion, namely an order allowing the First Respondent to deliver a Supplementary Answering Affidavit dealing with the Second Respondent's Affidavit. The dictates of justice allow that the latter order should be made.

ORDER;

[13] In the circumstances the following order is made:

(a) The application that the Second Respondent's Affidavit deposed to by Mr Ludolph Gericke dated 17 June 2011 and filed on 20 June 2011 be struck out is hereby dismissed with costs.

(b) It is ordered that the First Respondent is allowed to deliver a Supplementary Answering Affidavit in which he shall deal with the Second Respondent's Affidavit.

DLODLO J