Sibande v Director General Department of Mineral Resources and Others (9073/16) [2016] ZAGPPHC 681 (8 August 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG, PRETORIA

CASE NO: 9073/16

8/8/2016

Reportable: No

Of interest to other judges: No

Revised.

In the matter between:

HLABATHI SAMSON SIBANDE Applicant

And

DIRECTOR GENERAL:

DEPARTMENT OF MINERAL RESOURCES 1st Respondent

DEPUTY DIRECTOR GENERAL:

MINERAL REGULATION 2nd Respondent

REGIONAL MANAGER: MPUMALANGA

DEPARTMENT OF MINERAL RESOURCES 3rd Respondent

MINISTER OF MINERAL RESOURCES 4th Respondent

COUSINS COAL CO (PTY) LTD 5th Respondent

JUDGMENT

KHUMALO J

2

INTRODUCTION

[1] This is an application for judicial review in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) of decisions relating to the grant of a prospecting right to the 5th Respondent, Cousins Coal (Pty) Ltd to prospect coal on the Applicants property. The matter came before me on 29 June 2016, unopposed. Due to the fact that the matter constitutes of voluminous documentation, 5 bundles amounting to +500 pages, I stood it down until 1 July 2016 for proper consideration. By the 1 July 2016 I had not finalised the matter and had to extend the period until further notice to the Applicant.

[2] On the previous occasion when the matter was set down and heard by Molopa J, she was not inclined to hear the matter until proper

service has been effected on the 5111 Respondent. On the face of the new return of service for the notice of set down on 29 June 2016, it seems service was effected at an address in Polokwane namely, 49 Landres Mare being allegedly the registered address of the 5th Respondent by affixing on the principal door. The sheriff's stated reason for such service is that the premises remain locked and nobody was present on the premises. During the motion hearing I was implored to accept the service as proper service due to the fact that the address is, according to a windeed report ("Company search report") procured from the CIPRO site dated 2 May 2016 (CKR1), the registered office of the company. An affidavit substantiating that fact and other endeavours by the Applicant to bring the institution of legal proceedings to the attention of the 5th Respondent was also filed.

[3] During perusal of the documentation I noticed that there is a Company search report marked as Annexure “CKR 8" starting on page 540 to 544. On page 540 it indicates that the company's registered address was changed on 2 July 1998 from the abovementioned address in Landres Mare, Polokwane to 4th Floor Oliesade Building, 526 Vermeulen Street, Arcadia. A further change of the registered address took place on 28 May 2009, to 1 Konstabel Street, Groblersdal. The new registered address change as on 28 May 2009 was noted again on 10 April 2013. The recorded activities on the report end on 18 November 2015 with the address remaining 1 Konstabel Street, Groblersdal.

[4] Proper service should therefore have been effected at 1 Konstabel Street, Groblersdal.

[5] The 5th Respondent has a direct and substantial interest in the matter. It is a cornerstone of our legal system that a person is entitled to notice of legal proceedings against such person, or if he is to be adversely affected by the order or decision to be taken by the court in such proceedings. See Steinberg v Cosmopolitan National Bank of Chicago 1973 93) SA 885 (RA) 892C. If proceedings have started without due notice to the Defendant, the subsequent proceedings are null and void, and any judgment would be of no force and effect against such a person and may be disregarded without the necessity of a formal order setting it aside. In an action mere knowledge of issue of a summons does not constitute service and cannot relieve a Plaintiff from the obligation to follow the prescribed rules; see First National Bank of S A Ltd v Ganyesa Bottle Store 1998 (4) SA 565 N at 568 B-C.

[6] The Applicant is ordered to effect proper service upon the 5th Respondent at its registered address as updated on the Company search report or at a place proven to be its principal place of business.

___________________________

N V KHUMALO

JUDGE OF THE HIGH COURT OF SOUTH

AFRICA

GAUTENG DIVISION, PRETORIA

FOR THE APPLICANT : ADV S COWEN

PRETORIUS

INSTRUCTED BY

: A WOLMARANS INC

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