Jenkins v Government of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Judge: Dukada AJ
• Judgment Date: 18 January 1996
• Citation: 1996 (3) SA 1083 (TkS)
• Docket Number: 1343/95
• Hearing Date: 14 December 1995
• Counsel: N B Locke for the applicant. S M Mbenenge for the respondents.
• Court: Transkei Supreme Court

Dukada AJ:

On 2 January 1989 the applicant was employed by the Transkei Mining I Corporation (hereinafter referred to as 'the Corporation') as a geologist. It is common cause that her conditions of service at the Corporation included use of an official vehicle allocated to her for official and private trips. She was also entitled to a free unfurnished house which was leased by the Corporation on her behalf.

The applicant enjoyed the use of the official vehicle until 8 June 1995, when it was seized J from her by an official of the Ministry of Economic

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A Affairs and Tourism in the Province of Eastern Cape. On 6 July 1995 the acting regional head of the Ministry of Economic Affairs in Umtata advised the applicant that the Permanent Secretary of the Ministry of Economic Affairs at Bisho had cancelled the lease agreement entered into between the Corporation and Ikhwezi Lokuza in respect of a B house occupied by the applicant in terms of her conditions of service with the Corporation. On 20 July 1995 the applicant obtained a rule nisi, coupled with an interim order, calling upon the respondents to show cause why they should not be ordered and directed to return the vehicle and restore the occupation of the house to the applicant forthwith. In response to the application, the respondents launched a counter-application C for an order directing the applicant to return the vehicle in question to the acting head of the Ministry of Economic Affairs and Tourism at Umtata. Alternatively, the respondents pray for an order that the use of the vehicle by the applicant should be subject to the terms and conditions stipulated by the Government and an appropriate official XG D registration number as well as log-book should be issued for the vehicle.

The applicant's cause of action is that the Corporation has not been liquidated in terms of the law and the vehicle in question still belongs to the Corporation, not the Government. The applicant further contends that the contract of employment entered into between the Corporation and the applicant still subsists and the respondents are bound to honour the E terms thereof. She also alleges that at the end of 1993 and beginning of 1994 a certain L Mbana (who was the Director-General of the Department of Commerce) and Titus (the then Minister of Commerce) made assurances and undertakings to the employees of the Corporation, including the applicant, that the employees would not forfeit their benefits should the Corporation be closed and the employees became absorbed by the F Government.

Mr Locke, counsel for the applicant, argued that there is no dispute of facts and the matter should be decided on the papers. Should the Court find that there is such a dispute which cannot be resolved without oral evidence, it should exercise its discretion in terms G of Rule 6(5)(g) and order that oral evidence be led by the parties to resolve the dispute. For this submission, Mr Locke relied on the following authorities, viz Administrator, Transvaal, and Others v Theletsane and Others 1991 (2) SA 192 (A); Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A); Abaany Property Investments Ltd v Fatima Ayob & Sons Ltd 1994 (2) SA 342 (T); and Bocimar NV v Kotor H Overseas Shipping Ltd 1994 (2) SA 563 (A).

No argument was proffered by counsel for respondents regarding this submission by Mr Locke. I agree entirely with submissions by Mr Locke. In Administrator, Transvaal and I Others v Theletsane and Others (supra), Botha JA held as follows:

'In Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 981D-E Corbett JA, after referring to a number of cases in which it was held that an application to refer a matter to evidence should be made at the outset and not after argument on the merits, observed that that was no doubt a salutary general rule, but that he did not regard it as an inflexible one. The recent tendency of the Courts seems to J be to allow counsel for an applicant, as a general rule, to present his case on

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the footing that the applicant is entitled to relief on the papers, but to apply in the alternative for the matter to be referred to evidence if the main argument should fail: A see Marques v Trust Bank of Africa Ltd & Another 1988 (2) SA 526 (W) at 530E-531I and Fax Directories (Pty) Ltd v SA Fax Listings CC 1990 (2) SA 164 (D) at 167B-J. It seems to me that such an approach has much to commend itself, for the reasons stated in the last-mentioned two cases, but for B the purposes of the present case there is no need to pursue the point.'

(At 200B-E.)

It is necessary to first deal with the preliminary point raised by the respondents before plunging into the merits of the matter. Mr Mbenenge, counsel for the respondents, argued C that the respondents have been joined in these proceedings incorrectly because the matter falls under the exclusive jurisdiction of the Member of the Executive Council for Economic Affairs and Tourism in the Province of the Eastern Cape. The decision to deprive the applicant of the vehicle and the house in question was taken 'at Provincial Government level', not by the respondents.

D In determining whether there is misjoinder in these proceedings, the test is whether or not a party has a 'direct and substantial interest' in the subject-matter of the action, that is, a legal interest in the subject-matter of litigation which may be affected prejudicially by the judgment of the Court. (See Ex parte Sudurhavid (Pty) Ltd: In re Namibia Marine E Resources (Pty) Ltd v Ferina (Pty) Ltd 1993 (2) SA 737 (Nm) at 741I-742D and Nonkenge v Gwiji and Others 1993 (4) SA 393 (Tk) at 395C-H; see also Mphele v Government of the Republic of South Africa (case No 151/95 Ck, unreported) at pp 4-8 and Erasmus Supreme Court Practice at B94-B95 and the numerous authorities cited therein.)

F It is common cause that, when the Corporation was closed down, its assets, including the vehicle in question, were taken over by the Department of Commerce of the then Republic of Transkei. This Department is now defunct and falls under the Member of the Executive Council for Economic Affairs and Tourism in the Province of the Eastern Cape. G In terms of the Constitution of the Republic of South Africa Act 200 of 1993, a provincial government has no competence to deal with matters pertaining to mining (see s 126(1)). The Corporation was established under the Corporations Act 10 of 1985 (Tk). Section 13 of the Act provides that a corporation shall not be liquidated except by or under authority of an Act of the National Assembly. Although the respondents state H repeatedly that the Corporation was dissolved, they do not dispute that it has not yet been liquidated as provided in s 13 of Act 10 of 1985. Therefore, the Corporation is de jure still in existence though de facto it is no longer operating.

There is no evidence that the national Ministry of Energy and Mineral Affairs has since taken over the affairs of the Corporation. What has in fact emerged from the evidence is I that the assets of the Corporation are still under the control of the Member of the Executive Council for Economic Affairs and Tourism in the Province of the Eastern Cape. The evidence also reveals that the applicant is temporarily in the Ministry of Economic Affairs and Tourism and arrangements are being made for her to be transferred to the national Department of Mineral and Energy Affairs. In view of the fact that the Member of J the Executive Council for

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A Economic Affairs and Tourism in the Province of the Eastern Cape has no competence to deal with mining matters, I am of the view that the national Government has a direct and substantial interest in the affairs of the Corporation. At the time the applicant instituted these proceedings, she was completely ignorant about the exact Ministry in charge of the B Corporation. In my view, she cannot be blamed for suing the...