Minister of Water Affairs and Forestry and Others v Swissborough Diamond Mines (Pty) Ltd and Others

• Judge: Joffe J
• Judgment Date: 12 December 1997
• Citation: 1999 (2) SA 345 (T)
• Docket Number: 19968/97
• Hearing Date: 25 November 1997
• Counsel: GL Grobler (with him RJ Raath and EN Keeton) for the applicants C Edeling for the first respondent Anton Katz for the sixth respondent No appearance for the second to fifth and the seventh respondents
• Court: Transvaal Provincial Division

Joffe J:

On 13 August 1997 a subpoena, which appears to have been issued on 12 August 1997 by the Registrar of the High Court of the Kingdom of Lesotho, and endorsed on 13 August 1997 by the seventh respondent in terms of s 7 of the Foreign Courts Evidence Act 80 of 1962 ('the Act'), was served upon each of the four applicants. The F subpoenas are in identical terms, save for the date upon which the respective applicants are to appear in the High Court of Lesotho. The subpoenas were issued, in an application brought by the present first respondent and others, as applicants, against the Commissioner of Mines and Geology NO, the Lesotho Highlands Development G Authority and others, as respondents. In terms of the subpoenas, the present applicants are to give evidence, on behalf of the present first respondent, in regard to all matters within their knowledge relating to the counter-application pending in that Court. In that counter-application the Lesotho Highlands Development Authority seeks an order, inter alia, declaring that a mining lease entered into between the Basotho Nation and the H present first respondent in respect of an area, described as the Rampai area, void ab initio and of no force and effect. Each subpoena requires the respective applicants to produce to the said Court

'(1)

all ''relevant documents'' as defined in the document schedule; and

(2)

all documents as described in the ''documents list'' and the ''document second annexure'' as herein below set I out'.

The applicants launched the present application by way of urgency. In the application they seek the following relief:

(1)

a declaration that the endorsement of the subpoenas by the seventh respondent be declared null and void and of no legal effect; J

Joffe J

(2)

the setting aside of the endorsement of the subpoenas; A

(3)

the setting aside of the returns of service;

(4)

a declaration that the applicants are not obliged, in terms of s 7(3) of the Act, to attend the proceedings of the High Court of Lesotho; and

(5)

in the alternative to the above, an order that the applicants are not obliged in terms of s 7(3) of the Act to B take the documents mentioned in the subpoenas with them and to produce them to the High Court of Lesotho.

At the hearing of the application, applicants' counsel indicated that they would seek the following relief instead of that set out above: C

'1.

It is declared that the provisions of s 7 of the Foreign Courts Evidence Act 80 of 1962:

1.1

do not bind the State, its officials or representatives;

1.2

are not enforceable against officials or representatives of the State for purposes of eliciting evidence relating to any affairs of the State; D

1.3

do not apply to subpoenas insofar as same purport to be formulated duces tecum.

2.

It is declared that s 7 of the said Act is not applicable in respect of subpoenas such as those forming the subject-matter of this application.'

First and sixth respondents' counsel both indicated that, in the event of the applicants being successful in the E application, they did not object to the relief being granted in the form set out above.

In the answering affidavit the point is taken that the second to fifth respondents ought not to have been joined in F the application. It is submitted that it is manifest from the subpoenas that they were issued for the applicants to give evidence on behalf of the present first respondent. Whilst this is correct, the subpoenas were signed on behalf of the 'applicants' attorneys'. The notice of motion makes it clear that costs are sought against the present first respondent and such of the other respondents as may oppose the application jointly and severally with the first G respondent. Notice of opposition was given on behalf of the first to sixth respondents. First respondent's and sixth respondent's counsel indicated that they did not intend taking the point of misjoinder any further. In the event of the applicants being successful in the application, a costs order will be made against the first to the sixth respondents jointly and severally as they all entered appearance to defend the application. H

The first respondent is presently engaged in an action under case No 18374/93 in the High Court (Transvaal Provincial Division) as co-plaintiff with the trustees of the Josias van Zyl Family Trust (second plaintiff) and Josias van Zyl (third plaintiff) against the Government of the Republic of South Africa and others. The first respondent is I furthermore engaged as co-plaintiff with the sixth respondent in an action under case No 8469/94 in the High Court (Transvaal Provincial Division) against the Trans-Caledon Tunnel Authority. In both these actions, applications in terms of Rule 35(7) have been brought to obtain inspection of documents which are alleged to be in the possession of the Government of the Republic of South Africa and the Trans-Caledon J

Joffe J

Tunnel Authority. These applications form the subject of judgments which will be handed down simultaneously A with this judgment. The judgment in the action against the Government of the Republic of South Africa sets out the relevant background in detail. It will not be repeated herein.

The present first respondent and other parties have instituted much litigation in the High Court of the Kingdom of B Lesotho. The litigation commenced in 1991 when an urgent interim interdict was granted by that Court in favour of first respondent and sixth respondent against the Lesotho Highlands Development Authority, from proceeding with the construction of the Lesotho Highlands Water Scheme. The reason for the interim interdict was that a mining C lease had been granted to first respondent, which had been tributed to sixth respondent, and that construction works were taking place within the lease area, which allegedly infringed upon the rights of the first respondent and sixth respondent. Subsequent thereto litigation was instituted...