Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and Exploitation SOC Ltd and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2020 (4) SA 409 (CC)

Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exploration and Exploitation SOC Ltd and Another
2020 (4) SA 409 (CC)

2020 (4) SA 409

Citation	2020 (4) SA 409 (CC)
Case No	CCT 195/19; [2020] ZACC 5
Court	Constitutional Court
Judge	Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Heard	March 24, 2020
Judgment	March 24, 2020
Counsel	AJ Dickson SC (with MG Roberts SC and E Roberts) for the applicant.; AR Bhana SC (with I Goodman) for the respondents.

Flynote : Sleutelwoorde

Constitutional practice — Appeal — Leave to appeal — Mootness — Whether, despite issues having become moot since applying for leave to appeal, in interests of justice to grant leave — Factors to be considered restated — Conflicting judgments by different courts, where appeal court's outcome having binding implications for future matters — In casu, decision sought to be appealed against not having binding effect — Application for leave to appeal dismissed.

Constitutional practice — Costs — Punitive costs order — Against applicant for leave to appeal — Where, knowing that issues had become moot since application made, applicant persisting with application in hope of reaching favourable settlement offer as to costs of previous litigation — Such conduct amounting to abuse of process warranting punitive costs order.

Headnote : Kopnota

Normandien Farms (Pty) Ltd (Normandien) was the owner of a number of farms in respect of which the first respondent, the SA Agency for Promotion of Petroleum Exploration and Exploitation (PASA), accepted an application for exploration rights under s 79 of the Mineral and Petroleum Resources

2020 (4) SA p410

Development Act 28 of 2002 (the MPRDA), made by the second respondent, Rhino Oil and Gas Exploration South Africa (Pty) Ltd (Rhino). Normandien took issue with a number of formal defects in PASA's acceptance and publication of the application and was successful in its High Court application to have it set aside. The Supreme Court of Appeal, however, reversed that decision. Here Normandien applied for leave to appeal in the Constitutional Court.

After the application for leave to appeal was filed, Rhino formally withdrew its application for exploration rights over the Normandien farms. They then attempted to settle the dispute, Normandien agreeing that the underlying causa for the referral to the CC had in principle become moot but insisting that Rhino offer to pay the costs of the High Court and SCA proceedings as a precondition to its withdrawing the matter (as contemplated in the Constitutional Court Rules).

In the CC, Normandien argued that it was in the interest of justice to allow leave to appeal even if the application was moot, because the judgment of the Supreme Court of Appeal was incorrect and constituted binding precedent which would prejudice future litigants. Normandien also raised the issue of the costs order against it, contending that it was imperative that PASA conduct itself correctly in future matters and that the general public ought to know their rights. Rhino, in turn, asked for costs on an attorney and client scale, submitting that Normandien acted improperly by refusing to withdraw the matter if the costs order by the Supreme Court of Appeal were not reversed.

Held

It was clear from the factual circumstances that this matter was moot — once the application was withdrawn there was nothing to set aside or interdict. Where there were two conflicting judgments by different courts, especially where an appeal court's outcome had binding implications for future matters, it weighed in favour of entertaining a moot matter. Here the SCA did not decide Normandien's review application on the merits nor did it pronounce on the legality of the process; it dismissed the matter on preliminary issues such as ripeness and lack of prejudice. The complaint about the alleged non-compliance with the procedural requirements was not decided by the SCA. Rhino would have to bring a new application should it wish to apply for an exploration right in the future and comply with the provisions of the MPRDA. It could not rely on the Supreme Court of Appeal's judgment to bypass the procedures that were set out in s 10 of the MPRDA. Neither were any of the other various factors present which courts have proffered for consideration on the question of whether it was in the interest of justice to hear a moot matter. Accordingly, the application for leave to appeal would be dismissed. (See [46] – [56] and [58].)

For the purposes of appealing to this court on the question of costs alone, the test was, again, whether the interests of justice permitted this. The facts of this case did not warrant this court's interference in the costs order issued by the Supreme Court of Appeal and the High Court. It was highly inappropriate for Normandien to leave litigation pending before this court with the knowledge that the case was moot on the facts. It was clear that Normandien's actions were merely a disguised attempt to recover costs. It knew that Rhino could not unilaterally withdraw this application before this court, and used this to its advantage in the hope that this would compel Rhino to

2020 (4) SA p411

pay its costs. Normandien's dilatory conduct forced Rhino to pursue the litigation before this court, even though Normandien recognised that the case was moot. Its conduct was reprehensible and an abuse of process which warranted a punitive costs order. (Paragraphs [57] and [69] – [72].)

Cases cited

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another2007 (1) SA 343 (CC) (2006 (11) BCLR 1255; [2006] ZACC 9): referred to

Agri SA v Minister for Minerals and Energy2013 (4) SA 1 (CC) (2013 (7) BCLR 727; [2013] ZACC 9): dictum in para [1] applied

Alexkor Ltd and Another v The Richtersveld Community and Others2004 (5) SA 460 (CC) (2003 (12) BCLR 1301; [2003] ZACC 18): dictum in para [23] applied

Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): dictum in para [3] applied

Biowatch Trust v Registrar, Genetic Resources, and Others2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Buffalo City Municipality v Gauss and Another2005 (4) SA 498 (SCA) ([2006] 2 All SA 11; [2004] ZASCA 148): referred to

Democratic Alliance v Ethekwini Municipality2012 (2) SA 151 (SCA) ([2011] ZASCA 221): referred to

General Council of the Bar of South Africa v Jiba 2019 (8) BCLR 919 (CC) ([2019] ZACC 23): dictum in para [35] applied

Independent Electoral Commission v Langeberg Municipality2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): referred to

JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others1997 (3) SA 514 (CC) (1996 (12) BCLR 1599; [1996] ZACC 23): dictum in para [15] applied

Jockey Club of South Africa v Feldman1942 AD 340: dictum at 359 applied

MEC for Education, KwaZulu-Natal, and Others v Pillay2008 (1) SA 474 (CC) (2008 (2) BCLR 99; [2007] ZACC 21): dictum in para [32] applied

Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another2014 (2) SA 603 (CC) (2014 (2) BCLR 212; [2013] ZACC 45): dictum in para [37] applied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dictum in para [21] applied

National Education Health and Allied Workers Union v University of Cape Town and Others2003 (3) SA 1 (CC) ((2003) 24 ILJ 95; 2003 (2) BCLR 154; [2002] ZACC 27): dictum in para [14] applied

Nel v Davis SC NO[2016] JDR 1339 (GP): dictum in para [25] applied

Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum and Exploitation SOC 2017 JDR 831 (WCC): considered

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd2015 (3) SA 479 (CC) (2015 (5) BCLR 509; [2015] ZACC 5): dictum in para [18] applied

Plastic Converters Association of South Africa on behalf of Members v National Union of Metalworkers of SA (2016) 37 ILJ 2815 (LAC) ([2016] ZALAC 39): dictum in para [46] applied

2020 (4) SA p412

POPCRU v SACOSWU and Others2019 (1) SA 73 (CC) (2018 (11) BCLR 1411; [2018] ZACC 24): dictum in para [44] applied

President of the Republic of South Africa v Democratic Alliance and Others2020 (1) SA 428 (CC) (2019 (11) BCLR 1403; [2019] ZACC 35): dictum in para [17] applied

Public Protector v South African Reserve Bank2019 (6) SA 253 (CC) (2019 (9) BCLR 1113; [2019] ZACC 29): referred to

Rajah & Rajah (Pty) Ltd and Others v Ventersdorp Municipality and Others1961 (4) SA 402 (A): referred to

Rhino Oil and Gas Exploration South Africa (Pty) Ltd v Normandien Farms (Pty) Ltd and Another2019 (6) SA 400 (SCA) ([2019] ZASCA 88): approved

Ruta v Minister of Home Affairs2019 (2) SA 329 (CC) (2019 (3) BCLR 383; [2018] ZACC 52): referred to

Sebola and Another v Standard Bank of South Africa Ltd and Another2012 (5) SA 142 (CC) (2012 (8) BCLR 785; [2012] ZACC 11): dictum in para [34] applied

South African Reserve Bank and Another v Shuttleworth and Another2015 (5) SA 146 (CC) (2015 (8) BCLR 959; [2015] ZACC 17): referred to

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae)2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24): referred to.

Case Information

AJ Dickson SC (with MG Roberts SC and E Roberts) for the applicant.

AR Bhana SC (with I Goodman) for the respondents.

An appeal from the Supreme Court of Appeal (hearing an appeal from the High Court of South Africa, Western Cape Division, Cape Town).

Order

1.

Leave to appeal is dismissed.

2.

The applicant must pay the costs of the application, including costs of two counsel, on an attorney and client scale.

Judgmen...