Special Investigating Unit v Van Kampen and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mngadi J
• Judgment Date: 03 May 2023
• Citation: 2023 JDR 1643 (KZP)
• Hearing Date: 25 April 2023
• Docket Number: 5790/2020P
• Court: KwaZulu-Natal Division, Pietermaritzburg

Mngadi J:

[1]

The applicant seeks leave to intervene as a party in an action pending before the court. The plaintiff in the action opposes the application. The defendant in the action has not taken any part in the application proceedings. The parties for convenience referred to as in the main action.

[2]

The applicant is the Special Investigating Unit (SIU) established in terms of the Special Investigating Units and Special Tribunals Act No. 74 of 1996 (the Act) as amended by promulgation of Proclamation R118 of 2001 in the Government Gazette No. 22531 dated 31 July 2001. The plaintiff is Anton Van Kampen an adult businessperson. The defendant is the Minister of Public Works, a National Minister of the Department of Public Works a state department of the Republic of South Africa.

[3]

The plaintiff on 4 September 2020 instituted an action against the defendant claiming arrear rental of certain premises. He set out four claims in terms of four written lease agreements concluded with the defendant on 17 December 2015 (claim 1 for R434 701.27), on 24 March 2016 (claim 2 for R2 059 143.79), on 24 March 2016 (claim 3 for R3 499 1780.90) and on 24 October 2013 (claim 4 for R2 761 415.22).

2023 JDR 1643 p4

Mngadi J

[4]

The defendant in response filed a plea and a counter-claim. The defendant, apart from raising a special defence, admitted the lease agreements but stated that they were renewals/extensions of the then existing lease agreements. It claimed the SIU investigated and found in respect of the then existing lease agreements that the plaintiff provided less useable space then the useable space stipulated in the lease agreements which resulted in an over-change and overpayments (in rands) of R482 845, R3 401 156, R11 889 552, and R272 376. In addition, defendant claimed an overcharge for the period 1 September 2013 to 31 August 2015 in the total amount of R272 376.

[5]

The plaintiff in his plea to the counter-claim pleaded, inter alia, prescription and that in August 2013 the plaintiff and defendant settled the dispute of issues relating to existing lease agreements. Plaintiff, in addition, denied that it provided less space than the space stipulated in the lease agreements.

[6]

The pleadings in the action have closed and discovery completed. The action is set down for hearing on August 2023.

[7]

On 1 March 2023, the applicant filed the application for leave to intervene. It stated that on 27 August 2014 by Proclamation R59 of 2014 the President authorized it to investigate certain allegations relating to the procurement and administration of leases by the defendant. It investigated the lease agreements between plaintiff and defendant. It found that the plaintiff provided less floor space than that stipulated in the lease agreements but he charged for and the defendant paid for the full floor space.

2023 JDR 1643 p5

Mngadi J

It resulted in the loss to the defendant in that it paid for a floor space it could not and it did not use.

[8]

The applicant stated that by virtue of its statutory mandate it has a direct real and substantial interest in the pending proceedings between the plaintiff and the defendant that entitles it to apply for admission as co-litigant in the pending litigation.

[9]

The plaintiff in the answering affidavit stated the following; the applicant lacked locus standi, it does not have a right which will be adversely affected by the relief the plaintiff seeks in the action, and the applicant has not made out a case for intervention and any right which the applicant may have has prescribed.

[10]

Rule 12 provides 'Any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or defendant. The court may upon such application make such order, including any order as to costs, and give such directions as to further procedure in the action as to it may deem meet.'

[11]

The test for intervention is direct and substantial interest in the subject matter of the proceedings and whether wider consideration of convenience favour intervention, and the determination of the intervening party's matter or dispute must depend upon substantially the same question of law or fact as arises in the proceedings in which leave is sought to intervene. Herbstein & Van...