THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 363/2011

REPORTABLE
In the matter between

FINISHING TOUCH 163 (PTY) LTD

Appellant

and

BHP BILLITON ENERGY COAL SOUTH

First Respondent
AFRICA LIMITED

THE MINISTER OF MINERAL

Second Respondent
RESOURCES OF THE REPUBLIC OF
SOUTH AFRICA

THE DIRECTOR GENERAL OF THE

Third Respondent
DEPARTMENT OF MINERAL RESOURCES

THE DEPUTY DIRECTOR GENERAL OF

Fourth Respondent
THE DEPARTMENT OF MINERAL
RESOURCES

THE REGIONAL MANAGER:

Fifth Respondent
MPUMALANGA REGION, DEPARTMENT
OF MINERAL RESOURCES

Neutral citation:  Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal
South Africa Ltd (363/11) [2012] ZASCA 49 (30 March 2012)

Coram:
MPATI P, MHLANTLA, BOSIELO, MAJIEDT JJA and PLASKET AJA

Heard:
7 March 2012

Delivered:
30 March 2012

Summary:  Practice – Interpretation of court order – when application is initiated –
whether interdict had lapsed.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from:  North Gauteng High Court, Pretoria (Van der Byl AJ
sitting as court of first instance).

The appeal is dismissed with costs including those attendant on the
employment of two counsel.

___________________________________________________________

JUDGMENT
___________________________________________________________

MHLANTLA JA (MPATI P, BOSIELO, MAJIEDT JJA and
PLASKET AJA concurring):

[1] This appeal, which is before us with the leave of the court below,
turns on the interpretation of a court order. The appeal necessitates a
consideration of three orders of the North Gauteng High Court, Pretoria.
In the first, under case no 35324/2005, Preller J had granted an interim
interdict. The second order, under case no 2306/2006, had been granted
by Van der Merwe J pursuant to a review application. The third relates to
an urgent application which was heard by Van der Byl AJ. This appeal is
directed against his order in terms of which certain relief sought by the
appellant, Finishing Touch (Pty) Ltd (Finishing Touch), was dismissed
with costs.

[2] The issues that arose for determination will be best understood
against the background that follows. The genesis of the litigation
concerns a dispute about the true ownership of a mining right. The first
respondent, BHP Billiton Energy Coal SA Ltd (BHP), formerly known as
Ingwe Collieries Limited, was the holder of an unused old order mining
right in respect of certain properties. There was a pending application by
BHP for a prospecting permit in terms of the Minerals Act 50 of 1991
when the Mineral and Petroleum Resources Development Act 28 of 2002
(the Act) came into operation on 1 May 2004.

[3] BHP was, in terms of Item 3 of Schedule II of the Act, deemed to
have applied for a prospecting right and was obliged to apply for the
conversion of the old order mining right into a new order mining right. It
submitted the outstanding information in order for its application for a
prospecting permit to be processed under the Act. On 12 September 2005,
BHP was informed that its application had been refused on the grounds
that the granting thereof would result in an exclusionary act, prevent fair
competition or result in the concentration of the mineral resources in
question under the control of BHP.

[4] On 3 November 2005, BHP instituted interdict proceedings in the
high court where it sought an order preventing the Minister of Mineral
Resources and the relevant officials in her department from granting any
prospecting rights to a third party, pending the finalisation of review
proceedings for the setting aside of the decision to refuse its application
for prospecting rights to be launched by it. On 9 November 2005, the
State Attorney, acting on behalf of the Minister, the Deputy Director-
General (DDG) and the Regional Manager (the State respondents) served

a notice to abide the court's decision. On 10 November 2005, Preller J
granted the interdict against the State respondents.

[5] The order inter alia stated the following:
'2
The interdict set out in 1 above shall serve as a temporary interdict pending the
final determination of review proceedings to be launched by the applicant against the
respondents, seeking the review and setting aside of the decision in terms of section
17 of the Act by the first and/or second respondents to refuse the applicant's
application lodged on 28 October 2004 for a prospecting right for coal in respect of
the properties, on condition that such review proceedings shall be initiated by no later
than Wednesday, 25 January 2006.' (My emphasis.)
For convenience I shall hereafter refer to this order as the Preller J order.

[6] On 25 January 2006, BHP’s attorneys caused the review
application papers to be served by hand upon the State Attorney after
receiving confirmation that they were still acting on behalf of the first,
third and fourth respondents. These documents were served by the sheriff
on the second and third respondents on 26 January 2006. The State
respondents subsequently filed a notice of opposition but did not file any
answering affidavits. This application was heard by Van der Merwe J. On
3 October 2006, the learned judge granted an order reviewing and setting
aside the refusal of BHP's application for prospecting rights and granted it
himself.

[7] Almost four years later, in September 2010, BHP discovered that
two prospecting rights had, on 19 and 22 September 2006 respectively,
been granted to Finishing Touch despite the terms of the Preller J order
expressly interdicting the State respondents from doing so. The
prospecting rights were over properties which overlapped to a great
extent with the properties on which BHP had been granted the

prospecting rights. As a result, BHP launched an internal appeal. It also
sought an undertaking from Finishing Touch not to commence
prospecting activities, nor to apply for mining rights pending the
finalisation of the internal appeal and proceedings to review the decisions
of 19 and 22 September 2006 to grant prospecting rights to Finishing
Touch. Finishing Touch did not furnish such undertakings.

[8] To preserve the status quo, BHP instituted an urgent application in
the court below for an order interdicting Finishing Touch from applying
for mining rights pending the finalisation of the internal appeal and/or
review proceedings.  The State respondents elected not to oppose the
application, but Finishing Touch opposed it on the following grounds:
(a)
that the review proceedings envisaged in the Preller J order were
not initiated on 25 January 2006 as ordered, in that the application papers
were only served on the third and fourth respondents on 26 January 2006.
Furthermore, that the papers were not served on the State respondents in
that they were only served by hand on the State Attorney who had
represented them in a separate matter. Consequently there was no proper
service in terms of the Uniform rule 4(1)(a) and that the interim interdict
had lapsed; and
(b)
that BHP was, in terms of the provisions of s 96(3) of the Act,1 not
entitled to the order granted on 3 October 2006 (the Van der Merwe J
order) as it had not exhausted the internal remedies provided for in that
section.

[9] Finishing Touch furthermore filed a counter-application in terms of
which it inter alia sought an order in the following terms:

1 Section 96(3) of the Act provides:
'No person may apply to the court for the review of an administrative decision contemplated in
subsection (1) until that person has exhausted his or her remedies in terms of that subsection.'

(a)
consolidating the application and an application launched by the
applicant (BHP) against the State respondents under case no 2306/2006
(prayer 2);
(b)
declaring that no prospecting rights were awarded to BHP on 3
October 2006 (prayer 3);
(c)
rescinding and setting aside the Van der Merwe J order granted on
3 October 2006 (prayer 4); and
(d)
declaring that Finishing Touch was the legal holder of the
prospecting rights awarded to it on 19 September 2006 (prayer 5).

[10] The matter came before Van der Byl AJ in the court below. The
question that arose for determination was whether BHP had initiated the
review proceedings by 25 January 2006. Counsel for BHP submitted that
the application had been initiated upon its issue by the office of the
registrar. The primary argument on behalf of Finishing Touch rested on
the proposition that an application could only be initiated when it was
properly served by the sheriff as envisaged in Uniform rule 4.

[11] Van der Byl AJ reasoned that the lodging, filing and the issue of
application documents by the office of the registrar had to be regarded as
the initiation of the proceedings envisaged in the Preller J order. He held
that the service of such process was a further step to get the respondent
involved in the litigation. Van der Byl AJ further held that the interdict
proceedings were incidental to the review proceedings and that BHP's
attorneys were, by virtue of the provisions of Uniform rule 4(1)(aA),
entitled to serve the review proceedings on the State Attorney, who had
been on record in the interdict proceedings and who had, upon enquiry
from BHP's attorneys, confirmed that they were still on record and that

they would accept service on behalf of the State respondents. He
accordingly granted an interim interdict.

[12] Regarding the counter-application, Van der Byl AJ held that BHP
had not exhausted the internal remedies prior to the institution of the
review proceedings and that since Finishing Touch had an interest in the
relief claimed, it ought to have been afforded an opportunity to advance
its defence during the review proceedings. Van der Byl AJ accordingly
rescinded the Van der Merwe J judgment. He dismissed prayers 3 and 5
of the counter-application. It is against the aforesaid findings and
conclusions that Finishing Touch presently appeals, with the leave of the
court below.

[13] As indicated earlier in the judgment, the determination of this
appeal depends on the proper interpretation of the Preller J order. The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court's intention is to be ascertained
primarily from the language of the judgment or order in accordance with
the usual well-known rules relating to the interpretation of documents. As
in the case of a document, the judgment or order and the court's reasons
for giving it must be read as a whole in order to ascertain its intention.
See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298
(A).2

[14] It is necessary to place the Preller J order in proper perspective and
to examine its terms and purpose in order to determine the intention of
the learned judge when he used the word ‘initiate’. In so doing one has to
consider the context in which the order was made. It is not in dispute that

2 Applied in Administrator, Cape v Ntshwaqela 1990 (1) SA 705 (A) at 715F-H.

there were two competing rights that required to be settled without delay,
viz, BHP's entitlement to a prospecting permit on the one hand and
Finishing Touch's prospecting rights granted on 19 and 22 September
2006, on the other.  It was imperative that the dispute be resolved. The
question to be answered therefore is: What did Preller J mean when he
ordered BHP to initiate the review proceedings by 25 January 2006?

[15]  In this court, the finding of the court below was assailed by counsel
on behalf of Finishing Touch on two grounds. First, it was contended that
the Preller J order meant that the review application had to be served on
the State respondents by the sheriff and filed or lodged with the registrar
by 25 January 2006 as both these acts were necessary to initiate the
proceedings. Counsel asserted that service of the application papers
imbued an application with legal effect. Second, counsel submitted that
there was no proper service in terms of the Uniform Rules of Court by the
end of the day on 25 January 2006. In support of this submission counsel
called into aid the following judgments, namely, Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk;3
Mame Enterprises (Pty) Ltd v Publications Control Board4 and Tladi v
Guardian National Insurance Co Ltd.5 Counsel contended that the court
below should have dismissed the application and granted the declaratory
order sought by Finishing Touch.

[16] The submission advanced on behalf of BHP was that the
application had been initiated on 25 January 2006 when it was lodged and
issued by the office of the registrar and that service of the process was

3 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773
(A) at 780.
4 Mame Enterprises (Pty) Ltd v Publications Control Board 1974 (4) SA 271 (W) at 220B.
5 Tladi v Guardian National Insurance Co Ltd 1992 (1) SA 76 (T) at 80B.

merely a second step in the proceedings. Counsel further contended that
there was proper service albeit the application had been served by hand
on the State respondents’ legal representatives. He thus supported the
conclusions of the court a quo.

[17] In my judgment, the argument on behalf of BHP cannot be
sustained. The interpretation favoured by it will give rise to absurd
consequences and could never reflect Preller J's intention. In
Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies
(Edms) Bpk,6 Rumpff JA held:
'Hoewel `n dagvaarding eers deur die griffier uitgereik word voordat dit beteken word
(Reël 17 (1) en (3)), word dit nie in die Reëls vereis dat `n kennisgewing van mosie
deur die griffier uitgereik moet word of by hom ingelewer moet word voordat dit aan
die respondent beteken kan word nie… Die doel van `n dagvaarding en kennisgewing
van mosie is natuurlik om die verweerder of respondent by `n geding te betrek, en wat
hom betref, word hy eers dan betrek wanneer `n betekening van die dagvaarding of
kennisgewing van mosie plaasgevind het.'7

[18] There can be no doubt that Preller J intended that the review should
effectively proceed by 25 January 2006. He could never have intended for
BHP to have an application issued and a case number allocated by the
registrar and thereafter remain supine.

[19] In my view the Preller J order falls squarely within the ambit of the
cases to which we were referred by counsel for Finishing Touch. These
cases were concerned with statutory provisions or regulations which

6 At 780D-F.
7 Although a summons must first be issued by the registrar before it is served (Rule 17(1) and (3)) it is
not required by the Rules that a notice of motion should be issued by the registrar or be handed in to
him before it may be served on the respondent…The object of a summons or notice of motion is of
course to make the defendant or respondent party to the proceedings, and as far as is concerned he only
becomes a party when service of summons or notice of motion takes place. (My translation.)

require that an application had to be made within a specified period. I
shall mention only two of them. In Mame Enterprises v Publications
Control Board,8 Nicholas J held that it was manifest from Uniform rule 69
and from the contents of Form 2(a) that the giving of notice to the
respondent in a case where relief is claimed against him is an essential
first step in an application on notice of motion. In Tladi v Guardian
National Insurance Co Ltd,10 the court had to determine whether an
application had been made within a period of 90 days as contemplated in
s 14(3) of the Motor Vehicle Accidents Act 84 of 1986. Botha J held that
the application could not be considered to have been made if it had
merely been issued but not served.

[20] It follows in my view, that in ordering that the review proceedings
'shall be initiated by no later than Wednesday, 25 January 2006' Preller J
intended that notice of the application be given to the registrar and the
application served on the affected parties by 25 January 2006.
Accordingly the finding of the court below that the filing of the
application papers with the registrar and the issue thereof must be
regarded as the initiating of proceedings cannot be sustained.

[21] But that is not the end of the enquiry. The next issue is whether the
review application was properly served in terms of the Uniform Rules of
Court. Rule 4 sets out the manner in which any process of the court
should be served. Rule 4(1)(a) provides:

8 At 220B.
9 Rule 6 deals with applications and provides:
'(1)  Save where proceedings by way of petition are prescribed by law, every application shall be
brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for
relief.
(2)  When relief is claimed against any person, or where it is necessary or proper to give any person
notice of such application, the notice of motion shall be addressed to both the registrar and such person,
otherwise it shall be addressed to the registrar only.'
10 At 80B.

'(1)(a) Service of any process of the court directed to the sheriff and subject to the
provisions of paragraph (aA) any document initiating application proceedings shall be
effected by the sheriff in one or other of the following manners:
…'
It is to that issue that I now turn.

[22] It is common cause that the review application was not served by
the sheriff on 25 January 2006 on any of the State respondents. It was
only served by hand on the State Attorney representing them. In this
regard BHP relied on the provisions of rule 4(1)(aA) which provide:
'(aA) Where the person to be served with any document initiating application
proceedings is already represented by an attorney of record, such document may be
served upon such attorney by the party initiating such proceedings.'

[23] Counsel for Finishing Touch submitted that the application for an
interdict before Preller J was not linked to the review proceedings and
that there was no basis for the attorneys of BHP to serve the documents
on the State Attorney as they were not attorneys of record for purposes of
service in respect of the review application. He contended that the service
by hand on 25 January 2006 did not constitute proper service in terms of
rule 4 and consequently the interdict had lapsed.

[24] In my view, this argument has no merit. It has to be borne in mind
that the interdict sought and obtained by BHP was meant to ensure that
the prospecting rights for which it had applied were not awarded to
anyone else pending the final determination of the review. The
proceedings relating to the application for an interdict and the review
were thus intimately linked. They related to the same prospecting rights
in issue and the same parties.

[25] It is not in dispute that BHP's attorney, Mr Band, telephoned Mr
Mathebula, of the office of the State Attorney and enquired whether they
were still acting for the State respondents. Mr Mathebula confirmed that
his office still represented the said respondents and that it was authorised
to accept service on behalf of all the respondents of the review
proceedings to be initiated in terms of the Preller J order. This was
confirmed in writing by BHP’s attorneys.

[26] Counsel for Finishing Touch urged us to reject this explanation as
it had been raised for the first time in the replying affidavit.  It is true that
the explanation was proffered by BHP in reply, but the rule that all the
necessary allegations upon which the applicant relies must appear in his
or her founding affidavit is not an absolute one.  The court has a
discretion to allow new matter in a replying affidavit in exceptional
circumstances. A distinction must be drawn between a case in which the
new material is first brought to light by the applicant who knew of it at
the time when his founding affidavit was prepared and one in which facts
alleged in the respondents’ answering affidavit reveal the existence or
possible existence of a further ground for the relief sought by the
applicant. See Shakot Investments (Pty) Ltd v Town Council of the
Borough of Stanger.11

[27] In this matter BHP was justified in dealing with the issue in the
replying affidavit as the question of service was raised in the answering
affidavit as well as in the counter-application on behalf of Finishing
Touch. Before then it could have had no idea that the validity of the
service by hand on the State Attorney would be challenged, especially

11 Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger 1976 (2) SA 701 (D) at
705A-B. See also  Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd 1984 (3) SA 202 (T) at 205E-G.

when the State Attorney had given the assurance that they had been
authorised to accept service on behalf of the State respondents.
Furthermore this aspect was never challenged by the State respondents
during the review proceedings. The State Attorney simply filed a notice
of opposition on their behalf but they elected not to file any answering
papers in the review application. I also cannot comprehend how the State
respondents' waiver of compliance, even if there was any non-compliance
with the rule relating to service, could avail Finishing Touch who could
never have been prejudiced by it.

[28] The arguments advanced on behalf of BHP with regard to service
of the review application are sound. It is evident that the State Attorney's
office was acting as attorneys of record in respect of the whole matter.
The fact that each application had been allocated a different case number
is, in my view, irrelevant. The purpose of all the proceedings was to
determine the identity of the legal holder of the prospecting rights. The
litigation was continuous and one has to have regard to its history over
time. The same parties were involved on broadly the same issues. And, as
I have mentioned, the remedy may have differed from one case to the
next but the subject matter was the same.

[29] In the result the conclusion of Van der Byl AJ with regard to
service of process by hand cannot be faulted. In my view, there was
proper service of the review application by 25 January 2006. This
conclusion is dispositive of the appeal and renders it unnecessary to
consider the relief sought by Finishing Touch.

[30] The appeal is dismissed with costs including those attendant on the
employment of two counsel.

________________

N Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES
For Appellant:
CE Puckrin SC (with him APJ Els and
E Muller)

Instructed by:

Thomas & Swanepoel, Pretoria

Symington & De Kok, Bloemfontein

For First Respondent:
GL Grobler SC (with him JL Gildenhuys)

Instructed by:

Mervyn Taback Inc, Pretoria

McIntyre & Van der Post, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 March 2012

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd
(363/11) [2012] ZASCA 49 (30 March 2012)

Media Statement

Today the Supreme Court of Appeal (SCA) dismissed an appeal by the appellant, Finishing
Touch 163 (Pty) Ltd against a judgment of the North Gauteng High Court, Pretoria (Van der
Byl AJ).

The respondent, BHP Billiton Energy Coal SA Ltd, (BHP) was the holder of an unused old
order mining right in respect of certain properties. BHP had, in terms of the Mineral and
Petroleum Resources Development Act 28 of 2002, applied for a prospecting right and was
obliged to apply for the conversion of the old order mining right into a new order mining right.
In September 2005, BHP was informed that its application had been refused. On 3 November
2005, BHP instituted interdict proceedings in the high court where it sought an order
preventing the Minister of Mineral Resources and the relevant officials in her department from
granting any prospecting rights to a third party, pending the finalisation of review proceedings
to be launched.

On 10 November 2005, Preller J granted an interdict which served as a temporary interdict
pending the final determination of review proceedings to be launched by BHP.  Importantly
the order stated that the interdict was granted on condition that such review proceedings
would be initiated by no later than Wednesday, 25 January 2006 (the Preller J order).

On 25 January 2006, BHP’s attorneys caused the review application papers to be served by
hand upon the State Attorney after receiving confirmation that they were still acting on behalf
of the first, third and fourth respondents. The sheriff served these documents on the second
and third respondents on 26 January 2006. The State respondents subsequently filed a notice
of opposition but did not file any answering affidavits. This application was heard by Van der
Merwe J. On 3 October 2006, the learned judge granted an order reviewing and setting aside
the refusal of BHP's prospecting rights and granted it himself. BHP subsequently discovered
that two prospecting rights had been granted to Finishing Touch despite the terms of the

Preller J order. These prospecting rights were over properties which overlapped to a great
extent with the properties on which BHP had been granted the prospecting rights.

This caused BHP to institute an urgent application in the court below for an interim interdict to
preserve the status quo pending the finalisation of the internal appeal and/or review
proceedings. Finishing Touch opposed the application on the grounds that the review
proceedings envisaged in the Preller J order were not initiated on 25 January 2006 as
ordered, in that the application papers were only served by the sheriff on the third and fourth
respondents on 26 January 2006. Van der Byl AJ concluded that the lodging, filing and the
issue of application papers by the office of the registrar had to be regarded as the initiation of
the proceedings envisaged in the Preller J order. He held that the service of such process
was a further step to get the respondent involved in the litigation. Van der Byl AJ further held
that the interdict proceedings were incidental to the review proceedings and that BHP's
attorneys were entitled to serve the review application papers on the State Attorney who had
been on record in the interdict proceedings and who had confirmed that they were still on
record and agreed to accept service on behalf of the State respondents. He accordingly
granted an interim interdict.

The SCA had to interpret the terms of the Preller J order particularly what was meant with the
term 'initiated'. It endorsed a statement in one of its earlier judgments that although a
summons must first be issued by the registrar before it is served, it is not required by the rules
that a notice of motion should be issued by the registrar or be handed in to him before it may
be served on the respondent. The object of a summons or notice of motion is of course to
make the defendant or respondent party to the proceedings, and as far as is concerned he
only becomes a party when service of summons or notice of motion takes place.

Regarding the issue whether the review application papers were properly served in terms of
the Uniform rules of court, the SCA reasoned that the State Attorney had given BHP the
assurance that they had been authorised to accept service on behalf of the State respondents
of the review proceedings to be initiated by 25 January 2006. This court held that the interdict
sought and obtained by BHP was meant to ensure that the prospecting rights for which it had
applied were not awarded to anyone else pending the final determination of the review.
Furthermore that the proceedings relating to the application for an interdict and the review
were thus intimately linked as they related to the same prospecting rights in issue and the
same parties and that the litigation was continuous. In the result, the SCA concluded that
service by hand on the State Attorney on 25 January 2006 complied with the Preller J order
and that the review proceedings were initiated on that day.

Accordingly, the appeal was dismissed with costs.

--- ends ---