About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 25
|
|
Le Roux v Reid and Another (2804/2006) [2012] ZAECPEHC 25 (24 April 2012)
15
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH
)
CASE NO: 2804/2006
Date Heard: 07 November 2011
Date Delivered: 24 April 2012
In the matter between:
JACQUELINE LE ROUX
….......................................................................
PLAINTIFF
And
GUY ANTHONY REID
…............................................................
FIRST
DEFENDANT
THE TRUSTEES FOR TIME OF THE
FERNDALE FAMILY TRUST
….........................................
SECOND
RESPONDENT
______________________________________________________________
JUDGMENT ON APPLICATION FOR
WITHDRAWAL OF ADMISSION MADE AT A RULE 37 CONFERENCE
DAMBUZA J:
[1] In this application the applicant,
being the plaintiff in the main proceedings, seeks to withdraw an
admission made on her behalf
by her legal representatives at a Rule
37 conference which preceded the trial. For the sake of convenience I
refer to the parties
as they are in the main proceedings.
[2] The trial in this matter proceeded
before me from 9 March 2010, up to the close of the plaintiff’s
case. At the close
of the plaintiff’s case the defendants
applied for absolution from the instance. I dismissed that
application. My judgment
is part of the record in this application
and a summary of the evidence led so far appears therein. I do
however, in this judgment,
set out, briefly, the background facts to
place this application in a clear perspective.
[3] I may as well, at this stage,
state that the plaintiff is now no longer represented by the
attorneys and counsel who represented
her up to the close of the
plaintiff’s case. It appears that the admission which is the
subject of this application was the
cause of the disagreement between
the plaintiff and her erstwhile legal representatives.
[4] The plaintiff is the owner of a
property known as the Remainder of the farm Saag Kuilen (the
plaintiff’s property). The
first defendant is the owner of an
adjoining property (to the south of the plaintiff’s property)
known as the farm Hol Rivier.
He (the first defendant) is also a
Trustee in the second defendant. The second defendant is the owner of
a property, portion 3
of the farm Saag Kuilen with abuts the eastern
boundary of the plaintiff’s property.
[5] The dispute between the parties
relates to whether the first defendant, his family and other people
are entitled to traverse
the plaintiff’s property on a road
that runs through the plaintiff’s property. This road is
described in the papers
and the trial proceedings as a rough 4 x 4
track (it is also referred to as the remainder road or the Keurkloof
road).
In the main action the plaintiff seeks
an interdict restraining the defendant, in his personal capacity and
as a Trustee of the
second defendant and those entering the
plaintiff’s property through him, from entering her property
without written consent
from her. In the alternative, she seeks a
declarator that the first defendant or anyone acting through him, may
not utilise her
property for recreational purposes.
[6] The first defendant pleads that he
is entitled to traverse the plaintiff’s property by virtue of a
duly proclaimed minor
public road numbered 119H traversing through
the plaintiff’s property to Hol Rivier. He pleads that he has,
since he acquired
Hol Rivier in 2001, used the road which traverses
the plaintiff’s property to access Hol Rivier from portion 3 of
Saag Kuilen
(the property owned by the Trust). It is common cause
that the road that the defendants claim entitlement to traverse is
the remainder
road.
[7] Further to the plea the first
defendant has filed a conditional counterclaim in which he claims
that, if the court finds that
the rod in question is not a public
road, he has (in any event) through his predecessors in title,
acquired a prescriptive right
(or a servitude) over the property.
Alternatively, so claims the first defendant, the plaintiff should be
ordered to register a
right of way in his (the first defendant’s)
favour, over the plaintiff’s property. The anticipated right of
way shall
be for use of the disputed road.
[8] Therefore the issues for
determination at the close of pleadings were the following:
whether there is a proclaimed minor
public road over the plaintiff’s property;
whether the first defendant has
acquired a servitude over the plaintiff’s property; and
whether the first defendant is
entitled to a
via necessitas
over the applicant’s
property.
[9] When the trial commenced, counsel
brought to my attention a supplementary Rule 37 minute in which is
recorded,
inter alia,
that:
“
Issue
The separated issue:
The parties are in agreement that
road 119H is a duly proclaimed minor public road.
The issue between the parties is
whether road 119H traverses portions 1 and 2 of the farm Saag
Kuilen (as contended by the plaintiff)
or Remainder of farm Saag
Kuilen to a point on the common boundary between Remainder of farm
Saag Kuilen and the farm Hol Rivier
( as is contended by the
Defendants).”
[10] It is further recorded in that
Rule 37 minute that the parties agreed that the plaintiff would amend
her summons and particulars
of claim to abandon the declaratory
relief concerning the status of road 119H.
[11] The trial then proceeded on the
premise that road 119H is a duly proclaimed minor public road, having
been proclaimed as such
in the Provincial Gazette 3675 on 23 June
1972. As a result, in my judgment on the application for absolution
from the instance
I refer to a proclaimed road 119H.
[12] In this application the plaintiff
seeks to withdraw the admission made on her behalf that road 119H is
a proclaimed road and
the consequent limitation to the issues that
would be dealt with at the trial.
Separation of issues
[13] It has been brought to my
attention in this application that I omitted to make an order on the
agreement reached between the
parties that the issues to be dealt
with at that stage of the trial be separated. As it appears in the
extract from the supplementary
Rule 37 minute, and as was submitted
before me, the issue that the parties sought to bring before me for
adjudication at that stage
of the trial was as set out in 1.2 of the
minute set out in the paragraph above. The defendant’s
counterclaim relating to
via necessitae
would be determined at
a later stage. I was agreeable to granting the order separating the
issues and in fact indicated as much
to counsel when the submission
was made. The omission was an error on my part. The trial proceeded
on the basis that I had granted
the order. I shall therefore grant an
order accordingly at the end of this judgment.
Withdrawal of the admission made at
Rule 37 conference.
[14] The approach in determining
whether a party should be permitted to withdraw an admission made at
a Rule 37 conference is set
out comprehensively in
MEC v Kruizenga
2010 (4) SA 122
(SCA) to which
Mr Ford,
who appeared on
behalf of the plaintiff, referred me during argument. I can do no
better in setting out the history of the development
of the
principles relating to this issue than
Cachalia JA
did in
Kruizenga
. At 126 E to 127B of the judgment the Learned Judge
of Appeal held:
“
The rule
(
rule
37)
was
introduced to shorten the length of trials, to facilitate settlements
between the parties, narrow the issues and to curb costs.
One of the
methods parties use to achieve these objectives is to make
submissions concerning the number of issues which the pleadings
raise. Admissions of fact made at a rule 37 conference constitute
sufficient proof of those facts. The minutes of a pre-trial
conference may be signed either by a party or his or her
representative. The rule is of critical importance in the litigation
process.
This is why this court has held that in the absence of
special circumstances a party is not entitled to resile from an
agreement
deliberately reached at a Rule 37 conference. And when, as
in this case, the agreements are confirmed by counsel in open court
and are then made a judgement or order of court, the principle
applies with even more force.
It is settled
law that a client’s instruction to an attorney to sue or to
defend a claim does not generally include the authority
to settle or
compromise a claim a defence without the client’s approval. The
rule has been applied to a judgment consented
to by an attorney
without his client’s authority and also when the attorney did
so in the mistaken belief that his client
has authorised him to do
so. The principle accords with the rule in the law of agency that
where an agent exceeds the express or
implied authority in
transacting, the principal is not bound by the transaction”
1
[15] At 129 the Learned Judge of
Appeal held:
“
To
summarise, it would appear that our courts have dealt with questions
relating to the actual authority of an attorney to transact
on a
client’s behalf in the following manner: attorneys generally do
not have authority to settle or compromise a claim without
the
consent of the client. However, the instruction to an attorney to sue
or defend a claim may include the implied authority to
do so,
provided the attorney acts in good faith. And the courts have said
that they will set aside a settlement or compromise that
does not
have the client’s authority where, objectively viewed, it
appears that the agreement is unjust and not in the client’s
best interests. The office of the state attorney, by virtue of its
statutory authority as a representative of the government, has
a
broader discretion to bind the government to an agreement than that
ordinarily possessed by ordinary practitioners, though it
is not
clear just how broad the ambit of this authority is”.
[16] The applicant’s case in
this application is that she never gave any instructions to her legal
representatives to make
the contentious admission. She further
contends that the admission is contrary to her pleadings and that if
the admission is to
stand, the trial will proceed on an incorrect
factual basis which can only lead to injustice against her.
[17] On the other
hand the defendants contend that the plaintiff is not
bona
fide.
She
was aware of the admission during the trial and the evidence of her
witnesses accords with the admission. The defendants also
highlight
the absence in the plaintiff’s case, of a contention that the
defendants’ legal representatives were aware
that the
plaintiff’s legal representatives lacked authority to make the
admission. That being the case, it does not matter
whether the
plaintiff’s legal representatives exceeded their actual
authority or made the admission against the plaintiff’s
express
instruction. The defendants were entitled to assume that the
plaintiff’s legal representatives “
clothed
with an aura of
authority and had the necessary authority to do what
(legal
representatives)
usually
do at a rule 37 conference”.
2
[18] This argument
does not account for the approach set out in
Kruizenga
3
for dealing with
questions relating to actual authority of an attorney to transact on
a clients behalf; namely, that attorneys generally
do not have
implied authority to settle or compromise a claim without the consent
of the client.
[19] I do not
understand it to be the defendants’ case that the admission was
bona
fide
and
in the plaintiff’s interests. In this regard I was referred to
the opening remarks made by the plaintiff’s erstwhile
counsel,
at the start of the trial, to the effect that :
“
One
should be careful of usage of words, I know the parties in these
proceedings and in Rule 37 talk about a proclaimed road, whether
they
use that word or not is of no consequence, because the road is not
proclaimed in the sense that it is a proclaimed road, it
is something
different”.
4
[20] I agree that this demonstrates an
uncertainty on the part of the plaintiff’s legal representative
as to the propriety
of making the admission. And in this context I
cannot find that the admission was
bona fide.
It is also
significant, in my view that this remark was made in the plaintiff’s
presence because it did place on record her
view and instructions
that she was not admitting that a proclamation exists in respect of
road 119H.
[21] At paragraph [16]
Kruizenga,
Navsa JA
remarks that:
“
It is
well established that to hold a principal liable on the basis of the
agent’s apparent authority, the representation
must be rooted
in the words or conduct of the principal, and not merely that of his
agent”.
The pleadings give a clear indication
of the plaintiff’s instructions regarding the alleged
proclamation as pleaded by the
first defendant. In her summons, the
plaintiff pleaded that:
“
The first
defendant, in his personal capacity and in his capacity as Trustee of
the Trust, contends that he, and others acting through
him, are
entitled to enter upon the plaintiff’s property and traverse
the property by means of vehicles, based on the contention
that there
exists and there has been proclaimed a minor public road, which
traverses the property.
11 The plaintiff contends that no
such public road over the property has ever been proclaimed, nor does
it exist, nor is there any
evidence of the proclamation of such
public road in the plaintiff’s title deed or in the office of
the Surveyor General or
in any of the records of Department of Roads
and Transport for the Province of the Eastern Cape.”
[22] Further, the plaintiff pleads in
her replication that the document which the defendants presents as a
publication of the proclamation,
is in fact only “
a schedule
of minor roads in the Humansdorp Division approved by the
Administrator”
.
[23] It is not in dispute that, on the
pleadings, the defendant’s case is founded on the road
traversing the plaintiff’s
property being road 119H, a duly
proclaimed public road. It is also not in dispute that the plaintiff
has, in the pleadings denied
that the road is a proclaimed public
road and that she denied that the document annexed to the defendant’s
plea is a publication
of a proclamation of the Remainder Road.
[24] Even after the agreement or
admission which is the subject of this application, the pleadings, in
so far as they define the
issues between the parties, remain as they
were; in essence, the plaintiff still denies that the track that
traverses her property
is a proclaimed public road. There is no
mention in the papers, of the defendants amending or withdrawing
their averments that
the proclaimed road119H entitles them to
traverse the plaintiff’s property.
[25] The plaintiff states that she
does not know the reason why his erstwhile legal representatives made
the admission. She insists
that her instructions to them was to deny
the existence of a proclamation. This much is evident from a copy of
her written instructions
to them on 15 January 2008 when she
instructed them regarding particulars for trial. In the plaintiff’s
written instructions
which form part of the record, the plaintiff
refers to the discrepancy in the length of road 119H as listed in the
publication
and the length of the remainder road when she measured
it. She specifically states “
I certainly do admit to the
publication of a minor road listing. Not a proclamation.”
It is also significant that during the trial each of the parties
identified on the maps or diagrams a different road as road 119H.
It
seemed to me that none of the two roads fitted the description of
road 119H as it appears in the Provincial Gazette and I expressed
my
concern to counsel.
[26] Reverting to the plaintiff’s
instructions, the minutes of a Rule 37 conference held on 27 March
2007, almost three years
prior to the admission being made, it is
recorded that according to the plaintiff “
no proclamation
is in existence in respect of the relevant road. There is a
Provincial Notice only dealing with it
.”
[27] Neither on the papers nor during
argument could the defendants refer to particular aspects of evidence
tendered on behalf of
the plaintiff which supports the admission as
they contended in argument. I also could not find any such evidence.
[28] I also consider to be of
relevance the fact that the issue whether the document in which is
listed road 119H is a proclamation
or not, to be both a factual and a
legal argument. In so far as a proclamation is a legal document which
has to conform to certain
prescripts it cannot, in my view, be
“agreed into existence”. If the contested document is not
a proclamation then
the agreement cannot be valid. I agree with the
submission on behalf of the applicant that whether the relevant
proclamation exists
or not, is a relatively limited issue and that
the defendants stand to suffer no prejudice as a result of the
withdrawal of the
admission. Further, it does seem to me that,
contrary to the principle that promotes full and proper ventilation
of issues between
parties, the agreement rather obfuscates the
issues.
[29] Having considered the context
in which the admission was made I am of the view that the agreement
reached by the parties is
unjust and is not in the plaintiff’s
best interests.
[31] It was submitted on behalf of the
defendants that even if I find for the plaintiff in this application
I should nevertheless
not grant the order sought because the absence
of a document styled “
Proclamation”
is merely a
redherring, given the plaintiff’s admission that the road is
listed in the 1972 Provincial Gazette. I do not think
that it is
proper for me to make a finding as to whether the existence of a
proclaimed road has been sufficiently established at
this stage of
the proceedings.
Costs
[32] In considering the question of
costs I take into account that the trial proceeded on the basis of
the agreement to the close
of the plaintiff’s case. I am unable
to find that the defendants acted unreasonably in opposing the
application. I take the
view that as in applications for amendments
the proper costs order would be that the applicant pay the
defendants’ costs
of opposing the application. Both parties
employed the services of two counsel and I am satisfied, regard being
had to the complexity
and importance of the issue under consideration
to both parties, that such use of two counsel was wise and
reasonable.
[33] The following order shall
therefore issue:
The first defendant’s
conditional counterclaim is separated from all other issues and
ordered to stand over for determination
on a later date if needs be.
The applicant is granted leave to
withdraw the implicit admission at paragraph 1.1 of the
supplementary Rule 37 Minute dated 19
February 2010 to the effect
that Road 119H is a duly proclaimed road.
The plaintiff is granted leave to
withdraw from the agreement recorded at paragraph 1.2 of the
supplementary Rule 37 Minute dated
19 February 2010.
The plaintiff is ordered to pay the
defendants’ costs for this application; such costs to include
the costs of two counsel.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff: Mr. Ford SC
Instructed by Goldberg & De Villiers INC. Central, Port
Elizabeth.
For the first and second respondents:
Mr M.W. Randell Instructed by Micheal Randell Attorneys, Central,
Port Elizabeth.
1
See
also the authorities cited in the judgment.
2
Kruizenga
at paragraph [20].
3
At
[11]
4
At
page 20 of the record.