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[2020] ZAECPEHC 24
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Land and Agriculture Bank of South Africa and Others v CPAD Farm Holdings and Others (2667/2017) [2020] ZAECPEHC 24 (15 July 2020)
THE
EASTERN CAPE HIGH COURT OF SOUTH AFRICA
(PORT
ELIZABETH)
JUDGMENT
Not
Reportable
Case
no: 2667/2017
In
the matter between:
LAND
AND AGRICULTURAL BANK
OF
SOUTH AFRICA
FIRST APPLICANT
MOOVILLE
(PTY) LTD
SECOND APPLICANT
WILLEM
JANSEN VAN VUUREN
THIRD
APPLICANT
And
CPAD
FARM HOLDINGS
FIRST RESPONDENT
MR
MONGESI ALFRED MDE
SECOND RESPONDENT
THE
NATIONAL DIRECTOR
PUBLIC
PROSECUTIONS
THIRD
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND REFORM
FOURTH
RESPONDENT
MIKE
TIMKOE TRUSTEES
FIFTH RESPONDENT
DONALD
GEORGE DUKE JACKSON
SIXTH RESPONDENT
THE
MASTER OF THE HIGH COURT
SEVENTH RESPONDENT
REGISTRAR
OF DEEDS CAPE TOWN
EIGHTH RESPONDENT
Coram:
GOOSEN J.
Heard:
30 JUNE 2020
Delivered:
15 JULY 2020
(By
agreement judgment delivered per email to the legal representatives
of the parties and the Registrar)
Summary:
Application for order clarifying an order granted by the court on 11
February 2020 by insertion of a qualifying phrase.
Application
premised upon the contention that the order made did not reflect the
true intention of the court In the alternative,
the fourth respondent
sought an amendment of the order granting leave to appeal to the Full
Court (leave having previously been
granted) to allow an appeal
against the whole of the judgment and order varying the original
forfeiture order granted by Majiki
Jon 13 January 2013.
Held
that the judgment delivered on 11 February 2020 was not ambiguous in
its terms and that, in the circumstances, the court has
no authority
to vary the terms of the order granted by it. Main application
dismissed with costs.
Regarding
conditional application for leave to appeal - Held that the interests
of justice favour the granting of leave to appeal
on the additional
ground.
ORDER
1.
The Fourth Respondent's
application for clarification of the judgment of 11 February
2020 is dismissed with costs.
2.
The Fourth Respondent is granted leave
to appeal to the Full Court of this Division upon the further ground,
'That
the learned judge erred in amending and deleting paragraph 5 of the
original forfeiture order granted by Majiki J, and more
particularly
that portion thereof directing that the relevant property be handed
back to the Fourth Respondent for reallocation.'
3.
That the Fourth Respondent's Notice of
Appeal be amended and amplified accordingly.
4.
That the costs of the conditional
application for further leave to appeal shall be costs
in
the appeal.
JUDGMENT
Goosen,
J.
[1]
On 11 February 2020 I handed down
judgment and issued orders varying a forfeiture order granted by
Majiki Jon 13 January 2013. Subsequent
hereto leave to appeal against
a specified aspect of the judgment was granted to the fourth
respondent (to whom I shall henceforth
refer as 'the Minister')
and
to the first applicant (to whom I shall henceforth refer as 'the Land
Bank').
[2]
The Minister now applies for an order
clarifying paragraph 2 (which substituted paragraph 5 of the Majiki J
order) which this court
granted. What has given rise to the
application is a declared intention on the part of the fifth
respondent (the duly appointed
curator
bonis)
to enter into a deed of sale
with the third applicant on behalf of Mooville (Pty) Ltd (the second
applicant in the original application
before this court) in respect
of the forfeited property (I shall hereafter refer to the second and
third applicants as "Mooville").
This envisaged sale of the
property would result in the Minister being unable to 'retain' the
property and procure its disposal
to certain beneficiaries in terms
of a land restitution programme. Accordingly the Minister seeks to
insert a clarifying phrase
in the substituted paragraph 5 of the
forfeiture order as reflecting the true intention of this court when
making the order.
[3]
It should be said that the application
was initially brought on
an
urgent
basis
seeking an interim
interdict
restraining
the
conclusion of the
sale
agreement pending the finalisation of the clarification application.
Both the Land
Bank
and
Mooville filed notices of opposition to the application but
upon Mooville furnishing an appropriate undertaking the interim
application fell away.
[4]
In the alternative to the main
'clarification' relief sought the Minister has filed a notice of
intention to amend its notice of
appeal. The effect is to seek leave
to appeal against the order deleting paragraph 5 of the forfeiture
order granted by Majiki
J. This court is approached for the extended
leave to appeal, albeit on a conditional basis
,
on the strength of the judgment in
Harlech-Jones Treasure Architects
CC
& Others v University of Fort
Hare
2002 (5) SA 32
(E). In that
matter the court held that a full bench does not have the power to
adjudicate grounds of appeal in respect of which
leave to appeal was
refused by the court
a quo.
It
is submitted that whilst this court did no refuse leave to appeal in
respect of that which it is now sought to challenge on appeal
,
leave was not sought on that basis.
Accordingly
,
to
avoid a potential hiatus on appeal it is in the interests of justice
that the Minister be permitted to advance such additional
ground of
appeal in the event that the clarification application fails.
[5]
As indicated the Land Bank and Mooville
oppose the application. Mr
Buchanan
SC
,
for
the Minister submitted,
e
n
passant,
that Mooville has no legal
interest in either the clarification application or the conditional
leave to appeal. It is not a party
to the appeal and, for this
reason, can have no interest in the grounds of appeal which the
Minister wishes to ad
v
ance.
I accept this. Ho
w
e
ver,
I am n
ot
p
ersuaded
th
a
t it ha
s
no i
nte
r
est
in
t
he
cla
r
ificatio
n
appl
i
c
a
ti
o
n
.
It wa
s
common cause t
h
at
th
e
qu
al
ify
i
ng
p
hr
a
s
e
wh
ic
h the
Minister wishes to import into the forfeiture order will put paid to
any
potential sale of the forfeited
property until the appeal is finalised. Since it was also common
cause that such a sale is presently
envisaged to Mooville, it can
hardly be denied that the determination of the clarification
application will directly bear upon
Mooville's rights and interests
sufficiently to confer upon
it a legal
interest in the outcome. In any event, the application originally
sought an operative order restraining both the
curator
bonis
and Mooville from entering
into a deed of sale.
[6]
Paragraph 2 of this court's order
provided as follows:
2.
Paragraph 5 of the order is hereby deleted and replaced with the
following:
"5.
In terms of s 57 of POCA the
curator
bonis
is authorised as of the
date on which the forfeiture order take effect, to perform all the
powers and functions
specified
in
the Act including the following
....
[7]
What followed this introductory portion
was an outline of powers which included the authority to dispose of
the property by sale
and to deal with the proceeds of such sale as
required by the Prevention of Organised Crime Act 121 of 1998
('POCA').
[8]
The Minister seeks insertion of the
following words at the commencement of paragraph 5, namely:
Subject
to the rights of the Fourth Respondent to retain the property at a
market related
value (hereinafter
referred to as
'proceeds
of sale')...
[9]
The effect of this insertion of words
will be to confer upon the Minister a right of
'retention'
of the forfeited property
subject
to payment of a market
related value to
the
curator
bonis
for disposal thereof as
proceeds of the sale in accordance with the provisions of the Act.
[10]
A court's power to clarify or amend an
order it has made is very limited. In
Zondi
v MEC, Traditional and Local Government Affairs, and Others
2006
(3) SA 1
(CC) par [28] and [29] it was stated:
[28]
Under common law the general rule is
that
a
judge
has no authority to
amend
his
or her own final order. The rationale for this principle is two-fold.
In
the
first place a judge
who
has
given a final order is
functus
officio.
Once
a
judge has
fully exercised his or her jurisdiction, his or her authority over
the subject matter ceases. The other equally important
consideration
is
the
public interest in bringing litigation to finality. The parties must
be assured that once an order of
court
has been made, it is final and they can
arrange their affairs in accordance with that order.
[29]
However our pre-constitutional case law
recognised certain exceptions to this general rule. These exceptions
are referred to the
Firestone
case.
These are
supplementing accessory
or
consequential matters
such as
costs
orders or interest on judgment debts; clarification of
a
judgment or order so as to give effect
to the
court's
true
intention; correcting clerical, arithmetical or other errors in its
judgment or order;
an
d
altering an
order
for
costs
where
it
was
made
without
hearing the parties
.
[11]
Where it
is
sought to clarify a judgment or order so
as to give effect to the true intention of the court a court may only
do so if, properly
interpreted, the meaning of the judgment or order
is obscure, uncertain or ambiguous. The court may then clarify but
not thereby
alter the sense and substance of the judgment or order
(see
Marks v Kotze
1946
AD 29
;
Firestone SA (Pty) Ltd
v
Genturico AG
1977
(4) SA 298
(A);
Thompson
v
South African Broadcasting
Corporation
[2000] ZASCA 76
;
2001 (3) SA 746
(SCA)).
[12]
Mr
Buchanan
did
not,
as I understood his
argument, suggest
that the judgment was ambiguous in its
terms. On the contrary he accepted that the judgment clearly
acknowledges and accepts the
circumstances giving rise to
the position the
Minister
finds
himself in
as
a
victim
of
criminal conduct.
It
was accepted
also
that
the court had recognised the fact that the Minister was acting, in
the forfeiture application, to protect the interests of
the 39 named
beneficiaries to
whom
it
was
intended
that ownership in the property be
transferred.
The argument however, was that the order had an unintended
consequence inasmuch as it did not make provision for that
which
was
expressly recognised, namely the
intended transfer of the property to the beneficiaries. Thus it was
argued, since the order did
not reflect the true intention to protect
the beneficiaries this court is entitled to clarify its order in the
terms proposed.
[13]
I am unable to agree with the
submissions advanced on behalf of the Minister. While it is certainly
correct that the position of
the Minister and that of the 39
beneficiaries was recognised it is not so that there is a disjuncture
between that recognition
in the reasoning and the order
which
was
framed. The recognition of the
Minister's intention to proceed with the restitution of the land to
the 39 beneficiaries cannot,
it was held, translate into an order
which
results in the property, although
declared forfeit to the
state,
being
handed to the Minister for disposal
in
accordance with the original intention.
That, in essence, is the basis upon which it was found that the order
of Majiki J could
not
stand.
It
is
for this
reason that an order
was
framed
to give effect to the provisions of s 57 of the Act,
while
accepting that disposal of the property
to the Minister
was
not
precluded by the operation of s 57.
[14]
In
my
view
Mr
Beyleveld
SC,
for the Land
Bank,
is correct m submitting that the terms
of the clarification sought would alter the 'sense and substance' of
the judgment. It follows
that I am not persuaded that an order
clarifying the judgment an order, as sought, falls within the limited
ambit of
the
authority
to
effect such clarification.
[15]
Before disposing of this aspect of the
application there
is
one
further argument raised by Mr
Buchanan
which
must
be
addressed
briefly.
It was
submitted
that the relief sought by way of clarification falls within the ambit
of section 50 (2) of POCA. The sub-section pro
v
ides
that,
(2)
The High Court m
a
y
,
when it makes a forfeiture order or at
any time thereafter, make an
y
ancillary
orders that it considers appropriate
,
including o
r
ders
for and with respec
t
to
facilitating the transfer to the State of property forfeited to the
State und
e
r
such an order.
[16]
Mr
Buchanan
submitted that this provision
entitles a court at any time after it has granted a forfeiture order
to make any ancillary order.
Reference was made to the case of
Ex
parte National
Dir
e
ctor
of Public Prosecutions
2011 (2) SACR
225
(ECP) par [9], where it was accepted that an amendment of the
powers of a
curator bonis
"
ma
y w
ell be
construed as an ancillary order and therefore authorised in terms of
section 50(2)
."
[17]
This proposition was accepted for the
sake of argument in the judgment. It was not held that such an
amendment would fall within
the ambit of section 50 (2). The case
involved a substantive application for relief in terms of s 50 (2) of
POCA. An order was
sought entitling the
curator
bonis
to make available a rubber
duck vessel which had been forfeited to the state to the law
enforcement section of Marine and Coastal
Management to be utilised
for anti-poaching activities. It was held (at paragraph 5) that,
The
o
r
de
r
so
u
ght
w
ill
certa
i
nly
,
if grante
d
,
reg
u
l
at
e
the
u
se of
the forfeited property
,
bu
t
in my view cannot be said to have any bearing upon the carrying into
effect of the forfeiture order
.
In
that sense it cannot properly be said to be ancillary to the order of
forfeiture
.
[18]
The present application is not a
substantive application brought in terms of s 50(2) of POCA. It is an
application seeking clarification
of a judgment or order. An order
made pursuant to s 50 (2) would extend beyond the ordinary scope of
clarification of a court order.
Provided it is held that the order
sought is indeed ancillary to a forfeiture order and to give effect
thereto such an order can,
where appropriate, be made. In the present
instance the words that are sought to be introduced into paragraph 5
of the forfeiture
order do not, in my view, fall within the ambit of
what is envisaged bys 50 (2). In the light of this conclusion it is
unnecessary
to consider whether a court which has made an order of
forfeiture is entitled to exercise the power conferred by s 50 (2)
even
in circumstances where there is a pending appeal against aspects
of that order.
[19]
It follows that the application for
clarification of this court's order cannot succeed.
[20]
As indicated that is not the end of the
matter since the Minister seeks conditionally and in the alternative
that leave be granted
to supplement the grounds of appeal. I accept
that it is for this court to make such determination.
[21]
The Minister wishes to supplement the
grounds of appeal by substantially broadening the scope of the
appeal. What is now sought
is to challenge this court's finding that
the original paragraph 5 of the forfeiture order is inconsistent with
the scope and purpose
of section 57. In order to obtain leave the
Minister is required to establish that leave ought to be granted
in terms
of
s
17
(1)
of
the
Superior
Courts
Act
10 of 2013
on
the
basis that
there is a reasonable prospect of
success on appeal or that there
is
some
other compelling reason to be granted leave to appeal.
[22]
Mr
Beyleveld
argued that no reasonable prospect
has been established. It was also submitted that no compelling
reasons exist to grant the Minister
leave on the extended basis
sought.
[23]
What constitutes a compelling reason is
not defined. Generally it is accepted that the importance of the case
to the parties; the
interests that may thereby be affected and the
interests of justice are factors which bear upon the decision. I need
not be persuaded
that there is a probability that the appeal
will
succeed. It is sufficient if there is
a
reasonable prospect that another court
acting reasonably may come to a different conclusion regarding the
variation
of the original forfeiture order.
[24]
In this instance significant interests
are at stake. This much is
apparent
from the litigation history and the
background which gave rise to the litigation, the details of
which
are set out in the main judgment. Mr
Buchanan
quite
correctly points to the fact that broader interests than those
represented
by
the Minister are at play. There are
also
the interests of the beneficiaries.
[25]
The fact
that
I am not persuaded that there is no ambiguity in the judgment and
orders or that I do not consider that there is any disjuncture
between the acknowledged circumstances
and
the orders made does not mean that there
is not scope for another court
to
frame
a different order by
which
effect
may
be
given to the
forfeiture
order. In the
light
of this I have come to the conclusion
that it will be in the interests of justice to grant the Minister
leave to challenge the full
ambit of the orders made in this matter.
[26]
Accordingly leave to appeal against the
judgment
of
this court ought to
be
granted
on the additional
ground
sought and the Minister granted leave to
amend the notice of appeal to
reflect
the
additional ground of
appeal.
[27]
In respect of costs there is no reason
why the costs of the clarification application should not follow the
result. In relation
to the costs of the conditional application for
further leave to appeal those costs should be costs in the appeal.
[28]
I therefore make the following orders:
1.
The Fourth Respondent's
application for clarification of the judgment of 11 February
2020 is dismissed with costs.
2.
The Fourth Respondent is granted leave
to appeal to the Full Court of this Division upon the further ground,
'That
the l
e
arn
e
d
judge
e
rred
in amending and del
e
ting
paragraph 5 of the original forfeiture order granted by Majiki J, and
more particularly that portion thereof directing that
the r
e
levant
property b
e
handed
back to the Fourth Respondent for r
e
allocation.
"
3.
That the Fourth Respondent
'
s Notice of Appeal be amended and
amplified accordingly
.
4.
That the costs of the conditional
application for further leave to appeal shall be costs in the appeal.
GOOSEN
J
JUDGE
OF THE HIGH COURT
Appearances
For
Fourth Respondent: R. G. Buchanan SC
Instructed
by:
The State Attorney
Port
Elizabeth
Ref;
Ms H Glanvill
For
First Applicant: A. Beyleveld SC
Instructed
by:Greyvensteins
Port
Elizabeth
Ref:
Mr Greg Parker
For
the Second
&
Third Applicants: T. Zietsman
Instructed
by: Schoeman Oosthuizen Inc.
Port
Elizabeth
Ref:
Mr J S Oosthuizen