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[2012] ZASCA 141
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Njemla v KSD Local Municipality (583/11) [2012] ZASCA 141; [2012] 4 All SA 532 (SCA) (28 September 2012)
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IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
SCA
CASE NO: 583/11
Reportable
In
the matter between:
MONWABISI
MORRIS NJEMLA
.....................................................................
APPELLANT
and
KSD
LOCAL MUNICIPALITY
.......................................................................
RESPONDENT
Neutral
Citation:
Njemla v KSD Local Municipality
(583/11)
[2012]
ZASCA 141
(28 September 2012)
Coram:
Navsa, Van
Heerden, Snyders and Bosielo JJA and Southwood AJA
Heard:
23 August 2012
Delivered:
28 September 2012
Summary: Interdict and
allied costs order obtained in the Land Claims Court on the basis of
misleading information – interdict
rendered academic by
subsequent events – application for rescission of costs order
justified on the basis of the court having
been misled.
______________________________________________________________
ORDER
______________________________________________________________
On
appeal from
: Land Claims Court, Johannesburg (Bam JP sitting as
court of first
Instance):
(1)
The application for leave to deliver further written argument dated
27 August 2012 is dismissed and the appellant’s attorney,
Mr M
Tshiki of Tshiki & Sons Incorporated, Mthatha, is ordered
personally to pay the costs thereof.
(2)
The appeal is dismissed with costs.
(3)
The registrar is directed to serve this judgment on the relevant law
society for investigation and action in relation to what
is stated in
para 26.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Van Heerden and
Bosielo JJA and Southwood AJA concurring)
[1] As will become
apparent the facts of this case are peculiar. The present appeal,
with the leave of this court, follows on a
successful application by
the respondent, the King Sabata Dalindyebo Municipality (the
Municipality), for rescission of a costs
order granted against it in
the Land Claims Court. Earlier, Mr Monwabisi Morris Njemla, claiming
to represent the Kwalindile Community
(the Community) as its chief,
had brought an application in the Land Claims Court. He had sought,
inter alia, an order interdicting
a development taking place, at the
instance of the Municipality, on that portion of the Remainder of Erf
912 Mthata that lies alongside
the fenced area of the Enkululekweni
Ministerial Complex, pending the finalization of a land claim lodged
by the Community with
the Office of the Regional Land Claims
Commissioner in terms of the
Restitution of Land Rights Act 22 of
1994
1
(the
Act).
[2] The basis of the
application for the interdict was that the Community had lodged a
number of land rights claims over various
portions of land, including
that part on which the development was to take place. It was
contended that the development, if it
continued, would frustrate the
objective of the Community’s land rights claim. The
Municipality, in resisting the application
for the interdict,
objected to Mr Njemla’s authority to represent the Community.
It did so on the basis that no resolution
by the Community, in terms
of which the respondent was so authorized, had been presented to that
court. The Land Claims Court (Bam
JP), however, found that the
appellant had the requisite locus standi and granted an order in
favour of the Community, as follows:
‘
A. (i) The
interim
interdict
prayed for in
paragraph 2.1 of case number LCC66/07 is granted
and is
immediately
operative
pending the
finalization of serious and consultative
negotiations with all parties
concerned but before 30 November 2007. This does not
concern any of the respondents who
neither supported nor opposed the application.
(ii) In the event of the negotiations
contemplated in paragraph 1 reaching an impasse, on or
before 30 November 2007, the 1
st
respondent (KSD) is granted leave, if
so advised, to make
an application in terms of
s 34
2
anc" HREF="#sdfootnote2sym">
2
of the
Restitution of Land Rights Act
No. 22 of 1994
as
amended.
(iii) The respondents opposing the
application in case no. LCC66/07 are ordered to pay the
costs of the application jointly and
severally, the one paying the other to be absolved.’
[3] No reasons were
provided for the order. Subsequent to the order the parties engaged
in the envisaged negotiations. During the
negotiations, the
Municipality persisted in its objections to the authority of Mr
Njemla to represent the Community. Furthermore,
it contested the
authority of the appellant’s then attorneys, Messrs Tshiki
and Sons Incorporated, to
represent the Community. Consequently, the Municipality issued a
notice in terms of
rule 7(2)
3
anc" HREF="#sdfootnote3sym">
3
of the rules of the Land
Claims Court challenging their authority. The respondent, in turn,
filed a power of attorney, reflecting
his authority
to represent the
Community. Thereafter, on 14 December 2007, Tshiki and Sons
Incorporated sent a letter to the Land Claims Commissioner,
copied to
the Municipality’s attorneys, the material part of which reads
as follows:
‘
In view of the fact that the
pending negotiations are aimed at settlement of the land claim by
Kwalindile Community, we have had
to revisit the fact that the land
lying outside the fenced Enkululekweni Ministerial Complex, which
includes the land under discussion
in the pending negotiations, was
never dispossessed by the former government of Transkei and has in
fact been used and is still
being used by the Kwalindile Community
for grazing purposes, we have advised our client as follows: -
1. That the said land lying on the
Eastern, northern, western and southern parts of the fenced
Enkululekweni Ministerial Complex
is not subject to the jurisdiction
and powers of the Land Claims Commission including the Eastern Cape
Land Claims Commissioner
in that the land claims that fall within the
jurisdiction of the said authorities are land claims in respect of
land that was dispossessed
from persons or communities after 1913
under racially discriminatory laws.
[4] As can be seen, the
letter stated that the land under development did not form part of
land which could rightfully be the subject
of a land claim by the
Community. In light thereof, the Municipality’s attorneys wrote
to Tshiki and Sons Incorporated, enquiring
whether Mr Njemla was
willing to abandon the order in the Community’s favour. On 21
January 2008, during continuing negotiations,
attorneys M Magigaba
Incorporated presented the parties thereto with a letter and
resolution indicating that
they
were
now authorized to represent the Community. Neither Messrs Tshiki and
Sons Incorporated, nor Mr Njemla, was present when this
was done.
[5] It is necessary to
record that it is common cause that the Community had not in the past
been dispossessed of the land situated
around the fenced
Enkululekweni Ministerial Complex, are currently using it for grazing
purposes and are protected therein in terms
of the
Interim Protection
of Informal Land Rights Act 31 of 1996
.
[6] Thus, the
Municipality approached the Land Claims Court for an order rescinding
only the earlier costs order in favour of the
Community, contending
that the related orders had now become academic – the time
period for negotiations referred to in the
order of the Land Claims
Court set out in paragraph 2 above had passed – and, having
regard to what appears in the preceding
paragraph, the Municipality,
understandably, did not proceed to court for an order in terms of
s
34
4
anc" HREF="#sdfootnote4sym">
4
of the Act.
[7] The Municipality
sought rescission of the costs order, contending that the order
issued by Bam JP, set out in paragraph 2 above,
had been obtained
because Mr Njemla had misled the court by supplying false
information. The basis of the application was said
to be the lack of
authority by Mr Njemla to represent the Community, and the fact that
the land was wrongly stated to be the subject
of a valid land claim
by the Community. It was submitted on behalf of the Municipality
that, had the court known the true facts,
the order would not have
been granted. Essentially, it was contended that, if the land in
question was not subject to a valid land
claim, the Land Claims Court
would not have had jurisdiction in terms of
s 22
5
anc" HREF="#sdfootnote5sym">
5
of the Act and there
would have been no need for that court to grant an interdict.
[8] In opposing the
application for rescission Mr Njemla claimed that, since Bam JP had
not furnished reasons for the orders set
out in paragraph 2 above, it
might well be that the costs order had been granted on a basis wholly
unrelated to the Community’s
land claim. Mr Njemla pointed out
that, since attorneys M Magigaba Incorporated only entered the scene
subsequent to the interdict
having been granted, it does not
necessarily follow that neither he nor Tshiki and Sons Incorporated
were unauthorised at the time
that the order had been made.
[9] Bam JP, in dealing
with the application for rescission, rejected the first ground relied
on by the Municipality, namely, that
Messrs Tshiki and Sons
Incorporated and Mr Njemla lacked authority to represent the
Community at the time of the application for
the interdict. He
reasoned that the subsequent authority presented by attorneys M
Magigaba Incorporated did not necessarily mean
that Mr Njemla or the
initial attorneys had lacked authority at the time that the interdict
was granted.
[10] Bam JP did, however,
hold in favour of the Municipality in respect of the other ground
referred to in paragraph 7, namely,
that the court below had wrongly
been brought under the impression by Mr Njemla that the land in
question was the subject of a
valid land claim by the Community. In
this regard, Bam JP referred to the correspondence set out above and
to the affidavit by
Mr Njemla opposing the application for
rescission, from which it appears clearly that the land had not been
dispossessed in circumstances
entitling a land claim by the Community
in terms of the Act. The learned judge president stated the
following:
‘
The revelation, on the part of
the respondent himself, that the property being developed was never
dispossessed, has turned the
whole
interim
interdict
order upon its
head and, in view of the fact that it was based entirely on the
belief that the contrary situation might prevail,
it has to be
reversed.
It now appears that this court did not
have jurisdiction at all and not just because the applicant asserted
it, but because the
fons et
origo
of that application
himself asserted the same. It is still a mystery to this court why
the respondent opposed the review application
6
and also why, once it had “revisited”
its earlier stance, the respondent had not then abandoned the order
for the
interdict
in
its entirety and tendered costs.’
[11] Bam JP found it
necessary to disclose in his judgment that it was with ‘some
surprise and amazement’, that he received
‘late’
supplementary heads of argument on behalf of Mr Njemla, containing a
‘submission’ that the Community
had not been dispossessed
of the land in question. Considering the affidavits filed on behalf
of Mr Njemla, and the very basis
of the application for the
interdict, it is not wholly unexpected that Bam JP ignored that
submission. The learned judge president
also recorded the following:
‘
I also, subsequently ignored,
as being unethical, a direct communication between the respondent’s
legal representative and
the court, after judgment on the
applications had been reserved, to the effect that the land fell
outside the jurisdiction of the
commission. Neither the late heads
nor the unethical communication had any impact upon the orders given
on the 2 October 2008.’
[12] Later, the learned
judge president, with reference, inter alia, to
Childerly
Estate Stores v Standard Bank of SA Ltd
1924
OPD 163
and
Nyingwa v Moolman
NO
1993 (2) SA 508
(TK),
said the following:
‘
I am satisfied that there is
authority that the court may assume its inherent jurisdiction to
rescind in the interest of justice.
In the instant case it would be
manifestly inequitable and not in the interest of justice to
implement the costs order given against
the applicant. Indeed the
costs order is the only portion still alive in the temporary
interdict
in
case LCC66/07 on the 2 October 2007 order.’
[13] It is against that
conclusion that the present appeal is directed. It is necessary to
record that before the appeal was heard
in this court, Mr Njemla
passed away and his place in the litigation has now been taken by the
executor of his estate. I shall
hereafter refer to the executor as
the appellant. The appellant submitted that it had not been competent
for the Municipality to
apply to rescind the costs order without the
court below having provided the reasons for the order. Moreover, it
was contended
that since the Municipality, in its founding affidavit,
had relied on
s 35(11)
7
anc" HREF="#sdfootnote7sym">
7
of the Act, read with
rule 64
8
anc" HREF="#sdfootnote8sym">
8
of the
Land Claims Court
Rules, in
the application for rescission, it could not thereafter
rely on the court’s common law power to rescind judgments
allegedly
wrongfully obtained. It is difficult to discern the precise
nature of an additional ground of attack on the decision of the court
below. What follows is best gleaned from the appellant’s
argument. It was contended that the interdict, set out in paragraph
2
above, encompassed not just the Community’s claim to the land
on which the development was due to take place, it also included
a
claim for restitution of a right in land by the Abathembu Community
and that the costs order might also have ensued because of
that other
claim. This submission appears to be an extension of the argument
that no reasons were supplied and that the application
for rescission
was therefore premature.
[14] In oral argument
before us, it was contended on behalf of the appellant that,
considering that Bam JP, as recorded in his judgment,
had been
informed of the true state of affairs by way of the late
supplementary heads of argument and by way of direct communication
to
the court after judgment had been reserved, it can hardly be argued,
as the Municipality now does, that had Bam JP known the
truth, he
would not have granted the costs order.
[15] The submission that
the Land Claims Court’s failure to supply reasons for the costs
order precluded an application for
rescission is fallacious. It must
surely be so that the application by Mr Njemla was granted on the
basis that the requirements
for an interim interdict had been met.
Those requirements are trite and, having regard to the facts asserted
by Mr Njemla in his
founding affidavit, it can hardly now be
contended that the application should not have been granted. The
costs order by the Land
Claims Court in favour of the Community could
only have been reached on the basis that costs followed the result.
This ground of
appeal must be rejected.
[16] The contention that
because the Municipality, in its founding affidavit filed in support
of the application for rescission,
relied on
s 35(11)
of the Act read
with
rule 64
of the
Land Claims Court Rules, the
court below was not
entitled to rely on its common law power of rescission is, in my
view, equally without merit. The facts are
common cause. The court
had been misled, leading to an understandable, but erroneous
conclusion that the requirements for the grant
of an interim
interdict had been met. Put simply, the Community had not been
dispossessed of the land in question, was enjoying
grazing rights in
terms of a different statutory regime and was thus not entitled to
the interim interdict. The rescission order
was undoubtedly correct.
[17] It was submitted
that, since another community, namely, the Abathembu community, had
submitted a claim for the restitution
of rights to the land in
question on the basis of having been dispossessed of rights therein,
the interdict and the allied costs
order were in any event justified.
This submission, too, is without foundation. The Community, and the
Community alone, sought
the interim interdict on the basis that they
had been dispossessed of rights to the land in question. The
Abathembu community was
never party to the litigation. The very
object of the application for the interdict by the Community was to
thwart the development
on that part of the land not subject to a
claim by it under the Act. That basis having fallen away, the
Community was not entitled
to any order in its favour.
[18] It is thus not
necessary to debate further whether, in the light of a land rights
claim being lodged by the Community, in terms
of
s 10
of the Act, the
processes set out in
sections 11
to
14
had to be followed before the
court could be said to lack jurisdiction, or whether the substratum
of the claim having been admitted
to be lacking, the court was
deprived of jurisdiction, rendering the order a nullity ab initio. In
my view, it is enough for the
court to have rescinded its order on
the basis that it had been misled into granting the order that it
ultimately set aside.
[19] The submission on
behalf of the appellant, that Bam JP had been alerted in the late
supplementary heads of argument to the
true state of affairs, and
that this somehow justified the costs order, is misplaced. Instead of
filing the late supplementary
heads, Mr Njemla ought, rightly, to
have withdrawn the application and tendered the Municipality’s
costs.
[20] I can see no reason
why, considering the court’s common law powers of rescission,
the court below should not have ordered
the rescission of the costs
order, which was the only remaining live issue.
[21] Another issue
remains to be addressed briefly. Appeals against costs orders only
are generally discouraged.
9
In the present case
opposition to the application for rescission was ill-advised. Taking
it further, particularly since Mr Njemla
has passed away, this is
even more so. This appeal should never have been pursued.
[22] During the hearing
before this court, the appellant’s attorney made repeated
reference to the documents filed in support
of the application for
the interdict. A full set of those papers had not been placed before
the court. At one stage the appellant’s
attorney submitted that
it might be better if he applied to have those documents now admitted
on appeal. It was put to him that
there was no formal application
before us and that, in the event that he sought to pursue that path,
he would have to file the
necessary application with an attendant
affidavit explaining why a fuller record had not been placed before
us earlier. It was
also put to him that the Municipality would
probably seek an opportunity to respond and that this would
necessitate a postponement
which would have cost implications. The
appellant’s attorney was given an opportunity, during an
adjournment, to consider
his options. Subsequent to the adjournment
he informed the court that he would not pursue the ‘application’.
[23] Twelve days after
the hearing of the appeal, the appellant’s attorney filed
documents in the registrar’s office
entitled ‘Application
for Leave to Deliver Further and Written Argument of the Appeal with
Reference to the Founding Affidavit
in the Main Application’.
Careful scrutiny of the further written argument reveals nothing
novel. The supporting affidavit
is distressing. Regrettably, because
of what I intend to say about it thereafter, it is necessary to
repeat the rather lengthy
relevant parts thereof:
‘
The following transpired during
argument of the appeal namely:-
3.1 That the record in the main
application which was not before court was indeed necessary to have
been placed before court as
only the record of the rescission
application was before court.
3.2 The court wanted to know the
grounds upon which the main application was founded and I was unable
to recollect these grounds
from the cuff.
3.3 The court also enquired from me as
to the content of the founding affidavit in the main application
which were of relevance
to the appeal after I had indicated a desire
to have the matter postponed in order for the appellant to place the
said record before
court before the appeal is decided. I was unable
to recollect the said content save to mention what I recalled
nebulously that
the founding affidavit has the content of the letter
that I wrote to the Eastern Cape Regional Claims Commissioner namely
that
the land on which development was taking place was never
dispossessed from the applicant’s community as they continued
to
graze their livestock from this land. I was discouraged from
insisting in the application by intimidation by the court that it has
negative costs implications for the appellant. I ended up not
applying for a postponement.
3.4 These is a lot that generally
turned on the record of the main application which was not before
court especially the applicant’s
founding papers
4.
Upon
adjournment of the appeal for judgment thereon, I was curious to
remind myself about the content of the applicant’s founding
affidavit, copy of which is annexed hereto marked “BB”,
save some of the annexures that bear no relevance to the instant
appeal, in the main application which I quickly perused and then
discovered the following relevant information therein, namely:-
4.1
That the claim by the applicant’s community is not limited to
the land on which the development was taking place at the
time the
main application was launched. That land on which development is
taking place is only a small piece of the land claimed
by the
applicant’s community being the land situated below and outside
the fenced Enkululekweni Ministerial Complex and the
land inside the
fenced Complex being claimed land claimed by the applicant’s
community. This Honourable Court evinced some
impression that the
land claimed by the applicant’s community was limited to the
one the development was taking place so
much so that the
communication that was made on behalf of the applicant’s
community that this land was not dispossessed from
the applicant’s
community revealed absence of jurisdiction of the Land Claims Court
to have adjudicated on the main application.
I confirmed that this is
not the position. The land on which development was taking place is
only a small piece of the whole land
claimed by the appellant’s
community.
4.1.1
I annex hereto marked “BBB” a copy of the land claim made
by the applicant’s community.
4.2
I further recalled that the land claimed by the applicant’s
community is held under a title deed which was issued to the
respondent after the same land had been donated by the Eastern Cape
Provincial government to the respondent’s predecessor
called
Municipality of Umtata. The donation of the said land was pursuant to
the advent of the new constitutional dispensation
in South Africa
regarding disposal of the state land the right to which, in terms of
the Disposal of State Land Act of 1961, vests
in the State President
which powers, in terms of the
Land Administration Act of 1995
, the
President may delegate to the National Minister of Land Affairs who,
in terms of the latter Act may also delegate to the provincial
Mec’s
in control of the land in a particular province at which the
particular land is situated subject to the conditions
which the
Minster of Land Affairs may stipulate.
4.2.1
The said title was first issued to the Eastern Cape Provincial
Government and a copy thereof is annexed hereto marked “CCC”
which is annexure “TJP2” in the main application.
4.3
The said land was, in the process of exercise by the MEC in the
Eastern Cape Province dealing with land matters, donated to
the
respondent’s predecessor the Municipality of Umtata which later
acquired ownership over the said land.
4.3.1
I annex hereto marked “DDD” a copy of the said title deed
holding the remainder of Erf 912.
4.4
The said land was donated by the National Minister of Land Affairs to
the Province of the Eastern Cape subject to certain conditions
to
which a list of all the properties being donated was attached and the
remainder of erf 912 is one of such properties.
4.4.1
A copy of the said conditions stipulated by the National Minister of
Land Affairs is annexed hereto marked “EEE”.
4.5
As stated above, the same land was donated to the respondent’s
predecessor by the Eastern Cape Provincial government.
This donation
itself was subject to the same conditions stipulated by the National
Minister of Land Affairs as those set out in
annexure “EEE”
above.
4.5.1
A copy of the said donation is annexed hereto marked “FFF”.
4.6
I further recalled that amongst the grounds for the application which
are set out in the founding affidavit in the main application,
the
applicant relied on the violation of the conditions of delegation
annexure “EEE” above which according to the applicant
rendered the purported alienation of the land in question by the
Government to the respondent and by the respondent to some tenants
who are developers by means of lease agreements invalid and a
nullity. An order was also sought for the setting aside of the said
lease agreements.
4.6.1
I noted the said grounds in themselves when upheld by the court a quo
could form a solid basis for the award of the costs
of the
application to the applicant without any reference to the merits of
the land claims of the applicant and Abathembu Nation.
4.7
I was further reminded about the fact that the main application had
the support of the Acting Chieftainess of Abathembu controlling
the
area over which the claimed land is situated. She supported it by
means of a confirmatory affidavit which was annexed to the
applicant’s founding affidavit in the main application. I thus
noted that in such circumstances, the applicant was not just
championing the cause of Abathembu Nation when he brought the main
application also protecting the land claim by Abathembu but
had the
consent of their leader Chieftainess No-Italy Mtirara.
4.7.1
I annex hereto marked “GGG” a copy of the confirmatory
affidavit of Chieftainess No-Italy Mtirara and “HHH”
the
land claim by Abathembu the existence of which precluded development
as commanded by the Deed of Ministerial Delegation of
Statutory
powers.
4.8
I was also alerted to the fact that the claimed land which is
described as the remainder of erf 912 had, at the time the main
application was launched, been gazetted. I recalled that it was one
of the arguments against the development of the land in question
by
the developers at the instance of the respondent that the gazetting
of the said land by itself precluded anyone from developing
the said
land. I thus noted that this ground alone could have formed a solid
basis under the provisions of
section 11 subsection 7 paragraph
(Aa) of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994)
basis for the court to have awarded the costs of the application
to the applicant as the development of the land in question was
prohibited under the said section.
4.8.1
I annex hereto marked “JJJ” a copy of the said gazette.’
[24] There are several
problems with what the appellant’s attorney stated in the
affidavit over and above the procedural improprieties
attendant upon
what he has resorted to. I deal with the last aspect first. There was
no formal application before the hearing of
the appeal, nor is there
one now, to have the record supplemented. The appellant’s
attorney has put part of the record of
the application for the
interdict before us by subterfuge. The problem is not only that there
is no guarantee of the authenticity
of what was attached to the
affidavit. It is not the full record and one has no idea of what the
answering affidavit contained
in response to all the issues raised.
Furthermore, there is no explanation on affidavit as to why the
documents now deemed necessary
for adjudication were not put before
us in the first place.
[25] Turning to what is
set out in the passages, reproduced in para 23 above, the following
observations must be made:
The appellant’s
attorney has been intimately involved with this case, apparently from
inception. His claim, that during the
exchange with this court when
the appeal was heard, he was unable to recollect the grounds on which
the application for the interdict
was based, is entirely
unconvincing. His statement that during the exchange he recalled
‘nebulously’ that the founding
affidavit had made
reference to the letter he wrote to the Regional Claims Commissioner
in which he had informed her that the community
had never been
dispossessed of the land in question lacks credibility and reflects
negatively on him. Whilst it is true that in
the founding affidavit
he has now attached to the application there is reference to the fact
that the community used the ground
in question as grazing land, there
is no reference to the letter, nor is it clear that the community had
never been dispossessed
of the land. In fact, all the indications are
to the contrary. His statement that, subsequent to the appeal, he was
‘curious’
to remind himself about the contents of the
founding affidavit is, in my view, dubious. The title deed conditions
now referred
to appear to have featured in litigation conducted some
years before and they add nothing more to the appellant’s case.
During
the hearing, the appellant’s attorney was rightly, in my
view, informed of this court’s concern about escalating costs,
particularly because an estate was involved and it might well have an
increasingly prejudicial effect on a widow who might be financially
vulnerable. The appellant’s attorney was provided full
opportunity to decide in turn whether to seek an adjournment in order
to decide whether to apply formally to supplement the record with a
full explanation as to why the parts now considered necessary
had not
been placed before us earlier. The appellant’s attorney’s
statement that he was discouraged by the court does
not redound to
his credit. A legal representative’s duty is to assert his
client’s case fearlessly, after considering
all the
implications of the propositions put to him or her by the court. By
attaching a part of the record to his affidavit to
support an
application to permit further written argument the appellant’s
attorney was seeking to achieve that which he had
expressly stated he
had decided against pursuing. At the very least that conduct is
disingenuous.
[26] The respondent
wisely decided not to respond to the application referred to in the
immediately preceding paragraphs. In any
event, none of what is now
improperly being sought to be placed before us affects the reasoning
that appears earlier in the judgment.
It provided no new insights and
does not impact in the least on the very basic propositions that the
land in respect of which the
interdict was sought had never been the
subject of a land claim by the community represented by the
appellant. More importantly,
as stated and acknowledged by the
attorney himself, that community had not been dispossessed of that
part of the land in respect
of which the interdict had been sought.
The attorney’s conduct, in bringing the belated application in
the manner described
above, is in my view deserving of severe censure
and he should be ordered personally to pay the costs of the belated
application.
In addition, the registrar will be directed to bring
this judgment to the attention of the relevant law society for
investigation
and for such action as it might deem appropriate in
relation to the issues raised in paragraphs 24, 25 and 26 above and
concerning
his conduct in connection with what was initially placed
before Bam JP, in the application for the interdict.
[27] Subsequent to the
appeal hearing and after judgment was reserved, but before this
judgment was finalised, Snyders JA became
indisposed. This judgment
is therefore a decision of the remaining members of the court.
[28] The following order
is made:
1. The application for
leave to deliver further written argument dated 27 August 2012 is
dismissed and the appellant’s attorney,
Mr M Tshiki of Tshiki &
Sons Incorporated, Mthatha, is ordered personally to pay the costs
thereof.
2. The appeal is
dismissed with costs.
3. The registrar is
directed to serve this judgment on the relevant law society for
investigation and action in relation to what
is stated in para 26.
____________________
MS NAVSA
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: M Tshiki
Instructed
by
Tshiki
& Sons Incorporated
Mthatha
Mthembu
& van Vuuren
Bloemfontein
FOR
RESPONDENT: Adv. T.M Ntsaluba
Instructed
by
Mnqandi
Incorporated
Mthatha
1
Section
10 of the Act provides for the lodgment of claims and representation
of communities. Section 10(1) reads as follows:
‘
Any person who or
the representative of any community which is entitled to claim
restitution of a right in land, may lodge such
claim which shall
include a description of the land in question, the nature of the
right in land of which he, she or such community
was dispossessed
and the nature of the right or equitable redress being claimed, on
the form prescribed for the purpose by the
Chief Land Claims
Commissioner under section 16.’
2
Section
34(1) of the Act reads as follows:
‘
Any national,
provincial or local government body may, in respect of land which is
owned by it or falls within its area of jurisdiction,
make
application to the Court for an order that the land in question or
any rights in it shall not be restored to any claimant
or
prospective claimant.’
3
Rule
7(2) reads as follows:
Any party that disputes
the authority of a person acting on behalf of any party may deliver
a notice –
(a) within ten days
after it has come to his or her notice that such person is so
acting; or
(b) with the leave of
the Court on good cause shown at any other time, calling on that
person to prove his or her authority
4
See
note 2.
5
The
exclusive jurisdiction of the Land Claims Court to determine rights
to restitution of any right in land and allied matters
is set out in
s 22 of the Act.
6
Bam
JP is referring to a review application brought by the Municipality
for the setting aside of a notice in the Government Gazette,
in
which a land claim in relation to the land in question was
published.
7
Section
35(11) reads as follows:
‘
The Court may,
upon application by any person affected thereby and subject to the
rules made under section 32, rescind or vary
any order or judgment
granted by it -
(a)
in the
absence of the person against whom that order or judgment was
granted;
(b)
which was
void from its inception or was obtained by fraud or mistake common
to the parties;
(c)
in respect of
which no appeal lies; or
(d)
in the
circumstances contemplated in section 11 (5):
Provided that where an
appeal is pending in respect of such order, or where such order was
made on appeal, the application shall
be made to the Constitutional
Court or the Appellate Division of the Supreme Court, as the case
may be.’
8
Rule
64(1) reads as follows:
‘
Subject
to
section 35(11)
of the
Restitution of Land Rights Act, the
Court
may suspend, rescind or vary, of its own accord or upon the
application of any party, any order, ruling or minutes of a
conference which contains an ambiguity or a patent error or
omission, in order to clarify the ambiguity or to rectify the patent
error or omission.’
9
Farlam,
Fichardt and Van Loggerenberg
Erasmus Superior Court Practice
Loose leaf edition at A1-50.