About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 426
|
|
Thulo v Madolo and Another (697/2023) [2023] ZAFSHC 426 (31 October 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case No: 697/2023
Reportable: YES/NO
In the matter
between:
JANTJIE
SABATA THULO
Applicant
and
HANS
SMANGA
MADOLO
First Respondent
RELEBOHILE
PENELOPE MADOLO
Second Respondent
Coram:
Opperman, J
Heard:
5
October 2023
Delivered:
31 October 2023.
This judgment was handed down in court and
electronically by circulation to the parties’ legal
representatives
via
email and release to SAFLII on 31 October 2023. The date and time of
hand-down is deemed to be 15h00 on 31 October 2023
Judgment:
Opperman, J
Summary:
Opposed motion –
application for order of the costs of the removal of encroachment –
costs of the application
JUDGMENT
INTRODUCTION
[1]
It was ordered on 22 June 2023 that:
1.
The respondents shall remove the encroachment erected upon the
applicant's property
within twenty-one (21) days after the granting
of this order and make good the land on which the encroachment was
erected.
2.
In the event of the respondent failing to comply with paragraph 1 of
this order, the
applicant is hereby authorised and directed to remove
the encroachment on the respondents' behalf and if needs be with the
assistance
of the relevant sheriff.
3.
Prayer 3 of the relief sought in the notice of motion is postponed to
the opposed
roll on Thursday 27 July 2023.
4.
The costs occasioned by the postponement shall stand over for later
determination
[2]
Prayer 3 reads as follows:
3.
Costs of this Application as well as costs of removing the
encroachment:
[3]
There is a paradox in the orders and the prayer above in that it
would
follow automatically that if the respondents were ordered to
remove the encroachment, they will have to carry the costs of the
removal. They cannot remove the encroachment without carrying the
costs. The judgment of the court sitting on 22 June 2023 could
not be
obtained for clarity.
[4]
The rationale behind the postponement to hear the issue of the costs
for
the removing of the encroachment as well as the costs of the
application is difficult to determine on the order and the facts of
the case.
[5]
If the respondents did not comply with the order they are in contempt
of the order of the court and the applicant has the remedy of:
“2. In the event of the respondent failing to comply
with paragraph 1 of this order, the applicant is hereby authorised
and directed to remove the encroachment
on the respondents'
behalf
and if needs be with the assistance of the relevant
sheriff.
” It follows that the costs of the removal can then
be claimed from the respondents.
[6]
On the facts of the case, it was undoubtedly not the intention of the
court to order and authorise the removal of the fence and hold the
applicant liable for the costs. A reasonable inference is that
this
application might be moot but for the issue of the costs for the
litigation.
[7]
That said; the costs for the litigation could have been addressed on
22
June 2023.
THE
CASE FOR THE APPLICANT
[8]
If I am mistaken on the above; fortifying the fact that the
respondents
must carry the liability for the costs of the removal
consequent to the June 2023 - order are the facts proven and that
already
existed and the law that prevailed when the order was made as
is aptly pointed out by the applicant.
1.
The respondents have already conceded that the fence erected
on their
immoveable property, by the erstwhile owner thereof, is unlawfully
encroaching upon the applicant's immovable property
and is to be
removed.
2.
The applicant is the registered owner of the immoveable property
on
which the encroachment occurs. The respondents are the registered
co-owners of the immoveable property adjacent to the applicant's
property, which property is benefitting from the encroachment of the
fence.
3.
The parties were not
ad idem
regarding the extent of the
encroachment. The respondents averred that the encroachment is
negligible whilst the applicant averred
that the encroachment is
approximately 125 square metres in extent, which is supported by the
testimony of the land surveyor that
the encroachment is "well
into" the applicant's property and constitutes a substantial
encroachment. The encroachment
has been proven and the order for
removal was made.
4.
It is common cause that the fence being the cause of the encroachment
was erected by the previous owner of the encroaching property, Mr
Kakane. The respondents took issue with the applicant's purported
failure to have the encroachment removed by Mr Kakane. This forms the
basis of their submission that they should not bear the costs
of the
removal of the encroachment. It is however, evident from the papers
that the applicant attempted to resolve the matter amicably
with Mr
Kakane before approaching an attorney, addressed formal demands to Mr
Kakane as early as 2017, had consequently informed
Mr Kakane of the
encroachment, and had already instituted proceedings to compel Mr
Kakane to remove the encroachment which proceedings
could not be
served or proceeded with in the light of Mr Kakane's sale of the
immoveable property to the respondents.
5.
The applicant cannot be said to be the author of his own misfortune,
contrary to that which has been submitted by the respondents. It is
clear that the applicant demanded rectification of the issue
by the
respondents, but the respondents failed to adhere to these demands.
That the respondents failed to heed notifications to
collect
registered post addressed to them, does not assist them whatsoever.
6.
Insofar as the respondents' submission that the applicant's
claim
lies against Mr Kakane is concerned, the respondents are the
registered owners of the encroaching property and as such are
vested
with all of the benefits and entitlement of ownership upon transfer.
They are liable for the risks and responsibilities
that stem from
ownership.
7.
Moreover, they are directly deriving a benefit from the encroachment
through the unlawful use and enjoyment of the applicant's land. The
applicant referred in their heads of argument to the ruling
of
Murray, AJ in
Bet-el Faith Mission v Motthamme and Others
(5306/2017)
[2020] ZAFSHC 6
(16 January 2020):
[10]
It is important to note that encroachment is not to be construed as a
type of nuisance: it is an unlawful
act. The encroacher unlawfully
interferes with the neighbour's use of his land without having a
right to do so. In the instant
case the encroachment interferes with
the Applicant's intention to build a new Church and to expand the
parking area to accommodate
more congregations. Equity or fairness
only becomes an issue when the owner of the land claims removal of
the encroachment and
the court has to exercise its discretion to
order such removal or to award compensation.
8.
The encroachment constitutes a continuous wrong. The applicant
correctly so,
relies on the case of the Supreme Court of Appeal
in
Barnett v Minister of Land Affairs
2007 (6) SA 313
(SCA).
The respondents, as the present owners of the encroaching property,
are the present perpetrators of wrongful conduct. The
respondents
claim against the previous owner cannot be said to have prescribed.
[20]
In considering the special plea of prescription, the postulation is,
of course, that the allegations underpinning
the government's claim
had in fact been established. Broadly stated, it must therefore be
accepted for the prescription issue that
the defendants' occupation
of their sites constitutes a contravention of both the Decree and the
common law. Departing from this
premise, the answer to the
prescription defence is, in my view, to be found in the concept which
has become well-recognised in
the context of prescription, namely
that of a continuous wrong. In accordance with this concept, a
distinction is drawn between
a single, completed wrongful act - with
or without continuing injurious effects, such as a blow against the
head - on the one hand,
and a continuous wrong in the course of being
committed, on the other. While the former gives rise to a single
debt, the approach
with regard to a continuous wrong is essentially
that it results in a series of debts arising from moment to moment,
as long as
the wrongful conduct endures (see eg Slomowitz v
Vereeniging Town Council
1966 (3) SA 317
(A); Mbuyisa v Minister of
Police, Transkei
1995 (2) SA 362
(Tk)
(1995 (9) BCLR 1099)
; Unilever
Bestfoods E Robertsons (Pty) Ltd and Others v Soomar and
Another
2007 (2) SA 347
(SCA) in para [15]).
[22]
…
To my way of thinking, the result is that the existence
and occupation of the structures form part of the continuous wrong
perpetrated
by the defendants
. It follows that, in my view, the
special plea of prescription cannot be sustained. (Accentuation
added)
9.
It is trite that where an owner of immoveable property seeks an order
for the
removal of an encroachment, the court is vested with
discretion whether to order the removal of the encroachment or to
make an
award of damages in favour of the owner to compensate for the
loss suffered by the encroachment. In the instance the order has been
made and it is water under the bridge. The costs of the removal are
apparently in issue.
10.
It is the argument of the applicant that the fault of the
encroachment does not lie with the applicant.
That it is apparent
from the case law that the court may not hold the impoverished owner
of the encroached upon land, liable to
bear the cost of the removal
of the encroachment. To do so would be tantamount to placing the
financial burden of remedying an
unlawful act on the person on whom
the unlawful act was inflicted and would be untenable. The principle
that the cost of the removal
of the encroachment falls to be borne by
the encroaching landowner is further supported by the judgment in
Phillips v South African National Parks Board
(4035/07) [2010]
ZAECGHC 27 (22 April 2010).
[21]
There is some uncertainty as to whether a court has a discretion to
refuse the grant of a final interdict
when the applicant has
establish a clear right and a reasonable apprehension of harm. This
has been the subject of conflicting
decisions. On the one hand it has
been held that where a clear right has been established the
discretion of a court to refuse a
final interdict is very limited and
depends exclusively upon the question whether the alternative remedy
is adequate (see Transvaal
Property and Investment Company Ltd and
Reinhold and Co. v SA Townships Mining and Finance Corp Ltd and the
Administrator
1938 TPD 512
at 521; and United Technical Equipment
Company v Johannesburg City Council
1987 (4) SA 343).
On the other
hand it was held in Candid Electronics v Merchandised Buying
Syndicate
1992 (2) SA 459
at 464G that “the grant or refusal of
an interdict is a matter within the discretion of the Court hearing
the application
and depends on the facts peculiar to each individual
case and the right which the applicant is seeking to enforce or
protect”.
See also Kemp, Sacs and Nell Real Estate (Edms) BPK v
Soll en ‘n Ander
1986 (1) SA 673
(O) at 689; and Wynberg
Municipality v Dreyer 1920 (AD) 439 at 477.
It has, however,
consistently been accepted that where an applicant seeks a demolition
order in respect of an encroachment constructed
on its property the
court does have a discretion.
See Rand Klaterraad v Bothma en ‘n
ander
1997 (3) SA 120
and the authorities set out therein; and
Trustees, Brian Lackey Trust v Annandale
2004 (3) SA 281
at 290 para
[26] to 291 para [28] and p. 292G-H.
I shall assume, without
deciding same, that I do have a wide and equitable discretion (see
Trustees, Brian Lackey Trust (supra)
at 291 para [28]) which is not
dependent exclusively on the question whether an alternative remedy
is adequate
(compare Transvaal Property and Investment Company
(supra) at 521).
[22]
Section 25(1) of the Constitution of the Republic of South Africa Act
108 of 1996 provides as follows:
“
No one may be
deprived of property except in terms of law of general application,
and no law may permit arbitratory deprivation
of property.”
[24]
It is indisputable that an encroachment of the nature in issue in the
instant case constitutes an interference
with the applicant’s
property rights such as to constitute a deprivation in terms of the
provisions of section 25 of the
Constitution. It follows that, in
exercising its discretion the court will accept, as a starting point,
that the owner is entitled
to claim a demolition order in respect of
the encroaching structure.
The primary remedy is therefore an
order for removal of the structure
(see Trustees, Brian Lackey
Trust (supra) p. 292; and Rand Klaterraad (supra) at 138F; compare
also Meyer v Kaiser
1980 (3) SA 504
(D)). In respect of the exercise
of the court’s discretion Hefer JA, in the context of a claim
for specific performance,
in Benson v SA Mutual Life Assurance
Society
1986 (1) SA 776
stated as follows at 783C-E:
“
This does not mean
that the discretion is in all respects completely unfettered. It
remains, after all, a judicial discretion and
from its very nature
arises the requirement that it is not to be exercised capriciously,
nor upon a wrong principle ….
It is aimed at preventing an
injustice – for cases do arise where justice demands that a
plaintiff be denied his right to
performance – and the basic
principle thus is that the order which the court makes should not
produce an unjust result which
will be the case, eg, if, in the
particular circumstances, the order will operate unduly harshly on
the defendant. …”
(Accentuation added)
11.
The applicant maintains that the respondents are however, not without
their own remedies. Their remedies
lie against Mr Kakane in terms of
the contract of purchase and sale concluded between the parties.
12.
Lastly, the applicant submits that it follows that the applicant,
having already achieved
substantial success in the relief sought by
way of this application should be awarded his costs.
13.
The applicant moves for an order that the respondents pay the costs
occasioned by the removal of the
encroachment as well as the costs of
the application, inclusive of such costs occasioned by the
postponements of the matter on
8 and 22 June 2023 respectively.
FINDING
ON THE CASE FOR THE APPLICANT
[9]
The June 2023 - order stands and it follows on the above that the
respondents
must pay for the removal even if they have not done so
within 21 days after 22 June 2023. Another issue is the costs of the
litigation.
[10]
This is
without any doubt a case wherein the vision of the legislator to
solve cases by mediation could have been fulfilled.
[1]
When the case served before the court on 5 October 2023 before me
Advocate Roux for the respondents made it clear that they come
to the
litigation with the proverbial olive branch. They proposed that the
applicant and respondents will see to the removal and
re-installation
of the devil's fork fence, and bear the cost occasioned by the
removal and re-installation on equal basis. They
will each be liable
for payment of their own legal costs. The respondents also withdrew
the interlocutory application filed on
3 October 2023.
[11]
The origin of the instigation to proceed with expensive, acrimonious
and awkward litigation
in the High Court is not known to the court.
The difference in opinions have been declared and timeous
intervention by the legal
practitioners and parties to involve the
previous and current owners could have resolved the matter years ago.
The outcome, here
and now, must be as fair as possible to all
concerned and, as the court can muster in the consternation. The
background is important
for perspective.
[12]
The matter was postponed on 27 July 2023 to 17 August 2023 for
settlement negotiations.
The matter was again postponed to 5 October
2023. Counsel for the respondents also brought it to the attention of
the court that
the postponements of the matter on two previous
occasions were due to the fact that the respondents were awaiting
approval from
their legal insurance company to defend the claim. This
is indicative of people, unfamiliar with the processes of litigation
and
the law, that are thrown into said litigation; litigation that
could have been avoided. The applicant and the respondents are
clearly
collateral damage to the conduct of Mr Kekane. That said; the
law is and was clear all along.
THE
CASE FOR THE RESPONDENT
[13]
This is the
view and information submitted by the respondents:
[2]
1.
The applicant and the respondents are owners of adjoining stands in
Honey Ball Crescent,
Lourierpark, Bloemfontein, Free State. Their
dispute concerns what is termed a “devils fork”
encroachment erected over
the property of the applicant by the
previous owner of the respondents’ property.
2.
The applicant previously lodged a case against the previous owners
under case number
3275/2021. The case seems to have been abandoned
and that led to this particular case.
3.
The respondents have, prior to the issuing of the application by the
applicant
indicated that they do not oppose the removal of the
encroachment caused by the devils’ fork fence.
4.
The fence was erected sometime in 2009 or 2010 by the previous owner
about 10 years
ago and registered into the registered owners' names
in 2019.
5.
The respondents had already indicated to the applicant as early as
2019 when they
bought the property that they have no objection
whatsoever with the applicant removing the encroachment.
6.
The applicant updated the respondent regularly on the progress or
lack thereof on
the case between himself and the previous owner of
the respondents’ property on the case that he was having with
the previous
owner of the respondent's property. At no stage during
these updates did the respondent deny the applicants right to remove
the
encroachment.
7.
This action flows from the duty to respect the neighbour's possession
in the sense
that he must not be excluded wrongfully from the
possession of what belongs to him.
8.
Where encroachment is the only problem, the court has discretion to
either order removal
of the encroachment or to award damages and
compensation. In such instances, the deciding factor is the
disproportionality or otherwise
between the removal of the
encroachments or inconvenience suffered by the aggrieved land-owner.
When compensation rather than demolition
is ordered it is done
usually on the basis of what might be viewed as acquiescence, and
prejudice and the principles of neighbour
law are taken into
consideration. (
Lester v Ndlambe Municipality
2015 (6) SA 283
(SCA) at paragraph [22],
Rand Waterraad v Bothma,
1997 (3) SA
120
(O), at 138, and
Trustees Brian Lackey Trust v Annandale
2004 (3) SA 281
(CPD) at paragraph [23])
9.
It can readily be seen from the respondents answering affidavit that
the issue to
be determined by the court is not whether the
encroachment should be removed or not. The respondents have already
acceded to the
removal of the encroachment. In fact, the respondents
agreed to the removal before the applicant brought the application.
The respondents
always maintained that they had no objection to the
removal of the encroachment and that the applicant was free to remove
it. This
attitude by the respondents was maintained even after
the applicant brought the application as can be seen in the
correspondence
to the applicant’s legal representatives
attached to the answering affidavit.
10.
Despite this communication the applicant persisted in bringing the
application and failed to take the
respondents into his confidence in
accepting the offer of removing the encroachment. Not once did the
applicant respond to the
offer by the respondents to remove the
encroachment. Even if there was some doubt that the respondents were
not sincere in the
removal of the encroachment, the fact that the
respondents repeated this offer to the applicant in the answering
affidavit should
have proved beyond reasonable doubt that the
respondent had no objection with the removal of the encroachment.
11.
The respondents never engaged in obstructive behaviour, never denied
that the encroachment should be
removed, have time and again pointed
this out to the applicant. Despite all this, the applicant still
deemed it necessary to ignore
the offer by the respondents and
approached the courts in a matter that could have been resolved by
the parties.
12.
If one has regard to
inter-alia
the conduct of the respondents
in this matter it is evident that the applicant ought to have sought
to mediate the dispute in terms
of rule 41A(2)(a) of the Uniform
Rules (the rules) of the court.
The applicants' attorneys ought to
have advised the applicant about mediation of the dispute, especially
in light of the respondents’
cooperation
. (Accentuation
added)
13.
Considering the foregoing, there exist no factual or legal reason why
the respondents should be saddled
with the costs of the application
or the removal of the encroachment.
Judging from the behavior of
the applicant (Who persisted with litigation unnecessarily despite
the respondent agreeing to remove
the encroachment) it is the
respondents' case that the court should show its disapproval in the
manner in which the applicant conducted
this case and visit the costs
of this application on the applicant's attorneys who were in a much
better position to advise the
applicant in the face of such clear
corporation by the respondents.
(Accentuation added)
14.
The time period that lapsed from the time that the encroachment
occurred to the time that the application
was brought by the
applicant (3 years) is indicative of the fact that the applicant had
enough time to engage with the respondents
on the removal of the
encroachment (Seeing that the respondents were not against removal)
and that the encroachment had an insignificant
impact on the
applicants.
15.
In Rand Waterraad, the main policy reason relied upon by the court as
justification for leaving the
encroachments in place was acquiescence
or delay in bringing the application. The court found that the time
period between becoming
aware of the encroachment and filing the
complaint for its removal indicated that the detriment suffered by
the affected landowner
on account of the encroachment was
insignificant. The court reasoned that the applicant would have
approached the matter with greater
urgency had the encroachment
caused as great a disadvantage as alleged by the applicant. (my
emphasis). The court also stated that
justice and equity dictated
that the tardiness with which the applicant had approached the
removal process should result in the
order for removal being denied.
(
Rand Waterraad v Bothma
1997 (3) SA 120
(O) at 138).
16.
The applicant was not under pressure to bring this application and
had enough time to mediate the dispute.
17.
Having regard to all the above-mentioned factors, most specifically
the willingness of the
respondents to accede to the removal of the
encroachment, we submit that the matter be referred for mediation
between the parties,
alternatively that the applicants remove the
encroachment as it had been maintained by the respondent all along
and bear the costs
of the removal of the encroachment.
18.
Further to the above, it is our submission that the applicant bears
the costs of this application
which he persisted with despite clear
corporation of the respondents prior to the application being brought
and after the application
was instituted.
FINDING
[14]
Both parties are to blame for the litigation, and they will have to
carry the costs thereof.
The respondents could have removed the fence
and claim the costs from the previous owner as soon as they became
aware of the issue.
The applicant could have removed the fence as
soon as he was able to prove the encroachment and with a court order
as to the costs
and some time ago. The June 2023 - order should have
on application of the applicant, included an explicit order for the
costs
of the removal of the fence even though the implication might
be clear. The complexities and animosity of the case is to be
placed at the door of all the parties. The law on the issue was and
is clear to the parties. They will have to share the costs
of the
litigation.
[15]
Due to the confusion caused by the ongoing litigation am I forced to
make an order on the
costs of the removal of the fence.
[16]
ORDER
1.
The respondents to pay the costs occasioned by the removal of
the
encroachment.
2.
Each of the parties to carry their own costs for the application,
inclusive of such costs occasioned by the postponements of the matter
up until 5 October 2023.
M
OPPERMAN, J
APPEARANCES
On
behalf of the applicant
J.
DONNELY - BORNMAN
Kramer
Weihmann Inc
Bloemfontein
On
behalf of the respondents
A.L.
ROUX
Moroka
Attorneys
Bloemfontein
[1]
2022: Munyati T.F,
The
Role of Mandatory Mediation in the Transformation of the South
African Civil Justice System
,
https://repository.up.ac.za/bitstream/handle/2263/78835/Munyati_Role_2020.pdf?sequence=1&isAllowed=y.
Also
see Rule 41A of the Uniform Rules of the High Court
MEDIATION
AS A DISPUTE RESOLUTION MECHANISM
Rule
41A
(1) In this
rule—
“
dispute”
means the subject matter of litigation between parties, or an aspect
thereof.
“
mediation”
means a voluntary process entered into by agreement between the
parties to a dispute, in which an impartial and
independent person,
the mediator, assists the parties to either resolve the dispute
between them, or identify issues upon which
agreement can be
reached, or explore areas of compromise, or generate options to
resolve the dispute, or clarify priorities,
by facilitating
discussions between the parties and assisting them in their
negotiations to resolve the dispute.
(2) (a) In
every new action or application proceeding, the plaintiff or
applicant shall, together with the summons
or combined summons or
notice of motion, serve on each defendant or respondent a notice
indicating whether such plaintiff or
applicant agrees to or opposes
referral of the dispute to mediation.
(b) A defendant or
respondent shall, when delivering a notice of intention to defend or
a notice of intention to oppose,
or at any time thereafter, but not
later than the delivery of a plea or answering affidavit, serve on
each plaintiff or applicant
or the plaintiff’s or applicant’s
attorneys, a notice indicating whether such defendant or respondent
agrees to or
opposes referral of the dispute to mediation.
(c) The notices
referred to in paragraphs (a) and (b) shall be substantially in
accordance with Form 27 of the First Schedule
and shall clearly and
concisely indicate the reasons for such party’s belief that
the dispute is or is not capable of being
mediated.
(d) Subject to the
provisions of sub-rule (9)(b) the notices referred to in this
sub-rule shall be without prejudice and
shall not be filed with the
registrar.
[Para. (d) substituted
by GNR.2133 of 3 June 2022.]
(3) (a)
Notwithstanding the provisions of sub-rule (2), the parties may at
any stage before judgment, agree to refer
the dispute between them
to mediation: Provided that where the trial or opposed application
has commenced the parties shall obtain
the leave of the court.
(b) A Judge, or a
Case Management Judge referred to in rule 37A or the court may at
any stage before judgment direct the
parties to consider referral of
a dispute to mediation, whereupon the parties may agree to refer the
dispute to mediation.
(4)
Where a dispute is referred to mediation—
(a) the parties
shall deliver a joint signed minute recording their election to
refer the dispute to mediation;
(b) the parties
shall prior to the commencement of mediation proceedings enter into
an agreement to mediate;
(c) the time
limits prescribed by the Rules for the delivery of pleadings and
notices and the filing of affidavits or the
taking of any step shall
be suspended for every party to the dispute from the date of
signature of the minute referred to in
paragraph (a) to the time of
conclusion of mediation: Provided that any party to the proceedings
who considers that the suspension
of the prescribed time limits is
being abused, may apply to the court for the upliftment of the
suspension of the prescribed
time limits; and
(d) the process of
mediation shall be concluded within 30 days from the date of
signature of the minute referred to in paragraph
(a): Provided that
a Judge or the court may on good cause shown by the parties extend
such time period for completion of the
mediation session.
(5) (a) In
proceedings where there are multiple parties some of whom are
agreeable to mediation and some of whom are
not, parties who are
agreeable to mediation may proceed to mediation notwithstanding any
other party’s refusal to mediate.
(b) The time
limits prescribed for the delivery of pleadings and notices and the
filing of affidavits or the taking of any
step shall be suspended
for every party from the date of signature of the minute referred to
in sub-rule (4)(a) to the time of
conclusion of mediation by the
parties who have elected to mediate: Provided that any party to the
proceedings who considers
that such suspension of time limits is
being abused, may apply to the court for the upliftment of such
suspension.
(c) In any matter
where there are multiple issues, the parties may agree that some
issues be referred to mediation and that
the issues remaining in
dispute may proceed to litigation.
(d) If any issue
remains in dispute after mediation, the parties may proceed to
litigation on such issue in dispute.
(6)
Except as provided by law, or discoverable in terms of the Rules or
agreed between
the parties, all communications and disclosures,
whether oral or written, made at mediation proceedings shall be
confidential
and inadmissible in evidence.
(7) (a) Upon
conclusion of mediation the parties who engaged in mediation shall
inform the registrar and all other
parties by notice that mediation
has been completed.
(b)
Notwithstanding the failure of parties who have engaged in mediation
to deliver the notice referred to in paragraph
(a), the suspension
of the time limits referred to in sub-rule (4)(c) shall lapse unless
a Judge or a court has extended the
time limit and notice thereof
has been given to all parties to the proceedings within 5 days of
such order.
(8)
(a) Mediation shall be deemed to be completed within 30 days from
the date of signature of the joint
minute referred to in sub-rule
(4)(a), from which date the suspension of the time limits prescribed
for the delivery of pleadings
and notices and the filing of
affidavits or the taking of any step referred to in sub-rule (4)(c)
shall lapse: Provided that
where mediation is completed before the
aforesaid period of 30 days, the parties who engaged in mediation
shall deliver a notice
contemplated in sub-rule (7) indicating that
mediation has been completed.
(b) The parties
who engaged in mediation and the mediator who conducted the
mediation shall within five days of the conclusion
of mediation,
issue a joint minute indicating—
(i) whether
full or partial settlement was reached or whether mediation was not
successful; and
(ii) the
issues upon which agreement was reached and which do not require
hearing by the court.
(c) It shall be
the joint responsibility of the parties who engaged in mediation to
file with the registrar, the minute
referred to in paragraph (b).
(d) No offer or
tender made without prejudice in terms of this sub-rule shall be
disclosed to the court at any time before
judgment has been given.
(e) Where the
parties have reached settlement at mediation proceedings the
provisions of rule 41 shall apply mutatis mutandis.
(9) (a)
Unless the parties agree otherwise, liability for the fees of a
mediator shall be borne equally by the parties
participating in
mediation.
(b) When an order
for costs of the action or application is considered, the court may
have regard to the notices referred
to in sub-rule (2) or any offer
or tender referred to in sub-rule (8)(d) and any party shall be
entitled to bring such notices
or offer or tender to the attention
of the court.
[Rule 41A inserter by
GNR 107 on 7 February 2020]
[2]
The
heads of argument for the respondents.