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[2020] ZALMPPHC 51
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Maluleke v Malamula and Others (5948/2018) [2020] ZALMPPHC 51 (7 July 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 5948/2018
In
the matter between:
MDUNGAZI
JOSEPH MALULEKE
APPLICANT
and
HASANI
THOMAS MULAMULA
FIRST RESPONDENT
MULAMULA
ROYAL FAMILY
SECOND RESPONDENT
MULAMULA
TRADITIONAL COUNCIL
THIRD RESPONDENT
PREMIER
OF THE PROVINCE OF LIMPOPO
FOURTH RESPONDENT
LIMPOPO
PROVINCIAL COMMITTEE ON
FIFTH RESPONDENT
TRADITIONAL
LEADERSHIP DISPUTES AND
CLAIMS
COMMISSION
ON TRADITIONAL LEADERSHIP
SIXTH RESPONDENT
DISPUTES
AND CLAIMS
LIMPOPO
PROVINCIAL HOUSE OF TRADITIONAL SEVENTH
RESPONDENT
LEADER
in
re:-
HASANI
THOMAS MULAMULA
FIRST APPLICANT
MULAMULA
ROYAL FAMILY
SECOND APPLICANT
MULAMULA
TRADITIONAL COUNCIL
THIRD APPLICANT
and
PREMIER
OF THE PROVINCE OF LIMPOPO
FIRST RESPONDENT
LIMPOPO
PROVINCIAL COMMITTEE ON
SECOND RESPONDENT
TRADITIONAL
LEADERSHIP DISPUTES AND
CLAIMS
MDUNGAZI
JOSEPH MALULEKE
THIRD RESPONDENT
COMMISSION
ON TRADITIONAL LEADERSHIP
FOURTH RESPONDENT
DISPUTES
AND CLAIMS
LIMPOPO
PROVINCIAL HOUSE OF TRADITIONAL FIFTH
RESPONDENT
LEADERS
JUDGEMENT
KGANYAGO
J
[1]
The applicant who is the third respondent in the main application has
brought an application
for rescission of the judgment that was
granted on 6
th
September 2019 by Makgoba JP (JP). He is
also seeking an order that he be granted 15 days within which to file
his answering affidavit.
The first, second and third respondents
(Respondents) who are applicants’ in the main application are
opposing the applicant’s
rescission application.
[2]
The background facts are as follows. On 4
th
October 2018
the respondents issued an application seeking a declaratory order and
review of the Premier’s decision to accept
the applicant’s
claim for restoration/recognition as a Senior Traditional Leader of
the Mulamula community; and to dissolve
the senior traditional
leadership in the lineage of Risimati John Mulamula with immediate
effect. The respondents were further
seeking an order to review the
decision of Limpopo Provincial Committee on Traditional Leadership
Disputes and Claims which the
Premier had relied on in taking a
decision to accept the applicant’s claim. The respondents were
further seeking an order
that Hasani Thomas Mulamula (first
respondent) be reinstated as the Senior Traditional Leader of the
Mulamula community.
[3]
The applicant was duly served with the review application in the main
application. The
applicant did not serve and file any opposing
papers. The application was opposed by the first respondent (Premier
of the Province
of Limpopo), second respondent (Limpopo Provincial
Committee on Traditional Leadership Disputes and Claims) and fourth
respondent
(Commission on Traditional Leadership Disputes and
Claims). The applicant was not present or represented in court when
the application
was argued. The judgment of JP was delivered on 6
th
September 2019 wherein the respondents were successful in their
application.
[4]
In his founding affidavit for rescission of judgment, the
applicant avers that the
reasons for his default are that on 5
th
October 2018 he was served with the review application. On receipt of
the application, he gave instructions to Mr Cedrick Baloyi
of MC
Baloyi attorneys on 17
th
October 2018 to oppose the
respondents review application. After paying the necessary deposit
and consulting with counsel on 3
rd
November 2018, he was
assured that the opposing papers were settled and filed. He made some
follow-up by phoning and also visiting
his attorneys’ offices
wherein he was assured that everything was on track.
[5]
The applicant was surprised in the evening of the 6
th
September 2019 when he learned that judgment was delivered that day
and that it went against him. According to the applicant the
matter
went to court without his knowledge. He tried to contact Mr MC Baloyi
without success. He then instructed his present attorneys
of record
to investigate the matter. It was found that MC Baloyi attorneys
never filed any opposing papers.
[6]
He again approached MC Baloyi attorneys to find out what
transpired. MC Baloyi attorneys
gave him copy of a covering letter
dated 17
th
October 2018 addressed to Musa Baloyi Attorneys
in Polokwane to act as their correspondents. He was also given copy
of unsigned
notice to oppose. Mr MC Baloyi insisted that the opposing
papers inclusive of the answering affidavit were signed and served.
Unfortunately,
those documents were nowhere to be found. He was never
served with the set down for the hearing of the respondents’
review
application.
[7]
It is the applicant’s contention that had his version
been placed before the
court, it would not have granted the orders
sought. He denied that Mr Nzamani Maxwell Mingayimani was the
chairperson of Mulamula
Royal Council and also a member of the
Mulamula Royal Family. The applicant avers that Mr Mingayimani is a
commoner and he is also
not of royal blood. According to the
applicant on 17
th
October 1996 Mr Minyayimani facilitated
a meeting of one of the contested issues. From the inception of
Mulamula Royal Council,
Mr Mingayimani never attended any Royal
Council or Royal Family meetings.
[8]
According to the applicant, the first chairperson of Mulamula
Royal Family was Mr
Thomas Magezi Mulamula who was succeeded by Mr
Risimati Elias Mulamula who is still the current chairperson. The
secretary of the
Royal Family from date of inception to date is
Khazamula Robert Maluleke. That the alleged resolutions of the Royal
Council attached
to the review application were false as they were
not done by the relevant and authorized persons. That the attendance
register
of Mulamula Royal Council and Royal Family does not reflect
the names of Mr Mingayimani.
[9]
The applicant avers that the current chairperson of Mulamula Royal
Council, Mr Risimati
Elias Maluleke, on 29
th
April 2019
wrote a letter as the chairperson to the Department of Co-operative
Governance, Human Settlement and Traditions Affairs
(“COGHSTA”)
requesting it to intervene in the confrontations between the group
supporting him (applicant), and the
one supporting Hasani Thomas
Mulamula (first respondent).
[10]
These disputes about chieftaincy were referred to the
Commission of Inquiry, where evidence was led,
assessed and
evaluated. The Commission recommended that the chieftainship be
restored to the first house of Gezani Johannes Maluleke.
He
(applicant) is the one who lodged the claim on behalf of the family
with the support of the elder brother George Maluleke the
son of
Samuel Maluleke. George has even deposed an affidavit on16
th
May 2017 in support for the claim of chieftainship. George had since
passed away. Prior to deposing the affidavit, George had written
a
letter requesting the applicant to act as a Senior Traditional Leader
until he (George) assumes the position.
[11]
On 25
th
April 2018, the Premier communicated the outcome
of the Commission to them. The Royal Family held a meeting on 23
rd
June 2018 wherein they agreed to appoint him (applicant) as an Acting
Senior Traditional Leader of Mulamula Traditional Authority.
On 25
th
June 2018 the secretary of the Royal Family wrote a letter to the MEC
of COGHSTA notifying the MEC of the Royal Family’s
resolutions.
He submitted that the decision of the Commission to restore the
chieftaincy to the right house cannot be faulted.
[12]
The respondents in their answering affidavit have submitted that the
applicant’s explanation for his
default is unsatisfactory,
because it is improbable, and contains too many inaccuracies and gaps
like failing to file confirmatory
affidavits by his former attorneys
and/or their correspondents; he failed to explain how he could have
expected answering papers
to be filed in circumstances where he does
not even allege that he deposed any answering affidavit before a
commissioner of oath;
and further does not explain why he expected an
answering affidavit to be filed before receipt of the supplementary
founding affidavit
and/or amended notice of motion.
[13]
The respondents avers that the applicant’s defence appears to
be based on Mr Mingayimani who signed
the resolution of the Mulamula
Royal Council dated 4
th
September 2018 and a confirmatory
affidavit and alleges that Mingayimani was not a member of the
Mulamula Royal Family; the resolution
of the Mulamula Traditional
Council dated 23
rd
September 2018 as not done by the
relevant and authorised persons; that his claim for chieftainship was
not personal, but was rather
for the chieftainship to be restored in
the first house of Gezani Johannes Maluleke; that the Limpopo
Provincial Committee on Traditional
Leadership Disputes and Claims
(“the Committee”) came to the correct conclusion; that on
29
th
October 2014 George Maluleke penned a letter
requesting that the applicant act as Senior Traditional Leader until
he assumed
the position; that on 16 May 2017, George Maluleke deposed
an affidavit in which he recorded his support for the claim of
chieftainship;
that newly-obtained affidavits supports the narrative
that Gezani Johannes Maluleke was Mkhachani Jim Maluleke’s
biological
son; and that the Mulamula Royal Family had met to discuss
the implementation of the Premier’s decision, and had decided
that the applicant be appointed as Acting Senior Traditional Leader.
[14]
It is the respondents’
contention
that the applicant does not explain how these allegations support his
defence, and also does not set out the nature and
grounds of his
defence. Further that these allegations are either wholly
unsubstantiated or irrelevant.
[15]
The applicant argued that the issues in the main application
were not challenged not as a results
that he did not want or
neglected to do so, but largely because the attorneys he so trusted
as officers of court misled him severely
to his detriment. He submits
that it was his earliest desire and wish to have the review
application opposed so that the chieftainship
dispute can be settled
by the court once and for all.
[16]
The respondents argued that the JP’s judgment cannot be
characterised as a default judgment,
as it was heard in the opposed
roll, and decided on the merits after consideration of the
applicant’s and State respondents’
oral and written
submissions. The respondents have submitted that the applicant did
not explain how his evidence, if acceptable,
would make any
difference.
[17]
The applicant has brought his rescission application under both Rule
42(1) and common law. Under
common law, in order to succeed, an
applicant for rescission of a judgment taken against him/her must
show good cause. Rule 42(1)
provides that the High Court may, in
addition to any other power it may have,
mero
motu
or
upon the application of any party affected, rescind or vary an order
or judgment erroneously sought or erroneously granted in
the absence
of a party affected thereby. (
See
Colyn v Tiger Food Industries LTD t/a Meadow Feed Mills (Cape)
[1]
[18]
In
Chetty
v Law Society, Transvaal
[2]
Miller JA said:
“
But it is clear that in principle and in the long standing
practice of our
Courts two essential elements of “sufficient
cause” for rescission of a judgment by default are:
(i)
that the party seeking relief must
present a
reasonable and acceptable explanation
for his default; and
(ii)
that on the merits such a party has a bona fide
defence, which prima facie
carries some prospect of success.”
[19]
It is common cause that the applicant was properly served with the
respondent’s review
application. On been served with the
application, the applicant instructed his previous attorneys MC
Baloyi attorneys to oppose
the application. His previous attorneys
never filed any opposing papers. When the applicant made follow ups
about the progress
of the matter, he was assured that everything was
under control, whilst that was not the case. It is clear that his
previous attorneys
were grossly negligent in handling the applicant’s
matter. The question is whether negligence by a legal practitioner is
a good ground for granting of a rescission application.
[20]
In
Webster
and Another v Sanlam Insurance Co Ltd
[3]
Kotze
JA said:
"A
lay client, like each of the appellants, is ordinarily entitled to
regard an attorney duly admitted to the practice of the
law as a
skilled professional practitioner. Ordinarily he places considerable
reliance upon the competence, skill and knowledge
of an
attorney
and he trusts that he will fulfil his professional responsibility. It
is, of course, not unknown for an attorney or his
firm to be
negligent in carrying out professional duties, but that is not usual,
and
a
fortiori
to
the lay client it would be a most unusual and unexpected occurrence.
Consequently, in considering whether the neglect of
an attorney
constitutes a special circumstance within the meaning of that phrase
in sec. 24 (2) (a) of the Act, the correct approach
should always be
to regard it as a relevant factor and to recognize that such neglect
by an attorney may frequently be a special
circumstance on its
own vis-à-vis his client. To hold, without
qualification, as was done in Snyman’s case,
supra at p194 A-B,
that the client is bound by the negligence of his legal adviser is,
in my respectful view, wrong"
[21]
The applicant when he instructed his previous attorneys, he expected
them to execute his mandate
with the necessary diligence, skill and
care required of a reasonable attorney under the circumstances. His
mandate to his previous
attorneys, was clear and was to oppose the
respondents review application. The mandate was given on time. Even
after giving the
mandate to his previous attorneys he made follow ups
about the progress of his case but was misled that everything was
under control.
He would not have known that his previous attorneys
were misleading him as he had put his trust in them, and also as a
lay person,
when told that everything is under control, he was bound
to take their word.
[22]
Whilst courts are slow to penalize a litigant for his legal
practitioner’s inept conduct
of how he handled his litigation,
there comes a point where there is no alternative but to make the
client bear the consequences
of the negligence of his attorneys.
(See
Salojee and Another NNO v Minister of Community Development
[4]
)
.
In the case at hand, the applicant after giving his previous
attorneys mandate to oppose the respondents’ review
application,
made some follow ups to be updated about the progress of
his case but unfortunately was misled into believing that everything
was
under control. He trusted his previous attorneys to act
professionally and in a responsible manner, and was also relying on
their
competence, skill and knowledge as admitted legal
practitioners. In my view, in this case, the negligence of the
applicant’s
previous attorneys cannot be imputed on him. He
would not have foreseen that his previous attorneys would have acted
in the manner
in which they did.
[23]
However, that is not the end of the matter, the other respondents
have opposed the respondents
review application, and they argued it
in court. The judgment of the JP was based on the application which
was argued in the opposed
roll by the applicants (respondents in the
rescission application) and some of the respondents been present. The
question is whether
the judgment of the JP can be classified as a
default judgment which will entitle the applicant to bring an
application for rescission
under Rule 42(1) or common law. The
applicant avers that since he was not part of the proceedings, there
are certain evidence which
the court was unaware of, which could have
precluded the granting of the judgment and orders had the court been
made aware of them.
[24]
In
Rossitter
and Others v Nedbank Ltd
[5]
Mbha
JA said:
“
The law governing
an application for rescission under Uniform Rule 42(1)(a) is trite.
The applicant must show that the default judgment
or order had been
erroneously sought or erroneously granted. If the default judgment
was erroneously sought or granted, a court
should, without more,
grant the order for rescission. It is not necessary for a party to
show good cause under the sub-rule. Generally,
a judgment is
erroneously granted if
there
existed
at
the time
of
its issue a fact which the court was unaware of, which would have
precluded the granting of the judgment and which would have
induced
the court, if aware of it, not to grant the judgment”
[25]
The applicant in the respondents’ review application was the
main “subject matter”
as the whole dispute was centred
around him. In his judgment the JP has stated “the third
respondent Mr Maluleke, who is
the subject matter in the traditional
leadership dispute and claim that served before the Committee did not
oppose this application.”
The third respondent in the main
application who is Mr Maluleke is the applicant in this rescission
application. The JP has acknowledged
that the applicant is the main
role player in the whole dispute. The JP was unaware that the
applicant had given instructions to
his previous attorneys to oppose
the review application and that his previous attorneys had failed
him. Had these facts been brought
to the JP’s attention, I
doubt whether he would have proceeded hearing the application without
affording the applicant an
opportunity to be present and be heard.
This application proceeded on the basis that the applicant was not
opposing it, whilst
that was not the case.
[26]
The JP has accepted the uncontested version of the respondents that
the applicant’s father
Gezani was not the biological son of
Hosi Jim and concluded that he had no right to inherit the
traditional leadership from Hosi
Jim. The JP also accepted that the
respondents’ version was confirmed by an affidavit by Mzamani
Maxwell Mingayimani a member
of the Royal Family.
[27]
The applicant dispute that Mingayimani is a member of the Royal
Family, but that he is a commoner
who served as a secretary and his
role was to record the minutes. The applicant avers that from
inception of the Mulamula Royal
Council, Mr Mingayimani never
attended any of the Royal Council or Royal Family meetings. The
applicant’s version that his
father Gezani was the biological
son of Jim Maluleke is confirmed in an affidavit by Gezani Daniel
Maluleke who has stated that
in the Royal Family, they do not marry
women who already bore children from other men and disputes
allegations that Gezani was
not the biological son of Mkachani Jim
Maluleke (Hosi Jim). The two versions of the applicant and the
respondents creates a material
dispute of facts which could not be
resolved on papers. Had the JP been made aware of this material
dispute of facts, he would
have either dismissed the application or
referred it for oral evidence.
[28]
In setting aside the Premier’s decision the JP found that the
applicant has lodged the
chieftaincy claim for himself or for his own
whilst he had no capacity to do so, and that Gezani Johannes Maluleke
could have been
the person to lodge the claim. The JP concluded that
the committee erred in making a recommendation that the applicant
lodged the
claim on behalf of the other house of Gezani Johannes
Maluleke.
[29]
The applicant avers that he had lodged the chieftaincy dispute on
behalf of the house of Gezani
Johannes Maluleke and not for himself.
In his founding affidavit the applicant has attached a letter dated
29
th
October 2014 written by Mkhachani George Maluleke in
which he gave permission to the applicant to act as Senior
Traditional Leader
of Mulamula community on his behalf as he was
still employed somewhere and not yet ready to occupy that position.
The applicant
has also attached an affidavit dated 16
th
May 2017 deposed by George in which he confirms his consent and
support of the claim lodged by the applicant for the chieftainship
to
be restored to the first house from the third house. George further
stated that he is unable to avail himself to the Commission
as his
child was sick and hospitalised. In that affidavit he had stated that
he was residing in Chiawelo and the affidavit was
deposed at Moroka
SAPS. George has since passed away. It does not seem that the JP was
made aware of the letter dated 29
th
October 2014 and
affidavit deposed on the 16
th
May 2017. Had the JP been
made aware of the two documents I doubt whether he would have arrived
at the same conclusion that the
applicant was lodging the claim for
himself.
[30]
The JP found that the Committee did not have the mandate to
investigate the claim any further
since the applicant was not the
rightful heir of Gezani Johannes Maluleke and that his claim ought to
have been dismissed. This
conclusion was on the basis that he did not
have the version of the applicant and was under the impression that
the applicant was
not opposing the review application. He was
therefore unaware of material evidence which were in possession of
the applicant which
might have persuaded him otherwise.
[31]
The JP has found that the Premier has appointed the applicant as an
Acting Senior Traditional
Leader of Mulamula Traditional Community
with effect from 13
th
January 2019, and that such
appointment was made without consultation and approval of the Royal
Family. The applicant in his founding
affidavit has attached the
minutes of the 23
rd
June 2018 by Mulamula Royal Family in
which the outcome of their successful claim was deliberated and it
was resolved that the
applicant be appointed as an Acting Senior
Traditional Leader of Mulamula Traditional Authority. The outcome of
meeting was communicated
to the Premier per their letter dated 25
th
June 2018 which is attached to the applicant’s founding
affidavit. It does not seem that the JP was made aware of these
documents.
[32]
The applicant in the whole dispute is the main role player, however,
the dispute was finalized
without his input as the court was under
the impression that he was not opposing the respondents review
application. The court
did not have an opportunity to hear his
version before the matter was finalized.
[33]
In
Occupies,
Berea v De Wet
[6]
Mojapelo
AJ said:
“…
the
High Court did not discharge its duty to enquire into all of the
relevant circumstances. This resulted in the Court being unaware
of
essential issues of fact when granting the order. The Court was for
instance not aware that there were 180 occupants who were
absent when
it granted the eviction order. The Court was further not aware that
those who purported to confirm the agreement on
the side of the
applicants had no mandate to bind the absent 180 applicants. The
basis for granting the eviction order was that
all the parties had
consented thereto. The 180 absent applicants had however not
consented thereto and were not bound by anybody
present in Court. The
eviction order was thus erroneously granted in the absence of the 180
applicants.”
[34]
This matter affects the whole community of Mulamula. It is not just
about the applicant. It will
be in the best interest of all the
parties involved for their version to be heard in order to properly
dispose the whole matter
and in that case there will finality and
certainty. As the court was under the impression that the applicant
was not opposing the
review application, that resulted in the court
being unaware of all the essential issues of fact before delivering
the judgment
and order. In my view, the judgment and order was
erroneously granted in the absence of the applicant.
[35]
In the result, I make the following order:
35.1. The judgment
and order against the applicant delivered on the 6
th
September 2019 is hereby rescinded.
35.2 The
first, second and third respondents jointly and severally to pay the
applicant’s costs on party and party
scale.
35.2 The applicant to
file his answering affidavit within 15 days of this order.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL
FOR APPLICANT : ADV LA NKOANA
INSTRUCTED
BY :
MABOKO MANGENA ATTORNEYS
COUNSEL
FOR
1
ST
,2
ND
AND 3
RD
RESPONDENTS
: ADV NAUDE
INSTRUCTED
BY
:
JONATHAN SNYMAN DIAMOND INC
DATE
OF HEARING
: 28 MAY 2020
DATE
OF JUDGEMENT
: 7
TH
JULY 2020
[1]
2003 (6) SA 1 (SCA)
[2]
1985 (2) SA 756 (A) at 765 B-C
[3]
1977 (2) SA 874
(A) at 883 G-884 A
[4]
1965 (2) SA 135 (A)
[5]
[2015] ZASCA 196
(1 December 2015) at para 16
[6]
2017 (5) SA 346
(CC) at 366 F to 367
A