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[2019] ZALMPPHC 24
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Nkuna Traditional Council v Moagi (03/2018) [2019] ZALMPPHC 24 (23 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED
CASE
NO: HCA 03/2018
23/5/2019
In
the matter between:
NKUNA
TRADITIONAL COUNCIL
APPELLANT
and
SOLLY
MOAGI
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against the judgment and order granted by the
Magistrate Court at
Ritavi on 11 August 2017 in terms whereof the
Respondent's point
in
limine
was
upheld and the Appellant's application dismissed with costs on an
attorney and client scale. In the Court
a
quo
the
Respondent raised three points
in
limine,
namely,
lis alibi
pendens, res judicata
and
jurisdiction as to monetary value.
[2]
The
Court
a quo
handed
down the judgment and order only in respect of the
lis
alibi pendens
although all the three
points
in limine
before
the Court were argued by the parties' legal representatives. This
Court sitting as a Court of appeal is enjoined
to
exercise its powers in terms section
173 of the Constitution of the Republic of South Africa, 1996 to
regulate its own process and
in the interest of justice to hear
argument and give judgment in respect of the other two points
in
limine
left out by the Court
a
quo.
Factual Matrix
[3]
On
or about 17 February 2017 Greater Tzaneen Municipality ("the
Municipality") initiated application proceedings in the
Ritavi
Magistrate Court against the Respondent under case No 73/2017 seeking
the following relief:
3.1.
Restraining
the Respondent from threatening the employees of the Municipality
from carrying out construction next to Nkowankowa
cemetery at
Mohlabas Location 567 LT; and
3.2.
An
order authorizing the removal of fences erected by the Respondent.
The application was heard by
Magistrate (Mr) Moosa on the 19 May 2017 and he ruled that the value
of the land forming subject matter
of the proceedings exceeds the
jurisdictional limit of the Magistrates' Court. Accordingly the
Respondent's point
in limine
as to jurisdiction was upheld.
[4]
During
June 2017 the Municipality (as the First Applicant) and the Appellant
(as the Second Applicant) jointly initiated proceedings
in the High
Court, Polokwane under case No 4124/2017 against the Respondent. The
relief sought was essentially the same as that
sought by the
Municipality in the Ritavi Magistrate Court. The application was
enrolled for hearing on the 20 June 2017.
[5]
On
the 20 June 2017 the matter was removed from the roll by agreement
between the parties and for purposes of settlement negotiation.
The
Court granted an order to that effect. However the parties did not
arrive at any settlement. The application was subsequently
withdrawn
by the Applicants on the 21 July 2017. A notice of withdrawal was
served and filed at Court.
[6]
On
the 6 July 2017 the Appellant instituted proceedings against the
Respondent in the Ritavi Magistrate Court under case No 357/2017,
which is the subject of this appeal. On 14 July 2017 the Respondent
filed an answering affidavit raising three points
in
limine,
namely,
/is
alibi pendens,
res
judicata
and jurisdiction as to value of the
property. The /is
pendens
point
relates to the fact that the High Court case was allegedly still
pending. The res
judicata
was
to the effect that the matter was already adjudicated upon and
finalised by Magistrate (Mr) Moosa on the 19 May 2017 when he
at the
same time made a ruling that the Magistrate Court does not have
1urisdiction to hear the matter, regard being had to the
value of the
property in dispute.
Issues to be determined
[7]
The following are the issues to be
determined by this Court:
7.1.
Was there
·lis
pending between the parties with regard
to the High Court Case No 4142/2017 and Magistrate Court Case No
357/2017? Does the upholding
of a l
is pendens
point
in
limine
call for a dismissal of the application?
7.2.
Are the points
in limine
of res
judicata
and
jurisdiction as to the monetary value of the property appropriate
regard being had to the judgment and order of Magistrate Moosa
on 19
May 2017?
Submissions and Discussion
[8]
The
Court a
quo
upheld
the point
in limine
of
lis alibi pendens
having
made a finding that the High Court matter was still pending. It is
common cause that the High Court case was withdrawn by
the Appellant
on the 21 July 2017. This is before the Court a
quo
made the finding and delivered its
judgment and order on 11 August 2017. Clearly when the Court a
quo
heard the matter the High Court case
was no longer any case pending between the parties. The learned
Magistrate a
quo
erred.
He does not seem to appreciate the difference between removal of the
matter from the roll and withdrawal of the proceedings.
When a matter
is removed from the roll it can still be reinstated for hearing but
when the matter is withdrawn and a Notice of
Withdrawal is served and
filed to that effect, the matter has reached finality.
[9]
The
learned Magistrate was under the wrong impression that the parties
are obliged to negotiate a settlement because it was so ordered
by
the High Court on 20 June 2017. According to the Magistrate the
parties were still to come back to the High Court after settlement
negotiation. The learned Magistrate erred in this regard. The effect
of the Notice of Withdrawal is that the matter has reached
finality
between the parties. It is wrong for the Court a
quo
to hold that a notice of withdrawal
filed after a preliminary point of
lis
pendens
has been raised by the
Respondent, does not have the effect of terminating the proceedings
so withdrawn. See
Starita v Absa Bank
Ltd and Another
2010 (3) SA 443
(GSJ) at para [7].
[10]
Furthermore the Court a
quo
erred in dismissing the
Appellant's application upon upholding the
lis pendens
point
in limine.
As a defence, a special plea of
lis alibi
pendens
is merely a dilatory one, if it is upheld the usual
practice is to stay the proceedings in the one matter and not to
dismiss the
matter. It is trite law that /is
alibi
pendens
does not, if successfully invoked , put an end to the plaintiff’s
or applicant's case. Rather, it allows for the staying
of the later
matter pending the final determination of the earlier matter. See
Keyter NO v Van Der Muelen and Another
2014 (5) SA 215
(ECG) at
[10].
[11]
The
Respondent's point
in limine
of
res judicata
was
based on the assertion that the Appellant's claim was finally
adjudicated upon by Magistrate Moosa on the 19 May 2017 under
case
number 73/2017 in that the Appellant" "was a privy" of
the Municipality. The Court
a quo
erred in this regard. It is clear
from the papers filed of record in the Magistrate Court that the
Appellant was not a party in
the proceedings initiated under case
number 73/2017 at Ritavi Magistrate Court.
[12]
Mr
Mtebule, Counsel for the Appellant correctly submitted that the
defense of
res judicata
cannot
be successfully invoked against the Appellant in
casu.
He referred to the decided case of
Amalgamated Engineering Union v
Minister of Labour
1949 (3) SA 637
(A),
which
I find instructive.
Fagan AJA at page 651 had this to
say:
"......
two essential
principles of law that had to be borne in mind, viz (1) that
a
judgment cannot be pleaded
as res
judicata against someone
who was not
a
party to the suit in which it was given, and (2)
that the Court should not make an order that may prejudice the rights
of parties
not before it".
[13] The
Appellant and the Municipality are different persons in this case.
The only instance at which the
defence of
res judicata
may be
successfully raised against the Appellant is when the privity
(between the two) has been established. On this aspect Mr Mtebule,
with reference to the
Amalgamated Engineering Union case,
supra,
gave the following as categories of a party and privity:
a deceased and his heir, a
principal and his agent, a person under curatorship and his curator,
a pupil and his tutor, a creditor
and debtor in respect of a pledged
article if the debtor gave the article in pledge after losing a suit
in which a third party
claimed it, a purchaser and seller, if the
seller has won or lost the action.
Needless to say that the position
of the Appellant and the Municipality in
casu
falls short of
the above categories of privity.
[14] The
judgment of Magistrate Moosa did not deal with the merits of the
case. It dealt only with the issue
of jurisdiction as to the value of
the property. The relief sought by the Municipality in that case ( No
73/2017) was a restraining
order against the Respondent and the
removal of a fence. The Magistrate order was thus not final and
definitive of the rights of
the parties. Therefore a defence of
res
judicata
is inappropriate in the circumstances.
[15]
On
the issue of jurisdiction, The Respondent asserts that the Court a
quo
does
not have jurisdiction to adjudicate on this matter on the ground that
the value of the farm as a subject matter in this application
is
above R 500 000.00 which is above the jurisdictional limit of the
Magistrates' Court.
[16]
Section
29(1)(g) of the Magistrates' Court Act, No 32 of 1944 ("the
Act") provides:
"(1) Subject to the
provisions of this Act and the National Credit Act, 2005 (Act 34 of
2005),
a
court
in respect of causes of action, shall have jurisdiction in......
(g) actions other than those
already mentioned in this section, where the claim or the value of
the matter in dispute does not exceed
the amount
determined by the Minister from
time to time by notice in the Gazette".
Section 29(1)(g) determines
jurisdiction in respect of
actions
not
applications.
The
nature of proceedings in the present case is an application for an
interdict and not action proceedings where the value of the
property
in dispute is in issue. The Magistrate Court has jurisdiction to hear
interdict proceedings in terms of section 30 thereof.
[17]
In Le Roux v
Le Roux and Others 1980 (2) SA 632 (C) at 633A,
Williamson
J said that:
"To regard the market
value of the property
as
the sole test is
not only illogical but also lead to unreal and ridiculous situations.
Take for example the case of
a
dispute
concerning
a
servant's room on
the roof of
a
large block of
flats....It would be absurd to have regard to the value of the entire
block of flats when all that is in issue is
one room".
See
also
Botha v
Andrade and Others 2009 (1) SA 259 (SCA).
[18]
The
issue to be considered in determining if the claim or value of the
dispute falls within the jurisdictional limit determined
by the
Minister is not the market value of the farm in casu but the value of
the Respondent's occupation.
The onus is on the Respondent to
show that the value of his right to occupation of the farm exceeds
the monetary jurisdiction. His
mere assertion that it is so, does not
assist the Respondent.
Conclusion
[19]
The
Court a
quo
erred
in upholding the point
in limine
of
lis
alibi pendens
and
declining to pronounce an order in respect of the other points
in
limine,
namely
res
judicata
and jurisdiction as to
monetary value of the property in dispute. The appeal should
therefore succeed.
[20]
I
accordingly grant the following order:
20.1.
The appeal is upheld with costs.
20.2.
The order of the Court a
quo
is set aside and replaced with the
following order:
"The points
in limine
are
dismissed with costs".
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
I
agree
L G P LEDWABA
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
17 May 2019
Judgment
delivered on
:
23 May
2019
For
the Appellant
: DD
Mtebule
Instructed
by
: Mohlaba
& Moshoana Inc
For
the Respondent
: In
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