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[2019] ZALMPPHC 30
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Bakoni Platinum Limited v Moropane (HCA02/2017) [2019] ZALMPPHC 30 (7 June 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: HCA02/2017
IN
THE MATTER BETWEEN:
BAKONI
PLATINUM
LIMITED
APPELLANT
AND
ABRAM
MOROPANE
RESPONDENT
IN
RE:
BAKONI
PLATINUM LIMITED
APPLICANT
AND
ABRAM
MOROPANE
PLAINTIFF
AND
BAKONI
PLATINUM LIMITED
DEFENDANT
JUDGMENT
MULLER
J:
[1] This is a
consolidated action in which the appellant, a mining company, is the
defendant. There are 154 actions which were instituted
against the
appellant. These actions were consolidated by agreement into one
action although the claims of each of the plaintiffs
are separate
claims. It must be made clear at the outset that although there are
154 plaintiffs, this appeal concerns only the
plaintiffs under case
no 609/2014; 827/2014 and 799/2014, collectively referred to in this
judgment, as the respondent.
[2] The action had an
unfortunate stop-start history, and not wholly without cause. A brief
background of the developments leading
up to the appeal is necessary.
[3]
The respondent in the appeal before us, instituted action in the
magistrate court at Praktiseer. The cause of action is premised
on
both a written agreement and a written amendment to the said
agreement
[1]
.
[4] The appellant, in
defending the action, initially denied the existence of the
agreement, but pleaded, in the alternative, that
the agreement was
partly written and partly oral. As a further alternative, the
appellant pleaded that the agreement contained
a tacit term. The
appellant, in addition, also instituted a counter-claim based on
enrichment.
[5] The appellant on 1
September 2013 applied to amend paragraph 2 of its counter-claim. The
amendment was granted on 28 November
2014.
[6] The consolidated
action commenced before magistrate Malebana on the pleadings, and the
amended counter-claim. Evidence was called
at the trial. The
magistrate delivered a written judgment dated 15 June 2016 named
“JUDGMENT ON ABSOLUTION FROM THE INSTANCE
AND/OR DISMISSAL.”
Nothing turns on this judgment but it is of importance in the
sequence of the further developments in
the action.
[7] After the
commencement of the evidence and the judgment referred to above the
appellant changed tack and applied on 27 October
2016 for an
amendment of its plea and counter claim in respect of cases 709/14,
799/14, 609/2014 and 827/2014. It then sought an
amendment to rely on
the very agreements upon which the respondent rely in their
particulars of claim the conclusion of which the
appellant originally
denied (in respect of case 609/2014 and 827/2014) and, alternatively,
the appellant sought to rely on a tacit
term.
[8] In respect of case
799/2014, the appellant still persisted with its denial that it
concluded a contract with that plaintiff.
It sought an amendment to
introduce an alternative defence in respect of the interpretation of
the contract and the tacit term
as in the other two actions.
[9]
The respondent objected to the proposed amendment. A substantive
application by the appellant followed which was dismissed by
the said
magistrate Malebana on 13 March 2017.
[2]
A notice to appeal was served against this judgment.
[10]
A party who desires to amend its pleading is obliged, if the
amendment is opposed, to do so by way of notice supported by
affidavit.
[3]
Even though interlocutory, an order refusing such an application on
the merits is final in effect and definitive of the issues.
The order
is not susceptible to be freely altered rescinded or amended which
resulted in
magistrate
Malebana becoming
functus
officio
in relation to the first amendment. His authority over the
subject-matter has ceased.
[4]
The appellant thereafter duly filed a notice of appeal against that
order. It was said in
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
[5]
with
reference to the finality of preparatory or procedural interlocutory
orders which include applications for amendments that:
“
From
the judgments of Wessels and Curlewis JJ.A, the principle emerges
that a preparatory or procedural order is a simple interlocutory
order and therefore not appealable unless it is such as to “dispose
of any issue or any portion of the issue in the main
action or suit”
or, which amounts, I think, to the same thing, unless it “irreparably
anticipates or precludes some
of the relief which would or might be
given at the hearing”.
[13]
On 25 April 2017 an application was launched for the recusal of
magistrate Malebana.
[6]
The recusal application was successful.
[14] The appellant
subsequently, and as a result of the recusal of magistrate Malebana,
served a notice of withdrawal of the appeal
noted against his order
of 13 March 2017.
[15]
The appellant then, after the recusal of magistrate Malebana, sought
to amend its plea on exactly the same grounds as previously.
The
respondent again objected to the proposed amendment. The appellant
then launched a substantive application to amend its plea
and
counter-claim on substantially the same grounds as in the previous
application which had been dismissed. Magistrate Tubatse
who was
seized with the application for the second amendment dismissed it
on16 April 2018.
[7]
[16] It is not disputed
that the order of magistrate Tubatse, like the order of magistrate
Malebana, is subject to an appeal. An
appeal was duly noted by the
appellant against the order of magistrate Tubatse which is the
subject matter of the appeal before
us.
[17] After the appeal had
been argued before us we requested the parties to file supplementary
heads of argument to deal pertinently
with the question whether the
order of magistrate Malebana dated 13 March 2017 is not
res
judicata
. They have now done so.
[18] Mr Hollander
appearing on behalf of the appellant advanced mainly three arguments
in his supplementary heads of argument. The
first is that as a result
of the recusal of magistrate Malebana the order of 13 March 2017 has
fallen away and became a nullity.
The second is that the respondent
did not raise a defence of
res judicata
, in the proceedings
before magistrate Tubatse. And thirdly, flowing from the previous
argument, it is contended that this court,
as a result, is precluded
from
mero moto
raising the
exceptio res judicatae.
[19]
At the time the first amendment was sought the pleadings had already
been closed.
[8]
Litis
contestatio
had been established, as far as the issues as defined by the
pleadings are concerned.
[9]
The rights of the parties were frozen. It will also be recalled that
when the trial commenced and proceeded with the pleadings
remained as
they are at present after the dismissal of the first amendment.
[20] Subsequent to the
dismissal of the first amendment and prior to the resumption of the
part-heard trial, the appellant launched
a substantive application
for the recusal of magistrate Malebana. That application was granted
on 25 April 2017. That order, regrettably,
does not form part of the
record, but Mr Hollander has stated in his heads of argument that
magistrate Malebana issued an order
to the effect that the pending
actions (as consolidated) be heard
de novo
before another
magistrate.
[21]
A magistrate has neither the authority, as a creature of statute,
[10]
to order that the trial start
de
novo
before another magistrate, nor is a magistrate able to declare that a
final order issued by him/her dismissing an interlocutory
application
for an amendment, is a nullity. In
S
v Richter
[11]
it was held:
“
There
is no statutory authority for a magistrate to order that the trial
should be instituted
de
novo
before another court. Accordingly when such a declaration is
required, the matter should be referred to a High Court for the
setting
aside of the proceedings and a direction that it should
proceed
de
novo
.
(See
S
v Mbothoma en ‘n Ander
1978 (2) SA 530
(O) at 533;
S
v Fourie
(
supra
);
but cf;
S
v Sass en Andere
1986
(2) SA 146
(NC).) The only power that is vested upon a magistrate’s
court to order that proceedings commence
de
novo
are those contained in s 93
ter
(5)
of the
Magistrates’ Courts Act 32 of 1944
which provides that
the provisions of s 147 of the Criminal Procedure Act shall
mutatis
mutandis
apply where an assessor dies or becomes incapable of continuing to
act as assessor. That section does not apply to the facts of
the
present case”
[22]
However, the position when a magistrate recused himself after
evidence had been adduced in a trial (as in this instance) is
akin to
a situation where the magistrate has died or has become incapacitated
to continue with a part-heard case. It constitutes
an absolute
supervening impossibility which nullifies the part-heard proceedings
before him.
[12]
It is unnecessary, in such a situation, to obtain an order from the
High Court to set aside the part-heard proceedings.
[23]
A similar approach was adopted in
South
African Motor Acceptance Corporation (Edms) Bpk v Oberholzer
[13]
where it was held that a magistrate, when he/she recused
himself/herself, for whatever reason should postpone the trial:
“’
In such a
case he should not dismiss the summons but postpone the hearing of
the case until another magistrate can be obtained,
because it is not
the fault of either party that the magistrate
should
have an interest in any particular case. (
Stutterheim
Divisional Council v Giddy
,
6 EDC 99)
’
Hierdie benadering
behoort gevolg te word wat ookal die
justa causa recusationis.
”
[24] I agree. With the
recusal of the magistrate, the part-heard proceedings are aborted and
the slate wiped clean. Evidence must
be adduced
de novo
,
before another presiding officer on the pleadings as they were at the
time of his recusal.
[25]
The interlocutory application in terms whereof a final order had been
granted which is appealable cannot be nullified by the
subsequent
recusal of the presiding magistrate from the main action. It will be
tantamount to a procedure, other than an appeal
or review, in terms
whereof a final interlocutory procedural order, is set aside by the
magistrate who is
functus
officio
.
Such a result cannot be countenanced. That order is final and was
appealable,
[14]
which, as such, may only be set aside by invoking the prescribed
process of appeal or review.
[15]
[26] The argument by
counsel for the appellant that the subsequent recusal of magistrate
Malebana nullified the order dismissing
the first amendment is
untenable and is rejected.
[27] That brings me to
the next issue which was raised by the court whether the principles
relating to the
exceptio res judicatae
are applicable.
[28]
The
exceptio
res
judicatae
which has its roots in the common law is a defence based on
considerations of public policy and good faith which require that a
defendant should not be twice harassed upon the same cause.
[16]
It is raised if the same dispute has previously been finally decided
upon in a suit between the same parties.
[17]
In
African
Farms & Townships v Cape Town Municipality
[18]
it was held:
“
In
regard to the requirement that the ground of the demand must be the
same, the authorities refer to the
causa
petendi
or
origo
petitionis.
According
to Voet, 44.2.4, it is not the form of action which determines the
sameness of the
causa
petendi
,
but the identity of the question which is again raised or set in
motion….The rule appears to be that where a court has
come to
a decision on the merits of a question in issue, that question, at
any rate as a
causa
petendi
of the same thing between the same parties, cannot be resuscitated in
subsequent proceedings.”
[29]
It has been held that the
exceptio
must be pleaded and proved by the party raising it.
[19]
The reason for the
exceptio
to be pleaded is that the authority of
res
judicata
induces a presumption, which is premised on public policy, that the
judgment upon a claim submitted to a court is correct and excludes
proof to the contrary.
[20]
[30] It is important to
note that the appellant, in the same pending action, resuscitated its
previous application (the first amendment)
which was dismissed on the
merits, on exactly the same grounds. Both the evidence and pleadings
in the first application together
with the written judgment of
magistrate Malebana (the first amendment) as well as the evidence and
the pleadings in the second
application together with that judgment
(the second amendment) are part of the papers before us.
[31]
In
Loesch
v Crowther
(2)
[21]
the plaintiff applied to amend his replication before the
Judge-President. The amendment was granted after several objections
which were raised and dismissed, which included an argument that an
application to strike out should be allowed. Thereafter an
application to strike out was brought before another Judge. The
application was dismissed on the basis that:
“
It
is futile, therefore, to contend that the JUDGE-PRESIDENT had to
decide an application for leave to amend, whereas I am asked
to
strike out pleadings. In both disputes the identical questions of
procedural law and fact were raised, and crisply raised. The
JUDGE-PRESIDENT has held that the replication tendered was a good
one. I am not prepared to entertain what is virtually an appeal
against his decision.”
[32] It seems that the
court rejected the application for two reasons. The first is that the
decision by the Judge-President was
res judicata
and the
second was that the application was an abuse of process.
[33]
In
Blaikie-Johnstone
v P Hollingworth (Pty) Ltd and Others
[22]
the court raised the question of
res
judicata
mero
moto
in
an application for default judgment for the balance of an amount
claimed in the summons after judgment on confession was granted
for
an amount less than the claimed amount. The court, had knowledge of
the facts of the case, and was not prepared to grant default
judgment
on the papers because the judgment would lead to an injustice if the
defendants were deprived of the opportunity to raise
such a defence.
The court considered it to be the interests of justice to order the
plaintiff to serve the application for default
judgment on the
defendants. It stated:
“
There is no
question that of the defendants pleading the defence of
res
judicata
in
this case for they are in default of delivery of notice of intention
to defend. In any event the defence has only arisen as a
result of
the judgment to which they consented. Because it was granted in this
very action the Court has knowledge of the previous
judgment, and
knows that if the plaintiff were to institute a fresh action for the
recovery of the balance of its claim it could,
and probably would, be
met by a plea of res judicata. If the present application were to be
granted that situation would be circumvented
and the defendants would
have been deprived of the right to raise a defence based upon a rule
which is recognised by the Appellate
Division as being part of the
very foundation of our law. (See
Custom
Credit Corporation (Pty) Ltd v Shembe, supra, loc cit.).
In my view the Court should not countenance such a procedure, and I
therefore make no order on this application. This leaves it
open to
the plaintiff, if so advised to renew the application after giving
proper notice to the defendants.”
[34]
In
Boland
Bank Konstruksie Maatskappy (Edms) Bpk v Petlen Properties (Edms) Bpk
(2)
[23]
the court was called upon in an application to grant condonation for
the failure to comply with the rules of court. The respondent
did not
file any opposing affidavits but raised the defence
res
judicata
for the first time during argument. The applicant objected to the
failure by the respondent to raise the defence properly on the
papers. The court in an
obiter
dictum
mentioned that:
“
Mnr Hodes, namens
respondent, het dit toegegee maar die Hof genooi om
mero
moto
op
te tree en die beswaar van
res
judicata
te opper. Onder die omstandighede van die saak meen ek dat selfs al
was die beswaar regtens gegrond, dit nie in belang van die
reg sal
wees nie dat die Hof die beswaar
mero
moto
opper nie.
[24]
[35]
The court rejected the invitation by the respondent for the court to
raise the defence
mero
moto
but nevertheless allowed the respondent to raise and argue the
objection of
res
judicata
despite the objection by the applicant. The court, it seems to me,
allowed the defence to be raised without any pleadings, in the
interests of justice, and then expressly rejected the defence.
[25]
[36]
In
Botha
v Botha
[26]
the applicant applied for the sequestration of his son. A provisional
order was granted but was discharged on the return date by
Daffue J.
Thereafter, the applicant launched another sequestration application
before another Judge on virtually the same facts
relied upon in the
first application. The court raised the question of
res
judicata mero moto
on
the basis that it was in the interests of justice, on the facts
placed before the court, not to allow a litigant to continue
with
litigation which had been adjudicated upon previously. It is unclear
from the judgment how the facts in relation to the first
application
came to the knowledge of the learned Judge in the second application.
[37]
The courts, over the years, have also extended the ambit of the
exceptio
res judicatae
by relaxation of the common law requirements in appropriate
circumstances where equity and fairness so demanded.
[27]
[38]
It is apparent that a court is not precluded from raising a defence
of res judicata
mero moto,
if equity or fairness so requires
in the absence of the required pleadings. It is also clear from the
judgment in
Boland Bank Konstruksie Maatskappy (Edms) Bpk v Petlen
Properties (Edms) Bpk
(2)
supra
that a departure from the
general rule is permissible when public policy considerations require
a court to raise the defence
mero moto
in the interests of
justice to prevent a repitition of the same issue in subsequent
proceedings:
“
Die benadering van
die geleerde skrywers is na my mening regtens juis want aan die een
kant moet die Hof belet dat dieselfde geskil
by hehaling voor die Hof
kom; aan die ander kant, waar die wesenlike geskil nog nie deur die
Hof beslis is nie moet niks gedoen
word wat dit belet nie.”
[28]
[39]
It is as much in the interests of justice to prevent the repetition
of disputes on the same subject which have been finally
disposed of,
on the one hand, as it is to prevent an abuse of process, on the
other, where a court is seized with all the relevant
evidence to make
a decision. A court should, however, only exercised its discretion to
mero
moto
raise
the defence of
res
judicata,
if the undisputed evidence of the pleadings and the judgment are
properly before it for a proper determination to be made.
[29]
I am unable to think of any prejudice that any of the parties might
suffer in such a situation.
[40] It is common cause,
and counsel for the appellant did not advance any argument to the
contrary, that the parties are the same
and that subject matter in
relation to both first and second amendments are similar and that
both the first amendments were dismissed
on the merits. The
correctness of the final order of magistrate Malebana is presumed.
[41] I have come to the
conclusion that this court is entitled to raise the
exceptio res
judicatae
in the present appeal
mero moto
in the interests
of justice. Having considered the facts I am of the view that the
order of magistrate Malebana has not been nullified
by his recusal,
is final and is
res judicata.
[42] I wish to add,
before I conclude, that the application for the second amendment
before magistrate Tubatse is an abuse of process.
In the result, it
follows, therefore, that the appeal falls to be dismissed.
ORDER
The appeal is dismissed
with costs.
G.C
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I agree
MF
KGANYAGO
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
APPEARANCES
For the Appellant:
Shepstone & Wylie Attorneys
c/o Pratt Luyt & De
Lange Attorneys
Represented by
Adv: L
Hollander
For the Respondents:
Molefe Attorneys
Represented by
Adv.
S.J Phaladi
Date heard: 10 May 2019
Date of judgment: 07 June
2019
[1]
Hereinafter referred to as ‘the
agreement’.
[2]
The first amendment.
[3]
Rule 55A(1) read
with 55A(4).
[4]
West Rand
Estates Ltd v New Zealand Insurance Co Ltd
1926
AD 173
at 176,187 and 192;
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA 772
(CC) 780C-F;
Adonis
v Additional Magistrate, Bellville
2007 (2) SA 147
(C) 153I-154B.
[5]
1948 (1) SA 836
(A) 870.
[6]
Magistrate Malebana subsequently
passed away.
[7]
The second amendment.
[8]
Rule 21A.
[9]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) par 15.
[10]
SANTAM
Insurance Co Ltd v Liebenberg NO and Another
1976
(4) SA 312
(N) 323H.
[11]
1998 (1) SACR 311
(C) 313b-d.
[12]
S v Stoffels and 11 Similar Cases
2004 (1) SACR 176
(C) par 4.
[13]
1974 (4) SA 808
(T) 814B-C.
[14]
South British
Insurance Co Ltd v Glisson
1963
(1) SA 576
(D & CLD) 578D-E.
[15]
An appeal was
noted but withdrawn. Different procedures are permissible to rescind
final orders in terms of section 36 and rule
49 of the Magistrates’
Court Act 32 of 1944 the applicability of which are irrelevant to
the present appeal.
[16]
Custom Credit Corporation (Pty)
Ltd v Shembe
1972 (3) SA
462
(A) 472A-D.
[17]
Exceptio rei iudicatae vel litis
finitae.
[18]
1963 (2) SA 555
(A) 562A-D.
[19]
.
Lowry v Steedman
1914
AD 532
at 539.
[20]
Bertram v Wood
(1893) 120 SC 177
at180.
[21]
1947 (3) SA 251 (OFS).
[22]
1974 (3) SA 392
(N) 395D-G.
[23]
1974 (4) 980 (K).
[24]
982G.
[25]
982E.
[26]
FB (unreported Case no 2406/17 dated
15 June 2017).
[27]
Smit v Porritt
and Others
2008
(6) SA 303
(SCA) par 10.
[28]
982B-C.
[29]
Pretorius v
Barkley East Divisional Council
1914
AD 407
at 409;
Van
Niewenhuizen v Richards
1959 (2) SA 686
(T) 687A, 687F.