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[2021] ZASCA 123
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Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and Others (423/2020) [2021] ZASCA 123 (23 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case no:
423/2020
In the matter between:
MLULEKI MARTIN
CHITHI
FIRST APPELLANT
ERNEST SANDILE
CELE
SECOND APPELLANT
SINAMA AND ASSOCIATES
INC
THIRD APPELLANT
In
re:
LUHLWINI MCHUNU
COMMUNITY CLAIMANT
and
LAWRENCE
HANCOCK
FIRST
RESPONDENT
PETER
GOBLE
SECOND RESPONDENT
BUCKSTONE
CC
THIRD RESPONDENT
MICHAEL
ROBERTS
FOURTH RESPONDENT
HALLIWEL PROPERTY
TRUST
FIFTH RESPONDENT
ARTHER JAMES
ARATHOON
SIXTH RESPONDENT
AMANDA JANE CAMPBELL
SEVENTH REPONDENT
JOHN NORMAN
CAMPBELL
EIGHT RESPONDENT
WILLEM JAN
SCHORTEMEIJER
NINTH RESPONDENT
BETH SUSAN
SHAW
TENTH RESPONDENT
BRETT DAVID
SHAW
ELEVENTH REPONDENT
QONDISA CECIL
NGWENYA
TWELFTH RESPONDENT
GLR PROPS 005
CC
THIRTEENTH RESPONDENT
NEWINVEST
136 (PTY) LTD
FOURTEENTH RESPONDENT
MICHAEL
BENSON
FIFTEENTH RESPONDENT
VENGARITE (PTY)
LTD
SIXTEENTH RESPONDENT
ELPIS
TRUST
SEVENTEENTH RESPONDENT
MACKENZIE
TRUST
EIGHTEENTH RESPONDENT
SAPPI MANUFACTURING
(PTY) LTD
NINETEEN RESPONDENT
MONDI (PTY)
LTD
TWENTIETH RESPONDENT
CHURCH
OF THE PROVINCE OF
SOUTHERN
AFRICA
TWENTY-FIRST RESPONDENT
REGIONAL LAND CLAIMS
COMMISSIONER
FOR
KWAZULU-NATAL
TWENTY-SECOND RESPONDENT
THE MINISTER OF RURAL
DEVELOPMENT
AND LAND
REFORM
TWENTY-THIRD RESPONDENT
Neutral citation:
Chithi and Others; In re: Luhlwini
Mchunu Community v Hancock and Others
(Case
No. 423/2020)
[2021] ZASCA 123
(23 September 2021)
Coram:
PETSE AP, MOLEMELA, CARELSE and MOTHLE JJA and
MOLEFE AJA
Heard
:
17 August 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
website of the Supreme Court of Appeal and release to SAFLII. The
date and time for hand-down is deemed to be 10h00 on ##
September
2021.
Summary:
Civil
procedure – application for leave to appeal referred for oral
argument in terms of s 17(2)(f) of
Superior Courts Act 10 of 2013
–
costs order – whether the Land Claims Court’s order
depriving the applicants of their fees was warranted –
leave
granted and appeal upheld.
ORDER
On application for
Leave to appeal from
: The Land Claims
Court, Randburg, (Meer AJP sitting as court of first instance):
1 The application for leave to appeal is
granted.
2
The appeal is upheld.
3
Paragraph 5 of the order of the Land Claims Court is deleted.
4
There is no order as to the costs of the appeal.
JUDGMENT
Mothle JA: (Petse AP, Molemela, Carelse JJA and
Molefe AJA
concurring):
[1]
On 25 June 2020 two advocates and an
attorney, in their personal capacities as applicants, approached this
Court with an application
for leave to appeal a punitive costs order.
The costs order in issue deprived them of their fees as legal
representatives of the
plaintiffs. On 6 August 2020, this Court,
acting in terms of s 17(2)
(d)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act),
referred
the application for oral argument, and directed that the
parties must be prepared, if called upon to do so, to also address
the
Court on the merits. The attorney, cited as the third applicant,
withdrew from the application a few days before its hearing. No
reason was furnished for the withdrawal.
[2]
The impugned costs order was made on
16 March 2020 by Meer AJP sitting in the Land Claims Court (the LCC).
In dismissing the plaintiffs’
claim for restitution of land
rights with costs, the learned Acting Judge President also disallowed
in full, the applicants’
fees in the entire matter.
[3]
The facts are briefly that on 17
April 1998, Mr Jabulani Mchunu lodged a claim on behalf of the
Luhlwini Mchunu Community (the community)
in terms of the Restitution
of Land Rights Act 22 of 1994 (the Restitution Act). The Regional
Land Claims Commissioner, after investigating
the claim, could not
resolve the disputes with the landowners through mediation or
arbitration. On 5 May 2017, he referred the
claim to the LCC in terms
of s 14(2) of the Restitution Act. Thereafter the majority of
landowners issued notices to defend the
action, some disputing the
allegation that the plaintiffs were a community within the meaning of
s 2(1) (
d
)
of the Restitution Act.
[4]
Prior to the commencement of the trial on
25 November 2019, a
pre-trial conference, presided over by the learned Acting Judge
President, was held on 17 September 2019. During
the pre-trial
conference, the learned Acting Judge President requested the parties
to reflect on their stance, with reference to
the standard of proof
set by the Constitutional Court, on whether what the plaintiffs
sought to pursue was indeed a community claim.
She cautioned the
parties that should the allegation that the plaintiffs were a
community not pass muster, there would be costs
implications.
[5]
On the first day of the trial, the first applicant informed
the LCC
that the claimants intended to amend their pleadings. The purpose of
the proposed amendment was, in the main, to
introduce
an alternative claim as labour tenants
.
The application to amend was however
deferred to the end of the plaintiffs’ case. After hearing oral
evidence from the plaintiffs’
eight witnesses, the parties
addressed the court on the amendment application. In a written
judgment dated 20 February 2020, the
plaintiffs’ application to
amend was dismissed, the LCC having found it to be ‘
bad
in law, prejudicial to the Defendants, vague, embarrassing and
excipiable.’
[6]
Thereafter the learned Acting Judge President of her own accord
ordered a separate hearing on an issue of law in terms of Rule
57(1)
.
[1]
The issue of law raised was whether the plaintiffs
were a community as defined in the Act. After hearing the parties,
the LCC ruled
that the plaintiffs were not successful in proving that
they were a community. Their action was thus dismissed
with
costs. The order included a punitive costs order – in para
5 thereof - against their legal team, the applicants, couched in
the
following terms:
‘
The
fees of the Plaintiff’s legal team, Attorney Sinama and
Advocates Chithi and Cele, for this entire matter are disallowed
in
full. They are ordered to repay to the relevant entity that funded
them on behalf of the State, whatever fees that may have
already been
paid to them.’
[7]
On 27 May 2020, the LCC dismissed the applicants’ application
for leave to appeal. The applicants then turned to this Court with
the present application. The plaintiffs and defendants do not
feature
in this application. In particular, the defendants delivered notices
to abide the decision of this Court. I turn to the
Land Court’s
reasons for imposing the punitive costs order against the applicants.
[8]
In the main judgment and under the heading ‘
Were
the proceedings vexatious, frivolous and an abuse of the Court and
should Plaintiff’s legal teams’ fees be disallowed?’
the LCC, in providing reasons for the punitive
costs order, stated as follows (paras 24-26):
‘
At
the hearing I
mero
motu
asked Mr Chithi [first applicant] for submissions as to whether the
fees of the Plaintiff’s legal team comprising an attorney
and 2
advocates, wholly funded by the State, ought to be disallowed in the
event of my finding against the Plaintiff as I have.
I raised this,
given the persistence and pursuit on behalf of the Plaintiff with a
community claim when there was no shred of evidence
to prove the
legally established acid test post-
Goedgelegen
that the Plaintiff derived its use and possession of the land from
common rules.
I
raised this especially given that Mr Chithi, leader of the
plaintiff’s legal team, had appeared for the Plaintiff in
Elambini
[2]
supra
which,
as aforementioned, involved a community claim for restitution, as in
the instant matter. In
Elambini
,
Mr Chithi and the plaintiff’s legal team unsuccessfully argued,
contrary to
Goedgelegen
[3]
,
that persons
who were at best labour tenants or farm workers on privately owned
land constituted a community as defined in the Act.
In
Elambin
i
at paragraph 149 it was stated:
“
it
is disquieting that the plaintiff, who was legally represented, and
significantly at the state’s expense, throughout these
proceedings, could have pursued and persisted with a community claim
without adducing a shred of evidence to prove the legally
established
acid test post
Goedgelegen
,
that they derived their possession and use of the land from common
rules”
Post-
Elambini
at the very least Mr Chithi was thus well-versed with the
requirements for instituting and succeeding with a community claim.
This notwithstanding, he persisted with this claim as a community
claim.
I
raised the fees of the Plaintiff’s legal team also, given that
during a telephonic pre-trial conference I specifically cautioned
the
Plaintiff’s legal team to consider whether in light of the
established case law, the claim as a community on the part
of the
Plaintiff could pass muster, and cautioned them that there could be
cost implications if it did not.’ (Own footnotes.)
[9]
The applicants contend, first, in regard to the application
for leave
to appeal, that it should be granted, in that there are reasonable
prospects of success. Second, in respect of the envisaged
appeal,
that the order of the LCC should be set aside on procedural grounds.
Third, on substantive grounds, that the conduct of
the applicants in
the trial was not vexatious, frivolous and an abuse of court
processes. I proceed to deal with these grounds
in that order.
[10]
The threshold for an application for leave to appeal is set out in
s
17(1)
of the
Superior Courts Act, which
provides that leave to appeal
may only be given if the judge or judges are of the opinion that the
appeal would have a reasonable
prospect of success.
[4]
The applicants contend that this application
concerned an order directed only against them and not the plaintiffs
in the action.
Consequently, they asserted that the application is
capable of adjudication, independently of the merits of the action.
[11]
In support of their application, the applicants relied, amongst
others,
on procedural grounds, that the LCC in adjudicating the
matter, breached the principles of procedural fairness that are
fundamental
to the rule of law. As it turns out, and for the reasons
that follow, this contention has merit. I am thus of the view that
the
application for leave to appeal should be granted and the appeal
itself determined.
[12]
It will be recalled that the learned Acting Judge President raised
the
question of the costs with the first applicant during the debate
in relation to the
Rule 57
issue of law. She summarily raised the
issue of the punitive costs while the first applicant was addressing
the court. The first
applicant was directed to show cause why he, the
second and third applicants, as plaintiffs’ legal team, should
not be deprived
of their fees. The exchange between the first
applicant and the learned Acting Judge President at that point,
demonstrates that
the issue was raised in a manner that the first
applicant felt somewhat obligated to respond there and then. Thus,
neither the
applicants nor the other parties participating in the
trial were afforded adequate opportunity to make meaningful, or any
submissions
on the subject.
[13]
As for the second applicant and the attorney, they were not afforded
an opportunity to have their say in relation to the looming
deprivation of their fees that the LCC had threatened. In its
judgment
refusing leave to appeal, the LCC summarily dismissed their
complaint in this regard, on the basis that they were present in
court
and that had they requested to address the court – which
they did not do – they would readily have been allowed to do
so. This, however, manifests a misconception of the essence of their
complaint. When the LCC was minded to issue an order in the
terms
encapsulated in para 5 of its order it had a duty to invite and then
afford the second and erstwhile third applicants a reasonable
opportunity, as of right, to dissuade it from making the sort of
order it had contemplated. But it did not. Therein lies the rub.
[14] The
principle that the courts should not grant adverse court orders,
without providing the affected parties an opportunity to be heard, is
trite and sacrosanct. In this regard what the Constitutional
Court
said in
De Beer NO v North-Central Local Council and South-Central
Local Council
[2001] ZACC 9
;
2001 (11) BCLR 1109
(CC);
2002 (1) SA 429
(CC) is
instructive. The Court said (para 11):
‘
The
right to a fair hearing before a court lies in the heart of the rule
of law. A fair hearing before a court as a prerequisite
to an order
being made against anyone is fundamental to a just and credible legal
order . . . It is a crucial aspect of the rule
of law that court
orders should not be made without affording the other side a
reasonable opportunity to state their case.’
[15] It
therefore goes without saying that the courts must do more to avoid
summarily inquiring into the conduct of a legal practitioner and
thereafter imposing a sanction. In
Singh and Others v North
Central and South Central Local Councils and Others,
[1999] 1 All
SA 350
(LCC), the LCC stated as follows (para 128):
‘
That
however is not necessarily the end of the matter in relation to the
conduct of the applicants’ attorneys and counsel
and its impact
on the costs order.
The
applicants and their attorneys allege that an agreement has been
reached with the Chief Land Claims Commissioner to provide
legal aid
for these proceedings in terms of
section 29(4)
of the [Restitution]
Act. This is disputed by the third respondent.
It
would appear that that dispute may have to be resolved in separate
legal proceedings. It certainly does not fall to be determined
here
.
For purposes of the costs order in this matter, I will assume,
without in any way seeking to decide the issue, that there is an
agreement or decision to provide legal aid for these proceedings.
Where a litigant is funded by State legal aid, a court may none
the
less order that an attorney may not recover costs from the State’s
legal aid system. Section 29(4) represents part of
the State’s
legal aid system.
This
may be a case where such an order should be made.
However
the applicants, their attorneys and counsel have not had an
opportunity of being heard in this respect and no such order
was
sought at the hearing. I will therefore provide in the order that
such an opportunity be afforded before this aspect is finally
dealt
with.
’
(Emphasis added.)
[16] Further,
in holding that the conduct of the applicants was vexatious,
frivolous and an abuse of court processes, the LCC made reference to
the provisions of the Vexatious Proceedings Act 3 of 1956
(the Act).
The right to be heard prior to an order being made in vexatious
proceedings is entrenched in the Act itself. The relevant
provision
is s 2(1) (b), which provides:
‘
2(1)(b)
If, on an application made by any person against whom legal
proceedings have been instituted by
any other person or who has
reason to believe that the institution of legal proceedings against
him is contemplated by any other
person, the court is satisfied that
the said person has persistently and without any reasonable ground
instituted legal proceedings
in any court or in any inferior court,
whether against the same person or against different persons, the
court may
,
after hearing that other person or giving him an opportunity of being
heard,
order
that no legal proceedings shall be instituted by him against any
person in any court or any inferior court without leave of
that
court, or any judge thereof, or that inferior court, as the case may
be, and such leave shall not be granted unless the court
or judge or
the inferior court, as the case may be, is satisfied that the
proceedings are not an abuse of the process of the court
and that
there is a
prima
facie
ground for the proceedings.’
(Emphasis
added.)
[17]
Accordingly, I conclude that the learned Acting Judge President erred
in not paying due regard to these statutory prescripts. She failed to
separate the inquiry concerning costs against the applicants
from the
trial, and to provide an opportunity for the applicants to be heard.
This breach of procedure, on its own, and for reasons
enunciated
above, vitiates the LCC’s punitive costs order against the
applicants. On this ground alone, the punitive costs
order falls to
be set aside.
[18] Having so
concluded, there is thus no need to deal in detail with the
substantive grounds of appeal, save to mention two issues. First, the
LCC characterised the first applicant’s conduct in
the trial as
being persistently in pursuit of a vexatious claim. This view is
expressed in paragraph 29 of its judgment as follows:
‘
The
Vexatious Proceedings Act 3 of 1956 authorises a court to prohibit
legal proceedings by any person who
has
persistently and without any reasonable ground instituted legal
proceedings.
For the purposes of this Act, the element of persistency is a
necessary one.
Heugh
and others v Gubb
1980 (1) SA 699
(C) at 702F. The litigation in the present case fits
the persistency criteria, given
Mr
Chithi’s persistence
with a community claim notwithstanding his lack of success with the
same nature of evidence in
Elambini
.’
(Emphasis added.)
[19]
On a proper reading of the record placed before this Court, there is
no evidence that supports the conclusion reached by the LCC that the
litigation in the present case fits ‘the persistency’
criteria. The first applicant disputed the LCC’s finding that
he initiated the proceedings in
Elambini
. He contended that he
had joined the proceedings in
Elambini
as a junior member of
the plaintiff’s substitute legal team
,
after the
plaintiffs’ case had been prosecuted. Therefore, having joined
the proceedings at that stage, it cannot be said
that he instituted
the plaintiffs’ case in
Elambini
. Similarly, included in
the LCC’s documents of the present case and filed as Bundle A,
is the plaintiffs’ statement
of claim dated 28 February 2018,
signed by T Kadungure as plaintiff’s counsel. A statement of
claim initiates proceedings
for the claimants in the LCC, and not the
referral in terms of s 14 of the Restitution Act. The first
applicant appears to
have joined the proceedings after the statement
of claim was filed in 2018 and sometime before the pre-trial
conference. Thus,
neither he nor the second applicant, could have
initiated the proceedings in this case.
[20]
The second issue concerns the caution the learned Acting Judge
President
made to the parties during the pre-trial conference. She
cautioned that there could be costs implications. Although paragraph
4
of the minutes of the pre-trial conference
[5]
does not reflect the learned Acting Judge
President having cautioned the applicants, the first applicant
nevertheless confirms,
in paragraph 12 of the founding affidavit
before this Court, that such a warning was made. However, it is
apparent from the record
that the learned Acting Judge President
cautioned the applicants even before the LCC heard oral evidence from
the plaintiffs’
witnesses at the trial. This is borne out by
what is contained in paragraph 7 of the minutes that, at that stage,
the plaintiffs
were yet to file their expert’s report.
[21] Curiously,
the learned Acting Judge President did not indicate the reasons
that
moved her to issue the caution even before the plaintiffs presented
oral evidence, in particular that of the expert witnesses.
The
Constitutional Court in
Helen Suzman Foundation v President of the
Republic of South Africa and Others; Glenister v President of the
Republic of South Africa
and Others
[2014] ZACC 32
;
2015 (1) BCLR
1
(CC), cautioned, in paragraph 36, as follows:
‘
The
Court should ordinarily be very loath to grant a punitive cost order
in a case like this. This is constitutional litigation
and parties
should never be forced to be too careful to assert their
constitutional rights through a court process, for fear of
a cost
order.’
[6]
Although
these remarks were made in a different context, they are equally
apposite in this case as the plaintiffs were asserting
their
constitutional right to land restitution.
[22] The first
applicant avers that in a consultation with the plaintiffs,
held
after the caution, the plaintiffs instructed the legal team to
present oral evidence in court, including the expert evidence
of Dr V
Khumalo and Mr Xolani Xaba, the land surveyor to establish their
entitlement to the relief sought. Both experts appeared
to support
the plaintiffs’ contention that they were a community. There is
no evidence to suggest that the applicants acted
recklessly in
presenting the plaintiffs’ case in the manner they did. In
Multi Links Telecommunications Ltd v Africa Prepaid Services
Nigeria Ltd
2014 (3) SA (GP), the court remarked (para 34):
‘
.
. . [A]ttorneys and counsel are expected to pursue their clients’
rights and interest fearlessly and vigorously without
undue regard
for their personal convenience. In that context they ought not to be
intimidated by their opponent or even, I may
add, by the Court. Legal
practitioners must present their case fearlessly and vigorously, but
always within the context of set
ethical rules that pertain to them.
... ’
[23]
In the result I make the following order:
1 The application for leave to appeal is
granted.
2
The appeal is upheld.
3
Paragraph 5 of the order of the Land Claims Court is deleted.
4
There is no order as to the costs of the appeal.
SP MOTHLE
JUDGE OF APPEAL
APPEARANCES:
For appellants:
T V Norman SC (with her C M Nqala and K Shazi)
Instructed
by:
Gordon Zungu Attorneys, Durban
Maduba Attorneys, Bloemfontein
For the 1
st
to
23
rd
Respondents: No appearance
[1]
Rule 57(1)
(c)
of the Land Claims Court allows the court, on its own accord, to
order that a separate hearing be held on an issue of law which
may
conveniently be decided separately from any other issue.
[2]
Elambini Community v Minister of Rural
Development and Land Reform and Others
[2018]
ZALCC 11.
[3]
Department of Land Affairs and Others v
Goedgelegen Tropical Fruits (Pty) Ltd
2007 (6) SA 199 (CC).
[4]
Minister of Justice and Constitutional
Development and Others v Southern African Litigation Centre
[2016] ZASCA 17; 2016 (3) SA 317 (SCA).
[5]
The minutes of the pre-trial conference were
signed by the learned Acting Judge President.
[6]
This view is reiterated by the same court in
Lawyers for Human Rights v Minister in
the Presidency and others
[2016] ZACC
45
;
2017 (1) SA 645
(CC) para 17.