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[2018] ZAGPJHC 536
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Tsotetsi NO v Radebe and Another (A3084/16) [2018] ZAGPJHC 536 (4 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Appeal
case no: A3084/16
In
the matter between:
TIRO
TSOTETSI
N.O.
Appellant
and
DOREEN
BUSISIWE RADEBE
1
ST
Respondent
EKURHULENI
METRO MUNICIPALITY
2
ND
Respondent
Case
Summary: Exceptio rei judicatae
-
a respondent who has been absolved from the instance cannot raise the
exceptio
rei judicatae
if sued again on the same cause of action.
Lis
pendens
-
Courts are not entitled to raise the issue of
lis
pendens
unless the defendant or respondent pleads it specifically - an order
absolving a defendant or respondent from the instance concludes
and
disposes of the proceedings, if not set aside – such
proceedings do not remain pending and
lis
pendens
finds
no application.
JUDGMENT
MEYER
J (KAIRINOS AJ concurring)
[1]
This is an appeal against an order of the Palm Ridge Magistrates’
Court (Magistrate SM Masango) on 22 July 2016, in an
application
brought by the appellant, Mr Tiro Tsotetsi, in his capacity as
executor of the estate of the late Ms Roster Nozipho
Nkwanyane, who
died on 9 January 2009 (the deceased), against the respondent, Ms
Doreen Busisiwe Radebe, and the Ekurhuleni Metro
Municipality
(Ekurhuleni). No relief was claimed against Ekurhuleni.
Mr Tsotetsi sought the eviction of Ms Radebe from
an immovable
property situated in Katlehong, which property is registered in the
name of the deceased. Ms Radebe only raised
the
exceptio res
judicatae
as a point
in limine
in her answering
affidavit. The court
a quo
upheld the point
in limine
with costs, although it appears that it rather upheld a defence of
lis pendens
.
[2]
Mr Verral Desmond Tsotetsi (snr) is the father of Mr Tsotetsi, the
appellant. The deceased, prior to her death, was his
common law
wife. Two children were born from their union, Mr Tsotetsi
being one. On 23 September 2009, Mr Tsotetsi
(snr) was
appointed by the Master of the High Court as the executor in the
estate of the deceased. It was ascertained that
the deceased
was the registered owner of the property in question and that Ms
Radebe was residing in the property. Unbeknown
to Mr Tsotetsi
(snr), or the two children born from their union, the property was
awarded to the deceased as a state-subsidised
dwelling, commonly
referred to as an RDP house. Ms Radebe claimed to have
purchased the property from the deceased, although
registration and
transfer of the property into her name had not been effected by the
time of the deceased’s death.
The issues surrounding Ms
Radebe’s claim to be in occupation of the property are not
presently relevant. Ultimately,
on 26 March 2014, a written
agreement of ‘lease-to-buy’ was concluded between Mr
Tsotetsi (snr) in his official capacity
and Ms Radebe, in terms
whereof the property was leased to Ms Radebe for a fixed period,
commencing on 1 February 2014 until 31
January 2015. Clause 5.3
of the lease-to-buy agreement provided thus:
‘
The lessee
must have bought the house before the expiry of the lease period at
the purchase price of R300 000.00 failing which
the lessor will
sell same to a willing buyer at a higher price without any hindrances
from the lessee.
Ms
Radebe did not purchase the property prior to the expiration of the
lease.
[3]
On 8 April 2015, Mr Tsotetsi (snr), in his capacity as executor of
the deceased estate, instituted an application under case
no. 2786/15
in the Palm Ridge Magistrates’ Court against Ms Radebe and
Ekurhuleni in which he sought the eviction of Ms Radebe
from the
property. Similarly, no relief was claimed against Ekurhuleni.
Ms Radebe opposed the application and filed
an answering affidavit.
A replying affidavit followed, and the matter was argued before the
learned magistrate, Mr ET Mosese,
who referred the matter to trial.
Mr Tsotetsi (snr) testified and he called Mr Tsotetsi and his sibling
to testify regarding
his nomination as executor of the deceased
estate - the regularity of his appointment being placed in issue by
Ms Radebe.
Once the case for the deceased estate had been
closed, Ms Radebe applied for absolution from the instance. On
30 November
2015, the learned magistrate Mosese absolved Ms Radebe
from the instance, with costs (the earlier eviction application).
[4]
Mr Tsotetsi (snr) was replaced by Mr Tsotetsi as the executor of the
deceased estate in the light of the controversy surrounding
his
appointment. Letters of executorship were issued to Mr Tsotetsi
by the Master of the High Court. In that official
capacity, he,
on 2 March 2016, instituted a fresh application against Ms Radebe and
Ekurhuleni in the Palm Ridge Magistrates’
Court under case no.
1513/16, in which application the eviction of Ms Radebe is sought on
the same grounds as in the earlier eviction
application. Ms
Radebe opposed the application and filed a very short answering
affidavit in which she only raised the defence
of
res judicata
as a point
in limine
. She states:
‘
The
Applicant’s case is based on the same cause of action which was
brought by the Applicant’s Attorney of record before
the same
court on the same subject matter. This Applicant was a witness
in the application for eviction under case number
2786/2015 which was
dismissed (
sic
)
with costs on party and party scale by the Above Honourable Court.
This is a double jeopardy application and the Applicant’s
grounds to bring this application is based on similar cause of action
as the former.’
[5]
This application, which forms the subject-matter of this appeal, was
heard by the learned magistrate Masango in the Palm Ridge
Magistrates’ Court. In upholding the point
in limine
with costs, he held as follows:
‘
Coming to
the defense of
res-judicata
.
As the court indicated above, it is satisfied that the parties are
the same, the cause of action is the same, the subject
matter is the
same, relief sought is the same.
The previous application was
determined by absolution from instance. I agree with the
applicant and disagree with the respondent.
Absolution from the
instance is not a final determination.
If this being the position, that means
in essence that the previous matter is still pending, has not yet
been finally determined
if we agree that absolution from the instance
is not a final determination.
Therefore the court cannot here the
related new matter when the old one is still pending before court.
The respondent raised
the point of law of
res-judicata
.’
The
learned magistrate then referred to an authority which is to the
effect that the elements required to establish the plea of
res
judicata
are the same as those required to establish the plea of
lis pendens
, and concluded thus:
‘
Therefore
the conclusion to be drawn is that the previous matter is still
pending. That being the case, therefore, there were
options
available to the applicant to bring the said previous matter to
finality.’
[6]
One of the elements required to establish the plea of
res iudicata
is that the judgment or order must be final and definitive on the
merits of the matter. (See
African Wanderers Football Club (Pty)
Ltd v Wanderers Football Club
1977 (2) SA 38
(A);
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
2006 (6) SA
68(C).)
An absolution order is not a final order on the merits
for purposes of the
exceptio rei judicatae
. In
United
Enterprises Corporation
v
STX Pan Ocean Company Ltd
[2008] ZASCA 21
;
[2008]
(3) All SA 111
(SCA) para 9, Farlam JA said the following:
‘
.
. .
It
is clear that in our law a defendant who has been absolved from the
instance cannot raise the
exceptio
rei judicatae
if sued again on the same cause of action: see
Grimwood
v Balls
(1835) 3 Menz 448
;
Thwaites
v Van der Westhuyzen
(1888) 6 SC 259
;
Corbridge
v Welch
(1891-92) 9 SC 277
at 279;
Van
Rensburg v Reid
1958 (2) SA 249
(E) at 252B-C [also reported at
[1958] 2 All SA 319
(E) – Ed]; Herbstein and Van Winsen,
The
Civil Practice of the Supreme Court of South Africa
,
4ed 1997 at 544 and 684. It was held in
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 563G-H [also reported at
[1963] 3 All SA 20
(A) – Ed] that the dismissal of an application (which
ordinarily would be regarded as the equivalent to granting
absolution
form the instance:
Municipality
of Christiana v Victor
1908 TS 1117
,
Becker
v Wertheim, Becker & Leveson
1943 (1) PH F34 (A)) can give rise to the successful raising of the
exceptio
rei judicatae
where, regard being had to the judgment of the court which dismissed
the application, “the import of the order [was] clearly
that on
the issues raised the Court found against the appellant [which had
been the applicant in the previous proceedings], and
in favour of the
respondent”. It is thus clear that it is not the form of
the order granted but the substantive question
(did it decide on the
merits or merely grant absolution?) that is decisive in our law
and that what is required for the defence
to succeed is a decision on
the merits.’
[7] In the earlier
eviction application, Ms Radebe, without leading evidence, applied
for an order of absolution from the instance
at the close of the case
for the deceased estate. The learned magistrate Mosese did not
grant judgment in favour of Ms Radebe
but, instead, absolved her from
the instance. The import of that order was not that the learned
magistrate found against
the deceased estate and in favour of Ms
Radebe on the issues raised. The learned magistrate did not
hear the evidence of
Ms Radebe and of any other witness whom she
might have wished to call. It cannot be said, therefore, that
that decision was
final and definitive on the merits of the matter.
[8] Courts are not
entitled to raise the issue of
lis pendens
unless the
defendant or respondent pleads it specifically. (See
Kerbel
v Kerbel
1987 (1) SA 562
(W).) It was thus not open to the
learned magistrate Masango to raise the issue. Furthermore, the
learned magistrate,
in my view, was wrong in holding that the
previous eviction application was still pending and that
lis
pendens
, therefore, found application. The order of the
learned magistrate Mosese in the earlier eviction application
absolved Ms
Radebe from that instance and she was also granted her
costs of opposing the application. That order concluded and
disposed
of the earlier application; it was never set aside. Mr
Tsotetsi, in his official capacity, therefore, was at liberty to
institute
the fresh eviction application that forms the subject of
this appeal, against Ms Radebe. There was no longer a
lis
pending between them and
lis pendens
, therefore, found no
application.
[9]
In the result, the following order is made:
1. The appeal succeeds
with costs.
2. The order of the
learned magistrate, Mr M Masango, issued on 22 July 2016 under case
no. 1513/2016 is set aside and replaced
with the following order:
‘
The
point
in
limine
is
dismissed with costs.’
________________________________
P.A. MEYER
JUDGE OF THE HIGH
COURT
I
agree
_______________________________
G.
KAIRINOS
ACTING JUDGE OF THE
HIGH COURT
Date
of hearing: 20 August 2018
Date
of judgment: 4 September 2018
Counsel
for the Appellant: Adv NM Mtsweni
Instructed
by: Butelezi Attorneys
Counsel
for Respondent: Adv TJ Mngomezulu
Instructed
by: Mngomezulu Attorneys, Germiston