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[2018] ZASCA 190
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Dombo Community v Tshakhuma Community Trust and Others (1078/2017) [2018] ZASCA 190 (19 December 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 1078/2017
In
the matter between:
THE DOMBO
COMMUNITY APPELLANT
and
TSHAKHUMA
COMMUNITY TRUST FIRST
RESPONDENT
M
W
MADZIVHANDILA SECOND
RESPONDENT
THE
REGIONAL LAND CLAIM COMMISSION FOR
THE
PROVINCE OF
LIMPOPO THIRD
RESPONDENT
CHIEF
LAND CLAIMS COMMISSIONER FOURTH
RESPONDENT
MINISTER
OF THE DEPARTMENT OF RURAL
DEVELOPMENT
AND LAND REFORM FIFTH
RESPONDENT
Neutral
citation:
Dombo Community v
Tshakhuma Community Trust & others
(1078/2017)
[2018] ZASCA 190
(19 December 2018)
Coram:
Tshiqi, Seriti,
Mbha and Zondi JJA and Nicholls AJA
Heard:
22 November 2018
Delivered:
19 December 2018
Summary:
Rescission of
judgment in terms of s 35(11) of the Restitution of Rights Act read
with rule 64(2) of
Land Claims Court Rules following
the grant of the
order reviewing the Regional Land Claims Commission decision
certifying the claim compliant in terms of
s 11(1).
ORDER
On
appeal from:
Land
Claims Court, Randburg (Molefe J sitting as court of first instance):
1 The appeal succeeds.
2 The order of the Land
Claims Court dismissing the application for rescission is set aside
and is substituted by the following:
‘
(a)
The application for rescission of the default judgment granted
against
the
applicant on 29 May 2014 is granted;
(b)
The late filing of the rescission application is hereby condoned;
(c)
The applicant is granted leave to file the answering affidavit within
14 days from the date of this judgment.’
3 No order is made as to
costs.
JUDGMENT
Zondi
JA (Tshiqi, Seriti and Mbha JJA concurring):
[1]
This is an appeal against the judgment of the Land Claims Court (the
court below) dismissing the appellant’s application
for the
rescission of default judgment granted by Bertelsmann J on 29 May
2014. The application for rescission was dismissed on
the grounds
that there was no reasonable explanation shown for the delay and that
there were no reasonable prospects of success.
The appeal to this
court is with leave of the court below.
[2]
In 1995, two communities, Dombo Community, the appellant (Dombo) and
Tshakhuma Community, both based in Venda, Limpopo Province
lodged
separate land claims with the Limpopo Regional Land Claims Commission
(RLCC), in terms of the Restitution of Land Rights
Act 22 of 1994
(the Restitution Act), in respect of the same and/or overlapping
pieces of land in the Levubu area. With the assistance
of the
Regional Land Claims Commission the two claims were merged. The
deponent to the founding affidavit, Mr Stephen Dombo alleges
that
Dombo agreed to the merger because it was told by the RLCC that a
Trust would be formed for the purposes of acquiring, holding
and
managing the property. Dombo was assured that members of both
communities would be beneficiaries and each community would be
represented on the board of trustees. According to Mr Dombo the RLCC
informed Dombo that the merger would expedite settlement of
the land
claims, in particular in view of the fact that there existed a
possibility that Dombo might not be able to prove that
it was an
independent community at the time of dispossession. To that end the
Tshakhuma Community Trust, the respondent (the Trust),
on which Dombo
had representation, was created and took transfer of the land that
was restituted in due course.
[3]
Subsequently, a dispute arose amongst the trustees regarding the
manner in which the affairs of the Trust were being conducted.
The
trustees from Dombo felt they were constantly side-lined by the Trust
when decisions affecting them and their community members
were taken.
As a result, they resigned from the Trust and with that Dombo took a
resolution to re-lodge its land claim, which it
had agreed to abandon
in favour of the creation of a Trust. Attempts to resolve the dispute
between the two communities through
mediation by Tokiso, a dispute
resolution organisation and meetings with the officials from the
RLCC, failed. The RLCC agreed to
allow Dombo to submit its land claim
afresh and to investigate same.
[4]
In due course and on 12 October 2010 the RLCC filed its report
(compliance report). In short, the report concluded that Dombo
satisfied the requirements of s 2 of the Act regarding the Procedure
of the Commission on Restitution of Land Rights; that although
the
Tshakhuma Traditional Authority lodged the claim on the entire Levubu
15 LT for their subjects, the findings of the research
showed that
the restored properties belong to Dombo who were dispossessed of
informal or unregistered rights in relation to the
land.
[5]
Pursuant to this report Ms Ratshitanga, the project co-ordinator
recommended that the Regional Land Claims Commissioner should:
‘
1. Accept the Dombo land claim
as compliant and approve same;
2 .Accept that Dombo community be
awarded the portions of the farm Levubu 15 LT where they were
dispossessed from;
3. Negotiate with the Dombo claimants
with regard to the portions that were already restored to Tshakhuma
Community Trust;
4. Approve the amendment of the
Gazette Notice No 21074 of April 2000 to include the Dombo Community
claim and withdraw those which
were gazetted to Tshakhuma
erroneously; and
5. Condone the manner of lodgment by
the Dombo Community.’
The
recommendations were supported by all concerned in the administration
of Land Claims including the Regional Land Claims Commissioner.
[6]
The report together with the recommendations were sent, inter alia,
to the respondent. Dombo’s land claim was thereafter
gazetted
on 2 November 2012. It is this decision which triggered the launch of
the review proceedings by the respondent, in respect
of which Dombo
failed to file its answering affidavit resulting in the grant of the
order sought by Tshakhuma Trust. The review
was served on Dombo’s
erstwhile attorneys, Lawyers for Human Rights on 17 January 2014. On
30 January 2014, Dombo through
its attorneys filed a notice of its
intention to oppose. Nothing happened thereafter.
[7]
On 1 April 2014, the respondent set the matter down for hearing on 29
April 2014. It seems that the notice was not served on
Dombo’s
attorneys because Lawyers for Human Rights were on record at that
time but there is no proof that service was effected
on them. The
probability therefore is that Dombo’s attorneys’ non-
appearance was due to the fact they were not aware
of the court date.
The court below (Bertelsmann J) on 29 April 2014 postponed the matter
to 29 May 2014 and issued directions with
regard to the further
conduct of the matter. In terms of the directions Dombo had to file
its answering affidavit by 25 May 2014
to which the respondent had to
reply by 27 May 2014 and the costs were reserved. The court order was
faxed to Lawyers for Human
Rights on 29 April 2014. Pursuant to this
order, the review application was heard on 29 May 2014. It is common
cause that Dombo
did not file its answering affidavit and neither did
it attend the court below on 29 May 2014.
[8]
As the court below was satisfied that the matter had been properly
set down, it proceeded to hear the matter on an unopposed
basis and
in that event granted the order in terms of which it reviewed and set
aside the decision of the RLCC to accept and approve
Dombo’s
land claim and its decision to accept the recommendations in the
‘Ratshitanga Report’. Dombo was ordered
to pay the costs.
It is this order which Dombo sought to have rescinded in the
application dated 31 January 2017.
[9]
Section 35(11)(a) of the Restitution Act provides for the rescission
of any order or judgment granted by the court in the absence
of the
person against whom that order or judgment was granted. The period
within which the rescission application should be brought
and what
must be established are stipulated in rule 64(2) of the Rules of the
court below. Such an application should be brought
within ten days
from the date upon which the applicant became aware of the order and
on good cause shown.
[10]
Under the common law, in order to succeed an applicant in an
application for rescission of a default judgment must show good
cause. In
Colyn v Tiger Food Industries
2003
(6) SA 1
(SCA) at 9E this court observed that although the
authorities emphasise that it is unwise to give a precise meaning to
the term
‘good cause’, it was clear that the courts
generally expect an applicant to show good cause; by giving a
reasonable
explanation of his or her default; by showing that his
application is made bona fide; by showing that he or she has a bona
fide
defence to the plaintiff’s claim, which prima facie has
some prospect of success. The court has a wide discretion in
evaluating
‘good cause’ in order to ensure that justice
is done and that discretion must be exercised after a proper
consideration
of all the relevant circumstances.
[11]
The respondent opposed the application. It contended that the
application had to be dismissed on the grounds that it was late
and
yet there was no application to condone the lateness and that no bona
fide defence to the review application was shown.
[12]
The application for rescission was way out of time. The relief sought
in prayer 2 of the notice of motion is inelegantly formulated.
In
prayer 2 Dombo sought an order ‘to condone none-compliance with
the court rules relating to the time limits for the filing
of an
Answering Affidavit. . .’ But what can be deciphered from it is
that Dombo intended to apply for condonation for the
late filing of
the rescission application.
[13]
Factors which usually weigh with the court in considering an
application for condonation include the degree of non-compliance,
the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment, the convenience
of the
court and avoidance of unnecessary delay in the administration of
justice.
[1]
[14]
Dombo alleges that its failure to attend court on 29 May 2014 and to
file its answering affidavit was caused by the fact that
Bertelsmann
J’s order dated 29 April 2014 was not brought to its attention
by its erstwhile attorney, Ms du Plessis. The
attorney concerned
alleged in a letter dated 7 November 2016, addressed to Dombo’s
attorneys of record that the notice of
set down was not brought to
her attention by her staff. There is no explanation at all as to how
the court processes were handled
at the attorney’s firm and who
was responsible for handling such processes and why the notice of set
down was not received.
[15]
Mr Dombo, the deponent to the founding affidavit, contends that the
neglect was not wilful
.
He
argues that Dombo always wanted to defend the review application. Mr
Dombo outlines all the efforts Dombo made in order to ensure
that the
review application was opposed. The correspondence shows that Dombo,
at all material times, communicated with its erstwhile
attorneys when
the Dombo Cummunity asked about progress of the matter.
[16]
It appears from the correspondence that on 6 September 2016 the
current attorneys of record were appointed by the service provider
on
behalf of the RLCC to represent Dombo. The current attorneys of
record again let Dombo down in that they also delayed in filing
the
application for rescission. What is, however, glaring in this matter
is that Dombo was at all times following up on the progress
of the
matter. The delays were caused by ineptitude on the part of their
attorneys and also by the delays by RLCC in processing
Dombo’s
request for funding of its legal representation.
[17]
As regards the prospects of success, Dombo contends that the review
application suffered from a number of procedural defects,
which it
argues, arise from the respondent’s failure to comply with the
requirements of the rules of the court below relating
to reviews, in
particular rule 35. The contention is that because of non-compliance
with the applicable rule, the relief sought
in the review application
should not have been granted
.
It is correct that in terms of rule 35(1)
upon receipt of the review application the Commission was required to
file the record
of the ‘proceedings and all documents relevant
to the decision or action sought to be reviewed’ together with
his or
her reasons for the decision or action. The application for
the review and the record of the proceedings referred to in rule 35
(1) that served before the court below are not before this court. It
therefore does not behove the appellant to take this point
when the
documents that served before the court below when it determined the
review application are not before this court. This
point must
therefore fail.
[18]
As regards the merits, it was submitted by the respondent that
Dombo’s rescission application should fail as Dombo has
no bona
fide defence to the review application. The respondent contended that
the RLCC was precluded from considering Dombo’s
claim, because
Dombo had agreed to merge its claim with that of the respondent. The
respondent argued that the entire land that
is claimed by Dombo was
restituted to Tshakhuma Community, which is now the owner not the
Trust. It further contended that what
was merged were the claims not
the pieces of land. The merger was done orally not in terms of s
14(3). Following the merger, the
Trust Deed was executed. The
respondent alleged that the relationship between the two communities
soured after the Trust suspended
the deponent to Dombo’s
founding affidavit and Mr Mbangiseni Maraga for misappropriation of
funds.
[19]
The respondent argued that the rescission would prejudice it. It
contended that since its formation it had embarked on a progressive
recapitalization plan with the assistance of the Department of Rural
Development and Land Reform, which includes a 30 year land
swap
agreement which was entered into with the Unlimited Group (Pty) Ltd
in 2014, in terms of which the Group was granted the land
use rights
in return for their repayment of a loan of R18 million that was taken
from the Industrial Development Corporation to
finance operations on
the restituted land. This agreement, the respondent contended, covers
the land claimed by Dombo.
[20]
It is not in dispute that the application for review was aimed at
setting aside the decision of the RLCC to cause to be published
in
the Gazette, Dombo’s land claim.
[21]
Section 11(1) of the Restitution Act provides:
‘
Procedure after lodgement of
claim
(1) If the regional land claims
commissioner having jurisdiction is satisfied that─
(a)
the claim has been lodged in the prescribed manner;
(b)
the claim is not precluded by the provisions of section 2; and
(c)
the claim is not frivolous or vexatious,
he or she shall cause notice of the
claim to be published in the
Gazette
and in the media
circulating nationally and in the relevant province, and shall take
steps to make it known in the district in which
the land in question
is situated.’
Section
2 entitles a person or community such as Dombo, dispossessed of a
right in land after 19 June 1913 as a result of past racially
discriminatory laws and practices, to restoration of that right. A
claim for restitution is directed to the Commission, which is
required, among other things, to investigate the merits of the claim,
make a determination as to whether it is not precluded by
the
provisions of s 2, and whether it is not frivolous or vexatious. Once
the claim has been accepted by the Commission, the claim
will be
published in the Gazette. It is then investigated further and either
mediated with the view to reaching a settlement, or
referred to the
Land Claims Court for adjudication.
[22]
The meaning of the term ‘satisfied’ appearing in s 11(1)
was considered by the Land Claims Court in
Farjas
(Pty) Ltd v Regional Land Claims Commissioner
1998
(2) SA 900
(LCC). The court held at para 40 that the term ‘satisfied’
need not always signify proof. It is sufficient if the applicant
can
show in relation to both the factual and the legal issues that there
is an arguable case, even if the arguments are relatively
weak.
Nugent JA in
Mahlangu NO v Minister of Land
Affairs & others
2005(1) SA 451 (SCA)
para 13 expressed the view that the threshold of ‘an arguable
case’ might be too high.
[23]
What Dombo has to establish in order to defend the review application
is that its land claim was a certified compliant. It
does not need to
show that its land claim is valid. Therefore, had Dombo’s
attorneys not been negligent in relation to the
filing of the
answering affidavit, Dombo would have been able to put up an arguable
case based on the fact that its land claim
was certified compliant by
the RLCC. There is no evidence that the RLCC investigated Dombo’s
claim before an oral agreement,
in terms of which Dombo’s claim
merged with that of Tshakhuma Community, was concluded. I say so
because Dombo’s claim
was not part of the claims that were
gazetted in 2000. The agreement which facilitated the merger does not
seem to have complied
with s 14(3). This section provides:
‘
If in the course of an
investigation by the Commissioner the interested parties enter into a
written agreement as to how the claim
should be finalised and the
regional claims commissioner having jurisdiction certifies that he or
she is satisfied with the agreement
and that the agreement ought not
to be referred to the Court, the agreement shall be effective only
from the date of such certification
or such later date may be
provided for in the agreement.’
This
validity of the agreement is one of the issues that will have to be
determined by the court considering the review application.
[24]
In any event, granting the rescission will not occasion the
respondent any prejudice. After all, this land claim is still being
investigated and there are other claimants who lodged a claim in
respect of the same or adjoining properties.
[25]
The court below in its judgment did not deal at all with the
prospects of success which is one of the factors which the court
hearing the rescission application should take into account in the
exercise of its discretion. That being the case, it is not clear
what
factors the court below took into consideration in deciding in the
exercise of its discretion to dismiss the application.
This court
therefore is entitled to interfere with the exercise of the
discretionary power by the court below.
[2]
The case is of importance to both parties. The dispute concerns the
restitution of land in terms of the Restitution Act which is
the
legislation that was enacted in order to give effect to s 25 of the
Constitution.
[26]
The Restitution Act regulates the enforcement of the rights provided
for in s 25(7) by creating special principles applicable
to such
rights, special processes and fora where these rights may be
asserted. Implicit in the provisions and tone of the Restitution
Act
is the principle and value of fairness. In all the circumstances I
have come to the conclusion that good cause exists for setting
aside
the default judgment.
[27]
In regard to the question of costs, I do not consider the
respondent’s opposition to the appeal to have been
unreasonable.
Dombo has approached this court seeking its indulgence.
In general, a party who seeks the court’s indulgence must bear
the
costs not only of its application, but any reasonable opposition
thereto. But since the first respondent did not ask for the costs,
no
costs order will be made.
[28]
In the circumstances the order in the following terms is issued:
1 The appeal succeeds.
2 The order of the Land
Claims Court dismissing the application for rescission is set aside
and is substituted by the following:
‘
(a)
The application for rescission of the default judgment granted
against the applicant on 29 May 2014 is granted;
(b)
The late filing of the rescission application is hereby condoned;
(c)
The applicant is granted leave to file the answering affidavit within
14 days from the date of this judgment.’
3 No order is made as to
costs.
___________________
D
H Zondi
Judge
of Appeal
NICHOLLS
AJA
[29]
I have read the judgment of my colleague Zondi JA and although I
agree with the order, my reasons for reaching that conclusion
are
different. The facts of this case have been set out in the first
judgment and it is not necessary to traverse them further.
[30]
The judgment correctly states that to successfully rescind a judgment
in terms of the common law, three hurdles have to be
overcome. The
first is whether there is reasonable explanation for the default. The
second is whether the application for rescission
is made bona fide,
and finally, the applicant has to have a bona fide defence which
prima facie has some prospects of success.
[31]
Although I have some reservations regarding the explanation for the
default, I have no doubt that the application is made bona
fide. I
will therefore accept in favour of Dombo that it has complied with
the first two requirements of rescission. It is the
last aspect with
which I have difficulty, namely whether the applicant has a bona fide
defence.
[32]
From what is possible to glean from the scanty information available,
the Dombo community lodged a land claim against farm
Levubu 15 LT on
31 May 1995. There were competing claims by other communities such as
the Tshakhuma, Tshitwani, Ravele, Ratombo
and Matumba
communities over the same land. These claims were merged and settled
in terms of s 42D read with s 14(3) of the
Restitution Act. It is
common cause that the merger of the Dombo’s claim with the
Tshakhuma community’s claim was not
reduced to writing.
However, that a merger occurred and that the land claim was settled
is not disputed.
[33]
The merged claims resulted in an agreement to create a trust for the
benefit of all. The land is presently owned by the Tshakhuma
Community Trust which was set up to acquire, hold and manage the
farm. The Trust Deed was registered on 18 June 2004.
[34]
Representatives from members of the Dombo
community were appointed trustees of the Tshakhuma Community Trust
together with the Tshakhuma
community representatives. In 2008,
disagreements arose amongst the trustees and two of the Dombo
trustees were suspended for allegedly
misappropriating Trust funds.
As a result, two other Dombo trustees resigned in protest. Dombo
alleges that the Trust excluded
it from the decision making process
and that it does not reap the benefits of the Trust. As I understand
it, that is the thrust
of its complaint and an important part of its
defence to the main application.
[35]
This led to an unsuccessful mediation process in 2009. Thereafter,
the Dombo community approached the Regional Land Claims
Commissioner
(RLCC) to re-investigate its land claim. The RLCC researched the
Dombo’s land claim and submitted a ‘compliance
report’
which found that there was merit in the Dombo community’s land
claim. The recommendation of the report was
that the Dombo
community’s land claim be accepted and that it be awarded those
portions of the farm which formed the land
from which it was
dispossessed; that RLCC negotiate with the Dombo community in respect
of those portions that have already been
restored to the Tshakhuma
Community Trust; and that the RLCC approve the amendment of the
gazette of 4 April 2000 ‘to include
the Dombo community and
withdraw those which were gazetted to the Tshakhuma erroneously’.
After these recommendations were
accepted by various functionaries in
the RLCC, the Dombo’s land claim was gazetted on 2 November
2012.
[36]
On 28 November 2012, the Tshakhuma Community Trust lodged an
application to have the RLCC’s acceptance and approval of
the
Dombo’s claim reviewed and set aside. In addition, it sought to
have the recommendations in the report reviewed and set
aside. The
Tshakhuma Community Trust was successful in its review application
which was granted on an unopposed basis on 14 May
2014. Although
having been brought to the attention of the RLCC, the application was
not opposed by them either. Nor have they,
to date, sought to rescind
that order.
[37]
The Dombo community finally served its application for rescission on
1 February 2017. The reasons for the various delays are
set out in
the main judgment. Suffice to say that the application was dismissed
by Molefe J on 2 June 2017. It was dismissed on
the grounds that
there was no reasonable explanation for the delay and no reasonable
defence to the review application, without
further explanation.
[38]
There are several obstacles that the Dombo community will have to
overcome in order to successfully resist the main application.
The
most obvious is the legal status of the settlement the communities
entered into. The Constitutional Court in
Eke
v Parsons
[3]
said the following:
‘
The effect of a settlement
order is to change the status of the rights and obligations between
the parties. Save for litigation
that may be consequent upon the
nature of a particular order, the order brings to finality the
lis
between the parties; the
lis
becomes
res judicata
(literally, “a matter judged”).’
[39]
Dombo
has
not
said what the prospects of success are in the face of such
established legal principle. Absent an allegation of fraudulent
conduct, which is not contended for, there seems little prospect that
the settlement agreement will be set aside. To the extent
that Land
Claims Court found otherwise in
Mdumane
Community Trust & others v the Land Claims Commission &
others
[4]
,
the facts of that case are entirely distinguishable. In that matter
the community who were the original claimants had not consented
to
the consolidation of the claims and received no benefit from the
consolidation. The court held that, although there was nothing
objectionable in transferring land to subsequently created trusts,
the Restitution Act could not countenance the consolidation
of claims
by unrelated parties without their consent. In those circumstances
the consolidation of the various claims was set aside
and the
registration of the land in the name of the Trust was declared
invalid and set side. In this case, the Dombo community
voluntarily
elected to settle their claim, albeit on their version, reluctantly.
[40]
The Dombo community accepted a compromise and settlement. It now
seeks to re-assert its rights to the very same land which
it agreed
should be merged with other claims. That land has been restituted.
The manner in which it has been done may not be to
the Dombo
community’s liking any longer but this does not avail them of
the opportunity to submit a claim for land which
has already been
restituted to it.
[41]
I am of the view that neither
Farjas
(Pty) Ltd v Regional Land Claims Commissioner
[5]
nor
Mahlangu
NO v Minister of Land Affairs & others
[6]
is of assistance to Dombo. It is correct that both those cases held
that it is not the function of the RLCC to adjudicate upon
the merits
of a land claim for restitution, and all that has to be shown in
terms of
Farjas
is an
‘arguable case’, a threshold that this court in
Mahlangu
believed was too high. However, this cannot possibly mean that a land
claim can be submitted a second time on the same piece of
land by the
same community. The test referred to in these cases can only, in my
view, relate to situations where a land claim is
being considered for
the first time and not to situations where the land claim has been
settled with the claimants as one of the
parties.
[42]
Insofar as the main judgment seeks to differentiate between the
validity of the land claim and the requirement to show that
its claim
is certified compliant, it is in my respectful view, to draw an
artificial distinction. The respondent successfully set
aside the
RLCC’s gazetting of the Dombo claim. To succeed in the
rescission application, Dombo has to show that it has some
prospect
of success to have this claim re-adjudicated alone and separate from
the merged claims.
[43]
The obvious remedy available to the Dombo community is to seek
redress in terms of the Deed of Trust. While we have not been
privy
to this document, it must contain methods of dealing with the
inevitable conflicts that will arise amongst trustees and amongst
the
various communities making up the beneficiaries. In general, it
cannot be desirable to allow communities to renege on settlement
agreements which they have entered into voluntarily. It plays into
the hands of disgruntled individuals and can only foster uncertainty
and instability.
[44]
Notwithstanding the above, I would exercise the wide discretion that
a court exercises in applications for rescission. There
is a woeful
paucity of information. The main application is not before us. The
judgment of the court a quo does not shed any light.
There is a
suggestion that other land may be involved which does not form part
of the merged land claim and against which the Dombo’s
may have
a legitimate claim. This is not clear on the papers before us.
[45]
Claims for restitution of land arise out of the country’s
horrendous history of land deprivation which the Restitution
Act
seeks to correct. It is important that the claims of each community
are fully ventilated. In my view it is for the Land Claims
Court to
make a final determination once it has all the facts before it. For
this reason, I concur with the main judgment.
_________________
C
H Nicholls
Acting
Judge of Appeal
APPEARANCES
For
the Appellant: D
Whittington
I
nstructed
by:
Bhayat
Attorneys Inc, Sandton
Bezuidenhouts
Inc, Bloemfontein
For
the Respondents: Q
Pelser SC
Instructed
by:
Tambani
Matumba Attorneys, Makhado
Symington
& De Kok, Bloemfontein
[1]
Federated
Employers Fire and General Insurance Co Ltd & another v McKenzie
1969
(3) SA 360
(A) at 362F-G.
[2]
Ferris &
another v Firstrand Bank Limited & another
[2013]
ZACC 46
;
2014 (3) BCLR 321
(CC);
2014 (3) SA 39
(CC) para 28.
[3]
Eke v Parsons
2016 (3) SA
37
(CC) para 31. See also
Gollach
and Gomperts v Universal Mills & Produce Co (Pty) Ltd
1978
(1) SA 914
(A) at 922H where it was stated that the effect of a
compromise is the same as res judicata on a judgment given by
consent.
[4]
Mdumane Community Trust &
others v the Land Claims Commission & others
LCC Case
60/2012 judgment delivered on 19 November 2015.
[5]
Farjas (Pty) Ltd v Regional
Land Claims
Commissioner
,
Kwazulu-Natal
1998 (2) SA
900 (LCC).
[6]
Mahlangu NO v Minister of
Land Affairs & others
2005 (1) SA
451
(SCA).