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[2013] ZAECMHC 12
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Premier of the Eastern Cape and Another v Dlava and Others (107/99) [2013] ZAECMHC 12; [2013] 4 All SA 182 (ECM) (8 August 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : MTHATHA
CASE NO. 107/99
In the matter between:
THE PREMIER OF THE EASTERN CAPE
............................
1
st
Applicant
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR RURAL DEVELOPMENT AND
AGRARIAN REFORM, EASTERN CAPE
..............................
2
nd
Applicant
and
Z. K. DLAVA & OTHERS
.......................................................
1
st
Respondent
THOSE RESPONDENTS CITED IN
ANNEXURE :NoM 1” HERETO
JUDGMENT
GRIFFITHS, J.:
[1] Case Flow Management is at present being introduced
by the judiciary in the various divisions of the High Court in this
country.
This case, more than any, exemplifies the need for case flow
management and had it been in existence in 1999 and 2000 when the
many actions which are the subject of this application were
instituted, the unhappy circumstances which I shall describe
hereinafter
would probably not have occurred.
INTRODUCTION
[2] The applicants in this matter are the Premier of the
Eastern Cape and the Member of the Executive Council for Rural
Development
and Agrarian Reform, Eastern Cape. The respondents are
the plaintiffs in 309 separate actions against the applicants, and/or
their
predecessors, and others. Apart from five of these actions
which were instituted during the years 2000 and 2001, all these
actions
were launched during 1999.
[3] The applicants seek an order in the following terms:
“
1. That the actions instituted in the above
Honourable Court by the First Respondent and those Respondents cited
in annexure “NoM
1” as plaintiffs against the Premier for
the Province of the Eastern Cape and the Member of the Executive
Council for Agriculture
and Land Affairs, Eastern Cape, as
defendants, under case number 107/99 in respect of the First
Respondent and those case numbers
set out in annexure “NoM 1”
in respect of the further Respondents, be and are permanently stayed.
2. Alternatively to paragraph 1 above, that the individual actions
instituted in the above Honourable Court by the First Respondent
and
those Respondents cited in annexure “NoM 1” as plaintiffs
against the Premier for the Province of the Eastern Cape
and the
Member of the Executive Council for Agriculture and Land Affairs,
Eastern Cape, as defendants under case number 107/99in
respect of the
First Respondent and those case numbers set out in annexure “NoM
1” in respect of the further Respondents
be and are
individually stayed pending:
(a) Payment in full by each Respondent as plaintiff in his or her
individual case of all costs owing by such Respondent to the
defendants as taxed by the taxing master, arising out of
interlocutory proceedings in the abovementioned cases from the date
of
issue of summons until the present; and
(b) Furnishing of security for costs by each Respondent as plaintiff
in his or her individual case in the sum of R250 000.00 (two
hundred
and fifty thousand rand) or such other sum as this Honourable Court
may determine;
3. Alternative relief; and
4. Costs of suit against the Respondents jointly and severally, the
one paying the other to be absolved.”
[4] The applicants have premised their case on various
foundations all of which the applicants allege amount to an abuse of
the
process of this court and result in serious injustice to the
applicants. It is their case that the respondents, in pursuing these
actions, have acted in breach of an agreement concluded by the
parties' attorneys of record, that the litigation is frivolous and
vexatious and that it's continued pursuit is an exercise in futility
in light of the judgment in the matter
of Z R
Twani and Others v The Premier of the Eastern Cape and Others
1
("Twani"). The applicants have also in this
regard relied on the inevitably fruitless incurring of extensive
costs which,
they have alleged, the respondents will almost certainly
not be able to pay in view of their continued protestations of
impoverishment.
HISTORY (BEFORE THE TRIAL IN Z R TWANI AND OTHERS v
THE PREMIER AND OTHERS)
[5] On 10 July 1997 the Premier of the Province of the
Eastern Cape ("the Premier"), purporting to act in terms of
the
provisions of section 13(1) of the Corporations Act
2
issued Proclamation 10 of 1997 in terms of which he
purported to dissolve the then existing Transkei Agricultural
Corporation ("Tracor").
This resulted in an urgent
application being launched in this court by 47 former employees of
Tracor against the Premier, the Member
of the Executive Council for
Agriculture and Land Affairs, Eastern Cape and Tracor itself ("the
Cekeshe application")
in which application the applicants sought
a rule nisi calling upon the respondents in the Cekeshe application
to show cause,
inter alia
,
why Proclamation 10 ought not to be declared unconstitutional and
invalid and set aside. They were also called upon to show cause
why
those respondents ought not to be interdicted and restrained from
unlawfully closing Tracor; terminating, altering adversely
or in any
manner interfering with the employment and conditions of service of
those applicants; withholding, reducing, refusing
to pay or in any
manner interfering with the salaries and benefits enjoyed by those
applicants in terms of their conditions of
service with Tracor; or
evicting, hindering, harassing or in any manner interfering with
those applicants' occupation of residential
premises allocated by
Tracor in terms of their respective conditions of service.
[6] In the Cekeshe application it was averred that the
decision to dissolve Tracor was unlawful, unreasonable, procedurally
unfair
and in violation of those applicants' right to administrative
justice. It was averred that Tracor's employees had been excluded
from the decision making process and had thus not been consulted with
regard to the dissolution of Tracor and the consequences
thereof for
Tracor employees.
[7] In opposing the Cekeshe application, the respondents
in that application did not raise or canvas the extensive period of
negotiation
which had apparently preceded the issue of Proclamation
10, resting their case on an argument that the actions of the Premier
did
not amount to "administrative action" but were rather
legislative in nature. It was thus argued that the Premier was,
in
issuing the proclamation, making original legislation not subject to
the rights protected by section 33 of the Constitution.
[8] This argument did not find acceptance by Van Zyl J
who heard the matter
3
.
In his judgment he found that by exercising his power terms of
section 13 of the Corporations Act, the Premier did not create
original legislation and that his actions constituted administrative
action. Because, on the case as made before him by the respondents,
they had not established compliance with the
audi
alteram partem
principle, the decision was
unlawful and Proclamation 10 together with the consequential
termination of those applicants' employment
was set aside. Van Zyl
J's judgment was duly appealed against but was dismissed by the full
court
4
.
[9] The success of those applicants in the Cekeshe
application spawned the issue of summonses by the respondents in this
matter,
amongst others, who are all ex-Tracor employees. As a matter
of convenience, I shall, in the balance of this judgment, refer to
the respondents as "the plaintiffs". Although the number of
plaintiffs has been reduced, it appears that initially there
were 597
actions. The plaintiffs' cause of action in each instance was based,
in the main, on the finding by Van Zyl J to the effect
that the
dissolution of Tracor constituted unlawful administrative action.
Delictual damages were claimed in each instance based
on the decision
made by the Premier, as first defendant, and further damages
resulting from an
injuria
allegedly
sustained in consequence of the closure of Tracor. One group of
plaintiffs had been employed by Tracor under what was
referred to as
the "Qamata Irrigation Scheme" ("Qamata"). This
set of plaintiffs ("the Qamata plaintiffs")
alleged in
addition to the foregoing that there existed a contractual
relationship between them and the Department of Agriculture
and Land
Affairs of the Province of the Eastern Cape. Based hereon, they
pleaded an alternative claim founded on an alleged breach
of contract
arising from the termination of their employment, together with a
further alternative claim that such employment had
not in fact been
terminated resulting in an entitlement to their full emoluments
consequent upon a tender of their services.
[10] These actions were all defended by the applicants.
It is, however, common cause on the papers that the combined
summonses issued
in all these matters were irregular and excipiable
which resulted in a further series of interlocutory applications.
Before dealing
with the further conduct of these actions, it is
necessary to mention that on 8 July 2008 the offices of the
applicants’
attorneys in Mthatha, X M Petse Incorporated, were
apparently mysteriously destroyed in a fire. During the course of
this inferno
the entire contents of all the files in these actions
were destroyed. It became necessary for the applicants' attorneys to
reconstruct
these files from the material then available to them,
including the court files (which were apparently woefully incomplete)
and
documentation kept by counsel. Accordingly, the further conduct
of the litigation as set out in the founding affidavit was based
upon
these reconstructed, and incomplete, files. A further problem which
faced the applicants in this regard is the fact that the
original
combined summonses are apparently missing from the court files in the
vast majority of these actions.
[11] To illustrate the importance of the original
combined summonses, when the Twani matter (which I shall describe
later in this
judgment) came before the court as a form of test case
a claim originally pursued against the second defendant in one of the
Qamata
actions was abandoned by a subsequent amendment, and was later
sought to be reintroduced by a further amendment after it had
prescribed.
In another instance, a claim against the second defendant
which had not existed in the original particulars of claim was
introduced
by way of an amendment after it had prescribed. Special
pleas in this regard were upheld in the Twani matter when it
eventually
came to trial.
[12] In the founding affidavit, a litany of disastrous
attempts to rectify the problems existing in the particulars of claim
is
described. By way of illustration, on 23 April 1999 the defendants
concerned issued and served a notice in terms of Rule 30 of their
intention to apply for the striking out of certain paragraphs of the
plaintiffs' particulars of claim in certain matters. In response,
each of the plaintiffs concerned filed a notice of amendment setting
out the paragraphs they intended to amend and dealing with
issues
raised in the Rule 30 notice. On 10 May 1999, those defendants issued
and served a notice of motion seeking to set aside
the particulars of
claim as irregular proceedings. These matters were argued during June
1999. The plaintiffs did not oppose the
defendants' application to
strike out paragraphs 9 to 16 of each of the particulars of claim,
but simply opposed the costs order
sought without success. Judgment
in this regard was granted in favour of the defendants by Jafta AJ
(as he then was) on 9 July
1999.
[13] A subsequent application for leave to appeal was
heard in these matters on 23 September 1999 but was dismissed on 30
September
1999. As reflected in the founding affidavit, this marked
the commencement of some 41 interlocutory applications occasioned by
the irregular and improper conduct of the matters dealt with on
behalf of the plaintiffs prior to the first day of trial in the
Twani
matter. In all but one of these interlocutory matters, the costs of
such applications were awarded to the defendants.
[14] Subsequent to delivery of the notices of intention
to defend, the plaintiffs’ attorney was called upon in terms of
Rule
7 to prove his authority to act. Notwithstanding the fact that
this notice precluded his acting further in the matter until such
proof was forthcoming, notices of intention to amend the particulars
of claim were subsequently delivered on behalf of the plaintiffs.
Pursuant to such notices, amended pages were delivered but were met
variously by notices of intention to except or notices of intention
to apply for the setting aside of the pages as irregular proceedings
in terms of Rule 30.
[15] In apparently at least 18 of these matters, notices
of bar were improperly delivered notwithstanding the fact that the
Rule
23 notices had afforded the plaintiffs in those matters an
opportunity to remove the cause of complaint. In 124 of the actions,
a document entitled "PLAINTIFF'S REPLY TO DEFENDANTS NOTICE IN
TERMS OF RULE 23" was delivered. No provision for such
a notice
is made in the Rules of Court. As pointed out by the deponent to the
founding affidavit, although these documents were,
for all practical
purposes, meaningless, each such document was required to be read and
considered and a further appropriate application
in terms of Rule 30
was required to be prepared.
[16] Notwithstanding their lack of success in the matter
referred to earlier, the other plaintiffs apparently persisted with
the
irregular pleadings they had filed which resulted in a further
order granted by Maya AJ (as she then was) in almost identical terms
to the order granted by Jafta AJ, save that, on this occasion, the
plaintiffs were ordered to pay the defendants' costs on an attorney
and client scale.
[17] The next salvo from the plaintiffs was an apparent
attempt to address the shortcomings then existing in the particulars
of
claim by delivering further amended pages in most of the actions
during October and November of 1999. These amendments had not been
preceded by notice in terms of Rule 28 and, not surprisingly, were
again met by notices in terms of Rule 30. Furthermore, between
September 1999 and November 1999, exceptions were filed in the vast
majority of the actions.
[18] Because of the shambolic manner in which these
matters were proceeding as described, an agreement was apparently
concluded
between the legal representatives of the parties to the
effect that a single order would be taken by consent in terms of
which
the plaintiffs undertook to pay the defendants' costs with
regard to a number of procedural steps which had been necessitated by
the plaintiffs' improper conduct of these actions. It is apposite to
mention that the draft order, which is appended to the founding
affidavit, runs into some 59 pages in its description of the notices
and/or pleadings which were to be withdrawn pursuant to the
order
sought as it was necessary to set out in each case the notice or
pleading due to be withdrawn. There were 597 matters involved
and
each of these matters is referred to in the draft order together with
the notice/pleading in question. This provides some illustration
as
to the extent of the documentation which was involved in all these
actions.
[19] Despite this, as averred in the founding affidavit,
the process of amending pleadings and objections thereto in this
mountain
of applications, continued unabated. Because of the
destruction of the files of X M Petse Incorporated in the fire, the
applicants
were unable to obtain copies of all the judgments and
orders issued during the course of the ensuing period. However, those
relevant
documents which they were able to obtain are fully described
in the founding affidavit. Unfortunately, because of the extent of
the interlocutory litigation in these matters, it is necessary to
detail these matters.
[20] On 30 March 2000, Kruger AJ granted an order
setting aside and striking out with costs certain amended pages in
one of the
actions. Sometime after October 2000, Bloem AJ delivered a
judgment setting aside the plaintiff’s notice of intention to
amend his particulars of claim, with costs, in another matter. In
that judgment, Bloem AJ stated that "
Between the issue of the
summons and now the plaintiff has given notice of his intention to
amend his particulars of claim on no
less than 4 occasions
".
[21] On 15 October 2001 Kruger AJ delivered a judgment
in another matter in which the applicant had sought an order
consolidating
the various actions brought by the plaintiffs against
the defendants into two actions. This application was dismissed with
costs.
Of importance, at the time of argument in that application,
applications in terms of Rule 30 were pending in various matters
based
on the following: a challenge brought in terms of Rule 7 to the
authority of the plaintiffs' attorney to act; Rule 30 applications
based on non-compliance with Rule 18, and exceptions brought in terms
of Rule 23.
[22] On 26 April 2001, Miller J granted an order setting
aside notices of intention to amend dated 10 October 2001 which had
been
delivered by 18 plaintiffs. He ordered them to pay the costs of
the 3 defendants in those matters. On 22 November 2001, Miller J
delivered a further judgment in another matter involving 73
plaintiffs who had applied to amend their particulars of claim.
Miller
J referred to the fact that the amendment application had been
necessitated by a successful exception and recorded that the court
had, in a judgment delivered on 22 February 2001, upheld the
defendants' exception with costs and had granted the plaintiffs leave
to amend within 15 days of the grant of that order. It is apposite to
record what the learned judge said in this regard:
"The plaintiffs have made application that the late filing of
the notice on 29 March 2001 be condoned. The failure by the
defendants to comply with the order of court is technical in the
sense they that took positive steps to comply with the time limit
set
by the court. The withdrawal of the previous 2 notices in terms of
rule 28(1) is as a result of the incompetent drafting of
the
particulars of claim which have been a hallmark of this matter, as it
has been in a number of other matters of a similar nature
in which
the plaintiffs are represented by the same attorney. There have been
in this matter, since the issuing of summons, no
less than five
notices of intention to amend."
[23] On 29 January 2002, Matyumza AJ made an order
relating to ten of the plaintiffs granting them leave to amend their
particulars
of claim and directing that they pay the costs occasioned
by the delivery of Rule 28(3) notices. He granted another plaintiff
leave
to amend her particulars of claim and ordered certain
plaintiffs, who had withdrawn applications to amend their particulars
of
claim, to pay costs in those matters.
[24] On 14 March 2002, Miller J delivered a further
judgment relating to six plaintiffs who had excepted to the
defendants' pleas.
Such exception had been premised upon a contention
that because, in the Cekeshe application, this court had set aside
Proclamation
10 as being invalid, the plaintiffs were not entitled to
plead that the issue of the proclamation had followed upon various
consultations
with the plaintiffs (the contention of the excipients
being that this issue had effectively been dismissed in the Cekeshe
matter)
and that this accordingly disclosed no defence. Counsel for
the defendants apparently argued in that matter that the Cekeshe
application
fell to be distinguished from the actions brought by the
plaintiffs as the Cekeshe application had been concerned with the
question
of administrative law and issues of procedural fairness in
dealing with administrative action. On the other hand, the actions of
the plaintiffs were premised in delict. Miller J held that the if
first defendant in the principal litigation was able to satisfy
the
trial court that his conduct in issuing Proclamation 10 did not
constitute a culpable delictual wrong, then he would succeed
in
avoiding the plaintiffs' claims. Accordingly, Miller J dismissed the
exception in each such matter with costs, including the
costs
consequent upon the employment of two counsel.
[25] On 12 August 2002, Norman AJ delivered a combined
judgment in two interlocutory applications brought before her in
matters
involving 66 plaintiffs. These plaintiffs sought leave to
amend their particulars of claim and an order in terms of rule 35(14)
to the effect that the defendants were to make available for
inspection an agreement between the trade union SAAPAWU and the
Eastern
Cape government. Both applications were dismissed with costs.
[26] On 30 January 2003, Maya J (as she then was)
delivered a judgment in which exceptions had been raised against the
plaintiff’s
particulars of claim. The exceptions were upheld
and the plaintiff was ordered to pay the defendants' costs.
[27] On 3 April 2003, Maya J delivered a further
judgment relating to 69 plaintiffs seeking amendments to their
particulars of claim.
In this judgment, she pointed out that almost
all the objections raised by the defendants to the proposed
amendments had been raised
in other related matters in which she had
already handed down judgments. She granted the respective plaintiffs
leave to amend their
particulars of claim in respect of certain
amendments prayed, and disallowed others. She directed the plaintiffs
to pay the defendants’
costs.
[28] On the day after she had delivered this judgment,
Maya J delivered a further judgment in three applications involving
110 plaintiffs
which had been argued together and in which amendments
were sought. During the course of this judgment she again reflected
that
a number of the objections raised had been argued and dealt with
in other matters in which she had already delivered judgments,
referring specifically to the judgment mentioned in the previous
paragraph. Again, she granted certain plaintiffs leave to amend
their
particulars of claim in certain respects, refused them leave in other
respects and ordered them to pay the defendants' costs.
THE TRIAL IN Z R TWANI AND OTHERS v THE PREMIER AND
OTHERS
[29] During the period April to August 2002 the majority
of the plaintiffs once again amended their particulars of claim and
the
defendants in those actions pleaded thereto. On 30 July 2002 it
was ordered that the matter of Z R Twani be consolidated with 18
other actions. A further application to consolidate all the other
matters with the matters then so consolidated, was dismissed.
[30] Subsequent thereto, the attorney acting for the
plaintiffs proceeded to set down for trial some, but not all, of the
consolidated
matters, as well as some of the matters not included in
the consolidation order. It is alleged in the founding affidavit that
because
this situation was clearly untenable, an agreement ("the
agreement") was reached between the legal representatives to
the
effect that a further application for consolidation of the matters
would be brought by consent, the matters so to be consolidated
constituting a representative sample of the various categories of
plaintiffs. This agreement is simply denied by the plaintiffs
in this
application.
[31] The application (by consent) to consolidate these
matters has been annexed to the founding papers. That application was
brought
by the twenty eight plaintiffs whose names appear on a
schedule to the notice of motion. The notice of motion reflects that
it
was indeed Mr. Tshiki (the plaintiffs’ attorney who has
acted for them since the inception of these actions and before) in
the form of "M TSHIKI AND SONS INC." who brought the
application on behalf of those plaintiffs. The founding affidavit
was
attested to by Mpeleki Tshiki who briefly set out the background to
the matter and proceeded to state:
"
Following from this the parties agreed that
it was in the interests of all concerned to constitute a
representative sample of matters
and to proceed to finality in
respect thereof so that a decision could inform the further conduct
of the Tracor litigation."
[32] He stated further:
"7. Thus for instance, while issues are similar, some of the
Tracor litigants were members of management, some were members
of
SAAPAWU the recognized trade union at Tracor and some worked at
Qamata. A further category is constituted by Tracor litigants
against
who the defendants have pleaded prescription. A recognition of these
differences underlie the parties desire to constitute
a
representative sample.
8. With this in mind, and by special arrangement with the Acting
Judge President the matter of
Twani & 18 others
has been
set down for hearing for an extended period commencing on 22 April
2003.
9. The parties wish to further consolidate the matters listed in
paragraph 2 of the notice of motion with that of
Twani & 18
Others v The Premier and Others
.
10. I respectfully submit that it is in the interests of all
concerned, including the interests of the administration of justice
that an order be granted in terms of the Notice of Motion. A decision
on a representative sample has every prospect of avoiding
or at least
curtailing, further litigation."
[33] It is of importance to record that notwithstanding
the express description of the agreement between the parties as
contained
in this affidavit of the plaintiffs' attorney, as alluded
to earlier the existence of the agreement is denied by the plaintiffs
in their answering affidavit
[34] The order sought by consent in this application was
granted on 24 March 2003 and, as foreshadowed in the affidavit quoted
above,
the trial commenced before Schoeman J on 22 April 2003.
However, on 25 April 2003 she recused herself.
[35] After certain initial delays, the trial commenced
the
de novo
before
Kroon J on 20 August 2003. In essence, the pleadings were premised on
a pleaded division between 2 groups of plaintiffs –
those who
alleged that they had been in the employ of Tracor at the time of the
issuing of Proclamation 10 ("the Tracor plaintiffs")
and
those who were working at Qamata, which was administered by Tracor,
and who alleged that they were employed by the Department
of
Agriculture and Land Affairs.
[36] The claims of the Tracor plaintiffs were founded in
delict and based on the wrongful termination of their employment
pursuant
to the declaration that Proclamation 10 was unlawful. In a
second claim, they sought recovery of damages from the Premier for
alleged
injuria
in the
form of impairment of dignity alleging that the manner of termination
of their employment had rendered them unable to attend
to the needs
of their families etc.
[37] The Qamata plaintiffs' alleged that the defendants
had, acting with the consent of the entire cabinet of the Eastern
Cape Provincial
Government, made a decision to liquidate and dissolve
the Eastern Cape agricultural parastatals and their associated
irrigation
schemes, including Tracor and Qamata. They alleged further
that pursuant to this decision two proclamations, including
Proclamation
10 purporting to dissolve Tracor, were issued resulting
in the termination of their employment and that such termination was
wrongful
and unlawful as they had not been consulted. They also
pursued an alternative cause of action against the Member of the
Executive
Council for Agriculture and Land Affairs alleging that in
fact the dissolution of Tracor and Qamata did not terminate their
contracts
of employment with the Department of Agriculture and Land
affairs, that notwithstanding their alleged tender of employment of
their
services and demand for payment of their emoluments as against
such tender, the Department had repudiated their employment contracts
and they had thus suffered a loss of their employment benefits and
emoluments.
[38] The Qamata plaintiffs pursued a further alternative
claim based on a wrongful termination of their employment and a
second
claim based on
injuria
in the form of impairment of
dignity.
[39] Shortly after the commencement of the trial, the
plaintiffs’ attorney was called to testify on behalf of the
plaintiffs.
Inter alia
, he was cross-examined with regard to
the question of consultations prior to the promulgation of
Proclamation 10. Counsel then
acting for the plaintiffs objected to
this cross-examination arguing that the matter was
res judicata
by virtue of the outcome of the Cekeshe application, a matter which
had been settled by Miller J in a full judgment as mentioned
earlier.
Kroon J, not surprisingly, ruled that such evidence was indeed
admissible.
[40] Approximately three and a half weeks into the
trial, Kroon J granted an order reducing the number of plaintiffs to
nine, with
the remaining matters being postponed part heard. Kroon J
did this because of the prolixity of the matters and in an attempt to
curtail the duration of the trial. It was agreed that these nine
cases remained representative of the identified categories of
actions. However, in due course two of these actions were again
joined in the consolidated action for reasons of convenience and
to
ensure representativity as discussed earlier.
[41] The trial ran from 21 August 2003 to 29 August 2003
and from 2 September to 5 September 2003. It recommenced on 8
September
and ran to 12 September 2003. It thereafter ran from 15 to
19 September and on 20 and 23 September 2003, when it was postponed
to 14 October 2003. Upon recommencement it ran from 14 October to 17
October 2003 and from 20 October to 23 October 2003, on which
date it
was postponed to 20 November 2003. On 20 November 2003 it was
postponed to 20 January 2004 after which it proceeded to
23 January
2004 with various interruptions when witnesses were unavailable or
had not been subpoenaed to testify on behalf of the
plaintiff. At
this stage an additional plaintiff was joined.
[42] The plaintiffs thereafter closed their case and an
application for absolution from the instance was made. In due course,
Kroon
J upheld special pleas of prescription which had been raised by
the second defendant as against the Qamata plaintiffs who remained
in
the consolidated action, but found that evidence had been tendered on
the remaining issues on which the court could possibly
find for the
plaintiffs.
[43] It should be mentioned at this stage that these
causes of action in respect of which Kroon J upheld special pleas of
prescription,
remain causes pursued to this day by the majority of
the Qamata plaintiffs.
[44] The trial resumed thereafter and proceeded
intermittently from 15 March 2004 until 20 April 2004. Argument was
presented from
10 May 2004 and the typed transcript of the
proceedings, excluding argument presented on behalf of the
defendants, runs to some
73 volumes.
[45] On 3 March 2005 Kroon J handed down a comprehensive
judgment of 168 pages in which he nonsuited all the plaintiffs in the
consolidated
actions, directed them to pay the costs of the
defendants including the costs of two counsel, and further directed
the plaintiffs'
attorney of record to pay the costs of 3 days of the
proceedings
de bonis propriis
. Not only was this judgment
important by reason of the fact that it had been agreed that it would
be a test case in order to inform
the conduct of the remaining
matters, but because the learned judge dealt with every possible
defence raised on behalf of the defendants.
In some instances he
found that a certain defence raised was a complete defence to the
plaintiffs’ claims but, nonetheless,
proceeded to deal with all
the other defences in the knowledge that this was, in effect, a test
case and despite the fact that
such would probably amount to an
obiter dictum
.
[46] In summary, I can do no better than to list such
findings as set out in the founding affidavit as follows:
“
(a) The Qamata employees were employed by
Tracor, and not the Department of Agriculture and Land Affairs, and
accordingly their
claims against the second Defendant premised upon a
contract of employment between them and that department were
unsustainable.
(b) The plaintiffs had not raised in their pleadings an alleged
failure by the Premier (the first Defendant) to comply with the
provisions of section 199 of the act
Labour Relations Act, No 66 of
1995
, or an alleged failure on the part of the first Defendant to
comply with the terms of a recognition agreement which Tracor had
concluded with the Food and Allied Workers Union, and accordingly the
plaintiffs were not entitled to rely on such provisions to
establish
wrongfulness on the part of the first Defendant, as had been
contended in argument on behalf of the plaintiffs.
(c) The first Defendant's decision to issue Proclamation 10 was not
wrongful for want of proper and adequate compliance with the
audi
alteram partem
rule, and there was proper and adequate compliance
with the rule in the form of consultations with, and affording a
hearing to the
plaintiffs, and that the first defendant's decision
was accordingly not wrongful on that score. This had been a core
issue raised
by the plaintiff's in their pleadings, and went to the
heart of their cause of action.
(d) The first Defendant's decision to issue Proclamation 10 was not
wrongful on any other grounds advanced by the plaintiffs.
(e) The first Defendant did not act culpability in issuing
Proclamation 10.
(f) The plaintiffs could not establish
animus injuriandi
on
the part of the first Defendant, and accordingly their
injuria
claims could not succeed.
(g) The discharge forms signed by all Tracor employees, including the
Qamata employees, before receipt of
ex gratia
or severance
packages which had been financed by the national government,
constituted a waiver of the rights of the plaintiffs to
pursue the
claims they had introduced against the defendants."
[47] The Twani plaintiffs, notwithstanding the
comprehensive nature of the judgment delivered by Kroon J, sought
leave to appeal
against it. This application was initially set down
for hearing on 18 April 2005 but, because counsel for the plaintiffs
was improperly
prepared, it was postponed. It was subsequently set
down for hearing in Port Elizabeth on 24 June 2005, an agreed date.
However,
the plaintiffs' counsel and attorney attended at the High
Court in Grahamstown and arrived in Port Elizabeth too late for the
matter
to be argued to completion. It was again postponed. It was set
down for hearing on 11 and 12 October 2005. This approach of the
plaintiffs’ legal representatives significantly increased the
costs of that application. By the time the matter was ultimately
argued, the plaintiffs' counsel had withdrawn and it was dealt with
by their attorney notwithstanding that he had testified on
their
behalf during the trial.
[48] The notice of appeal had been objected to by the
defendants. Their contention was that the notice was fatally
defective by
virtue of its failure to comply with the requirements of
rule 49(1)(b)
which requires the grounds of appeal to be clearly and
succinctly set out. This notice of appeal ran to some 69 pages. Kroon
J,
in his judgment on the application for leave to appeal, described
this document thus:
"… it was indeed a rambling, repetitive document which
required sifting for the grounds of appeal to be discerned as
opposed
to extensive argument in support of the grounds."
[49] That notice was withdrawn and a second notice was
filed which ran into 65 pages. In respect of this subsequent notice a
similar
objection was raised. Kroon J held that this objection was
likewise not misplaced but accepted it "despite its
shortcomings".
He however dismissed the application for leave to
appeal with costs, including the costs of two counsel.
[50] The applicants allege that during the course of
this application for leave to appeal the plaintiffs’ legal
representative
sought to advance argument which had either not been
advanced in the court
a quo
,
or was in conflict with the argument so advanced, and that this was
the first indication to them that the litigation was henceforth
to be
approached on a basis which had not previously formed the substance
of the case brought on their behalf.
[51] The plaintiffs sought special leave to appeal from
the Supreme Court of Appeal, which application was dismissed with
costs.
A subsequent application for leave to appeal to the
Constitutional Court, was likewise dismissed.
POST TWANI
[52] It appears that, notwithstanding the agreement
struck between the parties as evidenced in the application for
consolidation
referred to above, and the despite the resoundingly
clear outcome of the litigation in the Twani matter, the plaintiffs
have continued
unabated to pursue their actions against the
applicants, albeit on a new purported cause of action. It is again
necessary to record
this.
[53] During August 2006 two plaintiffs, Xalisa and
Sibozo, served notices of intention to amend their particulars of
claim. These
notices recorded their intention to replace all except
the formal averments then in their particulars of claim. This was
thus a
clear attempt to plead these two plaintiffs’ entire case
afresh. In the one instance, the notice of intention to amend ran
to
37 pages and in the other, to 23 pages. In the Xalisa matter, six
further attempts to amend the particulars of claim followed
before a
substantive application to amend those particulars was heard, whilst
a further seven attempts to amend the particulars
of claim in the
Sibozo matter followed before the substantive application to amend
was heard simultaneously with the Xalisa matter.
On 2 August 2007,
these applications for amendment were dismissed with costs by Alkema
J. Applications for leave to appeal against
the judgments in these
two matters were noted, but never prosecuted.
[54] In order to best understand the manner in which
these matters were generally proceeded with, is apposite at this
stage to repeat
a portion of the founding affidavit describing these
applications before Alkema J.
"The matter was set down for hearing before Mr. Justice Alkema
in Port Elizabeth on 19 June 2007, at which stage he advised
the
plaintiff’s attorney that the plaintiff’s papers were in
a state of disorder, and that it was not clear what relief
the
plaintiff was in fact seeking. This resulted from the fact that the
plaintiff’s attorney had presented supplementary
heads of
argument to which were attached yet another new draft of the
plaintiff’s particulars of claim. His Lordship inquired
whether
the defendants' representatives would not be prepared to consent to
the amendment of the plaintiff’s particulars
of claim in
accordance with the draft particulars of claim, and then raise any
objections by way of exception or special plea or
other appropriate
means in respect of such amended particulars. Upon examination of the
draft particulars of claim, the defendants'
representatives noticed
that the new draft contained further new matter in respect of which
no notice had been given, and the defendants'
lead counsel advised
his Lordship that he considered it inappropriate to be required to
make a decision in respect of his Lordship's
inquiry under the
pressure of the time constraints that prevailed. His Lordship then
postponed the matter, directing that, unless
the Premier's
representatives had consented to the amendment in terms of the new
draft particulars of claim by noon on 22nd June
2007, the
applicant/plaintiff was to bring a formal application for amendment
of his particulars of claim in accordance with the
new draft
particulars of claim which had been attached to the heads of
argument. The plaintiff failed to bring such application,
lodging
instead on 27 June 2007 an application for consolidation of all the
previous applications for leave to amend the particulars
of claim,
and then for leave to amend the existing particulars in accordance
with the new draft, furnishing no coherent foundation
for the
amendment in the terms now sought."
[55] It is of some significance to note that the Sibozo
application was supported by an affidavit deposed to not by the
plaintiff
Sibozo, but by the other plaintiff, Xalisa. Xalisa averred
that he was authorized to depose to the affidavit on behalf of Sibozo
in view of the fact, so he averred, that Sibozo was seriously ill. No
proof of such alleged authorization was, however, furnished.
[56] Despite the failure to plead this purported further
cause of action, and the dismissal of the earlier attempt by Alkema
J,
Xalisa filed a further notice of intention to amend his
particulars of claim on 14 August 2007. This notice, as on the
previous
occasion, sought to substitute the formal averments in the
then existing particulars of claim. It was again a prolix document of
27 pages. It was withdrawn on 13 September 2007 after it was opposed
and was replaced on the same day by a further notice of intention
to
amend which, without annexures, ran into 28 pages. After notice of
opposition thereto was delivered, Xalisa filed a further
amended
notice of application for leave to amend his particulars of claim.
The Sibozo matter followed a similar pattern.
[57] These applications were opposed on numerous
grounds. They sought to introduce claims that had long since
prescribed, contained
averments that were excipiable, both because
they were vague and embarrassing and because they disclosed no cause
of action, and
they sought to introduce averments in respect of which
there was no evidence to support them, in other words there was no
triable
issue. The proposed amendments made serious allegations
regarding the conduct of the National Government and the Executive
Council
of the Province of the Eastern Cape without having had them
joined as parties. The Xalisa application was heard by Dawood J on 11
March 2008 and was subsequently dismissed by her, with costs. Of
significance, she said in her judgment that:
"the plaintiff has to come to the realization that he cannot
chop and change his case indefinitely and at some stage has to
present the court with a coherent set of papers that properly sets
out a cause of action."
[58] As I have indicated, the Sibozo matter followed a
largely similar pattern of conduct and was opposed on essentially the
same
grounds. However, once again the founding affidavit upon which
the plaintiff relied was not deposed to by the plaintiff herself,
but
by the plaintiff Xalisa who averred that he did so as he had been
duly authorized so to do by Sibozo by virtue of his acquaintance
with
the facts of the matter. When this authority was disputed in the
answering affidavit, he did not raise the fact of Sibozo
being
seriously ill (as he had done in the previous application for
amendment) but maintained that, as he had been involved in
the Twani
case, and for other reasons, he was “better placed to depose to
the affidavit”. The application by Sibozo
was likewise
dismissed by Dawood J after it and the Xalisa matter had been heard
together.
[59] Because it appeared that the plaintiffs and their
attorney, Mr. Tshiki, did not intend to honour the agreement which
had led
to the consolidation application and the subsequent Twani
trial, and believing that it was necessary to complete the part heard
matters which had been separated during the course of the Twani
matter, the applicants' attorney called for a
rule 37
conference in
respect of these matters. This was held on 17 October 2007. During
the course of this conference, the plaintiffs’
attorney took
the view that, despite the fact that these cases had been separated
from the others during the course of the trial,
they were not part
heard. He also recorded his intention to amend the pleadings in those
matters but has, notwithstanding, refused
to sign the minute of that
conference.
[60] On 31 July 2008 further notices of intention to
amended particulars of claim were served on behalf of both Xalisa and
Sibozo.
In the Xalisa matter, and on the same date, an application in
terms of
Rule 6(11)
was served in which was sought the joinder of
both the national and provincial governments. Both of these
applications were opposed.
On 8 August 2008, Xalisa served a notice
of withdrawal of a page of his notice of amendment and sought to file
a "corrected"
page in substitution. On 2 September 2008,
Xalisa served an application in the long form for an order joining
the Minister of Agriculture
and Land Affairs in the main action. This
application was subsequently withdrawn, but Xalisa persisted in the
application having
effected service thereof upon the office of the
State Attorney in East London. On 10 September 2008, he served a
formal application
for leave to amend his particulars of claim. He
also served an application seeking condonation for the use of the
provisions of
Rule 6(11)
in the application to join the three
additional defendants. Once again, and in order to avoid repetition,
it should be mentioned
that the Sibozo matter followed a similar
pattern.
[61] Another plaintiff, Kwezula, also filed a notice of
intention to amend his particulars of claim together with a notice of
application
to join additional defendants on 31 July 2008. This
matter followed a similar pattern to the applications of the other
two plaintiffs.
[62] Once again, in view of the fact that these
plaintiffs appeared to want to prolong the proceedings despite the
judgment in the
Twani matter and despite the fact that their various
applications for amendment had been dismissed, the defendants'
attorney issued
a notice in terms of
rule 37(4)
in which was raised
certain inquiries with regard to specific plaintiffs. It was agreed
with the plaintiffs' attorney that a pre-trial
conference would be
held on 22 October 2008. Despite this, he wrote a letter on 17
October 2008 indicating that he was no longer
available and proposed
alternative dates which had come and gone, and other dates that did
not exist.
[63] On 9 April 2009 an application was served in the
name of one of the plaintiff's (Mphahlwa) and 433 others, seeking,
inter alia,
consolidation of their actions. On the same day, a
similar application in the name of another plaintiff (Dintsi) and 159
others,
purportedly former employees employed at Qamata, was served.
The artificial separation between the Tracor and Qamata employees was
thus sought to be perpetuated. Certain of the applicants in these
applications were those who had been litigants in the Twani matter
and whose cases had been postponed part heard. These applications,
together with the joinder and amendment applications, were eventually
set down for hearing before Nhlangulela AJ (as he then was) on 17
June 2009.
[64] These consolidation applications were opposed on
the following bases:
"(a) It is not competent to consolidate matters that are part
heard with matters in which the trial has not commenced.
(b) It is not competent to consolidate matters in which interlocutory
applications for the joinder of additional parties are pending,
with
matters in which no such joinder is contemplated or sought.
(c) It is not competent to consolidate matters in which applications
for the amendment of pleadings are pending with other matters
in
which no such amendments are or have been sought, prior to the
finalization of the amendment applications.
(d) It is not competent to consolidate matters in which plaintiffs
have died, and there has been no substitution of new plaintiffs
for
the deceased plaintiffs, with other matters, prior to the completion
of such substitution.
(e) It was accordingly not convenient to consolidate the cases of the
applicants in these applications."
[65] When the matter served before Nhlangulela J, the
above-mentioned points were raised. The plaintiffs’ attorney
initially
sought to deny that certain matters were indeed part heard,
but the court was referred to the transcript of the record in the
Twani
matter where Kroon J made an order by agreement postponing
these matters after a substantial amount of evidence had been led.
Regarding
the consolidation applications where certain plaintiffs had
died and no substitution had been effected, it was pointed out that
in a number of cases powers of attorney had been filed on behalf of
the estates of the plaintiffs concerned, but that no substitution
had
indeed taken place.
[66] By virtue of these responses, Nhlangulela J
suggested that the plaintiffs’ attorney rectify these matters
before proceeding
with the applications, to which he agreed.
Accordingly, orders were granted in both consolidation applications
postponing those
matters and directing those plaintiffs to pay the
costs occasioned by such postponements, including the costs of two
counsel. It
is alleged that, thereafter, the plaintiffs’
attorney asked lead counsel for the applicants to assist him in
identifying
those cases in which the plaintiffs were deceased. He was
invited to contact lead counsel, which invitation he apparently did
not
take up.
[67] Despite this, and in due course, notices in terms
of
Rule 15(3)
in which was sought to substitute the plaintiffs in
those matters with new plaintiffs was served upon the applicants'
attorney
of record in twelve of the matters. In this regard, the
founding affidavit proceeds as follows:
"I state that it is not apparent how the respondents' attorney
could have been taking instructions from the deceased plaintiffs
in
the above matters before the substitution of the new plaintiffs, and
that serious concern must exist as to whether any such
instructions
have been or are being issued at all. Furthermore, as is apparent
from the affidavit annexed hereto of ISLAND SIQITI
MAQOMA, there is
at least one further plaintiff, namely Nomatshawe Maqoma, case no
600/99, who has been deceased for a considerable
time, and on whose
behalf the respondents' attorney continues to purport to act. This
plaintiff was purportedly an applicant in
the Mphahlwa consolidation
application, and a costs order was obtained against her along with
other applicants in that application,
but she was long deceased when
that application was launched. The founding affidavit in that
application was deposed to by the
ubiquitous THEMBILE XALISA who
averred in paragraph 2 thereof as follows:
"I depose to this affidavit on behalf of the applicants in this
application being duly authorized by them to do so".
[68] A further averment contained in that affidavit
which is of significance to this application is to be found at
paragraph 9 thereof,
where the deponent states:
"After the judgment on the 11 consolidated matters aforesaid,
all the plaintiffs in the rest of the matters decided to pursue
their
pending claims that had been waiting on (sic) the wings for
finalization of the 11 consolidated matters. They decided to
further
amend their combined summonses before proceeding to trial. The
plaintiffs, however, decided that an amendment be pursued
in respect
of one Tracor matter such matter being my matter and of one QIS
matter such being the matter of NTOMBOZI SIBOZO so that
once the
process of amendment in our matters succeeds, the respondents'
attorney would be requested to agree that the combined
summonses in
the rest of the Tracor and QIS matters be amended by consent in line
with the amendment effected in our two matters.
It is not apparent how these averments could have been true in
respect of at least the abovementioned deceased plaintiffs. However,
it is plain that the case advanced on behalf of all the plaintiffs is
that the continued abortive applications for the amendment
of their
pleadings form part of a strategy common to all the Respondents as
plaintiffs, and with which they identify themselves."
[69] Subsequent to the postponement of these matters and
on 22 January 2010, the plaintiffs' attorney filed a notice of
withdrawal
of some of the applicants in the Mpahlwa application for
consolidation. However this application, the Dintsi consolidation
application
and the applications for amendment of the pleadings
remain extant.
[70] On 28 April 2010, the plaintiffs' attorney served
an application in the name of Pumla Mphahlwa and 166 others for leave
to
intervene as co-applicants in the Mpahlwa consolidation
application. This application was served on the offices of X M Petse
Incorporated
who had previously represented the defendants but, by
this time, had withdrawn as such. Precisely why Mpahlwa sought to be
joined
as a co-applicant in an application in which she was already
cited as the first applicant, was not explained. This application for
leave to intervene was set down for 6 May 2010, but not enrolled. On
14 May 2010 it was again served, this time at the offices
of the
State Attorney, recording the date of set down as being 6 May 2010, a
date which had already, by then, come and gone. This
application has
subsequently not been proceeded with.
RECOVERY OF COSTS
[71] The applicants have also described in their
founding affidavit the significant problems that their
representatives have encountered
in their attempts at recovering
costs from the plaintiffs. As will be evident from the foregoing, due
to the slew of litigation
in these matters, such costs have become
significant. As early as 2008, returns of non-service were received
from the Sheriff in
respect of a number of plaintiffs which prompted
the applicants’ then attorney to seek accurate information
regarding the
whereabouts of certain plaintiffs in order to proceed
with execution. These inquiries appear to have been assiduously
avoided by
the respondents' attorney.
[72] The service of writs of execution issued in respect
of a multiplicity of cases could only be successfully effected in
three
instances as the vast majority of the plaintiffs' addresses
were either incorrect or fictitious, as appears from the returns of
non-service. Furthermore, and of significance, a return of
non-service was received in respect of the plaintiff Sibozo, the
plaintiff
who brought repeated unsuccessful applications for
amendment of the pleadings resulting in great cost to the applicats.
[73] The plaintiffs’ case in reply to the
applicants' allegations with regard to the recovery of costs appears
to be twofold:
firstly, it is suggested that the returns of service
upon which the applicants rely and which have been put up as
annexures in
this matter, constitute inadmissible hearsay and,
secondly, the addresses that have been given in the plaintiffs'
combined summonses
are, indeed, correct and not fictitious. As
pointed out by the applicants, should there not be a stay of these
proceedings, the
defendants are obliged to continue resisting the
flow litigation from the plaintiffs with no prospect of ever
recovering their
costs.
[74] The defendants have not, furthermore, been able to
recover the taxed costs which were awarded in their favour by Kroon J
in
the Twani case
de bonis propriis
against the plaintiffs' attorney, which order was made
on 3 March 2005, a matter to which I shall return later.
THE RESPONDENTS' (PLAINTIFFS’) CASE
[75] The answering affidavit has been deposed to by the
respondent Tembile Xalisa. Apart from stating that he is an adult
male and
a
de facto
ex
employee of the former Transkei Agricultural Corporation Limited, he
does not disclose his level of education. In that affidavit
he has
alleged that he deposed to the affidavit "
on
the request of our attorney, in the interest of the rest of the
respondent's and in my capacity as one of the respondents
."
Nowhere does he allege that he indeed acted with the authority of the
other plaintiffs. There are no confirmatory affidavits
from the other
plaintiffs and, although a large portion of the affidavit deals with
matters to which the plaintiffs’ attorney
was privy, no
confirmatory affidavit has been placed before the court by such
attorney.
[76] The answering affidavit, a document of 111 pages,
is certainly not a document which one would expect from a layman to
the law.
It is exceptionally difficult to discern from this document
that which is admitted and that which is disputed in the founding
affidavit.
It is full of unbounded legal argument and takes no heed
of the warning given in 1996 that the time was long "
overdue
for a return to a much more disciplined form of practice
"
5
.
For example, near the commencement of the affidavit is a heading
"
Preliminary points in limine
"
and under that a further heading, "
Ad
permanent or temporal stay of proceedings
".
There follows some 21 pages in small print of extensive argument as
to why the stay of proceedings should not be granted.
Even in this
regard it is difficult to tell whether the preliminary points, or
points
in limine
, are
complete at that point as thereafter, and once again, follow another
6 pages of legal argument.
[77] The balance of the answering affidavit, insofar as
can be ascertained, appears to be devoted to an argument that the
plaintiffs
are indeed possessed of a cause of action, despite the
fact that their cases as currently pleaded were found to be entirely
without
substance in the Twani matter. As far as disputes of fact are
concerned, it is so that in numerous instances the answering
affidavit,
in response to allegations in the founding affidavit,
disputes such. However, on a further reading of the lengthy
responses, in
many instances it becomes abundantly clear that such
disputes are not disputes of substance but are disputes which are
based, in
the main, on evidence which can only be regarded as hearsay
as the deponent refers to the actions of his attorney. In other
instances,
it is clear that the disputes raised are not genuine
disputes of the material facts pleaded by applicants.
[78] In this regard, the majority of the allegations
made by the applicants in the founding affidavit are supported to the
hilt
by written documentation in the form of extensive annexures. In
my view, the only material dispute of fact which arises from the
answering affidavit is the denial that an agreement was concluded
between the parties as has been described in paragraphs 30 -
33
above.
[79] The allegations of the applicants in this regard
are to the effect that they, in the form of their attorney,
approached the
legal team of the defendants with a suggestion that
they reach an agreement with regard to consolidation and a test case.
The deponent
to the answering affidavit states that their attorney
was indeed approached by the applicants’ legal representatives
with
a request that they agree to an expansion of the consolidated
case to 28 plaintiffs, purportedly to accommodate more
representativity.
He then proceeded to state:
"We agreed to this expansion with the hope that the consolidated
case would then be a test case such that if it succeeds,
the rest of
the matters would succeed and if it fails, the rest of the matters
would be withdrawn. The consolidation of twenty
matters was expanded,
by means of a court order by consent, to twenty-eight matters. This
was in 2002."
[80] In apparent pursuance of this ideal, the deponent
stated further:
"Upon the consolidation of twenty-eight matters being achieved,
our attorney, duly instructed by ourselves, wrote a letter
to the
applicants' attorneys requesting that the judgment in the
twenty-eight matters be held to bind on the remaining matters
which
were not to go for trial giving effect to what he thought of the
whole idea of using categories and expanding the consolidated
action
of twenty plaintiffs to twenty-eight plaintiffs. The remaining
matters, in terms of the said request, would be withdrawn
if the
plaintiffs in the consolidated action of twenty-eight matters failed
and the applicants would pay the plaintiffs in the
remaining matters
if the plaintiffs in the consolidated action of twenty-eight matters
succeeded. Our request was met with a flat
refusal by the applicants'
legal team. They preferred a situation where the parties retain their
options but only agree that the
judgment in the consolidated action
of twenty-eight plaintiffs just informs the parties of the remaining
actions as to what to
do with the actions in the face of the judgment
in the consolidated action."
[81] Apart from this, the answering affidavit does not
deal with the allegations made by the applicants as to the nature of
the
agreement concluded by the parties which is reflected in the
affidavit of their attorney in support of the application for
consolidation
relating to the test case in the Twani matter, as
summarized in paragraphs 31 - 32 above. The applicants' reply to the
foregoing
was to, indeed, point this out. The deponent to the
replying affidavit proceeded to say the following:
"Once again, the deponent disputes the veracity of the averments
of his attorney, and it is clear that his attorney cannot
continue to
represent him or, by necessary inference, the remainder of the
Respondents whose case the deponent purports to advance.
I have no
personal knowledge of the letter purportedly written by the
Respondents' attorney, and it is instructive that no copy
of such
letter is attached to the answering affidavit. It is further
instructive that there is no confirmatory affidavit of the
Respondents' attorney, and the averments contained herein are
accordingly hearsay and fall to be disregarded. The defendant further
does not indicate who the "applicants’legal team" are
who are alleged to have met the unsubstantiated proposal
with a flat
refusal, and I am accordingly unable to deal with these vague and
embarrassing averments, which are not admitted."
DISPUTES OF FACT
[82] As I have indicated, a number of matters raised by
the applicants have been disputed by the plaintiffs. In my view, most
of
these disputes are, as I have mentioned, either groundless in view
of the fact that the majority of the allegations made in the
founding
affidavit have been supported by an extensive array of documentation,
or are immaterial to this application. Other disputes
which may have
bordered on being material are matters which clearly reside within
the sole knowledge of the attorney acting for
the respondents and are
thus hearsay.
[83] What clearly cannot be disputed are the main
milestones in this matter as succinctly set forth in the founding
affidavit. The
many, and extensive, applications which have been
brought to court in this matter and the many judgments delivered and
annexed
to the founding affidavit, simply cannot be wished away. Of
great significance, is the fact that the respondents accept, as they
have to, that a select group of matters, agreed to be representative
of the various categories of plaintiffs and their causes of
action,
came to trial before Mr. Justice Kroon in the Twani matter. That is a
matter of record. The extensive judgment delivered
by Kroon J in the
matter is also not disputed, and the findings therein are, once
again, a matter of record. They reflect that
each and every variation
of the plaintiffs' causes of action were without foundation and that
the defences raised by the applicants
thereto, were solid. It is also
not disputed that a fully argued application for leave to appeal was
refused by Kroon J and that
both the Supreme Court of Appeal and the
Constitutional Court refused leave to appeal.
[84] As indicated earlier, there is in my view only one
material dispute of fact in this matter, that being the question as
to whether
or not an agreement as averred by the applicants was
indeed concluded between the parties which set the scene for the
Twani trial.
As I have indicated, the plaintiffs appear to simply
deny that such an agreement was concluded. There is no affidavit in
support
of this denial filed by their attorney despite the fact that
the applicants have relied on an affidavit in the consolidation
application
deposed to by the plaintiffs’ very same attorney as
founding the basis for this agreement. It seems that he (the
Plaintiff’s
attorney) deliberately refrained from providing
such an affidavit as he personally appeared to argue the matter
before me, a matter
I shall deal with more fully later. On this basis
alone, this dispute must be resolved in favour of the applicants.
[85] Furthermore, it is trite that:
"…where the allegations or denials of the respondent are
so far-fetched or clearly untenable …. the Court is
justified
in rejecting them merely on the papers…"
6
[86] In my view this is a matter where, in the
circumstances, the effective denial is indeed so far-fetched or
clearly untenable
that it can be rejected out of hand on the papers.
There is no explanation whatsoever as to why the plaintiffs’
attorney,
Mr. Tshiki, would, in 2002, on oath and in an affidavit
founding an application for a particular order before the High Court,
state
that such an agreement existed when it in fact did not. Had
such an agreement indeed not existed, the averments in his affidavit
would have amounted to perjury. Furthermore, the fact that the trial
proceeded for such a length of time before Kroon J on this
very basis
is further grist for the mill in this regard. It is clear on a
reading of the judgment of Kroon J that he was fully
alive to the
fact that this agreement indeed existed, hence the fact that he dealt
with all the defences raised by the applicants
as defendants therein
with the very purpose of ensuring that, in my view, there would be
finality to this extensive litigation.
Indeed, he alluded to this
when he said in his judgment in the application for absolution:
"Prior to the commencement of the hearing and the present
proceedings two applications were successfully brought for an order
for consolidation of actions. The purpose behind the application was
stated to be the attainment of a representative spread of
the
different categories of Tracor and Qamata Irrigation Scheme employees
who had instituted action, the decisions in which would
inform the
attitudes to be adopted in the remainder of cases."
[87] He furthermore confirmed this in his main judgment.
Finally, this point is underscored by the deponent to the plaintiffs'
answering
affidavit as quoted above in stating that the respondents
instructed their attorney to attempt to reach an agreement which
would
have the effect of curtailing these protracted proceedings.
[88] This dispute must clearly be resolved in favour of
the applicants and I accordingly hold that such an agreement was
indeed
concluded between the parties.
[89] I should at this stage pause to mention that this
is a clear dispute raised on the papers in that the very existence of
the
agreement was denied. Furthermore, as I shall deal with below, in
the application for an amendment by Xalisa, Xalisa also denied
that
this agreement had been concluded. However, despite all this, during
the course of argument and when taxed in this regard
by me, Mr.
Tshiki ultimately stated that the plaintiffs’ defence was not a
denial that the agreement was in fact concluded,
but related to the,
in his words, "import" of the agreement. This despite the
fact that extensive documentation and argument
had up to that point
been directed to this very question and the fact that the deponent to
the answering affidavit had, in unambiguous
terms, denied the very
existence of this agreement.
[90] However, the matter does not end there. In the
answering affidavit, the deponent has raised a further alleged bar to
the application
of this agreement in the present matter. It is
alleged that there exists a special defence of
res
judicata
by virtue of the findings made by
Dawood J in her judgment mentioned in paragraph 57 above. In that
judgment, she dealt with the
application for an amendment by Xalisa
7
.
The defendants in that matter averred that in bringing that
application Xalisa was in breach of the agreement which led to the
consolidation of the matters in the Twani case, and, on this basis
alone, ought to have been dismissed. Dawood J proceeded to state
the
following:
"[iv] The Applicant disputed that such an agreement was made.
[v] There is a dispute of fact on this issue.
[vi] I do not deem it prudent to deal with the issue of whether or
not there was an agreement which would effectively preclude
the
Plaintiff from pursuing his claim further.
[vii] The Defendant would be free to raise this as a point in limine
in the main action.
[viii] This is not a point, considering the need for oral evidence,
that can and should be dealt with in an application for leave
to
amend.
[ix] I accordingly make no findings on this issue."
[91] It seems to me that the question raised by the
plaintiffs is more a question of issue estoppel. In this regard,
where the decision
set up as
res judicata
involved a judicial determination of some question of
law or issue of fact in the sense that the decision could not have
been legitimately
or rationally pronounced by the previous court
without determining that question in a particular way, the party to
the previous
litigation against whom that question was decided cannot
in later proceedings dispute that issue
8
.
[92] It is abundantly clear from the portion of the
judgment of Dawood J quoted above that she did not decide this issue
at all.
Furthermore, despite her not making a finding on this issue
in favour of the defendants, she found in favour of the defendants
for other reasons and dismissed the applications for amendment
brought by Xalisa and Sibozo, with costs. There is, accordingly,
absolutely no substance whatsoever in this contention by the
plaintiffs.
THE LAW
[93] There has been no real challenge by Mr. Tshiki to
the contention that where a true compromise has been reached by the
parties
to an action, this has the effect of
res
judicata
9
.
As indicated earlier, it appears that his final submission in this
regard, despite denials of the existence of the agreement in
the
answering affidavit, is that the plaintiffs do not agree with the
interpretation placed on the agreement by the applicants.
[94] The effect of a compromise agreement was dealt with
in the matter of
Hlobo v Multilateral Motor
Vehicle Accidents Fund
10
as follows:
“
A compromise (or transactio) arrived at
between litigants is a well-established measure. Our courts encourage
parties to deal with
their disputes in this way and the rules decree
that compromises must be sought. When concluded such a compromise
disposes of the
proceedings. Estate Erasmus v Church
1927 TPD 20
at
23. What is more, in this country (as in England) the conduct of a
party's case at the trial of an action is in the entire control
of
the party's counsel. Counsel has authority to compromise the action
or any matter in it unless he has received instructions
to the
contrary. In England his apparent authority to compromise cannot be
limited by instructions unknown to the other party.
Halsbury's Law of
England 4th ed vol 37 para 511. Counsel's general authority in South
Africa is similar. R v Matonsi
1958 (2) SA 450
(A) per Schreiner JA
at 456A - H and Benjamin v Gurewitz
1973 (1) SA 418
(A) at 428E - F.
At the stages prior to the assumption of control by counsel the
attorney of record stands in the same position.”
[95] In
MEC for Economic Affairs,
Environment and Tourism, Eastern Cape v Kruizenga and Another
11
the following was stated in this regard:
"Admissions of fact made at a
rule 37
conference, constitute
sufficient proof of those facts. The minutes of a pre-trial
conference may be signed either by a party or
his or her
representative.
Rule 37
is thus of critical importance in the
litigation process. This is why this court has held that in the
absence of any special circumstances
a party is not entitled to
resile from an agreement deliberately reached at a
rule 37
conference. And when, as in this case, the agreements are confirmed
by counsel in open court, and are then made a judgment or order
of a
court, the principle applies with even more force."
[96] And later, with regard to the prejudice where an
attempt is made to resile from a compromise
12
:
"The respondents and their counsel prepared for trial on the
basis of the concessions and on the issues which remained in
dispute
- not on the merits or on the heads of damages which were agreed
upon. Moreover, the appellant has after all this time
not even
established a defence. To allow the appellant to resile from these
agreements, made over a period spanning 18 months,
would defeat the
purpose of
rule 37
, which encourages settlements, and severely hamper
the conduct of civil trials. It would mean practically that attorneys
can no
longer assume that their colleagues are authorised to make
important decisions in the course of litigation without the
principal's
independent confirmation. This cannot be countenanced."
[97] Likewise, as I understood the argument by Mr.
Tshiki, he did not seek to argue that the High Court does not have
the power
to order a stay of proceedings in appropriate
circumstances. Indeed, the Constitution itself in the form of section
173 impliedly
recognizes this. Section 173 states:
"
Inherent power.
-The Constitutional Court, Supreme Court
of Appeal and High Courts have the inherent power to protect and
regulate their own process,
and to develop the common law, taking
into account the interests of justice."
[98] A component of this power is the High Court's
inherent jurisdiction to prevent an abuse of its process by staying
proceedings
in certain circumstances. This power should clearly be
exercised in a circumscribed manner and only in exceptional
circumstances
13
.
It should be exercised with great caution and in clear cases as the
courts are open to all and will only be closed in exceptional
circumstances
14
.
Due regard must also be had to section 34 of the Constitution which
provides for the right to access to the courts.
[99] In Hudson v Hudson
15
De Villiers JA stated the position thus:
“
That every court has the inherent power to
prevent an abuse of the machinery provided for the purpose of
expediting the business
of the Court admits of no doubt. That was
laid down by BOWEN, L.J in Willis v Earl Beauchamp, 11 P.D at page 63
where he says:
-
"I think this action ought to be stayed as being a vexatious
action within the meaning attached to that word by the Courts,
because it can really lead to no possible good. It does not fall
under the rule as the LORD JUSTICE has said, but the rules, as
we
have pointed out more than once, do not, and that particular rule
does not, deprive the Court in any way of the inherent power
which
every Court has, to prevent the abuse of legal machinery which would
occur, if for no possible benefit the defendants are
to be dragged
through litigation which must be long and expensive.""
[100] What constitutes an abuse of the process of court
and found sufficient ground for the stay of an action within the
ambit of
the principles which I have already dealt with, falls to be
determined by the circumstances of each case
16
.
Proceedings will be stayed when they are frivolous or vexatious or
when their continuance amounts to an injustice or a serious
embarrassment to one or other of the parties and the case will be
regarded as vexatious when the action is hopeless or success
thereon
becomes impossible
17
.
[101] Furthermore, as submitted by Mr. Smuts:
"
If a litigant repeatedly and persistently
brings proceedings against the same person on the same cause of
action and in respect
to the same subject matter, it would be
inequitable to force the defendant to file repeated pleas of
res
judicata
or to make a succession of applications to stay
proceedings when the costs of the previous proceedings have not been
paid. A defendant
is entitled to more effectual protection against
continued unsuccessful onslaughts in respect of the same dispute.
That protection
may take the form of a general order curtailing in
some respects the plaintiff's ordinary rights of litigation in the
matter."
18
[102] An attempt to retry an issue which has already
been decided by merely altering the form of action, amounts to an
abuse of
the process of court and is vexatious
19
.
Carlisle J articulated this principle as follows:
"In his statement of defence the appellant set up the same case
as that on which he had been defeated in the action in which
he was
the plaintiff. The Court exercised its inherent jurisdiction to
strike out a statement of defence as frivolous and vexatious,
and an
abuse of the process of the Court, upon the ground that the appellant
could not raise the very same question which the Court
had already
decided in a separate action.
Mr. Knox, for the respondent, argued that the present claim was
different from the claim made in the previous case. No doubt that
is
true in the sense that the relief asked for is different because the
parties are different. But the claims and defences in each
case flow
from one main issue, viz., whether the original agreement was an
agreement of sale or not, and they depend upon one and
the same set
of facts, upon which, as I have said, the decision of an experienced
Judge has been obtained.
For the respondent to attempt to retry an issue which has already
been decided merely by changing the form of his action is an
abuse of
the processes of the Court, and is vexatious;"
20
[103] It is also so that the principle of finality in
litigation should generally be preserved rather than eroded –
interest reipublicae ut sit finis litium
21
.
In this context, Nugent JA described the importance of
this principle in the following manner:
"The defence of lis alibi pendens shares features in common with
the defence of res judicata because they have a common underlying
principle, which is that there should be finality in litigation. Once
a suit has been commenced before a tribunal that is competent
to
adjudicate upon it, the suit must generally be brought to its
conclusion before that tribunal and should not be replicated (lis
alibi pendens). By the same token the suit will not be permitted to
be revived once it has been brought to its proper conclusion
(res
judicata). The same suit, between the same parties, should be brought
only once and finally."
22
[104] The Rules of the High Court themselves clearly
countenance what can only amount to, in most circumstances, either a
stay of
proceedings or judgment in favour of a party without a
hearing. A clear example of this is Rule 30A (1) which states:
"Where a party fails to comply with these rules or with a
request made or notice given pursuant thereto, any other party may
notify the defaulting party that he or she intends, after the lapse
of 10 days, to apply for an order that such rule, notice or
request
be complied with
or that the claim or defence be struck out
."
(My emphasis)
[105] Furthermore, this court has inherent power to
dismiss an action on account of a delay in its prosecution by the
plaintiff.
The circumstances under which the court may do so depend
on the period of the delay, the reasons therefor and the prejudice
suffered
by the other party
23
.
[106] Finally, it is not an essential pre-requisite for
the court to find that the relevant proceedings are vexatious before
it
may grant a stay thereof, the demands of equity are the decisive
factor
24
.
I would venture to add that in view of the provisions of section 173
of the Constitution as quoted above, the deciding factor,
in
considering all the aforementioned principles as to whether to grant
a stay, should be whether it is in the interests of justice
to do so.
INTERPRETATION OF THE AGREEMENT
[107] As stated in paragraph 32 above, the plaintiffs’
attorney (Mr. Tshiki), in his founding affidavit in the application
for a consolidation order pursuant to the agreement reached by the
parties prior to the Tiwani trial, stated thus:
"
10. I respectfully submit that it is in the
interests of all concerned, including the interests of the
administration of justice
that an order be granted in terms of the
Notice of Motion.
A decision on a representative sample has every
prospect of avoiding or at least curtailing, further litigation
."
(My underlining)
[108] The plaintiffs, in their answering affidavit in
this matter, stated that they had given instructions to their
attorney to
the effect that he should attempt to reach an agreement
in terms of which the 28 matters referred to trial would be regarded
effectively
as a test case and that this would result in finality. In
the deponent’s words as quoted above which bear repeating:
"We agreed to this expansion with the hope that the consolidated
case would then be a test case such that if it succeeds,
the rest of
the matters would succeed
and if it fails, the rest of the matters
would be withdrawn
. The consolidation of twenty matters was
expanded, by means of a court order by consent, to twenty-eight
matters. This was in 2002."
(My emphasis)
[109] In view of this coupled with the denial in the
papers that any agreement as alleged by the respondents was concluded
(although
Mr. Tshiki in argument appeared to shift his ground in this
regard), and in view furthermore the fact that Kroon J dealt with
every
possible defence thoroughly and fully in his judgment, one can
only but conclude that the intent of this agreement was indeed to
reach finality in this plethora of litigation. In view of the
principle that finality should be reached in litigation, as expressed
above, and which would have been present in the mind of the lawyers
in concluding this agreement on behalf of their clients, it
seems to
me that it is disingenuous of the plaintiffs to subsequently argue
that the intent of the agreement was effectively to
obtain an opinion
which would serve to provide further grounds for continued
litigation. Whilst the agreement could obviously not
have
countenanced a restriction on the right of the plaintiffs to appeal,
once every avenue of relief available to them in the
appeal process
had been refused, it must, surely, have been countenanced that that
would have been an end to all these matters,
including all those that
were not consolidated in the Twani trial.
STAY OF PROCEEDINGS?
[110] Even if I am wrong in my interpretation of the
agreement as applied to the facts of this matter that is certainly
not the
end of the matter. There can be little doubt but that the
agreement itself must fall into the mix of factors which should be
considered
in deciding whether or not there are "exceptional
circumstances" in this matter and whether it is in the interests
of
justice to grant a stay of these proceedings as moved for by the
applicants.
[111] In my view, the very existence of the agreement
together with the meticulous and thorough judgment of Kroon J which
dealt
with all possible defences raised by the plaintiffs during the
course of the extended Twani trial (even if the agreement did not
specifically state that this was a test case which would result in
finality one way or the other) are very strong factors pointing
towards the very existence of "exceptional circumstances"
in considering whether or not to grant a stay. When one adds
into the
mix the fact that the plaintiffs have, subsequent to the delivery of
that judgment, attempted on a number of occasions
to amended their
particulars of claim to introduce a new cause, or new causes, of
action, which attempts have repeatedly been found
wanting by the
courts, such exceptional circumstances must surely exist.
[112] As submitted by Mr Smuts in this regard, Mr
Tshiki's argument on behalf of the plaintiff's amounts to:
"-that there is no merit in the case we advance because we
haven't responded to a case which isn't before court which is an
unanswerable case without any evidence to support it"
[113] What has also become clear from the history of
this matter is that over a period of some 13 years an extraordinary
amount
of time, money and effort has been spent in resisting claims
which were repeatedly and resoundingly found to be entirely without
merit. When such was spelled out to the plaintiffs by way of the
aforementioned judgment by Kroon J, further repeated attempts
were
made to follow a new purported cause which had not been raised before
and in regard to which there appears to be no evidence
to support it,
and which attempts have time and again been shown to be lacking in
merit.
[114] In summary, the factors which I believe compel me
to conclude that this is a matter where a stay of proceedings would
be in
the interests of justice are the following:
(a) The fact that there were 41 interlocutory
applications preceding the commencement of the trial in the Twani
matter all of which
were almost exclusively occasioned by the
inability of the plaintiffs to formulate their cases appropriately;
(b) The fact of the agreement which preceded the
commencement of the Twani matter and on the basis of which that
matter was commenced
and conducted, as interpreted above;
(c) The failure of every claim advanced by the
plaintiffs in the Twani matter and, in particular, the finding that
the discharge
forms signed by all of the Tracor plaintiffs
constituted a waiver of their rights to pursue the actions instituted
by them in consequence
of the promulgation of Proclamation 10 of
1997;
(d) The failure of the application for leave to appeal
the Twani matter at the High Court, Supreme Court of Appeal and
Constitutional
Court levels;
(e) The fact that the current particulars of claim are
in all material respects reflective of the claims pursued with a
singular
lack of success in the Twani matter;
(f) The fact of the repeatedly failed attempts pursued
in the name of certain plaintiffs, but apparently on behalf of all
the plaintiffs,
to plead an entirely new case on behalf of the
plaintiffs many years after the institution of their actions;
(g) The inability of the plaintiffs some thirteen years
after the institution of their actions to plead a different case
which is
sustainable at law;
(h) The failure of the plaintiffs to honour the
multiplicity of costs orders granted against them;
(i) The question of prejudice occasioned to the
applicants as a consequence of the extensive delay in prosecuting the
plaintiffs’
cases over a period of some 13 years.
[115] In all these circumstances, I am satisfied that
the applicants have made out a strong case establishing that the
continuation
of these matters is nothing short of vexatious and
amounts to an abuse of the process of this court. There are clearly
exceptional
circumstances present in this matter and, in my view, it
is in the interests of justice, and indeed my duty, to prevent a
furtherance
of such abuse.
[116] Finally, as has been alluded to a number of times
during the course of this judgment, many of the actions of the
plaintiff's
attorney, Mr. Tshiki, during the course of this
litigation may well amount to unprofessional conduct on his part and
ought to be
referred to the Law Society for further consideration.
Without restricting the list of potential infractions the following
come
to mind:
(a) In the Twani judgment, which was delivered on 3
March 2005, Kroon J ordered Mr. Tshiki to pay the costs of three days
of the
hearing
de bonis propriis
. It has been alleged by the
applicants that a writ of execution was issued against Mr. Tshiki
pursuant thereto which writ was not
satisfied and consequently office
furniture at the offices of Tshiki and Sons Incorporated was placed
under attachment. In response
thereto, Mr. Tshiki penned a letter
dated 29 February 2008 to the Deputy Sheriff, Mthatha, claiming that
the company of Tshiki
and Sons Incorporated does not own any assets
and that the goods under attachment were the property of his wife. At
the outset
of the argument in this matter, I asked Mr. Tshiki to
explain this conduct and his response was to the effect that these
costs
were only taxed during 2010 and that there are review
proceedings pending in respect thereof. Apart from the fact that the
applicants
appear not to know anything about such review proceedings,
the statement that the costs were taxed during 2010 does not square
with the fact that he wrote a letter in February 2008 making the
statement set out above. Furthermore, one gains the distinct
impression
that he is attempting to evade his responsibilities in
this regard;
(b) During the Twani trial, the plaintiffs in that trial
were represented by an advocate on Mr. Tshiki's instructions. During
the
course of that trial, Mr. Tshiki was called to testify as a
witness on behalf of the plaintiffs. He has subsequently continued to
appear in court on behalf of the remaining plaintiffs despite the
fact that he was effectively a witness in their cause. In the
instant
application, the deponent to the answering affidavit made numerous
references to the actions of their attorney, Mr. Tshiki,
and yet no
confirmatory affidavit was filed by him. Of importance in this regard
is the fact that this deponent denied the existence
of the agreement
alleged to have been concluded with the applicants by Mr. Tshiki
acting on behalf of the plaintiffs as dealt with
above. Even though
he did not file a confirmatory affidavit, it is clear that he was
instrumental in drafting this affidavit and,
accordingly, this
denial. This smacks of unprofessional conduct in that he was clearly
aware of the earlier agreement which he
had recorded in an affidavit
placed before court;
(c) There are further allegations made by the plaintiffs
in their replying affidavit pointing to falsities in the answering
affidavit
the facts of which were clearly known to Mr. Tshiki who
drafted this affidavit. An example of this is set out in paragraph 85
at
page 1830 of the replying affidavit which deals with the written
waivers;
(d) Doubt was clearly raised as to the authority of Mr.
Tshiki to persist in this litigation on behalf of all the plaintiffs.
Despite
various challenges in this regard, no clear proof of such
authority was provided, especially in some cases where it appears
that
the plaintiffs have died;
(e) This opposed motion was set down to be argued over a
period of two days. Reasonable and sufficient notice was given to the
plaintiffs’
attorney of this and of the set down of the matter.
Despite this, on the first morning of the hearing Mr. Tshiki
intimated to me
that he was not available on the following day as he
had an appeal in the SCA. I ordered that the matter proceed
nonetheless. As
it turned out, argument in the matter finished at
approximately 4pm on the first day. However, shortly after 3:30pm and
whilst
Mr Smuts was on his feet in reply, Mr Tshiki rose and informed
the court that he was leaving as he was
"rushing for the
flight in East London
…". He then left court despite
my protestations leaving Mr Smuts to finalize his reply in Mr
Tshiki’s absence.
[117] Accordingly, I make the following order:
1. The actions instituted in this court by the first
respondent and those respondents cited in annexure "NoM 1”
to the
notice of motion as plaintiffs against the Premier for the
Province of the Eastern Cape and the Member of the Executive Council
for Agriculture and Land Affairs, Eastern Cape, as defendants, under
case number 107/99 in respect of the first respondent and
those case
numbers set out in annexure "NoM 1" to the notice of motion
in respect of the further respondents, are hereby
permanently stayed;
2. The respondents are to pay the costs of this
application jointly and severally, the one paying the other to be
absolved, which
costs are to include the cost of two counsel;
3. The Registrar of this court is directed to ensure
that a copy of this judgment is transmitted to the Law Society for
their consideration.
JUDGE OF THE HIGH COURT
DELIVERED ON : 08 AUGUST 2013
COUNSEL FOR APPLICANTS : Mr Smuts SC with
: Mr Msiwa
INSTRUCTED BY : State Attorney
COUNSEL FOR RESPONDENTS : Mr Tshiki
INSTRUCTED BY : Tshiki & Sons
1
Case
No. 460/99 (Transkei Division) – a judgment of Kroon J
delivered on 3 March 2005
2
No.
10 of 1985 (Transkei)
3
Cekeshe
and Others v Premier, Eastern Cape and Others 1998 (4) SA 935 (Tk)
4
Premier,
Eastern Cape, and Others v Cekeshe and Others
1999 (3) SA 56
(TK D)
5
Reynolds
NO v Mecklenburg (PTY) LTD
1996 (1) SA 75
(WLD) at 78G -80A
6
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
231
7
She
also dealt the Sibozo application in this judgment as that judgment
was of equal application to that matter.
8
Liley
v Johannesburg Turf Club
1983 (4) SA 548
(W) at 551 – 552
9
Gollach
& Gomperts (1967) (PTY) Ltd. v Universal Mills & Produce Co,
(PTY) Ltd
1978 (1) SA 914
(A)
10
2001
(2) SA 59
(SCA) at paragraph 10
11
2010
(4) SA 122
(SCA) at paragraph 6
12
Kruizinga
(supra, footnote 11) at paragraph 21
13
Western
Assurance Co v Caldwell's Trustee
1918 AD 262
at 274
14
Fisheries
Development Corporation of SA Limited v Jorgensen & Another;
Fisheries Development Corporation of SA Limited v AWJ
Investments
((PTY) Limited & Others
1979 (3) SA 1331
(W) at 1338
15
1927
A.D. 259
at 267
16
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
at 734D – 735 A
17
Western
Assurance Co v Caldwell's Trustee (supra, footnote 13) at 274;
Ravden v Beeten
1935 CPD 269
at 275
18
Cordery
v Union Government (Minister of Finance)
1918 A.D. 512
at 518
19
Burnham
v Fakheer
1938 NPD 63
; Niksch v van Niekerk & Another
1958 (4)
SA 435
(E)
20
Burnham’s
case (supra) at 67
21
Firestone
South Africa (PTY) Limited v Genticuro AG
1977 (4) SA 298
(A) at 309
22
Nestle
(South Africa) (PTY) Limited v Mars Inc.
2001 (4) SA 542
(SCA) at
paragraph 16
23
Molala
v Minister of Law and the Order
1993 (1) SA 673
(W); Gopaul v
Subbamah
2002 (6) SA 551
(D & CLD) at 558 A –B.
24
Hurter
v Hough en ‘n Ander
1989 (3) SA 545
(C) at 553C