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[2024] ZAFSHC 175
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Raleting and Another v Kose (2216/2023) [2024] ZAFSHC 175 (6 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
Case no: 2216/2023
In the matter
between:
MMAKO
RALETING
First Applicant
MMAKO
RALETING
N.O.
Second Applicant
[In his capacity as duly
appointed executor of the
estate of the late Sylvia
Mmampho Raleting]
and
MALITSEPISO
THULO
KOSE
Respondent
IN RE:
MALITSEPISO
THULO
KOSE
Applicant
and
MMAKO
RALETING
First Respondent
MMAKO
RALETING
N.O.
Second Respondent
CORAM:
HEFER AJ
HEARD
ON:
14 MARCH 2024
DELIVERED
ON:
06 JUNE 2024
[1]
The Applicants are seeking variation in
terms of Rule 42(1)(a) of the Uniform Rules of Court
of the costs pertaining to an order granted
by default, awarded against Applicants in favour of the Respondent
.
[2]
During August 2023, Van Zyl J, granted the
following order subsequent to the Applicants failing to oppose the
application by the
Respondent after personal service upon the
Applicants had been effected:
"It
is
ordered
that:
Part
A:
1.
The
First
and
Second
Respondent shall
allow
access
to
a
land
surveyor,
which
shall be appointed by the Applicant, to enter the premises of the
Respondents being Portion […], Erf […], F[…],
Free State Province, in order to do the necessary measurements and to
determine the exact beacons of the registered boundary line
as
depicted on the
Subdivisional
Diagrams LG Nr. 606/1919.
2.
The
Applicant
is
granted
leave
to
approach
the
abovementioned
Honourable
Court
at
a
later
stage,
on
the
same
papers
duly
amplified,
for
an
order
in
terms of Part
B
of
this
application.
3.
The First and Second
Respondents shall pay the costs of Part A of this application,
jointly and severally,
the one paying the other to be
absolved."
BACKGROUND
[3]
A synopsis of the facts which were
contained in the founding affidavit which served before Van Zyl J, is
set out below.
[4]
A certain Mr. Henning was the owner of both
properties of which the First Applicant and his late wife (the
Raletings) were the owners
of the one and the Respondent the owner of
the other.
These
two properties are adjacent to each other.
[5]
Because the residence of the Raletings had
burned down, Mr. Henning thought it prudent to offer his assistance
to the Raletings
in their time of need and agreed to have the
boundary fence/line between the two properties moved onto the
adjacent erf in order
to create more space for the Relatings to store
their belongings until such time as their home had been rebuilt.
This was during October 2004.
[6]
Once the Respondent purchased the property
where he is currently residing, Mr. Henning indicated to him that the
Raletings know
where the correct boundary fence/line would run and
that they would not have any problem to place the correct fence on
the correct
boundary line once again.
[7]
Once the Respondent became the sole owner
of his property, he approached the Raletings and informed them that
the initial agreement
with Mr. Henning had lapsed.
The Raletings then initially agreed that
Respondent appoint a land surveyor to determine where the exact
beacons of the boundary
fence/line were between the two properties.
[8]
However, it appears that a land surveyor
was not appointed at any stage. According to the Respondent he
requested assistance of
the Raletings to rectify the situation but to
no avail.
[9]
Eventually
Respondent
consulted with his attorney of record which
resulted in a letter being sent on behalf of Respondent during 2002
already.
In this
letter Applicant was referred to the relevant subdivisional diagrams
depicting the boundary of the properties concerned
as well as a
description of the beacons.
[10] The Applicants was
at that stage already requested to co-operate and allow the
Respondent to erect a boundary fence between
the two properties on
the boundary line as depicted on the diagrams.
[11]
It was also indicated to the Raletings that
should they refuse/fail to co operate, the Respondent intended
to approach Court
for the appropriate
relief in this regard.
[12]
It appears that thereafter the Raletings
still refused to rectify the situation.
In
his founding affidavit in the main application which served before
Van Zyl J, it is stated in particular that:
"Thereafter
the
Respondents
still refused to rectify the situation and to
allow the land surveyor access to the property in order for the
Applicant to move
the boundary line/fence back into its original
position."
[13]
However, the letter by the Respondent's
attorneys does not make mention of a request to allow a quantity
surveyor onto the Relatings'
property.
[14]
This resulted in a further letter which was
sent on behalf of the Respondent during June 2022 which then inter
alia stated as follows:
"We
are hereby affording you a final opportunity to inform our office
within
10 (ten) days after being
served with this letter, whether you are prepared to allow a surveyor
on your property to determine the
exact beacons of the boundary line.
Please
take note, that should you fail to adhere to this reasonable request,
we have instructions
to apply to the
High Court, Free State Division, for a declaratory order for the
following:
•
that
the appointed surveyor be allowed and instructed to enter your
premises to do the necessary measurements and to determine the
exact
beacons of the registered boundary
line
as depicted on the Subdivisional Diagram LG 606/1919;
•
that
our client and/or his duly appointed agents be allowed to demolish
the exciting boundary fence and to replace same with a new
fence on
the exact boundary line as per the surveyor's prescribed
measurements;
•
that
you bear the wasted costs of the High Court application on an
attorney and client scale as you wilfully and vexatiously disregarded
our client's real rights pertaining to his property."
[15]
Reference to the "wasted costs"
is obviously incorrect whereas at that stage and also untill the
default judgment has
been granted, there were no wasted costs.
Of importance however, is that the
Raletings were already at that stage made aware of the cost
implications.
[16]
Because the Raletings still, according to
the Respondent, refused to assist, the Respondent had no choice to
launch the application.
Part
A of such application provided for the relief as contained
in the order of Van Zyl J, whilst
Part
B
thereof,
in
broad
terms
provided
for
the
Respondent
to
be
allowed to demolish and or remove any encroachment on the
Respondent's property and replacing the encroachment and or existing
fence with a new fence on the exact and correct boundary line.
APPLICATION FOR
RECISSION OF JUDGEMENT
[17]
The Applicants' main contentions in support
of the application for recission of judgement as contained in the
present founding affidavit
are as follows:
"/
had laboured
under an impression that
a
costs order would not have been
granted against me as I have never opposed the application and I had
a
bona fide belief that my property had not encroached upon
the Respondent's property nor had I at any stage constructed any wall
which had encroached the Respondent's property.
I respectfully submit
that paragraph three (3) of the Order of Court was therefore
erroneously sought and erroneously granted.
Upon
being served
a
Notice
of Motion, I elected not to enter appearance to oppose his
application as I held
a
view
that the Respondent (Applicant in the main application) was within
his rights in approaching the Court for
a
relief regarding the disputed boundary
lines between our respective properties.
However,
I submit that it is not fair and just that the Second Applicant and I
be mulcted with
a
cost
order for an application that the Respondent brought in exercising
his right,
which
application,
the
Second Applicant
/(sic) did not
oppose."
[18]
In further support of the application,
Applicants also refer to the fact that according to a letter
addressed
by the
Respondent's
attorney
of record, dated after the order in respect of Part A had been
granted, the land surveyor appointed by the Respondent established
that there is no encroachment between the properties.
As such, the Applicants submitted that
Respondent should pay his legal costs, as the Applicants did not
occasion the costs he incurred
in exercising his rights to institute
legal proceedings.
[19]
In his answering affidavit in the present
application Respondent, however, refers
to
a
further
letter
relied
upon
by
the
Applicants
in
which
it
was
indicated
that
according
to the
appointed
quantity
surveyor,
the
property
of the
Applicants indeed encroaches upon the property of the Respondent.
[20]
It is important to mention however that
this aspect, namely
ex
post
facto
facts established subsequent to the
order granted by Van Zyl J, is not taken into consideration in the
present application.
[21]
According to the Respondent, the Applicants
in the present application were ordered to pay the costs of Part A of
the main application
because, had the Applicants assisted the
Respondent when called upon to do so since March 2022 there would not
have been a need
for the said application to be launched. With this
contention I agree.
APPLICATION IN TERMS
OF RULE 42(1)(A)
[22]
In
Kgomo
vs
Standard
Bank
[1]
Dodson
J,
confirmed the following principles governing recission under Rule
42(1)(a), namely:
"[1]
the rule must be
understood aga
inst its common
law background;
[2]
the basic principle at common
law is that once
a
judgment
has been granted, the judge becomes functus officio, but subject to
certain exceptions of which rule 42(1)(a) is one;
[3]
the
rule
caters
for
a
mistake
in
the
proceedings
; (own
emphasis)
[4]
the
mistake
may
either
be
one
which
appears
on
the
record
of
proceedings
or
one which subsequently becomes apparent from the information made
available in an application for rescission of judgment;
[5]
a
judgment
cannot be said to have been granted erroneously in light of
a
subsequently disclosed defence which was
not known or raised at the time of default judgment;
[6]
the error may arise in the
process of seeking the judgment on the part of the applicant for
default
judgment or in the process
of granting default judgment on the part of the court."
[23]
As
was stated by Leveson J, in
First
National Bank of SA Ltd vs Jurgens
[2]
"A
judgment to which a Plaintiff is procedurally entitled in the absence
of the Defendant cannot be said to have been granted
erroneously
as contemplated in the subrule in the light a
subsequently disclosed defence.
Such
defence cannot transform a validly obtained judgment into an
erroneous one."
[24]
The facts which served before Van Zyl J,
showed that the exact boundaries
of
the relevant registered boundary line had to be ascertained by a land
surveyor.
Although
the Respondent did not at any stage indicate in his evidence that he
attempted to arrange for a land surveyor to determine
such boundary
prior to approaching the Court in respect of the relief sought, the
facts show that the Applicants did not at that
stage (when the matter
served before Van Zyl J), dispute the allegations by the Respondent
to the effect
that had the Applicants assisted Respondent
when called upon to do so, there would not
have been a need for the application to be launched by the
Respondent.
Mr.
Raleting, in the present application, indeed concedes that he held
the view that the Respondent was within his rights in approaching
the
Court for relief regarding the disputed boundary lines between the
respective properties.
[25]
Mr. Raleting's incorrect impression or
belief that a cost order would not have been granted against the
Applicants as the Applicants
never opposed the application and he had
a
bona fide
belief that the applicant's property
did not encroach upon the Respondent's property, does not constitute
an error in the proceeding
as contemplated in Rule 42(1)(a).
An error of judgment by a litigant himself
cannot be construed as an error in proceedings.
Coupled with this, is the fact that it was
patently clear from the Notice of Motion which was personally served
on Mr. Raleting,
that separate cost orders in respect of parts A and
B of the application were sought by the Respondent.
[26]
What served before Van Zyl J, was evidence
to the effect that in the absence of opposition to Part A of the
application in regards
to both the merits as well as the costs,
the Respondent was entitled to his costs .
There was no error.
[27]
In the premises,
the Applicants are not entitled to a
variation of the order as sought.
Order:
Therefore, I make the
following order:
The application for
variation of the order of Van Zyl J, dated 10 August 2023, is
dismissed with costs.
HEFER AJ
Appearances on behalf of
the Applicant:
Mr MA Maoba
Instructed
by:
Maoba Attorneys Incorporated
C/O Hanlie Fourie
Attorneys
Bloemfontein
On behalf of the
Respondent:
Adv DC Hattingh-Boonzaaier
Instructed by:
Du Toit Louw Botha Attorneys
C/O
Hill McHardy & Herbst
Incorporated
Bloemfontein
[1]
2016
(2) SA 184 (G)
[2]
1993
(1) SA 245
(W) at 247D-E