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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case no: 62272/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED : NO
DATE: 4/03/2025
SIGNATURE:
In the matter between:
TRANSVAAL YACHT CLUB Applicant
and
KINGSLEY JACK WHITEAWAY SEALE First Respondent
ONTSPAN BELEGGINGS (PTY) LTD Second Respondent
HI FRANK COMPONENTS (PTY) LTD Third Respondent
SCHOEMANSVILLE OEWER CLUB Fourth Respondent
and
MINISTER OF WATER AND SANITATION Second Respondent
In reconvention
In re:
KINGSLEY JACK WHITEAWAY SEALE First Applicant
ONTSPAN BELEGGINGS (PTY) LTD Second Applicant
HI FRANK COMPONENTS (PTY) LTD Third Applicant
SCHOEMANSVILLE OEWERKLUB Fourth Applicant
and
MINISTER OF PUBLIC WORKS First Respondent
MINISTER OF WATER AND SANITAT ION Second Respondent
JUDGMENT
CILLIERS AJ:
[1] This application is the latest chapter in the history of this matter, which spans
for more than a century.
[2] The State owns a narrow strip of land on the eastern bank of the
Hartbeespoort Dam b etween the borderline and the boundaries of the adjacent
properties. This strip of State land has at least since 1925 been referred to as the
foreshore. It includes erven in the Schoemansville and Meerhof townships.
[3] The first respondent (Mr Seale) i s a director of the second respondent
(Ontspan Beleggings) and the third respondent (HI Frank Components). They own
properties that are situated adjacent, or in close proximity, the foreshore.
The history of litigation
[4] Mr Seale, Ontspan Beleggings, HI Frank Components and the fourth
respondent launched an application in this Court for orders declaring and enforcing
servitudal rights over the foreshore. They contended that they were entitled to the
enforcement of cont ractual rights to registration of the servitudes, alternatively that
they had acquired the servitudes by acquisitive prescription.
[5] In this Court, Davis J dismissed the application. An order for costs was made
against Mr Seale, Ontspan Beleggings, HI F rank Components and the fourth
respondent.1
[6] Dissatisfied with the order, Mr Seale, Ontspan Beleggings, HI Frank
Components and the fourth respondent appealed the order a quo, with leave from
Davis J to the Supreme Court of Appeal.
[7] In a reasoned j udgment and order, the Supreme Court of Appeal held that the
court a quo should have issued the declarator that was sought by Ontspan
Beleggings. The Supreme Court of Appeal held that the unreserved recognition by
the Second Respondent i.e., the Minister o f Water and Sanitation (the Minister) on
appeal of the servitude that attached to Portion 43 rendered the issue abstract or
academic and there was no need for a declarator to be issued in favour of Ontspan
Beleggings.
[8] The appeal was accordingly dismissed, and the Second Respondent was
liable to pay the costs of Ontspan Beleggings.
1 Seale v Minister of Public Works 2019 JDR 1041 (GP).
[9] The Supreme Court of Appeal dismissed the appeal but varied the costs order
a quo to make provision that the Minister pay the costs of Ontspan Beleggings.2
[10] Still discontent with the outcome, Mr Seale, Ontspan Beleggings, HI Frank
Components and the fourth respondent then sought leave to appeal from the
Constitutional Court.
[11] In the application to the Constitutional Court for leave to appeal, the parties
exchanged the complete set of affidavits. The Constitutional Court considered the
application for leave to appeal. The conclusion was that the application should be
dismissed as it did not engage the ap ex Court’s jurisdiction and, in any event that it
bore no prospects of success.
[12] The available appeal processes were thereby exhausted.
[13] One would justifiably have considered the final word in the appeal processes
to have signalled the end to the litigation. That was not to be.
[14] Upon the Applicant (Transvaal Yacht Club) discovering during the taxation
process that the costs order granted by Davis J in the application for leave to appeal
the order a quo, was not correctly reflected in the written order, it launched an
applicat ion in terms of Uniform Rule 42(1)(b) to this Court to correct what was
considered to be a patent error.
[15] Mr Seale, Ontspan Beleggings and HI Frank Components (collectively
referred to as the Respondents) opposed the Uniform Rule 42 application by the
Transvaal Yacht Club.
[16] In a counter application, the Respondents seek an order orders that this Court
rescind the order a quo and/or declare the order a quo void.
2 Seale v Minister of Public Works 2020 JDR 2131 (SCA).
[17] They also seek an orde r for the granting of the relief that was sought a quo
(with minor exclusions) to declare and enforce servitudal rights over the foreshore.
The respondents essentially claimed an order directing the State to take all steps
necessary to register predial ser vitudes of access to a dam for purposes of boating
and fishing, as follows:
(a) Over portion 28 in favour of the land on which the Township of
Schoemansville had been established (that is all the Erven in Schoemansville),
in accordance with the aforesaid provision in the Title Deeds of these Erven;
(b) Over the foreshore in front of Erf 4[...], in favour of Erf 4[...];
(c) Over portion 29 in favour of the land on which the Township of Meerhof
had been established (that is all the Erven in Meerhof), in accordan ce with the
aforesaid provision in the Title Deeds of these Erven; and
(d) Over portion 59, in favour of Erf 9[...], Meerhof.
[18] In the alternative to the order sought to declare and enforce servitudal rights
over the foreshore, the Respondents seek that t he matter be remitted for hearing by
trial proceedings.
The background facts
[19] In its judgment, the Supreme Court of Appeal provided a neat exposition of
the facts:
‘[4] The history of the matter spans more than a century. The following
exposition s uffices for a proper understanding of this judgment. At the time
when the Union Government determined to construct the Dam (then referred
to as the Hartebeespoort Reservoir), the Schoeman family owned portions of
the freehold farm Hartebeespoort nr 498 in the district of Pretoria. The
Crocodile River, which would be the main source of water for the Dam,
traversed the original farm. Mr Johan Hendrik Schoeman and members of his
family were the co -owners of the land known as the northern portion of the
farm Ha rtebeestpoort. Mr Schoeman was the owner of an adjacent farm
referred to as a certain portion of the south -eastern portion of the farm
Hartebeestpoort. Parts of these two portions of land would be submerged by
the Dam.
[5] In the light hereof, on 25 Janua ry 1918, the Union Government, represented
by the Minister of Lands, and the owners of the aforesaid portions of the farm
Hartebeestpoort, represented by Mr Schoeman, entered into an agreement of sale
(the 1918 agreement). In terms thereof the Union Govern ment purchased the
portions of the aforesaid tracts of land from the Schoeman family that would be
submerged by the Dam. The eastern boundary of the land purchased was
determined to be a line running three feet above the projected high flood level of the
Dam.
[6] The land in question was subdivided accordingly and the portions thereof that
became the property of the Union Government presently consists of three titles.
These adjoining properties are presently described as the following portions of the
farm Harte beestpoort: the remaining portion of portion 28, measuring 474,6058
hectares (portion 28); the remaining extent of portion 29, measuring 231,4418
hectares (portion 29); and portion 59 (a portion of portion 29), measuring 2,0296
hectares (portion 59). They vest in the State as the legal successor of the Union
Government.
[7] After the subdivision, Mr Schoeman retained ownership of the remainder of
the portion of the south -eastern portion and shortly afterwards also acquired
ownership of the remainder of th e northern portion. The boundary between Mr
Schoeman's land and the State land therefore ran above the actual (fluctuating)
waterline of the Dam. As I have said, this strip of land is referred to as the foreshore
and has to be traversed to gain access to t he Dam from the east.
[8] Clause 3(k) (clause K) of the 1918 agreement provided for the retention of
rights of access to the Dam in the following terms:
“The said Johan Hendrik Schoeman in his individual capacity or his assigns
shall retain the right of access to the said Hartebeestpoort Reservoir on
certain three places to be mutually agreed upon by the parties to these
presents – the said places being situated approximately as follows: (a) near
the south eastern entrance to Hartebeestpoort on the easter n bank of the
River, (b) near the site of the old dam on the Crocodile River built by the now
late General Schoeman, and (c) at a suitable site in the Zwartspruit Valley –
for the purpose of boating on the said reservoir and fishing therein, provided
that the said Schoeman or his assigns shall at all times be subject to all
general regulations and restrictions that may be framed and at any time come
into force in connection with the said reservoir and the use thereof by the
public, provided that such regula tions shall be of general application and that
the said Schoeman or his assigns shall not be prevented from reasonably
using the said reservoir for the said purposes unless and until the water of the
said reservoir may at any time be required for domestic purposes and the
public are excluded from access to the Reservoir when the rights hereby
granted to the said Schoeman shall cease and determine until such time as
such restrictions are withdrawn. It is further understood and agreed that if in
regards to th e operations to be undertaken in connection with the said
reservoir the actual sites marked on the last mentioned diagrams or any of
them should be required for the purposes aforesaid that then and in that case
a suitable site as near as possible to the or iginal site shall for the purposes
aforesaid be granted to the said Schoeman in his individual capacity who shall
have the right of selecting such site or sites – which shall not interfere with the
working and works of the Reservoir”.
[9] For reasons lost in time, the parties never agreed upon the precise locations
of the 'three places'. Mr Schoeman nevertheless desired the registration of these
rights. After correspondence had been exchanged, the Union Government during
1922 entered into a notarial cont ract with Mr Schoeman (the notarial contract). It
recorded the 1918 agreement, reproduced clause K and proceeded as follows:
“WHEREAS it is desired to have the right so reserved in Clause K registered
in the Deeds Office, but as the Government will hold t hat area which will form
the submerged area of the said Hartebeestpoort Reservoir under a great
many titles, some portions of which have not yet been acquired by the
Government. NOW THEREFORE, the parties hereto agreed to register this
Contract in the Deed s Office in the Register known as the Register for Diverse
Acts, whereby the rights granted to the Party of the other part, the said
JOHAN HENDRIK SCHOEMAN , in his individual capacity, or his Assigns,
and more fully detailed in Clause K above set out in f ull, may be recorded and
registered in favour of the said JOHAN HENDRIK SCHOEMAN , in his
individual capacity or his Assigns, against the said submerged area of the
Hartebeestpoort Reservoir, subject to the conditions that when and soon as
the Government h as acquired the whole of the area which will form the
submerged area of the Hartebeestpoort Reservoir, and has taken out a
Certificate of Consolidated Title of such area; the parties hereto, their
Successors in Title or Assigns, bind themselves to enter in to a Contract
whereby the rights as detailed in said Clause K of the said Deed of Sale, may
be properly registered as a servitude against the Titles of the servient and
dominant tenements respectively.”
[10] It is apparent that the notarial contract envis aged two registrations. The first
was the registration of the notarial contract itself in the Register of Diverse Acts. The
second was the registration of a servitude. The first registration took place on 3
October 1922. The second did not take place. Alth ough the Union Government and
its successors for many years afterwards expressed the intention to acquire the titles
of the area submerged by the Dam, the State at some stage decided not to do so. It
therefore did not take out the certificate of consolidat ed title envisaged in the notarial
contract.
[11] It appears that Mr Schoeman was an entrepreneur of note. During 1923 he
established the Schoemansville Township. It was established on the remainder of
the northern portion adjacent to portion 28. The titl e deeds of al the erven in
Schoemansville contain the following clause:
“All registered erf -holders shall be entitled in common with JOHAN HENDRIK
SCHOEMAN, his Successors in Township Title or Assigns, to the right of
access to the dam near the South - eastern entrance to Hartebeestpoort on
the Eastern -Bank of the Crocodile River, for the purpose of boating on the
said reservoir and fishing therein, subject to the conditions of Notarial
Agreement No. 99/1922M, dated the 27th day of September, 1922, filed i n the
Deeds Office ”
[12] During 1935 Mr Schoeman also established the township of Meerhof. Meerhof
is situated adjacent to portions 29 and 59. The title deeds of the erven in Meerhof
contain a similar provision in respect of access to the Dam:
“All reg istered erfholders in the Township shall be entitled in common with the
Applicant, his successors in Township Title or Assigns to the right of access to
the Lake at the southern end thereof near the late H.J. Schoeman's old dam
known as Sophia's Dam (now a djoining Schoemansville Station ) on the
Eastern Bank of the Crocodile River for the purpose of boating in the said lake
and fishing therein subject to the conditions of the Notarial Agreement No.
99/1922M, dated the 27th September 1922, and filed in the D eeds Office. The
owners of business erven Nos. 89, 9[...], 164 and 165 however, shall be
entitled to ply boats for hire on the Lake, as from the abovementioned access”.
[13] In the meantime, Mr Schoeman persuaded the Union Government to
retransfer a portion o f the land that had been transferred pursuant to the 1918
agreement, to him. The decision of the Union Government was taken on 10 October
1925 and was recorded in Cabinet Minute 3125 (the Cabinet Minute). In terms
thereof, the following was approved:
“1. The grant to JOHAN HENDRIK SCHOEMAN of certain piece of land
being Portion No. 1 of Portion L of the Northern portion of the farm
Hartebeestpoort No. 498, District Pretoria, measuring 476 square roods,
together with the right to use the foreshore immediat ely in front of the said
land and between it and the Hartebeestpoort Lake, subject to rights of access
to the said foreshore in favour of the Government of the Union of South Africa
and its servants.
2. The grant of a right of user in favour of the TRANSVAAL YACHT CLUB
in respect of the foreshore immediately in front of Stands Nos. 1[...] and 1[...]2
of Schoemansville Township and between the said Stands and the
Hartebeestpoort Lake. Subject, however, to ri ghts of access in favour of the
Government of the Union of South Africa and its servants.
3. The reservation of the foreshore adjoining the Hartebeestpoort Lake
extending from Stand No. 1[...]5 to the corner of Tolstoi Street and Lakeside
Avenue of Schoemansv ille Township as a landing place for the general public
and persons plying for hire with boats on the Hartebeestpoort Lake, other than
stand holders in the Schoemansville Township, the owner for the time being
of the piece of land referred to in paragraph (1) above and the Transvaal
Yacht Club referred to in paragraph (2) above, subject to rights of access in
favour of the Government of the Union of South Africa and its servants.
4. The reservation of the foreshore adjoining the Hartebeestpoort Lake
extend ing from the corner of Tolstoi Street and Lakeside Avenue to Riekert
Street of Schoemansville Township, as a landing place for the owners of
Stands in Schoemansville Township other than the owner for the time being of
the piece of land referred to in parag raph (1) above and the Transvaal Yacht
Club referred to in paragraph (2) above, subject to rights of access in favour
of the Government of the Union of South Africa and its servants.”
[14] Paragraph 1 of the Cabinet Minute was given effect to by Crown Gra nt 67 of
1926 (the Crown Grant). It was registered in the Deeds Office on 1 April 1926. In
terms thereof Mr Schoeman received transfer of a piece of land, measuring some 48
hectares, presently known as portion 43 of the farm Hartebeestpoort (portion 43). I t
does not form part of the Schoemansville Township. The Crown Grant also provided
for access to the Dam, as follows:
“The owner of the land hereby granted shall be entitled to the free use of the
foreshore immediately in front of it, and between it, and the Hartebeestpoort
Lake as indicated on the Diagram S.G. No. A.1936/25. ”
This servitude was duly endorsed on the title deed of the servient tenement,
presently portion 28.
[15] The fourth respondent was established on 23 February 1923. It was a
condi tion of the grant of portion 43 to Mr Schoeman that he would donate erven 1[...]
and 1[...]2 , Schoemansville to the fourth respondent. These erven were duly
transferred to it. It subsequently also obtained ownership of the adjacent erf 1[…]3.
These three erven have since been consolidated and are presently known as erf
1[...]4 Schoemansville. The rights that had been approved in terms of para 2 of the
Cabinet Minute were registered as a servitude against the title deed of the servient
tenement, in favour of the fourth respondent's land.
[16] Lakeside Avenue in Schoemansville is presently known as Waterfront Street.
During the early 1980's a bird sanctuary was established on parts of the foreshore
referred to in paragraphs 3 and 4 of the Cabinet Minute. The relative loc ations of the
adjacent properties that I have referred to can be pictured as follows. Moving roughly
from west to east, one would traverse the foreshore in this order: in front of portion
43; in front of erf 4[...], Schoemansville (erf 4[...]); in front of erf 1[...]4 ,
Schoemansville; from in front of erf 1[...]5 , Schoemansville to the western boundary
of the bird sanctuary; the bird sanctuary itself; and from the eastern boundary of the
bird sanctuary to in front of the corner of Riekert Street and Waterfront Street in
Schoemansville.
[17] The first appellant established the Hartbeespoort Snake and Animal Park on
portion 43 during 1962. In 1964 he extended his operation to the adjacent erf 4[...],
with the permission of the owner thereof, Mr Schoeman. During 1965 Mr Schoe man
donated erf 4[...] to the Peri -Urban Health Board. The first appellant leased erf 4[...]
from it. During 1973 the first appellant obtained the shareholding in the second
appellant and the second appellant obtained transfer of portion 43. And in 1982 the
Peri-Urban Health Board transferred erf 4[...] to the first appellant.
[18] As I have said, erf 1[...]4 adjoins erf 4[...]. In terms of various successive lease
agreements, the fourth respondent has since 1969 leased not only the foreshore in
front of its property but also approximately two thirds of the foreshore in front of erf
4[...]. The fourth respondent effected significant improvements to the foreshore, to
facilitate access to the Dam for yachting. The fourth respondent's use of the
foreshore in front of erf 4[...] was and remains a major bone of contention. One of the
principal purposes of the appellants’ application was to limit the fourth respondent to
the use of the foreshore in front of the fourth respondent's property.
[19] The first appellant also owns a resi dential property in Schoemansville (erf
2[...]), as well as erven 8 [...], 9[...], 1[...] and 1 [...]5 in Meerhof. Erf 9[...] adjoins
portion 59 and the other erven are situated adjacent to portion 29. The third
appellant is the owner of erf 1 [...]6 in Schoemansville. It is situated opposite erf 4[...],
which lies between it and the foreshore’.
The application in terms of Uniform Rule 42(1)(b)
[20] The Transvaal Yacht Club produced the transcription of the hearing when
Davis J heard the application for leave to appeal the order a quo.
[21] The transcription reads that the order in respect of costs was that “the cost
would be cost in the appeal, including cost of multiple council (sic) where so
employed.”
[22] The typed order reads differently. In respect of costs, it reads “including costs
of multiple counsel, where so employed”.
[23] At the hearing of the application, there was no appearance for the Transvaal
Yacht Club. It delivered a notice to abide the outcome of the application, provided
that no costs are sought against the Transvaal Yacht Club.
[24] The typed order clearly contains a patent error. In respect of costs, the typed
order doe s not accord with the order that was made by Davis J at the hearing.
[25] Uniform Rule 42(1) empowers this Court to mero motu rescind or vary an
order in which there is a patent error, but only to the extent of the error.
[26] In opposing that this Cour t correct the patent error, the Respondents rely on
the failure to have joined the Minister and alleged prejudice by reason of the lapse of
time.
[27] The Minister intervened in the proceedings. This ground of opposition was
accordingly overcome by events . The alleged prejudice does not constitute a legally
relevant ground to oppose that this Court correct the patent error in the typed order
of 22 August 2022 to ensure that it correctly reflects the order that was given by
Davis J.
[28] I can see no reaso n why I should not mero motu vary the patent error in the
typed order.
[29] There was no appearance for the Transvaal Yacht Club. I am accordingly not
inclined to make any order for costs in the application in terms of Uniform Rule
42(1)(b).
The counter application
[30] In main, the Respondent’s counter application is aimed at obtaining an order
to rescind the judgement a quo and/or to declare the order a quo void. The
remainder of the relief sought is dependent on the successful obtaining of such order.
[31] It is not unusual in this Court, or in any other Division of the High Court for a
party to seek an order for the setting aside of an order.
[32] This counter application is however extraordinary.
[33] The Supreme Court of Appeal delivered a reasoned judgment, confirmed the
order made a quo, made specific orders concerning the rights of Ontspan
Beleggings and varied the cost order that was made a quo The Constitutional Court
also considered the me rits of the matter and concluded that the application for leave
to appeal bore no prospect of success.
[34] An application in the High Court to set aside (or to declare void) its own order
after that order a quo was pronounced on in the Supreme Court of A ppeal and in the
Constitutional Court is, as far as I am aware unprecedented. I was unable to find any
precedent in the Republic of South Africa, or in foreign law where the rescission of a
judgment a quo and/or a declaration of voidness of a judgment a qu o was sought
after a higher court or higher courts finally pronounced on an order made in a court
of first instance.
[35] In Magomed v Middlewick N.O. and another3, Kotze J held that to hear an
application for review after the High Court pronounced finall y in an appeal from the
Magistrates Court on the matter, would render the final judgment on appeal of no
effect. He held that the result would be that the whole matter would have to be re -
opened, which would all together be an incorrect procedure. He allow ed for the
exception in the extreme case where fraud is alleged to have been practiced on the
court to obtain the court’s former judgment. It was accepted that such application or
process for re -opening the matter had to be brought in the court that pronou nced
finally in the appeal. The magistrate’s court would not have been the correct forum.
[36] At the hearing, I raised my concern whether this Court has the jurisdiction to
make the orders sought in the counter application with counsel for the parties. M y
concern was raised in the context of the unprecedented nature of the counter
application. Counsel for the Respondents and the Minister submitted that this Court
is endowed with the jurisdiction to make the orders sought in the counter application.
[37] Whether this Court has the jurisdiction, in the sense of the power to make the
orders sought is not dependant on the view of the parties, or even their agreement.
[38] In Zuma v Secretary of the Judicial Commission of Enquiry into allegations of
State Capture, Corruption and Fraud in the Public Sector, including Organs of State
and others ,4 Khampepe J considered the jurisdiction of the Constitutional Court. In
that context, the learned Judge held that “it would of course be ina ppropriate for any
3 1917 CPD 539 at 540.
4 2021 (11) BCLR 1263 (CC) at [49].
other court to entertain a rescission application pertaining to an order made by this
Court (the Constitutional Court)”.
[39] Considering the hierarchy of the courts, the doctrine of precedent and the
principle of finality, it is indeed obvious that it would be inappropriate for a lower court
to entertain a rescission application of an order by the Constitutional Court. On my
understanding of the finding, the learned judge however cast the net wider and
considered that it would be inappr opriate for a lower court to entertain a rescission
application pertaining to an order made by the Constitutional Court.
[40] Without placing any limitation on the interpretation of the finding, I consider
that the finding includes the meaning that it wou ld be inappropriate for a lower court
to entertain a rescission application of an order of a lower court in respect of which
the Constitutional Court pronounced finally on appeal in a reasoned judgment and
order.
[41] In my view, a contrary interpretation would mean that the final judgments and
orders of the Constitutional Court could be rendered meaningless, and without any
force or effect by an order of a lower court to set aside an order a quo that pertain to
final orders in the Constitutional Court.
[42] Such untenable result is precisely why the doctrine of precedent provides
certainty, predictability, reliability, equality, uniformity and convenience. Observance
of the doctrine has been insistent upon by the Constitutional Court and by the
Supreme C ourt of Appeal. The doctrine not only binds lower courts but also binds
courts to their own decisions. Stare decisis is not simply a matter of respect for
courts of higher authority. It is a manifestation of the rule of law itself, which in turn is
foundin g value of our constitution. To deviate from this rule is to invite legal chaos.5
5 Camps Bay Ratepayers and Residents Association and another v Harrison and another 2011 (2)
BCLR 121 (CC) at [28]; Gcaba v Minister for Safety a nd Security and others 2010 (1) SA 238 (CC) at
paras 58 -62.
[43] By parity of reasoning, it would be inappropriate for the High Court to entertain
a rescission application pertaining to an order made by the Supreme Court of Appeal
and pertaining to an order of the Constitutional Court.
[44] Should I be persuaded to grant the relief sought in the counter application,
founded on the allegations of fraud and nullity of the order a quo, the findings will
perforce imply that fraud was committed in the proceedings before the Supreme
Court, and /or that the Supreme Court of Appeal confirmed an order that is a nullity.
[45] Should I also be persuaded to grant the orders declaring and enforcing
servitudal rights over the foreshore, the judgment and the order of the Supreme
Court of Appeal in which these same orders were refused would also stand.6 This
Court would then not only have made an order that pertain to the order in the
Supreme Court of Appeal, but would also disregard the law of precedent.
[46] The fact that the Constitutional Court also considered the merits, renders it
equally inappropriate for this Court to entertain the counter application.
[47] In the India jurisdiction, the doctrine of merger is applied. This entails a
common law doctrine rooted in the idea of maintaining the decorum of the hierarchy
of courts and tribunals. The doctrine is based in the reasoning that there cannot be,
at one relevant point in time, more than one operative order governing the same
subject matter.
[48] In Kunhayammed and Understanding Doctrine of Merger of Orders others v
State of Kerala and anothe r7 it was held that ‘where an appeal or revision is provided
against an order passed by a court, tribunal or any other authority before superior
forum and such superior forum modifies, reverses or affirms the decision put in issue
before it, the decision b y the subordinate forum merges in the decision by the
superior forum and it is the latter which subsists, remains operative and is capable of
enforcement in the eye of the law’.
6 Department of Transport and other s v Tasima (Pty) Ltd 2 017 (2) SA 622 (CC).
7 (2000) 6 SCC 359 at para 43.
[49] Similarly, the High Court of Bombay observed in CIT v Tejaji Farasram
Kharawalla8 that ‘it is a well -established principle of law that when an appeal is
provided from a decision of a tribunal and the appeal court after hearing the appeal
passes an order, the order of the original court ceases to exist and is merged in the
order of the appeal court, and although the appeal court may merely confirm the
order of the trial court, the order that stands and is operative is not the order of the
trial court’.
[50] I could not find any indication that the doctrine of merger that is app lied in the
India jurisdiction finds any application in the South African legal context.
[51] In my view the underlying reasoning that there cannot be, at one relevant
point of time more than one operative order governing the same subject matter and
that the decision by the superior forum is operative, is sound. I also consider this
reasoning not to be at variance with the relevant finding in the case of Zuma , the
hierarchy of the South African Courts and the law of pre cedent.
[52] I find that it would be inappropriate for the High Court to entertain the counter
application and that the High Court does not have jurisdiction to entertain the
application for the rescission of the order a quo and/or to declare the order a quo
void, to make orders declaring and enforcing servitudal rights over the foreshore and
to refer the matter to trial.
[53] The only courts that can conceivably consider the counter application and the
relief sought are the Supreme Court of Appeal and the Constitutional Court.
[54] If I am wrong in the conclusion that I have reached, the counter application
must also fail on its merits. I deal of each of the grounds advanced.
The reliance on fraud
8 1953 SCC OnLine Bom 28.
[55] As a general rule, a court has no power to set aside or alter its own final order,
as opposed to an interim or interlocutory order. The reasons for this age -old tradition
are twofold. First, once a court has pronounced a final judgment it becomes functus
officio and its authority over the subject -matter has ceased. The second reason is
the principle of finality of litigation.9
[56] There are exceptions to this general rule . The requirement for relief under
these exceptions depend on whether the judgment was given on the merits of the
dispute between the parties after evidence had been led or whether the order was
made in default of appearance of the party that seeks to have it rescinded. In respect
of the first category the test is stringent. Such judgment can only be set aside on the
ground of fraud or, in exceptional circumstances on the ground of justus error or the
discovery of new documents.10
[57] In the case of De Wet and others v Western Bank Limited11 it was held that
the court has the inherent power to control the procedure and proceedings in its
court. This is done to facilitate the work of the courts and to enable litigants to
resolve their differences in as speedy and inexpensive a manner as possible. This
does not include the right to interfere with the principle of the finality of judgments
other than in circumstances specifically provided for in the Rules or at common law.
Such a power is not a necessa ry concomitant of the inherent power to control the
procedure and proceedings in a court.
[58] In Zuma12 it was held that the rule of law requires not only that litigation must
come to an end, but that the Constitutional Court affirms itself as the final arbiter of
disputes of law. The principle of finality in litigation which underlies the common law
rules for the variation of judgments and orders is clearly relevant to constitutional
matters. There must be an end to litigation, and it would be intolerabl e and could
lead to great uncertainty if courts could be approached to reconsider final orders
made. Uniform Rule 42, in consolidating what the common law has long permitted,
operates only in specific and limited circumstances. If not, chaos would be invit ed
9 Freedom Stationary (Pty) Ltd and others v Hassam and others 2019 (4) SA 459 SCA at 465.
10 Freedom Stationary (Pty) Ltd and others v Hassam and others 2019 (4) SA 459 SCA at 465.
11 1977 (4) SA 770 (T) at 780H.
12 2021 (11) BCLR 1263 (CC) at [97] to [98].
into the processes of administering justice and the interest of justice requires the
grounds available for rescission to remain carefully defined. The guiding principle of
the common law is certainty of judgments, and a court must be guided by prudence
when exercising its discretionary powers in terms of the law of rescission, which
discretion should be exercised only in exceptional cases having regard to the
principle that it is desirable for there to be finality in judgments.
[59] In order to prove fraud, it has to be established that the successful party was
a party to the fraud,13 that, but for the fraud the court would not have granted the
judgment14 and there must have been a causal connection between the fraud and
the judg ment.15
[60] The Respondents’ case to obtain an order for the rescission of the order quo
in tainted in obscurity. There is no proper order and structure to the allegations. The
founding affidavit is littered with allegations concerning conduct prior to t he launch of
the application that served a quo, criticisms of the case that was presented a quo by
the Minister and the Transvaal Yacht Club, the alleged conduct by the Minister
subsequent to the appeal process having become exhausted and argument
concerni ng the correctness of the findings in the Supreme Court of Appeal.
[61] I consider it wholly unnecessary to deal with these issues that were presented
in extremely prolix fashion. Complaints concerning the case presented and the on
the judgments a quo and on appeal cannot serve as a basis to sustain fraud as a
ground to obtain a rescission of an order. It is also trite that material known to the
parties before the litigation was concluded cannot serve to sustain fraud as a basis
to obtain a rescission of j udgment. In Port Edward Town Board v Kay and another16
it was held that a court would only grant restitution based on fraud if a document had
been discovered by the unsuccessful litigant after judgment only and that there
seems to be no reason why the posi tion should be any different in the case of a
fraud committed before judgment in a manner other than by falsifying documents.
13 Makings v Makings 1958 (1) SA 338 (A).
14 Robinson v Kingswell 1915 AD277 at 285.
15 Mabuza v Nedbank Limited and another 2015 (3) SA 369 (GP ) at [17].
16 1994 (1) SA 609 (D) at 705.
[62] It seems to be that the gravamen of the allegation of fraud is that the Minister
and the Transvaal Yacht Club denied in the course of the litigation that the Meerhof
and Schoemansville property owners had any right of access to the offshore, but that
they did a volte -face in the Constitutional Court by admitting those very rights.
Therefore, so I understand the case, fraud was committed on this Court by the
Minister and the Transvaal Yacht Club falsely denying the rights of the Meerhof and
Schoemansville property owners to prevent the granting of the orders declaring and
enforcing servitudal rights over the foreshore, whilst they in fact acknowledged the
existence of those rights.
[63] The Respondents specifically rely on statements by the Minister in the
answering affidavit to the application for leave to appeal in the Constitutional Court.
These statements were that ‘not a shred of evidence has been adduced by the
Applicants in the High C ourt that the Government has, or will refuse members of the
public, or property owners in Schoemansville and Meerhof from having the right of
access of the foreshore to the Hartbeespoort Dam’, and ‘nowhere in the papers has
any of the parties made an alleg ation that the owners of erven in Schoemansville or
Meerhof will be deprived of their access to the Hartbeespoort Dam’, and that ‘the
right of access to the Hartbeespoort Dam has been inserted in the Title Deeds of all
erven, and no evidence has been adduc ed that the Government has, or will interfere
with this right of access’.
[64] Reliance is also specifically placed on the position adopted by the Transvaal
Yacht Club in the affidavit of its representative in opposing the application for leave
to appeal to the Constitutional Court that the matter did not concern the property
rights of property owners in Schoemansville and Meerhof and therefore that no need
presented to have joined them to the proceedings.
[65] The Respondents founded their case in the pr oceedings a quo, in the
Supreme Court of Appeal and in the Coinstitutional Court on the enforcement of
contractual rights to registration of the praedial servitudes and on acquisition of the
praedial servitudes by acquisitive prescription.
[66] The contr actual case was based on clause K on its own, or clause K together
with a Notarial Contract.
[67] The Supreme Court of Appeal finally held that clause K was unenforceable
and that the Notarial Agreement on which Mr Seale placed some reliance did not
assis t as the rights that had purportedly been ceded were not enforceable. In
consequence, it was held on appeal that the unenforceability of clause K was also
destructive of the enforceability of the Notarial Contract and the Title Deed provisions.
[68] The s tatements by the Minister in the answering affidavit to the application for
leave to appeal to the effect that no evidence was presented in the High Court that
the Government has, or will refuse members of the public, or property owners in
Schoemansville a nd Meerhof from having the right of access over the foreshore to
the Hartbeespoort Dam and that the right of access to the Hartbeespoort Dam has
been inserted in the Title Deeds of all erven, and no evidence has been adduced
that the Government has, or wil l interfere with this right of access and the
determination of the contractual rights in terms of clause K and the Notarial Deed, as
well as the determination of acquisitive prescription concerns access to the public
and statement of an understanding of ri ghts. The last -mentioned is a legal matter.
The same applies to the statement of the Transvaal Yacht Club that the matter did
not concern the property rights of property owners in Schoemansville and Meerhof
and therefore that no need presented to have join ed them to the proceedings
[69] The statements does not amount to fraud and I fail to see the connection
between the statements by the Minister and the Transvaal Yacht Club on the
findings in the Supreme Court of Appeal on the unenforceability of clause K, and the
effect thereof on the on the Notarial Contract and the Title Deeds.
[70] Put differently, clause K is unenforceable, irrespective of the position adopted
by any party. The concomitant effect on the Notarial Contract and the Title Deeds
also follows, irrespective of the of the position adopted by any party.
[71] The high -water mark of the case for fraud truly is that the Respondents say
that the Minister and the Transvaal Yacht Club should not have opposed the
application to declare and execute the praedial servitudes on t he foreshore.
[72] The Respondents in any event rely on the content of the affidavits that were
delivered by the Minister and the representative of the Transvaal Yacht Club in the
Constitutional Court. That was before the appeal processes were exhausted a nd
finally pronounced on. The facts that the Respondents now rely on to sustain the
allegations of fraud were known before the Constitutional Court pronounced on the
application for leave to appeal, they served before the Constitutional Court and the
Const itutional Court refused the application for leave to appeal. A party is not
allowed to have a final judgment re -opened on the same evidence as was put before
the court and rejected in the proceedings resulting in that judgment.17
[73] As a last resort, th e Respondents also relies on the interest of justice as a
basis to obtain an order for the rescission of the judgment of this Court. In Zuma , the
Constitutional Court held that the setting aside of an order in the interest of justice
would require that tha t be done in very exceptional circumstances and that the
administration of justice will be adversely affected if parties are free to continuously
approach courts on multiple occasions in the same manner.18 However, legitimacy
and confidence in a legal syst em demands that an effective remedy be provided in
situations where the interest of justice cry out for one. There can be no legitimacy in
a legal system where final judgments, which would result in substantial hardship of
injustice, are allowed to stand m erely for the sake of rigidly adhering to the principle
of res judicata. To do so, the circumstances must however be wholly exceptional to
justify a departure from the res judicata doctr ine. The interest of justice is the general
standard, but the vital question is whether there are truly exceptional
circumstances.19
[74] Exceptional circumstances, in the context of s 17(2)(f) of the Superior Courts
Act, and apart from its dictionary mea ning should be linked to either the probability of
17 Makings v Makings1958 (1) SA 338 (A) at 342.
18 At para [87].
19 Zuma, paras [88] to [90], and the autho rities referred to.
grave individual injustice, or a situation where, even if grave individual injustice might
not follow, the administration of justice might be brought into disrepute if no
reconsideration occurs.20
[75] I can see no exceptional circumstances that would trigger a finding to rescind
the order a quo on the basis of the interest of justice. No evidence was presented
that grave individual injustice might follow and that the administration of justice might
be bro ught into disrepute if the order a quo is not rescinded.
[76] The contrary holds true. Not only would the principle of finality be implicated,
but chaos would be invited to the process and it would allow the Respondents to re -
open their case without any v alid basis. This is aptly illustrated by the fact that this
application mostly consisted of lengthy affidavits in which the case was re -argued,
inter alia to persuade that the judgment in the Supreme Court of Appeal was wrong.
[77] I accordingly find that the Respondents failed to prove the elements of fraud
to sustain a finding that fraud was committed by the Minister and the Transvaal
Yacht Club, and that the fraud renders the order a quo to be rescinded.
Is the order void?
[78] The Respondents contend that the order is an order in rem, that the property
owners in Meerhof and Schoemansville were not joined to the proceedings and
consequently that the order a quo is void.
[79] A judgment in personam relates only to rights int er se the parties before the
court and binds only the parties to the proceedings. A judgement in rem fixes the
status of the matter in the litigation. A judgment in rem has effect against the whole
world, and not merely as between the parties to the litiga tion before the court.21
20 S v Liesching 2019 (4) SA 219 (CC) at para 138.
21 City of Tshwane Metropolitan Municipality v Lombardy Development [2018] 2 All
SA 605 (S CA) at [28].
[80] In Home Sites (Pty) Ltd v Senekal22 the granting of a verbal servitude was in
issue and in particular whether the person to whom the verbal servitude was granted
had to be joined to the proceedings. On appeal, Shreiner JA con sidered that the
party to the verbal servitude agreement that was not joined to the proceedings had
an interest in the validity of her servitude and that she had to be given an opportunity
of being heard on the point. The order a quo was then amended, and the action was
stayed until joinder of the party to the verbal servitude agreement. This matter
concerned the joinder of a party with a direct and substantial interest before
conclusion of the litigation.
[81] Assuming that the order is an order in rem, i t does not follow that the order is
a nullity. The consequence simply is that the parties that were not joined cannot be
met with the exceptio res judicata.23
[82] The reliance on non -joinder of the Meerhof and Schoemansville property
owners was not raised in this Court a quo, or in the Supreme Court of Appeal.
[83] Moreover, the Respondents were the Applicants in the proceedings in this
Court. They joined the parties to the proceedings. They themselves did not join the
Meerhof and Schoemansville property owne rs. No property owner in Meerhof and
Schoemansville joined this application to complain that there was a non -joinder.
[84] It is these Respondents that now contend that the order a quo is void,
because they themselves did not join the Meerhof and Schoeman sville property
owners.
[85] I have already concluded that it was held in Swartland that the order is not a
nullity. The consequence simply is that the parties that were not joined cannot be
met with the exceptio res judicata
[86] I find that there is no basis to declare the order a quo void.
22 1948 (3) SA 514 (AD) at 520.
23 Standard Bank of South Africa Limited v Swartland Municipality and others 2011 (5)
SA 257 (SCA) at [12].
[87] In the result, the counter application stand to be dismissed.
[88] I make the following order:
a. In the application in terms of Uniform Rule 42(1)(b), the typed order of
22 August 2022 is varied to read as follows:
“1. The application for leave to appeal is granted to the Supreme Court of
Appeal.
2. Cost would be cost in the appeal, including cost of multiple counsel where
so employed.”
b. No order for costs is made in the appli cation in terms of Uniform Rule
42(1)(b).
c. The counter application is dismissed.
d. The First Respondent, the Second Respondent and the Third
Respondent are ordered, jointly and severally to pay the costs of the
Intervening party in the counter applic ation on Scale C, including the costs
consequent on the employment of two counsel where so employed, one of
which is senior counsel.
CILLIERS AJ
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date of the judgment is deemed to be 28 February 2028.
COUNSEL FOR THE INTERVENING PARTY: Chris Erasmus SC
HA Mpshe
INSTRUCTED BY: The State Attorney
COUNSEL FOR THE FIRST RESPONDENT, NGD Maritz SC
SECOND RESPONDENT AND THE THIRD WC Retief (Meyer)
RESPONDENT:
INSTRUCTED BY: Couzyn Hertzog & Horak