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[2020] ZASCA 168
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Bokoni Platinum Mines v Moropane (1035/2019) [2020] ZASCA 168 (11 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1035/2019
In
the matter between:
BOKONI
PLATINUM MINES (PTY)
LTD
APPELLANT
and
ABRAM MOROPANE
RESPONDENT
Neutral
citation:
Bokoni Platinum Mines v
Abram Moropane
(/1035/2019)
[2020]
ZASCA 168
(11 December 2020)
Coram:
SALDULKER, MOLEMELA and NICHOLLS JJA
and SUTHERLAND and UNTERHALTER AJJA
Heard:
04 November 2020
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email. It
has been published
on the Supreme Court of Appeal website and
released to SAFLII. The date and time for hand-down is deemed to be
10h00 on 11 December
2020.
Summary
:
Whether the judgment refusing the application for leave to amend plea
and counterclaim was res judicata – whether the recusal
of the
judicial officer who granted the order refusing amendment, which
recusal was based on bias, invalidates every aspect of
a trial,
including judgments and orders made in the course of the trial.
ORDER
On
appeal from:
Limpopo Division of the
High Court, Polokwane (Muller and Kganyago JJA sitting as court of
first instance): judgment reported
Bakoni
Platinum Limited v Moropane
[2019]
ZALMPPHC 30
1 The appeal is upheld.
2 The proceedings before Magistrate
Malebane are set aside, including the judgment refusing leave to
amend the plea and counterclaim.
3 The matter is remitted to a full
court of the Limpopo Division of the High Court to adjudicate Acting
Magistrate’s Moyane’s
judgment on the merits of the
application for leave to amend the plea and counterclaim.
4 Each party is to pay its own costs.
JUDGMENT
Nicholls
JA (Saldulker and Molemela JJA and Sutherland and Unterhalter AJJA
concurring):
[1]
To suggest that this matter has a long and tortuous history would be
an understatement. It merely needs to be stated that 6
years after
the institution of summons in the magistrates court, a dispute
involving a mielie farm worth R54 000 has now ended
up with an
interlocutory application for leave to amend a plea being adjudicated
upon in this Court.
[2]
In 2013 Bokoni Platinum Mines (Pty) Ltd (Bokoni), the appellant,
decided to commence mining activities on Klipfontein Farm.
Pursuant
thereto, Bokoni concluded separate agreements with various members of
the community (the farmers) who were farming small
plots of mielies
on the land in question. Bokoni was to pay each subsistence farmer
amounts of R18 000 over three years, totalling
R54 000. These
agreements spawned lengthy and costly litigation over a period of
years. More than a hundred farmers issued summons
against Bokoni out
of the Praktiseer Magistrates Court seeking to vindicate their rights
in term of their agreements. The same
attorney represents all the
farmers and the pleadings are substantially identical. There are over
a hundred actions which have
been consolidated, but for present
purposes it is only necessary to deal with the claim of one of the
farmers, the respondent,
Mr Abraham Moropane.
[3]
The issue purportedly before this Court is whether the judgment of
Magistrate Malebane, of 13 March 2017, which dismissed
Bokoni’s
application for leave to amend its plea and counterclaim, was res
judicata. If so, was it permissible for res judicata
to be
raised mero motu by the full bench of the Limpopo Polokwane
High Court (the high court)? The high court, having raised
the
issue, found that the matter was res judicata and dismissed the
application for leave to amend on this basis. It also refused
leave
to appeal. The appeal comes before this Court upon Bokoni
successfully petitioning for leave to appeal.
[4]
It is necessary to briefly set out the history of the matter. The
agreement allegedly concluded between Bokoni and Mr Moropane
provided
that an amount of R54 000 was to be paid in three annual instalments
of R18 000 each, on April 2013, April 2014 and April
2015. The
agreement recorded that the R54 000 was–
‘
[A]
once-off compensation payment, in full and final settlement, for any
actual or contingent losses or damages relating to subsistence
farming on [the] Mieliefield located at Klipfontein Farm (465 KS).’
The
first amount of R18 000 was paid in April 2013 but no further amounts
were paid. This prompted Mr Moropane to sue for payments
of the two
remaining amounts of R18 000 in terms of the written agreement.
[5]
In Bokoni’s plea the written agreement was denied. In the
alternative, it was pleaded that the agreement between the plaintiff
and the defendant was partly oral and partly written, the written
portion was attached to the particulars of claim. As a further
alternative, it was pleaded that the agreement contained a tacit term
that the plaintiff was entitled to compensation only if he
in fact
farmed mielies on the farm. Bokoni’s defence was that Mr
Moropane did not farm mielies at the time of concluding
the agreement
and was therefore not entitled to payment. It instituted a
counterclaim for unjust enrichment in respect of the R18 000
already paid in April 2013.
[6]
On 1 September 2014, Bokoni sought to amend its counterclaim to the
effect that the agreement between Mr Moropane and Bokoni
was partly
written, the written portion being the agreement annexed to Mr
Moropane’s particulars of claim. The oral part
was agreed upon
during March 2013 by representatives of the Plaintiff, duly
authorised, and by Bokoni, represented by Andrew Letlapa,
alternatively by a duly authorised representative. Despite
opposition, the amendment to the counterclaim was granted on 28
November
2014.
[7]
Before the trial commenced the separate actions were consolidated,
although the claims of each plaintiff remained separate claims
against Bokoni. The trial proceeded before Magistrate Malebane in
2016 on the pleadings as they stood at that time, including the
amended counterclaim. At the start of the trial, it was submitted on
behalf of Bokoni that the written agreements were denied and
there
existed tacit agreements, the terms of which would have to be proven.
[8]
Mr Moropane testified, together with two other farmers who had also
instituted actions against Bokoni. At the close of the plaintiffs’
case, Bokoni brought an application for absolution against the 116
farmers who did not testify. On 2 August 2016, Magistrate Malebane
dismissed thirteen of the actions but did not grant absolution in
respect of the balance of the actions. The defence case then
commenced with the testimony of Mr Pasha who was employed by
Bokoni as a community liaison officer. Contrary to the plea,
he
admitted that written agreements had been concluded with the farmers.
Once he had completed his testimony, the trial was postponed
to
30 November 2016.
[9]
Before that date, on 27 October 2016, Bokoni served another notice of
intention to amend its plea and counterclaim in which
the written
agreement was admitted. Bokoni’s attorney, Ms Deidre Venter,
was the deponent to the founding affidavit in the
application for
leave to amend. She explained that after Mr Phasha’s testimony,
they consulted with Mr Letlapa who was employed
by Bokoni as the
socio-economic development co ordinator at the time. It became
apparent that it was he, not Mr Phasha, who
was involved in
concluding the agreements, and they were indeed written agreements.
Bokoni intended calling him as a witness and
in order that the
pleadings were aligned with the evidence, sought to amend its pleas
and counterclaims accordingly.
[10]
Bokoni’s case as amended was that written agreements were
concluded, which properly interpreted, meant that the farmers
would
only be entitled to be compensated if they in fact had a mielie field
at the time of the conclusion of the agreement. It
was stated that
whether they actually farmed mielies on the mielie field was
irrelevant, except insofar as it may be evidence that
they had a
mielie field. The counterclaim was similarly framed that if any
farmer did not have a mielie field at the time of the
conclusion of
the agreement, he was not entitled to the R18 000 paid to him and was
unjustly enriched in this amount at the expense
of Bokoni. In the
specific case of Mr Moropane, the written agreement was still denied
but it was pleaded that he did not have
a mielie field at the time.
This being so, he was not entitled to compensation.
[11]
Mr Moropane’s objections to the leave to amend were, inter
alia, that Bokoni was attempting to introduce a defence not
raised in
its plea and only after their first witness had been cross-examined;
that Bokoni sought to retract an allegation that
the agreement was
partly oral and partly written; and, it would be highly prejudicial
to the plaintiffs to grant the amendment.
[12]
After hearing a substantive application for amendment on 13 March
2017 Magistrate Malebane dismissed the application for leave
to amend
the plea and counterclaim. Bokoni lodged a notice of appeal against
this decision. This was soon followed by Bokoni’s
application
for the recusal of Magistrate Malebane on the grounds of bias,
pertaining to the manner in which he had conducted the
trial thus
far. On 25 April 2017 the recusal application was granted
and Magistrate Malebane ordered that the matter
start de novo before
another magistrate.
[13]
This prompted Bokoni to withdraw its appeal on 30 May 2017 as the
effect of the recusal was that the appeal was now ‘a
nullity’.
Instead, the next day on 31 May 2017, the third notice of amendment
was served, in terms almost identical to the
one that had been
dismissed by Magistrate Malebane.
[1]
A similar
objection was filed by Mr Moropane and Ms Venter again deposed to the
founding affidavit.
[14]
Another substantive application for leave to amend the plea and
counterclaim was launched, this time before Acting Magistrate
Moyane
in the Tubatse Magistrate’s Court. For reasons that are not
germane to this appeal, he, like Magistrate Malebane,
dismissed the
application. Bokoni appealed Magistrate Moyane’s refusal of the
application for leave to amend in the high
court. The appeal was
dismissed by the high court.
[15]
In the high court the issue of res judicata was raised by the high
court for the first time. Up until that point, both parties
had
proceeded on the assumption that all Magistrate Malebane’s
judgments, including the judgment on absolution and the
judgment on
the application for leave to amend, had been set aside as a
consequence of his recusal. The high court first considered
whether
Magistrate Malebane was entitled to order that the matter start de
novo. It held that, as a creature of statute, Magistrate Malebane
did not have that power, but because of the successful application
for his recusal the evidence had to be adduced de novo before
a
different magistrate. This meant, said the high court, that ‘the
slate [was] wiped clean’. Despite this, the high court
held that the judgment of Magistrate Malebane had not been nullified
by his recusal. This judgment was still binding and to find
otherwise
would be ‘tantamount to a procedure, other than an appeal or
review, in terms whereof a final interlocutory procedural
order, is
set aside by the magistrate who is functus officio’. Such a
result could not be countenanced, and the appeal was
dismissed on
that ground.
[16]
To justify its decision the high court concluded that where equity
and fairness demanded, the courts have over the years relaxed
the
common law requirement that res judicata had to be pleaded.
[2]
It,
therefore, found that the high court was entitled to raise the issue
of res judicata and that the application for amendment
before
Magistrate Moyane amounted to an abuse of the process of court.
The high court concluded that ‘the order of Magistrate
Malebane
ha[d] not been nullified by his recusal, is final and is res
judicata’.
[17]
Bokoni, in line with the judgment of the high court, identified three
issues that this Court should deal with on appeal, namely,
whether
the judgment of Magistrate Malebane was res judicata; whether res
judicata could be raised by the high court mero motu
and, if so, was
it appropriate in the circumstances of this case; and finally, the
merits of the application for leave to amend.
But was this the
correct enquiry in light of the recusal of Magistrate Malebane?
[18]
The starting point should, in my view, have been the legal effect of
the recusal. By embarking upon the issue of res judicata
the high
court misconstrued the enquiry. The question to be determined, in the
light of Magistrate Malebane’s recusal, was
the status of the
interlocutory judgment in which he dismissed the application for
leave to amend the plea and counterclaim. Did
his recusal extinguish
the entire proceedings, including the interlocutory judgment or
merely the evidence that had been led? If
the former, this is
dispositive and the question whether the judgment was res judicata
does not arise.
[19]
The recusal was sought, and granted, on the grounds of bias, or a
reasonable apprehension thereof. Whether Magistrate Malebane’s
decision to recuse himself was correct, or whether the bias alleged
warranted the recusal, is not for this Court to determine.
It
suffices that the application for his recusal was granted.
[20]
It has long been accepted by our courts that a decision maker should
be unbiased and impartial. This common-law right is now
buttressed by
the fair trial rights in the Constitution.
[3]
Impartiality
is the cornerstone of any fair and just legal system and an impartial
presiding officer in every judicial proceeding
or tribunal is an
absolute requisite of fairness.
[4]
The rule
against bias requires the recusal of a presiding officer where there
is bias or a reasonable perception thereof. Once the
conduct of a
judicial officer is tainted with bias, this vitiates the proceedings.
The law reports are replete with criminal matters
where the entire
proceedings were rendered a nullity upon a presiding officer having
recused him or herself.
[5]
The reason
for this is straightforward. Unbiased adjudication is fundamental to
a fair hearing: it is an irreducible prerequisite.
Once an
adjudicator recognises his or her own bias, recusal must follow. But
so too does the consequence that the proceedings cannot
stand. They
are set aside because we do not ask whether a biased adjudicator came
to a correct decision. Rather, the law adopts
the position that a
biased adjudication will not be countenanced because it is so
inimical to what fairness requires that the decisions
rendered by it
may not stand.
[21] There is a
dearth of authorities in respect of civil matters but there are no
coherent reasons why civil litigants have a lesser
claim to an
unbiased hearing. Nor why the principle of nullity should not apply
to them.
[6]
In principle
there appears to be no distinction. The reported cases that there
are, have, in the main, involved tribunals. If nullity
is visited
upon the proceedings of an administrative tribunal where the taint of
bias is established, how much more so in a court
of law. In
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
[7]
the dispute
concerned the appealability of an acting judge’s refusal to
recuse himself in a sequestration application. This
Court found that
all proceedings conducted after the recusal were a nullity. This may
suggest that any proceedings before the recusal
are unaffected but on
a proper reading it appears that this Court accepted that once there
is bias, the proceedings are a nullity
from the start. Moch
[8]
invoked the
earlier authority of
Council
of Review,
South
African Defence Force v Monnig
[9]
dealing with
a military tribunal where Corbett CJ said:
‘
What
must be remembered is that in the present case we are concerned with
proceedings of what is in substance a court of law . .
. .If, as I
have held, the court martial should have recused itself, it means
that the trial which it conducted after the application
for recusal
had been dismissed should never have taken place at all. What
occurred was a nullity. It was not, as in many of the
cases quoted to
us, an irregularity or series of irregularities committed by an
otherwise competent tribunal. It was a tribunal
that lacked
competence from the start. The irregularity committed by proceeding
with the trial was fundamental and irreparable.
Accordingly there was
no basis upon which the council of review could validate what had
gone before. The only way the council of
review could have cured the
proceedings before the court martial would have been to set them
aside.’
[22]
To the extent that there may be some ambiguity in
Moch
and
South
African Defence Force
that
it is only the proceedings after recusal that are a nullity, this was
put to rest by this Court in
Basson
v Hugo
.
[10]
There the
primary issue was whether the appellant was obliged to exhaust all
internal remedies before launching an application to
set aside a
decision of the Health Professions Council refusing an application
for recusal of two of its members serving on the
relevant
disciplinary committee. This Court, relying on
Moch
and
Monnig
,
held that if it were found that the members should have recused
themselves, the bias would permeate all the proceedings, including
any appellate proceedings. One cannot cure a nullity observed Shongwe
AP before ordering a remittal back to the high court to determine
the
review.
[23]
Similarly in
Ndimeni
v Meeg Bank Ltd (Bank of Transkei)
[11]
the failure
of an acting judge in the labour court to recuse himself, resulted in
the court proceedings being declared a nullity.
[24]
Therefore, as a general rule, a recusal on the basis of bias will
permeate and invalidate every aspect of a trial, including
the
judgments and orders made in the course of the trial. There are those
unique circumstances where the rationale for the recusal
has limited
impact and to nullify the entire proceedings would not be in the
interests of justice. In
Le
Car Auto Traders v Degswa
[12]
the
appellant, aggrieved by the court’s judgment, made an
application for the recusal of the presiding judge shortly before
the
application for the leave to appeal was to be heard. The basis for
the application was that the respondents had behaved unconscionably
by making contact with the judge’s registrar regarding the date
of the hearing for leave to appeal. The obviously unmeritorious
application was dismissed. The court’s further observations
that the effect of a recusal could only be in respect of prospective
or current proceedings which did not nullify the judgment were in
relation to the very special facts of that case. Apart from being
obiter dictum they have no bearing on the current case as the
refusal of the amendment order formed part of a trial proceeding
still underway.
[25]
The limitation on the principle of nullity was not argued before us
and this is not a case where it would have application.
To find that
the recusal nullified the evidence given before Magistrate Malebane
as well as the judgment on absolution from the
instance but not the
interlocutory judgment given by him, is an unsustainable proposition.
It cannot be that the bias wiped the
slate clean as far as the
evidence goes but did not infect any interlocutory judgment given on
the basis of the same evidence.
Once Magistrate Malebane recused
himself, this vitiated the entire proceedings, including his judgment
on the application
for leave to amend. The inevitable consequence was
that the trial would have to start de novo. The judgment became a
nullity upon
his recusal. Having made this finding, the issue of res
judicata becomes irrelevant.
[26]
To this extent, the appeal against the decision of the high court to
dismiss Bokoni’s application must succeed, although
on entirely
different grounds. However, insofar as the merits of the application
for leave to amend are concerned, the high court
has not pronounced
on the judgment of Acting Magistrate Moyane. Therefore, the
appropriate course of action is to remit the matter
to the high court
for a hearing on the merits of the application for leave to amend the
plea and counterclaim.
[27]
As regards costs, it was not the fault of either party that the high
court misconstrued its enquiry and did not deal with the
merits of
the appeal before it. Although Bokoni has been successful in its
appeal it was not on the grounds argued by it. It follows
that the
most equitable order would be for each party to pay its own costs.
[26]
In the result I make the following order:
1 The appeal is upheld.
2 The proceedings before Magistrate
Malebane are set aside, including the judgment refusing leave to
amend the plea and counterclaim.
3 The matter is remitted to a full
court of the Limpopo Division of the High Court to adjudicate Acting
Magistrates Moyane’s
judgment on the merits of the application
for leave to amend the plea and counterclaim.
4 Each party is to pay its own costs.
_________________
CH NICHOLLS
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
L Hollander
Instructed
by:
Shepstone & Wylie, Johannesburg
Symington & De
Kok, Bloemfontein
For
respondent:
DB Tshabalala
Instructed
by:
Molefe Attorneys, Polokwane
NW Phalatsi & Partners,
Bloemfontein
[1]
It should be
noted that in respect of Mr Moropane, the third amendment continued
to deny the existence of a written agreement.
[2]
For this proposition the high court placed reliance on
Boland
Konstruksie Maatskappy (Edms) Bpk v Petlen Properties (Edms) Bpk
1974 (4) 980 (C).
[3]
Section 34
of the Constitution provides that:
‘
Everyone
has the right to have any dispute which can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum’. See also
Bernert v Absa
Bank Ltd
[2010] ZACC 28
;
2011 (3) SA
92
(CC) para 28.
[4]
South
African Catering and Allied workers Union v Irvin and Johnson
[2000] ZACC 10
;
2000 (3) SA 705
(CC) para13.
[5]
R v
Mhlanga
1959 (2) SA 220
(T);
S
v De Koker
1978 (1) SA 659
(O);
S
v Molowa
1998 (2) SACR 422
(O);
S
v Polelo
2000 (2) SACR 734 (NC).
[6]
Brooks
and Others v S
2019(1) SACR 103 (NCK) para 26 where it is stated that the
authorities are clear, once a presiding officer recuses himself, the
trial is a nullity and this applies to both criminal and civil
matters.
[7]
Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1 (SCA).
[8]
Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(SCA)
at
9D-G.
[9]
Council
of Review,
South
African Defence Force and Others v Mönnig and Others
1992
(3) SA 482
(A) at 495A-D.
[10]
Basson v
Hugo and Others
[2018] ZASCA 1
;
2018 (3) SA 46
para 21.
[11]
Ndimeni
v Meeg Bank Ltd (Bank of Transkei)
[2010] ZASCA 165; 2011 (1) SA 560 (SCA).
[12]
Le Car
Auto Traders v Degswa 10138 CC and Others
[2012]
ZAGPJHC 286.