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[1992] ZASCA 185
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Tshivhase Royal Council and Another v Tshivase and Another, Tshivase and Another v Tshivase and Another (98/89, 171/91) [1992] ZASCA 185; 1992 (4) SA 852 (AD); [1992] 2 All SA 511 (A) (28 September 1992)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
CASE NO 98/89
TSHIVHASE
ROYAL COUNCIL
FIRST APPELLANT
KENNEDY TSHIVHASE
SECOND
APPELLANT
and
JOHN SHAVHANI TSHIVHASE
FIRST
RESPONDENT
TSHIVHASE LOCAL COUNCIL
SECOND RESPONDENT
And in the matter
between:
CASE NO 171/91
KENNEDY TSHIVHASE
FIRST APPELLANT
GILBERT LIGEGE
SECOND APPELLANT
and
JOHN SHAVHANI TSHIVHASE
FIRST RESPONDENT
TSHIVHASE LOCAL COUNCIL
SECOND RESPONDENT
CORAM
:
BOTHA, NESTADT, NIENABER JJA et
NICHOLAS, KRIEGLER AJJA
DATE HEARD
: 21 NOVEMBER 1991, 25 AUGUST 1992
DATE DELIVERED
: 28 SEPTEMBER 1992
2
JUDGMENT NESTADT, JA:
There are two appeals before us, both from judgments of LE ROUX CJ sitting in
the Venda Supreme Court. They relate to a dispute as
to the chieftainship of a
tribe in Venda. The two contenders are Kennedy Tshivhase ("Kennedy") and his
uncle, John Tshivhase ("John").
The first appeal (case no 98/89) is by Kennedy,
as the second appellant, against an order dated 20 September 1988 ("the first
judgment")
which, in effect, confirmed the appointment by the President of Venda
of John as chief. John is the first respondent. The second
appeal (case no
171/91) is also by Kennedy, as the first appellant, against the refusal on 12
November 1990 ("the second judgment")
of an application to rescind the first
judgment. Here, too, John is the first respondent. I explain later who the other
parties
3
to the appeals are. Both appeals are brought with
the leave of the court a
quo
.
As will be seen, the genesis of the
dispute between the parties is to be found in events which took place a long
time ago. And, more
recently, it led to the keenly contested litigation between
them which has culminated in the appeals. The first judgment of the court
a
quo
has been reported (see
Tshivhase Royal Council and Another vs
Tshivhase and Another
1990(3) SA 828 (VSC)). It fully sets out the history
of the dispute and the nature of the proceedings to which, until that stage,
it
gave rise. For this reason, and having regard to our view that subsequent events
(relevant to the second appeal) are the more
important ones, it is unnecessary
to deal with these prior matters in the detail that might otherwise have been
desirable. They can
be summarised as follows:
4
(i) The tribe in question is the Tshivhase tribe. In 1970, its
chief having died, his son Kennedy was installed as chief in his place.
However,
because Kennedy was then still a child (aged seven), the late chief's younger
brother John was appointed as acting chief
of the tribe until Kennedy attained
majority, (ii) This position continued until 1985. Kennedy now being over 21,
steps were then
taken on his behalf to have him formally recognised and
installed, according to tribal custom, as chief in the place of John. (iii)
John, however, was not willing to vacate office. He had on 25 June 1986, in
terms of sec 33(1)(b) of the Venda Tribal and Regional
Councils Act 10 of 1975
(V) read with sec 68 of the Republic of Venda Constitution Act 9 of
5
1979 (V), purportedly been appointed as chief by the President.
John therefore gave notice that he was to be enthroned as chief on
3 July 1986.
(iv) This led to the launching on 2 July 1986 of the first of a number of
applications in the Venda Supreme Court. In
these applications orders were
sought relating to the rival claims of Kennedy and John to the chieftainship of
the tribe. The first
one was brought as a matter of urgency by a body called the
Tshivhase Royal Council (the first appellant in the first appeal and
allegedly
represented by Gilbert Ligege ("Ligege"), the second appellant in the second
appeal). The relief claimed against John on
behalf of Kennedy was an order
preventing the
6
installation of John as chief. (Later, Kennedy was joined as the second
applicant.) The Tshivhase Local Council (the second respondent
in both appeals)
was also cited. Despite opposition, the application succeeded to the extent that
on 3 July 1986 an order was granted
by VAN DER SPUY AJ interdicting the
installation ceremony of John pending the resolution of the dispute as to the
chieftainship by
a person holding the tribal position of Vho Makhadzi. (v)
Unfortunately this did not bring about any finality. On 13 July 1986 a
person
purporting to be the Vho Makhadzi and acting pursuant to the order referred to
decided that John be the chief. On 14 August
1988 the President again, in terms
of the aforementioned
7
legislation, in effect confirmed John's appointment as such. A further
ceremony at which John was to be installed was arranged for
21 August 1986.
Kennedy, however, was not prepared to accept John's appointment as chief. On 17
August 1986 he brought a second urgent
application against John to stop his
installation as chief. Kennedy alleged that the decision arrived at on 13 July
that John be
the chief was invalid. Kennedy claimed an order declaring himself
to be the chief. (vi) Opposing affidavits having been filed by
John, the matter
came before KLOPPER ACJ on 20 August 1986. A temporary interdict in the terms
sought was granted and the matter
postponed for the filing of further
8
affidavits.
(vii) These affidavits gave rise to certain legal
and factual disputes concerning the parties'
rival claims to
the chieftainship. The result
was that when the matter came before
court
again on 21 November 1986, it was by agreement
once more postponed,
this time
inter alia
for
the hearing of oral evidence on a number
of
factual issues. The temporary interdict
granted on 20 August 1986 was
ordered to stand
"pending the final determination of the
trial".
(viii)
The date eventually fixed for the hearing was
9 November 1987. On that day,
however, the
matter did not proceed. The reason was the
intervention of
the President. He had decided
to invoke the provisions of sec 4 of the
9
Vhuhosi Administration Act, 14 of 1986 (V) ("the Act") and to refer the
dispute between Kennedy and John to a body called the Khoro
ya Mahosi ("the
Khoro"). It is a council of chiefs which acts as an advisory body to the
President. Sec 4 (it is quoted at 838 D
- E of the reported judgment), in so far
as it is relevant, provides that whenever there is any dispute in connection
with
inter alia
the installation of a chief, the President may request
the Khoro to "assist with the solution: Provided that no dispute will be
entertained
after...installation". The President therefore caused a letter dated
4 November 1987 to be written to the registrar of the court
requesting the
parties to agree to a postponement until the findings of the
10
Khoro were made known. The full terms of the letter are quoted at 834 D-G of the
reported judgment. The parties agreed to the postponement.
(ix) The Khoro met on 27 November 1987. It resolved (so the parties thought)
that John be the chief. And according to a letter dated
11 January 1988 written
by the Director-General: National Assembly and Local Governments to the parties'
attorneys (the letter is
quoted at 835 A-C) the President "accepted the advice
given to him" by the Khoro.
(x) There followed on 15 June 1988 a third application to court. This one was
brought by John. It was for an order dismissing Kennedy's
still pending
application and in particular that the temporary interdict
11
granted in his favour on 20 August 1986 be discharged. The submission made in
John's founding affidavit was that the issues referred
to trial on 21 November
1986 ((vii) above) had been "superseded by the...procedure initiated
and...confirmed by...the...Presi-dent"
under sec 4 of the Act. (xi) Kennedy
opposed the application. He did not deny the existence of a "dispute in
connection with...installation".
Nor did he contend that the proviso to sec 4(1)
applied. Presumably this was because, having regard to the postponement on 9
November
1987, it was recognised that he had consented to the entertainment of
the dispute by the Khoro and the President under the section.
Kennedy's case
rather was that the President's purported
12
invocation of sec 4 and pursuant thereto his appointment of John as chief
were invalid; the issue of who should be the chief had not
been superseded or
resolved; Kennedy's application for an order that he be declared the chief
should therefore be allowed to proceed;
and John's application should be
dismissed. Tne main argument was that sec 4 does not empower either the Khoro or
the President to
deal with questions concerning who should be chief; only
disputes as to installation fall within the purview of the section; the
dispute
between Kennedy and John primarily concerned one of identification of the chief;
and in terms of sec 2 of the Act (see 838B)
the resolution of such a dispute
vested in the royal family of the tribe. A
13
second submission was that, in any event, there were certain procedural flaws
or irregularities which fatally affected the President's
acceptance of the
Khoro's advice and consequential appointment of John as chief. (xii) On 20
September 1988, LE ROUX CJ granted John's
application. The learned judge found
(at 843G) that the President "has acted to solve the dispute and has appointed
John... as the
new permanent chief of the Tshivhase tribe. No adequate grounds
have been shown why he should not be installed as khosi." In the
result, John's
appointment as chief was, at least by necessary implication and as I have
already stated, confirmed. This is the order
under attack in the first
appeal.
14
The first appeal was on the roll for 21 November 1991. Also
then before us were certain applications for condonation by Kennedy and
his
co-appellant. They related to the late filing of their notice of appeal and
their failure to timeously lodge the record. When
the matter was called, Mr
Zeiss
on behalf of the respondents drew attention to and relied on a
further breach of the Rules, namely that no power of attorney as required
by the
then AD Rule 5(3)bis(a) (now 5(3)(b)) had been lodged. Counsel submitted that in
the circumstances the appeal be struck off
the roll. On behalf of the
appellants, this was opposed. The preliminary issue having been argued, an order
was made (i) that the
applications for condonation and the appeal itself be
postponed
sine
die; (ii) that the appellants pay the wasted costs,
including the costs of two counsel; and (iii) that any application for
condonation
15
in respect of the power of attorney be filed within one
month.
This brings me to the events relevant to the second appeal. They begin to
unfold shortly after the court a
quo
's first judgment and at a stage when
the appeal against it had already been noted. One takes up the narrative on 3
March 1989. On
this date the Khoro met for the first time since 27 November 1987
((ix) above). The minutes of the previous meeting were produced
for
confirmation. They reflected that the Khoro had resolved that John be the chief.
It would seem that this came as a surprise to
members. They stated that this had
not been the Khoro's decision. The decision had been quite different, namely
that the Tshivhase
Royal Family (or the tribe) settle the problem of who should
be the chief. Some months later Kennedy and Ligege came to hear of what
had
happened.
16
They understandably took up the attitude that this put a
different complexion on things. The result was the bringing by them (in June
1990) of the application to rescind the first judgment. (No point has been made
of the fact that whereas the first judgment involved
Ligege acting on behalf of
the Tshivhase Royal Council, the application to rescind was brought by Ligege in
his personal capacity.)
The application was based on the allegation that it had
been granted as a result of a mistake common to the parties, viz that the
Khoro
had resolved that John should be the chief. Reliance was placed on Rule 42(1)(c)
of the Rules of the Venda Supreme Court. It
is in the same terms as Rule
42(1)(c) of the Rules of the Supreme Court of South Africa. It reads:
"42.(1) The court may, in addition to any other
powers it may have,
mero motu
or upon the
application of any party affected, rescind or
vary:
(c) an
order or judgment granted as the result of a
17 mistake common to the
parties." John and the Tshivhase Local Council opposed the application. As I
have said, it was refused. This
is the order under attack in the second
appeal.
It was obviously desirable that both appeals be placed on the roll
for hearing on the same day; and this, as I have indicated, was
done. Virtually
the same parties are involved; and both appeals have a common factual
background. It is true that they are based
on different substrata. The first
appeal presupposes that the Khoro's decision was that John should be the chief;
nevertheless, so
it is said (for the reasons explained in (xi) above), the
dispute was not effectively resolved; John's application should therefore
have
been dismissed; the first judgment should not have been granted. The second
appeal, on the other hand, is based on the contention
that the
18
Khoro never in fact resolved that John should be the chief;
the first judgment having accordingly been granted as a result of a mistake,
it
should have been rescinded. It will be evident, however, that both appeals
involve an attack on the first judgment; both are aimed
at setting aside the
appointment of John as chief in terms of such judgment. In the event of this
happening, the parties were agreed
that the dispute as to the chieftainship
would not go back to the Khoro or the royal family (or the tribe). The matter
would have
to be remitted to the Venda Supreme Court for it to resolve the issue
of who should be chief. This would be achieved by the continuation
of the
proceedings which were postponed on 9 November 1987 ((vii) and (viii)
above).
It follows from what has been said that success on the one appeal would
render the other
19
redundant. For this reason, only the one appeal was argued,
namely the second one. On the conclusion of argument, counsel were advised
that
in the event of the second appeal being dismissed, the first appeal would have
to be set down for argument afresh.
I turn then to a consideration of the
second appeal. Here, too, there have been certain procedural irregularities. The
preliminary
issue which therefore arises for determination is whether, in the
face of the respondent's opposition, they should be condoned. One
breach of the
Rules relates to the appellants' power of attorney. A power dated 2 April 1991
was timeously prepared by the appellants'
former Venda attorney and sent to a Mr
Gous, his Bloemfontein correspondent. But it was defective in certain respects.
Moreover,
it was never lodged. The reason for this is given by Mr Gous in an
affidavit in support of an application for
20
condonation. He states that he thought it was unnecessary to
do so. He alleges that he had previously been told by a member of the
registrar's staff in the Appellate Division that "it was no longer necessary to
file a power of attorney"; though he was "uncertain
whether this was in fact so"
he "accepted her word"; he had not lodged notices of appeal "that often" in this
Court. He only discovered
his mistake on 21 November 1991. The result was that
in breach of Rule 5(3) bis(a) a power of attorney was tendered almost a year
out
of time. This occurred on 17 February 1992 when an application for condonation,
to which was attached a fresh power of attorney
dated 22 January 1992, was
served and filed. A second respect in which there was non-compliance with the
Rules relates to the furnishing
of security. The respondents were sent a
document in which the appellants declared themselves jointly and
21
severally liable for the payment of security (in an amount of
R10 000). Obviously this undertaking does not constitute the furnishing
of
security within the meaning of Rule 6(2); it was no security at all. Thirdly,
although a notice of appeal was in terms of Rule
5(1) timeously lodged, the copy
served on the registrar of the Venda Supreme Court and on the respondents' Venda
attorney differed
from the notice lodged with the registrar of this Court. The
heading of the former notice reflects the matter as being "in the Supreme
Court
of Venda". And it bears the stamp of the registrar of that court with the date 4
April 1991. The notice of appeal lodged with
the registrar of this Court,
however, has a heading reflecting the matter as being in this Court and it is
differently stamped, viz
with the stamp of the registrar of the Appelate
Division dated 19 April 1991. Finally, the respondents take the
22
point that the record lodged in terms of Rule 5(4) was
defective in that it did not include the judgment of the court a quo granting
leave to appeal. This is indeed so. The appellants' Venda attorney mistakenly
thought that only an order (dated 21 March 1991) granting
leave had been made
but that no reasons were given. The omission was only remedied when a copy of
the relevant judgment was annexed
to a petition for condonation dated 27 July
1992. But even now, matters are not what they should be. The judgment has
neither been
revised nor signed by LE ROUX CJ; and it is not verified by the
transcriber of the judgment (which was mechanically recorded).
This Court has often said that in cases of flagrant breaches of the Rules,
especially where there is no acceptable explanation therefor,
the indulgence of
condonation may be refused whatever the merits of the
23
appeal are; this applies even where the blame lies solely with
the attorney (see, for example,
P E Bosman Transport Works Committee and
Others vs Piet Bosman Transport (Pty) Ltd
1980(4) SA 794(A) at 799 D-H). On
behalf of the respondents, Mr
Zeiss
submitted that the present matter was
such a case. He asked that the appeal should, in the circumstances, be struck
off the roll.
The argument is not without merit. The handling of the appeal by
the appellants' attorneys calls for critical comment. Mr Gous was
seriously
remiss in assuming that a power of attorney was unnecessary. It was his duty to
know the Rules (
Ferreira vs Ntshinqila
1990(4) SA 271(A) at 281G). He was
not entitled to act on what he alleges he was told by a member of the
registrar's staff. The appellants'
Venda attorney was also guilty of a lack of
diligence in a number of respects. As I have said, the original
24
power of attorney drafted by him was defective; manifestly,
the security bond which he prepared and which the appellants signed, did
not
comply with the Rules; he is to blame for the differences in the notices of
appeal that were lodged; and he ought to have known
that a reasoned judgment was
given when leave to appeal was granted. Criticism of the Venda attorney does not
end here. The application
to condone the failure to lodge a power of attorney is
in the form of a notice of motion. It should have been by petition. The
application
is neither paginated nor indexed. There is no explanation for the
delay (from 21 November 1991 to 17 February 1992) in bringing the
application.
The supporting affidavits contain a number of spelling mistakes (or typing
errors). Nothing is said, as it should have
been, about the length of time he
has been in practice. Not even an apology for what can only be
25
categorised as work ill-becoming an attorney, is tendered.
These considerations notwithstanding, I have come to the conclusion that the
argument that condonation summarily be refused should
not be acceded to. There
is nothing sinister in the fact that the notice of appeal lodged in this Court
is different to that served
on the respondents' attorney and lodged with the
Venda Supreme Court. The objection is a somewhat technical one. So, too, is the
fact that a revised and signed judgment granting leave to appeal is not before
us. Moreover, in mitigation of the attorney's original
omission to include this
document in the record, is the fact that he had been told by the registrar of
the Venda Supreme Court that
"no judgment on the application for leave to appeal
was given". The failure to lodge proper security (which, incidentally, the
respondents'
26
attorney never complained about for
approximately eight
months) has been remedied. Neither Kennedy nor
Ligege
can in any way be blamed for what has happened. Mr
Coetzee
,
on their behalf, rightly emphasised that they
have at all stages demonstrated
a firm intention to
appeal. Their disquiet at the way their case has
been
dealt with is a factor to be taken into account and is
shown by their
having terminated the mandate of Mr
Gous and the Venda attorney and appointed
new attorneys
in their stead. There has been no real prejudice to
the
respondents. The prosecution of the appeal has not
been delayed. Its outcome
is of vital importance not
only to the appellants (and particularly Kennedy)
but to
the tribe as a whole. It would be unfortunate were
non-compliance
with the rules in effect to determine the
issue of the chieftainship. In the result, it seemed
to us, that in the exercise of our discretion, argument
27
on the merits should (as in
Federated Employers Fire and
General Insurance Co Ltd and Another vs McKenzie
1969(3) SA 360(A) at 364A-C
and
Louw vs W P Kooperasie Bpk
1991(3) SA 593(A) at 597 B-C) be allowed
to proceed in order to determine what the prospects of success are and thus
ultimately whether
the application for condonation should be granted and the
appeal succeed. The matter continued on this basis.
In deciding the merits of the appeal, it is necessary in the first place to
consider whether the appellants have established what
is basic to their case,
namely that the true decision of the Khoro was that the dispute as to the
chieftainship be referred to the
Royal Family. In support of the proposition
that this is what happened, the appellants relied in the first place on the
affidavits
of seven chiefs who as members of the Khoro, and unlike Kennedy,
attended the meeting held on
28
27 November 1987. It is clear from what they say that
it was never decided that John be appointed the chief;
the issue was
referred back, according to some, to "the
Tshivhase tribe", according to others to "the Tshivhase
Royal Family" and
according to one deponent to "the
Tshivhase people". It has not been suggested that
there is any significance in these differences. Chief
Nelwamondo gives the reason for the decision. He
states:
"That the meeting resolved that the Khoro ya Mahosi was not in a position to
entertain the Tshivhase chieftainship problem, since
the Khosi who is Kennedy
Tshivhase has already been appointed as the rightful heir to the throne;
That because it is not alleged that the said Kennedy Tshivhase is guilty of
any misconduct, it would be advisable to refer the matter
back to the Royal
family of Tshivhase to sort out the matter."
Secondly, there are the affidavits of two Venda
government officials who, in addition to confirming what
29
the decision of the Khoro was, explain how it came about that
the minutes wrongly reflected what was decided. The learned judge a
quo's
description of their disclosures as "startling" and "rather sensational" is
hardly an exaggeration. It appears that at the meeting
the President's initial
attitude was that John should be the chief. However, some chiefs spoke out
against this. The President then,
in effect, recanted and at his suggestion the
decision referred to was taken. Subsequently, minutes which reflected this were
prepared.
They were presented to the President for his approval by one of the
officials, a Mr Joseph Ramabulana. He was the Director-General
of what was then
known as the Department of National Assembly and Local Governments. At the
President's instance the minutes were
altered and returned to Mr Ramabulana.
They now read that the Khoro had resolved that John be
30
the chief. Mr Ramabulana having been at the meeting, knew this
to be incorrect. He went to speak to the President about the matter
and pointed
out the error. However, the President's reaction was that the minutes as altered
were nevertheless to be circulated.
When Mr Ramabulana objected to this, the
President accused him of insubordination. In the result, he complied. The
minutes as altered
were sent out and the letter dated 11 January 1988 ((ix)
above) written.
In April 1988, the President died. It was only thereafter that what is said
to be the true decision of the Khoro was revealed. As
I indicated earlier, this
took place at the meeting of the Khoro on 3 March 1989. And it was not until
later and after there had
been a change of government in Venda, that Mr
Ramabulana came forward with his account of what had happened. Before that,
though
obviously aware of the
31
application that John had brought ((x) above), he remained
silent. So there was not only a culpable delay in the version now relied
on
being advanced, but the allegations on which it is founded are made against a
deceased person. In these circumstances, the appellants'
evidence must be
scrutinised with caution (see
Randaree and Others NNO vs W H Dixon and
Associates and Another
1983(2) SA 1(A) at GA) . Moreover, the type of
conduct now attributed to the late President will not lightly be found proved
(Hoffmann
and Zeffertt:
The South African Law of Evidence
, 4th ed,
528-9).
Despite these considerations, however, I am of the opinion that the
appellants' evidence as to what the Khoro decided must be accepted.
There is, in
essence, nothing to controvert it. John's bald denial in his answering affidavit
of what the chiefs and the two officials
say does not raise a genuine dispute of
fact.
32
He was not present when the chieftainship was discussed at the
meeting on 27 November 1987. And obviously he cannot deal with what
happened
between Mr Ramabulana and the late President. John alleges though that after the
meeting, he was congratulated by one of
the chiefs, namely Chief Netsianda. The
inference sought to be drawn from this is that the meeting decided that John be
the chief.
But Chief Netsianda in an affidavit annexed to the appellants'
replying affidavits denies having congratulated John. And he goes
on to confirm
that the resolution taken at the meeting was that the matter be referred to the
tribe. Nor does it avail John to say,
as he does, that he unsuccessfully
attempted to obtain affidavits from certain other persons who attended the
meeting. Indeed, some
of them have now deposed to affidavits and these, too, are
annexed to the appellants' replying affidavits. Not
33
all of them deal with what happened at the meeting but those
who do also confirm the appellants' version of what resolution was taken
there.
As regards Mr Ramabulana's delay in disclosing what had happened, it appears
that he was in February 1988 transferred to a
different government department.
He states in a supplementary affidavit that when this happened "one cannot go
and interfere with
the department of another Director-General". This might not
be a good excuse for his conduct; but it does explain it. The respondents
in
their affidavits, however, attack the veracity of the appellants' version of
events on a number of other grounds. One is that
the persons who have deposed to
affidavits in support of their case have been intimidated or unduly influenced.
Another is that some
of them are partial to the appellants. There is no factual
basis for either of these assertions.
34
Finally, it was argued that the minutes of the meeting
held
on 3 March 1989, properly construed, do not support
the appellants' version; that far from correcting the
minutes of the
previous meeting they confirm them.
There is no merit in the point. It is true that in the
minutes of the 1989 meeting it is recorded that "Minutes
of the previous meeting were read and adopted as a true
record". But the next paragraph of the minute, with
specific reference to the 1987 resolution, states that:
"(It) is not the decision reached by the Council of
Mahosi; the correct decision being the one that
reads or
says:
the Tshivhase Royal Family should be allowed to
settle the problem on who should succeed to their
throne."
In the result, and by way of summary, it seems
to me that the issue under consideration was capable of
resolution on the papers. This is what LE ROUX CJ
decided and I think he was right. The appellants'
35
evidence as to what the true decision made at the meeting of
the Khoro on 27 November 1987 was, was overwhelming. And there was nothing
to
gainsay it.
On this factual basis, the question is whether the first judgment
was granted "as the result of a mistake common to the parties" within
the
meaning of this expression as used in Rule 42(1)(c). Before attempting to answer
it, I would make one or two general observations
as to the effect and meaning of
the Rule. It has its counterpart in sec 36(b) of the Magistrates' Court Act, 32
of 1944 (and in that
section's predecessor, ie sec 36(2) of Act 32 of 1917).
Herbstein and van Winsen:
The Civil Practice of the Superior Courts of South
Africa
, 3rd ed, 468 say that it (or rather Rule 42 generally) effects a
codification of the common law. Whether or not this is entirely
correct, it is
clear, as the learned authors go on to
36
observe, that the Rule sets out exceptions to the general
principle that a final order, correctly expressing the true decision of
the
court, cannot be altered by that court. The judge is
functus officio
(
Firestone South Africa (Pty) Ltd vs Gentiruco A.G.
1977(4) 5A 298
(A) at 306 F-G). I agree with the statement of VIVIER J in
Theron NO vs
United Democratic Front (Western Cape Region) and Others
1984(2) SA 532(C)
at 536 G, that the court has a discretion whether or not to grant an application
for rescission under Rule 42(1).
In relation to sub-rule (c) thereof, two broad
requirements must be satisfied. One is that there must have been a "mistake
common
to the parties". I conceive the meaning of this expression to be what is
termed, in the field of contract, a common mistake. This
occurs where both
parties are of one mind and share the same mistake; they are, in this regard, ad
idem
(see
37
Christie:
Law of Contract in South Africa
, 2nd ed, 382
and 39 7-8) . A mistake of fact would be the usual type relied on. Whether a
mistake of law and of motive will suffice
and whether possibly the mistake must
be reasonable are not questions which, on the facts of our matter, arise.
Secondly, there must
be a causative link between the mistake and the grant of
the order or judgment; the latter must have been "as the result of" the
mistake.
This requires, in the words of ELOFF J in
Seedat vs Arai and Another
1984(2) SA 198(T) at 201 D, that the mistake relate to and be based on something
relevant to the question to be decided by the court
at the time. Other cases
which illustrate this are Ex
Parte Barclays Bank
1936 AD 481
and
Van
Zyl vs Van der Merwe
1986(2) SA 152 (NCD). The principle is that you cannot
subsequently create a retrospective mistake by means of fresh evidence which
was
not relevant to any
38
issue which had to be determined when the original order was
made. The reason is obvious: the court would at that time have had before
it no
evidence and thus no wrong evidence on the point; hence there would have been no
mistake. Contrast this with the case where
the subsequent evidence is aimed at
showing that the factual material which led the court to make its original order
was, contrary
to the parties' assumption as to its correctness, incorrect. Here,
one would have the type of situation envisaged by Rule 42(1)(c).
One finds in the reports examples of the successful invocation of Rule
42(1)(c) (see
Ex Parte Jooste en 'n Ander
1968(4) SA 437(0),
Ex Parte
Kruger
1982(4) SA 411 (SECLD) as also, in relation to the corresponding
provisions in the magistrates' court, the cases cited by Jones and
Buckle:
The Civil Practice of the Magistrates' Courts in South Africa
8th ed,
139-
39
140). But there do not appear to be many such cases. The
reason, I would apprehend, is that the circumstances giving rise to the
operation
of the Rule are inevitably somewhat unusual. In my opinion, however,
our matter is such a case. It provides a text-book example of
a judgment granted
as a result of a mistake common to the parties. Plainly, both Kennedy and John
believed the statement in the letter
dated 11 January 1988 ((ix) above) that the
Khoro had "after deliberating on this matter...resolved that (John) be (the
chief)" and
that the President "has accepted the advice given to him by
the...Khoro". They, therefore, assumed a state of affairs which, as it
turned
out, was a wrong assumption. In other words, they laboured under a common
mistake. It was, moreover, a mistake of fact and
clearly i
ustus
.
But was the mistake the cause of the grant of
40
the first judgment, ie has the second requirement of Rule
42(1)(c), discussed earlier, been satisfied? In my opinion, the answer is
clearly in the affirmative. The evidence as to the Khoro's true decision was not
fresh evidence of the kind dealt with in
Barclays Bank
,
Seedat
and
Van Zyl
,
supra
. It simply establishes that the parties' assumption
that the Khoro had recommended that John be the chief was incorrect; that there
had therefore been a common mistake. This mistake was not only relevant, it was
fundamental. The assumption that the Khoro had recommended
John as chief was the
substratum of the first judgment. Consider the following. The reason for the
postponement of the proceedings
which were pending on 9 November 1987 was the
desire of the President to refer the controversy concerning the chieftainship to
the
Khoro for it "to assist with the solution" thereof ((viii) above).
41
John's subsequent application ((x) above) was based on
the allegation in his founding affidavit that the Khoro
had resolved that
he be the chief and that the President
"has accepted the advice" of the Khoro. And Kennedy's
answering affidavit admits this. One looks then to the
first judgment itself. The (supposed) decision of the
Khoro is at the forefront of the court's reasoning.
Various attacks by Kennedy on the validity of the
Khoro's decision are rejected and on this basis the
following conclusion is arrived at (at 840 A-B):
"It seems to follow that the dispute referred to the khoro ya mahosi for its
finding and recommendation encompassed the main dispute
between the parties in
this Court, viz who should be chief of the Tshivhase tribe. Both parties
assented to this submission on 9
November 1987, and both are bound by the
result, if it has been fairly and properly attained."
In what
follows, LE ROUX CJ finds that the result was
fairly and properly attained.
42
There is, however, one aspect of the
judgment
that requires closer attention. It relates to the
last-mentioned point, viz that the decision of the Khoro
was fairly
arrived at. One of Kennedy's contentions was
that the Khoro should have applied the
audi
principle
and afforded him a hearing. In rejecting this
argument, the court a
quo
held,
inter alia
, that the
Khoro acts in a purely advisory capacity; the President
was not bound by the advice given. And in refusing the
application to rescind, ie during the course of the
second judgment, the learned judged returns to this
theme. Thus he states:
"It is clear that the Khoro is a purely advisory body with no executive
powers and it was so held in the
Tshivhase
judgment which is now on
appeal. It was for this very reason that the
audi alteram partem
rule was
held to be inapplicable. In my view the State President could consult any other
body or person before reaching a decision
on any issue submitted to the Khoro,
or he could in his discretion appoint a commission of inquiry to investigate the
very same question
which he had
43
previously referred to the Khoro if he is not satisfied that their findings are
in accordance with 'the law and customs' (sec 4(3)),
but is not obliged to do
so. The controversy concerning the minutes is therefore irrelevant as far as the
State President's decision
is concerned and even if the Court had been aware of
the duplicity practised on it, it would not have affected its
decision."
I am not sure that this is a correct interpretation
of
the President's powers under the Act. But in any
event, this is beside
the point. What the parties
agreed to on 9 November 1987 was that the matter
be
referred to the Khoro for its decision. They did not
agree that the dispute be decided by the President
irrespective of the Khoro's decision. In my view,
therefore, the true
basis for granting the first
judgment could only have been and was the Khoro's
supposed recommendation
to the President that John be
the chief. This being so, the order made was
indubitably as a result of the parties' mistaken
44
assumption that the Khoro had made this recommendation.
Obviously LE ROUX CJ was under the same misapprehension. Had he known the
truth,
he would not have been entitled to grant John's application.It would have been
bound to fail. And Kennedy's then pending application
((v) above) would have had
to proceed.
Mr
Zeiss
made one further submission, namely that the first appeal was
a bar to the application for rescission. I disagree. In principle,
I can see no
reason why Kennedy and Ligege were not entitled to pursue this quite separate
and independent remedy, irrespective of
the pending first appeal. Rule 42(1) (c)
does not (unlike sec 16(c) of Act 32 of 1944) require that no appeal should be
pending.
Nor, as counsel suggested, were the appellants put to any election
between pursuing the appeal and applying for rescision. They could
do both.
45
In the result, the application for rescission should have been
granted. It follows that the second appeal must succeed. So too, therefore,
must
the applications for condonation. The first appeal, as I indicated earlier,
becomes, in these circumstances, pointless. To regulate
the further conduct of
the litigation certain special orders will be made. These speak for themselves.
It remains to refer briefly
to certain orders for costs that will also be made.
Those relating to the applications for condonation were tendered by the
appellants.
There is no reason, however, why they should not be awarded their
costs in the court a
quo
and on appeal. The costs of John's application
which led to the first judgment should be costs in the main application. Neither
party
was at fault here; they were both misled. The appellants tendered the
costs of the applications for condonation
46
in relation to the first appeal.
The following order is made:
A. As to the first
appeal (case no 98/89):
(1)
No order on the appeal
itself is made.
(2) The costs of the appellants' applications for condonation including the fees
of two counsel are to be paid by them jointly and
severally.
(3) Subject to this Court's order dated 21 November 1991, the costs of the
appeal, including the fees of two counsel are, however,
to be costs in the
application brought by the appellants under case no M 177/86 on 17 August
1986.
B. As to the second appeal (case no
171/91):
(1) The applications for condonation are granted. The appellants are to pay
the costs thereof including the fees of two counsel.
47
(2) The appeal succeeds and is upheld with costs including the fees of two
counsel and including the costs (on an opposed basis)
of the application to the
court a
quo
for leave to appeal.
(3) The order of the court a
quo
dated 12 November 1990 is set aside. In
its stead the following is substituted:
(a) The judgment granted on 20 September 1988 (case no M 154/86) is rescinded.
The respondents are to pay the costs of the application
to rescind.
(b) The costs of the proceedings giving rise to the judgment referred to in
subparagraph (a) are to be costs in the prior application
(case no M 177/86)
(referred to in paragraph A (2) hereof).
48
(4) This application (case no M 177/86) is to proceed. Pending its outcome, the
temporary interdict granted on 20 August 1986 is
to remain in
force.
NESTADT, JA
BOTHA, JA )
NIENABER, JA ) CONCUR
NICHOLAS, AJA )
KRIEGLER,
AJA )