Brief Summary

Constitutional Law — Access to courts — Rescission of judgment — Baphalane Ba Ramokoka Community sought to rescind a previous judgment affirming the Mphela family's claim to Haakdoornbult farm, arguing it violated their right of access to courts as they were not parties to the proceedings — The Community claimed that the judgment affected their pending land claim to Pylkop, which was part of the same historical context. Legal issue — Whether the Constitutional Court's judgment in the Haakdoornbult case impinged on the Community's claim to Pylkop and whether the Community had the right to rescind the judgment. Holding — The Court held that the Community's application for rescission was justified as the judgment in question had implications for their pending claim, and it was necessary to ensure their right of access to courts was upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for rescission (and, in the alternative, partial “expungement”) of an earlier Constitutional Court judgment and order in Mphela and Others v Haakdoornbult Boerdery CC and Others (the Haakdoornbult judgment). The rescission application was brought in the Constitutional Court and decided by Cameron J (with the concurrence of the other members of the Court).

The applicant was the Baphalane Ba Ramokoka Community, represented by its leader, Kgosi Modise Tonse Ramokoka. The principal opposing party was the Mphela family (the first respondent), whose restitution claim to the farm Haakdoornbult had substantially succeeded in the earlier litigation. The second to seventh respondents were the former owners of Haakdoornbult who had been the main respondents in the prior proceedings. The eighth respondent was the Minister for Rural Development and Land Reform, responsible for the administration of the restitution framework. Only the Mphela family opposed the rescission application.

The procedural history was central to the dispute. The Mphela family’s restitution claim to Haakdoornbult had been litigated through the Land Claims Court, the Supreme Court of Appeal, and ultimately the Constitutional Court, where the outcome confirmed an apportionment restoring 86% of Haakdoornbult to the family. Separately, the Community had a pending restitution claim to land including Pylkop, a different farm to which the Mphela family had been relocated after their removal from Haakdoornbult.

The general subject-matter of the dispute was whether the Constitutional Court’s earlier Haakdoornbult judgment, which contained statements about Pylkop in the course of dealing with Haakdoornbult, prejudiced or impeded the Community’s pending claim to Pylkop; and if so, whether rescission (or expungement of certain passages) was necessary to protect the Community’s right of access to courts.

2. Material Facts

The undisputed background was that Haakdoornbult is a farm near Thabazimbi. In August 1918, members of what became the Mphela family acquired Haakdoornbult and occupied and farmed it for decades. Under apartheid-era land policies, Haakdoornbult was treated as an unacceptable “black spot”. Under pressure, the Mphela family sold Haakdoornbult in 1951.

In 1953, using proceeds from the sale, the family bought a separate farm, Pylkop 26JQ, from the South African Native Trust. Despite this purchase, the family remained on Haakdoornbult and resisted finalising the transfer. On 2 August 1962, the new owners and the police forcibly removed the family from Haakdoornbult and relocated them to Pylkop.

The Mphela family lodged a restitution claim for Haakdoornbult in 1996 under the Restitution of Land Rights Act 22 of 1994. A central defence raised by the Haakdoornbult landowners was that the family had received just and equitable compensation for the dispossession through receiving Pylkop, so restitution of Haakdoornbult should be refused or limited. In March 2005, the Land Claims Court upheld the family’s claim and ordered restoration of the farm. It later declined to order that Pylkop be returned to the state, noting among other things that the Minister had indicated she would not seek Pylkop’s return.

On appeal, the Supreme Court of Appeal held that restoring the whole of Haakdoornbult would result in overcompensation if the family also retained Pylkop. It therefore ordered restoration of 86% of Haakdoornbult, and remitted to the Land Claims Court a question framed in terms of whether the family should contribute to acquisition costs by “putting part of Pylkop in the pot”.

The Constitutional Court in the Haakdoornbult judgment upheld the apportionment (86% restoration), but set aside the remittal relating to Pylkop. In its reasons, the Court explained that the issue of returning Pylkop to the state did not arise, because the family had not “received” Pylkop as compensatory land; instead they had bought it with the sale proceeds from Haakdoornbult, and thus (for purposes relevant to that case) Pylkop belonged to the family and no claim could be made that it be returned to the state under the Act.

Separately, the Community had lodged a restitution claim in 1998 to land including Pylkop. That claim was published in the Government Gazette in August 2005 and was referred to the Land Claims Court following mandamus proceedings. The hearing was set down for March 2010, and the Mphela family applied to intervene, asserting an interest because of the Community’s claim to Pylkop. The Land Claims Court permitted their joinder.

In the course of pre-trial exchanges in the Pylkop matter, the Mphela family’s representatives wrote to the Community in March 2010 suggesting that the Community should first seek rescission of the Haakdoornbult judgment. The Community then pursued the present rescission application in the Constitutional Court in August 2010, initially seeking rescission of the entire Haakdoornbult judgment and order, and later amending its notice of motion to seek a narrower form of relief aimed at “rescinding or expunging” certain statements in paragraphs 54 and 56 of the Haakdoornbult judgment and remitting an “issue” concerning Pylkop to the Land Claims Court.

The Community asserted it was not a party to the Haakdoornbult litigation, that it lacked timeous knowledge of it, and that the earlier judgment violated its section 34 right of access to courts because (as it framed the complaint) it amounted to “a decision pertaining to” Pylkop. It also alleged that legal representatives involved in both sets of litigation had an ethical duty to bring the Community’s Pylkop claim to the attention of the courts in Haakdoornbult, and that failure to do so misled the courts. These allegations led to separate striking-out and de bonis propriis cost consequences in the Land Claims Court, and remained relevant in the Constitutional Court primarily in relation to costs and counsel conduct.

A factual dispute arose regarding when the Community became aware of the Haakdoornbult litigation. The Constitutional Court issued directions requiring detail on this. The Community maintained it only became aware in February 2010 and could not reasonably have known earlier, while the Mphela family contended this was improbable given proximity and the Community’s access to documents. The Constitutional Court ultimately found it unnecessary to decide this dispute because the rescission claim failed on the merits for a different reason.

3. Legal Issues

The central legal questions were whether the Haakdoornbult judgment and order, properly construed, impinged upon or prejudiced the Community’s pending restitution claim to Pylkop, and thus whether rescission was competent or necessary to protect the Community’s ability to have its Pylkop claim determined.

A related question was whether the narrower alternative relief sought—namely to “rescinde or expunge” certain pronouncements in the reasons of the earlier judgment and to remit an “issue” concerning Pylkop—was legally competent and justified. This raised the distinction between rescinding an order and seeking to alter or remove reasons, and whether a court may expunge reasons independently of varying the operative order.

The dispute primarily concerned application of law to fact and legal characterisation. It required determining the legal effect of the earlier judgment (its operative scope and any binding consequences) on a separate pending claim, including consideration of whether doctrines such as res judicata or issue estoppel could arise. The Community’s constitutional framing (section 34 access to courts) depended on whether, as a matter of legal effect, the earlier judgment disposed of or constrained the later dispute.

A further issue, consequential rather than central, concerned costs, including whether punitive costs were warranted, whether costs could be awarded against state institutions involved, and whether a de bonis propriis costs order against counsel was appropriate because of unfounded allegations of fraud and misconduct.

4. Court’s Reasoning

The Court began by identifying its power to rescind its own judgments where necessary. It referred to Rule 42(1)(a) of the Uniform Rules of the High Court, made applicable in Constitutional Court proceedings through Rule 29 of the Constitutional Court Rules, which permits rescission of an order or judgment “erroneously sought or erroneously granted in the absence of any party affected thereby”. The Court noted that, in prior decisions, it had left open the full extent of its power as a final court of appeal to vary past orders under the common law, under section 173 (inherent power to regulate process and develop the common law), or under section 172 (just and equitable remedies), but it did not need to resolve those broader questions because the application failed on a more basic ground.

The decisive point in the reasoning was the Court’s conclusion that the Haakdoornbult judgment concerned Haakdoornbult alone. It contained no order in respect of Pylkop and made no restitutionary determination about Pylkop. The Community’s claim to Pylkop remained a matter for the Land Claims Court, unaffected by the Constitutional Court’s earlier order. In oral argument, counsel for the Community ultimately conceded that the earlier judgment did not impinge on the Pylkop claim.

The Court then addressed the alternative attempt to target specific “pronouncements” in the earlier judgment. It expressed doubt whether a court’s reasons may be “expunged” independently of rescinding or varying the order, and in this connection referred to authority emphasising that an appeal lies against an order rather than against the reasons given for it. Even assuming expungement could be entertained, the Court held that no case had been made out for the reduced relief.

In particular, the Court explained that the statement in paragraph 54 of the Haakdoornbult judgment—criticising the Supreme Court of Appeal’s remittal as unnecessarily prolonging finalisation—related to the SCA’s remittal of a question framed as between the parties in Haakdoornbult, namely the Mphela family’s entitlement in the context of compensatory land considerations, and not the Community’s separate restitution claim.

Similarly, the statement in paragraph 56 of the Haakdoornbult judgment—that the family did not “receive” Pylkop as compensatory land but purchased it with the proceeds of Haakdoornbult, and that no claim could be made that it be returned to the state under the Act—was treated by the Court as a statement directed to the overcompensation inquiry within the Haakdoornbult dispute. It did not purport to adjudicate the Community’s asserted rights, nor to bind the parties in the Pylkop litigation.

The Court also analysed the Community’s stated concern that the Mphela family might raise res judicata (or issue estoppel) against the Pylkop claim on the strength of Haakdoornbult. It held that res judicata requires the same litigants seeking the same relief on the same cause of action, which could not be satisfied in relation to the Community’s Pylkop claim. The Court further held that issue estoppel was likewise unavailable on these facts because the earlier proceedings did not determine an issue binding in the later litigation between the relevant parties, given the differences in parties, cause of action, relief, and issues in dispute. Counsel for the Community ultimately conceded these points in oral argument.

Because the Haakdoornbult judgment did not affect the Community’s Pylkop claim, the Court held that rescission (whether of the whole judgment or of selected passages) was not warranted. This conclusion made it unnecessary for the Court to decide the factual dispute about when the Community learned of the Haakdoornbult proceedings and whether earlier knowledge might have precluded rescission.

On costs, the Court declined to grant a punitive costs order against the Community. While the rescission application was described as “misbegotten”, the Court did not find it frivolous, vexatious, or improper in a manner warranting attorney-and-client costs. The Court also took into account that the Mphela family’s own attorney had, in a March 2010 letter, suggested (incorrectly) that rescission was necessary, thereby contributing to “disquiet and confusion” that led to the present proceedings.

However, the Court made an unusual costs order against the Commission/Minister, holding that they should be jointly and severally liable with the Community for the Mphela family’s costs on the ordinary scale. The Court reasoned that the Commission did not assist the Court with an impartial exposition but instead entered the arena in a partisan fashion aligned with the Community, including offering support that tended to bolster misguided imputations of non-disclosure against opposing lawyers.

Finally, the Court dealt separately with counsel’s conduct. It found that counsel for the Community had made serious allegations of dishonest and fraudulent conduct against the Mphela family’s legal representatives, premised on the mistaken view that the Community’s Pylkop claim was relevant to the Haakdoornbult litigation and should have been disclosed there. The Court held these imputations were grossly misconceived and unnecessary to the rescission case, and noted that counsel persisted with them even after the Land Claims Court had condemned similar allegations and made a de bonis propriis costs order. The Court accepted that the Mphela family’s legal team reasonably briefed additional counsel in response to the allegations. In these exceptional circumstances, it held that a de bonis propriis costs order against counsel was warranted for the additional costs occasioned by briefing further counsel.

5. Outcome and Relief

The Constitutional Court dismissed the rescission application. It refused both the primary relief (rescission of the Haakdoornbult judgment and order) and the alternative relief (rescission/expungement of specified “pronouncements” and remittal of an “issue” concerning Pylkop).

The Court ordered that the Baphalane Ba Ramokoka Community and the Minister for Rural Development and Land Reform pay, jointly and severally, the Mphela family’s costs on the ordinary scale, including the costs of two counsel.

In addition, the Court ordered that the costs arising from the engagement of additional counsel on behalf of the Mphela family be paid by counsel for the applicant from his own pocket (de bonis propriis), due to the unwarranted allegations of fraud and misconduct that necessitated the additional briefing.

Cases Cited

Mphela and Others v Haakdoornbult Boerdery CC and Others [2008] ZACC 5; 2008 (4) SA 488 (CC); 2008 (7) BCLR 675 (CC).

Haakdoornbult Boerdery CC and Others v Mphela and Others 2007 (5) SA 596 (SCA); 2008 (7) BCLR 704 (SCA).

Mphela and Others v Engelbrecht and Others [2005] 2 All SA 135 (LCC).

Mphela and Others v Engelbrecht and Others Case No LCC 66/01 (Land Claims Court, 1 June 2005) (unreported).

Minister for Justice and Constitutional Development v Chonco and Others [2010] ZACC 9; 2010 (7) BCLR 629 (CC).

Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC); 1997 (6) BCLR 677 (CC).

Ex Parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local Council [2001] ZACC 2; 2001 (4) SA 1288 (CC); 2001 (8) BCLR 765 (CC).

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A).

Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A).

National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA).

Smith v Porritt and Others 2008 (6) SA 303 (SCA).

South African Liquor Traders Association and Others v Chairperson, Gauteng Liquor Board and Others [2006] ZACC 7; 2009 (1) SA 565 (CC); 2006 (8) BCLR 901 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 34; section 172(1); section 173; and section 25(3).

Restitution of Land Rights Act 22 of 1994, section 2(2); section 11(5)(a); and section 35(2)(f).

Black Land Act 27 of 1913.

Development Trust and Land Act 18 of 1936.

Rules of Court Cited

Uniform Rules of Court, Rule 42(1)(a) (and Rule 42 more generally as set out in the judgment).

Rules of the Constitutional Court, Rule 29.

Held

The Constitutional Court held that the earlier Haakdoornbult judgment and order dealt only with restitution in respect of Haakdoornbult and made no order and no binding restitutionary determination regarding Pylkop. The Community’s pending restitution claim to Pylkop therefore remained unaffected and could not be impeded by the earlier judgment.

It further held that the Community had not established a basis to rescind the earlier order or to expunge the identified passages from the reasons. The Court also held that res judicata and issue estoppel could not arise against the Community’s Pylkop claim on the strength of the Haakdoornbult litigation, given the differences in parties, cause of action, relief, and issues.

The application was dismissed, with ordinary costs awarded against the Community and the Minister jointly and severally, and with an additional de bonis propriis costs order against the Community’s counsel for costs arising from the briefing of additional counsel by the Mphela family due to unwarranted allegations of fraud against the family’s legal representatives.

LEGAL PRINCIPLES

The judgment applied the principle that a superior court may, where empowered, rescind or vary its own orders in limited circumstances, including under Rule 42(1)(a) where an order was erroneously sought or erroneously granted in the absence of a party affected. The Court acknowledged, without deciding, broader potential sources of authority for correction of its orders (including inherent powers under section 173 and remedial powers under section 172), but resolved the matter on the basis that rescission was unnecessary because the prior order did not affect the applicant’s rights in the separate dispute.

The judgment reaffirmed that the binding effect of prior litigation depends on what was actually ordered and on the legal requirements for preclusion doctrines. Res judicata requires identity of parties, cause of action, and relief; and where these are absent, the plea cannot be sustained. The judgment also treated issue estoppel as unavailable where the earlier litigation did not determine an issue in a manner capable of binding the parties in the later proceedings, particularly where the later dispute involves different parties and a different claim.

On the treatment of judicial reasons, the judgment applied the principle that challenges ordinarily lie against the order rather than the reasons, and expressed doubt as to whether “expungement” of reasons is competent distinct from rescission or variation of the operative order.

On costs, the judgment applied the principle that punitive costs require a sufficient basis such as frivolous, vexatious, or improper conduct, and declined punitive costs against the Community in part because the opposing party’s attorney had contributed to confusion. It also applied the principle that, in exceptional circumstances, a de bonis propriis costs order against counsel may be justified where counsel advances serious, baseless allegations impugning the integrity of opponents in a way that causes additional reasonable expense (such as the briefing of additional counsel).

Baphalane ba Ramokoka Community v Mphela Family and Others, In re: Mphela Family and Others v Haakdoornbult Boerdery CC and Others (CCT 75/10) [2011] ZACC 15; 2011 (9) BCLR 891 (CC) (21 April 2011)