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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

[HELD AT RANDBURG]

Heard on 25 October 2010

Judgment delivered on 24 November 2010

CASE NO: LCC 09/2007

In the matter between:

BAPHALANE BA RAMOKOKA COMMUNITY …...............................................................Plaintiff

And

THE MINISTER OF AGRICULTURE AND LAND AFFAIRS …................................1^st Defendant

[NOW MINISTER OF RURAL DEVELOPMENT AND

LAND AFFAIRS]

FRANK VERSTER FAMILY TRUST & 73 OTHERS …...................................2^nd to 74^th Defendant

[REPRESENTED BY THE ATLANTA NORTHAM LAND

CLAIMS ACTION COMMITTEE]

OTHER PARTICIPATING PARTIES …...................................................75^th and further Defendants

THE MPHELA FAMILY …............................................................................................76^th Defendants

J U D G M E N T

GILDENHUYS J:

INTRODUCTION

[1] The plaintiff instituted a claim for the restitution of rights in land under the Restitution of Land Rights Act No 22 of 1994. It is a large claim involving many farms. One of the farms is Pylkop No 26 JQ, which is owned by the Mphela family (the 76^th defendant in the matter before us). The restitution claim was referred to this Court by the Regional Land Claims Commissioner in terms of Section 14 (1) of the Restitution of Land Rights Act.

[2] The plaintiff is the Baphalane Ba Ramokoka Community. The Minister of Rural Development and Land Affairs is the second defendant. The 2^nd to 74^th defendants are participating land owners, represented by the Atlanta Northern Land Claims Action Committee. The case heading indicates that “other participating parties” constitute the 75^th and further defendants. There are no other participating parties and therefore no 75^th defendant. The Mphela Family is the 76^th defendant.¹

[3] The matter was first enrolled for hearing during March 2010 and postponed at the cost of the Land Claims Commission. The Mphela family, who was not previously a party in the restitution proceedings, was then joined as a participating party. On 2 March 2010 Meer J, who was the presiding judge at the time, issued a number of directives for the delivery of further papers. The case was then set down for hearing over the period 25 October 2010 to 5 November 2010.

BACKGROUND HISTORY

[4] It is necessary, at this stage, to cut in with some background history. The Mphela family was, since 1921, the owner of the remaining extent of the farm Haakdoornbult No 542 KQ (“Haakdoornbult”). The property was identified by the previous government as a so-called “black spot.” As a result, the Mphela family was (during 1951) coerced into selling Haakdoornbult. They used the proceeds of sale to buy Pylkop, where they later resettled.

[5] After the commencement of the new political dispensation, the Mphela Family claimed restitution of Haakdoornbult in terms of the Restitution of Land Rights Act. Following upon an award in the Land Claims Court and subsequent appeals to the Supreme Court of Appeal and to the Constitutional Court, the greater portion of Haakdoornbult was restored to the Mphela family.² None of the restitution orders made in these three Courts contain anything on Pylkop.

THE RESPONSE BY THE 76^TH DEFENDANT AND PLAINTIFF’S REPLY THERETO

[6] I revert to the claim before us. As I have said, the plaintiff community is claiming restitution of rights in land relating to a large number of farms (including Pylkop). The Regional Land Claims Commissioner for the North West and Gauteng Provinces referred the claim to this Court for adjudication in terms of section 14 of the Restitution of Land Rights Act.

[7] The Mphela Family, in its response (dated 8 April 2010) to the referral report submitted by the Regional Land Claims Commissioner, took the position (for reasons which I do not need to set forth) that the plaintiff is not entitled to the restoration of Pylkop. The plaintiff delivered a reply to this response on 10 May 2010.

[8] The 76^th defendant stated in paragraph 7 of its response to the Regional Land Claims Commissioner’s referral report that, in declining to order restoration of the entire Haakdoornbult, the Supreme Court of Appeal took into account that the 76^th defendant “would retain ownership of Pylkop”.³ The plaintiff, in its reply to paragraph 7 of the response, alleged that when the Haakdoornbult matter was considered by the Land Claims Court, the Supreme Court of Appeal and the Constitutional Court, these Courts were not apprised of the fact that Pylkop was the object of a pending restitution claim by the Baphalane Ba Ramokoka Community (the plaintiff in the case before us). The landowners in the Haakdoornbult matter were represented by the same counsel and attorney as the 2^nd – 74^th defendants in the present matter. The plaintiff contends that because the courts in the Haakdoornbult matter were unaware of the restitution claim against Pylkop, it did not have the full facts before them when they made the restitution orders.

[9] The plaintiff avers in par 4.1 of its reply to the 76^th respondent’s response that the landowners’ counsel and the attorney knew there was a “competing claim” in respect of Pylkop when the Haakdoorbult matter was heard. The plaintiff does not state why its claim against Pylkop was considered to be a “competing claim”, nor how the Haakdoornbult judgments and orders can have any effect on that claim. In par 4.2 of its reply, the plaintiff alleges that the legal representatives

“elected not to bring this very problem to the attention of the court when there was indeed an ethical duty on the part of counsel and the attorney who are officers of the court, to do so.”

Similar assertions are contained elsewhere in the reply, which I need to quote.

[10] It is stated in paragraph 23 of the plaintiff’s reply:

“……..what can be said is the fact that the finding of the Supreme Court of Appeals as well as those of the Constitutional Court become merely academic, since such findings cannot be supported in law on account of the violation of the Plaintiff’s constitutional guaranteed rights in terms of Section 34 (supra) which violation was willfully perpetrated by the Second to the Seventy Fourth Defendants lawyers, and which violation had the nappy fact (sic) of misleading the Supreme Court of Appeals (sic) as well of the Constitutional Court of Appeals into rendering findings to the exclusion of interested parties who were supposed to have been given an opportunity in keeping the audi alteram rule which is subject to section 34 of the Constitution to put their side of the story before those two courts, but were unfortunately not accorded such opportunity, thus in the ultimate end, resulting in a scenario wherein the denial of such an opportunity to the Plaintiff resulted in the subversion of the administration of justice.”

We were told from the bar that the plaintiff applied to the Constitutional Court for the rescission of the Haakdoornbult restitution order.

[11] In par 43.2 of the reply it is stated that “the restoration of the equilibrium on account of past human rights violations” which excluded the plaintiffs from the “adjudication process of Pylkop” in the Haakdoornbult matter, ensured “that the plaintiffs’ section 34 constitutionally guaranteed right was basically trampled upon” by the Mphela Family and the legal representatives of the

2^nd – 74^th defendants.

[12] In par 116 of the reply, the plaintiff advised the Mphela Family to abandon the “early judgments” in the Haakdoornbult matter because it

“….would indeed be the noble and honourable thing to do, since it would provide Mr. Grobbelaar and his Counsel, Mr. Havenga SC a good opportunity to also explain whether the breach of the ethical duties to the court was either wilful or coincidental.”

[13] In par 120.3 of the reply the plaintiffs aver that in the Haakdoornbult proceedings,

“….Mr. Grobbelaar and his counsel had an ethical duty to appraise (sic) the Land Claims Court, the Supreme Court of Appeals and the Constitutional Court of the fact that interested parties had been excluded from the proceedings, since he knew as far back as 2007 of the exclusion of the Plaintiff from litigation in the matters that were heard from 2005 up to 2008, and recklessly refrained from appraising (sic) the court accordingly.”

Since neither the landowners nor the State laid claim to Pylkop in the Haakdoornbult matter, I have difficulty understanding how the present plaintiff could have been an interested party in the Haakdoornbult matter.⁴

[14] The plaintiff’s attorney withdrew the reply by letter on 27 May 2010, after receipt of a complaint from Mr. Havenga (counsel for the 2^nd to 74^th defendants) that the reply contains defamatory matter. The last paragraph of the letter reads as follows:

“We hereby unconditionally on behalf of this office and our clients, withdraw with immediate effect any submissions that is deemed to be defamatory and or of sour language and further apologise unconditionally to all the parties and the Honourable Court.”

[15] The plaintiff delivered another reply on 1 June 2010, worded similarly to the previous reply and signed by Mr. Makhambeni (as counsel for the plaintiff) and by Mr. Matloga (as attorney for the plaintiff). The further reply was accompanied by a letter from Matloga Attorneys, containing the following statements:

“We have since consulted with our clients herein the Baphalane Ba Ramokoka Community and our instructions are that:

1. due to the truthfulness of the remarks contained in their reply to Mphela Family’s Response to referral Report, they (our clients) are neither sorry nor apologetic;

2. our unconditional professional courtesy apology contained in our letter dated 19/05/2010 therefore was deemed by our clients to be unnecessary;

3. clients instructed that we replace their Reply with the one signed by Advocate Makhambeni as the author and our Mr. Matloga for filing purposes;

4. our clients stand by every word, phrase, sentence, remark and legal arguments contained therein and that nothing must be retracted from their document as they stand and fall by the contents thereof.”

THE PROCEEDINGS ON 25 AND 26 OCTOBER 2010

[16] Prior to the hearing date of 25 October 2010, four interlocutory applications were lodged with this Court. The first was an application by the 76^th defendant to strike out the plaintiff’s reply. The second was an application by the 2^nd-76^th defendants to strike out a number of offending paragraphs from the plaintiff’s reply. The third was an application by the plaintiff for condonation of the late delivery of its reply. The fourth was an application also by the plaintiff, for an order that the main hearing and the two applications to strike out, be postponed sine die.

[17] On 25 October 2010, we refused to postpone the two applications to strike out, and undertook to give reasons afterwards. The reasons are contained later in this judgment.⁵ We thereupon heard the four interlocutory applications. The application for postponement of the main hearing was stood down. This judgment relates to the four interlocutory applications.

APPLICATION BY 76^TH DEFENDANT TO STRIKE OUT PLAINTIFF’S REPLY

[18] The first interlocutory application was an application by the 76^th defendant, instituted by notice of motion dated 8 July 2010, in which it claimed an order –

“1. Declaring that the filing of the “Plaintiff’s Reply to the 76^th Defendant’s Response” on 1 June 2010 was an irregular step in terms of Rule 32 (3) of the Land Claims Court Rules;

2. Striking out the “Plaintiff’s Reply to the 76^th Defendant’s Response”;

2. Costs of the application;”

[19] The 76^th Defendant contends that the reply is an irregular step on the following three grounds:

1. it was filed outside the prescribed time periods;

2. it contains matter which is irrelevant, scandalous and vexatious; and

3. it does not constitute a pleading as envisaged in the Court’s directives of 2 March 2010.

[20] In his argument before us Mr. Dodson, who appeared for the 76^th defendant, informed us that the 76^th defendant relies on the first ground only, not on the other two. The plaintiffs applied by notice of motion dated 19 July 2010 for condonation of the late filing of their reply. I will consider the application by the 76^th defendant for an order to strike out the reply together with the application for condonation, later in this judgment.⁶

APPLICATION BY THE 2^ND – 76^TH DEFENDANTS TO STRIKE OUT OFFENDING PARAGRAPHS FROM THE PLAINTIFF’S REPLY

[21] The second interlocutory application was brought by the 2^nd - 74^th defendants by way of a notice of motion dated 22^nd June 2010, in which they applied for an order in the following terms:

“1. That paragraphs 4.1, 4.2, 23, 43.2, 116 and 120.3 in the plaintiff’s reply to the 76^th defendant’s response to the referral report be struck out;

2. That the plaintiff is ordered to replace the plaintiff’s reply with a document not containing the irrelevant, scandalous and vexatious remarks contained in the paragraphs that were struck out;

3. That the plaintiff , jointly and severally with the plaintiff’s attorney, Mr Matloga and the plaintiff’s counsel, Adv Peter Makambeni, de bonis propriis, are ordered to pay the costs of this application on the scale as between attorney and own client.

[22] The application is based on the contention that the paragraphs sought to be struck out contain averments which are scandalous, vexations and irrelevant. I have set forth the contents of the offending paragraphs earlier in this judgment.

[23] Rule 28(2) of the Land Claims Court Rules provide that where the rules are silent on any matter, the Uniform Rules of the High Courts shall apply. The Land Claims Court Rules are silent on the striking out of irrelevant or scandalous matter. Rule 23(2) of the Uniform Rules is therefore applicable. It reads as follows:

“Where any pleading contains averments which are scandalous, vexatious, or irrelevant, the opposite party may……apply for the striking out of the matter aforesaid,…..but the court shall not grant the same unless it is satisfied that the applicant will be prejudiced in the conduct of his claim or defence if it be not granted.”

[24] Scandalous matter have been described in Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa,⁷ as follows:

“Allegations in a pleading are scandalous if they state matters which are indecent or offensive or are made for the mere purpose of abusing or prejudicing the opposite party. Moreover any ‘unnecessary’ or ‘immaterial’ allegations will be struck out as being scandalous if they contain any imputation on the opposite party or make any charge of misconduct or bad faith against him or anyone else. Again, if degrading charges are made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous.”

[25] The Mphela family pleaded⁸ that in the course of the Haakdoringbult litigation, it was allowed by the State to retain ownership of Pylkop. The plaintiff replied that when the Haakdoornbult claim was dealt with by the Land Claims Court, the Supreme Court of Appeal and the Constitutional Court, those courts did not know that the plaintiff had instituted a land restitution claim against Pylkop, that this fact was relevant to the Haakdoornbult matter, and that the Haakdoornbult restitution award can therefore not stand. We were informed that the plaintiff applied to the Constitutional Court for a rescission of the Haakdoornbult restitution award. The application is still pending in that Court.⁹

[26] The plaintiff seems to be under the impression that the courts in the Haakdoornbult matter “awarded” Pylkop to the Mphela family, and that the “award” can be set aside under section 11(5) of the Restitution of Land Rights Act. As I read the judgments, there was no award of Pylkop to any party. The Mphela family used the proceeds of the 1951 sale of Haakdoornbult to purchase Pylkop. It is not compensatory land awarded to them when they were forced to sell Haakdoornbult during 1951.

[27] The Constitutional Court held as follows on the issue of whether Pylkop was received by the Mphela Family as compensatory land:

“As to an order in respect of compensatory land, the State could in any event not claim it in respect of Pylkop. As was said by the Supreme Court of Appeal in another context, ‘Pylkop is … irrelevant because what a dispossessed person or community did with the compensation received is of little consequence in determining whether the compensation received “in respect of” the property was adequate or not’. The Mphela family did not ‘receive’ Pylkop as compensatory land. They purchased it with purchase price received for Haakdoornbult. Pylkop, therefore, belong to the family and no ‘claim’ can be made that it, or part of it, be returned to the State under the Act, nor could any court make an order in respect of it under s35 (2) (f) of the Act.” ¹⁰

[28] The defence raised by the plaintiff in its reply seems to be that because the courts in the Haakdoornbult matter were not informed of the “competing claim” of the plaintiff in respect of Pylkop, and the plaintiff was therefore not given an opportunity to participate in the Haakdoornbult proceedings, the restitution order in the Haakdoornbult matter cannot stand and must either be ignored or be rescinded. We do not know what exactly is being claimed in the rescission application pending before the Constitutional Court.

[29] The validity of the defence raised by the plaintiff is not at issue in the application to strike out. I will, however, consider the manner in which it was pleaded, particularly the gratuitous inclusion of scurrilous accusations. In essence, the plaintiff relies on the absence of knowledge of the plaintiff’s restitution claim against Pylkop on the part of the courts which decided the Haakdoornbult matters. In order to put forward that defence, it was not necessary for the plaintiff to state in its reply that the absence of knowledge resulted from a breach of duty by the legal representatives to inform the courts of the claim. In any event, on the information before me, I doubt whether they had any such duty because neither the landowners nor the State sought any order against Pylkop, and no order involving Pylkop was made.¹¹ The plaintiff’s restitution claim in respect of Pylkop remains untrammeled by any order made in the Haakdoornbult case. I fail to understand how the rescission of the Haakdoornbult restitution award (if granted) can impact on the plaintiff’s restitution claim in respect of Pylkop.

[30] It is astounding that the plaintiff’s legal representatives (who are officers of the Court) in circumstances such as these, saw fit to abuse senior colleagues by accusing them of

1. willfully breaching their ethical duties¹²,

2. trampling on the constitutional rights of the plaintiff,¹³

3. misleading the Supreme Court of Appeal and the Constitutional Court;¹⁴ and

4. subverting the administration of justice.¹⁵

These are some of the worst insults that can be hurled at legal practitioners in relation to their official duties. It impacts not only on the dignity of the individuals concerned but also on the dignity of the administration of justice.¹⁶

[31] It must be clear from what I have set forth above that the plaintiff did not need to include the abusive remarks when formulating its reply. In my view, the remarks are scandalous, vexatious and irrelevant within the meaning of Rule 23(2) of the Uniform Rules.

[32] The present action before the Court is of an enormous scope. Much time and costs have been expended by parties and their legal representatives in preparation for the forthcoming trial. Since the scandalous and vexatious passages implicate the 2^nd to 74^th defendants’ counsel and attorney, by name, the defendants will be prejudiced in the conduct of their defence if the application for striking out is not granted. It may even have the effect of excluding these representatives from participating in the trial, which would severely prejudice the defendants. For the very same reason, they already had to employ an additional senior advocate to argue this striking out application.

[33] In my view, the offending paragraphs in the reply¹⁷ cannot be allowed to stand and must be struck out.

THE COSTS OF THE 2^ND – 74^TH DEFENDANTS’ APPLICATION TO STRIKE OUT

[34] I turn to the issue of costs. The 2^nd - 74^th defendants ask for a cost order as follows:

“That the plaintiff, jointly and severally with the plaintiff’s attorney, Mr Matloga and the plaintiff’s counsel, adv Peter Makambeni, de bonis propriis, are ordered to pay the costs of this application on the scale as between attorney and own client.”

[35] The principles applicable to an award of costs de bonis propriis were set forth by Innes CJ in Vermaak’s Executor v Vermaak’s Heirs¹⁸, as follows:

“The whole question was very carefully considered by this Court in Potgieter’s case (1908 TS 982), and a general rule was formulated to the effect that in order to justify a personal order for costs against a litigant occupying a fiduciary capacity, his conduct in connection with the litigation in question must have been mala fides negligent or unreasonable.”

In Khan v Mzovuyo Investments (Pty) Ltd,¹⁹ Hancke J relied on this dictum when ordering an attorney to pay wasted costs in a case de bonis propiis.

[36] O’ Reagan J held as follows in a recent Constitutional Court judgment in the case of SA Liquor Trader’s Association v Gauteng Liquor Board²⁰:

“An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy.”

In an earlier case, Swartbooi and Others v Brink and Others,²¹ the Constitutional Court held that the common law rules would:

“…generally speaking, render an order for costs de bonis propriis by a person acting in a representative capacity appropriate if their actions are motivated by malice or amount to improper conduct.”

[37] In Waar v Louw²², MT Steyn J held that an order for costs de bonis propriis against a legal practitioner would be justified in serious cases, such as “oneerlikheid, moedswilligheid of nalatigheid in ‘n ernstige graad.”

In Clemson v Clemson,²³ a cost order, de bonis propriis was made against an attorney who brought an interlocutory application with the sole purpose of harassing the other side.

[38] In Webb and Others v Botha,²⁴ the Court (per Kriek J) visited an attorney with an order for payment of costs de bonis propriis who:

“(a) obstructed the interests of justice by permitting the appeal to run its full course and by his exploitation of the Rules in raising unfounded technical objections in relation to the copies of the record and to the security put up by the applicants;

(b) occasioned unnecessary costs to be incurred by all the parties to the appeal for no reason other than the gratification of his apparent obsession with frivolous technical points;

(c) delayed the final determination of the action to such an extent that prejudice may well result to the parties to it.”

[39] In the case before us, there is no justification whatsoever for including the offensive material in the plaintiff’s reply. Mr. Makhambeni and Mr. Matloga should have known, if they did not actually know, that it is improper to do so. Its real purpose might well have been to harass the 2^nd-74^th defendants’ legal representatives. Their action is exacerbated by the letter stating that the plaintiff “stand by every word, phrase, remark or legal argument” contained in the reply.²⁵

[40] In this respect, the following remarks by Goldstone J in the case of Protea Assurance Co Ltd v Januszkievicz²⁶ are apposite:

“In my opinion these attacks made upon Jordaan, on the evidence placed before the Court in Mr Eiser’s affidavit, are scurrilous. It is wholly unjustified by anything stated or done by Mr Jordaan. If attorneys, as officers of the Court, behave in such a fashion towards each other such conduct can only reflect upon the dignity of the whole legal profession. Furthermore, such conduct brings not only the profession into contempt but indeed the whole system of justice and the Courts. In this regard I would refer to the judgment of Caney J in S v Tromp 1966 (1) SA 646 (N). At 652 the learned Judge said this:

‘Melius de Villiers, in the pages following that to which I have already referred, goes on to show that it is not only the judicial officer who may be the object of an attack founding a charge for contempt of court but others also: officials and legal practitioners, carrying out their duties in the exercise of the functions of the courts, and litigants also in the courts, may be the object of an attack which can be the basis of charge of contempt of court. Prosecutors, advocates and attorneys, the messenger of the court and others, attacked in relation to the performance of their duties in carrying out the functions of the court, are included. The gravamen of the matter is not the protection or upholding of the dignity of the individual but of the office he holds, so that judicial officers, officials associated with the functions of the courts and legal practioners shall not be deterred from doing their duty, nor the courts be influenced extraneously in coming to their decisions; and so that the public shall not lose confidence in the courts. The law’s concern is for the interest of the public.’

In Attorney-General v Crockett 1911 TPD 893 Bristowe J said inter alia at 926:

‘The jurisdiction cannot be used to gratify the spleen or vindicate the wounded feelings of a particular individual.’

In my view it is at least highly arguable that Mr Eiser, apart from having acted unfairly and in an excessive fashion against both the plaintiff and his attorney, has committed contempt of Court. He is fortunate in my view that Mr Selvan, for the reason I have mentioned, withdrew the application for costs de bonis propriis. In my view, however, having regard to the seriousness of the attack which Mr Eiser made upon the plaintiff, who is a professional man, and against Mr Jordaan, an officer of this Court, it is proper that, as a mark of the Court’s extreme displeasure at this conduct, an award of an attorney and client costs should be made.”

The above dictum was adopted by this Court in Singh v North Central and South Central Local Councils.²⁷

[41] I conclude that, as a mark of the Court’s utmost displeasure, a de bonis propriis costs order needs to be made against the plaintiff’s counsel and attorney. The plaintiff itself adopted the offensive assertions. There will accordingly be an order against the counsel Mr. Makhumbeni, the attorney Mr. Matloga and the plaintiff to jointly and severally pay the 2^nd-74^th defendants’ cost in the application to strike out. Because of the seriousness of the accusations, the costs will be awarded on an attorney and client scale, and will include the costs of two counsel.²⁸ I intend, by this order, to send out a strong message that the Court will not allow its process to be abused by legal practitioners hurling gratuitous insults at their colleagues.

PLAINTIFF’S CONDONATION APPLICATION FOR THE LATE FILING OF ITS REPLY

[42] The plaintiff applied by notice of motion dated 19 July 2010 that its reply to the 76^th respondent’s response “be condoned”.

[43] The first version of the plaintiff’s reply was filed on 10 May 2010, which is 11 days late. No explanation has been provided in any of the interlocutory applications for this delay.

[44] The second version of the reply was filed on 1 June 2010, more than a month after the due date of 29 April 2010. An exiguous explanation for this delay was provided in the plaintiffs’ answering affidavit in the 76^th defendant’s irregular step application, to the effect that the first version of the reply had been withdrawn due to a dispute which had arisen between the relevant parties’ legal representatives. This accounts neither for the delay until 10 May 2010 nor for the delay until 1 June 2010. The plaintiff’s application for condonation was served on 21 July, which is almost three months after the reply was due on 29 April 2010.

[45] The blatant disregard by the plaintiff’s attorney of the prescribed time periods and the inadequate explanation put up could well, by itself, be sufficient reason not to grant condonation. However, I am of the view that a reply (bereft of objectionable matter) by the plaintiff to the 76^th defendants’s response will be of assistance to the Court. The 76^th defendant did not demonstrate that it will suffer any real prejudice if I permit the plaintiff to replace its existing reply by an amended version not containing offensive matter. Were it not for these considerations, we might well have refused condonation.

[46] Because I will make an order allowing a reply (not containing objectionable matter) to be filed pursuant to the 2^nd-74^th defendants’ striking-out application, it is not necessary to make another order to that effect in this condonation application or in the 76^th defendant’s striking-out application. However, the issue of costs remains. I proceed to consider it.

[47] The court will be granting the plaintiff an indulgence by allowing the late filing of a rectified reply. The general rule applicable to the award of costs in such cases is set forth in Erasmus, Superior Court Practice at E12-6A²⁹.

“Where a successful application is made for the grant of an indulgence the general rule is that costs do not follow the event. The general rule in such cases is that ‘the applicant for the indulgence should pay all such costs as can reasonably be said to be wasted because of the application, these costs to include the costs of such opposition as is in the circumstances reasonable, and not vexatious or frivolous.’ The justification for an order that an applicant is to pay the respondent’s costs of opposition is that the respondent ought not to be put in a position where he opposes the granting of an indulgence at his peril, in the sense that, if the amendment is granted, he cannot recover his costs of opposition, or may even have to pay such costs as are occasioned by his opposition, despite the fact that such opposition is reasonable in the circumstances.” [Footnotes omitted]

[48] In my view, the plaintiff must be ordered to pay the 76^th defendant’s costs in the condonation application. The 76^th defendant asks for costs on the attorney and client scale, including the costs of two counsel. I do not consider the plaintiff’s disregard of the prescribed time periods and its failure to remove the cause for the complaint when called upon to do so, to be sufficient to warrant an attorney and client cost order. It must be remembered that in its application for an order to strike out the reply, the 76^th defendant relied only on the fact that the documents concerned were filed out of time. I will, however, allow the costs of two counsel. In my view, the magnitude and intricacies of the case warrant the employment of two counsel.

THE PLAINTIFF’S POSTPONEMENT APPLICATION

[49] By notice of motion dated 15 October 2010, the plaintiff applied for an order –

“That the trial, as well as the two applications to strike out, which have been brought by the Mphela Family, as well as, the Second to Seventy Fourth Defendants, be postponed sine die.”

[50] The application for postponement of the two striking-out applications was motivated in the plaintiff’s founding affidavit as follows:

“It is respectfully submitted that in light of the fact that there is currently an application for rescission of judgment, which application for rescission of judgment was brought in light of the fact that the Mphela family have a parcel of the claim currently before this Honourable Court, and the Constitutional Court has not yet adjudicated in respect of that particular application for rescission of judgment under case number CCT75/2010, which case will also shed light on the allegations that have been made, and which allegations have been complained of by the legal team of the Second to Seventy Fourth Defendants, and incidentally also by the Mphela Family, it is our respectful submission that where (sic) this Court to proceed and adjudicate over this matter based on such piecemeal information, insofar as the two striking out applications are concerned, this Honourable Court would be reaching its finding based on nothing else but piecemeal information.”³⁰

[51] I fail to see how the rescission application pending in the Constitutional Court can possibly impact on the question whether the objectionable material can be allowed to stay. At issue is not the truth of the impugned allegations, but the propriety of including them in plaintiff’s reply. For this reason, the Court refused to postpone the two interlocutory applications for striking-out orders, and proceeded to hear the application.

[52] The 2^nd - 74^th defendants as well as the 76^th defendant opposed the application to postpone the striking out applications. The applications were refused and the opposing defendants are entitled to their costs, including the costs consequent upon the employment of two counsel, which in my view was fully justified in the circumstances.

[53] Insofar as the hearing of the merits is concerned, the plaintiff motivated its application for a postponement as follows in its founding affidavit:

Insofar as the trial itself is concerned, it is our respectful submission that for as long as the application for rescission of judgment has not been finalized by the Constitutional Court of South Africa, it would not only be imprudent, but it would also be improper for this Honourable Court to climb into the merits of the matter which happens to be incidental to another matter which has correctly been handled by a court of higher standing, when it is in fact taken as a given that a court of law of stature takes its queue (sic) from a court of higher standing, and up until a court of higher standing has spoken and pronounced fully in respect of a particular matter which may be pending before a lower court, it is a lower court that must wait for the higher court to reach a finding and ensure that that finding can be complied with should the court of higher standing require any further compliance from the lower court.³¹

The plaintiff also put forward some other reasons for requiring a postponement of the main trial, but did not press them at the hearing before us.

[54] As it happened, the main trial had to be postponed for an entirely different reason, viz that the Regional Land Claims Commissioner could not satisfy the Court that it has served the referral papers on all interested parties. I therefore need not decide whether the grounds for a postponement submitted by the plaintiff are valid or not. I directed, when postponing the main application during a pre-trial conference on 26 October 2010, that the wasted costs caused by the postponement be argued before this Court on Wednesday 1 December 2010.

ORDER

[55] For the reasons set forth above, the following order is hereby made:

1. Paragraphs 4.1, 4.2, 23, 43.2, 116 and 120.3 in the plaintiff’s reply (dated 27 May 2010) to the 76^th defendant’s response to the referral report, is hereby struck out.

2. The plaintiff may, by not later than 10 December 2010, replace its existing reply with an amended reply which does not contain irrelevant, scandalous or vexatious matter. Unless the reply is so replaced, the entire reply dated 27 May 2010 is hereby struck out with effect from 11 December 2010.

3. The plaintiff, the plaintiff’s attorney Mr. Molatelo Matloga, and the plaintiff’s counsel Mr. Peter Makhambeni, the latter two de bonis propriis, must jointly and severally, the one paying the others to be absolved, pay the costs of the 2^nd to 74^th defendants in respect of their application to strike out, including the costs consequent upon the employment of two counsel, to be taxed on the scale as between attorney and client.

4. The plaintiff must pay the costs of the 2^nd – 74^th defendants in respect of the plaintiff’s application for postponement of the 2^nd-74^th defendants’ application to strike out, taxed as between party and party.

5. The plaintiff must pay the costs of the 76^th defendant (including the costs consequent upon the employment of two counsel) in respect of

(a) the 76^th defendant’s application to strike out;

(b) the plaintiff’s application for condonation; and

(c) the plaintiff’s application for postponement of the 76^th defendant’s application to strike out,

taxed as between party and party,

6. Argument on the cost of the application for postponement of the main trial and the wasted costs resulting from the postponement thereof, will be heard on Wednesday 1 December 2010 at 11h00.

_____________________

A GILDENHUYS

JUDGE OF THE LAND CLAIMS COURT

I agree.

______________________

M J MPSHE

ACTING JUDGE OF THE LAND CLAIMS COURT

Appearances:

For the plaintiff

Mr. P W Makhambeni

instructed by Matloga Attorneys

For the 1^st defendant and the Regional Land Claims Commissioner

Mr. G Shakoane

instructed by the State Attorney, Johannesburg

For the 2^nd to 74^th defendants

Mr. F H Terblanche SC (only in the strike-out application)

with him

Mr. H S Havenga SC

instructed by Grütter and Grobbelaar Attorneys

For the 76^th defendant

Mr. A Dodson

with him

Ms. A Bodasing

instructed by Legal Resources Centre

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