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REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

 

CASE NO: LCC41/2019 &

LCC41/2019C

REPORTABLE

OF INTEREST TO OTHER JUDGES

NOT REVISED

19.07.23

 

In the matter between:

 

THULANI SOKHELA	First Applicant
SYLVIA NOSIPHO SOKHELA	Second Applicant
and
SENZELE JOHNSON MHLUNGU	First Respondent
ELIZABETH MARIA MHLUNGU	Second Respondent

This judgment was handed down electronically by transmission to the parties’ representatives by email. The date and time for hand down is deemed to be at 12h00 noon on the 19^th July 2023

 

JUDGEMENT

NCUBE J

 

Introduction

[1]  This is opposed application for rescission of a judgment by default granted by this court on 29 November 2021 against applicants (“the Sokhela family”). Coupled with the rescission application is an application for the condonation of the late filing of the rescission application. There is a second and separate application brought by the two respondents (“the Mhlungu family”) herein where they seek a variation of the same order of 29 November 2021. That application is also opposed by the Sokhela family. I have decided to deal with both applications in one judgment for purposes of convenience.

 

Background Facts

[2]  The Sokhela family is resident on the farm registered and described in the Deeds Office as the Remaining Extent of Portion 9 of the Farm Virginia No 1823 (“the Virginia Farm”), held under Title Deed No T54726/2004. Adjacent to the Virginia farm, is another farm which is registered and described in the Deeds Office as Portion 9 of Lot 91 Farm No 1819 Boston-Kwethu (“the Kwethu Farm”), held under Title Deed No T24747/2001. Both these farms are owned by the Mhlungu family. When the Mhlungu family took ownership of the Virginia farm in 2004, from the previous owner Terrazone Properties CC, the Sokhela family was already on the farm. Terrazone had also inherited the Sokhela family from the erstwhile owner Mr Padmore.

 

[3]  On 09 April 2019 the Mhlungu family issued an eviction application against the Sokhela family out of this court. All the necessary documents indicated the farm from which the Sokhela family had to be evicted from as being the Boston-Kwethu farm, which is a wrong farm. For reasons that will be clear later in this judgment, the Sokhela family did not defend the eviction application. Consequently, and on 29 November 2021, the order for the eviction of the Sokhela family from the Boston- Kwethu farm, was granted in the absence of the Sokhela family. The present rescission application concerns that eviction order.

 

Condonation

[4]  Section 35 (11)(a) of the Restitution of Land Rights Act[1] (“the Act”) makes provision for the rescission of any order or judgment granted by the court in the absence of the person against whom that order or judgement was granted. The period within which the application should be brought and what must be established are stipulated in Rule 64 (2) of the Rules of the Land Claims Court. The application should be brought within ten (10) days from the date upon which the applicant became aware of the order and on good cause shown. In effect, in their application for condonation, the Sokhela family seeks condonation for non-compliance with the ten (10) days stipulated in the Rules.

 

[5]  In an application for condonation, the court must look at the degree of lateness, the explanation given for the lateness, the importance of the case, prospects of success in the main application, the respondent’s interest in the finality of the judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.[2] The rescission application was brought four and half months late. However, the court has a discretion to condone the late filing of the said application if good or sufficient cause is shown. In Melane v Santam Insurance Co Ltd[3] Homes JA expressed himself in the following terms:-

 

“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piece meal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked .............”

 

[6]  The explanation for the default given by the Sokhela family is that when they received the papers, they handed them over to the Non- Governmental Organisation known as Association For Rural Advancement commonly referred to as AFRA. It was not the first time they dealt with AFRA. They thought AFRA was going to take care of the matter and get a legal representative for them. They usually gave legal documents to AFRA and AFRA used to sort out the issues on their behalf. The Sokhela family did not only give the papers to AFRA but also to the Department of Rural Development and Land Reform, hoping that an attorney was going to be appointed on their behalf, but there were no steps taken by the Department till the default judgment was granted. The explanation tendered by the Sokhela family, coupled with the prospect of success on the rescission application, is quite reasonable.

 

Application for Rescission

[7]  Under the common law, the applicant, to succeed in his application for a rescission of default judgment must show good cause. Showing “good cause” effectively means that the applicant must give a reasonable explanation of his default by showing that his application is made bona fide, by showing that he has a bona fide defence to the plaintiff’s claim which prima facie, has some prospects of success. The court has a discretion in assessing good cause in order to ensure that justice is done and such discretion will have to be exercise after all the relevant factors have been given a proper consideration.

 

[8]  In HDS Construction (Pty) Ltd v Wait[4] Smalberg J put it thus:-

“When dealing with the words such as ‘good cause’ and ‘sufficient cause’ in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns’ Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The court’s discretion must be exercised after a proper consideration of all the relevant circumstance.”

 

In the same vein, Jones AJA, in Colyn v Tiger Foods Industries t/a Meadow Feed Mills[5] said:

“... the Courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona file; and (c) by showing that he has a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success…”

 

Prospects of Success

[9]  The Sokhela family did not get the opportunity to defend the eviction application instituted by the Mhlungu family. However, it is clear that had they defended the application for their eviction, they were likely to succeed. The most important defect in the eviction application is the wrong description of the farm from which the eviction was to take place. The Mhlungu family sought and was granted on order of eviction from the farm described as “Boston-Kwethu Farm”. The Sokhela family does not reside at Boston-Kwethu farm. They reside on the farm which is registered and described in the Deeds office as

“the Remaining Extent of Portion 9 of the Farm Virginia No 1823.”

Boston-Kwethu Farm, is different from Virginia Farm. Even at the Deeds office these two farms are given different numbers and different Title Deeds.

 

[10]  If the eviction order of 29 November 2021 is not rescinded, the execution thereof will be problematic which can lead to such order being brutum fulmen. Even the Notice of Termination of the right of residence and all other documents addressed to the Sokhela family reflect “Boston-Kwethu Farm” which is wrong. In my view, the whole eviction process must start afresh citing the correct farm.

 

Application for Variation

[11]  The Mhlungu family, seeks the variation of the eviction order granted by this court on 29 November 2021. In terms of that order, the Sokhela family was evicted from the farm described as “Boston-Kwethu Farm” and they had to vacate the said farm within thirty (30) days from the date of the order. The variation application is premised on the submission that there is an ambiguity in the court order with regard to the description of the farm from which the Sokhela family was to be evicted.

 

[12]  The order in question reads:

 

“After having read the papers filed of record and after having heard argument from counsel an order in the following terms is hereby made:

1. The First, Second and Third Defendants respectively, and all other persons occupying the farm Boston-Kwethu through the First, Second and Third Defendants, including any other family member of the Sokhela family, if any, are evicted from the Boston-Kwethu Farm, Pietermaritzburg, KwaZulu-Natal Province within 30 days of the date of the order;

2. Should the occupiers fail to vacate the farm the Sheriff and if need be assisted by the South African Police Service, are authorised to evict them from the farm;

3. Costs of suit.” 

 

In essence the Mhlungu family seeks the variation of paragraph 1 of the court order, to the extent that “Boston-Kwethu Farm” is deleted and replaced with “the Remaining Extent of Portion 9 of the Farm, Virginia No 1823 held under Title Deed number T54726/2004,” which is the correct farm currently occupied by the Sokhela family. The Mhlungu family alleges that reference to “Boston-Kwethu Farm” is an ambiguity with regard to the name of the farm. I do not agree. There is no ambiguity in the name “Boston-Kwethu.” Boston-Kwethu is the farm which was intended by the Mhlungu family when they applied for an eviction order and that is the order they took by default.

 

[13]  Rule 64 of the Land Claims Rules provides:

 

“Variation and Rescission of Orders-

(1) Subject to section 35(11) of the Restitution of Land Rights Act, the Court may suspend, rescind or vary, of its own accord or upon the application of any party, any order, ruling or minutes of a conference which contains an ambiguity or a patent error or omission, in order to clarify the ambiguity or to rectify the patent error or omission.”

 

[14]  Court orders must grant effective relief. In other words, the court order must be capable of giving effect to the purpose for which it was intended. In Minister for Correctional Services and Another v Van Vuuren and Another, In re Van Vuuren v Minister for Correctional Services and Others[6] the Constitutional Court held:

 

“A court may clarify its order or judgment to give effect to its true intention which is to be ascertained from the language used without altering the sense and substance of the judgment if, on its proper interpretation, the meaning remains unclear. But once a court has pronounced a final judgment or order, it has, itself, no authority to correct, alter or supplement it…”

 

[15]  In Mostert NO v Old Mutual Life Assurance Co (SA) Ltd[7] Howie JA said: -

 

“In dealing with the parties’ contentions it is to be borne in mind that the general rule is that a court’s final judgment is not capable of being altered or supplemented. However, there is a limited number of exceptions to the rule. The only one which could apply here is that a court may clarify its judgment or order if, on a proper interpretation, the meaning remains uncertain and it is sought to give effect to its true intention. Even then the sense and substance of the order must not be altered.”

 

[16]  In the same vein, in Butters v Mncora[8] Shongwe JA expressed himself in the following terms: -

 

“…The principle that a court may clarify its judgment or order if, on a proper interpretation, the meaning remains uncertain and it seeks to give effect to its true intention is trite. The sense and substance of the order ought not to be altered.”

 

In the present matter, changing the name of the farm will be tantamount to changing the substance of the order. The intention of the order was to evict the Sokhela family from “Boston-Kwethu Farm” which was the relief sought by the Mhlungu family in their papers. The order in its present form gives effect to the relief sought. It is unfortunate that the Mhlungu family mentioned a wrong farm in their papers. It will not be in the interest of justice to change the name of the farm in order to effect the eviction of the Sokhela family from Virginia Farm which is a farm, different from the farm mentioned by the Mhlungu family in their papers. There is no ambiguity in the present order and its intention is clear. 

 

Costs

[17]  The practice in this court is not to make costs awards unless there are exceptional circumstances which warrant an award of costs. There are no such exceptional circumstances in this case. 

Order

[18]  In the result, I make the following order

1.  The late filing of the application for a rescission by the Sokhela family is condoned. 

 

2.  The order of this court dated 29 November 2021, evicting the First, Second and Third Defendants including any other family member of the Sokhela family from the “Boston-Kwethu Farm” is hereby rescinded.

 

3.  The application for the variation of the eviction order dated 29 November 2021, to delete the name “Boston-Kwethu Farm” and replace it with the “Remaining Extent of Portion 9 of the Farm Virginia No 1823,” is dismissed.

 

4.  There is no order as to costs.

 

  NCUBE J

  Judge of the Land Claims Court of

    South Africa, Randburg

 

Appearances

 

For First & Second Applicants:	Ms Singh, R
Instructed by:	Sameera Cassimjee Attorneys
For First & Second Respondents:	Mr Msomi, L
Instructed by:	Cari Du Toit Inc Attorneys

Date of hearing: 16 May 2023

 

Date of Judgment: 19 July 2023 

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