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Mathe and Another v St. John's Apolistic Church of Prophecy and Others (1958/2007)  ZANWHC 25 (15 August 2008)
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HELD at MMABATHOBEFORE THE HONOURABLE MR JUSTICE A A LANDMAN
In the matter between:
MATHE: MPELEGENG DORAH First ApplicantST JOHN’S APOSTOLIC FAITH MISSION CHURCH Second Applicant
ST JOHN’S APOSTOLIC CHURCH
OF PROPHECY First Respondent
ALL HEIRS OF THE ESTATE OF THE
LATE MOTHER KNU AS LISTED UNDER
ANNEXURE “DMM2” Second Respondent and
1. The applicant applies for the following order:
1. Declaring that Mrs Dorah Mpelegeng is the executrix of the estate of thethe late Mother Christina Mokotudi Ada Nku (“The late Christina Nku”).
2. Declaring that the First and Second Applicants have the rights toreplace the tombstone on the grave of the late Cristina Nku at
Vogelstruisdraaifarm, Motlollo, Madikwe, Dwarsburg Area, Rustenburg North West.
3. Declaring that the First and Second applicants are entitled to decide on
and attend to the erection or replacement of a tombstone at theabovementioned grave of the late Christina Nku.
4. Authorising the sheriff and /or deputy sheriff of the Madikwe District toThe removal of the aforesaid tombstone erected by the First and Second
In the event of the first and Second respondent failing to remove the above-mentioned tombstone.
2. Ms.N Gutta appeared on behalf of the applicants. The matter was not opposed. Before Ms Gutta moved for an order in terms of the Notice of Motion (encapsulated in a draft order), she referred me to the matter of Mathe Mpelegeng Dorah vs St John’s Apostolic Church of Prophecy and Romokoka: Ralethamaha Enoch 462/2003. This matter came before me in 2003 and was referred for oral evidence. H Lever AJ heard the evidence and delivered judgment. The order which he made reads:
“The Rule Nisi be and is hereby discharged. The application be and is hereby dismissed with costs which had been reserved, which the first applicant is directed to pay.”
3. Ms.Gutta submitted that the matter before me was not res judicata. The law regarding res judicata is set out in National Sorghum Breweries  ZASCA 159; 2001 (2) SA 232 (SCA) at 239 reads:
“The exeptio rei judicatae vel litis finitae
 The requirements for a successful reliance on the exeptio were, and still are: idem actor, idem reus , eadem res and eadem causa petendi .This means that the exeptio can be raised by a defendant in a later suit against a plaintiff who is ‘demanding the same thing on the same ground ‘ (per Steyn CJ in African Farms and Townships Ltd v Cape Town Municipality 1963 (2) at 562A; or which comes to the same thing, ‘on the same cause for the same relief ‘ (per Van Winsen AJA in Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472A-B; see also the discussion in Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) at 664C-E); or which also comes to the same thing, whether the ‘same issue’ had been adjudicated upon (see Horowitz v Brock and Others 1988 (2) SA 160 (A) at 179A-H).
 The fundamental question in the appeal is whether the same issue is involved in the two actions: in other words, is the same thing demanded on the same ground, or, to put it more succinctly, has the same issue now before the Court been finally disposed of in the first action?”
4. The applicants and the first respondents in the present matter were also parties in the 2003 matter. In the 2003 matter the applicants sought the following relief:
2. That a rule nisi do issue is calling upon the First an Second respondents to show cause, if any, to this Honourable Court on 4 September 2003 at 10:00 or soon thereafter , why an order should not be granted in the following terms:
2.1 Restraining the First and Second respondents and/or any of their agents or members from unveiling the tombstone erected on the 4th and 5th August 2003, by the First and Second Respondents at the grave of Mother, Prophetess Christina Mokotudi Nku, Madikwe, Dwarsburg area, Rustenburg,. Northwest Province:
2.2 Declaring the erection of the said tombstone by the First and Second respondent wrongful and/or unlawful;
2.3 Declaring that the First Applicant is entitled to decide on and to attend to the erection of the tombstone at the aforesaid grave of Mother, Prophetess Mokotudi Ada Nku;
2.4 Directing the First and Second Respondents to remove the tombstone erected by the first and/or Second Respondent at the aforesaid grave of Mother, Prophetess Christina Mokotudi Ada Nku within two days of the granting of an final order in this application;
2.5 Authorising the sheriff and/or deputy sheriff of the Madikwe district to attend to the removal of the aforesaid tombstone erected by the First and/or Second Respondent forthwith, in event of the First and/or Second Respondent failing to so remove the aforesaid tombstone in terms of prayer 2.4 above, the costs of which removal to be borne by the respondents;
3. Declaring that prayer 2 should operate as an interim order with immediate effect, pending the return date of the rule nisi, which is 4 September 2003.
5. It was common cause that the tombstone had been erected by the St John’s Apostolic Church of Prophecy, the first respondent in both the 2003 and this matter. The second respondent in the 2003 matter is deceased. The second and further respondents in this matter are cited because of their possible interest in the matter; not because they erected the tombstone. The same relief is claimed in this matter as was in the 2003 matter. The judgment in the 2003 matter is probably a final order. Prima facie a defence of res judicata would succeed. The applicants are not entitled to the main relief they claim.
7. In Blaikie-Johnstone v P Hollongsworth (Pty) Ltd and Others 1974 (3) SA 392 (D) at 395C-G Howard J (as he then was) noted that res judicata must be raised by the defendant filing a special plea or the defendant is taken to have waived it. But in that case a judgment had been granted by consent and Howard J considered that:
“Because it was granted in this very action the Court has knowledge of the previous judgment, and knows that if the plaintiff were to institute a fresh action for the recovery of the balance of its claim, it could, and probably would be met by a plea of res judicata.”
8. In the result the court left the matter open and required that there be proper service on the defendants. In this matter I have been referred to the judgment in the 2003 matter by applicants’ counsel and I therefore I may take notice of it. There may well be other circumstances when, having regard to the public policy principles underlying the exceptio res judicata, a court may take notice of a prior final judgment in another matter.
9. In this matter I, too, consider that I should leave the matter open. The papers should be reserved or served upon especially the first respondent. The return of service by the Sheriff states:
“I DULY SERVED THE COPY OF THE SUMMONS AND RECEIVED BY BISHOP ESTHER MAZIBUKO ON BEHALF OF THE 1ST RESPONDENT MOKOTHULI CHRISTINAH NKU AT HOUSE NO 477, START SECTION, FIRST GATE, KAMEELBOOM.”
10. In the first place it does not say that the notice of motion and supporting documents were served. In the second instance it states that the 1st respondent is Mokothuli Christinah Nku while the first respondent is St John’s Apostolic Church of Prophecy.
11. Some other returns of service also reflect that a summons was served.
12. As far as prayer 1 is concerned the papers have not been served on the Master of the High Court.
13. In the result I make the following order:
The application is postponed sine die for proper service on the first respondent and other respondents who, prima facie, were served with a summons and not the notice of motion and supporting documents.
JUDGE OF THE HIGH COURT
Date of hearing: 07 August 2008
Date of judgment: 15 August 2008