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REPUBLIC OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC64/2020

In the matter between:

SIBANYONI, JOHANNES BANGISWANI                                       First Applicant

MOLATEDZE, ELIZABETH                                                              Second Applicant

SIBANYONI, GLORIA                                                                         Third Applicant

and

VINDEX (PTY) LTD                                                                              First Respondent

CITY OF TSHWANE METROPOLITAN MUNICIPALITY           Second Respondent

THE DIRECTOR-GENERAL: THE DEPARTMENT

OF RURAL DEVELOPMENT AND LAND REFORM                     Third Respondent

JUDGMENT

NCUBE AJ

Introduction

[1]        This is an application for the variation of the court order, in terms of Rule 64(1) of the Rules of this Court. The application is opposed. As this application was made out of time, the Applicants simultaneously filed an application for condonation. In response to this application, the First Respondent filed a counter application, seeking relief declaring the variation application to be an irregular step in terms of Rule 35(5) of the Rules of this court.

Background facts

[2]        The First Respondent is the owner of the farm Rietfontein 21, Registration Division IR Province of Gauteng (“the farm”). The First, Second and Third Applicants occupy portions 101 to 104 of the farm. On 13 July 2020, the First Respondent filed with this court, an application for the eviction of the Applicants from the farm. (“The original application”). The original application served before my sister Potterill (“Potterill J”) on 01 March 2021. The matter was, on 01 March 2021 settled by agreement between the parties. The order by agreement “the court order,” was presented to Potterill J and accordingly became an order of court.

[2]        In terms of paragraph 1 of the court order, the First, Second and Third Applicants in this matter, and all other people who occupy the farm through them, were evicted from the farm and they had to leave the farm within two months from the date of the order. As the court order was granted on 01 March 2021, they had to vacate the farm by 01 May 2021. The First and Second Applicants have a minor child. The name of the child is Thabang Molatedze (“Thabang”). He is sixteen (16) years old. Thabang is doing matric at Wozanibone Interim Farm School. This school is fifteen (15) kilometers away from the farm and Thabang uses transport provided by the government to travel to school.

[3]        When the Applicants vacate the farm with Thabang, they are going to settle at KwaMhlanga. KwaMhlanga is sixty-eight (68) or seventy (70) kilometers away from Thabang’s present school. It is not clear from the papers if there will be government transport provided for Thabang to travel from KwaMhlanga to school. What is clear though is that, should Thabang’s family vacate the farm now, his schooling will be disrupted.

[4]        Attorneys representing Applicants at the original application, omitted to cater for Thabang in the court order. The attorney Masilo Benny Fisha (“Mr Fisha”) received the court order on 04 March and contacted the Applicants. It was only then that Mr Fisha was made aware of the position of Thabang. It is not immediately clear from Mr Fisha’s Founding Affidavit if he and his counsel were aware of Thabang’s position before they agreed to the terms of the court order. All what Mr Fisha says in his Founding Affidavit is “it then appeared that we had erroneously omitted to cater for the First and Second Respondent’s minor child, Thabang Molatedze, in the court order.” However, whatever the position might have been, I do not think it was a willful omission by Mr Fisha.

[5]        Applicants now seek the variation of the court order by extending the date of eviction from 01 May 2021 to 17 December 2021. On 17 December 2021, Thabang will be through with his matric at school. On 15 March 2021, Mr Fisha contacted the First Respondents’ attorneys seeking indulgence to vary the court order by extending the eviction date to 17 December 2021. On 16 March 2021, the Respondent’s attorneys asked for a written request, which request, Mr Fisha provided to them on the same day. On 17 March 2021, Mr Fisha received a letter from the First Respondent’s attorneys to the effect that their client did not accede to the request for the extension of the date of eviction. Hence this application.

Issues

[6]        The First Respondent contends that the matter is Res Judicata. The court is now functus officio. Rule 64(1) does not cater for situations where the parties themselves made a mistake or omitted certain issues in the order. The omission mentioned in Rule 64(1), is not the omission by the parties, but omission by the court itself, the argument goes. The Applicants, on the other hand contend that the court order in its present form, infringes Thabang’s right to education and it’s against the spirit of section 28(2) of the Constitution which provides that a child’s best interests are of paramount importance in every matter concerning the child.

Discussion

[7]        Rule 64(1) of the Land Claims Court Rules provides:

“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.”

Rule 42(1) of the Uniform Rules of Court is similar to Rule 64(1) of the Land Claims Court Rules and it reads:

“Variation and Rescission of Orders

(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:

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c) an order or judgment granted as the result of a mistake common to the parties.”

[8]        Under common law, by virtue of the res judicata doctrine, once the court has finally decided the case, it cannot revisit or alter its own decision. The doctrine of res judicata ensures that there is finality in court judgments and orders. It prevents judgments from being revisited on the same cause of action and between the same parties. This is a general rule. However, in every general rule, there is an exception. In our constitutional democracy, the main consideration will be the interest of justice. The Land Claims Court is a court of justice and equity. It may reconsider its order if it is just and equitable to do so.

[9]        The interest of justice is a term which denotes a value judgment of what is just and fair to all parties concerned in the case. Common law may well have to adapt to changing times and circumstances when the interests of justice so demand. In Zondi v MEC, Traditional and Local Government Affairs[1] Ngcobo J held:

“The other consideration relates to the need to adapt common law to the changing times and circumstances. In Westrand Estates[2], and in dealing with the time limits for prescription of one day within which the amendment of an order was allowed under common law, the court observed that what was considered to be an expedient or reasonable time previously may not be expedient or reasonable at the present time. It added that time and circumstances bring about change and development; and modern exigencies and conditions may well require the observance of a longer period of prescription. Thus in Estate Garlick the court adapted common law ex necessitate rei to meet the modern exigencies caused by the practices of making the costs order without hearing argument.”

[10]     In the same case[3], Ngcobo J said:

“What emerges from our pre-constitutional era jurisprudence is that the general rule that an order once made is unalterable was departed from when it was in the interest of justice to do so and where there was a need to adapt the common law to changing circumstances and to meet modern exigencies. It is equally clear from the case law that in departing from the general rule, the court invoked its inherent power to regulate its own process…”

[11]     In Molaudzi v The State[4] the Constitutional court held:

“in exceptional cases where a mechanical application of the res judicata would fail to give effect to fundamental rights of the accused and would result in grave injustice, the court is required, even obliged to relax the doctrine to the extent necessary in order to r provide an appropriate remedy.”

[12]     In Molaudzi[5] Theron AJ (as she then was), expressed herself in the following terms:-

“……However, legitimacy and confidence in a legal system demands that an effective remedy be provided in situations where the interest of justice cry out for one. There can be no legitimacy in a legal system where final judgments, which would result in substantial hardship or injustice, are allowed to stand merely for the sake of rigidly adhering to the principles of res judicata”[6]

[13]     Our Constitution is the supreme law of the land and all laws, including common law must conform to the demands of the Constitution.[7] To that end, section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Therefore, Thabang’s schooling is of paramount importance in this matter, should he be evicted from the farm with his parents, at this stage, his education will be disrupted. In terms of section 29(1)(a) of the Constitution, Thabang has a right to basic education. Section 39(2) of the Constitution enjoins every court when interpreting any legislation, and when developing common law or customary law to promote the spirit, purport and objects of the Bill of Rights.

Counter Application

[14]     The First Respondent filed an application in terms of Rule 32(5) of the Rules of this court for the application by the First to Third Applicants to be declared to be an irregular step. The Applicants deny that their application constitutes an irregular step. As mentioned earlier, in this judgment it will not be in the best interest of Thabang to order his eviction and that of his parents from the farm before Thabang completes his schooling term. The Applicants had no other remedy available to them other than to seek the variation of the court order to accommodate the interest of Thabang. I need not say more than this.

Application for condonation

[15]     Applicants filed an application for condonation of their late filing of the variation application. In terms of Rule 64(2)(a), the variation application ought to have been delivered ten (10) days from the date on which the Applicants became aware of the order. Mr Fisha, who deposed to a Founding Affidavit in this application, says he became aware of the order on 04 May 2021. To that end, the variation application should have been filed on 15 March 2021, but it was filed with the Registrar on 24 March 2021.

[16]     As a general rule, condonation will be allowed only in those instances where good cause is shown to exist. In casu, Mr Fisha says that the delay was caused by the fact that at first they sought indulgence from the First Respondent to consent to the variation of the court order without the need to move a formal application. At first, the request to the First Respondent’s attorneys was telephonic. The following day, attorneys asked for the request to be reduced tow writing. That was done. Thereafter, the Respondent’s attorneys indicated that their client had refused the request. It was only then that the Applicants initiated a formal application to this court. On those facts, I am satisfied that the Applicants have shown good cause for the late filing of the variation application. This leaves me with the question of costs.

Costs

[17]     In its counter application, the First Respondent seeks a de bonis propris cost order, on attorney and client scale, against Mr Fisha. The basis on which the First Respondent seeks a punitive costs order against Mr Fisha, is his alleged unprofessional conduct and on account of the procedure he adopted in his Rule 64(1) application, which, according to the First Respondent, amounts to abuse of court process.

[18]     The practice in this court is not to make costs orders unless there are exceptional circumstances which justify an award of costs. As I have stated in this judgment earlier, Rule 64(1) application was necessary to cater for the education of Thabang. The First Respondent contends that Mr Fisha did not become aware of the court order on 04 March 2021 as he claims, but he was contacted when the terms of the order were negotiated and he made input into the terms of the court order.

[19]     Costs de bonis propriis are awarded against erring practitioners only in reasonably serious cases, involving dishonesty, willfulness or a gross negligence. In Stainbank v SA Apartheid Musuem at Freedom Park[8] Khampempe J said:

“Punitive costs have been granted when a practitioner instituted proceedings in a haphazard manner, willfully ignored court procedure or rules, presented the case in a misleading manner and forwarded an application that was plainly misconceived and frivolous.”

Applying the above principles, I cannot find in the case of Mr Fisha, any conduct which warrants the de bonis propriis costs award. He did not act inappropriately. The application he brought was not misconceived or frivolous.

Order

[25]     In the result, I make the following order:

1.    The application for condonation is granted.

2.    The application for the variation of the court order dated 01 March 2021 is granted.

3.    The court order dated 01 March 2021 is varied by deleting the words “two months of this order” in paragraph 1 of the said order and replacing them with the words “17 December 2021.”

4.    The counter application is dismissed.

5.    There is no order as to costs.

                                                                                                M T NCUBE

                                                                          Acting Judge of the Land Claims Court of                                                                                          South Africa, Randburg

Date judgment reserved: 11 June 2021

Date judgment delivered: 19 July 2021

Appearances

For the Applicants:  Adv. C.I. Mokoena

Instructed by:           Fisha Attorneys, 106 Johan Street Dennehof

For the First Respondent: Adv. G.F. Porteous

Instructed by:         Ulrich Roux and Associates Parkhurst

[1] 2006 (3) SA 1 (CC) para 33

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