IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA Heard at CAROLINA on 4 March 2002 CASE NUMBER: LCC 115/99 Before: Gildenhuys AJ Decided on: 15 March 2002 In the case between: COMBRINCK, H J Plaintiff and NHLAPO, T Defendant JUDGMENT GILDENHUYS AJ: History of the proceedings [1] The plaintiff in this matter is the owner of the farm Twyfelaar, in the district of Carolina, Mpumalanga. The defendant lives on the farm, so does his father. The plaintiff issued summons in the Magistrate s Court of Carolina for the defendant s eviction. He alleged in his particulars of claim that the defendant is an occupier as defined in the Extension of Security of Tenure Act 1 (herein referred to as ESTA ). The plaintiff applied for summary judgment. In his opposing affidavit, the defendant alleged:... I submit that I am protected by the provisions of the Land Reform (Labour Tenants) Act 3 of 1996 as I am a member / associate of my father who qualifies to be a labour tenant or alternatively I am protected by the Provisions of the Extension of Security of Tenure Act 62 of 1997 as I was on the land long before 4 February 1997 and continued to reside there to today. The defendant, in his plea, denied the allegation that he is an occupier (as defined), and pleaded that he is a labour tenant in terms of the Provisions of the Land Reform (Labour Tenants) Act 1 Act 62 of 1997, as amended.

2 2 3 of There was no alternative plea that he is an occupier as defined in ESTA, and entitled to protection under ESTA. The magistrate s court has no jurisdiction to adjudicate on the plea that the defendant is a labour tenant. 3 As required by section 13(1A) of the Land Reform (Labour Tenants) Act, the magistrate transferred the case to this Court. [2] Originally the defendant was represented by a firm of attorneys. They withdrew before the hearing. The case was heard in this Court before my colleague, Moloto AJ, on 4 and 24 April The plaintiff was represented by Mr Brandmüller. The defendant appeared in person. He gave evidence, and also called his father as a witness. The proceedings, including the opening address and the argument at the end, were electronically recorded and transcribed. [3] In his opening address on 4 April 2001 Mr Brandmüller said: In my preparation for the trial I have also come to the conclusion that the defendant and his attorneys at the time were right, and... [t]hat he [the defendant] is in fact not an occupier, and that the dispute in this matter, which should be before this court, is whether he is a labour tenant or not, and that I will concede that paragraph 3 of the particulars of claim is in fact incorrect, and insofar as it may be necessary I would apply in terms of rule 22(7) of the rules of this court, for an amendment to that effect. 4 There is no indication in the papers before me that the amendment was ever applied for, nor that paragraph 3 of the particulars of claim was ever amended. Immediately before the commencement of evidence, the following exchange occurred between Moloto AJ and Mr Brandmüller: COURT: Okay. Then maybe you may proceed then Mr Brandmuller? MR BRANDMULLER: On the basis that the only point in dispute is that he is a...(intervenes) COURT: Whether he is a labour tenant or not? 2 A labour tenant is excluded from the definition of occupier contained in section 1 of ESTA. This exclusion was deleted by section 6(a) of the Land Affairs General Amendment Act 51 of 2001, with effect from 29 November Unless the magistrate court has already heard oral evidence: see section 13(1A)(b) of the Land Reform (Labour Tenants) Act, 3 of Record, p 2, lines 2-12.

3 3 MR BRANDMULLER: Labour tenant. 5 It is apparent from the record that Mr Brandmüller proceeded with the case on the basis that the only issue in dispute was whether the defendant is a labour tenant, or an associate of a labour tenant. [4] At the conclusion of the hearing on 24 April 2001, Moloto AJ reserved judgment. He handed down a written judgment on 29 May He found that the defendant is not a labour tenant, or an associate of a labour tenant. He then proceeded with his judgment as follows: I now need to determine whether the defendant is an occupier in terms of ESTA, and if so, whether he stands to be evicted. The plaintiff alleges in his particulars of claim that the defendant is an occupier... I do not know how much the defendant earns[ 7 ] so I am unable to make any order in terms of ESTA at this stage. I do, however, need to make some comments on the application of ESTA to the facts of this case. Before an occupier may be evicted the land owner must lawfully terminate the right of residence. The plaintiff alleges that he is entitled to evict the defendant because the defendant does not work for him. This allegation cannot be accepted because the defendant does not derive the right to reside on Twyfelaar from an employment relationship with the plaintiff. Twyfelaar has been the defendant s home from the time of his birth. I am not satisfied that the right of residence of the defendant has been lawfully terminated. 8 Moloto AJ concluded his judgment by dismissing the plaintiff s claim. [5] Following upon the dismissal of his claim and by notice dated 30 May 2001, the plaintiff applied to this Court that the order of Moloto AJ dated 29 May 2001 be set aside and substituted by the following order: Defendant is ordered to vacate the farm Twyfelaar within 30 (thirty) days of service on him of this order, failing which the sheriff is authorised to remove him from the land immediately on expiry of the 30 (thirty) day notice period. 5 Record, p 8, lines Reported at [2001] 4 All SA 326 (LCC). 7 A person who earns more than R5000 per month is, according to the definition in section 1(1) of ESTA (read with para 2(1) of the ESTA regulations published in Regulation R1632 Government Gazette 19587, 18 December 1998) not an occupier. 8 Para [12] of the judgment.

4 4 The application was supported by an affidavit by Mr Brandmüller, the relevant portions of which read as follows: 6. At the commencement of the hearing, I, on behalf of Applicant/Plaintiff conceded that Respondent/Defendant was not an occupier as defined in ESTA. 7. This concession was in line with the Defendant s papers as prepared by Defendant s attorneys, Ntuli Noble and Spoor, where Defendant denies specifically that he is an Occupier as defined in ESTA The Court held that Respondent was not a Labour Tenant or an associate in paragraph 11 of the judgment. 12. It is respectfully submitted that once the Court has held that Defendant is not a Labour Tenant and it is common cause that Defendant is not an Occupier then the Defendant is not entitled to the protection of Act 3 of 1996 or Act 62 of 1997 and that the Court then can and must proceed with the eviction of Defendant. 13. It is respectfully submitted that the order to dismiss the Applicant/Plaintiff s action is based on a patent error as described above. [6] On 28 August 2001 Moloto AJ heard the application for the setting aside of his order of 29 May On the same day, he made the following order: The matter will be - (a) (b) (c) re-heard on the question whether the defendant is an occupier as defined in terms of the Extension of Security of Tenure Act, Act 62 of heard by another judge. heard in Carolina, Mpumalanga. After the order was made, the case was transferred to me, and I became the presiding judge in this matter. [7] It is not clear whether Moloto AJ was entitled to consider possible defences under ESTA against the plaintiff s action for the defendant s eviction. Any such defence ought to have been raised in the plea. 9 In this matter, it was raised only in the summary judgment proceedings. For purposes of this judgment, I need not decide that issue. It is clear that Mr Brandmüller believed 9 Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561 (LCC), [1999] 2 All SA 622 (LCC) at para [27], followed in Khuzwayo v Dludla 2001 (1) SA 714 (LCC), [2000] 4 All SA 329 (LCC) at para [9] and [11] and in Esterhuyze v Khamadi 2001 (1) SA 1024 (LCC) at para [11].

5 5 it to be common cause that the defendant is not an occupier entitled to protection under ESTA. Because Moloto AJ ordered the matter to be reheard on the question of whether the defendant is an occupier as defined in ESTA, he must have been of the opinion, rightly or wrongly, that consideration should be given to the eviction provisions of ESTA, and that it was not dealt with at the trial because Mr Brandmüller was under the well-founded impression that possible defences under ESTA were not in issue. [8] The rehearing (pursuant to the order made by Moloto AJ on 28 August 2001) was set down before me for 4 March I informed Mr Brandmüller that, before the commencement of any other proceedings on that day, I would require argument on the following issues: (a) was Moloto AJ competent to make the order which he made on 28 August 2001; and (b) if Moloto AJ was not competent to make that order, what is its effect? Mr Brandmüller submitted extensive heads of argument, and argued the two issues before me on 4 March The defendant was not represented, but was present in person at the hearing. He addressed the Court, asking it not to grant an eviction order against him. He did not, and could not, 10 deal with the legal issues which I asked Mr Brandmüller to address me on. I reserved judgment. No further proceedings took place on that date. Could the order of 29 May 2001 have been rescinded or varied? [9] Section 35(11) of the Restitution of Land Rights Act 11 provides for the rescission or variation of an order made by the Land Claims Court. It reads: (11) The Court may, upon application by any person affected thereby and subject to the rules made under section 32, rescind or vary any order or judgment granted by it -... (b) which was void from its inception or was obtained by fraud or mistake common to the parties; 10 He appears to be an unsophisticated person. 11 Act 22 of 1994.

6 6... Rule 64 of the Land Claims Court rules also deals with the variation and rescission of court orders. Rule 64(1) reads: 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 High Court rules governs the variation and rescission of orders of the High Court. The rule is, in may respects, similar to the corresponding Land Claims Court rule. High Court decisions on the variation and rescission of court orders will therefore be relevant in this Court. The High Court rule reads: (1) The court may, in addition to any other powers it may have, mero motu or upon the application of any part affected, rescind or vary: (a)... (b) (c) 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; an order or judgment granted as the result of a mistake common to the parties. [10] Under common law, once a court has pronounced a final judgment or order, it becomes functus officio. Its jurisdiction in the case ends. 12 There are, however, some exceptions to this rule which have been recognised by the old authorities and authoritatively accepted by the courts. 13 These exceptions have largely been incorporated in legislation, or in rules of court. Three of them may be relevant for purposes of this case. Trollip JA formulated these exceptions as follows in Firestone South Africa (Pty) Ltd v Genticuro AG: 14 (i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the Court overlooked or inadvertently omitted to grant Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F-G. 13 Firestone case, above n 12, at 306H. 14 Above n 12.

7 7 (ii) The Court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment or order... (iii) The Court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention... This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance. 15 [11] Mr Brandmüller submitted that the judgment of Moloto AJ contains a patent error in that he relied on the provisions of ESTA for dismissing the eviction claim. Defences under ESTA were not in issue at the trial. In order to rectify the error, Moloto AJ withdrew the dismissal of the claim (albeit by implication), and ordered a re-hearing on the question whether or not the defendant is an occupier as defined in ESTA. That is not an addition to his order in respect of an accessory or consequential matter, nor is it a clarification to elucidate something which might be obscure, ambiguous or uncertain, nor is it a correction of a clerical, arithmetical or other error necessary to give effect to its true meaning, without extending or altering its intended sense or substance. It would appear, according to the Firestone decision, that Moloto AJ did not have the requisite jurisdiction to withdraw his order dismissing the eviction claim and to substitute it by a different order. [12] Mr Brandmüller relied mainly on a decision by Eloff JP in the case of First National Bank of Southern Africa Ltd v Van Rensburg NO 16 for his submission that the type of error made by Moloto AJ can be corrected. In that case the summons issued against several defendants claimed judgment for a specific amount against them jointly and severally, the one to pay the others to be absolved pro tanto. 17 The claim was not defended, and default judgment was applied for. In the notice of set down, judgment for the specific amount was sought, without stating that it would be on a joint and several basis. Judgment was given against the defendants jointly. Some years later, the plaintiff applied for the rectification of the order so as to reflect a judgment given against the defendants jointly and severally, on the submission that the original order contained a patent error or omission. Eloff JP held: 15 Firestone case, above n 12, at 306H-307D. 16 First National Bank of Southern Africa Ltd v Van Rensburg NO and Others: In re First National Bank of Southern Africa Ltd v Jurgens and Others 1994 (1) SA 677 (T). 17 Above n 16, at 679A-B.

8 8 This submission has no merit. There would only have been room for this contention if the order has not followed the wording of the notice of set down. There is no basis on which it can be said that the order does not reflect the intention of the Judge. 18 Mr Brandmüller submitted that, if in the First National Bank case the order did not accord with the notice of set down, the Court would have had jurisdiction to rectify it. Consequently, Moloto AJ would also have jurisdiction to rectify an order made on an issue which was not relevant at the trial. Even if the above dictum supports the consequence contended for, which I doubt, it would be out of line with an abundance of authority to the contrary, as I will indicate hereunder. [13] The central proposition in the Firestone case that, subject to a limited number of exceptions, once a court has made a final order it has itself no authority to correct, alter or supplement it, was approved by the Constitutional Court in Minister of Justice v Ntuli 19 and in Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council. 20 The errors and omissions which can be rectified, are errors and omissions of a particular kind. Berman AJ stated in Seatle v Protea Insurance Co Ltd: 21 A patent error or omission has been described as an error or omission as a result of which the judgment granted does not reflect the intention of the judicial officer pronouncing it. See First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T) at 608F; in the present case (as in the case under consideration on appeal by COLMAN J in McMullin s case) it is irrelevant whether the reasoning of the Court was sound or unsound - it is quite clear that the order made by me reflected my considered decision as given expression to in my judgment and my true intention to make the awards in the amounts stated by me. 22 The same conclusion was reached in First National Bank of South Africa Ltd v Jurgens and Others, 23 First Consolidated Leasing Corporation v McMullin 24 and Transvaal Canoe Union v 18 At 380I of the judgment (3) SA 772 (CC), 1997 (6) BCLR 677 at para [22] (4) SA 1288 (CC) at para [4] and [5] (2) SA 537 (C). 22 Above n 21 at 541C-D (1) SA 245 (W) at 246F-G. This decision was confirmed on appeal: see n 16 above (3) SA 606 (T) at 608F.

9 9 Butgereit and Another. 25 In the present matter, Moloto AJ fully intended to dismiss the plaintiff s claim, although he failed to bear in mind that his basis for doing so relates to an issue which was not before the Court. His reason for dismissing the claim, albeit unsound, supports the dismissal. There was no patent error or omission which resulted in the order not reflecting his true intention. The effect of the order reopening the case [14] Mr Brandmüller submitted that rule 64(1) of the Land Claims Court rules does not permit the Court to go beyond rectifying a patent error. Accordingly, it could not have been the intention of the rule to permit the Court to re-open a case for the submission of new evidence. On the facts of this particular case, that submission has force. However, if the order that the matter be reheard on the question whether the defendant was an occupier or not, is beyond the Court s jurisdiction, it is difficult to appreciate how the withdrawal of the order dismissing the action can be valid. [15] An order which a court has no jurisdiction to make, is a nullity. 26 It has no force or effect whatsoever. Upon proof of its invalidity, the order may be disregarded without the necessity of another order setting it aside. 27 This was confirmed by Fannin J in Mkhize v Swemmer and Others, 28 where he held: The rule is that judicial decisions will ordinarily stand until set aside by way of appeal or review, but to that rule there are certain exceptions, one of them being that, where a decision is given without jurisdiction, it may be disregarded without the necessity of a formal order setting it aside (3) SA 398 (T) at 403E-I. 26 Sliom v Wallach s Printing and Publishing Co Ltd 1925 TPD 650 at 656; Tödt v Ipser 1993 (3) SA 577 (A) at 589C-G. 27 Dada v Dada 1977 (2) SA 287 (T) at 288C-E (1) SA 186 (D). 29 Above n 28 at 197C-D.

10 10 [16] In this case, when Moloto AJ dismissed the plaintiff s claim on 29 May 2001, he became functus officio. 30 Any further order in the case, except an order which falls within one of the recognised exceptions, will be void, since the judge making the order has ceased to be the Judge. 31 In my view, the order made by Moloto AJ on 28 August 2001 is void ab initio. 32 Conclusion [17] I conclude that I have no jurisdiction to proceed with a further hearing of this case. The case was finally decided by Moloto AJ. If I am wrong in this view and if I were to proceed with a hearing in the case, I will be proceeding with a partly heard trial, because viva voce evidence has already been led before Moloto AJ. In the absence of consent between the parties, 33 a differently constituted Court is not entitled to continue with a partly heard trial. In circumstances where the original judge can no longer preside, the trial must commence afresh. 34 [18] For the reasons stated above, I make no order. ACTING JUDGE A GILDENHUYS For the plaintiff: Brandmüller-Taljaard Attorneys, Middelburg. The defendant was present in person. 30 Minister of Agricultural Economics and Marketing v Virginia Cheese and Food Co (1941) (Pty) Ltd 1961 (4) SA 415 (T) at 422E-426H. 31 Voet , as quoted in the Virginia Cheese decision (above n 30) at 424F. 32 The order is quoted in para [6] above. 33 See P.Lorillard Co v Rembrandt Tobacco Co (Overseas) Ltd 1967 (4) SA 353 (T) at 355A-C and Samuel and Others v Seedat 1949 (3) SA 984 (N) at Mhlanga v Mtenengari and Another 1993 (4) SA 119 (ZSC) at 122B.