IN THE LAND CLAIMS COURT OF SOUTH AFRICA

IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at CAPE TOWN on 13 September 1999 CASE NUMBER: LCC 151/98 before GILDENHUYS J In the case between: THE RICHTERSVELD COMMUNITY Plaintiffs and ALEXKOR LIMITED THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA First Defendant Second Defendant JUDGMENT GILDENHUYS J: [1] On 9 December 1997, five plaintiffs issued summons in the High Court of South Africa (Cape of Good Hope Provincial Division) against the Government of the Republic of South Africa (represented by the Minister of Public Enterprises) as first defendant, and against Alexkor Limited as second defendant. The plaintiffs alleged that they are members of a community known as the Richtersveld people. They claimed an order declaring that the Richtersveld people are entitled to the exclusive beneficial occupation and use of certain land 1 which forms part of an area known as the Richtersveld, on the grounds that they hold aboriginal title to the land. As a first alternative, they alleged that the Richtersveld people acquired ownerships of the land by appropriation, and claimed an order declaring that the Richtersveld people own the land. As a second alternative, they claimed an order declaring that the Richtersveld people hold a public servitude over the land, acquired through vestustas, which entitles them to its exclusive beneficial occupation and use. 1 The land was described as Farms 2 and 5 held under title deed 939/1993, Farm 621 held under title deed 71691/1993, Farms 1 and 155 held under title deed 32346/1994, Farm 625 held under title deed 69531/1994 and Farm 678 Port Nolloth held under title deed 732346/1994.

2 [2] The land is registered in the name of Alexkor Limited. The Government is the sole shareholder of Alexkor Limited. The Government filed a notice that it will abide by the decision of the Cape High Court for as long as no order as to costs is sought against it. Alexkor Limited filed a plea dated 24 June 1998 in which it prayed for an order that all plaintiffs claims be dismissed. The proceedings against the defendants in the Cape High Court are still pending. [3] By notice of action dated 17 December 1998 a case was initiated in this Court by the community of Richtersveld people and by the individual adult members of the Richtersveld community, whose names are listed in an annexure to the statement of claim. The first defendant in this action is Alexkor Limited, and the second defendant is the Government of the Republic of South Africa, represented by the Minister of Public Enterprises. The action relates to the same land, although the property descriptions given in the papers before this Court are more detailed, and probably more accurate. [4] In their statement of claim in this Court, the plaintiffs alleged that the Richtersveld people held aboriginal title to the land, which was not at any time prior to 19 June 1913 lawfully extinguished or diminished. In the alternative, the plaintiffs alleged that they acquired a right in land through beneficial occupation of longer than ten years prior to the eventual dispossession thereof. Their rights in respect of the land, so the plaintiffs alleged, were dispossessed by legislative and executive state action after 19 June 1993 as a result of racially discriminatory laws and practices. They did not receive just and equitable compensation or any compensation at all in respect of the dispossession. They claim restitution under the Restitution of Land Rights Act. 2 I will refer to that Act as the Restitution Act. [5] Alexkor Limited filed a plea in this Court, asking that the plaintiffs claims be dismissed. The Government, then represented by the Minister of Public Enterprises, filed a notice that it will abide by the decision of this Court. Subsequently, the Department of Land Affairs sought leave, and was given leave, to intervene in the proceedings. It then filed a plea on behalf of the Government, also asking that plaintiffs claims be dismissed. 2 Act No 22 of 1994, as amended. Restitution of a right in land is defined in section 1 of the Restitution Act as the restoration of a right in land or equitable redress.

3 [6] Pursuant to leave granted to Alexkor Limited to amend its plea in this Court, it filed three special pleas during June 1999. In the first special plea, Alexkor Limited alleged that whatever rights the Richtersveld people might have had in the Richtersveld, were extinguished before 19 June 1913. Consequently, this Court has no jurisdiction to entertain the restitution claim for want of compliance with section 2(1) of the Restitution Act. 3 In the second special plea, the first defendant pleaded that this Court is not competent to inquire into the issue of aboriginal title. In the third special plea the plaintiffs referred to the pending proceedings in the Cape High Court, raised the defence of lis pendens and prayed that plaintiffs claims either be dismissed, or that the action in this Court be stayed pending the decision of the action in the Cape High Court. [7] The third special plea was argued before this Court on 13 September 1999. The parties filed a statement of agreed facts. No evidence was led. On 14 September 1999, I made the following order: (a) First Defendant s third special plea (relating to the defence of lis pendens) is dismissed; and (b) Costs will stand over for decision at the trial. I undertook to give reasons later. The reasons for my order are set out hereunder. [8] A defence of lis pendens depends upon the existence of a pending earlier action. 4 The mischief at which the defence is directed is that it is prima facie vexatious to bring two actions in respect of the same subject-matter. 5 The requisites for a valid plea of lis pendens are that the actions must be between the same parties, must concern the same thing and must arise from the 3 Section 2(1)(d) of the Restitution Act requires that a claimant must have been dispossessed of the right in land after 19 June 1913. 4 Herbstein and Van Winsen The Practice of the Supreme Court of South Africa, 4 th ed (Juta, Cape Town, 1997) at 249. 5 Loader v Dursot Brothers (Pty) Ltd 1948 (3) SA 136 (T) at 138.

4 same cause of action. 6 In this instance, both actions are between the same parties and relate to the same land. In the High Court action, the plaintiffs alleged that they hold certain rights in respect of the land and they claimed enforcement of those rights. In the action before this Court, the plaintiffs alleged that, in the past, they held certain rights in respect of the land and that they were dispossessed of those rights after 19 June 1913 as a result of past racially discriminatory laws or practices. They claim restitution of the rights, 7 either through restoration of the rights 8 or through equitable redress. 9 In both cases, different forms of rights are pleaded in the alternative. Some of the alternatives pleaded in the High Court overlap with alternatives pleaded in this Court, particularly the rights to indigenous title. [9] The defence of lis pendens is related to the defence of res judicata. See Voet, 44.2.7: 10 Exception of lis pendens also requires same persons, thing and cause. - The exception that a suit is already pending is quite akin to the exception of res judicata, inasmuch as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which after a suit has been ended there is room for the exception of res judicata in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending. In determining the ambit of the defence of lis pendens, regard may be had to authorities dealing not only with lis pendens, but also with res judicata. 11 [10] In the matter of Bafokeng Tribe v Impala Platinum Limited and Others 12 Friedman JP 6 Williams v Shub 1976 (4) SA 567 (C) at 570C; Mtshali v Mtambo and Another 1962 (3) SA 469 (EW) at 475A-B; Mitford s Executor v Ebden s Executors and Others 1917 AD 682 at 686. 7 See the definition of restitution of a right in land in the Restitution Act, supra n 2. 8 See the definition of restoration of a right in land in the Restitution Act. 9 See the definition of equitable redress in the Restitution Act. 10 Voet, Commentary on the Pandects, translated by Gane (Butterworths, Durban, 1957). 11 Van As v Appollus and Others 1993 (1) SA 606 (C) at 608J; Wolff NO v Solomon (1898) 15 SC 297 at 307; Marks and Kantor v Van Diggelen 1935 TPD 29 at 37. 12 1999 (3) SA 517 (BHC) at 566B-C.

described the essentials of the exceptio res judicata as follows: 5 From the aforegoing analysis I find that the essentials of the exceptio res judicata are threefold, namely that the previous judgment was given in an action or application by a competent court (1) between the same parties, (2) based on the same cause of action (ex eadem petendi causa), (3) with respect to the same subject-matter, or thing (de eadem re). Requirements (2) and (3) are not immutable requirements of res judicata. The subject-matter claimed in the two relevant actions does not necessarily and in all circumstances have to be the same. [11] In the present instance, if the case in the High Court should proceed and the High Court should find that the plaintiffs never acquired any rights under indigenous title, this Court would be bound by that finding pursuant to the doctrine known as issue estoppel. Friedman JP, in the Bafokeng Tribe case, 13 described the doctrine of issue estoppel as follows: The doctrine of issue estoppel had the following requirements: (a) where a court in a final judgment on a cause has determined an issue involved in the cause of action in a certain way, (b) if the same issue is again involved, and the right to reclaim depends on that issue, the determination in (a) may be advanced as an estoppel in a later action between the same parties, even if the later action is founded on a dissimilar cause of action. Issue estoppel is a rule of res judicata but is distinguished from the Roman-Dutch Law exception in that in issue estoppel the requirement that the same subject-matter or thing must be claimed in the subsequent action is not required. Issue estoppel has a twofold requirement. Friedman JP then pointed out 14 that issue estoppel is founded on a policy to avoid a multiplicity of actions, and said: There is a tension between a multiplicity of actions and the palpable realities of injustice. It must be determined on a case by case foundation without rigidity and the overriding or paramount consideration being overall fairness and equity. The considerations of equity will differ from case to case, as was said by Botha JA in Kommissaris van Binnelandse Inkomste v Absa Bank Bpk: 15 Elke saak moet volgens sy eie feite beslis word. Dit is ook nie doenlik om in abstrakte terme rigsnoere te probeer formuleer wat op alle situasies van toepassing gemaak sou kan word nie. 13 Supra n 12 at 566F-G. 14 Supra n 12 at 566I-J. 15 1995 (1) SA 653 (A). See also 676B-E.

6 [12] The basis of any argument that I must stay this action pending the decision of the Cape High Court on the question of whether the plaintiffs ever acquired land rights under indigenous title or otherwise is based on the premise that a finding by the High Court on that issue will be binding upon this Court. On the principles of issue estoppel, this premise may well be correct. Issue estoppel is a rule of res judicata. The rules of res judicata are identical to the rules of lis pendens. These rules are, however, not immutable rules. 16 If I borrow from them to decide a lis pendens defence, I must at the same time respect the other requirements of that defence. Given the wide diversity of the overall ambit of the two cases, the mere existence of one or more identical issues in dispute in the two cases does not, in my view, justify a successful plea of lis pendens. [13] I now revert to the requirement that, for a successful plea of lis pendens, both cases must arise from the same cause of action. Although some relief claimed in the High Court as well as some relief claimed in this Court is based on the same imperative, namely that plaintiffs must have acquired certain rights in respect of the land (particularly the right of aboriginal title ), the causes of action (or the causae agendi) are entirely different. 17 The fundamental issue in the first case is the enforcement of existing rights. In the second case it is the restitution of previously held rights which were taken away. The relief in the second case is not merely incidental upon a finding that the original rights existed. There are many more requirements to be met under the Restitution Act. Furthermore, the relief in the second case will not necessarily be the restoration of the rights. It might well be equitable redress. [14] This case differs, in my view, from cases such as Geldenhuys v Kotze 18 and Williams v 16 Ibid at 669G. 17 See Westphal v Schlemmer 1925 (SWA) 127 at 132, per Gutsche J: 18 1964 (2) SA 167 (O). I therefore think that, notwithstanding the fact that in, their primitive sources, the actions arose out of the transaction, the causa agendi in the two suits is different.

7 Shub. 19 In the matter of Geldenhuys v Kotze, two cases were instituted, one in the form of an action and the other in the form of an application. In both cases the cancellation of a certain contract was claimed, with different further relief in each of the separate cases. The court held that both cases are in essence about the cancellation of the contract, and that the plea of lis pendens is appropriate. 20 In the matter of Williams v Shub two actions were instituted against the person alleged to be the farther of a minor child, the one for future maintenance and the other for the arrear maintenance. The Court held that both cases resolve around the issue of paternity, and that the relief claimed in both case flows directly from the decision on paternity. 21 [15] I conclude my finding that the issue of whether the plaintiffs ever had the rights in land which they alleged they had, is not the fundamental causa agendi in both actions. Accordingly, the defence of lis pendens must fail. [16] Even if the requisites of a plea of lis pendens had been met, I would still have had a discretion to allow this action to continue. 22 I would have exercised my discretion by allowing this action to proceed. There are several reasons for this. Firstly, the plaintiffs undertook not to proceed with the action in the Cape High Court until this action had been disposed of. The decision in the matter of Friedrich Kling GmbH v Continental Jewellery Manufacturers; Guthmann and Wittenauer GmbH v Continental Jewellery Manufacturers 23 relates to two actions which were instituted by the same plaintiffs against the same defendants. The plaintiffs undertook to withdraw the prior action and to pay the defendants costs therein if provisional sentence was granted in the later action. This undertaking persuaded Seligson AJ to dismiss the defence of lis pendens and to allow the later action to proceed. The undertaking by plaintiffs in this case not to proceed with their action in the Cape High Court must, in my view, receive similar consideration. [17] Secondly, although it is very difficult to judge prospects of success on the pleadings, it would seem to me that the plaintiffs have considerably stronger prospects of proving in this Court a claim for the restitution of rights which they alleged they were dispossessed of, rather than a claim in the High Court for the enforcement of rights which they allege they still have. 19 1976 (4) SA 567 (C). 20 At 168. 21 At 570E-571A. 22 Osman v Hector 1933 CPD 503 at 508; Loader v Durson Bros (Pty) Ltd supra n 5 at 138-139. 23 1993 (3) SA 76 (C) at 87D-H.

8 [18] Thirdly, the legal provisions under which this Court operates and the circumstances under which it functions, are particularly suitable for adjudicating some of the issues in this case. I refer to the Court s competency to conduct any part of its proceedings on an informal or inquisitorial basis, 24 to accept hearsay evidence 25 and to conduct its hearings at any venue within the Republic. In this particular case, the plaintiffs have indicated that it is of importance to them that at least part of the hearing takes place in the Richtersveld. [19] Fourthly, the essence of a plea of lis pendens, namely that it is oppressive to allow a party to proceed with a second case on issues pending in a prior case, 26 is absent here. The plaintiffs pointed out that a cut-off date of 31 December 1998 applies to restitution claims under the Restitution Act. 27 They instituted their claim a few days before that cut-off date. Had they not instituted the claim, they would have been debarred from doing so in the event of the action in the Cape High Court being unsuccessful. It may be argued, with considerable merit, that if the plaintiffs felt as they did about their claim under the Restitution Act, they should never have brought the action in the High Court. Mr Trengove, for the plaintiffs, argued that in bringing the High Court action, they were acting on advice given to them at the time. If they should now withdraw that action, they may have to reinstitute it in the event of their restitution claim being unsuccessful. In my view, the undertaking not to proceed with the High Court action pending this action, will address any oppression which there might otherwise be. [20] At the end of the day, considerations of convenience and equity must underpin the exercise of any discretion whether or not to allow the defence of lis pendens. 28 The case which is allowed to proceed must not necessarily be the one which was instituted first. 29 The question is whether 24 Section 33(3)(b) of the Restitution Act. 25 Section 30(2)(a) of the Restitution Act. 26 Geldenhuys v Kotze 1964 (2) SA 167 ( ) at 168E. 27 Section 2(1)(e) of the Restitution Act. 28 Loader v Durson Bros (Pty) Ltd 1948 (3) SA 136 (T) at 139; Van As v Appollus and Others 1993 (1) SA 606 (C) at 610F. 29 Van As v Appollus and Others 1993 (1) SA 606 (C) at 610D-E: Die Hof het &n diskresie om te besluit watter van die verrigtinge voortgaan. Hoewel dit seker dikwels sal gebeur dat &n Hof sal besluit dat die lis wat eerste aanhangig gemaak is die een is wat behoort voort te gaan, is dit nie &n onwrikbare reël nie. In Geldenhuys v Kotzé 1964 (2) SA 167 (O), byvoorbeeld, het die Hof op grond van oorwegings van gerief en billikheid toegelaat dat mosieverrigtinge wat ná &n aksie uitgestel is, eerder as die aksie self voorgesit word. Insgelyks is daar in Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T) beslis dat die

9 justice will not be done without the double remedy. 30 In the present case, I am satisfied that the plaintiffs had good reason for bringing the second case. [21] Finally I come to the question of costs. In implementing public interest litigation, this Court usually does not make cost orders, unless special circumstances justifies such cost orders. In my view, none of the parties in this matter acted in a manner which would justify a cost order against them. However, I do not yet have the full picture, and will not have it before the trial. Accordingly, I ordered that costs must stand over for decision at the trail. JUDGE A GILDENHUYS Heard on: 13 September 1999 Handed down: 17 September 1999 For the applicants: Adv W Trengove SC and Adv P Hathorn, instructed by Legal Resources Centre, Cape Town. For the respondents: Adv a Schippers, instructed by E Moosa, Waglay & Petersen, Cape Town. Hof &n diskresie besit om die een of die ander van die verrigtinge te laat voortgaan. Die later ingestelde verrigtinge vir voorlopige vonnis is op grond van billikheidsoorwegings toegelaat om voort te gaan. 30 Wolff N O v Solomon (1898) 15 SC 297 at 307.