Khumalo and Others v ERF 507 Charles Street (Pty) Ltd and Others (LCC 232/2009) [2009] ZALCC 14 (8 November 2009)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

IN RANDBURG

DECIDED ON: 8 November 2009

CASE NUMBER: LCC232/2009

In the matter between:

MZIKAYIFANI KHUMALO First Applicant

MFANISENI JAMESON NZIMA Second Applicant

MBHEKISENI KHUMALO Third Applicant

and

ERF 507 CHARLES STREET (PTY) LTD First Respondent

THE SHERIFF FOR THE

DISTRICT

PAULPIETERSBURG Second Respondent

THE DIRECTOR GENERAL

FOR THE

DEPARTMENT OF LAND AFFAIRS Third Respondent

JUDGEMENT

MIA A J:

[1] The matter came before me on 11 November 2009 on an urgent basis requesting condonation for non compliance with the rules, and a rule nisi be issued staying the warrant of eviction granted, pending the outcome of an application brought in terms of Section 33(2) (A) of the Land Reform (Labour Tenants) Act No.3 of 1996, brought by the Applicants in this Honourable Court. Further that First Respondent be interdicted from threatening, interfering, intimidating or otherwise communicating with the Applicants. The First, Second and Third Respondents be and are hereby ordered to pay costs of this application but only in the event of them opposing this application, and that the order operate as an interim interdict.

BACKGROUND

[2] Upon receiving the application, directions were issued herein and the matter was heard on 30 November 2009. The nature of the relief requested was intended to interdict the Respondents from giving effect to a warrant of eviction of this Court. The brief history resulting in the above application as determined from the papers arises from an application for eviction which commenced in the Magistrates Court, Utrecht. In view of the Applicants raising the defence that they were labour tenants, the matter was transferred to the Land Claims Court. The matter was heard by Bam JP and an order for eviction was granted by consent between the parties on 6 August 2007. The Applicants did not vacate the property and a warrant of eviction was granted on 22 May 2008.

[3] On 22 August 2008 the Applicants brought an application to rescind the order granted on 6 August 2007. This application was not successful.

An application for condonation and leave to appeal was brought before Gildenhuys J. This application was heard on 29 July 2009.

Upon hearing the applications for condonation and leave to appeal both applications were dismissed and the staying of the execution of the warrant of eviction was extended until five days after the reasons were given for the dismissal of the applications to afford the Applicant the opportunity to petition the Supreme Court of South Africa for relief. There appears to be no indication that this option was considered or followed from the affidavit filed herein.

[4] The present application is brought in an attempt to stay the warrant of eviction and to prevent the Applicants from having to vacate the farm. They also do not wish to be relocated to another portion of land as agreed to in the settlement agreement averring that they wish their claim in regard to the land they are occupying to be determined and to be granted the same land on which they currently reside in the pending application before Carelse J in this court.

[5] The Applicants rely on section 14 of Act 3 of 1997 to retain their occupation on the farm in question. The relevant section reads as follows:

[doja3y1996s14] 14 Eviction pending application for acquisition of rights in land No labour tenant may be evicted while an application by him or her in terms of Chapter III is pending: Provided that the Court may order eviction if it is satisfied that special circumstances exist which make it fair, just and equitable to do so, taking all the circumstances into account.

[6] Having regard to the judgement in the application for rescission, the Court noted that the defence which was found to be unarguable was not that the Applicants were labour tenants but that they had lodged their claim timeously. There was no evidence before the Court per Bam JP. The matter was considered again by Gildenhuys J. unsuccessfully. In Mzikayifani Khumalo and 2 others v The Minister of Rural Development and Land Reform and others LCC141/2009 ( an unreported judgement) Gildenhuys J refers at paragraph 12 to the approach in Florence v Florence 1948 (3) SA 71 (D) at 73-74 where Broome J (as he then was ) stated as follows:

“I cannot assent to the proposition that the court has the power to rescind a judgement on the mere ground that the party who obtained the judgement was under a misapprehension as to the true facts. The general rule is that the court cannot alter an order once duly made and accurately drawn up… I feel that I am obliged to hold that the court has no power to rescind a judgement or order, which it has made on the invitation of the party seeking to rescind it, on the ground that the invitation was made under a misapprehension or the true facts… the public interest requires that the courts’ orders and judgement should be certain and final. Once pronounced they can only be opened on certain narrow grounds…”

[7] At paragraph 13 Gildenhuys J refers the dictum of Caney AJ ( as he then was) in Joseph v Joseph 1951 (3) SA 776 (N) at 780 E-G where the learned judge said:

“ If a litigant by a mistake of himself or his legal advisors abandons relief to which he is or may be entitled, the court has no jurisdiction or power to re-call or amend the order it has in consequence deliberately made, in the absence of fraud of the other party…”

[8] The Applicants have placed none of the recognized grounds before us to obtain the relief requested. They have had the opportunity to petition the Supreme Court of Appeal which would have the effect of staying the warrant of eviction and have not done so. As previously noted by Gildenhuys J the Applicants institute some kind of action each time the writ of eviction is about to be executed to delay giving effect to the order granted on 6 August 2007. On the papers before me I find I can make no order but to dismiss the application.

[9] Turning to the question of costs, I have considered the merit of the Applicant’s case, the long history of this matter as well as Mr. Rall’s argument for a cost order de bonis propriis. The Land Claims Court has a wide discretion when dealing with requests for costs1 and has regard to the particular nature of matters pursued in this Court. I have considered the consequences of an adverse costs order on the Applicants herein who are assisted by a legal representative at the expense of the State. The reason for not granting costs orders in this Court is clear as expressed by Meer J in Van Zuydam v Zulu [1999] 2 All SA 100 (LCC) at 112 paragraph 43 as follows:

“The Land Claims Court has a wide discretion in dealing with costs.18 I am of the view that the discretion granted to me to make such order for costs as I deem just would be properly exercised if no order for costs is granted. Two factors in particular influence my decision, namely the deterrent effect of an adverse cost order to indigent litigants and the public interest nature of litigation under the Labour Tenants Act.”

[10] The dicta of Dodson J in Hlatshwayo and others v Hein at 642c:

are particularly apt in the present case:

“[T]he the risk of an adverse costs order might deter legitimate litigants from approaching the Court, thereby undermining the entire object of the Act. The Court can in my view take judicial notice of the fact that most rural black people have, by reason of a barrage of discriminatory laws applied to them over the years, in most instances been prevented from accumulating any substantial wealth. Given the current costs of litigation, potential Applicants will always be faced with the risk of losing what few capital assets they might have managed to accumulate when approaching the court if the ‘costs follow the result’ rule is generally applied. Those assets may be their sole means of pursuing a livelihood, such as livestock or farming equipment.”

and at 643a:

“The Act was passed specifically to deal with the legitimate demands for remedial action to deal with past, large-scale breaches of the human rights of a class of rural, black people. In my view that places this matter squarely in the sphere of public interest litigation, notwithstanding that the parties to litigation under the Act will usually be private persons.”

[11] The present application being in the nature of public interest litigation falls under the category where costs orders are not ordinarily awarded. Whilst I am mindful that the Applicants may be indigent, in the event that they continue approaching this Court in the manner they have done to date where it appears that they are “clutching at straw”, they may find a costs order being granted against them.

[12] With regard to costs against the attorney, the view of Meer J in Motlhaudi and another v Roussouw and others [2001] 4 ALL SA 334 (LCC), that a legal representative not be penalized where he or she believed they were acting in their client’s best interest and was not acting out of malice or negligence, has particular application in the present case. The above rationale is applicable in that legal representatives ought not to be dissuaded from pursuing their client’s rights for fear of a cost order. I do not find that the present attorneys acted with malice or were vexatious. It is possible that they genuinely believed there was relief to be had. In the circumstances I do not deem a cost order de boni proriis appropriate in the present case.

The following order is made:

[12] In light of the above considerations the following order is made:

1 The urgent application lodged on 27 November 2009 under case number LCC232/2009 is dismissed in its entirety.

2 There is no order as to costs.

SC Mia

_______

Acting Judge

LAND CLAIMS COURT

_____

I agree

Advocate G. Malindi

APPEARANCES

For the Applicants

Advocate Moosa Instructed by CM Sardiwalla Attorneys

Durban

For the Respondent

Advocate Rall Instructed by Cox & Vennote Partners

Vryheid

1 See section 35(2) (g) of the Restitution of Land Rights Act 22 of 1994.

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