Mgema and Others v Potgieter (LCC199/2010) [2014] ZALCC 2 (7 April 2014)

Mgema and Others v Potgieter (LCC199/2010) [2014] ZALCC 2 (7 April 2014)

The court held that the applicants' application for variation was not competent because the judgment of Sidlova AJ was final, clear, and unambiguous, and did not contain a patent error or ambiguity that would justify variation. The applicants were in effect seeking to challenge the reasoning behind the order, which is not permissible; only the order itself may be clarified if ambiguous. The procedural irregularities by the respondent were condoned as they did not cause prejudice to the applicants. Condonation for the late filing of the application was granted, but the substantive relief was refused as the court lacked jurisdiction to reconsider a final judgment that is res judicata.

Citation
[2014] ZALCC 2
Parties
Applicant: Mgema; Applicant: Xolani Mntwapi; Applicant: Pheliwe Mgema; Applicant: Nokuku Mgema; Applicant: Nomhlophe Mgema; Applicant: Wedridge Mgema; Applicant: Ngxeke Mgema; Applicant: Ntombizanele Mgema; Applicant: Xolisa Mgema; Applicant: Zuzile Mgema; Applicant: Zanele Mgema; Respondent: Marius Potgieter
Court
Land Claims Court
Jurisdiction
South Africa
Judgment Date
7 April 2014
Case Number
LCC199/2010
Procedural Posture
Variation Application / Application for Variation of Judgment and Condonation
Outcome
Application dismissed; no order as to costs.
Judges
Canca
Legal Topics
Extension of Security of Tenure Act, Variation of Judgment, Condonation, Finality of Orders
Land and Property Civil Procedure Extension of Security of Tenure Act Variation of Judgment Condonation Finality of Orders

Case Brief

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Parties

Mgema

Applicant

Xolani Mntwapi

Applicant

Pheliwe Mgema

Applicant

Nokuku Mgema

Applicant

Nomhlophe Mgema

Applicant

Wedridge Mgema

Applicant

Ngxeke Mgema

Applicant

Ntombizanele Mgema

Applicant

Xolisa Mgema

Applicant

Zuzile Mgema

Applicant

Zanele Mgema

Applicant

Marius Potgieter

Respondent

Procedural Posture

Variation Application / Application for Variation of Judgment and Condonation

Legal Issues

  1. 1 Whether the applicants are entitled to a variation of Sidlova AJ's judgment on the basis of alleged patent error or ambiguity.
  2. 2 Whether the respondent's procedural non-compliance should bar participation in the proceedings.
  3. 3 Whether condonation for the late filing of the variation application should be granted.

Ratio Decidendi

The court held that the applicants' application for variation was not competent because the judgment of Sidlova AJ was final, clear, and unambiguous, and did not contain a patent error or ambiguity that would justify variation. The applicants were in effect seeking to challenge the reasoning behind the order, which is not permissible; only the order itself may be clarified if ambiguous. The procedural irregularities by the respondent were condoned as they did not cause prejudice to the applicants. Condonation for the late filing of the application was granted, but the substantive relief was refused as the court lacked jurisdiction to reconsider a final judgment that is res judicata.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There shall be no order as to costs.