Tshivhase Royal Council and Another v Tshivase and Another, Tshivase and Another v Tshivase and Another (98/89, 171/91) [1992] ZASCA 185; 1992 (4) SA 852 (AD); [1992] 2 All SA 511 (A) (28 September 1992)

Tshivhase Royal Council and Another v Tshivase and Another, Tshivase and Another v Tshivase and Another (98/89, 171/91) [1992] ZASCA 185; 1992 (4) SA 852 (AD); [1992] 2 All SA 511 (A) (28 September 1992)

The Supreme Court of Appeal found that both parties laboured under a fundamental mistake regarding the Khoro ya Mahosi's decision, believing it had recommended John as chief when it had in fact referred the dispute to the Royal Family. This mistake was causative of the first judgment, which confirmed John's appointment. The evidence supporting the true decision was overwhelming and uncontested. The requirements of Rule 42(1)(c) were satisfied: there was a mistake common to the parties, and the judgment was granted as a result of that mistake. Procedural irregularities in the appeal process, though serious, did not justify refusal of condonation due to the absence of prejudice, the...

Citation
[1992] ZASCA 185
Parties
Appellant: Tshivhase Royal Council; Appellant: Kennedy Tshivhase; Appellant: Gilbert Ligege; Respondent: John Shavhani Tshivhase; Respondent: Tshivhase Local Council
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 1992
Case Number
98/89, 171/91
Procedural Posture
Civil Appeal / Appeal From Judgments of the Venda Supreme Court, Including an Application for Rescission and Related Condonation Applications.
Outcome
Second appeal upheld; first judgment rescinded; applications for condonation granted; first appeal rendered moot.
Judges
Botha, Nestadt, Nienaber, Nicholas, Kriegler
Legal Topics
Chieftainship Dispute, Rescission of Judgment, Common Mistake, Tribal Custom, Condonation of Procedural Irregularities
Civil Procedure Land and Property Chieftainship Dispute Rescission of Judgment Common Mistake Tribal Custom Condonation of Procedural Irregularities

Case Brief

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Parties

Tshivhase Royal Council

Appellant

Kennedy Tshivhase

Appellant

Gilbert Ligege

Appellant

John Shavhani Tshivhase

Respondent

Tshivhase Local Council

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgments of the Venda Supreme Court, Including an Application for Rescission and Related Condonation Applications.

Legal Issues

  1. 1 Whether the first judgment confirming the appointment of John as chief was granted as a result of a mistake common to the parties.
  2. 2 Whether the application for rescission under Rule 42(1)(c) should be granted.
  3. 3 Whether procedural irregularities in the appeal process should be condoned.

Ratio Decidendi

The Supreme Court of Appeal found that both parties laboured under a fundamental mistake regarding the Khoro ya Mahosi's decision, believing it had recommended John as chief when it had in fact referred the dispute to the Royal Family. This mistake was causative of the first judgment, which confirmed John's appointment. The evidence supporting the true decision was overwhelming and uncontested. The requirements of Rule 42(1)(c) were satisfied: there was a mistake common to the parties, and the judgment was granted as a result of that mistake. Procedural irregularities in the appeal process, though serious, did not justify refusal of condonation due to the absence of prejudice, the...

Court Disposition

Second appeal upheld; first judgment rescinded; applications for condonation granted; first appeal rendered moot.

Orders

  • No order is made on the first appeal itself.
  • Appellants to pay costs of applications for condonation in the first appeal, including fees of two counsel.