United African Apostolic Church and Others v Mureri and Others (750/2019) [2020] ZALMPTHC 10 (15 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

CASE NUMBER: 750/2019

UNITED AFRICAN APOSTOLIC CHURCH

And OTHERS

APPLICANTS

AND

MURERI ALILWEI DAVID and OTHERS RESPONDENTS

VARIATION ORDER IN TERMS OF RULE 42(1) (b)

AML PHATUDI J

[1] This is a variation order envisaged in terms of Rule 42(1) (b) of the Uniform Rules of the High Court relating to the judgment I handed down on 11 June 2020 upholding most of the Applicants’ claims as set out in the notice of motion with costs.

[2] I, on 15 June 2020, noted some errors that slipped through in the orders I handed down that I deem it necessary to vary such orders in terms of Rule 42 (1) (b) of the Uniform Rules of this court. The Rule provides that the court may, in addition to any other powers it may have, mero motu rescind or vary an order in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission[1].

[3] I am mindful of an established principle in our law that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. There are, however, few exceptions to that rule. The court may vary the order only to the extent of an error or omission committed in the order. Among other exception is that ‘the court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention.’[2] (See Firestone South Africa (Pty) LTD v Genticuro A.G. 1977 (4) SA 298 at 307C-G)

[4] Clerical mistakes occurred in orders 3, 4 and 6 of the main judgment. Order number 3 (three) reads- The appointment of Chief Livhuwani Matsila is declared invalid and is set aside- instead of- ‘the appointment of Chief Livhuwani Matsila as the chairperson of the first applicant is declared invalid and is set aside. The words “as the chairperson of the first applicant” were erroneously omitted when typing the order. I, in fact, intended to give effect to the prayer sought in the notice of motion. The prayer sought stipulates:

1.2 That the alleged appointment of Chief Livhuwani Matsila as the chairperson of the first applicant be found to be illegal and /or unlawful and or unconstitutional and / or a nullity and / or null and void ab initio and / or invalid and / or invalid and/ or be declared to be as such.

[5] The forth (4th) order suffer similar clerical error. The error is in relation to the date. The order reflects the date “as at 22 December 2019” instead of 22 December 2018. Another clerical error is at the sixth (6th) order. I ordered- ‘David Ailwei Mureri is interdicted from caring out and / or threatening to carry out and / or instigating any act of violence against the 2nd, 3rd, 4th , 5th , 8th, 9th and 10th applicants and any other member of UAAC either directly or indirectly, personally or through other person(s), by any means. I spelt the word “caring” wrongly instead of “carrying”.

[6] I am thus of the view that the clerical errors alluded to falls within the exception I mentioned earlier and such orders falls to be varied mero motu.

[7] I, in the result, make the following order.

Order

1. The 3rd order in the main judgment is hereby varied and replaced with the following:

‘3. The appointment of Chief Livhuwani Matsila as the chairperson of the first applicant is declared invalid and is set aside.

2. The 4th order in the main judgment is hereby varied and replaced with the following:

“4. Chief Matsila Livhuwani, David Ailwei Mureri, Mureri royal council and the UAAC new national executive committee and all members thereof, are interdicted directly or indirectly, personally or through other person(s), from interfering with and/or disrupting the administration and management of the UAAC, which were in existent as at 22 December 2018.

3. The 6th order in the main judgment is hereby varied and replaced with the following:

“6. David Ailwei Mureri is interdicted from carrying out and / or threatening to carry out and / or instigating any act of violence against the 2nd, 3rd, 4th , 5th , 8th, 9th and 10th applicants and any other member of UAAC either directly or indirectly, personally or through other person(s), by any means.

AML PHATUDI

JUDGE OF THE HIGH COURT

Handed Down Electronically: 15 June 2020

For applicants:

VM Netshipale Attorneys:

Mr. VM Netshipale

For Respondents:

Kern and Dekker Inc:

Adv. Dali Mpofu S.C

Adv. RC Mathebula

Applicants’ email:

netshipaleattorney@webmail.co.za

vmnetshipale@gmail.com

Respondents:

kern@kdlaw.co.za

[1] Rule 42 (1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary: (a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; (b) 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; (c) an order or judgment granted as the result of a mistake common to the parties.

[1] Rule 42 (1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

(b) 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;

(c) an order or judgment granted as the result of a mistake common to the parties.

[2] Firestone South Africa (Pty) LTD v Genticuro A.G. 1977 (4) SA 298 AD at 307C-G) (i) The principal judgement or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgement debt, which the court overlooked or inadvertently omitted to grant. (ii) The court may clarify its judgement or order, If, on proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provide it does not thereby alter “ the sense and substance” of the judgement 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. (iv) Where counsel has argued the merits and not costs of a case (which nowadays often happens since the question of costs may depend upon the ultimate decision on the merits), but the court, in granting judgement, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.

[2] Firestone South Africa (Pty) LTD v Genticuro A.G. 1977 (4) SA 298 AD at 307C-G)

(i) The principal judgement or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgement debt, which the court overlooked or inadvertently omitted to grant.

(ii) The court may clarify its judgement or order, If, on proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provide it does not thereby alter “ the sense and substance” of the judgement 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.

(iv) Where counsel has argued the merits and not costs of a case (which nowadays often happens since the question of costs may depend upon the ultimate decision on the merits), but the court, in granting judgement, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.