Bafokeng Tribe v Impala Platinum Ltd and Others

• Jurisdiction: South Africa

Bafokeng Tribe v Impala Platinum Ltd and Others
1999 (3) SA 517 (BH)

1999 (3) SA p517

Citation	1999 (3) SA 517 (BH)
Case No	1716/95
Court	Bophuthatswana High Court
Judge	Friedman JP
Heard	August 11, 1998; August 14, 1998; August 17, 1998; August 18, 1998
Judgment	September 17, 1998
Counsel	CDA Loxton (with him DM Antrobus) for the plaintiff/applicant; M Tselentis (with him CHJ Badenhorst, FJ Bashall and T Plewman) for the first defendant/first respondent

Flynote : Sleutelwoorde

Estoppel — Res judicata — Requirements for — Essentials of exceptio res judicata are threefold: previous judgment has been given in action or application by competent court (1) between same parties, (2) based on same cause of action (ex eadem petendi causa), (3) with respect to same subject-matter or thing (de C eadem re) — Requirements (2) and (3) not immutable requirements of res judicata — Subject-matter claimed in two relevant actions does not necessarily and in all circumstances have to be same — Necessary that essentials of threefold test be applied where there is likelihood of litigant being denied access to courts in second D action — Conversely, in order to ensure overall fairness, (2) or (3) may be relaxed.

Estoppel — Res judicata — Issue estoppel — Requirements for — Doctrine of issue estoppel has following requirements (a) where court in final judgment on cause has determined issue involved in cause of action in certain way, (b) if E same issue again involved, and right to reclaim depends on that issue, determination in (a) may be advanced as estoppel in later action between same parties, even if later action founded on dissimilar cause of action — Issue estoppel is rule of res judicata but distinguished from Roman-Dutch law exception, in that in issue estoppel requirement that same subject-matter or thing has to be claimed in F subsequent action not required — Issue estoppel has twofold requirement.

Trust and trustee — Trustee — Plaintiff prevented by previous racial policy from registering ownership of land in its own name — Government functionary holding land as trustee — Trustee failing to take action on behalf of trust which would place him in position of conflict of interest — Beningfield exception applicable — Plaintiff G (beneficiaries of trust) given locus standi — Previous state of affairs offending against spirit of the Constitution of the Republic of South Africa Act 108 of 1996 — Such being compelling reason why standing of litigants extended by provisions of Constitution — Constitutional provisions making it imperative and just that plaintiff be accorded locus standi to bring and proceed with action. H

Headnote : Kopnota

The plaintiff had purchased certain land during the late 19th and early 20th centuries. Due to a practice followed by the Registrar of Deeds, it had not been possible for the plaintiff to have the land registered in its name. The land had accordingly been registered in the names of two missionaries, who held the land nominally on behalf of the plaintiff. In 1907 the land was transferred to another nominee, the I Minister of Native Affairs of the then Transvaal, in trust for the plaintiff, according to the practice then applicable by reason of the prevailing racial policy of the government. The land was subsequently held by various government functionaries in the same capacity. In 1977 a mining lease was granted to the relevant Minister who held the land in his capacity as trustee of the plaintiff. The mining lease was J

1999 (3) SA p518

ceded A to the first defendant. During 1988 the plaintiff had unsuccessfully applied for an order declaring that the cession had been cancelled. The plaintiff was unable to appeal against the judgment due to factors beyond its control, as well as interference with the affairs of the plaintiff by M, the President of the then Republic of Bophuthatswana, who was also the then trustee of the plaintiff. The plaintiff had B instituted an action for an order, inter alia, declaring invalid the registration of the land in the name of M, declaring void the mining lease, the cession of the lease and amendments to the lease. In response thereto the first defendant raised several special pleas relating to the locus standi of the plaintiff and averring that the matters raised by the plaintiff were res judicata. After further pleadings had been exchanged the plaintiff sought to C amend (i) its particulars of claim to allege, in an alternative, that the land had vested in the plaintiff, even though it was heldin the name of government functionaries (the bewind amendment); (ii) its particulars of claim to include an alternative averment that the plaintiff had locus standi, as the fourth defendant, who was the trustee at the time that the action was instituted, was not able to act as trustee for the plaintiff due to a conflict of interest between his position as trustee and as Minister of D Land Affairs, who may have been liable to the first defendant should the plaintiff be successful in its action (the locus standi amendment); and (iii) a replication it had filed in reply to the first defendant's plea of res judicata (the res judicata amendment). The first defendant objected to the amendments on the grounds, inter alia, that they would render the pleadings excipiable. The objection to the bewind amendment was that the allegations were in conflict with the express provisions of the deeds of transfer relating to the land BHC E

Held, that there were no 'inherent ambiguities' in the affected deeds of transfer. No facts had been placed before the Court relating to a bewind trust, except the legal principles relating thereto. It appeared from the affected deeds of transfer that the dominium of the Bafokeng land vested in the various government officials whose names appeared thereon in trust for the tribe. What was involved was an ordinary trust in terms whereof the F trustee and not the beneficiary had the dominium of the land. As there was no application for rectification before the Court, the application to include the bewind amendment in the particulars of claim had to fail, in that to grant it would have resulted in that aspect of the particulars of claim being excipiable. (At 545D - F.)

Held, further, that the fourth defendant could not be G designated as a delinquent or impeachable trustee. Whether he had made common cause with the first defendant at some stage before he withdrew was not decisive. What was beyond question was that he was a 'defaulting' trustee in the sense that he 'lacked' or 'neglected' to take action on behalf of the tribe, maybe for cogent reasons, which would place him in a position of 'potential conflict' if he acted on behalf of the tribe. His intention was clear; he was not acting on H behalf of the tribe but had adopted a passive posture awaiting the decision of the Court. It was beyond cavil that the trustee of the tribe was reluctant to act on its behalf. The practical effect of the immobility of the trustee in this respect was no different from that where, because of delinquency or impeachability, the trustee was precluded from acting on behalf of the trust. The direction and I dictates of justice required that the common-law principle of the so-called Beningfield exception be applied in the case under consideration and that the plaintiff be given locus standi in the action which it had instituted against the first and other defendants. (At 549A - C and 549D/E - E.)

Held, further, that because of the incidence of 'registration' and 'trusteeship' the plaintiff could not have the land that it had purchased registered in its own J

1999 (3) SA p519

name, and by law a A trustee, being a government functionary, had been appointed to hold dominium over its land and also to administer it. That state of affairs offended against the spirit of the Constitution of the Republic of South Africa Act 108 of 1996 and was a compelling reason why the standing of litigants was extended by the provisions of the Constitution. In addition to applying the Beningfield exception, the constitutional provisions made it imperative and just that the plaintiff be accorded locus standi to bring and B proceed with the action. The application for the locus standi amendment granted. (At 550H/I - J.)

Held, further, the essentials of the exceptio res judicata were threefold, namely that the previous judgment had been 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 C to the same subject-matter, or thing (de eadem re). Requirements (2) and (3) were not immutable requirements of res judicata. The subject-matter claimed in the two relevant actions did not necessarily and in all circumstances have to have been the same. Where there was a likelihood of a litigant being denied access to the courts in a second action, to prevent injustice it was necessary that the said essentials of the threefold test be applied. Conversely, in order to ensure overall fairness, (2) D or (3) above might be relaxed. (At 566B - D/E.)

Held, further, that a court had to have regard to the object of the exceptio res judicata, namely that it had been introduced with the endeavour of putting a limit to needless litigation and in order to prevent the recapitulation of the same thing in dispute in diverse actions, with the concomitant deleterious effect of conflicting and contradictory decisions. (At 566D/E - E/F.) E

Held, further, that the doctrine of issue estoppel had the following requirements: (a) where a court in a final judgment on a cause had determined an issue involved in the cause of action in a certain way, (b) if the same issue was again involved and the right to reclaim depended on that issue, the determination...