Biyela and another v Dhludhla Brothers CC and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Meer AJP
• Judgment Date: 06 March 2023
• Docket Number: LCC 107/2017
• Hearing Date: 06 March 2023
• Court: Land Claims Court

Meer AJP:

[1]

The Applicants seeks an order compelling the First Respondent to appoint a land surveyor in terms of an order of this Court dated 18 February 2020 which was granted by consent between the parties to this application. The 2020 order emanated from the First Respondent's non-compliance with a previous order dated 15 May 2017 also granted by consent between the parties. That order recorded the First Respondent's consent to identify, allocate and demarcate 74 hectares of land for use by the Applicants. Thereafter on 13 March 2020 the First Respondent stated it was unwilling to part with 74 hectares of land notwithstanding its consent to do so in the first and second orders.

[2]

In opposition to this application the First Respondent raises 3 points in limine and also asserts that the transfer of ownership of land would be unnecessarily hard, unreasonable, unjustified and would lead to an injustice. There is no explanation as to why there is a consent order doing exactly that. This latter argument cannot be

2023 JDR 1056 p4

Meer AJP

entertained given the clear, unambiguous meaning of both the orders and the fact that the First Respondent consented to them.

[3]

The points in limine in summary are that the Applicants failed to lodge a timeous application in terms of section 16(1) of the Labour Tenants Act No. 3 of 1996, the Court has not finally determined Applicants' right to an award in land and the First Respondent has always disputed that the Applicants were labour tenants. None of these have any bearing on the court order granted by consent. The order of 18 February 2020 is not contingent upon any of the issues raised in the points in limine. It was open to the parties to enter into an agreement by consent regardless of any of the matters raised in the points in limine. The First Respondent does not explain why it entered into the consent agreement if these factors prevented such an agreement by consent. Nor is its change of mind explained.

[4]

It is trite that an order of court is binding and enforceable unless it is set aside by a court of competent jurisdiction. This can be done on appeal, review or a successful rescission application in this Court in terms of Rule 64. In Secretary of Judicial Commission of Enquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others 2021 (9) BCLR 992 (CC)at paragraph 59 it was said an order of a court of...