Combrinck v Nhlapo

• Jurisdiction: South Africa
• Citation: 2002 (5) SA 611 (LCC)

Combrinck v Nhlapo
2002 (5) SA 611 (LCC)

2002 (5) SA p611

Citation	2002 (5) SA 611 (LCC)
Case No	LCC 115/99
Court	Land Claims Court
Judge	Gildenhuys AJ
Heard	March 4, 2002
Judgment	March 15, 2002
Counsel	A P Brandmüller (attorney) for the applicant.; Defendant in person.

Flynote : Sleutelwoorde B

Land — Land reform — Land Claims Court — Practice — Judgments and orders — Rescission or variation of in terms of s 35(11) of Restitution of Land Rights Act 22 of 1994 — Court dismissing claim for eviction under Land Reform (Labour Tenants) Act 3 of 1996 on ground that defendant perhaps 'occupier' under Extension of Security of Tenure Act 62 of 1997 (ESTA) (first order) — Defences under ESTA not in C issue during trial — Court ordering that matter be re-heard before another Judge on whether defendant 'occupier' under ESTA (second order) — Rule 64(1) of Rules of Land Claims Court allowing rescission or variation of order containing 'ambiguity' or 'patent error or omission' — Court's having fully intended to dismiss claim, though basis for doing so not relating to issue before Court — Accordingly no D 'patent error or omission' resulting in order not reflecting Court's true intention — First order not rectifiable — Second order beyond Court's jurisdiction as it was functus officio after granting first order — Second order void ab initio.

Headnote : Kopnota

The plaintiff issued summons in a magistrate's court for the eviction of the defendant from his (the plaintiff's) farm. The E plaintiff alleged in his particulars before the magistrate's court that the defendant was an 'occupier' as defined in the Extension of Security of Tenure Act 62 of 1997 (ESTA). In his opposing affidavit the defendant denied being an occupier under ESTA, alleging that as a labour tenant he was protected by the Land Reform (Labour Tenants) F Act 3 of 1996. As the magistrate lacked jurisdiction to adjudicate the defendant's plea the matter was transferred to the Land Claims Court. In the latter Court the plaintiff's legal representative concurred that the defendant was not an 'occupier' and that the dispute was thus whether the defendant deserved protection as a 'labour tenant' as intended in Act 3 of 1996. The Court on 29 May 2001 found that the defendant was not a labour tenant or an G associate of a labour tenant and pointed out that it could not on the evidence make an order under ESTA. The Court concluded the judgment by dismissing the plaintiff's claim, apparently because it was under the impression that the defendant deserved protection as an occupier under ESTA. The plaintiff then approached the Court for an order setting aside the order of 29 May 2001 on the ground that the H order dismissing his claim had been based on a patent error. The plaintiff argued that an eviction order should have been granted since (1) the Court had found that the defendant was not a labour tenant and (2) it had been common cause that he was not an occupier. On 28 August 2001 the same Judge heard the application for the setting aside of the first order, and proceeded to make a second order decreeing that the matter had to be re-heard before another Judge on I the question whether the defendant was an 'occupier' as defined in ESTA. The Judge to whom the case was transferred heard argument on two issues, to wit (1) whether the first Judge was competent to make the first order, and if not, (2) what its effect was. The plaintiff's legal representative argued that the first Judge had committed a 'patent error' in relying on the provisions of ESTA for dismissing the J

2002 (5) SA p612

eviction claim and that, in order to rectify this error, the Judge withdrew the dismissal of the claim (albeit by implication), and A ordered a re-hearing on the question of whether or not the defendant was an 'occupier' under ESTA.

Section 35(11) of the Restitution of Land Rights Act 22 of 1994 provides for the rescission or variation of an order made by the Land Claims Court. It provides that the Court may, subject to the Rules made under s 32 'rescind or vary any order made by it . . . which was B void from its inception or was obtained by fraud or mistake common to the parties'. Rule 64 of the Rules of the Land Claims Court provides that 'subject to s 35(11) the Court may suspend, rescind or vary . . . any order, ruling . . . which contains an ambiguity or patent error or omission'. In Firestone South Africa (Pty) Ltd v C Genticuro AG 1977 (4) SA 298 (A) the Court held that the functus officio rule (viz that once a court has pronounced a final order or judgment, it had no jurisdiction to correct, alter or supplement it) did not apply where: (1) an accessory or supplemental matter had been overlooked; (2) the meaning of the judgment or order was obscure, ambiguous or otherwise uncertain; or (3) where a clerical, arithmetical or other error had been committed. In such cases the Court D was entitled to supplement, clarify or correct its judgment so as to give effect to its true intention, provided it did not alter the sense or substance of the judgment or order.

Held, that the Judge a quo's withdrawal of the dismissal of the plaintiff's claim and its order for the re-hearing on the question whether the defendant was an 'occupier' as defined in ESTA did not fall under any of the exceptions to the functus E officio rule set out above. According to the Firestone decision the Court a quo accordingly lacked the requisite jurisdiction to withdraw its order dismissing the eviction claim and to replace it with a different order. The Court a quo had fully intended to dismiss the plaintiff's claim, although it failed to bear in mind that its basis for doing so related to an issue that was not before it. There was thus no 'patent error or omission' that resulted in the order not reflecting the Court a quo's true F intention. (Paragraphs [12] - [13] at 618F/G - 619G/H.)

Held, further, as to the effect of the order re-opening the case, that an order which a court had no authority to make was a nullity. It could be disregarded without the necessity of another order setting it aside. When the Court a quo made the order of 29 May 2001, it became functus officio, and any further G order in the case, except one falling within one of the recognised exceptions, was void. Accordingly the order of 28 August 2001 was void ab initio. (Paregraphs [15] - [16] at 620B - E.)

Held, accordingly, that the present Court had no jurisdiction to proceed with a further hearing of the case. Even if this view was wrong, and the matter were to be proceeded with, the H Court would be proceeding with a partly heard trial, for viva voce evidence had been led before the Court a quo. In the absence of consent between the parties a differently constituted Court was not entitled to continue with a partly heard trial, and where the original Judge could no longer preside, the trial had to commence afresh. The Court accordingly made no order. (Paragraph [17] at 620E/F - G.) I

Cases Considered

Annotations

Reported cases

Dada v Dada 1977 (2) SA 287 (T): dictum at 288C - E applied

Esterhuyze v Khamadi 2001 (1) SA 1024 (LCC): dictum in para [11] applied J

2002 (5) SA p613

Ex parte Women's Legal Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 A (CC): dictum in paras [4] and [5] applied

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A): dictum at 306F - 307H applied

First Consolidated Leasing Corporation v McMullin 1975 (3) SA 606 (T): dictum at 608F applied B

First National Bank of Southern Africa Ltd v Jurgens and Others 1993 (1) SA 245 (W): dictum at 246F - G applied

First National Bank of Southern Africa Ltd v Van Rensburg NO and Others: In re First National Bank of Southern Africa Ltd v Jurgens and Others 1994 (1) SA 677 (T): dictum at 380I doubted

Khuzwayo v Dludla 2001 (1) SA 714 (LCC) ([2000] 4 B All SA 329): dicta in paras [9] and [11] applied C

Mhlanga v Mtenengari and Another 1993 (4) SA 119 (ZS): dictum at 122B applied

Minister of Agricultural Economics and Marketing v Virginia Cheese and Food Co (1941) (Pty) Ltd 1961 (4) SA 415 (T): dictum at 422E - 424H applied

Minister of Justice v Ntuli 1997 (3) SA 772 (CC) (1997 (2) SACR 19; 1997 (6) BCLR 677): dictum in para [22] D applied

Mkhize v Swemmer and Others 1967 (1) SA 186 (D): dictum at 197C - D applied

P Lorillard Co v Rembrandt Tobacco Co (Overseas) Ltd 1967 (4) SA 353 (T): dictum at 355A - C applied

Samuel and Others v Seedat 1949 (3) SA 984 (N): dictum at 987 applied E

Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C): dictum at 541C - D applied

Skhosana and Others v Roos t/a Roos se Oord and Others 2000 (4) SA 561 (LCC) ([1999] 2 B All SA 622): dictum in para [27] applied

Sliom v Wallach's Printing and Publishing Co Ltd 1925 TPD 650: dictum at 656 applied F

Tödt v Ipser 1993 (3) SA 577 (A): dictum at 589C - G applied

Transvaal Canoe Union v Butgereit and Another 1990 (3) SA 398 (T): dictum at 403E - I applied.

Rules Considered

Rules of Court

The Rules of the Land Claims Court, Rule 64. G

Statutes Considered

Statutes

The Extension of Security of Tenure Act 62 of 1997, s 1 sv 'occupier': see Juta's Statutes of South Africa 2001 vol 6 at 2-453

The Land Reform (Labour Tenants) Act 3 of 1996, s 1 sv 'labour tenant': see Juta's Statutes of South Africa 2001 vol 6 at 2-500 H

The Restitution of Land Rights Act 22 of 1994, s 35(11): see Juta's Statutes of South Africa 2001 vol 6 at 2-380.

Case Information

Re-hearing of an application for eviction. The facts appear from the reasons for judgment. I

A P Brandmüller (attorney) for the applicant.

Defendant in person.

Cur adv vult.

Postea (March 15). J

2002 (5) SA p614

Judgment

Gildenhuys AJ: A

History of the proceedings

[1] The plaintiff in this...