Moraliswani v Mamili

• Jurisdiction: South Africa
• Judge: Hoexter JA, Hefer JA, Grosskopf JA, Milne JA and Eksteen JA
• Judgment Date: 17 May 1989
• Citation: 1989 (4) SA 1 (A)
• Hearing Date: 03 May 1989
• Court: Appellate Division

Grosskopf JA:

The petitioner's application for condonation of the late furnishing of security for the respondent's costs of appeal was dismissed with costs on 3 May 1989, and we intimated that the B Court's reasons would be furnished later. These reasons now follow.

The petitioner is the chief of the Basubia tribe in the Caprivi Zipfel in South West Africa. He was the plaintiff in an action in the Supreme Court of South West Africa in which he claimed the following substantive relief:

'A declaratory order declarin

1.1

C The plaintiff is the "Munitenge", being the Supreme Chief of the tribes and inhabitants of the Caprivi Zipfel.

1.2

The plaintiff be regarded as the owner and/or custodian and/or controller of all communal land in the Caprivi Zipfel.'

The particulars of claim are dated 18 April 1983.

The defendant, who was the chief of the Mafwe tribe in the D Caprivi Zipfel, contested the action and asked in his plea that the plaintiff's claims be dismissed with costs. In addition he counterclaimed for an order declaring, inter alia,

(a)

that a demarcation line existed between the areas of authority of the plaintiff and the defendant, consisting of a series of straight lines between certain beacons, and E

(b)

that the defendant was entitled to exercise exclusive authority in the area lying east of the Kavango river of that part of the territory of South West Africa known as the Caprivi Zipfel, and west of the demarcation line referred to in (a) above.

For convenience I shall continue referring to the parties as F plaintiff and defendant respectively.

After close of pleadings the matter was set down for trial on 5 March 1985. On that date the parties, by agreement, requested the Court to decide the following issue in limine 'as if on exception':

'Inasmuch as it is agreed that:

(a)

the plaintiff has not been appointed or recognised as chief or headman of the Mafwe tribe in terms of the relevant legislation;

(b)

neither the plaintiff nor any other person has been appointed or recognised as "Munitenge" or Supreme Chief in terms of the said legislation;

(c)

no tribal boundary has been defined in terms of the said H legislation in respect of either the Basubia or Mafwe tribe,

can this honourable Court grant the relief sought by the plaintiff in the event of his establishing that he is the "Munitenge" of the said tribes, and of the other inhabitants of the Caprivi, in the sense set out in the particulars of claim (as amplified by the further I particulars thereto), and the owner and/or custodian and/or controller of all communal land in the Caprivi in terms of the customary laws and traditions of the inhabitants of the Caprivi?'

The Court (Strydom J) agreed to decide this point in limine, and the point was then argued on the basis of the pleadings and certain agreed historical facts. The Court was also provided with a bundle J of legislation

Grosskopf JA

A applying to the Caprivi Zipfel which, for reasons on which I need not elaborate, is rather involved. On 12 June 1985 Strydom J, in a well-reasoned judgment, decided the point in limine as follows:

'(a)

Defendant's exception against the plaintiff's claim to be declared the Supreme Chief of the tribes and inhabitants of the Caprivi is upheld. B

(b)

Defendant's exception against the plaintiff's claim to be declared as the owner and/or custodian and/or controller of all communal land in the Caprivi Zipfel is dismissed.

(c)

Plaintiff is ordered to pay 60% of the defendant's costs of exception. C

(d)

Plaintiff is given leave to amend his pleadings, if so advised, within 14 days.'

This order did not, of course, dispose of all the matters in dispute between the parties. Although an important issue was decided, others D were still unresolved and would in the normal course have been determined at the trial. However, the plaintiff applied for leave to appeal to the Appellate Division against orders (a) and (c) and this was granted on 12 November 1985. A notice of appeal was lodged on 25 November 1985. Although this notice purported to apply to the 'whole of the judgment and orders (including the order as to costs)' nothing turns on this inaccuracy.

The next step which should have been taken by the plaintiff in E the prosecution of his appeal was the entering into of 'good and sufficient security for the respondent's costs of appeal' pursuant to Appellate Division Rule of Court 6(2). This was to be done before lodging with the Registrar copies of the record. The period within which the record had to be lodged depended on whether the order appealed F against 'was given on an exception' within the meaning of Appellate Division Rule of Court 5(4)(a). If it was so given, the period was six weeks after the date of the order granting leave to appeal; if not, the period was three months. Security should therefore, at best for the plaintiff, have been given by 12 February 1986. However, the plaintiff's G attorney, Mr H F E Ruppel of the firm of Lorentz & Bone, Windhoek, was under the impression that security for a respondent's costs in an appeal had to be entered into only in the event of a Court's order to that effect. This was a common misapprehension prior to the decision of this Court in Klipriviersoog Properties (Edms) Bpk v Gemeenskapsontwikkelingsraad 1987 (2) SA 117 (A). See the Klipriviersoog H case at 122G - I and Salandia (Pty) Ltd v Vredenburg-Saldanha Municipality 1988 (1) SA 523 (A) at 531A - E. Mr Ruppel consequently proceeded to prepare and file the record of the proceedings without having furnished security. Eventually the matter was set down for hearing in this Court as an appeal on 20 February 1987.

Judgment in the Klipriviersoog case was delivered on 10 November I 1986. On 30 December 1986 the defendant's Bloemfontein attorneys sent a letter to the plaintiff's Bloemfontein attorneys concerning security for the defendant's costs of appeal. This letter, after referring to the judgment in the Klipriviersoog case, recorded that the plaintiff had made no provision for security for costs and stated that the defendant's Windhoek attorneys had given instructions that their client would J under no circumstances

Grosskopf JA

A condone or waive any of his rights to security. Mr Ruppel received a copy of this letter, under cover of a letter from his Bloemfontein correspondents, on 8 January 1987.

From that date he was aware that security should have been provided, and I assume that he knew, as a glance at the Rules of Court would have informed him, that this should have been done, at best for...