Tshivhase Royal Council and Another v Tshivhase and Another; Tshivhase and Another v Tshivhase and Another

• Jurisdiction: South Africa

Tshivhase Royal Council and Another v Tshivhase and Another;
Tshivhase and Another v Tshivhase and Another
1992 (4) SA 852 (A)

1992 (4) SA p852

Citation	1992 (4) SA 852 (A)
Court	Appellate Division
Judge	Botha JA, Nestadt JA, Nienaber JA, Nicholas AJA and Kriegler AJA
Heard	November 21, 1991; August 25, 1992
Judgment	September 28, 1992

Flynote : Sleutelwoorde

Practice — Judgments and orders — Rescission — Application for in terms C of Rule 42(1)(c) of Uniform Rules of Court — When to be granted — Requirements set out.

Headnote : Kopnota

Rule 42(1)(c) of the Uniform Rules of Court provides that '(t)he Court may . . . rescind or vary . . . an order or judgment granted as the result of a mistake common to the parties'. Rule 42 sets out exceptions to the general principle that a final order, correctly expressing the true D decision of the Court, cannot be altered by the Court. In relation to subrule (c) two broad requirements must be satisfied. Firstly, there must have been a 'mistake common to both parties'. As in the field of contract, this would occur where both parties are of one mind and share the same mistake - they are, in this regard, ad idem. Secondly, there must be a causative link between the mistake and the grant of the order or judgment; the latter must have been 'as a result of' the mistake. This requires that E the mistake relate to and be based on something relevant to the question to be decided by the Court at the time. The principle is that a retrospective mistake cannot subsequently be created by means of fresh evidence which was not relevant to any issue which had to be determined when the original order was made. The situation for which Rule 42(1)(c) provides is where the subsequent evidence is aimed at showing that the factual material which led the Court to make its original order was, contrary to the parties' assumption as to its correctness, incorrect. F

The second appellant in the first appeal (the appellant), cited as the first appellant in the second appeal, had been appointed as chief of the tribe after the death of his father in 1970. However, since he was still a young child, his uncle, the first respondent in both appeals (the respondent), was appointed as acting chief until the appellant attained majority. In 1985 the appellant reached majority and steps were taken to have him formally installed as chief. The respondent was unwilling to G vacate office and sought to have himself formally installed as chief. A temporary interdict preventing the installation of the respondent was granted. The matter, which had been referred to trial, was later postponed when the then President of Venda invoked the provisions of s 4 of the Vhuhosi Administration Act 14 of 1986 (V) to refer the dispute to a council of chiefs (the Khoro) who acted as an advisory body to the President. It was subsequently reported to the parties that the Khoro had met on 27 November 1987 and had resolved that the respondent be chief and that the President had 'accepted the advice given to him' by the Khoro. H

Thereafter the respondent sought the dismissal of the appellant's pending application and the discharge of the temporary interdict on the grounds that the issues referred to trial had been 'superseded by the . . . procedure initiated and . . . confirmed by . . . the president' under s 4 of the Act. The appellant's argument that s 4 did not empower either the Khoro or the President to deal with questions concerning the I identification of the chief (with which the dispute was concerned) and that only disputes as to installation fell within the purview of the section was dismissed. The Court a quo concluded that the President had 'acted to solve the dispute and (had) appointed (the respondent) as the new permanent chief of the . . . tribe'. On 3 March 1989, after the Court a quo's first judgment had been handed down and after an appeal against it had already been noted, the Khoro met for the first time since 27 November 1987. Its members were surprised that the minute of their previous meeting J reflected that they had resolved that the respondent be appointed chief

1992 (4) SA p853

A because they had in fact decided that the royal family (or the tribe) should settle the problem of who should be the chief. When the appellant heard what had happened he brought a second application, in June 1990, for the rescission of the first judgment on the grounds that it had been granted as a result of a mistake common to both parties, namely that the Khoro had resolved that the respondent be chief. The application was dismissed. The appeals against both judgments were placed on the role for hearing on the same day. The appeal against the dismissal of the B application for rescission of the first judgment only was argued because success would render the first appeal redundant.

Held, that the issue clearly fell within the ambit of Rule 42(1)(c): both parties had believed that the Khoro had resolved that the respondent be chief and that the President had accepted the Khoro's advice.

Held, further, that they had therefore assumed a state of affairs which C had turned out to be a wrong assumption.

Held, further, that their common mistake had been a mistake of fact and had clearly been iustus.

Held, further, as to the second requirement of Rule 42(1)(c), that the fresh evidence concerning the Khoro's true decision had established that the parties' earlier assumption had been incorrect, and that there had been a common mistake.

D Held, further, that the mistake had not only been relevant, it had been fundamental: the assumption that the Khoro had recommended to the President that the respondent be chief had been the substratum of the first judgment.

Held, accordingly, that the order indubitably had been made as a result of the parties' mistaken assumption as to the Khoro's recommendation and that, had the Judge a quo known the truth, he would not have been entitled to dismiss the applicant's first application.

E The order made in Tshivhase Royal Council and Another v Tshivhase and Another 1990 (3) SA 828 (V) set aside, and that in Tshivhase and Another v Tshivhase and Another reversed.

Case Information

Appeal from two decisions in the Venda Supreme Court (Le Roux CJ), the F first of which is reported at 1990 (3) SA 828. The facts appear from the judgment of Nestadt JA.

B M Ngoepe (with him Ms K D Moroka) for the appellants referred to the following authorities: As to the main issues on appeal, see Tshivhase Royal Council and Another v Tshivhase and Another 1990 (3) SA 828 (V); G Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (W) at 1162 et seq; Van der Merwe v Meyer 1971 (3) SA 22 (A) at 27A; John v Rees [1970] 1 Ch 345 at 402c-e; Shield Insurance Co Ltd v Van Wyk 1975 (4) SA 781 (NC) at 784H et seq; Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (C) at 476 in fine-477; Marinus Wiechers Administratiefreg 2nd ed at 93. As to the application for condonation, see Auby and Pastellides (Pty) Ltd H v Glen Anil Investments (Pty) Ltd 1960 (4) SA 865 (A) at 869 in fine-870A; Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A) at 92F-H; Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 264A; Estate Woolf v Johns 1968 (4) SA 492 (A) at 496E-F; Immelman v Loubser en 'n Ander 1974 (3) SA 816 (A) at 824C; Melane v Santam Insurance I Co Ltd 1962 (4) SA 531 (A) at 532E; S v Weinberg 1979 (3) SA 89 (A) at 98E-G; S v Thole 1962 (2) SA 90 (D) at 92E-G; Jaga v Dönges NO and Another 1950 (4) SA 653 (A) at 664G; Nkisimane and Others v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 434B-D; Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) at 488 in fine-489A; J South African Defence and Aid Fund and Another v Minister of

1992 (4) SA p854

Justice 1967 (1) SA 263 (A) at 270F-271A; Minister van Naturellesake v Monnakgotla 1959 (3) SA 517 (A) at 521D-522E; R v Ngwevela 1954 (1) SA 123 (A) at 128D-F, 131H. A

R K R Zeiss SC (with him P Z Ebersohn) for the respondents referred to the following authorities: Firestone South Africa (Pty) Ltd v Gentiruco AG B 1977 (4) SA 298 (A) at 306F-G; Ex parte Barclays Bank 1936 AD 481 at 486; Van Zyl v Van Der Merwe 1986 (2) SA 152 (NC) at 156B-157C; Ex parte Kruger 1982 (4) SA 411 (SE) at 415E; Shield Insurance Co Ltd v Van Wyk 1975 (4) SA 781 (NC) at 784A, 784G; Ex parte Jooste en 'n Ander 1968 (4) SA 437 (O) at 439G-H; Custom Credit Corporation (Pty) Ltd v Bruwer and Others 1969 (4) SA 564 (D); Meintjies v Theunissen 10 EDL 55 at 58; Hayes' C Executor and Others v Hayes and Others (1897) 18 NLR 194; Groenewald v Gracia (Edms) Bpk 1985 (3) SA 968 (T) at 971E-G; Makings v Makings 1958 (1) SA 338 (A) at 344H-345E; Moosa Bros v Rajah 1975 (4) SA 87 (D); Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428-9; Van der Merwe v Meyer 1971 (3) SA 22 (A) at 26.

D Cur adv vult.

Postea (September 28).

Judgment

Nestadt JA:

There are two appeals before us, both from judgments of Le E Roux CJ sitting in the Venda Supreme Court. They relate to a dispute as to the chieftainship of a tribe in Venda. The two contenders are Kennedy Tshivhase ('Kennedy') and his uncle, John Tshivhase ('John'). The first appeal (case No 98/89) is by Kennedy, as the second appellant, against an order dated 20 September 1988 ('the first judgment') which, in effect, F confirmed the appointment by the President of Venda of John as chief. John is the first respondent. The second appeal (case No 171/91) is also by Kennedy, as the first appellant, against the refusal on 12 November 1990 ('the second judgment') of an application to rescind the first judgment. Here, too, John is the first respondent. I explain later who the other parties to the appeals are. Both appeals are brought with the leave of the G Court a quo.

As will be seen, the...