THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable
Case no: 423/2020

In the matter between:

MLULEKI MARTIN CHITHI

FIRST APPELLANT

ERNEST SANDILE CELE

SECOND APPELLANT

SINAMA AND ASSOCIATES INC

THIRD APPELLANT

In re:

LUHLWINI MCHUNU COMMUNITY

CLAIMANT

and

LAWRENCE HANCOCK

FIRST RESPONDENT
PETER GOBLE

SECOND RESPONDENT
BUCKSTONE CC

THIRD RESPONDENT
MICHAEL ROBERTS

FOURTH RESPONDENT
HALLIWEL PROPERTY TRUST

FIFTH RESPONDENT
ARTHER JAMES ARATHOON

SIXTH RESPONDENT
AMANDA JANE CAMPBELL

SEVENTH REPONDENT
JOHN NORMAN CAMPBELL

EIGHT RESPONDENT

WILLEM JAN SCHORTEMEIJER

NINTH RESPONDENT
BETH SUSAN SHAW

TENTH RESPONDENT
BRETT DAVID SHAW

ELEVENTH REPONDENT
QONDISA CECIL NGWENYA

TWELFTH RESPONDENT
GLR PROPS 005 CC

THIRTEENTH RESPONDENT
NEWINVEST 136 (PTY) LTD
FOURTEENTH RESPONDENT
MICHAEL BENSON

FIFTEENTH RESPONDENT
VENGARITE (PTY) LTD

SIXTEENTH RESPONDENT
ELPIS TRUST

SEVENTEENTH RESPONDENT
MACKENZIE TRUST

EIGHTEENTH RESPONDENT
SAPPI MANUFACTURING (PTY) LTD

NINETEEN RESPONDENT
MONDI (PTY) LTD

TWENTIETH RESPONDENT
CHURCH OF THE PROVINCE OF
SOUTHERN AFRICA

TWENTY-FIRST RESPONDENT
REGIONAL LAND CLAIMS COMMISSIONER
FOR KWAZULU-NATAL

TWENTY-SECOND RESPONDENT
THE MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM

TWENTY-THIRD RESPONDENT

Neutral citation:
Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and
Others (Case No. 423/2020) [2021] ZASCA 123 (23 September
2021)

Coram:
PETSE AP, MOLEMELA, CARELSE and MOTHLE JJA and
MOLEFE AJA

Heard:
17 August 2021

Delivered:  This judgment was handed down electronically by circulation to the parties’
legal representatives by email, publication on the website of the Supreme Court of Appeal

and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on ##
September 2021.
Summary: Civil procedure – application for leave to appeal referred for oral argument in
terms of s 17(2)(f) of Superior Courts Act 10 of 2013 – costs order – whether the Land
Claims Court’s order depriving the applicants of their fees was warranted – leave granted
and appeal upheld.

______________________________________________________________________

ORDER
______________________________________________________________________

On application for Leave to appeal from: The Land Claims Court, Randburg, (Meer
AJP sitting as court of first instance):
The application for leave to appeal is granted.
The appeal is upheld.
Paragraph 5 of the order of the Land Claims Court is deleted.
There is no order as to the costs of the appeal.

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Mothle JA: (Petse AP, Molemela, Carelse JJA and Molefe AJA concurring):
[1] On 25 June 2020 two advocates and an attorney, in their personal capacities as
applicants, approached this Court with an application for leave to appeal a punitive costs
order. The costs order in issue deprived them of their fees as legal representatives of the
plaintiffs. On 6 August 2020, this Court, acting in terms of s 17(2)(d) of the Superior Courts
Act 10 of 2013 (the Superior Courts Act), referred the application for oral argument, and
directed that the parties must be prepared, if called upon to do so, to also address the
Court on the merits. The attorney, cited as the third applicant, withdrew from the
application a few days before its hearing. No reason was furnished for the withdrawal.

[2] The impugned costs order was made on 16 March 2020 by Meer AJP sitting in
the Land Claims Court (the LCC). In dismissing the plaintiffs’ claim for restitution of land
rights with costs, the learned Acting Judge President also disallowed in full, the applicants’
fees in the entire matter.

[3] The facts are briefly that on 17 April 1998, Mr Jabulani Mchunu lodged a claim
on behalf of the Luhlwini Mchunu Community (the community) in terms of the Restitution
of Land Rights Act 22 of 1994 (the Restitution Act). The Regional Land Claims
Commissioner, after investigating the claim, could not resolve the disputes with the
landowners through mediation or arbitration. On 5 May 2017, he referred the claim to the
LCC in terms of s 14(2) of the Restitution Act. Thereafter the majority of landowners
issued notices to defend the action, some disputing the allegation that the plaintiffs were
a community within the meaning of s 2(1) (d) of the Restitution Act.

[4] Prior to the commencement of the trial on 25 November 2019, a pre-trial
conference, presided over by the learned Acting Judge President, was held on 17
September 2019. During the pre-trial conference, the learned Acting Judge President
requested the parties to reflect on their stance, with reference to the standard of proof set
by the Constitutional Court, on whether what the plaintiffs sought to pursue was indeed a
community claim. She cautioned the parties that should the allegation that the plaintiffs
were a community not pass muster, there would be costs implications.

[5] On the first day of the trial, the first applicant informed the LCC that the claimants
intended to amend their pleadings. The purpose of the proposed amendment was, in the
main, to introduce an alternative claim as labour tenants. The application to amend was
however deferred to the end of the plaintiffs’ case. After hearing oral evidence from the
plaintiffs’ eight witnesses, the parties addressed the court on the amendment application.
In a written judgment dated 20 February 2020, the plaintiffs’ application to amend was
dismissed, the LCC having found it to be ‘bad in law, prejudicial to the Defendants, vague,
embarrassing and excipiable.’

[6] Thereafter the learned Acting Judge President of her own accord ordered a
separate hearing on an issue of law in terms of Rule 57(1).1 The issue of law raised was

1 Rule 57(1)(c) of the Land Claims Court allows the court, on its own accord, to order that a separate hearing
be held on an issue of law which may conveniently be decided separately from any other issue.

whether the plaintiffs were a community as defined in the Act. After hearing the parties,
the LCC ruled that the plaintiffs were not successful in proving that they were a
community.   Their action was thus dismissed with costs. The order included a punitive
costs order – in para 5 thereof - against their legal team, the applicants, couched in the
following terms:
‘The fees of the Plaintiff’s legal team, Attorney Sinama and Advocates Chithi and Cele, for this
entire matter are disallowed in full. They are ordered to repay to the relevant entity that funded
them on behalf of the State, whatever fees that may have already been paid to them.’

[7] On 27 May 2020, the LCC dismissed the applicants’ application for leave to
appeal. The applicants then turned to this Court with the present application. The plaintiffs
and defendants do not feature in this application. In particular, the defendants delivered
notices to abide the decision of this Court. I turn to the Land Court’s reasons for imposing
the punitive costs order against the applicants.

[8] In the main  judgment and under the heading ‘Were the proceedings vexatious,
frivolous and an abuse of the Court and should Plaintiff’s legal teams’ fees be disallowed?’
the LCC, in providing reasons for the punitive costs order, stated as follows (paras 24-
26):
‘At the hearing I mero motu asked Mr Chithi [first applicant] for submissions as to whether the
fees of the Plaintiff’s legal team comprising an attorney and 2 advocates, wholly funded by the
State, ought to be disallowed in the event of my finding against the Plaintiff as I have. I raised this,
given the persistence and pursuit on behalf of the Plaintiff with a community claim when there
was no shred of evidence to prove the legally established acid test post-Goedgelegen that the
Plaintiff derived its use and possession of the land from common rules.

I raised this especially given that Mr Chithi, leader of the plaintiff’s legal team, had appeared for
the Plaintiff in Elambini2 supra which, as aforementioned, involved a community claim for
restitution, as in the instant matter. In Elambini, Mr Chithi and the plaintiff’s legal team
unsuccessfully argued, contrary to Goedgelegen3, that persons who were at best labour tenants

2 Elambini Community v Minister of Rural Development and Land Reform and Others [2018] ZALCC 11.
3 Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC).

or farm workers on privately owned land constituted a community as defined in the Act. In Elambini
at paragraph 149 it was stated:
“it is disquieting that the plaintiff, who was legally represented, and significantly at the state’s
expense, throughout these proceedings, could have pursued and persisted with a community
claim without adducing a shred of evidence to prove the legally established acid test post
Goedgelegen, that they derived their possession and use of the land from common rules”
Post-Elambini at the very least Mr Chithi was thus well-versed with the requirements for instituting
and succeeding with a community claim. This notwithstanding, he persisted with this claim as a
community claim.

I raised the fees of the Plaintiff’s legal team also, given that during a telephonic pre-trial
conference I specifically cautioned the Plaintiff’s legal team to consider whether in light of the
established case law, the claim as a community on the part of the Plaintiff could pass muster, and
cautioned them that there could be cost implications if it did not.’ (Own footnotes.)

[9] The applicants contend, first, in regard to the application for leave to appeal,
that it should be granted, in that there are reasonable prospects of success. Second, in
respect of the envisaged appeal, that the order of the LCC should be set aside on
procedural grounds. Third, on substantive grounds, that the conduct of the applicants in
the trial was not vexatious, frivolous and an abuse of court processes. I proceed to deal
with these grounds in that order.

[10] The threshold for an application for leave to appeal is set out in s 17(1) of the
Superior Courts Act, which provides that leave to appeal may only be given if the judge
or judges are of the opinion that the appeal would have a reasonable prospect of
success.4 The applicants contend that this application concerned an order directed only
against them and not the plaintiffs in the action. Consequently, they asserted that the
application is capable of adjudication, independently of the merits of the action.

4 Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre [2016]
ZASCA 17; 2016 (3) SA 317 (SCA).

[11] In support of their application, the applicants relied, amongst others, on
procedural grounds, that the LCC in adjudicating the matter, breached the principles of
procedural fairness that are fundamental to the rule of law. As it turns out, and for the
reasons that follow, this contention has merit. I am thus of the view that the application
for leave to appeal should be granted and the appeal itself determined.

[12] It will be recalled that the learned Acting Judge President raised the question of
the costs with the first applicant during the debate in relation to the Rule 57 issue of law.
She summarily raised the issue of the punitive costs while the first applicant was
addressing the court. The first applicant was directed to show cause why he, the second
and third applicants, as plaintiffs’ legal team, should not be deprived of their fees. The
exchange between the first applicant and the learned Acting Judge President at that point,
demonstrates that the issue was raised in a manner that the first applicant felt somewhat
obligated to respond there and then. Thus, neither the applicants nor the other parties
participating in the trial were afforded adequate opportunity to make meaningful, or any
submissions on the subject.

[13] As for the second applicant and the attorney, they were not afforded an
opportunity to have their say in relation to the looming deprivation of their fees that the
LCC had threatened. In its judgment refusing leave to appeal, the LCC summarily
dismissed their complaint in this regard, on the basis that they were present in court and
that had they requested to address the court – which they did not do – they would readily
have been allowed to do so. This, however, manifests a misconception of the essence of
their complaint. When the LCC was minded to issue an order in the terms encapsulated
in para 5 of its order it had a duty to invite and then afford the second and erstwhile third
applicants a reasonable opportunity, as of right, to dissuade it from making the sort of
order it had contemplated. But it did not. Therein lies the rub.

[14] The principle that the courts should not grant adverse court orders, without
providing the affected parties an opportunity to be heard, is trite and sacrosanct. In this
regard what the Constitutional Court said in De Beer NO v North-Central Local Council

and South-Central Local Council 2001 (11) BCLR 1109 (CC); 2002 (1) SA 429 (CC) is
instructive. The Court said (para 11):
‘The right to a fair hearing before a court lies in the heart of the rule of law. A fair hearing before
a court as a prerequisite to an order being made against anyone is fundamental to a just and
credible legal order . . . It is a crucial aspect of the rule of law that court orders should not be made
without affording the other side a reasonable opportunity to state their case.’

[15] It therefore goes without saying that the courts must do more to avoid summarily
inquiring into the conduct of a legal practitioner and thereafter imposing a sanction. In
Singh and Others v North Central and South Central Local Councils and Others, [1999]
1 All SA 350 (LCC), the LCC stated as follows (para 128):
‘That however is not necessarily the end of the matter in relation to the conduct of the applicants’
attorneys and counsel and its impact on the costs order. The applicants and their attorneys allege
that an agreement has been reached with the Chief Land Claims Commissioner to provide legal
aid for these proceedings in terms of section 29(4) of the [Restitution] Act. This is disputed by the
third respondent. It would appear that that dispute may have to be resolved in separate legal
proceedings. It certainly does not fall to be determined here. For purposes of the costs order in
this matter, I will assume, without in any way seeking to decide the issue, that there is an
agreement or decision to provide legal aid for these proceedings. Where a litigant is funded by
State legal aid, a court may none the less order that an attorney may not recover costs from the
State’s legal aid system. Section 29(4) represents part of the State’s legal aid system. This may
be a case where such an order should be made. However the applicants, their attorneys and
counsel have not had an opportunity of being heard in this respect and no such order was sought
at the hearing. I will therefore provide in the order that such an opportunity be afforded before this
aspect is finally dealt with.’ (Emphasis added.)

[16] Further, in holding that the conduct of the applicants was vexatious, frivolous
and an abuse of court processes, the LCC made reference to the provisions of the
Vexatious Proceedings Act 3 of 1956 (the Act). The right to be heard prior to an order
being made in vexatious proceedings is entrenched in the Act itself. The relevant
provision is s 2(1) (b), which provides:

‘2(1)(b)
If, on an application made by any person against whom legal proceedings have been
instituted by any other person or who has reason to believe that the institution of legal proceedings
against him is contemplated by any other person, the court is satisfied that the said person has
persistently and without any reasonable ground instituted legal proceedings in any court or in any
inferior court, whether against the same person or against different persons, the court may, after
hearing that other person or giving him an opportunity of being heard, order that no legal
proceedings shall be instituted by him against any person in any court or any inferior court without
leave of that court, or any judge thereof, or that inferior court, as the case may be, and such leave
shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied
that the proceedings are not an abuse of the process of the court and that there is a prima facie
ground for the proceedings.’ (Emphasis added.)

[17] Accordingly, I conclude that the learned Acting Judge President erred in not
paying due regard to these statutory prescripts. She failed to separate the inquiry
concerning costs against the applicants from the trial, and to provide an opportunity for
the applicants to be heard. This breach of procedure, on its own, and for reasons
enunciated above, vitiates the LCC’s punitive costs order against the applicants. On this
ground alone, the punitive costs order falls to be set aside.

[18] Having so concluded, there is thus no need to deal in detail with the substantive
grounds of appeal, save to mention two issues. First, the LCC characterised the first
applicant’s conduct in the trial as being persistently in pursuit of a vexatious claim. This
view is expressed in paragraph 29 of its judgment as follows:
‘The Vexatious Proceedings Act 3 of 1956 authorises a court to prohibit legal proceedings by any
person who has persistently and without any reasonable ground instituted legal proceedings. For
the purposes of this Act, the element of persistency is a necessary one. Heugh and others v Gubb
1980 (1) SA 699 (C) at 702F. The litigation in the present case fits the persistency criteria, given
Mr Chithi’s persistence with a community claim notwithstanding his lack of success with the same
nature of evidence in Elambini.’ (Emphasis added.)

[19] On a proper reading of the record placed before this Court, there is no evidence
that supports the conclusion reached by the LCC that the litigation in the present case fits

‘the persistency’ criteria. The first applicant disputed the LCC’s finding that he initiated the
proceedings in Elambini. He contended that he had joined the proceedings in Elambini
as a junior member of the plaintiff’s substitute legal team, after the plaintiffs’ case had
been prosecuted. Therefore, having joined the proceedings at that stage, it cannot be
said that he instituted the plaintiffs’ case in Elambini. Similarly, included in the LCC’s
documents of the present case and filed as Bundle A, is the plaintiffs’ statement of claim
dated 28 February 2018, signed by T Kadungure as plaintiff’s counsel. A statement of
claim initiates proceedings for the claimants in the LCC, and not the referral in terms of
s 14 of the Restitution Act. The first applicant appears to have joined the proceedings
after the statement of claim was filed in 2018 and sometime before the pre-trial
conference. Thus, neither he nor the second applicant, could have initiated the
proceedings in this case.

[20] The second issue concerns the caution the learned Acting Judge President
made to the parties during the pre-trial conference. She cautioned that there could be
costs implications. Although paragraph 4 of the minutes of the pre-trial conference5 does
not reflect the learned Acting Judge President having cautioned the applicants, the first
applicant nevertheless confirms, in paragraph 12 of the founding affidavit before this
Court, that such a warning was made. However, it is apparent from the record that the
learned Acting Judge President cautioned the applicants even before the LCC heard oral
evidence from the plaintiffs’ witnesses at the trial. This is borne out by what is contained
in paragraph 7 of the minutes that, at that stage, the plaintiffs were yet to file their expert’s
report.

[21] Curiously, the learned Acting Judge President did not indicate the reasons that
moved her to issue the caution even before the plaintiffs presented oral evidence, in
particular that of the expert witnesses. The Constitutional Court in Helen Suzman
Foundation v President of the Republic of South Africa and Others; Glenister v President

5 The minutes of the pre-trial conference were signed by the learned Acting Judge President.

of the Republic of South Africa and Others [2014] ZACC 32; 2015 (1) BCLR 1 (CC),
cautioned, in paragraph 36, as follows:
‘The Court should ordinarily be very loath to grant a punitive cost order in a case like this. This is
constitutional litigation and parties should never be forced to be too careful to assert their
constitutional rights through a court process, for fear of a cost order.’6
Although these remarks were made in a different context, they are equally apposite in this
case as the plaintiffs were asserting their constitutional right to land restitution.

[22] The first applicant avers that in a consultation with the plaintiffs, held after the
caution, the plaintiffs instructed the legal team to present oral evidence in court, including
the expert evidence of Dr V Khumalo and Mr Xolani Xaba, the land surveyor to establish
their entitlement to the relief sought. Both experts appeared to support the plaintiffs’
contention that they were a community. There is no evidence to suggest that the
applicants acted recklessly in presenting the plaintiffs’ case in the manner they did. In
Multi Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA
(GP), the court remarked (para 34):
‘. . . [A]ttorneys and counsel are expected to pursue their clients’ rights and interest fearlessly and
vigorously without undue regard for their personal convenience. In that context they ought not to
be intimidated by their opponent or even, I may add, by the Court. Legal practitioners must present
their case fearlessly and vigorously, but always within the context of set ethical rules that pertain
to them. ... ’

[23] In the result I make the following order:
The application for leave to appeal is granted.
The appeal is upheld.
Paragraph 5 of the order of the Land Claims Court is deleted.
There is no order as to the costs of the appeal.

6 This view is reiterated by the same court in Lawyers for Human Rights v Minister in the Presidency and
others [2016] ZACC 45; 2017 (1) SA 645 (CC) para 17.

_____________________
SP MOTHLE
JUDGE OF APPEAL

APPEARANCES:

For appellants:

T V Norman SC (with her C M Nqala and K Shazi)
Instructed by:

Gordon Zungu Attorneys, Durban

Maduba Attorneys, Bloemfontein

For the 1st to 23rd Respondents:  No appearance

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
23 SEPTEMBER 2021
Status:

Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and Others (Case No.
423/2020) [2021] ZASCA 123 (23 September 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding the appellants’ appeal
against the decision of the Land Claims Court, Randburg (LCC).
The issue before the SCA was whether the punitive cost order granted by LCC depriving the land
claimants’ Legal Representatives of their fees in a land claim trial, should be set aside.
In November 2019, two Advocates and an Attorney were appointed to represent claimants as plaintiffs
in a trial for restitution of land rights, held in the LCC. Prior to the commencement of the trial, on 17
September 2019 a pre-trial conference, presided over by the learned Acting Judge President, was held.
During the pre-trial conference, the learned Acting Judge President requested the parties to reflect on
their stance, with reference to the standard of proof set by the Constitutional Court. The issue being
whether what the plaintiffs sought to pursue in the land claim was indeed a community claim as
prescribed by the Restitution of Land Rights Act. She cautioned the parties that should the allegation
that the plaintiffs were a community not pass muster, there would be costs implications.
At the end of the plaintiffs’ case, the LCC ruled that the plaintiffs were not successful in proving that
they were a community. Their action was thus dismissed with costs. The order included a punitive costs
order granted against their Legal Representatives. The LCC had found that the plaintiffs’ Legal
Representatives persistently pursued proceedings that were vexatious, frivolous and an abuse of the
court.
The SCA held that the principle that courts should not grant adverse court orders, without providing the
affected parties an opportunity to be heard, is trite and sacrosanct. Furthermore, the SCA held that the
right to be heard prior to an order being made in vexatious proceedings is entrenched in the Vexatious
Proceedings Act 3 of 1956. The SCA concluded that the learned Acting Judge President erred in not
paying due regard to these statutory prescripts, in that the learned Acting Judge President failed to
separate the inquiry concerning costs against the Legal Representatives from the trial, and to provide
an opportunity for the Legal Representatives to be heard.
~~~~ends~~~~