Njemla v KSD Local Municipality

Monwabisi Morris Njemla, claiming to represent the Kwalindile Community as its chief, obtained an interim interdict in the Land Claims Court preventing KSD Local Municipality from developing land alongside the Enkululekweni Ministerial Complex, pending finalization of a land claim lodged under the Restitution of Land Rights Act 22 of 1994. The interdict and a costs order were granted against the Municipality. During subsequent negotiations, Njemla's attorneys (Tshiki & Sons) wrote to the Land Claims Commissioner acknowledging that the land in question had never been dispossessed from the Community, had been continuously used for grazing, and therefore did not fall within the jurisdiction of the Land Claims Commission. The Community had not been dispossessed of the land and enjoyed protection under the Interim Protection of Informal Land Rights Act 31 of 1996. The Municipality then applied for rescission of the costs order on the basis that the court had been misled by false information. The interdict itself had become academic due to expiry of the negotiation period. The Land Claims Court (Bam JP) granted rescission of the costs order, finding that the court had been misled and lacked jurisdiction as the land was never subject to a valid restitution claim. Njemla appealed.

• Whether the Land Claims Court could rescind a costs order without first providing reasons for the original order
• Whether the Municipality could rely on the court's common law power of rescission after initially citing section 35(11) of the Restitution of Land Rights Act
• Whether the costs order was properly rescinded on the basis that the court had been misled about material facts
• Whether appeals against costs orders alone should be permitted
• The propriety of an attorney's conduct in attempting to supplement the record after the appeal hearing by attaching documents to an affidavit supporting an application for further written argument

1. The application for leave to deliver further written argument dated 27 August 2012 is dismissed and the appellant's attorney, Mr M Tshiki of Tshiki & Sons Incorporated, Mthatha, is ordered personally to pay the costs thereof. 2. The appeal is dismissed with costs. 3. The registrar is directed to serve this judgment on the relevant law society for investigation and action in relation to the attorney's conduct.

The binding legal principles established are: (1) A court has inherent common law jurisdiction to rescind orders obtained through fraud or material misrepresentation, in the interests of justice, where implementation would be manifestly inequitable. (2) The absence of reasons for an order does not preclude rescission where the material facts establish the order was improperly obtained. (3) The Land Claims Court lacks jurisdiction under the Restitution of Land Rights Act where land was never dispossessed from a community under racially discriminatory laws, even if a claim was formally lodged and gazetted. (4) A party is not precluded from relying on common law rescission powers merely because it initially cited statutory rescission provisions in its founding papers. (5) Where a costs order was consequential upon an interdict granted on false premises, and the interdict has become academic, rescission of the costs order is appropriate.

The Court made several significant obiter observations: (1) It was unnecessary to decide whether the processes in sections 11-14 of the Restitution of Land Rights Act had to be followed before the court could be said to lack jurisdiction, or whether admission that the substratum of the claim was lacking rendered the order a nullity ab initio. (2) The Court expressed disapproval of appeals against costs orders alone, stating they are generally discouraged and noting this appeal should never have been pursued, particularly given that the appellant had passed away. (3) The Court made extensive critical observations about the conduct of the appellant's attorney, describing it as lacking credibility, dubious, disingenuous, and deserving of severe censure, warranting referral to the law society for investigation. The Court noted the attorney's claim of being unable to recall the grounds of the application was "entirely unconvincing" and his attempt to supplement the record after the hearing was achieved "by subterfuge."

This case is significant in South African law for several reasons: (1) It clarifies that courts have inherent common law power to rescind orders obtained through misleading the court, regardless of whether statutory rescission grounds are initially cited. (2) It affirms that the absence of reasons for an order does not preclude rescission where the material facts demonstrate the order was improperly obtained. (3) It reinforces that the Land Claims Court's jurisdiction under the Restitution of Land Rights Act is limited to claims involving land actually dispossessed under racially discriminatory laws after 1913. (4) It reiterates the principle that appeals against costs orders alone are discouraged. (5) It provides an example of severe judicial censure for attorney misconduct, including misleading the court and procedurally improper attempts to supplement the record after an appeal hearing, resulting in personal costs orders and referral to the law society.