NDOU J: The
applicants instituted a court application seeking a remedy in the following
terms:
“It is ordered that:-
1.
The
eviction of the applicants by the respondents jointly and severally from their
land namely plot number lot 32 and 33 Essexvale be and is hereby declared to be
unlawful.
2.
The
1st respondent's occupation of the applicants pieces of land without
a lawful court order evicting the applicants be and is hereby declared to be
unlawful.
3.
The
1st respondent and all those claiming through him or for him be and
are hereby directed to vacate the applicants piece of land namely plot number
32 and 33 Essexvale within 48 hours of granting of this order failing which the
Deputy Sheriff with the assistance of the Officer-In-Charge, Esigodini be and
are hereby directed to evict the 1st respondent and all those acting
through him or for him.
4.
The
respondents jointly and severally be and are hereby interdicted from
interfering with the applicants' occupation, use and possession of the piece of
land namely plot 32 and 33 Essexvale, without a lawful court order authorizing
the confiscation of their land.
5.
The
1st and 2nd respondents be and are hereby ordered to pay
costs of suit.”
At some stage a default judgment was granted against the 1st
respondent. Under case number HC 667/08,
the 1st respondent applied for rescission of the default
judgment. The parties, after filing
heads of argument and the matter having been set down for hearing, reached a
settlement. The settlement culminated is
a consent order dated 14 January 2009 phrased as follows:-
“It is ordered that:-
1.
Judgment
granted is default in case number HC 197/07 and X-Ref HC 2794/07, 341/07 on the
21st February 2008 be and is hereby rescinded.
2.
Applicants'
application case No. 1623/07 for the dismissal of the main action, case No. HC
197/07 be and is hereby withdrawn.
3.
The
applicants' supplementary affidavit filed under HC 667/08 be and is hereby
incorporated as pleadings under case No. HC 197/07.
4.
The
respondents are granted leave to file any answer in they so wish to the supplementary
affidavit, within 15 days of this order.
5.
The
parties be and are hereby directed to file heads of argument within 10 days
after the filing and service of the answer to the supplementary affidavit or
expiry within which the answer is to be filed.
6.
Pending the finalization of the main action case No. HC 197/07 the
parties shall continue to peacefully co-exist at the farm in dispute.
7.
The
costs of this application be costs in the cause.” (Emphasis added)
Thereafter, the parties' legal practitioners of record
approached CHEDA J on 19 June 2009. It
was apparently agreed that the matter be heard on 6 July 2009, so the matter
was set down for hearing. On 1 July 2009
the applicants' legal practitioner filed a letter saying they intended
withdrawing the main application under HC 197/07. Initially the applicant did not tender
costs. On 2 July 2009 the 1st
respondent's legal practitioner wrote back saying they were not consenting to
the withdrawal. On 3 July 2009, the
applicants' legal practitioner filed another withdrawal letter this time around
tendering costs. Still the 1st
respondent did not consent. It is
important to quote from the letter of withdrawal itself to understand the
motive:
“Re: Edward
Mangena & anor vs Nino Flannino and Ors: HC 197/07 (Set Down for 6 July
2009)
We refer to the above matter.
We would like to advise you that our clients would like to withdraw this
matter with a tender of costs on an ordinary scale due to the following
reasons:
1.
The
relief our clients wanted on the draft order was for them to be re-instated on
Lot 32 and 33, Essexvale, which they have been re-instated and they are
peacefully co-existing with 1st respondent in this matter. From the look of things we would like to
believe that the relief being sought has been cured since the parties now
co-exist together and continue their farming activities without disturbance
from each other.
2.
Since
that farm was not de-listed and there is no authority from the Ministry of
Lands that de-listed the farm it means the applicants are in lawful occupation
of that land.
The applicants have allocation letters and everything
entitling them to the land. Thus there
is no reason to continue pursuing this matter under HC 197/07 fully knowing
that the applicants were given that land by the designating authority and now
are in peaceful existence on Lot 32 and 33 Essexvale and they are satisfied to
be carrying their farming activities.
Their allocations have not been LAWFULLY set aside.
3.
The
applicants are not interfering with business of 1st respondent. Then as facts stand on the ground everyone is
happy and continuing with their business.
The papers show their designated plots which they occupy.
It is on these grounds that the applicants would withdraw
their matter and tender wasted costs on an ordinary scale since it was because
of the respondent conduct that the applicants approached the court. Thus accompanying this letter is a notice of
withdrawal. By copy of this letter we
advise the Honourable Justice Ndou, through his clerk that we have withdrawn
the matter.”
It is trite that in the absence of agreement between the
parties, the court retains a discretion whether or not to allow the withdrawal
of a case after set-down – Abramacos v
Abramacos 1953 (4) SA 474 (SR) and Pearson & Hutton NNO v Hitzeroth & Ors 1967(3) SA 591 (E)
at 594G. A party is normally permitted
to withdraw a claim subject to an appropriate order as to costs, unless the
withdrawal amounts to an abuse of the court process – Levy v Levy 1991(3) SA
614 (A) at 619F-620C and Herbstein and Van Winsen – The Civil Practice of the Supreme Court of South Africa (4th
Ed) at 568-569. Although these
authorities were specifically dealing with trial actions, the same principles,
in my humble view, apply to application proceedings. The above-mentioned letter of withdrawal
contains inaccuracies. It is misleading
to give the impression that the applicants sought a relief of co-existence with
the 1st respondent. They
actually sought full rights to the land in dispute and more importantly, the
eviction of the 1st respondent.
The peaceful co-existence is a creature of CHEDA J's above-mentioned order in paragraph 6 which I
highlighted above. This co-existence is
interlocutory “pending the finalization of the main action case No.
197/07.” It was never meant to be a
final determination of the parties' rights of occupation even before, the
matter was argued. Thus withdrawal, from
the reasons given by the applicants above, amounts to an abuse of the court
process – Levy v Levy, supra. The withdrawal
is not made in good faith and should not be permitted.
Accordingly I refuse the withdrawal and the matter will be
argued on the merits.
Cheda & Partners applicants' legal practitioners
Webb, Low & Barry, 1st
respondent's legal practitioners
