THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 1035/2019

In the matter between:

BOKONI PLATINUM MINES (PTY) LTD
APPELLANT

and

ABRAM MOROPANE
RESPONDENT

Neutral citation:
Bokoni Platinum Mines v Abram Moropane (/1035/2019) [2020]
ZASCA 168 (11 December 2020)

Coram:
SALDULKER, MOLEMELA and NICHOLLS JJA and SUTHERLAND
and UNTERHALTER AJJA

Heard:

04 November 2020

Delivered:

This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the Supreme Court of
Appeal website and released to SAFLII. The date and time for hand-down is deemed to
be 10h00 on 11 December 2020.

Summary:
Whether the judgment refusing the application for leave to amend plea and
counterclaim was res judicata – whether the recusal of the judicial officer who granted the
order refusing amendment, which recusal was based on bias, invalidates every aspect of
a trial, including judgments and orders made in the course of the trial.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Limpopo Division of the High Court, Polokwane (Muller and Kganyago
JJA sitting as court of first instance): judgment reported Bakoni Platinum Limited v
Moropane [2019] ZALMPPHC 30

1 The appeal is upheld.
2 The proceedings before Magistrate Malebane are set aside, including the judgment
refusing leave to amend the plea and counterclaim.
3 The matter is remitted to a full court of the Limpopo Division of the High Court to
adjudicate Acting Magistrate’s Moyane’s judgment on the merits of the application for
leave to amend the plea and counterclaim.
4 Each party is to pay its own costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________

Nicholls JA (Saldulker and Molemela JJA and Sutherland and Unterhalter AJJA
concurring):
[1] To suggest that this matter has a long and tortuous history would be an
understatement. It merely needs to be stated that 6 years after the institution of summons
in the magistrates court, a dispute involving a mielie farm worth R54 000 has now ended
up with an interlocutory application for leave to amend a plea being adjudicated upon in
this Court.

[2] In 2013 Bokoni Platinum Mines (Pty) Ltd (Bokoni), the appellant, decided to
commence mining activities on Klipfontein Farm. Pursuant thereto, Bokoni concluded
separate agreements with various members of the community (the farmers) who were
farming small plots of mielies on the land in question. Bokoni was to pay each subsistence

farmer amounts of R18 000 over three years, totalling R54 000. These agreements
spawned lengthy and costly litigation over a period of years. More than a hundred farmers
issued summons against Bokoni out of the Praktiseer Magistrates Court seeking to
vindicate their rights in term of their agreements. The same attorney represents all the
farmers and the pleadings are substantially identical. There are over a hundred actions
which have been consolidated, but for present purposes it is only necessary to deal with
the claim of one of the farmers, the respondent, Mr Abraham Moropane.

[3] The issue purportedly before this Court is whether the judgment of
Magistrate Malebane, of 13 March 2017, which dismissed Bokoni’s application for leave
to amend its plea and counterclaim, was res judicata. If so, was it permissible for
res judicata to be raised mero motu by the full bench of the Limpopo Polokwane
High Court (the high court)? The high court, having raised the issue, found that the matter
was res judicata and dismissed the application for leave to amend on this basis. It also
refused leave to appeal. The appeal comes before this Court upon Bokoni successfully
petitioning for leave to appeal.

[4] It is necessary to briefly set out the history of the matter. The agreement allegedly
concluded between Bokoni and Mr Moropane provided that an amount of R54 000 was
to be paid in three annual instalments of R18 000 each, on April 2013, April 2014 and
April 2015. The agreement recorded that the R54 000 was–
‘[A] once-off compensation payment, in full and final settlement, for any actual or contingent
losses or damages relating to subsistence farming on [the] Mieliefield located at Klipfontein Farm
(465 KS).’
The first amount of R18 000 was paid in April 2013 but no further amounts were paid.
This prompted Mr Moropane to sue for payments of the two remaining amounts of
R18 000 in terms of the written agreement.

[5] In Bokoni’s plea the written agreement was denied. In the alternative, it was
pleaded that the agreement between the plaintiff and the defendant was partly oral and
partly written, the written portion was attached to the particulars of claim. As a further

alternative, it was pleaded that the agreement contained a tacit term that the plaintiff was
entitled to compensation only if he in fact farmed mielies on the farm. Bokoni’s defence
was that Mr Moropane did not farm mielies at the time of concluding the agreement and
was therefore not entitled to payment. It instituted a counterclaim for unjust enrichment in
respect of the R18 000 already paid in April 2013.

[6] On 1 September 2014, Bokoni sought to amend its counterclaim to the effect that
the agreement between Mr Moropane and Bokoni was partly written, the written portion
being the agreement annexed to Mr Moropane’s particulars of claim. The oral part was
agreed upon during March 2013 by representatives of the Plaintiff, duly authorised, and
by Bokoni, represented by Andrew Letlapa, alternatively by a duly authorised
representative. Despite opposition, the amendment to the counterclaim was granted on
28 November 2014.

[7] Before the trial commenced the separate actions were consolidated, although the
claims of each plaintiff remained separate claims against Bokoni. The trial proceeded
before Magistrate Malebane in 2016 on the pleadings as they stood at that time, including
the amended counterclaim. At the start of the trial, it was submitted on behalf of Bokoni
that the written agreements were denied and there existed tacit agreements, the terms of
which would have to be proven.

[8] Mr Moropane testified, together with two other farmers who had also instituted
actions against Bokoni. At the close of the plaintiffs’ case, Bokoni brought an application
for absolution against the 116 farmers who did not testify. On 2 August 2016,
Magistrate Malebane dismissed thirteen of the actions but did not grant absolution in
respect of the balance of the actions. The defence case then commenced with the
testimony of Mr Pasha who was employed by Bokoni as a community liaison officer.
Contrary to the plea, he admitted that written agreements had been concluded with the
farmers. Once he had completed his testimony, the trial was postponed to
30 November 2016.

[9] Before that date, on 27 October 2016, Bokoni served another notice of intention to
amend its plea and counterclaim in which the written agreement was admitted. Bokoni’s
attorney, Ms Deidre Venter, was the deponent to the founding affidavit in the application
for leave to amend. She explained that after Mr Phasha’s testimony, they consulted with
Mr Letlapa who was employed by Bokoni as the socio-economic development
co-ordinator at the time. It became apparent that it was he, not Mr Phasha, who was
involved in concluding the agreements, and they were indeed written agreements. Bokoni
intended calling him as a witness and in order that the pleadings were aligned with the
evidence, sought to amend its pleas and counterclaims accordingly.

[10] Bokoni’s case as amended was that written agreements were concluded, which
properly interpreted, meant that the farmers would only be entitled to be compensated if
they in fact had a mielie field at the time of the conclusion of the agreement. It was stated
that whether they actually farmed mielies on the mielie field was irrelevant, except insofar
as it may be evidence that they had a mielie field. The counterclaim was similarly framed
that if any farmer did not have a mielie field at the time of the conclusion of the agreement,
he was not entitled to the R18 000 paid to him and was unjustly enriched in this amount
at the expense of Bokoni. In the specific case of Mr Moropane, the written agreement was
still denied but it was pleaded that he did not have a mielie field at the time. This being
so, he was not entitled to compensation.

[11] Mr Moropane’s objections to the leave to amend were, inter alia, that Bokoni was
attempting to introduce a defence not raised in its plea and only after their first witness
had been cross-examined; that Bokoni sought to retract an allegation that the agreement
was partly oral and partly written; and, it would be highly prejudicial to the plaintiffs to
grant the amendment.

[12] After hearing a substantive application for amendment on 13 March 2017
Magistrate Malebane dismissed the application for leave to amend the plea and
counterclaim. Bokoni lodged a notice of appeal against this decision. This was soon
followed by Bokoni’s application for the recusal of Magistrate Malebane on the grounds

of bias, pertaining to the manner in which he had conducted the trial thus far. On
25 April 2017 the recusal application was granted and Magistrate Malebane ordered that
the matter start de novo before another magistrate.

[13] This prompted Bokoni to withdraw its appeal on 30 May 2017 as the effect of the
recusal was that the appeal was now ‘a nullity’. Instead, the next day on 31 May 2017,
the third notice of amendment was served, in terms almost identical to the one that had
been dismissed by Magistrate Malebane.1 A similar objection was filed by Mr Moropane
and Ms Venter again deposed to the founding affidavit.

[14] Another substantive application for leave to amend the plea and counterclaim was
launched, this time before Acting Magistrate Moyane in the Tubatse Magistrate’s Court.
For reasons that are not germane to this appeal, he, like Magistrate Malebane, dismissed
the application. Bokoni appealed Magistrate Moyane’s refusal of the application for leave
to amend in the high court. The appeal was dismissed by the high court.

[15] In the high court the issue of res judicata was raised by the high court for the first
time. Up until that point, both parties had proceeded on the assumption that all
Magistrate Malebane’s judgments, including the judgment on absolution and the
judgment on the application for leave to amend, had been set aside as a consequence of
his recusal. The high court first considered whether Magistrate Malebane was entitled to
order that the matter start de novo. It held that, as a creature of statute,
Magistrate Malebane did not have that power, but because of the successful application
for his recusal the evidence had to be adduced de novo before a different magistrate.
This meant, said the high court, that ‘the slate [was] wiped clean’. Despite this, the
high court held that the judgment of Magistrate Malebane had not been nullified by his
recusal. This judgment was still binding and to find otherwise would be ‘tantamount to a
procedure, other than an appeal or review, in terms whereof a final interlocutory

1 It should be noted that in respect of Mr Moropane, the third amendment continued to deny the existence
of a written agreement.

procedural order, is set aside by the magistrate who is functus officio’. Such a result could
not be countenanced, and the appeal was dismissed on that ground.

[16] To justify its decision the high court concluded that where equity and fairness
demanded, the courts have over the years relaxed the common law requirement that
res judicata had to be pleaded.2 It, therefore, found that the high court was entitled to
raise the issue of res judicata and that the application for amendment before
Magistrate Moyane amounted to an abuse of the process of court. The high court
concluded that ‘the order of Magistrate Malebane ha[d] not been nullified by his recusal,
is final and is res judicata’.

[17] Bokoni, in line with the judgment of the high court, identified three issues that this
Court should deal with on appeal, namely, whether the judgment of Magistrate Malebane
was res judicata; whether res judicata could be raised by the high court mero motu and,
if so, was it appropriate in the circumstances of this case; and finally, the merits of the
application for leave to amend. But was this the correct enquiry in light of the recusal of
Magistrate Malebane?

[18] The starting point should, in my view, have been the legal effect of the recusal. By
embarking upon the issue of res judicata the high court misconstrued the enquiry. The
question to be determined, in the light of Magistrate Malebane’s recusal, was the status
of the interlocutory judgment in which he dismissed the application for leave to amend the
plea and counterclaim. Did his recusal extinguish the entire proceedings, including the
interlocutory judgment or merely the evidence that had been led? If the former, this is
dispositive and the question whether the judgment was res judicata does not arise.

[19] The recusal was sought, and granted, on the grounds of bias, or a reasonable
apprehension thereof. Whether Magistrate Malebane’s decision to recuse himself was

2 For this proposition the high court placed reliance on Boland Konstruksie Maatskappy (Edms) Bpk v Petlen
Properties (Edms) Bpk 1974 (4) 980 (C).

correct, or whether the bias alleged warranted the recusal, is not for this Court to
determine. It suffices that the application for his recusal was granted.

[20] It has long been accepted by our courts that a decision maker should be unbiased
and impartial. This common-law right is now buttressed by the fair trial rights in the
Constitution.3 Impartiality is the cornerstone of any fair and just legal system and an
impartial presiding officer in every judicial proceeding or tribunal is an absolute requisite
of fairness.4 The rule against bias requires the recusal of a presiding officer where there
is bias or a reasonable perception thereof. Once the conduct of a judicial officer is tainted
with bias, this vitiates the proceedings. The law reports are replete with criminal matters
where the entire proceedings were rendered a nullity upon a presiding officer having
recused him or herself.5 The reason for this is straightforward. Unbiased adjudication is
fundamental to a fair hearing: it is an irreducible prerequisite. Once an adjudicator
recognises his or her own bias, recusal must follow. But so too does the consequence
that the proceedings cannot stand. They are set aside because we do not ask whether a
biased adjudicator came to a correct decision. Rather, the law adopts the position that a
biased adjudication will not be countenanced because it is so inimical to what fairness
requires that the decisions rendered by it may not stand.

[21] There is a dearth of authorities in respect of civil matters but there are no coherent
reasons why civil litigants have a lesser claim to an unbiased hearing. Nor why the
principle of nullity should not apply to them.6 In principle there appears to be no distinction.
The reported cases that there are, have, in the main, involved tribunals. If nullity is visited
upon the proceedings of an administrative tribunal where the taint of bias is established,
how much more so in a court of law. In Moch v Nedtravel (Pty) Ltd t/a American Express

3 Section 34 of the Constitution provides that:
‘Everyone has the right to have any dispute which can be resolved by the application of law decided in a
fair public hearing before a court or, where appropriate, another independent and impartial tribunal or
forum’. See also Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC) para 28.
4 South African Catering and Allied workers Union v Irvin and Johnson 2000 (3) SA 705 (CC) para13.
5 R v Mhlanga 1959 (2) SA 220 (T); S v De Koker 1978 (1) SA 659 (O); S v Molowa 1998 (2) SACR 422
(O); S v Polelo 2000 (2) SACR 734 (NC).
6 Brooks and Others v S 2019(1) SACR 103 (NCK) para 26 where it is stated that the authorities are clear,
once a presiding officer recuses himself, the trial is a nullity and this applies to both criminal and civil
matters.

Travel Service7 the dispute concerned the appealability of an acting judge’s refusal to
recuse himself in a sequestration application. This Court found that all proceedings
conducted after the recusal were a nullity. This may suggest that any proceedings before
the recusal are unaffected but on a proper reading it appears that this Court accepted
that once there is bias, the proceedings are a nullity from the start. Moch8 invoked the
earlier authority of Council of Review, South African Defence Force v Monnig9 dealing
with a military tribunal where Corbett CJ said:
‘What must be remembered is that in the present case we are concerned with proceedings of
what is in substance a court of law . . . .If, as I have held, the court martial should have recused
itself, it means that the trial which it conducted after the application for recusal had been dismissed
should never have taken place at all. What occurred was a nullity. It was not, as in many of the
cases quoted to us, an irregularity or series of irregularities committed by an otherwise competent
tribunal. It was a tribunal that lacked competence from the start. The irregularity committed by
proceeding with the trial was fundamental and irreparable. Accordingly there was no basis upon
which the council of review could validate what had gone before. The only way the council of
review could have cured the proceedings before the court martial would have been to set them
aside.’

[22] To the extent that there may be some ambiguity in Moch and South African
Defence Force that it is only the proceedings after recusal that are a nullity, this was put
to rest by this Court in Basson v Hugo.10 There the primary issue was whether the
appellant was obliged to exhaust all internal remedies before launching an application to
set aside a decision of the Health Professions Council refusing an application for recusal
of two of its members serving on the relevant disciplinary committee. This Court, relying
on Moch and Monnig, held that if it were found that the members should have recused
themselves, the bias would permeate all the proceedings, including any appellate
proceedings. One cannot cure a nullity observed Shongwe AP before ordering a remittal
back to the high court to determine the review.

7 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (SCA).
8 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (SCA) at 9D-G.
9 Council of Review, South African Defence Force and Others v Mönnig and Others 1992 (3) SA 482 (A) at
495A-D.
10 Basson v Hugo and Others [2018] ZASCA 1; 2018 (3) SA 46 para 21.

[23] Similarly in Ndimeni v Meeg Bank Ltd (Bank of Transkei)11 the failure of an acting
judge in the labour court to recuse himself, resulted in the court proceedings being
declared a nullity.

[24] Therefore, as a general rule, a recusal on the basis of bias will permeate and
invalidate every aspect of a trial, including the judgments and orders made in the course
of the trial. There are those unique circumstances where the rationale for the recusal has
limited impact and to nullify the entire proceedings would not be in the interests of justice.
In Le Car Auto Traders v Degswa12 the appellant, aggrieved by the court’s judgment,
made an application for the recusal of the presiding judge shortly before the application
for the leave to appeal was to be heard. The basis for the application was that the
respondents had behaved unconscionably by making contact with the judge’s registrar
regarding the date of the hearing for leave to appeal. The obviously unmeritorious
application was dismissed. The court’s further observations that the effect of a recusal
could only be in respect of prospective or current proceedings which did not nullify the
judgment were in relation to the very special facts of that case. Apart from being
obiter dictum they have no bearing on the current case as the refusal of the amendment
order formed part of a trial proceeding still underway.

[25] The limitation on the principle of nullity was not argued before us and this is not a
case where it would have application. To find that the recusal nullified the evidence given
before Magistrate Malebane as well as the judgment on absolution from the instance but
not the interlocutory judgment given by him, is an unsustainable proposition. It cannot be
that the bias wiped the slate clean as far as the evidence goes but did not infect any
interlocutory
judgment
given
on
the
basis
of
the
same
evidence.
Once
Magistrate Malebane recused himself, this vitiated the entire proceedings, including his
judgment on the application for leave to amend. The inevitable consequence was that the

11 Ndimeni v Meeg Bank Ltd (Bank of Transkei) [2010] ZASCA 165; 2011 (1) SA 560 (SCA).
12 Le Car Auto Traders v Degswa 10138 CC and Others [2012] ZAGPJHC 286.

trial would have to start de novo. The judgment became a nullity upon his recusal. Having
made this finding, the issue of res judicata becomes irrelevant.

[26] To this extent, the appeal against the decision of the high court to dismiss Bokoni’s
application must succeed, although on entirely different grounds. However, insofar as the
merits of the application for leave to amend are concerned, the high court has not
pronounced on the judgment of Acting Magistrate Moyane. Therefore, the appropriate
course of action is to remit the matter to the high court for a hearing on the merits of the
application for leave to amend the plea and counterclaim.

[27] As regards costs, it was not the fault of either party that the high court misconstrued
its enquiry and did not deal with the merits of the appeal before it. Although Bokoni has
been successful in its appeal it was not on the grounds argued by it. It follows that the
most equitable order would be for each party to pay its own costs.

[26] In the result I make the following order:

1 The appeal is upheld.
2 The proceedings before Magistrate Malebane are set aside, including the judgment
refusing leave to amend the plea and counterclaim.
3 The matter is remitted to a full court of the Limpopo Division of the High Court to
adjudicate Acting Magistrates Moyane’s judgment on the merits of the application for
leave to amend the plea and counterclaim.
4 Each party is to pay its own costs.

_________________
CH NICHOLLS
JUDGE OF APPEAL

APPEARANCES:

For appellant:

L Hollander
Instructed by:

Shepstone & Wylie, Johannesburg

Symington & De Kok, Bloemfontein

For respondent:

DB Tshabalala
Instructed by:

Molefe Attorneys, Polokwane
NW Phalatsi & Partners, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
Bokoni Platinum Mines v Abram Moropane (/1035/2019) [2020] ZASCA 168
From:
The Registrar, Supreme Court of Appeal
Date:
11 December 2020
Status:
Immediate
Please note that the media summary is for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.
Today the Supreme Court of Appeal (SCA) upheld the appeal by the appellants with each party to pay
its own costs.
In 2013 Bokoni Platinum Mines (Pty) Ltd (Bokoni), the appellant, commenced mining activities on
Klipfontein Farm. Pursuant thereto, Bokoni concluded separate agreements with various members of
the community (the farmers). Bokoni was to pay each subsistence farmer amounts of R18 000 over
three years, totalling R54 000. More than a hundred farmers issued summons against Bokoni, out of
the Praktiseer Magistrates Court, seeking to vindicate their rights in term of their agreements. The
purported issue before this Court was whether the judgment of Magistrate Malebane, of 13 March
2017, which dismissed Bokoni’s application for leave to amend its plea and counterclaim, was res
judicata. If so, was it permissible for res judicata to be raised mero motu by the full bench of the
Limpopo Polokwane High Court (the high court)? The high court, having raised the issue, found that
the matter was res judicata and dismissed the application for leave to amend on this basis. It also
refused leave to appeal. The appeal comes before this Court upon Bokoni successfully petitioning for
leave to appeal.
Bokoni in its plea denied the written agreement, alternatively, it pleaded that the agreement it entered
into with the individual plaintiff farmers was partly oral and partly written. The various actions were
consolidated and the trial proceeded before Magistrate Malebane in 2016. Pursuant to an application
for absolution at the close of the plaintiffs’ case Magistrate Malebane dismissed thirteen of the actions
but did not grant absolution in respect of the balance of the actions. After the testimony of one of its
witnesses, Bokoni served a notice of intention to amend its plea and counterclaim, in which the written
agreement was admitted. An objection was raised on the basis that Bokoni was attempting to
introduce a defence not raised in its plea; that Bokoni sought to retract an allegation that the

agreement was partly oral and partly written; and, it would be highly prejudicial to the plaintiffs to grant
the amendment.
Magistrate Malebane dismissed the application for leave to amend the plea and counterclaim. Bokoni
lodged a notice of appeal against this decision. This was followed by Bokoni’s application for the
recusal of Magistrate Malebane on the grounds of bias, pertaining to the manner in which he had
conducted the trial thus far. The recusal application was granted and Magistrate Malebane ordered
that the matter start de novo before another magistrate. Bokoni’s notice of appeal was withdrawn on
the basis that the proceedings before Magistrate Malebane were ‘a nullity’. Another substantive
application for leave to amend the plea and counterclaim was launched, this time before Acting
Magistrate Moyane in the Tubatse Magistrates Court. This application was also dismissed. Bokoni
appealed Magistrate Moyane’s refusal of the application for leave to amend in the high court. The
appeal was dismissed by the high court which mero motu raised the issue of res judicata. The high
court first considered whether Magistrate Malebane was entitled to order that the matter start de novo.
It held that, as a creature of statute, Magistrate Malebane did not have that power, but because of the
successful application for his recusal, the evidence had to be adduced de novo before a different
magistrate. However, the high court held that the judgment of Magistrate Malebane was res judicata
and the appeal was dismissed on that ground.
Although the issue identified on appeal was that of res judicata, this Court held that the high court
misconstrued the enquiry. The question to be determined, in the light of Magistrate Malebane’s
recusal, was the status of the interlocutory judgment in which he dismissed the application for leave to
amend the plea and counterclaim. This Court found that the recusal extinguished the entire
proceedings, including the interlocutory judgment. To find that the recusal nullified the evidence given
before Magistrate Malebane, as well as the judgment on absolution from the instance, but not the
interlocutory judgment given by him, was an unsustainable proposition. Once a recusal is granted on
the basis of bias this will generally infect the entire proceedings which are vitiated in their totality. The
SCA held that all proceedings including the judgment of Magistrate Malebane became a nullity upon
his recusal. Having made that finding, the issue of res judicata became irrelevant. With regard to the
merits, it was held that the high court had not pronounced on the merits of the judgment of Acting
Magistrate Moyane on the application for leave to amend the plea and counterclaim. Therefore the
appropriate course of action was to remit the matter to the high court for this purpose. The appeal was
upheld and the proceedings before Magistrate Malebane were set aside, including the judgment
refusing leave to amend the plea and counterclaim. The matter was remitted to the full court of the
Limpopo Division of the High Court to determine the merits. Each party was ordered to pay its own
costs as it was not the fault of either party that the high court misconstrued the enquiry before it.
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