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[2010] ZAGPPHC 139
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Regional Land Claims Commissioner v RAMA Communal Property Association and Others (48712/08) [2010] ZAGPPHC 139 (5 October 2010)
NOT
REPORTABLE
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
NORTH
GAUTENG
DIVISION,
PRETORIA
CASE
NUMBER: 48712/08
DATE:
5 October 2010
THE
REGIONAL LAND CLAIMS COMMISSIONER
........................
APPLICANT
v
RAMA
COMMUNAL PROPERTY ASSOCIATION
.........................
1
st
RESPONDENT
ANDY
NTHITE
.....................................................................................
2
nd
RESPONDENT
PETER
SEKGOTHE
............................................................................
3
rd
RESPONDENT
LEMECK
PILA
.....................................................................................
4
th
RESPONDENT
PETER
SEEMA
....................................................................................
5
th
RESPONDENT
SAM
NTSOKO
......................................................................................
6
th
RESPONDENT
SAMSON
MMOLEDI
............................................................................
7
th
RESPONDENT
REFILWE
NCUBE
...............................................................................
8
th
RESPONDENT
MAMSY
MPHOLOFOLE
......................................................................
9
th
RESPONDENT
MARIA
LETSWALO
...........................................................................
10
th
RESPONDENT
Judgment:
MabuseJ
JUDGMENT
MABUSE
J
:
1.
This is an application in terms of section 13(1) of the Communal
Property Association Act 28 of 1996 ("The CPA Act")
to
place the First Respondent under the administration of the Applicant
and furthermore to remove the incumbent office bearers
of the First
Respondent, that is, the Second to the Tenth Respondents from office.
The Application is opposed by the Respondents.
2.
The Applicant is The Regional Land Claims Commissioner appointed as
such by the Minister of Agriculture and Land Affairs in terms
of the
provisions of section 4 of the Land Restitution of Land Rights Act 22
of 1994 ("The Restitution Act") of 9 Bailey
Street,
Arcadia, Pretoria. The Applicant alleges that the Director General of
Land Affairs, who is the relevant authority empowered
by the
provisions of the CPA Act to place the First Respondent under
administration, has delegated his powers to place the First
Respondent under administration to herself in terms of section 15 of
the CPA Act. In support of this allegation that the Director
General
has delegated the necessary authority and powers in terms of section
15 of the Act, the Applicant relies on a document
she has attached to
the application marked ISSI. I will deal with this document later.
3.
The First Respondent is Rama Communal Property Association (Rama
CPA), a Communal Property Association which is registered in
terms of
Section 8 of the CPA Act which has its offices at Eckraal Quarries
310, Farm Wildebeeshoek, Rosslyn, Pretoria. The Second
Respondent is
Andy Nthite ("Andy"), an adult male person and the current
chairperson of the First Respondent Committee
of the same address as
the First Respondent. The Third Respondent is an adult male person
and the current vice-chairperson of the
First Respondent Committee of
the same address as the First Respondent. The Fourth Respondent is an
adult male person and current
secretary of the First Respondent who
also shares the same address as the preceding Respondents. The Fifth
Respondent is an adult
male person and the current vice secretary of
the First Respondent. He also shares the same address as the
preceding Respondents.
The Sixth Respondent is an adult male person
and the treasurer of the First Respondent. The Seventh Respondent is
an adult male
person and an additional member of the First
Respondent. The Eighth Respondent is an adult male person and also an
additional member
of the First Respondent. The Ninth Respondent is an
adult male person and additional member of the First Respondent. The
last and
the Tenth Respondent is an adult female person and also an
additional member of the First Respondents. All the Respondents share
the same physical address.
4.
The Applicant contends that the Director General of the Department of
Land Affairs ("DLA"), has delegated to her his
powers in
terms of section 13 of the CPA Act which provides that a Director
General can bring an application to place a Communal
Property
Association (CPA) under his administration where the CPA, because of
insolvency or maladministration or for any other
cause is unwilling
or unable to pay its debt or is unable to meet its obligations or
where it would otherwise be just and equitable
in the circumstances.
The basis on which the Applicant seeks to bring an application in
terms of the aforementioned section is
clear from the following
background.
5.
In 1998 the claimants, presumably some members of the Rama Community,
lodged claims in terms of the Restitution Act on the Remaining
Extent
of Kafferskraal 308 JR and Portion 2 of Wildebeesthoek 308 JR. These
claims were adjudged to be valid and accordingly were
published in
the Government Gazette. For that purpose a CPA was formed and
registered as the Rama CPA. The Rama CPA was formed
for the purpose
of a holding land on behalf of the claimants. A section 42D
submission was prepared and was approved by the Minister
of
Agriculture and Land Affairs on 24 March 2001. In terms of the
section 42D memorandum, the State acquired the claimed land for
the
sum of R13 811 000,00.
6.
Rama CPA started experiencing problems when its elected chairperson,
one Ramathyane Poo ("Poo") was voted out of the
Rama CPA
Committee after a report from the auditors had indicated that certain
transactions were executed without supporting documents.
A group of
non-beneficiaries constituted themselves into the Se-Boikhutso after
they had alleged that they were part of the original
buyers of Rama.
They presented a memorandum to the Applicant's office in which they
had requested the Applicant to remove the Government
Official who was
working on the project. Having gone through the memorandum the
Applicant requested her legal unit to respond to
it. The First
Respondent's Committee brought an urgent interdict to stop the
Se-Boikhutso group from holding meetings on the restored
land.
7.
Another interdict was brought by a group led by the said Poo who
claimed to represent the original buyers of Rama and who furthermore
claimed that he did not recognise the existence of the Rama CPA
Committee. This interdict was dismissed with costs.
8.
The Rama CPA Committee members started to fight among themselves when
the chairperson requested the removal of the Treasurer
for failing to
attend executive meetings on three occasions without any written
apology. Other members of the Rama CPA Committee
objected to the
chairperson's request for the removal of the Treasurer and decided to
side with the Treasurer. The Treasurer together
with four other Rama
CPA Committee members approached the Absa Bank in Rosslyn and caused
removal of the chairperson as one of
the signatories to the bank
account.
9.
A Steering Committee comprising of Tshwane Metropolitan Municipality,
Gauteng Provincial Housing Department, the Department of
Mineral and
Energy, claimants representatives and the Regional Land Claims
Commission was formed. However the Steering Committee
could not
function as a result of the wrangle within the Rama CPA. The
environmental impact assessment process was outsourced but
was put on
hold pending the appointment of the consortium that would have dealt
with the Integrated Planning Process in
relation
to the Land Use and Service Plan. The outsourcing of the IDP was
delayed as a result of conflicts which wreaked the Rama CPA
Committee. A Capacity Building Process for the Rama CPA Committee and
other structures was concluded recently but did not yield any
improvement. On 22 August 2007 one Jeff Sebape ("Sebape"),
director responsible for the CPA administration within the Department
of Land Affairs compiled a memorandum in which he advised
the
Director General not to exercise his powers in terms of section 13 of
the CPA. The Director General was instead advised to
proceed in terms
of section 11(6) of the CPA. The said memorandum is attached to the
application as annexure ISS5.
10.
The Commission on Restitution of Land Rights acted in the spirit of
annexure ISS5 by referring the dispute within the Rama CPA
to Tokiso
Dispute Settlement Organisation. The mediation was not successful
owing to the fact that affected parties failed to identify
the issues
in dispute and did not agree on the mediation process.
11.
The mediation process was also strangled by the allegations that the
said Poo was not a bona fide beneficiary. This issue sidetracked
the
mediation process. The Applicant's office investigated the status of
the said Poo and came to the conclusion that the claims
that Poo was
not a bona fide beneficiary had no merit and furthermore he was
indeed a bona fide member of Rama Community. The Rama
CPA was
requested to consider mediation in the light of the fact that the
status of the said Poo had been determined.
12.
During June 2006 the Applicant's office enlisted the services of
business planners Bathupi Business Enterprises (Bathupi) which
identified the financial problems facing the Rama CPA such as
conflict of interests relating to the award of projects to
themselves,
the CPA Committee members holding dual roles and lack of
financial management expertise, failing to have an operation office
after
a period of eight years of existence and furthermore failure to
account to the community in respect of the running of the project.
13.
Before a report by Bathupi Business Enterprises could be made the
applicant
one
Modisele and Ntsoko attempted to hold a meeting with the said
Bathupi.
Bathupi
declined to attend the meeting after noting that there are conflicts
with the CPA Executive Committee and that it was not
clear that what
the status of the working group was. Bathupi also advised the said
Modisele and Ntsoko that they were employed
by the Department of Land
Affairs and for that reason could not hold any meeting with them.
14.
On 8 July 2006 the Rama CPA held a disciplinary enquiry into the
conduct of one Hans Carl Ntsoko who had been accused of fraudulently
using the Rama CPA name to raise a loan from Cuyvers, inciting
members of the Rama CPA to threaten committee members, acting on
his
own on matters affecting the interest of the entire Committee,
holding unscheduled meetings with the members of the Rama CPA.
At the
conclusion of the inquiry, the disciplinary proceeding the Committee
resolved to remove the said Ntsoko as chairperson and
a member of the
Rama CPA Committee. On 10 July 2006 the Rama CPA Committee wrote a
letter to the Applicant informing her about
the resolution they had
taken to remove the said Ntsoko from Rama CPA Committee.
15.
Before the said Ntsoko could be removed as the chairperson of the
Rama CPA, he wrote a letter to the Director General in which
he
stated that the Rama CPA was operating outside the parameters of
their Constitution and appealed to the Director General to
intervene,
particularly on the finances of the Rama CPA, lack of capacity on
financial matters and official to implement what they
were taught on
financial matters and conflict of interest relating to awarding
projects to themselves at the expense of the broader
committee and
violating the provisions of the Rama CPA Constitution. The letter
furthermore implored the office of the Director
General to intervene.
16.
On 13 September 2006 Ngubane and company audited the books of the
Rama CPA for the year ending 31 May 2003, 2004 and 2005. In
their
report they found, and reported, that an amount of R10 050,00 was
spent on salaries, R25 000,00 on bonuses, R73 353,00 in
respect of
security, R75 00,00 in respect of rent, R27 500,00 in respect of the
meetings and R48 635,00 in respect of trade expense.
These amounts
were regarded as being related to expenses that did not relate to
business of the Rama CPA and were correctly classified
as fruitless
and wasteful expenditures.
17.
This audit which was conducted in respect of the year ending May 2005
found many instances with qualified audit on aspects such
as land,
building and machinery which were not included in the financial
statements, no existence and rights of property stated
at R92 882 and
that accounting records were not properly maintained. On 22 September
2006 a lease agreement between Rama CPA and
Eckraal Quarries (Pty)
Ltd was concluded in terms of which the restored land was leased back
to Eckraal for an amount of R675 000,00.
The current Rama CPA is
using the premises at Eckraal Quarries as the operating office of the
First Respondent. This constitutes
an irregularity and conflicts of
interest. The affairs of the First Respondent should not be run from
the premises of the company
or entity which has benefited from the
lease agreement. This relationship compromises the interest of Rama
CPA Committee whenever
the lease agreement comes up for renewal.
18.
According to the Applicant the Rama CPA Committee would not be
objective if a choice had to be made between Eckraal Quarries
and
other competitors for the lease of the Quarries premises in the
future. The Rama CPA Committee has also irregularly raised
a loan in
the sum of R500 000,00 with Eckraal Quarries which has been invested
for the benefit of the community members and their
families. The
reason of the loan with Eckraal Quarries is also an instance of
conflict of interests arising from the awarding of
the lease
agreement to Eckraal Quarries by the Committee. The CPA Committee
ought to have approached the commercial banks or financial
institutions if it required bridging finances to run the affairs of
the First Respondent. This process would have entailed that
the
Committee constituting the First Respondent would have been informed
and consulted to ensure transparency in the financial
affairs of the
Respondents.
19.
On 9 May 2007 Rama CPA wrote a letter to the Applicant's office in
which they enquired as to the process regarding the progress
of
memorandum from the
Director
General concerning
the
resolution
of
the Rama CPA
Committee
and
the closing of the association bank account. On 22 May 2007
Khuduthamaga Rama CPA wrote a letter to the Applicant to inform her
that a delegation would be sent to her office to discuss, among
others, means that could help kept illegal activities, public notices
to the perpetrators to stop their activities, public notices to the
community to stop supporting illegal activities and to be furnished
with written reports of steps taken by the Applicant to stop the rot.
20.
On 15 October 2007 Rama CPA Committee wrote a letter to the
Department of Land Affairs (DLA) to inform the DLA that a resolution
had been taken to inform the Applicant that one Simon Poo was neither
born nor bred at Rama; that the Applicant's office should
resist from
holding meetings with him regarding Rama activities; that the said
Poo was not recognised by the Traditional Council
as their
spokesperson; that Poo is the stumbling block regarding the
settlement of problems affecting the Rama Community; that
he did not
understand the capacity in which he was attending meetings of the
Rama CPA, and that they required clarification regarding
the 537
hectares documents and other issues raised therein.
21.
On 9 March 2008 individuals calling themselves Rama Communal Property
Association Concerned Group wrote a memorandum to the
Applicant's
office in which they stated that a loan amount in the sum of R500
000,00 from Eckraal Quarries was invested in Terminus
Restaurant for
some Rama CPA Committee members against CPA Constitutional
guidelines; that all jobs done during 2006/7 went to
Rama CPA members
or their families; and that Rama CPA Committee has failed to
formulate and adhere to systems and procedures such
as tender
policies and guidelines for hiring or employment of staff
(procurement policies). Rama CPA had no management, knowhow
or
expertise to formulate and implement a settlement program, huge
amounts being spent on undelivered promises, the 2006/7 financial
statement showing quite alarming proportions of financial investment
by the Committee and that expenditure of 2006 had been done
without a
mandate from the Rama CPA.
22.
On 9 March 2008 one Diale wrote a letter to the chairperson and
secretary of
the
First Respondent and
informed
the
First
Respondent that they were
resigning due to the gross financial investment by the Respondent's
Committee, for instance of the R500 000,00 from Eckraal, gross
violation of the CPA Constitution (corrupt tenders for Rama CPA
Committee members) and nepotism (investment of the loan raised
from
Eckraal Quarries for the benefits of Rama CPA Committee and their
families).
23.
On 12 March 2008 the First Respondent wrote a letter to one Bradley
Makipi and one Deon Theron of the Applicant's office. This
letter
contained complaints which were raised in certain annexures attached
to the application. In the same letter they called
for the current
Rama CPA Committee to be dissolved and for a forensic audit to be
launched. They had styled themselves as the interim
committee. A
similar letter was written on 20 March 2008 and is also attached to
the Applicant's papers. On 10 July 2008 the Director
General wrote a
letter to the Applicant advising that the matter relating to Rama CPA
problems should be brought to a conclusion.
He indicated that he
would proceed to invoke the powers vested in him in terms of the
provisions of section 13 of the CPA and that
he would request the
Applicant's assistance in that regard.
24.
On 12 August 2008 the Applicant's officials held a meeting with the
First Respondent and the various components which had been
complaining about the conduct of the First Respondent. The concerned
groups are referred to were the Madidi Tribal Council, Khuduthamaga
Concerned Group and Rama CPA Executive Committee. The Khuduthamaga
Group raised the following concerns; the term of the Committee
that
had been elected had long lapsed and that the Committee members had
further co-opted certain people to the Ex-co in contravention
of the
Rama CPA; subsidy forms for houses were completed by people who were
not part of Rama CPA; there was a new development of
which the
Committee knew nothing about, no accounting projects; VAT had not
been paid since February 2004 and extensions of lease
with Eckraal
Quarries without the Committee's consent; the chairperson had not
been elected by the Committee and the stands were
illegally sold by
certain Committee members for an amount of R300,00 in respect of
residential
settlement.
25.
The Khuduthamaga proposed that the Rama CPA Committee should stop
calling mass meetings; using money and all activities; all
groups
should unite and form a committee to deal with problems; the CPA must
include the Khuduthamaga group in decision making
process; vote for a
new Committee Representative of the concerning group and that the
Director General should take over the administration
of Rama CPA.
26.
The Executive Committee responded by stating that there were only two
people who had been co-opted and that everyone qualified
for
subsidies; that the Rama CPA catered for the Rama people only and if
the concerned group had any concerns it should approach
the Rama
Executive Committee before approaching the Land Affairs or
complaining to the Applicant. One Nthite, the chairperson at
the
time, further stated that the concerned group should write down their
concerns and forward them to the Rama Ex-co. He further
stated that
the two houses that had been built in Rama were show houses of houses
that would be built in future in Rama. Rama Executive
Committee
further proposed that Khuduthamaga members should respect the elected
members of Rama CPA; that the concerned group should
not come on
board, that the Constitution be followed as a guiding document and
that people should change their mentality. The officials
from the
Applicant's office put forward these three proposals for the
dissolution of the executive, calling new elections and co-opting
other members. A proposition was made and accepted that the Director
General should take over the administration of Rama CPA. From
the
aforegoing it is apparent that the First Respondent is afflicted with
a multitude of irregularities and infighting which emasculate
it.
Some of this irregularities which justify the Respondent to being
placed under administration are as follows: Financial irregularities
as hi-lighted in the audited financial statements from 2004, 2006;
(2) the splitting of the claimant community into three factions
being
the Rama CPA Community, the Khuduthamaga and the Madidi Tribal
Council; (3) the conflict of interests as shown by the Rama
CPA
community members awarding contracts to themselves; and investing the
proceeds from the lease for their own benefits; (4) engaging
in acts
of nepotism
and
corruption
by
raising
a loan with Eckraal Quarries
in
the
sum
of
R500 000,00 for the benefit of the Rama CPA Committee members and
their families; (5) the Rama CPA Committee setting an office
of the
First Respondent at the premises of Eckraal Quarries thereby
compromising its own interests; (6) the unconstitutional removal
of
the previous chairpersons such as Poo and Ntsoko; (7) failure to
co-operate with mediators appointed by the Applicant's office
to
assist the Rama Community to resolve its own problems; (8) failure to
comply with the tax procedures by failing to submit tax
returns to
the South African Revenue Services; (9) failure by Rama CPA Committee
to convene the annual general meetings and to
elect new leadership in
accordance with the constitution of Rama CPA Committee; and that Rama
CPA has contracted developers to
construct show houses thereby
encumbering the restored land without being mandated by the general
body of the CPA being the Rama
Community.
27.
As I indicated earlier this application by the Applicant is opposed
by the Respondents through the opposing affidavit of one
Andy Nthite,
the incumbent chairperson of the First Respondent who resides at
house nr. 2248 Garankuwa. The said Nthite became
the chairperson of
the First Respondent on 9 December 2006. He contends that he has been
properly authorised to act on behalf of
the First Respondent and he
depose this affidavit by the resolution of the First Respondent which
was signed on the 11
th
day of November 2008. The said resolution merely states that the Rama
Communal Property Association Committee has given Mr. H Nthite
permission to stand in as its representative. It is not clear as to
whether the said H Mthite referred in the said resolution and
Andy
Nthite who deposed to the First Respondent's opposing affidavit are
one and the same person. Nevertheless there does not seem
to be any
dispute between the parties as to the identity of the two people.
28.
In his affidavit the said Nthite denied any allegations or
suggestions of any improper conduct by the First Respondent. He
concedes however that it is correct that there is a longstanding
dispute between certain individuals and the First Respondent but
contends that that does not relate to the improper conduct of the
affairs of the First Respondent. According to him such wrangles
relate
instead to those individuals who attempt to take over the control of
the
First Respondent for their own personal benefit. He emphasised that
the present members of the First Respondent have been duly
and
properly elected by the Committee and that they have endeavoured to
serve the Committee's best interest throughout. He confirms
in his
affidavit that the Applicant is the Regional Land Claims Commissioner
who has been appointed as such in terms of the provisions
of section
4 of the rest
Restitution of Land Rights Act, 22 of 1994
. He denied
however the correctness of all the allegations contained in certain
paragraphs of the application. He denied that the
Applicant was
properly delegated by the Director of Land Affairs. It is for this
reason that when this matter came before me on
28 July 2010 the
Respondents raised a point in
limine.
That
point in
limine
is
based on the point that the Applicant in these proceedings has not
been properly delegated to bring the application before the
parties
could deal with the merits, the Court had first to make a
determination of the Respondent's point in
limine.
29.
In her replying affidavit the Applicant has also raised a point in
limine
against
the
locus
standi
of
the said Andy Nthite to oppose the application. The Applicant has
noted that there are nine members who serve as the Executive
members
of the First Respondent. The resolution which the Respondent or the
said Nthite has relied on was signed by only four members
excluding
the deponent himself. The said resolution does not grant the deponent
the authority to act on behalf of the First Respondent
in this legal
proceedings. The Applicant contends therefore that the resolution is
defective and the deponent is not properly authorised
to act on
behalf of the First Respondent in this proceedings. It is important
to know that the resolution only refers to Rama Communal
Property
Committee and not Rama Communal Property Association. To the
Applicant this is a further indication that the said Nthite
is not
authorised or properly authorised to act on behalf of the First
Respondent. On this aforementioned basis the Applicant prays
that the
application shall succeed in terms of the orders referred to in the
notice of motion.
30.
The Applicant challenges the point in
limine
raised
by the Respondents and relies on annexure ISS1 which states the
following:
In
paragraph 4.1 thereof states that the office of the DG approves a
takeover of administration of Rama CPA through relevant court
procedures in terms of section 13 of the Act; paragraph 4.2 thereof
states that the DG further delegates such authority for the
purpose
of the Court application in terms of section 13 to the Regional Land
Claims Commissioner in terms of section 15(1) (a)-(b)
of the Act; and
paragraph 4.3 thereof states that the DG expresses in writing his
preparedness to intervene in the form of a concept
letter, on
letterheads he had attached to the memorandum; Deputy-Director, Mbuso
Majosi supported the recommendations by affixing
his signatures on
the memorandum on 10 July 2008. On this basis the Applicant contends
that he has been properly delegated by the
Director General in terms
of section 15 of the Act.
31.
Now I need to examine the documents on which the Applicant relies for
his
locus
standi
to
bring this application. That document entitled memorandum, goes on
and states that Recommendations for Rama CPA take over by
the
Director General in terms of section 13 of the Communal Property
Associations Act (Act 28 of 1996) based on regular conflicts
and
mismanagement of funds in the case of Rama Land Claim, instituted in
the Tshwane Metropolitan area Gauteng Province. Right
at the end it
contains in paragraph 4 recommendations. These recommendations are as
contained in the replying affidavit of the
Applicant. It is important
to note that this memorandum was prepared by Mr. APM Mpela, the
Acting Chief Land Claims Commissioner
and all three recommendations
contained in paragraphs 4.1, 4.2 and 4.3 were approved by the
Director General of the Department
of Land Affairs on 10 July 2008.
32.
Section 13 of the Act states as follows:
"13.
Administration,
liquidation and deregistration. -
(1)
A division
of
the Supreme Court or a Magistrates Court having jurisdiction in
respect
of
the area in which the property
of
the association is situated or the area in which the land which may
be acquired by a provisional association is situated, may,
on
application made by the Director General an association or
provisional association or any member thereof, or any other
interested
person, place the association or provisional association
under the administration
of
the Director-General or grant a liquidation order in respect
of
an association or provisional association, where the association or
provisional association, because
of
insolvency or maladministration or for any other cause is unwilling
or unable to pay its debts or is unable to meet its obligations,
or
when it would otherwise be just and equitable in the circumstances."
33.
As far as it concerns the provisions of section 13 of the CPA Act,
and with particular reference to the competent order that
a Court may
make and the
locus
standi,
there
are three requirements. For the purposes of
locus
standi,
as
it is the subject matter of the Respondent's point in
limine,
and
as it is the only subject the Court is at this stage concerned with,
the requirements of the said section are that; firstly,
the Director
General must bring the application; and secondly, the application
must be brought in the name of the Director General.
34.
In the evaluation of the Applicant's
locus
standi,
section
15 of the CPA Act is relevant. It reads as follows:
*15.
Delegation
of
powers and assignment
of
duties by Director-General:
(1)
The Director-General may-la) delegate to any officer
of
the Department
of
Land Affairs or, with the prior approval
of
the Premier
of
the province concerned, to any officer in the service
of
that provincial government, any power conferred upon him or her by or
under this Act, either generally or in a particular case;
(b)
authorise any such
officer
to perform any duty assigned to him or her by or under this Act."
35.
The provisions of the aforegoing section which obviously provide for
the
delegation
of some powers conferred on the Director General
by
the
Act;
do not afford the Applicant any remedy at this stage. It behoved the
Applicant to make sure that the application conforms to
formalities.
Where an Applicant is delegated to do something, especially where the
Governing Departments are concerned, and in
order to avoid
undesirable consequences, the Applicant must obtain such delegation
unequivocally and in specific terms in advance
of launching this
application. Accordingly the Applicant in this matter should have
ensured that she obtained a proper delegation
with specific terms
from the Director General before she could bring this application.
Accordingly and without being prescriptive
as to the manner in which
such delegation should be executed, it should be unambiguous that any
person who relies on the delegated
power or authority indeed has been
properly delegated to execute the mandate of the person who delegated
such powers.
36.
The affidavit of the Applicant lacks the necessary allegations that
are intended to establish her
locus
standi.
For
instance, as the relevant section provides that the Director General
may delegate to any official of the Department of Land
Affairs, it
must be clear from the averments that the Applicant is an officer of
the Department of Land Affairs or the Applicant
must expressly state
that in her capacity as an officer of the Department of Land Affairs
she has been delegated such powers. Where
no such averments have been
made in the affidavit and no other facts exist upon which an
inference can be drawn in such circumstances,
the Applicant will have
failed in her onus to establish that she has been delegated powers or
authority to perform certain deeds
by the Director General.
37.
The Applicant has also not complied with the further requirements set
out in the said section 15 of the CPA Act. Counsel for
the
Respondents argued, and I fully agree with him, that the Applicant
has not satisfied the Court that she has been properly delegated
to
launch this application. He developed his argument furthermore and
submitted that the Applicant could not rely on the approval
or the
recommendation of the Director General as contained in the document
referred to as annexure ISS1. I made the following order
on 28 July
2010:
(1)
The Respondent's point in
limine
is
upheld.
(2)
The
application is dismissed with costs.
P
M MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Applicant's
Attorneys:
The
State Attorney
Applicant's
Counsel:
Adv.
Notshe (SC)
Respondent's
Attorneys:
Potgieters
Inc. Attorneys
Respondent's
Counsel:
Adv.
JG Cilliers (SC)
Date
Heard:
28
July 2010
Date
of
Judgment:
5
October 2010