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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 2925/2024
In the matter between:
JOHANNES JOSHUA BEZUIDENHOUT First Applicant
HEROLD BEZUIDENHOUT Second Applicant
JAN BERGH Third Applicant
NUVELD FARMING EMPOWERMENT ENTERPRISE Fourth Applicant
(PTY) LTD
v
MINISTER FOR AGRICULTURE LAND REFORM AND First
Respondent
RURAL DEVELOPMENT
CHIEF DIRECTOR: WESTERN CAPE PROVINCIAL SHARED Second
Respondent
SERVICES CENTRE
DEPUTY DIRECTOR GENERAL FOR AGRICULTURE Third
Respondent
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LAND REFORM AND RURAL DEVELOPMENT
LUBABALO MBEKENI Fourth Respondent
HENDRIK BOOYSEN Fifth
Respondent
LUCY NDUKU Sixth
Respondent
Coram : Salie, J
Date of Hearing : 4 March 2024 (10H00-13H30)
Written Judgment delivered : 4 March 2024 (16H30) - Court 28
Counsel for Applicants : Adv. Geoff Budlender SC
Counsel for First to Fourth Respondents : Adv. Khanyisa Ngqata
Counsel for Fifth and Sixth Respondents : Adv. Madoda Titus
JUDGMENT DELIVERED ON MONDAY, 4 MARCH 2024
SALIE, J:
1] This is an application that came before me on the urgent duty roll, argued earlier
today. The matter stood down until 16h00 (after arguments were submitted by counsel
for the applicants, 1 st – 4th respondents and the 5 th & 6th respondents respectively) for
the handing down of this judgment and order. This judgment is ex tempore and of
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necessity brief. The farm which forms the subject matter of the application is Plateau
Farms, a state-owned farm near Beaufort West. It comprises three farms, but same has
been operating as one unit.
2] The relief sought from this court is two -fold, that being, firstly an order to restore
possession of two pieces of land to the applicants and secondly to interdict the 1 st to 4th
respondents (from allocating any part of the farm to anyone, pending the finalisation of
the review application presently pending between the applicants and the 1 st to 3 rd
respondents.) Nuveld Farming Empowerment Enterprise (Nuveld) has been in
possession of Plate au farms and farming it since 2017. In 2020 an allocation process
was conducted by the delegated committee for the department and in terms of which it
was recommended that a 30-year lease be granted to Nuveld.
3] In 2023 the aforesaid recommendation was rejected by the then Chief Director,
the 4 th respondent, Mr. Mbekeni. This gave rise to the review application presently
pending between the applicant and the 1 st to 3 rd respondents which was launched in
April 2023. It suffices to state that the review will be heard by this Court on a future
date.
4] The genesis of this application lies in the 4 th respondent having granted
permission to the 5 th and 6th respondents (Mr. Booysen and Ms. Nduku) to occupy part
of Plate au. The applicants ’ gripe is that 4 th respondent did so without following the
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processes required by the department ’s own policies and consequently, the summary
actions which followed must be see n as having sp oliated the peaceful and undisturbed
possession of the applicants. The applicants submit that they possessed exclusive use
of the keys to the locks on the gates to the two properties in question (Dassiesfontein
and Dassies 2) and which had been locked by them at the time of the acts of spoliation,
that the respondents broke the locks and put their own locks on the gates excluding
therewith the applicants use and possession of the property and they had been grazing
and farming the said farm. The taking of the property by the department and the 5th and
6th respondents were without any legal process and court order.
5] Consequently, the applicants seek a mandament van spolie and an interdict
preventing any official of the department from allocating (and thereby implementing)
parts of Plateau pending the outcome of the pending review application.
6] In its opposition, the 1 st to 4th respondents submitted that the application is not
urgent and that there is no basis for this court to find that its conduct in changing the
locks and giving the 2 farms to the 5 th and 6th respondents is unlawful and consequently
that no act of spoliation had occasioned. Furthermore, it also submitted that the history
of events in relation to the rights of the farms and other background facts are salient to
the determination whether the department had acted unlawfully. The argument follows
that, given the past injustice to the 5 th and 6th respondents, the allocation to them were
both necessary to address the past injustice committed to them respectively when
sometime during 2017, both Nduku and Booysen were unfairly and harshly removed
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from the farm and so to honour the department’ s land reform objectives. Similarly, the
decision to allocate the Plateau farms to other beneficiaries is not only an imperative
goal incumbent upon the state departments but so too to effect same within a speedy
process. Further to this, counsel for the state argued that it is not so that Nuveld had
been in peaceful and undisturbed possession of the Plateau farms as a whole unit and
that it would not prejudice them that 2 of the sub-farms had been allocated to the 5th and
6th respondents. Counsel pointed out that the caretaker agreement in terms of which
Nuveld had been farming on the Plateau farms had expired some years ago and this left
the department to allocate and physically give possession to other beneficiaries.
7] Counsel for the 5 th and 6 th respondents submitted that the applicants are non -
suited from having it being found by the court to being urgent as it had unduly truncated
the time-table, giving the respondents less than 2 days to respond to a founding affidavit
well in excess of 200 pages. The argument follows that on the applicable principles of
urgency, the applicant’s conduct falls short of alleging urgency and on that basis the
application ought to be struck. It was also pointed out that as the applicant’s replying
affidavit had not been properly commissioned, the applicant’s case before the court thus
rests on an uncontested version of the 5 th and 6 th respondents and consequently, on
that basis alone, ought to be dismissed with costs. Lastly, counsel argued that as the
applicants had changed the locks after the initial act of spoliation, it had thus lost its
right to approach this court on the basis of spoliation.
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8] In determination of this application, moreover, the relief sought for spoliation, the
court need to be satisfied that the applicant was in peaceful and undisturbed possession
of the farms and that it was unlawfully deprived of possession by the respondent. The
act of unlawfulness is underpinned by the lack of consent of the applicant to be so
dispossessed and without any due legal process. The right to relief under the
mandament van spolie arises from deprivation of possession otherwise than through
legal process.
9] It is trite law that one is not allowed to take the law into one’s own hands. Any
self-help action in dispossessing another forcibly or wrongfully against the possession of
property, will upon application to court be restored as a preliminary to any inquiry as to
the merits of the dispute. The main purpose of the mandament van spolie is to preserve
public order by restraining persons from taking the law into their own hands and
inducing them to resort to the arms of the law for the pursuit of due process.
10] As a possessory remedy, it is exclusively directed at restoring the factual position
as it was before the dispossession, which is determined separate and distinct from an
investigation into the rights of the parties. It is by its very nature urgent and on the
chronology of events herein, I am satisfied that the matter is properly on the urgent roll
and in fact urgent.
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11] Counsel for the state argued that the issue of possession is not common cause.
I have difficulty with this submission. At various junctures the state does not dispute
that the Plateau farms operate as a unit and that the 3 farms need to function as such to
be viable. This is contained in its own reports. As such, I cannot accept that Nuveld
had no real possession of the 2 farms in question. Mr. Bezuidenhout, the first applicant,
had possession of the keys to both the gates of Dassiesfontein and Dassies 2 when the
spoliations took place on 17 January 2024 and 7 February 2024 respectively. It is not
disputed that the respondents proceeded to cut the locks on the gates to the two
portions in order to enter and take possession of the propert ies and thereafter replaced
it with their own locks. It is also not disputed that grazing of cattle by Nuveld over the
past 7 years took the form of moving it to different portions of the farms to allow grazing
areas to “rest” and recultivate. The permission by the state to Nuveld to farm on the
Plateau farms was not limited to a certain portion only and it also received a quarterly
report from 2017 until December 2023 over the full Plateau farms as Nuveld was
required to do in terms of the caretaker agreement. Furthermore, Mr. Mbekeni called on
the applicants in February 2023 for their consent to allocate the farms in question to
other persons. I find it problematic to accept in these circumstances that Nuveld had
not held possession of these farms nec vi, nec clam et nec precario (without force,
secrecy or permission) and that its possession was in fact peaceful and undisturbed.
12] I further find state Counsel’s submission that the state was not required to follow
due process, or alternatively that their internal commissions and reports amounted to
following due process to warrant critique. I hold this view, given that the possession by
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Nuveld cannot be reasonably disputed and that a change of heart so to speak on the
part of the department apropos the allocation process cannot amount to affording the
respondents the right to entrench upon the possession of the applicants as the
possessor and to evict them from the farms in question. The historical background of
the Plateau farms, injustices suffered by other beneficiaries including the 5 th and 6 th
respondents, land reform objectives and the failure to have done so in the past by the
department, are relevant elsewhere but certainly not in this determination.
13] The argument by counsel for 5 th and 6th respondents that the replying affidavit is
fatally defective is considered as follows. The affidavit, albeit titled and purported as
that, had not been commissioned in terms of regulation 4(2) of the Oaths Act.
Accordingly, it is not before the Court under oath. Mr. Budlender in reply conceded this
to be the case, a s that same resulted as a mishap during the efforts to have same
commissioned at the police station. However, as I see it, the averments supporting the
facts upon which the relief is sought, are set out in the founding affidavit and the
material aspects had been deal with in the reply thereto in the replying affidavits to the
answer of the state respondents. The impugned actions overlap in both set of papers
and are duly dealt with under oath.
14] The 5th and 6th respondents also submitted points in limine that the non-joinder of
the trusts which the 5th and 6th respondents respectively represent is fatal as well as the
failure to join the other 79 beneficiaries given that they have an interest in the allocation
process and would have the right to intervene. I am not persuaded that these
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submissions bear merit. My position is fortified by the fact that throughout the papers,
Ms. Nduku and Mr. Booysen a re referred to as the beneficiaries and referred to by their
names specifically by both the applicants and all the respondents. So too are the acts
of spoliation committed by Mr. Mbekeni, Ms. Nduku and Ms. Booysen. I fail to
understand the argument that no legal recourse can be gained as against them without
the trusts whom they represent, that being in particular, Ms. Nduku and Mr. Booysen.
Furthermore, it is so that there are 79 other beneficiaries. However, the latter has
nothing to do with the spoliation application. As it relates to them not having been
joined to seeking an interdict as per prayer 6.2 of the notice of motion (restraining
allocations of any p ortion of Plateau Farms to any person pending the review ), it is
significant a fact that the review application is pending between the applicants and the
1st to 3 rd respondents. This interdict is sought to preserve the status quo whilst that
matter is being heard and determined. The relief sought is interlocutory to that relief
being sought as between the applicant and the state parties herein. I cannot see it nor
can it be c onsidered a fatal non -joinder as it seeks the preservation of the process of
that review.
15] On the facts and circumstances of this case, I can find no basis upon which to
deviate from the principle that the despoiled applicant be restored possession before all
else, (spoliatus ante omnia restituendes est) and in the circumstances the applicant is
justified in its application for an order restoring possession of the farms, described as:
15.1] Farm Dassiesfontein No.73 Portion 6 (South Dassiesfontein); and
15.2] Farm Dassiesfontein No. 73 Portion 5 (Portion 1 North Dassiesfontein).
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16] Secondly, I am satisfied that on the facts before me that it is evident that onward
allocation by the state respondents would mean that the decision would be implemented
in the same manner as had been done in the manner herein. This would undermine the
pending review proceedings. Accordingly, this would be an exceptional circumstance
where the threatened and intended actions (namely, future spoliations) by the state
respondents must be curtailed so as to ensure that the subject matter forming the basis
of the pendi ng review does not become moot , undermined or interfered with which
would otherwise most probably hamper the review Court from making a determination in
the review proceedings. It follows that the review proceedings need be finalized and
heard as soon as possible.
17] As regarding costs, I am satisfied that nothing on the papers before me warrants
me to deviate from the normal costs order and accordingly, costs must follow the result.
18] In the circumstances and for the reasons aforementioned, I make the following
order:
“(i) The applicants’ possession of the properties referred to in 12.1 and 12.2
are herewith declared to be restored ante omnia with immediate effect;
(ii) The first to the fourth respondents and the officials of the Department of
Agriculture, Land Reform and Rural Development is interdicted and
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restrained from allocating (and implementing such allocation) in respect of
any allocation of any portion of Plateau Farms (being the various portions
of the farms listed in annexure A hereto) to any person, pending the
finalisation of the review proceedings under case number 6553/2023.
(iii) The applicants’ costs of suit shall be paid by the First to Third
Respondents, jointly and severally, the one paying the other to be
absolved.”
SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE