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[2024] ZAECMHC 20
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Department of Economic Development and Environment Affairs v Boyana and Another (5123/2022) [2024] ZAECMHC 20 (23 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO: 5123/2022
[REPORTABLE]
In
the matter between:
THE
DEPARTMENT OF ECONOMIC
DEVELOPMENT
AND ENVIRONMENTAL AFFAIRS
Applicant
And
BANDILE
BOYANA
1
st
Respondent
M
R NONXUBA
2
nd
Respondent
JUDGMENT
RUSI
J
‘
It
is rather odd that – 20 years into our constitutional democracy
– we are left with a statute book cluttered by laws
surviving
from a bygone undemocratic era remembered for the oppression of
people; the suppression of freedom; discrimination; division;
attempts to break up our country; and military dictatorships. . .’
[1]
[1]
These were the words of Van Der Westhuizen J in the end note of the
Court’s judgment in
Khohliso
[2]
in
which certain of the provisions of the Environmental Conservation
Decree 9 of 1992 (“the Decree” or “Decree
9”)
were under consideration. The Decree is old-order legislation which
was issued by the President of the former Republic
of Transkei upon
the recommendation of the Military Council and intended to apply only
to the Transkei Republic.
[2]
I must interpose to mention that it would be dishonest of this Court
not to acknowledge that legislation
such as Decree 9 regrettably
perpetuates the horrible apartheid policy of dividing the country
into homelands, let alone its effect
on the property rights and the
right to dignity and equality which are enshrined in the
Constitution.
[3]
Decree 9 is among other old order legislation which undeniably bears
an indelible mark of the
dreadful history of our country relating to
land distribution and tenure which is characterized by the system of
permissions to
occupy, a product of the multilateral discriminatory
land policy of the apartheid regime. Not to forget the spate of land
grabs
that have plagued certain pockets of the Republic of South
Africa as the populace tries in desperation to own land or obtain
secure
land tenure in order to establish various forms of human
settlements.
[4]
That being so, it must be stated clearly that the Decree is still in
force in the former homeland,
Transkei, by virtue of item 2 of
Schedule 6 read with section 241 of the Constitution, 1996 (“the
Constitution”) subject
to it being consistent with the
Constitution.
[3]
It bears
mentioning as well that no challenge to the constitutional validity
of Decree 9 serves before me.
[5]
The first respondent erected residential buildings and other
structures on a piece of land situated
in Ngcatha Locality, Cebe
Administrative Area, Centane, not far from the seashore (“the
land” or “coastal conservation
area”). When the
erection of the said building and other structures came to the
knowledge of the applicant, several interactions
including written
communication, were exchanged between the first respondent’s
legal representatives and those representing
the applicant.
[6]
At the center of such communication was the applicant’s
assertion that the first respondent had
illegally constructed the
building and structures on the land. The applicant contended that the
first respondent is carrying out
a development within a protected
coastal conservation area in contravention of section 39 of Decree 9.
This section of the Decree
provides, in essence, that all State land
situated on the landward side of the entire Transkei coast within a
strip of one thousand
meters (one kilometer) from the highwater mark,
is a coastal conservation area. Further in terms of this section, no
development
may be carried out inside the coastal conservation area,
by any person (including departments of State) save under authority
of
a permit issued by the Department of Agriculture, Land Reform and
Rural Development (“the Department of Agriculture”)
[7]
Based on these provisions of the Decree, the applicant demanded that
the first respondent cease
and desist from any further construction
of the structures and that he demolishes the structures that were
already erected on the
land, which demand the first respondent did
not heed.
[8]
In this application which was first brought on urgent basis on 18
October 2022 on the strength
of the provisions of section 39 of the
Decree, the applicant seeks an order restraining and interdicting the
first respondent from
carrying out any further construction on the
land, directing him to demolish the building and structures he
erected and rehabilitate
the land, as well as other ancillary relief.
[9]
The first respondent opposes the application on two grounds, the
first being that the urgency
with which it was brought was
self-created, and that on the merits, the application is
unsustainable in that the land on which
he erected the structures is
a family land which he obtained from the now deceased Mayongwana Fo
(“Mayongwana”) to
whom it was previously allocated by the
Native Commissioner in 1956 in terms of section 2(3) of Proclamation
26 of 1936 by means
of a land allotment certificate.
[10]
It is expedient that I interpolate to first deal with a few
preliminary issues. This application was launched
in October 2022
with its Part A as an application for urgent interim relief
interdicting the further construction of structures
on the land,
while in its Part B the applicant sought a
mandamus
directing
the demolition of the structures with the ancillary relief pertaining
to the rehabilitation of the land.
[11]
No interim order was granted, and it appears that of his own accord
the first respondent gave an undertaking
to stop any further
construction on the land pending the final determination of the
application. When the matter served before
me on 27 July 2023, it
was, therefore, for the determination of the final relief. Owing to
the lapse of time since the application
was launched, its urgency has
clearly fallen away and, therefore, I do not need to determine the
question of urgency. In any event,
none of the counsel representing
the parties argued the issue of urgency.
[12]
Secondly, even though the applicant cited the second respondent as
the person it alleged was in charge of
the construction of the
structures on the land, it was indicated on the day of hearing of the
application that the parties have
made common cause of the fact that
there was a misjoinder of this respondent. No further reference need
therefore be made to the
second respondent as a party to this
application save for refence to a confirmatory affidavit which he
filed and had not been struck
out, in which he confirms the contents
of the first respondent’s answering affidavit. Reference
henceforth, to “the
respondent”, shall be to the first
respondent.
[13]
Lastly, an application was made on the day of hearing of this
application by counsel for the applicant, Mr
Notshe
, for
condonation of the late filing of the applicant’s heads of
argument. The condonation sought was granted, unopposed by
the
respondent whom Mr
Nyangiwe
represented.
The
factual background
[14]
Ngcatha Locality, which is under Cebe Administrative Area in Centane,
is one of the localities which are
situated along the coastline of
the former Transkei. On the seashore of the same area are cottages
which are privately owned and
are mostly used as holiday homes.
[15]
During the period of 2018 and 2021, the respondent erected on the
land described by the applicant as a coastal
conservation area four
semi-subterrain plastic holding tanks, fencing a small structure
located near the gate of the fenced parameters
of the site, and a
large brick and mortar structure, which, at the time of the
application was still under construction. The large
brick and mortar
structure consists of thirteen rooms.
[16]
When a compliance and law enforcement officer of the applicant
discovered the construction of these structures,
the applicant
initiated written communication in which it advised the respondent at
whose instance the structures were constructed,
that the construction
that was carried out on the land was unlawful in that it was carried
out on the coastal conservation area
without authorization to do so.
The applicant also requested the respondent to cease and desist from
the alleged unlawful construction.
[17]
In spite of the written communication exchanged between the applicant
and the respondent in which the respondent’s
entitlement to
develop the site was traversed, the issue remained unresolved as the
respondent asserted his right to carry out
development on the land by
virtue of its alienation to him by Mayongwana.
[18]
When these engagements reached a dead end, the applicant instituted
criminal proceedings against the respondent.
At the time of this
application the charges against the respondent in the criminal
proceedings had been withdrawn provisionally.
The applicant persists
with its contention that the land on which the structures are erected
falls within the protected coastal
conservation area, and that the
respondent is barred from carrying out any development on it.
Legislation
framework relevant to this application
[19]
In order to facilitate ease of comprehension, it is necessary that I
set out the two pieces of legislation
that are of relevance to this
application.
[20]
Section 39 of Decree 9, on which the applicant relies for the relief
it seeks, provides:
“
(1)
There is hereby established on the landward side of the entire
seashore, excluding any national park
wildlife reserve, municipal
land sea-side resort, site occupied in terms of Proclamation No. 174
of 1921 or Proclamation No. 26
of 1936, privately owned land and
lease hold land, a coastal conservation area 1000 meters wide
measured –
(a)
in relation to the sea, as distinct from a tidal river and tidal
lagoon, from the high water
mark.
(b)
in relation to a tidal lagoon, from the highest water level reached
during ordinary storms
during the most stormy period of the year
excluding exceptional or abnormal floods.
(2)
Notwithstanding anything in any other law or in any condition of
title contained, no person
(including any department of state) shall
within the coastal conservation area save under the authority of a
permit issued by the
department in accordance with the plan for the
control of the coastal development by the military resolution of the
Military Council
–
(a)
clear any land or remove any sand, soil or vegetation;
. . .
(c)
erect any building;
. . .
(h)
construct any public or private road or any bridle path; or
(i)
carry on any other activity which disturbs the natural state of the
vegetation, the land
or any waters or which may be prescribed.
[21]
Furthermore, section 4 of Proclamation 26 of 1936 (“the
Proclamation”) provides as follows:
“
Permission
to Occupy Homesteads and Arable Allotments
(1)
The Native Commissioner may grant permission –
(i)
to any Native to remain in occupation of
such homestead and arable allotments as were in his lawful but
unregistered occupation
immediately prior to the commencement of the
Transkei Land Amendment Act, 1968;
(ii)
to any Native domiciled in the district to
occupy a homestead or arable allotment for domestic and agricultural
purposes respectively;
(iii)
to any missionary society or educational
authority to hold a homestead or arable allotment in a residential
area or an arable allotment
for occupation by paid Native Ministers,
preachers or evangelist, or teachers in its employ.
(2)
The issue of such permission shall be subject to the following
conditions:
(i)
The extent of land to be allotted under paragraphs (i) and (ii) of
subsection (1)
shall not without the approval of the Chief Native
Commissioner exceed one half morgen approximately in the case of a
homestead
and five morgen in the approximately in the case of an
arable allotment.
(ii)
Not more than one homestead and one arable allotment shall be
allotted under paragraph
(ii) of subsection 1 to any Native, provided
that if such a native is living in a customary union with more than
one woman, one
homestead and one arable allotment may be allotted for
the purposes of each household.’
[22]
Section 1 of the Proclamation defines “
allotment”
as a portion of land allotted from the commonage of a Native Location
on Crown land and held under the provisions of section 3
of section 4
of the Proclamation. Section 3 relates to all land occupied for
homestead or cultivation purposes continuously before
09 May 1908 or
by virtue of permission granted in terms of Proclamation 143 of 1919.
[23]
In terms of s 2 of the Proclamation, the Native Commissioner is
mandated to keep a register of all permissions
to occupy land granted
by him under section 4, and of all transfers, cancellations, and
temporary arrangements for the use of allotments.
[24]
The transfer of allotments under the Proclamation is governed by its
section 7 which provides,
inter alia
:
7(1)
Subject to the approval of the Native Commissioner, any Native may
transfer any allotment in his lawful
occupation to any other Native
domiciled in the district. If the allotment to be transferred has
already been registered, transfer
shall be effected by entry in the
land register opposite the entry of allotment to the transferor and
by endorsement on the duplicate
thereof and if no such registration
has taken place, permission shall be issued to the transferee.
(2)
In considering any such application the Native Commissioner shall
have regard to the conditions
prescribed in paragraph (ii) of
subsection (2) of section
four
.
[25]
Furthermore, section 9(2) of the same proclamation regulates the
devolution of the rights to occupy an allotment
upon the death of an
allotment holder, by providing as follows:
‘
Upon
the death of an allotment holder his rights to occupy such allotment
shall ipso facto be cancelled, but the widows or heirs
of the
deceased allotment holder shall have first claim of re-allotment of
the land should the Native Commissioner consider that
they require
same.’
[26]
It must be accepted that in the country’s constitutional and
democratic order, the administration of all
state-owned land vests in
the Department of Agriculture and all unsurveyed land is owned by the
state (subject to indigenous rights
of ownership as may be applicable
in a given case). Furthermore, and importantly, reference in the
above quoted provisions of the
Proclamation, to ‘Native”
must be interpreted to mean “person” and the “Native
Commissioner”
means the Magistrate.
Case
for the applicant
[27]
The applicant anchors its case on the provisions of the above quoted
Decree. In its founding affidavit deposed
to by its compliance and
enforcement officer, Mr De Villiers, the applicant alleges that the
land on which the respondent erected
the structures is a coastal
conservation area. The applicant further alleges that a compliance
notice that it issued to the respondent
informing him of his unlawful
conduct was set by the respondent at a naught.
[28]
According to the applicant, residential sites for recreational and
agricultural use on the coastal conversation
area are governed by
Proclamation 26 of 1936, in terms of which only a magistrate may
authorize use of this protected area for
such purposes. It is the
applicant's evidence further, that no traditional leader (a Chief or
Tribal Authority) has authority over
the allocation of sites on the
coastal conservation area.
[29]
The clear right to the relief it seeks, so the applicant says,
emanates from the authority vested in it to
manage and protect the
coastal conservation area. The applicant further asserts that the
prohibition contained in the Decree, of
the erection of structures in
the protected coastal conservation area coupled with the fact that
the respondent has defied the
applicant’s authority by
continuing with the construction of the structures on the land, forms
the basis of the relief it
seeks. It goes on to state that
since the respondent obtained no permit or authorization from a
magistrate for the development
of the site as required by the Decree,
he has acted unlawfully in carrying out the construction.
[30]
The applicant further alleges that it has reasonable apprehension of
harm that if the respondent’s
conduct is not interdicted it
will encourage neighbouring communities to unlawfully erect
structures on the coastal conservation
area with impunity.
[31]
It is the applicant’s contention further, that it has no
alternative remedy to protect the interest
it has in conserving the
land, and that even though applicant received a compliance notice,
the construction continued and as at
June 2022 and the structures
were near completion. Despite two further letters that were written
by its legal representatives to
the respondent demanding that he
stops the construction, he disregarded the said correspondence and
continued with the construction.
Case
for the respondent
[32]
Shorn of all verbiage, the respondent’s case is that the land
on which he has carried out the impugned
construction does not fall
within the protected coastal conservation area. This, he says, is so
because the land was allotted to
his grandfather Mapoyo Fo who used
it from the early 1930’s for ploughing mealies. According to
the respondent, the land
has since passed on to Mapoyo Fo’s
children. In 2018 Mapoyo Fo’s son, Mayongwana, gave the land to
him and his wife.
At the time of this application Mayongwana had
since died, as a result, the respondent annexed to his answering
affidavit a confirmatory
affidavit of Mayongwana’s widow,
Nogudile Mapoyo Fo, confirming the fact that her husband gave the
land to the respondent.
[33]
The respondent challenges the applicant’s stance of
interdicting the construction of the structures
on the land as
draconian approach which he says is inimical to the democracy
established by the Constitution of the land in terms
of which his
right to own property is protected. In this regard, he relies of
section 25 of the Constitution.
[4]
[34]
The respondent asserts that his construction and occupation of the
property flows from that of the Fo’s
who have occupied it and
used it from time immemorial for cultivating crops. He further
asserts that the land on which the impugned
construction was carried
out forms part, instead, of the commonage where no restrictions such
as the ones provided in the Decree
apply. The respondent further
alleges that the allotment of land certificate that was issued to
Mapoyo Fo for his occupation of
the land could not be located after a
diligent search.
[35]
It is the respondent’s evidence in this regard that despite
attempts made by him and his father-in-law,
Mr Mlandeli Nonxuba, to
obtain from the offices of the Department of Agriculture in Centane,
records of allotment of the land,
he could not obtain any assistance.
As a consequence, he relies on the confirmatory affidavits of the
former and current headmen
of Ngcatha Locality, as well as that of
Mayongwana’s widow, to prove his title to occupy the land. He
also relies on affidavits
deposed by the same persons before a member
of the South African Police Service on 02 and 03 February 2022,
respectively, confirming
the respondent’s assertions that he
obtained the land from Mayongwana and that it has previously been
used to plough mealie
fields.
[36]
Mr Mlandeli Nonxuba has also filed a confirmatory affidavit in which
over and above confirming what the respondent
states in his answering
affidavit, he states that the arable allotments that exist in Ngcatha
were allotted to the families of
that community at the time when both
residential and arable allotments were distributed to each household.
[37]
The respondent adds that in any event, the applicant is clothed with
investigative powers in terms of which
it would be able to
expeditiously obtain information regarding the ownership of the land
forming the subject of this application
and determine whether the
land is indeed part of the coastal conservation area which the Decree
protects. He further states that
these proceedings are calculated to
harass him and thwart a right he enjoys in terms of the Constitution.
According to the respondent,
this application was impelled by a
report that was conveyed to the officials of the applicant that he
was constructing a Bed and
Breakfast lodging facility on the land. He
denies that he was issued with a compliance notice by the applicant.
[38]
In
lieu
of an allotment certificate in relation to the land
forming the subject of this application, the respondent annexed to
his answering
affidavit an allotment of land certificate which was
issued to a certain Andrew Cotani.
Ex facie
this allotment
certificate, Andrew Cotani’s allotment is surrounded by
commonage on all sides and his allotment of land certificate
was
indeed issued by the Native Commissioner in terms of section 2(3) of
the Proclamation.
[39]
The respondent further states that Cotani’s mealie fields are
not, however, located where the Fo family’s
mealie fields are
located. According to the respondent, the Fo family’s mealie
fields are on the same land where he constructed
the structures
mentioned elsewhere herein, which he alleges was used by Mapoyo Fo to
cultivate crops since the early 1930’s.
[40]
Also annexed to the respondent’s answering affidavit are colour
copies of photographs of the structures
which form the subject of
these proceedings including Annexure B9, a photograph taken in 2019
depicting a flat roof structure not
far from the seashore, which was
allegedly constructed prior to the construction of the large brick
and mortar structure. There
are no tilled ploughing fields depicted
in Annexure B9. However, Annexure B8 depicts a piece of tilled land
which the respondent
describes as the area where mealies is ploughed.
It is not clear from the respondent’s answering affidavit when
the tilled
land depicted in Annexure B8 was photographed.
[41]
The respondent further takes issue with what he perceives to be a
‘systemic exclusion of black people
from owning the land on the
seashore’ in comparison to people of European dissent who,
according to him, built cottages on
the seashore and are generating
income from them as holiday homes.
[42]
Dealing with the existence of an alternative remedy available to the
applicant in protecting the land forming
the subject of this
application, the respondent states that the applicant has the powers
to arrest transgressors and could have
recourse to section 31
(h)
of the National Environmental Management Act, 107 of 1998 (“NEMA”).
For the sake of completeness, this section of NEMA
deals with
disclosure of information relating to threats to the environment, the
protection afforded to those who so disclose such
information and the
powers of the applicant’s officials to investigate matters
arising from the information so disclosed.
[43]
In its replying affidavit, the applicant contends that the
respondent’s failure to annex to his answering
affidavit proof
of his title to occupy the coastal conservation area in terms of the
Proclamation militates against him. The applicant
further states that
contrary to what the respondent asserts as the ostensible basis for
his occupation of the land on which he
carried out the impugned
construction, the right to occupy a site in terms of the Proclamation
cannot be passed from person to
person without the authority of
government.
[44]
In a supplementary affidavit filed on 15 December 2022 with leave of
court, the respondent states, in relation
to his alleged failure to
adduce proof of his permission to occupy the land, that he made
attempts to obtain its copy from the
offices of the Department of
Agriculture in Centane. At these offices, he was told by a certain Mr
Hlwempu that there was a fire
at some of the Department’s
offices where some of the documents burnt. Further according to the
respondent, Mr Hlwempu could
not say whether or not the land
registers burnt in the said fire.
[45]
A further possibility, which, according to the respondent, was
postulated by Mr Hlwempu, was that since there
was a stage when the
Department of Agriculture leased premises from a private entity in
the form of temporary shelter, some of
the Department’s
documents could have been left in those leased premises. He was
further told by Mr Hlwempu that he had attempted
to trace the owner
of the premises to no avail.
[46]
The respondent further makes reference to a receipt of payment of
R250.00 (two hundred and fifty rand) dated
21 November 2022; and a
letter purporting to be written by S.F Sodladla similarly dated, in
his/her capacity as the secretary of
Mac Vigar Traditional Council,
Centane. In the letter, S.F. Sodladla states the following,
inter
alia
(
all sic
):
“
This
is to certify that Dloko Nombalela ID NO 4[…] residing at Cebe
A/A The real owner of the land is Mapoyo Mayongwana ID
No 3[…]
who passed away in October 2021 and left the land to Ms Dloko –
Mapoyo and the community was consulted.”
[47]
According to the respondent, the receipt and letter by the secretary
of the Mac Vigar Traditional Council
entitled him to be issued with a
permission to occupy the land. As further proof of his title to
occupy the land, the respondent
further makes reference to a further
affidavit deposed to by Mayongwana’s widow on 21 November 2021
before a commissioned
member of the SAPS, in which she states the
following:
“
The
Mealiland that was given to me and my late husband ID 3[…] in
1956 is handed over to Bandile Brian Boyana who is related
to me as
my brother-in-law’s son. The Traditional Council’s Office
had been consulted and approved the matter. This
serves to confirm
that I consulted all my family members and we agreed unanimously
about the permanent handing over of ownership.”
[48]
Further confirmatory affidavits of the former subheadman of Cebe
Administrative Area, Mr Lunga Lister Longman
Reve and the current
headman, Mr Greon Mjeyile Papa, dated 13 December 2022, are annexed
by the respondent to his supplementary
affidavit as further
confirmation that he holds title to occupy the land.
[49]
Mr Reve’s confirmatory affidavit sets out the customary or
traditional process of allocation of sites
which begins with him
whereby the prospective site owners would submit their applications
to him. He would escalate the application
to the community who would
either approve or reject the application. While also stating that the
coastal conservation area is excluded
from his administration of land
allocation, he significantly states that the agricultural land which
belonged to the Fo family
forms part of the ‘communal land’.
[50]
Further according to Mr Reve, his allocation of sites as the former
headman of Cebe during the period of
2002 to 2022, he would not, in
the execution of his duties which included allocation of sites,
allocate sites which fell within
the coastal conservation area which
was clearly demarcated. In this regard this is what he states:
“
The
mealifields that belong to the people were not included in the
coastal conservation area. Once a site is allocated, the person
to
whom is allocated (sic) goes to Enqileni (Chief’s place) where
the permission to occupy were given. These permissions
to occupy were
previously given by the Magistrate’s offices. This law changed
and the permissions to occupy are now prepared
and issued by the
Department of Agriculture. A senior Agricultural Officer signs them.
. . The site shall remain the property of
that particular family and
will fall upon the heirs of the said homestead. There is no stage
where these permissions to occupy
reverted back to the government
after the death of the head of the homestead.”
[51]
According to subheadman Reve, the land under consideration in this
application would have been allocated
to the Fo family by his
predecessors, and upon the death of the land owner, the permission to
occupy the said land never reverted
to the government but ran in the
family of the deceased holder of a permission to occupy.
[52]
As at the date of hearing of this application, no confirmatory
affidavits of Mr Hlwempu and Mr Ndzimande
(Butterworth Office) were
filed, nor that of the secretary of Mac Vigar Traditional Council.
The
issues for the court’s determination
[53]
The issue to be determined by this court is a narrow one –
namely, whether the land on which the respondent
is building the
house and other structures belongs to the Fo family and is part of
the commonage; or whether it falls within the
coastal conservation
area as defined in Decree 9 of 1939.
The
parties’ submissions
[54]
Mr
Notshe
submitted that the respondent’s failure to
adduce proof of his title to occupy the land must inescapably lead to
the conclusion
that he undertook development on the coastal
conservation area unlawfully. He further submitted that the right to
occupy the land
asserted by the respondent which he claims flowed
from the permission to occupy issued to Fo is non-existent. In making
this submission
he relied of section 9(2) of the Proclamation,
stating that the right to occupy the land ‘died with Fo’.
[55]
That the land falls within the parameters of the coastal conservation
area, so the submission continued,
is apparent from the facts of the
application. On this score, Mr
Notshe
submitted that the land
will be excluded from the coastal conservation area only in terms of
the law. This, he said, was by means
of a permission to occupy issued
in terms of Proclamation 26 of 1936.
[56]
In response, Mr
Nyangiwe
submitted that the applicant has not
established that the land belongs to the government and therefore has
no basis to dispossess
the respondent of the said land. He took the
view that the applicant ought to adduce evidence of the stage at
which the land which,
on the version of the respondent, was allotted
to the Fo family, became part of the coastal conservation area. Mr
Nyangiwe
submitted that the respondent’s rights of
occupation of the land are protected by Decree 9 in that he occupies
it in terms
of section 26 of the Proclamation which in turn excluded
the land from the prohibition in section 39 of Decree 9. The
applicant,
so the submission continued, has not established the
requisites for the grant of a final interdict.
[57]
Regarding the provisions of section 9(2) of the Proclamation, Mr
Nyangiwe
submitted that they are unconstitutional in that they
deprive black persons of the right to own land and bequeath it in any
manner
they deem fit. In developing this argument, he further
submitted that no processes were invoked after Moyongwana’s
death
to cancel the permission to occupy the land, and therefore, the
applicant is barred from dispossessing the respondent or the Fo
family of their constitutional right to the land.
The
law
[58]
An applicant for a final interdict must establish three requisites,
all of which must be proven, namely, a clear
right which he seeks to
protect by means of the interdict; actual injury or a well-grounded
apprehension of injury if the interdict
sought is not granted; and
that there is no other alternative appropriate relief available to
him.
[5]
[59]
In order to succeed in this application, the first hurdle to be
surmounted by the applicant is establishing that
it has a clear right
which it seeks to protect. The meaning of ‘clear right’
in relation to an application for a final
interdict relates to the
degree of proof required to establish the right. This, in turn,
entails the existence of a right as a
matter of substantive law,
which means that the right must be one that is recognized by law. The
right asserted must, furthermore,
be clearly established by the
evidence.
[60]
The applicant must establish a reasonable apprehension of injury in
that a reasonable person faced with certain
facts would entertain
such apprehension of injury. While the applicant is not required to
prove that on a balance of probabilities
of undisputed facts that he
will suffer harm, he must show that objectively, his fear of harm is
well grounded in the sense that
it
is reasonable to apprehend that injury will result.
[6]
In
determining what an appropriate alternative remedy is, the
circumstances of each case must be considered.
[61]
These being application proceedings, and as held in
Plascon
Evans
[7]
,
final relief may be granted if the facts alleged by the applicant,
which the respondent admits, together with the facts alleged
by the
respondent justify the granting of such a final order.
Discussion
[62]
Even though the respondent denies that he was issued with a
compliance notice, what is clear is that his stance
in the common
cause communication that ensued between his legal representatives and
those representing the applicant has been that
of persisting with his
assertion of entitlement to use and occupy the land.
[63]
There is clearly a dispute of fact regarding whether the respondent
is entitled to carry out development on the
land and whether as the
respondent would have the court believe, the land forms part of the
commonage whose alienation and use
is not affected by Decree 9. Since
these are motion proceedings, final relief would be granted if this
Court accepts the facts
alleged by the applicant in so far as they
are admitted by the respondent, and those alleged by the respondent
in so far as his
version is plausible and credible.
[8]
[64]
That being the case, it is incontrovertible that allotments under
Proclamation 174 of 1921 were in respect of locations
established on
surveyed districts and subject to quitrent, whereas allotments under
Proclamation 26 of 1936 were on unsurveyed
districts of the
Transkeian territories, and in particular, on the commonage of a
Native Location on State land. In the case of
the 1921 Proclamation,
allotments on a surveyed land could also be held under a titled deed.
Otherwise, permissions to occupy could
be issued in each case.
[65]
It is settled law that the best evidence of ownership of immovable
property is the title deed to it.
[9]
In contrast, the system of permissions to occupy does not confer upon
an occupier ownership of the property occupied.
[66]
For the purposes of the present application, p
roof
that the respondent obtained a personal right which allows him to use
or occupy the land forming the subject of these proceedings,
would be
in the form of either a permission to occupy issued by the Department
of Agriculture, or, at worst, a register which the
Department of
Agriculture keeps in terms of section 2 of Proclamation 26 of 1936,
which would evince the allotment and transfer
of the site under
consideration.
[67]
It seems to me that what brings land within the parameters of the
protected coastal conservation area is,
in the first instance, its
situation in relation to the seashore. In terms of section 39 of
Decree 9, that would be a strip of
1000 metres (one kilometer) on the
landward side of the entire seashore.
[68]
The applicant’s principal allegation regarding the situation of
the land is that it does indeed fall
within the area defined in
section 39(1) of the Deree as a coastal conservation area. This
allegation is not pertinently dealt
with by the respondent. He does
not admit or deny it, but places reliance on his title to occupy the
land by virtue of its transfer
to him by Mayongwana before his death.
An allegation contained in the applicant’s founding affidavit,
which is not specifically
disputed or admitted ought to be accepted
by the court as correct. This is trite law.
[10]
[69]
A reading of the provisions of section 39(2) of the Decree does not
suggest an absolute prohibition of development
of the land situated
within the coastal conservation area. In terms of this section, any
development of the land falling within
the coastal conservation area
may take place only in terms of the authority of a permit issued by
the Department of Agriculture
in accordance with the plan for the
control of the coastal development.
[70]
The difficulty I have with the respondent’s version is that he
states without any specificity as to
location, that Andrew Cotani’s
mealie fields to which he makes reference in bolstering his
assertion, are not located where
the Fo family’s mealie fields
are located. It should perhaps come as no surprise that
ex
facie
Andrew Cotani’s allotment certificate the description
of the locality of allotment does not appear to be Ngcatha where the
respondent erected the impugned structures. This does little or
nothing to assist the respondent. I hold the view that the location
of Cotani’s and Fo’s mealie fields becomes important in
determining whether the land is part of the commonage or the
defined
coastal conservation area.
[71]
A relevant averment that appears from the confirmatory affidavit of
Mr Reve, is encapsulated as follows:
“
1.3
My duties as the headman were to deal with all the
community issues. To allocate sites to people. Such allocation
of
sites did not include the areas that are closer to the sea or are
within the coastal conservation are. The reasons thereof were
that
there was a perimeter fence that ran through separating the coastal
conservation area from the land which fall (sic) in the
village.
There are beacons that do separate the conservation area and the land
that belongs to the people. The mealifields (sic)
that belong to the
people were not included in the coastal conservation area.”
[72]
A pertinent observation to be made from this paragraph of Mr Reve’s
confirmatory affidavit in so far
as the location of the land in
question is concerned, is that he too does not specifically state
where in relation to the seashore
the community mealie fields are
situated. Nor does he specifically state that the land forming the
subject of this application
is in fact not situated close to the
seashore.
[73]
The averment that the current headman, Mr Papa, makes in this regard
in his confirmatory affidavit, is as
follows:
“
1.6
The agricultural land that belongs to the Fo family is part of the
land within the village. The beacons
separating the land that belong
to the community and the prohibited land are beyond the agricultural
land. There used to be a fence
that ran through and separated the
agricultural land from the prohibited land. The said fence has
through the years deteriorated
to the extent that some parts are not
visible. However, it is visible where the fence ran.”
[74]
While Mr Papa states that he confirms what is stated in the affidavit
of the respondent, nowhere does he
state in his narration of how the
land is allocated and used, that he is aware or became aware at some
stage, of a transfer of
the land from Mayongwana to the respondent. I
emphasize that such a transfer would have been registered by the
Department that
administers land use or in respect of which a
permission to occupy would be issued by the Department concerned
following the said
transfer.
[75]
Also important to note is that the receipt for payment of R250.00 as
the ostensible recordal of the fee that
allegedly entitled the
respondent to obtain a permission to occupy the land postdates the
year on which the alleged transfer from
Mayongwana to the respondent
took place. The land was given by Mayongwana to him in 2018, it has
been stated that Mayongwana died
in October 2021. However, and quite
surprisingly, the receipt of payment of R250.00 is dated 21 November
2022, some four years
after the alleged transfer and almost a year
after the launch of these proceedings.
[76]
Furthermore, the respondent makes no averment in his answering papers
duly supplemented, regarding the fact
that the alleged transfer was
de facto
registered by the magistrate or the Department of
Agriculture. Similarly, Mayongwana’s widow makes no mention of
the fact
that the transfer of the allotment from her late husband to
the respondent was registered with the already mentioned Department
or magistrate.
[77]
Even if it were to be accepted for a moment that the land on which
the respondent carries out the development
forms part of the
commonage, which fact the applicant strenuously denies, there would
have to be cogent proof of the fact that
the alleged transfer was
approved by the Department responsible for land administration. Such
approval is, in terms of section
7(1) of Proclamation 26 of 1936 a
requisite for the transfer whether such a transfer has been
registered on not. It is the Department
responsible for administering
land use which would in turn satisfy itself that the transfer is in
line with the conditions of allotment
set out in paragraph (ii) of
subsection (2) of section 4.
[78]
To his credit, what the respondent did when on his version, he went
in search of the land registers at the
Offices of the Department of
Agriculture, was a sensible thing to do. That being the case, the
explanation proffered by the respondent
regarding the steps he took
in securing from the applicant’s offices the records of the
transfer of the land from Mayongwana
to him amounts to no more than
hearsay evidence. This relates to what the respondent claims he was
told by the respective officials
of the said Department named Mr
Hlwempu of the Centane office and Mr Ndzimande of the Butterworth
office. The same is to be said
regarding the letter purporting to be
written by F.S Sodladla who is said to be the secretary of Mac Vigar
Traditional Council
on which the respondent places reliance.
[79]
Regard being had to the fact that the right of the respondent to
occupy and use the land is a contentious
issue in these proceedings,
it is not farfetched to conclude that evidence of Mr Hlwempu, Mr
Ndzimande regarding the alleged loss
of the applicant’s land
registers is crucial. As held in
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality
[11]
,
a court is entitled to expect the actual witness who can depose to
the events in question to do so under oath. Without doing so,
a
hearsay statement loses cogency.
[80]
As regards the ownership of the land, I hold the view that Mr
Nyangiwe’
s submission that it is has not been
established by the applicant that the land on which the respondent
built the structures belongs
to the state, is misplaced. From the
respondent’s own version, he took the steps set out in his
answering papers duly supplemented,
in order to obtain the land. This
must surely have been upon a realization and acceptance of the fact
that the unsurveyed land
in Ngcatha Locality belongs to the state.
[81]
In the present democratic era, most of the communal land continues to
be held by the government in trust
for the benefit of the
communities, albeit managed through traditional authorities, save for
cases where the community concerned
successfully lodged a claim for
the restitution of their land, or hold indigenous rights of ownership
to the land in question.
[82]
In any event, a common allegation made by the former subheadman and
current headman of Ngcatha (Mr Reve and Mr
Papa) regarding the land
is that as the traditional leaders of Ngcatha Locality they are the
ones who managed or administered the
use and occupation of the land
forming part of the commonage. It does not appear from any of
affidavits filed by these traditional
leaders that its community has
any indigenous ownership rights or title to any portion of the land
on which Cebe Administrative
Area is established. Instead, both these
traditional leaders state that the system of permissions to occupy
the land situated in
Ngcatha still applies, albeit that such
permissions to occupy are no longer issued by the magistrates but the
Department of Agriculture.
[83]
Likewise, Mr
Notshe
’s
argument that the respondent’s assertion of title to occupy the
land is misplaced as such a title became
ipso
facto
cancelled upon the death of Mayongwana, cannot stand. This is so for
three reasons – the first is that the cancellation of
Fo’s
right to occupy was not pleaded by the applicant in its founding
papers. It is settled law that an applicant must stand
or fall by his
or her founding affidavit.
[12]
In
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
[13]
,
Joffe J stated:
‘
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the
issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the
Court but also,
and primarily, for the parties. The parties must know the case that
must be met and in respect of which they must
adduce evidence in the
affidavits. In
Hart v Pinetown Drive-Inn
Cinema
it was stated that “where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration
in proceedings by way of action.
What might be sufficient in a declaration to foil an exception, would
not necessarily, in a petition,
be sufficient to resist an objection
that a case has not been adequately made out. The petition takes the
place not only of the
declaration but also of the essential evidence
which would be led at a trial and if there are absent from the
petition such facts
as would be necessary for determination of the
issue in the petitioner's favour, an objection that it does not
support the relief
claimed is sound.” An applicant must
accordingly raise the issues upon which it would seek to rely in the
founding affidavit.
It must do so by defining the relevant issues and
by setting out the evidence upon which it relies to discharge.’
(footnotes
omitted)
[84]
The second reason is that in terms of the section 9(2) of the
Proclamation, that right, if established
in casu
, would have
devolved upon Mayongwana’s widow when Mayongwana died. This
much is clear from the wording of section 9(2). Thirdly,
the defence
posited by the respondent is that there was a transfer of the
allotment to him by Mayongwana during his lifetime in
2018. Such a
transfer would have to meet the requirements of section 7 of
Proclamation 26 of 1936.
[85]
Regarding Mr
Nyangiwe
’s
submission pertaining to the constitutionality of section 9(2) of the
Proclamation, suffice it to state that
Uniform
Rule 16A requires a party raising a constitutional issue to prepare a
notice (a ‘Rule 16A Notice’) containing
a clear and
succinct description of the constitutional issue raised. Furthermore,
a
party raising a constitutional issue must raise the matter
appropriately in the affidavits or the pleadings.
[14]
[86]
That
has not happened in this case even though the respondent generally
asserts that his constitutional right enshrined in section
25 of the
Constitution is violated by the applicant’s attempt to deprive
him of his rightfully owned property under the guise
of this
application. In
South
African Transport and Allied Workers Union and another v Garvas and
Others,
[15]
the
Court held:
‘
[114]
Holding parties to pleadings is not pedantry. It is an integral part
of the principle of legal certainty which is an element
of the rule
of law, one of the values on which our Constitution is founded. Every
party contemplating a constitutional challenge
should know the
requirements it needs to satisfy and every other party likely to be
affected by the relief sought must know precisely
the case it is
expected to meet.’
[87]
Mr
Nyangiwe
’s submissions regarding the
constitutionality of section 9(2) cannot, at least for the present
purposes, be sustained.
[88]
That the applicant could, as an alternative remedy, call to aid its
investigative powers set out in section
35
(h)
of NEMA as suggested by the respondent is of no consequence for the
present purposes. In
Hotz
and Others v University of Cape Town
[16]
,
Wallis
JA (with whom Navsa, Bosielo, Theron and Mathopo JJA concurred) said
of the requisite of absence of an alternative remedy:
‘
[T]he
existence of another remedy will only preclude the grant of an
interdict where the proposed alternative will afford the injured
party a remedy that gives it similar protection to an interdict
against the injury that is occurring or is apprehended. That is
why,
in many cases a court will weigh up whether an award of damages will
be adequate to compensate the injured party for any harm
they may
suffer. There may also be instances where, in the case of a statutory
breach, a criminal prosecution, in appropriate circumstances,
will
provide an adequate remedy, but there are likely to be few instances
where that will be the case. . . The alternative remedy
must be a
legal remedy, that is, a remedy that a court may grant and, if need
be, enforce, either by the process of execution or
by way of
proceedings for contempt of court. The fact that one of the parties,
or even the judge, may think that the problem would
be better
resolved, or can ultimately only be resolved, by extra-curial means,
is not a justification for refusing to grant an
interdict.’
[17]
[89]
From the evidence of the applicant which the respondent has failed to
seriously challenge, it appears that
it was through its investigative
processes that the applicant challenged the respondent’s
development on the land, which
further culminated in the now
provisionally withdrawn criminal proceedings. On the respondent’s
own showing, none of these
processes would have yielded any
resolution to the matter since he persists with his claim of title to
occupy the land.
[90]
The respondent’s failure to produce the permission to occupy
the land and to file the confirmatory
affidavits of Mr Hlwempu and Mr
Ndzimande ineluctably leads to a conclusion that it is implausible
that Mayongwana or his father
Fo, was allotted the land on which he
has erected the impugned structures. What is plausible is that the
land on which the respondent
erected the impugned building and other
structure is a protected coastal conservation area.
[91]
Even if the respondent produced a permission to occupy that is in the
name of Mayongwana, the confirmatory
affidavit of Mayongwana’s
widow does not assist his case in the absence of an averment and
proof that the said transfer was
in any event approved by the
Department of Agriculture. The same is to be said regarding the
confirmatory affidavits of Mr Reve
and Mr Papa for the reasons I have
stated elsewhere in this judgment.
[92]
In the final analysis of the facts of the instant application, I make
a finding that the applicant has made
out a case for the relief it
seeks. In contrast, the respondent’s defence is untenable and
implausible that this court is
entitled to determine the application
on the acceptance of that of the applicant. For all the afore
going reasons, the application
must succeed.
Costs
[93]
The general rule is that the successful litigant must be awarded its
costs. There are no grounds for me to
deviate from this general rule.
Costs must follow the result.
Order
[94]
In the result, the following order shall issue:
1.
The respondent is interdicted and
restrained from continuing to erect and occupying structures on the
land falling within the coastal
conservation area located at Ngcatha
Locality, Cebe Administrative Area, Centane (“the site”).
2.
The respondent is directed to cease and
desist, forthwith from occupying and erecting structures on the site.
3.
The respondent is directed to vacate the
site forthwith.
4.
The respondent is directed to demolish and
remove the structures erected and established on the site.
5.
The respondent is directed to rehabilitate
the site by:
5.1
demolishing the structures built on it
within 20 days of this order.
5.2
appointing a suitably qualified person to
compile a rehabilitation plan for the restoration of the site to
remove the scars caused
by the respondent’s unlawful
development on it.
5.3
The respondent shall submit the
rehabilitation plan referred to in 5.2 to the applicant within 20
days of this order, which plan
the applicant may approve or decline.
5.4
In the event of the applicant approving the
rehabilitation plan, the respondent shall appoint a suitably
qualified person to execute
the plan so approved.
5.5
Upon completion of the rehabilitation, the
respondent shall inform the applicant in writing of such completion,
whereupon the applicant
shall inspect the site in order to certify
the appropriateness of the rehabilitation so completed.
6.
The respondent shall pay the costs of the
application.
L
RUSI
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the applicant
Adv.
VS Notshe SC
Instructed
by
The
Office of The State Attorney
Broadcast
House
94
Sisson Street
MTHATHA
Counsel
for the respondent
Adv.
X Nyangiwe
Instructed
by
MASETI
INCORPORATED
c/o
26 Madeira Street
MTHATHA
Date
heard
20
July 2023
Date
delivered
23
April 2024
[1]
Khohliso
v S and Another
(CCT
12/14)
[2014] ZACC 33
;
2015 (2) BCLR 164
(CC);
2015 (1) SACR 319
(CC) (2 December 2014).
[2]
Op
cit
para 53.
[3]
Khohliso
supra, para 47 (also, by virtue of the savings provisions of section
229 of the Interim Constitution, Act 200 of 1993 and;
Barnett
and Others v Minister of Land Affairs and Others
2007(6) SA 313 (SCA) para 14;
Wildlife
Society of Southern Africa & Others v Minister of Environmental
Affairs and Tourism of the RSA & Others
[1996] 3 All SA 462
(Tk) in which PICKERING J directed the
national Minister of Environmental Affairs & Tourism to enforce
the provisions
of s 39(2) of the Decree in relation to the illegal
building of cottages and roads in the coastal conservation area. The
court
furthermore interdicted four Chiefs or Headmen of certain
administrative areas from purporting to grant rights in land which
formed part of the territory that formerly constituted the Transkei.
[4]
The
Constitution of the Republic of South Africa, Act 108 of 1996.
Section 25 of the Constitution provides, inter alia, that no
one may
be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.
[5]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[6]
Free
State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining
Co Ltd
1961 (2) SA 505
(W) at 515;
Minister
of Law and Order and Others v Nordien and Another
1987 (2) 894 (AD) at 896F-I and all authorities cited therein;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
(462/07)
[2008] ZASCA 78
;
[2008] 4 All SA 225
(SCA);
2008 (5) SA 339
(SCA) (30 May 2008), para 21.
[7]
Plascon-
Evans Paints Ltd v Van Riebeck Paints
(Pty) Ltd 1984(3) SA 620 (SCA).
[8]
Airports
Company South Africa Soc Ltd v Airports Bookshop (Pty) Ltd t/a
Exclusive Books
,
2017 (3) SA 128
(SCA) para 26.
[9]
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
1993(1) SA 77 (AD).
[10]
United
Methodist Church of South Africa v Sokufudumala
1989(4) SA 1055 (O).
[11]
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality
(1185/2016)
[2017] ZASCA 118
(22 September 2017), para 31.
[12]
Mashamaite
and others v Mogalakwena Local Municipality and others, Member of
the Executive Council Coghsta, Limpopo and another
v Kekana and
others
[2017]
ZASCA 43
;
[2017] 2 All SA 740
(SCA) at para 21.
[13]
1999
(2) SA 279
(T) at 323F – 324J.
[14]
National
Director of Public Prosecutions v Phillips & Others
2002 (4) SA 60
(W) at para 37.
[15]
2013
(1) SA 83
(CC) para 114.
[16]
Hotz
and Others v University of Cape Town
(730/2016)
[2016] ZASCA 159
;
[2016] 4 All SA 723
(SCA);
2017 (2) SA
485
(SCA) (20 October 2016).
[17]
Op
cit
,
para 36.