Dihlabeng Local Municipality v All Unidentified and Unknown Persons Occupying or Intending to Occupy Bakenpark Extension 7 (Vogelfontein) Bethlehem and Others (3673/2021) [2022] ZAFSHC 63 (25 March 2022)

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[2022] ZAFSHC 63
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Dihlabeng Local Municipality v All Unidentified and Unknown Persons Occupying or Intending to Occupy Bakenpark Extension 7 (Vogelfontein) Bethlehem and Others (3673/2021) [2022] ZAFSHC 63 (25 March 2022)

IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:   NO
Circulate
to Magistrates:        NO
Case no: 3673/2021
In the matter between:
DIHLABENG
LOCAL MUNICIPALITY
Applicant
and
ALL UNIDENTIFIED AND UNKNOWN
PERSONS
OCCUPYING OR INTENDING TO
OCCUPY
BAKENPARK EXTENSION 7
(VOGELFONTEIN)
BETHLEHEM
First Respondent
ALL UNIDENTIFIED AND UNKNOWN
PERSONS
OCCUPYING OR INTENDING TO
OCCUPY
BAKENPARK EXTENSION 5
(VOGVELFONTEIN)
BETHLEHEM, EXCLUDING PERSONS
IDENTIFIED IN ANNEXURE “A”
TO THE NOTICE
OF
MOTION
Second Respondent
MOHLOKI MTHOMBENI
Third Respondent
THE DEPARTMENT OF HUMAN
SETTLEMENTS,
FREE STATE PROVINCE
Fourth
Respondent
JUDGMENT
BY:
MTHIMUNYE, AJ
HEARD ON:
17
FEBRUARY 2022
DELIVERED ON:
25 MARCH
2022
This judgment was handed down
electronically by circulation to the parties’ representatives by
email, and release to SAFLII. The
date and time for hand-down is
deemed to be 12:00 on 25 March
2022.
[1]
This a two-part application by Dihlabeng Local
Municipality (“the
Applicant”) in terms of which it seeks primarily a final order of
eviction the first and second respondents
from
Bakenpark Extension
7
and
Bakenpark Extension 5 (Vogelfontein), Bethlehem
(hereinafter referred to as “the Municipal Properties”); and
secondarily confirmation of the interim interdict against the
respondents.
In addition, the applicant seeks confirmation of the
rule nisi issued by this division on 7 October 2021.
[2]
The Applicant is Dihlabeng Local Municipality,
a municipality duly
established in terms of
section 12
of the
Local Government: Municipal
Structures Act, 117 of 1998
and the owner of the properties mentioned
above, which properties are the subject of this application.
[3]
The First Respondents are unidentified and
unknown persons currently
occupying or intend to occupy Bakenpark, Extension 7 (Vogelfontein)
Bethlehem.
[4]
The Second Respondents are unidentified and
unknown persons who
occupy or intend to occupy Bakenpark Extension 5 (Vogelfontein)
Bethlehem, excluding persons reflected on
Annexure “FA”
to the founding affidavit, who moved to Bakenpark, Extension 5
(Vogelfontein), Bethlehem since May 2021.
[5]
The Annexure referred to above is also referred
to as Annexure “FA1”
to the Notice of Motion and it contains names of occupants of
Bakenpark Extension 5 to whom this application
does not apply since
their occupation is the subject of another application before this
court under case number 1214/2021.
[6]
The Third Respondent is Mr Mohloki Kantoro
Mthombeni, an adult male
person who is an elected Councillor of Dihlabeng Local Municipal
Council and a proportional representative
of the Economic Freedom
Fighters Party. The Applicant submits that the third respondent
entices, invites and/or incites persons to
move into and to occupy
the municipal properties.
[7]
The Fourth Respondent is the Department of
Human Settlements, Free
State Province, a department responsible for human settlements. No
relief is claimed against the fourth respondent
and is only joined
herein as it might be called upon by the court and / or respondents
to provide emergency alternative land in Dihlabeng
area.
[8]
This matter has an intertwining history dating
back to March 2021
where the Applicant approached this court on an
ex-parte
basis
for an order stopping occupation of Erf 1273 Bakenpark, Extension 5
(Vogelfontein), Bethlehem on an urgent basis. An interim
order was
granted on 17 March 2021 by my sister Wright AJ and a rule nisi was
issued for the respondents to show cause on 6 May 2021
why the order
was not to be made final. On 27 May 2021, my sister Daniso J made the
interim order final.
[9]
Subsequent to the above order, the respondents
brought an application
to rescind the orders of 17 March 2021 and 27 May 2021. The
rescission application is a separate application
under case number
1214/2021.  On
14 July 2021, my brother Mhlambi
J granted the respondents an order
suspending     the aforementioned orders pending the
finalisation of the rescission
application.
[10]
Subsequent to the rescission application, in the period between
6-7
August 2021, other persons who are now cited herein as first and
second respondents, invaded the same portion of land which forms
the
subject of the rescission application. The applicant then brought
this application in respect of the invasion that took place
between
6-7 August 2021. As stated in Para [4] above, this application
excludes persons identified in Annexure “
FA1”
to the
notice of motion in the rescission application.
[11]
The applicant submits that this land is earmarked for human
settlement of persons on the municipality’s lists in accordance
with the National Housing Needs Registry (NHNR). By invading this
land, the first and second respondents are ‘
jumping the queu
e’
of other       deserving applicants as the
land has already been allocated to qualifying applicants.
[12]
On 12 August 2021 this matter served before my sister Naidoo
J who
granted an interim order in respect of Part A of the application
(dispensing with Uniform Rules for applications of this nature
and
authorisation of the manner of service), as well as the Rule Nisi
calling upon the respondents to show cause if any, on 9
th
September 2021 why the interim order in terms of Part B should not be
made final.
[13]
After service was effected in terms of the order of my sister
Naidoo
J, the respondents, filed a Notice of Intention to Oppose on 08
September 2021. The following day i.e. 09 September 2021 the
matter
served before my sister Wright AJ, who extended the Rule Nisi to 23
September 2021, on which date my brother Loubser J extended
it to 7
October 2021. On 05 October 2021, the respondents then filed a Notice
in terms of Rule 7(1) and (4). When the matter served
before my
sister Van Rhyn AJ on 7
October 2021, she granted an order
postponing the matter to the opposed roll of 25 November 2021 and
directing the respondents to
file their answering affidavits on or
before 28 October 2021.  The applicant was directed to file its
replying affidavit on
or before 11 November 2021. She also confirmed
the rule nisi issued by Naidoo J on 12 August 2021. I deal with the
Rule 7 (1) and
(4) in a separate paragraph below.
[14]
Instead of filing its answering affidavit on or before 28
th
October 2021 in accordance with Rhyn AJ’s order, the respondents
filed same on 23 November 2021, accompanied by a condonation
application
for late filing.  This was literally two days before
the matter was set down to be heard. Consequently, the applicant
could
not have been able to file its replying affidavit timeously and
as such the matter was postponed to 10 February 2022 by my sister
Daniso J, with the rule nisi extended to the same day. Costs were
reserved. The parties subsequently agreed to further postpone the
matter to the opposed roll of 17 February 2022 to accommodate
Counsel. Daniso J also directed the applicant to file its
replying
affidavit on or before 15 December 2021. The Applicant
failed to file its replying affidavit on the said date and only did
so on
8
th
February 2022 an asked for condonation. This
time the replying affidavit was deposed to by Busa Petrus Molatseli,
in his capacity
as the Municipal Manager appointed on 10 December
2021.
[15]
The matter then served before me on 17
th
February 2022. At
the onset of the hearing, Counsel for the applicant raised four
preliminary issues/points
in limine
viz
. Rule 7 Notice,
costs occasioned by the postponed on 25 November 2021, condonation of
the late filing of the answering affidavit
by the respondents and
condonation of the late filing of the
replying
affidavit by the applicant. I deal with these in the
paragraphs below.
[16]
During submissions in the main application, concessions were
made by
both Counsels for the applicant and the respondents in respect of the
main application and an agreement was reached that
this court may
make an order in terms of the draft order submitted by the applicant,
taking into consideration concessions made in
favour of the
respondents, amongst others, provision by the applicant of
alternative accommodation with portable water and necessary
amenities
to the first and second respondents.
[17]
What was left for this court to determine were the four preliminary
issues.  I now deal with these individually:
Rule 7 challenge
[18]
The applicant’s founding affidavit was deposed to by Mr Lekhetho
Isaac Mokhathle on 12 August 2021. The respondents disputed the
authority of Peyper Attorneys to act on behalf of the applicant in
these proceedings and filed a notice in terms of Rule 7(1) and (4),
calling upon Peyper Attorneys to provide them with a Power of
Attorney signed by the      applicant or on
behalf of the applicant with delegated authority and/or resolution
of
the Municipal Council within 10 days of the notice. The Respondents
further disputed the
locus standi
of Mr Mokhathle as Acting

Municipal Manager, stating that he had
no requisite authority or
resolution from the Municipal Council authorising him to institute
and
prosecute
(my emphasis) this application., alternatively
to bring this eviction and interdict application as alleged under
paragraph 2 of founding
affidavit. They argue that the delegation to
the Acting Municipal Manager reads that he be delegated ‘
to sign
all documents regarding the following in line with the Delegation of
Powers document approved by Council on 1 August 2013,
…to institute
and defend any legal action in any Court”
. The respondent
argues that the word ‘institute’ does not include authority to
‘
prosecute’
litigation.
[19]
In response to the Rule 7(1) Notice, the applicant, on 28 October
2021, filed the Special Power of Attorney and the Council Resolution
dated 27 November 2019. The Special Power of Attorney was signed
on
12 August 2021 by Lekhetho Isaac Mokhathle in his capacity as
Municipal Manager duly authorised in terms of a Resolution dated
6
December 2019. The said resolution was also attached. This was out of
the 10 days’ period stipulated in the Rules, more specifically
9
days out of time.
[20]
The applicant requests condonation in this regard and submits
no
prejudice was suffered by the respondents as filing of the opposing
affidavit is not dependent upon compliance with Rule 7. Further,
the
applicant points out that the respondents themselves were out of time
in filing a Rule 7 Notice by more than a month. In terms
of the
Rules, they should havefiled the notice within 10 days of having
received the application. The respondents argue that the
applicant’s
response to its Rule 7 notice be excluded from admission into
evidence as it was out of   time and there is no
condonation
application before court for admission thereof.
[21]
The granting of
condonation for non-compliance with the Rules remain in the Court’s
discretion. The applicant did not bring a substantial
application but
made submissions in its heads and from the bar. In exercising its
discretion, a Court must consider the degree of
the   lateness,
explanation for the delay, prospects of success, degree of
non-compliance with the rules, the importance of
the case, the
respondent’s interest in finality of the judgment of the Court
below, the convenience of the Court and the avoidance
of unnecessary
delay in the
administration of justice –
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[1]
.
[22]
In the interests of justice and there being no prejudice suffered
by
the respondents as a result of the late compliance with this notice
by the applicant, I find no reason not to condone the applicant’s
late response to the Respondent’s Rule 7 Notice. As such the
applicant’s response to the respondent’s Rule 7 Notice is
admitted
into evidence.
[23]
The respondents further
submit that the Municipal Resolution is fatally defective as it does
not authorise the Municipal Manager to
‘prosecute’ but only to
‘institute and defend any legal action in any court’. It appears
that the respondent’s contention
is that the words ‘institute’
and ‘defend’ exclude prosecution of the action. In
Pretoria
City Council v Meerlust Investments Ltd
[2]
,
the Appellate Division, as it then was, stated that the words ‘to
institute action’ are not to be limited to merely commencing
the
action. Although in this case the context was with regards to
prosecuting an appeal in the Supreme Court of Appeal and the court
found that the authority to institute did not include noting an
appeal to a higher tribunal in the event of an adverse decision in
the Court of first instance. In my view, the AD’s
obiter
dictum
in respect of
limiting the said phrase, is applicable herein more especially
because this is the same court where the action was
instituted. For
this reason, I have to reject the respondent’s contention that the
Municipal Manager did not have authority to
prosecute this action.
Condonation
for late filing of the Respondent’s Answering Affidavit and the
Applicant’s Replying Affidavit
[24]
Since the legal principles applying to condonation of non-compliance
with Rules applies to both these applications, I deem it necessary to
deal with them simultaneously.  Despite having been ordered
to
file their answering affidavit on 28 October 2021, the respondents
were only able to do so on 23 November 2021 and in doing so
filed a
condonation application for late filing. In the interest of justice,
the applicant does not oppose condonation.
[25]
Similarly, the applicant was directed to file its replying
affidavit
on or before 15 December 2021 but only did so on 8
th
February 2022, accompanied by another condonation application. The
applicant submits that Mr Mokhathle, who was the deponent to the
founding affidavit was suspended on 9 December 2021. The first draft
of the replying affidavit had been drafted for his signature
and had
then to be changed to be deposed to by the new Municipal Manager
appointed on 10 December 2022. It submits that no prejudice
was
suffered by the respondents in
this regard and requests the court to grant the
condonation in the
interests of justice. The respondents oppose this on the basis that
the applicant fails to account fully on the
causes for delay.
[26]
The standard for the
condonation applications was affirmed by the Constitutional Court
in
Van Wyk v Unitas Hospital and Another
[3]
as the interests of justice and to determine whether it would be in
the interests of justice to grant the condonation would depend
on the
facts and circumstances of each case.
[27]
Interestingly, the respondents rely on this case and submit
that it
is in the interests of justice to condone the late filing of their
answering affidavits as this case implicates the constitutional
rights of the respondents, and the information contained in the
answering affidavit will assist this Court in discharging its
function
in terms of Section 6 (1) to (3) of the Prevention of
Illegal Eviction from Unlawful Occupation of Land Act. I agree with
this submission
and find no issue with condoning the respondent’s
late filing of its answering affidavit. In the same vein, and for the
same reasons,
I do not see why the applicant’s late filing of its
replying affidavit should not be condoned.
Interdict against the Third
Respondent
[28]
It is alleged by the
applicant that persons making up the first and second respondents
reported to the attorneys for the applicant
that they were invited to
invade the municipal properties by the third respondent. As a result
thereof, the applicant seeks confirmation
of the order interdicting
the third respondent from inviting and enticing people to invade the
land in question. In this regard and
by its own admission, the
applicant requires this court to make an order on the basis of
hearsay evidence from an unidentified individual,
which evidence is
tritely inadmissible. The applicant placed no further evidence of
wrongdoing and or specific unlawful conduct on
the part of the third
respondent upon which the relief sought can be granted, neither did
it even attempt to satisfy the requirements
for a final interdict as
outlined in
Setlogelo v
Setlogelo
[4]
.
[29]
This allegation was also
vigorously disputed by the third respondent which, even if the
applicant’s allegations were based on admissible
evidence, presents
a factual dispute. Guided by
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[5]
this court finds no justification to grant the relief sought herein.
For these reasons, the interdict against the third respondent
is
discharged. The proper order with regard to costs would be the
customary order that the costs shall follow the cause.
Costs Occasioned by
Postponement on 15 November 2021
[30]
As stated in para [13]
supra,
the respondents failed to comply
with Van Rhyn AJ’s order and to file their answering affidavit on
or before 28 October 2022 and
only did so on 23 November 2022.
Consequently, the matter could not proceed and had to be postponed.
The applicant has asked that
costs occasioned by the postponement on
25 November 2021 be paid by the respondents since their legal
representatives never advised
the applicant’s legal representatives
timeously and the applicant had to brief Counsel for the day and to
draft Heads of Argument
which was done on 15
th
and filed
on 17
th
November 2021. Had the respondents timeously
informed the applicant of the delay, these costs could have been
obviated. During argument,
Counsel for the applicant submitted that
although he may concede that the first and second respondents are
indigent people who cannot
be able to bear these costs, the third
respondent is a paid Councillor and since he is the one who has
allegedly incited the invasion,
he must be mulcted with these
costs. The contention that the third respondent incited the invasion
was vigorously disputed
by the third respondent. This has been dealt
with fully in paragraphs [29] and [30] above.
[31]
In supporting its
submission to be awarded these costs, the Applicant relied on
Erasmus
v Grunow
[6]
and an unreported judgment of Wright AJ cited as
A.J.P
v I.B
[7]
. The hurdle for the applicant in this regard is the Biowatch
Principle as outlined in
Biowatch
Trust v Registrar Genetic Resources and Others
[8]
,
and confirmed in
Harrielall
v University of KwaZulu- Natal
[9]
.
In terms hereof
,
the
court directed that the ordinary rule that costs follow the result
should not be applied to unsuccessful private litigants who
seek to
vindicate their constitutional rights against an organ of State. This
is a constitutional matter involving a right to housing
and I am
persuaded that this principle applies to all the respondents herein,
including the third respondent.
[32]
In the result, and in respect of the main application, the following
order is made
:
ORDER
1.
The interdict against the Third Respondent is
discharged with costs.
2.
The First and Second Respondents shall apply to
the Applicant’s housing department within 21 days from service of
the order to register
as persons in urgent need of alternative
accommodation/emergency housing.
3.
The Applicant shall attend to the provisions of
alternative accommodation to the persons who qualify for human
settlement as being
persons identified as the Frist and Second
Respondents at the Farm Kuypsheim, Bethlehem district within 30 days
from date of this
order.
4.
The Applicant shall ensure that there is adequate
quantity of portable water available at all times at the Farm
Kuypsheim in order
to accommodate the First and Second Respondents.
5.
The First and Second Respondent are ordered to
vacate the municipal properties situate at
Bakenpark,
Extension 7 (Vogelfontein) or Bakenpark, Extension 5 (Vogelfontein)
[hereafter referred to as “the municipal properties”] within 60
days from the date of this order.
6.
Once the Applicant has provided alternative
accommodation to the First and Second Respondents, the Sheriff of the
Court, with the
assistance of the South African Police Services, or a
contractor of the Sheriff’s choice is authorised to demolish all
half-completed
structures and structures which are not being occupied
by any occupants immediately.
7.
The First or Second Respondents are ordered to
refrain from further demarcating, delineating, erecting structures
and/or bringing
building material onto and, or occupation of the
municipal properties.
8.
In the event of the First and/or Second
Respondents failing to adhere to this order:
8.1.
The Sheriff is authorised and directed to remove any person who are
part of or assists the First or Second
Respondents from the municipal
properties, with the assistance of the South African Police Services
if required;
8.2.
The Sheriff is authorised and directed to remove any movable goods or
items brought onto the municipal
properties by the First and Second
Respondents, with the assistance of the South African Police
Services, if need be.
9.
No person shall be evicted from the municipal properties unless the
Applicant has provided alternative accommodation, which should be
within 60 days from the date of this order.
10.
The Applicant shall file a report with the Registrar of this Court
within 21 days
from date of this order in
respect of all amenities and attributes of the available land situate
at the Farm
Kuypsheim, Bethlehem district.
11.
The Respondents may approach the Court at any time after receipt of
the report
from the Applicant, on or before 1 May 2022, on the same
papers duly amplified to requests legal relief against the
Applicant’s
intention to provide alternative accommodation at the
Farm Kuypsheim, if the Respondents so require, for the Court to
consider granting
further or alternative supervisory orders.
12.
Each party to pay their own costs, including the costs occasioned by
the postponement
of this matter on 25 November 2021.
D. P. MTHIMUNYE, AJ
Appearances:
For the Applicant:

Adv Rautenbach
Free State Society of Advocates
Instructed by Peyper Attorneys
For the First Respondent:

Adv Sindikolo
Johannesburg Bar
Sandton Chambers
Instructed by Ian Levitt
Attorneys
[1]
[2013] 2 All SA 251
(SCA) at Para 11.
[2]
1962 (1) PHF 12 (AD) 324 at Para F-H.
[3]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para 20.
[4]
1914 AD 221
at 227.
[5]
[
[1984] ZASCA 51
;
1984]
(3) SA 623
(A) at para 9.
[6]
1980 (2) SA 793
(O) at 79B-C.
[7]
[2021] ZAFSHC 165
(19 August 2021) at para [26].
[8]
2009
(10) BCLR 1014 (CC).
[9]
2018
(1) BCLR 12
(CC).