About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 66
|
|
Diocese of Marianhill of The Roman Catholic Church v Duma (6795/2022) [2022] ZAKZPHC 66 (25 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 6795/2022
In
the matter between:
DIOCESE
OF MARIANHILL OF THE ROMAN
CATHOLIC
CHURCH
APPLICANT
And
JABULANI
DUMA
RESPONDENT
JUDGMENT
BEZUIDENHOUT
J
:
[1]
On 31 May 2022 Applicant brought an urgent application against
Respondent and an order
was granted on the same day in the following
terms:
“
1.
The rule
nisi
is issued calling upon the Respondent to show cause, if any, at
09h30
on the
14
th
JUNE 2022
, why an
order should not be confirmed on the following terms:-
1.1
The
Respondent and any persons acting in concert with or at the behest of
the Respondent are to return peaceful and undisturbed
possession of
the Applicant’s immovable property more fully described as
Portion 2 of the Farm B No 5787, Registration Division
FS, Diagram SG
No 2550/2002, Registered Title No T19294, Province of KwaZulu-Natal,
in extent 78, 6209 (SEVENTY EIGHT COMMA SIX
TWO NAUGHT NINE) by:
1.1
Removing
all the cattle grazing in the Applicant’s Immovable Property
without the permission of the Applicant;
1.2
Not
allowing his own cattle from grazing in the Applicant’s
Immovable Property.
1.3
Not
inciting any other person to graze his/her cattle in the Applicant’s
Immovable Property; and
1.4
Refraining
from removing the Applicant’s fence and installing new fence on
the Applicant’s Immovable Property.
2.
The Respondent is to pay the costs of this application in the event
of its opposition to
the grant of this order.
3.
The Respondent is directed to file his answering affidavit by no
later than
3 June 2022
.
4.
The Applicant is directed to file its replying affidavit, if any, by
no later than
8 June 2022
.”
[2]
On the return day of the rule
nisi
14 June 2022 Respondent had
filed his answering affidavit and Applicant its replying affidavit
and the matter was then adjourned
to the opposed roll on 20 October
2022 and the rule extended and the costs to be costs in the cause.
[3]
Both Applicant and Respondent applied for condonation for the late
filing of their
heads of argument. This was granted.
[4]
Applicant is seeking confirmation of the rule
nisi
. It
was submitted that it has been shown that Applicant is the registered
owner of the immovable property described as portion
2 of Farm B of
No 5797. On behalf of Applicant I was referred to the Title
Deed of the property which is attached to the
founding affidavit as
well as a sub-divisional diagram which indicates the property of
Applicant. It was submitted that Respondent
has failed to
provide any proof that the land is his. It was submitted that
Applicant already allows Respondent and others
to utilise a portion
of the property as a grazing camp. There had been a meeting
with the Department of Agriculture and the
ownership of the land by
Applicant was confirmed. It was further submitted that a farmer
who had been using the said immovable
property for grazing purposes
on an informal basis had been hounded by Respondent and the Priest
from the said Parish was informed
not to get involved therein and to
confine himself to his mission. It was submitted that in a
letter from Respondent’s
attorney at pages 43 and 44 of the
papers Respondent does not dispute that it is grazing cattle on the
land but it was contended
that the land belongs to the Duma Chiefdom
who was unlawfully deprived of the possession of the land.
[5]
In his answering affidavit Respondent raised two points in
limine
firstly one of urgency and secondly one of non-joinder. It was
submitted that urgency was no longer an issue as the rule
nisi
had been issued but that the issue of non-joinder remained an issue.
There were a group of people and not only Respondent
that were
grazing cattle on the said land. It was submitted that
Applicant had to join these other people as Respondents.
If
this was not done the order would be ineffective. It was
further submitted that there was a dispute of fact on the papers
as
to who is allowed to graze cattle on the land and that it should be
referred for the hearing of oral evidence.
[6]
In response thereto it was submitted on behalf of Applicant that
there was no dispute
of fact and that the order as it was granted was
sufficient as Respondent was the person in control and also the one
that was instigating
the said conduct as set out in their affidavit.
[7]
In the answering affidavit of Respondent on the merits of the case
there were various
averments that if a person was not a member of
First Respondent he/she would lose their place of residence and that
the views of
the community were not taken into account when the land
was transferred. It was further contended that it has been a
period
of eight years that the land has been used for grazing.
[8]
It was submitted that this land had been used for grazing of cattle
for more than
eight years. It was submitted that Applicant did
not make out a case when it was first used for such purpose and there
are
faceless Respondents before court as there are people whose
cattle graze the land who are not before court. The land be
transferred
to a committee and it would be appropriate for an order
that Applicant joins and identifies the other people who are using
the
said land. There is thus a dispute of fact and that the
matter should accordingly be referred for the hearing of oral
evidence
and Applicant be granted leave to join the other Respondents
and that costs be reserved.
[9]
In reply it was submitted on behalf of Applicant that there is no
dispute of fact.
That no proof has been provided to
substantiate that the cattle has been grazing for a period of eight
years. I was once
again referred to the conduct of Respondent
towards the Parish Priest when he wished to intervene in the dispute
with the local
farmer. It was submitted that the Department of
Agriculture at the meeting reported that everything was done
correctly.
As set out in paragraph 22 on page 13 of the papers
a group of people have taken over the grazing camp, had removed the
fence,
installed a new fence, changed the gates and then used the
camp to graze their cattle. The fence was moved from its
original
position. It was submitted that only Respondent knows
who these other persons are and that a final order should therefore
be granted.
[10]
I was referred by counsel for Respondent to the decision of Kayamandi
Town Committee v Mkhwasa
and Others
1991 (2) SA 630
(CPD) where it
was held that a failure to identify defendants or respondents would
appear to be destructive of the motion that
a court order operated
only
inter partes
and that an order against respondents not
identified by name in the process commencing action or on the record
would have the generalised
effect typical of legislation it would be
a decree and not a court order at all. It was therefore
submitted that any order
that was granted here would only be
applicable against Respondent. I was also referred to the
decision in Illegal Occupiers
v Monwood Investment
2002 (1) ALL SA
115
(CPD) where it concerned the eviction of certain people and it
was held that the respondents did not have the appellants
particulars,
did not take adequate measures to establish them and the
appellants could not have been regarded as having been properly
brought
before court.
[11]
In the present matter Respondent is the only respondent and no
particulars of any other person,
whose cattle may be grazing on the
said property, are provided nor are they joined as respondents.
It is merely stated in
the order that Respondent and any persons
acting in concert with or at the behest of Respondent are to remove
the cattle.
In my view the non-joinder of the other people is
not fatal to Applicant in the present matter but will have the effect
that if
there is noncompliance that Applicant would have to prove
whose cattle it is, and if not that of Respondent that they there
were
grazing at his behest.
[12]
It has indeed been proved that Applicant is, in terms of the Title
Deed, the owner of the said
land in question. The Title Deed
also indicate that Applicant during 2002 transferred portions of its
land to the Enhlanhleni
Community Property Association. There
is a grazing camp which Applicant utilises. It is further on
the papers not disputed
by Respondent that the grazing camp of
Applicant has been taken over and that cattle are grazing thereon and
that the fencing and
gates have been changed. In paragraph
12.12 of the answering affidavit at page 67 of the indexed papers
Respondent admits
that the cattle do graze on the said land but
contends that it has been so for a period of eight years. In
the said answering
affidavit it is not disputed that their cattle
graze on the land. There is a portion which was transferred to
the community
property association where their cattle can graze.
[13]
Counsel for Respondent did not in argument pursue the various
averments in the affidavit of Respondent
of having to be a member of
the church to be buried there which has no relevance to the issue in
the present matter. There
has been no evidence placed before
Court by Respondent that he is entitled to occupy the said land for
grazing or to have erected
the said fence. On behalf of
Respondent the argument was confined to the points
in limine
as set out above and that there is a dispute of fact.
[14]
In my view there is no material dispute of fact in that the Title
Deed together with the diagram
indicate that the land in question
belongs to Applicant. There are only bold allegations by
Respondent to the contrary but
not disputing the occupation of the
land. Therefore there is no material dispute of fact on this
issue. Also it is
not contended on behalf of Respondent that he
was entitled to graze his cattle on the said land nor is any other
valid ground of
occupation mentioned in Respondent’s papers.
In the circumstances I am satisfied that the rule
nisi
must be confirmed.
[15]
On 14 June 2022 the return date when the matter was adjourned to be
placed on the opposed roll
an order was made that the costs of that
day had to be costs in the cause. The only other costs relate
to when the rule
nisi
was granted on 31 May 2022 and the
opposed hearing on 20 October 2022. These costs are dealt with
in the rule
nisi
.
Accordingly
the following order is made.
1.
The rule
nisi
issued on 31 May 2022 is confirmed.
BEZUIDENHOUT
J.
JUDGMENT
RESERVED ON: 20
OCTOBER 2022
JUDGMENT
HANDED DOWN ON: 25
OCTOBER 2022
COUNSEL
FOR APPLICANT: N
T L NTULI
Instructed
by: Luthuli
Sithole Attorneys
Durban
Tel:
031 312 2327
Ref:
D0074/TS/CJ
c/o
Austen Smith Attorneys
Pietermaritzburg
Tel:
033 392 0500
COUNSEL
FOR RESPONDENT:
S NGCAMU
Instructed
by: Borman
Duma Zitha Attorneys
Randburg
Ref:
DD3157/A V DUMA/NDZALAMA
Tel:
011 0886 4628
c/o
Ngcamu Attorneys Incorporated
Pietermaritzburg
Tel:
08 094 9284 / 083 439 8380