About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 8
|
|
Legodi and Others v Sefara and Others (405/2022) [2022] ZALMPPHC 8 (28 January 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 405/2022
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: NO
REVISED
DATE:
28 JANUARY 2022
In
the matter between:
NICHOLAS TSHEPO
LEGODI
FIRST APPLICANT
And
THREE OTHER APPLICANTS
and
CHRISTOPHER
SEFARA
FIRST RESPONDENT
And
EIGHT OTHER
RESPONDENTS
JUDGMENT
MANGENA
AJ
[1]
Bakgatla ba Kgafela is a community owning
vast tracts of land in the North West Province and some parts of
Limpopo. Their land is
endowed
with mineral underneath the surface and is a home to the wild animals
located in the Pilansburg game and nature reserve.
The community has
been plagued by infighting between its members and the chief and
there does not seem to be an end in sight. As
the fight continues
over the control, access and benefits due to the community, others
stand ready to exploit the situation and
benefit from their land.
Chinua Achebe could have had them in mind when he wrote in the Arrow
of God that: When brothers fight
to death, a stranger inherits their
father's estate.
[2]
On the 18 January 2022 , applicants brought
an urgent application against respondents in which they sought
amongst others, the following
orders:-
(a)
Condonation
for non-compliance with the normal rules of service and that it be
heard as one of urgency on an ex parte basis.
(b)
That
a rule nisi
be
issue calling upon the respondent and all interested persons to show
cause on 10 March 2022 or soon thereafter as the matter
may be heard,
why the following orders should not be made
final.
(i)
That
the respondents be ordered and directed to immediately restore to the
applicants peaceful and undisturbed possession, use and
enjoyment,
for crop farming purposes, of the following
farms:
•
The
Farm Frankfort, KP 219 Portion 1,
Thabazimbi
•
The
Farm Rustenburg- Koppies, KP 205 Portion 1, Thabazimbi.
•
The
Farm Wintersveld, kp 220, Portion 0, Thabazimbi
•
The
Portion of the Farm Middelburg
206,Thabazmibi.
•
Farm
Leydenburg 203 KP, Portion 0.
(ii)
That
the
respondents
be
ordered and
directed
to
immediately cease any and all farming activities undertaken by them
at the above mentioned farms and vacate the farms to allow
access
there to, for farming purpose, by the
applicants.
(iii)
That
the two orders above operate as interim orders with immediate effect
pending the final outcome of the application on the return
date.
[3]
The first respondent, Mr Sefara,
anticipated the application and filed an answering affidavit in which
he challenged the applicant's
entitlement to the relief. He took
issue with fact that the applicants approached the court on an ex
parte basis in circumstances
where it was not justified.
[4]
In
the answering
affidavit several points in limine were raised and Adv Venter
,appearing for him argued them during
the oral submissions. I intend to deal with
each point sequentially as they appear in the answering affidavit.
MATERIAL NON-JOINDER
[5]
The respondent vers that the properties
forming the subject of this application are registered and owned by
various companies. The
details of the owners are reflected in the
deed searches attached to the affidavit. It was contended that the
respective companies
owning the individual farms as well as Bakgatla
ba Kgafela-Communual Property Association have a direct and
substantial interest
in the outcome of the proceedings and should
have been joined.
[6]
The principles governing joinder of a party
to the proceedings are well
established.
The principle was expounded lucidly in the
Judicial
Service Commission v Cape Bar Council,
2013 (1) SA 170
(SCA)
follows:-
"[12]
It has by now become settled law that the joinder of a party is only
required as a matter of necessity-as opposed to
a matter of
convenience- if that party
has
a
direct and substantial interest which may be affected prejudicially
by the judgment of the court in the proceedings concerned
(See
eg Bowing NO V Vrededorp Properties
CC
and Another
2007 (5) SA 391
(SCA)
PARA 21).
The mere fact that
a
party may have an interest in the
outcome of the litigation does
not
warrant
a
non-joinder
plea.
The right of
a
party
to
validly
raise
the
objection
that other parties should have been joined to the proceedings, has
thus been held to be
a
limited
one"
[7]
The party raising non-joinder need to set
-out facts clearly showing not only the direct and substantial
interest of the party not
before court, but also how the judgment or
order sought if granted will materially prejudice that party. It is
therefore not sufficient
to allege in broad terms as the first
respondent did in the answering affidavit without showing the
prejudice likely to
be
suffered
by
the companies
and Bakgatla ba
Kgafela
CPA. The respondent has failed the test in this regard and the point
in limine is dismissed.
IRRECULAR EX PARTE
PROCEEDINGS AND MATERIAL NON-DISCLOSURES
[8]
As indicated earlier, the respondent takes
umbrage at the ex parte procedure taken by the applicants in
circumstances where according
to him it was legally unjustified. The
respondent contends that spoliation does not fall within the
categories of the matters which
may be brought ex-parte. The
respondent further avers that
the
applicants suppressed material information which had the court known
about it' the interim order would not have been granted.
During oral
submissions, Adv Venter pointed out that the applicants, in
particular, Mr Simpson should have disclosed that he had
entered into
an agreement with the fourth respondent regarding the use of a
portion of a farm. The applicants should have also
disclosed to the
court that the respondents have been farming on the property since
2018. There were
also
submissions made regarding ownership disputes
taking
place
in
Mahikeng
High
Court which
information it was contended should have been disclosed.
[9]
Relying on
Schlesinger
v Schlesinger,
1979 (4) SA 342
,
Adv
Venter submitted forcefully that the interim order granted on 18
January 2022 should be discharged with a punitive costs order
made
against the applicants as a mark of displeasure. Indeed, Schlesinger
makes it clear that in ex-parte applications all
material facts must be disclosed which
might influence a court into coming to a decision, the non
disclosure or suppression
of
facts
need not be willful or made fide to incur the penalty of rescission
and
that the
court, apprised of
the
true
facts, has a discretion to set aside the
former order or to preserve it.
[10]
The facts relied upon by Adv Venter in
support of his submissions regarding non disclosure are not
material to the issue at
hand, namely spoliation. To the extent that
they may have some semblance of materiality, they are not, in my
view, of such a nature
that they could have disturbed the orders I
granted on
the 18
January 2022. To demonstrate the point I make, the issue of the
agreement between Mr Simpson and the fourth respondent have
no
relevance to
the
question whether the first and second applicants were dispossessed of
their possession with regard to Farm Lydenburg Rustenburg
and
Middelburg respectively. The same goes to the allegation that there
is an ownership dispute taking place in Mahikeng. As correctly
argued
by Adv Schenehager, ownership is irrelevant in a spoliation dispute.
[11]
If I am correct in my view as I believe I
am, this point should equally fail. In this regard Fabricius J had an
occasion to say
something on this principle in the matter of
Multi
links telecommunications V Africa Prepaid,
2014 (3) SA 265
(GP)and
said.
"[33] it is of
course true that full disclosure of every material fact need to be
made in ex parte applications, but the real
question is whether any
undisclosed facts were related to those which "might influence
the court into coming to a decision:
They do not relate to all
conceivable matters that may be relevant to the subject matter of the
ex parte application. The sanction
for non-disclosure of such facts
is that the ex-parte order is set aside, but that is also not even an
automatic consequence"
[12]
Consequently I am unable to agree
with Adv Venter that the
facts relied upon
to upset the interim order are materially
relevant or connected to the issue at hand. Failure by the applicants
to disclose them
does not warrant the censure prayed for by the
respondents. This point in limine is dismissed.
[13]
Having disposed of the hurdles, what
remains is the determination of the merits. The applicants pegged
their case for spoliation
on the interim order granted by this court
in
favour of the
fourth applicant
in case number
7276/2020. The court order effectively
placed possession of the Farm Frankfort KP 219 Portion 1 Thabazimbi,
Rustenburg KP 205 Portion
1, Thabazimbi, Wlnterveld KP 220, Portion
0, Thabzimbi, Farm Middleburg 206, Thabazimb,i Unitl the matter is
finalized and /or the interim
order discharged, the fourth applicant
remains the only person entitled to deal
with
the
farm
portions. The interim order is still
operative and the document relied on by the fourth respondent does
not support the contention
by
the
respondents that Mr Simpson has given access to the fourth
respondent.
Was there spoliation
[14]
The general principles underlying
spoliation are settled. The court explained the concept and its
purpose in
lvanon v North West Gambling
Board,
2012 (6) SA 67
(SCA).
In this
regard I can do no better than to borrow gratuitously from the words
of Mhlantla JA (as she then was) where she said: Spoliation
is the
wrongful deprivation of another's right of possession. The aim
thereof is to prevent self-help. It seeks to prevent people
from
taking the law into their own hands. An applicant upon proof of two
requirements is entitled to a mandamant van spolie restoring
the
status quo ante. The
first
is proof
that
the applicant was in possession of
the
spoliated
thing. The cause for possession is irrelevant-that
is why possession by a thief is protected.
The second is the wrongful deprivation of possession. The fact that
possession is wrongful
or illegal is irrelevant, as that would go to
the merits of the dispute.
[15]
The applicants contend that on the
authority of the court order under case number 7276/2020 granted on
17 November 2020 the fourth
applicant satisfies the requirement of
spoliation in that he was in possession of the respective farm
portions except Lydenburg.
They argue further that he was deprived of
his possession by the respondents who commenced forming operations on
the farms. For
the above reasons, it is submitted that they are
entitled to a final order in that they have satisfied
all
the requirements of an interdict. They further submit that the
respondents have not adduced any evidence demonstrating a defence
to
the claim.
[16]
The respondents acknowledge the existence
of the court order under case number 7276/2020 and that it is valid
until set aside by
the court. The first and fourth respondents who
are participants in this proceedings mounted a spirited challenge and
argued that
they have been in possession of certain portions of the
land since 04 November 2021. They had some interaction with the
fourth
applicant regarding the work they were performing on the farms
and he told them that he has an interdict (court order). Since they
started working on the properties, they have spent money in excess of
a million to
prepare
land and should the order be
confirmed,
their investment will go to a
waste.
[17]
The submissions by the respondents are
unsustainable. It goes against all the tenets of a good social order.
The respondents on
their own version were aware of the court order
granted in 2020 placing the
farm
portion under the
fourth
applicant pending final determination.
For
them to now argue
that
they have invested a substantial amount of money on the properties
and should therefore be allowed to retain them offends the
principles
of the rule of law. The rule of law requires that court orders be
respected and given effect to. To the extent that
they will suffer
damages as a result of the confirmation of
the
interim
order they have
themselves
to blame. They are the
authors
of their own misfortune and this court cannot come to their
rescue.
COSTS
[18]
Each of the counsel submitted that costs
should follow suit. There is no reason why the court should depart
from this principle.
Through counsel requested for costs on a
punitive
scale,
no
case has
been
made
out
to justify
such an
order. I
therefore exercise my discretion and award costs on the ordinary
scale of party and party.
[19]
In the premises, it is ordered as
follows:-
1.
The rule
nisi
issued on
the
18 January 2022 is confirmed.
2.
The first and fourth respondents are
ordered to pay the applicant's costs jointly and severally, the one
paying the others to be
absolved.
MANGENA
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
For
the Applicant: Adv Schenehager
For
Respondent: Adv Venter