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[2022] ZALMPPHC 10
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Mamohlola Community Property Association and Others v Molewa and Others (6212/2020) [2022] ZALMPPHC 10 (14 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 6212/2020
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDES: YES/NO
REVISED.
In
the matter between:
MAMOHLOLA
COMMUNITY PROPERTY ASSOCIATION
1
ST
APPLICANT
MASILU
SAMSON
MODIBA
2
ND
APPLICANT
TSATSI
ABEL
LETSOALO
3
RD
APPLICANT
MAREDI
BERNARD
LETSOALO
4
TH
APPLICANT
And
FRANCE
MOLEWA
1
ST
RESPONDENT
MACK
MOLEWA
2
ND
RESPONDENT
TICHAONA
RWINDZU
3
RD
RESPONDENT
FIRST
NATIONAL BANK, TZANEEN
4
TH
RESPONDENT
JUDGMENT
MANGENA:
AJ
[1] Mamahlola Communal Property
Association was established subsequent to the successful land
restitution process instituted by
the communities which were
forcefully removed from the land as a result of past discriminatory
laws.
[2] The Communal Property Association
(CPA) was duly registered in accordance with the provisions of the
Communal Property Registration
Act and is the lawful owner of all the
farm properties awarded to her as part of the land restitution
programme.
[3] The CPA, acting through its
elected representative brought application proceedings against the
first, second and third respondents
in which it sought to restrain
them from setting foot on its farm portions as well as trading in and
selling or buying of timber
from the farms owned by her. FNB was
cited as a fourth respondent and the relief sought against it was
that it should be ordered
to make available to the applicants the
bank statements on two accounts operated by the first respondent.
There was no prescribed
period for which the statements are required.
[4] The respondents opposed the
application and raised 5 points in limine in relation to the
application and submitted that they
are dispositive of the matter. At
the hearing, the parties agreed that for convenience both merits and
preliminary points will
be argued in tandem and so it was. I propose
to deal first with the preliminary points.
[5] The first point in limine related
to lack of locus stand in judicio. It was submitted on behalf of the
respondents that there
was no proof attached to the papers that the
CPA is registered and therefore capable of instituting the
proceedings. This point
was not pursued with vigour by Mr Jacobs who
appeared for the respondents as on the papers before me it was clear
that the CPA
was registered and has been a subject of litigation in
this court on matters relating to its management. Mr Jacobs conceded
that
the CPA is in existence and I do not consider it to be a
requirement that an entity instituting legal proceedings should
attach
its registration papers. What is required is a resolution
confirming authority to institute the proceedings. This was not the
argument
by the respondents and even if it were, such an argument was
bound to fail for the reason that a resolution was attached to the
founding affidavit. The fact that the resolution is inelegant does
not take away its legitimacy and its purpose. The point in limine
is
dismissed.
[6] The second point related to
non-joinder of the relevant parties such as the municipality, Ms
Julia Mokhomola and the Department
of Rural Development and Land
Reform. The basis for raising this point as I understand Mr Jacobs
arose out of the position taken
by the respondents that objectively
viewed, the applicants are applying for eviction of the respondents
from the farms. Related
to this point was the alleged non-compliance
with PIE-ACT and ESTA. It was argued that the applicants were
required to follow the
procedures prescribed by PIE-ACT and ESTA
before they could be entitled to the relief sought.
[7] The three points raised have no
merit and can be dealt with as one. The test for non-joinder is
whether a party has a direct
and substantial interest in the subject
matter of the proceedings i.e a legal interest in the subject matter
of the litigation
which may be prejudicially affected by the judgment
of the court. A reading of the prayers in the notice of motion does
not in
the slightest suggest that these are eviction proceedings as
contended by the respondents. What the applicants seek is an
interdict
prohibiting the respondents from cutting, harvesting and
selling timber from its farms. The order restraining them from
“setting
foot” on the farms relates to the overall
objective of interdicting them from cutting and harvesting timbers.
[8] The submission by Mr Jacobs that
the respondents are the occupants of the farm and have been staying
there since 1965 is rejected
as all people were removed and resettled
at Metz, Ga Sekororo, and other villages. The respondents received
the application at
the village where they reside and not at the farm.
This put paid to the argument that the respondents are residing at
the farm.
Having concluded that these are not eviction proceedings,
there was accordingly no obligation on the part of the applicants to
comply with PIE/ESTA. There was consequently no need to join the
mentioned parties as none of the orders sought would prejudicially
affect them. The three points in limine are dismissed.
[9] On the merits of the application,
applicants were required to satisfy the three requirements for an
interdict, namely clear
right even if open to doubt, irreparable harm
and lack of alternative remedy.
[10] On the evidence before me, there
is no dispute that the applicants as the beneficiaries of the land
restitution programme have
a clear right. As the owners of the farm
properties, they have a responsibility to manage the affairs of the
CPA and protect its
assets including the timber growing on the farms.
The removal and harvesting of the timber deprives the beneficiaries
of their
revenue and is causing them an irreparable harm. The
respondents have no legal basis to harvest the timber. The applicants
have
no alternative remedy.
[11] In the premises I am satisfied
that the applicants have made out a case for the prayers contained in
the notice of motion with
the exclusion of prayer “d”
Order
The
following order is made:-
12.1.
The 1
st--
3
rd
respondents and any members of
their facilities and their assistants are ordered and restrained from
setting foot on the farms
Titswalo 642, Monavein 612, Mamathola Loc
635. Tamara 573, Vulivha 607, Tubb`s hill 650, Morle Brook 651,
Longridge 608 and Mamathola
609.
1.2.2.
The first and second respondents and members of their families and/or
assistants are ordered and restrained from trading
in and selling
timber from any of the farms mentioned in paragraph 1 above.
1.23.
That the 3
rd
respondents and any members of his family or
assistants are ordered and restrained from buying any timber from the
farms mentioned
in order 12.1 above from the first and second
respondents or any member of their families or assistants.
1.2.4.
The first, second and third respondents are ordered to pay the costs
jointly and severally, one paying the other to be absolved.
MANGENA
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
Representations
1.
Counsel for Applicant
: Adv JLH
Letsoalo
Instructed
by
: P.E
Mashole Attorneys
2.
Counsel for Respondent
: Mr. J Jacobs
Instructed
by
:
Joubert & May Attorneys
3.
Date of hearing
:
07
FEBRUARY 2022
4.
Date delivered
:
14 February
2022