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[2022] ZALMPPHC 64
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Baphalane Communal Property Association v Lebethe and Others (12657/2022) [2022] ZALMPPHC 64 (29 November 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 12657/2022
REPORTABLE: YES/NO
OF INTEREST TO THE
JUDGES: YES/NO
REVISED.
In
the matter between:
BAPHALANE
COMMUNAL PROPERTY ASSOCIATION
APPLICANT
And
GODFREY
TELL LEBETHE
FIRST RESPONDENT
THE
PROVINCIAL COMMISSIONER OF POLICE,
LIMPOPO
PROVINCE
SECOND RESPONDENT
THE
STATION COMMANDER NORTHAM
POLICE
STATION
THIRD RESPONDENT
TSHEGOFATSO
AGRI (PTY) LTD
FOURTH RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
The applicant and the fourth respondent have entered into a lease
agreement in terms of which the fourth
respondent had hired the
arable land, irrigation infrastructure and improvements for farming
activities from the applicant. In
terms of clause 7 of the lease
agreement, the applicant shall ensure that the fourth respondent
shall have a safe working environment
with free and undisturbed
access and occupation of the arable land. The applicant shall further
at their sole cost and expense
evict all illegal occupants occupying
the properties of gaining access to the arable land.
[2]
On 17
th
November 2022 the fourth respondent through its
attorneys wrote a letter of complaint to the applicant, complaining
that on the
same date the first respondent and a few others between
14h00 and 14h30 approached their employees and threatened them, and
insisting
that he be given a load of wheat, failing which the fourth
respondent will not be allowed to harvest further. Thereafter the
first
respondent forcefully took a load of wheat off the tractor to
the value of R240 000.00 and also the keys of the tractor and left
with them. In that letter the fourth respondent further notified the
applicant that it was still having wheat to the value of R1
million
which needed to be harvested within a short space of time as it will
be damaged by rain. The fourth respondent requested
the applicant to
take immediate necessary steps to fulfil their obligations as
recorded in the lease agreement.
[3]
That led to the applicant instituting an urgent application seeking
an interdict against the first respondent
and any other interested
party associated with the first respondent. According to the
applicant, on being notified of the incident
of the 17
th
November 2022, it immediately sent two of its representatives to the
farm. The applicant alleges on arrival at the farm, its
representatives
were confronted by a very angry and aggressive first
respondent who demanded to know the reasons for their presence. The
first
respondent is one of the beneficiaries of the applicant. The
applicant further alleges that an argument ensued between its
representatives
and the first respondent, and that the first
respondent was seen approaching his vehicle, and placing a firearm on
the front seat.
[4]
The applicant’s representatives felt that the situation
was unsafe to engage the first respondent
and decided to call the
drivers of the tractor and the transport truck and went to Northam
SAPS with the intention to open a criminal
case. The applicant
alleges that the SAPS refused to open a criminal case and had told
its representatives that the issues they
were complaining about were
civil in nature. The applicant alleges that the first respondent had
sold the load of wheat that he
had stolen from the fourth respondent
at AFGRI Grain Management in Brits. Further that they were able to
identify the registration
number of the truck that was used by the
first respondent.
[5]
The first respondent is opposing the applicant’s application.
The first respondent in his answering
affidavit has raised four
points
in limine
. The first being that of non-commissioned and
unsigned confirmatory affidavit of Hendrik Jacobus du Preez; the
second being incomplete/incorrect
citation of third respondent; the
third being that the averments of the applicant are vague and
embarrassing; and the fourth being
that the relief sought by the
applicant is bad in law.
[6]
On the merits of the application, the first respondent has stated
that without a resolution by
the executive committee of Baphalane
Communal Property Association, duly authorising the applicant in this
application to depose
to the founding affidavit, the averments made
by the applicant in the founding affidavit are hearsay, and further
that the applicant
has no
locus standi
to bring this
application or to depose the founding affidavit. The first respondent
denied the allegations levelled against him,
and state that they are
baseless and fabricated by the applicant. Further that the applicant
has failed to cite all the group that
the first respondent allegedly
led. The applicant stated that he resides in one of the properties
leased to the fourth respondent.
[7]
The applicant in its replying affidavit has attached the signed and
commissioned confirmatory affidavit
of Mr du Preez and has stated
that the affidavit was not available at the time of the filing of the
application. The applicant
has further stated that the first
respondent is currently the
de facto
occupier of one of its
properties, and that he has not been granted any rights or authority
by the applicant or any other person
to conduct farming activities on
the farms.
[8]
The first respondent’s point
in limine
relates to the
non-commissioned and unsigned confirmatory affidavit of Hendrik
Jacobus du Preez. The applicant had conceded that
when it issued the
application on 21
st
November 2022 it had attached an
unsigned confirmatory affidavit of Mr du Preez, and that it was as a
result of the fact that the
confirmatory affidavit was not available
at the time of the filing of the application. The confirmatory
affidavit of Mr du Preez
which is attached to the applicant’s
replying affidavit has been signed and commissioned on the same date
the application
was issued. It was not signed and commissioned after
the application was issued. It can therefore not be said that Mr du
Preez
did not have sight of the applicant’s founding affidavit
before his confirmatory affidavit was signed and commissioned. Even
though that confirmatory affidavit was filed after the application
was issued, it had cured the defect. Therefore, the first point
in
limine
has no merit and stands to be dismissed.
[9]
The second point
in limine
is that of incomplete/incorrect
citation of the third respondent. The first respondent did not state
how the third respondent should
have been cited. The third respondent
did file any opposing papers, and the applicant is not seeking any
relief against the third
respondent, but has been cited as an
interested party in the matter. This point
in limine
should
have raised by the third respondent, and the first respondent had no
mandate to represent the third respondent. Therefore,
the second
point
in limine
has no merit and stands to be dismissed.
[10]
The third point
in limine
is that the averments of the
applicant are vague and embarrassing. The fourth point
in limine
is that the relief sought by the applicant is bad in law. The third
point
in limine
sound like an exception which is available to
action proceedings and not motion proceedings. For the fourth point
in limine
, if the applicant is unable to substantiate the
orders it is seeking, the application will simply be dismissed. That
can therefore
not be raised as a point
in limine,
but goes to
the merits of the case. The two points
in limine
have
therefore no merit and will dealt with the merits of the application.
[11]
In his answering affidavit the first respondent has submitted that
without a resolution by the executive
committee of Baphalane Communal
Property Association authorising the applicant to depose the founding
affidavit, the averments
made by the applicant in the founding
affidavit are hearsay, and the applicant had no
locus standi
to bring the application or depose the founding affidavit. The
deponent of the applicant’s founding affidavit has stated
that
he was authorised to depose the affidavit and institute the
proceedings on behalf of the applicant by virtue of his position
as
the chairperson, and further that the facts contained in the
affidavit were within his personal knowledge.
[12]
In
Ganes
and Another v Telecom Namibia LTD
[1]
Streicher JA said:
“…
In the
founding affidavit filed on behalf of the respondent Hanke said that
he was duly authorised to depose to the affidavit. In
the answering
affidavit the first appellant stated that he had no knowledge as to
whether Hanke was duly authorised to depose to
the founding affidavit
on behalf of the respondent, that he did not admit that Hanke was so
authorised and that he put the respondent
to the proof thereof. In my
view, it is irrelevant whether Hanke had been authorised to depose to
the founding affidavit. The deponent
to a founding affidavit in
motion proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the
institution of the proceedings and
the prosecution thereof which must be authorised. In the present case
the proceedings were instituted
and prosecuted by a firm of attorneys
purporting to act on behalf of the respondent. In an affidavit filed
together with the notice
of motion a Mr Kurz stated he was a director
in the firm of attorneys acting on behalf of the respondent and that
such firm of
attorneys was duly appointed to represent the
respondent. That statement has not been challenged by the appellants.
It must therefore,
be accepted that the institution of the
proceedings was duly authorised. In any event, Rule 7 provides a
procedure to be followed
by a respondent who wishes to challenge the
authority of an attorney who instituted motion proceedings on behalf
of an applicant.
The appellants did not avail themselves of the
procedure so provided. (See Eskom v Soweto City Council
1992 (2) SA
703
(W) at 705 C-J.)”
[13]
The deponent of the founding affidavit has stated under oath that he
was duly authorised to depose the affidavit
and to institute the
proceedings on behalf of the applicant. Should the first respondent
doubt that and wanted to challenge it,
his remedy was to evoke the
procedure provided for in Rule 7, but has failed to avail himself of
that procedure. It must therefore
be accepted that the institution of
the proceedings has been authorised.
[14]
What must now be determined is whether the applicant had satisfied
the requirements for a final interdict.
It is trite that the
requirements for the grant of a final interdict are (a) a clear
right; (b) unlawful interference with that
right, actually committed
or reasonably or apprehended; and (c) the absence of any other
satisfactory remedy. (See
van
Deventer v Ivory Sun Trading 77
[2]
).
[15]
The first respondent in his answering affidavit had conceded that the
applicant is the owner of the property
where the alleged incident
took place. This is the property which the applicant had leased it to
the fourth respondent. In terms
of the lease agreement, it is the
applicant’s responsibility to ensure that the fourth respondent
remain in peaceful and
undisturbed possession of the leased property.
The court is therefore satisfied that the applicant had established
the existence
of a clear right.
[16]
In relation to the allegations that the first respondent together
with his unknown accomplices, interrupted
and disturbed the fourth
respondent’s farming activities, the first respondent had
merely submitted a bare denial without
refuting the substance of the
allegations in the applicant’s founding affidavit. In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[3]
Heher JA said:
“
A real, genuine
and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the
dispute has in his
affidavit seriously and unambiguously addressed the fact said to be
disputed. There will of course be instances
where bare denial meets
the requirement because there is no other way open to the disputing
party and nothing more can therefore
be expected of him. But even
that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party
and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing
party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true
or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in
finding that the test is satisfied. I say ‘generally’
because factual averments seldom stand apart from a broader matrix
of
circumstances all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or
understand
the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made
by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they be, and will
only in exceptional
circumstances be permitted to disavow them. There is thus a serious
duty imposed upon a legal advisor who settles
an answering affidavit
to ascertain and engage with facts which his client disputes and to
reflect such disputes fully and accurately
in the answering
affidavit. If that does not happen it should not come as no surprise
that the court takes a robust view of the
matter.”
[17]
The first respondent does not dispute that on the date of the
incident he was present at the farm. He simply
denies and put the
applicant to proof. The applicant in its founding affidavit has given
in detail the role the first respondent
played and what he did.
Instead of engaging those allegations against him, the first
respondent just provide a general bare denial
without appropriately
answering the central case made by the applicant against him. In
view, the applicant’s version of the
incident of the 17
th
November 2022 has not been seriously challenged by the first
respondent. Therefore, the applicant had satisfied the second
requirement
for the grant of a final interdict.
[18]
According to the applicant, after the incident they went to the SAPS
Northam where they wanted to open a
criminal case, but warrant
officer Mashile told them that their case was a civil matter, and the
police refused to intervene. The
first respondent did not dispute the
allegations by the applicant that at the police station the police
refused to intervene. Since
the SAPS had refused to intervene and
come to the applicant’s rescue, there is no other satisfactory
remedy that will address
the applicant’s issues. This court is
therefore satisfied that the applicant has satisfied the third
requirement for the
grant of a final interdict. The court is
satisfied that the applicant has made out a case for the relief it is
seeking.
[19]
In the result the following order is made:
19.1 The first
respondent’s points
in limine
are dismissed.
19.2 The first respondent
and/or any other person on his instruction or on his behalf is
interdicted and restrained from:
19.2.1 any activity on
the properties owned by the applicant, as per annexure “X”
hereto (hereinafter “the applicant’s
properties”),
save for residential purposes currently being used by the first
respondent on the remaining extent of portion
7, Nooitgedacht 136 JQ;
19.2.2 preventing the
applicant and/or the fourth respondent’s employees, clients,
representatives or authorised persons from
movement and access to and
from the applicant’s properties;
19.2.3 any unlawful acts
on the applicant’s properties, including but not limited to
harassing, threatening, assaulting and
intimidating the applicant and
the fourth respondent’s employees, clients, suppliers, service
providers and/or any other
authorised visitor to the properties of
the applicant;
19.2.4 attaching or
removing any immovable property or goods, including but not limited
to farming equipment, crops or produce from
the applicant’s
properties;
19.3 The second and third
respondents are ordered and directed to make available members of the
South African Police Service to
assist in enforcing the interdictory
relief in paragraph 9.2 above.
19.4 The first respondent
is ordered to pay the costs of this application, including the costs
reserved for 22
nd
November 2022.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel for the
applicant
: Adv SM van Vuren
Instructed
by
: Strydom Bredenkamp Attorneys
Counsel for the first
respondent
: Adv TM Khama
Instructed
by
: KM Maredi Attorneys
Date
heard
: 24
th
November 2022
Electronically
circulated on
: 29
th
November 2022
[1]
2004
(3) SA 615
(SCA) at para 19
[2]
2015
(3) SA 532
(SCA) at para 26
[3]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at para 13