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[2022] ZAMPMBHC 11
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Zeelie v Unknown Trespassers of Farm Impala Boerdery 231, JU, Mpumalanga (3359/2020) [2022] ZAMPMBHC 11 (9 March 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED:
YES
DATE:
09/03/2022
CASE
NO: 3359/2020
In
the matter between:
PETRUS
ZEELIE
Applicant
(IN
HIS CAPACITY AS INTERIM ADMINISTRATOR
OF
THE MJEJANE TRUST [
IT
6335/04])
and
THE
UNKNOWN TRESPASSERS
OF
First
Respondent
FARM
IMPALA BOERDERY 231, JU,
MPUMALANGA
WALTER
HLONGWANE
Second
Respondent
TIKI
LAZARUS
ZITHA
Third
Respondent
WALLY
ELVIS
NGOMANE
Fourth
Respondent
THE
NKOMAZI LOCAL
MUNICIPALITY
Fifth
Respondent
SASOL
GAS
LIMITED
Sixth
Respondent
RCL
FOODS SUGAR AND MILLING (PTY) LTD
Seventh
Respondent
CROCODILE
RIVER MAJOR IRRIGATION BOARD
Eighth
Respondent
ESKOM
SOC
Ninth
Respondent
THE
MINISTER OF
POLICE
Tenth
Respondent
J
U D G M E N T
MASHILE
J:
INTRODUCTION
[1]
On 8 December 2020, the Applicant (“Zeelie”), in his
capacity as the interim
administrator of the Mjejane Trust bearing
Registration Number
IT6335/04
(“the Trust”) launched an urgent application seeking
relief in the following terms:
“
1
…
2
That a rule nisi be issued with a return date of
_______________________,
at 10:00 or at soon thereafter as the
parties may be heard, in the following terms:
2.1
That the Second, Third and Fourth respondents, and any person acting
upon their instruction,
be interdicted and restrained from selling
and/or allocating any land forming part of the property known
as the Farm Impala
Boerdery 231, JU, Mpumalanga for any
purpose whatsoever to any person;
2.2
That the unknown trespassers of the property known as the Farm Impala
Boerdery 231, JU,
Mpumalanga be interdicted and restrained from
entering onto the property without the Applicant’s consent;
2.3
That the unknown trespassers be interdicted and restrained from
clearing or preparing any
land forming part of the property known as
the Farm Impala Boerdery 231, JU, Mpumalanga for any purpose
whatsoever, including but
not limited to the purpose of constructing
or erecting any structure or dwelling thereon;
2.4
That all current construction and/or development on the property
known as the Farm Impala
Boerdery 231, JU, Mpumalanga by any person
be interdicted and restrained, unless expressly authorised in writing
by the Applicant;
2.5
That the unknown trespassers be interdicted and restrained from
utilising and/or damaging
the irrigation canals on the property;
2.6
That the boom and security at the entrance to the property known as
the Farm Impala Boerdery
231, JU, Mpumalanga on the Transnet
servitude road be removed, alternatively demolished forthwith;
2.7
That the Ninth Respondent be interdicted and restrained from
executing any new installations
of electricity supply to the property
without the Applicant’s prior written consent;
2.8
That the Sheriff and/or the South African Police Service be directed
to ensure compliance
with the relief granted in terms of prayers 2.1
to 2.7 above when called upon to do so by the Applicant; and
2.9
That the Fifth Respondent take such steps as may be necessary to
prevent and/or remedy unauthorised
land use on the property known as
the Farm Impala Boerdery 231, JU,Mpumalanga in contravention of the
Spatial Planning and Land
Use Management Act or any other legislation
applicable to its area of jurisdiction in relation to land use
rights;
2.10
That the Second, Third and Fourth Respondents pay the costs of the
application, jointly and severally,
and together with any further
party who opposes the matter.
3
That the relief granted in terms of prayer 2 above operate as interim
relief,
enforceable with immediate effect pending the return date.
4
That the application, together with any order granted ex parte be
served
by the Sheriff on the First Respondent and the Second
Respondent by affixing a copy thereof to notice boards displayed and
accessible
at all entrances to the property known as the Farm Impala
Boerdery 231, JU, Mpumalanga, within 5 days of such order.
5
That the application, together with any order granted ex parte be
served
by the Sheriff on the Third, Fourth, Fifth, Sixth, Seventh and
Eighth Respondents in terms of Uniform Rule 4 within 10 days of such
order.
6
…. “
[2]
Following argument, the court granted the relief returnable on 22
January 2021. in
the interim, the matter became opposed by the Second
to Fourth Respondents (“the Respondents”). I shall refer
to the
Respondents individually as either the Second or Third or
Fourth Respondent where context demands, otherwise they will be
mentioned
as a collective. On 22 January 2021, the rule
nisi
was extended to 6 May 2021. Subsequent to hearing argument between
the parties on 6 May 2021, the court allowed a further extension
to
12 August 2021. Central to the controversy between the parties is
therefore whether or not to confirm or discharge the Rule.
FACTUAL MATRIX
[3]
In terms of the Restitution of the Land Rights Act 22 of 1994 certain
immovable properties
in this province, amongst them, Farms
Ludwichlust 162 JU, Mpumalanga, Tenbosch 162 JU and Impala Boerdery
231, JU, situated in
Mpumalanga [“the Trust properties”],
were restored to their rightful owners, the Mjejane tribe. In
consequence, the
Trust was established in 2004 to acquire, hold and
manage the Trust properties on behalf of and for the benefit of its
beneficiaries.
[4]
To avoid admitting bogus beneficiaries into the restored farms, which
was a distinct
possibility especially having regard to the period
over which the dispossession had occurred, approximately 60 years, a
verification
process for beneficiaries was conceived and later
incorporated into the Trust Deed and entrenched by a court order
dated 12 December
2008. Notwithstanding That 16 years has lapsed, the
verification process of beneficiaries
process
remains unresolved. As such, until now none of the beneficiaries of
the trust has been formally identified for purposes
of receiving
benefits from the Trust.
[5]
The interim suspended trustees who were in office prior to Zeelie
taking over in his
current position were there merely to act as
custodians of the trust properties and its assets pending completion
of the verification
process. Zeelie’s position is not different
to those trustees. Zeelie was only appointed on 11 August 2020 as
substitution
for the suspended interim trustees, Meshack Thembinkosi
Silinda, Simeon Ngomane and Tiki Lazarus Zitha.
[6]
Additionally, Zeelie obtained extended powers in respect of the Trust
on 11 November
2020 following an application in the Gauteng Division,
including but not limited to the power to:
6.1
Investigate and ascertain the nature and extent of the Trust’s
assets, liabilities
and interests;
6.2
Manage, control, recover and retain for the benefit of the Trust all
assets of whatever
nature, belonging to the Trust or to which the
Trust is entitled;
6.3
Institute and/ or defend legal proceedings in the interest of the
Trust and the protection
or recovery of the Trust’s assets.
[7]
Zeelie alleges that the purpose of this application is to preserve
trust property
that is intended for the benefit of the unverified
beneficiaries. The Trust property, it is claimed, is being unlawfully
eroded
by the unauthorised and unlawful sale and/or allocation of
land on the Trust property to third parties.
[8]
These third parties who collectively make up the first respondent are
purchasing,
clearing, preparing and constructing structures on parts
of the Trust property which they have bought from the respondents.
These
third parties are unknown to the Trust hence they are referred
to as ‘the Unknown Trespassers’. It is the alleged
conduct
described aforesaid of the Unknown Trespassers that this
application is intended to interdict and restrain.
[9]
The
subject matter of this application is described as
the
Farm Impala Boerdery 231, JU, Mpumalanga [“the property”]
and the Trust is the registered owner. It is situated
in the
territorial jurisdiction of the Nkomazi Local Municipality [“the
Municipality”], which is within the Mpumalanga
Province.
[10]
The Municipality is cited herein as the Fifth Respondent.
The
Seventh Respondent (“RCL”) is leasing the property from
the Trust for agricultural purposes. The Sixth Respondent
(“Sasol
Gas”) has registered a servitude in its favour for purposes of
a gas pipeline (“pipeline”). The
pipeline cuts across the
property. The pipeline is owned by a third party, Rompco.
[11]
It is a dispassionate demonstrable fact that there exist legal
limitations that concern the ability
of any person to transact with
or encumber the property emanating from the trust deed and the court
order of December 2008. To
begin then with the former, Clause 13.1
prescribes vis-à-vis the trustees’ powers in respect of
the trust and trust
properties that:
“
The
Trustees shall have the following powers:
13.1
To acquire and hold for the Trust, by purchase, lease, donation,
bequest, in exchange or in any lawful
manner whatsoever, any
property, (whether movable or immovable) provided that the Trustees
shall not:
13.1.1
alienate, let or mortgage any immovable property of the Trust, unless
this is done with the full knowledge and consent
of 75% (seventy-five
percent) of the total number of Beneficiaries present at a General
Meeting called for that purpose in terms
of paragraph 19 hereof; or
13.1.2
permit or condone the rent free occupation of any land or building
owned by the Trust from time to time by persons
or Associations of
Persons, save for purposes which are to the benefit of the
Beneficiaries and consistent with the objections
of the Trust.
”
[12]
Turning to the court order of 12 December 2008. Paragraph 11 of the
aforesaid order is unmistakable
in its specificity. It provides that
:
“
no
further fixed property belonging to the applicant be allocated or
sold or leased to any person for residential or any other purposes
or
otherwise encumbered until such time as the identities of the
beneficiaries of the applicant have been ratified by the court
as
contemplated in terms of paragraph 9 above.”
ASSERTIONS
OF THE PARTIES
[12]
Firstly, the Respondents are adamant that there was no justification
for
the
Applicant to approach this Court seeking relief on
ex
parte
basis. They then outline situations that are suitable for
ex
parte
applications and these are as described in Uniform Rule of Court
6(4):
12.1
The Applicant is the only person who is interested in the relief
which is being claimed;
12.2
The relief sought is a preliminary step in the proceedings such as,
applications to sue by edictal citation,
for substituted service, to
attach to found or confirm jurisdiction; and
12.3
The nature of the relief sought is such that the giving of notice may
defeat the purpose of the application,
such as the Anton Pillar
type order.
[13]
It appears that the Respondents also assert that this matter should
not have been entertained
as an urgent matter by the court that first
granted the
rule
nisi
.
In this regard they argue that the Applicants version is that the
impugned conduct by the alleged unknown persons and the Second
to
Fourth Respondents began in 2016. The offending conduct of the
aforesaid parties having begun five years thereafter, it is
staggering that this matter was characterized as urgent. Perceived in
this matter, conclude the Respondents, the urgency, if any,
was
self-created.
[14]
The Respondents explain that the trustees for the time being in 2009
authorised the Third Respondent
to develop portion 9 of the property.
They further clarify that the Third Respondent initially intended to
develop a tourist attraction
but subsequently decided to develop a
residential area on the property following recognition for need for a
residential place closer
to town.
[15]
All the persons residing on the property are beneficiaries of the
Trust. It is the Respondents’
further assertion that no stands
are being sold
.
Instead, claim the Respondents, stands are allocated to qualifying
beneficiaries in exchange for a contribution fee which is then
used
for services. In any event, the settlement referred to is not taking
place on a portion of the property leased to RCL.
[16]
The settlement is not encroaching upon the gas pipeline servitude. No
harm is being caused to
the interests of the Trust or Sasol Gas, RCL
and the Eighth Respondent (“the Board”). Lastly, they
maintain that the
interdicts sought are not competent against
unidentified persons.
[17]
Another assertion brought forward by the Respondents is that insofar
as the court order of 12
December 2008 prohibiting
allocation
or sale or lease of the Trust property to any person for residential
or any other purpose is concerned, Zeelie is blowing
hot and cold
air. Notwithstanding this prohibition contained in the court order,
contend the Respondents, Zeelie has not challenged
this apparent
violation by the Trust and RCL brought about by their conclusion of a
lease agreement in 2016.
[18]
Zeelie’s terse response to the first two assertions is that the
‘horses have bolted’.
On the balance of the arguments,
Zeelie’s counter is that having regard to the limitations
imposed by the trust deed together
with the court order, the
activities by the Respondents and the consequences that flow directly
therefrom are simply illegal. The
conduct of the Respondents and/or
people claiming to have been authorised by them ought to be stopped.
ISSUES
[19]
The issue is whether the Trust has made a case for the confirmation
of the
rule
nisi
granted on 8 December 2020 or not. Needless to state that if it has,
the
rule
nisi
will
be confirmed. A finding to the contrary will necessarily require a
discharge
.
LEGAL
FRAMEWORK AND ANALYSIS
INAPPROPRIATENESS
OF AN EX PARTE APPLICATION
[20]
The three instances described by the Respondents on when a party can
approach a court on
ex
parte
basis are trite. The source is of course the Uniform Rule of Court
6(4) to which the Respondents have so aptly referred. While
the
Respondents might have a valid point, it is raised somewhat belatedly
because they have failed to anticipate its hearing as
envisaged in
Uniform Rule of Court 6(8). For completion’s sake, the Rule
provides that a
ny
person against whom an order is granted ex parte
may
anticipate the return day upon delivery of not less than twenty-four
hours' notice.
[21]
To date there is no answering affidavit addressing the
inappropriateness of the
ex
parte
relief. As such, the court order of 8 December 2020 is still extant.
Besides,
Uniform Rule of Court 6(12)(C) deals with reconsideration and it
provides that a
person
against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order. It is evident that the Respondents did not take advantage
of the provisions of the aforesaid Rule.
[22]
At
the risk of sounding like this Court is advising the Respondents,
this point should have been raised as soon as they learnt of
the
court order granting relief on
ex
parte
basis.
Their failure to used either Rules 6(8) or 6(12)(C) HAS SHUT THE DOOR
FOR THEM and they must live with that fact.
URGENCY
[23]
I do not think it wise to deal with urgency because it was considered
on the day when the matter
came before court for the first time, 8
December 2020. Having assessed all the facts, the court was satisfied
and, using its discretion,
thought it proper to declare that the
matter was sufficiently urgent warranting immediate hearing. In other
words, this Court agrees
with the Trust that the question of urgency
is moot. It will thus be improper to revisit the decision of the
court on that matter.
[24]
In justification of why this Court ought to revisit the decision of
the court that considered
and concluded that the matter be dealt as
one of urgency, the Respondents referred me to the case of
Farmers
Trust V Competition
2020
(4) SA 541
(GP)
at
paragraph 13.
To cut all the verbiage, the truth is that the Respondents did not
bring a reconsideration application as contemplated in Uniform
Rule
of Court 6(12)(C) hence they have missed the boat. Of course this
Court would have been obliged to consider urgency had a
reconsideration application been brought. This is a return day for a
rule
nisi
and urgency has been decided.
AUTHORITY
TO DEVELOP THE TRUST PROPERTY GIVEN TO THE THIRD RESPONDENT
[25]
This contention by the Respondents is completely misguided. The
provisions of Paragraph 13 of
the trust Deed and the court order of
the 12
th
of December 2008 are unambiguous. Perhaps it is worth reiterating
that the Respondents and any other person are prohibited to:
“
13.1.1
alienate, let or mortgage any immovable property of the Trust, unless
this is done with the full knowledge and consent of
75% (seventy-five
percent) of the total number of Beneficiaries present at a General
Meeting called for that purpose in terms of
paragraph 19 hereof; or
13.1.2
permit or condone the rent free occupation of any land or building
owned by the Trust from time to time by persons
or Associations of
Persons, save for purposes which are to the benefit of the
Beneficiaries and consistent with the objections
of the Trust.
”
[26]
In the absence of proof that the Respondents have complied with the
provisions of Paragraph 13,
their explanation that the trustees of
the time being in 2009 mandated the Third Respondent to develop the
Trust property in this
manner stands to be rejected. Besides, their
actions are in direct contravention of the court order of 12 December
2008 because
beneficiary verification process is still ongoing.
[27]
The protestations of the Respondents that the court order is not
applicable anymore notwithstanding,
it remains in full force and
effect until set aside by an appeal court. Similarly, the
prohibitions described in the trust
deed remain in force unless it is
shown that the Respondents have complied with the requirements set
out therein or that the Trust
was validly changed. These limitations
imposed by the trust deed as well as the court order cannot simply be
wished away as the
Respondents would have this Court believe.
NO
SALE OF LAND TO BENEFICIARIES HAS TAKEN PLACE
[28]
Here the contention is that the Respondents are not selling land to
the beneficiaries instead,
the beneficiaries, who it must be accepted
have not been verified as there is no proof of such, are being
allocated land in return
for a contribution fee that is used for the
provision of services. Again, in the absence of evidence that this
conduct was performed
subsequent to the beneficiary verification
process and as such, in compliance with the court order of 12
December 2008, this argument
is unproductive and should not be
entertain at all.
THE
SETTLEMENT IS NOT OCCURRING ON PART OF THE PROPERTY LET TO RCL
[29]
It is common cause that RCL and the Trust have entered into a lease
agreement and that such lease
agreement incorporates Portion 9 of the
Trust property. The Second Respondent confesses that allocation of
stands to the unknown
trespassers is happening on Portion 9, which
belongs to the Trust. The admission of allocation taking place on
Portion 9 by the
Second Respondent manifestly negates the assertion
that no settlement is occurring on land let to RCL. The settlement is
therefore
also burgeoning on leased land, which has a direct negative
bearing on the contractual rights enjoyed by the lessee under the
lease
agreement.
THE
SETTLEMENT IS NOT CAUSING HARM TO THE SIXTH TO EIGHTH RESPONDENTS
[30]
Here the contention is that if this were the case, the Sixth to
Eighth Respondents would have
been part of the controversy. Zeelie
explains that these parties complained to the Trust about the
advancement of the settlement
in a manner that threatens their
interests. The point is the gas pipeline cuts across the property on
which the settlement is mushrooming.
The Trust has had to preserve
and protect its ownership of the property and its actions are not
mutually exclusive with those of
the parties. Accordingly, the
argument of the Respondents must be rejected as devoid of any merit.
ZEELIE
IS ‘BLOWING HOT AND COLD AIR’ ON THE PROHIBITION IMPOSED
BY THE COURT ORDER OF DECEMBER 2008
[31]
The shortest answer to this argument is that the current proceedings
do not concern the lease
agreement between the Trust and RCL. If the
Respondents wish to make their complaint a controversy, they are at
liberty to do so
but this Court cannot countenance clouding of issues
in this manner. In other words, whether or not their point is valid
is neither
here nor there for purposes of resolving the parties’
dispute. The relief sought is described in the notice of motion of
the Trust to which there is no counterclaim. In the circumstances, it
is rejected as being out-of-place.
THE
INTERDICTS SOUGHT ARE NOT COMPETENT AGAINST UNIDENTIFIED PERSONS.
[32]
The Respondents raise the argument that the reliefs sought against
the unknown Respondents are
not fit because Zeelie has failed to
identify the persons constituting the group. The basis of this
assertion, quite evidently,
derives from the case of
City
of Cape Town v Yaya
[2004]
2 All SA 281
(C)]
2 All SA 281
(C)
,
which on closer scrutiny
turns
out not to be not as ‘on all fours’ as the Respondents
would have this Court believe. I find myself in agreement
with the
Trust that the difference between the case
in
casu
and
Yaya
supra
are
profound.
[33]
The Trust could not do more than to cite the Unknown Trespassers as
described because it had
no means of eliciting that information from
them unless of course the Respondents had offered to volunteer it to
the Trust. It
will be recalled that it is the Second Respondent’s
assertion that all the individuals constituting the Unknown
Trespassers
are beneficiaries of the Trust. By implication, this
inexorably means that the beneficiaries are in fact known to the
Respondents.
[34]
That said, it soon became manifest that the contention was
unsustainable because none of the
Respondents could supply proof of a
list of verified beneficiaries. It is trite that the Trust
had
no right in law to demand information from unlawful occupiers. See in
this regard the case of
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012
(6) SA 294
(SCA) at para [46].
[35]
It is clear that the Unknown Trespassers
are,
as it was found in the Yaya case
supra,
an
ascertainable
group, committing distinct acts on the property, notwithstanding that
their names might not be known. In fact, it
is clear from both the
Yaya case
supra
and Rhodes University V Student Representative Council of Rhodes
University
[2017]
1 All SA 617
(ECG)
that
whether or not a party can sue a group of unnamed persons ought to
depend on a consideration of circumstances surrounding each
case.
These cases are no authority that a party cannot sue a group of
unnamed persons regardless that their identity as a specific
group
has been established.
[36]
To bring it closer to home, the Unknown Trespassers is that group of
persons that purchases or
is allocated land by the Respondents in
violation of the provisions of Paragraph 13 of the trust deed and the
court order dated
12 December 2008. The Unknown Trespassers’
citation as an unidentified but ascertainable group, on the facts of
this matter,
is appropriate and is countenanced. The blanket approach
adopted by the Respondents that it is impermissible to sue a group
for
as long as it is unidentified is fallacious and as such,
rejected.
THE
REQUIREMENTS OF A FINAL INTERDICT
CLEAR
RIGHT
[37]
The Trust is the owner of the property. By virtue of that fact it has
a right to protect its
ownership ofit.
IMMINENT
HARM
[38]
To the extent that the Unknown Trespassers have settled on the
property and that others continue
to purchase or are allocated stands
is an encroachment on the right of ownership enjoyed by the Trust.
The right ought to be protected.
Similarly, the rights of the Sixth
to Eighth Respondents, as has been shown
supra
,
also require protection because the settlement constitutes an
invasion of their different rights.
NO
ADEQUATE ALTERNATIVE REMEDY
[39]
The Trust seeks to stop any further development of the settlement. It
was made clear during argument
in court that there is no prayer that
seeks to evict any of those Unknown Trespassers who have since
settled on the property. A
final interdict in the manner proposed is
in fact an appropriate remedy as there exists no sufficient
alternative remedy to address
the situation.
CONCLUSION
[40]
In the circumstances, I am constrained to grant relief in the terms
proposed by Zeelie.
ORDER
[41]
I grant an order in the following terms:
1.
The Rule Nisi issued against
the Respondents on 8 December 2020 under case number 3359/2020 is
confirmed.
2.
The above-named Eleventh to
Thirty-First Respondents are joined to the proceedings as such.
3.
The unknown trespassers of the
property known as the Farm Impala Boerdery 231, JU, Mpumalanga,
comprising the First Respondent,
together with the Eleventh to
Thirty-First Respondents, are interdicted and restrained from
entering onto the property without
the Applicant’s consent.
4.
The unknown trespassers,
comprising the First Respondent, together with the Eleventh to
Thirty-First Respondents, are interdicted
and restrained from
clearing or preparing any land forming part of the property known as
the Farm Impala Boerdery 231, JU, Mpumalanga
for any purpose
whatsoever, including but not limited to the purpose of constructing
or erecting any structure or dwelling thereon.
5.
The unknown trespassers,
comprising the First Respondent, together with the Eleventh to
Thirty-First Respondents, are interdicted
and restrained from
utilising and/or damaging the irrigation canals on the property known
as the Farm Impala Boerdery 231, JU,
Mpumalanga.
6.
The Sheriff and/or the South
African Police Service are directed to ensure compliance with the
relief granted herein and the order
of 8 December 2020 when called
upon to do so by the Applicant.
7.
The Second, Third and Fourth
Respondents are directed to pay the costs of the application.
______________________________
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 09 March 2022 at 10:00.
APPEARANCES:
Counsel
for the Applicant:
Adv GR Egan
Instructed
by:
Du
Toit-Smuts & Partners
Counsel
for the Respondents:
Adv TS Ngwenya
Instructed
by:
Cronje,
De Waal-Skhosana Inc
Date
of Judgment:
09
March 2022