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2022
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[2022] ZAMPMBHC 31
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Hlongwane and Others v Zeelie N.O. (3359/2020) [2022] ZAMPMBHC 31 (12 May 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 3359/2020
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
12/05/2022
In
the matter between:
WALTER
HLONGWANE
First Applicant
TIKI
LAZARUS
ZITHA
Second Applicant
WALLY
ELVIS
NGOMANE
Third Applicant
and
PETRUS
ZEELIE
N.O.
Respondents
(in his capacity as
interim administrator
of the Mjejane [IT
6335/04])
J
U D G M E N T
MASHILE
J:
[1]
On 9 March 2022, I confirmed the rule nisi granted on 8 December 2020
by Shabangu-Mndawe
AJ. Other than the confirmation of the rule
nisi
the order reads as follows:
“
1.….
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.”
[2]
It is this order that the Second to the Fourth Respondents are
appealing. Their argument
is that given the decision of this Court,
reasonable prospects that another court would reach a different
conclusion exist. I have
considered all eight grounds raised by the
Applicants, and do not believe that there is merit in any of them for
reasons that follow
below. That said, I must make it clear that I do
not intend to discuss each and every ground described in the Notice
of Appeal.
What I proceed to state applies to all the grounds
generally.
[3]
At Paragraphs 20 to 22 of the impugned judgment and order, this court
states:
“
[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 use either Rules
6(8) or 6(12)(C) has shut the door for them
and they must live with
that fact.”
[4]
The statement of the court that ‘their failure to use either
Rules 6(8) or 6(12)(C)
has shut the door for them and they must live
with that fact.’ Is of course legally incorrect. However,
considering the provisions
of the order, it is apparent that the
parties affected by this do not include the Second to the Fourth
Respondents represented
by Mr Ngwenya and no argument to the contrary
was presented. The order affects the Unknown trespassers comprising
the First and
the Eleventh to the Thirtieth Respondents. These
Respondents are not appealing the judgment and quite appropriately,
they are not
represented before court.
[5]
Confronted with this difficulty, Mr Ngwenya referred this court to
the Constitutional
Court case of
Zulu
& Others v Ethekwini Municipality & Others
[1]
[“Zulu”].
The case was not referred to in the heads of either the one Counsel
or the other when the matter was argued
but at first glance, this
Court thought that there might be substance to contemplate its
relevance to this leave to appeal. In
consequence I directed the
parties to file short heads dealing with the pertinence of the case.
They have done so and I am indebted
to them for their respective
contributions.
[6]
The Applicant quoted the following 4 paragraphs from the Zulu case on
which he stated
I should rely to grant leave:
“
[24]
Paragraph 1.1.1. of the interim order authorized the Municipality and
second respondent to take all reasonable
steps to prevent any persons
from, inter alia, occupying the Lamontville property. There is
nothing in that part of that order
to suggest that the occupation of
the property that was to be prevented did not include continuing
occupation that commenced prior
to the granting of the order. Indeed,
the order seems wide enough to include the prevention of the
continuation of such occupation.
That means that in terms of that
part of the order the appellants could be prevented from continuing
to occupy the Lamontville
property.
[25]
Preventing the appellants from continuing to occupy the property
would amount to an eviction because they
would be precluded from
either returning to their homes after a temporary absence or because
they would be kicked out of their
homes to prevent them from
continuing to occupy the property. This means that, to this extent,
that part of the interim order is
an eviction order.
[26]
Paragraph 1.2. of the interim order interdicted any person from
occupying …any structures...
upon [the Lamontville property].
This part is open to a reading that it applies to continuing
occupation of structures on the property
which had commenced prior to
the grant of the interim order. Therefore, it could be used by the
respondents to restrain the appellants
from continuing to occupy
structures that had been built on the property prior to the granting
of the interim order. Furthermore,
to enforce this part of the order
the Municipality and the second respondent could get the South
African Police Service to physically
restrain the appellants from
continuing to occupy their shacks. This means that when the
appellants returned from work, they could
be restrained physically by
police officers from having access to their homes. That also makes
this paragraph an eviction order.
[27]
Based on the above, there can be no doubt that the interim order will
arise the taking of steps
which could have the effect of evicting
from the Lamontville property persons who were already living on the
property or who have
already completed building their homes on the
property when that order was granted. Even on the Municipality’s
and MEC’s
version, when a person has built his own shack on the
property of another, that is an act of occupation of the latter’s
property
and eviction protections apply if that person is to be
prevented from occupying that shack.”
[7]
Perhaps I should open by stating that context is everything. These
four paragraphs
were articulated against the background of the High
Court having denied the unlawful occupiers opportunity to intervene.
Perusing
the entire case, particularly the paragraphs as I have
described above, it is indubitable to conclude that indeed the
unlawful
occupiers had a direct interest in the matter and that the
High Court should have afforded them the opportunity to state their
case before it. Whether or not their argument would have carried the
day before the High Court was irrelevant for the Constitutional
Court
but the point is that they should have been given the opportunity to
state their case. Their success stops at the decision
of the
Constitutional Court to allow them to join the proceedings.
[8]
The Zulu case is therefore not directly in point and reference to it
is categorically
misguided. In any event even if it were applicable,
which I have concluded it is not, it would not have applied to the
Second to
the Fourth Respondents because they are simply not
affected. In the circumstances, I do not agree that reasonable
prospects exist
that another court would reach a different conclusion
from that which this Court has decided. I make the following order:
1.
Leave to
appeal is dismissed with costs including those of two Counsel, if
applicable.
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 12 May 2022 at 10:00.
APPEARANCES:
Counsel
for the Applicants:
Adv TS Ngwenya
Instructed
by:
Cronje, De Waal – Skhosana Inc
Counsel
for the Respondents: Adv
GR Egan
Instructed
by:
Du Toit Smuts Attorneys
Date
of Judgment:
12 May 2022
[1]
2014
(4) SA 590
(CC)