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2022
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[2022] ZANCHC 73
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Vaalharts Water Users' Association t/a Vaalharts Water v Williams and Another (522/2022) [2022] ZANCHC 73 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE PROVINCIAL DIVISION, KIMBERLEY)
Case
No: 522/2022
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: YES
Circulate
to Regional Magistrates: YES
VAALHARTS
WATER USERS’ ASSOCIATION
t/a
VAALHARTS
WATER Applicant
and
MOSIMANEGAPE
GODFREY WILLIAMS
1
st
Respondent
THE
UNIDENTIFIED PERSONS ATTEMPTING
TO
TAKE UNLAWFUL OCCUPATION OF THE
THE
LAND BETTER KNOWN AS THE FARM
GULDENSKAT
NUMBER 36 PORTION 82,
SITUATED
BETWEEN THUYS BURGER STREET
AND
THE PX-CANAL, JAN
KEMPDORP 2nd
and Further
Respondents
Coram:
Lever J
JUDGMENT
LEVER
J
1.
This is the extended return day of a
Rule Nisi
issued out of this Court on the 11 March 2022. Originally, there were
no identified or named respondents in this application. However,
after publication and service as ordered, the first respondent
identified himself and opposed the relief sought by the applicant.
He
was the only person to oppose the confirmation of the
rule
nisi.
2.
The matter was argued in open court on
the 7 October 2022 and the first respondent argued his case in
person.
3.
The
rule
nisi
encompassed an interim
interdict pending the return day, which was in the form of final
relief. In terms of the said interdict,
the respondents were
interdicted,
inter alia
,
from: taking occupation of the relevant property; erecting structures
on the relevant property; entering the relevant property;
and
trespassing on the relevant property.
4.
As
the applicant seeks final relief, it must establish the well-known
requirements for final relief. These requirements are: A clear
right;
An injury actually committed or reasonably apprehended; and the
absence of any similar protection by any other ordinary
remedy.
[1]
5.
The
present application is clearly not an application for an eviction
under the Prevention of Illegal Eviction from and Unlawful
Occupation
of Land Act
[2]
(PIE Act), as
characterised by the first respondent in his answering papers.
6.
At the outset, the applicant sought
condonation for the late filing of the replying affidavit. The first
respondent did not oppose
this application for condonation. After
considering the application for condonation of the late filing of the
replying affidavit,
such condonation was duly granted.
7.
The
first respondent, in his answering affidavit, has clearly not dealt
with the merits and factual allegations made in the applicant’s
founding affidavit. This means that in deciding questions where such
facts and circumstances are relevant this court must make
such
decision on the unchallenged version of the applicant.
[3]
8.
The first respondent in essence relies
on what are best described as
legal
points
in his opposition to the
relief sought by the applicant. These legal points will be summarised
and dealt with hereunder.
9.
The first respondent does not assert a
right to build a residence on the relevant farm. He merely asserts
that it is government
land and that he is building a structure
thereon. It appears from paragraph 5.2 of the papers the first
respondent filed and what
was submitted in court, that first
respondent probably reacted to a land invasion on a part of the
relevant property that he was
not directly involved in. The applicant
by asserting that initially it was not aware that the first
respondent was involved in
this particular invasion of the particular
portion of the farm concerned, tends to support this conclusion. The
first respondent
is on both the versions of the applicant and first
respondent well known to the applicant as a result of several other
applications
between the same parties. It is evident that the first
respondent saw the advertisement that the court ordered as part of
the required
service and assumed the applicant was by subterfuge
trying to get a court order against him. It didn’t occur to the
first
respondent that this matter had nothing to do with him. That it
involved other persons attempting to invade a different and distinct
portion of the relevant farm. The first respondent thereafter opposed
this application.
10.
Despite
the conclusion this court has reached and in case I am wrong in
reaching such conclusion, it is necessary to consider the
defences
raised by the first respondent. The first and apparently main defence
argued by the first respondent is that the present
application is
unconstitutional. The first respondent develops this argument by
referring to Chapter 8 of the Constitution
[4]
and in particular s165 thereof. The said section reads as follows:
“
Judicial
Authority
165.
(1) The judicial authority of the
Republic is vested in the courts.
(2)
The courts are independent and subject only to the Constitution and
the law, which they must apply impartially
and without fear, favour
or prejudice.
(3)
No person or organ of state may interfere with the functioning of the
courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the courts to ensure
the independence, impartiality,
dignity, accessibility and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
(6)
The Chief Justice is the head of the judiciary and exercises
responsibility over the establishment and
monitoring of norms and
standards for the exercise of the judicial functions of all courts.”
11.
The first respondent relies specifically
on section 165 sub-section (5). He argues that annexure 4 to his
answering affidavit, that
is the judgment of the Magistrate for the
District of Frances Baard, held at Jan Kempdorp in case number
84/2020, decided the issues
finally and everybody else is bound by
that decision. In circumstances where the applicant does not appeal
the said decision, the
first respondent argues that even this court
is bound by the learned Magistrates decision.
12.
There are a number of difficulties with
this argument. Firstly, the learned trial Magistrate in case 84/2020
never considered the
merits of the matter. That matter was decided on
technical legal issues. Secondly, such decision on a technical legal
issue can
never bind this court, especially if this court considers
it to be incorrect. To hold otherwise would be tantamount to allowing
an incorrect approach to a technical legal question to become
entrenched in our law.
13.
At the hearing hereof, there were two
questions decided by the learned Magistrate in Jan Kempdorp in case
84/2020 that remained
relevant. The first was the finding by the
learned Magistrate that the deponent to the founding affidavit in
case number 84/2020
had not established his authority to bring the
application on behalf of the applicant. The second related to the
fact that the
piece of land concerned was located in the North-West
Province and the Court for the District of Frances Baard sitting in
Jan Kempdorp
fell under the Nothern Cape Province.
14.
It is convenient to deal with the second
issue first. At the hearing of this matter, Mr Van Tonder who
appeared for the applicant
herein, referred the court to the relevant
proclamations that conferred jurisdiction on the Magistrates Court
for the District
of Frances Baard, held at Jan Kempdorp. The said
court in Jan Kempdorp falls under the jurisdiction of this court and
hence this
court has jurisdiction. The first respondent accepted this
and accordingly there is no need to take this question any further.
15.
Turning now to the first question
outlined above, in matter 84/2020 the learned Magistrate held that
the Chief Executive Officer
(CEO) of the applicant, who was also the
deponent to the founding papers, had not established his authority to
bring the application
on behalf of the then applicant in that he had
not supplied the court with a resolution or delegation to establish
his authority
to bring the said application. In reaching this
conclusion, I believe the learned Magistrate was clearly wrong. The
deponent to
the present application before this court is the same CEO
of the applicant. One merely has to look at the normal
responsibilities
of a CEO which would include litigating where the
applicant would have a duty or an obligation to litigate, as will be
shown hereunder.
In the present circumstances the applicant clearly
has an obligation to litigate. Hence the CEO not only has the right
to bring
the present proceedings he is obliged to bring them.
Secondly, there is a process in the High Court where the authority to
bring
the application is challenged. This is the process contemplated
in Rule 7 of the Uniform Rules of Court and this is now the only
process in which the authority to bring the application may be
challenged. The first respondent has not utilised rule 7.
16.
In my view the CEO of the applicant
clearly has the authority to launch the present application for an
interdict. The rule requiring
a person litigating in a representative
capacity for a corporate entity has only two underlying reasons for
its existence. Firstly,
so that the corporate entity cannot walk away
from the litigation if the outcome does not suit it. Secondly, so
that the corporate
entity involved does not get drawn into
unwarranted litigation. In the present circumstances, it is only the
first reason that
can have any application to the first respondent.
At the very least the CEO of the applicant has ostensible or apparent
authority.
The applicant has also attached the agreement between it
and the owner of the scheme being the Department of Water Affairs and
Forestry. It is clear from this agreement that the applicant has the
obligation to maintain the scheme. This of necessity includes
halting
the construction of unlawful structures on the land. Clearly, this
establishes ostensible authority on the part of the
CEO and in these
circumstances the applicant cannot walk away from this litigation if
an unfavourable order was given against it.
17.
For the sake of completeness, I need to
consider the doctrine of
res iudicata
. Mr Van Tonder submitted that the other cases referred to by the
first respondent either concerned a different area of the relevant
farm or more significantly a different time period and thereby a
different set of facts upon which each relevant application is
based.
In these circumstances, Mr Van Tonder submitted that the first
respondent cannot rely on the doctrine of
res
iudicata
. In my view Mr Van Tonder
is correct in his submission and the first respondent cannot rely
upon the doctrine of
res iudicata
in these circumstances.
18.
The first respondent has not shown a
defence on the merits, he chose not to deal with the merits. The
technical issues raised by
the first respondent have no substance. In
these circumstances one must consider whether the applicant has
established its right
to a final interdict.
19.
The agreement between the applicant and
the Department of Water Affairs and Forestry establishes the clear
right on the part of
the applicant.
20.
The respondents, including the first
respondent, have never asserted any permission to occupy the relevant
farm. In fact, as already
set out first respondent has not disputed
any of the facts set out by the applicant on the merits. In these
circumstances, the
applicant has established the injury element of
the test for final relief.
21.
Mr Van Tonder submitted that in the
present circumstances there was no other ordinary remedy that was
suitable for the applicant
to invoke. Having considered the
submissions made by Mr Van Tonder I agree that there are no other
ordinary remedies that the applicant
could invoke in the
circumstances.
22.
In all of these circumstances the
applicant is entitled to the confirmation of the
rule
nisi
.
23.
Mr Van Tonder moved for a special
punitive costs order against the first respondent because of the
first respondent mounting a frivolous
and inappropriate defence.
24.
The first respondent joined the
application without getting to the root of what the applicant sought.
As indicated above, in all
probability the unlawful behaviour the
applicant complained of did not involve him. Nevertheless, the first
respondent involved
himself in this application and thereby placed
himself at risk in regard to the costs.
25.
After considering the submissions made
in regard to costs by both the applicant and the first respondent, I
have concluded that
there is no reason why the costs should not
follow the result. However, in the present circumstances I do not
believe that a punitive
costs order against the first defendant is
justified. The first defendant will be ordered to pay the costs of
this application
on the ordinary party and party basis.
Accordingly,
the following order is made:
1)
The
rule
nisi
issued out of this court on the
11 March 2022 be and is hereby confirmed.
2)
A final order in the following terms is
issued:
a.
That the respondents, and any person
acting through them, are interdicted and prohibited from taking
occupation of the property
known as the farm Guldenskat Number 36,
Portion 82, situated between Thys Burger Street, and the PX-Canal,
Jan Kempdorp.
b.
That the respondents are interdicted and
prohibited from erecting any structures on the property known as the
farm Guldenskat Number
36, Portion 82, situated between Thys Burger
Street, and the PX-Canal, Jan Kempdorp.
c.
That the respondents are interdicted and
prohibited from entering the property known as the farm Guldenskat
Number 36, Portion 82,
situated between Thys Burger Street, and the
PX-Canal, Jan Kempdorp.
d.
That the respondents are interdicted and
prohibited from trespassing on the property known as the farm
Guldenskat Number 36, Portion
82, situated between Thys Burger
Street, and the PX-Canal, Jan Kempdorp, in terms of section 1 of the
Trespass Act, Act 6 of 1959.
e.
That the South African Police Service
are directed and authorised to take all reasonable and necessary
steps to give effect to this
order.
3)
That the first respondent, Mr
Mosimanegape Godfrey Williams is ordered to pay the costs of this
application on the ordinary party-and-party
scale.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley.
REPRESENTATION:
Applicant:
Adv
AG Van Tonder oio HAARHOFFS INC.
Respondents:
Mr
MG Williams in person
Date
of Hearing:
07
October 2022
Date
of Judgment: 04
November 2022
[1]
Setlogelo v Setlogelo
1914 AD 221
at 227.
[2]
PIE Act 19 of 1998.
[3]
EBRAHIM & ANOTHER v GEORGULAS & ANOTHER
1992 (2) SA 151
(B)
at 154D.
[4]
Act 108 of 1996.