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[2022] ZAECMKHC 107
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Nodangala and Others v Bradolf (Pty) Ltd and Others (1494/2020) [2022] ZAECMKHC 107 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 1494/2020
In
the matter between:
SIBONGILE
NODANGALA
First Applicant
VUYOKAZI
NODANGALA
Second Applicant
NOLUNDI
NODANGALA
Third Applicant
PHINDILE
NODANGALA
Fourth Applicant
MZUVUKILE
LUDZIYA
Fifth Applicant
And
BRADOLF
(PTY)
LTD
First Respondent
MINISTER
OF AGRICULTURE AND RURAL
DEVELOPMENT
Second Respondent
IN
RE:
BRADOLF
(PTY)
LTD
First Applicant
And
PERSONS
ATTEMPTING TO UNLAWFULLY OCCUPY
FARM
315,
NGQELENI
First Respondent
MINISTER
OF AGRICULTURE, LAND REFORM AND
RURAL
DEVELOPMENT
Second Respondent
JUDGMENT
BESHE
J:
[1]
At the instance of the first
respondent in this matter a
rule
nisi
was issued on the
18 August 2020 calling upon persons attempting to unlawfully occupy
Farm 315, Ngqeleni (described as first respondent)
and the Minister
of Agriculture, Land Reform and Rural Development (second respondent)
to show cause why the following order should
not be made final:
“
1.
That a rule
nisi
do hereby issue calling upon the First
Respondent and/ or any other interested party to show cause of
Tuesday, 15 September 2020
at 09h30 why an order in the following
terms should not be made final:
1.1
That the First Respondent be interdicted and restrained from entering
upon Farm 315, Ngqeleni;
1.2
That the First Respondent be interdicted and restrained from erecting
structures upon and/ or encroaching upon Farm 315, Ngqeleni;
1.3
That the First Respondent demolish and remove any structures erected
by
them upon and/ or encroaching upon Farm 315, Ngqeleni, within 10
(TEN) days of the date of the final order herein failing which
the
Applicant is authorised to demolish and remove the above structures;
1.4
That the costs of this application be paid by any party who opposes
it.
2.
That pending the finalisation of this application, paragraphs 1.1 and
1.2 above operate as an interim interdict.
3.
That the Applicant be authorised to serve a copy of the interim order
on the First Respondent in the following manner:
3.1
By publication once in a newspaper circulating in the district of
Ngqeleni;
3.2
By displaying a copy thereof at a prominent place at Farm 315,
Ngqeleni;
3.3
By reading the order on three separate days by way of megaphone at
Farm 315, Ngqeleni.
4.
Further and/ or alternative relief.”
[2]
The
rule
was confirmed on
the 15 September 2020. This time it was specifically directed at
Ntetelelo Nodangala
,
Tyron Maritz
and
Phateka
Stofile
as well as the unnamed persons who are currently erecting
structures on the farm in question. The five applicants are now
seeking
a rescission of this order.
The
parties
[3]
The founding affidavit is
deposed to by the first applicant
Mr Sibongile Nodangala
. He
describes himself as an adult unmarried male person who resided at
Mconco, Ndanya Administrative Area, Ngqeleni District. The
second
applicant is described as an adult unmarried female person. The third
applicant is also described as an adult unmarried
female person. Both
second and third applicants reside in the same area as first
applicant. The fourth applicant is described as
an adult female
person residing at Erf 254 Extension 1 in the Libode District. The
fifth applicant is described as an adult male
person residing at
Misty Mount Administrative Area, Libode District. It is asserted that
all five applicants fall under the banner
of first respondent in the
main application. First respondent in the main application is
described as “persons attempting
to unlawfully occupy farm 315
Ngqeleni”.
[4]
The first respondent is a
private company with limited liability duly registered and
incorporated
in terms of company laws of the Republic of South
Africa, with its registered address at 2 Jacaranda Avenue, Morrison,
Mtubatuba,
KwaZulu Natal.
[5]
The second respondent is the
political head in the Department of Agriculture, Land Reform
and
Rural Development (DALRD / the department).
[6]
In the founding affidavit
Mr
Nodangala
goes to town explaining how the applicants are claiming
that they are the right possessors / owners of the piece of land in
question.
I take note of the history sketched therein in this regard
to the extent that it suggests that the applicants are clothed with
the necessary
locus standi
to apply for the rescission of the
impugned order. And that they have a
prima facie
defence with
a reasonable prospect of success. But these proceedings in my
understanding are not designed to determine who is the
rightful owner
/ possessor of the piece of land concerned. Briefly stated, the
applicants’ case is that the land in question
was allocated to
their grandmother in the year 1960. She held a permission to occupy
(PTO) same until her passing in 2003. During
2019 – 2020,
Mr
Nodangala’s
family comprising of him, second and third
applicants as well as other family members subdivided the piece of
land and allocated
it to both family and none family members.
[7]
It was on or about the 15
October 2020 that he was informed by second applicant that their
building structures were being demolished on the piece of land
concerned, presumably on the strength of the order of the 15
September
2020.
[8]
The rescission of the order is
sought to be rescinded in terms of
Rule 42 (1)
of the
Uniform
Rules
of this court. On the basis that the order was erroneously
sought or erroneously granted in the absence of the parties affected
thereby.
[9]
It is alleged that the judgment
was erroneously sought or granted because:
1.
The sheriff who dealt with the process by serving the papers of the
first respondent in the main application did not have jurisdiction
to
do so in Ngqeleni where the property is situated being a Sheriff for
the Libode district.
It
is therefore applicants’ case that had the court been aware of
this, it would not have issued the order.
[10]
Secondly, so the applicants assert,
Mr Mkono
who was purportedly appointed by the Development Trust lacked the
locus standi
to conclude a lease in respect of the property /
land in question with the second respondent. This, because
Mr
Mkono’s
appointment was not made in writing by the Master
as provided for by the
Trust Properties Control Act
.
Applicants assert that had the judge who issued the order been aware
of that, he would not have issued the order.
[11]
Thirdly, the applicants contend that the order is
rescindable on the basis that no lease was concluded between
the
first respondent and the so-called community trust at the time the
application was launched. So, first respondent did not have
locus
standi
to apply for the impugned order. First respondent sought
to establish that he has
locus standi
in judicio
by
filing a further affidavit without seeking leave to do so from the
court.
[12]
According to the applicants, the interim order could not have been
effectively served in the
manner described thereon because no one
resided on the farm in question (Farm 315). This is so because no one
lives there. There
are only building structures.
[13]
Applicants also complain about the non-joinder of
the chief of the area concerned, whose role amongst others
is to
protect the land under his jurisdiction.
[14]
The application is opposed by both respondents.
First
respondent’s allegations
[15]
The land in question is a newly unregistered state
property. It was subdivided from Ndonyeni Farm 127. First
respondent
approached the second respondent in 2015 with a view of concluding a
long lease over the said land so as to develop
a convenience centre.
The deponent to the answering affidavit,
Mr Andrew Bradley Payne
who is the sole director of first respondent sketches the process
that was followed which culminated in first respondent being
granted
authority to submit a subdivision diagram by the relevant official.
Same was to be submitted to the Surveyor-General. At
paragraph 10.10
of answering affidavit
Mr Payne
alleges that
Mr Msindiseni
Nodangala
, who is a sub-headman to the chief and uncle to the
first and second respondents, as well as
Cetyiswa Gladys Nodangala
who is first applicant’s aunt and mother to second
applicant were part of the process. In that they voted in favour of
the
conclusion of the lease agreement in question. Further that the
family of first to third applicants have been aware of, and fully
supported the process since 2015.
[16]
In 2019, unknown persons started erecting
structures on the land in question. Upon enquiring from
Mr
Msindiseni Nodangala
, he was assured that pieces of land were
being sold but that did not affect the land that was the subject of
the lease agreement.
It however turned out that the sale of pieces of
land also encroached on the leased land. Around 2020, the erection of
fencing
increased, leading to first respondent’s application.
The interim order dated the 18 August 2020 was also displayed on a
notice board erected on the piece of land in question. First
applicant is reported to have been present and threatened the person
who was erecting the notice board. First applicant sent a copy of the
interim order to
Mr Mkono
via WhatsApp, with a demand that the
latter provides him with proof that he was the owner / custodian of
the land in question.
[17]
As far as the permission to occupy that was issued to applicants’
grandmother, he was advised
that it lapsed when the holder died. In
any event, the permission to occupy was purportedly issued in 2020.
Yet, according to the
District Director of the department a
moratorium was placed on issuing permission to occupy in 2011.
Confirmation letter from the
department in this regard attached.
First respondent denies that the judgment sought to be rescinded was
erroneously sought or
granted. Having been aware of the final order
on the 15 October 2020, they failed to apply for rescission within a
reasonable period.
The discrepancies regarding the issuing of the
permission to occupy in 2020 was adequately explained by the
applicants.
[18]
Regarding the lack of jurisdiction on the part of
the Sheriff, according to
Mr Payne
, the land in question is
situated in Misty Mount which falls under the service area of the
Libode Magisterial District. The trust
was registered and letters of
authority issued to the trustees prior to the conclusion of the lease
agreement on 14 August 2020.
The Master’s letters of authority
dated 8 July 2020 issued to the Ndanya Trust are also annexed to the
answering affidavit
by the first respondent, with its trustees being:
Saziso Nkomo
,
Masixole Nodangala
,
VakalaMoyake
,
Tembile Jozana
,
Princess Mapipa
and
Ntombozuko
Nodangala
. So is a copy of the lease agreement dated 14 August
2020. Returns of service from the Sheriff for the district of Libode
were
filed in respect of
Ntekelelo Nodangala
, the displaying
of the interim order on eight structures on Farm 315, on one
Mr
Tyron Maritz
(personally) as well as one
Pateka Stofile
(personally).
[19]
The answering affidavit on behalf of second
respondent is deposed to by
Mr Zukile Pityi
, Chief Director
attached to the department in question.
Mr Pityi
explains that
Portion 315 Ngqeleni was subdivided from farm Ndonyeni 127 Ngqeleni.
It forms part of surveyed, unregistered land
also known as
unalienated land, communal land or state owned land. No title deed
exists and such land is owned by the National
Government of the
Republic of South Africa. He proceeds to sketch the process that was
followed in dealing with first respondent’s
application to
develop the piece of land in question as a Convenience Centre. This
processs culminated in the approval by the Minister
of the department
of a long term lease as sought by the first respondent on 19 November
2019.
[20]
Applicants’
locus standi
to bring
this application is assailed on the basis that: the right of the
applicants’ grandmother to occupy the said piece
of land came
to an end upon her passing. Reference in this regard is made to
paragraph 8 of the
Proclamation 26 of 1938
. Asserting that at
no stage after the applicants’ grandmother’s demise was
the property re-allocated to the applicants.
It could not have been
allocated to any of the applicants in 2019 as they suggest due to the
moratorium that was placed on allotments
in 2011. As stated earlier,
this issue had since been explained by the applicants. Namely that
2019 is when they sought a copy
of their grandmother’s
permission to occupy.
[21]
In reply, the applicants seem to advance a
different case or additional grounds. Namely,
Section 25 (6)
of
the Constitution which in my view is irrelevant. In any event, as I
stated earlier, I do not consider these proceedings to be
concerned
with the determination of who the rightful possessor of the piece of
land is. But, with whether the assailed judgment
/ order was
erroneously sought or erroneously issued in the absence of the
applicants. They, however explain that the correct date
for the
permission to occupy is that of 1960 when it was issued to the
applicants’ grandmother. The later date appeared as
a result of
a mistake from the department’s official and relates to the
date he sought a copy of the permission to occupy.
First applicant
denies that he was in possession of the interim order as alleged by
the first respondent.
[22]
Rule 42 (1) (a)
of the
Uniform Rules
of
this court provides that a court may rescind or vary an order or
judgment erroneously granted in the absence of the party affected
by
it. Common law, on which the applicants rely in the alternative also
envisages the setting aside of a judgment on the following
grounds:
(a)
fraud;
(b)
Justus
error;
(c)
in exceptional circumstances when new documents have been discovered;
(d)
where judgment has been granted by default; and
(e)
in the absence between the parties of a valid agreement on the
grounds of
justa causa
.
Applicants
do not state the basis upon which they contend the judgment falls to
be rescinded on the basis of common law.
[1]
It is trite that the purpose of
Rule
42
is
to expeditiously correct an obviously wrong judgment or order. Trite
also is the requirement that the application for such rescission
or
variation should be made within a reasonable time.
[2]
In this case, the
rule
nisi
was issued on the 18 August 2020 and confirmed on the 15 September
2020. According to the applicants, this came to their attention
on or
about the 15 October 2020. The notice of motion in respect of this
application is dated the 14 July 2021. No explanation
is proffered as
to why it took some nine months before the application for rescission
was launched.
[23]
In addition to the requirement that the
application for rescission should be made within a reasonable time
after it become aware of the judgment, are three other requirements.
Namely:
(i)
The applicant(s) must give a reasonable explanation for his default;
(ii)
He must show that his application is made in good faith; and
(iii)
Show that he has a
bona
fide
defence which
prima
facie
carries some prospect of success.
[3]
[24]
Applicants have not explained why after becoming
aware of the issuing of the
rule
nisi
they did not take
any steps to oppose the confirmation thereof. It is not clear from
the founding affidavit how the applicants
could have missed the
notices that were displayed on several parts of the farm in question,
as per Sheriff’s return. Curiously
Mr Notshibongo
who
states that he was building a house on the said farm for third
applicant only points out that they only build during the day
and not
at night. He does not say during what period, does not say there were
no such signs displayed, namely of the
Rule Nisi
.
Ntetelelo
Nodangala
does not depose to an affidavit to deny that he was
called by the Sheriff in connection with the service of the
rule
nisi
. Or
Pateka Stofile
who was served personally.
Attack
on the Sheriff’s jurisdiction
[25]
The Sheriff being one for Libode district is said
to have lacked jurisdiction to serve the court process
in the
Ngqeleni District. It being alleged that it is only the Ngqeleni and
Mthatha Sheriffs who had the necessary jurisdiction.
In support of
this assertion, applicants attach computer printout which reflects
that
Mr Tonjeni’s
service areas under the Libode
Magisterial Districts. However, the same
Mr G Tonjeni
is
listed as Sheriff for other areas e.g. Bizana. According to first
respondent, the land in question falls under Nyandeni Administrative
Area which forms part of Misty Mount and falls under service area of
the Sheriff for the district of Libode. Misty Mount is listed
under
annexure SN10 to applicants’ founding affidavit as falling
under Libode Sheriff’s service area. In the lease
agreement
purportedly concluded between first respondent and the trust, under
Clause 1.2.1
Building is said to mean “the buildings and
improvements to be erected by the lessee on the property, including
specifically
the Misty Mount Convenience Centre”. Second
respondent’s answering affidavit also refers to a Misty Mount
Convenience
Centre. There can therefore be no merit to the submission
that the order in question was erroneously issued in this regard by
reason
of the Sheriff lacking jurisdiction over the Ngqeleni
district.
Lack
of
locus standi
on the part of the
first respondent
[26]
The objection also lacks merit. The lease
agreement was concluded on the 14 August 2020, the letters of
authorisation in respect of the trustees of the Ndanya Development
Trust were issued on the 8 July 2020. Steps to lease the property
had
commenced in 2015.
[27]
No case has been made for the non-joinder of the
headman
Mr Nkomo
. Since 2018, the vesting of Ndonyeni Farm 127
was in second respondent. According to first respondent, the
sub-headman as well
as another member of the
Nodangala
family
was involved in the process that led to the Farm vesting in the
second respondent. Besides the sub-headman
Mr Msindiseni Nodangala
disavowed knowledge of persons who were selling portions of the
land.
Prospects
of success
[28]
I do not propose to traverse the whole process of
how the land ended up being leased to the first respondent.
From the
steps followed, it would seem to me that there are no prospects of
success in impugning the process and protocols followed.
The nub of
applicants’ case is that because the permission to occupy was
held by their grandmother, her family cannot be
deprived of the land
in question. Yet, the law seems to be clear that upon the death of
the permission to occupy holder, the right
to occupy such an
allotment shall
ipso facto
be cancelled. Even their invocation
of the provisions
Interim Protection of Informal Land Rights Act
31 of 1996
appears to be misplaced as they themselves assert that
they were compensated for having been moved from the said land.
[29]
I am therefor not persuaded that the applicants
have shown sufficient cause for rescission to be granted
nor am I
persuaded that they have a
bona fide
defence which
prima
facie
carries the prospects of success. The applicants have
failed to make out a case for the rescission of the
rule nisi
that was confirmed on the 15 September 2020 be it in terms of
Rule
42
of the
Rules
of this court or the common law.
[30]
For all the reasons stated hereinabove, the
application is dismissed with costs.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants
:
Adv: E. N. Nyobole
Instructed
by
: MNQAYANA ATTORNEYS
C/o
YOKWANA ATTORNEYS
10
New Street
MAKHANDA
Ref:
Mr Yokwana
Tel.:
046 – 622 9928
For
the 1
st
Respondent :
Mr. S. C. Clark
Instructed
by
: I C CLARK INC.
C/o
NEVILLE BORMAN & BOTHA
22
Hill Street
MAKHANDA
Ref:
Mr J Powers
Tel.:
046 – 622 7200
For
the 2
nd
Respondent :
Adv: A. Desi
Instructed
by
: THE STATE ATTORNEY - GQEBERHA
C/o
WHITESIDES ATTORNEYS
53
African Street
MAKHANDA
Ref.:
Ms R Asmal/mb/C12927
Tel.:
046 – 622 7117
Date
Heard
: 11 August 2022
Date
Reserved
: 11 August 2022
Date
Delivered
: 13 December 2022
[1]
See
Erasmus Superior Court Practice Vol 2 Service 7, 2018 D1-563.
[2]
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977 (4) SA 298
at 306 H.
[3]
See
Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1.