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[2021] ZALMPPHC 17
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Uniting Reformed Church of South Africa (General Synod) and Another v Mamabolo Tribal Committee and Others (1927/2020) [2021] ZALMPPHC 17 (4 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER:1927/2020
In
the matter between:
UNITING
REFORMED CHURCH OF SOUTH AFRICA
(GENERAL
SYNOD)
FIRST
APPLICANT
UNITING
REFORMED CHURCH OF SOUTH AFRICA
(NORTHERN
SYNOD)
SECOND
APPLICANT
And
THE
MAMABOLO TRIBAL COMMITTEE
FIRST
RESPONDENT
MP
MAMAMBOLO
SECOND
RESPONDENT
BJATLADI
LAND PROPERTY COMMITTEE
THIRD
RESPONDENT
STATION
COMMANDER MANKWENG SAPS
FOURTH
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicants allege that they are the rightful owners of erf 816
Mankweng–E
(property). The applicants further allege that on
24
th
February 2020, the first to third respondents
(respondents) unlawfully entered the property and threatened to take
control of the
property with force should they wish to do so.
[2]
The applicants further allege that on 29
th
February 2020
the respondents attended the property, and that upon entering the
property, the respondents burned down the library
of Turfloop
Seminary Task Team which is situated on the property. On 2
nd
March 2020 the respondent together with unknown people returned to
the property and started to intimidate and threaten the security
guards, employees and students of the applicants. That the
respondents told the students that they will return at 14h00 on the
4
th
March 2020 and take control of the seminary and
property. The respondents threatened to remove any person they wished
to, with
force from the property and also cause more damage to the
property should any person resist them.
[3]
That resulted in the applicants approaching the fourth respondent for
protection and assistance.
The applicants also contacted a private
security company to provide them with security, but that company told
them that it was
a police matter, and that the company was willing to
assist the police in securing the property should it be necessary.
The fourth
respondent informed the applicants that they should rather
approach a court for an interdict.
[4]
The applicants engaged their current legal representatives who
brought an ex-parte extreme urgent
application wherein the applicants
led oral evidence. In that application the applicants obtained a
temporary interdict with a
rule nisi being issued. The applicants are
seeking confirmation of the rule nisi.
[5]
The respondents are opposing the applicants’ application. The
respondents allege that the
property is within the farm Syferkuil
which falls within the area of jurisdiction of the Bjatjadi Bja
Dikolobe Tribal Authority
and that the Tribal Authority is holding
the land within the vicinity of the farm Syferkuil in trust and in
favour of the people
of Mamabolo. The respondent alleges that in the
1960’s and/or 1985, the apartheid government granted URCSA
permission to
occupy (PTO) the property for missionary purposes only
and that the PTO has stated that it does not confer ownership of the
land
to the church. That the PTO further stated that if the church
violates the terms of the PTO, by amongst others, carry out any other
business save for the missionary at the property, it shall forfeit
the said land to its trustees.
[6]
It is the respondent’s contention that the applicants are no
longer conducting missionary
duties at the property, but that they
are conducting the business of student’s accommodation. The
respondents avers that
when the tribal authority became aware that
the church has ceased its missionary work, it called the applicants’
representatives
to its offices for the purposes of an amicable
settlement, and the return of the property to the community for it to
be held in
trust and in favour of the Mamabolo community. That the
tribal authority engaged the applicants on numerous occasions with
the
hope that they will reach consensus, but that instead the
applicants rushed to court for a declaratory order that the property
be transferred into their names.
[7]
The respondents further allege that the applicants have failed to
inform the respondents that
they (applicants) have obtained an order
calling upon Polokwane Municipality to confer ownership of the
property into their names
within six months from 11
th
November 2011. It is the respondent’s contention that up to
date, ownership of the property has not yet been transferred
into the
names of the applicants. The respondents deny that the tribal
authority and those under its care and instructions have
attended the
property to cause hammock or burn down the property.
[8]
The respondents in their answering affidavit have raised four points
in limine,
that of
non locus standi
to depose the
founding affidavit; non-joinder of the traditional council of
Mamabolo tribal authority and Turfloop seminary task
team; and vague
and embarrassing. With regard to the point
in
limine of
non-locus standi,
the respondents have stated that Bjatladi Bja
Dikolobe Tribal Authority is the rightful owner and not the
applicants.
[9]
In its replying affidavit the applicants have stated that they are
the registered owners of the
property. The Applicants have also
attached to their replying affidavit copy of a deed grant which shows
that the property has
been transferred to the Uniting Reformed Church
in Southern Africa on 7
th
July 2020. The applicants have
also attached a deeds search which shows that the property was
purchased by the Uniting Reformed
Church in Southern Africa on 23
rd
August 2013 for R1707-00.
[10]
It is settled law that the requirements for the grant of a final
interdict are that the applicant must show
a clear right; an injury
actually committed or reasonably apprehended, and the absence of
similar protection by any other ordinary
remedy. Once the applicant
has established the three requisites elements for the grant of an
interdict, the scope if any for refusing
to grant an interdict is
limited. There is no general discretion to refuse the relief sought.
(See Hotz v UCT 2017(2) SA 485 (SCA)
at para 29).
[11]
The applicants in support of their averments that they are the
registered owner of the property have attached
a deed search and a
title deed. As I have already pointed out in paragraph 9
supra
that the applicants have purchased the property on 23
rd
August 2013 and that property has been transferred into the names of
the applicants on 7
th
July 2020, the applicants in my
view, have rights over the property which ought to be protected.
Based on that, the applicants
have established a clear right.
[12]
With regard to an injury actually committed or reasonably apprehended
the applicants in their founding affidavit
have stated that on 29
th
February 2020 the respondents have burned down the library that is
situated on the property. The applicant’s in support of
these
allegations have attached photos of a building which had burned down.
The respondents in the answering affidavit did not
dispute that the
pictures attached to the applicants’ founding affidavit depicts
the library that has burned down. The applicants
have further stated
in the founding affidavit that on 2
nd
March 2020 the
respondents came to the property and told the students that they will
return at 14h00 on 4
th
March 2020 to take control of the
seminary and property. The respondents except to deny that they went
to the property on the day
in question, does not deny that indeed
this incident took place.
[13]
The pictures of the burned building shows that an injury has actually
been committed. The threat of coming
back at 14h00 on 4
th
March 2020 shows the perpetrators still intend to cause more harm on
the property and have no intention of stopping with their
actions. In
my view, the applicants have established the second requisite for the
grant of a final interdict.
[14]
With regard to the third requisite, the absence of similar protection
by any other remedy, the applicants
have tried assistance from South
African Police Services and also from a private security company
without success. The court is
therefore satisfied that the applicants
have established the third requisite for the grant of a final
interdict.
[15]
The respondents dispute that they are responsible for the burning of
the library on the property and also
of making threats of coming back
at 14h00 on 4
th
March 2020 in order to take control of the
seminary property. However, the respondents in their answering
affidavit have stated
that when the tribal authority became aware
that the church has ceased its missionary activities, the tribal
authority called the
representatives of the applicants to its offices
for the purposes of an amicable settlement in relation to the return
of the property
to the community for it to be held in trust. The
respondents have further stated that the tribal authority had engaged
the applicants
on numerous occasions with the hope that they will
ultimately reach consensus. All these engagements did not yield any
fruits.
The respondents avers that the applicants instead of trying
to resolve the matter amicably rushed to court for an order to
transfer
ownership of the property into their names.
[16]
By rushing to court was an indication that negotiations have
collapsed. The tribal authority wanted to reclaim
the property as
they believed it is part of their land and that they are entitled to
claim it back as the church was no longer
using it for the initial
purpose it was allocated to it. In my view, the respondents felt that
the applicants were undermining
the authority of their tribal
authority when they refused to hand back the property, and also when
the applicants rushed to court
for a declaratory order regarding
transfer of ownership. The respondents are the subjects of the tribal
authority and from their
own version, they wanted the property back
but the applicants were refusing to accede to their demands. The only
inference to be
drawn is that they wanted to reclaim what they
believed to be their land back by force and have therefore acted in a
manner as
described by the applicants in its founding affidavit.
[17]
It is a fundamental principle of our law that no one is allowed to
take the law into his/her own hands. The
philosophy of self-help
should be discouraged at all costs. If that is allowed, it will
result in chaos and there will be no public
order. We are living in a
democratic country where the rule of law must be respected at all
times. It follows that the applicants
are entitled to a final
interdict.
[18]
In the result I make the following order.
18.1 The interim order
granted on 4
th
March 2020 is confirmed and made
final.
18.2 The first to third
respondents jointly and severally, the one paying
the other to be absolved
to pay the applicants costs on party and
party scale.
MF.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
APPEARANCE:
Counsel
for the Applicant :
Adv
G Diamond
Instructed
by :
Diamond
Inc
Counsel
for the Respondent :
Adv
KSD Mohoto
Instructed
by :
Kgadi
Phaka Attorneys
Date
of hearing :
01
March 2021
Date
of Judgment :
4
th
May 2021