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[2021] ZALMPPHC 42
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Lepelle Nkumpi Local Municipality v The Bakgaga Ba Ga-Mphalele Traditional Authority and Others (6753/2018) [2021] ZALMPPHC 42 (5 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION
,
POLOKWANE)
CASE
NO
:
6753
/
2018
REPORTABLE:
YES
OF
INTEREST TO THE JUDGES: NO
REVISED
Date
5/8/2021
In
the matter between
:
LEPELLE
NKUMPI LOCAL MUNICIPALITY
APPLICANT
And
THE
BAKGAGA BA GA-MPHALELE TRADITIONAL
1ST
RESPONDENT
AUTHORITY
LEDWABA
-
NDLOVU
TRADITIONAL AUTHORITY
2ND
RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL
,
3RD
RESPONDENT
DEPARTMENT
OF COOPERATIVE GOVERNANCE,
HUMAN
SETTLEMENTS AND TRADITIONAL
AFFAIRS
THE
MINISTER, DEPARTMENT OF COOPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
4TH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an application in terms of which the Applicant seeks relief
against the First and Second Respondents and for an order in the
following terms
:
1.
Declaring that the applicant is the owner of the various constituent
portions of the
farm known as Voorspoed 458 K
.
S
.,
held under deeds of title enumerated in
annexure
"
A
"
to the notice of motion.
2.
Declaring that neither the first nor the second respondents have any
rights or are
possessed of
the
power
to purchase
,
to
dispose of or
,
to
in any manner whatsoever
,
transact
,
or approve any land use on the various
portions of the farm known as Voorspoed 458 K
.
S
.
without the express written approval of
the applicant herein
,
including
but not limited to
:
2.1.
any developmental rights
;
2.2.
the disposal of undivided erven on
the constituent portions of the
farm;
2.3.
the issuing of "Permissions to
Occupy
"
any undivided erven on the constituent
portions of the farm
;
2.4.
providing assistance of any nature
to and/or facilitating the
occupation and any development of undivided erven on the constituent
portions by any individual.
3.
Interdicting and restraining the first and second respondents from
purchasing
,
disposing
of or
,
in
any manner whatsoever
,
transacting
with respect to the various constituent portions of the farm known as
Voorspoed 458 K.S
.
without
the express written approval of the applicant herein
,
including but not limited to the conduct
set out in paragraphs 2.1-2.4 above
.
4.
That the first and second respondents be ordered to pay the costs of
this application
;
5.
Further and/or alternative relief
.
[2]
Essentially
,
in
paragraph 1 of the notice of motion the Applicant seeks a declaratory
order that it is the owner of the var
i
ous
constituent portions of the Farm known as Voorspoed 458 K
.
S.
held under Deeds of Title enumerated in Annexure
"
A
"
to the notice of motion
.
The ancillary relief sought in paragraph
2 and 3 of the notice of motion is predicated upon the declaratory
order sough
t
under
paragraph one
.
The
aforesaid constituent portions of the Farm Voorspoed 458 K.S. as per
annexure
"
A
"
to the notice of mot
i
on
are the following
:
ANNEXURE
"A" TO NOTICE OF MOTION
Portion Number
Owner
Title Deed
Reg. Date
1
Lepelle-Nkumpi
Local Municipality
T133897/2005
2005-10-19
8
Lepelle-Nkumpi
Local Municipality
T131224/2005
2005-10-12
9
Lepelle-Nkumpi
Local Municipality
T131223/2005
2005-10-12
11
Lepelle-Nkumpi
Local Municipality
T131483/2005
2005-10-13
12
Lepelle-Nkumpi
Local Municipality
T131482/2005
2005-10-13
14
LepeIle-Nkumpi
Local Municipality
T133895/2005
2005-10-19
15
Lepelle-Nkumpi
Local Municipality
T130050/2005
2005-10-11
16
Lepelle-Nkumpi
Local Municipality
T171375/2005
2005-12-22
17
Lepelle-Nkumpi
Local Municipality
T130051/2005
2005-10-11
18
Lepelle-Nkumpi
Local Municipality
T133896/2005
2005-10-19
19
Lepelle-Nkumpi
Local Municipality
T133894/2005
2005-10-19
20
Lepelle-Nkumpi
Local Municipality
T134717/2005
2005-10-20
21
Lepelle-Nkumpi
Local Municipality
T132952/2005
2005-10-17
22
Lepelle-Nkumpi
Local Municipality
T134716/2005
10/20/05
The
Parties
[3]
The applicant is the LEPELLE NKUMPI LOCAL MUNICIPALITY
,
a local municipality duly established by
virtue of the provisions of section 12 of the Local Government:
Munic
i
pal
Structures Act
,
117
of 1998
,
with
principal address of operations at 170 Ba Lebowakgomo
,
Chuenes Poort.
[4]
The first respondent is the BAKGAGA BA GA-MPHALELE TRADITIONAL
AUTHORITY
,
a
traditional authority duly recognised in terms of the provisions of
the Limpopo Traditional Leadership and Institutions Act
,
6 of 2005
,
with principal place of operations at
Seleteng Tribal Offices at Ga-Mphahlele,
Limpopo Province
.
[5]
The second respondent is the LEDWABA-NDLOVU TRADITIONAL AUTHORITY
,
a traditional authority recognised in
terms of the provisions of the Limpopo Traditional Leadership and
Institutions Act
,
6
of 2005
,
with
principal place of operations at Ga-Ledwaba Village
,
Limpopo Province
.
[6]
The First and Second Respondents are
,
by
virtue of the aforesaid Limpopo Traditional Leadership and
Institutions Act 6 of 2005
,
inter
alia
enjoined to
:
6.1.
promote the interests of the traditional community in the area where
it is seated
;
6.2.
in cooperation with the relevant municipalities and state
departments
,
assist
with the administration of the traditional community
;
6.3.
actively participate in the development of the area of the
traditional community
.
[7]
The Third and Fourth Respondents have a direct and substantial
interest
in the conduct of the First and Second Respondents in that
the role of traditional leaders, customary law and customs of
communities
fall within the functions of the Third and Fourth
Respondents
.
No
relief is sought against the Third and Fourth Respondents
,
they having been joined because they
have the interest to which I have adverted hereinabove
.
Purpose
of the Application
[8]
The relief and declaratory orders sought in this application are
to
ensure that the Applicant is able to fulfill its execut
i
ve
obligations under the Constitution
.
Confirmation hereof appears from section
154 of the Constitution of the Republic of South Africa 1996
,
which compels national and provincial
Government to support and strengthen the
capacity of the Applicant so as to enable it to exercise its powers
and to perform its
constitutional functions
.
[9]
The Applicant is the registered owner of fourteen (14) constituent
portions of the farm Voorspoed 458 K
.
S.
,
that in aggregate, essentially make up
Lebowakgomo (
"
the
Land
"
)
.
The land in Lebowakgomo has historically
fallen victim to numerous and persistent illegal invasions and the
Applicant has
,
in
the past years
,
incurred
enormous expenditure in warding off
these invasions on a case by case basis
.
In
the vast majority of instances these perpetrators of the attempted
invasions purport to act under the auspices of traditional
authorities (in this case either the first or second respondents) who
apparently sell permissions
to
occupy
undivided portions of this farm
,
despite
the fact that they are neither the owners nor the holders of any real
right to the property
.
[10]
This application is accordingly aimed at enjoining these respondents
to act in accordance with their defined obligations under
the
Constitution and other subsidiary legislation and to interdict any
future conduct that might serve to contravene the defined
roles of
the First and Second Respondents in the land development and reform
process.
[11]
This application is opposed by both the First and Second Respondents.
Both Respondents
filed their answering affidavits
.
However
,
the Second Respondent failed to serve
and file heads of argument and did not appear in Court at the hea
ri
ng
of this matter to present its argument.
Points
in Limine
[12]
The Fi
r
st
Respondent took the following
points
in limine
:
12
.
1
.
That the Registrar of Deeds is an
affected party and should have been joined in these proceedings
(Non-joinder)
.
12
.
2.
That the Minister (without denoting the portfolio
)
as custodian of land sho
u
ld
have been joined
.
At
the hearing of the matter Counsel for the First Respondent abandoned
the
points in
limine
.
In the result I shall not take this
aspect or issue any further
.
History
of the Farm Voorspoed 458 K.S.
[13]
Prior to having been consolidated into Voorspoed 458 K.S
.,
portions
of the land were util
i
zed
by the First and Second Respondents' communities from June 1962
.
The
Second Respondent was by then known as the Ndlovu Tribal Authority
.
According
to a report issued by an ad hoc committee to the Vice Secretary
for the State Development relating to the apportionment
of land to
traditional Headmen in the 1960s and Government Gazette publication
dated 29 Ma
r
ch
1968
[1]
land
had been allocated to the First and Second Respondents during the
late 1960s
.
Such
land constitute certain portions of the farm Voorspoed 458 K
.
S
.
[14]
On or about the 21 December 1973 the former Chief Minister of the
then Lebowa Government
,
earmarked
many of the farms that had been allocated to the Ndlovu and Mphahlele
Tribal Authorities
,
as
farms upon which the Township of Lebowakgomo would be established
.
According
to a memorandum ostensibly drafted by the then Department of Rural
Development and Land Reform
,
the
then Lebowa Leg
i
slative
Assembly during 1973/1974 expropriated certain of the farms that had
been allocated to the Ledwaba-Ndlovu Traditional Community
for
purposes of establishing the Lebowakgomo township
.
This
memorandum is annexed to the found
i
ng
affidavit.
[2]
A
decision had been reached by the said legislative assembly to
compensate the Ledwaba-Ndlovu Traditional Commun
i
ty
for the e
x
propriated
fa
r
ms
,
by
allocating land in the lmmerpan area to the said community
.
[15]
The said farms so e
x
propriated
and earmarked for purposes of establishing Lebowakgomo Township are
:
Kafferkraal No 167 K.S
.;
Rooibokvlakte No 120 K.S
.;
Uitvlucht No 117 K.S
.;
Droogte No
1
18
K
.
S
.;
Rooiboklaagte No 111 K
.
S
.
and Randjies No 112 K.S
.
At that time that land was still owned
by the Republic of South Africa
.
With
the advent of the Constitut
i
on
of the Republic of South Africa
,
the
area of jurisdiction of the then Lebowa legislative assembly was
incorporated into the Province of Limpopo
,
which became a successor in law to the
Lebowa legislative assembly
.
[16)
The various portions of the farm Voorspoed 458 K.S
.
have been the subject matter of
protracted litigation in the past years
.
Various portions continue to be invaded
by individuals who wish to permanently reside there
,
and ostensibly act pursuant to
authorities given to them by the First and Second Respondents
.
This
is one of the issues to be decided in the present case
.
Ownership
of the land
[17)
During 2005 various farms and portions of farms now comprising
Voorspoed 458 K
.
S
.,
were consolidated and by way of various
Deeds of Donation
,
transferred
to the Applicant. The Applicant consequently holds the Title Deeds in
respect of various portions comprising the farm
Voorspoed 458 K
.
S
.,
and particularly portions 1
,
8
,
9
,
11
,
12
and 14-22 as outlined in paragraph 2 hereinabove
.
The
Certificate of Consolidation
of the aforesaid farms into Voorspoed 458 K
.
S
.
during
2003 is annexed to the founding affidavit
[3]
.
The
various Deeds of Registration of the fourteen (14) portions into the
name of the Applicant are also annexed.
[4]
[18]
The Applicant is therefore the undisputed owner of the land
in
respect of portions 1
,
8
,
9
,
11
,
12
and 14-22
.
This
was rightly conceded by the First Respondent at the hearing of this
matter. The Second Respondent disputes Applicant
'
s
ownership without any valid ground. It states that members of its
community have been in lawful possession of the land long before
the
various Deeds of Donation were concluded. They aver that the various
Deeds of Registration of the fourteen portions into the
name of the
Applicant were done unlawfully
.
There
is however a paucity of evidence by the
Second Respondent regarding the legality or otherwise of both the
Deeds of Donation and
Deeds of Registration. The Second Respondent's
claim to any right to these portions of the farm is accordingly
dismissed.
The
continued land invasions and illegal occupation
[19]
The Applicant contends that various portions of the farm have been
,
and are now being occupied by members of
the local community who have apparently
purchased
the land from either the First or Second Respondents
,
all who seemingly operate under the
assumption that they are entitled to deal with the land commercially
as they see it.
[20]
According to the Applicant the land occupation is also ongoing and
there
i
s no
indication that the relevant tribal authorities have discontinued
trading the land to interested purchasers. Portions 11 and
12 are
among the portions that are being unlawfully occupied
,
with one individual being in the process
of erecting a luxury hotel at Portion 12
.
A great many structures have been
erected on various portions of the farm
.
[21]
It appears that in all of these incidents
,
occupants have erected structures
,
presumably at great cost, acting on the
putative authority conferred by the First and Second Respondents. It
appears that
,
in
most cases
,
these
occupants believe that the land was lawfully purchased from the First
and Second Respondents
.
[22]
It should be noted by all and sundry that the
farm Voorspoed 458 K.S
.
,
and its various portions, comprise part
of the municipality
'
s
spatial development plan and accord
i
ngly
forms part of the planned municipal expansion in the foreseeable
future
.
It
is expected of the First and Second Respondents to be part and parcel
of such development plan. This they can do
i
f
they assist the Applicant in the latter's efforts to prevent unlawful
invasions and illegal occupation of the land.
Litigation
history amongst the Parties
[23]
During 2014 the First Respondent instituted application proceedings
in the High Court
,
Limpopo
under case number 1565/2014 in terms whereof they sought a review and
setting aside of a decision by the Registrar of Deeds
,
Pretoria, to register the farm Voorspoed
458 K.S
.
under
Title Deed T44612/2003
,
in
the name of the Municipality (Applicant). The substrate of this
application is the allegation by the First Respondent that the
land
is supposed to be the subject matter of a land rights inquiry in
terms of the
Communal Land Rights Act 11 of 2004
and that as such it
could not be alienated by the Applicant. This application was opposed
by the Applicant (Municipality)
.
The
matter was heard in this Court before Muller J and the application
was dismissed with costs on 4 May 2021
.
[24]
During
March 2017 the Applicant instituted interdictory proceedings against
unknown individuals who it claimed had been unlawfully
invading
portion 20, Unit H of the farm
.
A
provisional interdict was obtained
,
and
just days prior to the return date of the application
,
a
group of some 23 individuals sought leave to intervene in the
application stating that they were apparently living on portion
20
,
Unit
H. In each of the 23 intervening parties
'
affidavits
they made allegations that
the land is being occupied by them and that this is done in
accordance with permissions issued by the First Respondent. The
permissions
date back to 2015 and are annexed to the founding
affidavit of the Applicant herein
.
[5]
[25]
On the face of the aforesaid "Permission to Occupy an Allotment"
being annexures
"LLM 18
.
1-18
.
23
"
it is
indicated
that same are issued
"
Under
Bakgaga Ba Mphahele Tribal Authority
"
.
The issuing of the allotment is authorised by one MA Maja who
purports to be an induna or headman under the authority of the First
Respondent. It is on the basis of this
"
Permission
to Occupy an Allotment" authorised by MA Maja that the Applicant
wants to make case that the permissions were issued
under the
authority of the First Respondent.
[26]
In response to the aforesaid imputation the First Respondent has this
to say in its answering
affidavit:
"
33
.
5.
It is the 1
st
respondent
'
s
respectful submission that as
a
leader of
a
huge village like it is, it is still
able to maintain law and order
,
but I will submit
that
the
PTO
'
s
attached
to
the
application
ie
Annexures
"
LLM
18
.
1-18
.
23
"
were issued by the headman
,
Maja
,
who is the subject of the
Chief,
however
,
according
to our governance rules
,
a
headman
cannot
iss
ue
a
Permission to Occupy. A Permission to
Occupy is issued by the 1
st
respondent
as
the administration
of the village
.
33
.
6.
It is therefore untrue to say that 1
s
t
respondent is selling or issuing
PTO
'
s
regardless of whose land it is
."
It
is clear that the First Respondent denies that the Permissions to
Occupy were issued under its authority
.
In the face of this denial
,
this Court cannot without mo
r
e
make a finding that the permissions to occupy issued by the headman
were lawfully authorised by the First Respondent.
[27]
During 2018 the Second Respondent launched an application in this
Court under case number
3604/2018. In paragraph 9
.
2
of the founding affidavit under the said case number the Second
Respondent in that application testified as follows
:
"
9
.
2
I therefore have the powers and prerogative to appoint Headman and
spokespersons and to allocate the sights and/or stands in those
villages and farms under my authority and this people to assist m
e
in the
governance
thereof
"
The
deponent's reference to
"
villages
"
inter alia
refers
to the farm Uitvlucht No 117 K
.
S
.
which is part of the consolidated farm
Voorspoed 458 K
.
S.
[28]
The import of paragraph 9.2 of the aforesaid founding affidavit is:
28.1.
An acknowledgment that sites or stands are being allocated;
28.2.
That the Second respondent in this application arrogated
itself the
right to allocate sites or stands and
28.3.
That ownership is claimed in respect of six (6) farms
which form part
of the consolidated farm Voorspoed 458 K.S
.
The
above illustrates the reason for the on-going land problems of the
Applicant
vis-a-vis
the
Second Respondent.
The
purported land Claim
[29)
The First Respondent has persisted with the allegation that there
exists a land claim in respect of the land that is the subject
matter
of this application
.
However
the Appl
i
cant
has throughout maintained that no land claim is currently pending as
it pertains to the farm Voorspoed 458 K.S
.
[30]
On 13 February 2013 the Applicant (Municipality) published its
intention to market and
dispose of erven at Portion 20, Unit H of the
farm Voorspoed 458 K.S
.
The
First Respondent objected to this proposed alienation on the basis
that the land the Municipality intended to alienate was allegedly
part of the First Re
spondent’s
land
,
and
subject to a land claim instituted by another community by virtue of
the provisions of the Restitution of Land Rights Act
,
1994.
The said objection was in the form of a letter from the First
Respondent's attorneys
,
Tsebane
Molaba lncorporated
.
[6]
In
a land claim in the Land Claims Court under case number LCC107/2014
the said attorneys on behalf of the First Respondent sought
an
interdictory relief as it pertains to the disposal by the Applicant
of the erven at Portion 20
,
Unit
H. A notice of motion to this effect is annexed to the founding
affidavit.
[7]
[31]
It is common cause that Portion 20 of the farm Voorspoed 458 K.S
.
is lawfully owned and registered in the
name of the Applicant under Title Deed No T134717/2005 as outlined in
paragraph [2] hereinabove
.
Such
portion of the land could not be subjected to a land claim by the
First Respondent. The stance adopted by the First Respondent
i
n
this regard is erroneous.
[32]
A Council meeting was held on 2 August 2013 in order to address the
objection
.
The
First Respondent was represented at the meeting by its attorney
,
Mr Molaba
.
At the meeting Mr Molaba contended that
the land sought to be alienated
,
being
Unit H
,
Portion
20 of the farm
,
was
the subject of a land claim and that it could not be developed
.
Mr
Molaba later on indicated that the First Respondent was awaiting the
reopening of the land claim so as to re-lodge their cla
i
m
.
It
accordingly transpired that there was no land claim with respect to
the applicable portion of land.
[33]
Mr Molaba was equally unable to provide Council with a publication of
the land claim by
the Land Claims Commissioner as required by section
11 of the Restitution of Land Rights Act
,
1994
.
Mr
Molaba
,
during
this meet
i
ng
further conceded that the land claim was refused in 2004 by the Land
Claims Commissioner. This concession is evident from paragraph
4 of
the minutes of the meeting annexed to the founding affidavit.
[8]
In
fortification of the concession made hereabove
,
a
report by the Regional Land Claims Commiss
i
oner
,
Limpopo
Province
,
Mr
Mashile Mokono
,
dated
30 November 2004 shows clearly that whatever land claim lodged by the
First Respondent was d
i
smissed
.
The
report is anne
x
ed
to the Applicant
'
s
found
i
ng
affidavit.
[9]
This
report u
n
derpins
attorney Molaba
'
s
correct concession dur
i
ng
the meeting that the land claim has been refused
.
Consequently
,
the
First Responden
'
ts
objection to the alienat
i
on
of the land was not uphe
l
d
by the Council.
[34]
It should be noted that in none of the past
applications or the concu
r
rent
applications that are pending
,
has
ne
i
ther the
First or the Second Respondents ill
ustrated
the existence of a valid land claim in respect of the farm Voorspoed
458 K.S
.
Accordingly
,
there is still no pending land claim as
it pertains to the First and Second Respondents and the farm
Voorspoed 458 K
.
S
.
[35]
In the papers before this Court
,
the
Applicant states categorically that it is necessarily sensitive to
the needs of the local community as it pertains to land
,
but cannot sit idly by and allow the
unlawful conduct of the First and Second Respondents to enrich the
traditional authorities
unlawfully while at the same time
facilitating the jumping of the queue by selected individuals that
result in harm to law abiding
citizens awaiting land allocation in
accordance with the system employed to ensure land distribution in
the municipal area
.
I
share this sentiment with the Municipality
.
[36]
It is unfortunate that the conduct of the First
and Second Respondents in persistently
l
aying
unfounded claim to the land in Lebowakgomo stifle progress of
development in the Province of Limpopo and causes the Applicant
to
unwillingly spend state resources that could otherwise have been
utilised for upliftment of the community
.
It is high time that these respondents
desisted from their conduct.
The
relief sought
[37]
On the conspectus of evidence before this Court
,
the Applicant has proved that it is the
lawful and registered owner of the land constituted by Portions 1
,
8
,
9
,
11
,
12
and 14-22 of the farm Voorspoed 458 K
.
S.
The First Respondent conceded to this aspect. The Second Responden
,
t
though disputed the Applicant
’s
ownership of the land,
was
unable to bring any proof to the contrary
.
In the circumstances the First and
Second Respondents have no powers
,
either in common law or in statute
,
to deal with this land as their own
.
The Applicant accordingly has a clear
r
i
ght to
the relief sought.
[38]
Considering the history of the dispute over this land
,
the Applicant has no reason to think
that the conduct of the First and Second Respondents will abate to
any degree
.
The
Applicant
i
s
thus justified to hold a reasonable apprehension of harm
.
The
Applicant has endeavored to resolve the underlying disputes between
it and these Respondents
i
n
several meetings but to no avail. The Fi
r
st
and Second Respondents have now effectively refused to further
partake in any meaningful attempts to allay the impasse and dispute
between the Applicant and them
.
In
the result
,
the
Applicant has no op
t
ion
but to launch this application in order to get clar
i
ty
on the issues referred to in the notice of motion.
[39]
For more than a century our law has authoritatively required an
applicant seeking a final
interdict to
:
1.
demonstrate a
"
clear
right
";
2.
show an injury in the form of irreparable harm actually committed or
reasonably apprehended
;
and
3.
the absence of an alternative remedy.
See
Setlogelo
v
Setlogelo
1914
AD
221
at 227.
The
Applicant proved all the requirements of an
interdict
relating to the Second Respondent. I am
not satisfied with the evidence before me that all the requirements
of an interdict have
been proved against the First Respondent.
[40]
There is no sufficient evidence before me to show that the First
Respondent has allocated
or attempted to allocate the land to
its
subjects or other individuals within the
portions of the farm owned by the Applicant. The evidence that a
certain induna/headman
Maja purported to allocate land and issued
permissions to occupy does not take this issue any further
.
The First Respondent has explained that
the said allocation was done without its authority
.
In the circumstances of this case one
cannot assume that the First Respondent would proceed to make
allocations of land now or
in
future.
[41]
It is
encouraging
to note that the First Respondent has conceded and acknowledged the
Applicant's ownership of the land in question
.
One can reasonably assume that the First
Respondent will continue to respect and recognise the Applicant's
rights over the relevant
portions of the farm Voorspoed 458 K.S
.
The fact that no proper case for an
interdict has been made against the First Respondent does not
necessarily give it the latitude
to interfere with the Applicant's
rights on the portions of the farm. In the event of any unlawful
conduct and interference by
the First Respondent the Applicant will
obviously deal with such matter on a case by case basis
.
[42]
Counsel for the First Respondent submitted that in the event the
Applicant has a title
,
then
it cannot seek a declarator but rather an interdict prohibiting
anyone who does not have a title over the farms to interfere
with its
right of ownership
.
Counsel
then argued that this application therefore does not meet the
requirements of a declaratory order. For reasons that appear
hereunder this argument has no merit.
[43]
In terms of the provisions of section 21 (1)(c)
of the Superior Courts Act
,
1O
of 2013
,
the
High Court may grant a declaratory order without any consequential
relief
.
The
subsection provides as follows
:
"
21
(1) A Division has jurisdiction over
all persons resident or
being in
,
and
in
relation
to
all
causes
arising
and
all
offences
triable
within
,
its area of jurisdiction and all
other matters of which it may according to law take
cognisance,
and has the power-
a)
b)
c)
in its discretion
,
and
at
the instance of any interested
person
,
to
enquire into and determine any
existing
,
future or
contingent
right or obligation
,
notwithstanding
that
such person cannot claim any relief
consequential
upon the determination
.
(2)
.. .
(3)
...
"
[44]
Under common law, the High Court did not have the jurisdiction to
grant declaratory relief
.
[10]
Section
19 (1
)(a)(iii)
of
the now repealed Supreme Court Act 59 of 1959 made provision for the
granting of
a
declaratory
relief
.
Currently
it is governed bys 21 of the Superior Courts Act,
10
of
2013.
The
requirements
in
respect
of the granting of a declaratory order are two-fold.
[11]
a)
The court must
be
satisfied
that the applicant has an interest in an existing
,
future or contingent right or
obligation
;
and
b)
once a court is so
satisfied
,
it must be considered whether or not the
order should be granted.
[45]
In
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[12]
the
Supreme
Court
of Appeal said the following with regard to the powers of the High
Court to grant a declaratory order
:
"[16]
Although the existence of
a
dispute
between the parties
is
not
a
prerequisite
for the exercise of the power conferred upon the High Court
by the subsection
,
at least there must be interested
parties on whom the
declaratory
order would be binding
.
The
applicant in
a case
such
as
the
present must
satisfy
the
Court that he/she
is a
person
interested in an e
x
isting
,
future or contingent right or
obligation and nothing more
is
required
".
[46]
In
Durban
City Council v Association of Building Societies
[13]
Watermeyer
JA
,
with
reference to a section worded in identical terms
,
sa
i
d
at 32
:
"
The
question whether or not an order
should be made under this section
has to be examined in two stages.
First the Court must be satisfied that the applicant is
a
person interested in an
"
existing,
future or contingent right
or
obligation
"
and
then
if
satisfied on
that
point the
Court must
decide
whether the case is
a
proper one for the exercise of the
discretion
conferred
on
it
".
[47]
As I understand the principles set out above
,
once the applicant has satisfied the
Court that he/she is interested in an
"
existing
,
future or contingent right or
obligation
",
the
Court is obliged by the subsection to exercise its discretion
.
This does not, however
,
mean that the Court is bound to grant a
declarator
,
but
that it must consider and decide whether it should refuse or grant
the order
,
following
an examination of all relevant factors.
[48]
Upon considering all relevant factors in the present case, I am of
the view that the Applicant
in this matter is clearly
interested
in the determination of the right of
ownership of the relevant portions of the farm Voorspoed 458 K
.
S
.
The
First and Second Respondents are the interested parties on whom the
declaratory order would be binding
.
Accordingly
,
this Court
is
enjoined to grant a declaratory order in
favour of the Applicant relating to its ownership of the relevant
portions of the
farm
Voorspoed
458 K.S
.
Conclusion
and Order
[49]
On a conspectus of all the evidence given by the Applicant in both
the founding and the
replying affidavits I come to the conclusion
that the Applicant has made out a case and is entitled to the relief
as outlined hereunder
.
[50]
In the result I grant the following order
:
50.1.
It is declared that the Applicant is the owner of the various
constituent portions
,
namely
Port
i
ons 1
,
8
,
9
,
11
,
12
,
14 to 22 of the farm known as Voorspoed
458 K.S.
50.2.
It is declared that neither the First and Second Respondents have any
rights or are possessed of the power
to purchase
,
to dispose of or
,
to in any manner whatsoever
,
transact
,
or approve any land use on the various
portions of the farm known as Voorspoed 458 K.S
.
without the express written approval of
the applicant herein
,
including
but not limited to
:
50.2.1.
any developmental rights
;
50.2.2.
the disposal of undivided erven on the
constituent portion of the farm
;
50.2.3.
the issuing of
"
Permissions
to Occupy
"
any
undivided erven on the constituent portions of the farm;
50.2.4.
providing assistance of any nature to and/or facilitating the
occupation and any development
of undivided erven on the constituent
portions by any individual.
50.3.
The Second Respondent
is
interdicted
and
restrained
from
purchasing
,
disposing
of or
,
in
any manner whatsoever
,
transacting
with respect to the various constituent portions of the farm known as
Voorspoed 458 K
.
S
.
without the express written approval of
the Applicant herein
,
including
but not limited to the conduct set out
in
paragraphs 50
.
2.1
- 50
.
2.4 above.
50.4.
The Second Respondent is ordered to pay costs of this application
,
such costs to include the costs of two
Counsel.
50.5.
There shall be no order as to costs in respect of the First
Respondent.
EM
MAKGOBA
JUDGE
PRESIDE T OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
29
July 2021
J
udgment
delivered on
5
August 2021
For
the Applicant
Adv
LGF Putter SC
Adv
SG Gouws
Instructed
by
Verveen
Attorneys
For
the First Respondent
PC
Mogale
PC
Mogale Attorneys
For
the Second Respondent
No
appearance
Attorneys
of record for the
Director
Makhafola Inc
Second
Respondent
[1]
See
Annex
u
res
"L
L
M
3" and
"LL
M4
"
to
t
h
e
F
o
u
nd
in
g
Affi davi
t
a
t
pages
65
-
70.
[2]
A
n
nex
ur
e
"
LL
M
S" a
t
pages
71
-
8
0.
[3]
Annexure
"LLM8"
at
pages
136-152.
[4]
See
An
n
exu
r
es
"L
LM
9.
1
to
LLM
9.14"
to
th
e
Founding
Affi
dav
i
t
at
p
ages
153-208.
[5]
An
ne
xures
"
LLM
18
.1-18.23"
at
pages
254
to
279.
[6]
See
A
nn
ex
ur
e
"
LL
M
2
1
"
to
th
e
Founding
Affidavit
a
t
p
age
283.
[7]
An
n
ex
ur
e
"
LLM1
6"
a
t
p
a
ge
2
4
6.
[8]
See
A
n
nex
ur
e
"
L
LM
22" a
t
page
285.
[9]
Annexure
"
LLM
23"
at pages
28
9
-29
1.
[10]
Geldenhuys
and
N
eet
hling
v Beuthin
1918
AD
426.
[11]
Mahlangu
and Anoth
er
v
Minister
of Defence and Military
Veterans
and
Another
(5
457
3/18)
(2019]
ZAGPPHC
418
(5
September 2019).
[12]
2
0
05
(6)
SA
2
0
5
(SCA).
[13]
1
94
2
A
D
2
7.