About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2021
>>
[2021] ZALMPPHC 52
|
|
Ngwasheng v Kgomo and Others (4419/2019) [2021] ZALMPPHC 52 (24 August 2021)
LIMPOPO
DIVISION OF THE HIGH COURT;
POLOKWANE
CASE
NO: 4419/2019
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
MATSOBANE
NEHEMIAH NGWASHENG:
APPLICANT
And
DANIEL
KGOMO
FIRST
RESPONDENT
MOKOPANE
TRADITIONAL COUNCIL:
SECOND
RESPONDENT
LIMPOPO
PROVINCIAL GOVERNMENT:
THIRD
RESPONDENT
DEPARTMENT
OF CO-OPERATIVE,
GOVERNANCE,
HUMAN SETTLEMENT
AND
TRADITIONAL AFFAIRS
MOGALAKWENA
LOCAL MUNICIPALITY:
FOURTH
RESPONDENT
SURVAYER
GENERAL, LIMPOPO
FIFTH
RESPONDENT
EVELYN
MABATHO MOHANGO:
SIXTH
RESPONDENT
JUDGMENT
SEMENYA
DJP:
[1]
The applicant in this matter launched an application in which the
following order is sought:
i. Declaring that the
piece of land where the first respondent operates a business known as
Dan’s Scrapyard under PTO in stand
number 1866, Ga-Mitchel,
falls under the boundaries of stand number 8977, Ga- Mitchel,
Sekgakgapeng as per Surveyor General N0.
8977/1999;
ii. Declaring the
Permission to Occupy (PTO) dated 09 July 2012 under stand number 1865
and issued to or in favour of the first
respondent by the second
respondent fatally flawed, null and void ab initio;
iii. Declaring that the
allocation of stand No. 1865, at Ga-Mitchel, Sekgakgapeng by the
second respondent to the first respondent
is unlawful and ultra
vires;
iv. Costs of the suit.
[2]
The applicant served the first respondent with the notice of motion
on the
23 July 2019.
The first respondent filed notice to
oppose the application on the
5 August 2018
. In terms of the
Rules of this Court, the first respondent was required to file the
answering affidavit by the
27 August 2019
. The application was
set down for hearing on the
10 October 2019.
On that date the
matter was removed from the roll and the first respondent was ordered
to file the answering affidavit by the
28 October 2019.
The
matter was again enrolled for the
4 June 2020
and served
before Kganyago J who postponed the application and ordered the first
and second respondents to file their opposing
papers within a
specified period.
[3]
In the application for condonation for the late filing of the
answering affidavit, the first respondent explains that his erstwhile
attorney who represented him in a number of cases instituted against
him by the applicant in Mahwelereng Magistrate Court2, and
who
therefore had a better understanding of the issues between them, died
in 2015. He thereafter sought legal assistance from the
office of
Makgoba Kgomo Makgaleng Incorporated. The matter was allocated to a
Mr Ntene who filed notice of intention to oppose
the matter but left
the practice of Makgoba Kgomo Makgaleng Inc before the answering
affidavit was filed. Mr Makgaleng had to take
over the matter from Mr
Ntene. Having studied the file, Mr Makgaleng informed the first
respondent that he is of the opinion that
the longstanding issues
between the parties can be resolved by engaging the services of a
qualified land surveyor who will define
the boundaries between the
two properties which forms part of the subject matter of the
litigation between the parties. The lawyers
of the applicant failed
to respond to the correspondence addressed to them by Mr Makgaleng
with a view of securing the services
of a land surveyor. It is
further alleged that proper consultation between the first respondent
and the lawyers was delayed by
the onset of Covid 19 and the
resultant hard lockdown.
[4]
The applicant argued that the first respondent failed to account for
his failure to file the answering affidavit between the
27
August
and the
10
October 2019.
The applicant contended that the first respondent failed to have
regard to the sentiments made in
Uitenhage
Transitional Local Council v South African Revenue Services
[1]
in which it was stated that “
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the court to understand clearly the reasons
and to assess the responsibility.”
[5]
I am of the view that it would be unreasonable for this court to
divide the explanation furnished by the first respondent into
compartments and to single out specific periods during which failed
to file the answering affidavit. It is indeed so that the current
lawyer had to approach the then Law Society of the Northern Province
and to request the files related to this matter so that he
can
appraise himself with the history of the longstanding litigation
between the parties. Mr Makagleng further sought corporation
with the
attorneys of the applicant with a view of bringing finality to this
series of litigation. I find that the first respondent
accounted for
the entire period during which he failed to file his answering
affidavit. Condonation for the late filing of the
answering affidavit
is therefore granted.
[6]
The first respondent raised the following points in
limine
:
a) That the issues
between the parties had already been adjudicated upon by the Mokopane
Traditional Council;
b) that the applicant is
not approaching the court with clean hands;
c) that there is a
dispute of fact;
d) non-joinder of
Matsobane Ngwasheng Family Trust (the Trust) and the Department of
Rural Development and Land Reform (the Department).
[7]
The applicant has correctly argued that the point
in
limine
referred to in b) above cannot be regarded as a point of law. This
point raises factual as opposed to legal issues. It is dismissed
on
that basis. In
Golden
Dividend and Another v Absa Bank
[2]
it was held that
:
“
The
test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject matter of the
litigation which may prejudice the party that has not been joined.
In
Gordon
v Department of Health, Kwazulu-Natal
[2008]
ZASCA 99
;
2008
(6) SA 522
(SCA)
it
was held that if an order or judgment cannot be sustained without
necessarily prejudicing the interest of third parties that
had not
been joined, then those third parties have a legal interest in the
matter and must be joined. That is the position here.
If the
creditors are not joined their position would be prejudicially
affected: A business rescue plan that they had voted for
would be set
aside; money that they had anticipated they would receive for the
following ten years to extinguish debts owing to
them, would not be
paid; the money that they had received, for a period of thirty
months, would have to be repaid; and according
to the adopted
business rescue plan the benefit that concurrent creditors would have
received namely a proposed dividend of 100
per cent of the debts
owing to them, might be slashed to a 5,5 per cent dividend if the
company is liquidated.’
[8]
The applicant argued that the relief sought, if granted, will not in
any way prejudice the interests of the Department and those
of the
Trust. It is indeed so that the Trust and the Department’s
interests will not be adversely affected should this court
declare
Permission to Occupy (the PTO) stand number 1866 held by the first
respondent null and void. On the contrary, the Trust
will benefit
from the declaration sought by the applicant. It is my view that the
rights of the Department as the trustee of the
land on which stand
number 1866 is situated will not be affected by the granting of the
orders sought. The Department will remain
the trustee irrespective of
who the holder of the PTO is. This point
in limine
also stands
to be dismissed.
[9]
On the issue of the resolution of the dispute between the parties by
the Mokopane Tribal Council, the applicant contended that
the Council
lacks the necessary jurisdiction to decide on the prayers sought in
this matter. I agree with this submission. The
applicant seeks, in
the main, an order that the stand from which the first respondent is
operating his business of a scrapyard
falls within the stand that was
allocated to him and that the PTO of the first respondent held over
the same stand be declared
invalid. The Tribal Council has no
authority to grant the order of this nature. The High Court on the
other hand derives its powers
from
section 21
(1) (c) of the
Superior
Courts Act 10 of 2013
. Mokopane Traditional Council was joined as
second respondent and filed their notice to oppose. Its erstwhile
attorneys withdrew
as attorneys of record. On the date of the hearing
of the matter, representatives of the second respondent appeared in
person and
indicated that they are not opposing the order sought by
the applicant. The first respondent also failed to annex the alleged
Tribal
Council order to the answering affidavit. There is no reason
why this court can uphold the point
in limine
. Like the other
point
in limine
, it is dismissed.
[10]
On the facts, the applicant avers that he applied for Permission to
Occupy stand number 1866 for business purposes in the rural
area of
Ga-Mitchel, Moshate, Sekgakgapeng from the second respondent.
Mokopane Traditional Council approved the application on
the
29
August 2014
. On the
18 August 2005
Limpopo Provincial
Government granted its approval under Proclamation R188 of 1969. The
applicant alleges that he established a
business of a General Dealer
and a fuel filling station on the stand. The applicant further
alleges that he entered into an oral
lease agreement with regard to a
portion of the stand with the first respondent in
January 2011
.
He avers that the lease was approved by the second respondent. The
applicant stated that on the
9 July 2012
, the second
respondent unlawfully, and without consulting with him, issued a PTO
to the first respondent for the very same portion
that he had let to
the first respondent. It is this PTO that the applicant is seeking an
order that it be declared invalid.
[11]
The first respondent admitted that he is running a business of a
scrapyard from stand number 1866 Ga-Mitchel, Sekgakgapeng
which was
allocated to him by the second respondent. He avers that the official
who pointed the stand informed him that the number
of the stand is
1865 and not 1866. It is of note that the headwoman of the
second respondent deposed to an affidavit in which
she denies that
the stand was lawfully allocated to the second respondent. The first
respondent contended that the applicant was
allocated only 0,2
hectors and has unlawfully built the General Dealer on stand number
1858 instead of on number 1866. The allegations
that the applicant is
occupying more land than the one he was allocated by the second
respondent cannot serve as a defence. I agree
with the applicant that
the first and second respondent are at liberty to approach the
correct forum if they are not satisfied
with the applicant’s
occupation of the stand rather than to resort to self-help.
[12]
The first respondent further denies that he has entered into a lease
agreement with the applicant. He argues that it appears
clearly from
the PTO attached to the applicant’s affidavit that the stand
was allocated to applicant on condition that it
shall not be sublet
or ceded to another person. The allegations that the applicant and
the first respondent entered into a lease
agreement are confirmed by
the headwoman of the second respondent whose approval was, according
to the version of the applicant,
sought before the agreement was
entered into. The first respondent is relying on clause 3 of the PTO
granted by Limpopo Government
which prohibits the sub-letting of the
stand. This court is in any event not called upon to determine the
validity of the lease
agreement. The applicant was simply explaining
the reason why the first respondent came to be on the stand.
[13]
It appears clearly from Annexure MN6 to the founding affidavit that
the first respondent was allocated stand number 1865. He
has however
occupied stand number 1866, which is the site that was already
allocated to the applicant as far back as 2005. It is
for this reason
that the applicant is alleging that the second respondent unlawfully
and fraudulently allocated the site to the
first respondent. The
applicant contended that the site referred to in the PTO of the first
respondent, namely, 1865 is already
allocated to one Evelyn Mabatho
Mohango who is the sixth respondent in this application. She
confirmed that she ‘inherited’
stand number 1865 from her
father. The first respondent attached an affidavit deposed to by a
land surveyor who stated that the
scrapyard business is wholly within
stand number 1866. The first respondent’s contention that the
stand was erroneously duplicated
is without merit. More so in that
stand number 1865 is in existence and occupied.
[13]
Section 21
(1) (c) of the
Superior Courts Act
[3
]
confers the High Court with the power 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. The court will consider whether
or not to grant
a declaratory order only if it is satisfied that the
applicant has an interest in an existing, future or contingent right
or obligation-
see
Cordiant Trading CC v Daimler Chrysler Financial Services (Pty)
Ltd
[4]
.
The applicant is an interested party in that he has an existing right
in stand number 1866 Ga-Mitchel, Sekgakgapeng, Mokopane.
The stand
has been allocated to him by Mokopane Tribal Council and Limpopo
Government. Secondly, there is a longstanding dispute
between the
applicant and the first respondent with regard to the first
respondent’s right to occupy the said stand. The
first
respondent avers that his lawyer informed him that the issue can be
best dealt with by the engagement of a qualified land
surveyor. That
has already been done. The applicant has attached the report of the
Surveyor General 8977/1999 to the founding affidavit.
Furthermore,
the first respondent admitted that he is in occupation of stand
number 1866 on the basis of an impugned PTO. The PTO
of the first
respondent was issued long after that of the applicant. It is for
this reason that I agree with the applicant that
the order will have
practical effect in that the nullification of the second PTO will
bring certainty regarding the issues between
the applicant, the first
respondent and the second respondent. I am satisfied that the
applicant is entitled to the order sought
in the notice of motion.
{16]
The general rule is that costs are in the discretion of the court and
that generally, the successful party is entitled thereto.
I have no
reason to deviate from the general rule. The applicant as the winning
party is entitled to costs.
[14]
In the results I grant the following order:
i. It is declared
that the piece of land from which the first respondent operates a
business known as Dan’s Scrapyard under
PTO in stand number
1865 falls within the boundaries of stand number 1866, Ga-Mitchel,
Sekgakgapeng as per Surveyor General No:
8977/1999;
ii. It is declared that
PTO dated the
9 July 2012
under Stand number 1865 and issued
to or in favour of the first respondent by the second respondent is
fatally flawed, and is of
no force and effect;
iii. It is declared that
the allocation of stand number 1865, Ga-Mitchel, Sekgakgapeng by the
second respondent to the first respondent
is unlawful; and
iv. The first respondent
is ordered to pay the costs of the application.
M
V SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION;
POLOKWANE
APPEARANCE:
For
the applicant:
K
MOKWENA
Instructed
by:
MATOTOLA
TSELENG ATTORNEYS
For
the first respondent:
ADVOCATE
TD SIBIYA
Instructed
by:
MAKGOBA
KGOMO MAKGALENG ATTORNEYS.
Date
of hearing:
27
May 2021
Delivered
on:
24
August 2021
[1]
2004
(1) SA 292
(SCA) at par 6.
[2]
(569/2015)
[2016] ZASCA 78
(30May 2016) at [10]
[3]
10
of 2013
[4]
1
All SA 103
(SCA)