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2021
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[2021] ZANCHC 23
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Pniel Communal Property Association v Pniel Youth Agricultural Co-operative and Others (2585/2019) [2021] ZANCHC 23 (23 July 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO.: 2585/2019
Date heard: 11-06-2021
Date delivered:
23-07-2021
In
the matter between:
Pniel Communal
Property Association
Applicant
and
The Pniel Youth
Agricultural Co-operative
1
st
Respondent
Isaac Gillian April
2
nd
Respondent
The MEC: Department of
Agriculture,
3
rd
Respondent
Land Reform &
Rural Development:
Northern
Cape Province
CORAM:
WILLIAMS J
JUDGMENT
WILLIAMS
J:
1.
As far back as 28 November 2019 the
applicant, the Pniel Communal Property Association (the CPA) brought
an urgent application in
which a
rule
nisi
to serve as interim relief
pending the finalization of the application, was issued in the
following terms:
“
2.1
That the 1
st
RESPONDENT and the members of the 1
st
RESPONDENT are interdicted from utilizing for whatever purpose, the 2
(two) pivots belonging to the APPLICANT which pivots are
currently
set up at the irrigation areas marked “
B”
and “
C”
on the aerial photograph attached hereto as
Annexure
“X”’
2.2
That the 1
st
RESPONDENT and the members of the 1
st
RESPONDENT are interdicted from causing in any way, any other person
from utilizing, for whatever purpose, the 2 (two) pivots belonging
the APPLICANT, without the prior obtained written authorization of
the APPLICANT;
2.3
That the 1
st
RESPONDENT and its members are interdicted from working any land on
the property known as Pniel Farm 281, district of Barkly-West,
Northern Cape Province other that the irrigation area currently
underneath the 1 (one) pivot belonging to the 1
st
RESPONDENT and marked as “
A”
on the attached
Annexure
“
X”
without the prior obtained written authorization of the APPLICANT;
2.4
That the 1
st
RESPONDENT and its members are interdicted from causing, in any way,
any other person to work the afore-said land without the prior
obtained written authorization of the APPLICANT;”
2.
The 1
st
and 2
nd
respondents are respectively the Pniel Youth Agricultural
Co-operative and its chairperson Mr Isaac Gillian April. The
3
rd
respondent is the MEC: Department of Agriculture, Land Reform and
Rural Development: Northern Cape Province. The 3
rd
respondent is cited only in so far as she may have an interest in the
matter.
3.
The return day of the
rule
nisi
was extended on numerous
occasions,
inter alia
as
a result of the Covid 19 lockdown and an attempt at negotiating a
settlement between the parties. The settlement negotiations
having been unsuccessful, the application was argued before me on 11
June 2021 after which I extended the
rule
nisi
in order to prepare a judgment in
this matter.
4.
The common cause background to this
application can be summarized as follows:
4.1
The property described in paragraph 2.3 of the order above was
awarded to the CPA and its
members by the Public Shared Services
Commission: Northern Cape, after a successful land claim during
2006. The property
is however still registered in the name of
the 3
rd
respondent, with the CPA being the
bona
fide
possessor and/or occupier of the
property.
4.2
During 2015 the 1
st
respondent approached the CPA with a request to install a pivot it
had received as a donation from the 3
rd
respondent on the property in order to grow maize and wheat for its
own account. The CPA acceded to this request.
4.3
During 2017 the CPA bought its own two pivots which it also installed
on the property.
4.4
On 9 November 2019 the chairperson of the CPA and deponent to its
affidavit, Mr Cornelius
Franklin Solomons drove past the property and
noticed that the irrigation areas underneath the two pivots belonging
to the CPA
were being burnt by certain members of the 1
st
respondent, ostensibly for purposes of preparing for the
establishment of new crops on those particular areas.
4.5
This application was brought in order to prevent the 1
st
respondent and its members from establishing new crops under the
pivots belonging to the CPA or to work any other area of the
property, except for the irrigation area underneath the 1
st
respondent’s own pivot, without prior permission being obtained
from the CPA.
5.
The 1
st
and 2
nd
respondents oppose the application on the basis that:
5.1
The 1
st
respondent and its members are members of the CPA and are entitled to
utilize the property (the CPA denies this allegation);
5.2
The CPA does not conduct agricultural activities on the property, but
rather mining and
gaming operations;
5.3
The CPA bought two pivots during 2017 at the request of the 1
st
respondent and that in terms of an agreement between the parties and
as compensation for the purchase price of the pivots, the
CPA would
be entitled to 20% of the 1
st
respondent’s farming activities. In this regard the 1
st
respondent has paid over to the CPA 20% of its proceeds on two
occasions;
5.4
The 1
st
respondent has since 2017 been using the land under the two pivots
for agricultural purposes, which included the burning of the
land to
establish new crops and that the deponent to the CPA’s founding
affidavit, Mr Solomons, was aware of this process
and knew that it
would happen; and
5.5
That Mr Solomons is not authorized to bring the application of behalf
of the CPA and that
the resolution attached is not a resolution from
the CPA’s executive committee which has been disbanded since
2016/2017.
6.
The disputes mentioned above, argues Ms
Tyuthuza, who appears for the 1
st
and 2
nd
respondent, are material disputes of fact which can not be determined
on the papers. She contends therefore that the application
be
dismissed with costs, alternatively that the issues be referred for
oral evidence.
7.
It is trite that the general rule is that
where there is a dispute of fact, a final order will only be granted
on notice of motion
if the facts as stated by the respondent together
with the facts alleged by the applicant, that are admitted by the
respondent,
justify such an order (see
Plascon
– Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634).
8.
In determining whether the disputes raised
by the respondents are real, genuine or
bona
fide
disputes which cannot be
determined on the papers, I now turn to analysing the disputes so
raised.
9.
The respondents allege that they are
members of the CPA because they are beneficiaries in terms of the
Extension of Security of
Tenure Act 62 of 1997 (ESTA) and claimants
in terms of the
Restitution of Land Rights Act 22 of 1994
. The CPA
denies that they are members. The respondents do not explain
how, by virtue of their being ESTA beneficiaries, which
provides for
protection of tenure for certain occupiers of land, they would also
be members of the CPA, which quite distinct from
ESTA beneficiaries
and in terms of the
Communal Property Associations Act 28 of 1996
comprises of a community entitled to
inter
alia
restitution of land rights, as has
been awarded the CPA, or entitled to receiving property or other
assistance from the State,
or approved by the Minister to acquire
land or rights as set out in s2 of the CPA Act.
10.
The respondents’ allegation that they
are claimants in terms of Act 22 of 1994 takes the matter no
further. In terms
of this Act a “
claimant”
is defined in s1 thereof as any person who has lodged a claim.
“
Claim”
means
(a) any claim for restitution of a right in land lodged with the
Commission in terms of the Act; or (b) any application lodged
with
the Registrar of the Court in terms of Chapter III A for the purposes
of claiming restitution of a right in land. The
respondents do
not even state that they are or were claimants as a part of the
community represented by the CPA.
11.
Significantly the CPA an its members have
been successful with their land claim during 2006 already. I
need not detain myself
any further with the allegations relating to
the respondents’ membership of the CPA however, since on their
own version they
had to obtain permission from the CPA to install
their pivot on the property and to work the irrigated land thereunder
against
payment to the CPA, which is contrary to their allegation
that as members of the CPA they are entitled to utilize the property.
12.
I now turn to the respondents’
allegations that the CPA does not conduct agricultural activities on
the property. I
fail to see how this allegation can give rise
to a dispute of fact as to who has the right to work the land under
the two pivots
bought by the CPA. In any event the CPA averred
that it intended to establish crops under its two pivots and to that
end
had started the process of selling off some of its game in order
to finance the project. This averment has not been refuted
by
the respondent.
13.
The disputes of fact referred to in
paragraphs 5.3 and 5.4 herein can be dealt with simultaneously.
It is trite that a party
who alleges an agreement has to prove the
terms of the agreement. The respondents have failed to do so
except in the cryptic
way as described in paragraph 5.3 hereof.
The CPA on the other hand has attached to its replying affidavit the
minutes of
a meeting held on 10 January 2018 between the CPA and the
1
st
respondent in which the agreement relating to the pivots was
reached. The relevant portion of the minutes reads as follows:
“
1.
Pivots
The Pniel
Agri-Cultural Youth Co-opt has one pivot bought by the Dept:
Agriculture, Land Reform and Rural Development-NC.
Steff Pniel bought 2
pivots for the Pniel C.P.A
The
P.A.Y Co-opt was given permission to operate their one pivot, on the
Pniel Estate.
2.
MARNUS DE
BEER
It
was further resolved that Mr. Marnus De Beer neighboring farmer will
assist the Pniel C.P.A and the P.A.Y Co-opt in their crop
farming
project.
3.
SALARIES
It was further
resolved that the P.A.Y. Co-op must pay 20% of their netto income
from the crops to the Pniel C.P.A.
It was also resolved
that the Pniel C.P.A pays the P.A.Y. Co-op, their salaries for
maintenance and work to be done on the pivots
of the Pniel C.P.A.
The Pniel C.P.A. would pay R55000.00 pm to the P.A.Y. Co-op for the
salaries, as follows. . . . ”
14.
What is clear from the extract of the
minutes of the meeting quoted above is that; (i) the 1
st
respondent was given permission to operate its one pivot on the
property; (ii) the 1
st
respondent must pay 20% of its income from the crops to the CPA; and
(iii) the CPA would pay certain members of the 1
st
respondent salaries for maintenance and work to be done on the pivots
of the CPA. Nowhere in these minutes does it state
that the 1
st
respondent is given permission to plant its crops under the pivots of
the CPA, or that 20% of the proceeds of the 1
st
respondent’s crops planted under the pivots of the CPA would go
to the CPA as payment for the two pivots bought by the CPA.
15.
The minutes of the meeting of 10 January
2018 featured prominantly in a prior application brought by the CPA
against
inter alia
the 1
st
an 2
nd
respondents and which served before Sieberhagen AJ on 16 August 2019
under case no 510/19 and as such the respondent would have
been aware
of the contents of the minutes. To make allegations regarding
an agreement which is not supported by the evidence
is in my view
inexcusable.
16.
I now turn to the issue of Mr Solomon’s
authority to bring the application on behalf of the CPA. The
respondents have
alleged that the CPA’s executive committee has
been disbanded since about 2016 and that a new executive committee
has not
been elected by the members of the CPA. The CPA denies
this allegation. The respondents proceed to allege that since
the CPA does not have an executive committee, a resolution to
authorize Mr Solomons to bring the application could not have been
passed by the executive committee. At this stage it is
necessary to mention that the CPA’s constitution, which is
attached to the replying affidavit and of which a copy was in the
possession of the respondents prior to the filing of their answering
affidavit, does not mention that a resolution by the executive
committee is required before legal proceedings may be instituted.
Mr Solomons also does not state in the founding affidavit that he was
so authorized by a resolution of the executive committee.
The
CPA refers in its founding affidavit to a resolution passed at a
meeting of the CPA held on 11 November 2019 and attaches a
letter
written to the respondents to inform them of the resolution so taken
to authorize Mr Solomons to proceed with any remedial
action at his
disposal to
inter alia
protect
the property of the CPA. This letter is signed by Mr Solomons
in his capacity as chairperson of the CPA and its executive
committee
and a Mr R A Krotz as secretary of the CPA and its executive
committee. Mr Krotz has deposed to a confirmatory
affidavit in
this regard.
17.
In any event, when it comes to issues of
authority to institute and prosecute proceedings on behalf of a pary,
it is the attorney
who must be authorized to institute such
proceedings. Mr Solomons as a deponent to the CPA’s
affidavits does not need
such authorisation. The respondents
have not challenged the authority of the CPA’s attorneys to
institute the application
in terms of Rule 7 and as such it must be
accepted that the institution of the application was authorized.
See in this regard
Ganes and Another v
Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at 624F to 625 A.
18.
In my view the disputes of fact raised by
the respondents are not genuine and
bona
fide
and can be rejected merely on the
papers (See
Plascon-Evans
at
635C).
19.
In my view the CPA as lawful possessor of
the property has succeeded in showing its entitlement to the relief
sought.
20.
The only remaing issue to be determined is
that of the costs of the application. Ms Tyuthuza for the
respondents and Mr Olivier
for the CPA have agreed that the costs of
the postponements of the application should be costs in the
application. Ms Tyuthuza
has argued however that should the CPA
be successful in the application that costs of the application be
borne only by the 1
st
respondent and not the 2
nd
respondent, whose involvement in this matter is purely as chairperson
of the 1
st
respondent. I do not agree with this contention. Mr
Solomons has stated in the founding affidavit that he had identified
the 2
nd
respondent as the person responsible for burning the land under the
CPA’s pivots. This allegation was not denied by
the 2
nd
respondent. I see no reason why the 2
nd
respondent should be absolved from bearing the costs of this
application.
In
the circumstances the following order is made.
a)
The
rule
nisi
issued on 28 November 2019
is confirmed and a final order is granted.
b)
The 1
st
and 2
nd
respondents are to pay the costs of the application jointly and
severally, the one paying the other to be absolved.
CC WILLIAMS
JUDGE
For Applicant: Adv. A D
Olivier
Van
de Wall Inc
For Respondent: Adv
Tyuthuza
Matlejoane
Attorneys