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[2020] ZALMPPHC 74
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Letsoalo and Others v Tepanyekga and Others (19/2018; HCA14/2019) [2020] ZALMPPHC 74 (28 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO/
YES
(3)
REVISED.
COURT
A QUO
CASE
NO: 19/2018
APPEAL
CASE NO: HCA14/2019
In
the matter between:
HERMAN
LETSOALO & 2 OTHERS
APPELLANT
And
MASHAO
JOOHN TEPANYEKGA & 11 OTHERS
RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
This is an appeal from the Magistrate's
Court Sekgosese against the judgment and order of Magistrate
Raborefi Nachabeng delivered
on 21 August 2018.
[2]
The Appellants in this matter were the
Respondents in the Court
a quo
and
the Respondent herein was the Applicant. The parties herein are
referred to as in the
court a quo
in
order to maintain harmony with the record before this court.
Facts:
[3]
The Applicant is the registered owner of
Portion 6 of the Farm Kalkfontein 812, Registration Division L.S,
Limpopo Province. The
beneficiaries of the Trust as registered with
the Master of the High Court North Gauteng Division is listed as the
Matoks Community
Beneficiaries which list of beneficiaries was
accepted by the Master of the High Court on 23 January 2017 and the
Dikgale Community
of the Madibeng-Letupi Community Trust was
registered with the Master of the High Court North Gauteng Division
on the 3
rd
of July 2017. The Respondents are not beneficiaries of the
Madibeng-Letupi Community Trust, nor are they trustees of the said
trust.
[4]
The Respondents were initially allowed
to graze their cattle on the property of the Applicant, subject to
payment of certain fees.
This was a verbal agreement. The Respondents
failed or refused to pay any of the amounts demanded by the Applicant
and the First
Respondent was indebted to the Applicant in the amount
of R6400.00 (Six Thousand Four Hundred Rand) on December 2017. The
Second
Respondent was indebted to the Applicant in the amount of
R5620.00 (Five Thousand Six Hundred and Twenty Rand and the Third
Respondent
was indebted to the Applicant in the amount of R8970.00
(Eight Thousand Nine Hundred and Seventy Rand). Despite various
requests,
the Respondents remain indebted to the Applicants in the
aforesaid amounts.
[5]
The Respondents have on various
instances been requested to enter into a formal written agreement
with the Applicant to establish
their contractual grazing rights
against the property on payment of the fees as required by the
Applicants, but the Respondents
have refused to comply with the
demand of the Applicant. The Respondents argued that they entered
into a verbal agreement with
the beneficiaries of the Trust to graze
their cattle on the Trust's property. The Respondents have no legal
right or any other
right to occupy the property of the Applicants,
nor any grazing rights on the property.
[6]
In the result, the Applicants brought an
application in the Magistrate's Court Sekgosese wherein the
Applicants applied for (a)
"eviction" of the cattle
(livestock) of the Respondents on the property, (b) that the Sheriff
or the Pound Master be
authorized to remove the cattle (livestock)
form the properties and keep same in pound until the Respondents have
paid the outstanding
grazing fees and the costs of the Application,
(c) that the Respondents pay the costs of the application on the
scale as between
attorney and client.
[7]
At the hearing of the matter, the
Magistrate raised two questions namely:- (1) whether the court had
jurisdiction to hear the matter
and (2) whether there are disputes of
fact. The legal representative on behalf of the Applicants applied
from the bar that a prayer
be added to the notice of motion in terms
whereof an interdict is issued prohibiting the Respondents from
grazing their cattle
on the said property. The Respondents legal
representative consented to this amendment and according to the
Magistrate the amendment
then had the effect that the court acquired
the necessary jurisdiction to hear the matter.
[8]
In respect of the second question
whether there are disputes of fact, the Applicant's legal
representative argued that on the documents
before the court a
quo
there are no disputes of fact. It
was further argued by the Applicant's legal representative that the
Respondents did not reply
to paragraphs 8, 9, 10 and 11 of the
founding affidavit, which paragraphs contain the cause of action and
that their failure to
deal with these paragraphs constitutes an
admission of the facts contained therein. The Respondents legal
representative argued
that it was dealt with under background and the
failure to deal with these paragraphs were an omission. The
Respondent's legal
representative contended that there are disputes
of fact and the matter should be referred to oral evidence. The
Magistrate hearing
the matter opined that there can be a dispute ,
but the question was whether was it really a matter that needed to be
determined
through oral evidence. The Magistrate afforded the
Respondents' legal representative an opportunity to either proceed
with the
matter and finalise it, alternatively to apply for an
amendment. The Respondent's legal representative indicated that the
answering
affidavit will have to be amended and by doing so also
conceded that on the papers before court there were no dispute of
fact.
The Respondents wanted to apply for a postponement in order to
amend their answering affidavit but was refused the postponement
in
that the Magistrate was of the view that even if a postponement was
granted for the Respondents to amend, it will not change
the
situation and the Respondents still would not have a defense to the
cause of action and in the result, the learned Magistrate
proceeded
to make a final order.
[9]
The Appellants' noted an appeal against
the whole judgment of the
court a quo
on the grounds that the Magistrate
in essence:
(a)
erred in not finding that the Applicants
affidavit did not meet the requirements of an interdict and erred in
granting the interdict;
and
(b)
erred in granting the eviction order
against the three Respondents;
(c)
erred in authorising the Sheriff or the
Pound Master to remove the cattle from the property;
(d)
erred in not finding that there is a
contract which the parties did not cancel;
(e)
erred in not finding that there are
disputes of fact which required oral evidence; and furthermore ;
(f)
erred in not finding that the
Magistrate's Court does not have jurisdiction, but that the dispute
falls within the jurisdiction
of the Land Claims Court.
Case
Law:
[10]
Firstly, I will deal with the interdict granted. The Magistrate
granted a final interdict. The well-known
requirements for a final
interdict as set out in
Setlogelo v Setlogelo
1914 AD 221
and
Free State Gold Areas Ltd v Merriespruit Gold Mining Co
1961 (2)
SA 505
(W)
are:-
(i)
A clear right on the part of the
applicant;
(ii)
An injury actually committed or
reasonably apprehended;
(iii)
There is no other satisfactory remedy
available to the Applicant.
I will deal with each of these
requirements in turn:
[11]
A 'clear right'.
Interdicts involve the enforcement
and protection of rights. It follows that the first prerequisite for
the granting of an interdict
is the existence of a right accruing to
the person who seeks to enforce the interdict. For a court to grant a
final interdict,
it must be satisfied that the right to be protected
is a 'clear right'. To establish that the right in question is a
'clear right',
as opposed to a
' prima facie
right', involves
two steps:
(a)
First confirming that the right
exists in law. The right to be protected or enforced needs to be
identified. In this case rights
are created by contract for instance
the tenants' rights of occupation created under the contract of
lease. Whether or not the
Applicants has, a right is therefore a
matter of substantive law, meaning that the right is one that is
recognised by law.
(b)
Secondly, proving that the right
exists in fact. Merely identifying the right is not sufficient to
make it a 'clear right'. A mere
allegation that it exists is
insufficient. Evidence must be led to prove its existence. For
instance, a right of occupation enjoyed
by a tenant would be proved
by the existence of an agreement of lease. To establish a clear
right, the applicant must prove the
existence of the right on a
balance of probabilities. A clear right may be either a real or a
personal right, in other words, a
right
in
rem
or a right in
person
am.
[12]
In this matter before court, it is
common cause that there existed an agreement, although a verbal
agreement, that the Respondents
are entitled to graze their cattle on
the property of the Applicants. Although the Respondents had not made
any payments for the
grazing rights, the Applicants only sent letters
of demand and in doing so did not terminate the agreement between the
parties.
Nowhere in the papers filed by the parties were allegations
made that the agreements were terminated, either. The Respondent's
version is however that they did not enter into an agreement with the
Trustees of the Applicant, but the beneficiaries. The beneficiaries
of the Applicant had no right or power to enter into an agreement
with the Respondents. Although the existence of an agreement
between
the Appellants and Respondents was not established, it is clear that
there must have been some sort of tacit or implied
agreement between
the parties either express or implied as the Respondents had been
grazed their cattle on the property for approximately
10 (ten) years,
and the Appellants had therefore demanded payment for such grazing.
On the Applicant's own version, there existed
a verbal agreement
between the parties. It is this court's view that the grazing rights
still exists in absence of the express
cancellation of the agreement
and therefore the Applicants had not established a "clear
right". A "clear right"
should not be confused with a
'real' right as in a real right of ownership (ius in rem). The fact
that the Appellants as a trust
are the owners of the property, does
not automatically mean that they have a "clear right", but
merely enjoy
ius rem
which
can be protected by the
actio in rem.
[13]
An injury actually committed or
reasonably apprehended.
The second requirement for a final
interdict is an 'injury actually committed or reasonably apprehended.
An 'injury' in this context
does not necessarily mean physical harm
or harm that results in financial loss. As explained in
Erasmus
(2003) Superior Court Practice, E8-6,
the authorities use the
word 'injury' to mean an act of interference with or an invasion of
the applicant’s right and resultant
prejudice. If an interdict
is required in order to prevent or stop the commission of a delict,
facts must also be alleged and proved
to show that the conduct of the
Respondent is wrongful. In this court's view, the Appellants did not
allege or prove the second
requirement in the papers as filed before
the court
a quo,
nor in their legal representative's argument
before the court
a quo
and as a result, the second requirement
was not proved to sustain a final interdict either.
[14]
Absence of any other satisfactory
remedy
The last requirement for a final
interdict is that the applicant must have no ordinary or satisfactory
legal remedy. Because an
interdict is a drastic remedy, the court
will not grant an interdict when some other form of redress would be
adequate or would
provide similar protection. This court is satisfied
that in this instance the Applicants had no other remedy than to
approach the
court
a
quo
for an interdict as they did.
[15]
The fact that the Applicants had
satisfied the third requirement however is not sufficient to grant an
interdict. All three requirements
must together be satisfied and in
the result this court is of the view that the court
a
quo
was incorrect in granting the
final interdict. The appeal on this aspect therefore succeeds.
[16]
The second ground of appeal is that the
court
a quo
erred
in granting the eviction. The Applicant brought an application for
the Respondent's eviction in terms of the common law. The
Respondents
argue that the Magistrate's Court does not have the necessary
jurisdiction to hear the matter and that the Land Claims
Court is the
relevant court with the necessary jurisdiction in that the eviction
falls within the ambit of the Labour Tenants Act,
Act 3 of 1996
("LTA).
[17]
In terms of
Section
17(1) of LTA,
a labour tenant is
defined as follows:-
"labour tenant" means
a person (a) who is residing or has the right to reside on a farm;
(b) who has or has had the right
to use cropping or grazing land on
the farm, referred to in paragraph , or another farm of the owner,
and in
consideration of such right provides or has provided labour to the
owner or lessee:
and (c)
whose parent or grandparent resided or resides on a farm and had the
use of cropping or grazing land on such farm or another
farm of the
owner,
and
in consideration of such right provided or provides labour to the
owner or lessee of such or such other farm,
including
a
person
who has been appointed
a
successor to
a
labour tenant in
accordance with the provisions of section 3(4) and (5), but excluding
a farmworker (own emphasis).
[18]
The Respondents do not and have not
provided labour to the owners of the property and therefore the LTA
is in our view not applicable
to this matter. It is this court's view
that the Applicant's brought the application in terms of the common
law in that the common
law is applicable to all kinds of evictions
from commercial property utilised for commercial purposes, all other
evictions from
residential property not utilised for residential
purposes and
agricultural land which
is not utilised in any way for dwelling or residential purposes
(own emphasis). The Applicant's remedy at common law is the
rei
vindicatio.
See
Graham v
Ridley 1931 TPD 476
and
Chetty v
Naidoo 1974 (3) SA 13 (A).
[19]
In the Magistrate's Court, if there is
no consent to jurisdiction, the Magistrate's Court's jurisdiction is
determined in terms
of Section 29(1)(b) of the Magistrate's Court Act
32 of 1944 on the basis of the value of the right of occupation to
the occupier
not exceeding R200 000.00 (Two Hundred Thousand Rand).
In the result, the Magistrate's Court had the necessary jurisdiction
to
hear this matter, on eviction of the Respondents.
[20]
In
Jordan
v Penmill Investments CC
1991 (2) SA 430
(E)
it
was however held that a final order for common law ejectment may only
be obtained by way of an action, although interim relief
may however
be granted on motion. The magistrate's court has no inherent
jurisdiction to make a final order for eviction or ejectment
upon
application for common law ejectment as opposed to proceedings
instituted by way of summons. Section 29 (1) (b) of the said
Act
provides that the magistrate's court shall have jurisdiction in
"
actions
of ejectment against the
occupier of any premises or land within the district".
[21]
The situation differs however in the
instance where an application for ejectment was made in terms of
Prevention of Illegal Eviction from
an Unlawful Occupation of Land Act, Act 19 of 1998 (PIE). Erasmus &
Van Loggerenberg ("
The Civil Practice of the Magistrate's
Courts" Service 11, 2003)
the
writers contend that the word
"
action"
in section 29 (1) has
the narrower meaning of proceedings initiated by summons. Thus an
application for the delivery of property
or for permanent final
ejectment may not be brought in the magistrate's court. However, the
latter limitation does not apply to
proceedings for eviction in terms
of the PIE and the
Extension of Security of Tenure Act 62 of 1997
["ESTA".] Section
4
(1)
of the PIE stipulates that
"
notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to
proceedings by
any owner or person in charge of land for the eviction of an unlawful
occupier' .
The word "proceedings,"
it was stated, can be interpreted to include applications. The court
a
quo
therefore
could not have been competent to grant the final order on the
application before it. The court below could only have granted
an
interim order. In the result, the appeal must on this ground succeed.
[22]
Furthermore, in terms of the common law,
eviction proceedings cannot commence, unless the lease had been
cancelled. In
Morkel v Thornhill
(A105/2009)
[2010] ZAFSHC 29
(4 March 2010)
it
was held that a notice of cancellation must be clear and unequivocal
and only takes effect from the time it is communicated to
the
relevant party. As stated above, there is no such cancellation on the
papers filed before the court a
quo,
and it can therefore be accepted
that although there was a demand for payment, the agreement was never
cancelled. In the result,
the court a
quo
should not have entertained the
eviction proceedings. The court
a quo
erred in granting the final eviction
and as a result, the appeal must succeed on this ground as well.
[23]
The last issue remaining in respect of
the grounds of appeal as raised by the Respondents is whether the
court below, could grant
an order authorising the Sheriff or the
Pound Master to remove the cattle from the property and impound the
cattle until payment
of the arrear amounts have been made by the
Respondents.
[24]
Section 46(2)(c) of the Magistrate's
Court Act
stipulates, as follows:
"46 Matters beyond the
jurisdiction:
(1)
....
(2)
A court shall have no jurisdiction in matters -
(a) ... .
(b)
.. ..
(c)
In which is sought specific
performance without an alternative of payment of damages except in
(i)
the rendering of an account in
respect of which the claim does not exceed the amount determined by
the Minister from time to time
by notice in the Gazette "
It is essential to realise that
section 46 is prohibitive in nature, prohibiting Magistrates' Courts
from hearing claims and granting
orders in those matters set out in
the said section. See
BADENHORST v THEOPHANOUS
1988 (1) SA 793
(C) at 796 E.
It is not an enabling or empowering
section.
[25]
In
Tuckers
Land & Development Corporation (Edms) Bpk v Van Zyl
1977 (3) SA
1041
(T) at 10450,
followed in
Otto
v Sasson
1994 (2) SA 744
(C),
Van
Reenen J finds the distinction between claims
ad
pecuniam solvendam
and claims
ad
factum praestandum
useful and he
expressly dissents from the decision in
Carpet
Contracts (Pty) Ltd v Grobler
1975 (2) SA 436
(T).
After
a review of the history of
Section
46(2)(c)
he concluded that orders
sounding in money, regardless of the cause of action, are not, for
the purposes of the section, orders
for specific performance. He
points out that from the history of the section the interesting fact
emerges that:-
"dat alhoewel daar heelwat
regterlike verskil was oor die landdroshof se bevoegdheid
om
daadwerklike
veNulling te gelas, daar nooit enige twyfel bestaan het oor die
bevoegdheid
om
eise wat in munt
geklink het, hetsy as skuld, skadevergoeding of andersins, af te
dwing nie. En ons het die historiese feit dat
die howe reeds duisende
der duisende sodanige bevele gemaak het." See
Jones
&
Buckle,
The Civil Practice of the Magistrate's Courts in South Africa, Tenth
Edition, Volume 1 (The Act page 188)
[26]
In
Van
Rensburg Pathologists Incorporated v Rampana (A70/2013)
[2013] ZAFSHC
191
(19 December 2013)
Van Zyl J
held as follows:-
"As
already indicated,
section 46
is
not the empowering section. Although I agree
with the interpretation of the word "matters", that only
means
that the
prohibitions
contained in
section 46 pertains to both applications and actions. The operative
word that
was
used by the Legislature in the
empowering
section 29
is
"actions': which
has
previously already been construed
as
to have the
restrictive meaning of action proceedings
as
such, not
including application proceedings. In
IN RE: PENNINGTON
HEALTH COMMITTEE
1980 (4) SA 243
(NPD)
at 247 H and further, the following dicta appear:
"A perusal of all the
sections shows that the Legislature drew
a
clear distinction
between actions and applications. Procedure by way of application is
recognised, but the intention appears to
have been to confer
jurisdiction generally in actions (in
a
narrow sense)
while authorising application proceedings only in specific cases. My
conclusion that the word 'actions in
s
29(1) means
proceedings initiated by summons is supported by the case of
WOLMAN
v BLOCK
(2)
1928
OPD 119
It
follows that the decision in
WOLMAN
v BLOCK
(supra) is still applicable notwithstanding that it dealt with
legislation which has since been repealed."
That
the use of application procedure to initiate proceedings in
Magistrates' Courts finds very limited application and that it
may
not be used if not specifically sanctioned, is very clear from the
following respective extracts :
"The Magistrates' Courts
Act and Rules provide only for applications in certain limited
circumstances. Other legislation may
also expressly or implicitly
empower applications in the Magistrates' Courts.
..
..Although, in
the Magistrates' Courts, the only applications that are strictly
speaking capable of being independent proceedings
are interdicts and
spoliation orders
If
application proceedings are not sanctioned by the Act or rules or
other legislation it is not competent to launch proceedings
by way of
application. When proceedings are launched by application not
sanctioned in the rules or Act, they are
a
nullity in
terms of the Act and Rules
.
(Own emphasis)
See
CIVIL
PROCEDURE IN MAGISTRATES' COURTS
,
LTC Harms, at B 485
-
B 486.
"Die aansoek of mosie kan
slegs in gevalle waarvoor uitdruklik voorsiening gemaak is, gebruik
word
om
gedinge
in te stel. Word dit gebruik in gevalle waarvoor daar nie voorsiening
gemaak is nie, kom geen geding binne die raamwerk
van die Wet op
Landdroshowe 32 van 1944 tot stand nie. Dit word aan die hand gedoen
dat die enigste gevalle waar van die aansoek
as middel tot die instel
van 'n selfstandige geding ingevolge die Wet op Landdroshowe 32 van
1944 gebruik gemaak kan word, is wanneer
'n finale interdik en die
mandament van spolie aangevra word."
[27]
It is this court's view that although
the Magistrate's court does have jurisdiction to entertain an action
for specific performance,
it follows that if the agreement between
the parties was not unequivably cancelled, neither were the terms and
conditions of the
agreement fully pleaded, the Magistrate could not
have granted an order for specific performance in that the cattle be
impounded
by the Pound Master until payment of the arrear amounts
have been made by the Respondents. In addition, the Magistrate erred
in
granting the relief of specific performance on motion proceedings.
The Applicant should have instituted action proceedings. In the
result, the appeal on this ground must also succeed.
[27]
The only issue remaining is costs. The
general rule is that the successful party should be awarded costs.
There is in this court's
view no reason why the general rule should
not be applicable and in the result the appeal succeeds with costs.
Order:
[28]
The following order
is made:-
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
handed down on 21 August
2018 is set aside.
3.
The Respondent in the
Appeal/Applicant in the court
a
quo
to pay the costs of this
appeal.
M. NAUDE
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I
AGREE, and it is so ordered.
M.G PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
HEARD
ON:
21 AUGUST 2020
JUDGMENT
DELIVERED ON 28 AUGUST 2020
For
the Appellants:
Mr. Phooko
Instructed
by:
Moloko Phooko Attorneys
For
the Respondent:
Adv. M. Bresler
Instructed
by:
Chari Naude Attorneys.
POLOKWANE