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[2019] ZALMPPHC 8
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Elisa and Others v Manhata and Others (HCA37/2017) [2019] ZALMPPHC 8 (14 March 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NUMBER:
HCA37/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO THE
JUDGES: YES
(3) REVISED
DATE: 4/3/2019
SIGNATURE:
In
the matter between:
MALEPENG
MOLATELO ELISA AND OTHERS
APPELLANTS
And
KGOSHIGADI
M.R. MANTHATA
FIRST RESPONDENT
MANTHATA
TRADITIONAL AUTHORITY
SECOND RESPNDENT
MADIKELEDI
RASHALAGA
THIRD RESPONDENT
MEMBERS
OF THE EXECUTIVE COUNCIL
DEPARTMENT
OF COCHSTA, LIMPOPO PROVINCE FOURTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
This appeal is against the judgment and order of Magistrate Rambuda
NK sitting at
Bochum Magistrate Court. The appeal is against the
decision of the court in dismissing the appellants’
application.
[2]
The appellants have launched an application in the court
a quo
seeking an order in the following terms:
“
1. That an
interlocutory interdict be granted interdicting the First to Third
Respondents from denying the applicants and any member
of the Motadi
Community, as listed on Annexure ‘MEM1’ to the
founding affidavit access to the Stettin graveyard
or cemetery
situated on the Stettin for as long as the interlocutory interdict is
a valid court order;
2. That the First to
Third Respondent and anyone under instruction of the aforementioned
Respondents, be interdicted from collecting
or demanding any fees
from any member of the Motadi Community for visiting Stettin
graveyard or to demand a fee to unlock the gate
to the graveyard;
3. That the Applicants
be ordered to formally and in writing engage the Fourth Respondent
with the purpose of involving the Fourth
Respondent to resolve the
issue and amongst others to
declare what the First to Third Respondents
rights in respect of the
Stettin graveyard are and to direct what the members of the Motadi
Community’s rights are in respect
of the graveyard;
4. That the
Applicants’ obligation to engage the Fourth Respondent shall be
exercised within one calendar month after the
interlocutory interdict
being granted. Should the Applicants fail to engage the Fourth
Respondent in time and in the absence of
an agreement in writing
between the parties to extend the one month period, any party shall
be entitled to apply for this interlocutory
interdict to be set
aside;
5. That any party to
this agreement may, if the Fourth Respondent fails to resolve the
dispute between the parties and further fails
to make an official
decision within 6(six) months after the Fourth Respondent has
received the written letter from the Applicants,
as set out in prayer
3 and 4 above, approach any High Court with jurisdiction with the
intention to obtain a declaratory order
or alternative applicable
relief;
6. The right of the
parties to approach the High Court, as set out in prayer 5 shall be
exercised within 3(three) months after 6(six)
period, referred to in
prayer 5, has lapsed without a decision being made;
7. That if none of the
parties approached a High Court as provided for in prayer 4, 5 and 6,
any of the parties and specifically
the Respondents shall be entitled
to set the interlocutory interdict aside;
8. That this interdict
(prayer 2 and 3) shall operate as an interim interdict and shall be
of force from the moment it is granted
up until the order is set
aside by this Court or other competent court on any ground;
9. That only the
respondent opposing this application be ordered to pay the costs of
this application on party and party scale if
opposed. The applicants
shall seek no costs against the Respondents if this application is
not opposed.”
[3]
The background facts are that the appellants are members of Motadi
Community and they
fall under the traditional jurisdiction of the
first and second respondents. The dispute is about the members of
Motadi Community
accessing the graveyard. The community members used
to pay R200.00 every time they enter the graveyard in order to bury
their loved
ones or to conduct any rituals on the gravesite of their
loved ones. The amount for accessing the graveyard has been increased
by the first and second respondents from R200.00 to R1500.00 with
effect from May 2015. The first and second respondents have locked
the gate of the graveyard and has appointed the third respondent as
the gatekeeper.
[4]
The community members of Motadi are disgruntled about the exorbitant
increase in the
fee payable to gain access to the graveyard. That led
to the appellants approaching the Magistrate Court, Bochum during
March 2017
for the relief as set in paragraph 2
supra.
[5]
The first to the third respondents have opposed the appellants’
application.
However, they filed their notice of intention to oppose
as well as their answering affidavit out of the prescribed time
period.
The respondents have failed to make a substantive application
for condonation for late filling of their notice of intention to
oppose as well as the answering affidavit. The fourth respondent did
not oppose the appellants’ application.
[6]
The Court
a quo
granted the respondents condonation for late
filling of their notice to oppose as well as the answering affidavit.
The court
a quo
proceeded to dismiss the appellants’
application on the basis that the appellants had an alternative
remedy of approaching
the High Court for a declaratory order.
Aggrieved by the dismissal of their application the appellants
appealed against the judgment
and order of the court
a quo
.
[7]
In this court counsel for the respondents’ correctly conceded
that their notice
of intention to oppose as well as answering
affidavit were filed out of time without filing a substantive
application for condonation
for late filing. They further conceded
that in the absence of a substantive application for condonation for
late filing of their
notice to oppose as well as answering affidavit,
the court
a quo
had no jurisdiction to
mero motu
or on
oral application from the bar, to condone the late filing of the
documents. In their view the court
a quo
should have
disregarded the answering affidavit as well as the replying affidavit
and considered the application based on the appellants
founding
affidavit. Counsel for the respondents contends that despite the
concession he had made, the court
a quo
was correct on the
facts of the case to dismiss the appellants’ application.
[8]
The question which this court must determine is whether the
appellants as per their
founding affidavit were entitled to be
granted the interim relief, and also whether the court
a qou
was correct in dismissing the appellants’ application.
[9]
The applicable test for granting of an interim relief were set out in
Setlogelo
v Setlogelo
[1]
being
(i) a prima facie right; (ii) a well-grounded apprehension of
irreparable harm; (iii) balance of convenience; and (iv) the
absence
of any other satisfactory remedy.
[10]
It is trite that the granting of an interim relief is an
extraordinary remedy which is within
the discretion of the court to
either grant or withhold. In
Knox
D’Arcy LTD and Others v Jamieson and Others
[2]
the court said:
“ …
Thus
in
Messina (Transvaal) Development CO LTD v South African
Railways and Harbours
1929 AD 195
at 215-16 Curlewis
JA
said:
‘
In an application
for an interim interdict pending action, the court has a large
discretion in granting or withholding an interdict.
Where there is
merely a possibility, not practical certainty, of inference or
injury, as in the present case, the Court will be
reluctant to grant
an interdict, especially if the party seeking the interdict will have
other means of redress and will not suffer
irreparable damage. And
the Court is entitled to and must regard the possible consequences,
both to the applicant and the respondent
which will ensure if the
interdict be granted or withheld”
[11]
The first requirement which the appellants must meet in order to
obtain an interim relief is
a
prima facie
right. The
appellants rely on the constitutional rights of the members of the
Motadi Community which is infringed by the imposition
of an
exorbitant levy. It is trite that the right is only required to be
prima facie,
though open to some doubts. The right need not be
clear. Section 31 of the Constitution protects the enjoyment of
culture, linguistic
or religious right of the community and its
members provided the right is consistent with the Bill of Rights. Not
every community
member will be able to afford to pay R1500.00 every
time they wanted to access the graveyard in order to conduct their
rituals
or to bury their loved ones. The members of Motadi community
have a right to use the graveyard like any other subjects of the
first
and second respondents. For that reason, the court is satisfied
that the appellants have established a
prima facie
right.
[12]
The second requirement for granting of an interim relief is for the
appellants to show that there
is a reasonable apprehension of
irreparable and imminent harm eventuating should the order not be
granted. The harm must be anticipated
or ongoing. It must not have
taken place already (
See Tshwane City v Afriforum
2016 (6) SA 279
(CC) at 360 B-C
).
[13]
The appellants in their founding affidavit have stated that the
members of Motadi Community’s
rights were infringed and that it
will continue in the foreseeable future to be infringed if the
application is not granted. They
have further stated that they are
having a clear right and it may not even be necessary for them to
establish irreparable harm
as required. Meeting the requirement of a
reasonable apprehension of irreparable and imminent harm is crucial
in the granting of
an interim interdict. In this case except that the
alleged harm is still ongoing, the alleged harm has already taken
place and
they have been aware of it for almost two years before they
took action.
[14]
The purpose of the interim interdict is to prevent the future harm.
In this case it is almost
two years since the levies were increased.
If there is any harm, the harm has been ongoing for the past two
years. Since the increased
levies have long been implemented, there
is no imminent harm that will occur. In my view the appellants have
failed to meet the
requirement of a reasonable apprehension of
irreparable and imminent harm.
[15]
The third requirement which the appellants are required to establish
for the granting of an interim
interdict is the balance of
convenience. With regard to this requirement there are two competing
interests. Those interests are
inextricably linked to the harm a
respondent is likely to suffer in the event the order is being
granted and the harm likely to
be suffered by an applicant if the
relief sought is not granted. (
See Tshwane City v Afriforum
supra
,
at 302 B-C
).
[16]
In the present case there is no doubt that the exorbitant increase of
the levies had an impact
on the appellants, and will cause serious
hardship on them. It is within the powers of the first and second
respondents to regulate
the levies in relation to the graveyard. The
first and second respondents are performing a public function, and
therefore their
action amount to an administrative action. The first
and second respondents are empowered to raise their revenue through
levies,
of which increasing the graveyard levies will be one of them.
[17]
The question now is whether by granting the interim interdict, will
the court not be preventing
the first and second respondent from
raising revenue, and in turn trespassing upon their sole terrain. In
National
Treasury v Opposition to Urban Tolling Alliance
[3]
the court said:
“
A court must be
astute not to stop dead the exercise of executive or legislative
power before the exercise has been successfully
and finally impugned
on review”
[18]
In terms of
Section
6 of the Promotion of Administrative Justice (PAJA)
[4]
any person aggrieved by the decision of an administrative organ may
take such decision on review in a court of competent jurisdiction
or
tribunal established for that purpose. The proper route for the
appellants to follow was to take the decision of the first and
second
respondents on review. The community of Motadi seems to be alive to
the review procedure as in their resolution dated 2
nd
January 2017 they have mandated their initial attorneys to launch an
application for review of the decision taken by Manthata
Tribunal
Authority during 2014. It is common cause that a Magistrate Court
does not have review powers.
[19]
The appellants are not seeking the interim relief pending the review
of the first and second
respondents’ decision to increase the
levies. They wanted the court to
a quo
to order them to engage
with the fourth respondent in order to resolve their issues. That
order the court
a quo
was not competent to grant it.
[20]
The first and second respondents have powers to run its affairs
independently and without any
interference. In performing their
functions they needed to be given space. There was no basis for the
court
a quo
to have interfered with the operations the first
and second respondents. The community’s resolution was to take
the decision
of the first and second respondents on review. That was
the best approach which the appellants should have followed in
vindicating
their rights. In my view, the appellants have failed to
meet the third requirement.
[21]
The fourth requirement which the appellants are required to meet is
the absence of any other
remedy. The appellants in the founding
affidavit have stated that they did everything to find an alternative
solution and were
unsuccessful and that the interim relief will
assist the community until such time that certainty is obtained. As I
have already
pointed out above the first and second respondents were
performing public function and that their action amounted to an
administrative
action. It follows that their decision to increase the
levies is susceptible to review under (PAJA). The appellants did not
follow
that route as mandated by the community members of Motadi.
Review process was an alternative remedy for the appellants’.
In my view, the appellants have failed to meet the fourth
requirement.
[22]
In
National Treasury v Opposition to Urban Tolling Alliance
supra
,
at 236 E-F
the court held that the common law annotation to the
Setlogelo test is that courts grant temporary restraining orders
against the
exercise of statutory nnnpower only in exceptional cases
and when a strong case for that relief has been made out. In the
present
case taking into account that the increased levies have
already been implemented, and the time period that have lapsed since
the
implementation date before the appellants took action, in my
view, there is nothing exceptional. Therefore, the court
a quo
was correct in dismissing the appellant’s application and the
appeal stand to fail.
[23]
In the result the following order is made
23.1
The appeal is dismissed with costs.
MF
KGANYAGO
JUDGE OF THE HIGH
COURT, POLOKWANE,
LIMPOPO DIVISION
I AGREE
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT
LIMPOPO
DIVISION
APPEARANCE:
COUNSEL
FOR THE PLAINTIFF:
Adv
NEMUKULA
INSTRUCTED
BY:
BALOYI
SHIHARE ATTORNEYS
COUNSEL
FOR DEFENDANT:
Adv
SIBIYA
INSTRUCTED
BY:
MAKGOBA
KGOMO AND
MAKGALENG
ATTORNEYS
DATE
OF HEARING:
22
ND
FEBRUARY 2019
DATE
OF JUDGEMENT:
14
th
March 2019
[1]
1914 AD 221
at 227
[2]
1996(4) SA 348(A) at 360 H-J
[3]
2012 (6) SA 223
(CC) at 231 E to F
[4]
Act 3 of 2000