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[2019] ZAFSHC 196
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Mangaung Township Community Working Group (Commonly known as MUCPP Community Working Group) v Commtech Comprehensive School and School Governing Body and Others (4586/2018) [2019] ZAFSHC 196 (27 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No
: 4586/2018
In
the matter between:
MANGAUNG
TOWNSHIP
COMMUNITY
Applicant
WORKING
GROUP (COMMONLY KNOWN
AS
MUCPP COMMUNITY WORKING GROUP)
and
COMMTECH
COMPREHENSIVE SCHOOL
First Respondent
AND
SCHOOL GOVERNING BODY
UNIVERSITY
OF FREE
STATE
Second Respondent
[In
its capacity of being part of the outreach
project
MUCPP Project]
MR
BILLYBOY
RAMATLHELE
Third Respondent
[In
his capacity as the University of Free
State
Community engagement for
MUCPP
Project]
MEMBER
OF EXECUTIVE COUNCIL FOR
Fourth Respondent
THE
DEPARTMENT OF HEALTH
FREE
STATE PROVINCE
MEMBER
OF EXECUTIVE COUNCIL
FOR
Fifth Respondent
THE
DEPARTMENT OF EDUCATION
FREE
STATE
MASTER
OF THE HIGH COURT
N.O.
Sixth Respondent
BLOEMFONTEIN
PROFESSOR
BASSIE WESSELS
Seventh Respondent
[Interested
Party]
THE
REGISTRAR OF DEEDS
N.O.
Eighth Respondent
PREMIER
OF FREE STATE
PROVINCIAL
Ninth Respondent
GOVERNMENT
[Interested
Party]
HEARD
ON:
13 JUNE 2019
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
27 JUNE 2019
[1]
This is an application for certain relief against mainly the First
Respondent. In terms of the amended Notice of Motion handed
in
without objection during the hearing of the application, the
following relief is sought:
"(a) Directing
the First Respondent to return the control, possession and occupation
of the premises commonly known by Mangaung
Community
as
MUCPP
situated at 19057 Singonzo Street, Rocklands, Bloemfontein,
a
property owned by Free State Provincial Government, the Ninth
Respondent.
(b) Interdicting the
First Respondent from engaging in the following activities:
(i)
Unlawfully
using force to evict the Applicant from the premises owned by the
Provincial Government of Free State Province, situated
at 19057
Singonzo Street, Rocklands, Bloemfontein.
(ii)
Unlawfully
assaulting and preventing the Applicant and its members' access,
possession, control and occupation of the premises.
(c) Declaring the
conduct of the Second Respondent, for stating that the First
Respondent is the rightful owner of the premises
owned by the
Provincial Government, Free State Province and that the Applicant be
instructed to hand over the keys to the First
Respondent, be declared
unlawful.
(d) Ordering that the
Applicant are to occupy the premises commonly known as MUCPP, being
a
property of Free State Provincial Government situated at 19057
Singonzo Street, Rocklands, Bloemfontein.
(e) Costs of suit.
"
[2]
This relief is claimed following an incident that allegedly took
place on 13 September 2017 at the premises mentioned in the
Notice of
Motion. According to the facts alleged in the Founding Affidavit,
members of the Applicant were assaulted, insulted,
robbed and evicted
from the premises by teachers, staff members and some learners of the
First Respondent on that day.
[3]
In opposing
the application, the First, Second, Third, Fourth and Fifth
Respondents raised an objection to the
locus
standi
of
the Applicant in the proceedings. Having read the application papers,
it appeared to me that this objection needed to be addressed
first,
and I therefore requested counsel to address the Court on this issue
only.
[1]
This judgment therefore
concerns the issue of
locus
standi
of
the Applicant only.
[4]
In the Founding Affidavit, it is explained that a certain Trust, the
MUCPP Trust, was registered in 1994. In terms of the Deed
of Trust,
which forms part of the papers submitted by the Applicant, this Trust
has 16 (sixteen) trustees, and bears the name Mangaung
- University
of the Orange Free State Community Partnership Programme Trust. The
"Community Working Group11 ,
who is the Applicant in the
present proceedings, is defined in the Deed of Trust as
11the
group of members of the beneficiary community who take part in the
activities of the Trust and which group is co-ordinated
by the
Trust.11
The deponent to the Founding Affidavit, Mr. M. J.
Khethelo, states that he is one of the representatives of the
Community Members
elected to represent them at the Trust on 19
September 2012.
[5]
The Deed of Trust provides for 3 (three) working groups which will
liaise closely with the management committee of the Trust,
namely the
Community Working Group (the present Applicant), the Academic Working
Group and the Bloemfontein Health Services Forum.
The Deed further
provides that the Trust may take action in a court of law and may
defend any proceedings that are instituted against
the Trust. No such
powers are bestowed on any of the working groups of the Trust. In
presenting argument at the hearing of the
application, Mr. Ponoane
appearing for the Applicant, conceded that the Applicant is not a
legal persona or juristic entity separate
from the Trust.
Incidentally, the Trust itself is not a party to the application at
all.
[6]
On 13 December 2018 the First, Fourth and Fifth Respondents served a
Rule 7(1)
Notice
requiring proof of Mr. Khethelo's authority
to have signed a Founding Affidavit on behalf of the Applicant on 6
September 2018 and
to bring the Application on 10 September 2018. In
reply hereto, the Applicant filed a Resolution signed on 6 February
2019
"to ratify, mandate and support the application
...
brought by Mr. M J. Khethelo on behalf of MUCPP elected Community
Group, and sign any further papers in the proceedings."
This
Resolution was therefore passed some 5 (five) months after Mr.
Khethelo has launched the application on behalf of the Applicant.
[7]
A further development in the sequence of events needs mentioning
here. It transpired during the hearing of the Application that
the
Trustees of the MUCPP Trust had signed a Resolution on 22 January
2019 to terminate the Trust. It became common cause between
the
parties that the Sixth Respondent formally acknowledged the
termination of the Trust on 25 April 2019, almost 2 (two) months
before the hearing. To be fair to the Applicant, I also need to
mention that this information was apparently received by the
Applicant
a few days before the hearing.
[8]
In the founding papers, the Applicant points out that the property in
question was always in the lawful possession, occupation
and control
of the Applicant, in partnership with the Second and Fourth
Respondents, without any disturbance, since the year 1994.
The Second
and Third Respondents mention in their opposing affidavit that the
premises boasts a number of improvements, for instance
a building
with offices, halls and a guesthouse. Apparently there is also a
community health centre. or clinic, according to the
Applicant. The
Applicant goes on to say that, at some point, the Fifth Respondent
had allowed the First Respondent to use the premises
for exams and
for sporting activities. The school premises of the First Respondent
is adjacent to the premises in question. Later
on, certain disputes
arose between the Applicant and the First Respondent, and it was
these disputes that apparently led to the
incident of 13 September
2017. In the opposing papers, the fact that the Applicant has been in
control of the premises for a considerable
period of time, is not
seriously disputed.
[9]
The
authorities on legal standing clearly point out that such standing is
not only a procedural question but also a question of
substance. The
Applicant has to show that it is the rights-bearing entity. or is
acting on the authority of the entity, or has
acquired its rights.
[2]
The phrase
locus
standi in iudicio
is
commonly used in another context, namely that it is a requirement
that a party to litigation must have a direct and substantial
interest in the right, which is the subject matter of the litigation,
and in the outcome of the litigation.
[3]
[10]
As far as trusts are concerned, it is trite that the property of a
trust vests in the trustee. A beneficiary of the trust does
not have
locus
standi
to
institute proceedings against other parties to protect or recover
trust property for the trust.
[4]
[11]
Coming back to the facts of the present matter, it is evident on the
Applicant's own version that it is not a juristic person,
but only a
functionary of the MUCPP Trust, which Trust has not authorised the
Applicant to institute the proceedings on its behalf.
It is further
evident, having regard to the Deed of Trust, that the Applicant
Working Group owes its existence to the Trust, and
that it functions
under the auspices of the Trust. It follows that, in this sense, the
Applicant has no
locus standi
to move for the relief set out
in the amended Notice of Motion.
[12]
The question now is whether there is any other basis on which the
Applicant can claim
locus standi in iudicio.
In this respect
it is appropriate to refer to the Founding Affidavit again. In the
affidavit, the deponent says that he is a resident,
a community
leader and a representative of the community members of Mangaung
Township elected to represent them at the MUCPP Trust.
He further
states that he has a right to bring the application in terms of the
provisions of Section 38 of the Constitution.
[13]
Section 38 of the Constitution provides that where it is alleged that
a right in the Bill of Rights has been infringed or threatened,
the
following persons may approach a competent court for relief: (a)
anyone acting in their own interest, (b) anyone acting on
behalf of
another person who cannot act in their own name, (c) anyone acting as
a member of, or in the interest of, a group or
class of persons, (d)
anyone acting in the public interest, and (e) an association acting
in the interest of its members. As for
(d}, there is no allegation in
the application papers that the Applicant is acting for the sake of
the public interest. It is only
(c) that can maybe find any
application here, because the deponent is acting on behalf of a group
of persons, as the name of the
Applicant in the amended Notice of
Motion clearly indicates. This is, of course, if it is accepted that
a right in the Bill of
Rights has been infringed, as alleged.
[14]
At best for the Applicant in this respect, the proceedings before me
can be defined as a group or class action in circumstances
where the
group is acting separately and independently from the Trust. Mr.
Ponoane, for the Applicant, stressed the point in argument
that the
Applicant has established a direct and substantial interest in the
affairs of the Trust, and as such1 it has
locus standi
to
bring the application. Although there may be some merit in this
submission at a first glance, it leads to another dilemma for
the
Applicant.
[15]
It has been
held that a party seeking to represent a class or group of persons in
court proceedings, should first apply to court
to do so.
[5]
The certification by a court to proceed with a class or group action.
involves questions relating to the definition of the class,
the
identification of some common claim or issue1 some evidence of a
valid cause of action, the suitability of the representative,
and
that a class action is the most appropriate procedure for the
adjudication of the underlying claims.
[6]
Needless to say, the deponent in the present matter1 has not
approached the court for the necessary certification to proceed on
behalf of the group of people called the Mangaung Township Community
Working Group. It is important to note that the Group obviously
represents the community of the Mangaung Township, and can therefore
not be regarded as a group of only a few persons acting outside
the
auspices of the Trust. The Applicant cannot claim
locus
standi
on
the basis of a group or class action in the absence of certification
by a Court.
[16]
There is, however, another basis on which the Applicant may have
shown
locus
standi,
and
that is the basis provided by the Mandament van Spolie. Since legal
standing also involves questions of substance, as we have
seen, this
issue calls for further consideration. By means of the Mandament,
physical possession is protected and the relief in
terms thereof
arises solely from deprivation of possession, otherwise than through
legal procedure. All that a Plaintiff has to
allege and prove, is
that he was in peaceful and undisturbed possession of the
property.
[7]
[17]
The cause
of the Plaintiffs possession is irrelevant, and it is also irrelevant
that the Defendant has a stronger right or claim
to possession. Also
irrelevant is the fact that the possession of the claimant is
wrongful.
[8]
The Plaintiff only
has to prove unlawful deprivation in the sense that it took place
without his consent or due legal process.
[9]
[18]
In the present case, the Applicant is a group of community members,
representing the community of Mangaung Township, who claim
that they
were in undisturbed possession of the premises, and that they have
been unlawfully deprived of that possession by the
First Respondent.
The relief they claim, is undeniably based on the Mandament. For this
reason only, they have shown
locus standi
in the matter.
[19]
As for the
launching of the Application without authority to do so, there are a
host of authorities stating that such proceedings
may be ratified
subsequently, as happened in the present instance.
[10]
The fact that the proceedings were only ratified afterwards,
therefore does not stand in the way of the Application as such.
[20]
In the premises, the following orders are made:
1. The Applicant has the
necessary
locus standi
in the proceedings.
2. The application may be
enrolled again for further hearing.
3. Costs of the
proceedings relating to
locus standi,
to be costs in the
cause.
_____________________
P
J LOUBSER, J
For
the Applicant:
Mr.
M J Ponoane
Ponoane
Attorneys
BLOEMFONTEIN
For
First, Fourth and Fifth Respondents:
Advocate
M. J Merabe
Instructed
by:
The
State Attorney
BLOEMFONTEIN
For
Second and Third Respondents:
Advocate
J.M.C. Johnson
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
[1]
See: Giant Concerts CC v Rinaldo Investments (Pty) Ltd
2013 (1) BCLR
251
(CC) at par. 58
[2]
Land and Agricultural Development Bank of SA v Parker
2005 (2) SA 77
(SCA)
at par. 44. Sandton Civic Precinct (Pty) Ltd v City of Johannesburg
(2009) 1 All SA 291
(SCA) at par. 19.
[3]
Jacobs v Waks
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 534
[4]
See for instance: Harms, Civil Procedure in the Superior Courts,
Issue 57, page A - 59
[5]
Mukaddam v Pioneer Foods
(2013) ZACC 23
at par. 40
[6]
Pretorius v Transnet Second Defined Benefit Fund
2014 (6) SA 77
(GP), Trustees for the time being of the Children's Resource Centre
Trust v Pioneer Foods (Pty) Ltd 2013 (2) SA 213 (SCA)
[7]
Impala Water Users Association v Lourens N.O. (2004) 2 All SA 476
(SCA)
[8]
Yeko v Qana
1973 (4) SA 735
(A)
Ivanov
v North West Gambling Board
(2012) 4 All SA 1
(SCA)
[9]
Wightman v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA)
[10]
For the authorities, see Harms, supra, par 86.8 on page 8 37, 38