About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2019
>>
[2019] ZAECMHC 6
|
|
Department of Rural Development Land Reform and Another v Ntsadu and Others (3771/2018) [2019] ZAECMHC 6 (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO:
3771/2018
Date
heard
:
07 February 2019
Date
delivered
:
26 February 2019
In
the matter between:
DEPARTMENT
OF RURAL DEVELOPMENT
LAND
REFORM
First
Applicant
CHIEF
MNCEDISI NDAMASE
Second
Applicant
and
ANDILE
NTSADU
First
Respondent
THOKOZILE
NTSADU
Second
Respondent
VUYISA
MBIZA
Third
Respondent
MR
QUPE
Fourth
Respondent
ALL
PERSONS ASSOCIATING THEMSELVES WITH FIRST TO THE FOURTH
RESPONDENTS’ UNLAWFUL ACTIVITIES IN FARM 191, SIBANGWENI,
LIBODE
Fifth
Respondent
UNLAWFUL
INVADERS OF FARM 191, SIBANGWENI, LIBODE
Sixth
Respondent
JUDGMENT
LOWE,
J
:
INTRODUCTION
[1]
This matter was brought as an urgent interdict, Applicants seeking an
interdict restraining Respondents and any persons acting “
in
cahoots”
with them from occupying Farm Sibangweni No. 38,
Nyandeni Municipality, Libode also known as Farm 191
(“the
land”),
together with ancillary relief preventing
Respondents from erecting structures on the land.
[2]
First to Fourth Respondents gave notice to oppose and have filed
answering
affidavits.
[3]
It seems unlikely that the remaining Respondents are properly before
the
Court but that is a matter for another day.
[4]
First to Fourth Respondents raised the following points
in limine
:
1.
Non-Joinder;
2.
Urgency;
3.
Locus standi
of Applicants.
[5]
It is clear from the affidavits that the land incorporates an
“
allotment 225”
in respect of which allotment
First to Fourth Respondents assert title.
[6]
The urgency issue in the light of the full set of papers filed
essentially
falls away. In any event on the facts set out
I consider the matter to have been of sufficient urgency to warrant
the
procedure and time limits of the application process.
[7]
As to non-joinder after some argument, First to Fourth Respondents’
counsel correctly on the facts and on the inevitable findings flowing
from the facts and the law, abandoned same.
THE
ESSENTIAL BACKGROUND
[8]
I will set out only those facts relevant to the remaining point
in
limine.
[9]
The parties
were correctly of the view that
locus
standi
should
be determined before the merits, as disposition of an application
where Applicants have no
locus
standi
is
in principle the appropriate procedure as this
,
the issue, is divorced from the substance of the case.
[1]
[10]
Shortly then Applicants contend, through the Chief Director Mthatha,
Eastern Cape Provincial
Shared Service Centre of the Departments of
Rural Development and Land Reform, that First Applicant is the
custodian of the land
and annexes a Certificate of Registered State
Title T00075/2009 [Issued under the provisions of
Section 18
of the
Deeds Registries Act, 1937
(No. 47 of 1937)]. This certificate
reads as follows:
“
CERTIFICATE
OF REGISTERED STATE TITLE
[Issued
under the provisions of section eighteen of the
Deeds Registries Act,
1937
(No. 47 of 1937)]
Whereas
the Minister of Lands has applied under the provisions of section
eighteen of the
Deeds Registries Act, 1937
, for the issue to the
Republic of South Africa of a certificate of registered State title
in respect of the undermentioned land,
being a piece of unalienated
State land which has been separately surveyed and is shown on the
diagram annexed thereto.
Now
therefore, in pursuance of the provisions of the said Act, I the
Registrar of Deeds at UMTATA do hereby certify that the said
REPUBLIC
OF SOUTH AFRICA
its
successors in title or assigns is the registered owner of the FARM
SIBANGWENI NO. 38, NYANDENI MUNICIPALITY, DISTRICT OF LIBODE,
PROVINCE OF THE EASTERN CAPE, IN EXTENT: 6073,0976 (Six Zero
Seven Three Comma Zero Nine Seven Six) Hectares, (Held by SG
Diagram
No. 3997/2006).
In
witness whereof the said Registrar, have subscribed to these
presents, and have caused the seal of office to be affixed thereto.
Thus
done and executed at the Office of the Registrar of Deeds at Umtata
on this 29 Jan 2009 day of 29 Jan 2009.”
[11]
Section 18
of the
Deeds Registries Act 47 of 1937
contemplates
that such a Certificate of Registered State Title (as in this matter)
may be executed in respect of unalienated State
land.
[12]
There can be no doubt that the land relevant in this matter is indeed
unalienated State
land in respect of which a perfectly proper and
legitimate Certificate of Registered State Title has been issued.
[13]
This alone answers part of Respondents
locus standi
point.
However Respondents contend that Applicants have no
locus standi
as they are not “
custodians of the land in question”
referring to Section 1 of the Upgrading of Land Tenure Rights Act 112
of 1991.
[14]
First to Fourth Respondents allege that “
Allotment 225”
belongs to the late Milton Ntsadu in terms of Proclamation 26 of 1936
as read with the
Communal Land Rights Act of 2004
.
[15]
I do not intend to deal with the above on the allegation that the
Late Ntsadu or his Executor
has land tenure in terms of Act 112 of
1991, save to point out that the Late Ntsadu’s rights
purportedly at least lapsed
on his death in terms of Section 9(2) of
the Proclamation, his widows and/or heirs having first claim to
re-allotment of the said
Allotment 225. The papers do not
set out this latter event at all. This is however for another
Court to decide
in due course if
locus standi
is established
and is not relevant thereto for present purposes – and I make
no finding hereon.
STATE
LAND
[16]
The State carries out various functions of Governance of land.
National and Provincial
Government may have governance responsibility
in respect of National State land and other public land.
[17]
On 27 April 1994 all State land vested in either the National
Government or a Provincial
Government as per Section 239 of the
Interim Constitution Act 200 of 1993. The 1996 Constitution
effectively re-enacts Section
239 in Item 28 of Schedule 6. As
was previously the case Certificates were to be issued by the
Minister of Rural Development
and Land Reform.
[18]
In Schedule 4 to the 1996 Constitution the Development functions of
State land are in the
first instance the responsibility of the
Provinces.
[19]
The
Government Immovable Asset Management Act 19 of 2007
provides a
framework for management of,
inter
alia
,
land held or used by a National or Provincial Department.
[2]
This affects effective rearrangement of immovable property within
Government. The Act specifies that the Minister of
Land Affairs
(now the Minister of Rural Development and Land Reform) is the
custodian of land vesting in the National Government
and situated in
“
the
former homelands”
–
unless this specific function had been assigned to other Ministers in
previous legislation.
[3]
[20]
None of the parties herein contend that the land concerned is either,
“
old”
or “
new”
Municipal
commonage, nor does this appear to be the case
in casu
and
accordingly I will not deal therewith.
[21]
The Proclamation relied upon refers, where relevant to this matter,
to arable allotments
(Section 4) and not commonage which is dealt
with in Section 5. The permission given in 1968 related to an
arable allotment.
[22]
The First
to Fourth Respondents were not in occupation of the allotment prior
to 7 August 2018 insofar as the papers allege.
Nothing is set
out as to what happened to the land, or whether it was farmed or
occupied after the death of the Late Ntsadu many
many years ago.
[4]
[23]
It would seem to me that on the papers and having referred to the
Certificate of Registered
State Title relevant and against the
background of the Legal Enactments relevant there can be no doubt
that the First Applicant
has
locus standi
to bring this
matter.
[24]
In the result the objection as to
locus standi
falls to be
dismissed.
[25]
As to costs it seems to me that these should be reserved for the
Court dealing with the
merits of the dispute in due course.
[26]
It is accordingly ordered that the First to Fourth Respondents’
points
in limine
fall to be dismissed, costs reserved.
_________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Obo
the Applicants
:
Adv E M Matanda
Instructed
by
:
The State Attorney,
Mthatha
Obo
the Respondents
: Adv M I
Mneno
Instructed
by
:
Mgxaji Zazaza Attorneys,
Mthatha
[1]
Giant
Concerts CC v Rinaldo Investments (Pty) Limited & Other
2013
(3) BCLR 251
(CC) para [41].
[2]
Section
3
[3]
Section
4 and White Paper 5.7; LAWSA, Vol 10 para 49-50
[4]
I
need thus not refer to or apply
Nandipha
NO v Irfani Traders CC t/a Jabulani Hardware and Another
(4654/2017)
[2018] ZAECMHC 50 (21 August 2018)