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 11
|
|
Mthizana-Base and Others v Maxhwele and Others (3351/18) [2019] ZAECMHC 11 (28 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no. 3351/18
Date
heard: 29/1/19
Date
delivered: 28/2/19
Not
reportable
In
the matter between:
Nomakhwezi
Mthizana-Base
First Applicant
Buyiswa
Zwedala
Second Applicant
Mbiko
Lindiswa
Third Applicant
Nobelungu
Lumkwana
Fourth
Applicant
Lihleli
Lumkwana
Fifth Applicant
Lelethu
Lumkwana
Sixth Applicant
Mbambeleli
Siwapi
Seventh Applicant
and
Nosizwe
Maxhwele
First Respondent
Onke
Nyathi
Second Respondent
Vuyani
Madubela
Third Respondent
Thembisile
Mkhanzi
Fourth Respondent
Mteteleli
Mkhohli
Fifth Respondent
Sisa
Manyadu
Sixth Respondent
King
Sabata Dalindyebo Local Municipality
Seventh Respondent
JUDGMENT
Plasket
J:
[1]
This matter started life as an urgent application. A rule nisi was
issued on 31 July
2018. It was extended from time to time. This
judgment concerns the final relief sought by the applicants. That
relief is set out
as follows in the notice of motion:
‘
1
. . .
2
That first, second, third, fourth, fifth and sixth respondents (“the
respondents”) be and are hereby interdicted and restrained from
intimidating, threatening and evicting the applicants from
their
homesteads and/or plots in Bhongweni Phase 1, Zimbane Administrative
Area, Mthatha.
3
That first, second, third, fourth, fifth and sixth respondents (“the
respondents”) be and are hereby interdicted and restrained from
preventing the applicants access to their homesteads and/or
plots in
Bhongweni Phase 1, Zimbane Administrative Area, Mthatha.
4
That the respondents’ conduct described in prayers 2 and 3
above is
hereby declared unlawful.
5
That the respondents be and are hereby directed to forthwith restore
undisturbed
possession to the applicants of their homesteads and/or
plots in Bhongweni Phase 1, Zimbane Administrative Area, Mthatha.
6
That the respondents pay the costs of this application.’
[2]
It will be noted that no relief is sought against the King Sabata
Dalindyebo Local
Municipality, the seventh respondent, which appears
to have been joined at some time after the application had been
initiated.
It is cited as a respondent because of its interest in the
matter as owner – as alleged by the applicants – of the
land that forms the subject matter of this dispute. It has played no
part in these proceedings.
[3]
The applicants set out in detail a series of allegations against the
first to sixth
respondents, whom I shall refer to as ‘the
respondents’. These allegations involve threats being made
against them,
the threatened dispossession of their homes and
unlawful encroachments on their homes. If established, it seems to
me, these allegations
will justify the granting of the relief claimed
by the applicants in their notice of motion.
[4]
Those respondents who have opposed the application – the first
to fifth respondents
– have denied the allegations made by the
applicants. On the face of it, therefore, a dispute of fact has been
created. It
is necessary, at the outset, to consider the law relating
to disputes of fact in motion proceedings when final relief is
sought.
It will inform my dealing with the facts, and determine the
outcome of this matter.
Factual
disputes in motion proceedings
[5]
In
National
Director of Public Prosecutions v Zuma
[1]
Harms DP observed that motion proceedings were really designed for
the resolution of legal disputes based on common cause facts.
In most
applications, however, disputes of fact, whether minor or more
substantial, arise. As a result, rules have been developed
to
determine the facts upon which matters must be decided where disputes
of fact have arisen and the parties do not want a referral
to oral
evidence or trial.
[6]
The approach to disputes of fact when interim relief is sought
differs from that when
final relief is sought: in effect, the former
situation is the obverse of the latter situation.
[2]
In proceedings for final relief the approach to determining the facts
was authoritatively set out by Corbett JA in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
as follows:
‘
It is correct
that, where in proceedings on notice of motion disputes of fact have
arisen on the affidavits, a final order, whether
it be an interdict
or some other form of relief, may be granted if those facts averred
in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the Court
to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the denial
by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bona fide dispute of fact . . .
If in such a case the respondent
has not availed himself of his right to apply for the deponents
concerned to be called for cross-examination
under Rule 6(5)(g) of
the Uniform Rules of Court . . . and the Court is satisfied as to the
inherent credibility of the applicant's
factual averment, it may
proceed on the basis of the correctness thereof and include this fact
among those upon which it determines
whether the applicant is
entitled to the final relief which he seeks . . . Moreover, there may
be exceptions to this general rule,
as, for example, where the
allegations or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified
in rejecting them
merely on the papers . . .’
[7]
In other words, generally speaking, in motion proceedings in which
final relief is
sought, factual disputes are resolved on the papers
by way of an acceptance of those facts put up by an applicant that
are either
common cause or are not denied as well as those facts put
up by the respondent that are in dispute. I have said that this rule
applies ‘generally speaking’ because there are exceptions
to it, as already alluded to by Corbett JA. These are instances
where
despite denials by a respondent, no real, genuine or bona fide
dispute of fact can be said to have been created. Harms DP
said, in
National
Director of Public Prosecutions v Zuma
,
[4]
that the general rule may not apply ‘if the respondent’s
version consists of bald or uncreditworthy denials, raises
fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting
them merely on the
papers’.
[8]
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
[5]
considered this very issue. Heher JA dealt with how courts should
decide on the adequacy of a respondent’s denial in motion
proceedings for purposes of determining whether a real, genuine or
bona fide dispute of fact had been raised. He stated:
‘
[11] The first
task is accordingly to identify the facts of the alleged spoliation
on the basis of which the legal disputes are
to be decided. If one is
to take the respondents' answering affidavit at face value, the truth
about the preceding events lies
concealed behind insoluble disputes.
On that basis the appellant's application was bound to fail. Bozalek
J thought that the court
was justified in subjecting the apparent
disputes to closer scrutiny. When he did so he concluded that many of
the disputes were
not real, genuine or bona fide. For the reasons
which follow I respectfully agree with the learned judge.
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must, in the event of conflict, accept the version
set up by his opponent unless the latter's allegations
are, in the
opinion of the court, not such as to raise a real, genuine or bona
fide dispute of fact or are so far-fetched or clearly
untenable that
the court is justified in rejecting them merely on the papers . . .
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances
where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore
be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party
and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that the disputing
party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true
or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have difficulty in
finding that the
test is satisfied. I say “generally” because factual
averments seldom stand apart from a broader matrix
of circumstances
all of which needs to be borne in mind when arriving at a decision. A
litigant may not necessarily recognise or
understand the nuances of a
bare or general denial as against a real attempt to grapple with all
relevant factual allegations made
by the other party. But when he
signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and
will only in exceptional circumstances
be permitted to disavow them. There is thus a serious duty imposed
upon a legal adviser
who settles an answering affidavit to ascertain
and engage with facts which his client disputes and to reflect such
disputes fully
and accurately in the answering affidavit. If that
does not happen it should come as no surprise that the court takes a
robust
view of the matter.’
[9]
In
Naidoo
& another v Sunker & others
[6]
Heher JA held that what he had said in
Wightman
about the adequacy of allegations in answering affidavits for
purposes of the
Plascon-Evans
rule
‘applies with equal force to a respondent who endeavours to
raise a special defence’.
Background
[10]
The first applicant stated in her founding affidavit that in the
early 1990s, people began to
occupy land in what is now known as
Bhongweni Phase 1 of the Zimbane administrative area near Mthatha.
They did so with the blessing
of the traditional leader, Chief
Baleni, who is now deceased. The first applicant bought her first
plot in 1992 and built a home
on it. She stated that while she had no
written record of the purchase of the plot, she still lives there.
She claimed that she
had enjoyed undisturbed use and enjoyment of the
plot until recently. In 2008, she acquired a second plot from her
sister-in-law.
[11]
The plots in Bhongwani Phase 1 have not been properly sub-divided and
so plots have not been
registered in the Deeds Office. The area,
known as Erf 912, Mthatha, belongs to the King Sabata Dalindyebo
Local Municipality,
the seventh respondent. In proof of this fact,
which was denied by the first to fifth respondents, the first
applicant attached
a copy of the title deed. This constitutes
sufficient proof and displaces the bare denial raised by the
respondents.
[12]
The first applicant’s plots are adjacent to each other. The
plot she acquired in 2008 had
on it a two-roomed ‘half
structure with no roof, doors or fences’. Within four years of
acquiring the plot, the first
applicant fenced the property, erected
a gate and completed the building. She decided to let the property to
the fourth and fifth
applicants, together with their minor children,
and the sixth applicant.
[13]
The second applicant acquired a plot in Bhongweni Phase 1 in 1995.
She paid the local headman
R2 500, a case of beer, a case of
Coca Cola and a bottle of brandy for it. She built two structures on
it: a dwelling, where
she lived, and a shebeen. Both structures on
the plot were destroyed by a storm in 2004. In 1997, she moved
temporarily to Grahamstown.
When she returned in 2012, she found that
her property had been fenced by a Ms Thobakazi Joyini, who claimed to
have purchased
the plot from the second respondent. Despite this, in
May 2018, the second applicant began to build a two-roomed flat on
the property.
[14]
The third applicant acquired a plot in Bhongweni Phase 1 in 2017. She
moved into a three-roomed
house on the property where she then lived.
[15]
The first respondent is the local headman. Her late husband was
previously the headman for the
area in which Bhongweni Phase 1 falls.
On his death, the first respondent was appointed as regent to her
son. The second, third,
fourth and fifth respondents are members of a
committee formed by the first respondent. The sixth respondent, who
has not filed
any opposing papers, is described in the founding
papers as a ‘project manager performing various construction
projects under
the first respondent’s authority’.
[16]
All of the allegations concerning the respondents, save for the
allegation that the first respondent
is regent to her son, were
admitted in the answering affidavit. The allegation that is denied is
gainsaid by a letter attached
to the first applicant’s replying
affidavit. It is dated 15 August 2018 and is signed by the Head
of the Department
of Cooperative Governance and Traditional Affairs
in the provincial government. It was addressed to the first
respondent and confirmed
that she had been appointed as ‘the
regent inkosana/headman of Zimbane administrative area’ in May
2008. It gave her
notice of the review of her appointment as regent
and afforded her an opportunity to make representations as to why her
regency
should not be reviewed. This letter trumps the bare denial,
given by the second respondent on behalf of the first respondent,
that
she was appointed as regent to her son.
The
dispute
[17]
The first applicant alleged that since the first respondent was
appointed as acting headman (which
the first appellant erroneously
said was in 2011/2012), she ‘has gradually been taking land
from the people in the area of
Bhongweni, claiming that it belongs to
the Chiefdom’ and that she has ‘claimed various sites in
the area and has sold
them to rich buyers who use the land for
property development’. For what it is worth, the second
respondent, who deposed
to the answering affidavit, denied the
contents of this paragraph ‘vehemently’, adding the
meaningless phrase in motion
proceedings that is all too often
encountered, that the first applicant ‘is put to proof
thereof’. The basis of the
denial then follows: the first
respondent ‘came to power officially in 2008, not 2011/2012 as
stated herein’.
[18]
The first applicant then moved from the general to the specific. She
stated that in January 2018,
she received a message from a
sub-headman, a Mr Mkhohli, (whom I assume is the fifth respondent) to
inform her that she had to
vacate her house, and that her tenants
also had to leave her second property, because the land belonged to
the first respondent.
She contacted Mr Mkhohli who told her the
first respondent’s committee wanted the land. She refused
to vacate the properties.
[19]
In the following month she received a letter from the first
respondent ‘advising’
her to evict her tenants. She and
her tenants went to the first respondent’s great place where
they was told by the first
respondent and her committee that the site
(where her tenants live) belongs to the chiefdom. She said that she
had acquired the
site from her sister-in-law. (She no longer has the
letter as the committee members took it from her.)
[20]
The second respondent’s answer to these allegations is the
following.
‘
Contents
hereof are denied, first Applicant was officially called to first
Respondent’s place and after sometime she heed
that called
hence minutes annexed hereto marked “
O.N.4
” in
which first Applicant apologized under Duress but freely after
deliberations were made.’
[21]
The minutes referred to concern a meeting on 14 April 2018. Whether
this is the meeting referred
to by the first applicant is not clear.
It is not apparent that the second respondent was present in the
meeting. The minutes are
cryptic and difficult to comprehend.
[7]
If anything, however, they tend to support the first applicant’s
version. First, it is recorded in the minutes that she said
she had
received a telephone call from the fifth respondent who told her that
someone was interested in her site; and that her
children had had
told her of a letter from the great place saying that her tenants
were required to vacate the property they occupied.
Secondly, it is
recorded that the fourth respondent said that ‘the land is left
with the Great Place’ and that the
‘Great Place called
the meeting for all people from phase 1, it was explained to them
that they have nothing to do with this
land because they left it
behind’.
[22]
The first applicant proceeded to say that in March 2018, Mr Mkhanzi,
who I presume is the fourth
respondent and who she described as the
chairperson of the committee, told her to pay R10 000 to the
first respondent, as
ubusa
eNkosini
,
[8]
in order to keep the plot. She did not pay.
[23]
The second respondent’s answer to these allegations is this:
‘
Contents of this
paragraph are vehemently and emphatically denied as if specifically
traversed.
In amplification it would
be impossible for any person including Mr Mkhohli to claim payment
for
UBUSA ENKOSINI
as first Applicant was not a resident in
the area and the said “
UBUSA ENKOSINI
” is only
paid by person new in looking for a vacant plots/sites that have been
earmarked by the council.’
[24]
Tellingly, no specific denial on oath is made by the fourth
respondent and no version of what,
if anything, transpired is deposed
to by him. Whether the amount allegedly claimed was said to be
ubusa
eNkosini
or not, no specific denial had been made by anyone of
the demand for the payment of R10 000 in order for the first
applicant
to keep her plot. All that the denial really amounts to is
that the fifth respondent should not, in the circumstances, have
asked
for a payment for the purpose alleged. His confirmation of the
contents of the answering affidavit takes the matter no further.
[25]
The first applicant spent time in hospital in Johannesburg in June
2018. On her return, the fourth
applicant advised her that the
second, third and fourth respondents had told her to vacate the plot
where she, the fifth applicant,
their children and the sixth
applicant lived because it belonged to the chiefdom. She had refused
to do so. On 10 June 2018, however,
‘a contractor led by the
sixth respondent’ arrived at the site and began earthmoving
operations. The sixth respondent
informed the first applicant that he
had been ‘employed by the first respondent to build a project
for her’. (The first
applicant reported the matter to the
police but received no help.)
[26]
She continued to say that the sixth respondent busied himself
building a structure on the site.
Bricks, cement and sand was
off-loaded into the yard and work began on the erection of a wall
around the site, during which a water
pipe was damaged resulting in a
water outage to the house. A photograph of the site, depicting the
wall, was attached to the first
applicant’s founding affidavit.
The fourth, fifth and sixth applicants were threatened in order to
force them to vacate the
site, on the basis of the first respondent’s
claim that it belonged to the chiefdom. As the property was enclosed
by the
sixth respondent, and the gates were locked by him, their
freedom of movement was violated.
[27]
The sixth applicant continued with the work and, on 6 July 2018, he
barricaded the gate to the
site with concrete blocks, cut the fence
surrounding the property and destroyed the gate that had provided
access to the site.
The fourth, fifth and sixth applicants and the
children were unable to leave their home. When the first applicant
arrived she was
met with what she described as ‘incredible’
hostility from the contractors on site: she was told to leave as it
was
not her site and that they were working on the instructions of
the first respondent. Once again, she contacted the police but
received
no assistance. She approached the police again. A case was
registered but nothing was done.
[28]
Which regard to the allegation that the second, third and fourth
respondents ordered the fourth
applicant to vacate the plot, and that
the sixth respondent, on the instructions of the first respondent,
moved onto it and commenced
building operations, the second
respondent stated:
‘
Contents of this
paragraph are vehemently denied as if specifically traversed and
first Applicant is put to proof thereof.
Further that some of
the allegations in this paragraph are not with my personal knowledge,
consequently can neither deny not admit
same.’
[29]
The allegations against the sixth respondent are not denied as he has
not filed opposing papers.
(In addition, the third respondent did not
depose to a supporting affidavit, so the allegations made by the
second respondent in
respect of conduct attributed to the third
respondent constitutes inadmissible hearsay evidence. The second
respondent’s
answer to the allegations concerning the sixth
respondent’s work on the site is:
‘
Contents herein
are denied and first Applicant is put to proof thereof. First
Respondent have instructed no contractors as
she have no power or
authority to do so, save to note “
MBM2
” which
deponent does not know which house or yard it belonged or it was just
taken for the purpose of bolstering first Applicant’s
case
which is weak/or non-existent at all against all Respondents.’
[30]
In answer to the allegations that the fourth, fifth and sixth
applicants were threatened in order
to force them to vacate the site,
as the first respondent said it belonged to the chiefdom, and that
their right to freedom of
movement was violated, the second
respondent said:
‘
Contents herein
are denied first Respondent knows the procedure of dealing with her
subjects as it was done to first Applicant called
to first
Respondent’s place, minutes made and a decision is reached not
the way it is portrayed in this paragraph, first
Applicant is put to
proof thereof.
First Applicant’s
place is situated at Langa Street, Mxhwele Locality, in this regard
reference to her place is shown on these
photos annexed hereto
marked.’
‘
O.N.9’ to
the answering affidavit appears to be copies of two pages of Google
Maps, or something similar. It is not clear
what it depicts. It is
entirely meaningless. It is probably the unnamed annexure referred to
above.
[31]
In answer to the allegations that the sixth respondent closed off
access to the plot with concrete
blocks, prevented the fourth, fifth
and sixth applicants from leaving, displayed hostility towards the
first applicant and confirmed
that they worked on the instructions of
the first respondent, the second respondent said:
‘
Contents in these
paragraphs are not within my personal knowledge, consequently can
neither deny nor admit same and first Applicant
is put to proof
thereof.
In amplification, first
Respondent is just a headman who does not take decisions alone but
assisted by a council in which I am a
member, therefore the issue of
intimidation tactics uses people by first Respondent powerful
in the area is foreign to me,
clearly first Applicant does not know
first Respondent, a very sweet, dedicated and hard-working woman.’
[32]
The travails of the second and third applicants are similar to what
befell the first, fourth,
fifth and sixth applicants.
[33]
The second applicant was called to the first respondent’s
homestead on 13 May 2018 and
told by the first respondent that her
site no longer belongs to her, having been sold to Ms Joyini. On 26
May 2018, the second,
third and fourth respondents visited her site
(where building operations were in progress) and instructed the
workers to stop working,
telling them that, if they did not, blood
would be spilt. When the second applicant reported what had happened
to a Chief Sangoni,
he advised her to either go to the Magistrate’s
Court or to instruct an attorney. He told her that as the land
belonged to
the State, he had no authority over it.
[34]
On 18 June 2018 at about 13h00, the second and third respondents
arrived at the second applicant’s
property and destroyed what
had been built up to then: they broke the walls and destroyed
building materials.
[35]
In answer to these allegations, the second respondent said:
‘
All contents of
these paragraphs are vehemently and emphatically denied as if
specifically traversed.
In amplification of such
a denial, I did not sell any property to anybody first Applicant
ought to have submitted a receipt as proof
or a confirmatory
affidavit, no first Respondent’s committee in which I am a
member ever did what is alleged here, again
no proof but
BARE
allegations, unsubstantiated with any fact, no confirmatory
affidavit, Sangoni filed in these proceedings.
Other facts in these
paragraphs about Buyiswa approaching Legal Aid South Africa, Mthatha
and destruction of Buyiswa’s site
are vehemently denied again
no proof by first Applicants and other facts are not within my
personal knowledge consequently can
neither deny nor admit same and
first Applicant is put to proof thereof.’
[36]
In June 2018, when the second and fifth respondents saw the third
applicant on her property,
they asked her where her husband was. When
she told them he had died the previous year, they told her that her
land belonged to
the chiefdom and that if she wished to continue to
live there she would have to pay the first respondent R10 000 as
ukubusa eNkosini
. She did not do so.
[37]
In late June 2018, the second respondent advised the third
applicant’s mother that she
should tell her daughter to leave
her property, that a purchaser for the property was being sought and
that the third applicant
was being stubborn.
[38]
In the light of these facts and the third applicant’s knowledge
of what has happened to
the other applicants, she fears that the same
fate that befell them may befall her.
[39]
In answer to these allegations, the second respondent said:
‘
Contents
of these paragraphs emphatically and specifically denied as if
specifically traversed and first Applicant is put to proof
thereof.
In
amplification of such a denial, Lindiswa Mbiko bought a property/site
from first Applicant according to the records of headman’s
place of which I am a council committee member.
No
ukubusa was ever requested from her, no confirmatory affidavit
regarding that no second to fifth Respondent telling Lindiswa
land
belongs to chiefdom, it is hearsay and falley (sic) build by first
Applicant. I must mention clearly that at no stage
did I ever
say to Lindiswa, I am looking for a land belonging to Lindiswa and
that I ever say she was stubborn hearsay, unsubstantially
falley
(sic) by first Applicant.’
[40]
The first applicant, as I have said, obtained no help from the
police. She was represented by
an attorney for a while, but that
produced little in the way of legal protection. During the course of
July 2018, the first applicant
found her way to the Legal Resources
Centre (in Grahamstown) – the LRC. It was ascertained by her
new legal representatives
that the land did not belong to the
chiefdom but to the King Sabata Dalindyebo Local Municipality, with
the result that the respondents
had ‘no authority over the
property and cannot evict people, build on the properties, or
intimidate and threaten the occupants
of the properties’.
[41]
The allegations in relation to the second, third and fourth
applicants that are made in the first
applicant’s founding
affidavit are confirmed in supporting affidavits deposed to by those
applicants. No supporting affidavits
were deposed to by the fifth and
sixth applicants who live with the fourth applicant and whose
circumstances are identical to hers.
I am, in the
circumstances, prepared to accept that the public interest standing
claimed by the first applicant is sufficient to
justify the grant of
relief in respect of these applicant, if I conclude that a proper
case has been made out.
[42]
The seventh applicant is in a different position. He is mentioned in
one sentence in the founding
affidavit. Paragraph 10 stated
simply that the seventh applicant was ‘Mbambeleli Siwampi, an
adult male’. He
deposed to a supporting affidavit in which he
confirmed certain paragraphs of the founding affidavit that do not
mention him at
all. In these circumstances, his application
must fail, with costs. On the positive side for the seventh
applicant, the costs
will be limited to one sentence in the founding
affidavit, a four paragraph supporting affidavit and nothing in
respect of the
answering affidavit because it purports to answer an
11 paragraph affidavit that is not part of the papers.
Conclusion
[43]
I have cited fully and verbatim the second respondent’s answers
to the relevant allegations
made by the first, second, third and
fourth applicants. The first, fourth and fifth respondents deposed to
supporting affidavits
in which they confirmed the contents of the
second respondent’s answering affidavit in relation to them.
[44]
In the first respondent’s affidavit, she said that she had read
the affidavit of the second
respondent and confirmed that ‘all
what he said is true in relation to me and my subjects’. No
confirming affidavit
was deposed to by the third respondent.
[45]
The allegations made in respect of the sixth respondent could not be
disputed by the second respondent
and have not been disputed by the
sixth respondent because he has not opposed the application. The
allegations against him are
thus not disputed.
[46]
What of the denials contained in the answering affidavit of the
second respondent? I am of the
view that, for the reasons that
follow, no real, genuine or bona fide dispute of fact has been
created by them.
[47]
It cannot be said that the second respondent ‘seriously and
unambiguously addressed’
the facts in dispute.
[9]
One would have expected an engagement with the material facts deposed
to by the first applicant. Instead, the second respondent
resorted
ritualistically to meaningless statements that the facts alleged were
‘vehemently’ or even ‘vehemently
and emphatically’
denied ‘as if specifically traversed’ and that the first
applicant was ‘put to proof
thereof’.
[48]
Furthermore, in instances in which allegations were made against the
first respondent –
the central figure in this case – the
denials made by the second respondent were anything but unambiguous.
In instances in
which the facts must have fallen within the specific
knowledge of the first respondent, her confirmation of the vague and
unspecific
allegations of the second respondent did not succeed in
creating as real, genuine or bona fide dispute of fact.
[49]
I shall set out examples of the difficulties I have with the
respondents’ answers to the
allegations against them. First,
when the first applicant made serious allegations that the first
respondent had been taking land
from residents of Bhongweni phase 1
and selling that land, the only fact that was denied was that the
first respondent was appointed
as (acting) headman in ‘2011/2012’
(rather than in 2008). There was no engagement with the material
facts.
[50]
Secondly, as I have stated, it does not appear from the minutes of
the meeting at the great place
that the second respondent was
present, and he did not allege that he was. I would have expected the
first respondent to have taken
the court into her confidence, and to
have explained clearly and unambiguously why the meeting took place,
what the letter sent
to the first applicant said and what the outcome
of the meeting was. The second respondent’s apparently hearsay
version is
so vague that little sense can be made of it. What
precisely the first applicant apologised for is not explained and how
she did
so ‘under Duress but freely’ is baffling.
Instead, I was left to try to make sense of cryptic minutes, the
relevance
of which was never explained, and to do so with little or
no background. All of this can hardly be said to have been a serious
and unambiguous engagement with the disputed facts.
[51]
Thirdly, the first applicant stated that she had been told by the
sixth respondent, when he invaded
her property, that he had been
employed by the first respondent to do so. This allegation, according
to the first applicant, was
repeated by the sixth respondent on a few
occasions. These and the allegations that the second, third and
fourth respondents ordered
the fourth applicant to vacate the plot
where she lived were met with a bare, albeit ‘vehement’,
denial: the second
respondent said that these facts were not within
his personal knowledge. Consequently, the second applicant has not
denied the
allegations properly and, given the terms of the
supporting affidavits of the first and fourth respondents, these
facts stand undisputed.
In addition, as no opposing papers were filed
on behalf of the sixth respondent, there is no denial, whether
adequate or inadequate,
of the conduct attributed to him, as well as
his statement that he was acting on the instructions of the first
respondent.
[52]
Fourthly, the second respondent’s statement that the first
respondent ‘instructed
no contractors’ does not appear to
be within his personal knowledge. It is also ambivalent in the sense
that it is based
on the assertion that the first respondent would not
have done such a thing because she had ‘no power or authority
to do
so’. I would have expected the first respondent, and not
her mouthpiece, to have engaged seriously and unambiguously with
these allegations, especially if their import is that the first
respondent was guilty of gross abuses of her power.
[53]
Fifthly, in dealing with the allegations that the fourth, fifth and
sixth applicants were threatened
to force them to vacate their home,
as the first respondent had claimed that it belonged to the chiefdom,
the second respondent’s
denial again fell far short of what is
required to create a real, genuine or bona fide dispute of fact: all
he said, and all the
first respondent confirmed, was that the first
respondent ‘knows the procedure of dealing with her subjects’.
[54]
Finally, in answer to the facts that the sixth respondent closed off
access to the fourth, fifth
and sixth applicant’s plot and the
allegation that he confirmed once again that he worked for the first
respondent, the second
respondent’s denial again left much to
be desired. In effect, he said that he had no personal knowledge of
these allegations,
that the first respondent takes decisions with her
council and that the first applicant obviously does not know the
first respondent
who, I read in, would not intimidate people because
she is a ‘very sweet, dedicated and hard-working woman’.
[55]
I am satisfied of the inherent credibility of the applicants’
version, bolstered as it
is by the fact that the conduct attributed
to the sixth respondent, and the uterances attributed to him, stand
undisputed. For
the reasons I have given, the denials of the second
respondent, together with the supporting affidavits of the first,
fourth and
fifth respondents are woefully inadequate. Indeed, so
inadequate are they that they fail to create a real, genuine or bona
fide
dispute of fact. In the result, I accept the facts alleged by
the applicants.
[56]
Those facts establish the elements of a final interdict in respect of
the first, second, third,
fourth, fifth and sixth applicants. The
seventh applicant’s application must fail for the reasons I
have cited in paragraph
42.
The
order
[57]
A final order in the following terms is issued.
1
The first, second, third, fourth, fifth and sixth respondents (the
respondents) are interdicted and restrained
from intimidating,
threatening and evicting from their home or plots in Bhongweni Phase
1, Zimbane Administrative Area, Mthatha
the first, second, third,
fourth, fifth and sixth applicants (the applicants).
2
The respondents are interdicted and restrained from preventing the
applicants
from access to their homes or plots in Bhongweni Phase 1,
Zimbane Administrative Area, Mthatha.
3
The respondents are directed to forthwith restore undisturbed
possession
to the applicants of their homes or plots in Bhongweni
Phase 1, Zimbane Administrative Area, Mthatha.
4
The respondents are directed to pay the applicants’ costs of
this
application.
5
The application of the seventh applicant is dismissed with costs.
___________________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicants:
L Sambudla and Y S Ntloko
Instructed by:
Potelwa Attorneys,
Mthatha
Legal Resources Centre,
Grahamstown
For
the respondents:
T R Qina
Instructed by:
T Qina & Sons,
Mthatha
[1]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
[2]
As to the former, see for example,
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189;
Gool
v Minister of Justice & another
1955
(2) SA 682
(C) at 688C-F;
Spur
Steak Ranches Ltd & others v Saddles Steak Ranch, Claremont &
another
1996 (3) SA 706
(C) at 714E-F.
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635C.
[4]
Note 1 para 26. See too
Plascon-Evans
(note 3) at 634I-635D.
[5]
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 11-13.
[6]
Naidoo
& another v Sunker & others
[2011] ZASCA 216
para 23.
[7]
I am indebted to Ms Norma Ntliziyana, researcher in the Eastern Cape
High Court, Grahamstown for translating the minutes from
isiXhosa to
English.
[8]
As I understand the position,
ubusa
eNkosini
is an unsolicited gift given by a subject to a traditional leader,
with no strings attached, as a sign of respect and allegiance.
[9]
Wightman
(note 5) para 13.