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[2018] ZAGPPHC 770
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Tlokwe Local Municipality v Gqweta and Others (34243/2016) [2018] ZAGPPHC 770 (13 February 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA,
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 34243/2016
13/2/2018
In
the matter between:-
THE
TLOKWE LOCAL MUNICIPALITY
Applicant
and
NDUMISO
GQWETA
First Respondent
THE
NATIONAL COUNCIL OF SOCIETIES FOR THE
PREVENTION
OF CRUlLTY TO ANIMALS (NPC)
Second
Respondent
POTCHEFSTROOM
ANIMAL WEALTHFARE SOCIETY
(NPO)
Third Respondent
JUDGMENT
CRUTCHFIELD
AJ:
[1]
The applicant claimed the removal of the first respondent's
livestock, all of which
was identifiable, from the applicant's
immovable property described as Portion 7 of the farm Eleazer 377
I.P. ('the farm').
[2]
In addition, the applicant claimed
orders interdicting the first respondent from:
2.1
Conducting any farming activities on the
farm;
2.2
Entering upon the farm without the
applicant's prior written consent.
[3]
The first respondent opposed the relief
sought by the applicant. The second and third respondents did not
participate in the hearing.
[4]
The common cause facts were the
following:
4.1
The
.applicant operated an economic development programme ('the
programme'), that served to assist small scale farmers who were
indigent and residing within the area of the applicant's municipal
boundaries.
4.2
Certain
requirements had to be met by farmers in order to qualify for
assistance under the programme, including that the farmer
was a
small- scale farmer, indigent and residing within the municipal area
of the Tlokwe Municipality.
4.3
Once
a farmer qualified for assistance, the future relationship between
the applicant and the farmer was regulated in terms of a
lease
agreement , termed a 'temporary lease agreement '.
4.4
The
applicant and the first respondent's concluded a temporary lease
agreement dated 18 March 2012 ('the agreement'), pending finalisation
of the lease documents.
4.5
In
terms of the agreement , the first respondent was:
4.5.1
Granted permission to graze
twenty four (24) head of cattle, reflecting a particular brand
marking, on to the farm; and
4.5.2
Required, in the event of a
change in the number of cattle, to submit the agreement to the
applicant in order that it might give
effect to the change.
4.6
On
27 September 2012, the first respondent was granted permission to
remove ten (10) head of his cattle from the farm.
[5]
During December 2012 or thereabouts, the applicant withdrew the first
respondent's
permission to graze cattle on the farm.
[6]
The first respondent was unable to
remove his remaining cattle from the farm immediately and, the
applicant agreed to him doing
so over a reasonable period of time,
being:
6.1
Eight (8) head of cattle on 4
April 2014; and
6.2
Nine (9) head of cattle on 9
January 2015,
[7]
Thus, the first respondent ought to have
removed all of his cattle from the farm by 9 January 2015.
[8]
Notwithstanding, the first respondent
denied in his answering affidavit in the present application as well
as the previous application
(which the applicant withdrew}, that the
withdrawal of his permission to graze his livestock was valid, and
that it amounted to
a valid termination of the agreement.
[9]
As at 6 November 2015, however, the
first respondent's livestock on the farm numbered one hundred and
thirty two (132) head of cattle
and eighty (80) head of sheep, a
total of two hundred and twelve (212) livestock.
[10]
On 18 November 2015, the applicant
addressed correspondence to the first respondent, in terms of which
it informed the first respondent
that it had cancelled the agreement
, alternatively cancelled the agreement in terms of the
correspondence, demanded that the first
respondent remove his
livestock within seven (7) days, and reiterated that the first
respondent did not have permission to introduce
further livestock on
to the farm.
[11]
No response was forthcoming from the
first respondent and the applicant launched this application.
[12]
Whether the first respondent lived
within the boundaries of Tlokwe or not, or, qualified for assistance
under the programme were
disputed by the first respondent.
[13]
The applicant argued that the agreement
had been validly terminated, alternatively that the first respondent
had breached the agreement
by introducing vastly more livestock on to
the farm than he was permitted to under the agreement.
[14]
At the hearing, the applicant undertook
to allow the first respondent a reasonable period in which to remove
his livestock from
the farm in the event that the court granted an
order that he do so.
[15]
The first respondent denied that the
applicant was entitled in law to cancel the agreement (or, phrased
differently, withdraw the
permission to graze}, based on the alleged
material breach, and, due to the absence of procedural fairness.
[16]
The first respondent. did not deny that
the provision of the agreement as to the number of livestock the
first respondent was permitted
to graze on the farm was a material
term.
[17]
Nor did the first respondent dispute the
count of his livestock as at November 2015. Furthermore, the first
respondent did not deny
that there was no basis for his sheep to
graze on the farm.
[18]
The first respondent attempted to
justify the number of his cattle on the farm on the basis that the
provision in the agreement
that the applicant give effect to any
change in the number of livestock , permitted him to introduce as
many cattle as he wished
to.
[19]
The first respondent’s contention,
if accepted, would have resulted potentially in a situation in which
a few farmers utilised
all the applicant's available grazing whilst
the majority of the indigent small scale farmers that the programme
was intended to
assist, were denied access to grazing as a result.
That would have amounted to a wholly unfair and arbitrary use by the
applicant
of its available grazing resource, undermined the very
purpose of the programme and prejudiced some of the most vulnerable
people
in our society.
[20]
The provision relied upon by the first
respondent, in my view, served to permit an increase or decrease in
the livestock in the
event of the birth of offspring or the death of
any livestock.
[21]
Thus, the first respondent's argument
that he was entitled to introduce as many cattle on the farm as he
wished to, was without
merit. The first respondent 's unilateral
increase of his livestock on the farm as at November 2015, amounted
to a breach of a
material term of the agreement and entitled the
applicant in law to cancel the contract.
[22]
As to the fairness of the cancellation
procedure, the first respondent's primary ground of opposition was
that the applicant's termination
of the agreement qualified as
administrative action, and, that the applicant had not afforded the
first respondent a right to a
fair hearing in respect of the decision
to terminate the agreement. That, according to the first respondent ,
served to render
the cancellation irregular, unfair and invalid. The
first respondent relied on the minority judgment in
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC
[1]
and Sokhela
&
Others
v MEG for Agriculture and Environmental Affairs (Kwa zulu-Natal)
&
Others.
[2]
[23]
Grey's Marine
Hout Bay (Pty) Ltd v Minister of Public Works
[3]
did not assist
the first respondent as it dealt with the granting of a lease, (which
was found to constitute administrative action),
not the termination
thereof. Thus,
Grey's
was not
applicable to the facts at hand.
[24]
In the light of the significant increase in the first respondent's
livestock on the farm, the
applicant argued that the court could
ignore the disputes as to the first respondent's place of residence
and his indigence or
otherwise , and find that the agreement had been
validly cancelled pursuant to the first respondent's material breach
thereof.
[25]
The applicant denied that the cancellation of the agreement
constituted administrative action.
The applicant argued that it
invoked the common law principles of contract law pursuant to which
the first respondent was not entitled
to procedural fairness in
respect of the cancellation.
[26]
The applicant conceded that it was an organ of state and exercised a
public power in concluding
the agreement with the first respondent
under the programme.
[27]
The applicant relied upon the line of authority commencing with
Cape
Metropol
to the effect that the cancellation of a contract
between a public body and a private firm was not administrative
action.
[28]
The applicant argued that once the parties concluded the agreement
their relationship was regulated
thereafter by the agreement and the
principles of contract law, and that the applicant's contractual
rights could be exercised
without regard for the principles of
administrative justice.
[29]
In
Logbro
[4]
the court stated
that
Cape
Metropol:
'[9]
. .. did not purport to provide a general answer to the question
whether a public authority
in exercising powers derived from the
contract is in all circumstances subject to a public duty to act
fairly. That question was
left open. Instead, the Court's judgment
makes it plain that the outset depends on all the circumstances. ...
[10] (Cape
Metropol) is thus not authority for the general proposition that a
public authority empowered
by statute to contract may exercise its
contractual powers without regard to public duties of fairness. On
the contrary: the case
establishes the proposition that a public
authority’s invocation of a power of cancellation in a contract
concluded on equal
terms with a major commercial undertaking, without
any element of superiority or authority deriving from its public
position, does
not amount to an exercise of public power.'
[30]
The applicant referred to
Government
of the Republic of South Africa v Thabiso Chemicals (PTY) LTD
[5]
in which the
SCA, relying inter alia on
Cape
Metropol
[6]
and
Steenkamp,
[7]
dealt with the
role of the principles of administrative law upon a contractual
relationship between the parties.
[31]
Steenkamp
[8]
referred to
Logbro
in
stating that 'Once the tender is awarded, the relationship of the
parties is that of ordinary contracting parties, although in
particular circumstances the requirements of administrative justice
may have an impact on the contractual relationship.'
[32]
The issue in
Thabiso
was whether the cancellation process was
procedurally fair and whether an opportunity to address the relevant
authority in accordance
with the
audi alteram partem
rule
prior to cancellation of the tender, ought to have been allowed. The
SCA determined unequivocally that the principles of administrative
law did not play any part in the cancellation of the tender.
[33]
The court in
Thabiso
,
however, did not refer to
Logbro
or to the parties' respective
bargaining power.
[34]
In
Cape
Metropol,
the SCA relied inter alia
upon the absence of any disparity in the parties' respective
bargaining positions. Not only was the first
respondent 'a very
substantial commercial undertaking' but the public body '... did not,
by virtue of it being a public authority,
find itself in a stronger
position than the position it would have been in had it been a
private institution.'
[9]
[35]
Furthermore, other than Steenkamp, the
cases abovementioned dealt in the main with public authorities on the
one hand and corporate
entities of some description on the other, not
with an agreement between a public authority and a natural person.
[36]
It follows from
Logbro
that whether or
not the applicant was entitled to exercise its contractual power
without regard for public duties of fairness depends
on all the
circumstances
[10]
.
[37]
Whether or not the applicant's act of cancellation constituted
administrative action turns on
'the nature of the power
exercised'.
[11]
[38]
Additional factors that might be relevant in determining the nature
of the function included
the source of the power exercised by the
applicant, the subject-matter, whether or not it involved the
exercise of a public duty
and how closely related it was to the
implementation of legislation.
[12]
[39]
The agreement was silent in respect of
grounds justifying its cancellation and the method of its
termination. Hence, the applicant
sourced its alleged entitlement to
cancel in the common law of contract, cancelling the agreement
unilaterally pursuant to the
first respondent’s material breach
thereof.
[40]
Accordingly, the nature of the power
exercised by the applicant was a common law contractual power and not
one that was sourced
in legislation.
[41]
Given that the applicant derived its
entitlement to cancel the agreement from the common law, the
cancellation process was not imposed
by the applicant upon the first
respondent pursuant to the applicant being a public authority.
[42]
The common law power of cancellation
upon a material breach of a contract was equally available to a
natural person leasing a farm
to the first respondent on the same
terms as applied in this matter, as it was to the applicant.
[43]
As a result, the applicant was not
acting from a stronger position by virtue of it being a public body,
when it cancelled the agreement.
[44]
Accordingly, the applicant was
exercising its common law contractual right to cancel the agreement
in the face of the first respondent's
material breach thereof.
[45]
It follows that the applicant was not
exercising a public power when it cancelled the agreement and was not
burdened with duties
of public fairness in terms of administrative
law.
[46]
The parties did not refer to the
principles articulated in
Barkhuizen
v Napier.
[13]
[47]
As regards the applicant's claim for an
interdict ordering the first respondent to remove his livestock
failing which that the Sheriff
be authorised to do so, the first
respondent denied that he had infringed upon the applicant's rights,
denied that there was prejudice
to the applicant and that the
applicant was entitled to the interdictory relief sought.
[48]
The first respondent's unilateral
increase of his livestock on the applicant 's farm comprised an
infringement of the applicant's
rights as well as those of the
emerging farmers in respect of whom the programme was aimed by the
applicant, fourteen (14) of whom
were already receiving assistance.
[49]
The first respondent's conduct adversely
impacted the applicant's ability to deliver resources, and prejudiced
existing and potential
farmers entitled to assistance from the
applicant, by unlawfully accessing a greater portion of the available
resources than he
was entitled to.
[50]
Whilst the applicant is entitled to the
interdictory relief sought by it in the application, the first
respondent should be allowed
a reasonable period of time to remove
his livestock from the farm. The period of one month submitted by the
applicant was insufficient.
[51]
The first respondent did not furnish any
facts as to possible prejudice to him in the event of an order that
he remove his livestock.
[52]
As at November 2015, the first
respondent was grazing in excess of 200 head of livestock on the
farm. I was not furnished with the
current updated count but it is
possible that the number has increased in the interim with the
arrival of offspring. The process
of relocation must meet the
applicant's need to access the grazing to be made available by the
removal of the first respondent’s
livestock as soon as
possible, whilst simultaneously ensuring that the first respondent's
farming operation is not prejudiced.
A period of six months for the
removal of the livestock on a reducing basis over the period, appears
to be fair.
[53]
In the circumstances , the first respondent must remove the entirety
of his livestock from the
farm within a period of six (6) months
commencing with effect from 1 April 2018. The first respondent must
remove not less than
forty (40) head of livestock per month on or
before the first (1
st
) day of each consecutive month
commencing with effect from 1 April 2018.
[54]
The date of 1 April 2018 should allow the first respondent sufficient
time to make the necessary
arrangements for an alternate location and
transport for the livestock.
[55]
The parties were agreed that the costs
should follow the merits. Neither party in this matter has entirely
clean hands and I intend
to make an order on a party and party scale.
[56]
In the circumstances, I grant the following order:
1.
The first respondent is ordered to
remove:
1.1.
All
of his cattle (marked with orange ear-markers and brandmark "Q N
G"); and
1.2.
All
of his sheep (marked with orange ear-markers);
('the livestock')
from the applicant's immovable
property described as Portion 7 of the farm Eleazer 377 I.P. ('the
applicant's immovable property'),
within a period of six (6) months
commencing with effect from 1 April 2018.
2.
The
first respondent must effect the removal of the livestock by removing
not less than forty (40) of the livestock per month on
or before the
first (15 T ) day of each consecutive month commencing with effect
from 1 April 2018.
3.
In
the event that the first respondent fails to comply with the orders
in paragraphs 1 and 2 above, the Sheriff of this Court is
authorised
to remove the livestock from the applicant's immovable property and
to deliver the livestock to the first respondent.
4.
In
the event that the Sheriff of this Court, is unable to deliver the
livestock to the first respondent after their removal from
the
applicant's immovable property, the Sheriff is authorised to deliver
the livestock to the National Council of Societies for
the Prevention
of Cruelty to Animals ('NPC') in which event the second respondent is
authorised to deal with the livestock at its
discretion.
5.
Subsequent
to compliance by the first respondent with the orders in paragraphs 1
and 2 above, alternatively compliance by the Sheriff
with the order
in paragraph 3, alternatively paragraph 4 above, the first respondent
is interdicted from:
5.1.
Conducting
any farming activities on the applicant's immovable property; and
5.2.
Entering
the applicant's immovable property without the applicant's prior
written consent.
6.
The first respondent is ordered to pay
the costs of the application.
A
A CRUTCHFIELD
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
COUNSEL FOR
APPLICANT
Mr J E Kruger
INSTRUCTED
BY
Willem Coetzee Attorneys
COUNSEL
FOR FIRST RESPONDENT
Mr S Mngomezulu
INSTRUCTED
BY
Masilela Attorneys
DATE
OF HEARING
9 October 2017.
DATE
OF JUDGMENT
2 February 2018.
[1]
Cape Metropolitan Council v Metro Inspection Services (Western
Cape)
CC
2001 (3) SA 1013
(SCA)
(' Cape Metropol').
[2]
Sokhela
&
Others v MEG for Agriculture and
Environmental Affairs (Kwazulu -Natal)
&
Others
2010
(5) SA 574
(KZP)
('Sokhela' ).
[3]
Grey's Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA)
(' Grey's’)
[4]
Logbro Properties
CC
v Bedderson NO
2003 (2) SA 460
(SCA)
('Logbro')
paras 9 and 10.
[5]
[2008] ZASCA 112
;
2009 (1) SA 163
(SCA)
('Thabiso}
[6]
Cape Metropol
above n 1 para 18.
[7]
Steenkamp NO v Provincial Tender Board, Eastern Cape
2006 (3)
SA 151
(SCA) paras 11 and 12.
[8]
Id.
[9]
Cape Metro
above n 1 para 18.
[10]
Logbro
above n 4 paras 9 and 10.
[11]
Cape Metropol
above note 1 para 17;
President of the
Republic of South Africa
&
Others v South African Rugby
Football Union
&
Others
2000 (1) SA 1
(CC) para 141
('
SARFU' ).
[12]
Cape Metropol
above note 1 para 17.
[13]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC).