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[2018] ZANCHC 15
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Regional Land Claims Commissioner Free State and Northern Cape and Others v Pniel Communal Property Association (1149/2006) [2018] ZANCHC 15 (2 March 2018)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTHERN CAPE
PROVINCIAL DIVISION, KIMBERLEY)
CASE NO:
1149/2006
DATE
HEARD:
1 December 2017
DATE
DELIVERED:
2 March 2018
In the matter
between :
THE REGIONAL LAND
CLAIMS COMMISSIONER
FREE STATE AND
NORTHERN
CAPE
First Applicant
AND 26 OTHERS
- and -
THE
PNIEL COMMUNAL PROPERTY ASSOCIATION
(LADCOM
OF
ASSOCIATION)
Respondent
Coram:
Lever AJ
JUDGMENT
LEVER AJ
1. The
second to twenty-seventh applicants in this case seek leave to
intervene
and to be joined as parties to case number 1149/2006. The
application which they seek to join was launched by the Regional Land
Claims Commissioner, Free State and Northern Cape (hereinafter
"the
first applicant")
on the 26 September 2006 under the above
case number
("the main application" ).
2.
In
the main application, the first applicant sought to have the Pniel
Communal Property Association (the
"CPA")
placed
under his, alternatively, the Chief Land Claims Commissioner's
administration under the provisions of s13 of the
COMMUNAL
PROPERTY ASSOCIATIONS ACT
[1]
(the
"CPA
Act").
It
appears that one of the underlying reasons for the main application
was to investigate whether a joint venture involving the
land
committee (LADCOM) of the CPA and certain others to obtain a mining
right to mine diamonds on the CPA land was in the best
interests of
the CPA.
3. As
can be seen from the case number, the matter has a long history. An
order
was made by Molwantwa AJ on the 6 October 2006. In such order,
provision was made for the filing of papers and further process.
However, it also contained the following order:
"4.
THAT the respondent's LADCOM will not enter into any further
agreements
or implement those already concluded in relation to the
Farm Pniel Estate no. 281 Barkly West:-
(a)
Pending finalisation of this matter in the Court of
first instance
or
(b)
Until the matter is settled
or
(c)
Without giving the applicant, by service of written
notice on the offices of the applicant's Kimberley attorney of record
21 (twenty
one) Court days' notice of its intention to either
entering into an agreement (in which event a copy of the said
agreement must
be annexed to the said notice) or implementing an
existing agreement (in which event a copy of the said agreement must
be annexed
to the said notice).
5.
…”
4. Thereafter
an order was made by consent on the 27 March 2007 by Majiedt J,
as he
then was. In terms of this consent order, the matter was postponed
sine die.
Further, a referee was appointed to determine
whether the joint venture to mine diamonds was imprudent to a
material degree when
measured against certain stated criteria. The
referee was also to consider whether Mr Cornelius Solomons had
acquired shares in
Rushtail 31 (Pty) Ltd (whether on behalf of the
Pniel community or not) prior to November 2005. Also, the referee was
to consider
if the joint venture could be re-negotiated to the extent
that he considered it to be imprudent or whether such agreement
should
be cancelled or set aside. In terms of the said order, the
referee's report was to be purely advisory and a deadline was set for
the submission of such report.
5.
The
said order further established certain negotiating committees to
establish the rights of claimants under the
EXTENSION
OF SECURITY OF TENURE ACT
[2]
("ESTA")
and
other residents on the Pniel property. The said order incorporated by
reference orders 4 and 5 of the interim order granted
by Molwantwa AJ
on the 6 October 2006. The portion of the order granted by Molwantwa
AJ relevant to the present application has
already been quoted above.
6. Then
on 2 December 2016 under case number 1037/2016 I made an order
that
included the following:
"1.
That the matter is postponed sine die to enable the 3rd and 4th
Respondents
to purge their default of the consent order granted in
case 1149/16 (this is obviously an error in the typed order and the
correct
case number should be 1149/06) on 27 March 2007."
7. The
third and fourth respondents in case number 1037/16 were the LADCOM
of the Pniel CPA and Rushtail 31 (Pty) Ltd
("Rushtail"),
respectively.
8.
The
respondent in the instant case, being the Pniel CPA, has raised
certain points
in
limine.
The
principle points
in
limine
argued
before me were: None of the second to twenty-seventh applicants have
established the necessary
locus
standi
to
be joined as a party to the main application; the proceedings are
either premature or wrongly brought in that second to twenty-seventh
applicants must first be joined as parties before the relief sought
in prayers 4, 5, 6 and 7 of the Notice of Motion dated 27 July
2017
can be sought; the internal remedies available under the
MINERAL
AND PETROLEUM RESOURCES DEVELOPMENT ACT
[3]
(the
"MPRDA")
have
not been exhausted; and there has been a material non joinder of
Rushtail in case number 1149/06, having regard to the
relief that the
second to twenty-seventh applicants now seek.
9. As
set out above the nature of the relief claimed in the main
application
was to place the CPA under administration. In order to
determine the points
in limine
referred to above, it is
necessary to set out the relief second to twenty-seventh applicants
seek in the present application. For
this reason, I set out the
material portions of the relevant Notice of Motion:
"KINDLY
THAKE NOTICE THAT applicant's no 2 to 27, also reflected in case no.
1037/16, will apply to the above Honourable Court
on the 18 August
2017 for an order in the following terms:
1.
That
they be joined as parties in the above matter, case no. 1149/06, as
Applicant's no. 2 to 27.
2.
The
existing applicant number 1 (the Regional Land Claims Commissioner
Free State and Northern Cape) as well as the existing Respondent
(the
Pniel Communal Property Association through its Ladcom) be ordered to
abide by the consent Order of the Court of the 27 March
2007, as well
as paragraphs 4 and 5 of the Judgment of
6
October 2006, also
annexed hereto.
3.
That
the respondent, the Pniel Communal Property Association, (through its
Ladcom) be ordered to purge their default of the consent
order in
case 1149/06 before 31 August 2017 in compliance with par. 1 of the
Court Order of
2
December 2016 in case 1037/16, annexed hereby
(sic).
4.
That
the Honourable Court accepts the report of the appointed referee, Mr
Mtembu, annexed hereto as Annexure RA4(1) to RA4(30).
5.
That
the Honourable Court grants the Referee the power to proceed with his
investigations of the matter up and until completion
of his final
report and the Honourable Court then releases him from further
investigations and/or reporting in terms of his appointed
mandate.
6.
That,
in view of the existing report of the referee (Annexure RA4) no
further mining activities shall be conducted unto (sic) the
said
Pniel Estate up and until a final recommendation of the said referee
to the Honourable Court and the resultant order of the
Court.
7.
That
copies of the order of the Honourable Court also be served onto (sic)
all the parties mentioned in Case no. 1037/2016.
8.
Leave
be granted to any party to put the matter on the roll once the final
report of the referee becomes available.
9.
The
Court grants permission that, for the purposes of the prayers
requested herein, case 1037/16 be read herewith.
10.
Further
and/or alternative relief.
11.
Costs
in the application to be awarded should any party oppose the
application."
10. The
question of whether the second to twenty-seventh applicants have the
requisite
locus standi
to be joined as applicants is not only
a point
in limine
but is in large measure the substance of the
application presently before this Court.
11. In
considering such question, it must be remembered that the first
applicant, being
the Regional Land Claims Commissioner Free State and
Northern Cape, sought to have the CPA placed under administration in
terms
of the provisions of s13 of the CPA Act. Thereafter an order
was taken by consent referring certain questions to a referee as
summarised
above.
12. In
considering whether the second to twenty-seventh applicants have the
necessary
locus standi
to intervene and be joined as
applicants to the main application, it is necessary to consider Rule
12 of the Uniform Rules of Court
("the Rules"),
which
governs the procedure. Rule 12 of the Rules reads as follows:
"Any person
entitled to join as a plaintiff or liable to be joined as a defendant
in any action may, on notice to all parties,
at any stage of the
proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application
make such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem
meet.
"
13. Although
the wording of Rule 12 clearly shows that such rule is applicable to
actions,
the provisions of Rule 6(14) of the Rules make Rule 12
applicable to applications brought under motion proceedings as well.
14. The
provisions of Rule 12 provide that only such persons as are entitled
to be joined
as a plaintiff or as are liable to be joined as a
defendant may apply for leave to intervene.
15.
The
law relating to what must be set out in order to make out a case to
intervene was restated and set out by White J in the case
of MINISTER
OF LOCAL GOVERNMENT AND LAND TENURE AND ANOTHER v SIZWE DEVELOPMENT
AND OTHERS: IN RE SIZWE DEVELOPMENT v FLAGSTAFF
MUNICIPALITY
[4]
,
as follows:
“
The
undermentioned principles apply to an application in terms of Rule
12, or the common law, for leave to intervene.
(a)
The applicant must satisfy the Court that:
(i)
he has a direct and substantial interest in the subject-matter
of the litigation, which would be prejudiced by the judgment of the
Court (references omitted);
(ii)
the application is made seriously and is not frivolous, and
that the allegations made by the applicant constitute a prima facie
case or defence
-
it is not necessary for the applicant to
satisfy the Court that he will succeed in his case or defence
(references omitted);
(b)
A 'direct and substantial interest' means '...an
interest in the right which is the subject matter of the litigation
and
...
not merely a financial interest which is only an
indirect interest in such litigation (references omitted).
(c)
…”
[5]
16.
It is common cause that the object of the main application in case
number 1149/06 was to
place the Pniel CPA under administration.
However, this is not the end of the matter, the order taken by
consent on the 27 March
2007 at the very least extended the scope and
subject matter of the main application. This is so because the
original parties to
case number 1149/06 and the Court that made the
order on the 27 March 2007 must have contemplated that either the
recommendations
of the referee would be implemented or that the Court
determining the matter after the final referee's report had been
submitted
would make any order competent under the consent order of
the 27 March 2007 .
17. The
consent order appears, at least in part to have superseded the
initial relief claimed
in the Notice of Motion under case number
1149/06. In this context the second to twenty-seventh applicants must
show a direct and
substantial interest in some aspect of the consent
order taken on the 27 March 2007. Clearly, on the facts set out by
them on the
papers, the second to twenty-seventh applicants would
have no direct and substantial interest in the placing of the Pniel
CPA under
administration.
18. The
grounds upon which the second to twenty-seventh applicants seek to
rely,
such as they are, have nothing to do with placing the CPA under
the administration of the first applicant.
19. What
then needs to be considered is whether such grounds can be classified
as
a direct and substantial interest in what was contemplated by the
consent order of the 27 March 2007.
20.
What
is contemplated by the term
'direct
and substantial interest'
is
that it is a legal interest in the subject matter of the application
in the sense that they may be prejudicially affected by
the judgment
of the Court in the relevant application.
[6]
In applying this test, I believe the emphasis must be on the phrase
'
...a legal interest in the subject matter of the application...".
21. Giving
a wide and generous interpretation to what the second to
twenty-seventh
applicants set out in the founding papers filed on
their behalf, the case they make out in the founding papers to be
joined in
the main application is as follows:
21.1.
They
are members of the community;
21.2.
Some
of the applicants seeking to join in the main application were born
on the farm Pniel;
21.3.
Some
of the said applicants are
'ESTA claimants';
and
21.4.
he
Court wants the applicants to proceed under application 1149/06 in
order to enforce those agreements which the Court made an
Order.
22.
To this we must add a point raised by Mr Schreuder, who appeared for
the second
to twenty-seventh applicants, in his oral argument. In
this submission Mr Schreuder referred to the report of the referee,
which
is annexed to the founding affidavit, and in particular where
the referee refers to the interest various parties have in the
contemplated
joint venture to mine for diamonds. In the referee's
report, the referee indicates that that the community would have a 9%
interest
in the said joint venture. Each of the grounds raised by the
said applicants as a ground to be joined as an applicant to the main
application will be dealt with in turn.
23.
It is common cause that none of the second to twenty-seventh
applicants are
members of the CPA. None of them even make any claim
to be entitled to membership of the CPA. No attempt is made to
explain which
community they claim to be part of and how such
community has a direct and substantial interest in the outcome of
case 1149/06.
Further, no attempt has been made to explain how any of
their rights and interests would be affected by any judicial decision
in
case number 1149/06. Consequently, the grounds summarised in
paragraphs 21.1 and 21.2 above cannot be described as affording the
applicants a substantial and direct interest that would enable them
to be joined as applicants or respondents to the main application.
24.
Turning now to the claims of the second to twenty-seventh applicants
as ESTA
claimants. In their answering affidavit the CPA states that
they have negotiated with the ESTA claimants and other residents and
through a process of negotiation have agreed to subdivide the farm
Pniel Estate 281 and without compensation to waive their rights
to
this portion to be subdivided for the benefit of the ESTA claimants
and other residents. The CPA contends in its answering affidavit
that
this includes the second to twenty-seventh applicants.
25.
The
said applicants' do not deal directly with this contention in
their
replying affidavit. When one considers that the primary purpose of a
replying affidavit is to afford the applicant an opportunity
to put
up evidence to refute the case made out by the respondent in its
answering affidavit
[7]
, the fact
that the said applicants' have chosen not to deal with this
contention at all, leads unavoidably to the conclusion that
the
applicants' were unable to put up any evidence to refute the
contention that the claims of the residents and ESTA claimants
had
been negotiated and resolved in the manner set out by the respondent
CPA in the answering affidavit filed on its behalf.
26.
The ESTA claimants and residents' rights having been negotiated and
settled
in this manner, means that the second to twenty seventh
applicants cannot rely on their claims under ESTA or as residents to
have a direct and substantial claim in the main application that
would entitle them to intervene in such main application.
27.
Mr Schreuder, on behalf of the second to twenty-seventh applicants,
expressly
disavowed the ground set out in paragraph 21.4 above, being
that the Court wished them to join as applicants under case 1149/06.
That being the case, this ground need enjoy no further considerat ion
.
28.
This leaves only the submission made by Mr Schreuder in his oral
argument that
the community was entitled to a 9°10 interest in
the joint venture. There are two difficulties with this argument. The
first
being that according to the respondent CPA the joint venture
agreement has lapsed and is no longer being pursued. The CPA owns
shares in the private company, Rushtail. Rushtail took cession of the
previous owner's mining right and thus has a mining right
which on
the face of it is valid. It is the respondent's case that this mining
right is not subject to the consent order of 27
March 2007. More on
this below.
29.
The
second difficulty is that this was not a ground relied upon by the
second to twenty-seventh applicants in the founding affidavit
filed
on their behalf. Mr Schreuder simply plucked it from the referee's
report which is annexed to the founding affidavit. The
CPA cannot be
expected to speculate what might be relevant in the annexures to the
founding affidavit. The applicants are required
to state their case
and the grounds relied upon expressly in the founding affidavit filed
on their behalf. This type of trial by
ambush is not tolerated. This
emerges clearly from the judgment of Cloete JA in the matter of
MINISTER OF LAND AFFAIRS AND AGRICULTURE
v D & F WEVELL TRUST
[8]
.
30.
In these circumstances, the second to twenty-seventh applicants
cannot rely
on the residents' 9°10 interest in the joint venture
as a basis to afford them
locus standi
for their application
to be joined as applicants in the main application in case number
1149/06.
31.
On the grounds raised by the second to twenty-seventh applicants to
establish
their
locus standi
to be joined as applicants in the
main application, I find that they have not established their
locus
standi
to be joined in the main application as applicants.
32.
In the circumstances of this case, I need to refer to the order I
made in case
number 1037/16. The material part of such order is set
out above. It called upon Rushtail and the CPA to purge their default
of
the order made by Molwantwa AJ on the 6 October 2006 which was
incorporated into the order made by Majiedt J on the 27 March 2007.
33.
The CPA has argued that they are not in breach of the relevant orders
as the
joint venture agreement has lapsed and that Rushtail has
acquired its right to prospect for diamonds on the relevant property
by
virtue of them taking cession of the relevant right. In the
alternative they argue that they have given the first applicant (The
Regional Land Claims Commissioner: Free State and Northern Cape)
written notice as contemplated in order 4(c) of the order issued
by
Molwantwa AJ issued on the 6 October 2006. In these circumstances, I
cannot find that the CPA or Rushtail are in or remain in
breach of
the said Order. In these circumstances, I cannot grant the relief
sought by the second to twenty-seventh applicants in
prayer 3 of
their Notice of Motion in this matter dated 27 July 2017.
34.
The remaining point
in limine
that needs to be considered
relates to the non-joinder of Rushtail. Prayer 6 in the said Notice
of Motion has a direct bearing and
direct impact on the rights of
Rushtail. In these circumstances Rushtail ought to have been joined
in this application.
Vis-a-vie
prayer 6 of the said Notice of
Motion, the non-joinder of Rushtail is fatal to such application for
the said relief.
35.
In these circumstances, the second to twenty-seventh applicants have
not established
any entitlement to any of the relief sought in their
Notice of Motion dated 27 July 2017. The application stands to be
dismissed.
36.
The only outstanding issue relates to costs. Mr Schreuder and Mr
Coetzee SC
were
ad idem
that costs should follow the event. I
agree, there is no basis for me to depart from that general rule.
IN THE
CIRCUMSTANCES, THE FOLLOWING ORDER IS MADE:
1)
THE APPLICATION IS DISMISSED.
2)
SECOND TO TWENTY-SEVENTH APPLICANTS ARE TO PAY THE COSTS ON A
PARTY-AND-PARTY SCALE, JOINTLY AND SEVERALLY, THE ONE PAYING THE
OTHERS
TO BE ABSOLVED.
L. LEVER AJ
NORTHERN
CAPE
PROVINCIAL
DIVISION
For the
Applicants:
MR J J SCHREUDER
(oio CM De Bruyn
& Partners Att.)
For the
Respondent: Adv W J
COETZEE SC
(oio Adrian
Horwitz & Ass.)
[1]
Act 28 of 1996
[2]
Act 62 of 1997
[3]
Act 28 of 2002.
[4]
1991 (1) SA 677 (Tk).
[5]
Above at 478H to 479C.
[6]
Standard Bank v Swartland Municipality
2011 (5) SA 257
(SCA) at 259E
to 260A.
[7]
Standard Bank of SA LTD v SEWPERSADH AND ANOTHER
2005 (4) SA 148
(CPD) at 159G-H.
[8]
2008 (2) SA 184
(SCA) at 200C-E