About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2018
>>
[2018] ZAKZPHC 35
|
|
Mpungose and Others v Shabalala and Others (2773/2015) [2018] ZAKZPHC 35 (24 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 2773/2015
In
the matter between:
BONGANI
J
MPUNGOSE
FIRST
APPLICANT
ID
NO: […]
MBONGENI
STEVEN
KHOZA
SECOND
APPLICANT
ID
NO: […]
JOHN
KHIPHA
ZWANE
THIRD
APPLICANT
ID
NO: […]
ELPHAS
BUTHELEZI
FOURTH
APPLICANT
DUMISANI
P
MBHELE
FIFTH
APPLICANT
ID
NO: […]
HENRY
MSIBI
SIXTH
APPLICANT
and
GAGI KENNETH
SHABALALA
FIRST
RESPONDENT
ID NO: […]
MEISIE ANNASTASIA
SHABALALA
SECOND
RESPONDENT
ID NO: […]
GREENDDINE AMPERBAAS
SHABALALA
THIRD
RESPONDENT
TRUSTEES FOR THE TIME BEING OF
THE
FOURTH
RESPONDENT
AMANTUNGWA DEVELOPMENT TRUST
NO. IT (2122/92)
J
U D G M E N T
Delivered
on: FRIDAY, 24 AUGUST 2018
OLSEN
J
[1]
This judgment concerns an application for the rescission of an order
made by this court on 12 March 2015. Judgment was
reserved when
the matter served before me as an opposed application, not because of
any doubt about the fate of the application
itself, but because of a
concern I had that the implementation of the judgment granted on 12
March 2015 (which has not yet been
executed upon) may now, in 2018,
not be in accordance with justice. The issue as to what order ought
to be made is the real subject
of this judgment.
[2]
On 28 February 2015 the respondents in the present application
obtained a rule nisi from this court on an urgent basis for
restoration of possession of certain immovable property to them
which, according to the founding papers, had been “invaded”
by the persons who are the applicants before me. Although the
principal relief was a spoliatory remedy, certain other relief
was
also set out in the rule nisi, consistent with the spoliatory remedy
and a claim that the applicants in this matter had employed
intimidatory tactics. I will continue to refer to the parties
as they are cited in the present rescission application.
[3]
The rule nisi called upon the applicants to show cause why a final
order should not be granted on 5 March 2015. On that
day the
applicants appeared in person and an adjournment of the matter to 12
March 2015 was allowed on the basis that they required
legal
representation, and to allow them to deliver their answering
affidavit by 9 March 2015. It appears that an attorney
was
instructed on 10 March 2015, but, nevertheless, there was no
appearance on 12 March 2015 when the rule nisi was confirmed.
That meant that an order had been granted directing the respondents
to vacate the land in question, which is largely agricultural
land.
It is that aspect of the order which now, three years later, causes
me some concern.
[4]
On 30 March 2015 the applicants launched an application for the
rescission of the final order made on 12 March 2015, coupled
with a
prayer for an interim order that execution of the eviction order of
12 March 2015 be stayed. That application (in
its entirety) was
dismissed on 30 March 2015. (There is a dispute over whether the
order made by the learned Judge who presided
on that day was
generated solely by a finding that urgency had not been established,
with the result that, despite the fact that
he dismissed the entire
application, those proceedings should not be regarded as a dismissal
of the application for rescission
of the judgment. I do not
take the view that anything turns on that dispute, but merely make
the observation that if the
learned Judge was concerned only with
urgency, the order which ought to have been issued was one striking
the matter from the roll.
There is no reason to doubt that the
learned Judge concerned was unaware of that fact.)
[5]
That order refusing rescission stands unchallenged. By their
own confession the applicants decided to accept it.
The
founding affidavit in the present application explains the position
adopted by the applicants.
‘
After
re-assessing the situation we decided that appealing the [spoliation]
order was a better option and would have the desired
effect of
staying the order concerned.’
An
application for leave to appeal against the original spoliation order
was accordingly delivered in April 2015. It got delayed
because
the applicants had overlooked the need to obtain reasons for the
final judgment granted by this court in the spoliation
application.
Reasons were subsequently provided, but the application for leave to
appeal was not set down for hearing.
In fact, as will be seen,
it has never been heard.
[6]
Undeterred by the dismissal of the first application to rescind the
spoliation order, and by the fact that the spoliation order
had
become the subject of an application for leave to appeal, in March
2016 (a year, more or less, after the spoliation order had
been
granted) the applicants launched a second application for rescission
of the judgment. That is the application which
serves before
me. It was opposed, affidavits delivered, and the proceedings
brought before the court for argument only on
15 June 2018.
[7]
During the course of argument it was put to counsel for the
applicants that the appeal proceedings were inconsistent with the
relief presently sought, as the launch of the application for leave
to appeal against the original spoliation order implied that
it had
become final, and not susceptible to alteration by this court.
Responding to that, the application for leave to appeal
was withdrawn
and an appropriate order made on that day. If the proposition
put to counsel had merit, I do not think that
a decision at that late
stage to withdraw the application made any difference. If the
decision to apply for leave to appeal
had consequences, they appear
to me to be of the immutable type, and were certainly operative at
the time when the present application
for rescission of the
spoliation order was launched.
[8]
Be that as it may, whether the decision of this court to refuse the
first application for rescission of judgment was susceptible
to
attack because it was the wrong form of order for the occasion, or
because the application indeed had merit (i.e. it was wrongly
judged
to be without merit), the position remains that the order was made
and was appealable. No appeal against it was launched.
In
the result this court has finally ruled on the question as to whether
the spoliation order should stand or be rescinded.
It did so in
the first rescission application.
[9]
Counsel for the applicants attempted to argue before me that there
was some distinction to be drawn between the grounds upon
which
rescission is sought in the present application, and those which were
relied upon in the first, and that this justified a
right of access
to court in the second application for rescission of the spoliation
order. However I cannot agree with the
premise. The
applications are in all material respects the same. The
application before me must be dismissed.
[10]
What the papers reveal is that the real dispute between the parties
concerns disputed rights of access to the properties which
were the
subject matter of the spoliation application. I was informed
from the bar that no proceedings have yet been instituted
in order to
resolve those disputes. The disputes appear to me to be real
(i.e. there is a genuine adherence on each side
to the contentions
made by them in support of claimed rights of access to, and claimed
rights to exclude others from, the land).
It is clear on the
papers before me that these disputes must be resolved if peace is to
reign.
[11]
The difficulty is that on the papers before me one must accept that
both sides to this dispute are in occupation of some portions
of the
land in question. Insofar as the applicants are concerned that
occupation has endured from early 2015 until now.
Whether or
not such occupation by the applicants is lawful, in the intervening
period
de facto
residence on the land has been established.
The benefits of such residence are presumably enjoyed not only
by the applicants,
but also by those obtaining occupation through
them. A settled state of affairs has arisen, whether lawful or
otherwise.
[12]
During the course of argument before me this state of affairs was
drawn to my attention by counsel for the applicants who spent
rather
more time dealing with the dispute over rights, rather than with the
more narrow issue of dispossession which was the true
ground for the
grant of spoliatory relief in the first case. Counsel for the
respondents recognised that a comparison of
the state of affairs
which obtains on the land now, with that which formed the foundation
of the claim for spoliatory relief three
years ago, is problematic.
After taking instructions, counsel for the respondents made an open
offer in court that if the
applicants should concede the present
application (with costs), the respondents would undertake not to
execute upon the ejectment
order it obtained in 2015 pending the
determination of an action by the applicants to determine the merits
of their claim to rights
in the land. It came as something of a
surprise to me that this offer was not accepted by the applicants.
[13]
The offer made by the respondents must be taken to be withdrawn, the
applicants having failed to accede to the conditions upon
which it
was made. The question which has concerned me is whether I am
able
mero motu
to make an order along the lines proposed by
the respondents.
[14]
At least some relevant considerations militate against my stepping in
mero motu
. The one is the intransigent attitude adopted
by the applicants. Another is that the delays which have
brought matters
to this sorry impasse must be laid at the door of the
applicants who have manipulated proceedings and court process
somewhat cynically.
[15]
On the other hand, the execution of the spoliation order at this time
will address a state of affairs which was not the one
which this
court could have had in mind when the spoliatory remedy was first
granted. That does not on its own mean that
the order cannot
now be executed upon, given that the delays which have given rise to
the problem must be laid at the door of the
applicants.
[16]
However, agricultural activities aside, we have now reached the stage
where the provisions of s 26 of the Constitution, and
perhaps also s
25, are engaged by the facts on the ground. At the very least
the applicants and those who occupy through
them appear to me, on the
respondents’ case, to have now become unlawful occupiers of the
land who, but for an existing order
of ejectment, would be entitled
to the legislative protection given to persons of that status.
On the papers as a whole there
is presently a dispute which cannot be
resolved on paper, and which certainly does not fall to be resolved
in the current proceedings,
concerning rights of access to the land.
If the respondents were not armed with the spoliation order they
would have to launch
proceedings which would involve the resolution
of those claims of right in order to establish their right to have
the applicants
ejected. Given that the respondents do have the
spoliation order, it seems to me that if an order has to be made
which allows for
the resolution of the dispute over rights to the
land to be resolved before anyone is ejected, then it is for the
applicants to
bear the onus of establishing their rights.
[17]
Given all the circumstances I have reached the conclusion that it is
proper and in accordance with justice, and the rights
of the parties
under s 34 of the Constitution (of access to court for the resolution
of their disputes), to make an order suspending
the execution of the
spoliatory remedy granted to the respondents pending an action or
actions to resolve the disputes between
the parties.
[18]
I have no doubt that this is an appropriate case in which to accede
to the respondents’ request that the costs of the
present
application should be paid by the applicants on the scale as between
attorney and client.
I
make the following order.
1.
The application to
rescind the final order made on 12 March 2015 is dismissed with costs
on the scale as between attorney and client,
the applicants being
jointly and severally liable for the payment of such costs.
2.
The execution of
paragraphs (a) and (b) of the final order made on 12 March 2015 (the
ejectment provisions) is suspended pending
the determination of an
action or actions to be instituted by the applicants against the
respondents (and any other party the applicants
may choose to join)
by service of the summons or summonses commencing such action or
actions upon the respondents not later than
thirty (30) days after
the date of this order.
3.
Without limiting
the relief which might be claimed by the applicants, in the said
action or actions each applicant shall plead and
claim a declaratory
order as to his right to occupation of any of the land which is the
subject matter of the order of 12 March
2015.
4.
The suspension of
the ejectment orders set out in paragraph 2 of this order shall lapse
in respect of any of the applicants in the
event of non-compliance by
such applicant or applicants with paragraphs 2 and 3 of this order.
__________________
OLSEN
J
Date
of Hearing: FRIDAY, 15 JUNE 2018
Date
of Judgment: FRIDAY, 24 AUGUST 2018
For
the Applicants: MR ND MYENI
Instructed by: PHUMULANI NGUBANE &
ASSOC.
APPLICANTS
ATTORNEYS
SUITE
201a, DOONE HOUSE
379
ANTON LEMBEDE STREET
DURBAN
(Ref.:
PM1471/PA Ngubane)
(Tel.:
031 – 829 1988)
c/o
KWELA ATTORNEYS
4
George Street
PIETERMARITZBURG
KWAZULU-NATAL
For
the Respondents: MR V MOODLEY
Instructed by: BOTHA & OLIVIER
INC.
RESPONDENTS
ATTORNEYS
239
PETER KERCHHOFF STREET
PIETERMARITZBURG
KWAZULU-NATAL
(Ref.:
Miss S Hariparsad/jd/S.92)
(Tel.:
033 – 342 7190)