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[2018] ZALMPPHC 30
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Matlala and Others v Platinum Group Metals (RSA) (Pty) Ltd and Another (60/2018) [2018] ZALMPPHC 30 (12 July 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 60/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
KGOSHIGADI
LEKWELARURI ROSETTA MATLALA
1
ST
APPLICANT
MANOKO
MOSIMA
NGOEPE
2
ND
APPLICANT
EARLY
DAWN TRADITIONAL AUTHORITY
3
RD
APPLICANT
and
PLATINUM
GROUP METALS (RSA) (PTY) LTD
1
ST
RESPONDENT
THE
REGIONAL MANAGER MINERAL
AND
ENERGY
AFFAIRS
2
ND
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Applicants brought an application against the Respondents seeking
an interdict preventing the First Respondent from proceeding
with the
prospecting and mining activities on the Early Dawn Farm and
compelling the First Respondent to negotiate and conclude
a lease
agreement with the Applicants.
[2]
On 2 October 2013 the First Respondent was, in terms of
section 17(1)
of the
Mineral and Petroleum Resources Development Act 28 of 2002
(“MPRDA”), granted the prospecting right over the Farm
Early Dawn 361 LR situated in the Mogalakwena District, Limpopo
Province. In order to facilitate access to the Early Dawn Farm, the
First Respondent concluded a lease agreement with the Early
Dawn
Community on 2 April 2015. The lease is for five years and the First
Respondent pays R 40 000.00 per month to the Early
Dawn
Community.
[3]
The Application is opposed by the First Respondent on the following
grounds:
3.1.
Although the First Applicant is the legitimate traditional leader of
the Bakone Tribe, the title deed together with all the
documents
concluded as part of the acquisition of the Early Dawn Farm do not
support her claim of entitlement to exercise authority
over the Early
Dawn Farm.
3.2.
The Second and Third Applicants do not have any traditional standing
or authority and entitlement to bring these proceedings.
3.3.
The Applicants have not established any clear right, whether under
the law of property or the Traditional Leadership laws to
justify an
interdict sought against the First Respondent.
[4]
The Deeds Office search report attached to the founding affidavit
records the owner of the Early Dawn Farm as the National Government
of the Republic of South Africa.
[5]
During the year 1945 a group of 93 people came together and formed
themselves into a community with the intention of buying
the farms
Early Dawn No. 996 and Millstream No. 995 from the Bourke Trust and
Estate Company Limited. The agreement of purchase
and sale was
entered into and signed by Chief Sekgoare Matlala on 16 April 1945.
The purchaser was recorded as “The Bakone
Tribe of Natives
under Chief Sekgoare Matlala”. The property was to be
registered in the name of “
the Minister for Native Affairs
in the Union of South Africa in trust for the Bakone Tribe of Natives
under Chief Sekgoare Matlala.”
It is important to note that
Chief Sekgoare Matlala was not one of the 93 purchasers.
[6]
The purchase and sale agreement was subject to the reservation of
mineral rights in favour of the Bourke Trust and Estate Company
Limited and to the following conditions:
6.1.
That transfer shall be passed into the name of the Minister of Native
Affairs in trust for the Bakone Tribe of Natives under
Chief Sekgoare
Matlala
.
6.2.
That simultaneously with transfer a Notarial Agreement shall be
executed reserving to the 93 members of the said tribe who
are
contributing towards the purchase price the rights of exclusive use,
occupation and usufruct in the said farms.
[7]
Upon signature of the Purchase and Sale Agreement on 16 April 1945 a
Tribal Resolution was passed whereby it was resolved:
7.1.
That the exclusive right of occupation and use of the farms be and is
hereby reserved for the benefit of the 93 members of
the tribe and
such members as may from time to time be admitted, their respective
heirs, executors, administrators and assigns.
7.2.
That the said members, their respective heirs, executors,
administrators or assigns shall have and are hereby granted the sole
and unfettered right to administer the said property without
interference and control of the said Bakone Tribe.
7.4.
That the revenue that may be derived from, and the proceeds of any
sale or alienation of the said property shall belong to,
and be for
the benefit and use of the said members, their respective heirs,
executors, administrators and assigns.
[8]
It is common cause that the present members of the Early Dawn
Community
are
the descendants of the 93 people who purchased the Early Dawn Farm.
It is furthermore common cause that Chief Sekgoare Matlala
is the
predecessor to the First Applicant.
[9]
A careful reading of the conditions of the purchase and sale of Early
Dawn Farm as well as the Tribal Resolution passed on 16
April 1945
shows that the Early Dawn Farm is a communal private property and not
a communal tribal property.
[10]
The question arises as to whether the three Applicants have authority
to bring the interdict proceedings against the First
Respondent. It
is common cause that the First Applicant is the acting traditional
leader of the Bakone Tribe, Matlala area which
includes the Early
Dawn Farm. Whether the First Applicant exercises traditional
jurisdiction or has proprietary rights over the
privately owned farm
of Early Dawn will be dealt with later in this judgment.
[11]
Regarding the Second Applicant it is alleged in the founding
affidavit that she is the “head lady” (or headwoman)
of
the Early Dawn Farm and the custodian of the mineral rights.
Apparently the Second Applicant was appointed or nominated as such
by
the First Applicant. Such an appointment is not according to
customary law and the applicable legislation. This has been conceded
by the Applicants. The appointment of a headman or headwoman should
be conducted in terms of
section 12
of the Limpopo Traditional
Leadership and Institutions Act 6 of 2005 which regulates the
recognition of traditional leaders. In
terms of this Act, the Royal
Family identifies a suitable person and submit the name to the
Premier of the Province who after due
and prescribed publication in
the Government Gazette recognises such a person and issue to him or
her a certificate of appointment
as a traditional leader. This
procedure was never followed in the case of the Second Applicant.
Accordingly, the Second Applicant
is not a traditional leader
(headwoman) and therefore does not have authority to bring these
proceedings against the Respondents.
[12]
It is alleged that the Third Applicant is “a community
authority duly established with a Constitution” and represents
the inhabitants of the Early Dawn Farm. Section 3 and 4 of the
Limpopo Traditional Leadership and Institutions Act, 2005 regulates
the formation or establishment of a Traditional Authority or Council.
The Premier of the Province also plays a part in the recognition
of a
traditional community and the establishment of a Traditional Council.
It
is common cause that this process was not followed in respect of the
establishment of the Third Applicant. There is nothing to
suggest
that the Third Applicant is a Traditional Council contemplated under
section 3 and 4 of the Act.
[13]
The processes and requirements set out in the aforementioned sections
of the Limpopo Traditional Leadership and Institutions
Act, 2005
regarding the appointment of traditional leaders and establishment of
a Traditional Authority or Council are meant to
ensure that no one
can go around masquerading as a traditional leader when they have not
been officially recognised as such.
No
group or community can assert for itself traditional community rights
that have not been officially recognised as such. And,
no group of
individuals can arrogate to itself the authority of a traditional
Council when it has not been officially recognised
as such.
[14]
Accordingly, the Second and Third Applicants are, for purposes of
these proceedings, eliminated from the contest.
[15]
What remains now is to determine whether the First Applicant (albeit
a traditional leader of Bakone Tribe) has any traditional
jurisdiction or proprietary rights over the Early Dawn Farm.
[16]
It is trite that an applicant for a final interdict must show a clear
right; an injury actually committed or reasonably apprehended;
and
the absence of similar protection by any other ordinary legal remedy.
See
Setlogelo
v Setlogelo
1914 AD 221
at 227 and Hotz and Others v University of
Cape Town [2016] 4 All SA (SCA) para 29.
In
the present case the First Applicant’s rights, if any, are
closely tied to her standing to bring these proceedings. For
this
Court to find for the First Applicant it will have to find that she
has the authority she asserts over the Early Dawn Farm.
[17]
The First Applicant alleges that “the farm Early Dawn belongs
to the Government of the Republic of South Africa and is
held in
trust for the Bakone Tribe”. I presume that it is the South
African Government that is the trustee. That being the
case, the
powers that the First Applicant seeks to exercise over the farm Early
Dawn are powers vested in the trustee. It is not
explained how the
First Applicant would assume the powers of the trustee. In my view
the First Applicant has failed to set out
or identify any clear
right, whether under the law of property or the Traditional
Leadership Act referred to above.
[18]
The following question remains to be answered:
Whether
the Early Dawn Farm falls under the First Applicant’s
traditional authority jurisdiction
.
[19]
It appears clearly from the Purchase and Sale Agreement (Annexure
“MR2” to the founding affidavit) that although
the Early
Dawn Farm was registered in the name of the “Minister of Native
Affairs in trust for the Bakone Tribe of Natives
under Chief Sekgoare
Matlala” this property together with the Farm Millstream, was
in fact purchased by ninety three individuals
of the tribe. The then
Minister of Native Affairs approved the purchase,
inter
alia
on condition “That simultaneously with the transfer a Notarial
Agreement shall be executed reserving to the ninety
three members of
the said tribe who are contributing towards the purchase price, the
rights of exclusive use, occupation and usufruct
in the said farms.”
[20]
It appears further from Annexure “MR2” to the founding
affidavit that pursuant to the conditions of such approval,
the
Bakone Tribe passed a resolution on 16 April 1945 to the effect that
the exclusive right of occupation and use of the farms
Early Dawn and
Millstream was reserved for the benefit of the ninety three
purchasers and their heirs, executors. Administrators
and assigns,
and that such purchasers were granted the sole and unfettered right
to administer the farms without interference and
control of the
Bakone Tribe.
[21]
The Notarial Agreement requirement was later amended and replaced
with an underhand agreement which accorded the ninety three
purchasers, their heirs, executors, administrators and assigns the
same exclusive rights to deal with the farms, to the exclusion
or
interference from the Bakone Tribe, and hence the Applicants.
[22]
There is a civil case pending in this Court under case number
393/2015 wherein members of Early Dawn Community dispute the
First
Applicant’s authority over them and the Early Dawn Farm in
particular and they want her interdicted from interfering
with their
affairs. In that pending matter the Early Dawn Community are
disputing also the appointment and the title of the Second
Applicant
and want the First and Second Applicants to be interdicted from
performing any of the duties that come with their titles.
In essence,
the disputes in the pending case go to the heart of this application,
and the Applicants herein cannot establish a
clear right until such
time the pending disputes have been determined in their favour.
Therefore,
the Applicants cannot be granted a final interdict and this
application ought to be dismissed.
[23]
The First Respondent has prayed for the dismissal of the application
with costs on attorney and client scale. It is argued
that the manner
in which the Applicants have conducted this litigation justifies a
punitive costs order. That the Applicants came
to Court with the full
knowledge that the rights and authority that they claim over Early
Dawn Farm are disputed but do not mention
this very important matter
that is currently pending. Furthermore it was submitted on behalf of
the First Respondent that the Applicants
are abusing the Court’s
processes by opening another front to try and ventilate the very same
issue (their rights and authority
over the Early Dawn Farm) that is
pending before the Court in case number 393/2015.
[24]
The principles relevant to an award of costs on an attorney and
client scale are well established. Where costs are awarded,
the Court
exercises a discretion. This discretion is to be exercised judicially
upon consideration of the facts of each case. It
is a matter of
fairness to both sides -
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA 1045
(SCA) at 1055 F-G
.
[25]
As regards an award of costs on the scale as between attorney and
client, Tindall JA in the case
Nel v Waterberg Landbouers
Ko-Operatiewe Vereniging
1946 AD 597
at 607
said:
“
The
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the
Court in a
particular case considers it just by means of such an order to ensure
more effectively than it can do by means of a
judgment for party and
party costs that the successful party will not be out of pocket in
respect of the expenses caused to him
by the litigation.”
See
also
Swartbooi
and Others v Brink and Others
2008 (1) SA 203
(CC) at para [27]
.
[26]
Punitive costs have been granted when a practitioner instituted
proceedings in a haphazard manner, willfully ignored Court
procedure
or rules; presented a case in a misleading manner; and forwarded an
application that was plainly misconceived and frivolous.
See
Stainbank v SA Apartheid Museum at Freedom Park and Another
2011
(10) BCLR 1058
(CC)
.
In
casu
,
I am not persuaded that the conduct of the Applicants and / or their
legal representatives calls for an order of costs on attorney
and
client scale.
[27]
In the result I grant the following order:
The
Application is dismissed with costs on party and party scale.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on: 26 June 2018
For
Applicants: Adv. M S Schnehage
Instructed
by: Smit & Maree Attorneys
For
Respondents: Adv. N Luthuli
Instructed
by: Cliff Dekker Hofmeyer Attorneys
c/o
Kirk Twine Attorneys