About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 47
|
|
Block 17, Ga-Seaphole Community Development Committee and Others v P.M.E. Business Enterprise t/a Maake Farming and Others (1633/2015) [2018] ZALMPPHC 47 (3 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1633/2015
IN
THE MATTER BETWEEN
BLOCK 17, GA-SEAPHOLE COMMUNITY
DEVELOPMENT
COMMITTEE
:
1ST APPLICANT
BLOCK 17, GA-SEAPHOLE CONCERNED
COMMUNITY RESIDENTS: Individuals
Listed
in annexure “a” 13
th
to 272
nd
Applicants
:
2nd APPLICANTS
And
P.M.E BUSINESS ENTERPRISE
T/A MAAKE FARMING
(CK
NO.
2002/042830/23)
:
1
ST
RESPONDENT
MOHALE
EVANS
MAAKE
:
2ND RESPONDENT
HEADMAN:
MICHAEL MOROPENE
:
3RD RESPONDEND
MODJADJI
TRADITIONAL COUNCIL
:
4TH RESPONDENT
GREATER
LETABA LOCAL MUNICIPALITY
:
5TH RESPONDENT
DEPARTMENT OF CO-OPORATIVE
GOVERNMENCE, HUMAN SETTLEMENTS
AND TRADITIONAL AFFAIRS-LIMPOPO
PROVINCE
:
6TH RESPONDENT
JUDGMENT
SEMENYA J:
1.
The
1
st
applicant is a structure referred to as Community Development
Committee (CDC) comprising of eleven members elected by the residents
of Block 17, Ga-Seaphole village in Modjadji area. This structure is
tasked with the responsibility of overseeing development within
the
community and land issues within the village. The 2
nd
applicant is the chairperson of the CDC. The 3
rd
to 13
th
and the remaining applicants are its office bearers and additional
members.
2.
The
1
st
and 2
nd
respondents (the respondents) are the occupiers of a piece of land
which is situated at Ga-Seaphole village. The 3
rd
respondent is a headman of Ga-Seaphole village. The 4
th
respondent is the Royal Council which, according to the applicants,
is the guardian of the land in question in this matter. Mohale
Evans
Maake deposed to the answering affidavit on behalf of the 1
st
to the 4
th
respondents. The 5
th
and 6
th
respondents are joined as government authorities responsible for
overseeing the issuing of Permission to Occupy land in rural areas
(PTO).
3.
The
applicants seek an order in terms of which the 1
st
and 2
nd
respondents are evicted from the land and further that they should be
interdicted from farming on it.
4.
It is
common cause that the respondents have erected a fence around the
land which, according to the applicants, belongs to the
community of
Ga-Seaphole. The respondents are conducting farming activities on
this land. The respondents have initially claimed
that they are
occupying the land on the strength of a PTO which was issued to them
with permission from the 3
rd
and 4
th
respondents. The deponent to the answering affidavit subsequently
conceded that the PTO was not properly issued and was therefore
null
and void
.
5.
In a
supplementary affidavit, the 2
nd
respondent alleges that the land was the property of his father on
which the latter has been farming. The applicants regard this
fact as
the respondents’ third defence. The applicants argued that the
land in question belongs to the community and cannot
be inherited.
The argument is that, once the original occupier dies or vacate the
land, it will simply revert back to the community.
It was submitted
that the 2
nd
respondent’s father had stopped to farm on the land, as such he
cannot claim that the land still belong to his family.
6.
In
response to the applicant’s contention, the respondents argued
that there are other members of the community, among others,
one Mr
Mawasha, who are farming the land that belonged to their fathers and
also without permits. It was submitted that there is
an established
custom within the community in terms of which members would approach
the 3
rd
and 4
th
respondents whenever they require land for farming purposes. The
respondents argue that the applicants do not have issues with
these
other members, which in essence, it was argued, is confirmation of
the existence of that culture. It was further argued that
the 3
rd
and 4
th
respondents have also confirmed this culture in their confirmatory
affidavits.
7.
It
was argued on behalf of the applicants that the only way the
respondents can raise the issue of Mr Mawasha is by taking him to
court. It was submitted that the applicants are not aware that Mr
Mawasha and other farmers are farming illegally on the land in
question.
8.
The
applicants’ contention in respect of Mr Mawasha cannot be
entirely correct. Mr Mawasha is the 265
th
applicant in this application. As a party to the proceedings, he is
expected to be in a better position to either refute or admit
the
allegations leveled against him. I am inclined to accept the
respondents’ submission in the absence of such denial.
Furthermore, the applicants failed to refer the court to authority in
support of the argument that the land will revert back to
the
community after the death of the original owner. On the contrary, it
is their evidence that piece of land that belongs to the
community
was allotted to families and not to individuals.
9.
The
applicants concede that certain families were allotted land for
subsistence farming within the area. The respondents argued
that this
is a concession that land can be inherited by the decedents of those
who have been allotted land in the past. It was
submitted by the
respondents that they cannot be faulted for continuing to farm on the
land that once belonged to his father, as
does other members of the
community. The respondents’ contention is that they too
deserves the protection afforded by the
Interim Protection of
Informal Land Rights Act 31 of 1996 (IPILRA), and cannot, on that
basis, be deprived of his father’s
land without following
proper procedures.
10.
It
is common cause that the applicants have addressed a letter to the
2
nd
respondent dated the 3
rd
January 2015, in which the respondents are ordered to leave the land
save for that on which his father has been farming in the
past. I
therefore find that on the basis of this statement alone, it is
evident that there is no dispute in as far as that piece
of land is
concerned. It is opportunistic for the applicants to dispute this
fact.
11.
Section
2 of IPILRA, on which both parties rely provides as follows:
“
(1)
Subject to the provisions of the Expropriation Act, 1975 (Act no 63
of 1975), or any other law which provides for the expropriation
of
land or rights in land, no person may be deprived of any informal
right to land without his or her consent.
(2) Where land is held on a
communal basis, any person may, subject to subsection (4), be
deprived of such land or rights in land
in accordance with the custom
or usage of the community.
(3) Where the deprivation of a
right in land in terms of subsection (2) is caused by the disposal of
a land or right in the land
by the community, the community shall pay
appropriate compensation to any person who is deprived of an informal
right to land as
a result of such disposal.
(4) For the
purposes of this section, the custom and usage of a community shall
be deemed to include the principle that a decision
to dispose of any
such right may only be taken by a majority of the holders of such
rights present or represented at a meeting
convened for the purpose
of considering such disposal and of which they have been given
sufficient notice, and in which they have
had a reasonable
opportunity to participate.”
12.
With
regard to the remaining portion, the 2
nd
respondent alleges that anyone who is interested in acquiring land
within the village must request it by attending Kgoro. He further
states that, should that person require an extension of that land, he
should approach the headman and his committee for permission
to
occupy that land. The community and the Modjadji Royal Kraal would
have to be informed about this fact.
13.
Whilst
in agreement with the procedure to be followed for the extension of
the land as outlined by the respondents, the applicants
however
contend that the respondents have not followed this procedure. The
1st and 2nd respondents allege that the 3
rd
and 4
th
respondents have granted them permission to extend the land. The 3
rd
and 4
th
respondents filed confirmatory affidavits in this regard. It is
however not disputed that the community was not consulted when
the
land was so extended.
14.
The
extension of the respondent’s land was done without proper
consultation with the community at a properly convened meeting.
It
was therefor done in contravention of IPILRA. Reliance on the
acquisition of land extension in a similar manner by other members
of
the community is misplaced. The respondents cannot claim the right to
equality to justify their unlawful deeds. The applicants
are urged to
take similar action against all other farmers who have acquired the
land in an unlawful manner.
15.
The
respondents contended that the applicants’ failure to launch
similar applications against other members of the community
who have
occupied land is in itself discriminatory. It was submitted that this
discrimination goes against the ethos of right to
equality as
envisaged in section 9 of the Constitution. It was further contended
that the applicants’ conduct goes against
the provisions of
section 25 of the Constitution. The respondents submitted that the
applicants cannot arbitrarily evict them from
the land that belonged
to their father and their family. I agree with this contention to the
extent that it refers to that land
that was owned by the 2
nd
respondent’s father only. I however do not agree with the land
that has been extended.
16.
The
respondents places reliance on
IPILRA
and the unreported decision of
The
Ingonyama Trust and Others v Umlalazi Municipality and Others
(1421/2016) [2016] ZAKZPHC 89 (10 October 2016)
(Umlalazi) and argued the land was not occupied at the time of the
extension. The court in Umlalazi rejected the argument that
the land
in question in that case was unoccupied when it was acquired on the
basis that the pictures which were tendered as evidence
depicted old
house on the land. In the instant matter, although there were no
houses on the land, the evidence proved that the
land was used by the
community for communal livestock grazing and subsistence farming.
17.
It
was argued on behalf of the respondents that the extent of the land
that belonged to the 2
nd
respondent’s father is in dispute. It was submitted that the
court should, on that basis, refer the matter for oral evidence.
I do
not agree. The fact that part of the respondent’s farm consist
of land that belonged to his father is not in dispute.
The applicants
also allowed the respondents to continue to farm on that land. The
extent of that land will have to be determined
on the basis of the
respondents’ version in line with the
Plascon-Evans
Rule.
18.
The
applicants do not define the land that belonged to the 2
nd
respondent’s father. On the other hand, the 2
nd
respondent clearly described the said farm. I have no reason to
decide against the 2
nd
respondent in that regard.
19.
The
2
nd
respondent alleges that he has lodged a claim from the land that
belonged to his father with the land Claim Commission. It was
argued
on behalf of the applicants that the respondents are contradicting
themselves. The basis of this contention is that the
respondents
cannot on the one hand claim that the land belonged to his father
while at the same time claim the very same land,
which already belong
to him. Counsel for the applicants loses sight of the statement made
by the respondents that the reason for
the lodging of a claim is to
enable the Land Claim Commission to resolve their issues through
investigations.
20.
I
cannot fault the stands adopted by the respondents in this regard.
There is a need for certainty in order to settle the issues
between
the parties. The claim was put on hold in view of the Constitutional
Court decision in
Land
Access Movement of South Africa and Others v Chairperson of the
National Council Of Provinces (CCT40/15) ZACC 22 (28 July 2016)
.
In this case the Restitution Amendment Act 15 of 2014 was declared
invalid on the basis that there was no proper consultation
and
allowed the parliament to craft legislation which opens restitution
of land within 24 months.
21.
I am
satisfied that the applicants have made out a case for a final
interdict in relation to the extended land. The requirements
laid
down in
Setlogelo
v Setlogelo
1914 AD 221
have been satisfied. The applicants have a clear right to the
communal land. It is the land used by the community for grazing their
livestock among other things. The land is protected by the IPILRA.
The extension of the respondents’ farm has the effect
of
depriving the applicants of their right to land. The extension was
carried out in an unlawful manner. There is no other remedy
other
than the one sought by the applicants.
22.
There
is no provision in IPILRA for compensation in a case such as this.
The only provision is where it is the community that deprives
the
individual of his/her land. The community should compensate the
individual under those circumstances. The applicants are partly
entitled to the order sought.
23.
I do
not agree that the respondents acquired the PTO in a fraudulent
manner. The respondents allege that the reason why they approached
the magistrate for the PTO was because they needed a loan from the
bank and they were advised to secure this document. I further
find
that the respondents were misled by the magistrate and the 3
rd
and 4
th
respondent. It is for this reason that I find that it will not be
proper to order the 1
st
and 2
nd
respondents to pay the costs on an attorney and client scale.
24.
With
regard to the issue of the costs incurred during on the 2 November
2017, it is undisputed that the applicants failed to file
their
opposing affidavit and that the delay was further occasioned by the
applicants as their papers were not in order. It is appropriate
that
the applicant should be pay the costs of that date.
25.
With
regard to the costs of the main application, I find that an
appropriate order should be that each party is to pay its/ his
own
costs. This is so in that the applicants have partially succeeded in
their claim. The respondents on the other hand have succeeded
in
proving that they are entitled to farm on a portion of the land that
they are occupying.
26.
It is
ordered:
i.
The
Permission to Occupy land issued to the 1
st
and 2
nd
respondents by a magistrate is declared
null
and void;
ii.
The
1
st
and 2
nd
respondents are ordered to remove the fence on the land other than
that which belonged to his father and or Maake family within
a period
of eight months;
iii.
In
the event that the 1
st
and 2
nd
respondents fail to or refuse to remove the fence, the sheriff of the
court or his lawfully appointed deputy is authorized and
directed to
remove the fence;
iv.
The
1
st
and 2
nd
respondents are interdicted from continuing to farm on communal land;
v.
The
applicants are ordered to pay the costs of the 2 November 2017.
vi.
Each
party shall pay its own costs of the main application.
M.V
SEMENYA
JUDGE OF THE HIGH COURT; LIMPOPO
DIVISION.
APPEARANCES
ATTORNEYS FOR THE APPLICANTS :
SEHUNANE ATT
COUNSEL FOR THE APPLICANTS: MR.
SEHUNANE
ATTORNEY FOR THE RESPONDENTS:
NOVENI EDDY KUBAYI INC.
COUNSEL FOR THE RESPONDENTS :
MR. E KUBAYI
RESERVED ON: 12 MAY 2018
JUDGMENT
DELIEVERED ON: 03 SEPTEMBER 2018