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[2017] ZALMPPHC 2
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Misabeni Khosa and Associates v Chuma and Others (4059/2016) [2017] ZALMPPHC 2 (2 March 2017)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 4059/2016
Not
reportable
Not
of interest to other judges
Revised.
2017-03-02
In
the matter between:
MISABENI
KHOSA AND
ASSOCIATES
APPLICANT
And
MR
CHUMA 1
ST
RESPONDENT
MR
PATEL 2
ND
RESPONDENT
GREATER
GIYANI
MUNICIPALITY 3
RD
RESPONDENT
LIMPOPO
DEPARTMENT OF HUMAN SETTLEMENT 4
TH
RESPONDENT
ANY
TRADITIONAL AFFAIRS
DEPARTMENT
OF ECONOMIC, DEVELOPMENT, 5
TH
RESPONDENT
AND
TOURISM
MABUNDA
TRADITIONAL
AUTHORITY 6
TH
RESPONDENT
CHIEF
MABUNDA 7
TH
RESPONDENT
JUDGMENT
NF
KGOMO J
INTRODUCTION
[1]
On 2017-02-17 the following order was
issue in this matter:
“
1.
The application is dismissed with costs.
2. Reasons for judgment
will follow in due course.”
[2] Herewith are the
reasons:
Notice of Motion
[3] On 09 September 2016
the applicant herein launched an application on an urgent basis
subject to Rule 6 (12) of the Uniform Rules
of Court praying for an
order:-
3.1 That non-compliance
with the Rules relating to service and forms of process be condoned
and that this matter be heard as an
urgent one in terms of Rule 6
(12) of the Uniform Rules of Court.
3.2. That the 1
st
and 2
nd
respondent be interdicted and/or prohibited from
developing and/or building on the applicant’s site or land
referred to in
paragraph 5 of the affidavit.
3.3 That the 1
st
and 2
nd
respondent’s be interdicted and/or
prohibited from entering the applicant’s land or site situated
at corner R81
road to Malamulele and the D.3634 road to Siyandlani
Village in the Greater Giyani Municipality.
3.4. That the 1
st
and 2
nd
respondents and/or their employees or any one
acting on their instructions or their agents, be ordered to remove or
move away their
building material from the site and to stop the
developments and/or building of a wall around or at the applicant’s
land
or site.
3.5. That this Honourable
Court find that the land or site in question was lawfully allocated
to the applicant for development and
that the applicant still has or
retains the right to develop it.
3.6 That this Court find
that the said land was never allocated or transferred to the 1
st
and 2
nd
respondents as alleged or at all.
3.7 That those
respondents who oppose this application be ordered to pay all the
costs of suit on a scale as between attorney and
client.
3.8 that no order of
costs is asked against the 3
rd
to 7
th
respondents unless they oppose this applications.
[4] The applicant does
not identify the land or side by its number or any other citation
recognized by agencies or institutions
of governance that deal with
allocation of transfer of properties,. It merely describes it as the
land or site situated at the
corner of the R81 road leading to
Malamulele and road D3634 leading to Siyandlani Village, in the
Giyani district or municipality.
Citation of the
parties herein
[5]
The applicant is cited as Misabeni Khosa and Associates; ex facie
this citation the expectation is that this would be a legal
persona
or institution. When regard is had to Annexure “MK2”
attached to the papers herein, where Misabeni Simon Khosa
and
Associates is cited as a (Pty) Ltd, i.e a Limited liability company,
then the above assumption assumes finality. That is why
the
applicant’s founding affidavit allegation
[1]
by its deponent that he is the applicant herein appears
mistaken.
[6]
The applicant’s founding affidavit
[2]
states
that the 1
st
respondent
carries on business at the very site or land in dispute, namely, the
place situated at corner R81 road to Malamulele
and D.3634 road to
Siyandhlani village.
Applicant’s
claim to title to dispute land
[7]
According to the applicant, the land in question was under the
control of the 6
th
and/or
7
th
respondents
in terms of Proclaimation R293 of 1962 made in terms of the Black
Administration Act.
[3]
[8] According to it
further, on 6 January 2015 the 6
th
respondent….
was
ordered to transfer the said site into the applicants names
….
The above allegation is inconsistent with original acquisition of the
land as the 6
th
respondent; Mabunda Traditional Authority
is expected to have had the original right to decide who to allocate
the land to without
being ordered to do so by a court of law first.
[9] The applicant relies
for the above allegation on a Court order by Magistrate Giyani under
case number 1127/2014 which was handed
down on 2 January 2014. It is
marked Annexure ‘MK2” at Folio 18 of the paginated pages
herein. The parties thereto
are Misabeni Simon Khosa and Associates
(Pty) Ltd as the applicant and John Hlungwane Construction and
Projects (Pty) and
Hlengani John Hlongwani as the first and
second respondents respectively.
[10] According to it
further, the land in question –
“…
..
was to be demarcated by COGSTA wherein the demarcation could not take
place as COGSTA officials informed the applicant that same
cannot
take place as there is (sic) construction on site…..
[11] The above translate
into the fact that when the in paragraph 8 herein before process took
place, the applicant had not had
or enjoyed
vaccuo possesio
to the land or site.
[12] The above constitute
the applicant’s high-water-mark as to its claim to right and
title to the disputed land. No document
or proof
aliundi
substantiating the applicant’s claims was furnished. Even
during the argument of this matter the applicant did not produce
any
documentary proof of its allegation.
Respondents’
claim to tittle to the land
[13]
Contrary to the applicant, the first respondent named the disputed
site or land as stand number 1459 A and B, Siyandlani, Giyani.
He
also attached an aerial photograph depicting the full extent of the
property
[4]
.
[14]
According to the 1
st
respondent
further, he has been in peaceful and undisturbed possession of the
property in dispute since 1997 when he applied for
and was granted
permission to occupy same from Siyandlani Traditional Council.
Validation for the grant was to be valid building
plans, which he
submitted to the Traditional Authority.
[5]
He traded as a cement distributor on the site from that period.
[15]
With the evolving post-colonial or post-apartheid dispensation he re
–applied for confirmation of his occupancy rights
to the
property to the then Northern Province Local Government and Housing
Department in May 2001. Approval thereof was granted
to him on 28 May
2001 and written documentation confirming same
[6]
was issued to him. The legality and conformity with legal prescripts
by the business he ran on the property was confirmed by the
Department of Health and Welfare
[7]
.
[16]
After the present political dispensation came into being and during
2006 the Limpopo Provincial Department issued the applicant
with a
“Permission to Occupy” issued in terms of Proclamation
R188 of 1968
[8]
.
[17]
During February 2007 the Siyandlani Traditional Council granted the
1
st
respondent
leave or permission to run a wholesale Liquor Outlet on the property
or site.
[9]
”The business
has been operating on the site from September 2008 to date. Between
then and 2012 further extensions and additional
storage facilities
were added to or on the site and they covered some 1500 square
meters.
[18]
The 1
st
respondent
leased part of the property or business to the 2
nd
respondent
in September 2008 and the latter has been conducting business thereon
by virtue of a substantive lease agreement between
the parties
[10]
to date. During August 2012 Siyandlani Traditional Council granted
the applicant a long-term lease.
[11]
[19]
According to the 1
st
respondent,
the property is fenced. He categorically denied the applicant’s
contention that a wall was being built around
it. To that effect he
attached photographs of the site or property to the papers herein
[12]
EVALUATION
[20] It should be
mentioned that the 3
rd
to 7
th
respondents have
not opposed this application. Thus Court assumes they abide its
ruling at the end.
[21] As already alluded
to above, the applicant is Misabeni Khosa and Associates. However,
the resolution taken authorizing the
deponent of the applicant’s
founding affidavit was taken by Misabeni Khosa and Asscociates (Pty)
Ltd, a limited liability
company. Furthermore, the deponent of the
founding affidavit, Misabeni Khosa, gave himself forth therein as
………………………..
the applicant in this matter.
[22] The above creates
problems for the application and the respondents’ contention
that the founding affidavit is so defective
that it should be struck
out may have substance.
[23] The applicant
referred to a Giyani Magistrates Court order to Misabeni Khosa and
Associates (Pty) Ltd against respondents who
are not the respondents
herein. Unfortunately, that court order cannot affect the orders to
be granted herein: That order was an
interim one. Nowhere in the
papers herein and even during argument of this matter was at alluded
to that the interim order was
confirmed or why it is relevant to this
application. The litigants are different parties to the parties
herein, including the applicant.
[24] The applicant claims
title to the dispute property. Nevertheless, he or it does not even
know what it is named or titled. The
1
st
respondent on the
other hand named and titled the erf.
[25]
According to the applicant, it applied for and was granted business
rights over the disputed land. A look at Annexure “MK4”
[13]
attached to the
applicant’s founding affidavit shows that –
25.1 The site for
which business rights were approved to MK and Associates on 10 June
2016 was site No. 10 at Siyandlani Village.
The 1
st
respondent’s site is 1459 A and B, Siyandlani Village. These
are totally different sites.
25.2 Before that
application for business rights could be finalized, a whole list of
requirements from the Department of Economic
Development, Environment
and Tourism, Energy, Eskom, approval from Greater Giyani
Municipality, Roads Agency Limpopo, Floodline
certificate from a
competent and qualified engineer as well as fire certificate from the
Mopani District Municipality still had
to be supplied.
[26]
Only after the above requirements had been met
[14]
would a permission to Occupy be issued by the Greater Giyani
Municipality to the applicant in respect of site No. 10, Siyandlani.
[26] As against the
above, the 1
st
respondent already has permissions to
occupy to the disputed property.
[27] As against the
above, the 1
st
respondent already has permissions to
occupy to the disputed property.
URGENCY
[28] The respondents
challenged the urgency of the application.
[29] Rule 6 (12) (b) of
the Uniform Rules reds as follows:-
“
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this subrule, the applicant shall
set forth
explicitly the
circumstances which he avers
renders the matter urgent and the reasons why he claims that he could
not be afforded substantial relief
or redress at a hearing in due
course.”
[29]
In
Luna
Meubels Vervaardigers v Makin and Another
[15]
degress
of urgency were set out as follows:
[16]
“
1.
The
question is whether there must be a departure at all from the times
prescribed in Rule 6 (5) (b). Usually this involves a departure
from
the time of seven days which must elapse from the date of service of
the papers until the stated day for hearing. Once that
is so, this
requirements may be ignored and the application may be set down for
hearing on the first available motion day but regard
must still be
had to the necessity of filing the papers with the Registrar by the
preceding Thursday so that it can come onto the
following week’s
motion roll which will be presided over by the Motion Court Judge on
duty for that week.
2.
Only if the matter is so urgent that the applicant cannot wait for
the next motion day, from the point of view of his obligation
to file
the papers by the preceding Thursday, can he consider placing it on
the roll for the next Tuesday without having filed
his papers by the
previous Thursday.
3.
Only if the urgency be such that the applicant dare not wait even
for the next Tuesday, may he set the matter down for hearing in
the
next Court day at the normal time of 10:00 a.m or for the same day if
the Court has not yet adjourned.
4.
Once the Court has dealt with the cases for that day and has
adjourned, only if the applicant cannot possibly wait for the hearing
until the next court day at the normal time that the court sits, may
he set the matter down forthwith for hearing at any reasonably
convenient time, in consultation with the Registrar, even if that be
at night or during a weekend.”
[30]
The urgency required for a matter to be heard in Court pursuant to
Rule 6 (12) must be genuine and not contrived or self-created.
The
urgent court is not the court to decide complex legal and factual
issues. It is a court that ensures that in cases of emergency
the
chance of either party suffering irreparable harm is reduced to a
minimum pending the final determination of the case as a
whole
[17]
.
[31] The applicant has
not set out enough or cogent facts and circumstances that would have
normally justified this matter to be
decided or heared in the urgent
court. That regardless, unexpected factors interceded that caused
this matter to be dragged out
without urgency being decided: On 28
September 2016 the Judge President of this division postponed the
matter for certain issues
to be done. That was after the applicants
on their own and on 19 September 2016 removed it and re-enrolled it
on 27 September 2016
earlier. As a result, the matter cannot be
urgent even if initially it was (which is not the case here
nonetheless.)
[32] The parties were
asked to argue the matter’s merits.
[33] As already alluded
to, the applicant has argued from the air, without producing any
written confirmation of his allegations
whereas the 1
st
respondent submitted and backed his submissions with documentary
proof.
[34] The applicant does
not even know what the citation or number of his alleged site or land
is. The respondent named it and backed
it up with aerial photos and
other documents.
[35] The applicant avers
without proof or substantiation that he is the owner. The 1
st
respondent backed his claim with documents from the Siyandlani
Traditional Council, the Northern Province Government, Limpopo
Government and other relevant Government Department and institutions.
As a result from the totality of the circumstances herein,
the
respondents’ version of events is more probable. In short, the
applicant has not made out a case for the grant of the
prayers that
he be declared the lawful owner or possessor of the disputed
property.
[36] The applicant
submitted without any substantiation that he was in possession of the
property when he was despoiled. However,
he does not gain- say the
1
st
respondent’s allegation or averments that he was
granted the use and possession ever since 1997 to date. Worse still
for
the applicant, its version is also that it would only be issued
with a permission to occupy upon it satisfying the requirements
listed by the Greater Municipality in their letter dated 10 June
2016. This too, is inconsisted with the truth when the applicant’s
version is anything to go by.
CONCLUSION
[37]. After weighing and
evaluating all points relative hereto, this application was and is
not urgent. However, as argument on
the merits was allowed, the
matter will be decided as a whole.
[38]. The Applicant has
not made out a case for the grant of the interdict. It has not proved
a clear or
prima facie
right. As such its
locus standi
to aks for relief as it did is non-existent. There is no evidence
that the land in dispute was ever allocated to it (the applicant).
On
the other hand, the 1
st
respondent has proved that he was
properly allocated the disputed land by various authorized instances
including Government Departments
as well as the Traditional Council
in charge.
[39] Consequently, the
applicant’s application stands fail.
COSTS
[40] The applicant has
sought and argued for an order of costs on a punitive scale as
between attorney and client against those
respondents who opposed its
application.
[41] The 1
st
respondent submitted that the application is ill-thought capricious
and an abuse of court process that should be punished with
a punitive
costs order.
[42] The issue of which
costs order to follow a result in any litigation is within the
discretion of the trial Court.
[43] The nature of the
applicant’s claims are such that they lacked merit. Worse
still, it brought the application on urgent
basis without stating the
grounds that justify that.
[44] Indeed the
applicant’s conduct was ill – thought, capricious,
mendacious and an abuse of court process. Such conduct
must me
punished with an order of costs on a punitive scale.
ORDER
[45] The following order
is made;
46.1. The application is
dismissed with costs on a scel as between attorney and client.
[1]
At paragraph 1.2 thereof at Folio 6 of
the paginated pages herein.
[2]
Paragraph 2.1 at folio 6
[3]
Act 38 of 1927, as amended
[4]
Annexure “LC2”
to the paginated paper at Folio 68
[5]
See annexure “LC3)
at Folio’s 69 and 70 of the paginate paper herein.
[6]
Annexure “LC4” ans ‘LC5”
at Folios 71 and 72 of the paginated papers.
[7]
See Annexure “LC6” at
Folio 73 of paginated pages.
[8]
Annexure ‘LC7”
at Folio 74 of paginated pages.
[9]
Annexure “LC9” at Folio
78 of paginated papers
[10]
See Annexure “LC10” at
Folios 79 -87
[11]
See Annexure ‘LC11” at
Folios 88 - 96
[12]
Annexure ‘LC14.1 -14.14 at
Folio’s 97 -115
[13]
At Folio 22 if paginated pages
[14]
Folios 22 and 23, Annexure “MK4’
[15]
1977 (4) SA 135 (W)
[16]
At 137 A - E
[17]
See Twentieth Centuary Fox Film
Corporation v Anthony Black Fils (Pty) Ltd
1982 (3) SA 582
(w); IL &
B marcow Caterers (Pty) Ltd v Creatermans SA Ltd & Ano
1981 (4)
SA 108
( C)