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[2016] ZALMPPHC 4
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Mahlaba N.O v Greater Tzaneen Municipality (142/2016) [2016] ZALMPPHC 4 (24 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
No: 142/2016
DATE:
24 JUNE 2016
In
the matter between:
RIBYE
CHARLES MOHLABA
(N.O)
.............................................................................
APPLICANT
(In
his capacity as Chairman of Nkuna
Traditional
Council)
And
GREATER
TZANEEN
MUNICIPALITY
....................................................................
RESPONDENT
CORAM:
M MADIMA AJ
JUDGMENT
M
MADIMA AJ
[1]
The Applicant, in the representative capacity as the chairman of
Nkuna Traditional Council, a duly constituted structure which
represents the Nkuna community, launched motion proceedings as urgent
basis.
[2]
The Respondent is the Municipality …………….
Based in the area when the Applicant is domiciled.
BACKGROUND
[3]
The was at the outset brought before the High Court, Gauteng
Division, Pretoria, on urgency. The High Court, Pretoria per my
sister Madam Justice Mali, granted the Applicant interim relief with
an order that the Applicant should, not later than the 30
th
day of January 2016 at 12H00 bring application before the appropriate
Court, this Court with jurisdiction. The Applicant obliged.
[4]
Before me the parties are ad idem that the urgency of the case had
been preceded by the events and that the matter should be
handled
with in the ordinary way.
FACTUAL
MATRIX
[5]
The Appellant (Nkuna Tribal Community) alleges that it is the holder
of informal rights over the Farm-Mohlaba’s location
LT
(hereinafter
referred to as “Erf 657 LT”) and had been in occupation
thereof far more than a century. This is disputed
by Respondent.
(verify on date of judgment –correct title No657 or 567).
[6]
In 2001, the property was donated and transferred to the Respondent
by then Department of Land Affairs in terms of …………………………..Act
(check Act that allows such donation). Thus with effect from 2001,
the Erf 657’s ownership was transferred to the Respondent.
Applicant avers that such transfer was done without consultation with
members of Nkuna community. Para 6.: The Erf 657 is currently
been
developed with residential sites put on sale or evidenced by the bid
which wad advertised.
[7]
Consequent upon transfer of the above Erf 657 to the Respondent,
there arose disputes, which culminated in the holding of several
meetings between the parties in the vain hope that amicable
solutions, would be found. Applicant addressed letters of envisaged
legal proceedings, to Respondent, Co-operative, Governance, Human
Settlement & Traditional Affairs and Department of Rural
Development and Land Reform.
[8]
The Applicant invites the Respondent to meet a case in terms of which
Applicant seeks:
“
1…..
2.
Quoute
3.
Quoute
And
ancillary relief.
In
short the case of the Applicant is disputed.
[9]
POINTS IN LIMINE
Respondent
raised three points in limine in opposing affidavit but in its heads
of arguments and presentation of argument before
me, abandared a
point of “prescription” The remaining points in Limine.
NON-JOINDER
[10]
At common law a party seeking to raise a point of non-joinder shout
at least place argument which proves that the third party
or parties
not joined to the proceeding do not only have interest in the
case(see Judicial Service Commission v Cape Bar Council
2013(1) SA
170 (SCA) at 1761-177A) but that their interest is : (a) direct, and
(b)
Substantial in the issues to be adjudicated by Court. (see Aquator
(Pty) Ltd v Sacks and Others 1989(1) SA 56 of (A) at 62 A-E,
In re
Boe Trust Ltd and Others MNO 2013(3) SA 236 (SCA) at 241 H-I)
The
principle has over a period of time been followed at different
divisions of the High Courts, the SCA still find it, in different
decisions to be good law to date.
[11]
The Appellant arguest that not citing ….(Refer to para 7 to
get names of parties not cited) is fatal to the case of
the
Applicant. I express my own disclaimer on this point.
It
is so that the state institutions which the Applicant alleges that
they should have been cited have some interest in the case.
The
property is undergoing some developments at the expense of public
money, and that, without going a step further attracts their
interest
in the issues. However the question that remains to be answered is,
that is the interest direct and substantial in the
issues before
Court?
In
Amalgamated Engineering Union v Minister of Labour 1949(3) SA 637 (A)
at 657, Fagan A.J.A discussed the topic of interests of
third parties
in the issues of a care and referred also to the case of Tshandu v
Swan and Another (1946, A.D.10) when the following
happened: This was
an appeal when “a nature claimed that he was the lawful
permit-holder in respect of certain stands in
a location owned by the
municipality. He had cited as defendants:(1) the manager of the
Council’s Non-European Department,
hwo had authorised the
location superintendent to transfer the stands to another native,(2)
the superintendent who had transferred
them, and (3) the transferee.
Held: that it was not necessary to join the Council, belonged to the
Council, was regulated by statute
and statutory regulations and the
Council therefore had “no real interest” in the issues
“no proprietary interest…
which required to be protected
by a joinder Court was asked to make being “ a matter of no
moment to the Council.”
[12]
I deem it opposite by way of paraphrasing the notice of motion
prayers of the Applicant to state that the Applicant seeks to
tentatively prohit Respondent from alienating or leasing out
residential sites situated in Erf 657 TT and an order suspending
adjudication of bid no. SCMU 38/2015. The Erf………………..in
question is not property of the
Respondent and the development in the
property as being by the Respondent.
The
Applicant does not seek relief from the aforesaid state institutions.
The facts
in casu
are similar to the case in Tshandu v Swan and Another supra and
I do not find, therefore purposes of this application, an
omission to
cite or join above organs of state to be fatal to the case of state.
Argument in this regard lacks substance and I
therefore reject it in
toto.
LOCUS
STANDI
Ad
para [13] under Locus standi
[13]
A party instituting Court proceedings been the onus to prove that it
has locus standi and that should be specifically alleged
and Court
papers (see Mars Incorporated v Candy World (pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
at 575 H-I,
LOCUS
STANDI
[14]
In his papers including cover pages of Court states in no unclear
wording that he deposes to Court papers in his representative
capacity as the chairman of Nkuna Traditional Council.
[15]
In his argument, counsel for the Respondent raises a point, which,
rightly so, is not gainsaid by the counsel for Applicant
that the
Applicant does not prove on balance of probabilities that he was
sanctioned, through a resolution of the meeting, by the
tribal
council to bring this application before court.
[16]
Counsel for Applicant conceded that omission to cite the Applicant as
both acting in personal and representative capacities
was an
oversight. Regrettably, this is a mistake that proves fatal and of
this state of the development of the case, such a mistake
cannot be
undone save to face the consequences of such omission.
[17]
I am persecuted that the Applicant does not have
locus standi
to bring an application on behalf of Nkuna Tribal Council. To my mind
the application falls to fail and I therefore make the following
order:
1.
The Application is struck off the roll with costs.
M
MADIMA AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on : 21 June 2016
Judgment
delivered on : 24 June 2016
Counsel
for Applicant : Isaiah Nyathi
Instructed
by : Mohlaba & Moshoana Incorporated
Counsel
for Respondent : TT Magabe
Instructed
by : Magabe Incorporated