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[2016] ZAKZDHC 56
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Madlala and Others v Senzo Edward Mchunu, MEC for Education, KZN and Others (7311/2012) [2016] ZAKZDHC 56 (14 December 2016)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO:
7311/2012
MBONGENI THAMSANQA
MADLALA
1
ST
APPLICANT
NTOMBIFIKILE MARRIAM
SIBIYA
2
ND
APPLICANT
RAYMOND
MPUMELELO MSOMI
3
RD
APPLICANT
REGINALD
MFEKA
4
TH
APPLICANT
NOZIPHO
BEATRICE
ZWANE
5
TH
APPLICANT
ANGELINE
NTOMBIZODWA MZINYANE
6
TH
APPLICANT
And
SENZO
EDWARD MCHUNU, MEC FOR EDUCATION, KZN
1
ST
RESPONDENT
DEPARTMENT OF EDUCATION
KZN
2
ND
RESPONDENT
Intervening
Respondents
MANGANGENI EMMAUS
WESTMEAD RETURNERS
COMMUNITY
TRUST
3
rd
RESPONDENT
MUNTOZWAYO SOLOMON
PHEWA
4
TH
RESPONDENT
BOBO ATHANASIUS MOBHOZI
5
TH
RESPONDENT
THEMBl AMMACLETTAJ MBILI
6
TH
RESPONDENT
HENDRY
SANDILE
HLENGWA
7
TH
RESPONDENT
SIZAKELE
PAULIN A
MOLEFE
8
TH
RESPONDENT
JUDGMENT
DELIVERED
ON: 14 DECEMBER 2016
MNGADI
AJ:
[1] The six applicants
in their capacity as trustees of a trust seek confirmation of a rule
nisi initially brought against
first and second respondent in the
following terms :
(i)
Staying
the building of Tshelimnyama Primary School,
(ii)
Directing
removal of equipment or other movable items utilised in order to
commence the building of the Tshelimnyama Primary School,
(iii)
Interdicting
respondents from trespassing on any land belonging Mangangeni Emmaus
Westmead Returners Community Trust.
[2]
The applicants are the Trustees of Manganeni Emmaus Westmead
Returners Community Trust.
The first respondent is the MEC for
Education in KwaZulu-Natal and the 2
nd
respondent is the
KwaZulu-Natal Department of Education.
Westmead Returners' Community
Trust.
[3]
The 1st applicant in the founding affidavit stated that the
applicants were duly appointed
Trustees of Mangangeni Emmaus Westmead
Returners' Community Trust (the trust). He stated that the trust was
formed on or about
4 April 2002 with the object of, inter alia, to
acquire land, hold, and developing, improving and managing such land
in common
for agricultural, commercial and residential purposes for
the benefit of its members.
[4]
The 1
st
applicant stated that in violation of the rights of the
beneficiariesof the Trust, the 1
st
and 2
nd
respondents have arranged to build Tshelimnyama Primary School (the
school) on the privately owned land of the trust. Despite objections,
the 1
st
and 2
nd
respondents have continued with the levelling of the land in
question, demarcated the building area and have dug trenches on the
land. The land in question was earmarked by the applicants for the
construction of a housing project for the beneficiaries of the
Trust.
[5]
The 1st and 2
nd
respondents stated that they were initially not aware that the site
in question was owned by the Trust not the KwaZulu-Natal Provincial
Government. Having appointed a construction company to commence the
building of the school, it was brought to their attention that
the
site was owned by the trust. They later held a meeting in which the
trustees for permission to build a primary school on the
site, and
the necessary permission was granted with an undertaking that a
formal written agreement will be concluded as envisaged
in Section 14
(1) of the South African Schools Act, 1996, (Act No 84 of 1996) .
Later, it transpired that there was a dispute as
to who were
legitimate trustees of the trust. The building of the school was for
the benefit of the beneficiaries of the trust.
The applicants in
reply stated the persons who granted the permission had been removed
as trustees of the trust.
[6]
An application to intervene seeking an
order to join 3
rd
,
4
th
,
5
th
,
6
th
,
7
th
and 8
th
respondents (joined respondents) as co-respondents in the application
was launched. The basis of the joinder as co-respondents
was that the
persons who sought the joinder were the legitimate trustees of the
trust not the applicants. The application to intervene
was granted
except the part seeking an interdict. The joined respondents stated
that applicants were not the legitimate trustees
of the trust. They,
in their capacities as trustees of the trust, granted consent to the
respondents for the building of the school
on the site in question.
Further, that in their capacities as legitimate trustees of the trust
ratified the granting of permission
to 1
st
and 2
nd
respondents to build the school.
[7]
At the commencement of the hearing
applicants counsel handed in a document titled "ORDER PRAYED".
She stated that she
was handing in the document to be the order the
applicants were praying in the place of the order prayed for in the
notice of motion.
Counsel for 1
st
and 2
nd
respondents objected to the handing in of the document in that it was
not in accordance with the rules of court and that it was
referring
to payment of compensation as damages and payment of rent for
building the school on the land belonging to the trust.
Counsel for
3
rd
to 8
th
respondents also objected to the handing in of the document. The
court ruled that the document could not be handed in that manner
which not in accordance with the rules of court relating to amendment
of pleadings. I refused to take into consideration the document
in
any manner.
[8]
It was common cause at the hearing
between the parties that the 1st and 2nd respondents have built the
school to completion. The
school was opened in July 2015 and it is
currently in operation.
Application
to amend
[9]
After the intervention of the joined
respondents was granted, the joined respondents applied to amend the
order prayed in the notice
of motion deleting paragraphs 1(b), (c),
(d) and 2 and substituting therefor the following:
1)
The
4
th
to 8
th
Respondent (joined applicants) are the lawful trustees,
2)
The
other applicants are interdicted and restrained from dealing with
assets of the Trust ,
3)
(3)
Main application be dismissed with costs.
Applicants
in the main application as well as 1st and 2nd respondents objected
to the proposed amendment. The essence of the amendment
is to obtain
a relief in the form of a declaratory order of who the lawful
trustees of the trust are.
[10]
The granting or refusal of an application for the amendment of a
pleading is a matter for the
discretion of the court, to be exercised
judicially in the light of all the facts and circumstances before it.
Amendments will
always be granted unless if it would cause an
injustice to the other side which cannot be compensated by costs or
unless the parties
cannot be put back, for purposes of justice, in
the same position as they were when the pleading which is sought to
amend was filed.
It must be shown that it is in the interest of
justice to amend the pleading.
[11]
An amendment, if allowed, which would
not facilitate the determination of the real dispute between the
parties and would be inconsistent
with the declaration cannot be
allowed. The primary object of the amendment must be to obtain a
proper ventilation of the dispute
between the parties. (See
Herdennych v Colonial Mutual Life Assurance Society Ltd
1920 CPD 67
at 70; Trans-Drakensberg Bank Ltd (under judicial management) v
Combined Engineering (Pty) Ltd
1967 (3) SA 632
(D) at 637A-641C)
[12]
Rule 28 of the Uniform Rules regulates
amendments of pleadings. It consolidates the procedure relating to
amendment of pleadings.
The joined respondents seek to amend the
notice of motion. The proposed amendment is opposed by applicants who
instituted motion
proceedings. The proposed amendment has the effect
of replacing relief prayed for in the notice of motion with relief
sought by
the joined respondents. It causes an embarrassment to the
applicants. The new relief results in involving the 1
st
and 2
nd
respondents in the dispute between the joined respondents and the
applicants which will result in a long drawn litigation. There
is no
provision in rules for a party to amend a pleading of his opponent.
[13]
The point of determining what is the
real dispute is before the amendment. The amendment sought must be to
properly ventilate the
real dispute prior to the amendment. It was
found that the intervening respondents be joined as they had a real
and substantial
interest in the dispute between the applicants and
1st and 2
nd
respondent in the sense that they claimed to be the lawful trustees
of the trust in whose land the school was being built..
[14]
The joined respondents have no issue
with the 1
st
and 2
nd
respondents. They support the 1st and 2nd respondents against the
applicants. They aver that in their capacities as trustees of
the
trust they gave permission to the 1
st
and 2
nd
respondents to build the school in the site in question. The sought
amendment seeks to place the issue between the joined respondents
and
the applicants as the real issue in dispute, the resolution of which
will facilitate the resolution of the real issue between
the
applicants and respondents.
[15]
The issue between the applicants and the
1
st
and 2
nd
respondents, before the joined respondents were joined, was whether
the 1
st
and 2
nd
respondents were acting lawfully by building a school on a site owned
by the trust, if not, whether the applicants were entitled
to obtain
an interdict interdicting and restraining the 1st and 2
nd
respondents from building in the site in question.
[16]
The intervention of the joined
respondents related to protecting their interest in the issue between
applicants and 1
st
and 2
nd
respondents. It was not meant to seek to resolve the issues of
dispute between the applicants and the joined respondents.
[17]
The building to completion of the school on the site has caused the
issue between the applicants and
the 1
st
and 2
nd
respondents to fall away. It has been rendered moot. The granting of
the amendment will result in a new issue in dispute replacing
the
issue that has been rendered moot. It will not ventilate the original
issue but it will replace the original issue. Consequently,
the
amendment cannot be allowed. The application for amendment falls to
be dismissed with costs. .
[18]
The applicants seek an order
interdicting the 1
st
and 2
nd
respondents. An interdict is appropriate only when future injury is
feared. Where the wrongful act causing an injury has already
occurred, either it must be of a continuing nature or there must be a
reasonable apprehension that it will be repeated. If the
infringement
is one that
prima facie
appears
to have occurred once and for all, then the applicant fails in
establishing a reasonable apprehension that the harm is likely
to be
repeated. (See Phillip Morris Inc. v Marboro Shirt Co. SA Ltd
1991
(2) SA 720
(A) at 7358)
[19]
The point of whether an injury has
occurred, is likely to occur or is continuing to occur is at the time
the court is called upon
to determine whether to grant an interdict
or not. The school was built to completion and opened in July 2015.
The litigation commenced
in August 2012. The joined respondents were
granted leave to intervene in June 2013.
Application
to join others as applicants and for an interdict
[20]
The joined respondents on 26 March 2016
filed an application in the form of a
rule
nisi
as a joinder/interdict
application. They sought an order in the following terms:
1)
Joining
Goodenough Sithembiso Mngadi,
Thamsanqa Blessing Khuboni, Jeanete Nomusa Hlongwa and Cabangani
Fredoline Mota
as co-applicants in
the main application,
2)
To
interdict the said persons and applicants from acting as trustees of
the trust,
3)
Declaring said persons and applicants
not trustees of the trust,
4)
Declaring
the join applicants the lawful trustees of the trust.
The joined respondents prayed that
2) and 3) above be ordered to operate an interim order with immediate
effect.
[21]
The motivation for the application was
that the said persons and the applicants in the main application had
been issued with letters
of authority by the Master as trustees of
the trust and were acting as such but in fact they were not the
lawful trustees of the
trust. The
rule
nisi
in earlier proceedings was
issued including an order that prayers 2) and 3) operate as an
interim interdict.
[22]
The object of the joinder/interdict
application is apparent from the orders sought. The said persons were
sought to be joined not
because it was necessary to join them for
purposes of the main application. It was for the convenience of the
joined respondents
to have the joined respondents declared lawful
trustees and have applicants and the said persons interdicted from
acting as trustees.
Where the joinder is sought on the basis of
convenience the court has discretion to grant the joinder. It is a
prerequisite that
the right to relief is dependent upon determination
of substantially the same question of law or fact. The relief sought
in the
main application having become moot, there is no relief
dependent on the same question of law or fact that remains to be
determined.
Even if the issue of the
locus
standi
of the applicants has to be
determined, once the interdict cannot be granted because the building
of the school has rendered the
issue moot, it becomes, for purposes
of these proceedings, not necessary to make a decision on the issue
of
locus standi
of
the applicants. It follows that the application for joinder of the
said persons and an interdict falls to be dismissed. (See
Vitorakis v
Wolf
1973 (3) SA 928
(W) at 931; Rule 10(1) Uniform Rules)
[23]
The school had been built to completion
and became operational in July 2015. The application for joinder/
interdict was brought
by the joined respondents when they knew that
the question of interdicting the building of the school had become
moot. It follows;
the rule nisi ought to be discharged with costs.
Costs
[24]
The 1
st
and 2
nd
respondents, despite the pending litigation, proceeded to build the
school. There was no interdict against them not to do. An attempt
to
obtain an interim interdict against them had failed. There is no
dispute relating to the need for a school and that it was for
the
benefit of the community. The intervention of the joined respondents
meant that the litigation might be drawn out. The joined
respondents
supported the building of the school. The issue raised in the main
application remains unresolved. The need to resolve
it on merit has
fallen away due to subsequent events.
[25]
The applicants opposed the building of
the school on the land owned by the trust on the basis that it was
without the consent of
the trust. The 1
st
and 2
nd
respondents did not have any written agreement with the trust
relating to the building of a school on land belonging to the trust.
The issues for determination fell away due to no fault on the part of
the applicants. Although the applicants have not succeeded,
it is not
on merits. It will be unfair to order them to pay costs of any party.
The joined respondents have been found to have
substantial interest
in the dispute between the applicants and the 1
st
and 2
nd
respondents. That dispute on merits remains unresolved. The need to
resolve it in these proceedings has been rendered unnecessary
due to
subsequent events.
[26]
The purpose on an award of costs is to
indemnify a successful litigant for the expense to which he has been
put through having been
unjustly compelled to initiate or defend
litigation. (See Fexas Co (SA) v Cape Town Municipality
1926 AD 469
at 488),
In
the result I order as follows:
a)
the application to amend is refused. The
4
th
to 8
th
respondents (both inclusive) are ordered to pay costs jointly and
severally, the one paying the others to be absolved.
b)
The
rule
nisi
to join others as applicants
and the interdict relating thereto is discharged with costs. The
fourth to eight respondents (both
inclusive) are ordered to pay costs
jointly and severally, the one paying the others to be absolved.
c)
The
rule
nisi
issued in the main application
is discharged. No order as to costs.
MNGADI AJ
APPEARANCES
Case
Number
:
7311/2012
Applicants
: MT Madlala + 5
others
Represented
by
: J Gates
Applicant's
Attorneys
: MW Ngcobo
1
st
& 2
nd
Respondent
: MEC for
Education & Department of
Education, KwaZulu-Natal
Represented
by
: M. Nqala
3
rd
to 8
th
Respondent
: Mangangeni Emmaus
Westmead
Returners Community Trust & 5 others
Represented
by
: M. E Mbhele
1
st
& 2
nd
Respondent's Attorney
: State
Attorney: KwaZulu-Natal
3
rd
& 8
th
Respondent's Attorney
: M.E Mbhele &
Co. 031 701 0271
Date
of Hearing
: 25 November 2016
Date
of Judgment
: 14 December
2016