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[2016] ZAGPPHC 111
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Nel and Another v Sello and Others (86558/2014) [2016] ZAGPPHC 111 (29 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG DIVISION, PRETORIA
)
CASE NO: 86558/2014
DATE: 29/3/2016
Not reportable
Not of interest to other judges
Revised
IN THE MATTER BETWEEN
WILLEM PETRUS
NEL FIRST
APPLICANT
AFRIFORUM
NPC SECOND
APPLICANT
AND
SELLO FIRST
RESPONDENT
THABO SECOND
RESPONDENT
KHUTSO THIRD
RESPONDENT
HAPPY
SKOHOSANA FOURTH
RESPONDENT
THE UNLAWFUL OCCUPIERS:
(The remaining extent of farm Bultfontein
107) FIFTH
RESPONDENT
THE COMMANDING OFFICER:
HAMMANSKRAAL POLICE
STATION SIXTH
RESPONDENT
THE CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY SEVENTH
RESPONDENT
THE MINISTER: HUMAN
SETTLEMENTS EIGHTH
RESPONDENT
THE MINISTER OF
POLICE NINTH
RESPONDENT
PLASTIC PACK (PTY)
LTD TENTH
RESPONDENT
UNIVERSAL PULSE TRADING 367 (PTY)
LTD ELEVENTH
RESPONDENT
JUDGMENT
MSIMEKI, J
INTRODUCTION
[1] There are three applications in this matter. The main
application has been brought by Mr Willem Petrus Nel.
Mr Nel ("Nel"), in the main application, seeks an
order restraining first to fifth respondents from enticing,
instructing,
encouraging persons to invade or unlawfully occupy any
portion of the remaining extent of the farm Bultfontein 107 in
Gauteng
Province held by Deed of Transfer T39946/2014 ("the farm").
There are other related prayers. In respect
of sixth
respondent Mr Nel seeks an order "authorising and directing
the sixth respondent and in general the South
African Police
Services to do everything reasonably necessary to prevent any further
persons from unlawfully entering upon and/or
claiming portions of the
farm and/or clearing, erecting structures or constructing on or doing
anything to invade the farm".
The application was brought
ex parte
and on an urgent basis. The main application is
opposed. The second application concerns a Rule 30 application
which
has been brought by sixth respondent. Second applicant
gave notice of its intention to oppose the Rule 30 application.
The third application concerns the joinder of ninth, tenth and
eleventh respondents. Sixth respondent gave notice of his
intention to oppose the application in so far as it concerns the
Minister of Police. Other than filing the notices to oppose,
second applicant and sixth respondent filed no answering affidavits
relating to the Rule 30 application and the joinder application.
BRIEF FACTS
[2] Nel contends that he, for the past twenty years and more, has
been living on the farm. Soetdoringrand Beleggings (Pty)
Ltd,
according to Nel, owned the farm. A certain Boshof and
Van Eden were directors of the company. They
did farming
on the farm until they stopped because they feared for their lives.
The two directors asked him to occupy the
farm, to farm and to
protect the farm from neglect and criminal conduct. He then
farmed with 500 Brahman cattle, some
fifteen lions and three
tigers. Boshof and Van Eden, during 2006, sold the farm to
Absa Property Development (Pty) Ltd
("Absa"). The
idea behind the deal was that Absa would develop the farm and build
low cost houses. This did
not materialise. The farm,
according to Nel, during 2014, was sold to Plastic Pack (Pty) Ltd.
It appears that
Universal Pulse Trading 367 (Pty) Ltd could now
be the owner. This is not very clear.
Second applicant brought an application seeking an order allowing it
to join the application as second applicant. This application
was granted. Second applicant, after sixth respondent had filed
his answering affidavit, filed a replying affidavit.
Sixth
respondent then filed a notice in terms of Rule 30 calling on second
applicant –
"to either withdraw its replying affidavit and its notice
of motion or to rectify the irregular step or steps and to
comply
with the applicable provisions of the Uniform Rules and the State
Liability Act within five (5) days hereof, failing which
the sixth
respondent will approach the above honourable court for an order to
set aside the following documents:
5.1 the replying affidavit; and
5.2 the application of 15 May 2015 with costs."
The application of 15 May 2015 relates to the joinder of ninth, tenth
and eleventh respondents. Second applicant did not
comply with
the notice. Sixth respondent then brought an application in
terms of Rule 30. Second applicant did
not file an
answering affidavit.
[3] Sixth respondent's application seeks an order:
1. to the extent necessary, condoning the late filing of the sixth
respondent's application in terms of Rule30 of the Uniform Rules
of
Court ("the Rules");
2. setting aside the second applicant's replying affidavit;
3. directing the second applicant to pay the costs of this
application;
4. further and/or alternative relief.
[4] Sixth respondent's application is accompanied by a supporting
affidavit of Ms Nangamso Qongqo, a senior State Attorney
representing sixth respondent. She, in her affidavit, deals
with the Rule 30 application and second applicant's reply to
sixth
respondent's answering affidavit. In the affidavit, the
deponent summarises the history of the matter. This is
that on
5 December 2014 first applicant obtained the
rule nisi
returnable on 22 January 2015. The rule has been extended
several times. Sixth respondent was affected by the
rule as
shown above. On 21 April 2015 sixth respondent filed his
answering affidavit resisting confirmation of the rule.
First
applicant did not reply to sixth respondent's answering affidavit.
Second applicant was joined as a party as shown
above. Second
applicant then filed its replying affidavit referred to above.
The replying affidavit was received by
sixth respondent on 7 May
2015. On 15 May 2015 second applicant caused to be
delivered an application in terms
of which it sought to have ninth,
tenth and eleventh respondents joined in the proceedings as parties.
Sixth respondent on
11 June 2015 gave applicants notice in terms
of Rule 30 notifying them that the replying affidavit
constitutes an irregular
step as contemplated in Rule 30.
The affidavit explains why the step is irregular.
Inter alia
,
the deponent explains that the replying affidavit does not comply
with Rule 6(1) read with Rule 6(5)(e) of the Uniform Rules
of
Court as it has not been accompanied by a founding affidavit laying
the basis for the relief sought against sixth respondent.
The
document, according to the deponent, seeks to provide a reply on
behalf of first applicant who, in these proceedings, is a
party in
his own right. The deponent further contends that the
document is replete with opinions and inadmissible hearsay
evidence.
Examples are provided.
[5] Regarding the application to join ninth, tenth and eleventh
respondents, the deponent contends that a notice, by sixth
respondent,
was given to second applicant telling it that the
delivery of the application dated 15 May 2015 constituted an
irregular step.
This, because the application was an endeavour
"to fix the first applicant's problem at the tail end of the
first applicant's
case" as first applicant's affidavit
"contravened the provisions of the
State Liability Act 20 of
1957
by failing to cite and/or join the Minister of Police".
Further, that was also an endeavour to "fix first applicant's
defective founding affidavit which failed to disclose first
applicant's
locus standi
". In an attempt to solve part of
the problem, so it was further contended, second applicant also tries
to join the "purported
owner of the farm", the tenth and
eleventh respondents. Second applicant, according to sixth
respondent, did not heed sixth
respondent's complaints.
[6] Adv J G C Hamman ("Mr Hamman"), for second applicant,
submitted that the court granted an order on 8 September 2015.
Paragraphs 2 and 3 thereof read as follows:
"2. Any respondent, including the Minister of Police, if he so
wishes to oppose, must file their respective answering affidavit/s
in
the joinder application or file their notice/s in terms of
Rule
6(5)(d)(iii)
within 15 days after date of this order;
3. In the event that any party mentioned in prayer 2 above fails to
file its answering affidavit/s in the joinder application or
fail to
file its notice in terms of
Rule 6(d)(d)(iii)
(
sic
) within 15
days after date of this order, the second applicant will be entitled
to proceed with the joinder application on an unopposed
basis on 27
October 2015."
The issue of costs was reserved.
[7] Mr Hamman further submitted that a
Rule 30
notice ought to have
been served on all the parties. What is clear is that the
Rule
30
notice was served on first and second applicant. At any rate
these are the parties affected by the
Rule 30
notice.
[8] Mr Hamman further submitted that the
Rule 30
notice was served
way out of time. Informed that there was an application for
condonation, he responded by saying that the
condonation only related
to the
Rule 30
notice and not the answering affidavit referred to in
paragraphs 2 and 3 of the court order dated 8 September 2015.
His submission seems to be correct. There is no answering
affidavit by sixth respondent in respect of the joinder application.
Even if the condonation application covered the joinder application,
this would, in my view, not assist sixth respondent in the
absence of
the answering affidavit. Sixth respondent's answering affidavit
in the court file relates to the main application
only. At any
rate the answering affidavit is dated 16 April 2015 while the court
order is dated 8 September 2015.
[9] Ms Qongqo's affidavit indeed deals with the necessary
condonation relating to the
Rule 30
application. It seeks
condonation for the late filing of the application in the event that
the court is of the view that
the
Rule 30
application has been filed
late. Mr Hamman, by submitting that the condonation
application only had something to do
with the
Rule 30
application, in
my view, was conceding that such an application indeed existed.
Ms Qongqo, in her affidavit, explained
that the parties had an
understanding though "not documented" that "all the
applications would be heard together".
This, according to
her, delayed the bringing of the
Rule 30
application which all the
parties are aware of. The reason advanced, in my view, is
understandable and acceptable.
Condonation for the late filing
of the
Rule 30
application is accordingly granted.
[10] As alluded to above, second applicant failed to file an
answering affidavit in the
Rule 30
application. Sixth
respondent too failed to file an answering affidavit in the joinder
application.
[11] Second applicant merely filed a replying affidavit. This
you do once you have filed a founding affidavit.
This,
second applicant did not do. Nowhere does second applicant
expressly join forces with first applicant who filed a founding
affidavit. At least one would have expected second
applicant to file an affidavit or say in an affidavit that it aligns
itself with the contents of first applicant's founding affidavit and
therefore making first applicant's founding affidavit, its
affidavit. Apart from the fact that second applicant has been
joined as second applicant, second applicant seems to be acting
independently from first applicant. Catharina Cornelia
Cooks, deponent to second applicant's affidavit, in her affidavit,
states that she is employed by second applicant and that she is "duly
authorised to depose to this affidavit on behalf of
the second
applicant". She does not incorporate first applicant's
affidavit into her own affidavit and thereby making
the affidavit
second applicant's affidavit. Her affidavit is not a
confirmatory affidavit either. It is not surprising
that
Mr Mokotedi for sixth respondent submitted that, without any
basis, second applicant filed a replying affidavit.
This
approach, in my view, is not proper. Mr Mokotedi's
submission as well as sixth respondent's contention, have merit.
Second applicant's replying affidavit should be set aside.
[12] Coming to the joinder application, sixth respondent did not file
an answering affidavit as directed by the court on 8 September
2015.
All sixth respondent did was to file a notice of opposition to the
joinder application. This is insufficient.
The founding
affidavit in the joinder application stands uncontroverted. The
application, in my view, should succeed.
COSTS
[13] Second applicant having succeeded in the joinder application, it
follows that sixth respondent ought to bear the costs of
the joinder
application. Equally, sixth respondent having succeeded in the
Rule 30
application, second applicant ought to pay the costs of the
Rule 30
application.
ORDER
[14] The following order is made:
1. Second applicant's replying affidavit is set aside.
2. Second applicant is ordered to pay the costs of the
Rule 30
application.
3. The joinder application succeeds. The Minister of Police,
Plastic Pack (Pty) Ltd and Universal Pulse Trading 367 (Pty)
Ltd are
joined to the proceedings as ninth, tenth and eleventh respondents.
4. Sixth respondent is ordered to pay the costs of the joinder
application.
M W MSIMEKI
JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD ON: 27 OCTOBER 2015
FOR THE 2
ND
APPLICANT: ADV J G C HAMMAN
INSTRUCTED BY: HURTER SPIES ATTORNEYS
FOR THE 6
TH
RESPONDENT: ADV K M MOKOTEDI
INSTRUCTED BY: STATE ATTORNEYS