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[2021] ZASCA 154
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Kgatla v Mashala (382/20) [2021] ZASCA 154 (29 October 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 382/20
In
the matter between:
MAPATLE
KGATLA
APPLICANT
and
MASEDI
RONNY MASHALA
RESPONDENT
Neutral
citation:
Mapatle
Kgatla v Masedi Ronny Mashala
(382/20)
[2021] ZASCA 154
(29 October 2021)
Coram:
MOCUMIE, MOKGOHLOA, MOTHLE AND MABINDLA-BOQWANA
JJA and UNTERHALTER AJA
Heard
:
02 September 2021
Delivered
:
This judgment
was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 29 October 2021.
Summary:
Interdict – final order sought –
no real disputes of fact shown – special leave to appeal
dismissed with costs
ORDER
On
appeal from:
Limpopo Division of the
High Court, Polokwane (Semenya J with Ledwaba AJ, sitting as the
court of appeal):
Special
leave to appeal is dismissed with costs.
JUDGMENT
Mokgohloa
JA (Mocumie, Mothle, and Mabindla-Boqwana JJA and Unterhalter AJA
concurring)
[1]
This is an application in terms of s
16(1)
(b)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act) for
special leave to appeal the judgment and order of the Limpopo
Division of the High Court, Polokwane (the high court), with Semenya
J and Ledwaba AJ sitting as a full bench (the full bench). In
terms of its judgment, the full bench upheld, with costs, the
respondent’s appeal against the judgment of the Letaba
Magistrate’s Court (the magistrate’s court), which was
granted in favour of the applicant.
[2]
The application, which is opposed, was set
down pursuant to an order issued by this Court (Petse DP and Matojane
AJA) on 7 August
2020. The application was referred for oral argument
in terms
s 17(2)
(d)
of the
Superior Courts Act. The
parties were also forewarned in the
same order, to be prepared to address this Court on the merits if
called upon to do so.
[3]
At the core of the dispute between the
parties was the complaint by Mr Mashala that Mr Kgatla had erected a
fence and off-loaded
building material on the stand allocated to Mr
Mashala by the Modjadji Traditional Council (the traditional
council).
[4]
It is necessary to set out the background
and facts against which the dispute arose and the trajectory of the
litigation up to this
point. The applicant is the headman of the
traditional council. The respondent, Mr Masedi Ronny Mashala (Mr
Mashala), is a resident
of Ga-Molai village, which falls under the
administration of the traditional council. In his answering
affidavit, in opposition
to Mr Mashala’s application for an
interdict to stop him from continuing to fence off the piece of land,
Mr Kgatla alleged
that sometime in 2018, acting as headman, he
started to coordinate endeavours by the traditional council to
construct a community
hall on a particular piece of land set aside
for that purpose. He identified that piece of land as Stand Number
000. To commence
this project, he offloaded building material on this
stand and started to fence it off.
[5]
In his founding affidavit, Mr Mashala
alleged that he was granted permission to occupy the piece of land on
which Mr Kgatla had
offloaded building material and was in the
process of fencing off. He attached to his founding affidavit the
permission to occupy
(PTO), issued by the Modjadji Royal Nation.
Subsequently, he brought an urgent application in the magistrates’
court to interdict
Mr Kgatla from erecting a fence and off-loading
building material on that stand. Mr Kgatla opposed the application
and raised three
points
in limine
:
(a)
locus standi
:
contending that Stand 915 belonged to one Silvia Mohale, and
therefore Mr Mashala had no
locus
standi
; (b) non-joinder: that Mr
Mashala had failed to join the traditional council as an interested
party in whom the land vested; and
(c) appeal: that the dispute had
already been adjudicated by the Modjadji Traditional Court (the
traditional court).
[6]
The magistrate upheld the points
in
limine,
without deciding the merits,
and dismissed Mr Mashala’s application with costs. Dissatisfied
with this order, Mr Mashala
appealed to the full bench. The full
bench upheld the appeal, set aside the magistrate’s decision
and substituted it with
an order interdicting Mr Kgatla, as sought by
Mr Mashala.
[7]
I turn to deal with the points
in
limine
raised by Mr Kgatla. First, the
point
in limine
of non-joinder. Mr Kgatla is cited in the papers as the headman of
the traditional council. In his answering affidavit, Mr Kgatla
confirmed that he was appointed as the headman under the traditional
council. Although not interrogated in both the magistrate’s
court and the full bench; and without any demur from the traditional
council or any other member thereof on this picture Mr Kgatla
painted
ie that he was acting on behalf of the traditional council, this
Court and so too the courts below, were bound to accept
that Mr
Kgatla represented the traditional council in his capacity as its
appointee. It follows therefore, that there was no need
to join the
traditional council in the proceedings instituted by Mr Mashala in
the magistrate’s court.
[8]
The
second point
in
limine
relied
upon by Mr Kgatla was that the dispute that Mr Mashala had raised in
the magistrate’s court had already been adjudicated
upon in the
traditional court at the instance of the respondent’s brother,
Mr Isaac Mashala. The outcome of that decision
was never contested.
In his replying affidavit, Mr Mashala explained that he was initially
not aware of the traditional court’s
decision. He averred
however that the document referenced by Mr Kgatla as constituting the
decision of the traditional court, related
to a dispute between Mr
Isaac Mashala and Mr Kgatla concerning the allocation of a site by a
certain Mr Baloyi, who was identified
as the then secretary of the
former headman (the applicant’s sister) Ms Selaelo Kgatla.
Since Mr Mashala was not a party
to that dispute, he could not have
appealed the decision of the traditional court. The submission is
correct.
Res
judicata
[1]
cannot
be invoked when Mr Mashala was not a party to the dispute that was
decided by the traditional court. Nor could he have had
recourse to
any right of appeal from the traditional court when he was not a
party to those proceedings. In any event, the decision
of the
traditional court does not state the stand number in dispute. It is
therefore impossible to ascertain with certainty whether
the
traditional court’s decision related to the stand in dispute or
to any other stand under the traditional council’s
authority.
The full bench correctly dismissed this point
in
limine.
[9]
The
third point
in
limine, locus standi
.
As to the contention that Mr Mashala lacked standing to seek an
interdict, the magistrate failed to distinguish a challenge to
the
standing of Mr Mashala and the separate question as to whether he had
established a right to occupy the stand in respect of
which he sought
protection. Standing is determined by assuming that Mr Mashala can
establish the right he relied upon and then
asking whether he has an
interest in that right.
[2]
Once the question of standing is properly posed, the answer is plain.
If Mr Mashala established the right to occupy stand 915,
he clearly
has an interest in the protection he sought by way of an interdict.
[10]
As I have found that the points
in
limine
lacked merit, the question is
whether the full bench was correct to grant the interdict. The full
bench reasoned that on the merits,
the disputes of fact were limited
and that it was in a position to find for Mr Mashala and granted the
interdict. Whether the full
bench was correct in doing so is the
matter to which I now turn.
[11]
Mr Mashala approached the magistrate’s
court on the basis that he enjoyed the permission to occupy stand
number 915. He adduced
evidence of his right to occupy as follows. In
2002, his mother secured stand number 915 in the village and paid the
levy as evidenced
by two receipts, which he attached to his founding
affidavit. He also attached the PTO issued by the Modjadji Royal
Nation. The
PTO reflects that Mr Mashala was allotted stand 915 to
occupy on 28 January 2003.
[12]
In his answering affidavit, Mr Kgatla
stated that the PTO that Mr Mashala relied on did not relate to the
stand where he was off-loading
building material and which he
intended to fence-off. He asserted that the stand he intended to
fence off was Stand No 000, an
empty stand without a number because
it was not allocated for residential purposes. Furthermore, to show
that this particular stand
was not the same as the one Mr Mashala
alleged was his, he averred that ordinarily the average size of
residential stands measures
30m x 30m whereas the stand in question
measures 80m x 43m and it is situated next to the traditional court.
In addition, he averred
that Stand Number 915 belonged to a certain
Ms Sylvia Mohale (Ms Mohale). For this reason, he appended a
handwritten document marked
as annexure C, which he alleged was an
extract from the traditional council’s records, reflecting a
list of names of persons
purported to be of those allotted different
pieces of land by the traditional council, including Stand Number
915.
[13]
According to him, if Mr Mashala was the
owner of Stand Number 915, which (according to his records) belonged
to Ms Mohale, then
he must have obtained the PTO fraudulently. In any
event, so he contended, the question of the contentious ownership of
the stand
came before the traditional court on 16 July 2018 (in the
matter between him and Mr Isaac Mashala) and the traditional court
ruled
that the stand belonged to the Molai village. As a result, Mr
Mashala did not have the right to occupy either Stand Number 000 or
915.
[14]
How Mr Kgatla came to make this record and
based on what facts is wholly unexplained. Nor is there any
confirmatory affidavit provided
by Ms Mohale, or indeed from anyone
who might provide evidence to confirm that Ms Mohale enjoys the right
of occupation attaching
to Stand 915. Nothing is said as to when Ms
Mohale acquired these rights, how she did so, or from whom.
[15]
In my view, on the papers, Mr Mashala
established his right to occupy Stand 915. Mr Kgatla failed to
provide evidence to dispute
Mr Mashala’s right beyond his mere
assertion. Therefore there is no real dispute of fact. In
consequence, Mr Mashala was
entitled to seek the protection of his
right from unlawful interference.
[16]
The question that remains is whether Mr
Mashala’s right to occupy Stand number 915 was threatened by Mr
Kgatla. Mr Kgatla
does not claim that he or, through him, the
traditional council has the right to occupy Stand number 915. Rather,
Mr Kgatla claims
that Stand Number 000 belongs to the Molai Village.
He explains in his answering affidavit that it is Stand Number 000
where he
wishes to construct a community hall. And it is on Stand
Number 000 that he erected the fence and not on Stand Number 915.
[17]
Mr Kgatla, being the headman, within whom
the knowledge and possession of relevant documents vests, failed to
provide any documentary
proof that Stand Number 000 is different from
Stand Number 915. I am therefore not satisfied that he has done
enough to create
a real dispute of fact on this issue.
[18]
Finally, during argument before this Court,
the applicant’s counsel raised the validity of the PTO for want
of compliance
with the regulations that were of application at the
time that the PTO was granted. That issue was not raised on the
papers and
cannot randomly be raised on appeal since it is not a pure
question of law.
[19]
Consequently, I find that no special
circumstances exist to grant leave to appeal.
[20]
In the result the following order issues.
Special
leave to appeal is dismissed with costs.
F
E MOKGOHLOA
JUDGE
OF APPEAL
APPEARANCES
For
applicant:
A C Diamond
Instructed
by:
Johan Steyn Attorneys, Tzaneen
Symington
De Kok Attorneys, Bloemfontein
For
respondent:
H P Mabuza
Instructed
by:
Modjadji Raphesu Attorneys, Polokwane
Phatsoane
Henny Attorneys, Bloemfontein.
[1]
In
terms of the principle of
res
judicata,
when
a matter has been adjudicated by a competent court, it cannot be
readjudicated by the same parties in a different forum.
[2]
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991
(1) SA 567
(AD;
[1991] 2 All SA 25
(A).