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[2015] ZAGPPHC 862
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Ndouvhada v Machaka Traditional Council and Others (50832/14) [2015] ZAGPPHC 862 (14 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 50832/14
DATE: 14 August 2015
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
AUBREY
NDOUVHADA
Applicant
v
THE MACHAKA TRADITIONAL
COUNCIL
First
Respondent
MATOME VINCENT
MAMABOLO
Second
Respondent
THE PROVINCIAL DEPARTMENT OF RURAL
DEVELOPMENT AND LAND REFORM,
LIMPOPO
PROVINCE
Third
Respondent
THE NATIONAL DEPARTMENT OF RURAL
DEVELOPMENT AND LAND
REFORM
Fourth
Respondent
MOLEMOLE
MUNICIPALITY
Fifth
Respondent
JUDGMENT
MABUSE J
:
[1] On 29 July 2014 the applicant
brought an urgent application against the respondents. The purpose of
the said application was
to secure an interim interdict against the
first respondent, a tribal authority with its tribal offices situated
at Machaka Tribal
Office, Mphakane, Botlokwa, Matoks in the province
of Limpopo and, the second respondent, who is described as an adult
business
man of stand no. 1134 Mphakane Village, Botlokwa, also in
the Limpopo Province, in terms of which the third respondents were
prohibited
from continuing with illegal construction activities on a
portion of the remaining extent of portion 1 of the Farm De
Kaffersdrift
510 LS situated adjacent to Road 01356 behind Matoks
Complex ("the property").
[2] After hearing the matter the Court
granted the interim order and postponed certain prayers of the notice
of motion to the opposed
roll.
[3] This matter is therefore before
this Court for the consideration of the interim interdict and whether
such interdict should
be made final. It is also before this Court for
the consideration of prayers 3, 4 and 5 of the notice of motion. Now
in prayer
3 to 5 of the notice of motion, this is what the applicant
seeks:
''3. A declaratory order declaring
the resolution taken by the first respondent on the
16th of
October 2013 to be void, invalid and of no force or effect,·
4.
An order declaring the
resolution taken on the 21fh of May 2012, by the first respondent, to
be valid and binding upon the first
respondent,
5. That the third and fourth
respondents be instructed and authorised to give effect to the
resolution taken on the 27th of May
2012 and do whatever may be
necessary to affect the transfer of the property mentioned in
paragraph 2 above to the applicant subject
to the conditions recorded
in the lastmentioned resolution.
"
In terms of prayer 6 the applicant
asks for an order in terms whereof the first and second respondents
are ordered to pay the costs
of the application jointly and
severally, the one paying and the other to be absolved.
[4] The issues before the Court relate
to two resolutions, one taken on 27 May 2012 and the other on 16
October 2013. Both purported
to have been taken by the first
respondent.
[5] It is only apposite, at this
stage, that I narrate the genesis of the two resolutions. The
applicant had plans to run a business
of a filling station in the
aforementioned village. In order to establish that business in that
village he needed a piece of land.
He himself did not have any such
piece of land but the first respondent did. He then made a formal
application to the first respondent
for a piece of land. During 2008
he engaged the first respondent regarding the development of the
filling station on the property
and the first respondent on 28
January 2008, and after the applicant had paid an amount of R15
000,00 to the first respondent recorded
its recommendation relating
to the application for a filling station on the property to the
Department of Trade and Industry as
well as the fifth
respondent. Such recommendation is evidenced by a copy of a letter
dated 28 January 2008 which the
first respondent wrote to the Trade
and Industry Molemole Municipality, Molemole. It reads as follows:
"The Machaka Traditional
Council has recommended Ndouvhada A to erect Ndouvhada filling
station. The site is along Ramokgopa
Road, next to Modau Fruit and
Vegetables.
Your cooperation in this matter
will be appreciated
Thanks"
It was signed by the secretary, the
Khoshi and two counsellors.
[6] As the applicant was at this stage
not in any financial position to establish the filling station
himself, he concluded a partnership
agreement with the second
respondent on or about 18 June 2012 in terms of which it was agreed
between them that the second respondent
would finance the project of
developing the filling station on the aforementioned property as the
Ndouvhada Filling Station and
it was furthermore agreed that the
applicant should obtain the necessary approvals, authorisations and
business plans in order
to facilitate the development of the filling
station. A copy of the aforementioned partnership agreement was
attached to the application
as Annexure 'N2'.
[7] After the conclusion of the
aforementioned partnership agreement the applicant proceeded with the
necessary applications for
environmental authorisation, an
application for a site and retail license in terms of the Petroleum
Product Act, and engaged with
consultants to conduct a traffic
assessment, caused the necessary SD diagrams and site development
plans to be drawn and also instructed
the design and layout of the
proposed filling station to be done. It is clear from the aforegoing
that a substantial amount of
time and effort was spent on obtaining
all the necessary approvals and documentation which calumniated in a
letter received from
Shell South Africa (Pty) Ltd on 17 August 2011
which confirmed that the applicant had been appointed by Shell as a
retailer. The
aforementioned appointment was subject to certain
conditions.
[8] The applicant then engaged the
first respondent in order to purchase the property where he had
planned to establish the filling
station on the first respondent. He
had envisaged that the transfer of ownership of the property would
take a considerable long
time in view of the fact that a State
property was involved. As a consequence of engaging with the first
respondent a meeting of
the members of the first respondent was
convened for the 27th of May 2012. In order for this meeting to go
ahead as planned and
as it involved an issue that related to the
property of the tribe the first respondent could only dispose of the
tribal property
if it complied with the statutory prescriptions and
obtained the consent from the third and fourth respondents. As
required by
legislation the details of the said tribal meeting were
published 21 days before the meeting could be held. The said meeting
was
advertised in the local newspapers, as indicated, it was
advertised and published for 27 May 2012. On the said date the
meeting
was attended by, among others, Mr. Malatjie T.I. in his
capacity as appointed investigating official for the third respondent
to
ensure that the meeting was properly constituted and a valid
reason was taken.
[9] At the said meeting, which was
also attended by the applicant personally, it was resolved that the
property be disposed of in
favour of the applicant for an amount of
R123 100.00 and that the first respondent would receive 10% profit
share in the development
with the first option to purchase an
additional 20% share in the development. That such a resolution
was taken is evidenced
by Annexure 'N1O' to the application.
[10] Paragraph 1 of the said
resolution states as follows:
"1. At the meeting of Batlokwa
Machaka Land Rights Holders at Batlokwa, Machaka Tribal Offices,
district of Capricorn, Province
of Limpopo on the 27fh day of May
2012, before councillors, community leaders and representatives, Land
Rights Holders present.
2. The PURPOSE of the meeting being
The signing of a community
resolution in terms of the interim procedures governing Land
Development for the development of a filling
station on a portion of
Portion 1of The Farm De Kaffersdrift
510 LS.
3.
That the Land Rights Holders
were informed of the meeting 21 days prior thereof, through the
following CHANNESL OF COMMUN/CATION
Newspaper publication (Capricorn
Voice)
Public Notices
Tribal meetings
4. By means of
Newspaper Publication (Capricorn
Voice)
Public Notices
Tribal Meetings
5. That the Land Rights Holders
consists of approximately 116 members. Of which 74 adult males and 42
adult females attended the
meeting.
6. That 116 of the members who
attended the meeting voted in favour of the above resolution and 0
voted against it
7. That I am satisfied that the
majority of the adult members present at the meeting were in
favour of the above resolution.
8. The Land Rights
Holders=Statement of Resolution. holders/community have resolved that
The community agrees to
alienate/dispose a portion of portion 1of the Farm De Kaffersdrift
510LS, measuring 2562
square metres in
extent to Mr. A Ndouvhada for the development
of a filling station.
The community will
receive a market related value of
R123 100.00 as
compensation for the disposal of the
subject property.
The community will receive 10%
profit shares from the development and have first option to acquire a
further 20% shares using its
own capital.
All the money will be deposited
into the community trust account and should be used for the benefit
of the entire community.
9. It was further RESOLVED that
9.
1 The following signatories will sign the agreement taken by the
community on their behalf to give effect to the decision to
alienate/develop the land
9. 1. 1 Name Kgwadu Ratlou Machaka
Capacity Kgosi
Signature,·
Date 2710512012
Then several other people signed
and also indicated their capacities."
[11] On 23 August 2012 the applicant
received a letter from the third respondent in which he was informed
that his application for
the approval of the disposal of the property
had been forwarded to the Minister of Rural Developments and Land
Reform for approval.
During November 2013 he contacted the fourth
respondent personally and spoke to the chief director, one Mr.
Mogwenwe to make enquiries
regarding the progress in the approval of
the alienation of the property. The said Mr. Mogwenwe informed him
that although the
initial application and the resolution was validly
taken and that the fourth respondent had no difficulty to approve the
application
the fourth respondent, subsequent to having received the
resolution dated 27 May 2012, received a letter from the first
respondent
purporting to be a further resolution in terms of which it
was resolved not to proceed with the alienation of not only the
property
in issue but also another property. He requested the said
Mr. Mogwenwe to furnish him with a copy of the said resolution but
Mr.
Mogwenwe refused. Only during April 2014 did he obtain a copy of
such new resolution from his attorney of record. The attorney had
obtained it from the fourth respondent. A copy thereof was annexed to
the papers as Annexure 'N12'. I will only quote the
relevant
sections of the letter. Firstly, it came from Machaka
Traditional Authority and one Sikwaila M.B. was involved in
it. It
is headed:
"RESOLUTIONS TAKEN BY THE
MACHAKA TRADITIONAL COUNCIL
1.
As the Batlokwa Ba Machaka
community took a Resolution in terms of the Community Interim
Procedures Governing Land Development on
14 September 2008 to sell
portions of the Farms Dekaffersdrift 510LS and Klipbok 767LS to
Herarce Senoamadi and Aubrey Ndouvhoda.
2.
The Batlokwa Ba
Machaka community after being informed of
certain irregularities
3.
Now resolves that:
3.1.
All process regarding the application and transfer of land and or
issuing of title deeds relating to these 2 applicants be stopped
with
immediate effect.
3.2.
That the 2portions stated above will no longer be sold.
3.3.
That said portions will be allocated as development area, and that
these portions of land will only be made available to Developers
on a
lease basis.
3.4.
The Batlokwa Ba Machaka Community will enter into a long lease
with the company/entity trading for profit on the said portion of
land.
Dated at Botlokwa on this the 16th
October 2013.
COUNCIL: 1 MB. Sekwaila
Signature
Name K.D. Machaka
KGOSHI MACHAKA II
This will be called the 16 October
2013 resolution.
[12] The applicant contends that there
are a number of disconcerting issues about the aforementioned
resolution. In the first place
he contends that the aforementioned
resolution incorrectly refers to a resolution taken on 14 September
2015 to dispose of such
properties and makes very little reference to
the resolution taken on 27 May 2015. Secondly, he contends that the
said resolution
constitutes nothing less than a fabrication and
fraudulent document and he submitted that no such resolution was ever
taken by
the members of the first respondent. Thirdly, he contends
that he personally attended a meeting on 16 October 2013 and that
meeting
was convened strictly for the workers and contractors
attending to the construction of work on Road 01356. According to him
the
sole purpose of the meeting was to discuss the salaries of such
workers with the contractors and managers of the road construction
project. The members of the third respondent, who attended the
meeting and refused to continue to work, were all employed by the
road contractors and such contractors were obliged to make use of
local labour in the construction activities. He contends that
he
personally attended the entire meeting and confirms that the disposal
of the property was not even mentioned at such meeting.
Fourthly, he
contends that although the attendance register indicated that the
aforementioned meeting was attended by 252 members
of the first
respondent, it contains several duplications of such members
and should moreover be pointed out that such meeting
was attended by
numerous family relatives. Fifthly, it is contended by the applicant
that he and several members of his family
did not even sign the
attendance register that is attached to the said resolution. Sixthly
he contends that the first respondent
did not comply with any
statutory provisions convening such a meeting and that the said
meeting was not attended by any representative
of the third
respondent. In this regard he wants this Court to make a comparative
analysis between what preceded the meeting that
was held on 27 May
2012 and what preceded the meeting of October 2013. It will be
recalled that the meeting of 27 May 2012 where
the resolution of same
date was taken was preceded by advertisement or publication of the
meeting in the local newspapers and also
at the Tribal Offices. There
is no such procedure that was followed in respect of the resolution
that was taken on 16 October 2013.
[13] For that reason he contends that
the resolution of 16 October 2013 was a fabrication and it was
directly influenced by the
second respondent. For that reason
furthermore he contends that the resolution of 16 October 2013 was
null and void and of no force
and effect.
[14] The applicant's application was
opposed only by the first and second respondents. The third and
fourth respondents chose not
to file any papers but instead decided
to abide by the decision of this Court. No papers whatsoever were
filed on behalf of Khumo
Lemolele Municipality, the fifth respondent.
Basically the application is opposed by the first respondent through
Delton Machaka,
Khoshi of the Machaka Traditional Authority. He
contends that he is a chief of the Machaka Community and he
approaches this Court
as a leader and a member and in the interest of
the Machaka Community, a group or a class of persons contemplated in
s. 38(c) of
the Constitution of the Republic of South Africa Act 108
of 1996. Khoshi Machaka admits in his answering affidavit that a
resolution
was taken on 27 May 2012. He concedes that the community
approved of the development and alienation of the land on the terms
and
conditions indicated in the resolution.
[15] The first respondent only
responded to paragraph 4.1 of the founding affidavit at paragraph
11.16.1 of the answering affidavit
after testifying about irrelevant
issues. In paragraph 11.16.1 of the answering affidavit the
respondents admits the contents of
paragraph 4.1 of the founding
affidavit and confirmed that an amount
of R15 000.00 was
payable in terms of the customs and usage of
the community and that only R300.00 of it was paid. Despite the
contents of the resolution
he persists with his allegations that had
nothing to do with alienation of land. For the following reasons the
first respondent
seems to have reneged on the resolution of 27 May
2012. Firstly, he complains that in the past people who had bought
land from
the first respondent on the promise that they would give
the first respondent 10% interest in their ventures failed to do so.
According
to Mr. Diamond, who appeared for the first and second
respondents, the applicant had also not paid the 10% interest
referred to
in the 27 May 2012 resolution. In my view this reason has
no substance. It was never taken up with the applicant that he failed
to pay the said 10%. Secondly, the resolution did not constitute an
agreement between the applicant and the tribal council, and
thirdly
the application had not commenced with his business operations.
[16] The second reason for reneging on
the resolution of 27 May 2012 was that, so it is contended by the
first respondent, shortly
after the meeting of 27 May 2012, the first
respondent noticed that the applicant presented two other individuals
as investors
of the project. It would appear that the second
respondent did not approve of these two investors.
[17] Behind the back of the applicant,
the first respondent wrote letters to the third and fourth
respondents in which he demanded
that transfer of the property
referred to in the resolution of 27 May 2012, be stopped. For
inexplicable reasons, they kept the
applicant in the dark. When Mr.
Diamond was asked to explain why the first respondent took no steps
to advise the applicant about
their communication with the third and
fourth respondents, he answered that the land belonged to the State.
[18] The principal reason a community
meeting was held on 16 October 2013 was the difference between the 27
May 2012 resolution
indicated the applicant would pay for the
property and the valuation of the same piece of land by Mr. Goosen.
Although this matter
was taken up with the said Mr. Malatjie, so it
was contended by the first respondent, the applicant was never
informed about it
nor was it ever taken up with him. He was again
kept in the dark despite an erroneous perception that the first
respondent had
realised that individuals enriched themselves at the
expense of the interests of the community.
[19) The first and second respondents
admitted that the meeting that was held on 27 May 2012 was properly
published, as stated by
the applicant. For inexplicable reasons they
contend, though, that the intention of the first respondent and of
the Machaka community
had always been that the development of the
property should take place by way of a joint venture between the
applicant and the
second respondent. This cannot be true because the
resolution of 27 May 2012 does not mention the second respondent
whatsoever,
nor does it mention any joint venture between the second
respondent and the applicant. The first respondent states that the
meeting
of 16 October 2013 was well published but provides no proof
of such publication. The applicant specifically mentioned that he was
present at the meeting of 16 October 2013 which was convened for the
workers and contractors attending to contract work on the
road 01356.
He specifically stated that the sole purpose of that meeting was to
discuss the salaries of such workers with the contractors
and
managers of the road construction project. On the other hand the
first respondent states that the applicant was not at that
meeting of
16 October 2013. He goes further and states that there were at the
same time two meetings which were held on 16 October
20913. It is not
very clear what the relevance of these other two meetings were. In
support of his allegation that the meeting
of 16 October 2013 indeed
took place he furnished an affidavit by one Mokgadi Malatjie. There
is no other affidavit that he furnished
in support of the contention.
The same Mokgadi Malatjie made another confirmatory affidavit, this
time in support of the applicant's
case. She admitted that she indeed
signed the Annexure 'K15' which is the affidavit that the first
respondent used in support of
its contention that a meeting was held
on 16 October 2013. She explained furthermore that it was the first
and second respondents
who mislead her and she only understood this
after the contents thereof were explained to her by counsel on behalf
of the applicant.
She said that during the middle of July 2014 she
was approached by Mr. MB Sekwaila and the second respondent. Mr.
Sekwaila explained
to her that she had to depose to an affidavit, the
purpose of which was to ensure that only members of the Machaka
community would
be employed by the Machaka Traditional Council.
Furthermore Mr. Sekwaila indicated that he should sign the affidavit
if he wanted
the employment and should approach the traditional
council. The second respondent approached her at her residence at
stand 1855
in Sefene where two pages of the document were handed to
her for her signature based on what Mr. Sekwaila indicated to her.
She
contends furthermore that she is illiterate. She signed the
document but it was not in the presence of a commissioner of oath.
She made it clear that the sole purpose of the meeting of 16 October
2013 was to discuss salaries of the workers attending to the
construction work on Road 01356 in terms of the expanded public works
program. In this manner she corroborated to the evidence
of the
applicant. This also shows the extent to which the first respondent
had dealt with this matter.
[20] The applicant provided this Court
with several affidavits for some of the people who attended the
meeting on 16 October 2013.
It is of supreme importance to point out
that in all their affidavits they confirm that the purpose of the
meeting of the 16th
of October 2013 had nothing to do with the
resolution that the first and second respondents rely on.
They
are adamant that that meeting had only to do with the
salaries of those who were employed at the road side.
[21] For the following reasons I must
find therefore that the resolution dated 16 October 2013 is null and
void and of no force
and effect. Firstly, there was no such
resolutions taken by the members of the third respondent on the said
date and this fact
has been confirmed by the confirmatory affidavits
attached to the applicant's replying affidavit. Secondly, the
attendance register
annexed to such resolution did not relate to the
alleged resolution but relates to a meeting that was held for the
workers and
contractors attending to the construction of Road 01356.
Thirdly, the meeting was not preceded by compliance with the
peremptory
statutory requirements provided for, in other words, the
meeting was not advertised as it was the case with the 27 May 2012
meeting.
[22] In their attempts to create an
impression that a proper resolution had been taken on 16 October
2013, the first and second
respondents unduly influenced and mislead
one of the first respondent's members to sign a confirmatory
affidavit annexed to the
answering affidavit. I already have referred
to that affidavit of Mokgadi Malatjie which is attached as annexure
'KMS' to the answering
affidavit. The purpose of submitting a false
affidavit before this Court was clearly to mislead this Court. This
must be visited
with a proper order of costs.
[23] Mr. Diamond brought a sheet
entitled "FIRST AND SECOND RESPONDENTS' ENROLLMENT OF THE ORDER
OF JUSTICE MAKGOBA DATED 29
JULY 2014
FOR RECONSIDERATION IN TERMS OF RULE
6(12)(c)". In my view it was a poor attempt to reconsider the
order of 29 July 2014, and
merited no attention.
[24] I am of the view that the
applicant has made out a good case herein, accordingly the following
order is made:
1. The interim interdict of 29 July
2014 is hereby confirmed;
2. A resolution purportedly taken on
16 October 2013 by the first respondent is hereby declared to be
void, invalid and of no force
or effect;
3. It is hereby declared that the
resolution taken on 27 May 2012 by the first respondent is valid and
binding upon the first respondent;
4. The third and fourth respondents
are hereby instructed and authorised to give effect to the resolution
taken on 27 May 2012 and
do whatever may be necessary to effect the
transfer of the property known as a Portion of the Remaining Extent
of Portion 1 of
the Farm De Kaffersdrift 510 LS, which property
measures 2562 square metres in extent and situated adjacent to Road
D1356, behind
the Matoks shopping complex to the applicant, subject
to the conditions recorded in the lastmentioned resolution;
5. The first and second respondents
are ordered to pay the costs of this application jointly and
severally, the one paying and the
other to be absolved on an attorney
and client scale.
_________________________
P.M. MABUSE
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the Applicant: Adv.
J.A. Venter
Instructed by: Weavind
&
Weavind Attorneys
Counsel for the 1
st
&
2
nd
respondents: Adv. G.J. Diamond
Instructed by: Diamond Hamman
&
Associates
Date Heard: 13 August 2015
Date of Judgment: 14 August 2015