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[2015] ZANCHC 39
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All person s intending occupying Erven 14167 and 14409, Kathu v Gamagara Local Municipality (1991/2014) [2015] ZANCHC 39 (5 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO: 1991/2014
DATE HEARD:
03/06/2015
DATE
DELIVERED: 05/06/2015
In
the matter between:
ALL PERSONS INTENDING
OCCUPYING
ERVEN
14167 AND 14409,
KATHU
Applicant
and
GAMAGARA
LOCAL
MUNICIPALITY
Respondent
Coram: Olivier, J
JUDGMENT
Olivier
J:
[1.]
In
this matter the main application served before me on 6 February
2015 and on the same day, in an
ex
tempore
judgment, I confirmed a
rule
nisi
prohibiting the occupation of two erven in Kathu and granted an order
authorising the eviction of those found to be occupying the
erven by
6 March 2015.
[2.]
The
applicant in that application was the Gamagara Local Municipality
while the respondent, and more specifically the group of people
occupying the property, was cited as “
All
persons intending occupying erven 14167 and 14409, Kathu
”.
For the sake of convenience I will in the present judgment continue
to refer to the applicant and the respondent
as described in the main
application.
[3.]
On
26 February 2015 a request for the reasons for my judgment was
filed. I requested a transcription of my judgment and on
9
March 2015, after having received the transcription of the judgment,
I indicated that I had nothing to add to the reasons contained
in my
judgment.
[4.]
In
the meantime, on 27 February 2015, the respondent had lodged an
application for an order that the eviction process be stayed
pending
receipt of my reasons and pending the final determination of an
application for leave to appeal. On 4 March 2015
an order was
made in that application, by agreement between the parties,
confirming that the respondent withdrew its application,
ordering
that the costs of that application would be costs in the anticipated
appeal and that, should the respondent fail to prosecute
such appeal
within 10 (ten) days or fail in its application for leave to appeal,
those costs would be paid by Ms Salvation Mogadile.
Ms Mogadile
had been the deponent to the answering affidavit in the main
application, and she also deposed to an affidavit, again
supposedly
on behalf of the respondent, in the application of 27 February
2015.
[5.]
In
the respondent’s present application, which was lodged on
3 March 2015, the notice of motion contains only a prayer
for an
order condoning the respondent’s failure to comply with the
provisions of Uniform Rule 49(1)(b). In paragraph
16 of this
founding affidavit, once again deposed to by Ms Mogadile and again
supposedly on behalf of the respondent, the application
is, however,
referred to as one for leave to appeal.
[6.]
In
my judgment in the main application, which was given
ex
tempore
because of the urgency of the matter, I reserved the right to
elaborate on the reasons furnished
ex
tempore
,
if necessary. In my view the respondent therefore was entitled
to request “
full
reasons
”
as envisaged in the first proviso to Uniform Rule 49(1)(b). Put
another way, the respondent would have had reason
to believe that the
reasons advanced in the
ex
tempore
judgment may not have been the “
full
reasons
”.
[7.]
Uniform
Rule 49(1)(c) provides that, in such a case, the request for reasons
should be delivered within 10 (ten) days of the order
or orders.
The respondent’s request for reasons was delivered outside the
10 (ten) day period. I nevertheless
responded to the request.
There has never been an application for the condonation of that
failure, but nothing turns on this.
[8.]
It
was only when my letter to the Registrar stated that I did not wish
to furnish further reasons, that the respondent could for
practical
purposes be said to have been in possession of my full reasons, as
envisaged in the first proviso to Rule 49(1)(b).
Before then
the respondent would, in view of the qualification and reservation in
my
ex
tempore
judgment, have had no way of knowing what my full reasons would be.
The respondent would therefore have been entitled, in
my view, to
apply for leave to appeal within 15 (fifteen) days after receipt of
my response to its request for reasons, in other
words within 15
(fifteen) days of 9 March 2015.
[9.]
This
would mean that the premise of the present application for
condonation, namely that the 15 (fifteen) day period began to run
from the date of the
ex
tempore
judgment, is misconceived and that the respondent in actual fact do
not need the condonation prayed for. Had the 15 (fifteen)
day
period begun on the date of the
ex
tempore
judgment,
the position would have been different. Both counsel conceded
that the application for condonation had not been
necessary.
[10.]
It
is therefore unnecessary to deal with the applicant’s point
in
limine
regarding whether the resolution relied upon by Ms Mogadile actually
authorised her to bring the application for condonation.
[11.]
I
will therefore proceed on the basis that the application for leave to
appeal was filed timeously and will proceed to consider
the grounds
of appeal.
[12.]
The
first ground of appeal in the notice is that the orders were granted
on the basis of an erroneous finding that Ms Mogadile lacked
the
necessary authority. No such finding was made. Even
though I expressed my doubts in this regard I assumed in favour
of
the respondents that they had
locus
standi
and I decided the application on its merits. This much is
apparent from the transcription of my judgment.
[13.]
It
is furthermore stated that I had failed to make enquiries regarding
the personal circumstances of the occupiers and of minor
children.
As appears from the papers in the main application, and from my
judgment in that application, none of the actual
occupiers were
before Court. Ms Mogadile had in fact, when the sheriff
attempted to serve papers at the erven, encouraged
those present not
to disclose their identities. The applicant had no particulars
of the people who were invading the erven,
and clearly in the
circumstances had no way of obtaining such particulars. Counsel
for the respondent at the hearing, Mr
Schreuder, took pains to make
it clear that the respondents, in other words Ms Mogadile, her
alleged co-representatives and the
people named in the so-called
petition annexed to the answering affidavit in the main application,
did not actually occupy the
erven. He would therefore clearly
not have been in a position to furnish the Court with particulars of
who had in fact been
occupying the erven at that stage.
[14.]
Even
at the hearing of this application Mr Khokho, counsel for the
respondent, made it clear that Ms Mogadile and the people she
claims
to represent, in other words the people named in the so-called
petition, are not the occupiers of these erven. They
all live
elsewhere in Kathu.
[15.]
In
fact, Ms Mogadile in her answering affidavit in the main application
denied on oath that anybody at all had been occupying or
had invaded
the erven. That is in complete contrast to what she now states,
again on oath, in paragraph 7.6 of her founding
affidavit, namely
that at the time of the orders in the main application approximately
1 500 (one thousand five hundred) people
had in fact been
occupying the erven. If regard is had to the contents of what
Ms Mogadile relies upon as a resolution in
the application for
condonation, the number of people occupying the erven had for some
reason since then dwindled to only 400 (four
hundred) people by 4
March 2015. This again contradicts her initial denial.
[16.]
Even
now, however, Ms Mogadile does not even attempt to provide further
particulars, like the composition of the families occupying
the erven
and whether there are minors or disabled people among them. It
is clear why not. It is because she and the
other so-called
respondents do not live there and to not have those particulars.
Insofar as people who had actually been
occupying the erven at the
time that the sheriff went there may have been able to supply such
particulars, Ms Mogadile had encouraged
them not even to disclose
their identities, let alone such particulars.
[17.]
Although
this is not contained in the grounds of appeal, Ms Mogadile now
alleges that the actual occupiers of the erven “
are
very destitute and don’t have any alternative land
”.
The simple answer to this is that, even if it were to be assumed that
the people whose names appear in the so-called
petition did actually
occupy the erven at that stage, Ms Mogadile’s answering
affidavit in the main application did not contain
averments like
these. To the contrary, and as already mentioned, those papers
made it clear that Ms Mogadile and the so-called
respondents were not
occupying the erven and were, in fact, staying elsewhere in Kathu.
[18.]
Mr
Khokho argued that the Court should in some way have made enquiries
about the personal circumstances of those who had according
to the
applicant been occupying the erven. He did not explain how the
Court was supposed to do this if the actual occupiers
were not before
Court and in effect never opposed the application.
[19.]
Mr
Khokho also made reference to the circumstances under which people
are living in the Mapoteng area of Kathu. Those people
are not
the occupiers and the Mapoteng area is not where the two erven
concerned here are situated.
[20.]
A
further ground of appeal is that the Court erred in not ordering the
applicant to make alternative land available to the respondent.
As already mentioned, insofar as the respondent as a group consisting
of people whose names were in the so-called petition, and
those who
deposed to affidavits in opposition of the main application are
concerned, they had addresses elsewhere in Kathu.
None of them
claimed to be destitute or not to have land to reside on. It
was in any event on the papers very clear that
the applicant did not
in fact have land available, in other words land suitable for
occupation by humans.
[21.]
The
last ground of appeal is that it should have been found “
that
the applicant’s cause of action offended against the
Constitutional provisions envisaged in the Act
”.
No particulars were provided as regards what provisions of what Act
were referred to or as regards in what sense
the applicant’s
cause of action offended against those provisions.
[22.]
At
the hearing of this application, Mr Khokho relied on the provisions
of section 7 of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
,
19 of 1998, and argued that the Court should in some way, and despite
the fact that It would have been the prerogative of the
particular
Member of the Executive Council and despite the absence of any
dispute between the applicant and the actual occupiers,
have enforced
mediation. There is no merit in this submission and I have
already dealt with a more or less similar argument
in my judgment.
At the stage that the main application was lodged, there would
clearly have been no sense in mediation.
The occupiers,
encouraged by Ms Mogadile, were intent on occupying the erven and
they continued to do so even after the
rule
nisi
was served.
[23.]
Mr
Khokho also argued that the applicant had not, in bringing the main
application on an urgent basis, complied with section 5 of
the Act.
It was only Part A of the notice of motion that was dealt with on an
urgent basis, in other words the prayers for
interdictory relief.
The relief sought in Part B, in others words an order for eviction,
was only sought and decided months
later. Mr Khokho could in
any event not point out any specific non-compliance or any procedural
prejudice suffered by the
respondent.
[24.]
There
are simply no prospects of success with an appeal on any of the
grounds advanced.
[25.]
There
is no reason why the applicant should be burdened with any of the
respondent’s costs of their ill-conceived application
for
condonation. On the other hand there had been no need for the
applicant to oppose that application. In my view each of
the parties
should bear their own costs in the application for condonation.
[26.]
There
is no reason why the costs of the application for leave to appeal
should not follow the result.
[27.]
The
costs of the application for leave to appeal would, in terms of the
order of 4 March 2015, include the costs of the withdrawn
application
of 27 February 2015. As already indicated that order, which was
made by agreement, was that Ms Salvation Mogadile
would be personally
liable to pay those costs.
[28.]
Mr
Louw, counsel for the applicant, argued that Mr Mogadile should also
be ordered to pay the costs of the unsuccessful application
for leave
to appeal in her personal capacity. There would be no point in
ordering the respondent, as cited, to pay those
costs. It is
not the people occupying the erven who applied for leave to appeal.
That was done by Ms Mogadile, who
claimed to have been authorised by
so-called “
Executive
Members and Representatives of the community occupying erven 14167
and 14409, Kathu
”,
who were named in the resolution attached to the founding affidavit
in the application for condonation as annexure “SM1”.
[29.]
The
resolution does not say that Ms Mogadile is authorised to apply for
leave to appeal. There is also no explanation as to
why they
say that they represent people who actually occupy the erven.
In paragraph 7.6 of this affidavit Ms Mogadile referred
to the people
named in the petition as the occupants of those erven, but it was
clear from the papers in the main application and
indeed confirmed by
Mr Khokho that those people do not occupy the erven. They could
therefore not be the occupants referred
to in the resolution.
Apart from the fact that the signatories to the resolution were never
warned of the possibility of
a costs order
de
bonis propriis
,
they have in any event not expressly authorised the application for
leave to appeal. It is also important to keep in mind
that most
of the people who signed the so-called petition did so as long ago as
6 February 2014. The petition contained
no indication that
anybody would be authorised to apply for leave to appeal in the event
of an eviction order being granted against
other people who were,
unlike them, unlawfully occupying land.
[30.]
In
his answering affidavit in the application for condonation the
deponent for the applicant prayed that Ms Salvation Mogadile be
ordered to pay those costs as well,
de
bonis propriis
.
Those costs have been dealt with, but in my view such an order would
indeed, in view of the above, be suitable as regards
the costs of the
application for leave to appeal.
[31.]
The
following orders are therefore made:
1.
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
2.
THE
PARTIES WILL EACH BEAR THEIR OWN COSTS OF THE APPLICATION FOR
CONDONATION.
3.
MS
MOGADILE, IN HER PERSONAL CAPACITY, IS ORDERED TO PAY THE COSTS OF
THE APPLICATION LODGED ON 27 FEBRUARY 2015 AND WITHDRAWN
ON 4
MARCH 2015, AS WELL AS THE COSTS OF THE APPLICATION FOR LEAVE TO
APPEAL.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
ADV. M C LOUW
Instructed
by:
DUNCAN & ROTHMAN INC. (OBO PEYPER
SESELE ATTORNEYS)
For the Respondent:
ADV. D KHOKHO
Instructed
by:
MZUZU ATTORNEYS