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2015
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[2015] ZANCHC 55
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Sol Plaatje Local Municipality v Economic Freedom Fighters and Others (702/2015) [2015] ZANCHC 55 (9 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Reportabl:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
Case
No:
702/2015
Date
heard:
18/09/2015
Date
delivered:
09/10/2015
In
the matter between:
SOL
PLAATJE LOCAL
MUNICIPALITY
Applicant
and
ECONOMIC
FREEDOM
FIGHTERS
1st Respondent
GEORGE
NYAKAMA
2nd Respondent
AUBREY
BAARTMAN
3rd Respondent
UNIDENTIFIED
MEMBERS AND/OR NON-MEMBERS
OF
THE FIRST RESPONDENT TAKING PART IN THE
UNLAWFUL
CONDUCT OF THE FIRST RESPONDENT
4th Respondent
Coram
:
Olivier J
JUDGMENT
Olivier
J:
[1].
This application served before me on the extended return date of a
rule
nisi
issued on 13 April 2015 after the applicant,
the Sol Plaatje Municipality, had approached the Court on an urgent
basis. After
hearing argument I reserved judgment and extended
the rule
nisi
.
[2].
The first respondent is the Economic Freedom Fighters, described in
the founding affidavit as a voluntary association with
legal
personality and registered as a political party. The second
respondent, Mr George Nyakama, and the third respondent, Mr Aubrey
Baartman, were cited in their respective capacities as the provincial
secretary and the provincial chairperson of the first respondent.
[3].
The fourth respondent was simply cited as members and non- members of
the first respondent who were taking part, or were intending
to take
part, in the first respondent’s proposed “
land
grab
” or land invasion.
[4].
Notice of the application was given to the first three respondents
little more than hour before the application was brought.
They did
not appear and the rule
nisi
was granted, interdicting
the first to fourth respondents from:
4.1)
trespassing
in
contravention of section 1 of the
Trespass
Act
[1]
and/or
enticing
and/or
in
any
way
whatsoever
influencing
members
of
the
public
to
commit
such
an
offence;
4.2)
holding any demonstration and/or gathering, for a period
of 12
(twelve) months of the date of the order, without giving
4.3)
the
required notice in
terms of
the
Regulation
of
Gatherings
Act
[2]
;
4.4)
providing any kind of unlawful permission to and/or
enticing and/or
in any way whatsoever influencing members of the public to invade
and/or occupy any of the immovable properties
of the applicant
situated within the boundaries of the Sol Plaatje municipal district;
4.5)
taking occupation of and/or erecting structures on any
of the
immovable property of the applicant situated in the Sol Plaatje
municipal district; and
4.6)
damaging and/or destroying any of the applicant’s
property
situated in the Sol Plaatje municipal district.
[5].
The rule
nisi
also directed the South African Police Service
to take all reasonable and necessary steps to give effect to the
orders, and it called
upon the respondents to show cause why these
orders should not be confirmed.
[6].
On the return date the application was opposed by the first, second
and third respondents.
[7].
On 14 April 2015 a notice of intention to amend the
notice of motion to include a prayer to the effect
that
the first, second and third respondents pay the costs of the
application jointly and severally, the one to pay the other to
be
absolved, was served on the respondents. It afforded the
respondents the usual 10 (ten) days within which to object
to the
amendment. No objection was ever filed.
[8].
Mr Khokho, counsel for the opposing respondents, took the point that
the applicant had not then effected its amendment in terms
of Uniform
Rule 28(7) and that the Court should therefore disregard the prayer
for costs.
[9].
This is a technical and somewhat obstructive argument which really
does not take the matter further at all. The applicant had
in any
event, through its notice of amendment, made it abundantly clear that
it was going to be its case that the particular respondents
pay its
legal costs. The first to third respondents could therefore not be
prejudiced by such a request at that stage.
[10].
The absence of
such a
prayer in
the notice of
motion or
in the
rule
nisi
could
in those circumstances never, as suggested by Mr Khokho,
have
been
a
bar
to
the
making
of
a
costs
order
against
the
first
to
third
respondents
[3]
.
No
amendment was therefore really required.
[11].
Uniform Rule 28(10) would in any event have empowered the Court
to grant an
amendment at any stage before judgment.
Mr Khokho,
when
confronted
with
these
provisions,
made
the
strange
submission
that they only apply where a proposed amendment has
been
objected
to
and
is
then
allowed.
He
suggested
that
this
is
in
fact the
plain meaning of those provisions, and
he furthermore referred
me
to
what
Lacock
J
had
according
to
him
held
in
the
matter of
Mier
Municipality v Amadwala Trading 380 CC
[4]
.
[12].
In my view the provisions of Rule 28(10) cannot, even by the wildest
stretch
of
the
imagination,
be
interpreted
in
the
way
proposed
by
Mr
Khokho.
They
are
couched
“
in
the
widest
possible
terms
and
(do)
not
envisage any period before judgment during which the
possibility
of making an application for amendment is precluded
”
[5]
.
[13].
A perusal of the file contents in the matter referred to
by Mr Khokho revealed that the order granting
leave to
amend had been granted by agreement. The file contains no judgment by
Lacock J and there is no indication of him having
made any finding
regarding the applicability of sub-rule (10). It was irresponsible of
Mr Khokho to quite clearly be unprepared
to debate these provisions,
and even more so to misquote Lacock J.
[14].
Mr Khokho furthermore in argument raised the preliminary point that,
because the deponent for the applicant had not furnished
a resolution
to that effect, he had failed to show that he was authorised to bring
the application on behalf of the applicant.
This point too is without
any merit whatsoever.
[15].
The deponent, Mr G H Akharwaray, is the Municipal Manager of the
applicant.
In
his
founding
affidavit
he
stated
that
he
was “
duly
authorised
to
launch
these
proceedings
on
the
Applicant’s
behalf
and
to depose to this affidavit
”.
This
statement would, even in the face of a bare denial
by the respondents, have
sufficed and
it
would
certainly
not have
been
necessary
to
append
a
resolution
in
such
circumstances
[6]
.
[16].
Here, however, there is not even a
bare
denial of
Mr Akharwaray’s
statement
in
the
answering
affidavit.
To
the
contrary,
the
second
respondent’s
answer to Mr Akharwaray’s averment that he had
been duly
authorised, was simply that he “
noted
”
the averment and
that he
took “
no
issue thereto
”
(
sic
).
Quite astonishingly Mr Khokho
argued
that
this
did
not
amount
to
an
admission
of
Mr
Akharwaray’s
averment
[7]
.
[17].
It
has
in
any
event
been
held
that
what
Mr
Khokho
is
trying
to
do
here, and
the manner in which he is approaching the issue of
authority,
is
not
the
proper
way
of
doing
it,
and
that
it
should
be
done by
means the procedure in Uniform Rule 7
[8]
.
[18].
As a further preliminary point Mr Khokho argued that the matter had
not been urgent, and that insofar as any urgency may have
existed, it
had been self-created. Once again Mr Khokho’s
argument is devoid of any merit.
[19].
Mr Akharwaray stated in his founding affidavit that the first
respondent had in the week before the launching of this application
planned, encouraged and conducted various land invasions in other
towns and districts. Mr Akharwaray referred to news articles
to
this effect downloaded from the News24 website, dated 7 and 8 April
2015, regarding a land invasion
that
had been executed, and apparently led by
top-ranking officials of the first respondent, in Khayelitsha,
Cape
Town.
[20].
Mr Akharwaray went on to say that on Thursday 9 April 2015 he had
become aware of the contents of the front page and of an
article on
the second page of the Diamond Fields Advertiser, a local newspaper.
On the front page it had been reported that the
first respondent had
promised so-called “
fireworks
” for Kimberley for
the next week, in other words for the week from Monday 13 April 2015.
[21].
In the article on page 2 of the newspaper the author, identified
there as Murray Swart,
inter alia
quoted the second
respondent as saying that the first respondent had “
every
intention
of
following
the
example
set
by
their
Western
Cape
counterparts
by
beginning
the
physical
occupation
of
under-utilised
land
in
the
city
from
next
week
”, that
“
his
party and its supporters would be moving into
suburban areas of Kimberley and other earmarked areas, from
next
week
”, that “
Kimberley
can
really
expect
fireworks
next
week
” and that “
We
aren’t
going
to
say
exactly
when
our
action
will
begin
because we don’t
want to alert any resistance before we need to…
”.
[22].
A consultation with counsel was immediately arranged.
It took place on Friday 10 April 2015. The papers
were settled
over the weekend and the application was brought on Monday 13 April
2015.
[23].
The application was, on these allegations (and obviously subject to
their admissibility, an issue to
which
I will revert), quite clearly extremely
urgent. I fail to see any sign of the applicant
having itself
created such urgency. Such a case was certainly not made out by
the second respondent, who deposed to the answering
affidavit, also
on behalf of the first and third respondents, and Mr Khokho did not
point to any evidence which could substantiate
this submission of
his.
[24].
In any event, condonation was granted when the rule
nisi
was applied for, the week in which fireworks were to take
place has come and gone and the issue of urgency has really been
overtaken
by events.
[25].
The same really applies to Mr Khokho’s further argument, with
reference
to
Gallagher
v
Norman’s
Transport
Lines
(Pty)
Ltd
[9]
,
that
the
applicant’s notice of motion should have
been in the
long form
(Form
2(a)).
Mr
Khokho was in any event not able to point out any
prejudice
suffered because of the fact that the short form was used.
The
application was sufficiently urgent and the threat imminent
enough to
justify the short notice and the use of the short form. To
have given
longer notice would have been to play into the hands of
the
second
respondent,
who
had
made
it
clear
that
the
intention
was to
catch landowners like the applicant by surprise. Not only did
Rule
6
(12)
empower
the
Court,
when
initially
considering
the
application,
to dispense with this requirement, but in any event “
the
rules
are there for the Court, and not the Court for the rules
”
[10]
.
[26].
The next issue raised by Mr
Khokho was
the fact that the applicant
had in its
founding
affidavit
relied on
hearsay
evidence in the
form
of
especially
the
extracts
from
the
Diamond
Fields
Advertiser.
Mr
Khokho,
with
reference
to
the
case
of
The
Master
v
Slomowitz
[11]
,
made
the
point
that
in
order
to
rely
on
hearsay
evidence
in
an
affidavit
it is incumbent upon
a
deponent to
declare that he or she
believes
the
statement
to
be
true
and
to
disclose
the
reasons
for
that
belief, as well as the source of the information. This is also the
effect of
cases like
Southern
Pride Foods (Pty) Ltd v Mohidien
[12]
and
Lehane
NO v Lagoon Beach Hotel (Pty) Ltd and Others
[13]
.
[27].
In
Syfrets
Mortgage
Nominees
Ltd
v
Cape
St
Francis
Hotels
(Pty)
Ltd
[14]
it
was
confirmed
[15]
that
hearsay
statements
will
be
admitted
“
where
the Court is satisfied that it is necessary to do so because of
the
urgency of the matter; or for the purpose of preventing an injury
or
threatened
invasion
of
rights;
or
where
some
other
special
circumstances
appear to justify it doing so
”.
[28].
In his founding affidavit Mr Akharwaray made it clear that, in view
of the urgency of this matter, it had not at that stage
been possible
to obtain affidavits from the authors of the different articles. This
was never pertinently denied by or on behalf
of any of the
respondents. They would have been hard-pressed to do so, given the
fact that the first of those articles had been
published on 7 April
2015, only days before the week in
which “
fireworks
” were promised.
[29].
Mr Khokho was wrong in his submissions that Mr Akharwaray failed to
declare that he believed the statements to be true and
to disclose
the source of the information.
[30].
Mr Akharwaray right from the outset pertinently stated that, insofar
as the contents of his founding affidavit did not fall
within his
personal knowledge, he believed those averments to be true and
correct in all respects.
[31].
Even if he had not done so, it would have been clear that he in fact
had all the reason in the world to believe the contents
of the
Diamond Fields Advertiser to be true, because the publication of
those contents took place against the background and in
the context
of a week in which the first respondent’s members and officials
had elsewhere also threatened and in fact carried
out so- called land
grabs or invasion of land.
[32].
The applicant did not need to rely on the truth of the contents of
the News24 articles, merely on the fact that those contents
had been
published. That in itself would have been sufficient to cause
apprehension of the part of the applicant, which would then
have been
substantiated by the contents of the Diamond Fields Advertiser.
[33].
The source of the information was in fact also disclosed, because as
already indicated the name of
the
author of the article in the
particular edition of the Diamond Fields Advertiser,
Mr Murray Swart,
appeared at the top of that article. Once the papers had been served
on them the respondents therefore had the
opportunity to verify the
information with Mr Swart.
[34].
This they never did. Instead, the second respondent in
his answering affidavit simply stated that
he had been quoted
“
out
of
context
”. He did not
deny the use of the particular words and he failed to explain in what
context they were uttered according to
him.
[35].
When regard is
had
to
the
factors
enumerated
in section
3(1)(c)
of
Law of
Evidence
Amendment
Act
[16]
there is
in
my
view
no
merit in
Mr Khokho’s
submission that the hearsay evidence should not have
been
admitted
or
taken
into
account.
The
proceedings
were,
as
already
found,
urgent.
At
stake
were
the
applicant’s
rights
as
an
owner
of
land,
and
also
the
safety
and
well-being
of
anyone
who
would
be
enticed
or
influenced
to
trespass,
occupy
or
erect
dwellings.
The
evidence
was
tendered
to
show
that
there
was
a
reasonable
apprehension
on
the
part
of
the
applicant.
It
had
no
other
way
of
proving
this,
given
the
urgency
of
the
matter.
The
reason why
an affidavit could not at that stage be obtained from the
source of
the information was explained.
It is also
difficult to
conceive
how
the
admission
of
the
evidence
could
at
this
stage
be
said to
prejudice the respondents.
The second
respondent, to
whom
the
remarks
were
attributed,
could
quite
easily
have
denied
having
made
them
or
he
could
have
explained
what
he
meant
by
them.
Mr Khokho
was unable to explain why this was not done.
[36].
It could in any event be argued that the evidence of
what the
second
respondent
had
said
would
not,
at
least
as
far
as
he
as
a
party
and
as
a
witness
are
concerned,
be
hearsay
evidence.
The
evidence
was clearly not tendered as proof of the contents thereof.
It was
tendered merely to prove that the second respondent had in
fact made
such remarks.
The remarks
were not statements of fact,
but rather
statements of intention
[17]
.
[37].
The applicant in reply appended an affidavit by Mr Swart, in which he
confirms the correctness of the contents of his article,
and in which
he confirms that the second respondent was the source of the contents
concerned.
[38].
Mr
Khokho
wished
Mr
Swart’s
affidavit
to
be
struck
on
the
basis
that
the
applicant
was
not
entitled
to
make
its
case
in
reply.
This
was,
however, not what the applicant did by obtaining the affidavit
from
Mr
Swart.
It
had
already
made
out
exactly
this
case
in
its
founding
affidavit and was entitled, when it was challenged, to
substantiate
it
in
reply
[18]
.
As
it
was
put
in
Standard
Bank
of
South
Africa
Ltd v Sewpersadh
[19]
the “
primary
purpose
of the replying
affidavit
is to put up evidence which serves to refute the case made out by the
respondent in his answering affidavit
”.
The applicant was
therefore
fully entitled to put up evidence in its replying affidavit to refute
the
second
respondent’s
allegation
that
he
had
been
quoted out
of context.
[39].
The furthest that the second respondent went in his answering
affidavit was to state that “
the First
Respondent
is
not intending
to
invade
land unlawfully
”. This denial is at the very best
ambiguous, in that it leaves room for an interpretation that the
intention was indeed to
“
invade
” land, but that
such invasion would according to the first respondent and its members
not be unlawful. It is difficult to
conceive of an invasion of land,
in the sense of an occupation without the consent of the owner, that
would not be unlawful, unless
the respondents’ attitude was
that the invasion of unutilised land would even in such circumstances
be lawful.
[40].
Much was made by Mr Khokho of the fact that the applicant did not
identify the property or properties in respect of which
it needed
protection.
[41].
Mr Akharwaray explained in his founding affidavit why he was
unable to do so. His explanation is borne out by
the second
respondent’s remark in the newspaper article that they “
would
be
moving into suburban areas of Kimberley
”,
without specifying which area or areas would be targeted.
[42].
Mr Khokho argued that the land intended to be invaded may even turn
out not to belong to the applicant. The orders in paragraphs
1.3, 1.4
and 1.5 of the rule
nisi
are however specifically
limited to the applicant’s properties within the Sol Plaatje
municipal area and in my view
the properties
have been sufficiently identified and
described in those orders, taking
into account the relief claimed and
the circumstances prevailing.
[43].
Mr Khokho criticised Mr Akharwaray for raising the possibility that
the land intended to be invaded may even be unsuitable
for
residential purposes. I can see no reason why Mr Akharwaray, if some
of the properties of the applicant would indeed be unfit
for human
habitation, would not be entitled (and indeed obliged) to alert the
Court to such possibility; especially
given the
secretive nature of the respondents’ plans, as described by the
second respondent to Mr Swart.
[44].
I cannot agree with Mr Khokho’s argument that the applicant has
an
alternative
remedy
in
that
it
would
be
entitled
to
apply for the
eviction of
people from its property, if invaded.
The
applicant
cannot
be
expected
to
sit
idly
by,
knowing
what
is
planned,
for
people
to
invade
its
land
and
to
unlawfully
trespass
thereon,
and
only
then
to
apply
for
relief.
To
find
that
this
would
constitute
an
alternative
remedy,
and
to
in
effect
in
the
process
allow
people
to
illegally
trespass
on
the
applicant’s
land
or
to
entice
or
influence
others to
do so, would be tantamount to “
sanctioning
respondents’
unlawful
conduct
”
[20]
.
It
is
in
any
event
common
knowledge
that
applications
in terms of
The
Prevention of Illegal Eviction from and
Unlawful
Occupation
of
Land
Act
[21]
can
become
relatively
protracted.
[45].
There is no indication that alternative dispute resolution would have
provided the applicant with an effective alternative
remedy, as also
suggested by Mr Khokho. There was in fact no dispute, and such a
clear threat of an unlawful invasion of land would
probably not have
been susceptible to resolution in that manner.
[46].
The balance of convenience is not at this stage, where a final
interdict is in effect applied for, a factor, but
insofar as it may
have been, it would clearly have favoured the applicant. The
respondents did not point out any inconvenience
that they would
suffer if they were not allowed to invade land unlawfully and in
contravention of the provisions of the
Trespass Act
.
[47].
Subject to what follows, I am therefore satisfied that the
requirements for the confirmation of the rule
nisi
have
been met. The applicant has a clear right to the protection of its
ownership of the properties belonging to it and it is equally
clear
there was a reasonable apprehension of the invasion of that right.
[48].
The first qualification to this is that I do not think that the
applicant has made out any case for the order concerning
demonstrations and gatherings.
[49].
Although it is suggested that such a demonstration or gathering may
lead to an invasion of land, there is no actual evidence
to this
effect. There is also no evidence that any land invasions that had
already taken place, or any plans of such invasions,
had emanated or
originated from such demonstrations or gatherings.
[50].
There is also no evidence of a threat to conduct such demonstrations
or to hold such gatherings without complying with the
relevant
statutory provisions. The applicant has therefore not shown
that it needs added protection in the form of such an
order, in other
words in addition to the provisions of the
Regulation
of
Gatherings Act
, which in any
event provides for such notice of
gatherings and for authorisation
of demonstrations.
[51].
The
second
qualification
is
in
respect
of
the
so-called
fourth
and
further
respondents.
I am aware
of the fact that in some instances
unidentified
people may be cited and may be interdicted
[22]
.
In those
cases,
however,
the
intended
respondents,
albeit
not
identified
by
name,
could
at
least
be
identified
with
reference
to
the
specific
property
that they occupied or planned to occupy.
[52].
The position in the present matter is completely distinguishable. The
people targeted by the relief in paragraphs 1.1, 1.3,
1.4 and 1.5 are
all people, even including non-members of the first respondent-
52.1)
who would
trespass in contravention of the provisions of the
Trespass
Act
and/or
entice or influence members of the
public to
do so
[23]
;
52.2)
who
would
provide
unlawful
permission to and/or entice
and/or
influence members of the public to invade or occupy
the
applicant’s property
[24]
;
52.3)
who would
themselves occupy or erect structures on such
land
[25]
;
and
52.4)
who would
damage or destroy the applicant’s property
[26]
.
[53].
As regards paragraph 1.1 of the rule
nisi
a proper case
has been made out against the first and second respondents. As far as
the first respondent is concerned, the second
respondent quite
clearly spoke to Mr Swart in his official capacity as an office
bearer of the first respondent and the latter
has in no way distanced
itself from the second respondent’s remarks.
[54].
A case has in my view also been made out in respect of members of the
first respondent. The first respondent has, as already
mentioned, not
distanced itself from the threats made by the second respondent in
his official capacity and in circumstances where
the threats could be
viewed as having in effect been made on behalf of the first
respondent. The members of the first respondent
as an organisation
are in effect represented by it, and its association with and
ostensible approval of the second respondent’s
threats, at the
very least after the fact, must therefore be attributed to them. In
fact, the second respondent did not threaten
to act alone. He made it
very clear that the invasion would be carried out by the “
supporters
”
of the first respondent as a “
party
” and his use
of the word “
we
” could in the circumstances only
have been a reference to himself and other members of the first
respondent. The rule
nisi
was published as ordered and none of
the other members have come forward to oppose the
application or
to disassociate
themselves from the second respondent’s
threats. Being interdicted
from unlawful and even
illegal conduct could in any event not
prejudice
them. In my view the
final order should however, like the rule
nisi
,
be published in an attempt to inform members of the first respondent
of the final orders.
[55].
Very much the same applies to the third respondent. He is the
provincial chairperson of the first respondent. He opposed the
application and it would have been very easy for him to simply
explain that what the second respondent was alleged to have said
did
not represent his plans and views, nor those of his party. Mr Van
Tonder, counsel for the applicant, however correctly conceded
that no
case had been made out that the third respondent had actually himself
threatened to invade the applicant’s property
or to be part of
such an invasion. This will be taken into account when costs are
considered.
[56].
No case has been made out in respect of non-members of the first
respondent, and members of the public in general, as regards
any of
the relief contained in paragraph 1.1. There is no evidence that such
persons may trespass or may entice or influence others
to do so. This
was also correctly conceded by Mr Van Tonder.
[57].
As far as paragraphs 1.3 and 1.4 of the rule
nisi
are
concerned I am again of the view that a proper case has been made out
against the first, second and third respondents, as well
as against
members of the first respondent, but not as
far as members of
public in
general are concerned.
[58].
As regards paragraphs 1.3 and 1.4 of the rule
nisi
the
added problem is that the relief is not restricted to unlawful
invasion, occupation and erection of structures. Those
orders should
be amended accordingly. In my view such an amendment could not cause
any prejudice.
[59].
The further qualification would be in respect of paragraph 1.5 of the
rule
nisi
. There is no evidence of a threat or an apprehension
of damage to or destruction of the applicant’s property. It
follows
that paragraph 1.5 of the rule
nisi
cannot be
confirmed.
[60].
Even so the applicant would still have been successful in its
application to a substantial extent and would in my view be
entitled
to its costs.
[61].
In view of what has been said regarding the third respondent I do not
think that it would be fair to hold him liable for costs.
Although he
opposed the application, he never even deposed to an affidavit.
[62].
The following orders are therefore made:
1.
THE ORDERS IN PARAGRAPHS 1.2 AND 1.5 OF THE RULE
NISI
ISSUED ON 13 APRIL 2015 ARE DISCHARGED.
2.
THE FIRST, SECOND AND THIRD RESPONDENTS, AS WELL AS MEMBERS OF THE
FIRST RESPONDENT, ARE INTERDICTED AND PROHIBITED FROM COMMITTING
AN
OFFENCE IN TERMS OF SECTION 1 OF THE TRESPASS ACT, 6 OF 1959, AND/OR
ENTICING AND/OR IN ANY WAY WHATSOEVER INFLUENCING MEMBERS
OF THE
PUBLIC TO COMMIT SUCH AN OFFENCE.
3.
THE FIRST, SECOND AND THIRD RESPONDENTS, AS WELL AS MEMBERS OF THE
FIRST RESPONDENT, ARE INTERDICTED AND PROHIBITED FROM PROVIDING
ANY
KIND OF UNLAWFUL PERMISSION TO AND/OR ENTICING AND/OR IN ANY WAY
WHATSOEVER INFLUENCING MEMBERS OF THE PUBLIC TO UNLAWFULLY
INVADE
AND/OR OCCUPY ANY IMMOVABLE PROPERTY OF THE APPLICANT SITUATED WITHIN
THE BOUNDARIES OF THE SOL PLAATJE MUNICIPAL DISTRICT.
4.
THE FIRST, SECOND AND THIRD RESPONDENTS, AS WELL AS MEMBERS OF THE
FIRST RESPONDENT, ARE INTERDICTED AND PROHIBITED FROM UNLAWFULLY
TAKING OCCUPATION OF AND/OR ERECTING STRUCTURES ON ANY IMMOVABLE
PROPERTY OF THE APPLICANT SITUATED IN THE SOL PLAATJE MUNICIPAL
DISTRICT.
5.
THIS ORDER SHALL BE SERVED ON MEMBERS OF THE FIRST RESPONDENT BY
MEANS OF ONE PUBLICATION THEREOF IN THE DIAMOND FIELDS ADVERTISER.
6.
THE SOUTH AFRICAN POLICE SERVICE IS DIRECTED AND AUTHORISED TO TAKE
ALL REASONABLE AND NECESSARY STEPS TO GIVE EFFECT TO THIS
ORDER.
7.
THE
FIRST
AND
SECOND
RESPONDENTS
ARE
ORDERED
TO
PAY THE APPLICANT’S COSTS JOINTLY AND SEVERALLY, THE
ONE TO PAY THE OTHER TO BE ABSOLVED.
_________________________
C
J OLIVIER JUDGE
NORTHERN
CAPE DIVISION
For
the applicant: Adv A G Van Tonder
Instructed
by: Van de Wall and Partners, Kimberly
For
the first, second and third respondents: Adv N D Khokho
Instructed
by: Mzumzu Attorneys, Kimberly
[1]
6 of 1959
[2]
205 of 1993
[3]
Compare
Naidoo
and Another v Matlala NO and Others
2012
(1) SA 143
(GNP) para [15];
Clifford
Harris
(Pty) Ltd v SGB Building Equipment (Pty) Ltd
1980
(2) SA 141
(T) and
Van
Heerden v
Bezuidenhout
2014
JDR 0668 (GNP) para [25].
[4]
Case number 639/2015 in this Division.
[5]
See
Myers
v Abrahamson
1951
(3) SA 438
(C) at 445, where the similarly worded predecessor of
sub-
rule
(10) was considered.
[6]
Compare
Msunduzi
Municipality v Natal Joint Municipal Pension/Provident Fund and
Others
2007
(1) SA 142
(N);
South
West Africa National Union v Tjozongoro and Others
1985
(1) SA 376
(SWA)
at 381D –
E.
[7]
Compare
Sifris
& Miller, NNO v Vermeulen Bros
1973
(1) SA 729
(T) at 730 E-F
[8]
Compare
Ganes
and Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) paras [18] and [19];
Unlawful
Occupiers School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at 205J – 207G.
[9]
1992 (3) SA 500 (W)
[10]
Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd
2007 (2) SA 363
(SCA) para [32]
[11]
1961 (1) SA 669 (T)
[12]
1982 (3) SA 1068
(C) at 1071D – 1072C
[13]
2015 (4) SA 72
(WCC) para [35]
[14]
1991 (3) SA 276 (SE)
[15]
Ibid,
at 284J to 285E
[16]
45 of 1988
[17]
Compare
S
v Holshausen
[1984] ZASCA 100
;
1984
(4) SA 852
(A) at 858;
International
Tobacco Co (SA) Ltd v United
Tobaccos
Cos (South) Ltd
1953
(3) SA 343
(W) at 345 – 346 B;
May
v Multilateral Motor Vehicle
Accident
Fund
2008
JDR 0861 (BHC) at pp 3 & 4;
Randfontein
TLC v Absa Bank Ltd
2000
(2) SA
1040
(W)
at 1052E – 1053F
[18]
Compare
Leonard
Dingler (Pty) Ltd v National Entitled Workers’ Union (NEWU)
and Others
2001
JDR 0509
(LC) at p. 6
[19]
2005 (4) SA 148
(C) at 159G
[20]
Compare
Candid
Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd
1992
(2) SA 459
(CPD) at
463H
[21]
19 of 1998
[22]
Compare
Unlawful
Occupiers School Site v City of Johannesburg, supra
;
Blum NO
v Seshoka
2015
JDR 0893
(GP)
[23]
Paragraph 1.1 of the rule
nisi
[24]
Paragraph 1.3 of the rule
nisi
[25]
Paragraph 1.4 of the rule
nisi
[26]
Paragraph 1.5 of the rule
nisi