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[2013] ZAGPPHC 320
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Masingita Property Investment Holdings (Pty) Ltd v Zebediela Ndebele Tribal Authority and Others (6060/2013) [2013] ZAGPPHC 320 (1 November 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA
CASE
NO: 6060/2013
DATE:01/11/2013
In
the matter between:
MASINGITA
PROPERTY
INVESTMENT
........................................................................
Applicant
HOLDINGS
(PTY) LTD
and
ZEBEDIELA
NDEBELE TRIBAL
AUTHORITY
...................................................
First
Respondent
RED
DUNES OF AFRICA
CC
.......................................................................
Second
Respondent
THE
MINISTER: RURAL
DEVELOPMENT
......................................................
Third Respondent
AND
LAND FORUM
THE
MEC, LIMPOPO PROVINCIAL
DEPARTMENT
.......................................
Forth
Respondent
OF
ECONOMIC DEVELOPMENT,
ENVIROMENT
AND TOURISM
….......................................................................
Fifth
Respondent
JUDGMENT
KGANYAGO AJ:
[1]
This application came by way of a special allocation. It consists of
a main application and a counter application. In the main
application
the applicant seeks an order in the following terms:
1.1
That the respondent is interdicted and restrained from constructing a
shopping centre or any other development on the property.
1.2
That the development of a shopping centre or any other development on
the property by the second respondent be declared unlawful.
1.3
That the second respondent is ordered to demolish all structure(s) on
the property is
erected,
failing which the Sheriff of the High Court be authorized to carry
out such demolition, for the costs of which second respondent
is
reliable.
1.4
That the costs of this application on the scale of attorney and
client be borne by the second respondent.
[2]
In the counter application the second respondent is the applicant,
and the applicant is the respondent. In the counter application
the
second respondent seeks an order in the following terms:
2.1
That the applicant be ordered to restore the second respondent’s
possession of the property described as the portion of
the farm
Zebediela’s location No
123-KS,Province
of Limpopo as indicated on attachment AS4 (“the property”).
2.2
That pending the final determination of the application in case
number
6060/13
in the North Gauteng High Court, the applicant be interdicted from:
2.2.1
Trespassing on the property
2.2.2
Preventing the respondent and its employees and its contractors from
accessing the property.
2.2.3
Interfering with any of the second respondents, its employees or its
contractor’s activities on the property.
2.2.4
Damaging, destroying or removing any of the second respondent,
employees or contractor’s property.
2.3
That the applicant be ordered to pay costs of the application on the
attorney and client scale in case of opposition.
[3]
The first respondent in the main application is Zebediela Ndebele
Tribal Authority. The first respondent was not a party in
the counter
application. However, the first respondent intervened in the counter
application and supported the applicant in all
material respect.
[4]
The DJP Ledwaba ordered that both applications be consolidated and be
heard together under Case No 6060/2013.
BACKGROUND:
[5]
During 1990 Mr Mamabolo obtained permission from the Lebowa
Government to occupy a property for the purpose of a cafe on a piece
of land not exceeding 0,5 hectares in extent, together with the
improvements. Mr Mamabolo transferred his rights in terms of
permission
to occupy to Mr Tlomatsana.
[6]
On the 25th May 2007 the first respondent issued the second
respondent with a permission to occupy P.T.O on the land which was
previously allocated to Mr Mamabolo for the conducting of Sam’s
restaurant. At the time when the P.T.O was transferred to
the second
respondent, it was operated by Alfred Tlomatsana.In terms of the
P.T.O, the land allocated to the second respondent,
was to be used to
build a shopping centre.
[7]
On the 29th May 2007, the second respondent concluded a deed of sale
with Mr Tlomatsana for the purchase of the land which he
was
operating the cafe.
[8]
On the 25th July 2007, the first respondent issued the applicant with
a permission to occupy. The P.T.O issued to the applicant
was for the
development of a Shopping Centre. The land allocated to the
applicant, was overlapping into the land that was allocated
to the
second respondent.
[9]
The applicant acquired the said land from the first respondent for
the purchase Price of R500 000-00.
[10]
On the 28th January 2009, the first respondent adopted a resolution
wherein they approved the sale of a portion of the communal
land
measuring 5,0969 hectares
in
extent to the applicant for R500 000-00.
[11]
After the resolution was adopted, the applicant and first respondent
approached the third respondent (“minister: Rural
Development
and Land Reform”) seeking their consent and approval to the
transaction.
[12]
The third respondent did not approve the transaction. However, the
third respondent recommended that the transaction should
be changed
from a sale to a long lease.
[13]
The development of the applicant was going to affect certain families
who were occupying the sites where the applicant was
supposed to
construct the shopping mall. The affected families were compensated.
Mrs Tlomatsa the wife of Alfred Tlomatsa who has
since passed away,
is one of the affected families who are supposed to be compensated.
[14]
In compliance with the third respondent’s recommendations, the
first respondent as a lessor concluded a notarial long
lease of the
immovable with the applicant on 24th June 2010.The third responded
recommended that the lease period should be for
fifty years.
[15]
On the 30th August 2012, a community meeting was held wherein a
resolution was adopted in favour of the applicant. In terms
of the
resolution, the community agreed to lease the remaining extent of the
farm 123KS, measuring 5,2695 hectares in extent to
the applicant. At
that meeting, the third respondent was also represented. The
representative of the third respondent signed a
certificate
confirming the adoption of the resolution by the community adopted.
The first respondent has submitted the resolution
to the third
respondent for approval.
[16]
The applicant and first respondent proceeded to conclude a profit
sharing agreement.
[17]
During September 2012, the second respondent commenced with the
construction of their shopping centre.
[18]
On the 4th October 2012, it came to the applicant’s attention
that the second respondent has commenced with the construction
of
their shopping centre. The applicant requested the first respondent
to stop the activities of the second respondent. The applicant
did
not get a response from the first respondent; hence they initiated
the present application.
[19]
In the process the structure that the second respondent has already
started with, what was demolished. The second respondent
brought a
spoliation application application against the applicant on urgent
basis. The first respondent joined the spoliation
application as an
intervening party.
[20]
According to the first respondent, they admit that they issued a
permission to occupy to the second respondent. However, the
first
respondent states that the second respondent did not show any
commitment and seriousness to develop a shopping centre, hence
they
issued another permission to occupy to the applicant.
[21]
The first respondent admits that they are the one who have dismantled
the structure that the second respondent has started
to construct,
and that they have kept the steel structures at their premises for
storage and safe keeping.
APPLICABLE LAW:
[22]
For a party to obtain a final interdict, that party must show that:
22.1
the right which they seek to protect through a final interdict is a
clear right.
22.2
there is an injury committed or reasonably apprehended; and
22.3
the party complaining has no other satisfactory remedy.
[23]
In an application for mandament van spolie the applicant has to prove
two requirements. The first is that the applicant was
in possession
of the spoliated thing. The second is the wrongful deprivation of
possession.
EVALUATION:
[24]
The second respondent launched the spoliation application on urgent
basis. The purposes of the spoliation application were
for second
respondent to get an interim relief pending the determination of the
main application. The determination of the merits
of the main
application renders the spoliation application to be moot. The main
issue in this case is about competing rights.
[25]
It is not in dispute that during May 2007 the first respondent has
issued a P.T.O to the second respondent. It is not in dispute
that
during July 2007 the first respondent issued a P.T.O to the
applicant. The P.T.O issued to both the applicant and the second
respondent is in respect of land that overlaps into each other’s
allocated property. The fact that initially the applicant
was
allocated the communal land measuring 5, 0969 and later increased to
5, 2695 is immaterial. The fact of the matter is that
at the time
when the dispute arose, the applicant was allocated communal land to
the extent of 5, 2695 which has overlapped into
the second respondent
allocated land. That is the subject of the dispute.
[26]
According to the first respondent, they have withdrawn and/or revoked
the P.T.O issued to the second respondent at the time
when they
issued the P.T.O to the applicant. Whether the first respondent has
validly withdrawn and/or revoked the P.T.O issued
to the second
respondent, is not an issue that I am called upon to decide on it.
[27]
The first respondent when they issued the PTO, their action amounted
to administrative action. The second respondent in paragraph
65.2 of
their answering affidavit dispute the validity and authenticity of
the P.T.O that was issued by the first respondent to
the applicant on
the 12th July 2007.lt is trite law that an invalid administration act
will remain valid and legally binding until
it is set aside on review
or appeal.
[28]
In the case of Lester v Ndlambe Municipality (514/12)
[2013] ZASCA 95
Judge Majiedt JA at paragraph 28 said the following: “All
administrative actions such as the unanimous resolution of Ndlambe’s
Full Council on 5 December 2010 not to approve the final revised
plans remain valid and legally binding until set aside on reviews
or
appeal. Absent any challenge on appeal, internally in terms of
Section 9 of the Act to a review, or on review in terms of PAJA
to
competent court, that resolution had legal consequences. In Camps Bay
Ratepayers’ Association and another v Harrison and
The
Municipality of Cape Town, the Constitutional Court in referring with
approval to Oudekraal Estates (PTY) LTD v City Of Cape
Town said
that:
“
[Administrative
decisions are often built on the supposition that the previous
decisions were validly taken and unless that previous
decision is
challenged and set aside by a competent court, its substantive
validity is accepted as a fact. Whether or not it was
indeed valid is
of no consequence. Applied to the present facts it meant that the
approval, that decision must likewise be accepted
as a fact unless
and until its validly challenged and set aside.
See also: Member of the Extensive
Council for Health, Eastern Cape v Kirland Investment “
[29]
The applicant and the first respondent have signed a profit sharing
agreement on the 13th September 2010.Clause 5 of that agreement
reads
as follows: “In entering into this agreement, Zebediela hereby
undertakes that it shall not lease any other land portion
or premises
under its jurisdiction, in whole or in part, to a third party or
allow any other land portion on premises under its
jurisdiction to be
used, in whole or in part, by a third party for purpose of the
existence of this profit sharing Agreement as
provided in clause 3
here above.”
[30]
Whether this exclusivity clause is valid or not, is not an issue that
I am called upon to decide and will remain valid and
legally binding
unless set aside on review or appeal.
[31]
Clause 5 of the P.T.O issued to the applicant on the 25th July 2007
reads as follows:
“
We
further confirm that all other consent that might have been issued by
the Tribal Authority is no longer valid due to the non-compliance
of
the previous developers and that the permission for the development
of a shopping centre at Zebediela is only given to Masingita
Group of
Companies.”
[32]
The first respondent was aware that during May 2007 they issued a
P.T.O to the second respondent. However, they made an undertaking
to
the applicant that all other consents that were previously issued are
no longer valid. Whether the previous consents were validly
cancelled, or whether it was reasonable for the first respondent to
have cancelled the P.T.O issued to the second respondent within
a
period of two months, is not an issue that I am called upon to
decide. The proper remedy for the second respondent was to initiate
a
review application. It was not sufficient to merely state in their
paragraph 65.2 of their answering affidavit that they dispute
the
validity and /or authenticity of the resolution. The right remedy
must be properly set out in their papers to enable the court
to
determine it.
[33]
In the case of Wightman tla JW Construction Head four (Pty) Ltd and
Another (66/2007)
[2008] ZASCA 6
at paragraph 13 the learned Judge
Heher JA said the following:
“
A
litigant may not necessarily recognize or understand the nuances of a
bare denial or general denial as against a real attempt
to grapple
with all relevant factual allegations made by the other party. But
when he signs the answering affidavit, he commits
himself to its
content, inadequate as they may be, and will in actual exceptional
circumstances be permitted to disavow them. There
is thus a serious
duty imposed upon a legal advisor who settles an answering affidavit
to ascertain and engage with facts which
his client disputes and to
reflect such disputes fully and accurately in the answering
affidavit. If that does not happen it should
not come as a surprise
that the court takes a robust view of the matter”.
[34]
The second respondent contends that they were not aware that the
P.T.O that was issued to them during May 2007 has been revoked
and/or
withdrawn. However, when the applicant initiated this application,
they became aware that their P.T.O has been allegedly
revoked, but
they did nothing. There was nothing preventing them to challenge the
validity of the decision of the first respondent
to revoke the P.T.O
issued to them.
[35]
Applying the Wightman judgment to the present case, the applicant has
raised serious allegations against the second respondent
in their
founding affidavit, but the second respondent elected not to deal
with them accurately and fully in their answering affidavit.
The
second respondent has failed to challenge the decision of the first
respondent to grant the applicant P.T.O in their answering
affidavit.
The second respondent is therefore bound by its papers. The court
cannot grant an order which has not been prayed for.
[36]
It is immaterial at this stage to raise the issue that their property
is adjacent to that of the applicant, or that the applicant
was
initially allocated land to the extent of 5,0966 hectares and it has
now mysteriously increased to 5,2695 hectares. The first
respondent
is contending that they have revoked the P.T.O issued to them. That
is the decision which the second respondent should
be challenging.
[37]
In my view, it is clear that the applicant is the holder of the land
allocated to them by the first respondent and is entitled
to be
protected against any person who might try to oust them from
possession. The applicant has satisfied the requisite to claim
a
final interdict.
[38]
As I have already held in paragraph 24 above that the spoliation
application had been rendered moot, there is no need for me
to deal
with it.
[39]
The following order is made:
39.1
The second respondent is interdicted and restrained from constructing
a shopping centre or any other development on the property
known as
portion 3 of the remaining extent of the farm Zebediela Location no
123 registration division K.S Province of Limpopo
measuring 5,4300
hectares;
39.2
The development of a shopping Centre or any other development on the
property by the second respondent is declared unlawful;
39.3
The second respondent is ordered to demolish all structure (s) on the
property (portion 3 of the remaining extent of the farm.
Zebediela
Location no 123, registration division K.S. Province of Limpopo,
measuring 5,4300 hectares) within one month of the order,
failing
which the sheriff of the High Court is authorized to carry out such
demolition, for the costs of which the second respondent
is to be
liable;
39.4
The costs of this application including the spoliation application to
be borne by the second respondent, and such costs include
costs
consequent upon the employment of two counsel.
MF
KGANYAGO
ACTING
JUDGE OFTHE HIGH COURT