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[2013] ZAGPPHC 321
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Sibuyi v Nkambeni Tribal Authority and Others (29987/2011) [2013] ZAGPPHC 321 (1 November 2013)
NOT
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 29987/2011
DATE:01/11/2013
In
the matter between:
MAYINGELE
DOCTOR
SIBUYI
................................................................
Applicant
and
NKAMBENI
TRIBAL AUTHORITY
..................................................
1st
Respondent
EPHRAIM
MHAULE
…..................................................................
2nd
Respondent
PETRUS
MABUZA
..........................................................................
3rd
Respondent
WAIT
RAY BKEKISISA
MHLANGA
...............................................
4th
Respondent
JUDGMENT
MAGARDIE
AJ
1.
In this matter the Applicant seeks to restore undisturbed possession
of a certain piece of land. On 25 October 2010, exactly
three years
ago, Van Der Byl AJ granted an order in terms of which, inter alia,
the First and Second Respondents were ordered to
restore possession
and occupation of the land in question to the Applicant.
2.
The First and Second Respondents sought to rescind the order made by
Van Der Byl AJ. However, the application for rescission
was
dismissed. After the dismissal of the rescission application, the
First and Second Respondents intimated that they would apply
for
leave to appeal, which they did not do. Despite the dismissal of the
rescission application, the First and Second Respondents
did not
perform in terms of the court order; that is to restore the
Applicant’s possession of the land.
3.
On or about 20 July 1997 the Applicant approached the First
Respondent with a request for allocation of communal land in order
to
build a college styled Mpumalanga Business College and to promote
youth tourism. At that stage, the chief of the First Respondent
was
one Mr George Mhaule. Chief Mhaule died during 2004.
4.
It appears that after the demise of the late chief, the successor,
being the Second Respondent herein, started to allocate the
Applicant’s land to the Third and Fourth Respondents. The Third
and Fourth Respondents also started to allocate some portions
of land
to other people. The Third and Fourth Respondents, and/or their
associates, blocked the entrance leading to the Applicant’s
property thereby preventing the Applicant from having access to his
property.
5.
In his papers the Applicant stated that after speaking to the late
chief, he was allocated the land that is the subject matter
of this
application. However, on the same day, the chief also opined that the
land could not be given to a close corporation, instead
the
allocation was made to the Applicant personally.
6.
The Applicant amended his Notice of Motion and also joined the Third
and Fourth Respondents to the proceedings. The amendment
and joinder
application were not contested.
7.
The Respondents did not contest the Applicant’s version of the
events; as such the averments in the founding papers should
be
accepted as they are.
8.
The strand of the Third and Fourth Respondents case is that the
Applicant lacks the requisite locus standi to make the application.
The argument appears to be founded on the purported liquidation of
the Mpumalanga Business College CC. The apparent existence of
the
liquidation was disclosed by the Applicant in his founding papers.
However, there was no sufficient clarity as to the true
state of such
liquidation. Some computer printout was annexed in the papers
depicting that the close corporation was in the process
of voluntary
liquidation. The Applicant categorically stated that he was not aware
of the liquidation. Such being the case, it
boggles the mind as to
how the close corporation would be in voluntary liquidation without
the knowledge of the sole member thereof.
9.
The nub of the Third and Fourth Respondents’ argument was that
the land was not allocated to the Applicant as a person,
but to the
college as a close corporation. It followed, so the argument
proceeded, that the Applicant had no required locus standi
to
institute proceedings on behalf of the close corporation.
10.
It was common cause that the Applicant was the sole member of the
very close corporation. After the resignation of a certain
Mr Barry
Cadle, the Applicant became the sole member of the close corporation.
It may be said that the close corporation was the
Applicant’s
alter ego.
11.
What is also clear is that the chief attested to a confirmatory
affidavit, to the effect that the late chief allocated the land
in
question to the Applicant to use same for the development of a
college, vegetation and accommodation. Clearly the chiefs affidavit
has cleared any uncertainty about the exact person to whom the land
was allocated.
12.
The issue of whether Mr Cadle had interest in the land in question
irrespective of his resignation as a member of the close
corporation
does not arise. The bottom-line is that, in his affidavit, the chief
stated that he allocated the land to the Applicant
and that the
Applicant is the only one who holds the right of occupation.
13.
I was baffled by the submissions made by the legal representative of
the Third and Fourth Respondents. Firstly their point of
departure
was that the Applicant lacked locus standi. During argument, there
was a veiled suggestion made that the land allocated
to the Applicant
might not have been done so correctly, following proper procedure.
However, when the legal representative was
taxed with the absence of
any averments either in the answering papers or heads of argument, he
simply tended to steer back to
the point of lack of locus standi.
14.
The Third and Fourth Respondents also argued that there was a dispute
of fact that could not be addressed on papers. The basis
of the
submission that a dispute of fact exists is unfathomable when regard
is had to the fact that the Third and Fourth Respondents
did not file
answering papers. In John Cecil Wightman t/a JW Construction v
Headfour Pty Ltd & Another
1
,
the following was said:
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances
where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore
be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party
and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that the disputing
party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true
or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have difficulty in
finding that the
test is satisfied. ”
15.
In order to succeed, the Third and Fourth Respondents should have
presented facts, which are within their personal knowledge,
to
counter the Applicant’s version. The Third and Fourth
Respondent’s failure to do so means that the court can proceed
to accept the Applicant’s version.
16.
The foregoing being the case, it stands to reason that the dismissal
of the Third and Fourth Respondents’ point of lack
of locus
standi is fatal to their case. Except for having presented argument
on lack of locus standi, there was no version to gainsay
that of the
Applicant. The Third and Fourth Respondents chose to rely on the
answering papers in the spoliation proceedings. Unfortunately
such
was not the version herein.
17.
The question that is left to be decided is whether the Applicant has
succeeded in presenting sufficient facts entitling him
to the relief
prayed for. I am of the considered view that the Applicant has indeed
made out a case for the relief sought herein.
The Applicant has been
able to demonstrate that he has a clear right and that there is fear
of irreparable harm that is being occasioned
by the Respondents’
continued activities on the land if the relief is not granted. There
is also no alternative remedy that
the Applicant can resort to in
order to protect his interest in the land in question.
18.
As it is eminently evident, the Applicant attempted on more than one
occasion to stop the activities of the Respondents by making
applications for interdictory relief. After succeeding with the
application, the First and Second Respondents decided to make
application for rescission of the order. The application for
rescission was made; however, the application was dismissed. The
First
and Second Respondents intimated that they would appeal the
dismissal of the rescission application. However, the First and
Second
Respondents neither appealed nor restored the Applicant’s
possession of the land.
19.
In the result, I am of the considered view that the application
should succeed. I make the following order:
19.1
That prayers 1, 2, 3, 4, 5, 6, 7 and 9 of the amended notice of
motion are granted.
S
L MAGARDIE
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT: P J LOURENS ATTORNEYS
C/O
DBM ATTORNEYS
1st
Floor, Room 102 Olivetti House 79 Steenbok Avenue
100
Pretorius Street Pretoria
Tel:
012 644 1511 Ref: GL069/16
ON
BEHALF OF THIRD AND
FOURTH
RESPONDENTS: MOHLABA & MOSHOANA INC.
230
Malherbe Street Capital Park Pretoria
Tel:
012 328 9966
Ref:
Mr Mohlaba/ETB/CIV/M0887/11
1
(66/2007)
[2008] ZASCA 6
(10 March 2008); See also National Scrap
Metal Cape Town & Another v Murray & Roberts Ltd &
Another (809/2011)
[2012] ZASCA 47
(29 march 2012).