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[2013] ZAECMHC 38
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Nyandeni Local municipality v Ndamase and Others (1937/2012) [2013] ZAECMHC 38 (12 December 2013)
IN THE HIGH
COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
: MTHATHA
CASE NO. 1937/2012
In the
matter between:
NYANDENI
LOCAL
MUNICIPALITY
Applicant
And
MTHAWELANGA
NDAMASE
1
st
Respondent
ZANELE
MZIMVUBU
2
nd
Respondent
THAMSANQA
NGEBHA 3
rd
Respondent
MTSHAVULA
BHADUZA 4
th
Respondent
ZOLANI
BHODOZA 5
th
Respondent
NTSHEVULA
KHANU 6
th
Respondent
THE STATION
COMMISSIONER,
LIBODE
POLICE
STATION 7
th
Respondent
JUDGMENT
GRIFFITHS,
J.:
[1]
On 14 September 2012 this Court issued a rule nisi in the applicant's
favour on an urgent basis in terms of which the respondents
were
called upon to show cause as to why they should not be interdicted
and restrained from demarcating or allocating land falling
within the
area described as "Remainder of Erf 90, Libode ("the
property"), from erecting structures thereon and
as to why they
should not restore full possession of the property to the applicant.
The applicant was also granted interim relief.
The matter was opposed
by the first, second and fifth respondents (to whom I shall, in the
balance of this judgment, refer to as
"the respondents")
and the necessary papers were duly filed. The remaining respondents,
having been duly served, did
not oppose.
[2]
When the matter came before me as an opposed motion, there were two
applications pending. The first of these was an interlocutory
application for revival of the aforementioned rule nisi and the
second was the main application in terms of which the applicant
seeks
confirmation of that rule nisi.
[3]
It will be convenient to deal at the outset with the application for
a revival of the rule nisi. The applicant launched a formal
application in this regard which was, once again, opposed by the
respondents. Because I intend in this judgment to decide the main
application
pari passu
with the interlocutory application, the
question of the revival of the rule nisi becomes academic and the
sole remaining question
in this regard is that of costs.
[4]
It seems from the papers that the causes of the lapsing of the rule
nisi were multilateral. The matter was adjourned, and the
rule nisi
duly extended, to an arranged opposed motion date, that being 28
March 2013. This date had been arranged with the registrar
who did
not, at the time, have his diary for 2013 with him. He accordingly
mistakenly set the matter down on the first Tuesday
during the first
court recess. In due course, and when the registrar realized his
mistake, he timeously notified the applicant
thereof. In consequence,
the applicant filed a notice to have the matter removed from the roll
on 28 March 2013 and, on that date,
there was no appearance. It is
clear therefore that on 28 March 2013, the date to which the rule had
been extended, the rule nisi
lapsed.
[5]
The respondents, represented by Mr. Mtshabe, argued, as I understood
the argument, that rule 27(4) which entitles a party to
revive a rule
nisi which has been discharged by default of appearance by the
applicant, precludes the applicant from obtaining
its relief in this
regard. His first argument in this regard, again as I understood it,
was that the applicant was not in "default
of appearance"
by virtue of the fact that it had previously filed a notice of
removal. There is little merit in this suggestion.
The second
submission was that the respondents might suffer prejudice were the
rule nisi to be revived. Because, as I have said,
the only reason as
to why I am considering the merits of the application for revival is
that it impinges on the question of costs,
I do not see that this can
be an issue. In any event, if the applicant’s contentions are
correct that the respondents were
invading its land, such actions are
unlawful and subject to an interdict.
[6]
In the final analysis, it seems to me that the applicant was dilatory
in allowing the rule nisi to lapse as it could have been
extended by
the judge doing duty during recess, and in not applying forthwith for
revival of the rule. In the circumstances, the
applicant has sought
an indulgence from the court and should thus pay the costs of, at
least, an unopposed application of this
nature. However, because of
the reasons I have expressed, I am of the view that the respondents’
opposition to the interlocutory
application was unnecessary and, if
they were not indeed invading the land, interim relief relating
thereto could not have had
any effect on them. Accordingly, I believe
that they should be put to the costs of such opposition.
[7]
With regard to the main application, a number of technical defences
were raised by the respondents relating to
locus standi
,
authority and the question of successive title. However, when Mr.
Mtshabe appeared before me, he indicated that the main thrust
of
their defence would be that the applicant no longer has effective
title to the land to prevent the respondents from utilizing
the land,
or to evict the respondents therefrom.
[8]
The respondents have, in effect, denied that the applicant remains
the owner of the property, despite the fact that the applicant
has
placed before the court a title deed which
prima facie
indicates its title thereto. This denial is based upon a settlement
agreement which was concluded pursuant to a land claim of the
Mdlankomo - Moyeni community. This agreement was entered into between
the Department of Land Affairs, The Regional Land Claims
Commission
for Eastern Cape and the aforementioned two communities. The
agreement deals with the settlement of restitution claims
which were
made on behalf of a number of households from the aforementioned
communities and was settled on the basis that a portion
of the land
claim would be restored to the communities whilst the remainder which
could not for one reason or another be so transferred,
would be the
subject of financial restitution. Regarding that portion of the land
which was to be restored, the agreement provides
that a legal entity
to be known as the "Communal Property Association" ("CPA")
was to be formed and that this
property is to be transferred to the
CPA for the purposes of the members of these communities. It is
indeed, common cause that
the CPA has been formed but that the
property concerned has not yet been transferred to it. Accordingly,
the property which is
apparently the subject of the land invasion
still remains registered in the name of the applicant.
[9]
Mr. Zono, who appeared on behalf of the applicant, has submitted that
whilst the property remains registered in the name of
the applicant,
the applicant remains owner of the property and the respondents have
no right thereto. As the respondents have not
established any further
right to possession of the property, it seems that this submission by
Mr. Zono has to be correct. Unless
and until such transfer takes
place, the respondents cannot, in my view, make use of the land for
any purpose whatsoever as they
have no title thereto.
[10]
Whilst preparing this judgment a further aspect to my attention. That
is the question as to whether or not the applicant has
established
that the land invasion indeed took place. Because I had some concern
in this regard I called for further, supplementary,
heads of argument
to deal with this point. Mr. Zono has in this regard pointed me to a
number of allegations made by the first
respondent in the answering
affidavit deposed to by him on behalf of himself and on behalf of the
other two respondents who have
opposed the application. These
allegations make it quite clear that the land invasion had indeed
taken place. The first respondent
maintained in the answering
affidavit that he had been instrumental in preventing "the
people" from building the various
structures on the property
concerned until such time as they had consulted their lawyers on the
question of ownership of the property.
However, whilst the land
invasion may well have occurred, the respondents themselves have
denied explicitly that they were involved
in the land invasion itself
or that they were involved in the allocation of any plot. It is clear
therefore that there is a marked
dispute of fact in this regard which
cannot be resolved on the papers. It is not, as submitted by Mr.
Zono, a dispute of fact which
is so far fetched or untenable that it
can be resolved on the papers in favour of the applicant without the
hearing of oral evidence.
In this regard he has submitted that it is
palpably improbable that the first respondent as the traditional
leader with traditional
authority over the land in question can do
nothing about the demarcation of the land under his traditional
authority. This may
well be so but it is also so that he was directly
involved in the question of resolving this issue. His denial that he,
the second
and fifth respondents were involved in the allocation of
plots to various people cannot, in my view and in the circumstances,
be
regarded as being so far fetched or clearly untenable that I would
be justified in rejecting such denial merely on the papers. Mr.
Zono
has not requested this court to refer this issue to oral evidence in
terms of rule 6(5)(g) and this dispute must accordingly
be resolved,
for the purposes of this application, in favour of the
respondents
[1]
.
[11]
As I have indicated, it was only the first, second and fifth
respondents who opposed this application. Accordingly, the applicant
is entitled to an order against the third and fourth and sixth
respondents, they having been properly served.
In
the circumstances, I make the following order:
1.
The
Rule Nisi which was incorporated as paragraph 2 in an order granted
by this court on 14 September 2012 is hereby revived;
2.
The
Rule Nisi is confirmed with regard to the third, fourth and sixth
respondents;
3.
The
Rule Nisi is discharged with regard to the first, second and fifth
respondents;
4.
The
third and fourth and sixth respondents are ordered to pay the costs
of the main application on an unopposed basis;
5.
The
first, second and fifth respondents are ordered to pay any costs
occasioned by their opposition to the application for revival
of the
Rule Nisi;
6.
The
applicant is ordered to pay the costs of the first, second and fifth
respondents in opposing the main application.
JUDGE
OF THE HIGH COURT
HEARD
ON
:
22 OCTOBER 2013
DELIVERED
ON
:
12
DECEMBER 2013
COUNSEL
FOR APPLICANT
:
Mr Zono
INSTRUCTED
BY
: A. S. Zono &
Associates
COUNSEL
FOR RESPONDENTS
: Mr
Mtshabe
INSTRUCTED
BY
: N. Z. Mtshabe
Inc.
[1]
Plascon Evans Paints limited v Van Riebeeck
Paints PTY limited
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at pages 634 -635