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[2012] ZAGPPHC 138
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Laforet N.O and Another v Department of Economic-Development and Another (7145/2010,7147/2010) [2012] ZAGPPHC 138 (29 June 2012)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBERS: 7145/2010/ &7147/2010
DATE:29/06/2012
In
the matter between:
MICHEL
SAM LAFORET
NO
.....................................................................
FIRST
APPLICANT
PATRICIA
JULIET LAFORET
NO
.............................................................
SECOND
APPLICANT
And
DEPARTMENT
OF ECONOMIC- DEVELOPMENT
..............................
FIRST
RESPONDENT
ENVIRONMENT
AND TOURISM: LIMPOPO PROVINCE
OBED
MOAGI
…........................................................................................
SECOND
RESPONDENT
In
re:
DEPARTMENT
OF ECONOMIC- DEVELOPMENT
ENVIRONMENT
AND
TOURISM
.............................................................
APPLICANT
And
HARMONY
TRUST.
...................................................................................
FIRST
RESPONDENT
MICHEL
SAM LAFORET
NO
..................................................................
SECOND
RESPONDENT
PATRICIA
JULIET LAFORET
NO
...........................................................
THIRD
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
This is an application to set aside an order obtained in an ex parte
application before Makgoba J on the 12 February 2010. An
amended
notice of motion was filed seeking the following order:
"1.
That the ex parte order granted by His Lordship Mr Jusctice Makgoba
on the 12 February 2010 under case number 7145/20 be
set aside.
2.
That the respondents be ordered to disclose to the above honourable
court the names of all persons that were present on the property
of
Harmony Trust, IT53221/2000 on the 15 March 2010 including the names
of the State Attorney and State Advocate and/or Attorney
and or/or
Advocate who were present at the farm;
3.
That the facts in this matter together with all the affidavits filed
under case number 7145/2010 and case number 7147/2010 be
presented to
the National Director of Public Prosecutions with the view to
prosecuting the second respondent for perjury;
4.
That the second respondent be found guilty of contempt of court, and
be sentenced to incarceration of 30 days in any jail in
South Africa;
5.
That the first and second respondent be ordered to take all necessary
steps to return the cheetah to the farm property of the
Harmony Trust
within 14 days from the date of this order, failing which the
relevant Sheriff of the area where the cheetah is currently
situated,
is authorised and ordered to take possession of the said cheetah and
return the cheetah to the farm property of the Harmony
Trust.
6.
That the first and second respondents be ordered to pay the costs of
this application on an attorney and own client scale jointly
and
severally, the one paying the other to be absolved."
This
application was opposed.
[2]
The order of Makgoba J in case 7145/2010 which is sought to be set
aside reads as follows:
u1.
That pending the finalization of the application under case number
7147/20 an interim order is granted authorising that:
1.1
The Sheriff with the assistance of the Environment Compliance officer
of the applicant and the members of the SAPS are ordered
to remove a
cheetah which is kept at farm Harmony, situated at number 140KT324
and forthwith place same at the Kapama Breeding
Cheetah Project for
safekeeping;
2.2
in the event of the cheetah not being found at the above mentioned
farm then in that event the second and third respondents
are to
identify the whereabouts of the cheetah to the Sheriff, failing which
the second and third respondent be held in Contempt
of Court";
The
ex parte application was brought on an urgent basis for an order
authorising the removal of a cheetah from the Mopaya Lodge
('the
property5) pending the finalization of the main application. It was
set down for hearing on the 12 February 2010 and a copy
of the main
application and annexures (which had not as yet been served on the
respondents) were annexed to the ex parte application
for
consideration. The main application was to be heard at a later date.
THE
EX PARTE APPLICATION
Applicant
[3]
The following related to the history of the matter up to the
spoliation order and the issue of a permit on the 9 August 2008
and
valid up to the 310cotober 2009:
1
It was averred that the applicants were not aware that the
respondents had been in possession of a cheetah without the required
licence from the year 2007 until such time that they had been tipped
off by an employee of the respondents of the presence of the
cheetah
on the property. The report was that the cheetah had been illegally
kept in a small enclosure. As a result the applicant
confiscated the
said cheetah.
2.
The applicants disputed the fact that the cheetah had been found
injured and close to death on the property and as then explained
by
the respondents that it had been kept there for the sole purpose of
nursing it back to health.
According
to the applicant the respondents had to apply for a permit to possess
the cheetah for a specific period until it had recovered
to fend for
itself as a free roaming wild animal.
3.
After the confiscation of the cheetah by the applicant, the
respondent brought an urgent application for a manadament van spolie
in the magistrate's court Tzaneen, for the return of the cheetah and
the order was granted. A permit was consequently issued to
the
respondents to allow them to keep the cheetah with the sole purpose
of rehabilitating it and the said permit expired on the
31 October
2009.
[4]
The applicant averred that the respondents failed to restore the
cheetah to its wild life despite having undertaken to do so.
The fact
that it was never intended by the respondents to keep the cheetah
permanently, there was no reason why it should not be
removed from
the property and kept at a neutral place pending the determination of
the rights of the parties over the animal.
[5]
The ex parte application was based on the following grounds :
1.
The applicant was the custodian in law of all protected animals and
that its
Environmental
Compliance officer was entitled under certain circumstances to keep
and or release in a suitable environment an animal
removed from the
custody of any person. The applicant averred that a permit was
required in order to possesses a cheetah because
it was an endangered
species and was classified as 'Protected Wild Animals5 under the
Limpopo Environmental Act 7 of 2003.
2.
The applicant averred that there was a well grounded apprehension of
irreparable harm to be suffered by it in that even if it
succeeded in
the final relief that applicant would suffer prejudice because the
respondent may dispose of the animal. The respondents
were not aware
of the status and or condition of the cheetah despite the fact that
the respondent were legally obliged to make
reports to the applicant.
Furthermore that the facilities where the cheetah were kept were not
approved by the environmental compliance
officers which may place the
life of the cheetah itself or lives of anyone in such surrounding
area in danger.
3.
There would be no prejudice to the respondents to the grant of the
interim order.
MAIN
APPLICATION (DEPARTMENT OF ECONOMIC DEVELOPMENT-ENVIRONMENT AND
TOURISM)
[6]
The order sought in this application was for the possession of the
cheetah to be restored to the applicant to be kept at its
facilities
for purposes of rehabilitation with the purpose of restoring it to
its normal wild life. The applicant conceded that
the order restoring
possession of the cheetah to the respondents by the magistrate during
2008 was proper. The applicant averred
that since the permit for the
possession of the cheetah had expired on the 31 October 2009, the
respondents were obliged to voluntarily
return the cheetah and since
they had failed to do so, the applicant was entitled to approach the
court for a mandatory interdict.
Mr CHM Steyn an attorney for the
applicants was mandated to depose to the founding affidavit because
the applicants had been out
of the country. He averred that the
applicants had been harassed by the respondents, in particular the
second respondent. The cheetah
had been kept by the applicants on the
property and possession thereof was legitimized by the issue of a
permit the 9 August 2008
and valid until the 31 October 2009. The
respondents initiated criminal charges against the first applicant
because of the illegal
possession of the cheetah before the
spoliation order and these charges were later withdrawn.
According
to Mr Steyn the first applicant had intended to start a cheetah
breeding project. Efforts to acquire this permit were
thwarted by the
respondents after the first applicant had won his spoliation and
criminal cases.
Mr
Steyn averred that subsequent to this incident and out of the blue,
the lodge was raided on the 16 February 2010 at five o'clock
in the
morning. During such raid the first respondent was represented by the
second respondent, a veterinary surgeon, other officers
from the
nature conservation and, police officers. The second respondent
served an ex parte order mentioned above. The respondents
were
looking for a cheetah kept in an enclosure. According to Mr Steyn no
cheetah had been kept in an enclosure. Furthermore, that
it was
common knowledge on the property that when it was realized that the
validity of the permit was to expire, the applicants
had released the
cheetah on the 17 October 2009 and that the event had been recorded
on video. Since the applicants had released
the cheetah after its
rehabilitation and into the wild, it was no longer necessary for them
to apply for a permit. The cheetah
was free roaming on the three
hundred and forty hectares and was still on the property
alternatively, as cheetahs were known to
roam free in the area
between the property and neighbouring farms, as far as the applicants
were concerned the cheetah could also
have been roaming in a much
larger area than just the property of the applicants when the ex
parte application was launched.
[9]
As a result of the raids on the property on the 16 February 2010, 2
March 2010 and 15 March 2010, several letters were addressed
to the
State Attorney regarding the ex parte and main applications and in
particular that the ex parte application had been launched
in bad
faith. The other issue raised by the applicants was that the second
respondent had been in contempt of the court order of
the magistrate
in the spoliation application. The State Attorneys Office did not
respond to these letters.
[10]
It was averred by Mr Steyn that the raids on the property were a
harassment of the first applicant and his employees and constituted
a
disruption of first applicant's business. The respondents conducted
their search of the cheetah on the property using the vehicles
of the
applicants. There were threats of arrest of the first applicant's
staff and the threat to review all permits relating to
other game on
the farm. During the last raid the second respondent added a State
Attorney, and Advocate to his entourage.
[11]
According to Mr Steyn the ex parte application referred to a cheetah
kept in a small enclosure on the property and which was
held without
a permit and, that the Court Order clearly authorised the removal of
a cheetah kept in a small enclosure and not the
search of a wild
cheetah on a large property. The first applicant had been cleared of
all wrongdoing in the civil and criminal
proceedings before the
magistrate and that the ex parte order was obtained without
disclosing all the relevant factors to the court.
It was averred that
the order had been incorrectly granted against the Trust, as a Trust
cannot be cited as a separate party and
that for these reasons the
order should be set aside.
[12]
In reply the respondents conceded that the property hand been raided
on various occasion after the ex parte order was granted
but denied
any wrong doing on their part. It was averred that during the first
raid the first applicant advised that the cheetah
had been released
into the wild. The employees were not cooperative in allowing access
to the property. The said cheetah was later
seen on the property on
the 23 and 24 March 2010 and that it had not been released into the
wild as averred by the first applicant.
The cheetah was darted and
removed to be kept as the Kapama Cheetah Centre at Hoedspruit,
Limpopo.
[13]
Regarding the prayers sought in paragraph [1], it is my view that
they also to a large extent dealt with the issues in the
main
application. Prayers 2, 3 and 4 are not relevant to the determination
of the matter before me. Prayers 2 and 3 relate to the
alleged
harassment of the employees on the property and disruption of the
eco-tourism business of the applicants by the respondents
and
entourage during the raids and the alleged perjury by the second
respondent. The applicants are within their right to initiate
any
criminal or civil proceedings against the respondents and the state
attorney's office. It was not necessary to approach the
court for the
grant of the orders concerned. The applicants are in possession of
copies of the affidavits of the second respondent
and these can be
handed over to the police or the National Director of Public
Prosecutions, to consider prosecution for perjury.
. In as far as
prayer 4 is concerned there is nothing that should prevent the
applicants from instituting action against the respondents
for
payment of the taxed bill of costs and for damages incurred in
respect of the radio transmitter in accordance with the magistrates
order. The second respondent was acting in his capacity as an
official of
the
first respondent. Prayers 1
[14]
The applicants had a long standing association with the cheetah which
began
during
December 2006. The cheetah was about three years of age when it was
found injured and then kept in an enclosure, given treatment
and
rehabilitated and released into the wild in January 2008. Shortly
thereafter it was caught in a snare on the property, it was
treated
and fitted with a radio transmitter. A hole was made in the fence to
the property to allow for the free movement of the
cheetah in and out
of the property and it was fed by the applicants on advise of Dr
Fontbonne. When the applicants were engaged
in these activities and
prior to the confiscation of the cheetah by the respondents they were
not in possession of a permit. The
spoliation application before the
magistrate was launched because the respondents went onto the
property and confiscated the cheetah
without a court order. It was
only after the said order was granted that the applicants obtained a
permit to keep the cheetah.
The sole purpose was to rehabilitate it
and to return it to its natural habitat. The permit expired on the 31
October 2009.
[15]
It does not appear as if there was any communications between the
applicants and the respondents regarding the cheetah during
the
duration of the validity of the permit. In my view, the respondents
assumed that the cheetah was still in possession of the
applicants
and launched the ex parte and main application because it submitted
that the applicants had a responsibility to report
on the status and
condition of the cheetah and that the respondents had a
responsibility to ensure that it was kept in an approved
environment
and or natural habitat after the expiration of the permit.
[16]
The applicants stated that when they realized that the permit was
about to expire they released the cheetah into the wild.
It was
submitted on their behalf that the catching of the cheetah on the
property after it had been released into the wild was
an unlawful act
and outside the authority of the respondents. Having regard to this
background, it is my view that, had the respondents
been notified of
the release of the cheetah into the wild before the expiration of the
permit on the 31 October 2009, it would
not have laboured under the
wrong impression that it was still in the possession of the
applicants and kept in an enclosure on
the property. The respondents
would probably have played a role in the placement of the cheetah as
entrusted to them by section
41 of the Limpopo Environmental Act 7 of
2003.
[17]
When the ex parte application was considered the court was also asked
to have
regard
to the main application and attachments. The interim order was not
confined to a removal from an 'small enclosure'. It authorized
the
removal from the property pending the finalization of the main
application. Even though the applicants were not served with
the
papers prior to the order being granted, I see no reason to set aside
the ex parte order because they would have had opportunity
to
ventilate their case in the main application.
Prayer
5
[18]
The cheetah was removed from the property in terms of the interim ex
parte order. It was averred by the applicants that the
cheetah was
released into the wild, when it was realized that the permit was
about to expire, that therefore it was free roaming
on the property
and as far as they knew even on the neighbouring farms. It was
submitted for the applicants that they were therefore
not involved in
any restricted activity and did not require a permit because they
were not in possession of the cheetah. If the
cheetah was roaming
free on the property and the neighbouring farms as stated by the
applicants then they would therefore not be
entitled to the return of
the cheetah to be released specifically on the property of the
applicant. It is my view also that that
they would not succeed with a
rei vindicatio because, according to Mr Steyn the said cheetah after
its release was not confined
to roam in its wild state only on the
property of the applicants.
[19]
The ex parte order was incorrectly granted against the Trust,
however, the trustees were also cited as second and third
respondents,
therefore the order in as far as it affected them as
representatives of the trust was correct.
[20]
In the result the following order is granted:
1.The
application is dismissed;
2.
Each party to pay its costs.
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON: 07 JUNE 2011
JUDGMENT
RESERVED ON: 07 JUNE 2011
ATTORNEYS
FOR THE APPLICANT: TASMOND AYRE ATTORNEYS
COUNSEL
FOR THE APPLICANT: ADV. R DU PLESSIS / Z. F KIL
ATTORNEYS
FOR THE RESPONDENT:THE STATE ATTORNEYS
COUNSEL
FOR THE RESPONDENT: ADV. T MOTSHWANE