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2024
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[2024] ZANCHC 2
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Zinvomax (Pty) Ltd and Others v Iga and Others (1160/21) [2024] ZANCHC 2 (19 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1160/21
Reportable:
YES / NO
Circulate
to Judges:
YES /
NO
Circulate
to Magistrates: YES /
NO
In
the matter between:
ZINVOMAX
(Pty)
Ltd
1
st
Applicant
GA-SEGONYANA
LOCAL
MUNICIPALITY
2
nd
Applicant
COPY
CENTRUM JOINT
VENTURE
3
rd
Applicant
BILY
PURUSHOTHAMAN
4
th
Applicant
BUILT-IT
GREEN CONSTRUCTION (Pty)
Ltd
5
th
Applicant
and
ISA
MOHAMMED
IGA
1
st
Respondent
CHRISTIAAN
MKUMBO
2
nd
Respondent
JOY
ANADI
3
rd
Respondent
MOSES
NDWALANG
4
th
Respondent
TAMATIE
AOBAKWE
5
th
Respondent
LEBO
KENANI
NASALI
6
th
Respondent
IPONENT
BELLA
MOSENEKE
7
th
Respondent
V
MAKHAZA
8
th
Respondent
DESIRE
KAPHINGA
9
th
Respondent
SIDDIQUE
ABUBAKER
MOHAMMED
10
th
Respondent
DIKELEDI
MOSAKO
11
th
Respondent
WIM
JACOBS
12
th
Respondent
DANA
MOTATIINA
13
th
Respondent
BLAISE
EMEDY
14
th
Respondent
KGALELO
SIKANENG
15
th
Respondent
MUHAMMAD
RIZWAN
16
th
Respondent
THAPELO
P
GAELEJWE
17
th
Respondent
THATOENG
KEHANG
18
th
Respondent
KHALIL-UR
REHMAN
19
th
Respondent
SAREL
JOHANNES
PIENAAR
20
th
Respondent
GAO
XIA
QIANG
21
st
Respondent
HUANG
FENG
22
nd
Respondent
MIKE
BESTER
23
rd
Respondent
UNLAWFUL
OCCUPIERS OF ERF 2564
KURUMAN
24
th
Respondent
Coram: Lever J
JUDGMENT
Lever
J
1.
This is an application for the eviction of
the respondents from a
commercial property known as erf 2[...] K[...] . The said property is
currently owned by the Ga-Segonyana
Local Municipality, the second
applicant herein. The second applicant had purchased the said
property from Transnet in 2011 for
a purchase price of just under R8m
(Eight Million Rand). The second applicant’s ownership of the
said property is not disputed.
2.
The respondents occupy certain premises on
the said property and run
various businesses from such premises. There are 23 individually
named respondents. The 24
th
respondent is a catch-all to
cover all unlawful occupiers of the said property.
3.
There are 5 individually named applicants
who bring this application.
In effect, there are only 3 substantive applicants. The third
applicant won a tender to develop the
said property on behalf of the
second applicant. The third applicant is a joint venture made up of
the fourth and fifth applicants.
4.
In exchange for developing the said property,
the third applicant was
awarded a long-term lease of the property. The term of the said lease
is for an initial period of 30 years
with an automatic extension of
20 years.
5.
Then the third applicant ceded such long-term
lease to the first
applicant with the agreement and participation of the second
applicant.
6.
This application was opposed by only 4 of
the named respondents,
being the twelfth, twenty-first, twenty-second and twenty-third
respondents (the opposing respondents).
7.
The present application for eviction was launched
on 8 June 2021. The
twenty-third respondent who deposed to the main answering affidavit
in this matter, realised that he would
have to review and set aside
the decision of the second applicant to advertise and award the said
tender. Consequently, the twenty-third
respondent herein launched an
application to review and set aside the decisions of the second
applicant in advertising and awarding
the said tender. This review
application was launched in this court on 21 June 2022 under case
number 316 of 2022.
8.
This eviction application was then stayed
pending the outcome of the
said review application. The said review application was dismissed by
my sister Mamosebo J and my brother
Chwaro AJ on 10 March 2023.
9.
As a direct consequence of the dismissal of
the said review
application, the only basis upon which the opposing respondents could
continue to oppose the eviction application
was on the question as to
whether the three main respondents had
locus standi
to bring
this application for eviction. Indeed, this was the only basis upon
which the opposing respondents opposed the eviction
application at
the hearing hereof.
10.
In respect of the opposing respondents, it is only the twenty-third
respondent who filed a substantive affidavit. The other opposing
respondents only filed short confirmatory affidavits confirming
the
twenty-third respondent’s contentions insofar as it referred to
them. The twenty-third respondent only referred to his
own alleged
lease, which on his own version expired many years before the
application for eviction was launched. Therefore, none
of the
opposing respondents could rely on a pre-existing lease. At best the
opposing respondents may have had a month-to-month
lease, which was
terminated by notice. None of the opposing respondents challenged the
alleged termination by notice in an appropriate
way.
11.
As already set out above, the only basis for the opposing respondents
to challenge the present eviction is on the basis of the 3 main
applicants not having
locus standi
to launch this application.
12.
Each of the 3 main applicants claims
locus standi
in their own
right. In the present circumstances, where there is no substantive
defence that survived the dismissal of the review
application and the
failure of each of the opposing respondents to establish a valid and
existing lease agreement other than a
possible month-to-month lease,
it is only necessary for one of them to establish their
locus
standi
for this court to award the eviction sought by the
applicants collectively.
13.
The second applicant is the registered owner of the relevant
property
and claims its authority to launch this application for eviction
stems from that fact. The first applicant has taken cession
of a
long-term lease of the said property and claims authority to evict
unlawful occupiers of the said property by virtue of such
cession and
the right to occupy the said property that flows from such cession.
The third applicant, being the joint venture, claims
authority and
the obligation to launch the present application by virtue of the
fact that it had been awarded a long-term lease
which was registered
against the title deed of the relevant property and the fact that it
has ceded its long-term lease to the
first applicant.
14.
The opposing respondents challenge the authority of the second
applicant to bring this eviction application on the basis that the
Municipal Manager who signed the Special Power of Attorney to
appoint
the applicants’ attorney to act in this application has not
established his authority to act on behalf of the second
applicant in
signing the said power of attorney.
15.
The opposing respondents challenge the authority of both the
first
and third applicants to launch the present application on the basis
that the alleged cession of the long-term lease was prohibited
by
certain regulations that relate to management and control of
municipal capital assets.
16.
Turning now to the challenge to the second applicant’s
authority to bring this application, the manner in which the opposing
respondents have dealt with this question in their answering
affidavit is both instructive and decisive of this issue.
17.
The deponent to the applicants’ founding affidavit, in
paragraph 1.3 thereof, alleges that he is duly authorised to depose
to the founding affidavit on behalf of all the applicants,
by virtue
of resolutions passed and the special powers of attorney furnished by
the 3 entities who are the effective applicants
in this application
for eviction. The said deponent annexes all 3 special powers of
attorney. Including annexure “FA2”
which is the special
power of attorney signed by the Municipal Manager of the second
applicant.
18.
In response to these contentions by the applicants, the opposing
respondents simply note the contents of the relevant paragraphs in
the applicants’ founding affidavit.
19.
In paragraph 2.2 of the founding affidavit the deponent to
that
affidavit sets out the status of the second applicant. In response to
this, at paragraph 5 of the answering affidavit, the
opposing
respondents state: “Save to note the non-existence of a Counsel
(sic) Resolution that gives the Municipal Manager
the authority to
sign the Special Power of Attorney, Annexure ‘FA2’ on
behalf of the Municipality, the rest of the
contents hereof are
noted.”
20.
This is insufficient to give the applicants and in particular
the
second applicant fair warning that its authority to bring the present
application for eviction is being explicitly challenged.
Such
explicit challenge to the authority of the second applicant to launch
the present application appears for the first time in
the Heads of
Argument filed on behalf of the opposing respondents.
21.
The assertion, under oath, that the deponent to the founding
affidavit alleges he is authorised to depose to the founding
affidavit by virtue of resolutions passed read together with the
provisions of the Special Power of Attorney annexed as “FA2”
to the founding affidavit is a positive assertion that
the second
applicant had properly authorised the launch of this eviction
application. This positive assertion is not explicitly
challenged in
the answering affidavit filed on behalf of the opposing respondents.
22.
In Rule
7(1) the Uniform Rules of Court (Rule or Rules depending on the
context) provision is made for a process to challenge this
alleged
authority
[1]
. The opposing
respondents did not avail themselves of this process.
23.
The applicants in paragraph 1.3 of the founding affidavit have
referred to “resolutions passed” in respect of their
authority to launch the eviction application. In the light of
the
reference to such resolutions in the founding affidavit, the opposing
respondents should have invoked the provisions of Rule
35(12), which
would have ensured that the opposing respondents had access to the
alleged resolutions to enable them to determine
if such resolutions
were properly adopted. Again, the opposing respondents did not avail
themselves of this process.
24.
Either of these two procedures provided by the Rules would
have
allowed the applicants and the opposing respondents a fair
opportunity to deal with the underlying factual basis relating
to the
alleged authority of the applicants. In the present circumstances,
the applicants have not had a fair opportunity to deal
with this
challenge to the authority of the second applicant.
25.
In the light of the positive assertion under oath that such
authority
exists and the failure of the opposing respondents to challenge this
explicitly in the answering affidavit filed on their
behalf as well
as their failure to follow the processes allowed by the Rules, the
challenge to the authority of the second respondent
to launch this
application cannot be sustained and must be dismissed.
26.
Turning now
to the assertion by the opposing respondents that the first and third
applicants have no
locus
standi
to launch this eviction application. The basis of the objection to
the
locus
standi
of both the first and third applicants is that by virtue of the
provisions of regulation 45(2)(a)(x)
[2]
which was promulgated under the provisions of section 168 of the
Local Government: Municipal Finance Management Act
[3]
.
The said regulation provides in substance that where the long term
right to control a capital asset belonging to the relevant
local
government is involved that any contract awarding such right should
at a minimum include: “(x) a
clause
disallowing the private sector party or organ of state to whom the
right is granted from ceding or subcontracting the right
to another
person; …”
27.
On the first applicant’s own version, it obtained the
lease by
way of a cession of the third applicant’s long-term lease. The
substance of this complaint was a matter for the
decision of the
Court that entertained the review application. The review application
failed albeit on other grounds.
28.
This question relating to the cession is currently raised in
relation
the
locus standi
of both the first and third applicants. In
the context, even if the opposing respondents are correct, it does
not show that the
third applicant lacks
locus standi
and
cannot claim legal standing to bring the eviction application by
virtue of the long-term lease in its favour. The position
of the
first applicant, insofar as it’s locus standi is concerned, is
somewhat more complex.
29.
There are also, at least two other factors that need to be
considered. Firstly, the opposing respondents never raised this issue
pertinently in the answering affidavit. Again, it was raised
for the
first time in the opposing respondents Heads of Argument. Secondly,
there is in existence a notarial deed of cession registered
against
the title deed of the relevant property. This registered deed of
cession gives the first applicant at least a
prima facie
right
to occupy the relevant property.
30.
Dealing with the first factor, the first applicant has not
had an
opportunity to investigate or deal with the substance of this
complaint. The relevant regulation provides that the party
who is
favoured with the long-term right to manage the relevant capital
asset may not cede or sublet such right. The papers in
this matter
establish that the municipality concerned was involved in the
relevant cession. Whether this makes a difference was
not argued
before me. I am also not in a position to decide this question.
31.
Whether under PAJA or under the principle of ‘legality’
the only way this endorsement of the title deed with the notarial
deed of cession can be set aside is on review. Until the said
endorsement of the cession of the long-term lease on the relevant
title deed is cancelled or set aside, the first applicant has
at
least a
prima facie
right to occupy the property and hence a
prima facie
right to bring this application. The twenty third
respondent failed in the review application.
32.
It is fundamentally unfair to allow the opposing respondents
to raise
this issue without disclosing it in their answering affidavit. It is
apparent from the facts before this court that such
cession might be
unlawful and thus invalid. If this had been pertinently set out in
the opposing respondents’ answering affidavit
the applicants
might have been able to set out facts that would have confirmed their
authority to act on the said cession and the
rights that flowed from
it. However, I don’t have to decide this question, as stated
earlier, it is sufficient to evict the
respondents if any one of the
applicants can establish
locus standi.
I have found that the
second applicant has the requisite
locus standi
and the
eviction will be granted on this basis.
33.
The opposing respondents on behalf of all the respondents sought
a
reasonable time to vacate their respective premises should this court
grant an eviction. The opposing respondents asked this
court to
consider the length of occupation of some of the respondents as a
factor to consider in asking this court to allow an
equitable time
for vacating of the relevant premises on the property concerned. The
opposing respondents submit that a period of
6 months to vacate their
respective premises would be reasonable in the circumstances.
34.
This litigation has already had a long history, the relevant
review
was already dismissed in March 2023. The writing has been on the wall
since that date. In these circumstances, I do not
think it would be
equitable to delay the eviction any further.
35.
Finally,
there remains the question of costs. Mr Venter who appeared for
the applicants urged this court to award a punitive
order of costs on
an attorney and client scale. Mr Venter referred this court to the
case of Boost Sports v SA Breweries
[4]
where the SCA quoted with approval the dictum of Gardiner JP in the
matter of In RE Alluvial Creek, Ltd
[5]
which is to the effect that punitive cost orders are not confined to
proceedings which are vexatious but may also be granted where
one
party has put the other party to unnecessary trouble and expense
which they ought not to bear.
36.
I have no difficulty with the said authorities and accept that
a
court may grant a punitive costs order in those circumstances.
However, the question of costs is primarily within the discretion
of
the court that entertains the matter. A discretion that is to be
exercised having regard to all the relevant circumstances of
that
particular case.
37.
Having regard to the intertwined interests of the applicants
and the
fact that they had employed one firm of attorneys and one advocate to
represent them collectively. I shall simply make
an order of costs in
favour of the applicants.
38.
On the question of whether I should make a punitive costs order
I
have considered the circumstances of this case. The decision I have
reached and the reason for such decision. The fact that the
opposing
respondents are small business people. The proceedings may have been
ill-advised, but they were not vexatious. On balance
in these
circumstances, I do not believe a punitive costs order is
appropriate. In the circumstances, the opposing respondents
will be
ordered to pay the taxed or agreed costs of the applicants on a party
and party basis, jointly and severally, the one paying
the others to
be absolved.
Accordingly,
the following order is made:
1)
That the respondents and all persons or entities
occupying through
them, be evicted from Erf 2[...] K[...] , Northern Cape Province (the
property) and the said respondents are
ordered to immediately vacate
the property.
2)
In the event that the respondents, or any
person occupying through
them, fails or refuses to immediately vacate the property, that the
Sheriff be directed, with the assistance
of the South African Police
Services (if necessary), to give effect to Order 1 above.
3)
The twelfth, twenty first, twenty second and
twenty third respondents
are jointly and severally, the one paying the others to be absolved,
ordered to pay the applicants party
and party costs herein.
Lawrence
Lever
Judge
Northern
Cape
Provincial
Division
Representation:
Applicants:
Adv JA Venter oio
Engelsman Magabane Inc
Opposing
respondents:
Adv J Harmse oio
Taylor Inc
Date of hearing:
2 June 2023
Date of Judgment:
19 January 2024
[1]
Ganes & Another v Telecom Namibia
2004 (3) SA 615
(SCA) at para
[19].
[2]
Published in GNR 878 of 22 August 2008.
[3]
Act 56 of 2003.
[4]
2015 (5) SA 38
at para [27].
[5]
1929 CPD 532
at 535.