About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 42
|
|
Minister of Agriculture, Land Reform and Rural Development v Leboko and Another (1308/2023) [2024] ZANCHC 42 (3 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
No: 1308/2023
Reportable: YES /
NO
Circulate to Judges: YES
/
NO
Circulate to Regional
Magistrates: YES /
NO
Circulate to Magistrates:
YES /
NO
Heard: 26 April 2024
Handed down: 03 May 2024
In the matter between: -
MINISTER OF
AGRICULTURE, LAND REFORM
APPLICANT
AND RURAL DEVELOPMENT
and
RORISANG MCVIGAR
LEBOKO
FIRST RESPONDENT
ALL UNIDENTIFIED
UNLAWFUL OCCUPIERS
SECOND RESPONDENT
OF SHEFFIELD FARM
JUDGMENT
INTRODUCTION:
-
[1]
On 17 July 2023, the Minister of Agriculture, Land Reform and Rural
Development (“the
Minister”) issued an application in
which she requested the following relief, namely that: -
1.1
The respondents be interdicted and restrained from invading state
owned land
known as Sheffield Farm, described as portion 57 (portion
42) Plaas 35 and Portion 62 Plaas, portion of portion 60
(Welgevonden)
35, each measuring 3455.4807, Kuruman RD, John Taolo
Gaetsewe District, Northern Cape Province (“the Farms”);
1.2
The respondents be interdicted from grazing their livestock on the
Farms;
1.3
The respondents be ordered to vacate and/or remove their livestock
from the
Farms within 30 calendar days from service of the order;
1.4
Should the respondents not vacate and/or remove their livestock from
the Farms,
the Sheriff, with the assistance of the South African
Police Services, be authorised to attach, remove and deliver such
livestock
to the nearest animal pound; and
1.5
The respondents to pay the costs of the application in the event of
opposition.
[2]
According to the deed of transfer and the DeedsWeb search reports
attached to founding
affidavit, the correct descriptions of the Farms
are: -
2.1
Portion 57 (a portion of portion 42) of the farm number 35;
2.2
Portion 62 (Welgevonden) (portion of portion 60) of the farm number
35; and
2.3
Portion 57 of the farm number 35.
APPLICABLE LAW: -
[3]
For the Minister to obtain a final interdict, she has to establish:
-
[1]
3.1
a clear right;
3.2
an injury committed or reasonably apprehended; and
3.3
the absence of a satisfactory alternative remedy.
[4]
The first requisite involves proof, on a balance of probabilities,
that as a matter
of substantive law an applicant has a clear or
definite legal right. The second requisite requires an applicant to
establish that
his or her “clear” legal right has been
infringed by the defendant to his or her prejudice, actual or
potential. The
third requisite in effect requires an applicant to
show that the extraordinary remedy of
a
final
(“perpetual”)
interdict
is
the only appropriate form of relief and that there is no other
adequate remedy.
THE MINISTER’S
CASE: -
Clear right: -
[5]
It is common cause between the parties that the National Government
of the Republic
of South Africa is the registered owner of the Farms
that the respondents are grazing their livestock on;
[6]
According to the Department of Agriculture, Land Reform and Rural
Development (“the
Department”): -
6.1
The Farms are earmarked for the identified priority categories who
meet the selection criteria
of the Department’s policy to
allocate land to qualifying applicants at market related rental;
6.2
None of the second respondents have applied to the Department for the
allocation of land;
6.3
None of the respondents are residing on the Farms; and
6.4
The respondents do not have a lawful right to be in occupation of the
Farms, either by express
or tacit consent; or in terms of lease
agreements.
Injury committed or
apprehended: -
[7]
The Minister avers that: -
7.1
The Department has received 218 applications to lease the Farms;
7.2
The respondents refuse to vacate the Farms;
7.3
As a result of the respondents’ unlawful action, the Department
is prohibited from
preparing the land for successful applicants; and
is therefore unable to allocate the property to deserving applicants
in accordance
with its leasing policy; and
7.4
The Department will continue to suffer prejudice if the relief is not
granted.
No alternative remedy:
-
[8]
The Department attempted to resolve the dispute between the parties
by convening a
meeting with some of the respondents, which meeting
did not yield any positive results as the attending respondents
refused to
sign the attendance register. Thereafter the Department,
accompanied by members of the South African Police Service, delivered
notices to the respondents to remove their livestock from the Farms.
The notices, however, came to nought.
THE RESPONDENTS’
CASE: -
[9]
A respondent is required to set out which of the applicant’s
allegations he
admits and which he denies and to set out his version
of the relevant facts. It is normally not sufficient to rely on a
bare or
unsubstantiated denial,
[2]
but
it is permissible to seek to impugn the veracity of the applicant’s
allegations by examining their inherent validity
or probity in all
the proved circumstances and without advancing evidence.
[3]
A
respondent is accordingly not entitled simply to make denials or
challenge the applicant’s evidence without itself proffering
any evidence in answer to the allegations contained in an applicant’s
founding
affidavit.
[4]
[10]
The first respondent did not oppose the application. The
second respondent, being the 64
occupiers of the
Farms who are identified in the answering affidavit, oppose the
application. In their answering and confirmatory
affidavits, the
respondents do not deny that the Minister: -
10.1
Has a clear right to the relief she seeks;
10.2
Would suffer harm if the relief is not granted; and
10.3
Does not have an alternative remedy available to her.
[11]
The respondents assert that: -
11.1
They have been using the Farms for grazing purposes for approximately
3 200 livestock since 2018, with
the acquiescence by the current
lessee and Mr D Wiid, the farm manager; and
11.2 Mr
J Bless and his family have been “on the land for more than 30
years.”
[12]
No confirmatory affidavit of Mr Wiid is attached to the answering
affidavit in support of the
respondents’ allegations.
[13]
The application is opposed solely on the basis that the relief sought
is not just and equitable.
In the alternative, the respondents submit
that the Department should allocate alternative land to them, and
that such an order
would achieve the removal of the respondents from
the Farms, whilst still protecting them from the destitution that an
unconditional
interdict is likely to cause.
[14]
Mr F Sangoni, on behalf of the respondents, requested me to exercise
my discretion in favour
of the respondents, despite the fact that the
Minister satisfies the requirements for a final interdict. In support
of his argument,
he relied on the judgment in the matter of
Chapmans
Peak Hotel (Pty) Ltd v Jab & Annalene Restaurants CC t/a
O'Hagans
[5]
where the Court held: -
“…
The
existence of a general, unqualified discretion to refuse a final
interdict where all the other requisites have been established
has
been questioned. According to LAWSA
such
discretion "is very limited and depends exclusively upon the
question whether the alternative remedy is adequate".
On the
other hand, there is authority both in this Division and in the
Appellate Division acknowledging the existence
of a seemingly
unqualified discretion.
”
[15]
Mr Sangoni argued that a practical order should be granted that would
balance the rights of the
Department and the respondents who are
productive members of society. He suggested that the tender process
for applications for
the allocation of land should be reopened in
view of the fact that the respondents failed to submit applications
as a result of
them either being unaware of the process or because
they are old and illiterate. In the alternative, he proposed that the
Department
should make suitable alternative land available to the
respondents.
[16]
I am nevertheless not persuaded that this Court has a seemingly
unqualified discretion to refuse the
relief in the circumstances of
this matter in view of the judgment of the Supreme Court of Appeal in
the matter of
Hotz
v the University of Cape Town
[6]
where the Court confirmed that: -
“
The law in
regard to the grant of a final interdict is settled. An applicant for
such an order must show a clear right; an injury
actually committed
or reasonably apprehended; and the absence of similar protection by
any other ordinary remedy.
Once the applicant has
established the three requisite elements for the grant of an
interdict the scope, if any, for refusing relief
is limited. There is
no general discretion to refuse relief.
That is a logical corollary of the court holding
that the applicant has suffered an injury or has a reasonable
apprehension of injury
and that there is no similar protection
against that injury by way of another ordinary remedy. In those
circumstances, were the
court to withhold an interdict that would
deny the injured party a remedy for their injury, a result
inconsistent with the constitutionally
protected right of access to
courts for the resolution of disputes and potentially infringe the
rights of security of the person
enjoyed by students, staff and other
persons on the campus. (my emphasis)
[17]
The evidence clearly establishes that the Minister has met the three
requirements for a final
interdict; and that she is thus entitled to
the relief she seeks.
[18]
I am, however, mindful of the respondents’ plight and I
accordingly intend to make an order
which would grant the respondents
fair opportunity to remove their livestock from the Farms.
COSTS:
-
[19]
In the circumstances of the case, fairness also suggests that no cost
order should be made.
WHEREFORE
THE FOLLOWING ORDER IS MADE: -
1.
The respondents are ordered to vacate and/or remove their livestock
from the immovable property known as Sheffield Farm, described as
portion 57 (a portion of portion 42) of the farm number 35, Portion
62 (Welgevonden) (portion of portion 60 and Farm 35 (portion 57),
each measuring 3455.4807, Kuruman, John Taolo Gaetsewe District,
Northern Cape Province within 90 calendar days from service of the
order; and
2.
From the expiration of the 90 calendar day period referred to
in 1
above, the respondents are interdicted and restrained from invading
the immovable property known as Sheffield Farm, described
as portion
57 (a portion of portion 42) of the farm number 35, Portion 62
(Welgevonden) (portion of portion 60) and Farm 35 (portion
57), each
measuring 3455.4807, Kuruman, John Taolo Gaetsewe District, Northern
Cape Province; and
3.
From the expiration of the 90 calendar day period referred to
in 1
above, the respondents are interdicted from grazing their livestock
on the immovable property known as Sheffield Farm, described
as
portion 57 (a portion of portion 42) of the farm number 35, Portion
62 (Welgevonden) (portion of portion 60 and Farm 35 (portion
57),
each measuring 3455.4807, Kuruman, John Taolo Gaetsewe District,
Northern Cape Province.
STANTON, A
On
behalf of the applicant
Adv.
NM Phakama
On
instruction of the Office of the State Attorney
On
behalf of the second respondent:
Adv.
F Sangoni
On
instruction of Ian Levitt Attorneys care of Haarhoffs Attorneys
[1]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[2]
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd 1949 (3) SA 1155 (T) at page 1163 to
1165.
[3]
Kelleher
v Minister of Defence 1983 (1) SA 71 (E) at
page 74.
[4]
G
emeenskapontwikkelingsraad
v Williams and Others (2)
[1977]
4 All SA 317
(W) at page 324.
[5]
[
2001]
4 All SA 415
(C) at paragraph [23].
[6]
[2016]
4 All SA 723
at paragraph [29].