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[2024] ZAKZPHC 44
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Afriforum NPC v Abaqulusi Local Municipality and Others (3128/2021) [2024] ZAKZPHC 44 (16 May 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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 3128/2021
In
the matter between:
AFRIFORUM
NPC
APPLICANT
and
ABAQULUSI
LOCAL MUNICIPALITY
FIRST
RESPONDENT
MUNICIPAL
MANAGER OF THE ABAQULUSI LOCAL
SECOND RESPONDENT MUNICIPALITY
ADMINISTRATOR
OF THE ABAQULUSI LOCAL
THIRD
RESPONDENT
MUNICIPALITY
MUNICIPAL
COUNCIL OF THE ABAQULUSI LOCAL
FOURTH RESPONDENT
MUNICIPALITY
HENDRICK
VUSUMUZI MBATHA
FIFTH RESPONDENT
MEC
FOR THE DEPARTMENT OF COOPERATIVE
SIXTH
RESPONDENT
GOVERNANCE
AND TRADITIONAL AFFAIRS,
KWAZULU-NATAL
MINISTER
OF COOPERATIVE GOVERNANCE
SEVENTH RESPONDENT
AND
TRADITIONAL AFFAIRS, KWAZULU-NATAL
ORDER
The
following order is issued:
1. The
decision of the first and/or second and/or third and/or fourth
respondents to appoint the fifth respondent
as caretaker of forestry
operations on the land known as: Remainder of Subdivision 13 of the
Farm Grootgewacht No.76 and Leasehold
No.7 over the Remainder of
Vryheid Townlands No.6711 at a Council meeting on 20 November 2020
and any possible agreement/s concluded
in this regard are reviewed
and set aside.
2.
The fifth respondent is divested of all profits derived from the
decision and possible agreement/s mentioned
in the prayer 1 above..
3.
The first, second, third and fourth respondents are ordered to
conduct a survey on the affected land and to
file a report and a
comprehensive statement indicating the value of all wood harvested by
the fifth respondent (supported by expert
report/s, if required)
within 30 calendar days from the date of this order. The said
report/s and statement/s shall indicate at
least the size of each
areas/blocks harvested, the types/species of tree concerned,
approximate age of the trees, estimated or
actual weight harvested
and commercial value per ton. The said report/s and statement/s shall
be filed with the honourable court
and served on the applicant
through its attorneys and on the fifth respondent at his address,
which is [...] S[...] Street,
Vryheid.
4.
The applicant may enter the relevant land and may conduct a survey of
its own and compile a report/s and/or
statement/s of its own within
30 calendar days of receipt of the report/s and statement/s
referenced in prayer 3 above, in the
event that the accuracy of the
reports is disputed. Should such documents be compiled by the
applicant, they shall also be
filed with the court and served on the
first, second, third and fourth respondents through their attorneys
and on the fifth respondent
at his address, which is [...]
S[...] Street, Vryheid.
5.
If the fifth respondent wishes to deduct any actual expenses/loss
incurred during the harvesting or handling
of the wood concerned, he
shall file a statement/s detailing all such expenses/losses, with
supporting vouchers and documents (and
possible expert evidence)
indicating all alleged expenditure/losses within 30 calendar days of
service of this order on him at
his address being [...] S[...]
Street, Vryheid. Such documents shall be filed with the court and
applicant, and first to fourth
respondents through their respective
attorneys.
6.
All possible expert witnesses engaged shall file joint minutes within
15 calendar days from the date of filing
of the last report in terms
of this order, or the date on which such report would be due.
7.
On the day for filing of joint minutes all parties will indicate in
writing if they dispute the expenses/losses
that the fifth respondent
might claim to have incurred/suffered and indicate which amount/s or
items are disputed.
8.
In the event that the amount which the fifth respondent is liable to
pay to the first respondent is agreed
on between the applicant and
the first to fifth respondents, such agreed amount may be made an
order of court for repayment. Should
such amount remain disputed, any
party may set the matter down for evidence for determination of the
amount due. The office of
the Judge President may be approached for a
preferential date in this regard.
9.
After the amount payable by the fifth respondent to the first
respondent is determined, the first, second,
third and fourth
respondents are ordered to pursue all valid forms of taxation,
including possible sequestration, to obtain payment
of any amount due
without delay. In this regard the first, second, third and fourth
respondents shall report to the court and the
applicant in writing
every 60 calendar days from date of determination of the final amount
on progress in retrieving payment.
10.
The first, second, third and fourth respondents shall report to the
court and the applicant every 30 calendar days on the status
of the
final award of the right to harvest the relevant plantation land
concerned, until it is reported that a final appointment
has been
made;
11.
The first respondent is ordered to pay the costs of the application.
JUDGMENT
Delivered: 16 May 2024
SABELA
AJ
Introduction
[1]
This is a review application where in the applicant seeks the
following relief:
a. That
the decision of the first and/or second and/or third and/or fourth
respondents to appoint the fifth respondent
as caretaker of forestry
operations on the land known as: Remainder of Sub-division 13 of the
Farm Grootgewacht No.76 and Leasehold
No.7 over the Remainder of
Vryheid Townlands No.6711 at a Council meeting on 20 November 2020
and any possible agreement/s concluded
in this regard be reviewed and
set aside.
b. The
first second and third and fourth respondents are ordered to
institute action in a competent court against
the fifth respondent
for the recovery of all loses and or damages resulting from the
impugned resolution within ten calendar
days from the date of
this order and pursue such proceedings to finality without delay;
i.
The first, second, third and fourth respondents
are ordered to report
to this honourable court and the applicant monthly on or before the
last day of each consecutive month on
the status of the litigation in
this regard and the process therein.
c. The
first, second, third and fourth respondents are ordered to advertise
the relevant tender for a long-term
caretaker/lessee in respect of
the plantation within ten calendar days from date of this order
and pursue the procurement
process in this regard without delay;
i.
The first, second, third and fourth respondents
are ordered to report
to this honourable court and the applicant monthly on or before the
last day of each consecutive month on
the status of the tender
process in this regard and progress therein.
d. The
first, second, third fourth and fifth respondents are ordered to pay
the costs of this application on an
attorney and client scale,
jointly and severally the one paying the other to be absolved. Costs
is only sought against the other
respondents in the event of
opposition.
e.
Further and/or alternative relief.
The application is
opposed by the first to the fourth respondents. The review is in
terms principles of legality despite the applicant
contending that it
is also in terms of Promotion of Access to Justice Act 3 of 2000
(PAJA). S 1 of PAJA specifically excludes decisions
of Municipalities
from the application of PAJA.
The
Parties
[2]
The applicant Afriforum NPC, a is a non-profit organisation
registered in accordance
with the relevant laws of this country and
brings this application in terms of s 38(d) of the Constitution, 1996
(the Constitution)
which allows for a party to launch an application
acting in the public. The first respondent is a local municipality as
contemplated
in s 2 of the Local Government: Municipal Systems Act 32
of 2000 (the Systems Act), the second respondent is a municipal
manager
of the first respondent, the third respondent is the
administrator of the first respondent, the fourth respondent is the
municipal
council of the first respondent appointed in terms of the
Systems Act, the fifth respondent is an adult male who was appointed
by the second respondent , the sixth respondent is the member of
executive council responsible for Co-operative Government and
Traditional Affairs in the province of KwaZulu-Natal and the seventh
respondent is a cabinet minister responsible for Co-operative
Government and Traditional Affairs. For purposes of this judgment the
first to fourth respondents will jointly be referred to as
‘the
respondents’.
The
facts
[3]
As part of its activities and functions, the
first respondent operates plantation land of over five
hundred
hectares. Planted in the plantation are pine, eucalyptus and
black wattle trees. A 30-year lease agreement was concluded
with
Woodbasket (Pty) Ltd which ended on 30 October 2021. The expiry of
the lease agreement could not have invoked an emergency
since it was
always known that it would expire after 30 years. A technical
report was received by the first respondent listing
deficiencies on
the leased premises. There was also a need to address the lack of
maintenance and overgrown nature of the Grootgewacht
dam.
[4]
On 20 November 2020, the fourth respondent took a resolution that:
“
That
the lease Contract of Wood Basket be terminated by the end of
November 2020, as per the signed contract”; and
“
That
Council authorise or mandates the Municipal Manager with powers
vested to him to appoint a caretaker or manager to look after
all the
management of the farm which includes plantation, harvesting, etc in
the farm, for a period of 24 months, while waiting
for Supply Chain
Management processes to unfold and commence.”
The
resolution was aimed as an interim measure, pending the tender
awarding process.
[5]
On 4 December 2020, arising from the authority conferred on the
second respondent,
he resolved to appoint the fifth respondent as the
caretaker and issued him with an appointment letter. The letter
specified that
a meeting was to be held with the fifth respondent
within 14 days to conclude the terms and conditions of his
appointment, following
which a caretaker agreement would be concluded
between him and the first respondent.
[6]
the fifth respondent was
appointed from 1 December 2020 to 30 November 2022 which appointment
was made subsequently the meeting. A recommendation was made for an
agreement of between eight to 15 years because of the
forestry
cycle. Upon enquiry, the applicant was informed that the appointment
corresponded with the first respondent’s transformation
objectives. However, the applicant held a view that the appointment
was illogical in a forestry setting because of the much longer
production cycle of trees. Additionally, the applicant contends
that there was no caretaker agreement in existence since
none was
ever produced. It avers that the fifth respondent is not the
caretaker since he is also allowed to harvest from the plantation
land. According to the applicant, the first and second respondents
actively participated in seeking to benefit of the fifth respondent
and/or his grouping.
[7]
While the property is owned by
the first respondent, on 8 July 2021, a letter was forwarded
to the
first respondent confirming that a lands claim was submitted on
behalf of the fifth respondent’s group being the Grootgewacht
Group. According to the applicant, the land claim was
suspicious as it was submitted after the claims were re-opened and
only for a short period. The re-opening was subsequently declared
inconsistent with the Constitution and the new land claims was
interdicted from being processed.
[1]
[8]
A meeting was held between the applicant and the first and second
respondents. The
applicant was advised that the estimated value of
the wood from the plantation of R2 million was already harvested by
the fifth
respondent and that he could potentially harvest wood
valued at R25 million. Additionally, that an agreement could be
finalised
within two to three days with the delay being due to
compliance with regulation 36 of the Municipal Supply Chain
Regulations of
30 May 2005, ‘the regulations’.
[9]
The applicant suggested that harvesting stop pending the conclusion
of a contract
and that the harvesting which was already carried out
be measured and that such contract be concluded within three weeks.
At a
subsequent meeting, the applicant was advised that the fifth
respondent continued harvesting. It was indicated that the tender
process would be finalised by October 2021. Further, that the fifth
respondent harvesting of the trees was necessary to preserve
the
nature resource.
[10]
The applicant contends that a decision of this magnitude could only
be taken in accordance with
s 14(2) of the Local Government:
Municipal Finance Management Act ‘the MFMA’ which
requires such decisions to be taken
in a meeting open to the public
after it has resolved that the asset is not required to provide
minimum service and consideration
of a fair market value is given.
The applicant contends further that there was no compliance with this
provision since the impugned
resolution was taken in a closed council
meeting and it was not decided whether the asset implicated was
necessary for basic service
delivery and the asset value was not
indicated. The first respondent’s new manager confirmed in his
answering affidavit that
the new lease could only occur in terms of
the necessary supply chain management policies and not by council
resolution.
[11]
According to the applicant, the two-year appointment of the fifth
respondent was illogical and
was irrational due to the forestry
cycle. In addition to this, it contends that the land should have
been leased to meet the financial
needs of the community but was
‘given’ to an individual which was a further act of
irrationality. On 25 June 2020,
the first respondent resolved to
terminate the lease of the former lessee in favour of the community
with a land claim. As at 17
November 2020, there had been an internal
memorandum with three options regarding the land which were to: renew
the old lease,
sell the property or to conclude a new lease. The
memorandum also provided for public participation in the process and
a need to
ensure compliance with supply chain policies including the
valuation of the property. The applicant contends that there was no
compliance with the memorandum.
[12]
The applicant contends that the first and second respondents
evidenced bias in favour of the
fifth respondent and a consideration
of irrelevant considerations as they went as far as seeking the land
claim information and
confirmation on behalf of the fifth respondent.
There was no basis to deviate from the provisions of the supply chain
management
regulations.
[13]
A written agreement was annexed to the answering affidavit which only
mentions the two-year period
of the appointment . It sets out the
rental of R183 per hectare on 625.7 hectares totalling to R114 503.10
and records that
rental should be paid monthly, in advance, in the
amount of R5000. The yearly rental would equal R60 000. The
applicant estimates
wood to the value of R9 million having been
harvested as at the signing of its replying affidavit. It further
records that
the plantation is insured for R18 million which is
an under value. It was also alluded that the written document
recorded that
20 per cent of the profits less operating
expenses should be paid to the municipality. The result was that the
fifth respondent
could calculate profit and then deduct his expenses
from the said calculation.
[14]
After setting out the importance of the record in the review
proceedings as alluded in
Helen
Suzman Foundation v Judicial Service Commission
,
[2]
the applicant stipulated what was missing from the record. This
included the agreement between the first and fifth respondents
which
was only produced as an annexure to the answering affidavit; the
first respondent’s supply chain documents and there
was nothing
was provided to justify why emergency measures had to be taken.
[15]
Regarding the production of the agreement regulating the
relationship between the first
and fifth respondents, the applicant
avers that it raises possible disputes of fact. It however, contended
that this is related
to the fact that a justification cannot be
raised outside the record. The applicant relied on
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
[3]
to
support the submission that there are exceptions to the
Plascon-Evans
rule
[4]
and argued that in some instances, the court can reject the
respondent’s version. It was submitted that in this case, the
court should adopt the approach set out in
Soffiantini
v Mould
.
[5]
[16]
The applicant contended that the only finding which the court could
arrive at was that the agreement
was a fabrication after the fact in
an attempt to justify the impugned award or to reconstruct the reason
which was denounced in
National
Energy Regulator of South Africa and Another v PG Group (Pty) Limited
and Others
.
[6]
It was submitted that, even if the court did not find that the
agreement was a fabrication, it in any event fell to be set aside
on
other grounds which included the unlawfulness of the resolution and
the subsequent agreement with the fifth
[17]
As mentioned earlier, the applicant relied on PAJA as the basis
of review. It set out its
grounds of review relying on the provisions
of s 6(2) as being:
1. That
the decision was not authorised by the empowering provisions;
2. The
decision maker was biased or could reasonably be suspected to be;
3. The
action was procedurally unfair. Other possible caretakers were not
considered;
4. The
action was taken for reasons not authorised by the empowering
provision whilst taking into account irrelevant
considerations
(possible land claims) and the decision was taken for an ulterior
purpose or motive and in bad faith and was arbitrary
or capricious;
5. The
action contravenes the law and the decision was irrational in terms
of s 6 (2)
(f)
of PAJA;
6. The
decision is unreasonable that no reasonable person could have
exercised power in the manner it was exercised;
7. The
action is unconstitutional and unlawful in terms of s 6 (2)
(i)
of
PAJA.
[18]
Pertaining to bias , the applicant relied on
Turnbull-Jackson
v Hibiscus Court Municipality and Others
[7]
where the following was stated:
‘
[30]
The Constitution guarantees everyone the right to administrative
action that is procedurally fair. Section 6(2)
(a)
(iii)
of PAJA, which is legislation enacted in terms of section 33(3) of
the Constitution to give effect to,
inter
alia
, the right contained in section
33(1) of the Constitution, makes administrative action taken by
an administrator who was 'biased
or reasonably suspected of bias'
susceptible to review. Whether an administrator was biased is a
question of fact. On the other
hand, a reasonable suspicion of bias
is tested against the perception of a reasonable, objective and
informed person.
To substantiate, borrowing from
S
v Roberts
:
(a)
There
must be a suspicion that the administrator might — not would —
be biased.
(b)
The
suspicion must be that of a reasonable person in the position of the
person affected.
(c)
The
suspicion must be based on reasonable grounds.
(d)
The
suspicion must be one which the reasonable person would — not
might — have.’ (Footnotes omitted)
[19]
Regarding unlawfulness, the applicant relies on s 14 of the MFMA and
submits that the first
respondent contravened its own supply
chain policy. In addition to this, that the relevant respondents were
not able to justify
invoking the provisions of regulation 36 allowing
for the accounting officer to dispose of official procurement
processes only
in case of emergency. The applicant submitted that
there was no emergency and that in any event, it was not the
accounting officer
that took the impugned decision but the municipal
council.
[20]
The applicant submitted that in terms of relief, the court has a wide
discretion in terms of
s 172 of the Constitution and s 8(2) of
PAJA which provides for an order that is just and equitable,
including orders directing
the parties to refrain from doing any act
which the court considers necessary to do justice between the
parties. A further submission
was that the fifth respondent
should not be allowed to benefit from this patently unlawful and
invalid decision to the detriment
of the first respondent and its
residents. They argued that this was effectively giving away
municipal council and that the first
respondent should be compelled
to institute legal action to recover the value which would be in the
interest of the public. To
this regard, the applicant relied on
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
.
[8]
[21]
In terms of costs, it was submitted that the
Bio-watch
principle
[9]
should
be applicable in that the applicant should not be discouraged from
enforcing its right should it be unsuccessful.
[22]
Mr Broster
for the respondents submitted that there was
nothing offensive by the resolution of November 2020. This was
because the first
respondent is authorised to appoint a
caretaker whilst the tender is underway. This is in terms of s 60 of
the Local Government
Municipal Finance Act which identifies the
municipal manager as the accounting officer. This section deals
with the powers
and functions of the municipal manager which record
him as the
accounting officer who must exercise
the functions and powers assigned to an accounting officer in terms
of this Act; and provide
guidance and advice on compliance with this
Act to political structures, office bearers and the municipality as a
whole.
[23]
The court is called upon to determine whether the first to the fourth
respondents acted outside
s 14 of the MFMA in appointing the fifth
respondent as caretaker of forestry operations at a council meeting
on 20 November 2020.
[24]
In terms of s 14 (2) of the MFMA, a municipality may transfer
ownership or other dispose
of a capital asset other than one
contemplated in ss 1 , but only after the municipal council, in a
meeting open to the public:
1. has
decided on reasonable grounds that the asset is not needed to provide
the minimum level of basic municipal
services; and
2. has
considered the fair market value of the asset and the economic and
community value to be received in exchange
for the asset.
[25]
In dealing with reviews based on the principles of legality, the
court in
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[10]
held that this was a rule of law and that the principle implied that
a body exercising public power, which was the municipality,
had to
act within powers lawfully conferred onto it . Further, the principle
required the holder of public power to act in good
faith and not
misconstrue his powers.
[11]
In
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and
Others
,
[12]
it was held that the exercise of public power should not be arbitrary
or irrational. Decisions must be rationally related to
the
purpose for which the power is given otherwise they are arbitrary and
inconsistent with the principle of legality. To pass
constitutional
scrutiny, the exercise of public power by the executives and other
functionaries must comply with this requirement.
[26]
The principle of legality gives courts control over action
which is not administrative
as defined in PAJA, as in this case, but
involves the exercise of public power. The court then must consider
the lawfulness of
the exercise of public power.
[13]
As mentioned above ,
Mr
Broster
submitted
that the impugned resolution was lawful as it was taken in accordance
with s 60 of the MFMA.
[27]
While it is not in dispute that the second respondent, as the
municipal manager, is the accounting
officer of the first respondent
and has certain responsibilities, the issue in this matter related
specifically to the management
of transfer of or disposal of an
assert belonging to the first respondent. As stated above, the
relevant section governing
such an issue is s 14 of the MFMA. As was
submitted by the applicant, the decision of this nature and magnitude
may only be taken
in a meeting open to the public. There is no
evidence that such a meeting was convened , this appears to be
common cause.
From the facts, it is patent that the decision was
taken at a meeting of the fourth respondent. Therefore, there was a
procedural
irregularity in the passing of the resolution.
[28]
As stated in
Albutt
v Centre for the Study of Violence and Reconciliation and Others
,
[14]
it is irrational for public power to be exercised without hearing the
affected people. The fact that the impugned resolution was
taken
without ensuring compliance with the requirements of consultation
with members of the public resulted in the exercise of
the public
power to be procedurally unfair.
[29]
For similar reasons, the impugned decision was unlawful since is was
taken in contravention of
the provisions of s 14(2) of the MFMA. The
argument advanced by
Mr
Broster
to suggest the lawfulness of the decision is misguided. While the
second respondent is the accounting officer, his exercise of
public
power is still subject to and regulated by the MFMA and other
legislative prescript. Lawfulness requires that the impugned
decision
must be duly authorised by law and that any statutory requirements
attached to the exercise of such power must be complied
with.
[15]
[30]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
,
[16]
the court held that legislature and executive are constrained by the
principle that they may exercise no power and perform no function
beyond that conferred to them by law. Therefore, any action performed
without necessary authority is ultra vires or illegal. The
action by
the fourth respondent in passing the resolution was without necessary
authority and therefore ultra vires. It should
be set aside.
[31]
A further requirement is that of the rationality of the impugned
decision. This requires that
there must be a rational connection
between the exercise of public power and the purpose for which the
power was given.
[17]
It is
irrational for the respondents to appoint a caretaker to oversee the
forestry for a period of 24 months when it is clear
that this would
affect the harvesting. There was also no indication as to the basis
upon which the fifth respondent was selected
as the appropriate
person to occupy the position of a caretaker. There was also no
advancement as to his suitability to the
position and how his
appointment would be in the interest of the public and the mere fact
that he belonged to a group which had
launched a land claim, was
insufficient to justify his appointment.
[32]
On the issue of dispute of fact raised by the respondents, while I
note the application of the
Plascon-Evans
rule
[18]
in such instances, I agree with the applicant that the conduct of the
respondents is questionable. As was stated in
Helen
Suzman Foundation v Judicial Service Commission
,
[19]
it is imperative that documents relied upon to prove the
reasonableness of a decision in review proceedings forms part of the
record provided to afford the applicant opportunity to adequately
address the issues in a supplementary affidavit. It is questionable
when such documents are produced later without any explanation to the
reason they were not furnished earlier.
[33]
In my view, whether an agreement exists regulating the relationship
between the first and the
fifth respondent is produced, having found
that the decision to pass the impugned resolution was unlawful and
irrational has the
effect of nullifying any action subsequently taken
and arising from it. Accordingly, once the resolution falls away, so
does the
agreement between the first and fifth respondents.
[34]
The applicant has satisfied the court that the resolution taken was
not lawful, reasonable and
procedurally fair. Therefore, it follows
that such decision is subject to be reviewed in terms of s 6 (2) and
(3) of the
PAJA..
Order
[35]
In the circumstances, I make the following order:
1. The
decision of the first and/or second and/or third and/or fourth
respondents to appoint the fifth respondent
as caretaker of forestry
operations on the land known as: Remainder of Subdivision 13 of the
Farm Grootgewacht No.76 and Leasehold
No.7 over the Remainder of
Vryheid Townlands No.6711 at a Council meeting on 20 November 2020
and any possible agreement/s concluded
in this regard are reviewed
and set aside.
2. The
fifth respondent is divested of all profits derived from the decision
and possible agreement/s mentioned
in the prayer 1 above..
3. The
first, second, third and fourth respondents are ordered to conduct a
survey on the affected land and to
file a report and a comprehensive
statement indicating the value of all wood harvested by the fifth
respondent (supported by expert
report/s, if required) within 30
calendar days from the date of this order. The said report/s and
statement/s shall indicate at
least the size of each areas/blocks
harvested, the types/species of tree concerned, approximate age of
the trees, estimated or
actual weight harvested and commercial value
per ton. The said report/s and statement/s shall be filed with the
honourable court
and served on the applicant through its attorneys
and on the fifth respondent at his address, which is [...]
S[...] Street,
Vryheid.
4. The
applicant may enter the relevant land and may conduct a survey of its
own and compile a report/s and/or
statement/s of its own within 30
calendar days of receipt of the report/s and statement/s referenced
in prayer 3 above, in the
event that the accuracy of the reports is
disputed. Should such documents be compiled by the applicant, they
shall also be
filed with the court and served on the first, second,
third and fourth respondents through their attorneys and on the fifth
respondent
at his address, which is [...] S[...] Street,
Vryheid.
5. If
the fifth respondent wishes to deduct any actual expenses/loss
incurred during the harvesting or handling
of the wood concerned, he
shall file a statement/s detailing all such expenses/losses, with
supporting vouchers and documents (and
possible expert evidence)
indicating all alleged expenditure/losses within 30 calendar days of
service of this order on him at
his address being [...] S[...]
Street, Vryheid. Such documents shall be filed with the court and
applicant, and first to fourth
respondents through their respective
attorneys.
6. All
possible expert witnesses engaged shall file joint minutes within 15
calendar days from the date of filing
of the last report in terms of
this order, or the date on which such report would be due.
7. On
the day for filing of joint minutes all parties will indicate in
writing if they dispute the expenses/losses
that the fifth respondent
might claim to have incurred/suffered and indicate which amount/s or
items are disputed.
8. In
the event that the amount which the fifth respondent is liable to pay
to the first respondent is agreed
on between the applicant and the
first to fifth respondents, such agreed amount may be made an order
of court for repayment. Should
such amount remain disputed, any party
may set the matter down for evidence for determination of the amount
due. The office of
the Judge President may be approached for a
preferential date in this regard.
9.
After the amount payable by the fifth respondent to the first
respondent is determined, the first, second,
third and fourth
respondents are ordered to pursue all valid forms of taxation,
including possible sequestration, to obtain payment
of any amount due
without delay. In this regard the first, second, third and fourth
respondents shall report to the court and the
applicant in writing
every 60 calendar days from date of determination of the final amount
on progress in retrieving payment.
10. The first, second,
third and fourth respondents shall report to the court and the
applicant every 30 calendar days on the status
of the final award of
the right to harvest the relevant plantation land concerned, until it
is reported that a final appointment
has been made;
11. The first respondent
is ordered to pay the costs of the application.
SABELA
AJ
CASE
INFORMATION
DATE
OF HEARING
: 07
November 2022
DATE
DELIVERED
: 16 May
2024
APPEARANCES
COUNSEL FOR
APLICANT:
JGC HAMMAN
INSTRUCTED BY:
HUNTER SPIES
INCORPORATED,
PRETORIA
COUNSEL FOR FIRST
RESPONDENT :
JP BROSTER
INSTRUCTED BY:
GARLICKE &
BOUSFIELD,
UMHLANGA
[1]
Speaker
of the National Assembly and Another v Land Access Movement of South
Africa and Others
[2019] ZACC 10; 2019 (5) BCLR 619 (CC); 2019 (6) SA 568 (CC).
[2]
Helen
Suzman Foundation v Judicial Service Commission
[2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC).
[3]
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3)
SA 620
at 635.
[4]
Ibid.
[5]
Soffiantini
v Mould
1956
(4) SA 150
(C) at 154.
[6]
National
Energy Regulator of South Africa and Another v PG Group (Pty)
Limited and Others
[2019] ZACC 28
;
2019 (10) BCLR 1185
(CC);
2020 (1) SA 450
(CC) para
39.
[7]
Turnbull-Jackson
v Hibiscus Court Municipality and Others
[2014] ZACC 24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR 1310
(CC) para
30.
[8]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
[2014] ZACC 12
;
2014 (6) BCLR 641
(CC);
2014 (4) SA 179
(CC) paras
24-28.
[9]
Biowatch
Trust v Registrar Genetic Resources and Others
[2009]
ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC).
[10]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
;
1998 (12) BCLR 1458
at 56-58.
[11]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
1999]
ZACC 11
;
2000 (1) SA 1
;
1999 (10) BCLR 1059
para 148.
[12]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241.
[13]
C Hoexter and G Penfold
Administrative
Law in South Africa
3 ed (2021) at 157.
[14]
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[2010]
ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR
391 (CC).
[15]
Hoexter above fn 13 at 355.
[16]
Fedsure
Life Assurance Ltd and Others
above
fn 10 para 58.
[17]
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
above fn 12 paras 85 and 90.
[18]
Plascon-Evans
Paints (TVL) Ltd
above
fn 3.
[19]
Helen
Suzman Foundation
above fn 2.