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[2024] ZAECMHC 44
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Nonica Estates CC v All Illegal Occupiers, Invaders and any Person Holding Residence under such Illegal Occupiers and Invaders of the Immovable Property and Others (3167/2018) [2024] ZAECMHC 44 (28 May 2024)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MTHATHA]
Case no. 3167/2018
In the matter between:
NONICA ESTATES CC
Registration
No.[…]
Applicant
and
ALL ILLEGAL OCCUPIERS,
INVADERS
AND ANY PERSON HOLDING
RESIDENCE
UNDER SUCH
ILLEGALOCCUPIERS
AND INVADERS OF THE
IMMOVABLE
PROPERTY KNOWN AS
ERVENS
(sic)
[…] AND […] GCUWA
1
st
Respondent
MNQUMA
MUNICIPALITY
2
nd
Respondent
MINISTER
OF HUMAN SETTLEMENT
3
rd
Respondent
DEPERTMENT OF RURAL
DEVELOPMENT
AND AGRARIAN REFORM
JUDGMENT
HINANA AJ:
Introduction
[1] This is an
application for the eviction of the first respondent from the
property known as Erven […] Gcuwa and Erven
[…] Gcuwa.
[2] The
a
pplicant
is a Closed Corporation duly registered in terms of the Company Laws
of the Republic of South Africa. Attached to the founding
affidavit
are two different Permissions to Occupy (the
PTOs)
issued in favour of Siyolo Solombela erven […] Gcuwa and
Tobile Ndwandwa in respect of erven[…]. The two erfs
are
situated at Zazulwana Butterworth. The PTOs was
granted on 01
October 2010 in respect of Siyolo Solombela and on 17 June 2004 in
respect of Tobile Ndwandwa.
[3] The pieces of land
referred to above were allocated for the development of a fuel
station.
[4]
The first respondents are cited as illegal land invaders and
occupiers
[1]
because the first
respondent’s full and further particulars are unknown to the
applicant. The first respondents are not local
to the Zazulwana
Community and arrived at the end of 2017 claiming that the land had
been sold to them.
[5] In paragraph 6 of the
founding affidavit, applicant states:
“
Save
for about 3 of the first respondents, the first respondents have not
taken up permanent residence on the immovable property;
however, they
have began building structures on the immovable known erfs.
”
[6] In order to fully
follow the sequence of events, I deem it fit to refer to court orders
previously granted against the first
respondents in the manner set
out below:
6.1. On 17 August 2018,
this
C
ourt notice granted the applicant
a
n
otice in terms of
s
ection
4 (2) of the Prevention of Illegal Eviction from Unlawful Occupation
of the Land Act No. 19 of 1998.
6.2 The respondents were
notified in terms of
se
ction 4 (1) of
Act 19 of 1998 that this matter will be heard on 04 September 2018.
6.3. This
C
ourt
order was served to the respondents who were represented by
Nontandazelo Kwababa.
6.4 On 20 July 2020, this
C
ourt granted both part A and part B of
the Notice of Motion.
6.5 The order referred to
above in paragraph 6.4 was rescinded on 28 July 2020. The first
respondent was granted leave to oppose
the main application.
The opposition
[
7
]
The only person who deposed to the answering affidavit is Lebohang
Dukada. He raised two points
in limine
i.e. condonation and
locus standi
of the
deponent to the
founding affidavit.
[8]
In respect of condonation, Lebohang Dukada alleges that the answering
was filed out of time and the reason for the late filing
of the
answering affidavit is that:
“
he
was unavailable and unreachable to his legal representative to assist
in the compiling of this affidavit due to my pressures
of my
employment.”
[9]
In this Court, there was no argument submitted by either side on
condonation.
[10]
The replying affidavit was deposed to by Pinki Solombela who is cited
as a major female business woman of Zazulwana Administrative
Area, in
the District of Butterworth and is a member of the applicant. She
states that:
“
I
depose to this replying affidavit as a member of the applicant in my
capacity as the Estate Representative of the late Siyolo
Solombela
.”
[11]
When answering to the two points
in limine
, Pinky Solombela
states that:
“
(a)
there are no plausible grounds pleaded by the respondents for the
late filing of the answering affidavit and as such, the affidavit
should be rejected.”
[12]
In so far the authorization is concerned, Pinki Solombela alleges
that:
“
The
launching of the application is itself authorised over and above the
power to depose granted to Ms Zanele George to the founding
affidavit
in support of this application. I refer this Honourable court to
annexures “S - I” hereto.
”
[13]
Annexure S-1
[2]
is a document
titled:
“
SUB-DELEGATION
OF AUTHORITY
”
which state
I,
the undersigned
Monica
B Solombela 5308…………088
employed
as a Director at
Nonica
Estates CC (Reg No.[…])
duly
empowered to, hereby confirmed that our attorney or agent referred to
in this certificate
Zanele George
is
authorised to depose to all affidavits on behalf of Nonica Estates CC
(Registration No.[…])
in
so far as they relate to the application for an interdict and
eviction in the following matter
Case
number 3167/18 in Mthatha High Court.
”
Analysis
[14]
The respondent of the founding affidavit is an attorney representing
the applicant. The sub delegation attached to the replying
affidavit
states that:
“…
Zanele
George is authorised to depose to all affidavits on behalf of Nonica
Estates CC (Registration No.[…]) in so far as
they relate to
the application for an interdict and evidence in the following matter
Case No. 3162/18 in Mthatha High Court.”
[15]
The first respondents have denied that the deponent of the founding
affidavit is authorised.
[16]
I do not understand the first respondents to be denying that Zanele
George is an attorney representing the applicant. The denial
relates
to the authority of Zanele George in instituting and prosecuting
these proceedings
The
law
[17]
In
Ganes
and Another v Telecom Namibia Ltd
[3]
the Supreme Court of Appeal had this to say:
“
The
deponent to an affidavit in motion proceedings need not be authorised
by the party concerned to depose to the affidavit. It
is the
institution of the proceedings and the prosecution thereof which must
be authorised.”
[4]
[18]
Rule 7 (1)
[5]
provides that:
‘
Subject
to the provisions of sub rules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfied the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.
’
[19]
In
Eskom
v Soweto City Council
[6]
Flemming DJP expressed himself as follows:
“
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level. If the attorney is
authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant. There is
no need
that any other person, whether he be a witness or someone who becomes
involved especially in the context of authority,
should additionally
be authorised. It is therefore sufficient to know whether or not the
attorney acts with authority. As to when
and how the attorney's
authority should be proved, the Rule-maker made a policy decision.
Perhaps because the risk is minimal that
an attorney will act for a
person without authority to do so, proof is dispensed with except
only if the other party challenges
the authority.”
[20]
In cases where an artificial person or co-operatives were involved
and where there is an objection to the authority of the
person
bringing the proceedings, Watermeyer J in
Mall
(Cape) (Pty) Ltd v Merino Ko-operasie Bpk
[7]
eloquently expressed himself as follows:
“
There
is a considerable amount of authority for the proposition that, where
a company commences proceedings by way of petition,
it must appear
that the person who makes the petition on behalf of the company is
duly authorised by the company to do so (see
for example
Lurie
Brothers Ltd v Arcache
1927
NPD 139
, and the other cases mentioned in Herbstein & Van Winsen,
Civil Practice of the Superior Court in South Africa at pp 37-38).
This seems to me to be a salutary rule and one which should also
apply to notice of motion proceedings where the applicant is an
artificial person. In such cases some evidence should be placed
before the Court to show that the applicant has duly resolved to
institute proceedings and that the proceedings are instituted at its
instance. Unlike the case of an individual, the mere signature
of the
notice of motion by an attorney and the fact that the proceedings
purported to be brought in the name of the applicant are
in my view
insufficient. The best evidence that the proceedings have been
properly authorised would be provided by an affidavit
made by an
official of the company annexing a copy of the resolution but I do
not consider that that form of proof is necessary
in every case. Each
case must be considered on its own merits and the Court must decide
whether enough has been placed before it
to warrant the conclusion
that it is the applicant which is litigating and not some
unauthorised person on its behalf.”
[8]
[21]
In my view, the deponent of the founding affidavit could only bring
these proceedings after having been duly authorised to
institute and
to prosecute the application. This seems not to be the case. Even the
sub delegation attached to the replying affidavit
deposed to by Pinki
Solombela does not refer to the institution and prosecution of these
proceedings.
[22]
In this matter, the institution and prosecution of these proceedings
has not been shown. As indicated earlier, the founding
affidavit was
deposed to by Zanele George with an authority to institute and
prosecute these proceedings and the replying affidavit
was deposed to
by Pinki Solombela. It is not clear why the replying affidavit was
deposed to by Pinki Solombela who did not depose
to the founding
affidavit.
[23]
It has never been explained why the founding affidavit was deposed to
by Zanele George without having annexed the authority
envisaged in
rule 7 (1) and the replying affidavit is deposed to by Pinki
Solombela.
[24]
In his heads of argument, counsel for the first respondent submitted
that:
“
The
concept of locus standi is used, in this context of this matter, in
the sense of capacity to bring the proceedings which, is
not
necessarily the same sense as authority to act.
[9]
”
I
note the authority referred therein but it is distinguishable from
the facts of this case.
Conclusion
[25]
In my view, the application must fail due lack of authority to
institute and prosecute these proceedings.
[26]
In the result, the following order is made.
The
application is dismissed with costs.
HINANA
AJ
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
Attorney
for the Applicant
: Mr
Mgxaji
Instructed
by
: Mgxaji
& Co
3
Gleencombe Flats
45
Leeds Road
MTHATHA
Attorney
for the First Respondent
:
Mr Ceza
Instructed
by
: M V
Ceza & Associates
No.
34 Victoria Street
MTHATHA
Date
Heard
25 April 2024
Date
delivered
28 May 2024
[1]
Page 7.
[2]
Page
148.
[3]
2004 (3) SA 615
(SCA).
[4]
Ibid
at para 19.
[5]
Uniform Rules of Court.
[6]
1992 (2) SA 703
(W
)
at p 705.
[7]
1957
(2) SA 347
(CPD).
[8]
Ibid at pp 352-2.
[9]
Paragraph
20.8 page 12.