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[2024] ZALMPPHC 61
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Ledwaba v Provincial Commissioner SAPS (Limpopo) and Others (3488/2020) [2024] ZALMPPHC 61 (14 June 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
Case Number: 3488/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: NO
DATE: 2024-06-14
SIGNATURE
In the matter between:
LESIBA JACK
LEDWABA
APPLICANT
And
PROVINCIAL
COMMISSIONER SAPS (LIMPOPO)
FIRST RESPONDENT
LUCKY
RAMASHALA
SECOND RESPONDENT
SPCA
MOKOPANE
THIRD RESPONDENT
MINISTER OF
POLICE
FOURTH RESPONDENT
MUNICIPAL MANAGER OF
MOGALAKWENA
LOCAL
MUNICIPALITY
FIFTH RESPONDENT
MEC FOR COOPERATIVE
GOVERNANCE HUMAN
SETTLEMENT AND
TRADITIONAL AFFAIRS
(LIMPOPO
PROVINCE)
SIXTH RESPONDENT
Neutral
citation:
Ledwaba
v
Provincial
Commissioner
of
the
SAPS,
Limpopo
(3488/2020)
[2024] ZALMPPHC 59 (14 June 2024)
Coram:
Kanyane AJ
Heard:
14 November 2023
Delivered:
This judgment is handed down
electronically by circulation to the parties through their legal
representatives' e-mail addresses.
The date for the hand-down is
deemed to be 14h30 on 14 June 2024.
Summary:
Interpretation of legislation –
Limpopo Pounds Act, 3 of 2002 - Subsidiarity barring direct reliance
on s 25 of the Constitution
– Declaratory relief that the
impoundment and sale of the applicant’s cattle was unlawful
granted – Applicant
seeking an order for damages in motion
proceedings –– requirements for such relief not made out.
ORDER
1.
It is declared that:
1.1.
The applicant was the owner of 15 head of
cattle impounded and removed by the third respondent, at the instance
of the second respondent,
on or about 13 June 2017 at or near
Mapateng village, Ga-Mashashane, to the pound operated by the third
respondent at Mokopane
(the impounded cattle).
1.2.
The impoundment of the impounded cattle by
the third respondent, at the instance of the second respondent, was
unlawful.
1.3.
The third respondent’s sale of the
impounded cattle on or about 13 July 2017 was unlawful.
2.
The third and fourth respondents shall
jointly and severally pay the applicant’s costs occasioned by
this application, the
one paying the other to be absolved, including
the costs of counsel on Scale B.
3.
Save as aforesaid, the application is
dismissed.
JUDGMENT
Kanyane, AJ Introduction
[1]
This
case is about the impoundment and sale of stray cattle.
The
applicant’s essential complaint is that the respondents are
responsible for the unlawful impoundment and sale of 15 head
of
cattle belonging to him in contravention of the provisions of s 25 of
the Constitution and the Limpopo Pounds Act, 3 of 2002.
[1]
[2]
The
applicant seeks declaratory orders declaring that the impoundment and
sale of his cattle was unlawful for want of compliance
with the
provisions of the Act and violated his rights in terms s 25 of the
Constitution.
[2]
Consequent
to these declaratory orders, he seeks orders
(a)
that
the respondents are liable to compensate him for the damages he has
suffered due to the loss of his cattle,
[3]
and
(b)
that
the matter be postponed
sine
die
for
a determination of the quantum of the damages to be paid to him. The
participating respondents oppose the relief sought on various
grounds.
The parties
[3]
The applicant is a resident of Moshate
Section, Ga-Mashashane village, in the Capricorn district.
[4]
The
first respondent is the Provincial Commissioner of the South African
Police
Service for the Limpopo province.
[4]
The
second respondent, Capt. Lucky Ramashala, is a police officer
attached to the SAPS’ Provincial Stock Theft Unit in Polokwane.
[5]
The third respondent is the Society for the
Prevention of Cruelty to Animals: Mokopane. The SPCA is registered
with the National
Council of Societies for the Prevention of Cruelty
to Animals in terms of the Societies for the Prevention of
Cruelty to Animals Act, 169 of 1993.
[6]
The fourth respondent is the Minister of
Police, who is the executive authority of the SAPS required to be
cited as nominal respondent
in proceedings instituted against the
SAPS by
s 2(1)
of the
State Liability Act, 20 of 1957
. I refer to the
Minister, the Provincial Commissioner and Capt. Ramashala
collectively as the
SAPS respondents
.
[7]
The fifth respondent is the municipal
manager of the Mogalakwena Local Municipality, a local municipality
established in terms of
the Local Government: Municipal Structures
Act, 117 of 1998. Pounds are a local government matter over which the
provincial government
exercises exclusive legislative competence –
see
Part B
of Schedule 5 to the Constitution.
[8]
The sixth respondent is the MEC responsible
for cooperative governance, human settlements in the Limpopo
Provincial Government.
The MEC is cited in her capacity as the
executive authority of the Limpopo Department of Cooperative
Governance, Human Settlements,
and is charged with the administration
of the Act.
The pleaded facts
[9]
Much of the argument in this case
concentrated on whether the compensation relief sought could properly
have been brought by way
of motion proceedings. The respondents –
especially the SPCA – contend this is impermissible as there
were foreseeable
disputes of fact. I deal with this issue first.
[10]
The general rule is that motion proceedings
are all about deciding questions of law on undisputed facts (
National
Director of Public Prosecutions v Zuma
2009
(2)
SA 277
(SCA)
(2009 (1) SACR 361
;
2009 (4) BCLR 393
;
[2009] 2 All SA 243
;
[2009]
ZASCA 1)
para 26);
Ndlozi v Media 24 t/a
Daily Sun and Others
2024 (1) SA 215
(GJ) para 20). The affidavits setting out
those facts are both the statement of the parties' respective cases
and the evidence for
the truth of the propositions stated in the
affidavits. Unless the court can decide the application on the
undisputed or common-cause
facts, it must dismiss the application or
refer any material dispute of fact to trial (
Ndlozi
v Media 24
, above).
[11]
For the for the reasons given by Wilson J
in his comprehensive judgment in
Ndlozi
v Media 24
(which surveyed the relevant
authorities and with whose reasoning I respectfully agree), I
approach this matter on the basis that
there is no legal or doctrinal
bar for a claimant – in appropriate circumstances where
liability can properly be determined
on the papers, to seek an order
on motion that a respondent is liable to him in damages together with
in order that only the quantum
for these damages be decided at a
trial in due course (
Ndlozi v Media 24
,
at paras 20 – 26). This seems to me to conduce to the interests
of judicial economy in a country where judicial resources
are scarce
and overstretched.
[12]
As my analysis of the undisputed and common
cause facts will show, the real disputes of fact between the
applicant, the SAPS respondents
and the SPCA are limited, and it is
possible to determine the relief sought on this basis. Naturally,
where there is a genuine
dispute of fact, I have preferred the
respondents’ version except where such version is so
far-fetched or clearly untenable
that the court is justified in
rejecting it on the papers (see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H – 636B;
Khumalo
v Independent Electoral Commission of South Africa
(0025/24EC)
[2024] ZAEC 20 (12 June 2024) at para 7.).
[13]
Since the applicant elected to bring these
proceedings on motion, he assumed the risk that some of his claims
may be dismissed where
foreseeable disputes of fact arise (
Ndlozi
v Media
, above, par 24).
[14]
It is common cause between the applicant
and the SAPS respondents that the applicant was the owner of 15 head
of cattle which were
kept at his home at Ga- Mashashane. Since the
applicant lived in Alexandra, the cattle were in the custody of a
herdsman, who was
also the applicant’s brother, Mr Khunkhwana
Phineas Ledwaba.
[15]
The applicant put up a supporting affidavit
deposed by the herdsman on 15 March 2018, in which the latter
confirms that on 10 July
2017, he released the cattle in issue to the
grazing fields. When he went to drive the cattle back home that
afternoon, he could
not locate them. The next day, he launched a
search for them at the grazing fields and at neighbouring villages,
without success,
until he was contacted by one David Matlwa, who
advised him that certain cattle matching the description of the
missing cattle
had been “
loaded
”
by Capt. Ramashala at Mapateng village.
The
next
day,
he
contacted
Capt.
Ramashala,
who
confirmed
having
taken
the
cattle
to
the
pound
as
people
thought
the
cattle
belonged
to
white
farmers
because they did not look like the local
cattle.
[16]
The statement proceeds:
“
After
a while [Capt. Ramashala] came to take me to the pound so that I will
(sic!) identify. On my arrival at the pound I found
is cattle of my
brother still there. He then took me back home when we back home he
told me that if the cattle exceed a stipulated
time they will be sold
so that the pound master to cover the costs.”
[17]
The applicant also put up two affidavits
deposed to by Capt. Ramashala under Mashashane SAPS Enquiry No.:
4/7/2017 as “A9”
and “A10”, respectively. The
first statement was deposed to on 31 January 2018, in which Capt.
Ramashala states
that
at about 18h00 on 13 July 2017 (i.e., two days after the applicant’s
cattle went missing) he was travelling from Rietfontein
to Mapateng
when he was stopped by boys who alerted him to cattle that were
unknown in the area. They directed him to the cattle,
which were 15
in number, and of which only two were branded. He caused these cattle
to be kraaled at Mapateng crush pen where “
stock
owners were summoned to view them
”.
The cattle not having been identified, he “
summoned
the pound master to collect the cattle and impound them so that they
are safe
”. He estimated the value
of the animals at R100 000 and concludes by stating that the animals
“
are presently at SPCA Mokopane
”.
[18]
The second statement is undated, but was
certainly deposed to after the first statement, given its numerical
reference and its contents.
In it, Capt. Ramashala deals with his
interactions with the applicant and his brother after the impoundment
of the cattle. He says
that after the impoundment of the cattle, he
was telephoned by
the
applicant’s brother who indicated that the cattle that he had
impounded could be those of his brother, the applicant.
He advised
the applicant’s brother to go view the cattle at SPCA Mokopane
and come back to him. Capt. Ramashala – so
his statement
continues – then approached one Mr Mfanana Ledwaba and his son,
to whom he related the story of the impounded
cattle. Mr Mfanana
Ledwaba told him that the impounded cattle could be those of the
applicant, as his cattle were missing, and
that the applicant’s
brother was looking after the cattle.
[19]
The statement continues. According to it,
Capt. Ramashala and Mr Mfanana Ledwaba drove to the home of the
applicant’s brother,
where Capt. Ramashala enquired from the
applicant’s brother whether the latter had gone to view the
cattle. The response
he received was that the applicant’s
brother had telephoned the applicant, “
who
did not show interest to come back home so that they proceed to SPCA
to view the cattle
”. At Capt.
Ramashala’s request, the applicant’s brother telephoned
the applicant, and Capt. Ramashala spoke to
him. Capt. Ramashala’s
account of that conversation is as follows:
“
I
told [the applicant] to view cattle at SPCA and if the cattle are his
to take them as they are being charged.
His response was that
SPCA is keeping those cattle from him so I should not bother. I then
left him.”
[20]
According to the statement, Capt. Ramashala
took the applicant’s brother to the SPCA the following day to
view the impounded
cattle, and the latter confirmed that the cattle
belonged to the applicant. Capt. Ramashala then told the applicant’s
brother
to talk to the applicant to go to the SPCA to identify the
cattle. The statement concludes, in relevant part:
“
[The
applicant] did not go to identify the cattle until the SPCA auctioned
the cattle.”
[21]
The applicant also put up a form on the
SPCA’s letterhead, which indicates that the SPCA received 15
stray cattle of “
mixed
”
colours and markings, 13 female and two male, from Capt. Ramashala on
13 June 2018. A manuscript note on the form says “
sell
by 14/7/2017
”. Further down the
page, another manuscript note says “
R37
200 – 31 days excluding transport
”.
[22]
Another piece of evidence put up by the
applicant is a tax invoice issued by Vleissentraal Bosveld (Pty) Ltd
dated 13 July 2017
in respect of an auction of 15 cattle, including 8
cows, 5 heifers and 2 oxen on that date at an auction in Bela-Bela.
[23]
The
final piece of evidence that the applicant relies on is a transcript
of an e- mail
chain
between
the
SPCA
(
m[...]
)
to
various
members
of
the SAPS Provincial Stock Theft Unit on 11 August 2017, relating to
two herds of cattle apparently entrusted to the SPCA by the
SAPS. The
relevant portion of the e- mail communication (which has not been
denied by the SPCA) says:
“
15
Cattles from Mashashane was at our pound for 30 days and was sold at
Warmbaths Auction on 13/7/2017. the 21 days lapsed on 4/7/2017”.
As we will see below,
this reference could only have been to s 16(1), which authorises a
Poundmaster to advertise the sale of impounded
stock that is not
released within 21 days of impoundment.
[24]
Both the SAPS respondents and the SPCA
dealt fully with the founding affidavit supporting affidavits and
annexures thereto presented
in support of the application.
[25]
Capt.
Ramashala, who deposed to the answering affidavit on his own behalf
and on behalf of the Provincial Commissioner, did not
deny the
contents of his statements put up by the applicant.
[5]
The
Minister made common cause with the Provincial Commissioner and Capt.
Ramashala.
[26]
To recapitulate: as between the applicant
and the SAPS, there is very little dispute on the facts. These facts
are common cause:
(a)
The applicant was the owner of 15 head
of cattle which were kept at his home at Ga-Mashashane, which were in
the custody of his
brother.
(b)
The applicant’s brother let the
cattle out to graze on 10 July 2017, and could not find them later
that afternoon.
(c)
The next day, 11 July 2018, the
applicant’s brother went on a search of the cattle in the
grazing fields and in neighbouring
villages, without success.
(d)
At about 18h00 on 13 July 2018, Capt.
Ramashala was travelling to Mapateng when he was flagged down by boys
who alerted him to cattle
that were unknown in the area. He then
caused the cattle to be kraaled at Mapateng crush pen where local
stock owners were summoned
to view them.
(e)
When cattle were not identified, he
summoned the Poundmaster, i.e., SPCA Mokopane, to collect the cattle
and impound them so that
they are safe.
(f)
Sometime thereafter, Capt. Ramashala
took the applicant’s brother to the SPCA to view the impounded
cattle, and the latter
(at least to Capt. Ramashala) confirmed that
the cattle belonged to the applicant.
(g)
Capt. Ramashala telephonically
requested the applicant to attend at SPCA Mokopane to identify the
cattle. The applicant did not.
(h)
The cattle were sold by the SPCA at a
public auction at Bela Bela on or about 13 July 2017.
[27]
The
SPCA admits that it impounded 15 cattle in the manner described by
the applicant,
[6]
but
specifically denies
(a)
that
the applicant was the owner of those cattle and
(b)
that
any representative of the applicant viewed the cattle at the
pound.
[7]
[28]
In view of the SPCA’s admission that
it impounded 15 cattle at the request of Capt. Ramashala and in the
manner described
by the applicant, its denial of the applicant’s
allegation that he was the owner of the cattle does not raise a
proper dispute
of fact that would require the matter to be decided on
the SPCA version. There is string of cogent evidence, including
evidence
under oath from Capt. Ramashala, the police officer who
procured the impoundment of the cattle by the SPCA, that both the
applicant
and his brother asserted ownership of the impounded cattle
(the latter on behalf of the applicant), and that shortly thereafter,
Capt. Ramashala took the applicant’s brother to the SPCA’s
pound, where the applicant’s brother identified the
cattle as
belonging to the applicant and entrusted to his care.
[29]
Neither
does the SPCA deny that it caused the impounded cattle to be sold at
an
auction
at
Bela
Bela
on
13
August
2017
as
indicated
in
the
invoice
already
described.
[8]
When
confronted with the e-mail where its representative confirmed the
sale of the impounded cattle,
[9]
the
answer by the SPCA’s deponent was that:
“
I
have personally interviewed all employees and officials at the pound
and state in
the
strongest of terms that if the pound was indeed visited by [Capt.
Ramshala] and the brother of the applicant, which is still
denied,
they did so without the assistance or attendance to any query by any
official of the pound.”
[30]
I return below to the impact of this latter
denial on the applicant’s
compensation relief. However, for present
purposes there is, in my view, is no proper dispute before me that
the SPCA’s behest,
the applicant’s cattle were impounded
by the SPCA on 13 June 2017 and later sold by it at a public auction
on 13 July 2017.
[31]
It is against this factual background that
I proceed to examine of the relevant provisions of the Act.
The Act
[32]
A brief outline of the provisions of the
Act will conduce to an understanding of the scheme of the Act and its
application to these
facts.
[33]
The MEC may, at the request of a
Municipality, establish for such Municipality one or more municipal
pounds (s 2
(a)
).
The MEC exercises oversight over the control and maintenance of such
pounds (s 3) and may abolish any such pound (s 4). A municipal
pound
established in terms of the Act must be erected and maintained by the
Municipality concerned out of monies appropriated by
the Municipality
for that purpose.
[34]
A municipality must appoint a Poundmaster
for each municipal pound who must, as far as possible, be an employee
of that Municipality
(s7(2)). In response to the SPCA’s
contention in its answering affidavit that it was acting as a
Poundmaster appointed as
such in terms of s 7(2) by the Mogalakwena
Local Municipality, the applicant caused that Municipality’s
municipal manager
to be joined as the fifth respondent.
[35]
The Poundmaster must receive all stock
tendered for impoundment in accordance with the Act (s 8(
a
));
he must issue an official receipt to every person tendering stock or
impoundment (s 8(
b
));
he must forthwith, in such a manner that he may deem expedient,
notify the owner of the impounded stock, if the name and address
of
the owner known to him (s 8(
c
));
and he must submit the prescribed returns (s 8(
g
)).
[36]
The Act defines the
owner
,
in relation to stock, to include the person who is in lawful
possession of that stock (s 1, sv “
owner
”).
In this case, the applicant’s brother clearly qualified as the
owner of the cattle for the purposes of the Act.
[37]
Subject to the provisions of the Act, a
member of the SAPS who on any public road finds stock that is not
under proper supervision
and control or who at any place, finds any
stock whose presence at such a place is contrary to law, may impound
such stock or cause such stock to be
impounded –
see
s
9(1).
[38]
The Poundmaster is responsible for feeding
the impounded stock, and the costs thereof must be recovered in terms
of the Act (s 11).
Any person tendering stock for impoundment must at
the same time furnish to the said Poundmaster (
a
)
the name and address of the person tendering stock, the owner of the
land on which
such
stock
was
found
trespassing
and
the
owner
of
the
livestock,
if
known;
(
b
)
the name of the place where the stock was
found trespassing; (
c
)
an indication of the circumstances in which the stock was found and
whether the stock was at the place concerned contrary to any
law; or
particulars of any damage caused by the stock.
[39]
A Poundmaster must release any impounded
stock if requested by the owner or authorized agent of the owner of
such stock against
payment in full of all moneys, costs and
compensation due, in respect of such stock, in terms of the Act; and
if the person claiming
ownership of the impounded stock or agent
proves ownership of such stock by means of documents and or marks on
the said stock to
the satisfaction of the Poundmaster (s 15(1)).
[40]
Section 16 deals with the advertisement and
sale of stock by public auction. Its relevant provisions of section
16 read:
“
(1)
If
impounded
stock
is
not
released
within
21
days
from
the
date
of impoundment, the Poundmaster must
with
the approval of the Head of Department or Municipal Manager as the
case may be, and by notice in the prescribed form, advertise
the
intended sale of such stock by public auction.
(2)
The Poundmaster must:
(a)
make the advertisement:
(i)
at least seven days before such public
auction;
(ii)
at the pound concerned or at the nearest
auction site;
(iii)
in
the
Gazette
in the
official
languages
used
in
the
Province; and
(iv)
in
a
newspaper
circulating
in
the
area
in
which
the
pound
concerned is situated, in at least two
official languages.
(b)
furnish a copy of such notice to the
nearest Police Station and to the Poundmaster of every pound within a
radius of 30 kilometers
from the pound concerned.
(c)
paste a copy of such notice on the
notice board at the pound concerned and at the office of the Head of
Department.
(3)
All stock offered for sale at a public
auction in terms of this Act, must be sold for cash without reserve
to the highest bidder.”
[41]
If the impounded stock is sold by public
auction under the Act, the Poundmaster must in respect of such stock
deduct from the proceeds
of the auction sale all moneys, costs,
allowances and compensation recoverable in terms of the Act (s 19).
[42]
The balance arrived at after deduction of
all fees, allowances, costs and compensation from the proceeds of the
public auction accrues
to the Municipality or to the Government, as
the case may be (s 19(3)).
[43]
Finally, the Act provides a procedure for
the owner of stock impounded and sold at an auction to claim the
proceeds of that pound
auction.
In
terms of s 20, the Poundmaster who sold the stock by public auction
in terms of the Act may, if the owner of the sold stock applies
for
such proceeds within 12 months of the auction, and upon submission of
satisfactory proof of ownership in respect of the stock,
order that
compensation equal to the balance arrived at after deduction of all
fees, allowances, costs and compensation referred
to in s 19(3) be
paid to the owner by
the
Municipality or the Government, as the case may be.
[44]
This exposition of the provisions of the
Act now leaves the way clear to evaluate the applicant’s
claims. I do so under five
headings. First, I consider whether the
claim for a declaratory order that the impoundment and sale of his
cattle violated his
s 25 rights to property is competent. Second, I
consider the claimed declarator to the effect that the impoundment
and sale of
the cattle was unlawful on account of non-compliance with
the relevant provisions of the Act. Thirdly, I consider the claim for
Capt Ramashala’s committal to prison. Fourthly, I consider the
compensation relief. Finally, I consider the issue of costs.
The constitutional
breach relief is impermissible.
[45]
The
applicant seeks an order declaring that his s 25 rights have been
violated by the impoundment and sale of his cattle.
[10]
Section
25(1) provides that no one may be deprived of property except in
terms of law of general application, and no law may permit
arbitrary
deprivation of property. The Act is clearly a law of general
application in this province, which permits the deprivation
of
livestock owners to their stock in certain circumstances.
[46]
The Act regulates
inter
alia
how stray livestock is to be dealt
with in this province. Pound legislation is firstly aimed at
establishing a proper order to deal
with stray livestock. For this
reason, such livestock may be impounded and, if not claimed in terms
of the mechanisms of the Act,
may be sold by the Poundmaster by
public auction. The Poundmaster is entitled to recover his costs from
the proceeds of the sale
and is required to remit the balance to the
Municipality.
[47]
The Act clearly contemplates the
deprivation of ownership to livestock in these circumstances. But it
also goes to some length to
protect the proprietary rights and
interests
of
owners
of
the
impounded
stray
livestock.
For
instance,
the
Act
requires the person tendering the stock for
impoundment to
inter alia
furnish
the Poundmaster with the name and address of the owner of the stock,
if known; the Poundmaster must notify the owner of
the impoundment,
if his details are known; if the stock is not released within 21 days
of impoundment, the Poundmaster must sell
the stock by public
auction, but must
inter alia
advertise
the intended sale widely. These
provisions
are all intended at protecting the proprietary rights of the owner of
impounded livestock.
[48]
The applicant does not contend that the Act
permits arbitrary deprivation of property. In fact, he relies on
alleged non-compliance
with the Act for his claims.
[49]
This being the case, I must decline to
consider this prayer because it is precluded by the principle of
subsidiarity, “
the judicial theory
whereby the adjudication of substantive issues is determined with
reference to more particular, rather than
more general,
constitutional norms
”. See
SAHRC
obo SA Jewish Board of Deputies v Masuku
2022
(4) SA 1
(CC)
(2022 (7) BCLR 850
;
[2022] ZACC 5)
at para 102.
[50]
The principle of subsidiarity was explained
in the following terms by the Constitutional
Court
in
S
v
Mhlungu
and
Others
1995
(3)
SA
867
(CC)
(1995
(2) SACR 277
;
1995 (7) BCLR 793
;
[1995]
ZACC 4)
(
Mhlungu
)
para 59 –:
“
Once
legislation to fulfil a constitutional right exists, the
Constitution's embodiment of that right is no longer the prime
mechanism
for its enforcement. The legislation is primary. The right
in the Constitution plays only a subsidiary or supporting role.'
Ultimately,
the effect of the principle is that it operates to
ensure that disputes are determined
using the specific, often more comprehensive, legislation enacted to
give effect to a constitutional
right, preventing them from being
determined by invoking the Constitution and relying on the right
directly, to the exclusion of
that legislation
.”
[51]
Thus construed, a direct reliance on s 25
of the Constitution is impermissible. It
follows
that
the
applicant
is
not
entitled
to
a
declaratory
order
that
his
section
25 rights have been violated.
Was the impoundment of
the applicant’s cattle lawful?
[52]
It is common cause that Capt. Ramashala
“summoned” the SPCA to impound the applicant’s
cattle at Mapateng village,
and the SPCA complied. Capt. Ramashala
therefore caused the stock to be impounded by the SPCA as
contemplated in s 9(1)(
b
)(iii).
[53]
The applicant put the lawfulness of the
impoundment squarely in issue in his notice of motion, but the
evidence of such unlawfulness
in the founding affidavit was scant, to
be charitable of the applicant.
[54]
The
SPCA’s answer to this was that it had been duly appointed as
Poundmaster “
for
the Municipal district of Mokopane and in its capacity as appointed
Pound master, had authority to act
”.
[11]
In
support of this allegation, the SPCA put up a letter dated 19
February 2018 (some eight months after the cattle were impounded
and
sold) from the municipal manager, which first indicates that the
agreement between the Municipality and the SPCA expired on
30 June
2017 and that, “
[p]ending
approval of the Municipal Council, you shall continue to operate a
Municipal pound
on
the same terms and conditions as per the agreement dated 18 July 2012
bearing in mind that the Municipal pound under your administration
can only be utilized for
the
Impoundment of animals within the boundaries of Mogalakwena
Municipality only
”.
[55]
In reply, the applicant sharply raised the
issue that Capt. Ramashala had caused the cattle to be impounded by
the SPCA, which was
not a Poundmaster for the area of Ga-Mashashane,
which falls within the Polokwane Local Municipality, and that the
SPCA had no
jurisdiction to impound the stock. As I have already
observed, the Act requires every Municipality to appoint a
Poundmaster for
each municipal pound. The respondents did not rejoin
on this point, and the matter was argued on this basis.
[56]
The
general principle is that an applicant seeking relief on motion
should set out all the grounds which he says entitle him to
relief,
and he is not generally allowed to supplement those grounds in reply.
The learned authors of
Erasmus:
Superior Court Practice
[12]
set
out the position as follows:
“
All
the necessary allegations upon which the applicant relies must appear
in his founding affidavit, as he will not generally be
allowed to
supplement the affidavit by adducing supporting facts in a replying
affidavit. This is, however, not an absolute rule
for the court has a
discretion, which must be exercised judicially, to allow new matter
in a replying affidavit in exceptional
circumstances, giving the
respondent the opportunity to deal with it in a second set of
answering affidavits. In the exercise of
this discretion a court
should in particular have regard to: (i) whether all the facts
necessary to determine the new matter raised
in the replying
affidavit were placed before the court;
(ii) whether the
determination of the new matter will prejudice the respondent in a
manner that could not be put right by orders
in respect of
postponement and costs; (iii) whether the new matter was known to the
applicant when the application was launched;
and (iv) whether the
disallowance of the new matter will result in unnecessary waste of
costs. Thus, a distinction must be drawn
between a case in which the
new material is first brought to light by the applicant who knew of
it at the time when his founding
affidavit was prepared and a case in
which facts alleged in the respondent’s answering affidavit
reveal the existence or
possible existence of a further ground for
relief sought by the applicant. In the latter type of case the court
would obviously
more readily allow an applicant in his replying
affidavit to utilize and enlarge upon what has been revealed by the
respondent
and to set up such additional ground for relief as might
arise therefrom. The court will, however, not allow the introduction
of
new matter if the new matter sought to be introduced amounts to an
abandonment of the existing claim and the substitution therefor
of a
fresh and completely different claim based on a different cause of
action. Nor will the court permit an applicant to make
a case in
reply when no case at all was made out in the original application.
. . .
An applicant is entitled
to introduce further corroborating facts by means of a replying
affidavit should the contents of the answering
affidavit call for
such facts.”
[57]
My view is that this is one of those
circumstances where the applicant is allowed to augment his case in
reply. His cattle, which
were missing, were impounded, initially
without his knowledge. The information regarding that impoundment was
exclusively within
the control of the SAPS and of the SPCA. When
these respondents clarified where and when the cattle had been
impounded, and
how
they were dealt with, he was entitled to raise the point that they
were impounded by the SPCA, which was not authorised to do
so as the
location of the impoundment fell outside of the municipality for
which the SPCA was the appointed Poundmaster.
[58]
Even I were assume in the respondents’
favour that the applicant’s cattle were impounded within the
municipal boundaries
of the Mogalakwena Local Municipality, the
evidence put up by the SPCA itself indicates that the agreement which
entitled it to
act
as
Poundmaster
for
the
Mogalakwena
Local
Municipality
had
expired
before
the applicant’s cattle were impounded and was not renewed until
after the cattle had been sold.
[59]
It must follow that, if the SPCA was not
properly appointed Poundmaster for the Municipality where the cattle
were located, it could
not lawfully have impounded the cattle, as it
had no authority to do so – see
Fedsure
Life Assurance Ltd and Others
v
Greater
Johannesburg
Transitional
Metropolitan
Council
and
Others
1999 (1) SA 374
(CC)
(1998 (12) BCLR
1458
;
[1998] ZACC 17)
at para 58).
[60]
As I have already concluded, the
impoundment of the applicant’s cattle was at the instance of
Capt. Ramashala. I cannot fault
his contention that the cattle were
liable for impoundment – after all, the applicant’s
brother had not been able to
locate them for 48 hours after he first
realised they were missing. The applicant complains, correctly in my
view, that Capt. Ramashala
should have known to contact the right
Poundmaster to impound the cattle, and that his summoning of SPCA
Mokopane led to the unlawful
impoundment of the cattle. I agree: Capt
Ramashala is attached to
the
Provincial Stock Theft unit and should have been aware of who the
correct Poundmaster was. His summoning of SPCA Mokopane led
to the
impoundment of the cattle by a person who had no lawful authority to
do so and was unlawful.
[61]
The SPCA should equally have been aware of
the bounds of its authority, if there was any.
In the absence of countervailing evidence,
I hold that the SPCA's impoundment of the applicant’s cattle
was unlawful for want
of authority.
The lawfulness of the
sale
[62]
In his founding papers, the applicant
launched a frontal challenge to the lawfulness of the sale of the
impounded cattle, on the
basis that it had not complied with the
requirements of ss 15(1)
(a)
and
16 of the Act.
[63]
At
the stage of launching the proceedings, the applicant could not have
done much more than allege that the sale was not compliant
with the
statutory prerequisites stipulated in the Act for a Poundmaster to
lawfully sell the impounded cattle. This information
clearly lay
under the control of the SPCA, which simply refused to meet the
challenge. Its response was that “
all
the requirements have been met for a lawful auction of impounded
animals
”.
[13]
[64]
For
this quoted contention, the SPCA relies on an advertisement in the
Bosveld
Classifieds
of
14 – 20 July 2017 that “
There
are 15 stray cattle from Mashashane Village at the SPCA pound that
must URGENTLY be claimed by the owners
”.
[14]
[65]
But this is hardly any proof that the SPCA,
purportedly acting as Poundmaster and therefore performing a public
function, complied
with the advertisement and notification
requirements of s 16(2). The SPCA, which was purportedly acting as a
public functionary,
put up no evidence that the sale had been
approved by the Municipal Manager or the HoD, as required by the Act.
It adduced no evidence
to show that notice of the sale had been given
to the nearest police station, or that the notice of the sale was
posted on the
notice board at the pound concerned or at the office of
the HoD.
[66]
To
her credit, the deponent to the SPCA’s answering affidavit
indicates that she was only a temporary manager of the Mokopane
facility and that the information contained in her affidavit was what
appeared in the file.
[15]
[67]
In reply, the applicant correctly pointed
out that the SPCA had not put up any evidence that it had advertised
the sale of the cattle
as required by the Act. The SPCA did not seek
leave to file a rejoinder.
[68]
The applicant has not made out any factual
basis to support a challenge
based
on s 15(1)
(a),
which
requires Poundmaster to release any impounded stock if requested by
the owner or authorized agent of the owner of such stock
against
payment in full of all moneys, costs and compensation due, in respect
of such stock, in terms of the Act; and if the person
claiming
ownership of the impounded stock or agent proves ownership of such
stock by means of documents and or marks on the said
stock to the
satisfaction of the Poundmaster.
[69]
This is because there is no evidence that
the applicant or his brother ever attempted to claim the impounded
cattle from the Poundmaster,
who the legislation charges with the
duty of releasing impounded stock if the requirements of the section
are engaged, or to tender
payment of the prescribed costs. The
requirements are not engaged here because the applicant does not
allege any interactions with
the Poundmaster; he only alleges
interactions with Capt. Ramashala, even during the visit to the pound
to view the cattle. This
is why I am unable to reject the SPCA’s
version that neither the applicant or his representative sought to
claim the impounded
cattle from the Poundmaster. The matter must be
decided on this basis.
[70]
In my view, the real question is whether
the SPCA – acting, as it contends, as Poundmaster –
complied with the requirements
of the Act for the advertisement and
sale of the impounded cattle. To recapitulate again, those
requirements are the following:
a.
If the impounded stock has not been
released within 21 days of impoundment, the Poundmaster must
advertise the sale of the stock
by public auction in the prescribed
form.
b.
But the Poundmaster may only sell such
stock with the approval of the HoD or the Municipal Manager, as the
case may be.
c.
The Poundmaster must make an advertisement,
at least seven days before such public auction, at the pound
concerned or at the nearest
auction site, in the
Gazette
in the official languages used in the
Province, and in a newspaper circulating in the area in which the
pound concerned is situated,
in at least two official languages.
d.
The Poundmaster must furnish the notice of
the sale to the nearest police station and to the Poundmaster of
every pound within a
radius of 30 kilometres from the pound
concerned.
e.
The Poundmaster must paste a copy of such
notice on the notice board at the pound concerned and at the office
of the Head of Department.
[71]
The procedures set out in s 16(2) provide
an important procedural safeguard for owners of the missing livestock
which has been impounded,
often without their knowledge.
[72]
A person acting as Poundmaster is a public
functionary who exercises a public function and is bound by the
obligations imposed by
s 165(4) of the Constitution to assist and
protect the courts to ensure the independence, impartiality, dignity,
accessibility
and effectiveness of the courts, and by s 195 to be
accountable and in fostering transparency by providing the public
with timely,
accessible and accurate information. The SPCA failed in
its performance of those obligations, which required
it to give the court an accurate account of
how it dealt with the impounded cattle.
[73]
I am satisfied that the objective evidence
and the undisputed facts show that the sale of the impounded cattle,
at the instance
of the SPCA, was unlawful in that it did not comply
with the publication requirements of s 16(2). It follows that a
declaration
of the unlawfulness of the sale must issue in the
applicant’s favour for want of compliance by the SPCA with the
provisions
of s 16(2) of the Act.
[74]
But what then? Does a declaration that the
sale was unlawful entitle the applicant to the remedies he seeks? I
consider this next.
The compensation relief
[75]
At the outset, it is necessary to consider
the claims against the municipal manager and the MEC, respectively,
because of the tenous
links sought to be drawn by the applicant
concerning their participation in the events that led to this
application.
[76]
The
applicant claims that the municipal manager (obo the Municipality)
should “
be
held liable for the damages I have suffered
”
[16]
as
a result of the sale of the impounded cattle because “
the
municipal manager should have ensured that all due processes were
followed prior to the auction of my livestock
”.
[17]
The
Municipality did not participate in the proceedings, but no case is
made against it. The applicant initially sought no relief
against the
Municipality. It was only upon the objection by the opposing
respondents regarding the non-joinder of the Municipality
that the
applicant did so.
[77]
The
claim against the MEC is premised on the single allegation in the
applicant’s supplementary affidavit that her liability
is “
due
to [her] failure to ensure that proper advertisements and notices of
the sale/auction of my livestock were followed
”.
[18]
[78]
The
MEC denies liability on the basis that the Department is not expected
to micromanage the functions of municipalities, and that
its duty is
only one of oversight.
[19]
She
is right. Her deponent asserts positively that her Department was not
given notice of the impoundment or intended sale of the
impounded
cattle, and that it did not grant authorisation of the impounded
cattle as required by s 16(1).
[79]
The case against the MEC must be decided on
her version. In motion proceedings, the affidavits constitute both
the pleadings and
the evidence. The applicant has not put up any
recognised legal ground the MEC is liable to compensate him, or any
evidence to
support such a claim. The applicant’s claim against
the MEC must be dismissed.
[80]
The applicant does not claim that the SPCA
auctioned the impounded cattle upon authorisation of the municipal
manager or the Head
of Department as required by s 16(1). The SPCA
also does not assert that it sought or obtained the approval of
either the Municipal
Manager of the HoD to sell the cattle, except
for glibly alleging that all the statutory requirements for the sale
were in place.
There is no link drawn between the conduct of the
Municipality or the Department, on the one hand, and the relief
claimed against
them. The claims against the Municipality and the MEC
must fail.
[81]
The compensation relief as against the SAPS
respondents and the presents a different conundrum, which is whether
the findings above
that that the impoundment and sale of the
applicant’s cattle were unlawful in that they did not comply
with the requirements
of the Act, without more, entitles the
applicant to an order that the
SAPS
respondents and the SPCA are liable to compensate him for the
pecuniary
loss
that he suffered because of the impoundment and sale of the impounded
cattle. In my view, the applicant has neither pleaded
nor essential
elements for the compensation relief.
[82]
The pleaded case against the SAPS
respondents hinges on the conduct of Capt. Ramashala. I have already
held that, while Capt. Ramashala’s
call for the impoundment of
the cattle was unimpeachable, he clearly caused the cattle to be
impounded by the SPCA, which had no
authority to act as Poundmaster
in the municipality where the cattle were located. In doing so, Capt
Ramashala fell into error,
and the result is that the impoundment of
the cattle by the SPCA was unlawful.
[83]
The applicant has presented this case on
the basis that compensation is the necessary corollary of a finding
that the impoundment
and sale of the cattle was unlawful. He has not
pleaded any recognised ground in law based on which the SAPS
respondents and the
SPCA are liable to compensate him for the damages
that he suffered because of the impoundment and sale of the cattle.
This is a
necessary precondition for the compensation relief.
[84]
As far as I have been able to establish,
the applicant would have one of two common law remedies arising from
the loss of his cattle
(a)
a
claim based on the
actio
rei vindicatio
or
(b)
the
actio
ad exhibendum
, depending on his
circumstances. Counsel for the applicant did not suggest there was
any other basis.
[85]
The
actio rei
vindicatio
is clearly not available to
the applicant because, and this is common cause, the cattle had
already been sold by the time that the
applicant instituted these
proceedings, and the respondents were therefore in no position to
restore the applicant in his ownership
of the cattle.
[86]
The
actio ad
exhibendum
allows a claimant to sue for
damages consequent upon the alienation of the claimant’s
property by another person, in this
case the SPCA. To succeed a claim
in terms of the
actio ad exhibendum
,
the applicant had to allege and prove four essential elements:
a.
First, that he was the owner of the cattle
at the time when they were alienated by the SPCA.
b.
Second, that the cattle were in the SPCA’s
possession as at the time of their sale.
c.
Thirdly, that the counterparty (in this
case the SPCA) had knowledge of his ownership of the cattle at the
time that he lost possession
thereof.
d.
Fourthly, the that the counterparty
intentionally or negligently disposed of the cattle.
[87]
The ultimate question is this: has the
applicant, on the papers, made out a case for the
actio
ad exhibendum
? If he has, then he is
entitled to have brought the proceedings on motion to seek a
declaratory order that the respondents make
good his loss and that
the matter be referred to oral evidence for the determination of the
quantum. If he has not, then his claim
must be dismissed at this
stage, since he has not sought the referral to oral evidence of those
facta probanda.
[88]
I have already concluded that the applicant
was the owner of the impounded cattle, that they were impounded by
the SPCA (ostensibly
acting as Poundmaster) and that the SPCA sold
the cattle before the applicant launched these proceedings. The first
two requirements
of the
actio ad
exhibendum
are met.
[89]
But the third and fourth requirements,
which are that the SPCA knew that the applicant was the owner of the
impounded cattle and
intentionally or negligently disposed of them
are not met. I have already indicated that the applicant has not
contended that he
for his brother attempted to claim the cattle from
the SPCA, though they were both aware of their whereabouts a few days
after
the cattle were impounded. This is fatal to a claim under the
actio ad exhibendum
,
as it cannot be said that the SPCA was aware of the applicant’s
ownership of the cattle when it sold them.
[90]
It follows that the compensation relief
must fail.
Costs
[91]
While the applicant failed in the
compensation relief, he has been substantially successful in these
proceedings against the SAPS
respondents and the SPCA. He and should
not easily be deprived of his costs. I can think of no other
considerations countervailing
against an order that the Minister and
the SPCA should jointly and severally be responsible for the
applicant’s costs.
[92]
The MEC was only joined at the insistence
of the SPCA. The applicant sought to assert his rights to property.
The application is
not frivolous or vexatious, or in any other way
manifestly inappropriate. The general rule in cases like these, that
the ordinarily,
if the government loses, it should pay the costs of
the other side, and if the government wins, each party should bear
its own
costs, must apply. There will be no order as to costs as
between the applicant and the MEC.
Conclusion and order
[93]
In the result, the following order is made:
1.
It is declared that:
a.
The applicant was the owner of 15 head of
cattle impounded and removed by the third respondent, at the instance
of the second respondent,
on or about 13 June 2017 at or near
Mapateng village, Ga-Mashashane, to the pound operated by the third
respondent at Mokopane
(the impounded cattle).
b.
The impoundment of the impounded cattle by
the third respondent, at the instance of the second respondent, was
unlawful.
c.
The third respondent’s sale of the
impounded cattle on or about 13 July 2017 was unlawful.
2.
The third and fourth respondents shall
jointly and severally pay the applicant’s costs occasioned by
this application, the
one paying the other to be absolved, including
the costs of counsel on Scale B..
3.
Save as aforesaid, the application is
dismissed.
TM Kanyane
Acting Judge
Limpopo Division,
Polokwane
Appearances:
For
the Applicant:
Mr
M Moitsi
Instructed
by:
Moitsi
& Associates
Polokwane
e-mail:
moitsiassociates@gmail.com
For
the SAPS Respondents:
Mr
M Maluleke
Instructed
by:
Office
of the State Attorney
Polokwane
e-mail:
ktepanyega@justice.gov
.za
For
the SPCA:
Mr
Rheeder
Instructed
by:
Rheeder
Attorneys
Polokwane
e-mail:
rheederprok@mweb.co.za
For
the MEC:
Mr
D Makhafola
Instructed
by:
Director
Makhafola Attorneys
Polokwane
e-mail:
directors@vodamail.co.za
[1]
Unless
otherwise specified, all references to a section are to a section in
the Act.
[2]
Applicant’s
Amended Notice of Motion (NoM), par 1 and 2.
[3]
NoM,
par 10.
[4]
Section
6(2)
of the
South African Police Service Act, 68 of 1995
, requires
the National Commissioner to appoint a Provincial Commissioner of
the Service for each province.
[5]
See
Founding Affidavit (
FA
),
paras 12 – 20; not denied in SAPS Answering Affidavit (
SAPS
AA
),
paras 7 – 16.
[6]
SPCA’s
AA, para 19
[7]
SPCA’s
AA, para 13.1
[8]
The
SPCA says this in para 21 of its AA
[9]
FA,
para 20; annexure “LJL10”
[10]
Amended
Notice of Motion, prayer 2
[11]
SPCA’s
AA, para 23.1
[12]
D
E van Loggerenberg, Superior Court Practice
[13]
SPCA’s
AA, para 24.1.
[14]
Ibid
;
Annexure SP2 to the SPCA’s AA.
[15]
Ibid.
[16]
Applicant’s
supplementary affidavit (SA), para 18.
[17]
Applicant’s
SA, para 15.
[18]
Applicant’s
SA
,
para 20.
[19]
MEC’s
AA, para 6.1