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[2024] ZAFSHC 184
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Mlozana v Mangaung Metropolitan Municipality (2723/2022) [2024] ZAFSHC 184 (14 June 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
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No.
2723/2022
In
the matter between:
TSHIRELETSO
KHUSELO YANNICK
MLOZANA
Applicant
And
MANGAUNG
METROPOLITAN
MUNICIPALITY
Respondent
CORAM:
DAFFUE, J et
MOLITSOANE, J
HEARD
ON:
13 MAY2024
JUDGMENT
BY:
MOLITSOANE,
J
DELIVERED
ON:
14 JUNE 2024
[1]
In his notice
of motion the applicant initially sought an order
'
reviewing
and setting aside the decision of the respondent not to grant [him] a
Title Deed at T44
,
B[…]
Square
,
Mangaung,
Bloemfontein
'
and an order
compelling the
r
espondent
to grant such title deed
.
When
confronted with the impossibility of granting such relief, an
amendment of the notice of motion was sought during oral argument
,
which was not
opposed, whereupon the word
'
title
deed
'
were
replaced by
'
site
permit'. The application will therefore be adjudicated on the basis
that the applicant seeks an order to review and set aside
the
decision of
t
he
respondent not to grant him a site permit (herein later referred to
as a PTO
, t
o
wit a permit to occupy) in respect of the property T44([...]) and an
order
t
o
compel the
respondent to
grant him a
PTO for the
said
property
.
This property
is also
referred to as erf 4[...] Bobo Square Bloemfontein (erf 4[...]). The
prayer
to
compel 'the
respondent to connect the applicant
.
to
the basic services
...
of
the
settlement'
was abandoned.
[2]
The
respondent
opposes the application on the following grounds:
(1)
that
the
applicant has failed to join Mr Simphiwe Mvotho (Mvotho), the current
permit holder
of erf 4[…],
in these proceedings; (2) that,
in
respect
of the
merits of the application, the applicant did not in terms of the
respondent's housing policy and
the
applicable
By-Laws qualify for a PTO
in
respect of erf
4[...] on
the
basis that he
did
not
reside
on
the site
in
question.
[3]
It is
common
cause that a few years ago, erf 47[…] was illegally
invaded
and
an
informal
settlement
was established which came to be known as B[…] Square. There
is a dispute between the parties as to when the said
informal
settlement was
established, but nothing turns on this issue. This
informal
settlement was
later recognized as a
legal
settlement.
The
rights to
occupy the land
were
also allocated to various occupants and
in
different
phases
of the
inform
al
settlement. According
to
the
respondent,
each site
in
the informal settlement
was
provided with an individual number allocated
to
the beneficiary who
was
given a PTO for the site
.
It is common
cause that the applicant
was
not allocated
a
PTO, hence these review proceedings.
[4]
It is
contended on
behalf of the respondent
that
the
applicant
ought to have
joined Mvotho
in
these
proceedings.
The
reason
for
this
contention
is
that the erf to which
the
applicant claims entitlement has been allocated
to
Mvotho
.
For
this reason
alone,
so it
is
submitted,
Mvotho ought to have
been
joined. The further
submission
of the
respondent is
that
the
relief
sought
by
the applicant,
if
granted,
would
compel the respondent
to
grant
permission to
occupy erf 4[…] to the applicant to
the
prejudice of Mvotho
.
The respondent
thus contends that Mvotho has
a
direct and substantial interest in any order
this
court might make in these proceedings.
[5]
The
applicant
submits
that
the joinder of
Mvotho
is not
required. According to the applicant,
he
pursues
this application in his own
interests.
He contends
in
reply that his
quest to be issued with a PTO has nothing to do with any other person
and that he did not 'place Mvotho's permit
at issue.'
[6]
During the
submissions before us, counsel for the applicant took us through the
answering
affidavit
to attack the
process
followed
by the
respondent
in
an attempt
to
illustrate
that the
record
furnished
in terms of
Rule 53(3)
of
the Uniform Rules of Court was lacking in detail and information and
did not enable the applicant to decide whether to join Mvotho,
or
not. It was submitted that the applicant
did
not
seek
to
evict
Mvotho
from
the
site
and
consequently,
it
was not
necessary to join him. Counsel for the applicant submitted that due
to the inadequacy
of
the
record
furnished,
the applicant
was
in
no
position
to know how
Mvotho would have a direct and substantial interest in these
proceedings, hence the applicant
saw no need to
join him.
[7]
The
court in
Absa
Bank Ltd v Naude
NO
[1]
set out the test for non-joinder as follows:
'
The
test whether there has been non-joinder is whether a party has a
direct and substantial interest in the subject matter of the
litigation which may prejudice the party that has not been joined. In
Gordon v
Department of Health, KwaZulu-Natal
it
was
held
that
if
an order or judgment cannot be sustained without necessarily
prejudicing the interest of third parties that had not been joined,
then those third parties have a legal
interest
in the matter
and must be joined.' (Footnote omitted).
[8]
In
Judicial
Service Commission and Another v Cape Bar Council and Another
[2]
the
court
held as follows:
'It
has now become
settled law that the joinder of a party
is
only required
as a matter of necessity - as opposed to a matter of convenience - if
that party has direct and substantial interest
which may be affected
prejudicially by the judgment of
the
court
in the proceedings
concerned (see
eg
Bowring NO v Vrededorp Properties
CC
and Another
2007 (5)
SA 391
(SCA) para 21). The mere fact that a party may have an
interest in the outcome of the litigation does not warrant a
non-joinder
plea
.
The
right of
a party to
validly raise the objection that other parties should have been
joined
to
the proceedings, has thus been held to be a limited one
.'
[9]
When
the applicant launched this application, he was aware that erf 4[...]
had been allocated to Mvotho,
[3]
stating that 'my permit was given to a person with the name of
Simphiwe Mvotho.' It is indeed so that a PTO does not confer real
rights to people to whom sites are allocated
,
but
same confers personal rights which are enforceable against the
municipality. Once a resolution is taken by the municipality
to
upgrade the informal settlement to a township
,
a
person granted a PTO would have a right to enforce his rights to
obtain ownership in terms of the Upgrading of Land Tenure Rights
Act
112 of 1991. This fact would thus be reason enough that Mvotho ought
to have been joined in these proceedings
.
[10]
In
these proceedings, the applicant does not attack the decision to
allocate the PTO to Mvotho. No relief is sought in the notice
of
motion in this regard
.
As
mentioned, the applicant seeks a PTO in respect of the very same site
to whom a PTO was issued to Mvotho. In my view, for as
long as the
decision to grant Mvotho the PTO has not been reviewed and set aside
by a court of law, such decision remains extant.
[4]
Even
if one were to consider this application as also encompassing an
indirect review of the decision to grant the PTO to Mvotho,
that not
being the case before us, it would certainly also have necessitated
his jo
i
nder.
If we were to grant the order sought by the applicant, the effect
thereof wou
l
d
be to effectively impugn the decision to grant the PTO to Mvotho and
thus impermissibly set it aside, o
r
at
worst, would have the effect of granting two PTO
'
s
to two different individuals in respect of one site with disastrous
consequences.
The
stance taken by the applicant ignores the persona
l
r
ights
of Mvotho and seems to suggest that the permit granted to Mvotho is
o
f
n
o
consequence and has nothing to do with him. This stance is
unfort
un
a
t
e.
[11]
Counse
l
for
the applicant referred us to the case of
Snyders
and O
th
e
r
s
v
De
J
ager
(Joinder
[5]
)
and
submitted with reference to that decision,
t
ha
t
t
h
e
j
o
in
de
r
of
M
votho
was not necessary.
Reliance
on this decision
i
s
misplaced.
Snyde
r
s
inv
o
l
ved
t
he
eviction of a
party
who resided on the premises, but was
n
o
t
jo
i
ned
in
the eviction proceedings between the landlord and the previous
occupant. The majority held that the joinder of the current occupant
in that case should be effected notwithstanding the fact that they
obtained occupation of the dwelling only after the Supreme Court
of
Appeal judgment had been handed down.
[6]
[12]
Writing
for the majority,
[7]
Zonda J
said the following on the issue of
joinder:
'[9]
A person has a
direct and substantial
interest in an
order that is sought in proceedings
if
the
order would directly affect such person's rights or interest. In that
case the person should be joined in the proceedings.
If the person
is
not
joined
in
circumstances
in which his
or her rights or interests will be prejudicially affected by the
ultimate judgment that may result from the proceedings,
then that
will mean that a judgment affecting
that
person's
rights or
interests
has
been given
without affording that person an opportunity to be heard
.
That goes
against one of
the
most
fundamental
principles of
our legal system. That
is
that, as a
general
rule,
no court
may
make an order
against anyone without giving that person
the
opportunity
to
be
heard
.
[1
O]
in the
context
of eviction proceedings
a court may
not
competently
make an order
that either directly
or indirectly
requires
someone
to
be evicted
without
that person
having been
joined
in
the
proceedings and heard
.
To do
otherwise
would mean
that a court may
in
effect
directly
or
indirectly
order
someone's
eviction
without
the
person
having
been
given
an opportunity
to be heard. Indeed, that would mean that the court would be making
an eviction order
against
someone
without
it
having
heard
from
that
person
in
regard
to
all
his
or
her
circumstances that the
court
is enjoined by section 26(3) of the Constitution
to
consider.
That
is where the
eviction
order relates to someone's home
.'
[13]
By parity
of
reasoning,
I
am of
the
considered
view
that the
sentiments
expressed in
the
above
quoted paragraphs apply equally
to
instances where rights have
been
conferred by the granting of the PTO. Such
rights,
also implicate
access
to
housing
of holders of
the
said
rights.
Fairness
dictate that
the permits
granted
to them
should
not be taken
from
them
without
having given
them the
opportunity
to be heard. In the absence of different
authority
of the same
court
and
on
the
same
issue, we are bound
by
the
decision
of the
majority in terms
of
the
stare
decisis
doctrine.
[14]
The applicant
was
aware of
the fact
that
the respondent had granted a PTO to
Mvotho
when
these
proceedings
were
instituted,
but
elected
not to join
him
.
This
justifies the dismissal of this application on this point alone,
instead of pending these proceedings while allowing the applicant
permission to bring a joinder application. Failure to join Mvotho in
these proceedings is thus fatal to the applicant's case. Contrary
to
what was suggested by the applicant's counsel, it was not the
respondent's duty to invite Mvotho to make submissions and/or
to join
him.
[15)
The invasion
of land poses a great challenge to government and especially to
municipalities which are constitutionally obliged to
provide basic
services to communities, including those in informal settlements.
Regulatory framework is thus indispensable in order
to formalize
informal settlements which came about as
·
a
result of such land invasions. Dealing with land invasions may take
the form of evicting the informal dwellers from the land invaded,
or
formalize the informal settlements in their original location. The
Mangaung Metropolitan Municipality By-Laws relating to Informal
Settlements promulgated in the Provincial Gazette No 60 of 25 October
2013 (the By-Laws) and the Mangaung Local Municipality Housing
Policy
approved by Council on 15 December 2005 (the Housing Policy) deal
with informal settlements.
[16]
The applicant seeks to attack what he calls the failure of the
respondent to grant him a PTO on various grounds
as set out in
section 6(2) of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). These are that the action taken by
the respondent was (a) for
a reason not authorized by the empowering legislation; (b) the
decision was taken for an ulterior purpose
or motive; (c) irrelevant
considerations were taken into account while relevant considerations
were not considered; (d) the decision
was taken because of the
unauthorized or unwarranted dictates of another person or body; (e)
the decision was taken in bad faith
,
or (f)
arbitrarily or capriciously.
[17]
The essence of
the
applicant's case is that he resided at the Bobo informal settlement
on erf 4[...] with his parents since 2014. When his parents
left the
said sett
l
ement
to live at his grandmother's place, he took over the site and has
been residing there. He took up employment in Krugersdorp
(in
Gauteng) and left the s
i
te
in possession
of one
Tshediso
Maseloa.
He later
learnt
that
a PTO
had
been
issued to Mvotho, but does not know what informed the decision to
grant the PTO to Mvotho. Nowhere in the founding affidavit
was any
issue taken with the process adopted to grant the PTO to Mvotho.
[18]
The opposition
to the application is anchored on the ground that the applicant did
not reside in the informal settlement when the
PTO's were issued and
further, that the shack on erf 4[…] was burnt down as it was
used as a drug den. The case of the respondent
is that another shack
was built on this said erf and an unauthorized person is currently
occupying the said erf.
[19]
The
respondent contends that it complied with its legislative and policy
requirements by holding meetings as required by its By-Laws
and also
put measures in place to monitor the occupancy of the settlement
area. According to the respondent questionnaires were
completed and
submitted by inhabitants to the Sub-Directorate: Housing for
compilation of a site register of the informal settlement.
The
applicant does not dispute that the respondent implemented
measures
to
manage and monitor the occupancy of the residents in the settlement
area,
[8]
but avers that the
respondent
'abused
its
authority.'
In
making
this averment, he relies on a bold statement and failing to back this
assertion with evidence. The applicant contends that
he had left
people on the site and should have been granted a PTO. In
circumstances where there are disputes of
fact,
the
version of the respondent must be preferred on the basis of the
principles
set
out in
Plascon-Evans.
[20]
In
so
far as the
respondent
contends
that the applicant did not
reside
on
erf 4[...]
at
the
relevant
time,
the following can be gleaned from the papers. On
the
applicant's
own version, in the founding affidavit, he is and
was
employed
outside
the
Free State Province and had left one
Tshediso
Maseloa in
occupation
of the premises as the crime rate was high in
the
area. This contradicts the
averment
made by
the
applicant in his
replying
affidavit
that
the site was left in
the
care of his brother. He
refers
therein
to annexure
A
annexed to
the
founding
affidavit,
allegedly
evidencing
that
the
site
had
been
left
in
possession
with his brother. This annexure, however, only serves
to
throw
another
spanner in the works in that the said annexure refers to one
Miss
Gloria
Mlozana,
who
clearly appears to be female. Save for the several
inconsistencies
in
the replying affidavit and
the
contradictions
between
those
allegations
and that contained in the founding affidavit as the record
will
reflect, the
applicant
eventually mentions in reply that he is staying at his
mother's
house
and
regarded himself as more vulnerable than the preferred beneficiaries
mentioned
by
him.
[9]
Notwithstanding this
admission, the applicant confirms
that
erf
2[…] -
which
is
not
one of the 18 properties in
the
lay-out
plan -
is
his parental home,
but
contradicts
himself,
stating
that
he
is
not
staying
there,
but
at
erf
4[…].
[10]
[21]
According to
the
respondent
the
implemented
measures
in
terms of
its
By-Laws were
geared
towards
ensuring that
only households and individuals
residing
in the informal
settlement
would qualify to be considered for the allocation of erven. At the
end of the day, it
is
unclear
if
the applicant
had
left
Maseloa, his brother,
or
Gloria on the premises.
It
is
undisputed
that
the
Informal
Settlements
Sub-directorate
constituted
in
terms
of
the
By-Laws,
together
with
the ward committee responsible
for
the area,
had
implemented
measures to
manage and monitor the
occupancy
of residents in the settlement area.
If
the
applicant
had resided
on
erf 4[…], his details could and would have been
verified
as monitoring took place.
[22]
What
exacerbates
the
plight of the applicant
is
the
allegation
by the
respondent that the '
...
vacant
shack
that was originally
on erf 4[…] burnt down as
it
was used by so
called
'Nyaope
boys'
who used
the
shack as
their
drug den. Another shack was later
constructed
on the erf and
is
currently occupied by an unauthorized
person.'
(My emphasis).
The
applicant does not
deny
that the initial shack
burnt
down and that another shack had been constructed
again
as alleged
by
the respondent.
[23]
The
denial that ward committee meetings were held and questionnai
r
es
disseminated is without merit. On his own version
,
the
applicant worked in Gauteng. His absence from this Province explains
why he was unaware of the meetings. He chose not to attach
affidavits
of the people he claims to have been placed by him in occupation of
erf 4[...] in order to dispute that meetings were
held. In as much as
the applicant sought to introduce the issue of the applicant's
leg
i
timate
expectation in the heads of argument only, such argument was
correctly not pursued before us and nothing needs to be said
further
on it, save for the following
.
The
applicant seeks substantive rather than procedural redress
.
He
seeks to enforce substantial rights,
ie
an
entitlement to a PTO and not any procedural rights
.
In
oral argument the applicant's counsel submitted unambiguously that
the matter should not be referred back to the decision
maker for
reconsideration based on procedural irregularities. No facts have
been presented in order to assist the applicant
,
bearing
in mind several au
t
horities.
[11]
I could not find any reason to interfere with the act
i
on
taken by the respondent
not
to grant the applicant a PTO
.
In
my view the applicant
d
i
d
no
t
a
t
t
he
t
i
me
and does not now reside on the premises in question
.
He
h
as
been exc
l
uded
in accordance with the By-Laws and Policy of the respondent.
[24]
The
rep
l
ying
affidavit is replete with instances where it is alleged
t
hat
the
r
espondent
has failed to furnish a full record.
[12]
Rule 53(1)(b) enjoins t
h
e
decision-maker
,
when
called upon to dispatch the record of proceed
i
ngs
sought to be corrected or set aside to the registrar, to present the
record togethe
r
wi
t
h
s
u
ch
reasons the decision-maker is by law required or desires to g
i
ve
o
r
m
a
k
e
a
n
d
t
o
notify the applicant accordingly. The purpose of furnishing
th
e
r
eco
r
d
w
as
explained as follows by the Constitutional Court in
Turnbull-Jackso
n
v
H
ibiscus
Coast Municipality
and
Others:
[13]
'Un
den
i
ably,
a
ru
le
53 record is an invaluable tool in the rev
i
ew
process
. It
ma
y
h
e
lp:
s
h
ed
li
ght
on what happened and why
;
give the lie
to unfounded ex pos
t
f
a
ct
o
(
a
ft
e
r
th
e fact
)
j
ustification
of the decision
under
review
;
i
n the
substantiat
i
on
o
f
as
y
e
t
n
o
t
fully
substantiated grounds of review; in giving support to the
decision-maker's
stance; and in the performance
of the
reviewing court
'
s
function
.'
[25]
In
Helen
Suzman Foundation v Judicial Service Commission
[14]
the
court observed as follows
:
'The
record enables the applicant and the court fully and properly to
assess the lawfulness of the decision-making process. It allows
an
applicant to interrogate the dec
i
sion
and, if necessary, to amend its notice of motion arid supplement its
grounds for review.'
Bearing
in mind that Rule 53(1)(b) has been enacted for the benefit of the
applicant in the review proceedings, the applicant may,
where the
record
f
urnished
appears to be incomplete, waive the requirements of the said
Rule
.
[15]
[26]
After
the record was dispatched by the respondent to the registrar, the
applicant chose not to compel the applicant to file what
he perceived
to be portions of the
r
ecord
which according to him ought to have been filed. In my view
,
h
i
s
conduct
i
s
indicative of a waiver of any other portions of the record he deemed
the
r
espondent
to have withheld. His stance can be seen from the notice termed
'N
o
ti
ce
of Motion in terms of Rule 53(4)' stating that 'the applicant stands
b
y
it
s
n
o
t
ice
of motion and the founding affidavit thereto.
'
[16]
In
confirmation of
t
h
i
s
s
t
ance
,
the
applicant annexed a copy of his founding affidavit, withou
t
any
amendments, to this notice. I cannot therefore foul the respondent
he
r
e
in
as
th
e
app
l
icant
made his choice.
[27]
In
my
view, the respondent's decision not to grant the app
l
icant
a PTO
i
n
r
es
p
ect
of erf 4[...] cannot be assailed on the available evidence
.
The app
li
can
t
h
as
f
a
i
led
to show that he was resident on the site as requ
ir
ed
b
y t
he
respondent's By-Laws and Policy. I accordingly find that the
applican
t h
as
no
t m
ade
out a case for the relief sought.
[28]
Th
e
applicant's counsel submitted that if the court was not prepared
t
o
grant
a
n
o
rd
e
r
in favour of
the applicant, the Biowatch-principle
should be
app
li
e
d
as
th
e
dispute
relates to the applicant's constitutional rights. Consequently, he
should not be burdened with a costs order in such a case.
The
respondent's counsel submitted that merely labelling the litigation
as constitutional is not enough
to
invoke the
Biowatch-principle. He submitted that the applicant did not
raise
a
constitutional issue, alternatively the general rule shall not be
applied in so
far
as the
application was frivolous and/or manifestly inappropriate. I agree
that
the
costs
should follow the result.
[29]
Accordingly,
the following
order is made:
1.
The
application is dismissed with costs.
P.E.
MOLITSOANE, J
I
concur
J.P.
DAFFUE, J
For
the Applicant:
Adv.
L Bomela
Instructed
by:
Bomela
Attorneys
BLOEMFONTEIN
For
the Respondent:
Adv.
LJB Moeng
Instructed
by
:
PH
Attorneys
BLOEMFONTEIN
[1]
(20264
/
2014)
[2015] ZASCA
97
;
2016
(6)
SA
540
(SCA)
(1 June
2015)
para 10.
[2]
2013
(1) SA 170
(SCA)
para
12.
[3]
Para
5.4 of the Foun
d
ing
Affi
da
vit.
[4]
Oudekraal
Esta
t
es
(Pty) Ltd v C
i
ty
o
f
Ca
p
e
Town
and Oth
e
rs
200
4
(
6
)
S
A
22
2
para
2
6
.
[5]
CCT
186/15
[2016] ZACC; 2
0
1
7
(
5
)
BCLR
604
(
CC)
(2
1
Dec
em
ber
2
0
1
6
).
[6]
Ibid
para
26
for
the
dissenting
judgment
of
Froneman
J
.
[7]
Ibid
paras
9
&
10.
[8]
Replying
affidavit para 4.7
,
p
47.
[9]
Repl
ying
affidavit
paras
4.69-4.
71
.
[10]
Replying
affidavit
paras
8
.
2
& 8.3 in response to para 13.2 of the answering
affidavit.
[11]
Residents
of Joe Slovo Community, Weste
r
n
Cape v Thube
li
s
h
a
Homes
2
0
10
(3) SA 454
(CC) paras 305 & 306;
South
African Veterinary Cou
n
c
il
v
Szyma
n
sk
i
2
00
3
(
4
)
S
A
42 (SCA)
p
ara
15
.
[12]
Paras
4.5; 4.14
;
4.1
6
;
4
.
1
7
;
4.2
1-
4
.
2
6
;
4
.31-4.35
;
4.3
7
;
4.5
7-
4
.58
an
d
4.
60.
[13]
2014
(6) SA 592
(CC)
p
ara
3
7
.
[14]
201
8
(4)
SA
1
(CC)
at
p
ara
13.
[15]
Motaung
v
Mukube
l
a
a
n
d
A
n
o
th
e
r
,
NN.
O.
;
Motaun
g
v
Mot
h
i
b
a
NO.
19
7
5
(
1
)
SA
6
1
8
at
625 H.
[16]
Rec
o
rd
p 134
.