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2024
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[2024] ZALMPPHC 138
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Mogalakwena Local Municipality v Madibana and Others (9938/2024) [2024] ZALMPPHC 138 (4 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 9938/2024
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE
JUDGES: YES/NO
(3)
REVISED.
DATE:
4/10/2024
SIGNATURE:
In
the matter between:
MOGALAKWENA
LOCAL MUNICIPALITY
Applicant
and
TEBOGO
MADIBANA
First respondent
THABANG
MALULEKA
Second respondent
HEROLD
MAEBA
Third respondent
EZEKIEL
KUKUDI
Fourth respondent
REBONE
CONCERNED AND AFFECTED
Fifth respondent
COMMUNITIES
ORGANISATION
MEC:
DEPARTMENT OF AGRICULTURE AND
Sixth Respondent
RURAL
DEVELOPMENT, LIMPOPO
JUDGMENT
GAISA
AJ
INTRODUCTION
[1]
This is an urgent application brought by the Mogalakwena Local
Municipality (the applicant)
seeking interdictory relief to prevent
the first to fifth respondents from unlawfully demarcating and
allocating stands, and erecting
structures on the Remaining Extent of
the farm Steil Loop 403 LR. The applicant also seeks authorisation to
demolish unoccupied
structures and remove building materials.
[2]
The first to fifth respondents oppose the application, raising
various points in limine,
including objections regarding urgency, the
applicant’s locus standi, and the non-joinder of the alleged
unlawful occupiers
and the MEC for Cooperative Governance, Human
Settlements, and Traditional Affairs (COGHSTA). The respondents
further contend that
the application should have been brought under
the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of
1998 (PIE Act).
[3]
The matter raises significant issues about how land earmarked for
development should
be protected from unlawful occupation and the
appropriate legal processes to be followed when preventing such
occupation.
FACTUAL
BACKGROUND
[4]
The applicant, Mogalakwena Local Municipality, is the caretaker of
the Remaining Extent
of the farm Steil Loop 403 LR under a Memorandum
of Agreement concluded with the Department of Agriculture and Rural
Development,
represented by the sixth respondent. Clause 3.4 of the
Agreement mandates that the applicant ensures no unlawful occupation
occurs
on the property.
[5]
The applicant alleges that, as of August 2024, several rudimentary
structures have
been erected on the property, but no persons are
currently residing there. This assertion is supported by the
affidavit of Mr.
Ntsoane, the legal advisor to the Municipality, who
confirmed that upon inspection of the property, the structures were
found to
be uninhabited. Mr. Ntsoane’s affidavit further
details the steps taken by the Municipality to monitor the situation
and
prevent any unlawful occupation. He verifies that the
Municipality placed a public notice at a local school—an area
accessible
to the community—informing the public of the
upcoming court proceedings. Despite these efforts, no individuals
have come
forward to claim ownership of or residence in the
structures.
[6]
This evidence from Mr. Ntsoane is critical to rebutting the
respondents’ claims
that there has been unlawful occupation
since July 2024.
POINTS
IN LIMINE
[7]
The respondents raise several preliminary objections:
7.1
Urgency:
The respondents argue
that the applicant delayed bringing the application, despite knowing
about the land invasion as early as July
2024. They further argue
that there is no legal basis for a “
semi-urgent”
application, as South African law does not recognise such a concept.
7.2
Locus Standi:
The respondents argue
that the applicant, as caretaker, lacks the legal standing to
initiate these proceedings. They claim that
the applicant’s
role is limited to informing the landowner and local police of any
unlawful occupation, and only the landowner
or the police have
standing to approach the court.
7.3
Non-Joinder:
The respondents contend
that the alleged unlawful occupiers should have been joined to the
proceedings, as they have a direct interest
in the matter. They also
argue that the MEC for COGHSTA should have been joined as a party,
given that the MEC has an interest
in the orderly development of
housing in the region.
LEGAL
ANALYSIS
[8]
Urgency
8.1
The principle of urgency is governed by Rule 6(12) of the Uniform
Rules of Court. Urgency
exists when an applicant would not be able to
obtain substantial redress if the matter were heard in the ordinary
course. In this
case, the applicant seeks to prevent imminent
unlawful occupation of land that would complicate future eviction
processes, delay
development, and lead to significant financial and
administrative burdens.
8.2.
The respondents argue that the applicant delayed bringing this
application and that “
semi-urgency”
is not recognised in law. While it is true that the Rules of Court do
not recognise “
semi-urgency”
as a legal concept, the court must assess each case on its facts to
determine whether urgency exists. In
East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd
[1]
the court noted that urgency must be determined based on the harm
that would result if the relief is not granted.
8.3.
In the present case, Mr. Ntsoane’s affidavit confirms that the
structures erected on the
property are uninhabited and that the
purpose of this application is to prevent unlawful occupation before
it occurs. Although
the applicant did not act immediately upon the
erection of the structures in July 2024, the applicant has monitored
the situation
and only approached the court when it became apparent
that unlawful occupation was imminent.
8.4.
In
Nelson
Mandela Metropolitan Municipality v Greyvenouw CC
[2]
the court held that urgency is not solely determined by the speed
with which a party approaches the court but also by the nature
of the
relief sought and the potential harm to the applicant. Given that
allowing occupation would complicate future eviction processes
and
delay the development plans, the court finds that the urgency of the
matter is sufficiently established.
[9]
Locus Standi
9.1.
The respondents argue that the applicant lacks locus standi because
it is merely a caretaker
of the property. However, as highlighted in
the Caretaker Agreement, clause 3.4 specifically tasks the applicant
with ensuring
no unlawful occupation occurs. This duty is not limited
to notifying the landowner and the police, as the respondents
suggest,
but also involves actively preventing unlawful occupation.
9.2.
In
Beinash
v Wixley
[3]
the court emphasized that a party has legal standing when they have a
direct and substantial interest in the outcome of the litigation.
In
this case, the applicant, as caretaker, is directly responsible for
managing the property and preventing unlawful occupation,
which gives
it both the legal standing and the obligation to seek court
intervention.
[10]
Non-Joinder
10.1. The
respondents contend that the alleged unlawful occupiers and the MEC
for COGHSTA should have been joined to
the proceedings. The court
must therefore apply the test for joinder: whether a party has a
direct and substantial interest in
the subject matter of the
litigation.
[4]
10.2. Alleged
Unlawful Occupiers
10.2.1.
The affidavit of Mr. Ntsoane is critical in addressing
the issue of
non-joinder. He confirms that, based on inspections, no individuals
are currently residing in the structures on the
property. Despite the
fifth respondent’s claims of unlawful occupation, no names or
affidavits from these alleged occupiers
have been provided by it. The
respondents have failed to identify any individuals who would have a
direct and substantial interest
in the outcome of these proceedings.
10.2.2.
Furthermore, the applicant placed a public notice at a
local school,
informing the community about the proceedings. No individuals have
come forward to claim an interest in the property,
further
undermining the respondents’ argument that there are
identifiable unlawful occupiers who should have been joined.
10.2.3.
In
Judicial
Service Commission v Cape Bar Council
[5]
the court held that joinder is not necessary if the outcome of the
litigation does not directly affect the absent party’s
legal
rights. Since no individuals have been identified as residing in the
structures, the court can make an effective order without
their
joinder.
10.3.
MEC
for COGHSTA
10.3.1.
The respondents argue that the MEC for COGHSTA should have
been
joined due to its interest in housing and land issues in the region.
However, the role of the MEC in this matter is indirect.
The primary
dispute concerns the prevention of unlawful occupation, and the
applicant’s role as caretaker does not necessitate
the
involvement of the MEC. In
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
[6]
the court held that an indirect interest in the matter does not
require joinder.
10.3.2
Therefore, the non-joinder of the MEC does not prevent
the court from
granting effective relief.
10.4
Conclusion on Non-Joinder
Based on the evidence
provided by Mr. Ntsoane and the applicant’s reasonable efforts
to notify potential interested parties,
the failure to join the
alleged unlawful occupiers and the MEC for COGHSTA does not affect
the validity of these proceedings and
the order of this court. The
applicant has taken reasonable steps to ensure that any interested
parties were informed, and no prejudice
arises from the non-joinder.
CONCLUSION
[11]
The court finds that the applicant has successfully established the
requisite urgency and demonstrated
its legal standing to bring this
application. The respondents’ claims of unlawful occupation
have not been substantiated,
and no specific individuals have been
identified as having a direct and substantial interest in the
proceedings. The affidavit
of Mr. Ntsoane, the legal advisor for the
Municipality, confirms that the structures on the property are
uninhabited, and the applicant
seeks to prevent future unlawful
occupation.
[12]
The non-joinder of the alleged unlawful occupiers and the MEC for
Cooperative Governance, Human
Settlements, and Traditional Affairs
(COGHSTA) does not render the application defective, as their
involvement is not necessary
to resolve the dispute. The court is
satisfied that no party’s substantial legal rights are
prejudiced by their exclusion.
[13]
Accordingly, the application should be granted on an urgent basis,
and the requested interdictory
relief is appropriate to protect the
applicant’s interests and prevent future unlawful occupation of
the property.
ORDER
1.
The matter is enrolled as an urgent application in terms of Rule
6(12) of the
Uniform Rules of Court.
2.
The first to fifth respondents are interdicted and restrained from:
2.1
Unlawfully demarcating and allocating stands on the Remaining Extent
of the farm Steil Loop
403 LR; and
2.2
Erecting any structures or allowing any occupation on the said
property.
3.
The applicant is authorised to demolish and remove unoccupied
structures and
building materials from the Remaining Extent of the
farm Steil Loop 403 LR. The applicant is to retain the materials for
collection
by their owners, if claimed.
4.
The fifth respondent is ordered to pay the costs of this application
on a party-
and-party scale, including the costs of
one counsel on
Scale B.
GAISA
N
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
FOR
THE APPLICANT
: Adv J O Williams SC
EMAIL
:
williams@rsabar.com
: Adv J B W Mouton
EMAIL
:
jbwmouton@gmail.com
: M. T Ramabala Attorneys
EMAIL
:
admin@mtramabala.co.za
FOR
THE 5
TH
RESPONDENT
: Adv. Shadrack Tebeila
EMAIL
:
tebeiless@gmail.com
: ML Shoba Attorneys
EMAIL
:
mlshobaattorneys@gmail.com
DATE
OF HEARING
: 25 September 2024
DATE
OF JUDGEMENT
: 4 October 2024
This
judgment is handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 4 OCTOBER 2024.
[1]
(2011)
JOL 28244 (GSJ)
[2]
2004
(2) SA 81 (SECLD)
[3]
1997
(3) SA 721 (SCA)
[4]
Amalgamated
Engineering Union v Minister of Labour
1949
(3) SA 637 (A)
[5]
[2012]
ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013]
1 All SA 40 (SCA)
[6]
[2010]
ZACC 26
;
2011 (4) SA 113
(CC) ;
2011 (3) BCLR 229
(CC)