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2024
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[2024] ZAMPMBHC 80
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Lubisi t/a Ngceshe Farming v Nkosi and Others (5558/2024) [2024] ZAMPMBHC 80 (13 November 2024)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 5558 / 2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE
13 November 2024
SIGNATURE
In the matter between:
JOHN
MANDLA LUBISI
APPLICANT
T/A
NGCESHE FARMING
And
ZWELAKHE XOLANI
NKOSI FIRST
RESPONDENT
TITANDI TWALA
SECOND
RESPONDENT
UNKNOWN
ILLEGAL INVADERS
THIRD
RESPONDENT
OF
STAND NO. 6743-B, KANYAMAZANE
1214
STATION
COMMANDER FOURTH
RESPONDENT
KANYAMAZANE
POLICE STSTION
PROVINCIAL
POLICE COMMISSIONER
FIFTH RESPONDENT
MPUMALANGA
THE
CITY OF MBOMBELA
SIXTH RESPONDENT
JUDGMENT
RATSHIBVUMO ADJP:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be on 13 November
2024 at 08H00.
[1]
Introduction
This is an urgent
application whereby the Applicant seeks an order dispensing with the
forms and service provided for in the Uniform
Rules, and disposing of
this matter in such a manner and in accordance with the procedure in
terms of Rule 6(12) of the Uniform
Rules. The Applicant further seeks
an order to the effect that pending the final determination of the
application on the return
date, the First, Second and Third
Respondents,
1.1
“
The First Second and Third
Respondents are interdicted and restrained from attending to the
property known as Kanyamazane, 1214,
Mpumalanga Province (the
property).
1.2
The First Second and Third Respondents
forthwith return and/or restore full possession of the property to
the Applicant.
1.3
That the First Second and Third Respondents
(personally and/or through any other person) are interdicted and
restraint from:
1.3.1
Preventing, restricting and
obstructing in any way the Applicant, his family members and/or
employees, contractors or visitors and/or
any other person who may
have legal cause to work at, or to enter, or leave the property.
1.3.2
Invading and/or causing to invade and/or
occupying and/or causing to occupy and/or demarcating land situated
at the property.
1.3.3
Building, constructing or delivering any
building material to the property.
1.3.4
Removing any form of hindrance, which
obstructs persons referred to in paragraph 1.3.1 above, to work at or
enter or leave the property
(sic).
1.3.5
Interfering with the activities of any of
the persons as referred to in paragraph 1.3.1 above, and the farming
and tourism operations
of the Applicant in general.
1.3.6
Threatening intimidating and assaulting the
persons referred to in paragraph 1.3.1 above in any way whatsoever.
1.3.7
Barricading any of the national, provincial
or local access roads to the property.
1.3.8
Gathering within 100 meters any entrance to
the property.
1.4
That the order contained in paragraph 1.3
shall operate as rule nisi returnable on the date to be arranged with
the Registrar.
1.5
All interested parties are called upon to
show cause on the return date as to why the orders in
paragraph
1.3 above should not be made final.
1.6
The Respondents are to pay the costs of
this application, jointly and severally, the one paying, the other to
be absolved.”
[2]
Further orders sought as
per
Notice of Motion related to how the
rule
nisi
shall be served by the Sheriff on
the Respondents. These, together with the relief relating to how the
orders shall operate (
rule nisi
)
became irrelevant as the application was opposed by the Respondents
on the first day of the hearing.
[3]
Background
.
In
2011, the Applicant approached the Mpakeni Traditional Council for
purposes of obtaining permission to occupy the land, for purposes
of
farming and tourism. A land measuring 24.3 hectors was later
identified by the Mpakeni Traditional Council, at Mgwenya Trust
of
which permission was granted to the Applicant for use as business
site. Permission was granted on 29 January 2014.
[1]
The land in question is adjacent to N4 Road, between Mbombela and
Malelane – the property. The Applicant had been in occupation
of the property, trading as Ngceshe Farming, from the date the
permission was granted until 11 October 2024. For these reasons,
the
Applicant avers that he has been in lawful and undisturbed occupation
of the property for over 10 years.
[4]
The incident that caused the Applicant to
approach this court, commenced on 09 October 2024 when unknown person
entered the property
and flattened a piece of land in the property,
using a grader. Again, on 11 October 2024, a group of about six men
came and removed
the access gate to the property and chased away the
Applicant’s employees and/or family members, telling them not
to come
back to the property. The Applicant attended to the property
wherein he found the First, Second and Third Respondents in the
process
of demarcating and selling the stands to members of the
public, right in the property. According to the Applicant, the First,
Second
and Third Respondents informed him that they had permission to
invade the property from Chief Tikhontele Samson Dlamini of Lomshiya
Traditional Council, in order to protect their land. The Applicant
therefore seeks a
mandament van spolie
order against the First, Second and Third Respondents, to restore him
to
status quo ante
in
respect of the property.
[5]
In opposing the application, the First and
the Second Respondents do not deny the allegations averred by the
Applicants regarding
the incidents of 11 October 2024. They admit
their identities in the photographs taken by the Applicant when he
confronted them
at the property, although they question the date they
were taken. The First Respondent admits his interest in the land
occupied
by the Applicant and goes on to allege that he has had
disputes with the Applicant over that land since 2022. In so
alleging, he
relies on the allegations made by the Applicant of the
disputes he had with a certain ward councillor, in 2022, which I did
not
include in the background above for reason that I find them to be
irrelevant for purpose of this application. The First Respondent,
who
is not that ward councillor, goes no further than just make a
one-line allegation that he had a dispute with the Applicant
over the
property. The allegation about the 2022 dispute takes this
application nowhere.
[6]
Whereas the First and Second Respondents do
not dispute the Applicant’s allegations of the October 2024
incident, their identities
and that they were in the property when
confronted by the Applicant, or that they furnished the Applicant
with their contact details,
they surprisingly aver that the
allegations made in paragraphs 11 and 12 of the Applicant’s
founding affidavit must be referring
to other persons than them.
Paragraph 11 of the founding affidavit refers to the dispute and an
order that the Applicant secured
against a ward councillor in 2022.
Paragraph 12 however refers to the incident that took place on 11
October 2024, the encounter
the Applicant had with the First and
Second Respondents, including the taking of photographs which the two
Respondents admit that
it is them reflecting in the photos.
[7]
In
their answering affidavit, the First and Second Respondents question
the lawfulness of the Applicant’s occupation of the
property.
They are of a view that the property falls under the traditional
leadership of Lomshiya Traditional Council, and not
Mpakeni
Traditional Council. In support of this averment, the First and
Second Respondents attached a letter from Lomshiyo Traditional
Council which letter confirms that the Lomshiyo Traditional Council
made a submission to Mbombela Municipality, pleading for the
return
of Farm Sigambule 216 and Makawusi 215 back to their tribal
authority.
[2]
According to the
Lomshiyo Council, the ownership of these farms was taken from their
traditional authority when the democratic
government was installed in
South Africa. On the face value, this letter suggests that the
ownership of these farms falls under
Mbombela Municipality. What
remains uncertain is whether these farms could be located within the
property or whether the property
is located within them. The
Applicant however denies that the location of the farms is the same
as the property he occupies.
[8]
While the occupation of the property by the
Applicant is not disputed by the First and Second Respondents, they
question how he
came to be in its possession, suggesting that he was
in illegal occupation of the land. They raise a point
in
limine
on why the Mpakeni Traditional
Council was not joined as a party to the proceedings saying, it is an
interested party in the outcome
of the application. They also
question why the City of Mbombela was joined as a respondent while it
has no interest in the outcome
of the application. For those reasons,
the First and Second Respondents submit that the application should
be dismissed with costs.
[9]
The law.
Mandament
van spolie
is often described as a
possessory remedy.
“
The
mandament van spolie
is
a possessory remedy (
remedium
possessorium
). The essential
characteristic of a possessory remedy is that the legal process
whereby the possession of a party is protected
(
iudicium
possessorium
), is kept strictly
separate from the process whereby a party’s right to ownership
or other right to the property in dispute,
is determined (
iudicium
petitorium
). The object of the order
is:
‘
[M]erely
to restore the
status quo ante
the
illegal action. It decides no rights of ownership; it secures only
that if such decision be required, it shall be given by a
court of
law, and not affected by violence. If before the spoliation either
party needed a legal decision to establish his rights,
he requires it
just as much after, as before, the order. He is in no better, and not
worse, position than he was before the spoliation.
There is
consequently nothing inherent in a
mandament
van spolie
which demands that it should
be conditioned as being granted
pendente
lite
’
The
reason behind the practice of granting spoliation orders is that no
man is allowed to take the law into his own hands, and to
dispossess
another illicitly of possession of property. This applies equally
whether the despoiler is an individual or a government
entity or
functionary. If he does so, the court will summarily restore the
status
quo ante
,
and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute. The rule is
spoliatus
ante omnia restituendus est
..”
[3]
[10]
A
court hearing a spoliation application does not concern itself with
the rights of the parties (whatever they may have been) before
the
spoliation took place; it merely inquires whether there has been a
spoliation, and if there has been, it restores the
status
quo ante
.
In spoliation proceedings the court will, therefore, neither enter
into the lawfulness of the applicant’s possession, nor
into the
question of ownership of the property. The court will not even
consider any claim in reconvention, such as a claim for
a declaratory
order on the respondent’s rights to the property.
[4]
[11]
In
order to obtain a spoliation order two allegations must be made and
proved to wit, the applicant was in possession of the property;
and
that the respondent deprived him of the possession forcibly or
wrongfully against his consent. The very essence of the remedy
against spoliation is that the possession enjoyed by the party who
asks for the spoliation order must be established. In spoliation
proceedings the court is not concerned with the lawfulness of the
applicant’s possession. In other words, the applicant must
show
not that he was entitled to be in possession, but that he was in
de
facto
possession at the time of being despoiled.
[5]
[12]
It
is therefore trite that in spoliation proceedings the legal
entitlement to the property is irrelevant. The Applicant merely needs
to prove undisturbed possession thereof even when he/she is not an
owner or legally entitled to such possession. Thus, in
Yeko
v Qana
[6]
Van Blerk JA remarked that even a thief can in some circumstances
successfully obtain a spoliation order in respect of the stolen
property
.
That matter was a spoliation application involving a landlord who
locked out the tenant from trading in a shop that he rented.
The
court of appeal confirmed the spoliation order despite the fact that
the tenant was operating the shop without the trading
license. The
court of appeal had this to say,
“
[T]he
very essence of the remedy against spoliation is that the possession
enjoyed by the party who asks for the spoliation order
must be
established. As has so often been said by our Courts the possession
which must be proved is not possession in the
juridical sense;
it may be enough if the holding by the applicant was with the
intention of securing some benefit for himself.
In order to obtain a
spoliation order the
onus
is on the applicant to prove the required possession, and that he was
unlawfully deprived of such possession. As the appellant
admits that
he locked the building it was only the possession that respondent was
required to establish. If the respondent was
in possession the
appellant's conduct amounted to self-help. He was admittedly in
occupation of the building with the intention
of selling his stock
for his own benefit. Whether this occupation was acquired secretly,
as appellant alleged, or even fraudulently
is not the enquiry. For,
as
Voet
,
41.2.16, says, the injustice of the possession of the
person despoiled is irrelevant as he is entitled to a spoliation
order
even if he is a thief or a robber. The fundamental principle of
the remedy is that no one is allowed to take the law into his own
hands. All that the
spoliatus
has to prove, is possession of a kind which warrants the protection
accorded by the remedy, and that he was unlawfully ousted.
”
[7]
[13]
Discussion.
The court does not have
to concern itself with the question on whether the Applicant’s
acquisition of the property was legal
or not. If the lawfulness of
his occupation of the property is in doubt, the Mpakeni Traditional
Council is within its rights to
challenge it, provided the property
is within its area of authority. This is however not that
application. If the ownership of
the property lies with the sixth
Respondent, it is also within the rights of City of Mbombela to evict
the Applicant, if it so
wishes; provided it is the owner. Lomshiyo
Traditional Council does not claim to be the owner of the property;
but has made submissions
to Mbombela Municipality with the hope that
ownership thereof (of Farm Sigambule 216 and Makawusi 215) shall one
day revert to
it like it once did in the past. The Applicant however
believes that the area being claimed by Lomshiyo Traditional Council
from
the municipality is different to the area incorporating the
property.
[14]
It is therefore clear that for the
spoliation application to be successful, an applicant merely has to
show undisturbed possession
of a property and that he/she was
unlawfully dispossessed of its possession. The identity of the
dispossessor or his/her rights
over the property is immaterial as the
order can also be made against the property owner who takes the law
into his/her own hands.
Thus, even if the dispossession was done by
Lomshiyo Traditional Council itself, and presuming that it is the
owner of the property,
considering the ownership rights would be
irrelevant for determining whether to grant the spoliation order.
[15]
I
do not find any merit to the point raised
in
limine
to the effect that the Applicant’s failure to join Mpakeni
Traditional Council as a party is a non-joinder. The substantial
test
for non-joinder is whether the party that is alleged to be a
necessary party for purposes of joinder has a legal interest
in the
subject-matter of the litigation, which may be affected prejudicially
by the judgment of the court in the proceedings concerned.
[8]
It is not Mpakeni Traditional Council who dispossessed the Applicant
of his possession of the property and no order is sought against
it.
In fact, from the annexures attached to the founding affidavit, it
would appear, the Mpakeni Traditional Council supports the
Applicant’s application as it is the ones who gave him the
right to occupy the property. The granting or refusal of the
spoliation application does not confer any more rights to Mpakeni
Traditional Council, than it already has, over the property or
the
surrounding land. The prejudice it stands to suffer as a result of
the alleged non-joinder has not been fully demonstrated.
[16]
Equally,
there is no merit in the argument that the joinder of the Sixth
Respondent is a misjoinder. After the application papers
were served
on it, the Sixth Respondent took no issues with being joined in this
motion. Moreover, the Applicant made it clear
in the founding
affidavit that the Sixth Respondent was cited for the reason that it
is its responsibility to stop the mushrooming
of illegal townships.
If there was any doubt about the interests of the Sixth Respondent,
it is laid to rest by the fact that Lomshiyo
Traditional Council, on
whose mandate the First, Second and Third Respondent claim to
operate, alleges that the ownership of the
disputed piece of land
lies with the Sixth Respondent.
[9]
[17]
The Applicant’s undisturbed
possession of the property for over a decade has not been disputed as
much as the dispossession
thereof was not seriously contended. Issues
raised by the First and Second Respondent are no legal defences to
the spoliation claim.
The application to restore the Applicant to the
status quo ante
must therefore be allowed. Equally, there is no reason advanced why
costs should not follow cause.
[18]
The order:
For
the aforesaid reasons, I make the following order:
18.1
The Respondents are interdicted and
restrained from attending to the property known as Kanyamazane, 1214,
Mpumalanga Province (the
property).
18.2
The First, Second and Third
Respondents forthwith return and/or restore full possession of the
property to the Applicant.
18.3
That the First, Second and Third
Respondents (personally and/or through any other person) are
interdicted and restraint from:
18.3.1
Preventing,
restricting and obstructing in any way the Applicant, his family
members and/or employees, contractors or visitors and/or
any other
person who may have legal cause to work at, or to enter, or leave the
property.
18.3.2
Invading and/or causing to invade and/or
occupying and/or causing to occupy and/or demarcating land situated
at the property.
18.3.3
Building, constructing or delivering any
building material to the property.
18.3.4
Hindering or obstructing persons referred
to in paragraph 18.3.1 above, to work at or enter or leave the
property.
18.3.5
Interfering with the activities of any of
the persons as referred to in paragraph 18.3.1 above, and the farming
and tourism operations
of the Applicant in general.
18.3.6
Threatening intimidating and assaulting the
persons referred to in paragraph 18.3.1 above in any way whatsoever.
18.3.7
Barricading any of the national, provincial
or local access roads to the property.
18.3.8
Gathering within 100 meters any entrance to
the property.
18.4
The Sheriff of the court or his
appointed Deputy is authorized to do or cause to be done anything
that may be necessary to give
effect to this order, including but not
limited to appointing contractors and/or obtaining the assistance of
the South African
Police Services (the Fourth and Fifth
Respondents) to enforce this order and to remove any form of
hindrance, which obstructs
the Applicant and the persons referred to
in paragraph 18.3.1 above from accessing, exciting the property or
performing their duties
therein.
18.5
The Sheriff of the court or his appointed
Deputy is further authorized to prevent any construction of
structures and/or shacks from
taking place at the property and
prevent any building materials from being delivered to the property.
18.6
The First, Second and Third Respondents are
ordered to pay the costs of this application, jointly and severally,
the one paying,
the other to be absolved, on scale A.
TV RATSHIBVUMO
ACTING DEPUTY JUDGE
PRESIDENT
MPUMALANGA
FOR
THE APPLICANT:
ADV.
KW VAN HEERDEN
INSTRUCTED
BY:
COMBRINK
GREYLING ATT INC
MBOMBELA
FOR
THE
1
ST
, 2
ND
& 3
RD
RESPONDENTS
ADV.
R SEGAGE
INSTRUCTED
BY:
MP
MASEKO ATTORNEYS
MBOMBELA
DATE
HEARD:
05
NOVEMBER 2024
JUDGMENT
DELIVERED:
13
NOVEMBER 2024
[1]
See p. 41 of the paginated bundle, a letter by the Mpakeni
Traditional Council dated 14 January 2014, with date stamp of 29
January 2014.
[2]
See p. 90 of the paginated bundle,
[3]
See Erasmus: Superior Court Practice/Volume 2: Uniform Rules and
Appendices: D7. See also
Microsure
(Pty) Ltd v Net 1 Applied Technologies South Africa Ltd
2010
(2) SA 59
(N) 63H–I;
Jigger
Properties CC v Maynard NO
2017
(4) SA 569
(KZP) at 574E–H.
[4]
Erasmus: Superior Court Practice
supra
and
Ngqukumba
v Minister of Safety and
Security
2014 (5) SA 112
(CC) at 117D,
Schubart Park Residents’
Association v City of Tshwane Metropolitan Municipality
2013 (1)
SA 323
(CC) at 331A, and
Lottering v Palm
2008 (2) SA 553
(D)
at 555H–I.
[5]
See
Le
Riche v PSP Properties CC
2005
(3) SA 189
(C) at 193G).
[6]
1973
(4) SA 735
(A) at p. 739G
[7]
Yeko
v Qana supra
at
739D-G
.
[8]
See
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
2005
(4) SA 212
(SCA) para 64–66.
[9]
See p. 90 of the paginated bundle,