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[2024] ZAKZPHC 61
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Dada v Commission of Restitution of Land Rights and Others (9888/2023P) [2024] ZAKZPHC 61 (1 August 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
9888/2023P
In
the matter between:
MONGEZI
GIBSON DADA
FIRST APPLICANT
and
COMMISSION
OF RESTITUTION OF LAND RIGHTS FIRST RESPONDENT
SIFISO
NDLOVU
SECOND RESPONDENT
PHAKAMANI
ZULU
THIRD RESPONDENT
FODO
MIRRIMAN DADA
FOURTH RESPONDENT
Coram:
Mossop J
Heard:
1 August 2024
Delivered:
1 August 2024
ORDER
The
following order is granted
:
1.
The application is adjourned sine die to
permit service of the application on the fourth respondent.
2.
Upon the fourth respondent being
properly served, he shall be entitled to deliver an answering
affidavit within the time period
provided for in the Uniform Rules of
Court.
3.
In the event of an answering affidavit
being delivered by the fourth respondent, the applicant shall be
entitled to deliver a further
replying affidavit dealing with the
allegations raised in the fourth respondent’s answering
affidavit within the time period
contemplated by the Uniform Rules of
Court.
4.
Today’s costs are reserved for
later determination.
JUDGMENT
MOSSOP
J
:
[1]
This is an ex tempore judgment.
[2]
The applicant seeks a rule nisi that the
nomination of the fourth respondent as the representative of the Dada
family (the Dada
family) be set aside and that the fourth
respondent’s subsequent election as the representative of the
family be declared
invalid. The setting aside of the nomination is to
operate as an interim order pending the return date of the rule
sought.
[3]
The application was brought as an urgent
application to be heard on 16 October 2023. From the founding papers,
the first respondent
is the Commission for the Restitution of Land
Rights and the second and third respondents are its employees. The
fourth respondent
is the person whose nomination and election is
sought to be set aside.
[4]
The application has its origin in a
relatively ancient land claim instituted by a Mr Mzongwana Walker
Wallace Dada on behalf of
the Dada family in December 1998. In
opposing this application, the first to third respondents have
objected to the jurisdiction
of this court and submit that this
application should have served before the Land Claims Court, which
has exclusive jurisdiction
on land claims matters. For the reasons
that follow, I do not believe that I should enter into that debate at
the moment.
[5]
The Dada family land claim has been
accepted as valid by the first respondent. It appears that the Dada
family elected to receive
financial compensation rather than the
restoration of the land to which the restitution claim itself
related. That being the case,
one may wonder what this application is
all about, for the land claim has been successful and is about the be
paid out.
[6]
The pay-out is the problem. The problem
is money. The applicant contends that on an undisclosed date in the
past, the first respondent
(the precise identity of the person who
made the statement to him is not disclosed) allegedly said to the
applicant that the value
of the land for which compensation would be
paid was approximately R9 million. Nothing in this regard, however,
was reduced to
writing. When the first respondent ultimately
delivered a written offer to the Dada family, it offered compensation
in the amount
of R2,9 million. The applicant was dissatisfied with
this offer based upon what he had allegedly been told in the past and
commenced
this application.
[7]
It appears that the applicant is the
only member of the Dada family dissatisfied with the formal offer
made by the first respondent,
for he is the only applicant in this
application, despite referring to himself in the heading to the
application papers as the
‘first applicant’. Indeed,
whilst it is not in doubt that at some stage the applicant was the
duly nominated and appointed
Dada family representative, that appears
to have changed. Shortly prior to this application being brought, the
Dada family decided
to elect a different family representative to
represent it. The fourth respondent was the person chosen to replace
the applicant.
That decision is recorded in a series of documents,
before this court, that tends to establish that proposition. The
applicant,
however, does not acknowledge the correctness of his
replacement as Dada family representative by the fourth respondent.
[8]
The Dada family appears to be content
with the financial offer made by the first respondent and wishes to
accept it and receive
payment. The applicant opposes such payment.
[9]
At various places in the replying
affidavit, the applicant states, in differently worded forms, the
following proposition:
‘
There
is no order that the Applicant is seeking against the first to third
Respondents.’
From
this it is clear that the focus of this application is solely upon
the fourth respondent.
[10]
That notwithstanding, the first to third
respondents have opposed the application and have delivered an
answering affidavit. The
fourth respondent has, strangely, remained
mute throughout this application. He did not enter an appearance to
defend nor did he
deliver an answering affidavit. Because of this,
the applicant submits that he is entitled to his order against the
fourth respondent
by default because, on his own version, he does not
seek any relief against the other respondents and their opposition is
therefore
irrelevant.
[11]
The muteness of the fourth respondent is
explained by the fact that there is no objective evidence of the fact
that he ever received
notice of this application. This is how the
issue of service on the fourth respondent is dealt with by the
applicant in the founding
affidavit:
‘
On
or about 06 September, I wish to state to this honourable court that
the 4
th
respondent was contacted on 0[...] XXX XXXX
[number redacted] as my attorneys on recorded (sic) wanted to serve
the 4
th
respondent via email and that his address is not
clear and because of time (sic) to file this application, my
attorneys on record
could not trace the whereabouts of the 4
th
respondent to be able to serve him, and the only option to serve the
4
th
respondent is via email. During the call made on the
06 September 2023 to the 4
th
respondent he confirmed that
he does not have any email address and that we should email the
application to the 3
rd
respondent.’
[12]
I have a number of issues with this
statement:
(a)
Firstly, sight must not be lost of the
fact that the fourth respondent is not a stranger to the applicant:
he is his family member.
They share the same surname. If the
applicant did not know where the fourth respondent lived, he could
easily have acquired details
about his address from other family
members had he wished to properly serve him;
(b)
Secondly, there is no objective evidence
that the cellular telephone number mentioned by the applicant is that
of the fourth respondent.
It might be his number but it might not be.
Nothing objective has been put up to establish that this is the case;
(c)
Thirdly, while there is an averment that
the applicant’s attorneys were unable to trace the fourth
respondent, no proof of
the steps taken to trace him have been put
up. There are no tracing reports in the papers showing that the
fourth respondent was
untraceable.
(d)
Fourthly, it is not entirely clear who
allegedly made the telephone call to the fourth respondent on 6
September 2023 referred to
in the extract above. It appears to be
someone from the applicant’s attorney’s offices but there
is no outright statement
that Mr Nhlabathi, the applicant’s
legal representative, personally made that call. This morning, Mr
Nhlabathi confirmed
he did not make the telephone call and stated
that a colleague of his was the person that made the call. Thus,
whatever was allegedly
said during that call is hearsay in its nature
in the absence of a confirmatory affidavit from the person making the
call. While
Mr Nhlabathi has put up a brief confirmatory affidavit,
that is of no assistance with regard to this issue as he did not make
the
call;
(e)
Fifthly, I have difficulty in accepting
that the fourth respondent would have appointed the third respondent
to receive service
of the application papers on his behalf. The third
respondent is an employee of the first respondent. There appears to
be no connection
between the fourth respondent and the third
respondent. That such an instruction should have been given is
improbable in my view.
I cannot therefore on what is before me accept
at this stage that the fourth respondent gave instructions that the
third respondent
should be served in his stead.
[13]
A fundamental legal principle is at play
here. I accept that urgent applications may be brought on short
notice. They may even be
brought without notice where the
circumstances justify a lack of service. But this is not one of those
instances where no notice
may be given. A civilised legal system such
as ours requires that parties who are to be subjected to legal
proceedings receive
notification of the commencement of those legal
proceedings. Citizens who are at risk of having substantive orders
granted against
them, including costs orders, must be advised that
such orders will be sought. If one wishes to enter the lists, one
must give
notice of that intention to allow the party against whom
the relief is sought an opportunity to express his views on the
relief
sought.
[14]
In my view that has not occurred in this
instance. There appears to have been no attempt whatsoever at service
on the fourth respondent,
who clearly has a direct and substantial
interest in an application which seeks to upset his election as the
representative of
the Dada family.
[15]
Without even considering the merits of
the matter, I am satisfied that no relief can be granted until such
time as there has been
proper and effective service on the fourth
respondent.
[16]
On the issue of costs, Ms Cele, who
appears for the first to third respondents, very fairly agreed with
Mr Nhlabathi’s proposal
that today’s costs be reserved. I
might not have agreed to such a proposal, but Ms Cele indicated that
she would be content
with such an order.
[17]
In the circumstances, I intend
adjourning the matter sine die to permit effective service on the
fourth respondent to occur and
to allow him to fully participate in
this application.
[18]
Accordingly, I grant the following
order:
1.
The application is adjourned sine die to
permit service of the application on the fourth respondent.
2.
Upon the fourth respondent being
properly served, he shall be entitled to deliver an answering
affidavit within the time period
provided for in the Uniform Rules of
Court.
3.
In the event of an answering affidavit
being delivered by the fourth respondent, the applicant shall be
entitled to deliver a further
replying affidavit dealing with the
allegations raised in the fourth respondent’s answering
affidavit within the time period
contemplated by the Uniform Rules of
Court.
4.
Today’s costs are reserved for
later determination.
MOSSOP J
APPEARANCES
Counsel
for the applicant:
Mr
L M Nhlabathi
Instructed
by:
L
M Nhlabathi Incorporated
Mpumuza
Location
Off
Caluza Road
Emasimini
Stand 18842
Pietermaritzburg
Counsel
for the first to third respondents:
Ms
P S Cele
Instructed
by:
State
Attorney
6
th
Floor
Metlife
Building
391
Anton Lembede Street
Durban
Locally
represented by:
State
Attorney
Second
Floor
Magistrate’s
Court
302
Church Street
Pietermaritzburg