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[2024] ZAECMKHC 129
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Grahamstown Brick (Proprietary) Limited t/a Makana Brick v Makana Municipality and Others (2831/2023) [2024] ZAECMKHC 129 (14 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 2831/2023
Date
Heard: 23 August 2024
Date
Delivered: 14 November 2024
In
the matter between:
GRAHAMSTOWN
BRICK (PROPRIETARY)
APPLICANT
LIMITED
Trading as MAKANA BRICK
and
MAKANA
MUNICIPALITY
FIRST RESPONDENT
THE
MUNICIPAL MANAGER OF MAKANA
SECOND
RESPONDENT
MUNICIPALITY
NOMINE OFFICIO
THE
EXECUTIVE MAYOR OF MAKANA
THIRD RESPONDENT
MUNICIPALITY
NOMINE OFFICIO
JUDGMENT
MULLINS
AJ:
[1]
The Applicant, Grahamstown Brick (Pty) Ltd, trading as Makana Brick,
launched this
application on 17 August 2023. To date, despite a
notice of opposition having been filed on 28 August 2023, the
Respondents,
the Makana Municipality, its Municipal Manager and its
Executive Mayor, the latter two being cited in their official
capacities,
have not filed any answering affidavits.
[2]
On the contrary, they have employed numerous stratagems to avoid
having to deal with
the matter, which approach continued before me,
which I deal with below.
[3]
The Applicant describes itself as the largest manufacturer of clay
bricks between
Cape Town and Durban, which it markets throughout the
country. It employs over 2100 employees. Its principal place of
business,
and the location of its factory, is situated at Mayfield
Cemetery Road, Beaconsfield Farm, which property it owns. The
Applicant’s
premises are situated within the jurisdiction of
the First Respondent
.
[4]
The application has its genesis based on the following factual
matrix:
(a)
In order to get to the Applicant’s premises it is necessary to
drive through a property
known as Mayfield Farm, which property is
either owned by the First Respondent or, at the very least, over
which it has jurisdiction
and in respect of which it exercises direct
control, which it has done so since long before this dispute began;
(b)
Going back many years, on a certain section of Mayfield Farm an
informal settlement sprung
up, through which informal settlement the
Applicant’s trucks, not to mention its employees, have to
travel on a daily basis.
This informal settlement amounted to
the unlawful occupation of the land in question;
(c)
The settlement posed a risk to the Applicant’s operations and
its employees
and, in addition, there was a risk to the residents of
the informal settlement in that huge trucks continually traverse the
road
going to and from the Applicant’s brick making factory;
(d)
During 2001 negotiations ensued between the Applicant and the First
Respondent which did
not resolve the problem. In the result,
the Applicant threatened legal action;
(e)
Before that could happen the First Respondent took the necessary
steps to obtain a court
order, presumably an eviction, and the area
was cleared of unlawful occupiers, which occurred during 2002;
[1]
(f)
During 2014 the Applicant noticed that the First Respondent was
taking steps
to develop a portion of Mayfield Farm, which borders on
Mayfield Cemetery Road. This prompted a letter from the
Applicant’s
attorney, the purpose of which was to enquire
whether the land was properly zoned for urban development and whether
adequate precautions
would be taken to safeguard the persons who
would be occupying the development;
(g)
With regard to the second issue it was pointed out that,
inter
alia
, 116 light vehicles and 20 heavy vehicles (trucks) utilize
the road every day, going back and forth. At the very least the
Applicant required that the road be tarred and a fence or barrier
between the road and the development be erected;
(h)
For reasons unknown the development never materialized;
(i)
However, during 2018 a mass informal invasion commenced with “plots”
being demarcated and structures being built. For reasons
unknown the development is known as “Ghost Town”.
This prompted further correspondence in which a demand was made that
the First Respondent address the problem;
(j)
There was tension between the occupants of the land due to the
enormous amount
of dust that the Applicant’s trucks caused and
a perception (apparently communicated by a municipal officer) that
the Applicant
was responsible for service delivery to the unlawful
occupants of the land. The road has been blockaded on occasion,
making
it impassible;
(k)
The First Respondent failed to address the problem as a result of
which the Applicant
launched an application under case no. 3293/2018
for an order to compel the Respondents to,
inter alia
, remove
the unlawful occupiers and demolish the structures;
(l)
The order was granted on 20 November 2018, the Respondents being
afforded 90
days in which to comply;
(m)
Pursuant to the above the First Respondent launched an application
under case no. 2261/2019 in
accordance with either PIE or ESTA (it is
unclear from the papers which) as a result of which an order was
obtained for the eviction
of the unlawful occupiers and the
demolition of the structures;
(n)
In order to ameliorate the plight of the unlawful occupiers the
Applicant proposed a compromise,
namely that a 200 metre “
buffer
zone
”
be
established on either side of Cemetery Road, together with
certain other provision (which it is not necessary to specify),
which
buffer zone would be kept clear of structures;
[2]
(o)
This resulted in the conclusion of a Memorandum of Agreement (“MOA”),
dated
17 August 2020, which was signed by the Applicant and the then
Municipal Manager on behalf of the First Respondent. The
following
is what was agreed:
“
1.
The municipality and Makana Brick have agreed to allow persons to
occupy Mayfield Farm
save for a buffer zone along the main road
between Makhanda and Makana Brick, which is described in the diagram
attached hereto
and marked annexure “B”.
2.
Persons shall, in accordance with this agreement, and subject to
amendment of
the Court order by the Honourable Court, have the right
to continue to occupy that portion of Mayfield Farm that is not
reflected
in the attached buffer zone, relevant to this agreement.
3.
The buffer zone has been surveyed by Mr K van Niekerk, a professional
land surveyor,
and the boundary thereof has been demarcated by large
rocks, painted white, and which have been placed on the boundary
every 100
metres to indicate the buffer line, (as reflected in
annexure “B” hereto).
4.
The municipality shall approach the Honourable Court to have annexure
“A”
amended and to obtain the necessary interdict as
described in paragraph 4 of the order, as amended by annexure “B”
hereto, within 90 days of the signing of this agreement and shall do
what is necessary to give notice to the occupants of Mayfield
Farm
and as directed by the Honourable Court.
5.
The Municipality will pay the costs of the application to amend and
the costs
of giving notice to the occupiers of Mayfield Farm.
6.
The parties shall each pay their own costs of the preparation and
execution of
this agreement.”
(p)
Despite having undertaken to obtain an amended court order reflecting
the terms of the MOA
the First Respondent failed to do so as a result
of which the Applicant eventually attended thereto, which was done by
way of a
chamber book application;
(q)
Unfortunately, the MOA did not solve the problem and unlawful
occupations within the buffer
zone continued unabated. In
response to a demand that it enforce the terms of the court order, as
amended by the MOA, the
First Respondent decided to dig a trench to
demarcate the boundary of the buffer zone. The trench was never
completed and new occupations
within the buffer zone continued;
(r)
Eventually, on 17 August 2023 the Applicant launched this
application, praying for
the following relief:
“
1.
Directing the First, Second and Third Respondents to remove any
persons to be found
on the demarcated area
[3]
(A hereto) on Mayfield Farm, District of Grahamstown/Makhanda, in
terms of all applicable legislation within 90 (ninety) days of
the
granting of this order, alternatively, on a date so determined by
this Honourable Court.
2.
Directing the First, Second and Third Respondents to demolish any
unlawful structures
erected on the demarcated area on Mayfield Farm,
district of Grahamstown/Makhanda, in terms of all applicable
legislation, within
90 (ninety) days of the granting of this order,
alternatively, on a date so determined by the Honourable Court.
3.
Directing the First, Second and Third Respondents to remove any
materials not
belonging to the First Respondent found at or near the
demarcated area on Mayfield Farm, district of Grahamstown/Makhanda,
in terms
of all applicable legislation, including any building
materials, subject to First Respondent, keeping in safe custody for
three
(3) months of such materials until released to the lawful owner
thereof.
4.
Directing the First, Second and Third Respondents to create an
appropriate barrier
to identify the demarcated area and to prevent
occupation of the demarcated area within ninety (90) days of the
granting of this
order, alternatively, within such time deemed
appropriate by the Honourable Court, to:
4.1.
prevent the unlawful occupation, or invasion, of the demarcated area
on Mayfield Farm, by any
person(s); and
4.2.
prevent the erection, completion and/or occupation of any structure
on the demarcated area on
Mayfield Farm by any person(s).
5.
Directing that the First, Second and Third Respondents pay the costs
of this
application, jointly and severally, the one paying, the other
to be absolved.”
[5]
The matter was eventually set down before me on 22 August 2024.
Although it
had filed a notice of intention to oppose the Respondents
have never filed opposing papers.
[6]
When the matter was called on 22 August 2024 I was advised by counsel
for the Respondents
that they (the Respondents) intend to bringing an
application for a postponement and time was required in which to file
the necessary
application. As the Applicant’s counsel
advised me that the application would be opposed I stood the matter
down to
the following day.
[7]
When the matter was recalled I was presented with a founding
affidavit consisting
of 181 pages, an opposing affidavit consisting
of 28 pages and a replying affidavit consisting of a further 84
pages, with a supplementary
replying affidavit consisting of another
21 pages. In total 268 pages!
[8]
The notice of motion in the application for postponement reads as
follows:
“
1.1
That the application be postponed to a date to be arranged between
parties after the first respondent’s
council meeting scheduled
for 29 August 2024 wherein resolutions will be taken for the purpose
of enabling the filing of the Respondent’s
answering affidavit
and the following counter-applications:
1.1.1. a
self-review of the decision of the first respondent’s entering
into a memorandum of agreement with the
applicant;
1.1.2. a
self-review of the decision of the first respondent to agree to have
the memorandum of agreement dated 17 August
2020;
1.1.3. a
recission of the chamber application and subsequent court order of 15
September 2015; in the alternative
1.2.
The application be stayed pending the outcome of the abovementioned
applications to be launched.
1.3.
Costs of the application, only in the event of opposition of the
relief sought by the Respondents.
1.4.
Granting the Respondents and further and/or alternative relief that
this Honourable Court deems
fit.”
[9]
At the outset counsel for the Respondents advised me that she was
only briefed to
apply for a postponement and did not hold any
instructions in respect of the merits of the application.
[10]
The first submission was that the matter should stand down in order
for the Applicant’s
attorneys to provide proof that it had a
power of attorney to oppose the postponement application. To
this end on the previous
day (the 22
nd
) the Respondents
had filed a notice in terms of Rule 7. Needless to say the
Applicant denied that it was necessary to file
a power of attorney in
order to oppose an application for postponement.
[11]
It is not in dispute that the Applicant’s attorneys are in
possession of a power of attorney
to represent it in the main
application. Counsel for the Respondents could not explain why
it was necessary to obtain a separate
power of attorney for an issue
incidental thereto, such as an application for postponement, nor is
there an explanation.
It would result in an untenable situation
if, every time an issue incidental to the conduct of an application
(or action), a separate
power of attorney was required. I was
not referred to any law in support of the submission and had no
hesitation in rejecting
the Respondents’ challenge to the
Applicant’s attorney’s authority.
[12]
The founding affidavit in the application for postponement was
attested to by the Respondents’
attorney. There were no
confirmatory affidavits filed, apparently due to “…
the
urgency of this application and circumstances beyond
[my]
control.”
Which is odd, because in order to bring
the application for postponement the attorney would have had to
consult with and
obtain instructions from the very people who, due to
the urgency, were unable to file confirmatory affidavits.
[13]
It was submitted that the application had been necessitated by the
Applicant’s unreasonable
refusal to agree to a postponement of
the matter, which request was accompanied by a tender of the wasted
costs. Furthermore,
due to the limited time in which the
Respondents had had in which prepare the application not all the
relevant facts had been placed
before the court. I pause to mention
that the first time the Applicant’s attorney had been advised
that a postponement was
required was on 16 August 2024, the reason
given being that the matter was to be considered by the First
Respondent’s municipal
council on 29 August 2024. It is
thus not surprising that the Applicant refused to simply agree.
[14]
The bottom line, and it pervades the entire application, is that the
postponement was necessitated
by the Respondents’ own
dilatoriness. They have had a year in which to deal with the
matter properly, but its officials
appear to have sat on their hands
and done nothing other than hold meeting after meeting.
[15]
It is relevant that the notice of set down, dated 22 April 2024, was
served on the Respondents’
local attorney on 10 April 2024,
along with the Applicant’s heads of argument. That was
four months prior to the date
upon which the matter was to be heard.
That the Respondents’ legal representatives were alive to the
need to take action
is evidenced by the exchange of correspondence
between the First Respondent’s attorney and its officials,
which correspondence
is attached to the founding affidavit.
Thus:
(a)
On 16 July 2024 the attorney sent an email to various officials and,
with reference to the
outcome of an inspection-in-loco
,
which
was held on 31 October
2023
(my emphasis), stated:
“
It’s
imperative that same be addressed as an answering affidavit still has
to be filed to protect the interests of the Municipality
in the
matter.”
(b)
On 1 August 2024 the attorney requested an urgent consultation
because:
“
Counsel seeks to
have the answering papers completed as soon as possible.”
(c)
The correspondence also reveals that various consultations did take
place and on 13
August 2024 the attorney records:
“
As indicated the
papers would have to be filed by Friday, 16 August 2024 before the
date of hearing on 22 August 2024.”
[16]
I pause to emphasise that these communications are attached to the
Respondent’s founding
affidavit in the application for
postponement. On the Respondents’ own version their
attorney, at least, was alive
to the fact that it was necessary to
file opposing papers.
[17]
Not surprisingly, the Applicant submitted that the application for a
postponement was dishonourable
and
mala fide
and was launched
solely for the purposes of delay. According to the Applicant’s
attorney:
“
The set down came
after a long process of engagement emanating from August 2023.”
[18]
He goes on to detail the progress (or lack thereof) of the matter:
(a)
In the absence of answering affidavits the matter was set down on 28
September 2023.
On the day of the hearing a postponement was
requested on the basis that the First Respondent had only just given
its attorney
instructions to brief counsel. A postponement to 3
October 2023 was requested. The Applicant refused to agree
thereto;
(b)
The day prior to the hearing (on 28 September 2023) the Respondents
delivered a notice in
terms of Rule 6(5)(d)(iii) in which various
legal points were raised. In the light thereof the learned
Judge postponed the
matter to 31 October 2023 and ordered the
Respondents to file their answering affidavits by 26 October 2023.
This order was
served on the Respondents’ local attorney on 9
October 2023;
(c)
No answering affidavits were filed by that date, but as the
Respondents indicated
that they intended to persist with arguing the
questions of law the matter was removed from the roll, as it had to
be placed on
the opposed roll;
(d)
On 19 February 2024 a further Rule 6(5)(d)(iii) notice was filed,
which expanded on the
original one to a certain extent.
[19]
Of relevance is the fact that a very closely related matter,
Mayfield
Clays (Pty) Ltd v Makana Local Municipality and Others
; case no.
3136/2023, has followed a very similar path. That matter was
set down on 30 July 2024. On the morning of
the hearing the
Respondents’ filed a notice in terms of Rule 6(5)(d)(iii)
raising questions of law and seeking a postponement.
Laing J
refused the postponement, heard the matter and granted an order as
prayed, which was to hold the same respondents in contempt
of court
for failing to comply with an order of court compelling them to take
steps to have the unlawful occupiers of the land
in question
removed.
[20]
Quite apart from the extreme lateness of the application, the grounds
upon which the postponement
is based are paper thin and contrived.
They are:
(a)
There is a municipal council meeting on 29 October 2024;
[4]
(b)
At the council meeting resolutions will be taken for the purpose of
enabling the filing
of:
(i)
the Respondents’ answering affidavit;
(ii)
counter-applications to self-review the conclusion of the MOA and for
a rescission
of the order making the MOA an order of court.
[21]
The first mention of a council meeting is in an email, dated 16
August 2024, in which a postponement
is requested because: “
Our
client has informed us that the application is being tabled for
consideration by council on 29 August 2024 for resolutions to
be
adopted on the way forward.”
[22]
The correspondence attached to the Respondents’ affidavit
(referred to above) makes no
mention of the need for resolutions to
be taken at a council meeting. In fact, the Respondents’
attorney repeatedly
mentions the urgent need for the filing of
answering affidavits. A self-review is nowhere referred to, nor
is an application
for rescission of the court order in terms of which
the MOA was made an order. They are after-thoughts.
[23]
I interpose to mention that the founding affidavit in the application
for postponement consists
of over a hundred pages of annexures
dealing with community meetings, reports, site meetings and the
like. The Respondents
were actively dealing with the matter,
just not doing anything about it.
[24]
Even if there was credence to basis for the postponement, there is no
explanation why the council
meeting could not have taken place ages
ago.
[25]
Finally, the council meeting, which was scheduled for 29 August 2024,
took place before the handing
down of this judgment. If
anything of relevance occurred which could have assisted the
Respondents one would have expected
an application to lead further
evidence.
[26]
I have to agree with the Applicant that the application for a
postponement is an abuse of the
process of this court and is without
merit. Instead of filing affidavits running in to hundreds of
pages in support of the
application for postponement the Respondents
would have been better served in drafting their answering affidavits
in the main application.
[27]
In the circumstances I refused the application for postponement and
ordered the First, Second
and Third Respondents to pay the costs
thereof, jointly and severally, the one paying the other to be
absolved, on an attorney
and client scale.
[28]
Which brings me to the merits of the application. I will deal
with the Rule 6(5)(d)(iii)
notice first:
(a)
The Applicant’s lack of
locus standi
to seek the
eviction of the occupiers in the demarcated area.
The Applicant does not
seek to evict the unlawful occupiers. It seeks to compel the
Respondents to do so;
(b)
The Applicant should have joined the National Government as a party
to the proceedings.
If
this should have been done it was incumbent on the Respondents to
make out a case on affidavit;
(c)
No case has been made out against the Respondents and citing them
amounts to misjoinder.
In
the application for postponement the Respondents sought time in order
for its council to pass resolutions to oppose the application
and
bring a self-review to set aside its previous actions. The
logic of this “legal” challenge is therefore not
understood;
(d)
The application does not meet the requirements of a mandamus.
The Applicant is armed
with a court order. It seeks to enforce it. There is no
merit in this point;
(e)
The Applicant does not meet the requirements of a case to compel the
Respondent to evict
the unlawful occupiers.
Apart from being in
direct contradiction with paragraph (a) above, the answer is
obvious: the Applicants seek to enforce a
court order;
(f)
No case is made out for the relief sought.
If
this is indeed the case, it is a factual issue which should have been
dealt with in an opposing affidavit. It is not a
question of
law as envisaged by the relevant rule.
[29]
In
Boxer
Superstores Mthatha and Another v Mbenya
[5]
it was
held that if a respondent relies solely on a notice in terms of the
sub-rule the allegations in the founding affidavit must
be accepted
as established facts. See also
Absa
Bank Ltd v Prochaska t/a Bianca Cara Interiors.
[6]
[30]
In the circumstances the questions of law, such as they are, are
dismissed.
[31]
The Applicant’s case is, essentially, to compel the Respondents
to comply with their legal
obligations, as reinforced by the MOA,
which was made an order of court. There is no opposition to the
application.
[32]
I am satisfied that that the Applicant has made out a case for the
relief claimed and accordingly
make an order substantially in
accordance with the notice of motion. In the circumstances it
is hereby ordered:
1.
The First, Second and Third Respondents are directed to remove any
persons to
be found on the demarcated area (annexure “A”
to the notice of motion) on Mayfield Farm, District of
Grahamstown/Makhanda,
in terms of all applicable legislation within
90 (ninety) days of the granting of this order.
2.
The First, Second and Third Respondents are directed to demolish any
unlawful
structures erected on the demarcated area on Mayfield Farm,
district of Grahamstown/Makhanda, in terms of all applicable
legislation,
within 90 (ninety) days of the granting of this order.
3.
The First, Second and Third Respondents are directed to remove any
materials
not belonging to the First Respondent found at or near the
demarcated area on Mayfield Farm, district of Grahamstown/Makhanda,
in terms of all applicable legislation, including any building
materials, subject to First Respondent keeping such materials in
safe
custody for three (3) months, or until released to the lawful owner
thereof.
4.
The First, Second and Third Respondents are directed to create an
appropriate
barrier to identify the demarcated area and to prevent
occupation of the demarcated area, within ninety (90) days of the
granting
of this order, to:
4.1.
prevent the unlawful occupation, or invasion, of the demarcated area
on Mayfield Farm, by any
person(s); and
4.2.
prevent the erection, completion and/or occupation of any structure
on the demarcated area on
Mayfield Farm by any person(s).
5.
The First, Second and Third Respondents are directed to pay the costs
of this
application, jointly and severally, the one paying, the
others to be absolved.
NJ
MULLINS
ACTING
JUDGE IN THE HIGH COURT
DATE:
APPEARANCES:
Applicant:
Adv. G Brown
Attorneys: WEELDON
RUSHMERE & COLE
119 High Street, MAKHANDA
Respondents:
Adv. A Masiza
Attorneys:
McWILLIAMS & ELLIOT INC.
152 Cape Road, Mill Park
GQEBERHA
c/o N N DULLABH & CO
5 Bertram Street
MAKHANDA
[1]
I assume that due to the lapse of time the court
order is no longer
available.
[2]
This confirms the adage that no good deed ever
goes unpunished.
[3]
The buffer zone.
[4]
That date has come and gone.
[5]
2007 (5) SA 450
(SCA) at 452 F – G.
[6]
2009 (2) SA 512
(DC) at 514J; para [9].