Barokolagadi Communal Property Association v Mosele and Others (526/10) [2011] ZANWHC 18 (6 May 2011)

IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 526/10

In the matter between:

THE BAROKOLAGADI COMMUNAL

PROPERTY ASSOCIATION …...........................................................................APPLICANT

and

CHILLIBOY MOSELE …..........................................................................1ST RESPONDENT

ERNEST RAKOBANE ….........................................................................2ND RESPONDENT

SEKANTO MATLAPENG …....................................................................3RD RESPONDENT

MOSEKAPHOFU MATLAPENG ….........................................................4TH RESPONDENT

KGOROBA MOLOTSI ….........................................................................5TH RESPONDENT

BOBO MATLAPENG …...........................................................................6TH RESPONDENT

MOTHUSI MODISE …..............................................................................7TH RESPONDENT

TOI RAPOO ….........................................................................................8TH RESPONDENT

ALL INDIVIDUALS WHO UNLAWFULLY OCCUPY THE

REMAINING EXTENT OF THE FARM SEBELE 931

(LOTTERINGSKOP 115) REGISTRATION DIVISION KP

NORTH WEST PROVINCE ….................................................................9TH RESPONDENT

DATE OF HEARING : 22 APRIL 2011

DATE OF JUDGMENT : 6 MAY 2011

FOR THE APPLICANT : ADV DA SILVA SC

FOR THE RESPONDENTS : ADV SHAKOANE

JUDGMENT

LANDMAN J:

[1] This is an application for a vindicatory interdict launched by the Barokologadi Communal Property Association against eight respondents who are members of the Baphuthing ba Masimong ba go Seleka tribe and other unknown persons.

The facts

[2] Members of the Barokologadi ba ga Maotoe ba kwa tribe and members of the Baphuthing ba Masimong ba go Seleka tribes (who include the first eight respondents) claimed, in terms of the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act”), the restitution of certain property of which they had been dispossessed. The property included the remaining extent of the farm Sebele 931 (Lotteringskop 115) registration Division KP, North West Province (“the farm”).

[3] Their claims were processed in terms of the Restitution Act. In 2007 it was announced that the farm was awarded to members of the Barokologadi ba ga Maotoe ba kwa tribe who combined to form the Barokologadi Communal Property Association in order to receive transfer of the land. The farm was duly transferred and registered in the name of the applicant, being the Barokologadi Communal Property Association.

[4] The applicant has launched this application for an interdict alleging that it is the registered title holder of the farm and that its ownership and possession of the farm is being infringed by the eight respondents and others who graze their cattle on the land. It is alleged that over stocking has led to the degradation of the land and that the rights of the applicant to develop the farm are being hindered. The first eight respondents concede that they use the farm for grazing by 400 head of cattle. However, they allege that the farm is their ancestral land and they have a right to graze cattle on it and collect wood.

[5] The first eight respondents were aware that their claim to the farm was disposed of in 2007. After receiving this application, they launched an application, in the Land Claims Court, to condone a late application to review and set aside the decision of the Regional Land Claims Commissioner in order to themselves obtain possession of the farm.

[6] The first eight respondents allege that they have a competing interest in the property. They say that the Regional Land Claims Commissioner transferred the farm (and other property) to the applicant even though she had consolidated the claims of the Barokologadi and members of the Baphuthing ba Masimong ba go Seleka tribe and had undertaken to deal with them as one for the benefit of all claimants.

The issues

[7] The issues which arise for decision are the following:

Whether the applicant’s application for the condonation for the late filing of its replying and answering affidavits should be granted.

Whether, with regard to the provisions of section 22 of the Restitution Act, this court has jurisdiction to entertain the application for an interdict and the provisional counter-application.

Whether, if this court has jurisdiction to entertain the main or provisional counter-application or just the main application, both applications should be postponed sine die pending the outcome of the review application in the Land Claims Court.

If the postponement is not granted whether the applicant is entitled to succeed on the merits of its application or whether the first eight respondents’ are entitled to their relief provided, of course, that this court has jurisdiction to entertain their counter-application.

The costs of the condonation application.

The costs of the postponement application.

The costs of the main and counter-application.

Condonation

[8] There is no complaint that the first eight respondents have been prejudiced by the late filing of the applicant’s heads of argument.

[9] The attorney for the first eight respondents has indicated, by way of a letter, that they do not oppose the application for the condonation of the late filing of the replying affidavit and the answering affidavit to the provisional counter-application. I have read the facts outlined in the application for condonation. I would grant the application.

Jurisdiction in respect of both applications?

[10] There is no question that this court cannot entertain the respondent’s review application. See section 22 read with section 2 and 3 of the Restitution Act. The Land Claims Court has exclusive jurisdiction in this respect. However, it is also the first eight respondents’ submission that this application for an interdict also falls within the exclusive jurisdiction of the Land Claims Court. Undoubtedly the Land Claims Court has the power to make an order of the nature sought by the applicant provided the matter falls within the purview of their jurisdiction. The Land Claims Court certainly had jurisdiction in respect of the matter. But I am of the view that once the land claimed was awarded to the applicant and transferred into the name of the applicant, the land and matters relating to it passed out of the ambit of the Land Claims Court. It must be borne in mind that the purpose of the Restitution Act is to effect the restitution of land dispossessed from claimants in the circumstances outlined in section 2 of the Restitution Act. Once restitution has been made the land, and claims relating to and arising with regard to it, moves beyond

the purview of the Restitution Act and the jurisdiction of the Land Claims Court.

[11] This is what has happened in this case. If the first to eight respondents’ application for condonation and the review is successful the jurisdiction of the Land Claims Court may be revived. At present the Land Claims Court has no jurisdiction in the matter.

Postponement of main application

[12] Having concluded that this court has jurisdiction over the main application there is in my view no warrant for postponing it or the counter-application.

Decision on the main application and costs

[13] In my view the applicant has established the grounds which entitle it to a final interdict. However, the application for a review of the Regional Land Claims Commissioner’s decision, is a factor which cannot be ignored as there is prima facie merit in the application. I am aware of the outline of the applicant’s defence but I do not have the benefit of the applicant’s case as it has not yet filed an answering affidavit in the Land Claims Court application. It is for this reason that I propose to accede to the eight respondents’ application that any order which I may make be stayed and the costs reserved pending the outcome of the review application.

[14] If the applicant loses the ownership of the farm, the interdict will fall away. If the status quo is maintained the interdict become effective.

[15] In the premises I make the following order:

1. The applicant’s application for the condonation for the late filing of its replying and answering affidavits is granted.

2. The application for a postponement is refused.

3. The first to the eighth respondents are indicted from unlawfully entering and grazing their cattle on the Sebele Farm and causing damage to the Sebele Farm, situated in the remaining extent of the farm Sebele 931 (Lotteringskop 115), Registration Division K.P, North West Province.

4. If the respondents contravenes the order contained in paragraph 3 above, the Sheriff of the court or his lawfully deputy is authorized and directed to:

(a) remove such persons from the Sebele Farm;

(b) remove the cattle from the Sebele Farm;

(c) arrest and take any persons into custody who may resist the order; and

(d) that in the event that the Sheriff of this court or his lawfully appointed Deputy is obliged to give effect to the court order herein, he is authorised and directed to approach the South African Police Services to give him any necessary assistance, and to engage the services of any contractor or security company that he may consider necessary.

5. The orders made in paragraphs (3) and (4) above are suspended pending the finalisation of the first to eighth respondents’ application for the review and ancillary relief concerning the remaining extent of the farm Sebele 931 (Lotteringskop 115) registration Division KP, North West Province launched in the Land Claims Court in April 2011.

6. The costs of the various applications are reserved.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : D C KRUGER ATTORNEYS

FOR THE RESPONDENT : SM MOOKELETSI ATTORNEYS