Bhala Traditional Council v Dumezweni and Others (3486/2018) [2020] ZAECMHC 17 (3 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION: MTHATHA]

CASE NO. 3486/2018

In the matter between:

BHALA TRADITIONAL COUNCIL

APPLICANT

and

THAMSANQA MAKATI DUMEZWENI

1ST RESPONDENT

PHEYINI MATHANDIMALI NGXALIWE

2ND RESPONDENT

PHUMELELE BEJE

3RD RESPONDENT

HONONO MARHULUMBA DINGINDAWO

4TH RESPONDENT

NDYIKITYA MKHAKHA

5TH RESPONDENT

MZEKELWA DUBA

6TH RESPONDENT

STATION COMMISSIONER: SOUTH AFRICAN

POLICE SERVICE - FLAGSTAFF

7TH RESPONDENT

JUDGMENT

JOLWANA J:

[1] The applicant approached this Court seeking an order declaring the respondents’ alleged conduct of subdividing, demarcating and allocating land in its area of jurisdiction unlawful and interdicting them from continuing with such conduct.

[2] The applicant is a traditional authority with jurisdiction over an area occupied by the Bhala Traditional Community in Flagstaff, a recognised traditional community that is subject to a system of traditional leadership and conducting its affairs in terms of its own customs.

The applicant has the powers vested in it in terms of section 4 of the Traditional Leadership and Governance Framework Act 41 of 2003 (the Framework Act) to, inter alia, administer the affairs of the people of Bhala Traditional Community within its area of jurisdiction.

[3] The deponent on behalf of the applicant is the Acting Chief of Bhala Traditional Community and as such the head of the applicant. It is in that capacity that he deposed to the founding affidavit on behalf of the applicant. The respondents take issue with his authority to institute these proceedings. I will revert later to this issue which has been raised quite strongly by the respondents who submit that the applicant should be non-suited and this application dismissed on that basis alone.

[4] Several allegations have been made by the respondents against both Chief Mwelo Nonkonyana and Acting Chief Meyisi Baphathe Nonkonyana. Purely for brevity and clarity I will refer to Chief Mwelo Nonkonyana as Chief Nonkonyana and to the Acting Chief as Mr Nonkonyana. This should not in any way be seen as demeaning to them regard being had to the reverence given to people who hold those and similar positions within the system of traditional leadership in the greater context of customs and traditions practiced by some of the indigenous African people especially in rural areas.

[5] The respondents, save for the seventh respondent, are all part of the Bhala Traditional Community and reside in Bhala Administrative Area which comprises of various localities. Each locality is overseen by a sub-headman and a group of localities is under a headman or headwoman and all the headmen or headwomen are under the senior traditional leader called a chief ― who sits in council with members of the traditional council.

[6] No substantive relief is sought against the seventh respondent who is cited herein purely for the enforcement of the court order should the applicant succeed in this application. The first to the sixth respondents all oppose this application. The first respondent has deposed to the answering affidavit for himself and also on behalf of the second to the sixth respondents. For convenience and also in light of the fact that the seventh respondent does not oppose this application, I shall henceforth refer to the first to the sixth respondents as the respondents.

[7] Mr Nonkonyana alleges that the respondents constituted themselves into a committee. They together with their supporters subdivided, demarcated and allocated land in some localities in the applicant’s area of jurisdiction. Some members of the community brought the respondents’ conduct to the attention of the relevant sub-headman and headman. The headman under whose area of jurisdictional the affected localities fall, Mr Gontsana admonished the respondents to stop their conduct as there is a well-known system of allocating land in the whole area under the applicant’s jurisdiction. The respondents became defiant and went on to demarcate and allocate land in another locality and even repeatedly demarcated sites that had already been allocated to other members of the community.

[8] He also alleges that after these events were brought to his attention, he personally went to the respective localities of Sizindeni and Jaca. He met the first to the six respondents and asked them to desist from their unlawful conduct and reminded them of the procedure of land demarcation and allocation in the whole area under the applicant’s jurisdiction. However, the respondents did not take heed of his advice and instead, they became dismissive and defiant.

[9] He explains the procedure for the allocation of land to the people in Bhala Traditional Community as follows:

“20. The procedure which is followed is for any member of the community who wants to be allocated a piece of land to approach a sub-headman

of the area concerned for allocating a site and the sub-headman of the locality must consult the residents of the area and after its approval approach a headman of the area who should satisfy himself or herself that the procedures for allocating land have been followed. He would then submit the recommendation to the Traditional Council concerned for approval.

21. Once a Traditional Council approves the allocation of land, a person designated by it allocates the land and all the members of the community are advised about the date for allocating the land to the applicant and are entitled to witness the event.

22. In cases where the land is sought from an area not earmarked for residential purposes for instance the Departments of Land and Agrarian Reform and Agriculture must be consulted by the Traditional Council for their approval.”

[10] He further refers to a specific incident which occurred on one occasion pertaining to Mrs Noloyiso Beje (Mrs Beje) who was allegedly unlawfully allocated a site by the respondents. He recounts the incident as follows:

“27. The applicant has approved allocation of sites to about twenty residents and I have set aside Friday 27 July and 28 July 2018 as the dates on which to hand over the sites to them.

28. The respondents have organized themselves and their supporters to interfere with the handing over of the sites to the residents who have complied with the prescribed procedures and the law.

29. The applicant, having advised Mrs Noloyiso Nontsapho Beje, who had been illegally allocated a site by the respondents not to build at a site unlawfully allocated to her, she removed her fence in the site allocated to her by the respondents and applied for allocation of her site at an adjacent area approved for residential purposes and has been granted a permission to be allocated the site. Applicant has determined this coming Friday the 27 July 2018 as the date to demarcate and to hand over to her the residential site to enable her to build her home.

30. On Tuesday 25 July 2018 the sub-headman reported to us that the respondents went to the area where the said Mrs Beje had been lawfully allocated the residential site and re-demarcated the sites in the area and vowed to go to the area armed to stop applicant from giving the site to the said Mrs Beje in accordance with custom.

31. There is a potential of violence on the date set aside to hand over sites to deserving members of the locality including the said Mrs Beje in accordance with custom.

32. In our area people are allowed to build their homes during winter as the summer season is not conducive for such purposes.”

[11] The above are some of the details put up by the applicant to make out a case for an interdict. Evident from the above is that the applicant makes certain averments regarding the details of places, people, dates and alleged events which had taken place. Regrettably, the respondents deal with the applicant’s averments in a rather terse and dismissive fashion in their answering affidavit. This is how they respond:

“

11.

AD PARAGRAPHS 23, 24, 25, 26, 27, 28, 29, 30, 31 & 32 THEREOF.

Contents hereof are categorically denied and applicant is put to proof thereof.

In amplification thereof I aver that the Committee of twenty five (25) members from Bhala Traditional Community did not constitute itself as a Committee but were elected by the members of the Bhala Traditional Community to represent them and such Committee is not cited herein in these proceedings notwithstanding the fact that in the application the deponent and the deponents to the Confirmatory Affidavits in the Founding Affidavit of the deponent were demarcating, allocating sites at Jaca Location, Flagstaff yesterday the 31 July 2018.

Present were Mziwoxolo Mahawule, Nkosiphendule Mzothwa, Matshezi Nontsebenzo Myolwa, Meyisi Baphathe Nonkonyana (the deponent) and his Affidavits are all made up of lies and no violence could erupt.

The deponent is not candid to this court as the people who are causing disruption in our location are caused by Chief Mwelo Nonkonyana and now deponent as he is now taken over from his father and is doing exactly as his father was doing.

To site one example notwithstanding the institution of this application the deponent and his cahoots were demarcating sites on 31 July 2018 knows it and who are its members but has targeted certain individuals in the location.

The applicant is using the three deponents to the Confirmatory Affidavits to come and lie about myself, 2nd to 6th Respondents for no valid reason and/or excuse.

The allegation by the three Headmen or Sub-Headmen who deposed to the Confirmatory Affidavits are nothing but a lie.

There were no residents of Jaca on 31 July 2018 but only the people mentioned above and those to whom sites were allocated to.

Veni Mhleni Gontsana was not present.”

[12] What becomes abundantly clear from the above paragraphs of the respondents’ answering affidavit is that they make bare denials and for some reason, avoid engaging with the facts alleged by the applicant in any meaningful or cogent manner. For example, they do not even mention Mrs Beje or deal with the detailed allegations concerning her. Secondly, the respondents appear to be making their own allegations that have nothing to do with the case brought against them by the applicant. And also at the very beginning of the answering affidavit the respondents spent copious amounts of time - and dedicated a substantial amount of their answering affidavit to the Bhala Traditional Committee (the Committee), its activities and interactions with the Department of Co-operative Governance and Traditional Affairs, Eastern Cape officials and what allegedly took place in some meetings. They, however, are generally very miniscule and terse in dealing with the actual case brought against them by the applicant with their pure, unsubstantiated denials.

[13] Most significantly, the first respondent and the fourth respondent actually confirm that they are members of the Committee. Allegations are also made by the respondents that Chief Nonkonyana and the members of the applicant demarcate and allocate land to people who pay allegiance to them or their followers in exchange for money. They then make this telling averment:

“5.1.19 Seeing that they were being sidelined, the people, Bhala Traditional Community and its Committee have resolved to demarcate sites as well for the people of Bhala Traditional Community;

5.1.20 Therefore there is massive dispute of fact which could not be resolved on the papers other than the oral evidence being led.”

[14] This alleged massive dispute of fact is not at all based on the factual averments made by the applicant about what allegedly took place which resulted in it instituting these proceedings. It seems to be based on another case that the respondents and the Committee have and about some old grievances they have relating to the manner in which, on their version, the applicant and Chief Nonkonyana and Mr Nonkonyana are administering the affairs of the Bhala Traditional Community.

[15] The first and second respondents confirm being members of the Committee which the applicant alleges, and how the respondents and their supporters have formed. Furthermore, it is the respondents’ version that those who felt that they were being sidelined in taking part and the Committee resolved to demarcate sites. This confirms the applicant’s allegations in a very significant way. Furthermore, the respondents do not at all substantively deal with the applicant’s allegations beyond bare denials amplified by facts which, though they may be important in the context of the history of their grievances, are not relevant to the applicant’s case. While these grievances appear to be very serious they are not germane to the applicant’s case.

[16] The respondents have also raised points in limine and have also made reference to those points in limine in their averments on the merits. If nothing else, this shows how pivotal the issues they raise in that regard are to their defense in the whole case. I deal with them hereunder.

[17] It would be remiss of me not to emphasise that equal access to land and the opportunities which flow from land ownership are very important in any society especially to the rural communities. We should never forget the colonial and apartheid history of land dispossession in this country which has contributed in no small measure to the poverty and landlessness of the majority of its citizens. This is the context in which land hunger and conflicts concerning land must be understood. Just to remind those of us might have forgotten that history I refer to what Jafta J said recently in Herbert N O.[1] Writing a unanimous judgment of the Constitutional Court, he said:

“In the former homelands access to land and occupation of land are still regulated by legislation that was passed by Parliament and other legislative bodies of the apartheid era. Many people continue to be denied secure land tenure rights. They are not afforded rights better than occupational rights in land which may be terminated in terms of the old- order laws. As noted here the continuing operation of laws that deny black people secure rights in land is inconsistent with the Constitution, our supreme law. The dignity of the affected people is persistently impaired by the enforcement of those laws. The victims of the unfair differentiation brought about by these laws have become second-class citizens to whom the fruits of the Constitution remain a dream, deliberately kept out of their reach.”

[18] If it were to be true that there are citizens and residents in some rural communities under the system of traditional leadership who are being arbitrarily denied access to land by the very traditional leaders that should understand this country’s widely documented history of land deprivation and dispossession more than anyone else, it would be tragic indeed. I hope that it is

not true.

[19] However, even if there was some truth to the respondents’ allegations that some of the members or residents of Bhala Traditional Community were being denied access to land for no or some irrational reasons, that would be no justification for what the respondents are alleged to have done.

[20] There are constitutional remedies that are available to any citizen, including members of traditional communities who feel excluded arbitrarily or differentiated unfairly on any basis that lacks the constitutional standard of rationality. It was clearly wrong and even ill-advised of the respondents and other members of the Committee to not exhaust those constitutional remedies. Instead, on their own version they resolved to demarcate and allocate land for those they felt were being sidelined by the applicant and Chief Nonkonyana. In doing so they were literally taking the law into their own hands — a conduct that cannot be countenanced in a constitutional dispensation that is based on the rule of law in this country.

[21] The respondents do confirm that the procedure of land demarcation and allocation explained by the applicant has been correctly described and is the correct land allocation policy in the Bhala Traditional Community. This is the very reason why if that policy was allegedly violated, as they say it was not being followed by the applicant, it was incumbent upon them to assert their right of access to land through lawful means and if necessary by taking the matter to court for adjudication. After all, access to land by everyone is one of the fundamental rights enshrined in our Constitution.

[22] The history of the respondents’ dissatisfaction with how land is allocated by the applicant cannot be a basis for what they call a massive dispute of fact by any stretch of imagination. Even a denial of the applicant’s averments on its own, without more is not a sufficient basis for a dispute of fact. In articulating the legal position on disputes of fact, I can do no better than refer to Plascon–Evans[2] in which Corbett JA said:

“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by [the] respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T), at 1163-5; Da Mata v Otto NO 1972 (3) SA 858 (A), at 882D-H).

If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination

under Rule 6(5)(g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg. Rikhoto v East Rand Administration Board and Another 1983(4) SA 278 (W) at 283E-H). Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far–fetched or clearly untenable that the Court is justified in rejecting them merely on the papers...” (My added emphasis.)

[23] On the facts of this matter the submission that there is a dispute of fact is unsustainable. It is no more than an attempt to use these proceedings to vent what appears to be grievances by the respondents and other residents of the Bhala Traditional Community about the alleged sidelining of some of the members of the community and the alleged demand by Chief Nonkonyana for payment of an amount of money for land allocation. Whether there is substance or not in these allegations is not relevant for this matter. The real issue is whether the respondents did demarcate and allocate land unlawfully contrary to the land allocation policy or custom of the Bhala Traditional Community. In this regard and on the basis of the respondents’ own version and their failure to engage frontally with the applicant’s allegations, I find that on a balance of probabilities the applicant has made out a case for the relief sought.

[24] On the failure by the respondents to seriously deal and unambiguously address the facts alleged by the applicant I am emboldened in my views by the sentiments expressed by Heher JA in Wightman[3] in which he said:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit

seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.”

[25] The respondents have also raised the point in limine of the non-joinder of the Bhala Traditional Committee. The respondents allege that this Committee is comprised of twenty-five members elected from the seven villages that constitute the Bhala Traditional Community. It was allegedly formed to champion the interests of the members of the community. There is of course nothing wrong with people grouping themselves into whatever lawful structure they choose. This is part of the exercise of the right to freedom of association provided for in section 18 of the Constitution.[4] However, the applicant seeks no relief against the Committee or any of its other members. In fact, the applicant seeks relief against the respondents specifically. This is in relation to the activities of the respondents themselves as clearly averred in the founding and confirmatory affidavits.

[26] It might be true that the applicant is aware of the existence of the Committee, a fact to which the applicant itself alludes to. However, the applicant seeks relief only against the respondents individually for their own conduct. In my view, that relief is perfectly enforceable against the respondents. Furthermore, it is not clear that the respondents embarked in the unlawful land demarcation and land allocation only in their personal capacities or as members and supporters of the Committee or in both capacities. It might very well be that the Committee did not sanction the unlawful activities that the respondents embarked upon. Even if it did, the applicant would still be entitled to seek relief against the respondents and whoever else embarked on unlawful land demarcation and allocation. That they broke the law under the auspices of some committee is a side issue in my view.

[27] The respondents have also raised a point in limine of the misjoinder of the 2nd, 3rd, 5th and 6th respondents, this on the basis that they are not the members of the Bhala Traditional Committee. The respondents, both in the non-joinder of the Bhala Traditional Committee and the misjoinder of these respondents are missing the point. The applicant’s case is simply that the six respondents demarcated and allocated land contrary to the policy and custom applicable in the area under its jurisdiction. The basis on which they are misjoined and the basis on which the Committee should have been joined seems to me to be an attempt at diversion and obfuscation at best, if not a misunderstanding of the applicant’s case.

[28] Writing for the full court in Judicial Service Commission[5] Brand JA explained the legal position as follows:

“It has by now become settled law that the joinder of a party is only required as a matter of necessity ─ as opposed to a matter of convenience – if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC and Another 2007(5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. The right of a party to validly raise the objection that other parties should have been joined to the proceedings, has thus been held to be a limited one (see eg Burger v Rand Water Board and Another 2007 (1) SA 30 (SCA) para 7; and Andries Charl Cilliers, Cherl Loots and Hendrick Christoffel Nel Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5 ed vol 1 at 239 and the cases there cited).”

[29] Joinder as a legal principle ― in all its facets is based on the overall principle of a direct and substantial interest in the judgment or order that may be issued. In Ngcame[6] Brooks AJ, as he then was, in dealing with a joinder application had this to say:

“What is lacking in the applicants founding affidavit, and indeed even in the replying affidavit, are allegations which establish any basis upon which the applicant claims that the third respondent may be liable for the payment of the applicant’s damages. No vinculum iuris is established which would demonstrate that the third respondent has a direct and substantial interest in the present action. Liability for the payment of the applicant’s damages on the basis that the third respondent is the owner of the motor vehicle concerned forms no part of the lex acquilia upon which the applicant’s claim is based. Were the applicant to issue a separate combined summons against the third respondent in which he claimed that the third respondent was liable for the payment of his damages on the basis that third respondent was the owner of the motor vehicle concerned, such summons would be excipiable on the basis that the allegations contained therein were insufficient to sustain a cause of action.”

[30] I can conceive of no basis on which the applicant who has evidence that the respondents are demarcating and allocating land unlawfully should be obliged to join a Committee to which they may or may not belong. The applicant clearly has a cause of action against the people that were seen demarcating and allocating land. That they belong to some structure or committee whose authority or right to demarcate and allocate has not been established, as the respondents themselves do not deal with this issue, is neither here nor there in relation to the relief that the applicant seeks.

[31] The respondents also take issue with the authority of Mr Nonkonyana to institute these proceedings on the basis that he had no certificate of recognition as the acting chief of Bhala Traditional Community when these proceedings were launched. He has fully explained the process that was followed in appointing him as the acting chief. It includes annexures “MB3”, the provincial government gazette no.4035 dated 24 April 2018. In that government gazette the MEC responsible for the Department of Co-operative Governance and Traditional Affairs in the Eastern Cape published for general information, his intention to recognise Mr Nonkonyana as the acting chief of Bhala Traditional Community.

[32] The respondents are raising a very thin point that as at the time these proceedings were instituted in July 2018, the certificate of recognition had not yet been issued. While that might be so, the fact of the matter is that the processes for his appointment as acting chief started long before these proceedings and he assumed his duties as the acting chief long before these proceedings were conceptualised. Furthermore, the respondents seem to be conflating the applicant’s locus standi with the issuing of a certificate of recognition for the deponent. In their answering affidavit the respondents do not take issue with Mr Nonkonyana describing himself as an acting chief and head of Bhala Traditional Council in the founding affidavit. They completely ignore this point. Even when it is raised, it is raised by their attorney in a separate affidavit and not by the respondents themselves. The point appears to be a misguided after thought which lacks substance or merit. It is a technical point that seeks to have the effect of non-suiting the applicant. I do not think that doing so would be in the interest of justice even if it had been raised by the respondents themselves.

[33] Access to justice is not to be taken lightly lest it loses its meaning and becomes illusory if some technical points were allowed to constrict it. This is what, in my view, the respondents seek to do, to not allow the applicant to institute these proceedings on the basis that some formalities relating to Mr Nonkonyana’s acting appointment had not yet been finalised. In Gqirana[7] Lowe J, expressed these profound sentiments on access to justice:

“In terms of section 34 of the Constitution, every person has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, or where appropriate, another impartial tribunal or forum.”

Further

“This fundamentally allows, as a substantive right, every person access to courts, individual equality and non-discrimination. This is laid down as a fundamental right. [Inaccessibility] clearly goes against the principle of equality.”

[34] As I understand it, the respondents’ case in this regard is that there would have been nothing wrong if the deponent to the applicant’s founding affidavit was Chief Nonkonyana. However, in his absence and acting on his behalf, after a valid process of his appointment that the respondents do not impugn, they submit that there is something fundamentally wrong with Mr Nonkonyana instituting the same proceedings ― only because the last leg of the process of his appointment — the issuing of the certificate of recognition had not yet been perfected. I do not think so. In fact, doing so would, in my view, severely limit access to justice by putting form above substance.

[35] An application was made for the condonation of the applicant’s failure to file timeously its replying affidavit. I need not dwell much on the facts which are given as reasons for the delay. In any event the respondents do not oppose the condonation application. I am satisfied with the explanation and therefore I am inclined to grant the condonation application.

[36] On the facts of this case the requirements for the granting of a final interdict have been met. That the applicant has a clear right to protect the customary practice of land allocation and prevent lawlessness, anarchy and land grabs in its area of jurisdiction cannot be challenged. Attempts to reason with the respondents were paid no heed by them. Instituting these proceedings to restore law and order in the area became the only effective remedy as the police refused to intervene without a court interdict. In Setlogelo[8] the requirements for a final interdict were stated as follows:

“So far as merits are concerned the matter is very clear. The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.”

It is, in any event, not the respondents’ case that the requirements for a final interdict have not been met.

[37] This application was initially set down to be heard in the opposed motion court on the 28 February 2019 at 09h30. The relevant notice of set down was served on the respondents’ correspondent attorneys on 22 November 2018 at 09h06. However, when the matter served before Coltman AJ on 28 February 2019 there was no appearance for the respondents. Coltman AJ, having read the papers and the applicant having briefed counsel who appeared for it, could not proceed with the matter in the absence of a legal representative for the respondents.

[38] Coltman AJ who was obviously greatly inconvenienced by this sudden turn of events issued the following order:

“1. The matter is postponed to a date to be determined by the Registrar.

2. The applicant must serve Notice of set down on all respondents personally.

3. The Registrar must call for an affidavit by Mr Manitshana, in which he should explain:

(a) why there was no appearance for the respondents;

(b) furnish reasons why a de bonis propriis costs order should not be made against the respondents’ attorneys for the costs occasioned by the postponement.”

[39] Mr Manitshana has filed an explanatory affidavit in which he basically says that he was not aware of the matter as he was never given instructions by the respondents’ attorneys, Linyana Somacala Inc. It appears that his office was just made to appear as appointed correspondent attorneys without any formal instructions. This is clearly irregular and even unprofessional.

[40] Most disturbingly Mr Manitshana says that the “notice of set down” was collected by a Mr Baskiti of Linyana Somacala Inc. There is no affidavit on behalf of Linyana Somacala Inc. giving their side of the story. They have not made any attempt to refute Mr Manitshana’s allegations. The only inference to be drawn from that conduct is that they have no explanation for their failure to attend court and appear for their clients on the 28 February 2019 or even to brief counsel to do so. This greatly inconvenienced the court in having to read the papers for a matter that ended up not being heard on account of the respondents’ attorneys’ failure to appear or brief counsel to appear for the respondents.

[41] As Mr Linyana was preparing for the hearing of this matter on the 14 May 2020, he would have become aware of both Coltman AJ’s court order dated 28 February 2019 and Mr Manitshana’s explanatory affidavit. He, as part of his preparations, filed supplementary heads of argument and a rule 15A Practice Note for the respondents on the 07 May 2020. He, However, saw no need to file an affidavit explaining himself or even tendering an apology for his failure to ensure that there was a legal representative representing the respondents on the 28 February 2019. This calls for appropriate sanction against Mr Linyana especially in light of Coltman AJ’s court order dated 28 February 2019 which he chose to ignore. That appropriate sanction is, in my view, the one determined by the court on 28 February 2019 in relation to the costs occasioned by the postponement on that day.

[42] The applicant has succeeded in its application for the relief sought in the notice of motion. There is no reason why the costs should not follow the results. Therefore, the following order shall issue:

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

2. The conduct of the first to the sixth respondents and anyone acting on their behalf or in concert with the them in subdividing, demarcating and allocating land in any of the localities under the applicant’s jurisdiction in Bhala Traditional Community without complying with the correct prescribed procedure is declared unlawful, of no force or effect and is set aside.

3. The first to the sixth respondents and anyone acting on their behalf or in concert with them are finally interdicted from unlawfully subdividing, demarcating and allocating residential sites within the area of jurisdiction of the applicant.

4. The first to the sixth respondents and anyone acting on their behalf or in concert with them are finally interdicted from interfering with the officials of the applicant when carrying their lawful duties including but not limited to demarcating and allocating sites within the area of jurisdiction of the applicant.

5. The members of the South African Police Service are hereby directed to assist the sheriff or his deputy and to take all the necessary measures to ensure that paragraphs 3 and 4 of this order are complied with.

6. Mr B. Linyana and/or Linyana Somacala Inc. are ordered to pay de bonis propriis the costs occasioned by the postponement on the 28 February 2019 on the opposed motion court scale.

7. The first to the sixth respondents are ordered to pay costs of this application excluding costs for the condonation application on a party and party scale.

_____________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the Applicants: M. NONKONYANA

Instructed by: MVUZO NOTYESI INC.

Mthatha

Counsel for the Respondents: N. LINYANA

Instructed by: LINYANA SOMACALA ATTORNEYS

c/o MANITSHANA TSHOZI ATTORNEYS

Heard on: 14 May 2020

Delivered on: 03 June 2020

[1] Herbert N.O. and Others v Senqu Municipality and Others 2019 (6) SA 231 (CC) at para 37.

[2] Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A) at 634-635.

[3] Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008(3) SA 371 (SCA) at para 13.

[4] Constitution of the Republic of South Africa, 1996.

[5] Judicial Service Commission and Another v Cape Bar Council and Another 2013(1) SA 170 (SCA) at para 12.

[6] Ngcame v KSD Municipality and Others (ECM) unreported case no 1924/14 of 3 March 2016 at para 5.

[7] Nedbank Ltd v Gqirana NO & Another, and Similar Matters 2019(6) SA 139 (ECG) at paras 40-41.

[8] Setlogelo v Setlogelo 1914 AD 221 at 227.