Department of Agriculture Land Reform and Rural Development: Director General v Barolong Boo Maiketso Communal Property Association and Others (Leave to Appeal) (UM262/2023) [2025] ZANWHC 141 (11 August 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Case No.: UM262/2023

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the application for leave to appeal between:

DEPARTMENT OF AGRICULTURE LAND REFORM AND RURAL DEVELOPMENT: DIRECTOR GENERAL Applicant and BAROLONG BOO MAIKETSO COMMUNAL PROPERTY ASSOCIATION (REG NO: CPA/08/1114/A) 1st Respondent GEORGE BOBIE MEYER 2nd Respondent JENNY EJANG 3rd Respondent KEINNEE RUTH MAKABOLANE 4th Respondent SOLOMON OTLATHIBA LEKGARI 5th Respondent KETSHEPAONE ISAAC MAAMOGWA 6th Respondent NEDBANK (PTY) LTD 7th Respondent FNB (PTY) LTD 8th Respondent SANLAM (PTY) LTD 9th Respondent PROVINCIAL COMMANDER: NORTH WEST PROVINCE SAPS 10th Respondent

JUDGMENT

DIBETSO-BODIBE AJ

INTRODUCTION

[1] Any order made ex parte is provisional and the Uniform Rules of Court make provision for an urgent reconsideration of such an order.

[2] “… Rule 6(12)(c) exists to remedy an injustice if one was done when the ex parte order was granted. What it creates is the opportunity for the respondent to rebut the case of the order. To that end a respondent may either argue that the order was unjustified on its own terms or provide additional facts on affidavit to support an argument that on an enlarged factual matrix the order should be set aside. If a respondent introduces additional evidence, an applicant has a right to reply, but it is not open to an applicant to seek fresh relief or introduce, itself, new allegations of fact. The scheme of the Rule takes as its point of departure that the applicant has got its order and the reconsideration is about whether it can keep its order. To belabour the point an applicant cannot make out a better case for the ex parte order than the case it put before the court when the order was granted…”[1]

APPLICATION FOR LEAVE TO APPEAL

[3] On 11 September 2024 this Court reconsidered and set aside an order which was granted in favour of the Applicant on ex parte bases. The Applicant now seeks leave to appeal the said order and the whole judgment so granted. This application stands unopposed.

GROUNDS OF APPEAL

[4] The relevant portions of the grounds of appeal sifted from a somewhat lengthy and rambling notice of application for leave to appeal are as follows:

[4.1] The learned Judge erred in failing to consider and rule on the point in limine of locus standi raised by the Applicant in respect to the 2nd to 6th Respondents (“Respondents”) authority to bring a reconsideration application and/or participate in the proceedings as members of the executive committee (“EXCO”) of the Barolong Boo Maiketso Communal Property Association (“BBMCPA”). Paragraph 3 of the replying affidavit, the Applicant raised a point in limine on the basis that, on or about January 2024, the Respondents brought the reconsideration application or participated in the proceedings in their capacity as members of the EXCO of BBCPA, whereas they have been disbanded on or about December 2023.

[4.2] The learned Judge erred at paragraph 12 in finding that the Respondents has produced “proper documentation” and power of attorney to proof their authority to act for the association as EXCO. There is no other document produced on the papers placed before court by the Respondents to proof an authority to act on behalf of BBMCPA except power of attorney. The Applicant in his notice has requested a resolution of the association, BBMCPA authorising the Respondents to bring the reconsideration application or to participate in the proceedings.

[4.3] At paragraph 21 and 24 of the judgment, the court erred and misdirected itself in finding that there is no evidence that the Applicant has requested the Respondents to submit the financial statements/reports.

[4.4] The learned Judge erred at paragraph 19, wherein the court finds that, failure to serve the application on the Respondents has caused them harm or deprived them of an audi alteram partem principle which is meant to prevent an inadvertent harm. There is no harm suffered or claimed to have been suffered by the Respondents in their affidavits, neither did the court set out the harm suffered by the Respondents. The application before the court was to freeze the bank accounts of the association not the personal bank accounts of the Respondents.

[4.5] At paragraph 26 of the judgment, the honourable judge erred in finding that, in terms of section 11 of the CPA “if the dispute arises within a CPA, the DG must hold an enquiry or appoint a conciliator to assist in resolving the dispute.” This is gross misdirection on two reasons: (a) The honourable judge has misquoted and/or misinterpreted section 11 of the CPAA. The correct section 11 provides that “if a dispute arises within the association, the Director-General may, of his or her own accord, (f) take such other reasonable steps as he or she considers appropriate in the circumstances.” (b) It is evident that according to section 11 of the CPAA, the DG enjoys discretionary powers on how he or she intends to resolve the disputes arising from the association. This section is discretionary and not peremptory or mandatory unlike what the court has found.

[4.6] At paragraph 14 of the Judgment, the honourable judge erred in finding that, “I agree with the Respondents’ contention that this is tantamount to making one’s case under reply which should have appeared in the founding affidavit. It is trite law that an Applicant must make out his case in the founding affidavit and cannot do so in reply.” The Applicant has made averments in the founding affidavit regarding the Respondents’ maladministration and/or misappropriation of the funds of the CPA in paragraph 5.18 of the founding affidavit. This allegation was denied by the Respondents in the answering affidavit, which prompted the Applicant to attach proof of such from the bank statements obtained through the interim order. It is evident the bank statements complained about, did not constitute a new cause of action or a new matter as the case of maladministration and misappropriation of funds was stated in the founding affidavit. The attachment of the bank statements was based on the Respondents denials.

[4.7] At paragraph 28 of the Judgment, the honourable judge erred in finding that, the reconsideration application must succeed because the application was heard on ex parte basis without the Respondents in that they ought to have been served because of the facts of the matter and that the interim order has created an injustice. In the interim order the Respondents were not interdicted in their personal capacity as members of the association but as former EXCO that, they are not permitted to transact in the association bank accounts, pending the election of a new EXCO.

[5] In its replying affidavit the Applicant contended that the court should have found that the Respondents do not have locus standi to institute proceedings in their capacities as members of the Executive Council (EXCO) of the Communal Property Association, since the EXCO had been disbanded on 06 December 2023 at the general meeting with the members of the Association. The decision and/or proof of such decision did not form part of the ex parte application. The Applicant

averred in its founding affidavit as follows concerning the disbandment of EXCO:

“5.11 The Department therein scheduled a general meeting with members and/or beneficiaries of the association on the 06 December 2023. A copy of the notice and agenda has been attached herein marked annexure “TDM-2”.

5.12 At the said meeting, the Department in consultation with the members and/or beneficiaries of the association took a resolution to dissolve the executive committee members with immediate effect.

5.13 Immediately after the dissolution of the executive committee, violence erupted and the general meeting was disrupted. The beneficiaries of the association and the department couldn’t finalize the appointment of the interim executive committee.

…

5.15 The documents or records held by the association and/or the department on the said date, were taken by force and some were

destroyed.”

[6] In an attempt to advance the argument that the EXCO had been disbanded, the Applicant merely annexed to the replying affidavit annexures “RGK-6” and “RGK – 7.1” without addressing the contents thereof in the body of the replying affidavit.

[7] Annexure “RGK-6” titled “BAROLONG BOO MAIKETSO COMMUNAL PROPERTY ASSOCIATION MEETING, 06 December 2023, 10H00, TRIBAL HALL, MOROKWENG VILLAGE” states that:

[7.1] “Attendance and apologies:

- Department officials: Mr Sebolai, Mr V Molope, Mr P Manyokole.

- Barolong Boo Maiketso traditional Authority members.

- CPA executive Committee was absent, no apology tendered.

- CPA members at large.

- Copy of the attendance was destroyed after the meeting.

[7.2] Agenda:

- Purpose of meeting

- Announcement by the Department regarding the status of the CPA Executive Committee.

- Nomination of the interim executive committee

[7.3] Purpose of the meeting:

- Mr Sebolai indicated that this meeting was necessitated by the fact-finding meeting which was held on 12th November 2023. He indicated that there were several issues related to maladministration and corruption which were raised during the meeting and the Committee refused to respond. During the meeting it was resolved that a motion of no confidence will be debated on the 6th of December 2023.

[7.4] Announcement by the Department:

- The Department indicated that after a fact finding meeting held with the beneficiaries on the 22nd of November 2023, the office was left with no option except to invoke section 11(6d) and (f) of the Act. It was pronounced that Barolong Boo Maiketso CPA Executive Committee has been disbanded and there is a need to establish/elect an interim executive committee for a period of 3 months.

[7.5] Challenges experienced:

- Before the establishment of an interim exco-committee, the meeting was abruptly disrupted by certain unruly members who sprayed pepper spray. All people inside the hall had to run outside and that collapsed the meeting. Outside the hall there were physical fights that were taking place.

- Official documents, in the main Barolong Boo Maiketso CPA file which had records as well as attendance registers for the meeting held on 22nd of November 2023 and 6th December 2023 were destroyed…”

[7.6] This document was not authenticated by either the signature of the scriber: Mr P. Manyokole nor the Chairperson: Mr R Sebolai. Also the document is undated.

[8] Annexure “RGK-7.1” is an email from Itsholeng Sebolai, Department of Agriculture, Land Reform and Rural Development to the secretary and chairperson of the Barolong Boo Maiketso CPA titled ‘Dissolution letter for Barolong Boo Maiketso CPA EXCO Committee’. The content of the email states ‘Morning Chair and Secretary, attached please find the attached letter regarding the above-mentioned letter’.

[9] The said documents did not form part of the Applicant’s founding papers and were simply annexed to the replying affidavit without canvasing the implications thereof in the body of the replying affidavit. It is not necessary at this point to deal with the effect of the said annexures, what matters is the fact that the Applicant must stand or fall by its founding papers.

THAT THE APPLICANT HAS MADE AVERMENTS IN THE FOUNDING AFFIDAVIT REGARDING THE RESPONDENTS’ MALADMINISTRATION AND/OR MISAPPROPRIATION OF THE FUNDS OF THE CPA

[10] The Applicant’s ground of appeal is that “the Applicant has made averments in the founding affidavit regarding maladministration and/or misappropriation of the funds of the CPA in paragraph 5.18 of the founding affidavit. This allegation was denied by the Respondents in the answering affidavit, which prompted the Applicant to attach proof of such from the bank statements obtained through an interim order”.

[11] Failure by the Applicant to attach bank statements as proof of such serious allegations against the Respondents did not advance their case as those allegations remained unsubstantiated allegations for as long as no proof was attached to the founding papers.

[12] “It is trite that in motion proceedings the affidavits constitute both the pleadings and the evidence. As a respondent has a right to know what case he or she has to meet and to respond thereto, the general rule is that an applicant will not be permitted to make or supplement his or her case in the replying affidavit.”[2]

[13] Both the two points in limine were striked out from the Aplplicants’ replying affidavit after proper consideration of the application to strike out. Counsel for the Respondents was correct in his submissions that new facts were drawn in during reply which were prejudicial to the Respondents.

[14] Applications for leave to appeal are governed by the provisions of Section 17 of the Superior Court Act 10 of 2013. Section 17(1) provides that –

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that:

(a)(i) the appeal would have reasonable prospect of success, or

(ii) there is some compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration,

(b) the decision sought on appeal does not fall within the ambit of Section 16(2)(a), and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[15] “The traditional test that was applied by the Courts in considering leave to appeal applications have been whether there is a reasonable

prospect that another court may come to a different conclusion to the one reached by the court a quo… with the enactment of Section 17, the test obtained statutory force. In Section 17(1)(a)(i) leave to appeal may now only be granted where the judge or judges concerned are of the view that the appeal would have a reasonable prospect of success, which made it clear that the threshold to grant leave to appeal has been raised…”[3]

[16] “… therefore it would always be advisable, when dealing with an application for leave to appeal to look at the enabling statute to find guidance… The test is simply whether there are any reasonable prospects of success in an appeal. It is not whether a litigant has an arguable case or a mere possibility of success.”[4]

[17] The Applicant’s notice of appeal purports in certain instances to be directed against the reasons for the order as opposed to the substantive order granted. The power of this court to grant leave arises only in respect of “a judgment or order” within the meaning of that expression and not against the reasons for judgment as was the case in the Applicant’s notice of appeal.

[18] In the circumstances and bearing in mind the stringent test that now applies to application for leave to appeal and having considered all the submissions made on behalf of the Applicant, this Court is of the considered view that there are no reasonable prospects of success on appeal.

ORDER

[19] The following order is made:

[19.1] The application for leave to appeal is dismissed

[19.2] No order as to costs

O.Y DIBETSO-BODIBE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

Delivered: This judgment is prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties or their legal representatives by email and by release to SAFLII

DATE OF HEARING:

02 May 2025

DATE OF JUDGMENT:

11 August 2025

APPEARANCES

FOR THE APPLICANT:

Adv I Mukwevho

INSTRUCTED BY:

State Attorney

Mmabatho

O Ramokhali

FOR THE RESPONDENTS:

No appearance

INSTRUCTED BY:

[1] Mazetti Management Services (Pty) Ltd and Another v Amabhungane Centre for Investigative Journalism NPC and Others (2023 – 050131) [2023] ZAGPJHC 771 (3 July 2023) para [14]

[2] Mostert and Others v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54 (11 April 2018) at para [13]

[3] H.B (Nee D.J) v RJ.B (Leave to Appeal (21480/2014)) [2024] ZAGPPHC 401 (2 April 2024) (H.B (Nee D.J)) at para [6]

[4] Mothuloe Incorporated Attorneys v The Law Society of the Northern Province and Another (213/16) [2017] ZASCA 17 (22 March 2017) at para [18]