Dr J.S Moroka Local Municipality v Ntuli and Others (969/2021) [2021] ZAMPMHC 20 (21 July 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: /NO

(3) REVISED: YES

21 JULY 2021

Case No: 969/2021

In the matter between:

DR. J.S. MOROKA LOCAL MUNICIPALITY Applicant

versus

SIMON NTULI First Respondent

PIET MAPHUTHOMA

Second Respondent

MAMPANA JOSEPH MAKWE

Third Respondent

(Identity No. [….]

PHOKWANAE OFFICE

Fourth Respondent

(Identity No. [….])

FANYANA MAHLANGU

Fifth Respondent

JAN KOLOBE

Sixth Respondent

UNLAWFUL OCCUPIERS OF PORTION 33 Seventh Respondent

OF THE FAM VALCHSFONTEIN 48 J.S.

JUDGMENT

BRAUCKMANN AJ

INTRODUCTION:

[1] In this application the Applicant seeks to interdict the Respondents from fraudulently and unlawfully selling and allocating portions of State land, and to have the unoccupied unlawfully erected structures on the property removed and the unoccupied structures demolished.

[2] The application is opposed by the third, fourth and fifth Respondents only.

AMENDMENT:

[3] Prior to the hearing of this matter, I indicated to the Applicant’s counsel that the Notice of Motion, and more specifically paragraph 2.1 thereof, does not accord with the papers.

[4] The Founding Affidavit and the Deeds Office extract indicates the property as being Portion 48 (Remaining Extent) of the Farm Valchsfontein No. 33 J.S., Mpumalanga, in extent 1409.8053 hectares (“the property”). The Applicant applied for an amendment as it was clearly a typographical error and the Respondents will not be prejudiced.

[5] The application for an amendment is herewith granted and prayer 2.1 of the Notice of Motion is amended to read:

“…. Purporting to be the landowner, alternatively being authorized to, sell or allocate The Remaining Extent of Portion 48 of the Farm Valchsfontein 33 J.S., Mpumalanga (“the invaded land”);”

OPPOSITION:

[6] The application is opposed by the Third, Fourth and Fifth Respondents only. I will refer to them as (“the respondents”). The First, Second and Sixth Respondents did not file a Notice to Oppose and are not opposing this application.

BACKGROUND:

[7] The Applicant is a local municipality and the property falls within the Applicant’s jurisdiction. Respondents attempted to argue that the property falls within the jurisdictional bound of a different local authority based on the deed search attached to the founding affidavit which indicates that the property is situated within the Marble Hall municipal boundaries. That point was however never raised in the opposing affidavit, and the evidence from the bar is rejected.

[8] The land was vacant and had no buildings or structures on it whatsoever. The Respondents’ unlawful activity and unlawful occupation caused the land to be occupied.

[9] The Applicant became aware that the Respondents were selling and demarcating stands on the property. These stands were sold and demarcated and allocated to unsuspecting indigent persons.

[10] When this became know to the Applicant, it launched this application as an urgent application, but it was removed from the roll as the Applicant’s Replying Affidavit could not be commissioned in time due to riots in the area. Thereafter the matter was set down on the normal opposed role and came before me.

[11] The Respondents raised various points in limine.

LACK OF COMPLIANCE WITH RULE 41 A

[12] The first point in limine that was raised was the non-compliance with Rule 41A.

[13] The Rule provides for Form 27 to be filed, in which the party should indicate whether the matter can may be referred for mediation and/or not and provide the reasons for such refusal.

[14] The Applicant did indeed file such a notice. The point in limine is not well taken. The notice should not be brought to the attention of the Court before an argument as to costs.

[15] I am, however, of the view that although the language used in Rule 41A seems to be peremptory in nature (“shall” is used), the failure to file such a notice can never be fatal to the application or action. It is, however, not important and I will not dwell on that topic.

LACK OF URGENCY:

[16] The point in limine was overtaken by events and I did not have to decide on the point in limine.

LOCUS STANDI:

[17] The Respondents raised a point that the deponent of the applicant’s founding affidavit was not authorized to depose to it

[18] It is specifically stated that:

“the deponent is not duly authorized to depose to this affidavit in that there is no Resolution from the Municipal Council annexed that appoint and/or authorize Blessing Mafunda Mahlanga to depose this affidavit, therefore this affidavit is flawed and anarchy [sic] hence the deponent lack [sic] locus standi”.

[19] This was the first leg of the Respondent’s objection to Applicant’s locus standi that was raised. This point is bad in law as the deponent does not have to be authorized to depose to an affidavit on behalf of a party. It is not the deponent’s authority to depose to an affidavit that must be proven, but the party’s (the Applicant in casu) resolution to launch such an application. The deponent to an affidavit in motion proceedings need not to be authorized by the party concerned to depose to the affidavit.[1]

[20] The second leg of the objection to Applicant’s locus standi has a bearing to the fact that the property is owned by the Government of South Africa. So much appears from the Deed Search annexed to the Applicant’s Founding Affidavit as well as the Applicant’s own Founding Affidavit, which contains an allegation to that effect.

[21] The Respondent’s objection is that the Applicant cannot institute this application, as they are not the lawful owners of the land. Mr. Kajee, on behalf of the Applicant, spent a lot of time on this subject after the Court also raised it before he started with his argument.

[22] I am of the view that this point is not well taken. The Applicant, although not the owner of the property, is a sphere of

Government. In terms of the Constitution of the Republic of South Africa[2] and more specifically Section 239 thereof, an Organ of State means:

“(a) Any department of State or administration in the national, provincial or local sphereof government.”[Own emphasis]

[23] In terms of the subordinate legislation and more specifically the Local Government: Municipal Systems Act, 32 of 2000 (“the Systems Act”), an Organ of State means an Organ of State as defined in Section 239 of the Constitution, which then includes the Applicant.

[24] In terms of Section 4 of the Systems Act, municipal councils has the right to govern on its own initiative the local government affairs of the local municipalities. In terms of Section 6 of the Act a municipality's administration is governed by the democratic values and principles embodied in Section 196(1) of the Constitution.

[25] Subsection (2) of Section 6 of the Systems Act determines that the administration of a municipality must:

“(a) be responsive to the needs of the local community;

(b) facilitate a culture of public service and accountability amongst staff;

(c) take measures to prevent corruption.”

[Own emphasis}

[26] A municipality, in terms of the Constitution, has the right to administer local government matters listed in Part B of Schedule 4 and Part B of Schedule 5, and any other matters assigned to it by local or provincial legislation. A municipality may also make and administer its by-laws for the effective administration of the matters which it has the right to administer.

[27] Another important piece of legislation is the Spatial Planning and Land Use Management Act, Act 16 of 2013 (“the Spatial Planning Act”). In terms of Section 32 of the Act a municipality may enforce its land use scheme and pass by-laws aimed at enforcing such scheme.

[28] In terms of subsection (2) of section 32 of the Spatial Planning Act a municipality may apply to a Court for an order:

“(a) interdicting any person from using land in contravention of its land use scheme;

(b) authorizing the demolition of any structure erected on land in contravention of its land use scheme, without any obligation on the municipality or the person carrying out the demolition to pay compensation; or

(c) directing any other appropriate preventative or remedial measure.”

[Own emphasis]

[29] In terms of the National Building Regulations Act and the Building Standards Act, 103 of 1977 (“the Building Standards Act”) and more specifically Section 2 thereof, the Act applies to the area of jurisdiction of any local authority.

[30] In terms of Section 4 of the Building Standards Act, and more specifically subsection (4), no person shall without the prior approval in writing of the local authority in question erect any building in respect of which a plan or specifications are to be drawn and submitted in terms of the Act.

[31] Then, in terms of Section 21 of the Building Standards Act, in the event that such a building is erected, the municipality may apply to a Court for an order to demolish such building and if a Court is satisfied that such an erection is contrary or does not comply with the provisions of the Act or any approval or authorizations granted thereunder, the demolition may take place.

[32] From what is stated above, it is clear that the Applicant does have locus standi. Amongst others, the Applicant is obliged to take measures to prevent corruption within its jurisdiction or area and be responsive to the needs of the local community. It also has to direct any other appropriate preventative or remedial measure.

[33] The Applicant is an Organ of State and the municipal boundaries of the local municipality demarcates where it has to enforce its by-laws and the country’s laws. The Applicant is also obliged to comply with its own by-laws and laws like the Building Standards Act.

[34] The Applicant has to take preventative measures and remedial actions to comply with the country’s laws. That includes to, as an organ of state, interdicting the Respondents from contravening any of the country’s laws, and to stop corrupt activities.

[35] The actions of the Respondents contained in the Founding Affidavit is akin to corruption. It appears that the Respondents are demarcating and selling properties on the property and are putting the money so gained into their own pockets.

[36] On the Respondents’ own version they have been demarcating properties and awarding it to various people. Those people were busy putting up fences and demarcating their stands. It can only be done to live on.

[37] In the event that the Respondents receive money for the stands so demarcated and handed out, that amounts to nothing but the worst form of corruption and fraud. The Respondents does not have the authority to alienate the State’s land.

[38] There is a duty on the Applicant to prevent this as it will only result in chaos and anarchy, which our country is so used to when it comes to the occupation of land.

[39] If the Applicant does not act timeously, the occupation of the land will result in the overburdening of the Applicant’s serources. Another informal settlement will arise and it will cost the Government and the Applicant substantial amounts of money to evict the unlawful occupiers from the property in order to formalize the property.

[40] I am therefore of the view that the second point in limine is also not well-founded and good in law and is therefore dismissed.

NON-COMPLIANCE WITH THE PIE ACT:

[41] The Respondents alleges that the Applicant should have approached the Court in terms of the Prevention of Illegal Evictions and Unlawful Occupation of Land Act, 19 of 1998.

[42] As there are no occupiers that are residing in the shacks on the property as per the undisputed evidence of the Applicant’s deponent, and therefore this Act does not find application. The relief that the Court intends granting will also exclude any occupiers that reside in any structure on the property. This is also a point not well taken.

NON-JOINDER

[43] Respondent finally states that the Applicant should at least have joined the Government, seeing that the property belongs to them. They argue that the non-joinder of the Government is fatal to Applicant’s case.

[44] I am not of the same view. A person has a direct and substantial interest in an order that is sought in proceedings if the order would directly affect such a person's rights or interest. In that case the person should be joined in the proceedings. If the person is not joined in circumstances in which his or her rights or interests will be prejudicially affected by the ultimate judgment that may result from the proceedings, then that will mean that a judgment affecting that person's rights or interests has been given without affording that person an opportunity to be heard. That goes against one of the most fundamental principles of our legal system. That is that, as a general rule, no court may make an order against anyone without giving that person the opportunity to be heard[3].

[45] “This view, concurred in by FAGAN, J.A., who was responsible for the reasons for judgment in the Amalgamated Union case, might be legitimately employed to attempt to define somewhat closer the meaning to be assigned to 'a direct and substantial interest' as used in the earlier Appellate Division decision. Where such a sub-tenant is sued by an owner for ejectment, the defendant relies on a right of occupation derived from the lessee whose rights, in turn, depend upon his contract with the lessor. In the proceedings by the lessor against the sub-lessee the adjudication upon the rights inter partes involves also the rights of the lessee who derives his rights directly from the lessor while the sub-lessee claims his rights mediately or indirectly also from the lessor. Where, however, the lessor sues his lessee, any rights of a sub-lessee are not in any way in issue in the proceedings; the sub-lessee has no 'legal' interest in the contract between the lessor and the lessee, although he may have a very substantial financial or commercial interest therein which may be prejudicially affected by the F judgment. If this distinction be correct, it immediately explains why a plaintiff need not join a sub-lessee on the one hand and why intervention was allowed, or joinder ordered, on the other hand in such cases as…”[4]

[46] In this matter the Applicant’s conduct is not prejudicial to the Government’s interests at all, and to the contrary in its best interest by protecting the land from being invaded. Further the Respondents are “selling” the stands on land that does not belong to them at all. One can only imagine the social repercussions that will belie the Applicant and the Government once the development of the property starts as intended and the “purchasers” of the land confronts Applicant or Government for repayment of the money spent purchasing the land and the costs of developing it. The Respondents will most probably have disappeared and left the Applicant with the dilemma. The innocent, indigent “purchasers” will then hold the Applicant responsible for not acting against the Respondents when they became aware of the fraud and corruption.

[47] This point is also not well taken and dismissed.

Merits

[48] From the Applicant’s Opposing Affidavit the following is pertinent and not in dispute:

[48.1] That the property is not owned by any of the Respondents;

[48.2] That the Respondents have been allocating stands on the property, and intend doing so in future. This appears from paragraphs of the Answering Affidavit:

Paragraphs 16 of the Answering Affidavit:

“… Since 2020 that we have been allocating stand [sic] on the land in dispute ….”

“… Ever since [sic] that day we have been allocating stands up until January 2021 …”

Paragraphs 21 of the Answering Affidavit:

“… the last time we allocate stands was in January 2021 …”.

[49] It is therefore clear that the Respondents admit that they have been allocating stands.

[50] This was done after they addressed two letters to Cogta – Cooperative Governance and Traditional Affairs in Mpumalanga – in which they state that the land belong to their forefathers and that they will, if they do not hear from the Department, start demarcating and allocating stands for the purpose of residence. The letter annexed to the Respondents’ Opposing Affidavit, marked Annexure “PO3” is clear in that regard. It states the following:

“We are acting on behalf of Matlala Traditional Council Leadership and it is our client’s instruction to write as follows.

Matlala Traditional Council Leadership intends to demarcate and allocate stands for their people on Siyabuswa 1A Extension 1.

As a matter of urgency, our client is prepared to demarcate and allocate stands for the purposes of residence.

Further be advised that the said allocation of stand [sic] shall take effect in the next coming week.

We trust you will find the above in order.”

[51] Mr. Tshidzumba, appearing on behalf of the Respondents, informed me that no feedback was received from the relevant State Department and his clients unilaterally and without any permission started allocating stands.

[52] It is further not in dispute that a carwash and a brick manufacturing business was started on the property by the Sixth Respondent. No permission was given to the Sixth Respondent, who conducts these businesses to erect structures on the property to conduct this business from.

[53] According to the Applicant’s inspector, when he inspected the land, none of the structures was occupied by persons residing in the structures. The Respondents however allege that some of the structures are used to live in without giving any evidence to support the vague allegation. They are apparently “in control” of the property and one would have expected an affidavit by such occupiers using the property as a home.

[54] From the Respondent’s Opposing Affidavit and an application of the Plascon Evans principle it is clear that the Applicant is entitled to the relief sought.

[55] As discussed above, the Applicant has locus standi and has a clear right to expect individuals in its jurisdiction not to transgress any of the laws of the country or by-laws.

[56] Currently the building of structures on the property is in breach of the provisions of the Building Standards Act and, as money is exchanged for the property that is allocated to the individuals, it is clear that corruption has also taken place here.

[57] The Applicant has a clear right to expect of the individuals residing within its jurisdiction to respect the law of the land and that of the Applicant.

[58] The fact that the property are sold to vulnerable members of the community who typically utilize their entire livelihood savings to take part in the Respondent’s illegal allocation of land should not be tolerated by Applicant or this Court.

[59] If the Applicant eventually decides to evict any resident, who has acquired the land from the Respondents, from the property, such an individual will end up without his money and without any land.

[60] The land has been earmarked for constituents who have applied for housing. That much appears from the Replying Affidavit and the annexures thereto.

[61] The Applicants allege that they were provided with permission by the Applicant’s mayor to proceed with the allocation of stands and refers to an agenda of a meeting to be held at the Ga-Phaahla Councillors Office 18 November 2020. The agenda says absolutely nothing and does not provide any permission to the Respondents to subdivide the land and to allocate it.

[62] To the contrary, annexed to the Replying Affidavit, one finds the minutes of the meeting referred to by the Respondents. In terms of the minutes of the meeting the Executive Mayor, Councillor Mathabe stated:

“The Municipality will lead the allocation process after all requirements have been met.

The community leaders must consult the Municipality to finalize the allocation process strategy.

The Municipality will inform the members of the community to come to the Municipality for stands allocation.”

[63] The Respondents’ statement that they were provided permission to allocate the stands is a blatant untruth.

[64] The Respondents have already unlawfully allocated land which has already resulted in an injury committed both to the Applicant and to those to whom the land was allocated. The Respondents have not provided any indication that they will not continue to allocate any further land and accordingly further harm may occur.

[65] The prejudice that the Applicant might suffer if the Respondents do not desist from allocating land unlawfully, will be inconceivable and cannot be cured by an award of damages. The general public, who are already indigent in nature and who are taken in by the Respondents’ misrepresentations, will be severely prejudiced, leaving the public out of pocket.

[66] The Applicants clearly have no other remedy but to approach this Court in terms of Section 21 of the National Building Regulations Act and the Building Standards Act, 103 of 1977 to prevent any further construction on the property and to have the current structures demolished.[5]

[67] The Applicant attempted to solicit undertakings from the Respondents, but they failed to provide it and relied on a blatant lie to justify their illegal conduct.

[68] The Court is therefore of the view that the Applicant must succeed in its application.

COSTS:

[69] Costs should follow the event. Mr. Kajee insisted on attorney and client costs, an order I would not consider.

[70] I therefore make the following order:

1. That the First to Fifth Respondents are interdicted and restrained from allocating any stands or land on Portion 48 (Remaining Extent) of the Farm Valchsfontein No. 33 J.S., Mpumalanga (“the property”) to any person;

a. Fraudulently selling, alternatively allocating portions of the property;

b. Using or permitting the use of the land through or by any other person/s for the purposes which are not permitted under the Land Use Management Scheme, or using the land for residential purposes or any unlawful purpose-

2. That the unoccupied structures (in which there are no residents), objects or buildings appearing on the property, be forthwith removed by the Respondents within 10 (ten) days of granting of this order, failing which the Applicant will be entitled to demolish it forthwith;

3. That the Third, Fourth and Fifth Respondents be ordered to pay the costs of this application jointly and severally, the one to pay the other to be absolved;

4. No order of costs is made against the First, Second and Sixth Respondents.

DATED AT MIDDELBURG, MPUMALANGA ON THIS 21st DAY OF JULY2021.

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

REPRESENTATIVE FOR THE APPLICANT: ADV KAJEE

INSTRUCTED BY: KA – MBONANE AND ASS INC. - athisten@kclaw.co.za

REPRESENTATIVE FOR THE RESPONDENT: MR TSHIDZUMBA –

INSTRUCTED BY: SADIKI ATTORNEYS admin@sadikiattorneys.co.za

DATE OF HEARING: 20JULY 2021

DATE OF JUDGMENT: 21JULY 2021

[1] Ganes & Another v. Telecom Namibia Ltd, 2004(3) SA 615 (SCA) at paragraph 19.

[2] Act 108 of 1996 (“the Constitution”)

[3] Snyders v De Jager (joinder) 2017 JDR 0051 (CC) para 9.

[4] Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) p 167.

[5] Lester v. Ndlambe Municipality & Another, 2015(6) SA 283 (SCA) and BSB International Link CC v. Readam South Africa (Pty) Ltd & Another, 2017(4) SA 83 (SCA).