Emalahleni Local Municipality v Unlawful Occupiers of Erf 9[...] K[...] G[...] Extention 16, Emalahleni and Another (5451/2024) [2025] ZAMPMHC 2 (16 January 2025)

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

CASE NO: 5451/2024

(1) REPORTABLE:NO

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED: YES

DATE 16/01/2025

SIGNATURE

In the matter between:

EMALAHLENI LOCAL MUNICIPALITY

APPLICANT

and

UNLAWFUL OCCUPIERS OF ERF 9[...] K[...] G[...] EXTENTION 16, EMALAHLENI

FIRST RESPONDENT

ASANTEE HOLDINGS (PTY) LTD

SECOND RESPONDENT

JUDGMENT

MALANGENI AJ

Introduction

[1] On 22 October 2024, the applicant approached the court on ex parte basis seeking the following relief against the Unlawful Occupiers of ERF 9[...] K[...]-G[...] extension 16 (respondents):

“1. The forms and service provided for in the Uniform Rules of Court are dispensed with and this matter is heard as an urgent application.

2. A Rule Nisi is hereby issued, calling upon the Respondent and any interested party to show cause, if any, on a date determined by this Honourable Court, why the following order should not be made final:

2.1. The Sherrif of this Honourable Court is directed to seize and take into his possession, custody and control, all equipment and assets used for mining related purposes which is situated on ERF 9[...], Extension 16, K[...]-G, Emalahleni, Mpumalanga (the Applicant’s property) and as set out and situated in the pictures annexed to the founding affidavit as “FA3”

2.2. All items taken into the sheriff’s custody, as mentioned in 2.1 above, are to be stored at the Applicant’s Fleet Storage Facility and stores situated at corner Beatty Avenue and Woltemade street, Emalahleni, or such other suitable location of the Applicant, pending the final determination of the proceedings referred to in paragraph 3 below.

2.3. The respondent is interdicted from participating in any mining or related activities on the Applicant’s property.

2.4. The respondent must remove all structures and fencing, temporary or otherwise, which are erected on the Applicant’s premises within thirty days of order, failing which, the Applicant will be entitled to demolish or remove the structures and fencing without further notice to the Respondent.

2.5. The Respondent is interdicted from attending at the Applicant’s property, save for carrying out paragraph 2,4 above, which it shall carry out upon notice to the applicant, through its attorneys of record.

2.6. The costs of this application are to be borne by the Respondent, together with any interested party which opposes these proceedings, on scale C, as provided for in uniform Rule 67A.

3. Prayer 2 (inclusive of 2.1 to 2.5) is to endure pending the determination of proceedings to be instituted by the Applicant, against the Respondent and upon its election, any other interested party which opposes the relief in these proceedings, within 45 days of the date of this order.

4. Service of this order and this application is to be effected by the sheriff by affixing same to any structures and fences erected on the Applicant’s property, and serving same on any person located on the Applicant’s property, who is in control of, or may be securing or overseeing, the items listed in 2.1 above.

5. Attention is drawn to the content of the Uniform Rules 6(8) and 6 (12)(c) of the Uniform Rules of Court, which provide that any person against whom an order is granted ex-parte, may anticipate the return date upon delivery of not less than 24hours’ notice and that a person against whom an order was granted in their absence in urgent application may, by notice, set down the matter for reconsideration of the order.”

[2] This application was presided by my brother Vele AJ who granted it with the return date being 9 December 2024.

Factual Background

[3] On the return date, the matter served before me. From the reading of the papers, I noticed that there was a notice of intention to oppose coupled with the answering affidavit. Such opposing papers came from a party not cited in the original application, being Asante Holdings (Pty) Ltd (Asante). Asante refers to itself as a second respondent. I am mindful of paragraph 2 of the ex parte application. This paragraph calls upon the respondent and any interested party to show cause, if any on 9 December 2024, why the order cannot be made final.

[4] I then took that the second respondent is one of the parties called upon to show cause and further that the application was opposed therefore it had to go to the opposed roll.

[5] On the return date, the legal representatives for the second respondent or interested party was before court, ready to argue for the discharge of the Rule Nisi. This took me by surprise as I intended to refer the matter to the opposed roll.

[6] The legal representative for the applicant had already secured a date for opposed roll in 2025. The legal representatives for the second respondent indicated that he would anticipate such a date. From that good attitude, it was clear that he would love to have the matter finalised as speedily as possible.

[7] I then looked at the schedule or roll of December 2024 and found that the 18 December 2024 was not a busy day and decided to accommodate this case on that day in the interests of justice.

[8] The following order was then issued:

“1. That a Rule Nisi is hereby extended to the 18th of December 2024.

2. The Applicant is ordered to file its answering affidavit on or before 13th of December 2024. (I made a mistake herein; I meant a replying affidavit).

3. The applicant shall file its heads of arguments on or before the 17th of December 2024.

4. The second respondent shall file its heads of arguments on the 9th of December but shall have leave to file supplementary heads of arguments if any, on the 18th of December 2024.

5. No order as to costs.”

[9] In respect of item 4 of the order, I issued it in that fashion simply because the second respondent was already in possession of the heads of arguments and ready to file the same.

[10] The order in question was complied with and the matter argued. In my judgment, I have referred to some extent to the authorities referred to by the parties.

Issues

[11] The following are issues to be determined:

a. The confirmation and or discharge of the interim order.

b. The urgency of the application.

c. Locus Standi of the second respondent

d. Ownership of the seized assets.

e. Faceless respondents.

[12] I will not deal with these issues chronologically. Before progressing further with this judgement, I need to mention that the second respondent did not anticipate the interim order in terms of Rule 6(8) of the Uniform Rules as it is this court that set down the matter on its own accord to the 18 December 2024. Furthermore, the second respondent is not asking for reconsideration of the order in terms of rule 6(12)(c) of the Uniform Rules in that no notice filed in this regard.

Applicable law

[13] The application under consideration was moved on urgent basis. Rule 6(12)(a) provides that in urgent applications the court or a Judge may dispense with forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules as it deems fit). Further, rule 6(12)(b) provides that in every affidavit filed in support of any application under paragraph (a) of the subrule, the applicant must set forth explicitly the circumstances which is averred render the matter urgent and the reason why the applicant could not be afforded substantial redress at a hearing in due course.

[14] In Commissioners, SAR services V Hawker Aviation Partnership and Others[1] it was held that “urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substances, and is not a prerequisite to a claim for substantive relief”

[15] In Mogalakwena local Municipality v The Provincial Executive Council, Limpopo and Others[2] the issue of urgency and the self-created one were dealt with as follows:

“it seems to me that when urgency is an issue, the primary investigation should be to determine whether the applicant will be afforded

substantial redress at a hearing in due course. If the applicant cannot establish prejudice in this sense, the application cannot be urgent, once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): whether the Respondents can adequately present their case in the time available between notice of the application to them and the actual hearing, other prejudice to the Respondent’s and the administration of justice, the strength of the case made by the Applicant and any delay by the Applicant in asserting its rights. This last factor is often called, usually by Counsel Acting for Respondents, self-created urgency”.

[16] Locus standi refers to capacity to institute proceedings or to have proceedings being instituted. For one to have locus stand, he or she must have substantial interest in the matter. In United Watch and Diamond (Pty)Ltd v Disa Hotels Ltd[3] the Court stated the following:

“To establish that one has Locus Standi in Judicio, one must show, … that he has interest in the subject matter of the judgement or order sufficiently direct or substantial …”.

[17] In Amalgated Engineering Union v Minister of Labour[4] it was held that:

“If a Party has a direct and substantial interest in the order the court might make in proceedings, or if such order cannot be substained or carried into effect without prejudicing that party he is a necessary party and should be joined in the proceedings.”

[18] On the same breath, this issue was furthered in Rapotsonyane V Sekhukhu Syndicate[5]where the court followed what was said in Moreane Syndicate and Others v Loeto[6] that “Locus Standi is Fundamental to due process without it the proceedings are invalidated”.

[19] The onus to prove that the respondent party is the owner of the assets it claims rests with it. In Ebrahim v Deputy Sheriff, Durban and Another[7] the court held that:

“The test whether a claimant has discharged the onus of proving his ownership to movable property which is not in his possession is whether, in the result, the probabilities are balanced in his favour. The strength of the evidence which he has to produce to succeed depends upon the circumstances of the case. In an interpleader suit, for example, the judgement creditor maybe at a grave disadvantage because he is not in a position to adduce evidence to rebut that of a claimant who says that the disputed property is his, although he agreed to let the judgement debtor have possession of it. Apart from other considerations, the court would no doubt in such a case require the claimant to produce clear and satisfactory proof of his ownership. On the other hand, where the source of rebutting evidence is available to and is utilised by the party who disputes the claimant’s claim, the position appears to me to be different; for then the disadvantage to which I have referred largely disappears. I might mention one further factor which might be of particular importance in deciding whether the claimant’s evidence should be approached with more than normal caution, and that is the nature of the article of which the ownership is in dispute”.

[20] We are dealing with motion proceedings, the assets so claimed are movables so proof ownership would be attached to the affidavit. In Assurance Co of SA Ltd v Van Zyl and Another[8] the court stated that:

“Generally, in motion proceedings, the documents annexed to an affidavit are tendered as evidence in support of certain allegation contained in the affidavit itself, or as evidence to prove that certain steps had been taken. In any event such documents can only be tendered as evidence, and as such are subject to the same rules of evidence governing their admission in trial proceedings”.

[21] The second respondent referred to the respondents as faceless respondents as they cannot be identifiable. In this regard, I was referred on pages 17 and 18 of heads of arguments to various cases namely, Kayamandi Town Committee V Mkhwaso[9], Illegal Occupiers of Various Erven Philippi v Monwood Investment Trust Company (Pty) Ltd[10] and City of Cape Town v Yawa and Others[11].

[22] On the question of identifiable parties to a Lawsuit, Wilson J in Department of Social Development v Non-Profit Organisations Registered[12] referred to Kayamandi Town Committee V Mkhwaso[13] where Conradie J emphasised that court orders may only be granted against clearly defined parties who can be identified in advance of institution of lawsuit. This does not mean that each party must be individually identified. Persons may be joined to a Lawsuit as members of a group (for example, all the occupiers of a particular erf are regularly made parties to eviction proceedings). However, where they are not individually identified, the group compromising the parties to the Lawsuit must be clearly defined and easily ascertainable, such that notice can meaningfully be given to the members of the group in advance.

Parties’ submissions

[23] The principal submission by parties is mainly covered in their heads of arguments. The applicant argued that it must be observed that Asante Holdings (Pty) Ltd has incorrectly cited itself in these proceedings as the second respondent, apparently in an attempt to distance itself from the respondent who is described as the unlawful occupiers of the applicant’s property. Further, a mere say so is not enough to prove its ownership in this instance of the seized assets and did not provide full details of its ownership, such as engine Numbers, registration Numbers or Vin Numbers of the equipment or machinery.

[24] On the other hand, the second respondent contends that to qualify for an audience in the urgent court, there is a test that an applicant must meet, emanating from Rule 6(12). Where a matter lacks urgency, the court may, for that reason alone, strike the application from the roll. Further, the founding affidavit does not make a full disclosure of all facts. According to the second respondent, this is concerning because of trite principles in our law. The first being the duty of making a full disclosure of all relevant information in ex parte applications and the second being that an applicant should make out its case in the founding affidavit because an applicant stands or falls by its founding papers. In the supplementary heads of arguments, the second respondent dealt at length with an anti-dissipation interdict.

Analysis

[25] Although the second respondent has raised numerous issues against this application, I am of the view that, it is not formally before court. The second respondent claims not to be part and parcel of the party against which the proceedings have been instituted by the applicant. On that ground alone, if it is an interested party in the proceedings, it was supposed to move a substantive application for a joinder in these proceedings. Furthermore, the second respondent has a claim over the assets seized by the applicant. In respect of this claim, the second respondent was supposed to move a separate application for this cause. I maybe wrong, that is why I proceed to deal with each aspect raised by the second respondent.

[26] I differ with the second respondent’s arguments that respondents are faceless and unidentifiable. Our courts through the country are overwhelmed with eviction applications. In most instances, the respondents are a group of people who just illegally occupy the property of another person. Eviction of such people becomes successful.

[27] Each case must be assessed on its own facts. This view gains support from the cases referred to by the second respondent namely, The Kayamandi Town Committee V Mkhwaso and Illegal Occupiers of Various Erven Philippi v Monwood Investment Trust Company (Pty) Ltd.

[28] The facts contained in the City of Cape Town v Stacey Yawa and Others differ materially from the case under consideration. In that case of Dlodlo AJ dealt with all the other respondents except the twentieth respondent. Budlender AJ is the one who dealt with the twentieth respondent. He stated that:

“[H]owever, it seems to me that there is a much more fundamental problem with this aspect of the application. The person who compromises or might compromise the twentieth respondent, namely person intending to unlawfully occupy the ERF, are not in any real sense an ascertainable group. In this instance there is not an “Identified or identifiable group of persons who are properly before the court and against whom an effective order can be made”.

There is no prospect that they will be identified during course of the proceedings, as happened in the Communicare case. The identity of the members of the Twentieth Respondent will change from day to day. Some of those currently intending to occupy the land, may subsequently decide to do so”[14]

[29] In City of Cape Town v Stacey Yawa and Others, the respondent is a group of unidentified people. Whereas in the case under consideration, the respondent (being unlawful occupiers of ERF 9[...] K[...]-G[...] extension 16) are ascertainable and identifiable. Their names are contained on sheriff’s return of service appearing on pages 36 and 37 of the indexed bundles.

[30] The other issue raised by the second respondent in its supplementary heads of arguments is the anti -dissipation. To me the interdict under consideration cannot be referred to be an anti-dissipation interdict. It does not have any element of concealing or dissipating any monies and further does not have any intention of hiding or concealing assets.

[31] In paragraphs 34 and 35 of the founding affidavit (page 12 of the indexed bundle), the applicant states the following:

a. It is in the applicant’s best interest that the mining equipment and vehicles be safeguarded, as this equipment will need to be realised in order for the applicant to recover the damages sustained to its property.

b. The Applicant will utilise the seized mining equipment and vehicles to ascertain the identity of the Respondent and any other who was involved with the illegal mining activities on the Applicant’s property.

[32] The meaning of an anti-dissipation interdict was made clear by the Supreme Court of appeal in KSL v AL[15] where it was stated that:

“an anti-dissipation interdict may be granted where a respondent is believed to be deliberately arranging his affairs in such a way so as to ensure that by the time the applicant is in a position to execute judgement, he will be without assets or sufficient assets on which the applicant expects to execute. Its purpose is to preserve the assets which is in issue between the parties. The onus is on the Applicant for such an interdict to stablish the necessary requirements for the grant of the interdict”.

[33] In circumstances of this case, nothing is concealed or hidden. The items seized are known as to where they are kept. Although the name of the second respondent does appear on the Sheriff’s return of service (pages 36 and 37 of the indexed bundle), it distances itself from being the unlawful occupier and illegal miner. It avers instead that; it hires the machinery for mining purposes. In paragraph 4.2 of the answering affidavit, the second respondent states that the second respondent and any of its predecessors in ownership of the equipment or employees never engaged in any illegal mining activities. The second Respondent is in the business of mining plant and equipment hire and not mining.

[34] Again, the second respondent dismally failed to produce any proof of ownership of the assets it claims. The onus lies with the second respondent to convince the court in the form of a documentary proof such for example that it is the owner of the property and with such a reason, it has a better title to the property. No title in any form has been brought before this court.

[35] I cannot find any justifiable reason/s to order the release of the assets claimed by the second respondent. If I order such, the assets in question would land on wrong hands or wrong claimant.

[36] This court cannot find any established link between the relief sought by the applicant and the claim by the second respondent. The second respondent’s title in these proceedings is questionable. Infact, it does not exist at all. Second respondent does not belong to the other respondents (The unlawful occupiers) and could not prove any relationship between itself, and the property seized by the Applicant. Second respondent lacks capacity both on principle (as a party to the proceedings) and on authority (as a claimant to the seized property).

[37] The second respondent came before this court to oppose this application bare-handed or without valid reasons. I do not understand the basis for opposing this application. To me, it opposes just to inconvenience the applicant.

[38] This is an application that was moved ex parte. My colleague by granting the application was satisfied with urgency. The applicant alleges that the respondent (Unlawful Occupiers) is mining in its property illegal, such conduct alone is being unlawful therefore the interdict is lawful.

[39] I do not see any reason as to why I should not make the interim order, a final one. The second respondent ‘claim is without a substance and stands to be dismissed. A party stands or falls by its papers.

[40] It is trite that costs follow the successful party. I find no reasons to deviate from that general rule. On the 9 December 2024, I ordered no order as to costs.

Order

[41] In the result, I make the following order:

1. The point in limine of locus standi is upheld.

2. The interim order dated 22 October 2024 is hereby confirmed and made final.

3. The second respondent is ordered to pay costs, inclusive of counsel’s fees on scale B.

M MALANGENI

ACTING JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION, MIDDELBURG

Appearances:

For Applicant: Advocate Jagga Instructed by: KA-Mbonane Cooper Attorneys For Second Respondent: Advocate R van Dyk Instructed by: Van Rensburg Rakwena Attorneys Date of the hearing: 18 December 2024 Date of delivery: 16 January 2025

[1] [2006] ZASCA 51; 2006 (4) SA 292 (SCA) at para 9.

[2] (2014) JOL 32103 (GP) at para 63-64.

[3] 1972 (4) SA 409 (C) at 415A.

[4] 1949 (3) SA 631 at 637

[5] 2006 (2) BCR 607 (CA)

[6] 2005 (2) BLR 37 (CC). See also Firm-O-Seal CC V Prinsloo & Van Eeden Inc. and Another 2024 (6) SA 52 (SCA) (27 June 2023).

[7] 1961 (4) SA 265 (N)

[8] 1971 (1) SA 100 (E) at 105A-E

[9] 1991 (2) SA 630 (C)

[10] (2002) 1 All SA 115 (C)

[11] [2004] 2 All SA 281 (C).

[12] [2024] ZAGPJHC 253 at para 10 (18 March 2024)

[13] Above footnote 9 at 634G-J.

[14] Above footnote 10.

[15] [2024] ZASCA 96 at para 15(13 June 2024).