Isimangaliso Wetlands Park Authority and Others v Mthembu and Another (3188/2010) [2010] ZAKZDHC 29 (15 July 2010)

17

IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO 3188/2010

IN THE MATTER BETWEEN;

ISIMANGALISO WETLAND PARK AUTHORITY FIRST APPLICANT

THE KWAZULU-NATAL NATURE CONSERVATION

BOARD SECOND APPLICANT

THE MINISTER OF WATER AND

ENVIRONMENTAL AFFAIRS THIRD APPLICANT

and

MADOLWANE MTHEMBU FIRST RESPONDENT

SIMON MBALANE TEMBE SECOND RESPONDENT

JUDGMENT

NICHOLSON J

The parties

The first applicant is the iSimangaliso Wetland Park Authority, previously known as the Greater St Lucia Wetland Park Authority, the name change was effected by Government Notice 438 of 11 May 2007, an authority pursuant to section 9 of the World Heritage Convention Act, 1999 (‘the World Heritage Act’), which has authority over the iSimangaliso Wetland Park. (‘The park’).

The second applicant is the Kwazulu-Natal Nature Conservation Board, a board established in terms of section 4 of the KwaZulu-Natal Nature Conservation Management Act, 1997 (‘the KZN Nature Conservation Act’), a juristic person.

The third applicant is the Minister of Water and Environmental Affairs of the Republic of South Africa.

The two respondents are adult male businessmen who reside in the KwaTembe Traditional Council area of Kosi Bay.

The applicants were represented by Mr Marais SC. The respondents have had a succession of legal representatives and at the final hearing of this matter were represented by Mr Choudree SC and Mr Manikam.

Background of this application

The park is a World Heritage Site, as contemplated in section 1 of the World Heritage Act. In terms of section 13(2) the first applicant is obliged inter alia to take effective and active measures for the protection, conservation and presentation of the cultural and natural heritage of the park. In terms of legislation the first applicant is the management authority and protected area manager of the park and the second applicant has been appointed conservation park manager in terms of a management agreement.

In terms of a plethora of statutes and regulations entrance, residence, development, construction and farming is prohibited without written permission.

The damage or removal inter alia of plants, vegetation and the degradation of the environment is also prohibited in numerous sections of the said legislation and regulations.

Over time the respondents and other illegal developers have cleared plants and vegetation and constructed tourist resorts and holiday accommodation in the heart of the park.

During argument there was some doubt as to whether the sites upon which the respondents effected constructions were within the park and as a result thereof various Government Gazettes, including Notice 4477 of 2000 and Annexure 1 thereto were handed in which it is established conclusively that the said sites fell within the relevant area.

Because these developments were illegal in terms of a number of statutes and provisions various applications were launched against the said developers in 2009.

On 25 September 2009 the applicants sought and obtained an order against the respondents, in the form of a rule nisi, which was confirmed on 23 November 2009.

In summary form the said order interdicted and restrained the respondents from continuing any construction work in the park, removing or destroying any plants or vegetation or conducting any commercial or tourism activities.

In addition the respondents were directed at their cost to commence by not later than 30 April 2010 and to complete by 1 June 2010 the removal of all structures and the rehabilitation of the site to its pristine state.

Furthermore, in the event of respondents failing to remove the structures and rehabilitate the area, the first and/or second applicants were

entitled to carry out the removal and rehabilitation at the respondents’ cost. The order was to the effect that respondents be evicted from 1 June 2010 and they were directed to pay the costs.

The respondents were represented by counsel on 23 November 2009 when the rule was confirmed and it was served on both of them. A letter has been put up by their erstwhile attorneys confirming that they were present in court when the rule was confirmed and consequently were aware of the orders granted.

The applicants have alleged that the said orders have been flouted and have brought an application for a declaration that they are in contempt of court and committing them to prison for three months.

In addition the applicants seek an interim interdict that they be restrained from inter alia threatening or assaulting employees of the first and second applicants in the lawful execution of their duties, and costs on the attorney and own client scale.

When the matter first was brought before me I made an order with relation to the filing of certain supplementary affidavits and granted interim relief, relating to the allegations of threats and assaults.

The respondents have filed supplementary affidavits and the applicants have replied to these.

Requirements for a contempt application

The applicants must prove the requisites for a contempt application; firstly, the court order, secondly, service of the order, and finally; non-compliance and willfulness in the form of mala fides, beyond reasonable doubt.

See Fakie NO v CCll Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 SCA at 344 H-J.

I will deal with these requirements seriatim. There was clearly an order of court which was clear and unambiguous in its terms.

There was clearly service of the order and the returns of the deputy sheriff are prima facie proof thereof. The returns indicate that the orders were explained to the respondents by the sheriff.

There is some suggestion in the heads of argument though not mentioned in the affidavits that the respondents are not familiar with English but this must clearly be rejected. They have signed affidavits in English and annexed no affidavits by interpreters or translators of the said affidavits.

I have referred to the letter by their attorney, which is proof they were in court at the time and their attorney and advocate would have explained the order to them. There is a long history of the orders being sought by the applicants and it is inconceivable that the respondents did not understand the orders. There is no merit in this argument.

Has there been willful and mala fide non-compliance?

The next question relates to whether there has been willful, mala fide non-compliance with the court order.

The applicants allege that a conservation manager Leonard Zulu conducted a routine inspection on 26 February 2010, and observed a new type of building being constructed in three sections at the said site.

When Zulu spoke to the person in charge of construction, he was told that he was acting on the instructions of second respondent in carrying on the said construction.

Peter Hartley, the senior conservation compliance manager, visited the site on 3 March 2010, and concluded from his observations that the work must have commenced during the last week

of February 2010. It had not been present when he last visited the site in December 2009. He actually saw labourers in the process of construction.

A series of photographs are put up showing the building and it is clear that a wall has been partially erected. It is transparent that the cement in certain parts is recent as it is darker in shade than the dried cement. I agree with Mr Marais that one can virtually smell the odour of drying cement.

The respondents were required to address the point of substance directly and not evasively. They submit they had permission to do so but deny that the structure was erected after the court order. The respondents do not explain what the labourers were doing on the site nor do they provide any explanation for the observations of the deponents to the applicants’ affidavits. I agree with Mr Marais that these are fictitious issues of fact which have been raised to frustrate the applicants recourse by way of application.

See Nampesca (SA) Products (Pty) Ltd v Zaderer and others 1999 (1) SA 886 CPD at 893 A-C.

Prima facie such building or the continuation of such building is a willful and mala fide breach of the court order. The facts speak for themselves and there is little room for mistake as the continuation of the construction could not have been inadvertent or negligent.

If there is any doubt on this question a perusal of the history of the matter puts that to rest. It is clear that there have been warnings over the past thirteen or more years. These include aborted prosecutions where it was assumed that respondents had no mens rea and letters from second applicant and their attorneys. These threaten court action if the construction work is undertaken or continued.

There are reports of a very hostile attitude on the part of respondents when park rangers visited the sites in question. John Tinley has filed an affidavit saying that from the beginning i.e. 1995 there has been animosity and after a letter of warning a meeting was held at which he and Mr Mfeka were threatened with death.

A report annexed from the Sunday Argus of 13 August 2006 quotes second respondent saying

‘The (authorities) are saying they will throw us in jail for trespassing and demolish the camp. We say … Just go to hell… Bring the bull dozer. I’ll shoot the driver… They’ll have to enter over my dead body – drive over me before they demolish this camp.’

On 2 March 2007 the respondents warned a ranger Mathenjwa that they would not desist from their activities and would resort to killing rangers even if it meant their own death.

They insisted, in a letter dated 20 May 2009, that they would continue developing their land even if they were arrested. This was in response to a compliance letter sent by third applicant.

On 15 February 2010 the applicants entered the area to demolish and rehabilitate other illegal developments, pursuant to legal orders having been granted. The second respondent parked his vehicle on a narrow bridge giving access to the area and refused to move for six hours until force had to be used. In this endeavour it is clear he was making common cause with other malefactors and is strongly indicative of his own feelings in this regard.

Apart from what I have enumerated there are a number of other factors and considerations which are also consistent with a single-minded and determined resolve to carry on with their business ventures whatever the consequences. It would be superfluity to deal with them as well.

Given that there has to be proof beyond reasonable doubt that there has been non-compliance the question remains whether their actions and attitudes are capable of any other reasonable inference than the one which suggests itself that they are deliberately, willfully and mala fide breaching the court order I have mentioned.

Is there a competing inference to be drawn? Such an inference would have to place an innocent gloss on a series of serious confrontations with legal authority. The evasive denial of further building, coupled with their mistaken sense of entitlement and aggression is not capable of any other construction.

I can only conclude that the applicant have shown beyond reasonable doubt that the non-compliance with the court order was willful and mala fide.

The respondents have raised a plethora of points relating to locus standi, the geographic position of the site, lis pendens and res judicata to mention but a few.

Although there have been indications that an appeal would be launched against the confirmation of the rule nothing has apparently transpired in that regard. The order was not contested, in the sense that no affidavits were filed, so it is difficult to imagine on what basis such an appeal could be successful.

There is also a suggestion that an application will be made to lead further evidence to lay the foundation for the points raised at this late stage. That has not been done and cannot influence the decision that court has to make in regard to this application for contempt.

Even if it was launched in the future it would have to entail an explanation why the points have not been raised before. This might be difficult given the lengthy history of the matter.

Despite the fact that the points raised should have been raised when the declarator was first sought they do not have merit and can be disposed of fairly briefly.

The permission to occupy

The applicants allege that prior to first applicant’s establishment the right to occupy the park could only be validly acquired by a written permission to occupy (PTO) issued by the KwaZulu Government or by a concession agreement concluded with first and/or second applicant.

The respondents claimed such permission in the form of a PTO but they could not produce any proof there of or any concession agreement.

In the respondents’ opposing affidavit to the contempt application they maintain they had authority and put up an application for a trading site dated 26 March 1995. Apart from the fact that this is only an application and there is no proof that it was successful, it does not adequately identify the site where it is to be conducted. Although the magistrate recommends its grant there is still no proof that it ever was.

In addition the approval and recommendation of the Tembe Tribal Authority dated 16 April 1997 does not carry the day.

There is an affidavit by Bhekani Shabalala, the General Manager of Land Use Management at the Department of Local Government and Traditional Affairs to the effect that he has searched the records and found no such PTO.

Eliakim Ndlovu is a conservation manager employed by Ezemvelo KZN Wildlife, who knows the respondents. He confirms that no such PTO was ever granted to respondents.

In any event given the situation of the site in a coastal forest reserve, State forest and partially in Admiralty Reserve and part of a nature reserve meant that a PTO could not be granted.

Joinder of Chief Isaac Tembe

The respondents have taken a further point in limine that Chief Isaac Tembe ought to have been joined on the basis that he had knowledge of a PTO with regard to the commercial activities of the respondents.

Once it is established that there is no such PTO the need for joinder of the chief falls away. The points relating to the non-joinder of the Tembe Tribal Authority and Regional Lands Claim Commissioner similarly have no merit.

Lis pendens and res judicata

Applicants have annexed to their affidavits previous proceedings under case no 532/04 and suggest that, as those proceedings have not been concluded, the plea of lis pendens is appropriate.

In the alternative they plead that if the proceedings have been completed then they raise the defence of res judicata.

I have a number of difficulties with this point. It was no raised on the papers. It is not clear what the result was in the said application.

The parties are different and the causes of action dissimilar.

Finally of course each act of construction or the continuation of construction or the degradation of the environment or removal or damage of plants provides a new cause of complaint which is actionable at the instance of the applicants.

This point also falls to be dismissed.

A picture is painted of the respondents as bona fide rural folk who are entitled to reside on the land as a result of lengthy cultural and indigenous considerations. This is not a correct depiction as they are businessmen who are seeking profit out of a commercial activity in an area where the law has reserved land for lovers of nature.

Given the circumstances I have outlined above I am constrained to grant a declaration that the respondents are in contempt of the said court order.

South Africa is a constitutional state and no one is above the law. The respondents have hitherto resisted the process of law and this must now be halted. What must be made abundantly clear is that court orders must be obeyed. If the deputy sheriff cannot enforce an order then the police are enjoined to assist and failing that the armed forces. If citizens are at liberty to obey whatever orders they choose the only result will be anarchy.

The nature of the penalty

Mr Marais initially sought a penalty of three months imprisonment. It seems to me that the respondents’ commercial activities were conducted in pursuit of gain and it is more appropriate to impose a substantial fine, with an alternative of imprisonment, suspended on appropriate conditions. The effect of such a sentence is that their future is in their own hands. If they carry out the court order they will not be incarcerated.

Final interdict

Mr Marais submitted that a strong case was made out for a final interdict with regard to the allegations of threats of assault and worse consequences to the employees of second applicant. The principles of such are clear. The applicants have a clear right, there is harm not only apprehended but actually carried out and no other satisfactory remedy.

Given the circumstances set out above it seems to me that it is desirable that such an order be granted to safeguard the position of the employees of the first and second applicant when carrying out their duties.

Costs

I am of the view that the conduct of the respondents is so reprehensible that it warrants costs on the attorney and own client scale.

The order

In the premises I make the following order:

It is declared that the respondents are in contempt of court for wrongfully and intentionally;

Failing to comply with the orders granted on 25 September and 25 November 2009;

Acting in contravention of the aforesaid orders.

The respondents are each sentenced to a fine of R50 000 or failing payment, imprisonment for six months, wholly suspended for five years on condition, in the area of the iSimangaliso Wetland Park, in

particular at Bhanga Nek,

they cease

any construction work,

interfering with, removing or destroying any plants or vegetation,

conducting any commercial or tourism activities;

at their own cost commence by 1 August 2010 and complete by 1 October 2010

the removal of all structures and foreign material erected or introduced at the Bhanga Nek site;

the rehabilitation of the site to the condition it was before they cleared vegetation and commenced construction;

failing compliance with the above mentioned the applicants are authorized to remove the said structures and foreign material and rehabilitate the site to the condition in which it was and recover from the respondents the actual costs incurred;

The respondents are interdicted and restrained from threatening, assaulting or in any way interfering with the lawful execution of their duties by any employees of the first and second applicants;

The respondents are ordered to pay the applicants costs occasioned by this application on the scale as between attorney and own client.

Date of hearing : 7 May 2010

Date of judgment : 15 July 2010

Counsel for the Applicants : J Marais SC (instructed by Kevin Pretorius and Associates)

Counsel for the Respondents : R G B Choudree SC with M Manikam (instructed by Dandala Attorneys)