J R 209 Investments (Pty) Ltd v City of Tshwanwe Metropolitan Municipality and Others (76139/ 2015) [2015] ZAGPPHC 1024 (13 November 2015)

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

[REPUBLIC OF SOUTH AFRICA]

CASE NUMBER: 76139/ 2015

DATE: 13 NOVEMBER 2015

In the matter between:

J R 209 INVESTMENTS (PTY) LTD...............................................................................APPLICANT

And

THE CITY OF TSTHWANWE METROPOLITAN......................................FIRST RESPONDENT

MUNICIPALITY

THE SOUTH AFRICAN POLICE SERVICE...........................................SECOND RESPONDENT

VICTOR MANOMATHIRD RESPONDENT

UNLAWFUL OCCUPIERS:........................................................................FOURTH RESPONDENT

MOOIPLAAST INFROMAL SETTLEMENT

JUDGMENT

MAVUNDLA

[1] This matter brings to the fore the hunger and quest for land on the part of the landless masses; the simmering tensions and restlessness on the part of the landless and the landlords. It brings to the fore the question as to how the government, through its various structures must respondent to the gradual increase of this restlessness on the part of the masses. There is a steady increase of the tensions between the landless and the landowners, manifesting itself in a gradual increase of land-grab related cases, with the landowners rushing to court to seek the efficacy of justice to act as a buffet to this gradual but stead growing phenomenon before it becomes an avalanche.

[2] The purpose of the application by the applicant as the landlord is to obtain a buffet on urgent basis, in the form of a court order for:

2.1 a structural interdict against the first and second respondents' authorising and directing such respondents to assist the applicant and take all necessary steps in preventing the illegal activities taking place on the subject properties and further preventing unlawful occupation and trespassing on the subject properties.

2.2 an interdict preventing the third and fourth respondents from continuing with their illegal activities and trespassing upon the subject properties;

2.3 not an eviction of any unlawful occupiers from the subject properties, but rather to any unlawful occupation and trespassing on the subject properties. It is not yet necessary but should it be required, the applicant will bring an application in terms of applicable legislation for evection of any unlawful occupiers.

2.4 a costs order against any of the respondent opposing this application.

[3] The third and fourth respondents did not enter notice of intention to oppose the application. Counsel for the applicant submitted that in the circumstances the order sought against these aforesaid two respondents should therefore be granted.

[4] The applicant is the owner of vast tracks of land, consisting of two registered farm portions, being the Remaining Extent of Portion 56 of the Farm of Mooiplaats Pretoria, 355 JR, Gauteng ("the subject properties") approximately 139 hectares in extent and Portion 56 of the Farm Mooiplaas, Pretoria, 355 JR, Gauteng approximately 28 hectares in extent, both totalling 167 hectares.

[5] The applicant contended that although the illegal activities of the fourth respondents have been on-going for several years, it is only recently that the fourth respondent began to trespass upon the subject properties and utilising such properties as a dumping site upon which, inter alia, an illegal waste recycling business is being conducted. The applicant has since December 2014 been successful to prevent the unlawful activities from spreading onto the subject properties with the assistance of the second respondent and M&T Security Services. The second respondent has since embarked in demarcating and allotting lots by means of laying stones and earmarking the lots, which is a clear sign of intent to erect informal settlement for permanent occupancy. The applicant fears that should the fourth respondent be allowed to occupy the subject properties, it would have great difficulties and will have to comply with certain legislative provisions and follow an eviction process of such unlawful occupiers.

[6] According to the applicant, the first respondent is obliged in terms of its prevailing Town Planning Scheme and Town Planning and Township Ordinance, 15 of 1986, to prevent any contravention of the provisions of its scheme and is obliged to assist the applicant in this regard against the fourth respondent.

[7] The second respondent is obliged to assist the applicant and the first respondent, so it

was contended by the applicant. It is only once the first and second respondents are directed to fulfil their aforesaid obligations will then the applicant be in the best position to protect the subject properties from being occupied and restrain the fourth respondent

from continuing with other illegal, activities on the subject properties.

[8] The applicant further averred that it has a clear right and entitled to protection by the first and second respondents in terms of their statutory obligations as directed by the restrain order of the court against the third and fourth respondents.

[9] The applicant further contended that it has reasonable fear for injury to the subject properties. The apprehension is premised on the envisaged permanent occupancy of the subject properties as demonstrated by the fourth respondent in earmarking lots. The prejudice the applicant is afraid to suffer, is the devalue of the subject properties as the result of the illegal permanent settlement.

[10]The applicant contended further that it has exhausted all other available remedies in an endeavour to protect the subject properties. It contends that it has no alternative remedy as the second respondent has withdrawn its previous assistance.

[11]According to the applicant, although the illegal activities of the fourth respondent have been going on for several months, the recent activities of the fourth respondent, in showing an intention to permanently resort on the subject properties, by means of demarcating and allotting lots, coupled with the first and second respondents' reluctance to assist has made the matter urgent.

[12]The application is being opposed by the first and second respondents. Both the first and second respondents are ad idem that firstly the application is not urgent and secondly the order sought against either of them is unenforceable; and that rather than remove the matter the application should be dismissed with costs inclusive those of two counsel where applicable.

[13]The applicant in its replying affidavit expanded its contention why it said that the matter was urgent. In this regard the applicant, to buttress urgency, further said that it was at the end of July 2015 that it realised that the fourth respondent decided to plot small erven on the subject properties through the alignment of rocks and plastic tape. It further expanded by stating that there are approximately in excess of 300 plotted erven in total over an area of approximately 30 hectares. The applicant further elaborated on some of the photos it attached in its founding affidavit and proceeded to attach further, inter alia, other photographs (photos "K23," "K24" "K26" "K27", "K30" and "K31') to show the extent of the waste on the subject properties.

[14]It is trite that a party makes its case and stands or fall on its founding affidavit.[1] It is not permissible to make a case on the replying affidavit. Consequently, I propose not to have regard to the aspects raised in the replying affidavit, not raised in the founding affidavit.

[15]The applicant on its own admission, the fourth respondents' encroachment on its subject properties has been going on for months and even years. It also realised the most recent illegal activities as far back as in May and July 2015. A party who is aware of illegal encroachment upon its properties, assuming that this is just the smouldering smoke, can ill afford to be tolerant thereof and wait for escalation of the enchroament or the "fire" to ignite, and only thereafter run to court on urgent or semi-urgent basis for necessary relief. In my view, the urgency contended for by the applicant is self-contrived and does not find favour with this Court.

[16]Generally, where the Court finds that the matter is not urgent, then the Court should remove the matter from the urgent roll with a costs order. The applicant can then have a second bite on the cherry by placing the matter on the ordinary opposed motion roll. I am disinclined to follow this course, because it would be practically of no value to the parties for the reasons set herein below.

[17]As pointed out earlier the relevant subject properties extend a good measure of 167 hectors. It is indeed so that there is a legal duty on the first and second respondents to, inter alia, prevent commission of crime, such as trespassing, or illegal invasion on the property of the applicant. In this regard it is apposite to cite the following: "The existence of a legal duty to avoid or prevent loss is a conclusion of law depending upon the consideration of all the circumstances of each particular case and depending on the interplay of many factors which have to be considered. The issue, in essence, is one of reasonableness, determined with reference to the legal perception of the community as assessed by the Court."[2]

[18]The extent of the property of the applicant, just on the outside border is vast and would require a large contingency of manpower deployed to police for purposes of preventing the encroachment and trespassing complained of. In my view, it would be unreasonable to expect of the first and second respondents to deploy manpower to prevent trespass or even illegal dumping on the relevant property. Such deployment would come with great financial constrains to their purse, and severe criticism from the public which would frown upon such deployment for the protection of an individual's private property.

[19]In my view, the order sought by the applicant is not possible to effectuate and it would serve no purpose, therefore to prolong this matter just for an academic exercise. In the premises the application should be dismissed with costs. The respondent employed the services of two counsel, justifiable so, regard being had to the importance of the matter to all the parties and also the fine points of law.

[20]In the result the application is dismissed with costs inclusive the costs of two counsel, where applicable.

N.M. MAVUNDLA JUDGE OF THE HIGH COURT

DATE OF HEARING : 03/ 11/2015

DATE OF JUDGMENT : 13/11/2015

APPLICANTS'ADV : ADV J. A. VENTER

INSTRUCTED BY : A B LOWE ATTORNEYS

FIRST RESPONDENTS'ADV : ADV M. RIBS SC with ADV M DEWRANCE

INSTRUCTED BY : DAYSON INCORPORATED

SECOND RESPONDENTS'ADV : ADV M. S. PHASWANE

INSTRUCTED BY : STATE ATTORNEY PRETORIA

[1] Vide Mauerberger v Mauerberger 1948 (3) SA 731; Bowman NO i/ De Souza Roldao 1988 (4) SA 326 at 327D- G.

[1] Vide Mauerberger v Mauerberger 1948 (3) SA 731; Bowman NO i/ De Souza Roldao 1988 (4) SA 326 at 327D-

G.

[2] Vide Van Eeden v Minister of Safety and Security 2001 (4) SA 646 (TPD) at 653D.