Kokwe v Dr Ruth Segomotsi Mompati District Municipality and Others (1660/2013) [2014] ZANWHC 42 (11 September 2014)

“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST HIGH COURT, MAHIKENG

CASE NO. 1660/2013

In the matter between:

OTLADISANG

MICHAEL KOKWE

APPLICANT

and

DR

RUTH SEGOMOTSI MOMPATI DISTRICT

MUNICIPALITY

1ST

RESPONDENT

TSHWARAGANANG & ASSOCIATES CC 2ND

REPONDENT

THE

MINISTER OF WATER

AFFAIRS 3RD

REPONDENT

CHIEF MANKUROANE: THE CHIEF OF THE BATLHAPING

BA-GA

PHUDUHUCWANA TRADITIONAL COMMUNITY 4TH

REPONDENT

JUDGMENT

GUTTA J.

A.

INTRODUCTION

[1] The applicant applied for an order in the following terms:

“1. That, the First, Second and Third Respondents be ordered and directed to remove within a period of one month from the property of the Applicant (described in the founding affidavit) the road and pipelines which were constructed on the said property by the Second Respondent.

2. That, in the event of the said Respondents failing to so remove the said road and pipelines, then and in such event the Sheriff of this Court is directed and authorised to take such steps that might reasonably be necessary to remove the said roads and pipelines.

3. That, the First, Second and Third Respondents pay the Applicant’s costs of this application jointly and severally the one paying, the other be absolved and that the Fourth Respondent pay the costs occasioned by the Fourth Respondent’s opposition (if any) to this application.”

B.

BACKGROUND

[2] The applicant’s case is that:

2.1 he is the lawful holder of the right to use and to occupy a certain vacant stand, measuring 60m x 60m, within the Manokwane Village (“the property”);

2.2 the property belongs to the tribal authority;

2.3 the right to use and occupy the property was awarded to him by Chief F.S. Baisitse (“Mr Baisitse”), the chief of the traditional community, in 1995 as confirmed by Mr Baisitse in June 2013, Annexure “A”;

2.4 he resides 40km from the property;

2.5 the second respondent, on the instructions of the first respondent and/or the department of the third respondent, constructed a road and pipeline over the property without his authority or permission;

2.6 during or about October 2012, the second respondent constructed a gravel road, 6m wide, through his property. The applicant was under the impression that it was a temporary road and did not object thereto;

2.7 during March 2013, the second respondent constructed a pipeline next to the road, consisting of two pipes running next to each other with a depth of 1m below the ground surface;

2.8 the applicant and his family objected to the construction of the pipeline;

2.9 during April 2013, the applicant and his family erected a fence around his property, which was removed by unknown persons;

2.10 the applicant’s brother contacted one Mr Rasebitse, the managing member of the second respondent, who on 23 April 2013 expressed in an email that “Yes the access road will remain as we found it in the community members have also informed us of the previous status quo of the access road”;

2.11 a meeting was held with the fourth respondent on 08 May 2012, wherein it was agreed that one Mr Chwene would accompany the applicant to the property after the meeting. Mr Chwene accompanied the applicant as arranged;

2.12 on 27 September 2013, the applicant launched this application. In his founding affidavit, he averred that the road and pipeline have been constructed to finality and that the respondents unlawfully and wrongfully constructed the road and pipeline over his property.

[3] In the applicant’s replying affidavit, he alleges that his application is based on the mandament van spolie, and the question whether his occupation was lawful or unlawful is not relevant in the circumstances.

[4] The respondents in their opposing affidavit raised the following defence:

4.1 the applicant possesses no lawful right in regard to the property. The headman, Mr Baisitse, was found to be not fit and proper to hold office by a commission of enquiry on 16 December 1981, and the President of Bophuthatswana confirmed on 17 March 1982 that Mr Baisitse be deposed as headman of Manokwane, under Kgosi Mankuroane. The office of the Premier: North West Province Government sent a letter dated 17 June 2007 to the District Coordinator: Taung Traditional Leadership and Institutions stating inter alia that Mr Baisitse is not a duly recognised kgosana (headman) and should be warned to refrain from holding himself out as kgosana and performing or exercising any duty or power, authorities or functions of a kgosana;

4.2 as Mr Baisitse was deposed in 1982, and his headmanship was abolished in 1989, Mr Baisitse could not allocate a site on behalf of the tribal authority in 1998 nor could he sign Annexure “A”;

4.3 the land belongs to the tribe and the applicant possesses no lawful right;

4.4 the respondents obtained permission from Kgosi Mankuroane to construct a pipeline next to the road and over property belonging to his tribe, that includes the property that the applicant claims to possess;

4.5 the road was, and is, an existing road. The respondents admit that this existing road was constructed to the extent that it presently is.

C.

THE ISSUE

[5] The only issue for determination is whether the applicant has discharged the onus to prove mandament van spolie and is entitled to an order compelling the respondents to remove the road and pipeline.

D.

SUBMISSIONS

[6] Mr Pistor SC, counsel for the applicant, submitted that the applicant exercised his right over the property in the following manner:

6.1 he visited the property at least once a month;

6.2 when he learnt that the pipeline would be constructed over his property, he contacted Mr Neethling and even met with the fourth respondent;

6.3 he erected a fence around the property which was only partly removed by unknown persons.

[7] He submitted further that what is relevant is that at the time when the respondent spoliated, the applicant had actually and actively exercised his right over the property.

[8] He submitted that it is irrelevant whether the applicant had the right to occupy and possess, and referred the Court to the case of Bon Quelle (Edms) Bpk v Munisipaliteit van Otawi cited supra at 514H.

[9] He conceded that prior to the correspondence and erecting the fence, the respondent was not aware of the applicant’s right to use and occupy the property.

[10] Mr Pistor SC submitted that the only question is, was the possession known and was there interference with the possession?

[11] Counsel for the respondent, Mr Scheepers, submitted:

11.1 that this is a vacant stand and there is no evidence of anyone occupying it. He said visiting the property once a month is insufficient, and the applicant does not explain what he did on the property. There is no evidence that he visited the property to exercise his right to occupation;

11.2 the applicant must prove that he exercised the right to occupy and use the property. The erection of a fence is not proof that he actually or actively exercised the right. The road was erected before the fence;

11.3 the respondent did not act unlawfully as they had the permission of the owner of the land to construct.

E.

THE LAW

[12] The applicant must allege and prove that he was in peaceful and undisturbed possession of the property, and that he was dispossessed without his consent or without due legal process. See Kgosana v Otto 1991 (2) SA 113 (W); George Municipality v Vena & Another 1989 (2) SA 263 (A).

[13] The purpose of the mandament van spolie is to restore unlawful deprivation of possession at once (ante ammonia) to the possessor, in order to prevent people from taking the law into their own hands. The mandament van spolie operates only in a case of unlawful deprivation (spoliation) of possession. See Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W) at 623; Van Rooyen en ʼn Ander v Burger 1960 (4) SA 356 (O) at 362 – 363.

[14] The mandament van spolie is not concerned with the protection or restoration of rights at all, its aim is to restore the factual position of what the spoliatus has been unlawfully deprived. The applicant must prove that he was in possession and that he was ousted illicitly from such possession. The very essence of the remedy against spoliation is that the possession enjoyed by the party who asks for the spoliation order must be established. See Plaatie & Another v Olivier N.O & Others 1993 (2) SA 156 (OPD) at 159C & 159F.

[15] In Nienaber v Stuckey 1946 AD 1049 at 1056, it was held that possession of incorporeal rights is protected against spoliation. The mandament van spolie is not concerned with the protection or restoration of rights at all. Its aim is to restore the factual possession of what the spoliatus has been unlawfully deprived.

[16] In Tigon Ltd v Bestyet Investments (Pty) Ltd 2001 (4) SA 634 (N) at 642, the Court confirmed that an incorporeal right was capable of being possessed and that such possession was affected by the exercising of such right. The Court held:

“If we are here dealing with an incorporeal right, then what Bestyet had to prove was that it had quasi possession of the right in the sense that it actually or actively (daadwerklik) exercised that right and that further exercise of the right has unlawfully been prevented by Tigon’s resort to self-help.”

(Own emphasis)

[17] In Zulu v Minister of Works, KwaZulu & Others 1992 (1) SA 181 (D) at 189, Prof Van der Walt explains the concept of quasi-possession of a right as follows:

“Wanneer ek sonder ʼn magtigende serwituut oor my buurman se grond ry, en hy sluit daarna die hek, kan ek die mandament van spolie alleen aanvra op grond van die bewering (wat uiteraard eers bewys moet word) dat ek daadwerklike beheer oor daardie pad gehad deurdat ek dit daadwerklik gebruik het.”

[18] In Telkom SA Ltd v Xsinet (Pty) Ltd 2003 (5) SA 309 (SCA), the law, as was stated in the ratio decidendi in the matter of Bon Quelle (Edms) Bpk v Munisipaliteit van Otawi 1989 (1) SA 508 (A) at 514H was confirmed, namely, that an applicant does not have to prove a servitude in order to get a spoliation order and that it is sufficient for an applicant to prove quasi-possession of an alleged servitude by showing an outward manifestation of its use. (Own emphasis)

“The applicant was obliged to prove that it had quasi possession of the right in the sense that it actually or actively exercised such right and that further exercise of the right was prevented by the respondents’ resort to self-help. It was not incumbent upon the applicant to prove the physical existence of the right, only the factual position.”

F.

ANALYSIS

[19] The applicant’s application is founded on the allegation that he is “the lawful holder of the right to use and to occupy” a certain unimproved stand on behalf of himself and his family, awarded to him in 1995 by Mr Baisitse, as per Annexure “A”.

(Own emphasis). Annexure “A” does not identify the alleged residential site and the applicant relies on his own

demarcation.

[20] The mere right to use the property does not amount to possession for purposes of establishing an entitlement to the mandament van spolie. See Shoprite Checkers Ltd v Pangbourne Properties Ltd supra at 623.

[21] The applicant seeks to protect his right to use and occupy the property. This right is an incorporeal right and the onus is on the applicant to prove quasi-possession of the right, and that the exercise of the right has been despoiled.

[22] When an applicant seeks a spoliation order, it is not sufficient for him to make out merely a prima facie case for the order, he must prove the facts necessary to justify a final order, that the things alleged to have been spoliated were in his possession and that they were removed from his possession forcibly or wrongfully or against his consent. See Nienaber v Stuckey supra.

[23] The factual position, on the applicant’s version, is that a temporary road existed on the property that came into being my members of the public crossing the property. Further, during October 2012, a gravel road was constructed on the property, which was used by members of the public. Only in March 2013, when the applicant and his family saw a pipeline being constructed did they object thereto and erect a fence around the property, which fence was subsequently removed. The applicant launched this application after the road and pipeline was constructed.

[24] Hence, on the applicant’s own version, members of the public used the property. This is the respondent’s contention, that there was, and still is, an access road on the property. Hence, the applicant was not in peaceful and undisturbed possession of the property before and after October 2012.

[25] On the central issue of whether the applicant actually or actively exercised the right to use and occupy the property, the applicant makes a bold allegation that he visited the property once a month, and no further information is provided. The property is a vacant stand and he does not explain how he exercised his right over the property every month since 1995. There is insufficient information to prove actual or active exercise of the right. Furthermore, the applicant only erected a fence in March 2013, which fence was removed by unknown persons. This fence was only erected after the respondent commenced construction of the pipeline next to the road, and not when the road was constructed in October 2012. Hence, the fact that the applicant erected a fence does not assist the applicant’s case as it does not prove the actual or active exercise of the right which he is seeking to protect. There is no proof of an actual manifestation of use.

[26] Hence, I am of the view that the applicant did not prove quasi-possession of the right.

[27] The second leg of the enquiry is whether the applicant has proved, on a balance of probabilities, that he has been deprived unlawfully of his quasi-possession of his use and occupation of the property.

[28] The first to third respondents allege that the fourth respondent, who is the owner of the property, gave them permission to construct the road and lay the pipeline. The fourth respondent attested to a confirmatory affidavit in support of same.

[29] As I am of the view, supra, that the applicant did not prove quasi-possession of the property, it is not necessary, in the circumstances, to make a finding on whether the applicant was unlawfully deprived of his right to use and occupy the property.

[30] It should, however, be noted that the applicant, in his founding affidavit, did not allege that he was spoliated or that he was dispossessed. On first reading of the affidavit, it appeared that the applicant was relying on a possessory remedy, alternatively an interdict which would also provide the applicant with protection in these circumstances. It was only in his replying affidavit that the applicant sought to rely on spoliation.

G.

CONCLUSION

[31] In the circumstances, I am of the view that the applicant failed to discharge the onus on a balance of probability that he was spoliated.

H.

ORDER

[32] Accordingly, I make the following order:

a) The application is dismissed with costs.

_____

N.

GUTTA

JUDGE

OF THE HIGH COURT

APPEARANCES

DATE

OF HEARING

: 21 AUGUST 2014

DATE

OF JUDGMENT

: 11 SEPTEMBER 2014

COUNSEL

FOR APPLICANT

: ADV J.H.F. PISTOR SC

COUNSEL

FOR RESPONDENTS

: ADV J.H.L. SCHEEPERS

ATTORNEYS

FOR APPLICANT

: MAREE & MAREE ATTORNEYS

ATTORNEYS

FOR RESPONDENTS

: SMIT STANTON INC.

(Instructed by VENTER BOOYSEN FERREIRA)