Marloth Park Rate Payers Association NPC v Municipal Manager Nkomazi Local Municipality and Another (1277/2020) [2021] ZAMPMBHC 72 (7 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: 1277/2020

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

MARLOTH PARK RATE PAYERS ASSOCIATION NPC

(Registration Number: 2017/427521/06)

APPLICANT

and

THE MUNICIPAL MANAGER,

NKOMAZI LOCAL MUNICIPALITY

FIRST RESPONDENT

VELLY MAKWAKWA NATURE CONSERVATION

MANAGER, MARLOTH PARK

SECOND RESPONDENT

JUDGMENT

GREYLING-COETZER AJ

[1] This application concerns the ownership of certain wild animals/game within the fenced boundaries of Marloth Park Holiday Town, Mpumalanga Province (“Marloth Park”).

[2] The applicant is the Marloth Park Rate Payers Association (“MPRA”). The applicant relies on the fact that the deponent, Cynthia Joey Benson, is a director and chairperson of the applicant, and a resident of Marloth Park, as basis for the applicant’s locus standi to institute the application. Both the first- and second respondents opposed this application. The first respondent will hereinafter be referred to as “the municipality”. The municipality in addition to the merits disputes that the applicant was duly authorised to institute the proceedings on behalf of all registered property owners within Marloth Park.

[3] In the notice of motion the applicant formulates the relief sought as follows:-

“1. Declaring that the ownership of the wild animals referred to as game, within the fenced boundaries of Marloth Park Holiday Town belongs to the registered property owners of Marloth Park Holiday Town, Mpumalanga Province.

2. Declaring all rights pursuant to the ownership of the wild animals aforementioned vest in the registered property owners of Marloth Park Holiday Town, Mpumalanga Province.

3. Declaring the use of firearms to cull wild animals within the boundaries of Marloth Park Holiday Town unlawful.

4. Any respondent(s) or party opposing this application is ordered to pay the cost of this application on a scale as between attorney and client.”

[4] The relief sought by the applicant is located in Section 21(1)(c) of the Superior Courts Act 10 of 2013, which provides as follows:-

“21 Persons over whom and matters in relation to which Divisions have jurisdiction

(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power-

…;

(c) in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.”

[5] As fully explained in Minister of Finance v Oakbay Investments (Pty) Ltd and Others; Oakbay Investments (Pty) Ltd and Others v Director of the Financial

Intelligence Centre,[1] the exercise of the court’s jurisdiction in terms of Section 21(1)(c) of Superior Courts Act 10 of 2013, follows a two-legged enquiry.[2]

[6] First, the court must be satisfied that the applicant is a person interested in an existing, future or contingent right or obligation, and if so, secondly, the court must decide whether the case is a proper one for the exercise of its discretion.

[7] Thus, the first leg of the enquiry involves establishing the existence of the necessary condition precedent for the exercise of the court’s discretion. In this respect an applicant requesting declaratory relief will satisfy this requirement if such applicant succeeds in establishing that he/she/it has an interest in an existing, future or contingent right or obligation. Only if the court is satisfied accordingly, does it proceed to the second leg of the enquiry.[3]

[8] When advanced to the second leg of the enquiry, various factors ought to be considering to determine whether the court’s judicial discretion should be exercised positively or negatively in an application as in casu. As held in Herbstein and Van Winsen,[4] these include, in no particular order:-

(a) the existence or absence of a dispute;

(b) the utility of the declaratory relief, and whether if granted, it would settle the question in issue between the parties;

(c) whether a tangible and justifiable advantage in relation to the applicant’s position appears to flow from the granting of the order sought;

(d) considerations of public policy, justice and convenience;

(e) the practical significance of the order; and

(f) the availability of other remedies.

[9] Any absence of uncertainty regarding the legal question to be answered by way of declaratory relief does not detract from the fact that declaratory relief remains a discretionary remedy. The court is not obliged to grant same. In J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others[5] it was held as follows:-

“In interpose that inquiry because a declaratory order is a discretionary remedy, in the sense that the claim lodged by an interested party for such an order does not in itself oblige the court handling the matter to respond to the question which it poses, even when that looks like being capable of a ready answer. A corollary is the judicial policy governing the discretion thus vested in the courts, a well-established and uniformly observed policy which directs them not to exercise it in favour of deciding points that are merely abstract, academic or hypothetical ones. I see no reason why this new court of ours should not adhere in turn to a rule that sounds so sensible. Its provenance lies in the intrinsic character and object of the remedy, after all, rather than some jurisdictional concept peculiar to the work of the Supreme Court or otherwise foreign to that performance here.”

[10] Aforesaid is obviously subject thereto that the applicant had made out a case for the relief sought. Differently put, the applicant is still required to establish locus standi and allege and prove the right which it contends for.

[11] Considering the finality of the relief sought, and for as far as factual disputes exist in this motion proceedings, the matter ought to be adjudicated as held in the matter of National Director of Public Prosecutions v Zuma.[6] Harms DP, held that motion proceedings were really designed for the resolution of legal disputes based on common cause facts. The reality is however that disputes of fact arise almost in each application. The degree obviously differs from case to case. In order to deal with this, rules have developed to determine the facts upon which matters must be decided where disputes of fact have arisen and the parties do not want a referral or have not sought a referral to oral evidence or trial.

[12] In proceedings for final relief such as in this matter, the appropriate approach to determine the facts was authentically set out in Plascon-Evan Paints Ltd v Van Riebeeck Paints (Pty) Ltd[7] wherein it was held as follows:-

“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact…

… there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers …”

[13] Simply put, factual disputes in motion proceedings are resolved on the papers by way of an acceptance of those facts put up by the applicant which are common cause or not denied by the respondent, together with the facts put up by the respondent, even though they are in dispute. In National Director of Public Prosecutions v Zuma (supra) it was held that the general rule may not apply if the respondent’s version consists of bold or un-creditworthy denials, raised fictitious disputes of fact and is palpably implausible, farfetched or so clearly untenable that the court is justified in rejecting them merely on the papers.

[14] Aforesaid leaves the question as to what is an adequate denial by a respondent in motion proceedings. In the matter of Wrightman t/a JW Construction v Headfour (Pty) Ltd and Another[8] the following was said in this respect:-

“[11] The first task is accordingly to identify the facts of the alleged spoliation on the basis of which the legal disputes are to be decided. If one is to take the respondents' answering affidavit at face value, the truth about the preceding events lies concealed behind insoluble disputes. On that basis the appellant's application was bound to fail. Bozalek J thought that the court was justified in subjecting the apparent disputes to closer scrutiny. When he did so he concluded that many of the disputes were not real, genuine or bona fide. For the reasons which follow I respectfully agree with the learned judge.

[12] Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must, in the event of conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers.

[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed… There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say 'generally' because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such

disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.”

[15] From the papers before court, very little facts appear to be common cause, save for the following.

[16] In terms of Section 69 of the Town Planning and Township Ordinance 1965 (Ordinance 25 of 1965) (“the 1965 Ordinance”), Marloth Park is situated amongst a number of private game reserves and agricultural holdings. The township falls under the executive- and legislative authority, control and jurisdiction of the local authority, being the municipality. The municipality is the successor in title to the old order local authority which exercised control over the governance and management of the affairs of the township under the Ordinance.

[17] Marloth Park is a township which is not classified as a unique community/township in terms of Section 84 of the Mpumalanga Nature Conservation Act 10 of 1998. As such, Marloth is an ordinary township with no special dispensation applicable to it.

[18] The land on which Marloth Park is situated was declared and approved as a township by the then administrator in terms of Section 69 of the 1965 Ordinance. The administrator’s declaration was published in the (then) Transvaal Provincial Gazette under Administrative Notice No 1849 on 7 December 1977.

[19] The approval granted by the administrator for the establishment of the township was subject to certain express restrictions or conditions of establishment as set out in the schedule to the notice. Over the years the 1965 Ordinance was amended and subsequently repealed by further ordinances and Acts of Parliament. The most notable in the advent of the Constitutional dispensation, being the Mpumalanga Town Planning and Land Related Laws Repeal Act 2 of 2016.

[20] The terms of the conditions of establishment of a township finds application to every owner, resident or occupier of any of the erven situated on the township. The conditions of establishment provide amongst other that all erven, except those belonging to the local authority and utilised for municipal purposes, are subject to the conditions stipulated in the schedule and the 1965 Ordinance.

[21] The municipality is the successor in title and in law to the old order local authority, which exercised control over the township in terms of the 1965 Ordinance.

[22] The township comprises of individual erven zoned for different purposes, such as residential, commercial and agricultural. All the land falling outside the erven is owned by the municipality. The relationship between the municipality and the residents of the township is governed in terms of the Local Government: Municipal Systems Act 32 of 2000 and the by-laws of the province, and not by private instrument.

OWNERSHIP OF WILDLIFE

The applicant’s contentions

[23] The applicant maintains that the game in Marloth Park belongs collectively under the care and custody of all the property owners. In support it has been alleged that an urgent application commenced in the Pretoria High Court in 2003, which was launched by the Ngwenya Echo Foundation (“NEF”) and Marloth Park Pro-Nature Ltd against 8 respondents, which included the first- and second respondents herein. The relief sought therein appears to be related to the capture and removal of animals from Marloth Park and the return of lions, which were unlawfully removed from Marloth Park.

[24] A copy of a court order was placed before court which appears to make a settlement agreement an order of court, together with relief for the return of 10 zebras. It bears mention that the relief granted seems to only find application in respect of one Mr Riaan Venter and the Mpumalanga Parkeraad.

[25] It is further contended that the registered property owners of Marloth Park are the owner of the wild animals on the basis that wild animals in a state of natural freedom are considered to be res nullius, but when certain requirements are met, their capture may amount to occupatio, a method by which ownership in a wild animal can be acquired. In this respect the court was referred to LAWSA 1 (2) par 461.

[26] It was further submitted that the requirements for occupatio are that (a) the wild animal must be ownerless; (b) physical control must be exercised over the animal; and (c) the captor must have the intention to become the owner of the animal.

[27] The court’s attention was drawn to the common law principles relating to the fact that the Game Theft Act 105 of 1996 radically modified the common law principle of ownership of wild animals. In this respect the Act requires that land should be sufficiently and adequately enclosed to detain the wild animals. In this respect reliance was placed on photographs depicting the game fencing that surrounds Marloth Park. It was submitted that Marloth Park is comprehensively fenced and adequately enclosed with game fencing, which was partially erected by the municipality and the management of the Kruger National Park/Veterinary Services. On aforementioned basis it was concluded that the wild life is no longer res nullius.

[28] As a further basis it was alleged that the right of ownership of immoveable property includes the right to possess, use, enjoy and alienate the property. Therefore this included the right to enjoy all natural resources occurring on the land and that the res nullius wild animals which occurred on the private land are natural resources which occur on the land, and to which the private land owners

therefore have the right of use and enjoyment without interference or intervention from others for as long as they occur on the land, and provided that this is not in conflict with any other law.

[29] The municipality, although it is the legal administrator of the park, cannot own the game, as it cannot control the movement of the game onto private property (so the argument went), since the private landowners cannot capture the wild animals on their land, they cannot exercise control over these animals either.

[30] In conclusion it was submitted that the situation in Marloth Park is thus one of joint ownership, which was, according to the applicant, a view upheld by the court in the 2003 court application, as mentioned in paragraph 23 herein above.

The municipality’s contentions

[31] The municipality contends that the wild animals remain res nullius and belong to neither the applicant nor the municipality. It was submitted that the State, through its various organs such as the

municipality, is merely the custodian/trustee of all biodiversity, which includes game situated within the Republic and which are res nullius. In this respect reliance was placed on Section 3 of the Biodiversity Act 10 of 2014.

[32] It was further submitted that no property owner or resident within the township may acquire ownership of the game in light of the legal restrictions which prevent them from doing so. The restrictions were categorised by the municipality as two-fold: (1) they are imposed in terms of the conditions of the title registered against the title deed of each erf, as contained in the notice, which amongst others requires that permission to capture and stable any animals be obtained from the municipality; and (2) that they are imposed in terms of the national and provincial legislation, which require any person desirous of capturing and keeping a wild animal or game to acquire approval and a permit from the relevant authorities.

USE OF FIREARMS FOR PURPOSES OF CULLING

Applicant’s contentions

[33] It is contended by the applicant that Section 120(3)(b) of the Firearms Control Act 60 of 2000 (“FCA”) states that:-

“(3) It is an offence to-

…

(b) discharge or otherwise handle a firearm, an antique firearm or an airgun in a manner likely to injure or endanger the safety or property of any person or with reckless disregard for the safety or property of any person; or

...”

[34] Further, the Mpumalanga Nature Conservation Act 10 of 1998 stipulates under more in Section 7(1)(d) that:-

“(1) Subject to the provisions of this Act, no person shall hunt ordinary game: Provided that-

(d) the holder of a licence which authorises him or her to do so may, with the prior written permission of the owner of the land, hunt ordinary game on the land of the owner during an open season.

…”

[35] It was further alleged by the applicant that during November 2017, the applicant successfully obtained a final interdict against culling of wild animals in Marloth Park. In support of this contention, a copy of a court order, but no further detail or substantiation was placed before court. In terms of the court order:-

“The rule nisi extended to 22 November 2017 excluding prayer 2.2 of the notice of motion, is marked final.”

[36] It was further submitted that various residents of Marloth Park have complained about the dangers and mere misses over the years as a result of unlawful practices adopted by the municipality and its culling teams and contractors.

[37] It is submitted on behalf of the municipality that as an organ of State, it has an extended obligation to ensure safe and clean environment inherent with managing and protecting the biodiversity of a township’s eco system. By regulating the game population within the township the municipality is fulfilling its obligation in terms of Section 24 of the Constitution.

[38] It was submitted that although the applicant accepts that animals need to be culled, the true issue is whether the discharge of a firearm within a township is lawful.

[39] The municipality contends that Marloth Park is a semi-built-up area where culling of game is permissible, provided that it is safe to do so.

DECLARATORY RELIEF

[40] As set out herein above, the first consideration is whether the applicant is a person interested in an existing, future or contingent right or obligation. It is clear from the evidence before court that the applicant is such an association, and that the deponent (on behalf of the applicant) is a person with an interest in the right contended for.

[41] Therefore, the applicant is entitled to declaratory relief. However, in the present matter, the relief sought needs to be more closely scrutinised. As set out in paragraph 3 herein above, the relief sought is not only in respect of the applicant but includes all registered property owners of Marloth Park. That would include the municipality and all property owners, whether they are members of the applicant or not.

[42] It is common cause that the applicant is not the only owners’ association operative within Marloth Park. As per the evidence before court, there is also the Marloth Park Property Owners Association, as well as the Marloth Park Honorary Rangers, Marlothii Conservancy and Marloth Wildlife Fund, the aforementioned four jointly known as the Marloth Park Forum.

[43] Although the applicant acknowledges the Marloth Park Forum and the four organisations constituting same. The applicant disputed that the Marloth Park Honorary Rangers is an independent organisation working independently from the Municipality. The applicant contends that the Marloth Wildlife Fund is a non-profit organisation and can therefore not speak on behalf of anybody and the Marlothii Conservancy is an urban conservancy that falls within the boundaries of the township, but which is a membership-based organisation and not registered.

[44] The applicant admits that the Marloth Property Owners Association is the oldest property organisation, but as it is membership-based, it can only speak on behalf of its paid-up members. This is a rather curious argument to made as the very same principles applies to the applicant. The applicant in elaboration contends that although the Marloth Property Owners Association exists, it only represents 10% of the Marloth Park property owners.

[45] It is unknown to the court as to whom the members of the applicant are and to what extent they represent the registered property owners within Marloth Park. However, aforementioned does not take the matter any further, as it is quite evident from that set out above that the applicant has not been authorised on behalf of the four organisations making up the Marloth Forum, or on the admitted facts for that matter the Marloth Park Property Owners Association, to launch the present application and to seek relief sought. The relief clearly will have not only an impact but be binding on all property owners of Marloth Park. For example, Mr Dennis Goffinet, the chairperson of the Marloth Park Property Owners Association, clearly does not support

the relief sought by the applicant, and therefore does exhibit the intention to launched this application and be bound by the outcome

thereof.

[46] In the absence of all the property owners being a party to these proceedings alternatively specifically authorising the applicant to launch this application it cannot be said that all the property owners whom the applicant intends to bind with the declaration of rights want to be so bound, and thus have the required interest in this right to establish the first leg of the enquiry.

[47] The applicant has thus failed to successfully established the existence of the necessary condition precedent for the exercise of the court’s discretion.

[48] It is essential that all interested parties needs to be joined. In Stadsraad van Randburg v Ludorf N.O. en Andere[9] it was held that it would not be competent, where a declaration of rights is applied for, to include in the order new or subsequent

owner who is not a party to the litigation. The same principle finds application here.

[49] As held in Oakbay supra, only if the court is satisfied that the first leg of the inquiry has been established, does it proceed to the second leg of the

enquiry.[10]

[50] Consequentially, and having found aforesaid, no further consideration follows. In the premises the applicant’s application stands to be dismissed.

[51] The only issue which remains is that of costs. I see no reason why the ordinary principle, that costs should follow the event[11], should not be applicable in the present instance.

ORDER

[52] The following order is:

1. The application is dismissed with costs.

DATE OF HEARING: 8 December 2020

DATE OF JUDGMENT: 07 February 2021

FOR THE APPLICANT: Mr WP Meintjes

Instructed by

Meintjes and Khoza Attorneys

E-mail: iti03500@mweb.co.za

Ref: MKM110/20

FOR THE RESPONDENTS Adv V Notshe SC, together with Adv M Morgan

Instructed by

Ntuli Inc

E-mail: jan@ntuliinc.co.za

Ref: JH Coetzee

[1] 2018 (3) SA 515 (GP)

[2] Durban City Council v Association of Building Societies 1942 AD 27 at 32, and confirmed in Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at par [15] to [17]

[3] Oakbay supra

[4] Herbstein & Van Winsen: The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa Vol 1 Fifth Edition, 2009 Chapter 43 at p1438-1440

[5] [1996] ZACC 23; 1997 (3) SA 514 (CC), as approved in Director General, Department of Home Affairs and Another v Mukhamadiva 2014 (3) BCLR 306 (CC)

[6] 2009 (2) SA 277 (SCA)

[7] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634H – 635C

[8] [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at par [11] – [13]

[9] 1984 (3) SA 469 (W), which was applied in Jordaan and Others v Tshwane City and Others, and four similar cases 2017 (2) SA 295 (GP)

[10] At par [53] Oakbay supra

[11] Union Government (Minister of Railways & Harbours) v Heiberg 1919 AD 477 at 484