Motsimhoholo Local Municipality v Unlawful Occupiers and Others (1631/2020) [2020] ZAFSHC 231 (15 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(FREE STATE DIVISION BLOEMFONTEIN)

Case No.: 1631/2020

In the matter between:

MOTSIMOHOLO LOCAL MUNICIPALITY

Applicant

and

UNLAWFUL OCCUPIERS & OTHERS

Respondent

JUDGMENT

JUDGMENT BY: RAIKANE, AJ

DATE HEARD: 8 OCTOBER 2020

DATE DELIVERED: 15 OCTOBER 2020

INRODUCTION:

l] The Applicant ("METSHIMOHOLO LOCAL MUNICIPALITY") as a matter of urgency seeks a final interdict to prevent the invasion or invitation of people to invade the land being THE REMAINDER OF TOWNLANDS OF ORANJE 1124 ("it's property") that occurred on 20 March 2020.The interim order was Granted on 3 June 2020. The rule nisi was extended on two previous occasions.

2] The return of services with pictures filed indicate that only one person NTHABISENG DLAMINI was personally served with the notice and order. The rest were attached to either incomplete built structure, fences or empty demarcated

structures. No notice to oppose the application was filed.

3] An answering and verifying affidavits were delivered on 28 August 2020. They were deposed to by one JOHANNES MOKOENA who is cited as the First Respondent, a leader of the ORANJIE FORUM and by Ten (10) other people. A certified resolution of the forum is also attached. They are assisted by the UFS LAW CLINIC. They averred to have been in occupation since 2017.

4] An application to condone the late filing of the Replying Affidavit was abandoned.

THE ISSUE:

5] A point in limine was raised on the locus standi of the First Respondent as there was no notice to oppose filed in terms of the Rules. The implication being that the matter should proceed as unopposed and the rule nisi be confirmed.

6] A further contention is that also the Answering Affidavit at page 65: par 21 of the paginated bundle) the lack of locus standi is confirmed in the following averments: "it is denied that either I or any member of the Oranjieville Community or the Oranjie Development Fon11n are part either of the first or the second Respondent as cited"

7] The other point raised was whether the forum is a universitas giving it the right to act on behalf of the unlawful occupiers.

8] In replication Prof Brand, from the UFS contends that the parties have locus standi in that their constitutional rights of occupation of the land is threatened as they might be evicted should the order be confirmed as per the Constitutional Court matter in ZULU AND OTHERS v ETHEKWINI v MUNICIPALITY AND OTHERS [2014] ZACC 17.

THE LAW:

9] Rule 12 of the Uniforms Rules of the Court the provisions of which is also applicable to applications by virtue of rule 6(14) clearly states that:

"any person entitled to join as a plaintiff or liable to be joined as defendant in any action may on notice to all parties at any stage of the proceedings apply for leave to illlervene as a plaintiff or defendant", and the court will give directives on that application (my italics).

10] In SA RIDING FOR THE DISABLED ASSOCIATION v REGIONAL LAND CLAIMS COMMISSIONER 2017 (5) SA 1 (CC), the following principle was confirmed that: "if the applicant shows that it has some right granted, as no order should be granted against a party without affording such party a predecision hearing"

11] On the issue of costs, the applicant is amenable that no order as to cost should be made.

APPLICATION OF THE LAW TO THE FACTS:

12] From the documentation filed of record in answering the interim order granted the deponent affirms that he or members of the Forum are not part of either the First or Second Respondents

13] Secondly there is no application to intervene before court on their behalf for them to acquire the correct locus standi to answer.

14] In the result the following order is made:

14.1 The point in limine is upheld;

14.2 The rule nisi is confirmed,

14.3 No order as to costs.

_____________________

T. V. RAIKANE, AJ

On behalf of applicants: Adv: Mosikili

Instructed by:

Morobane Inc.

On behalf of respondents: Prof. Brand Dr. Ozoemena

Instructed by:

UFS Law Clinic