Motsoaledi N.O and Others v Minister of Rural Development and Land Reform and Others (M160/19) [2020] ZANWHC 62 (17 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

Case number: M160/19

In the main application between:-

MOTSOALEDI, RESEBEPI PIET N.O.

FIRST APPLICANT

MAHUMA, ANNA MATLAKALA N.O.

SECOND APPLICANT

MOPHATLANE, MMASEFUDI DOROTHY N.O.

THIRD APPLICANT

MOTLAHTLHEDI, RAMAJA NICHOLAS N.O.

FOURTH APPLICANT

MAGORO, BOIYANE JOHANNA N.O

FIFTH APPLICANT

and

MINISTER OF RURAL DEVELOPMENT FIRST

RESPONDENT

AND LAND REFORM

CHIEF DIRECTOR, NORTH WEST DEPARTMENT SECOND RESPONDENT

OF RURAL DEVELOPMENT AND LAND REFORM

MOTLA, FRANCIS SELLO THIRD

RESPONDENT

MOTLA, FRANCIS SELLO N.O. FOURTH

RESPONDENT

MANNE, PETER

FIFTH RESPONDENT

MOALUSI, OUPA

SIXTH RESPONDENT

MASWABELA, JOHANNES SEVENTH

RESPONDENT

MATLALA, ANDRIES

EIGHTH RESPONDENT

And in the interlocutory application between:-

MOPHATLANE, MMASEFUDI DOROTHY N.O. THIRD

APPLICANT

MOTLHATLHEDI, RAMAJA NICHOLAS N.O.

FOURTH APPLICANT

MINISTER OF RURAL DEVELOPMENT

FIRST RESPONDENT

CHIEF DIRECTOR, NORTH WEST DEPARTMENT SECOND RESPONDENT

THE DIRECTOR-GENERAL OF THE DEPARTMENT THIRD RESPONDENT

THE REGISTRAR OF DEEDS, VRYBURG

FOURTH RESPONDENT

JUDGMENT

STANTON AJ

INTRODUCTION:-

[1] In this application, the applicants, as the trustees of the Bultfontein, Portion 2 Community Trust (“the Trust”) seek the confirmation of two rules nisi.

Relief in the main application:-

[2] On 16 May 2019, the following interim order was granted to the the appliants in the main application, namely:-

2.1 The third respondent (“Mr FS Motla”) is interdicted from purporting to act as land adjustment commissioner in terms of section 3 of the Land Title Adjustment Act , Act 111 of 1993 (“the LTAA”) for the immovable property described as Portion Number 2 (remaining extent) of the Farm Bultfontein 178, Registration Division JQ, North West Province, measuring 2781.2294 hectares in extent (“the Bultfontein Property”);

2.2 Any purported actions or decisions taken by Mr FS Motla in respect of the Bultfontein property is void ab initio;

2.3 Alternatively, reviewing and setting aside the decision of the Minister of Rural Development and Land Reform (“the Minister”) and/or Chief Director, North West Department of Rural Development and Land Reform (“the Chief Director”) to appoint the Mr FS Motla as the land title adjustment commissioner in terms of section 3 of the LTAA for the Bultfontein Property and that all decisions taken by Ms FS Motla pursuant to his purported appointment as envisaged, be declared void ab initio;

2.4 The Minister is directed, within 30 days, in terms of section 3(4)(a) of the LTAA, to designate the following land and and appoint a land title adjustment commissioner for:-

2.4.1 the Bultfontein Property; and

2.4.2 the immovable property described as Number 1 of the farm Roodekuil 179, Registration Division JQ, North West Province, measuring 1079.9225 hectares in extent (“the Roodekuil Property”);

2.5 In the event that the Minister fails to comply with prayer 2.4 above, leave is granted to the applicants to approach this Court, on the same papers, duly amplified, to compel the Minister to comply, alternatively, appointing Adv. M Moagi and/or Adv. HM Mashilo as the land title adjustment commissioner for the properties, in terms of Section 3(4) of the LTAA;

2.6 The fifth to the eighth respondents who describe themselves as “the village committee” are:-

2.6.1 interdicted from representing or acting on or holding themselves out to be represented of or acting on behalf of the Trust or the Bultfontein community;

2.6.2 directed to account to the applicants within 30 (thirty) days of an order in terms hereof, duly supported by vouchers, including by:

2.6.2.1 delivering any and all agreements concluded by them with any third party, including the sale and disposal of the sand from the property to various contractors during the period 2016 to 2017;

2.6.2.2 disclosing under oath to the applicants any and all amounts received by them in their capacities as “the village committee” together with the dates and reasons thereof, and

2.6.3 directed to pay to the Trust all amounts received by them in their capacities as “the village committee” or in respect of the properties.

[3] The Minister and the Chief Director opposed the confirmation of the rule nisi in the main application

[4] It subsequently transpired that the Bultfontein Property had been designated by the Minister on 19 October 2012 in terms of section 2(1) of the LTAA and the applicants accordingly abandoned the relief pertaining to the Bultfontein property.

Relief in the interlocutory application:-

[5] On 05 November 2019, on an ex parte basis, the following relief was granted to the applicants, namely:-

5.1 The Minister, Chief Director and Director-General, North West Department of Rural Development and Land Reform (“Director-General”) are interdicted from implementing or giving effect to the decisions or recommendations made by Mr FS Motla N.O., including:-

5.1.1 transferring the Bultfontein Property to any third party; and

5.1.2 registering a communal property association, including 73 Baja Boswa Ba Mmamahutsana Communal Property Association, in terms of the Communal Property Associations Act 28 of 1996, for purposes of acquiring, holding or managing the Bultfontein property.

[6] The Minister, Chief Director and Director-General opposed the confirmation of the rule nisi in the interlocutory application.

[7] Neither Mr FS Motla nor the fifth to the eighth respondents opposed the main or interlocutory applications.

THE FACTS:-

[8] The facts, as set out in the chronology provided by the applicants and the opposing respondents, are essentially common cause.

[9] The relevant undisputed facts are:-

9.1 On 17 March 2012, the Director-General supported the recommendation that Mr FS Motla should be appointed as the land title adjustment commissioner and that the Minister should delegate his authority to re-appoint a new commissioner, should such a contingency arise;[1]

9.2 On 28 March 2013, the Chief-Director, in writing, confirmed that “The Minister approved a designation memorandum wherein the North West Provincial Land Reform Office recommended Mr FS Motla as the Land Title Adjustment Commissioner.”[2]

9.3 Mr FS Motla’s appointment was subject to the placement of the relevant notices in the Government Gazette[3]; and

9.4 The only designation notice published in the Government Gazette, attached to the affidavits, was in respect of an immovable property described as Portion 2 Boschkoppie 104JQ.[4]

ISSUE IN DISPUTE:-

[10] The first question to be decided by this Court is whether or not Mr FS Motla was validly and lawfully appointed in terms of the LTAA as the land title adjustment commissioner in respect of the Bultfontein property, alternatively whether Mr FS Motla’s appointment, if valid, is reviewable and should be set aside, together with all decisions taken by him.

[11] In the second instance, this Court should determine whether the applicants made out a case against the fifth to the eighth respondents for an interdict and the debatement of the accounts.

THE LEGISLATIVE FRAMEWORK:-

[12] The crux of the matter lies in the interpretation of Section 3(1) and (3) of the LTAA that provides as follow:-

“The Minister may, subject to the provisions of subsection (3) and on the

conditions determined by him, appoint a title adjustment commissioner in respect of one or more pieces of designated land to deal with that land in accordance with the provisions of this Act.”

[13] Section 14 of the LTAA sets out the provisions regarding delegation as follows:-

“(1) The Director-General may, subject to such conditions as he or she may deem

necessary—

(a) delegate to an officer employed by the Department of Rural Development and Land Reform any power conferred upon him or her in terms of this Act; or

(b) authorise an officer employed by the Department of Rural Development and Land Reform to perform any duty assigned to him or her in terms of this Act.”

ARGUMENTS ON BEHALF OF THE FIRST AND SECOND RESPONDENTS IN THE MAIN APPLICATION:-

[14] The respondents’ argument can be summarised as follows:-

14.1 The decision making authority derived from section 3(1) of the LTAA, was delegated to the Provincial Chief Director;

14.2 This delegation facilitated the Provincial Chief Director to make decisions, use resources, act or dispose of matters at his level without having to refer the matter to the Minister for a decision; and

14.3 Should the Minister in fact apply his own mind and make his own decision in terms of Section 3(1) of the LTAA, then he would be usurping the administrative functions of the Provincial Chief Director who has the the duty to implement the decision of the Minister.

[15] Miss T Seboko, on behalf of the respondents, submitted that a cabinet member may assign powers or functions that are exercised or performed by him/her in terms of an Act of Parliament to a member of the executive council of a province or to a municipal council and that such and assignment can take place if an agreement to this effect exists between the relevant cabinet member and the executive council member or municipal council.

[16] She contended that the first respondent acted in accordance with his constitutionally assigned powers, that the second respondent acted in line with the delegated authority and that their actions were consequently lawful. In support of his argument, he relied on the judgment in the matter of Von Abo v President of the Republic of South Africa,[5] where the Court held as follows:-

“[40] … However, it is important to keep in mind the provisions of sections 91(1) and (2) and 92(1) and (2). In terms of these provisions the cabinet is made up of the president, the deputy president and ministers who are all appointed by the president. He assigns to them their powers and functions. Once the powers and functions have been assigned, the deputy president and ministers are responsible for the executive powers and functions assigned to them. These provisions make plain that members of the cabinet are accountable independently and collectively to parliament for the exercise of their powers and performance of their functions. For good measure, section 92(3) of the Constitution restates the obvious which is that, when they exercise the powers assigned to them, members of the cabinet must act in accordance with the Constitution. This is significant because once cabinet ministers are assigned powers and functions by the president they are not mere vassals of the president. They bear the duty and the responsibility to fulfil the duties and functions so assigned which in practice take the form of political and executive leadership of specified state departments. The Constitution makes the point that besides the duty to account to the head of the national executive, cabinet ministers bear the responsibility to report and account to parliament on how they execute their executive duties.

[41] Relevant here, in my opinion, is the collaborative nature of the national executive function, on the one hand, and the individual accountability of every minister in the cabinet, on the other. The president is head of cabinet. Thus, where a national executive function is impugned or where the conduct of a minister is challenged, it may be said, loosely speaking, that the conduct of the president as head of the national executive is in issue. However, to categorise all national executive functions at cabinet level as "conduct of the President" for the purposes of sections 167(5) and 172(2)(a), by mere virtue of the fact that the president is head of the national executive, is to misconstrue the true nature of the national executive function envisaged by chapter 5 of the Constitution. It may well be that the president has some residual authority as head of the national executive, but the primary responsibility lies with the government, and with the ministers to whom a specific task has been assigned in accordance with sections 91 and 92 of the Constitution.”

[17] Miss T Seboko submitted that the Public Service Amendment Act, Act 30 of 2007 (“the PSA”) now establishes the delegation principle whereby an executive authority delegates only to the head of department who can further

delegate to officials in the department, should the need arise and denied that the Minister had no right to delegate his authority or power.

[18] Miss T Seboko relied on the provisions of section 92 of the Constitution and contended that a cabinet member may assign powers or functions that are exercised or performed by him/her in terms of an Act of Parliament to a member of the executive council of a province or to a municipal council. He concluded that the approval of the recommendations by the Minister[6] confirms that all necessary processes were followed and was accordingly valid.

[19] Miss T Seboko submitted that the the Minister signed the recommendation for the appointment of third/fourth respondent. According to the provincial Chief Director, such an appointment was valid as the Minister was the political head of the Department and the Provincial Chief Director had implemented his “decisions/recommendations”.

ARGUMENTS ON BEHALF OF THE APPLICANTS IN THE MAIN APPLICATION:-

[20] Mr HP van Nieuwenhuizen, on behalf of the applicants, argued that the respondents’ reliance on section 238 of the Constitution is without merit, as any delegation or agency as envisaged in terms of this section, subject to legislation

permitting, would be performed by either a member of cabinet to an executive council member of a province, or by an executive council

member of a province to a member of a municipal council or to a national cabinet minister.[7]

[21] He added that the express distinction between the obligations and authority of the Minister and that of the Director General in section 14 of the LTAA, namely that only the latter may delegate his authority and obligations, fortifies the fact that the Minister had no similar right whatsoever.

[22] In essence, his argument was that the Minister never took a decision and that the appointment, contrary to statute, constitutes a nullity.

ANALYSIS:-

The Constution of the Republic of South Africa, 108 of 1996 (“the Constitution”):-

[23] The following sections of the Constiution are relevant to the adjudication of the matter:-

“Section 92. Accountability and responsibilities

(1) The Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President.

(2) Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.

(3) Members of the Cabinet must—

(a) act in accordance with the Constitution; and

(b) provide Parliament with full and regular reports concerning matters under

their control.

Section 97. Transfer of functions

The President by proclamation may transfer to a member of the Cabinet—

(a) the administration of any legislation entrusted to another member; or

(b) any power or function entrusted by legislation to another member.

Section 99. Assignment of functions

A Cabinet member may assign any power or function that is to be exercised or performed in terms of an Act of Parliament to a member

of a provincial Executive Council or to a Municipal Council. An assignment—

(a) must be in terms of an agreement between the relevant Cabinet member and the Executive Council member or Municipal Council;

(b) must be consistent with the Act of Parliament in terms of which the relevant power or function is exercised or performed; and

(c) takes effect upon proclamation by the President.”

[24] Section 238 of the Constitution deals exclusively with the agency and delegation of “an executive organ of State in any sphere of government” whom may either:-

“delegate any power or function that is to be exercised or performed in terms of legislation “to any other executive organ of State”, provided the delegation is consistent with the legislation in terms of which the power is exercised or a function is performed; or

exercise any power or perform any function for any other “executive organ of State” on an agency or delegation basis.”

The PSA:-

[25] Section 42A(4), (6) and (7) of the PSA provide that:-

“(4) Subject to subsection (3), an executive authority may—

(a) delegate to the head of a department any power conferred on the executive authority by this Act; or

(b) authorise that head to perform any duty imposed on the executive authority by this Act.

(6) Any person to whom a power has been delegated or who has been authorised to perform a duty under this section shall exercise that power or perform that duty subject to the conditions the person who made the delegation or granted the authorisation considers appropriate.

(7) Any delegation of a power or authorisation to perform a duty in terms of this section—

(a) shall be in writing;

(b) does not prevent the person who made the delegation or granted the authorisation from exercising that power or performing that duty himself or herself; and

(c) may at any time be withdrawn in writing by that person.”

[26] In our common law there is a presumption against delegation which is embodied in the maxim delegatus delegare non potest. Botha JA in Attorney General, OFS v Cyril Anderson Investments (Pty) Ltd[8], with regard to delegation, pronounced as follows:-

“The maxim delegatus delegare non potest is based upon the assumption that, where the legislature has delegated powers and functions to a subordinate authority, it intended that authority itself to exercise those poweres and to perform those functions, and not to delegate them to someone else, and that the power delegated does not therefore include the power to delegate. It is not every delegation of delegated powers that is hit by the maxim, but only such delegations as are not, either expressly or by necessary implication, authorised by the delegated powers.”

[27] The dictum of Innes ACJ in Shidiack v Union Government (Minister of Interior)[9] is most apposite. The learned Judge there remarked that:

“Where the Legislature places upon any official the responsibility of exercising a discretion which the nature of the subject matter and the language of the section show can only be properly exercised in a judicial spirit, then that responsibility cannot be vicariously

discharged. The persons concerned have a right to demand the judgment of the specially selected officer.”

[28] It is trite principle that an act done in direct contravention of a peremptory provision of a statute constitutes a nullity. In Schierhout Applicant v Minister of Justice,[10] the Appellate Division confirmed that:-

“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no effect. The rule is thus stated: "Ea quae lege fieri prohibentur, si fuerint facta, non solum inutilia, sed pro infectis habeantur; licet legislator fieri prohibuerit tantum, nec specialiter dixerit inutile esse debere quod factum est." (Code 1.14.5). So that what is done contrary to the prohibition of the law is not only of no effect, but must be regarded as never having been done --- and that whether the law giver has expressly so decreed or not; the mere prohibition operates to nullify the act. (See also Brunneman ad Codicem 1.14.5). The maxim, "Quod contra legem fit pro infecto habetur", is also recognised in English law. And the disregard of peremptory provisions of a statute is fatal to the validity of the proceeding affected.”

[29] Legislation which provides for delegation is to be strictly interpreted.[11] In the matter of R v Busa[12] the Court stated that:-

“Die uiteindelike maatstaf vir die geldigheid of ongeldigheid van ‘n handeling wat nie volgens wetsvoorkrif verrig is nie, is die bedoeling van die Wetgewer (Standard Bank v Estate van Rhyn, 1925 AD 266 te bl. 274 : Messenger of the Magistrates Court, Durban v Pillay 1952 (3) SA 678 (AA) aangevoer kan word. Die eerste is die gebiedende vorm waarin die gebod gestel is deur die gebruik van die woorde “moet” en “shall”.”

[30] In the matter of Citimakers (Pty) Ltd v Sandton Town Council[13], the plaintiff’s case was that formation of the requisite opinion is a matter entrusted by the particular legislation to the defendant and that by its very nature it is not a matter which is delegable. The Court held that:-

“Where the exercise of a discretionary power is entrusted to a named body, another body cannot exercise that power in the absence of express statutory provision (see De Smith, Judicial Review of Administrative Action”, 4th ed., pp. 269-270).

An opinion-making function, much in the nature of a judicial discretion, conferred on a named body, cannot usually be delegated in the absence of specific legislative authorisation and a general grant usually lacks the required degree of specificity.

The exclusion of functions relating to the making of by-laws, rates and loans, from the general grant contained in sec. 58 (1), tends to lend definition to the remaining functions which form the subject-matter of the general grant. The maximum expressio unius est exclusio alterius favours the defendant: since the legislature saw fit to reserve certain functions to be performed only by the council and did so expressly, all its remaining functions (including the one in question) fall to be dealt with by the general grant and the function in question would therefore be delegable. The maxim is, however, of limited usefulness; its prima facie indications must yield to the “. . . purport of the enactment as a whole”. (See Consolidated Diamond Mines of South West Africa Ltd. v. Administrator, S.W.A., and Another, 1958 (4) S.A. 572 (A.D.) at p. 648.”

[31] Delegation or authorisation of the executive authority is linear. This is evident from Section 238 of the Constitution, but, significantly, in terms of the PSA, relevant to the LTAA, may occur only:-

31.1 in terms of national legislation;[14]

31.1.1 by a minister to the head of the national department;

31.1.2 by a MEC of a provincial department to the head of the such provincial department; and

31.2 only if provided for in terms of provincial legislation, by a minister to a provincial head of department.[15]

[32] The requirements for a valid assignment are much more stringent and require parliamentary approval and publication by notice in the Gazette. In addition, delegation or authorisation should be in writing in terms of Section 7A(8)(b) of the PSA. There is no allegation in the answering affidavit on behalf of the respondents that there was such an assignment, nor have compliance with requirements asserted.

[33] The Provincial Chief Director did not assert that the Minister had any authority to delegate his exclusive statutory authority and obligation to appoint a land title adjustment commissioner, or that the Minister did delegate same.

[34] The LTAA provides only for the Director General of the Department to delegate his obligations and authority to a specific class of persons. I agree with Mr HP van Nieuwenhuizen that this fortifies the presumption against delegation of the authority and obligations of the Minister and that the legislator provided that a cabinet minister was to be the sole person vested with the power and responsibility of appointing a land title adjustment commissioner.

[35] In addition, in the presence of the express distinction between the obligations and authority of the Minister and that of the Director General and that only the latter may delegate his authority and obligation, I am of the view that the Minister had no similar right.

[36] I accordingly find that no valid delegation could have existed in terms of Section 7A of the PSA and there was no valid delegation or authorisation of the authority or power in terms of Section 3(1) of the LTAA from the Minister to the Provincial Chief Director.

[38] In my view, the Minister never took a decision. In terms of the trite principle that an act done contrary to a peremptory provision of a statute constitutes a nullity.

[39] In view of my finding, I do not deem it necessary to deal with the alternative relief in the main application.

THE INTERDICT REQUIREMENTS:-

[40] Clear Right:-

40.1 It is common cause that the Trust was duly established to give effect to the objectives of the duly elected committee (“the elected committee”) of the Bultfontein community.

40.2 It is further common cause that the trust deed of the Trust provides that it was the objective of the elected committee and the Trust to facilitate and manage co-owner issues of the land.

40.3 The applicants accordingly demonstrated that the Trust has a clear right.

[42] Injury actually committed or apprehended:-

42.1 The fifth to the eighth Respondents act as “the village committee” acted as if empowered by the community with the Department, the purported commissioner, and by selling sand to contractors. These allegations were not seriously disputed by the provincial Chief Director.

42.2 In my view, the applicant clearly illustrated that it would suffer irreparable harm in the absence of the relief sought.

[43] No other ordinary remedy

In my view, based on the fact that the “village committee’’ persisted to disregard the interdictory relief granted in the main application, there was no other remedy available to the applicants.

STATEMENT AND DEBATEMENT:-

[44] The applicants are not in a position to determine what money “the village

committee” has received from its unlawful endeavours such as selling sand to

contractors.

[45] In the matter of Brown & others v Yebba CC t/a Remax Tricolor[16], the Court referred to the leading case being Doyle & another v Fleet Street Motors PE (Pty) Ltd 1971 (3) SA 760 (AD) where at 763, Holmes JA made the following pertinent observations:

"6. Where the issue of sufficiency and the element of debate appear to be correlated, the Court might, in an appropriate case, find it convenient to undertake both enquiries at one hearing, and to order payment of the amount due (if any).

7. In general the Court should not be bound to a rigid procedure, but should enjoy such measure of flexibility as practical justice may require."

[46] The Court concluded that action for an account and the debatement thereof is well recognised in our law.

[47] In the matter of Cadac (Pty) Ltd v Weber Stephen Products Company & others[17], the Supreme Court of Appeal confirmed that where the appellant was not seeking to have its illiquid claim decided by means of motion proceedings but was seeking directions as to how to proceed with the quantification of its claim for damages to which it was entitled, proceedings were competent in application proceedings.

[48] In the instant case, it seems to me that practical justice does require the debatement of the account.

COSTS:-

[49] Mr HP van Nieuwenhuizen submitted that the costs of two counsel are justified in the circumstances where the papers were voluminous and the matter is a matter of importance and deserving of in depth research and preparation.

[50] He requested a punitive cost order in respect of the interlocutory application in view of the fact that the relief granted in the main application was disrespected and flagrantly ignored. I agree that the respondents’ actions amount to a contemptuous disregard for the rule of law.

ORDER

Consequently, the following orders are made:-

IN THE MAIN APPLICATION:-

1. The third respondent is interdicted from purporting to act as land adjustment commissioner in terms of section 3 of the Land Title Adjustment Act , Act 111 of 1993 (“the LTAA”) for the immovable property described as Portion Number 2 (remaining extent) of the Farm Bultfontein 178, Registration Division JQ, North West Province, measuring 2781.2294 hectares in extent (“the Bultfontein property”);

2. Any purported actions or decisions taken by the third respondent in respect of the Bultfontein property is declared void ab initio;

3. The first respondent is directed, within 60 (sixty) days of the date of this order, to designate the the immovable property described as Number 1 of the farm Roodekuil 179, Registration Division JQ, North West Province, measuring 1079.9225 hectares in extent (“the Roodekuil Property”);

4. The first respondent is directed, within 60 (sixty) day of the date of this order, to appoint a land title adjustment commissioner for the Bultfontein Property and Roodekuil Property;

5. In the event that the Minister fails to comply with prayer 4 above, leave is granted to the applicants to approach this Court, on the same papers, duly amplified, to compel the Minister to comply;

6. The fifth to the eighth respondents who describe themselves as “the village committee” are:-

6.1 interdicted from representing or acting on or holding themselves out to be represented of or acting on behalf of the Trust or the Bultfontein community;

6.2 directed to account to the applicants within 30 (thirty) days of an order in terms hereof, duly supported by vouchers, including by:-

6.2.1 delivering any and all agreements concluded by them with any third party, including the sale and disposal of the sand from the Bultfontein Property and Roodekuil Property to various contractors during the period 2016 to 2017;

6.2.2 disclosing under oath to the applicants any and all amounts received by them in their capacities as “the village committee” together with the dates and reasons thereof, and

2.6.3 directed to pay to the Trust all amounts received by them in their capacities as “the village committee” or in respect of the properties; and

3. The respondents are ordered to pay the costs of the main application, including the costs of two counsel, jointly and severally, the one paying, the other to be absolved.

IN THE INTERLOCUTORY APPLICATION:-

1. The first, second and third respondents are interdicted from implementing or giving effect to the decisions or recommendations made by Mr FS Motla N.O., including:-

1.1 transferring the Bultfontein Property to any third party; and

1.2 registering a communal property association, including 73 Baja Boswa Ba Mmamahutsana Communal Property Association, in terms of the Communal Property Associations Act 28 of 1996, for purposes of acquiring, holding or managing the Bultfontein property; and

2. The first, second and third respondents are ordered to pay the costs of the interlocutory application, including the costs of two counsel, jointly and severally, the one paying, the other to be absolved, on an attorney and client scale.

___________

A STANTON

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION: MAHIKENG

APPEARANCES

DATE OF HEARING

: 04 JUNE 2020

DATE OF JUDGEMENT

: 17 SEPTEMBER 2020

IN THE MAIN APPLICATION:

COUNSEL FOR THE APPLICANT : ADV HP VAN NIEUWENHUIZEN

: ADV Z NCONTSA

COUNSEL FOR 1ST AND 2ND RESPONDENT : ADV T SEBOKO

FOR 3RD, 4TH, 5TH, 6TH, 7THAND 8TH RESPONDENTS: NO APPEARANCE

IN THE INTERLOCUTORY APPLICATION:

COUNSEL FOR THE APPLICANT : ADV HP VAN NIEUWENHUIZEN

COUNSEL FOR 1ST, 2ND AND 3RD RESPONDENT : ADV T SEBOKO

FOR 4TH RESPONDENTS:

NO APPEARANCE

ATTORNEYS:-

FOR THE APPLICANT

: MAREE & MAREE ATTORNEYS

11 Agaat Avenue

Riviera Park

MAHIKENG

FOR THE 1ST AND 2ND RESPONDENT : STATE ATTORNEY

Mega City Complex

________________

P L NOBANDA

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

[1] VOLUME 2, PAGE 164.

[2] VOLUME 2, PAGE 149.

[3] VOLUME 2, PAGE 149.

[4] VOLUME 2, PAGE 169.

[5] 2009 (5) SA 345 CC.

[6] VOLUME 5 PAGE 619.

[7] J R DE VILLE IN JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN SOUTH AFRICA, REVISED 1ST EDITION, LEXISNEXIS, BUTTERWORTHS, 2005 AT PAGE 141.

[8] 1965 (4) SA 628 (A) AT 639C – D.

[9] 1912 AD 642 AT 648.

[10] 1926 AD 99 AT PAGE 110.

[11] DE VILLE, P. 139.

[12] 1959 (3) SA 385 (A) 390C.

[13] [1977] 1 ALL SA 88 (W).

[14] SCHLERHOUT V MINISTER OF JUSTICE 1926 AD 99 109 – 110

[15] CITY OF JOHANNESBURG VS AD OUTPOST (55/11) [2012] ZASCA 40 (29 MARCH 2012 [20]

[16] [2008] JOL 22293 (D) [30].

[17] [2010] JOL 26135 (SCA)[17] AT PARAGRAPHS [13] AND [14].