Sibiyanye Rustenburg Platinum Mines (Pty) Ltd v Unlawful Occupiers of 108 Properties situated in the Rustenburg Area and Others (UM83/2020) [2020] ZANWHC 47 (31 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: UM83/2020

In the matter between:

SIBANYE RUSTENBURG PLATINUM MINES Applicant

(PTY) LTD

AND

UNLAWFUL OCCUPIERS OF 108

1st Respondent

PROPERTIES SITUATED IN THE

RUSTENBURG AREA

SHIELA MABALE-HUMA

2nd Respondent

VUSI WOLF

3rd Respondent

KOKETSI MOREI

4th Respondent

LINDA HLATSHWAYO

5th Respondent

ELSHA MJEKULA

6th Respondent

MABALE HUMA

7th Respondent

NDWAKE MMPMZI

8th Respondent

VIRGINIA MQANQEUI

9th Respondent

GLADYS MOLEME

10th Respondent

JANE MPOLOKENG

11th Respondent

TUMISANG GAMA

12th Respondent

SHIMA KWAPENG

13th Respondent

THOMBINKOSI SITHOLE

14th Respondent

ISAAC DHLAMINI

15th Respondent

RUSTENBURG LOCAL MUNICIPALITY 16th Respondent

REASONS FOR JUDGMENT

DJAJE J

[1] The applicant approached this court on an ex parte basis on 27 May 2020 and the following order was granted against the respondents:

“1. That the form and service provided for in the Uniform Rules of Court are dispensed with and that the application may be heard on an ex parte basis and as one of urgency as contemplated in terms of Rule 6(12) of the Uniform Rules of Court.

2. That a rule nisi be granted with immediate effect in the following terms:

2.1 That the first respondents be interdicted and restrained:

2.1.1. from threatening the applicant’s employees and representatives with physical violence and from intimidating and verbally and physically assaulting the applicant’s employees and representatives;

2.1.2. from effecting any repairs and/or structural and/or cosmetic changes, whether amounting to improvements or not, and/or whether amounting to necessary or other maintenance in respect of the houses already occupied as listed on “FA5”.

2.1.3. from erecting any movable or immovable structures on the property whether attached to the dwelling on the property or not, as listed in Annexure FA5;

2.1.4 from preventing access to the property by the Sheriff of this honourable court for purposes of service of any order granted pursuant to this Notice of Motion as listed in Annexure “FA5”;;

2.1.5. from preventing or frustrating access to the properties by representatives of the applicant, between the hours of 08h00 to 17h00, on Mondays to Saturdays, for purposes of photographing the properties, and obtaining the identity of the individuals residing in or occupying the properties, whether temporarily or otherwise as listed in Annexure “FA5”.

2.2 the respondents be and are hereby interdicted and restrained from coercing, co-opting and/or facilitating or assisting in any manner, whether directly and indirectly, with the occupation of any individuals to any of the properties of the applicant referred to in annexure “FA5” to the founding affidavit, described as the “Vacant properties”.

2.3 that the Second to Fifteenth Respondents be and are hereby interdicted and restrained from taking occupation whether temporarily or otherwise, of any of the applicant’s properties and/or from entering any of the Applicant’s properties referred to in annexure “FA5” to the founding affidavit, whether occupied by the first respondents or not;

2.4 that the sixteen Respondent be and is hereby directed to commence, forthwith upon receipt of this order with the compilation of a report to be provided by email to the Attorney of record of the Applicant no later than the 25th of June 2020, containing the following information:

2.4.1 whether the first respondents will be rendered homeless in the event that an eviction order is granted;

2.4.2 whether the first respondents are capable of securing alternative accommodation by their own means;

2.4.3 whether any of the first respondents were homeless prior to taking occupation of any of the occupied properties;

2.4.4 how many individuals are occupying each of the occupied properties;

2.4.5 the relationship between the individuals occupying the occupied properties;

2.4.6 whether the first respondents’ homelessness is due to their own failures to take reasonable steps to procure alternative accommodation;

2.4.7 the nature and extent of the accommodation which the Municipality can and will provide upon the eviction of the first respondents.

2.5 That the first respondents on demand of the Sheriff of this honourable court or a duly authorised representative of the Sheriff of this honourable court provide him/her with their full names and surnames, and copies of their identity documents, alternatively their identity numbers.

2.6 That the first respondents provide the Sheriff of this honourable court with copies of all documents evidencing agreements of purchase, entered into between the applicant and the occupiers of the properties.

3. That the respondents be and are hereby called on to show cause on the 25th day of June 2020 at 10h00 or so soon thereafter as the application maybe heard, why the above order should not be made final.

4. That a copy of this order together with the notice of motion, founding affidavit, and annexures thereto, be served on the first respondents by:

4.1 placing a copy thereof at the gate of and/or entrance and/or front door, as the circumstances may permit, of each of the occupied properties;

4.2 sending a copy of this order, notice of motion, founding affidavit and supporting documents, by email, to each of the email addresses of the respondents, which appear from the founding affidavit;

4.3 dispatching by way of WhatsApp message, a copy of this order, notice of motion, and founding affidavit and annexures thereto, to each of the mobile telephone numbers of each of the respondents;

4.4 by placing 20 copies of the notice of motion, founding affidavit and annexures thereto, and this order at the Rustenburg Police Station;

5. That the costs of the application be reserved for determination on the return day.”

[2] The return date was 25 June 2020 and on that day by agreement the order was extended to 29 July 2020.

[3] On 29 July 2020 having heard argument on behalf of all the parties I made the following order:

“1. THAT: A Rule nisi granted on the 27th day of MAY 2020, as amended, is confirmed as follows:

1.1 No relief is granted against the second, Fifth, Seventh and Eight Respondents and the rule is discharged against them with no order as to costs.

1.2 The First Respondents, being those individual who appear from Annexure “A” to the answering affidavit of Mr Phiri on pages 778-779 of the record and those individuals who appear from the response by Kgomo Attorneys to the Applicant’s notice in terms of Rule 7 (1) of the Uniform Rules of Court at pages 634 – 641 of the record as well as the Sixth and Twelfth to Fifteenth Respondents are interdicted and restrained:

1.2.1 from threatening the Applicant’s employees and representatives with physical violence and from intimidating and verbally and physically assaulting the Applicant’s employees and representatives;

1.2.2 from effecting any repairs and/or structural and/or cosmetic changes, whether amounting to improvements or not, and/or whether amounting to necessary or other maintenance;

1.2.3 from erecting any movable or immovable structures on the property whether attached to the dwelling on the property or not;

1.2.4 from preventing access to the property by the Sheriff of this honourable court for purposes of service of any order granted pursuant to this notice of motion;

1.2.5 from preventing or frustrating access to the properties by representatives of the Applicant, between the hours of 08h00 to 17h00, on Mondays to Saturdays, for purposes of photographing the properties, and obtaining the identity of the individuals residing in or occupying the properties, whether temporarily or otherwise.

1.2.6 from coercing, co-opting and/or facilitating or assisting in any manner, whether directly or indirectly, with the occupation of any individuals to any of the properties of the founding affidavit, described as the “Vacant properties” as well as the properties listed in annexure “D” at pages 234-245 of the record and those identified in annexure “A” at pages 261-293 of the record;

1.3 The Third, Fourth, Ninth, Tenth and Eleventh Respondents are interdicted and restrained form taking occupation whether temporarily or otherwise, of any of the Applicant’s properties and/or from entering any of the Applicant’s properties referred to in annexure FA5 to the founding affidavit as well the properties listed in annexure “D” at pages 234-245 of the record and those identified in annexure “A” at pages 261-293 of the record whether occupied by the First Respondents or not.

2. THAT: The Sixteenth Respondent provide the Applicant’s attorney of record and file with this Honourable Court the report referred to in paragraph 2.4 to 2.4.7 of the ex parte order dated the 27 MAY 2020 within 10 days from date hereof.

3. THAT: A copy of this order shall be served on all of the Respondents through their legal representatives.

4. THAT: The Respondents, excluding the Second, Fifth, Seventh and Eight Respondents are ordered to pay the cost of the application on an attorney and client scale jointly and severally to include costs of two counsel.”

[4] I now furnish the reasons for the above order.

[5] It is not all the respondents who oppose the granting of the final order. The second, fifth and seventh respondents do not oppose the relief sought and as a result no order is sought against them. The other respondents who oppose the application are in two groups and will be referred to as respondents.

Background

[6] The applicant sought an interim interdict on an ex parte basis for an order as follows:

2.1.2. from effecting any repairs and/or structural and/or cosmetic changes, whether amounting to improvements or not, and/or whether amounting to necessary or other maintenance;

2.1.3. from erecting any movable or immovable structures on the property whether attached to the dwelling on the property or not;

2.1.4 from preventing access to the property by the Sheriff of this honourable court for purposes of service of any order granted pursuant to this notice of motion;

2.1.5. from preventing or frustrating access to the properties by representatives of the applicant, between the hours of 08h00 to 17h00, on Mondays to Saturdays, for purposes of photographing the properties, and obtaining the identity of the individuals residing in or occupying the properties, whether temporarily or otherwise.

2.2 That the respondents be interdicted and restrained from coercing, co-opting and/or facilitating or assisting in any manner, whether directly and indirectly, with the occupation of any individuals to any of the properties of the applicant referred to in annexure FA5 to the founding affidavit, described as the “Vacant properties”.

2.3 interdicting and restraining the second to fifteenth respondents from taking occupation whether temporarily or otherwise, of any of the applicant’s properties referred to in annexure FA5 to the founding affidavit, whether occupied by the first respondents or not;

2.4 directing the sixteenth respondent to commence, forthwith upon receipt of the order granted in terms of this notice of motion with the compilation of a report to be provided by email to the attorney of record of the applicant, no later than the ----- of June 2020, containing the following information:

3. That the order in paragraph 2 to 2.6 shall operate as a rule nisi calling upon the respondents to show cause on the _______day of June 2020 at 10h00 or so soon thereafter as the application maybe heard, why the order should not be made final.

[7] In 2015 the applicant and Rustenburg Platinum Mines (“RPM”) entered into a sale and Purchase agreement in terms of which the

applicant purchased from RPM immovable properties owned by RPM. Included in the said assets was 133 immovable properties situated

within the Rustenburg Local Municipality. Some of the properties have not been transferred to the applicant by RPM, but possession of the said properties has been given to the applicant. It was the intention of the applicant to sell the said immovable properties upon transfer from RPM. As a result the properties were vacant. These immovable properties are houses in the suburban area of Rustenburg with the value ranging from R440 000.00 and R1 700 000.00. According to the applicant, 108 of the said houses are illegally occupied and there will be an application brought for the eviction of the illegal occupiers. This current application was not brought for the purpose of evicting any of the occupants.

[8] The applicant was prompted to launch this application on the basis that the occupants of the houses were intimidating, threatening and assaulting its personnel when inspecting the houses. Some of the houses have been sold but the new owners cannot get access to them. In bringing this application the applicant wants to protect its property from unlawful occupiers and to ensure the safety of its personnel.

[9] In order for a final interdict to be granted herein, the applicant must satisfy the court that the requirements of a final interdict are present. Firstly, the applicant has to establish a clear right. It is the applicant’s case that as the owner of the properties it has the right to peaceful and undisturbed possession of the properties. It was argued that the sale agreement signed by RPM and the applicant establishes a right to the properties by the applicant. As a result no other party has a better right to the properties than the applicant.

[10] On the second requirement of an injury committed, the applicant argued that its rights are unlawfully threatened and infringed by the respondents. It was submitted that the respondents are acting violently against the representatives of the applicant and as a result the applicant is not able to access its properties. Lastly, the applicant argued that there is no other remedy available to it as the police have refused to assist and indicated that this is a civil matter.

[11] The respondents raised a point in limine for non-joinder of several parties in this application. Firstly, the respondents argued that there was non-joinder of Rustenburg Platinum Mines (“RPM”). The reason for this was that the applicant averred in the founding affidavit that some of the properties have not been transferred to it from RPM. As such, RPM is an interested party and should have been joined. The second party that the respondents argued should have been joined is Kopano Property Agents as their sign was found in one of the properties. Thirdly, the respondents argued that the people who bought property from the applicant should have been joined to the proceedings as well. It was further argued that the applicant should have joined the Rustenburg Taxi Association as it was alleged that they would assist to accelerate the unlawful occupation of the properties if the application was served on the respondents. The other party that the respondents argued in the non-joinder is the South African Police Service and the Deeds Registry.

[12] The second point in limine raised by the respondents was the applicant’s lack of locus standi. According to the respondents the applicant is relying on a sale agreement that is unsigned and of no legal effect. Further that the applicant has not acquired title to the properties and has not established that it is in possession of the properties. The respondents also submitted that the applicant has no locus standi for the properties that have already been sold to other people.

[13] The respondents argued that the applicant failed to disclose material facts which would have led to the court hearing the ex parte application dismissing it. It was argued that the applicants did not inform the court of the minutes of the meeting of 17 March 2020 where the information appears that the properties were occupied since November 2019 and the reasons for such occupation stated as well. Further that the occupants were willing to pay for the houses and that the applicant was to compile a list of all the properties and their allocation. The respondents’ case was that had the court been advised of the minutes it would not have granted the rule nisi as the minutes demonstrate that the respondents are willing to cooperate with the applicant.

[14] On the merits the respondent argued that the applicant failed to satisfy the requirements of an interim interdict. It is the respondents’ argument that the applicant does not have a prima facie right let alone a clear right in this matter. This argument by the respondents is based on the averment that the applicant lacks locus standi to bring this application. Further that as the applicant indicated that some of the properties have not been transferred from RPM, there is no prima facie right to rely on by the applicant.

[15] According to the respondents, the applicant has failed to allege that it will suffer irreparable harm as the properties have already been occupied and as such the horse has bolted. Further that the applicant alleges that the respondents will damage the properties but no such damage has been proven. On the issue of the alleged threats of intimidation, the respondents argued that the applicant has not instituted any criminal charges against any of the respondents to demonstrate the harm suffered or to be suffered.

[16] Lastly it was contended by the respondents that the applicant failed to prove that there is no other satisfactory remedy. The respondents argued that there are available remedies for the applicant. Firstly, the applicant could bring an eviction application in terms of the Prevention of Illegal Occupiers Act and then institute criminal charges for malicious damage to property against the respondents. The respondents argued that another remedy available for the applicant was to lay criminal charges or engage the respondents in relation to the occupation of the properties.

[17] On the point in limine of non-joinder raised by the respondents it is first to consider the reason for those parties to have been joined.

[18] Rule 10 of the Uniform Rules of Court deals with the joinder of parties and causes of action. The Rule provides that:

“10 Joinder of Parties and Causes of Action

(1) Any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one action against the same defendant or defendants against whom any one or more of such persons proposing to join as plaintiffs would, if he brought a separate action, be entitled to bring such action, provided that the right to relief of the persons proposing to join as plaintiffs depends upon the determination of substantially the same question of law or fact which, if separate actions were instituted, would arise on each action, and provided that there may be a joinder conditionally upon the claim of any other plaintiff failing.

(2) A plaintiff may join several causes of action in the same action.

(3) Several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.

(4) In any action in which any causes of action or parties have been joined in accordance with this rule, the court at the conclusion of the trial shall give such judgment in favour of such of the parties as shall be entitled to relief or grant absolution from the instance, and shall make such order as to costs as shall to it seem to be just, provided that without limiting the discretion of the court in any way-

(a) the court may order that any plaintiff who is unsuccessful shall be liable to any other party, whether plaintiff or defendant, for any costs occasioned by his joining in the action as plaintiff;

(b) if judgment is given in favour of any defendant or if any defendant is absolved from the instance, the court may order:

(i) the plaintiff to pay such defendant's costs, or

(ii) the unsuccessful defendants to pay the costs of the successful defendant jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the successful defendant, he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess, and the court may further order that, if the successful defendant is unable to recover the whole or any part of his costs from the unsuccessful defendants, he shall be entitled to recover from the plaintiff such part of his costs as he cannot recover from the unsuccessful defendants;

(c) if judgment is given in favour of the plaintiff against more than one of the defendants, the court may order those defendants against whom it gives judgment to pay the plaintiff's costs jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the plaintiff he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess. (5)

Where there has been a joinder of causes of action or of parties, the court may on the application of any party at any time order that separate trials be held either in respect of some or all of the causes of action or some or all of the parties; and the court may on such application make such order as to it seems meet.”

[19] In Judicial Service Commission and Another v Cape Bar Council and another 2013 (1) SA 170 (SCA) at par [12] the court held that:

“It has now become settled law that the joinder of a party is only required as a matter of necessity- as opposed to a matter of convenience- if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned….”

[20] The respondents’ case was that RPM, Kopano Agency, Rustenburg Taxi Association, Deeds Registry and the individuals who bought some of the properties should have been joined in these proceedings. This matter is about allegations of unlawful occupation of immovable properties of the applicant. According to the applicant the properties have been bought from RPM subsequent to the signing of a sale agreement. Despite some of the properties not having been transferred to the applicant, there is no challenge of the agreement between the applicant and RPM in respect of those properties. RPM does not have any direct or substantial interest in these proceedings as a result of the sale agreement signed with the applicant.

[21] The same goes for Kopano Agency, Rustenburg Taxi Association and Deeds Registry. All these parties do not have any interest in these proceedings. The fact that the applicant mentioned Kopano’s board being found at one of the properties does not entitle them to any interest in these proceedings. Of importance is that the property is occupied by the respondents. As far as Rustenburg Taxi Association is concerned the applicant in the founding affidavit averred that the unlawful occupiers of the properties were assisted by the Association. No order is sought against the association in these proceedings. The point in limine of non-joinder was baseless and was dismissed.

[22] On the issue of locus standi the applicant attached the pages of the sale agreement to show that it has an unfettered right to deal with those properties. None of the respondents was able to successfully challenge the sale agreement between RPM and the applicant. During the meeting of 17 March 2020, none of the respondents questioned the applicant’s ownership of the properties which were the subject of the meeting. Instead the respondents conceded that they are in unlawful occupation and give a long history of how they occupied the said properties which for the sake of these proceedings, is found to be irrelevant.

[23] In order for the applicant to obtain an interdict against the respondents, the three requirements of an interdict must be established. The said requirements being a clear right, irreparable harm and no alternative remedy. See: Setlogelo v Setlogelo 1914 AD 221

[24] As far as establishing a clear right is concerned, the applicant relied on the sale agreement of the properties from RPM. The agreement was attached to the founding affidavit. This agreement was never challenged except that the respondents required a signed copy of the agreement which was then attached to the replying affidavit.

[25] The applicant’s case was that there were acts of violence perpetrated on its officials when they attempted to establish who the occupants of the properties were. In response, none of the respondents said anything about the violence alleged by the applicant. All that the respondents argued was that the applicant should have laid charges against those who perpetrated acts of violence. The applicant also argued that the unlawful occupation of the properties was continuing and hence the need for an interdict. Again on this point, none of the respondents denied that the occupation of the properties was continuing.

[26] Lastly, the applicant had to establish the absence of an alternative remedy. The applicant argued that as the occupants of the properties were not allowing the applicant’s representatives access to the properties. The applicant sought the assistance of the police in Rustenburg but was turned away and told that since the issue of ownership of property is a civil matter, the police could not assist. The applicant therefore had no other option but to approach court as it could not establish the identity of the occupants of the houses. In order for the applicant to launch eviction proceedings, the identity of the occupants is important. The applicant did attempt to engage with the respondents at the 17 March 2020 meeting and was requested to compile a list of the properties and who was in occupation thereof. The occupants refused to cooperate. There was no other remedy available for the applicant.

[27] The application was found to be urgent when the applicant first approached this court on 27 May 2020. At that time the applicant alleged that there was ongoing occupation of its property and that on its own triggered urgency.

[28] As far as costs are concerned there was no reason why costs should not follow the results.

[29] It was for the above reasons that the order in paragraph [1] was granted.

_________________________

J T DJAJE

JUDGE OF THE HIGH COURT

DATE OF HEARING

: 29 JULY 2020

DATE OF REQUEST FOR REASONS : 03 AUGUST 2020

DATE OF REASONS :

31 AUGUST 2020

COUNSEL FOR THE APPLICANT : ADV P DANIELS SC with

ADV I OSCHMAN

COUNSEL FOR THE

: ADV RAKATANE

2ND, 5TH, & 7TH RESPONDENT

COUNSEL FOR THE

: ADV MOSIKILI

1ST, 3RD, 4TH, 9TH & 10TH RESPONDENT

COUNSEL FOR THE

: ADV MUZA

1ST, 6TH, 12TH & 15TH RESPONDENT