Umcebo Properties (Pty) Limited and Another v Mokwena and Others (5526/19) [2020] ZAMPMHC 31 (22 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 5526/19

In the matter between:

UMCEBO PROPERTIES (PTY) LIMITED First

Applicant

NICK BRITS Second

Applicant

and

NERA AMOS MOKWENA First

Respondent

JONAS SIFISO DLADLA Second

Respondent

JOHAN BHEKI DLADLA Third

Respondent

BHUTUTU MEZEN MKHWANAZI Fourth

Respondent

JAN DAN SKHOSANA Fifth

Respondent

A D SKOSANA Sixth

Respondent

JOHAN FANAMPELA SKHOSANA Seventh

Respondent

OZI MAZULWANA NZIMANDE Eighth

Respondent

SIPHO THOMAS SKHOSANA Ninth

Respondent

MPOSTOLI JAN SKHOSANA Tenth

Respondent

ABRAM MAHLANGU Eleventh

Respondent

FANYANA AMOS NTULI Twelfth

Respondent

KWETEPE MARTHA NTULI Thirteenth

Respondent

WANDER FANYANA NTULI Fourteenth

Respondent

JANE HLOPHE MAHLANGU Fifteenth

Respondent

ANDRIES EFRAIM MAHLANGU Sixteenth

Respondent

SUHLA JAN SIKHOSANA Seventeenth

Respondent

JAPIE SIKHOSANA Eighteenth

Respondent

MIDDELKRAAL COMMUNITY Nineteenth

Respondent

THE MINISTER OF POLICE Twentieth

Respondent

STATION COMMANDER MIDDELBURG,

SOUTH AFRICAN POLICE SERVICES Twenty

First Respondent

SOUTH AFRICAN POLICE SERVICES,

BLINKPAN SATELLITE OFFICE Twenty

Second Respondent

JUDGMENT

JUDGMENT HANDED DOWN VIA EMAIL DUE TO COVID 19. JUDGMENT DEEMED TO HAVE BEEN HANDED DOWN ON 22 JULY 2020.

BRAUCKMANN AJ

INTRODUCTION

[1] This spoliation application, coupled with additional interdictory relief sought by the applicants, should never have seen the inside of any urgent court, let alone on Christmas Eve. It was a matter that clearly did not deserve the Court’s urgent attention at that stage, and should have been solved by way of discussion between the parties’ respective legal representatives. There were no imminent threat to lives or property and the alleged “construction of the kraal” was stopped, and the kraal demolished.

[2] The matter was heard on 24 December 2019. The Court found the matter to be urgent, enrolled it and after hearing argument, granted a rule nisi returnable 24 January 2020 on which date, by agreement, the rule was extended and the Court issued a case management order providing for the further exchange of affidavits, exchange of heads of argument and a hearing of the main application on 14 April 2020. Due to the severe restrictions placed on the hearing of applications and litigation in general as a result of the COVID -19 pandemic and resultant state of emergency in South Africa, as well as some other technical concerns, the rule was extended further, and the matter set down to be heard on 21 JULY 2020 via Zoom link.

THE RULE NISI

[3] The rule nisi that issued called upon the first to nineteenth respondents (“the respondents”) to appear in Court on the 24th January 2020 and provide reasons why the following orders should not be confirmed:

[3.1] that he first to nineteenth Respondents (and their next-of-kin) are ordered not to: -

[3.2]. Interfere with and/or disrupt the first and second Applicant's access to Portion 14 of the Rem Extent of Middelkraal 50 IS, (“the property”); until final determination of the main Application on 24 January 2020; [Own emphasis]

[3.2] erect any structure, including a kraal, on the property;

[3.3] occupy the property;

[3.4] Participate in and encourage any, person to commit acts of misconduct at/on the property, and at the Izimbiwa Central Complex Offices, in particular, by conducting themselves in a violent manner; by interrupting operations and related activities; by blocking the entrances and preventing the second applicant and/or employees of Umcebo Properties from entering the property and/or their workplace and performing their duties, as well as Umcebo Properties' independent contractors and service providers from coming to work or leaving its premises in order to proceed home or to conduct their activities on the property and the premises of Umcebo Properties;

[3.5] Interfering in any manner with the business of Umcebo Properties; and

[3.6] Interfering in any manner with the business of the second Applicant.

[4] Further the Court ordered the applicants to serve the order as follows:

The Sheriff of the High Court is hereby authorised and directed to -

[4.1] Read out the terms of this order over a loudhailer at the gates of the property;

[4.2] Affix a copy of this Order to the gates or fences or entrance/s of the property to the extent that it is practical to do so.

[4.3]The service of this Order on the first to nineteenth Respondents is also authorised to take place in any of the following ways:

[4.3.1] by short message service (sms);

[4.3.2] by multimedia message service (mms);

[4.3.3] By Whatsapp;

[4.3.4] By Facebook Messenger;

[4.3.5] By Twitter direct message;

[4.3.6] By Viber message: or

[4.3.7] By Telegram message.

[4.4] The service of this order on the twentieth to twenty second Respondents may be effected by either the Sheriff of the High Court or any other person in the employ of the Applicants attorneys.

[4.5] The South African Police Services responsible for the area where the property is based is hereby ordered alternatively authorised to enforce and implement the terms of this Court Order.

[4.6] The service of this order on the twentieth to twenty second Respondents may be effected by either the Sheriff of the High Court or any other person in the employ of the Applicants attorneys.

[4.7] The South African Police Services responsible for the area where the property is based is hereby ordered alternatively authorised to enforce and implement the terms of this Court Order.

[4.8] In the event that one or more of the Respondents in any way interferes with the execution of this order, the Applicants are permitted to bring an application on the same papers duly supplemented, declaring him/her/them to be in contempt of court and being liable to imprisonment and/or the payment of a fine.

[4.9] The issue of costs will be determined on the return date.

[5] The main relief sought in terms of paragraph two of the notice of motion, is for an order restoring the second applicant’s

peaceful and undisturbed possession of Portion 14 of the farm Middelkraal, 50 IS, Mpumalanga (“Portion 14”). In other words, a spoliation application was brought. That relief was not entertained by Mankge AJ who heard the urgent application. The following sentence in the draft order presented to her was lined through by her: “and the second Applicant’s peaceful and undisturbed possession”. Mankge AJ also added the sentence: “until final determination of the main application on 24 January 2020”[1] [Own emphasis] after the semi-colon in paragraph 3.1 of the rule nisi. More about the deletion, and addition later.

[6] The prayers of the notice of motion in which the applicants sought the dismantling and removal of structures, materials and machinery from the Portion 14 were never required as the only structure that second applicant complained about, the kraal, have been removed on 10 December 2020 by Glencore employees already and the relief should not have formed part of the relief sought.

THE AFFIDAVITS

[7] In terms of a case management order the parties agreed to periods and time-lines within which they had to file further supplementary

affidavits and heads of argument; determined a date for the hearing of the application; extended the return date of the rule nisi. The respondents filed a supplementary opposing affidavit and the applicants a supplementary replying affidavit. The twentieth to

twenty second respondents did not oppose the application, and I was informed by Adv Cook SC, on behalf of the applicants, that they had consented to a draft order presented to me.

[8] It became common cause that the sixth, seventh, eighth, fifteenth and 16th respondents have passed away, and should not have been joined as parties to the application. They were however “replaced” by members of the community who deposed to confirmatory affidavits in terms whereof they confirmed that they are the representatives of the deceased respondents. I will return to this aspect later in the judgment.

THE SOUTH AFRICAN POLICE

[9] The Local Seat of this Division of the High Court is situated amongst a large number of coal mines, as well as power stations. There are also many businesses that render services and goods to these mines and power stations. Due to the dynamic and sometimes volatile nature of the labour market, there are often violent industrial and / or protest action, strikes and unlawful protest action experienced amongst the workforce within the jurisdiction of this Court and it is very often approached for urgent relief preventing and/or interdicting the actions.

[10] I have yet, in this Local Seat of the Division, to be allocated an application where the applicants do not join, or apply for an order against the South African Police Services (“the SAPS”) to control the crowds and to prevent obvious unlawful conduct by protestors. The usual averments in the founding affidavits are to the effect that the applicant filed a complaint with the Community Service Centre, but was informed that a court order is needed before they may act. In other words, the SAPS who is Constitutionally obliged to protect the citizens and their property needs a court order to “activate” them to come to the assistance of the victims of such crimes[2].

[11] The sacrosanct separation of powers between the various state organs is conveniently ignored by the Police in most of the cases. I pause to mention that on date of the hearing of this application I was allocated an urgent application in which the same relief, for exactly the same reason, was sought against the SAPS.

[12] The objects of the police are to prevent, combat and investigate crimes, maintain public order, protect and secure the inhabitants of the Republic, their property, to uphold and enforce the law and the national public service must be structured to function in the national, provincial and where appropriate, local spheres of government[3].

[13] The Judge President of this division also had the unfortunate opportunity to deal with an application where the SAPS held the same attitude towards complainants who sought their assistance during protest action[4]. In the matter he stated:

“[16] This court is not hearing about this kind of responses by the SAPS for the first time. When matters deserving maintenance of public order by the police are reported to the police, immediate response is required. It would constitute a wanting conduct on the part of the police not to act on a criminal activity reported to them. Our courts often hear these kind of stories against our police officials particularly in this part of the Province where mining activities are very high. To seek an order of court before an action is taken on a criminal activity can only serve to bring the criminal justice system into a disrepute.

[17] It is not the responsibility of our courts to prevent, combat and or investigate crimes. Neither is it the function of the courts to maintain public order, secure the inhabitants and their property. That is a power and authority constitutionally bestowed on the police in term of section 205 of the Constitution.

[18] If what is said about the police is true, then one wonders whether it is training offered to our law enforcement officers, or is just dereliction of duties by police officials. These concerns are what prompted this court to say something in the form of a judgment for the attention of the provincial Commissioner. It is up to the Provincial Commissioner to consider whether or not to launch an investigation with a few to avoid further occurrence of this conduct

[19] Lack of swift consequences for criminal actions by whoever can only encourage people to and take the law into their own hands and sometimes in full view of the police officers as it was apparently the situation in this matter[5].”

[14] The Judge President’s criticism of the SAPS applies equally in this instance. If the SAPS just attended the property, it could possibly have defused the situation and have avoided the urgent application. Thereby a lot of money could have been saved for all the litigants in this matter. The outcome of this case will not give any rights to either party, nor is it intended to decide whether the respondents are entitled to occupy and use Portion 14, or whether they own it.

[15] The SAPS should up their act and should attend to complaints as and when it is laid with them. One must always be mindful of separation of powers. It is for the police to ensure they do what the constitution obliges them to do. On the other hand, it is for the Provincial Commissioner to encourage his members to perform their duties and not the courts. It is for this reason that these matters have to be brought to the attention of the Provincial Commissioner[6]. In this regard Budlender AJ pointed out in City of Cape Town v Yawa and others [7] that the police are obliged to enforce the law in terms of section 205(3) of the Constitution and section 13 of the South African Police Service Act 68 of 1995. The court while recognising that the police have resource constraints continued at 285 E:

“If the South African Police Services fail to carry out their constitutional and statutory duties, the applicant's remedy is to seek an order against them.”[8]

BRIEF BACKGROUND

[16] The community previously resided on a portion of the farm Kleinfontein, 49 IS (“Kleinfontein”) and were relocated to the property during about 2006. Sixteen families were relocated, and in about 2008 further two families (“the Sikhosanas”) were also relocated to the property. The commencement of mining activities on Kleinfontein, by Umcebo Mining, a sister company of the first applicant caused the need for the relocation. Both the Umcebo mining and property companies presently fall within the Glencore group of companies.

[17] On Kleinfontein, the community occupied approximately 35 hectares of land. The land to which the community was relocated initially

comprised 181 hectares. During about 2014, 110 additional hectares were added to the property, making the aggregate area of land

approximately 291 hectares. The full extent of the land to which the community were relocated, according to the applicants amounted to 291 hectares, and is now registered as Portion 13 of the farm Middelkraal 50, Registration Division IS, Mpumalanga (“Portion 13” or “the property”). Portion 13 is a portion of the farm that was subdivided from Portion 2 of the farm Middelkraal.

[18] The respondents claim that not only was the property donated to them, but Portion 14 and a portion of the Remaining Extent of the farm Middelkraal 50 IS (“the Remaining Extent”)were included in the donation, and that they have been utilizing Portion 14 and the remaining extent since 2014 for grazing. The inclusion of the Remaining Extent, as land pointed out and allocated to the community was mentioned for the first time, in the respondents’ supplementary answering affidavit. In their answering affidavit it was claimed that the properties allocated to the respondents comprised Portions 13 and 14 of the farm Middelkraal. The deponent to the respondents opposing affidavits states that the community have been using the aforesaid properties since 2006 as grazing for their cattle and used the bales on portion 14 for fodder[9].

[19] Since the first applicant became the owner of portion 14, lease agreements were concluded between the first applicant and other

parties in relation to Portion 14 and the remaining extent. This was the position throughout the period during which the respondents

occupied Portion 13. Initially, in relation to Portion 14, leases were concluded with Mr Grobler and thereafter, leases were concluded

with second applicant for the period from December 2016 until present time (the current lease agreement ruminates on 31 July 2020). Second respondent uses Portion 14 to cultivate hay, which is harvested and bales are made of the hay to serve as fodder for second applicant’s cattle during the winter months. Both first and second applicants initially erroneously stated that second applicant used Portion 14 as grazing for his cattle. This was rectified in the supplementary replying affidavit by both first applicant and Mr Brits. Noting turns on this mistake though.

[20] On or about 6 December 2019, the first applicant was informed telephonically by second applicant that members of the Community, without any consultation and without any permission, unlawfully commenced constructing a kraal on Portion 14. The first applicant’s deponent, being at home and afraid to visit the property at the time, called Marius van den Berg, who is employed by the “first Applicant as a Production Manager”, and who stays in close proximity, to visit the Portion 14 with him. First applicant advised the respondents that the construction of the kraal, or any other structure on the property, in the absence of being granted permission to do so, was unlawful. The construction

then ceased.

[21] On 7 December 2019, Marius van den Berg, the second Applicant and applicant’s deponent (“Mr Lottering”) visited Portion 14. Mr Lottering, the first applicant’s Property Rights Manager informed the respondents’ members that they were trespassing on portion 14, that the kraal should be deconstructed and that the material must be removed from the

property. Lottering recorded that they would return on Monday, 9 December 2019, to ensure that the respondents’ members removed

the illegally constructed kraal. The kraal was the only structure on the property. In addition, no persons were occupying or residing on any portion of Portion 14.

[22] On 8 December 2019, an employee from security and Mr Lottering visited Portion 14 again. Approximately 30-40 head of cattle were grazing on Portion 14, but they did not find any of the respondents there. The cattle did not belong to second applicant, but to the respondents. The respondents had stopped the construction of the kraal but did not remove any of the material used to build the kraal. However the respondents had by then moved their cattle onto portion 14.

[23] This movement of the cattle onto Portion 14 without permission for grazing is according to applicants unlawful and interrupted second applicant’s peaceful and undisturbed possession of portion 14. On 10 December 2019, Glencore’s employees “deconstructed”

the kraal. After the deconstruction, five members of the community arrived at Izimbiwa Complex Offices and met with Mr Lottering and another Glencore employee.

[24] The five community members were asked to arrange a meeting with the Department of Rural Development and Land Reform with a view to arranging mediation to resolve this issue. The five community members indicated that they would occupy and use Portion 14, and allegedly threatened that they would disrupt the first Applicant’s mining interests and/or disrupt the operations of Umcebo Properties if they encountered any ‘interference’ from the first Applicant. No confirmation have been received from any employee at the Department of Rural Development and Land Reform regarding the arrangement of a mediation meeting.

[25] On Tuesday, 10 December 2019, the respondents attended the first applicant’s premises and were very aggressive. The first and eleventh respondents and one ‘Doctor’ addressed Mr Lottering. These respondents allegedly said that hey ‘want this ground’ (referring to Portion 14); the applicants could not stop them; they (referring respondents) would ‘sort out the farmer’ (referring to the second Applicant); they would ‘sort out the mine’ (referring to the First Applicant’s mining interests). Letters were subsequently addressed and delivered to the respondents by applicants’ attorneys seeking undertakings from them, amongst other, not to trespass onto, erect structures or occupy Portion 14. No undertakings were received or given by the respondents and applicants launched this application.

THE POINTS IN LIMINE

[26] JURISDICTION: First Respondent alleges that the respondents are labour tenants as defined in the Land Reform Labour Tenants Act[10]. They also contend in their supplementary answering affidavit: “the Middelkraal Community comprise of farmers who farm livestock, including sheep, goats, pigs, cattle and poultry and who further crop the land[11].” They state that they, their ancestors and family were employed, resided, graze and crop on the property known as Kleinfontein. They were employed by a Mr Grobler in various capacities on Kleinfontein farm. These allegations are not disputed by applicants, but they state that the aim of the Land Reform (Labour Tenants) Act (“the LTA”) is to provide security of tenure for genuine and not contrived labour tenants. Section 1 of the LTA deals with the definitions of terms in the Act. Section 1(x) of the LTA defines ‘grazing land’:- to mean ‘farm land which is used to meet the feed requirements of livestock, and which the owner has set aside for that purpose or which has been used for that purpose with the permission of the owner’. Further section 1 Section 1(xi) of the LTA defines a labour tenant as a person:

“(a) who is residing or has the right to reside on a farm;

(b) who has or has had the right to use cropping or grazing land on the farm,.. or another farm of the owner, and in consideration of such right provides or has provided labour to the owner or lessee; and

(c) whose parent or grandparent resided or resides on a farm and had the use of cropping or grazing land on such farm or another farm of the owner, and in consideration of such right provided or provides labour to the owner or lessee (own emphasis)”.

[27] The applicant’s founding affidavit shows that the owner of Portion 14 (the first applicant) has not set aside any of that land for the respondents’ to use as grazing land or to crop. Respondents never resided on the property and never had the right to do so. This is the end of the enquiry and shows that the first to nineteenth Respondents are not labour tenants, states the applicants. I agree with the submission. Section 1 (xi) of the LTA must be read adjunctively, and not disjunctively. All the requirements in the section must be present before an individual will qualify for the protection afforded in terms of the LTA. On the respondents’ own version they did not reside on the property, or Portion 14, prior to being relocated to the much larger property by first applicant in terms of the relocation agreement annexed to applicants’ supplementary affidavit. The respondents must have provided labour to the owner of the property; namely the first Applicant and the second applicant in respect of Portion 14. The respondents did not provide any labour to the first or second applicants. Portion 14 was (and still is) leased to the second applicant.

[28] The respondents are not labour tenants and cannot claim the protection in terms of the LTA. The defence is bad in law and, as will appear from the discussion of the respondents ‘next point in limine a red herring raised by respondents.

[29] Respondent then proceed to raise the point that they are being evicted from Portion 14 by applicants under the ruse of a spoliation

application. They qualify, so their argument goes, as occupiers in terms of the Extension of Security of Tenure Act (“ESTA”)[12].

[30] An ‘occupier’ is defined as follows in section 1(x) of ESTA as:

“.. a person residing on land which belongs to another person or thereafter had consent or another right in law to do so..”

Consent means ‘express or tacit consent of the owner (the first applicant) or the person in charge of the land in question [the second applicant). The respondents’ case is not that they occupy Portion 14 with the consent of the applicants, or that the land belongs to the applicants. They clearly state that Portion 14 forms part of the property that first applicant donated to them in 2006, and that is the justification for their occupation thereof. It is therefore not disputed that the respondents are occupying Portion 14, and in that regard the averments by applicants in support of the Mandament van Spolie – application is admitted.

[31] The respondents’ contention that the application is an attempt to evict the respondents from Portion 14 is ill advised and without any substance.

[32] As stated earlier in this judgment, the respondents’ reliance on this defence is also bad in law, misguided and stands to be rejected, which I herewith do.

THE LAW ON SPOLIATION AND DISCUSSION

[33] In George Municipality v Vena and Another[13], Milne JA stated as follows:

“It is a fundamental principle of our law that a person may not take the law into his own hands.”

This was confirmed in the context of the mandament van spolie in Ngqumba v Minister of Safety and Security and Others[14]. The mandament van spolie is a possessive remedy. It is not concerned with the lawfulness of the possession of the applicant, nor the ownership of the object. The applicant does not have to show that he is entitled to have possession of the property[15].

[34] The requirements for a successful reliance on the mandement van spolie are:

(a) peaceful and undisturbed possession of property and

(b) the deprivation or disruption of that possession[16].

[35] As stated earlier in this judgment, there is no dispute about the second element of the claim for a mandament van spolie. The respondents’ cattle are grazing on the land leased by second applicant from the first applicant. The respondents also use, on their own version, the bales on Portion 14. Now, only the first applicant’s affidavit contains undisturbed evidence that he, and his employees, cultivate hay on Portion 14. He states that it is then harvested annually and bales are made of the hay to feed to his cattle during the winter months. That, according to first applicant, is what he has been doing since 2016 when he started leasing Portion 14 from the first applicant. He also states that he was spoliated by the respondents during December 2019, after they stopped him from entering Portion 14, and have not returned there since as he was threatened. His undisputed version is also that during the currency of the previous lease agreements between the first applicant and himself, the respondents’ cattle, from time to time, intruded Portion 14. These intrusions were however not deliberate, and he would engage with respondents’ representative, Abram – the eleventh respondent – and the community would then remove their cattle from Portion 14[17]. He also state that prior to December 2019 :”…..there were no issues, with the Community removing cattle that strayed onto Portion 14.

The position is now different. The current grazing is deliberate. Intentional, and on a large scale[18].”

[36] Second applicant states that he has not returned to Portion 14 for fear of his own, his families and employees safety. He did not harvest the hay as a result of the forceful occupation of Portion 14 by respondents. This despite the interim order.

[37] It is important to note that the rule nisi that issued on 24 December 2019 did not contain a spoliation order. Put differently, the order by Mankge AJ on 24 December 2020 did not include an order directing the respondents to restore second respondent’s possession of Portion 14. As stated elsewhere in this judgment, Mankge AJ deleted the sentence dealing with the alleged spoliation, and the whole paragraph was phrased as an order pending the “final determination of the main application on 24 January 2020”. The draft order was prepared by applicant’s attorney and counsel. At that stage, according to Second applicant, he was threatened with harm if he was to return to Portion 14, but did not insist on the inclusion of the spoliation order.

[38] The respondents’ version is based on a bare denial of the alleged threats and intimidation. According to respondents Portion 14 and the remaining extent was included in the donated property that was pointed out to them during the consultations prior to the conclusion of the donation agreement. It is not disputed that the respondents are occupying Portion 14 by allowing their cattle to graze there. This admission is important.

The second respondent’s averments in his supporting affidavit to the applicants’ supplementary replying affidavit that after the confrontation with the respondents where they ordered him to leave Portion 14, he never returned to Portion 14, was also not denied by the respondents. Although the respondents’ case is that they have been using Portion 14 since 2006, the allegation

cannot be true. It is not denied that since the first applicant purchased the farm Kleinfontein and Middelkraal from the Grobler – group, Portion 14 and the remaining extent were leased to Mr Grobler until 2016 hereafter first applicant leased it to second applicant. The rental agreements concluded between first and second respondents are annexed to the supplementary replying affidavit. This was not denied by respondents. These averments made in the replying affidavit, strictly speaking amounting to new evidence to which the respondent could not deny or explain, should have moved the respondents’ legal representatives to apply to Court for leave to file an answer thereto. In Tantoush v Refugee Appeal Board and Others[19] Murphy J said the following:

“As these averments were made in the replying affidavit the second respondent strictly speaking had no entitlement to respond to them and in the normal course they could not be denied or explained by the respondents. Nevertheless, if the allegations by Ms Peer were untrue, or if an adequate explanation were possible, leave of the court could and should have been sought to answer them - see Sigaba v Minister of Defence and Police and another 1980(3) SA 535 (TkSc) at 550F. The respondents did not request to be given an opportunity to deal with these averments. Their failure to do so tilts the probabilities towards the applicant’s version that the consultation occurred, that it lasted 20 minutes and that Ms Bhamjee objected.” [Own emphasis]

One would have expected the respondents to object to the evidence contained in the applicants’ supplementary affidavit in so far as it incorporated new evidence, or at least have filed, with consent of the Court, which consent the Court would have been loath to refuse under the circumstances. The averments in the supplementary replying affidavit are of such importance that it being left uncontested by the respondents, as would appear from this judgment, opened the door to applicants to prove their case which it would have had difficulty in doing without such evidence.

[39] The allegations by respondents that they were in occupation of Portion 14 since 2006 can therefore not be true. If that was correct, previous the lessees of Portion 14 (previously a portion of portion 2 of the farm Middelkraal) would not have entered into the agreements and renewed it from year to year. The lease agreements that were entered into back to back, speaks for itself, and renders the respondents’ version untenable and the version by applicants more probable. I am alive to the fact that probabilities do not play a role in application procedures, but it assists to determine whether a real dispute of fact exists that cannot be resolved on the affidavits.

[40] The current lease agreement between first and second applicants was concluded on 30 July 2019. The leased land is depicted on a sketch-plan attached to the lease agreement[20]. The leased land is a portion of Portion 14, not the entire portion. The land on which the kraal was being constructed is on the applicable portion of Portion 14. It is significant that respondents, save for denying that second applicant was in possession of Portion 14, could not, and wisely refrained from denying the existence of the lease agreement as well as those concluded with Mr Grobler.

[41] In the respondents’ supplementary answering affidavit the first respondent seeks to justify the need for the additional land by asserting that one cow needs one hectare on which to feed. The respondents’ assertions are quite extraordinary when one has regard to the history of the matter. The respondent community occupied approximately 35 hectares on the farm Kleinfontein during 2006, before they were relocated to the farm Middelkraal. Mr Van den Berg, the Mine Manager of Middelkraal Mine Closure Operation, who deposed to a confirmatory affidavit annexed to the applicants’ supplementary replying affidavit, estimates that the community had between thirty and forty head of cattle at the time of the relocation. Having relocated from thirty five hectares of land to 291 hectares of land there can be no need for them to graze their cattle on other portions of land. It makes little sense for the community at that juncture to have a requirement for more land for grazing purposes.

[42] The only reasonable inference that can be made is that the respondents’ herd of cattle has grown tremendously and many

years after the relocation respondents are seeking new pastures for the grazing of their increased herd, and I must agree with the applicants submission that instead of approaching the first and second applicants in a lawful fashion, respondents simply moved their cattle onto Portion 14 and occupied it. Moreover, the respondents contend that they are entitled to occupy Portion 14 and that they possess it, not the second applicant. That contention is consistent with the second applicant’s version that he has been denied access to Portion 14 and was accordingly dispossessed against his will.

[43] The respondents’ attempt to erect the kraal on Portion 14 took place during early December 2019 is not in disputed. The question begs why the respondents would only erect a kraal on the land during December 2019 when they have been using the land for grazing of their cattle since 2006. When the respondents were confronted by applicants, they chose to follow the confrontational way, and refused to remove the kraal or their cattle from Portion 14. First applicant, being a subsidiary company of Glencore, a large mining company, requested them to remove the kraal. The respondents are lamenting about the removal of the kraal by first respondent’s agents, and calls it “self-help”, but significantly fails to institute any proceedings against applicants. Respondents also elected not to bring a counter application for spoliatory relief.

[44] A respondent in spoliation proceedings have very limited defences available to raise. The nature of the rights relied upon by the applicant for the relief is not relevant. The respondents’ defence is a simple one; they admit that on the relevant day and time in December 2020 a kraal was being constructed on Portion 14; They allege that they were entitled to do so, as they had a right to occupy the relevant property; because of this alleged right allegedly afforded to them by first applicant in 2006, they were also entitled to occupy and use Portion 14 for grazing and cropping. They also had the right to use the bales of grass that first respondent cultivated and made. In National Director of Public Prosecutions v Zuma[21], Harms DP aptly recorded the law applicable to motion proceedings:

[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma's) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, farfetched or so clearly untenable that the court is justified in rejecting them merely on the papers.

[45] With respect to the defences raised by the respondents to the application for spoliatory relief, I find that the defence is not only untenable, but also palpably implausible and far-fetched. Applying the test in the Zuma-case referred to in paragraph 44 above, I find that the respondents indeed spoliated the second applicant. The first applicant was not in possession of Portion 14 as the land was in the possession of the second applicant in terms of the lease agreement. First applicant was therefore not forcefully dispossessed and accordingly not entitled to spoliatory relief.

MIS-JOINDER

[46] In their heads of argument respondents state that it is common cause that not every respondent is alleged to have committed an act of wrongdoing, and unlawful conduct or breach of the applicants’ alleged rights. There is therefore a genuine risk, so goes the argument, that if any of the relief prayed for by applicants is granted, it would be over-broad in its operation against innocent non-participants.

[47] Interdicts can only be granted against each and every individual respondent and not against the community in general, if it is shown that each person or member of the community performed the illegal acts[22]. Respondents, referring to a judgment in Ex parte Consolidated Fine Spinners & Weavers Ltd & Another in re Consolidated Fine Spinners & Weavers Ltd & Another v Govender and Others [23] argues that the Court cannot arrogate a power to confirm the rule and make orders against respondents when it is clear that a cause of action has not been established against each person. The only common factor amongst the names respondents is that they allegedly reside in Middekraal, argues the respondent, and is no justification for making an order against people without proof of their complicity. By then requiring that person to prove his or her innocence is not according to the law and implies a reverse onus argues the respondents’ counsel. In this, the respondents allege, the applicants’ mala fides is confirmed, as well as in the fact that interdicts are sought against deceased people.

[48] Whether I should grant the relief against the community or certain individual members of the community is also not such a difficult

question. From the supplementary answering affidavit filed by respondents, it is evident that the individuals that deposed to confirmatory affidavits annexed to the main affidavit agree with, and supports the contents thereof and defences set out therein. Despite the fact that six of the initial members of the Middelkraal Community have since passed away, the rest of them appointed, and authorised the deponent Mr Nera Amos Mokwena to represent them in this application. As indicated earlier in this affidavit, the deceased respondents were substituted by other members of the community. Those individuals took it upon themselves to “represent” the deceased persons and their families in the application. If they had nothing to do with the occupation of Portion 14, why get involved in the litigation that, according to their counsel, had nothing to do with them? The following is stated in paragraph six of the respondent’s supplementary answering affidavit:

“The 1st_19th Respondents, alternatively their representatives, have deposed to confirmatory affidavits which are annexed hereto confirming the aforegoing. They also authorized me to sign the provisional answering affidavit which was lodged with this Honourable Court.”

[49] These individuals comprise the farmers resident on the property, and all of them (in their confirmatory affidavits) confirm that they “have read the affidavit of NERA AMOS MOKWENA filed herewith and I confirm the correctness insofar as same pertains to me,” It therefor confirms that they have authorised Mr Mokwena to sign the provisional and supplementary answering affidavit and to represent them in the litigation against the applicants. It is therefore clear that the individuals identifies them with the defences raised and the statements made by him in that regard. It can safely be assumed that Mr Mokwena, the individuals that attended the meetings with Mr Lottering and second applicant as well as those that supports the opposition are in agreement with Mr Mokwena and forms the Respondents. The applicants explain that they used an old list (Annexure FA 4 to the founding affidavit) of names provided to them to draft the papers and compile a list of respondents. In the circumstances it would not have been reasonable to expect the applicants to approach the community, who on the applicants’ version have already threatened and intimidated them, and occupied their land, to obtain an updated list of names of “potential respondents”. The applicants’ attorneys did address a letter to the respondents’ attorneys enquiring about an updated list of names, which correspondence was ignored by the respondents’ attorney. Only after receiving the supplementary answering affidavit

did the applicants become aware of the correct respondents who elected to represent the deceased persons. Under the circumstances it is a preposterous suggestion to make or to expect of the applicants to go around and enquire names of the self-same respondents that threatened them with harm.

[50] The 19th respondent is cited as the community. As stated earlier, the joinder of the community is not proper, and no order can be made against them. The Community Property Association (“the CPA”) was not joined as a party to the proceedings before me. Although the issue is not complex, I fail to understand why the applicants neglected to join the CPA in the proceedings.

[51] Respondents contention and selective reliance on various labour matters is misplaced, and they conveniently failed to refer judgment by the full court in Mtshali & Others v Masawi & 4 Others[24]. In the Mtshali judgment[25] the issue of citation and locus standi is dealt with. In the context of Rule 27(3) of the Uniform Rules of Court (“the Rules”) Spilg J refers to the proviso ‘that there is no prejudice to those who are affected if there can be no misunderstanding as to who falls within the group and provided the court is satisfied that the affected persons were aware that they could oppose the application if they so wished’. There can be no prejudice to the first to nineteenth respondents as there is no misunderstanding as to who the Middelkraal Community or its members (the eighteen households) are.

[52] From the returns of service by the Sherriff of the High Court included in the bundles, it is clear that the respondents are aware of the application, and all of them are opposing it. They are also represented by a very experienced and seasoned legal team in the litigation. I am satisfied that the community, represented by those individuals that deposed to confirmatory affidavits is also fully aware of the application.

[53] Mr Cook SC, on behalf of the applicants, in supplementary heads of argument[26] correctly submits that:

“The full bench in Mtshali made the following statement:

‘In matters involving ... communities the practice developed of citing the group as the party, presumably on the basis that it was an association of persons as contemplated under Rule 14 or was analogous to one. However, the safeguard in applications brought by the group was to attach to the main affidavit a list of the individual members which sets out their full names, whether they headed a household (if applicable), their identity numbers and the individual signatures of all adults.[27]”

Having regard to annexe ‘FA4’ to the founding affidavit, the safeguard has been met. The list of the names of the heads of the households comprising the Middelkraal Community as well as their identity numbers appear in annexe ‘FA4’. All respondents have filed affidavits confirming the first respondent’s opposition, on their behalves, to these proceedings.” [Own emphasis]

[54] In casu, although the respondents are not cited as a CPA, or as a voluntary association of person as provided for in rule 14 of the Uniform Rules of the High Court (“the Rules”), the respondents are identifiable. The deponent thoroughly deals with those members of the community that have passed away since 2006. Reacting to the applicants’ challenge to Mr Mokwena’s authority to represent the community, confirmatory affidavits by the different households are attached to the supplementary answering affidavit. I have referred to these affidavits above. What becomes clear is the fact that the individuals that signed the confirmatory affidavits, supports the opposition of the application and identify with the ground of opposition contained in Mr Mokwena’s affidavits. Mr Mokwena constantly refers to our cattle; the 1st – 19th respondents authorised him to depose to the affidavit; both portions were donated to the community; they deny that “we” ever engaged in self-help; “we have been utilizing the area that the Applicant now describes as Portion 14”; “this property was promised to us”; “Portion 13 cannot accommodate the huge number of livestock that the families have and the numerous people that were relocated to Middekraal”; “Even on the Applicants version of the property awarded to us, it is too small to accommodate the number of cattle as it was then. The land size must also account for our homes.” It is abundantly clear to me that at least the 18 individuals in their personal capacity took part in the occupation of portion 14 by allowing their cattle to roam and graze there.

[55] The judgments referred to by the respondents’ counsel in their heads of argument does not support the principle respondents wish to convey to the Court.

[56] The respondents misconstrue the ratio in Mondi Paper (A Division of Mondi Ltd) v Paper Printing Wood and Allied Workers Union & Others (“Mondi Paper”)[28]. This case was essentially an employment law matter. The facts are briefly that strike action had commenced. The applicant alleged that sabotage had taken place and that the non-striking employees were being intimidated during the course of picketing. The matter came before Nicholson J on the return date, where the application was dismissed on the basis that the court did not have the necessary

jurisdiction, as the matter should have been dealt with in the Labour Court. In an obiter dictum, Nicholson J opined that only hearsay allegations had been made in the papers before him. The ratio in Mondi Paper is of no assistance to the respondents in the present matter as the facts are clearly distinguishable.

[57] The respondents’ reliance on Durban University of Technology v Sphiwe Zulu & 13 Others (“DUT”)[29] is misplaced. DUT sought inter alia to interdict ‘other students of the Durban University of Technology’. The facts of the current matter are significantly different from the facts in the DUT matter. The court in DUT placed a great deal of emphasis on the use of CCTV cameras. The matter before me is distinguishable: Portion 14 is a large tract of farm land without CCTV cameras.

[58] The other cases[30] relied upon by the respondents does not support their submissions and is misconstrued. What appears to be common to all the matters is that the Court must look at the facts of each individual matter. In casu, the Court deals with an identifiable group of persons, represented by the deponent, and attorneys of their choice. The deponent often refers not only to himself, but also to them (the community) as a group.

[59] In City of Cape Town v Yawa[31] and others, Budlender AJ referred to Rogers AJ’s judgment in Communicare v the persons whose identities are unknown to the applicant where Rogers AJ, as he then was, aptly stated the following:

“I do not believe that these cases should be regarded as laying down an immutable rule that an application directed at unnamed respondents is always impermissible. It seems to me that our procedural law would be sadly lacking if that were the case. What is an owner to do where his land is illegally occupied by persons whose identities he cannot ascertain?” [Own emphasis]

[60] To the extent that the applicants failed to comply with service of the papers, join the correct respondents, or substitute the incorrect or deceased respondents, I am entitled to condone such without a formal application[32]. Having found that all of the respondents, as well as those that deposed to confirmatory affidavits provided sufficient evidence before me to establish membership of a group (the community – the nineteenth respondent) I intend condoning the non-compliance insofar as necessary. There can be no prejudice to the respondents so joined, or substituted, as they were legally represented from the beginning of the application, and had the fullest opportunity to answer to all allegations of the applicants.

THE INTERDICTORY RELIEF

[61] The relief in the rule nisi that issued on 24 December 2020 is interdictory in nature. The respondents were ordered to cease with their conduct of trespassing onto Portion 14, and to refrain from preventing second applicant from going to Portion 14. They may also not erect structures on Portion 14.

[62] The requirements for final interdict is well established in our law. To be successful an applicant must allege and prove:

a. A clear right;

b. An injury actually committed or reasonably apprehended;

c. The absence of similar protection by any other ordinary remedy[33].

Once an applicant for an interdict have satisfied the requirements the Court has no general discretion to refuse a final interdict[34]. The discretion of a court to refuse a final interdict is limited and is bound up with the question whether the rights of the party

complaining can be protected by any other ordinary remedy[35].

[63] The following facts are not disputed:

[1] The first applicant is the registered owner of Portion 14.

[2] The first and second applicants entered into a written lease agreement in respect of a portion of Portion 14 which were binding on second respondent at the time of the alleged spoliation and terminates on 31 JULY 2020.

[3] The respondents erected, or started to erect a kraal on Portion 14 on or about 6 December 2019.

[4] The applicants caused the kraal to be removed from Portion 14 without the consent of the respondents.

[5] During December and thereafter the respondents allowed their cattle to graze on Portion 14.

[6] Respondents used the bales of hay on Portion 14 as fodder for their own cattle, whilst the second respondent produced the bales for himself.

[7] The first applicant leased the property, previously known as portions 2 and 7 (now portion 14) to Mr Grobler since 2008, and to second respondent from 2016 to date.

[8] Respondents were relocated from the Farm Kleinfontein to Portion 13 of farm Middelkraal during 2006, in terms of a written relocation/donation agreement (“the donation agreement”) concluded on or about November 2006. I pause to mention that respondents, for some reason deny that the property was donated to them; this denial is bad in law, as the donation agreement was not denied. They then later on allege that the property as well as Portion 14 were donated to them. Their versions are mutually destructive and left a negative impression about their credibility. It applies to the addendum referred to in [9] hereof as well.

[9] The terms of the donation agreement are not disputed.

[10] On 02 December 2014 the respondents and first applicant concluded an addendum to the donation agreement (“the addendum”), which is also not denied. In terms of the two agreements the total extent of land donated to the respondents is 291 hectares.

[11] The terms of the addendum are not disputed.

[64] The disputed facts are:

[1] Whether before the donation agreement was entered into respondents were shown portion 14 and the remaining extent to be included in the donated land.

[2] Whether the respondents intimidated and threatened the second respondent and warned him not to return to portion 14.

[3] Whether the conduct of the respondents by occupying Portion 14 is unlawful.

[4] Whether the applicants had an alternative remedy.

[5] Whether the first applicant was entitled to spoliatory relief at all.

Taking the above into account, and after having applied the well-known Plascon Evans-rule to the facts, it soon becomes clear that no dispute of fact exists, let alone a material dispute of fact, and that applicants are entitled to the relief as would appear in the order. I turn now to discuss the requirements for interdictory relief.

A CLEAR RIGHT

[65] I do not intend repeating the facts already discussed above. The first applicant, as registered owner of Portion 14, and second

respondent as the lessee of the property (Portion 14), have a clear right to their property in the different capacities that they have an interest in it. The first applicant has the right to lease the land to second respondent, and to earn a rental income from the land. It further has the right to expect third parties, like respondents, to respect its right to ownership, and not to interfere with its contractual relationship with the second respondent, whilst second applicant also have a right to have his relationship with first applicant respected[36]. Second applicant may, in terms of the lease agreement with first respondent, use the land as per the agreement. More specifically, the second applicant is entitled to sow grass/hay on the land, harvest and bale it for his own benefit. The respondents may not interfere with this right by allowing their large herd of cattle to graze on Portion 14, or by using, as admitted them, the bales of grass cultivated and made by the second applicant[37].

[66] Respondents’ version that Portion 14 formed part and parcel of the donation agreement, and that they have been utilizing portion 14 since 2006 is not supported by the objective facts in the affidavits by the parties. Firstly, the donation agreement and addendum, together with its annexures, are patently clear which land formed part of the donation agreement and the addendum thereto. Secondly, the undisputed evidence tendered in the replying, and supplementary replying affidavit is sufficient proof that the respondents’ averments have no substance.

[67] The respondents’ contention remains to be that before they were relocated in 2006 the property in dispute was pointed out to them, and it included Portion 14 as well as the remaining extent. The averment is specifically made by Mr Mokwena, and he further states that he was present when the properties were pointed out to them. The allegation is very vague. There is no corroboration to be found for the statement. He does not say who on behalf of the respondents accompanied him when the properties were so pointed out to them. Neither does he mention who represented the first applicant when they showed the extent of the properties to the respondent. It would have assisted the first applicant in obtaining an affidavit from the relevant employees to gainsay the averments by Mr Mokwena, instead of providing the Court with affidavits by individuals that were employed by the Glencore group at the time. Indeed, no detail is given of the alleged pointing out and no clarity is given of the extent of the land allegedly pointed out. The respondents are unable to provide detail and clarity and in this regard their version, taking into account the affidavits by Mr Van Den Berg and Ms Samaria Zwane, seems improbable and fabricated.

[68] Even if Mr Mokwena is correct, the subject of the dispute revolves around immovable property, and it is not disputed that the agreements between first applicant and respondents were reduced to writing, and that such agreements are the sole record of the agreement between the parties regulating the relocation and donation of land to the community.

[69] The land occupied by the respondents were donated to them by first applicant in terms of the donation agreements as well as the addendum.[38] These two contractual arrangements govern the relationship between the parties thereto and the extent of the land made available to the respondents. The donation agreement and the addendum reflect the signatures of the heads of households and records the intention of the parties to effect a relocation of “the residents” from the Farm Kleinfontein to a portion of land described as “the property”. The plans attached to the agreement also bear the signatures of the heads of households.

[70] Clause 1.10 of the donation agreement defines the property as “a portion of the Umcebo Property to be sub-divided ... in accordance with the diagram annexed ... marked Annexure ‘D’”. Annexure D reflects that the project is described as the Middelkraal Colliery; that Portion 2 (of the Farm Middelkraal 50 IS) is to be subdivided; and that the property in question, the shaded area, comprises 181.272 hectares. This portion of the land represents the property before the Sikhosana families were also relocated to the property and additional land was made available and donated to the respondents in terms of the addendum.

[71] Clause 1.11 of the donation agreement defines the ‘Relocation Area’ to mean “that area on the Property where the Housing Scheme will be implemented, and to which the Residents will be relocated, as indicated on Plan B”. Plan B is attached the donation agreement as Annexure ‘C’ and reflects the property in question as the “New Relocation Area”, comprising approximately 181.272 hectares. The area clearly is depicted on the plan. Clause 2.6 of the donation agreement

records that the respondents confirmed their wish to relocate to the relocation area (comprising 181.272 hectares) where the housing

scheme is to be implemented.

[72] Clause 1.15 of the donation agreement defines ‘Umcebo’s Property’ to mean, “the immovable property owned and registered in the name of Umcebo, situated on Portion 2 of the farm Middelkraal 50 IS, Province of Mpumalanga”. Portion two of the farm Middelkraal 50 IS was subsequently subdivided. Having regard to Annexure “G” to the addendum, it is evident that the parties contemplated a sub-division of Portion two of the farm to create the area of donated land (± 291 hectares) and a consolidation of the remainder of Portion 2 and Portion 7. The donated land is clearly depicted on “G”. There could have been no doubt as to the location, extent and perimeters of the donated property to be utilized and farmed on by the respondents.

[73] In terms of the Surveyor General’s plan, marked “SRA5” to the supplementary replying affidavit, it is apparent that Portion 14 is consolidated from the remainder of Portion 2 and Portion 7. Portion 14 was clearly never part of the donated land. Portion 14 would significantly have increased the total extent of the donated

land, and on a reading of the two agreements, no provision is made for a further increase in the extent of land in any of the annexures,

documentation or agreements.

[74] Clause 6 of the donation agreement placed various obligations on the respondents, and in terms of clause 6.1.4 thereof, “at no time [to] disrupt the business or mining operations of Umcebo on the Umcebo Property, which [includes] the obligation to ensure that their livestock or any of their visitors do not leave the designated area of the property”. [Own emphasis]

[75] In terms of clause 17 of the donation agreement:

“This agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties regarding the subject matter hereof, other than those set out herein, are binding on the parties.”

A ‘representation’ that Portion 14 was pointed out as part of the relocation area is unfounded, inadmissible and totally improbable, as it is not contained in the donation agreement

or the addendum. The respondents’ allegations in conflict with the donation agreement and addendum. Significantly, clause 4.1 of the addendum provides that the addendum and the donation agreement constitute the “sole record of the agreement between the parties in relation to the subject matter hereof”. Clause 4.1 of the addendum also provides that the addendum “supersedes and replaces any prior commitments, undertakings and representations, whether oral or written, between the parties in respect of the subject matter hereof.” Thus, the representations that Mr Mokwena alleges were made to him, on behalf of the respondents prior to the conclusion of the agreements are in any event contractually excluded and not binding.

[76] In terms of clause 21 of the donation agreement all persons signing the agreement in a representative capacity warrant their authority to do so. The donation agreement was signed by the first to sixteenth respondents’ family representatives. All the members of each family are bound by the terms of the agreements

[77] During December 2014, the addendum to the donation agreement was concluded, recording in clause 2.1.1 thereof that: “on 3 November 2006, Umcebo, Kleinfontein and the Existing Residents entered into a written memorandum of agreement (“agreement”)

in terms of which it was agreed that the Existing Residents would be relocated to the Relocation Area on the property where a housing

scheme would be implemented”, and that Umcebo “wishes to donate further hectares in order to accommodate the addition of the Sikhosanas to the scheme so that the relocation area consists of a total of 291 hectares in extent”[39]. [Own emphasis]

[78] Clause 3.2 of the addendum amends the donation agreement by inserting the words “measuring 291 hectares in extent” after the words “Residents will be relocated”. There can therefore be no doubt or mistake in the extent or the exact location of the donated land. It is also not the respondents’ case that Portion 14 and the remaining extent are used in terms of any other agreement, but the donation agreement as amended by the addendum.

[79] No document is produced by the respondents or made available to the applicants that supports the respondents’ contention that Portion 14 was either pointed out to the respondents or promised to them as land they could use or acquire. The contention is simply untenable, and as applicants counsel put it in his heads of argument: “there [is] no room for an honest mistake on the part of the respondents. The boundaries were spelt out to the respondents, the land was surveyed and stakes and fences installed.”

[80] The respondents’ version and allegations are inadmissible. That becomes clear if what Corbett JA states in Johnson v Leal[40], which reflects the law with reference to parol evidence is taken into account. The purpose of the parol evidence rule is to prevent a party from seeking to contradict, add to or modify the terms of a written contract by referring to extrinsic evidence and in so doing effectively redefining the terms of the contract. The parol evidence rule applies to all written contracts. Parol evidence is evidence outside of the written contract – it is evidence comprising what parties did or said before, during or even after the conclusion of the contract. The parol evidence rule has two components: the integration rule and the interpretation rule[41].

[81] In terms of the integration rule, the written agreement is the “exclusive memorial” of the agreement between the parties. The written agreement contains all the express terms of the contract and as such “the contents of the document [may not be] contradicted, altered, added to or varied by parol evidence”. In Absa Technology Finance Solutions (Pty) Ltd v Michaels Bid a House[42], the Supreme Court of Appeal held that “a court may not admit evidence as to what the parties intended it to mean if that has the effect of changing the terms of which they clearly agreed”.

[82] It accordingly follows, and I find that the applicant is the owner of Portion 14 and the remaining extent and the respondents’

contention that Portion 14 was pointed out to them as being part of the donated land, is rejected as simply untenable, and in conflict with the express terms of the written agreements between first applicant and respondents. The respondents relied solely on the allegation that Portion 14 was used by them since 2006, and the fact that it was as such included in the donation. No reliance was placed on any other or subsequent agreement. I could not find any dispute of facts, let alone any material dispute of facts, that cannot be resolved by simply applying the law to the facts placed before me in the affidavits. Therefore it is abundantly clear that the applicants both have a clear right to Portion 14, as well as the rights flowing from the lease agreement. The respondents’ conduct by occupying Portion 14 for any purpose is unlawful.

[83] In my view the applicants’ most challenging hurdle to cross in satisfying the requirements for an interdict was the clear right they had to prove.

AN INJURY ACTUALLY COMMITTED OR REASONABLY APPREHENDED

[84] An injury has been committed and a continued injury is threatened, making it reasonably apprehended. The construction of the kraal, which is not in dispute, kick started the injury, and the subsequent allowing by respondents of a large herd of cattle grazing on Portion 14 constitute a continued injury. First applicant cannot, as it is supposed to do, provide vacant possession of the land in question to second applicant, and thereby will most probably not be in a position to negotiate a renewed lease term with second applicant or a third party if the respondents’ unlawful conduct continues. The undisputed fact is that the second applicant did not return to Portion 14 since he was spoliated and threatened by the respondents in December 2019. Thereby a substantial income in the form of rental for the land will be lost to first applicant, a property company. It is also not disputed that the respondents’ vast herd of cattle grazes on Portion 14, a property with hay and grass cultivated by second applicant for his own purposes at a huge cost to himself. Even the bales he produced from the grass are being used by the respondents (on their own version).

[85] The respondents claim to Portion 14 makes it reasonable to apprehend that they will continue with their unlawful conduct. Second applicant has suffered damages as a result of respondents’ self-confessed conduct, and under the circumstances the first applicant’s apprehension of harm is also reasonable. I am accordingly of the firm view that the second requirement for an interdict was satisfied by the applicants.

[86] The applicants also seek orders in favour of a third party, and orders interdicting the respondents from committing acts of

misconduct at/on the property, and at the premises of Izimbiwa Central Complex Offices, in particular, by conducting themselves in a violent manner; by interrupting operations and related activities; by blocking the entrances and preventing the second Applicant or employees of Umcebo Properties from entering the property or their workplace and performing their duties, as well as Umcebo Properties’ independent contractors and service providers from coming to work or leaving its premises in order to proceed home or to conduct their activities on the property and the premises of Umcebo Properties. No case have been made out by the first applicant for the relief sought. Apart from the threats made by the three individuals on10 December 2019, no other threats were made nor did the respondent carry out any of the threats, despite the litigation that is underway against them.

THE ABSENCE OF SIMILAR PROTECTION BY ANY OTHER ORDINARY REMEDY

[86] I have dealt with the complaints lodge with the SAPS by the applicants and the resultant, unacceptable inaction by the same SAPS. It is abundantly clear that the SAPS does not intend complying with their constitutional obligations without being favoured with a court order spurring them on to do so.

[87] Mediation, as proposed by the first applicant is not a remedy. It is certainly a means to achieve a lasting solution, and is recommended to be implemented in all disputes, of whatsoever nature. It is however not an ordinary remedy, and there is no other reasonable, ordinary or adequate remedy available to the applicants. Second applicant needs to harvest grass, and not be involved in dragged out litigation. His cattle needs the grass. In the event that he cannot harvest the grass, he would most certainly have been forced to purchase grass for his cattle. The third requirement has also been satisfied by the applicants, leaving me with no discretion but to grant the relief sought.

THE COSTS

[89] There is no reason why the costs in this matter should follow the event. The applicants were substantially successful in obtaining the relief sought. The matter is also not a simple matter and deserved the attention of two counsel.

ORDER

[90] The rule nisi that issued on 24 December 2020 is hereby confirmed and the following order is made:

1. The 6th to 8th and 15th and 16th respondents are herewith substituted with the following persons:

1.1. Sixth and seventh respondents: DOCTOR SKHOSANA;

1.2. Eighth respondent: THULANI NTULI;

1.3. Fifteenth Respondent: JOHANNAH NCANE MTHIMUNYE; and

1.4. Sixteenth Respondent: MZONDWANA LENA MAHLANGU.

2. The first to eighteenth respondents must forthwith and immediately restore the second applicant’s peaceful and undisturbed possession of Portion 14 of the farm Middelkraal 50 IS (“the property”).

3. The first to eighteenth Respondents shall not -

3.1 Interfere with or disrupt the first and second applicant’s access to the property;

3.2 Erect any structure, including a kraal, on the property;

3.3 Occupy the property by allowing any cattle or livestock to enter onto and graze on the property;

3.4 Participate in and encourage any person to commit acts of misconduct at/on the property; and

3.5 Interfering in any manner with the business of the second applicant.

4. The Sheriff of the High Court is hereby authorised and directed to –

4.1 Read out the terms of this Order over a loudhailer at the gates of the property; and

4.2 Affix a copy of this Order to the gates or fences of the property to the extent that it is practical to do so.

5. The service of this Order on the first to eighteenth respondents is also authorised to take place in any of the following ways:

5.1 By short message service (sms);

5.2 By multimedia message service (mms);

5.3 By Whatsapp;

5.4 By Facebook Messenger;

5.5 By Twitter direct message;

5.6 By Viber message; or

5.7 By Telegram message.

6. The service of this order on the twentieth to twenty second Respondents may be effected by either the Sheriff of the High Court or any other person in the employ of the Applicants’ attorneys.

7. The South African Police Services responsible for the area where the property is based is hereby authorised and ordered to assist the Sheriff of the High Court upon request therefore.

8. Costs of the application are to be paid jointly and severally by the first to eighteenth respondents, the one paying the others being absolved, with such costs to include the employment of two Counsel.

HF BRAUCKMANN.

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

REPRESENTATIVE FOR THE APPLICANT: ADV COOK SC

INSTRUCTED BY: EVERSHEDS SUTHERLAND (SA) INC

Rebecca Wise <RebeccaWise@eversheds-sutherland.co.za>

REPRESENTATIVE FOR THE RESPONDENT: MR ABU BAKR OMAR

INSTRUCTED BY: ZEHIR OMAR ATTORNEYS

yasmin@zehiromarlaw.co.za

DATE OF HEARING: 21 JULY 2020

DATE OF JUDGMENT: 22 JULY 2020.

.

[1] Page 335 of the indexed and paginated bundle (“the Bundle”).

[2] Section 205 (3) of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”).

[3] Section 205 (2) and (3) of the Constitution of the Republic of South Africa Act 108 of 1996 (“the constitution”)

[4] Impangle Logistics (Pty) Ltd and Another v All Truck Drivers' Foundation (ATDF) and Others; Mbali Coal Proprietary Limited v

Ntuthuko and Others (3647/2019; 3564/2019) [2019] ZAMPMHC 11; 2020 (1) SACR 536 (ML) (25 October 2019).

[5] Impangle Logistics (Pty) Ltd and Another v All Truck Drivers, supra, paragraphs [16] to [19].

[6] Impangle Logistics , supra, at paragraph [30].

[7] [2004] 2 All SA 281 (C) at page 285 C to D.

[8] MTSHALI AND OTHERS v MASAWI AND OTHERS 2017 (4) SA 632 (GJ) paragraph 77.

[9] Indexed and paginated bundles (“the bundles”) page 407, paragraph 72.

[10] Act 3 of 1996.

[11] Supplementary answering affidavit, paragraph 27.

[12] Act 62 of 1997.

[13] 1989 (2) SA 263 (A) at page 271 D to E.

[14] 2014 (5) SA 112 (CC) at paragraph 17.

[15] Ngewu v Union Cooperative Bank and Sugar Co Ltd 1982 (4) SA 390 (N) at 394. Ivanov v North West Gambling Board and Others 2012 (6) SA 67 (SCA) at 25, and in Ngumba, supra, page 21.

[16] Yeko v Qana 1973 (4) SA 735 (AD) at 739 E and C G van der Merwe, Sakereg, 2nd ed, page 129 and further.

[17] Bundle, page 766, paragraph 11.

[18] Bundle, page 766, paragraphs 11 and 12.

[19] 2008(1) SA 232(T) at p250 par 51.

[20] Annexure FA7: Bundle at p 81.

[21] [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at paragraph 26. 1 3 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634 635; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 55; Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC) (2008 (2) SACR 421; [2008] ZACC 13) paras 8 10.

[22] EXTRTC UNITED WORKERS FRONT AND OTHERS v PREMIER, EASTERN CAPE PROVINCE 2010 (2) SA 114 (ECB) paragraph 13: [an] 'unincorporated association' is used, it refers to nothing more than a collection of individuals who, as I will indicate hereunder, are bound to B one another by contract and who act jointly in pursuit of a common purpose. It has no existence on its own. It consequently cannot own property and has no locus standi to sue or be sued in its own name. In legal proceedings by or against the association, every member must as a result be cited as a plaintiff or a defendant, as the case

may be.’ Although immovable property may be registered in the name of the association, the individual members are limited

co-owners thereof. See LAWSA op cit in para 623; and Bamford The Law of Partnership and Voluntary Association in South Africa at pp 185 6; Levin v Transvaal Miners Association 1912 WLD 144; and Congregation of Oblates of Mary Immaculate in the Transvaal v Moluele and Others 1949 (3) SA 885 (T).

[22] EXTRTC UNITED WORKERS FRONT AND OTHERS v PREMIER, EASTERN CAPE PROVINCE 2010 (2) SA 114 (ECB) paragraph 13: [an] 'unincorporated association' is used, it refers to nothing more than a collection of individuals who, as I will indicate hereunder, are bound to B one another by contract and who act jointly in pursuit of a common purpose. It has no existence on its own. It consequently cannot own property and has no locus standi to sue or be sued in its own name. In legal proceedings by or against the association, every member must as a result be cited as a plaintiff or a defendant, as the case

may be.’ Although immovable property may be registered in the name of the association, the individual members are limited

co-owners thereof. See LAWSA op cit in para 623; and Bamford The Law of Partnership and Voluntary Association in South Africa at pp 185 6; Levin v Transvaal Miners Association 1912 WLD 144; and Congregation of Oblates of Mary Immaculate in the Transvaal v Moluele and Others 1949 (3) SA

885 (T).

[23] (1987) 8 ILJ 97 (D).

[24] 2017 (4) SA 632 (GJ).

[25] Supra, Paragraphs 190 – 201.

[26] Applicants’ supplementary heads of argument paras 16 and 17.

[27] Mtshali, supra, At para 197.

[28] (1997) 19 ILJ 84 (D).

[29] (1693/16P) ZAKZPHC 58 (27 June 2016).

[30] Kayamandi Town Committee v Mkhwaso & Others (1693/16P) ZAKZPHC 58 (27 June 2016); Illegal Occupiers of Various Erven Phillipi v Monwood Investment Company (Pty) Ltd and others (2002) 1 All SA 115 (C). and City of Cape Town v Yawa and others (2004) 2 All SA 281 (C).

[31] See footnote 27 above.

[32] Rabie v De Wit [2013] JOL 30203 (WCC) at paragraphs 15 to 16 and De Lange and Another v Eskom Holdings Ltd and Others 2012 (1) SA 280 (GSJ) at page 27.

[33] Setlogelo v. Setlogelo 1914 AD 221 at page 227; Hotz v University of Cape Town 2017 (2) SA 485 (SCA) at page 496 G to H.

[34] Hotz, supra, at page 497 A to B and the cases referred to at 497 H to I; Erasmus, Superior Court Practice, RS 13, 2020, D6-22.

[35] Erasmus, Superior Court Practice, RS 13, 2020, D6-22.

[36] Kessoopersadh and another v Essop and another 1970 (10 SA 265 (A).

[37] LAWASA, lease.

[38] Annexure SRA 2, page 515 of the bundle.

[39] Clause 2.1.3 of the addendum.

[40] 1980 (3) SA 927 (A) at page 943 B.

[41] Applicants’ heads paragraph 52 & 53.

[42] 2013 (3) SA 426 (SCA).