Unlawful Occupiers of 108 Properties Situated in the Rustenburg Area v Sibanye Rustenburg Platinum Mines (Pty) Ltd (UM83/2020) [2021] ZANWHC 44 (22 July 2021)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

CASE NO: UM83/2020

In the matter between:

UNLAWFUL OCCUPIERS OF 108 PROPERTIES

APPLICANT

SITUATED IN THE RUSTENBURG AREA

AND

SIBANYE RUSTENBURG PLATINUM

RESPONDENT

MINES (PTY) LIMITED

LEAVE TO APPEAL JUDGMENT

DJAJE J

[1] This is an application for leave to appeal the order and reasons handed down in the main application. The applicants as in the main application were represented by two counsel and their arguments where they are similar will be dealt with together. The leave to appeal is against the whole judgment of this Court. The applicants have raised

several grounds of appeal which are contained in affidavits and not on a notice of leave to appeal. Those grounds will be dealt with as they were argued during the hearing of the matter.

[2] The test to be applied in an application for leave to appeal is set out in section 17 (1)(a) of the Superior Courts Act 10 of 2013 which provides that:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;”

[3] Some of the grounds raised by the applicants in this application for leave had been dealt with in the judgment and it is therefore not necessary to repeat them in this judgment. The applicants argued that the respondent failed to prove that it had a clear right over the properties and as such this Court erred in finding that the respondent had proved ownership of the properties. This issue of locus standi and ownership was dealt with in the judgment and there are no prospects of success on this point. The applicants also argued that there was a material non-disclosure by the respondents when approaching this Court on an ex-parte basis. The said non-disclosure was in relation to the fact that at that time all the properties had been occupied. Further that there had been a meeting with the Municipality on 17 March 2020 during which the Municipality was to mediate between the parties as an alternative remedy. This argument does not in any way affect the case of the respondent for an interdict. The meeting of 17 March 2020 is not material to the respondent’s case for an interdict. All that transpired at the said meeting was for a list of occupiers to be compiled and that did not happen. The said minutes did not affect the respondent’s rights over the said properties. It also cannot be regarded as an alternative remedy to the case of the respondent.

[4] Another ground raised was that there was a dispute of fact in relation to the dates of occupation of the properties. The other dispute of fact was regarding the alleged acts of violence and intimidation. These issues were not considered to be relevant for the respondent to make out its case for an interdict. The respondent had to establish that its properties were unlawfully occupied and that when trying to access them, there were acts of violence and intimidation.

[5] The applicants argued that they did not act frivolously against the respondent and as such the punitive cost order granted was not warranted. Further that they are vulnerable people. It is trite that costs are in the discretion of the court. In this matter the applicants did not in any way make out a case of being vulnerable. Their actions towards the respondents’ employees of being violent and intimidating can be labelled as culpable. Further that there was no argument made on their behalf that they are unemployed or not able to earn an income. There are no prospects of success on this issue of costs.

[6] On 4 June 2021 the application for leave to appeal could not proceed and the reason for such was that the applicants had not filed their heads of argument. As a result the matter was postponed and the attorneys of the applicants were ordered to file affidavits to explain why they should not be ordered to pay the wasted costs de bonis propriis. They have both complied and filed affidavits explaining why the heads were not in the court file on 4 June 2021. The explanation by the attorneys was to the effect that the heads of argument had been filed as far back as December 2020 but due to the Court file not being properly indexed and paginated the heads could not be located. It is indeed correct that the heads of argument filed by Kgomo Attorneys bears the registrar’s date stamp of 27 November 2020. There was no date stamp of December 2020 for the heads filed by Mabuza Attorneys.

[7] It is important to note that an applicant in a matter has the responsibility to ensure that the file is ready for hearing, which was not done in this case. This resulted in the file being brought to my chamber without being properly indexed and paginated. This is unacceptable conduct by the attorneys of the applicants. Adverse costs orders are ordinarily only made against such functionaries where they have acted improperly or with mala fides. See: Absa Bank and Others v Robb 2013 (3) SA 619 (GSJ) at 621.

[8] The Constitutional Court in SA Liquor Traders’ Association and others v Chairperson, Gauteng Liquor Board and others 2009(1) SA 565 (CC) held that:

“ An order of costs de bonis propiis is made against activities where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy”(own emphasis).

[9] The applicants’ attorneys failed to ensure that the Court file was properly indexed and paginated. In their explanations they fail to deal with the reason why the court file on 4 June 2021 was in the state that it was. I see no reason why the applicants should be mulct with the wasted costs of 4 June 2021. There was no level of professionalism in the way that Kgomo Attorneys and Mabuza Attorneys handled the Court file on 4 June 2021. I see no reason why they should not pay the wasted costs of 4 June 2021 de bonis propriis which should include the costs of two counsel.

[10] Having considered the submissions on behalf of both the applicants and the respondent, I am of the view that there are no reasonable prospects of success in appeal of this matter. Consequently the application should fail and costs to follow the result.

Order

[11] Consequently, the following order is made:

1. The application for leave to appeal is dismissed.

2. The applicants are ordered to pay costs of the application which shall include costs of two counsel.

3. The applicants’ attorneys (Kgomo Attorneys and Mabuza Attorneys) are ordered to pay the wasted costs of 4 June 2021 de bonis propriis.

J T DJAJE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING

: 18 June 2021

DATE OF JUDGMENT

: 22 July 2021

COUNSEL FOR THE APPLICANT : ADV MOSILIKI

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

COUNSEL FOR THE APPLICANT : ADV MUZA

1ST, 6TH, 12TH & 15TH

COUNSEL FOR RESPONDENT : ADV DANIELS SC with ADV OSCHMAN