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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT

PARTIES: Amahlubi Tribal Authority

VS.

Mzikayise Matiwane & Others

Case No. 743/04

2. High Court: EASTERN CAPE HIGH COURT, MTHATHA

DATE Requested: 30 April 2009

DATE DELIVERED: 21 May 2009

JUDGE(S): Milller J.

LEGAL REPRESENTATIVES –

Appearances:

2. for the Appellant(s): N/A

3. for the Respondent(s): N/A

Instructing attorneys:

1. Applicant(s): Mgxaji, Mdunge & Ass.

2. Respondent(s): R.M. Mayekiso Attorneys

CASE INFORMATION -

2. Nature of proceedings : Civil- Interdict

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE HIGH COURT : MTHATHA

CASE NO. 743/04

In the matter between:

AMAHLUBI TRIBAL AUTHORITY Applicant

and

MZIKAYISE MATIWANE 1^st Respondent

MNQUMA MUNICIPALITY 2^nd Respondent

DEPARTMENT OF AGRICULTURE

AND LAND AFFAIRS 3^rd Respondent

REASONS FOR JUDGMENT

MILLER, J.:

[1] On 18 April 2006, I granted an order in the following terms:

1. That the 1^st Respondent or any person acting on his behalf be and is hereby restrained and/or interdicted from excavating and selling sand in the area of Manqulo Administrative Area at Kei Bridge in the district of Butterworth.

2. That the 1^st Respondent or any person acting on his behalf be and is hereby restrained and/or interdicted from collecting rental from dwelling structures situate at Kei River Banks, Kei Bridge in Ndabakazi in the district of Butterworth.

[2] The 1^st Respondent has now, more than three years after the grant of the order, requested reasons for the order.

[3] The matter was properly set down for hearing in the Opposed Motion Court on 18 April 2006. On that day there was no representation in Court by or on behalf of the 1^st respondent. The applicant only was represented in Court. The matter was proceeded with despite the absence of the 1^st Respondent. The matter had been previously postponed in the Opposed Motion Court in the absence of the 1^st Respondent.

[4] The founding affidavit was deposed to by one Mvuyiswa Luzipho who is a chief and the head of the AmaHlubi Tribal Authority, the authority of which, he stated, covers all of the Administrative Areas from the Great Kei River known as Ndabakazi bordering Nqamakwe and Butterworth.

[5] The 1^st Respondent is a councillor of the Mnquma Municipality, representing Ward 22 of that municipality, which Ward is constituted by seven Administrative Areas, namely, Kobodi, Dhlephu, AmaBhele, Tongwana, Mzitheni, Ngqutu and Manqulo.

[6] The applicant alleges that the area in which the sand excavation site and the dwellings, which are the subject of this application, are situated is the Manqulo Administrative Area which falls under it’s authority. It alleges that it has for a very long time imposed levies on construction companies and other sand users who collect sand from the excavation site which is on the northern bank of the Great Kei river. The revenue derived from these levies is administered by the applicant for it’s development activities in the area.

[7] With regard to the dwellings, the applicant alleges that during 1999 it entered into an agreement with GDL – Siyaya Joint Venture in terms of which it made available 20000.00m² of land in the Manqulo Administrative Area to GDL – Siyaya Joint Venture for their use in conducting their operations of road building in the Kei cuttings and for the housing site staff and personnel. In return for the use of such land the ownership of any improvements, it was agreed, reverted to the applicant. The dwellings in question were built on that land and the ownership of such buildings reverted to and were handed over to the applicant during 2002 when the roadworks in the Kei Cuttings were completed.

[8] The applicant alleges that since the latter part of 2002 the 1^st respondent has, without it’s authority and without any reference to it, been unlawfully selling sand collected from the excavation site in question and has also been unlawfully collecting rentals from the occupants of the dwellings in question, again without any authority from the applicant.

[9] The applicant states that the said unlawful conduct of the 1^st Respondent was reported to the Mnquma Municipality, the 2^nd Respondent, but that no decisive action was taken by the 2^nd Respondent to put an end to the unlawful activities of the 1^st Respondent. The 1^st Respondent was also approached by one of the headmen under the applicant but was, it is alleged, treated with disdain and the 1^st Respondent continued with his wrongful activities.

[10] The 1^st Respondent denies that the land in question falls under the authority of the applicant. He states that it is in the Khobodi Administrative Area which falls under the authority of Chief Vuso who is the head of the AmaBhele Tribal Authority.

[11] The 1^st Respondent disputes the applicant’s allegations that it has been controlling and imposing levies on the collection of sand from the excavation site. He states that the business of collecting and selling sand at such site was started by him and others in Ward 22 during 2002. He states that the revenue received from such business is ploughed back into the community for it’s development. He says that all payments received in the business are properly receipted in the Ward’s receipt books and banked in the Ward’s banking account.

[12] With regard to the dwellings, the 1^st Respondent states that he neither admits nor denies the allegations of the applicant relating to it’s agreement with GDL – Siyaya Joint Venture as he has no knowledge thereof. He states that the dwellings were, at the time of the application, being used by contractors with the consent of Ward 22 and that the moneys derived therefrom is used for the benefit of Ward 22.

[13] The 1^st Respondent, in his answering affidavit, raised two points in limine, both relating to the locus standi of the applicant. The first of such points raised was that in terms of section 34 of the Transkei Authorities Act, 4 of 1965, the applicant had to seek and obtain the written permission of the Minister of his Department before instituting these proceedings and that in this matter such permission was neither sought nor obtained.

[14] Section 34(b) of Act 4 of 1965 provides as follows:

“Any legal proceedings by or against a tribal or regional authority may be instituted by or against the head of that authority in his official capacity provided –

3. . . . . . . . . . . .

4. That, except with the written permission of the Minister first had and obtained, no legal proceedings in regard to the ownership, occupation or acquisition of land by a tribe shall be instituted or maintained by an individual member or members of such tribe against any paramount chief, chief or headman of such tribe or against the tribal or regional authority concerned or any head thereof or against the tribe.”

It was clear to me that this point raised in limine had no merit whatsoever. This application was not instituted by an individual member or members of the AmaHlubi tribe against the tribal authority. It was instituted by the Tribal Authority itself against, inter alia, the 1^st Respondent who is a natural person. The provisions of the section are, in my view, clear and unambiguous, and on a literal interpretation thereof there is no requirement for a tribal authority to obtain written permission from the Minister or Member of the executive Council or any other person or office before instituting proceedings of this nature.

[15] As already stated the order in this matter was granted in default of the 1^st Respondent. I therefore did not have the benefit of any argument or submission by or on behalf of the 1^st Respondent. I did, however, note that heads of argument had been filed a year prior to the hearing of this matter (no doubt for use on one of the occasions when the matter was previously set down for hearing but was postponed). In these heads of argument the point in limine relating to permission having to be obtained from the Minister was not dealt with at all. Instead, it was argued that the applicant lacked locus standi because section 34 of Act 4 of 1965 indicates that the tribal authority itself is not a legal entity that is clothed with legal personality to sue and be sued in its own name because the Act provides that “any legal proceedings by or against a tribal . . . authority may be instituted by or against the head of that authority in his official capacity” I was also of the view that such argument lacked merit and could not succeed. The use of the word “may” in that provision indicates that it is not peremptory for the head of the tribal authority to sue or be sued in his official capacity. It is again clear to me that the provisions of section 34 contemplates legal proceedings by or against a tribal authority as a legal persona.

[16] The second point raised in limine by the 1^st Respondent was that the applicant lacked locus standi because the land in question falls outside the jurisdiction of the applicant. This point in limine is also interwoven with a defence raised by the 1^st Respondent on the merits of the application, namely, that the land in question falls under the jurisdiction of the AmaBhele Tribal Authority and not the applicant. I was of the view that this contention of the 1^st Respondent did not give rise to a dispute of fact which could not be resolved on the papers.

[17] One of the affidavits filed of record was deposed to by one Mzikayise Ntshingilana. He deposed to the affidavit in his capacity as an officer in the Directorate of Projects and Planning of the Department of Agriculture and Land Affairs (the 3^rd respondent). He stated therein that the land in dispute on which there are sand excavations as well as the land on which the dwelling structures are situated falls under the AmaHlubi Tribal Authority and that it is in the Manqulo Administrative Area which is territorially within the area of jurisdiction of the AmaHlubi Tribal Authority. He stated further that the AmaBhele Tribal Authority in terms of the territorial demarcation of Administrative Areas has no jurisdiction over the said banks on the Kei River. He stated that he made these averments based on his own firsthand knowledge of the area as well as basing them on official maps kept at his office, which maps depict the demarcation and zoning of the lands and Administrative Areas in the district of Butterworth at large and in the land adjacent to the Kei River.

[18] The evidence of Mr Ntshingilana that the dwellings in question are situated in the Manqulo Administrative Area which is within the jurisdiction of the AmaHlubi Tribal Authority is corroborated by the agreement entered into with GDL – Siyaya Joint Venture (annexure ML 1 to the founding affidavit) which states, inter alia, “ . . . Manqulo Tribal Administration represented by Chief Magadla will make available an area of land approximately 20000m² in area . . . “ It is apparent from the papers that Chief Magadla is the acting headman of Manqulo Administrative Area and that he is a subject of the AmaHlubi Tribal Authority.

[19] I was accordingly of the view that it could be safely concluded on the papers that both the said excavation site and the land on which the dwellings are situated fall within the jurisdiction of the AmaHlubi Tribal Authority. I accordingly accepted the contention of the applicant that the applicant has the right to control and administer the land and dwellings in question.

[20] I was also of the view that the fact that the 1^st Respondent was a Councillor of the Mnquma Municipality representing Ward 22, which includes Manqulo Administrative Area, did not bestow him with the right to collect and sell sand from the excavation site in question and to collect rentals for the dwellings in question without having first obtained the authority from the applicant.

[21] I was also of the opinion that the 1^st Respondent’s activities of collecting and selling sand and the collecting of rentals for the dwellings was not done on behalf of the municipality or even with the approval and sanction of the municipality. At a meeting of councillors it was resolved, inter alia, to investigate the selling of sand by the 1^st respondent and that the 1^st Respondent be warned that he must, in Ward 22, carry out the mandate of the Mnquma Local Council and not his own mandate. Also, it is apparent from the copies of the receipts for payment received for the selling of sand that were placed before Court by the 1^st Respondent that such receipts were not officially issued by the municipality.

[22] I was also of the view that the 1^st Respondent’s contention that the applicant has not shown that it has no other remedy other than to approach this Court lacked merit. The applicant, in its endeavour to stop the activities of the 1^st Respondent, had approached and made an appeal to both the municipality and the 1^st Respondent but to no avail.

[23] The applicant, besides the relief he was granted by the order, had asked the Court for the grant of further relief, namely, that the 1^st Respondent be ordered to pay to the applicant all moneys already collected from the selling of sand and the rental of the dwellings. I did not grant such relief, which amounted to a claim for damages, because the amount claimed was not quantified or specified and it would have been improper to order the 1^st Respondent to pay an indeterminate amount of money. I was, however, satisfied that the case presented by the applicant satisfied all the requirements for the interdicts he sought and I therefore issued the order referred to in paragraph [1] hereof.

JUDGE OF THE HIGH COURT

REQUESTED ON : 30 APRIL 2009

DELIVERED ON : 21 MAY 2009

ATTORNEYS FOR APPLICANT :Mgxaji, Mdunge & Ass.

ATTORNEYS FOR 1^ST RESPONDENT :R. M. Mayekiso Attorneys

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