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Chris Hani Municipality v HJT Transport Mining Civils (Pty) Limited (1379/2020) [2020] ZAECGHC 130 (24 November 2020)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION: GRAHAMSTOWN

CASE NO: 1379/2020

In the between

CHRIS HANI DISTRICT                                                                           Plaintiff

MUNICIPALITY

And

HJT TRANSPORT MINING CIVILS

(Pty) LIMITED                                                                                            Defendant

JUDGEMENT

 Maswazi AJ

Introduction

[1] The Plaintiff is a Municipality established in terms of the provisions of the Local Government: Municipal Structures Act 1998. The Plaintiff is the owner of a property known as Farm 210 Grobelaars Grave, in the District of Komani, Eastern Cape (the property). This is the property that occupies a centre stage in these proceedings. Plaintiff seeks eviction of the defendant from the property and the defendant defended the action by filing an appearance to defend and later a Plea after which the Plaintiff applied for the summary judgment. It is common cause that the property is not occupied for residential purpose but rather for a commercial venture in the form of a mine. Similarly, ownership of the property by the Plaintiff is common cause.

[2] The Defendant is a company registered in accordance with the relevant corporate laws of the Republic. The Defendant came to be in occupation of the property in 2018 subsequent to being granted a mining permit by the Minister in terms of the Mineral and Petroleum Resources Development Act, 2002.

[3]The matter came before me for argument on the summary judgment application in the unopposed court.  After hearing argument, I reserved judgment with the intention to hand down same in due course.

Background

[4] On the 7th of July 2020, the Plaintiff issued summons for the eviction of the Defendant from the property. In so doing the Plaintiff relies only on the fact that it is the owner of property and that the defendant is in occupation thereof without its permission.

[5] The defendant filed its plea on the 7th of September 2020 on pain of the notice bar filed on the 1st of September 2020. The Defendant amended its plea through a notice of amendment filed on the 12th of October 2020 and perfected on the 27th of September 2020.

[6]The Plaintiff filed a summary judgment application in terms of rule 32(1) of the Uniform Rules as amended. Relying on the absence of the bona fide defence in Defendant’s plea, Plaintiff argued for the granting of the summary judgment with costs whilst the Defendant argued that it has a defence that is good in law. Both parties have filed their requisite supporting affidavits in support of their respective contentions. I find it convenient to deal first with the threshold standard that must be satisfied in an application for summary judgment, I do so hereunder.

Principles foundational to summary judgments.

[7] Summary judgment in our law dates back to more than two hundred years ago, when in 1855 the British parliament enacted what was referred to as Judicature Acts in order to afford plaintiffs speedy remedy.[1] It came to South Africa in 1917 through the Magistrates Court Act 32 of 1917 and was later adopted into the then Supreme Court through the Cape Supreme Court R 593.[2]  

[8]The locus classicus applicable in the practical adjudication of an application for summary judgment is found in Maharaj v Barclays National Bank Limited[3], where Corbet J had the following to say;

Accordingly, one of the ways in which a defendant may successfully oppose summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Whether the defence is based upon facts in the sense that material facts alleged by the plaintiff in his summons or combined summons are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. All that the Court enquires into is (a) whether the defendant has “fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have as either whole or part of the claim, a defence which is both bona fide and good in law”.

[9] Whilst I accept that the recent amendment to rule 32[4] of the Uniform Rules has somewhat effected a change in relation to applications for summary judgment, it remains my view that the principle set out in Maharaj[5] case remains a salutary and authoritative one.

[10] The current rule shifts the stage at which the plaintiff becomes entitled to apply for summary judgment. Whereas previously it could be done when the defendant files an appearance to defend now it is necessary for the defendant to file a plea first before the plaintiff can apply for summary judgment.[6]  

[11] The other innovation introduced by the new rule is the requisite allegations that the plaintiff must make in the supporting affidavit. Whilst in the old rule, the plaintiff was required to verify the cause of action and merely state that in his view the defendant does not have a bona fide defence, under the new rule, he must in addition  deal with any points of law raised in the plea to explain why the plea does not raise a triable issue. Under the old rule, it was the defendant who was required to elaborately set out his defence in such manner that the nature of the defence is fully disclosed and the facts underpinning such a defence point to the existence of a defence.[7]

[12] Under the new rule, the Plaintiff for his part is required, since the summary judgment is filed after the defendant has filed a plea, to deal with the allegations made in the plea in his own affidavit, to which the defendant must answer.

[13] What is apparent from the new rules is that the defendant must file a plea first so that if summary judgment is sought, any affidavit filed by the defendant to resist the summary judgment is consistent with the defence set out in his plea. In my view this gives the summary judgment remedy its true value from its original and classical inception, as a remedy against a defenceless defendant who files a spurious defence just so that the proceedings are delayed at the expense of a plaintiff with a meritorious claim.  What is then called for, in my view, is the consistency between the plea where the defendant alleges his defence and affidavit filed because of which the latter resist summary judgment.  A defendant who pleads a particular defence in his plea and alleges vastly different facts in his affidavit filed to resist summary judgment can hardly be said to be having a bona defence. What is more, were such tendency to be countenanced, summary judgment would lose its true value and purpose.

[14] I now turn to deal with the pleadings filed in support of the application for summary judgment both in their form as particulars of claim and plea respectively and similarly the affidavit filed in support of and against the relief sought in the application.

The pleadings

[15] The plaintiff’s particulars are not complicated at all, the plaintiff essentially seeks a rei vindicatio. This is a remedy available to an owner of a property where same is unlawfully in the possession of another. All that the plaintiff is required to do is to allege that the property is his and that the defendant is in possession thereof.[8]

[16] The first part of the requirement, namely ownership need not detain us, it is common cause that the Plaintiff is the owner of the property.

[17] The Defendant in its amended plea claims that it is in possession of the portion of the Plaintiff’s property by virtue of a mining permit issued in terms of the Mineral Petroleum Resources Development Act (the Act)[9] and therefore, so states the defendant,   possession thereof is good in law.  This amended plea was filed on the 7th of October 2020. The Defendant further pleads that it has made an application for the renewal of the mining permit to the Minister and that the Minister or someone in that office has decided that the expired permit remains valid until they have processed the renewal application.

[18]The above allegations are pursued further in the affidavit filed in response to the applicant’s affidavit supporting summary judgment. In the answering affidavit it is also pleaded that the Plaintiff should have joined the Minister in the proceedings and therefore, that the proceedings are in conflict with the Intergovernmental Relations Act.[10] This argument was not pursued at all during the hearing, I shall accordingly pay no further attention to it, in as much as it is common cause that the Defendant has no benefit to derive from the said legislation it not being an organ of state. The Intergovernmental Relations Framework Act was enacted to create a dispute resolution mechanism between and amongst organs of state as an outlet for resolving disputes before they resort to litigation.

[19] It is common cause that the permit that the Defendant relies upon as a source of his occupation of the property has expired. There is agreement between the parties that the permit is renewable, at least for a further year.

[20] What then the issue boils down to is whether the Defendant has a valid permit to continue occupying the property. That issue takes matters to the provisions of the Act. That is what I deal with below. This is so that I must later decide whether the Defendant has a bona fide defence as contemplated in the Maharaj’s case.

The applicable legislation and analysis   

[21] The Act came into effect by proclamation on the 1st of May 2004 with the aim to;

 “To make provision for equitable access to and sustainable development of the nation’s mineral and petroleum resources”[11]

[22] The Act vests the mineral resources of the country in the custodianship of the state and the Minister is charged with issuing various permits and licenses for those individuals and/or companies that seek to, prospect and mine these resources.

[23] Section 1 of the Act defines a mining permit as a permit issued in terms section 27(6), whilst it defines a mining right as a right issued in terms of section 23(1) thereof. It is clear therefore that there is a clear distinction between a mining right and the mining permit.[12] This difference does not reside only in the location of the two in the Act, but also in the length of time for which each remains valid. A mining permit can only be granted for a period of two years renewable for three periods of one year each. It can therefore safely be said that a mining permit is given for a limited period, whilst a mining right is granted for a renewable period of thirty years. In addition a mining permit is given for a limited area in respect of a given property whilst no such limitation exist in respect of a mining right.

[24] Of importance is section 24 which deals with applications for and renewal of mining rights, at subsection (5) thereof it provides;

A mining right in respect of which an application for renewal has been lodged shall despite its expiry date remain in force until such time as the application has been granted or refused.”

[25] The above provisions are replicated in other sections of the Act[13].   The mining permit, on the other hand, stands alone as the only permit which in terms of the Act does not remain in force pending an application for renewal.  Whatever the intention was for excluding it from the scope of the renewal contemplated in respect of the other rights, is not for me to decide, suffice to state that the legislature has made it so. I see no legal basis to stretch these provisions to cover mining permits.

[26]The upshot of the above is that the applicant is unable to rely on his application for the renewal of the permit as a basis justifying his continued occupation of the property. Such a right is not extended to those who occupy properties in terms of the mining permit, it is, on the contrary only a benefit for those who have applied for the renewal of mining a right, which as I have demonstrated is different from a mining permit.

[27] Mr Byleveld, who appeared for the Plaintiff, argued that not only is there no provision for the extension of the occupation on the proper interpretation of the Act, but also the permit having expired is no longer available to be renewed. For this argument he referred me to Consolidated Textile Mills Ltd v President of the Industrial and others[14] in particular the passages where Cobert JA stated;

The difference in the wording of the formulae used for fixed or determining, a further period or periods for the doing of the Act in question must, in my view be taken to have been deliberate, and this deliberate change of wording must represent a difference of intention. The only possible explanation seems to me to be that where it is not expressly stated that the fixing of the further period or periods may be before or after the expiry of the original period, then the intention was that such fixing has to take place before the expiry of this period; and; of course, where it is so expressly stated, then such fixing may take place before such expiry”

[28]This argument, in my view, can only be relevant for the latter part of the submission made on behalf of the Plaintiff, and that is, once the permit expired it was no longer available to be renewed. It might similarly be a response to an issue which featured during argument by Mr Cole who appeared for the Defendant, namely, that since a manager in the employ of the Minister who administers the Act and issues permits, wrote to the defendant advising it that its application for renewal had been received and that its permit to mine “remains valid” pending decision regarding the renewal, then the permit remains valid on the basis of the say so of the manager even if such a manager labours under the mistaken impression or misinterpretation of the Act.

[29]The factual context of Consolidated Textile case at least in so far as it deals with a situation of a public functionary extending a period that is statutorily prescribed in circumstances where firstly it has already expired, and secondly he does not have a an authority to extend same, is not far from the factual circumstances of this case. Indeed here the letter or even the testimony of the officials of the Minister’s office cannot change the meaning of the Act by creating a right where none exists. I am therefore of the view that the expiry of the permit means that the Defendant does not have a right of occupation in respect of the property.

[30] Mr Cole referred me to Audekraal Estate v City of Cape Town[15], for his   proposition that the letter from the Minister’s regional office is a decision which remains valid until set aside in review proceedings.  I requested him to avail the exact paragraph to which he relies for the proposition that the letter of the Manager in the Minister’s office extends a right of occupation in favour of the Defendant. His response was that the well-known principle is that an administrative decision is valid on the basis of its factual existence until set aside in review proceedings. This proposition is what is often and mistakenly referred to as “the Oudekraal principle”.  It has been a subject of interpretation not only by the Supreme Court of appeal itself, which made it famous, but also by the Constitutional Court.

[31] In Audekraal the Supreme Court of Appeal stated as follows at paragraph 26;

For those reasons it is clear, in our view, that the administrator permission was unlawful and invalid at the outset. Whether he thereafter also exceeded his powers in granting extension for the lodgement of the general plan thus take the matter no further. But the question that arises is what consequences follow from the conclusion that the administrator acted unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words was Cape Town Metropolitan Council entitled to disregard the administrator’s approval and all its consequences merely because it believed that they were invalid provided that its believe was correct? In our view it was not. Until the approval (and thus also consequences of the approval) is set aside by court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. ……No doubt it is for this reason that our law has always recognised that even unlawful administrative act is capable of producing legally valid consequences for long as unlawful act in not set aside.”

[32] A helpful analysis and interpretation of the above dictum is provided by Madlanga J in Corruption Watch v President of the Republic of South Africa[16], where he said writing for the majority of the Court;

An interesting question raised by the oft-cited statement of law in Oudekraal is the effect of the constitutional invalidity of Mr Nxsana’s vacation of office of the consequential act of the appointment of Advocate Abrahams. In that statement Howie P and Nugent JA said that until and administrative action is asset aside by a court in review proceedings it cannot simply be overlooked. This pronouncement has been relied upon by this court on number of occasions. Does it mean this mean that – because Mr Nxasana’s vacation of office had had not yet been set aside when Advocate Abrahams was appointed NDPP- Advocate Abrahams was validly appointed?

[33] At paragraph 32 the learned Judge continued,

What may lead some readers astray of what I have paraphrased from Oudekraal is reading it in isolation. Later Oudekraal makes it clear that where a consequential act could be valid only as a result of a factual existence – not legal validity- of the earlier act, the consequential act would be valid only for so long as the earlier act had not been set aside.[17]

[34] What makes Oudekraal inapplicable in the instant matter is the absence of its key ingredient, namely, a consequent act which derives from what is referred to an earlier act in the above statement of the Constitutional Court. Here we have an administrative functionary whose mistaken decision does not produce a consequent act that would be valid until the earlier act is set aside. The submission then that the letter written by an official who had no power to issue any permit, purporting to regularise an otherwise unlawful occupation of the Plaintiff‘s property is a misinterpretation of the Oudekraal principle.

[35] In terms of section 27 of the Act, permits are issued by the Minister upon certain consideration contemplated in the section. Whilst the Act contemplates a delegation of the powers of the Minister to a nominated official, there is no evidence to suggest that the power to issue permit was delegated to the official who wrote a letter to the Defendant purporting to validate its right of occupation of the property. 

[36] Absent then a right to occupy the property, Defendant does not have a bona fide defence that is good in law as contemplated in the Maharaj case and consequently the summary judgment application holds good.

Costs

[37] I was urged on behalf of the Defendant to order costs on a punitive scale in the event I find that the application must be dismissed. Obviously, now that I have taken a different view, so too must the costs order. Mr Byleveld, was content with costs following the result. I agree.  

[38] Accordingly, the following order shall issue;

1.    The summary judgment application is granted with costs.

2.    The Defendant is hereby ejected from Farm 210 Grobellaars Grave, District of Komani, Eastern Cape (the property).

                                                                           ____________________________

                                                                            B Maswazi

                                                                            Judge of the High Court (acting)

DATE HEARD: 10 NOVEMBER 2020

DATE HANDED DOWN: 24 NOVEMBER 2020

For the Plaintiff:        Adv Byleveld SC

Instructed by              Mcwilliams and Elliott

                                  Plaintiff’s Attorneys

                                  C/o Wheeldon Rush mere & Cole

                                  119 High Street

                                  Grahamstown

For the Defendant: Adv Cole  

Heads of argument prepared by Adv Dgmore SC

Instructed by        Stirk Yazbek Attorneys

                              Defendant’s Attorneys

                              C/o Whitesides

                              GRAHAMSTOWN

John Wallingford v The Director of Mutual Society (1880) 5 AC 685 HL 699, see also Meek v Kruger 1958 SA 154 (T) at 156F-157A

[2] See Joob Joob Investments (Pty)Ltd v Stocks Mavundla 2009 (5) SA 1 SCA

[3] 1976(1) SA418 A at 426

[4] The Old Rule 32 provided that;

Where the defendant has delivered an intention to defend , the plaintiff may apply to court  for summary judgment on each such claims in the summons as is only-

(a)   On a liquid document.

(b)   For a liquidated amount sounding in money.

(c)   For delivery of specified movable property or

(d)   Ejectment

[5] See footnote 3 above

[6] Rule 32 provides that;

 “The plaintiff may, after the defendant has delivered a plea, apply to court for summary judgment on each of such claims in the summons as is only-

(a)   On a liquid document.

(b)   For a liquidated amount in money

(c)   For delivery of specific immovable property

(d)   For ejectment   

[7] Rule 32(2)(b)

[8] 1974(3) SA 13 (A) at 20B, see also Akbar v Patel 1974(4)SA 104 (T) and Ah Mun Pak 1974(4) SA 317 (E)

[9] Act 28 of 2002

[10] Act Intergovernmental Relation Framework Act 13 of 2005

[11] Preamble to the Act.

[12] Definitions section of the Act.

[13] Section 18(5) which deals with prospecting rights, section 81(5) which deals with exploration rights and section 85(5) which deals with production rights.

[14] 1989(1) SA 302 A at 308A -308G

[16] 2018(2) SACR 442 at paragraph 31

[17] See Seale v Van Rooyen No; Provincial Government of the Northwest Province v Van Rooyen NO 2008(4)SA 43 (SCA) at para 13