---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT PIETERMARITZBURG    

       CASE NUMBER : LCC 83/2007

 

Decided on:  14 September 2007

In the matter between:

PETER LANDALE TRAIN                                                                        Applicant

and

MBELE ZONDELA MSOMI                                                              1^st Respondent

BABA MSOMI                                                                                     2^nd  Respondent

NONHLANHLA MSOMI                                                                   3^{r d}  Respondent

ZUKA MSOMI                                                                                     4^th   Respondent

DOMISANI MHLABA                                                                       5^th   Respondent                                                                                                                         

                       

                                                                JUDGMENT

Ncube A J:

[1]        INTRODUCTION

This is an application for orders of Mandament Van Spolie and interdict. It is opposed. The application was brought on urgent basis and it incorporated a Rule- Nisi. I indeed treated the matter as urgent. I dispensed with rules relating to service requirements and time limits. I issued directives prescribing the manner of service of papers to the respondents and the period within which the answering and replying affidavits were to be filed.

[2]        Papers and Rule-Nisi were served on the respondents through the fifth respondent on the 2^nd day of August 2007. I had ordered the rule-nisi to operate as an interim interdict pending the finalization of issues on the date of hearing of the application. The respondents were, in terms of the directives, supposed to have filed their answering affidavits on the 7^th of August 2007 and the applicant to file his replying affidavit on the 13^th of August 2007. The application was set down for hearing on the 16^th of August 2007 in Pietermaritzburg High court.

[3]        The respondents did not file their answering affidavits on the 7^th of August 2007. In fact nothing happened from the date of service of the papers up until the 15^th of August when the first respondent deposed to an affidavit having instructed an attorney Mr. Thabiso Mbhense of the Pietermaritzburg Law Clinic.

[4]        Paragraph 5 (a) of the directives issued brought it to the attention of the parties that any party could, by telephone, fax or e-mail, through the registrar, apply for the amendment, postponement  or extension of service requirements and time limits. On the 15^th of August 2007 Mr. Mbhense phoned the registrar applying for extension of time and postponement of the hearing on 16 August 2007. The application was granted.

[5]        The date of hearing was moved from 16 August to 23 August 2007.Both parties indicated that the 23^rd of August was not suitable and they requested the 24^th of August. The request was acceded to. The matter was then heard on the 24^th of August 2007.

[6]        The Applicant is one Peter Landale Train (hereinafter referred to as “the applicant”). He farms and resides on the Gala Farm (“the farm”), he resides there with his father, his wife and other members of his family. The farm is owned by a trust known as “Gala Property Trust”. The trustees of the trust are the applicant, his wife Gillian and his father Robert. According to the Applicant he is the one who is farming on the farm and he is the managing trustee of the Gala Property Trust.

[7]        The respondents are all, but one members of the Msomi Family. The first respondent is the father to the second, third and fourth respondents. It is not clear how the fifth respondent is related to the rest of the respondents but they all reside together on Sub 2 of the farm. It is common cause, at least for purposes of this application, that the first respondent is a labour tenant on the farm and the remaining respondents are his associates. The first respondent was the only one who filed an answering affidavit.

[8]        The first prayer in terms of paragraph 2.1 of the Notice of Motion is for the order directing the first respondent to remove his cattle from Sub 6 to Sub 2 of the farm. The second prayer in terms of paragraph 2.2 is for an order prohibiting and restraining all five respondents from coming within 500 meters of the applicant’s house. The third prayer in terms of paragraph 2.3 is for the order prohibiting and restraining the respondents from communicating, threatening, intimidating or harassing the applicant or any member of his family. The fourth and last Order was for the payment of costs of the application.

[9]        When I read through the papers, I gained the impression that on paragraph 2.1 of the Notice of Motion the applicant was seeking  an interdict in the form of a Mandamus. However in his replying affidavit, the applicant expressly stated that what he was asking for was a Mandament Van Spolie. This was confirmed in argument in court by Mr. De Wet.

[10]      On the date of the hearing both parties were represented by Counsel. Mr. De Wet appeared for the applicant and Mr. Crompton for the respondents. On that day, Mr. De Wet applied for the amendment of his papers in order to make provision for additional prayers. Four prayers were added, the first one was for an order directing the respondents to pay the wasted costs occasioned by the postponement on 16 August 2007. Secondly an order directing the respondents to reduce their cattle to seven, thirdly an order directing the respondents in a form of a Rule Nisi to show cause why an order should not be made calling upon the respondents to furnish their respective cell phone numbers and service providers. I am told the reason for this prayer is the fact that the applicant has been receiving anonymous telephonic threats which he suspects are made by the respondents. The fourth additional prayer was in a form of an alternative to the first original prayer that if the first respondent did not remove his cattle to Sub 2, at least he should be ordered to take them out of the applicant’s Kikuyu pasture and keep them on the veld in Sub 6.

[11]      A new draft order incorporating additional prayers was handed in. Although Mr.Crompton did not object to the handing in of the proposed draft order, he raised an objection to additional prayers. No ruling was made on the application to add new prayers. Ruling on that application will be made in this Judgment. I shall deal with this issue later on in my Judgment.

POINTS IN LIMINE

[12]      In his answering affidavit, the first respondent raised the following points in limine.

     12.1   The applicant was not entitled to bring the application ex-parte.

     12.2    Applicant does not show any ground of urgency.

12.3    There are numerous disputes of facts which are not capable of being resolved on papers.

12.4    One of the requirements of an interdict is that the applicant must have no other remedy. Applicant had other remedies he could have reported the matter to the police.

12.5 Respondent is a labour tenant entitled to use both Portion 2 and Portion 6 of Gala Farm.

12.6 Applicant is not the owner of the farm since the farm is owned by the Gala Property trust. Therefore applicant has no Locus Standi

12.7 The applicant is cited in the papers in his personal capacity and not in his capacity as a trustee.

[13]      In paragraph 31 of his replying affidavit, the applicant conceded that the first respondent is a labour tenant. The concession was made in order to avoid disputes of fact which might require that the matter be dealt with by way of evidence.

[14]      Many of the Points in Limine raised by the respondent were never pursued by Mr.Crompton in argument. Mr. Crompton argued the Locus Standi of the applicant to bring this application in his personal capacity. In addition, Mr. Crompton argued that this court has no jurisdiction to hear an application for Mandament Van Spolie and interdict. I ruled that this court does have jurisdiction to hear the matter. The reasons for that ruling were reserved and are set out later on in this judgment. As other points were not pursued, I shall deal only with those points which were argued before me which are   locus standi and jurisdiction

LOCUS STANDI

[15]      The respondent contends that the applicant has no standing in law to bring the application in his personal capacity. The reason for this contention is that the farm in question is owned by the “Gala property Trust”. The respondent’s contention calls for the determination of the legal status of a trust. Trusts are created by the Trust Property Control Act^[11]. This Act does not give legal personality to a trust. The Act defines a “trust” as

“the arrangement through which the ownership in property of one person is by virtue of a trust instrument made over or bequeathed to the trustee or the beneficiaries subject to the control of the trustee ”.

 It is also worth mentioning that a trust is not expressly included in the definition of a “person” in the Interpretation Act^[2]. However a statute may clothe a trust with legal personality.

[16]      In Commission for Inland Revenue vs. MacNellies Estate^[3], Steyn C J expressed himself in the following terms:-

            “…. In regard to the alleged legal personality of a deceased estate for income tax purposes is apposite in regard to the inclusion of a trust as a taxable entity within the meaning of a “person”, for the purposes of estate duty. Like a deceased estate, a trust, if it has to be clothed with juristic personality, would be a persona or a legal entity consisting of an aggregate of assets and liabilities. Neither our authorities nor our courts have recognized it as such a persona or entity. The Estate Duty Act ^[4] like Income Tax Act 31 of 1941 does not define “person”. The statutory definition in section 2 of the Interpretation Act ^[5]does not mention a trust or any category of persons which would include a trust”.

It would seem therefore that a trust has no legal personality. However a trust is able to posses an estate and incur liabilities. Any liabilities forming part of the estate of a trust, vest in the trustee in his capacity as such. A trustee owns trust property for purposes of trust administration but as a trustee he has no beneficial interest therein.

[17]      The position therefore, is that if a statute confers juristic personality on a trust, it may sue or be sued in the form presented in the statute however, a trust does not normally possess juristic personality and therefore subject to the trust deed, the trustee, in his capacity as such, is the proper person to bring or defend actions in relations to a trust and also to bring applications to court in connection therewith^[6].

[18]      In Van der Westhuizen vs. Van Sundwyk^[7], it was held that because a trust is not a juristic person and its assets vest in the trustees in their capacities as trustees, all trustees must be joined in an action to enforce a right pertaining to the trust. A trustee who acts alone in the name of the trust must be properly authorized by other trustees^[8].

[19]      In Land and Agricultural Bank of SA vs. Parker and others^[9] Cameron J A expressed himself as follows:

            “It is a fundamental rule of trust law, which this court recently restated in Nieuwoud and another NNO vs. Vrystaat Mielies (EDMS) BPK^[10], that in the absence of contrary provisions in the trust deed the trustees must act jointly if the trust estate is to be bound by their acts. The rule derives from the nature of the trustees’ joint ownership of the trust property. Since co-owners must act jointly, trustees must also act jointly”.

[20]      In the present case, the applicant has brought the application in his own name. However, in paragraph 11 of his founding affidavit the applicant states:-

            

 “The trustees of the Gala property Trust are my father Robert Landale    Mackenzie Train, my wife Gillian and I.  I am duly authorized by my wife and father to bring this application in my name on behalf of the Gala Property Trust. I am the managing trustee of the trust and have always farmed Gala farm”.

It does not appear from the applicant’s papers that he has been duly authorized by his wife and father to bring this application. No resolution taken by the trustees authorizing the applicant to bring this application is attached to the papers. The trust deed might be giving authority to the applicant to litigate in his own name as a managing trustee of the Gala Property Trust. However no copy of the Trust Deed is attached to the applicant’s papers.

[21]      In the circumstances the applicant’s wife and father had to be joined in the application as co-applicants. That was not done. I conclude therefore that the applicant has no locus standi to bring an application in respect of the Mandament Van Spolie. The position is different with regard to the interdict. The interdict is for the protection of the applicant’s life and that of his family. It is his life which is threatened, it has nothing to do with the trust property.

JURISDICTION

[22]      On the date of the hearing of this application, I ruled that this court has jurisdiction to entertain the matter. I indicated that the reasons for that ruling would be incorporated in my written judgment I give the following reasons for that ruling:-.

22.1     It is common cause that the first respondent is at least for purposes of this application a labour tenant. The rest of the respondents are his associates.

22.2     The relationship between the respondents and the applicant is regulated by the provisions of the Land Reform (Labour Tenant) Act 3 of 1996.

22.3     Section 29 of the said Act provides as follows

           

            “ The court shall have jurisdiction in terms of this Act throughout the Republic and shall have all ancillary powers necessary or reasonably incidental to the performance of its functions in terms of this Act, including the power to grant interlocutory orders and interdicts, and shall have all such powers in relation to matters falling within its jurisdiction as are possessed by a provincial division of the Supreme Court having jurisdiction in civil proceedings  at a place where the affected land is situated, including the powers of such a division in relation to any contempt of the court”.

22.4     Section 33(1)(eA) confers powers on the court to determine, prescribe or amend the terms on which a labour tenant occupies or uses land.

22.5     Section 33(2) of the same Act confers powers on the court to determine any justiciable dispute which arises from the provisions of the Act.

[23]      The applicant in the present application complains about the behaviour of the labour tenants on the farm. Applicant alleges that the labour tenants harass and threaten to kill him, they aver the farm should not be owned by a white man and they claim that the farm is theirs. Clearly this is a dispute arising from the provisions of the Land Reform (Labour Tenant) Act. This court therefore has jurisdiction both in terms of section 29 and 33 to adjudicate in the said dispute and to determine or prescribe the terms on which the labour tenant shall occupy or use the land.

[24]      I was referred to the judgment of Dodson J (as he then was) in the case of Zulu and others vs. Van Rensburg and others^[11]. In my view that case is no authority for holding that this court has no jurisdiction to grant interdicts. The facts of that case are distinguishable from the facts of the present application.

MERITS  

[25]      I shall deal only with the facts relevant to an application for interdict in terms of paragraph 2.2 and 2.3 of the notice of motion. It is common cause that the first respondent was given a right of residence on sub 2 of Gala farm since approximately 1965. In addition to the right of residence the first respondent was granted the right to graze cattle and goats. The respondent grazed his cattle in sub 2 and in summer, he grazed his cattle on portion of sub 6, on the veld. Sub 2 was later sold to Dr Maxwell who agreed to provide the respondent with gazing on sub 2 throughout the year. The respondent moved his cattle to sub 2 in accordance with the agreement. Later the respondent brought his cattle back to sub 6. 

[26]      In December 2003 the first respondent lodged a labour tenancy application against the farm. The applicant alleges in his founding affidavit that he has had problems with the first respondent and his sons since 2003(paragraph 16 of the founding affidavit). The respondent never replied to this paragraph in his answering affidavit. The allegation therefore stands. The respondent drove his cattle into the applicant’s Kikuyu pasture, a spot where the respondent had never grazed his cattle before. Respondent cut and removed the gate and herded his cattle into the kikuyu pasture. Respondent admits in his answering affidavit (paragraph 36.5) that he indeed cut the fence and drove his cattle “to another camp on portion 6 of the Gala farm”.

[27]      On 14 July 2007 the applicant referred the matter to his attorneys who in turn addressed a letter to the respondent advising him that his cattle were impounded. Applicant contends that after the delivery of the letter to the first respondent, he (applicant) was approached at his house by the first respondent accompanied by the second, third, fourth and fifth respondents. They swore at him and told him that he would be killed before December this year. In reply to this allegation, the first respondent admits in paragraph 37.3 and 37.4 of his answering affidavit that there was some sort of an altercation between him and the applicant but they failed to resolve the problem. It is probable therefore that during the confrontation, threats mentioned by applicant were made.

[28]      The applicant alleges that on 7 august 2003, the first respondent was issued with a letter, instructing him to reduce the number of his cattle on the farm. When the letter was issued to the first respondent, the second respondent threatened to cause harm to the applicant. In March 2007, the applicant was threatened with death. The matter was reported at Howick police station. The applicant and his family have since then, been receiving calls threatening the applicant and his family with death and burning of their property.

[29]      According to the applicant, on 24 May 2007, he received a call from the fifth respondent advising the applicant that he (5^th respondent) was bringing the first respondent’s cattle back to sub 6 of Gala farm and that should the applicant remove the cattle from sub 6 he was going to be taught a lesson. The fifth respondent has not denied these allegations. On the date of the hearing of this application Mr. De Wet informed the court that there had been fire on the farm the previous night and a case of arson had been opened. A tractor tyre was used to start the fire.      

[30]      The situation at the Gala Farm is very bad. Tension is running high. Something must be done urgently. The Department of Land Affairs has on several occasions intervened in an endevour to solve the problem. All was in vain. Photograph R2 at page 126 of the papers shows pictures of five male persons walking on the farm. All five males are armed with sticks. This is an indication that the situation is volatile. In my view, the applicant has succeeded to prove that he is entitled to an interdict in terms of paragraph 2.2 and 2.3 of his original notice of motion.

APPLICATION FOR AMENDMENT AND INCLUSION OF ADDITIONAL PRAYERS.

[31]      As stated earlier on in this judgment Mr. De Wet applied for amendment of the papers so as to include additional prayers. Mr. De Wet handed in a draft order sought containing additional prayers. I referred the draft order to Mr. Crompton and asked for his comments thereon. Such comments have been received. The said draft order contains reliefs which were either not requested in the original notice of motion or requested in a different form. The application for amendment cannot be acceded to. The applicant had to make a formal application in terms of the rules of court, so that respondents could be afforded an opportunity to respond thereto in their answering affidavits.

[32]      The first prayer in terms of the draft order is for an order for the respondent to jointly and severally pay the wasted costs occasioned by the adjournment of the matter on 16 August 2007. The circumstances of this case do not justify such an order. Although the first respondent had signed his answering affidavit on 15 August 2007, such affidavit was filed with the Registrar on the 16^th of August 2007. In any event, the applicant had not filed his replying affidavit. The applicant signed his replying affidavit on 20 August 2007 and filed it with the Registrar on the 21^st of August 2007. The matter was therefore not ready for trial on 16 August 2007 in the absence of a replying affidavit.

[33]      On paragraph 2 of the draft order, the applicant seeks an order directing the first respondent to remove his cattle from kikuyu pasture on sub 6 to sub 2 on Gala farm. Paragraph 3 is an alternative to paragraph 2 seeking an order for the removal of the cattle from the Kikuyu Pasture to the veld on sub 6. In light of my finding on paragraph 2.1 of the notice of motion (Mandament Van Spolie), I cannot grant such an order. I found that the applicant has no locus Standi to seek that order.

[34]      In paragraph 4 of the draft order, the applicant seeks an order directing the respondent to reduce the number of the cattle to seven head of cattle within one month of the date of order. This is a new prayer which was not on the original notice of motion. The respondent had no opportunity to respond to such a prayer in his answering affidavit. Such a prayer could have been included in the original notice of motion. Mr. De Wet conceded that it was an oversight on his part not to include it. Granting such an order would cause prejudice to the respondents 

[35]      Orders sought in respect of paragraph 6 of the draft order are similar to those sought in paragraph 2.2 and 2.3 of the notice of motion. On paragraph 7, the applicant seeks an order directing the respondents to pay the costs of the present application. It is the practice of this court not to make costs orders, except where in exceptional circumstances, such an order is justified. There are no such exceptional circumstances in the present case. On paragraph 8 of the draft order the applicant seeks a Rule Nisi calling upon the respondents to show cause on or before 14 September 2007 why an order should not be made calling upon the respondents to furnish their respective cellphone numbers and service providers. This prayer was not on the original notice of motion and the respondents had no opportunity to reply to it. In any event it is the function of the police to conduct such investigations, it is not the function of this court. I conclude therefore that the applicant is only entitled to an order in terms of prayers 2.2 and 2.3 of his original notice of motion.

ORDER

[36]      In the circumstances the following order is made;

36.1     The application in terms of paragraph 2.1 of the notice of motion is dismissed.

36.2     The application in terms of paragraph 2.2 and 2.3 of the notice of motion is granted.

36.3     The Rule Nisi granted on 31^st July 2007 in terms of paragraph 2.2 and 2.3 of the notice of motion is confirmed.

36.4     No order is made as to costs.

_______________

NCUBE J

ACTING JUDGE

LAND CLAIMS COURT

Counsel for the applicant

Adv De Wet instructed by Vennemeth & Hart Attorneys                                     Fax: (033) 355 3100

Counsel for the respondents

Adv Crompton instructed by Pietermaritzburg University Law Clinic  Fax: (033) 342 2576

---