IN THE LAND CLAIMS COURT OF SOUTH AFRICA
HELD IN RANDBURG
								          Case No: LCC32/2017
Before: Barnes AJ 
Heard On: 22 June 2017
Judgment delivered on: 22 June 2017

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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         DATE	                 SIGNATURE

                                                			                       	                                           

In the matter between:

MARIANA ROELF AND TWENTY OTHERS	 Applicant 

and
	  	
JAN FRANCOIS OOSTHUIZEN				                    First Respondent 

GEORGE MUNICIPALITY						   Second Respondent 					           

	
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JUDGMENT 

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BARNES AJ
1.	This is an urgent application in which the applicants seek the following relief:
“2.1  	Directing the First Respondent and its agents(s) to restore electricity supply to the Applicants with immediate effect;
2.2 	Directing and compelling the First Respondent to do all that is necessary to repair and restore at his own cost and labour, any electrical equipment, plugs and/or cables which he cut-off or demolished;
2.3	Interdicting and restraining the respondents from performing any other unlawful act or conduct which has the effect of switching off the electricity supply to the Applicants;
2.4	An order declaring that the First Respondent’s conduct amounts to ‘constructive’ eviction of the Applicants and therefore unlawful.
2.4  	Directing any Respondent who opposes the relief to pay the costs thereof.” 
2.	There are two difficulties with application which fall to be considered prior to an examination of the merits. 
3.	The first is that the applicants have failed to cite the owner of the property which forms the subject matter of the application (“the property”) as a respondent. The owner of the property is E–Time IT (Pty) Ltd (“the company”). Jan Francois Oosthuizen, who is cited as the first respondent, is a director of the company. Despite the first respondent drawing this to the applicants’ attention in his answering affidavit as far back as February 2017, the applicants have taken no steps to join the company as a respondent in the application.
4.	Counsel for the applicants, Mr Mbobo, could not explain the applicants’ failure in this regard and ventured to submit that it was sufficient to cite the first respondent because he is the company’s sole director. When challenged on this, Mr Mbobo conceded that the company ought to have been joined.
5.	Secondly, I am not satisfied that the applicants have made out a proper case for the urgency of the application. 
6.	Mr Mbobo submitted that this being essentially a spoliation application, the matter is inherently urgent. This may be so but it is still incumbent upon the applicants to satisfy the court that they acted with reasonable expedition after becoming aware of the incident which gave rise to the application: in the case the alleged termination of the their electricity supply on the property.
7.	 All the applicants say in this regard is that they addressed a letter of demand to the first respondent on 20 December 2016 requesting him to reconnect the electricity supply and that they applied for funding for legal assistance from the Department of Rural Development and Land Reform (“the Department”) “in or around December 2016.”
8.	The applicants then launched this application, almost two months later, on 7 February 2017.
9.	It is not apparent from the papers when the first respondent allegedly switched the applicants’ electricity supply off or precisely when the applicants’ application for funding was made to the Department. Nor is there any indication of when that application was granted.
10.	Without these facts, which are clearly known to the applicants, it is impossible for the Court to assess whether they acted with reasonable expedition in bringing their application. This is unsatisfactory and means that the applicants have failed to meet the standard necessary to justify the urgency with which their application was brought.
11.	Despite the fact the application stands to be dismissed on either of these grounds alone, I shall proceed to consider it on its merits.
12.	Ms Maritz, who appeared for the first respondent, submitted that this being a spoliation application, the applicants, if they could make out a case in this regard, would be entitled to the relief sought in prayer 2.1 of their notice of motion but not to the further declaratory and interdictory relief sought in the remaining prayers.
13.	In the view I take of the matter, it is not necessary to decide this point. This is because the relief sought in prayers 2.2 to 2.4 is necessarily consequent upon prayer 2.1 succeeding. It follows that if I find that the applicants have not made out a case for the relief sought in prayer 2.1, it is not necessary for me to consider the remaining prayers.
14.	Counsel for the parties were ad idem that in order to succeed in prayer 2.1 the applicants bore the onus to prove that:
14.1	The applicants were in peaceful and undisturbed possession of electricity on the property; and
14.2	The first respondent wrongfully deprived the applicants of such electricity.
15.	It is clear from prayer 2.1 of the notice of motion that that relief is sought against the first respondent only.
16.	While I am not necessarily convinced that the applicants have established the first element on the papers, I will assume for purposes of this judgment that they have done so. I will, in other words, assume that the applicants have proved that they were in peaceful and undisturbed possession of electricity on the property.
17.	I turn then to consider the second element.  The first difficulty that arises is that there is simply no allegation in the applicants’ founding affidavit that the first respondent terminated the applicants’ electricity supply.
18.	The founding affidavit states that the electricity supply was terminated in June 2016 by the second respondent. However, it was then re-connected and then apparently subsequently terminated. The applicants’ founding affidavit does not, however, say when this was done or by whom.
19.	As Ms Maritz correctly submitted, the applicants’ founding affidavit therefore does not make the averments necessary to sustain a cause of action of spoliation against the first respondent.
20.	The applicants sought to remedy this in reply. There they averred that the first respondent terminated the electricity supply in August 2016. Quite apart from the fact that it is not permissible for the applicants to make out their case in reply, the windeed search which forms part of the papers reveals that the property was only registered in the company’s name in November 2016. It is therefore by no means clear that the first respondent was in occupation of the property in August 2016.
21.	But in any event, quite apart from all these difficulties, the first respondent has denied that he terminated the electricity supply. He did so in response to the letter of demand of 20 December 2016, which has been referred to above, in the following terms:
“The electricity supply has not been switched off.
As far as I know certain illegal electrical connections were removed by the Municipality, but the electricity supply to the farm has not been switched off at all.
I suggest that you visit the site and speak with the officials at the George Municipality before launching any legal proceedings to apply for a remedy that the Court cannot grant (ie for the reconnection of illegal electricity connections).”     
22.	The first respondent’s version in his answering affidavit is to the same effect. The applicants have not sought a referral to oral evidence. In the circumstances, disputes of fact such as this fall to be decided on the first respondent’s version. 
23.	The applicants have therefore failed to prove that their electricity supply was spoliated by the first respondent. That being the case their application must fail.
24.	Matters in the Land Claims Court generally fall within the genre of social litigation and for this reason, this Court does not ordinarily grant costs orders. In this case however, I am of the view having regard to the defective nature of this application (which defects were drawn to the attention of the applicants by the first respondent and the application persisted in unchanged) coupled with the fact that the application could have been brought in the George Magistrates Court, it would be unfair for the first respondent to be out of pocket as a result of having to defend this matter. 
25.	For these reasons, I am ordering the applicants to pay the costs of the application.
26.	I accordingly make the following order:
1.	The application is dismissed with costs.
  
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            BARNES AJ
Acting Judge of the Land Claims Court