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Blaines Property (Pty) Ltd and Others v Macevele and Others (045/2021) [2023] ZALMPTHC 14 (12 December 2023)

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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

 

 

CASE NO: 045/2021

(1)       REPORTABLE: YES/NO

(2)       OF INTEREST TO THE JUDGES: YES/NO

(3)       REVISED.

Signature

Date: 2023/12/07

 

In the matter between:

 

BLAINES PROPERTY (PTY)LTD                                                               1ST APPLICANT

 

RISINGA COMMUNITY TRUST                                                                 2ND APPLICANT

 

MASHANGU SOPHIE CHAUKE N.O                                                        3RD APPLICANT

 

MIHLOTI QUEEN MATHEBULA N.O                                                         4TH APPLICANT

 

MARIA TINYIKO CHABALALA N.O                                                          5TH APPLICANT

 

SAMUEL MOKOSANA MATHEBULA N.O                                                6TH APPLICANT

 

HUDSON MAKAMBENI N.O                                                                     7TH APPLICANT

 

GIYANE GODFREY MAKAMU N.O                                                          8TH APPLICANT

 

TSUNDZUKANI EUNICE HLUNGWANI N.O                                             9TH APPLICANT

 

SETH VUKEYA N.O                                                                                 10TH APPLICANT

 

HAPPY SAMUEL NYAMBI N.O                                                               11TH APPLICANT

 

LIVASI VUTHLARI MABASA N.O                                                            12th APPLICANT

 

and

 

PHIKANI SOLOMON MACEVELE                                                       1ST RESPONDENT

 

MITITI TRADITIONAL COUNCIL                                                           2ND RESPONDENT

 

LIMPOPO PROVINCIAL GOVERNMENT:

DEPARTMENT OF CO-OPERATIVE GOVERNANCE

HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS                      3RD RESPONDENT

            

COLLINS CHABANE MUNICIPALITY                                                  4TH RESPONDENT

 

DEPARTMENT OF RURAL DEVELOPMENT                       

AND LAND REFORM                                                                           5TH RESPONDENT 

 


JUDGMENT

 

MONENE AJ

 

[1]        A truthful but saddening and alarming paragraph in the heads of argument of the applicants in casu reads thus:

 

          “The allocation of permission to occupy for business purposes at rural areas is governed by the second and third respondents, however the actual registration is done by the third respondent. The Bantu Areas Land Regulations No. R.188, 1969 is the current instrument used to guide allocation of land through permission to occupy. The regulations are still applicable.”(My prideless emphasis)

 

[2]        It really is a serious indictment on the three arms of the state and on all of us involved in any way with the law and a dishonor to them that gave life and limb for the freedom of this country that thirty years into an alleged break with the abhorrible colonial and apartheid past we still have to have any reference to apartheid “legal” instruments such as regulations named Bantu whatever.

 

[3]        Whether this is as a result of laxity on the part of those amongst us who ought to have done something but did not or is an unforeseen result of us having opted for transformation over replacement of our legal milieu is unclear, but it really pains this court, as it should the reader, that law should in this day and age, to any extent, be sourced from colonial apartheid era relics.

 

[4]        In these proceedings the applicants, holders of a permission to occupy land(“PTO”) over a portion of rural land referred to as portion 9 of the Farm Plange 221LT (“the farm”), seek to have a counter PTO held by the first respondent over the same land nullified, to have a declarator in favour of their own PTO and to have the first respondent ejected from the farm.

 

 [5]       The application is opposed by the first respondent who argues that although the applicants do have a PTO around the disputed land, which PTO predates his own, that PTO does not extend to the portion he occupies on which he currently runs a brickyard. He avers that he was lawfully granted a PTO by the second respondent and should thus not be ejected.

 

[6]        Accordingly, in circumstances where clearly the second respondent granted and/or purported to grant permissions to occupy the same land to two different personas at two different times, the crisp question to answer is which entity or person’s occupation should legally hold sway.

 

THE FACTS IN BRIEF

 

[7]        In September 2013 Makhosani Thomas Mugwambani, the managing director of the first applicant and deponent to the founding affidavit, applied for a PTO for a business site to the second respondent, the latter being the traditional authority responsible for governance of a rural area named Mtititi Plange Village in Malamulele, Limpopo.

 

[8]        Pursuant to that application he paid an amount of R7 000.00.

 

[9]        The second respondent referred the application approvingly to the municipality under which they are located, to wit, the fourth respondent.

 

[10]      Consequently the third respondent, having processed the application through its Town Planning and Aesthetic Committee approved the first applicant’s application to develop a filing station and shopping complex on the land for which a PTO was granted, to wit Mtititi-Plange.

 

[11]      Post the successful commissioning of a variety of compliance-geared reports by the first applicant over a few years from 2013, such as the Surveyor-General diagram, the site plan, the flood line report, the traffic highlight Impact report and the environmental management report as well as payment of requisite levies  on 8 January 2018, the Department of Rural Development and Land reform (“the fifth respondent”) approved the first applicant’s intended development plans on the land in question couching their approval in the following terms:

 

          “Kindly be informed that the application for a long-term lease on portion 9 of the farm Plange 221 LT, measuring 10.0448 hectares in extent to Blaines Properties (Pty) Ltd for the development of a shopping complex and a filing station has been approved by the Minister of the Department of Rural Development and Land Reform on 15 December 2017…”

 

[12]      It was a condition of the approval by the fifth respondent that a community trust be established for the purposes of the intended development being beneficial to the Mtititi rural village. It was in that vein that the “second applicant” was formed as manned and represented in these proceedings by the third to the twelfth applicants who are its trustees.

 

[13]      In the meantime the first respondent had applied for permission to occupy the same portion of land and paid an amount of R7 000.00 to that effect to the second respondent.

 

[14]      On the strength of that application the first respondent had gone on to establish a bricklaying business on part of the farm in question.

 

[15]      Resultantly both the first applicant and the first respondent claim that their PTO is valid, with the first applicant averring that the first respondent’s PTO is a nullity as it could not have been granted on top of the one which was already existing and the first respondent maintaining that where he currently runs his bricklaying business is his lawful space which falls outside the scope of the first applicant’s PTO which he proposes was just one hectare and not ten.

 

FRAMING THE ISSUE

 

[16]      As already intimated supra somewhere in this judgement the crisp issue for determination really crystallizes into the following questions:

 

16.1 Which PTO is on a balance of probabilities valid, and which is not?

 

16.2 For the common good or the betterment of the Mtititi village and good governance which PTO must be upheld?

 

[17]      If the applicants’ case wins the day, then the prayers sought, including ejectment of the first respondent and his business from the farm should ordinarily be granted. If not, then the application should be dismissed.

 

APPLICABLE LAW AND ITS APPLICATION TO THE FACTS

 

[18]      In Maja v Lepelle-Nkumpi Local Municipality and Others (31436/2009) [2013] ZAGPPHC 420(5 December 2013) (“Maja”) at paras 10 and 11, the traditional route to a valid PTO for purposes of business was outlined as having been as follows:

 

          “…An applicant for a Permission to Occupy a plot for business purposes in the rural area had to lodge a formal application accompanied by a business plan, letter from the tribal authority, proof of title of the seller, site plan, recommendation from the ward councilor of the municipality, an identity document or if the applicant was a company or closed cooperation, the registration documents of such entities.

 

        The respondent had to forward a memorandum recommending approval of the property for occupation and, would only grant a building permit after receiving an approval in principle of a Permission to Occupy, from the Department of Local Government and Housing. A Permission to Occupy would be issued only after the business licence had been granted…”    

 

[19]      Essentially this Maja outline of PTO application procedure sought to interpret clause 47(3)(b) of the reluctantly referenced Bantu Areas Land Regulations Proclamation No R.188 of 1969 which provides as follows:

 

         “…Subject to the provisions of these regulations, every grant of permission to occupy land for-

 

         (b) any other purpose shall be made by the secretary under the authority of the Minister but only after consultation with the tribal or community authority or if one has not been established, the chief or headman if any, having jurisdiction over the area of which such land is situate; and every such permission shall be in the prescribed form and be registered by the Bantu Affairs Commissioner concerned in his allotment register.”

 

[20] As I understand the first respondent’s case from the answering affidavit and submissions made before me, all he has in his arsenal is the fact of his having paid R7 000.00 to the second respondent plus the insulation of the second respondent’s confirmatory affidavit to that effect.

 

[21]      Unlike the first applicant, nowhere is the first respondent alleging any approval of his PTO for bricklaying business purposes by any relevant state entity, be it local municipality, the Department of Co-operative Governance, Human Settlements and Traditional Affairs (COGHSTA) or the Department of Rural Development and Land Reform.

 

[22] The supporting affidavit of the second respondent, even if it was proven to have correctly been authorized by the second respondent, which is not the case, would not in my view cure the fatal shortcoming that , not only was his purported PTO granted atop an already existing PTO of the first applicant, but he simply did not prosecute his application beyond paying R7 000.00 to the second respondent. There clearly is no compliance with the procedure outlined in Maja nor with the repugnantly named regulations by the first respondent at all. It is, in the premises, unnecessary to belabour the point of the defective resolution behind the second respondent’s supporting affidavit because even if the resolution had been without blemish or was somewhat condoned by this court, it would not help improve the first respondent’s fortunes in this matter.

 

[22]   Regard being had to the applicable instruments referred to supra, I do not struggle to find that the applicants’ case is well made before me regard being had to the following considerations:

 

22.1 The first applicant’s application preceded that of the first respondent and should ordinarily be the valid one as it would have been incompetent of the second respondent to “sell” the land to the first respondent after it had been “sold” to the first applicant.

 

22.2 The first applicant, unlike the first respondent, processed its application in terms of applicable prescripts and through relevant fora (the names of the various organs in the approval chain applying mutatis mutandis in the “post-apartheid” environment) until the PTO was approved by the fifth respondent.

 

22.3 The first respondent’s averment that the portion of land allocated to the first applicant was a mere 1 hectare is unsustainable in the light of the approval granted to the first applicant on a portion measuring 10.0448 hectares.

 

22.4 The Mtititi village as represented by the Community Trust stands to benefit abundantly more from the upholding of a registered business run by the first applicant than from a clearly suspect and probably unregistered business run by the first respondent.

 

22.5 The papers before me prove that the first respondent was prepared to vacate the farm and only stopped because he could not be guaranteed relocation costs by any of the parties involved.

 

[23] Section 21(1) (c) of the Superior Courts Act 10 of 2013 empowers this court in its discretion and at the instance of any interested person, to enquire into and determine any existing, future, or contingent right or obligation.

 

[24] As correctly quoted by the respondents in their heads of argument the Supreme Court of Appeal in Cordiant Trading CC v Daimler Chrysler Financial Services [Pty] Ltd [2005] (6) SA 205 (SCA) underscored that section 21(1) (c) of Act 10 of 2013 envisages a two-stage enquiry in the determination of whether a declaratory order is to be granted to wit;

 

24.1 Whether the party seeking declaratory relief has established an interest in an existing, future, or contingent right, and

 

24.2 Whether in its discretion a declaratory order is called for.  

 

[25] I have no hesitation in finding, on the facts of this matter, that the first applicant has established before me an existing right which has been attained through lawful means as evidenced by its application for a PTO which started with the second respondent, went the whole gamut until approved by the fifth respondent. Similarly, I see no reason to not exercise my discretion in favour of granting the applicants the declarator they seek.

 

[26] In all the above premises it cannot be gainsaid that the Applicants have made out a proper case for the prayers sought in the notice of motion and further that the respondents have woefully fallen short of mounting any viable opposition to the application.

 

[27] Resultantly the following order is made:

 

27.1.   It is declared that the piece of land where the first respondent operates a bricklaying business falls within the boundaries of portion 9 of the farm Plange 221-LT.

 

27.2 The Permission to Occupy purportedly issued by the second respondent to the first respondent is declared null and void, unlawful and is set aside.

 

27.3 The first respondent and/or his bricklaying business be and are ejected from portion 9 of the farm Plange 221-LT.

 

27.4 The first respondent is ordered to pay the costs of this application on a party and party scale.

 

  M S MONENE

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO LOCAL DIVISION, THOHOYANDOU

 

 

 

APPEARANCES

Heard on:

09 October 2023

Judgment delivered on:

12/12/2023.

For the First Applicant:

Adv K Mokoena

Instructed by:

G. A Maluleke Attorneys


Tel; 015 812 0661


Fax:086 5729560


Email: gamaluleke@gmail.com

For the First Respondent:

Adv. N Mkhari

Instructed by:

M G Mabunda Attorneys


Tel: 074 199 4071