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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO.: M489/2021

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:

 

THE AFFECTED COMMUNITY MEMBERS OF BODIBE TAU RAPULANA	APPLICANT
And
LAFARGE CEMENTS	FIRST RESPONDENT
LAFARGE MINING SOUTH AFRICA (PTY) LTD	SECOND RESPONDENT
LAFARGE INDUSTRIES SOUTH AFRICA REG NO: 2005/03309/07	THIRD RESPONDENT
ACTING KGOSI VICTOR RAPULANA	FOURTH RESPONDENT
TAU RAPULANA TRIBAL AUTHORITY	FIFTH RESPONDENT
MINISTER OF ENVIROMENTAL AFFAIRS	SIXTH RESPONDENT

OPPOSED MOTION

 

CORAM: MASIKE AJ        

ORDER

 

(i)           The application is dismissed;

 

(ii)          The applicant is to pay the costs of the first, second and third respondent on a party and party scale, scale “B”

JUDGMENT

 

MASIKE AJ

 

INTRODUCTION

  

[1]        This is an opposed application wherein the applicant, an entity describing itself as The Affected Community Members of Bodibe Tau Rapulana Tribe, organized members of Bodibe Village, which challenges socio – economic matters on behalf of the community and other issues that are affecting Bodibe community, and promote the constitutional rights of the community members within Bodibe village, through negotiations with stakeholder, in alternative through court process, instituted motion proceedings against the first to the sixth respondent.

 

THE RESPONDENTS

 

[2]        The first, second and third respondent are described as LA FARGE (PTY) LTD and its subsidiary companies with limited liability, formed and registered in terms of Company Laws of the Republic of South Africa, with its registered business address situated at Industrial Sites, 1 Manana Road Lichtenburg, North West.

 

[3]        The fourth respondent is Acting Kgosi Victor Rapulana Matlaba, described by the applicant as purportedly appointed in terms of 16 of the North West Traditional Leadership and Governance Act 2 of 2005 as amended.

 

[4]        The fifth respondent is TAU RAPULANA TRIBAL COUNCIL, a traditional Council formed in terms of section 3 of the North West Traditional Leadership and Governance Act 2 of 2005 as amended.

 

[5]        The sixth respondent is the MINISTER OF ENVIROMENTAL AFFAIRS of environment house, 473 Steve Biko and Soutpansbrg Road, Arcadia, Pretoria and whose address for the purpose of service of process in these proceedings is that of the State Attorney (Mahikeng) First Floor, East Gallery Mega City Shopping Complex Sekame Road Mmabatho.                   

 

[6]        The relief sought against the first to the third respondent is in the following terms:

 

“1.1     It is declared that the First Respondent’s blasting for the purpose of its mining of cements, affects the Applicants’ houses in that they are cracking and likely to collapse. Consequently, the conduct is in conflict with section 10 (human dignity) and section 26 (right to housing) of the Constitution of South Africa.

 

1.2       It is declared that the houses to which the affected people of Bodibe have been relocated to (as a result of mining operation of the First to Third Respondent) are deficient, substandard and in conflict with Section 10 of the Constitution of South Africa.

 

1.3       It is declared that the pollution caused by the First Respondent, as a result of its mining operation, affects the well – being and health of the Applicants live stock and Bodibe community.

 

1.4       It is declared that the mining of the cement has contaminated the land of Bodibe Community, and has consequently affected the grazing land of Bodibe community. The pollution of the land caused by the First Respondent, as a result of its mining operation has harmed and continues to cause harm to the Applicants livestock and the Bodibe community.

 

1.5       It is declared that the First Respondents’ fencing around the tribal grazing land, infringes the Applicant’s rights to graze their livestock in the tribal land.

 

1.6       Ordering the First Respondent to remove the razor wire and electric fence around the railway, in order to prevent any further injuries and losses of the Applicants livestock.

 

1.7       Directing that in addition to the R 35 000,00 that was given to each hoursehold as a settlement, that the First, Second and Third Respondents pay an amount of R 700 000.00 to each household which is a reasonable full and final settlement amount for damages already suffered.

 

1.8       Directing the First, Second and Third Respondents to develop and implement local economic empowerment and learnership programmes in the community during the tenure of the mining operations.”

 

[7]        The relief sought against of Acting Kgosi Victor Rapulana and Tau Rapulana Triba Authority, the following:

 

“2.1     It is declared that the Fourth Respondent’s failure to account to the community about the royalties and / or any benefits received on behalf of Bodibe Tribal Community is unlawful and in conflict with the principle of good governance, transparency and the rule of law.

 

2.2       That the Fourth Respondent be directed to convene a community meeting for the purpose of accounting to the community about the royalties and/or any benefits received on behalf of Bodibe Tribal Community during his tenure as Acting Kgosi.”              

 

[8]        The first, second and third respondents have opposed the application. On consideration of the papers before this Court, I could not find a return of service of the notice of motion on the fourth and sixth respondent. What I found at page 95 and 96 of the indexed and paginated court bundle was a return of service on Victor Rapulana on 10 September 2021, who accepted service on behalf Tau Rapulana Tribal Authority, the fifth respondent in this matter.

 

[9]        The closest I came to a return of service on the fourth respondent, was a return of service of a notice of set down at page 248 of the indexed and paginated bundle. From the reading of the return of service at page 248 of the indexed and paginated bundle, it does not appear that the fourth respondent was served with the notice of motion in this matter. I am not satisfied with the service on the fourth respondent. I am of the view that the fourth respondent was not served with the notice of motion and for that reason the fourth respondent is not before the Court. Unsurprisingly, the fourth respondent has not opposed this application.

 

[10]      The fifth respondent has also not opposed this application, and the sixth respondent has filed a notice to abide. 

 

THE POINTS IN LIMINE BY THE FIRST, SECOND AND THIRD RESPONDENT   

 

[11]      The first, second and third respondents have filed a number of points in limine. These read as follows:

 

(i)            The absence of locus standi in judicio;

 

(ii)          The institution of this application has not been authorised;

 

(iii)         Lis alibi pendens;

 

(iv)         The affidavit of the deponent in support of the application of the applicant, lacks the necessary averments to sustain a cause of action, primary or by way of inference.

              

[12]      In my view, a finding that the applicant lacks the necessary locus standi to institute this application, would be dispositive of the entire matter. To this end the first, second and third respondent contend that the applicant does not have the right to bring this application to court. From the reading of the applicants’ founding affidavit as deposed to by Molopane Andries Sebokolodi (Mr. Sebokolodi), it provides as follows when dealing with the locus standi of the applicant:

 

            “STANDING

 

16.       The Applicants have the necessary standing to bring this application in terms of section 38(d) of the Constitution of the Republic of South Africa and NEMA, which is the framework environmental legislation enacted to give effect to the environmental right in terms of section 24 of the Constitution.

 

17.       As appears from the citation of the Applicants above, they are members of Bodibe village, concerned with the protection of the environment and sustainability in the public interest of the village.

 

18.       There is no other reasonable and effective manner in which the challenge can be brought other than seeking relief from court.

 

19.      The relief sought will benefit marginalized people of Bodibe and their future generation. The affected beneficiaries may not be afforded the opportunity to negotiate the equity of the La Farge Cement.

 

20.       The following rights are currently being effected:

 

            20.1    Equality;

 

            20.2    Human dignity; and

 

20.3    Right to environment that is not harmful to their health or well being.”

 

THE LAW

 

[13]      Locus standi is described in LAWSA (The Law of South Africa) LexisNexis JA Faris et al Durban 2022 as follows:

 

            “He who has a right to sue in an action is said to have locus standi in such action, and vice versa. “Everyone has a right to be heard in his own cause, and no one, save qualified practitioner, has a right to be heard in the cause of another” (per SEARLE, JP in Rescue Committee, DRC v Mathenze 1926 CPD). The test is, “has the person appearing a direct personal interest in the suit”. In that case, it may be considered as ‘his cause’” (ibid).” 

 

[14]      Locus standi in iudicio is an access mechanism controlled by the court itself. (See: Watt v Sea Plant Products Bpk [1998] 4 All SA 109 (C) at 113H. Generally, the requirements for locus standi are these: the plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one. (See: Four Wheel Drive CC v Leshni Rattan NO [2018] ZASCA 124 paragraph 7. Standing is thus not just a question of substance, concerning as it does the sufficiency of a litigant’s interest in the proceedings. (See: Wessels en Andere v Sinodale Kerkkantoor Kommissie van die Nederduitse Gereformeede Kerk, OVS 1978 (3) SA 716 (A) at 725H; Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 11 (A) at 388B – E. The sufficiency of the interest depends on the particular facts in any given situation. (See: Jacobs en ‘n Ander v Waks en Andere [1991] ZASCA 152; 1992(1) SA 521 (A) at 534D); Gross and Others v Pentz [1996] ZASCA 78; 1996 (4) SA 617 (A) 632 B-D. The real enquiry being whether the events constitute a wrong as against the litigant. (See: Muller v De Wet NO & Others 2001 (2) SA 489 (W), Firm – O – Seal CC v Prinsloo & Van Eeden Inc and Another (483/22) [2023] ZASCA 107; 2024 (6) SA 52 (SCA) (27 June 2023) at paragraph 6.

 

[15]      In Ferreira v Levin NO and others ; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC) at paragraph 167, Chaskalson P found that Section 7(4) of the interim Constitution of the Republic of South Africa, Act 200 of 1993 demonstrates a broad and not narrow approach to standing.

 

[16]      In Ferreira supra at paragraph 234, O’Regan J said the following:

 

            “This court will be circumspect in affording applicants standing by way of section 7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting in the public interest.  Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as: whether there is another reasonable and effective manner in which the challenge can be brought;  the nature of the relief sought, and the extent to which it is of general and prospective application; and the range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity  that those persons or groups have had to present evidence and argument to the court. These factors will need to be considered in the light of the facts and circumstances of each case.”  

 

[17]      What stands out in our legal landscape is that as a general rule it is for the party instituting proceedings to allege and prove locus standi. It follows that the onus would rest on that party to establish same. Moreover, it must be apparent ex facie the founding papers that the parties have the requisite locus standi.  (See: Kommissaris van Binnelandselnkomste v Van der Heever [1999] 3 All SA 115(A), 1999 (3) SA 1051 (SCA) paragraph 10; Four Wheel Drive CC v Leshni Rattan NO supra at paragraph 7).    

 

[18]      The first, second and third respondent have taken the point that the applicant purports to be organised members of the Community who act on behalf of the Community. The founding affidavit of the applicant has been deposed to by Mr. Malopane Andries Sebokolodi (Mr. Sebokolodi). Section 38(a) of the Constitution of the Republic of South Africa, does not vest the applicant with locus standi because the applicant, on its own version if purportedly acting on behalf of the Community.

 

[19]      The first, second and third respondent have further highlighted that Section 38(b) does not vest the applicant with locus standi because the Community is not unable to act on its own. The Community members of Bodibe Village are represented by a duly elected, constituted and gazetted tribal council. The Community is accordingly capable of acting in its own name.

 

[20]      Section 38(c) does not vest the applicant with locus standi because a class action or collective redress action has not been certified. Section 38(d) does not vest the applicant with locus standi because the applicant is not acting in the public interest but only in its own interests.

 

[21]      The tribal council, the fifth respondent is not precluded from bringing the application on behalf of the Community as opposed to a small faction in the Community.

 

[22]      The first, second and third respondent contend that the fifth respondent does not support the application and has not authorised the prosecution of the application.

 

[23]      The applicant in reply, states that the current tribal council does not represent the interest of the community (including its members). The applicant further states that the term of office of the tribal council expired on 20 May 2017 and when the founding affidavit was deposed to, the term of office of the tribal council had lapsed. The applicant further avers that the Tribal Council is failing to protect the interests of the affected members of the community.

 

[24]      Mr. Sebokolodi makes the averment at paragraph 5 of the founding affidavit in support of the application of the applicant that he is duly authorised “to bring this application and depose hereto, attached is a resolution marked annexure “MAS 1””.

 

[25]      The first, second and third respondent have taken issue in their answering affidavit indicating no resolution was attached to the founding papers of the applicant. The applicants in their replying affidavit when addressing this averment state as follows: “The Applicant notes the contents of those paragraphs and stands by the averments in the founding affidavit.” 

 

ANALYSIS

 

[26]      From the reading of the description of the applicant in the founding affidavit deposed to by Mr. Sebokolodi, there can be no doubt that the applicant is an association.

 

[27]      An association is described as “A body of people organised for a common purpose; a society”.

 

[28]     A distinction must be drawn between, on the one hand, corporate associations which are by virtue of legislation (statutory associations) or under the common law (universitas personarum) legal entities distinct from their members, and what are referred to as unincorporated associations, on the other. For present purposes it is only necessary to deal with a universitas and an unincorporated association. The distinction between these two entities has been explained as follows in Webb & Co Ltd v Northern Rifles; Hobson & Sons v Northern Rifles: 

 

“An universitas personarum in Roman-Dutch law is a legal fiction, an aggregation of individuals forming a persona or entity, having the capacity of acquiring rights and incurring obligations to a great extent as a human being. An universitas is distinguished from a mere association of individuals by the fact that it is an entity distinct from the individuals forming it, that its capacity to acquire rights or incur obligations is distinct from that of its members, which are acquired or incurred for the body as a whole, and not for the individual members.”

     

            (See: Ex -TRTC United Workers Front and Others v Premier, Eastern Cape Province – 2010 (2) SA 114 (ECB) at paragraph 11).

 

[29]      An unincorporated association refers to an association which does not have legal persona separate from its members. An unincorporated association is nothing more than a group of individuals who are bound to one another by contract and who act jointly in pursuit of a common purpose. It has no existence on its own. It has no locus standi to sue and be sued in its name. In legal proceedings against or by an unincorporated association, every member must as a result be cited as a plaintiff or defendant or applicant or respondent as the case may be.

 

            (See: Ex -TRTC United Workers Front and Others supra at paragraph 13)

 

[30]      From the reading of the description of the applicant as it relates to its nature, object and activities, I am satisfied that the object of the applicant is to represent its members with regard to their socio – economic rights in particular as it relate to the mining activities of the first, second and third respondent in Bodibe Village.

 

[31]      From the reading of the notice of motion and the description of the applicant, the applicant was formed for a limited purpose and once the purpose is achieved, there would be no further need for it and it would cease to exist. The applicant is accordingly lacking the features of a universitas.  

 

[32]      On addressing the question of standing in terms of Section 38(d) of the Constitution of the Republic of South Africa. The Supreme Court of Appeal held in Muldersdrift Sustainable Development Forum v Council of Mogale City (20424/2014) [2015] ZSCA at paragraph 22 said the following:

 

            “In broad terms there are two types of locus standi that derives from S 38: ‘own interest’ and ‘public interest’, the latter of which are brought by way of what is generally known as ‘class applications’.”  

 

[33]     A class action is a action instituted by a representative on behalf of a class of persons in respect of whom the relief claimed and the issues involved are substantially similar in respect of all members of the class and which action is certified as a Class Action. (See: Katherine Myrtle Roberston “An analysis of the Class Action in South Africa” University of Pretoria (2015) 4.)

 

[34]      Certification is the most crucial requirement of a Class Action because it involves: “the definition of the Class; identification of some common claim or issues that can be determined by way of Class Action; some evidence of the existence of a valid cause of action; the court being satisfied that a Class Action is the most appropriate procedure to adopt for the adjudication of the underlying claims. (See: Trustees for the Time Being for the Children’s Resource Trust Centre and Others v Pioneer Foods 2013 (2) 213 (SCA) at paragraph 9 and 23).

 

[35]      The applicant has not brought an application certifying the action as a class.

 

[36]      In addition to the issue of locus standi, there are other challenges facing the application of the applicant. The deponent in the affidavit in support of the application of the applicant has failed to state which of the houses of the members of the applicant are cracking and likely to collapse as a result of the blasting by the first respondent. The deponent has failed to identify the people of Bodibe village who have been relocated as a result of mining operations of the first to the third respondent.

 

[37]      The deponent to the affidavit in support of the application of the applicant has failed to state which members of the applicant have been adversely affected by fencing around tribal grazing land or attached the confirmatory affidavits of those persons.

 

[38]      The deponent to the affidavit of the applicant has not identified which households in addition to the R 35 000-00 that was given to each of said households as a settlement are to be paid the amount of R 700 000-00, how the figure was arrived at as a settlement amount for damages and there are no confirmatory affidavits of the persons who are to be paid this amount confirming the averments of the deponent to the affidavit of the applicant. The sought relief of payment in the amount of R700 000-00 is further incapable of being decided in motion proceedings, it would require oral evidence to be led for the determination of the alleged damages already suffered. 

 

[39]      I am of the view that the applicant has failed to show that it has the necessary locus standi to bring this application in terms of the common law or in terms of section 38(d) of the Constitution of the Republic of South Africa in that the applicant has no existence on its own. It has no locus standi to sue and be sued in its name.

 

[40]      Although the fourth and fifth respondent did not play a part in these proceedings, the finding of lack of locus standi applies equally to the relief that is sought against the fourth respondent. In addition to what I have stated herein above that it does not appear that the fourth respondent was served with the notice of motion in this matter. The deponent to the affidavit in support of the application of the applicant, failed to make out any averments in support of the relief sought against the fourth respondent.

 

[41]      What then remains is the issue of costs.

 

COSTS

 

[42]      The general rule is the successful party is entitled to his or her costs and in this matter, I have not found any reason to deviate from the general rule.

 

[43]      Resultantly, the following order is made: -

 

ORDER:

 

(i)            The application is dismissed;

 

(ii)          The applicant is ordered to pay the costs of the first, second and third respondent on a party and party scale, scale “B”.

 

 

T MASIKE

ACTING JUDGE OF THE HIGH COURT SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

 

DATE FOR HEARING                    :           22 NOVEMBER 2024,

DATE OF JUDGMENT                  :           13 MARCH 2025

 

FOR APPLICANT                            :          ADV G.K SELEKA  

INSTRUCTED BY                 :                  MOTLHABANI ATTORNEYS  

        88 MOLOPO ROAD GOLFVIEW

MAHIKENG  

Email Address                                :           gofaonakabo@gmail.com

                                                           

FOR FIRST, SECOND

AND THIRD RESPONDENT        :           ADV LK SIYO   

INSTRUCTED BY                           :           MTHEMBU ATTORNEYS

                                                                        C/O KGOMO ATTORNEYS

                                                                        56 SHIPPARD STREET

                                                                        MAHIKENG 

Email Address                                :           Thokozani@mmlegal.co.za

                                                                        lunga@siyo.co.za  

 

 

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