Astra Boerdery CC and another v Acting Station Commander Ganyesa and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Reddy AJ
• Judgment Date: 12 September 2023
• Citation: 2023 JDR 3451 (NWM)
• Hearing Date: 20 March 2022
• Docket Number: UM100/22
• Court: North West Division, Mahikeng

Reddy AJ:

Introduction

[1]

The applicants approached this Court on an urgent basis calling on the respondents to show reason why they should not be committed to prison for a period of 30 days for being in contempt of the terms of the Court Orders made by this Honourable Court on 27 May 2022,

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3 November 2022, and 1 December 2022 under the above stated case number alternatively that such imprisonment be suspended on condition that the respondents commit to adhering to the court orders, jointly and severally tender the costs of the application on an attorney client scale for the costs occasioned in bringing this application because of their wilful and mala fide conduct.

The Parties

[2]

The first applicant Astra Boerdery CC (“Astra Boerdery”), for purposes relevant to this application, conducts farming activities on a farm described as Harfield (“Harfield Farm”). Mr Alwyn Smit (“Smit”) the second applicant is responsible for overseeing all farming activities at Harfield Farm on behalf of Astra Boerdery.

[3]

The first respondent is the Acting Station Commander Ganyesa South African Police Service, a position previously occupied by one Captain Phiri and presently occupied by one Captain Mokgethi. In this judgment any reference to the first respondent must be construed as being to Captain Phiri. Captain Phiri was cited in the main application brought on 27 May 2022, as the eighth respondent.

[4]

The second respondent is the Cluster Commander and District Commissioner for the Dr RS Mompati District, Brigadier TE Tlotleng, who in his official capacity, exercises control over the South African Police Service, in this cluster. In this judgment any reference to the

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second respondent must be construed as being to Brigadier Tlotleng. Brigadier Tlotleng was cited in the main application as the ninth respondent.

[5]

The third respondent is the Provincial Commissioner of the Police, North West Province (“the Provincial Commissioner of the Police, North West Province”) who was cited in the main application as the tenth respondent.

Litigation history

[6]

On 27 May 2022, a rule nisi was issued in the main application by Mahlangu AJ, in terms of which Mr Neo Legalamitlwa (the first respondent in the main application - Legalamitilwa), certain other identified respondents, and any other person associating themselves with the unlawful conduct of the main protagonists, were interdicted on an interim basis from engaging in certain identified conduct. Captain Phiri, Brigadier Tlotleng and the Provincial Police Commissioner were ordered to assist the Sheriff to give effect to the order. The order reads as follows:

“. . .

2.

A rule nisi be issued, returnable on 23 JUNE 2022 at 10h00 or soon thereafter as the matter can be heard, calling upon the Respondents to furnish reasons, if any, why the following order should not be made:

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2.1

That the First to Seventh Respondents are ordered not to enter, or invade the following farms to with:

2.1.1

PORTION NUMBER 1 FARM GOODWOOD 401 (also known as “HARFIELD”).

2.1.2

PORTIONS 0,1. (KLIPDRAAI), 5 (FAIRVIEW), 6 OF THE FARM STONEHENGE 400.

2.1.3

PORTIONS 0,6,9 OF THE FARM VAALBOSCHSPRUIT 245.

2.1.4

PORTIONS 2, 4,5,9 OF THE FARM PROSPECT located within the DR. RUTH S MOMPATI DISTRICT MUNICIPALITY (hereinafter referred to as “THE FARMS”).

2.2

That the First to Seventh Respondent are interdicted to graze any livestock on The Farms, or to in any other fashion interfere with the Applicants’ rights in respect of the properties.

2.3

In the event that any of the First to Seventh Respondents unlawfully invaded the aforesaid farms with cattle, the Sheriff is authorised to remove such cattle from The Farms and impound same at the nearest cattle pound.

2.4

That the First to Seventh Respondents are interdicted not to cause any damage to the farms including, but not limited to, cutting and/ or removing fences surrounding the aforesaid farms, or to install gates to the fences surrounding the Farms.

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2.5

That the First to Seventh Respondents are ordered not to insult, threaten or assault the Second Applicant, his family or employees in any fashion.

2.6

That the Eight to Tenth Respondents are ordered to assist the Sheriff in the execution of his/her duties, and to maintain law and order, should the First to Seventh Respondents not strictly comply to this order.

3.

Prayer 2 be of interim force pending the return date.

4.

The interim order be served in the following fashion:

4.1

As far as possible on the Respondents per the rules pertaining to service.

4.2

By attaching the order to a notice board on the affected farms.” (my emphasis)

[7]

It is common cause that service of the order of 27 May 2022 was effected on the present respondents by the Sheriff of the High Court.

[8]

On 3 November 2022, Petersen J, confirmed the rule nisi granted on 27 May 2022, which now had final effect.

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Background facts

[9]

On 4 October 2022 certain incidents occurred which prompted Smit to report same to the SAPS Ganyesa that morning. Later that morning, a report was made to Captain Phiri about the presence of multiple individuals outside the boundary fence of Harfield Farm. At 07h54 am two employees of Fastrak Security, Samuel Wilhelm Kieser (“Kieser) and Jacobus Johannes Cloete (“Cloete”) met Smit at the farm Stonehenge and proceeded to Harfield Farm. On arrival at Harfield Farm, they observed that there were several individuals and vehicles adjacent to the boundary fence of Harfield Farm. Kieser duly alerted the Ganyesa SAPS.

[10]

Eleven individuals made their way onto Harfield Farm with two motor vehicles. Kieser and Cloete approached the said individuals and identified a number of the respondents cited in the main application as being among the individuals, which included Legalamitlwa.

[11]

Legalamitlwa refused to leave Harfield Farm, notwithstanding Kieser bringing to the attention of the individuals, the conditions of the Court Order of 27 May 2022. Legalamitlwa insisted that Smit addresses or speaks to him personally. One of the individuals identified as Samuel Mathe produced a knife and pointed it at Kieser, intimating that the knife was intended for Smit. As this unfolded, employees at Harfield Farm attended to the removal of cattle, to avert potential damages. The employees were threatened

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with harm if they persisted in removing the cattle. As a result, Smit telephoned Captain Phiri to request urgent intervention by SAPS.

[12]

After a passage of time, two police officers, Warrant Officer Sehoro (“Sehoro”) and Sergeant Mothopohotsie (“Mothopohotsie”) arrived at Stonehenge wanting to obtain a statement from Smit to register a case docket. Sehoro instead was confronted about the failure to arrest the suspects and retorted that the absence of adequate manpower circumvented same. Sehoro remained adamant that a statement had to be obtained from Smit before any arrests could be effected. Smit as a result decided to mandate the services of Bushveld Security to assist, if the situation escalated, which could be detrimental to life and property. Smit ultimately provided a statement to Sehoro.

[13]

Despite further engagements between one Arthur Batchelor Koorts (“Koorts”), Sehoro and Brigadier Tlotleng, the impasse was not resolved. Brigadier Tlotleng questioned what he perceived to be conflicting accounts by Kieser and Smit regarding the location of the suspects. No arrests were therefore made. The SAPS nonetheless attended to the matter.

[14]

Brigadier Tlotleng received a report that the suspects were actively trespassing on Harfield Farm in contravention of the rule nisi. Koorts reported to Brigadier Tlotleng that Bushveld Security Group arrived at Stonehenge equipped to effect civil arrests of the suspects, if SAPS were not able to do so because of an alleged shortage of

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manpower. The contention that civil arrests would be effected was discouraged and Koorts was informed that Captain Phiri, accompanied by Public Order Police Officers were en route to intervene and effect the necessary arrests.

[15]

Legalamitlwa identified as the leader of the group was informed by Willem Schalk van Der Merwe of Bushveld Security Group (“Schalk”), an employee of the first applicant that he was trespassing on private property and that he was therefore in breach of the Court Order of 27 May 2022. A copy of the order was handed to Legalamitlwa, with a request that they vacate Harfield Farm immediately. Legalamitlwa acknowledged that he had knowledge of the court order which was interim in nature and that the next appearance was 23 April 2023.

[16]

When Captain Phiri arrived with the Public Order Police Officers, he intervened and an exchange of words occurred between himself and Legalamitlwa, with the group in close proximity. Following this intervention, Captain Phiri decided that no arrests would be effected. As to why no arrests would be effected he explained that Legalamitlwa and Smit provided conflicting versions; that he was in the process of obtaining documents to provide to the suspects and that he should be afforded an opportunity to “adjudicate” the matter. Given the stance of Captain Phiri, Koorts unsuccessfully attempted to contact Brigadier Tlotleng to escalate the matter to him.

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[17]

As a result of the failed attempt to involve Brigadier Tlotleng, Koorts once again made contact with Captain Phiri who maintained his stance and expounded on the reasons for not effecting any arrests. He explained again that based on the conflicting versions provided to him, he would liase with the prosecutor of Ganyesa; and with Land...