DR. J.S. Moroka Local Municipality v Ntuli

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: HF Brauckmann AJ
• Judgment Date: 21 July 2021
• Hearing Date: 20 July 2021
• Docket Number: 969/2021

Brauckmann AJ:

INTRODUCTION:

[1]

In this application the Applicant seeks to interdict the Respondents from fraudulently and unlawfully selling and allocating portions of State land, and to have the unoccupied unlawfully erected structures on the property removed and the unoccupied structures demolished.

[2]

The application is opposed by the third, fourth and fifth Respondents only.

AMENDMENT:

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[3]

Prior to the hearing of this matter, I indicated to the Applicant's counsel that the Notice of Motion, and more specifically paragraph 2.1 thereof, does not accord with the papers.

[4]

The Founding Affidavit and the Deeds Office extract indicates the property as being Portion 48 (Remaining Extent) of the Farm Valchsfontein No. 33 J.S., Mpumalanga, in extent 1409.8053 hectares ("the property"). The Applicant applied for an amendment as it was clearly a typographical error and the Respondents will not be prejudiced.

[5]

The application for an amendment is herewith granted and prayer 2.1 of the Notice of Motion is amended to read:

"…. Purporting to be the landowner, alternatively being authorized to, sell or allocate The Remaining Extent of Portion 48 of the Farm Valchsfontein 33 J.S., Mpumalanga ("the invaded land");"

OPPOSITION:

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[6]

The application is opposed by the Third, Fourth and Fifth Respondents only. I will refer to them as ("the respondents"). The First, Second and Sixth Respondents did not file a Notice to Oppose and are not opposing this application.

BACKGROUND:

[7]

The Applicant is a local municipality and the property falls within the Applicant's jurisdiction. Respondents attempted to argue that the property falls within the jurisdictional bound of a different local authority based on the deed search attached to the founding affidavit which indicates that the property is situated within the Marble Hall municipal boundaries. That point was however never raised in the opposing affidavit, and the evidence from the bar is rejected.

[8]

The land was vacant and had no buildings or structures on it whatsoever. The Respondents' unlawful activity and unlawful occupation caused the land to be occupied.

[9]

The Applicant became aware that the Respondents were selling and demarcating stands on the property. These stands were sold and demarcated and allocated to unsuspecting indigent persons.

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[10]

When this became know to the Applicant, it launched this application as an urgent application, but it was removed from the roll as the Applicant's Replying Affidavit could not be commissioned in time due to riots in the area. Thereafter the matter was set down on the normal opposed role and came before me.

[11]

The Respondents raised various points in limine.

LACK OF COMPLIANCE WITH RULE 41 A

[12]

The first point in limine that was raised was the non-compliance with Rule 41A.

[13]

The Rule provides for Form 27 to be filed, in which the party should indicate whether the matter can may be referred for mediation and/or not and provide the reasons for such refusal.

[14]

The Applicant did indeed file such a notice. The point in limine is not well taken. The notice should not be brought to the attention of the Court before an argument as to costs.

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[15]

I am, however, of the view that although the language used in Rule 41A seems to be peremptory in nature ("shall" is used), the failure to file such a notice can never be fatal to the application or action. It is, however, not important and I will not dwell on that topic.

LACK OF URGENCY:

[16]

The point in limine was overtaken by events and I did not have to decide on the point in limine.

LOCUS STANDI:

[17]

The Respondents raised a point that the deponent of the applicant's founding affidavit was not authorized to depose to it

[18]

It is specifically stated that:

"the deponent is not duly authorized to depose to this affidavit in that there is no Resolution from the Municipal Council annexed that appoint and/or authorize Blessing Mafunda Mahlanga to depose this affidavit, therefore this affidavit is flawed and anarchy [sic] hence the deponent lack [sic] locus standi".

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[19]

This was the first leg of the Respondent's objection to Applicant's locus standi that was raised. This point is bad in law as the deponent does not have to be authorized to depose to an affidavit on behalf of a party. It is not the deponent's authority to depose to an affidavit that must be proven, but the party's (the Applicant in casu) resolution to launch such an application. The deponent to an affidavit in motion proceedings need not to be authorized by the party concerned to depose to the affidavit. [1]

[20]

The second leg of the objection to Applicant's locus standi has a bearing to the fact that the property is owned by the Government of South Africa. So much appears from the Deed Search annexed to the Applicant's Founding Affidavit as well as the Applicant's own Founding Affidavit, which contains an allegation to that effect.

[21]

The Respondent's objection is that the Applicant cannot institute this application, as they are not the lawful owners of the land. Mr. Kajee, on behalf of the Applicant, spent a lot of time on this subject after the Court also raised it before he started with his argument.

[22]

I am of the view that this point is not well taken. The Applicant, although not the owner of the property, is a sphere of Government. In terms of

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the Constitution of the Republic of South Africa [2] and more specifically Section 239 thereof, an Organ of State means:

"(a)

Any department of State or administration in the national, provincial or local sphere of government." [Own emphasis]

[23]

In terms of the subordinate legislation and more specifically the Local Government: Municipal Systems Act, 32 of 2000 ("the Systems Act"), an Organ of State means an Organ of State as defined in Section 239 of the Constitution, which then includes the Applicant.

[24]

In terms of Section 4 of the Systems Act, municipal councils has the right to govern on its own initiative the local government affairs of the local municipalities. In terms of Section 6 of the Act a municipality's administration is governed by the democratic values and principles embodied in Section 196(1) of the Constitution.

[25]

Subsection (2) of Section 6 of the Systems Act determines that the administration of a municipality must:

"(a)

be responsive to the needs of the local community;

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(b)

facilitate a culture of public service and accountability amongst staff;

(c)

take measures to prevent corruption."

[Own emphasis]

[26]

A municipality, in terms of the Constitution, has the right to administer local government matters listed in Part B of Schedule 4 and Part B of Schedule 5, and any other matters assigned to it by local or provincial legislation. A municipality may also make and administer its by-laws for the effective administration of the matters which it has the right to administer.

[27]

Another important piece...