Kayamandi Town Committee v Mkhwaso and Others

• Jurisdiction: South Africa
• Judge: Conradie J
• Judgment Date: 20 August 1990
• Citation: 1991 (2) SA 630 (C)
• Hearing Date: 02 August 1990
• Court: Cape Provincial Division

Conradie J:

F The applicant on 15 May 1990 launched an urgent application claiming against nine respondents an order that they vacate and be prohibited from reoccupying certain specified stands under the control of the applicant in the township of Kayamandi, a Black residential area outside Stellenbosch. The applicant is the Town Committee of Kayamandi, a body instituted in terms of s 21(a) of the Black Local Authorities Act 102 of 1982.

G The applicant alleged that the nine respondents, and others whose names it has not been able to establish, a group altogether of some 150 strong, on or about 20 March 1990 began erecting squatter shacks on land which had been earmarked by the applicant for residential development. Development of the land cannot proceed while the squatters are in H occupation of it. Applicants for houses to be erected on the land are becoming frustrated at the delay in development and the applicant fears that an explosive situation may soon arise if the trespassing squatters are not removed. Hence, it is alleged, the urgency of the application.

The Sheriff managed to effect service only on first and sixth respondents. They, represented by Mr Krige, appeared to oppose the I application. In respect of the other respondents and the squatters who were not cited as respondents, the applicant alleged that it was not reasonably practicable to effect service on them. It therefore asked for and obtained an order that a rule nisi issue in the following terms:

'4.

Dat 'n bevel nisi uitgereik word wat nie van toepassing is op eerste en sesde respondente nie ingevolge waarvan enige persone J wat die

Conradie J

A applikante se persele soos vermeld in aanhangsel "A" hiertoe okkupeer sonder die toestemming van die applikant op Donderdag 2 Augustus 1990 in die Vierde Afdeling van hierdie agbare Hof redes aanvoer waarom 'n bevel met die volgende bepalings nie uitgereik behoort te word nie, naamlik dat:

(a)

Enige persoon/persone wat die applikant se persele vermeld in B aanhangsel "A" hiertoe okkupeer sonder die toestemming van die applikant beveel word om sodanige persele te ontruim en verbied word om voormelde persele te betree sonder die toestemming van die applikant.

(b)

Die persoon/persone vermeld in subpara (a) hierbo gelas word C om die koste van hierdie aansoek te betaal.

5.

Dat betekening van afskrifte van hierdie bevel sowel as die kennisgewing van mosie en aanhangsels daartoe in hierdie aangeleentheid geskied op die persone vermeld in para 4 hierbo deur afskrifte van voormelde dokumente te laat by elke woonstruktuur op D die persele vermeld in aanhangsel A hiertoe.'

Annexure A reflects the numbers of stands which the applicant alleges are being unlawfully occupied.

Service was effected by the Sheriff affixing to each of 100 stands a copy of the notice of motion and of the order of Court authorising service in this fashion. He also affixed copies to other stands adjacent E to some of the occupied stands so that in all more than 100 copies of the Court papers embellished those parts of the township occupied by squatters on 4 June 1990.

With all that paper around the occupied portions of the township and the stir which this must have created in a community desperately aware of the fragility of its position, I have no reason to believe that the F rule nisi did not come to the notice of the second, third, fourth, fifth, seventh, eighth and ninth respondents. They have not appeared to oppose and, unless any point raised by the first and sixth respondents is good and happens to enure for their benefit as well, an ejectment order would have to be granted against them.

G Mr Louw, who appeared for the applicant, properly and readily conceded that he found a difficulty in the formulation of the substituted service order. Apart from the respondents, the order invites to the judicial joust persons occupying the stands 'without the applicant's permission'. Since permission for the squatters to occupy the stands is one of the H defences raised by the first and the sixth respondents, this way of inviting contestants to come forward is obviously flawed. Mr Louw suggested that I should, in view of this difficulty, re-issue the order in an amended form, giving the same directions as to service which had been given before. I am not disposed to accede to this request.

In an urgent application an applicant can, and usually does, in I accordance with the provisions of Rule 6(12) of the Uniform Rules of Court, apply for the Rules regarding the 'usual forms and service' to be dispensed with. The applicant asked only for its non-compliance with the Rules regarding service to be condoned. It did not, either in the earlier application for substituted service or in the hearing before me, ask for the operation of any other Rules to be dispensed with and has J not made out a

Conradie J

A case for dispensing with them. I think that the request to re-issue the rule nisi should be refused on this ground alone, but since this seems an unsatisfactorily narrow way of disposing of the application against the unidentified occupiers, the faceless respondents, I think that I should say that in my view the order sought is fundamentally objectionable.

One of the tests, of which there are several, for determining whether B a particular act is to be classed as a judicial act is whether there is a lis inter partes (Wiechers Administrative Law at 96).

In De Smith's Judicial Review of Administrative Action 4th ed at 83, the author calls this 'perhaps the most obvious characteristic of ordinary Courts'. It is, as remarked in Saskatchewan Labour Relations C Board v John East Ironworks Ltd[1949] AC 134 at 149:

'... a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the Court to decide the issue between those parties.' D

These dicta proclaim that there must be parties to a lawsuit. They do not say how persons may be made parties. The Uniform Rules of Court provide how this is to...