Mtirara v Landmark Mthatha (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Petse J
• Judgment Date: 07 June 2007
• Docket Number: 607/2007
• Court: Transkei Division
• Hearing Date: 07 June 2007
• Citation: 2007 JDR 0962 (Tk)

Petse J:

[1] On 23 May 2007 I made an order dismissing the applicant's application with costs including the costs consequent upon the employment of two counsel by the third and fifth respondents. The order

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also intimated that my reasons therefor would be furnished later. The following are such reasons.

[2] The applicant instituted these proceedings for interdictory relief on an urgency basis on 9 May 2007 in which she sought an order in the following terms:

"1.

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2.

That a Rule Nisi be hereby issued calling upon the 1st to 3rd respondents and any person acting on their behalf including the drivers of the plant equipment who are doing the excavation work on the premises described in paragraph 2.1 below whose full names and further particulars are unknown to the applicant to show cause, if any, to this Honourable Court on THURSDAY the 24th DAY of MAY 2007 at 10h00 why an order in the following terms should not be made, viz:-

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2.1

That the 1st to 3rd respondents and any person acting on their behalf including the drivers of the plant equipment that is doing the excavation work on the premises in question whose full names and further particulars are unknown to the applicant be interdicted and restrained from developing, in any manner whatsoever, the land situated at ENKULULEKWENI FORMER TRANSKEI GOVERNMENT MINISTERIAL COMPLEX being a portion of the remainder of Erf 912 MTHATHA which land includes, the vacant portion thereof situated underneath the fenced portion of the said complex running from the Holiday Inn right up to the Ultra City Garage, pending final determination of the application for review brought by the applicant before this Honourable Court against various respondents under Case No. 414/07.

2.2

That the 1st to 5th respondents pay costs of this application.

2.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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3.

That this Rule Nisi shall operate as an interim interdict and/or mandamus in terms of paragraphs 2.1 hereof pending final determination of this application."

(Quoted from the applicant's amended notice of motion dated 18 May 2007)

[3] The matter was initially enrolled for hearing on 10 May 2007. However, on this date Mr Dukada who appeared for the MEC For Local Government, Housing And Traditional Affairs, Eastern Cape (the MEC) together with Mr Msiwa informed the Court that the MEC who was at that stage not a party in these proceedings had a direct and substantial interest in the subject- matter of these proceedings and that being the position (so went the argument) the matter could not be heard unless and until the MEC was joined as a necessary party. Mr Tshiki for the applicant was, after initially putting up some tentative resistance, constrained to concede that there was at that stage non-joinder of necessary parties. This concession necessitated an adjournment of the hearing of the matter which was consequently adjourned to 21 May 2007 subject to certain conditions which were incorporated in the order of this Court made on the aforementioned date.

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[4] At the commencement of the hearing of the matter on 21 May 2007 I enquired from counsel representing the respondents what their attitude was in regard to the new matter contained in the applicant's lengthy replying affidavit. All counsel, not surprisingly, responded in a unanimous chorus that they strongly objected to the introduction by the applicant of new matter in reply. It is of course a well settled rule of practice that an applicant must stand or fall by his/her founding affidavit and will not be permitted to introduce new matter in reply except within a narrow ambit. Although there is a tendency lately to permit greater flexibility in this regard the overriding consideration remains that new matter in reply may only be allowed if it will not cause prejudice to the other party. In appropriate circumstances the Court may, however, allow an applicant to introduce a new matter in reply. [See in this regard: Director of Hospital Services v Mistry1979 (1) SA 626 (A); GNH Office Automation CC v Provincial Tender Board [1996] 3 All SA 87 (Tk); Titty's Bar & Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd1974 (4) SA 362 (T); Coffee Tea and Chocolate Co. Ltd v Cape Trading Co 1930 CPD 81, Shephered v Mitchell Cotts Seafreight (SA) (Pty) Ltd1984 (3) SA 202 (T); Union Finance Holdings Ltd v IS Mirk Office Machwe's 11 (Pty) Ltd 2001 (4) SA 842 (T) at 847; Pat Hinde & Sons (Brakpan) (Pty) Ltd v Carrim1976 (4) SA 58 (T);

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Shepard v Tuckers Land and Development Corp (Pty) Ltd (1) 1978 (1) SA 173 (W); Merlvin Gerin (Pty) Ltd v All Current and Drive Centre (Pty) Ltd1994 (1) SA 659 (C); Smith v Kwanonqubela Town Council1999 (4) SA 947 (SCA); Cyberscene Ltd v i-Kiosk Internet and Information (Pty) Ltd2000 (3) SA 806 (C) at 811, Triomf Kunsmis (Edms) Bpk v AE & Cl Bpk en Andere1984 (2) SA 261 (W) at 269 C-E]

[5] Mr Tshiki who appeared for the applicant readily conceded that indeed applicant's replying affidavit contained new matter. He then informed the Court that the applicant disavowed any reliance on the new matter contained in the replying affidavit for purposes of this application. Specifically Mr Tshiki informed the Court that the applicant would not rely on the two confirmatory affidavits filed with her replying affidavit and the land claim documents to which reference is made therein. It need be said that even in the absence of this concession this Court would have been justified and entitled to ignore any matter contained in the replying affidavit that should have been contained in the founding affidavit.

[6] Once the issue pertaining to the new matter contained in the applicant's replying affidavit was disposed of a need arose to deal with the supplementary answering affidavit filed on behalf of the 3rd

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respondent without the leave of this Court. Mr Mbenenge who appeared on behalf of the 3rd respondent made an application from the Bar for the admission of this affidavit on the express understanding that if this Court in the exercise of its discretion permitted this affidavit, the applicant would be afforded the opportunity to file a further replying affidavit in response thereto, if so advised. Mr Mbenenge emphasised in his argument that dictates of justice and fairness required that this further affidavit be permitted in order to have the case adjudicated on its full facts more particularly having regard to the fact that a plausible explanation was given in the said affidavit as to the reasons why it was necessary that this further affidavit should be admitted. Mr Tshiki, for the applicant, having been afforded the opportunity to consider his position, informed the Court that this affidavit could be admitted and that the applicant would not be filing a further replying affidavit in response thereto. The hearing of the matter then proceeded on that basis.

[7] I was further informed, still at the commencement of the hearing, that the 3rd respondent had raised points in limine and that if one of them was upheld such finding would be dispositive of the entire application thus rendering it unnecessary for me to consider the merits thereof. It was then urged upon the Court, for this reason, that I should permit counsel to confine their argument to the points in limine. However, I

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deemed it prudent to hear full argument on the entire application as I considered that it would not only be convenient but also cost-effective to do so.

THE FACTUAL BACKGROUND:

[8] The case made out by the applicant in this application as can be discerned from the founding affidavit may be compendiously summarised as follows:

(1)

That the Minister of Land Affairs ("the Minister") acting by virtue of the powers and authority conferred upon him by the Land Administration Act 2 of 1995 delegated his powers to dispose of State land to the MEC responsible for the Department of Housing and Local Government of the Province of the Eastern Cape or its successors - in office subject to the terms prescribed by the Minister in the Deed of Delegation dated 22 December 1997.

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(2)

One of the properties that the MEC was empowered to deal with was erf 912 Mthatha.

(3)

That during 1999 the MEC donated erf 912 Mthatha to the 3rd respondent and registration of transfer thereof was effected into the 3rd respondent's name on 29 January 1999.

(4)

The donation and transfer of erf 912 Mthatha to the 3rd respondent was not in accordance with the terms and conditions prescribed by the Minister more particularly Clauses 4 and 7 thereof.

(5)

That the Abathembu Community which included an area within her jurisdiction lodged a land claim in respect of erf 912 Mthatha with the Land Claims Commission in December 1998.

(6)

That the applicant addressed letters to the MEC and 3rd respondent urging them to reverse the donation and transfer of erf 912 Mthatha on the ground that, inter alia, it was in violation of the terms prescribed by the Minister in his Deed of Delegation.

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(7)

When her demand was not heeded by the MEC and the 3rd respondent she instituted review proceedings in her representative capacity in this Court under Case No. 414/2007 seeking in the main that the donation by the MEC be reviewed and set aside as also consequential relief.

(8)

That despite the fact that the review proceedings are still pending before this Court the first, second and third respondents have gone ahead to develop erf 912.

(9)

That if the development on erf 912 is not interdicted the Abathembu Community would be...