Sherpa Trade & Invest 39 (Pty) Ltd v Nkukhwana

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MJ Lowe J
• Judgment Date: 09 September 2021
• Docket Number: 834/2021
• Hearing Date: 26 August 2021
• Court: East London Circuit Local Division
• Citation: 2021 JDR 2351 (ECGEL)

Lowe J:

INTRODUCTION:

[1]

On 1 July 2021 an urgent application was launched in this matter and by way of a Judge's directive was enrolled to be heard on Tuesday, 6 July 2021.

[2]

It seems, however, that in fact Respondents were given until 9 July 2021 to oppose, failing which the matter would proceed on 13 July 2021.

[3]

Further, Fourth, Sixth, Eighth to Twentieth Respondents opposed by giving notice of intention to do so.

[4]

At the hearing before me Ms Nxazonke-Mashiya appeared for Fourth, Sixth, Eighth to Seventeenth, Nineteenth and Twentieth Respondents.

[5]

The remaining Respondents gave no instruction to oppose.

2021 JDR 2351 p3

Lowe J

[6]

On 13 July 2021 the matter was heard on the unopposed roll, terms and time lines being agreed for filing of papers and an order issued accordingly, the matter postponed to the opposed roll on 29 July 2021, costs in the cause.

[7]

On 27 July 2021 a rule nisi issued returnable on 26 August 2021 as follows, costs reserved:

"IT IS ORDERED THAT:

1.

The applicant's non-compliance with the normal procedures, form and time frames for instituting this application in terms of Rule 6 of the Rules of this Honourable Court be condoned and the applicant be granted leave to bring this application as a matter of urgency in terms of Rule 6(12)(a);

2.

A rule nisi do issue calling upon the First to Twentieth Respondents to show cause, if any, why a final order in the following terms should not be made:

2.1

That the First to Twentieth respondents immediately restore peaceful and undisturbed possession and control of Erf 2368 East London, Bengal Road ('the premises') to the applicant, it employees and its agents; with such possession and control to include unfettered access to the premises.

2.2

That the first to twentieth respondents be interdicted and restrained from:

2.2.1

Interfering in any way whatsoever with the activities, and/or the administration and/or business of the applicant at the premises;

2.2.2

Intimidating and/or threatening and/or harassing and/or causing violence and/or threatening to cause violence to any worker and/or employee and/or official and/or supplier and/or agent

2021 JDR 2351 p4

Lowe J

and/or sub-contractor and/or employee of any supplier and/or sub-contractor of the applicant;

2.2.3

Causing any damages and/or threatening to case any damage to any property of the applicant, any property or possession of any worker and/or employee and/or official and/or supplier and/or sub-contractor and/or employee of any supplier and/or sub-contractor of the applicant;

2.2.4

Encouraging violence against any employee and/or official and/or supplier and/or sub-contractor and/or employee of any supplier and/or sub-contractor of the applicant at the premises;

2.2.5

Blocking and/or preventing any vehicle and/or truck and/or plant of the applicant and/or any agent of the applicant and/or any sub-contractor of the applicant from travelling on any road in the premises or entering into the premises;

2.2.6

Being unlawfully on any of the sites on the premises which are owned and/or occupied by the applicant and/or its sub-contractors; and

2.2.7

Disruption or in any way being a disruptive presence at or near the premises of the applicant and/or site occupied by the applicant and/or any road giving access to the premises and within the premise.

3.

Applicant is directed to serve this order on the rest of the respondents who are not before court today;

4.

The issue of costs is referred for determination on the return date the 26th August 2021."

[8]

It seems that there was service of a kind on all Respondents but in respect of Third, Seventh and Eighteenth Respondents by affixing, not personal service.

2021 JDR 2351 p5

Lowe J

[9]

Before me in fact the main issue was one of costs, Respondents denying however that the rule was justified or that it should be confirmed, but suggesting that as they had not been implicated in the matter complained of they should certainly not be mulcted in costs.

[10]

At the end of the day, however, the matter having stood down, no agreement could be reached. Respondents, as represented, seeking discharge of the rule with costs. Applicant sought confirmation of the rule with costs including those reserved.

THE BACKGROUND:

[11]

It is common cause that Applicant is the registered owner of Erf 2368, Bengal Road, East London (Bengal Road), a registered "Township Scheme" of 150 sites. Whilst Respondents are (amongst others) purchasers of erven together with dwellings constructed thereon, Respondents having grievances relating to the erven and dwellings.

[12]

Meetings have been held between some of the parties and Applicant relevant to above.

2021 JDR 2351 p6

Lowe J

[13]

The real issue in this matter is simply whether Respondents, or some of them, are preventing Applicant and contractors from having access to Bengal Road.

[14]

Applicant avers that:

[14.1]

On 23 February 2021 Applicant was notified by Nineteenth Respondent "representing 18 homeowners" (not identified in the papers) of complaints by "the new homeowners" regarding the "properties".

[14.2]

On 13 March 2021 the "residents" at the premises barricaded the development entrance preventing the contractor or workers from accessing same.

[14.3]

A meeting was held with "the homeowners" to address this and the matter went on to certain negotiations during which "the Respondents" permitted access.

[14.4]

This went on till 5 June 2021.

[14.5]

This negotiation broke down and on 6 June 2021...