Umcebo Properties (Pty) Limited v Mokwena
| Jurisdiction | South Africa |
| Judge | HF Brauckmann AJ |
| Judgment Date | 22 July 2020 |
| Docket Number | 5526/19 |
| Hearing Date | 21 July 2020 |
| Citation | 2020 JDR 1446 (MN) |
Brauckmann AJ:
INTRODUCTION:
This spoliation application, coupled with additional interdictory relief sought by the applicants, should never have seen the inside of any urgent court, let alone on Christmas Eve. It was a matter that clearly did not deserve the Court's urgent attention at that stage, and should have been solved by way of discussion between the parties' respective legal representatives. There were no imminent threat to lives or property and the alleged "construction of the kraal" was stopped, and the kraal demolished.
The matter was heard on 24 December 2019. The Court found the matter to be urgent, enrolled it and after hearing argument, granted a rule nisi returnable 24 January 2020 on which date, by agreement, the rule was extended and the Court issued a case management order providing for the further exchange of affidavits, exchange of heads of argument and a hearing of the main application on 14 April 2020. Due to the severe restrictions placed on the hearing of applications and litigation in general as a result of the COVID -19 pandemic and resultant state of emergency in South Africa, as well as some other technical concerns, the rule was extended further, and the matter set down to be heard on 21 JULY 2020 via Zoom link.
THE RULE NISI:
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Brauckmann AJ
The rule nisi that issued called upon the first to nineteenth respondents ("the respondents") to appear in Court on the 24th January 2020 and provide reasons why the following orders should not be confirmed:
that he first to nineteenth Respondents (and their next-of-kin) are ordered not to: -
Interfere with and/or disrupt the first and second Applicant's access to Portion 14 of the Rem Extent of Middelkraal 50 IS, ("the property"); until final determination of the main Application on 24 January 2020; [Own emphasis]
erect any structure, including a kraal, on the property;
occupy the property;
Participate in and encourage any, person to commit acts of misconduct at/on the property, and at the Izimbiwa Central Complex Offices, in particular, by conducting themselves in a violent manner; by interrupting operations and related activities; by blocking the entrances and preventing the second applicant and/or employees of Umcebo Properties from entering the property and/or their workplace and performing their duties, as well as Umcebo Properties' independent contractors and service providers from coming to work or leaving its premises in order to
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Brauckmann AJ
proceed home or to conduct their activities on the property and the premises of Umcebo Properties;
Interfering in any manner with the business of Umcebo Properties; and
Interfering in any manner with the business of the second Applicant.
Further the Court ordered the applicants to serve the order as follows:
The Sheriff of the High Court is hereby authorised and directed to -
Read out the terms of this order over a loudhailer at the gates of the property;
Affix a copy of this Order to the gates or fences or entrance/s of the property to the extent that it is practical to do so.
The service of this Order on the first to nineteenth Respondents is also authorised to take place in any of the following ways:
by short message service (sms);
by multimedia message service (mms);
By Whatsapp;
By Facebook Messenger;
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Brauckmann AJ
By Twitter direct message;
By Viber message: or
By Telegram message.
The service of this order on the twentieth to twenty second Respondents may be effected by either the Sheriff of the High Court or any other person in the employ of the Applicants attorneys.
The South African Police Services responsible for the area where the property is based is hereby ordered alternatively authorised to enforce and implement the terms of this Court Order.
The service of this order on the twentieth to twenty second Respondents may be effected by either the Sheriff of the High Court or any other person in the employ of the Applicants attorneys.
The South African Police Services responsible for the area where the property is based is hereby ordered alternatively authorised to enforce and implement the terms of this Court Order.
In the event that one or more of the Respondents in any way interferes with the execution of this order, the Applicants are permitted to bring an application on the same papers duly supplemented, declaring him/her/them to be in contempt of court and being liable to imprisonment and/or the payment of a fine.
The issue of costs will be determined on the return date.
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Brauckmann AJ
The main relief sought in terms of paragraph two of the notice of motion, is for an order restoring the second applicant's peaceful and undisturbed possession of Portion 14 of the farm Middelkraal, 50 IS, Mpumalanga ("Portion 14"). In other words, a spoliation application was brought. That relief was not entertained by Mankge AJ who heard the urgent application. The following sentence in the draft order presented to her was lined through by her: "and the second Applicant's peaceful and undisturbed possession". Mankge AJ also added the sentence: "until final determination of the main application on 24 January 2020" [1] [Own emphasis] after the semi-colon in paragraph 3.1 of the rule nisi. More about the deletion, and addition later.
The prayers of the notice of motion in which the applicants sought the dismantling and removal of structures, materials and machinery from the Portion 14 were never required as the only structure that second applicant complained about, the kraal, have been removed on 10 December 2020 by Glencore employees already and the relief should not have formed part of the relief sought.
THE AFFIDAVITS:
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Brauckmann AJ
In terms of a case management order the parties agreed to periods and time-lines within which they had to file further supplementary affidavits and heads of argument; determined a date for the hearing of the application; extended the return date of the rule nisi. The respondents filed a supplementary opposing affidavit and the applicants a supplementary replying affidavit. The twentieth to twenty second respondents did not oppose the application, and I was informed by Adv Cook SC, on behalf of the applicants, that they had consented to a draft order presented to me.
It became common cause that the sixth, seventh, eighth, fifteenth and 16th respondents have passed away, and should not have been joined as parties to the application. They were however "replaced" by members of the community who deposed to confirmatory affidavits in terms whereof they confirmed that they are the representatives of the deceased respondents. I will return to this aspect later in the judgment.
THE SOUTH AFRICAN POLICE:
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Brauckmann AJ
The Local Seat of this Division of the High Court is situated amongst a large number of coal mines, as well as power stations. There are also many businesses that render services and goods to these mines and power stations. Due to the dynamic and sometimes volatile nature of the labour market, there are often violent industrial and / or protest action, strikes and unlawful protest action experienced amongst the workforce within the jurisdiction of this Court and it is very often approached for urgent relief preventing and/or interdicting the actions.
I have yet, in this Local Seat of the Division, to be allocated an application where the applicants do not join, or apply for an order against the South African Police Services ("the SAPS") to control the crowds and to prevent obvious unlawful conduct by protestors. The usual averments in the founding affidavits are to the effect that the applicant filed a complaint with the Community Service Centre, but was informed that a court order is needed before they may act. In other words, the SAPS who is Constitutionally obliged to protect the citizens and their property needs a court order to "activate" them to come to the assistance of the victims of such crimes [2] .
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Brauckmann AJ
The sacrosanct separation of powers between the various state organs is conveniently ignored by the Police in most of the cases. I pause to mention that on date of the hearing of this application I was allocated an urgent application in which the same relief, for exactly the same reason, was sought against the SAPS.
The objects of the police are to prevent, combat and investigate crimes, maintain public order, protect and secure the inhabitants of the Republic, their property, to uphold and enforce the law and the national public service must be structured to function in the national, provincial and where appropriate, local spheres of government [3] .
The Judge President of this division also had the unfortunate opportunity to deal with an application where the SAPS held the same attitude towards complainants who sought their assistance during protest action [4] . In the matter he stated:
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Brauckmann AJ
"[16] This court is not hearing about this kind of responses by the SAPS for the first time. When matters deserving maintenance of public order by the police are reported to the police, immediate response is required. It would constitute a wanting conduct on the part of the police not to act on a criminal activity reported to them. Our courts often hear these kind of stories against our police officials particularly in this part of the Province where mining activities are very high. To seek an order of court before an action is taken on a criminal activity can...
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