Van Der Meulen v Dladla and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Flatela J |
| Judgment Date | 26 May 2023 |
| Citation | 2023 JDR 1897 (LCC) |
| Hearing Date | 24 March 2023 |
| Docket Number | LCC264/2016 |
| Court | Land Claims Court |
Flatela J:
Introduction:
This is an opposed rescission application brought in terms of section 35(11) of the Restitution of Land Rights Act 22 of 1994 ("the Act") read together with rule 64(2) of the Land Claims Court Rules ("the Rules"). The Applicant seeks to rescind and set aside an order granted by Makhanya J on 31 July 2017, alternatively, the variation thereof.
On 16 November 2016, the first to third respondents brought an urgent application against the Applicant (the Respondent in the urgent application) for an order in the following terms:-
The Respondent be ordered to allow the Applicants grazing rights for their livestock as well as available land;
The Respondent be ordered to allocate a grazing field for the applicants in the farm where they reside;
The Respondent be ordered to allow access to the occupants through the main gate.
Order of costs if opposed.
2023 JDR 1897 p3
Flatela J
The application was served upon the Applicant, and for reasons undisclosed, the Applicant did not oppose the application. On 31 July 2017, the matter served before Makhanya J, and he granted an order in the following terms (quoted verbatim without correction):
The Respondent be interdicted from reducing the Applicants grazing rights or livestock as well as available land;
The Respondent be ordered to allocate a grazing field for the Applicants in the farm where they reside;
The Respondent be ordered to allow access to the occupants through their main gate;
No order as to costs.
The order was served upon the Applicant on 11 October 2017 by the Sheriff. On 17 August 2018, the respondents instituted a contempt of court application against the Applicant for non-compliance with Makhanya J's order. The Applicant opposed the application. The Applicant delivered his opposing affidavit in November 2018, and the respondents delivered replying affidavits in December 2018. Thereafter the matter laid dormant for two years and only served before Cowen J on 19 October and 30 November 2020.
On 11 February 2021, Cowen J found the Applicant to be in contempt of court for failing to comply with the second order of Makhanya J granted on 31 July 2017, in which the Court ordered the first Respondent to allocate a grazing field for the Applicant on the farm where they stay. She granted the respondents leave to approach the Court for further relief on the same papers, supplemented where necessary, should the Applicant persist with non-compliance with the second order.
On 28 April 2021, the Applicant instituted these proceedings in which he seeks to rescind and or vary Makhanya J's order and an order to suspend Cowen J's order on the basis that:
2023 JDR 1897 p4
Flatela J
The orders were granted without any factual and legal foundation, and they lacked the hallmark of a court order and did not bring the case to finality, nor were they capable of enforcement.
The respondents made no case for the granted prohibitory and mandatory relief.
The relief of orders 1 and 2 are contradictory, given the respondents' case in the interdict application.
The mandatory relief of the second order needs to be clarified, it is vague, and indeterminable that it is impossible to discern the meaning of that order. In this respect, it is argued that the contents of the founding affidavit are of no assistance.
The Applicant avers that he will suffer prejudice if the interdict is allowed to remain in operation because he will be kept bound to a prohibitory interdict and is compelled to provide land to the respondents without cause.
The Parties:
The Applicant is Adams Johannes van der Meulen, a major male farmer, resident, and operating his farming activities at Portion 5 of the Farm Klipfontein 326, Ermelo, Mpumalanga.
The first Respondent is Milton Dladla, a major male occupier resident at Portion 5 of the Farm Klipfontein 326, Ermelo, Mpumalanga.
The second Respondent is Chris Dladla, a major male occupier resident at Portion 5 of the Farm Klipfontein 326, Ermelo, Mpumalanga.
The third Respondent is Joel Dladla, a major male occupier resident at Portion 5 of the Farm Klipfontein 326, Ermelo, Mpumalanga.
The first to third respondents are collectively referred to as "the respondents."
2023 JDR 1897 p5
Flatela J
The fourth Respondent is the Minister of the Department of Rural Development and Land Reform in charge of the Department of Agriculture, Rural Development and Land Reform (the Minister) cited in their official capacity.
The fifth Respondent is the Provincial Head of the Department of Agriculture, Rural Development and Land Reform (the Department), Mpumalanga, cited in their official capacity.
The Minister and the provincial Department are cited herein as they were part of any other proceedings under case number LCC 264/2016 and insofar as they have an interest in the matter.
Factual background:
The facts are primarily a common cause. Van der Meulen Family Trust owns Portion 5 of the Farm Klipfontein 326, Ermelo. The farm is 463 hectares in extent and is owned by the Applicant's family trust. The Trust also owns Portion 6 of the farm De Emigraite 327 Mpumalanga, which is 499 hectares in extent. The Applicant purchased the farm on or about 2013/2014 from the previous owner, Mr. Burhman. The Applicant conducts intensive farming operations on the farm, including cultivating soya and maize and also cattle and sheep farming.
Mr. Burhman, the former farm owner, granted the respondents and one Mr. Stephan Mtshangan 100 hectares for housing and grazing purposes. Mr. Burhman also fenced off that area. This portion of the land is the subject of this application.
Mr. Mtshangan and the respondents utilised the 100-hectare camp according to the number of livestock each had. Mr. Mtshangan utilized almost 50% of the 100-hectare portion, and the respondents shared the remaining 50%. The Applicant contends that since his 2008/2009, the respondents jointly kept an average of not more than 40 head of cattle, ten horses and 50 goats, amounting to approximately 67 large stock units, while Mr. Mtshangan kept an average of 58 head of cattle and five horses amounting to 63 large stork units.
2023 JDR 1897 p6
Flatela J
The Applicant contends that Mr. Burhman relocated Mr. Mtshangan to another farm, leaving the respondents as the only occupiers in terms of ESTA. The Applicant avers that Mr. Mtshangan voluntarily gave up his grazing rights to the grazing camp. Consequently, the Applicant then reduced the 100-hectare camp and extended his cultivation fields to 40 hectares of the camp. During 2015/2016, the Applicant prepared the land for cultivation and has been planting crops thereon.
The Applicant contends that since the reduction of the camp, the respondents continued to reside and graze their livestock on the remaining 60-hectare camp without any complaints. Then in an about turn, the respondents instituted the contempt of court proceedings against the Applicant for non-compliance with the order granted on 31 July 2017. The Applicant avers that he never interfered with the respondents' use of the 50-hectare camp.
The Applicant's submissions
The Applicant avers that upon being served with the order on 11 October 2017, he acquainted himself with it and was satisfied that he had not acted contrary to its terms before the granting of the order. The Applicant contends that he did not reduce the Respondent's grazing rights for their livestock or available land, and the Respondents were allocated the land where they reside. He was, therefore, not required to take any action. However, about a year later and on 17 August 2018, the respondents instituted contempt proceedings which sought to hold the Applicant in contempt for not complying with the court order.
The Applicant opposed the contempt application. His submissions before Cowen J were similar, if not at all the same, as expounded in the introduction and factual background.
Further submissions were that he was never advised of the hearing date of the interdict application. The interdict order only came to his attention after being served
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Flatela J
by the Sheriff on 11 October 2017, more than two months after the interdict had been granted on 17 July 2017.
Upon acquainting himself with the order, the Applicant...
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