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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, THOHOYANDOU)

                            CASE No HCAA01/2016

HC AA07/19

In the matter between:

P M E BUSINESS ENTERPRISE                                                         FIRST APPELLANT

T/A MAAKE FARMING(CK NO 2002/042830/23)

MOHALE EVANS MAAKE                                                                 SECOND APPELLANT

HEADMAN : MICHAEL MOROPENE                                                  THIRD APPELLANT

MODJADJI TRADITIONAL COUNCIL                                             FOURTH APPELLANT

And

BLOCK 17, GA-SEAPHOLE CONCERNED                                             RESPONDENTS

COMMUNITY RESIDENTS: Individuals listed in

Annexure”A” 13th to 272

JUDGMENT

LEDWABA AJ

Introduction

[1] The appellants in the main appeal are PME Business Enterprise trading as Maake Farming ( CK NO 2002/042830/23)( PME Enterprise)  , Mohale Evans Maake( Maake) , Headman: Michael Moropene (the headman) and Modjadji Traditional Council( the council) . Maake is the sole member of PME Enterprise. These parties were the respondents in the declaratory and interdict application issued under case number 1663/2015.

[2] The respondents in the main appeal are Block 17, Ga-Seaphole Concerned Community Residents: Individuals listed in Annexure “A” 13^th to 272 appellants. They were the applicants in case number 1663/2015.

[3] In view of the long history of this matter and the different citations given to the parties at different stages of the proceedings of this matter, for convenience and consistency and unless the contrary is indicated, the appellants will jointly be referred to as “PME Enterprise & Others”. When reference is made to PME Enterprise, Maake and his family they will be referred to as “PME Enterprise & Maake family”. The respondents will be referred to as “the Concerned Residents”.

[4] As cited parties, Greater Letaba Local Municipality and the Department of Co-Operative Governance, Human Settlement and Traditional Affairs: Limpopo Province played little or no role in these appeals. PME Enterprise & Others and Concerned Residents are the main players in the appeals dealt with in these proceedings.

[4] In the main appeal, PME Enterprise & Others are appealing against the judgment and order delivered on the 3^rd September 2018, which was varied on the 1^st February 2019. The variation application was brought by the Concerned Residents. With regard to the court order, the grounds of appeal are to the effect that the court of first instance erred when it declared null and void the Permission to Occupy (the PTO) granted to PME Enterprise, ordering the removal of the fence from the disputed land and prohibiting farming activities on the disputed land.

[5] PME Enterprise & Others are also appealing against the judgment and the court order delivered on the 20th September 2018. In terms of the court order and save for the ruling of the costs of the 27^th October 2017, the Taxing Mistress’ taxation of the bill of costs presented on behalf of the Concerned Residents was confirmed. This appeal will be referred to as the “taxation review appeal”.

[6] PME Enterprise & Others are again appealing against the cost orders granted against them on the 1^st February 2019 in relation to their Rules 7, Rule 15 as well as the Concerned Residents’ variation applications. With regard to Rules 7 and 15, at issue was the authority of the Concerned Residents’ legal representatives to represent some of the community members. The appeals in respect of Rules 7 and 15 as well as the variation application will be referred to as the “Rule 7 and variation appeals”.  

[7] The Concerned Residents are appealing against the cost court order of the 3^rd September 2018 in relation to the filing of the supplementary answering and replying affidavits. The supplementary application was brought by PME Enterprise & Others. This appeal will be referred as the “supplementary proceedings appeal”.

[8] All these appeals are with the leave of the courts of first instance and are against the judgments and orders granted by Semenya J (as she then was).

The background

[9] PME Enterprise & Maake family are involved in farming. In Maake’s version and since his father’s death in 1993, he has been farming on the farm that was used by his father. In 2010 he extended and fenced the farm. The Community Residents’ version is that since the death of Maake’s father, PME Enterprise & Maake family have been farming on the two hectares portion of the land which was allocated to Maake’s father with the consent of the community and that in 2010 and without the community’s consent, PME Enterprise & Maake family extended their farming activities to the unused fifty hectares disputed land and fenced it off. This prevented other members of the community from using the extension for the grazing of the community livestock. This resulted in the eviction application by some members of the community under case number 1663/2015.

[10] When some members of the community blocked access to the disputed land, PME Enterprise & Others issued the interdict under case number 778/2015. The members of the community included the office bearers of Ga-Seaphole Community Development Committee (the Committee) under the chairmanship of Advocate Matome Victor Sehunane (Adv Sehunane). The committee was the community elected structure responsible for community development, including communal land matters. The interdict was opposed, with Adv Sehunane, as the chairperson, deposing to the confirmatory opposing affidavit. As the chairperson, Adv Sehunane also signed one of the letters addressed to Maake.

[11] On the 7^th April 2015 and under the said case number 778/2015, the court granted with costs an interim interdict, which was confirmed as final on the 21^st May 2015. Following the confirmation of the interdict, the members of the committee, including Adv Sehunane withdrew as litigants, leaving the Concerned Residents as the only party resisting the occupation of the disputed land by PME Enterprise & Maake family.

[12] On the 3^rd September 2018 and under case number 1663/2015, the Concerned Residents were granted the order declaring null and void the PTO and ordering PME Enterprise and Maake to remove the fence from the disputed land. They were also prohibited from continuing with farming activities on the disputed land. The Concerned Residents were ordered to pay the costs of the 2^nd November 2017. PME Enterprise & Others and the Concerned Residents were ordered to pay their own costs in respect of the main application. The subjects of main appeal are the nullity declaratory and interdicts in respect of the disputed land.  

[13] It is common cause that PME Enterprise & Maake family cannot continue using the disputed land on the basis of the invalid PTO. They submit that on the basis that Maake’s father used the disputed portion of the farm, they can sustain the occupation and usage of that portion of the land. The Concerned Residents’ case is that they have no problem that PME Enterprise & Maake family use the portion of the farm they describe as the two hectares used by Maake’s father before his death.

[14] There is no dispute that the problem started when PME Enterprise & Maake family put up a fence around a portion of the land and started using it, irrespective of whether it is identified as a fifty hectares or not. Given the facts in this matter, the identity of the disputed land cannot be an issue. PME Enterprise & Others obtained an interdict to access the disputed identified land when the access was blocked by some of members of the community. The members of the community would not block access to the two hectares portion of the land they accept may be occupied and used by PME Enterprise & Maake family.  In the letter to the speaker of Greater Letaba Municipality, Maake himself says when the portion of land he was using became insufficient, he identified unused portion where he could extend his farming operations. In the letter dated the 12^th January 2015 attached as annexure BBC 2 , PME Enterprise & Maake family’s  attorneys say their clients are owners of a fifty hectares land they occupied in terms of the PTO since 2010.[1] In terms of the court order of the 3^rd September 2018, PME Enterprise & Maake were ordered to remove the fence on the land other than that which belonged to Maake’s father or Maake family.[2] The PTO document itself reflects the extent of the land as being fifty hectares.[3] Given these, the disputed land is the portion other than the two hectares used by Maake’s father before his death, which is the fifty hectares portion.

[15] A holder of a right to occupy a communal land does not have a title deed which gives such holder the full ownership right to dispose off or encumber such land. Such right is limited to permission to occupy and used such land. The Interim Protection of Informal Land Rights Act No 31 of 1996(IPILRA) describes the right as informal.

[16] A communal land can only be occupied and used with the consent of a community allocated such land.[4]

[17] The dispute is about and started with the extension and fencing of the disputed land around 2010. The question is whether PME Enterprise & Maake family needed and have obtained community consent to occupy the disputed land. The disputed land being the communal one, both parties agree that the protection of its tenure is based on the IPILRA.

[18] The court of first instance found that the extension was done without proper consultation with the community at a properly convened meeting and in contravention of IPILRA.[5] It found that although the headman and the council had filed confirmatory affidavits, this does not constitute consent from the community. The question whether the allocated land revert to the community for reallocation without being inherited does not arise in respect of the extended disputed portion of the land. This was never allocated with the community’s consent.

[19] PME Enterprise & Maake family needed consent from the community to occupy for usage the disputed land, otherwise they need not approach the headman and the council. The Concerned Residents would also not have the reason to complain. PME Enterprise & Maake have no basis to complain about the alleged discrimination in favour of other members of the community such as Mawasha and others and use that as the reason to continue using the disputed land. As the Concerned Residents have approached the court to evict them from the disputed land, it is not available to PME Enterprise & Maake family to rely on section 25 of the Constitution to sustained their occupation of the disputed land. This is not deprivation of property without resort to law. PME Enterprise & Maake family can also not be heard to be saying because other members of the community are allegedly using the communal land without community consent, it is customary at Ga- Seaphole to use communal land without community consent. Communal lands are held by traditional leaders in trust for the benefit of community members. The usage of such land cannot be without the consent of community members.

[20] There is no basis to interfere with the court of first instance decision that in the absence of community consent, PME Enterprise & Maake family cannot continue to use the disputed land. The appeal falls to be dismissed with costs.

[21] There is no reason why PME Enterprise & Others should not be ordered to the cost of this appeal on party and party scale. By assisting PME Enterprise & Maake family, the headman and the council contributed to the escalation of the costs and deserve to be ordered to pay the costs jointly and severally with PME Enterprise & Maake.

Taxation review appeal

[22] In terms of Rule 48 of the rules of this court, PME Enterprise & Others are appealing against judgement and order dated the 20^th September 2018 relating to the taxation review. Rule 48(1) is available to a party which is dissatisfied with a ruling of a taxing master as to any item or part of any item which was objected to or disallowed. It allows a disgruntled party to require a taxing master to state a case with a view to review a taxation.

[23] The taxation was done by Mrs Kekana in her capacity as the Taxing Mistress. PME Enterprise & Others raised objections not only to some of the items appearing on the presented bill for taxation, but also to Adv Sehunane submitting a bill as the litigant chairperson of the Committee and an advocate for some members of the community. PME Enterprise & Others submitted that Adv Sehunane’s submission of the bill is in contravention of the rules of the General Bar Council which prohibit counsels to act in a potential conflict of interest matter without the General Bar Council’s consent. Adv Sehunane’s response is that since his withdrawal as the litigant, he can present his bill for his fees earned as counsel. He concedes that he cannot be paid counsel’s fees relating to the court order of the 27^th October 2017, which covers the period before his withdrawal as litigant. In response PME Enterprise & Others’ position is that for as long as his confirmatory affidavit and the letter he wrote as chairperson to Maake ordering him to vacate the disputed land remain part of the court record, Adv Sehunane remains a potential witness and his withdrawal as a litigant has no effect to the alleged conflict of interest conduct. The items in respect of which there was objection are listed in paragraph 4 of the judgment.

[24] The court of first instance observed that the relationship between the parties’ legal representatives was emotional, with Adv Sehunane saying it was personal. If proven, the alleged potential conflict of interest is a professional ethical misconduct which falls to be dealt by the relevant professional bodies, but on behalf of PME Enterprise & Others, it was submitted that this could not be referred to the relevant professional bodies in the middle of the proceedings. In her stated case, the Taxing Mistress stated that the complaint against Adv Sehunane should have been raised at the hearing of the matter and not at the taxation session. A taxing master’s authority is limited to taxation of the items that appears on the presented statement of account and does not extend to an authority of a legal representative to represent a party and present a bill. A taxing master has no authority to rule on the alleged conflict of interest misconduct. In an alleged misconduct matter by a member, the court should be the last resort and be slow to make pronouncement ahead of the authorised professional body to which such a member belongs. The idea of joining the local and or general bar councils as mooted on behalf of PME Enterprise & Others is an indication that there was awareness of their role. It would not have assisted if these professional bodies were not given space to first deal with the alleged misconduct.

[25] Relying on Levin[6] and Preller[7] cases, the court of first instance stated that taxation is a discretionary matter in the hands of a taxing master to allow, reduce or reject items in the bill, which discretion can only be interfered with on review if a reviewing court finds that a taxing master’s discretion was not properly exercised.[8] The court found that not withdrawing affidavit is an oversight without any malice on the part of Adv Sehunane.

[26] On the basis that Advocate Sehunane acted as a litigant and counsel before his withdrawal as the litigant, the court of first instance set aside part of the Taxing Mistress ruling of the costs up to and in relation to the court order of the 27^th October 2017 and confirmed part of the Taxing Mistress taxation in respect of other items relating to the period after the 27^th October 2017 when Adv Sehunane had withdrawn as the applicant litigant. The court found no reason to interfere with the Taxing Mistress’ decision on the costs incurred by Adv Sehunane in representing some members of the community after he had withdrawn as the litigant.

[27] There is no basis to interfere with the court of first instance decision that in a discretionary matter such as the taxing master’s taxation of a presented bill, the exercise of a discretion can only be interfered with in limited circumstances such as where the discretion was not judicially exercised [9].  A reviewing court cannot set aside the exercised discretion merely because it would have preferred to follow a different course among available choices. The appeal deserves to be dismissed.

[28] No reason has been shown why PME Enterprise & Others should not be ordered to pay the cost of this appeal.

Rule 7 and variation appeals

[29] This appeal relates to the costs incurred when PME Enterprise & Others brought an application in terms of Rule 7 and 15 on the 28^th November 2017. They sought that pending the presentation of the power of attorney, death certificates and appointment letters in respect of some of the litigants members of the community, the Concerned Residents’ legal team be prohibited from further representing those litigant, including for taxation purpose. The Concerned Residents responded that in the face of the full bench ruling that the resolution was sufficient proof of authority to represent the members of the community, the power of attorney was not necessary. Some death certificates were produced. When PME Enterprise & Others failed to reply to the answering affidavit, the Concerned Residents set the application down to be heard on the 2^nd May 2018. PME Enterprise & Others withdrew the Rule 7 application on the date of the hearing of the 2^nd May 2018 and the costs issue was by agreement between the parties reserved. It was argued on the 14^th May 2018 and the judgment was reserved to be dealt with together the main application.

[30] When the final judgement on the merits in respect of the main application was delivered on the 3^rd September 2018, it was silent on the reserved costs relating to Rule 7 and 15 applications. This omission prompted the Concerned Residents to apply for the variation of the court order in terms of Rule 42. In their variation application, the Concerned Residents cited the Committee as an interested party.

[31] The variation application was opposed by PME Enterprise & Others on the alleged defect of the Rule 42 and the citation of the Committee as a party despite the fact that the Committee had since withdrawn from the proceedings. It was common cause that the citation of the Committee needed to be rectified. Relying on Thompson case [10], the court of first instance found that a principle judgement or order may be supplemented in respect of accessary or consequential matters such as costs or interest on the judgment debt. It rectified the omission.

[32] The judgment in respect of variation application was reserved on the 2^nd November 2018 and delivered on the 1^st January 2019.[11] The court of first instance found that the application was withdrawn after the Concerned Residents had incurred preparation and travelling costs and that the opposition to the application was unreasonable and unnecessary. The court granted the variation and ordered that PME Enterprise & Others pay the costs of the variation application as well as the Rule 7 and 15 applications. The court also rectified reference to 1^st applicant to read as “erstwhile 1^st applicant” in judgment of the 3^rd September 2018.[12] 

[33] PME Enterprise & Others raise a number of reason for their submission that the court or first instance erred in ordering that they pay the costs relating to Rule 7 and 15 and the variation application. They submit that the Rule 7 and 15 was withdrawn after the requested documents were provided before the hearing of the Rule 7 application, rendering the application to become moot. They submit that they should not be ordered to pay the costs for what they regard as the defective Rule 42 application.

[34] There is no basis to fault the court of first instance’s judgment that as matter of fact, both these applications have costs implication that must paid by one of the parties. The court correctly found that the Concerned Residents cannot be directed to pay the costs relating to both the Rule 7 and 15 as well as variation application. PME Enterprise & Others initiated the Rule 7 and 15 applications and decided to oppose the variation application. They were correctly directed to pay the costs relating to all these applications. The decision of the court of first instance is confirmed, with PME Enterprise & Others ordered to pay the costs.

The supplementary proceedings appeal

[35] PME Enterprise & Others applied to supplement ther answering affidavit to the Concerned Residents’ application to declare the PTO a nullity and to have Maake’s family ejected from the disputed land. The basis for the supplementation was mainly that the pervious attorneys omitted to include in the answering affidavit the information sought to be supplemented.

[36] PME Enterprise & Others set the supplementary application down for hearing with the main application on the 2^nd November 2017 and as at the date of the hearing before Kganyago J, the Concerned Residents had not served their supplementary replying papers. The court treated the supplementary application as unopposed, granted the application and allowed the Concerned Residents ten days to file supplementary reply, if they so wished to do so. Before the question of costs was decided and apparently in order to avoid to appear to be requesting postponement, the Concerned Residents indicated that they were ready to proceed with the merits.

[37] On the 2^nd November 2017 and after submissions by the parties, Kangyago J reserved the question of costs relating to the supplementary application. On 3^rd September 2018, Semenya J (as she then was) ruled that the Concerned Residents failed to file their opposing affidavit and that their papers were not in order. She then ordered the Concerned Residents to pay the costs of the 2^nd November 2017. This aggrieved the Concerned Residents.

[38] The Concerned Residents’ submission is that since PME Enterprise & Others requested indulgence to file supplementary answering affidavit which resulted in the hearing of the merits being postponed, they should bear the costs. They questioned how could PME Enterprise & Others approach the court for leave to supplement the papers and be ready to proceed with the merits on the 2^nd November 2017, being date of the granting of the application? They question why should they pay the costs for the alleged tardiness of the attorney who omitted to place some facts before the court, especially where there was no opposition.

[39] It cannot be correct that as at the date of the hearing of the supplementary application on the 2^nd November 2017, the Concerned Residents were expected to have delivered their supplementary replying affidavit. Even if they had decided not to oppose the application, it would have been premature to have delivered the supplementary replying affidavit on the basis that the court hearing the application would rubberstamp the application. They were only allowed to deliver their supplementary replying affidavit after leave to deliver supplementary answering affidavit was granted at the hearing of the 2^nd November 2017. Kganyago J gave the Concerned Residents ten days from the date of the granting of leave to deliver their supplementary replying papers.

[40] The judgment does not elaborate in what respect were the Concerned Residents papers not in order but it does not appear that not being the applicant in the supplementary application, they were expected to see to it that the court file was in order. Their papers could not have been in order for the merits to be heard on the 2^nd November 2017 before they had delivered their supplementary reply ten days calculated from the 2^nd November 2017.  Kganyago J court order does not state that the reason for the postponement is because of any fault on the part of the Concerned Residents either because they had not filed their supplementary replying affidavit or that their papers were for any other reason not in order.

[41] The court of first instance erred in finding that the Concerned Residents’ papers were not ready on the 2^nd November 2017 when they were ordered to delivered the supplementary reply within ten days from that date. By ordering the Concerned Residents to pay the postponement costs of the 2^nd November 2017, the court of first instance erred. The appeal by the Concerned Residents succeeds, with PME Enterprise & Others ordered to pay the costs.

The costs of the main appeal

[42] This matter was first set down to be heard on the 9^th November 2020. On that day, based on the recusal application brought on behalf of PME Enterprise & Others and after giving reasons, Makhafola J recused himself. Due to no fault on the part of any party, the appeal could not be dealt with. There is no basis to order any of the parties to pay the costs of the 9^th November 2020.  

[43] During the hearing, the parties were invited to comment on the fact that there are many papers which were not necessary for the purpose of the hearing of these appeals. The parties conceded that they will not be entitled to the costs relating to such documents. The identification of these unnecessary papers will be left to the discretion of the taxing master and the appropriate order will be made.

Order

[44] The appeal by PME Business Enterprise trading as Maake Farming ( CK NO 2002/042830/23) , Mohale Evans Maake , Headman: Michael Moropane and Modjadji Traditional Council against the order of the 3^rd September 2018 in terms of which the Permission To Occupy granted to  PME Business Enterprise trading as Maake Farming  was declared null and void , ordering the removal of the fence from the disputed land and prohibiting PME Business Enterprise & Maake family from using the disputed land is dismissed.  PME Business Enterprise trading as Maake Farming ( CK NO 2002/042830/23) , Mohale Evans Maake, Headman: Michael Moropane and Modjadji Traditional Council are ordered to pay the costs on party and party scale jointly and severally the one paying others to be absolved. This costs include the costs of the 25^th March 2021 and excludes the cost of the 9^th November 2020.

[45] The appeal by PME Business Enterprise trading as Maake Farming ( CK NO 2002/042830/23) , Mohale Evans Maake , Headman: Michael Moropane and Modjadji Traditional Council relating to the court order dated the 20^th September 2018 relating to the review of the taxation is dismissed. P M E Business Enterprise trading as Maake Farming ( CK NO 2002/042830/23) , Mohale Evans Maake, Headman: Michael Moropane and Modjadji Traditional Council are ordered to pay the costs on party and party scale jointly and severally the one paying others to be absolved.

[46] The appeal by PME Business Enterprise trading as Maake Farming ( CK NO 2002/042830/23) , Mohale Evans Maake , Headman: Michael Moropane and Modjadji Traditional Council relating to the costs order in respect of Rule 7 and 15 as well as the variation application is dismissed . PME Business Enterprise trading as Maake Farming (CK NO 2002/042830/23), Mohale Evans Maake, Headman: Michael Moropane and Modjadji Traditional Council are ordered to pay the costs on party and party scale jointly and severally the one paying others to be absolved.

[47] The appeal by Block 17, Ga-Seaphole Concerned Community Residents- Individually listed from 13^th to 272 relating to the supplementary application succeeds. PME Business Enterprise trading as Maake Farming (CK NO 2002/042830/23), Mohale Evans Maake, Headman: Michael Moropane and Modjadji Traditional Council are ordered to pay the costs on party and party scale jointly and severally the one paying others to be absolved.

[48] All the costs will not include the costs ruled by the taxing master as being unnecessarily incurred for the purpose of deciding these appeals.

    LGP LEDWABA

                      ACTING JUDGE OF THE HIGH COURT

                      LIMPOPO DIVISION : THOHOYANDOU

 

I agree

NF KGOMO

JUDGE OF THE HIGH COURT

                               LIMPOPO DIVISION : THOHOYANDOU

AML PHATUDI J

Introduction

[49] I read the judgment penned by Ledwaba AJ  with Kgomo ADJP (as he then was) concurring (majority judgment). I am not in agreement in respect of the main issues forming the basis of the appeal. Where I differ, I do so on the application of the Law to the facts evidently placed on record. I, however, agree in principle, with the ratio decidendi relating to the cross appeal but for the wording of the order. I find it necessary to recalibrate the order.

[50] The appellants appeals against judgements and orders handed down by Semenya J (as she then was) on 3 September 2018 and 01 February 2019 respectively (High Court). The respondents cross appeal against the costs order they are mulcted with, which were occasioned by appellants’ application for leave to supplement their answering affidavit that was heard on 02 November 2017.

[51] The appellants were the respondents in the main application before the High Court and the respondents- the applicants. I will refer to the parties as cited in this appeal. I find it apposite to first set out the factual background which were, at some point, not sufficiently spelt out in the majority judgement.

Factual Background

[52] Thomo Thomas Maake was a farmer at Ha-Seaphole village, Limpopo Province. The village is headed by Michael Moropene, the headman under Traditional Leadership of Modjadji Traditional Council (third and forth appellants respectively). When Thomas died, Mohale Evans Maake, Thomas’s son, as the pater familia, took over the farming project and later registered it as PME Enterprises. PME and Maake are the first and second appellants respectively (the appellants). The appellants operate a farming business at Block 17 Ga- Seaphole village. Thomas had the permission to occupy the land. PME received the blessings of occupying the land from the third and forth appellants. The “Permission to Occupy” (PTO) was then issued at the Magistrates’ offices.

[53] The respondents, Block 17 Ga-Seaphole Concerned Community Residents, became unhappy with the land usage by the PME and questioned their rights and title to their occupation of the land. The umpteenth correspondence between parties morphed into an arduous legal battle that was initiated by the respondents when barricating the farm of PME. PME sought, on an urgent basis, the high court’s[13]succour and succeeded in securing their peace on 07 April 2015 through an interim interdict[14] granted by Makgoba JP against the respondents including Adv. Matome Sehunane. Kgomo J confirmed the the order. The respondents were finally interdicted.

[54] On 29 July 2015, the respondents initiated motion proceedings and sought an order in the following terms:

‘1. Declaring permission to occupy dated 29 July issued to the First Respondent and or second Respondents null and void.

2. Ordering the First and or Second respondents to remove the entire fence on the occupied communal land situated at Block 17, Ga- Seaphole Village, Modjadji, Limpopo province.

3. In the event that the First respondent and or the Second Respondents fail and or refuse to remove the fence on the date to be determined by the Honourable court, Sheriff of the court or his lawfully appointed Deputy be authorised and directed to remove the fence.

4. Restraining the First and the second Respondents to Continue farming on the occupied communal land.

5. The costs of this application to be paid by the First, Second, third and Fourth Respondents, including any respondents who may elect to oppose the application on attorney and own client scale.

[55] The appellants opposed the application. Certain in limine points were raised before Mogohloa DJP ( as she then was). Instead of only concentrating on the in limine points that were before her, the learned DJP dealt with the merits as well and dismissed the application with costs.

[56] Saddened by the said judgment and orders, the respondents appealed. The Full Court (Muller, MG Phatudi JJ and Semenya J (as she then was)) upheld the appeal on 25 May 2017 and set the judgment and orders aside. The Full Court remitted the matter “back for a different judge to determine the merits”. The merits of the main case were determined by Semenya J (High Court).

[57] On 3 September 2018, the High Court handed down the following order:

1. The permission to occupy land issued to the 1st and 2nd respondents by a magistrate is declared null and void.

2. The 1st and 2nd respondents are ordered to remove the fence on the land other than that which belonged to his father and or Maake family within a period of eight months.

3. In the event that the1st respondent and or 2nd Respondents fail and or refuse to remove the fence, the Sheriff of the court or his lawfully appointed Deputy be authorized and directed to remove the fence.

[58] Dissatisfied with the order due to some omissions made by the court, the respondents approached the court with a variation application in their hands. The variation order was then handed down on 01 January 2019. The order stipulates:

1. The 1^st to 4^th respondents are ordered to pay the 2^nd applicant’s costs of the Rule 7 and 15 applications.

2. The reference to the 1^st applicant in the judgement dated the 3 September 2018 should be read as the erstwhile 1^st applicant.

3. The 1^st to 4^th respondents are ordered to pay the costs of the variation application.

[59] The appellants’ dissatisfaction with the judgements and orders aforementioned, approach the appeal court with leave of the High Court.

[60] The appeal was allocated to a Full Court constituted by Kgomo ADJP (as he then was); Makhafola J and Ledwaba AJ. The appeal was enrolled for hearing on 06 November 2020. Makhafola J recused himself following the appellants’ application for his recusal. I substituted Makhafola J on a short notice.

[61] The appellants’ application for condonation of the late filing of the appeal records on the one hand and for the late filing of respondents’ cross appeal on the other hand, remained unopposed. In fact, both parties agreed, subject to the appeal court’s approval, that both appeals be heard simulteneously and with no order as to costs. It is trite law that condonation is not to be had merely for the asking[15]. The interest of justice[16] dictates that both condonation applications stands to be granted.

Issues

[62] The issues to be determined are:

1. Whether the court erred in granting the declaratory order when    nullifying the appellant’s permission to occupy.

2. Whether the court erred in ordering removal of the fence from the land in question.

3. Costs in relation to the withdrawal of Rule 7 and 15 applications.

4. Costs in relation to the appellants’ application to supplement their answering affidavit.

5. Taxation review.

[63] It is common cause that the appellants were in possession of a document depicting a certificate, evidencing a permission to occupy a piece of land by the appellants. It is further common cause that the said PTO is a certificate the appellants produced when confronted by the respondents. The issue of the procedure for obtaining the “permission to occupy” was questioned.

[64] The appellants unpacked the procedure for acquiring land in Ga-Seaphole village upto the issuance of the PTO. The appellants stated that a person who acquires land for the first time would attend Kgoro to request for land or site. A person who requires extension of land would approach the headman and his top ten committee. The application to occupy the land would either be approved by them or disapproved. The Modjadji Royal Kraal would then be informed and if approved, payment would be made depending on the size of the land.

[65] It is evident that the appellants followed the proper procedure. The headman and the Royal kraal approved of the appellants’ occupation. Modjadji Royal indicated in its letter, attached to the papers marked “SPF” that “Mr Maake’s 50 hectares along the Molototsi River, which we call Portion A, bears permission to occupy certificate”. This portion has been occupied by the appellant’s family since 1920”. Portions B and C were still under investigation.

[66] Maake stated that, he, in 2010, approached the headman and his top ten committee in Kgorong to request for extension as already alluded in terms of the practice and the request was approved. The Traditional Council as well approved of the application. He then approached the Magistrates’ Court Offices, being the only place he knew was responsible for issuance of the PTO. He submitted the letters of approvals from both the headman(third appellant) and the Royal Kraal (forth appellant). The permission to occupy was then issued.

[67] The High Court correctly found in favour of the appellants. She penned: “I do not agree that the [appellants] acquired the permission to occupy in a fraudulent manner.” The High Court further found that “the fact that the [appellants’] farm consists of land that belonged to [Maake’s] father is not in dispute. The [respondents] also allowed the [appellants] to continue to farm on that land. The extent of that land will have to be determined on the basis of the [appellants’] version”.

[68] The appellant’s version is that their family occupied a piece of land since 1920, which is 50 hectors in extent descibed by the forth appellant as portion A. A permission to occupy same was issued.

[69] It is trite law that any public document purporting to bear the signature of any person holding a public office purports to be the seal or stamp of the department, office or institution to which such person is attached, shall, on its mere production, be prima facie proof that such person signed such document and will be admissible as real evidence.[17] The permission to occupy issued at the Magistrates office and purports to bear the signature of the Magistrate, is, in my view, prima facie real evidence and admissible as such.

[70] The person purporting to have been the Magistrate; the office of the Magistrate Court or the department or institution to which such magistrate was attached, was not joined to prove or disprove the issuance of permission to occupy. The High Court erred, in my view, in declaring the permission to occupy null and void.

[71] The respondents’ reliance on Interim Protection of Informal Land Rights Act[18] was, in my view, misplaced. The purpose of IPILRA is well spelt out in its preamble to being “to provide for the temporary protection of certain rights to and interests in land which are not otherwise adequately protected by law; and to provide for matters connected therewith.”

[72] The respondents seems to be saying that the appellants ought to have consulted with the community before occupying the land.They rely on the provisions of section 2 of the Act. Section 2, which is titled: “Deprivation of informal right to land”, provides:

“(1) Subject to the provisions of subsection (4), and the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975), or any other law which provides for the expropriation of land or rights in land, no person may be deprived of any informal right to land without his or her consent.

(2) Where land is held on a communal basis, a person may, subject to subsection (4), be deprived of such land or right in land in accordance with the custom and usage of that community.

(3) Where the deprivation of a right in land in terms of subsection (2) is caused by a disposal of the land or a right in land by the community, the community shall pay appropriate compensation to any person who is deprived of an informal right to land as a result of such disposal.

(4) For the purposes of this section the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate.”

[73] The appellants did not appropriate the land from the members of the community or rights in the piece of land in issue. The appellants acquired the occupation and usage of the piece of land in terms of the Communal Land Rights Act which was framed by the government as legislation that would offer redress to people “whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices”, as proclaimed in Section 25 (6) of the Constitution. Sections 25(6) of the Constitution provides that “[a] person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”

[74] Thomas has been in occupation of the land since 1920. The appellants took over the farming project. The High Court as well found that “the [respondents] do not define the land that belonged to the [second appellant’s] father. On the other hand, the [second appellant] clearly described the said farm. I have no reason to decide against the [second appellant] in that regards”. The High Court erred, in my view, in ordering the removal of the fence on the land occupied by the appellants contrary to her findings. It follows that the order of removal of the fence from the appellant’s piece of land falls to be set aside.

Costs occassioned by the application to file Supplementary Answering affidavit.

[75] The main application was properly set down for hearing on 2 November 2017. Instead of proceeding with the hearing of the main application, the appellants applied for leave to supplement their answering affidavit. Kganyago J heard the application. He granted the appellants’ leave to supplement their answering affidavit. He further ordered the respondents to, within 10 days, file their supplementary replying affidavit, if they so wished. The costs were reserved. The High Court determined as to who should be mulcted with costs that were occassioned by the application and subsequent postponement of the matter on 02 November 2017.

[76] The High Court had this to say in determining the said costs. “With regard to the issue of costs incurred on 2 November 2017, it is undisputed that the [respondents] failed to file their opposing affidavit and that the delay was further occasioned by the [respondents] as their papers were not in order”.

[77] It is clear that the High Court, with respect, got it factually wrong. The appellants are the ones who applied to supplement their “opposing affidavit and not the respondents.” The appellants applied for leave to supplement their answering affidavit.

[78] It is trite law that only three sets of affidavit are allowed[19]. The court may, in applying its judicial discretion, permit the filing of further affidavits. The delivery and or filing of further affidavits in motion proceedings is permissible only with the indulgence of the court. Such permission may be granted only in exceptional circumstances such as when something unexpected or new emerges and even so, there should be a proper explanation which negates mala fides or culpable remissness as to why the information was not placed before court earlier by a party so applying.[20] It is clear that on 02 November 2017, the parties’ pleadings had already been closed. The matter was ready for hearing. The appellants approached court with leave to supplement its answering affidavit. Leave was granted. the respondent were ordered to file their supplementary replying affidavit, if any, or if they so wished, within 10 days.

[79] The appellants are the ones who sought the court’s indulgence to file supplementary answering affidavit. The appellants are the parties who ought to have been mulcted with costs occasioned by the said application. The costs occasioned by the said application falls to be placed on the appellant’s door.

Costs Occassioned by the withdrawal of Rule 7 and 15 applications and variation costs.

[80] On 28 November 2017, the appellants filed their applications in terms of Rule 7 and 15 respectively. The respondents opposed the application. The appellants withdrew the applications on the date set down for hearing. The issue of costs was reserved.

[81] When determining the main application, the High Court omitted to deal with the costs reserved in respect of the said applications. The respondents approached the court with a variation application. The appellants opposed the said application.

[82] I find it apposite to firstly deal with the withdrawal of the appellants’ applications in terms of Rules 7 and 15 respectively. The withdrawal of proceedings is regulated in terms of the Uniform Rules of this Court. Rule 41 stipulates:

“(1)(a) A person instituting any proceedings may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings, in any of which events he shall deliver a notice of withdrawal and may embody in such notice a consent to pay costs; and the taxing master shall tax such costs on the request of the other party”.

[83] The appellants failed to tender costs occasioned by their withdrawal of Rule 7 and 15 applications. That prompted the respondents to seek succour of High Court relating to such costs, of which the High Court, unfortunately, omitted to pronounce on when delivering the main judgement. Rule 41(1)(c) stipulates that “[i]f no such consent to pay costs is embodied in the notice of withdrawal, the other party may apply to court on notice for an order for costs”. The respondents applied for such costs and I am unable to fault the High Court in granting the respondents such costs. The appellants’ appeal in relation to such order falls to be dismissed with costs.

[84] It was indeed unnecessary for the appellants to oppose the variation application in that both parties were ad idem that the High Court omitted to deal with the costs so reserved. The High Court, upon the application of the respondents, varied the judgement to the extent in which she omitted to deal with as envisaged in terms of Rule 42 (1)(b). For ease of reference, the rule provides that ‘the court may, ... upon the application of any party affected, ... vary an order or judgment in which there is ... an omission, but only to the extent of such omission’. The High Court correctly varied its order only to the extent of its omission and further correctly so, with costs that followed the event. The appellants appeal relating to such costs falls to be dismissed.

Review of Taxation

[85] The respondents’ Bills of Costs were placed before the taxing master for taxation. Dissatisfied with the Taxing Master’s ruling, the appellants launched a review application in terms of Rule 48(1) of the Uniform Rules of this Court. Semenya J (as she then was) confirmed the Taxing Master’s ruling. The appellants appeals, with leave of the High Court, to this Court against the said judgment and order.

[86] Adv. Sehunane was a cited litigant in the proceedings. He, in the process of litigation, withdrew as one of the applicants on 07 August 2015. He appeared before court as a litigant “in person” and as counsel for other litigants who shared the same interest in the outcome of the matter.

[87] Bills of Costs were set down for taxation. The issue raised during taxation was whether Adv. Sehunane was allowed to appear as legal representative representing other litigants who happened to share the same interests and whether he is entitled to claim fees to that effect (respondents in this appeal).

[88] The Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities[21] promulgated under Legal Practice Act, Act 28 of 2014 provides that a Legal Practitioner shall not accept a brief if he or she has any form of a relationship with the client or an opposing party which compromises, or which might reasonably be expected to compromise the legal practitioner’s independence[22].

[89] The issue before the taxing master was whether Adv. Sehunane was entitled to the fees as billed in the respondents’ bill of costs. The taxing master opined that the advocate had the right to bill for his costs as counsel, only after his withdrawal as a litigant cited in the matter. The taxing master further ruled that the appellants should have raised this point with the High Court, for the court to make a ruling as to whether the advocate, who was once a party to the proceeding, is entitled claim costs as a legal practitioner.

[90] Adv Sehunane withdrew as a litigant in the process of the proceedings. He was cited as the “second applicant” in the main application. He had and still has a relationship with the respondents. He chaired the respondents’ committee at the time the motion was initiated. He withdrew as a litigant but did not withdraw his confirmatory affidavit forming part of the record. Failure to withdraw confirmatory affidavit renders advocate as a witness to the proceedings. He is the chairperson of the respondent and remained as such even after his withdrawal as a cited litigant.

[91] The High Court found that Adv. Sehunane was no longer an applicant. The High Court had this to say: “I found no reason to interfere with the taxing master on the costs for the application for leave to appeal and all other costs he incurred in representing the applicants after he had withdrawn as an applicant.” The majority judgment agreed. I beg to differ.

[92] The taxing master erred by indicating that the appellants ought to have raised the issue at court. The issue was never before court. The issue arose before the taxing master and he/she ought to have made a ruling. In fact, the taxing master made a ruling in favour of the respondents. The taxing master accepted that the advocate is entitled to such fees. The error was perpetuated in the High Court.

[93] The sitpulation in the Code of Conduct for all Legal Practitioners and Candidate Legal Practitioners is clear in that ‘a legal practitioner shall not accept a brief if he or she has any form of a relationship with the client, which might reasonably be expected to compromise the legal practitioner’s independence.

[94] It is common cause that Adv Sehunane had a relationship with the respondents. He was the Chairperson of the respondents. He was and probably still is a “family member” of the respondents, by vitue of him being one of the residents at Ga-Seapole village. The position the Advocate occupied, does, in my view, compromise his independence. The Taxing Master’s alloctur falls to be set aside. Bills of Costs must be referred back to the Taxing Master for taxation if the need for such taxation still exists.

Costs

[95] It is trite law that costs follow the event. Both parties succeeded partially.

[96] I, in the result, would make the following order.

Order

96.1  The appellants’ and respondents’ applications for condonation for the late filing of appeal records is granted with no order as to costs.

96.2  The appellants’ appeal is upheld.

96.3  The order of the High Court handed down on 03 September 2018 is set aside and replaced with the following:

“The applicants’ application as set out in the Notice of Motion is dismissed with costs”

96.4  The respondents’ cross appeal relating to costs occassioned by the interlocutory application on 2 November 2017  is upheld.

96.5  The High Court order ordering the “applicants to pay the costs of the 2 November 2017” is set aside and replaced with the following.

“The first and second respondents are ordered to pay the costs occassioned by the application to file supplementary answering affidavit reserved on 02 November 2017”.

96.6  The appeal against the order and judgment of the High Court relating to costs occasioned by the appellants’ withdrawal of Rule 7 and 15 applications including variation order handed down on 01 February 2019 is dismissed with costs.

96.7  The appeal against the Taxing Master’s Allucatur is upheld with costs.

96.8  The taxed Bills of Costs that are subject of this appeal are set aside with costs.The Bills of Costs are referred back to the Taxing Master for taxation.

96.9  There shall be no order as to costs relating to costs of this appeal court.

AML PHATUDI

JUDGE OF THE HIGH COURT

APPEARANCES

For the Appellants:                NE Kubayi

Instructed by:                        Noveni Eddy Kubayi Inc Attorneys

                                             noveni@nekinc.co.za

                                             info@nekinc.co.za

                                             novena.kubayi@absamail.co.za

                                             malokathulare@telkomsa.net

                                             malokathulare@gmail.com

For the Respondent:             Adv MV Sehunane

Instructed by:                        Sehunane Inc Attorneys

                                             sehunaneattorneys@gmail.com

                                             admin@mmattorneys.co.za

Heard on:                              25^th March 2021

Judgement delivered on:

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 8 July 2021.

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