IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG

Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO

CASE NO.: M160/2019
In the matter between:

MOTSOALEDI, RASEBEPI PIET N.O	First Applicant
MAHUMA, ANNA MATLAKAL N.O 	Second Applicant
MOPHATLANE, MASEFUDI DOROTHY N.O	Third Applicant
MOTLHATLHEDI, RAMAJA NICHOLAS N.O	Fourth Applicant
MAGORO, BOIYANE JOHANNA N.O	Fifth Applicant

And

THE MINISTER OF RURAL DEVELOPMENT	First Respondent 
AND LAND REFORM
CHIEF DIRECTOR, NORTH WEST DEPARTMENT	Second Respondent
RURAL DEVELOPMENT AND LAND REFORM
MOTLA, FRANCIS SELLO	Third Respondent
MOTLA, FRANCIS SELLO N.O	Fourth Respondent
MANNE, PETER	Fifth Respondent
MOALUSI, OUPA	Sixth Respondent
MASWABELA, JOHANNES	Seventh Respondent
MATLALA, ANDRIES	Eighth Respondent

JUDGMENT

MAKOTI AJ

INTRODUCTION

[1]	For the sake of convenience I shall retain the titles of the parties as they were in the main application. This is an application for leave to appeal the judgment that was delivered by Stanton AJ on 17 August 2020. The application was intended to interdict the Third Respondent from exercising statutory functions as Land Adjustment Commissioner (‘the Commissioner’). The interdictory order was sought primarily because of the allegation that the Third Respondent was not lawfully appointed as the Commissioner in respect of the Farm Bultfontein 178. 

[2]	Put differently, the gravamen of the relief sought was that the appointment was carried out in accordance with the provisions of the Land Titles Adjustment Act (‘LTAA’). In the alternative, the Applicant contended that if the Court was to find that the Commissioner was correctly appointed in terms of the provisions of the LTAA, then the appointment was still unlawful in that it was irrational, unreasonable or done by the Minister without properly applying his mind.

[3]	The Court in favour of the Applicant and interdicted the Third Respondent from continuing to perform the statutory functions of the office of Commissioner in respect of the Farm Bultfontein 178, ostensibly because his appointment into the position was not lawfully done. When reaching this conclusion, the Court reasoned inter alia as follows:

“[33]	The Provincial Chief Director did not assert that the Minister had any authority to delegate his exclusive statutory authority and obligation to appoint land title adjustment commissioner, or that the Minister did delegate same.”

[4]	The question whether the Minister had authority to delegate the statutory functions required consideration of the Act. Nothing contained in s 14 of the LTAA grants the Minister the authority to delegate her function of appointing a Commissioner. However, the question whether he indeed delegated his authority is a matter of fact. As I understand the point raised by the Respondent, the Applicant ought to have alleged that the authority was indeed delegated. However, what seems critical to me is the factual position when the appointment of the Commissioner was made. If there was delegation, then the matter should have rested unless the issue concerned the legality of the delegation. 

[5]	The lack of stipulation in s 14 of the LTAA granting the Minister powers to delegate her authority led to the Court pondering whether such case was made in the answering affidavit to the effect that the Minister was authorised to delegate his functions, and whether he had indeed done so. It found no such reference in the Minister’s affidavit. On the other hand, a memorandum purporting to be the Minister’s approval or delegation for the appointment of the Commissioner was attached to the answering affidavit. Regrettably, the deponent did not attempt to draw the Court and the Applicant’s attention to the approval, which led to the Court reaching a conclusion that the appointment was not done lawfully. 

[6]	The submission signed by the Minister does appear to be a delegation of authority for the appointment of the Third Respondent as Commissioner. This explains the reason why the Minister contended in the Court before and in this Court that, de facto, the Third Respondent was appointed as Commissioner and that the appointment was lawfully done. The principal issue raised by the Applicants in this application for leave to appeal is that the Respondent cannot be assisted in that he had failed to point out for the Court the relevant parts of the memorandum which proved that the appointment was done and in accordance with legislation. According to the Applicants, this rendered the answering affidavit on behalf of the Minister fatally defective. Also, the Applicant contended that this application for leave to appeal is fatally affected by the inadequate answering affidavit. 

[7]	As indicated, it is so that the Minister, as the repository of the powers or statutory authority to appoint the Commissioner, had approved the delegation which precipitated the appointment. The Applicants now accept this point, and went as far as stating that that the power of the Minister to delegate his functions was trite or that it was not in dispute. This contrasts with the Minister’s contention that, because he had approved the delegation, the natural effect of it was that the appointment of the Commissioner was lawfully made.
 
[8]	If indeed what was at issue was the question whether the appointment was properly approved, according to the Minister, the mere production of such proof should have put paid to the question. At first blush this appears to be quite an attractive contention. However, legal authorities required of the Minister to have fully pointed out the material facts on which his opposition of the application was grounded. He did not do so, and that defect had disastrous effect. 

[9]	The Applicant relied on the authority of Genesis Medical Aid Scheme v Registrar, Medical Aid Schemes and Another for the proposition that failure to refer to the paragraph was fatal to the Minister’s case. The relevant paragraphs of the judgment essentially provide that Courts were required to decide cases on the basis of the issues between the parties, and materiality grounds not relied on by the Registrar could not be used to decide the present matter; and if a litigant was permitted to engage in trial by ambush, neither could the court.

[10]	As I understood the case, the Minister relied on the delegated authority to contend that the appointment of the Third Respondent as Commissioner lawfully made. But the Court found that the answering affidavit ought to have alleged the facts instead of expecting the Applicant to trawl through the annexure to find an answer. Mere production of the delegation was not sufficient according to authorities in Genesis, above and from the Supreme Court of Appeal in the case of Minister of Land Affairs and Agriculture v D & F Wevell Trust, in which held that:

“The case that was made out, was conclusively refuted in the replying affidavits as I pointed out in paras [18] to [20] above. It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest — the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts. The position is worse where the arguments are advanced for the first time on appeal. In motion proceedings, the affidavits constitute both the pleadings and the evidence: Transnet Ltd v Rubenstein [2006 (1) SA 591 (SCA)in para 28], and the issues and averments in support of the parties' cases should appear clearly therefrom. A party cannot be expected to trawl through lengthy annexures to the opponent's affidavit and to speculate on the possible relevance of facts therein contained. Trial by ambush cannot be permitted.” (Footnotes omitted)

[11]	This Ministry was involved in the SCA matter, quoted above, and ought reasonably to have known what was expected from it when the answering affidavit was prepared. I can find no excuse for not following the authorities from the higher courts. By mere reading of paragraphs 2 and 3 of the Notice of Motion, all the parties were made aware of the case that they were required to answer, including the challenge to the legality of the appointment of the Commissioner. The Court was also alive to this fact hence it remarked about in paragraph 34 where it accepted the presumption that was advocated for by the Applicants to the that there was no delegation for the appointment of the Commissioner. The Respondents should have simply stated the fact that the delegations were done and lawfully so by the Minister, which then led to the appointment of the Commissioner. 

[12]	Under the circumstances, I am not convinced that this application meets the threshold of s 17(1) of the Superior Courts Act which reads:

“Leave to appeal
17. (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
    (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;
(b)  the decision sought on appeal does not fall within the ambit of section 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[13]	The test to be applied is now higher than what it used to be. It is no longer whether another court may (might) come to a different decision than what the trial court arrived at. It is now whether another court, sitting as court of appeal, would come to a different decision.

ORDER 

[14]	The Court hereby makes the following order:

[14.1]	Leave to appeal is refused. 

[14.2]	The First Respondent is ordered to pay the costs of this application are in the appeal. 

M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION

REPRESENTATIVES:

APPLICANT: 	ADV T SEBOKO
	THE STATE ATTORNEY
	MAHIKENG 

RESPONDENT: 	ADV HP van NIEUWENHUIZEN
	ADV NS NXUMALO
	TSHABALALA ATTORNEYS
	C/O MAREE & MAREE ATTORNEYS
	MAHIKENG

DATE OF HEARING	:	16 APRIL 2021
DATE OF JUDGMENT	:	10 AUGUST 2021