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[2022] ZAECMHC 1
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Mdeni Community Members â Ncise Administrative Area v Minister of Rural Development and Land Reform and Others (33/2022) [2022] ZAECMHC 1 (1 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
No: 33/2022
In
the matter between:
MDENI
COMMUNITY MEMBERS –
NCISE
ADMINISTRATIVE
AREA Applicant
And
THE
MINISTER OF RURAL DEVELOPMENT AND
LAND
REFORM
First Respondent
THE
HEADMAN (GOBELINYANISO MAKAULA)
Second Respondent
THE
FORMER SUB-HEADMAN (ZUKILE SODO)
Third Respondent
UNKNOWN
OCCUPIER / TRESSPASSER
(MZWAMADODA
MBAMBODUNA)
Fourth Respondent
CHIEF
NO-ITALY MTIRARA MPHEKO
ADMINISTRATIVE
AREA
Fifth
Respondent
THE
SHERIFF OF THE HIGH COURT, MTHATHA
Sixth Respondent
JUDGMENT
BESHE
J:
[1]
These proceedings concern an application for
an interdict as prayed for in the notice of motion. The
notice of
motion consists of 12 prayers. Of those, it is sought that prayer 7
amongst others, operate as interim relief pending
the finalisation of
this application. The matter was set down for hearing on the 18
January 2022 and duly opposed by second and
third respondents. The
respondents are called upon to show cause on 25 January 2022 why the
rule nisi
(that would have been issued on the 18 January 2022
should not be confirmed.
[2]
One of the prayers in respect of an interim
interdict is as follows:
“
2.7
That in the event that fourth respondent has already built any
structure in the reserved land, he be ordered and directed to
demolish such a structure within 10 days of the issuing of this
order.”
So
much for an interim order. Needless to say that the fourth respondent
who is identified as unknown occupier / trespasser (Mzwamadoda
Mbamboduna) is, according to the applicant, in the process of
erecting a structure in the piece of land in question. So, applicant
is aware that construction is already taking place. To order the
fourth respondent to demolish the structure by way of an interim
interdict will have the effect of a final interdict in my view.
[3]
It does not appear as though the fourth
respondent was effectively served with the process initiating
this
application. The Sheriff’s return of service records that:
“
On
the 11 January 2022 at 17:47 the amended certificate of urgency,
notice of motion, founding affidavit and annexures were served
by way
of affixing at the main door of the given address”
.
The address as specified is given as: Mdeni Location, Ncise
Administrative Area Mthatha.
To
grant an order against the fourth respondent in circumstances where
it is not clear whether the notice of proceedings came to
his
attention will not be appropriate and will be unjust in my view.
[4]
As is apparent from the notice of motion,
the catalyst for this application is essentially a complaint
by the
applicant that third respondent, a “
deposed
”
sub-headman, with the support of the headman (second respondent)
unlawfully allocated sites to strangers from a piece of
land at Mdeni
Location. This, against a decision by the members of the community to
earmark or set aside the land for use for the
benefit of the
community at large.
[5]
The founding affidavit is deposed to by
Mr
Maso
who claims that he was duly appointed as sub-headman of
Mdeni Location on the 17 October 2021 at a meeting, by members of the
community.
This is not common cause however. From the founding
affidavit, it emerges that there is a structure that is being erected
on the
vacant land referred to above purportedly at the behest of
fourth respondent.
[6]
The crux of this application can be gleaned
from paragraph 14.1 of the founding affidavit which reads
thus:
“
14.1
If the interdicts sought in the Notice of Motion by the Applicant are
not granted the members of the Community stand to lose
a lot because
the successful erection of one structure in the land in question will
encourage a massive invasion of the land by
other people from Town
who run away from the Municipal rates and seek sites in the nearby
rural areas, and they are prepared to
pay large sums of money buying
the sites from the Headman and the sub-Headman. To discourage any
further invasion of the land of
the Mdeni Community it is imperative
that the Court issues the interdicts sought by the Applicant
Community against the Respondents
to prevent great harm that will
befall the members of the Community if such interdicts are not
granted. They will not be able in
future to build any Community hall
to cater for the general needs of the Community. They may need to
build a school or two for
their children, the land will no longer be
available having been subdivided to strangers by the 2
nd
and 3
rd
Respondents for their own economic benefit and not for the needs of
the Community. In all that disadvantaging the Community for
the
benefit of a few individuals.”
I
do not have any qualms with what is contained in this paragraph as
well as with the issuing of a
rule nisi
returnable on a future
date.
[7]
I have already alluded to the difficulties I
have with one of the prayers in respect of which an interim
interdict
is sought. There are several other such prayers – 2.2 to 2.8.
The question that arises is whether the applicant
has satisfied the
requirements for an interim / interlocutory interdict in regard
thereto. Those being:
(a)
A
prima facie
right;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually
granted;
(c)
a balance of convenience in favour of granting of the interim relief;
and
(d)
the absence of any other satisfactory remedy.
[8]
The
locus standi
of the applicant is
challenged by the second and third respondents who are opposing the
application. I am of the view that members
of the community of a
particular area, have sufficient interest in what is happening in
their community, in respect of what applicant
claims is communal land
over which they have rights. It is on the basis of this that I formed
the view that the first requirement,
namely,
prima facie
right
has been established albeit being subject to some doubt.
[9]
Is applicant’s apprehension of harm as
encapsulated in the extract from the founding affidavit
reasonable?
Is there evidence to support it or is there mere speculation and
conjecture on the part of the applicant that the erection
of one
structure on the land in question will encourage a massive invasion
of land by other people from town who want to avoid
paying rates? The
land has remained unused since a decision was taken in 2016 to
initiate a process to have it proclaimed / reserved
by first
respondent for purposes of building structures that are going to be
for the benefit of the community. No massive invasion
has taken
place.
[10]
I am not persuaded that the applicant will suffer
irreparable harm if the interim relief is not granted and the
final
relief is granted in due course. In my view, if the interim relief
were to be granted as sought, fourth respondent would
suffer
irreparable harm in the event the main application fails. Similarly,
I am not persuaded that the balance of convenience
favours the
applicant. Regarding the fourth requirement, applicant submits that
there is no satisfactory / suitable alternative
remedy, because
trying to evict the fourth respondent should the application be
successful will entail further litigation and resultant
costs. It is
accepted that this requirement is allied to the apprehension of
irreparable harm. I have already found that this has
not been
established. It is not a good enough reason in my view to say it will
be costly to evict later. Or that it will be cumbersome
to embark on
the procedure envisaged by the PIE Act. I have avoided making any
pronouncement regarding the merits of the main application.
I may,
however, mention that there appears to be a myriad of disputes of
facts between the parties. I will leave it at that.
[11]
Lack of
locus standi
in
judicio
was not the only point
in limine
raised by the second and third respondents. They
also assailed the application for lack of urgency. There can be no
doubt that
a delay of about one month after the applicant became
aware of the construction that is taking place before the application
was
launched, occurred. The explanation proffered by the applicant is
that the delay was caused by the need to collect money from members
of community in order that they can appoint legal representatives of
their choice. Also, that attempts were made to engage with
second,
third and fourth respondents before resort was had to litigation. The
explanation in my view appears to be reasonable.
[12]
For the reasons stated above, I am satisfied that the applicant has
made out a case for the issuing of a
rule nisi
returnable in
future as sought. I am, however, not persuaded that the order should
operate as an interim interdict in respect or
prayers 2.2 to 2.8.
[13]
Accordingly, a
rule nisi
is hereby issued calling upon
the respondents to show cause, if any, on Tuesday the 15 February
2022 at 09h30 or soon thereafter
as the matter may be heard why the
following orders cannot be made final:
1.
That the 2
nd
Respondent’s action as the Traditional
leader in whose area of jurisdiction the Mdeni Community falls, of
supporting the
unlawful actions of the former Sub-Headman of Mdeni
Community of subdividing the land belonging to the Mdeni Community to
strangers
contrary to the decision taken in a meeting held in 2016 be
and is hereby declared unlawful.
2.
That the 2
nd
Respondent be and is hereby interdicted and
prohibited from continuing to support 3
rd
Respondent in
breaching the Mdeni Community decision taken with regards to a
section of vacant land in the area.
3.
That the 2
nd
Respondent be and hereby ordered to work
together and support the newly appointed Sub-Headman of Mdeni
Community, Mr Maso in solving
the problems of the Mdeni Community.
4.
That the 3
rd
Respondent be and hereby interdicted and
prohibited from dishonouring the decision of the members of Mdeni
Community regarding
a piece of vacant land in a meeting held in which
meeting the 3
rd
Respondent was also present.
5.
That the 2
nd
and 3
rd
Respondents be and are
hereby ordered and directed to reverse any unlawful allocations of
land they had made to some strangers
without the approval of the
members of the Mdeni Community nor for the needs of Mdeni Community
members.
6.
That the unknown occupier cited herein as the 4
th
Respondent and referred to as (Mzwamadoda Mbamboduna) in the Return
of Service of a letter of demand by the Sheriff and allocated
land by
either the 1
st
Respondent of 2
nd
Respondent or
both in the land reserved for specific purposes by the Community of
Mdeni, be and is hereby ordered and directed
to stop building any
structure in the reserved land in question.
7.
That in the event the 4
th
Respondent has already built any
structure in the reserved land, he be ordered and directed to
demolish such structure within ten
(10) days of the issuing of this
Court’s Order.
8.
That in the event the ten (10) days referred to in paragraph 7 above
expires without the 4
th
Respondent having demolished his
structure, the Sheriff of the High Court (6
th
Respondent
herein) be and hereby ordered and directed to organise demolishing
equipment to be paid for by the 4
th
Respondent and
demolish the structure built by the 4
th
Respondent with
the assistance of the South African Police Services, if needs be.
9.
That the 5
th
Respondent as the Chief under whom both the
2
nd
Respondent and the 3
rd
Respondent serve as
traditional leaders be and is hereby ordered to ensure that there is
order in the Mdeni Community and that
there is only one Sub-Headman
operating, the one appointed by the Community on the 17
th
October 2021 and that the 2
nd
Respondent does not function
as a Sub-Headman of Mdeni Locality anymore.
10.
That the first Respondent as the responsible Minister be and hereby
ordered to respond to the request of the Mdeni Location
to have
vacant land in their location reserved for special uses by the
members of the Community for the benefit of the whole Community
with
immediate effect, in a time frame not more than two month’s
period.
Costs
to be costs in the application.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant :
Adv: E N
Nyobole
Instructed
by
:
P. N.
ZIDE & PARTNERS INC.
28 Madeira Street
Clublink Building, First Floor
MTHATHA
Ref: PZ/lz/MCM285-CIV
Tel.: 081 541 0324 / 072 704
1298
For
the Respondents :
Adv: S. S. T. Mapekula
Instructed
by
:
MESSRS
GUBEVU HLALUKANA INC
18 Owen Street
MTHATHA
Ref: Mr Hlalukana/NT/MAT 01-22
Tel.: 047 – 531 3863
Date
Heard
:
18
January 2022
Date
Reserved
:
18
January 2022
Date
Delivered
:
1
February 2022