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[2022] ZAECMHC 13
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Bikitsha v Bikitsha and Others (2807/21) [2022] ZAECMHC 13 (17 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION MTHATHA]
CASE
NO.2807/21
In
the matter between:
NOZIBELE
BIKITSHA
Applicant
And
PUMZA
BIKITSHA
First Respondent
BANDA
BODOZA
Second Respondent
AYANDA
BODOZA
Third Respondent
BELEZA
BODOZA
Fourth Respondent
JUDGMENT
TOKOTA
J
Introduction:
[1]
The applicant is approaching this court seeking an order to confirm a
temporary interdict
restraining and interdicting the respondents from
entering the applicant’s home situated at Hlombe location
Lusikisiki, Eastern
Cape with the purpose of committing unlawful acts
by removing assets except those belonging to the first respondent. A
Rule Nisi
was granted by this court on 6 July 2021 calling
upon the respondents to show cause, on 24 August 2021, why the
interim order cannot
be made final. On 24 August 2021 the
Rule
was extended to 7 September 2021. On 7 September 2021 the matter was
simply postponed to 5 May 2022 and the
Rule Nisi
was not
extended. The respondents are opposing the matter.
Factual
background:
[2]
The first respondent was married to the late Sanele Bikitsha who was
the brother of
the applicant. That marriage was dissolved by the
death of Sanele who died on 1 June 2021.
[3]
After the death of her husband the first respondent was chased away
from her marital
home by the applicant instructing her to take all
her personal belongings and go away. The applicant is staying at her
house in
Mthatha where she is employed. The first respondent is
staying in Gauteng where she is also working.
[4]
On 11 June 2021 the first respondent went and removed some of her
personal belongings
from the marital home. The applicant claims that
some of the items removed by the first respondent belonged to her
late brother.
She claims that the first respondent is not the heir to
her late brother’s estate and as such taking items belonging to
him
is tantamount to self help.
[5]
It is not necessary to set out the details of what had already been
removed or what
damage was caused thereby as the interdict is corned
with future conduct and not the past.
[1]
[6]
On 12 June 2021 the respondents visited the marital home of the first
respondent again
but could not remove anything as they were prevented
from doing so. On15 June 2021 the respondents went back again, this
time accompanied
by the police and being in possession of a letter
from Justice Centre authorising them to remove other items such as
garage doors.
They were again prevented from removing any item and
were advised that they would not be allowed to do so without a court
order.
They then left.
[7]
The applicant contends that the first respondent has no right to
remove anything belonging
to her husband since she is not the heir to
his estate. She contends that the first respondent is committing an
offence of trespassing
by visiting her marital home.
Discussion:
[8]
The requirements for a final interdict are trite.
[2]
Accordingly, in order to succeed, the applicant must establish such
requirements. These are (a) a clear right, (b) injury actually
committed or reasonably apprehended, and (c) the absence of similar
protection by any other ordinary remedy.
[9]
The clear right to be proved is a right to which, if not protected by
an interdict,
irreparable harm would ensue. Quite apart from the
right to an interdict, the applicant should demonstrate a right that
is threatened
by an impending or imminent irreparable harm. It is a
right to which, if not protected by an interdict, irreparable harm
would
ensue.
[3]
An interdict is
meant to prevent future conduct and not the past. When the applicant
approached this court for an interim interdict
she should have
demonstrated a
prima
facie
right that is threatened by an impending or imminent irreparable
harm. On her own version she did not demonstrate any right which
was
threatened.
[10]
This application falls flat on the first requirement for final
interdict. The applicant is not
the owner of the property from which
the first respondent has been interdicted. She stays in Mthatha. The
place in question is
the marital home of the first respondent. It is
common cause that the first respondent was married to the applicant’s
brother
(the deceased).. She was the one who bought the house hold
necessities as her husband was not working. The applicant has no
right
to prevent her from staying, visiting or even taking her own
property from the marital home. The applicant has not alleged any
right which she may have had to any property in the homestead. There
she has not demonstrated any right to be protected by means
of an
interdict.
[11]
The second requirement depends on the first one. Consequently the
application cannot succeed.
This is merely a family feud which should
not have come to this court.
[12]
There was an argument that the
Rule Nisi
has lapsed by reason
of the fact that when the matter was last postponed to 5 May 2022 the
Rule
was not extended. In the light of the view I take of the
matter it is not necessary to debate that issue here. I will assume,
without
deciding, in favour of the applicant that the
Rule
has
not lapsed.
[13]
What remains is a question of costs. The general rule is that costs
should follow the event.
I see no reason why I should deviate from
that rule.
[14]
In the result the following order will issue:
1.
The
Rule Nisi
granted on 6 July 2021 is hereby discharged.
2.
The applicant is ordered to pay costs of this application.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant:
Mr S L Mgxaji
Of
Mgxaji & Co Inc.
For
the respondent:
Mr Madubela
Instructed
by Mkata Attorneys
Date
of hearing:
5 May 2022.
Date
of delivery:
17 May 2022.
[1]
National
Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC) para.50
[2]
Setlogelo v Setlogelo
1914 AD 221:
at 227
[3]
OUTA para.50 footnote 1
[4]
Setlogelo
v Setlogelo
1914 AD 221.
at 227.