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2022
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[2022] ZAECMHC 41
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Ngeketo and Others v Minister of Justice and Correctional Services and Others (3750/2022) [2022] ZAECMHC 41 (20 September 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, MTHATHA)
CASE NO: 3750/2022
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In the matter between:
VELISANI
NGEKETO AND 37
OTHERS
Applicants
and
THE MINISTER OF
JUSTICE AND CORRECTIONAL
SERVICES
First
Respondent
MINISTER
OF
POLICE
Second
Respondent
KING SABATA DALINDYEBO
LOCAL
MUNICIPALITY
Third
Respondent
J U D G M E N T
DREYER
AJ
[1]
The applicants, contend
that they occupied demarcated land in the Highbury area beyond the
Mthatha River (“the Highbury land”)
where . they had
erected structures to live in. These structures the applicants
contend were demolished on 29 July 2022 by officials
of the first
respondent the Minister of Justice and Correctional Service assisted
by members of the police service employed by
the second respondent
the Minister of Police and officials of the third respondent The King
Sabata Dalindyebo Local Municipality.
[2]
The Highbury land is state
land under the control of the Minister of Justice and Correctional
Services. This is land that was subject
to a lands claim under the
auspices of the Provincial Land Claims Commissioner. This land claim
has been resolved by the land claims
court, the claimants electing to
be compensated. The land remains under the control of the Minister of
Justice and correctional
services. The state retains its ownership of
the Highbury land.
[3]
The
Highbury land has been the subject of prior litigation, where persons
have attempted to assert rights to the land or unlawfully
occupying
the land or disturbing the state’s peaceful possession of its
land.
[1]
The applicants rely on
the decisions of this court in relation to the Highbury land.
[4]
The applicants taking
advantage of the fact that the Highbury land was vacant, decided to
occupy it. The applicants contend they
erected structures on areas
demarcated on the Highbury land. There is no evidence, as to who
demarcated the land, allocating the
applicants the land on which they
erected their structures. The applicants had no right to occupy the
land at Highbury in the manner
that they did.
[5]
The applicants do not live
on the land allocated at Highbury, but at other locations in the
Mthatha area. The applicants were not
in peaceful possession of the
land at Highbury on 29 July 2022.
[6]
The first respondent, has
not entered into the fray.
[7]
The second and third
respondents deny that the applicants had erected any structures by 29
July 2022. The second and third respondents
deny that they demolished
any structures belonging to the applicants on 29 July 2022.
Their contention is supported by photographs
taken on 29 July 2022.
[8]
The applicants seek urgent
interdictory relief, preventing the respondents from demolishing the
structures and ordering the respondents
to rebuild such structures
that were demolished. The applicants seek that these orders operate
as interim interdict pending finalisation
that the conduct of the
respondents in demolishing the structures is declared
unconstitutional and unlawful. In support of such
relief, the
applicants contend that they meet the requirements for an interim
interdict.
[9]
These requirements are
trite: a prima facie right; a well-grounded apprehension of
irreparable harm if the interim relief is not
granted; the balance of
convenience for the granting of the interim relief in the absence of
an unsatisfactory remedy
[10]
The
relief that the applicants seek, though couched as interim relief, is
final relief in effect. This is so as the applicants seek
restitution
of their demolished structures. Consequently, it is necessary for the
applicants to show that they are entitled to
a final interdict.
[2]
[11]
To succeed with final
relief, the applicants must show that they have a clear right.
[12]
The
respondent contend, that whether interim or final relief is sought
the applicants are not entitled to any relief. I agree. The
applicants cannot be granted an interdict as, on these facts, they
cannot found an entitlement to it.
[3]
12.1
The third respondent’s
deponent took photographs of the demarcation of the Highbury land on
29 July 2022. These photographs
are attached to his affidavit. The
photographs clearly show vacant land absent of any structures. The
only thing visible on the
vacant land is a tractor, which appears to
be demarcating areas. The photographs show the presence of members of
the South African
Police Service observing the tractor.
12.2
The photographs support
the respondent’s contentions, that they did not demolish any
structures. There were no such structures
erected on the Highbury
land on 29 July 2022, that could be demolished.
12.3
The
applicants do not live on the Highbury land. This dispenses with any
assertion to lawful eviction under PIE.
[4]
12.4
the applicants have failed
to show that they were either in peaceful possession of the property
at Highbury or that they were spoliated
(to meet the requirement of a
mandament van spolie) nor that they had a prima facie or clear right
to the property to permit their
occupation of the land (to meet the
first requirement of either an interim or final relief).
12.5
The applicants have failed
to show that they have or will suffer irreparable harm.
12.6
The applicants have failed
to show that they meet the requirements of an interdict, whether
interim or final.
[13]
In the result to make the
following order: the application is dismissed
DREYER
AJ
ACTING
JUDGE OF THE HIGH COURT
Representation for
applicants
Counsel:
Adv Nyobole
Instructed
by:
Nyobole
Qaku Attorneys Inc
Representation for
first and second respondents
Counsel:
Adv Msiwa SC
Instructed
by:
State Attorney Mthatha
Representation for
third respondent
Counsel:
Adv Bodlani SC
Instructed
by:
TL Luzipho Attorneys
Date
matter heard:
4 August 2022
Date
matter handed down:
20 September 2022
[1]
Unreported
decisions of Ndzondo AJ in
Mamba
& another v Njemla and other
s
under Case 608/2015 and Boqwana AJ in
Minister
of Correctional Services v Chief Njemla & others
under
Case 1047/2008
[2]
National
Commissioner of Police v The Gun Owners South Africa
2020 (6) SA 69 (SCA)
[3]
Trinity
Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
2018 (1) SA 94
(CC) at 120 C-D
[4]
The
Prevention of Illegal Eviction from Unlawful Occupation of Land Act
1998,
MC
Denneboom Service Station CC v Phayane
2015 (1) SA 54
(CC) @ para [17]