Waterfall Community v Mtyingizane and Others (4181/2019) [2022] ZAECMHC 51 (1 December 2022)

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[2022] ZAECMHC 51
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Waterfall Community v Mtyingizane and Others (4181/2019) [2022] ZAECMHC 51 (1 December 2022)

IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE NO: 4181/2019
In
the matter between:
WATERFALL
COMMUNITY
APPLICANT
A
nd
MZUKISI
MTYINGIZANE
1
st
RESPONDENT
ZIYATSHA
MTYINGIZANE
2
nd
RESPONDENT
NDILEKA
SOKHOMBELE
3
rd
RESPONDENT
NONZWAKAZI
LANGA
4
th
RESPONDENT
MCWERHA
YALIWE
5
th
RESPONDENT
MALIBONGWE
YALIWE
6
th
RESPONDENT
MASIXOLE
MAKHEHLA
7
th
RESPONDENT
WAWI
MAPHINI
8
th
RESPONDENT
THOBELA
MABHIJA
9
th
RESPONDENT
HLANGANI
COMMUNITY
10
th
RESPONDENT
DEVELOPMENT
AND LAND REFORM
11
th
RESPONDENT
STATION
COMMANDER TSOLO SAPS
12
th
RESPONDENT
JUDGMENT
NQUMSE
AJ:
[1]
The applicants seek a prohibitory interdict against the respondents
for an order in
the following terms:
a)
The 1
st
to 10
th
respondents be and hereby interdicted and prohibited from harassing,
threatening and intimidating members of the applicant.
b)
The 1
st
to 10
th
respondents be and hereby interdicted from interfering either
directly or indirectly, with the applicants’ site demarcation
process,
c)
That the 1
st
to 10
th
respondents be ordered to pay the costs of the application jointly
and severally and
d)
The applicants be granted further and/or
alternative relief the court may deem appropriate under the
circumstances.
[2]
In the notice of motion the applicant made it clear that the 11
th
respondent is cited merely as an interested party and thus no order
is sought against it. Similarly, no order is sought against the
12
th
respondent.
[3]
The respondents opposed the application and have raised a number of
defences, ostensibly
alleging a dispute of fact and the following
points in
limine
:
i.
Lack of
locus standi
,
ii.
The application is unauthorized
iii.
Non- joinder of Hlangani Traditional Council and,
iv.
The absence of the requirements for a final interdict.
[4]
The applicants are members of the Waterfall Community (Waterfall) and
their respective
families. They claim to have been residents therein
for generations. The 1
st
to 10
th
respondents against whom the order is sought are residents of
Hlangani Locality in the district of Tsolo in The Province of the
Eastern
Cape. It is to be noted that the 10
th
respondent(s) are the unidentified members of the Hlangani locality
who have associated themselves with the actions of the 1
st
to 9
th
respondents and who are alleged to have acted in concert with them.
[5]
The facts upon which the applicants rely for the relief sought are
set out in the founding
affidavit of the applicants’ deponent
Vuyokazi Majavele. The applicants allege that during the year 2018 in
February of that year,
their community of Waterfall convened a
meeting to consider a request to allocate housing sites for the
benefit of their local younger
generation. After approval of the
request and their resolution to demarcation of sites, they caused
correspondence to be dispatched
to the various structures such as the
Traditional Council and the Ward Councilor informing them of their
decision. (The letters are
attached as “VM3” and “VM4”
respectively). Both the structures referred to above reacted
positively to their correspondence,
thereby supporting the resolution
of Waterfall.
[6]
Furthermore, the applicants
forwarded their resolution to the attention of the 11
th
respondent who advised that their action be publicized in a local
newspaper. This was done through
Isolezwe
Newspaper (copy of the advert was attached and marked “VM5”).
[7]
In a subsequent meeting of
Waterfall which was convened for purposes of allocating and
demarcating
the sites, members of Hlangani led by the 1
st
to 9
th
respondents arrived and disrupted their meeting, demanding a halt of
the demarcation on the basis that the land in question belongs
to
their community. In support of their stance to prevent the applicants
from continuing in their action to demarcate sites, the
respondents
declared a boundary dispute and resolved to engage the services of
the 11
th
respondent.
[8]
The 11
th
respondent carried out inspections and surveys of the land in
question and produced a survey report (the report) which it sought
to
present in a meeting of both groups. The survey report was attached
as “VM6”. According to the report both Hlangani and
Waterfall
were initially demarcated as farms as far back as the late
1800’s ,  the former being Farm 68 and the latter being
Farm 69
within the district of Tsolo. Unhappy with the result of the
report the respondents did not accept the boundary beacons as
explained
by the Surveyor-General and chose not to continue their
participation in the report deliberations. Nevertheless, they were
advised
that in the event they wish to dispute or contest the
outcomes of the report they are entitled to commission their own
independent
survey, something they failed to do. Instead they caused
a letter through their attorneys to be dispatched to the applicants
claiming
that they were being threatened by members of the applicant,
(the letter from the respondents’ attorneys was attached as
“VM7”).
[9]
The applicants’ deponent denies that there were threats
emanating from their community
which were directed to the respondents
except to invite the respondents’ community to a meeting in
order to discuss the outcomes
of the report and to clear the
misapprehension that Waterfall is subject to the control of Hlangani
locality. She further stated
that it became apparent that the
respondent will stop at nothing in their threats to disrupt the site
demarcations by the applicants.
Their conduct escalated informing the
applicants that they will engage in violent means should it become
necessary.
[10]
The applicants’ deponent further stated that
notwithstanding making several reports to members of the South
African Police Service that did not deter the respondents from
issuing threats to the applicants. Notwithstanding   a
damage
caused to a vehicle operated by an official of the 11
th
respondent, there were no arrests made. All attempts to resolve the
matter amicably and through the involvement of the law enforcement
authorities yielded no positive results.
Pursuant
the advice from their attorneys and to avoid the possibility of
members from both communities taking the law into their hands,
the
applicants decided to approach this court for relief. Both Novali
Maphini and Noxolo Majavelo deposed to confirmatory affidavits
in
support of the founding affidavit.
[11]
The case of the 1
st
to 9
th
respondents is set
out in the affidavit of Mzukisi Mtyingizane (1
st
respondent) who refers to himself as the chairperson of Hlangani
Traditional Council and a traditional leader
(Inkosana
) of
Hlangani Administrative Area which comprises of the following areas :
(i) Hlangani Location
(ii) Boyce Location
(iii) Lithemba Location
(iv) Sithandathu Location
(v) Waterfall Location.
He
avers that he is entitled and authorized to oppose the application by
virtue of his status as “
Inkosana”
and has been duly authorized by the 2
nd
to the 9
th
respondents who are Traditional Councilors of his Traditional
Council.
[12]
The respondents’ deponent alleges that
Waterfall is not a standalone entity or a traditional community that
is recognized in terms of section 5 of the Traditional Leadership and
Governance Act
[1]
it is part of
the five localities that constitutes Hlangani Administrative Area.
He
concedes that some of the events that are mentioned as a background
in his affidavit took place before he was born and were narrated
to
him by elders who were present when they unfolded. Whilst they may
appear as constituting hearsay, he contended that the 2
nd
respondent who was amongst the elders who were present at the time
has deposed to a confirmatory affidavit. He further contended
that
the hearsay evidence that appears in the background sketched out in
his affidavit ought to be admitted in terms of section 3(b)
of the
Law of Evidence Amendment Act
[2]
.
[13]
According to the respondents’ deponent
Hlangani Administrative Area has been in existence since 1945.
However,
due to its nominal population from then up to the late
1970’s a vast area of Waterfall was not occupied but used for
grazing purposes.
It is further contended
by respondents’ deponent that at some stage the then government
requested to use a portion of Waterfall
Location for a temporal
forestation purposes and for the construction of temporal shelters
for its employees.
After
the then government no longer needed the use of the land it returned
it to the administrative authority of Hlangani.
[14]
Subsequently, four families he refers to as
refugees and who are the forefathers and ancestors of most residents
of Waterfall were accommodated on the disused portion of the land at
the instance of their district magistrate Mr. Drakeitas with
the
approval of the
Inkosana o
f
Hlangani, a Mr. Matole. Those families are, Wawi Nolusu and his
brother Siyonto Majavele who fled from Xhokonxa- Kwa Gcina
,Tyokolwana
Tsibiya family and Mahlubulo Gceli from Mjika.
According
to the respondents’ deponent the above families regarded
themselves as the subjects and community members of Hlangani
and
participated in its community activities. Even their descendants
including those listed in “VM2”annexed to the founding
affidavit
are fully aware that Waterfall is under Hlangani and had
submitted themselves under its authority and traditional council.
Their
recent conduct to extricate themselves from Hlangani is of
recent origin to subvert the authority of Hlangani Traditional
Council
which resorts under Phungulelo Traditional Authority. When
the Waterfall community wanted to align themselves with Bovube
Traditional
Authority they were allowed to do so on condition that
they leave behind the land in Waterfall since it belongs to Hlangani.
[15]
In amplification of the points raised limine, the
respondents’ deponent alleged that the Waterfall community
is
not a legal entity which qualifies as a traditional community which
is recognized under the applicable section of the Traditional
Leadership and Governance Act referred to above. On this ground the
application ought to be dismissed with costs. He further contended
that nowhere did the applicants’ deponent allege in its
founding affidavit that she was duly authorized to institute these
proceedings
[16]
The respondents further contended that the 1
st
to 9
th
respondents who are councilors of the Traditional Council were acting
in their official capacity when they stopped the applicants
from
carrying out their decision to demarcate the land. In light thereof,
so it was contended, the council ought to have been joined
for it has
a direct and substantial interest in the affairs and land matters
that affect Hlangani.
The respondent further
concluded that the applicant failed to establish the requirements for
a final interdict in that,
(a)
The applicants did not establish a clear right entitling them to
demarcate sites,
(b)
The applicants have the remedy to approach the
Inkosana
to resolve the feud between the two localities and if the issue
remains unresolved, they are entitled to approach the “
Inkosi
”
(senior traditional leader) and finally the “
Ikumkani
”
(King).
[17]
As a final attack on the application the
respondents contend that there is a dispute of fact which was glaring
and foreseeable to the applicant relating to the applicants’
authority to deal with the Waterfall Land, as a result of which they
invoked the services of a land surveyor. The respondents’
deponent further contends that when launching this application, the
applicant
should have realized the existence of a serious dispute of
fact, incapable of resolving on the papers.
[18]
The respondents’ deponent further contends that
the conduct of the 11
th
respondent of advising the applicants to advertise their matter on a
newspaper amounts to poking its nose in the internal affairs
of
Hlangani and invites the court to show its displeasure on a Mr.
Phakade who is one of the officials of the 11
th
respondent. He further alleged that Chief Zipho Mchana of Masizakhe
Local Traditional Council has no business over Waterfall. Similarly
councilor Sophangisa of Ward 4 knows that meetings for issues
relating to the development of Hlangani are held at Hlangani Great
Place and are attended by Waterfall.
[19]
The respondents do not deny that they stopped the
applicants from carrying out their decision to demarcate
sites since
the applicants are their subjects. They however, deny that they
engaged the services of the 11
th
respondent, instead they question the report of the Surveyor General
which they allege was based on outdated colonial maps which
do not
take the country’s recent changes.
Further
their dissatisfaction in the report stems from the surveyor’s
intention to create an impression that Waterfall is a separate
entity
from Hlangani when it is not. Thereby raising false hopes and is
fueling insurgency tendencies on the part of the applicants.
[20]
The respondents deny that they remained idle, they
contend that they reported the conduct of the applicants
referred to
as insurgents, to COGTA and to the Kingdom of
Amampondomise
.
However, it must be noted that this letter that is claimed by the
respondents’ deponent as proof of their assertion has not been
attached to the answering affidavit.
[21]
The respondents’ deponent set out the process of demarcation of
sites as follows. That the process
starts with the Headman after
receiving a   request, The request is referred by the
Headman to
Inkosana
who
upon receipt of the request from the Headman will refer his
recommendation to
inkosi/
Senior Traditional Leader who after consideration and approval by the
Traditional Council will refer it to the Department of Rural
Development and Land Reform to assist with the demarcation. The
respondents admit that the applicants are entitled to conduct their
affairs in a lawful manner, therefore deny that they harassed,
threatened or intimidated the applicants. If that was the case, the
applicants ought to have attacked a police CR number as proof that
their threats were reported.
[22]Daluhlanga
Thomas Mtyingizana deposed to a confirmatory affidavit in
which    he states that
he is one of the elders of
Hlangani referred to in the answering affidavit and he is one of the
elders who narrated the events to
the respondent’s deponent
since he was present at the time the events were unfolding. He
confirms the settlement in Waterfall described
in the answering
affidavit. Furthermore, that Waterfall area has been always part of
Hlangani with its residents as subjects under
the authority of
Hlangani.
[23]
In reply the applicants’ deponent denies that Waterfall
location belongs to Hlangani Administrative
Area. The applicants
contend further that the settlement of the Waterfall area took place
much earlier than is alleged in the respondents
answering affidavit.
The settlement at Waterfall by the four pioneering families mentioned
in the answering affidavit came about
as those families decided to
migrate to greener pastures for their livestock and a more habitable
terrain for their families.
The
applicants deny that they occupied the area as a result of being
chased away from their previous settlement. The Government’s
Forestry project which was part of a broader project of the Nqadu
Forest which covered both Waterfall and Hlangani areas came to
an
end. It is further denied that Waterfall area was returned to
Hlangana at the expiration of the project.
[24]
The applicants insist that as a properly established
community of residents who share the same interest in the development
and upliftment of their community, they have the necessary locus
standi to institute these proceedings. They further contend that
the
point in limine that they do not have the authority should be
dismissed with costs since it is made clear in the founding affidavit
that the deponent was authorised by a meeting of the community and
that is reflected in its minutes.
[25]
The applicants further contend in the reply that there is no entity
known as Hlangani Traditional
Council. This is borne out in the
respondent’s answering affidavit where in it is alleged in
paragraph 1, thereof that Hlangani
falls under the authority of
Phungulelo Traditional Council with no explanation or a certificate
of recognition as to how can there
be a traditional council which at
the same time falls under the authority of another. For those reasons
there was no necessity to
join Hlangani Traditional Council in these
proceedings.
The
applicants further contend that it has established a clear right and
denies existence of a dispute between the parties that requires
the
intervention by a Traditional Council. It further refuses the
allegation of the dispute of facts as alleged by the respondents.
The
applicants insist in their contention that Waterfall exists
separately from Hlangani
[26]
The applicants further raised the point that the respondents have
despite their unhappiness with
the report of the Surveyor General
failed to take steps to challenge it instead the respondents, so it
was contended, whilst questioning
the report where it relates to
Waterfall, they do not question it when it pertains to Hlangani.
[27]
The essence of the application is for the granting of a final
interdict. It therefore follows that
it may only be granted if the
applicant succeeds in establishing the requirements for a final
interdict. Those requirements are crystallized
in Setlogela vs
Setlogelo
[3]
as the following:
(i)  a clear right
(ii) Injury actually
committed or reasonably apprehended and
(iii) The absence of
similar protection by any other remedy.
Regarding
the first requirement it follows that a court must be satisfied that
the right to be protected is a clear right. This requires
of the
applicant to identity such right and prove its existence.  The
existence of a right is a matter of substantive law.
[28]
In
Plascon-
Evans Paints (Pty) Ltd
[4]
the legal position regarding final interdicts was stated as follows:
“
It
is correct that where proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether it
be an
interdict or some other form of relief, may be granted if those facts
covered in the applicant’s affidavits which have been
admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order.
The
power of the Court to give such final relief on the papers before it
is however, not confined to such a situation. In certain
instances
the denial by the respondent of a fact alleged by the applicant may
not be such as to raise a real, genuine or bona fide
dispute of fact
(See in this regard
Room Hire Co (Pty)
Ltd v Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 (T) at 1163-5,
Da Mata v Otto No 1972(3) SA 858 (A) at 882
D-H).
[29]
Regarding a real, genuine or bona fide dispute of fact in
Wightman
J W Construction v Headfour (Pty) Ltd
[5]
Heher JA stated:
“
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports whether that
right is
clearly established is a matter of evidence. In order to establish a
clear right an applicant has to prove on a balance
of probability the
right which he seeks to protect (See
Nienaber
v Stuckey 1946 AD at 1053-40
)”
[30]
The applicants’ deponent has positively identified herself as a
resident of Waterfall. She together
with members of the community of
Waterfall have an interest in the land of Waterfall which was
previously occupied by their forefathers
and left to them for their
use.
The
applicants have proved without any doubt that they have established
themselves as a community that share the interest of developing
the
Waterfall Community. What I gleaned from the respondents objection to
the applicants right to the land is the activity to demarcate
the
land but not their right to occupy it, though it is patently clear
from the evidence that the applicants enjoy occupational rights
in
their land of Waterfall.Nonetheless deserving of protection albeit
not a better right as envisaged in the Constitution
[6]
.This
is further evidenced in the historical demarcation of their
localities of Waterfall and Hlangani which were identified as per
the
report of the Surveyor – General as neighboring farms 68 and 68
respectively. I am therefore satisfied that the applicants
have
succeeded in identifying their right to the land they occupy, and
have proved the existence thereof.
[31]
The respondents have not denied that their purpose to attend the
gathering of the applicants was
to stop them in their activity of
demarcating sites. They characterized the applicants’ conduct
as unlawful. However, in so doing,
they did so at the risk of
creating tensions that would play out. They nevertheless chose to do
it their own way without involving
any legal process. That conduct of
the respondents lends credence to the averments that they went to the
applicants’ meeting with
the purpose of disrupting it
regardless of any conflict or violence that was likely to break out.
The injury alleged by the applicants
and their apprehension therefor,
more particularly if regard is had to the description given to them
of being refugees is a real
apprehension. I am therefore satisfied
that the applicants have met this second requirement for an
interdict.
[32]
The respondents suggest that the applicants’
other remedy was to escalate their differences to the Senior
Traditional Leader up to the level of the King. What however is
lacking in their submission is why they never took steps to invite
the applicants to a meeting of the Traditional Council or the Senior
Traditional Leader or better still to report the conduct of
the
applicants to the King for purposes of intervention. Instead, the
respondents laid the onus to do so, notwithstanding the claim
that
the applicants are their subjects, at the doorstep of the applicants.
In light thereof the applicants cannot be faulted for
approaching
this court for relief. The respondents’ defence on this aspect
has no merit and falls to be dismissed. Similarly, the
points in
limine that the applicants have not met the requirements for final
interdict falls to be dismissed.
[33]
Relying on the authorities above and what was
stated in
Rippol Dansa v Middleton
and Others,
that a hallow denial or a fanciful untenable version does not create
a dispute of fact. The denials of the respondents’ in the
attempt to avoid the granting of the relief sought are far –
fetched and untenable. They cannot be considered as genuine to
disqualify
the court from determining the application on the papers
before it.
[34]
The next issue that can be disposed of quickly is the issue of
the non- joinder of Hlangani Traditional Council.
In
Absa
Bank Ltd v Nande
[7]
the test for non-joinder was set out by the Supreme Court of Appeal
as follows:
“
[10]
The test whether there has been non-joinder is whether a party has a
direct and substantial interest in the
subject
matter of the litigation which may prejudice the party that has not
been joined. In Gordon v Department of Health, Kwazulu-Natal
it was
held that If an order or judgement cannot be sustained without
necessarily by prejudicing the interest of third parties that
had not
been joined, then those third parties have a legal interest in the
matter and must be joined “[footnotes omitted In
Judicial
Services Commission and Another v Cape Bar Council and Another
[8]
the Court held:
“
It
has now become settled law that the joinder of a party is only
required as a matter of necessity –as opposed to a matter of
convenience.
If the party has a direct and substantial interest which
may be affected prejudicially by the judgement of the court in the
proceedings
concerned (See
Bowring NO v
Vrededorp
Properties
CC 2007(5) SA 391 (SCA) para 21
). The
mere fact that a party may have an interest in the outcome of the
litigation does not warrant a non- joinder plea. The right
of a party
to validly raise the objection that other parties should have been
joined to the proceedings, has thus been held to be
a limited one”.
[35]
The first hurdle faced by the respondents in their
submission for a non-joinder of Hlangani Traditional Council
is that
applicants do not seek any relief against the Traditional Council. On
that score alone I am unable to find in what way will
the Traditional
Council be affected prejudicially by the judgement in these
proceedings.  Further, nowhere in its answering
affidavit is it
shown by way of proof that the actions of the respondents were
mandated by the Traditional Council and were acting
on its behalf.
This, the respondents could have done by producing a minute or
resolution taken by the Traditional Council and their
terms or
conditions of what was expected of them when they find the applicants
demarcating sites as per such a resolution.
[36]
Instead, the court finds it difficult to understand, why the
Traditional Council which is a legal
entity will not exhaust legal
remedies where its rights are adversely affected by the conduct of
the applicants but choose to send
its councilors to engage in any
environment that was likely to be hostile and result in a conflict
without the assistance of law
enforcement agencies. In its heads of
argument, the respondents relied on
Matjhabeng
Local Municipality v Eskom Holdings Ltd
[9]
where the court held:
“
The
law on joinder is well settled. No court can make findings adverse to
any person’s interest without that person first being
a party
to the proceedings before it”.
[37]
Whilst it may be so that the Traditional Council
may have an interest in the litigation against its counsellors,
such
interest in my view is a limited one. My view is further bolstered by
the conduct of the respondents who chose to instruct an
attorney in
their personal capacity to dispatch a letter in which they were
stopping the applicants from threatening them or inviting
them to
their meetings. For sake of completeness, I reproduce the letter
annexed as “VM7” in its entirety and it reads:
“
THE
HEADMAN
Waterfall
Locality
Hlangani
Administrative Area
TSOLO
14 MAY 2019
Dear Sir
RE:
HLANGANI ADMINISTRATIVEAREA, TSOLO BOUNDARY DISPUTE.
We refer to the above
subject.
We are acting on the
instructions of our clients Hlangani Community.
We are instructed by
our client to address this letter to you as we hereby do.
Our clients have given
us copies of your letters addressed to them and inviting them into
meetings at Waterfall on the 27
th
April 2019 and 11
th
May 2019 respectively to respond and reply.
Our clients have
informed us that the dispute of authority and accountability of
Waterfall locality and Hlangani Administrative Area
has not been
resolved up to this stage and therefore you do not have authority to
invite them to your locality as your subjects instead
you are their
subject.
Kindly therefore
refrain from inviting our clients and engaging yourself into unlawful
activities in and around Waterfall locality
until the dispute is
resolved.
Kindly further refrain
from threatening our clients and the anticipated demarcation and
development of the vacant pieces of land situated
in and around
Waterfall locality.
We accordingly hope
the above is clear for your co-operation in this regard.
Yours Faithfully
M.T.
Mlola (Mr)”
[38]
It is worth noting that nowhere in the letter is
there any reference made to Hlangani Administrative Council,
nor is
there any reference made to iNkosana (Traditional Leader of Hlangani
or iNkosi (Senior Traditional Leader of Hlangani). The
letter is
unambiguous that the clients of the attorney are the Hlangani
summoned to iNkosana /iNkosi (Traditional Leader or Senior
Traditional Leader) as the first port of call, it would reasonably be
expected that any litigation that arises out of the misbehavior
or
disloyalty by Waterfall Community would be at the instance of the
Traditional Council and not individual counsellors acting in
their
personal capacities. The plausible explanation for the absence of the
Traditional Council or its leader in the instructions
given to the
attorney is that they are not a party to the activities of the
respondents:
[39]
I am therefore not convinced that the respondents were acting in any
other capacity other than their
personal capacities. There is
therefore no merit in their contention and submission regarding the
non-joinder of the Traditional
Council.
[40]
In conclusion I find that the applicants have
succeeded to establish all the requirements for the granting
of a
final interdict. They have a protectable right to the land they
occupy. A right acquired from their forefathers from time immemorial.
I am further satisfied that the respondents’ conduct is
unlawful and illegal, deserving of a court injunction. Their conduct
is
best described as bullying and an invasion of the applicants’
right to their property which amounts to taking the law into their
own hands.
[41]
In the result the following order will issue:
1.
That the 1
st
to 10
th
respondents are interdicted and prohibited from harassing,
threatening and intimidating members of the applicant.
2.
That the 1
st
to 10
th
respondents are hereby interdicted from interfering either directly
or indirectly through incitement of their members or supporters,
with
the applicants’ site demarcation process at Waterfall
Community.
3.
That the 12
th
respondent be and hereby authorized and directed to assist the
Sheriff of the Court in the implementation and execution of the order
of this court.
4.
That the 1
st
to 10
th
respondents be and hereby ordered to pay the costs of this
application jointly and severally, the one paying the other to be
absolved.
M.V NQUMSE
ACTING
JUDGE OF THE HIGH COURT
Appearances
Attorney
for the Applicants
:           Mr Z.
Dotwana
Instructed
by
:
Legal Aid South Africa
MTHATHA
Counsel for the
Respondents
:           Mr. M.C
Manana
Instructed by
:
State Attorney
EAST
LONDON
Date of
hearing
:
06 October
2022
Date
of delivery
:
01 December
2022
[1]
Act
4 of 2005, Eastern Cape.
[2]
Act
45 of 1988.
[3]
Setlogelo v Setlogelo
1914 AD 221
at 227.
[4]
Plascon
– Evana Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
Limited
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635.
[5]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 13.
[6]
See
section 25 (6) of the Constitution of the Republic of South Africa.
[7]
20264/2014
[2015] ZASCA 97
(1 June 2015)
[8]
2013
(1) SA 170
(SCA) para 12.
[9]
2018
(1) SA 1
(CC) para 33E-F.