About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2019
>>
[2019] ZAECMHC 58
|
|
Dambuza and Others v Mvandaba and Others (5899/2018) [2019] ZAECMHC 58 (15 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. 5899/2018
In the matter between:
SANDI
DAMBUZA
1
st
Applicant
MLAMLI
KWATSHA
2
nd
Applicant
PETER
DAMBUZA
3
rd
Applicant
LWAZI
NGXABANI
4
th
Applicant
ABONGILE
SIKITI
5
th
Applicant
SOBHUZA
MSIKINYA
6
th
Applicant
VELILE VINCENT
DAMBUZA
7
th
Applicant
THANDUXOLO
GODLO
8
th
Applicant
DODO
MSIKINYA
9
th
Applicant
SANDILE
MKHUZANGWE
10
th
Applicant
And
MTHUNZI
MVANDABA
1
st
Respondent
MBASA
SIPHUKA
2
nd
Respondent
SIKHUMBULE
XABANISA
3
rd
Respondent
VUYOLWETHU
HANI
4
th
Respondent
MR
DYUBELE
5
th
Respondent
OTHER PERSONS WHOSE
IDENTITIES ARE TO THE
APPLICANTS UNKNOWN AND
WHO HAVE ATTEMPTED
OR ARE THREATENING TO
UNLAWFLLY OCCUPY THE
COMMONAGE OWNED BY THE
APPLICANTS,
BUTTERWORTH
Other Respondents
JUDGMENT
JOLWANA J
[1] The applicants
approached this court on an urgent basis and a rule nisi was issued
with an interim interdict on 13 November
2018. The interim
interdict is couched in the following terms:
“
2.
A Rule Nisi is hereby issued directing the respondents to show cause,
if any, before this Honourable Court on 11 December 2018
at 09:30 or
so soon thereafter as the matter may be heard why a final order
should not be granted in the following terms:
2.1The respondents are
interdicted and restrained from entering upon or commencing to occupy
and/or permitting to be occupied on
their behalf any part or portion
of the immovable property of the applicants, being the Commonage
owned by the applicants (“
hereinafter referred to as the
immobavle property”),
which covers a large area stretching
from the St Johns Church and Nxusani B & B on the North,
bordering the Walter Sisuslu
University (WSU) and King Hintsa FET on
the South; stretching from the Roman Catholic Church, along Cuba,
Mcubakazi, Vuli Valley
and Extension 15 on the East and bordering on
the N2 National Road on the West;
2.2 The respondents are
hereby
interdicted
and
restrained
from commencing
and/or continuing to erect and/or occupy and/or permit to be erected
or occupied any structure or fencing on the
abovementioned immovable
property;
2.3 The respondents pay
costs of the application.
3. It is ordered that the
rule nisi
issued in the terms set out in paragraphs 2.1 and
2.2 above shall operate as an
interim interdict
and
mandamus
pending the return date of these proceedings.”
[2] They now seek
confirmation of the
rule nisi
.
[3]
The legal position regarding final interdicts is that the court can
only grant the final relief if the facts alleged by the
applicants
which are admitted by the respondents in the answering affidavits
together with the facts alleged by the respondents
justify the
granting of such relief. In
Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1]
this legal position was clarified and developed by Corbett JA as
follows:
“
It
is correct that, where in 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
averred 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 882D-H).
If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination
under Rule
6(5)(g) of the Uniform Rules of Court (cf
Petersen v Cuthbert &
Co Ltd
1945 AD 420
at 428; Room Hire case supra at 1164) and the
Court is satisfied as to the inherent credibility of the applicant’s
factual
averment, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines
whether
the applicant is entitled to the final relief which he seeks
(see eg.
Rikhoto v East Rand Administration Board and Another
1983(4) SA 278 (W) at 283E-H). Moreover, there may be
exceptions to this general rule, as, for example, where the
allegations
or denials of the respondent are so far–fetched or
clearly untenable that the Court is justified in rejecting them
merely
on the papers.”
[4]
This matter is, in essence for the consideration of the granting of a
final interdict and therefore the application for the
confirmation of
the
rule
nisi
can only be granted if the applicants establish the requirements for
a final interdict as set out long ago in
Setlogelo
v Setlogelo
[2]
.
In
Setlogelo
v Setlogelo
Lord De Villiers CJ stated the requirements for final interdicts as
follows:
“
So
far as the merits are concerned the matter is very clear. The
requisites for the right to claim an interdict are well known,
a
clear right, injury actually committed or reasonably apprehended, and
the absence of similar protection by any other ordinary
remedy.”
[5] The applicants are
residents of Zazulwana Administrative Area in Butterworth and all of
them claim to be owners and lawful occupiers
of a certain piece of
land at Mcubakazi Township, Zazulwana Administrative Area in
Butterworth. They claim to hold title
to the land by virtue of
deeds of transfer and/or certificates of occupation. The 1
st
to 4
th
respondents, who are the only respondents opposing
this application are also from the same area of Mcubakazi save for
the 4
th
respondent who resides at Scanlen Street in
Butterworth and save for the respondents referred to as other
respondents whose details
are unknown. The latter are described
as other persons whose identities are to the applicants unknown and
who have attempted
or are threatening to unlawfully occupy the
commonage owned by the applicants. I shall henceforth
collectively refer to these
other respondents as the 6
th
respondent for the sake of brevity.
[6] The applicants allege
that they became aware of the 1
st
to 4
th
respondents and the 6
th
respondent’s activities of
clearing bushes in their land, demarcating sites, others driving
poles into the ground to mark
boundaries for sites on or about the 20
October 2018. They attempted to reason with the respondents and
to seek police assistance
but all was in vain. It was because
of these alleged activities that the applicants sought and obtained
the
rule nisi,
with an interim interdict which they now seek
to have confirmed.
[7] The 1
st
to
4
th
respondents, in a rather terse answering affidavit,
deny all these alleged activities of demarcating or threatening to
demarcate
sites on that land, driving poles into the ground or even
being on the land in question on or about that day. They allege
that they were found by the applicants and/or their representatives
as well as the police in an adjacent park belonging to the
Municipality. They were there to have a meeting to discuss
societal issues including lack of land in the township.
[8] The respondents are
surprisingly vague about the geographical location of this municipal
park in relation to applicants’
land. I do not see how
the applicants would confuse people who were driving poles into the
ground, using a tractor to demarcate
sites and clearing bushes with
the respondents who were having a meeting in an adjacent municipal
park. This, in circumstances
in which the applicants know the
1
st
to 4
th
respondents and even know their
homes. I accept the inherent credibility of the applicants’
factual averments.
It follows that I must reject the
respondents’ denials which do not raise a real, genuine or
bona
fide
dispute of fact and are clearly far-fetched and even
fictional, to put it mildly.
[9] In his heads of
argument and in court, counsel for the 1
st
to 4
th
respondents made the following submission:
“
On
a balance of probabilities, and in light of no evidence provided by
applicants and the denial thereof of such invasion by respondents,
there is no credibility on the applicant’s allegations.
Applicants only made bold allegations with no evidence to back
them.”
[10]
This brings me to the
Plascon-Evans
rule on motion proceedings and on my understanding thereof I must
decline the invitation to determine this matter on probabilities.
This rule was eruditely further summarized as follows in
National
Director of Public Prosecutions v Zuma
[3]
and I do not think that I need to say more:
“
[26]
Motion proceedings, unless concerned with interim relief are all
about resolution of legal issues based on common cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the Plascon-Evans
rule that where in motion proceedings disputes of fact arise
on the
affidavits, a final order can be granted only if the facts averred in
applicant’s (Mzuma’s) affidavits, which
have been
admitted by the respondent (the NDPP), together with the facts
alleged by the latter, justify such an order. It
may be
different if the respondent’s version consists of bold or
uncreditworthy denials, raises fictitious disputes of fact,
is
palpably impossible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the papers.
The
court below did not have regard to these propositions and instead
decided the case on probabilities without rejecting the NDPP’s
version.
[27] The court below
imposed an onus on the NDPP to prove a negative. This appears
from the finding that it was not convinced
that [Mr Zuma] was
incorrect in relation to political meddling (para 216). It
reasoned that the question whether there had
been political meddling
fell within the peculiar knowledge of the NDPP and was difficult for
Mr Zuma to prove; and so, it held,
less evidence would suffice to
establish a prima facie case (para 168-169). This rule of
evidence namely that if the facts
are peculiarly within the knowledge
of a defendant the plaintiff needs less evidence to establish a
prima
facie
case, applies to trials. In motion proceedings the
question of onus does not arise and the approach set out in the
preceding
paragraph governs irrespective of where the legal or
evidential onus lies. In applying the ‘rule’ the
court omitted
to determine whether the NDPP had failed to adduce
evidence on the particular issues; it used the ‘rule’ in
spite of
evidence to the contrary, and it did so in instances where
no answer was called for because the allegations were either not
incorporated
into the founding affidavit or were inadmissible.
Finally, the court failed to have regard to another principle, namely
that
the more serious the allegation or its consequences, the
stronger must be the evidence before a court will find the allegation
established.”
[11] For reasons that are
not altogether clear the 1
st
to 4
th
respondents
did on the one hand submit that their opposition to this application
is only because there was an order for costs made
against them in the
interim relief and therefore oppose this application to prevent the
financial implications of the said costs
order. On the other
hand these respondents opposed the application on the merits.
This is how this averment is made
in the answering affidavit:
“
5.3
Be that as it may as first, second, third and fourth respondents, we
are opposing this application in so far as it seeks a costs
order
against us, and we state that there is no reason why a costs order is
necessary against us. In particular, on reading
the founding
papers, no case for a costs order is made against us in the event we
do not oppose the application.
5.4 Therefore, in the
main, the costs order sought against us, has (My Emphasis) caused
first, second, third and fourth respondents
and myself to oppose this
application to an extent that it has financial implications against
us albeit we oppose the proceedings
or not.
5.5 Below herein, I also
deal with the merits of this matter to an extent that they have
implications on us, and to show that in
any event applicants have
failed to prove their case for a final interdict that they seek.
5.6 Further, in making
out a case for the above honourable court to consider the costs order
sought against us, I am advised that
it is also prudent to
demonstrate that in any event applicants are not entitled to the
interdict sought against us for the following
reasons:
5.6.1 Parties with
substantial interest have not been cited.
5.6.2 Failure to prove
requisites for a final interdict.”
[12] Despite these
averments it was submitted during argument that the opposition was
now not so much on how the respondents should
not be held liable for
costs but on the merits as well. How the opposition should be
on the merits when clearly in the answering
affidavit the main reason
cited for the opposition is costs is difficult to understand.
[13] Even on the issue of
costs there are two fundamental flaws in the above submission.
The first one is that clearly paragraph
2.3 of the
Rule Nisi
was deliberately not made part of the interim relief. The basis
on which it is suggested that costs were awarded against
these
respondents is without merit.
[14] The second flaw is
in the submission that the applicants’ papers were couched in
such a manner that whether the respondents
opposed the application or
not a costs order was sought against them. This submission
seems to be based on the fundamental
mistake that a respondent who
does not oppose an application may not be ordered to pay costs of the
said application. In
all applications as it is in civil
litigation in general the general rule is that costs follow the
results. The exceptions
to this general rule are unlimited and
those exceptions are based on another general rule which is that a
court has a discretion
on how and when to award costs against any of
the parties.
[15]
In
Intercontinental
Exports (Pty) Ltd v Fowles
[4]
Smalberger JA stated the legal position as follows:
“
[25]
The basic rule is that, statutory limitations apart, all costs awards
are in the discretion of the court (Kruger Bros &
Wasserman v
Ruskin
1918 AD 63
at 69, a decision which has consistently been
followed). The court’s discretion is a wide, unfettered
and equitable
one. It is a facet of the court’s control
over proceedings before it. It is to be exercised judicially
with due
regard to all relevant considerations. These would
include the nature of the litigation being conducted before it and
the
conduct of the parties (or their representatives). A court
may wish, in certain circumstances, to deprive a party of costs,
or a
portion thereof, or order lesser costs than it might otherwise have
done as a mark of its displeasure at such party’s
conduct in
relation to the litigation. Is it to be precluded by agreement
from doing so? A court should not be obliged
to give its
imprimatur to an order of costs which, in the circumstances, it
considers entirely inappropriate or underserved.
In my view, as
a matter of policy and principle, a court should not, and must not,
permit the ouster of its discretion because
of agreement between the
parties with regard to costs.”
[16] The 1
st
to 4
th
respondents hoist their case on the merits on two
main legal arguments. The first one is that parties with
substantial interest
are not cited in these proceedings; the second
one is that the requisites for a final interdict have not been
established.
The third point though not raised in the answering
affidavit directly but is raised in the heads of argument is that the
applicants
have no
locus standi
to launch these proceedings.
The applicant’s
lack of
locus standi
[17] Briefly, the 1
st
to 4
th
respondents’ challenge on this ground is that
even though in the founding affidavit the applicants have alleged
ownership
of the property the documents attached are permissions to
occupy (the PTOs) granted over 100 years ago in terms of section 11
of
Proclamation No. 227 of 1898. Those PTOs are not
automatically transferrable to the descendants of the original
holders.
Therefore ownership was not proved, and therefore the
ownership of the land in question vests on the state, so went the
submissions.
[18] The respondents’
contentions in regard to
locus standi
are somewhat
contradictory. Firstly, the respondents do not dispute the
applicants’ historical familial ties to the
land. All
they are saying is that the rights which accrued to the original
holders of the PTOs were not and are not automatically
transferrable
to the applicants. This is not to say that there are no rights
accruing to the descendants of the original
grantees of the PTOs.
The point being made by these respondents, as I understand it, is
that ownership rights are not automatically
transferrable.
[19] What the respondents
do not deal with is how the applicants lost their rights to the land
which should ordinarily accrue to
them by virtue of them being
descendants of the original holders of those rights. Secondly,
the fact that ownership rights
have not yet been transferred as
alleged more than a 100 years later, even if it is true, does not
mean that such rights should
be automatically lost to the descendants
of the holders of the PTOs or that they can never be transferred if
one accepts that they
are not automatically transferrable but are
transferable nonetheless.
[20]
This court has had occasion to deal with an important part of this
country’s relics of our colonial legacy as it relates
to land.
In
Nandipha
NO v Irfani Traders cc
[5]
Kunju AJ quoted certain provisions of section 25 of the
Constitution
[6]
as follows:
“
[31]
Section 25(1), (5), (6) and (9) of the Constitution of the Republic
of South Africa Act 108 of 1996 (the Constitution) provides
thus:
25(1) no one may be
deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation
of property.
(5) The state must take
reasonable legislative and other measures within available resources
to foster conditions which enable citizens
to gain access to land on
an equitable basis.
(6) A person or community
whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices
is entitled, to the extent provided
by an Act of Parliament either to tenure which is legally secure or
to comparable redress.
(9) Parliament must enact
the legislation referred to in subsection 6.”
[21] He went on to make
the following observations with which in principle I am in respectful
agreement:
“
[46]
Through my engagement with this matter few observations have occurred
to me. The following are worth recording, namely:
(a)
It is concerning, if not disturbing, that
the majority of rural communities are still not the owners of their
land. Like the
applicant they rely on the mercy of the Minister
for Rural Development and Land Reform by signing the Interim
Protection Act for
them to remain in occupation of their land
legally.
(b)
No doubt such Communities are not aware
that they are not permanent owners of the land they occupy.
(c)
Interestingly, the provisions of section
25, (5), (6) and (9) of the Constitution are there for the Parliament
to correct the anomalies
created by apartheid laws.”
[22] The essence of the
respondents’ argument is that because government may have
failed since the advent of the Constitution
to upgrade tenure rights
of the applicants, the applicants have no
locus standi
to
protect the land that their families have owned and used under
insecure tenure for over a century. The respondents are
with
respect, either woefully oblivious of this country’s colonial
and apartheid history as it relates to land or are disingenuous
in
the extreme. This is more so that they are not claiming to have
a better tittle to that land than the applicants have
nor are they
claiming that the land has since been transferred to them. I
have no doubt that persons in insecure tenure like
the applicants do
have a constitutional right to protect their land rights from being
usurped by others or the state for that matter.
Even a cursory
reading of section 25 of the Constitution makes that clear.
[23] At the risk of
digressing from the issues in this matter I do need to make certain
observations about the history of this country
on land. I do
think that South Africans must not allow themselves to make light of
the troubled history of this country on
issues of land. It is
also very important that the oppressive legacy of both colonialism
and apartheid should never be forgotten,
for it may never be
addressed if we allow ourselves to forget it. If we do so the
next generations will be entitled to doubt,
if not question our
fidelity to the Constitution. The history of this country tells us
that colonialism and land dispossession
started long before the 1913
Land Act and some of its effects may never be redressed.
However, what can be done to provide
appropriate redress within the
constitutional framework must be done with urgency.
[24]
In
Graham
Robert Herbert N.O. and Others v Senqu Municipality & Others
[7]
the Constitutional Court unanimously expressed the following
sentiments with which I am in respectful agreement:
“
[37]
In the former homelands access to land and occupation of land are
still regulated by legislation that was passed by Parliament
and
other legislative bodies of the apartheid era. Many people
continue to be denied secure land tenure rights.
They are
not afforded rights better than occupational rights in land which may
be terminated in terms of the old order laws.
As noted here the
continuing operation of laws that deny black people secure rights in
land is inconsistent with the Constitution,
our supreme law.
The dignity of the affected people is persistently impaired by the
enforcement of those laws. The
victims of the unfair
differentiation brought about by these laws have become second class
citizens to whom the fruits of the Constitution
remain a dream,
deliberately kept out of their reach. ”
[25] The documents on
which the applicants sought to establish their right to the land in
question chronicle the colonial history
of this country and is
indisputable evidence of the failure of the government to redress
it. The land which the 1
st
applicant seeks to
protect through these proceedings was allocated to Ludewick Dambuza
by King Edward the Seventh of the United
Kingdom of Great Britain in
June 1903 under Section 11 of Proclamation No. 227 of 1898. In
1964 the Chief Magistrate reallocated
the said land to the 1
st
applicant in terms of Section 10(1) of Proclamation NO. 142 of 1910
as amended.
[26] Lot No.47 was
allocated by King Edward the Seventh to Felix Mahlangeni in July
1908. The said piece of land was transferred
by Qunta
Mahlangeni with the approval of the Chief Magistrate to the 6
th
applicant in 1957.
[27] Lot No.51 was
allocated to Mrebelele Gxabaza in 1903 and in 1963 the Chief
Magistrate approved the transfer of all right, title
and interest to
the said land to David Ngxabani described in the certificate of title
to the land as son and heir.
[28] It is clear that the
applicants are either direct holders of the titles to possession of
this land or others are the descendants
of people such as the
applicants mentioned in the above examples. What is also clear
is that all the applicants have rights,
titles and interests to the
various pieces of land directly or through their forefathers from
whom they derive such rights and
interests. The basis on which
the respondents claim that the applicants lack
locus standi
is
devoid of merit and must therefore be rejected.
[29] Even if it were to
be so that the applicants’ title or interest to the land was
subject to challenge, that would not
entitle anyone including the
respondents to unlawfully occupy the land or invade it.
Therefore the applicants are perfectly
entitled to protect their
interest to the land that accrued to them through family lineage from
their forefathers and within the
available constitutional framework,
fight for the security of their tenure to their land. It is to
be hoped that now that
the Constitutional Court in
Herbert N.O.
has declared the government’s failure to upgrade the land
rights of people such as the applicants into full ownership of
their
land unconstitutional, government will indeed do what it should have
done a long time ago.
[30] The other point of
the respondents’ contestation is that of the applicants’
alleged failure to cite parties with
substantial interest in the
matter. This submission is made in relation to the fact that
the applicants did not cite Chief
Bikitsha and Mr Mbadlanyana as
parties in these proceedings. This submission can be easily
disposed of by pointing out that
the applicants seek no remedy
against both Chief Bikitsha and Mr Mbadlanyana. Secondly it is
not the applicants’ case
that either Chief Bikitsha or Mr
Mbadlanyana participated in the land invasion. In fact Chief
Bikitsha is alleged to have
reported the unlawful invasion of this
land to the police and has deposed to a confirmatory affidavit in
support of the applicants’
case. Mr Mbadlanyana used his
tractor having been hired by the respondents or some of them to
demarcate the sites.
That does not make him a participant in
the land invasion that is said to have taken place. He is no
different from anybody
who could have been asked or hired by the
respondents to clear the bush on their behalf. The content of
the alleged substantial
interest of any pf the parties that are
alleged to have a substantial interest including the departments
mentioned has not been
described.
[31] The applicants have
clearly established all the requirements for the granting of a final
interdict. They clearly have
protectable rights accruing to
them by venture of their uncontested PTOs. The applicants have
also established on the papers
before me that the respondents
unlawfully conducted themselves in a manner that amounted to illegal
land invasion with regards
to applicants’ land. In so
doing the respondents caused the applicants to have a reasonable
apprehension of harm with
no other satisfactory remedy in the
circumstances.
[32] The question of an
alternative to claim damages cannot arise in this case. I
cannot see how it can ever be argued with
any degree of cogency that
one should allow his land to be invaded and/or unlawfully occupied on
the basis of a possible alternative
remedy such as a claim for
damages against respondents who may be impecunious. I did not
understand the respondents to be
saying so. It can never be
that ownership or interests in land should be allowed to be
unlawfully usurped or threatened bearing
in mind the emotional
attachment to land especially land that has devolved over
generations.
[33]
The facts of this matter, especially the history of people such as
the applicants and the respondents’ challenge to applicants
rights are reminiscent of what the court said long ago. Some 80
years long before our revered Constitution came to be, during
the
height of the colonial era, courts have at times understood and
upheld land rights and protected them even under that insecure
dispensation as it applied to black people. Lord De Villiers CJ
applied what we would now call the rule of law in
Setlogelo
v Setlogelo
[8]
.
He said:
“
Now
the right of the applicant is perfectly clear. He is a
possessor; he is in actual occupation of the land and holds it
for
himself. And he is entitled to be protected against any person
who against his will forcibly ousts him from such possession.
True, the law does not allow him to buy land, or to lease it, or to
take transfer of it. But it does not forbid him from
occupying
it, more especially as it would seem to have devolved upon him
by way of inheritance. It would indeed be
a remarkable state of
things if a native could be deprived of his right of occupation of
land which he had honestly come by at
the instance of any person who
took a fancy to it, merely because he was not and could not become
the registered owner. And
yet that would be the result of the
order appealed from if it were allowed to stand.”
[34] The applicants were
late in filing their replying affidavit. They have given a
satisfactory explanation in their condonation
application.
Their explanation is that they needed to raise funds for this
litigation and even contemplated using the legal
services of Legal
Aid South Africa. This, together with an attempt to find an
amicable resolution of this matter contributed
to the delay.
The 1
st
to 4
th
respondents, having filed a
notice to oppose, did not file an opposing affidavit. The
opposition was based on submissions
from the bar by their counsel, an
untenable situation. The application for condonation is granted
with costs. The applicants
succeed in their application.
[35] In the result the
following order will issue:
1. The applicants’
late filing of the replying affidavit is condoned.
2. The rule nisi is
confirmed.
3. The
first, second, third and fourth respondents are ordered to pay costs.
___________________________
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicant: T.M. JIKWANA
Instructed by: M NOHESI
ATTORNEYS
c/o POTELWA & CO.
Mthatha
Counsel for the 1
st
to 4
th
Respondents: S. MPAKANE
Instructed by: BALA
MZILENI ATTORNEYS
Mthatha
Heard on: 05 SEPTEMBER
2019
Delivered
on: 15 OCTOBER 2019
[1]
Plascon-Evans
Paints (TVL) Ltd v Van Riebeck Paints (Pty) Limited
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 - 635
[2]
Setlogelo
v Setlogelo
1914 AD 221
at 227
[3]
National
Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
[4]
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA 1045
(SCA) para 25.
[5]
Nandipha
NO v Irfani Traders CC t/a Jabulani Hardware and Another
(4654/2017)
[2018] ZA ECMHC 50 (21 August 2018)
[6]
Constitution
of the Republic of south Africa, 1996.
[7]
Graham
Robert Herbert N.O. and Others v Senqu Municipality and Others
[2019] ZACC 31
[8]
See note 2 supra at page 227