Brief Summary

Land — Locus standi — Applicant seeking interdict against respondents for construction on property claimed as part of deceased estate — Respondents contesting applicant's standing based on Proclamation No. 26 of 1936, arguing rights to occupy lapsed upon death of allotment holder — Court finding prior ruling on locus standi binding and dismissing respondents' challenge — Principle of res judicata applied, preventing re-litigation of standing issue — Interim interdict confirmed pending final determination of ownership rights.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application for the confirmation of a rule nisi and interim interdict granted on an urgent basis, aimed at stopping and undoing building works on land described as allotment 253–B, Makhaphetshwini, Libode. The relief sought was essentially interdictory and restorative, including an order restraining continued construction and directing demolition of a cement block wall structure allegedly being erected unlawfully.

The applicant, Dlakavu Nandipha N.O., acted in a representative capacity in relation to the estate of her late father, Citibunga Duddley Dlakavu. The respondents were Irfani Traders CC t/a Jabulani Hardware (first respondent) and Muhammed Latilchishti (second respondent), who were alleged to be responsible for construction on the property.

Procedurally, an interim order was granted by Brooks J on 5 October 2017. Although the respondents had been properly served, they were not present or represented when that order was made. Thereafter, the respondents brought a reconsideration application focused mainly on the applicant’s locus standi, which was heard by Jolwana J on 16 November 2017 and was dismissed with costs, with the rule nisi being extended. The matter then came before Kunju AJ on 10 May 2018 for confirmation of the interim order, with judgment delivered on 21 August 2018.

The broader subject-matter concerned competing claims to rights of occupation and control over land held under a permission to occupy (PTO) regime, and the consequences of historical tenure arrangements under Proclamation No. 26 of 1936, viewed against the post-constitutional framework, including protections for informal land rights.

2. Material Facts

It was common cause that the property in issue (allotment 253–B, Makhaphetshwini, Libode) had been allocated to the applicant’s late father on 2 January 1969 under section 4(1) of Proclamation No. 26 of 1936, and that he died on 12 September 1998. The applicant relied on a permission to occupy issued in 1969 by the then Government of the Republic of Transkei, and asserted that she was acting as an estate representative in seeking to protect the property from unlawful interference.

It was also not materially disputed that the respondents were erecting a cement block wall structure on the property. The applicant’s case was that this construction occurred without her consent and without any lawful right on the part of the respondents to occupy the property or build on it. The applicant further stated that eviction proceedings were pending between the parties in the same court.

The respondents’ opposition rested mainly on two contentions addressed in the judgment. First, they alleged that they had obtained consent to build through a lease agreement concluded with Zukile Dlakavu. The court recorded that Zukile Dlakavu was not the executor of the estate, there was no indication he was authorised to act on behalf of the applicant, and the lease in any event expired on 30 September 2017.

Second, the respondents contended that the applicant lacked locus standi because, on their reading of section 9(2) of Proclamation No. 26 of 1936, the deceased allotment holder’s rights to occupy were ipso facto cancelled upon death, with the allotment reverting to commonage in the absence of re-allotment to a family member. This issue had previously been raised centrally in the reconsideration proceedings before Jolwana J.

3. Legal Issues

The central questions the court was required to determine were whether the interim relief granted by Brooks J should be confirmed as final relief, and whether the respondents had demonstrated any sustainable basis to resist confirmation.

A key legal issue was whether the applicant had locus standi to seek interdictory relief in respect of the allotment, particularly in light of the respondents’ reliance on section 9(2) of Proclamation No. 26 of 1936 and their argument that the allotment holder’s death cancelled the relevant rights and caused the land to revert to commonage.

Closely connected to that locus standi debate was whether the respondents were barred from re-arguing the point because it had already been determined in the earlier reconsideration proceedings, raising a question of res judicata and the finality of a prior determination of a legal point between the same parties.

In addition, the court had to consider whether, on the facts accepted, the requirements for a final interdict were met, as articulated in the authority cited by the court.

The dispute thus involved a combination of questions of law (standing; res judicata; the interaction between the proclamation and constitutional/informal rights protections) and the application of legal principles to largely common-cause facts (ongoing construction; absence of valid authority under the asserted lease; the appropriate costs scale).

4. Court’s Reasoning

The court first addressed the respondents’ reliance on the alleged lease concluded with Zukile Dlakavu. It held that this ground could not succeed because Zukile Dlakavu was not shown to be authorised to bind the estate or the applicant in her representative capacity, and because the lease agreement relied upon had in any event lapsed on 30 September 2017. On that footing, the purported consent to build provided no valid basis for the respondents’ continuing construction activities.

The court then turned to locus standi, noting that the same issue had been central in the reconsideration application heard by Jolwana J. The judgment recorded that Jolwana J’s reconsideration judgment was focused on standing and dealt with the respondents’ contention that the deceased’s rights were cancelled upon death under section 9(2) of the proclamation. Kunju AJ regarded Jolwana J’s dismissal of the reconsideration application as a determination of that point of law between the same parties.

On that basis, the court applied the principle of res judicata, stating that where a competent court has given a final judgment in a matter, subsequent litigation between the same parties on the same subject-matter and based on the same cause of action is not permissible and may be met by the exceptio rei judicatae vel litis finitae. The court emphasised the policy purposes of the principle, namely preventing repetitive litigation, harassment, and conflicting decisions. It held that, even though the prior dismissal occurred in an interlocutory setting, the dismissal of the locus standi point was final in effect and could not be revisited by the same court; the appropriate remedy would have been an appeal. Since no appeal was pending, the court found it improper for the respondents to raise the issue again, and concluded that locus standi was res judicata and fell to be dismissed.

Beyond res judicata, the court added further reasons why the standing argument could not succeed. It set out the relevant provisions of the proclamation, including section 4(1) (governing permission to occupy) and section 9(2)(a)–(b) (providing for cancellation of occupation rights upon death and possible re-allotment, failing which reversion to commonage). The court noted that the respondents’ argument invited the court to endorse those provisions in the manner contended for, which the court stated it could not do, situating this within an account of the historical context of land dispossession and insecure tenure for black people under apartheid-era legal frameworks.

The court then located the applicant’s standing in the post-constitutional legal framework. It referred to section 25(1), (5), (6) and (9) of the Constitution of the Republic of South Africa, 1996, and described subsequent legislative responses aimed at protecting insecure land rights. The judgment discussed the Communal Land Rights Act 11 of 2004, noting that its constitutional validity had been successfully challenged and that it was declared unconstitutional (with reliance being placed on the Constitutional Court decision cited). The court therefore did not treat that Act as providing a basis for the respondents’ submissions.

The court instead relied on the Interim Protection of Informal Land Rights Act 31 of 1996, explaining its purpose as providing temporary protection for land rights and interests not otherwise adequately protected by law. It quoted section 2(1), which prohibits deprivation of informal land rights without consent (subject to specified exceptions), and referred to the Act’s definitions of an “informal right to land” and “beneficial occupation”. The court concluded that the applicant had informal rights in relation to the land which were protected by the Interim Protection Act, and stated that her standing was sourced from section 25(1), (5) and (6) of the Constitution read with section 2(1) of the Interim Protection Act.

Turning to the merits of confirming the interdict, the court observed that the respondents did not strenuously oppose the merits and did not argue that the requirements for a final interdict, as set out in Setlogelo v Setlogelo, were not met. The court treated the locus standi determination as adequately addressing the requirement of a clear right, adding that the applicant was entitled to approach court on behalf of the estate to challenge unlawful interference with estate assets. It found that the respondents’ ongoing construction, purportedly based on a lease concluded with someone lacking authority and which had expired, constituted unlawful interference with the estate’s property. The court further noted that the respondents did not contend that another satisfactory remedy existed, and the court itself did not consider there to be an available alternative remedy in the circumstances.

Finally, on costs, the applicant sought a punitive scale. The court declined to grant attorney-and-client (or attorney-and-own-client) costs, relying on the Constitutional Court authority cited for the proposition that such costs are extraordinary and reserved for clear, indubitably vexatious and reprehensible conduct. The court therefore limited the costs order to the party-and-party scale.

5. Outcome and Relief

The court confirmed the operative interdictory and demolition-related components of the interim order granted on 5 October 2017. Specifically, the court confirmed the sub-paragraphs restraining continued construction, directing demolition of the cement block wall structure, and authorising demolition by the applicant (with assistance from the South African Police Service if necessary) if the respondents failed to comply.

The respondents were ordered to pay the costs of the application on the party-and-party scale. The court refused to grant punitive costs.

Cases Cited

Tongoane v Minister of Agriculture and Land Affairs 2010 (6) SA 214 (CC)

Setlogelo v Setlogelo 1914 AD 221

Limpompo Legal Solutions and Others v Vhembe District Municipality 2017 (9) BCLR 1216 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), section 25(1), section 25(5), section 25(6), and section 25(9)

Proclamation No. 26 of 1936, section 4(1) and section 9(2)(a)–(b)

Transkei Agricultural Development Act, 1966 (Act 10 of 1966)

Transkei Land Amendment Act, 1968

Communal Land Rights Act 11 of 2004

Interim Protection of Informal Land Rights Act 31 of 1996, section 2(1)

Expropriation Act, 1975 (Act 63 of 1975)

Development Trust and Land Act, 1936 (Act 18 of 1936)

Self-Governing Territories Constitution Act, 1971 (Act 21 of 1971)

Rules of Court Cited

Uniform Rules of Court, Rule 6

Uniform Rules of Court, Rule 6(12)

Held

The court held that the respondents’ defence based on a lease agreement failed because the alleged lessor was not shown to be authorised to act for the estate and, in any event, the lease had expired. The respondents therefore had no sustainable basis to justify continued construction on the property.

The court held that the respondents were barred by res judicata from re-arguing the applicant’s lack of locus standi, because the standing point had already been squarely raised and dismissed in the reconsideration application before Jolwana J, and no appeal had been pursued.

The court further held, in any event, that the applicant had locus standi sourced in the constitutional protection of property and tenure security under section 25 of the Constitution, read with the protection afforded to informal rights to land under section 2(1) of the Interim Protection of Informal Land Rights Act 31 of 1996.

The court held that the requirements for a final interdict, as referred to in Setlogelo v Setlogelo, were not meaningfully contested on the merits and were satisfied on the facts accepted by the court. The rule nisi was confirmed in respect of the interdict and demolition-related relief, and costs were awarded on the party-and-party scale rather than a punitive scale.

LEGAL PRINCIPLES

The judgment applied the principle that once a competent court has finally determined an issue between the same parties, subsequent attempts to litigate the same issue may be barred by res judicata (the exceptio rei judicatae vel litis finitae), in order to prevent repetitive litigation, harassment, and conflicting judgments. In the court’s approach, the prior dismissal of the standing point in the reconsideration proceedings was final in effect and could not be revisited in later proceedings absent an appeal.

The judgment applied the constitutional and statutory framework protecting insecure land tenure, treating section 25 of the Constitution and section 2(1) of the Interim Protection of Informal Land Rights Act 31 of 1996 as a source of enforceable protection against deprivation of informal land rights without consent. On this basis, the court accepted that rights in relation to land held under historical tenure arrangements could attract protection as informal rights, grounding standing to seek interdictory relief.

The judgment applied the requirements for a final interdict as set out in Setlogelo v Setlogelo 1914 AD 221, namely a clear right, injury committed or reasonably apprehended, and absence of an adequate alternative remedy, and treated the applicant’s representative entitlement to protect estate assets and the respondents’ unauthorised construction as satisfying those requirements on the papers and argument before it.

On costs, the judgment applied the principle that an award of costs on the attorney-and-client scale is exceptional and reserved for clearly vexatious and reprehensible conduct, relying on the Constitutional Court authority cited. The court therefore confined the costs award to the ordinary party-and-party scale in the exercise of its discretion.

Nandipha NO v Irfani Traders CC t.a Jabulani Hardware and Another (4654/2017) [2018] ZAECMHC 50 (21 August 2018)