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[2016] ZAKZPHC 89
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Ingonyama Trust and Others v Umlalazi Municipality and Others (1421/2016) [2016] ZAKZPHC 89 (10 October 2016)

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IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 1421/2016
In the
matter between
:
THE INGONYAMA
TRUST

FIRST APPLICANT
BONGANI
MOLEFE

SECOND
APPLICANT
NTOMBENHLE MOLEFE &
OTHERS

THIRD & FURTHER APPLICANT
and
UMLALAZI
MUNICIPALITY

FIRST

RESPONDENT
SILVER
BACK PROPERTIES (PTY) LTD

SECOND RESPONDENT
HBC
INVESTMENTS (PTY) LTD

THIRD
RESPONDENT
JUDGMENT
Date
Delivered: 10 October 2016
MBATHA
J:
[1]
The applicants seek an order interdicting the respondents from
interfering with their use, enjoyment and occupation of the l
and
known as Erven [...], [...] and [...] G., E. D., KwaZulu-Natal.
[2]
It is common cause that interim relief by way of a rule
nisi
was
granted by Booyens AJ on 12 February 2016 in terms of paragraphs 1
and 2 of the Notice of Motion. The respondents seek that
the rule
nisi
be discharged with costs. The first respondent is the local
municipality, Umlalazi Local Municipality. The second respondent is
a
company that is interested in protecting its interests in the land
purchased from the first respondent, which is the subject
matter of
this application. The third respondent acts as the project manager of
the second respondent.
[3]
The second applicant and the other applicants are occupiers of the
land which is registered in the name of the second respondent.
The
second respondent intends to develop the land for purposes of
building a shopping centre. It had purchased the land from the
local
municipality, the first respondent herein.
[4]
The applicants claim occupancy of the land in question on the basis
that they are part of the traditional community that has
been in
occupation of the land prior to the establishment of the former
KwaZulu Government, a former self-governing state, which
existed
before the establishment of a new democratic government in South
Africa. The applicants’ contention is that since
the 1890’s
their tribe was in occupation of the Erven [...], [...] and [...],
Gezinsila A, under the chieftainship of Inkosi
Zungu. They are
subjects of the current Inkosi TW Zungu and fall under the
jurisdiction of the KwaMondi Traditional Council. The
land is
administered in terms of Zulu Law Custom, Practice and Culture.
Therefore they have what is termed ‘informal rights
to land’
as contemplated in the Interim Protection of Informal Land Rights
Act
[1]
(IPILRA).
[5]
The applicants also claim that the validity of the second
respondent’s title to the land is disputed as the Ingonyama

Trust claims not to have been properly divested of its title to the
land, as a result thereof it remains the holder of the title
to the
property. This is supported by the Ingonyama Trust, which is the
first applicant in this application.
[6]
The relevant provisions of the IPILRA are as follows:
[6.1]
the preamble of the IPILRA states that the Act was promulgated to
provide for the temporary protection
of certain rights to and
interests in land which are not otherwise adequately protected by law
and to provide for matters connected
therewith;
[6.2]
the IPILRA defines ‘beneficial occupation’ as any
occupation of land by a person, as if
he or she is the owner, without
force, openly and without the permission of the registered owner;
[6.3]
section 2 of IPILRA states that where land is held on a communal
basis, a person may, subject to section
4, be deprived of such land
and right in land in accordance with custom and usage of that
community;
[6.4]
section 2(3) states further that where a deprivation of a right in
such land is caused by a disposal
of land or a right in land by the
community, the community shall pay appropriate compensation to any
person who is deprived of
an informal right to land as a result of
such disposal;
[6.5]
section 3 states that any sale or disposition of any land shall be
subject to any existing informal
rights to that land; and
[6.6]
it is to be noted that the provisions of the Act have been extended
since 1997 and they are still
applicable to date.
[7]
The applicants approached the court on the basis that the second and
third respondents intend to demolish their homes and by
so doing
evict them from the land they occupy. The respondents had already
commenced to clear the land where the shopping complex
is to be
built, by destroying their fruit trees and other vegetation on which
they depend on.
[8]
The applicants view is that the respondents actions are unlawful and
in breach of the provisions of the Prevention of Illegal
Eviction
from and Unlawful Occupation of Land Act
[2]
(PIE Act) and of their rights in terms of IPILRA were disregarded by
the respondents.
[9]
The first applicant also challenges the second respondent’s
title to the land on the basis that it was not lawfully divested
of
its rights to the land. The contention raised by the applicants is
that the land in question never formed part of the township
and the
municipality had no legal right to sell the property to the second
respondent.
[10]
It is the applicants’ case that the land that was to be
transferred to the first respondent was the township of Gezinsila

under Proclamation R293/1962 and not the land occupied by them. The
part of the land where the second applicant and others are
in
occupation should not have been transferred to the first respondent
in 2001. At the time of the transfer there was no consultation
with
the traditional community which enjoyed protection in terms of
IPILRA. This view is supported by the first applicant, who
intends to
bring an application to court for a declaration order in respect of
this contested land. The applicants contend that
this land was
formally vested in the name of the first applicant under the
KwaZulu-Natal Ingonyama Trusts Act.
[3]
[11]
The second respondent holds the two title deeds to the properties,
Title Deeds No T26220/2015 and T26221/2015. It obtained
transfer of
these properties from the first respondent, Umlalazi Municipality.
[12]
The applicants had every reason to believe that they will be evicted
by the respondents as in preparation for the building
of the shopping
complex on or about February 2016, the respondents removed the
illegal squatters on the land without a court order.
Subsequently
thereafter, the first respondent proceeded to serve them with notices
addressed to ‘The Occupier’, signed
by the Municipal
Manager, the deponent to the answering affidavit of the first
respondent. It informed them that the site will
be cleared for the
establishment of the King Dinuzulu Shopping Centre and confirmed that
Erven [...], [...], [...] and Rem of Erf
[...] have been transferred
to the developers. On behalf of the applicants, Collin Msizi Mnguni
Attorneys addressed a letter to
the Municipal Manager dated 08
January 2016 advising the Municipal Manager that they are in the
process of bringing an application
to reverse the transfer of the
erven back to Ingonyama Trust as they were transferred in error to
the municipality. It also warned
against the unlawful eviction of the
occupiers of the erven.
[13]
This was followed by another letter dated 11 February 2016 from
Tomlinson Mnguni James Attorneys stating that they act for
the first
applicant and other applicants. This letter also warned against the
unlawful eviction of the applicants from the land
in question, after
the applicants have been informed by those who represent the
respondents that if they have not vacated the premises
by 10 February
2016, the bulldozers will come and demolish their homes. This letter
was forwarded to the respondents’ attorneys
Wynne & Wynne
of Eshowe.
[14]
The applicants also stated that this was followed by a visit by the
delegation from the first respondent’s office which
included
the Municipality Manager and the Mayor, who visited the sites where
the tree clearing operations were continuing. The
third applicant was
visited by the Project Manager of the respondents who informed them
that they have until 11 February 2016 to
vacate the place, after
which they will come with bulldozers to demolish their homes.
[15]
The first respondent opposes the application on the basis that the
land is neither owned by, nor falls under, the Ingonyama
Trust
administration. Furthermore, the applicants cannot seek protection
from the provisions of the IPILRA as they are not in occupation
of
the land. They see the conduct of the applicants as only
opportunistic. The Municipality Manager, representing the first
respondent
states that the land in question was not occupied, as the
previous occupants were relocated and settled by the Sakhum Phakathi
Property Developers. However, the aerial photographs filed by the
applicants have disproved them as they show various homesteads
on the
land. Furthermore, there is no evidence presented by the first
respondent that the applicants migrated back to the area
after being
relocated by SakhumPhakathi. The photographs indicate that these are
old homesteads and that people have lived there
for quite a long
time. There is also no explanation why he had to address letters to
‘The Occupier’ if the erven were
not occupied and the
illegal squatters had already been evicted from the properties.
[16]
He denies that the provisions of the PIE Act are applicable to the
applicants, as they are not in occupation of the land. This
has been
disproved by the evidence of the applicants.
[17]
The applicants submit that the first respondent has disregarded the
rights of the occupiers of the land by transferring the
land to a
developer, which is illegal and unconstitutional. In the light of the
threatened evictions the appellants only seek an
order to prevent the
respondents from proceeding with the development and interfering with
their
bona
fide
possession and use of land pending the determination of the
applicants’ rights to the property.
[18]
The first respondent contends that a settlement was reached with the
previous occupants, however, no evidence has been adduced
by the
first respondent that the award of the one-roomed RDP houses in 1996
to their late ancestors was a compensation of their
rights to the
land. According to the applicants those RDP houses were only
allocated to the specific individuals who had applied
for them and
were not in compensation to their families.  More so it could
not be accepted as adequate compensation.
[19]
The style in which the respondents operated is reminiscent of the
forced removals of black people from their land, without
compensation
and without due regard to their rights. The respondents have acted in
a very undignified and unlawful way in pursuit
of commercial agenda.
[20]
It is clear to this court that a declaratory order ought to be
obtained from this court which will define the rights of the
parties
to the land, and, if necessary, correct what the first applicant
alleges occurred in error.
[21]
The court will also be able to define whether the land forms part of
Gezinsila Township or falls within the administration
of the
Ingonyama Trust Act or any other law.
[22]
The respondents contend that the applicants’ application is
based on a
mandament
van spolie
.
Counsel for the respondents submits that a
mandament
van spolie
cannot be invoked to prohibit a threatened spoliation. As a result
thereof the applicants have wrongly conflated the requirements
of a
mandament
van spolie
with that of a final interdict.
[23]
It is common cause that a
mandament
van spolie
is a final order, often sought in an urgent matter, whereby the
applicant must allege and prove that he/she was in peaceful and

undisturbed possession of the property or right. The applicant must
allege and prove unlawful deprivation of possession by the
other
party. This would mean without consent or due legal process. On the
other hand in
Setlogelo
v Setlogelo
[4]
the court sets out the requirements for a final interdict whereby the
applicant has to establish a clear right, injury actually
committed
or a reasonable apprehension of harm and the absence of any other
remedy.
[244]
The applicants submit that a court can grant an interdict against a
threatened spoliation. The threatened eviction and destruction
of the
vegetation and trees could not have been remedied by seeking a
spoliation order.
[25]
The applicants rely on
Aussenkehrs
Farms (Pty) Ltd v Walvis Bay Municipality
[5]
where the court held that it would be a strange result if the
applicant could not obtain an interdict prohibiting the respondent

from despoiling him, but then as soon as the respondent despoiled
him, he could obtain a spoliation order and have his possession

restored. It went on further to say that the result of holding that
the right which the applicant has to show in this case is any
more
than a right not to be despoiled would result in the respondent being
given a licence to evict the applicant.
[26]
The court subsequently held that where a person seeks a final
interdict prohibiting spoliation by another of his occupation
of a
particular site, he does not have to prove a right to occupy the site
on which he and/or his goods are, as he would have to
do if he were
seeking a declaratory order that he was entitled to occupy the site
or to carry on business on that site. He has
only to establish that
he has a right not to be deprived unlawfully of his
de
facto
possession.
[27]
In
Aussenkehrs
Farms
the appellant had erected a tent on a particular site in Walvis Bay
in order to sell fruit and vegetables to lower income groups
at
affordable prices. It was done with the approval of one of the
municipality’s officials, but it was later told to vacate
the
site. The municipality informed the applicant that he requires
written approval for operating such a business venture, which
he did
not have. The respondent then threatened to involve the assistance of
police to remove the applicant’s tent. The applicant
then
brought an application for a final interdict restraining the
respondent from evicting it, demolishing the tent and from
interfering
in anyway with the applicant’s business activities.
The court held that the applicant was entitled to an interdict
protecting
it against being deprived unlawfully of its
de
facto
possession of the site, tent and paraphernalia, even if such
possession was unlawful.
[28]
A more persuasive and binding authority is found in
Maritzburg
Sawing & Yoke Co Ltd v Piesold
Sewing
and Yoke Co,
[6]
a decision by Wilson J.P. This was a case where a caretaker of a
property sought an interdict against a person, who whatever his

rights, had certainly no right to take possession when he did. The
court held that the interdict was rightly granted as it was
clear
that the person who had left the caretaker behind had never abandoned
possession of the property. He remained in possession
and it would
have been wrong if he were to be disturbed in his legitimate
possession.
[29]
In
Tswelopele
Non-profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
[7]
the court held that the wanton destruction of the occupiers’
dwellings violated the Constitution, that it violated the occupiers

fundamental right against unauthorised eviction, given the implicit
menace with which the eviction was carried out, it infringed
upon the
occupiers right to personal security and their right to privacy. In
this case about 100 people were evicted from their
homes on a vacant
piece of land in Pretoria. Their makeshift homes went up in smoke and
as a result that they lost most of their
rudimentary possessions.
[30]
The court further held that this operation was carried out
irrespective that the Constitution provides that ‘no one may
be
evicted from their home or have their home demolished without an
order of court made after considering all the relevant circumstances’

as stated in section 26(3) of the Bill of Rights. This was also
against the provisions of section 8(1) of the PIE Act which states

that:
‘
No
person may evict an unlawful occupier except on the authority of an
order of a competent court
.’
[31]
The respondents rely on the unreported judgment of Boruchowitz J from
the South? Gauteng Local Division in the case of
Outdoor
Network Limited & Another v The Passengers Rail Agency of South
Africa & Another
,
case number 26064/2013 (30 May 2014) where the applicant sought a
remedy to prevent a threatened spoliation.
[32]
In this judgment the court held that the
mandament
van spolie
cannot prohibit a threatened spoliation, it is only available to a
de
facto
possessor
who has been despoiled. Therefore the applicant for a final interdict
must establish that it is a holder of a right which
is recognised as
a matter of substantive law. Boruchowitz J therefore holds the view
that
Aussenkehrs
was wrongly decided, a view shared by authors Kleyn  and Van der
Walt.
[8]
[33]
It is therefore submitted that an application for a final interdict
must not only establish a right to be unlawfully deprived,
but also a
legal right to possession (
a
ius possidendi
).
The respondents view is that no clear right has been established in
the circumstances.
[34]
I do not share the views expressed in the
Outdoor
Network Limited
case on the basis that no one should be evicted without a legal
process irrespective whether he is a
de
facto
or
de
iure
holder of rights. It is my view that a threatened spoliation need to
be prohibited where it would result in the violation of human
rights
or would amount to an injustice.
[35]
There are a number of judgments which state that no one may be
evicted from their home or have their home demolished without
an
order of court made after considering all the relevant circumstances.
There are various cases which state that no legislation
may permit
arbitrary evictions, amongst others,
Government
of the Republic of South Africa and Others v Grootboom and Others
,
[9]
Jaftha
v Schoeman and Others, Van Rooyen v Stoltz and Others
.
[10]
[36]
The municipality has a role to play in giving priority to the basic
needs of the community, a role which is in line with the

Constitution, a role which it should not have abandoned in favour of
a commercial venture.
[37]
Besides the Constitution, Parliament has also put on safeguards by
the promulgation of relevant legislation in protecting people
against
unlawful evictions. Evictions are governed in terms of the PIE Act
and section 4 thereof provides that the courts may grant
an order for
eviction if it is just and equitable to do so after considering all
the relevant circumstances. The discretion to
evict is left with the
courts. In this case the respondents did not even follow the PIE Act
route. This is a well-known procedure
even to the first respondent,
as there is service to the municipality each time an eviction is
sought in terms of the PIE Act.
[38]
In
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd
and
Another,
[11]
the court stated that the South African constitutional order
recognises the social and historical context of property and
related
rights. The protection against arbitrary deprivation of property in
section 25 of the Constitution is balanced by the right
of access to
adequate housing in section 26(1) and a person should not to be
evicted arbitrarily from one’s home in section
26(3). I am
referring to this case as it is borne of almost the same
circumstances of the matter before me.
[39]
Had the matter been taken to court it would have been clear that
their occupation of the place was old as the hills of Eshowe,
it was
a
bona
fide
occupation, that the first respondent was aware of their occupation
when it sold the property to the second respondent and that
the first
respondent, the municipality, still had a Constitutional duty to
provide them with alternative accommodation.
[40]
In terms of section 9 of the Housing Act
[12]
the municipality is required to ensure access to adequate housing.
The first respondent in this case tried to rely on one-bedroomed
RDP
houses allocated to a few deceased persons, which is of no relevance
to this matter, as no settlement agreement has been made
available to
this court as proof of such an agreement. The first respondent failed
in its duty as required in terms of section
9 of the Housing Act.
[41]
This duty is extended to the municipality even when it is the private
company that is evicting the occupiers. (See
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd
above)
[42]
It is my view that the applicants have shown that they are entitled
to the relief sought. The unlawful actions of the respondents’

stands out like a sore thumb and cannot be condoned, irrespective of
the indeterminate state of the land in question.
[43] Accordingly, I make
the following order:
(a)
The rule
nisi
is confirmed with costs.
(b)
The Ingonyama Trust is ordered to bring an application for a
declaratory order regarding
the status of erven [...], [...], [...]
and [...] G., E. D., within a period of sixty (60) days from the date
of the granting of
this order.
______________________
MBATHA
J
Date
of hearing

:           31
August 2016
Date
delivered

:           10
October 2016
Appearances
:
For
the Applicant

:           Adv DP
Crampton
Instructed
by

:
TOMLINSON MNGUNI JAMES INC
165
Pietermaritz Street
Pietermaritzburg
For
the First Respondent
:
Adv AC
Camp
Instructed
by

:           WYNNE &
WYNNE ATTORNEYS
c/o
TATHAM WILKES INC
200
Hoosen Haffejee Street
Pietermaritzburg
For
the Second Respondent
:
Adv AC
Camp
Instructed
by

:           VENNS
ATTORNEYS
281
Pietermaritz Street
Pietermaritzburg
[1]
Act 31 of 1996
[2]
Act 19 of 1998
[3]
Act 3 KZ of 1984
[4]
1914 AD 221
[5]
1996 (1) SA 180
(C)
[6]
1915 36 NLR 69
[7]
2007 (6) SA 511
(SCA)
[8]
D Kleyn,
“
Mandament
van Spolie a
nd
The
Interdict: The confusion continues
”
1996
De
Jure
162;  “
Mandament
van Spolie ‘n interdik?”
AJ Van der Walt,
De
Rebus
,
October 1984 at 477;  JC Sonnekus, “
Sakereg
Vonnisbundel
”
(2 ed) at 166;  Silberberg & Schoeman’s “
The
Law of Property
”
(5 ed) Footnote 235 at 309;  Van der Merwe, “
Sakereg
”
(2 ed) at 149 Note 439)
[9]
2001
(1) SA 46 (CC)
[10]
[2004] ZACC 25
;
2005 (2) SA 140
;
2005 (1) BCLR 78
(CC)
[11]
2012 (2) BCLR 150;
2012 (2) SA 104 (CC)
[12]
Act 107 of 1997