2
FRANS MANYAKA 7th Applicant
SALAMU GUTACHO 8th Applicant
GLORIA MBULAYENI 9th Applicant
MAISHA LONDOLANI 10th Applicant
TSHEGOFATSO LENS 11th Applicant
DONALD VIRINA 12th Applicant
NOMKHOSI HLOPHE 13th Applicant
THANDZI MULAMBULE 14th Applicant
PFARISO MUEDI 15th Applicant
MARCIA RAMABANDA 16th Applicant
TENDANI MUNYAI 17th Applicant
ANDISWA SITHOLE 18th Applicant
AYANDA KHUMALO 19th Applicant
JOSHUA PHALALI 20th Applicant
NAKISANI MASHAMBA 21st Applicant
MARIA DLAMINI 22nd Applicant
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MZOTHULA MBATHA 23rd Applicant
KGOTHATSO MOTSEI 24th Applicant
MASHUDU RABALI 25th Applicant
MACELO NDINDAN 26th Applicant
GUDANI MURAKE 27th Applicant
BUTSHILO MATHINDUNI 28th Applicant
TUMELO THOBEJANI 29th Applicant
and
MOGALE CITY LOCAL MUNICIPALITY 1st Respondent
MUNICIPAL MANAGER 2nd Respondent
COUNCILLOR: THIZWILONDI JAMES TAPANI 3rd Respondent
VILLAGE FARM PROPERTIES (PTY) LTD 4th Respondent
REASONS FOR JUDGMENT
Urgent spoliation application for by land invaders – court processes abused in order
to allow sanctioned occupation on false version.
FISHER J
Order
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1.The applications are dealt with as being urgent and in accordance with the
provisions of rule 6(12).
2. The interim order of Manoim J dated 18 April 2025 is set aside.
3.The main application is dismissed.
4.The application for contempt of court is dismissed .
5. The applicants are to pay the costs of all the applications and
appearances, jointly and severally ; on the scale as between attorney and
own client ; and on scale C.
[1] On 24 April 2025 I heard a n urgent application which was a return date of an
order heard at the end of the previous urgent week and on 17 April 2025 by
Manoim J.
[2] I gave the order set out abo ve and said that reasons would follow. These are the
reasons.
[3] Shortly before midnight on Thursday 17 April 20 25, the night before Good Friday
which was a public holiday, the first applicant, Mr Mathlatjie, who states in his
founding affidavit that he brings this application on his own behalf and on behalf
of the twenty -nine applic ants cited herein filed an application in the urgent court
of Manoim J to be heard on Good Friday 18 April 2025.
[4] The respondents against whom the urgent relief was sought were first the
Mogale City Municipality (the Municipality) and second, the Municipal Manager
5
of the Municipality . The third respondent against whom no relief was sought in
the main application is cited as the co uncillor for the district, Mr Tapani.
[5] As I will deal with later, notwithstanding that no relief is sought against Mr
Timpani, an application for contempt of court is brought seeking his incarceration
and/or that he pay a fine for his alleged contempt of the interim order of Manoim
J. This is dealt with in more detail later.
[6] The allegations made in the founding affidavit are distressing.
[7] The case is one of alleged mass spoliation by the State of a settled community .
[8] The occupants of the community are alleged to have been occup ying the
property in question , which is a large vacant plot, for some months.
[9] Those occupying are said to comprise families , including children , some of whom
are infants and elderly persons .
[10] A central allegation made by the deponent to the founding affidavit , Mr Mathlatjie,
and purportedly for the applicants that are part of the application ( and I will deal
with this aspect later) is that the applicants forming this community have
inhabited the property at least since October 2024 and that they have done so
“with permission ”.
[11] It is alleged that the Municipality, without legal sanction under the PIE Act1
orchestrated a mass eviction of these persons .
1 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
6
[12] Not only were they evicted , says Mr Mathlatjie , but their dwellings were
dismantled before their very eyes and in the presence of children and their
furniture and effects removed from the property .
[13] Mr Mathlattjie alleges that the agents employed by the Municipality were the
notorious “ Red Ants ” who have been involved in a number of mass evictions over
the years.
[14] Mr Mathlatjie claims unlaw ful dispossession of peac eful occupants and thus the
cause of action is one of spoliation.
[15] An applicant in a spoliation application has only to show possession and that he
was unlawfully dispossessed .
[16] The land in question is in Muldersd rift in a township known as Video .
[17] In the founding affidavit it is alleged that the property is described as plot 80
Rietfontain , Muldersdrift.
[18] The allegation made in the founding affidavit as to ownership is that the
Municipality owned the land. This has proved to be incorrect – but I will come
back to this aspect.
[19] The case of the applicant is based on the following allegations made by Mr
Mathlatjie in the founding af fidavit:
• On or about 08 August 2024 the councillor, Mr T apani submitted request to
the Muni cipality for ‘some of the applicants’ to be allocated the right to occupy
plot 80.
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• The request was “authorised” by the Municipality’s “Department of Human
Settlements”.
• “Some of the applicants” obtained permission to construct the dwellings .
• These applicants proceeded to construct the dwellings.
• This took place from September 2024 to Februar y 2025.
• The applicants who had so “obtained permission to construct these
dwellings ” did so under the “watchful eye of the Red Ants” .
• On 10 April 2025 – i.e. approximately a week before the order was obtained
before Manoim J - Ms Ntombizethu Dijane a representative of the
Municipality and other officials of the Muni cipality , served notices to the
applicants in terms of which notices the applicants were directed to vacate
the land within 24 hours on the basis that they were land invaders.
• A further notice to vacate was delivered on 16 April 2025.
• The demolition of the dwellings started at approximately 08h00 on 17 April
2025.
[20] Pictures of the alleged demolition are said to be attached . But they show only a
desultory group of people comprising three adults and four children of various
ages including an infant tied with a blanket to the back of one of those
photographed.
8
[21] There are also , scattered around , building materials , including brandering and
sheet metal . These items appear from the photographs relied on not to have
been subject to the elements for an extended period of time. In fact , they look
brand new.
[22] The items are furthermore scattered around what appear to be cement
foundations which one would expect to be the floor of an informal dwelling of the
type in issue.
[23] The attorney who argued for the applicant , Mr Ntaka placed much store by these
foundations. It was argued that they constituted photographic evidence of the
fact that the occupants had been on the land for some time such that they had
even laid cement foundations.
[24] I must say the obviously brand -new material which was strewn around the few
foundations pictured seem ed incongruous. The scene appears posed and
contrived. There is no indication of widespread furnishings or personal effects
being laid waste to as would be the case on the scene of a mass eviction of fully
fledged occupants.
[25] The allegation is to the effect that thirty eight well established households were
demolished by the Red Ants on 17 April 2025. This demolition was allegedly
completed by 11h00 on 17 April 2025.
[26] The applicants alleged that they appointed their legal representatives on the
afternoon of 17 April 2025 whereupon a consultation was arranged and the
papers dr awn for urgent issuing and service . Such service took place in the late
hours approaching midnight of 17 April 2025.
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[27] The deponent to the founding affidavit explains that due to the fact that “we are
homel ess without a roof over our heads” ; that there were the rights of minor
children who “require the war mth of a structure” at stake ; and that they “ currently
have no toilets nor a structure for [their] privacy and to prepare [their] meals ” the
matter was direly urgent .
[28] It was stated that the applicants and their families “are living in an open space
and are exposed to the elements ”. The very lives of the applicants were said to
be at stake because of the risk of criminal activity in the area and health hazards
which flowed from being unprotected and subject to the elements.
[29] Costs were sought in the founding affidavit on a punitive scale against the first
and second respondents .
[30] The picture prese nted was one of reckless abuse of power on behalf of the State.
The most vul nerable were said to be subject to this treatment at the hands of the
State authorities. This , it was argued in the founding affidavit , was in the face of
the applicants having been given permission to occupy the property and having
been in possession of the land whereupon the dwellin gs were erected and
occupied by the applicants and their families .
[31] This occupation which took place over more than six months allegedly took place
in the prese nce of agents of the State in the form of the Red Ants in their capacity
as security guards of the proper ty.
[32] The Municipal respond ents were not in a position to produce a version. This
stands to reason; they were served with the application shortly before midnight
before a public holiday .
[33] The State respondents did however muster the legal resources to appear before
Manoim J the next day. It seems that this was unanticipated by the applicants.
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[34] The applicants were aware of the constraints faced by the State respondents.
Indeed, the State respondents allege that these constraints were orchestrated
as part of a tactical operation . I will come to this later.
[35] The applicants sought final relief.
[36] It was argued before me on 24 April 2025 , which was the return date of the order
handed down by Manoim J , that this final relief should have been granted and
the applicants immediately reinstated to the remnants of their dwellings. It was
furthermore sought that the dwellings be rebuilt by the Municipality .
[37] Manoim J , faced with what the applicant s said was a crisis , was concerned to
protect the rights of those who presented as vulnerable persons who had been
brutally disposed of their dwellings . He was , at the same time prudent to fashion
a remedy which would allow for some protection of the applicants and their
families in the interim to an urgent hearing to take place the following week so as
to allow for the opposition of the State .
[38] Manoim J was obviously concerned that he only had the version contained in the
founding affidavit, it having been impossible for the State respondents to have
answered the application overnight. It is common cause that such engagement
with the allegations in the founding affidavit was impossible in the time allowed.
[39] The State respondents had , however , notwithstanding having been served close
to midnight on 17 April 2025, managed to achieve the attendance of junior
counsel at the Good Friday hearing. I believe that this attendance was
unexpected.
[40] This remedy which was ultimately fashioned with input on behalf of the applicants
and the State representatives that day sought to create a solution which all owed
11
for the State respondents to be heard in a structured manner which took account
of the alleged plight of the applicants.
[41] What was ultimately revealed by the appearance on behalf of the State
respondents was that the land in question was part of an ongoing expropriation
process with compensation . The expropriation was being effect in order to
construct RDP housing . The State respondents it was revealed were not yet the
owners of the land. Instead, there was an expropriation process which was well
unde rway which entailed the eventual transfer of the property to the Municipality.
[42] The order granted by Manoim J on 18 April 2025 was to the following effect:
a. The case was dealt with urgently with by Manoim J.
b. The owner of the land, Village Farm Administrators (Pty) Ltd (Village)
was joined as the fourth respondent.
c. The Municipality was ordered t o provide “the applicants and their
families with emergency temporary accommodation” .
d. The applicants were ordered to furnish the State respondents and the
owner, Village with a list of affected individuals who had occupied the
land on or before 17h00 on 18 April 20 25 and this information was to
be provided by no later than 17 h00 on 22 April 2025 (i.e. on Easter
Monday ).
e. It was required by the order that the applicants provide copies of their
identity documents or birth certificates .
f. It was reco rded in the order that the ejected individuals in question ,
numbered 87 (i.e. the applicants and their fa milies) .
g. In the e vent that th e proceedings were dismissed the applicants were
to vacate the emergency accommodation prov ided by the State
respondents under the order .
h. There was time frames agreed for the furnishing of affidavits by the
parties set at 12h00 and 18h00 on Wednesday 23 April 2025.
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i. The matter was postponed for hearing on Thursday 24 April 2025.
[43] As I have said, the allegations in the founding affidavit of Mr Mathlatjie alleged
that the State respondents had been involved in illegal activity which was so
egregious as to demand this court ’s urgent intervention on a matter of hours
notice and that affidavits be filed in severely truncated time periods.
[44] Hence the order of Manoim J on 18 April ; my consequent consideration of the
case five days later according to the interim order of Manoim J ; my furnishing of
the order on 24 April these reasons in the days following.
[45] The aftermath of th e order of Manoim J and the purported compliance there with
proceeded as follows :
• The applicants did not provide the details of the occupiers notwithstanding
that this information was required in order to provide the emergency
accommodation prayed for .
• The State respondents nonetheless provided emergency accommodation
in the form of land on a nearby agricu ltural property which was already
occupied in part .
• The third-party occupants of thi s accommodation resisted the occupation
of the proposed agricultural lot, and the applicants which presented
themselves at this lot were threatened by the occupiers and thus decided
that they could not take up the offered accommodation.
[46] Village who had been joined by the Manoim J order of 18 April , duly filed its
affidavit as required under the order of Manoim J on Wednesday 23 April .
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[47] The facts set out in the affidavit , hastily filed on behalf of Village , the newly joined
owner of the land, was surprising .
[48] Milissa Nel, the managing director of Village had the following to say in relation
to the situation at hand. The land in question was plot 80. There was an adjacent
plot, also owned by Village called plot 87 .
[49] It is alleged by the respondents that plot 87 was the subject of its own land
invasion . The respondents say they are currently seeking to evict the occupiers
of plot 87 and this process is o ngoing.
[50] The respondents allege that the y have been watchfull over plot 80 because they
feared that there w ould be an illegal land grab of this site in the same way as this
took place i n relation to plot 87 .
[51] As I have said, the land in issue is the subject of a developing approp riation .
This is subject to agreed compensation in order to build RDP housing .
[52] Village and the State allege that and the expropriation process in respect of both
plots 80 and 87 has been unfolding under section 19 of the Gauteng
Infrastructure Act 8 of 2001 . The finalisation of the proposed expropriation
depended on the relocation of the occupants on these two plots and especially
the illegal occupants of plot 87.
[53] Ms Nel alleges that both the properties have been beset by what are commonly
called “land invasions ”.
[54] The allegation of the respondents is that this application entails an orchestrated
invasion of the land by persons who are concerted in their approach and aim.
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[55] The aim, it is alleged by the respondents , is the attempt to gain possession of
the land and maintain that possession by way of the court’s processes. I will
expand on this later.
[56] Ms Nel explains that , at the end of October 2024 , consent was granted by Village
to the Municipality , at the instance of the Municipality for three families consisting
of six individuals to erect temporary housing structures on plot 80 - the property
in issue .
[57] This position was formalised in writing by Village and the Municiplaity and the
three families thus obtained the written permission to occupy.
[58] These three written permissions are attached to Ms Nel’s answering affidavits
and are not in dispute.
[59] As I have said , the applicants contend that they too were the recipients of written
permissions to occupy the land. The implication made is that this permission
accrued on a similar basis to that of the three families who had the written
permission .
[60] When Mr T Ntaka , the attorney for the applicants was confronted with the fact
that there were no such written permissions for the applicants, this was
conceded.
[61] Mr Nta ka then said that the permissions relied on had , in fact , been granted by
“community leaders”. He could not explain the basis on which h is clients had filed
an affidavit suggesting that the applicants had been given formal permission
from those in authority to give that permission, to occupy plot 80. This would be
the owner, Village and the Municipality.
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[62] There was , in fact ,no permission to occupy plot 80 either by Village nor the
Municipality save for the th ree fami lies who had written permission.
[63] Ms Nel says that there was , on the contrary, a drive on the part of Village and the
State to finalize the expropriation as soon as possible . This involved active steps
to preserv e the plot from illegal occupation.
[64] The threat of invasions of the property was, says Ms Nel, ever present . As I have
said plot 87 which was adjacent to the subject land had already bee n invaded
and there are ongoing court proceedings to gain the eviction of t he invad ers.
[65] The respondents agree that it was necessary to keep the movements on the
property on consta nt surveillance. Both the State and Village confirm that there
were concerns by the respondents of the ever-present threat of “land grabs”.
[66] The respondent s’ deponents, Ms Nel and Mr Msezana , the Municipal Manager
of the Municipality who makes the answering affidavit for the State respondents
agree that it is common for a st rategy to play out as follows. The land is identified
by participants in the scheme as being a potential target for invas ion; there is
then a concerted invasion over a very short period of time, often hours ; this
invasion entails complicit persons converging on the land so identified for
invasion armed with rudimentary materials that will serve the purposes of the
hasty assembly of what is intended to create the impression of the existence of
an entrenched dwelling ; once this initial traction on the land is gained by the
makeshift erection of this collection of materials , the inevitable demolition of
these structures by the owner or other interested parties results in the demolition
of the makeshift an d hastily erected structures; this action is anticipated by the
invad ers; the stage is then set for an application to court with scant notice to the
Municipality and or owners of the land; the intention is to obtain a final court
order reinstating the structures on the basis of a n alleged spoliation ( recall the
applicant need establish only possession and interference with that possession );
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public holidays and late hours are often chosen for the inevitable element of
surprise and inability to marshal legal and other resources which this entails;
the allegations made by those “grabbing” the land are to the effect that their basic
rights have been disregarded by the municipalities and /or owners; courts, on
the basis that they will inevitably err on the side of protecting those who are
presented as the most vulnerable , will grant the proposed spoliation order; this
will allow the occupation of the land by the applicants and ; from this point
onwards there will be legal battle after legal battle with the occupants –
sometimes over years – to obtain their ev iction. Those in control often monetise
their unlawful possession by “letting out” or even “selling” plots to persons who
then take control through them.
[67] Ms Nel, against this backdrop , tells the court about her watchfulness over the
property . She says that on 11 April 2025 , she was informed by security guards
stationed at the proper ty for the purposes of preventing unlawful occupation that
there had been an invasion of plot 80 and that those invaders had commenced
building makeshift structures which approximated dwellings .
[68] Ms Nel wasted no time. She was , she says aware of the tactic which was
underway. She visited the land and confirmed the invasion . She then immediately
attended a t the local Police Station where she reported the invasion onto plot 80 ,
in the process laying a criminal charge . There is evidence of such report which
conform s to the version of Ms Nel.
[69] Notice was given to the applicants to des ist their activity and leave the site . They
did not comply. On this basis , on 17 April 2025 , the security team , which I assume
included the Red Ants , officials of the Municipality, the SAPS , and other involved
persons and entities embarked upon and carried out an orchestrated demolition
project which was aimed at th warting the invasion.
17
[70] The demolition of what the respondents allege were makeshift, unfinished
structures which were devoid of any discernible occupation , ensued.
[71] Ms Nel, on behalf of the fourth respondent , attached to her affidavit a report of
those who oversaw the demolition project . The report with photographs provided
in support thereof confirmed that, prior to 11 April 2025 , the only occupants on
the land were the three families who had been given permission to occupy, in
writing .
[72] The applicants – based on the founding affidavit of Mr Mathlatjie - then brought
the application on the late night of 17 April 2025 for hearing on the 18 April.
[73] The respondents allege that the photographs of the cement foundations by
which much store was placed in argument on behalf o f the applicants are those
found on plot 87 . They allege that these photographs have been taken in a bid
to suggest that these foundations were laid by the applicants many months ago
so as to contrive the appearance of long-term occupation and undisturbed
possession.
[74] Ms Nel says the following in relation to the thr eat of illegal land invas ions or “land
grabs” :
“This problem has become hampered within the surrounding areas and time and
time again the Municipality and/ or owners of the properties are forced to
approach the court for relief. The situation has become untenable and has
caused the taxpayers large sums of money that the Municipality has to spend in
order to prevent these brazen and illegal invasions . The consequence is that it
delays the infrastructure project to the benefit of the community at large . The
applicant has been left with no option but to approach the Court for a court order .
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The illegal invaders are usually well orchestrated, with the invaders coming in
large numbers and bringing with them their personal belongings and illegally
erecting structures and effects of via taxi s, busses and other modes of transport .
They illegally trespass, enter and begin to occupy the property . They intimidate
law enforcement officials and refuse to leave in the absence of a court order .
They also incite others nearby to come and also occupy the property and
surrounding areas . This has become of grave concern to the applicant , as
experience on plot 87.
Once in occupation , the illegal occupiers claim all sorts of rights and as this case
even go as far as seeking to obtain an interdict to prevent the Municipality …from
protecting its own interest .
In most cases the Municipality being the owner is then forced to approach the
Court on an urgent basis to protect its rights .”
[75] Notwithstanding the filing of this affidavit by Village in accordance with the order
of Manoim J , the applicants chose not file any reply thereto. This is
notwithstanding that it was they who had set the tight timelines for reply .
[76] Neither did they file any confirmatory affidavits of the second to twenty ninth
applica nts in relation to the allegations made by Mr Mathlatjie in the founding
affidavit. This is notwithstanding the undertaking that these affidavits would be
filed.
[77] Thus, i n the circumstances at the hearing of 24 April 2025 , the only applicant
properly before th is court was the deponent to the founding affidavit, Mr
Mathlatjie .
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[78] Notwithstanding this failure to file the information pertain ing to thos e affected ; the
necessary confirmatory affidavits or a reply to the allegations made in answer ,
Mr Mathlatjie apparently found himself able to file a separate application for
contempt of the order of Manoim J.
[79] It was sought in this contempt application that a rule nisi issue calling on the Sta te
respondents to appear and show cause on a date to be determined as to why
they should not be found to be in contempt of the order of Manoim J .
[80] The gravamen of the complaint put forward by Mr Mathlatjie in the contempt
application is that the State respondents did not provide the alternative
emergency accommodation ordered by Manoim J.
[81] The complaint made is that the applicants or some of them and their family
members were forced to sleep in their cars whilst others spent the night of 18
April around a fire in an open field.
[82] In support of this allegation , photographs of three woman wrapped in blankets
sitting around a fire are attached . They are all pictured wearing electronic head
torches such as are commonly used by hikers or runners.
[83] I must state that , on the basis of the impending application and given the serious
allegations made by the applicants and the far-reaching order handed down by
Manoim J interim to the hearing date of 24 April , I was poised to expect and
immediately read the affidavits which were forthcoming in terms of the order.
[84] The applicants did not treat the matter with the same sense of urgency.
20
[85] As I have said, there was no response to the affidavit of the fourth respondent
which was compiled at very sho rt notice and filed in accordance with the time
periods ordered .
[86] The allegations in th e affidavit of Ms Nel were serious – essentially , what was
alleged was an orchestrated land invasion by the applicants which made use of
and abused court procedures in a bid to obtain a legally approved occupation on
the basis of an application in respect of which no opposition was expected.
[87] The applicants were apparently not able to comply with the order by providing
the necessary information and nor did they reply to the damning allegation in Ms
Nel’s affidavit . The only inference to be drawn from this failure to reply is that the
applicants are unable to gainsay the version of the respondents.
[88] The application for contempt sought that the State respondents show cause why
Mr Msezana and Councillor Tapani should not be punitively committed to prison
and remain incarcerate d for a period to be determined by this court and/ or fined.
[89] Notwithstanding the failure to account as to who the applicants and their
dependents were, the State respondents still attempted to afford the applicants
accommodation on agricultural land which was already occupied by an informal
community, but which had capacity to accommodate further occupants.
[90] It is common cause that members of the community in the land offered for
emergency interim accommodation by the Municipality refused the applicants
access to t he land occupied by them on threats of viol ence.
[91] The first and second respondents – i.e. the State respondents filed thei r
answering affidavit on the day of hearing. They explained that the times imposed
were too truncated to allow for the filing of the affidavit the previous day .
21
[92] The applicant’s attorney protested that the applicants had not been given
sufficient time to deal with the answering affidavit. He was however unable to
deal with the fact that the applicants had not answered the fourth respondent’ s
affidavit which had come in in good time to allow it to be meaningfully engaged
with. The fact that the fourth respondent ’s affidavit and that latterly filed by the
State respondents were essentially on all fours as to the central premise – being
that the occupation was an orchestrated land invasion were also not explained
in argument for the applicants .
Concluding remarks
[93] This application to my mind represents criminal behaviour and syn dication. It is
a cynical attempt to gain unlawful possession of land by stealth and orchestration
of the semblance of position which was manifestly false .
[94] The photographic “evidence ” attached to the founding affidavit was staged using
building material brough t onto the site to create the impression of settled
occupation exceeding six months when the occupation in fact took place over
days.
[95] The respondents and their security agents have been maligned even to the point
of threats against their liberty.
[96] The use of court processes and laws which are designed to protect the
vulnerable is deplorable. This is made worse by the fact that the land in question
is that earmarked through consent driven expropriation by the State of open land
for the erection of housing for those in need many of whom have been waiting
for years for housing.
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Heard: 24 April 2025
Delivered: 06 May 2025
APPEARANCES:
Applicant’s counsel: Mr T Ntaka
Applicant’s attorneys: T Ntaka Attorneys Inc
1st to 3rd Respondent’s counsel: Adv K I Kabinde
1st to 3rd Respondent’s attorneys: Motlatsi Seleke Attorneys
4th Respondent’s counsel: Adv L Kellermann SC
Adv E Prophy
4th Respondent’s attorneys: Manong & Badenhorst Attorneys