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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, B HISHO )

Case No.: CA&R 18/2022

In the matter between:

MZINGISI FENI APPELLANT

and

XOLISA KHUNGEKILE RESPONDENT

JUDGMENT

ZONO AJ :

Introduction

[1] This appeal emanates from Middle drift Magistrates Court, the court a quo.
The appellant approached the court a quo on urgent basis for an interlocutory
relief which reads as follows:

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“1. This application be heard as a matter of urgency, and that the forms
and service provided for in the Rules of this Honourable Court be
dispensed with;

2. That a rule nisi do hereby is sue calling upon the Respond ent to show
cause, if any, on 28 /07/2021 at 09:00 hours or so soon thereafter as
the matter may be heard , why;

3. Interdicting and restrainin g the respondent or an y person acting under
his direction and instructions fro m occupying the immovable property
and demolishing the boundary fence of the immovable property of the
late Nkwenkwana Mqabula tha t is now owned by the applicant;

4. Ordering the respondent to erect the applicant’s boundary fence which
the respondent demol ished illegally at the immovable property of the
late Nkwenkwana Mqabula‘s immovable property that is now owned by
the applicant;

5. Authorising and empowering the sheriff or his deputy or the members
of the South African Police Service at Nchungwa Police Station in
Debe Nek, Middledrift to give effect to the terms of this order ;

6. Order the respondent to pay the costs of this application and such
costs to include costs occasioned by the employment of counsel ;

7. Further and/or alternative relief.”1

[2] The application was opposed by the respondent. In so doing the respondent
delivered his notice to oppose and its opposing affidavit to which the appellant
replied. The court a quo , after having heard argument for final relief, delivered
its judgment on 25th May 2022. Aggrieved by the judgment, the appellant

1 Sic.

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delivered his notice of appeal to the Clerk of the Criminal Court on 17th June
2022 .

[3] Having realised that the appeal ha d lapsed, the appellant launched an
application for the reinstatement of the appeal on 5th October 2022 . The
respondent react ed by delivering only a notice in terms of Rule 30(1). Neither
notice to oppose the reinstatement application, n or answering affidavit was
filed by the respondent. The matter was ultimately heard on appea l on 20th
September 2024.

In the court a quo

[4] In support of his application for interdictory relief, the appellant states in his
founding affidavit that his mother, Nos ayini Mqabula , was staying with her
brother , Nkwenkwana Mq abula , at their family home at Ntonga Village in
Middledrift. The appellant is the only one available and present of children
born of his mother. Two of his three siblings are deceased, and the third has
been missing without a trace since 1965. His uncle had a daughter , Nomfazi
Mqabula .

[5] The appellant grew up u nder his uncle, who treated him like his own son.
Appellant ’s mother and her brother (appellant’s uncle) respectively passed on
in 1974 and 1976 . When they passed on, they left the homestead to the
appellant and his cousin , Nomfazi . The applicant took care of the homestead .
Nomfazi passed away in 2015.

[6] It came to appellant ’s attention that the homestead, which he calls the family
home , had been sold. The appella nt enquire d about this rumour from the
traditional authoritie s. The sale was unknown as it was not reported to them.

[7] Most importantly the appellant contends in h is founding affidavit as follows :

“13. After the passing on of N omfazi Mqabula, I became the only rightful
owner of my uncle’s family home and nobody else. If the sale had

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taken place before the passing of Nomfazi M qabula both of us had to
consent to such sale. Nomfazi did not sell my uncle’s family home.

14. In the circumstances, I submit that the purported sale of my uncle’s
family home to the respondent during 2018 or 2019 is unlawful.

15. On 18 July 2021 during the morning, I found Messers Xolile James and
Unathi Beni destroying my fence at my uncle’s family home. I
confronted the m and asked them w ho instructed them to destroyed
fence in my property and they told me that they were hired to do so by
the respondent.

16. I told them to stop as the fence they were destroying belongs to me
and that I am the rightful owner of that pro perty and stopped.

17. Shortly thereafter, I saw Messer’s Xolile James and Unathi Beni
returning to the site accompanied by Mr X elile Khungekile, the
respondent’s brother to continue with the destruction of my fenc ing.

18. Mr X elile Khungekile informed that they have been sent by his brother,
the respondent who had allegedly bought the property, to remove my
fencing. I again told them to stop destroying my fence forthwith as the
respondent is not the owner of that property. They agreed and stop ped.

19. At about 02:00 pm on 18 July 2021, I then went to the Nchungwa
Police Station to lay a charge of unlawful destruction of my property .
However, the police officer who attended to me refused to open a
charge and told me to approach the above Honoura ble Court for an
interdict and that they will only act once they are instructed by the
court. ”2


2 Sic.

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[8] The respondent raised in the court a quo a series of points in limine relating to
self-created urgency, non -joinder and locus standi . The respondent
contended that he bought the immovab le property from Ms Vuyiswa Dli wayo,
who inherited the property from her m other who passed away in 2015.
According to the appella nt Nomfazi Mqabula passed away in 2015 . In the
course of time , the respondent commenced with the renovations of the same
property. This is alleged probably to show that the respondent took
occupation and control of the property.

[9] As proof of the sale of the property, the respondent annexed a document titled
‘Register / duplicate register of permission to occupy an allotment’ . It pertains
to allotment No 2 […], Ntonga Location, Middle drift District , and purports to
show that a decision to transfer the rights on the property was made in favour
of the respondent. It appears ex facie the document that the respondent was
granted a right t o occupy [ permission to occupy] and the right to graze the
stock. It further appears that the respondent was granted permission to
occupy for arable or residential purposes . The confirmation of transfer of
rights is dated 09th July 2021. The appella nt does not dispute the fact that a
proof of transfer of rights on the land relate s to the same land. The register is
alleged to be referring to the property in question, which the appellant did not
deny in his replying affidavit.

[10] The court a quo dismissed the appellant’s application on the basis that he
lacked locus standi to apply for an interdict. The court a quo found that the
appellant ha d failed to show that there was any legal connection between him
and the subject matte r of the interdict , which is the property in question . The
connection constitute s an essential element of locus standi in an application
for an interdict, so it was found.

In this court

[11] Antecedent to the appeal itself , the appellant sought , in a notice of motion , the
reinstatement of the lapsed appeal. The application presupposes that an
appeal had lapsed.

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[12] The appellant contends that he delayed in the prosecution of the appeal by 14
days and further stated that the degree of lateness was not so severe and
excessive and accordingly condonable. The appellant contends that he
delivered the notice of appeal on 17th June 2022 and the notice was filed or
served upon the offices of the Clerk of the Criminal Court.

[13] The appellant sought from the Magistrate the following information in terms of
Rule 51(8) of the Magistrates Court Rules:

“(i) the facts she found to be proved,

(ii) the grounds upon which she arrived at any finding of fact specified in
the notice of appeal as appealed against ; and

(iii) her reasons for any ruling of law or for the admission or rejection of any
evidence s o specified as appealed against.”

[14] The information sought was not delivered by the Magistrate and for t hat
reason the appellant enquired from the Clerk of the Civil Court. The appellant
further states that he was admitted on 25 August 2022 at Life Beacon Bay
Hospital in East London for a major operation ; he was incapacitated until 26th
September 2022.

[15] The reason provided by the appellant for the delivery of the notice of appeal to
the Clerk of the Criminal Court is that the office of the Clerk of the Civil Court
was locked on appellant’s arrival. The Clerk of the Criminal Court under took to
forward it to the Clerk of the Civil Court. The appellant concludes that the
delay in the prosecution of the appeal was caused , firstly, by the failure of the
Magistrate to furnish the information required in terms of Rule 51( 8) of the
Magistrate’s Court Rules. Secondly , the prosecution was delayed as a result
of his admission to hospital.

Discussion and analysis

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Reinstatement of lapsed appeal

[16] Magistrate’s C ourt Rule 51(9) provides:

“(9) A party noting an appeal or a cross -appeal shall prosecute the same
within such time as may be prescribed by rule of the court of appeal and, in
default of such prosecution, the appeal or cross -appeal shall be deemed to
have lapsed, unless the court of appeal shall see fit to make an o rder to the
contrary.”

[17] Rule 50(1) of the Uniform Rules of Court (‘URC’) is worded as follows:

“(1) An appeal to the court against the decision of a magistrate in a civil matter
shall be prosecuted within 60 days after the noting of such appeal, and unless
so prosecuted it shall be deemed to have lapsed.”

This r ule must clearly be read with Rule 51( 9) of the Magistrate’s Court Rules .
The provisions are interrelated.

[18] Rule 50(4 ) of the U RC of court provides:

“(a) The appellant shall, within 40 days of noting the appeal, apply to the
registrar in writing and with notice to all other parties for the assignment of a
date for the hearing of the appeal and shall at the same time make available
to the registrar in writing hi s full residential and postal addresses and the
address of his attorney if he is represented.
……
(c) Upon receipt of such an application from appellant or respondent, the
appeal shall be deemed to have been duly prosecuted .”

[19] It is plain from these p rovisions that an appeal must be prosecuted within the
stated times of noting thereof. By prosecution of an appeal is meant applying

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in writing to the registrar on notice to all other parties for a date of hearing.3 It
is not clear from the record as to w hen a written application for hearing was
made to the registrar of this court. However, it is common cause that the
appeal has lapsed due to the non-prosecution thereof.

[20] Failure to timeously prosecute the appeal is a contravention of Rule 50 (1) of
the U RC, which stipulates the period in question . I have alluded above to the
fact that there is a connection between Rule 50 (1) of the URC and Rule 51 (9)
of the Magistrate’s Court Rules. They should be dealt with and interpreted
juxtapostionally. Accordingly, failure to prosecute the appeal within the
prescribed time means that the appeal has lapsed .

[21] However , Rule 51(9) of the Magistrate’s Court Rules contains a proviso to the
effect that “unless the court of appeal shall see fit to make an order to the
contrary.” This provision confers a discretionary power on the appeal court to
make an order of reinstatement if satisfied by the explanation. The words
“shall see fit” in the provision presupposes that there is an explanation or
application made to court that would persuade the court to re instate the
lapsed appeal. An expl anation or application to re instat e the lapsed appeal
must be made in terms of this subrule.

[22] The appellant ma de the explanation in his founding affidavit. The upshot
there of is that the delay in the prosecution of the appeal was caused by
circumstances beyond his control. I am inclined to grant an order re instat ing
the appeal. A pragmatic approach would be to deal with the matter and
dispose of it on its real merits .

[23] For an order re instat ing the appeal I considered the following:

(i) The possible prejudice to the parties. No party would s uffer any
prejudice as a result of the re instatement of the appeal. No party
complained of prejudice in the event that the appeal was reinstat ed.

3 Hall v Van Tonder 1980 (1) SA 908 (C) at 910 .

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(ii) The stage at which this litigation has reached . I considered this
together with the fact that there is general need for finality in judici al
proceedings. It is in the interest s of all the parties and of justice that
this appeal be dealt with to finality.

(iii) It would generall y be important to consider the costs of the matter,
coupled with the inconveni ence suffered by the court. This court has
read the appeal record. It would be a waste of scarce judicial resources
for another court to have to consider afresh the same record.

(iv) The healing balm of an appropriate order of costs. What t he appellant
sought in this matter is not a righ t but an indulgence. The respondent
will be assuaged by a costs order in his favour in respect of an
application for reinstatement.

[24] The object of the rules is to secure the inexpensive and expeditious
completion of litigation before courts: they are not an end in themselves4.
Rules are designed to ensure the right to a fair hearing and should be
interpreted in such a way as to advance and not red uce, the scope of the right
to fair trial entrenched in section 34 of the Constitution of the Republic of
South Africa5. The r einstatement application succeeds.

Appeal

[25] A very good starting point is paragraph 21 of the founding affidavit for the
application for reinstatement of the appeal which reads as follows :

“21. On 19 September 2022 , the re spondent working together with X olile and
another person removed the applicant’s fence at the Mqabula homestead and
he started erecting his fence”.6

4Hudson v Hudson 1927 AD 259 , at 267 .
5 D F Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2005 (6) SA 297 (SCA) , at 301 G -H.
6 Sic.

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[27] The appellant sought in the court a quo the following relief , inter alia ,

“3. Interdicting and restraining the respondent or any person under his
direction and instruction s from occupying the immovable property and
demolishing the boundary fence of the immovable property of the late
Nkwenkwana Mqabula that is now owned by the applicant ;

4. Ordering the respondent to erect the applicant’s boundary fence which
the respondent d emolished illegally at the immovable property of the
late Nkwenkwana Mqabula’ s immovable property that is now owned by
the applicant .”

[28] Paragraph 3 of the notice of motion seeks an interdict against occupation of
the property and demolition of the bou ndary fence of the property. I will deal
later with the occupation. In what follows I deal with the demolition of the
boundary fence.

[29] In addition to paragraph 19 of the found ing affidavit for the reinstatement
application, paragraph 4 of the notice of motion implies that demolition of the
boundary fence had already occurred hence the relief sou ght for the erection
of the demolished fence . The appellant seeks interdictory relief for something
that has already been done.

[30] An interdict is not a remedy for past invasion of rights, but is concerned with
present or future infringements7. A prohibitory interdict is described as an
order re quiring a person to ab stain from committing a threatened wrong or
from continuing an existing one8. It is plain from the facts of this matter as
adumbrated above that the demolition of the boundary fence of the
immo vable property ha s been carried out to a finish. Accordingly, it cannot be

7 National Council for the Prevention of Cruelty to Animals v Openshaw 2008 (5) SA 339 (SCA) ,
at 349 H -I; Global Environment Trust v Tendele Coal Mining (Pty) Ltd 2021 (2) A ll SA 1 (SCA) ,
at para 125 .
8 Natures Choice Properties (Alrode) (Pty) Ltd v Ekurhuleni Municipality 2010 (3) SA 581 (SCA) ,
at 588 B -D.

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interdicted. The appellant is at liberty to pursue a remedy for damages if time
allows for that; and if so advised .

[31] In paragraph 4 of the notice of motion the appellant seeks an order directing
the erection of the b oundary fence. The rationale behind this relief is illusory ,
especially in the light of paragraph 21 of the found ing affidavit for the
reinstatement application. That paragraph is quoted in full in paragraph [25]
above. The essence of paragraph 21 referred to above is that after the
respondent ha d caused the boundary fence to be destroyed or demolished,
he sta rted erecting his own fence . The practicality of this relief is doubtful as it
is clear from the appellant himself that a fence was rebuilt after the first or old
one was demolished. No assistance was received from appellant’s counsel in
this regard. There is no practical value of gra nting that relief if what is sought
is already there. That relief must fail on this basis.

[32] With regard to an interdict against occupation of the property the respondent
asse rts as follows in his answering affidavit to the application for interdictory
relief :

“40. On or about 23rd September 2019, the applicant9 bought an immovable
property situated at Ntonga Administrative Area in Middledrift. The
seller of the property is Ms Vu yiswa Dliwayo , who inherited the
property from her mother who passed away in 2015. Sometime this
year, the respondent commenced with renovations on his new
property… ’

41. Following the respondent’s attempts in renovating his newly bought
immovable property , the applicant brought an urgent application
against the respondent seeking essentially the restraining order,
prohibiting applicant f rom the property and also claiming damages for
the fence , in one perplexing application … ” 10

9 From the allegations of fact and arguments made in the answering affidavit, it is apparent that the
deponent intended to refer to ‘the respondent’.
10 Sic.

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[33] The assertions are not gainsaid. The essence of the respondent’s assertions
is that the respondent is in charge or control of the property. The respondent
has taken control of the property , and accordingly is in possession of the
property. The physical element of possession (corpus or dentio)11 implies
physical control rather than physical prehension12. During the hearing of this
appeal , appellant’s counsel iterated and confirmed that the appella nt was
locke d out by the respondent. The net effect of all this is that the respondent
is already in possession, which implies occupation of the property.
Accordingly, an event of occupation, which is an incident of possession ,
cannot be interdicted as it constitutes past invasion of the rights . The
applicant misconceived his remedy in this regard. A mandament van spolie
would have been more appropriate, depending on whether , when the
respondent was taking occupation or possessi on of the property , the appellant
enjoyed undisturbed possession of the property.

Section 16 (2) (a) ( i) of the Superior Courts Act 10 of 2013

[34] Section 16 deals with appeals generally. Subsection (2) thereof provides as
follows :

“(a)(i) When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result, the appeal may be
dismissed on this ground alone”.

[35] On the facts of this case the horse has bolted. There would be no practical
effect to grant orders sought in paragraphs 3 and 4 of the notice of motion ,
which paragraph s forms the gravamen of appellant’s relief. The occupation
and demolition by the respondent have already occurred. They are past
events and cannot be interdicted . The erection of the fence has a lready been
done by the responden t. It serves no practical purpose t o direct the

11 Dennegeur Estate Homeowners Association v Telkom SA Soc Ltd 2019 (4) SA 451 (SCA) , at
455 A -B.
12 Mbuku v Mdinwa 1982 (1) SA 219 (TKS) , at 221 .

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respondent to erect the boundary fence because it has already been erected.
On this basis appellant’s appeal cannot succeed and must therefore fail with
costs.

[36] Even if I am wrong on the above finding , the appeal would stil l fail on different
ground s. The requisites of the final interdict are not satisfied.

Final Interdict

[37] The appellant approached the court a quo for a final interdict. In his papers ,
the appellant sought mandatory and prohibitory interdicts. That is so in light of
the relief sought i n the notice of motion referred to above. The relief sought in
paragraph 3 of the notice of motion is in the nature of a prohibitory interdict,
whereas in paragraph 4 the appellant seeks a mandatory i nterdict against the
respondent.

[39] A prohibitory interdict is an interdict in the more restricted sense and may be
described as an order requiring a person to abstain from committing a
threatened wrong or from continuing an existing one13. On the other hand a
mandatory interdict14 is an order requiring a person to do some positive act to
remedy a wrongful state of affairs for which he is responsible , or to do
something which he ought to if the complainant is to be able to exercise his
rights. It has been said that a mandatory interdict can serve to compel the
performance of a s pecific statut ory duty, and to remedy the effects of unlawful
action already taken15. A mandatory order can only be granted if all the
requisites of an interdict have been established16.

[40] A final interdict , sometimes referred to as an absolute or perpetual interdict, is
a final determination of the rights of the parties to the litigation17.I will deal

13 Erasmus : Superior Court Practice and Edition…. [TBC] .
14 Jordaan v Penmill Investments CC 1991 (2) SA 430 (E) , at 436 E .
15 Baxter: Administrative Law 690 [TBC] .
16 Kaputauza v Executive Commit tee of the Administration of Hereros 1984 (4) SA 295 (SWA) ,
at 317F -H.
17 John Meyer Interdicts and Related Orders Page 55 [TBC] .

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hereinafter with the right the appellant sought to enforce, and whether the
appellant has proved the existe nce of that right.

[41] There are three requisites for the grant of a final interdict, all of which must be
present18.

“(a) A clear right on the appellant;

(b) An injury actually committed or resonantly apprehended; and

(c) The absence of any other sastisfactory remedy available to the
appellant ”.

Clear right

[42] The appellant asserts himself as the owner of the immovable property in
question. The essence of his contention is that he acquired the ownership of
the land through inheritance. The following allegation s contained in the
founding affidavit are fundamentally important.

“5 My mother’s brother Nkwenkwana Mqabula ( my uncle) has his own
child namely, Nomfazi Mqabula , born in 1945 and passed on about
2015.

6. I grew up at my uncle’s family home and my uncle acted as my father.
Both my uncle and my mother died in 1976 and 1974 respectively. My
uncle left the family home to me and Nomfazi. I continued to take care
of my uncle’s home. The only house we had was des troyed by wind but
I fenced the yard and securely all the remaining material of the house .
…………….
13. After the passing on of Nomfazi Mqabula , I became the only rightful
owner of my uncle’s family home and nobody else. If the sale had

18 Prest: Interlocutory Interdicts Page 63 -72 [TBC] ; Setlo gelo v Setlo gelo 1914 AD 221 , at 227 .

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taken place before the passing of Nomfazi Mqabula both of us had to
consent to such sale. Nomfazi did not sell my uncle’s family home.
………………..
15. On 18th July 2021 during the morning , I found Messrs Xolile James and
Unathi Beni destroying my fence at my uncle’s family ho me. I
confronted them and asked them who instructed t hem to destroyed
fence in my property and they told me that they were hired to do so by
the respondent.

16. I told them to stop as the fence they were destroying belongs to me
and that I am the rightful owner of that property and stopped. ” 19

[43] I may mention in passing that the appellant is not , on his own version, a direct
descendent of Nkwenkwana Mqabu la, who is alleged to have been the owner
of the immovable property or the land. Whether or not rural land can lawfully
be owned by a private individual or a resident of that village is a topic for
another day. That is not a matter before us. It does not appear that t he land
was acquire d through a Will by the appellant. However, the appellant sought
to enforce his alleged right of ownership.

[44] In dispelling the appellant’s claim of ownership to the land or immovable
property , the respondent asserts that on 23rd September 2019 he boug ht the
said immovable pro perty from Vuyiswa Dliwayo . The seller is alleged to have
inherited the land from her mother , who passed on in 2015. According to the
appella nt, Nomfazi Mqabu la passed on in 2015. Nomfazi Mqabu la was the
daughter of Nkwenkwana Mqabu la, who was allegedly the owner or rightful
occupant or possessor of the land or immovable property. It is reiterated that
the appellant pertinently contended that “my uncle left the family home to me
and Nomfazi” . This was said notwithstan ding the fact that the appellant is not
a direct descendent of Nkwenkwana, but Nomfazi.


19 Sic.

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[45] From the above scenario, it is inescapable that Vuyiswa is the daughter of
Nomfazi and a grandchild of Nkwenkwana . Respondent ’s annexure “XK2” is
written in Xhosa and no attempt was made to translate the Xhosa version into
English for purposes of a proper record and for the benefit of the court. In
court , the respondent’s counsel was requested to ensure that an English
version of all Xhosa writt en documents be made available. That appears not
to have been done .

[46] Annexure “XK2” appears to be a certificate by the Ntonga Residents
Association , dated 08th February 20 19, penned by its secretary K Mlambo. Its
essence is to certify that Vuyiswa Dliwayo informed the local committee that
she h ad sold her homestead to Xolisa Kungekile with their consent on 23rd
September 2019. An association’s stamp is appended, and the membe rs of
that local committee are listed therein. This was, however, denied in reply.

[47] Annexure “XK1”20 to the respondent’s answering papers appears to be an
extract from a register or duplicate register of permission to occupy allotment
No 2 […]. There is no supporting or confirmatory affidavit from the author and
its contents must be treated as hearsay . Nevertheless, from the appellant’s
replying affidavit , it seems to be common cause that the extract refers to the
immovable property in question. It indicates that on 09 July 2021, the Office of
the Director of Communication and Customer Care Service s of the
Department of Rural Development and Agrarian Reform , Eastern Cape
registered a voluntary transfer of the i mmov able property and confirms the
occupation of the property in favour of the respondent.

[48] The Department registered the transfer of the immovable property to the
respondent and at the same time granted the respondent permission to
occupy that property for arable and residential purposes. The respondent , on
the face of it, is the sole beneficiary of the process of the registration of
immovable property and he appears to be the only o ne who has been granted
a right to occupy the immovable property. He enjoys an exclusive right to

20 This seems to have been marked in error. It follows existing annexures “XK 1” and “XK 2” and
should probably have been described as “XK 3”.

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occupy and possess the immovable property. On th is score , applying the
principles of well -known case law, the respondent’s allegations must be
accepted . Both the local association and the Department seem to have
confirmed that the respondent is the rightful occupier of the land .

[49] The extract from the Department’s register appear to indicate that the
respondent’s permission to occupy is still e xtant. If the appellant was not
happy with th e decision taken in that regard , he should have applied for it to
be set aside , otherwise it must be given effect .

[50] For, it is well settled in our law that until a decision is set aside by a court in
proce eding s for judicial review , it exists in fact, it has legal consequences that
cannot simply be overlooked .21 The respondent is validly occupying and
possessing the property in question. His occupation of the property cannot be
impugned. Occupation is a consequent act , dependant on the factual
existence of the grant ing and registration of the right to occupy by the relevant
government authorities or organs of state ; the decision to grant and register
the respondent’s right is an initial act. In those circumstances the consequent
act has legal effect so long as the initial act is not set aside by a competent
court22. Accordingly, the relief sought in paragraph 3 of the notice of motion
cannot succeed.

[51] Having found that the respondent has a right to occupy the immovable
property for arable and residential purposes, it follows that the respondent has
a conting ent right to reside in a habitable, clean and secured residential place.
It is so because section 12 of the Constitution guarantees a right to be free
from all forms of violence. Section 24 of the Constitution guarantees a right to
an environment that is not harmful to their health or well -being . He has a right
to reside in a property free of nuisance. That is an incident of lawful
possession and occupation. It fits comfortably with the fact that the
respondent contended that he commenc ed with the renovations of his new

21 South Africa Broadcasting Corporation Soc Ltd and others 2015 (4) A ll SA 719 (SCA) [TBC] ;
2016 (2) SA 522 (SCA) , para 45; Oudekraal Estates Pty Ltd v City of Cape Town and Others
2004 (3) A ll SA 1 (SCA); 2004 (6) SA 222 (SCA) , para 26 .
22 Oudekraal , supra, para 31 .

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property. Renewing the fencing to make it secure and clearing the property is
part and parcel of exercising a right to occupy. All of these are giving effect to
the respondent ’s right to occupy.

[52] In conclusion , I find that the appellant has failed to establish that he has a
clear right to the property. His version in this regard is palpably implausible,
farfetched and clearly unt enable and it cannot be accepted23. Motion court
proceedings, unless concerned with interim relief, are all about the resolution
of legal issues based on common cause facts24. The r espondent’s version
prevails. It is accordingly not necessary to deal with the other requisites of a
final interdict as the first one is not present. They must exist conjunctively. The
absence there of disentitles the appellant to the relief he is seeking.

[53] The court a quo dismissed the appellant’s matter on the basis that the
appellant lacked locus standi when applying for an interdict. The court a quo
declined to deal with the merits of the case.

[54] I do not agree that the appellant lacked locus standi to institute the instant
proceedings in the court a quo. I find solace for this finding on the pleade d
case of the appellant that has not meaningfully been gainsaid by the
respondent.

[55] The appellant asserts that he grew up in his homestead under his mother and
uncle, who both died in 1974 and 1976 respectively , leaving the property to
him and his cousin , Nomfazi. They stayed on the property until Nomfazi
passed away in 2015. No evidence has been tendered that he never stayed
there. It means that the appellant was, for some period at least , a bona fide
possessor of the property. I am therefore satisfied that the appellant has a
direct and substantial interest in the matter.

[56] Locus standi concerns the direct and material interest of a party in the matter.
The appellant clearly has locus standi in the matter. H e accordingly has a

23 Plascon - Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) , at 634-5.
24 National Director of Public Prosecutions v Zum a 2009 (2) SA 277 (SCA) , para 26 .

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right to sue and to be sued. For the reasons set out above, however, there
was no merit to his application for interdictory relief .

[57] On the conspectus of all the above, I come to the conclusion that the
appellant’s appeal cannot suc ceed. I see no basis for costs not to follow the
result.

[58] In the result I make the following order:

(a) The appeal is dismissed with costs, such costs to include the
costs of the reinstatement application .


___________________________ __________________
A S ZONO
ACTING JUDGE OF THE HIGH COURT


LAING J :

[59] A comprehensive description of the background facts and argument appears
in the judgment of my brother, Zono AJ, which I have had the benefit of
reading. In that regard, I agree with the conclusions reached and the order
made but differ to some extent with the reasoning.

[60] The appellant sought final interdictory relief. As my brother pointed out, a
fundamental shortcoming in the appellant’s case was that he failed to
establish a clear right to the property. He made repeated averments to ‘my
uncle’s home’ but provided no evid ence whatsoever regarding how ownership
consequently became vested in him. As a starting point, it is not apparent
whether his uncle, the late Mr Nkwenkwana Mqabula, was previously the
registered owner or whether he was the holder of an informal land right . If the
former, then there was no indication that the property was ever transferred to
the appellant. If the latter, then presumably the provisions of the Interim

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Protection of Informal Land Rights Act 31 of 1996 (‘IPILRA’) would apply;25
there was, howev er, simply no evidence of how the appellant could enforce
the alleged right of ownership in terms thereof.

[61] Instead, the appellant seemed to rely loosely on the principles of succession
to assert that he was owner. He alleged that his mother had staye d with his
uncle on the property before passing away in 1974 and that he was her only
known surviving child. His uncle passed away in 1976, leaving a daughter, Ms
Nomfazi Mqabula (‘Nomfazi’). She, in turn, passed away in 2015. The
appellant appeared to bas e his case on the fact that he was the only surviving
child of his extended family and that this somehow conferred ownership upon
him.

[62] The argument completely ignores, however, the provisions of the Intestate
Succession Act 81 of 1987 (‘the Act’). In the absence of any evidence of a will
or other indication to the contrary, it must be inferred that Mr Mqabula died
intestate. If he had left a spouse and descendants, such as his daughter, then
they would have inherited their respective shares of the est ate in accordance
with the not uncomplicated provisions of section 1(1) of the Act. If anyone had
enjoyed a right to the property for purposes of the present application, then it
would have been the estate of the late Mr Mqabula’s daughter, Nomfazi,
altern atively her beneficiaries if she had left a will, alternatively her
descendants if she, too, had died intestate in 2015.

[63] There was, ultimately, no evidence whatsoever of the appellant’s ownership of
or entitlement to the property. He also never aver red that he had occupied or
been in possession of the property at the time of the alleged unlawful conduct
of the respondent. These factors, on their own, should have prevented the
appellant from obtaining the final interdictory relief that he sought. In a ddition,
the well -established principles set out in Stellenbosch Farmers’ Winery Ltd v
Stellenvale Winery (Pty) Ltd ,26 and later amplified in Plascon -Evans Paints Ltd

25 An ‘informal right to land’ is clearly defined in terms of section 1 of IPILRA.
26 1957 (4) SA 234 (C), at 235. The decision has been followe d on numerous occasions.

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v Van Riebeeck Paints (Pty) Ltd ,27 militate against the appellant’s case. These
were neatly summarized by Van Loggerenberg as follows:

‘If the material facts are in dispute and there is no request for the
hearing of oral evidence, a final order will only be granted on notice of
motion if the facts as stated by the respondent together with the facts
alleged by the applicant that are admitted by the respondent, justify
such an order unless, of course, the court is satisfied that the
respondent’s version consists of bald or uncreditworthy den ials, raises
fictitious disputes of fact, is so far -fetched or so clearly untenable or so
palpably implausible as to warrant its rejection merely on the papers .’28

[64] If the fundamental shortcomings in the appellant’s evidence, as well as the
principle s described above, are properly considered, then the conclusion that
he was never entitled to the interdictory relief sought becomes irresistible. I
am in full agreement with my brother, Zono AJ. The appeal cannot succeed.


___________________________
LAIN G J
JUDGE OF THE HIGH COURT


APPEARANCES:

For the Appella nt : Adv Nduzulwana
Instructed by : SITHEMBELE ZIBI ATTORNEYS INC
12 Alamein Crescent
Qonce
TEL: 043 051 3532
EMAIL: sszattorneys@gmail.com

27 1984 (3) SA 623 (A), at 635C.
28 DE van Loggerenberg, Erasmus: Superior Court Practice (Juta, 2ed, vol 2, service 20, 2022), at
D1-70.

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For the RESPONDENT : Mr Tshiki
Instructed by : TSHIKI & ASSOCIATES INC
Respondent attorney
3 Scherwitza Road
Berea
East London
Tel:043 721 1270
Email: law@tshiki.co.za
c/o BAKUMENI ATTORNEYS
19 Leopollo Street
King Williams Town

Matter heard on : 20 September 2024
Delivered on : 22 January 2025