IN THE HIG H COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number: 19970/2024
In the matter between:
VUKILE P ROPERTY FUND LTD Applicant
and
GUGULETHU RESIDENTS First respondent
MR NTSHAWUZANA Second respondent
MR MADODA -BULLET Third respondent
MR NQUNQA Fourth respondent
UNKNOWN SUPPORTERS OF GUGULETHU RESIDENTS Fifth respondent
SOUTH AFRICA N POLICE SERVICE (STATION Sixth respondent
COMMANDER, GUGULETHU)
MINISTER OF POLICE Seventh respondent
JUDGMENT DELIVERED ON 20 MARCH 2025
OFF'ICE OF THE CHIEF JUSTICE
REPUBLJ C OF SOUTH AFRJ.CA
VAN ZYL AJ :
Introductio n
1. This is the return day of a rule nisi granted on 16 September 2024, in terms of
which an urgent interim interdict was granted, as follows:
"2. That a Rule Nisi is issued calling upon all interested
parties to show cause, if any, on Monday, 4 November
20241 why an order in the following terms should not be
granted:
2.1 The First to Fifth Respondents are interdicted from
engaging in any acts of intimidation, disruption
and/or violence in respect of 61 Gugulethu Square,
corner of NY1 and NY6, Gugulethu, Cape Town,
commonly known as the Gugulethu Mall ("the
Gugulethu Mall") and/or to incite others to engage
in such acts.
2.2 The First to Fifth Respondents are interdicted from
interrupting the Gugulethu Mall and/or preventing
access to the Gugulethu Mall and/or to shut it down
and/or to incite others to engage in such acts.
2.3 The F irst to Fifth Respondents are interdicted from
intimidating, threatening, harassing and/or
assaulting any person involved in and/or related to
the Gugulethu Mall, and/or to incite others to
engage in such acts.
1 The rule was subsequently extended.
2.4 The First to Fifth Respondents are to comply with
the relevant statutory provisions including, but not
limited to, the Regulation of Gatherings Act 205 of
1993.
2.5 The Sixth Respondents is authorised and directed
to do all things necessary so as to ensure
compliance with paragraphs 2.1 - 2.4 supra,
including, but not limited to placing under arrest
those contravening the said paragraphs.
2.6 Those opposing this application are to pay the costs
occasioned by it, jointly and severally, the one
paying, the others to be absolved. "
2. The first to fourth respondent s have since delivered answering affidavits, as
well as a supplementary affidavit in which they comment on the applicant’s
replying affidavit.
3. The question is whether a final interdict should be granted.
The respondents’ representative
4. The respondents were represented at the hearing by their ward councillor, Mr
Mjuza, who is not a legal practitioner . Lay persons are not generally entitled
to represent other person s in litigation. In Manong & Associates (Pty) Ltd v
Minister of Public Works and another the Supreme Court of Appeal2 held as
follows in relation to the High Court’s inherent powers to regulate its own
process:
“[14] I have expressly refrained from formulating a test for the exercise of the
court's inherent power as I believe that such cases can confidently be left to
2 2010 (2) SA 167 (SCA) at paras [14] -[15]. Emphasis added.
the good sense of the judges concerned. Lest this be misconstrued as a tacit
or general licence to unqualified agents, it needs be emphasised that in each
such instance leave must be sought by way of a properly motivated, timeously
lodged formal application showing good cause why, in that particular case, the
rule prohibiting non -professional representation should be relaxed. Individual
cases can thus be met by the exercise of the discretion in the circu mstances
of that case. It would thus be impermissible for a non -professional
representative to take any step in the proceedings, including the signing of
pleadings, notices or heads of argument … without the requisite leave of the
court concerned first hav ing been sought and obtained .3
5. No application had been made prior to the hearing to obtain permission from
the Court for Mr Mjuza to appear, in accordance with the approach set out in
Manong . I nevertheless allowed Mr Mjuza to make submission s in relation to
the merits , because the matter was ripe for hearing, and there were several
members of the public ( comprising the first to fifth respondents and those
supporting them) in at court. They had taken trouble to attend the
proceedings (no doubt incurring expenses in doing so) and were expecting Mr
Mjuza to present their case to the Court . In was in the interests of justice that
the mater be dealt with.
Background
6. The applicant is the owner and operator of a retail centre known as the
Gugulethu Mall . The Mall has been operating for several years , and serves
the Gugulethu and surrounding communities.
7. During 2023 and early 2024 the applicant received demands from what
appear ed to be various community associations going by different names.
They demanded, amongst other things, the employment of a greater
proportion of local Gugulethu residents at the Mall. The applicant ’s
representative s met w ith representatives of th ese associations, together with
3 See also the discussion in Navy Two CC v Industrial Zone Ltd [2006] 3 All SA 263 (SCA) at
paras [9] -[13].
the Gugulethu Square ward councillor (who, as appears from the
respondents’ answering affidavits, was in fact Mr Mjuz a) and other
stakeholders on 26 February 2024 (the respondents indicate that the m eeting
was held on 29 February 2024, but nothing turns on this ). This was thought to
be a fruitful meeting at the time, and the applicant's representative left with the
impression that the associations’ concerns ha d been addressed.
The letter of 27 August 2024
8. On 27 August 2024 , however, the applicant received a letter from another
association going by the name of "Gugulethu Residents" , that is, the first
respondent. The letter was signed by the second, third and fourth
respondents.
9. The letter desc ribed itself as being a “final meeting invitation ”, and took issue
with the make -up of the staff employed at the Mall. It demanded that 80% of
the employees shou ld be made up of Gugulethu residen ts, and that all
seasonal jobs should b e reserved for Gugulethu yout h only. It further
demande d that ”Gug ulethu Business owners" should be consulted when office
or store space became available, seemingly before it is rented out to non -
"Gugulethu Business own ers". Who the “Gugulethu Business owners” were
was not explained. The letter demanded, lastly, that a portion of the Mall’s
proceeds should be paid “ towards educational purposes in a form of
scholarships, bursaries and youth programmes from the Gugulethu
community” .
10. In the supplementary affidavit delivered by the respondents in March 2025,
they reiterate these demands.
11. The letter requested a meeting with the applicant by 16 September 2024 , and
concluded: “ Failure to honour the invitation will result i n the mall being shut
down for as long as necessary. Its existence might well be ceased if it will not
benefit the community at large. We will not be silenced. Enough is enough" .
12. The final words of the letter raised a red flag to the applicant. It feared that
the Mall and its occupants might be in danger.
13. The applicant thus made i nformal attempts to reach out to the first to fourth
responde nts to address their concerns. When this was unsuccessful, the
applicant requested its managing agent to send a formal response to the letter
on 9 September 2024 , seeking an undertaking that the M all would not be shut
down , and that there w ould be no other form of interference with the Mall's
business. The response was conciliatory and attempted to address all of the
demands made in the respondents’ letter, indicating that the problem was a
complex one which could not be resolved by the Mall ownership alone. The
various tenants, as well as the community at large and the social projects in
which the Mall was invol ved, also had a role to play. The applicant indicated
in the letter that, should no undertaking be given, it would be compelled to
institute an urgent application to obtain interdictory relief.
14. No undertaking was given . The applicant also sought assist ance from the
South Africa Police Service, with no success. In the meantime, the applicant
was in contact with the local ward coun cillor, who offered to mediate the
situation. The applicant delayed the institution of t his application with the hope
that this meeting would resolve the issue . However, the meeting, which was
scheduled for 11 September 2024, did not take place.
15. The applicant launched the application as a matter of urgency on 12
September 2024 , given that the respondents’ threatened dat e of 16
September 2024 was fast approaching. Despite prior service of the
application on the first to fifth respondents' legal representative at the time , as
well as email service on Mr Mjuza, there was no appearance for the
respondents when the matter wa s called on 16 September 2024 . The interim
order was accordingly granted.
The respondents’ opposition to the application
16. The first to fourth respondents' answering affidavits are similar in content.
They contain, for the most part, a historical synopsis of the Gugulethu area ,
and repeat the respondents' concerns which underlie the threat of protest
action in the August 2024 letter . Although the respondents state that they
oppose the application, it is not clear from the affidavits what the basis for the
opposition is . The factual averments made in the applicant’s founding affidavit
are not disputed.
17. The applicant delivered a brief replying affidavit in which it highlights the
efforts made to avoid litigation and to find an amicable so lution, even after the
application was launched. It points out that the scheduled meeting of 11
September 2024 never happened , despite the applicant's commitment t o
attend it. Instead, a meeting was held on 7 November 2024 where the
applicant ’s representa tive and several community members were present.
The difficulties between the parties could not be resolved there .
18. Mr Mjuza’s submissions at the hearing amounted mainly to a plea that the
Mall should be compelled to act as a socially responsible citizen. It should act
honestly and respectfully towards the community. Mr Mjuza explained that
the community expected a contribution from the Mall to the social uplifment of
the area and the education of its youth , and he repeated the demands made
in the correspondence and the respondents’ affidavits . He accused the
applicant of telling untruths in the replying affidavit as regards the applicant’s
attempts to communicate with the r espondents and with members of the
community. He questioned the applica nt’s respect for the community and its
willingness to engage with the people within the area.
19. Insofar as the respondents’ denials of the applicant’s interactions with the
community as set out in the replying affidavit m ay conceivably be regarded as
a factu al dispute on the papers,4 it does not take the matter anywhere. Even
if the replying affidavit is disregarded in its entirety, the applicant’s factual
averments as put up in the founding affidavit remain unaffected.
4 Plascon Evans Paints (Tvl) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E -
635C.
20. The respondents’ affidavits do not d eal with the implications of the final words
of the August 2024 letter. Upon questioning from the cour t, Mr Mjuza d enied
that t he letter constituted a threat. He contend ed that it was simply an attempt
to seek attention. He added, however, that the community had been patient
for a vey long time, and that they could not be blamed for what might happen
should they be forced to confront the applicant.
21. To date, no undertaking has been given to the effect that the respondent will
not resort to the unlawful conduct referred to in the notice of motion. The
applicant argues that the threat of violence and intimidation thus remains.
The requirements for the grant of a final interdict
22. The requirements for the grant of a final interdict are well established: a clear
right, an injury (or damage) actually committed or reasonably apprehended,
and the absence of a satisfactory alternative remedy.5
A clear right
23. It is clear from the terms of the interim order that the respondents have no
right to undertake the activities which the applicants seek finally to interdict.6
24. Section 17 of the Constitution of the Republic of South Africa, 1996, affords
everyone the right to protest, but this is not an absolute right. It is limited to
lawful, unarmed, and peaceful protest: "Everyone has the right, peac efully and
unarmed , to assemble, to demonstrate, to picket and to present petitions."
25. This was recognized by the Supreme Court of Appeal in Hotz and others v
University of Cape Town:7
5 Setlogelo v Setlogelo 1914 AD 221 at 227.
6 Go Touchdown Resort Seasons CC and another v Farm Rural Informal Dwellers Association
and another [2022] ZAGPPHC 50 (20 January 2022) at para [42].
7 2017 (2) SA 485 (SCA) at para [62] . Emphasis added. The matter was taken on appeal to
the Constitutional Court, but only in respect of costs ( Hotz and others v University of Cape
Town 2018 (1) SA 369 (CC)) .
“[62] Protest action is not itself unlawful. … the right to protest against
injustice is one that is protected under our Constitution, not only specifically in
s 17, by way of the right to assemble, demonstrate and present petitions, but
also by other constitutionally protected rights, such as the rig ht of freedom of
opinion (s 15(1)); the right of freedom of expression (s 16(1)); the right of
freedom of association (s 18); and the right to make political choices and
campaign for a political cause (s 19(1)). But the mode of exercise of those
rights is also the subject of constitutional regulation . Thus the right of freedom
of speech does not extend to the advocacy of hatred that is based on race or
ethnicity and that constitutes incitement to cause harm (s 16(2)(c)). The right
of demonstration is to be exercised peacefully and unarmed (s 17). And all
rights are to be exercised in a manner that respects and protects the
foundational value of human dignity of other people (s 10) and the rights other
people enjoy under the Constitution . In a democracy the r ecognition of rights
vested in one person or group necessitates the recognition of the rights of
other people and groups, and people must recognise this when exercising
their own constitutional rights. … 'every right must be exercised with due
regard to th e rights of others'. Finally the fact that South Africa is a
society founded on the rule of law demands that the right is exercised in a
manner that respects the law. ”
26. The Supreme Court of Appeal emphasized8 that disputes are to be resolved
without resor ting to self -help:
"Section 34 of the Constitution guarantees access to courts, or, where
appropriate, some other independent or impartial tribunal, for the resolution of
all disputes capable of being resolved by the application of law. The
Constitutiona l Court has described the right as being of cardinal importance
and 'foundational to the stability of an orderly society' as it 'ensures the
peaceful, regulated and institutionalised mechanisms to resolve disputes
without resorting to self -help'. It is 'a bulwark against vigilantism, and ...chaos
and anarchy'. Not only is the Constitution the source of the university's right to
8 Hotz supra at para [39]. Emphasis added.
approach the court for assistance, in doing so it is exercising a right that the
Constitution guarantees. In granting an interdict the court is enforcing the
principle of legality that obliges courts to give effect to legally recognised
rights. In the same way the principle of legality precludes a court from granting
legal recognition and enforcement to unlawful conduct. To do so is 'the very
antithesis of the rule of law' ."
27. In their answering papers, the respondents do not deny that their August 2024
letter is in fact a threat (express or implied) to shut down the Mall, to intimidate
patrons and tenants, and to cause da mage and destruction to the Mall itself. I
have referred to what Mr Mjuza submitted in respect thereof. His submissions
did not did not relieve the sense of unease created by the letter.
28. In my view, t hat the letter contain s such a threat cannot be denie d.
29. The facts of Border -Kei Chamber of Business and another v Komani Protest
Action Group and others9 are in many respects similar to those in the present
matter. That case too involved a protest group making a veiled threat that
"they [the businesses] were not forced to close but at the same time they
would be opening their businesses at their own risk ". The respondents added
that "they would not be responsible for anythin g that may transpire in their
shops because when one stands in the way of the community while people
are protesting for their rights, he becomes the victim" .10
30. The court in Border -Kei recognised that this was a form of intimidation to force
the businesses to close their doors in solidarity with the protestors'
grievances. The court granted an interdict. In so doing, the court reaffirmed
the constitutional right to protest, but held that it must b e done within the
confines ·of the law , and without infringing the rights of others: "It is not for the
respondents to determine their closure during a protest. By imposing their will
on the businesses, the respondents were actually interfering with those
9 [2023] ZAECGHC 52 (23 May 2023).
10 Border -Kei supra at para [4].
businesses' rights to trade. "11
31. In the present matter, the threat is even more direct than in Border -Kei, and
the same principles apply.
32. l heard Mr Mjuza’s submissions . I understand that the respondents are
frustrated by what they regard as failure of the applicant properly to interact
with the m and the community at large, and to act on to their demands . Mr
Mjuza urged the Court to direct the applicant to engage with the respondents ,
accusing the applic ant of hiding behind the judiciary so as to shirk its
responsibility to the community. It is, however, not for this Court to involve
itself in the exact nature of the respondents ' grievances, nor is it for the Court
to determine whether the grievances ar e justified. Given the nature of the
disputes, that is not an exercise which can be undertaken on the papers, and
it is in any event not the issue for decision before me. In Hotz12 the Supreme
Court of Appeal remarked in relation to a plea that the parti es should be
directed to engage:
“Counsel seized on this passage to argue that instead of an interdict the court
should order the university and the protesters, including the appellants, to
engage constructively with one another to resolve the issues that form the
subject of the protests. But it is one thing for a judge to express the hope that
parties may, by sensible engagement with one another, resolve their
differences without any need for the court to intervene, and another thing
altogether to refuse a litigant relief to which it is in law entitled, on the basis of
a view that constructive engagement, third-party mediation or the application
of common sense would be a preferable means of addressing the differences
between the parties . Courts sometimes suggest to parties that there are ways
other than litigation to resolve grievances and redress wrongs, but all they can
do is encourage the parties to explore these alternatives. They cannot impose
them upon the parties. In particular th ey cannot deny a legal remedy to a
litigant entitled thereto on the basis that it should seek a remedy through
11 Border -Kei supra at para [14].
12 Hotz supra at para [38]. Emphasis added.
some other non -legal means .”
33. This Court need – and should - only assess whether the respondents’ conduct
constitutes a threat of unlawful conduc t, be it express or implied. Once this
has been established, the requirements for the grant of a final interdict have
been met.
An injury reasonably apprehended
34. Apart from the applicant's constitutional and common law right freely to trade
and not be subjected to unlawful threats, the respondents are obliged to
conduct themselves in accordance with the provisions of the Regulation of
Gatherings Act 205 of 1993 .
35. This Ac t defines13 a "gathering" as:
"any assembly, concourse or procession of more than 15 persons in or on any
public road as defined in the Road Traffic Act, 1989 (Act 29 of 1989), or any
other public place or premises wholly or partly open to the air - (a) at which the
principles, policy, actions or failure to act of any government, political party or
political organization, whether or not that party or organization is registered in
terms of any applicable law, are discussed, attacked, criticized, promoted or
propagated; or (b) held to form pressure groups, to hand over petitions to any
person, or to mobilize or demonstrate support for or opposition to the views,
principles, policy, actions or omissions of any person or body of persons or
institution , including any government, administration or governmental
institution ".
36. In terms of the Act, various procedural requirements must be met before one
can have a gathering. The threatened action by the respondents has all the
hallmarks of falling within the ambit of the Act , but there is no evidence to the
effect that they intend complying with th e provisions of the Act. This
13 In section 1. Emphasis added.
constitutes a stand -alone clear right in support of this application.
37. Even after the launch of this application, the respondents have given no
indication that their planned action will take place within the bounds of the law.
On the contrary, it appears f rom what Mr Mjuza stat ed at the hearing that the
respondents, being at the end of their tether, will do as they see fit, and that
they (in Mr Mjuza’s submission) “cannot be blamed ” for it.
38. This speaks to the threat being a continuous violation of the applicant's rights ,
and not just a once -off remark in a letter .
No other satisfactory remedy
39. The r espondents have not indicated what alternative remedy, if any, is
available to the applicant. The applicant was at pains to point out the efforts it
had made to engage with the respondents to avoid the need to bring this
application. At least some of thos e attempts have not been denied.
40. It was, in any event, not legally required of the applicant to have taken these
steps. The fact that one of the parties, or even the Court , may think that a
problem could be better resolved by extra -curial means is not a justification for
refusing an interdict.14 Once the requirements for an interdict have been met,
the court's scope for refusing relief is limited. There is no general discretion to
refuse an interdict under these circumstances.15
41. On the facts available to me, I am of the view that the requirements for the
grant of a final interdict have been met.
Costs
42. The award of costs falls within the discretion of this Court. Given the
circumstances, it is fair that those respondents who opposed the application
14 Hotz supra at para [36].
15 Hotz supra at para [ 29].
should bear the costs. The respondents were warned, prior to the institution of
the application, that the applicant would have to resort to litigation should the
respo ndents not undertake to act lawfully. On the applicant ’s version (at least
partly undisputed) , the applicant tried to resolve the dispute prior to the
institution of the application. Mr Mjuza was involved in these attempts. The
interdict entails nothing more than that the respondents should conduct
themselves in accordance with the law.
43. In the exe rcise of my discretion on the available facts as a whole, I am of the
view that an award of counsel’s fees on Scale B is warranted in the present
matter .
Order
44. In the circumstances, the rule nisi granted on 17 September 2024 is made
final, and the first to fourth respondents are directed to pay the applicant’s
costs, including counsel’s fees taxed on Scale B.
____________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
For the applicant : Mr J. P. Steenkamp, instructed by Ben
Groot Attorneys t/a GVS Law
For the first to fifth respondents : Mr T. Mjuza (ward councillor)