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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: M THATHA)
CASE NO.: 3949/2024
In the matter between:
SIBONGILE GAQA & 21 OTHERS APPLICANT S
and
INGQUZA HILL LOCAL MUNICIPALITY RESPONDENTS
AND 2 OTHERS
________________________________________________________________
JUDGMENT
________________________________________________________________
MTSHABE AJ
A. INTRODUCTION
[1] On 9th July 2024, the Honourable Mr Justice Brooks , granted an order along
the following terms :
1. “The Respondents are hereby interdicted and restrained from demarcating,
sub-dividing, developing, dealing, erect structures, (compr ising shacks,
makesh ift dwellings/or houses) and selling portions of the land known as the
remainder of ERF 4[...], Lusikisiski, Ingquza Hill Local Municipality, District of
Lusikisiski, Province of the Eastern Cape and in extent of 16 36 965 5 (one
thousand six hundred and thirty six, comma nine six five square meters (t he
land).
2. The Respondents are hereby directed to forth to vacate the land together with
their personal property building materials, tools and utensils.
3. The Respondents are hereby directed to forthwith restore the Applicant
vacant pos session of the land.
4. The Respondents ’ dispossession of the Applicant of the land and subsequent
occupation thereof is hereby declared unlawful.
5. The Respondents are hereby directed to demolish any structures comprising
of shacks, make shift dwellings and/or houses that they buil d on and/or
erected within ten (10) days of this order.
6. In the event of the Respondents ’ failure to comply with prayer No. 5 above
and within ten (10) days of the lapse of the period referred herein, the sher iff
of this Court , duly assisted by the members of South African Police Services,
and the Applicant is hereby directed to demolish any structures (comprising of
shacks, makeshift dwellings and/or house that have been built and/or erected
by the Respondents on the land.
7. There is no orders as to costs.”
[2] As I can be seen that the order of the Honourable Brooks J refers to 10
Respondents only. The Applicants, all of them were not included in that court
order.
[3] It is common cause that ERF 4[...], Lusikisiski is a very big land and is also
common cause that the Applicants are residents inside ERF 4[...], Lusikisiki.
[4] A declaratory order was granted by the Honourable Madam Acting Justice
Monakali on 7 May 2024, where the Court held that the land within the
boundaries of the remainder of ERF 4[...] is owned by the applicant (Igquza
Hill Local Municipality) . My underlining .
[5] The Applicants are all residence of Mdikana Community, Lusikisiski . They
were allocated sites at ERF 4[...] by their traditional leader Mr Maxabiso
Cokoto, who filled a confirmatory affidavit in support of the application by the
Applicants. It does not appear from the papers that Mr Cokoto was authorised
to allocate sites t o the Applicants by the Municipality, which is the owner of
the proper. I can only mention that the decision by Mr Cokoto to allocate sites
has not been challenged. I shall leave that point.
[6] I can also mention in passing that the applicants have not c hallenged their
eviction in terms of Prevention of Illegal Eviction from and Unlawful
Occupation of the Land, No. 19 of 1998, on the basis that before they were
evicted, the Municipality should have complied with the above Act ,
[7] The Applicants who wer e absent when the Court Order of the Honourable Mr
Justice Brooks was granted on 9 July 2024, and realised that they were
affected by the Court Order, brought an urgent Application on 10 September
2024 along the following terms :
“1. That this application is heard as a matter of urgency in terms of Rule 6
(12) and that the rules relating to forms and services provided for in
Rule 6 be dispensed with.
2. That delays in championin g this application by the applicants be and is
hereby condoned.
3. That a Rule Nisi do issue calling upon the Respondents to show c aus,
if any, before this Honourable Court on Tuesday, the 24th of September
2024 why an order in the following terms should not be confirmed and
made final , namely:
3.1 that the Respondents be and are hereby interdicted and restrained
from implementing the Court Order which was issued by the
Honourable Mr Justice Brooks on the 9th July 2024, on the Applicant’s
and/or any of Mdikana Residents, Lusikisiki, pending the finalisation of
this application.
3.2 declaring the Respondents ’ decision to implement the court order of 9th
July 2024 referred to in paragraph 3.1, invalid, of no fo rce and effect
as far as A pplicant s and/or Mdikan a Residen ts are concerned.
4. Ordering the Respondents to pay costs of this application on attorney
and o wn client scale the one paying other to be up absolved .
5. That the terms of paragraph 2, 2.1 and 2.2 supra be and are hereby
granted interim interdict, mandamus and relief with immediate effect. ” I
am of the view that the typing of 2.1 and 2.2 was an error that
should read 3.1 and 3.2. My emphasis.
B. ARGUMENTS OF THE PARTIES AND ANALYSIS
[9] The papers are bulky running to more than 300 pages, whilst the issues are
very crispy. They have been made narrower by the concessions made by Mr Mbiko,
who appeared for the Applicants. Further, the issues were r educed more when Mr
Mbiko could not point me to the “decision of the Respondents to implement the
court order” .
[9] Mr Mbiko, who appeared for the Applicants, correctly considered that
paragraph 3.1 of the order sought by the Applicants cannot be granted . He
agreed with his opponent Mr Maswazi it would not help the Applicant’s cause
of action. Mr Maswazi, who appeared on behalf of the Responde nt’s also
agreed that paragraph 3.1 of the Applicant’s Notice of motion cannot be
granted. So, the parties agreed that paragraph 3.1 of the Applicant's Notice of
Motion should be dismissed.
[10] Both Counsel during the argument agreed that the court order granted by Mr
Justice Brooks on 9 July 2024 affects the Applicants.
[11] During the argument I asked Mr Mbiko where the decision of the
Respondents, to implement the court order of 9 July 2024 , which must be
declared invalid, of no force and effect as far as the Applicants and/or
Mdikan a Residen ts are conc erned . There was a long debate on this issue,
however no decision could not be produced by Mr Mbiko. The reason for such
a request of a decision was that paragraph 3.2 of the notice of motion referred
to above states that the respondents ’ decision to imple ment the court order of
9 July 2024 must be declared invalid. I am of the view that the Court cannot
declare a decision invalid if it is not attached to the papers.
[12] The Honourable Madam Justice Monakali AJ, as I have indicated above,
granted an order that the land in question (remainder of ERF 4[...],
Lusikisiki ) is owned by the First Respondent, that is , INgquza Hill Local
Municipality. That order has not been appealed or rescinded /varied by the
Applicants or any person. It, therefore, remains valid.
[13] Mr Mbiko submitted that the Applicants where not part of the Respondents
when the order of the Honourable Mr Justice Brooks was granted. That is
correct and I also agree, however , the rea son for the current proceedings
by the Applicants is that they affected by the order, wh ich was granted in
their absent .
[14] Rule 42(1)(a)1 of the Uniform Rules of Court provides as follows:
“(1) The court may, in addition to any other p ower it may have, mero motu or
upon the application of any affected, r escind or vary:
1 Uniforms Rules of Court, D1, Erasmus Superior Court Practice
(a) an order or judgement erroneously sought or erroneously granted in the
absence of any party affected thereby ”.
[15] The Applicants are clearly affected by the order that was granted in their
absence. In my view the Applicants ought to have followed the procedure in
Rule 42 of the Uniform Rules of Court, to have the court order set aside, or
common law.
[16] The language of rule 42(1)(a) is clear and unambiguous , in that the rule is
designed for those persons who are affected by the order that was granted
in their absence. This in my view i s what happened when the order of
Brooks J was granted.
[17] The Applicants in these proceedings are not seeking an order that the order
granted by the Honourable Mr Justice Brooks should be set aside.
[18] Mr Mbiko advanced an argument that the Applicants were not cited by their
names in the order of Justice Brooks. In Occupiers of Skurweplaas2 the
court stated the following:
“The people who intend invading the Remaining Extent of the Farm
Skurweplaas 353, JR Tshwane Gauteng and the unknown people who
invaded the Remaining Extent of the Farm Skurweplaas, 353, Ts hwane
Gauteng. This description of human beings is less than satisfacto ry and
cannot pass without comment. It detracts from humanity of the occupiers , is
emotive and judgemental, and comes close to criminalising the occupiers.
This form of citation should not be resorted to. A more neutral appellation
like “ occupiers ” might well be appropriate.’’
[19] The argument of Mr Mbiko cannot carry the day, because the fifth
respondent cited in the Order of the Honourable Mr Justice Brooks is
2 Occupiers of Skurweplaas 353 JR v PPC Aggregate Quarries (Pty) Ltd 2012 (4) BCLR 382 (CC)
“UNLAWFUL PARTIES DEMARCACTIN SUBDIVIDING, DEVELOPING,
DEALING, ERECTING STRUCTURES ON THE REMAINDER OF ERF
4[...], LUSIKISIKI”. My view is that this refers to the unlawful Occupiers of
the land , which are the applicants in the current proceedings .
[20] It is trite that the court order remains valid until it is set aside by a
competent court, even if the order was granted wrongfully. The
Constitutional Court in Municipal Manager O.R Tambo District Municipality
and Another 3 the court reaffirmed that a court order is binding until it is set
aside by a competent court and that necessit ies compliance, regardless of
whether the party against whom the order is granted believes it to be nullity
or not. The court stated the following :
“Trite, but necessary it is to emphases this Court’s repeated exhortation that
Constitutional rights and court orders must be respected . An appeal or
review -the latter being an option in the case of an order from the
Magistrate’s Court - would be proper process to contest an order. A court
would not compel compliance with an order if that order be patently at odds
with the rule of law. Not withstanding, no one should be left with the
impression that court orders -including flawed court orders - are not binding,
or they can be flouted with impunity. This Court in State Culture reaffirmed
that irrespective of their validity, under section 165(5) of the Constitution,
court orders are binding until set aside. Similarly, Tasima held that
wrongfully issued judicial orders are not nullities 4 they are not void or
nothingness but exist in fact with possible legal consequences. If the
Judges have the authority to make the decisions at the time that they made
them, and those orders would be enforceable “.
[21] Further , the Supreme Court of Appeal in MEC for the Department of Public
Works, Eastern Cape and Another5, the court developed the principle that
an order of court of law stands u ntil set aside by the court of competent
3 Municipal Manager O.R Tambo District Municipality and Another v Ndabeni 2023 ( 4) SA 421 (CC)
4 Department of Transport v Tasima (Pty) Ltd. 2017 (2) SA 622 (CC)
5 MEC for Department of Public Works, Eastern Cape and Another vs Ikamva Architect CC 2023 (2)
SA 514 (SCA) para 34
jurisdiction. An order that it should not be put into effect is not competent
without a case being made out that there are prospects that it would be set
aside by recession or appeal. Until that is done, the court order must be
obeyed even if it maybe wrong; there is a presumption that the judgment is
correct .
[20] It is unfortunately in this case that the Applicants did not seek an order that
the court order granted by Monakali AJ and Justi ce Brooks should be set
aside on the basis that orders were granted in their absence . Further, it is also
unfortunately that the Counsel for the Applicant correctly considered that
prayer 3.1 of the notice of motion could not be granted as that would have no
effect of any assistance to the Applicants. Further, Mr Mbiko could not point
me to the decision that was taken by the Municipality which must be declared
invalid by this Honourable Court.
[21] Unfortunately the relief sought by the Applicant s cannot be granted.
C. CONCLUSION
[22] Accordingly , I make following order :
1. The application is dismissed
2. There will be no order as to costs.
__________________________
N.R MTSHABE
ACTING JUDGE OF THE HIGH COURT
Applicant ’s Counsel: Mr B.N Mbiko
Instructed by: Manitshana attorneys
27 Delvile Road
Mthatha
Respondent’s Counsel: Mr B Maswazi
Instructed by: Jolwana Mgidlana attorneys
19 Park Road
Mthatha
Date matter heard: 20 January 2025
Date Judgement delivered: 22 April 2025