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

CASE NO: 5243/2024

In the matter between:

MBASHE DIOCESE OF THE ANGLICAN CHURCH Applicant

and

NKULULEKO MAYAPI First Respondent

DAVID MAQHEKEZA Second Respondent

GCOBISA MAYAPI Third Respondent

COMMUNITY MEMBERS OF LOWER GWADU
LOCALITY PRESENT AT THE MEETING
OF 02 MARCH 2023 HELD AT THE GREAT PLACE OF
LOWER GWADU ADMINISTRATIVE AREA Fourth R espondent

CHIEF NTABOZUKO SIPHUNZI Fifth Respondent

__________________________________________________________________

JUDGMENT
__________________________________________________________________
RUSI J

[1] Mbashe Diocese of the Anglican Church (the applicant or Diocese) is an
administrative structure of the Anglican Church whose overall leader is its Bishop. It has
under its governance various parishes which are each under the tutelage of a pastor.
The Lower Gwadu Parish (the parish) i s one of the m. It holds its church services at a
property situated in Lower Gwadu Administrative Area . The applicant describes th is
property as ‘the Site of Anglican Church/Anglican Church Gwadu Parish ’. For
convenience, I will refer to the property so described as “the property.”

[2] The property comprises a building which the parish uses for church services , as
well as other adjoining buildings. O ne of those adjoining buildings is used to
accommodate the Reverend s who oversee the parish from time to time.

[3] This application was brought on semi -urgent basis , on 23 November 2024. It
concerns a mandament van spolie and o ther ancillary interdictory relief that the
applicant seeks against the first to fifth respondents , namely , that the respondents be
interdicted from interfering with its use and /or occupation of the property including use
and/or occupation by any of its officially recognized congregants . The applicant alleges
that it has previously been in peaceful and undisturbed possession of the property, and
the first to fifth respondents, acting in concert, unlawfully di spossessed it thereof .

[4] The applicant also seeks a declarator that it is the lawful possessor and occupier
of the property; and that it is entitled to the lawful use and enjoyment of the property in
terms of the Interim Protetion of Land Rights Act 31 of 1996 . The application is opposed
only by the first, second and third respondents , and for convenience I will refer to them
collectively as “the respondent”, or individually as meets the context in the course o f this
judgment.

[5] It bears mentioning that despite the lapse of time from the date of launching of
this application to the date of its hearing on 18 March 2025, the parties argued the issue
of its urgency.

[6] When regard is had to the fact that on 28 November 2024 when the application
was launched, it was postponed to 18 January 2025 and further until 18 March 2025, it
is axiomatic that whatever urgency there may have been, it had dissipated as of 18
March 2025 when the application was heard. The part ies had adequate opportunity to
file their respective papers between 28 November 2024 and 18 March 2025 when it was
heard for final determination. Importantly, the postponement of the matter from 28
January 2025 to 18 March 2025 came about by agreement bet ween the parties. No
prejudice has ensued on the part of the respondents. For these reasons, I do not need
to make any pronouncement on the issue of urgency.

Factual background

[7] In December 2022, a discord ensued within the parish resulting from the non-
ordination of the first respondent by the Bishop of the Diocese as the Reverend of the
parish. It is the prerogative of the Bishop of the Diocese to appoint senior members of
the church as Reverends that will in turn oversee parishes that fall under th e Diocese.
Bishop Fikizolo (the Bishop or Bisho p Fikizolo ) is the current Bishop of the Diocese. An
ordination of ten Reverends of the Diocese was scheduled to take place in December
2022. However, t he Bishop took a decision to ordain only five Reverends with the
intention of ordaining the other five in the subsequent cycle of ordination . The first
respondent was not among those who were ordained on 11 December 2022, and he did
not receive his non-ordination well.

[8] Reverend Ngubo was appointed by the Bishop as the pastor responsible for the
parish and he was to assume his duties in January 2023 . He could no t do so as it
happened that no congregants turned out for church services on several consecutive
occasions. At the instance of the Bishop , an investigation was undertaken by Reverend
Sifuba , another religious leader in the Dioces e, into the possible cause of the persisten t
non-attendance of church services by the members of the congregation of the parish.

[9] A report that Revend Sifuba made to the Bishop revealed that the congregants of
the parish stayed away from church services as a way of showing discontent with his
failure to ordain the first respondent as Reverend for the parish. The congregants and
certa in members of the community allegedly stood in solidarity with the first respondent.
Reverend Ngubo’s services at the parish were withdrawn by the Bishop, and Reverend
Sifuba was assigned as its caretaker Reverend.

[10] A meeting was subsequently held a t the homestead of the fifth respondent on 02
March 2023 and its purpose was to resolve the impasse that had arisen and in which
the Lower Gwadu community members had apparently become involved . It was at this
meeting that Reverend Sifub a who attended it on behalf of Bishop Fikizolo was caused
to hand the keys to the property over to the fifth respondent. According to the applicant,
the keys to the property were unlawfully taken away from Reverend Sifuba, thus,
dispossessing it of the pro perty without its consent.

The applicant’s case

[11] In the applicant’s founding affidavit, Bishop Fikizolo states that the property has
been used and occupied by the applicant ; and it has been in its control since time
immemorial. Before 02 March 2023, the property was in its peaceful and undisturbed
possession. This is where the parish has always held its church services. According to
Bishop Fikizolo , the applicant is the owner or bona fide possessor of the property, and
the respondents have no title, right or authority to use the ‘church building’ without its
consent.

[12] The applicant further states that the property was allocated to it by means of a
permission to occupy which was issued to it in terms of ‘the regulation s promulgated
under the ‘Land Act of 1936.’ This, says the applicant, is the basis of the informal right
that it asserts, to occupy the property, and which this Court ought to protect by granting
the relief sought. 1 Regarding the permission to occupy , the applicant states that it
could not been found after a diligent search. It further sates that t he officials of the
Department of Agriculture, Land Reform and Rural D evelopment were requested to
provide a copy of the permission to occupy . In a letter dated 02 September 2024 , the
department ’s relevant official reported that no records of such permission to occupy
could be found in its offices.

[13] Bishop Fikizolo goes on to state that after he received the investigation report
from Reverend Sifuba he received a call from the fifth respondent who demanded that
Reverend Sifuba be removed from Lower Gwadu as the Reverend of the parish ‘on pain
of some bad consequences.’ Upon receipt of this phone call, he requested Reverend
Sifuba to attend at the homestead of the fifth respondent to ascertain more facts
regarding the fifth respondent’s demand.

[14] When Reverend Sifuba went to the homestead of the fi fth respondent he was in
the company of two members of the SAPS and Archdeacon Bekwa, a local church
leader. They were invited to the meeting of 02 March 202 3 (the meeting) which was
also attended by a large crowd of members of the community . Those members of the
community have been cited in this application as the fourth respondent.

[15] There was no amicable resolution of the matter at the meeting . Instead, the fifth
respondent demanded the keys to the property from Reverend Sifub a who r esisted the
demand . The attendees of the meeting reacted to his resistance with threat s of harm

1 It was unclear from the facts of this application whether the applicant based its cause of action on the
Native Trust and Land Act 18 of 1936, or other similar old order legislation. The Native and Trust Land Act
has as its object , inter alia, ‘the provision of a South African Native Trust and to make provision for the
acquisition and occupation of land by ‘natives’ and other persons’. Due to the applicant’s failure to provide
a clear citation of th e relevant legislation, it became necessary, after h earing argument, to invite the
parties to file supplementary heads of argument on the legal framework that the applicant relies on as the
basis for the declarator that it seeks. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12
March 2004), at para 27, it was emphasized that where a litigant relies upon a statutory provision, it is not
necessary to specify it, but it must be clear from the fa cts alleged by the litigant that the section is relevant
and operative . (My own emphasis)
and insult s directed at him . When Reverend Sifuba and his company attempted to leave
the premises o f the fifth respondent, one of the community members , went to close the
gate, preventing them from leaving. He handed the property keys over to the fifth
respondent under protest because of the threats and insults. Since this dispossession of
the keys the members of the parish have not been able to access the property .

[16] The applicant subsequently instituted proceedings in the Willowvale Magistrates’
Court in which it successfully claimed ownership of the property by way of acquisitive
prescription. Despite this success, the respondents did not restore the property’s
possession to the applicant. It later occurred to the applicant that the proceedings in the
Willowvale Magistrate’s Court wer e ill-conceived and could not have afforded it the
required redress. Resulting from this realization, t he applicant resolved to abandon the
judgment of the Willowvale Magistrates’ Court by notice dated 15 November 2024.

[17] The facts that Bishop Fikizolo states concerning Reverend Sifuba’s report on his
investigation of the discord within the parish , and the circumstances under which he
was dispossessed of the keys to the property at the meeting are confirmed in similar
detail by Reverend Sifuba in his confirmatory affidavit. It is therefore not necessary to
repeat them.

[18] As regards the ancillary interdictory relief, the applicant states that it has a clear
right of use and enjoyment of the property which the respondents are usurping by their
conduct. It further sates that it has no other alternative remedy available to it since the
proceedings of the Willowvale Magistrate’s Court would not afford it appropriate relief.
The applicant further sates that i f the relief that it seeks is not granted, it will suffer harm
in the form of loss of the property.

The first and second re spondent s’ case

[19] Apart from disputing that the applicant is the owner of the property, the first and
second respondents allege in their answering affidavit , which the first respondent
deposed to, that it is not correct that the applicant had peaceful and undisturbed
possession of the property before the keys were handed to the fifth respondent . In this
regard they allege that the property has always been jointly used by the community and
the parish for their various and respective purposes.

[20] The f irst and second respondents further deny that the applicant was unlawfully
dispossessed of the keys under threats of violence . According to them, Reverend
Sifuba consented to the handing over of the keys to the fifth respondent. For these
reasons, they sta te that the applicant has not established its entitlement to the relief that
it seeks.

[21] The rest of the allegations that the applicant makes regarding what caused the
standoff between the first respondent and the parish is confirmed by the first and
second respondents. They deny, however, that they solicited the solidarity of the
members of the community cited in this application as the fourth respondent .

The third respondent’s case

[22] The third respondent raised a point in limine of lack of locus standi on the part of
the applicant in the light of the fact that it did not produce the permission to occupy that
it relies on to prove its ownership of the property .

[23] While no point in limine of misjoinder has pertinently been raised by the third
respondent, she alleges in her answering affidavit that she was not part of the meeting
at which the alleged dispossession took place, and she does not know what the
resolution of that meeting was . For these reasons, the third respondent contends that
there is no basis why the applicant alleges that she is part of the persons who
dispossessed it of the property.

[24] That being the case, the third respondent goes on to set out facts which,
according to her, represent the correct state of affairs conce rning who has the title to
possess the property . In this regard, the third respondent states , in essence , that the
buildings that are on property are owned by the community of Lower Gwadu and that
this application is the applicant’s attempt to dispossess the community of Lower Gwadu
of the property. She further state s that the community of Lower Gwadu of which she is a
member, uses the property for various functions including funerals and political
meetings. The third respondent further states that since the applicant has failed to
adduce proof of ownership of the property, it has no right of claim to it . On these
grounds , the third respondents contends that the applicant has failed to disc harge the
onus of proving the requisites for the grant of the possessory interdict.

The fifth respondent’s confirmatory affidavit

[25] The fifth respondent, who is the traditional leader (iNkosana) of Lower Gwadu
Administrative Area, filed a confirmatory affidavit . It is un clear which facts he is
confirming and in which affidavit those facts are stated among the affidavits that have
been filed in this application. In the so -called confirmatory affid avit, the fifth respondent
states that he does not oppose the application . There is indeed no notice of intention to
oppose that was filed on behalf of the fifth respondent.

[26] In his affidavit, the fifth respondent states facts which, according to him , portray
the accurate position regarding the ownership of the property forming the subject of this
application. However, d espite stating that he does not oppose the application , the fifth
respondent goes further and states that no permission to occupy the property forming
the subject of this application was ever issued to anyone or any organization or church .

[27] The fifth respondent further states that the property is owned by the community
of Lower Gwadu Administrative area and was built with its own resources. According to
the fifth respondent, Reverend Sifuba voluntarily handed over the keys to the property
to him so that anyone in the community who wished to use the property could have
access to it .

[28] Further according to the fifth respondent, it is the Reverends of the applicant,
including Reverend Sifuba, who came to his homestead on 02 March 2023 to apologize
for locking the community hall thereby denying the community access to it. He denied
that the applicant was unlawfully dispossessed of the property . He describes the actions
of the applicant in seeking to vindicate its alleged title or right to claim the property as
“arrogant and an act of looking down on all of th em.”

[29] I must interpose at this point to mention that despite the glaring irregularity in the
filing of the fifth respondent’s confirmatory affidavit and the scandalous matter that it
contains, no application was made for its striking out or setting aside as well as the
striking out of the scandalous matter . Moreover, the tone used by the fifth respondent in
expressing his views of the applicant’s alleged motives offends decorum.

[30] With this said, the fifth respondent is clearly not deposing to the affidavit as a
neutral person whose aim is to place material facts before this Court for the just
decision of this case. He depos ed to the affidavit in order to rebut the averments made
by the applicant regarding the relief that it seeks. This is manifest from the content of his
affidavit.

[31] Rule 6 of the Uniform Rules of this Court sets out the sequence and timing for
the filing of the affidavits by the respective parties in application proceedings , and it is
accepted that the affidavits are limited to three sets.2 This notwithstanding, t he applicant
elected to reply to the fifth respondent’s confirmatory affidavit. The es sence of that reply
is that the fifth respondent has not disputed the unlawful dispossession of the property
by threats of violence and harassment directed at its Reverends.

[32] It is the view I hold that t he affidavit of the fifth respondent relates to crucial
issues that arise in this application. I must nonetheless have regard to it.


2 Hano Trading CC v J R 209 Investments (Pty) Ltd 2013 (1) SA 161 (SCA); James Brown & Hammer
(Pty) (Previously named Gilbert Hamer & Co Ltd) Ltd v Simmons, NO 1963 (4) (SA) 656 at 660E -G).
The parties’ submissions

[33] On behalf of the applicant Mr Maswazi submitted that Reverend Sifuba could not
have validly consented to the handing over of the keys when regard is had to the fact
that the Bishop , on whose behalf he attended the meeting , did not authorize such an act
which was not in their contemplation when he was requested to attend the meeting. It
was Mr Maswazi ’s submission further that the applica nt has established its entitlement
to the final interdict that it seeks. He emphasized the fact that none of the respondents
oppose d this application as representatives of the community whose right of ownership
of the property they seek to assert. For this reason, he submitted that their assertion of
any title to the property is unsustainable.

[34] Concerning the declarator that the applicant seeks, Mr Maswazi submitted that
its title to possess the property as the beneficial occupant is protected in terms of the
already mentioned Interim Protection of Land Rights Act whose object, is inter alia, to
provide temporary protection of certain rights and interests i n land which are not
otherwise adequately protected by law.

[35] In the applicant’s supplementary heads of argument filed upon this Court’s
invitation for further legal argument on the legislative framework on which the applicant
bases its entitlement to the declaratory relief that it seeks, it was submitted on behalf of
the applicant that it obtained the permission to occupy the property in terms of
Proclamation 26 of 1936 . The relevant portion of the Proclamation , section 4 , in
particular, reads:

“Permis sion to Occupy Homesteads and Arable Allotments
(1) The Native Commissioner may grant permission –
(i) to any Native to remain in occupation of such homestead and arable
allotments as were in his lawful but unregistered occupation immediately
prior to the commencement of the Transkei Land Amendment Act, 1968;
(ii) to any Native domiciled in the district to occu py a homestead or arable
allotment for domestic and agricultural purposes respectively;
(iii) to any missionary society or educational authority to hold a homestead or
arable allotment in a residential area or an arable allotment for occupation
by paid Native Mi nisters, preachers or evangelist, or teachers in its
employ.
(2) . . .”

[36] Mr Dyantyi who represented the first and second respondents , submitted that the
applicant failed to prove ownership of the property by means of a permission to occupy.
Mr Dyantyi took the view that since the applicant was never the sole possessor of the
property it did not have peaceful and undisturbed possession of the property. On these
grounds he submitted that the applicant has not satisfied the requirements of spoliato ry
relief. Regarding the applicant’s entitlement to the additional interdictory relief, Mr
Dyantyi submitted that the applicant had an alternative relief in the form of the claim for
acquisitive ownership that it abandoned in the Willowvale Magistrates’ Co urt.

[37] Mr Hinxa submitted, on behalf of the third respondent that since the applicant
was not present in the meeting of 02 March 2023 where the alleged unlawful
dispossession took place, she ought not have been joined in these proceedings. In
similar ve in, Mr Hinxa submitted that the third respondent opposed this application as a
member of the community who has also used the property that the applicant wants to
claim as its own.

[38] I must interpose to state that if this is accepted as the third respondent’s stance
in this application , she has a direct and substantial interest in the outcome of these
proceedings as a community member that this Court’s order would adversely affect. The
test for a misjoinder or non -joinder is whether t he party has a direct and substantial
interest in the subject matter of the litigation.3 A direct and substantial interest in the

3 Gordon v Department of Health, KwaZulu -Natal 2008 (6) SA 522 (SCA); Absa Bank Ltd v Naude NO
2016 (6) SA 540 (SCA).
subject matter of the litigation has been held to mean a legal interest in the subject
matter of the litigation which may be affected by the decision of the court, and which
must not be remote or hypothetical.4 The point raised, of misjoinder is therefore ill -
contrived.

[39] It was Mr Hinxa ’s submission further that in as much as the applicant was in
possession of the property before the keys were handed to the fifth respondent, such
possession was never a peaceful and undisturbed one by reason of the joint use of the
property by the applicant and the community of Lower Gwadu for various purposes.
Despite the handing over of the keys to the fifth respondent, so the submission
continued, the applicant was never denied access to the property. For this reason, Mr
Hinxa argued, the application for spoliatory relief must fail. Regarding the additional
interdictory relief that the applicant seeks, Mr Hinxa submitted that the applicant has not
established the requirements for the grant of such interdictory relief.

[40] It was furt her submitted on behalf of the first, second and third respondents, in
their respective supplementary heads of arguments that were filed, as mentioned, upon
the invitation of the court, that neither the ‘Land Act of 1936’ nor Proclamation 26 of
1936 assist the applicant in its quest. In this regard, Mr Dyantyi and Mr Hinxa both
submitted, in the respective supplementary heads of argument, that the reasons for this
view are two pronged – the first prong is that the applicant has not produced evidence
of the permission to occupy which is provided for in terms of the two legislation s; the
second is that the applicant is not “a native” that the two legislations envisage.

The law


4 National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others 2015 (2) BCLR 182
(CC); International Trade Administration Commission SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC);
Ex parte Body Corporate of Caroline Court 2001 (4) SA 1 230 (SCA); Pheko and Others v. Ekurhuleni City
2015 (5) SA 600 (CC).
[41] The foundational principles of the spoliatory relief were enunciated in Nino
Bonino v De Lange5 where Innes , CJ said:

‘It is a fundamental principle that no man is allowed to take the law into his own
hands. No one is permitted to dispossess another forcibly or wrongfully and
against his consent of the possession of property whether movable or
immovable. If he does so the court will summarily restore the status quo ante and
will do that as a preliminary to any enquiry or investigation into the merits of the
dispute. It is not necessary to refer to any authority upon a principle so clear. ’

[42] The relief of the possessory interdict is rooted in the rule of law and its main
purpose is to preserve public order by preventing persons from taking the law into their
own hands and by inducing them to submit the matter to the jurisdiction of the courts.6 It
is trite that the essence of the spoliation remedy is that the person who has been
deprived of his or her possession must first be restored to his or her former possession
before the merits of the case can be considered.7

[43] Two requirements must be met before the spoliation remedy ma y be granted.
There must, f irstly, be clear proof of peaceful and undisturbed possession of the
property. Secondly, unlawful dispossession (or deprivation) by the spoliator must be
proven.8 Once the two requirements have been proven by the applicant, she is entitled
to a mandament van spolie restoring the status quo ante.

[44] It is not sufficient for the applicant merely to make out a prima facie case, he
must prove his case on a balance of probabilities as in any other civil case.9 The basis

5 1906 TS 120 at 122.
6 Tswelopele Non -Profit Organisation and Others v City of Tshwane Metropolitan Municipality and Others
[2007] ZASCA 70; 2007 (6) SA 511 (SCA) para 22; Ngqukumba v Minister of Safety and Security and
Others 2014 (5) SA 112 (CC); 2014 (2) SACR 325 (CC) paras 10 -12; LAWSA, second Edition, volume 27
para 93.
7 Ngqukumba , footnote 7 supra, para 10.
8 Nino Bonino footnote 6, supra ; Yeko v Qana 1973 4 SA 735 (A) 739 ; Blendrite (Pty) Ltd and Another v
Moonisami and Another (case no 227/2020) [2021] ZASCA 77 (10 June 2021); Scoop Industries (Pty) Ltd
v Langlaagte Estate and GM Co 1948 (1) SA 91 (W) at page 98.
9 Mankowitz v Loewenthal 1982 (3) SA 758 (A) at 767 F -H.
(causa) for possession, or whether possession is wrongful or illegal, is irrelevant, as that
would go to the merits of the dispute.10

[45] An applicant for a final interdict must establish t hree requisites, namely, a clear
right which he seeks to protect by means of the interdict; actual injury or a well -
grounded apprehension of injury if the interdict sought is not granted; and that there is
no other alternative appropriate relief available to him. This is settled law.11

[46] With these legal principles in mind, in the discussion that follows I consider
whether the applicant has made out a case for the relief that it seeks.

Discussion

[47] It is common cause that before the discord that emerged within the parish, both
parties made use of and occupied the property for their various respective purposes
peacefully and without disturbance. Indeed, this meant that there was a multiplicity of
the persons who, at dif ferent points in time , used and occupied the property for various
purposes as mentioned .

[48] The effect of the contention that the first, second, third and fifth respondent make
is that the applicant had mere access to the property which cannot amount to the sort of
possession that the law protects. However, from the fact the applicant has held th e keys
to the property until the fifth respondent took possession of them, it ought to follow that
in that way it was in physical control of the property.

[49] I hold the view that the applicant’s possession of the property has not been
diluted to a point of being mere access that it cannot be regarded by the law as
sufficient to attain the protection of the possessory interdict. Joint possession of the

10 Ivanov v Northwest Gambling Board and Others (312/2011) [2012] ZASCA 92; 2012 (6) SA 67
(SCA)2012 (2) SACR 404 (SCA) [2012] 4 All SA 1 (SCA) (31 May 2012), para 19.
11 Setlogelo v Setlogelo 1914 AD 221 at 227; see also Dyalo v Mnquma Local Municipality and Another
(8490/2016) [2016] ZAECMHC 36 .
property has been accorded protection where one of the joint possessors takes
exclusive possession of th at property against the will of the possessor by illicit means.12
Therefore, the contention made by the first, second , third and fifth respondents that the
applicant was never in peaceful and undisturbed possession of the property, by reason
of the joint u se of the property in the manner already mentioned , cannot be sustained.

[50] The respondents place heavy reliance on the fact that the ownership of the
property vests in the community of which the fi fth respondent is the traditional leader.
This relian ce on the ownership of the property is misplaced. The essential character of
possessory remedy is that the legal process whereby the possession of a party is
protected is kept strictly separate from the process whereby a party’s right to ownership
or of the right to property in dispute is determined.13

[52] Before the title to possess is determined, possession must be restored where the
possessor has illicitly been disposed of the property, provided that previous peaceful
and undisturbed possession has been proved. As held in Street Pole Ads Durban (Pty)
Ltd v Ethekwini Municipality , good title is irrelevant in a spoliation application.14 This
simultaneously addresses the point in limine that the third respondent raised, of the
applicant’s lack of locus standi.

Should the asserted defence of consent prevail?

[53] Consent is indeed one of the recognized defences to spoliatory relief. But such
consent will be valid if it was given genuinely, freely and voluntarily. As Heher JA held in
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another ,15 both the giving and
receiving (of possession) must be considered in context. Rose Innes J enunciated the

12 Denneguer Est Homeoners Association v Telkom SA Ltd 2019 (4) SA 451 (SCA) para 9.
13 Erasmus, Superior Court Practice, Volume 2 Service 15, 2019 at D7 -1; Ivanov footnote 11 supra, para
19.
14 2008 (5) SA 290 (SCA) , para 15.
15 2008 (3) SA 371 at 381 para 27.
legal position in Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director,
Department of Education and Culture Services, and Others16 as follows :

‘[T]he cardinal enquiry is whether the person in in possession was deprived
thereof without his acquiescence and consent. Spoliation may take place in
numerous unlawful ways. It may be unlawful because it was by force, or by threat
of force, or by stealth, d eceit or theft, but in all cases spoliation is unlawful when
the dispossession is without the consent of the person deprived of, since consent
to the giving up of possession of possession of property, if the consent is
genuinely and freely given, negates t he unlawfulness of the dispossession.17

[54] These being application proceedings, final relief will be granted if the facts
alleged by the applicant, which the respondent admits, together with the facts alleged by
the respondent justify the granting of su ch a final order.18 Furthermore, t his Court will be
entitled to accept the facts alleged by the applicant in so far as they are admitted by the
respondent, and those alleged by the respondent in so far as his version is plausible
and credible.19 And, where the respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible, far -fetched or so clearly
untenable that the court would be justified in rejecting them merely on the papers.20

[55] The first and second respondents who were among the persons that attended
the meeting of 02 March 2023 denied and put the applicant to the proof of the alleged
dispossession of the keys under threats of harm and insults. They did not, however,
dispute the a pplicant’s allegation that he handed the keys to the fifth respondent under
protest. According to the first and second respondents, Reverend Sifuba was merely
asked about the fact that ‘his church ’ had locked the property, and he apologized.

16 1996 (4) SA 231 (C).
17 At page 240B -D.
18 Plascon - Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984(3) SA 620 (SCA) (“Plascon -Evans” ).
19 Airports Company South Africa Soc Ltd v Airports Bookshop (Pty) Ltd t/a Exclusive Books , 2017 (3) SA
128 (SCA) para 26.
20 Plascon -Evans , supra, at 634-5; National Director of Public Prosecutions v Zuma (573/08) [2009]
ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009 ] 2 All SA
243 (SCA) (12 January 2009) , para 26.

[56] The fif th respondent, on the other hand, denied in his so -called confirmatory
affidavit any knowledge of facts relating to the meeting of 02 March 2023 and of the
alleged dispossession by threats . Yet, n owhere in the said confirmatory affidavit does
he specifical ly deny being present at the meeting. In fact, the contrary is true. He states
in his affidavit that he took the keys from Reverend Sifuba in his capacity as the
traditional leader of the lower Gwadu Community in whom the ownership of the property
vests , in order to facilitate free access of everyone who wished to utilize the property,
including the applicant. I need only emphasize that it is to the manner in which the
dispossession took place that the element of unlawfulness of dispossession relates, not
the alleged title or right of the spoliator to claim possession.21

[57] In Wightman t/a JW Construction v Headfour (Pty) Ltd and Another22, in which
Heher JA said:

‘[13] A real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets the requirement
because there is no other way op en to the disputing party and nothing more can
therefore be expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party and no basis is laid
for disputing the veracity or accuracy of the a verment. When the facts averred
are such that the disputing party must necessarily possess knowledge of them
and be able to provide an answer (or countervailing evidence) if they be not true
or accurate but, instead of doing so, rests his case on a bare or ambiguous
denial, the court will generally have difficulty in finding that the test is satisfied. ’


21Stocks Housing , footnote 17, supra at 240A -B.
22 Footnote 15 supra, at 375G -H.
[58] It can hardly be said that the allegations that the applicant makes in its founding
affidavit , that the keys to the property were forcefully disposses sed from Reverend
Sifuba , has been seriously disputed by any of the opposing respondents. As already
mentioned , the first, second, third and fifth respo ndents placed great store in the fact
that the property is owned by the community. I have already mentioned that ownership
is not a consideration in spoliatory relief.

[59] On the common cause facts of this application I am satisfied that the applicant’s
version is credible – the keys to the property were forcefully taken from Reverend
Sifuba. Therefore , the applicant has proven that it was unlawfully dispossessed of the
property. I turn to deal with whether the applicant has established its entitlement to the
additional interdictory relief that it seeks .

Clear right

[60] The meaning of ‘clear right’ in relation to an application for a final interdict relates
to the degree of proof required to establish the right. Two aspects are of relevance on
this score – the first is that the existence of a right is a matter of substantive law. This
means that the right must be one that is recognized by law. The second aspect relates
to whether the right is clearly established, and this is a matter of evidence.23

[61] There can hardly be controversy regarding the fact that the applicant has the
protection of section 25 of the Constitution against arbitrary deprivation of property. This
is the legal interest it seeks to protect in relation to the property that forms the subject of
this application. I make the finding that the applicant has established a clear right which
it seeks to protect by the interdictory relief.

Irreparable harm


23 Erasmus, Superior Court Practice, Volume 2 Service 15, 2020 at D6 -13; Dyalo , footno te 12, supra.
[62] The applicant must establish a reasonable apprehension of injury in that a
reasonab le person faced with certain facts would entertain such apprehension of injury.
While the applicant is not required to prove that on a balance of probabilities of
undisputed facts that he will suffer harm, he must show that objectively his fear of harm
is well grounded in the sense that it is reasonable to apprehend that injury will result..24

[63] The applicant’s attempts to reach an amicable resolution of the matter with the
respondent failed. Its representatives (Reverend Sifuba and his fellow church leaders)
were brazenly terrorized at the meeting. Regard also being had to the finding I made
that the keys to the property were forcefully taken from Reverend Sifuba on the watch of
the fifth respondent, it is reasonable for the applicant to comprehend that if this Court
does not grant the interdictory relief sought, the respondents would continue to harass
the members of the parish thereby thwarting its possession, use and enjoyment of the
property.

Alternative remedy

[64] In determining what an appropriate alternative remedy is, the circumstances of
each case must be considered. In Hotz and Others v University of Cape Town25, the
following was said of the requisite of absence of an alternative remedy:

‘[T]he existence of an other remedy will only preclude the grant of an interdict
where the proposed alternative will afford the injured party a remedy that gives it
similar protection to an interdict against the injury that is occurring or is
apprehended. . . The fact that one o f the parties, or even the judge, may think

24 Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold Mining Co Ltd 1961 (2) SA 505 (W)
at 515; Minister of Law and Order and Others v Nordien and Another 1987 (2) 894 (AD) at 896F -I (and all
authorities cited therein ); National Council of Societies for the Preventi on of Cruelty to Animals v
Openshaw (462/07) [2008] ZASCA 78; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008),
para 21.
25 Hotz and Others v University of Cape Town (730/2016) [2016] ZASCA 159; [2016] 4 All SA 723 (SCA);
2017 (2) SA 485 (SCA) (20 October 2016).
that the problem would be better resolved, or can ultimately only be resolved, by
extra -curial means, is not a justification for refusing to grant an interdict.’26

[65] On the applicant’s own showing, the propert y was allocated to it by means of
permission to occupy which, as is trite, does not confer ownership of the property.
Therefore, if its possession and occupation of the property came about with the
permission of the ‘owner’ of the land, the claim of prescr iptive acquisition would indeed
have been ill -conceived. One of the requisites for such a claim is that the property must
be occupied without the permission of the true owner.

[66] It ought to follow from this , that a claim of prescriptive acquisition would still not
be appropriate remedy to protect the right that the applicant now asserts. I have already
mentioned that the applicant’s attempt s to reach an amicable resolution of the matter
with the respondent were in vain. The applicant’s version that it has no other alternative
remedy available to it must therefore prevail. This brings me to the determination of the
declarator that the applicant seeks.

The declarator

[67] This Court’s discretionary power to grant the declarator sought is governed by
section 21(1) (c) of the Superior Courts Act 10 of 2013 which provides that it may, at the
instance of any interested person, to enquire into and determine any existing, future or
contingent right or obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.27

26 Op cit , para 36.
27 Section 21(1) provides reads:
‘21 Persons over whom and matters in relation to which Divisions have jurisdiction :
(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and
all offences triable within, its area of jurisdiction and all other matters of which it may according to law take
cognisance, and has the power –
(a) to hear and determine appeals from all Magistrates’ Courts within its area of jurisdiction;
(b) to review the proceedings of all such courts;
(c) in its discretion, and it may, at the instance of any interested person, to enquire into and determi ne any
existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.’

[68] Declaratory relief will be granted if the applicant sa tisfies the court of no more
than the fact that he or she is a person interested in an “existing, future or contingent
right or obligation.28 In determining whether or not a declaratory order should be made
the co urt must first be satisfied that the applicant is a person interested in an ‘existing,
future or contingent right or obligation’, and if so satisfied, it must decide whether the
case is a proper one for the exercise of the discretion conferred on it.29

[69] There is, in the present case, undeniably strenuous contestation of the title to the
property , or the right to claim its possession. I am not unmindful of the fact that,
ordinarily, in determining the spoliatory relief, the fact of who has a stronger right or
claim to possession is irrelevant. However, in Street Pole Ads Durban (Pty) Ltd and
Another v Ethekwini Municipality30, Cameron JA stated:

‘[G]ood title is irrelevant: the claim to spoliatory relief arises solely from an
unprocedural deprivation of possession. There is a qualification, however, if the
applicant goes further and claims a substantive right to possession, whether
based on title of ownership or on contract. In that case, ‘the respondent may
answer such additional claim of right and may demonstrate, if he can, that
applicant does not have the right to possession which it claims’. This is because
such an applicant “in ef fect forces an investigation of the issues relevant to the
further relief he claims”. Once he does this, the respondent's defence in regard
thereto has to be considered.’

[70] Regrettably, the first, second and third respondents ; and the fifth respondent,
though firmly asserting the Lower Gwa du community’s ownership of the property, have
not established the necessary legal standing, at least in this case, to oppose this

28 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005(6) SA 205(SCA) at para17
and 18.
29 Durban City Council v Association of Building Societies 1942 AD 27; Reinecke v Incorporated General
Insurances Ltd 1974(2) SA 84 (A) at 95C.
30 Supra, footnote 15 at para 15.
application on behalf of the said community. The fifth respondent makes this position
clear in paragraph 4 of the so -called confirmatory affidavit when he states as follows:

“I am not opposing the Applicant’s application but I am only explaining that which
is known to me not only as iNkosana of the area but as the resident and witness
who has seen so many things unfolding before my eyes in the area some
brought to me as complaints.”

[71] The effect of this is that the entirety of the Lower Gwadu community, except the
unspecified members of the community who attended the meeting of 02 March 2023
and cited in this case as the fourth respondent, is not a party to these proceedings and
has not fully placed its defence to the ownership right or title to possess the property
which the applicant also asserts.

[72] Over and above the Interim P rotection of Land Rights Act as the basis for the
declarator that it seeks, the applicant also relied on the provisions of ‘the Land Act of
1936 ’ as the regime in terms of which it was issued with a permission to the property.
However, in the supplementary heads of argument that were filed on its behalf, a
different contention is made that the permission to occupy was issued under
Proclamation 26 of 1936. This is compounded by the fact that the applicant could not
produce the permission to occupy, which it alleges is the basis for the right of ownership
that it asserts.

[73] It is not open to the applicant to present argument on legislation different from
that on which based its cause of action. An applicant must stand or fall by its fou nding
affidavit,31 and facts relevant to relief must be set out simply, clearly and in
chronological sequence in the affidavits which support the notice of motion.32


31 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635 – 6; Bowman NO v De Souza
Roldao 1988 (4) SA 326 (T) at 327.
32 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78 .
[74] For the aforegoing reasons, the present application is not a proper case for the
exercise of the discretion to grant the declarator sought by the applicant as to its title to
possess (or own) the property.

Costs

[75] The general rule is that a successful litigant must be awarded its costs unless
there are grounds which justify a deviation from this rule. The applicant has attained
substantial success in so far as the spoliation relief and the additional interdictory re lief
are concerned. There is no reason why i t should not be awarded costs.

[76] A proposition was made on behalf of the applicant that the respondents who
opposed this application ought to be mulcted with punitive costs. I disagree with this
proposition. I am not satisfied that the first, second and third respondents ’ opposition of
this application , albeit manifestly ill -contrived, went beyond protecting what they
conceived was their legal interests .

[77] Something must be said about the fifth respondent’s liability for costs . I have
already mentioned that when regard is had to the substance of his so -called
confirmatory affidavit, it was intended to rebut the applicant’s allegation of unlawful
dispossession of the property and the claim it makes to its title to possess or own the
property.

[78] The filing of the fifth respondent’s so -called confirmatory affidavit is a clear
instance of flouting procedure in order to escape the heralded liabilit y for costs in the
event of opposition of this application , and it should not be countenanced. There is no
reason why the fifth respondent should not be ordered to pay the applicant’s costs .

Order

[79] In the result, I make the following order:

1. The fifth respondent is hereby directed to release the keys to the property known
as the Site of Anglican Church/Anglican Church Gwadu Parish (“the property”) to
the applicant forthwith, by handing them over to Mluleki Fikizolo, currently the
Bishop of the applicant, or a person nominated by him.

2. The first to fifth respondents and/or anyone acting under their direct or indirect
instruction and/or mandate, are hereby interdicted from interfering , in any way,
with the use and/or occupation of the property by the applicant and any of its
officially recognized congregants.

3. In the event that the fifth respondent fail s and/or refuse s to release the keys to
the property in the manner specified in paragra ph 1 of this order , the Sheriff of
this Court, duly assisted by the members of the South African Police Service, is
authorized to remove the keys from the fifth respondent’s possession and hand
them over to the applicant’s Bishop Mluleki Fikizolo or a pers on nominated by
him.

4. The first, second , third and fifth respondents shall pay the costs of this
application , which costs shall include costs of two counsel where so employed.


__________________
L. RUSI
JUDGE OF THE HIGH COURT


Appearances

For the Applicant : Adv. B Maswazi
Adv. L Ndinisa
(Instructed by Mtshengu Rozani Attorneys Inc , Mthatha )

For the first and second respondents : Mr S Dyantyi
(Legal Aid South Africa , c/o Mthatha Local Office )

For the third respondent : Mr M D Hinxa
(N. S. Nombambela Attorneys, Mthatha)

Date heard : 18 March 2025
Date delivered : 22 April 2025