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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, DURBAN
CASE NUMBER: 10273/2015
In the matter between:
MANDENI MUNICIPALITY APPLICANT
and
THE INDEPENDENT ETHIOPIAN
CHURCH OF SOUTH AFRICA FIRST RESPONDENT
ZAMA MASIKANE SECOND RESPONDENT
ORDER
I make the following order:
The application for leave to appeal is dismissed with costs on Scale B.
JUDGMENT
Mahabeer AJ
[1] This is an application for leave to appeal against the whole of the judgment
where I dismissed the application with costs on scale B.
[2] The applicant claimed the eviction of the respondents from two properties in
the Mandeni municipal area. For the sake of brevity, the properties were referred to
as Erf 1[...] and the Farm Amanda. Ancillary to the eviction order, the applicant
sought an order authorising the demolition of a partly erected structure which
straddles both properties. It is common cause t hat the first respondent undertook
those building works without the prior written approval of the applicant, in violation of
the National Building Regulations and Building Standards Act 103 of 1977.
[3] According to the application for leave to appeal, as amplified by the
applicant's counsel's heads of argument, the grounds for the applicant to seek leave
to appeal may be summarised as follows:
(a) That I exhibited bias in favour of the respondents by dismissing the
application with costs;
(b) That I was m isdirected in my analysis of the applicant's rights to the
eviction order. In relation to Erf 1[...], the applicant argued that I was
misdirected in dismissing a right of ownership claimed by the applicant in
terms of s 4A(4)(a) of the lngonyama Trust Act 3 of 1994. And in relation to
the right claimed by the applicant over the Farm Amanda, the applicant
argued that I was misdirected in failing to make a finding on the validity of a
Permission to Occupy (PTO) which the respondents asserted;
(c) That I was mala fide and misdirected in finding that there was a
challenge to the plaintiff's ownership of Erf 1[...], when in fact there was not.
[4] Chetty v Naidoo1 is the general authority for the proposition that the onus is
on an applicant to establish a right over a property to justify an eviction order. I
1 Chetty v Naidoo 1974 (3) SA 13 (A).
accordingly examined the applicant's claim in relation to each property separately in
order to determine whether the applicant had indeed discharged the onus.
[5] In relation to Erf 1[...], it is not disputed that this property vests in the applicant
under a directive which constitutes annexure "LMH3" to the founding affidavit.
However, the res pondents dispute the applicant's right to claim the respondents'
eviction when the same document constitutes an interdict which expressly records
that the properties listed in the document, including Erf 1[...], are " not to be dealt with
in any manner ". The applicant advanced no answer to this and thus did not
discharge the onus upon it.
[6] I am accordingly satisfied that there is no reasonable prospect that a Court of
appeal will reach a different conclusion on the point that the right claimed by the
appli cant to evict the respondents from Erf 1[...] was not established.
[7] With regard to the Farm Amanda, the applicant alleges that it applied to the
lngonyama Trust for a right of tenure by virtue of a lease agreement and that the
lngonyama Trust consent ed thereto. No evidence is provided in support of these
allegations however. The respondents, in turn, not only deny the existence of a lease
agreement but additionally assert the PTO in favour of the first respondent to found
their right to this property. In my view, it is not necessary to interrogate the validity of
the PTO when the applicant fails on the facts to establish a right in relation to the
Farm Amanda. Nor is there a " shifting of the onus " as argued by counsel for the
applicant - the onus is on an applicant to make out its case in its founding papers
and the applicant failed in this matter discharge the onus.
[8] Therefore in relation to the Farm Amanda as well, the applicant did not
establish a right to an eviction order, and there is no prospect that an appeal court
will reach a different conclusion in relation to this aspect of the dispute.
[9] Turning to the grounds that the Court was misdirected, conducted itself mala
fide and displayed bias in favou r of the respondents, these are serious accusations
to level against any Court. In Umgeni Water v Hollis N.O. ,2 this Court highlighted that
the onus of proving a lack of partiality by a presiding officer is on the party making
the allegation.
[10] It is m aterial to point out that no application for recusal was made at the
hearing of this matter, as one would expected of the applicant if its representatives
apprehended bias by the Court in favour of the respondents. Indeed, at the hearing
of the present app lication counsel for the applicant was directed to the specific
paragraphs in the heads of argument and application for leave to appeal wherein
reference to these claims were expressed, and invited to refer me to evidence of the
misconduct alluded to. She could do no more than concede that the Court's finding in
favour of the respondents on the merits informed this as a ground for the application
for leave to appeal.
[11] Therefore, drawing on various authorities, including the recent decision of
Transnet National Ports Authority v Umhlathuze General Sales and Services (Pty)
Ltd t/a KZN Sales and Services and Others ,3 the allegations of ma la fide and bias as
grounds for leave to appeal are bad and must be rejected.
[12] I find that there is no reasonable p rospect that a Court of appeal would arrive
at a different conclusion in this dispute and that there are no compelling reasons to
grant the application for leave to appeal.
Order
[13] In the circumstances, I make the following order:
The application for leave to appeal is dismissed with costs on Scale B.
2 Umgeni Water v Hollis N.O. [2012] ZAKZDHC 10, 2012 (3) SA 475 (KZD).
3 Transnet National Ports Authority v Umhlathuze General Sales and Services (Pty) Ltd t /a KZN Sales
and Services and Others [2024] ZAKZDHC 85.
MAHABEER AJ
DATE JUDGMENT RESERVED : 06 MAY 2025
DATE JUDGMENT HANDED DOWN : 04 JUNE 2025
Appearances:
For the Applicant: ADV N BHAGWANDEEN
Instructed by: TKN INCORPORATED
For the Respondent: ADV PEDERSEN
Instructed by: VICTOR VALENKOSI MDLETSHE