SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no 1914/2025
In the matter between:
MALUTI -A-PHOFUNG LOCAL MUNICIPALITY Applicant
and
KING LETSITSA SIKA LUCAS MOLOI 1
st Respondent
[ID No. 6 […]]
DAVID MPHATSISI MOLOI N.O. 2
nd Respondent
[In his official capacity as co -trustee of the Bakholokoe Royal
Trust Motawana, I […])]
PATRIC MOLOI N.O. 3
rd Respondent
[In his official capacity as co -trustee of the Bakholokoe Royal
Trust Motawana, I […]]
KING LETSISTSA MOLOI N.O. 4
th Respondent
[In his official capacity as co -trustee of the Bakholokoe Royal
Trust Motawana, I […]]
ESIAH THABO TSHABALALA N.O. 5
th Respondent
[In his official capacity as co -trustee of the Bakholokoe Royal
Trust Motawana, I […]]
2
LEWA JOSEPH MORAJANE N.O. 6th Respondent
[In his official capacity as co -trustee of the Bakholokoe Royal
Trust Motawana, I […]]
NAZARETH BAPTIST CHURCH 7
th Respondent
FERDIE VAN ZYL 8
th Respondent
HENNIE AND BESSIE FOURIE t/a NAT SNOETJIES 9th Respondent
THE ILLEGAL PERSONS (OCCUPIERS) OCCUPYING THE IMMOVABLE PROPERTY SITUATED AT FARM 131 (REMAINING
EXTENT OF PORTION 0, PORTION 88 AND PORTION 105) DORPS GRONDEN VAN HARRISMITH, FREE STATE PROVINCE, ALSO KNOWN AS ‘PLATBERG NATURE RESERVE’ 10
th Respondent
Neutral citation: Maluti -A-Phofung Local Municipality v K LSL Moloi and Others
(1914/2025) [2025] ZAFSHC 171 (10 June 2025)
Coram: Van Zyl J
Heard: 8 May 2025
Delivered: 10 June 2025
Summary : Urgent application – lack of averments to explain lapse of time –
self-created urgency – removed from the roll with costs.
ORDER
1. The application is in toto removed from the roll.
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2. The applicant is ordered to pay the costs of the application, with counsel`s
fees on Scale B.
JUDGMENT
Van Zyl , J
[1] This is an urgent application in terms whereof the applicant is seeking the
following relief:
‘1. That this application be heard as an urgent application in accordance
with the provisions of Rule 6(12) and that the requirements pertaining to service and time periods be dispensed with;
2. That First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth
and Tenth Respondents [hereinafter collectively referred to as “ the
Respondents”] be ordered to vacate the immovable property situated at FARM 131 (REMAINING EXTENT OF PORTION 9, PORTION 88 AND PORTION 105) DORPS GRONDEN VAN HARRISMITH, FREE STATE PROVINCE, ALSO KNOWN AS “PLATBERG NATURE RESERVE” [hereinafter
collectively referred to as “ Platberg Nature Reserve”] ante omnia or
immediately;
3. That, in the event that the Respondents fail or neglect or omit to comply
with the order referred to in paragraph 2 supra, the Sheriff of this Court and
his/her Deputy be authorised and mandated to execute this Order and to evict the Respondents from the Platberg Nature Reserve immediately, and to obtain assistance or support of the South African Police Services to assist him/her in the execution of this O rder, if necessary;
4. That the Respondents be interdicted and prohibited from entering the
Platberg Nature Reserve after they have been evicted from the Platberg Nature Reserve as provided for and envisaged in paragraph 2 supra;
5. That this order be served on the Respondents and published in the
following manner. . .
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6. That the Respondents are entitled to remove and take with them all
their movable property situated at Platberg Nature Reserve upon their eviction
from the Platberg Nature Reserve, including but not limited to livestock, cattle, sheep, goats, chickens and domesticated animals, but excluding game such as zebra, impala, bles buck and/or o ribi;
7. That the Respondents be ordered to pay the costs of this application
jointly and severally, the one to pay the other to be absolved pro tanto, on the scale as between attorney and client, alternatively as between party and party [Scale C] , only in the event of opposition;
8. That such further and/or alternative relief be granted to the Applicant . . .’
[2] The eviction application was issued on 14 April 2025 and served upon the
respondents on 15 April 2025 and 16 April 2025, respectively, excluding the seventh
and eighth respondent s. No return of service in respect of the seventh respondent is
available and the eighth respondent vacated the house in which he resided prior to
service upon him . Service was also effected upon certain other persons who were
apparently present at the Platberg Nature Reserve when the sheriff effected service on the respondents and which persons now form part of the tenth respondent. The
date of appearance reflected on the Notice of Motion and on the said returns of
service is 8 May 2025
[3] On 25 April 2025 the applicant issued an urgent ex parte application, which was
enrolled for 2 May 2025. O n 2 May 2025 Van Rhyn, J issued an order in accordance
with the provisions of section 5(2) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998, which indicated that the application
was to be heard on 8 May 2025. The said Order wh ich was duly served upon the
respondents , except upon the seventh and eighth respondents. Service was again
also effected upon certain ot her persons who were apparently present at the
Platberg Nature Reserve when the sheriff effected service on the respondents . The
date of appearance reflected on the said returns of service is 8 May 2025
[4] The first to sixth respondents are opposing the application and filed an
answering affidavit. The seventh respondent is also opposing the application and
also fil ed an answering affidavit. At the commencement of the hearing Mr Botes, who
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appeared on behalf of the applicant, indicated that I do not presently have to deal
with the seventh respondent, since the applicant and the seventh respondent agreed that the application in respect of t he seventh respondent will be postponed sine die,
with the applicant tendering the wasted costs occasioned by the postponement.
Since the eight respondent left the house which he previously occupied, Mr Botes also indicated that no relief is being sought against him anymore . With regard to the
ninth respondent, Mr Botes indicated that the applicant is also no longer seeking an
order against the said respondent, since they indicated that they will vacate the property freely and voluntarily.
The founding affidavit
[5] The Municipal Manager of the applicant deposed to the founding affidavit.
[6] Although Mr Botes indicated that the applicant is no longer seeking relief
against the seventh, eighth and ninth respondents, I will continue to refer to the parties as referred to in the founding affidavit.
[7] According to the applicant it is the registered owner of the immovable property
situated at the Farm 131 (Remaining Extent of Portion 0, Portion 88 and 105) Dorps
Gronden van Harrismith, Free State Province, also known as ‘Platberg Nature
Reserve’, held by virtue of Title Deeds T[…] and T[…] (‘the Nature Reserve’).
[8] In the founding affidavit t he applicant avers that the first to tenth respondents
‘either reside in the Nature Reserve, or occupy the Nature Reserve and conducting
business from the Nature Reserve’. Further, according to the applicant, the
application is one for ‘the eviction of the respondents from the Nature Reserve, as provided for and envisaged in the Prevention of Illegal Eviction from and Unlawful Occupation Land Act 19 of 1984’, which Act I will he reinafter refe r to as ‘PIE’.
[9] It is the applicant`s case that the respondents are in unlawful and illegal
occupation of the Nature Reserve, as provided for in section 1 of PIE. The
respondents occupy the Nature Reserve without the applicant’s express or tacit consent. The applicant avers that the first respondent declared himself as the King of
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the Bakholokoe Nation in South. The second, third, fourth, fifth and sixth
respondents are the co- trustees of the Bakholokoe Royal Trust Motowana, I […],
hereinafter referred to as ‘the trust’.
[10] According to the applicant the respondents have hijacked the Nature Reserve
and regard it as their property.
[11] The previous entrance at the Nature Reserve consisted of a brick and mortar
building with a thatched roof. The said entrance was recently destroyed by a fire.
The first to sixth respondent s are in the process of constructing a new entrance gate
at the Nature Reserve, comprising of two steel gates and a self -made tent which is
occupied by ‘guards’ . The first to sixth respondent s demand an entrance fee to be
paid by members of the public who visit the Nature Reserve. Attached to the
founding affidavit as annexure ‘ F’ is a copy of a receipt issued for the payment of
such an entrance fee. I will return to this receipt later in the judgment.
[12] The respondents, therefore, control access to the Nature Reserve and prohibit
officials of the applicant to enter the Nature Reserve. The first respondent to sixth
respondents designed a banner or notice which was attached to the main entrance
of the Nature Reserve prior to it being destroyed by fire, which banner depicted the first respondent’s ‘reign’ of the Nature Reserve.
[13] The second to sixth respondents (the trust ) enter into ‘lease agreements’ with
third parties, inter alia , to du mp waste such as blood, contaminated meat and hair on
the Nature Reserve. A copy of such a ‘lease agreement’ entered into and concluded
between the trust and a third party is attached to the founding affidavit.
[14] The respondents harvest timber from the Nature Reserve, which timber is
marketed and sold to the open market. A photograph depicting a vehicle removing
timber from the Nature Reserve, is attached to the founding affidavit.
[15] The respondents furthermore manufacture charcoal from the trees which are
harvested on the Nature Reserve, which charcoal is sold to the public. A photograph
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is attached to the founding affidavit which photograph, according to the applicant,
depicts the area in which the charcoal is manufactured.
[16] The respondents keep cattle and domesticated animals on the Nature Reserve,
which is not permitted. They furthermore conduct hunting activities at the Nature
Reserve, which is also not permitted.
[17] The respondents do not maintain the Nature Reserve, but exploit the natural
resources provided for at the Nature Reserve. Two photographs which, according to
the applicant, depict the extent of the general neglect of the Nature Reserve, are
attached to the founding affidavit. There are furthermore two areas on the Nature
Reserve that can be defined and described as heritage resources, namely graves and remnants of a botanical garden. These areas are protected by virtue of the
National Heritage Resources Act, No. 25 of 1999. The remainder of the Nature
Reserve falls within the ambit of the National Environmental Amendment Act 107 of
1998, the purpose of which act is to protect the environment and to limit any illegal or unlawful use of property which falls within the ambit of this act. These acts ae being transgressed by the respondents.
[18] The seventh respondent developed an extensive compound at the Nature
Reserve, a photograph of which is attached to the founding affidavit. This
development is to enable the seventh respondent to conduct its religious ceremonies and related activities.
[19] Various other dwellings have been unlawfully erected or constructed in the
Nature Reserve, depicted on photographs attached to the founding affidavit.
[20] The eighth and ninth respondents (previously) occupied dwellings on the
Nature Reserve without the applicant’s consent.
[21] According to the applicant the respondents have no valid right in law to occupy
the Nature Reserve or to conduct any business activities on the Nature Reserve. By
virtue of the respondents’ illegal and unlawful occupation thereof, the applicant has no control over the Nature Reserve. According to the applicant i t is in the public
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interest to grant an order in terms of which the respondents are evicted from the
Nature Reserve, as provided for in s 6(1)(b) of PIE.
[22] The applicant concedes that upon their eviction the respondents will be entitled
to remove and take with them all their movable property situated at the N ature
Reserve including, but not limited to livestock, cattle, sheep, goats, chickens and
domesticated animals. They, however, have no right to remove and take with them
any game, such as zebra, impala, blesbuck or oribi.
[23] In respect of the requirements of s 4 of PIE, the deponent to the founding
affidavit avers that ‘I accept for purposes hereof that the respondents are in occupation of the Nature Reserve for a period of more than six months’.
Urgency of the application
[24] With regard to the urgency of the application, the applicant set forth the
following at paras 56 to 59 of the founding affidavit:
‘56.
This application is urgent for the following reasons:
56.1 The Respondents hijacked the Nature Reserve and are stripping the
Nature Reserve of its natural resources, including but not limited to timber and wildlife;
56.2 The Respondents established a charcoal manufacturing plant at the
Nature Reserve, which causes a serious environmental risk, including but not limited to veld fires which may spread to the neighbouring farms causing substantial damage;
56.3 Livestock theft occurs regularly in the surrounding farms adjacent to
the Nature Reserve, which livestock, such as cattle and sheep, are moved to and kept on the Nature Reserve;
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56.4 Two important communication service towers are situated at the Nature
Reserve. The purpose of the aforementioned towers is to monitor the
petrol/diesel pipeline running from Kwazulu -Natal to Gauteng, as well as to
protect the farming community in the area. The towers are equipped with
repeaters which is a vital component for communication between farmers and
the security clusters in an emergency. The Respondents highjacked the
aforementioned telecommunication towers, removed the batteries and repeaters and disallow the service providers access thereto;
56.5 The Respondents harvest timber from the Nature Reserve, which
constitutes a real and imminent danger of substantial injury or damage to any
person or property if the R espondents are not forthwith evicted from the
Nature Reserve;
56.6 The Applicant has lost control over the Nature Reserve, by virtue of the
Respondents’ illegal and unlawful occupation thereof. The likely hardship to
the Applicant if an order for the R espondents’ eviction is not granted, exceeds
the likely hardship to the R espondent s against whom the order is sought. It is
therefore in the public interest to grant an order for the eviction of the
Respondents, as provided for an envisaged in the Notice of Motion.
56.7 The Applicant has no other effective remedy at its disposal, as
provided for and envisaged in section 5(1)(c) of the Act; and
56.8 The Respondents contravene the relevant legislation, referred to in
paragraphs 44 and 45 supra, which in itself cannot be tolerated any longer. 57.
The Applicant will, for obvious reasons, not be afforded substantial redress in
due course if this application is not heard on an urgent basis.
58.
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The Nature Reserve constitutes a public heritage site, which must be
protected and preserved at all costs. The Respondent s have no right in law to
continue with their illegal and unlawful activities at the Nature Reserve.
59.
The Applicant receives no benefit or advantage as a result of the respondents’
illegal and unlawful occupation of the Nature Reserve. The Applicant is
therefore duty-bound and responsible to approach this Court on an urgent
basis so as to restore law and order. The Respondents have no right to take
the law into their own hands and to remain in occupation of the Nature
Reserve any longer.’
The answering affidavit
[25] The answering affidavit filed on behalf of the first to sixth respondents was
deposed to by the first respondent, who is also the fourth respondent in his capacity as one of the trustees of the trust.
[26] According to the first to sixth respondents the Bakholokoe Kingdom are the
custodians of the land on which the Nature Reserve is situated, given the history of
the property.
[27] The first to sixth respondents do not deal with the merits of the application in
their answering affidavit, but mainly rely on two points, on the basis of which they
submit that the application should be dismissed with a punitive cost s order. The two
points are firstly that the applicant did not make out a proper case for urgency and
secondly, the applicant`s non- compliance with the provisions of PIE. In respect of
urgency the first to sixth respondents point out, inter alia , that the applicant admits
that the respondents have been in occupation of the Nature Reserve for more than six months, but does not indicate the date on which the alleged ‘highjacking’ of the
Nature Reserve by the defendants occurred.
Replying affidavit
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[28] No replying affidavit was filed on behalf of the applicant.
Legal principles in respect of ur gency
[29] In Nelson Mandela Metropolitan Municipality & Others v Greyvenouw CC &
Others 2004 (2) SA 81 (SE) the court pronounced as follows , para 34:
‘In this case, the first applicant did not drag its feet. It undertook efforts to
resolve the problem that it had found at Crazy Zebra by notifying the owners of their alleged non- compliance with the law, by attending a meeting in an effort to
resolve the problem and when that failed, by requiring an undertaking. When
that was not forthcoming, it investigated further so that it had evidence of the
level of noise emanating from the Crazy Zebra. In my view it approached its
statutory duty of safeguarding the rights and interests of rate- payers in a
responsible manner by seeking to persuade the respondents to comply and only then approaching the Court for relief. In these circumstances, it cannot be
said that the first applicant has been dilatory in bringing the application. There
is consequently no merit in this point.’
[30] The judgment of Schweizer Reneke Vleis (Mkpy) (Edms) Bpk v Minister van
Landbou & Andere 1971 (1) PH F11 (T) is considered to be the locus classicus on
self-created urgency, where the following was stated at F11 – 12:
‘Volgens die gegewens voor die Hof wil dit vir my voorkom dat die applikant
alreeds vir meer as ‘n maand weet van die toedrag van sake waarteen daar
nou beswaar gemaak word. Die aangeleentheid het slegs dringend geword
omdat die applikant getalm het en omdat die tweede respondent, soos die applikant lankal geweet het, of moes geweet het, van die besigheid in Schweizer -Reneke geopen het. Die applikant mag gewag het vir inligting van
die eerste respondent soos in die skrywe aangevra maar dit was geensins nodig vir die doeleindes van hierdie aansoek, wat op die nie- nakoming van die
audi alteram partem -reël gebaseer is, om so lank te wag om die Hof te nader
nie. Al hierdie omstandighede inaggenome is ek nie tevrede dat die applikant
voldoende gronde aangevoer het waarom die Hof op hierdie stadium as a saak van dringendheid moet ingryp nie. Ek is dus, in omstandighede, nie bereid om
af te sien van die gewone voorskrifte van Reël 6.”
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[31] In Tukela v Minister of Public Works [2017] ZALCPE 29 the Court referred to
the aforesaid Schweizer Reneke Vleis -judgment and held as follows at paras 14 –
15:
‘[14] It is trite that an Applicant cannot create his or her own urgency by
delaying bringing an application. This Court will not come to the assistance of
an applicant who has delayed approaching the Court. See National Police Services Union & Others v National Negotiating Forum & Others (1999) 20 ILJ
1081 (LC) at 1092 paragraph [39] where Van Niekerk, AJ (as he then was) stated the following: “The latitude extended to parties to dispense with the rules of this court in
circumstances of urgency is an integral part of a balance that the rules attempt to strike between time- limits that afford parties a considered
opportunity to place their respective cases before the court and a recognition that in some instances, the application of the prescribed time- limits or any
time-limits at all, might occasion injustice. For that reason, rule 8 permits a
departure from the provisions of rule 7, which would otherwise govern an application such as this. But this exception to the norm should not be
available to parties who are dilatory to the point where their very inactivity is
the cause of the harm on which they rely to seek relief in this court. For these reasons, I find that the union has failed to satisfy the requirements relating to urgency. ”
[15] I am in light of the afore- going of the view that the Applicant has created
her own urgency by the substantial delay. I am of the view that the application falls to be struck of the role.’
[32] In Director of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd t/a
E TV 2006 (3) SA 92 (C) the aforesaid principle was stated as follows at para 47:
‘The next question to determine is whether the matter was urgent or that an
urgency was self -created. It is correct that an applicant cannot create its own
urgency by delaying bringing the application until the normal rules can no longer be applied. ’
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[33] Arising from and connected to the aforesaid principle, is the consequent
obligation on an applicant in an urgent application to explain all periods of delay for
purposes of making out its case for urgency. The relevant principle applicable to condonation applications in this regard is consequently mutatis mutandis applicable
to an urgent application. In High Tech Transformers (Pty) Ltd v Lombard (2012) 33
ILJ 919 (LC) the importance of a reasonable and acceptable explanation for a delay was accentuated at para 25 of the judgment:
‘[25] . . . Condonation is not merely for the asking as was duly pointed out by
the court in NUMSA & another v Hillside Alluminium [2005] 6 BLLR 601 (LC):
“[12] Additionally, there should be an acceptable explanation tendered in
respect of each period of delay . Condonation is not there simply for the asking.
Applications for condonation are not a mere formality. The onus rests on the applicant to satisfy the court of the existence of good cause and this requires a full, acceptable and ultimately reasonable explanation. … Nevertheless, to do
justice to the aims of the legislation, parties seeking condonation for non-compliance are obliged to set out full explanations for each and every delay
throughout the process .”’ (My emphasis .)
Consideration of the urgency
[29] The first step which the applicant took in respect of the eviction application
which is evident from the founding affidavit, was the Municipal Manager` s deposing
to the said affidavit on 24 April 2025 and the issuing of the application on the same
date.
[30] I have already mentioned that the applicant pertinently indicated in its founding
affidavit that it accepts that the respondents are in occupation of the Nature Reserve for a period of more than six months. However, the applicant did not take the court
into its confidence by explaining what events preceded the issuing of the urgent application on 14 April 2025. The applicant did not present a shred of evidence as to
how it came about that the respondents started occupying the Nature Reserve, when it happened and most importantly, when it came to the knowledge of the applicant.
[31] When I raised the aforesaid issues with Mr Botes , he tendered the ‘evidence’
from the bar that the applicable circumstances at the Nature Reserve only came to
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the attention of the applicant when the applicant’s attorney of first instance went to
investigate the situation at the Nature Reserve and he was issued with the so- called
receipt which I have already referred to earlier in my judgment , annexure ‘F’ attached
to the founding affidavit. According to Mr Botes the receipt was issued in the first
name of his attorney of first instance. O n face value of the receipt, it was issued on
19 January 2025 in the amount of R50.00 or R80.00 (the figure is unclear) . It also
reflects the registration number of a vehicle.
[32] Not only has it not been alleged in the founding papers that that receipt was
indeed issued to the applicant’s attorney of first instance, but no background
information is provided as to what prompted the attorney to have gone to the Nature
Reserve to ‘investigate’ the situation and/or when the facts alleged in the founding
affidavit, came to the knowledge of the applicant’s attorney of first instance and/or
the knowledge of the applicant itself. This is an entirely unexplained lacuna in the case of the applicant regarding alleged urgency considering that the applicant`s own
concession is that it accept s for purposes that the respondents are in occupation of
the Nature Reserve for a period of more than six months already .
[33] Furthermore, there is not a single allegation as to what steps the applicant took
or what occurred between 19 January 2025 (at the latest for the applicant), when the
receipt was received and 14 April 2025 when the urgent application was issued. No
attempt whatsoever was made to explain the relevant lapse of time. In this regard Mr
Botes attempted to provide explanations and ‘evidence’ from the bar, which obviously cannot, in the absence thereof in the founding papers, be taken into consideration.
[34] In the circumstances I cannot but find that any urgency that may exist, is self -
created urgency. No proper case for urgency has consequently been made out by the applicant.
[35] The application therefore stands to be removed from the roll.
[36] Due to my aforesaid finding, I deem it unnecessary to deal with the alleged
non-compliance with PIE.
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The position of the seventh respondent
[37] I have earlier in the judgment recorded that Mr Botes indicated to me that I
need not deal with the defence of the seventh respondent at this stage, since the applicant and the seventh respondent have agreed that the application in respect of the seventh respondent, is to be postponed sine die, with the applicant tendering the wasted costs occasioned by the postponement. I enquired from Ms Ngubeni, who
appeared on behalf of the seventh respondent, what her submission is what is to
happen in respect of the seventh respondent should I find that the applicant failed to
make out a proper case for urgency. She submitted that should I make such a
finding, it should also pertain to the applicant and the seventh respondent, despite
their agreement.
[38] I agree with the submission of Ms Ngubeni. I cannot allow the agreement
between the applicant and the seventh respondent to stand in circumstances where the application is not accepted onto the urgent roll.
Order:
1. The application is in toto removed from the roll.
2. The applicant is ordered to pay the costs of the application, with
counsel`s fees on Scale B.
VAN ZYL J
Appearances:
For the Applicant: FC Botes SC
Instructed by: Niemann Grobbelaar Attorneys
Bethlehem
C/O H endré Conradie Inc (HAT1/281(JHC/ AB))
Bloemfontein
E-mail: e-service@rossouws.com
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For the First to Sixth Respondents: In Person
E-mail: lengolistooo@gmail.com
sikamoloi@gmail.com
For the Seventh Respondent: Adv T Ngubeni
Mncedisi Ndlovu & Sedumedi Attorneys .
Ilovo
C/O Poswa Attorneys
Bloemfontein
E-mail: Nigel.Masalla@poswainc.co.za
Feziwe@ndlovu- sedumedi.co.za
Thobani@ndlovu- sedumedi.co.za
Ayanda@ndlovu- sedumedi.co.za