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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA )
Case :1832/2025
In the matter between:
L[...] G[...] First Applicant
And
ANELISA NDZEKENI First Respondent
UNKOWN PERSONS ACTING
IN HIS STEAD Second Respondent
STATION COMMANDER, MTHATHA
POLICE STATION Third Respondent
JUDGMENT
NOBATANA AJ:
[1] The applicant issued papers from this court on the 15th of April 2025, in which
she sought relief on an urgent basis, interdicting and restraining the first and
the second respondents from continuing with construction in the applicant ’s
site, pending the finalization of pending proceedings between the parties
regarding the same site , and other anciliary relief . Such proceedings were
said by the applicant to be pending in the opposed motion court under case
number 5390/2021. The pending proceeding s have not yet been allocated a
date of hearing.
[2] The applicant also, in her notice of motion , provided a truncated time table
within which the parties more specifically the respondents must file opposing
papers. The notice of motion , provided that the respondents must file such
papers no later than 12h0 0 on Wednesday the 16th of April 2025. On the 15th
of April 2025 , my sister Noncembu J issued the following directive regarding
the conduct of the matter “Respondents to be served by tomorrow, 16 /05/25
by 11h00. Matter set down for hearing at 14h15 on the 16th of April 2025 ”.
[3] The first respondent was served with the notice of motion and the founding
affidavit, including the annexures thereto by the sheriff, at 8h34 on the 16th of
April 2025, on the same day the parties appeared before me at 14H15 , the
first respondent had only managed to file a notice of opposition, and wanted
more time to file and answering affidavit. After some discussions the parties
agreed that the matter will be postponed for argument for the 25th of April
2025, and the first respondent respondent will file answering affidavit on the
22nd of April 2025. The first respondent made an undertaking not to continue
with construction on the disputed property pending the final determination of
this application. The first respondent filed her answ ering affidavit in th is
application on the 22nd of April 2025 .
[4] The applicant alleges in h er founding affidavit that she is an adult residing at
Rosedale location in the district of Mthatha . She was allocated the site by the
then sub headman of Highbury location, one Vuyani Nyingwa “Nyingwa”, the
site was meant to be a dwelling settlement for his family which includes her
children, S[...] G[...] ; A[...] G[...] ; L[...] G[...] and X[...] B[...]. At the time when
the site was allocated to her, as aforesaid Nyingw a, was a chairman of the
committee, which was elected and charged by the comm unity with the task of
allocating sites.
[5] After allocation of sites, which included the site of the applicant , the committee
prepared a list of the allocated site s and submitted it to the local chief
Ntabozuko Njemla, for his approval. The applicant in her founding affidavit
does not state whether chief Ntabozuko Njemla approved of the list, and what
the duty of the chief was in the process of the allocation of the sites.
Importantly Nyingwa states in his confirmatory affidavit to the founding
affidavit at paragraph 4 thereof that “I wish to emphasise that I am the one
who wrote the letter dated 09 December 2021 which was confirming the
allocation of the site to L[...] G[...] (sic)(the applicant) and at the time it was my
tenure of being the chairperson of the committee so elected and further I was
the sub headman , I wish to further confirm that it was me who submitted the
name list to the local chief Ntabozuko Njemla to confirm such allocation and
this site belongs to L[...] G[...] not to Anelisa Dzikeni as she claim in the
pending case .” There is no confirmatory affidavit to the applicant’s founding
affidavit from chief Ntabozuko Njemla.
[6] The applicant further states in her founding affidavit that on t he 19th of
December 2021, she instituted motion proceedings in this court, on an urgent
basis under case number 5390/20 21 referred to above , in which she applied
for an interdict, interdicting the same respondents from continuing to construct
on her site at Highbury location in the district of Mthatha.
[7] She states that there were some court orders granted in her favour
interdicting the same respondents in Case No.5930/2021 , and one of such
orders was later challenged by the first respondent in an application for
rescission . The rescission application was granted on the 23rd of January
2025, as a result of first respondent , was given leave to file answering papers
to oppose the said proceedings in case number 5390/20 21 as
aforementioned . All the papers in those proceedings have been filed, and the
parties are awaiting the allocation of the date for argument of that application .
The applicant has not attached any of the court orders referred to in her
founding affidavit, she has also not mad e the file under case number
5390/ 2021 available to the court , at the hearing of this application .
[8] She further states in her founding affidavit to this application that o n the 14th of
April 2025 at about 07h50 in the morning , she noticed that there are people
continuing with the construction in her site, she approached them and
enquired as to who had employed them to do the construction on the
property , she was told by said builder s that it was the first respondent . She
tried to call the first respondent her attempt to do so was unsuccessful . She
asked her child A[...] to witness the construction, and they also took
photographs of the construction. She decided to approach her pres ent
attorneys of record and instructed them to institute the present proceedings.
[9] The ground s for urgency , as stated in the applicant ’s founding affidavit in this
application are that the re spondents are proceeding with the construction ,
without a court order, and are thus taking the law into their own hands, and
that the court must intervene to stop the harm . The applicant concedes that
she might be compensated by the applicant if she is succ essful, the first
respondent will not suffer an y harm , if the interdict is granted as she is fully
aware of the pending court proceedings.
[10] She states on the same breath that she does not have alternative remedy,
she has a clear right , as she was lawfully allocated the site, as aforesaid. The
harm that she is suffering as a result of the ongoing building is continuing .
She further submit s that the balance of convenience favours the bringing of
this application . She is awaiting the hearing of the application that is pending
in the opposed court under case number 5390/2021 , and that the action of the
first respondent would stop her from getting substantial redress in due course .
She submits in her founding affidavit to this application that she has
accordingly met the requirements for an urgent interdict .
[11] The first respondent filed her answering affidavit in this application on the 22nd
of April 202 1 in which she states that in 2015 the applicant together with other
residents of Rosedale location approached the committee that is responsible
for the allocation of sites in Highbury location, and requested to be allocate d
sites for residential purposes, in an unoccupied land in Highbury location. The
allocation committee consisted of seven members who are all residents of
Highbury location and not Rosedale location, wh o are as follows: Mbuyiselo
Dyalvane; (chairperson of the committee); Vuyani Nyingwa; Nondwe Flara;
Thandeka Mtyali; Phumeza Mapanzela; Xoliswa Mdolomba, and Welile
Mzimane. The said members of the allocation commi ttee were elected by the
residents of High Bury location, including the local headman.
[12] The allocation committee, according to the first respondent, took a list of all
the persons who wanted to be allocated land in High Burry location. The said
list included the name of the applicant. The was a territorial dispute between
the residents of Rosedale and Mpindweni locations over preference to be
allocated residential sites. Each side claimed preference vis a vis the other by
the committee .
[13] In June 2017, according to the first respondent, it was resolved, by the
allocation committee that the sites must be allocated to the youth of High bury,
including members of the allocation committee, as a result no residential site s
were allocated to the a pplicant as she was a resident of Rosedale location
and not a resident of Highburry location . The site which is at the heart of the
dispute between the applicant and the first respondent in this application was,
consequently allocated to one, Phumeza Mapanzela “Mapanzela”, who was at
the time a member of the allocation committee, although accordi ng to the first
respondent, the name of the said Mapanzela does not appear in the allocation
list. Mapanzela was allocate d the site , on the basis of the resolution of the
allocation committee, as pointed out above since she was a member o f the
allocation c ommittee.
[14] Mapanzela, having acquired the site on basis as se out above, sold the
vacant site to the first respondent, for an amount of R60 000,00 in October
2017. The first respondent paid the purchase price in three instalments, which
were paid through the medium o f three electronic fund transfers by the first
respondent to Mapanzela. Upon the payment of the purchase price as
aforesaid, the first respondent took occupation of the property and fenced it.
She later commenced construction of a residential home on the p roperty.
[15] On the 1 9th of December 2021 as pointed out above1, the applicant issued an
application on an urgent basis under case number 5390/2021 in which she
sought relief, that the first respondent be interdicted from erecting dwel lings
on the applicants allocated site, located at High Bury location and further that
the respo ndents in that application be interdicted from demarcating and sub -
dividi ng the applicant’s site locate in High Bury location, and that the
demarcation an subdivision and further allocation of the applicant’s site
located in High bury location , be declared to be unlawful and of no force and
effect.
[16] The matter was postponed a number of times, and on the 25th of January
2022 my brother Nhlangulela DJP issued an order that the matter is
postponed to the 1st of February 2022 for settlement purposes, further
ordered, importantly , at paragraph 2 of the order , that:
“2. The respondent shall not continue to work on site until the
matter is settled or finalised “
[17] Costs were reserved, on the 1st of February 20222, the matter wa s removed
from the roll and the parties were directed to file papers in terms of an agreed
timetable . During the argument of this application, both parties indicated to the
court that all the papers were filed in compliance with this order, and all that
they are presently waiting for is the allocation of a date for argument of the
opposed application in the case number 5390 /20212.
[18] On the 1st of August 2023, the first respondent was served with a court order
dated 4th of April 2022, in terms of which she was interdicted from
constructing on the property .
[19] The members of the allocation committee were also cited as respondents in
that application, they included Mapanzela . In October 2022 the first
1 In paragraph 6 of this judgment.
2 See paragraph 7 of this judgment.
respondent inst ituted proceedings to have the order rescinded . On the 2 3th of
January 2025, the order was rescinded, the applicant was granted leave to file
an answering affidavit in case number 5390/2021 .
[20] She state s that upon the order being rescinded, she commenced with
construction on the site, and on the 17th of February 2025 she delivered her
answering affidavit in case number 5390/2021 . In the answering affidavit in
case number 5930/2021 which was served on the applicant , she stated as
follows:
“…. I demonstrated that the applicant is not the owner of the
immovable property, which has given birth to the current litigation. In
this regard I attached an affidavit of the member of the committee who
was [at the time ]responsible f or the allocation of sites at High Bury
Location, who confirmed that no site was allocated to the applicant at
High Bury location between 2013 and 2017; and
….I intimated to the applicant that, following the recession of the court
order issued by the Honou rable Madam Rusi J on 04 April 2022 and
my attainment of the immovable property, I had commenced with the
building of a house for my family, which would be complete by
December 2025 …” (emphasis added) .
[21] These allegation s are also contai ned in paragraph 23.15 of the first
respondent’s answering affidavit to this application, as pointed out above ,
both parties confirmed that they have filed all the papers in the main
application (case number 5390/2021) . The first respondent further states , in
her answering affidavit to this application that the applicant filed h er replying
affidavit , in the main application in March 2025 (case number 5390/2021) . The
applicant replied to the allegation of continuing construction , para -phrased in
paragraph 2 0 of this judgement that “…(sic)(the)…issue of completing
construction …is also illegal and it was for this reason that the court needed to
intervene …”. According to the first respondent , the applica nt became aware of
the continuing construction on 17th of February 2025 when she was served
with the answering affidavit in case number 5390/202 1 and not on the 14th of
April 2025, as alluded by her in the founding affidavit to this application .
[23] The first respondent opposes the applicants application on the following
grounds, that applicant has failed to set out any reasons which render the
application urgent, and has failed to establish that she will not obtain
substantial redress in due course, further more, if there is any urgency, in the
matter it is self created, secondly she did not satisfy the grounds for the
granting of an interdict, the relief sought by the applicant in the notice of
motion is in its terms incompetent, the relief sought a gainst the police is also
incompetent.
[24] The legal representatives for the first respondent did not indicate during
argument that they were instructed to act for the third respondent (the police) ,
and accordingly any submission made by them on behalf of the third
respondent have not been taken in to account for the purposes of this
judgment.
[25] It is was also not in dispute between the parties, that the order of my brother
Nhlangulela DJP, referred to above3, still stands and has not be rescinded or
in any way been challenged, all that was submitted by Mr Ntikinca, on behalf
of the applicant was that, the applicant has alternate remedy to enforce the
order of Nhlangulela AJP.
[26] In view of the deci sion that I have reached with respect to the question
whether this application is urgent , and the impact of the order of Nhlangulela
AJP, it will not be necessary for me to deal with the other ground s on which
this application is being a ttacked by the first respondent.
[27] It is also important to state at the outset that the applicant did not file a
replying affidavit, in these proceedings . This was raised by the court
pertinently with the Mr Mkhongozeli, the attorney for the applicant who
3 At paragraph 16 of this judgment.
appeared on h er behalf . He stated that he did not fi nd it necessary to file a
replying affidavit as the first respondent made common cause with the
applicant on the crucial issue , according to him, of whether she was allocated
the site by the allocation committee.
[28] It is trite that if applicant fails to file a replying affidavit, to put in issue the
allegations stated in respondent ’s affidavit such allegation, by the first
respondent in this case , will stand as uncontested against the applicant. This
will be crucial to my finding in this application for the reason that will appear
below.
[29] With regard to urgency the first respondent contends that the applicant has
failed to set out facts from which it can be found that the matt er is urgent, and
that the applicant cannot obtain substantial redress indue course, and that if
there is urgency in the matter the application cannot be treated as urgent as
the urgency is self-created .
[30] The applicant on other had in reply to the contention by the first respondent
that the application is not urgent, contends that the fact that the first
respondent on the 16th of April 2025 made an undertaking not to continue
building on the property pendin g the final determination of this application,
amounted to a concession on the part of the first respondent that the
application was urgent. The first respondent disputes this submission that is
made on behalf of the respondent and in doing so relies on th e dicta by
Harms J A (as he then was) in Memory institute SA CC t/a Memory Institute
V Hansen and others (253/02)[2003]ZASCA44 2004(2)SA630(SCA) at
paragraph 10 of the judgment where the learned Judge of appeal (as he then
was) says : ‘…interim orders and rule nisi are not to be had simply for the
asking. Courts should satisfy themselves that a proper case has been made
out…”
[31] I am in agreement with Mr Ntikinca for the first respondent, the fact that the
applicant made an undertaking , does not amount to a concession that the
matter is urgent, no r is a provisional ruling in a directive in terms of the
directives of this division, the undertaking was made before detailed
instructions have been obtained by the legal representative from its client .
This was to ensure that all the papers are filed in t erms of the timelines
truncated by the applicant, in ensur ing that on the date of the hearing the
dispute is proper ly ve ntilated and a proper decision was taken after
considering all the relevant facts and circumstances of this application . The
first respondent cannot be prejudiced by his act of accommodating the
applicant in these circumstances.
[32] Further when a directive is issued, directing that the matter be heard as
urgent, it is issued only on the version of the appellant, the version of the
respondent is not taken into account at th at stage. The respondent cannot
lose his right to have his say which, is a conner stone of our legal system that
both parties must be heard before a decision is made. I am for these reasons
prepared , and will hear the first respondents submissions on urgency
[33] Having perused the papers which constitute the recor d in this matter and
having heard submissions from the parties , I am of the view from the
applicants founding affidavit that the applicant has set out facts that render the
applicant to be sufficiently urgent to be heard in term of rule 6 (12) , however ,
the enquiry whether the application should be heard as a n urgent one in terms
of the sub-rule does not end there, it is trite that in addition a more immediate
reaction by the lit igant to remedy the situation is necessary to establish
urgency .The longer the applicant takes from the date of being aware of the
event giving rise to the injury sought to be interdicted , the more the urgency
is undermined , thus the urgency must not be self-created.
[34] The position in relation to delay in bringing an application was put as follows
by Waglay J (as he then was) in Valerie Collins t/a Waterkloof Farm v
Bernickow NO and Another (C1173/01 [2001]ZALC223(7 December 2001)
“…if the applicant seek this court to come to its assistance it must com e to the
court at the very first opportunity it cannot stand back and do nothing and
some days latter seek the courts assistance as a matter of urgency ”
[35] This matter is a typical example of an urgency that is self-created , for the
following reasons, the uncontested allegation of the firs respondent is that in
her answering affidavit, to the proceedings under case number 5390/2021 ,
which was served and file d on the 17th of February 2025, she stated to the
respondent that “… I intimated to the applicant that, following the rescission of
the order by the Honourable Madam Russi J on 4th April 2022 and my
attainment of immovable property , I had commenced with the building of the
house for my family, which I will complete by Dece mber 2025 .” (emphasis
added) . This allegation as stated above is contained in paragraph 23.15 of the
first respondent’s answering affidavit in this application , to which there was no
reply from the applicant . It is uncontested.
[36] Accordingly, applicant knew as early as the 17th of February 2025 that the
first respondent was continuing with the construction of the house in the
property that is the subject matter of this dispute in this matter, which is a
period of exactly, two months before those proceedings were instituted as
these proceedings were instituted .
[37] The applicant did not in his founding affidavit, take this court into his
confidence and state anything rega rding such knowledge, she also did not
see it fit when she was served with the answering affidavit in this application
which contained this express allegation at paragraph 23.15, to file a replying
affidavit to deal with the allegation . In reply to this allegation in the main
application that is pending before court under case number 5390 /2021 the
applicant merely stated “…(sic)(the)…issue of completing construction …is
also illegal and it was for this reason that the court needed to intervene …” she
does not even warn the first respondent of her intention to institute these
proceedings at that stage .
[38] For this reason I find that the applicant being aware that the first respondent
was busy with construction on the site, delayed for a period of two months to
bring this application . I further find that the allegation in applicants founding
affidavit in the se proceedings , at paragraph 14 of the applicants founding
affidavit, which is the foundation for his allegation that this application is
urgent, which reads as follows, “on the 14th of April 2025 at about 07h50 in the
morning I noticed that there were peo ple who were busy constructing on my
site at High Bury location…” is not a true account of the state of affairs in
relation urgency in this matter.
[39] The applicant was informed by the first respondent that she was continuing
with construction on the site as early as the 17th of February 2025, he chose
to ignore such a warning from the first appellant and only went to inspect the
site two months later, hence th is belated urgent application. T his court cannot
under these circumstances come to the assistance of the applicant.
[40] There is another reason why this application cannot succeed, during the
hearing of this matter, and this fact is confirmed by one of the orders annexed
to the answering affidavit of the first respondent marked “AA 7” , and it was
common cause between the p arties that there was an order that was granted
by Nhlangulela AJP , on the 25th of January 202, which interdicts the
respondent from continuing with construction on the site, this is the same
relief that the applicant is seeking in these proceedings, ther e is accordingly
no basis for the relief sought by the applicant in these proceedings, let alone
on an urgent basis, as the applicant has already been granted relief by this
honourable court. These proceedings are an attempt by the applicant to
obtain a duplicate relief that was already granted to her on the 25th of
January2022 , it is an abuse of the proce sses of this court , and for this further
reason no order can be granted in favour of the applicant , in this application .
[41] In the circumstances the following order will issue :
1. The application is dismissed with costs .
_________________________ _____________
M W NOBATANA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
ON BEHALF OF THE APPLICANT
Mr H N Mkhongozeli
Attorney for the Applicant
H N Mkhongozeli Attorneys
55 Nelson Mandela Drive
Barbaras Guest House
Block E -Unit 6
Mthatha
Email: hn.mkhongozeliattorneys@gmail.com
Tel: 047 050 48 71
ON BEHALF OF THE FIRST RESPONDENT
Adv L Ntikinca
Counsel for the first respondent
Instructe d by
T.H. Luzipho
First Floor Steve Motors Building
Mthatha
Email: tlluzipoattorneys@telkomsa.net
Date heard : 25 April 2025
Judgment delivered on : 15 May 2025