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[2025] ZAKZPHC 73
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Ulundi Municipality v Mpungose and Others (6551/2020) [2025] ZAKZPHC 73 (24 July 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION
PIETERMARITZBURG
CASE NO: 6551/2020
Before: Honourable
Ncube J
Heard on: 14 April
2025
Delivered on: 24 July
2025
In the matter between:
ULUNDI MUNICIPALITY
Applicant
and
INDUNA
MPUNGOSE
1
st
Respondent
INDUNA
NDWANDWE
2
nd
Respondent
INDUNA
NGOBESE
3
rd
Respondent
INDUNA
NXUMALO
4
th
Respondent
INDUNA
LAMULA
5
th
Respondent
THE
UNLAWFUL OCCUIERS OF THE LAND
6
th
Respondent
INGONYAMA
TRUST
7
th
Respondent
ORDER
In
the result. I make the following order:
1.
The
application for condonation of late filing of the practice note and
Heads of Argument is granted.
2.
The first to the fifth respondents and any
person acting through the first to the fifth respondents are
interdicted and prevented
from allocating land to individuals in the
areas marked with X in annexure ‘’C’’ (‘’the
property).
to the Notice of Motion
3.
The first to the fifth respondents are
interdicted and prevented from authorizing persons to build on the
property without the approval
of the applicant.
4
The
sixth respondents ‘’(the respondents’’) and
any person acting through the persons falling under the
sixth
respondents and all other persons (‘’the respondents’’)
who are constructing structures and those
preparing to put up
structures on the property in the areas identified in the photographs
attached to the founding affidavit marked
‘’HI’’
to ‘’H8’’ are directed to dismantle and
remove the structures and all the
building material on the property
within five days of this Order, save for completed structures.
5
The respondents are hereby interdicted from
continuing with the building of structures on the property.
6
Should the respondents fail to dismantle the
structures within three months of this order the applicant is granted
permission to
dismantle and demolish the structures and remove any
building material shown in the photographs marked ‘’H1’’
to ‘’H8’’, to the founding affidavit.
7
The first to the sixth respondents are
interdicted and prevented from encouraging, inciting or purporting to
give permission to
others to occupy or erect structures on the
property without the prior permission of the applicant.
8
The respondents and all other persons are
interdicted from carrying out any further construction work,
including but not limited
to levelling the land, building blocks,
bringing building material to the property and from erecting any
structure on the property;
9
The respondents are interdicted and restrained
from:
9.1
entering upon or remaining upon the property;
for the purpose of putting up unauthorised buildings or structures
9.2
encouraging other people to enter upon or
settle on the property for purpose of putting up unauthorised
buildings or structures.
10.
The applicant is directed to publish the contents of this order in
the local newspaper, the local radio station
and by
putting it up in the notice boards of the Municipal building.
11.
The first to third and the fifth and the seventh respondents are
jointly and severally, the one paying the other to be
absolved, are
directed to pay the costs of the application
on the scale ‘’C’’.
JUDGMENT
NCUBE
J
Introduction
[1]
This is an application for a final interdict. The applicant
(’the Municipality’’)
seeks relief
restraining first to fifth respondents from allocating land to
people, including members of the sixth respondent (’
unlawful
occupiers’). The municipality also seeks an interdict, in
the form of mandamus, directing the unlawful occupiers
to dismantle
the structures already erected on the municipal land without
authority. At the hearing of the application, Mr
Kuboni,
Counsel for the Municipality, indicated that the Municipality does
not seek demolition of already completed structures.
[2]
The first to third and the fifth and seventh respondents opposed the
granting of the relief sought.
The fourth respondent did not
participate in the proceedings and did not file an answering
affidavit. The second respondent
deposed to an answering
affidavit on behalf of himself, first, third and fifth respondents.
One Busisiwe Mkhize deposed to
an answering affidavit on behalf
of the seventh respondent (’Ingonyama Board’’).
There was no appearance
for the first to third and fifth to sixth
respondents at the hearing. An attorney who previously
represented the first to
third and fifth respondents withdrew.
No new attorney came on record. The applicants’ attorney
telephoned the
previous attorney for first to third and fifth
respondents, Mr Motha, who confirmed that izinduna were aware of the
hearing date
but they were not in attendance. Counsel for the
Ingonyama Board was in attendance. The matter continued in the
absence
of izinduna.
Factual Background
[3]
It is not in dispute that izinduna who are under Mpungose Tribal
Authority have been allocating
sites to certain individuals to build
their houses. Izinduna do not deny that they never obtained the
permission from the
Municipality to allocate sites. They
contend that the land in question belongs to Mpungose Tribal
Authority and not to the
municipality. The Municipality sought
on urgent interdict against izinduna. The interim order was, on
07 June 2021,
confirmed against the fourth respondent (‘’Induna
Nxumalo’’)on the understanding that induna Nxumalo had
no
authority from either Inkosi Mpungose or from the Mpungose
Traditional Council to allocate sites.
[4]
It is common cause that the Municipality has a constitutional duty to
provide services like houses,
water and sanitation to members of the
public at local level. The Municipality is also empowered by
different pieces of legislation
to ensure that structures erected on
municipal land are built in accordance with relevant pieces of
spatial development framework
land use schemes and applicable
regulations. It is not in dispute that in allocating sites to
members of the public, Izinduna
did not obtain approval from the
Municipality. The people allocated sites also did not have
their building plans approved
by the Municipality.
Issues
[5]
The application was argued without the benefit of Heads of Argument
from the first to third and
fifth and sixth respondents as those
respondents did not appear but had filed an answering affidavit.
The seventh respondent
appeared and filed Heads of Arguments. From
the answering affidavits it appears that the first to third and fifth
respondents are
in agreement with the seventh respondent who has
raised an issue of non – joinder of the Inkosi Mpungose and the
Mpungose
Traditional Council. Basically, the respondents
contend that the land on which izinduna allocate sites belongs to the
Mpungose
Traditional Council which is under the authority of the
Inkosi Mpungose, that in allocating sites Izinduna act as agents of
the
Inkosi and the Traditional Council. Respondents therefore
argue that relief sought by the Municipality cannot be granted if
the
Inkosi and the Traditional Council are not before court.
[6] The second
issue relates to non – compliance with the National Building
Standards Act. Ingonyama Board argues
that the proper forum, in
terms of section 21 of the National Building Standards Act is the
Magistrate’s Court not the High
Court. This argument is
coupled with the requirement of no other satisfactory remedy in
interdict applications. If the Municipality
has the option of
approaching the Magistrates Court, in terms of section 21, the Board
argues, it means the Municipality has an
alternative remedy and the
order of interdict may not be granted.
Non – Joinder
[7]
As stated earlier in this judgement, the respondents contend that
Inkosi Mpungose and the Mpungose
Traditional council should have been
joined as parties is these proceedings. It is trite law that
the test whether there
has been non – joinder is whether a
party has a direct and substantial interest in the subject matter of
litigation
which may prejudice the party that has not been joined
[1]
in
Gordon
v Department of
Health
[2]
it was held that if an order or judgement cannot be sustained without
necessarily prejudicing the interests of the third parties
that had
not been joined those third parties have a legal interest in the
matter and must be joined.
Will
the Relief Sought Prejudice. The interest of inkosi Mpungose
and The Traditional Council
.
[8]
The answer to the above question depends on whether the Inkosi and
the Traditional Council
have a right
to allocate sites on the land in question. Izinduna as agents
of the Inkosi and Traditional Council, cannot
enjoy and exercise
powers which their principal does not have. It is not in
dispute that in 1992, the then Minister
of Interior in erstwhile
Kwazulu Government extended the township of Ulundi to include certain
areas. The land in question
is one of those areas. On 01
February 1995 the member of Executive Council for Local Government
and Housing in terms of powers
vested in him by section 10 of the
Local Government Transition Act
[3]
, established the Ulundi Transitional Local Council. The land
in question is therefore under the jurisdiction of Ulundi
Municipality. In terms of section 4A (4) of the Ingonyama Trust
Act
[4]
, any land which prior to
the amendment Act 1997, vested in the Ingonyama in terms of section 3
(1) and which has not been registered
in private ownership shall, if
the land is situated in a township, vest in the local authority
having jurisdiction over such township.
[9]
Further, section 4A (5) of the Ingonyama Trust Act provides:
‘’
Any
land in a township or any real right in such land shall vest in the
local authority having jurisdiction over such township
–
(a)
if
the township exists as such on the date of commencement of the
amendment Act, 1997 on such date of commencement, and
(b)
if the township is established and
approved or proclaimed as such after the date
of commencement of the
amendment Act 1997, upon such establishment
and approval or proclamation.’’
[10] In
paragraph 25 of their answering affidavit, the respondents themselves
concede that the land originally
belonged to Mpungose Traditional
Authority and was given over to the Municipality by Inkosi
Mbhasobheni Mpungose in 1968.
It is clear that the Municipality
has a real right in the land in question. The Inkosi and her
Traditional Council have no
legal interest which may be prejudicially
affected if they are not joined in these proceedings.
Therefore, there can
be no question of non – joinder
under those circumstances.
[11]
The Ingonyama Trust Board as the seventh respondent also filed its
answering affidavit. The Board
raised the issue of
applicability of the Spatial Planning and the Land Use Management
Act
[5]
(‘’SPLUMA’’)
to the areas which are under Traditional Authorities. The Board
also contends that the
proceedings under the National Building
Standards Act, On which the Municipality relies in these proceedings,
must be brought in
the Magistrate Court. SPLUMA is National
Legislation.
[6]
It
came into operation on 01 July 2015. In the year 2000, the whole of
South Africa was demarcated into wall-to-wall
municipalities.
Consequently, the entire land in South Africa was included in a
certain municipality. Municipalities were
then required to
extend their planning and land use management beyond the traditional
township boundaries. SPLUMA applies
to all land in South Africa
including tribal land although it is not strictly enforced in tribal
areas.
[12]
Section 2 (1) of SPLUMA provides:
‘’
2
(1) This Act applies to the entire area of the Republic and is
legislation enacted in terms of -
(a)
section 155 (7) of the
Constitution insofar as it regulates municipal planning; and
(b)
Section 44 (2) of the Constitution
insofar as it regulates provincial planning.
(2) Except as
provided for in this Act, no legislation not repealed by this Act may
prescribe an alternative or paralled mechanism
measure, institution
or system on spatial planning, land use land use, land use management
and land development in a manner inconsistent
with the provisions of
this Act’’
it is clear that SPLUMA
applies even to tribal areas. In any event, the land in
question is now under the management of Ulundi
municipality, so
either way, SPLUMA applies to that land. The Municipality
therefore, has a clear right to apply for the
relief it seeks.
[13]
Section 32 of SPLUMA gives the Municipality a right to enforce
compliance with its land use scheme.
It provides:
‘’
32
(1) -----------
(2)
A Municipality may apply to a court for an order ---
(a)
interdicting any person from using
land in contravention of its land use scheme;
(b)
authorising the demolition of any
structure erected on land in contravention of its land use scheme
without any obligation on the
municipality or the person carrying out
the demolition to pay compensation; or
(c)
directing any other appropriate
preventative or remedial measure’’
I
conclude therefore, that the municipality is within its right to
apply for interdict in the circumstances of this case
Is
There Any Other Effective Alternative Remedy?
[14]
The Board contends
that
the municipality should have approached the magistrate court in terms
of the National Building Regulations and Building Standards
act
[7]
(‘’the National Building Standards Act’’).
That act makes it an offence to put up any building in
respect of
which plans and specifications are to be drawn and submitted without
prior written approval of the Local Authority
[8]
.
Section 21 of the said Act confers jurisdiction on the
magistrate, on application by the local authority or the Minister
to
prohibit commencement or proceeding with erection of a building
contrary to the provisions that Act. In my view, section
21
does not oust the jurisdiction of the High Court which has inherent
jurisdiction to grant interdicts, unlike a magistrate court,
a
creature of statute whose powers are confined to the statute creating
it. In any event, because of the draconian nature
of the powers
vested in a magistrate to order demolition of the building, section
21 only ensures judicial oversight which does
not oust the
jurisdiction of the High Court. In my view, there is no any
other effective remedy available to the Municipality.
The
Municipality has therefore satisfied all the requirements of a final
interdict.
Application
For Condonation For The Late Filing Of Heads Of Argument.
[15]
The Ingonyama trust Board, filed an application for condonation for
the late filing of both the practice
note and Heads of Argument.
The application was not opposed. The reason for the lateness,
according to the founding affidavit,
is that the parties were
attempting a settlement which was unsuccessful. I have no
reason not to accept that explanation.
Costs
[16]
The first, second, third and fifth respondents opposed this
application and filed their answering affidavit.
The Ingonyama
Trust Board, despite the fact that no relief was sought against it,
also opposed the application and filed the answering
affidavit.
Therefore, all respondents who opposed the application, are liable to
pay the costs incurred by the municipality.
Order
[17]
In the result, I make the following order:
1
The
application for condonation of late filing of the practice note and
Heads of Argument is granted.
2.
The first to the fifth respondents and any
person acting through the first to the fifth respondents are
interdicted and prevented
from allocating land to individuals in the
areas marked with X in annexure ‘’C’’ (‘’the
property).
to the Notice of Motion
3.
The first to the fifth respondents are
interdicted and prevented from authorizing persons to build on the
property without the approval
of the applicant.
4.
The
sixth respondents ‘’(the respondents’’) and
any person acting through the persons falling under the
sixth
respondents and all other persons (‘’the respondents’’)
who are constructing structures and those
preparing to put up
structures on the property in the areas identified in the photographs
attached to the founding affidavit marked
‘’HI’’
to ‘’H8’’ are directed to dismantle and
remove the structures and all the
building material on the property
within five days of this Order, save for completed structures.
5.
The respondents are hereby interdicted from
continuing with the building of structures on the property.
6.
Should the respondents fail to dismantle the
structures within three months of this order the applicant is granted
permission to
dismantle and demolish the structures and remove any
building material shown in the photographs marked ‘’H1’’
to ‘’H8’’, to the founding affidavit.
7.
The first to the sixth respondents are
interdicted and prevented from encouraging, inciting or purporting to
give permission to
others to occupy or erect structures on the
property without the prior permission of the applicant.
8.
The respondents and all other persons are
interdicted from carrying out any further construction work,
including but not limited
to levelling the land, building blocks,
bringing building material to the property and from erecting any
structure on the property.
9.
The respondents are interdicted and restrained
from:
a.
entering upon or remaining upon the property;
for the purpose of putting up unauthorised buildings or structures
b.
encouraging other people to enter upon or
settle on the property for purpose of putting up unauthorised
buildings or structures.
10.
The applicant is directed to publish the contents of this order in
the local newspaper, the local radio station
and by
putting it up in the notice boards of the Municipal building.
11
The first to the third and the fifth and the seventh respondents are
jointly and severally, the one paying the other to
be absolved, are
directed to pay the costs of the application on the scale ‘’C’’.
NCUBE
MT
Judge
Land
Court
APPEARANCES:
For
the Applicant:
Adv.
WS Kuboni SC
Instructed
by:
Zuma
and Partners incorporated
Morningside
DURBAN
For
the 7
th
Respondent:
Adv.
DP Crampton
Instructed
by:
Ngcamu
Attorneys Incorporated
229
Hoosen Hafejee Street
PIETERMARITZBURG
[1]
Absa Bank Ltd v Naude NO and Others
2016 (6) SA 540
(SCA) Para 10
[2]
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA) Para 9
[3]
Act
209 of 1993
[4]
Act 3KZ of 1994
[5]
Act 16 of 2013
[6]
Published in Government Gazette No 36730 of date 05 August 2013
[7]
Act 103of 1977
[8]
See section 19 (2)