SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-008529
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
DATE: 03 September 2025
SIGNATURE
In the matter between:
TIMANI CC Applicant
and
EMAKHAZENI LOCAL MUNICIPALITY 1ST Respondent
THE MUNICIPAL MANAGER: EMAKHAZENI
LOCAL MUNICIPALITY
2ND Respondent
THE MAYOR: EMAKHAZENI LOCAL MUNICIPALITY 3RD Respondent
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HUMAN SETTLEMENTS, MPUMALANGA 4TH Respondent
JUDGMENT
COWEN J
Introduction
1. The applicant, Timani CC, has approached this Court for relief under this
Court’s civil contempt jurisdiction. The order allegedly breached is an order this
Court granted on 12 December 2023 1 (the December 2023 order) regulating the
relocation and eviction of persons residing on three properties the applicant owns
(the properties).2 The properties are situated within the area of jurisdiction of the first
respondent, eMakhazeni Local Municipality (the Municipality).
2. The December 2023 order was granted by agreement between Timani CC,
the Municipality,3 the Mayor of the Municipality (the Mayor), the Municipal Manager
of the Municipality (the Municipal Manager) and the MEC for Human Settlements,
Mpumalanga (the MEC). In these proceedings, the M unicipal Manager, the M ayor
and the MEC are the second, third and fourth respondents, respectively.4
3. The December 2023 order regulates the relocation and eviction from the
properties of persons (to whom I refer as the occupiers)5 whose eviction was ordered
1 Under case numbers 13432/2015 and 69085/2013 . The terms of the order, which is lengthy, are
dealt with below.
2 The properties are described in the order and are Portions 4 and 20 (a Portion of Portion 4) of the
Farm Schoonspruit 340 and Portion 3 of the Farm Kindergoed 322.
3 The Municipality was the first respondent under case numbers 13432/2015 and 69085/2013.
4 Under case numbers 13432/2015 and 69085/2013, the Municipal Manager was the seventh
respondent, the Mayor, the eighth respondent and the MEC , the fifth respondent. To avoid confusion
due to their different citations in different proceedings, I refer to th em in this judgment simply as the
Municipality, Mayor and Municipal Manager.
5 The occupiers are described in the order as the first to twenty -fourth respondents under case
number 69085/2013 excluding certain persons in respect of whom the November 2014 e viction order
was rescinded namely Ms Betty Maphosa, Mr S Mthombothi, Mr Langman Mkhatshwa, Mr Samson
Madonsela, Ms Julia Mgomezulu and Ms Maria Mncube.
by this Court on 14 November 2014 (the November 2014 eviction order). The
November 2014 eviction order is to be read with other orders granted by this Court
including one on 21 April 2015 (the April 2015 order) granted at the request of the
occupiers. The April 2015 order directed the Municipality, the MEC and other State
functionaries6 to take steps required to provide alternative land to the occupiers for
their provisional resettlement and to assist them and their households to resettle .
Alternative land was ultimately provided by the MEC, being Portion 61 of the Farm
Geluk 348 JT (the alternative land).
4. The December 2023 order was granted in circumstances where the occupiers
were, on more than one occasion, notified that Timani CC was seeking to enforce
the November 2014 eviction order and the MEC had undertaken to assist the m to
resettle on the alternative land as contemplated by the April 2015 order. It was
ultimately ordered that the dates on which the MEC would assist with voluntary
resettlement were 11 December to 14 December 2023 and 8 January to 10 January
2024 until completed. The assistance that would be provided was that their dwellings
would be dismantled, loaded onto trucks and offloaded to the alternative land and
occupying family members and their belongings would also be transported there.
Should any occupier fail to relocate in this way, they were required immediately to
vacate the properties failing which the November 2014 eviction order would be
executed by the Sheriff from 17 January 2024 until completed. In executing the 2014
eviction order, the occupiers were to be relocated to the alternative land with the
assistance of the fifth respondent and provision was made for how the eviction would
ensue if they refused to do so.
5. The December 2023 order was not complied with. In the result, Timani CC
instituted contempt proceedings against the Municipality, the Mayor, the Municipal
instituted contempt proceedings against the Municipality, the Mayor, the Municipal
Manager and the MEC . Notably, this is the second occasion on which Timani CC
has instituted contempt proceedings, as appears below.
6 Specifically, the Minister of Rural Development and Land Reform, the DG of the Department of Rural
Development and Land Reform, the Head of the Mpumalanga Provincial Office of the Department of
Rural Development and Land Reform and the MEC for Agriculture, Rural Development and Land
Administration, Mpumalanga.
6. The contempt application is opposed by the Municipality, its Municipal
Manager and its Mayor. The MEC abides the Court’s decision.
7. The matt er came before me as a special motion on 30 April 2025. Shortly
before the hearing, however, the attorneys for the Munici pality, the Mayor and the
Municipal Manager, Mmakola Matsimela Inc, filed a notice of withdrawal as attorneys
of record ‘owing to lack of financial instructions’. At the commencement of the
hearing, Mr Potgieter SC, who appeared for the applicant, informed the Court that
his attorney had learnt only the day before that there would be no appearance for
these parties and was supplied with a telephone number for the Municipality’s legal
officer, a Mr Mkhonto. Mr Potgieter then confirmed that his client is not seeking any
substantive relief against the MEC, who is abiding the decision and only seeks costs.
I deal with co sts below. In the absence of any appearance and any postponement
request, Mr Potgieter proposed that he proceed to argue the matter. However, in
circumstances where the Court was not sufficiently apprised of the circumstances of
the attorneys’ withdrawal and sanctions of a criminal nat ure are sought in the
contempt proceedings, I considered it prudent to afford the Mayor, Municipality and
Municipal Manager an opportunity to explain their position.
8. To that end, the Court sought to contact their erstwhile attorneys in respect of
the last-minute withdrawal. The responsible attorney, Mr Matsimele was not
available. The Court also sought to contact Mr Mkhonto, the Municipality’s legal
advisor, using the telephone number that Mr Matsimele had – the Court was told –
given the applicant’s attorney. That number did not exist. In circumstances where the
Municipality, Mayor and Municipal Manager are based in Polokwane, have
participated actively in the proceedings to date while being represented and where
the legal issues raised, in my view, warranted debate in oral argument, I concluded
the legal issues raised, in my view, warranted debate in oral argument, I concluded
that the interests of justice demanded that the matter be postponed for a brief period
to afford them an opportunity to obtain new legal representation or to settle their
financial matters with their erstwhile attorneys of record. The matter was accordingly
postponed until 19 May 2025 by arrangement with the office of the Deputy Judge
President.7
7 The postponement order was in the following terms:
9. On 19 May 2025, representatives from Mmakola Matsimela Inc appeared and
explained the circumstances of their withdrawal. No affidavit was filed in accordance
with paragraph 2.1 of the order of 30 April 2025 .8 Moreover, on the strength of what
the Court was informed, there is no basis for any costs order de bonis propriis. The
Court was inter alia informed that Mmakola Matsimela Inc had cautioned their clients
to appear in Court. They were thereafter excused. Mr Potgieter SC then proceeded
to argue the merits of the contempt application.
Litigation history
10. As intimated above, t his matter has a protracted litigation history, which
requires some recounting.
11. The matter first came before the Court in early 2014 when this Court, per
Jansen J granted an eviction order by default . The eviction application was
apparently pursued in terms of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (the PIE Act). In that application, Timani CC
explained that it had become the owner of the properties in lat e 2012 by acquiring
the legal entity that owned them from a deceased estate. It was alleged in that
application that some of the respondents had unlawfully invaded the property during
the course of the winding up of the deceased estate. Although the execu tor
approached the South African Police Service (SAPS) on numerous occasions to
‘1 The contempt application (in case number: 2024 -008529) is postponed until the 19 th May 2025 for
purposes of enabling the first to thir d respondents to obtain new legal representation should they wish
to, or to settle any financial dispute with their previous attorneys of record to enable them to appear.
2. On 19 May 2025, the first to third respondents must show cause why the wasted costs occasioned
by the postponement should not be paid to the Applicant on an attorney and client scale as follows:
2.1 By the First to Third Respondents, jointly and severally, subject only to the First to Third
Respondents satisfying the Court by means of an affidavit to be filed in Court and served upon the
Applicant and the First to Third Respondents’ attorneys of record on or before 9 May 2025, that the
said costs must be born de bonis propriis by the First to Third Respondents attorney of record,
Mmakola Matsimela Incorporated.
2.2 In the event of the First to Third Respondent satisfying the Court that the First to Third
Respondents’ aforesaid attorneys of record are liable to pay, the said wasted costs are payable by the
attorneys, Mmakola Matsimela Incorporated.
3. The First to Third Respondents’ attorneys of record, Mmakola Matsimela Incor porated, are entitled
to file an answering affidavit to the First to Third Respondents’ affidavit, if any, and to appear on 19
May 2025 to contest any request for the granting of the said de bon is propris costs order against
them.’
8 Id.
assist to stop the invasions, the police had not assisted. During engagements with
the Municipality, Timani CC had, moreover, ascertained that amongst the occupiers
were undocumented immigrants. Further, Timani CC alleged that unlawful invasion
of the property continued following engagements with the Municipality in late 2013.
It was not possible for Timani CC to establish the identities of all occupiers at the
time they instit uted the eviction proceedings. Attempts by Timani CC to visit the
property were allegedly met with aggression, and Timani CC considered it
dangerous to visit that part of the property.
12. The occupiers (then identified as sixty-seven households), thereafter instituted
a rescission application. The occupiers also sought and obtained an order
suspending the execution of the eviction order pending the finalisation of the
rescission application.9 In the rescission application, the occupiers pleaded inter alia
that the eviction application should not have been instituted in terms of the PIE Act
and was erroneously characterised as a case of land invasion. They pleaded that the
Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Land Reform
(Labour Tenants) Act 3 of 1996 (the LTA) were applicable and that proceedings
ought to have been instituted in the then Land Claims Court. In this regard, they
pleaded that many of them had been born on the properties, which were rural
properties, and they pleaded that they and their families were labour tenants
protected by the LTA . They also took issue with the manner of citation of the
respondents and a failure to comply even with the PIE Act.
13. The order of Jansen J was rescinded by a consent order of t his Court dated
29 August 2014 and leave was granted to the occupiers to deliver answering
affidavits within a set time period. However, they did not do so.
14. The matter then came before Judge Rossouw AJ on 14 November 2014,
14. The matter then came before Judge Rossouw AJ on 14 November 2014,
when this Court granted the November 2014 eviction order on an unopposed basis .
The Municipality was a party to those proceedings and did not oppose them. 10 The
November 2014 eviction order was in the following terms, the 1st to 24th respondents
being the cited occupiers:
9 The suspension order was granted by Judge Bam on 16 May 2014.
10 The Municipality was the 25th respondent in those proceedings.
1. The 1st to 24th respondents are evicted from [the properties].
2. The 1st to 24th respondents, and all persons and entities that occupy
the properties by, through or under them, are ordered to vacate the properties
referred to in prayer 1 above on or before 15 December 2014.
3. In the event that the 1st to 24th respondents do not vacate the property
by the date in paragraph 2 above, the Sheriff of this Court or his lawfully
appointed deputy or sub -contractor is authorised and directed to evict the
respondents from the property.
4. The names of any of the 22nd to 24th respondents11 established by the
Sheriff or his lawfully appointed deputy, pursuant to the service of this
application as contemplated in Part A hereof, be incorporated herein as the
27th (and further respondents).
5. Pursuant to the 1 st to 24 th respondents (and 27 th and further
respondents) having vacated the properties, or having been evicted
therefrom, pursuant to the order contemplated in prayer 1 and 2 above, the
Sheriff of this Court or his lawfully appointed deputy or sub -contractor is
authorised and directed to dem olish any structures on the properties formally
occupied by the 1st to 24th respondents (and 27th and further respondents) and
to retain the building materials of the demolished structures for a period of one
month after the demolishing.
6. The Sheriff of this Court or his lawfully appointed deputy or sub -
contractor is directed to inform the 1 st to 24 th respondents (and 27 th and
further respondents) where the building materials are retained as described in
prayer 5 above.
7. The 1 st to 24 th respondents (and 27 th and further respondents) are
interdicted and restrained from being present at the properties, a nd from
taking any steps to reoccupy the properties pursuant to their eviction.
8. In the event that any of the 1st to 24th respondents (and 27th and further
respondents) endeavour/s to regain possession of properties pursuant to the
respondents) endeavour/s to regain possession of properties pursuant to the
demolition of any structures, the Sheriff of this Court is authorised and
directed to remove such person from the property. For these purposes, the
11 Which are cited as further unlawful occupiers on the three properties respectively.
Sheriff or his lawfully appointed deputy or sub -contractor is authorised to
engage the services of the South African Police Service should it be
necessary.
9. The 1st to 24th respondents (and 27 th and further respondents) are to
pay the costs of this application, including the costs of Part A of the notic e of
motion, jointly and severally, on the scale as between attorney and client.
15. There was a further rescission application , which Timani CC opposed in a
lengthy answering affidavit . In the answering affidavit, Timani CC noted that as at
December 2014, there were, in addition to the original 68 structures, an additional 15
completed structures. It referred to a new occupier who had just that month started
ploughing fields. Timani CC p ersisted with its stance that the matter was correctly
brought in the High Court referring to its knowledge of the occupiers. It persisted with
its stance that the occupation was substantially a n aggressive land invasion and put
up facts to dispute the cla ims of labour tenancy under the LTA. It also disputed the
application of ESTA . Timani CC again asserted that amongst the occupiers are
undocumented immigrants. It pleaded inter alia that there was con sent to the High
Court’s jurisdiction.
16. On 30 January 2015, Judge Tuchten granted an order by agreement . In
material parts that order was in the following terms:12
‘1. The eviction order dated 14 November 2014 is rescinded in respect of the
following occupiers only:
1.1 Betty Maphosa (first respondent)
1.2 Mr S Mthombothi (13th respondent)
1.3 Mr Langman Mkhatshwa (not cited by name)
1.4 Mr Samson Madonsela (not cited by name)
1.5 Ms Julia Mgomezulu (not cited by name)
1.6 Ms Maria Mncube (not cited by name).
12 This was in respect of a parallel and related application instituted by Timani CC under Rule 49(11).
2. [Timani CC] undertakes to keep execution steps in respect of the eviction
order dated 14 November 2014 in abeyance subject to the following
conditions:
2.1 The [occupiers] shall b ring an urgent application against [the Municipality]
and the Minister of Rural Development and Land Reform within 15 days of the
date of this order in which application they shall seek an order that alternative
accommodation be provided in terms of the relevant provisions of the Housing
Code.
2.2 The [occupiers] shall prosecute such application with the necessary
diligence.
3. The parties to this agreement shall take all the necessary steps to ensure
that the case, insofar as it relates to the rescinded part of the order, be
transferred to the Land Claims Court.
4. …’
17. The occupiers (then self-described as sixty-three heads of households)13 duly
instituted an application for alternative accommodation. The application was
instituted against the Municipality and the Minister of Rural Development and Land
Reform. In that application, the occupiers pleaded that the manner and timing of the
occupation of the properties is disputed but that it was common cause that there is
evidence of a well settled community. They pleaded their entitlement to alternative
accommodation given their imminent homelessness in view of the eviction order and
recorded that the parties have agreed to settl e all appeals and interlocutories to
resolve the matter expeditiously.
18. This culminated in th is Court granting the April 2015 order. The April 2015
order was in the following terms against six respondents, being the Municipality, the
Minister of Rural De velopment and Land Reform, the DG of the Department, the
Head of the Mpumalanga Provincial Office of the Department, the MEC and the MEC
for Agriculture, Rural Development and Land Administration, Mpumalanga:
1. The [above-mentioned respondents] are ordered:
13 Each of whom was listed in an Annexure.
1.1 to take all steps required to provide alternative land to the
[occupiers] and their households for their provisional resettlement;
1.2 to assist the [occupiers] and their households to resettle from
their present occupation of [the properties];
2. The [Municipality] is ordered to file a report on the implementation and /
or planned implementation of this order within twenty days after service of this
order on the municipal manager of [the Municipality], such report to be served
on the respective attorneys of the [occupiers] and [Timani CC] at the address
of their legal representatives.
19. The April 2015 order was not complied with. In an application instituted by the
occupiers, on 5 November 20 15, Msimeki J granted a consent order14 (the
November 2015 order) in the following terms (in relevant part):
‘1. The [Municipality] undertakes, in compliance with the court order of 21
April 2015, to resettle [the occupiers] before the end of February 2016 to
portion 38 of the Farm Geluk 348 JT or such other land as the parties may
agree on or before such date (the new site);
2. The [Municipality] undertakes to take all necessary steps to ensure that
any legal obstacles to such relocation to the new site are removed before end
of February 2016, more particularly, the [Municipality] shall;
2.1 Terminate any lease agreements in respect of the land.
2.2 Consult with all relevant stakeholders in the town of Machadodorp
or any other relevant community.
2.3 Immediately give notice of this order as well as the order of 21 April
2015 to the affected residents of Machadodorp by placing same on the
municipal notice board at Machadodorp.
2.4 Immediately apply for the necessary emergency funding from the
[MEC] and the [MEC, Agriculture, Rural Development and Land
Administration, Mpumalanga] in terms of the Housing Code for the
resettlement provided for herein. Suc h application shall include
application for funding of the necessary transport, assistance to
application for funding of the necessary transport, assistance to
14 The order was granted by consent between the occupiers, the Municipality and Timani CC.
relocate and rudimentary materials to re -establish the informal
dwellings of the [occupiers] on the new site.
2.5 Endeavour, in terms of its inter-governmental co -operation
obligations, to ensure that the [MEC] and the [MEC, Agriculture, Rural
Development and Land Administration, Mpumalanga] facilitate the
relocation and settlement of the [occupiers] as provided for herein.
3. The [Municipality] shall file reports on or before 14 December 2015 and
again on 14 February 2016 in which [the Municipality] must set out in detail
what steps have been taken, and which remain to be taken to give effect to
this order and the order of 21 April 2015.
4. The [Municipality] shall give the [occupiers] two weeks’ notice of any
intended relocation. The parties shall co -operate in good faith to ensure that
the relocation is implemented as best as circumstances permit.
5. The parties record that no occupier may be forced to relocate. Occupiers
that do not wish to be relocated to the new site, shall be given two weeks after
such relocation to relocate elsewhere at their own costs, after which such
occupiers shall be liable to be evicted in terms of the court ord er of 14
November 2014, subject to the exclusions of paragraph 1 of the order of 30
January 2015.
6. In the event that the relocation does not take place prior to the end of
February 2016, or the [Municipality] fails to comply with any of its obligations
in this order, the Applicants shall be entitled to set the matter down,
supplemented by further affidavits if necessary, for further appropriate relief.’
20. Further litigation ensued but ultimately , in 2017, Timani CC institute d
contempt of court proceedings in respect of the April 2015 order and the order of
Msimeki J. They sought the imposition of a fine suspended pending compliance w ith
those orders. Importantly, they also sought an order that should the orders not be
complied with, the Sheriff be authorised to assist Timani CC to evict the occupiers at
complied with, the Sheriff be authorised to assist Timani CC to evict the occupiers at
the costs and expense of the State respondents. 15 The Mayor and the Municipal
Manager were subsequently joined to those proceedings. The contempt application
15 The State respondents included the Municipality, the Minister of Rural Development of Land
Reform, the DG of the Department of Rural Development and Land Reform, the Head of the
Mpumalanga Department of Rural Development and Land Reform, the MEC, the MEC, Agriculture
Rural Development and Land Administration, Mpumalanga, the Municipal Manager and the Mayor.
was referred to case management initially in October 2018 , before Mabuse J,
Ledwaba DJP and , finally, before me. The case management process – which
ensued over a five-year period – was centrally directed at pragmatically ensuring the
relocation and eviction of the occupiers from the properties in accordance with the
orders of this Court and the law.
21. Through this process, the Municipality, the Mayor and Municipal Manager ,
and the MEC raised challenges. However, all these parties indicated an intention to
comply with the order s and secure their enforcement . This ultimately culminated in
the grant of the December 2023 order. That order, however, was preceded by prior
orders aimed at ensuring , amongst other things, that provision was made to allo w
the challenges raised to be overcome and to ensure that the occupiers were aware –
after the lapse of time – of the attempts to secure compliance with the orders and of
remedies should they wish to take issue with the implementation process. Moreover,
new time-frames were set and extended for the relocation and eviction of the
occupiers.
22. On 17 November 2022, this Court granted an order by agreement between
Timani CC, the Municipality, the Mayor and the Municipal Manager (the said
respondents) in the following terms , with order no 5 granted by agreement of the
MEC:
1. The Municipality, the Mayor and the Municipal Manager must ensure
the removal of the [occupiers] who are referred to in the eviction order dated
14 November 2014 … from [the properties ] and must commence with the
taking of all such steps as are necessary to achieve same within five days of
date of this order.
2. It is determined that the only steps required to be taken by the said
respondents to ensure the removal of the [occupiers] by 31 March 2023 are
the following:
2.1 an application to [the MEC] for financing in respect of only the
physical removal and relocation of the [occupiers] (and not the
physical removal and relocation of the [occupiers] (and not the
purchasing of alternative pr operty, such alternative property already
being available viz [the alternative land];
2.2 an application to National Treasury for approval of a deviation
from normal procurement policy in respect of the appointing of
contractors to remove and relocate the [occupiers];
2.3 the appointment of appropriate contractors to take the
necessary steps to implement the removal and relocation of the illegal
occupiers.
3. The said respondents must appoint a Task Team consisting of no more
than three members whose task shall be th e ensuring of the achievement of
the aforementioned eviction date of the [occupiers] from [the properties],
which task Team must be appointed within four days from the date of this
order and which Task Team’s members’ names and contact particulars (e -
mail addresses and telephone numbers), must be provided to the [Timani
CC]’s attorney of record as soon as the Task Team has been appointed.
4. The said respondents must ensure (albeit by means of the said ‘Task
Team’, that the following steps are taken within 5 (five) days from the date of
this Court order;
4.1 an application must be made to the [MEC] for financing
necessary to remove and relocate the [occupiers] from [ the properties]
to [the alternative land];
4.2 Proof that such an application has been made m ust be provided
to [Timani CC’s] attorneys of record simultaneously with the furnishing
of the said application to the MEC;
4.3 An application must be prepared for submission to National
Treasury for an approval of deviation by the Said Respondents from
normal procurement policy in order to ensure the appointment of
contractors to undertake the necessary steps to remove and relocate
the [occupiers] from [the properties ] to the said Portion and proof of
such an application to National Treasury must be provided to [Timani
CC’s] attorneys of record as soon as the said application is made to
National Treasury.
4.4 A copy of this order must be provided to National Treasury.
5. The [MEC] will, within 14 (fourteen) days from receipt of the application
5. The [MEC] will, within 14 (fourteen) days from receipt of the application
for financing, provide the Said Respondents, (albeit by virtue of the said Task
Team), with an answer to the said Respondents’ request for financing
necessary to relocate the [occupiers] from the Applicant’s property to [the
alternative land].
6. If it transpires that the [Mun icipality, Mayor and Municipal Manager] will
not be able to achieve the eviction date of the [occupiers], viz 31 March 2023,
the Said Respondents:
6.1 must immediately upon becoming aware of same, apply by
means of an affidavit, to Court for an extension of t he said eviction
date, which application must be fully motivated with the reasons why
the said eviction date cannot be achieved and with a proposed new
eviction date together with reasons as to why the said new eviction
date is alleged to be appropriate.
6.2 The aforementioned application for an extension of the eviction
date need not be launched in the normal course and her Ladyship may
be approached to deal with same and if her Ladyship is not available
the Deputy Judge President may be approached for the al location of
another Judge.
7. Should the Said Respondents not take the necessary steps set out in
paragraph 4 supra and / or not provide [Timani CC’s] attorneys of record with
the necessary documentary proof that such steps had been taken as and
when same are taken, [Timani CC] shall be entitled to re -enrol the contempt
application duly supplemented at which time the contempt application which is
herewith postponed sine die in accordance with paragraph 8 infra pending
compliance with the steps and eviction orders contained supra may also be
adjudicated.
8. The contempt application is postponed sine die (inclusive of the
[Municipality, Municipal Manager and MEC ’s] conduct to date hereof) and
should it become necessary to re -enrol same such precedent conduct
together with any subsequent conduct after the granting of this order shall
form the subject matter of the contempt application.
9. The costs of the contempt application against all the Respondents
thereto are reserved.’
23. As matters transpired, on 20 June 2023 it was necessary to grant a further
23. As matters transpired, on 20 June 2023 it was necessary to grant a further
order, which I did after hearing the legal representatives for Timani CC, the
Municipality, the Mayor, the Municipal Manager and the MEC . I did so in
circumstances where these respondents had indicated their revised intended
process to comply with the orders:16
‘1. The [MEC ] must provide the [Municipality, the Mayor and the Municipal
Manager] with a decision by no later than 30 June 2023 pertaining to their
application for funding in order to enable the [Municipality, the Mayor and the
Municipal Manager] to evict the illegal occupiers from [Timani CC’s] property
and relocate same, which application by the [Municipality, the Mayor and
Municipal Manager] is accepted by the [MEC Human Settlements
Mpumalanga] as fully compliant.
2. The [Municipality, Mayor and Municipal Manager] must do the
following:
2.1 Immediately commence preparing an application to National
Treasury for approval of an expedited procurement process pertaining
to the appointment of the necessary contractors / service providers
needed to remove the illegal occupiers from [Timani CC’s] property and
to re-house them in temporary accommodation on alternative property.
2.2 Submit the aforementioned application to National Treasury by no
later than 4 July 2023.
2.3 Evict the illegal occupants on the Applicant’s property by no later
than 31 August 2023, subject only thereto that the necessary funding to
enable the [Municipality, Mayor and Municipal Manager] to undertake
the said eviction and relocation is timeously pr ovided by the [MEC] to
the [Municipality, Mayor and Municipal Manager].
3. The present application is postponed to 7 August 2023 at 13h15 for a
virtual case management appearance before Her Ladyship to ensure that the
deadline for eviction is achievable and the costs are reserved.
4. The contempt application is postponed sine die and the costs thereof are
reserved.’
16 Under Case no 13432/2015 and 69085/2013
24. On 7 August 2023, I granted the following order after hearing the legal
representative of the aforesaid respondents.
‘1. Paragraph 2.3 of the order dated 20 June 2023 (signed on 5 July 2023)
remains operative as far as the eviction date of the illegal occupiers from
[Timani CC’s] property is concerned viz 31 August 2023 but the qualification
to the last-mentioned eviction date viz that the necessary funding to undertake
the eviction be obtained, is no longer applicable in the light of the indication by
the [MEC] that [ the MEC ] will undertake the eviction, [the MEC] will use its
Panel – Service Providers and foresees no difficulty in achieving the eviction
date of 31 August 2023.
2. This case management is postponed to 13h00 on 28 August 2023 to
ascertain whether or not the aforementioned eviction date of 31 August 2023
is still attainable and, if not, f or the issuing of directives to achieve the eviction
at the earliest possible date.
3. The parties will file and update a document, similar to a practice note, on or
before 13h00 on 28 August 2023 and ensure that same is uploaded onto
Caselines.
4. It will be determined at the case management meeting on 28 August 2023
when and how the question of the costs of the contempt application and the
case management meetings will be dealt with.
5. Paragraph 3 of the order dated 20 June 2023 stands in amended form viz
the postponement date is 28 August 2023 at 13h00.
6. Paragraph 4 of the order dated 20 June 2023 viz that the contempt
application is postponed sine die and the costs thereof are reserved, stands.’
25. On 12 October 2023, I granted an order by agreement between Timani CC,
the Municipality, the Mayor , the Municipal Manager and the MEC in the following
terms:
1. In this order:
1.1 ‘the November eviction order’ means the eviction order granted by this
Court on 14 November 2014 against the first to twenty -fourth respondents
under case number 69085/2013 of which a true copy is attached as Annexure
‘X’ hereto.
1.2 ‘unlawful occupiers’ refers to the first to twenty-fourth respondents cited in
Annexure X but excludes the following persons in respect of whom the
eviction order was rescinded nam ely Betty Maphose, Mr S Mthombothi, Mr
Langman Mkhatshwa. Mr Samson Madonsela, MS Julia Mgomezulu and Ms
Maria Mncube.
1.3 ‘the applicant’s properties’ means the properties of the applicant (ie
Timani CC) on which the unlawful occupiers current ly reside being Portions 4
and 20, (a Portion of Portion 4), of the Farm Schoonspruit 340 and Portion 3
of the Farm Kinder goed 322, situated within the areas of jurisdiction of the
[Municipality].
1.4 ‘the April 2015 order’ means the order granted by this Court on 21 April
2015 under case number 13432/2015 at the request of the aforesaid unlawful
occupiers, that the First to Sixth Respondents had to take all steps required to
provide alternative land to the unlawful occupiers for their provisional
resettlement and to assist the illegal occupiers and their households to
resettle from their present occupation, a true copy of which Court order is
attached as Annexure “Y” hereto.
1.5 ‘the alternative land’ means Portion 61 of the Farm Geluk 348 JT depic ted
on the map annexed as Annexure ‘Z” hereto.
2. The [Municipality, Mayor and Municipal Manager ] are ordered on or
before Saturday 14 October 2023 to take such steps as are necessary to
inform the unlawful occupiers:
2.1 That the alternative land has been provided by the [MEC] to the
Municipality for the provisional resettlement of the unlawful occupiers on the
applicant’s land.
2.2 That the [MEC] has under taken to assist the unlawful occupiers on
[Timani CC’s] land and their households to resettle from their present
occupation to the alternative land for their provisional resettlement as
contemplated by the April 2015 order.
2.3 The dates on which the [MEC] intend to assist with the resettlement are
2.3 The dates on which the [MEC] intend to assist with the resettlement are
from the 13 th of November 2023 to 16 th November 2023 or until completed.
The assistance that will be provided is that the dwellings / shacks will be
dismantled, loaded to trucks and off loaded to [the alternative land] and
occupying family members will also be transported.
2.4 In the event that any unlawful occupier fails to relocate as foresaid,
they are to immediate vacate [Timani CC’s] properties failing which it is
intended that the eviction order will be executed by the Sheriff as from the 20th
day of November 2023.
2.5 That on 6 November 2023, any unlawful occupier who objects to the
above process for implementation and execution of the eviction order and
April 2015 order must show cause why the above process for the
implementation and execution of the eviction order and April 2015 order
should not be authorised by the court.
3. Any unlawful occupier wishing to object to the above process must
deliver a notice of intention to do so and deliver any affidavit setting out the
basis of their objection on or before 28 October 2023 and the applicant or any
other respondent may reply thereto.
4. Any notice of intention to objection and any objection affidavit must be
delivered to [Timani CC’s] attorneys EYS Inc Pretoria by email to e[...].
5. The right to object is limited to the process of implementation and
execution of the eviction order and April 2015 order, such as in respect of time
frames.
6. In complying with this order the [Municipality, the Mayor and the
Municipality] are authorised to take any and all steps necessary to bring the
contents of this order and Annexures “X”, “Y” and “Z” hereto to the attention of
the unlawful occupiers bound thereto on the three aforementioned properties
inclusive of e.g. the use megaphones (sic) or other forms of loudspeakers and
leaving copies with the unlawful occupiers provided that such steps will
ensure that all households and persons present on the aforementioned three
properties of [Timani CC] are adequately informed.
7. The Municipality, Mayor and Mun icipal Manager are furthermore
7. The Municipality, Mayor and Mun icipal Manager are furthermore
ordered to file an affidavit with the Court and to upload same onto CaseLines
as soon as this order has been complied with but, in any event, no later than
20 October 2023.
8. Subject to the right of any person, including any u nlawful occupier to
request a hearing in open Court at the Pretoria High Court, the proceedings of
6 November 2023 will ensue by way of a virtual hearing using the following
link at 13h00 and costs are reserved. [Link supplied.]
9. Any request for a hearing in open Court, for assistance with the virtual
link or other queries in respect of the hearing must be directed to the Registrar
of the High Court of South Africa, Gauteng Division, Pretoria.
10. The contempt application is further postponed sine die and the costs
thereof are reserved.’
26. On 6 November 2023, there was no appearance for any occupier . Mr
Mkhonto, a Legal Manager at the Municipality, delivered an affidavit confirming that
there had been compliance with the order on its part . V arious occupiers, however,
had delivered brief affidavits objecting to their eviction for various reasons inc luding
that they were born on the properties and the properties have always been their
home, these are their only home s and they grow vegetables to sustain themselves .
Further issues were raised including status as a pensioner or employment status ,
proximity of work and that family are buried.
27. Following the hearing on 6 November 2023 and on 9 November 2023, I
granted a further order in similar terms to the order of 12 October 2023. In that
order, I extended the dates for resettlement . A further opportunity was given to the
occupiers to show cause why the process and timeline for implementation of the
orders should not be authorised. In the order, specific attentio n was drawn to the
possible impact on children, child and women headed households, persons with
disabilities and elderly persons. 17 It was also emphasised that ‘the Court is not
seized with a reconsideration of the eviction order and the April 2015 order a nd that
accordingly, the right to object is limited to the process and timeline of
accordingly, the right to object is limited to the process and timeline of
implementation and execution of these orders.’ 18 Furthermore, attention was drawn
to the ability to access the South African Legal Aid Board and the pro bono section of
the South African Legal Practice Council. A further link was provided for a hearing on
28 November 2023 with a right to request an in-person hearing.
17 Paragraph 2.5.
18 Paragraph 2.7.
28. On that day, the date for the hearing was again extended , until 12 December
2023, when the order in issue in this application was granted . Prayer 1 of the 12
December 2023 order is in the same terms as the October 2023 order and defines,
in turn, the November 2014 eviction order , the unlawful occupiers, the Applicants’
properties, the April 2015 order and the alternative land. It then reads, from prayer
2:
‘2. Noting that:
2.1 the unlawful occupiers have been notified of the order of 30 November
2023 and noting that the alternative land (Annexure Z) has been provided by
the [MEC] to the [Municipality] for the provisional resettlement of the unlawful
occupiers on the Applicants’ land.
2.2 The [MEC] has un dertaken to assist the unlawful occupiers on the
Applicant’s land and their households to resettle from their present occupation
to the alternative land for their provisional resettlement as contemplated by
the April 2015 order.
2.3 The dates on which th e [MEC] will assist with the voluntary resettlement
are from 11 December to 14 December 2023 and 8 January to 10 January
2024 until completed. The assistance that will be provided is that the
dwellings/ shacks will be dismantled, loaded onto trucks and of floaded to
Portion 61 of the Farm Geluk and occupying family members and their
belongings will also be transported to Portion 61.
3. In the event that any unlawful occupier fails to relocate on any of the
dates or in the manner as aforesaid, they are to immed iately vacate the
Applicant’s properties failing which the eviction order will be executed by the
Sheriff as from the 17 January 2024 until completed. In executing the eviction
order (Annexure X) the unlawful occupiers shall, with the assistance of the
[MEC] be relocated to the alternative land, and if they refuse to do so, the
eviction order shall be executed in accordance with paragraphs 5 to 9 of that
order.
4. The [Municipality, Mayor and Municipal Manager] shall, on or before 15
order.
4. The [Municipality, Mayor and Municipal Manager] shall, on or before 15
December 2023 serve a copy of this order on the Sheriff and thereafter
immediately commence engagement with the Sheriff and the [MEC] to ensure
that all necessary arrangements are timeously in place should it be necessary
to execute the eviction order. The [Mun icipality, Mayor and Municipal
Manager] shall inform the applicant of service on the Sheriff, as soon as it is
effected, and all arrangements.
5. Any unlawful occupier who has good cause to apply for any variation or
extension of time for the implementation of this order must do so on
reasonable notice and on affidavit and any respondent may reply thereto. In
the event that any unlawful occupier requires assistance to apply for a
variation or extension of time but cannot afford or obtain such assistance such
objector is entitled to approach any branch of, inter alia, the following entities
for assistance:
5.1 The South African Legal Aid Board.
5.2 The pro bono section of the South African Legal Practitioners Council.
6. Any application as aforesaid must be delivered t o the Applicant’s
attorneys EYS Attorneys Inc Pretoria by e -mail to e[...] who shall ensure that
same are uploaded to CaseLines and the abovementioned Judge and / or her
Registrar is informed of such uploading.
7. The [Municipality, Mayor and Municipal Manager] are directed without
delay, and by no later than 13 December 2023, to draw this order to the
attention of the unlawful occupiers and in doing they are authorised to e.g.
utilise the assistance of the So uth African Police Services, the holding of a
meeting, the use of megaphones or other forms of loudspeakers and leaving
copies with the unlawful occupiers provided that such steps will ensure that all
households and persons present on the aforementioned th ree p roperties of
the Applicant are adequately informed.
8. The [Municipality, Mayor and Municipal Manager ] are furthermore
ordered to file an affidavit with the Court and to upload same onto CaseLines
as soon as this order has been served in accordance with paragraph 4 and 7,
by no later than 18 December 2023.
9. The contempt application is further postponed sine die and the costs
9. The contempt application is further postponed sine die and the costs
thereof are reserved.’
29. On 12 January 2024, Timani CC’s attorneys wrote to the attorneys of the
Municipality, Municipal Manager and Mayor (Mmakaola Matsimela Inc ) and to the
attorneys of the MEC (Lubisi Attorneys). They enquired whether any occupier had
voluntarily resettled with the assistance of the MEC as envisaged by the order. They
recorded that according to the records of Timani CC, the Municipality, Mayor and
Municipal Manager had failed to file an affidavit to report on t heir obligations as set
out in paragraphs 4 and 7 of the order. They enquired whether arrangements are in
place for the eviction of the occupiers and that their enquiries with the Sheriff
suggested no requests had been made to the Sheriff. It was recorde d that if the
eviction does not occur as from 17 January 2024 a contempt application would be
launched. There was no response.
30. On 18 January 2024, Timani CC’s attorneys wrote again to the same
attorneys. They recorded that they had received no response to the previous letter.
They recorded that the occupier s had not been evicted in terms of the December
2023 order. They enquired as to the progress of the eviction or the intention of the
MEC and mentioned that the MEC was obliged to execute the eviction in co -
operation with the Mayor, the Municipality and the Municipal Manager. There was
no response.
31. In short, there was no compliance with the December 2023 order.
Key elements of the MEC’s response to the application and Timani CC’s reply.
32. On 5 March 2024, t he MEC delivered an answering affidavit deposed to by
Ms Hazel Zitha , Acting Head of the Mpumalanga Provincial Department of Human
Settlements (the Department) and its accounti ng officer. In her affidavit, Ms Zitha
contended that in its contempt application, Timani CC was seeking to place on the
MEC responsibilities to evict that reside with Timani CC itself as the party who
obtained an eviction order in its favour. Ms Zitha complained about the fact that
there had at that stage been three contempt applications. In the second one, which
led to the December 2023 order, no relief was sought against the MEC but the
led to the December 2023 order, no relief was sought against the MEC but the
Department had offered to assist them as far as needed. However, Ms Zitha insisted
that at no stage has the MEC been ordered to conduct an eviction . Their function,
she contends, is limited to assisting with voluntary relocation. The Department was
and remains ready to assist with these relocations. In providing its explanation, Ms
Zitha referred to the log ic of the order of Msimeki J which drew the distinction
contended for between voluntary location and eviction.19 Moreover, and in any event,
it was pleaded that the MEC could only perform duties under the court order once
the Municipality had performed its own duties.
33. In reply, Timani CC referred to the history of the litigation, the history of efforts
to secure compliance with the orders, and the case management process to assert
that the MEC does, in this case, have responsibility for the eviction process. Timani
CC also reiterated that the process of enforcement had taken place against the
backdrop where, they had contended that it was from the outset the Municipality’s
duty to terminate the occupation of the occupiers. Moreover, it reiterated that the
occupiers themselves had obtained an order against inter alia the MEC. Noting the
contention that the MEC’s duties could only be effected once there had been
compliance by the Municipality Timani CC rejected this but contended, if that were
the case, they should have answered the letters of January 2024 accordingly.
Key elements of the answering affidavit of the Municipality, Mayor and
Municipal Manager
34. The Municipality, Mayor and Municipal Manager also delivered an answering
affidavit. Their affidavit is deposed to by Mr Jabulani Wonderboy Shabangu, who
describes himself as ‘a Municipal Manager’ at the Municipality. He speaks for the
first to third respondents. The affidavit is also intended to serve as a founding
affidavit for an application to vary the order of 12 December 2023 , which has not
been prosecuted. There are several legs to their defence.
35. The first is a contention t hat one of the key requirements for demonstrating
contempt has not been met, being that the order of 12 December 2023 had not been
served on the Mayor or Municipal Manager for purposes of contempt. They accept in
this regard, however that Mr Mkhonto of the legal division of the Municipality was
this regard, however that Mr Mkhonto of the legal division of the Municipality was
19 The part of the order relied upon reads:
‘7. The parties record that no occupier may be forced to relocate. Occupiers that do not wish to be
relocated to the new site, shall be given two weeks after such relocation to relocate elsewhere at their
own costs, after which such occupiers shall be liable to be evicted in terms of the court order of 14
November 2014, subject to the exclusions of paragraph 1 of the order of 30 January 2015.’
‘made aware of the order’. However, only the legal division, they say, will know of
the order. The participation of ‘legal teams representing the Municipality as an entity
cannot transmogrify into personal service for purposes of contempt proceedings …’
36. The second is that they say that the Municipality is not responsible for the
unlawful settlement on the property and cannot be expected to engage the eviction
process being the responsibility of the landowner, Timani CC.
37. The third is that they say that though cited in the eviction proceedi ngs, at no
stage did the Municipality participate in them and its participation in relocation plans
should not be ‘transmogrified’ into participating into the eviction proceedings. The
Municipality’s duty , they say, is to provide alternative accommodation for persons
affected by eviction proceedings. They have no duty to evict any person from land
that is not Municipal land. That duty, they say, resides with Timani CC. They say that
the order of 12 December 2023 should be interpreted accordingly.
38. They say further that Mr Mkhonto implemented the order , as understood by
the Municipality, by making the occupiers aware of it and its import including ‘of the
relevant land they must move in terms of the previous orders issued by this
Honourable Court.’ Beyond that the order only requires them to engage the Sheriff to
provide undertakings that all arrangements have been done for the eviction, which
must be facilitated and car ried out by Timani CC. They dispute Timani CC’s
interpretation of the order to the effect that the Municipality must carry out the
eviction and contend that there was apparently no meeting of minds in this regard.
Rather, it was Timani CC that should advi se the Municipality of the date it would
carry out the eviction order at which point the Municipality would engage the sheriff
to the extent necessary, in other words, regarding the alternative land where they are
to the extent necessary, in other words, regarding the alternative land where they are
to be accommodated. They at no stage did so. Had they done so, they say, the
Municipality would have engaged the Sheriff. The eviction process, they say, must
be contrasted with the duties of the MEC to resettle from the present occupation to
the alternative land.
39. Ultimately, they say that the December 2023 order should be varied to clarify
its import as to what needs to be done and by whom , in other words in respect of the
arrangements regarding the eviction process itself. The ambiguity in the order, they
say, must be attributed to the Court itself.
40. In reply , Timani CC contended that the Municipality, Mayor and Municipal
Manager ignored the history that culminated in the grant of the December 2023 order
and ignored its own By-Laws. With reference to the litigation history while the matter
was under case management, and affidavits filed in that process, Timani CC
contended that it has always been clear that the eviction obligation resides with the
Municipality and indeed, the Municipality has accepted this duty through the process.
Timani CC, moreover, opposed the variation application.
Legal principles governing contempt proceedings
41. The Constitutional Court has recently restated the legal principles that arise in
dealing with this contempt application in Zuma.20
‘As set out by the Supreme Court of Appeal in Fakie, and approved by this
Court in Pheko II , it is trite that an applicant who alleges contempt of court
must establish that (a) an order was granted against the alleged contemnor;
(b) the alleged contemnor was served with the order or had knowledge of it;
and (c) the alleged contemnor failed to co mply with the order. Once these
elements are established, wilfulness and mala fides are presumed and the
respondent bears an evidentiary burden to establish a reasonable
doubt. Should the respondent fail to discharge this burden, contempt will have
been established.’21
42. The Constitutional Court held further (footnotes omitted):22
20 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18; 2021 (9)
BCLR 992 (CC); 2021 (5) SA 327 (CC) (Zuma).
21 The Constitutional Court restated these principles referring , amongst others, to Pheko v Ekurhuleni
City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II) at paras 32 and 36,
Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52 ; 2006 (4) SA 326 (SCA) (Fakie) at paras 22
and 41 -42, Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA 517 (C) at 522E -H and
Victoria Park Ratepayers’ Association v Greyvenouw CC 2004 JDR 0498 (SE) at para 17.
22 At para 59.
‘It cannot be gainsaid that orders of court bind all to whom they apply. In fact,
all orders of court, whether correctly or incorrectly granted, have to be obeyed
unless they are properly set aside. This, in addition to typifying common
sense, the Constitut ion itself enjoins. Section 165(5) of the Constitution itself
provides that an order or decision binds all persons to whom it applies. The
reason being that ensuring the effectiveness of the Judiciary is an imperative.
This has been confirmed in multiple c ases, including Mjeni, in which the Court
stated that “there is no doubt, I venture to say, that [complying with court
orders] constitutes the most important and fundamental duty imposed upon
the State by the Constitution”. …’
43. A court vested with civil co ntempt jurisdiction has wide powers to grant
appropriate relief via the civil contempt process . To the extent that Timani CC seek
a criminal sanction , the standard of proof applicable to the proceedings is proof
beyond a reasonable doubt, 23 whereas proof on a balance of probabilities suffices
where the remedies sought ‘do not have the consequence of depriving an individual
of their right to freedom and security of the person.’ should a court find that contempt
is established on a balance of probabilities, the court may impose civil contempt
remedies other than committal such as declaratory relief, a mandamus that a
contemnor behave in a particular manner, a structural interdict, a fine or another
order that would have the effect of co-ercing compliance.
44. It is important to bear in mind the purpose of contempt orders, and in doing so
to distinguish between their coercive and punitive purposes:24
‘A coercive order gives the respondent the opportunity to avoid imprisonment
by complying with the original order and desisting from the offensive conduct.
Such an order is made primarily to ensure the effectiveness of the original
order by bringing about compliance. A final characteristic is that it only
order by bringing about compliance. A final characteristic is that it only
incidentally vindicates the authority of the court that has been
23 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v
Compensation Solutions (Pty) Limited (CCT 217/15, CCT 99/16) [2017] ZACC 35 ; 2017 (11) BCLR
1408 (CC); 2018 (1) SA 1 (CC) (26 September 2017) ( Matjhabeng Local Municipality ) at para 67 in
which the preceding paragraphs are summed up.
24 Zuma at para 47.
disobeyed. Conversely, the following are the characteristics of a punitive
order: a sentence of imprisonment cannot be avoided by any action on the
part of the respondent to comply with the original order; the sentence is
unsuspended; it is related both to the seriousness of the default and the
contumacy of the respondent; and the order is influenced by the need to
assert the authority and dignity of the court, to set an example for others.’25
45. In this case, the relief sought is that the Municipality, the MEC and Mayor are
found guilty of contempt of the December 2023 order, that the Municipality be
ordered to pay a fine in such amount as the Court deems meet an d that the Mayor
and Municipal Manager be incarcerated for 90 days or such period as the Court
deems meet. Costs are sought on an attorney and own client scale.
The meaning of the order
46. The December 2023 order has various components, mostly uncontroversial.
What is allegedly controversial is whether the order places any duty on the
Municipality to evict the occupiers or whether this duty resides with Timani CC.
47. The law relating to the interpretation of orders is well-established:
“The starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s intention is to be ascertained
primarily from the language of the judgment or order in accordance with the
usual well-known rules relatin g to the interpretation of documents. As in the
case of a document, the judgment or order and the court’s reasons for giving
it must be read as a whole in order to ascertain its intention.”26
25 Id.
26 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012]
ZASCA 49 ; 2013 (2) SA 204 (SCA) at para 13 which the Constitutional Court affirmed in Eke v
Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) at para 29. On the rules
relating to interpretation of documents see Natal Joint Municipal Pension Fund v Endumeni
relating to interpretation of documents see Natal Joint Municipal Pension Fund v Endumeni
Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012(4) SA 593 (SCA) at para 18 where
the present state of the law on interpretation of documents was expressed as follows (footnotes
omitted): ‘… Interpretation is the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the doc ument as a whole and the
48. In many instances, the duty to evict will reside with the land -owner in whose
favour an eviction order is granted. However, this is not such a case.
49. Firstly, it is in my view clear from the language, purpose and context of the
December 2023 order that the Municipality and MEC were to play an active role in
executing the eviction if the occupiers did not voluntarily resettle. Their role was not
limited to facilitating access to alternative accommodation or voluntary relocation .
This is clear from prayer s 3 and 4 which regulated what was to happen if the
occupiers did not voluntarily relocate, specifically that the eviction would be executed
by the Sheriff as from 17 January 2024. Under prayer 4 , ‘[t]he [Municipality, Mayor
and Municipal Manager] shall, on or before 15 December 2023 serve a copy of th is
order on the Sheriff and thereafter immediately commence engagement with the
Sheriff and the [MEC] to ensure that all necessary arrangements are timeously in
place should it be necessary to execute the eviction order. The [Municipality, Mayor
and Municipal Manager] shall inform the applicant of service on the Sheriff, as soon
as it is effected, and all arrangements. ’ There can be no question that the
arrangements to execute the eviction were to be made as between the Municipality,
Mayor and Municipal M anager and the Sheriff. That is so even assuming Timani
CC’s involvement was required. Moreover, what is clear from prayer 3 is that the
process of eviction, if required , would entail the relocation of the occupiers with the
assistance of the MEC to the alternative land, or if they refuse to do so, the eviction
order would ‘be executed in accordance with paragraphs 5 to 9 of [the 2014 eviction
order].’
circumstances attendant upon its coming into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provis ion appears; the apparent purpose to which it is directed and
the material known to those responsible for its production. Where more than one meaning is possible
each possibility must be weighed in the light of all these factors. The process is objective n ot
subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges must be alert to, and guard
against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory instrument is to cross the divide
between interpretation and legislation. In a contractual context it is to make a contract for the parties
other than the one they in fact made. The ‘inevitable point of departure is the language of the
provision itself’, read in context and having regard to the purpose of the provision and the background
to the preparation and production of the document.’
50. Secondly, the suggestion that the eviction was to be executed by Timani CC
without any involvement of the Municipality or MEC similarly does not comport with
the terms of the previous orders granted which led to the December 2023 order. The
origin of the orders, granted by consent, was a contempt application instituted by
Timani CC in which they specifically sought relief inter alia that the Municipality carry
the costs of the eviction. Timani CC sought this relief relying on the Municipal By -
Laws.27 The first order granted on 17 November 2022 is underpinned by an
acceptance by the Municipality of its duty to fund and effect the eviction order. 28 It is
premised on the Municipality, through its officers, achieving an eviction date, and if
need be applying for a variation.29 That order sets out what is required to achieve the
‘removal and relocation’ of the occupiers from the property including financing for this
purpose entailing inter alia the appointment of a suitable contractor.30 The same may
be said of the order of 20 Ju ne 2023 which included revised implementation plans. 31
For example, Order 2.3 thereof imposed the duty on the Municipality, Mayor and
Municipal manager to ‘(e) vict the illegal occupants on the Applicant’s property by no
later than 31 August 2023, subject o nly thereto that the necessary funding to enable
the [Municipality, Mayor and Municipal Manager] to undertake the said eviction and
relocation is timeously provided by the [MEC] to the [Municipality, Mayor and
Municipal Manager].’
51. That order was amended in the order of 7 August 2023 32 in the following
terms:
‘1. Paragraph 2.3 of the order dated 20 June 2023 (signed on 5 July 2023)
remains operative as far as the eviction date of the illegal occupiers from
[Timani CC’s] property is concerned viz 31 August 2023 but the qualification
to the last-mentioned eviction date viz that the necessary funding to undertake
to the last-mentioned eviction date viz that the necessary funding to undertake
the eviction be obtained, is no longer applicable in the light of the indication by
the [MEC] that [the MEC] will undertake the eviction, [the MEC] will use its
27 Dealt with below at para 54.
28 See above para 22.
29 Para 6.
30 See orders 2 and 4.1.
31 See above para 23 especially Order 1 and 2.
32 See above para 24.
Panel – Service Providers and foresees no difficulty in achieving the eviction
date of 31 August 2023.’
52. When regard is had to this background and context, it cannot reasonably be
maintained in this case that the duty to fund and ultimately execute the eviction order
resides with Timani CC. Rather , responsibility for both the voluntary relocation
process and the execution of the eviction resides with the Municipality, the Mayor ,
the Municipal Manager and the MEC.
53. Thirdly, and as indicated above, the Municipality’s own by-laws are apposit e,
specifically the Municipal Management and Control of Informal Settlements By -Law
(the By -Law),33 which regulates, amongst other things, the Municipality’s role in
dealing with a ‘land invasion’ 34 and an ‘unauthorised informal settlement .’35 Under
the By -Law, the Municipal Manager or representative must, amongst other things
‘monitor and control all informal settlements and take the necessary steps to prevent
land invasion within the area of jurisdiction of the Municipality.’ 36 Once aware of a
land invasion or the existence of a newly established informal settlement,
irrespective of whether the settlement was established as a conseque nce of an
incident of land invasion , the Municipal Manager must make a determination of the
status of the informal settlement as an authorised or unauthorised informal
settlement. If unauthorised, the Municipal Manager must deal with the matter in
accordance with the provisions of section 7. Section 7 is titled ‘Procedures relating
to the termination of unauthorised informal settlements’ and entails a process
whereby the Municipality is obliged ultimately to obtain an eviction order against the
relevant un lawful occupiers and to execute the eviction by deploying its Land
Invasion Reaction Unit. The costs incurred doing so are to be borne by the
Municipality.37 Mr Potgieter contended that the case centrally concerned a land
Municipality.37 Mr Potgieter contended that the case centrally concerned a land
33 Local Authority Notice 46 of 2020 published in Provincial Gazette No 3173 of 17 July 2020.
34 A land invasion is defined in section 1 to mean ‘the illegal occupation of land or any settlement or
occupation of people on land without the express or tacit consent of the owner of the land or the
person in charge of the land, or without any other right to settle on or occupy such land’.
35 Defined in section 1 to mean: ‘any settlement which is not recognized by the Municipality as an
authorized informal settlement which will be demolished and removed in terms of these By -laws.’
36 Section 3(2).
37 Section 7 reads in full:
invasion. That the settlement is at least partly the result of invasion is pleaded in the
founding affidavits in the eviction application. In any event, on the strength of the
eviction order and its history, set out above , the settlement cannot be said to be
authorised. In these circumstances, the Municipality’s assumption of responsibility
for funding and executing the eviction order is consistent with its own By -Law. In this
case, Timani CC obtained the initial eviction order, but th at cannot without more
relieve Municipality of its duties under the By -Law. In any event, it assumed the duty
to evict by consent and in the result by Court order.
54. Mr Potgieter also relied on the Constitutional Court’s decision in President of
the RSA v Modderklip Boerdery (Pty) Ltd 38 to contend that there was a duty on the
Municipality (and its functionaries) to e xecute the eviction order. However, the facts
in that case are distinguishable for various reasons, including the sheer scale of the
(1) As soon as a determination of the status of an unauthorized informal settlement ahs been
made and within the period contemplated in section 4(1), the Municipal Manager or his
representative must, personally or through an official designated –
(a) Inform residents of a shack in the unauthorized informal settlement that their occupation
of the check and the site or stand on which it is situated is illegal; and
(b) Request the Municipal Manager to assist him or her for that purpose, visit th e informal
settlement and notify the residents of the status of the unauthorized settlement by means
of a written notice hand-delivered to each shack in the informal settlement.
(2) The written notice contemplated in subsection (1) must notify the residents of the shack to
vacate the shack and remove any building materials and other personal property from the
unauthorized informal settlement within a period of 24 hours after receipt of the written notice.
(3) If the residents notified in terms of subsection (1) co operate and vacate their shacks and
remove their building materials and other personal property from the site or stand in the
unauthorized informal settlement, the Municipal Manager or his representative must take such
steps as he or she may deem appropria te to prevent a recurrence of any incident of land
invasion or illegal land occupation on that site, stand or unauthorized informal settlement and
must regularly monitor the situation to ensure the non -recurrence of such land invasion or
illegal land occupation.
(4) If the residents notified in terms of subsection (1) fail to cooperate and vacate their shacks
and remove their building materials and other personal property from the site or stand in the
unauthorized informal settlement, the Municipal Manager or his representative must
immediately institute the necessary legal procedures to obtain an eviction order contemplated
in subsection (5).
(5) Within a period of 24 hours after the expiry of the period stipulated in the written notice
contemplated in subsection (1), the Municipal Manager or his representative must lodge an
application in a competent court to obtain an Eviction Order contemplated in section 4, 5 or 6
of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No.
19 o f 1998), against any person or persons jointly or severally, occupying or residing in a
shack or on a site or stand in the unauthorized informal settlement.
(6) The Municipal Manager or his representative must, within a period of 24 hours after obtaining
the eviction order referred to in subsection (5) deploy the Land Invasion Reaction Unit to
execute the eviction order and to terminate the unauthorized informal settlement.
(7) Any costs incurred by the Municipal Manager or his representative for the purposes of
executing the provisions of these By -laws be borne by the Municipality in accordance with its
approved budget.’
38 2005(5) SA 3 (CC) (Modderklip).
invasion, and in turn eviction, in issue in that case , involving tens of thousands of
people. Moreover , the occupiers in that case had nowhere to go and Modderklip
faced a scenario where it would have had to expend far more than the value of the
land to evict the occupiers which in turn would hav e created mass upheaval and
social disruption. The Constitutional Court itself described the circumstances of the
case as ‘extrao rdinary in that it is not possible to rely on mechanisms normally
employed to execute eviction orders.’39
55. Nonetheless, this is a case where the duty to fund and execute the eviction
order does reside with the Municipality, with the assistance of the MEC. This is due
to the terms of the Court orders sought to be enforced , the context in which they
were made and their purpose as set out above.
56. What underlies the apparent reluctance on the part of both the Municipality
and the MEC to implement the December 2023 order is a reluctance to engage in
the coercive as opposed to the voluntary movement of the occupiers . That such a
reluctance exists is perhaps not surprising. That the occupiers may resist the eviction
may be expected and throughout the hearing and papers, there are indications that
the eviction will be politically sensitive due to political allegiances of the occupiers
and the fact that they include undocumented foreign nationals . While the reluctance
is understandable, it cannot however justify non -compliance with Court orders.
Indeed, that is so whether or not a Court order is correct ly granted and absent its
rescission or reversal . The execution of an eviction order will almost invariably be
sensitive in this country. However, our Constitution demands that eviction orders are
humanely executed and there is no reason why th is should not be done in this case.
This is a case where alternative land has been supplied following an application to
that end brought successfully by the occupiers themselves, arrangements have been
that end brought successfully by the occupiers themselves, arrangements have been
made to fund the removal and relocation of the occupiers and there has been an
extended process to ensure that the eviction will be humanely executed with due
notice.
39 See para 47.
57. Under the December 2023 order, neither the Municipality nor the MEC can
avoid participating in a coerced eviction if the occupiers refuse voluntarily to relocate.
Precisely what would be required to be done coercively would, in the nature of
things, depend on how the process unfolded.
58. Under paragraph 4 of the order, t he MEC has assumed the duty to fund and
effect relocation to the alternative land in executing the eviction order in other words
even if this is to be done coercively. To give effect to the purpose of the orders, this
must include demolition of all houses where there has been no voluntary relocation ,
whether or not an occupier refuses to be moved to the alternative land on eviction.
Under the November 2022 order, the duty to source a contractor for this purpose
resided with the Municipality. It was transferred to the MEC under the August 2023
order where it still resides. In this regard, I accept that that there is a level of tension
between paragraph 4 of the December 2023 order 40 and paragraph 5 of the
November 2014 41 eviction order as far as the MEC’s duties to demolish are
concerned. This arises because paragraph 5 of the November 2014 order on its own
terms places the order to demolish on the Sheriff whereas that duty has been
assumed by the MEC (initially the Municipality) under the December 2023 order and
those that preceded it . Paragraph 5 of the November 2014 order still has relevance,
however, in that where an occupier, on eviction, still refuses to be taken to the
alternative land, their belongings are to be retained by the Sheriff as set out therein.
59. Whatever transpires on eviction, however, the duty to ensure the necessary
arrangements for an eviction are timeously in place, should it be required, remains
with the Municipality. This includes liaising with th e Sheriff and the MEC in that
regard. Precisely what arrangements would need to be made would depend on how
regard. Precisely what arrangements would need to be made would depend on how
40 The paragraph reads: ‘In the event that any unlawful occupier fails to relocate on any of the dates
or in the manner as aforesaid, they are to immediately vacate the Applicant’s properties failing which
the eviction order will be executed by the Sheriff a s from the 17 January 2024 until completed. In
executing the eviction order (Annexure X) the unlawful occupiers shall, with the assistance of the
[MEC] be relocated to the alternative land, and if they refuse to do so, the eviction order shall be
executed in accordance with paragraphs 5 to 9 of that order.’
41 The paragraph reads: ‘ Pursuant to the 1 st to 24th respondents (and 27 th and further respondents)
having vacated the properties, or having been evicted therefrom, pursuant to the order contemplated
in prayer 1 and 2 above, the Sheriff of this Court or his lawfully appointed deputy or sub -contractor is
authorised and directed to demolish any structures on the properties formally occupied by the 1 st to
24th respondents (and 27 th and further respondents) an d to retain the building materials of the
demolished structures for a period of one month after the demolishing.’
matters unfold. Indeed, the Sheriff would presumably play an important role guiding
the process, mindful that the MEC is responsible under the order for the contractor
who would demolish the housing and, absent ongoing refusal, relocate the occupiers
to the alternative land. On the face of it, t he remaining arrangements would appear
to relate to the process of storing the property of those who still refuse to relocate to
the alternative lan d. If additional contracting services are required for th at purpose,
arrangements for this purpose would have to be made through the Sheriff.
The order and its breach
60. There is no dispute that the December 2023 order was granted. In my view, it
is plain that the Court order has not been enforced and has been breached. Relief is
sought only against the Municipality, the Mayor and the Municipality. As regards
their duties, there was a failure to comply with paragraph 4 of the order42 in that there
was apparently no service of the order on the Sheriff no engagements with the
Sheriff and MEC to ensure that all necessary arrangements are timeously in place
should it be necessary to execute the eviction order and no notification of the
applicant of service on the Sheriff or all arrangements. There is also a failure to
comply with paragraph 8 of the order.43
Knowledge of the Court order
61. The December 2023 order was granted by agreement. In these
circumstances, Mr Potgieter submitted that there can be no question that the
Municipality, the Mayor and the Municipal Manager had knowledge of it. In my view,
this is a persuasive submission as far as the Municipality itself is concerned as there
42For convenience, paragraph 4 reads: ‘The [Municipality, Mayor and Municipal Manager] shall, on or
before 15 December 2023 serve a copy of this order on the Sheriff and thereafter immediately
commence engagement with the Sheriff and the [MEC] to ensure that all necessary arrangement s are
timeously in place should it be necessary to execute the eviction order. The [Municipality, Mayor and
Municipal Manager] shall inform the applicant of service on the Sheriff, as soon as it is effected, and
all arrangements.’
43For convenience, paragraph 8 reads: ‘The [Municipality, Mayor and Municipal Manager] are
furthermore ordered to file an affidavit with the Court and to upload same onto CaseLines as soon as
this order has been served in accordance with paragraph 4 and 7, by no later than 18 Dece mber
2023.’
is no suggestion that the orders were agreed to by the legal officers without
authorisation.
62. I am at this stage, however, not persuaded that the relevant Mayor and
Municipal Manager had knowledge of the order . This is because it is not clear from
the papers who these individuals are at material times and whether the intention is
that the order be enforced against the incumbents as at January 2024 or the present
incumbents, if different . I accept that the Mayor and Municipal Manager are
ultimately the responsible functionaries, because the ir offices have effectively
assumed responsibility for implementing the order . However , they are not cited by
name, but with reference to their office . It is common cause that there was personal
service on these functionaries. One is thus left to speculate as to who knew what
about the orders that were granted and whether the same people are in office at the
point of enforcement. In this regard, Mr Shabangu says on affidavit that it was only
the legal officers who were apprised of the order , a contention which is difficult to
understand given that the orders we re granted by agreement . However, he also self
describes as ‘a Municipal Manager ’. This may be obfuscation but it is unclear
whether this means that he is the second respondent or whether there is someone
else who holds that office.
63. In my view, while I am not satisfied that the relevant Municipal Manager and
Mayor know about the orders, the applicant should nonetheless be afforded the
opportunity to serve the papers and the relevant order accordingly and be granted
leave to substitute their citation with their names so that the application may be
further prosecuted against these functionaries should that become necessary.
Moreover, the first to third respondents should be required to disclose the relevant
information.
Wilful and mala fide breach?
64. In my view, it has been established beyond reasonable doubt that the
64. In my view, it has been established beyond reasonable doubt that the
Municipality’s non-compliance was wilful. There is no explanation as to why there
was a failure to serve the Sheriff , and to make any arrangements at all with the
Sheriff regarding the eviction. It would have been one thing if the Municipality had
sought to give effect to the order and raised such queries or concerns as it may have
had, but it did nothing. Indeed , it did not even respond to Timani CC’s queries as to
implementation after the time for eviction had come and gone.
65. The determination of whether the Municipality was mala fid es is more
nuanced. In this regard, I am of the view that the contention that the Municipality’s
duties in respect of the occupiers ended with facilitating voluntary relocation to be
highly spurious in context of this history of the matter and the orders made, the terms
of the December 2023 order and the By-Law. Moreover, the failure to do anything
and the election merely to sit back through the December process is not indicative of
a party seeking in good faith to give effect to a Court o rder. It is indicative of a party
actively seeking to avoid becoming embroiled in what are almost invariably difficult
orders to implement and one that is perhaps particularly difficult in this case. To that
extent, the presence of mala fides may be inferred.
66. However, I cannot discount th e reasonable possibility that the Municipality
genuinely entertained doubt as to the extent of their duty in the event that coercive
power had to be exercised . For example, doubt legitimately arises because of the
tension between paragraph 4 of the December 2023 order and paragraph 5 of the
November 2014 eviction order . To the extent that this is so, however, the manner in
which these paragraphs are reconciled is set out above.
67. Accordingly, there can at leas t at this stage be no further doubt that the
Municipality must play a central role in executing the eviction order under the
December 2023 order and most pertinently making the necessary arrangements with
the Sheriff and the MEC in accordance therewith.
68. While I accept that the criminal standard is not met, I am unable to conclude
that the civil standard for contempt has not been met . Whatever doubt may have
that the civil standard for contempt has not been met . Whatever doubt may have
been entertained, on no interpretation of the order was the Municipality in a position
to sit back and do nothing as it did. Moreover, the stance adopted that responsibility
for all coercive eviction measures resided with Timani CC is, in context, spurious.
Remedy, costs and order
69. In light of the conclusions reached above, th is Court is unable to grant all of
the relief sought by Timani CC. In my view, the appropriate relief to be granted at
this stage is a declaration that the Municipality is in contempt of this Court . There
would be little purpose in seeking to impose a f ine as this would do nothing to
facilitate compliance not least in circumstances where the Municipality is budget
constrained. Moreover, provision must be made to enable Timani CC to continue to
seek relief against the Municipality should compliance be ongoing, i ncluding relief
that is competent should the criminal standard of proof be met in due course.
70. Moreover, Timani CC should in my view not be precluded from seeking further
relief against the Mayor and Munic ipal Manager, whether for purposes of securing
compliance or for punitive purposes.
71. As indicated above, Timani CC does not at this stage seek relief against the
MEC. However , costs are sought. I agree with Mr Potgieter that a costs award is
justified against the MEC. It was wholly unreasonable for the MEC simply to fail to
respond to correspondence addressed in respect of compliance with the order whi ch
led to the institution of these proceedings. Moreover, while the MEC was in some
measure disabled fro m acting to effect the eviction in the absence of arrangements
being made by the Municipality, the MEC also adopted a spurious stance that the
Department bore no responsibility for the coercive aspects of the eviction order . I
have considered whether these costs should include the costs of the replying
affidavit and have concluded that they should because in context it remained
appropriate for Timani CC to explain its position and reply to the allegations in the
answering affidavit.
72. In my view costs on Scale C are warranted given the complexity of this matter
and its history.
73. The following order is made:
a. The first respondent is declared to be in contempt of this Court.
b. The first is directed, within ten days of the date of this or der, to supply
the applicant with the names and details of the Mayor and Municipal
Manager incumbent during December 2023 and January 2024 and
presently incumbent.
c. The applicant is granted leave to apply on the same papers for further
relief against the second and third respondents and should it do so may
by notice substitute or, as the case may be, supplement, their citations
with their full names.
d. The applicant is granted leave to apply on the same papers for further
relief against all parties in the event that the December 2023 eviction
order is not implemented by 15 December 2025.
e. The costs of the application are to be paid against the first to fourth
respondents, jointly and severally, on Scale C.
f. The wasted costs occasioned by the postponement from 30 April 2025
to 19 May 2025 are to be paid by the first to third Respondents, jointly
and severally, on scale C.
SJ COWEN
JUDGE OF THE HIGH COURT
PRETORIA
Date of hearing: 19 May 2025
Date of judgment: 03 September 2025
Appearances:
Applicant: Mr Potgieter SC instructed by EY Suart Attorneys Inc