IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MTHATHA
CASE NO: 3536/2024
In the matter between:
MANDOBANDILE MDLAZI First Applicant
NONENE GIGI Second Applicant
and
KT MCHASA SECONDARY SCHOOL First Respondent
NTOMBEKHAYA QUWE Second Respondent
JUDGMENT
PITT AJ
Introduction
[1] This is an urgent application in which the applicants seek the following
relief:
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PART A
“1. That the applicants be and are hereby granted leave to bring this application
as one of urgency dispensing with normal processes in terms of rule 6(12) of
the Uniform Rules of Court.
2. That the applicants’ failure to afford the respondent a 72 hours’ notice of
proceedings in compliance with t he General Law Amendment Act be and is
hereby condoned, should it be said to be applicable.
3. That pending the finalisation of the relief sought in Part B of the Notice of
Motion an order along the following lines be made:
3.1 That the applicants be and are hereby granted leave to intervene as
applicants in this matter and respondents in the eviction proceedings.
3.2 That the operation and/or execution of the court order issued on 30
September 2025 be and is hereby suspended and/or stayed.
3.3 That the respondents be and are hereby interdicted and/or restrained
from demolishing the applicants’ homes, dwellings and/or structures
built near KT Mchasa Secondary School, in the district of Tsolo.
3.4 That the respondents be directed to pay cos ts only in the event of
opposition otherwise costs thereof should be costs in Part B.
3.5 That the court grants such further and/or alternate relief as may be
required by the interests of justice.”
[2] The relief sought in part A as mentioned above is to be followed by part
B, in which the applicants seek to launch proceedings for rescission, variation or
setting aside of the order of 30 September 2025. When approached by the
applicant on 13 October 2025, the court issued a directive that the applicants
must serve the papers on the respondents on or before 10h00 on 14 October
2025, and that the matter will be heard at 1530 on 14 October 2025. The
respondents oppose the application and filed an answering affidavit. The
applicants did not file a replying affidavit.
[3] Briefly, the deponent to the founding affidavit, Mr Madobandile Mdlazi
(Mr Mdlazi”), sketches as background the following facts. He is the grandson of
the late Magigaba and Nokiki Mdlazi, who died a few decades ago. While they
were alive, the se grandparents were married and were given permission to
occupy the land in question by the then Department of the Interior for the
Transkei Government. The land was allotment number 426, and it measures 4
acres. Various other families were also given per mission to occupy different
pieces of land in the same vicinity. A few decades later, meetings were held
between the community members and the Department in which it was resolved
that there was a need for the establishment of a government school for the
benefit of their children. A resolution was taken to allocate a piece of land for
the establishment of a school. Mr Mdlazi’s family was one of the families which
agreed to release portions of their land for the establishment of the school,
giving rise to the KT Mchasa School, the first respondent. Afterwards, the land
was earmarked and later fenced, then the school was built within the boundary
of the fenced yard. The fencing still exists and has not been damaged nor
encroached upon.
[4] During 2020, the Mdl azi family allocated a portion of their land to the
second applicant, Nonene Gigi (“Ms Nogigi”) after having followed all the
processes and complying with notifying the traditional authority, which
sanctioned and approved the allocation. In the recent year s, the school principal
and a member of the School Governing Body (SGB) started having ‘ some
qualms with the Mdlazi family’ . They contended that the homes of the
applicants which had been there for ages before the establishment of the school
were built on the school premises. Mr Mdlazi denied any wrongdoing and
contended that the school premises exist independently from their homes. He
also alleged that the Depart of Education built the school from a portion of the
land donated by their forefathers. Also, h e contends that the Department should
be involved to resolve the disputes relating to the borders as they are aware
thereof, and that a meeting should be held with the community and traditional
authority to resolve the dispute. This did not occur, and inst ead the school
instituted proceedings for their eviction and demolition of their homes.
[5] Mr Mdlazi alleges further that on 11 October 2025 he and his wife arrived
home from North West Province and found a document on the dressing table.
Upon enquiry, he was informed that the document was left with his daughter on
1 October 2025 by a person said to have been sent by the court. He read the
document and found it to direct their eviction and demolition of his home. He
consulted his legal representatives and consulted with them on 13 October 2025,
where it was brought to his attention that it was actually a court order for his
eviction and demolition of his home.
[6] Mr Matotie submitted on behalf of the applicants that it was not just and
equitable to grant the eviction and demolition order because:
a. The applicants never received notice of the proceedings.
b. The applicants were never served with a notice envisaged in section 4(2)
of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act No. 19 of 1998 (“the Act”), informing them of their rights and
informing them that an application for th eir eviction would serve for
hearing on 30 September 2025.
c. The respondents did not have standing to institute eviction proceedings
as they are not the owners of the land and no connection with the land
occupied by them. Even if there was a connection, ownership rights
would vest with the Department of Education and not with the
respondents.
d. The respondents did not have a right nor a power to institute eviction
and demolition proceedings, but the executive authority of the
Department of Education woul d have such powers. Therefore, the
Member of the Executive Council of the Department of Education (“the
MEC”) would have the powers. The school is a public school under the
authority of the Department of Education.
e. The second respondent, Ntombekhaya Quw e, who is described in the
papers as the chairperson of the SGB of the school, did not have any
capacity to institute the proceedings on behalf of the Department of
Education and on behalf of the school. The same applied to the SGB in
terms of authorising Ms Quwe to represent the Department of Education
and the school.
f. The Department of Land Affairs and Agrarian Reform was not joined as
a party to the proceedings, especially because this Department knows
the borders of the land which belongs to the Depa rtment, and this would
help to resolve the land disputes in the area.
g. Although cited as a party, the local municipality was not asked to avail
accommodation to the occupiers who might become homeless after their
homes are demolished. It was also not req uired to issue a report on the
personal circumstances of the occupiers, including their capacity to
obtain alternative land or accommodation consequent upon the
demolition of their homes. The role of municipalities in eviction
proceedings is to prevent homelessness.
[7] Mr Mdlazi alleges that if they had received notice of the application, they
would have attended court and opposed the granting of the eviction and
demolition order sought against them. He alleges further that the land in
question is occupie d b various persons who live there with their children, and
that they have no alternative accommodation should they be evicted from their
homes, which is their only place of residence. The same applied to Ms Gigi
should she become homeless.
[8] The applicants also allege that the respondents did not make out a case
for the order of eviction, and that the order was granted in error because the
court was furnished with incorrect information. Had the court been provided
with the above facts, it would not have granted the eviction and demolition
order. Mr Mdlazi also contends that they were not in wilful default by not
opposing the proceedings. They were not served with the notice of the
proceedings. Mr Matotie pointed the court to the notice of set down for th e
proceedings, which was only served on NZ Mtshabe Inc. The applicants in this
application were not served with the papers. Rather, there is nothing that
suggests that they were served with the papers. This supports their contention
that had they been awar e of the application on 30 September 2025, they
certainly would have opposed the application.
[9] Mr Mngunyana, on behalf of the respondents, flatly disagreed with the
last submissions and argued that the main application, which gave rise to these
proceedings, is not before court and does not form part of this application. He
even argued that he does not have thos e papers in his brief and that the court
should not have any regard to the papers in the main application. The present
application bears the same case number as the main application in which the
eviction and demolition of the applicants’ property was order ed. The applicants
mention in their papers that this application is for the stay of the order obtained
in the main application. Mr Mngunyana also complained that the applicants did
not make specific reference to the papers in the main application in this
application, and therefore the papers in the main application must be
disregarded. The file relating to the main application is the same as the
interlocutory application, which the contents of the main application were a part
of. The court therefore does no t understand nor accept that Counsel was briefed
to oppose an application in which he appeared in the main application, which
bears the same case number as the interlocutory application without the papers
in the main application.
[10] In support of the i ssue of urgency, Mr Matotie submitted that the matter
was urgent because the order dated 30 September 2025 specified that the
applicants must demolish any structures constructed on the property within ten
days of the court order being granted. Mr Mngunyana argued differently that the
matter is not urgent and that the applicants created their own urgency.
[11] Mr Mngunyana referred the court to East Rock Trading 7 (Pty) Ltd and
Another v Eagle Valley Granite (Pty) Ltd1, an unreported judgment of the South
Gauteng Division. In this case, it was held that it is natural to see harm as the
equivalent of urgency, since without harm or some threat there would never be a
need to bring an urgent application. He contended further that in that case, it
was held that the notions of harm and lack of substantial redress in due course
1 [2011] ZAGPJHC 196.
should be kept separate, and the test for urgency should not be obscured by a
confusion between the two. He pointed out further that it was also held more
specifically that it is important to note that the rules require absence of
substantial redress, which is not the equivalent to the irreparable harm that is
required before the granting of an interim relief. The court held that:
“It is something less. He may still obtain redress in an app lication in due course, but
it may not be substantial. Whether an applicant will not be able to obtain substantial
redress in an application in due course will be determined by the facts of each case.”
[12] The court accepts what was submitted in respect of the above case.
However, it finds application in favour of the applicants. The facts which the
applicants rely on for urgency support the urgency of the relief they seek.
According to the applicants, the urgency was informed by the ten -day period
within which they were to demolish their structures on the land in question after
the respondents obtained the order on 30 September 2025. If the applicants had
approached the court in due course on the normal role of cases, the ten -day
period within which they had to demolish their homes would have come and
gone, and they would have been homeless and/or in contempt of the order.
[13] While making their respective submissions, Counsel for the respondents
indicated that had the applicants approached them subsequent to the order being
granted on 30 September 2025, instead of coming to court on this application,
they may have entertained an indulgence to stay the eviction and demolishing of
the houses to a further date to accommodate the applicants. Mr Matotie then
asked the question why the respondents opposed the application if that was their
attitude. This suggests an element of compromise from the respondents on the
terms of the eviction and demolition order.
[14] The test for intervening as a party is, according to Ansari and Another v
Barakat and Others2 as follows:
“[9] A party seeking to intervene in proceedings can either do so in terms of rule
12 of the Rules of Court, or in terms of the common law3.
[10] A party seeking leave to intervene must prove that:
(a) he or she has a direct and substantial interest in the subject matter of
the litigation which could be prejudiced by the judgment of the court;
and
(b) that the application is made seriously and is not frivolous, and that the
allegations made by the applicant to constitute a prima facie defence
to the relief sought in the main application4.
The test to be applied in determining whether or not a bona fide defence to the main
application has been demonstrated is the same as the one that applies to warding off
summary judgment.5
[15] With regards to the 72 -hour notice, it was conceded by both parties that
since there is no nominal respondent before the court by way of the MEC for
Education or any other stay organ, there was no need to consider this relief. The
court therefore does not pronounce on this relief.
2 (5530/2011) [2012] ZAKZDHC 1 (16 January 2012).
3 Minister of Local Government v Sizwe Development 1991 (1) SA 677 (TkGB) at 678 H; Ex parte Sudurhavid: In
re Namibia Marine Resources v Ferina (Pty) Limited 1993 (SA) 737 (NmHC) at 74 1 g; Shapiro v SA Recording
Rights Association Limited (Galeta Intervening) 2008 (4) SA 145 (W) at 150 a -b para 10 and 11.
4 Registrar of Banks v Regal Treasury Private Bank Limited (under curatorship) and Another (Regal Treasury
Bank Holdings Limited Intervening) 2004 (3) SA 560 W (at 573 e -f). Registrar of Banks v Regal Treasury Private
Bank Limited (under curatorship) and Another (Regal Treasury Bank Holdings Limited Intervening) 2004 (3) SA
560 W (at 573 e-f).
5 Ex parte Moosa: In re Hassim v Harrop-Allin 1974 (4) SA 412 T (at 416 G-H).
[16] Although the relief of the applicants intervening as parties in this
application, and there being no express opposition thereto, wa s not dealt with in
argument, I find that the facts put forward by the applicants support this relief.
Also, having heard the parties and having read the papers, I am of the view that
the applicants have on a balance of probabilities met the requirements f or them
to intervene as applicants in this application and as respondents in the main
application. The applicants have also made out a case for the stay of the
operation of the court order of 30 September 2025. The applicants have also
shown on a balance of probabilities that they may well have a bona fide defence
to the main application. That should be determined in the rescission application,
which is part B.
[17] Mr Mdlazi identified himself in the founding affidavit as one of the
persons who is ‘ in occ upation of my home established near KT Mchasa
Secondary School together with my wife and four children who are persons in
lawful occupation and possession of pieces of land situated near or adjacent to
KT Mchasa SS.’ He further described himself and his family as persons who
will be adversely affected by the ramifications of eviction and demolition in the
outcome of these proceedings. In the main application, there are no persons
identified by the respondents. Mr Matotie argued that the respondents’ case in
the main application is defective in that it refers to the first respondent in the
main application as being unidentified. This is despite reference being made in
the founding affidavit in the main application to on e Madiba. In defence, Mr
Mngunyana submitted that the respondents were not sure that this was the
proper name of this Madiba, and that he was therefore still unidentifiable by this
name.
[18] On the version of the applicants, they stand to lose their only places of
residence and will be left homeless if the order in the main application is not
stayed. They also allege that they have children who reside with them on the
land in question. Further , the applicants do not have alternate accommodation
should their homes be demolished and they be evicted from the property. Our
Constitution guarantees every person the right to housing. This includes the
right not to be evicted from one’s home or residen ce. Section 4(2) of the PIE
Act also provides for certain constitutional prerogatives which a court must
consider when faced with an application for eviction.
[19] Mr Matotie submitted that the section 4(2) notice which the respondents
placed reliance on for the order of 30 September 2025 did not comply with the
provisions of section 4(2) in this regard. Mr Mngunyana was at pains to
convince the court otherwise, even though he did not want to refer to the actual
notice in the main application. This sugges ts that the applicants may have a
triable case in the main application, and that the respondents will have to prove
their case after it has been fully ventilated. The court finds this a very important
aspect not to be overlooked when considering the rights of the applicants to
being heard, especially when their constitutional right to housing is affected. It
is in the interests of justice that this is considered. For these reasons, the
application succeeds.
Order
Accordingly, the court makes the following interim order:
1. The applicants are granted leave to bring the application as one of
urgency.
2. The applicants are granted leave to intervene as applicants in this matter
and as respondents in the eviction proceedings.
3. The operation and/or execution of the co urt order issued on 30
September 2025 is hereby suspended and/or stayed.
4. The respondents are interdicted and/or restrained from demolishing the
applicants’ homes, dwellings and/or structures built near KT Mchasa
Secondary School in the district of Tsolo.
5. The costs of the application will be costs in part B of the application.
DV PITT
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Adv Matotie
Instructed by : SR MHLAWULI &
ASSOCIATES
MTHATHA
Counsel for the Respondents : Adv Mngunyana
Instructed by : L MTHAMBO ATTORNEYS
MTHATHA
Heard on : 16 OCTOBER 2025
Date judgment delivered : 23 OCTOBER 2025