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
LIMPOPO DIVISION, POLOKWANE

CASE NUMBER: 3157/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 18 November 2025
SIGNATURE:

In the matter between:

MONDOBYA PHILLIP MONYELA APPLICANT

-and-

MPHO RACHEL MATLAKOLA 1ST RESPONDENT

ZEBEDIELA NDEBELE TRIBAL AUTHORITY COUNCIL 2ND RESPONDENT

Delivered : 18 November 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 18 November
2025 at 10:00 am.
Date heard : 15 October 2025
Coram : Bresler AJ

JUDGMENT

BRESLER AJ:

Introduction:

[1] The Applicant applies for an order declaring that he and the 1 st Respondent
hold equal rights to the property situated at Stand 3[...] Malatji Village, Zebediela (the
'Property').

[2] The 1 st Respondent opposed the application. No Heads or Argument were
delivered on behalf of the 1 st Respondent prior to the hearing of the matter. At the
onset of the proceedings, counsel for the 1 st Respondent requested leave from the
court to hand up the Heads of Argument. Counsel for the Applicant was already
placed in possession of a copy, and no objection was thus raised to the late delivery
thereof. As such, the court accepted same at this belated stage.

[3] The Applicant case is briefly the following: The Applicant and the 1 st
Respondent were in a romantic relation ship. During or about October 2013, they
agreed to obtain a stand. It was orally agreed that the 1 st Respondent will attend the
offices of the 2nd Respondent. The stand was consequently allocated to her.

[4] On the 2 nd of November 2013, the 1 st Respondent went back and requested
that the stand be registered in the name of the Applicant as he was the head of the
family. This was done accordingly. He thereafter continued to build a house on the
stand.

[5] During 2016, the 1 st Respondent indicated that she requires proof of
residence to enable her to claim a housing subsidy from her employer. The Applicant
was called by the 2 nd Respondent, and he consequently confirmed that proof of
residence may be provided to the 1 st Respondent. It later transpired that t he 2 nd
Respondent issued a new PTO (permission to occupy) in her name to the exclusion
of the Applicant.

[6] Several discussions ensued between the parties, resulting in the PTO in
favour of the 1 st Respondent being cancelled by the 2 nd Respondent. A new PTO in
favour of both parties was issued on the 14th of July 2017.

[7] According to the Applicant, the 1st Respondent hereafter evicted the Applicant
from the property. Several interactions between the Applicant, Respondents, the
Headman of the Village, the Chief and COGHSTA transpired hereafter, resulting in a
ruling by the 2 nd Respondent that the 1 st Respondent is to vacate the property until
such time that proof was presented that she is solely entitled to the stand. This has
not been done to date he reof, but the 1 st Respondent nonetheless remains in
occupation of the property and solely derives the benefit of the use and occupation
of the property to the exclusion of the Applicant.

[8] The 1st Respondent opposed the application. The first issue rais ed is the fact
that the order is incompetent since the parties no longer share a love relationship.
Co-habiting a property would be contra bonos mores . The 1 st Respondent also
submits that there is a protection order issued against the Applicant which proh ibits
compliance with any order that this court may grant.

[9] Technical objections are also raised to wit the fact that the jurisdictional
requirements for the granting of declaratory relief are not met and the fact that the is
insufficient compliance with the regulations pertaining to the commissioning of the
affidavit.

[10] As to the merits, the 1 st Respondent submits that she built the house on the
property by utilizing a Capitec loan. The Applicant only contributed the fence to the
property. The stand was in her name even before the relationship started. It was only
changed because of church rules demanding that the man is head of the household.

[11] The 1st Respondent furthermore testifies that the PTO was changed back into
her name as she was the rightful possessor. She denies having evicted the Applicant

her name as she was the rightful possessor. She denies having evicted the Applicant
as he left voluntarily to live with his wife. It however stands to be noted that the

status of the PTO is not in dispute. The 1 st Respondent conceded that it is currently
held in both their names.

[12] The Court is called upon to determine if the Appli cant and the 1st Respondent
should be entitled to jointly occupy and make use of the property.

The Applicable Legal Principles:

[13] The Court has the power in terms of Section 21(1)(c) to:

'(c) in its discretion, and at the instance of any interest ed person, to enquire
into and determine any existing, future or contingent right or obligation ,
notwithstanding that such person cannot claim any relief consequential upon
the determination'.

[14] A court cannot grant a declaration regarding a fact: the declaration must relate
to a right. Persons who have a right are those in whom the right inheres or against
whom it avails.1 A declaratory order should not be sought where there is a dispute of
fact.2 If a dispute of fact is foreseeable the declaration of rights should be sought by
way of action and not application.3

[15] In National Director of Public Prosecutions v Zuma 4 the Supreme Court of
Appeal stated:

'[26] Motion proceedings, unless concerned with interim relief, are all about
the resolution of legal issues based on common cause facts. Unless the
circumstances are special, they cannot be used to resolve factual issues
because they are not designed to determine probabilities.'


1 Electrical Contractor's Association SA v Building Industries Federation SA 1980 (2) SA 516 (T
2 Hattingh v Ngake 1966 (1) SA 64 (O)
3 Electrical Contractor's Association SA v Building Industries Federation SA 1980 (2) SA 516 (T)
4 2009 (2) SA 277 (SCA) at [26]

[16] The Court's discretion to declar e the right arises only when the Court is
satisfied that the claimant is an interested person and that there is an existing, future
or contingent right or obligation.5

[17] The following was stated in Naptosa and Others v Minister of Education,
Western Cape, and Others6:

'A Court, having at the first stage of the enquiry decided that the claimant is a
person interested in an existing, future or contingent right or obligation, would
at the second stage enquire whether or not the dispute is a proper one fo r the
exercise of its discretionary power. As to this,
'... it must be borne in mind that, though it may be competent for a Court to
make a declaratory order in any particular case, the grant thereof is
dependent on the judicial exercise by that Court of its discretion with due
regard to the circumstances of the matter before it'.
(Per Wessels JA in Reinecke v Incorporat ed General Insurances Ltd 1974 (2)
SA 84 (A) at 95C.) What the discretion entails is explained by Williamson J
(as he then was) in Adbro Investment Co Ltd v Minister of the Interior and
Others 1961 (3) SA 283 (T) at 2858 - C:
'. . . (T)he Court in each case must . . . carefully determine whether or not the
particular case in question is a proper case for the exercise of its discretion.
For a case to be a proper case, in my view, generally speaking it should
require to be shown that despite the fact that no consequential relief is being
claimed or perhaps could be claimed in the proceedings, yet justice or
convenience demands that a declaration be made '
A declaratory order is an order by which a dispute over the existence of some
legal right or entitlement is resolved. The right can be existing, prospective or
contingent (Suid -Afrikaanse Onderlinge Brand - en Algemene
Versekeringsmaatskappy Bpk v Van den D Berg en 'n Ander 1976 (1) SA 602
(A)). A declaratory order need have no claim for specific relief attached to it,

(A)). A declaratory order need have no claim for specific relief attached to it,
but it would not ordinarily be appropriate where one is dealing with events

5 Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A)
6 2001 (2) SA 112 (C) at 125

which occurred in the past. Such events, if they gave rise to a cause of action,
would entitle the litigant to an appropriate remedy.
The second applicant is no longer employed by the Department. The other
teachers have been appointed to permanent positions. Their claims for
benefits lie in the past. Instead of bringing claims sounding in money for
benefits which they should have received but did not receive, the applicants
claim a declaratory order that they are for 1998 and 1999 entitled to all
benefits afforded to educators. This is not, in the circumstances, an
appropriate remedy. The claim need not have been brought by way of action.
It could, like the claim for the declaratory order, have been brought on motion.
It would have been the better course to take. It is artificial to declare that a
litigant has certain rights when what he really wants is a iudgment sounding in
money. The avai lability of an alternative remedy is an element to be
considered in deciding whether or not to grant a declaratory order. (Baxter
Administrative Law at 710.)
(own underlining)

[18] And further:7

'I consider that the substantial delay in bringing these proceedings is another
reason for exercising our discretion against the grant of a declaratory order. It
is well established law that undue delay may be taken into account in
exercising a discretion as to whether to grant an interdict or a mandamus, or
to grant relief in review proceedings. The declaratory order, being as flexible
as it is, can be used to obtain much the same relief as would be vouchsafed
by an interdict or a mandamus. Where it is not necessary that a record of
proceedings be p ut before the Court, a declaratory order could serve as a
review. A Court, in exercising its discretion whether to grant a declaratory
order should, accordingly, in an appropriate case weigh the same
considerations of Justice or convenience' as it might do in the case of an
interdict or a review.'

interdict or a review.'
Prejudice features large in deciding what is just or convenient.

7 At 126

[19] Having regard to the authorities stated herein above, this Court is not
convinced that the declaratory relief should be granted notwithstanding the fact that it
is common cause that the PTO is issued in both parties' names. Notwithstanding the
logistical difficulties, the Applicant elected to have his right declared - this is simply
not the appropriate remedy in the circumstances.

[20] There was also a considerable delay in launching the proceedings. Both
parties have moved on with their lives. It is also quite evident that it would not be
practical to grant a declaratory order where the actual remedy lies in the termination
of the possible partnership agreement that was concluded between the parties
pertaining to the property, alternatively a review of the decision to register the
permission to occupy in both parties' names. Declaratory relief will not take the
matter further and the actual dispute between the parties will remain unresolved.
Having regard to the personal issues prevailing between th e parties, it will in fact
cause severe prejudice at this stage should the court grant an order declaring any
party's rights.

[21] On this basis justice and convenience favours the dismissal of the application.

[22] There is no reason why the cost orde r should not follow the outcome of the
proceedings. Having regard to inter alia the level of complexity, the nature of the
proceedings and the importance thereof to the parties, costs to counsel on Scale B is
warranted.

Order:

[23] In the result the following order is made:

23.1 The application is dismissed;
23.2 The Applicant is ordered to pay the costs of the 1st Respondent
on party and party scale including costs to counsel on Scale B.

M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE


APPEARANCES:

FOR THE APPLICANT : Adv. KJ Masuta
INSTRUCTED BY : Clarrence Mangena Incorporated
Polokwane
info@cmincattorneys.co.za
ca@cmincattorneys.co.za

FOR THE 1ST RESPONDENT: Adv. K Mokwena
INSTRUCTED BY : EK Mohale Inc Attorneys
Lebowakgomo
vinolimat@gmail.com
ekmohale30@gmail.com