IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT]
Case No: 2025-1999871; and
2025-200031
In the matter between:
BULELWA ZONDANI AND 262 OTHERS First Applicant
NTOMBENTLE WITTBOOI AND 181 OTHERS Second Applicant
And
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF HUMAN SETTELEMENT: EC First Respondent
BUFFALO CITY METROPOLITAN MUNICIPALITY Second Respondent
RED ANT SECURITY AND EVICTION SERVICES Third Respondent
___________________________________________________________________
JUDGMENT
MAJIKI J
Introduction
[1] On 31 October 2025, this court made an order dismissing two applications
brought by the applicants. These are the reasons for the order. The applications
were heard together, by mutual agreement. The dispute concerns the applicants’
occupation of the low -cost houses at the Reeston Housing Project, also known as
Better Life, Reeston, East London. The applicants in the Ntombentle Wittbooi
(Wittbooi) matter seek an interim interdict against the respondents from illegally and
forcefully evicting the applicants, assaulting and molesting them, or maliciously
injuring their property. The applicant did not indicate the return date. In Bulelwa
Zondani (Zondani) the applicants seek that a Rule Nisi be issued, returnable on 25
November 2025, which seeks a declaration that the applicants’ eviction is unlawful.
Furthermore, an order interdicting the physical eviction of the applicants. The
respondents oppose the application.
Background
[2] In the Wittbooi matter, according to the applicants, they were forcefully and
violently removed by the respondents from the houses they had been in peaceful
and undisturbed possession of, since 16 October 2025. In the Zondani matter, the
applicants aver th at they have been in occupation of the houses for more than five
years and were being evicted by the respondents without a court order and without
complying with the provisions of the Prevention of Illegal Eviction from and
Occupation of Land Act, 1998 (PIE Act).
[3] The main deponent on behalf of the respondents is the Head of the
Department of Human Settlements (the department). He states that, amongst others,
he is responsible for the efficient management and administration of the department,
including the proper use and care of State property. The City Manager of the Buffalo
City Municipality (the municipality) aligned the municipality with the said response.
The primary basis of the respondents’ opposition is that, the applicants were
The primary basis of the respondents’ opposition is that, the applicants were
interdicted from occupying the houses, the houses have not been certified for proper
human habitation, construction is still going on as well.
The respondents offered temporary accommodation to the applicants, fenced 30 -
square-meter units at Mtsotso Settlement, in Mdantsan e, Ward 12. The offer still
stands.
[4] The applicants in the Wittbooi matter do not address these issues in their
replying affidavit, adopting a stance that they are irrelevant to their case. They state
that an alternative accommodation tender was not ex tended to them. In the papers,
the number of available structures is not specified, and it is stated that not everyone
would be accommodated. However, they would be willing to listen to the tender. The
replying affidavit in the Zondani matter challenges th e authority of the deponent to
sign the answering affidavit. Furthermore, they state that they were not cited in the
interdict application referred to by the respondents. The respondents have not
furnished evidence of incomplete units. There is no construc tion going on in the area
and the respondents never offered them alternative accommodation.
Applicants’ case: Wittbooi matter
[5] The summary of the applicants’ case in the Wittbooi matter is that, since 2021,
the 182 applicants had been in occupation of t he applicants’ specified houses in the
Reeston Project. That establishes their prima facie right. Mr Mdolomba from the
department and Mr Sinethemba Bam from the municipality, together with the
members of Red Ant Security and Eviction Services (Red Ants), forcibly and violently
removed them. In that process, they damaged their property. They caused them
irreparable harm by assaulting them, pointing a firearm at them and beating the
applicants’ dogs. Among the respondents, there are eight elderly people, some of
whom suffer from hypertension and diabetes. There is also a child -headed family of
4 children led by their 20 -year-old sibling. The respondents switched off the
electricity and water meters. They banned the residents in the area from walking in
groups of three or more.
groups of three or more.
[6] The applicants will suffer irreparable harm if the respondents continue with the
wrongful and unlawful activities. The applicants are low -income earners; they would
not be able to replace the property that the respondents are damaging . The
schoolchildren are preparing for their examinations. Some people had to be taken to
the hospital after the experience with the respondents. They have no other remedy.
On 17 October 2025, their legal representative phoned Mr Handi, the head of legal
services at the municipality and Mr Mdolomba in the deponent’s presence, enquiring
if the respondents obtained a court order to authorise the evictions. Mr Handi said
they did not. Mr Mdolomba declined the call.
[7] Concerning the balance of convenience, i t favoured the granting of the order
because the applicants had been violently taken out of their residences and the
respondents violated their well -being. The matter is urgent, the evictions started on
16 October 2025. The applicants attached a picture of household goods outside,
stating that it depicted their situation.
Applicants’ case: Zondani matter
[8] According to the 262 applicants in the Zondani matter, they have been staying
at Reeston for more than five years. From 16 October 2025, onwards, they were
being evicted by the third respondent, on the instructions of the first and second
respondent, without being authorised by the order of the court. Red Ants used
excessive force during the evictions. That was done without complying with the
provisions of the PIE Act. The eviction was arbitrary and grossly unreasonable.
Elderly people and children have been evicted. The main deponent lived with a
minor child, the eviction affected the said child negatively and caused the child
physical and mental harm. All affected children were unable to attend school, and
there is a risk that they may not be able to complete their final examinations. They
cannot eat or bathe. The court, as the minor guardian of all minors, must consider
the best interests of the children. The respondents have not offered them alternative
accommodation, emergency housing, or temporary housing. There has been no
attempt at mediation. Th e respondents acted malafides, they ran away from their
duty to identify the applicants’ needs.
Respondents’ case
[9] According to the respondents, the applicants never resided in the area in
[9] According to the respondents, the applicants never resided in the area in
question. In 2020, the department contracted Uphahla Constructio n (Pty) Ltd for the
construction of 840 low -cost houses. The project was to be finalised in March 2020,
but due to the conduct of the applicants and others, the contractor is still on site.
There was an approved list of intended beneficiaries, who had met the department’s
means test selection criteria. In 2020, the applicants and others sought to forcefully
invade and occupy the partially completed houses.
[10] The department had to seek an urgent interim interdict against the above -
stated interference. In March 2022, the interdict was confirmed. The service of the
final order was made to various respondents personally or by placing the order in the
most conspicuous places inside the construction site. The department has been,
through the court order, in charge of the project until 14 October 2025, when a report
was received indicating that the applicants had started to behave in the same
manner prohibited in the urgent interim and final orders. The department, the
municipality and Red Ant arranged that the final order be executed on 16 October
2025.
[11] The occupancy certificates are a mandatory requirement in terms of section
14(4)(a) of the National Building Regulations and Building Standards Act 103 of
1977. Before the occupation of completed houses, the municipality must inspect and
issue certificates certifying the structure, stormwater, gas installation, soil poisoning,
electrical and plumbing compliance. None of the applicants has been issued with
those certificates. The area is not safe; construction is still ongoing, and safety wear
is compulsory.
[12] The respondents deny any acts of violence, according to the deponent, he
saw the applicants resisting the execution of the final order. They had not yet
settled, they were still moving in. The service s of Red Ant were procured to assist in
the execution of the court order. The final order permitted the sheriff to seek the
assistance of members of the South African Police Service, if needed. That would
not be achieved solely with the help of the police. Noteworthy, the order omitted the
word ‘police’, which seems to have been an error, but it is correctly stated in the
affidavit.
affidavit.
[13] Regarding irreparable harm, no harm would be suffered if they accepted the
offer for an alternate remedy. The balance of convenience also does not favour the
granting of the order. The approved beneficiaries would have to wait for a long time
to be allocated houses. The project would be delayed further, and the contractor’s
costs would escalate. There is no provision for su ch in the department. The
applicants have not established the application of the provisions of the PIE Act.
Issues for determination
[14] The issue that required determination was whether the applicants had made a
case for the granting of an interdict, wh ether they had established the application of
the provisions of the PIE Act, and whether they had been in occupation of the
houses and proved the requirements of mandament van spolie.
Analysis
[15] Regarding the authority of the head of the department to depose to the
answering affidavit, in Ganes and Another v Telecom Namibia Limited 1, Streicher JA
said the following:
“[19] The deponent to an affidavit in motion proceedings need not be authorised by the party
concerned to depose to the affidavit. It is the institution of the proceedings and the
prosecution thereof which must be authorised. In the present case the proceedings were
instituted and prosecuted by a firm of attorneys purporting to act on behalf of the
respondent… It must, therefore, be accepted that the institution of the proceedings were duly
authorised.”
[16] When the matter was heard, all the papers had been filed. Above that, there
was no return date in the Wittbooi matter, all the issues were fully ventilated.
However, even if the matter was approached based on its presentation for interim
relief, the applicants still had to meet the requirements for interim interdict. In
National Council of Societies for Prevention of Cruelty to Animals v Openshaw 2 the
court stated:
1 [2004] 2 All SA 609 (SCA).
2 National Council of Societies for Prevention of Cruelty to Animals v Openshaw (462/07) [2008]
ZASCA 78; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008).
“[20] An interdict is not a remedy for past invasion of rights but is concerned with present or
future infringements. It is appropriate only when future injury is feared. 5 Where a wrongful
act giving rise to the injury has already occurred, it must be of a continuing nature or there
must be a reasonable apprehension that it will be repeated. The requisites for the right to
claim an interim interdict are:6
(a) A prima facie right. What is required is proof of facts that establish the existence of a right
in terms of substantive law;
(b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and
the ultimate relief is eventually granted;
(c) The balance of convenience favours the granting of an interim interdict;
(d) The applicant has no other satisfactory remedy’ (footnotes omitted)”.
[17] In Spur Steak Ranches LTD v Saddles Steak Ranch 3 the court confirmed that
these requirements must be considered together to decide whether the Court should
exercise its discretion in favour of granting interim relief. The prospects of success in
the main application also influence whether interim relief should be granted. This will
tip the balance in determining the overall balance of convenience.
[18] Regarding prima facie right, proof of facts for purposes of interim relief is to
the effect that the right can be prima facie established, even if it is o pen to some
doubt. In an application for interim relief, acceptance of the applicant’s allegations is
not sufficient, in the same way, the weighing up of probabilities of conflicting versions
is not required. The proper approach is as follows: -
(i) to c onsider the facts as set out by the applicant together with any undisputed
facts set out by the respondents;
(ii) to decide whether, concerning the inherent probabilities and the ultimate onus,
the applicant could on those facts obtain final relief; and
3 Spur Steak Ranches LTD v Saddles Steak Ranch 1996 (3) SA 706 at 714 – B - H.
(iii) to consider then the facts set up in contradiction by the respondents, and if they
raise significant doubt on the applicant’s case, the interim relief cannot be granted.
[19] The existence of an interdict against interference with unrolling the
department’s plan to build low -cost houses and later allocate them to identified
beneficiaries is not in dispute. The applicants said that the said order did not apply to
them, their names do not appear in the order. The undisputed evidence of the
respondents is that the order was served by placing it in conspicuous places on the
site. The order was also obtained against all people unlawfully occupying the units in
the housing project. In their own version, they were in the area when the order was
obtained. The y are not in the list of the approved beneficiaries. Any attempt to
occupy the houses violates the interdict. The respondents would then be entitled to
effect the order against them. The respondents’ evidence contradicting theirs, stating
that the occupati on was interdicted and successfully stopped, raises serious doubt
regarding their occupation and subsequent eviction.
[20] Regarding the substance of the application for interdict, the applicants, in their
version, have already been removed from the units. They alleged assault and
damage to their property, among others. However, there is no allegation of a threat
of future conduct. According to the principle in National Council of Societies for
Prevention of Cruelty to Animals, supra, the interdict is not available to them.
[21] Regarding the absence of alternative relief, the respondents stated that they
had tendered alternative accommodation. The tender was still available. According to
the applicants, they would have been willing to hear the respondents i n that regard,
but they denied that the tender had been made. During the hearing, it was a fact that
such a tender was on the table. In that light, there is an alternate remedy for all the
such a tender was on the table. In that light, there is an alternate remedy for all the
applicants that would meet the set criteria, including the children and the elderly.
[22] The occupation is also central in determining whether the applicants were in
peaceful and undisturbed possession of the property, a requirement for a final relief
based on an action for spoliation. In such cases, the approach to fact ual disputes is
governed by the principle set out in Plascon Evans Paints Ltd v Van Riebeeck Paint
(Pty) Ltd 4. A court should grant the applicant’s final relief if the facts presented by
the respondent, when read with the facts admitted by the applicant , justify the order.
That would be so in instances where the denial by the respondent of the fact alleged
by the applicant may not be such as to raise a real, genuine, or bona fide dispute of
fact as well. Alternatively, the denials are so far -fetched or clearly untenable that the
court is justified in rejecting them merely on the papers.
[23] It is trite that for the applicants to succeed in a spoliation application, they
must prove that they were in peaceful and undisturbed possession and the
respondents wrongfully dispossessed them. Their version is that they were in the
premises, at least, when the final order referred to by the respondents was obtained.
The respondents' version is that the occupation was intercepted successfully. In that
case, when the court order had always interdicted them from occupying the units, it
cannot be that they were in peaceful and undisturbed possession of the units. There
is a dispute regarding whether they indeed were in possession of the units.
[24] The issue of possess ion also ties in with whether the provisions of PIE Act
apply in the applicants’ circumstances. According to the respondent, the department
was always in charge of the premises, armed with the court order. When a decision
was taken to effect the court orde r and that process was embarked on, the
applicants were still in the process of taking occupation. They had not settled, nor
was their possession complete. Upon applying the Plascon Evans principle, the
applicant failed to satisfy the requirements of mandamus van spolie and that the
provisions of the PIE Act are applicable.
[25] Finally, reasons are also provided as to why the application for leave to file a
supplementary affidavit with the evidence of footage contained on a USB in the
Wittbooi matter was unsuccessful. No explanation was tendered in the affidavit as to
Wittbooi matter was unsuccessful. No explanation was tendered in the affidavit as to
why the said application was made at that late stage. The court had no basis to
consider the said application.
___________________
4 Plascon Evans Paints Ltd v Van Riebeeck Paint (Pty) Ltd 1984 (3) SA 620 at 634H to 635.
B. MAJIKI
JUDGE OF THE HIGH COURT
Appearing for the applicants:
Case No: 2025-1999871 Mr Toni
Instructed by: Mandla Attorneys
Office No. 2B
Chess Galleria Building
20 Devereux Avenue
East London
mandla@mandlaattorneys.co.za
043 721 3198
Case No: 2025-200031 Mr Klaas
Instructed by: Sipho Klaas Inc
26 North Street
East London
Siphoklaas05@gmail.com
043 0085003
Appearing for the respondents: Adv. A.M. Bodlani SC with Adv Mayekiso
Instructed by: State Attorney
17 Fleet Street
Old Spoornet Building
Ground Floor
East London
Date heard: 31 October 2025
Reasons for judgment delivered: 06 November 2025