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IN THE LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
Case number: LanC 117/2025
Before: The Honourable Acting Judge Montzinger
Hearing: 27 August 2025
Delivered: 27 November 2025
In the matter between:
MONA GLEN FARMING (PTY) LTD Applicant
and
AYANDA NZIMANDE First Respondent
THULAWAZI JOHANNES NZIMANDE Second Respondent
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER
JUDGES: Yes☐ / No ☒
Date: 27 November 2025
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FELUMUSA NZIMANDE Third Respondent
PETRUS THANDAZANI KUNENE Fourth Respondent
______________________________________________________________
Summary: Interim Interdict involving ESTA occupiers and their Zulu cultural
rights involving a structure they regard as their uMsamo (an ancestral shrine) –
Demolition and reconstruction of rondavel structure without the owner’s consent
– Meaningful engagement – Self-help – requirements for an interim interdict –
Just and equitable remedy – Moulding of the terms of the interdict to preserve
cultural practices.
ORDER
1. The rule nisi issued on 5 August 2025 is confirmed and an interim
interdict is therefore issued in the following terms:
1.1. An amendment of the notice of motion is grant ed and the names
of the second to fourth respondents are substituted with their
correct names as they appear on the face of the issued order.
1.2. The first to the fourth respondents (“the respondents”) be and are
interdicted and restrained from effecting alterations to any of the
structures depicted on annexure “A”, attached to this order, or
from constructing a new structure in the area where the structures
depicted in annexure “A” are situated, on the farm Mona Glen,
Richmond, KwaZulu-Natal.
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1.3. The respondents are further interdicted from taking any of the
actions in paragraph 1.2 either directly or indirectly and/or
personally and/or through third parties, not joined in these
proceedings.
1.4. The respondents be and are interdicted and restrained from
taking occupation of any of the structures depicted on annexure
“A” situated on the farm Mona Glen.
1.5. The provisions of paragraph 1.4 of this order shall not operate as
an eviction order and shall not apply to the third respondent, who
claims to currently occupy one of the existing structures depicted
on annexure “A”.
2. The interim interdict granted in paragraphs 1.2 – 1.4 above, shall operate
pending the finalisation of an action or application to be instituted by the
applicant for a declaration of rights and any related relief arising from the
issues in dispute. The applicant shall institute such proceedings within
14 (fourteen) days from the date of this order, failing which the interim
interdict shall lapse and be of no further force or effect.
3. It is further ordered that:
3.1. In the event that the respondents, or any other members of the
Nzimande family, require to undertake any further cultural
ceremonies in respect of the uMsamo at the Sikhwama
Nzimande homestead as depicted on annexure “A”, or in respect
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of any of the structures depicted, prior to the finalisation of the
future proceedings to be instituted by the applicant, the following
procedures shall apply and be followed by them:
(i) Written reasonable notice of such intended ceremony,
inclusive of the reasons therefore and the nature of the
ceremony shall be given to the applicant , by handing it to
Mr Greg Walsh or emailing it to the attorneys of the
applicant at the address specified in the notice of motion.
(ii) The applicant shall, within a reasonable time and as
circumstances permit, indicate its consent or refusal
thereof.
(iii) In the event of refusal, the respondents shall then
approach this Honourable Court for appropriate relief, with
proper notice to the applicant prior to request an order or
appropriate relief from the Court prior to undertaking any
such ceremony.
4. All issues of costs are reserved for determination by the court hearing
the future proceedings referred to above.
JUDGMENT
Montzinger AJ:
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Introduction
[1] This matter concerns an application by Mona Glen Farming (Pty) Ltd (“the
applicant”), the registered owner of the farming enterprise known as Mona Glen,
situated near Richmond in KwaZulu-Natal, for interdictory relief against the first
to fourth respondents who are all members of the Nzimande family. According to
the applicant, the respondents are long-standing residents on the farm and, on
the applicant’s version, are at least “occupiers” as contemplated in ESTA
1.
[2] The application was launched on 31 July 2025 as an urgent application. In the
notice of motion the applicant sought a rule nisi calling upon the respondents to
show cause why, pending the finalisation of an action for a declaration of rights
and related relief, they should not be interdicted from: (a) effecting alterations to
existing structures, or constructing any new structure, and (b) taking occupation
of any of the existing structures previously occupied by a Mr Senzo Calvin
Nzimande (“Senzo”)
2.
[3] On 5 August 2025, after perusing only the founding papers, Cowen DJP
issued directions in terms of rule 34(3)(b)
3. Having been satisfied that the
allegations, if established, may render the matter urgent, the Court granted
prayers 2.1 and 2.2 of the notice of motion ex parte as an interim order in the
form of a rule nisi, pending the hearing set down for 27 August 2025. The
directions also regulated the filing of answering and replying affidavits and heads
of argument.
1 Extension of Security of Tenure Act 62 of 1997.
2 Who is not joined as a respondent.
3 Land Court rules.
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[4] The answering affidavit is deposed to by Mr F Nzimande, the third respondent.
He avers that he is an occupier residing at Mona Glen and that he is duly
authorised to depose to the affidavit on his own behalf as well as the fourth
respondent, who filed a confirmatory affidavit. The first and second respondents
did not oppose the application or depose to answering or confirmatory affidavits.
Where reference is made further in this judgment to the “respondents”, it means
the third and fourth respondents. Where reference is made to the first to fourth
respondents, I will make use of the identifier the “Nzimande family”.
[5] The first to fourth respondents’ names were incorrectly cited. The notice of
motion refers to the third respondent as Botwa Nzimande and the fourth
respondent as Mvigelwa Nzimande, while in the answering affidavit, the third
respondent identified himself as Felumusa Nzimande and the fourth respondent
as Petrus Thandazani Kunene. There is, however, no dispute that the third and
fourth respondents are the individuals contemplated by the applicant in the notice
of motion. I therefore granted an amendment in the form of a substitution to reflect
the correct names
4.
[6] The dispute centres on a cluster of rondavel-type structures on a portion of
the Mona Glen farm referred to by both sides as the “Sikhwama homestead”
5. On
the applicant’s version, those structures were erected by Senzo, son of the late
Mr Sikhwama Nzimande. Senzo and his immediate family resided at the
homestead until, in June 2023, he concluded a written settlement with the
4 The second respondent is substituted with Thulawazi Johannes Nzimande (also known as Saad
Nzimande). The third respondent is substituted with Felumusa Nzimande (also known as Botwa
Nzimande). The fourth respondent is substituted with Petrus Thandazani Kunene (also known as
Mvigelwa Nzimande).
5 Identified on annexure B to the notice of motion as the “Senzo Nzimande structures”
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applicant in terms of which he agreed to vacate the farm with his family against
payment of R25 000 and the right to all building materials from his then residence.
The settlement agreement, on which the applicant relies, records, in effect, that
once Senzo and those occupying through him had vacated, the structures could
be demolished and the materials removed.
[7] The applicant further alleges that following separate protection order
proceedings in 2023, brought at the instance of certain members of the Nzimande
family, it undertook not to demolish Senzo’s former structures without a court
order. The interim protection order was thereafter withdrawn on that basis.
According to the applicant, Senzo’s homestead has stood vacant and unused
since his departure, in 2023, with no lawful occupant, and it was intended that the
unused structures be demolished.
[8] The respondents present a materially different picture. In the answering
affidavit the third respondent states that, after Senzo’s imprisonment in 2018 for
the death of his father, a family decision was taken that he (the third respondent)
should move from the main Nzimande family homestead, also on the Mona Glen
farm, to the Sikhwama homestead as the male figure in that household. The third
respondent claims to have resided there anyway permanently since about 2018,
and says that other family members, particularly two daughters of the late
Sikhwama, visit frequently and stay over on weekends and holidays. The
Sikhwama homestead, he says, includes a structure used as the uMsamo
6, a
6 uMsamo in Zulu culture is a sacred ancestral shrine or altar within the homestead that functions
as the primary point of contact between the living family and its ancestors (amadlozi/amathongo).
It is both a physical space and a spiritual institution around which many Zulu domestic, ritual, and
moral practices are organised.
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sacred space for communication with the ancestors , which is central to the
spiritual and cultural life of that branch of the family.
[9] The respondents recount that a major hailstorm in November 2024 damaged
the uMsamo structure. They say that, after temporary repairs and continued use
for rituals, a traditional healer advised in July 2025 , following a serious illness of
a grandchild, that the uMsamo had to be rebuilt urgently in more durable materials
to restore spiritual harmony. The family resolved to rebuild the fallen structure.
They assert that the demolition of the damaged rondavel on 29 July 2025 was an
integral part of that rebuilding exercise and not the construction of a “new”
homestead.
[10] A further area of sharp dispute is the extent to which the parties have
engaged with each other and whether the Nzimande family
7 has consent to affect
any construction. The applicant states that, after observing persons cleaning
around Senzo’s vacant structures from about 21 July 2025, it caused a letter,
dated 22 July 2025, to be delivered only to the first respondent. In that letter only
the first respondent was reminded that the buildings formed part of the applicant’s
property, and he was warned not to take occupation or interfere with the
structures. An undertaking was demanded not to do so, failing which urgent
interdict proceedings would be instituted.
[11] On 25 July 2025 the second respondent apparently sent a WhatsApp
message advising the applicant that the brothers intended to hold a cultural
function in December 2025 at the “Sikhwama” residence and to “sort out” the
7 This presumably includes the first to fourth respondents
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large rondavel which had been damaged by hail. Mr Walsh , on behalf of the
applicant, replied the same day, thanking the second respondent for the
information but expressly stating that no permission was given for repairs, that no
one was allowed to work on the structures, and that any cultural function had to
take place where the family was currently living.
[12] The applicant alleges that, notwithstanding this communication, and having
ceased activity briefly, the Nzimandi family thereafter resumed their activity of
construction of the damaged structures at the Sikhwama homestead. On 28 July
2025 people again cleaned the area and on 29 July 2025 one of the structures
was in the process of being demolished. On 30 July 2025 building materials were
delivered to the site. This prompted the urgent application of 31 July 2025. After
the Court issued directions and an interim order, the applicant presented
evidence, in a supplementary affidavit, that the Nzimande family persisted in
digging foundations and continue construction over the weekend of 2 – 3 August
2025, despite having been served with the application papers, the Court’s
directions and a further warning letter from its attorneys.
[13] The Nzimande family, for their part, characterise the 25 July 2025 WhatsApp
exchange as an attempt at “meaningful engagement” as contemplated in Daniels
v Scribante
8 and s 6(2)(dB)9 of ESTA. They say the applicant’s refusal of consent,
without any proposal of reasonable alternatives, did not extinguish their right as
occupiers to improve or re-erect an existing structure at their own cost to render
8 2017 (4) SA 341 (CC)
9 (2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and
balanced with the rights of the owner or person in charge, an occupier shall have the right-
(dB) to take reasonable measures to maintain the dwelling occupied by him or her or members of
his or her family
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it suitable for dignified occupation and for the exercise of their cultural and
religious practices. The family assert further that the demolition of the
hail-damaged rondavel and the intended rebuilding constituted precisely such an
improvement, that their actions were lawful, and that to restrain them would
unjustifiably infringe their constitutional rights to dignity, housing, culture, religion
and family life.
[14] A further dispute concerns the legal significance and reach of the 2023 deed
of settlement concluded between the applicant and Senzo. The applicant relies
on that agreement as the primary basis for its asserted right to demolish the
structures once Senzo and those occupying through him, at the Sikhwama
homestead, had vacated and says the Nzimande family are now unlawfully
frustrating that agreed outcome. The respondents, however, challenge both the
factual premise that the homestead was vacated and the legal premise that
Senzo could, in law or under isiZulu custom, waive or extinguish the rights of the
wider Nzimande family, particularly in respect of the uMsamo and the ancestral
homestead. They suggest that the applicant’s choice to contract with Senzo, and
not with the late Sikhwama’s eldest daughter or other elders, reflects a disregard
for women’s status in the family and for izithakazelo
10.
[15] Against this factual and cultural matrix, the applicant contends that it seeks
no more than temporary interdictory relief to preserve the status quo pending a
future action for a declaration of rights concerning, among others, (a) the
applicant’s entitlement to act in accordance with the deed of settlement, including
demolishing the structures and providing the materials to Senzo; (b) the
10 This is traditional Zulu term used to identify a person's clan, family history, and ancestral heroes.
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competing rights of Senzo and the Nzimande family in respect of the uMsamo at
the Sikhwama homestead; and (c) the continued occupation of the Sikhwama
homestead by the third respondent or other members of the Nzimande family.
[16] The respondents in turn maintain that the relief sought is, in substance, final
in effect, as it would enable the applicant to demolish the Sikhwama homestead
without any adjudication of their underlying rights, and that the applicant has not
met the requirements for the relief that they seek.
Issues to be determined
[17] In broad terms, the dispute on the return day raises both procedural and
substantive questions. For present purposes, the issues that arise on the papers
and argument may be formulated as follows:
(i) Whether the matter is urgent.
(ii) Whether, properly construed, the relief sought in prayers 2.1 and 2.2 of
the notice of motion is interim and preservatory, or whether, as the
respondents argue, it is final in substance and that the Court should
apply the test for a final interdict.
(iii) Depending on the proper characterisation of the relief, whether a case
has been made out for an interdict.
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(iv) Whether, on the application of ESTA, the Constitution and the principles
in Daniels v Scribante11 and related authorities, the respondents were
entitled, without an court order, to rebuild the hail-damaged structure at
the Sikhwama homestead as an uMsamo structure at their own cost,
notwithstanding the applicant’s refusal to grant consent; or whether
such conduct amounts to impermissible self-help that should be
restrained by an interim interdict.
[18] It is to these issues that the remainder of the judgment will turn.
Urgency
[19] As to urgency, the time-line is largely common cause. Following information
that the first respondent intended to take over vacant structures at the Sikhwama
homestead (previously occupied by Senzo and his family), the applicant’s
attorneys sent the warning letter of 22 July 2025. After that letter, activity ceased
briefly. On 25 July 2025 the second respondent’s WhatsApp message
foreshadowed repairs to the large rondavel at the Skhwama’s homestead for
cultural purposes, to which Mr Walsh immediately responded refusing consent
and recording that nobody was permitted to work on the houses. On 29 July 2025
one of the structures was in the process of being demolished and on 30 July
building materials were delivered. Furthermore, on 2 – 3 August 2025 foundations
were being dug and construction commenced, notwithstanding service of the
papers and a further letter. The founding affidavit was signed on 30 July 2025
11 8 supra
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and the application launched on 31 July 2025. In those circumstances I do not
accept that urgency is self-created or that the applicant could be afforded
substantial redress in the ordinary course.
The nature of the relief
[20] The respondents also assert that the relief is in substance final, that there is
no certainty that the contemplated declaration of rights action will ever be
instituted, and that the test for a final interdict must therefore be applied.
[21] Notwithstanding, how the relief is framed in the notice of motion, the Court
must assess the relief and determine whether the interdict would in effect be
temporary or final in nature. An interim interdict is a protective remedy designed
to preserve the status quo pending the final determination of the parties’ rights in
subsequent proceedings. The practical effect of an interim interdict is therefore
not to grant the applicant the relief ultimately sought, but to maintain the factual
and legal position so that the eventual adjudication of rights is not prejudiced by
irreversible developments or unlawful conduct in the interim.
[22] In this case the interdict does not authorise demolition of any structure . It
restrains further alterations, new construction and occupation of the structures at
the Sikhwama homestead pending the finalisation of court proceedings, that will
ultimately provide clarity on the parties’ rights in respect of the Sikhwama
homestead. I am satisfied that the effect of the relief, if granted as prayed for, is
preservatory rather than dispositive in nature. It puts the brakes on a dynamic
situation so that the parties’ competing proprietary, statutory and cultural rights
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can be adjudicated in due course. If the applicant were to default in instituting the
promised action, the interim order could not be left to subsist indefinitely and will
lapse. The test for interim interdicts is therefore applicable.
The legal framework governing interim interdicts
[23] The principles applicable to interim interdicts are well established. The
foundational requirements were articulated in Setlogelo
12 and have been
consistently affirmed and refined in later authorities, including Webster13 and
Gool14. Under our current constitutional dispensation, these principles continue
to govern the inquiry, albeit infused with constitutional values, as confirmed by
the Constitutional Court in National Treasury
15.
[24] A court considering whether to grant an interim interdict must consider four
requirements. The first is that the applicant must establish the existence of a
prima facie right, though open to some doubt. The right need not be proved on a
balance of probabilities . It is sufficient if the applicant places before the court
evidence which, if accepted, establishes a right deserving of protection pending
final determination.
[25] The second requirement is a well-grounded apprehension of irreparable
harm to the applicant if interim protection is not afforded. The apprehension must
be objectively reasonable. The question is whether a reasonable person in the
12 Setlogelo v Setlogelo 1914 AD 221
13 Webster v Mitchell 1948 (1) SA 1186 (W)
14 Gool v Minister of Justice 1955 (2) SA 682 (C)
15 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC)
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position of the applicant, confronted with the same facts, would foresee the
likelihood of harm that cannot adequately be remedied by an award of damages
or some other remedy at final determination. Harm is “irreparable” in this context
if waiting for final relief would leave the applicant in a position that cannot
meaningfully be restored.
[26] The third requirement concerns the balance of convenience. The court must
weigh the prejudice that the applicant will suffer if interim relief is refused against
the prejudice the respondent will suffer if the interdict is granted. This assessment
considers the relative strength of the parties’ cases as they appear on the papers.
The stronger the applicant’s prospects of final success, the less heavily the
balance must tip in its favour, and conversely
16. Where both sides invoke
constitutional rights, or where the respondent alleges that the interdict will
significantly impair its lawful interests, the balancing exercise must be undertaken
with particular care.
[27] The fourth requirement is the absence of a suitable alternative remedy . An
interim interdict is an extraordinary remedy and should not be granted where
other adequate remedies , whether judicial or otherwise , exist to protect the
applicant’s rights. The availability of other remedies is relevant to this inquiry.
[28] Ultimately, even where all four requirements appear to be met, the court
retains a judicial discretion whether to grant the interdict. This discretion is not
unbounded. If an applicant fails to establish at least one of the requirements, the
court has no discretion and relief should be refused. But where they are satisfied,
16 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D)
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the court must consider all relevant circumstances to determine whether the
interdict sought is just and equitable. The requirements must not be applied
mechanically; they are interrelated and must be assessed holistically in the light
of the evidence as a whole.
Evaluation
A Clear or prima facie right
[29] On the applicant’s version, which must be taken together with such parts of
the respondents’ version as are not genuinely disputed, the applicant has at
minimum, a prima facie right deserving of interim protection. As registered owner
of the farm, it holds constitutionally protected property rights under s 25 of the
Constitution, including the right not to be arbitrarily deprived of control over the
construction of structures and occupation on its land. The rights on which the
applicant relies are in fact, clear rights.
[30] The respondents, for their part, rely on s 6 of ESTA and the rights to dignity,
housing, culture and religion as per the Constitution. That these are important
rights is beyond dispute. Daniels v Scribante
17 confirms that ESTA occupiers
may, at their own cost, effect improvements reasonably necessary to bring their
homes to a standard consistent with human dignity.
[31] Daniels v Scribante does not, however, clothe occupiers with a free-standing
entitlement to ignore procedures and resort to self-help. The judgment rather
17 Daniels v Scribante - paras 13 - 58
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emphasises meaningful engagement between occupier and owner 18 before
taking action and warns that where engagement results in a stalemate the dispute
must be resolved by a court and that the occupier cannot resort to self-help19.
[32] I do not need, at this interim stage, to pronounce finally on the validity and
effect of the June 2023 deed of settlement the applicant concluded with Senzo,
or on the intricate questions of isiZulu custom and succession within the
Sikhwama line. Those issues will properly be ventilated in the declaratory
proceedings that will presumably follow. What matters now is that the applicant
has shown rights, proprietary, contractual and procedural , which are seriously
asserted, and not frivolous, and which may well be upheld when all the evidence
is presented.
Injury and apprehension of harm
[33] The applicant complains of both actual and apprehended injury. The
demolition of one of Senzo’s structures has already occurred. Construction of a
new brick-and-pole structure on the same site began after service of the
application papers and the court’s directions and continued even after the rule
nisi order was issued. On any view this alters the factual and legal landscape as
a new or reconstructed structure, particularly if occupied, may generate additional
ESTA or entitlements that did not exist when Senzo occupied the structures of
the homestead. The applicant is entitled to be concerned that, if the process runs
18 Daniels v Scribante - paras 62 - 64
19 Daniels v Scribante - par 65
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its course unchecked, it will face a far more complex and costly eviction or dispute
in the future.
[34] The respondents say there is no harm because they seek merely to rebuild
an existing uMsamo structure, not to expand the footprint, and because the real
harm would be the applicant’s envisaged demolition of the Sikhwama homestead.
That mischaracterises the nature of the relief sought. The applicant is not asking
for permission to demolish the Sikhwama homestead. It seeks only to prevent
further unilateral demolition and building, and to prevent occupation of structures
that were always vacant, pending a court’s determination of who may lawfully do
what. If the respondents are ultimately vindicated, a properly authorised
rebuilding or construction can occur. If the applicant is vindicated, allowing the
construction to continue would result in an irreversible situation. The
apprehended harm to the applicant is therefore real and not speculative.
Alternative remedy and self-help
[35] The respondents contend that the applicant had alternatives: the parties
could have attempted further engagement, a court application in the normal
course, or reliance on criminal or ESTA remedies. That submission overlooks
both the conduct actually adopted and the constitutional injunction against self-
help on either side. The applicant did not respond with counter-self-help (for
example by demolishing the structures itself), but rather approached this Court.
The SAPS has on the evidence, been either conflicted (given the second
respondent’s employment there) or unwilling to intervene in the dispute. A
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damages action would not prevent the accrual of unwanted rights or undo the
construction. Further for the applicant to wait for an outcome of future
proceedings while building and occupation at the Sikhwama homestead continue
would, in the interim, allow what the applicant contends is unconstitutional
conduct that will continue unchecked.
[36] Conversely, if the respondents were of the view that the applicant’s refusal
of consent was unreasonable and that their uMsamo could lawfully be rebuilt
notwithstanding such refusal, Daniels v Scribante requires them to use judicial
recourse by approaching a court , not by unilaterally demolishing and rebuilding
the structure on the basis of a short inconclusive WhatsApp exchange.
Balance of convenience and weighing of rights
[37] The remaining question is where the balance of convenience lies, given the
serious constitutional and cultural interests engaged on both sides. On the one
hand, the respondents emphasise the centrality of the Sikhwama homestead
uMsamo to the spiritual life of that branch of the Nzimande family, and the spiritual
leader’s instruction that the fallen uMsamo be rebuilt urgently in more durable
materials following the child’s illness. On the other, the applicant emphasises its
property and safety concerns, the history of conflict between the parties, and the
risks of allowing building to proceed in defiance of express instructions and
without a court order.
[38] In my view the decisive consideration is not which side’s rights are weightier
in the abstract, that is for the main case, but which course better preserves the
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possibility of a just and orderly determination in due course. To allow construction
and new occupation of the structures to take place would effectively reward a
form of self-help, and risk embroiling the parties (and this Court) in further urgent
skirmishes. To restrain further work and possible occupation, by contrast, does
not extinguish the respondents’ religious or cultural claims.
[39] I am mindful that interim restraint may be experienced by the respondents as
a serious interference with their ability to tend to the uMsamo in the manner they
believe necessary. That is why any order must be narrowly tailored. It should not
prohibit all ritual activity or access to the homestead. Within those limits, the
respondents remain free to hold ceremonies and to utilise existing spaces,
provided they do not contravene the clear terms of this Court’s order.
[40] Weighing the competing prejudice in this way, I am satisfied that the balance
of convenience favours maintaining the status quo rather than allowing the
respondents’ building project and future occupation to proceed. The third
respondent claims to be in occupation of one of the structures at the Sikhwama
homestead, while the applicant disputes that claim. It is not possible to resolve
this issue on the papers, so the safe approach is to accept for purposes of this
matter that the third respondent does reside in one of the structures at the
Sikhwama homestead, but that no one else is allowed to take occupation of any
of the structures until the anticipated court proceedings are finalised or until such
time that the interim order may lapse.
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A just and equitable order
[41] On the papers there is no real dispute that what the Nzimande family has
identified as the uMsamo structure is regarded by them as their ancestral shrine
or altar and that it functions as the primary point of contact between the living and
their ancestors. The family’s evidence that rituals are conducted there, including
prayers, offerings and the burning of impepho
20 and that these are central to the
spiritual life and governance of the family was not challenged. The applicant
cannot dispute the depth of the family’s cultural and religious beliefs, and to some
extend recognises them, although it has a different perspective in how it
practically works out in respect of the Nzimande family. The Court accepts both
the sincerity and the gravity of the Nzimande family’s concern that a compromised
uMsamo is believed to have consequences not only for the descendants of the
late Mr Sikhwama, but for the broader Nzimande lineage.
[42] These beliefs and practices fall squarely within the protective ambit of the
Constitution: the rights to dignity (s 10), freedom of religion (s 15), language and
culture (s 30), and the rights of cultural, religious and linguistic communities (s
31). ESTA itself requires that occupiers’ rights be exercised with due regard to
their human dignity and family life, and that a just and equitable balance be struck
between occupiers’ rights and those of the owner. The Constitutional Court in
Hattingh v Juta
21 emphasised that ESTA “enjoins that a just and equitable
balance be struck” between these competing interests, infusing the inquiry with
justice and equity. Daniels v Scribante likewise recognises that the rights
20 a sacred herb burned as a spiritual incense to communicate with ancestors, cleanse negative
energy, and purify spaces
21 Hattingh and Others v Juta (CCT 50/12) [2013] ZACC 5; 2013 (3) SA 275 (CC); 2013 (5)
BCLR 509 (CC) (14 March 2013) – par 32
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conferred by ESTA must be interpreted generously in the light of constitutional
values22, while at the same time insisting that the rights of the owner are not
rendered nugatory23.
[43] In this context, the parties were invited in argument to address a possible
form of order which, while upholding the interim interdict that it would not have
the effect of functionally extinguishing the Nzimande family’s ability to tend to the
uMsamo and to perform rituals there pending the envisaged declaratory
proceedings, to the extent that they can conduct such rituals in a damaged
structure. In response to the court’s query the applicant proposed an order in
terms of which the Nzimande family would be required to give three months’
written notice, with reasons, of any intended ceremony at the uMsamo, to which
the applicant would respond within ten days, failing which the respondents could
approach a court for appropriate relief. In response the respondents objected that
a three-month lead time is excessive and would render their rights illusory, and
that a requirement to furnish “reasons” is inconsistent with the nature of a
constitutionally protected cultural practice
24.
[44] The starting point is that, in deciding whether to confirm an interim interdict,
the Court is not engaged in a mechanical “all-or-nothing” exercise. An interdict is,
by its nature, an equitable remedy; even where the jurisdictional requirements
are met, the grant and the terms of the order remain a matter of judicial discretion.
The classic formulation in Setlogelo has repeatedly been applied subject to this
22 Daniels v Scribante - par 13 - 58
23 Daniels v Scribante - par 61
24 I point out the exchange regarding a proposed order was raised during argument. The
applicant’s counsel then prepared a draft order to which the respondents’ counsel responded with
instruction. The information surrounding the parties’ exchange on the proposed order was not
instruction. The information surrounding the parties’ exchange on the proposed order was not
placed before the court under oath, but I was presented with the information without any objection.
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understanding. The Constitutional Court has stressed, in various contexts, that
courts are required to “mould” remedies that are just and equitable in the light of
all the circumstances, particularly where constitutional rights on both sides are
implicated. In Port Elizabeth Municipality
25 the Court made it clear that, in land-
related disputes (although in the context of PIE), the court “is called upon to go
beyond its normal functions and to engage in active judicial management”26. This
certainly includes the process, crafting just and equitable orders even if those
precise forms of relief were not clearly spelled out in the pleadings. Such an
approach is now well-established in eviction and land-tenure matters, and
underpins the characterisation of this Court as, in effect, a court of equity
27.
[45] It follows, in my view, that there is a sound legal basis for this Court, having
found that an interim interdict is in principle justified, to refine and qualify that
interdict so as to minimise unnecessary impairment of the respondents’
constitutionally protected cultural and religious practices. In my view this is
properly located under the “balance of convenience” leg of the interim-interdict
and in the Court’s overarching equitable discretion. The applicant has
demonstrated a prima facie right and reasonable apprehension of harm if
unilateral construction works and new occupation are allowed to proceed. But the
respondents have likewise shown that a blanket prohibition on any use of the
uMsamo would impose a significant, possibly irreparable, spiritual and cultural
burden. A just and equitable balance requires that the interim order be drawn in
25 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217
(CC); 2004 (12) BCLR 1268 (CC) (1 October 2004)
26 par 36
27 See preamble to the Land Court Act, 6 of 2023
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a way that protects the applicant from the harm it fears, without doing more
collateral damage to the respondents’ rights than is strictly necessary.
[46] As regards the proposed process for the parties to engage to use the
uMsamo I accept the respondents’ criticism that a blanket three-month notice
period is excessive. Many rituals arise in response to recent events and are not
scheduled in advance. A three-month lead time risks rendering their rights to
practice culture and religion effectively hollow. At the same time, the applicant is
entitled to reasonable prior notice of any intended activity, with sufficient detail to
obtain advice, and a fair opportunity to engage or to seek urgent relief if
necessary. In my view, written reasonable notice is required if any spiritual ritual
is necessary to be held. The reasonableness of the notice will depend on the
circumstances of the situation. The notice should contain the reasons therefore
and the applicant should respond as soon as reasonably practical.
[45] Properly understood, the interim interdict does not grant or confer a veto
power upon the applicant over the exercise of the Nzimande family’s right to
attend at and use the uMsamo for rituals, to the extent, as previously stated, that
the Nzimande family still intend to do so, considering the damaged status the
structure is in.
[46] The general position is that a court may not grant relief not asked for or
decide issues not presented to it for decision
28. However, the true rule is that a
court may not, in motion proceedings, grant relief that is both outside the case
made on the papers and prejudicial to a party who has had no opportunity to deal
28 Fischer and Another v Ramahlele and Others (203/2014) [2014] ZASCA 88; 2014 (4) SA 614
(SCA); [2014] 3 All SA 395 (SCA) (4 June 2014)
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with it. Where, as here, the factual and legal issues underpinning the relief are
squarely raised on the affidavits; where both parties were invited to address the
proposed order; and where the order fashioned does not introduce a new cause
of action but merely tailors the interdict to give effect to constitutional and statutory
rights relied on by both sides, our law recognises that a court may and indeed
should “mould” the order to do justice between the parties. This is consonant with
the “just and equitable” standard that governs remedies in land-rights matters,
and with the general principle that in constitutional litigation courts have a wide
discretion to craft appropriate relief that effectively vindicates rights while
respecting the interests of all concerned.
Conclusion and order
[47] Evaluated holistically, the applicant has satisfied all four requirements for
interim relief. There is therefore no residual discretion to refuse relief, save in
respect of the precise manner in which the order is formulated. The Court’s
remedial discretion is invoked not to deny the interdict but to mould its terms ,
consistent with the approach endorsed in Fose v Minister of Safety and
Security
29, so that it vindicates the applicant’s rights while preventing undue or
unnecessary infringement of the Nzimande family’s cultural and religious
practices.
[48] For these reasons the following order is made:
29 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997
(3) SA 786 (5 June 1997) – par 99 - 101
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1. The rule nisi issued on 5 August 2025 is confirmed and an interim interdict
is therefore issued in the following terms:
1.1 An amendment of the notice of motion is granted and the names
of the second to fourth respondents are substituted with their
correct names as they appear on the face of the issued order.
1.2 The first to the fourth respondents (“the respondents”) be and are
interdicted and restrained from effecting alterations to any of the
structures depicted on annexure “A”, attached to this order, or
from constructing a new structure in the area where the structures
depicted in annexure “A” are situated, on the farm Mona Glen,
Richmond, KwaZulu-Natal.
1.3 The respondents are further interdicted from taking any of the
actions in paragraph 1.2 either directly or indirectly and/or
personally and/or through third parties, not joined in these
proceedings.
1.4 The respondents be and are interdicted and restrained from taking
occupation of any of the structures depicted on annexure “A”
situated on the farm Mona Glen.
1.5 The provisions of paragraph 1.4 of this order shall not operate as
an eviction order and shall not apply to the third respondent, who
claims to currently occupy one of the existing structures depicted
on annexure “A”.
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2. The interim interdict granted in paragraphs 1.2 – 1.4 above, shall operate
pending the finalisation of an action or application to be instituted by the
applicant for a declaration of rights and any related relief arising from the
issues in dispute. The applicant shall institute such proceedings within 14
(fourteen) days from the date of this order, failing which the interim
interdict shall lapse and be of no further force or effect.
3. It is further ordered that:
3.1 In the event that the respondents, or any other members of the
Nzimande family, require to undertake any further cultural
ceremonies in respect of the uMsamo at the Sikhwama Nzimande
homestead as depicted on annexure “A”, or in respect of any of
the structures depicted, prior to the finalisation of the future
proceedings to be instituted by the applicant, the following
procedures shall apply and be followed by them:
(i) Written reasonable notice of such intended ceremony,
inclusive of the reasons therefore and the nature of the
ceremony shall be given to the applicant, by handing it to Mr
Greg Walsh or emailing it to the attorneys of the applicant at
the address specified in the notice of motion.
(ii) The applicant shall, within a reasonable time and as
circumstances permit, indicate its consent or refusal thereof.
(iii) In the event of refusal, the respondents shall then approach
this Honourable Court for appropriate relief, with proper