Brief Summary

Land and Property Law — Right to occupy — Appeal against review application — First Respondent challenging the jurisdiction of Magistrate Usinga in rescinding the Phiri Interdict Order — Court finding that the First Respondent lacked standing to institute the review — Appeal upheld, restoring the Usinga Rescission Order and dismissing the review application with no order as to costs.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings concerned an appeal to the High Court of South Africa, Mpumalanga Division (Mbombela Main Seat), sitting as a full court (RATSHIBVUMO AJP, MAYET and NSIBANDE AJJ). The appeal was brought by Matsamo Mall (Pty) Ltd (the Appellant) against an order granted by the court a quo (Roelofse AJ) in review proceedings.

The principal respondent in the appeal was Buhle Buyeza Industrial Primary Cooperative Limited (the First Respondent). The Matsamo Tribal Authority was cited as the Second Respondent, together with several additional respondents (including office-bearers cited in a representative capacity, and other cooperative entities). The magistrate (Ms Usinga, Tonga) was also cited as a respondent in the review proceedings.

The litigation history, as accepted and recounted by the appeal court, was that a magistrates’ court interdict granted in 2016 (the Phiri Interdict Order) prohibited development activities on land where the Appellant was developing a shopping centre (Matsamo Mall). In 2021, the Appellant brought a rescission application in the magistrates’ court under section 36 of the Magistrates’ Courts Act 32 of 1944, resulting in a rescission order granted by Magistrate Usinga on 30 March 2021 (the Usinga Rescission Order), which set aside the Phiri Interdict Order.

Thereafter, the First Respondent (not the entity that had obtained the 2016 interdict) launched a review application in the High Court, challenging the Usinga Rescission Order. Although instituted in May 2021, the review lay dormant until judicial case management revived it in June 2023. On 3 September 2024, the court a quo set aside the Usinga Rescission Order, with the consequence that the Phiri Interdict Order was restored. The present appeal (with leave) was directed against that entire ex tempore judgment and order of the court a quo.

The general subject matter was the lawfulness and procedural propriety of rescinding an interdict that constrained development on communal/statutorily administered land, including questions concerning standing to institute review proceedings and the proper characterisation of the magistrate’s rescission reasoning (in particular, whether it impermissibly granted declaratory relief).

2. Material Facts

The appeal court located the dispute within a land administration framework in which the Matsamo Tribal Authority held statutory jurisdiction over land designated under Proclamation No. 1853 of 29 November 1957. The property on which Matsamo Mall was developed was identified as Portion 45 of the Farm Schoemansdal 581 JU, within the Second Respondent’s jurisdiction.

It was accepted as material that, in 1997, the Matsamo Tribal Authority granted a right to occupy the property to the Buhle Buyeza Farmers Association (the Seventeenth Respondent) for cultivating sugar cane, and that in 2006 this right was amended to allow operation of a fodder feed lot. The appeal court treated the identity of the holder of this right, and the requirements for any lawful transfer or substitution of the holder, as central to understanding whether the 2016 interdict had been competently sought and whether the 2021 rescission fell within section 36.

A disputed (and, on the appeal court’s account, unsupported) assertion was that the Farmers Association had been “converted” into the First Respondent cooperative and that the right to occupy was automatically transferred to that cooperative entity. The appeal court emphasised that registration under the Co-operatives Act 14 of 2005 created a new juristic entity and did not itself constitute a legally recognised conversion mechanism by which occupation rights vested in another body.

The record contained material confirmatory evidence from the Matsamo Tribal Authority that the right to occupy was granted exclusively to the Farmers Association for agricultural purposes and that it could not be transferred, assigned, or its purpose altered without prior written consent of the Tribal Authority. The record also included a Farmers Association resolution dated 12 February 2016, and supporting affidavit evidence from its chairperson, to the effect that the right to occupy was transferred back to the Matsamo Traditional Council in exchange for compensation by way of different land. The appeal court treated this as demonstrating that, on relinquishment, the right reverted to the Matsamo Tribal Authority.

As to the interdict proceedings, the appeal court accepted that on 16 November 2015 the Buhle Buyeza Agricultural Co-Operative (the Fifteenth Respondent) obtained an urgent rule nisi, and that on 7 June 2016 Magistrate Phiri granted a final interdict (the Phiri Interdict Order) which, among other things, preserved the agricultural designation, prohibited development activity, and permitted demolition of structures on the land. The appeal court treated it as material that the Fifteenth Respondent, not the First Respondent, was the litigant in whose favour the Phiri Interdict Order was granted.

Further material facts accepted by the appeal court included that the Appellant proceeded to obtain statutory land use rights and authorisations to develop a shopping centre and was said to have been unaware of the Phiri Interdict Order until October 2019, when municipal processes revealed it. The appeal court also recorded that the First Respondent’s attorney had, in 2018, asserted to authorities that the First Respondent was the rightful occupant, without mentioning the Phiri Interdict Order.

In relation to the rescission, the appeal court accepted that the Usinga Rescission Order was granted under section 36 on the basis (as reflected in Magistrate Usinga’s reasons) that the Phiri Interdict Order had been erroneously granted, including because the party who obtained it lacked standing and because of material non-joinder and statutory framework considerations. The appeal court treated as material that the rescission reasoning involved identifying who held the right to occupy, for the limited purpose of deciding whether the earlier interdict had been competently sought and granted.

Regarding the review, the appeal court accepted that the review was brought by the First Respondent (a different juristic entity from the Fifteenth Respondent), and that standing to bring that review was challenged. The appeal court treated as material that the court a quo did not meaningfully engage with that standing challenge.

Finally, at the appeal hearing, the First Respondent sought a postponement on financial grounds and lack of representation. The appeal court treated the litigation history, including asserted non-compliance with procedural requirements and a late withdrawal by attorneys, as relevant to whether the postponement should be granted and to the appropriate costs order on appeal.

3. Legal Issues

The appeal court identified two decisive questions for determination on the merits of the appeal.

The first was whether the court a quo was correct to uphold the review on the basis that the Usinga Rescission Order constituted impermissible declaratory relief beyond the magistrate’s court jurisdiction, such that it was reviewable and liable to be set aside. This issue required the appeal court to characterise the nature of the magistrate’s reasoning and to determine whether the magistrate’s findings were a final determination of rights (declaratory relief) or merely incidental findings necessary to decide a statutory rescission application. This was primarily a question of application of legal principles to the procedural character and content of the magistrate’s decision, rather than a re-determination of factual disputes.

The second central issue was whether the First Respondent had locus standi to institute the review proceedings at all, given that the 2016 interdict had been obtained by the Fifteenth Respondent, and the First Respondent had to show a legally cognisable, direct and substantial interest in the impugned rescission decision. This was treated as a jurisdictional prerequisite rather than a discretionary matter.

A further issue determined at the outset of the appeal was whether a postponement should be granted to the First Respondent in the light of its professed inability to fund representation. That issue involved an interests of justice assessment and evaluation of whether good cause had been shown, bearing in mind procedural compliance and the history of delay.

4. Court’s Reasoning

On the postponement application, the appeal court applied the principle that a postponement is not a right and must be justified by good cause, with the court retaining a discretion guided by the interests of justice. The First Respondent’s explanation was that it lacked funds and anticipated a donation within a few weeks, but the court considered that the asserted prospective funding was unsupported by detail as to its reliability. The court further considered the timing of the request (at the hearing) and the litigation history, including non-compliance with procedural requirements and the late withdrawal of the First Respondent’s attorney without heads of argument. The court concluded that the interests of justice required the appeal to proceed, and refused the postponement. It made no costs order on the postponement, reasoning that a costs order would be futile in light of the basis advanced for the postponement (inability to fund litigation).

On the merits of the appeal, the court situated Magistrate Usinga’s decision within the statutory power conferred by section 36 of the Magistrates’ Courts Act 32 of 1944, which permits rescission in defined circumstances, including where a judgment was void, obtained by fraud or mistake common to the parties, or otherwise erroneously granted, and where rescission is sought by a person affected thereby. The appeal court understood section 36 as serving a corrective function where a magistrates’ court order lacks legal foundation, was procedurally irregular, or was granted in ignorance of facts that would have precluded it.

The appeal court examined the reasons underpinning the Usinga Rescission Order and concluded that Magistrate Usinga confined her enquiry to whether the Phiri Interdict Order had been competently and lawfully granted. In doing so, she identified the holder of the right to occupy and considered locus standi and non-joinder, not in order to determine substantive land rights in the abstract, but to assess whether the party who obtained the interdict was entitled to do so and whether the order had been erroneously granted. The appeal court treated this as a legitimate step in the rescission enquiry because the correctness of the interdict depended on whether the applicant for that interdict had standing and whether all interested parties had been joined.

The court emphasised the conceptual distinction between declaratory relief (an order finally determining rights) and an incidental finding made for the purpose of deciding the relief properly before a court. It reasoned that the magistrate’s identification of the lawful holder of the right to occupy was incidental to deciding whether rescission was appropriate under section 36, and did not amount to an impermissible declarator. In the appeal court’s analysis, “much ink” had been spilt on declaratory relief, but that focus was misplaced because the functional nature of the inquiry showed the magistrate was correcting an erroneously granted interdict rather than purporting to issue a free-standing declaratory determination of land rights.

The appeal court further reasoned that the review application alleged gross procedural irregularities, but that none were identified in the rescission proceedings, found by the court a quo, or apparent from the record. It stressed that review jurisdiction is limited to cases of lack of jurisdiction, ultra vires conduct, or gross irregularity, and does not permit a reviewing court to interfere merely because it would have reached a different conclusion on the merits. On this approach, once the Usinga Rescission Order was correctly characterised as an exercise of statutory rescission power, the review grounds relied upon could not be sustained.

On standing, the appeal court treated locus standi as a substantive threshold requirement. It reasoned that the review was instituted by the First Respondent even though the Phiri Interdict Order had been obtained by the Fifteenth Respondent, and that the First Respondent did not demonstrate how it acquired a legal interest in the interdict or how it was aggrieved in a manner cognisable in review. Drawing on Constitutional Court authority, the appeal court reasoned that standing requires a real, direct and substantial interest, and that standing to institute review cannot be wider than standing to obtain or defend the relief in issue. It concluded that, given the finding that the lawful occupational right vested in the Farmers Association (and, on relinquishment, reverted to the Matsamo Tribal Authority), the First Respondent had not established standing to institute the review. The appeal court criticised the court a quo for not engaging meaningfully with this standing challenge despite it being raised.

In conclusion, the appeal court held that the court a quo’s approach—treating the Usinga Rescission Order as impermissible declaratory relief—ignored the magistrate’s reasons, the procedural identity of the matter as a section 36 rescission, the jurisdictional nature of standing, and the corrective purpose of rescission. It considered that the review should have been dismissed.

On costs, the appeal court differentiated between the appeal and the review. It held that, although the appeal succeeded, it was fair to make no costs order on appeal, having regard to the First Respondent’s inability to fund litigation and that the appeal was needed to correct an error of law. By contrast, it held that the costs of the review should follow the result, because the review failed on the merits.

5. Outcome and Relief

The appeal was upheld, and the appeal court made no order as to costs in the appeal.

The order of the court a quo was set aside and replaced with an order that the review application is dismissed with costs. The effect was that the court a quo’s setting aside of the Usinga Rescission Order was overturned, and the magistrate’s rescission of the Phiri Interdict Order was reinstated.

Cases Cited

National Coalition for Gay & Lesbian Equality & others v Minister of Home Affairs & others 1999 (3) SA 173 (C); 1999 (3) BCLR 280 (C)

The National Police Service Union & others v The Minister of Safety & Security & others 2000 (4) SA 1110 (CC); 2001 (8) BCLR 775 (CC)

Lion Match Company (Pty) Ltd v Commissioner, South African Revenue Service (1047/2023; 1067/2023) [2025] ZASCA 112; 2025 (6) SA 448 (SCA) (28 July 2025)

Ngcobo v Union & South West African Insurance Co Ltd 1964 (1) SA 42 (D)

Lekolwane & another v Minister of Justice & Constitutional Development [2006] JOL 18699 (CC)

Council for the Advancement of the South African Constitution and others v Ingonyama Trust and Others 2021 (8) BCLR 866 (KZP)

F & J Electrical CC v MEWUSA obo E Mashatola and Others [2015] ZACC 3

Tshabalala v Peer 1979 (4) SA 27 (T)

Gordon v Department of Health, Kwa-Zulu Natal 2008 (6) SA 522 (SCA)

Giant Concerts CC v Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC)

JDJ Properties CC and Another v Umngeni Local Municipality and Another (873/11) [2012] ZASCA 186; [2013] 1 All SA 306 (SCA); 2013 (2) SA 395 (SCA) (29 November 2012)

Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530

The Maize Board v Temple Albert Hart [2006] SCA 4 (RSA)

Legislation Cited

Magistrates’ Courts Act 32 of 1944 (section 36)

Co-operatives Act 14 of 2005

Interim Protection of Informal Land Rights Act 31 of 1996

Proclamation No. 1853 (promulgated on 29 November 1957)

Rules of Court Cited

The judgment referred generally to the Rules of Court and applicable Practice Directives, without identifying specific rule numbers.

Held

The High Court on appeal held that the court a quo erred in setting aside the magistrate’s rescission order on the basis that it constituted impermissible declaratory relief. The appeal court held that the magistrate’s identification of the holder of the right to occupy was an incidental finding necessary to determine whether the earlier interdict had been erroneously granted and was properly rescindable under section 36.

The appeal court further held that the First Respondent did not establish locus standi to institute the review proceedings, because it was not the beneficiary of the 2016 interdict and failed to show a legally cognisable interest in the order sought to be reviewed.

Accordingly, the appeal court upheld the appeal, replaced the court a quo’s order with an order dismissing the review with costs, and made no costs order in the appeal.

LEGAL PRINCIPLES

A postponement is discretionary and is not available as of right; an applicant must show good cause, and the court must be satisfied that a postponement is in the interests of justice. Financial inability to litigate, especially if raised late and without adequate substantiation, does not automatically justify a postponement.

Rescission under section 36 of the Magistrates’ Courts Act 32 of 1944 is a statutory mechanism enabling a magistrates’ court to rescind or vary judgments in defined circumstances, including where a judgment was erroneously granted or otherwise lacks legal foundation. In deciding a rescission application, a court may make necessary incidental findings (including on locus standi and joinder) to determine whether the original order was competently sought and granted.

A declaratory order finally determines rights, whereas an incidental or ancillary finding is made only for the purpose of deciding the relief properly before the court. The classification depends on function and effect, not on the language used.

Locus standi is a jurisdictional prerequisite requiring a real, direct and substantial interest in the relief sought. Standing to institute review proceedings cannot exceed the standing required to obtain or defend the underlying relief, and a party cannot retrospectively acquire standing to revive or defend an order if it lacks a legally cognisable interest in that order.

A review court’s power is limited to recognised review grounds (such as lack of jurisdiction, ultra vires conduct, or gross procedural irregularity) and does not extend to substituting its view on the merits where the impugned decision reflects a lawful exercise of statutory power and no reviewable irregularity is established.

Matsamo Mall (Pty) Ltd v Buhle Buyeza Industrial Primary Cooperative Limited and Others (A03/2025) [2026] ZAMPMBHC 11 (9 February 2026)