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2026
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[2026] ZAGPJHC 108
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Hekpoort Residents Association v Mogale City Local Municipality and Others (121954/2024) [2026] ZAGPJHC 108 (12 February 2026)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 121954/2024
(1)
REPORTABLE:NO
(2)
OFINTREST TO OTHER JUDGES: NO
(3)
REVISED:NO
HEKPOORT
RESIDENTS ASSOCIATION
Applicant
and
MOGALE
CITY LOCAL MUNICIPALITY
First
Respondent
MOGALE
CITY LOCAL MUNICIPALITY
ECONOMIC
DEVELOPMENT SERVICE DEPARTMENT
Second
Respondent
MOGALE
CITY LOCAL MUNICIPALITY
DEVELOPMENT
PLANNING DIVISION
Third
Respondent
MOGALE
CITY LOCAL MUNICIPALITY
SETTLEMENT
AND REAL ESTATE
Fourth
Respondent
THE
GAUTENG DEPARTMENT OF AGRICULTURE
AND
RURAL DEVELOPMENT
Fifth
Respondent
THE
DEPARTMENT OF WATER AFFAIRS AND
SANITATION
Sixth
Respondent
This Judgment was handed
down electronically and by circulation to the parties’ legal
representative by way of email and shall
be uploaded on CaseLines.
The date of the hand down is deemed to be on the 10 FEBRUARY 2026.
JUDGMENT
MAKUME J:
Introduction
[1]
In this matter, the applicant seeks an
order, interdicting the first, second, third and fourth respondents,
from proceeding with
the construction of residential developments in
the area of Hekpoort, known as Dr Sefularo Village and the Vogelzang
project, pending
them furnishing the applicant with certain
documents, reports and permits from certain departments, including
approved building
plans, and environmental impact studies and others.
The parties
[2]
The applicant’s founding affidavit is
deposed to by one Grant Michael Pickett, who says that he is a member
of the Hekpoort
Residents Association, which has a membership of 78
people, and that he has been duly authorised to depose to the
affidavit on
behalf of the 78 members. He alluded to the fact
that a resolution to that effect was signed by a majority of the
members,
and that a copy of that resolution will be made available to
the court on the date of hearing.
[3]
In paragraph 3.2, Mr Pickett said that in
the resolution, he has not set out the names and physical addresses
of most of the 78
members because of violence and conflict within the
Hekpoort community. He, Mr Pickett, concludes by saying that
should it
be necessary to have more details about the people who
signed the resolution, then, they will be willing to cooperate with
the
court.
[4]
It is worth noting that no such resolution
was handed up in court, nor was it uploaded on CaseLines. The
applicant was represented
by an attorney, Christopher Bean, at the
hearing and he made no attempt to address the failure to hand up the
purported resolution,
authorising him to launch this application.
I have serious doubts if there is such a resolution. Mr Bean
also did not
proof to hand up the names of the 78 members of the
association. This is his application in his personal capacity,
as a resident
businessman who has been plying his trade as a plumber
in that area for 25 years.
[5]
The
first respondent is the Mogale City Local Municipality, established
in terms of section 12 (1), read with section 14 (2) of
the Municipal
Structures Act.
[1]
The
second, third, and fourth respondents are functional divisions within
the municipality, each of them responsible for specified
roles within
the municipality.
[6]
The fifth respondent is a provincial
government structure responsible for agricultural and rural
departments. It is answerable
to the Gauteng Provincial
Government. The sixth respondent is a department answerable to
the National Department of Water
Affairs.
[7]
I have already indicated that Mr Pickett
has not produced any resolution supporting his averment that he is
acting on behalf of
the applicant. However, this court accepts
that he is probably seeking to assert his rights in terms of section
38 of the
Constitution of the Republic of South Africa, which reads
as follows:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are -
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.”
[8]
Mr Pickett, in his affidavit, sets out
succinctly what the purpose of this application is. It is to
obtain an interdict against
the first to fifth respondents,
prohibiting them from proceeding with the construction of the
residential and town planning development
in Hekpoort, more
specifically known as Dr Sefularo and Vogelzang project, pending full
compliance with the relevant permits.
[9]
I set out first the correspondence leading
up to this application, which is not in dispute.
[10]
On
7 June 2011, Mogale City Local Municipality published a notice in
terms of section 108 of the Town Planning and Township Ordinance
15
of 1986,
[2]
in
which it informed the public and all interested parties that it
intended to establish a township to be known as Dr Sefularo Village
over part of portion 1 of the farm Vogelzang 429SQ.
[11]
Members of the public or any other
interested parties were invited to lodge objection, if any, within a
period of 28 days.
There is no evidence of any party having
made any representation or lodged any objection. The notice
also refers to only
one development, not two, as stated in the
applicant's notice of motion.
[12]
On 28 May 2012, the fifth respondent
granted the municipality environmental authorisation for the proposed
township establishment
to be known as Dr Sefularo on the farm
Vogelzang.
[13]
On the 21 November 2012, Mogale City
granted the developers, namely; Urban Dynamic Regional Planners, land
use rights to proceed
with the development and erection of structures
over the Vogelzang property. It is not clear if any objections
were received
from the Hekpoort Residential Association.
[14]
On the 12 August 2024, Messrs Christopher
Bean Attorneys addressed a letter to the Department of Planning,
Krugersdorp Municipality,
asking many questions and querying the
wisdom of establishing low-cost housing near and in the vicinity of
the farming community
of Hekpoort.
[15]
Amongst the questions asked by the attorney
are the following:
a. How many
low-cost housing agricultural projects are planned for the future in
the haven of Hekpoort?
b. When were the
Sefularo projects approved?
c. Who approved
them and on what scientific or professional basis were these projects
considered?
d. Why is there
secrecy and no publicity about this project for comment by the
community?
[16]
There are many other questions and
statements being posed, which I do not deem necessary to repeat in
this judgment. The long
and short of the questions is that the
Hekpoort haven, as the attorney describes it, does not want to have
low-cost housing established
in their vicinity.
[17]
What is strange is that this letter is
addressed to the municipality 12 years after the project had been
approved by the local and
provincial government structures.
Applicant’s case
[18]
The applicant’s case at its bare
minimum is that the respondents should discontinue with the housing
development until they
shall have had access to certain information
from the respondents. They seek interdictory relief against an
organ of state.
The respondents’
case
[19]
The
respondents’ case is that the relief being sought by the
applicant is not only non-suited, in that the applicant has not
satisfied the requirements for an interdict. Secondly, that the
respondents, being organs of state, their conduct can only
be
challenged by way of judicial review proceedings in terms of section
6 of the Promotion of Administrative Justice Act
[3]
(PAJA).
Discussion
[20]
The founding affidavit, read together with
the letters of demand, addressed to the municipality, questioned the
decision taken by
the municipality to have a low-cost housing project
in and around Hekpoort.
[21]
The founding affidavit is replete with
insinuations that the municipality is responsible for the mushrooming
squatter areas in and
around Hekpoort and that as a result, the
businesses of Hekpoort, which comprises mostly of guest houses and
tourist attractions
is being threatened. Mr Pickett mentions
the issue of rising criminal activities in the area. All these
issues have
nothing to do with whether the municipality took a good
or wrong decision to establish a township in that area.
[22]
Section 152 of the Constitution of the
Republic of South Africa enjoins the municipality to provide basic
municipal services to
persons within its constituency, that includes
provision of housing and promotion of social and economic
development.
[23]
When Mogale City Council took a decision to
establish the Dr Sefularo Village, it did so as a result of an
imperative to alleviate
homelessness. Some of the people who
have settled in the squatters or informal settlement are people who
have been evicted
by the various farmers of Hekpoort for one reason
or another. It is, accordingly, nonsensical of the applicant to
make spurious
statements that, it is the municipality that has been
dumping refugees and unemployed people in that area.
[24]
Mogale City, in taking a decision in the
year 2011 took an administrative action, which can only be challenged
through a review
process in terms of section 6 of PAJA, not on an
interdict. The decision taken by Mogale City in the year 2011
remains in
full force and effect until it shall have been reviewed
and set aside in terms of PAJA. This court is not sitting as a
court
of review. There is, in my view, no proper and lawful
challenge against the decision taken by the municipality in the year
2011.
[25]
The
next difficulty that the applicant has in this matter is, his failure
to meet the requirements of interdictory relief.
From a reading
of the applicant’s papers, the interdictory relief being sought
is not only in relation to the exercise of
the municipality’s
exercise of its statutory power, but also its constitutional powers.
Such relief can only be granted
if an applicant proves and
demonstrates exceptional circumstances as set out by the
Constitutional Court in
National
Treasury and Others v Opposition to Urban Tolling Alliance
.
[4]
The
applicant has failed to demonstrate any exceptional circumstances.
[26]
Lastly, the applicant has failed to deal
with the requirements of a mandamus. It is trite law that a
mandamus or interdict
is a remedy against the effect of an unlawful
action that has taken place. The notice of motion seeks an
interim order, pending
an order directing the municipality to make
available to the applicant certain documents and information.
It is not seeking
to review the decision taken to establish Dr
Sefularo Villages. Such an order does not exist in respect of
the public bodies
like the municipality.
[27]
The
applicant must establish prima facie right and show that irreparable
harm is likely to result if the remedy is not granted,
further that
the balance of convenience is in favour of granting the remedy, and
that there is no other satisfactory remedy available.
In this
matter, the applicant seeks a mandamus, so that certain information
be furnished to him. The information and documents
that the
applicant requires could and should have been requested in terms of
section 11 of the Promotion of Access to Information
Act
[5]
(PAIA).
The applicant was clearly ill-advised to embark on a fishing
expedition in order to formulate his claim.
[28]
This court is satisfied that the
application is without merit and is simply an abuse of the court
process. The applicant has,
without any reason, decided to
bring up this application to stop a legitimate government project,
which seeks to alleviate homelessness
in and around Hekpoort.
Having said that, I am also satisfied that an appropriate costs order
should be granted on dismissal
of this application.
Order
[29]
In the premise, the following order is
made:
a. The
application is dismissed.
b. The
applicant is ordered to pay the respondents’ costs on a party
and party scale, on Scale B, which shall
include cost of counsel, if
engaged.
MAKUME
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Date of
Hearing:
28 January 2026
Date of
Judgment:
12 February 2026
Appearances
:
For
the Applicant:
Mr. C. Bean
Instructed
by:
Christopher
Bean Attorneys
For
the Respondents: Adv R.A. Ramuhlala
[1]
Act
117 of 1998.
[2]
Town
Planning and Township Ordinance 15 of 1986 as amended by
Proclamation No. 1 of 1992 and Proclamation N. R. 161 of 1994.
[3]
Act
3 of 2000.
[4]
[2012]
ZACC 18;
2012
(11) BCLR 1148 (CC); 2012 (6) SA 223 (CC).
[5]
Act
2 of 2000.