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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION: BHISHO
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
DATE: 10 FEBRUARY 2026_____
SIGNATURE: _________________
CASE NUMBER: EL800/2024
In the matter between:
ILLEGAL LAND GRABBERS and would be
UNLAWFUL OCCUPIERS OF THE FARM 1[...]
EAST LONDON RD, EASTERN CAPE Applicant
And
AGRICULTURAL RESEARCH COUNCIL First Respondent
NOMANDLA NDABENI N.O.
THE SHERIFF OF THE HIGH COURT Second Respondent
NATIONAL COMMISSIONER OF POLICE Third Respondent
BUFFALO CITY METROPOLITAN MUNICIPALITY Fourth Respondent
Summary: Rescission application – 31(2)(b) – link-Rule 42(1)(a) Uniform Rules of the
Court. 28 November 2024 -order granted in absence unj ustifiable. Good cause and
reasonable explanation proved. Application -granted. No order as to costs.
______________________________________________________________________
RESCISSION JUDGMENT
______________________________________________________________________
NTLAMA-MAKHANYA AJ
[1] This is an application for rescission of the judgment granted by this Court on 28
November 2024 against the unlawful occupiers of Farm 1[...] in East London.
[2] The Applicants submitted that they were not before Court when the Order was
granted and thus, they could not defend themselves.
[3] The First Respondent opposed the application and submitted that the Applicants
were aware of the legal proceedings because they were in court and represented by an
Attorney and the same Counsel.
[4] The First Respondent who was the Applicant in an application for a rule nisi that
was issued on the 10 th of May 2024 against the Applicants in this current application
was granted an order in the following terms:
[1.1] Declaring the conduct of the [Applicants] of invading, grabbing,
occupying, deforesting and erecting structures and buildings in the [First
Respondent’s] Farm known as 1[...], East London RD, Eastern Cape,
under Title Deed Number: T6127/1994 (the Farm) to be unlawful.
[1.2] Interdicting the [Applicants] and any other persons from unlawfully
invading, grabbing, occupying, deforesting and erectin g structures and
building buildings in the First Respondent’s Fam.
[1.3 Interdicting and compelled the [Applicants] and any person
occupying the farm through or under them to demolish and /or remove any
unlawfully erected and/or constructed structure on the Farm.
[1.4] Ordering the [Applicants] to vacate the Farm on or before
Wednesday 26 February 2025, and not to return thereafter
[1.5] Ordering that in the event that the [Applicants] do not vacate the
Farm on or before the 26th February 2025 the Sheriff, alternatively, his duly
appointed deputy together with such assistance as he deems appropriate
is authorised to evict the Applicants from the Farm.
[1.6] Compelled the Third Respondent (National Commissioner of
Police) to arrest and remove any of the A pplicants who remain in unlawful
occupation of the Farm on the 26th of February 2025.
[2] This order is not applicable to Ms Yandisa Sawula and all the
Respondents whose confirmatory affidavits have been filed in this application ,
(author’s emphasis).
[3] The Order granted by this Court on the 18 th February 2020 (Annexure “A”
hereto) under case Number: EL54/2020 is applicable to Ms Yandisa Sawula and
all the Respondents who appears in the confirmatory affidavits.
[4] Applicant is permitted to serve the f inal order on the First Respondent in
the following manner:
4.1 that the Sheriff must serve upon the unidentified invaders in the
manner set forth in Rule 4(10 of the Uniform Rules of the Court by
handing the copies of the application to those invaders who are present
when this order is executed.
4.2 In the event tha t the Sheriff is unable to establish a name and the
names of the invaders, that the Sheriff is ordered to serve the order and
the application by affixing a copy thereof to a notice board to be erected at
the entrance to the Farm.
4.3 By affixing copies of the order any available tree structure and or
building of the Applicant situated on the Farm.”
[5] It was this Order that became the subject of this application. It is also imperative
that I give a brief background on this matter.
Background
[6] The Applicants are identified as Illegal Land Grabbers and Would Be Unlawful
Occupiers of the Farm 1[...], East London RD, Eastern Cape. In addition, they had
unlawfully occupied the said 1[...] Farm in February 2024.
[7] I must first mention that the Fourth Respon dent requested to be excused from
the proceedings as they had prepared an Affidavit in response to paragraph 7 of the
Court Order dated 28 November 2025. That Order required the Fourth Respondent to
file a report on alternative measures to find accommodati on for affected parties. The
affidavit was submitted before this Court. On the other hand, the Applicants alleged that
they were only provided with it in the morning before the commencement of these
proceedings. Without argument, the Fourth Respondent was released from the
proceedings after his quest was granted. The Second and Third Respondent were not in
appearance.
[8] In addition, there was an existing Court Order that was granted on the 18 th of
February 2020 against a group of Squatters that invaded F arm 1[...]. It also turned out
that the Order was issued against Ms Yandisa Sawula and all the Respondents that
submitted confirmatory affidavits against their removal from the Farm. In this case, the
Applicants, as alleged, were not part of the group that w as ordered to be removed from
Farm because they were not in Court.
[9] The First Respondent is a registered state institution within the executive sphere
of government with a specific and functional mandate to carry out high level research for
the economic well-being of the country. The First Respondent submitted that the Order
that was issued in February 2020 was not executed due to COVID -19 Pandemic and
stands not to be challenged. Yandisa Sawula was not cited in this application and was
not in court. I n February of 2024, the Applicants unlawfully grabbed, invaded and
occupied Farm 1[...] that belong to the First Respondent. Amongst other unlawful
activities they did was to deforest, erected and built structures on the Farm. On the 03 rd
of March 2024, the Applicants were issued with the Notice by the Sherriff to move out of
Farm 1[...] on 15 March 2024. The Sherriff had affixed the notice at the main entrance of
the Farm. On 09 May 2024 an application was launched by the First Respondent for a
Rule Nisi and an interim order was granted on 10 May 2024.
[10] It was confirmation of the rule nisi which was foundational to the Order that was
granted on the 28th of November 2024 which then led to this application.
Legal Framework
[11] The scope and requirements o f the principles of rescission in terms of Rule
31(2)(b) are constantly evolving as determined by the merits of each case. Rule
32(1)(b) reads as follows:
(b) A defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon notice to the plaintiff to set aside such
judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as it deems fit.
[12] It is worth mentioning that Rule 32(1)(b) is not to be read in isolation of Rule 42
which provides:
1 The court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or vary an order or judgment:
(a) erroneously sought or erroneously granted in the absence of any party
affected thereby.
(b) in which there is an ambiguity, or a patent error or omission, but only to
the extent of such ambiguity, error or omission;
(c) granted as the result of a mistake common to the parties.
(2) Any party desiring any relief under this rule shall make a pplication
therefore upon notice to all parties whose interests may be affected by any
variation sought.
(3) The court shall not make any order rescinding or varying any order or
judgment unless satisfied that all parties whose interests may be affected have
notice of the order proposed, (author’s emphasis).
[13] The Rules are intertwined with each other because they encompass the
application of the principles of rescission relating to an order that was granted in the
absence of the affected party. Let me reiterate, these Rules are interdependent because
they are constituted by grounds that must co -exist for the success of the rescission
application. The affected party must (i) show the existence of the order granted against
him; (ii) sought rescission of the order that was granted in his absence and (iii) was
erroneously granted. In addition, these are not mere grounds that may flow into a
‘hollow ring’. They require a high standard of proof relating to the establishment of
whether the applicant has a (i) genuine defence, (ii) reasonable explanation on non -
appearance to defend the alleged claim against him and (iii) any merited good cause for
the prospects of success in the main application. It is in this instance that courts are
endowed with authority to exercise their judicial discretion and take all the relevant
factors and consider whether to grant the application. The significance of these grounds
was summarised by Mbha JA in Rossiter v Nedbank1 who held:
“The law governing an application for resciss ion under Uniform rule 42(1) (a) is
trite. The applicant must show that the default judgment or order had been
erroneously sought or erroneously granted. If the default judgment was
erroneously sought or granted, a court should, without more, grant the orde r for
rescission.”2
[14] The Applicants in this matter alleged that they were absent during the initial
stages of the legal processes. The content of these grounds entails an intense analysis
in balancing the interpretation of competing rights. The reaso nableness of the alleged
claim is a test against which the Applicants must satisfy the Court that the order was
granted in their absence. It is against this background that Courts, as the last line of
defence in the protection of competing rights must exer cise caution as Madala J in
Soobramoney v Minister of Health (KwaZulu-Natal)3 held:
“The Constitution is forward -looking and guarantees to every citizen
fundamental rights in such a manner that the ordinary person-in-the-street,
who is aware of these guarantees, immediately claims them without
1 [2015] ZASCA 196.
2 Ibid para 16.
3 1997 (12) BCLR 1696 (CC).
further ado – and assumes that every right so guaranteed is available to
him or her on demand. Some rights in the Constitution are ideal and
something to be strived for. They amount to a promise, in some cases,
and an indication of what a democratic society aiming to salvage lost
dignity, freedom and equality should embark upon. They are values which
the Constitution seeks to provide, nurture and protect for a future South
Africa.” [… ] In its language, the Constitution accepts that it cannot solve
all of our society’s woes overnight, but must go on trying to resolve these
problems. One of the limiting factors to the attainment of the Constitution’s
guarantees is that of limited or scarce resources,” 4 (author’s emphasis).
[15] I am persuaded by Madala J because the principle it developed is of direct
relevance to the matter at hand to ensure the in terpretation of the of two Rules: 31(2)(b)
and 42(1)(a) is exercised with cautiousness. These Rules had set the bar high to ensure
that legitimate reasons are presented before the Court. They are of further significance
because they are a bedrock against w hich to ensure finality and prevention of any form
of endless litigation. It is in this regard that the Applicants were required to bring
concrete grounds and not flimsy reasons for rescission of the Court Order. The weight
that is attached to the applicat ion of the rules of rescission requires their interpretation
through the lens of the Constitution 1996. The Applicants, therefore, had to justify the
rationality of the alleged non-appearance in Court for the success of the application.
[16] With this in mind, this Court is to determine whether:
[14.1] the alleged non-appearance was justified.
[14.2] there was a reasonable explanation for non-appearance; and
4 Ibid paras 42-43 (footnotes omitted).
[14.3] bona fide defence existed for non-appearance.
[17] I am therefore enjoined to consider whether the application to rescind should or
not be granted.
Issues in Dispute and Parties Submissions
[18] In this case, the First Respondent obtained a Court Order against any party that
was in unlawful occupation of 1[...] Farm on the 18th of February 2020.
[19] Before this Court, the Applicants submitted that the order of this Court dated the
28th of November 2024 was granted in their absence. They were not properly served
with the Notice to move out of the Farm and only became aware of the Order thro ugh
word of mouth. They were also excluded from the initial legal process that involved
Yandisa Sawula and other Respondents that had confirmatory affidavits submitted
before the Court then. Secondly, they were affirmative that paragraph 2 of the said
Order was also not applicable to them which reads as follows:
“This Order is not applicable to Yandisa and all the Respondents that
submitted their confirmatory affidavit.”
[20] They further emphasised that since they were not in Court, the implementation of
the Order had dire consequences for them. They contended that its enforcement did not
distinguish between them and Yandisa Sawula and all other Respondents that
submitted confirmatory affidavits against their removal from the Farm. This m eant, as
they submitted, the enforcement of the Order did not spare them from its effects and
destruction of their property. The direct or indirect enforcement of the Order subjected
them to inhuman and cruel treatment.
[21] On the other hand, the First R espondent dismissed the contention that the
Applicants were not in Court on that day. He substantiated his submission and stated
that the Applicants appeared in Court because they were represented by an attorney
and the same Counsel. Secondly, there were n o distinctive groups as all invaders were
ordered to move out of Farm 1[...]. Thirdly, the Applicants did not have legal standing to
have brought the matter before the Court because of their appearance in Court in the
initial stages of the legal process. Fou rthly, the Applicants were issued with Notices by
the Sheriff that were affixed at the main entrance of the Farm and incomplete structures
and for them to move out of the Farm on 15 March 2024. At the same, the Sheriff’s
return of service was clear that the Notices were affixed at the gate of the Farm. Further,
the Applicants could not, pursuant to the 2020 Order ride at the back of those already
evicted and attempt to bring the matter through the back door and plead non-awareness
of the proceedings at the time. It is trite to mention that the Applicants were in
occupation of Farm 1[...] in February 2024. Hence, the First Respondent submitted that
the Applicants did not live on the Farm longer than 6 months as required by the PIE Act.
They occupied the Farm in February 2024 and in turn, after attempts to have them
move out of the Farm failed, an application for a rule nisi was filed on the 09 th of May
2024 and granted on 10 May 2024. The First Respondent further submitted that
Applicants failed to explain why t hey have not obtained alternative accommodation
almost a year after the order was granted. They were untrustworthy because they
concealed these factors from the court and that is why an eviction order was granted on
28 November 2024. The matter therefore l acks urgency and self -created because the
Applicants were given until end of February 2025 to vacate the Farm.
Applicants were given until end of February 2025 to vacate the Farm.
[22] With the afore-factors, to what extent do they address the main legal principles in
the determination of this application?
Analysis
[23] This Court is not to deal at length with complexity of factual issues that emanated
from this matter. It will limit itself to the principles of rescission as they relate to the
Order granted by this Court on the 28 th of November 2024. Thus, it appears that there
were several attempts to resolve the impasse between the parties as they were
explicitly stated in a judgment dated 04 March 2025 delivered by Mnqandi AJ. In
addition, the Applicants were blanketly put under one Umbrella without distinguishing
each one from the other. It is also worth mentioning, with no bearing on this rescission
application for now, the Fourth Respondent’s brief submission to be excused from these
proceedings, indicated that the Order granted by Malusi J on 21 November 2025, for the
Fourth respondent to submit a plan for alternative accommodation of the Applicants, its
Officials did go to the Farm to get their details. Thus, the exercise was fruitless because
they could not find any people that were in its occupation.
[24] This matter dealt with complex issues that required this Court to balance the
competing rights between the rights of lawful landowners vis-à-vis unlawful occupiers of
the land. This matter placed this Court in an invidious position of being the last line of
defence to eliminate any form of lawlessness against the further interests of the plight of
people in dire situation for access to adequate housing within the broader framework of
accessing land.5 This Court acknowledges the challenges faced by the state to equally
balance these competing interests. Thus, despite the acknowledgement, with the
standards set high for ordinary citizens to ensure compliance with the Rules, it is also
required to fulfil the aspirations of the Constitution in ensuring the establ ishment of a
“just society”. Yacoob J in Government of the Republic of South Africa v Grootboom 6
expressed it in no uncertain terms that:
“The issues here remind us of the intolerable conditions under which many of our
people are still living. The respon dents are but a fraction of them. It is also a
reminder that unless the plight of these communities is alleviated, people may be
reminder that unless the plight of these communities is alleviated, people may be
tempted to take the law into their own hands in order to escape these conditions.
The case brings home the harsh reality that t he Constitution’s promise of dignity
and equality for all remains for many a distant dream. People should not be
5 See section 26(1) of the Constitution.
6 2000 (11) BCLR 1169 (CC).
impelled by intolerable living conditions to resort to land invasions. Self -help of
this kind cannot be tolerated, for the unavailability of la nd suitable for housing
development is a key factor in the fight against the country’s housing shortage.”7
[25] It is against this backdrop that this Court acknowledges further that ‘the judiciary
cannot itself correct all the systemic unfairness to be f ound in our society. … yet it can
at least soften and minise the degree of injustice and inequity which the eviction of the
weaker parties of inequality of necessity entails’. 8 In the context of this case, the
discretion to be exercised by this Court whet her application for rescission should be
granted will serve as a pathway for the determination of its merits at the main trial.
Alternatively, to endorse the non -appearance as a willful disobedience of the court
processes that undermine the principles of law that should contribute to social change.
[26] In this matter, the First Respondent dismissed and argued that the Applicants
failed to prove their non -appearance in Court and the subsequent result of the 28 th of
November 2024 was justified. He substanti ated his contention and stated that the
Applicants claim that they were not in Court was null and void because they did appear
and were represented by the same Attorney and Counsel. They, therefore, did not have
a legal standing to bring this matter before Court for a rescission of the Order. He
concretised his arguments that the non -appearance connoted a complete disregard of
the legal proceedings. Simply put, the Applicants had consciously taken a decision not
to defend their case and became an “annoyance ” that needed to be removed Farm
1[...]. In addition, the Applicants failed to comply with the requisites of Rule 31(2)(b) and
to ‘show good cause and reasonable explanation as soon as they became aware of the
judgment which could have enabled the court to d etermine whether to set aside the
judgment which could have enabled the court to d etermine whether to set aside the
judgment as it deems fit’. The content of Rule 32(1)(b) is to show a genuine and bona
fide defence of the alleged claim. This, therefore, raises the question whether:
7 Ibid para 2.
8 Sachs J in PE Municipality para 38.
(i) there was a reasonable explanation for the Applicants to have
absented themselves from appearing in Court on 28 November
2024?
(ii) Did the Applicants know that the application was directly brought
against them?
(iii) Did the Applicants intentionally failed or refr ained from appearing in
Court?
[27] These questions are important in the light of the transformative aspirations in the
Constitution that seek to eliminate poverty; inequality, landlessness and issues of
access to adequate housing which are central to So uth Africa’s maturity democracy.
They are of further importance because of the implications of the undefended rule nisi
which leaves the Court with no opportunity to assess and balance the value of the
evidence that was led. Does it mean the Courts should graciously dismiss an
application without considering all the relevant factors relating to non -appearance in the
matter? Does it also mean that non -appearance ‘shuts the doors’ of litigation and
eliminates any opportunity for the people without a roof over their heads to state the
merits of their case at the main trial? These questions are motivated by Sachs J in Port
Elizabeth Municipality v Various Occupiers 9 on his analysis of what constitutes as
‘home’ as held:
“ … a home is more than just a shelter from the elements. It is a zone of personal
intimacy and family security. Often it will be the only relatively secure space of
privacy and tranquillity in what (for poor people in particular) is a turbulent and
hostile world. Forced removal is a shock for a ny family, the more so for one that
has established itself on a site that has become its familiar habitat.”10
[28] The significance of a ‘home’ which is foundational to this application as
contextualised by Sachs J is a direct response to the First Respondent’s argument that
9 2004 (12) BCLR 1268 (CC), PE Municipality.
10 Ibid para 18.
the Applicants failed to prove the application of section 4 of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The said
section provides:
(1) [….]
(2) [….]
(3) […]
(4) […]
(5) […]
(6) If an unlawfu l occupier has occupied the land in
question for less than six months at the time when the
proceedings are initiated, a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all the relevant circumstances, including
the rights and needs of the elderly, children, disabled
persons and households headed by women.
(7) If an unlawful occupier has occupied the land in
question for more than six months at the time when the
proceedings are initiate d, a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all the relevant circumstances,
including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether lan d has been
made available or can reasonably be made available by a
municipality or other organ of state or another land owner for
the relocation of the unlawful occupier, and including the
rights and needs of the elderly, children, disabled persons
and households headed by women.
[29] Both parties conceded that the Applicants had not lived on the Farm for a longer
period as required by the PIE Act. The Applicants started occupying the Farm with effect
from February 2024. During this period, the First Respondent, as submitted, did engage
with the Applicants to move out of the Farm from the 15th of March 2024. The Applicants
did not move out of the Farm on the said date. This led to the filing of an application for
a rule nisi which was granted on the 10 th of May 2024. The latter Order was confirmed
on the 28 th of November 2024, which has now become the subject of these
proceedings.
[30] I am of the view that irrespective of the period within which the Applicants
occupied the Farm, I found it disconcert ing that the First Respondent would narrow the
interpretation and effects of the rule nisi order and its confirmation on 28 November
2024. It is explicit in that Order that it was exclusive of Yandisa Sawula and her Group.
Further, should the Applicants (Respondents in that matter) fail to move out of the Farm,
the First Respondent will have to amass resources to ensure their eviction from the
Farm. This Court is not to reproduce the content of that Order, thus, as the Applicants
argued, its enforcement had huge implications for them. Nugent JA in Pitelli v Everton
Gardens Project11 held that an ‘order might not be appealable because it is capable of
being rescinded in terms of Rule 42(1)(a) or common law.’ 12 Thus, in the circumstances
of this case, an uncer tainty was constituted because of the non -distinction between the
parties that were in default of non -appearance in Court and those that had an existing
order to be executed against them. I am persuaded by Nugent JA that an order is not
appealable until it s finality to eliminate any irreparably harm that may be prejudicial to
the Applicants. The Applicants brought to the attention of this Court the Constitutional
Court judgment in Zulu v Ethekwini Municipality13. That judgment held:
Court judgment in Zulu v Ethekwini Municipality13. That judgment held:
“it is evident from Rul e Nisi that the Applicant’s continued
occupation of the property would amount to their eviction because
they would be precluded from either returning to their homes after a
11 [2010] ZASCA 35.
12 Ibid para 27.
13 2014 (8) BCLR 971 (CC).
temporary absence or because they would be kicked out of their
homes to prevent them from continuing to occupy the property. This
means to this extent, that part of the interim order is an eviction
order.”14
[31] It is deduced from Zulu judgment that the effects of rule nisi will linger over the
heads of the Applicants, whilst the appli cation for rescission was still to be finalised.
Further, the effects of paragraph 2 of the Order were clear and unambiguous because it
was not applicable to Yandisa Sawula and other Respondents with confirmatory
affidavits. In addition, paragraphs 3 and 4 have sealed the non -reference of the Order
on Yandisa Sawula and Respondents with confirmatory affidavits in the 2020 Order. It is
worth mentioning that paragraph 4 went further and operationalised the execution of the
order against the Applicants.
[32] The Order of the 28 th of November 2024 had major consequences for the
Applicants who were not before the Court because there was no evidence of them
having submitted affidavits in support or against that application. An affidavit is a
founding document to the content of the factual evidence relating to the dispute without
which, it would constitute an uncertainty regarding the pleadings or issues in contention.
This Court is of the view that the Applicants could not be put in the ‘same basket’ as
Yandisa Sawula and her group because the Order itself was clear in that regard. This
Court acknowledges that although it may exercise its discretion to consider the matter
without affidavits, 15 in the context of this case, there were no affidavits that were filed
that could have bound them to the outcome of the application. In the circumstance, the
granting of an order in default of non -appearance, the Applicants did not misplace the
route to follow in filing for rescission of the Order.
[33] The First Respondent lodged a scathing attack against the filing of the rescission
[33] The First Respondent lodged a scathing attack against the filing of the rescission
application. On the other hand, he did not place before this Court any evidence that the
14 Ibid para 25.
15 See Bands AJ in Cibi v Public Service Commission [2022] ZAECMKHC at para 19.
removal of Applicants from Farm 1[...] will prevent any future invasions except for the
adoption of “my land and I can do with it whatever way I want approach”. This approach
is limiting and views the Applicants as unworthy of protection that needed to be ‘sent
bulldozers or sledgehammers’ 16 for their removal from the Farm. This Court is
conscious of the fact th at the scales are not balanced between the rights of lawful
owners vis-à-vis unlawful occupiers. They are both to suffer prejudice, thus, their
context should be holistically considered without one adopting an ‘individualistic’
approach’ as Sachs J in PE Municipality held that ‘we are not islands unto ourselves.’ 17
The latter is a concept that was conceptualised by Mokgoro J in S v Makwanyane 18
through the lens of the principle of ‘ubuntu’ as the Judge held:
“generally, ubuntu translates as humaneness. In its most fundamental
sense, it translates as personhood and morality. Metaphorically, it
expresses itself in umuntu ngumuntu ngabantu , describing the
significance of group solidarity on survival issues so central to the survival
of communities. While it en velops the key values of group solidarity,
compassion, respect, human dignity, conformity to basic norms and
collective unity, in its fundamental sense it denotes humanity and morality.
Its spirit emphasises respect for human dignity, marking a shift from
confrontation to conciliation. In South Africa ubuntu has become a notion
with particular resonance in the building of a democracy. It is part of our
“rainbow” heritage, though it might have operated and still operates
differently in diverse community settings.”19
[35] This Court, with the principle of the gist of ‘ubuntu’ in mind, found it difficult that
the First Respondent during oral argument viewed the Applicants as an unpleasant
“annoyance” that needed to be automatically removed from Farm 1[...]. The Applicants
found themselves faced by poverty, landlessness, unemployment with the elderly,
found themselves faced by poverty, landlessness, unemployment with the elderly,
16 See PE Municipality (note 9 above) para 20.
17 Ibid para 37.
18 1995 (6) BCLR 665 (CC).
19 Ibid para 307, (footnotes omitted).
women, children and youth hard -hit by circumstances in which they found themselves.
This Court acknowledges that there is no direct entitlement to a house. 20 Thus, the tone
of the First Respondent’s language use and classification of Applicants as “annoyance”
was a deeply entrenched lack of recognition of the progress made so far since the
attainment of democracy in addressing the divisions of the past on access to ho using
which continue to manifest themselves. The First Respondent endorsed the distinction
between the “rich and the poor”. Sachs J in PE Municipality dismissed this approach
and held:
“those seeking eviction should be encouraged not to rely on concepts of
faceless and anonymous squatters automatically to be expelled as
obnoxious social nuisances. Such a stereotypical approach has no place
in the society envisaged by the Constitution; justice and equity require that
everyone is to be treated as an individual bearer of rights entitled to
respect for his or her dignity. At the same time those who fin d themselves
compelled by poverty and landlessness to live in shacks on the land of
others, should be discouraged from regarding themselves as helpless
victims, lacking the possibilities of personal moral agency . The tenacity
and ingenuity they show in mak ing homes out of discarded material, in
finding work and sending their children to school, are a tribute to their
capacity for survival and adaptation. Justice and equity oblige them to rely
on this same resourcefulness in seeking a solution to their pligh t and to
explore all reasonable possibilities of securing suitable alternative
accommodation or land,”21 (authors emphasis).
[36] The First Respondent sought to ‘bulldoze’ the Applicants through the legal
process and halt the consideration of the uniqueness of their plight at the main trial. The
First Respondent functions within the framework of authority that is vested and
transferred to the executive sphere of government in terms of section 97 of the
transferred to the executive sphere of government in terms of section 97 of the
20 See section 26 of the Constitution of the Republic of South Africa 1996, ‘Constitution’.
21 PE Municipality (note 9 above) para 41.
Constitution. The transferred authority requires the e xecutive to (i) administer any
legislation entrusted to another; or (ii) any power or function entrusted by legislation to
another member. From the point of view of this Court, it is quite intriguing that the First
Respondent will use its resources to serv e as a shield to ‘stifle the wheels of justice’
towards the determination of the merits of the dispute against which the executive would
be absolved from its primary responsibility to help people in emergency. This may not
be a large group of people who ha d a short stay at the Farm and legitimately requiring
access to a roof over their heads. They were faced by a glaring and imminent
demolishment of their property without being distinguished from the enforcement of the
2020 Order and the 2024 Order that was of direct application to them due to their
default on appearance. The plight of the Applicants was not ‘self -created’ as evidenced
by Malusi J in his Order that required a plan that will make provision for an alternative
accommodation for people in dire s ituations. The First Respondent’s attempt to halt this
matter proceeding to have its merits determined was a showing of financial and legal
muscle to have the vulnerable people being thrown on the streets with no roof over their
heads.
[37] Considering t he conspicuous evidence and applicable legal principles, I am
satisfied that the Applicants had demonstrated that the non -appearance in Court was
reasonable. They had proved the fulfilment of the requirements of rescission in terms of
Rules 31(2)(b) and 42(1)(a). Under the circumstances, I am of the considered view that
the Applicants had a genuine and reasonable explanation for this Court to rescind the
court order granted on the 28th of November 2024.
[38] Accordingly, the following order is made:
[38.1] The application for rescission of order dated 28 November 2024 is
granted.
[38.2] There is no order as to costs.
Delivery: This judgment is issued by the Judge whose name appears herein and is
submitted to the parties /legal representatives by email. I ts date of delivery is deemed
10 February 2026.
___________________________
NTLAMA-MAKHANYA
ACTING JUDGE: MTHATHA
EASTERN CAPE DIVISION
Date Heard: 29 January 2026
Date Delivered: 10 February 2026
Appearances:
Applicant: Advocate Z Madukuda
Instructing Attorneys: S. Mjaliswa Inc Attorneys
Old Union Street, East London
First Respondent: Advocate Baloyi
Instructing Attorneys: Maenetja Attorneys
Waterkloof, Pretoria
Second Respondent: No Appearance
Third Respondent: No Appearance
Fourth Respondent: Advocate Swartbooi (Released from Proceedings)
Instructing Attorneys: Makhanya Attorneys
Foschini Building, East London