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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 4978/2024
In the matter between:
VICTORIA VUYOKAZI NDOBENI 1st
Applicant
NONTYANTYAMBO OLPHA MATIWANE 2nd Applicant
QUEEN BOQWANA SOKO 3rd Appellant
and
UMZIMVUBU LOCAL MUNICIPALITY Respondent
In Re:
UMZIMVUBU LOCAL MUNICIPALITY Applicant
and
UNKNOWN ILLEGAL INVADERS 1st Respondent
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STATION COMMISSIONER OF MOUNT
FRERE POLICE STATION 2nd Respondent
NOMVUME ZANOLWAZI MAKAULA 3rd Respondent
JUDGMENT
MHAMBI AJ
[1] This application concerns the rescission of an order granted by this court
in favour of the respondent on 17 December 2024. The application is brought
in terms of rule 42(1) of the uniform rules of this court. The order of 17
December 2024 is hereinafter referred to as “the impugned order”.
[2] The material terms of the impugned order are set out as follows:-
2.1 The first and third respondents and those acting in common cause
with them be interdicted and restrained from erecting structures
and fencing at the remainder of Erf 3[...], Papanana Location, in
the district of Mount Frere.
2.2 The respondents are ordered and directed to demolish the structures
built on the piece of land, being a portion of Erf 3[...], Papanana
Location, Mount Frere.
2.3 The respondent is ordered to remove fencing on the remainder of
Erf 3[...], Papanana Location, Mount Frere, within 10 days from
the date of receipt of this order:
2.3.1 In the event the respondents fail to comply with paragraph 3
above within 10 days of service of this order, the applicant is
granted leave to demolish the informal structures on the
piece of land mentioned above and to remove fencing;
2.3.2 That the first respondent (acting through its members) and
the other individual respondents be and are hereby forthwith
interdicted and restrained from inciting violence,
intimidating, threatening and or unlawfully interfering with
the applicant’s employees including service providers
contracted by the applicant who are not its members and or
do not make common cause with them from performing their
duties to the applicant or its premises.
2.4 That in the execution of this order, if need be, the Sheriff of this
court be assisted by members of the South African Police Service
from Mount Frere Police Station under the eight respondents’
command, (sic the notice of motion).
[3] The rescission sought is based on the grounds appearing hereunder:-
[4] The impugned order was sought by the respondent and granted in the
absence of the applicants. The applicants averred that the impugned order
should be set aside on the grounds that the respondent, “ the municipality”, was
not entitled to institute the proceedings, “ the main proceedings”, and seeks for
an order, as it did, in the absence of the affected parties.
[5] There is a history of litigation between the parties as follows: - This court
issued an order under Case No: 5028/2023, which had directed that the dispute
concerning Erf 3[...], Mvuzi or Panama location, to be referred to Mediation.
The mediation proceedings are still pending. The applicants alleged that the
municipality did not disclose the pending mediation proceedings in the main
proceedings, because, by that, this court, acting on that nondisclosure,
erroneously granted the impugned order.
[6] The applicants contend that they were not cited nor served with the
papers of the main application. The impugned order, too, was not served on
them. On 19 March 2025, the officials of the Municipality came to the
applicants’ homes to execute the impugned order, the effect of which is the
demolition of their homes, so contend the applicants.
[7] I need not deal with the merits and demerits of the dispute between the
parties relating to the land that is the subject of dispute in the main application
and the mediation proceedings. That is the issue to be determined in the main
application or the pending mediation proceedings.
[8] The only issue for determination is whether the impugned order was
erroneously sought and subsequently erroneously granted, as the applicants
alleged. If this court is satisfied on that issue, this application ought to succeed.
[9] The approach to applications, generally, is that applications are not
designed to resolve factual disputes between the parties and are decided on
common cause facts. Probabilities on onus issues are not amenable to being
determined in motion proceedings1.
[10] As set out in Civil Procedure in the Supreme Court2:
“It is well established under the Plascon Evans rule that where in motion proceedings
dispute of facts arise on the affidavits, a final order can be granted only if the facts
averred in the applicants’ affidavits, which have been and admitted by the respondents
together with facts averred by the latter justified such an order. It may be different if
the respondent’s version consists of bald or creditworthy denials, raises fictitious
disputes of fact, it is palpably implausible, farfetched or so clearly unattainable that
the court is justified in rejecting them merely on the papers.”3
[11] The court has to accept more facts averred by the applicants that were not
disputed by the respondent, and the respondent’s version, so far as it was
plausible, tenable and credible.4
1 Plascon-Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd, [1984] ZASCA S1 1984 (3) SA 623 [A]
634-635. National Director of Public Prosecutions v Zuma, 2009 (2) SA 279 (SCA) para [26].
2 Harmse (Butterworths) B.6.45.
3 Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA).
4 Airports Company South Africa SOC Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4 ALL
SA 66 5 (SCA).
[12] This, however, is not the end of the matter as pointed out by Harms: Civil
Procedure in the Supreme Court5 as follows:-
“It is accordingly generally undesirable to endeavor to decide application upon
affidavit where the material facts are in dispute. In such case it is preferable that oral
evidence be led to enable the court to see and hear the witness before coming to a
conclusion6. On the other hand, it is equally undesirable for a court to take all dispute
of facts at their face value. If these were done the respondent might be able to raise
fictitious issues of fact and thus delay the hearing of the matter to the prejudice of the
applicant7. In every case the event should examine the alleged disputes of fact and
determine whether in truth there is a real issue8 of fact that cannot be resolved without
the aid of oral evidence9.
Whether a factual dispute exists is not a discretionary decision, it is a question of fact
and a jurisdictional pre -requisite for the exercise of the discretion given by the rule 10.
It is not a question of any difference of character between the various kinds of claims
5 Butterworths B.6 45
6 Frank v Ohlsson’s Cape Breweries Ltd 1924 AD 289 @ 294, Plascon – Evans 634 – 639.
7 Peterson v Cuthbert and CO. Ltd 1945 AD 420 at 428. A hollow denial or detailed but fanciful and untenable
version does not create a dispute of fact: Truth verification Centre CC, 1998 PSE Truth Detection CC, 1998 (2)
SA 689 (W) 69D Rosen V Eskon [2000] 3 ALL SA 23 (W) 39, RIPOLL DAUSA v Middleton NO [2005] 2
ALL SA 83 (C ), 2005 (3) SA 141 (C).
8 Rothman v Curr Vivier Inc, 1997 (4) SA 540 (C) 551, Peterson v Cuthbert and Co. Ltd Supra 429, President of
the Republic of South Africa v South African Rugby Football Union 2000 (1) SA (CC) paras 234 - 239. It has
various been called a “genuine” or bona fide” dispute but the meanings are the same, whether the converse of “a
real dispute” is a “ mala fide” dispute of a fact is suggested in Von Steed v Von Steed 1984 (2) SA 203 (T) is
open to doubt. Speculation do not create a real dispute of fact: Standard Credit Corporation Ltd v Smyth 1991
(3) SA 179 (W).
9 Peterson v Cuthbert and Co. Ltd Supra 428, Administrator, Transvaal v Theletsane [1990] ZASCA 156, 1991
(2) SA 192 (A)
10 Ismael v Durban City Council, 1973 (2) SA 362 (H) 374 A –B. Dupreez v NWK Ltd [2005] 3 ALL SA 551
(B).
being enforced, but a question of the proper method of determining in each case the
facts upon which any claim depends.”11
[13] I now turn to answer the question of whether the impugned order was
erroneously sought and subsequently erroneously granted.
[14] In general terms, a judgment is erroneously granted if there existed, at the
time it was granted, a fact which the judge was unaware, which would have
induced the judge, if he had been aware thereof, not to grant the order.12
[15] The result is that the order was thus erroneously sought and erroneously
granted, as envisaged in rule 42 (1) (a).
[16] In substance, rule 42 endows the applicant with the duty to prove two
things: first that an order was erroneously sought; second, that an order was
erroneously granted in its absence. The court will then exercise a judicial
discretion of whether to rescind or not its order. In my assessment, rule 42
requires the court to do a double -edged consideration; other than rule 42 itself,
the court has to consider the common law requirements for the grant of a
rescission. The court has to be satisfied that the applicant has proffered a bona
fide explanation for its absence in court when the impugned order or judgment
was granted. The applicant need to proffer a genuine explanation for its
absence when the impugned order was granted.
11 Room Hire Co Pty Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) 1162; Ter Breek v United
Resources CC 1997 (3) SA 315 (C) 329 D-E.
12 Naidoo 2012 (1) SA 143 152 A – 153 A.
[17] The kind of discretion the court needs to exercise was clearly explained
by the Constitutional Court in Zuma v State Capture Commission13:-
“{Once} an applicant has met the requirements of rescission; a court is merely
endowed with a discretion to rescind its order. The precise wording of the rule, after
all, postulates that a court “ may”, not “must”, rescind or vary its order, in the rule is
merely an “empowering section and does not compel the court to set aside or rescind
anything. This discretion must be exercised judicially.”14
[18] It is axiomatic to deal with the consequences of: first, the applicants not
being cited as a party or parties in the main application proceedings when the
impugned order was granted; second, the applicants not served with the
impugned order, which was enforced and executed in a manner materially
affecting their rights. This requires a thorough scrutiny of the circumstances
preceding the grant of the impugned order.
[19] In the proceedings of the main application, the 1 st respondent is described
as “ unknown illegal invaders ”. The question is whether that description is
adequate for the grant of a competent order.
[20] The question is answered by reference to authorities referred to by
Mbenenge JP, in Nontombi Gcaba and Others v Ntabankulu Local Municipality
and Others.
13 Zuma v Secretary of the Judicial Commission of Inquiry into allegations of State Capture, 2021 (11) BCLR
1263 (CC).
14 Supra fn 13 para 53.
[21] Mbenenge JP referred to remarks by Conradie J in Kayamnandi Town
Committee v Mkhweso and Others15, apply as follows:-
“(a) An order or judgment erroneously granted in the absence of any party affected
thereby;
(b) An order or judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity, error or omission.”
[22] Whereafter he referred to what Budlender AJ said in Mpaka16:-
“If the Sheriff reads out the order today, it will be of no force or effect in respect of
any person who is not present when he reads out the order, and who intends to occupy
the land tomorrow or thereafter. It will be effective only in respect of any person who
at the moment of announcement, happens to be in the process of occupying the land
or visiting it. It will not give any notice of the order to any other people intending to
occupy the land and will be entirely ineffective as far as they are concerned….”
[23] Notably, in the main application proceedings, not only that the respondent
was not properly described, there was no proper description of the erven
concerned, I say this because, at that time, the Municipality was aware that the
relevant erven, or property concerned is erf 3[...], there was no proper
description of the place or area affected by that erven at that time it falls under
Mvuzi or Papanana Location, within it’s area of jurisdiction.
15 Unreported judgment Nontombi Gcaba & others v Ntabankulu Local Municipality & others (2760/2019)
[2021] ZAECMHC 17, para 12, 14
16 Mpaka and others v King Sabatha Dalindyebo Municipality and Others [2017] ZAEC MHC 24 (11 July 2017)
paras 13 – 15.
It was equally undesirable for the respondent not to cite the correct description
of the property concerned in it’s notice of motion and only do so in the
impugned order.
[24] Consequently, I conclude that at the time of instituting the main
application proceedings, the municipality had all the facts necessary for a proper
description of the 1 st respondent in the main application; their description as
“unknown illegal invaders ” is inadequate, with the result that the impugned
order was incompetent.
[25] It is my view that the order seeking for the demolition of a structure is drastic in
nature, in circumstances where the structure affected by the demolition order is used as a
“home” to house people, the demolition order has the same effect as the eviction order. It has
an effect to render the occupants thereof homeless.
[26] The court should take an active role in adjudicating a matter involving demolition.
The court must have considerations of justice and equity. In doing so, the court should
consider adequate information and facts relating to whether or not, the structure to be
demolished is a “ home” to individual or group of persons whether, after the grant of a
demolition order will those individuals or group of persons have an alternative
accommodation, and also their personal circumstances, for example, whether there are
disabled persons or children living in the structure to be demolished. It is only after
consideration of these factors that demolishment order should be granted.
[27] In relevant circumstances, courts adjudicating over demolishment proceedings should
adopt the approach adopted in Changing Tides17, the SCA provided some guidance:-
“Where [unlawful occupiers are not represented, courts may consider issuing a rule nisi
and causing it to be served on the occupiers (and if it is not present, the local authority). Together
with a suitably worded notice explaining the right to temporary emergency accommodation, and
inviting them to come to court to express their views on that issue at least”.
[28] I am mindful that the court in Changing Tides dealt with eviction, however, I find that
consideration applicable to applicant seeking for demolishment order.
[29] The bar to these considerations should be higher when it is the municipality seeking to
demolish structures used as “ home” by it’s dwellers. This is because, the municipality has a
duty to give effect to the Constitutional right to adequate housing and accommodation to
those dwelling within its area of jurisdiction if granting the demolishment order will render
homeless dwellers thereon, the municipality should advise the court of whether or not it has
alternative or emergency accommodation, this aspect should not be left in the vacuum.
[30] In this case, the court when granting the impugned order was not aware of essential
issues of fact. (i) The court was not aware that this court had already granted an order that the
dispute relating to the land in question should be dealt with in mediation, as the court has
ordered. (ii) The court was not aware that the applicants are the dwellers of the structures to
be demolished, and that such a demolishment will render them homeless. (iii) The court was
not aware that the applicants were not served with the papers of the main proceedings despite
the respondent being aware of their description, and that the impugned order was not served
on them.
[31] The impugned order was thus erroneously granted in the absence, within the meaning
[31] The impugned order was thus erroneously granted in the absence, within the meaning
of rule 42.
17 City of Johannesburg v Changing Tides deal 74 (Pty) Ltd, [2012] ZASCA 116, 2012 (6) SA 294
(SCA) see also Port Elizabeth Municipality V various Occupiers [2004} [2004] ZACC 7, 2005 (1) SA
217 (CC)
[32] I disagree with the respondent’s submission that the issue relating to the
grant of this rescission is mute on the basis that the structure are already
demolished, an order or judgment stands valid and binding until it is set aside.
That therefore means the grant of the rescission of the impugned order is a live
issue.
Consequently, this application should succeed; I see no basis why I should
depart from the common principle that costs follow the result.
Order
[26] In the result the following order is made:-
1. The order granted by this court on 17 December 2024 is rescinded
and is hereby set aside.
2. The respondent is directed to pay costs of this application on scale
“B”.
M MHAMBI
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES:
Attorney for the Applicant : Mr M Notyesi
Instructed by : Mvuzo Notyesi Inc.
MTHATHA
Counsel for the Respondent : Adv. N. Zilwa
Instructed by : P. Conjwa & Associates
MTHATHA
Heard on : 04 December 2025
Judgment Delivered on : 28 January 2026
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