Dambuza and Others v Mvandaba and Others (5899/2018) [2019] ZAECMHC 58 (15 October 2019)

Dambuza and Others v Mvandaba and Others (5899/2018) [2019] ZAECMHC 58 (15 October 2019)

The court found the applicants' factual averments credible and rejected the respondents' denials as far-fetched and untenable. The applicants established clear rights to the land, either directly or through descent, supported by historical documents and uncontested PTOs. The respondents failed to show how the applicants lost their rights or that the land was transferred to them. The applicants' constitutional right to protect their insecure tenure was affirmed. The failure to cite alleged parties with substantial interest was immaterial, as no remedy was sought against them and their involvement was not established. The requirements for a final interdict were met: a clear right, injury...

Citation
[2019] ZAECMHC 58
Parties
Applicant: Sandi Dambuza; Applicant: Mlamli Kwatsa; Applicant: Peter Dambuza; Applicant: Lwazi Ngxabani; Applicant: Abongile Sikiti; Applicant: Sobhuza Msikinya; Applicant: Velile Vincent Dambuza; Applicant: Thanduxolo Godlo; Applicant: Dodo Msikinya; Applicant: Sandile Mkhuzangwe; Respondent: Mthunzi Mvandaba; Respondent: Mbasa Siphuka; Respondent: Sikhumbule Xabanisa; Respondent: Vuyolwethu Hani; Respondent: Mr Dyubele; Respondent: Other persons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy the commonage owned by the applicants, Butterworth
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
15 October 2019
Case Number
5899/2018
Procedural Posture
Urgent Application / Confirmation of Rule Nisi and Final Interdict
Outcome
The application succeeds. The rule nisi is confirmed. Costs are awarded against the first to fourth respondents.
Judges
M.S. Jolwana
Legal Topics
Final Interdict, Locus Standi, Unlawful Occupation, Costs Award, Colonial Land Tenure
Land and Property Civil Procedure Final Interdict Locus Standi Unlawful Occupation Costs Award Colonial Land Tenure

Case Brief

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Parties

Sandi Dambuza

Applicant

Mlamli Kwatsa

Applicant

Peter Dambuza

Applicant

Lwazi Ngxabani

Applicant

Abongile Sikiti

Applicant

Sobhuza Msikinya

Applicant

Velile Vincent Dambuza

Applicant

Thanduxolo Godlo

Applicant

Dodo Msikinya

Applicant

Sandile Mkhuzangwe

Applicant

Mthunzi Mvandaba

Respondent

Mbasa Siphuka

Respondent

Sikhumbule Xabanisa

Respondent

Vuyolwethu Hani

Respondent

Mr Dyubele

Respondent

Other persons whose identities are to the applicants unknown and who have attempted or are threatening to unlawfully occupy the commonage owned by the applicants, Butterworth

Respondent

Procedural Posture

Urgent Application / Confirmation of Rule Nisi and Final Interdict

Legal Issues

  1. 1 Whether the applicants have established the requirements for a final interdict.
  2. 2 Whether the applicants have locus standi to protect their rights to the land.
  3. 3 Whether parties with substantial interest were required to be cited.

Ratio Decidendi

The court found the applicants' factual averments credible and rejected the respondents' denials as far-fetched and untenable. The applicants established clear rights to the land, either directly or through descent, supported by historical documents and uncontested PTOs. The respondents failed to show how the applicants lost their rights or that the land was transferred to them. The applicants' constitutional right to protect their insecure tenure was affirmed. The failure to cite alleged parties with substantial interest was immaterial, as no remedy was sought against them and their involvement was not established. The requirements for a final interdict were met: a clear right, injury...

Court Disposition

The application succeeds. The rule nisi is confirmed. Costs are awarded against the first to fourth respondents.

Orders

  • The applicants’ late filing of the replying affidavit is condoned.
  • The rule nisi is confirmed.