Mihloti and Another v Ekurhuleni Metropolitan Police Department and Another (22/5396) [2022] ZAGPJHC 151 (16 March 2022)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 22/5396

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

16/3/2022

In the matter between:

MIHLOTI, ROSE MILANI

First Applicant

VUYISILE, NDINISA HACKLY

Second Applicant

and

EKURHULENI METROPOLITAN POLICE DEPARTMENT First Respondent

CITY OF EKURHULENI METROPOLITAN MUNICIPALITY Second Respondent

JUDGMENT

MOORCROFT AJ:

Order

[1] The application was argued on 8 March 2022 and I handed down the following order on 9 March 2022:

“1. The application is dismissed;

2. The applicants are ordered to pay the costs of the application, and are liable jointly and severally the one paying the other to be absolved.”

[2] The reasons for the order follow below.

Introduction

[3] The applicants’ approached to the Court on an urgent basis for the following relief:

(Please refer to PDF for picture)

[4] In the founding affidavit reference is made to a number of applicants listed in separate documents, but only two applicants can be identified namely the deponent to the founding affidavit and the deponent to the confirmatory founding affidavit. The applicants are listed as follows in the application:

1. Jabulani

2. Dulan Shipalana

3. Sihle

4. Sphe

5. Jimmy

6. Mtshweni Phillimon

7. Khaya

8. Jabu

9. George Maluleke

10. Mike Mashala

11. Rose Milani

[5] The correct name of the first respondent is the Land Invasion Unit and it is an organ of the second respondent, the City of Ekurhuleni Metropolitan Municipality. The incorrect citation does not give rise any prejudice.

[6] The deponent to the founding affidavit informs the Court that she occupied the land in question in April 2021. The occupiers were then evicted on various dates between October 2021 and February 2022.

[7] The deponent alleges that the land in question was owned by a farmer, the late Erasmus who vacated and abandoned the farm in 1992 when all of his possessions were stolen. The land was then vacant from 1993 until 2021 when the deponent occupied it.

[8] If the land was indeed the property of a third party, the third party or his/her estate would have to be cited as a respondent in the application. I am however advised by counsel for the respondents and this also appears from the answering affidavit that the property belongs to the second respondent and is Council land.

[9] The applicants do not meaningfully describe the land in question. The second respondent filed an answering affidavit confirming that the application relates to erven 1820, 1821 and 1822 Esselen Park Ext 3. The land was vacant. The respondent’s deponent (the Acting Divisional Head, Corporate Legal Department) denies that the unlawful occupiers were ever in undisturbed possession of the property.

[10] Land invasion is a frequent occurrence in Ekurhuleni and the second respondent established a specialised unit called the Land Invasion Unit. This would be the real name of the entity cited as the first respondent, but it is merely an organ of the second respondent, and need not be cited separately.

[11] The Land Invasion Unit patrols the second respondent’s land on a daily basis to intercept people attempting to invade the land. In this fashion members of the Land Invasion Unit prevented unlawful occupiers from unlawfully erecting illegal structures on the land during January 2022.

[12] The applicants do not have a clear right, or even a prima facie right for the purposes of an interim interdict, to occupy the land in question. They do not allege or describe any such right to occupation. The deponent to the answering affidavit points out that even on the applicants’ own evidence, they occupied the land without any entitlement to do so.

[13] There are a number of other problems with the relief sought. The description of the land as the ‘land of the deceased farmer’ cannot be sensibly interpreted. In prayer 3 damages are claimed on application but no case is made out for damages and in any event, motion proceedings in the Urgent Court are not a suitable forum for a damages claim. In prayer 4 the applicants seek an order that the respondents be directed to “restore the applicants” and the prayer is too vague for sensible interpretation. Similarly, prayers 5 and 6 cannot be meaningfully interpreted.

[14] The applicants also elected not to file a replying affidavit dealing with the pertinent allegations made in the answering affidavit.

[15] I therefore made the order as set out above.

J MOORCROFT

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

JOHANNESBURG

Electronically submitted

Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 16 March 2022

ATTORNEY FOR THE APPLICANTS:

Ms M K Bareki

INSTRUCTED BY:

Kagiso Rakhuba Attorneys

COUNSEL FOR RESPONDENTS:

S Zimema

INSTRUCTED BY:

Renqe Fa Inc Attorneys

DATE OF THE HEARING:

8 March 2022

DATE OF ORDER:

9 March 2022

DATE OF JUDGMENT:

16 March 2022