Mpaka and Others v KSD Local Municipality and Another (3627/2015) [2017] ZAECMHC 24 (11 July 2017)

Mpaka and Others v KSD Local Municipality and Another (3627/2015) [2017] ZAECMHC 24 (11 July 2017)

The court found that the order of 17 November 2011 did not apply to the applicants, as they were neither named nor properly identified as respondents. The procedure adopted by the Department in executing the demolition without a fresh court order violated section 26(3) of the Constitution, which requires judicial oversight before eviction or demolition. The letter from the Department to the Municipality did not constitute an unlawful delegation of power, but merely a request for assistance. The demolished structures were incomplete and unoccupied, making damages a more appropriate remedy than restitution. The applicants were substantially successful and entitled to costs, except for costs...

Citation
[2017] ZAECMHC 24
Parties
Applicant: Patrick S. Mpaka; Applicant: Simlindile Mnamatha; Applicant: Xolisa Bantshi; Applicant: Nolwando Litholi; Respondent: KSD Local Municipality; Respondent: Department of Rural Development and Rural Reform
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
11 July 2017
Case Number
3627/2015
Procedural Posture
Urgent Application / Final Judgment After Urgent Application
Outcome
Application granted in part; demolition declared unlawful; costs awarded as specified.
Judges
SM Mbenenge
Legal Topics
Eviction Without Court Order, Section 26 3 Constitution, Identification of Parties, Unlawful Demolition, Costs Award
Land and Property Constitutional Law Civil Procedure Eviction Without Court Order Section 26 3 Constitution Identification of Parties Unlawful Demolition Costs Award

Case Brief

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Parties

Patrick S. Mpaka

Applicant

Simlindile Mnamatha

Applicant

Xolisa Bantshi

Applicant

Nolwando Litholi

Applicant

KSD Local Municipality

Respondent

Department of Rural Development and Rural Reform

Respondent

Procedural Posture

Urgent Application / Final Judgment After Urgent Application

Legal Issues

  1. 1 Whether the demolition of the applicants' structures without a court order was unlawful.
  2. 2 Whether the court order of 17 November 2011 applied to the applicants.
  3. 3 Whether the letter from the second respondent constituted an unlawful delegation of power.

Ratio Decidendi

The court found that the order of 17 November 2011 did not apply to the applicants, as they were neither named nor properly identified as respondents. The procedure adopted by the Department in executing the demolition without a fresh court order violated section 26(3) of the Constitution, which requires judicial oversight before eviction or demolition. The letter from the Department to the Municipality did not constitute an unlawful delegation of power, but merely a request for assistance. The demolished structures were incomplete and unoccupied, making damages a more appropriate remedy than restitution. The applicants were substantially successful and entitled to costs, except for costs...

Court Disposition

Application granted in part; demolition declared unlawful; costs awarded as specified.

Orders

  • The demolishment of the applicants’ structures by the second respondent on 07 December 2015 is declared unlawful.
  • Subject to paragraphs (c) and (d), the first and second respondents shall pay costs of the application jointly and severally, the one paying, the other to be absolved.