Ulundi Municipality v Mpungose and Others (6551/2020) [2025] ZAKZPHC 73 (24 July 2025)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU NATAL DIVISION

PIETERMARITZBURG

CASE NO: 6551/2020

Before: Honourable Ncube J

Heard on: 14 April 2025

Delivered on: 24 July 2025

In the matter between:

ULUNDI MUNICIPALITY Applicant

and

INDUNA MPUNGOSE

1st Respondent

INDUNA NDWANDWE

2nd Respondent

INDUNA NGOBESE

3rd Respondent

INDUNA NXUMALO

4th Respondent

INDUNA LAMULA

5th Respondent

THE UNLAWFUL OCCUIERS OF THE LAND

6th Respondent

INGONYAMA TRUST

7th Respondent

ORDER

In the result. I make the following order:

1. The application for condonation of late filing of the practice note and Heads of Argument is granted.

2. The first to the fifth respondents and any person acting through the first to the fifth respondents are interdicted and prevented from allocating land to individuals in the areas marked with X in annexure ‘’C’’ (‘’the property). to the Notice of Motion

3. The first to the fifth respondents are interdicted and prevented from authorizing persons to build on the property without the approval of the applicant.

4 The sixth respondents ‘’(the respondents’’) and any person acting through the persons falling under the sixth respondents and all other persons (‘’the respondents’’) who are constructing structures and those preparing to put up structures on the property in the areas identified in the photographs attached to the founding affidavit marked ‘’HI’’ to ‘’H8’’ are directed to dismantle and remove the structures and all the building material on the property within five days of this Order, save for completed structures.

5 The respondents are hereby interdicted from continuing with the building of structures on the property.

6 Should the respondents fail to dismantle the structures within three months of this order the applicant is granted permission to dismantle and demolish the structures and remove any building material shown in the photographs marked ‘’H1’’

to ‘’H8’’, to the founding affidavit.

7 The first to the sixth respondents are interdicted and prevented from encouraging, inciting or purporting to give permission to others to occupy or erect structures on the property without the prior permission of the applicant.

8 The respondents and all other persons are interdicted from carrying out any further construction work, including but not limited to levelling the land, building blocks, bringing building material to the property and from erecting any structure on the property;

9 The respondents are interdicted and restrained from:

9.1 entering upon or remaining upon the property; for the purpose of putting up unauthorised buildings or structures

9.2 encouraging other people to enter upon or settle on the property for purpose of putting up unauthorised buildings or structures.

10. The applicant is directed to publish the contents of this order in the local newspaper, the local radio station and by putting it up in the notice boards of the Municipal building.

11. The first to third and the fifth and the seventh respondents are jointly and severally, the one paying the other to be absolved, are directed to pay the costs of the application on the scale ‘’C’’.

JUDGMENT

NCUBE J

Introduction

[1] This is an application for a final interdict. The applicant (’the Municipality’’) seeks relief restraining first to fifth respondents from allocating land to people, including members of the sixth respondent (’ unlawful occupiers’). The municipality also seeks an interdict, in the form of mandamus, directing the unlawful occupiers to dismantle the structures already erected on the municipal land without authority. At the hearing of the application, Mr Kuboni, Counsel for the Municipality, indicated that the Municipality does not seek demolition of already completed structures.

[2] The first to third and the fifth and seventh respondents opposed the granting of the relief sought. The fourth respondent did not participate in the proceedings and did not file an answering affidavit. The second respondent deposed to an answering affidavit on behalf of himself, first, third and fifth respondents. One Busisiwe Mkhize deposed to an answering affidavit on behalf of the seventh respondent (’Ingonyama Board’’). There was no appearance for the first to third and fifth to sixth respondents at the hearing. An attorney who previously represented the first to third and fifth respondents withdrew. No new attorney came on record. The applicants’ attorney telephoned the previous attorney for first to third and fifth respondents, Mr Motha, who confirmed that izinduna were aware of the hearing date but they were not in attendance. Counsel for the Ingonyama Board was in attendance. The matter continued in the absence of izinduna.

Factual Background

[3] It is not in dispute that izinduna who are under Mpungose Tribal Authority have been allocating sites to certain individuals to build their houses. Izinduna do not deny that they never obtained the permission from the Municipality to allocate sites. They contend that the land in question belongs to Mpungose Tribal Authority and not to the municipality. The Municipality sought on urgent interdict against izinduna. The interim order was, on 07 June 2021, confirmed against the fourth respondent (‘’Induna Nxumalo’’)on the understanding that induna Nxumalo had no authority from either Inkosi Mpungose or from the Mpungose Traditional Council to allocate sites.

[4] It is common cause that the Municipality has a constitutional duty to provide services like houses, water and sanitation to members of the public at local level. The Municipality is also empowered by different pieces of legislation to ensure that structures erected on municipal land are built in accordance with relevant pieces of spatial development framework land use schemes and applicable regulations. It is not in dispute that in allocating sites to members of the public, Izinduna did not obtain approval from the Municipality. The people allocated sites also did not have their building plans approved by the Municipality.

Issues

[5] The application was argued without the benefit of Heads of Argument from the first to third and fifth and sixth respondents as those respondents did not appear but had filed an answering affidavit. The seventh respondent appeared and filed Heads of Arguments. From the answering affidavits it appears that the first to third and fifth respondents are in agreement with the seventh respondent who has raised an issue of non – joinder of the Inkosi Mpungose and the Mpungose Traditional Council. Basically, the respondents contend that the land on which izinduna allocate sites belongs to the Mpungose Traditional Council which is under the authority of the Inkosi Mpungose, that in allocating sites Izinduna act as agents of the Inkosi and the Traditional Council. Respondents therefore argue that relief sought by the Municipality cannot be granted if the Inkosi and the Traditional Council are not before court.

[6] The second issue relates to non – compliance with the National Building Standards Act. Ingonyama Board argues that the proper forum, in terms of section 21 of the National Building Standards Act is the Magistrate’s Court not the High Court. This argument is coupled with the requirement of no other satisfactory remedy in interdict applications. If the Municipality has the option of approaching the Magistrates Court, in terms of section 21, the Board argues, it means the Municipality has an alternative remedy and the order of interdict may not be granted.

Non – Joinder

[7] As stated earlier in this judgement, the respondents contend that Inkosi Mpungose and the Mpungose Traditional council should have been joined as parties is these proceedings. It is trite law that the test whether there has been non – joinder is whether a party has a direct and substantial interest in the subject matter of litigation which may prejudice the party that has not been joined[1] in Gordon v Department of Health[2] it was held that if an order or judgement cannot be sustained without necessarily prejudicing the interests of the third parties that had not been joined those third parties have a legal interest in the matter and must be joined.

Will the Relief Sought Prejudice. The interest of inkosi Mpungose and The Traditional Council.

[8] The answer to the above question depends on whether the Inkosi and the Traditional Council have a right to allocate sites on the land in question. Izinduna as agents of the Inkosi and Traditional Council, cannot enjoy and exercise powers which their principal does not have. It is not in dispute that in 1992, the then Minister of Interior in erstwhile Kwazulu Government extended the township of Ulundi to include certain areas. The land in question is one of those areas. On 01 February 1995 the member of Executive Council for Local Government and Housing in terms of powers vested in him by section 10 of the Local Government Transition Act[3] , established the Ulundi Transitional Local Council. The land in question is therefore under the jurisdiction of Ulundi Municipality. In terms of section 4A (4) of the Ingonyama Trust Act[4], any land which prior to the amendment Act 1997, vested in the Ingonyama in terms of section 3 (1) and which has not been registered in private ownership shall, if the land is situated in a township, vest in the local authority having jurisdiction over such township.

[9] Further, section 4A (5) of the Ingonyama Trust Act provides:

‘’ Any land in a township or any real right in such land shall vest in the local authority having jurisdiction over such township –

(a) if the township exists as such on the date of commencement of the amendment Act, 1997 on such date of commencement, and

(b) if the township is established and approved or proclaimed as such after the date of commencement of the amendment Act 1997, upon such establishment and approval or proclamation.’’

[10] In paragraph 25 of their answering affidavit, the respondents themselves concede that the land originally belonged to Mpungose Traditional Authority and was given over to the Municipality by Inkosi Mbhasobheni Mpungose in 1968. It is clear that the Municipality has a real right in the land in question. The Inkosi and her Traditional Council have no legal interest which may be prejudicially affected if they are not joined in these proceedings. Therefore, there can be no question of non – joinder under those circumstances.

[11] The Ingonyama Trust Board as the seventh respondent also filed its answering affidavit. The Board raised the issue of applicability of the Spatial Planning and the Land Use Management Act[5] (‘’SPLUMA’’) to the areas which are under Traditional Authorities. The Board also contends that the proceedings under the National Building Standards Act, On which the Municipality relies in these proceedings, must be brought in the Magistrate Court. SPLUMA is National Legislation.[6] It came into operation on 01 July 2015. In the year 2000, the whole of South Africa was demarcated into wall-to-wall municipalities. Consequently, the entire land in South Africa was included in a certain municipality. Municipalities were then required to extend their planning and land use management beyond the traditional township boundaries. SPLUMA applies to all land in South Africa including tribal land although it is not strictly enforced in tribal areas.

[12] Section 2 (1) of SPLUMA provides:

‘’2 (1) This Act applies to the entire area of the Republic and is legislation enacted in terms of -

(a) section 155 (7) of the Constitution insofar as it regulates municipal planning; and

(b) Section 44 (2) of the Constitution insofar as it regulates provincial planning.

(2) Except as provided for in this Act, no legislation not repealed by this Act may prescribe an alternative or paralled mechanism measure, institution or system on spatial planning, land use land use, land use management and land development in a manner inconsistent with the provisions of this Act’’

it is clear that SPLUMA applies even to tribal areas. In any event, the land in question is now under the management of Ulundi municipality, so either way, SPLUMA applies to that land. The Municipality therefore, has a clear right to apply for the relief it seeks.

[13] Section 32 of SPLUMA gives the Municipality a right to enforce compliance with its land use scheme. It provides:

‘’32 (1) -----------

(2) A Municipality may apply to a court for an order ---

(a) interdicting any person from using land in contravention of its land use scheme;

(b) authorising the demolition of any structure erected on land in contravention of its land use scheme without any obligation on the municipality or the person carrying out the demolition to pay compensation; or

(c) directing any other appropriate preventative or remedial measure’’

I conclude therefore, that the municipality is within its right to apply for interdict in the circumstances of this case

Is There Any Other Effective Alternative Remedy?

[14] The Board contends that the municipality should have approached the magistrate court in terms of the National Building Regulations and Building Standards act[7] (‘’the National Building Standards Act’’). That act makes it an offence to put up any building in respect of which plans and specifications are to be drawn and submitted without prior written approval of the Local Authority[8]. Section 21 of the said Act confers jurisdiction on the magistrate, on application by the local authority or the Minister to prohibit commencement or proceeding with erection of a building contrary to the provisions that Act. In my view, section 21 does not oust the jurisdiction of the High Court which has inherent jurisdiction to grant interdicts, unlike a magistrate court, a creature of statute whose powers are confined to the statute creating it. In any event, because of the draconian nature of the powers vested in a magistrate to order demolition of the building, section 21 only ensures judicial oversight which does not oust the jurisdiction of the High Court. In my view, there is no any other effective remedy available to the Municipality. The Municipality has therefore satisfied all the requirements of a final interdict.

Application For Condonation For The Late Filing Of Heads Of Argument.

[15] The Ingonyama trust Board, filed an application for condonation for the late filing of both the practice note and Heads of Argument. The application was not opposed. The reason for the lateness, according to the founding affidavit, is that the parties were attempting a settlement which was unsuccessful. I have no reason not to accept that explanation.

Costs

[16] The first, second, third and fifth respondents opposed this application and filed their answering affidavit. The Ingonyama Trust Board, despite the fact that no relief was sought against it, also opposed the application and filed the answering affidavit. Therefore, all respondents who opposed the application, are liable to pay the costs incurred by the municipality.

Order

[17] In the result, I make the following order:

1 The application for condonation of late filing of the practice note and Heads of Argument is granted.

4. The sixth respondents ‘’(the respondents’’) and any person acting through the persons falling under the sixth respondents and all other persons (‘’the respondents’’) who are constructing structures and those preparing to put up structures on the property in the areas identified in the photographs attached to the founding affidavit marked ‘’HI’’ to ‘’H8’’ are directed to dismantle and remove the structures and all the building material on the property within five days of this Order, save for completed structures.

5. The respondents are hereby interdicted from continuing with the building of structures on the property.

6. Should the respondents fail to dismantle the structures within three months of this order the applicant is granted permission to dismantle and demolish the structures and remove any building material shown in the photographs marked ‘’H1’’

to ‘’H8’’, to the founding affidavit.

7. The first to the sixth respondents are interdicted and prevented from encouraging, inciting or purporting to give permission to others to occupy or erect structures on the property without the prior permission of the applicant.

8. The respondents and all other persons are interdicted from carrying out any further construction work, including but not limited to levelling the land, building blocks, bringing building material to the property and from erecting any structure on the property.

9. The respondents are interdicted and restrained from:

a. entering upon or remaining upon the property; for the purpose of putting up unauthorised buildings or structures

b. encouraging other people to enter upon or settle on the property for purpose of putting up unauthorised buildings or structures.

10. The applicant is directed to publish the contents of this order in the local newspaper, the local radio station and by putting it up in the notice boards of the Municipal building.

11 The first to the third and the fifth and the seventh respondents are jointly and severally, the one paying the other to be absolved, are directed to pay the costs of the application on the scale ‘’C’’.

NCUBE MT

Judge

Land Court

APPEARANCES:

For the Applicant: Adv. WS Kuboni SC Instructed by: Zuma and Partners incorporated Morningside DURBAN For the 7th Respondent: Adv. DP Crampton Instructed by: Ngcamu Attorneys Incorporated 229 Hoosen Hafejee Street PIETERMARITZBURG

[1] Absa Bank Ltd v Naude NO and Others 2016 (6) SA 540 (SCA) Para 10

[2] [2008] ZASCA 99; 2008 (6) SA 522 (SCA) Para 9

[3] Act 209 of 1993

[4] Act 3KZ of 1994

[5] Act 16 of 2013

[6] Published in Government Gazette No 36730 of date 05 August 2013

[7] Act 103of 1977

[8] See section 19 (2)