Walter Sisulu Local Municipality v Mdumise and Others ; Provincial Government; Eastern Cape Province v Member of the Executive Council Department of Human Settlements, Province of the Eastern Cape and Others (423(a)/2020; 509/2020) [2020] ZAECGHC 28 (24 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 423(a)/2020

In the matter between:

WALTER SISULU LOCAL MUNICIPALITY

Applicant

And

MXOLISI MDUMISE

First Respondent

MSOKOLI JAN

Second Respondent

ZUZANI MASINA

Third Respondent

XOLANI MABUSELA

Fourth Respondent

ALL THE OTHER PERSONS WHO ARE NOT

SPECIFICALLY NAMED HEREIN AND WHO

ARE UNLAWFULLY INVADING ERF 1,

ALIWAL NORTH

Fifth and Further Respondents

THE STATION COMMANDER: ALIWAL NORTH

POLICE STATION Sixth

Respondent

AND

CASE NO: 509/2020

THE PROVINCIAL GOVERNMENT, EASTERN

CAPE PROVINCE

First Applicant

THE MEMBER OF THE EXECUTIVE COUNCIL

DEPERTMENT OF HUMAN SETTLEMENTS,

PROVINCE OF THE EASTERN CAPE

Second Applicant

THE HEAD OF THE DEPARTMENT OF HUMAN

SETTLEMENTS, EASTERN CAPE

Third Applicant

MXOLISI MDUMISE

First Respondent

XOLANI MABUSELA

Fourth Respondent

POLICE STATION

Fifth Respondent

CERTAIN CURRENT AND FUTURE INVADERS OF

PORTION 12 OF THE FARM BUFFELS VALLEI NO. 60 Sixth Respondent

JUDGMENT

BESHE J:

[1] The two applications albeit by different applicants are against essentially the same respondents. First to fourth respondents are the same in both matters. Both matters are concerned with unlawful occupation of land in respect of Erf 1, Aliwal North and the remaining portion of Portion 12 of Farm Buffels Vallei no. 60, also in Aliwal North respectively.

[2] Rules nisi were issued against the respondents on the 25 February and 3 March 2020 respectively, calling upon respondents in particular first to fifth respondents, to show cause why they should not be interdicted and restrained from inter alia entering the said properties for the purposes of invading them and attempting to occupy and or erect structures thereon, interdicted and restrained from inciting and or persuading others to illegally enter the said properties and from erecting any structures on the said properties.

[3] The application papers were duly served on the respondents. They however did not signal their intention to oppose the applications. On the return date being the 17 March 2020 first to fourth respondents appeared in person. They intimated that they were not opposed to the confirmation of the orders. They were however opposed to orders that they pay the costs of the applications.

[4] Part of applicants’ prayer in both matters was that the first to fifth respondents should be ordered to pay the costs of the application jointly and severally the one paying the other to be absolved. Even though the respondents did not offer any resistance to the application, it was argued on behalf of the applicants that the applicants were still entitled to the costs of the application because they had approached the court to safeguard / enforce their rights. Further that the first to fourth respondents should have known that they are acting unlawfully being councillors of Walter Sisulu Local Municipality. Applicants in the first of the two matters.

[5] Fourth respondent, presumably referring to the latter of the two matters, pointed out that there is no indication of what he is alleged to have done / the role he played. It is indeed so that in respect of matter number 509/2020, the respondents were not identified. The applicant’s case in this regard was based on the following allegations as per the founding affidavit:

“[34] On Monday the 17 February 2020 it was observed that unnamed persons had invaded the property (as a flow-over from an invasion of adjacent land) and that such persons had positioned on the property poles (presumably intended to indicated (sic) beacons) together with (at certain portions) a rope which demarcated specific “plots”.

[37] Having regard to the allegations made under case number 423/2020 the inescapable inference is that invaders acting in cohorts with the First to Fourth Respondents are unlawfully attempting to allocate for themselves portions of land situated on the Property which clearly is intended for future use by eventually constructing shacks, structures and/or homes on the Property.”

[6] Even though the confirmation of the rules nisi are not opposed in respect of both matters, I am inclined to agree that there is no direct evidence apart from the inference that the court is invited to draw that the first to fourth respondents together with further respondents invaded the land in question (Farm Buffels Vallei), because they were observed on an earlier date invading land adjacent thereto (property in respect of Case No. 423(a)/2020).

[7] First to fourth respondents also submitted that they would not be able to pay costs – they did not have the means to do so.

[8] It is trite that the purpose of a costs order is to indemnify a successful party who has incurred expenses in instituting or defending an action / application. Trite also is the principle that the award of costs is in the court’s discretion - which discretion should be exercised judicially upon a consideration of the facts of the case.

[9] The circumstances of both matters is that the respondents – first to fourth, do not oppose the granting of the relief sought. They are lay litigants. They appeared in person. They are not possessed of means to meet a costs order. The applicants are Local Municipality and Provincial Government Department respectively.

[10] In the circumstances, it will be fair and just in my view, to order that each party should pay its own costs in respect of both matters.

[11] Accordingly the rules nisi that were issued on the 25 February 2020 and 3 March 2020 respectively are hereby confirmed. Each party is to pay its own costs.

___________________

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

(In respect of Case No. 423(a)/2020)

For the Applicants : Adv: S H Cole

Instructed by : MBABANE MASWAZI & MKOSANA INC

C/o MESSRS WHITESIDES

53 African Street

GRAHAMSTOWN

Ref.: Mr G Barrow

Tel.: 046 – 622 7117

For the Respondents: RESPONDENTS IN PERSON

(In respect of Case no. 509/2020)

For the Applicants : Mr. G Barrow

Instructed by : THE STATE ATTORNEY

Date Heard : 17 March 2020

Date Reserved : 17 March 2020

Date Delivered : 24 March 2020