IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, MTHATHA

CASE NO.

In the matter between:

NOMAKHWEZI MTSHIZANA –BASE First Applicant

BUYISWA ZWEDALA Second Applicant

MBIKO LINDISWA Third Applicant

NOBELUNGU LUMKWANA Fourth Applicant

LIHLELI LUMKWANA Fifth Applicant

LELETHU LUMKWANA Sixth Applicant

MBAMBELELI SIWAPI Seventh Applicant

and

NOSIZWE MAXHWELE First Respondent

ONKE NYATHI Second Respondent

VUYANI MADUBELA Third respondent

THEMBISILE MKHANZI Fourth respondent

MTETELELI MKHOHLI Fifth Respondent

SISA MANYADU Sixth respondent

KING SABATA-DALINDYEBO LOCAL MUNICIPALITY Seventh Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

NOMAKHWEZI MTSHIZANA-BASE
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do hereby make an oath and state as follows:

1. I am an adult female person residing at Phase 1 Bhongweni Location,

Zimbane Administrative Area in the district of Mthatha.

2. The facts to which I depose in this affidavit are within my knowledge,

true and correct.

3. I am authorized by the other applicants to institute and prosecute this

application on their behalf.

I PARTIES

4. I am the first applicant.

5. The second applicant is Buyiswa Zwedala, an adult female.

6. The third applicant is Mbiko Lindiswa, an adult female.

7. The fourth applicant is Nobelungu Lumkwana, an adult female. She

sues in her capacity as the mother and natural guardian of the 2 (two)

minor children: (i) Siphenathi Lumkwana a 14 (fourteen) year old boy;

and (ii) Zubenathi Lumkwana, a 3 (three) year old boy.

8. The fifth applicant is Lihleli Lumkwana, an adult male.

9. The sixth applicant is Lelethu Lumkwana, an adult female.

10. The seventh applicant is Mbambeleli Siwapi, an adult male.

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11. The applicants reside at Phase 1 Bhongweni Location, Zimbane

Administrative Area in the district of Mthatha.

12. The first respondent is Nosizwe Maxhwele, an adult female and

headwoman of Zimbane Administrative Area, Mthatha. She lives at a

place colloquially known as “Komkhulu” which translates to the “Great

Place”.

13. The second respondent is Onke Nyathi, an adult male.

14. The third respondent is Vuyani Madubela, an adult male.

15. The fourth respondent is Thembisile Mkhanzi, an adult male.

16. The fifth respondent is Mtelele Mkhohli, an adult male. He is the sub-

headman and falls under the authority of the first respondent. His

further particulars are unknown to the applicants.

17. The sixth respondent is Sisa Manyadu, an adult male.

18. The second, third, fourth, fifth and sixth respondents are, save for the

sixth respondent who is known to be a project manager performing

various construction projects under the first respondent’s authority,

members of a committee that has been established by the first

respondent and their full and further particulars are not known to me.

All of them reside in Zimbane Administrative Area, Mthatha.

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19. The seventh respondent is King Sabatha Dalindyebo Local

Municipality, a municipality established as such in terms of s 12 of the

Local Government: Municipal Structures Act, 1998 (Act No. 117 of

1998), and which has its address for the purposes of section 115(3) of

the Local Government: Municipal Systems Act, 2000 (Act No. 32 of

2000) at the office of the Municipal Manager, Munitata Building,

Sutherland Street, Mthatha.

20. The Municipality is the owner of the remainder of Erf 912, Mthatha and

is the municipality under which the Zimbane Administrative Area is

demarcated. For the sake of completeness, I have attached to this

affidavit a copy of the deed of transfer in favour of the Municipality and

same is marked annexure MBN 1. We seek no relief against the

Municipality. It is merely cited as an interested party to the application.

II JURISDICTION

21. The respondents reside within the area of jurisdiction of this Court.

22. The cause of action arose within the area of jurisdiction of this Court.

III LOCUS STANDI

23. The applicants bring this application in terms of s 38 of the

Constitution of the Republic of South Africa, 1996 (Act No. 108 of

1996) (“Constitution”): (i) in their own interest; and (ii) in the public

interest.
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24. The conduct complained of in this application is prevalent in the

Zimbane Administrative Area, Mthatha and more specifically in an

area known as Bhongweni. Many people have fallen victim of this

conduct. It is prevalent and is ongoing. Unfortunately, like us, the

applicants in this application, they are a people of low or no income

levels at all. In consequence, they have not been able to pursue their

disputes before this Court.

25. When they would have approached the Magistrate Court and the

Legal Aid Board it is not farfetched to conclude that their disputes may

have been met with the same outcome as mine. Herein below, I

explain to the Court what happened to me and to the other applicants

when I took a similar dispute to the Magistrates’ Court, the police and

the Legal Aid Board. Importantly, relief that seeks to deal with the

applicants’ complaint only and exclude the broader society of the

Bongweni area in Zimbane Administrative Area, will not only be

narrow but could see to the proliferation of similar complaints to this

Court. In these circumstances, it is proper that the respondents be

interdicted not just as against the applicants, but from conducting

themselves in the manner complained of even in relation to other

people who may not be parties herein.

IV NATURE OF THE APPLICATION

26. This is an urgent application seeking the relief that is fully set out in
 6

the notice of motion. It seeks to prevent ongoing machinations that if

unhindered, will ensure our illegal eviction from our homes. It is also

sought that in the event of us being successful, in the execution of the

order sought in this application, the sheriff of this Court, if need be, be

assisted by members of the South African Police Service.

V BACKGROUND

27. Before I get into the merits of this application I wish to set out the

background of the area in which we are living and from which the

respondents, save for the seventh respondents, seek to illegally evict

us.

28. In the early 1990’s the people of Zimbane Phase 1 moved and

occupied vacant land in Zimbane Administrative Area. Some of the

land was close to an area falling under the late Chief Baleni who gave

the land to the people to build and erect a community that would be

later named Bhongweni Phase 1. The rest of the plots were bought by

some community members from a family that was believed to own the

land. Both of these areas are today collectively known as Bhongweni,

Phase 1. I also bought a plot in 1992 on the area that was not part of

Chief Baleni’s area of authority and built my home in Bhongweni,

Phase 1. I have no written record of the purchase, but I still live there

today. This arrangement for the acquisition and exchange of plots of

land was in accordance with the acceptable tribal norm and customary
 7

practice of the community at the time. The traditional authorities of the

day were aware of it and thus since then, I and many other residents

like me have had undisturbed use and enjoyment of the land. Through

the same means, I also acquired another plot, the details of which will

be canvassed in full below. I will also detail below the circumstances

of the second and the third applicants.

29. Despite the fact that I, second and third applicants do not have a

formal title deed for our plots, our rights in these properties are

protected under the Interim Protection of Informal Land Rights Act,

1996 (Act No. 31 of 1996) (as amended) (“IPILRA”). In terms of

IPILRA I have an informal right in the land as we have had –

(a) the use of, occupation of, or access to land in terms of –

(i) any tribal, customary or indigenous law or practice of a

tribe;

(ii) the custom, usage or administrative practice in a particular

area or community, where the land in question at any time

vested in –

(aa) …….

(bb) …….

(cc) the governments of the former Republics of

Transkei, Bophuthatswana, Venda and Ciskei;

(b) …
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(c) beneficial occupation of land for a continuous period of not less than

five years prior to 31 December 1997.

30. The sites in Bhongweni have not been properly subdivided. As such,

the subdivision of plots has not been registered with the deeds office.

The area in which our plots are situated form part of the Remainder of

Erf 912, Mthatha and it belongs to the Municipality. The title deed to

this property is already attached as NMB1. Despite the fact that

nobody has title deeds on this property, we have lived in relative

undisturbed possession of the land since the 1990s. We have never

been told to leave by the Municipality.

31. The previous headman in the area was the first respondent’s husband.

After his death death somewhere in 2011 or 2012, the first respondent

came to power, as a regent, in the place of her son who has not yet

come of age.

32. On or about 2008 I acquired a plot from my sister in-law, who was

then relocating. The plot is adjacent to the one I bought in 1992. At the

time of receiving the plot, there was a 2 (two) roomed half structure

with no roof, doors or fences. Between 2008 and 2012 I fenced the

site, put up a gate and completed the structure by erecting a roof and

fitting doors. In 2012 there was a break-in into the 2 (two) roomed

structure. After the break-in I decided to use this site for rental

purposes so that there would be people on the site. Since this

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decision, I rented it to the fourth and fifth applicants together with their

minor children and the sixth applicant.

33. The fourth and fifth applicant’s minor children attend school near the

plot on which they reside and the impending eviction is threatening

their ability to attend their current school and is not in the best interest

of the children. They are living in constant fear of the conduct of the

first to the sixth respondents as their home is being destroyed around

them.

VI LAND CLAIM

34. The Remainder of Erf 912 is subject to a land claim in terms of the

Restitution of Land Rights Act, 1994 (Act No. 22 of 1994) (Restitution

Act). The land claimants are the Kwalindile and Zimbane

Communities. It is a matter of common knowledge that they both

lodged land claims with the Eastern Cape Regional Land Claims

Commissioner during the course of 1998 or thereabout.

35. Both claims were investigated and validated by the Land Claims

Commission. As far as I am aware, both claims have been accepted

by both the Commission and the Minister of Rural Development and

Land Reform. On 19 November 2007 the Commission published, for

general notice, the claims in terms of section 11(1) of the Restitution

Act. The land claims have been the subject of extensive litigation, but

for purposes of this application, it is important that the Court take

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notice that the claim has not yet been finalized.

36. Once a claim has been published in the gazette, as in the case of the

Remainder of Erf 912, Mthatha, the Restitution Act places certain

limitations on the use of the land. Section 7 of the Restitution Act

states:

(7) Once a notice has been published in respect of any land –

(a) no person may in an improper manner obstruct the passage of the

claim;

(aA) no person may sell, exchange, donate, lease, subdivide, rezone or

develop the land in question without having given the regional land claims
commissioner one month’s written notice of his or her intention to do so,
and, where such notice was not given in respect of –
(i) any sale, exchange, donation, lease, subdivision or
rezoning of land and the Court is satisfied that such sale,
exchange, donation, lease, subdivision or rezoning was
not done in good faith, the Court may set aside such sale,
exchange, donation, lease, subdivision or rezoning or
grant any other order it deems fit;

(ii) any development of land and the Court is satisfied that

such development was not done in good faith, the court
may grant any order it deems fit;

(b) no claimant who occupied the land in question at the date of

commencement of this Act may be evicted from the said land without the
written authority of the Chief Land Claims Commissioner;

(c) no person shall in any manner whatsoever remove or cause to be

removed, destroy or cause to be destroyed or damage or cause to be
damaged, any improvements upon the land without the written authority
of the Chief Land Claims Commissioner;

(d) no claimant or other person may enter upon and occupy the land
without the permission of the owner or lawful occupier.

VII EVENTS NECESSITATING THIS APPLICATION

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37. Since coming to power in 2011/2012, the first applicant has gradually

been taking land from the people in the area of Bhongweni, claiming

that it belongs to the Chiefdom. She has claimed various sites in the

area and has sold them to rich buyers who use the land for property

development.

38. On or about January 2018 I received a WhatsApp message from Mr

Mkhohli, the sub-headman, informing me that I must vacate my house

and the tenants should too as the land belongs to the first respondent.

I then called Mr Mkhohli to inquire about the message. He advised that

I must release the said site because people from the first respondent’s

committee (“the Committee”) wanted to use the site. I refused to sell

the site or vacate the properties.

39. In February 2018 I received a letter from the first respondent advising

me to evict the tenants from the site. I went to the Great Place where

the first respondent is resident. I was accompanied by my tenants. I

was advised by the first respondent and the committee that the site

belongs to the Chiefdom. I advised them that I received the site from

my late sister-in-law, Xoliswa Rhayi. I no longer have a copy of this

letter as the committee members took the letter when I attended the

meeting.

40. I heard nothing more from the first respondent and in March 2018 I

called Mr Mkhanzi, the Chairperson of the Committee. He advised

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that I was supposed to pay what is called ubusa eNkosini. This is an

amount of R10 000 that has to be paid to the first respondent in order

to keep the plot. I did not have this money and even if I did, I did not

feel like it was right of me to pay R10 000 to someone who has no

right over the property.

41. In June 2018 I spent some time in hospital in Johannesburg. Upon my

return on 9 June 2018, the fourth applicant advised me that the

second, third and fourth had told her to vacate the plot and that it

belongs to the Chiefdom. She did not. On 10 June 2018, a contractor

led by the sixth respondent came to my plot, on which the fourth and

fifth applicants together with their minor children and the sixth

respondent reside, and started to dig. When I made my enquiries from

those behind the digging, the sixth respondent said he had been

employed by the first respondent to build a project for her. I went to

report this conduct at the Mthatha Central Police Station where I was

advised that I needed to obtain the services of an attorney. The police

did not want to interfere and stop the contractors from building which

was very frustrating to me. They informed me that my complaint fell

outside their domain as it was something in relation to a civil dispute.

42. The contractors, who are acting on direction and authority of the first

respondent, are currently busy building a structure on my site. They

have offloaded bricks, cement, and sand and they have put the brick

stone in my yard and planted a water pipe and started erecting a brick
 13

wall around the site. A photo of the wall that has been built is attached

hereto as MBN2. In the process of erecting this wall, they damaged

some of the water pipes that run to my own home and I consequently

do not have access to running water in my home. I am not sure

whether this was done intentionally or by accident, but the ongoing

construction work is impacting on the use and enjoyment of the

property in which I reside.

43. The fourth and fifth applicants together with the minor children and the

sixth applicant are currently being threatened to vacate the house as

the first respondent says that the site now belongs to the Chiefdom.

Moreover, the property is fenced by the contractors and the tenants

cannot exercise their freedom of movement as the Chief’s contractors

have locked the gates of the said property.

44. On 12 June 2018 I approached an attorney in Mthatha for legal

assistance. The attorneys addressed correspondence to the Chief

instructing her not to interfere with my site. A copy of the letter is

attached and marked annexure MBN3.

45. The sixth respondent and his employees continued to work on the site

on instruction of the first respondent and on 27 June 2018 my

attorneys filed an urgent application in the Magistrate’s Court in

Mthatha to interdict the first respondent from continuing to interfere

with my site. The application was dismissed as it seems like the

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attorneys had incorrectly pleaded the requirements for an urgent

interdict. For the sake of completeness, a copy of the order is attached

and is marked MBN4.

46. On 6 July 2018 the contractor closed the gate to the plot with concrete

blocks, cut the fence surrounding the property and destroyed the gate

that provided access to the property. The fourth and fifth applicants

together with their minor children and the sixth respondent were

unable to leave the site. When I arrived on the site the contractors

were incredibly hostile and just kept saying that I must leave as it is

not my site and they were working on the instructions of the first

respondent. I was so terrified that I went to the police station to open a

case against them. The computers of the police were off line and they

were unable to open a case. They were also unwilling to go to the site

and remove the contractors, despite my desperate pleas.

47. For the remainder of that weekend I did not return to my home or to

the site. I went to stay with some family in Mthatha as I was too

terrified of the contractors and the people who work for the first

respondent. The first respondent is a very powerful person in that area

and she simply uses intimidation tactics to make sure that people

adhere to her orders.

48. I again approached the police on 10 July 2018 and a case was

registered with the reference number CAS118/7/2018. Constable Matu

 15

was appointed to my case, but to date the police have not arrested

anyone for their unlawful behavior and I am not sure if they have even

spoken to the first to the sixth respondents. On 18 July 2018 I phoned

Constable Matu again about the case, but he could not provide me

with any update and simply said that it is a complicated case and is

being investigated. He also said that he needed to speak to an

attorney at Legal Aid to determine whether he can do anything in this

matter. I am not sure why this is necessary, but it is clear to me that

there is either unwillingness or an inability on the side of the police to

assist me in this case.

49. I finally found out about the Legal Resources Centre (LRC) that

provides pro bono legal services. With the assistance of the LRC I was

able to obtain some information about that area and found out that the

land actually belongs to the Municipality. This means that the

respondents have no authority over the property and cannot evict

people, build on the properties, or intimidate and threaten the

occupants of these properties, as they are not the lawful owners nor

do they have a right recognizable in law.

50. On 16 July 2018 the contractors returned to my site and removed the

entire fence, poles and gate. I tried to stop them, but they threatened

me with violence and I again went to the police to try and open a case

against the contractors, the first respondent and her committee. The

police accompanied me to the site, but when we arrived they had

 16

already left with all of the materials. The police did not want to go to

the first respondent’s Great Place to retrieve the material and advised

that I needed to obtain an interdict. No new case was opened with the

police and I was advised that this information will be added to the

already existing case that I opened on 10 July 2018.

51. The contractors are intending to destroy the entire home on this site

and use the site for the first respondent’s purposes. As detailed above,

this has happened to other sites in the area and it will continue to

happen unless the first respondent and her committee are stopped.

52. The first respondent and her committee have no authority over this

land as they are not the owners of the property and cannot use the

property as if it is their own. Since around 2013 they have been

illegally grabbing land, evicting people from their homes, and selling

the land to rich buyers who are using it for developments. This is

happening all over Bhongweni and people are so terrified by the

intimidation tactics of the headwomen and her committee that they are

rather opting to leave their homes than run the risk of violence from

the side of the first respondent and her cohorts.

VIII SECOND APPLICANT – BUYISWA ZWEDALA

53. In 1995 Buyiswa received possession of an unoccupied piece of land

from Mzwandile Zwakala and Mkhuseli Mabetsha. The land is situated

next to a place known as Mr Bread Bakery and the area was

 17

commonly referred to as the Zamakulungisa Industrial Site. It falls

within the area that is known as Bhongeweni, Phase 1, Zimbane. She

does not hold a title deed to this property.

54. Following receipt of the plot, she was also required to pay the

headman in the area R2500, a case of beer, a case of coke, and a

bottle of red brandy. It is not clear why this was required of her.

However, it is assumed that it was in terms of the local custom then

applicable. She complied and met all these requirements in November

1995.

55. Thereafter she built two shacks on the plot – she lived in one and used

the other shack as a shebeen called KwaLion. In 1997 she temporarily

moved to Grahamstown, but left a tenant on the property to keep it for

her while she was away. Both of the shacks were destroyed in a storm

during 2004.

56. She returned from Grahamstown in 2012 and discovered that her site

had been fenced. She later discovered that the site was fenced on the

instruction of a lady called Thobakazi Joyini. She only met Ms Joyini in

April 2018. She was told by Ms Joyini that she had purchased the

property from the second respondent. She explained to Joyini that

there must have been a mistake as that was her plot.

57. In May 2018 Buyiswa started to build a two roomed flat on her plot. On

13 May 2018 she was called to the first respondent’s homestead and
 18

informed by the first respondent that the site no longer belongs to her,

as it had been sold to Ms Joyini. On 26 May 2018 the second, third

and fourth respondents visited the site where the builders were

working. They instructed the workers to stop building as they will see

“bloodshed in this yard”. On 28 May 2018 she visited the chief of the

area, Chief Sangoni, to inform him of the first respondent’s conduct

and the committee. He advised her to go to the Magistrate’s Court or

to an attorney as the land in issue belongs to the State land and he

had no authority over the land.

58. Thereafter, Buyiswa approached Legal Aid South Africa in Mthatha.

The officials who assisted her at Legal Aid, after making a few phone

calls, informed her that they could not assist as she did not have a title

deed over the plot. On 29 May 2018 she also went to the police and

wrote an affidavit. She hoped that this would force the police to do

something, but they said they could not do anything as she did not

have a title deed to prove ownership.

59. On 18 June 2018 at about 13:00, the second and third respondents

came to Buyiswa’s site and destroyed the property that she had

started building on the site. They broke down the walls of the flat and

destroyed all the building materials. The confirmatory affidavit of

Buyiswa is attached to this affidavit.

IX THIRD APPLICANT – LINDISWA MBIKO

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60. Lindiswa received possession of a plot from Sanelisiwe Jayiya in

November 2017. He was known in the neighbourhood as the owner of

the plot and she found out about him from a friend. There was a three

roomed house on the property when she went in. She then started

staying on the property in May 2018.

61. In June 2018, the second and fifth respondents saw her around the

property and asked her where her husband was. She advised them

that her husband had passed away last year. The second and fifth

respondent told Lindiswa that the land belongs to the Chiefdom and

that if she wanted to continue staying on the property she had to pay

the first respondent R10 000 as “ukubusa”. She did not have the

money and did not pay the first respondent.

62. In late June 2018, the second respondent went to Lindiswa’s

childhood home and advised her mother that she must tell Lindiswa to

leave the property as it belongs to the Chiefdom. The second

respondent said that they are looking for a buyer for the land and that

Lindiswa was being stubborn by not leaving when she has been told to

leave.

63. Lindiswa fears that her property is on the verge of being sold from

underneath her by the first respondent and her committee. She is

afraid that people may come and fence her property or start building

on the property as they have started doing on other sites in the

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Bhongweni area. She is a widow and feels vulnerable to the first

respondent’s antics and her committee.

X A PRIMA FACIE RIGHT

64. I submit that all the applicants have clear rights that are being

infringed by the first to the sixth respondents. I say this for the

following reasons:

65. The site that the first to the sixth respondents have claimed for the

Chiefdom was given to me by my sister-in-law and I rent it out to the

fourth and fifth applicants together with their minor children and the

sixth applicant. I have a vested interest in this property as I have

invested money to build the home on the property and since 2012 I

have acted as the landlord of the property.

66. The fourth and fifth applicants together with their minor children and

the sixth applicant are currently living in the home and have been

occupying the property since 2012. They are being threatened with

eviction by the first respondent and her cohorts. All of this goes

against the provisions of sections 10, 25(1), 26(1), 26(3), 28(2) and 29

(1) of the Constitution.

67. Apart from the protection afforded by in terms of the Constitution, the

prohibitions in s11(7)(aA) of the Restitution Act and in the Prevention

of Illegal Eviction of Unlawful Occupiers of Land Act, 1998 (Act No. 19

 21

of 1998) are for the benefit of people in the same position as we, the

applicants, are.

XI HARM EXPERIENCED AND FORESEEN

68. Absent an interdict and if the status quo remains, the respondents will

continue to deal with plots as they please. Cumulatively viewed, the

conduct complained of establishes various causes of action amongst

which (i) illegal eviction; (ii) spoliation; and (iii) intimidation.

69. At the moment, the respondents are at large to alienate, sell, and/or

deal with the plots in any manner that may be prejudicial to the

applicants. It is clear that no amount of resistance and/or persuasion

will deter them. Suffices to state for now, that unless an interdict is

granted on the terms sought in the notice of motion, it is free reign for

the respondents.

70. As it is, (i) the fourth and fifth applicants together with their minor

children and the sixth applicant are just about to be homeless. There

is thus an urgent need for an order for the immediate restoration of the

status quo ante; (ii) I have lost control of the plot that she had rented

to the fourth and fifth applicants together with their minor children and

the sixth applicant.

XII THE BALANCE OF CONVENIENCE

71. The respondents will suffer no prejudice in the event an interim

 22

interdict is granted against them. If any prejudice were to befall them,

same would be built on the illegal activities that ground the need for

the relief that is sought.

72. In contrast, the applicants are severely prejudiced as it is. Some have

had to flee their homes; others are being intimidated away from their

homes and others genuinely fear that they will be illegally evicted out

of their homes.

73. Accordingly, the balance of convenience is firmly in favour of the

applicants.

XIII NO OTHER REMEDY

74. The applicants have no alternative remedy. To the applicants’

knowledge, the respondents have no capital assets. They are just

lawless henchmen that are probably self-sustaining from the proceeds

of the illegal sale of plots in and around the Zimbane Administrative

Area. In the circumstances the probabilities are overwhelming that any

eventual award of damages will be hollow.

75. In any event, even if there was a claim for damages, same does not

afford viable and immediate relief that matches the exigencies of

homelessness.
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XIV URGENCY

76. The matter involves the infringement of constitutional rights. On this

basis alone, it is urgent because in a Constitutional Democracy the

violation of constitutional rights cannot be countenanced. It also

involves the infringement of rights of minor children to whom this Court

is the upper guardian.

77. Whilst the disputed conduct seems to have been in place for a while,

the eviction is imminent. The fleeing of my homes is an issue of most

recent occurrence. The applicants have been attending to the matter.

The dispute has proven incapable of resolution, inter parties. The

referral of the matter to Chief Sangoni and the various attempts at

involving the police were aimed at the resolution of this matter without

recourse to this Court. None of these attempts have yielded a just

outcome.

78. The people who are acting on the direction and authority of the first

respondent are currently busy building a wall on my site. They have

offloaded bricks, cement, and sand and they have put the brick stone

in my yard and planted a water pipe. Despite the fact that they have

received a letter from an attorney advising them to stop their unlawful

activities, the first respondent and her contractors are continuing to

build on the property without any regard to the lawlessness of their

actions. The family that is currently residing at the site is being

 24

threatened to vacate the house as the site has now been claimed by

the first respondent. Moreover, the property is fenced by the

contractors and the tenants cannot exercise their freedom of

movement. They are on the verge of being evicted from the site and

they will be rendered homeless if there is no urgent intervention.

79. The schools reopened on 17 July 2018 and the children are attending

school close to where they live. They require a stable environment to

live and to thrive and the conduct of the first to the sixth respondents

threatens their right to education as they may be unable to continue

going to their school should they be evicted. It cannot be

countenanced that minor children will miss out on their school

activities because of elderly people with thuggish tendencies.

80. I am also currently in hiding as I was continuously harassed and

threatened by the first respondent’s committee members and the

contractor. Both my tenants and I have been told that we needed to

give up the property as “blood will flow” over this property. I fear for

my life because there have been various occurrences where the

people of the eBhongweni community have lost their homes at the

hands of the first respondent. The members of the committee come to

the house almost every day and tell the tenants to leave. They are

very hostile and shout at the tenants. Although my tenants have

pleaded with the members of the committee to let them stay, they are

insisting that the tenants move as the property will be destroyed.

 25

81. Also, it cannot be expected for the applicants whose plots the

respondents are currently seeking purchasers, to be so imprudent as

to wait for their plots to be sold to strangers before they approach this

Court for relief. From this, it should be clear that we will not obtain

substantial redress at a hearing in due course.

XV CONCLUSION

82. I pray for an order to be granted in accordance with the notice of

motion.

______________________________
NOMAKHWEZI MTSHIZANA-BASE

I. The deponent acknowledged to and before me that:

A. She knows and understands the contents of this declaration;

B. She has no objection to taking the prescribed oath; and
C. She considers the prescribed oath to be binding on her conscience.

II. The deponent thereafter uttered the words, “I swear that the contents of
this declaration are true, so help me God.”

III. The deponent signed this declaration in my presence and in Mthatha on

this the ______________ day of July 2018.
________________________
COMMISSIONER OF OATHS

FULL NAMES_____________________________________________________

CAPACITY / RANK ________________________________________________

STREET ADDRESS _______________________________________________