Biyela and Another v Dhludhla Brothers CC and Another (LCC 107/2017; 108/2017; LCC 109/2017; LCC 110/2017; LCC 111/2017) [2023] ZALCC 9 (6 March 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Land Claims Court South Africa: Land Claims Court You are here: SAFLII >> Databases >> South Africa: Land Claims Court >> 2023 >> [2023] ZALCC 9 | Noteup | LawCite sino index ## Biyela and Another v Dhludhla Brothers CC and Another (LCC 107/2017; 108/2017; LCC 109/2017; LCC 110/2017; LCC 111/2017) [2023] ZALCC 9 (6 March 2023) Biyela and Another v Dhludhla Brothers CC and Another (LCC 107/2017; 108/2017; LCC 109/2017; LCC 110/2017; LCC 111/2017) [2023] ZALCC 9 (6 March 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2023_9.html sino date 6 March 2023 IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG Before: The Honourable Acting Judge President Meer Heard on: 06 March 2023 Delivered on: 06 March 2023 Case number: LCC 107/2017 (1)    REPORTABLE: YES / NO (2)    OF INTEREST TO OTHER JUDGES: YES / NO (3)    REVISED: YES / NO DATE: 06/03/2023 In the matter between: NONHLANHLA ELSIE BIYELA First Applicant BHEKUMUZI GIBSON BIYELA Second Applicant and DHLUDHLA BROTHERS CC First Respondent THE DIRECTOR GENERAL FOR THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND AFFAIRS Second Respondent Case number: 108/2017 In the matter between: MBONGELENI MTHIMKHULU Applicant And DHLUDHLA BROTHERS CC First Respondent THE DIRECTOR GENERAL FOR THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND AFFAIRS Second Respondent Case number: LCC 109/2017 In the matter between: NTOMBIZINI LINDENI MATHONSI Applicant and DHLUDHLA BROTHERS CC First Respondent THE DIRECTOR GENERAL FOR THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND AFFAIRS Second Respondent Case number: LCC 110/2017 In the matter between: BONGINHLANHLA ENDREW THOLUMUZI HLABISA First Applicant FIKILE SYLVIA HLABISA Second Applicant FAVOURITE ZANDILE HLABISA Third Applicant and DHLUDHLA BROTHERS CC First Respondent THE DIRECTOR GENERAL FOR THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND AFFAIRS Second Respondent Case number: LCC 111/2017 In the matter between: GLADYS QWASHILE MDANZA First Applicant REUBEN HLALISANI DLAMINI Second Applicant MAVIS MAMKAZI MKHWANAZI Third Applicant and DHLUDHLA BROTHERS CC First Respondent THE DIRECTOR GENERAL FOR THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND AFFAIRS Second Respondent JUDGMENT MEER AJP [1]         The Applicants seeks an order compelling the First Respondent to appoint a land surveyor in terms of an order of this Court dated 18 February 2020 which was granted by consent between the parties to this application. The 2020 order emanated from the First Respondent’s non-compliance with a previous order dated 15 May 2017 also granted by consent between the parties. That order recorded the First Respondent’s consent to identify, allocate and demarcate 74 hectares of land for use by the Applicants. Thereafter on 13 March 2020 the First Respondent stated it was unwilling to part with 74 hectares of land notwithstanding its consent to do so in the first and second orders. [2]         In opposition to this application the First Respondent raises 3 points in limine and also asserts that the transfer of ownership of land would be unnecessarily hard, unreasonable, unjustified and would lead to an injustice. There is no explanation as to why there is a consent order doing exactly that. This latter argument cannot be entertained given the clear, unambiguous meaning of both the orders and the fact that the First Respondent consented to them. [3]         The points in limine in summary are that the Applicants failed to lodge a timeous application in terms of section 16(1) of the Labour Tenants Act No. 3 of 1996, the Court has not finally determined Applicants’ right to an award in land and the First Respondent has always disputed that the Applicants were labour tenants. None of these have any bearing on the court order granted by consent. The order of 18 February 2020 is not contingent upon any of the issues raised in the points in limine. It was open to the parties to enter into an agreement by consent regardless of any of the matters raised in the points in limine. The First Respondent does not explain why it entered into the consent agreement if these factors prevented such an agreement by consent. Nor is its change of mind explained. [4]         It is trite that an order of court is binding and enforceable unless it is set aside by a court of competent jurisdiction. This can be done on appeal, review or a successful rescission application in this Court in terms of Rule 64. In Secretary of Judicial Commission of Enquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others 2021 (9) BCLR 992 (CC) at paragraph 59 it was said an order of a court of law stands until set aside by a court of competent jurisdiction. Until that is done the court order must be obeyed even if it may be wrong. See also Lesapo v North West Agricultural Bank and Another [1999] ZACC 16 ; 2000 (1) SA 409 ; Municipal Manager O.R Tambo District Municipality and Another v Ndabeni 2022 (10) BCLR 1254 (CC); Department of Transport v Tasima 2017 (1) BCLR 1 CC. [5]         It is disquieting that the First Respondent ignores the aforementioned trite most obvious and well established principle. Accordingly, I am inclined to agree with the Applicant that the defence of the First Respondent is frivolous and vexatious and warrants a costs order being granted against the First Respondent. [6]         I grant the following order: 1.          The Second Respondent shall appoint a land surveyor in terms of the Court order dated 18 February 2020 under consolidated case numbers LCC107/2027 to LCC111/2027. The Second Respondent shall comply within 30 days of the date of this order 2.          Once the land surveyor has been appointed the members of the First Respondent shall cooperate and facilitate and or do all things necessary to facilitate the surveying or demarcating of portions of the farm sub 3 of farm Arcadia no. 6123 situation in KwaZulu-Natal. 3.          Should the members of the First Respondent fail to comply within 30 days of the granting of this order, the sheriff and the land surveyor appointed by the Second Respondent shall carry out the surveying of the farm in order to identify the portions to be allocated for transfer to the Applicants. 4.          The First Respondent shall the costs of this application on a scale as between party and party. Y S MEER Acting Judge President Land Claims Court APPEARANCES: For the Applicants:                              Adv. T Kadungure Instructed by: Gumede & Jona Inc. For the First Respondent:                    Adv. J Cordier Instructed by: Steve Nkosi & Partners sino noindex make_database footer start