- Potgieter Siyazi says he paid R670,000 for the property in 2012 and later obtained his own permit to occupy it from the Tribal Authority in 2014.
- Impala Avenue (Pty) Ltd says it was given the sole right to occupy the property by the Kwa-Lugedlane Tribal Authority in 2022.
- The Mpumalanga High Court in Mbombela set aside Siyazi’s eviction and ordered that the dispute must be decided at a trial before a different magistrate.
A dispute spanning 12 years over the right to occupy tribal land must now be decided at trial. The High Court in Mbombela found that the different accounts could not be fairly resolved just by looking at affidavits.
Potgieter Siyazi challenged an eviction order granted by the District Court of Nkomazi in Tonga, handed down on 2 October 2024. The magistrate dismissed his challenge to the court’s jurisdiction and ordered that Siyazi, along with anyone else occupying the property through him, must leave.
Impala Avenue (Pty) Ltd went to the magistrate’s court, arguing that it lawfully held the permit to occupy the disputed property. The company said this right was granted by the Kwa-Lugedlane Tribal Authority on 25 January 2022.
The company also relied on a letter from the Tribal Authority, dated 1 March 2023, which said it was the only party granted the right to occupy the property. The letter described Siyazi’s occupation as illegal and without permission from the authority. Although the Tribal Authority was named as a respondent, it did not take part in the proceedings.
Siyazi disputed the company’s claim. He said he bought the property, or at least the right to occupy it, from Ms Mkhonto in 2012 for R670,000. According to Siyazi, Mkhonto held a permit to occupy dated 31 May 1999, and he later obtained his own permit from the Tribal Authority in 2014 after paying a R5,000 fee. Impala Avenue, however, questioned the validity of Siyazi’s permits and alleged that they were fraudulent.
Jurisdiction challenge fails
Siyazi argued that the magistrate’s court did not have jurisdiction because the value of the right to occupy exceeded the R200,000 monetary limit for the court. The High Court rejected this part of his appeal.
Acting Judge President TV Ratshibvumo, with Acting Judge HF Fourie concurring, said that anyone raising a challenge about the court’s jurisdiction based on the value of a right to occupy must give proof showing the matter falls outside the magistrate’s jurisdiction.
Siyazi claimed he paid R670,000 for the property or the right to occupy it, but he did not produce any proof of payment or a confirmatory affidavit from Mkhonto. The High Court agreed that the jurisdictional challenge had not been proved. The judge said that without supporting evidence, "jurisdiction was as such not seriously placed in dispute."
Dispute about the property itself
The key issue was whether the eviction application could be resolved just on the papers. The High Court found there was a basic argument about the identity of the property from which Siyazi was allegedly being evicted.
Impala Avenue’s application referred to one stand, while Siyazi insisted he was on a different stand and said he did not even know where the company’s identified stand was located. The company insisted that the two descriptions referred to the same property, but no evidence was given to the magistrate to prove this or to explain the mismatch.
The High Court warned that if the issue was not resolved properly, Siyazi risked being evicted from property he may never have occupied.
Competing permits cannot be decided on affidavits
There was also disagreement about the validity of each party’s claimed right to occupy the land. Impala Avenue relied on its 2022 permit from the Tribal Authority. Siyazi, on the other hand, based his claim on a chain of rights beginning with Mkhonto’s 1999 permit, his own alleged purchase in 2012, and the permit issued to him in 2014.
The magistrate raised questions about Siyazi’s documentation. These included the lack of a Tribal Authority letterhead on Mkhonto’s document, no address for her, and a mismatch between the date of issue and the date of stamping.
The magistrate also pointed out that the document seemed to be signed by Chief LM Ngomane in 2009, even though records show he passed away in 2005. The High Court found that these disputes were important and could not simply be resolved by deciding which story seemed more likely on the paperwork alone.
Judge Ratshibvumo noted that Siyazi had allegedly occupied and controlled the property for around 12 years before Impala Avenue brought the eviction application on 15 March 2024. He also pointed out that neither side held a real right to the land, since it was tribal land owned by the Tribal Authority. Their competing claims were about personal rights to occupy the property.
High Court says a trial is necessary
The High Court found that the magistrate was aware of the factual disputes but still tried to weigh up the competing evidence without holding a trial or hearing oral evidence.
Judge Ratshibvumo said that motion proceedings are not designed to resolve real disputes of fact because they do not allow for proper testing of competing stories through oral evidence. Impala Avenue admitted on appeal that there were disputes that could not be reconciled, but argued that Siyazi’s version was nothing more than bare or implausible denials that could be rejected on the paperwork.
The High Court disagreed. Judge Ratshibvumo said the disputes were not shown to be "bald or uncreditworthy denials" or so far-fetched that they could simply be rejected without a proper trial.
The court also rejected Impala Avenue’s argument that the Tribal Authority’s 2023 letter suggested the authority had already held a hearing and resolved the dispute. “If that was the case, one remains in the dark on the full details of the alleged trial,” Judge Ratshibvumo said.
He noted there was no information about when it was held, who was in charge, who was there, what procedures were followed or what the outcome was. The High Court concluded that, in the interests of justice, the factual disputes must be resolved through a trial.
Eviction order set aside
The High Court turned the original application into a trial. The notice of motion will serve as the summons, the founding affidavit as the particulars of claim, the answering affidavit as the plea, and the replying affidavit as the replication.
The matter was sent back to the District Court of Nkomazi in Tonga for trial before a different magistrate. The costs of the original proceedings and the appeal were ordered to be costs in the action.
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