The High Court in Durban has dismissed an application to evict a woman from her home of 18 years, ruling that the property owner failed to comply with constitutional protections and improperly served court papers on the respondent’s minor child at school.
Judge Mokgere Masipa handed down the judgment on 30 September 2025 in the matter between Sithembile Benedictor Ngubane and Jabulile Shandu, with costs awarded against the applicant.
The court found that Ngubane sought to circumvent the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act by arguing the property was merely used for storage rather than as a home.
Property dispute spanning nearly two decades
According to court records, Shandu moved into a Sherwood property in 2007 while in a relationship with Mbongiseni Mlambo, son of the owner, Joyce Mlambo.
She claimed they were married under customary law, had a daughter in 2008, and that she contributed to rent-to-buy payments with the understanding that she and Mbongiseni would eventually own the house.
However, this was disputed. “The applicant disputes this, pointing out that the rent-to-buy agreement was between Joyce and Habitat for Humanity, that the respondent was never a party to it, and that Habitat itself listed her as an ‘illegal tenant’.”
After Shandu and Mbongiseni separated, he left the property, but she stayed with their child. The house was registered in Joyce’s name in 2017.
The court further heard that Joyce and her husband tried to evict Shandu in 2017, but the case was not resolved. Another eviction attempt under the PIE Act was launched in 2023, but again went unresolved.
In January 2025, ownership passed to Ngubane, who claimed the house was vacant except for some of Shandu’s belongings and said Shandu was living elsewhere.
“The respondent denies this, insisting that she and her daughter have remained in occupation since 2007, that the property is their home, and that they never vacated it.”
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Failure to meet interdict requirements
The court applied well-established requirements for a final interdict: a clear right, an injury actually committed or reasonably apprehended, and the absence of any other satisfactory remedy.
Masipa found that the applicant’s case failed to meet all three requirements.
“Ownership is established, but ownership alone does not entitle the applicant to circumvent PIE,” the judgment stated.
“Where the property constitutes a home, the applicant’s right is qualified by s 26(3) of the Constitution.”
The court noted that where the respondent resides at the property, “her occupation is lawful until due process under PIE is followed.”
The judgment emphasised that Ngubane had an obvious statutory remedy through eviction under PIE, which “has been used before and remains available.”
“The existence of this remedy precludes a final interdict,” Masipa ruled.
Irregular service on minor child condemned
The court expressed strong disapproval of how the application papers were served.
The sheriff served the documents not on Shandu personally, nor at a domicilium, but on her minor child at her school in North Beach, Durban.
Counsel for the applicant stated the sheriff attended at the school on the strength of information that Shandu would be found there.
Masipa called this conduct unacceptable.
“The child is not a party to the proceedings. The school was never nominated as an address for service,” the judgment noted.
“Serving process on a child in a school setting is bound to cause embarrassment and distress and unnecessarily involves a minor in litigation to which she is not a party.”
The court emphasised its constitutional duty to protect children. Section 28(2) of the constitution states that the best interests of the child are paramount in every matter concerning the child.
“That principle extends to procedural matters: courts will not condone conduct that humiliates or burdens children,” Masipa stated.
The judgment outlined lawful alternatives that were available.
These included affixing the process to the principal door or gate of the property, depositing it in a post box or by hand with a responsible adult at the residence, or tracing Shandu’s whereabouts and effecting personal service at the traced address.
“None of these avenues was pursued,” the court found. “Instead, the applicant, through her attorneys, opted for a course of action that exposed a child to unnecessary embarrassment.”
While the court proceeded to determine the merits for the sake of finality, Masipa stressed “that this manner of service is irregular, inappropriate, and inconsistent with the protective role of courts.”
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Unresolved factual disputes
The case contained genuine disputes of fact. These included whether Shandu resides at the property with her daughter, and whether Joyce promised that ownership would pass to Shandu and Mbongiseni once the rent-to-buy was concluded.
“These disputes are not peripheral. They go to the very heart of whether PIE applies and whether the applicant has any cause of action by way of interdict,” the judgment stated.
The court found Shandu’s version was not inherently far-fetched. It was supported by her longstanding occupation, the presence of her belongings, the history of prior eviction attempts, and the fact that she raised a lis pendens defence in 2023.
By contrast, Ngubane’s denial of residence rested largely on observations that the property was sometimes locked and unattended.
The court cited the principle in Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd. “Where foreseeable disputes of fact arise, applicants should not proceed by way of motion,” Masipa noted.
Masipa said the KwaZulu-Natal Practice Directive reinforces this obligation. It requires applicants to inform the court and respondents where disputes of fact exist, so the matter may be referred for oral evidence or trial.
Ngubane ignored these principles and pressed for final relief on motion.
Constitutional protections upheld
The judgment emphasised that PIE provides the statutory framework giving effect to section 26(3) of the constitution.
“This application is fundamentally flawed,” Masipa stated. “The applicant sought a final interdict, a drastic and definitive remedy in circumstances where she failed to establish the very requirements for such relief.”
The judgment stated that, since 2007, the property has been the home of Shandu and her child, and “the applicant’s rights of ownership are circumscribed by the constitution and PIE.”
Ngubane elected to sidestep PIE and proceed by way of motion, despite clear and foreseeable disputes of fact. “That approach was misguided,” the court found.
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Practitioners warned about proper procedure
The court emphasised that the defects were not merely technical but implicated fundamental principles of fairness and constitutional protection.
“On the respondent’s version, which must be accepted for purposes of motion proceedings, she and her minor child have treated the property as their home since 2007,” Masipa stated. “That version cannot be rejected on motion.”
The applicant was duty-bound to comply with PIE. Her failure to do so left the application without a lawful foundation.
The conduct of serving court papers on Shandu’s child at school was described as a matter of grave concern.
The court issued a clear warning to practitioners. “Courts will not lend their approval to practices that expose children to humiliation or draw them unnecessarily into litigation.”
The judgment reminded practitioners “that proper service is not an optional formality but an indispensable safeguard of fairness and dignity.”
Application dismissed with costs
Masipa identified cumulative fatal flaws. These included irregular service, unresolved factual disputes, disregard for the Practice Directive, and a lack of compliance with PIE.
Together, they meant Ngubane failed to meet the high threshold required for a final interdict.
“To grant the relief sought would be to sanction procedural shortcuts at the expense of constitutional protections,” the court stated. “This Court cannot do so.”
The judgment concluded that the appropriate course was to dismiss the application with costs.
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