In a guest post, David Scrooby notes an interesting case arising from the continuing uncertainties in South African land law.

Introduction

In Mbashe Diocese of the Anglican Church v Mayapi and Others (5243/2024) [2025] ZAECMHC 30, the Bishop of the Mbashe Diocese of the Anglican Church of Southern Africa was the applicant. He stated that the property of the Parish of Lower Gwadu was allocated to the Anglican Church by means of a “permission to occupy” which was issued to it in terms of the regulations promulgated under the ‘Land Act of 1936, however, the applicant could not find the “right to use” after a diligent search, and the officials of the Department Land Reform and Rural Development reported that they were unable to find a copy.

The land issue

This case highlights South Africa’s land issue. The parish is on tribal or communal land in what was termed the “independent state of the Transkei”, in the Eastern Cape Province. The “permission to occupy” or a leasehold system applied, and occupiers did not receive title deeds to the property. As a result of the apartheid system, there are still properties which Churches have built on and used for more than fifty years which are not registered in the names of the Churches. In the former Black townships, Church properties were held on a leasehold system. In the African homelands, a “right to use” was granted by the Chief and the Traditional/Tribal authority. The South African Department of Land Reform and Rural Development is responsible for endorsing title deeds of properties to reflect the present owners. In this case, the applicant stated that the Government or Traditional Authority/Chief at the relevant time had issued permission to occupy the land.

The background to the dispute

The Bishop of the Diocese appointed the Revd Mr Ngubo as the Rector responsible for the parish of Lower Gwadu, and he was to assume his duties in January 2023. As it happened, however, he could not do so because no congregants turned out for church services on several consecutive occasions. At the instance of the Bishop, an investigation was undertaken into the possible cause of the persistent non-attendance of church services by the members of the congregation of the parish. The investigation revealed that the congregants of the parish stayed away from church services as a way of showing discontent with the Bishop’s failure to install the first respondent, Nkululeko Mayapi, as Rector of the parish.

A meeting was subsequently held on 2 March 2023 at the homestead of the fifth respondent, the Tribal Chief. Its purpose was to resolve the impasse that had arisen and in which the Lower Gwadu community members had become involved. It was at this meeting that the Bishop’s representative, the Revd Mr Sifuba, was forced to hand over the keys to the property to the fifth respondent. According to the applicant, the keys to the property were unlawfully taken away, thus dispossessing the Diocese of the property without its consent.

The applicant’s case

In summary, Judge Rusi set out the case as follows: in the applicant’s founding affidavit, Bishop Fikizolo stated that the property had been used and occupied by the applicant, and it has been in its control since time immemorial. Before 2 March 2023, the property was in its peaceful and undisturbed possession. This was where the parish always held its church services. According to Bishop Fikizolo, the applicant was the owner or bona fide possessor of the property, and the respondents had no title, right or authority to use the church building without its consent. The applicant further stated that the property was allocated to it by means of permission to occupy issued to it in terms of “the regulations promulgated in Proclamation 26 of 1936”.

The first and second respondents’ case

The first and second respondents denied that the applicant was unlawfully dispossessed of the keys under threats of violence. The two respondents disputed that the applicant was the owner of the property. They also disputed that the applicant was in peaceful and undisturbed possession of the property because the property was always used jointly by the community and the parish. The Judge noted that the Diocese, led by a Bishop, had various parishes under the governance or tutelage of a pastor (Priest/Rector).

The third respondent’s case

The third respondent raised a point in limine of the Diocese’s lack of locus standi, in light of the fact that it had not produced the permission to occupy on which it relied to prove its ownership of the property. Judge Rusi held that the point was ill-contrived.

The fifth respondent’s confirmatory affidavit

The fifth respondent, the traditional leader of Lower Gwadu Administrative Area, filed a confirmatory affidavit in which he denied that permission to occupy the property forming the subject of the application was ever issued to anyone or to any organisation or Church. He also stated that the property was owned by the community. According to the fifth respondent, the keys to the property were voluntarily handed over to him.He denied that the applicant was unlawfully dispossessed of the property. Judge Ruso noted that the Chief did not dispute unlawful dispossession of the property by threats of violence and harassment directed at its clergy.

The law

The court considered spoliatory relief and found that the property had been used by both parties peacefully and that the respondents had claimed exclusive possession against the will of the Church. The Judge stated:

“Before the title to possess is determined, possession must be restored where the possessor has illicitly been disposed of the property, provided that previous peaceful and undisturbed possession has been proved… good title is irrelevant in a spoliation application. This simultaneously addresses the point in limine that the third respondent raised, of the applicant’s lack of locus standi. Should the asserted defence of consent prevail? Consent is indeed one of the recognised defences to spoliatory relief. But such consent will be valid if it was given genuinely, freely, and voluntarily…On the common cause facts of this application, I am satisfied that the applicant’s version is credible – the keys to the property were forcefully taken from Revd S. Therefore, the applicant has proven that it was unlawfully dispossessed of the property. I turn to dealing with whether the applicant has established its entitlement to the additional interdictory relief that it seeks.”

He found that the Diocese had not made a proper case for the grant of a declarator as to the Church’s title to own the property, due to lack of deeds to prove the ‘right to use’ or the right to occupy.

The court order

 “1. The fifth respondent is hereby directed to release the keys to the property known as the Site of Anglican Church/Anglican Church Gwadu Parish (“the property”) to the applicant forthwith, by handing them over to Mluleki Fikizolo, currently the Bishop of the applicant, or a person nominated by him.

2. The first to fifth respondents and/or anyone acting under their direct or indirect instruction and/or mandate are hereby interdicted from interfering, in any way, with the use and/or occupation of the property by the applicant and any of its officially recognised congregants.

3. In the event that the fifth respondent fails and/or refuses to release the keys to the property in the manner specified in paragraph 1 of this order, the Sheriff of this Court, duly assisted by the members of the South African Police Service, is authorised to remove the keys from the fifth respondent’s possession and hand them over to the applicant’s Bishop Mluleki Fikizolo or a person nominated by him.

4. The first, second, third and fifth respondents shall pay the costs of this application, which costs shall include costs of two counsel where so employed.”

David Scrooby, Attorney, Pretoria, South Africa

Cite this article as: David Scrooby, “Spoilation but not ownership: the South African land issue in Mbashe Diocese” in Law & Religion UK, 18 August 2026: https://lawandreligionuk.com/2026/08/18/spoilation-but-not-ownership-the-south-african-land-issue-in-mbashe-diocese/.