Mbizana Local Municipality v Mbizana Village Senior Secondary School

• Jurisdiction: South Africa
• Judge: Chetty J
• Judgment Date: 18 March 2008
• Docket Number: 1210/06
• Court: Transkei Division
• Hearing Date: 05 March 2008
• Citation: 2008 JDR 0559 (Tk)

Chetty J:

1.

In motion proceedings, the applicant sought an order for the eviction of the first respondent from land described in its notice of motion as a

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Chetty J

portion of erf 110 Mbizana and marked "Y" on annexure "A" to its founding affidavit, a map of the Mbizana town planning scheme. It contended that it was the owner of the entire demarcated erf and that a small portion of it marked "X" was lawfully occupied by the first respondent by virtue of its beneficence. It alleged further that the first respondent had arrogated portion "Y" to itself by fencing it, that such conduct constituted an impairment of its rights of ownership of "Y", was unlawful and hence the eviction of the first respondent therefrom expedient. What it omitted to disclose was, as the judgment appealed against demonstrates, crucial to the fate of the application. It is apposite at this juncture to record that annexure "A" records that it had been prepared by land surveyors Button and O'Connor and that the numerals 762 appear on "Y".

2.

In the answering affidavits filed on behalf of the respondents it emerged that the land from which the eviction of the first respondent was sought had, on the express instructions of the applicants' then town clerk, been surveyed by a qualified land surveyor in the employ of Button and O'Connor during 1996 for demarcation for educational purposes. That process culminated in the land surveyor, Mr Hitchius, drafting a plan showing the proposed subdivision of the remainder of erf 110, the actual measurements and beacon positions. Upon submission of the plan aforesaid to the applicant, its town clerk Mr Dlangamandla signed the beacon certificate. It is common cause that

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Chetty J

the plan (GPH2) headed "The remainder of erf 110 Bizana" 7,8740ha is in fact the same land designated by the letters "X" and "Y" in annexure "A" to the applicant's founding affidavit marked erf 762.

3.

In paragraph 3 of the judgment I reproduced a letter addressed to all interested parties, including the applicant, by the department of local government and housing of the Eastern Cape Province advising that ministerial approval for the subdivision and rezoning of erf 110 had been obtained. Consequently, as the judgment shows there was no proper basis for the applicant obtaining the relief it sought. The application was accordingly dismissed.

4.

The applicant now seeks leave to appeal against the judgment and...