Mhlaba and others v Dywili
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Beshe J |
| Judgment Date | 05 September 2023 |
| Citation | 2023 JDR 3327 (ECM) |
| Hearing Date | 24 April 2023 |
| Docket Number | CA95/2022 |
| Court | Eastern Cape Division |
Beshe J:
In June 2018 the respondent herein launched an application against the five appellants together with six others. The bone of contention was a stretch of an arable allotment described as 47 Zitatele Administrative Area, Libode District, Eastern Cape Province. An order of eviction from the said piece of land was sought against first, second, third, fourth, fifth, sixth, seventh, eighth and ninth respondents in the matter. Interdictory orders were also sought against fourth, fifth, sixth, seventh, eighth and ninth respondents. Toni AJ found in favour of the respondent and granted the orders
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Beshe J
sought with costs. Aggrieved by this decision, the five appellants are appealing against the decision, leave to do so having been granted by the Supreme Court of Appeal.
The case that was advanced by the respondent, briefly stated was as follows: Pursuant to section 4(1) of Proclamation No. 26 of 1963, a permission to occupy allotment no. 47 was issued to her maternal grandmother one Ma-Maya Nqezo(Ma-Maya) on 3 September 1963. Her late mother was Ma-Maya’s only child. She in turn had two children, respondent and one Nombini who passed away during 2005. By virtue of being the only surviving granddaughter to Ma-Maya, she is now the owner of the arable allotment in respect of which her grandmother was issued with a permission to occupy. From 2012, first, second, third, fourth, fifth, sixth, seventh, eight and nineth respondents started occupying the piece of land described hereinabove. They premise their entitlement to the portions they occupy on the basis that they bought same from tenth respondent and the Community Board Committee, respectively. Tenth respondent is the fifth appellant in these proceedings. She asserted further that her entitlement to the piece of land was confirmed by the outcome of proceedings presided over by Chief Ndamase at the Hadini Great Place following a complaint that she had lodged in this regard. To this end, she referred the court to copies of attendance registers as well as minutes relating to meetings held at Hadini Great Place and Ncipizeni Sublocation. Also annexed thereto are a number of hand drawn sketches.
The application was opposed essentially on the basis that it was ill-conceived in that it was based on a mistaken belief that the appellants were occupying allotment no. 47 when in fact they were occupying allotment no. 26. In respect of allotment no. 26, a permission to occupy was issued to fifth appellant’s late father. The other defence that was raised by the appellants was that the respondent failed to prove that she had locus standi injudicio to apply for the eviction of the appellants from the piece of land described as allotment no. 47 Zitatele Administrative Area. This by failing to prove that she was the owner of land or alternatively that she was in charge of the piece of land in question.
The judge a quo identified the issues that arose for determination as being whether the respondent had a right over the land in question which would clothe her with the necessary locus standi injudicio. Secondly, whether the application complies
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Beshe J
with the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 and satisfies the requirements of the Act. The court also acknowledged that the matter turned on a dispute as to whether the land in dispute is allotment no. 47 or 26. In my view, this dispute was indeed the nub of the matter and encompasses the point raised by the appellants regarding locus standi. This appeal in my view turns on this narrow point. Namely whether the application in view of this dispute of fact could be decided on the papers as they were.
The respondent was alerted to the existence, by the appellants of what they referred to as ‘a material and genuine dispute of fact which could only be resolved by expert evidence . . .’.
The dispute as to whether the land in question is allotment no. 47 or 26 was not raised for the first time in resistance of the application. It was the subject of dispute resolution proceedings before the local chief from circa 2012 until it was ‘resolved’ in favour of the respondent in 2018. A number of documents comprising, inter alia, of copies of attendance registers and what purports to be minutes of meetings in manuscript recorded in isiXhosa were annexed to respondent’s founding papers. The minutes are headed ‘NCIPIZENI SUBLOCATION ARABLE LAND ISSUE and MEETING HELD AT HADINI GREAT PLACE’ respectively and bear different dates. Also annexed were hand drawn sketches without any explanation of what was depicted therein or who drew them.
In reply, regarding the issue of the two allotments no. 47 and no. 26 respondent delved deeply into the proceedings or meetings that were held at the Hadini Great Place. Outlining what transpired there, who said and did what culminating in a decision in her favour. Mention is made in relation to these proceedings at the Hadini Great Place of a Mr Magadla and Ms Nompuku amongst others. The abovementioned persons did not depose to confirmatory affidavits. It is not clear who compiled the minutes. That person also did not depose to a confirmatory affidavit. The minutes were not authenticated, there being no indication of whether they were confirmed to be an accurate record of what took place.
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Beshe J
After exploring the minutes of meetings held before the local authority at length, the court a quo remarked as follows:
Upon assessment of all evidence I am not convinced that the appellant’s version is far-fetched or untenable or am I satisfied as to the “inherent credibility” of the tenth respondent’s factual averments on the disputed facts. In my view the applicant has proven on a balance of probabilities that the allotment in dispute that has been occupied by the respondents is allotment no. 47. I am not satisfied that the respondent’ denial of their occupation of allotment no. 47 is genuine. A probability has not been shown to exist that the applicant’s version is either mistaken or false.
Mr Msindo further argued that the diagram annexed to the applicant’s...
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