S v Mofokeng

• Jurisdiction: South Africa
• Judge: Hofmeyr J and Klopper J
• Judgment Date: 10 March 1966
• Citation: 1966 (2) SA 329 (O)
• Hearing Date: 28 February 1966
• Court: Orange Free State Provincial Division

A Hofmeyr, J.:

The appellant was charged with a contravention of sec. 1 (a) of the Prevention of Illegal Squatting Act, 52 of 1951, in that she, without lawful reason, entered or remained on site 656 in the 'old location' of Harrismith without the permission of the owner or lawful occupier of such land:

B The appellant was convicted on the charge and sentenced to a fine of R2 or 14 days' imprisonment. It was further ordered in terms of sec. 3 of the Act that she, her family, dependants and their belongings be removed from the site to premises in the new location and that all buildings and structures erected by or on behalf of the appellant on C stand 656 be demolished and all usable materials be removed and transferred to the new location.

The first point taken on appeal was that the magistrate erred in finding that the State had proved, beyond a reasonable doubt, that the land upon which the appellant was resident at the relevant time was the property D of the Harrismith Town Council. The objection was based particularly upon the alleged unjustified acceptance by the magistrate as conclusive of the evidence of Dreyer in this regard in view of Dreyer's ignorance of the disposal or otherwise of land belonging to the Municipality during the period 1952-53.

I can, however, find no fault with the decision of the magistrate on the E issue. The evidence of van der Walt, Ferreira and Dreyer clearly constituted at least prima facie evdence of the allegation that the Town Council of Harrismith was the owner of the 'old location' wherein site 656 was situate. There was no attempt on the part of the appellant to deny this.

F The appellant herself admitted that she received permission to live on the site and to build a house thereon from the Town Council and that sanitary and other fees were regularly paid to the Town Council by the site holders of the 'old location'. See R v Ndabambi, 1959 (2) SA 454 (AD). In these circumstances the magistrate was clearly entitled to accept the evidence placed before him as sufficient to discharge the onus resting upon the State.

G The second point taken was that the magistrate erred in finding that the appellant was resident upon the said land without lawful reason. It was submitted that the State failed to discharge the onus which rested upon it of proving that the appellant had no antecedent right whatever in law to occupy the site in question.

H Mr. Soggot relied for this proposition...