Tsakani v Thulamela Municipality

• Jurisdiction: South Africa
• Judge: Makhafola J
• Judgment Date: 02 September 2011
• Docket Number: 340 to 349/2011
• Court: Limpopo Local Division, Thohoyandu
• Hearing Date: 02 September 2011
• Citation: 2011 JDR 1300 (LT)

Makhafola J:

INTRODUCTION

[1]

The applicant and other 9 applicants have launched urgent applications to interdict the respondents from, amongst other prayers, constructing a road, at Lukunde Village that directly or indirectly encroaches their residential sites and violates their rights to ownership or occupation- thus unlawfully evicting them from their

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homes.

[2]

These matters appeared, before the Court for the first time on 2 August 2011 on the opposed motion roll. They were postponed thrice as requested by the parties for the purposes of settlement. With no settlement reached they were heard on 01 September 2011 and judgment was reserved to today 02 September 2011.

[3]

After the answering affidavits were filed the applicants replicated and also raised certain points in limine in particular the authority of the deponent to the answering affidavits, one Makondelele Helton Mathivha, the Municipality Manager of the 1st respondent. This document is marked MHMI on paginated page 40 on the index of Court Records:Volume 1.

[4]

This extract Resolution of the 1st respondent relates to the Council meeting no: 05\2011, which was held on 03 June 2011 a month and a couple of days before the applications were served on the respondents or even filed with the Registrar. The applications were filed as per rubber stamp of the Registrar on the face of the applications on 19 July 2011.

[5]

The said Resolution lacks the case numbers of the applications,

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the Municipal Manager was authorised to defend. But that can be understood that the said resolution could not contain them because when it was taken, the Council at the alleged meeting did not discuss the applications because, the Council had not received them. They were not issued as yet.

[6]

Ex facie the Resolution, it is a blanket "Power of attorney" which does not relate to the applications before Court. If it did, it would have specified the relevant Cases the Municipal Manager was authorised to defend.

[7]

This document is defective for the purposes of what it is meant to be for the reasons I have advanced above. The parties' names do not appear on the Resolution, as well as the nature of the matters to be defended are not disclosed.

[8]

In motion proceedings it is usual and desirable for the Resolution of the record of directors of a Company authorising litigation to be annexed to and proved by the...