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[2015] ZAGPPHC 542
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Mokoena and Others v Malaza and Others (2014/31873) [2015] ZAGPPHC 542 (29 July 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
CASE NO: 2014/31873
DATE:29 JULY 2015
In the matter between:
KENNEHT TSHEPO
MOKOENA
...........................................................................
1ST
APPLICANT
STEFAAN
SITHOLE
................................................................................................
2ND
APPLICANT
FANA ENOCH
NKOSI
..............................................................................................
3RD
APPLICANT
QONDENI
MATHEBULA
........................................................................................
4TH
APPLICANT
THE SOMHLOLO
TRUST
.......................................................................................
5TH
APPLICANT
And
MALAZA
LILLIAN
...............................................................................................
1ST
RESPONDENT
SHABALALA
POPPY
...........................................................................................
2ND
RESPONDENT
PERTUNIA
NKOSI
...............................................................................................
3RD
RESPONDENT
MKHONZA
NOMTHANDAZO
..........................................................................
4TH
RESPONDENT
J U D G M E N T
WRIGHT J
1. The first to third applicants are
the trustees of the fourth applicant trust. The trust owns a farm and
has done so since 23
May 2007. The applicants seek the eviction of
the respondents from a portion of the farm, portion VO9. They do not
seek the removal
of the respondents from the farm as a whole. The
applicants allege that the respondents are unlawful occupiers of VO9.
The applicants
want to be able to conduct forestry and extract gum
from trees on VO9. The farm is held in trust by the trustees for the
benefit
of the members of the Eludlambedlwini traditional community.
The applicants allege that when the trust acquired the farm the
respondents
resided on a different part of the farm to VO9. The
applicants emphasise that the respondents do not occupy part VO9.
They are
simply in the process of building there illegally. They
reside on a different part of the farm to part VO9.
2. The first respondent is a woman. She
says that neither she nor the other respondents have built illegal
structures. The structures
were built before the trust acquired the
land. She was born and grew up on the farm. Her parents lived, died
and were buried on
the farm. She says that she is a lawful occupier
of the farm under The
Extension of Security of Tenure Act 62 of 1997
.
She says that she has not built new structures. She simply maintains
old ones. She says that a brick structure on VO9 is not hers
but
belongs to a neighbour.
3. The second, third and fourth
respondents make allegations of a similar nature. I am unable to
decide the facts properly on paper.
In my view the facts must be
established at a trial preceded by full pleadings and discovery.
ORDER
1. The notice of motion stands as a
simple summons.
2. The notice of intention to oppose
stands as a notice of intention to defend.
3. The applicants are to deliver a
declaration by 31 August 2015.
4. Thereafter the matter is to proceed
as a trial action.
5. The question of costs is reserved.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION,
PRETORIA
On behalf of the Applicants: Adv D
Mtsweni
Instructed by: S Roux Attorneys Inc
012 460 0666
On behalf of the Respondents: Adv G
R Egan
Instructed by: N. Maharaj Attorneys
011 867 8080
Date of Hearing: 29 July 2015
Date of Judgment: 29 July 2015