About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 43
|
|
Govender NO and Others v Mahilal and Another (4870/20) [2011] ZAKZDHC 43 (10 May 2011)
IN THE KWAZULU-NATAL COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO. 4870/20
In the matter between:
LOGANATHAN GOVENDER N.O.
….......................
FIRST
APPLICANT
GONASEELAN GOVENDER N.O.
….....................
SECOND
APPLICANT
POOBALAN GOVENDER N.O.
…...........................
THIRD
APPLICANT
VALAYTHUM GOVENDER N.O.
…......................
FOURTH
APPLICANT
YOGANATHAN GOVENDER N.O.
….......................
FIFTH
APPLICANT
COOPAMMA GOVENDER
…..................................
SIXTH
APPLICANT
GOPAUL ANGAPPAN
…...................................
SEVENTH
APPLICANT
MALA TEWARIE ANGAPPAN
…............................
EIGHT
APPLICANT
AND
RAMACHUL MAHILAL
…...................................
FIRST
RESPONDENT
ETHEKWINI MUNICIPALITY
….....................
SECOND
RESPONDENT
HEARD ON: 10 MAY 2011
DELIVERED ON: 10 MAY 2011
JUDGEMENT
Page 2
RADEBE J:
The Applicant instituted
proceedings in terms of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act No.
19 of 1998 (PIE Act). The First
Respondent opposes the Application on the one point of substance,
namely, that the Applicants
ought to have brought these proceedings
in terms of the Extension of Security of Tenure Act, No 62 of 1997
(ESTA)
It was conceded on behalf of the
Applicants that in the event that this Court holds that the present
proceedings ought to have
been brought in terms of ESTA, then it
would follow that this Court does not have jurisdiction to entertain
the present application.
For this Court to have jurisdiction in a
matter there should be consent by the parties as provided for in
section 16 & 17
of ESTA. Failing consent of the parties, the
Court will not have jurisdiction and the application ought to fail
on that point
alone.
Page 3
In determining the issue, the Court
has had regard of the nature of:
the land in question (the
property) as defined in section 2 of ESTA;
the special conditions as
envisaged in the Title Deed which appears on Annexure “D”
on pages 35-42 of the indexed
papers;
the Zoning Certificate which is
Annexure “J” of the Applicants Founding Affidavit, page
56 of the indexed papers;
a letter from the
Surveyor-General, which is Annexure “K” of the
Applicants’ Founding Affidavit, on page 57
of the indexed
papers.
Mr Collingwood, for the Applicants,
submitted that in terms of Annexure “J” the property is
currently zoned as Special
Residential I. However, that is not the
tone of the contents of annexure “J”. The relevant
passage reads as follows:
Page 4
“…
the
property described as Potion 1 of Erf 776 Tongaat, is within the
jurisdiction of the eThekwini Municipality (North), and is
zoned
Special Residential I in terms of the Tongaat Town Planning Scheme
in
the course of preparation
…
(my
emphasis)
As
a result of the Strategic Framework Plan, and Local Area Plan
being
prepared
(my emphasis) for the Northern Entity, all development
proposals are also subject to environmental, traffic, stormwater and
geotechnical
assessments. No development proposals, will be approved
without these assessments being approved by the relevant approving
authorities.”
It is clear from the wording of the
said letter that the stage at which it was when Annexure J was
generated, namely on
July 2007, the zoning referred to
was is the preparation
process. The Applicants have not
shown by any other
document that the preparation has
been completed.
5. This leaves this Court to look at
the Title Deed, Annexure D,
under the conditions imposed
thereon, especially on page 4,
points A to D. read together with
the letter from the Surveyor-
General (Annexure K). The conditions
on the Title Deed are as
follows:
Page 5
“
A.
The
land may not be sub-divided without the
written
approval of the Controlling Authority as
defined
in Act No. 21 of 1940, read in conjunction with Act 44 of 1948.
Not
more than one dwelling house together with such outbuildings as are
ordinarily required to be used in conjunction therewith,
shall be
erected on the land except with the written approval of the
Controlling Authority as defined in Act 21 of 1940 and in
conjunction with Act No. 44 of 1948.
The
land shall be used for residential and agricultural purposes only
and no store or place of business or industry whatsoever
may be
opened or conducted on the land without written approval of the
Controlling Authority as defined in Act No. 21 of 1940,
read in
conjunction with Act No. 44 of 1948.
No
building or any structure whatsoever shall be erected within a
distance of 91,44 metres from the centre line of the national
road,
without the written approval of the Controlling Authority as defined
in Act No. 44 of 1948.
The above conditions contain
restrictions on the use of the land, which are applicable to
agricultural land.
Page 6
6. That the property is designated
as agricultural land is also borne
out by the fact that its ownership
was transferred to the
applicants as heirs in undivided
shares. Applicants 1 to 5 hold
the land in their representative
capacities on behalf of heirs who
have since passed on, and that in
terms of the relevant
provision of the Joint Will and
Testament of the Deceased which
appears on page 2 of the Title Deed
(page 38) of the Indexed
papers.
7. To strengthen the point regarding
the conditions set out above, I
refer also to Annexure “K”
page 57 of the indexed papers. This
is a letter dated 18 September 2009
(prior to the
commencement of these proceedings)
addressed to the
Applicants’ attorneys by the
Surveyor-General. In the third
paragraph thereof the following is
said:
“
The
Private Township Board deemed that an application under Ordinance 27
of 1949 was not required and that Act 21 of 1940 was applicable.
Since no application was made under Ordinance 27 none of the
proclamation requirements under this Ordinance were necessary.
Page 7
The conditions imposed by Act 21
of 1940 in conjunction with Act 44 of 1948 were applicable and
Portion 1 of
Erf 776 Tongaat was then first
registered under these conditions in Deed of Transfer 6492/1964”.
8. Section 2 of ESTA provides that
the Act shall apply to all
“
land
other than land in a township established,
approved proclaimed or otherwise
recognized as such in
term of any law or encircled by
such a township or
townships, but including:
(a)
any land within such township which has been
designated
for agricultural purposes i.t.o. any law
…
…
The property in question therefore
qualifies to be dealt with i.t.o. ESTA as: (i)
It
is clearly designated as agricultural land as envisaged in
the
Deed of Transfer, No. 6492/1964; (ii) It is not a
township
as it has not been established, nor approved nor
a
township as it has not been established, nor approved
nor
proclaimed as such in terms of any law. The Applicants
have
not succeeded in convincing this court that the
presumption
contained in Section 2 (2) of ESTA has been
rebutted.
Page 8
Section 2(2) of ESTA provides that:
“
land
in issue in any civil proceedings in terms of this Act Shall be
presumed to fall within the scope of this Act unless the contrary
is
proved.”
The burden of poof therefore falls
upon the Applicants, who have to discharge the onus on a balance of
probabilities.
9. The applicants have made lengthy
submissions in respect of the
proclamation of a township and the
procedures to be followed in
establishing a township. However,
nothing in the applicants’
submissions shows that such
proclamation has indeed be done
especially in contradiction of the
nature and conditions
tabulated in the Deed of Transer.
They have also not proved
that the land is not any land within
such a township approved or
proclaimed, or otherwise recognised
as such after
4 February 1997 in compliance with
Section 2 (2) of ESTA.
Page 9
10. I therefore make the finding
that those proceedings ought to
have been brought in terms of the
ESTA. Hence this Court
does not have jurisdiction to hear
the present application.
There is therefore no need to deal
with the First
Respondent’s
Counter-application based on an improvement
lie and/or undue enrichment, save
for the issue of costs
attendant thereto, which should
follow the result and be
awarded to the First Respondent.
I therefore make the following
order:
The Application is dismissed with
costs.
The First Respondent is granted
leave to withdraw the counter-application.
The Applicants are ordered to pay
the costs of the counter-application jointly and severally, the one
paying the others to be
absolved.
Page 10
__________________________
RADEBE J
APPLICANTS’
COUNSEL: A.D. COLLINGWOOD
INSTRUCTED
BY: KRISH NAIDOO, GOVENDER & CO.
C/O
HASSAN PARSEE & POOVALINGAM
FIRST
RESPONDENTS COUNSEL: N.N. DHEODUTH
INSTRUCTED
BY: I.C. MEER, MOTALA & CO.
C/O
DASHNEE REDDY ATTORNEYS