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2005
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[2005] ZAFSHC 156
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Setsing Shopping centre (Pty) Ltd v Khan N.O and and Another (4480/2005) [2005] ZAFSHC 156 (18 December 2005)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 4480/2005
In
the case between:
SETSING
SHOPPING CENTRE (PTY) LTD
Applicant
and
HAMIDA BIBI KHAN
N.O.
1
st
Respondent
AMOD
KHAN N.O.
2
nd
Respondent
(the
trustees of Hamida Family Trust
)
JUDGEMENT:
HATTINGH, J
_____________________________________________________
HEARD ON:
18 DECEMBER 2005
_____________________________________________________
DELIVERED ON:
18 DECEMBER 2005
_____________________________________________________
[1] This is the return
date of a
rule
nisi
in
terms of which the respondents were called upon to show cause why the
following orders should not be made final:
a. why the respondents
should not be interdicted from continuing with any further building
activities on erven 12050, 291 and 1077
Puthaditjhaba A, D and B
respectively situated in the district Harrismith, Free State
Province.
b. why
the respondents should not restore applicants possession of the
property
ante
omnia.
c. why
the respondents should not immediately be ordered to vacate the
premises set out in (a) above.
d. why the respondents
should not be ordered to demolish and remove all fences and/or
construction on erven 12050, 291 en 1077 Phuthaditjhaba
A, D and B
respectively situated in the district Harrismith, Free State
Province, as constructed by the respondents within one (1)
month of
this order,
alternatively
should the respondents fail to comply with this order that the
Sheriff of the High Court is authorized to demolish and remove all
fences and/or construction in erven 12050, 291 and 1077
Phuthaditjhaba A, D and B respectively, situated in the district
Harrismith,
Free State Province as constructed by the respondents and
restore applicantâs free and undisturbed possession of the
property.
e. why the respondents
should not be ordered to pay the costs of this application on the
scale of attorney and own client, including
the fees of the Sheriff
of the High Court.
[2] It
is common cause that applicant is the registered owner of the
property as appears from the Deed of Transfer TG23167/2001.
[3] Registration of land
has existed in Holland since the 12
th
century. This system of land registration was introduced into South
Africa 1685. It is trite law that the effect of registration
is that
the ownership of a real right is adequately protected by its
registration in the Deeds Office. The system of land registration
was evolved for the very purpose of insuring that their should not be
any doubt as to the ownership of the persons in whose names
real
rights are registered. The act of registration is regarded as notice
to all the world of the ownership of the real right which
is
registered. That means that a person in whose name real right is
registered can prove his ownership by producing the registered
deed.
(cf.
FRYES
(PTY) LTD v REIS
1957 (3) SA (AD) 575 A â 583).
[4] Possession of an
ownerâs property by another is
prima
facie
wrongful.
The plaintiff does not have to allege all prove that the defendants
possession is wrongful or against the wishes of the
plaintiff.
(
CHETTY
v NAIDOO
1974 (3) SA 13
(A)).
[5] The respondents aver
that the said property was bought by the trust from the Makhalaneng
Tribe and that it paid R100 000,00 (one
hundred thousand rand) for
the property apparently on the 19
th
of September 2005 and that the property is protected in terms of the
interim protection of Informal Land Rights 31 of 1996.
[6] Mr.
Reinders for the applicant submitted that the respondent misconstrued
the application of the act in that:
(a) The respondent is
clearly a trust and therefore does not fall within the parameters of
a person as described in Section 1 of the
Informal Land Rights Act.
(b) That
the respondent is not part of a âtribeâ as described in Section
1.
(c) The
Act does not confer ownership of property on any person or tribe. It
merely forbids that a person may be deprived of any
formal right to
land.
(d) The Act clearly
states that the sale or this possession of any land shall be subject
to any existing informal rights to that land.
The Act has in any
case expired in December 2003. By the submissions of Mr. Reinders in
this regard is accepted as correctly reflecting
the legal position.
[7] I
therefore hold that:
The trust is not
protected by the Act;
The Act is not
applicable any more and has expired;
That even if the
so-called tribe, did have any rights to the said property, it in any
case did not have any rights in terms of the
Act to sell the
property in 2005 as alleged by respondents.
[8] The
rule
nisi
called upon respondents to pay the costs of this application on the
scale of attorney and own client, including the fees of the Sheriff
of the High Court. No acceptable submissions were made to
substantiate this order as to cost. Paragraph 2.5 of the
rule
nisi
is
amended by deleting the following:
ââ¦
on the scale of attorney and own
client, including the fees of the Sheriff of the High Court.â
[9] So amended the
rule
nisi
is
confirmed.
________________
G.A.
HATTINGH, J
/em