Govender NO and Others v Mahilal and Another (4870/20) [2011] ZAKZDHC 43 (10 May 2011)

Govender NO and Others v Mahilal and Another (4870/20) [2011] ZAKZDHC 43 (10 May 2011)

The court found that the property in question is designated as agricultural land according to the title deed and supporting documents, and has not been proclaimed as a township. The applicants failed to discharge the onus of rebutting the presumption under section 2(2) of ESTA. As a result, the proceedings ought to have been brought under ESTA, not the PIE Act. Without party consent as required by ESTA, the court lacks jurisdiction to hear the application. The application was dismissed on this basis, and costs were awarded to the first respondent.

Citation
[2011] ZAKZDHC 43
Parties
Applicant: Loganathan Govender N.O.; Applicant: Gonaseelan Govender N.O.; Applicant: Poobalan Govender N.O.; Applicant: Valaythum Govender N.O.; Applicant: Yoganathan Govender N.O.; Applicant: Coopamma Govender; Applicant: Gopaul Angappan; Applicant: Mala Tewarie Angappan; Respondent: Ramachul Mahilal; Respondent: Ethekwini Municipality
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
10 May 2011
Case Number
4870/20
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed for lack of jurisdiction; costs awarded to first respondent.
Judges
Radebe
Legal Topics
Jurisdiction, Extension of Security of Tenure Act, Prevention of Illegal Eviction Act, Agricultural Land, Onus of Proof
Land and Property Civil Procedure Jurisdiction Extension of Security of Tenure Act Prevention of Illegal Eviction Act Agricultural Land Onus of Proof

Case Brief

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Parties

Loganathan Govender N.O.

Applicant

Gonaseelan Govender N.O.

Applicant

Poobalan Govender N.O.

Applicant

Valaythum Govender N.O.

Applicant

Yoganathan Govender N.O.

Applicant

Coopamma Govender

Applicant

Gopaul Angappan

Applicant

Mala Tewarie Angappan

Applicant

Ramachul Mahilal

Respondent

Ethekwini Municipality

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the proceedings should have been brought under the Extension of Security of Tenure Act (ESTA) rather than the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act).
  2. 2 Whether the court has jurisdiction to entertain the application in light of the applicable legislation.
  3. 3 Whether the property in question qualifies as agricultural land under ESTA.

Ratio Decidendi

The court found that the property in question is designated as agricultural land according to the title deed and supporting documents, and has not been proclaimed as a township. The applicants failed to discharge the onus of rebutting the presumption under section 2(2) of ESTA. As a result, the proceedings ought to have been brought under ESTA, not the PIE Act. Without party consent as required by ESTA, the court lacks jurisdiction to hear the application. The application was dismissed on this basis, and costs were awarded to the first respondent.

Court Disposition

Application dismissed for lack of jurisdiction; costs awarded to first respondent.

Orders

  • The application is dismissed with costs.
  • The first respondent is granted leave to withdraw the counter-application.