Maselsele N.O. v Greater Giyani Municipality and Others (5054/2013) [2015] ZAGPPHC 413 (14 May 2015)

Maselsele N.O. v Greater Giyani Municipality and Others (5054/2013) [2015] ZAGPPHC 413 (14 May 2015)

The court found that the plaintiff's particulars of claim failed to disclose the necessary averments to sustain a cause of action under the Upgrading of Land Tenure Rights Act, 112 of 1991. The plaintiff did not identify the properties as those contemplated in Schedule 1 or 2, nor did he allege entitlement under section 2 or 3 of the Act. Essential facts regarding the identity of the tribe, the nature of the rights granted under indigenous law, and the status of the land were omitted. The citation of parties was also incorrect, as trustees must be cited in their representative capacities. The particulars of claim were therefore excipiable and the exception was upheld.

Citation
[2015] ZAGPPHC 413
Parties
Plaintiff: Johannes Botha Solani Maselesele N.O.; Defendant: Greater Giyani Municipality; Defendant: Reformed Church SA (Lowveld); Defendant: The Trustees of the Sakina Property Trust; Defendant: The Trustees of the Ekson Ngobeni Trust
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 May 2015
Case Number
5054/2013
Procedural Posture
Exception Application / Exception to Particulars of Claim; Hearing and Ruling
Outcome
Exception upheld; plaintiff granted leave to amend particulars of claim within fourteen days; plaintiff ordered to pay costs.
Judges
Avvakoumides
Legal Topics
Upgrading of Land Tenure Act, Exception to Particulars of Claim, Tribal Land Rights, Pleading Requirements
Land and Property Civil Procedure Upgrading of Land Tenure Act Exception to Particulars of Claim Tribal Land Rights Pleading Requirements

Case Brief

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Parties

Johannes Botha Solani Maselesele N.O.

Plaintiff

Greater Giyani Municipality

Defendant

Reformed Church SA (Lowveld)

Defendant

The Trustees of the Sakina Property Trust

Defendant

The Trustees of the Ekson Ngobeni Trust

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Hearing and Ruling

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose sufficient averments to sustain a cause of action under the Upgrading of Land Tenure Rights Act, 112 of 1991.
  2. 2 Whether the plaintiff has properly pleaded entitlement to ownership of the land in terms of section 2 or 3 of the Act.
  3. 3 Whether the citation of the parties is correct and whether the dispute is properly identified.

Ratio Decidendi

The court found that the plaintiff's particulars of claim failed to disclose the necessary averments to sustain a cause of action under the Upgrading of Land Tenure Rights Act, 112 of 1991. The plaintiff did not identify the properties as those contemplated in Schedule 1 or 2, nor did he allege entitlement under section 2 or 3 of the Act. Essential facts regarding the identity of the tribe, the nature of the rights granted under indigenous law, and the status of the land were omitted. The citation of parties was also incorrect, as trustees must be cited in their representative capacities. The particulars of claim were therefore excipiable and the exception was upheld.

Court Disposition

Exception upheld; plaintiff granted leave to amend particulars of claim within fourteen days; plaintiff ordered to pay costs.

Orders

  • The exception is upheld.
  • The plaintiff is granted leave to amend his particulars of claim within fourteen days.