Mbizana local Municipality v Mbizana Village Senoir Secondary School and Others (1210/06) [2008] ZAECHC 41 (18 March 2008)

Not reportable

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

In the matter between: Case No: 1210/06

Date Delivered:

MBIZANA

LOCAL MUNICIPALITY APPLICANT

AND

MBIZANA

VILLAGE SENIOR SECONDARY

SCHOOL 1ST

RESPONDENT

THE GOVERNING BODY: MBIZANA

VILLAGE SENIOR SECONDARY SCHOOL 2ND

RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL:

EDUCATION –PROVINCE OF THE EASTERN

CAPE 3RD

RESPONDENT

_______________

JUDGMENT

CHETTY, J

In motion proceedings, the applicant sought an order for the eviction of the first respondent from land described in its notice of motion as a portion of erf 110 Mbizana and marked “Y” on annexure “A” to its founding affidavit, a map of the Mbizana town planning scheme. It contended that it was the owner of the entire demarcated erf and that a small portion of it marked “X” was lawfully occupied by the first respondent by virtue of its beneficence. It alleged further that the first respondent had arrogated portion “Y” to itself by fencing it, that such conduct constituted an impairment of its rights of ownership of “Y”, was unlawful and hence the eviction of the first respondent therefrom expedient. What it omitted to disclose was, as the judgment appealed against demonstrates, crucial to the fate of the application. It is apposite at this juncture to record that annexure “A” records that it had been prepared by land surveyors Button and O’Connor and that the numerals 762 appear on “Y”.

In the answering affidavits filed on behalf of the respondents it emerged that the land from which the eviction of the first respondent was sought had, on the express instructions of the applicants’ then town clerk, been surveyed by a qualified land surveyor in the employ of Button and O’Connor during 1996 for demarcation for educational purposes. That process culminated in the land surveyor, Mr Hitchius, drafting a plan showing the proposed subdivision of the remainder of erf 110, the actual measurements and beacon positions. Upon submission of the plan aforesaid to the applicant, its town clerk Mr Dlangamandla signed the beacon certificate. It is common cause that the plan (GPH2) headed “The remainder of erf 110 Bizana” 7,8740ha is in fact the same land designated by the letters “X” and “Y” in annexure “A” to the applicant’s founding affidavit marked erf 762.

In paragraph 3 of the judgment I reproduced a letter addressed to all interested parties, including the applicant, by the department of local government and housing of the Eastern Cape Province advising that ministerial approval for the subdivision and rezoning of erf 110 had been obtained. Consequently, as the judgment shows there was no proper basis for the applicant obtaining the relief it sought. The application was accordingly dismissed.

The applicant now seeks leave to appeal against the judgment and order contending that there are reasonable prospects that another court may reach a conclusion different to mine. During argument, Mr Quinn who appeared together with Mr Hobbs for the applicant submitted that absent registration of the land in the deeds registry, the provincial government’s approval for the subdivision and rezoning of erf 110 for educational purposes lapsed. A fortiori, so the argument unfolded, the applicant remained the owner of erf 100. The submission is untenable. The non-registration of the property in the Deeds registry was, as the judgment shows an alternative argument advanced by applicant’s counsel at the hearing to stave off the inevitable dismissal of the application.

The applicant’s claim to ownership of erf 110 was, as the judgment shows, tenuous to say the least. It is clear from the plan prepared by Button and O’Connor and Hitchius’ affidavit that erf 110 was state land and as such properly allocated for educational purposes to the first respondent by the Provincial Government of the Eastern Cape. In the judgment I alluded to Hitchius’ uncontroverted account of the history of erf 110 until its rezoning. I omitted and with hindsight, perhaps remissly, to refer to a letter (annexure GPH 3) to the third respondent’s answering affidavit. That letter, addressed by the applicant’s then town clerk to the regional director of the department of local government and housing, enclosed a number of documents including the plan prepared by Button and O’Connor. The letter reads:-

“Application for Alienation of a portion of Commonage land for the Establishment of a proposed Comprehensive High School for Bizana

Application is hereby made for approval by the Honourable the Minister of Local Government and Housing for the alienation and subdivision of a portion of Commonage Land for the purpose of the establishment of Bizana Comprehensive High School for the Department of Education.

This application was recommend for approval by the Town Council of Bizana at its ordinary Meeting held on 26th July 1996 on condition that all the required infrastructure will be provided for by the applicant in this case the Department of Education is expected to provide Water, Roads and Electricity to the proposed site.

In support of this application the following documents are attached:

Application forms for subdivision duly completed.

Six copies of the Sketch Plan of the proposed subdivision depicting the erven concerned and the surrounding area.

An amount of R25.00 being consideration fee.

There were no objections received against the application.

Your assistance and approval of this application will be highly appreciated.

Yours faithfully

Town Clerk………………………….Bizana Municipality”

6. The response from the Provincial Government was to accede to his request and approval was granted for the subdivision and rezoning of erf 762. For the applicant to now contend that the failure by the first respondent to effect the registration of the erf in the Deeds registry restores ownership of the erf to it is disingenuous.

7. In the result the application for leave to appeal is dismissed with costs.

_______

D. CHETTY

JUDGE

OF THE HIGH COURT

For the Applicant: Adv Quinn SC and Adv Hobbs instructed by Keightley Incorporated

For the 3rd Respondent: Adv P V Msiwa instructed by S.Z. Jojo Attorneys