Ngwasheng v Kgomo and Others (4419/2019) [2021] ZALMPPHC 52 (24 August 2021)

Ngwasheng v Kgomo and Others (4419/2019) [2021] ZALMPPHC 52 (24 August 2021)

The court found that the first respondent failed to provide a sufficient and detailed explanation for the delay in filing his answering affidavit, but condonation was granted as the explanation covered the entire period. The points in limine raised by the first respondent, including non-joinder and prior adjudication by the Tribal Council, were dismissed as neither the Trust nor the Department would be prejudiced by the relief sought, and the Tribal Council lacked jurisdiction to grant the orders requested. The evidence established that the first respondent was allocated stand number 1865 but occupied stand number 1866, which had already been allocated to the applicant. The PTO issued to...

Citation
[2021] ZALMPPHC 52
Parties
Applicant: Matsobane Nehemiah Ngwasheng; Respondent: Daniel Kgomo; Respondent: Mokopane Traditional Council; Respondent: Limpopo Provincial Government; Respondent: Department of Co-operative, Governance, Human Settlement and Traditional Affairs Mogalakwena Local Municipality; Respondent: Surveyor General, Limpopo; Respondent: Evelyn Mabatho Mohango
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
24 August 2021
Case Number
4419/2019
Procedural Posture
Review Application / Judgment
Outcome
Application granted in favour of the applicant.
Judges
M V Semenya
Legal Topics
Permission to Occupy, Declaratory Relief, Non Joinder, Allocation of Land, Condonation, Jurisdiction of Traditional Council
Land and Property Civil Procedure Permission to Occupy Declaratory Relief Non Joinder Allocation of Land Condonation Jurisdiction of Traditional Council

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Parties

Matsobane Nehemiah Ngwasheng

Applicant

Daniel Kgomo

Respondent

Mokopane Traditional Council

Respondent

Limpopo Provincial Government

Respondent

Department of Co-operative, Governance, Human Settlement and Traditional Affairs Mogalakwena Local Municipality

Respondent

Surveyor General, Limpopo

Respondent

Evelyn Mabatho Mohango

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Permission to Occupy (PTO) issued to the first respondent is valid and lawful.
  2. 2 Whether the allocation of stand number 1865 to the first respondent by the second respondent was lawful.
  3. 3 Whether the applicant is entitled to a declaratory order regarding the boundaries and occupation of the land.

Ratio Decidendi

The court found that the first respondent failed to provide a sufficient and detailed explanation for the delay in filing his answering affidavit, but condonation was granted as the explanation covered the entire period. The points in limine raised by the first respondent, including non-joinder and prior adjudication by the Tribal Council, were dismissed as neither the Trust nor the Department would be prejudiced by the relief sought, and the Tribal Council lacked jurisdiction to grant the orders requested. The evidence established that the first respondent was allocated stand number 1865 but occupied stand number 1866, which had already been allocated to the applicant. The PTO issued to...

Court Disposition

Application granted in favour of the applicant.

Orders

  • It is declared that the piece of land from which the first respondent operates a business known as Dan’s Scrapyard under PTO in stand number 1865 falls within the boundaries of stand number 1866, Ga-Mitchel, Sekgakgapeng as per Surveyor General No: 8977/1999.
  • It is declared that PTO dated 9 July 2012 under Stand number 1865 and issued to or in favour of the first respondent by the second respondent is fatally flawed and is of no force and effect.