Seshoene v Masogo and Others (707/2014) [2024] ZALMPPHC 105 (30 August 2024)

Seshoene v Masogo and Others (707/2014) [2024] ZALMPPHC 105 (30 August 2024)

The court found that the respondents unlawfully and unjustifiably encroached on the applicant's property by constructing a garage without municipal approval and in contravention of the boundary. The applicant's right to full ownership and enjoyment of her property was materially interfered with. The respondents were notified of the encroachment and failed to take remedial action. The court exercised its discretion, holding that compensation would perpetuate the unlawful conduct and was not a just and equitable solution. Instead, the court ordered demolition or partial demolition of the encroaching structure, subject to certification by a qualified engineer that partial demolition would...

Citation
[2024] ZALMPPHC 105
Parties
Applicant: Mokgadi Annisa Seshoene; Respondent: Nape Phineas Masogo; Respondent: Mahlodi Wilhemina Masogo; Respondent: The Local Municipality of Polokwane
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
30 August 2024
Case Number
707/2014
Procedural Posture
Civil Application / Final Judgment After Oral Evidence and Heads of Argument
Outcome
Application granted in favour of the applicant; demolition or partial demolition of the encroaching structure ordered; costs awarded to the applicant.
Judges
GC Muller
Legal Topics
Unlawful Encroachment, Demolition Order, Common Law Ownership, Municipal Regulations, Compensation Vs Removal
Land and Property Civil Procedure Unlawful Encroachment Demolition Order Common Law Ownership Municipal Regulations Compensation Vs Removal

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Parties

Mokgadi Annisa Seshoene

Applicant

Nape Phineas Masogo

Respondent

Mahlodi Wilhemina Masogo

Respondent

The Local Municipality of Polokwane

Respondent

Procedural Posture

Civil Application / Final Judgment After Oral Evidence and Heads of Argument

Legal Issues

  1. 1 Whether the respondents unlawfully and unjustifiably encroached on the applicant's property by constructing a garage.
  2. 2 Whether the respondents were notified of the encroachment and failed to remedy it.
  3. 3 Whether the applicant is entitled to a demolition order or compensation for the encroachment.

Ratio Decidendi

The court found that the respondents unlawfully and unjustifiably encroached on the applicant's property by constructing a garage without municipal approval and in contravention of the boundary. The applicant's right to full ownership and enjoyment of her property was materially interfered with. The respondents were notified of the encroachment and failed to take remedial action. The court exercised its discretion, holding that compensation would perpetuate the unlawful conduct and was not a just and equitable solution. Instead, the court ordered demolition or partial demolition of the encroaching structure, subject to certification by a qualified engineer that partial demolition would...

Court Disposition

Application granted in favour of the applicant; demolition or partial demolition of the encroaching structure ordered; costs awarded to the applicant.

Orders

  • It is declared that the first and second respondents unjustifiably and unlawfully constructed an immovable structure on the applicant's property by way of encroachment as described in the founding affidavit.
  • The first and second respondents are ordered to demolish or partly demolish the encroaching structure, provided a suitably qualified engineer certifies that partial demolition will not compromise structural integrity, and to remove all building rubble and restore the area to its prior state.