Setsing Shopping centre (Pty) Ltd v Khan N.O and and Another (4480/2005) [2005] ZAFSHC 156 (18 December 2005)

Setsing Shopping centre (Pty) Ltd v Khan N.O and and Another (4480/2005) [2005] ZAFSHC 156 (18 December 2005)

The applicant is the registered owner of the property, and registration in the Deeds Office is conclusive proof of ownership. The respondents, as trustees of a trust, do not qualify for protection under the Interim Protection of Informal Land Rights Act, which expired in December 2003. Even if the Makhalaneng Tribe had informal rights, they had no authority to sell the property in 2005. The respondents' possession is prima facie wrongful, and the applicant is entitled to restoration of possession and the demolition of structures erected by the respondents. The costs order is amended to exclude attorney and own client scale and Sheriff’s fees, as no justification was provided for such costs.

Citation
[2005] ZAFSHC 156
Parties
Applicant: Setsing Shopping Centre (Pty) Ltd; Respondent: Hamida Bibi Khan N.O.; Respondent: Amod Khan N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 December 2005
Case Number
4480/2005
Procedural Posture
Urgent Application / Return Date of Rule Nisi
Outcome
The amended rule nisi is confirmed; the applicant is granted the relief sought, except for the costs order, which is amended.
Judges
G.A. Hattingh
Legal Topics
Interdict, Possession, Informal Land Rights Act, Ownership, Registration of Land
Land and Property Civil Procedure Interdict Possession Informal Land Rights Act Ownership Registration of Land

Case Brief

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Parties

Setsing Shopping Centre (Pty) Ltd

Applicant

Hamida Bibi Khan N.O.

Respondent

Amod Khan N.O.

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi

Legal Issues

  1. 1 Whether the respondents are entitled to occupy and build on the applicant's property.
  2. 2 Whether the Informal Land Rights Act protects the respondents' occupation and alleged purchase.
  3. 3 Whether the applicant is entitled to restoration of possession and demolition of structures.

Ratio Decidendi

The applicant is the registered owner of the property, and registration in the Deeds Office is conclusive proof of ownership. The respondents, as trustees of a trust, do not qualify for protection under the Interim Protection of Informal Land Rights Act, which expired in December 2003. Even if the Makhalaneng Tribe had informal rights, they had no authority to sell the property in 2005. The respondents' possession is prima facie wrongful, and the applicant is entitled to restoration of possession and the demolition of structures erected by the respondents. The costs order is amended to exclude attorney and own client scale and Sheriff’s fees, as no justification was provided for such costs.

Court Disposition

The amended rule nisi is confirmed; the applicant is granted the relief sought, except for the costs order, which is amended.

Orders

  • Respondents are interdicted from continuing any further building activities on erven 12050, 291 and 1077 Phuthaditjhaba A, D and B, district Harrismith, Free State Province.
  • Respondents must restore applicant's possession of the property.