The founding affidavit of the City Engineer Madoda D. Dlamini is filed in support thereto. Various annexures pertinent to the Applicant's case are also filed of record.
The 1st and 2nd Respondents oppose the granting of the order and have filed the answering affidavit of the 2nd Respondent. In turn the Applicant filed a replying affidavit in answer to the Respondents' affidavit.
The Respondents had raised preliminary objections in their answering affidavit which were heard by Masuku J who dismissed them in his judgement dated the 7th April 2004.
The matter then appeared before me on the merits in the contested motion of the 28th May 2004 where I heard submissions on the law and further directed that viva voce evidence be led. It became evident when the matter was argued that there was a dispute between the parties as to the exact location of the school in relation to the Development Code.
The facts of the matter were crispy summarised by Masuku J as follows:
"In the year 2003, the Applicant, a local Municipality, duly established in terms of the provisions of the Urban Government Act 8/1969 set out on a crusade to stop the seeming mushrooming of schools in its jurisdictional area, which in its view were operating illegally and in contravention of its development code.
As a result of this crusade, the Applicant moved a number of applications before this court interdicting the use of various properties other than for residential purposes. The lsl Respondent is one of such school".
The defence advanced by the Respondents is found in paragraph 26 of the answering
affidavit of the 2nd Respondent. He avers as follows:
"AD Paragraph 31
The contents herein are denied and Applicant is put to strict proof.
In particular I deny that the school is located in a residential area which is peaceful. The general area where the school is located is noisy. To put the court on (sic) the picture, this