Bhembe v Simelane (1022/2016) [2019] SZHC 92 (04 June 2019);

 

 

IN THE HIGH COURT OF ESWATINI

              JUDGMENT

Case No. 1022/16

In the matter between:

FLORENCE SIBONGILE BHEMBE                        PLAINTIFF                 

V      

MINAH SIMELANE                                                   DEFENDANT

Neutral citation:  Florence Sibongile Bhembe [1022/16] [2019] SZHC 92 (4^th June, 2019)

Coram:                FAKUDZE, J

Heard:                 14^th February, 2019

Delivered:            4^th June, 2019

Summary:           Property law – Dispute over ownership of Plot No. 51 of                                               Msunduza Township – A mix up in the allocation of plots took                                      place – Held that Municipal Council of Mbabane, Office of                                 Surveyor General and the Deeds Registry  corrects anomaly –                              each party to bear its own costs.

 

BACKGROUND

[1]     On the 8^th June, 2016, the Plaintiff filed summons against the Defendant.           The substance of the Plaintiff’s claim is captured in the Particulars of claim    as follows:

                   “4 Plaintiff is the owner of Lot No. 51 situate in the Msunduza                                      Township Extension No.2, Mbabane Urban Area, District of Hhohho,                          Swaziland, measuring 372 Square Metres.  See Annexure “A” being                             the Deed of Transfer of the said property to the Plaintiff.

                   5.  The Defendant has since 2004 erected a building on the                                  Plaintiff’s property and to date she is staying in the said building.                        Using the Municipal Council’s scale of valuation, as per the 2012                        valuation when it was last done, the value of the land upon which the                            encroachment exists is the sum of E47,000.00 (Forty Seven Thousand                            Emalangeni).  See Annexure “B” being the Municipal Council of                        Mbabane Valuation report of the said property.

                   6. On learning that the Defendant has erected a building on her                           property, the Plaintiff requested the Defendant to vacate her property                             as it belongs to her and she refused claiming that it is her property.                      Plaintiff further reported the Defendant’s encroachment to her                                       property to the Municipal Council of Mbabane and to the Surveyor                      General’s office.  The Municipal Council, through the office of the City                Engineer, wrote a letter dated 28^th July, 2004 advising her against the                 illegal occupation of Plaintiff’s property, and further advising her to                              vacate this property.  Defendant did not comply with this directive                        from the Municipal Council.  See “Annexure C” being the letter dated               26^th July, 2004 from the City Engineer.

                   7. I wish to state that through the letter addressed to Anton S. Simelane                I am advised and further believe that the said Anton S. Simelane is the                 biological father of the Defendant and used to own Plot 52 Msunduza                           Township Extension No. 2 Mbabane Area District of Hhohho, and he                           used to stay in this property before his demise.  I am equally advised                              that in 2004 Anton S. Simelane was already late.

                   8. Despite demand the Defendant refuses and/or fails to vacate Plot                     No. 5, Msunduza, Mbabane Urban Area, District of Hhohho.

          Wherefore Plaintiff pray that an order hereby issue as against the Defendant     in the following terms:-

1.      Compelling the Defendant to vacate and/or remove the encroachment      and make good the land upon which it stands within two (2) weeks of       being served with the court order.
2.      Costs of suit;
3.      Further and/or alternative relief.

 

1.  

 

ORAL EVIDENCE

1.  

 

1.  

 

1.  

 

SECOND INSPECTION IN LOCO

1.  
2.  

1.      The general plan and the numbering of plots at Msunduza never     changed since 1955 which is the year the survey of the Township was     done.
2.      The Title Deeds do not corresponds with the occupation.  Plot number    50 belongs to Nxumalo Emely Lomakholwa and she currently occupies   Plot No. 52.  Plot No. 51 belongs to Bhembe Sibongile Florence.  Plot     No. 52 belongs to Simelane Sigananda Anthony who currently occupies   Plot 51.  Plot No. 53 belongs to Nkambule Sophie Nontombi who currently occupies Plot No. 54.  Plot No.54 belongs to Qwabe Lindiwe Cynthia who currently occupies Plot No. 55.  Plot No. 55 belongs to          Qwabe Themba Nathan who currently occupies Plot No. 56.  Plot No.         56 belongs to Mbuli Sophia who currently occupies Plot No. 57.
3.      Based on the above information, plot No. 50 is vacant yet it belongs to      Nxumalo Emely Lomakholwa who is occupying Plot No. 52.  All the      above mentioned Plots are equal in size (372 square metres) except for    Plot No. 50 (325 square metres).

COURTS ANALYSIS AND CONCLUSION

1.  

The possibility in the wrong allocation of the plots to the occupants cannot be

ruled out.If the court were to order that the Defendant be evicted, this would have a negative effect not only on the defendant but also on occupants of Plot 52, 53, 54, 55, 56 and 57.This court’s humble view is that this problem can be rectified by the Municipal Council of Mbabane working together with the office of the Surveyor General and the Deeds Registry Office.

 

 

 

 

 

 

 

1.  

 

 

•  

                                                M.R. FAKUDZE

                                      JUDGE OF THE HIGH COURT

 

PLAINTIFF:         P. DLAMINI

DEFENDANT:    V. THOMO