IN THE HIGH COURT OF ESWATINI
Case No. 1022/16
In the matter between:
FLORENCE SIBONGILE BHEMBE PLAINTIFF
MINAH SIMELANE DEFENDANT
Neutral citation: Florence Sibongile Bhembe [1022/16]  SZHC 92 (4th June, 2019)
Coram: FAKUDZE, J
Heard: 14th February, 2019
Delivered: 4th 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.
 On the 8th 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 28th 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 26th 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:-
- 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.
- Costs of suit;
- Further and/or alternative relief.
SECOND INSPECTION IN LOCO
- 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.
- 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.
- 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
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.
JUDGE OF THE HIGH COURT
PLAINTIFF: P. DLAMINI
DEFENDANT: V. THOMO