CASE NO.
SCA CASE NO. 537/2011 LCC CASE NO. 147/2008 In the matter between:
KWALINDILE COMMUNITY APPLICANT
(First Respondent in the Court a quo)
and
KING SABATA DALINDYEBO MUNICIPALITY FIRST RESPONDENT (Applicant in the Court a quo)
CAPE GANNET PROPERTIES 118 SECOND RESPONDENT (PTY) LIMITED (Seventh Respondent in the Court a quo)
WHIRLPROPS 46 (PTY) LIMITED THIRD RESPONDENT (Tenth Respondent in the Court a quo)
ZIMBANE COMMUNITY FOURTH RESPONDENT (Second Respondent in the Court a quo)
BATHEMBU COMMUNITY FIFTH RESPONDENT (Third Respondent in the Court a quo)
MINISTER OF AGRICULTURE AND SIXTH RESPONDENT LAND AFFAIRS (Fourth Respondent in the Court a quo)
REGIONAL LAND CLAIMS COMMISSIONER: SEVENTH RESPONDENT EASTERN CAPE (Fifth Respondent in the Court a quo)
LANDMARK MTHATHA (PTY) LIMITED EIGHTH RESPONDENT (Sixth Respondent in the Court a quo)
PROUD HERITAGE PROPERTIES 119 NINTH RESPONDENT (PTY) LIMITED (Eighth Respondent in the Court a quo)
UWP CONSULTING (PTY) LIMITED TENTH RESPONDENT (Ninth Respondent in the Court a quo)
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE THAT the applicant hereby applies for leave to appeal to the above Honourable Court in accordance with Rule 19 of the Constitutional Court Rules and seeks the following relief:
1.
1.1 Granting the applicant leave to appeal against the Judgment of the Supreme Court of Appeal handed down on 1 June 2012 (in King sabata Dalindyebo Municipality v KwaLindile Community (537/2011) [2112] ZASCA 96).
1.2 Setting aside the Judgment of the Supreme Court of Appeal and replacing it with an Order in the following terms:
“The applicant’s cross appeal in respect of the first respondent’s application in terms of section 34 of the Restitution of Land Rights Act 22 of 1994 is upheld with costs.”
1.3 Ordering that the costs of the present appeal be paid by any respondent opposing it.
1.4 Further or alternative relief.
2.
BE PLEASED TO TAKE NOTE FURTHER that the Founding Affidavit of LOUISA NOMFUZO NDZUNGU together with the annexures thereto will be used in support of the application.
BE PLEASED TO TAKE NOTE FURTHER that the applicant has appointed Werksmans Attorneys, Johannesburg Office, 155 5th Street, Sandton, 2196, as the address at which notice and service of all processes in these proceedings shall be accepted.
BE PLEASED TO TAKE NOTICE FURTHER that in accordance with Rule 19(4) of the Honourable Court’s Rules, the respondents may, within 10 (TEN) days from the date upon which this application is lodged, respond thereto in writing, indicating whether or not the application for leave to appeal is being opposed, and if so, the grounds for such opposition and further that the respondent may lodge a cross- appeal as provided for in Rule 19(5).
BE PLEASED TO TAKE NOTICE FURTHER that in its response, any respondents who wish to oppose this application is required to:
(a) Indicate whether or not it consents to the grant of the leave to appeal and if not, the grounds for its opposition; and
(b) Appoint an address at which it will accept notice and service of all documents in these proceedings.
DATED at this day of 2012.
APPLICANT’S ATTORNEYS
MAGIGABA INCORPORATED Applicant’s Attorneys
144 Clarence Road Berea
DURBAN 4001
P O Box 61445 Bishopsgate 4008
Tel: 031 303 3137 Fax: 031 303 6434
(Ref: Mr M Magigaba/vs/L584) Locally represented by:
Werksmans Attorneys Johannesburg Office 155 5th Street
SANDTON 2196
Private Bag 10015 Sandton
2146
Docex 111 Sandton Tel: 011 535 8000 Fax: 011 535 8600
TO: THE REGISTRAR OF THE CONSTITUTIONAL COURT BRAAMFONTEIN
AND TO: DAYIMANI SAKHELA INC First Respondent’s Attorneys 7 Craister Street
uMTATA 5099
P O Box 1041 uMTATA 5099
(Ref: Mr Sakhela)
AND TO: COX YEATS
Second and Third Respondents’ Attorneys 21 Richefond Circle
Ridgeside Office Park Umhlanga Ridge DURBAN
4001
P O Box 913
UMHLANGA ROCKS 4320
Tel: 031 536 8500 Fax: 031 536 8088 (Ref: JG/wv/34A880001)
AND TO: CRIS BODLANI ATTORNEYS Fourth Respondent’s Attorneys 28 Madeira Street
uMTATA 5099
AND TO: BATHEMBU COMMUNITY
Fifth Respondent (Third Respondent in the Court a quo) (Did not participate in the proceedings)
AND TO: THE STATE ATTORNEY (uMTATA) Sixth and Seventh Respondents’ Attorneys Broadcar House
94 Sissons Street Fort Gale
uMTATA 5099
AND TO: LANDMARK MTHATHA (PTY) LIMITED
Eighth Respondent (Sixth Respondent in the Court a quo) (Abided the decision of the Court a quo)
AND TO: PROUD HERITAGE PROPERTIES 119 (PTY) LIMITED Ninth Respondent (Eighth Respondent in the Court a quo) (Did not participate in the proceedings)
AND TO: UWP CONSULTING (PTY) LIMITED
Tenth Respondent (Ninth Respondent in the Court a quo) (Abided the decision of the Court a quo)