Not reportable

			IN THE HIGH COURT OF SOUTH AFRICA
			TRANSVAAL PROVINCIAL DIVISION

Dates: 16 and 18 February 2009

											Case 30488/06/07

In the matter between
BOAS GODFREY MADISHA						PLAINTIFF

and
CHERRA MOTLAKWANA						FIRST DEFENDANT

STELLA MOJAPELA							SECOND DEFENDANT

Neighbours - dispute as to border - surveyor's testimony accepted in the absence of contrary evidence concerning prescription or another valid cause.

JUDGMENT

Van Rooyen AJ

[1] This is an application for a declaratory order as to the border between two properties and an interdict to prohibit future likely unlawful conduct in not abiding by the declaratory order. The defendants are required to remove an iron pale which is alleged to be on the property of the Plaintiff and which is said to represent the line of the border between the two properties. The pale, it is alleged, is 0,7 meter into the plaintiffs property.

[2] The Plaintiff and Defendants are neighbours in Atteridgeville, a suburb of Pretoria (now Tshwane). The First Defendant is married to the Second Defendant, who is the owner of the property. First Defendant was joined in this matter as a result of the application for the interdict, which the Court also has to consider.

[6] The defendants argued that the Plaintiff, the surveyor and everyone involved from the other side were misleading the Court. He questioned the integrity of the surveyor in so far as he could not, without checking his records, remember whether he did the survey in 2004 or 2005. Of course, it is perfectly legitimate for witnesses to check their records to ensure that they are providing the Court with the correct facts. The result is that the plaintiff has proved his case by leading the evidence of the surveyor that the iron pale was 0,7 meter into the stand of the Plaintiff, measured by the records of the Surveyor-General. The defendants were unable to show the contrary.

[7] Although I have been requested to order the First Defendant to remove the pale, I believe that the Plaintiff may do that himself.

[9] I am not satisfied that the plaintiff has made out a case for an interdict against the Defendants. Although the First Defendant is agitated by the claims of the Plaintiff, I do not believe that he poses a future risk to the property of the Plaintiff. Any interference with the execution of this order would, in any case, amount to contempt of the court order which I will issue. 

ORDER

1.	It is declared that the property of the Plaintiff is the size and has the boundaries as indicated in Annexure "A" of the Summons.
2.	The Plaintiff is entitled to remove all or any impediments including, but not limited to, an iron pale on Plaintiffs property, which, according to the Defendants, marks the border.

4.	Otherwise each party is to pay its own costs.

Acting Judge of the High Court

For the Plaintiff: G Scheepers instructed by Van Zyl, le Roux and Hurter, Pretoria. 
Defendant : in person.