when suggesting that he applied to the Oshikoto Communal Land Board because the appellant did not exist in 2005/2006, as the appellant has been in existence at all material times since 2003. Appellant also argued that respondent produced no evidence of its alleged application to the Oshikoto Communal Land Board, so the respondent has not established that he has ever made a valid application for permission to retain the perimeter fence. Appellant also contended that there are a number of disputes of fact on the papers. Given that the respondent elected to proceed by way of notice of motion for final relief, and not to seek a referral to oral evidence, those factual disputes fall to be resolved on the approach adopted in the Plascon-Evans case. Appellant further argued that the respondent did not have a right to fence the land before the commencement of the Act. Furthermore, appellant argued, given that the grazing farm constituted commonage, even if the Ondonga Traditional Authority had purported to grant a right to erect a perimeter fence, it had not had the authority to do so, given that Reg 10(2) of the Bantu Areas Land Regulations issued on 11 July 1969 prohibited the erection of fencing of commonage. The appellant also submitted that the erection of the fences was unlawful, whenever it took place because no person had the power to authorise the erection of fences on commonage, in breach of the rights of the members of the community. Finally, appellant argued that the application for a final interdict was misconceived in light of the respondent’s failure to have the decision of the Board reviewed and set aside. Therefore, so counsel argued, the interdict should not have been granted, the appeal should be upheld with costs, and the order of the High Court should be replaced with an order that the rule nisi is discharged.
when suggesting that he applied to the Oshikoto Communal Land Board because the appellant did not exist in 2005/2006, as the appellant has been in existence at all material times since 2003. Appellant also argued that respondent produced no evidence of its alleged application to the Oshikoto Communal Land Board, so the respondent has not established that he has ever made a valid application for permission to retain the perimeter fence. Appellant also contended that there are a number of disputes of fact on the papers. Given that the respondent elected to proceed by way of notice of motion for final relief, and not to seek a referral to oral evidence, those factual disputes fall to be resolved on the approach adopted in the Plascon-Evans case. Appellant further argued that the respondent did not have a right to fence the land before the commencement of the Act. Furthermore, appellant argued, given that the grazing farm constituted commonage, even if the Ondonga Traditional Authority had purported to grant a right to erect a perimeter fence, it had not had the authority to do so, given that Reg 10(2) of the Bantu Areas Land Regulations issued on 11 July 1969 prohibited the erection of fencing of commonage. The appellant also submitted that the erection of the fences was unlawful, whenever it took place because no person had the power to authorise the erection of fences on commonage, in breach of the rights of the members of the community. Finally, appellant argued that the application for a final interdict was misconceived in light of the respondent’s failure to have the decision of the Board reviewed and set aside. Therefore, so counsel argued, the interdict should not have been granted, the appeal should be upheld with costs, and the order of the High Court should be replaced with an order that the rule nisi is discharged.
Chairman%20Ohangwena%20Communal%20Land%20Board%20NO%20v%20Wapulile%20(SA%2081%20-%202013)[2017]%20NASC%20(8%20%20June%202017).docx