The Mthatha high court has dismissed a R154m damages claim against Walter Sisulu University stemming from a 1995 “land swap” deal that went sour.
Sindiswa Jonas, the executor of former businessman Mzimkhulu Charles Jonas’s estate, instituted the damages claim against WSU in 2022, for what she said was the loss of profit and income caused by the university’s “unlawful occupation” of a 5,000m² plot of land since the early 1990s.
She said in court papers the occupation of the land was contrary to the terms of an agreement to exchange land that the deceased and an entity called the Emanuel Student Village had concluded in about 1993.
In terms of the agreement, Jonas undertook to exchange his property for another piece of land “at the Mazeppa turn-off”.
During 1995 on behalf of WSU’s predecessor, the former Eastern Cape Technikon, the Emanuel Student Village built 42 blocks of student accommodation on the land — each block housing eight students.
.
Despite the technikon’s development of the property, the land promised to Jonas in exchange for it was not transferred into his name.
The Eastern Cape Technikon ceased to exist in 2005, when merged with the Border Technikon and the University of Transkei to form WSU.
In 2018, about 23 years later, Jonas instituted court action claiming R18m damages for loss of rental income caused by WSU’s “wrongful occupation of the property”.
The need for an end to litigation and the protection of persons against harassment with second litigation on the same subject is at the heart of the defence of res judicata.
— Judge Lindiwe Rusi
The Mthatha high court rejected his claim on the basis that it had prescribed.
It said in terms of the law he had three years to lodge a claim and had failed to do so by 1998.
In the latest claim, Sindiswa Jonas said WSU had wrongfully benefitted from its occupation of the property that it had never owned, and it had enjoyed the use of it to the detriment of the Jonas estate.
She said that Jonas had intended to use the land to develop a Shell filling station and the R154m damages claimed was based on a calculation of the profit he would have made over the years if he had been able to do so.
But judge Lindiwe Rusi said that the special defence plea of res judicata raised by WSU must succeed.
That defence said that the matter had already largely been decided in the 2018 action.
“The need for an end to litigation and the protection of persons against harassment with second litigation on the same subject is at the heart of the defence of res judicata,” Rusi said.
She said like the 2018 claim, the 2022 claim had also prescribed.
She dismissed the claim and ordered Jonas to pay all the legal costs of the action.
Daily Dispatch
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.