Durban - A Morningside homeowner who is at odds with his neighbours over a boundary wall dispute has turned to the Justice Service Commission for help after a high court judge ruled against him and he was denied appeal.
Siza Mkhize, who owns a house on Innes Road, felt that Durban High Court Judge Mfuniselwa Nkosi had ignored his key evidence and was biased in the matter that was brought by his neighbours over a boundary wall.
Mkhize has been at loggerheads with his close neighbour over a boundary wall that was built by the other adjacent neighbour in 2020. The boundary wall in question, separating three properties, was rebuilt after it was collapsed by floods.
However, the other neighbours were unhappy with the decision and approached the court, accusing Mkhize of encroaching on the boundary and alleging that he had not sought approval from eThekwini Municipality.
They also complained that the wall was substandard, posing a threat to their property. Mkhize denied the allegations in court and explained that he was rebuilding an already existing structure which did not require new approval from the municipality.
He also mentioned that he was not the one who paid for it but the other neighbour, after they all agreed to rebuild the wall to protect their properties as they are built on a slope.
He also argued before the judge, that he did not encroach on the boundary.
However, the judge ruled against him to stop any construction work on his property and was directed to pay the costs of the application.
Furthermore, the judge ordered Mkhize to provide proof of the appointment of a qualified and registered engineer to his neighbours and the municipality.
Mkhize, who represented himself in court, filed a complaint to the judicial conduct committee where he raised several issues against Judge Nkosi. He also claimed that his key evidence and reports he submitted to support his arguments were ignored by the judge who ruled against him as a result.
Mkhize said he was frustrated by the judgment as he had undertaken other home renovations on his property and removed windows and roof in some parts, but he had now been ordered by the court to stop all construction work.
“I’m currently renovating my property, I have all my plans approved by the municipality, but I cannot continue. My application for leave to appeal was denied by the same judge, which left me with no other option but to approach the judicial service commission,” he said.
In his complaints, Mkhize said the judge did not run the hearing in a procedurally fair manner, alleging he was not given the same amount of time as his neighbour’s lawyer.
He also complained about the judge’s previous relationship with Shepstone and Wylie Attorneys, who represented his neighbours. Prior to his appointment as a judge in 2020, Nkosi was one of the partners of Shepstone and Wylie Attorneys.
“The case was brought as an urgent matter on October 21, 2020 before Judge Sharmaine Balton who postponed it to November 3 the same year. On November 3, I was notified by Shepstone Wylie Attorneys that the case was postponed for the following year, 2021.
“A year later, on October 7, 2021 the matter was heard at the Durban High Court, Judge Nkosi introduced himself and stated that he used to work for Shepstone and Wylie. I did not object to his presiding over the matter. When I requested a fair trial, Judge Nkosi told me that we must agree to disagree. This statement affected me, as I was persuading him to objectively adjudicate in a matter that involved his previous partners.
“By disagreeing with me gave a notion of him taking his previous partners' side,” he stated in his complaint.
Mkhize also alleged that Nkosi dismissed a condonation application unreasonably.
“Judge Nkosi denied condonation because he is suppressing evidence that shows his bias on the matter. I pray for justice to be served by proper discipline. Now I’m still prejudiced by Nkosi’s judgment, I cannot do anything as my house is wide open, wind, rain, just hit directly,” he said.
When approached for a response to the allegations, the judge said he was aware of the complaints and would follow the due process of the conduct committee.
“I have noted the complaints against my judgment. It is within his right to challenge it and I will follow all the internal processes,” he said.
The office of the chief justice also confirmed receipt of the complaints.
SUNDAY TRIBUNE