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[2017] ZAWCHC 116
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Isaacs and Others v City of Cape Town and Another (4375/2017) [2017] ZAWCHC 116; [2018] 1 All SA 135 (WCC) (22 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
[REPORTABLE]
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No. 4375/2017
In
the matter between:
JOHNNY
ANDREW ISAACS
First
Applicant
MAGDALENE
ELIZABETH WILLIAMS
Second
Applicant
JANÉ
WILLIAMS
Third
Applicant
JUANITA
WILLIAMS
Fourth
Applicant
JODENE
WILLIAMS
Fifth
Applicant
ELFRED
GEORGE
Sixth
Applicant
FRANK
WAGNER
Seventh
Applicant
and
THE
CITY OF CAPE TOWN
First
Respondent
THE
MINISTER OF RURAL DEVELOPMENT AND LAND REFORM
Second
Respondent
JUDGMENT
DELIVERED ON 22 SEPTEMBER 2017
MASUKU
AJ
INTRODUCTION
1.
This is an application in terms of Rule 42
of the Uniform Rules of Court alternatively the common law, for an
order that the eviction
and demolition orders granted by Weinkove AJ
dated on 22 March 2017 be rescinded. The orders are as follows:
“
1. The
First to Eighth Respondents and all those holding title under them
shall vacate the premises situated at the Blaauwberg Nature
Reserve
(“the reserve”) at Eerste Steen Resort, Otto Du Plessis
Drive, Cape Town, (“the property”) comprising
the erven
listed on “A” hereto, on or before 31 March 2017.
2. Failing the
aforesaid, the Sheriff of the Honourable Court is authorised and
directed, with the assistance of the South African
Police Service if
necessary, to evict the First to Fifth Respondents and all those
holding title under them from the Property within
2 (two) calendar
days of the aforesaid date;
3. The
Applicant is authorised to demolish the building structures on the
Property within 2 (two) calendar days, or so soon thereafter
as
Applicant is able to do so, after the First to Eighth Respondents and
all those holding title under them have vacated or been
evicted from
the Property (whichever is the case)”
2.
The applicants were the respondents in the
application for their eviction from the reserve brought on an urgent
basis by the City
in terms of the section 5 of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (“the
PIE
Act”). Faced with the terrifying reality of their eviction,
the applicants launched this application, also on an urgent basis,
to
suspend the execution of the eviction and demolition orders. The
relief sought in this application is in two parts. In terms
of Part
A, the applicants sought an order suspending the operation and
execution of the orders granted by Weinkove AJ pending the
finalisation of this application for the rescission of those orders
in terms of Part B. Goliath DJP granted an order by agreement
between the parties on 29 March 2017 suspending the execution of the
eviction and demolition orders. This is an application for
relief in
Part B of the Notice of Motion.
3.
At the hearing of this matter, Mr Papier
together with Ms Adriaanse appeared for the applicants and Ms Titus
appeared for the first
respondent, (hereinafter the “City”).
There was no appearance for the second respondent (“the
Department”).
That said, an affidavit by Nina Navarro
Brito, an acting director responsible for the land tenure branch at
the Department of Rural
Development and Land Reform was filed on
behalf of the Department. The significance of this affidavit will
become clear later in
this judgment, save to point out that the
allegations made therein demonstrate a profound difference of opinion
between the City
and the Department on the legislation that should be
relied on for the removal of the applicants. The difference of
opinion over
the applicable legislation for the removal of the
applicants arose from consultative meetings that took place between
the City
and the Department and as a consequence of the Department’s
strongly held view that the removal of the applicants was more
appropriately a matter to be dealt with in terms of the Extension of
Security of Tenure Act 62 of 1997 (“ESTA”). I
revert back to the significance of these consultative meetings.
4.
In my view, prior to the City pursuing the
eviction and demolition application as vigorously as it did, a
concerted effort should
have been made, within the parameters of the
principle of cooperative government between the City and the
Department, to resolve
the matter in favour of a removal process that
affirms the dignity of the applicants. This means that the City and
the Department
had an opportunity to address the removal of the
applicants in a manner consonant with the underlying values of the
Constitution.
That failed when the City launched, under PIE, an
application for the removal of the applicants on an urgent basis.
5.
This rescission application therefore
became necessary because the City, on an urgent basis in terms of
section 5 of PIE, had obtained
an eviction and demolition order in
the absence of the applicants and with it, could evict the applicants
and demolish their premises.
BACKGROUND
TO THE RESCISSION APPLICATION
6.
The applicants, on justified urgency and
fearing the prospect of their imminent removal from the property,
brought this application
in terms of Rule 42(1)(b) of the Uniform
Rules of Court, alternatively, the common law for an order rescinding
the eviction orders
granted by the court. Rule 42(1)(a) provides that
the Court may, ‘in addition to any other power it may have,
mero moto
or
upon application of any party affected, rescind or vary an order or
judgment erroneously sought or erroneously granted in the
absence of
any party affected thereby.’ The arguments before me centred on
whether the facts upon which the applicants rely
give rise to the
type of error envisaged in the rules, and if so, whether the order
was erroneously sought or erroneously granted
on the basis of the
error.
7.
The applicants contend that they are
occupiers in terms the Extension of Security of Tenure Act 62 of 1997
(“ESTA”)
and their removal is unlawful because it was
sought and granted in terms of PIE. In the alternative, and in the
event that PIE
is held to be applicable, the applicants contend that
the eviction and demolition orders were granted in error on the basis
that
the court, granting the eviction and demolition order, was not
appraised of the facts necessary for the court to determine whether
an eviction order is a just and equitable order.
THE
EVICTION APPLICATION UNDER PIE
8.
On
8 March 2017, the City launched eviction proceedings in terms of
section 5 of PIE for the eviction of the applicants from the
reserve
they occupied. Section 5 of PIE regulates the launching of eviction
proceedings on an urgent basis for a final order of
eviction. It
provides that such final order may be granted if the Court is
satisfied that (i) there is a real and imminent danger
of substantial
injury or damage to any person or property if the unlawful occupier
is not forthwith evicted from the land; (ii)
the likely hardship to
the owner or any other affected person if an order for eviction is
not granted, exceeds the likely hardship
to the unlawful occupier
against whom the order is sought, if an order for eviction is granted
and (iii) there is no other effective
remedy available. Even
where all these facts are established, the court remains with a
discretionary power to refuse an order
of eviction. Before granting
the urgent order of eviction, the court must give written and
effective notice of the intention of
the owner or person in charge to
obtain an order evicting an unlawful occupier and the municipality in
whose area of jurisdiction
the land is situated.
[1]
9.
Contemplating the urgent eviction and
demolition proceedings, the City approached the court on an
ex
parte
basis for the aforementioned
notice in terms of section 5(3) of PIE on Monday, 13 March 2017.
The notice complied with the
requirements in section 5(3) and the
grounds of urgency set out therein are the following:
9.1.
The applicants and all those holding title
under them are unlawful occupants of the Property;
9.2.
The building structures on the Property
have been declared unfit for human habitation and present a real and
imminent danger of
substantial injury and damage to them, as well as
other persons and adjacent property, should they not vacate the
Property urgently;
9.3.
The continued unlawful occupation of the
Property by them poses a significant risk to the staff, visitors and
wildlife at the reserve,
as well as to the internationally recognised
conservation and archaeological projects at the reserve. There
is accordingly
a further real and imminent danger of substantial
injury and damage;
10.
The prescribed notice and the application
for the urgent eviction of the applicants would be affixed to the
entrance to the Property
and at the ‘homestead’ on the
reserve, by the Sheriff of this Honourable Court, with the assistance
of the South African
Police Service if necessary at the Property on
or before 14 March 2017.
11.
Meer J granted the required service order
on 13 March 2017 in terms of section 5(3) of PIE. In terms of
that order, the applicants
would deliver to the City a notice to
oppose, if they so wished, on Monday, 20 March 2017 and thereafter
file an answering affidavit
on or before Monday, 3 April 2017.
The matter, if opposed, would be heard on Wednesday, 19 April 2017;
if unopposed, on 22
March 2017.
12.
The applicants did not file any notice to
oppose the application. They also failed to file any answering
affidavit to the
application. The application was accordingly
unopposed when it served before Weinkove AJ on 22 March 2017 who
granted the order
evicting the applicants and demolishing the house
occupied by them. In terms of that order, the applicants had seven
days to move
from the Property failing which the eviction order would
be implemented. Before the expiry of the seven days, on 30
March
2017, the applicants filed this application on an urgent basis
for an order suspending the operation of the eviction and demolition
pending an application to rescind the said orders.
APPLICATION
FOR RESCISSION
13.
The main deponent to the founding affidavit
filed in support of the application for the rescission of the
eviction and demolition
orders is John Andrew Isaacs, (“Mr
Isaacs”) a resident on the property for a long period of time -
according to him
– for a period of more than 30 years. The
founding affidavit is supported by the confirmatory affidavits of
only the second,
third and fourth applicants. The applicants contend
that they are “Afrikaans speaking indigent litigants’ who
have
resided on the property for more than 30 years. Their
knowledge of English is limited. Ms Brito on behalf of the
Department
confirms this language aspect and states in paragraph 5 of
her affidavit as follows:
“
I can
thus confirm that I attended the meeting of 1 February 2017, the
minutes of which is attached to the founding affidavit as
annexure
“J13”. The minutes of the meeting is in English,
but can confirm that the language that was spoken to
the Applicants
who were present at the meeting (First to the Fourth Applicants) was
Afrikaans as it was clear that their understanding
of English was
limited. In fact, I can confirm that the officials from the
City of Cape Town spoke English, and that I would
translate in
Afrikaans to the Applicants. Similarly, their (the City’s)
legal representative, Adv Zeynub Titus would explain
to them in
Afrikaans what has been discussed in English.”
14.
In paragraph 21 and 22 of the founding
affidavit, Mr Isaacs deals with the prejudice that the applicants
suffered as a result of
the service order and application being in
English only. He states that:
“
The
Meer order itself is in English and not in our mother-tongue,
Afrikaans. The Sheriff did not explain the contents of the order
to
us. We have been advised and verily believe that in terms of the
order, notice of opposition should have been filed on the 20
th
March 2017.
We have been
advised, further, and verily believe that the Meer order should have
been in the Afrikaans language that we understand
and directions
should have also been given as to the language of the Meer order in
terms of section 5(1) of PIE”
15.
Mr Isaacs concludes that on the grounds
that the Meer J order was delivered to them only in English and not
in Afrikaans, the execution
of the Weinkove AJ order should be
suspended and the Meer J order rescinded. The order in English
should have been accompanied
by Afrikaans translation.
16.
Once more, the requirements for a
rescission of an order must be present before such an order is
granted. With respect to
the Meer J order, the applicants must
show that it was granted in error. The applicants contend it
was. They say so
because the City failed to provide the court
with accurate information relating to the language of the applicants,
the result of
which the court failed to appreciate the necessity of
issuing an order directing that the notice of eviction proceedings in
terms
of section 5(3) of PIE be issued in Afrikaans. The notice was
therefore not effective as required in section 5(2) of PIE.
If
there was no compliance with section 5(2) of PIE in that the notice
sought and authorised by the court was issued in a language
that the
applicants are not conversant with, then it lacked the material facts
necessary for it to exercise its judicial powers
in terms of section
5(2) of PIE to issue an effective notice. It would follow that
the notice was sought on the basis of
incomplete or inaccurate
information in that when the City sought an order in terms of section
5(2) of PIE, it did not inform Meer
J that the occupiers were
Afrikaans speaking occupiers. Had the City done so, the court would,
no doubt, have issued an order directing
that the notice in English
be issued also in Afrikaans. In my view, the application for
rescission must succeed on this basis.
17.
A
failure to point out the language of the occupiers to the court
considering a section 5(2) notice is a fatal omission and strips
the
eviction process of the attributes of fairness and lawfulness.
Such an omission not only undermines the right of the
occupiers to
access the court as guaranteed in section 22 of the Constitution, but
has the real potential of violating the right
of the occupiers to
access housing in section 26 of the Constitution. When the City seeks
directions from the Court on how to serve
an eviction notice, it is
enjoined to inform the court about the language of the occupiers, so
that a court is placed in a position
to fashion an appropriate order
that is just and equitable having particular regard to the language
and cultural context relevant
to the applicants. A service order in
terms of section 5(2) of PIE is an indispensable requirement for a
fair and lawful eviction
process.
[2]
The notice is unfair and unlawful if it is not in a language of the
occupiers.
18.
Had Meer J been informed that the occupiers
for whom the notice was being sought, were largely Afrikaans
speaking, she would not
have ordered the notice to be issued only in
English. In my view, the Meer J order should be rescinded on the
basis that it was
obtained on incorrect information relating to the
language of the occupiers. It was granted erroneously because
it was on
the basis that the occupiers could read, speak and
understand the English language, when that was not the case.
19.
The consequence of the rescission of the
Meer J order is that the orders of eviction granted by Weinkove AJ
must fall by rescission.
A lawful and appropriate notice that
complies with the requirements of section 5(2) is a jurisdictional
requirement for a lawful
eviction. Since a section 5(2) notice that
does not comply with the language requirement for lawful eviction, it
follows that an
eviction order, on the basis of an error, cannot
stand.
20.
This is however not the only basis on which
the eviction and demolition orders should be rescinded.
According to the applicants,
a rescission order should also be
granted because the eviction and demolition orders were obtained by
the respondents relying upon
incorrect legislation. They contend that
they are ESTA occupiers and accordingly may only be removed from the
property in accordance
with the procedures set out in ESTA. In
granting the eviction orders on the basis of PIE against ESTA
occupants, it is competent
for this court to rescind the orders on
the basis that such orders were granted erroneously.
DID
THE APPLICANTS HAVE THE CONSENT OF THE OWNERS TO RESIDE ON THE
PROPERTY?
21.
The applicants contend that they are
indigent people who have lived on the property for most of their
lives and they do so with
the consent of previous owners. The
first and second applicants have lived on the Property for more than
30 years and they
consider the property to be their permanent place
of residence. On the issue of consent, the applicants contend that
they moved
on the farm in the early 1980s when the farm was still
owned by a Mr Andries Van der Spuy. In the early 1990s Garden
Cities
bought the Property from Van der Spuy and gave the first and
second applicants consent to live on the Property. That consent was
specifically given to them by someone they recall his name as being
“Gary”, who was allegedly the farm manager at the
time.
These facts had been conveyed to the City during its meetings with
the Department and the applicants prior to the eviction
application,
and yet did not find their way into the founding affidavit filed on
behalf of the City.
22.
There was some debate about how the
Department became involved in these consultations with City and the
occupiers for an amicable
solution to the occupation of the property.
That debate, in my view, is immaterial - for whoever attracted the
Department’s
involvement in this matter showed commendable
foresight and wisdom. It is regrettable that the consultations were
brought to an
unhappy halt with the City resorting to an urgent
application for the eviction of the applicants in terms of PIE.
Consultations
between the relevant officials of the Department and
the City to reach an amicable solution that affirms, on the one hand,
the
constitutional rights of vulnerable occupiers on agricultural
land, and, on the other, enables the state to pursue its
environmental
and land policies in accordance with constitutional
obligations imposed on them, should be encouraged. Organs of
state should
ensure that the eviction of vulnerable and indigent
people from land is done with an abiding reverence to the
constitutional values
of human dignity, equality and freedom.
This means that before an eviction application is pursued by an organ
of state, there
should be consultations, to the extent possible,
between the relevant organs of state for an amicable solution. The
consultations
must be carried out in good faith to avoid any
adversarial system of evicting vulnerable people from land or
property. This is
not an onerous interposition of a procedural
requirement. It is a procedural necessity. If parties commit to
a consultation
process, in good faith, it widens the prospect of
parties reaching an amicable solution to a difficult issue.
23.
In this case, as far as the Department is
concerned, the eviction process was resorted to with haste and
impatience by the City
without due regard to the assistance offered
by it to ensure that the removal of the applicants was lawfully
done. In paragraph
4 of Ms Brito’s affidavit filed on
behalf of the Department reveals that the route of meaningfully
consulting the applicants
to find a mutually agreeable solution
involving their removal from the property had not reached a point
where an urgent application
for their eviction was justified.
She states:
“
The
Department’s interest in matters such as the present are to
ensure that the rights of vulnerable occupiers such as the
Applicants
are protected, inasmuch as the ESTA Act provides for the protection
of ESTA occupiers. My colleague, Themba Maluleke
and I then
engaged with the current owner of the farm (the City of Cape Town) in
order to secure the rights of the occupiers, in
particular their
security of tenure which is guaranteed by ESTA.
24.
In paragraph 6 of Ms Brito’s
affidavit, she expresses her surprise that the eviction of the
applicants had been brought in
terms of the provisions of PIE and not
the ESTA. In a very strong tone, she says on behalf of the
Department that “
I am quite
surprised that the City of Cape Town brought the eviction application
in terms of the Prevention of Illegal Eviction
from and Occupation of
Land Act 19 of 1998 (“PIE”) as I made it clear to them at
the meeting that such an application
would be illegal, and in this
regards I quote from the minutes hereunder:
“
NB
commented that the legislation requires that the residents be
provided with better accommodation than they have at present.
She advised that there are currently 8 family members staying on this
property, some for more than 30 years and that two of the
children of
JAI were born on the property. She further indicated that if a person
is resident for more than 10 years on the property,
you become a
tenant. She advised that the Department informed the residents not to
move as it infringes on their rights of tenure.
NB also
indicated that the Departments wants to visit the site of the
homestead and to apply for legal support for the residents
if they
refuse to move to the Wolverivier units as they will regard the
eviction to be brought by the City as an illegal eviction.
NB
reiterated that the family has been on the land for over 30 years and
that they will prove this. NB advised that she wants
to find a
solution and by doing so the Department will consider the following
factors:
-
Is the City moving the residents to
better socio-economic conditions;
-
The proximity of schools;
-
The use of wood as a socio-economic
benefit for the residents;
-
The fact that the wild animals have been
placed with no protection or fence;
-
That the parties could have engaged
prior to the introduction of the wild animals.
NB advised
that the Department will compile a more extensive report on the
family and will legally support the family if the litigation
proceeds.”
25.
It appears that the eviction proceedings
were proceeded with before the Department could provide its extensive
report on the occupiers,
or obtain answers to the important questions
set out in the minute. The main basis for the rescission
application is that
the eviction order was granted erroneously in
that it was granted on the basis that PIE was applicable when in fact
ESTA was the
relevant statute in terms of which the applicants could
lawfully be removed from the property. If indeed ESTA is the
appropriate
legislation, the question is whether this is the kind of
error that justifies a rescission order. In other words, if the City
was
wrong to rely on PIE for the eviction of the occupiers, is it
competent for this court to rescind the eviction on that basis? In
my
view, it is competent for this court to rescind an order erroneously
granted.
26.
Whether or not an order of court granted in
terms of incorrect legislation may be rescinded on the basis that the
order was erroneously
granted depends on whether the court granting
that order did so on the basis of inaccurate or incomplete facts.
Had the court
known the true facts relating to the nature of the
occupied land and the occupiers’ claim to occupation of the
land; the
Department’s strongly held view that ESTA was
applicable; it would have considered whether the matter had correctly
been
brought under the provisions of PIE.
27.
In the eviction application brought by the
City for the eviction of the occupiers, there is no reference made to
the attitude of
the Department regarding the application of ESTA to
the matter. The City avoided setting the content of its
consultations
with the Department and the occupiers, with the
consequence that the Court was deprived of the opportunity to explore
whether the
application for the eviction of the applicants had been
brought in terms of the correct legislation. The minutes of the
consultative
meeting with the Department would have given the court a
view into the various arguments of the parties on the appropriate
legislation
for the eviction of the applicants. Had the minutes of
the consultative meeting with the Department been attached to the
eviction
application, the court would have been placed in a position
to assess the facts within the context of the appropriate legislation
to conclude whether the PIE was appropriate. In the application
for the eviction of the applicants, the City did not pertinently
point out four critical factors that could have alerted the court to
determine whether PIE or ESTA is the applicable legislation.
28.
The first is that the occupied land is
agricultural land. This is a material fact that should have
been disclosed to the court,
for ESTA applies to agricultural land.
The second material fact is that during consultations with the
Department and the
occupiers, the City knew that the occupiers
contended that they had the consent of previous owners to occupy and
live on the agricultural
land. Thirdly, the minutes of deliberations
and consultations between the City, the Department and the occupiers
should have been
disclosed to the court so that it could appreciate
the nature of engagements undertaken prior to the court application.
The
fourth material fact is that the City failed to disclose
the Department’s view that ESTA was the applicable legislation
and
not PIE. The failure of the City to give the court all the
relevant information relating to the land, the language of the
occupiers
and the claim to occupation of the land, the nature of the
consultations that the City had undertaken with the Department
resulted
in the court granting the eviction and demolition order in
terms of PIE.
29.
On the facts disclosed by the applicants in
this application, together with the firm view of the Department, it
is necessary for
this court to now determine whether or not ESTA is
the appropriate legislation and if indeed it is, whether it is
competent for
this court to order a rescission of the order on that
basis. I must, in doing so, studiously avoid acting as an appeal
court disguised
as a rescission court.
IS
ESTA THE APPROPRIATE LEGISLATION FOR THE REMOVAL OF THE OCCUPIERS?
30.
Since the property occupied by applicants
is agricultural land, and since the applicants allege that their
incomes do not exceed
the prescribed amount of R5000.00 per month,
the applicability of ESTA, and thus this court’s jurisdiction,
turned primarily
on whether the applicants had the consent of the
owners at the relevant time to reside on the land. The
applicants contended
that they had stated they had the consent of the
previous owners. They also stated that their respective income
did not exceed
the prescribed amount of R5000.00. The City did
not seriously controvert this evidence in my view. In essence, the
City’s
main claim was that the applicants had failed to meet
the requirements for a rescission order - whether in terms of Rule 42
or
the common law. In this regard, the City argued that the
applicants had failed to show that, on the facts and evidence
presented
before Weinkove AJ, the order for their eviction had been
erroneously granted under PIE. As far as the City was
concerned,
Weinkove AJ had everything that was necessary and relevant
to grant an order of eviction and demolition.
31.
However, the City’s approach
misconstrues the primary basis on which this rescission application
rested. There is no doubt
in my view that the City may well have
satisfied the requirement of PIE if that were the applicable
legislation. The issue is however
not whether the court erred in
granting the eviction and demolition order under PIE. The issue is a
different one. It is
whether the court erred, when it granted
an order of eviction under PIE, in respect of a matter falling within
ESTA. The issue
of the applicability of ESTA, in particular, whether
the applicants had established the consent of the owners was the main
issue
for argument.
32.
The
constitutional importance of ESTA is now well expressed in our law
and therefore trite.
[3]
An eviction – no matter how justified – must be obtained
lawfully and not arbitrarily. An ESTA occupier
therefore cannot
lawfully be evicted in terms of PIE. While both pieces of
legislation have their objective to regulate the
manner of evicting
unlawful occupiers, each has special mandatory features that must be
complied with. ESTA provides statutory
protection against eviction of
occupiers of agricultural land.
[4]
An occupier as defined in section 1 of ESTA is a “person
residing on land that belongs to another person, and who has or
on 4
February 1997 or thereafter had consent or another right in law to do
so…” Consent is defined as express
or tacit
consent of the owner or person in charge of the land in question. In
terms of section 3(1) of ESTA consent to an occupier
to reside on or
use land shall only be terminated in accordance with the provisions
of section 8. That section refers to
the termination of an
occupier’s ‘right of residence’ on the land in
question. Plainly that is the right to occupy
that arises from the
express or tacit consent of the owner of the land. In most cases,
consent will arise from some agreement between
the owner and
occupiers, but an agreement, in a contractual sense is not a
requirement. The SCA
[5]
clarified the position in the following terms:
“
The Act
(meaning ESTA) does not describe an occupier as a person occupying
land in terms of an agreement or contract, but as a person
occupying
with the consent of the owner. One can readily imagine
circumstances in which the rural areas of South Africa people
may
come to reside on the land of another and the owner, for one or other
reason, takes no steps to prevent them from doing so
or to evict
them. That situation will ordinarily mean that they are
occupying with the tacit consent of the owner and will
be occupiers
for the purpose of the Act.
33.
The SCA discarded a restrictive approach to
determining the issue of consent and conclude that whatever “
its
origins it is the right of residence flowing from the consent that
must be terminated in terms of section 8 before an eviction
order can
be obtained.”
In the present
case, the applicants’ consent was not terminated in terms of
section 8 of ESTA because the City utilised PIE
as a source of
authority for the eviction of the applicants from the land. If
ESTA is applicable, it follows that the eviction
under PIE was
unlawful since the City could not comply under PIE with the
requirements of section 8 of ESTA. The termination
of a right
of residence must be lawful and just and equitable having regard to
the specific facts of the case.
34.
The land from which the applicants were
evicted in terms of PIE is agricultural land. It is referred by the
City as a farm situated
in a nature reserve area. At the
hearing of this application, Ms Titus for the City confirmed, under
instructions from City
officials, that the property is agricultural
land. Section 2 of ESTA provides the following:
“
Subject
to the provisions of section 4, this Act shall apply to all land
other than land in a township established, approved, proclaimed
or
otherwise recognised as such in terms of any law, or encircled by
such a township or townships, but including-
(a)
any land within such a township which had
been designated for agricultural purposes in terms of any law; and
(b)
any land within such a township which
has been established, approved, proclaimed or otherwise recognised
after 4 January 1997, in
respect only of a person who was an occupier
immediately prior to such establishment, approval, proclamation or
recognition.
35.
The City does not submit that the land
falls within an established township or is encircled by a township or
townships. What the
City appears to submit though is that an occupier
on agricultural land may be evicted by reliance on PIE since PIE
applies to all
land. The City further contends that in order to
fall within the definition of occupier under ESTA, the person must
have
the consent or another right in law to occupy the property.
In other words, the fact that the land concerned is agricultural
land
is not decisive for the application of ESTA according to the City.
What is decisive is that the occupier must occupy the land
with the
consent of the owner. Absent that consent, so the argument goes, an
occupier on agricultural land may be evicted, as an
unlawful
occupier, by reliance on PIE.
THE
CONSENT TO OCCUPY THE PROPERTY
36.
According to the rescission application,
the applicants claim to have been in occupation of this agricultural
land for a period
of over 30 years, having occupied the land since
1987. Mr Isaacs specifically claims that, “the previous
owner of the
Farm knew about our presence here. There can be no
dispute about that. My wife and I moved into the farm in the early
1980’s
when the farm was still owned by Mr Andries Van der
Spuy. In the early 1990’s when Garden Cities acquired
ownership
of the Farm, consent in respect of our occupation was
confirmed during 1994 by Gary who was at that stage in charge of the
Farm.
This fact was communicated to the First Respondent’s
legal team in a meeting in a meeting on 1 February 2017.”
37.
The Department appears to confirm the
applicants’ claim of consent in the affidavit of Brito where
she states that:
“
3. I
have been involved in the matter of the Applicants since January
2017. The Department of Rural Development and Land Reform
(“the
Department”) got involved in this matter as we believed that
the Applicants are occupiers in terms of the Extension
of Security of
Tenure Act 62 of 1997 (“ESTA”). In this regard, it should
be noted that they are in occupation of land
that is designated for
agricultural purposes for more than 30 years. They do not earn
more than R5000 per month and they
do appear to have had the consent
from the previous owners to reside on the land.”
38.
In paragraph 4, Brito continues to state
that:
“
The
Department’s interest in matter such as the present are to
ensure that the rights of vulnerable occupiers such as the
Applicants
are protected, inasmuch as the ESTA Act provides for the protection
of ESTA occupiers…”
39.
The courts have established that it
suffices that persons claiming the protection of ESTA show that the
owner of the land has consented
to their being in occupation,
irrespective of whether that occupation flows from any agreement or
has its source elsewhere.
The Supreme Court of Appeal has held
that whatever its origins it is the right of residence flowing from
that consent that must
be terminated in terms of section 8 before an
eviction order can be obtained.
40.
Without setting out the precise terms of
the consent claimed, the City dealt with the issue of consent.
In a supporting affidavit
of Francois Renier Smith (“Mr Smith”)
consent is dealt with in the following manner:
“
4. The
‘homestead’ on which the First Respondent and his family
reside is situated on Portion 10
5. I have been
in the employ of Garden Cities for approximately 21 years. I
cannot recall that either Garden Cities, or myself
personally, had at
any stage prior to the transfer given consent to the First Respondent
or any other person to reside on the homestead
or to conduct any
economic activity on the property, including cutting trees/wood and
selling same. The legal representatives for
the City of Cape Town
have informed me that the First Respondent has said that his surname
is “Isaacs” and not “Williams”.
After
diligent search, I could not find that Garden Cities has any record
of any formal documentation of the First Respondent,
so we cannot
comment on the issue of his surname. All the information herein
relates to the First Respondent whether he identifies
himself by the
surname “Isaacs” or “Williams”.
6. I must
mention that until approximately 2004, Garden Cities had granted
permission in writing to small bush cutting operations,
typically
families, to cut wood on various vacant erven owned by Garden Cities,
including Portion 10. I cannot recall that
such written
permission was at any stage given to the First Respondent or any
other occupant on the homestead.
41.
The affidavit of Mr Smith, in my view, is
not evidence that the occupiers did not have the consent to reside on
the property.
He cannot recall any formal consent being given
but does not unequivocally state they the occupiers were not given
any consent.
In conclusion, Mr Smith states;
“
10.
At the time that we entered into negotiations with the City to
acquire Portion 10, we informed the City of the unlawful
occupation
of the First Respondent and his family at the homestead. The
City acknowledged that the residents were in occupation
of the
homestead and took the position that it would continue our attempts
to get the occupants to vacate the property amicably
and take the
necessary steps to deal with the matter.”
42.
In this application, the City further deals
with the issue of consent by relying on the affidavit of Ms Sarah Van
der Spuy, (“Ms
Van der Spuy”) the daughter of Mr Andries
Christoffel van der Spuy. The evidence of Ms Van der Spuy deals with
the applicants’
claim that they obtained the consent of Ms Van
der Spuy’s father. Her evidence is that the family sold
their farm in
1965. They vacated the farm. According to the
City, the affidavit of Ms Van der Spuy is evidence that the
applicants’
version that consent was obtained from Mr Andries
Christoffel Van de Spuy should not be believed. The affidavit
of Ms Van
der Spuy was not present when the eviction order was sought
and obtained by the City against the City. It has been filed in this
application to oppose a rescission application.
43.
In my view, the evidence relied on by the
City to rebut the allegations of consent to occupy the land fails to
meet the required
standard of proof determinative of that issue. The
applicants state that they obtained the consent of someone called
“Gary”
who they recall to have been an employee of the
Garden Cities with the authority to grant such consent. The City
further relies
on the affidavit deposed to by John Mathews, the CEO
of Garden Cities, and the successor-in-title to Mr Van der Spuy.
What
is significant about the affidavit of Mr Mathews is the
following:
“
3. I
confirm that from the employee records, no individuals by the name of
“Gary” has been employed by Garden Cities
in a position
of authority or to make decisions on behalf of Garden Cities over any
property owned by Garden Cities during 1990
or anytime thereafter.
Nor has any individual by the name of “Gary” had control
over any property owned by Garden Cities
during 1990 or anytime
thereafter.
4. I must
mention that prior to the sale of the property in question to the
City of Cape Town, Garden Cities had on several occasions
engaged
with the occupants, in particular “Johnny” as we know
him, that is Mr Isaacs the First Respondent. Garden Cities
made every
attempt to persuade him and his family to vacate the property which
they persistently refused to do. Garden Cities
did not take
legal steps to evict the occupants from the property only because it
had not decided to develop the land yet.”
44.
In my view, the issue of consent is a
matter for the trial court to determine should the matter be
proceeded with in terms of ESTA.
There is a genuine dispute of
fact as to whether the applicants occupied the land with the consent
of the landowners that cannot
be resolved on the papers as they
stand. What is clear in my view is that there is at least a
prima facie case of consent
to occupy the land having been given to
the applicants. Accordingly, the court faced with an application for
eviction under ESTA
would be in a position to make the right
determination taking into account the evidence in totality including
oral evidence that
I believe is necessary to determine the question
of consent. As stated above, prima facie, there was consent given to
the applicants
to occupy the land taking into account the period of
occupation, and the attitude of Garden Cities when it became the
landowner
and the City’s awareness of the applicants’
occupation at the time of acquiring the land.
45.
The City does not – as the new owner
– claim to have withdrawn or taken steps to withdraw any
consent allegedly given
by the previous owners. It is entitled
to do so as the owner of the land under ESTA. In other words,
it is open to
the City to terminate the consent allegedly granted
prior to it being the owner of the land. In my view, ESTA is the
applicable
legislation on the basis that it is the legislation that
was specifically designed to regulate the removal or plight of
tenants
on agricultural or rural land. The requirement of consent is
relevant and important when the owner of that land seeks to evict the
occupier of that land.
46.
The principle of consent in ESTA is wide
enough to include the consent alleged by the applicants in this case,
for example even
if that consent was orally given. Section 3(3) of
ESTA provides the following:
“
For
purposes of this Act, consent to a person to reside on land shall be
effective regardless of whether the occupier, owner or
person in
charge has to obtain some other official authority required by law
for such residence.”
47.
For purposes of ESTA it is irrelevant that
there is no official authority required by law to claim consent to
reside on land.
Section 3(4) of ESTA provides that:
“
For the
purpose of civil proceedings in terms of this Act, a person who has
continuously and openly resided on land for a period
of one year
shall be presumed to have consent unless the contrary is proved.”
48.
It is not disputable that the applicants
have been resident on the land for more than one year continuously
and openly. They
say so and there is nothing in the papers of
the City to controvert their assertion.
49.
Section 3(5) of ESTA provides that:
“
For the
purposes of civil proceedings in terms of this Act, a person who has
continuously and openly resided on land for a period
of three years
shall be deemed to have done so with the knowledge of the owner or
person in charge.”
50.
The evidence is that the applicants have
continuously and openly resided on the land for a period of three
years even if one were
to discard the applicants’ claim to have
occupied the property from the 1980’s. The presumption that the
occupation
was with the knowledge of the owner or person in charge
kicks in.
51.
Section 3(4) and 3(5) of ESTA is however
not applicable to any land held by or registered in the name of the
State or an institution
or functionary exercising powers on behalf of
the State. There was no evidence that the land is registered in the
name of the City
and accordingly exempted from the application of
ESTA. In any event, the consent alleged arose during the time
when the land
belonged to either Van de Spuy or Garden City. It
would be a subversion of the provisions of ESTA if consent to occupy
land
obtained during a time when registration of the property was in
the name of a private party could be lost as soon as that land is
registered in the name of an organ of state. The consent asserted
therefore is not from the City but previous owners, none of who
fall
within section 3(6) of ESTA.
52.
In my view, the City was incorrect to
approach the eviction of occupiers of this agricultural land on the
basis of PIE. The
City should have heeded the advice of the
Department and sought the eviction of the occupiers under the
provisions of ESTA.
THE
POWER OF THE COURT TO ORDER RESCISSION OF EVICTION AND DEMOLITION
ORDER
53.
The
eviction of occupiers on agricultural land should be pursued in terms
of ESTA particularly having regards to the purpose of
that
legislation.
[6]
In my view, had the matter been presented to the court under ESTA,
the court considering that application would have been able
to
resolve the issue of whether ESTA was applicable. The court
would have been able to resolve the dispute involving whether
the
applicants had the consent of previous owners to reside on the
property. Evicting ESTA occupiers in terms of PIE deprives the
occupants of numerous procedural advantages that are attached to the
eviction process under ESTA. Moreover, evicting the
applicants
from agricultural land by default, makes it impossible for the court
to make a just and equitable order in that it cannot
perform its
special duties as set out in numerous cases of the Constitutional
Court, more particularly the recent judgment of Mojapelo
AJ.
54.
A careful analysis of the ESTA provisions
on the eviction process has been done by a number of courts. Having
regards to ESTA, the
process of eviction would be as follows;
‘
If the
respondents are occupiers as defined in ESTA, their eviction would
depend on the following:
(i)
Was their right of residence lawfully
terminated (s 8(1))?
(ii)
Was such termination just and equitable,
having regard to the factors listed in s8(1) of ESTA, namely the
fairness of any agreement
or legal provision on which the applicant
relies, the conduct of the parties giving rise to the termination,
the interests of the
parties, including comparative hardship, the
existence of reasonable expectation of renewal, and the fairness of
the procedure
followed by the owner?
(iii)
If so, has there been compliance with the
procedural prerequisites for eviction contained in s9(2)(d)?
(iv)
If so, is eviction just and equitable,
having regard to the factors listed in s 11(3), namely the period of
occupation, the fairness
of the terms of any agreement, whether
suitable alternative accommodation is available, the reason for the
eviction, and the balance
of the interests of the applicant and the
respondents?
(v)
If eviction is just and equitable, what is
the just and equitable date by which the respondents must vacate,
having regard to the
factors listed in s 12(2), namely the fairness
of the terms of any agreement between the parties, the balance of the
interests
of the applicant and the respondent, and the period of
occupation?
If ESTA does
not apply, the issue arising under PIE would be the following
(i)
Would the granting of an eviction order be
just and equitable as contemplated in s 4(7), having regard to all
relevant circumstances,
including whether other land has been or can
reasonably be made available by the City or other organ of state or
land owner and
including the rights and needs of the elderly,
children, disabled persons and household headed by women?
(ii)
If so, what is the just and equitable date
by the which the respondents must vacate (s4(8)), having regard to
all relevant factors,
including the period of occupation (s4(9).’
55.
Whether
or not an eviction order may be rescinded has been answered
positively. In a recent unanimous Constitutional Court decision
of
Mojapelo AJ, with impressive clarity has given guidance on the power
of courts to order a rescission of eviction applications
erroneously
sought and granted. The Constitutional Court addressed the
question “
whether
an eviction order may be rescinded at the instance of occupiers who
had purportedly consented to it
.”
[7]
In that case, an order by agreement had been granted for the eviction
of applicants who had not been in court when the said
order was
granted. An application for leave to appeal that decision was
dismissed and so was the application for the rescission
of the
eviction order. Of relevance to this Court is what the Constitutional
Court held about the scope of the power of the court
to grant an
order rescinding the eviction order granted in the absence (“albeit
with purported consent”) of the applicants.
56.
Mojapelo AJ dealt with the duties of the
Court in eviction proceedings. The Court held that:
[39] …The
duties arise from the protection of the rights of residents. They
are, in the circumstances, inextricably intertwined
with the issue of
informed consent and waiver which entails an examination into what
rights the parties had and the nature of those
rights.
[40] The
starting point is section 26(3) of the Constitution which provides
that “[n]o one may be evicted from their home,
or have their
home demolished, without an order of court made after considering all
the relevant circumstances”. Accordingly,
courts seized with
eviction matters are enjoined by the Constitution to consider all
relevant circumstances.
[41] The
prohibition in section 26(3) is given effect to through the enactment
of PIE. This Act goes further and enjoins the courts
to order an
eviction only “if it is of the opinion that it is just and
equitable to do so, after considering all the relevant
circumstances”
as contemplated in section 4(6) and (7) and section 6(1).”
57.
Quoting
from Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217
(CC)
[8]
,
Mojapelo AJ reiterated that the court must take an active role in
adjudicating such matters. In paragraph 48 the Court concluded
as follows:
“
The
court will grant an eviction order only where: (a) it has all the
information about the occupiers to enable it to decide whether
the
eviction is just and equitable; and (b) the court is satisfied that
the eviction is just an equitable having regard to the
information in
(a). The two requirements are inextricable, interlinked and
essential. An eviction order granted in
the absence of either
one of these two requirements will be arbitrary.
58.
Where
the occupiers, as these, are not legally represented at the time of
the order being considered, the Supreme Court of Appeal
in Changing
Tides
[9]
provided additional guidance:
“
Where
[unlawful occupiers] are not represented, courts may consider issuing
a rule nisi and causing it to be served on the occupiers
(and if it
is not present, the local authority), together with a suitably worded
notice explaining the right to temporary emergency
accommodation, how
they can access such accommodation, and inviting them to come to
court to express their views on that issue
at least.”
59.
In overturning the order of the High
Court refusing rescission, Mojapelo AJ in the Constitutional Court
held the following:
[57]
Furthermore, Adams AJ accepted that the Court that had granted the
eviction order did not conduct an enquiry as enjoined by
the
Constitution and PIE. That should have been the end of the
inquiry and a sufficient factor to justify rescission.
60.
The Constitutional Court found that a
finding by the court that an eviction order had been granted without
the court conducting
an enquiry as enjoined by the Constitution and
PIE justified a rescission, essentially means that this Court for
similar reasons
may do so.
61.
In more detail, the Constitutional Court
committed a significant part of the judgment to determining whether
the eviction order
could or should be rescinded. It is worth quoting
from the judgment:
[70] Rule 42
therefore provides an adequate basis to set aside the eviction order,
in so far as it relates to the 180 absent applicants.
[71] As for
the appearer applicants, who were not absent for the purposes of rule
42, iustus error (just mistake) is a ground at
common law in terms of
which they may seek rescission of the order. The discretion of the
Court in granting rescission at common
law is fairly wide.
[72] In
Gollach & Gomperts, the Court stated:
“
It
appears to me that a transactio is most closely equivalent to a
consent judgment. . . . Such a judgment could be successfully
attacked on the very grounds which would justify rescission of the
agreement to consent to judgment. I am not aware of any reason
why
iustus error should not be a good ground for setting aside such a
consent judgment, and therefore also an agreement of compromise,
provided that such error vitiated true consent and did not merely
relate to motive or to the merits of a dispute which it was the
very
purpose of the parties to compromise.”
[73] Although
the appearer applicants factually signified consent to the eviction
order, their consent was not informed. It was
thus not valid. The
basis of granting the order against them was that they had validly
consented thereto. In the absence of valid
consent, there was no
procedural entitlement to the eviction order. The eviction order was
thus granted against them in error.
The appearer applicants’
lack of knowledge of their rights vitiated true consent.
[74] Once
iustus error is established a judgment by consent may be set aside.
It will be established where there is “good
and sufficient
cause”, which entails the consideration of (a) the
reasonableness of the explanation proffered by the applicant
of the
circumstances in which the consent was entered; (b) the bona fides of
the application; and (c) the bona fides of the defence
on the merits
of the case which prima facie carries some prospect of success.
[75] The
respondents contended that the applicants failed to establish
“sufficient cause” for rescission of the consent
order at
common law; and as a result, the High Court’s finding to this
extent is correct. Was there “good and sufficient
cause”?
Firstly, regarding the reasonableness of the explanation proffered by
the applicants, the circumstances under which
the consent order was
granted have been discussed in detail above. The crux is that the
applicants were unrepresented and uninformed
when they consented to
the eviction order. In the circumstances, their explanation is
reasonable.
[76] ….
[77] On the
facts, there is therefore a good case for rescission based on iustus
error. There is therefore a basis for granting
rescission of the
eviction order in respect of the appearer applicants at common law.
[78]
Accordingly, on the basis of rule 42(1)(a) and the common law, the
eviction order made purportedly by agreement between the
parties
falls to be rescinded.
62.
It
is clear from the judgment of Mojapelo AJ in the Constitutional Court
that an eviction order may be rescinded where it is granted
in
error. It follows that this court may rescind the order of
Weinkove AJ on the basis that it applied incorrect legislation
by
error. The SCA has also found that an order by default is by
its nature not final in its effect because it is capable
of being
revisited.
[10]
63.
Had Meer J or Weinkove AJ known the facts
and the evidence now set out in this rescission application, they
would have addressed
the issues accordingly and may well have taken
the view that ESTA is the applicable legislation and refused to grant
an eviction
on the basis of PIE. The City simply did not set
out the facts which could have enabled the court to determine the
appropriate
legislation for the eviction of the applicants. The facts
and evidence in this rescission application are different to those
presented
in support of the eviction of the applicants. On the
totality of facts in this application, it is clear that the City
erroneously
sought the eviction of the applicants in terms of PIE
when ESTA was the applicable legislation.
64.
Moreover,
the SCA has held that where “
notice
of proceedings to a party is required and judgement is granted
against such party in his absence without notice of the proceedings
having been given to him such judgment is granted erroneously That is
so not only if the absence of proper notice appears from
the record
of the proceedings as it exists when judgment is granted but also if,
contrary to what appears from such record, proper
notice of the
proceedings has in fact not been given. That would be the case
if the Sheriff’s return of service wrongly
indicates that the
relevant document has been served as required by the Rules whereas
there has for some or other reason not been
service of the document.
In such a case, the party in whose favour then judgment is given is
not entitled to judgment because
of an error in the
proceedings.
”
[11]
The Meer J order suffers from the defects identified by the SCA. The
issuance of a notice of eviction proceedings as required
by PIE or
indeed ESTA, that does not comply with the language requirements of
the respondents is no notice at all, for it cannot
convey to the
respondents the requirements of the notice. It is for this
reason that the order granting the notice of eviction
proceedings
against the applicants should be rescinded. Had the City
indicated that the applicants are Afrikaans speaking
and that their
English was inconsequential, Meer J would have issued an appropriate
order incorporating the language requirements
of Afrikaans speaking
occupiers. That was not done because Meer J was not presented
with those facts.
65.
As
held by the SCA, a court which grants judgment by default does not
grant the judgment on the basis that the defendant does not
have a
defence: “
it
grants the judgment on the basis that the defendant has been notified
of the plaintiff’s claim as required by the Rules,
that the
defendant, not having given notice of an intention to defend, is not
defending the matter and the plaintiff is in terms
of the Rules
entitled to the order sought. The existence or non-existence of a
defence to the merits is an irrelevant consideration
and, if
subsequently disclosed, cannot transform a validly obtained judgment
into an erroneous judgment.
”
[12]
66.
Applying the position above to the present
case, the application for the rescission of the orders of eviction
and demolition must
succeed.
67.
In the result, I make the following orders.
1.
The order granted on 13 March 2017 by Meer
J is hereby rescinded;
2.
The order granted on 22 March 2017 by
Weinkove AJ is hereby rescinded; and
3.
The City is ordered to pay the costs of the
application including the costs of two counsel.
Applicants’
Attorneys:
Rahman Inc c/o Robert
Charles Attorneys
Applicants’
Counsel:
Gregory Papier and
Keturah Adriaanse
Respondents’
Attorneys:
Adriaans Attorneys
First
Respondent’s Counsel
:
Zeynab Titus
Day/s
in court:
22 September 2017
Coram:
The Hon Mr Acting Justice T
Masuku
[1]
Section
5(3) of PIE provides that a notice of proceedings contemplated in
subsection (2) must
(a)
State that proceedings will be instituted
in terms of subsection (1) for an order for the eviction of the
unlawful occupier;
(b)
Indicate on what date and at what time the
court will hear the proceedings;
(c)
Set out the grounds on for the proposed
eviction; and
(d)
State that the unlawful occupier is
entitled to appear before the court and defend the case and, where
necessary, has the right
to apply for legal aid.
[2]
Cape
Killarney Property Investments (Pty) Ltd v Mahamba and Others
2000
(2) SA 67
(C) at 16
[3]
Molusi
and Others v Voges NO and OTHERS
2016 (3) SA 370
(CC) at para 1
[4]
Sterklewies
(Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others
2012 (5)
SA 392
(SCA) ([2012] ZASCA 77
[5]
Sterklewies
(Pty) Ltd; ibid para 3
[6]
Molusi
and Others v Voges NO and OTHERS
2016 (3) SA 370
(CC) para 7 “…The
legislation was enacted, amongst other things, to improve the
conditions of occupiers of premises
on farmland and to afford them
substantive protections that the common-law remedies may not
afford.”
[7]
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16)
[2017] ZACC 18
(8 June 2017)
[8]
at
para 36: “The court is thus called upon to go beyond its
normal functions and to engage in active judicial management
according to equitable principles of an ongoing, stressful and
law-governed social process. This has four major implications
for the manner in which it must deal with the issues before it, how
it should approach questions of evidence, the procedures
it may
adopt, the way in which it exercises its powers and the orders it
might make. The Constitution and PIE require that,
in addition
to considering the lawfulness of the occupation the court must have
regard to the interests and circumstances of
the occupier and pay
due regard to broader considerations of fairness and other
constitutional values, so as to produce a just
and equitable result.
[9]
City
of Johannesburg v Changing Tides 74
2012 (6) SA 294
(SCA) at para 48
[10]
Pitelli
v Everton Gardens Projects
2010 (5) SA 171
at 31F
[11]
Lodhi
2 Properties Investments CC and Another v Bondev Developments Pty
Ltd
2007 (6) SA 87
(SCA) at para 24
[12]
ibid.
para 27