Lusithi and Others v Cape Lifestyle Investment Ltd and Another (A511/15) [2017] ZAWCHC 117; [2018] 1 All SA 166 (WCC); 2018 (6) BCLR 727 (WCC) (13 October 2017)

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[2017] ZAWCHC 117
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Lusithi and Others v Cape Lifestyle Investment Ltd and Another (A511/15) [2017] ZAWCHC 117; [2018] 1 All SA 166 (WCC); 2018 (6) BCLR 727 (WCC) (13 October 2017)

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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
APPEAL
CASE NO: A511/15
WCHC
CASE NO: 9201/2014
In
the matter between:
ZANELE
LUSITHI
VELISWA
MBEKI
THE
OTHER PERSONS UNLAWFULLY OCCUPYING PORTION 9 OF THE FARM GROENE
RIVIER, NO 821
First
Appellant
Second
Appellant
Third
Appellant
And
CAPE
LIFESTYLE INVESTMENT LTD
THE
SWARTLAND MUNICIPALITY
First
Respondent
Second
Respondent
Coram:

Erasmus, Gamble et Boqwana JJ
Date
of Judgment:      13 October 2017
JUDGEMENT
ERASMUS, J
(BOQWANA, J CONCURRING) :
[1]
This
is an appeal before the full bench of this division by the
appellants, with leave from the Supreme Court of Appeal, against
an
eviction order that was granted in favour of the first respondent by
the court
a quo
on 3 December 2014.  The court
a
quo
granted an order in
terms of which the appellants were directed to vacate the property on
which they lived and to remove any structures
or possessions from the
property on or before 31 January 2015, failing which the sheriff was
authorised and directed to evict the
occupiers and to remove, by
demolition, or other reasonable means, the structures and possessions
from the property on 2 February
2015.
[1]
[2]
The second respondent (the municipality) was directed to
provide an alternative site for the relocation of persons who
were at
that date in occupation of 51 structures (the evidence suggests
however that there were 53) which were erected on or before
22 May
2014 (when an interim interdict was granted). Save for the 51
households, no alternative sites, or accommodation was to
be provided
to the appellants.
[3]
On 16 January 2015, the appellants launched an application for
leave to appeal to the court
a quo,
which application was
dismissed on 1 July 2015. On 27 July 2015, the appellants sought
leave to appeal the order of the court to
the Supreme Court of Appeal
of which leave was granted on 8 September 2015 to a full bench.
[4]
The appeal was set down for hearing on 29 July 2016, but
postponed to 14 October 2016, for the following reasons:
[4.1.] Although leave to appeal from
the Supreme Court of Appeal was granted on 8 September 2015, the
appellants and/or the attorneys
failed to file heads of argument
timeously and to attend to a number of procedural aspects including,
inter alia, a failure to
file the notice of appeal and to prepare the
record. It seems the respondents, keen to resolve the issue, assisted
in the preparation
of the record and placing the matter on the appeal
roll. The appellants appeared without their legal representatives.
The appellants
were at some stage represented by an attorney by the
name of Mr Barclay Mate, who seems to have disappeared and could not
be contacted
in any way.   On 6 July 2016, during the court
recess and after the receipt of the appeal records, the senior judge,
through his registrar, made enquiries with the Law Society about the
whereabouts of the appellants’ attorney of record, Mr
Mate.
She was advised that the Mr Mate was no longer practising. The
first respondent’s attorneys, Laäs and Scholtz
attorneys,
were contacted to ensure that the matter be heard.  Over and
above the efforts of the respondent’s attorney,
the presiding
judge intervened and requested them to take positive steps in order
for the matter to be expedited. The presiding
judge further contacted
the Cape Law Society after it was revealed that Mr Mate was barred
from practice. The Law Society was also
requested to be present on
the day of hearing to inform the court as to what steps could be
taken in order to assist the appellants
herein. The court is grateful
to Mr Jearey of Laäs and Scholtz attorneys for the assistance
provided in the matter.
[4.2.] It needs to be noted that at
the proceedings in the court
a quo,
an advocate represented
the appellants, purportedly, on the instructions of attorney Mr
Mate.  Enquiries from the first respondent's
attorneys revealed
that he had also disappeared. Fortunately, the first respondent’s
attorneys acted responsibly by ensuring
that the appellants be given
proper and required information in order to prepare thoroughly for
the appearance in court on the
day of the appeal hearing. It is
instructive to note that the attorney who represented the group in
the past on the information
provided by Mrs Lusithi (first appellant)
was also the person that was involved in the application for leave to
appeal to the Supreme
Court of Appeal.
[4.3.] At the hearing on 29 July 2016,
the first appellant, Mrs Lusithi, a number of members of the
community as well as individuals
who would form part of the
appellants’ group were present in court. It was apparent then,
that the appellants were not English
speaking and would need an
interpreter to understand the process. After informing them of the
disappearance of Mr Mate, the then
attorney of record, the court
enquired whether they would need legal assistance, which offer they
accepted. Mr Koen who thereafter
on 14 October 2016, represented the
group at the request of the Law Society, then took the necessary
steps to ensure that the appellants
were afforded proper and
effective legal representation.  This court is indebted to
Mr
Koen
and the Law Society. In my view the efforts expended by
Mr
Koen
and the Law Society is admirable.   After
conclusion of the hearing the parties were given a further
opportunity to file
supplementary heads.
[5]
I
now turn to the issue that we are confronted with and called upon to
determine.
BACKGROUND
[6]
The factual background to the dispute between the parties was
summarised by the court
a quo
in the reasons for the order
handed down. I do not propose to deal with same in this judgment for
reasons that shall become evident
in the order I propose.
[7]
The background of the litigation, however, is important.
[8]
The eviction application was launched on 23 May 2014 by the
first respondent in which it sought an order for the eviction
of the
appellants from Portion 9 of the Farm, Groene Rivier, No.821 Western
Cape (‘the property’).   The
appellants gave
notice of their intention to oppose the eviction application. The
notice filed on behalf of the third appellant
(described as the class
of persons unlawfully occupying the property) was signed by the first
appellant. At the first hearing of
the eviction application on 1 July
2014, the then respondents, who had not filed any answering
affidavits, were directed by the
court to do so before 10 July 2014.
[9]
All the appellants were represented at the hearing of the
eviction application by Mate attorneys who were directed by
the court
to identify the then respondents they represented. An interim order
in an ancillary application brought before the eviction
application,
to prevent occupation of the property by respondents cited in that
application as South African Homeless People’s
Federation NPC
(first respondent) and The Persons Attempting or Threatening to
Occupy Portion 9 of the Farm, Groene Rivier, No.
821 (second
respondent), had been granted on 22 May 2014 and extended with a
similar direction by the court to the appellants’
legal
representatives.  It appears that at the time of service of the
interim order there were 53 structures on the property.
[10]
Despite the direction to the
legal representatives of the then respondents in both the eviction
and the interdict applications as
well as the attempts by the sheriff
to identify the individuals in occupation of the property at the
time, the first time the individual
persons within the class of
respondents cited as the third respondent in the eviction application
and the second respondent in
the interdict application were
identified was in the leave to appeal to the Supreme Court of Appeal.
It follows that at the hearing
in the court
a
quo
it must have been
unclear whether the attorneys were properly representing this class
of individuals.
[2]
[11]
At the second hearing of the
eviction and interdict application on 22 July 2014, the matter was
again postponed to 27 August 2014.
The presiding judge was at pains
to ensure that the respondents therein had been given adequate
opportunity to prepare the matter.
He further suggested (although no
direction was made in this regard) that the municipality (the second
respondent) file a report
setting out its position.
[3]
[12]
The appearance of 27 August 2014 and what followed in the order of
the court
a quo
is the subject matter of this appeal.
[13]
The court
a quo
in paragraph [5] of its reasons for its order
states as follows:
"[5]
On Wednesday, 27 August 2014, and shortly before the
proceedings would have commenced,
I
called counsel to my chambers and informed them of the view I held
with regards to those persons who assert their right to occupation
of
the property on the basis of shares purchased by House Holding
Investments.
That view was based on the evidence on record.
The
view I conveyed to counsel
was that, based on the evidence on record,
the
occupation of the property
which is the subject of these proceedings by
the
respondents is unlawful
despite the conclusion of the agreement of sale of shares between Van
der Merwe and House Holding Investments.  I further
indicated to
counsel that this was
a
firm view on my part and that no amount of argument, particularly in
the light of the evidence on record, was likely to persuade
me
otherwise
.
I then suggested to counsel to convey my view to their respective
clients and revert to me as soon as they would have
consulted,
specifically with regards to my view of the matter.
[6]
Once counsel had consulted with their clients, counsel did revert to
me and the consequence thereof was the Order I issued on
27 August
2014 in terms of which I declared, in paragraph 1 of that order, that
the respondents’ occupation on Portion 9
of the farm Groene
Rivier, No 821, Western Cape is unlawful.  I accordingly
directed that the respondents be evicted from
the property in point,
but suspended the operation of that order until 15 October 2014
subject to certain directions I gave based
on that Order." (My
underlining)
[14]
It is apparent from the reasons
for the order that once counsel had consulted with their clients they
reverted to the presiding
judge who made an eviction order, but
suspended the operation of that order to a later date with certain
directions. The directions
included that the municipality (the fourth
respondent in the court
a
quo
) attend to the property
and conduct a census of the persons in occupation of the property and
obtain certain information. I presume
that by doing this, the
identities of the third appellant (the second respondents in the
court
a quo
)
would be determined. The court specifically ordered that the report
to be compiled by the municipality must comply insofar as
possible
with the requirements set out in paragraph 40 of
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and others
2012 (6) SA 294 (SCA).
[4]
[15]
The municipality conducted a survey which depicted the state of
affairs on the property as at 24 August 2014, the results of
which
indicated the following:
There
were 206 households in existence with a total of 542 persons,
resident within those households;
(1) a total number of 250 children
were reported, 51 children were seen on the site;
(2) there were no disabled occupants;
(3) there were 87 households headed by
women;
The
municipality further indicated that there was no land available in
its area of jurisdiction to make provision for emergency
housing.
Although the report was made available to all parties concerned, no
comment was forthcoming from the appellants and it
is instructive to
note that in the court
a quo
’s reasons the court
observed the following:
"However,
that the reason the respondents had not commented on the report was
occasioned by one of the respondents being in
the Eastern Cape at the
time."
[16]
Having regard to the number of persons and households as stated
above, it is alarming that the absence of one person could
have the
effect that the rest of the respondents would/could not comment.
[17]
In
the recent matter of
Berea
[5]
the Constitutional Court was confronted with the question as to
whether in eviction proceedings, where an unlawful occupier had

purportedly consented to his or her eviction, the court is absolved
from the obligation to consider all relevant circumstances
before
ordering an eviction. The
Berea
matter is of particular importance to the development of eviction
jurisprudence in this country and the facts in that matter are
very
similar to the instant one.
[18]
In
Berea
on the day of appearance before the High Court for the hearing of the
application, the matter had stood down. The parties thereafter

informed the court that the matter was settled and presented it with
a draft order. That order provided that the occupiers agreed
that the
occupation was unlawful and an eviction order could follow. As in
this matter the eviction process itself and the dates
thereof were
regulated. The applicants contended that, firstly, there was no
actual consent between the parties when the order
was granted by
agreement. Secondly, they argued that even if consent could be found
such consent was not legally valid as the court
was still under a
constitutional and statutory obligation to satisfy itself that the
eviction would nevertheless be just and equitable
after considering
all the relevant circumstances. It was further argued before the
Constitutional Court that the absence of judicial
oversight in the
eviction orders by consent does not give effect to the right of
access to courts in terms of section 34 of the
Constitution
[6]
as the lack of judicial oversight may result in people being evicted
by purported consent without them fully understanding their
rights
and what they have consented to. The absence of judicial oversight
would lead to a lack of judicial interrogation upon the
effect of the
eviction.
[7]
[19]
The
Constitutional Court found [per para 32], that for consent to be
legally effective, it must have been given by the applicants
freely
and voluntarily with a full awareness of the rights being waived. It
must be an informed consent to be valid. This requires
a
consideration of the potential waiver of rights.
[8]
“
An
agreement to an eviction order in the circumstances would entail the
waiver of, at a minimum, the constitutional and statutory
rights: (a)
to an eviction only after a court has considered all the relevant
circumstances; (b) to the joinder of the local authority
and
production by it of a report on the need and availability of
alternative accommodation;
[9]
(c) to a just and equitable order in terms of PIE;
[10]
and (d) to temporary alternative accommodation in the event that
eviction would result in homelessness.”
[11]
In
that matter the court found that the applicants were not aware of
their rights, and that the factual consent that they gave was
not
informed and therefore, was not legally valid. The court went further
and dealt with the rest of the applicants that were not
represented
specifically at the trial.
[20]
As is the case in the
instant matter where there are a number of people styled as the third
appellants that were unknown at the
time of the hearing, in the
Berea
matter there were a hundred and eighty (180) applicants who did not
attend the High Court. The purported consent in respect of
that 180
was therefore invalid.
DUTIES OF THE COURT
[21]
Section 26(3) provides
that no one may be evicted from their home or have their home
demolished without a court order authorising
such eviction after
having due regard to “all the relevant circumstances”.
This was affirmed in
Pheko
and Others v Ekurhuleni Metropolitan Municipality
2016 (10) BCLR 1308
(CC) where the court stated that section 26(3)
does not permit legislation authorising eviction without a court
order.  The
PIE Act amplifies this by providing that a court may
not grant an eviction order unless the eviction sought would be “just

and equitable” in the circumstances. The court thus has to have
regard to a number of factors including but not limited to:
whether
the occupiers include vulnerable categories of persons (the elderly,
children and female-headed households), the duration
of occupation
and the availability of alternative accommodation or the state
provision of alternative accommodation in instances
where occupiers
are unable to obtain alternatives on their own.
[22]
Courts dealing with
eviction matters have a specific duty to ensure that the order made
is fair and just. All relevant circumstances
must be considered and
the order so made must be made with reference to section 26 (3) of
the Constitution that gave rise to the
enactment of the Prevention of
Illegal Eviction Act (PIE). An eviction order can only be granted by
a court if "it is of the
opinion that it is just and equitable
to do so, after considering all the relevant circumstances".
[23]
The matter of
Port
Elizabeth Municipality
v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) emphasized the requirement of justice and equity
under the PIE Act, and the constitutional requirement of
reasonableness set
out in
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46.
According
to
PE Municipality
,
whether it is just and equitable to order an eviction under the PIE
Act will normally depend, amongst others, on whether an occupier
can
find alternative accommodation and, if not, whether the state has
taken reasonable measures to make accommodation available
to
occupiers who are unable to provide it for themselves.
[24]
As pointed out by the
Constitutional Court in
Berea
at paragraph [42] and [43]:
“
[42] This
Court in
Port Elizabeth Municipality
emphasised the new approach that courts must adopt in eviction
matters.  A court must take an active role in adjudicating
such
matters.  As this Court stated:
‘
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
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.’
[12]
[43] The role
played by a court in such matters was elucidated further in other
cases.  As a starting point, this Court in
Machele
[13]
held that ‘[t]he application of PIE is not discretionary.
Courts must consider PIE in eviction cases.’

Furthermore, this Court in Pitje
[14]
held that courts are not allowed to passively apply PIE and must
“probe and investigate the surrounding circumstances.“
[15]
[25]
It is important to note
that the Constitutional Court remarked as follows:
“
[47] It
deserves to be emphasised that the duty that rests on the court under
section 26(3) of the Constitution and section 4 of
PIE goes beyond
the consideration of the lawfulness of the occupation.  It is a
consideration of justice and equity in which
the court is required
and expected to take an active role.
[16]
In order to perform its duty properly, the court needs to have all
the necessary information.  The obligation to provide
the
relevant information is first and foremost on the parties to the
proceedings.  As officers of the court, attorneys and
advocates
must furnish the court with all relevant information that they may
have in their possession in order for the court to
properly
interrogate the justice and equity of ordering an eviction.
This may be difficult, as in the present matter, where
the unlawful
occupiers did not have legal representation at the eviction
proceedings.  In this regard, emphasis must be placed
on the
notice provisions of PIE, which require that notice of the eviction
proceedings must be served on the unlawful occupiers
and ‘must
state that the unlawful occupier ... has the right to apply for legal
aid’.”
[17]
[26]
An agreement by the
parties as to the unlawfulness of the occupation does not absolve a
court of its constitutional duties to approach
eviction proceedings
in a manner that ensures that the protection granted in section 26 of
the constitution is fully complied.
THE
ISSUES
[27]
I now turn to the issues on appeal.  The issues on appeal before
us were:
a) whether there was a dispute of fact
that was not resolved;
b) the lawfulness of the occupation;
c) whether any eviction was just and
equitable;,
d) whether the appellant's had a fair
trial.
[28]
For the reasons set out below, I do not intend to deal with the first
three issues as it would be apparent that another court
will have to
deal with these at a later stage, should the appeal succeed. This
court being a full bench should not be seen to dictate,
nor influence
the decision of that later court.
[29]
I propose to deal with a fair trial issue first, as if we are of the
view that the appellants’ fair trial rights were
infringed, the
appeal must succeed. It is further convenient to deal with this
matter first because if this court is to conclude
that there has been
a failure of justice and that the parties were denied their
constitutionally guaranteed right to have the dispute
resolved in a
fair public hearing by court, it may uphold the appeal on this ground
alone.
THE
FAIR TRIAL ISSUE
[30]
On 29 July 2016, this court made an order that
"The
parties are requested to, in their heads of argument, deal with the
fair trial issues as raised by the court and are further
granted
leave to deal with any matter relating to the adjudication of this
matter that might arise from the record."
[31]
This matter was not raised by any of the parties in the initial
stages and was mooted by this court as a result of the reading
of the
record and the first appellant’s letter to the Supreme Court of
Appeal where she stated
"The
judge said he is not going to listen to our lawyers and no matter how
much they can try to convince him he will not change
his mind"
.
The parties indeed made submissions to this court, including this
point.
[32]
I have quoted the background and the eventual order as well as the
reasons for that order from the court
a quo
. The order itself
indicates as follows:
"Having
read the papers filed of record and having heard counsel for the
applicant and the first to third respondents…"
It
must be accepted that the “heard” referred to in the
order does not include the parties having an opportunity to
make the
submissions in open court about their respective cases, neither was
there any indication that there was substantial debate
or argument on
the issues before the judge in chambers, with the view to persuade
the judge before the granting of the eviction
order.
[33]
In my view it is clear from the papers that the appellants raised a
dispute relating to the question as to whether or not they
occupied
the property with the respondent's consent. The court
a quo
did not enquire nor did it deal with this issue fully as appears from
its reasons, it seems that the court
a quo’s
starting
point was that the zoning of the land was not for residential
purposes. It seems to me the issue of consent should have
been
interrogated a lot wider prior to the eviction order granted in a
proper hearing.
[34]
In the matter of
Transvaal Industrial Foods Ltd v BMM Process
(Pty) Ltd
1973 (1) SA 627
(A) the court held that generally
arguments for the litigants in a trial should be delivered only in
open court. Neither the court
nor the litigants should normally be
deprived of the benefit of oral argument in which counsel can fully
indulge the forensic ability
and persuasive skill in the interests of
justice and clients.  Trollip JA stated the following at 628E-F:
"I
pause here to say that generally arguments for the litigants in the
trial should be delivered only in open court and not
in writing to
the trial judge in his chambers. For sec 16 of the Supreme Court Act,
59 of 1959, requires that ‘all proceedings’
in a court
(i.e., including the final addresses of counsel) must be carried out
in open court, ‘except in so far as any such
court may in
special cases otherwise direct.”
[35]
By saying at 628G-H:
"Moreover,
for reasons that are too trite to be listed here, oral argument is
far more effective than the written substitute.
…
A trial court should, therefore, not direct that the arguments be
delivered in writing except in special circumstances
and then only
after discussion with counsel."
Tshangela v Tshangela
& others
[2001] JOL 9127
(Dk);
Brian Kahn Inc v Samsudin
2012 (3) SA 310
(GSJ);
S v Bresler
1967 (2) SA 451
(A)
[36]
Section 34 of the Constitution
of the Republic of South Africa, 1996, provides that
"Everyone
has the right throughout the dispute that can be resolved by the
application of law decided in a fair public hearing
before a court
or, where appropriate, another independent and impartial tribunal or
forum"
.  One
of the benefits of having a matter ventilated in open court is that
in proceedings such as these, litigants have an
opportunity of
listening to the argument made by their legal representative. If he
or she presents argument which is contrary to
his or her instructions
or make concessions on their behalf on matters they did not discuss,
they have an opportunity to correct
what is being conveyed to the
court. Therefore if a representative had no authority to agree to a
particular issue, they can correct
it or at least they have an
opportunity to do so at that stage. Therefore, even though the
appellants were represented by counsel
in the court
a
quo,
it does not dispense
with their right to a public hearing to persuade the court in oral
argument and to hear if their case is properly
conveyed to the court.
This view is fortified by the findings of the Constitutional Court in
Berea
which require the court to interrogate whether consent was informed.
The court there said, when faced with a settlement agreement,
“
the
court must as a first step be satisfied that parties freely,
voluntarily and in full knowledge of their rights agree to the

eviction.”
[18]
It is worth stressing that “
t
hese
duties arise even in circumstances where parties on both sides are
represented and a comprehensive agreement is placed before
the
court.”
[19]
It may well be that the judge might be persuaded differently in oral
argument, even if he or she held a firm
prima
facie
view from the reading
of the record.  The interaction with counsel in chambers may not
be sufficient, in matters such the
one instant.
[37]
In the instance of this matter the third respondent in the court
a
quo
remained unidentified at the time of the hearing.
[38]
Mrs Lusithi, in her application for leave to appeal to the Supreme
Court of Appeal, stated as follows:
"The
judge said he is not going to listen to our lawyers and no matter how
much they can try to convince him he will not change
his mind. We
came to court to be listened to and we want to be listened to."
This sentiment of the first appellant is an echo of the
reasons.
[39]
In
Chief Lesapo v North West Agricultural Bank & another 2
000
(1) SA 409
(CC) at para [22] Mokgoro J stated:
"The
right of access to court is indeed foundational to the stability of
orderly society.  It ensures the peaceful, regulated
and
institutionalised mechanisms to resolve disputes, without resorting
to self-help. The right of access to court is a bulwark
against
vigilantism, and the chaos and anarchy which it causes.
Construed in this context of the rule of law and the principle

against self-help in particular, access to court is indeed of
cardinal importance.   As a result, very powerful
considerations
would be required for its limitation to be reasonable
and justifiable."
[40]
In
Twee Jonge Gezellen (Pty) Ltd & another v Land &
Agricultural Development Bank of South Africa t/a the Land Bank, &
another
2011 (3)) SA 1
CC at 19F-G Brand AJ states the following:
"There
can be no doubt the importance of the fundamental right which is
guaranteed by s 34.  As stated by this court in
De Beer NO v
North-Central Local Council and South-Central Local Council and
Others (Umhlatuzana Civic Association Intervening):
‘
This section 34
fair hearing right affirms the rule of law, which is a founding value
of our Constitution.   The right
to a fair hearing before a
court lies at the heart of the rule of law. A fair hearing before a
court as a prerequisite to an order
being made against anyone is
fundamental to a just and credible legal order.’
"
[41]
In my view, on the basis of
these authorities and the
Berea
matter, the appellants before the court
a
quo
and
specifically third appellants were deprived of the constitutionally
guaranteed right to a hearing in public before the court.
It is worth
pointing out that even if it were to be found that the appellants
were in unlawful occupation, as was reiterated in
Berea
the enquiry to be
undertaken by the court goes beyond considerations of the lawfulness
of the occupation. It goes to fairness and
equity. Relevant
information must be placed before the court making the inquiry in
order to come to a decision of whether an eviction
order should be
granted.
[20]
In view of the fact that the matter was not properly dealt with
by the court
a quo
in respects I have already outlined, this court as an appeal court,
is not at large, in these circumstances to decide on the justness
and
equitable nature of the eviction order, on the basis suggested by the
first respondent’s counsel, which is to the effect
that, this
court has all the relevant information required to make that
decision. Besides, a lot would have changed from the time
the order
was granted by the court
a
quo
in relation to the
occupation of the property and circumstances of the occupiers, which
may necessitate fresh information to be
provided before a court of
first instance.
[42]
First respondent argues that the parties were legally represented and
consented to the order and process.   In my
view, the fact
that the parties accepted that the occupation was unlawful appears to
have been merely acquiescence and does not
comply with the test as
articulated in
Berea
and the Court’s duty as set out
above.   It is common cause that the number of occupiers
has grown substantially
from the time of the interdict to the hearing
of the matter.
[43]
The further occupiers’ identity remained unclear until the
application for leave to appeal.   A question that
arises
in respect of the third respondents in the court
a quo,
is
that they were purportedly legally represented but remained
unidentified.  It is unfathomable how an attorney could
represent
people whose identities are unknown and in terms of whom
specific facts needed to be placed before the court, in an eviction
matter.
In my view, not only did the attorney fail in his
duty but ultimately it was the court’s duty to ensure that the
information
was fully placed before it before an eviction order was
issued.  The unidentified respondents in this matter must be
treated
the same as the 180 persons in the
Berea
matter
referred to in para [18] above.
Conclusion
[44]
In my view, taken cumulatively, the appellants did not have a fair
hearing in court and that the matter must be heard afresh.
[45]
I note the views expressed by my colleague in the dissenting judgment
regarding the judge
a quo’s
impeccable values as a human
rights lawyer and a judge, with which I agree. I however wish to
place on record that this judgment
is neither reflective of the judge
a quo’s
values nor does it question his diligence in the
handling of the matter. It simply deals with the law.
[46]
It is further regrettable that this judgment took so long to be
delivered. Mindful of the rights of the parties and particularly

those of the first respondent, it is important that the matter be
placed before a new judge on an expedited basis.
[47]
The parties should be granted leave to supplement their papers for a
hearing
de novo.
[48]
It must further be fair and just that the trial court deal with the
issues of costs as it may arise.  The appellants were

represented on a
pro bono
basis by the Law Society; therefore,
there shall be no order as to costs.
[49]
I will thus order as follows:
(1) The appeal is upheld and the order
of the court
a quo
is set aside.
(2) The matter must be heard afresh
before a different judge to the court
a quo.
(3) The parties are granted leave to
supplement the papers to the extent necessary for a fair and just
adjudication of the issues.
(4) The costs to be determined by the
trial court, excluding the costs of the appeal in respect of which no
order as to costs is
made
.
________________________
N
C Erasmus
Judge
of the High Court
I
agree
_____________________
N
P Boqwana
Judge
of the High Court
GAMBLE,
J (DISSENTING)
INTRODUCTION
[50]
I regret that I am unable to concur in the judgment of my colleague
(“the main judgment”) for the reasons that
follow. I
prefer to preface those reasons with reference to certain facts which
I consider material to the determination of this
appeal and which do
not appear from the main judgment.
[51]
The first respondent (for convenience hereinafter referred to as “the
respondent”) is the registered owner of certain
undeveloped
agricultural land measuring some 140 hectares in extent
[21]
which borders on the eastern edge of the village of Chatsworth, which
owes its creation to the Group Areas Act of 1950, and which
lies a
short distance away from the town of Malmesbury. The property falls
within the jurisdiction of the Swartland Municipality
(hereinafter
“the Municipality”), the second respondent herein.
[52]
The respondent purchased the property for R2,28m in March 2005 and
took transfer thereof in April 2006. It is said that the
respondent
intended developing the property for residential purposes and to that
end it made application to the local and provincial
authorities for
the necessary planning approvals to permit it to develop a so-called
lifestyle estate (which it euphemistically
wished to call “Fynbosch
Estate”) consisting of some 36 luxury dwelling units and other
infrastructural and recreational
buildings. The necessary
applications made to, inter alia, the Municipality were ultimately
refused in September 2009 primarily
because the authorities were
reluctant to extend the urban edge of Chatsworth so as to include the
property. The property was (and
still is) zoned as Agriculture 1, did
not have any infrastructural services such as sanitation, electricity
or water and was accordingly
unsuitable for residential
accommodation.
[53]
At all material times prior to April 2009 the shareholding of the
respondent was held by 4 people - Messers Antonie van der
Merwe
(21,4%), Sean McCarthy (25%), Charl Visser (33.6%) and Martin Fourie
(20%). It is said that there had been on-going disputes
between the
shareholders arising from the problems relating to the refusal of the
development, so much so that van der Merwe decided
to dispose of his
interest in the respondent.
[22]
He first offered them to McCarthy and Visser but they declined.
Accordingly, on 11 April 2009 van der Merwe sold his 15 shares
in the
respondent to a group of persons identified as “House Holding
Investments (PHP)”, represented by Mr Ntsikelelo
Mbambo (aka
Jeffrey) of Khayelitsha, for R650 000 payable in 2 tranches of
R100 000 and R550 000 on 11 and 30 April
2009,
respectively. The sale was subject to various suspensive conditions.
[54]
In about May/June 2011 it came to the attention of McCarthy that a
company known as Great Force Investments 154 (Pty) Ltd,
which traded
as “
Stokvel Homes”,
was
offering plots for sale at “Fynbosch Estate” for R3500
each. A rudimentary advertising brochure informed unsuspecting

purchasers that the South African Homeless People’s Federation
(‘SAHPF”) had come to their rescue to address
the acute
housing shortage in the Western Cape and had acquired 10 000
sites at Chatsworth of which the first 1600 sites of
“phase 1”
were selling out fast. Interested parties were encouraged to act
swiftly – “
First come…First
served…This is yo (sic) chance to grab yo (sic) piece of land
and get your RDP HOUSE you’ve
been waiting for (sic) many
years”
[55]
In August 2011 the respondent’s attorneys wrote to Great Force
at its registered address in Khayelitsha cautioning it
against the
unlawfulness of its advertising campaign in relation to Fynbosch
Estate. It was cautioned that if it did not desist
with its
activities an urgent interdict would be sought against it. In that
letter it was alleged that Van der Merwe was a director
of Great
Force. The respondent says that it seems as if Van der Merwe, Stokvel
Homes and the SAHPF took the advice seriously and
complied with its
demands.
[56]
Thereafter, says the respondent, its officials attempted to engage
with Mbambo and others regarding the purported sale of plots
at the
estate but it encountered difficulties in pinning down the authorized
representatives of Stokvel Homes, which became something
of a “moving
target”. In the process, says the respondent, it gained the
impression that van der Merwe had misled the
representatives of
Stokvel Homes into believing that they were buying plots of land
rather than shares in the respondent. It established
that the
stokvel
[23]
consisted of about 3000 members who had clubbed together to put up
the sum of R650 000 to buy van der Merwe’s shares.
[57] As of April 2014 the property was
leased by the respondent to Mr Antonio Ormonde, a small-scale
livestock farmer from Chatsworth,
who utilised the property as
pasturage for his herd. He also farmed vegetables on the land which
was enclosed with a fence and
a gate which was secured with a
padlock.
ATTEMPTS TO OCCUPY THE PROPERTY –
MARCH 2014
[58]
On 19 and 21 March 2014 there were two attempts by people, some of
whom claimed to be members of the SAHPF, to occupy the property.
The
groups acted swiftly and were well prepared, having brought along the
necessary equipment to break the locks and gain access
to the
property. Mr Ormonde responded equally quickly and through the
intervention of the local police, the attempts to occupy
the property
and erect residential structures thereon were nipped in the bud.
[59] The respondent then sought to
engage with the intended occupiers and attended a meeting facilitated
by the Municipal Manager,
Mr Joggie Scholtz, on 9 April 2014. The
respondent was represented by McCarthy and Mr Rashay Magan (a
property development manager),
while Ms Patricia Matolengwe (who
called herself the managing director of the SAHPF) represented the
aspirant occupiers. During
that meeting (says Magan in the founding
affidavit herein) Matolengwe confirmed that she and her organization
understood that they
were not shareholders in the respondent, and
that they knew that they had neither rights of ownership or
occupation in the property.
She is alleged to have told Scholtz that
the SAHPF’s members wanted access to land for residential
purposes and called upon
the Municipality to make such land available
to its members.
OCCUPATION OF THE PROPERTY –
MAY 2014
[60]
On Sunday 4 May 2014 a group of persons again broke the locks on the
gate to the property and attempted to occupy it. Once
again the local
police were contacted for assistance which was declined on the basis
that the matter had now become a “
civil
dispute
”. Scholtz was also
contacted and he attempted to convince the group to vacate the
property but his plea fell on deaf ears.
[61]
The following day, Monday 5 May 2014, the respondent received a
letter from the Municipality’s attorneys in which it
was
recorded that 4 structures had been erected on the property, that the
property was outside the urban edge of Chatsworth and
that there were
accordingly no infrastructural services available for residential
housing. The respondent was urged to take immediate
steps to address
the situation and, if necessary, to procure an interdict preventing
anyone from squatting on the farm. The respondent’s
attorneys
immediately contacted Matolengwe via email informing the SAHPF that
occupation of the property without the consent of
the owner was
unlawful. An undertaking was sought that the existing structures
would be removed by the end of the week. There was
no response from
Matolongwe or the SAHPF to this letter.
[62]
The respondent set up a further emergency meeting at the offices of
the Municipality on Friday 9 May 2014 to discuss the issue
with the
occupiers. That meeting was attended by McCarthy, Magan, Mr Willie
van Rooy (a local representative of the African National
Congress)
and 11 persons associated with the SAHPF, including the first and
second appellants herein and Matolengwe. Scholtz declined
to attend
saying that the Municipality had made its position clear: the land
could not be lawfully occupied due to zoning restrictions.
[63]
The respondent says that at that meeting the first appellant adopted
a strident attitude and said that she and fellow occupiers
would do
whatever they needed to do to acquire land for purposes of erecting
residential structures. The first respondent denies
these
allegations. In any event, the meeting ended in deadlock and Scholtz
was asked to intercede. He did so reluctantly and reiterated
his
earlier position. When the meeting adjourned those present refused to
accept that they were required to vacate the property.
[64] Over the weekend that followed
that meeting (10 and 11 May 2014) a large number of persons (the
respondent says more than 50
individuals) invaded the property and
began marking out plots and erecting dwellings thereon. In the week
that followed further
lawyers’ letters were written, no
responses thereto were forthcoming and occupation of the property
continued apace. By the
next weekend (17 and 18 May 2014) the
occupants numbered around 100 individuals.
THE ORDERS OF VELDHUIZEN J AND
GRIESEL J
[65]
On 23 May 2014 the respondent launched urgent proceedings under case
no. 9202/2014 for relief in terms of PIE
[24]
aimed at securing the eviction of the unlawful occupiers from the
property. That application made provision for a hearing on 1
July
2014 (during the court’s mid-year recess) with the requisite
notice in terms of PIE having been given. The first, second
and third
appellants and the Municipality were cited as the first to fourth
respondents respectively in the matter.
[66]
Prior to launching the PIE application the respondent evidently
approached this court for urgent interdictory relief under
case no.
8820/2014
[25]
aimed at restraining unauthorized persons from further entering on
the property. In any event, on Thursday 22 May 2014 Veldhuizen
J
granted a rule
nisi
under that case also returnable on 1 July 2014 (which order was to
operate as a temporary interdict pending the return day) interdicting

the two respondents named therein
[26]
from entering on the property without prior written consent and,
further, from erecting any structures on the property.
[67]
The order also incorporated extensive provisions for service by the
sheriff through the fixing of the order at 2 prominent
points on the
property and on all existing structures, as well as service on all
occupants of all such structures. The sheriff
was also directed to
draw up a detailed list of all people then in unlawful occupation of
structures on the property and to monitor
the premises on a daily
basis for a week in order to ensure that copies of the order remained
in place.
[68]
The sheriff duly served the order of Veldhuizen J shortly before 5pm
on 22 May 2014 and recorded, inter alia, that there were
then 53
structures on the property. All of these were individually numbered
by the sheriff with a can of spray paint and photographed
while the
details of the occupants were also recorded. In addition, the
respondent’s attorneys emailed copies of the Veldhuizen
order
to,
inter alia,
the
SAHPF and the first appellant.
[69]
The first to third appellants each entered an appearance to defend
the PIE application on Monday 28 May 2014. The notices were
properly
drawn in the customary format, suggesting that there may have been
some assistance given to the appellants in that regard
by an attorney
or para-legal. The first appellant personally signed her notice of
intention to oppose and gave her service address
as “[...]
,
Groene Rivier (sic) No 821, Chatsworth, Malmesbury”.
The
second appellant did likewise and furnished her service address as
“
Site Office, [...], Groene Rivier
(sic) No 821, Chatsworth, Malmesbury”.
The
second appellant also filed a notice of intention to oppose on behalf
of the third appellant with the service address given
as “
Office
Administration, Site Office, [...], Groene Rivier (sic), Chatsworth,
Malmesbury.”
[70] On 5 June 2014 the sheriff
oversaw the removal of 42 structures from the property – being
additional structures erected
after the interim interdict of 22 May
2014, while the original 53 structures remained in place. On 9 June
2014 the respondent sought
the requisite statutory
ex parte
notice
in terms of s4(2) of PIE and on 12 June 2014 Griesel J granted an
order to that effect which was served by the sheriff just
after 10 am
the following day. At that stage there were 86 structures on the
property – 33 more than the original 53 structures.
OPPOSITION TO THE APPLICATION AND
FURTHER POSTPONEMENTS
[71]
When the matter was called in the Motion Court on Tuesday 1 July 2014
the appellants were represented by counsel and an attorney
and sought
a postponement to file opposing papers, this notwithstanding the fact
that 5 weeks had passed since they had entered
an appearance to
oppose the matter. A postponement was granted on the basis that the
interim interdict was extended until the further
hearing of the
matter on 24 July 2014.
[72] On 10 July 2014 the first
appellant deposed to an answering affidavit on behalf of herself and
the other appellants, which
affidavit was confirmed by the second
respondent. On that day the appellants’ opposing affidavits
were duly filed by Mate
Attorneys of Cape Town, acting on their
behalf. The thrust of the affidavit is that the occupiers were duped
by van der Merwe to
buy his and McCarthy’s respective interests
in the respondent and that they had effected part payment of the
purchase price
to van der Merwe who in turn had only paid McCarthy a
portion of what was due to the latter. The occupiers maintained that
the
acquisition of an interest in the respondent automatically gave
them the right to occupy the property. The first appellant also

claimed that the occupiers were given permission by McCarthy to move
onto the land:
“
21.
Indeed Mr McCarthy advised us that we can occupy the property because
he does not have a problem with us occupying same.
22. On 19 March
2014 we indeed went and occupied the property and only the portion in
(sic) the property which was shown to us.
While in (sic) the property
people were then approached by members of the SAPS and 42 of the
people were arrested on the basis
that they had occupied the land
illegally and without consent and thus committing what is formally
known as “a land grab”.
The members of the SAPS indicated
that they were acting on request from the Land Lord (sic), in this
case Mr McCarthy.
23. On 09 April
2014 we again met Mr McCarthy and some members of the municipality
who indicated that we cannot occupy the land
because it is not for
dwelling purposes. Mr McCarthy however indicated that he does not
have a problem with us occupying the land
and it is the municipality
that are (sic) making things difficult.
24. In light of
this we again informed McCarthy that we would re occupy the land and
indeed on 04 May 2014 we went and occupied
the land.”
[73] But, the first appellant then
almost immediately put up a different reason for occupation of the
property:
“
28. We do
not have any alternative accommodation and we have invested all our
money in buying the plots and building material used
to build the
shacks which we live in. What triggered the need to take occupation
is (sic) the lengthy periods (sic) the whole entire
process was
taking and need (sic) to ensure that our money already spent comes
back to us if the land cannot be obtained. As it
stands our only
security in (sic) the land.”
[74] On 24 July 2014 the matter served
before Traverso DJP in the Motion Court again when, by agreement, it
was postponed for hearing
on the Semi-Urgent Roll on 27 August 2014,
with provision made for the filing of heads of argument. In para 4 of
that order the
parties further agreed that the Municipality was –
“…
directed
to file a report on or before Thursday 7 August 2014 dealing with the
provision of alternative accommodation.”
The Municipality duly complied with
this order when Scholtz made an affidavit on 6 August 2014 stating
that the Municipality had
no alternative accommodation available in
its area of jurisdiction.
THE HEARING BEFORE YEKISO J ON 27
AUGUST 2014
[75]
The facts relevant to the hearing of the matter on the Semi Urgent
Roll before Yekiso J on Wednesday 27 August 2014 are, save
as set out
hereunder, recited in the main judgment. In his reasons ultimately
delivered in relation to the eviction order granted
on 3 December
2014, Yekiso J explained what occurred at the August hearing. In my
considered view, there are various factors which
fall to be
considered in relation to this hearing, and which obviously
influenced the reasoning of the Judge
a
quo
.
[76]
Firstly, the occupiers of the property before Yekiso J were
represented by counsel and attorneys of their choice: they
accordingly
had access to legal advice and representation. Secondly,
as demonstrated above, in the affidavit filed on behalf of the
occupiers,
the first appellant (who throughout had adopted a leading
role on behalf of the other appellants and continued to do so on
appeal
when the matter initially came before this court) effectively
conceded that the occupation was unlawful and was a stratagem
designed
to enhance their attempts to secure contractual rights in
the land. In any event, whatever those rights may have been, the land

was incapable of lawful occupation in light of its zoning. Further,
the local authority had entered the fray and demanded of the
owner
that it ensure that the zoning rights were observed by it. It had
also filed a report with the court in relation to the
non-availability of alternative accommodation. Finally, there was
already a court order in place (per Veldhuizen J) which precluded
the
occupiers of all but the original 53 structures on the land, from
entering upon the property. At the time that Yekiso J heard
the
matter there were then already 206 structures on the land.
[77]
In para [5] of his reasons, Yekiso J said that he came to the
conclusion, on the evidence before him, that the land had been

occupied unlawfully and gave his reasons therefor. He stressed,
correctly in my view, that rights of ownership in the shareholding
of
the respondent did not equate to rights of occupation of its only
asset – the property in question. In my view, this conclusion

is unassailable in respect of the 153 new structures erected after
the order of Veldhuizen J. And, in my view, it is equally
unassailable
in respect of the occupiers of the 53 original
structures whose occupation was not only contrary to the relevant
zoning scheme,
but who had participated in “
what
is formally known as a ‘land grab’ “
expediently
and for strategic purposes to bolster their alleged contractual
claims.
[78]
Moreover, to the extent that the first appellant had alleged in the
answering affidavit that the occupation was with the consent
of one
of the shareholders of the owner (and assuming for the moment that
that allegation was capable of surviving the application
of the rule
in
Plascon-Evans
[27]
),
any such purported consent had clearly been revoked when the founding
affidavit in the eviction application was deposed to and
the removal
of the occupiers from the land was sought. At best for the occupants
of the original 53 structures then, their right
to occupy was on the
basis of a
precarium
tenens
,
a common law right of occupation which is revocable at the will of
the owner.
[28]
On any basis then the land was illegally occupied when the matter
served before the court
a
quo
and
Yekiso J’s finding in that regard cannot be faulted.
FAIR TRIAL RIGHT INFRINGED?
[79]
As Yekiso J’s later reasons reflect, he informed the parties’
legal representatives in chambers before the hearing
on 27 August
2014 that he had come to a firm view on the question of the
illegality of the occupation and suggested that the parties
engage
with each other in the light of this view. What Yekiso J did not say
to the parties at the time was that he would not allow
the matter to
be heard in open court. It was therefore open to the appellants’
counsel, for instance, to have asked that
the matter proceed in open
court or that Yekiso J recuse himself on the basis of having
exhibited bias against the appellants.
Counsel did neither but
consulted with his clients and thereafter did not oppose the granting
of the order made by Yekiso J later
that day. This stance is
consonant with the alleged concession made by the first appellant at
the meeting on 9 April 2014 that
the occupiers appreciated that their
alleged shareholding did not entitle them to occupy the land.
[80]
It is important to bear in mind at this juncture the general
principle that, when parties are represented in litigation by
an
advocate, they repose their trust in their counsel and, as in this
case, the advocate makes the tactical and strategic decisions
based
on instructions and conveys them to the court.
[29]
There is no suggestion here in any of the affidavits filed on behalf
of the occupiers that the appellants did not instruct their
counsel
on the day to act otherwise than in the manner in which he did.
Indeed, in the affidavit deposed to by the first appellant
in support
of the application to the Supreme Court of Appeal for leave to
appeal, the attack was only against the merits of the
decision of
Yekiso J. There was no allegation that the appellants’ fair
trial rights protected under s34 of the Constitution
were infringed
at the hearing on 27 August 2014.
[81]
The question as to whether the appellants’ rights under s34
were infringed was raised for the first time on appeal by
this court
meru
motu.
It
was in response to an invitation by the Presiding Judge, when
postponing the matter on 29 July 2016, that Mr Koen addressed us
in
this regard on behalf of the appellants in argument on 14 October
2016. While it is open to a court to raise such an issue of
its own
accord, in fairness to all parties, it should only do so when the
question of law emerges fully from the evidence, when
it is necessary
for a just decision in the decision of the case and, importantly, as
long as the consideration thereof on appeal
does not lead to
prejudice to the opposing party.
[30]
The approach was usefully summarized thus in
Maphango:
“
[109]
The rule in terms of which a court permits a party to raise a point
of law is subject to well-known conditions. These
conditions ensure
fairness to all parties. First, the point sought to be raised must be
a point of law in the true sense of the
word. Second, if not
foreshadowed in the pleadings, it must be supported by the
established facts in the record. Further, the entertainment
of the
point must not prejudice the other parties. Consistent with these
requirements, in
Barkhuizen
this court made it clear that the party will not be permitted to
raise a point not covered in the pleadings if its consideration
will
result in unfairness to the other party. The purpose of this rule is
to give a fair hearing to all parties. Therefore, the
rule promotes
the right to a fair hearing which is entrenched in s 34 of the
Constitution.”
[82]
Having heard argument on behalf of the respondent I am not persuaded
that the alleged infringement of the appellants’
rights appears
with sufficient clarity from the record before us to enable this
court to consider the issue without doing an injustice
to the
respondent. In his heads of argument filed on behalf of the
respondent, Mr Cooper alluded to discussions in the Judge’s

Chambers prior to the order being granted on 27 August 2014 and
suggested that oral submissions were made by the parties’

counsel. That may have been so but because we do not have any
admissible evidence from either of the parties as to precisely what

transpired on the day, we can only have regard to what the Judge
a
quo
says in his reasons. This is of
limited assistance in assessing whether the constitutional right in
question has been infringed
and I am loathe to make such a finding in
the absence of clear evidence establishing a breach of such a right.
[83]
Furthermore it is not necessarily a fatal irregularity to dispose of
a matter without hearing evidence.
[31]
At the end of the day each alleged transgression will have to be
considered on its merits. The important fact in this matter is
that
the appellants were legally represented, had filed written argument
and their counsel did not thereafter assert the right
to be heard in
open court.
[84]
I am constrained to remark in passing that Yekiso J (recently
retired) had a long and distinguished record in the field of
human
rights before he came to this Bench and he continued to uphold those
values diligently in the matters over which he presided
in this
court. Indeed, his nuanced reasons here demonstrate how alive he was
to the impact to both parties of the issues before
him. In the
circumstances, and in the absence of the issue having been fully
ventilated in the papers, I am of the respectful view
that it is not
appropriate for this court to speculate about the possible unfairness
of the proceedings in the court
a quo.
[85] I am satisfied, having considered
the matter in its entirety, that the appellants were not dealt with
in an arbitrary fashion.
They were legally represented and filed
opposing papers and heads of argument. On the strength thereof the
presiding judge formed
a strong
prima facie
view. It seems
that this view probably accorded with their own understanding of
their position, and the appellants accordingly
appear to have
accepted their lot – that an eviction was inevitable.
Thereafter, as I shall demonstrate shortly, Yekiso J’s

management of the matter was impeccable, affording the appellants all
of the procedural rights to which they were entitled under
the PIE
jurisprudence.
STATUTORY COMPLIANCE?
[86]
As persons likely to be evicted from a property that they were
unlawfully occupying, the appellants were afforded the protection
of
s26 (3) of the Constitution
[32]
.
Further, they enjoyed the procedural rights afforded to them under
PIE. The correct interpretation of these statutory instruments
has
been the subject of numerous decisions of both the Supreme Court of
Appeal and the Constitutional Court.
[33]
The principles which emerge from those cases are by now clear.
[87]
Firstly, all such evictions raise a constitutional issue and are
therefore subject to judicial oversight. Secondly, where the

unlawfulness of the occupation has been established an eviction must
follow provided that it is just and equitable to grant such
an order
after consideration by the court of all the relevant circumstances.
Where the spectre of homelessness might ensue after
such an eviction
the relevant local authority must be joined in the proceedings and it
must report to the court regarding the availability
of alternate or
emergency housing. Finally, consideration must also be given to the
fact that the unlawful occupation of land does
not have the effect of
expropriating the owner of its rights in the property protected under
s25 of the Constitution.
[88]
The main judgment seeks to rely heavily on the recent judgment of the
Constitutional Court in
Berea
as providing the complete answer in this case. While the case does
restate all of the relevant principles in mass eviction cases,
it is
distinguishable from the present matter in a number of fundamental
respects and is accordingly not the panacaea to the appellants’

problems in this matter. Firstly, the occupiers in that case were not
legally represented before the court of first instance and
in fact
sought a postponement to remedy that situation. That is not the case
here where the occupiers were represented before this
court with
effect from at least 1 July 2014, and possibly earlier if regard be
had to the content and format of the entry of appearance
to defend.
[89]
Next, the local authority was not initially joined as a party in
Berea
whereas in this matter the Municipality
was not only joined from the outset but had itself been instrumental
in the run-up to the
litigation in raising its objection to the
incremental occupation of the property which infringed upon the local
zoning provisions
and, most importantly, had reported to the court
hearing the matter on 27 August 2014 on the non-availability of
alternative accommodation.
Thirdly, the occupiers in
Berea
were not only unrepresented but had
concluded an agreement with the owner to quit the premises while so
unrepresented.
[90]
In this matter, the evidence suggests that the appellants’
legal representatives may have participated in negotiating
the terms
of the draft order made by Yekiso J on 27 August 2014. But, even if
the occupiers’ legal representatives did not
negotiate its
terms with the respondent, they certainly acquiesced (through counsel
and their attorney) in the terms of that order
being made by Yekiso
J. Importantly, there is no complaint in the affidavit filed in the
application for leave to appeal that counsel
was not authorized to
negotiate those terms or to acquiesce therein, nor was it argued on
appeal before this court that there was
anything improper or legally
assailable in the fact that they may have so acquiesced
[90A] The reliance
therefore in the main judgment on the approach enunciated in
Berea
as a basis for finding that Yekiso J should have interrogated the
integrity of the appellants’ purported consent to the order
of
27 August 2014 before he made it, is not based on any facts before
the court
a quo
or
argument advanced in this court. The appellants’ stance in the
lower court was clear – they did not agree to the
order and
indeed the preamble to the order confirmed this, there being no
recordal that the draft order was presented to the court
by agreement
between the parties. And, importantly, in his reasons Yekiso J did
not record any finding that the appellants had
consented to the
order. Consent was therefore not the basis for the order of Yekiso J.
[91]
But perhaps the most fundamental difference between the two cases is
that when Yekiso J made the decision to evict on 27 August
2014, he
was already in possession of a report from the Municipality regarding
the non-availability of alternative accommodation.
To the extent that
any eviction from the property might accordingly lead to
homelessness, Yekiso J had done what was required of
a court in terms
of the directives given in para 25 of
Changing
Tides.
[92]
Berea
confirms
the earlier
dicta
of
our apex courts
[34]
that the court hearing an application for eviction under PIE is
required to adopt an interventionist role in the proceedings. In
this
matter that is precisely what Yekiso J did. In the first place the
operation of the order of 27 August 2014 was suspended
until 15
October 2014 pending a further report from the Municipality in
relation to alternative and/or temporary emergency accommodation.

Further, the Municipality was directed to immediately enter upon the
property and conduct a detailed census of the occupants thereon.

Thereafter, the Municipality was directed to comply with its
obligations as set out in para 40 of
Changing
Tides
.
Importantly, the order of 27 August 2014 made it clear that the date
of eviction would only be established once the court had considered

this report.
[93]
In pursuance of his obligation to manage the process, Yekiso J met
with the parties’ legal representatives in Chambers
on 15
October 2014 and a detailed minute of that meeting is filed on
record. That minute recorded the concerns of both the owner
and the
Municipality that, notwithstanding the extension of the interim
interdict, there had been a steady flow of people onto
the property:
from 53 structures on 22 May 2014, to 206 on 27 August 2014 and 300
on 14 October 2014. The Judge directed that the
matter would serve
before him again in Chambers on 6 November 2014. It is not apparent
from the record what transpired on that
day but eventually on 3
December 2014 Yekiso J made an order for the eviction of the
occupiers from the property at the end of
January 2015. At that stage
he knew all that he needed to know in exercising his discretion to
make such an order. Importantly,
in making that order the Judge
a
quo
required the Municipality to make
alternate emergency housing available to the original 53 occupiers
who were on the property at
the time of the order of Veldhuizen J.
[94]
In his reasons for that order filed later, the Judge
a
quo
noted, inter alia, the report of
the Municipality of 14 October 2014 regarding the availability of
emergency accommodation at a
place known as “Sibanye” in
the neighbouring Municipality of Moorreesburg (about 60 km to the
north along the N7 highway).
This availability was reconfirmed by Ms
Pillay on behalf of the Municipality at the hearing on 14 October
2016.
[95]
Insofar the appellants may complain that this is not a suitable
alternative, consideration must be given to the fact that the
first
appellant pointed out in the answering affidavit that many of the
original occupiers had relocated to Chatsworth from the
township of
Du Noon which is some 40 kms to the south along the N7. At that
stage, the appreciable distance of their relocation
did not seem to
be a serious consideration to the occupiers. And, as the
Constitutional Court recently observed in
Baron
[35]
,
(in a matter where the City of Cape Town offered evicted farm-workers
outside Stellenbosch the option of moving to its temporary
relocation
area at Wolwerivier near Mamre, some 50 km away), “
(t)
he applicants cannot delay their eviction each time by stating that
they find the alternative accommodation offered by the City

unsuitable.”
[96] Having regard to all of these
considerations I am satisfied that Yekiso J complied properly with
all the statutory injunctions
inherent in a matter such as this and
that there is no basis to interfere with his order of 3 December
2014.
CONCLUDING REMARKS
[97]
In the event that I am wrong in this conclusion, and if it is found
that the main judgment is correct in relation to the fair
trial
issue, I consider that the remittal of the case for a hearing
de
novo
is
not warranted in the circumstances. All of the considerations
required for a court to determine whether an eviction order should
be
granted, and if so upon what terms, are before this court, which is
in as good a position as any other to make an order that
is just and
equitable
[36]
.
No purpose will be served by remitting the matter at this stage.
[98]
Moreover, to refer the matter back for such a hearing will be
prejudicial to the respondent which has had to put up with the

unlawful occupation of its land for more than 3 years now. To order a
hearing
de novo
will
place the owner in the untenable position that it may have to endure
an even longer period of deprivation of its rights of
ownership as
the matter goes through a full hearing and further possible appeals.
[99] Upon the adjournment of the
matter before this court a year ago the respondent was assured a
speedy resolution to this appeal,
something which has not eventuated.
All the while the appellants have had the use of the land, the vast
majority of them in blatant
contempt of the order of Veldhuizen J. In
Baron
the Constitutional Court described the
owner’s predicament thus –
‘
[49] The
applicants have enjoyed free accommodation since 8 December 2012,
when their right of occupation was terminated, until
2017, almost 5
years. The first respondent has had a temporary restriction on its
property rights for that period and it cannot,
in fairness, be
expected to continue granting free accommodation to the applicants
where its current employees are disadvantaged.
Therefore, the
applicants must be evicted to enable the first respondent to
accommodate its current employees.”
In
the context of the facts at hand, I consider that the respondent is
now entitled to have free and unfettered access to its land
to do
with it what it is legally permitted to.
[100] In the circumstances, I am of
the respectful view that the appeal should succeed with costs.
However, to afford the occupants
presently on the property sufficient
time to make alternate accommodation arrangements, I would vary the
dates in the order of
Yekiso J of 3 December 2014 as follows:
·
In para 1.1, the date 31 January 2015 is to
read 15 December 2017;
·
In para 1.3, the date 2 February 2015 is to
read 19 December 2017;and
·
In para 2, the date 31 January 2015 is to
read 15 December 2017.
__________________
P A L GAMBLE
Judge of the High Court
For
Appellants

Mr S Koen
Attorneys
for Appellants
Bisset Boehmke & McBlain
Counsel
for 1
st
Respondent     Adv. G Cooper
Attorneys
for 1
st
Respondent   Laäs & Scholtz Inc
Counsel
for 2
nd
Respondent    Adv. K Pilla
Attorneys
for 2
nd
Respondent  Du Plessis & Mostert
[1]
See reasons for the order given on 3
rd
December 2014. Para 18 pp 11-14.
[2]
The other persons unlawfully occupying portion 9 of the farm Groene
Rivier, herein referred to as the Third Appellant.
[3]
The
third general principle is that evictions which might lead to
homelessness are never just private disputes. They always involve

the state, whose duties to provide emergency housing may be
triggered by an eviction. When there is a possibility of people
being left homeless, relevant organs of state (usually
municipalities) must be joined as
necessary
parties to the legal processes for eviction. The purposes of this is
so that the municipality must investigate and present
the court with
a report dealing with: the potential impact of the eviction on
vulnerable groups such as the elderly, children,
disabled persons
and households headed by women; efforts to facilitate mediation or
meaningful engagement between all concerned;
and the steps taken to
secure alternative accommodation for those who face homelessness as
a result of the eviction. All of these
are factors under PIE which
must guide the court in deciding whether an eviction would be “just
and equitable”, and
what safeguards must be put in place to
protect vulnerable groups.
[4]
Paragraph 40
states: “The general approach of local authorities, so far as
it can be discerned from the reported cases,
has been to file with
the court a general report detailing its current housing policy
without addressing the facts of that particular
case. That is
inadequate. In addition to such a report it must deal directly with
the facts of the particular case. That report
must specify:
(a)
the information available to the local authority
in regard to the building or property in respect of which an
eviction order is
sought, for example, whether it is known to be a
‘bad building’, or is derelict, or has been the subject
of inspection
by municipal officials and, if so, the result of their
inspections. (It appears from some of the reported cases, like the
present
one, that the local authority has known of the condition of
the building and precipitated the application for eviction by
demanding
that owners evict people or upgrade buildings for
residential purposes.) The municipality should indicate whether the
continued
occupation of the building gives rise to health or safety
concerns and express an opinion on whether it is desirable in the
interests
of the health and safety of the occupiers that they should
be living in such circumstances;
(b)
such information as the municipality has in regard to the occupiers
of the building or property, their approximate number
and personal
circumstances (even if described in general terms, as, for example,
by saying that the majority appear to be unemployed
or make a living
in informal trades), whether there are children, elderly or disabled
people living there and whether there appear
to be households headed
by women;
(c)
whether in the considered view of the local authority an eviction
order is likely to result in all or any of the occupiers
becoming
homeless;
(d)
if so what steps the local authority proposes to put in place to
address and alleviate such homelessness by way of the provision
of
alternative land or emergency accommodation;
(e)
the implications for the owners of delay in evicting the occupiers;
(f)
details of all engagement it has had with the occupiers in regard to
their continued occupation of or removal from the property
or
building;
(g)
whether it believes there is scope for a mediated process, whether
under s 7 of PIE or otherwise, to secure the departure
of the
occupiers from the building and their relocation elsewhere and if so
on what terms and, if not, why not.”
[5]
Occupiers of Erven 87 and
88
Berea
v De Wet N.O. and Another
2017 (8) BCLR 1015
(CC) handed down on 8 June 2017.
[6]
Act 108 of 1996. The relevant section reads as follows “Everyone
has the right to have any dispute that can be resolved
by
application of the law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial

tribunal or forum”.
[7]
See also
Gundwana
v Steko Development and Others
2011
(3) SA 608 (CC).
[8]
Also see
Mohamed v
President of the Republic of South Africa
[2001]
ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at para 62.
[9]
Changing Tides
above n 6 at para 38.
[10]
See sections 4(6)-(7) and 6(1) of PIE.
[11]
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
[2011] ZACC 33
;
2012 (2)
SA 104
(CC);
2012 (2) BCLR 150
(CC) (
Blue
Moonlight
) at para 96.
[12]
In that case, the Court considered an application for leave to
appeal against a decision of the Supreme Court of Appeal (SCA).
The
SCA set aside an eviction order on the basis that it would not be
“just and equitable” within the meaning of
section 4 (7)
of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998 (PIE Act) to relocate
a community of 68
informal settlers to a place where they would not enjoy a measure of
tenure security. In an expansive decision
which provided a
sensitive, generous and pro-poor interpretation of the duties of
local authorities in eviction cases, the Court
held that it would
not be just and equitable to evict a community without prior
consultation with them and without at least considering
the
possibility that they could be provided with tenure security on any
relocation site (para. 55). While it is true that the
Court in
Port
Elizabeth Municipality
was
not directly considering the content of section 26 of the
Constitution, the decision is clearly an attempt to interpret the

PIE Act through the prism of section 26 of the Constitution and the
Grootboom
decision.
The Court’s concern for the need to provide the occupiers with
some measure of tenure security is clear throughout
the judgment
(paras 17 and 18).
Port
Elizabeth Municipality
accordingly
reinforces the view that security of tenure is a constituent of the
right of access to adequate housing. The limitation
of tenure
security will always have to be justified.
[13]
Machele and
Others v Mailula and Others
2010
(2) SA 257
(CC)
[zRPz]
[14]
See
Pitje v Shibambo
2016
JDR 0326 (CC)
[15]
Another
principle that has crystallised in our law is the law of joinder,
viz. municipalities must be joined where eviction is
likely to
result in homelessness, is now part of our law.  Wallis JA
amplified on this in
Changing
Tides
:
Whenever the circumstances alleged by an applicant for an eviction
order raise the possibility that the grant of that order
may trigger
constitutional obligations on the part of a local authority to
provide emergency accommodation, the local authority
will be a
necessary party to the litigation and must be joined. This is
because section 26 of the Constitution’s positive
obligations
in respect of the provision of alternative accommodation to evictees
who would otherwise be rendered homeless lie
primarily with the
state rather than private parties.
[16]
The PIE Act was
intended to protect the millions of South Africans in urban areas
who had no common law entitlement to the land
that they lived on, at
least until housing could be rolled out at scale. In this sense, the
PIE Act sought to invert the legal
order in relation to evictions
from a legal framework that targeted unlawful occupation and “land
invasion”, to one
that sought to prevent illegal evictions.
The PIE Act thus had the potential to alter the legal system from
one that disproportionately
favoured property owners by providing
for speedy and effortless evictions in instances where they alleged
that residents were
in unlawful occupation, to one that provided
substantial protection for unlawful occupiers by requiring that no
eviction order
could be granted unless the eviction would be “just
and equitable”. However, for the first few years of its
application,
the PIE Act seemed to have limited impact on the
courts, and particularly the lower courts.
See,
for example,
Betta
Eiendomme (Pty) Ltd v Ekple – Epoh
2000
(4) SA 468
(W) and
Groengrass
Eiendomme (Pty) Ltd v Elandsfontein Unlawful Occupants and Others
2002
(1) SA 125 (T).
[17]
Berea
supra
[18]
Berea
supra at para 66
[19]
Berea
supra
at para 54
[20]
Berea
supra at paras 46 and 47-
[21]
The property is registered in the Deeds Office as “
Portion
9 of Farm 821, Groene Rivier, Malmesbury Road.”
[22]
It appears as if McCarthy and Visser, the directors of the
respondent, were in alliance and took advantage of their majority

stake in the company to form a united front.
[23]
According to
Wikipaedia
On-line Encyclopaedia
,
“
Stokvels are
invitation only clubs of 12 or more people serving as rotating
credit unions or saving schemes in South Africa where
members
contribute fixed sums of money to a central fund on a weekly,
fortnightly or monthly basis.”
[24]
The Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, 19 of 1998
[25]
I say ‘evidently’ because the papers in the interdict
application are not part of the appeal record and therefore
neither
the notice of motion nor the founding affidavit is before us.
[26]
Cited as the SAHPF and “
The
Persons Attempting or Threatening to Occupy Portion 9 of the Farm
Groene Rivier, No 821”
respectively.
[27]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A)
[28]
Malan v Nabygelegen Estates
1946 AD 562
at 573.
[29]
R v Matonsi
1958
(2) SA 450
(A) at 456 A-C
[30]
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at
[39]
;
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC) at
[68]
;
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
2012
(3) SA 531
(CC) at [109] – [114];
Molusi
and Others v Voges NO and Others
2016
(3) SA 370
(CC) at [28].
[31]
Brian Kahn Inc v Samsudin
2012 (3) SA 310
(GSJ) at
[6]
[32]
The subsection provides that –
“
(3)
No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all
the
relevant circumstances. No legislation may permit arbitrary
evictions.”
[33]
See for example
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC);
Machele v
Mailula
2010 (2) SA
257
(CC);
The Occupiers,
Shulana Court, 11 Hendon Road Yeoville, Johannesburg v Steele
2010 (9) BCLR 911
(SCA);
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
2012 (2) SA 104
(CC);
City
of Johannesburg v Changing Tides 74 (Pty) Ltd
2012 (6) SA 294
(SCA);
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick de Wet N.O,
[2017]
ZACC 18.
[34]
See for example
Shulana
Court
at [11] –
[15] and
Changing Tides
at [26]
[35]
Baron and Others v Claytile
(Pty) Ltd and Another
[2017]
ZACC 24
(13 July 2017) at [50]
[36]
Take and Save Trading CC
and Others v Standard Bank of SA Ltd
2004 (4) SA 1
(SCA) at [4]