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[2020] ZAWCHC 72
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Droomer NO and Another v Snyders and Others (A336/2019) [2020] ZAWCHC 72 (4 August 2020)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: A336/2019
Before: The Hon. Mr Justice Binns-Ward
The
Hon. Ms Justice Cloete
The
Hon. Ms Justice Slingers
Hearing: 31 July 2020
Judgment:
4 August 2020
In
the matter between:
HENRI
DROOMER
N.O.
First
Appellant
WILLEM
JACOBUS VAN WYK
N.O.
Second
Appellant
(In
their capacity as trustees of the R45 Trust)
and
DENVER
SNYDERS AND 24
OTHERS
Respondents
JUDGMENT (delivered by email and release to Saflii)
BINNS-WARD J (CLOETE and SLINGERS JJ concurring):
[1]
This is an appeal from the judgment of
Saldanha J upholding the respondents’ objection
[1]
to the jurisdiction of the High Court to adjudicate motion
proceedings instituted by the appellants for the eviction of the
respondents
from certain immovable property near Pniel in the
municipality of Stellenbosch. The appeal to the Full Court is
brought with
the leave of the learned judge at first instance.
[2]
The Municipality, which was cited as the
25
th
respondent in the proceedings at first instance, has not played an
active role in the litigation. Any reference to ‘the
respondents’ in this judgment accordingly denotes only those of
them who were cited as persons allegedly in unlawful occupation
of
the land concerned.
[2]
[3]
The court a quo acceded to a request by the
parties to decide the issue of jurisdiction as a separate and
preliminary point.
It must be inferred from this that the court
and the parties considered that the respondents’ objection to
the court’s
jurisdiction was a matter that might conveniently
be determined discretely from the merits of the claim.
Regrettably, the
judge’s attention was not directed to binding
appeal court authority that deftly disposed of the point; see
Agrico
Masjinerie (Edms) Bpk v Swiers
[2007]
ZASCA 84
(1 June
2007); 2005 (5) SA 305
(SCA);
2007 (10) BCLR 1111.
The unfortunate consequence was that, inconsistently with that
authority, the court upheld the respondents’ objection
to its
jurisdiction to entertain the matter and dismissed the application.
In the result it was clear that the appeal had
consequently to be
upheld, and Mr
Papier
for the respondent quite correctly accepted as much.
[4]
Reversing the dismissal of the application
requires us to consider how its further adjudication should proceed
on the merits, and
for that purpose it is necessary to go into what
happened in the first instance hearing in some detail.
[5]
The eviction proceedings were instituted in
terms of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act
19 of 1998 (the PIE Act). According to
s 2 of that Act its provisions apply in ‘
in
respect of all land throughout the Republic
’.
Section 29(2), as amended, of the Extension of Security of Tenure Act
62 of 1997 (ESTA) provides, however, that ‘[t]
he
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, 1998,
shall
not apply to an occupier
in
respect of land which he or she is entitled to occupy or use in terms
of this Act.
’ (Underlining
for emphasis.)
[6]
The
respondents contended that they are ‘
occupiers
’
within the meaning of ESTA, and that the proceedings for their
eviction in terms of the PIE Act were consequently incompetent.
They alleged that the court a quo lacked jurisdiction because
proceedings for the eviction of ‘
occupiers
’
who are entitled to the protection of ESTA can take place in the High
Court only with the consent of all the parties.
[3]
Absent such consent, so contended the respondents, the relevant
eviction proceedings could competently be instituted only
in a
magistrate’s court or the Land Claims Court.
[4]
[7]
Despite the provisions of s 29(2) of
ESTA quoted above, the judge considered it unnecessary for the court
‘
to express its view whether the
[respondents]
qualified as
[occupiers]
under ESTA
’.
It would appear that having rejected the appellants’ contention
that the affected land was not amenable to
ESTA by reason of the
exclusions provided in s 2(1) of that Act, the judge considered
that his determination on that point
afforded sufficient basis, on
its own, to decide the preliminary point against the appellants and
dismiss the application.
The essence of the court a quo’s
approach was expressed as follows in para 17 of the judgment:
During the course of argument counsel
for the applicants sought to invite the court to express its view as
to whether the [respondents]
qualified as occupants [it is clear that
by ‘occupants’ the court meant ‘occupiers’]
under ESTA was a matter
for this court to determine when considering
the jurisdictional issue. Counsel for the respondents initially
claimed that the respondents
qualified as occupants under ESTA and
that strengthened their claim for the application of ESTA in these
proceedings. I am of the
view that it is not necessary for this court
to make such a determination in these proceedings as I am of the view
that the applicant
has not satisfied the court that the application
for the eviction falls to be determined under PIE and that the
application for
an eviction of the applicants stands to be determined
in accordance with the provisions of ESTA.
[5]
[8]
The court a quo’s view of the case
did not take into account that the protection of ESTA is available
only to persons who
are ‘
occupiers
’
as defined in that Act. It follows that if the respondents are
not
such
‘
occupiers
’,
the proceedings for their eviction were correctly instituted under
the PIE Act;
aliter
,
only if they
are
‘
occupiers
’.
[9]
Whilst, for the reason that I shall explain
presently, it would not have been dispositive of the jurisdiction
issue that had been
reserved for preliminary determination, the
characterisation of the respondents as ‘
occupiers
’
is a key question in the case. The judgment of the court a quo
addressed it only in part. As the order we shall
make will
remit the application to the court a quo for determination on its
merits, it will therefore be useful, I think, to dwell
in some detail
on the characterisation question in general and, in particular, in
regard to the respect in which it has already
been dealt with in part
in the judgment a quo.
[10]
The term ‘
occupier
’
is defined as follows in s 1 of ESTA:
“
occupier
”
means a person residing on land which belongs to another person. and
who has or on 4 February 1997 or thereafter had
consent or
another right in law to do so, but excluding-
(a) [deleted];
(b) a person using or intending to use the land in
question mainly for industrial. mining, commercial or commercial
farming purposes,
but including a person who works the land himself
or herself and does not employ any person who is not a member of his
or her family;
and
(c) a person who has an income in excess of the
prescribed amount.
Section 2 of ESTA excludes certain land from the aegis of the
statute.
[11]
It is therefore evident that the combined
incidence of three elements is necessary to qualify a person as an
‘
occupier
’
within the meaning of ESTA. He or she must be (i) residing
on the land of another to which the Act pertains,
(ii) with consent
(in place as at 4 February 1997 or obtained thereafter) or by virtue
of another right in law to do so, and (iii)
must not be in receipt of
an income in excess of the prescribed amount. The judgment of
the court a quo treated only of the
first element and gave no
attention to the other requirements of the concept.
[12]
With regard to the first of the
aforementioned elements of the definition of ‘occupier’,
s 2 of ESTA qualifies
the character of the land that is subject
to ESTA. Thus, land that is in a township or encircled by a
township or townships
is generally not subject to ESTA. If the
land in question was not subject to ESTA, the respondents could not
qualify as ‘
occupiers
’
under the Act even if their occupation of it had been with consent
and their income was below the prescribed amount.
Section 2 of
ESTA therefore afforded an appropriate (though not necessarily in all
cases the most appropriate) starting point for
the enquiry. It
provides as follows in relevant part:
(1) Subject to the provisions of section 4 [which find
no application on the facts of the current matter], 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 has 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 February 1997,
in respect
only of a person who was an occupier immediately prior to such
establishment, approval, proclamation or recognition.
(2) Land in issue in any civil proceedings in terms of
this Act shall be presumed to fall within the scope of the Act unless
the
contrary is proved.
(3) …
[13]
It follows from s 2(2) of the Act that
the court a quo was obliged to accept that the land in issue fell
within the scope of
ESTA unless the appellants proved the contrary.
[14]
The essence of the appellants’ case
in this respect was that the land was in a township or encircled by a
township and that
it was not designated for agricultural purposes in
terms of any law.
[15]
The word ‘township’ is not
defined in ESTA, but the context in which it is used in s 2
makes it clear that something
more than just a developed area is
required.
[6]
A ‘township’ for the purpose of the Act means a
development or approved subdivision that has been formally recognised
as such in terms of a law.
[7]
That is the effect of the words ‘
established,
approved, proclaimed or otherwise recognised as such in terms of any
law
’. There was no evidence
before the court a quo that the land in question or that which
surrounded it qualified as a township
by virtue of formal legal
recognition as such.
[16]
The fact that it has been earmarked in
terms of the Stellenbosch Municipality’s 2017 spatial
development framework as
an area for future development does not make
the land a township, as the appellants’ counsel tried to
contend. A spatial
development framework is a conceptual guide
that sets out a local authority’s land use and development
aspirations.
It forms part of a municipality’s integrated
development plan; see s 26(e) of the
Local Government: Municipal
Systems Act 32 of 2000
. It does not confer land use rights, and
although it might identify land for township development, it is not
the medium whereby
a township is established, approved, proclaimed or
otherwise recognised as such in terms of any law.
[17]
The evidence did establish, however, that
the land was zoned for agricultural use in terms of the applicable
land use scheme.
There was no evidence as to precisely what the
implications of that zoning were under the scheme. In my
judgment, however,
the court a quo was entitled to infer from its
zoning that the land was ‘
designated
for agricultural purposes
’.
That is, after all, what zoning as ‘agricultural’
ordinarily connotes. Zoning schemes (or ‘land
use
schemes’ as they are called under the current nomenclature)
used to have legal effect in this Province by virtue of the
provisions of the Land Use Planning Ordinance 15 of 1985, and have
continued to do so latterly in terms of
s 26
of the
Spatial
Planning and Land Use Management Act 16 of 2013
. There is no
doubt that they count as ‘law’ within the meaning defined
in s 2 of the Interpretation Act
33 of 1957.
[18]
So, even if it were assumed, against the
weight of the evidence, that it is in a township or encircled by a
township, the land would
nevertheless be subject to ESTA. It
does not matter that by virtue of its character – it is small,
divided by a railway
line, and of an awkward shape – it is not
practically suitable for agricultural use. Nor is it relevant
that it has
never been used for agricultural purposes. The
determinant criterion is its
designation
for agricultural purposes in terms of a law. The submission by
the appellant’s counsel that the land had to be in actual
use
for agricultural purposes was misconceived. The word
‘designate’ in the relevant sense means to ‘officially
give a specified status’; zoning is a commonly encountered
means of giving land an officially specified purpose for land
use
objectives. The evidence that the previous owner ran a shop on
the land did not take the matter further. A shop
on
agricultural land is in any event by no means an unfamiliar
phenomenon, and I would therefore not be surprised to discover that
running a shop is a permitted use on land designated for agricultural
purposes in terms of any land use scheme.
[8]
[19]
In all the circumstances the court a quo
cannot be faulted for concluding that the land in issue was amenable
to ESTA. On
any approach the appellants did not rebut the
presumption in terms of s 2(2) of the Act.
[20]
As I have stressed, however, that
conclusion was not determinative of the question whether the
respondents were ‘
occupiers
’.
It remained to be determined whether the circumstances of the
respondents’ occupation of the land satisfied
the second and
third elements of the concept.
[21]
The respondents did not qualify as
‘
occupiers
’
unless their occupation of the land had been with the consent of the
owner of the land or the person in charge of it.
It is in this
regard that ESTA falls to be distinguished from the PIE Act. A
person who occupies land that is not in a township
or encircled by
township land nor designated for agricultural purposes, and initially
took occupation
with
the consent of the owner, can only be evicted from it subject to ESTA
if he or she satisfies the other requirements to be an ‘
occupier
’.
A person, who is not an ‘occupier’ as defined in ESTA,
and who occupies any land
without
the consent of the owner and remains there unlawfully falls to be
evicted in proceedings instituted in terms of the PIE Act.
[9]
If the respondents had consent to occupy the land, and also satisfied
the prescribed income requirement, the consent could
be withdrawn or
terminated lawfully only in accordance with s 8 of ESTA.
[10]
Section 9 of ESTA provides that an ‘
occupier
’
may be evicted only in terms of an order of court issued under the
Act, and that such an order may be made only if the ‘
occupier’s
’
right of residence has been terminated in terms of s 8.
[22]
In the current matter the appellants
alleged that the respondents never had consent to occupy the land.
On the allegations
made in the founding papers, it therefore appeared
that the claim for eviction had been competently brought under the
PIE Act,
and that the court a quo was possessed of the requisite
jurisdiction to grant the relief sought by the applicants. In
the
circumstances it is not clear why it was thought that the
jurisdictional question lent itself to convenient determination
separately
from the merits of the case. An allegation by a
respondent in eviction proceedings under the PIE Act that he or she
is an
‘
occupier
’
in terms of ESTA makes out a defence in such proceedings.
Raising the defence does not oust the court’s jurisdiction
to
determine it
as part of the PIE Act
proceedings
. On the contrary, an
inherent part of the court’s task in that situation is to
decide on the validity of the defence.
Doing so does not entail
discharging any function reserved to the Land Claims Court by ESTA.
That much was confirmed in comparable
circumstances in the binding
appeal court authority to which reference was made at the outset of
this judgment; see
Agrico Masjinerie
(Edms) Bpk v Swiers
supra, at para.
19-22.
[23]
Were the position otherwise, a respondent
would be able to defeat a claim for eviction under the PIE Act simply
by making the allegation
that he or she was an ‘
occupier
’
within the meaning of ESTA irrespective of the truth or correctness
of the assertion. If that were permissible it
would give rise
to an untenable catch-22 situation as to which court had
jurisdiction. Would the appellants then have to
institute
proceedings in the Land Claims Court despite their contention that
the respondents were in point of fact
not
‘
occupiers
’
under ESTA? Obviously not, because if they did so and it were
established that the respondents, notwithstanding their
claim to the
contrary, were indeed not ‘
occupiers
’,
the appellants would be told that they had sued in the wrong court
and under the wrong statute. On the other hand,
if the
appellants instituted a claim in terms of ESTA in the Land Claims
Court for the eviction of a person alleged not to be an
‘
occupier
’,
their claim would be excipiable if it were brought by action
proceedings, and liable to dismissal on a preliminary point
of law if
it were sought on motion. It is clear therefore that in matters
in which an eviction is sought against anyone alleged
to be an
‘unlawful occupier’ as defined in s 1 of the PIE
Act, proceedings fall to be brought in under that Act
in a court with
jurisdiction to determine such claims, and not under ESTA.
Therefore, on the basis of their case as set forth
in the founding
papers, the applicants instituted the proceedings for the relief that
they sought in the appropriate forum.
[24]
As pointed out by Heher JA in
Agrico
Masjinerie
,
[11]
‘…
the proper approach to
the ‘exclusive jurisdiction’ for which s 20(2)
[of ESTA]
provides is defined by the
terms of s 20(1), ie if a party whether as applicant or
respondent claims performance of any of
the functions of a court in
terms of ESTA
’.
[12]
The proceedings in the court a quo did not involve a claim for
eviction in terms of s 9 of ESTA, nor did it call upon
that
court to perform any of the functions that might attend the making of
an eviction order under s 9. The fact that
the
respondents’ defence to the application in terms of the PIE Act
required of the court a quo to consider and interpret
the relevant
provisions of ESTA did not exclude the court’s jurisdiction to
adjudicate the application before it; cf.
Joubert
and Others v Van Rensburg and Others
2001 (1) SA 753
(W) at para 29.3. Put differently, the
respondents’ contention that ESTA applied did not afford a
valid basis to uphold
the respondents’ contention that the
court lacked jurisdiction; on the contrary it required of the court,
in the exercise of its jurisdiction
,
to deal with the application before it to determine on the facts
whether the application of the PIE Act was excluded by virtue
of
s 29(2) of ESTA.
[25]
It would have been plain if regard were had
to the point explained in
Agrico
Masjinerie
that the framing of the
question for separate determination as one of ‘jurisdiction’
was misdirected. If any
question lent itself to separate
determination, about which I am doubtful,
[13]
it was rather whether the respondents are ‘
occupiers
’
in terms of ESTA, and a determination of that question fell squarely
within the court’s jurisdiction in the context
of the defence
raised by the respondents in proceedings instituted under the PIE
Act.
[26]
The court a quo in point of fact did
exercise jurisdiction by dismissing the application on the basis that
provisions of ESTA were
applicable. Its error lay in not
appreciating that, in order to sustain that determination, it had to
find, against the appellants’
allegation to the contrary, that
the respondents were ‘
occupiers
’
in terms of ESTA.
[27]
The learned judge dismissed the application
by reason of his perception that he lacked jurisdiction to determine
it because occupation
of the land was susceptible to protection under
ESTA. Right as he was on the susceptibility aspect, he
nevertheless should
not have decided the application without making a
determination one way or the other whether the respondents are
‘
occupiers
’
in terms of ESTA. As already explained, that would necessarily
include making a finding on the incidence of the other
elements of
the concept, including a determination whether the respondents
resided on the land with consent.
[28]
The question of consent having been a
contentious issue on the papers, whether the disputes concerning it
should be the subject
of oral evidence or cross-examination of any of
the deponents in terms of rule 6(5)(g) merited consideration on both
sides.
The indications are that, because of the manner in which
they framed the preliminary question, the parties did not give
consideration
to those matters. That is good reason by itself
to remit the matter to the court a quo to hear and determine the
outstanding
questions. It is not desirable in the circumstances
that we, sitting in an appellate role, should endeavour to decide the
merits of application as if we were sitting at first instance.
Counsel on both sides accepted this.
[29]
It does seem fair, however, as both parties
were to blame in prevailing upon the court a quo to embark on the
hearing on a wrongly
framed issue, that paragraph 2 of the order of
the court a quo to the effect that they should each bear their own
costs should
stand. Mr
Montzinger
,
for the appellants, conceded as much. He also pointed out that
the appellants did not seek a costs order in their favour
in the
appeal.
[30]
In
the result the following order is made:
1.
The
appeal is upheld.
2.
Paragraph
1 of the order of the court a quo is set aside and substituted with
an order in the following terms: ‘
The
respondents’ objection to this court’s jurisdiction to
entertain the application is disallowed
’.
3.
The
application is remitted to the court a quo for determination on the
merits of the case.
A.G. BINNS-WARD
Judge of the High Court
J.I. CLOETE
Judge of the High Court
H. SLINGERS
Judge
of the High Court
APPEARANCES
Appellants’
counsel: A. Montzinger
Appellants’ HFG Attorneys Inc
Paarl
Heyns
& Partners
Cape
Town
Respondents’
counsel: G. Papier
Respondents’ attorneys: Rahman Incorporated
Kenwyn
Robert
Charles Attorneys
Cape
Town
[1]
In paragraphs 7 and 8 of the principal answering
affidavit deposed to by the 13
th
respondent in the court a quo.
[2]
The judgment of the court a quo records that one
of the respondents was deceased (the 1
st
respondent) and two others (the 5
th
and 9
th
respondents) were in prison. The evidence suggests that the
persons cited as the 3
rd
and 4
th
respondent were in fact one person, who was also deceased.
[3]
Section 17(2) of ESTA, under the subheading
‘
Choice of court’
,
provides: ‘
If all the parties to
proceedings consent thereto, proceedings may be instituted in any
division of the High Court within whose
area of jurisdiction the
land in question is situate.
’
[4]
Sections 17(1) and 20 of ESTA. Section
17(1) provides: ‘
A party may.
subject to the provisions of sections 19 and 20, institute
proceedings in the magistrate’s court within whose
area of
jurisdiction the land in question is situate, or the Land Claims
Court
’.
Sub-secs.
20(1) and (2) of the Act provide:
‘
(1)
The Land Claims Court shall have jurisdiction in terms of this Act
throughout the Republic and shall have all the ancillary
powers
necessary or reasonably incidental to the performance of its
functions in terms of this Act, including the power—
(a) to
decide any constitutional matter in relation to this Act;
(b)
to
grant interlocutory orders. declaratory orders and interdicts;
(c)
to
review an act, omission or decision of any functionary acting or
purporting to act in terms of this Act; and
(d) to review an arbitration award in terms of the
Arbitration Act. 1965 (Act No. 42 of 1965), in so far as it deals
with any
matter that may be heard by a court in terms of this Act.
(2) Subject to the provisions of
section 17(2), the Land Claims Court shall have the powers set out
in subsection (1) to the exclusion
of any court contemplated in
section 166(c), (d) or (e) of the Constitution.
’
[5]
Paragraph 17 of the judgment of the court a quo.
[6]
The most pertinent definition of the word in the
Oxford Dictionary of English
,
Version 2.3.0 (239.5) © 2005–2019 Apple Inc., is ‘
South
African
a
new area being developed for residential or industrial use by
speculators
’.
[7]
This much is borne out, for example, by the
definition of the word in the
Spatial Planning and Land Use
Management Act 16 of 2013
as ‘
an
area of land divided into erven, and may include public places and
roads indicated as such on a general pla
n’.
(A general plan is a plan formally approved by the Surveyor-General
in terms of the
Land Survey Act, 1997
.) That is the commonly
used meaning of ‘township’ in South African statutory
parlance; cf. the excursus in
Ngwenya
and others v Grannersberger
[1999]
ZALCC 28
(22 June
1999); 1999 (4) SA 62
(LCC) at para. 9-12.
[8]
The apparent incongruity that arises from land
that is plainly not suitable for agricultural use being amenable to
ESTA, which
is directed primarily at the protection of ‘occupiers’
of agricultural or rural land (cf.
Klaase
v Van der Merwe and others
[2016] ZACC
17
(14 July
2016); 2016 (9) BCLR 1187
(CC);
2016 (6) SA 131
, at para
2), might be regarded as an unintended consequence of the
legislation, but it does not afford any basis to depart from
the
language of the enactment; cf.
Lebowa
Platinum Mines Ltd v Viljoen
[2008]
ZASCA 163
;
[2009] 2 All SA 231
(SCA);
2009 (3) SA 511
, at para 13.
[9]
The definition of ‘
unlawful
occupier
’ in s 1(xi) of the
PIE Act is as follows insofar as relevant ‘
a
person who occupies land
without
the express or tacit consent of the owner or person in charge
,
or without any other right in law to occupy such land, excluding a
person who is an occupier in terms of the
Extension of Security of
Tenure Act, 1997
, and excluding …
.’
(Underlining for emphasis.)
[10]
See
s 3(1)
of ESTA.
[11]
In para. 20.
[12]
See note 4
above for
the relevant text of
s 20.
[13]
The authorities suggest that courts should be
circumspect about allowing a separation of issues in motion
proceedings; see e.g.
Bader and Another
v Weston and Another
1967 (1) SA 134
(C), at 136E-137C and
Democratic
Alliance and Others v Acting National Director of Public
Prosecutions and
Others
2012 (3) SA
486
(SCA), at para 49.