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[2010] ZAGPPHC 262
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Golden Thread Ltd v People who intend invading portion R25 of the Farm Mooiplaats 355/JR, Tshwane, Gauteng and Others (3492/2010) [2010] ZAGPPHC 262 (2 March 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 3492/2010
DATE:
2010-03-02
In
the matter between:
GOLDEN
THREAD
LIMITED
.......................................................................................
Applicant
and
PEOPLE
WHO INTEND INVADING
PORTION
R25 OF FARM MOOIPLAATS 355JR
TSHWANE,
GAUTENG AND 2
OTHERS
................................................................
Respondent
JUDGMENT
RABIE
J: This is an application for the eviction of persons who have
invaded the property of the applicant known as Portion R25
of the
farm Mooiplaats in the district of Tshwane in the Gauteng province
and for the confirmation of an interim order preventing
others from
also invading the property in order to reside there.
The
applicant is the owner of Portion R25. it falls within the
jurisdiction of the third respondent, the City of Tshwane
Metropolitan
Municipality. The property is vacant land of some 50
hectares in extent. The applicant had earlier attempted to develop
this piece
of land but was unsuccessful as the area was found to be
dolomitic and unstable and not fit for residential purposes.
For
background purposes, the following salient aspects may be briefly
referred to. The applicant was earlier also the owner of Portion
R18
which lies directly to the east of Portion 25. Probably due to
urbanisation and over population of formal residential areas,
people
moved onto Portion R18.
In
2004 Portion R18 was expropriated from the applicant and the informal
settlement became known as Itereleng. Itereleng became
over populated
and its inhabitants and probably others from elsewhere started to
move onto the area immediately to the east thereof,
namely Portion
R15.
Portion
R15 belongs to a company PPC Aggregate Quarries (Pty) Limited. This
invasion of the land of PPC Aggregate Quarries (Pty)
Limited occurred
late in 2009 and resulted in the company successfully obtaining an
eviction order during December 2009 to evict
the unlawful occupiers.
The
evictions sparked off violent clashes which even affected the nearby
suburb of Laudium, which is an old and settled suburb of
Tshwane. The
mayor of Tshwane visited the area and made promises to the people,
inter alia, that land would be made available close
by.
Nothing
came of these and other promises but the inhabitants apparently saw
this as a licence to invade the land of the applicant
which lies, as
I have said, also next to Itereleng, but on the other side from
Portion R15, namely to the east thereof.
This
land invasion commenced in December 2009. According to the
respondents, that is the unlawful occupiers and those intending
to
move onto Portion R25, people started to move onto the land already
in August 2009. According to the aerial photographs of 15
September
2009 and even later photographs of the area, however, this is not the
case. From these photographs no shacks can be discerned
on Portion
R25.
By
the middle of December 2009, the applicant noticed that some 30
shacks had sprung up on Portion R25 and people were still erecting
structures. All attempts to get hold of responsible employees
especially in the Housing Department of the third respondent, were
unsuccessful. Around 11 January 2010 the shacks on Portion R25 were
demolished. The applicant had no hand in this and it appears
to have
been done by the contractor who was assisting PPC Aggregate Quarries
(Pty) Limited enforcing the eviction order they had
obtained.
However,
from 15 January 2010 the applicant saw that shacks were again being
erected on Portion R25. The applicant approached the
third respondent
but was advised that the municipality would not protect the applicant
and that the applicant must appoint its
own attorneys. This the
applicant did.
On
21 January 2010, the applicant obtained two urgent orders from this
court. The one was for an interim interdict to prevent persons
from
invading Portion R25 and the other was to obtain permission from the
court to serve the eviction application and relevant
notice in terms
of Act 19/1998 on those who have already unlawfully occupied Portion
R25.
The
return day for the interim interdict was 9 February 2010. On that
day, so I was informed, the court refused an application for
a
postponement by the respondents, but the applicant nevertheless gave
the respondents additional time to respond to the application.
This
court thus had before it the return day of the one application as
well as the eviction application in respect of the unlawful
occupiers.
The
respondent's case is that at present there are at least between 300
to 400 shacks already on this property. According to the
respondents
an eviction order would be futile since the unlawful occupants would
then simply move to the property of another private
owner. They say
that the occupants from itereleng, which is over crowded and where
occupants suffer at the hands of so-called land
owners who rent
property out at exorbitant prices, have moved onto Portion R25.
Services
are almost non-existent in Itereleng. The living conditions are
extremely poor. Some occupants of Portion R25 also came
from other
areas. Many are in all probability unlawful immigrants. According to
the respondents most of the. occupants of Portion
R25 are young
people who cannot afford housing.
The
respondents expressed their sympathy for the applicant's property
rights and the fact that it is suffering serious damage and
loss but
say that the only practical remedy lies in the third respondent, the
municipality, expropriating the land and to allow
the people to
settle informally on this piece of land.
The
main thrust of the respondent's case was in fact directed at the
third respondent, who has not done anything to address the
problems
of the people of the area and who, according to the respondents, have
just made empty promises. The respondents noted
that they require
time to bring an action against the third respondent as well as the
Gauteng Housing Authorities to enforce their
basic minimum housing
rights.
I
have already noted during the hearing that the third respondent is
conspicuous in its absence. It is a very sad state of affairs,
especially as the third respondent is the one body which is
constitutionally bound to address the problem which exists. They have
not only failed dismally in that respect and has done so for many
years, but they have not even attended this hearing to assist
the
court to come to a decision. The third respondent merely briefed
counsel on a watching brief.
Further
regarding the facts I can add that the evidence of the applicant
regarding the number of people and shacks on Portion R25
is to be
preferred above that alleged by the respondents. Aerial and other
photographs support the applicant's version and also
accords with the
respondents own version that people were evicted from Portion R25
after the eviction obtained in respect of Portion
R15.
During
January 2010, there were about 30 shacks on Portion R25. If there
were shacks in September, it would have been a very small
number. The
interdict obtained by the applicant in January did 10 not help much
and new occupants moved onto the land despite the
order and the
publication thereof.
At
present the number has grown to around 170 shacks. New shacks are
still being erected with new people joining the ranks of the
other
unlawful occupants. It seems clear and this was not disputed, that
within a short space of time the land of the applicant
would be
swamped by unlawful occupants.
There
can be no doubt that no case has been made out why the interdict
preventing anyone from entering upon the land and to settle
there,
should not be confirmed. A case may very well be made 20 out that the
third respondent is under some duty in respect of
the people of
itereleng and others who want to occupy Portion R25. Something which,
or the extent whereof, is not for this court
to decide at this point,
but no such duty exists for the applicant.
The
right of access to adequate housing is not one enforceable at common
law or in terms of the constitution against an individual
land owner
and in no legislation has the state transferred this obligation to
such owner. See President of the Republic of South
Africa and Other v
Modderklip Boerdery (Pty) Limited (Agri SA and Legal Resources
Centre, amici curiae)
2004 (6) SA 40
(SCA)). I should add that no
such duty was suggested on behalf of any of the respondents in the
present application.
Regarding
the position of those who had already invaded Portion R25, the same
principle as aforesaid applies, except that the provisions
of the
Prevention of Illegal Eviction from the Unlawful Occupation of Land
Act 19/1998 ("the Act") have to be applied
and considered.
There can be no doubt that the respondents who have invaded Portion'
R25 are unlawful occupiers in terms of the
Act. Further that they
have been on Portion R25 for less than six months. The procedural
prerequisites for an application to evict
the unlawful occupiers have
also been complied with. What remains is for this court to consider
section 4(6) of the Act. It provides
as follows: "4(6) If an
unlawful occupier has occupied the land in question for less than six
months at the time when the
proceedings are initiated, a court may
grant an order for eviction if it is of the opinion that it is just
and equitable to do
so, after considering all the relevant
circumstances,
including the rights and needs of the elderly, children, disabled
persons and households headed by women." This
court has to
consider whether it would be just and equitable to evict the
respondents and in this process consider a!! the relevant
circumstances. I should add, as I have indicated above, that there
does not appear to be any elderly persons, children, disabled
persons
or households headed by women, on Portion R25. In the answering
affidavit filed on behalf of the respondents, no such allegation
or
even a suggestion to that effect, was made.
In
fact, it was stated that young people had moved onto the property. It
was also not suggested during argument that the rights
and needs of
the elderly, children, disabled persons and households headed by
women, were relevant considerations.
Section
4(8) and (9) then provide as follows: "4(8) If the court is
satisfied that all the requirements of this section have
been
complied with and that no valid defence has been raised by the
unlawful occupier, it must grant an order for the eviction
of the
unlawful occupier, and determine -(a) a just and equitable date on
which the unlawful occupier must vacate the land under
the
circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a). (9) In determining a just and equitable date
contemplated in (8), the court must have regard to all relevant
factors, including the period the unlawful occupier and his or her
family have resided on the land in question." As to the
question
whether it would be just and equitable to evict the respondents, I
consider that they have moved onto the property because
an empty
piece of land to live on, would be better than having to live in the
over populated area of Itereleng.
I
must take note of the conditions in Itereleng. Unfortunately the
respondents who have come from other places have not informed
the
court of such. It was submitted on behalf of the respondents that
there is nowhere for the respondents to go and that they
would simply
invade the next piece of open land.
It
was submitted that the applicant as owner should accept its fate and
sue the state for rent and/or damages and/or for expropriation
of the
land in question. The rights of the applicant were not disputed by
the respondents. The damage and in fact the complete
loss of this
land was also not disputed.
The
fact that most of the present occupiers have done so in contempt of a
court order was also common cause. It was also not in
dispute that
the occupiers would strengthen their position viz a viz the applicant
as time goes by. It was not disputed that the
respondents have no
defence in common law.
It
was submitted, however, as I have indicated, that it is
constitutionally untenable for the owner of private land to object to
a land invasion if the unlawful occupiers have nowhere else to go.
This was in reality the only defence offered by the respondents.
In
the present matter the applicant realised that if it allowed the
situation to carry on, the land would soon be filled to capacity
and
after some time the occupants might start to establish rights which
would make it very difficult and even impossible to protect
its
property. In casu the applicant acted immediately through the
judicial system. It obtained the relevant relief swiftly and
as soon
as was possible. Despite that, the occupants streamed onto the land.
These
facts are, in my view, relevant factors to consider. The fact that
the respondents have been on the land in question for a
relatively
short period of time, is also a relevant factor which I have to
consider. I also consider relevant that there is no
infrastructure or
even basic services on the property. There is no water, no
electricity, sewerage or any other services. The land
is in any event
dolomitic and unstable and not fit for residential purposes as I have
indicated above.
It
can therefore, in any event, not serve as a permanent solution to the
housing needs of the respondents. The notion that the third
respondent would in future expropriate the area for residential
purposes, therefore, does not seem to be a realistic option.
The
applicant was and is entitled to protect its property. It does not
carry the burden to supply the present and any would-be land
invaders
with accommodation. The applicant acted with all due speed to protect
its rights by lawful means. The applicant was entitled
to do that.
The court must be able to protect its citizens, in this case the
applicant, from the unlawful destruction of its property
by others
who have no right to do so.
To
dismiss the applicant's applications would amount to a stamp of
approval by this court on unlawful land invasions despite the
circumstances. The respondents know that they have acted unlawfully.
That was never in dispute. In fact, they respected the applicant's
property for many years while they remained on the area known as
Itereleng. They also did not move onto Portion R25 late in 2009
but
moved onto Portion R15. Only when they were evicted from that
portion, did they decide to move onto the property of the applicant.
There
is another aspect which I consider relevant. The area directly south
of itereleng, which is also part of Portion 18, belongs
to the third
respondent. According to the applicant, the persons who want to move
anywhere or want to come and live in the area,
can move onto that
part to the south of itereleng. They would then still be on land
belonging to the third respondent.
It
is in any event an area which appears to be much larger, according to
the aerial photographs, than Portion R25. It was suggested
that the
area was probably not chosen by the unlawful occupants because it
lies further away from the tarred road bordering Portion
R18 to the
north and is therefore less accessible. Portion R25, which belongs to
the applicant, also borders the tarred road and
is thus closer to the
road than the southern part of Portion R18.
I
am not suggesting that the respondents again take the law into their
own hands and to invade that portion of land, but what I
do say is
that if the third respondent would take its responsibilities
seriously, it might find real solutions to the desperate
plight of
its citizens. However, on the facts of this case, it is not incumbent
on this court to necessarily consider alternative
accommodation and
the third respondent has refused to assist this court in possibly
making a more positive order.
As
such I have to adjudicate the dispute between the parties within the
narrow facts before me and according to what common sense
dictates. I
have taken note, however, of the aforesaid facts and it would appear
that there might still be some light in the tunnel
for the
respondents.
In
my view and having regard to all the circumstances, I find that it
would be just and equitable to evict the respondents and that
no
valid defence has been raised by the respondents. In the result the
respondents should be evicted.
The
only aspect which remains is the determination of a just and
equitable date on which the unlawful occupiers must vacate Portion
R25 and the date on which an eviction order may be carried out if
they have not vacated the land.
In
determining a just and equitable date in respect of the aforesaid, I
must have regard to all relevant factors, including the
period the
respondents and their families, where applicable, have resided on the
land. In my view the respondents who have occupied
Portion R25 have
been there for a relatively short period of time. In fact, the bulk
of the occupants only moved onto the land
after the court order in
January of this year, approximately a month ago, and also in defiance
thereof.
In
my view a period of four weeks should be more than ample time to
afford the occupants the opportunity to vacate the property
and that
the eviction order may be carried out on the day following such
period in respect of those who have not vacated the land.
In
the result the following order is made:
ORDER
1.
The rule nisi granted on 21 January 2010 is confirmed.
2.
The persons in occupation of Portion R25 of the Farm Mooiplaats,
JR/355, Tshwane Gauteng (Portion R25) are hereby evicted from
Portion
R25 and shall vacate Portion R25 by not later than 29 March 201 0.
3.
The persons in occupation of Portion R25 are hereby ordered to
demolish and remove their structures and/or shacks from Portion
R25
by not later than 29 March 2010.
4.
In the event of any persons in occupation of Portion R25 failing to
comply with the order in paragraphs 2 and 3 above, the sheriff
of
this court is hereby authorised and ordered to evict any and all
occupiers on Portion R25 from Portion R25, from 1 April 2010.
5.
The sheriff of this court Is hereby authorised and ordered to
demolish and remove any and all structures and/or shacks mentioned
in
paragraph 3 above from Portion R25 from 1 April 2010.
6.
The sheriff of this court is hereby authorised and ordered to request
any person including members of the Tshwane Metro Police
and members
of the South African Police Services to assist him in the eviction,
demolition or removal of the occupiers of Portion
R25 and/or their
structures and/or their shacks from Portion R25.
7.
The first and second respondents are ordered jointly and severally to
pay the applicant's costs of suit.