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[2017] ZAECPEHC 2
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Nelson Mandela Bay Metropolitan Municipality v Erasmus and Others (1795/2016) [2017] ZAECPEHC 2 (17 January 2017)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 1795/2016
Date
heard:15
th
December 2016
Date
delivered: 17
th
January 2017
In
the matter between:
NELSON
MANDELA BAY METROPOLITAN
MUNICIPALITY
Applicant
vs
JAN
ERASMUS
First Respondent
CURRENT
AND FURTHER UNLAWFUL
OCCUPIERS
OF ERVEN NUMBERS 274456
TO
42389 OF PHASE 1 A AND ERVEN 41405 TO
43897
OF PHASE 1 B, 2, 3 AND 4
AT
KHAYAMNANDI DESPATCH
(“COLLOQUIALY
KNOWN AS KHAYAMNANDI”)
Further Respondents
JUDGMENT
TSHIKI
J:
[1]
The applicant herein seeks an order for the eviction of the
respondents from erf no 27456 – 41389 phase 1 A and erf 41405
–
43897, phase 1 B, 2, 3 and 4 at Khayamnandi, Despatch and to demolish
and remove all their structures that they have erected.
[2]
Further to the above, that all the respondents and future invaders be
interdicted and restrained from:
(a)
entering and being on erven number 27456 – 41389 Phase 1A and
erven 41405 –
43897 Phase 1 B, 2, 3, and 4 Khayamnandi Despatch
for the purposes of unlawfully occupying or invading that property or
erecting
structures;
(b)
erecting, completing and/or occupying any structure’s there or
extending their current
structures;
(c)
intimidating, harassing, assaulting and interfering in any way with:
(i)
the employee’s agents or contractors of the applicant;
(ii)
any person involved in or connected with law enforcement at property
and service
of process;
(d)
inciting persons to enter the property or to effect structures on the
property for the purpose
of unlawfully occupying or invading the
property or erecting, completing extending and/or occupying any
structures thereon.”
[3]
The applicant herein is the Nelson Mandela bay Municipality whose
property has been occupied by the respondents without the
consent of
the owner.
[4]
When the applicant became aware of the invasion of its property by
the respondents it filed an application for interdict and
other
relief eg eviction against the respondents. The matter was then
argued in Court on the 15
th
December 2016 when the judgment was reserved.
[5]
In this case, the respondents do not deny that they have invaded the
applicant’s property when they occupied it.
[6]
In his argument,
Mr
Rorke
for the applicant contended that the land that has been occupied by
the respondents is the land that has been,
inter
alia
,
earmarked by the applicant for allocation of houses to other
people who were earlier promised. The self-help caused
by the
respondents will surely exacerbate and also destabilise the whole
issue of the ques for land allocation which has been arranged
by the
applicant’s officials in their municipality. The
respondents had not been allocated land in that area and that
those
allocated were given land by the applicant in an orderly manner.
[7]
The owner of the property is in principle entitled to evict those who
unlawfully occupy its land, however, there are always
problems
created by the need for land which at this day and time is not
controllable in this country and especially in the applicant
municipality. Although the applicant herein, as the
owner, is entitled to evict those who unlawfully occupy its property,
however it has to also do so within the legal regime (see section
4(8) of the prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998). It means that the
provisions of the PIE Act which came into operation on the 5
th
June 1998 provide for the eviction of unlawful occupiers of land.
See
Ndlovu vs Ngcobo; Bekker v Jika
2003(1) SA
113 (SCA) in a judgment where the majority judgment held that PIE
disposed of certain common law rights relating to eviction.
For
an example, the definition of unlawful occupier in section 1 of PIE
also relates to a person who occupies land without the
express or
tacit consent of the owner in charge of such land. It means
that PIE by definition includes an unlawful occupier
also means that
PIE applies to all occupiers, irrespective of whether their
occupation of such land was previously lawful.
[8]
The effect of PIE is not to expropriate private property but to delay
or suspend the exercise of a land owner’s full proprietary
rights until a determination has been made whether it is just and
equitable to evict the unlawful occupier and under what conditions.
(See
City
of Johannesburg Metropolitan Municiplaity v Blue Moonlight Properties
39 (Pty) Ltd
2012
(2) SA 104
(CC) at 118E-H. See also
Wormald
NO & Others v Kambule
2006
(3) SA 562
(SCA) at 569G. See also
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC).
[9]
It makes sense to me that the people who are in need for land must
wait for their turn to come otherwise there will be chaos
if everyone
has to simple use self-help. It must also be noted that there
are procedures to be followed and considered before
the allocation of
land has to be made.
[10]
In my view, there is sense in what
Mr
Rorke
has submitted that lawfulness must always be encouraged and not be
countenanced. Self-help and unlawfulness must always be
discouraged at all costs.
[11]
There will always be those who cannot defend themselves eg children
and women. The Court in that regard has to protect
them at all
costs for obvious reasons. This is so because they are
the vulnerable citizens of our society.
[12]
I also agree with
Mr
Rorke
for the applicant by discouraging the use of self-help. This is
so because it is only the applicant municipality the owner
whose
interests have to be paramount in whatever decision is taken by the
Court. I say this because the applicant represents
the
interests of all the citizens of the applicant municipality who are
staying within its municipality.
[13]
In my view, I do not agree with the people who simply go and grab the
land when it is easy for them to approach the applicant
municipality
and join list of people who have already applied for sites or land.
[14]
Mr
Naidu
for the respondents has submitted that the scourge of homelessness is
known in our society. In his view, the legal
obligation
is not with the respondents but with the applicant. Be that as
it may,
Mr
Naidu
has also argued sensibly when he submitted that it is not correct for
the respondents to resort to self-help in occupying the land
as
they have done so in this case, and they surely did not make things
easy for the applicant.
[15]
In my view, if the applicant wants to have orderly allocation of land
in the applicant municipality they must encourage the
citizens of
their municipality for the allocation of the land and or houses.
[16]
The respondents and those who have occupied the land without
approaching the applicant municipality cannot be allocated the
land
before those who have already applied and allocated land before, the
land in issue in this case is for those who have applied.
In my
view, it must just be the question of first come first allocation.
[17]
Therefore, the order I grant is as follows:
[17.1] The
respondents are ordered to vacate the land situate in Khayamnandi
Despatch known as erf no 27456-41389 phase 1
A and erven 41405-43897
Phase 1 B, 2, 3 and 4 at Khayamnandi, Despatch and to demolish and
remove all their structures that they
have erected. The
respondents are given a period of three months for doing so which
must be calculated ten days from the
date of delivery of this
judgment. However, if the time allocated by the Court is not
sufficient, the respondents can approach
the Court for an extension
of time.
[17.2]
The respondents are ordered to pay costs of this application.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant
: Adv Rorke
Instructed
by
: Karsans Inc
Uitenhage
Ref:
K Karsan/bg file no N2516
Tel:
041- 991 1320
For
the respondents
: Mr Naidu
Instructed
by
: The Legal Aid Board
Port
Elizabeth
Ref:
HCU/ V Naidu
Tel:
041 – 408 2800