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[2024] ZAECMHC 8
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Norman Ndongeni v Thembisa Ndongeni and 3 Others (CA28/23) [2024] ZAECMHC 8 (30 January 2024)
SAFLII
Note:
Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Not Reportable
CA: 28/2023
In
the matter between:
NORMAN
NDONGENI
APPELLANT
and
THEMBISA
NDONGENI
1
st
RESPONDENT
ALL
UNLAWFUL OCCUPIERS OF RESIDENTIAL
ALLOTMENT
NO.1[…]A, NDONGENI RESIDENCE,
LUBHACWENI
LOCATION,
MOUNT
FRERE
2
nd
RESPONDENT
DEPARTMENT
OF RURAL DEVELOPMENT
AND
AGRARIAN REFORM
3
rd
RESPONDENT
UMZIMVUBU
LOCAL MUNICIPALITY
4
th
RESPONDENT
Neutral
citation:
Norman
Ndongeni v Thembisa Ndongeni and 3 Others
(Case
no CA28/23)
Coram:
NHLANGULELA AJP, MAJIKI J and TILANA-MABECE AJ
Heard
:
16 October 2023
Delivered
:
30 January 2024
Summary:
Appeal against orders dismissing
the application for eviction and granting a counter-application
against eviction – appellant's
title derived from a permission
to occupy –– non-joinder of the maker of the permission
to occupy strengthening appellant’s
right to evict first
respondent - appeal succeeds - first respondent to vacate the
property within 90 days.
ORDER
On
appeal from:
the judgment of Pakati J
sitting as a court of first instance.
1.
The appeal is upheld with costs.
2.
The order of the high court is set aside and replaced by the
following order:
2.1 The main
application is granted.
2.2 The counter
application is dismissed
2.3
The
first and second respondents are
evicted from the property known as Allotment No.1[…]A Ndongeni
Residents, Elubhacweni Location,
Mount Frere, Eastern Cape (the
property).
2.2
The
first and second
respondents are ordered to vacate the property within 90 days from
the date of service of this order upon them.
2.3 If
the first and second respondents have not vacated the property by
the eviction date, the Sheriff
, or his/her Agent, is hereby
authorized to evict the first and second respondents, including all
persons occupying the property
through them.
2.4
The first and second respondents are
interdicted and restrained from entering the property at any time
after they have vacated or
been evicted from the property.
2.5
The
first
respondent to pay the costs of the main and counter- applications.
JUDGMENT
Nhlangulela AJP
(Majiki J concurring)
Introduction:
[1]
The appellant is Norman Ndongeni, an adult male. The first
respondent is Thembisa Ndongeni, an
adult female. They are siblings.
Both reside at Ndongeni Residential Allotment No. 1[…]A,
Lubhacweni Location, Mount
Frere (the property). The second
respondents are unlawful occupiers of the homestead whose personal
particulars are to the
appellant unknown. The third respondent
is the Department of Rural Development and Agrarian Reform, an organ
of state established
in terms of s 239 of the Constitution. It
has an office at Main Street, Mt Frere. The fourth respondent
is Umzimvubu
Local Municipality in whose jurisdiction the property is
situated.
[2]
The appellant brought eviction proceedings against the first
respondent. He relied on the right
to occupy the property
,
contending that the first and second
respondents were in unlawful occupation of the property, and that
as
the holder of permission to occupy (the PTO) that was issued to him
on 5 August 2009 he was entitled
to
evict the respondents from it. In resisting the eviction, the
first respondent brought a counter application seeking a
declarator
that the PTO was unlawful and fell to be set aside by the court.
[3] The gravamen of
the first respondent’s counter-application was that the
appellant had no right to an order of eviction
because, firstly, the
property is the common home which both of them are entitled to
occupy. Secondly, the first respondent
contended that the PTO
was invalid to the extent that it was obtained without her knowledge
and consent.
[4] The court
a
quo
dismissed the application for eviction, granted the counter-
application and ordered the appellant to pay costs incurred in both
applications. The appellant appeals the judgment and the
orders. The appeal to this Court is with the leave of the
court
a quo.
The background facts:
[5]
The facts that gave rise to this appeal are the following: The
property had previously been registered
under the name of the father
of the appellant and first respondent. Both of their parents
are deceased. The mother
was the latest to die in 2015.
The appellant was appointed as an Executor of the Estate of their
mother on 5 August 2021.
The property was never
registered into the name of the mother. The property had already been
registered into the name
of the appellant at the time of death of his
mother.
It was so registered by the
National Commissioner in terms of
s
4(1)
(ii)
of the Location Regulations:
Unsurveyed
Districts: Transkei Territories Proclamation No. 26 of 1936
(the Proclamation), which reads:
‘
Permission
to Occupy Homesteads and Arable Allotments
4
(1) The
Native Commissioner
may
grant permission –
…
(ii)
to any Native domiciled in the district to occupy a homestead or
arable allotment for domestic purposes
and agricultural purposes
respectively.’
[6] The appellant
served a notice of eviction upon the first respondent in terms of s
4(2) of the Prevention of Illegal Evictions
and the Unlawful
Occupation of Land Act 19 of 1998 (PIE). A court order that
eviction proceedings may be brought was obtained
on 23 November
2021. The papers on the application for eviction were also
served. Only the first respondent opposed
the application by
filing an answering affidavit and a counter-application.
However, the first respondent did not serve the
counter-application
upon the third respondent. This omission was not explained by the
first respondent. The appellant filed
a replying affidavit in
which he addressed both the main application and
counter-application. The second respondent did not
oppose the
main application.
In the court
a quo
:
[7]
In determining the two applications the Court
a quo
found that
the declaratory relief sought by the first respondent did not affect
the interest of the third respondent because the
property was a
common home that the parents had, upon death, left as an intestate
asset which could only be validly transferred
to the appellant upon
the winding-up of the deceased’s estate. On the issue of
service of the papers, the court
a quo
found that the issue of
non-service of the papers was irrelevant as the declaratory relief
sought did not affect the interest of
the third respondent. It
held a view that in the absence of an explanation as to how the
applicant became the owner or exercises
control over the property,
his contention that he had a valid title to the property in terms of
the PTO was untenable and, consequently,
the eviction of the first
respondent was not competent.
In this Court:
[8] Three issues
must be decided. The first is whether the court
a quo
erred in finding that the registration of the PTO in the name of the
appellant is irrelevant to the relief sought by the first
respondent
in her counter application. The second issue is whether it was
correct for the court a quo to find that the service
of the papers of
the counter-application upon the third respondent was not necessary.
The third issue is whether the main application
should have been
dismissed and the counter-application granted.
[9]
It was submitted on behalf of the appellant that the third respondent
has a direct and substantial interest on the issue
of validity, or
otherwise, of the PTO
[1]
.
In terms of s 2 of the Proclamation, the National Commissioner is
mandated to keep a register of all permissions to
occupy land granted
by him under s 4 (1) (ii). Further, the property did not revert to
the commonage after the death of the father
as envisaged in s 9 of
the Proclamation.
[2]
Neither was
it registered into the name of the mother during her lifetime.
Instead, the appellant is the lawful holder of the allotment
of the
property, and the allotment of the property to him is valid in law
because it has not been canceled by the National Commissioner.
For
those reasons, it was argued on behalf of the appellant that the
court a quo ought to have found that the determination of
validity of
the PTO without affording a hearing to the third respondent was fatal
to the counter- application. It was submitted
further that the PTO
gave the appellant an unassailable right to remove an unlawful
occupier from the property. On the other hand,
the thrust of the
submissions advanced on behalf of the first respondent is that the
orders granted by the court
a
quo,
and the reasons given for them, are good enough for the appeal to be
dismissed. In the main, counsel for the first respondent pins
his
faith on the submission that the appellant, as the Executor in the
interstate estate of his mother, had a legal duty to first
include
the property in the winding-up process for it to be allocated to the
beneficiaries, including the first respondent, before
arrogating
rights of exclusive possession of the property to himself.
[10]
It is trite law that in terms of s 4 (1) (ii) of the Proclamation the
National the power to decide whether, or
not, to grant the PTO to the
appellant vested in the National Commissioner. This statement accords
with the literal and grammatical
meaning of the words used in s 4 (1)
(ii)
[3]
. On the evidence, the
PTO in respect of the property was granted by the Commissioner in the
exercise of his discretionary power
in favour of the appellant. That
PTO has not been canceled.
[11]
It was submitted on behalf of the appellant, correctly so, that with
effect from 1994 the third respondent subsumed
the statutory power
and control of allotments by the National Commissioner as a national
department, as is defined in s 1 of the
Public Service Act 10 of
1994, read with Column 1 of Schedule 2 of that Act. As a national
department of the government, the third
respondent is an organ of the
State established in terms of s 239 of the Constitution that is
charged with the administrative function
to grant, refuse and cancel
permits to occupy unregistered state land lying in the commonage
areas. Since it alone can issue
and cancel a PTO, the first
respondent had an obligation to seek a relief for a review of the
decision of the third respondent
and setting aside of the PTO,
utilising the provisions of s 6 of Promotion of Administrative
Justice
Act 3 of 2000 (PAJA). She did not invoke the provisions of s 6 of
PAJA. Consequently, in terms of the administrative law
principles as
set out in the judgment in
Oudekraal
Estates
(Pty) Ltd v City of Cape Town and Others
[4]
an administrative decision made by the third respondent to issue the
PTO remains extant until it has been set aside by a court
of law.
[12] It seems to me
that the third respondent has a legal interest in the relief sought
by the first respondent that the PTO
must be declared unlawful and
set aside. It matters not that the basis of the challenge is that the
property was a common home.
What matters is the fact that the
administrative decision of the third respondent is sought to be
impugned. To that extent, the
first respondent needed to serve the
counter-claim upon the third respondent. Further, the first
respondent’s failure to
invoke PAJA review to challenge the
administrative decision of the third respondent for issuing the PTO
in favour of the appellant
is fatal to the counter-application. For
as long as the decision to grant him the PTO has not been set aside
by a court of law,
it shall remain extant. It is palpably clear that
the first respondent’s counter-application was flawed, both
procedurally
and in substance. The court a
quo
ought to have
found its way clear to dismiss the counter-application with costs.
[13] The main
application should not have been dismissed. There is no evidence that
the property was allotted to the
mother of the appellant and first
respondent at any stage. The appellant is the sole bearer of
occupational rights in terms of
the PTO. The PTO was not issued under
the condition that the occupational rights of the property be
extended to the siblings of
the appellant.
[14] On the
foregoing, the first respondent’s claim that the property is
the common home and, by extension, the
PTO is invalid as the
appellant obtained it without her consent does not trump the
appellant’s rights to occupy the property
exclusively from her.
That being the case, the court
a quo
erred in finding that the
appellant did not have a right to evict the first respondent even if
he did so within the terms of the
law.
Eviction:
[15]
The
statements made by Lowe J (with Mlomzale AJ concurring) in
Ndabankulu
v Ndabankulu
[5]
para
[13] depict the current state of the law. The following was said:
‘
Erasmus
Superior
Court Practice,
Eviction under PIE
sets out the purpose and effect of PIE relevant to this matter as
follows:
“
The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (‘PIE’), which came into operation
on 5
June 1998, provides for procedures for the eviction of unlawful
occupiers of land. In
Ndlovu v
Ngcobo; Bekker and Bosch v Jika
[. ]
the
Supreme Court of Appeal, in a majority judgment, held that PIE
disposed of certain common-law rights relating to eviction.
The
majority judgment can be summarized as follows:
(a)
PIE
has its roots,
inter
alia
, in s
26(3) of the Constitution of the Republic of South Africa, 1996.
(b)
The
definition of an unlawful occupier in s 1 of PIE relates to a person
who
occupies
land
without the express or tacit consent of the owner or person in charge
of such land. In its ordinary meaning the
definition of an
unlawful occupier means that PIE applies to all unlawful occupiers,
irrespective of whether their occupation of
such land was previously
lawful…’
[16]
Although the first respondent is an unlawful occupier
[6]
of the property, her eviction remains a constitutional issue that is
regulated in terms of s 26(3) of the Constitution Act, 1996,
which
provides as follows:
“
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.”
Section
4(7) of PIE
[7]
gives effect to
the provisions of s 26(3) as it was stated in
Malan
v City of Cape Town
[8]
para 83 in the following terms:
“
PIE
in accordance with section 26(3) of the Constitution, requires a
court to balance the opposing interests of landowners and occupiers.
What is just and equitable therefore bears consideration in respect
of both parties. Factors including fairness, social values
and
the implications of the eviction have to be considered.”
[17]
In this case, the common cause facts are that the fourth respondent
does not have an alternative accommodation
to offer. In any event,
the first respondent is not a poor citizen, and she is not in dire
need of housing. She has her residential
property for which she
holds a PTO that was issued to her by the third respondent on 05
August 2009.
In
addition, an alternative accommodation ready for her to occupy was
offered by the appellant. She flatly refused that offer.
In
Grobler
v Phillips and Others
[9]
factors taken into account towards the decision to evict an elderly
Mrs Phillips (aged 85 years) and her physically disabled son
from Mr
Grobler’s residential property were,
inter
alia
,
that since an alternative accommodation would be provided by Mr
Grobler at his cost, the personal preference expressed by Mrs
Phillips to remain into the property from which she was sought to be
evicted was not a relevant consideration under s 4(7) of PIE.
The Constitutional Court stated at para 36 as follows:
“
The
question whether the constitutional rights of the unlawful occupier
are affected by the eviction is one of the relevant considerations,
but the wishes or personal preferences of the unlawful occupier are
not relevant. An unlawful occupier such as Mrs Phillips does
not have
a right to refuse to be evicted on the basis that she prefers or
wishes to remain in the property that she is occupying
unlawfully. In
terms of section 26 of the Constitution, everyone has the right to
have access to adequate housing. The Constitution
does not give
Mrs Phillips the right to choose exactly where in Somerset West
she wants to live.”
[18] As in
Grobler,
it seems to me that the first respondent’s
reason for rejecting the offer of an alternative accommodation had to
do with
her preference to remain in the appellant’s property
which she regards as a common home. In the absence of
prejudice
to her, it will be just and equitable to evict the first
respondent from the appellant’s property. This Court was
advised
that a 90 days’ notice of eviction will be adequate in
the event of the appeal being dismissed.
[19]
I have read the dissenting judgment penned
by Tilana-Mabece AJ. I have noted that the central issue for the
dissent is that the
majority judgment overlooked the fact that the
PTO trenches on “old order legislation” (the Black
Administration Act
and the regulations made thereunder), and that its
continued operation is inconsistent with the Constitution. However,
this constitutional
issue does not arise in this appeal. It also did
not arise in the
court a quo
.
The central issue is compliance with s 6 of PAJA, which the dissent
acknowledges in para. 44 as the applicable law to all reviews.
It
states further that not only did the first respondent’s
counterclaim not plead any of the grounds of review that are listed
in s 6 of PAJA, but the first respondent failed to serve papers of
her counterclaim upon the third respondent.
[20]
Significantly, at paras. 38 and 39 of the minority judgment the legal
principles are accepted that a PTO is ‘only a perpetual
right
to occupy’ that terminates upon the death of the holder
thereof, at which point the land reverts to the tribal authority
for
a new PTO to be issued to another applicant. In light of these
principles, it escapes me how it can be said that the appellant
‘lacks
locus standi’
to exercise his possessory
rights to evict the first respondent from the property. To that
extent, I remain convinced that the
majority judgment is correct.
[21]
Consequently, the appeal must succeed in respect of the main and
counter-applications with costs.
[22] The
following order shall issue:
1.
The appeal is upheld with costs.
2.
The order of the high court is set aside and replaced by the
following order:
2.1 The main
application is granted.
2.2 The counter
application is dismissed
2.3
The
first and second respondents are
evicted from the property known as Allotment No.1[…]A Ndongeni
Residents, Elubhacweni Location,
Mount Frere, Eastern Cape (the
property).
2.2
The
first and second
respondents are ordered to vacate the property within 90 days from
the date of service of this order upon them.
2.3 If
the first and second respondents have not vacated the property by
the eviction date, the Sheriff
, or his/her Agent, is hereby
authorized to evict the first and second respondents, including all
persons occupying the property
through them.
2.6
The first and second respondents are
interdicted and restrained from entering the property at any time
after they have vacated or
been evicted from the property.
2.7
The
first
respondent to pay the costs of the main and counter- applications.
Z. M. NHLANGULELA
ACTING JUDGE PRESIDENT
OF THE HIGH COURT
I concur:
B. MAJIKI
JUDGE OF THE HIGH
COURT
Tilana-Mabece AJ
(Dissenting)
[23]
I have had the benefit of reading the majority judgment penned by
Nhlangulela AJP.
Regrettably, I do
not agree with the findings and the order therein for the reasons
that follow.
[24]
Central to this case is legislation which, in terms of
Schedule 6 of the Constitution is referred to as the “old
order
legislation”. Such legislation is defined as legislation
enacted before the Constitution of the Republic of South Africa
Act
200 of 1993. It is an undeniable fact that under the apartheid regime
a range of legal instruments were introduced relating
to insecure
forms of land tenure for the black communities. One such instrument
was a Permission To Occupy (PTO).
[25]
It is manifest in the main judgment that the applicant’s
“right” to evict the first respondent
is pivoted on the
PTO issued to him during 2009. It is elaborately set out in the main
judgment that the authority to issue the
PTO is derived from the
Location Regulations:
Unsurveyed
Districts: Transkei Territories Proclamation No. 26 of 1936
(the
Proclamation). This proclamation forms part of the old order
legislation and is at odds with the values, ethos and the spirit
of
the Constitution. To this end, the description accorded by the
Constitutional court to the Black Administration Act 38 of 1927
is of
equal application to the proclamation. Sachs J referred to this
act as:
“
an
egregious apartheid law which anachronistically has survived our
transition to a non-racial democracy”.
[26]
He went on to say that it was:
“
part
of a demeaning and racist system, as obnoxious and as not befitting a
democratic society based on human dignity, equality and
freedom.”
[10]
[27]
Seemingly, the “old order legislation” refuses to die and
it keeps rearing its ugly head when we least
expect. One of the
judgments where this is evident is the judgment of the Constitutional
Court
relating
to a challenge to a provision that excluded certain sections of the
Upgrading of Land Tenure Rights Act
[11]
from the rest of the Act even though its operation was extended to
the entire country where
Jafta
J echoed the following:
“
In
the former homelands access to land and occupation of land are still
regulated by legislation that was passed by Parliament and
other
legislative bodies of the apartheid era. Many people continue to be
denied secure land tenure rights. They are not afforded
rights better
than occupational rights in land which may be terminated in terms of
the old older laws. As noted here the continuing
operation of laws
that deny black people secure rights in land is inconsistent with the
Constitution, our supreme law. The dignity
of the affected people is
persistently impaired by the enforcement of those laws. The victims
of the unfair differentiation brought
about by these laws have become
second class citizens to whom the fruits of the Constitution remain a
dream, deliberately kept
out of their reach.”
[12]
[28]
The fact that a court requested to enforce a “right” from
the old order legislation, especially the
package of land
legislation, needs to exercise caution, cannot be over emphasised.
Even when the constitutionality of the old order
legislation is not
at issue, the court still needs to be vigilant in its approach.
[29]
With that background, I now turn to consider the merits of the case.
[30]
The appellant alleges that he
is the rightful owner of the property. He asserts that his
right as the registered owner of
the property entitles him to evict
the first respondent. These assertions are based on the P
ermission
to Occupy (“PTO”)
.
[31]
It is settled in our law that p
roof
of ownership of an immovable property is a Title Deed. In
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[13]
the
court held as follows:
“
To
summarize: The appellant, having bolstered its case on appeal by the
introduction of the original title deed, has at last succeeded
in
establishing its ownership of the property concerned.”
[32]
Importantly, in
Herbert
N.O. and Others v Senqu Municipality and Others
[14]
the
court held that
a
PTO
does not confer ownership of immovable property.
Notwithstanding, t
he
main judgment heavily relies on the PTO as establishing the
appellant’s right to evict the first respondent. Regrettably,
I
share a different view.
[33]
Section 4(1) of the PIE Act confers the right to apply for eviction
only to the owner or the person in charge of
the property. A reading
of the record in this appeal clearly establishes that the appellant
has based his application on the allegation
that he is the registered
owner of the property. On the binding authority of the Constitutional
Court this is manifestly wrong
as the PTO does not confer ownership
to the holder. It is trite in our law that a litigant stands or falls
by his or her papers.
In this view I am fortified by the judgment of
the Constitutional Court in
South
African Transport and Allied Workers Union and Another
v
Garvas
and Others
[15]
,
where
the court said:
‘
Holding
parties to pleadings is not pedantry. It is an integral part of the
principle of legal certainty which is an element of
the rule of law,
one of the values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet. Moreover, past decisions of this Court have adopted this
approach and in terms of the doctrine
of judicial precedent we are
bound to follow them unless we say they are clearly wrong. Judicial
precedent serves the object of
legal certainty. Following previous
decisions constitutes not only compliance with the doctrine of
judicial precedent but also
accords with the principles of judicial
discipline and accountability.’
[16]
[See
also
My
Vote Counts NPC
v
Speaker
of the National Assembly and Others
,
[2015]
ZACC 31
, paragraph 177
].
[34] The
court is not at liberty to infer that the appellant was the person in
charge contrary to his assertions of
ownership in the papers.
Consequently, a finding that the appellant is a person in charge of
the property by virtue of the PTO,
cannot be sustained.
Unfortunately, the main
judgment does not deal
with this issue. In my view the appellant is neither an owner nor a
person in charge and therefore lacks
the necessary
locus
standi
to bring the proceedings in
terms of the PIE Act.
[35] Even though this
finding is dispositive of the appeal on the eviction application, for
the sake of completeness, it is necessary
to deal with all the other
aspects of the main judgment in which there is divergence.
[36]
In its determination, the majority judgement reached a finding that
the property’s status as a common home is irrelevant
to the
proceedings. Respectfully, I hold a different view. In opposing the
eviction application, the first respondent raised two
grounds of
opposition, namely, that the property is a common home and the
validity of the PTO. For the purposes of these proceedings
t
he
PTO and the concept of a common home also known as a family home are
intertwined. The words family home and common home will
be used
interchangeably.
[37]
The appellant, faced with the defence of the property
being a common home, maintained his stance as a registered
owner of
the property. Curiously, he does not explicitly dispute the
respondent’s version. To properly assess
and
evaluate the facts of this case, consideration ought to be given to
the history of insecure land tenure, the allocation of communal
land
under the previous regime and the traditions and practices within the
black communities. The term, common home or family
house, was
and is still a term denoting a widely practised right to property in
the urban and rural context amongst the black communities.
It has
long historical roots in apartheid urban tenure predating the
extension of leasehold and ownership rights for black people,
but
continues to have strong traction with ownership and title in the
modern era.
[38]
As a starting point, it is important to understand and
apply customary law in its own framework and not through
the lens of
common law
[17]
. I understand a
PTO to be a form of tenure that is issued in communal land and does
not give the full ownership but only a perpetual
right to occupy. In
the traditional context, the appellant as the holder of the PTO is
regarded as a custodian or a caretaker of
the property with a
collective kin-based obligation to preserve the property for the
family, the ancestors and for future generations.
[39]
One can discern from the scanty information provided in
the pleadings that both the appellant and the respondent
occupied the
property as their family home before the demise of their parents. The
appellant does not deny that the PTO was in
the name of their father
before it was issued in his name. The circumstances upon which the
PTO was issued in the name of the appellant
whilst their mother was
still alive, are not clear.
[18]
In terms of the proclamation, when a holder of a PTO passes on, the
land reverts to the tribal authority and a new PTO will
be issued. In
practise the name of the person to take over as the holder of a PTO
is normally identified and agreed to by family
members.
[40]
In her opposing papers, the first respondent made it
clear that she did not give consent for the PTO to be issued
in the
name of the appellant. According to her, she got to know about the
PTO being in the name of the appellant during the court
proceedings.
This contention is supported by their sister who filed an affidavit
in support of the first respondent. These averments
are not disputed
by the appellant.
[41]
The high court in Gauteng recently had an opportunity to
deal with a similar dispute over a family house initially
allocated
in terms of the insecure land tenure in
Shomang
v Motsose N.O. and Others
[19]
.
As a background, t
he
property in question was designated for occupation by "Black
People" in terms of the Apartheid Black (Urban Areas)
Consolidation Act. Because black people were not allowed to own
property in urban township areas, the State issued permits,
residential
permits and certificates of occupation, granted in terms
of the Regulations Governing the Control and supervision of an Urban
Black
Residential Area. The property was labelled as a family house
according to the practices of the time. With the promulgation of t
he
Upgrading of Land Tenure Rights Act
[20]
(ULTRA) and the Conversion Act
[21]
the property qualified to be transferred and registered in the name
of a qualifying beneficiary. The family members wanted the
property
to be registered as a family title. Since that was not possible, they
were forced to nominate a member of the family to
be registered as a
custodian of the title of the property on behalf of the family. The
agreement between the family members was
recorded in a Family House
Rights Agreement outlining the supervisory role of the custodian.
[42]
It appears that t
he problem started
when the nominated custodian and caretaker of the property passed on,
resulting in the appointment of his son
as an executor of his estate.
Subsequent to his appointment, the executor threatened to evict the
other members from the property
including the applicant. In an effort
t
o protect and preserve the family home, the applicant
approached the court.
The court made findings
favourable to the applicant and ordered the property to be declared
as subject to
a family rights agreement
t,
and the registration of the property in the name of the applicant as
a custodian.
[43]
This judgment
is a clear indication that t
he
need to recognize family ownership, as a distinctive form of holding
immovable property, is not only a reality but a constitutional
imperative. The court made a case for a new kind of property right.
Furthermore, it alluded to the absence in law of a family property
or
a family right as a lacuna with serious constitutional implications.
Although this case relates to land tenure in an urban set
up there is
no reason why the same principle is not to be adopted in the rural
set up. In any event, the practice of a family home
has its origins
from the rural areas.
[44]
I now turn to the second ground of opposition raised by
the first respondent was the validity of the PTO.
In
entrenching this ground, the first respondent filed a counter
application for the
PTO
to be declared invalid and set aside.
The
main judgment elaborates at length on the application of the
Promotion of Administrative
Justice
Act 3 of 2000 (PAJA)
in connection with the failure of the first respondent to serve the
counterapplication on the third respondent. PAJA is applicable
only to reviews. From the language used in the pleadings, the counter
application was not brought as a review, instead, the respondent
sought a declarator for the PTO to be declared unlawful and for the
immovable property to be declared a common home. In
Makhaya
[22]
the SCA made the point that:
“
[71]
…the claim that is before court is a matter of fact. When a
claimant says that the claim arises from the infringement
of the
common law right to enforce a contract, then that is the claim, as a
fact, and the court must deal with it accordingly…
that the
claim might be a bad claim is beside the point”.
“
[72]
…a claim which exists as a fact, is not capable of being
converted into a claim of a different kind by the mere use
of
language…”
[45] In my
view, the failure to serve on the third respondent is of no
consequence. The third respondent, even though
cited in the
application for eviction, did not participate in the proceedings.
Moreover, the third respondent is not affected by
the declaratory
order sought by the first respondent. Clearly, the dispute had
crystallised between the appellant and the respondent.
Therefore, to uphold non-service will be to promote form over
substance.
[46] In the
event it is found that I am wrong and that PAJA is applicable, the
weight accorded in the majority judgment
to the failure of the
respondent to serve the counter-application on the third respondent,
does not warrant the dismissal of the
counter application. To deprive
the respondent of the right to have her case determined in the
ordinary course of events is tantamount
to trampling on her
constitutional right entrenched in Section 34 of our Constitution.
The section provides that everyone
has a right to have any
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. It is my considered
opinion that the issues raised
by the respondent are pertinent and
require a fair determination, as they not only affect the first
respondent. These issues are
of public interest as they affect a
number of families in the rural areas where the same legal framework
is still applicable and
have constitutional implication.
[47] It
seems to me that the court can adopt various measures in the exercise
of its discretion when dealing with a
case of this nature. A court
can adjourn proceedings and make a suitable order setting out the
steps that a respondent has to take
before a matter can continue,
alternatively, a matter can be struck off the roll. In both
instances, a window of reprieve will
be afforded to the respondent to
properly follow the processes in bringing an application before the
court for proper determination.
Therefore, the dismissal of the
counter application is not an appropriate order under the
circumstances.
[48]
On the finding by the majority judgment that the application for
eviction ought to have been dismissed, unfortunately
I do not agree.
The PIE Act provides
a procedure for the lawful eviction of unlawful occupiers. One of the
relevant sections is Section 4 (1). I
have already made a finding
with regards to the issue of ownership. At this point it is important
that I also deal with the finding
at paragraph 14 of the majority
judgment that the respondent is “an unlawful occupier”.
From the pleadings the motive
for the eviction of the first
respondent by the appellant is their personal differences. The
appellant contends that they cannot
co-exist.
It
is well-established that occupation is rendered unlawful by the
termination of the right of occupation. Nowhere in the sparse
founding papers the appellant signalled, clearly and unequivocally,
his intention to terminate the first respondent’s right
to
occupy the property. As such, there are no averments in the
appellants founding papers that the first respondent is occupying
the
property without his consent. Sadly, the majority judgment also does
not deal with this aspect.
[49]
In my view, the first respondent is not an unlawful
occupier as envisaged in the Act. Even if it were to be found
that
the respondent is an unlawful occupier, eviction in terms of PIE
requires a two pronged approach. The finding is not the end
of the
enquiry, t
he
Constitution and PIE require that
,
in
add
i
tion
to consider
i
ng
the lawfulness of the occupation
,
the
court must have regard to the inte
r
ests
and circumstances of the occupier and pay due regard to broader
considerations of fairness and other constitutional values
,
so
as to produce a
j
ust
and equitable result.
In
a nutshell
t
he
court is required to infuse just
i
ce
and equity into the inquiry
.
[50]
Furthermore, S
ection 4(8) of
the PIE Act, provides that a court is obliged to order eviction when
the requirements of the act are met and no valid
defence has been
made. It is clear that the requirements in section 4(1) of the PIE
Act have not been met. Notably, the majority
judgment also touches on
the issue of alternative accommodation with emphasise on the
appellant’s version, particularly his
bold statement regarding
his rejected offer of alternative accommodation. According to the
first respondent, this is misleading
as the alternative accommodation
referred to by the appellant is her own two roomed flat. It is the
respondent’s case that
as an unemployed person, her only source
of income comes from the rent of R300 she collects from renting out
the 2 roomed flat.
Considering all the circumstances in this case,
the shortcomings of the previous and current land tenure prescripts
and the two
grounds of opposition raised by the first respondent, I
am not convinced that it is just and equitable to evict the first
respondent
from her family home.
[51]
The last element of the main judgment that I differ
with, is the order that the first respondent be interdicted
and
restrained from entering the property at any time after she has
vacated or been evicted from the property. In my view, there
is no
justification for this order. Needless to say that no case has been
made by the appellant for such relief. A court cannot
grant an order
in circumstances where the relief sought
is
not supported by the facts.
[52]
In my view,
the order of the
high court to refuse the application for the eviction of the
respondent was correctly made.
S.T. TILANA-MABECE
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES
Appearing
for the appellant:
Adv.
S.J. Mushet
Instructed
by:
Dube
Wesley Attorneys
JOHANNESBURG.
c/o
Nceba Giwu Inc
MTHATHA.
Appearing
for the 1
st
respondent:
Adv.
M. Mhambi
Instructed
by:
S.
Mhambi Attorneys
MTHATHA.
Appearing
for the 4
th
respondent:
Mr
F. Ntayiya
c/o
Fikile Ntayiya & Associates
MTHATHA.
[1]
See:
Lebea
v Menye & Another
2023 (BCLR 257 (CC) where it was stated that
the
term ‘direct and substantial interest’ means an interest
in the right, which is the subject matter of the litigation,
and not
merely an indirect financial interest in the litigation.
[2]
Subsections
9 (2) (a) and (b) of the Proclamation provide
–
“
9
(2)(a) Upon the death of an allotment holder his rights to occupy
such allotment shall ipso facto be cancelled, subject
to
provisions of the Transkei Agricultural Development Act, 1966 and of
any soil conservations scheme in force under that Act,
such
allotment shall become available for re
–
allotment
to a widow or other member, including any other female member, of
the previous holders family selected for the purpose
by the tribal
authority. (b) In the absence of any such re
–
allotment,
the allotment shall revert to commonage
”
.
[3]
Such
is the cannon of construction applicable in interpreting statutes
and other documents as stated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA)
(
Endumeni
)
at para 12
.
[4]
Oudekraal
Estates
(Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) at 242.
[5]
Ndabankulu
v Ndabankulu and Another
(CA&R33/2018)
[2018] ZAECMHC 45 (17 August 2018).
[6]
In
terms of s 1 of PIE an ‘unlawful occupier’ is defined
as: ‘a person who occupies land without the express
or
tacit consent of the owner all person in charge, or without any
other right in law to occupy such
land,
excluding a person who is the occupier in terms of extension of
security of tenure act, 1997, and excluding a person whose
informal
right to land, but for the provisions of this act, would be
protected by the provisions of the interim protection of
informal
land rights act, 1996 (Act No.31 of 1996)’.
[7]
Section
4(7) reads:’
If
an unlawful occupier has occupied the land in question for more 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 an equitable to do so, after considering all
the relevant
circumstances, including... where the land has been made available
or can reasonably be made available by the municipality
or other
organ of state or another land owner for the relocation of the
unlawful occupier, and including the rights and needs
of the
elderly, children, disabled persons and households headed by women”.
[8]
Malan
v City of Cape Tow
n
2014 (6) SA 315 (CC).
[9]
Grobler
v Phillips and Others
2023 (1) SA 321
(CC).
[10]
Moseneke
and Others v Master of the High Court
[2000]
ZACC 27
;
2001 (20 BCLR 103
;
2001 (2) SA 18
at para 20
[11]
112
of 1991.
[12]
Herbert
N.O and Others v Senqu Municipality and Others
[2019]
ZACC 31
;
2019 (11) BCLR 1343
(CC);
2019 (6) SA 231
(CC) at para 37.
[13]
[1992]
ZASCA 208
;
1993
(1) SA 77
(A) at
82.
[14]
Footnote
2.
[15]
(CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC); [2012] 10 BLLR
959 (CC); (2012) 33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13
June
2012) para 114.
[16]
(CCT
112/11)
[2012] ZACC 13
;
2012 (8) BCLR 840
(CC);
[2012] 10 BLLR 959
(CC); (2012) 33 ILJ 1593 (CC);
2013 (1) SA 83
(CC) (13 June 2012),
paragraph 114.
[17]
Alexkor
Ltd and Another v Richtersveld Community and Others
(CCT19/03)
[2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14
October 2003) at para 51:
“While
in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law.
Like all law it
depends for its ultimate force and validity on the
Constitution.
44
Its
validity must now be determined by reference not to common law, but
to the Constitution.
45
The
courts are obliged by section 211(3) of the Constitution to apply
customary law when it is applicable, subject to the
Constitution and
any legislation that deals with customary law. In doing so the
courts must have regard to the spirit, purport
and objects of the
Bill of Rights.”
[18]
Location
Regulations:
Unsurveyed
Districts: Transkei Territories Proclamation No. 26 of 1936.
[19]
(6990/2022)
[2022] ZAGPPHC 441;
2022 (5) SA 602
(GP) (24 May 2022).
[20]
Footnote
2.
[21]
81
of 1988.
[22]
Makhanya
v University of Zululand
2010
(1) SA 62
(SCA) at para 71 and 72.