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2023
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[2023] ZAFSHC 146
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Metsimaholo Local Municipality v Unlawful Occupiers of and Persons Intending to Unlawfully Occupy the Land and Another (6054/2022) [2023] ZAFSHC 146 (26 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6054/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
METSIMAHOLO
LOCAL MUNICIPALITY
Applicant
And
UNLAWFUL
OCCUPIERS OF AND PERSONS
1
st
Respondent
INTENDING
TO UNLAWFULLY OCCUPY THE
LAND
KNOWN AS WONDERFONTEIN SASOLBURG,
FREE
STATE PROVINC ALSO KNOWN AS THE
REMAINDER
OF THE TOWNSHIP, SASOLBURG
EXTENSION
58, PARYS REGIONAL DIVISION,
FREE
STATE
ECONOMIC
FREEDOM FIGHTERS (“EFF”)
2
nd
Respondent
HEARD
ON:
15
DECEMBER
2022
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII on
26
APRIL 2023. The date and time for hand-down is deemed to be 26 APRIL
2023 at 13H00.
[1]
The applicant (“the Municipality”) is the owner of the
land Wonderfontein, Sasolburg (also known
as the Remainder of the
Township, Sasolburg Extension 58) and Parys Regional Division in the
Free State Province (“the land”).
[2]
On 2 December 2022, the Municipality launched an urgent
ex parte
application (Part A) seeking an order authorizing the service of
the notice of contemplated eviction proceedings in terms of section
4(2) of the Prevention of Illegal Eviction From and Unlawful
Occupational of Land Act, 19 of 1998 (“PIE”) on the
respondents
together with an interdict prohibiting the respondents
from erecting and/or occupying any building structures on the
Municipality’s
land pending eviction of the respondents (Part
B).
[3]
The application was triggered by a notice issued by the EFF on 1
December 2022 stating the following:
“
Dear
Commissaries and Fellow Fighters
1.
This serves to remind you of the Land Occupation program that
will take place in Wonderfontein, in Metsimaholo, on
Monday
the 05
th
of December 2022
.
2.
Furthermore, all members of the Provincial Command Team,
Fezile Dabi Regional Command, Team and EFF Councillors in the region
are
expected to convene in Metsimaholo no later than
9:00
AM
on the said date.
3.
Moreover, Provincial Command Team, Fezile Dabi Regional
Command Team and Councillors are encouraged to bring along their
bakkies
to the program.
NB: No apology will
be accepted
.
Hope the above finds
you in order.
Revolutionary Regards.
Cmsr: Malefane
Msimanga
Provincial Secretary.”
[4]
According to the Municipality, the notice was meant to mobilize
community members to illegally invade the
Municipality’s land
on 5 December 2022.
[5]
Having heard the submissions by the Municipality’s counsel, I
was not persuaded that the EFF’s
notice constituted an
incitement to invade the Municipality’s land. I also held that
the issue raised in the Municipality’s
papers was too abstract
and hypothetical as at that time, there was no evidence of land being
demarcated or structures being built
on the land and taking into
account the Municipality’s own submission that the “land
invasion” was planned to
take place on 5 December 2022, the
Municipality was thus entitled to return to court when the
respondents’ intentions had
become clear consequently, the
application was struck from the roll due to lack of urgency.
[6]
Approximately a week later on 9 December 2022, the Municipality
launched a fresh application on the basis
that evidence of the
planned land invasion has become available. Photographs taken on 5
December 2022 showing a large number of
community members in long
queues being attended by members of the EFF were attached on the
papers as proof that the EFF was assisting
the community members with
registration for residential stands.
[7]
The Municipality also referred to Facebook Posts by a Mr Victor
Nyembe and other participants gloating and
confirming that
registration for stands was taking place. They wrote:
“
Thank You EFF
we’re going to get our land in Wonderfontein. The EFF
leadership is busy registering people for residential
stands in
Zamdela Municipal Offices next to Sonny Garage and people have come
in enormous numbers. Database is also captured and
collated too and
when we leave here, we going straight to the promised land of
Wonderfontein in unstoppable numbers…”
The Municipal Manager
and the Executive Mayor of Metsimaholo Local Municipality have sent
five Municipal Security Guards to protect
the Wonderfontein area and
to stop the needy from occupying that land. Ooooooh what a
shame
!!!!...
How can you stop the floods with a sift.”
[8]
And:
“
First cardinal
pillar of the EFF, expropriation of land without compensation
currently underway in Metsimaholo. When we started
with Mooidraai
they said they’re going to remove us there and today they are
saying the very same thing with Wonderfontein.
All that is left is
proper services in Mooidraai.
The Provincial Leadership of the
EFF just 1 month in office and they are already here to be part of
land distribution. Let’s
give people land to have dignity. No
one is going to remove us from that land. This is going to be another
successful project by
the EFF. We’ll continue registering
people until Friday.
#expropriationoflandwithout
compensation.
#onemillionmembership.
#EconomicFreedomFighters”
I am reliably informed
that the Municipal Manager and Executive Mayor of Metsimaholo Local
Municipality, Cllr Jeff Zwane went to
the high court of Bloemfontein
last week Friday of the n2dn December 2022 to bar, stop and interdict
people from occupying the
“Wonderfontein” land.
Unfortunately, the Bloemfontein, the Bloemfontein high court had
dismissed their application
and told them that their application
lacks substance, evidential, gravitas, and full of hearsays.
I have been telling
you that the Executive Mayor of Metsimaholo Local Municipality and
his friend MM are wasting our service delivery
money with barbaric
and unnecessary court challenges. They have done it again with a
subterfuge fail and a court had proven them
to be unfit to hold those
respective positions.
Your money is stolen
by way of useless and unnecessary court bids and if that money was
well used, more roads could have been built
and repaired.
Infrastructure could have been installed and upgraded. More youth
opportunities could have been initiated. Metsimaholo
residents, we
are in big trouble with this DA incompetent government…”
[9]
The respondents filed a notice to oppose the application. After
hearing the arguments on urgency, I was
prima facie
s
a
tisfied
that the matter was urgent and that the Municipality could not be
afforded substantial redress if it had to follow the normal
course
laid down by the rules of court accordingly, I granted a
rule nisi
returnable on 2 February 2023 on the following terms:
“
2.1
The Respondents are interdicted and restrained from:
2.1.1 Erecting
any home and/or abode and/or dwellings and/or other structures on the
property known as
Wonderfontein, Sasolburg, Free State Province
also known as the
Remainder of the Township, Sasolburg Extension
58, Parys Regional Division, Free State Province
(“the
land”);
2.1.2 Taking any
occupation and/or occupying and/or inhabiting any home and/or
dwelling and/or abode and/or other structure
which might be erected
on the land, or any portion thereof.
2.2
Authorising the Applicant, its officials and/or employees and/or
contractors, assisted by the Sheriff
and/or the South African Police
Services to give effect to the provisions of this order by:
2.2.1 Removing
and/or demolishing any vacant and/or unoccupied structure erected on
the land at the time of the granting of
this order;
2.2.2 To take
all reasonable steps in order to give effect to this order.
3. The
respondents are granted leave to file answering affidavits by 12pm on
Monday,
12 December 2022
.
4. The
applicant to file the replying affidavit by 12pm, Wednesday the
14
th
of
December 2022.
5. The
costs shall stand over.”
[10]
The proceedings resumed on 15 December 2022.
[11]
In advancing the basis of its case, the Municipality maintains that a
case has been made out for the granting of an interdict
pending the
eviction of the respondents. The land that the respondents intend to
invade has not been developed as it has not been
approved for housing
by the department of Cooperative Governance, Human Settlements and
Traditional Affairs.
[12]
The land is also unfit for human habitation. It lacks basic
infrastructure for reticulation, drainage, water supply,
electricity
and sewerage facilities and these services can only be attended to
after the land has been approved for housing. Land
invasions impedes
the Municipal’s compliance with its constitutional obligations.
Already there is a backlog in development
of land for low-cost
housing and a large percentage of the community is in need of safe
and basic housing therefore by embarking
on self-help mechanisms, the
respondents are prejudicing those who have been vetted and qualified
for allocation of housed by “jumping
the queue.”
Furthermore, by occupying undeveloped land the respondents are also
exposing themselves to health and safety
risks.
[13]
It is argued that should the respondents be allowed to invade the
land the Municipality would be saddled with exorbitant
legal costs
for eviction of the respondents and the removal of the unauthorised
structures.
[14]
The respondents’ answering affidavit is deposed to by Ms
Selloane Motjeane, a PR councillor in Metsimaholo Local
Municipality
and regional secretary of the EFF.
[15]
The affidavit was due on 12 December 2022. It was only filed a day
later on 13 December 2022. The respondents seek condonation
for the
late filing of the answering affidavit. They attribute the delay to
the inability to procure legal representation timeously
and also aver
that the Municipality is not prejudiced by the late answering
affidavit.
[16]
I agree. A delay of one day is indeed miniscule. The respondents’
explanation for the delay is acceptable and no
prejudice has been
indicated by the Municipality by the respondents’ ineptitude on
that basis, the application for condonation
is granted.
[17]
In the answering affidavit, the fact that the EFF has been
registering members of the community for allocation of stands
on the
Municipality’s land is not disputed. The application is opposed
mainly on technical grounds namely that: the matter
is not urgent
because some of the community members are already occupying the land,
those who have been registered by the EFF for
allocation of the
stands have not taken occupation yet and there is no proof that their
occupation is imminent the Municipality
is merely anticipating that
since they have been registered the next step would be occupation.
For that reason, so it is submitted
the application must be struck
from the roll.
[18]
In the alternative, the respondents submit that the application must
be dismissed based on the grounds that the Municipality
has failed to
establish the requirements for an interdict. The respondents submit
that there are people who are already in occupation
of the land and
an interdict is intended to be a remedy for an ongoing or future
conduct therefore it cannot be enforced against
people who are
already in occupation of the land. An interdict is also incompetent
against those who have registered for allocation
of the stands as
they have not occupied the land yet and if they do occupy the land
the Municipality has an alternative remedy
in that, it can institute
eviction proceedings.
[19]
The respondents further state that an interdict cannot be granted
against unidentified persons as it would be difficult
to determine
who is bound by the order and that would result in the Municipality
using the order against anyone and everyone. The
balance of
convenience also does not favour the granting of the interdict
because there is no land occupation currently taking
place.
[20]
It is trite that on the return day of a
rule
nisi
,
the court is entitled to revisit the issues that were raised in the
papers as the basis of urgency in order to determine whether
the
rule
nisi
ought
to be confirmed or not
.
[1]
[21]
In this matter, the respondents’ objection against the urgency
of the application is premised on the incorrect
view that because the
impugned conduct is neither current, ongoing or imminent therefore
there are other alternative remedies available
to the Municipality
instead of launching an urgent application.
[22]
The provisions of Uniform Rule 6(12) (b) are clear, the test for
urgency is whether the applicant can obtain substantial
redress in
due course to protect its rights. Harm is merely a requirement for
launching an application on urgent basis. See also
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd
[2]
for that reason, I hold that there is no merit to the respondents’
objection in this regard.
[23]
Except to allege that there are people already occupying the land
with their families inexplicably, the identity of those
people has
not been disclosed in the answering affidavit. No attempt has also
been made by the said occupants to identify themselves
by filing
confirmatory affidavits in that regard.
[24]
I also find it quiet peculiar that the circumstances under which
those occupants relocated themselves to the Municipality’s
land
are also not explained including the basis upon which the EFF
designated itself the responsibility of registering members
of the
community for allocation of the stands on the Municipality’s
land.
[25]
I am also not persuaded that the order is or would be ineffectual
merely on the basis that the respondents have not been
identified by
their names in the papers. In
Communicare v The Persons Whose
Identities Are Unknown to the Applicant but who unlawfully occupy the
remainder of the consolidated
farm Bardale no. 451, Division of
Stellenbosch better known as Fairdale and Others (CPD case no.
7970/03, unreported)
it was held that:
“
the persons in
occupation of land can be viewed as an ascertainable group, even
though their names might not be known. Through the
process of service
more information concerning the identities of the group may become
known. In the ordinary course no relief would
be granted against
unlawful occupiers under section 4 of the PIE Act (the Act) until
notice has been given by a method approved
by the court. When the
eviction proceedings ultimately serve before the court, it will be
necessary to assess the adequacy of the
notice and whether an
effective order against sufficiently identified parties can be
granted.”
[26]
I am aligning myself with this dictum for the reason that, on the
facts germane to this matter the respondents are cited
as: “
unlawful
occupiers and persons intending to unlawfully occupy the land
”.
Upon being served with these proceedings
[3]
the respondents opposed the application. In my view, by accepting
service, opposing the application and also averring that there
is a
group that is already occupying the land and another which is yet to
occupy the land the respondents have placed themselves
squarely
within the confines of being “
the
ascertainable group
even
though their names might not be known
”
therefore, it would not be difficult to determine who is bound by the
order.
[27]
In terms of section 6 of PIE, the Municipality is enjoined with
powers to prevent occupation and to also seek eviction
of occupiers
of the land on the basis of either unauthorised occupation or
occupation of land which is unsafe or inhabitable.
[4]
It is indisputable that the land that has been earmarked for invasion
by the respondents is inhabitable as it has not been developed
for
housing. For all these reasons, the application succeeds.
[28]
With regard to costs, I am alive to the plight of the indigent
members of the society, the inhumanity and degradation
which comes
with being landless and the failure of the state to uphold its
constitutional obligation to provide housing to the
indigents
[5]
therefore, I do not intend saddling the respondents with a cost
order.
[29]
I make the following order.
1.
The rule
nisi
(Part A) granted 15 December 2022 is
hereby confirmed.
2.
There is no order in respect of costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant: Adv.
L.A Roux
Instructed
by: Mhlokonya
Attorneys
BLOEMFONTEIN
Counsel
on behalf of Respondent: Adv.
S.D. Mbeki
Instructed
by: Lovius
Block Attorneys
BLOEMFONTEIN
[1]
Delta
Corporation (Pty) Ltd v Van der Merwe
2002
JDR 0893
;
Phakedi
v Dr Kenneth Kaunda District Municipality and Another
[J1461/11]
[2011] ZALC JHB 83 (2012) 33IJL 700 (LC)
22 September 2011.
[2]
[2011]
ZAGPJHC
196.
[3]
Annexure “A”, “B” and “C” of the
founding affidavit are copies of proof of service of the
application
on the respondent’s attorneys by email and by the Sheriff
respectively.
[4]
Port
Elizabeth Municipality v Various Occupiers
(CCT
53/03)
[2004] ZACC 7
;
[2004] ZA CC7
;
2005
(1) SA 217
(CC)
;
2004
(12) BCLR 1268
(CC)
(1 OCTOBER 2004) para 25.
[5]
In terms of section 26(1) and (2) of the Constitution Act, 108 of
1996 everyone is entitled to adequate housing. The state is
obliged
to ensure the “realization and progression” of this
right.