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[2023] ZAFSHC 202
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Member of the Executive Council of the Department of Human Settlement Free State v Chiliza and Others (183/2023) [2023] ZAFSHC 202 (23 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
183/2023
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the matter between:
MEMBER OF THE
EXECUTIVE COUNCIL
Applicant
OF
THE DEPARTMENT OF HUMAN
SETTLEMENT:
FREE STATE
And
ANNA THORIA
CHILIZA
1
st
Respondent
LONDEKILE
CHILIZA
2nd Respondent
MAVELA
3
rd
Respondent
OUPA MOTHOOSELE
4
th
Respondent
AZOLA
SAJINI
5
th
Respondent
THABISA MVUMVU
6
th
Respondent
FEKILE BUTHELEZI
7
th
Respondent
SESI
NKOLI
8th
Respondent
MALOLO
9th
Respondent
TSHOKOLO
NKOLI
10th
Respondent
NHLAKANIPHO
11th
Respondent
JAMES
JONAS
12th
Respondent
MOSEHLE
SENKU
13th
Respondent
FEKILE
14th
Respondent
MATSEBE
RECKS MABONQWANA
15th
Respondent
CARLY
16th
Respondent
SHAUN
17th
Respondent
CONNY
18th
Respondent
MATSEKO
MOHANOE
19th
Respondent
GLEN
RAMASHU
20th
Respondent
ADONISI
21st
Respondent
MATSOBANE
22nd
Respondent
MJOLI
NKANYISO
23rd
Respondent
SELLO
LETJHIKI
24th
Respondent
MALONDI
25th
Respondent
MAVELA
26th
Respondent
FREEDOM
27th
Respondent
WELCOME
KHONTO
28th
Respondent
PALESA
MOKATSANYANE
29th
Respondent
TOM
30th
Respondent
NTOMBI
31st
Respondent
NKUMBI
32nd
Respondent
MAFA
MSIMANGA
33rd
Respondent
MATSHEPO
34th
Respondent
RADEBE
35th
Respondent
CHILIZA
36th
Respondent
TEBOHO
37th
Respondent
THANDAZA
38th
Respondent
METSIMAHOLO
LOCAL MUNICIPALITY
39th
Respondent
CORAM:
P R
CRONJé,
AJA
HEARD
ON:
13
APRIL 2023
DELIVERED
ON:
23
MAY 2023
JUDGMENT
BY:
P R CRONJé,
AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 11h00 on 23 May 2023.
[1]
The Applicant brought an application for eviction of the First to
Thirty-Eighth Respondents from
various properties situated in
Sasolburg. It is alleged that all thirty-eight respondents are
unlawful occupiers of the respective
erven.
[2]
When the matter came before me on 13 April 2023, I informed Adv
Mofokeng, for the Applicant,
that I could not find a return of
service on the Municipality (Thirty-Ninth Respondent). After
taking instructions it appeared
that service was not effected on the
Municipality.
[3]
I also conveyed my concern that there does not appear to be returns
of service on a number of
the Respondents. There are in fact
only sixteen (16) returns of service, whereas there are thirty-eight
Respondents who are
allegedly in unlawful occupation of the erven.
[4]
A perusal of the file furthermore indicated that VDW Attorneys
withdrew as attorneys of record
of the First to Thirty-Eighth
Respondents excluding the Eighth and Tenth Respondents. The notice
was filed with the Registrar of
this Court on 25 November 2022.
The notice
inter alia
states:
“
KINDLY
TAKE FURTHER NOTICE that the First to Thirty-Eighth Respondents
excluding the Eighth and Tenth Respondent, last-known address
is c/o
the Sixth Respondent residing at House 4[…], RDP House, Z[…],
Sasolburg with electronic mail address:
t[...]@gmail.com
and
a[...]@gmail.com
.
”
[5]
On 31 March 2023, Legal Aid South Africa filed a notice of
appointment as attorneys of record
on behalf of the Sixth, Fifteenth
and Thirty-Second Respondents.
[6]
Mr Geyer of Legal Aid South Africa, Bloemfontein office, informed me
that he does not have instructions
to argue the matter as Mr N H
Prinsloo of Legal Aid South Africa at Vereniging is the attorney who
deals with the matter.
Mr Prinsloo is also the author of the
Heads of Argument on behalf of the three Respondents.
[7]
The Sixth, Fifteenth and Thirty Second Respondents were present at
Court. I requested Mr
Geyer to establish from the Sixth
Respondent whether her address is the address which the other
Respondents, who were not present
at Court, elected to receive
notices. Mr Geyer informed me that it is not the position.
[8]
Rule 16(1) of the Uniform Rules of Court provides:
“
If
an attorney acts on behalf of any party in any proceedings, such
attorneys shall notify all other parties of this fact and shall
supply an address where documents in the proceedings may be served.
”
[9]
I could find no indication in the file that the other Respondents
were informed of the withdrawal.
As conveyed by Mr Geyer, the Sixth
Respondent is not the representative acting on their behalf or who
are mandated to receive papers
for the other Respondents at her
address.
[10]
I requested that Advocate Mofokeng and Mr Geyer discuss the lack of
service on the Municipality and other
Respondents as well as the
default of the other Respondents as they did not file Heads of
Argument, but it appeared to me on the
record that they still had
interest in the application. I requested them to see whether
they would be able to structure some
form of draft order for
continuation of the matter. I requested feedback from them by 5
May 2023.
[11]
Advocate Mofokeng subsequently prepared a memorandum, dated 5 May
2023, which was filed with my Registrar.
Therein she reported
that Ms Kebi, representing the State Attorney, and Mr Geyer exchanged
contact details for exchanging information
pertaining to the issues
raised and to prepare a structure for the draft order. She
informs that service was subsequently
effected on the Municipality.
[12]
It appears that the State Attorney had been trying to contact Mr
Geyer, however, to no avail. No reply
was received from Mr
Geyer pursuant to my request. On 16 May 2023, Advocate Mofokeng
prepared another memorandum informing me that
both she and her
attorney experience challenges to get hold of Mr Geyer and that his
cell phone goes to voice mail. She would only
be available to argue
the matter on 20 July 2023.
[13]
At date of this order, the return of service on the Municipality have
not yet been filed.
[14]
It is imperative that this matter be dealt with as soon as possible
as it was already enrolled and postponed
or removed from the roll
since 3 February 2022.
ORDER
[15]
I therefore make the following orders:
1.
The Application is postponed to 20 July 2023.
2.
Leave is granted to the Applicant, if it deems it necessary, to amend
its Notice of Motion
and file supplementary affidavits, if any, on or
before 15 June 2023.
3.
Leave is granted to the Respondents to file supplementary affidavits,
if any, on or before
23 June 2023.
4.
Leave is granted to the Applicant, if it deems necessary, to file
supplementary replying
affidavits, if any, on or before 30 June 2023.
5.
Leave is granted to the Applicant to file supplementary heads of
argument by no later than
12:00 on 12 July 2023.
6.
Leave is granted to the Respondents to file supplementary heads of
argument by no later than
12:00 on 14 July 2023.
7.
The Notice of Set-down shall be served on all the Respondents by the
Sheriff. In the event
that the Sheriff is unable to effect service,
leave is granted that service be effected by attachment to the
affected properties
and by public address system.
8.
There is no order as to costs.
P
R CRONJé, AJ
On
behalf of the Applicant:
Adv
R B Mofokeng
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
On
behalf of
Sixth, Fifteenth and
Thirty
Second Respondents:
Mr W
Geyer
Legal
Aid South Africa
Bloemfontein
On
behalf of other Respondents:
No
appearance