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2024
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[2024] ZAFSHC 103
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Oppermansgronde Communal Property Association v Smith and Others (1489/2023) [2024] ZAFSHC 103 (10 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 1489/2023
In
the matter of:
OPPERMANSGRONDE
COMMUNAL
PROPERTY
ASSOCIATION
Applicant
And
FREDERICH
HERBERT SMITH
First
Respondent
ROBERT
SMITH
Second
Respondent
ANY
AND ALL IDENTIFIED OCCUPIERS,
OCCUPYING
CAMP NO. 10 AREA 1245,
OPPERMANSGRONDE,
FREE STATE PROVINCE,
DISTRICT
KOFFIEFONTEIN
AS
WELL AS UNITS 9, 10, 11, 12, 13, 14, 15, 16, 17,
18,
19 and 20 OF THE REMAINDER OF THE FARM
RORICHSHOOP,
NO 191, IN EXTENT 2585,3600
HECTARES,
DISTRICT FAURESMITH
Third
Respondent
CORAM:
NAIDOO, J
HEARD
ON:
8 FEBRUARY
2024
DELIVERED
ON: 10
APRIL 2024
JUDGMENT
[1]
The applicant is Oppermansgronde Communal Property Association (the
CPA), established
in terms of the Communal Property Associations Act
28 of 1996 (the CPA Act). This is an application for the eviction of
the first,
second and third respondents from properties in respect of
which the applicant has ownership rights. The applicant applied in
terms
of section 4(2) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE). Leave was granted
by this court on 13 April 2023 to serve the papers in this matter
upon the respondents. This was done, and the first respondent
opposed
the application. Before me was Part B of the application, seeking the
eviction of the first, second and third respondents.
As certain other
facts emerged the applicant sought the same relief but only against
the first respondent. I will deal further
with this later. Adv S
Grobler SC represented the applicant and Adv R Van der Merwe
represented the first respondent.
[2]
The applicant’s case is that on or about 12 July 2005, it
entered into a written
lease agreement with the first respondent in
respect of the property identified as Camp 10, Area 1245
Oppermansgronde. The period
of the lease was from 1 June 2005 to 31
May 2015. The applicant alleged that the first respondent failed to
pay the rent in terms
of the lease agreement but that he, in any
event, had been in unlawful occupation since the expiry of the lease
in 2015. In addition,
the applicant held a disciplinary enquiry
against the first respondent, on 7 August 2007, for alleged
misconduct. As a result of
the enquiry, the first respondent was
found guilty and his membership of the applicant was terminated.
The
first respondent, therefore, no longer had any right of occupation in
respect of Camp 10.
[3]
The applicant further alleged that to the best of its knowledge, the
first respondent
does not physically occupy Camp 10, Area 1245, but
that following an arrangement with the second respondent, the latter
and his
family occupy Camp10/1245. They also occupy Units 9 to 20 of
the remainder of the Farm Rorichshoop of area 191, which occupation
is without any permission. The occupation of the respondents is
therefore unlawful and they are unlawful occupiers as envisaged
in
PIE. The further allegation is that the applicant, as the owner of
the properties, is entitled to all the rights afforded to
a
registered landowner, particularly the use of the property. I mention
that although the first and second respondents opposed
this matter,
only the first respondent filed an Answering Affidavit. The second
and third respondents played no part in these proceedings
and neither
party mentioned the second or third respondents further. As
indicated, the applicant later averred that it was seeking
the
eviction only of the first respondent and anyone who might occupy the
property through him. I shall hereafter refer to first
respondent as
“the respondent”
[4]
The respondent denied that the deponent to the Founding Affidavit,
Clint Louis Barnes
(Barnes) is authorised to bring this application
as no resolution of the CPA authorising the launch of this
application has been
furnished. He then proceeded to set out a
lengthy history of the devolution of the land in question and the
in-fighting between
two factions (referred to as the Opperman group
and the Barnes group) claiming rights of ownership to the land, much
of which,
in my view, is irrelevant for the purposes of this
application, save in so far as the respondent relies on such
in-fighting as
a defence to this application. I will deal with this
aspect later. Allied to this, the respondent raised the defence of
non-joinder
of the Department of Rural Development and Land Reform
(the Department), which was investigating the dispute between the two
factions
claiming ownership rights to the property. The Department
was investigating the dispute as to the Executive Committee’s
authority
to represent the CPA and referred the dispute to its Land
Rights Management Facility (LRMF) to be resolved by the Department,
which
has a direct and substantial interest in litigation where
either of the parties purport to assert an entitlement to represent
the
CPA
[5]
The respondent also raised as a defence that the applicant followed
the wrong procedure
in this application as PIE applies to residential
property. He asserted that he does not reside on the property but
uses it only
for the purposes of grazing his animals and has done so
since 2006. Having said that the respondent admits entering into the
lease
agreement in 2005, as alleged by the applicant, and that the
lease expired through the effluxion of time. Due to the intensifying
dispute between the two “factions”, he was not able to
determine who the lessors of the property were. Consequently,
the
conclusion of a further lease agreement and the payment of rental
became impossible, as stern warnings were issued by both
factions
that occupiers of land were not to conclude lease agreements with the
opposing faction. The respondent alleges further
that the applicant
was aware of the material dispute of fact regarding the authority of
the Executive Committee to represent the
CPA when it launched this
application. The respondent alleged that the applicant had failed to
make out a case for the relief that
it sought.
[6]
In Reply, the applicant accepted that the respondent does not reside
on the
property and that PIE does not apply. However, the applicant
contends that the only enquiry that remains is whether first
respondent
and others who occupy through him have any legal right to
occupy the property, in view of the fact that the respondent does not
dispute that the property belongs to the CPA, that the respondent
admitted that the lease agreement between him and the CPA had
expired
and that no new lease agreement had been entered into. The applicant
contends that, as owner of the property, its common
law remedy of
rei
vindicatio
is not affected, and that it takes the form of an
application or action for ejectment. The common law rules are subject
to the provisions
of PIE and the Extension of Security of Tenure Act
62 of 1997 (ESTA), hence the procedure adopted in terms of PIE is not
incorrect,
as PIE prescribes the procedure to be followed in eviction
proceedings and does not confer the right of ownership.
[7]
In answer to the respondent’s challenge to Barnes’
authority, the applicant
admits that there has, in the past, been
in-fighting, but that the Executive Committee is still the
legitimately elected representative
of the CPA. This is based on the
assertion that the CPA was not placed under administration, as
alleged by the respondent. The
CPA holds elections every five years
to appoint its Executive Committee. The last such election was held
in 2019, at which the
current Executive Committee was elected. Barnes
is the Chairperson of the Executive Committee, and the next election
is scheduled
for 2024. On 5 October 2020, the Department wrote a
letter confirming that officials of the Department had attended the
general
meetings held, that the CPA furnished documents to these
officials, which proved that they had complied with their
Constitution
and had adhered to the provisions of the CPA Act. The
Department then asserted that the applicant was compliant for
2019/2020.
The applicant argues that the respondent’s attack on
the authority of Barnes has no merit.
[8]
The issues for this court to decide are whether:
10.1 the
deponent of the applicant’s Founding Affidavit had
locus
standi
to bring this application;
10.2 the
respondents have any lawful right of occupation of the property;
10.3 the
applicant is entitled to the relief it seeks.
[9]
It is common cause or not in dispute between the parties that:
9.1
the parties entered into the contract of lease in respect of the
property in 2005;
9.2
the lease expired in 2015 and no new lease agreement was entered
into;
9.3
the respondent has failed to pay any rental in respect of the
property;
9.4
the respondent does not occupy the property for residential purposes
but utilises the property for grazing
his animals.
[10]
I pause to mention that I do not consider the respondent’s
points regarding the material dispute of fact or the
non-joinder of
the Department as deserving of special mention, as the applicant’s
response in Reply puts paid to those points
raised. It has
shown that there is a lawfully elected Executive Committee in place,
so that any dispute as to the authority
of the Committee is not
material for the purposes of this application. In view of the
Department’s letter dated 5 October
2020, it is clear that it
does not have a direct and substantial interest in this litigation or
the outcome thereof. I will deal
with each of the issues I have
enumerated earlier. The respondent did not file a notice in terms of
Uniform Rule 7(1), which provides
that:
Subject
to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfied the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.
The
respondent simply raised the challenge to Barnes’ authority in
his Answering Affidavit, which was answered
by the
applicant in its Replying Affidavit, where it explained that the
Executive Committee, of which Barnes is the Chairperson,
was the
lawfully and duly elected representative of the CPA and was therefore
authorised to bring this application.
[11]
In the face of the respondent’s lack of
response, either by way of notification or during oral argument, to
indicate specifically,
that he was not satisfied with the applicant’s
response and, with the leave of the court (as required by Rule 7),
continues
to dispute Barnes’
locus
standi
until satisfactory proof
thereof is furnished, the applicant and the court were entitled to
accept that the respondent was satisfied
that Barnes did have
authority to depose to the Founding Affidavit. It was not open to the
respondent to continue to dispute such
authority in his Heads of
Argument. I accordingly find that Barnes did have the authority to
depose to the Founding Affidavit.
[12]
As I indicated earlier in this judgment, the respondent has
conceded that he entered into the lease agreement
with the
representatives of the applicant in 2005, that the lease expired in
2015, that he has not paid rental in respect of the
property since
then and that he continues to utilise the property. The respondent
does not deny that the applicant has ownership
rights, or that in
terms of the CPA Act, it may deal with the property as an owner
would, subject to the agreement by its members.
[13]
The respondent has not alleged at all that the applicant is not
acting according to the prescripts
of the CPA Act. His defence in
respect of the non-payment of rental because of the disputes between
the two rival factions of the
applicant, is untenable and does not
assist the respondent. He opportunistically alleges that he did not
know who the lessor was,
when in fact the Executive Committee was
duly and properly elected in 2019. Such election could only be done
with the knowledge
and assent of the members of the CPA. The
respondent made no attempt to approach them to sign a new lease
agreement or even tender
payment of the rental. He also does not
dispute that his membership of the applicant was terminated in 2007,
after a disciplinary
hearing against him was held, yet he continued
to utilise the property free of charge, to the prejudice of the
applicant and, by
extension, to other members of the applicant. In my
view, the respondent has failed to show that he, or anyone occupying
through
him, has a lawful right of occupation of the property.
[14]
I turn now to deal with the issue of whether the applicant is
entitled to the relief it claims, namely, the
eviction of the first
respondent. The applicant has alleged ownership of the property which
the respondent has not denied. On his
own version, in his exposition
of the history of the devolution of the property in question, the
respondent sets out that the land
was expropriated by the government
of the day and proclaimed as an area reserved for occupation by
Coloured people. Restitution
claims were filed by the Barnes Group
and the Opperman Group. After the intervention of the Regional
Commissioner (of the Department),
the Barnes Group was elected to
represent the entire community. The CPA was formed and established,
after which a committee was
successfully elected to manage its
affairs, confirming the applicant’s claim to ownership rights.
[15]
The respondent complains that the applicant only made out a case in
Reply by alleging that it pursues its
common law remedy of
rei
vindicatio
, which was not its case in Founding, where it simply
proceeded in terms of PIE, and which it later conceded does not apply
due
to the respondent not residing on the property. The respondent
attacks the validity of the applicant’s claim on the technical
ground that the case it was required to meet was in terms of PIE, and
not any common law right or remedy. I set out earlier in
this
judgment the applicant’s argument regarding the
rei
vindicatio
, and that the procedure in terms of PIE is not
incorrect. PIE does indeed set out the procedures to be followed in
an application
for the eviction of the unlawful occupier, while
recognising the right of land ownership, which is not conferred by
PIE.
[16]
The purpose of PIE is:
“
To
provide for the prohibition of unlawful eviction;
to
provide for procedures for the eviction of unlawful occupiers
;
and to repeal the Prevention of Illegal Squatting Act, 1951, and
other obsolete laws; and to provide for matters incidental thereto”
.
(my underlining).
It is perhaps also useful
to cite the preamble to PIE in order to give context to the current
application:
“
WHEREAS
no one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of property;
AND
WHEREAS 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;
AND
WHEREAS it is desirable that the law should regulate the eviction of
unlawful occupiers from land in a fair manner, while recognising
the
right of land owners to apply to a court for an eviction order in
appropriate circumstances;
AND
WHEREAS special consideration should be given to the rights of the
elderly, children, disabled persons and particularly households
headed by women, and that it should be recognised that the needs of
those groups should be considered”.
[17]
It is clear that one of the objects of PIE was to recognise the right
of land owners to apply to a court for an
eviction order against
unlawful occupiers in “appropriate circumstances” and to
regulate such eviction in a fair manner.
This is in addition to and
separately stated from the object of preventing the eviction of a
person from his/her home or demolition
of a person’s home
without a court order. Bearing in mind that the common law is subject
to the provisions of PIE, I am of
the view that engaging the
machinery of PIE in respect of the procedure to be followed in giving
effect to the common law remedy
of
rei vindicatio
is not an
incorrect procedure. The applicant has established in its Founding
Affidavit that it is the owner of the property and
that the lease in
terms of which the respondent enjoyed the right of
occupation/possession of the property had expired, effectively
terminating such right. The respondent confirmed that he was still
“in occupation” of the property, as he continues
to
utilise the property to graze his animals. The respondent has
admitted all of the elements necessary for the granting of a claim
for eviction grounded in the remedy of
rei vindicatio.
[18]
For the sake of completeness, I mention that PIE defines an unlawful
occupier as
“
a
person who occupies land without the express or tacit consent of the
owner or person in charge, or without any other right in
law to
occupy such land…”
The
Oxford English Dictionary defines an “occupier” as
“
a
person or company
residing
in or using a property as its owner or tenant, or (
illegally
)
as a
squatter
”.
While admitting that the lease agreement
entitling him to possession and/or occupation to the property has
expired, the respondent
has failed to show that he has any other
right in law to occupy the property
,
thus rendering him an unlawful occupier.
The fact that the applicant did not mention its common law right of
ownership, which entitles
it to enforce the remedy of
rei
vindicatio,
is of no moment.
Inelegant drafting or inattention to accuracy in drafting does not
alter the fact that the applicant’s common
law rights were
inherently apparent from what was pleaded in Founding.
[19]
Section 4(7) of PIE stipulates that where an unlawful occupier has
occupied the land in question for more
than six months, the court is
required to consider all the relevant circumstances in order to
decide whether it is just and equitable
to grant an order for
eviction. The respondent in this matter has utilised the land
belonging to the applicant free of charge for
years, and has made no
attempt to either enter into a new lease agreement or pay to the
applicant the very nominal amount stipulated
as rental, in spite of
the Executive Committee being properly and lawfully elected in 2019.
He tenders a spurious explanation for
such non-payment and proffers
unmeritorious defences in support of his request that the application
be dismissed. What the respondent,
in effect, asks is that the court
should deny the applicant’s legitimate right to access and
possession of its property,
while allowing the respondent to continue
with his unlawful occupation of the property in order to improperly
benefit himself financially.
In my view, the facts of this matter, as
set out earlier, present the “appropriate circumstances”
referred to in the
preamble of PIE, warranting the granting of an
eviction order against the first respondent. I am, consequently, of
the view that
the applicant is entitled to the relief it seeks.
[20]
In the circumstances I make the following order:
20.1 The
first respondent and all persons occupying through him are declared
to be unlawful occupiers of Camp 10 of
Area 1245, Oppermansgronde in
Extent 248 hectares, district Koffiefontein, Free State Province as
well as Units 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19 and 20 of the
Remainder of the Farm Rorichshoop No. 191, in extent 2585,3600
hectares, district Fauresmith,
Free State Province;
20.2 The
first respondent and all other persons occupying the property through
him are ordered to vacate the property
no later than Sixty (60) days
from the date of this order;
20.3 The
first respondent and all other persons occupying the property through
him are ordered to remove all movable
property belonging to them from
the property no later than Sixty (60) days from the date of this
order;
20.4 In the
event of the first respondent or any of the occupiers occupying
through him, failing to comply with this
order, the Sheriff of the
court is authorised and directed to evict them, and remove any
movable property belonging to them from
the property forthwith;
20.5 The
first respondent is ordered to pay the costs of this application.
S
NAIDOO J
On
Behalf of the Applicants:
Adv S
Grobler SC
Instructed
by:
Kramer
Weihmann Incorporated
24
Barnes Street
West
Dene
Bloemfontein
(Ref:
J Nortje/N06035/cup)
On
Behalf of the 1
st
Respondent:
Adv R
Van Der Merwe
Instructed
by:
EG
Cooper Majiedt Inc
17
Third Avenue
Westdene
Bloemfontein
(Ref:
NO/ /EA0899)