Brief Summary

Property Law — Unlawful occupation — Application for eviction of unlawful occupiers — Applicant, Redefine Properties Ltd, sought to evict unlawful occupiers from Adjacent Property owned by the National Government, citing health and safety hazards affecting its industrial site — Respondents contended that the Gauteng Provincial Government was responsible for the Adjacent Property and raised objections of misjoinder and non-joinder — Court held that the National Government, as nominal owner, had an obligation to address the nuisance caused by unlawful occupation, and directed the respondents to take necessary remedial action.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an opposed motion application in the High Court of South Africa, Gauteng Division, Pretoria. The applicant sought relief arising from alleged unlawful occupation and nuisance conditions on an immovable property neighbouring its own property in Midrand, Gauteng.

The applicant was Redefine Properties Ltd, the registered owner of Erf 838 Halfway House Extension 3 Township, Registration Division I.R., Gauteng Province (“the Property”). The respondents were the Government of the Republic of South Africa (cited as the first respondent, and treated as the National Government), the Minister of Agriculture, Land Reform and Rural Development (second respondent), and the Minister of Public Works and Infrastructure (third respondent).

The matter had a notable procedural history. The application was initially launched on an urgent basis but was struck from the urgent roll on 29 June 2021 for lack of urgency. The applicant had also previously attempted to obtain relief in December 2020 by bringing proceedings against Gauteng provincial functionaries (two MECs), but that application was not proceeded with after the applicant was informed it had sued the wrong parties. The present application was heard on 10 November 2021, and judgment was handed down electronically on 9 February 2022.

The general subject-matter of the dispute concerned which sphere of government bore responsibility, as owner/custodian of the adjacent land, to address alleged unlawful occupation and/or abate a nuisance affecting the applicant’s use and enjoyment of its property. The applicant’s main relief sought a direction compelling the first respondent to institute eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“the PIE Act”), alternatively to remove or remediate the nuisance.

2. Material Facts

It was common cause that the applicant owned the Property and that it was used as an industrial site by a tenant operating a production plant for aerosol products. The Property directly bordered an adjacent parcel of land, described as Portion 1 of Holding Number 65, Halfway House Estate Agricultural Holdings, Midrand-Rabie Ridge MSS, Registration Division IR, Gauteng Province, held under Title Deed T86105/1988 (“the Adjacent Property”). The Adjacent Property was described as vacant land, save for the alleged occupation and related activities.

The applicant alleged that unlawful occupiers had been present on the Adjacent Property since 2018, and that there was no running water, sewage disposal, or amenities on that land. It relied on harms it said emanated from the Adjacent Property, including interference with stormwater drainage, open fires/burning of materials, smoke affecting operations, and safety risks due to the storage of hazardous substances (gas and alcohol) on the applicant’s Property. The applicant asserted that these conditions created a health hazard, nuisance, and fire hazard, and that it faced potential financial harm if its tenant terminated the lease because of the conditions next door.

From March 2018, the applicant (through correspondence) engaged Gauteng provincial functionaries regarding the conditions on the Adjacent Property. It was told, at stages, that the Adjacent Property had been expropriated for a roadway, and that provincial departments were custodians of vested property. No effective steps were taken to resolve the problem, leading to litigation attempts.

A core factual contest related to the Adjacent Property’s administration and responsibility. The respondents appeared to accept that the Adjacent Property was registered in the name of the National Government, but contended that responsibility lay with the Gauteng Provincial Government, because the land had been “vested” or was in the process of being vested in the province in terms of item 28(1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, read with section 239 of the Constitution of the Republic of South Africa, 1993. In a supplementary affidavit, the respondents stated that the Adjacent Property had been “finally and officially vested” in the Gauteng Provincial Government and that the Registrar of Deeds was being asked to endorse the title deed accordingly, with provincial government responsible for lodging relevant documents.

The respondents also disputed the characterisation of the situation as an unlawful occupation requiring eviction. They contended that the alleged activities were periodic refuse recycling and/or dumping typical of the area, and that there were no permanent structures amounting to an informal settlement, making eviction relief inappropriate or impossible to enforce. They further suggested that complaints ought to have been directed to municipal enforcement structures, although the court noted that municipal powers to abate nuisances do not preclude a neighbouring owner from approaching a court for relief against another owner.

3. Legal Issues

The central legal questions the court was required to determine were, first, which sphere of government bore responsibility for the Adjacent Property for purposes of the relief sought, given the respondents’ reliance on “vesting” under item 28(1) of Schedule 6. This was primarily a question of law and the application of law to fact, turning on the legal effect of a vesting certificate and whether responsibility shifted before registration/endorsement by the Registrar of Deeds.

Second, the court had to determine whether the applicant was entitled to relief compelling the respondents (as asserted owners/custodians) to institute eviction proceedings under the PIE Act, or whether the appropriate remedy lay instead in neighbour-law principles, particularly the law of nuisance, and the court’s discretionary power to grant equitable relief regulating neighbour relations. This involved application of legal standards to factual findings and required an evaluative determination of unreasonableness in nuisance, as well as a discretionary assessment of what relief would be reasonable and equitable in the circumstances.

Third, the court had to decide whether, on the facts it accepted, a private nuisance existed and what form of remedial order could be granted without disregarding broader constitutional considerations, including the property right in section 25 and housing-related considerations in section 26, together with the statutory framework of PIE.

4. Court’s Reasoning

The court approached the dispute as one implicating ownership responsibilities, the relationship between neighbours, and the regulation of land use. It reiterated that ownership is not absolute and may be limited by constitutional provisions, statute, and common-law principles, including the body of law governing relationships between neighbouring owners. In that framework, the court identified nuisance as a key neighbour-law limitation: a private nuisance involves interference with a neighbour’s use and enjoyment of land, particularly interference with the comfort of human existence on the land, and is actionable only when the interference is unreasonable, assessed objectively on the circumstances and as a factual enquiry.

A major preliminary point concerned the respondents’ defence that the Adjacent Property had been vested in the Gauteng Provincial Government, such that national respondents were allegedly “precluded” from dealing with it and bore no obligations. The court interpreted item 28(1) of Schedule 6 as a mechanism that facilitates vesting and registration of state immovable property between spheres of government through a certificate and subsequent endorsement/entry by the Registrar of Deeds. The court reasoned that the vesting process is not complete merely upon issuance of a certificate. In its view, the process is finalised only once the Registrar makes the required entries or endorsements in the deeds records to register the property in the name of the receiving government.

On that interpretation, the court held that pending vesting does not create a state of limbo that leaves third parties without an accountable owner. Absent proof that the Registrar had completed the necessary endorsements, the Adjacent Property’s ownership (and the obligations associated with ownership) remained with the National Government. The court therefore rejected the respondents’ contention that legal responsibility shifted immediately upon certification, at least as against a third party such as the applicant.

Turning to the requested eviction relief, the court accepted that, as owner, the National Government would generally have rights and obligations comparable to private landowners, including addressing unlawful occupation and nuisance on its land. However, the court did not consider it appropriate to direct the respondents to evict the occupiers. It viewed eviction as not necessarily a suitable solution in the circumstances, particularly given the nature of the dispute as one fundamentally grounded in the reciprocal rights and obligations of neighbouring owners and the need for an equitable resolution. It also had regard to the constitutional context, including the need to balance rights and interests as described in constitutional eviction jurisprudence, and the PIE Act’s role in protecting unlawful occupiers against arbitrary evictions.

The court then assessed whether a nuisance had been established on the evidence it accepted. It found that the applicant had proven a private nuisance occurring on the Adjacent Property that interfered with the applicant’s use and enjoyment of its Property and with the tenant’s physical comfort, convenience, and wellbeing. It characterised the interference as beyond what the applicant or its tenant could reasonably be expected to tolerate, and concluded that the nuisance should be remedied. While the court noted that municipal and legislative nuisance-abatement mechanisms exist, it treated that as not precluding a court-based remedy in neighbour law.

In crafting relief, the court emphasised that it had a wide discretion in neighbour-law disputes to grant the most reasonable and equitable order. It also stated that it could not ignore the interests and constitutional values implicated for persons not before the court, including the “unlawful occupiers,” and it referred to the Constitution’s foundational values such as human dignity, equality, and the advancement of rights and freedoms. These considerations influenced the form of relief: rather than compelling eviction proceedings as the primary remedy, the court ordered the owner (the National Government) to halt/remediate the nuisance in a manner it deemed fit, including through eviction proceedings if chosen, but in compliance with applicable legislative instruments.

The court further sought to prevent repeated litigation and practical frustration by requiring a compliance report and granting the applicant leave to approach the court on the same papers, supplemented as necessary, including for contempt relief if the order was not obeyed.

On costs, the court held that costs should follow the result. Although substantive relief was granted only against the first respondent, the second and third respondents were not treated as having achieved a separate success because all respondents jointly opposed the application on the same bases with shared representation. The court also considered the applicant’s efforts to resolve the dispute without litigation and the lack of effective action by government. It ordered costs against the first respondent on the attorney-and-client scale, as sought by the applicant.

5. Outcome and Relief

The court granted relief directing the first respondent (the National Government) to take steps within 60 days to remediate the nuisance on the Adjacent Property that interfered with the applicant’s use and enjoyment of its Property, and to provide a written report to the applicant within 15 days after taking such steps.

The court ordered that remediation must reasonably comply with applicable health and safety legislation and must ensure that the use and occupation of the Adjacent Property does not pose a threat to the safety and wellbeing of the applicant, its tenants, their employees, and lawful users/occupiers of the Adjacent Property. It further ordered the first respondent to take reasonable steps to prevent recurrence of the nuisance in the future.

The applicant was granted leave to return to court on the same papers (supplemented as necessary) to seek contempt orders if the first respondent failed timeously to comply with the remedial obligations.

The first respondent was ordered to pay the costs of the application on the attorney-and-client scale.

Cases Cited

De Charmoy v Day Star Hatchery (Pty) Ltd 1967 4 SA 188 (D).

Diepsloot Residents & Landowners Association v Administrator Transvaal 1993 1 All SA 132 (T); 1993 1 SA 577 (T); 1993 2 All SA 59 (T); 1993 3 SA 49 (T).

Diepsloot Residents’ & Landowners’ Association v Administrator, Transvaal 1994 2 All SA 299 (A); 1994 3 SA 336 (A).

Gien v Gien 1979 2 SA 1113 (T).

Pappalardo v Hau 2010 2 All SA 338 (SCA).

Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC); 2004 12 BCLR 1268 (CC).

Regal v African Superslate (Pty) Ltd 1963 1 SA 102 (A).

Three Rivers Ratepayers Association and Others v Northern Metropolitan 2000 4 SA 377 (W).

Yellow Star Properties 1020 (Pty) Ltd v Department of Development Planning and Local Government (Gauteng) (549/2007) [2009] ZASCA 25; 2009 (3) SA 577 (SCA); [2009] 3 All SA 475 (SCA) (27 March 2009).

Legislation Cited

Constitution of the Republic of South Africa, 1996, including section 1, section 25, section 26, and item 28(1) of Schedule 6.

Constitution of the Republic of South Africa 200 of 1993, including section 239.

Expropriation Act 63 of 1975.

Less Formal Township Establishment Act 113 of 1991.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court held that, in terms of item 28(1) of Schedule 6 to the Constitution, the “vesting” of state immovable property between spheres of government is not completed merely upon issuance of a vesting certificate. The vesting process is completed when the Registrar of Deeds makes the necessary entries or endorsements to register the property in the name of the receiving government. Absent proof of such registration/endorsement, ownership and the obligations of ownership remained with the National Government.

The court further held that the applicant had established the existence of a private nuisance on the Adjacent Property that unreasonably interfered with the applicant’s use and enjoyment of its Property. While the National Government, as owner, bore responsibility to address the situation, the court did not grant an order compelling eviction proceedings as the primary remedy. Instead, it exercised its discretion to order remediation of the nuisance, allowing the first respondent to select lawful means (including possible eviction proceedings compliant with applicable legislation) to halt and prevent the nuisance.

The court ordered time-bound remedial steps, reporting obligations, preventative measures against recurrence, leave to pursue contempt proceedings on the same papers if necessary, and attorney-and-client costs against the first respondent.

LEGAL PRINCIPLES

The judgment applied the principle that ownership of land is not absolute and is limited by constitutional, statutory, and common-law constraints. In neighbour-law contexts, these constraints include reciprocal obligations between neighbouring owners and the court’s capacity to regulate competing uses of land to protect health, wellbeing, comfort, and property interests.

In relation to nuisance, the court applied the common-law principle that a private nuisance consists of an interference with a neighbour’s use and enjoyment of land through interference with the comfort of human existence on the land. Such interference is actionable only if it is unreasonable, assessed objectively in light of all relevant circumstances, and the inquiry is fact-specific.

The judgment reaffirmed that courts have a wide discretion in neighbour-law disputes to craft orders that are reasonable and equitable, rather than mechanically granting the specific form of relief requested. In exercising that discretion, the court considered constitutional values, including the foundational values of dignity and the advancement of rights, and acknowledged the need to be attentive to the interests of persons not directly before the court.

On the constitutional and statutory interface, the judgment recognised that eviction-related relief implicates the balancing of rights and interests, including the property right (section 25) and protections against arbitrary evictions (section 26), with the PIE Act providing a statutory framework safeguarding unlawful occupiers from arbitrary eviction. The court’s remedial approach reflected sensitivity to that framework by directing remediation compliant with applicable legislation rather than ordering eviction as the immediate and exclusive remedy.

Finally, the court articulated a legal principle concerning state-asset “vesting” under transitional constitutional provisions: a certificate issued under item 28(1) of Schedule 6 facilitates the process, but does not complete the vesting against third parties until the Registrar of Deeds records the vesting by endorsement/registration in the deeds records.

Redefine Properties Ltd v Government of the Republic of South Africa and Others (29258/2021) [2022] ZAGPPHC 62; 2023 (1) SA 226 (GP) (9 February 2022)