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[2022] ZAFSHC 49
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Masilonyana Local Municipality v Kokoane and Others (4140/2020) [2022] ZAFSHC 49 (8 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case Number:
4140/2020
In the matter
between:
MASILONYANA LOCAL
MUNICIPALITY
Applicant
And
LETSHETLO KOKOANE
AND OTHERS
Respondents
HEARD
ON:
This
application was
determined on the
basis of written arguments instead of an oral hearing.
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be 14H00 on 08 MARCH
2021.
[1]
The respondents seek leave to appeal the judgment and the order that
I made
on 10 June 2021 in terms of which I confirmed the
rule nisi
granted by Mbhele, J on 28 October 2020.
[2]
The precursor of the application was an urgent application in terms
of which
on 28 October 2020 Mbhele J granted a
rule nisi
calling
upon the respondents to show cause on 10 December 2020 why an order
interdicting and restraining the respondents from erecting
and
occupying structures on the applicantâs land and from trespassing
on the said land (Part A) should not be made final pending
the final
adjudication of an eviction application (PART B).
[3]
After various postponements (10 December 2020, 28 January 2021, 15
April 2021 and 13
May 2021) both the application for the
determination of the return date and the eviction proceedings served
before me on 13 May 2021
the judgment was handed down on 10 June
2021.
[4]
Written heads of argument were handed in by concurrence of the
parties
for this application to be
determined without oral hearing, I donât deem it necessary to
rehash them verbatim in this judgment except
to refer to the relevant
parts thereof
.
[5]
The respondentsâ grounds for leave to appeal are embodied in a
lengthy notice
of application for leave to
appeal containing
about 9
grounds which are essentially that: the court
should
not have entertained and decided the urgent eviction application but
ought to have dismissed it for lack of urgency with costs;
the court
should not have made a final order for the eviction of the
respondents but ought to have treated the matter as an interim
order
pending the final determination of the final order by another court;
the court dealt with the confirmation of the interim order
(PART A)
and failed to decide the eviction application (PART B) and it ought
to have considered and decided both. (Paragraphs 1 to
3).
[6]
As regards the issue of urgency or the absence thereof, the
respondentsâ argument
in this regard is misconstrued. A court is
not entitled to dismiss an application where urgency has not been
established but to struck
the matter from the roll. As correctly
pointed out by the applicantâs counsel at the time when this
application was heard the issue
of urgency was moot, Mbhele J had
already determined in the urgent court that the matter was urgent.
See paragraph 3 of the interim
order. The respondents have proffered
contradictory
averments
relating to the hearing of the eviction proceedings. It is submitted
that the court should have only dealt with the proceedings relating
to the confirmation of interim order pending the final determination
of the eviction order by another court. It is also argued the
court
should have dealt with both the confirmation of the interim order and
the eviction application. The submissions are nonsensical.
It was
common cause that the issues to be determined were in relation to
both the confirmation of the interim order and eviction
proceedings.
See page 1 to 2 at paragraph 1 to 2 of the applicantâs heads of
argument
[1]
and page 1 at
paragraph 1 of the respondentâs written heads of argument.
[2]
[7]
The rest of the grounds for appeal, paragraph 4 to 9 are merely a
regurgitation of the
submissions made at the hearing of this matter.
Iâm of the view that in my written judgment I have addressed the
issues raised
in these grounds and in that regard, Iâm not
persuaded that there
are reasonable prospects
of succeeding with these grounds on appeal.
[8]
The omission of the dates upon which the respondents are to vacate
the land and the
date on which the eviction order may be carried out
by the Sheriff in the event of the respondentsâ failure to vacate
the land
was an oversight. Iâm thus inclined to vary the order to
be in line with my conclusions in paragraphs 14 to 18 of my judgment.
[9]
In the result the following order is made:
1.
The application for
leave to appeal to the Supreme Court of Appeal or the full bench of
this division against my judgment granted
on 10 June 2021 is
dismissed.
2.
In terms of Rule 42
(1)(b) of the Uniform Rules of Court the order granted on 10 June
2021 is corrected by the insertion of paragraph
â3ââ as
follows:
â
3.
Any person forming part of the Respondents occupying any home,
dwelling, abode, shack and/or a structure on the land described
as
the Remaining extent of the farm number 720, Brandfort Townlands,
Brandfort Regional Division, Free State Province, are hereby
ordered
to demolish, remove any structures and to vacate the said land by the
08
th
of April
2022, alternatively, the Sheriff of this court is authorized to carry
out the eviction of any person forming part of the
Respondents and to
demolish and remove any home, dwelling, abode, shack and/or a
structure on the said land.â
NS
DANISO, J
Counsel for the
respondents:
Adv. R. Ozoemena
UFS LAW CLINIC
BLOEMFONTEIN
Counsel for the
applicants:
Adv. L.A. Roux
Peyper Attorneys
BLOEMFONTEIN
[1]
â
This
is an opposed application for evictionâ¦the applicant is applying
for the confirmation of the
rule
nisi
issued
on 28 October 2020 and the relief as set out in Part B of the Notice
of Motion.
[2]
â
This
matter, we state from the outset it involves two critical issues
namely: (a) the confirmation of the rule nisi and (b) the
determination of the eviction application as found in Part B of the
Notice of Motionâ¦â