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[2022] ZAECBHC 31
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MEC for Department of Public Works and Infrastructure, Eastern Cape Province v Lugalo and Others (845/2021) [2022] ZAECBHC 31 (14 October 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: BHISHO]
CASE NO. 845/2021
In the matter between:
MEC FOR DEPARTMENT OF
PUBLIC WORKS
AND INFRASTRUCTURE,
EASTERN CAPE PROVINCE
Applicant
and
THAMI LUGALO
1
st
Respondent
ZOLEKA
NGUBO
2
nd
Respondent
MAMNGWEVU
3
rd
Respondent
ALL UNKNOWN PERSONS,
UNLAWFULLY AND/OR
ILLEGALLY,
TRESPASSERD, INVADED AND OCCUPIED
ERF 9
HAMBURG
4
th
Respondent
JUDGMENT
JOLWANA J
:
[1]
An
ex-tempore
judgment was granted and an order was made
against the respondents on 14 April 2022. The regurgitation of the
reasons given therein
would serve no purpose. The respondents have
since filed an application for leave to appeal. I do not intend to
traverse or reproduce
the various grounds of appeal relied upon as
the basis for the intended appeal. Considering them together and also
with the heads
of argument filed by counsel for the applicant, it
becomes apparent that the central issue throughout has its nub on the
various
contentions about the PIE Act. There are a few other grounds
that are unrelated to the PIE Act. However, I hold the view that on
their own they do not take the matter any farther. In fact they,
alone, would not found a basis for the granting of the application
for leave to appeal. It is for that reason that I will not deal with
some of them. I refer to the parties as they are in the main
judgment
for the ease of reading.
[2]
One such ground is the issue relating to the citation of the
so-called fourth respondent and the orders made in the main judgment
to the extent that reference is made to it. In the application for
leave to appeal, and in the notice of acting filed by their
attorneys, the fourth respondent appears. This suggests that they
also represent the fourth respondent. However, and very importantly,
nobody has been identified as belonging to that category of
respondents and on whose behalf it is submitted that he was not
properly
served with the papers due to the fact that the citation
itself was improper.
[3]
That such litigant in fact does not exist becomes clear first in the
return of service. The first respondent accepted service
of the
papers on behalf of the fourth respondent. It goes further than that.
The first respondent identified himself in the opposing
affidavit as
“customary law owner of the land in issue” amongst other
things. He then explains that the second respondent
is one and the
same person as the third respondent. What this boils down to is that
this matter is, as it was from the outset,
essentially about the
first and second respondents. Whoever the reference to the fourth
respondent was intended to be in the citation,
there was no
submission that that person in fact exists in this case. If raising
this issue in the application for leave to appeal
was merely intended
to point out a patent error, that would be well and good. However, if
it was to bolster a case for the granting
of the application for
leave to appeal, it is unsustainable.
[4]
I turn now to deal with the issue of the PIE Act. The main contention
as it relates to the PIE Act is that the court should
have applied
the PIE Act and dismissed the application on the basis that the PIE
Act is applicable to this matter and that it has
not been complied
with. I disagree for the reasons that follow.
[5]
Perhaps the preamble to the PIE Act itself is a good starting point.
It reads:
“
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.”
[6]
It is apparent from the above even before one has regard to the
actual provisions of section 4, that the Act itself is directed
at
regulating evictions at homes or households. It also provides for a
case by case approach with emphasis on the vulnerable groups
such as
the elderly, children, and disabled persons and in particular
households headed by women. These are the people that the
courts are
directed to ensure that they are not rendered homeless without proper
procedures being observed and an effort made to
ensure that they do
not end up in the streets at the whim of the land owner or person in
charge thereof.
[7]
On this understanding, the submission that the PIE Act especially the
procedures provided for therein, is applicable to structures
that may
become homes down the line is incomprehensible. Such understanding in
fact goes against the very purpose of the PIE Act
which is clearly to
ensure that no one is evicted from their home without due process. A
structure that is still under construction,
at whatever level it may
be, cannot, by any stretch of imagination, be the home referred to in
the PIE Act. The PIE Act is couched
in terms that, inter alia, create
an opportunity for those who are being evicted, to bring to the
attention of the court, their
individual and often peculiar
circumstances. Such circumstances must then be considered by the
court which may then grant a just
and equitable order having had
regard to those circumstances.
[8]
In
Ndlovu v Ngcobo, Bekker and Another v Jika
[2002] 4 All SA
384
(SCA) Harms JA articulated some of these principles as follows:
“
[19]
Another material consideration is that of the evidential onus.
Provided the procedural requirements have been met, the owner
is
entitled to approach the court on the basis of ownership and the
respondent’s unlawful occupation. Unless the occupier
opposes
and discloses circumstances relevant to the eviction order, the owner
in principle, will be entitled to an order for eviction.
Relevant
circumstances are nearly without fail facts within the exclusive
knowledge of the occupier and it cannot be expected of
an owner, to
negative in advance facts not known to him and not in issue between
the parties. Whether the ultimate onus will be
on the owner or the
occupier we need not now decide.
[20] A further area of
concern is the lease of commercial properties. Does it fall within
the purview of PIE?
Prima facie
the answer would be in the
affirmative because of the definition of ‘building or
structure’ which –
‘
includes
any hut, shack, tent or similar structure or any other form of
temporary or permanent dwelling or shelter.’
The word ‘includes’
is as a general rule a term of extension. It may, however, depending
upon the circumstances, be
one of exhaustive definition and
synonymous with ‘comprise’.
R
v Debele
1956 (4) SA
570
(A) 575. In this instance, having regard to the history of the
enactment with, as already pointed out, its roots in s 26(3) of the
Constitution which is concerned with rights to one’s home, the
preamble to PIE which emphasises the right to one’s
home and
the interests of vulnerable persons, the buildings listed and the
fact that one is ultimately concerned with ‘any
other form of
temporary or permanent dwelling or shelter’, the ineluctable
conclusion is that, subject to the
eiusdem generis
–
rule, the term was used exhaustively. It follows that
buildings or
structures that do not perform the function of a form of dwelling or
shelter for humans do not fall under PIE
and since juristic
persons do not have dwellings, their unlawful possession is similarly
not protected by PIE.” (My emphasis).
[9]
There was no evidence of the respondents living or staying on the
property or the property being their home or shelter. None
whatsoever. The structures that were still under construction were
neither homes nor dwellings that could fall under the ambit
of the
PIE Act. In the absence of such evidence and the respondents having
failed to provide such evidence, the considerations
under the PIE Act
cannot arise. I must emphasize that the onus to provide proof that
there were homes or dwellings on the property,
not structures still
under construction, rested with the respondents themselves. On the
contrary, the applicant provided evidence
of the fact that the
structures that were there were still under construction and the
respondents did not reside on the property
and most importantly there
were no structures of any form which could be their homes.
[10]
For the reasons stated in the
ex-tempore
judgment and the
legal position as further explained above I am not of the opinion
that the appeal would have a reasonable prospect
of success. There is
also no other compelling reason why the appeal should be heard.
Therefore the application for leave to appeal
stands to be dismissed.
[11]
In the result, the following order shall issue:
1.
The application for leave to appeal is dismissed with costs.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicant: L. Brauns
Instructed
by: STATE ATTORNEY
EAST
LONDON
c/o
SHARED LEGAL SERVICES
KING
WILLIAMS TOWN
Counsel
for the respondents: Z. Madukuda
Instructed
by: Tshingana & Associates Attorneys
EAST
LONDON
Date
heard: 14 October 2022
Date
delivered: 14 October 2022