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[2022] ZANCHC 52
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GA-Segonyana Local Municipality v All Unidentified and Unkown Persons Occupying or Intending to Unlawfully Occupy ERF [....] Kuruman (Depicted on Annexed Aerial Phtograph by Points A, B, C, D, D, E, F and G) and Others (1773/2021) [2022] ZANCHC 52 (16 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: 1773/2021
Date
Heard: 05/08/2022
Date
delivered: 16/09/2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:-
GA-SEGONYANA
LOCAL MUNICIPALITY
APPLICANT
and
ALL
UNIDENTIFIED AND UNKNOWN PERSONS
OCCUPYING
OR INTENDING TO UNLAWFULLY
OCCUPY
ERF [….], KURUMAN (DEPICTED ON
ANNEXED
AERIAL PHOTOGRAPH
BY
POINTS A, B, C, D, E, F AND G)
FIRST
RESPONDENT
“
CHIEF
SITLHODI”
SECOND
RESPONDENT
DEPARTMENT
OF HUMAN SETTLEMENTS,
NORTHERN
CAPE PROVINCE
THIRD RESPONDENT
Coram:
Stanton, AJ
JUDGMENT
INTRODUCTION:-
[1]
This application was issued on an urgent and
ex parte
basis in
terms of the provisions of section 5(2) of the Prevention of Illegal
Eviction and Unlawful Occupation of Land Act, Act
19 of 1998 (“the
Act”) for the purpose of obtaining the following relief:-
1.1
Firstly, for the Court to furnish directions pertaining to the notice
that should be given to the illegal
occupants to advise them of the
applicant’s intention to obtain eviction orders as well as to
obtain urgent relief to interdict
the respondents from invading
municipal land; and
1.2
Secondly, to obtain final relief in respect of the interdict and to
evict the respondents from the land.
[2]
The applicant approached the Court on the grounds contemplated in
sections 6(1)(a)
and (b) of the Act.
[3]
The rule
nisi
was granted on 27 August 2021.
[4]
The applicant now seeks a final order for:-
4.1
The first and second respondents to
demolish and remove all structures and other properties (including
building material) erected
on the Portion of Erf [….],
Kuruman, marked and depicted by the figures “
A”,
“B”, “C”, D”, “E”, “F”
and “G”
on annexure
“FA2” to the Notice of Motion (“the land”);
4.2
The first and second respondents to
vacate the land and demolish and remove all structures and/or
buildings erected thereon, including
building materials and their
belongings; and
4.3
the Sheriff of this Court to be authorised, with the assistance of
the South African Police Service, or a
contractor employed by the
Sheriff, if needs be, and in the event that the first and second
respondents fail to comply with the
orders set out in paragraph 4.1
and 4.2, to evict the first respondents from the land and to demolish
and remove all structures
and buildings erected and constructed on
the land.
GROUNDS
OF OPPOSITION:-
[5]
The first respondents ostensibly opposed the application and an
answering affidavit,
deposed to by Mr Oageng Thubisi, was filed on
their behalf.
[6]
The gist of the first respondents’ opposition is that:-
6.1
The applicant is not the registered owner of the land;
6.2
The land is incorrectly identified and includes Erven [....] and
[....]. As a result, the applicant
is seeking orders that could
effectively evict all the occupiers immediately adjacent to Erf [….],
Kuruman, including the
occupants of Erven [....] and [....];
6.3
27 families or households have been occupying the land since the
beginning of January 2021, which land includes
the broader “
Promise
Land Informal Settlement
”, the “
current Prison
Site Promise Land”
and Erven [....] and [....], based
on the consent granted by the applicant during 2011;
6.4
The applicant is responsible to place the personal circumstances of
the occupants before the Court, which
it did not do, and accordingly,
the applicant failed to substantiate the allegations referred to in
section 4 of the Act.
POINT
IN LIMINE
-
LOCUS STANDI
:-
[7]
In reply, the applicant raised a point
in limine
that Mr O
Thubisi does not have the requisite
locus standi
to oppose the
application, in his personal capacity, or on behalf of the first
respondents, by virtue of the following:-
7.1
Mr O Thubisi is a resident on an adjacent portion of land and can
therefore not be affected by the relief
claimed in the application;
and
7.2
Mr O Thubisi does not confirm that he was authorised by the Prison
Site Promise Land Informal Settlement Committee
to depose to the
affidavit on the first respondents’ behalf. Furthermore,
he failed to prove that he is the duly authorised
representative of
this committee or that the committee is the representative of the
persons identified as the first respondent.
[8]
According to Mr O Thubisi, he resides on “
Promise Land
Informal Settlement”,
which is referred to by the community
as “
Prison Site Promise Land Informal Settlement and it is
situated on the Portion of Erf [….] that is relevant for the
purposes
of this application.”
In the written
motivation by the South African Human Rights Commission, attached to
the respondents’ condonation application,
it is, however,
stated that:-
8.1
Mr O Thubisi resides at [....] Promise Land Kuruman; and
8.2
The land, which he and his community “
believe
” is
Promise Land and which they have been occupying since 2009, belongs
to the second respondent, who gave them consent to
occupy. Mr O
Thubisi, in the answering affidavit, however, denies that the first
respondents are occupying the land as a
result of the consent granted
to them by the second respondent.
[9]
The applicant describes the land in question with precision as “
The
Portion of Erf [….], marked and depicted by the figures “A”,
“B”, “C”, D”,
“E”, “F”
and “G”” on annexure “FA2” to the
Notice of Motion”,
which is situated between the Kuruman
Prison and the informal settlement known as “Promise Land”.
[10]
In support of the allegation by the first respondents that the
applicant is seeking orders that
could effectively evict all the
occupiers immediately adjacent to Erf [….], Kuruman, including
Erven [....] and [....],
reference is made to a “
map
obtained from the Surveyor General website indicating that the
portion marked A, B, C and D are part of two separate properties.
The one property is known as Erf [....] which is adjacent to
Erf [….] and the other property is known as Erf [....].
See
map marked OT1 annexed hereto.”
[11]
The first respondents, however, failed to attach the map to the
answering affidavit and, at the
date of the argument of the matter,
still had not provided the Court with a copy thereof.
[12]
Mr O Thubisi has failed to present any evidence that he is an
occupant of the land or that he
would be affected by the relief
sought. In my view, the land accordingly does not include
“
Promise Land”
or the “
Promised Land
Informal Settlement.”
[13]
Mr O Thubisi states that he deposes to the affidavit on behalf of
himself and his family and
that he “
was authorised to act as
a representative …of the respondents at the 26 November 2021
proceedings.
” The failure to attach the minutes of
the 26 November 2021 meeting or the resolution authorising Mr O
Thubisi to depose
to the answering affidavit on behalf of the
respondents, is fatal to this allegation.
[14]
I accordingly find that Mr O Thubisi lacks the necessary
locus
standi
to oppose the application in his personal capacity or on
behalf of the first respondents.
[15]
Despite my finding above, I deem it necessary to deal with the merits
of the application.
APPLICABLE
LAW:-
[16]
The applicant launched this application based on the provisions of
sections 6(1)(a) and (b) of
the Act.
[17]
An unlawful occupier who may be evicted in terms of the provisions of
the Act, is defined 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."
An
owner is defined as “
the
registered owner of land, including an organ of state
”
[1]
[18]
The Act balances two interests that are in conflict, namely the
ownership rights of land owners
and the right of access to housing of
those in occupation of premises. The touchstone for the balance
is the concept of justice
and equity. What is just and
equitable must relate not only to those who occupy land unlawfully,
but also to the owner of
the land.
[19]
The Act provides guidance to the courts in determining the approach
to evictions now required
by section 26(3) of the Constitution. Its
central operative provisions are section 4, which deals with
evictions sought by
owners or persons in charge of property, and
section 6, which is concerned with eviction proceedings brought by
Organs of State.
[20]
Sections 4(6) to 4(9) of the Act state as follows:-
“
(6)
If an unlawful occupier has occupied the land in question for less
than six months at the time when the proceedings
are initiated, a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering
all the relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed
by women.
(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time when
the proceedings are initiated, a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to
do so, after considering all the relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant
to a mortgage, whether land has been made
available or can reasonably be made available by a municipality or
other organ of state
or another land owner for the relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children,
disabled persons and households headed by women.
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that
no valid defence has been raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and
determine-
(a)
a just and equitable date on
which the unlawful occupier must vacate the land under the
circumstances/ and
(b)
the date on which an eviction
order may be carried out if the unlawful occupier has
not vacated
the land on the date contemplated in
paragraph (a).
(9)
In determining a just and equitable date contemplated in subsection
(8) the court must have regard to
all relevant factors, including the
period the unlawful occupier and his or her family have resided on
the land in question."
[21]
Section 6 of the Act provides that:-
“
(1)
An organ of State may institute proceedings for the
eviction of an unlawful occupier from land which falls within
its
area of jurisdiction, except where the unlawful occupier is a
mortgagor and the land in question is sold in a sale of execution
pursuant to a mortgage, and the court may grant such an order
if it is just and equitable to do so, after considering
all
the relevant circumstances, and if-
(a)
the consent of that organ of
State is required for the erection of a building or structure on that
land or for the occupation of
the land, and the unlawful occupier is
occupying a building or structure on that land without such consent
having been obtained,·
or
(b)
it is in the public interest to
grant such an order.
(2)
For the purposes of this section, ''public interest includes the
interest of the health and safety of
those occupying the land and the
public in general.
(3)
In deciding whether it is just and equitable to grant an order for
eviction, the court must have regard
to -
(a)
the circumstances under which the
unlawful occupier occupied the land and erected the building or
structure;
(b)
the period the unlawful occupier
and his or her family have resided on the land in question; and
(c)
the availability to the unlawful
occupier of suitable alternative accommodation or land."
[22]
The Constitutional Court, in the matter of
Port
Elizabeth Municipality v Various Occupiers
[2]
,
with regard to the factors that should be considered when a court
deals with section 4 and 6 of the Act, held that:-
''Simply
put, the ordinary prerequisites for the Municipality to be in a
position to apply for an eviction order are that the occupation
is
unlawful and the structures are either unauthorised, or unhealthy or
unsafe. Contrary to the pre-constitutional position
however,
the mere establishment of these facts does not require the court to
make an eviction order. In terms of section
6, they merely
trigger the court's discretion. If they are proved, the court
then may (not must) grant an eviction order
if it is just and
equitable to do so. In making its decision it must take account
of all relevant circumstances, including
the manner in which
occupation was effected, its duration and the availability of
suitable alternative accommodation or land."
[3]
"There
is nothing in section 6 to suggest that the three specifically
identified circumstances are intended to be the only
ones to which
the court may refer in deciding what is just and equitable. They
are peremptory but not exhaustive. It
is clear both from the
open-ended way in which they are framed and from the width of
decision-making involved in the concept of
what is just and
equitable, that the court has a very wide mandate and must give due
consideration to all circumstances that might
be relevant. Thus
the particular vulnerability of occupiers referred to in section 4
(the elderly, children, disabled persons
and households headed by
women) could constitute a relevant circumstance under section 6.
Similarly, justice and equity would
take account of the extent
to which serious negotiations had taken place with equality of voice
for all concerned. What is
just and equitable could be affected
by the reasonableness of offers made in connection with suitable
alternative accommodation
or land, the time scales proposed relative
to the degree of disruption involved, and the willingness of the
occupiers to respond
to reasonable alternatives put before them.
The
combination of circumstances may be extremely intricate/ requiring a
nuanced appreciation of the specific situation in each
case.
Thus/though there might be a sad uniformity in the conditions
of homelessness and desperation which lead to unlawful
occupations/
on the one hand, and the frustration of landowners at being blocked
by intruders from enjoyment of their propef't½
on the other,
the actual details of the relationships involved are capable of
infinite variation. It is not easy to classify
the multitude of
places and relationships involved. This is precisely why, even
though unlawfulness is established, the eviction
process is not
automatic and why the courts are called upon to exercise a broad
judicial discretion on a case by case basis. Each
case
accordingly has to be decided not on generalities but in the light of
its own particular circumstances. Every situation
has its own
history, its own dynamics/ its own intractable elements that have to
be lived with (at least for the time being)
and its own creative
possibilities that have to be explored as far as reasonably possible.
The proper application of PIE
will therefore depend on the
facts of each case/ and each case may present different facts that
call for the adoption of different
approaches.
''
[4]
EVALUATION
OF THE EVIDENCE:-
[23]
It is evident that the applicant is the registered owner of the land,
which it holds by virtue
of deed of transfer T94/1924. Furthermore,
the applicant is also an organ of state that may approach the Court
for relief
in terms of section 6 of the Act.
[24]
It is undisputed that:-
24.1
The respondents do not have the applicant’s consent to erect
buildings and structures on the land or to occupy
the land, as is
required by the Spatial Planning and Land Use Management Act, Act 16
of 2013, read with the provisions of the National
Building
Regulations and Building Standards Act, Act 103 of 1977; and
24.2
The occupation of the land is a health and/or environmental risk as
the land is not serviced with water, electricity
and sewerage, which
exposes the first respondents to health and hygiene hazards.
[25]
On 25 August 2021, the applicant ascertained that 22 structures had
been erected on the land,
seven of which appeared to be occupied.
The occupants, however, refused to disclose their names and
identities, despite the
applicant attempting to verify same.
[26]
According to the respondents, 12 households are headed by women, 15
are unemployed, five occupants
are on pension, seven are employed in
unskilled, temporary and low income earning positions, one female
occupant is 49 years old
and disabled, the youngest household head is
22 years old, the oldest occupant is 76 years old and approximately
20 occupants are
children attending nearby schools. The first
respondents do not disclose the names of the respective occupants,
but attach
four confirmatory affidavits in support of these
allegations. Ms E Isaacs, one of the deponents, confirms that
she resides
in the Promise Land Informal Settlement, whilst the other
three deponents confirm that they reside on Prison Site Promise Land
Informal Settlement.
[27]
I can come to no other conclusion than that neither Mr O Thubisi nor
the deponents to the confirmatory
affidavits reside on the land.
Therefore, n
one
of the actual occupiers opposed the application.
Despite the statement in the
answering affidavit that
“
an
eviction will be severely traumatic… and may cause temporary
homelessness, undue hardship and inconvenience”
,
n
o personal circumstances were
disclosed to assist the Court.
The
actual occupants
elected
not to respond to the evidence by the applicant that there are no
elderly or disabled people occupying the land or households
headed by
women. No evidence has been placed before the Court to show
that the first respondents do not have alternative
accommodation
available to them.
None
of them claimed to be destitute or to have no alternative land to
reside on.
[28]
I am satisfied that no valid defence has been raised by the first
respondents and that it is
just and equitable to order their
eviction.
DATE
OF THE EVICTION ORDER
[29]
I am enjoined by the provisions of section 4(8) of the Act to, once I
am satisfied that the requirements
of the Act have been complied with
and that no valid defence has been raised by the unlawful occupiers,
grant an eviction order
and determine a just and equitable date upon
which an occupier or occupiers must vacate the land.
[30]
In determining a just and equitable date, the Court must have regard
to all relevant factors,
including the period that the unlawful
occupier or his or her family has resided on the land in question.
In this regard,
I take into account that the first respondents
or at least some of them, have been in occupation since July 2021. I
also
take into account the rights of children. Even though
there is no information in this regard before me, it must be assumed
that there are elderly and disabled persons amongst the said
families. One should furthermore be mindful of the social
consequences
of the occupants being evicted from the land and having
to find alternative accommodation within the Kuruman area within a
relatively
short space of time. Under the circumstances, I am
of the view that it would be just and equitable to grant the first
respondents
a reasonable opportunity to find alternative
accommodation and that, in the circumstances, a two-month period
would suffice
COSTS:-
[31]
Insofar as costs are concerned, the applicant requested a cost order
against the respondents
in the event of opposition. However, Mr
Louw, on behalf of the applicant, submitted during argument that
costs should follow
the event. In view of my finding that the
first and second respondents are not before court, it is appropriate
that no order
as to costs be made.
WHEREFORE
THE FOLLOWING ORDERS ARE MADE:-
1.
The first and second respondents are
ordered to demolish and remove all structures and other properties
(including building material)
erected on the Portion of Erf […],
Kuruman, marked and depicted by the figures “
A”,
“B”, “C”, D”, “E”, “F”
and “G”
on annexure
“FA2” to the Notice of Motion (“the land”),
within 60 (sixty) days after the date of this order;
2.
The first and second respondents are
ordered to vacate the land and to demolish and remove all structures
and/or buildings erected
thereon, including building materials and
their belongings within 60 (sixty) days after the date of this order;
and
3.
In the event that the first respondents
fail to comply with the orders set out in paragraph 1 and 2, the
Sheriff of this Court is
authorised, with the assistance of the South
African Police Service, or a contractor employed by the Sheriff, if
needs be, to evict
the first respondents from the land and to
demolish and remove all structures and buildings erected and
constructed on the land.
STANTON
A
ACTING
JUDGE
NORTHERN
CAPE HIGH COURT
On
behalf of the Applicant:
Mr.
M.C. Louw
(oio
Van de Wall & Partners)
On
behalf of the 1
st
and 2
nd
Respondents:
Mr
R.L. Kruger
(oio
Legal Aid Northern Cape)
[1]
Section 1 of the Act.
[2]
[2004]
JOL 13007 (CC).
[3]
Paragraph
[25].
[4]
Paragraph
[30].