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[2022] ZAECMHC 30
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Member of the Executive Council for the Department of Public Works v Mathew and Others (1290/2020) [2022] ZAECMHC 30 (23 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MTHATHA)
CASE
NO.:
1290/2020
Date
of hearing: 18 March 2022
Date
delivered: 23 August 2022
In
the matter between:
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF PUBLIC WORKS
Applicant
And
MR
MATHEW
First Respondent
MR
JOSEPH
Second Respondent
MR
NGOZI
Third Respondent
UNIDENTIFIED
ILLEGAL OCCUPANTS
Fourth to further
OF
ERF 308
MTHATHA
Respondents
COMBINED
COMMUNITY SCHOOL
Fifth Respondent
JUDGMENT
MAJIKI
J
[1]
The applicant seeks an order that the respondents must vacate Erf
308, Mthatha. In
the event of their failure to vacate, he seeks that
they be evicted therefrom. The application is opposed by the first,
second
and third respondents who have filed an answering affidavit
and simultaneously filed a counter application. The fifth respondent
will be referred to as the school, herein. It was subsequently
joined in the proceedings. In the counter application
the
respondents seek an order that the title deed number T439/2019,
issued in favour of the Provincial Government of the Eastern
Cape,
(provincial government) be declared invalid and set aside. The
applicant has, in return, also opposed the counter application.
[2]
In the replying affidavit to the main application and answer to the
counter claim, the applicant challenges
the authority of the deponent
to the respondents’ affidavits on behalf of the first three
respondents, on the basis that
they did not file their confirmatory
affidavits, however that did not seem to be pursued during the
hearing.
[3]
It is common cause that, prior 1994, erf 308 Mthatha initially
belonged to the South African Government.
It was first registered in
the name of the said government, in Deed of grant dated 16 July 1894.
In 1991 it was erroneously transferred
to South African Post Office
Soc Limited (SAPO). In 2019 it was transferred to the provincial
government, after the conclusion
of a rectification agreement with
SAPO.
[4]
It is also common cause that the property consists of a multi-storey
building and a single storey one. The
former is occupied by various
government departments. It is the single-storey building of erf 308
Mthatha (the property), consisting
of numerous offices which is the
subject matter of the proceedings. The property is occupied by the
respondents, without permission
or consent of the applicant. They are
also not in possession of lease agreements with the applicant.
[5]
It is further common cause that in July 2018, the officials of the
department of the applicant (the department)
made an attempt to
negotiate with the occupants of the property, in order to request
them to vacate the premises by 28 October
2018, in an amicable
manner. On 26 September 2018, the applicant instructed the State
Attorney’s office to issue the respondents
with notices to
vacate. Therein, full reasons why the applicant was in need of the
property were stated. Furthermore, the respondents
were informed that
in the event of failure to yield to the notice, this court would be
approached for an appropriate relief. Not
all the occupants accepted
the letters, but it seems not to be in dispute that, all the
respondents are aware of the said letters.
Despite the expiry of the
period afforded in the notices, none of the respondents vacated the
property.
[6]
Following that, there was a delay in taking the process of the
evictions forward. The said process was resuscitated
after the
appointment of the former member of the executive council (MEC) in
the department and the head of the department (the
deponent) in
August and December 2019, respectively. After an audit of government
properties, it was discovered that there were
a number of government
properties that were not utilised by the government. The school is a
private finishing school for matriculation
certificate students.
[7]
The replying affidavit to the main application was filed out of time.
The applicant has sought condonation
for the lateness, which is not
opposed by the respondents. According to the applicant the
respondents filed a supplementary affidavit
to the answering
affidavit, after the main answering affidavit had been filed, without
leave of the court or the applicant’s
consent. Issues raised
therein, needed to be addressed. There were also judgments and
historic material referred to therein, which
were not attached. Those
needed to be accessed from the archives. That also took time, the
deponent was also in and out of the
office, consultations could only
materialise on 28 August 2020. The reply thereto was also filed late.
According to the respondents
they had to wait for the finalisation of
the application to join the school, so that their replying affidavit
could be consistent
with any information that would be forthcoming,
as a result thereof. The aforesaid lateness was therefore
condoned, respectively,
during the hearing of the matter.
PARTIES
VERSIONS
[8]
According to the applicant the department is the custodian of the
property. It is part of the properties owned
or vested in the
provincial government, in terms of item 28(1) of schedule 6 of the
Constitution of the Republic of South Africa,
1996 (the Constitution)
read with section 239 of the Constitution. The property is required
to provide office space for the government
departments.
[9]
Furthermore, according to the applicants, the respondents occupy the
property illegally. The property is a
commercial property. No one
resides in the property. Following the department’s audit, it
was realised that, the government
could have generated a lot of
revenue in its properties but, such was lost. The current occupiers
on the other hand, generate income
therein, the school and others,
like those operating law practices and salons.
[10]
The applicant is not certain if all activities carried on in the
premises are legal, whether electricity
is properly and safely
connected and whether general safety measures are maintained. It is
not known if there are no dangerous
chemicals or substances used in
the premises. In the event, that there would be disaster or damage,
which risks are highly likely,
the government would suffer great
financial loss.
[11]
Finally, the applicant avers that the application
is brought with utmost good faith. The applicant is being
denied the
right to effect renovations, which would enable the government to
have use and enjoyment of the property. The applicant
as a bona fide
possessor, has a right to seek the respondents’ eviction. The
respondents have no valid right to be in possession
of the property.
The applicant disputes that the rectification agreement and the
registration of the property constitutes administrative
action.
Further, he submits that the government’s right of action has
not prescribed.
[12]
The deponent to the respondents’ answering affidavit stated
that he is one of the directors of the school.
The summary of the
defence raised in the answering affidavit is that, the property has
always been a state land. Its
disposal ought to be in ter
\sms
of the State Land Disposal Act no 48 of 1961 (Act 48 of 1961) and
Land Administration Act 2 of 1995 (Act 2 of 1995). In terms
of Act 48
of 1961 the control and disposal of the land in the vests in State
President (president). The president may delegate
such powers to the
Minister of Land Affairs (minister). The minister may sub-delegate
the said powers, in writing, to the MEC in
the province, in terms of
the two afore-mentioned statutes. The respondents aver that in
relation to the present property, the
applicant has not shown that
such did take place, therefore the applicant has no cause of action.
They say the rights of the school
are protected in terms of the
Constitution, as rights of occupation, they are existing rights.
Those are also rights
protected by common law.
[13]
What happened according to the respondents, instead, is that on 22
December 1997 the minister sub-delegated,
in writing, in a deed of
delegation, the power to control the said property to the MEC,
subject to stipulated statutory conditions,
including, taking care of
the persons like, the respondents. The MEC subsequently donated the
property to King Sabatha Dalindyebo
(KSD) municipality, subject to
the same conditions contained in the deed of delegation. The donation
has a legal effect;
it is a legal disposal. It deprives
provincial government of occupational rights and control. KSD
municipality recognises the school’s
occupation, as it pays
rates to KSD municipality. Further, SAPO lost its
ownership after the land was delegated.
[14]
According to the respondents, the applicant did the rectification
transfer, without the conditions of sub-delegation,
imposed by the
minister. That, the respondents submit, is serious and prejudices
persons like the school, which claims right of
occupation of the
portion the property. The conditions protect existing rights of
persons, when the land is dealt with under Act
2 of 1995, during
sub-delegation. Further, the delegation and sub-delegation
constituted an administrative action. In terms
of section 33 of the
Constitution, subsequent administrative action must be lawful, fair,
procedural fair and reasonable. Also,
in terms of the said section,
an invalid title deed cannot be used in
rei vindicatio
proceedings.
[15]
In the supplementary affidavit to the answering affidavit, the
respondents attached a written delegation
of ministerial powers,
dated 22 December 1997. In terms thereof, the minister in terms of
Act 2 of 1995, delegated the power and
authority to the MEC to
dispose of State land described in the schedule, referred to as
having been attached thereto. However,
the schedule is not attached
to the said annexure. There are further annexures therein, the first
is a list of properties, the
property in issue appears therein. The
list has no heading or any other form of identification as to what it
is in respect of.
However, in the affidavit it is referred to as a
list of properties affected by the donation. Another document
is the donation
of land to local council, Mthatha, now KSD
municipality, by the MEC, dated 14 October 1997. The property appears
therein, with
a request that the properties so donated be registered
in the name of the local authority. According to the
respondents,
the applicant’s department is bound by the said
donation.
[16]
The respondents aver that the MEC exercised his power of control over
the property when the donation was
made to KSD municipality. The
donation deprived the provincial government of all occupational
rights over the said land.
Clause 4 of the
delegation reads:
‘
provided
further that, where any listed properties in the attached Schedule,
including a portion of the properties, formerly known
as Municipal
Commonages are/is to be utilised for housing/ township development or
for any other development, the said MEC or a
Municipal council or any
other development WILL NOT RESULT ON THE DISPOSSESSION OF PEOPLE’S
EXISTING RIGH (FORMAL OR INFORMAL)
IN OR GRANTED ON OR OVER SUCH
PROPERTIES OR COMMONAGE LAND AND IN THE EVENT PEOPLE’S RIGHTS
ARE AFFECTED, IT IS A PREREQUISITE
THAT A SOCIAL COMPACT AGREEMENT
WITH THE AFFECTED BE CONCLUDED to the satisfaction of those people
and in consultation with the
Department of Land Affairs and in
accordance with the provisions and/or conditions stated in the Policy
and Procedures on
Municipal Commonage document by the said
Department and provided further that the said development may only
commence after the
said Agreement has been concluded with the
affected community ;’ (
emphasis
mine).
[17]
Secondly, the respondents are of the view that since SAPO had lost in
spoliation proceedings
when it had unlawfully evicted the school, in
a judgment delivered by Peko ADJP on 9 March 2006, under case number
34/2006, the
applicant is not entitled to act against the school.
These proceedings, therefore, cannot stand. The respondents view the
transfer
of the property in 2019, to the provincial government, from
SAPO, through rectification agreement signed in 1995, as interference
with possession and occupation of the school.
[18]
Further, they say the evidence before Peko ADJP was that the school
effected building renovations and
made improvements to the property
and it is still continuing to do so. The property was dilapidated and
unused, SAPO did not care
about the property. Mr Dexter, who acted on
behalf of SAPO, told Dr Ceza, in the presence of the deponent, that
the school could
take occupation of the property and renovate it so
that it was appropriate for use, by the school. SAPO gave the school
occupational
rights and it had been in possession of the property
since 1994.
[19]
Thirdly, the applicant’s cause of action and the right to
challenge the school’s occupation have
been extinguished by
prescription, three years from the date of judgment in the spoliation
proceedings, before Peko ADJP. The rectification
itself happened
after SAPO’s right of action had prescribed, as well. Finally,
the school had made an offer to purchase the
property, to which there
has been no response.
[20]
Above these defences the respondents have launched a counter
application seeking that the tittle deed rectifying
the erroneous
transfer from SAPO to the provincial government be declared invalid
and set aside. The respondents repeated most
of the above, as grounds
for the review. According to the respondents, they seek to invalidate
the disposal of the property by
SAPO to the provincial government.
They aver that, the latter did not just accept the transfer but was a
party to the rectification
agreement. Also, at the time of the
registration of the said transfer, SAPO’s right of action had
already prescribed and
was not revived by the said registration.
[21]
There are other grounds, including that, the interested
parties, like the school was not heard and consulted
before the
rectification was decided. The respondents aver further that, they
were supposed to have been heard, in compliance with
clause 4 of the
deed of sub-delegation. Further, the title deed, following the
rectification agreement, does not specify
the reason for the error
that was being rectified, in order for the registrar of deeds to see
whether the rectification complied
with clause 16 of the delegation.
Further, parties to the rectification agreement, in particular, the
provincial government, if
it was a party are not disclosed.
Noteworthy, the said clause provides permission to the MEC to rectify
errors relating to extent
or size of the property, title deed number
or year of the property, provided that the name, registration number
and town or municipality
in the schedule is correct.
[22]
The applicant, in reply does not dispute the
history of applicable legislation as articulated by the respondents.
However, he avers that the applicable legislation, in order for the
applicant to have power, to administer, control and dispose
the land
in question is the Land Disposal Act 7 of 2000, for the reason that
the ownership of the property vested with the provincial
government.
The vesting that is alleged by the respondents is denied, the
applicant relies on the deed of transfer and the delegations,
which
the respondents have also attached. The applicant explained in the
founding affidavit that the applicant came to be the custodian
of all
immovable assets which are registered in the name of the provincial
government. The historical delegations of authority
are irrelevant to
the central question in this application.
[23]
The applicant disputes that the respondents made any improvements or
expensive renovations in the property.
He says, there are no
lecture halls or classrooms in the sense of a formal school. Business
offices are illegally used as
a school.
There
is a minimum number of candidates in the school. The property
consists of official administrative offices, it is not suitable
for a
school. Further, it is disputed that SAPO gave the school
occupational rights, Mr Dexter could not have done so, as he was
not
the owner of the property. There are also no confirmatory affidavits
to confirm the said allegation. The school therefore could
not
validly enter into lease agreements with any person.
[24]
The applicant also denies the donation to KSD municipality. It
submits that it has no legal effect. If there was
any donation the
deponent lacks standing to enforce it. It is of no consequence that
the condition of registration of the properties,
referred to in the
deed of delegation was not complied with, due to the fact that the
properties were not registered in the name
of the respective donee
municipalities. It is also denied that KSD municipality recognised
the school’s occupation of the
property.
[25]
Furthermore, the school is a private business that is in unlawful
occupation of the property. It cannot create
conditions by itself and
seek to enforce those, to resist eviction. The public interest demand
for the property outweighs those
of a private school that is making a
profit, without paying rent. The government currently rents
properties for essential services
at huge costs, to the prejudice of
the taxpayer. The property is not for sale. The counter application
is ill-conceived, the setting
aside of the title deed would not
result in the registration of the property in the name of the school.
No case has been made for
the registration of the property in the
name of the school, such would be inconsistent with statutes which
regulate the use of
state assets. Existing occupational rights would
not include persons or entities like, the school. There were
also no conditions
attached to the transfer of the said title deed.
Even the sub-delegation referred to by the respondents, was not
subject to conditions.
[26]
The applicant also averred that the respondents delayed in
bringing the application. (According to
the respondents the
review sought is one for the registration of the property, in 2019,
following the rectification agreement,
and not of the agreement
entered into in 1991). Furthermore, the litigation regarding
the interdict against development by
private companies of land
situated at Enkululekweni ministerial complex under case 607/2007,
referred to by the respondents, is
also irrelevant in the present
litigation. The respondents in their replying affidavit to the
counter application state that they
became aware of the rectification
registration, upon the service of the founding paper herein, in June
2020.
[27]
In the said replying affidavit, the respondents made different
averments regarding the conditions imposed
on the property. Initially
they had said the subdelegation was made subject to the stipulated
conditions. In the replying
affidavit, they aver that the
disposal of the property was made subject to the conditions of the
government in 1894, instead of
the conditions in the delegation.
Further, the school as the occupant of the property has full legal
standing to enforce the decision
to donate and the deed of
sub-delegation by the minister. SAPO lost its ownership of the
property as a result of the delegation
of powers to the property to
the minister. The property reverted to KSD municipality, subject to
statutory conditions.
[28]
The respondents made further new averments relating to
non-joinder of the president and lack of jurisdiction of
this court,
in the light of the existence of a land claim including the property
by Khoi Khoi Zan people.
THE
ISSUE
[29]
The central issue for the determination in the main application is,
whether the applicant is entitled
to seek the eviction of the
respondents from the property. With regard to the counter application
the issue is whether the respondents
are entitled to have the
registration of the property in the name of the provincial government
set aside.
[30]
The applicant is required to prove that the provincial government is
the owner of the property and that he
is entitled to evict the
respondents from the property. The deed of transfer shows that the
provincial government is the owner.
However, the respondents submit
that, such transfer is invalid. This aspect will be dealt with in the
evaluation of the counter
application.
EVALUATION
[31]
I agree with the applicant that the judgment in the spoliation
proceedings before Peko ADJP, does not have the
implication of
restraining the legal proceedings, like the present. All that order
stated was that, there should be no interference
with possession of
the property without legal recourse. Those proceedings in their
nature, are not about vindication or recognition
of rights.
In
Ngqukumba v Minister of Safety and Security and Others
2014 (2)
SACR 325
(CC) Madlanga J stated:
‘
[10]
The essence of the mamdament van spolie is the restoration before all
else of unlawfully deprived possession to the possessor.
It finds
expression in the maxim spoliatus ante omnia restituendus est (the
despoiled person must be restored to possession before
all else), The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law…’
The
application to court for eviction, like in the present, is a legal
recourse which a spoliation order envisages, before the act
of
spoliation. Similarly, the applicant sets out the correct legal
position when making a submission that, the provisions of Prevention
of Illegal Eviction from Unlawful Occupation Act 19 of 1998 does not
apply to a commercial property.
[32]
With regard to prescription, the respondents seem to be of the view
that, the applicant’s cause of
action arose from the time of
and is based on the judgment in the spoliation proceedings before
Peko ADJP. That is not the case.
No rights were conferred, determined
or recognised in those proceedings. The applicant claims eviction of
the respondents because
they occupy the property. The relevant date
for determination of the cause of action therefore, would be the date
on which the
respondents claim to have acquired occupation. SAPO or
the subsequent owner, as the registered owner, is entitled to claim
the
property, unless thirty years had elapsed from the date of
occupation. The cause of action herein is not a debt, the three-year
period provided for in section 11(1) of the Prescription Act number
68 of 1969 (Prescription Act) is not applicable. The relevant
section
in the present circumstances, is the one providing for acquisitive
prescription. Section 1 of the Prescription Act provides:
‘
Subject
to the provisions of this Chapter and of Chapter IV, a person shall
by prescription become the owner of a thing which he
has possessed
openly and as if he were the owner thereof for an uninterrupted
period of thirty years or for a period which, together
with any
periods for which such thing was so possessed by his predecessors in
title, constitutes an uninterrupted period of thirty
years.
In
any event, the school does not claim that it possessed the property
as if it were the owner of the property, even at this stage.
[33]
The next issue relates to the allegation of donation by MEC to
KSD municipality. In the respondents’ version
the donation was
allegedly made to the local municipality in October 1997. In the same
breath the minister’s delegation was
only on 22 December 1997.
I therefore agree with the applicant that, if the delegation
happened, it could not validly take
place before the MEC himself was
enclothed with delegated powers. Similarly, even when the minister’s
powers were allegedly
delegated by the president, SAPO was already
the owner of the property, by then. KSD municipality has also
neither confirmed
the donation, nor what the implications of its
allowing the school to pay the rates are. The transfer of the said
donation was
also never registered.
[34]
Furthermore, the respondents’ submission with regard to its
occupational rights are inconsistent.
They seek to rely on the
occupational rights that the school allegedly acquired from SAPO,
again regarding the judgment of Peko
ADJP they incorrectly say it
protected rights. Finally, they say their right of occupation
is recognised by KSD municipality.
However, SAPO has not confirmed
the allegation about it. The respondents have not explained how
Mr Dexter, as an individual,
could pass rights relating to government
property.
[35]
I do not agree with the submission that the respondents have rights
that are protected in clause 4 of the
delegation. Clause 4, as quoted
at paragraph 16 above, protects existing rights. None have been found
to exist in respect of the
school. Also, in relation to conditions,
the same finding, about SAPO having owned the property already, at
the time of the delegation,
would be apply in this regard. Further,
the respondents’ version about the conditions differs between
the one in the supplementary
answering affidavit and that in replying
affidavit in the counterclaim. Initially they had said the
subdelegation was made subject
to the stipulated conditions.
Subsequently, they averred that, the disposal of the property was
made subject to the conditions
of the government in 1894. In any
event, the schedule of properties referred to in the delegation of
the minister to the MEC, to
dispose of State land, in terms of Act 2
of 1995, annexed to the supplementary answering affidavit, was not
attached to the annexure.
[36]
With regard to the counterclaim the applicant submits that the said
application, being a legality review
was brought out of time. There
is no application for condonation of that delay. The transfer of
ownership from SAPO to the provincial
government took place in 2019.
The respondents in reply, say they became aware of the transfer in
June 2020, when the main application
was served. The applicant
submits that, given the fact that there had been a previous attempt
to evict the school; that Mr Dexter
gave them occupational rights;
and that one of the occupiers is a firm of attorneys, that was also
involved in the spoliation litigation,
before Peko ADJP, therefore
the respondents ought to have taken interest in the ownership of the
property. In my view, it would
be far-fetched for the respondents,
after keeping themselves in the loop about the delegations and
donations, also, taking into
account that they wanted to buy the
property, not to make an effort about the important part, that of
being kept abreast about
the transfer of ownership, which would have
the effect of threatening their occupational rights and their
interest, that of the
school becoming the owner of the property.
In fact, the involvement of the firm of attorneys, in their own
version,
that of being offered occupation in return for advice on
aspects relating to their occupation, shows that they were or ought
to
have been vigilant in their dealings about the property.
[37]
What further complicates issues for the respondents is that, the
allegation about when they became
aware of the passing of ownership
is only made in the replying affidavit. There does not seem to
be any reason why the respondents
could not have been upfront about
this integral part of the application, in the founding affidavit of
the counter application.
The applicant is not in a position to deal
with this allegation. No reason has been advanced as to
why it was advanced
late. The court is inclined to agree with the
applicant that there has been undue delay, in the review
application.
[38]
Having said that, however, it is considered necessary to deal with
the merits of the counter application.
[39]
Firstly, regarding the improvements that the respondents alleged to
have made, even if their version was
to be believed, those have not
been quantified. Further, the respondents can still pursue a claim
for what was allegedly expended
therein, and not seek to resist
eviction on the basis of such.
[40]
The challenge to the rectification agreement on the basis of
non-compliance with clause 16 of the conditions
of delegation deed,
in my view, cannot stand for two reasons. Clause 16 refer to
specifically mentioned errors. Secondly, the date
of the alleged
delegation is after the transfer to SAPO. The need for the
rectification agreement would not imply that SAPO did
not own the
property at the time it was registered in its name. This the
respondents seem to recognise, at least, when they aver
that they
were given occupational rights by SAPO. There is also no merit in the
submission that, the reason for the error that
was being rectified is
not stated. The applicant stated that for an unknown reason the
transfer to SAPO was made in error. The
error was that of the
transfer itself, it was rectified by the transfer to the provincial
government.
[41]
The respondent complain about not being heard before the
rectification transfer. I agree with
the applicant,
neither the rectification nor the transfer of a title deed is an
administrative action. They are not
a decision taken or
failure to take a decision by an Organ of State as contemplated in
section 1 of Promotion of Administrative
Justice Act 3 of 2000.
(See
Nedbank v Mendelow
NNO
2013
(6) SA 130)
at paragraph 24. Again, having found that
they had no right in the property, there was no basis for them to be
consulted
or heard. Also, there would have been no need for the
applicant to make allegations about the disposal through delegations
and donations. Those are not part of the applicant’s case. The
applicant’s case is that the property is part of the
properties
owned or vested in the provincial government, in terms of item 28(1)
of schedule 6 read with section 239 of the Constitution.
[42]
As for the averments made for the first time in the counterclaim,
appearing in paragraph 28 above, it is trite
that in motion
proceedings the applicant has to make its case in founding affidavit
and not in the replying affidavit. It
is an exception that the
court would, in the exercise of its discretion, under special
circumstances, allow a new matter to be
raised in the replying
affidavit. (See
Titty’s Bar and Bottle Store (Pty) Ltd v ABC
Garage (Pty) Ltd and others
1974 (4) SA 362
(
T)
at
369A-B
;
Body Corporate, Shaftesbury Sectional Title Scheme v Rippert’s
Estate
203 (5) SA 1
at
6
)
No
special circumstances are found to justify the introduction of the
said new issues in the replying affidavit, herein.
[43]
In my view, the title deed in the name of the provincial government
is valid. It proves ownership of
the property. No serious issue
can arise in the applicant’s reference to the department as the
custodian of the property.
The provincial government functions
through the various departments. The applicant averred that his
department is responsible
for matters relating to government
properties. This is also apparent from the averment that the
audit of properties was undertaken
by the department. The
applicant is the member of the executive responsible for the said
department. Thereafter the officials
of the department engaged in
negotiations with the respondents, with a view to get them to vacate
in an amicable manner.
[44]
Having considered that the applicant is the
registered owner of the property; the applicant requires the
property
to accommodate government offices; due notices to vacate were given
to the respondents; and the respondents have been
found to lack the
right to occupy the property, I am satisfied that the applicant has
made out a case for the eviction of the applicants.
The respondents
are carrying on business to the prejudice of the applicant, by being
denied use and enjoyment of government property
for public interest.
[45]
Regarding the costs of 18 March 2021, in the order of the said date,
it appears that the applicant was ordered
to serve the papers on the
fifth respondent, which is the school, by delivering a copy thereof
on the respondent’s attorneys.
During the hearing the
applicant submitted that all the respondents’ affidavits were
deposed to by the director of the school.
The school therefore,
was always in possession of the application papers before the said
order was made. According to the
respondents, service upon the
school was necessary after its joinder. It appears that the
court when making that order was
also of that view. In that
light, the applicant ought to pay the wasted costs of 18 March 2021.
[46]
In the circumstances of this case, I am satisfied that an order for
the eviction of the respondents
is just and equitable.
In
the result,
1.
The respondents and all other persons in occupation of erf 308,
Mthatha are
hereby ordered to vacate the premises known
as erf 308 Mthatha, within thirty (30) days of the order.
2.
In the event of the respondent’s failure, refusal or neglect to
vacate
the said property, in part or as a whole, the sheriff of this
court, duly assisted by members of the South African Police Service,
and the applicant’s security services, if needs be, are hereby
authorised to evict the respondent and any other person(s)
found on
the said property.
3.
The counter application is hereby dismissed.
4.
The respondents are hereby ordered to pay the costs of the main
application,
excluding the costs of 18 March 2021.
5.
The applicant is hereby ordered to pay costs of 18 March 2021.
6.
The respondents are ordered to pay costs of the counter application.
B
MAJIKI
JUDGE
OF THE HIGH COURT
Counsel
for the applicant
: Ms Pillay
SC with Mr Pitt
Instructed
by
: Messrs Mvuzo Notyesi Incorporated
2
nd
Floor, Old TH Madala Chambers
14
Durham Street
MTHATHA
Attorney
for the Respondents :
Mr Tshiki
Instructed
by
: Messrs Tshiki & Sons Incorporated
34
Victoria Street
MTHATHA