Occupiers of ERF 101,102, 104 and 112, Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others (245/08) [2009] ZASCA 80; 2010 (4) BCLR 354 (SCA); [2009] 4 All SA 410 (SCA) (3 July 2009)

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[2009] ZASCA 80
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Occupiers of ERF 101,102, 104 and 112, Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others (245/08) [2009] ZASCA 80; 2010 (4) BCLR 354 (SCA); [2009] 4 All SA 410 (SCA) (3 July 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 245/08
No precedential significance
In the matter between:
THE OCCUPIERS OF
ERF 101, 102,
104 and 112,
SHORTS RETREAT,
PIETERMARITZBURG
APPELLANTS
v
DAISY DEAR
INVESTMENTS (PTY) LTD 1
st
RESPONDENT
HASSIM EBRAHIM
TAR ALLY N.O. 2
nd
RESPONDENT
ZAINAB BIBI ALLY
N.O. 3
rd
RESPONDENT
Neutral
citation:
The
Occupiers of Shorts Retreat v Daisy Dear Investments
(245/2008)
[2009]
ZASCA 80
(3 July 2009)
Coram:
Mpati
P, Navsa, Jafta JJA, Kroon et Tshiqi AJJA
Heard: 8 May 2009
Delivered: 3 July
2009
Summary: Evictions
in terms of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 – the requirements
therefor
restated.
ORDER
On appeal from:
High
Court of South Africa (Natal Provincial Division, (Jappie J)
In the result the
following order is made:
1. The appeal is
upheld.
2. The order of the
court a quo is set aside and replaced with the following order:
(a) The Msunduzi
Municipality (“the Municipality”) is hereby joined in these
proceedings.
(b) The Applicant is
to serve on the Municipality, within 5 days of this order, a copy of
all documents filed in the High Court,
in these proceedings and a
copy of this order.
(c) The Municipality
is directed by 30 June 2009, to file a report, confirmed on
affidavit, in order to report to the court on
(i) What steps it
has taken and what steps it intends or is able to take in order to
provide alternative land and/or emergency accommodation
for the
Occupiers of Erven 101, 102, 104 and 112 Shorts Retreat in the event
of their being evicted and when such alternative land
or
accommodation can be provided;
(ii) What the
effects would be if the eviction would take place without alternative
land or emergency accommodation being made available;
(iii) What steps
can be taken to alleviate the effects of the current occupation of
the properties referred to above if the
occupiers are not immediately
evicted and pending alternative land or accommodation being made
available.
(d) The applicants
and the occupiers may, within fifteen days of delivery of the
Municipality’s report, file affidavits in response
to such report;
(e) The matter is
postponed
sine
die,
for
consideration of the matter, including, if appropriate, the
possibility of mediation to seek a resolution of the matter and
such
other interim or final order, as it may be considered appropriate;
(f) The question of
costs is reserved.
(g) Nothing in this
order should be construed to mean that the Municipality is precluded
from taking such steps as it may be advised
to take pursuant to its
joinder.
3. There is no order
as to costs of the appeal.
4. The matter is
remitted to the court a quo for its further conduct.
JUDGMENT
JAFTA
JA
(Mpati
P, Navsa JA et Kroon, Tshiqi AJJA concurring)
[1]
At
the hearing of this appeal and by consent the parties requested the
following order:
‘
1. The appeal is
upheld.
2. The order of the
court a quo is set aside and replaced with the following order:
(a) The Msunduzi
Municipality (“the Municipality”) is hereby joined in these
proceedings.
(b) The Applicant is
to serve on the Municipality, within 5 days of this order, a copy of
all documents filed in the High Court,
in these proceedings and a
copy of this order.
(c) The Municipality
is directed by 30 June 2009, to file a report, confirmed on
affidavit, in order to report to the court on
(i) What steps it
has taken and what steps it intends or is able to take in order to
provide alternative land and/or emergency accommodation
for the
Occupiers of Erven 101, 102, 104 and 112 Shorts Retreat in the event
of their being evicted and when such alternative land
or
accommodation can be provided;
(ii) What the
effects would be if the eviction would take place without alternative
land or emergency accommodation being made available;
(iii) What steps
can be taken to alleviate the effects of the current occupation of
the properties referred to above if the
occupiers are not immediately
evicted and pending alternative land or accommodation being made
available.
(d) The applicants
and the occupiers may, within fifteen days of delivery of the
Municipality’s report, file affidavits in response
to such report;
(e) The matter is
postponed
sine
die,
for
consideration of the matter, including, if appropriate, the
possibility of mediation to seek a resolution of the matter and
such
other interim or final order, as it may be considered appropriate;
(f) The question of
costs is reserved.
(g) Nothing in this
order should be construed to mean that the Municipality is precluded
from taking such steps as it may be advised
to take pursuant to its
joinder.
3. There is no order
as to costs of the appeal.
4. The matter is
remitted to the court a quo for its further conduct.’
We
stated at the time the order was made that
reasons
for the requested order would follow. These are the reasons.
[2] The
appeal is against an order of the Pietermaritzburg High Court (Jappie
J) in terms of which the appellants were ordered to
demolish their
homes and vacate erven 101,102,104 and 112 situate at Shorts Retreat,
Pietermaritzburg. The appeal is with the leave
of this court.
[3] The
appellants – a group of people the majority of whom are unemployed,
poor and homeless – settled on the erven in question
illegally.
They erected informal dwellings described as shacks in the papers.
Some members of the group occupied the buildings
on the properties.
With the passing of time the group grew into a community of
approximately 2000 people. Some households in this
community are
headed by women. The only services they receive from the local
authority are a communal water tap and a mobile clinic.
[4] The
appellants have been in occupation of the properties
concerned
for a period in excess of five years. Although the respondents –
the landowners – were aware of the occupation no
legal action was
taken to evict them until Msunduzi Municipality (the municipality)
demanded that they be evicted. The demand was
made in April 2006 and
it was based on the assertion that the erection of shacks contravened
the municipality’s health bye-laws.
The application for eviction
was instituted in October 2006.
[5]
The
order issued by the court below was challenged on the basis that the
requirements of the Prevention of Illegal Eviction from
and Unlawful
Occupation of Land Act 19 of 1998 (PIE), in terms of which the
application was brought, were not met. PIE was enacted
so as to give
effect to the rights in s 26 of the Constitution.
1
It prescribes requirements which must be met before the court may
issue an eviction order. The relevant parts of s 4 of PIE read:
‘
(1)
Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of land for the eviction of an unlawful occupier.
(2)
At
least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective
notice of
the proceedings on the unlawful occupier and the municipality having
jurisdiction….
(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.’
[6]
The
section requires that before an eviction order is granted the court
must be satisfied that such order will be just and equitable
to the
applicant and the unlawful occupier. In determining whether an
eviction is just and equitable, the court is required to
consider
amongst others, whether land has been made available or can
reasonably be made available by a municipality or an organ
of state
for the relocation of the occupier.
2
In a case such as this, where a large group of people is to be
evicted, the court must also take into account the rights and needs

of the elderly, children, disabled persons and households headed by
women as part of the relevant circumstances. Information relating
to
these latter matters was not placed before the court. As a result
they were not taken into account in determining whether the
eviction
was just and equitable.
[
7] The
issue relating to alternative land to which the appellants could be
relocated was also not explored adequately. The court
below readily
accepted a report filed by the municipality pursuant to an order it
had issued. This report states that the appellants
could not be
accommodated in any of the municipality’s existing housing projects
and that no land could be identified for their
relocation. It states
further that before the municipality could provide houses or land in
terms of its housing programme, it has
to follow a long process which
can take up to five years. The programme prescribes an inflexible
procedure which is not suitable
to the circumstances of this case.
[
8] The
court below also accepted as correct the allegation that if the
municipality ‘continues to make land available to people
who invade
either private or public owned land with the intention of fast
tracking their housing needs, the municipality will not
be in a
position to address its current identified backlogs’. There is no
evidence on record showing that the appellants’ occupation
was
motivated by an ulterior desire to leapfrog others in the queue for
housing. The facts establish that the occupation occurred
because the
appellants were homeless and had nowhere else to go.
[9
] The
court did not consider suggesting to the appellants that they request
the municipality to refer the matter for mediation and
settlement in
terms of the provisions of PIE before the eviction order was issued.
This aspect underscores why it was necessary
to join the municipality
as a party, in which case the municipality could have been ordered to
submit to mediation.
3
Section 7 of PIE provides for an appointment of a mediator by a
municipality in a case where, as here, the occupied land does not

belong to it.
4
The function of the mediator is to facilitate meetings between the
interested parties with a view to finding an equitable solution.

Mediation is necessary particularly in cases where a large number of
people is involved. In
Port
Elizabeth Municipality v Various Occupiers
Sachs
J said:
5
‘
In
my view, s 7 of PIE is intended to be facilitative rather than
exhaustive. It does not purport, either expressly or by necessary

implication, to limit the very wide power entrusted to the court to
ensure that the outcome of eviction proceedings will be just
and
equitable. As has been pointed out, s 26(3) of the Constitution and
PIE, between them give the courts the widest possible discretion
in
eviction proceedings, taking account of all relevant circumstances.
One of the relevant circumstances in deciding whether an
eviction
order would be just and equitable would be whether mediation has been
tried. In appropriate circumstances, the courts
should themselves
order that mediation be tried.’
[1
0] It
emerges from the facts on record that, had it been tried, mediation
could possibly have yielded an equitable outcome. The
appellants have
demonstrated their willingness to vacate if provided with alternative
land. The respondents pointed out that alternative
land to which the
appellants could be relocated was available at a nearby place called
France in Pietermaritzburg. This was, however,
not explored at the
hearing. In the circumstances of the present case there was no
compliance with the mandatory requirements of
PIE. It follows that
the eviction order was premature.
[1
1] The
effect of the order issued on appeal was to join the municipality
without a substantive application for joinder. This was
done for the
following reasons. If an eviction order that is just and equitable to
the appellants is issued at the conclusion of
the re-hearing of the
matter, it will ineluctably affect the municipality’s interests.
This makes the municipality a necessary
party which must be given an
opportunity to be heard before such order is made. It seems to me
that had the court below not fallen
into error in determining whether
the order it contemplated was just and equitable to both sides, it
could have insisted upon joinder
of the municipality.
[1
2] At
common law our courts have an inherent power to order joinder of
parties where it is necessary to do so. Ordinarily such an
order is
issued pursuant to an application by one of the parties, in a court
of first instance, which would have been served upon
the party whose
joinder is sought. A court could however, even on appeal,
mero
motu
raise the question of joinder to safeguard the interests of third
parties and decline to hear a matter until such joinder has been

effected.
6
In this case there was no formal application and all that was
required of the municipality was the report referred to earlier.
[13] The
court below, incorrectly, did not consider the municipality a
necessary party. It is clear from the papers already filed
that the
municipality itself rendered some assistance to the occupants during
their occupation of the land in question by way of
installation of a
tap to provide water. The municipality has apparently been to visit
the site on a number of occasions with officials
from the Department
of Land Affairs. The affected community lives within the
municipality’s area of jurisdiction and cannot be
wished away. A
community of this size cannot, with the best will in the world,
relocate and find alternative accommodation overnight.
The
municipality should be concerned about the community being compelled
into further unlawful occupation of land. An order by
the court
below, after consideration of all the relevant circumstances, will no
doubt impact on the municipality. It is clearly
a necessary party,
hence the order by this court. In any event, the order is directed,
not only at safeguarding the municipality’s
interest, but also to
ensure that any order that is issued by the court below is just and
equitable.
[14] The
municipality’s position in eviction proceedings under PIE differs
from that of a third party in ordinary litigation because
it has
constitutional obligations it must discharge in favour of people
facing eviction. It should therefore not be open to it
to choose not
to be involved. Moreover, s 4 of PIE obliges the courts to be
innovative and if it becomes necessary, to depart from
the
conventional approach.
7
In any event the order issued does not in any way preclude the
municipality from raising any issue it may wish to raise.
[15] Although
the Minister of Land Affairs was not ordered to be joined as a party
it may be an aspect, that the court below and
the parties, should
consider.
[16] It is for all
these reasons that this court issued the order referred to above.
________________________
C N JAFTA
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: Paul
Kennedy SC
Rudolph Jansen
Instructed by
Lawyers for
Human Rights
Durban
Lawyers for
Human Rights
Legal Aid Board
Bloemfontein
FOR RESPONDENT: P C
Bezuidenhout SC
Instructed by
Jasat &
Jasat,
Pietermaritzburg
Webbers
Bloemfontein
1
Section 26(3) provides: ‘(3) No one may be
evicted from their home, or have their house demolished, without an
order of court
made after considering all the relevant
circumstances. …’
2
This requirement does not apply to cases where
the eviction proceedings are instituted within six months from the
date of occupation.
3
See the discussion on joinder later in this
judgment.
4
Section 7(1) provides: ‘(1) If the municipality
in whose area of jurisdiction the land in question is situated is
not the owner
of the land the municipality may, on the conditions
that it may determine, appoint one or more persons with expertise in
dispute
resolution to facilitate meetings of interested parties and
to attempt to mediate and settle any dispute in terms of this Act…’.
5
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 45.
6
See Erasmus
Superior Court Practice
at B1-95 and
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A). At p
659 of that case this court referred with approval to
Collin v
Toffie
1944 AD 456
and
Home Sites (Pty) Ltd v Senekal
1948
(3) SA 514
(A) as instances where the question of non-joinder was
raised for the first time before this court. In both instances this
court
set aside the lower court’s order and referred the case back
to be dealt with after the third party had been joined and it

ordered the plaintiff in those cases to join the third party.
7
In this regard the Constitutional Court stated in
Port Elizabeth Municipality
above n 6 in para 36: ‘The court is thus called upon to go beyond
its normal functions and to engage in active judicial management

according to equitable principles of an ongoing, stressful and
law-governed social process. This has major implications for the

manner in which it must deal with the issues before it, how it
should approach questions of evidence, the procedures it may adopt,

the way in which it exercises its powers and the orders it might
make.’