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[2009] ZASCA 129
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Randfontein Municipality v Grobler and Others (543/08) [2009] ZASCA 129; [2010] 2 All SA 40 (SCA) (29 September 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 543/08
RANDFONTEIN
MUNICIPALITY Appellant
and
JOHN
MICHAEL GROBLER First Respondent
BEN
MSIMANGA Second Respondent
THE
OCCUPIERS OF IMMOVABLE PROPERTY
KNOWN
AS PORTION 74 OF THE FARM ELANDSVLEI
249
I.Q. RANDFONTEIN Third Respondent
Neutral citation:
Randfontein
Municipality v Grobler and others
(543/08)
[2009] ZASCA 129
(29 September 2009).
Coram:
HARMS DP, LEWIS,
PONNAN JJA, TSHIQI
et
WALLIS AJJA
Heard:
10
SEPTEMBER 2009
Delivered:
29
SEPTEMBER 2009
Summary:
Eviction â
referral to oral evidence on whether occupation with express or tacit
consent â whether PIE or ESTA applicable.
________________________
______________________________________
ORDER
______________________________________________________________
On appeal from: High Court, Johannesburg (Du Plessis AJ
sitting as court of
first instance).
The appeal is upheld with no order as to costs in this
court and the order of the court
a quo
is set aside and replaced with an order in the following terms:
'(a) The application is postponed to a date to be
determined by the Registrar of the South Gauteng High Court for the
hearing of
oral evidence.
(b) The issues to be resolved at such hearing are:
(i) whether or not any person, claiming to reside on
portion 24 of the Farm, Elandsvlei, 249, IQ, Randfontein is an
occupier thereon
as contemplated in the Extension of Security of
Tenure Act, 62 of 1997 (ESTA); and
(ii) whether such person had consent, as contemplated in
ESTA, to reside thereon, and
(iii) in consequence of such findings, whether the
provisions of ESTA or the Prevention of Illegal Eviction from and
Unlawful Occupation
of Land Act, 19 of 1998 (PIE) are applicable to
the eviction of such persons.
(c) The evidence to be adduced at the aforesaid hearing
shall be that of any witnesses whom the parties or any of them may
elect
to call, subject however to what is provided below.
(d) Save in the case of any persons who have already
deposed to affidavits in these proceedings, neither party shall be
entitled
to call any person as a witness unlessâ
(i) It has served on the other party, at least 14 days
before the date appointed for the hearing, a statement by such person
wherein
the evidence to be given in chief by such person is set out;
or
(ii) The court, at the hearing, permits such person to
be called despite the fact that no such statement has been so served
in respect
of his or her evidence.
(e) Either party may subpoena any person to give
evidence at the hearing, whether such person has consented to furnish
a statement
or not.
(f) The fact that a party has served a statement or has
subpoenaed a witness shall not oblige such party to call the witness
concerned.
(g) Within 45 days of the making of this order, each of
the parties shall make discovery on oath of all documents relating to
the
issues referred to above, which documents are, or have at any
time been, in possession or under the control of such party.
(h) Such discovery shall be made in accordance with Rule
35 of the Uniform Rules of Court and the provisions of that Rule with
regard
to the inspection and production of documents discovered shall
be operative.
______________________________________________________________
JUDGMENT
______________________________________________________________
TSHIQI AJA (HARMS DP, LEWIS, PONNAN JJA
et
WALLIS AJA concurring):
[1] The issue in this appeal is whether the High Court
had jurisdiction to order the eviction of certain occupiers from
property
under the provisions of the Prevention of Illegal Eviction
From and Unlawful Occupation of Land Act 19 of 1998 (PIE). Mr
Grobler,
the owner of a farm described as Portion 74, Elandsvlei 249
IQ, Randfontein brought an application to the High Court,
Johannesburg,
for an order for the eviction of the second and third
respondents (the occupiers) from the farm stating that none of them
had a
right to occupy it. The application was opposed by the
respondents who challenged the jurisdiction of the court in that they
alleged
that the dispute fell to be determined under the provisions
of the Extension of Security of Tenure Act 62 of 1997 (ESTA) because,
as they alleged, the occupiers had consent to occupy the land. The
court below accepted the version of the applicant that there
was no
consent and dealt with the matter under PIE. The court further found
no real nor genuine dispute of fact and consequently
held that no
case was made for referral to oral evidence. The appeal is against
both findings and is brought with leave of the
court below. The main
issue is whether there was a real and genuine dispute that
necessitated a referral to oral evidence.
[2] The occupiers commenced settling on the farm in
1959. They constitute a settled community of approximately 2000
people comprising
900 women, 54 pensioners and 500 children. They
live in shelters consisting of approximately 133 shacks, 44 permanent
structures,
two caravans and by August 2006 there were said to be 261
dwellings. It is not in dispute that the land is classified as
agricultural
land.
[3] The appellant, Randfontein Local Municipality (the
third respondent in the court below) was cited in its capacity as the
state
functionary obliged to give effect to the obligations of the
state in terms of s 26 and 27 of the Constitution of the Republic of
South Africa ('the Constitution'). Notice was duly served in terms
of s 4(2) of PIE and the application was opposed by the occupiers
who
filed affidavits with the assistance of the Legal Aid Board.
[4] ESTA and PIE were adopted with the objective of
giving effect to the values enshrined in ss 26 and 27 of the
Constitution.
The common objective of both statutes is to regulate
the conditions and circumstances under which occupiers of land may be
evicted.
1
The main distinction is that broadly speaking ESTA applies to rural
land outside townships and protects the rights of occupation
of
persons occupying such land with consent after 4 February 1997,
whilst PIE is designed to regulate eviction of occupiers
who lack the
requisite consent to occupy. Occupiers protected under ESTA are
specifically excluded from the definition of 'unlawful
occupier' in
PIE.
2
An order for the eviction of occupiers may be granted under ESTA by a
competent court on just and equitable grounds, having regard
to the
different considerations applicable in each instance. The Land Claims
Court is a specialist tribunal established by
s 22
of the
Restitution
of Land Rights Act 22 of 1994
and enjoys jurisdiction, subject to
ss
17
,
19
,
20
and
22
of ESTA, to deal with cases determined under ESTA.
It follows, therefore, that if the land was occupied with consent,
either express
or tacit, the jurisdiction of the High Court to deal
with it is excluded in the absence of consent to its jurisdiction.
3
[5] 'Consent' and 'occupier' are defined in
s 1
of ESTA
as follows:
'"consent" means
express or tacit consent of the owner or person in charge of the land
in question, and in relation to
a proposed termination of the right
of residence or eviction by a holder of mineral rights, includes the
express or tacit consent
of such holder;
"occupier" means a
person residing on land which belongs to another person, and who has
or on 4 February 1997 or thereafter
had consent or another right in
law to do so, but excluding . . ..'
[6]
Section 2(1)(a)
of ESTA provides:
'(1) Subject to the provisions
of
section 4
, this Act shall apply to all land other than land in a
township established, approved, proclaimed or otherwise recognised as
such
in terms of any law, or encircled by such a township or
townships, but
including â
(a) any land within such a
township which has been designated for agricultural purposes in terms
of any law . . ..'
[7] ESTA envisages both express and tacit consent. The
fact that express consent was not alleged does not mean there was no
consent
at all. In this case the occupiers assert consent. The
lengthy period for which the occupiers had settled on the land, the
size
of the community and the fact that the municipality provides
certain services are all relevant in determining the existence of
tacit consent.
[8] The provisions of s 3 of ESTA may also be relevant
in the final determination of the dispute because this section
creates a
presumption of consent in favour of the occupiers in civil
proceedings in terms of ESTA as follows:
'(4) For the purposes of civil
proceedings in terms of this Act, a person who has continuously and
openly resided on land for a
period of one year shall be presumed to
have consent unless the contrary is proved.
(5) For the purposes of civil
proceedings in terms of this Act, a person who has continuously and
openly resided on land for a period
of three years shall be deemed to
have done so with the knowledge of the owner or person in charge.'
This section provides that once it is proved that
occupiers have resided on the land classified as agricultural land
for more than
three years then the presumption becomes effective in
their favour.
[9] In
Rademeyer and others v
Western Districts Council and others
4
Nepgen J had occasion to deal with the requirement of tacit consent
in the context of ESTA. He accepted that the initial occupation
of
the respondent's property in that case took place without the prior
consent of the respondent, a local authority. He found that
it was
clear that upon becoming aware of the presence of the occupiers, the
attitude of the local authority was that the occupiers
could remain
on the property until alternative arrangements could be made to house
them elsewhere. He then concluded as follows:
5
'In my judgment, the conduct of
the respondent in permitting the intervening respondents to remain on
the respondent's property
and resolving to provide them with water
and sanitation (which has in fact been provided) constitutes at the
very least tacit consent
to the intervening respondents to reside on
the respondent's property. It was not contended, and in my view
rightfully so, that,
if the provisions of the Act were applicable,
the applicants could be granted any relief. As I have concluded that
the Act does
apply to these proceedings, the application cannot
succeed.'
[10] The conclusion in that decision was debated at
length by the Constitutional Court in
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and others
.
6
Three judges in that court (Moseneke DCJ, Sachs J and Mokgoro J)
concluded that the surrounding circumstances seen as a whole allowed
a reasonable inference that the owner had given the occupiers consent
to occupy the land. Moseneke DCJ in his judgment found that
the
conduct of the municipality in providing substantial services over a
lengthy period, occupation over a period of 15 years and
the
conditions of occupation imposed by the municipality were the overall
factors from which such an inference may be drawn.
7
O'Regan J in her judgment found that as the upgrading of the
settlement was welcomed by the inhabitants and the process of
upgrading,
which took place in 2002, went way beyond the provision of
basic services it was clear that the municipality was consenting
tacitly
to the occupation of the land.
8
[11] In order to determine the issue raised in this
appeal it is necessary to analyse the evidence pertaining to the
occupation
of the farm. Grobler in his founding affidavit did not
provide information on the circumstances in which the land was
occupied.
As proof of ownership he attached a Windeed Report from the
Deeds Office database which reflects the purchase price as
R100 000,00
and the date of transfer from an entity known as
Patelsons Investments (Pty) Ltd on 17 February 2005. He simply stated
that the
occupiers did not occupy in terms of a lease agreement and
that they were occupying without his consent. He also attached a
document
named 'site plan of 74 Elandsvlei' which shows that there
was an established township on the land on the date of transfer into
his name and he mentioned that since that date seven more shacks had
been erected on the property. This implies that the majority
of
occupiers must have been in occupation before he became owner.
Significantly, he failed to address the question whether, in
terms of
ESTA, the occupiers did not have prior consent, tacit or otherwise.
[12] The answering affidavits of the occupiers were also
brief and did not deal with consent or the circumstances in which the
land
was occupied. They simply gave personal details, the dates of
occupation of the respective individuals and that they receive
municipal
services. These dates go back for many years.
[13] The affidavit by the municipal manager,
Randfontein, simply recited details of the housing programme being
implemented by the
municipality in terms of the South African Housing
Code and did not provide details pertaining to the occupiers other
than stating
that the property was 'first occupied in November 2005'
which was palpable nonsense.
[14] It is not in dispute that the property was first
occupied in 1959. It is furthermore clear that when Grobler purchased
the
property in February 2005, the occupiers had already been in
occupation of the land for a lengthy period of time. The only
contentious
issue therefore is whether they remained in occupation
with consent. As ESTA clearly recognises tacit consent which may be
in the
form of prior consent by other owners or people in charge, the
allegations contained in later affidavits created real and bona fide
disputes of fact with regards to consent. The approach to be adopted
in an instance such as this is trite and was further clarified
by
this court in
Wightman t/a J W Construction v
Headfour (Pty) Ltd and another
9
as follows:
'Recognising that the truth
almost always lies beyond mere linguistic determination the courts
have said that an applicant who seeks
final relief on motion must, in
the event of conflict, accept the version set up by his opponent
unless the latter's allegations
are, in the opinion of the court,
not such as to raise a real, genuine or bona fide dispute of fact or
are so far-fetched or clearly
untenable that the court is justified
in rejecting them merely on the papers:
PlasconâEvans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. See also the analysis by Davis J in
Ripoll-Dausa v
Middleton NO and Others
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C with which I respectfully agree. (I
do not overlook that a reference to evidence in circumstances
discussed in
the authorities may be appropriate.)
A real, genuine and bona fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances
where a bare denial meets the
requirement because there is no other way open to the disputing party
and nothing more can therefore
be expected of him. But even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party
and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing
party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true
or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in
finding that the test is satisfied. I say "generally"
because factual averments seldom stand apart from a broader matrix
of
circumstances all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or
understand
the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made
by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and
will only in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser
who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully
and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust
view of the matter.'
[15] This approach is appropriate in this matter. The
unsatisfactory manner in which the occupiers' defence was conducted
is sketched
in the judgment of the court below. But that does not
dispose of the matter. Grobler bore the onus to establish that the
high court
had jurisdiction. He was faced with the fact that when he
bought the land, there was a settled community there. He failed to
address
the issue of jurisdiction squarely in his founding affidavit
in spite of all the indications that there must have been a real
possibility
of consent to occupy that preceded his purchase. He was
surprisingly silent on why he bought the land despite this and on
what
he intended to do with the community.
[16] The parties filed supplementary affidavits.
In his supplementary affidavit the
municipal manager sought to retract the date of November 2005 and
introduced hearsay evidence
from some of the occupiers stating that
according to them they occupied the land earlier than 1997 with the
consent of a certain
Laher. Clearly the municipal manager could not
provide independent information concerning the basis of occupation
and no reliance
may be placed on his affidavit with regard to the
circumstances of the occupation.
[17] Mr Ben Msimanga, the second respondent (the first
respondent in the court below), who was cited in his capacity as
chairman
of the community of occupiers, also filed an answering
supplementary affidavit in which he made the bald allegation that
they had
occupied the property for a period of 35 years with the
consent of the owner but gave no further details pertaining to the
identity
of the person who gave the consent, his capacity, nor the
circumstances surrounding the consent and the occupation.
[18] In reply to the allegation of consent, Grobler
filed an affidavit in which he denied the consent alleged and set out
for the
first time that he bought the property in February 2005 from
a company known as Patelsons Investments (Pty) Ltd ('Patelsons'). It
would appear that they in turn had bought it during February 1993. He
denied that the previous owner had given consent to the occupiers.
In
support of this he attached confirmatory affidavits from a Mr Baboo
Patel, a shareholder and director of Patelsons and a Mr
Ismailjee, a
son of Laher. These affidavits are still silent on the circumstances
of the occupation prior to the purchase and have
no probative value.
A proper investigation of the circumstances is necessary.
[19] Another relevant consideration is the purchase
price paid by Grobler for the land. The purchase price in 1993, when
the land
was transferred to Patelsons, was R100 000,00. Grobler
in turn purchased the property from Patelsons in 2005 for the same
amount. It is highly unlikely that the value of the land had not
increased after so many years. This unusual factor suggests on
the
probabilities that everyone knew about the occupation and its
probable implications.
[20] The common cause facts regarding the lengthy period
of tenure on the land and the circumstances in which Grobler bought
the
land are such to give credence to the occupiers' later allegation
that they had the necessary consent entitling them to the protection
under ESTA and that there is a real and bona fide factual dispute.
This, coupled with the undisputed evidence that the municipality
provided basic municipal services, show that it is necessary to
clarify the circumstances around the occupation of the land through
oral evidence. The court below took a too narrow view of the matter
and overlooked the reality that the dispute of fact goes to
the heart
of the matter. In this regard the court below erred.
[21] The following order is accordingly made:
The appeal is upheld with no order as to costs in this
court and the order of the court
a quo
is set aside and replaced with an order in the following terms:
'(a) The application is postponed to a date to be
determined by the Registrar of the South Gauteng High Court for the
hearing of
oral evidence.
(b) The issues to be resolved at such hearing are:
(i) whether or not any person, claiming to reside on
portion 24 of the Farm, Elandsvlei, 249, IQ, Randfontein is an
occupier thereon
as contemplated in the Extension of Security of
Tenure Act, 62 of 1997 (ESTA); and
(ii) whether such person had consent, as contemplated in
ESTA, to reside thereon, and
(iii) in consequence of such findings, whether the
provisions of ESTA or the Prevention of Illegal Eviction from and
Unlawful Occupation
of Land Act, 19 of 1998 (PIE) are applicable to
the eviction of such persons.
(c) The evidence to be adduced at the aforesaid hearing
shall be that of any witnesses whom the parties or any of them may
elect
to call, subject however to what is provided below.
(d) Save in the case of any persons who have already
deposed to affidavits in these proceedings, neither party shall be
entitled
to call any person as a witness unlessâ
(i) It has served on the other party, at least 14 days
before the date appointed for the hearing, a statement by such person
wherein
the evidence to be given in chief by such person is set out;
or
(ii) The court, at the hearing, permits such person to
be called despite the fact that no such statement has been so served
in respect
of his or her evidence.
(e) Either party may subpoena any person to give
evidence at the hearing, whether such person has consented to furnish
a statement
or not.
(f) The fact that a party has served a statement or has
subpoenaed a witness shall not oblige such party to call the witness
concerned.
(g) Within 45 days of the making of this order, each of
the parties shall make discovery on oath of all documents relating to
the
issues referred to above, which documents are, or have at any
time been, in possession or under the control of such party.
(h) Such discovery shall be made in accordance with Rule
35 of the Uniform Rules of Court and the provisions of that Rule with
regard
to the inspection and production of documents discovered shall
be operative.
_______________________
Z L L TSHIQI
ACTING JUDGE OF APPEAL
Appearances:
Counsel for Appellant: R T Sutherland SC
G I Hulley
Instructed by
Maserumule Incorporated, Johannesburg
Honey Attorneys, Bloemfontein
Counsel for Respondent: C P Wesley
Instructed by
(1
st
):
Truter Crous & Wiggill, Randfontein
Naudes, Bloemfontein
(2
nd
& 3
rd
): Mogale
Justice Centre
c/o Setlhodi Attorneys, Randfontein
1
PIE provides for the prohibition of unlawful
eviction and provides procedures for the eviction of unlawful
occupiers. ESTA aims
to assist to facilitate long-term security of
tenure but also recognises the right of land owners to apply to
court for an eviction
order in appropriate circumstances.
2
Section 1 of PIE defines an unlawful occupier 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, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a
person whose informal right to land, but for the provisions of the
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act 31 of 1996)'.
3
Section 17(2) of ESTA.
4
1998 (3) SA 1011
(SECLD).
5
1017B-C.
6
[2009] ZACC 16.
7
Para 151.
8
Para 278.
9
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 12 and 13.