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[2021] ZAMPMBHC 20
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Hotazel Developments (Pty) Ltd v Mnisi and Others (1024/2020) [2021] ZAMPMBHC 20 (9 June 2021)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
MPUMALANGA DIVISION (MAIN SEAT)
1.
REPORTABLE:
YES/
NO
2.
OF INTEREST TO OTHER JUDGES: YES/
NO
3.
REVISED.
Case Number:
1024/2020
In the matter between:
HOTAZEL
DEVELOPMENTS (PTY) LTD
Applicant
and
SINKY
THOMAS MNISI
First
Respondent
AND NINE
OTHER RESPONDENTS
JUDGMENT
Roelofse AJ:
[1]
In terms of the provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“
PIE”
),
no one may be evicted
[i]
from their home
[ii]
,
or have their home demolished without an order of court made after
considering all the relevant circumstances.
[iii]
PIE provides for the procedure
[iv]
and circumstances
[v]
under which an unlawful occupier’s
[vi]
occupation may be terminated.
[2]
The applicant seeks orders: confirming that the first
respondent’s occupation of the applicant’s property
constitutes
unlawful occupation as meant in PIE
[vii]
;
the eviction of the first respondent and his family members from the
applicant’s property
[viii]
,
together with relief ancillary thereto
[ix]
.
[3]
Only the first respondent opposed the application.
[x]
[4]
The applicant describes the purpose of the application as
follows:
[xi]
“
The
main purpose of this application is to obtain an eviction order
against the first respondent, his family members and/or any
other
persons who may reside through him in the house on the property, in
terms of The
Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act, No.: 19 of 1998
as amended………………….[T]he
Extension of Security of Tenure Act, No.: 62 of 1997
……is
not applicable in respect of this matter.”
and
“
Thus,
an order will be sought to the extent that the first respondent is
evicted from “the house” situated on “the
property”, together with all his family members and/or any
other persons who may reside through him, together with all their
movable assets, including but not limited to any possible livestock
they may own.”
[5]
The “house” the applicant refers to and from which
it seeks the eviction, is situated on the Remaining Extent of the
farm Barclays Vale, 288 Registration Division JT (“
the
property”
)(as it was known when the application was
launched).
[xii]
[6]
Ms. Harriet Mnisi is the first respondent’s sister. Ms.
Mnisi resides in the house together with the first respondent’s
family members whose identifies are not disclosed by the first
respondent. With regards to the house, the first respondents’
version is as follows:
“
I
have not “constructed a house” on the farm. My family
live in a house constructed by Mr. Greathead. I tried to help
my
sister to renovate the house and built a wall around it, but Hotazel
asked that the construction be stopped
.”
[xiii]
and
“…
.My
sister lives in a building that has always been used as a home.”
[xiv]
The first respondent’s defences
[7]
The first respondent raises two defences.
[8]
Firstly, the first respondent disputes that the applicant is
the owner of the land and thus that the applicant lacks standing in
the application.
[xv]
[9]
Secondly, the first respondent alleges that he does not reside
on the farm and therefore, he is not an occupier as contemplated in
PIE
[xvi]
.
In this regard, the first respondent states:
[xvii]
“
I
was born and grew up on the farm, but it is not my primary residence.
My sister, Harriet Mnisi, and several of my extended family
members
live there, and I visit them from time-to-time. But the farm was last
my primary residence in 1981. In that year, I left
the farm to look
for work in Johannesburg, where I have become a successful
businessman.”
and
“
I
am advised that PIE applies to the eviction of unlawful
occupiers
.
I am furthermore advised that an “occupier” under PIE is
a person who has his or her primary place of residence on
the
relevant land. The PIE Act does not apply to visitors or extended
family members who may from time to time stay on land occupied
by the
person or family member who they are visiting.”
[xviii]
(the first respondent’s underlining)
and
“
I
am just such a person. I do not live on the farm, but I visit my
family and friends on it from time to time
.”
[xix]
[10]
In addition, the first respondent states:
[xx]
“
Hotazel
has sought and obtained an order declaring that I am not an occupier
of the farm, and interdicting me from taking possession
of the farm.
Hotazel is adamant that I do not live on the farm
and
has obtained a court order to that effect
.
I have no idea why it now wants to “evict” me from a farm
everybody accepts I do not live on.”
(my
underlining)
[11]
The essence of the first respondent’s defence is
captured in paragraph 10 of the answering affidavit as follows:
“
Accordingly,
this application is stillborn. It is to pursue a goal that Mr. Smuts
has not disclosed to this Court, under a statute
which simply does
not apply between me and Hotazel. This application is dishonest and
an abuse of process.”
[xxi]
Ms. Mnisi’s
situation
[12]
The first respondent alleges that: Ms. Mnisi lives with
her family in the house; Ms. Mnisi occupies the house “through”
him; and that Ms. Mnisi has occupied the house for a long time.
[13]
If the first respondent’s version over Ms. Mnisi’s
occupation of the house is accepted, one may be tempted to consider
whether both the provisions of PIE as well as the provisions of the
Extension of Security of Tenure Act 62 of 1997 (“ESTA”)
may not apply to Ms. Mnisi. This notion is immediately gainsaid by
the fact that neither the first respondent nor Ms. Mnisi
[xxii]
relied upon the protecting granted to occupiers in terms of the
provisions of PIE or ESTA in opposing the application.
[14]
I proceed to deal with the first respondent’s defences.
The
locus standi
defence
[15]
The first respondent alleges that the applicant has failed to
allege and prove that it is the owner of-, or that it is in control
of the property. This is what the first respondent says:
[xxiii]
“
Mr
Smuts seeks relief in circumstances where he also knows that Hotazel
is neither the owner nor the person in charge of the property….”
[16]
There is no merit in this allegation. Firstly, Mr. Smuts
alleges at numerous places in the founding affidavit that the
applicant
is the owner of the land. Secondly, Mr. Smuts
explains in its replying affidavit the way the description of the
property
has transformed through consolidation and subdivision. Mr.
Smuts explains that the applicant is still the owner of the property
upon which the house is situated and in respect of which the eviction
order is sought.
[17]
Mr. Smuts’ explanation of the transformation of the
property description was challenged by the first respondent in an
application
in terms of the provisions of Rule 6(15)
[xxiv]
of the Uniform Rules.
[18]
Rule 6(15) requires that material sought to be struck must be
scandalous, vexatious or irrelevant and that prejudice must be
established
if the material is not struck out.
[19]
The basis of the first respondent’s application to
strike out is that the applicant is seeking to redefine and
redescribe
the portions of land in respect of which the applicant is
seeking an eviction and therefore the applicant has fundamentally
changed
its case in reply. Clearly the first respondent sought to
rely on prejudice caused by the perceived change in the applicant’s
case in reply.
[20]
There is simply no merit in this objection. The house did not
move. All that has happened is that the land description upon which
the house is situated has changed. There can be no doubt that the
applicant is still seeking an eviction order in respect of the
specific house situated on the same land albeit under a different
description. The evidence in the replaying affidavit regarding
the
property is in any event relevant and I see no prejudice to the first
respondent if the evidence is allowed to stand.
[21]
While I am addressing the striking out application, I dispose
of the striking out application in all respects.
[22]
The first respondent also objected to the applicant referring
in reply to the previous applications mentioned in its founding
affidavit.
In this regard, the first respondent objects to the
reference in the replying affidavit to specific paragraphs in the
previous
applications mentioned in the founding affidavit. The first
respondent laments that the material in the previous applications
should
have been identified and disclosed in the founding affidavit.
[23]
The outcome of two applications under case numbers: 783/2017
and 965/2017 (“
the previous applications”
) are
particularly relevant for the determination of this application and
the rule 6(15) application.
[xxv]
The judgment and order made in the previous applications forms part
of the evidential material before this court. As a matter of
fact,
when confronted by the finding and order in the previous
applications, the first respondent confirms the judgment and the
order made therein. In this regard, the first respondent says:
[xxvi]
“
I
note that portions of the judgment of Legodi JP relied on here and
confirm that I do not live on the property. Legodi JP finds
that I am
“not a resident, occupier”. This is quite correct…”
[24]
The first respondent, by relying on the judgment in the
previous applications in his defence cannot simply now proclaim
prejudice.
In any event, the applicant’s averments in the
previous applications applications lead to the judgment and order
that was
granted and therefore is also relevant in this application.
There is no merit in this objection.
The PIE defence
[25]
In respect of the PIE defence, the first respondent alleges
that he is not an occupier as contemplated in PIE. PIE does not
outlaw
all evictions - it outlaws illegal evictions. PIE does not
detract from the property rights of the owner of land. It merely
provides
for the protection of unlawful occupiers against illegal
eviction. A process must be followed before an eviction order is
granted
and executed, the focus being on the protection of an
occupier’s right to access to housing. Obviously, a person who
is not
in occupation of land as contemplated in PIE, is not entitled
to the protection PIE affords. Therefore, in such an instance, the
owner of land is entitled to the common law protection of his/her
property rights and the enforcement of same on common law grounds.
This includes vacant and undisturbed possession in addition to bare
dominium.
[26]
I decide the relief sought in the first prayer of the notice
of motion
[xxvii]
on the first respondent’s version. In doing so, I am unable to
order confirmation that the first respondent’s occupation
of
the property constitutes unlawful occupation as meant in PIE.
[27]
I return to Ms. Mnisi’s situation
[28]
Ms. Mnisi, together with the first respondent’s
family members are still in occupation of the house despite a
judgment delivered
on 3 April 2018 and the order made by His Lordship
Mr Justice Legodi JP on 1 February 2018 in the previous applications
under case
numbers: 783/2017 and 965/2017. The previous applications
were launched by the applicant and another party against,
inter
alios
, the first respondent
[xxviii]
and Ms. Mnisi.
[xxix]
The previous applications related to the same land as the land in
this application.
[29]
The following finding was made by the court in those
applications:
“
[T]he
applicants have provided sufficient information pointing to the fact
that neither of the respondents to which the order related,
are
resident on the property…..”
[xxx]
The court ordered as
follows (“
the order”
):
“
No
person, including the tenth to sixteenth respondents, their members
and beneficiaries or any other person…..shall prevent
them
[the applicant, persons acting on the
applicant’s behalf, shareholders, employees, its
representatives, shareholders, any
guest or visitor to the applicant,
the applicant’s contractors] …
from
accessing or occupying the properties.” –
paragraph
1.2 of the order
.
“
No
person, including the tenth to sixteenth respondents, their members
and beneficiaries or any other person, shall be entitled
to enter the
properties of the applicant for any reason whatsoever without written
permission of the applicant.”-
paragraph
1.5 of the order
.
[30]
The order stands unchallenged. The order clearly interdicts
the first respondent, Ms. Mnisi and the first respondent’s
family
members from occupying the properties. In addition, the order
interdicts them from entering the properties without the express and
written permission of the applicant. I find that the interdicts
include the house for the house is situated on the property being
one
of the properties to which the order pertained.
[31]
Considering the order, the first respondent, Ms. Mnisi and the
other persons occupying the house are in clear disobedience of both
paragraphs 1.2 and 1.5 of the order.
[32]
In conclusion, the First Respondent, Ms. Mnisi and those
family members of the first respondent living with her in the house
were
already found not to be occupiers. Nothing in the papers before
me show that their situation has changed. As such, they have no
defence against their eviction either under PIE or at all in this
application. The applicant is entitled to an order evicting
the
first respondent and all other persons from the house, including the
property registered as the farm Kranskop 1041 JT.
The ancillary relief
sought
[33]
The applicant has demonstrated that the conduct of the first
respondent, Ms. Mnisi and the first respondent’s family members
are in clear defiance and in open disregard of the order. I do not
foresee that the first respondent, Ms. Mnisi and the first
respondent’s family members will voluntarily comply with the
eviction order. Therefore, the eviction order may need to be
executed
by the Sheriff assisted by the second to fourth respondents. The
ancillary relief is warranted and shall be granted.
Costs
[34]
As to costs, the applicant has been successful in obtaining
the main relief the application was aimed at – the eviction of
the first respondent and all other persons occupying the house. These
persons have disobeyed the order and should have known that
the order
prevented them from entering the house let alone occupying same as
from the date of the order. Ms. Mnisi and none of
the other persons
in occupation of the house participated in these proceedings. A
punitive costs order would have been warranted
against Ms. Mnisi and
the other persons occupying the house because of their disregard of
the order had they participated in the
proceedings. A punitive costs
order is not requested. However, the first respondent’s
opposition of this application on spurious
grounds together with his
clear disobeying of the order warrants this court’s
displeasure. He must pay the costs of the application
on a punitive
scale. I am of the view that the employment of two counsel was
warranted.
[35]
In the premises, I make the following order:
(a) The
Rule 6(15) application is dismissed.
(b) Prayer 1 of
the notice of motion is dismissed.
(c) The first
respondent, and all other persons in occupation of the house
(also
known as “the clubhouse”) (“
the
evictees”
) situated on the farm Kranskop 1041 JT (“
the
house”
), is hereby evicted from the house and the farm
Kranskop 1041 JT.
(d) The evictees shall give
vacant possession of the house to the applicant within 30 days
of the
date of this order.
(e) In the event the
evictees fail to comply with the order in paragraph (d) above, the
Sheriff of this court and the second to fourth respondents are hereby
authorised and directed to carry out the eviction of the
evictees.
(f) The first
respondent is ordered to pay the costs of this application and the
Rule 6(15) application on an attorney and client scale, such costs to
include the costs consequent upon the employment of two counsel.
Roelofse AJ
Acting Judge of
the High Court
DATE OF
HEARING:
25
May 2021
DATE OF
JUDGMENT:
9
June 2021
APPEARANCES
FOR THE APPLICANT:
Adv R du Plessis SC
Adv G Bench
INSTRUCTED BY:
Du Toit-Smuts Attorneys
FOR THE RESPONDENTS:
Adv. S Wilson
Adv Fakier
INSTRUCTED
BY:
Kropman Attorneys
[i]
Evict and eviction is defined in PIE as follows:
‘‘
evict’’
means to deprive a person of occupation of a building or structure,
or the land on which such building or
structure is erected, against
his or her will, and ‘‘eviction’’ has a
corresponding meaning.
[ii]
‘‘building or structure’’ as defined in PIE,
includes any hut, shack, tent or similar structure or any
other form
of temporary or permanent dwelling or shelter.
[iii]
Recorded in the Preamble to PIE.
[iv]
Sub-sections (1) to (5) of section 4 of PIE.
[v]
Sub-sections (6) to (12) of section 4 of PIE.
[vi]
Defined in section 1 of PIE 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 this
Act, would be protected by the provisions
of the Interim Protection
of Informal Land Rights Act, 1996 (Act No. 31 of 1996).”
[vii]
Prayer 1 of the notice of motion.
[viii]
The land in respect of which the applicant seeks an order for
eviction is described as: The Remaining Extent of Portion 4 and/or
the Remaining Extent of the Farm Barclays Vale, 288 Registration
Division JT, Province Mpumalanga. The land is farmland. PIE
applies
in respect of all land throughout the Republic -section 2. It
therefore also pertains to the land in this application.
[ix]
Prayer 4 of the notice of motion, seeking that in
the event the first respondent and his family members fail to vacate
the property,
the eviction order be carried out by the second to
fourth respondents together with the Sheriff. In prayer 5 of the
notice of
motion, the applicant seeks costs against the first
respondent and other unlawful occupiers jointly and severally.
[x]
The other respondents are: the Minister of the
South African Police Services (second respondent); the Commissioner
of the South
African Police Services (third respondent); the Station
Commander of the Nelspruit Police Services (fourth respondent); the
Regional
Land Claims Commissioner (fifth respondent); the Mawulu
Communal Property Association (sixth respondent); the Mawulu
Community
Property Association (seventh respondent); the Mbombela
Local Authority (eighth respondent); and the Chief Land Claims
Commissioner
(ninth respondent).
[xi]
Paragraphs 19 and 20 of the founding affidavit.
[xii]
Paragraph 17 of the founding affidavit.
[xiii]
Para. 59 of the answering affidavit.
[xiv]
Para. 75 of the answering affidavit.
[xv]
The
locus standi
defence.
[xvi]
The PIE defence.
[xvii]
Paragraph 5 of the answering affidavit.
[xviii]
Para. 31 of the answering affidavit.
[xix]
Para. 32 of the answering affidavit.
[xx]
Paragraph 34 of the answering affidavit.
[xxi]
Mr. Smuts is a director of the applicant and the
deponent to the answering affidavit.
[xxii]
Who did not participate in any manner whatsoever
in the application.
[xxiii]
In paragraph 9 of the answering affidavit.
[xxiv]
Rule 6(15) provides:
“
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless
it is satisfied that the applicant will be prejudiced in his case if
it be not granted.
[xxv]
See paras. 29 to 30 below.
[xxvi]
Paragraph 67.
[xxvii]
ibid
. para. 2
[xxviii]
The fifteenth respondent in those applications.
[xxix]
The fourteenth respondent in those applications.
[xxx]
Paragraph 22 of the judgment.