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[2021] ZANCHC 29
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Ka! Garib Municipality v Booysen and Others (1238/2020) [2021] ZANCHC 29 (9 July 2021)
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IN
THE
HIGH
COURT OF SOUTH
AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No:1238/ 2020
Argued:
14 May 2021
Date
delivered: 09 July 2021
In
the matter
between:-
KAI!
GARIB
MUNICIPALITY
APPLICANT
and
FELICITY
BOOYSEN
FIRST RESPONDENT
MARTIN
M.
BOOM
SECOND
RESPONDENT
LLEWELLYN
JACOBS
THIRD RESPONDENT
RANDALL
BOCK
FOURTH RESPONDENT
DENZIL
PIETERS
FIFTH RESPONDENT
GREGORY
DAMES
SIXTH RESPONDENT
KOENIE
KOTZE
SEVENTH
RESPONDENT
GARSWIN
GALANDT
EIGHTH RESPONDENT
AMBROSIUS
THOMAS
NINTH RESPONDENT
NEAL
COETZEE
TENTH RESPONDENT
SHADIA
BOOYSEN
ELEVENTH
RESPONDENT
S.
HEYENS
TWELFTH RESPONDENT
JOHANNES
AUGUST
THIRTEENTH RESPONDENT
CEDRIC
G.
BASSON
FOURTEENTH
RESPONDENT
MIETJIE
WITBOOI
FIFTHTEENTH RESPONDENT
PRIESTER
CLOETE
SIXTEENTH RESPONDENT
RONICIA
CLOETE
SEVENTEENTH RESPONDENT
A.
ISAAKS
EIGHTEENTH RESPONDENT
GEORGE
CLOETE
NINETEENTH RESPONDENT
SERGIO
OLIVIER
TWENTIETH RESPONDENT
LETIEFA
S. POFADDER
TWENTY
FIRST RESPONDENT
JESSICA
WHITE
TWENTY
SECOND RESPONDENT
ZELNA
VAN
ROOI
TWENTY
THREE RESPONDENT
O.
KORDOM
TWENTY FOUR RESPONDENT
E.G.
JANSEN
TWENTY FIVE RESPONDENT
ILLEGAL
OCCUPANTS OF THE PORTION OF LAND
ENCOMPASSING
ERF 386, ERVEN 1061, 158 AND
159,
ERVEN 198, 1616 AS WELL AS THE REMAINING
PORTION
OF ERF 431
KAKAMAS TWENTY
SIXTH
&
FURTHER RESPONDENTS
CORAM:
STANTON AJ
JUDGMENT
STANTON,
AJ
INTRODUCTION:-
[1]
The applicant seeks an order evicting
the respondents from vacant land that belongs to the applicant and/or
falls under its control
in Kakamas. The application is filed in terms
of the provisions
of
section
4(2)
of the Prevention of Illegal
Eviction
from
and
Unlawful
Occupation
of
Land
Act,
Act
19
of
1998 (
"the
Act').
[2]
The first to fourth,
tenth, eleventh,
seventeenth,
nineteenth
to twenty
third and twenty fifth to twenty sixth
respondents ("the respondents") oppose the application and
filed
their
answering affidavits.
The
remainder of
the
respondents filed a notice
of intention
to oppose the application, but no
answering affidavit. The ninth
respondent passed away on 06 September 2020.
[3]
The immovable properties to which this
application relates are situated in Kakamas, on both sides of
Hofmeyer and Luckhoff Streets,
comprising of erven 386, 1061, 158,
159, 198, 431, 1616 and the remaining extent of erf 431. For ease
of
reference
I
shall
refer
to
these
erven
as
"the
immovable
property".
[4]
The applicant is the registered
owner of the following erven:-
4.1
The remaining extent of Erf 431;
4.2
Erf 158;
4.3
Erf 159;
4.4
Erf 196;
4.5
Erf 431; and
4.6
Erf 386
.
[5]
Erf 1061 is registered
in the name of the Northern Cape
Provincial
Government,
but falls under the control of the applicant.
[6]
Erf 1616 is registered in the name of Mr
JP Vermaak. The Kakamas Hospital is situated on erven 431
and 161.
[7]
According to the applicant, the
respondents started demarcating the stands on the immovable property
on 15 June 2020 and by the time
that the founding affidavit was
deposed to (on 23 July 2020), some of the respondents had already
erected structures thereon and
took occupation thereof. According to
the applicant, the respondents
acted
without its consent
and did not have other right in law to
have taken occupation or erect any structures.
[8]
The gists of the respondents' opposition is
that they are entitled to occupy the immovable
property in
view
of
the
fact
that
a
committee
3
ward
member, Rochelle M
atthys,
informed community members during September 2017 that she was
instructed by a ward 3 councillor, Brenda Bock, to allocate
the
plots. The respondents further allege that Ms Bock encouraged them to
build on the property to force the applicant
to provide municipal
services.
[9]
Mr J Harmse,
on
behalf
of
the
respondents,
raised
two
points
in
limine
when
the application
was argued, namely
that:-
9.1
Mr JB Vermaak, the owner of erf 1616, is
not a party to this application and did not file a confirmatory
affidavit; and
9.2
The applicant filed this application on
the basis of section
4(2)
of the Act, but during argument,
relied
on section
5(2)
of the PIE Act, which he submitted the applicant is not entitled to
do.
APPLICABLE
LAW:-
[10]
It
is trite that an unlawful occupier
that
may be evicted in terms of the PIE Act, is defined as
''a
person who occupies land without the express or tacit consent of the
owner or person in charge, or without any other right in
law to
occupy such land"
[1]
[11]
The Act balances two interests that are
in conflict, namely the ownership rights of land owners and the right
of access to housing
of those in occupation of premises. The
touchstone for the balance is the concept of justice and equity. What
is just and equitable
must relate not only to those who occupy land
unlawfully, but also to the owner
of
the land.
[12]
The Act provides guidance to the courts in
determining the
approach
to eviction now required by section
26(3) of the Constitution. Its central operative provisions are
section 4, which deals with evictions
sought by owners or persons in
charge of property, and section 6, which is concerned with eviction
proceedings brought by Organs
of State. Section 5 provides for urgent
proceedings of eviction.
[13]
Section 4(8) and 4(9) of the Act state
as follows:-
"(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 (BJ
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.
"
[14]
Section
6(1)
of
the
Act
governs
evictions
at
the
instance
of
an organ
of
state
and
reads:-
(1)
An organ of State may institute
proceedings for the eviction of an unlawful occupier from land which
falls within its area of jurisdiction,
except where the unlawful
occupier is a mortgagor and the land in question is sold in a sale of
execution pursuant to a mortgage,
and the court may grant such an
order if
it
is just and equitable to do so,
after considering all the relevant circumstances, and if-
(a)
the consent of that organ of
State is required for the erection of a building or structure on that
land or for the occupation of the
land, and
the unlawful occupier is
occupying a building or structure on that land
without such consent having been
obtained,· or
(b)
it
is in the public interest to
grant such an order.
(2)
For the purposes of this section,
''public interest includes the interest of the health and safety of
those occupying the land and
the public in general.
(3)
In deciding whether it is just
and equitable to grant an order for eviction, the court must have
regard to
-
(a)
the circumstances
under
which the unlawful occupier
occupied the land
and erected the building or
structure;
(b)
the period the unlawful occupier
and his or her family have resided on
the land in question; and
(c)
the availability to the unlawful
occupier of suitable alternative
accommodation
or land.
"
[15]
The
Constitutional Court dealt in detail with the considerable
difference
between the two provisions in section
4
and
6
of
the
Act
in the
matter
of
Port
Elizabeth Municipality v Various Occupiers
[2]
("the
Port Elizabeth judgment")
where
it
held
that:-
''Simply
put, the ordinary prerequisites for the Municipality to be in a
position to apply for an eviction order are that the occupation
is
unlawful and the structures are either unauthorised, or unhealthy or
unsafe. Contrary to the pre-constitutional position however,
the mere
establishment of these facts does not require the court to make an
eviction order. In terms of section 6, they merely trigger
the
court's discretion. If
they
are proved, the court then may (not must) grant an eviction order if
it is just and equitable to do so. In making its decision
it must
take account of all relevant circumstances, including the manner in
which occupation
was
effected,
its
duration and the availability of suitable alternative accommodation
or land.
"
[16]
I,
however, also heed the warning of the Constitutional Court in the
Port Elizabeth
judgment
where
it expanded as follows:-
[3]
"There
is nothing in section 6 to suggest that the three specifically
identified circumstances are intended to be the only ones
to which
the court may refer in deciding what is just and equitable. They are
peremptory but not exhaustive. It is clear both from
the open-ended
way in which they are framed and from the width of decision-making
involved in the concept of what is just and equitable,
that the court
has a very wide mandate and must give due consideration to all
circumstances that might be relevant. Thus the particular
vulnerability of occupiers referred to in section 4 (the elderly,
children, disabled persons and households headed by women) could
constitute a relevant circumstance under section 6. Similarly,
justice and equity would take account of the extent to which serious
negotiations had taken place with equality of voice for all
concerned. What is just and equitable could be affected by the
reasonableness
of offers made in connection with suitable alternative
accommodation or land, the time scales proposed relative to the
degree of
disruption involved, and the willingness of the occupiers
to respond to reasonable alternatives put before them.
The
combination of circumstances may be extremely intricate/ requiring a
nuanced appreciation of the specific situation in each case.
Thus/
though there might be a sad uniformity in the conditions of
homelessness and desperation which lead to unlawful occupations/
on
the one hand, and the frustration of landowners at being blocked by
intruders from enjoyment of their propef't½ on the other,
the actual
details of the relationships involved are capable of infinite
variation. It is not easy to classify the multitude of places
and
relationships involved. This is precisely why, even though
unlawfulness is established, the eviction process is not automatic
and why the courts are called upon to exercise a broad judicial
discretion on a case by case basis. Each case accordingly has to
be
decided not on generalities but in the light of its own particular
circumstances. Every situation has its own history, its own
dynamics/
its own
intractable
elements
that have
to be lived with (at
least for the time being)
and its own creative
possibilities that have to be explored as far as reasonably possible.
The proper application of PIE will therefore
depend on the facts of
each case/ and each case may present different facts that call for
the adoption of different approaches.
''
[17]
Mr JM Rust, on behalf of the applicant,
submitted that this Court should distinguish the matter
in
casu
from the Port Eizabeth
judgment/ by virtue of the following, and that an eviction order
should accordingly
be
granted:-
17.1
The respondents have not been in
occupation of the immovable property for a long period. According to
the applicant, the demarcation
of stands only started in June 2020;
17.2
The respondents elected not to comment
on the applicant's version in their answering affidavit, but merely
took note
thereof
and did
not
place a contradicting version before Court;
17.3
The applicant intends to put the
property to productive use, firstly as a cemetery, and secondly, the
respondent is awaiting approval
from COGHSTA to commence with the
development of the property for residential use, which would have a
negative impact on the intended
developments
to the benefit of the entire community;
17.4
The respondents have not made any
attempt to engage with the applicant to discuss their circumstances
and need for housing; and
17.5
It is questionable whether the
respondents are in fact in need of housing, as no such averment has
been made in any the answering
affidavits.
EVALUATION
OF THE EVIDENCE:-
[18]
Where
a respondent fails to admit or deny an allegation made in the
founding papers, or to confess and avoid such
allegation,
the court will, for the purpose
of
the application,
accept
the
applicant's
allegation
as
correct.
[4]
[19]
On an evaluation of the affidavits
exchanged, the following evidence is pertinent:-
19.1
It is undisputed that the applicant is
the owner of the immovable property
and
that the immovable property
registered
in the name of Mr. JP Vermaak falls
under the direct control of the applicant;
19.2
The respondents elected not to disclose
their addresses in the answering affidavits. The sheriff's returns of
service, however, confirm
that the application was served personally
on the first, third, tenth, eleventh, twentieth to twenty-third and
twenty-fifth respondents
at addresses other than that of the
immovable property. The application was served at alternative
addresses of and on family members
and neighbours of the fourth,
nineteenth and twenty-fifth
respondents
and by affixing at the residence of the second respondent, after
confirming that the second respondent
resides at this property;
19.3
There are no municipal services such as refuse
removal or sanitation available on the immovable property, and the
occupation
thereof
creates a health risk;
19.4
The respondents had not yet been in
occupation of the immovable property
for
six months when the proceedings
commenced;
19.5
No evidence has been placed before the
Court to show that the respondents do not have alternative
accommodation available to them.
According to the returns of service,
the respondents clearly have alternative accommodation
available to them;
19.6
The respondents elected not to respond
to the evidence by
the
applicant that there are no elderly or disabled people occupying the
immovable property or households headed by women. No personal
circumstances
were
in fact disclosed to assist the Court;
19.7
A confirmatory affidavit by Ms Matthys
is attached to the answering affidavit, but no confirmatory affidavit
by Ms Bock is attached.
[20]
Mr Rust submitted that, on the
respondents' version, the discussion
between Ms Matthys and the community
members
had
taken place during 2017 and even if the respondents could indeed rely
on the permission of a ward committee member and/or councillor,
which
is denied, they cannot allege that they acted thereon
when the action happened almost three
years later.
[21]
In terms of section 74(b) of the Local
Government:
Municipal
Structures
Act,
Act
117
of 1998, a
ward
committee
has such
duties and
powers
as
the
metro
or local council may delegate to it in
terms of section 59 of the Local Government:
Municipal Systems Act, Act No. 32 of
2000.
[22]
Accordingly, a ward committee member and/or
councillor does not have the authority to allocate property to
community members for residential
or other purposes.
[23]
To sum up: in the light of the fact that
the respondents
have
not lived on the land
in
question,
that
there is evidence
that
the
municipality needs to evict the occupiers in order to put the land to
some other productive use, that the respondents are not
homeless and
in need, I am persuaded that it is just and equitable to order
the eviction of the respondents.
[24]
In view of the fact that the respondents
have alternative accommodation available to them, I determine that it
will be just and equitable
to afford the respondents
15 (fifteen)
days to vacate the immovable
property.
[25]
It remains to be said that this decision
in no way precludes efforts to find a solution to a situation that
is
manifestly
unsatisfactory
to all concerned
.
It would be in the interest of all
parties if a solution through the appointment of a skilled negotiator
acceptable to all sides,
is appointed to mediate the process further,
especially taking into consideration that the structures already
erected on the immovable
property are brick and mortar structures and
have been erected on land earmarked
for
the development
of
an informal settlement.
COSTS:-
[26]
No submissions were made that the costs
should
not
follow
the
event and I find no reason to deviate
from the normal practice.
WHEREFORE
THE FOLLOWING
ORDERS
ARE MADE:-
1.
The first to the twenty sixth
respondents,
and
all those occupying
through
them, shall vacate the premises situated at Kakamas, on both sides of
Hofmeyer Street and Luckhoff Street, and comprising
of erven 386,
106, 158. 159, 198, 161 and the remaining extent of 431 ("the
property")
and
also remove all structures and their
belongings from the property within 15 (fifteen) days from the date
of this order;
2.
Failing complaince with prayer 1, the
sheriff of this Court is authorised and directed, with the assistance
of the South African Police
Service if necessary, to
evict the respondents and all those
occupying through them from the property within 2 (two) days after
the period referred to in 1
above has lapsed;
3.
The applicant is authorised to demolish
the building structures on the property and to remove any and all
fences and poles planted
on the property within 2 (two) calendar
days, or as soon thereafter
as the applicant is able to do so, after
the respondents and all those occupying through them have vacated or
been evicted from the
property
(whichever
is the case);
4.
The respondents are interdicted from
occupying and/or erecting any structures on the property after they
have been vacated or have
been evicted from same; and
5.
The respondents, jointly and severally,
the one to pay the others to
be
absolved, shall pay the costs of this application.
__________________
STANTON
AJ
ACTING
JUDGE
APPEARANCES:
For
the Applicant:
Advocate JM Rust
On
instruction of Venters Rust Incorporated
For
the 1
st
I
2
nd
3
rd
4
th
10
th
1
1
th
17
th
19
th
20
th
21
st
22
nd
23
rd
25
th
And 26
th
Respondents:
Advocate
J
Harmse
On
instruction of Engelsman Magabane Incorporated
[1]
Section 1 of PIE.
[2]
20
04
(12) BCLR 1268
{CC) at
paragraph
[16].
[3]
2004
(12) BCLR 1268
{CC) at
paragraph
[30]
to
[31].
[4]
Moosa
v Knox
1949 (3) SA 327
(N) at 331. United Methodist Church of South
Africa v Sokufundumala
1989 (4) SA 1055
(0)
at
1059A; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634.