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[2021] ZANCHC 55
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Sishen Iron Ore Company (Pty) Ltd v Mokotedi and Others (2580/18) [2021] ZANCHC 55 (29 October 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO:
2580/18
DATE
HEARD:
22/10/2021
DATE
DELIVERED:
29/10/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
SISHEN
IRON ORE COMPANY (PTY) LTD
Applicant
and
JOHN
PANTI
MOKOTEDI
1
st
Respondent
THE
OCCUPIERS OF ERF [....], KATHU TOWNSHIP,
ALSO
KNOWN AS [....] 21
ST
AVENUE, ROOISAND,
KATHU
2
nd
Respondent
GAMAGARA
LOCAL
MUNICIPALITY
3
rd
Respondent
Coram:
MOSES AJ
JUDGMENT
Moses
AJ:
INTRODUCTION
1.
This is an opposed application by the applicant,
Sishen Iron Ore Company (Pty) Ltd for the eviction of its erstwhile
employee, Mr
John Panti Mokotedi, the first respondent, and those who
occupy the property, Erf [....], Kathu Township, also known as 21
st
Avenue, Rooisand, Kathu, the second respondent.
The Gamagara Municipality was cited as the third respondent, but no
order is sought
by any of the parties hereto, against the third
respondent.
2.
This matter has a long history, as will be
reflected in the chronology of events leading up to the above stated
application being
launched and prosecuted in this Court. I became
seized with this matter when it was set down for hearing on 13 August
2021. As
the first and second respondents’ counsel fell ill
just prior to the afore stated hearing date, an application was moved
from the Bar by Mr Jacobs, who then appeared on behalf of the afore
stated respondents, and who stood in for Mr Mello, on 13 August
2021,
which application was granted, and costs to stand over for later
determination. The matter was then postponed to 22 October
2021.
3.
On 22 October 2021, counsel for the above stated
parties appeared before me. I was advised in chambers that, inasmuch
as there was
a proposal on the table, the parties sought some time to
discuss same and take the necessary instructions from their
respective
clients, and to that end, requested the matter to stand
down for a while, which request was granted.
4.
Subsequently the parties advised that there was
initially an agreement between the parties, but that the first
respondent thereafter
retracted his instructions to his counsel in
that regard, and that the matter must therefore proceed on the basis
that it is still
opposed. It thus proceeded on that basis, hence
judgment was reserved, which is delivered herewith.
CHRONOLOGY
OF EVENTS
The
applicant’s case
5.
The
first respondent was employed by the applicant and in consequence of
his employment with the applicant, he qualified for mine
accommodation at a nominal monthly rental, during his employment with
the applicant, in terms of a written lease agreement dated
11
December 2013.
[1]
6.
The
lease agreement was in respect of the rent of a house/property known
as Erf [....], Kathu Township, also known as [....] 21
st
Avenue,
Rooisand Kathu.
[2]
7.
The
property is a residential property registered in the name of the
applicant under Deed of Transfer/Title deed T909/2014. Clause
4.3
thereof provides that the lease agreement would be automatically and
simultaneously cancelled upon the date of termination
of the first
respondent’s employment with the applicant.
[3]
8.
The
first respondent’s employment was terminated on or about 31
July 2017 “
due
to incompatibility”
.
[4]
9.
He was
then supposed to vacate the property by 30 August 2017 and a final
notice to vacate was given to him on 1 September 2017.
[5]
10.
Despite the above, the first and second
respondents have refused to vacate the property, and are still
occupying the property to
date hereof.
The first and
second respondent’s case
11.
As per
his handwritten affidavit dated 1 May 2019
[6]
,
the first respondent avers that he was dismissed unfairly by the
applicant, as a result whereof he made a case in the Labour Court
under case numbers JR 1310/17 and JR 2009/17, for unfair
labour practice, and because of his whistleblowing about corruption,
as a result whereof he opened a case under JG 868/17. All these
cases were/are still pending.
12.
First
respondent has also referred to him having four dependants, including
a wife and three minor kids, and him being unemployed,
as well as
that he has a disability i.e. club foot.
[7]
13.
As it
turned out, and the case that the first respondent has subsequently
pleaded: He admitted that he was formerly employed by
the applicant
as a Safety Officer (in his paragraph 1), hence that he is no longer
so employed.
[8]
14.
First
respondent admitted the lease agreement including the terms of clause
4.3 entered into on 11 December 2013. In fact, he states
that, in
terms of clause 4.3 the applicant agreed to allow him to let the
property by virtue of the employment relationship, and
states
specifically:
[9]
“
The
applicant and I entered into an employment relationship and as a
result of it a lease agreement was signed.”
15.
The
first respondent makes out his case as follows:
[10]
15.1
He challenged the “
alleged
unfair dismissal”
15.2
Which is a dispute pending in the Labour Court;
15.3
Based on a review application in the Labour Court
for the alleged unfair dismissal. Thus he states
“
The
Court should postpone the eviction application sine die pending the
finalisation of the review application in the Labour Court
for the
alleged unfair dismissal.”
This seems to be the
first ground.
16.
First
respondent’s second ground appears in his answer to paragraphs
11 and 12 of the founding affidavit, the contents whereof
he denied.
Herein he makes the following submission:
[11]
The first and second
respondents “
occupied the property as a result of the
employment contract that I have signed with the applicant. The
unlawful occupier is a person
who occupies land without express or
tacit consent of the owner or without any other right in law. The
right law that the made
the first and second respondents (sic) is the
employment relationship. The review application in the Labour Court
seek to set aside
the dismissal and have myself reinstated to my
position as if there was never a dismissal.”
In
paragraph 5.6
[12]
he
“
admits
that we refused to vacate the property in question: all we want is
the Honourable Court to allow the review application to
be heard and
finalised as I strongly believe that my dismissal was unfair. I
challenged the irregular appointments made by the
applicant and I was
dismissed for incompatibility. I vehemently believe that the Labour
Court will set aside the dismissal and
replace it with retrospective
reinstatement and back pay.”
17.
These
allegations and grounds are not sustained, if one compares these
statements/averments with what is stated in the “founding
affidavit” of the first respondent in the review application to
the Labour Court
[13]
, more
particularly paragraph 5 thereof, under the heading “
Chronology
of material facts”
.
[14]
That “
Review
Application”
is
clearly an application for the review of an Arbitration Award, which
was pursuant to him (first respondent) having registered
an internal
dispute on 24 October 2016, for an unfair labour practice
because “
I
was not shortlisted”
and
hence not promoted to the more senior position within the applicant,
of SHE System Specialist, for which he unsuccessfully applied.
Hence,
this is the dispute, which remained unresolved, and was then, on 23
January 2017 referred to the CCMA, where, despite conciliation,
it
could not be resolved in his favour. Where after, it was referred to
arbitration, which led to the Arbitration Award, which
was also not
in his favour, and which essentially is the subject matter of that
“
Review
Application”
.
It is not, and never was a Review Application based on the
termination of his employment with the applicant on or about 31 July
2017.
THE OBJECTIVE FACTS
18.
Therefore, in the context of this application for
eviction the following objective facts stand out:
18.1
The first respondent’s employment was
terminated with effect from 31 July 2017;
18.2
That termination is/was clearly not the subject of
an application to the Labour Court for review based on an “
unfair
dismissal”
and/or and unfair
labour practice.
18.3
The first respondent’s right to stay and
occupy the property of the applicant was dependent on his continued
employment with
the applicant, as determined in the lease agreement;
18.4
In terms of Clause 4.3 of that lease agreement,
the lease agreement would automatically and simultaneously be
cancelled upon the
date of termination of his employment with the
applicant;
18.5
In the premises, there is no employment contract,
hence no employment relationship, with effect from 31 July 2017;
there is no legally
binding lease agreement with effect from 31 July
2017; thus non of these gave/give him any right to stay any longer on
the applicant’s
property.
18.6
It is common cause that the first respondent does
not have the consent, expressly, and/or tacitly, with effect from 31
July 2017,
to stay and occupy the property;
19.
There are two more related issues to be
considered.
19.1
Does the first respondent have “any other
right in law” to justify this continued occupation of that
property? If so,
what law or legal right?
19.2
Does a pending Review Application in another
Court, the Labour Court, in casu, confer any “
right”
on a person who instituted, it in the context of
an eviction application, such as in this case?
19.3
As pointed out above, the “
Review
Application”
relied on by the
first respondent, has nothing to do with the termination of his
employment with effect from 31 July 2017, nor with
his continued
occupation of the applicant’s property, to date hereof. In the
circumstances, the First Respondent and/or the
Second Respondent
clearly have no other right in law to justify their continued
occupation of the property.
The
first and second respondents are therefore clearly in unlawful
occupation of the applicant’s property, and hence unlawful
occupiers.
20.
The first and second respondents did not elaborate
in great detail what steps they have taken to acquire alternative
accommodation
from the date of termination of first respondent’s
employment, and hence also terminating the lease agreement, with
effect
from 31 July 2017.
21.
The
third respondent (Gamagara Municipality) stated that they/it do
not/does not have available land for alternative accommodation.
[15]
22.
The
mining company, the applicant, stated that they also do not have
available/alternative accommodation for the first and second
respondents. In fact, they have a waiting list of current employees
to be given houses/places of accommodation.
[16]
CONCLUSION
23.
Having
carefully considered all relevant facts and circumstances as stated
above, and counsel’s written and oral submissions,
it is
indisputable that the first and second respondents are unlawful
occupiers in terms of the Prevention of Illegal Eviction
from and
Unlawful Occupation of Land Act (“
PIE
Act”
).
[17]
24.
The applicant has made out a clear case in terms
of the said PIE Act for the eviction of the first and second
respondents. I was
advised by counsel that the applicant has no
objection to the Court ordering the eviction of the first and second
respondents by
31 January 2022. There was no objection to this
submission, by and/or on behalf of the first and second respondents.
25.
Given the fact the first and second respondents
were not willing to agree to the proposed settlement, counsel for the
applicant,
Mr Kloek, submitted that costs should then follow the
result, including the wasted costs of 13 August 2021.
26.
Counsel for the first and second respondents, Mr
Mello, submitted that, in the exercise of this Court’s
discretion, the Court
should order that each party to pay their own
costs, inasmuch as the first respondent is still unemployed.
ORDER
27.
In the circumstances, the following order is
hereby issued.
The applicant is granted
an order in terms of Prayers 1.1, 1.2 and 1.3 of the Notice of
Motion, as amended by this Court:
1.1
“
The First Respondent be evicted from the
property situated at Erf [....], Kathu Township, also known as
[....], 21
st
Avenue,
Rooisand, Kathu and everybody occupying the property through him;
1.2
The First and Second Respondents are ordered to
vacate the property on 31 January 2022; and
1.3
In the event of the said Respondents not vacating
the property on 31 January 2022, the Sheriff of the Court or his
lawful appointed
Deputy be authorised and directed to evict the said
Respondents from the property”.
1.4
Each party to pay its/their own costs.
MOSES
AJ
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
the applicant
Adv.
v WJ Kloek
(oio)
Hogan Lovells Johannesburg Inc (Elliot Maris
Kimberley)
For
therespondents: Adv.
LMS Mello
(oio)
Thomas Kouter Attorneys, Kimberley
[1]
Record
p46,
Annexure
C
[2]
Record
p33
[3]
Record
p34
[4]
Record
p58, Annexure D
[5]
Record
p59, Annexure E
[6]
Record
p 71-73
[7]
Record
p71
[8]
Record
p122
[9]
Record
p124
[10]
Record
p124
[11]
Record
p124
[12]
Record
p125
[13]
Record
p149 – 153
[14]
Record
p 151
[15]
Record
p172-175, Report on Land Availability for Evictees
[16]
Record
p184 – 185 The Applicant’s Further Supplementary
Affidavit.
[17]
Act
19 of 1998