Nontombi Gcaba & others v Ntabankulu Local Municipality & others (2760/2019) [2021] ZAECMHC 17 (30 May 2021)

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[2021] ZAECMHC 17
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Nontombi Gcaba & others v Ntabankulu Local Municipality & others (2760/2019) [2021] ZAECMHC 17 (30 May 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 2760/2019
In
the matter between:
NONTOMBI
GCABA

1
st
Applicant
PERSONS
LISTED IN ANNEXURE “X”
2
nd
to 85
th
Applicants
and
NTABANKULU LOCAL
MUNICIPALITY
1
st
Respondent
MAKHOSONKE
DIKO
2
nd
Respondent
MBANGWENI TRIBAL
COMMUNITY
3
rd
Respondent
PHIKO SECURITY
SERVICES
4
th
Respondent
LWANDLOLUBOMVU
TRADITIONAL COUNCIL
5
th
Respondent
CHIEF
NDZULULWAZI F. SIGCAU
6
th
Respondent
JUDGMENT
MBENENGE JP:
[1]
On 11 December 2018 the first respondent obtained an order under Case
No. 5802/2018 interdicting and restraining
Mr Sivuyile Mankahla and
“
unknown
persons demarcating sites and erecting structures
[on]
Erf
87, Ntabankulu
”
[1]
from-
(a)
carrying on the construction of any
building activities on the property; and
(b)
soliciting the services of any person who
had not been cited therein from conducting or carrying on any
building activities on or
in respect of the property.
[2]
The order also embodied a
mandamus
which directed “
the
respondents
” to “
demolish all illegal structures erected
[on]
the property,”
and authorized the Sheriff, duly
assisted, if necessary, by members of the South African Police
Service (the police), to give effect
to the order “
by removing
any person found in the property and demolishing all the illegal
structures within the property
.”
[3]
Ms Nontombi Gcaba and other fifty-four persons
[2]
listed in annexure “X” to the affidavit filed in support of the
instant application (the applicants) had been resident in and
comprised a community referred to as Ndakeni, located on the
property, since, at the very least, August 2018.
[3]
[4]
It is common cause that on 26 June 2019, purporting to act on the
strength of the order, the police, and
the first and fourth
respondents’ security guards, acting at the instance of the first
respondent, caused the residential structures
or houses occupied by
the applicants erected on the property to be demolished. Few of the
applicants’ belongings were saved from
the onslaught.
[5]
Discontent with the demolition, the applicants resorted to the
instant proceedings seeking, in the main,
an order declaring the
demolition as also the order of 11 December 2018 unlawful. After the
delivery of the answering and replying
affidavits, the applicants
amended their notice of motion to seek an order rescinding and
setting aside the order of 11 December
2018, in terms of rule 42 (1)
(a) of the Uniform Rules of Court.
[6]
In effect, the order of 11 December 2018 confirmed a
rule nisi
that had been issued under Case No. 5802/2018 on 13 November 2018
which called upon the respondents therein to show cause,
inter
alia
, why they should not be interdicted and restrained from,
inter alia
, carrying on the construction of any building
activities on the property and directed the respondents to demolish
all illegal structures
erected on the property.
[7]
The applicants contend that they had not been cited in the
application that culminated in the grant of
the impugned order. They
also contend that the impugned order was never properly served on
them or preceded by any notice in terms
of section 4 (2) of the
Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19
of 1998.
[4]
[8]
The first respondent, the only litigant opposing the rescission
application,
[5]
seeks to justify
its actions as follows:
“
16.
On their own showing, the applicants were recent arrivals on the
property at the time the order was executed on 26 June 2019.
They
themselves do not furnish any details pertaining to their individual
times of arrival and the Municipality is unable to say
when they did
so arrive, on an individual basis.
17.
One
thing is certain, though, and that is the fact that the property is
the subject of a pending land claim which has been duly published
in
accordance with the provisions of section 11 of the Restitution Act
and to which, as set out above, section 11 (7) (d) of the
Restitution
Act applies.
[6]
18.
Once more on their own showing, the
applicants were never permitted by the Municipality to invade or
occupy the property. Indeed,
as the manager of the Municipality, I
must state here, most categorically, that they were never at any time
so permitted by the Municipality
to occupy the property, demarcate
sites and erect structures thereon. No one, including the fifth
respondent, had any authority to
approve any demarcation of sites on
the property at any material time and the applicants’ conduct in so
doing is clearly unlawful
. . .
20.
It bears emphasising that they have no
colour of right at all to any portion of the property.”
[9]
Rule 42 (1)(a) gives the court the power, in addition to any other
powers it may have, to, on its own,
or upon the application of any
party affected, rescind an order erroneously sought or erroneously
granted in the absence of any party
affected thereby.
[10]
An order is erroneously granted if there existed at the time of its
issue a fact of which the court was unaware,
which would have
precluded the granting of the order and which would have induced the
court, if aware of it, not to grant the order.
[7]
[11]
It is also trite law that an order is erroneously granted if there
was an irregularity in the proceedings or if it
was not legally
competent for the court to have made such order.
[8]
[12]
The following remarks by Conradie J in
Kayamandi
Town Committee v Mkhwaso and Others
[9]
are apt:
“
A
failure to identify defendants or respondents would seem to me to be
destructive of the notion that a Court’s order operates only
inter
partes
, not to mention questions
of
locus standi in iudicio
.  An order
against respondents not identified by name (or perhaps by
individualised description) in the process commencing action
or (in
very urgent cases, brought orally) on the record would have the
generalised effect typical of legislation.  It would
be a decree
not a court order at all . . .
The
applicant alleges that it is impossible to identify the persons
residing on the stands in question.  There are too many of
them
and they constantly come and go.  Accepting the correctness of
this allegation I can only say that the applicant has other
remedies.  The Prevention of Illegal Squatting Act 52 of 1951 .
. . , which was extensively amended in 1988, obliges a court
which
convicts any person of the offence of entering upon or into without
lawful reason or remaining on or in any land or building
without the
permission of the owner or lawful occupier of the land or building to
make an order for the summary ejectment of such
person from the land
or building concerned.  An owner of land may, without an order
of Court, demolish an unauthorised structure
on his land and remove
materials . . . This is in substance what the applicant asks this
court to do but which I hold the court cannot
do.”
[13]   Mr
Ntsaluba
, counsel for the first respondent, argued that the
applicants fell within the purview of the impugned order and had been
properly
cited in that, at the time the impugned order was granted,
they had already been occupying the property and that, therefore,
reference
to “
unknown persons demarcating sites and erecting
structures
” on the property must be interpreted to include the
applicants.
[14]
In
Mpaka
[10]
this court had occasion to consider whether an order against
specified respondents “
and
other unknown occupants
”
was competent.  The court held:
“
[13]
Over the years the courts have, alive to the challenges associated
with the sudden invasion of land by persons
or group of persons whose
details are lacking, adopted a more benevolent approach allowed the
citation of an ascertainable group,
even though theirs names might
not be known.
[11]
However benevolent the courts have been, orders have not been granted
against persons not occupying the land in question but
“intending
to unlawfully occupy” in due course because, said Budlender AJ,
such persons are “not in any real sense an ascertainable
group. . .
who are properly before court against whom an effective order can be
made; there [was] no prospect that they [would] be
identified during
the course of the proceedings . . . [t]he identity will change from
day to day.  Some people, who today have
no intention to occupy
the land, may subsequently decide to do so.”
[14]
Addressing himself to challenges associated with serving persons
“
intending to unlawfully occupy
”
Budlender AJ went on to say:
‘
If
the Sheriff reads out the order today, it will be of no force or
effect in respect of any person who is not present when he reads
out
the order, and who intends to occupy the land tomorrow or
thereafter.  It will be effective only in respect of any person
who at the moment of announcement happens to be in the process of
occupying the land, or visiting it.  It will not give any
notice
of the order to any other people intending to occupy the land, and
will be entirely ineffective as far as they are concerned
. . .’
[15]
In light of the aforegoing, it could never have been, and never was,
the intention of the court when
granting the order it did on 17
November 2011 to make the order applicable to other surrogates and
unauthorised invaders of the land
in question in 2015.”
[15]   The
instant case is distinguishable from
Kayamandi
and
Mpaka
.
“
Unknown persons demarcating sites and erecting structures
[on]
Erf 87 Ntabankulu
” is, in my view, an ascertainable
group.  In
Mpaka
the unspecified respondents were cited
as “
other unknown occupants
.”  This citation was less
than precise and was no different from the wide and sweeping
reference in
Kayamandi,
to “
persons intending to
unlawfully occupy Erf 18332, Khayelitsha, in the City of Cape Town,
Western Cape,
” which was found to have been inadequate.
[16]   As
at the time the impugned order was obtained, the applicants had,
indeed, occupied the property and were, on their
showing,
constructing structures thereon.  In my view, the citation met
the threshold.  This is, however, not the end of
the matter.
[17]   The
provisions of PIE are, to the extent that the first respondent adopts
the stance that the applicants are unlawful
occupiers of the
property, of relevance. Section 4(1) of PIE provides that
notwithstanding anything to the contrary contained in
any law or the
common law, the provisions of the section apply to proceedings by an
owner or person in charge of land for the eviction
of an unlawful
occupier.
[18]
In
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
[12]
it was held that section 4(1) of PIE makes it clear that the
provisions of the sub-sections that follow are peremptory; section
4(2)
requires notice of such proceedings to be effected on the
unlawful occupier and the Municipality having jurisdiction at least
14
days before the hearing of those proceedings. The sub-section
further provides that the notice must be effective notice; it has to
embody information set out in sub-section (5) and must be served as
directed by the court to ensure notice on the part of unlawful
occupiers.
[19]
In these proceedings, it is not in dispute that the impugned order
was not preceded by an invocation of the relevant
provisions of PIE.
That is a fact of which the court that granted the impugned order was
not aware. Had this fact been brought to
the attention of the court
or enquired into by the court itself, the court would not have
granted the order it did. An order obtained
without such invocation
is incompetent and falls to be set aside.
[13]
[20]
In
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and others,
[14]
the Constitutional Court said the following of and concerning orders
obtained for the eviction of unlawful occupiers without the
invocation of the provisions of PIE:
“
[39]
It is necessary to examine the duties of a court when dealing with
proceedings for eviction from residences generally. . .
The
duties arise from the protection of the rights of the residents . .
.
[40]
The starting point is section 26(3) of the Constitution which
provides that “[n]o
one may be evicted
from their home, or have their home demolished, without an order of
court made after considering all the relevant
circumstances
”.
Accordingly, courts seized with eviction matters are enjoined by the
Constitution to consider all relevant circumstances.
[41]
The prohibition in section 26(3) is given effect to through the
enactment of PIE.  This Act goes further and enjoins the
courts
to order an eviction only “if it is of the opinion that it is just
and equitable to do so, after considering all the relevant
circumstances” as contemplated in section 4(6) and (7)
[15]
and section 6(1). . .
[47]
It deserves to be emphasised that the duty that rests on the court
under section 26(3) of the Constitution and section 4
of PIE
goes beyond the consideration of the lawfulness of the occupation.
It is a consideration of justice and equity in which
the court is
required and expected to take an active role.  In order to
perform its duty properly the court needs to have all
the necessary
information.  The obligation to provide the relevant information
is first and foremost on the parties to the proceedings.
As
officers of the court, attorneys and advocates must furnish the court
with all relevant information that is in their possession
in order
for the court to properly interrogate the justice and equity of
ordering an eviction. . .”
[21]   The
applicants were not before court on the date the impugned order was
granted. For purposes of rule 42 (1)(a),
they were absent. Because
the information contemplated in sections 4 and 6 of the PIE was not
placed before the court on that day,
the court was unaware of
essential issues of fact when granting the order it did. The order
evicting the applicants was thus erroneously
granted within the
meaning and contemplation of rule 42 (1)(a). This conclusion renders
the further reasons advanced for the setting
aside of the impugned
order unnecessary to consider.
[22]   The
order of 27 November 2017 incorporating the
rule nisi
was
subsumed by that of 11 December 2018 confirming the
rule nisi
.
Therefore, nothing more need be said about the November order.
[23]   The
applicants have been victorious. There is no reason why costs should
not follow the result. The application for
the delivery of an
additional affidavit to supplement the allegations made in the
applicants’ founding affidavit was not pursued.
Indeed, the
applicants made out a case for rescission on the papers initially
filed. The costs occasioned by the filling of the additional
set of
papers ought to be disallowed.
[23]   I,
therefore, make the following order:
1.
The order granted by this court
under Case No. 5802/2018 on 11 December 2018 is hereby rescinded.
2.
Any warrant issued pursuant to the
order is of no force or effect.
3.
The first respondent shall pay costs
of this application, such costs to exclude those consequent upon the
delivery of the “notice
of motion- interlocutory” dated 3 August
2020 and the supplementary affidavit annexed thereto attested on 3
August 2020.
_______________________
S M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Applicants’
counsel
:
L L Ngumle
Applicants’
attorneys
Linyana & Somacala Incorporated
C/o
Manitshana Tshozi Attorneys
Mthatha
First respondent’s
counsel
:
T M Ntsaluba SC
First respondent’s
attorneys
:
N T Vuba Incorporated
C/o
Mkata Law Officers
Mthatha
Date
matter heard
:           29
April 2021
Date
judgment delivered
:
20 May 2021.
[1]
The
property
[2]
Even
though there are eighty-four applicants the number of members of
each household range between two and five, with the result
that the
total number of the affected persons approximated two hundred.
[3]
It
is alleged that approximately 60% of the applicants had l
i
ved
in the property for more than 8 months; 29% for more than 6 months,
and 11% for almost 9 months.
[4]
PIE
[5]
The
other respondents are Makhosonke Diko, Mbangweni Tribal Community,
Phiko Security Services, Lwandlolubovu Traditional Council
and Chief
Ndzululwazi Sigcau cited as the second to sixth respondents,
respectively.
[6]
Section
11
(7) (d) of the
Restitution of Land Rights Act 22 of 1994
provides
that once a notice has been published in respect of land subject to
a claim in terms of that Act “
no
claimant or other person may enter upon and occupy the land without
the permission of the owner or lawful occupier
.”
[7]
Nyingwa
v Moolman
NO
1993 (2) SA 508
(Tk) at 510D- G
;
Naidoo v Matlala
NO
2012 (1) SA 143
(GNP) at 153C.
[8]
First
National Bank of South Africa Ltd v Jurgens
1993 (1) SA 245 (W).
[9]
Kayamandi
Town Committee v Mkhwaso and Others
1991 (2) SA 630
(C) at 634 G, 635I-636D F- I (
Kayamandi
).
Cf
Illegal Occupation Erven Phillipi v Monwood Investment Trust Company
(Pty) Ltd
[2002] 1 All SA 115
(C) (
Monwood
).
[10]
Mpaka
and Others v King Sabata Dalindyebo Local Municipality and Another
[2017] ZAECMHC 24 (11 July 2017) (
Mpaka
)
at paras 13-5.
[11]
See
for example
City
of Cape Town v Stacy Yawa and Others
[2004] 2 AllSA 281
(C) per Budlender AJ; also see
Monwood
above
n 9.
[12]
2001
(4) SA 1222
(SCA), para 11
[13]
Cape
Killarney
case, para 17.
[14]
[2017]
ZACC 18; 2017 (8) BCLR 1015 (CC); 2017 (5) SA 346 (CC)
[15]
These
sub-sections provide that:
“
(6)
If an unlawful occupier has occupied the land in
question for less 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 the rights and
needs of the elderly, children, disabled persons and households
headed by women.
(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.”