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[2020] ZALMPPHC 10
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Muchanyise v Magistrate, Groblersdal and Others (2882/2019) [2020] ZALMPPHC 10 (23 January 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE NO: 5059/16
21/1/2020
In
the matter between:
AMOS
MUCHANYISE
APPLICANT
And
MAGISTRATE,
GROBLERSDAL
FIRST RESPONDENT
NON
PARIEL ONTWIKKELING CC
SECOND RESPONDENT
ELIAS
MOTSOALEDI LOCAL MUNICIPALITY
THIRD RESPONDENT
JUDGMENT
MPHAHLELE AJ
[1]
On
18 February 2016 the Second Respondent applied for an eviction order
against the Applicant from Farm Roodewald 193, the Remainder
of
Portion 27, Groblersdal ("the property") in the district
court of Groblersdal.
[2]
The
order was granted on 17 August 2016 in the absence of the Applicant's
legal representative but after having regard to the opposing
affidavit of the Applicant.
[3]
The
Applicant was given until 31 October 2016 to vacate the property.
Background
facts
[4]
The Applicant's case is that he had
resided on the property with his mother and father since 1986 when
his parents started working
on the property.
[5]
He contends that he had tacit consent to
occupy the property as the Second Respondent knew for 19 years that
he was living there
with his family and never informed him that he
doesn't have authority to reside on the property.
[6]
The Second Respondent's case is that the
Applicant's parents were the only persons occupying the property and
they were the only
persons who had permission to do so, both from the
previous owner and from himself.
[7]
The Applicant's mother passed on 13 July
2008 and his father on 20 June 2014.
[8]
The Second Respondent states that after
the death of the Applicant's parents, the Applicant and his family
started living on his
property without his permission and that the
Applicant even started bringing his own farm animals onto the
property and that despite
his numerous requests to remove the farm
animals and to vacate the property the Applicant blatantly refused.
[9]
The
Second Respondent gave the Applicant notice to vacate the property
which is undated and annexed to the eviction application
as Annexure
"D".
[10] On 16
October 2015, the Applicant was served with a letter by the Sheriff,
from the Second Respondent's
attorneys, in terms of which the
Applicant was required to vacate the property within 14 days, and he
refused to comply with the
contents of the said letter.
[11]
Subsequently, the Second Respondent then proceeded with the eviction
application against the Applicant
in terms of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act No. 19 of
1998 ("PIE").
[12]
The Applicant opposed the eviction
application. His main opposition was based on the fact that he was
not an illegal occupier on
the property and that there was an
apparent dispute of facts on the papers before the First Respondent.
[13]
He also raised a point in limine of
non-compliance with the provisions of Section 9 (1)(2)(d)(i)(ii) and
(iii) of the Extension
of Security of Tenure Act No. 62 of 1997
("ESTA").
[14]
It is common cause that the Applicant is
working on a neighbouring farm and was refusing to vacate the
property. He has cut the
farm fence and the Second Respondent opened
criminal cases under case numbers 86/7/14 and 101/7/14 respectively
with the South
African Police Services.
[15]
The Applicant's contention is that after
the death of his father, Mr Grabler, a member of the Second
Respondent, without any discussion
with him, erected a fence
alongside his homestead to prevent his goats and cattle to grace on
the property. He then cut the said
fence so that his livestock can
grace.
[16]
The First respondent on 17 August 2016
granted an eviction order against the Applicant and it is the said
order which the Applicant
now seeks to review and set aside.
THE
DISPUTE BETWEEN THE PARTIES
[17]
The dispute between the parties which I
am required to determine, relates to whether the Extension of
Security of Tenure Act No.62
of 1997 ("ESTA") or Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act No. 19
of 1998 ("PIE")
is applicable.
[18]
Secondly, whether a dispute of fact
exists between the parties.
APPLICANT'S
CONTENTIONS
[19] The
Applicant contends that on the factual findings by the First
Respondent, on the definitions of"
consent", "occupier",
the preamble to PIE as compared to the preamble to ESTA , as well as
the respective provisions
of the two Acts, it is evident that the
First Respondent erred in applying the provisions of PlE instead of
ESTA.
[20]
That
the Second Respondent should have proceeded in terms of ESTA, and not
the provisions of PIE which was not applicable on the
facts as found
by the First Respondent.
[21]
Therefore, the decision of the First
Respondent to apply the provisions of PIE instead of ESTA, falls to
be reviewed, set aside
and replaced by the order dismissing the
Second Respondent's application with costs.
[22]
The application is opposed by the second
Respondent.
Is Extension of Security of Tenure
Act No.62 of 1997 ("ESTA") or Prevention of Illegal
Eviction from and Unlawful Occupation
of Land Act No. 19 of 1998
("PIE") applicable to the dispute between the parties?
[23]
An "occupier" is defined in
section 1 of ESTA as meaning:
"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-
(a)
…
(b)
a
person using or intending to use the
land in question mainly for industrial, mining, commercial or
commercial farming purposes,
but including
a
person who works the land himself or
herself and does not employ any person who is not
a
member of his or her family; and
(c)
a
person who has an income in excess of
the prescribed amount”.
[21]
It is evident from the definition of
"occupier"
that
a person cannot be an occupier as defined in ESTA if his or her
residence on someone else's land is not based on consent or
on
another right in law.
Termination
of right of residence.
[22]
Section 8 of ESTA provides:
"(1)
Subject to the provisions of this section, an occupier's right of
residence may be terminated
on any lawful ground, provided that such
termination
is
just and
equitable, having regard to all relevant factors and in particular
to-
(a)
the fairness of any agreement,
provision in an agreement, or provision of law on which the owner or
person in charge relies;
(b)
the conduct of the parties giving
rise to the termination;
(c)
the interests of the parties,
including the comparative hardship to the owner or person in charge,
the occupier concerned, and any
other occupier if the right of
residence is or
is
not
terminated;
(d)
the existence of
a
reasonable expectation of the renewal
of the agreement from which the right of residence arises, after the
effluxion of its time;
and
(e)
the fairness of the procedure
followed by the owner or person in charge, including whether or not
the occupier had or should have
been granted an effective opportunity
to make representations before the decision
was
made to terminate the right of
residence."
[23]
Section 8(4) and (5) of ESTA reads
as
follows:
"(4) The right of
residence of an occupier who has resided on the land in question or
any other land belonging to the owner
for 10 years and-
(a)
has reached the age of 60 years;
or
(b)
is an employee or former employee
of the owner or person in charge, and as
a
result of ill health, injury or
disability is unable to supply labour to the owner or person in
charge, may not be terminated unless
that occupier has committed
a
breach contemplated in section 1O (1
)(a), (b) or (c): Provided that for the purposes of this subsection,
the mere refusal or failure
to provide labour shall not constitute
such
a
breach.
(5)
On the death of an occupier contemplated in subsection (4), the right
of residence of an
occupier who was his or her spouse or dependant
may be terminated only on 12 calendar months' written notice to leave
the land,
unless such
a
spouse or
dependant has committed
a
breach
contemplated in section 10(1)."
[24]
The
Second Respondent's contention seems to be that for the Applicant to
be evicted in terms of ESTA, he must be an occupier in
terms of ESTA.
Since the Applicant is no longer an occupier in terms of ESTA, his
occupation is unlawful and as a result eviction
should be effected in
terms of PIE.
[25]
The
Second Respondent places reliance on the decision by Gildenhuys AJ in
Landbounavorsingraad v Klaasen
2005
(3) SA 410
(LLC), at 425 A - B,
when
the Court held that the concept 'occupier' in ESTA in two senses: the
first is a narrow one which encompasses only those persons
who are or
were parties to a consent agreement with the owner or the person in
charge of the land or those who have "another
right in law"
to reside thereon. The second is a wide one which encompasses those
who derive their rights to reside through
or under occupiers in the
narrow sense. The latter group falls outside the statutory definition
of 'occupier'.
[26]
The Court further held that a person
residing on land will not be an 'occupier' (as defined) unless there
is a legal nexus between
that person and the owner. There is no such
nexus between family members living with that person on the one hand,
and the owner
or person in charge of the land on the other.
[27]
This meaning of "occupier"
seems to ignore the fact that a person who has
"another
right in law'
to reside on land
which belongs to another person is also defined as an occupier.
[28]
In dealing with the question whether the
Applicant should be evicted in terms of the provisions of PIE or
ESTA, I need to determine
the nature of the property which is
occupied by the Applicant.
[29]
In terms of s 6(2)(d) of ESTA occupiers
have the right to family life. One of the implications of this
provision is that occupiers
have the right to have members of their
family stay with them, even on a permanent basis.
[30]
Section 8 (5) provides that on the death
of an occupier, the right of residence of an occupier who was his or
her spouse or dependant
may be terminated only on 12 calendar months'
written notice to leave the land, unless such a spouse or dependant
has committed
a breach contemplated in section 10 (1).
[31]
In
Dique
NO v Van der Merwe en Andere 2001(3) SA 1006 (T) at 1011E - D
the
court held that the first- and second respondents' derivative rights
of occupation came to an end on the deaths of Mr Ntoyakhe
and Mr
Groenewald respectively. In the case of the first respondent because
the person from whom she derived her right of occupation
had passed
away and in the case of the second respondent because the marriage
relationship from which her right of occupation flowed
had come to an
end upon the death of her husband. That the notices required by
subsection 8(5) of ESTA were duly given and that
the required 12
calendar months' written notices have expired have not been placed in
issue in those· proceedings.
[32]
In
Simonsig
Landoed (Edms) Bpk v Vers and Others
(Unreported
Judgement of Cape of Good Hope Provincial Division delivered on 09
May 2007), Van Reenen and Ndita JJ were faced with
the question
whether the nature of the rights of residence that flow from the
provisions of Section 8(5) of ESTA is such that they
fall within the
meaning of the concept "right" in the phrase "another
right in law to do so"?
[33]
The Court held at paragraph [25] that:
"[25] An
ineluctable consequence of the recognition by Section 8(5) of Esta of
the first- and second respondents'
continued rights of residence
pending the expiration of
a
written notice
period of 12 calender months is the existence of
a
correlative
obligation on the part of the appellant, admittedly of only
a
limited duration,
to respect the exercise of such rights, failing which, compliance
could be compelled by
a
court of
law. In the premises such rights
as
flow
from the provisions of Section 8(5) of Esta, in our view, constitute
a
legal
right in the narrow (See: Agrico Masjienerie (Edms) Bpk v Swiers
(supra) at pages 58
-
59)
alternatively, in a wider sense, in that the respondents' rights of
residence constitute at least
a
"legally
recognised interest" (per Coetzee J in Secretary for Inland
Revenue v Kirsch (supra)).
[26]
It follows that we incline to the
view that the first- and second respondents' rights of residence
during the period following upon
the deaths of Mr Ntoyakhe and Mr
Rossouw
until
the expiry of the notice period of 12 calender months, constituted
occupation in terms of "another right in law to do
so"
within the meaning thereof in the
definition of occupier in Esta. The fact that the first- and second
respondents had theretofore
occupied their respective cottages
as
the conjugal partner and wife
respectively of employees of the appellant and not
as
occupiers in their own right does
not, in our view, stand in the way of
a
finding that they subsequently did
so
in their own right
as
they then exercised their rights of
residence in
a
totally
different capacity.
[27]
That the first- and second
respondents' occupation of their respective cottages became unlawful
the moment the notice period of
12 calender months expired
is
beyond doubt (See:
Mkangeli
and Others v Joubert and Others
2002 (4) SA 36
(SCA) at 43 I; Land-
en Landbou Ontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA
506
(SCA) at 514 F
-
G).
Whether they then became
unlawful occupiers
as
defined
in Section 1 of Pie is
a
different
matter. An unlawful occupier is in Pie defined
as
meaning
"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 Act. 1997
and excluding
...
" (the further exclusion is not
relevant for the purposes of this judgment and the underlining has
been provided). If the concept
"occupier" in the underlined
phrase were to be construed as referring to
a
person still qualifying as an
occupier under Esta its effect would be to render the first exclusion
meaningless or otiose as
a
person
can be an occupier for the purposes of Esta only if he or she resides
on land belonging to another pursuant to consent or
another right in
law to do so and accordingly, would automatically be excluded from
such definition which requires an absence of
such consent or right.
It is
a
cardinal
rule of construction of statutory enactments that the plain meaning
of words used therein must be adopted unless it leads
to
some
absurdity, inconsistency, hardship or
anomaly (See:
Bhyat v
Commissioner for Immigration
1932 AD 125
at 129;
also
see:
Caroluskraal Farms (Edms)
Bpk v Eerste Nasionale Bank van Suider-Afrika Bpk
[1994] ZASCA 23
;
1994 (3) SA 407
(A)
at 422 A
-
C).
Schutz JA in
Poswa
v Member of the Executive Council for Economic Affairs, Environment
and Tourism, Eastern Cape
2001 (3) SA 582
(SCA) at 587 E
-
F
said
that the effect of the formulation of the above principle by
Stratford JA in Bhyat's case is that:
"...
the court does not
impose its notion of what
is
absurd on the legislature's
judgment
as
to what
is
fitting, but
uses
absurdity
as a
means of divining what the legislature could not have
intended and therefore did not intend, thus arriving at what it did
actually
intend."
As,
in our view, it
is
inconceivable that the legislature could have intended the
absurdity that the first exclusion in the definition of unlawful
occupier
would be purposeless, we incline to the view that the true
intention of the legislature in using the concept "occupier"
therein
was
to refer to any person who had earlier, but no
longer, enjoyed the status of an occupier in terms of Esta. That
conclusion
is
not only consonant with the provisions of
Section 9(1) of Esta which provides that an occupier "notwithstanding
the provisions
of any other law
.. .
may be evicted only in
terms of an order of court issued under this Act" but
also
the following view expressed by Olivier JA in
a
minority
judgment in
Bekker and Another v Jika: Ndlovu v Ngcobo
2003
(1) SA 113
(SCA) at 146 B-D:
"In my view, the exclusion
in PIE of the application of ESTA
is
a
strong
indication in favour of the more limited ambit of PIE. It
is
clear that the
Legislature wished to avoid any overlap between the two statutes But,
be that
as
it
may, the net result
is
that PIE excludes
a
person
who
has
or
at
a
certain
time had consent or another right to occupy the land of another. PIE
does not apply to them.
"
It is also consonant with the
presumption, espoused by
Gutsche
J in Rex v Gwantshu
1931 EDL 29
and
Gildenhuys AJ in the unreported case of
Kusa
CC v Mbele (LCC 39/2002)
to
the effect that
a
subsequent
general enactment is not intended to interfere with an earlier
special provision unless such an intention is clearly
manifested.
[28]
In view of the aforegoing we have
come to the conclusion that after expiration of the notices in terms
of Section 8(5) of Esta,
the status of the first- and second
respondents
was
not
that of unlawful occupiers in terms of the definition thereof in Pie
and that the magistrate
was
correct
in having come to the conclusion that the provisions of Esta found
application and not those of Pie."
[37]
Section
2 of ESTA provides that the 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 - (a) any land
within such a
township which has been designated for agricultural purposes in terms
of any law; and (b) any land within such a
township which has been
established, approved, proclaimed or otherwise recognised after 4
February 1997, in respect only of a person
who was an occupier
immediately prior to such establishment, approval, proclamation or
recognition.
[38]
The
object of the ESTA is to protect a class of tenants ('occupiers') on
rural or semi-rural land who have acquired their tenancy
with the
consent of the landowner against eviction or through any other right
in terms of the Act.
[39]
PIE
applies to all land throughout the Republic of South Africa, unless
the Extension of Security of Tenure Act 62 of 1997 (ESTA)
applies.
[40]
In
my view the First Respondent should have applied ESTA and not PIE. As
a result, the First Respondent misconceived the whole nature
of the
enquiry in arriving at applying PIE instead of ESTA.
[41]
There
is no rational connection between the decision and the information
before the First Respondent and the reasons for the decision.
[42]
He
misconstrued the legal provisions and principles relating to the
matter before him in arriving at the decision or conclusion
and as a
result, there is no rational connection between the decision and the
information which was before the First Respondent
and the reasons for
it.
[43]
The
distorting effect of this misdirection of the First Respondent
renders the judgement for the eviction of the Applicant unreasonable
and irrational.
[44]
As
a result, the decision stands to be reviewed and set aside. Having
arrived at the aforesaid conclusion, there is no need for
me to deal
with the alleged dispute of fact.
[45]
I accordingly make the following order:
1.
The
eviction order granted by the First respondent on 17 August 2016 is
reviewed and set aside.
2.
The Second Respondent is ordered to pay
costs on party and party scale.
M S MPHAHLELE
ACTING JUDGE OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
I
agree
EM
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 18 October 2019
Judgment
delivered on
: 23 January 2020
For
the Applicant
: Adv.MS Manganye
Instructed by
: Malesela Moloto Attorneys
For
the Second Respondent : Adv. L Pretorius
Instructed
by
: Harvey Nortje Wagner & Motimele Inc
c/o Du Toit Swanepoel Steyn &
Spruyt Attorneys