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[2020] ZALMPPHC 88
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Van Vuuren v Marakalala and Others (4356/2016) [2020] ZALMPPHC 88 (27 October 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 4356/2016
In
the matter between:
DANIEL
RUDOLPH VAN VUUREN
APPLICANT
and
JOHANNES
MARAKALALA
FIRST
RESPONDENT
MAMMA
MARAKALALA
SECOND RESPONDENT
ISAAC
TOUWATSWALA
THREE RESPONDENT
MATOME
MATAKANA
FOURTH
RESPONDENT
SHIBU
MATAKANE
FIFTH RESPONDENT
ALL
OTHER UNLAWFUL OCCUPIERS PORTION 25
(A
PORTION OF PORTION 11) OF THE FARM
ZWARTWATER
NR. 123
SIXTH RESPONDENT
BLOUBERG
MUNICIPALITY
SEVENTH RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
is an application in terms of section 4(7) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998
("the PIE Act") for an order of eviction of the 1
st
,
2
nd
,
3
rd
,
4
th
,
5
th
and 6
th
Respondents ("the Respondents") from Portion 25 of the Farm
Zwartwater on the basis that the property in question belongs
to the
Applicant and that the Respondents have no right in law to occupy the
property.
[2]
On
the 19 October 2020 I granted an order in favour of the Applicant and
in the following terms:
1.
The
1
st
,
2
nd
,
3
rd
,
4
th
,
5
th
and 6
th
Respondents and anybody occupying the Property known as PORTION 25 (A
PORTION OF PORTION 11) OF THE FARM ZWARTWATER N.R. 123, REGISTRATION
DIVISION M.R, LIMPOPO PROVINCE, 10,3378 HECTARES BIG ("the
property") through or under them are evicted from the property;
2.
Should
the 1
st
,
2
nd
,
3
rd
,
4
th
,
5
th
and 6
th
Respondents and anybody occupying the property through or under them
fail or refuse to vacate the property within 30 (THIRTY) days
from
date of service of this order, that the Sheriff is authorised to
evict the 1st, 2
nd
, 3
rd
, 4
th
,
5
th
and 6
th
Respondents or anybody occupying the property through or under them
from the property, with the assistance of the South African
Police
Service, should it be necessary;
3.
The
1
st
,
2
nd
,
3
rd
,
4
th
,
5
th
and 6
th
Respondents are ordered to pay the costs of this application jointly
and severally, the one paying the others to be absolved, including
the cost of the application under PART A of the Notice of Motion.
4.
The
7
th
Respondent is ordered to provide the 1
st
to 6
th
Respondents with an alternative accommodation.
[3]
What follows are the reasons for the
above order I granted on 19 October 2020.
[4]
It
is common cause that the Applicant is the lawful and registered owner
of the property known as Portion 25 (A Portion of Portion
11)
of the Farm Zwartwater NR 123, Registration Division M.R Limpopo
Province, district Potgietersrus ("the immovable property").
The Applicant acquired ownership of the immovable property through
purchase and sale from Siyaghopa Trading 71 CC on 18 May 2015.
[5]
An
eviction order was granted on unopposed basis on 25 April 2017.
Subsequent to the order being granted the Respondents brought
a
rescission application which was granted and the eviction order was
set aside. The Respondents filed the necessary answering
affidavit
and after the Applicant had filed his replying affidavit the matter
proceeded on opposed basis.
[6]
The
crux of the Respondents' opposition is that they are all residing on
Portion 5 of the Farm Zwartwater, and that none of them
is residing
on Portion 25 of the Farm Zwartwater. In addition the Respondents
content that Portion 5 belongs to the State, and
not to the
Applicant, and therefore the Applicant cannot evict anybody from
Portion 5. Attached as Annexure "B" to the
Opposing
Affidavit is a Windeed search proving ownership of Portion 5. The
Respondents rely on this document to show that the Applicant
is not
the owner of Portion 5.
[7]
The
Applicant does not dispute ownership of Portion 5. It is common cause
that Portion 5 belongs to the State. The Applicant contents
that this
is irrelevant for the purpose of this eviction application. This
application deals with unlawful occupiers on Portion
25 and not
Portion 5. The Applicant has attached as Annexure "B" to
the Founding Affidavit a Windeed search proving his
ownership of
Portion 25.
[8]
The
Respondents go further to state that they were given permission to
occupy Portion 5 by the erstwhile caretaker of the Portion
5, the
late Piet who was in charge of Portion 5 in favour of the Government
before his death in 2014. This statement by the Respondents
does not
take this matter any further for the fact that the Applicant sought
an order to evict them from his Portion 25 and not
Portion 5. It is
common cause that Portion 5 belongs to the state, namely the Limpopo
Provincial Government. The Respondents allege
that some of them have
been residing on the property, which on their version is Portion 5,
for more than 15 years while others
more than 2 years.
[9]
It
is clear from the Respondents' version that they cannot clearly
distinguish between Portion 5 and Portion 25. Attached as Annexure
"REPS" to the Replying Affidavit is a report from the
Surveyor - General. The Surveyor - General did an
inspection
in loco
and surveyed the Farm
Zwartwater. The Report clearly states that Portion 5 was subdivided
during 1973 to create Portion 11 and Portion
11 was further
subdivided in 2014 to create Portion 25 (the immovable property of
the Applicant). The report clearly indicates
that the boundary of
Portion 25 does not encroach on the remainder of Portion 5 which
belongs to the State. In fact the two Portions
(5 and 25) are not
even immediate neighbours.
[10] It is
clear from the Surveyor-General’s report that the
Surveyor-General conducted an
inspection
in loco
at the
farm in the presence of the Respondents. The Respondents do not
dispute the contents of the report. From the report it is
abundantly
clear that the Respondents are occupying Portion 25 but they wrongly
refer it as Portion 5. They seem not to be aware
of the subdivisions
that took place during the years 1973 and 2014 which gave rise to the
existence of Portion 25. The remaining
Portion 5 is still in
existence and belongs to the State.
[11]
In
the light of the undisputed evidence before me, I make a finding that
the Respondents are in fact in occupation of Portion 25,
the property
of the Applicant. They are under a wrong impression that where they
are residing is Portion 5 whereas in actual fact
they are residing on
Portion 25 which belongs to the Applicant. Consequently, they are in
unlawful occupation of the Applicant's
immovable property and the
Applicant is entitled to an eviction order.
[12]
The Respondents , in the opposing
affidavit state that "
There is
not land owner or organ of state who can reasonably make another land
available for the Respondents"
I
agree with Counsel for the Applicant's submission that this argument
is in direct contrast to the allegation that they reside
on Portion
5, and that Portion 5 belongs to the State. On their own version the
Respondents are residing on land which belongs
to the Limpopo
Provincial Government. So it is clear that there is in fact land
available to the Respondents which belongs to the
State. The report
of the Surveyor-General is an independent proof that the Respondents
are occupying Portion 25. The remainder
of Portion 5 (which belong to
the State) is therefore available as an alternative land for the
Respondents.
[13]
The Respondents' attorney of record from
the stage of rescission of the default judgment up to the setting
down of this matter for
hearing as an opposed application, withdrew
as attorneys of record on 23 August 2019. This application was set
down for hearing
on the 19
th
to 21
st
October 2020. The matter was set down for hearing for three days on
the understanding that the parties would give oral evidence
at the
hearing. A Notice of Set Down for the hearing on 19
th
to 21
st
October 2020 was duly served personally on each of the Respondents on
11 August 2020. All the Respondents failed to attend Court
for the
hearing on 19 October 2020.
[14]
Having heard the submissions made by
counsel for the Applicant and considered the Respondents answering
affidavit together with
the heads of argument filed by the
Respondents' attorneys of record before their withdrawal, I granted
the order as prayed by the
Applicant.
[15]
It is trite that at common law an
Applicant who can show that he is the owner of an immovable property
and that the Respondent is
in occupation of his property is, as a
matter of principle, entitled to an order of eviction unless the
Respondent can show that
his occupation is somehow lawful.
See
Graham v Ridley
1931 TPD 476
at 479
The
aforementioned common law position remains unchanged subject to
compliance with the procedural requirements prescribed in the
PIE
Act.
In
the present matter, it is common cause that the Applicant has
complied with section 4 of the PIE Act in that on 25 October 2016
he
obtained an order of Court authorizing service of the section 4(2)
notice on the Respondents.
[16]
The Respondents in this matter have been
in unlawful occupation of the immovable property for a period of more
than six months.
In that regard, the provisions of
section 4 (7) of the PIE Act apply to the present proceedings.
Section 4(7) of the PIE Act
provides that
"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
equitable to do so, after considering all relevant
circumstance
including, expect where the land is sold in
a
pursuant to
a
mortgage, whether
land is available by the municipality or other organ of state or
another land owner for relocation of the unlawful
occupier, and
including the rights and needs of the elderly, children, disabled
persons and households headed by women".
[17]
In the decision of the Constitutional
Court in
Occupiers of Erven 87 and 88
Berea v De Wet NO and Another
2017 (8) BCLR 1015
(CC);
2017 (5) SA 346
(CC)
Mojapelo AJ had occasion to lay
down the applicable test that must be considered by the Court in
eviction proceedings. The learned
Justice of The Constitutional Court
enunciated the test as follows:
"The
Court will grant an eviction order only where
(a)
it has all the information about
the occupiers to enable it to decide whether the eviction is just and
equitable; and
(b)
the Court is satisfied that the
eviction is just equitable having regard to the information in (a).
The two requirements are inextricable,
interlinked and essential. An
eviction order granted in the absence of either one of these two
requirements will be arbitrary.
I reiterate that the enquiry
has nothing to do with the unlawfulness of occupation.
It
assumes and is only due when the occupation is unlawful."
[18]
In the present matter, the personal
circumstance of the Respondents (the occupiers) were canvassed in
their answering affidavit
and the independent report of the
Surveyor-General. I have taken those circumstance into consideration
in arriving at my decision
in this matter.
[19]
In exercising the discretion on the date
on which the Respondents should vacate the immovable property in
terms of section 4(8)
of the PIE Act, I take into account the fact
that the Respondents have no valid
causa
for their continued occupation.
However, I also heed the
injunction in the
Berea
matter (Supra) that unlawfulness is
not per sea determining factor. Accordingly, it is also significant
that in the present matter
the Respondents have been aware of the
eviction proceedings for over a period of four years (when the
Applicant instituted the
present proceeding). What is more, there is
undisputed evidence that Portion 5 of the immovable property in
question is owned by
the Limpopo Provincial Government.
Therefore,
the Municipality (7th Respondent) can provide the Respondents with an
alternative accommodation or place of residence.
[20]
Section 26(3) of the Constitution
provides that:
"No one may be evicted
from their home, or have their home demolished, without an order of
Court made after considering all
the relevant circumstance. No
legislation may permit arbitrary evictions
"
The
duty that rests on the Court under section 26(3) of the Constitution
and section 4 of PIE Act goes beyond the consideration
of the
lawfulness of the occupation. It is a consideration of justice and
equity in which the Court is required to and expected
to take an
active role. The application of the PIE Act is not discriminatory -
Machele and Others v Mailula and Others
2010 (2) SA 257
(CC).
[21]
In
FHP
Management (Pty) Ltd v Theron NO and Another
2004 (3) SA 392
(C) at
393C-E
Van Heerden J stated:
"In terms of s 4(7) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE) read with
s 26(3) of the Constitution of the
Republic of South Africa Act 108 of 1996, it is not necessary for an
Applicant, in proceedings
to evict an unlawful occupier from such
Applicant's property, to place more before the Court by way of
evidence than that such
Applicant is the owner of the property in
question and that the Respondent is in unlawful occupation thereof It
is then up to the
occupier to disclose to the Court "to show why
the owner should not be granted an order for the eviction of the
occupier.
Unless the occupier opposes and discloses circumstances
relevant to the eviction order, the owner, in principle, will be
entitled
to an order for eviction……
"
In
casu the Respondents as the occupiers, did disclose in the answering
affidavit circumstances for consideration by this Court.
Save for the
fact that there are women and children amongst the occupiers, there
is no evidence that there are the elderly and
the disabled persons in
occupation of Portion 25.
The
distance between Portion 25 and Portion 5 is less than 2 Kilometers.
Relocation from Portion 25 will not be difficult or burdensome
for
the occupiers, that is the Respondents in the present application.
[22]
The interests of the landowner and the
unlawful occupier should be balanced and taken into consideration. In
PE Municipality v Peoples Dialogue on
Land & Shelter
2000 (2) SA 1074
(SECLD) at 1081 F-G,
Horn
AJ (as he then was) said:
"The use of the term just
and equitable relates to both interests , that is what is just and
equitable not only to the persons
who had occupied the land
illegally, but to the landowner as well. The term also implies that
a
Court, when
having to decide
a
matter of this
nature, would be obliged to break away from
a
purely legalistic
approach and have regard to extraneous factors such as morality,
fairness, social values and implications and
any other circumstances
which would necessitate bringing out an equitably principled judgment
.
[23] The
balance that has to be struck is one between the proprietary rights
of the owner and the basic
human rights of the occupier. The PIE Act
creates a legal mechanism whereby the human rights of unlawful
occupiers are afforded
some protection in the context of the exercise
by property owners of their proprietary rights. See
ABSA Bank v
Murray and Another
2004 (2) SA 15
(C) at 24 F - H.
[24] The
application of the PIE Act in eviction matters is not discretionary
but rather mandatory, with
the Courts expected to consider whether it
is just and equitable in the circumstance to order an eviction. The
Constitutional Court
in its decision in
Occupiers of Erven 87 &
88 Berea v De Wet NO and Another (Supra)
reaffirmed that judicial
officers have to play an active role in adjudicating eviction matters
[25
A judicial officer in eviction proceedings is not a passive arbiter
existing only to rubber-stamp
the application for the eviction order.
Rather the judicial officer must apply his or her independent
judicial mind to the proceedings
and take a proactive role to
establish the relevant facts, protect human rights of those being
evicted - especially if they are
to be rendered homeless - and apply
the delicate balance between oft-competing housing and property
rights during such eviction
proceedings.
[26]
I am of the view that all factors
determining the granting of an eviction order have been taken into
consideration in the present
matter. Those factors are crucial
consideration which this Court applied in determining whether it is
just and equitable in the
circumstances to grant an eviction order.
[27]
The fact of the matter is that the
respondents have no defence, and there exists no legal basis for
their occupation of Portion
25. The Respondents are therefore in
illegal occupation and stand to be evicted.
The Applicant has made out a
proper case for the eviction of the Respondents from the Applicant's
property.
There is an alternative state land
(Portion 5) to be allocated to the Respondent by the Blouberg
Municipality.
[28]
It is for all the above reasons that I
granted an eviction order in favour of the Applicant on 19 October
2020.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 19 October 2020
Order
granted on
: 19 October 2020
Judgment
delivered on
: 27 October 2020
For
the Applicant
: Adv. J F Winnertz
Instructed
by
: Borman Snyman & Barnard Attorneys
c/o Niland & Pretorius
Attorneys
For
the Respondent
: In Default