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[2017] ZASCA 89
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Goosen and Others v Mont Chevaux Trust (148/2015) [2017] ZASCA 89 (6 June 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 148/2015
In the
matter between:
TINA
GOOSEN
FIRST APPELLANT
PIET
GOOSEN
SECOND APPELLANT
BAREND
TIETIES
THIRD APPELLANT
DIRK
TITUS
FOURTH APPELLANT
KATRINA
(KATHY) PIETERSEN
FIFTH APPELLANT
RYNO
PIETERSEN
SIXTH APPELLANT
ADRIAAN
AGULHAS
SEVENTH APPELLANT
AGNES
VAN DER
WESTHUIZEN
EIGHTH APPELLANT
DAANTJIE
VAN DER WESTHUIZEN
NINTH APPELLANT
ELSA
VAN DER
WESTHUIZEN
TENTH APPELLANT
JACOBUS
JULIES
ELEVENTH APPELLANT
JOHANNA
VAN DER WESTHUIZEN
TWELFTH APPELLANT
ABRAHAM
(APIE) SPANNENBERG
THIRTEENTH
APPELLANT
JANA
SPANNENBERG
FOURTEENTH APPELLANT
ADRIAAN
VAN DER WESTHUIZEN
FIFTEENTH APPELLANT
JANA
VAN DER WESTHUIZEN
SIXTEENTH APPELLANT
DAVID
VAN DER WESTHUIZEN
SEVENTEENTH APPELLANT
THE
DRAKENSTEIN MUNICIPALITY
EIGHTEENTH APPELLANT
THE
MINISTER OF LAND AFFAIRS
NINETEENTH APPELLANT
and
THE
MONT CHEVAUX TRUST (IT
2012/28)
RESPONDENT
Neutral
citation:
Goosen
v The Mont Chevaux Trust
(148/2015)
[2017]
ZASCA 89
(6 June 2017)
Coram:
Shongwe ADP,
Ponnan, Petse, Mbha and Van der Merwe JJA
Heard:
8 May 2017
Delivered:
6 June 2017
Summary:
Land: eviction
under
Extension of Security of Tenure Act 62 of 1997
: appeal against
an order of the Land Claims Court confirming the eviction order of a
magistrate’s court on automatic review
to it: nature of
automatic review by the Land Claims Court: test on appeal: eviction
order correctly confirmed by the Land Claims
Court: constitutional
obligation on municipality to provide emergency housing upon
eviction: execution of the eviction order
postponed and municipality
ordered to provide emergency accommodation prior to execution of the
order.
ORDER
On
appeal from:
Land Claims Court
of South Africa, Randburg (Bertelsmann
J sitting
as court of review):
1 The
appeal succeeds only to the extent indicated below.
2 The
order of the Land Claims Court is altered to provide that the
eviction order of the magistrate’s court of Wellington
is
confirmed in respect of the first to sixteenth appellants.
3 The
execution of the eviction order is suspended for a period of 90 days
from the date of this order.
4 The
Drakenstein Municipality (the eighteenth respondent in the court
below) is ordered to provide the first to sixteenth appellants
with
temporary emergency accommodation within 75 days of the date of this
order.
JUDGMENT
Van
der Merwe JA (Shongwe ADP, Ponnan, Petse and Mbha JJA concurring):
[1]
The facts of this case provide a stark illustration of the impact
that the lack of adequate housing for all citizens has on
South
African communities. As I will show, the dreams of a well-meaning
family in respect of a piece of farmland in the Boland,
were
shattered by the presence of a group of people on the farm that are
living in appalling conditions but maintain that they
have nowhere
else to go.
[2]
The respondent in the appeal, the trustees of The Mont Chevaux Trust
(the trust), is the registered owner of the property known
as the
remaining extent of farm nr 208, Wellington, Division Paarl, Western
Cape Province, commonly known as Silver Oaks farm (the
farm). The
farm was transferred to the trust on 13 July 2012. The farm is
28,0828 hectares in extent and is situated within the
municipal area
of the Drakenstein Municipality (the municipality). The trust was
established for the benefit of the Austin family,
that is Mr and Mrs
Austin and their nine year old daughter, all of whom reside on the
farm. As I have indicated, the first to seventeenth
appellants also
reside on the farm.
[3]
On 28 February 2013, however, the trust launched an application in
the magistrate’s court of Wellington for an order evicting
the
appellants from the farm. The trust also cited the municipality and
the Minister of Land Affairs, as the eighteenth and nineteenth
respondent respectively. The application was governed by the
provisions of the Extension of Security of Tenure Act 62 of 1997
(ESTA). The trust rightly accepted that the appellants were occupiers
in terms of the provisions of ESTA. It also accepted that
some of the
appellants might have become occupiers of the farm prior to 4
February 1997 and therefore dealt with the matter as
if s 10 of
ESTA applied to the appellants. The trust delivered comprehensive
affidavits and photographs in support of its
application.
[4]
The appellants opposed the application and were legally represented.
However, only the tenth appellant deposed to an answering
affidavit.
She stated that the other appellants had mandated her to oppose the
application, but they did not depose to confirmatory
affidavits. This
terse affidavit, however, contained little more than bare denials of
the detailed evidence adduced on behalf of
the trust and created no
real or bona fide factual disputes. In the result the evidence of the
trust was essentially undisputed.
[5]
On 31 March 2014, the magistrate’s court granted the
application and ordered the appellants to vacate the farm on or
before 31 May 2014. The eviction order was subject to automatic
review by the Land Claims Court (the LCC) in terms of s 19(3)
of
ESTA. In a judgment delivered on 22 May 2014, the LCC (Bertelsmann J)
confirmed the eviction order. Its order provided:
‘
The
proceedings in the court a quo and the eviction order are confirmed.’
[6]
The appellants approached the LCC for leave to appeal against its
order. The LCC refused leave but this court subsequently granted
leave to appeal to it. In
Snyders & others v De Jager
[2016] ZACC 55
;
2017 (5) BCLR 614
(CC), the Constitutional Court held
that, provided the necessary leave was granted, an appeal against the
confirmation of an eviction
order by the LCC on automatic review to
it, lies to this court. The trust filed a notice of intention to
abide by the judgment
of this court, citing financial constraints. In
the light of what I have said, the issue in this appeal is whether
the LCC was
correct in confirming the eviction order of the
magistrate’s court.
[7]
In order to answer this question, it is necessary to set out the
background of the matter in some detail. On 24 November 2008
the farm
was acquired by Corpclo 109 CC (Corpclo). At all times relevant
thereto, Ms Karen Macaskill was the sole member of Corpclo.
Corpclo
acquired the farm for use by Ms Macaskill and her family as a high
care thoroughbred stud facility. A number of people
resided in the
old cottages formerly occupied by labourers on the farm when Corpclo
took occupation thereof. None of these occupiers
were employed on the
farm. The Macaskills soon discovered that, for reasons virtually
identical to those that I will allude to
shortly, life on the farm
was intolerable and that it was impossible to operate the envisaged
facility.
[8]
As a result, on 4 November 2009, Corpclo instituted motion
proceedings in the magistrate’s court of Wellington for the
eviction of these occupiers. It cited 27 occupiers as respondents as
well as the municipality and the Minister of Land Affairs.
The
respondents in that application included the first to sixteenth
appellants. These proceedings followed a rather peculiar course.
For
present purposes it suffices to say that an order evicting the
occupiers was granted on an urgent basis in terms of s 15
of
ESTA, but not executed. When the eviction order came before the LCC
on automatic review, the matter was postponed for the filing
of
additional affidavits by Corpclo. The eviction order was neither
confirmed nor set aside. Thereafter Corpclo ran out of funds,
took no
further steps to prosecute the application and offered the farm for
sale.
[9]
The Austins dreamt of acquiring a farm of their own. They owned a
number of horses and their daughter showed an early interest
in
horses. They were therefore specifically interested in a farm that
was suitable for the keeping of horses. During their search
for a
suitable farm, they were introduced to the farm, which was developed
as a horse farm. The Austins intended to reside on the
farm and to
make a living by providing livery for other people’s horses and
by renting out a flat and a bungalow. They noticed
that there were
people living on the farm. They were assured that an agreement had
been reached between Corpclo, the occupiers
and the municipality in
terms of which the occupiers would be relocated. In terms of this
agreement, Corpclo would purchase wendy
houses and the municipality
would provide land where the wendy houses were to be erected. For
these reasons, the trust purchased
the farm.
[10]
The municipality, however, decided not to honour the agreement. It
attempted to justify this decision by stating interchangeably
that no
land was available for the relocation or that building plans had not
been submitted in respect of the wendy houses. The
Austins received
the news that the municipality had reneged from its undertaking when
the transfer of the farm to the trust was
about to be registered.
They had made all their funds available to acquire the farm through
the trust and could not cancel the
transaction without losing dearly.
They decided to take occupation of the farm and to attempt to resolve
the issue of the relocation
of the appellants amicably.
[11]
This attempt soon proved to be fruitless. The appellants were
uncooperative, to say the least. In addition, the Austins were
confronted with a myriad of serious problems arising from the
presence of the appellants on the farm. The appellants live almost
in
the middle of the farm, approximately a 100 metres from the main
house. As a result of fighting and violence amongst the appellants
and their visitors, the Austins are particularly over weekends
virtually kept prisoners in their own house. For purposes of
providing
a safe environment and the provision of livery to clients,
it is important that the farm be properly fenced. After informing the
appellants that they intended to do so, the Austins repaired the
perimeter fence of the farm. Within hours thereafter, the whole
fence
was damaged. The appellants and people from other farms come and go
and move across the farm as they please and damage the
fence should
it be in their way. As a result of repeated incidents of scaring of
the horses, it is too dangerous to continue horse-riding
on the farm.
There are no proper ablution facilities for all of the appellants. In
the result people relieve themselves in the
open. These acts are
witnessed regularly through the lounge window of the main house.
There is excessive littering, also of the
remains of slaughtered
animals. There is continuous stealing of electrical cables for
selling of copper and vineyards and trees
are continuously chopped
down for firewood.
[12]
As a result, the Austins have been unable to provide livery to any
client or to rent out the flat or bungalow. They have in
fact been
unable to invite anyone to their new home. They find themselves in an
intolerable and desperate situation.
[13]
Despite the fact that most of the appellants are employed on
neighbouring farms and in town, they live in terrible conditions.
Most of them gradually moved into dilapidated empty houses on the
farm. These structures are on the brink of collapse and are closed
up
with plastic bags, cardboard and corrugated iron sheets. The ablution
facilities available to the appellants are woefully inadequate.
These
structures are not fit for human habitation.
[14]
Section 9(1) of ESTA provides that notwithstanding the provisions of
any other law, an occupier may only be evicted in terms
of an order
of court issued under ESTA. Section 9(2) provides:
‘
A
court may make an order for the eviction of an occupier if─
(a)
the
occupier’s right of residence has been terminated in terms of
section 8;
(b)
the
occupier has not vacated the land within the period of notice given
by the owner or person in charge;
(c)
the
conditions for an order for eviction in terms of section 10 or 11
have been complied with; and
(d)
the owner or
person in charge has, after the termination of the right of
residence, given─
(i)
the occupier;
(ii)
the municipality in whose area of jurisdiction the land in question
is situated;
and
(iii)
the head of the relevant provincial office of the Department of Rural
Development and
Land Reform, for information purposes, not less than
two calendar months’ written notice of the intention to obtain
an order
for eviction, which notice shall contain the prescribed
particulars and set out the grounds on which the eviction is based:
Provided
that if a notice of application to a court has, after the
termination of the right of residence, been given to the occupier,
the
municipality and the head of the relevant provincial office of
the Department of Rural Development and Land Reform not less than
two
months before the date of the commencement of the hearing of the
application, this paragraph shall be deemed to have been complied
with.’
[15]
I emphasise that this appeal lies against the confirmation order of
the LCC made on automatic review. This raises the question
as to the
test to be applied by this court on appeal. In terms of s 19(3)
of ESTA, the LCC is empowered to:
‘
(a)
confirm such order in whole or in part;
(b)
set aside
such order in whole or in part;
(c)
substitute
such order in whole or in part; or
(d)
remit the
case to the magistrate’s court with directions to deal with any
matter in such manner as the Land Claims Court may
think fit.’
[16]
In
Snyders
(para 44) the Constitutional Court held that
s 19(3) of ESTA gives the LCC wide powers to assess the
appropriateness
or otherwise of an eviction order, not only in
respect of the procedure followed but also in respect of the merits
thereof. The
enquiry is similar, but not identical, to the oversight
of certain convictions and sentences provided for in the
Criminal
Procedure Act 51 of 1977
. In my view the
s 19(3)
enquiry is not
subject to the limitations of an appeal. In essence the LCC must
ensure that no occupier is evicted without compliance
with ESTA, that
is, that the eviction order is procedurally fair and substantially
just in the circumstances of the given case.
[17]
The appeal to this court, however, is subject to all the limitations
applicable to appeals. The appeal is, for instance, limited
to the
grounds that were raised in the notice of appeal, must be decided
only on the appeal record and this court must be convinced
that the
LCC was wrong, taking into account the nature of the automatic review
and the wide powers of the LCC.
[18]
It appears from the judgment of the LCC that the papers in the
application of Corpclo were before it and that it had regard
thereto.
Counsel for the appellants accepted that the papers in the previous
application formed part of the review record and that
this court is
entitled and enjoined to have regard thereto.
[19]
Counsel conceded, correctly in my view, that as the issue of the
absence of a report by a probation officer in terms of
s 9(3)
had not been raised in the application for leave to appeal or the
notice of appeal, it was impermissible to raise that issue before
us.
In any event, it appears from the record that despite repeated
requests for and undertakings by the probation officer who visited
the farm during September 2013 for purposes of compiling a report,
one was not submitted by the time that the judgment was delivered
in
the magistrate’s court on 31 March 2014. In terms of the
jurisprudence of the LCC, the magistrate’s court was entitled
to proceed with the application on the basis that the report was not
filed within a reasonable period of time. See
Theewaterskloof
Holdings (Edms) Bpk, Glaser Afdeling v Jacobs en andere
2002 (3)
SA 401
(LCC) para 13 and
Pannar Research Farms (Pty) Ltd &
another v Magome & another
2002 (5) SA 621
(LCC) para 17. I
now turn to the grounds of appeal raised in the notice of appeal.
[20]
It was submitted that the trust presented insufficient evidence to
show that the appellants’ rights of residence had
been
terminated in accordance with
s 8
of ESTA. The trust’s
founding affidavit stated that the attached affidavit of Ms Macaskill
showed that notice of the termination
of the appellants’ rights
of residence had been given when the South African Police Services
handed a letter to them on 24
February 2010. Counsel correctly
pointed out that the affidavit of Ms Macaskill made no reference
hereto. But the previous application
had been served on the first to
sixteenth appellants. That application made it clear that the rights
of residence of these appellants
had been terminated and set out the
conduct foundational to the termination. As I have said, this conduct
was substantially the
same as the conduct described above. Despite
the fact that that application was left in limbo, no reasonable
person could have
concluded that his or her right of residence had
been revived and the appellants did not rely on such revival.
[21]
It appears from the evidence that on 3 April 2009 Mr Leon Coetzee, a
labour consultant employed by Corpclo, handed a notice
to each of the
households on the farm. The first to sixteenth appellants resided on
the farm at the time. These notices, in Afrikaans,
conveyed that
consent to reside on the farm, if any, had thereby been terminated
and that the occupier had to vacate the house
on the farm on or
before 30 April 2009. Although these notices referred to
s 4
of
the
Prevention of Illegal Eviction From and Unlawful Occupation of
Land Act 19 of 1998
, they afforded these appellants the opportunity
to approach Corpclo and to make representations before Corpclo’s
application
was issued. No-one made use of this opportunity. In
principle and in the absence of prejudice to an occupier, there is no
reason
why a subsequent owner of land may not rely on a notice of
termination of right of residence given by the previous owner of that
land.
[22]
In my view, the LCC should have concluded on the review record that
the service of the previous application constituted just
and
equitable termination of the rights of residence of the first to
sixteenth appellants and that they had an effective opportunity
to
make representations before the termination. There was, however, no
compliance with
s 9(2)
(a)
in respect of the seventeenth
appellant, who moved onto the farm during June 2012. A
reference to the appellants must hereinafter
be understood as
reference to the first to sixteenth appellants, unless the context
indicates otherwise.
[23]
Counsel’s second argument was that the provisions of
s 9(2)
(d)
(i) had not been complied with. The provisions
of
s 9(2)
(d)
are couched in peremptory terms. See
Molusi
& others v Voges N O & others
[2016] ZACC 6
;
2016 (3) SA
370
(CC);
2016 (7) BCLR 839
(CC) para 33. The prescribed particulars
are encapsulated in Form E of the Extension of Security of Tenure
Regulations. In terms
of Form E particulars such as a summary of the
grounds on which the eviction will be sought, must not only be
contained in a written
notice to the person in question, but must
also be orally conveyed to him or her by the sheriff in an official
language that he
or she understands.
[24]
In this regard the LCC said that the returns of the sheriff bore no
resemblance to Form E. This is not surprising, as these
were simply
the returns of service of the trust’s application that had been
served on the appellants. They did not purport
to constitute returns
of service of notices in terms of s 9(2)
(d)
. The fact is
that the trust gave no notice to the appellants as required by
s 9(2)
(d)
.
[25]
The LCC said that the appellants were fully aware of their rights
even before the trust became the owner of the farm. It stated
that in
the absence of any possible prejudice to the appellants, insistence
on technically correct service of notices in terms
of s 9(2)(d)
on the appellants would cause grave injustice to the trust and the
Austin family. The LCC added:
‘
The
facts of this matter demand that strict compliance with the service
provisions of the Act and the regulations be waived in the
interests
of justice, equity and the need to prevent the administration of
justice falling into disrepute by perpetuating injustice
through the
insistence on compliance with formalities.’
The
LCC said that as a high court, it has the inherent power to waive and
condone the non-compliance with ESTA and the regulations.
[26]
These statements cannot be countenanced. The LCC was established by
s 22
of the
Restitution of Land Rights Act 22 of 1994
and is a
creature of statute. It is unnecessary to determine whether the LCC
has the inherent power to regulate its process in
terms of s 173
of the Constitution, because it was not free to simply waive or
condone non-compliance with peremptory statutory
provisions. Subject
to the proviso to s 9(2)
(d)
, its provisions had to be
complied with. This does not, of course, mean that every deviation
from prescribed formalities would
be fatal. The test is whether the
object of the peremptory statutory provision had been achieved. See
Maharaj & others v Rampersad
1964 (4) SA 638
(A) at 646C-E
and
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) para 22. The LCC ought therefore to have
concluded that there had not been actual compliance with s 9(2)
(d)
in respect of the appellants.
[27]
This, however, is not the end of the matter. The next question is
whether the matter fell within the purview of the deeming
provision
in s 9(2)
(d)
. This question requires an interpretation of
the phrase ‘the date of the commencement of the hearing of the
application’.
The hearing of an application commences when the
matter actually comes before the court. The ordinary meaning of the
phrase is
the date of the commencement of the hearing of the
application by the court. The proviso does not refer to the date of
set down
of the application, irrespective of whether the hearing
commences on that date or not. If that was intended, the legislature
could
easily have said so. On this construction, the occupier is
provided with the application after he or she received notice of the
termination of his or her right of residence. He or she is then
afforded a period of at least two months prior to the commencement
of
the hearing in court to consider his or her position and to take the
necessary steps to protect his or her rights. There is
nothing in the
context of ESTA that militates against the plain meaning of the
phrase. On the contrary, experience tells us that
the hearing of an
application often does not commence on the date when it was initially
set down. No reason for requiring two months’
notice prior to a
date other than the date of commencement of the hearing by the court,
presents itself.
[28]
The trust’s application was served on the appellants and the
other respondents therein on 11 March 2013. The notice of
motion
stated that the application would be made on 9 April 2013. The
opposing affidavit was only deposed to on 23 May 2013, more
than two
months after the service of the application. The hearing of the
application commenced early in 2014. In the circumstances
I am
satisfied that, on the aforesaid construction, the LCC should have
found that the provisions of s 9(2)
(d)
had been complied
with. The purpose of the provision had at any rate been achieved.
[29]
I now turn to the argument in respect of s 10 of ESTA. There is
no doubt that the provisions of s 10 had to be complied
with in
respect of each appellant individually. The trust presented evidence
that the first appellant and the eighth appellant
threatened the
Austins on separate occasions. On 13 November 2012, Mr Austin went to
the dwellings of the appellants to speak to
them. On his arrival, the
first appellant started shouting and said that the appellants would
not leave the farm. She uttered a
thinly veiled threat that harm will
come to the horses on the farm and told Mr Austin that the appellants
would make sure that
the Austins leave the farm before the appellants
do. On 1 December 2012 the eighth appellant came to the main house
and shouted
at the Austins that they will regret that they ever moved
onto the farm. These incidents were unprovoked. On 22 January 2013
the
eight appellant was part of a group of women who were cutting
down trees for firewood. The first and eighth appellants therefore
breached s 6(3) of ESTA.
[30]
Counsel correctly contended that there is no evidence directly
implicating any of the other appellants in the unlawful and
distasteful conduct that I have described. However, there is no
doubt, as counsel readily conceded, that but for the presence of
the
appellants on the farm none of this conduct would have taken place.
Despite several approaches by the Austins, not one of the
appellants
made any attempt to alleviate the situation or distance themselves
from the unlawful conduct. Instead they made common
cause therewith
and collectively displayed a hostile attitude towards the Austins.
Each individual appellant by their physical
presence over a
protracted period and intimidating and hostile attitude contributed
to the general intolerable situation. This
is not the kind of
situation where one or more of them can feign ignorance of what was
happening on the farm or seek to hide behind
a veil of anonymity. In
the result each appellant caused a fundamental breach of the
relationship between him or her and the Austins,
as envisaged by
s 10(1)
(c)
of ESTA. The LCC cannot be faulted for
concluding that the conduct of the appellants justified an eviction
order.
[31]
It has to be accepted that the execution of the eviction order will
render the appellants homeless. Because of this and because
the
appellants are in any event presently living in conditions that
seriously impair their human dignity, the municipality has
a
constitutional duty to provide them with emergency accommodation. As
Yacoob J said in
Government of the Republic of South Africa &
others v Grootboom & others
2001 (1) SA 46
(CC) para 24:
‘
The
State is obliged to take positive action to meet the needs of those
living in extreme conditions of poverty, homelessness or
intolerable
housing.’
See
also
City of Johannesburg v Changing Tides 74 (Pty) Ltd &
others
[2012] ZASCA 116
;
2012 (6) SA 294
(SCA) para 14.
[32]
The magistrate’s court ordered the municipality to report to it
in respect of, inter alia, the steps it intended to take
‘to
resolve the problem of homelessness’ of the appellants. The
order of the magistrate’s court specifically
directed the
attention of the municipality to the decision in
City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39
(Pty) Ltd & another
[2011] ZACC 33
;
2012 (2) SA 104
(CC).
[33]
The report of the municipality was compiled during December 2013. The
report painted a dire picture in respect of the availability
of
adequate housing within its area of jurisdiction. Out of some 60 000
households, about 31 000 are on a waiting list
for the provision
of houses. The report stated that in the event of the appellants
qualifying for placement on the waiting list,
they would not be
provided with houses in the foreseeable future. But the issue is not
whether the appellants should be given houses.
The appellants cannot
jump the queue. And although an owner of land may reasonably be
expected to be ‘somewhat patient’
and to endure the
presence of occupiers for some time, the owner cannot be expected to
fulfil the obligations of the state or to
provide free housing to the
homeless for an indefinite period. See
Blue Moonlight
paras 40
and 97.
[34]
What is in issue is the provision of emergency accommodation by the
municipality upon the eviction of the appellants. Emergency
housing
is temporary and may be rudimentary. In its report the municipality
acknowledged its constitutional obligation to provide
emergency
accommodation to the appellants. The municipality said that at the
time of the report it was unable to provide the emergency
accommodation to the appellants. It pointed out, however, that it was
in the process of developing an emergency accommodation facility.
The
report stated that it was expected that the construction of the
facility would be completed during the period June to December
2014.
The municipality therefore requested the magistrate’s court
‘not to grant the eviction order until the municipality
is in a
position to provide emergency housing’.
[35]
When the matter came before the LCC on 22 May 2014, it should in
these circumstances have made an order similar to the one
made by the
Constitutional Court in
Blue Moonlight
, namely, in essence, an
order delaying the execution of the eviction order for a period of
time and directing the municipality
to provide the occupiers with
emergency accommodation prior to the execution of the order.
[36]
Such order should now be issued by this court. The appellants rightly
did not seek an order as to costs.
[37]
The following order is issued:
1
The appeal succeeds only to the extent indicated below.
2
The order of the Land Claims Court is altered to provide that the
eviction order of the magistrate’s court of Wellington
is
confirmed in respect of the first to sixteenth appellants.
3
The execution of the eviction order is suspended for a period of 90
days from the date of this order.
4
The Drakenstein Municipality (the eighteenth respondent in the court
below) is ordered to provide the first to sixteenth appellants
with
temporary emergency accommodation within 75 days of the date of this
order.
__________________
C
H G van der Merwe
Judge
of Appeal
Appearances:
For
the Appellants:
P R Hathorn SC
Instructed by:
J D van der Merwe
Attorneys, Stellenbosch
Webbers, Bloemfontein