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[2019] ZAFSHC 27
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Molatedi and Another v Lempe and Others (4236/2018) [2019] ZAFSHC 27 (14 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4236/2018
In
the matter between:
SEIPHEMO
ABRAHAM
MOLATEDI 1
ST
APPLICANT
GABAIKANGWE
SARAH
NKHASHU 2
ND
APPLICANT
and
NKGONO
PAPADI
LEMPE 1
ST
RESPONDENT
ALL OTHER OCCUPEANTS
OF THE
PROPERTY ERF […],
MANGAUNG,
DISTRICT BLOEMFONTEIN,
FREE
STATE
PROVINCE 2
ND
RESPONDENT
MANGAUNG LOCAL
MUNICIPALITY 3
RD
RESPONDENT
HEARD
ON:
7 FEBRUARY 2019
JUDGMENT
BY:
CHESIWE, J
DELIVERED
ON:
14 MARCH 2019
[1]
This is an application in terms of which
the Applicants seek an eviction order against the 1
st
Respondent Ms Nkgono Papadi Lempe and those occupying with her at the
property ERF […] Mangaung District Bloemfontein which
application is brought in terms of Section 4 of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998
(PIE
Act). The 1
st
Respondent opposed the application.
[2]
On 30 August 2018 Loubscher J granted Part
A of the Notice of Motion. On the 6 December 2018 the matter
was before myself
and it was postponed to 7 February 2019 with 1
st
and 2
nd
Respondent ordered to pay the costs.
[3]
The 3
rd
Respondent is the is the Mangaung Local Municipality as defined in
Section 10B
of the
Local Government Transition Act 209 of 1993
,
situated at Cnr of Nelson Mandela Drive and Markgraaff Street,
Bloemfontein.
[4]
The issue is whether the 1
st
Respondent and her children are unlawful occupiers of the Applicants’
property and if it is just and equitable to order the
eviction of the
1
st
Respondent and her minor children.
[5]
The Applicants in 2010/2011 purchased an
empty Erf […] from a Mr Molefi Raymond Modise with the
intention to erect a proper
residence when they obtain the necessary
funds. The Applicants registered a title deed with transfer number
75836/2011 attached
as annexure A to the paper. According to the 1
st
applicant in 2011 he noticed a corrugated iron structure erected on
the Erf [...] and it was occupied by the 1
st
Respondent. The 1
st
Applicant approached the 1
st
Respondent to inform her that the Erf [...] was registered in his
name and that she must vacate the property and take her corrugated
iron structure with her. The 1
st
Respondent refused to vacate the Erf [...]. The Applicants launched
and eviction application at the Magistrate Court in 2015, under
case
number 1281/20154. The court granted an eviction order on the
17 April 2015. The 1
st
Respondent was evicted by the Sheriff in Bloemfontein. However,
after being evicted the 1
st
Respondent moved back into the Erf [...]. The 1
st
Respondent alleges that the 3
rd
Respondent erroneously transferred the Erf to Molefi Raymond Modise
and that the said Mr Modise had never occupied the property.
[6]
The 1
st
Respondent approached the Magistrate Court for an application to
rescind the court order granted on the 17 April 2017. On
the 13 September 2018 the court rescinded the eviction order.
According to the 1
st
Respondent the matter is still pending at the Magistrate Court. The
1
st
respondent is currently occupying the premises with her two (2) minor
children of school going age and her 23 year old daughter.
[7]
The 3
rd
Respondent attempted to intervene between the parties in order to
resolve the matter. The parties were called to a meeting
on the
7 September 2017 with the HOD of Human Settlement, Adv. MJN Phaladi
and SJ Letawana, General Manager for Implementation
Support; and the
letter read as follows:
“
It
was resolved as follows:-
i.
The site in dispute has a tittle deed in
the names of Seiphomo Abraham Molatedi;
ii.
There is also court order on the above
mentioned site number [...] Extension 5, Rocklands;
iii.
The order of the court and tittle deed must
be taken into serious cognisance that no person or institution may
ignore or interfere
with them, since it will constitute contempt of
court;
iv.
The aggrieved party i.e. Nkgono Papadi
Lempe have a right to challenge the matter in the High Court;
v.
Molatedi families has the right to
approach the court to inform it that the other party is committing a
contempt of court
if she fails to abide by it;
vi.
Nkgono Papadi Lempe must vacate the place
on or before the 6 December 2017; and
vii.
Nkgono Papadi Lempe must contact SJ
Letawana and MA Makhetha to assist her with an alternative site.
If she is working she
will to procure the site as per council policy
made available to her.”
[8]
Adv. Johnson on behalf of the Applicants
submitted in oral argument that the Applicants have a registered
title deed on Erf [...]
Manguang, Bloemfontein. He mentioned that the
Applicants purchased the site as an empty site. Adv. Johnson stated
that the 1
st
Respondent’s denial that she was not at the meeting held by the
3
rd
respondent is disputed as it was common course that the 1
st
Respondent was at the meeting that was held at the offices of the 3
rd
respondent. The 1
st
Respondent was not satisfied with the resolution of the 3
rd
Respondent and proceeded to apply for a rescission of the eviction
order granted at the Magistrate Court.
[9]
Adv. Johnson argued that the confirmatory
affidavit had a wrong name of SA Mbali instead of the deponent,
Sephemo Abraham Molatedi,
he submitted that the signature on the
affidavit is that of the 1
st
Applicant and that it was an error on the part of the attorney who
has attached a confirmatory affidavit to confirm the contents
of the
affidavit. He further mentioned that the document that the 1
st
Respondent relied upon that she had a deed of sale transaction with
the 3
rd
Respondent is questionable as the name of MJ Matlole is not the same
name as that of the person who signed the document. In conclusion
Adv. Johnson submitted that this matter comes as far back as 2002 and
the Applicants are being prejudiced by not being allowed
to take
possession of their property.
[10]
Mr. Litheko on behalf of the 1
st
and 2
nd
Respondent submitted in oral argument that the 1
st
Respondent took possession of a property that belonged to the 3
rd
Respondent and that the 3
rd
Respondent had the intention to transfer the property to the 1
st
Respondent. He indicated that the 3
rd
Respondent in spite of having been served the papers elected not to
come to court to explain whether it is just and equitable to
evict
the 1
st
Respondent whilst the 1
st
Respondent is in possession of a deed of sale issued by the 3
rd
Respondent. Mr Litheko argued that the 3
rd
Respondent’s conduct is also questionable in not investigating
how an irregularity occurred in that the property has been
transferred to the 1
st
Applicant. Whereas the 1
st
Respondent was allocated the same property by the 3
rd
Respondent. He went further to submit that the 1
st
Respondent has been waiting for the 3
rd
Respondent to transfer the property into her name and only discovered
that the 3
rd
Respondent has sold and transferred the property into the 1st
Applicant’s name. He submitted that the court is not
to
grant an eviction order until the 3
rd
Respondent has completed an investigation into the irregularity that
occurred.
[11]
With regard to the commission of oath Mr
Litheko submitted that the court is to disregard the version that the
affidavit as signed
by the Applicant was indeed the Applicant as
there is no explanation before court as to who is SA Mbali and that
the affidavit
should be inadmissible.
[12]
Regulation 2 (1) of the Justices of Peace
and Commissioner of Oath Act, 16 of 1963, (Oath Act) read as follows:
“
(1)
Before a commissioner of oaths administers to any person
the
oath or affirmation prescribed by regulations he shall ask
the
deponent:
(a)
Whether he knows and understand the
contents of the declaration;
(b)
Whether he has any objection to taking the
prescribed oath; and
(c)
Whether he considers the prescribed oath to be binding
on
his conscience.
[13]
In terms of Regulation 3 (1) of the
regulations the deponent shall sign the declaration in the presence
of the commissioner of oath.
And Regulation 4 (2) of the
regulations the commissioner of oath shall sign the declaration and
print his full name and business
address below his signature and
shall state his designation and area for which he holds the
appointment or the office held by him
if he holds his appointment
ex
officio.
[14]
The 1st Respondent contends that the
applicant‘s affidavit does not comply with the regulations as
set out and nor has the
applicant’s proven that they met the
requirements of proper commissioned affidavit.
[15]
The 1
st
Applicant in the replying affidavit explained that he signed the
founding affidavit and that it is his signature that appears on
the
founding affidavit, that it was merely and administrative mistake by
the office of his legal representative. According to the
1
st
Applicant, neither the attorney nor the 1st Applicant noted that the
name SA Mbali appeared where the 1
st
Applicant was supposed to sign the affidavit. However the
Attorney for the Applicants Mr Jaques Van Der Vyver filed a
confirmatory
affidavit to confirm the contents of the founding
affidavit of the 1
st
Applicant. This clarified the true deponent of the founding
affidavit and in fact the SA Mbali was indeed an administrative
oversight.
[16
Having regard to the nature and purpose of
the directory provisions of the Regulations, regulation 4(2) of the
regulations issued
in terms of Section 10 of the Justice of the Peace
Commissioner of Oath Act 16 of 1963 which require a commissioner of
oath to
state his/her designation and area for which he/she holds the
office of appointment. The stamp of the commissioner of oath
on
the founding affidavit of the 1
st
Applicant clearly states the required provisions in terms of section
10 of the Oath Act have been complied with. Regulation 2 of
the Oaths
Act is in any event directory and not pre-emptory.
[17]
I am inclined in the context of this
application to exercise my discretion in accepting this document
relied upon by the Applicants
as an affidavit that was properly
signed by the 1
st
Applicant. I therefore accept the founding affidavit of the 1
st
Applicant as a truly signed and commissioned document.
[18]
The procedure to follow in initiating an
eviction process is set out in s 4 (20 of the PIE Act which provides
that:
“
4 (2) At
least 14 days before the hearing of the proceedings
contemplated in subsection (1), the court must serve written
and
effective notice of the proceedings on the unlawful occupier and the
municipality having jurisdiction.”
[19]
The substantive requirements for lawful
eviction the relevant sections are ss4 (6), (7), (8) and (9)
of the PIE Act
which provides that:
“
(6)
If an unlawful occupier has occupied the land in question for less
than six months at the time when 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, where the land
has been made
available or can reasonably be made available by a municipality or
other Organ of State or another landowner for
the relocation of the
unlawful occupier, and including the rights of and needs of the
elderly, children, disabled persons
and households headed by women.
(8) If the court is
satisfied that all requirements of this section had been complied
with and no valid defence has been raised
by the unlawful occupier,
it must grant an order for the eviction of the unlawful occupier, and
determine-
(a) a
just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
The date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (9) In determining a just and equitable date
contemplated in sub-section (8), the court must have regard to all
relevant
factors, including the period the unlawful occupier and his
or his family have resided on the land in question.”
[20]
Sections 26 and 28 of the Constitution are
the fundamental constitutional provisions to be taken into
consideration respect of eviction.
Section 26 provides that:
(1)
Everyone has the right to have access to
adequate housing.
(2)
The state must take reasonable legislative
and other measures, within its available resources, to achieve the
progressive realisation
of this right
(3)
No one may be evicted from their home, or
have their home demolished, without an order of court made
after considering all
the relevant circumstances, No
legislation may permit arbitrary evictions.”
[21]
And Section 28 reads:
“
Children-
(1)
Every child has the right
(a) ….
(b)
…..
(c) To
basic nutrition, shelter, basic health care services
and
social services
(d)….
[22]
It
is trite that in considering an application for eviction of an
unlawful occupier of a property the court has the discretion to
exercise based on what is just and equitable in the particular
circumstances. This principle is clearly set out in
Ndlovu
n Ngcobo; Bekker and another V Jika,
[1]
the
court stated that:
“
[18]
The court in determining whether or not to grant an order in
determining
the
date on which the property has to be vacated (s4(8)) has to
exercise a
discretion
based upon what is just and equitable. The discretion is one in
the
wide
and not the narrow sense.”
[2]
[23]
In
Dwele
v Phalatse and Others,
[3]
the
court said: “essentially there are two inquiries by these
sections. In terms of section 4 (7) of the PIE Act, an
eviction
order may only be granted if it is just and equitable to do so,
determined after the court has had regard to all the relevant
circumstances, including the availability of land for relocation of
the occupiers and the rights and needs of the elderly, children,
disabled persons and household headed by women. If the
requirements of s4 are satisfied and no valid defence to an eviction
order has been raised, a court ‘must’, in terms of s4 (8)
grant an eviction order. When granting such an order,
the court
must in terms of 4 (8)(a) of the PIE Act, determine a just and
equitable date on which the unlawful occupier or
occupiers must
vacate the premises. The court is empowered in terms of s4912)
to attached reasonable conditions to an eviction
order. The
date that is determine must be one that is just and equitable to all
parties.”
[24]
In
considering an application for eviction of an unlawful occupier of
the property the court has to exercise discretion based on
what is
just and equitable and after considering all the relevant
circumstances, including whether land has been made available
or can
be reasonable be made available by the municipality or other organs
of the state for the relocation of the unlawful occupiers
and
including the rights and needs of the elders, children, disabled
persons and households headed by women.
[4]
With regard to just and equitable the court in
Capricorn
Vrygrond Development
and
Others
[5]
held that just and equitable would differ from one person to another.
[25]
The parties with the assistance of the 3
rd
Respondent were a meeting was held to resolve this issue the 3
rd
Respondent in a letter dated 7 May 2017, annexure ‘C’
which indicated that an alternative site will be allocated to
the 1
st
Respondent if she contact a SJ Letawana and MA Makhetha. The
3
rd
Respondent in another correspondence dated 21 May 2018 annexure
‘B’ which reads as:
“
We
therefore recommend that should the respondent be willing to be
assisted
with an alternative emergency
accommodation, he/she must take note that no basic services are
connected to the site and he/she must
be ready to settle for shared
services in respect of communal taps, as beneficiaries will provide
themselves with pit latrines.”
[26]
The 3
rd
Respondent has been involved in this matter before it commenced at
the Magistrate court. The 3
rd
Respondent during their investigation wrote a letter dated 16 October
2015 that: “The current occupant must not move out
of the site
till the matter is officially finalised; there must not be any tussle
on aforesaid site; No arrest should take place
without the office
concern; Mr. Molatedi to remain where he is currently staying till
the matter is officially finalised."
[27]
Further meetings have been held to which
resolutions were made and it appears that the 1
st
Respondent was not satisfied with these resolution. The 3
rd
Respondent intervention in this regard must be commended. The
3
rd
Respondent went further and made the 1
st
Respondent aware that: “The order of the court and the title
deed must be taken into serious cognisance that no person or
institution may ignore or interfere with them, since it will
constitute contempt of court.”
[28]
According to the 1st Respondent she has
occupied the site from 2002 as it was allocated to her by the ward
Councillor. The 1
st
Respondent relied on annexure ‘NPLC’ which is the
confirmation of the allocation of site as well as annexure ‘NPLA’
the deed of sale between the 1
st
Respondent and the 3
rd
Respondent. However these documents are not the title deed for
the court to rely upon. Before me is the title deed
with deeds
number T000005836/2011 as issued by the Registrar of Deeds and this
cannot be simply be ignored by this court.
[29]
Indeed
it would be ideal that every person has a perfect and suitable place
to reside in, but the 3
rd
Respondent as the Municipality can provide this services only within
its means and resources. The 3
rd
Respondent is offering the 1
st
Respondent an alternative accommodation under the circumstances.
Though there is no proper services for example the pit latrines
are
offered. It is a known problem that the South Africa government
has a problem in offering proper toilet services to the
people.
Having regard to the matter of
Johannesburg
Housing
,
[6]
Willis J said:
“
[92]
The high courts are duty bound to have regard to the provisions of
PIE and the injunction of the Constitutional court to apply
their
minds to the contribution which municipalities make to the resolution
of the problems of housing. In doing so, it would
be
intellectually dishonest for a court not to take into account the
real problem that exist at a municipality level, with its
capacity in
terms of both of finances and its administrative personnel, to solve
problems. If a city cannot even mend potholes
properly and
resolve billing crises expeditiously, what hope does it have of
addressing adequately the needs of housing?
Courts cannot
blink, Bambi-like, at the real dangers that are posed through a lack
of capacity at a municipal level…..”
[30]
As correctly stated by Willis J in the
above matter it will indeed be intellectually dishonest for a court
not to take into account
the real problem that exist at municipality
level. In this instance the 3
rd
Respondent as the municipality as attempted to assist the 1
st
Respondent with what is available for accommodation and it is up to
the 3
rd
Respondent to take the offer for an alternative accommodation.
[31]
In the leading cases on eviction,
Blue
Moonlight Properties
and
City
of Johannesburg
, the Constitutional
Court recognised that the right to adequate housing is limited by the
resources the 3
rd
Respondent has available. This means occupiers cannot avoid
eviction simply by claiming that the alternative accommodation
offered by the 3
rd
Respondent is unsuitable.
[32]
The Legal Counsel for the 1st Respondent
raised an allegation during oral argument that the 3
rd
Respondent has irregularly transferred the property to the
Applicants, and that the 3
rd
Respondent must investigate this irregularity. However, there
is nothing in the papers before court that indicated an irregularity
was raised as a defence by the 1
st
Respondent. Nor was this allegation take up with the 3
rd
Respondent during the meeting between the parties and the 3
rd
Respondent. It was rather evidence raised from the bar.
[33]
On
the other hand one has the Applicants who have a proper Deed of
Transfer. The best evidence of ownership of a immovable
property is the title deed to it.
[7]
A title deed conforms to the preconditions specified for a public
document and is thus admissible as evidence to proof ownership
to
it.
[8]
In terms section 4(1) of
the PIE Act only the owner or person in charge of a land may apply
for the eviction of an unlawful occupier.
The Applicants having
proved ownership through their title deed are therefore allowed to
evict the 1
st
Respondent.
[34]
Considering that the relevant circumstances
in this matter and that alternative accommodation which is
specifically spelled out
in subsection (7) as one of the factors to
be considered in eviction proceeding, the eviction will not render
the Respondent and
her children homeless. In oral argument it
was raised by Counsel of the Applicants that the 1
st
Respondent‘s mother lives in the same street and likely to also
offer the 1
st
Respondent accommodation. As already mentioned that 3
rd
Respondent has offered the 1
st
respondent alternative accommodation.
[35]
I am satisfied that the Applicants have
followed and complied with the eviction proceedings in terms of
Section 4 of the PIE.
[36]
In the circumstances I find that the 1
st
Respondent and those occupying the property with her are doing so
without consent of the Applicants and their occupation is accordingly
unlawful. There is thus no reason in fairness or equity
considering the facts of this matter why the relief sought by the
applicants should not be granted. In other words it is
just and equitable to order the eviction of the 1
st
Respondents and those occupying the property with her. As the
3
rd
Respondent has offered the 1
st
Respondent alternative accommodation.
[37]
The immediate question is when should the
Respondent be order to vacate the property and having regard to the
date of implementation
of the eviction order, I am of the view
that it is just and equitable to afford the Respondent sixty (60)
days from the date that
this order is served on her for her to
vacate the property.
[38]
As far as costs are concerned Counsel for
the 1
st
Respondent submitted that as the trial started in the Magistrate
court it would be fair to grant cost on the magistrate scale.
I
found that should the proceedings have continued at the Magistrate
court as in the first instance an eviction order was granted
in
favour of the Applicants at the magistrate Court, though it was
successfully rescinded by the 1
st
Respondent. I agree with the Counsel for Respondent that this matter
would have been dealt properly in the Magistrate court and
thus costs
being in the discretion of the court it seems fair that to me that
costs be ordered to be on the Magistrate scale.
[39]
It is accordingly ordered as follows:
1.
That 1
st
and
2
nd
Respondents be ordered to vacate the property known as Erf [...],
Mangaung, District Bloemfontien, Free State Province, in compliance
with section 4 (1) of the Prevention of Illegal Eviction from
Unlawful Occupation of Land Act, 19 of 1998 on or before 14 May 2019,
on the grounds that the 1
st
and 2
nd
Respondent and any other occupiers are in unlawful occupation of the
said property and further that it is just and equitable that
they be
evicted from the property.
2.
That the Sheriff of the above Honourable
Court be authorised to with or without the assistance of the South
African Police services
evict the 1
st
and 2
nd
Respondent, together with all other occupants and their movables from
Erf [...], Mangaung Disrict Bloemfontein, Free State Province,
in the
event of them failing to vacate as ordered.
3.
That the Sheriff of the above
Honourable Court be authorised to remove from the property all and
any structures erected on and all
other goods from the property.
4.
That the 1
st
and 2
nd
Respondents be ordered to pay cost of this application on the
Magistrate scale.
_____________
S.
CHESIWE, J
On
behalf of 1
st
and 2n Applicant: Adv. Johnson
Instructed
by: Kramer Weihmann & Joubert INC
BLOEMFONTEIN
On
behalf of 1
st
and 2
nd
Respondent: Mr M
Litheko
Instructed
by: Litheko Motsoeneng Incorporated
BLOEMFONTEIN
[1]
2004
(1) SA 114
(SCA) para 18
[2]
See
also Media Workers Association of South Africa and
Others v Press Corporation of South Africa Ltd Perskor)
[1992 ZASCA
149.)
3
(11112/15)
[2017] ZAGPJHC 146 ( 7 June 2017)
[4]
See
subsection (7) of section 4 of PIE n
[5]
[2003]
3 ALL SA 371
( C)
[6]
“
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 38 (Pty) Ltd and Another
2012 (2) SA 104
( CC).
[7]
see
R V Nhlanhla 1960 (3) SA 565)
[8]
(cf
Hoofman and Zeffert op cit 150; Schmidt Bewysreg 3
rd
ed 331)