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[2019] ZAFSHC 245
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Residents of Moodraai Farm, Sasolburg v Metsimaholo Local Municipality and Others (4902/2019) [2019] ZAFSHC 245 (19 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4902/2019
In
the matter between:
THE RESIDENTS OF MOOIDRAAI FARM,
SASOLBURG
Applicant
and
METSIMAHOLO LOCAL
MUNICIPALITY
1
st
Respondent
SHERIFF OF THE HIGH
COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
SASOLBURG
2
nd
Respondent
SOUTH AFRICAN POLICE
SERVICE
3
rd
Respondent
JUDGMENT BY:
MHLAMBI
J,
HEARD ON:
28 NOVEMBER 2019
DELIVERED
ON:
19 DECEMBER 2019
MHLAMBI,
J
[1]
On 24 October 2019 Naidoo, J granted an order which provided that:
“
1. The
Respondents are interdicted and restrained from:
1.1
evicting, removing and displacing the applicant from Mooidraai
Farm, Sasolburg;
1.2
dismantling and/or demolishing structures or structures of the
Applicants on aforementioned property;
1.3
removing any material placed on the aforementioned property.
2.
The
order in paragraph 1 shall operate as an interim order pending the
final determination of
the status, validity and/or
interpretation of the order granted by this Court under case number
4916/2016;
3.
The
Applicants are granted leave to file a supplementary affidavit on the
interpretation, status and/or validity of the order issued
by this
Court under case number
4916/2016
on or before
FRIDAY, 1 NOVEMBER 2019
;
4.
The
First Respondent is granted leave to file a further supplementary
affidavit on the interpretation, status and/or validity of
the order
mentioned above on or before
8 NOVEMBER 2019;
5.
The
application is postponed to the opposed motion roll on
28
NOVEMBER 2019
6.
The
costs are reserved.”
[2]
The order referred to above was granted by Jordaan, ADJP on 9 March
2017 in the matter between: Metsimaholo Local Municipality
(the first
respondent) v Selloane Motjeane, Economic Freedom Fighters and the
Potential Unlawful Occupiers of Mooidraai, Sasolburg,
Free State
Province as the three different respondents. The order reads as
follows:
“
PART B:
2.1 The respondents
restore applicant’s possession of Mooidraai farm, Sasolburg on
or before
17 November 2016,
alternatively a date
determined by the Court, failing which the Sheriff is authorised to
demolish all structures erected thereon
and to restore applicant’s
possession thereof;
2.2 Confirmation of
the rule nisi contained in Part A of the Notice of Motion;
2.3 Respondents is
(sic) to evacuate Mooidraai farm Sasolburg on or before 17
November
2016
, alternatively a date determined by the Court;
2.4 The Sheriff is
authorised, in the event of respondent’s (sic) failing to
evacuate the land in issue referred to in paragraph
3 above on or
before the date determined by the Court, to evict respondents there
from;
2.5 The court order to
be served as is provided for in paragraph 5.3 to 5.5 of Part A of the
Notice of Motion;
5.6 Respondent (sic)
is to pay the costs of this application.”
[3]
Both parties filed supplementary affidavits as ordered. In essence,
the applicant submitted that, in its interpretation of the
order of 9
March 2017, the court must be informed by:
3.1 The injunction in
section 26(3) of the constitution 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 circumstances;
3.1 The purpose of the
Prevention of Illegal Eviction and Unlawful Occupation of Land Act
(‘’ the PIE Act’’)
that enjoins that an
eviction order may only be granted where it is just and equitable.
Justice and equity are informed by the
facts of each case;
3.3 The rights of the
applicants to be heard before an adverse order is made against them.
3.4 In conclusion, the
applicant prayed for an order declaring the court order granted under
4916/2016 on 9 March 2017 to be inoperable
as against the applicants.
[4]
The first respondent submitted that the word “
Potential
unlawful occupiers”
could only refer to possible, likely,
prospective or would- be unlawful occupiers and that there could be
no doubt that the court
order of 9 march 2017 related to all unlawful
occupiers, present at the time of the order and such unlawful
occupiers that might
occupy the farm Mooidraai in future. The present
applicants, although they went by a different name or description,
remained unlawful
occupiers and fell within the definition of the
Third Respondent as cited in that order. The order was both valid and
enforceable
as it was neither rescinded nor appealed against. It
could therefore not be disregarded and the first respondent was
entitled to
execute thereupon.
[5]
A brief background leading to the order granted by Naidoo J is that
the 1
st
respondent approached the court on an urgent basis on 15 August 2019
under case number 4916/16 seeking relief in line with the
order of 9
March 2017, that the respondents vacate Mooidraai Farm by no later
than 19 August 2019. The Sheriff to be authorised
to demolish all the
unauthorised structures erected thereon. In the founding affidavit
deposed to by the Municipal Manager on 14
August 2019, it was stated
that the 2
nd
and the 3
rd
respondents were indeed evicted from the farm
[1]
,
but, in breach of the order of 9 March 2017, the 2
nd
and 3
rd
respondents unlawfully occupied the farm with effect from 9 August
2019. The affidavit was filed to seek guidance from the Court
on the
effective date of the enforcement of the order of 9 March 2017 in the
light of the latest invasions and the date of the
demolition of the
shacks on the farm
[2]
.
[6]
It is evident that the application (as indicated by the averments of
Mr Molala’s founding affidavit in the 2017 application,
which
was attached and incorporated to this application) was based on the
circumstances that prevailed in 2016 and 2017 when that
order was
granted
[3]
. On 8 August 2019, a
member of the second respondent started allocating stands to the
third respondents, which was a contempt of
the order of 9 March
2017
[4]
. As at the date of the
deposition of the affidavit on 14 August 2019, the Municipal Manager
did not know the names and addresses
of the third and fourth
respondents
[5]
. Based on the
above, the first respondent sought the eviction of the
respondents
[6]
.
[7]
The preamble to the PIE Act, as starting point, provides for the
prohibition and the procedures to be followed for the eviction
of
unlawful occupiers. An unlawful occupier is defined as 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 with certain exclusions. Eviction has a corresponding
meaning to
“
evict”,
which means to deprive a person of
occupation of a building or structure, or the land on which such
building or structure is erected,
against his or her will.
[8]
Section 4 of the PIE Act provides that the court must serve written
and effective notice of the proceedings on the unlawful
occupier and
the municipality having jurisdiction at least 14 days before the
hearing of the proceedings. If a court is satisfied
that
service cannot conveniently or expeditiously be effected in the
manner provided in the rules of the court, service must be
effected
in the manner directed by the court. The court must consider the
rights of the unlawful occupier to receive adequate notice
and to
defend the case. Such notice must indicate on what date and at what
time the court will hear the proceedings; set out the
grounds for the
proposed eviction; state that the unlawful occupier is entitled to
appear before the court and defend the case
and, where necessary, has
the right to apply for legal aid.
[9]
If an unlawful occupier has occupied the land in question for less
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that it
is just and equitable to do so, after considering all the
relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed by women.
[7]
[10]
The order by Jordaan, ADJP, should be seen in the light of the
factual background and the circumstances as they obtained as
at the
time of the granting of the order. If the court is satisfied that all
the requirements of this section have been complied
with and that no
valid defence was raised by the unlawful occupier, it must grant an
order for the eviction of the unlawful occupier,
and determine a just
and equitable date on which the unlawful occupier must vacate the
land under the circumstances; and 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 determining
a just and equitable date,
the court must have regard to all relevant factors, including the
period the unlawful occupier and his
or her family have resided on
the land in question
[8]
.
[11]
In the light of the above, it is clear to me that the order of 9
March 2017 was given in accordance with the provisions of
the PIE Act
and that a proper consideration was given to the circumstances as
they were presented to the court. It would be improper
to expect of
the court to take into account circumstances of unlawful occupiers
who were not in occupation of the land then, but
only in the future.
How would the court have been expected to implement the provisions of
the Act to persons and situations which
were, as yet, not in
existence or arisen? It would be a gross violation of the rule of
law, the PIE Act and the Constitution for
the court to apply the
circumstances relevant to the unlawful occupiers of land in 2017 to
the applicants, who only occupied land
during 2019, without giving
the latter the right of audience in accordance with the
audi
alteram partem
rule.
[12]
I am grateful to Mr De La Rey, who acted on behalf of the first
respondent, who referred me to paragraph 6 of the decision
by
Mocumie, J (as she then was) in
Potential
Unknown Occupiers of Erf,
Mantsopa
Municipality and another vs. Mantsopa Local Municipality
[9]
which reads as follows:
“
[6]
The
first point in limine must fail on the simple basis that
the municipality on its own case obtained the court order
under case
number 525/2014 against the same unidentified/unknown potential
unlawful occupiers.
The interim order was even served on someone by the name or surname
of Damane but it’s not clear whether that person
occupied the
land in dispute. In any event, even after the municipality identified
the unlawful occupiers, as per the communication
attached to the
papers between the Municipal manager and the community at various
meetings, the municipality nonetheless proceeded
on the same papers
with the respondents cited as ‘potential unlawful occupiers’.
This argument is simply disingenuous
and cannot hold water
.
In any event there is no such person as ‘a potential unlawful
occupier’ in terms of PIE.”
(My
emphasis).
[13]
I agree with the sentiments expressed in this paragraph, especially
the reference to potential unlawful occupiers. In
Wormald
N.O and Others vs. Khambule
[10]
,
it was held that an owner seeking to evict an unlawful occupier, must
comply with the procedural provisions of PIE and on a consideration
of all the relevant circumstances, an eviction order was just and
equitable. In terms of section 26(3) of the Constitution, from
which
PIE partly derives, no one may be evicted from their home without an
order of court made after consideration of all the relevant
circumstances
[11]
. The
procedural requirements of section 4 (1)-(5) are peremptory and an
original order cannot be obtained on an
ex
parte
basis.
[12]
[14]
It is clear that the “
potential unlawful occupiers
”
espoused by the first respondent does not fall within the ambit of
the PIE Act as the unlawful occupiers of Mooidraai farm,
as at June
or August 2019, were not the unlawful occupiers of the same farm as
at 2016 or 2017 when the initial proceedings were
instituted. Viewed
solely from the fact-sensitive nature of the Act, the order of 9
March 2017 could never serve as notice or replace
any of the
requirements set out in section 4 of the PIE Act. In my view, that
order is what it purports to be: a valid order of
court, duly
executed upon and discharged as it had served its purpose. It does
not follow that the Municipality, as a result of
the above, is
without a remedy as it may approach the court in strict compliance of
the requirements of PIE, for the necessary
relief.
[15]
I have come to the conclusion that the order of 9 March 2017, was a
valid order, which served its purpose and was duly discharged.
As
such, it could neither serve as a notice as required by the PIE Act
nor serve as a basis for an ex parte against the applicants.
The
applicants have shown good cause for the granting of the relief
sought. The application must therefore succeed.
[16]
The applicants, as the successful party, are entitled to the costs.
[17]
In the result I grant the following order:
Order:
1. It is declared that
the court order granted under case number 4916/16 on 9 March 2017 is
inoperable against the applicants;
2. The interim order is
made final;
3. The first respondent
is to pay the costs of this application which shall include the costs
of the application heard on 24 October
2019 including the costs of
counsel.
_____________
MHLAMBI,
J
Counsel
for the Applicant: Adv. T Ramogale
Instructed
by:
Lovius Block
31
First Avenue
Westdene
Bloemfontein
Counsel
for Respondents: Adv. De la Rey
Instructed
by:
Peyper
Austen Inc.
39C
First Avenue
Westdene
Bloemfontein
[1]
Para
6 of the founding affidavit
[2]
Para
8 of the founding affidavit
[3]
Para
19 of the founding affidavit
[4]
Para 20 0f the founding affidavit
[5]
3
rd
respondents being the unlawful occupiers of Mooidraai farm and 4
th
respondents being the potential unlawful occupiers of Mooidraai Farm
[6]
That
application and a subsequent one were withdrawn before the order of
24 October 2019
[7]
Section
4(6) of the PIE Act
[8]
Section
4(8) and (9); Ekurhuleni Metropolitan and Another v Various
Occupiers, Eden Park Extension 5 [2014] 1 All SA 386 (SCA)
[9]
(1381/2015)
[2015] ZAFSHC 162
(28 August 2015)
[10]
2006
(3) SA 562 (SCA)
[11]
Wormald,
supra, 568G at para 11; Cape Killarney Property Investments (Pty)
Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA)([2001]
4 All SA 479)
at 1229E (SA)
[12]
Cape
Killarney, supra para 18