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[2018] ZALMPPHC 51
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Kgaria v Phetla (3033/2017) [2018] ZALMPPHC 51 (23 August 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 3033/2017
Reportable
Of
interest to other judges
Revised.
23/8/18
In
the matter between:
HLABIRWA
SHEMANE
KGARIA
APPLICANT
And
DAVID
MOKGANENG
PHETLA
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant bought the farm Mapochsgronde 854 Registration Division
J.S Limpopo (“the farm”) from Mr and Mrs Tryhou
(‘the
previous owners”). The farm was registered by the
Registrar of Deeds into the applicant’s names on
the 26
th
February 2015. According to the applicant prior to buying and taking
occupation of the farm, the previous owners informed him of
three
occupiers of the farm who were Dina Phetla (“third
respondent”), her husband January Phetla (“deceased”)
and one Kleinbooi Stuurman. The previous owners informed him
that they found these three individuals on the farm when they
bought
it during 2002. The third respondent who is now aged 92 years
told him that she came to live on the farm as a teenager.
[2]
The first and second respondents are the children of the third
respondent. According to the applicant, he started encountering
problems after taking occupation of the farm when he was told by the
first respondent that it is their farm and that he could not
do as he
pleases. The first respondent told him never to set his foot on
the farm, otherwise he will be in serious trouble.
The
respondent continued hurling insult at him as he was leaving where
the respondents are staying. He told the first respondent
that
it was his farm and he will do as he pleases on it.
[3]
According to the applicant during August 2015 he and the first
respondent laid counter charges of
crimen injuria
against each
other. Since this incident, his problems with the respondents
increased. The respondents started conducting
illegal hunting
on the farm with their dogs. He experienced theft of items on
the farm. When second respondent was
released from prison, they
took one of his jojo tank and its stand and took it to their
homestead.
[4]
According to the applicant on the 2
nd
March 2017 the
respondents laid false charges of
crimen injuria
against him.
However those charges were withdrawn. The respondents’
vandalised his water infrastructure on the farm.
The
respondents threatened to dismantle his entire wind pomp and
assembled it elsewhere.
[5]
According to the applicant, the respondents’ actions prompted
him in launching an application seeking an order that the
first and
second respondents be evicted from the farm. In the
alternative he is seeking an order that the respondents
be
interdicted from interfering with the day to day conduct of farming
activities, vandalising the infrastructure on the farm,
from removing
and/or utilising the infrastructure on the farm without the specific
authorisation of the owner of the farm.
The applicant
acknowledges that the third respondent is an occupier on the farm and
does not seek an eviction order against her.
[6]
According to the applicant, the first respondent takes care of the
third respondent. The applicant contends that when
he bought
the farm, the second respondent was neither living on the farm nor
did he have any legal right to be on the farm.
The applicant
submits that at present he is precluded from farming and the
respondents have several cattle and donkeys on the farm
without his
permission. He further submits that neighbours have already
complained about the unlawful livestock on his farm.
[7]
According to the first and second respondent, they were born on the
farm and are therefore protected by the provisions of the
Extension
of Security of Tenure Act no 62 of 1997 (ESTA). They are
staying on the farm with their mother who is 92 years
old and are
looking after her. The house they are staying in, they regard
it as their only home.
[8]
They came to know the applicant during August 2015 when he came to
their homestead being violent, threatening and swearing at
them, and
that is when they laid charges of
crimen injuria
against him.
According to the respondents’, the previous owners have
constructed a windmill water pump which was supplying
them with
water. However, the applicant has dismantled that windmill
which was closer to their home and installed it to a
new borehole
which is about a kilometre away from their homestead.
[9]
They used to have four donkeys which they used to go and fetch water
on a donkey cart. The applicant has taken away their
donkeys
and they are now suffering. The applicant has been terrorising
them, telling them that he will make sure that they
vacate his farm.
One day they found that he had locked the gate that they use to enter
and exit the portion of the farm where their
house is located.
They called the police who used a bolt cutter to cut the lock.
[10]
The respondent’s contends that they are the lawful occupiers on
the farm, and that they are having consent to reside
there and such
consent was never withdrawn. They deny that they are conducting
any illegal hunting on the farm. They denies
damaging the applicants
farming infrastructure. They deny that they are having any cattle on
the farm. According to them,
the jojo tank has been at their
homestead for a long time. The respondents further contends
that they have been occupiers
who have been in occupation of the farm
prior the 4
th
February 1997. The respondents dispute
that they have told the applicant that the farm is theirs. The
respondents submits
that they understand very well that they are not
the owners of the farm.
[11]
The respondents answering affidavit was filed out of time and they
have made an application for condonation for late filing
of their
answering affidavit. The applicant is opposing the respondents’
application. It is trite that in an application
for condonation, the
factors which must be considered are the degree of lateness,
explanation for the delay, prospects of success
and any prejudice
which might be suffered by either party.
[12]
Even though the respondents were extremely out of time, they have
adequately dealt with the explanation for the delay.
The
respondents have also shown that they are having a fairly good chance
of prospects of success in their opposition. If
their
application is not granted, they will be seriously prejudiced as the
applicant will proceed with the matter on unopposed
basis. I am
therefore satisfied that the respondents’ have shown good cause
why condonation for late filing of their answering
affidavit should
be granted.
[13]
The applicant is seeking an order to evict the first and second
respondent. The first and second respondents are arguing
that
they are occupiers as defined in ESTA. What the court must
first determine is whether the respondents are occupiers
in terms of
ESTA.
[14]
In
Snyders and Others v De Jager and Others
[2016] ZACC 55
(21
December 2016)
at para 52 the court said:
“
The word
‘occupier’ in ESTA is defined 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’ is an occupier if he or she
does not fall within the
exceptions provided for in paragraph (b) and (c) of the definition”
[15]
The first and second respondent are brothers, whilst the third
respondent is their mother. The third respondent is 92
years of
age, and she is therefore of advanced age. The applicant has conceded
that the third respondent is protected under ESTA
and he therefore
does not seek any eviction order against her. At her age the
third respondent will need someone to look
after her. The
respondents are a family.
[16]
In
Hattingh v Juta
2013 (3) SA 275
(CC) at 290 A-C Zondo J said:
“
There is no
need to attempt to define the term ‘family’ with any
precision other than to say that it cannot be limited
to nuclear
family. The first and third applicants are two of Mrs
Hattingh’s sons. The second applicant is Mrs
Hattingh’s
daughter-in-law. In my view, whatever notion of family is
contemplated in s 6 (2) (d) it will include the
children of the
occupier. I do not think that the attainment of the age of
majority or being independent of their parents
takes a person out of
the ambit of his or her parent’s family.”
[17]
It has been established that third respondent is an occupier in terms
of ESTA and the applicant does not dispute that.
The first and
second respondents are the children of the third respondent, they
have reached the age of majority and are no longer
dependant on the
third respondent. The first applicant is now working at the
neighbouring farm but still reside in the same
house with the third
respondent. The second respondent has served some time in
prison and on his release he returned
to the farm. In line with the
principles formulated in Hattingh v Juta
supra,
as long as the
third respondent is still alive it is immaterial whether the first
and second respondent have reached the age of
majority or are
independent, they will remain under the wing of the third
respondent. Therefore, in my view they are occupiers
protected
by ESTA.
[18]
Section 10 (1) of ESTA makes provision for eviction of a person who
was an occupier on 4 February 1997. It reads as follows:
“
(i) An order
for the eviction of a person who was an occupier on 4 February 1997
may be granted if-
(a) the occupier has
breached section 6 (3) and the court is satisfied that the
breach is material and that the occupier has
not remedied such
breach;
(b) the owner or the
person in charge has complied with the terms of any agreement
pertaining to the occupiers right to reside on
the land and has
fulfilled his or her duties in terms of the law, while the occupier
has breached a material and fair term of the
agreement, although
reasonably able to comply with such term, and has not remedied the
breach despite being given one calendar
months’ notice in
writing to do so;
( c) the occupier has
committed such a fundamental breach of the relationship between him
or her and the owner or person in charge,
that it is not practically
possible to remedy it, either at all or in a manner which would
reasonably restore the relationship;
or
(d) the occupier –
(i) is or was an
employee whose right of residence arises solely from that employment;
and
(ii) has voluntarily
resigned in circumstances that do not amount to a constructive
dismissal in terms of the Labour relations Act”
[19]
Section 6 (3) of ESTA reads as follows”
“
An occupier may
not-
(a)
Intentionally and unlawfully harm any other person occupying
the land;
(b)
Intentionally and unlawfully cause material damage to the
property of the owner or person in charge;
(c)
engage
in conduct which threatens or intimidates others who lawfully
occupy the land or other land in the vicinity; or
(d)
enable
or assist unauthorised persons to establish new dwellings on
the land in question”
[20]
In this case there are counter accusations against both the applicant
and respondents. What is clear is that after the applicant
took
occupation of the farm, he did not introduce himself properly to the
respondents. The parties did not sit with each
other and
determine and/or agree how they were going to live with each other on
the farm, hence the laying of counter charges with
SAPS and counter
accusations with each other. In my view, the parties have
differences with each other. However, those
differences are not
so material to justify an order for the eviction of the first and
second respondents from the farm. Their
relationship can still
be mended. Therefore, in my view, it will not be just and
equitable to evict the first and second
responds from the farm.
The respondents for all these years have regarded their house on the
farm as their only home.
[21]
Turning to the order for a final interdict. It is trite that in
order to succeed in obtaining a final interdict, the
applicant has to
establish the existence of a clear right, that an injury had actually
been committed and the absence of any other
satisfactory remedy. (
See
Setlogelo v Setlogelo
1914 AD 221
at 227).
[22]
The applicant by virtue of been the registered owner of the farm, and
the respondents have also acknowledged the applicant’s
ownership of the farm, in my view satisfy the requirements of a clear
right. On the second requirement, both parties have
counter
accusations against each. Basically the parties are accusing
each other of been the aggressor. In my view,
on these aspects,
there is a serious and genuine dispute of fact which will not be
decided on the papers. On the papers as
it stand, it will be
difficult to find what act the respondents did that is prejudicial to
the applicants rights.
[23]
With regard to the absence of any satisfactory remedy, as I have
already pointed out above that the applicant did not properly
introduce himself to the respondents, the parties can still sit
together and iron out their differences. As a dispute of
fact
existed on papers as to who did what, the applicant’s
application stands to fail
. (See Plascon Evans Paints v Van
Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634e- 635 C)
[
24]
In the result I make the following order
24.1 The
respondent’s application for condonation for late filling of
their answering is granted.
24.2 The
applicant’s application is dismissed with costs.
MF.
KGANYAGO
JUDGE OF THE HIGH
COURT POLOKWANE, LIMPOPO DIVISION
APPEARANCE:
COUNSEL
FOR THE APPLICANT : Adv ZF Kriel
INSTRUCTED
BY: Wagener Attorneys
COUNSEL
FOR RESPOPNDENTS : Adv LA Nkoana
INSTRUCTED
BY: Maboku Mangena Attorneys
DATE
OF HEARING: 06 August 2018
DATE
OF JUDGEMENT: 23
rd
August 2018