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[2017] ZANCHC 51
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South African Sweden International Housing Company v Sol Plaatje Local Municipality and Others (2086/2016) [2017] ZANCHC 51 (13 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case number:
2086/2016
Datum verhoor/Date heard:
03 / 05 /2017
Datum gelewer/Date
delivered:
13 / 06 /2017
In
the application for leave to appeal in:
SOUTH
AFRICAN SWEDEN INTERNATIONAL
Applicant
HOUSING
COMPANY
and
SOL
PLAATJE LOCAL MUNICIPALITY
First Respondent
PIETER
MOKITINI
Second Respondent
VICTOR
TAKU
Third Respondent
JOHAN
MOTSHWANAYSI
Fourth Respondent
GODFREY
MOTLOTENG
Fifth Respondent
LUCKY
SEEKOEI
Sixth Respondent
ISAAC
MOSHOETE
Seventh Respondent
NCEBO
MAMLELI
Eighth Respondent
SKILPAD
MICHAEL MOKALE
Ninth Respondent
SEIPATI
TSELE
Tenth Respondent
MPHO
MAGDELINE
Eleventh
Respondent
ALL THE UNLAWFUL
OCCUPIERS,
TRESPASSERS
AND MINERS OF THE LAND
BETTER
KNOWN AS THE OF ERF NO
33738
AND ERF NO 32196, KIMBERLEY,
SOL
PLAATJE MUNICIPALITY,
KIMBERLEY,
NORTHERN CAPE PROVINCE Twelfth
Respondent
Coram
:
ERASMUS
AJ
JUDGMENT
IN THE APPLICATION FOR LEAVE TO APPEAL OF THE 7
TH
to 12
th
RESPONDENTS
ERASMUS
AJ
[1]
On or about 5 October 2016 the applicant lodged an application in
terms of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, No 19 of 1998
(‘PIE’)
for the eviction of second and further respondents and/or any persons
occupying, trespassing and/or mining through
them from the property
known as Erf 33738, in extent 32,1216 Hectares, as well as the
property known as Erf No 32196, in extent
58,1939 Hectares, situate
in the Sol Plaatje Municipality, district Kimberley, Province
Northern Cape (‘the properties’).
[2]
The application firstly sought directions from the Court in respect
of the manner in which service of the application papers
and the
prescribed notices in terms of PIE was to be effected. The
application for the eviction of the second and further
respondents,
had been set down for 2 December 2016. The application papers,
including the Notices in terms of s4(2) and s4(5)
of PIE, had been
properly served in accordance with the directions issued by the
Court, as contained in the respective Court Orders.
[3]
The applicant thereafter received a letter from Richard Spoor
Attorneys, indicating that they intended to oppose the application
in
respect of some of the respondents. Subsequently, on 30
of November 2016, a notice of intention to oppose was served
and
filed on behalf of the second to sixth Respondents. This notice
made no mention of any of the other respondents' intention
to oppose
the application. This led to the application being postponed on
2 December 2016, to 9 December 2016. There
was no appearance
for the first, seventh and further respondents on 2 December 2016.
[4]
On 9 December 2016, again in the motion court, there had been no
appearance for the seventh and further respondents and the
applicant
sought their eviction and incidental relief, as per the notice of
motion. Having heard argument on behalf of the
applicant, I
granted the order for the eviction of the seventh and further
respondents and/or all persons occupying, trespassing
and/or mining
through them from the properties, with effect from 15 January 2017
and further relief to give effect to such eviction
order and costs,
as sought in the Notice of Motion.
[5]
I had further given directions pertaining to the service of the Court
Order of 9 December 2016 on the seventh and further respondents.
The eviction application in respect of the second to sixth
respondents was postponed to the opposed motion court roll of 3
February
2017. At that stage no answering papers had been filed
on behalf of the second to sixth respondents.
[6]
On 4 January 2017 the seventh to twelfth and further respondents,
through Richard Spoor Inc Attorneys, filed their application
for
leave to appeal the Court Order that had been granted in the motion
court on 9 December 2016. The names of the seventh
to eleventh
respondents appeared from the heading of the notice of application
for leave to appeal. For the sake of
convenience the
applicants herein will be referred to as the occupiers and the
respondent herein as owner of the properties.
[7]
The occupiers applied for leave to appeal to the Supreme Court of
Appeal, alternatively, to the full bench of this Court, against
the
whole of my judgment and order. During argument, it was
submitted that, should I grant leave to appeal, it should be
to the
full court of this Division.
[8]
In essence, it was argued on behalf of the occupiers that I had erred
in granting an eviction order on the papers before me
on 9 December
2016. The grounds of appeal appear from the Notice of
Application for Leave to Appeal. It was averred
that I had
erred in the following:
8.1
Granting an eviction order against unnamed respondents and which
cannot be objectively measured or implemented
with certainty that
only particular and presently unnamed and unknown number of
respondents are affected;
8.2
Finding that granting an eviction order was just and equitable, after
considering the relevant circumstances;
8.3
Finding that I had sufficient information on the relevant individual
circumstances of each affected unknown
respondent before it to reach
a finding on whether granting an eviction order was just and
equitable;
8.4
Failing to uphold the statutory duty to proactively ensure that all
relevant individual circumstances were
placed before the Court,
particularly in circumstances where it is clear from the papers that
the seventh to further respondents
are poor and face the prospect of
homelessness, as set out in
The
Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v
Steele
[2010]
4 All SA 54
(SCA) at para 15;
8.5
Finding that the applicant was entitled to an eviction order in
circumstances where it had not made an effort
to meaningfully engage
with the respondents with a view to resolving the dispute;
8.6
Finding that the applicant's papers establish that all of the seventh
to further respondents have alternative
accommodation;
8.7
Failing to find that some or all of the seventh to further
respondents would be rendered homeless by the order
of eviction, and
are therefore entitled to emergency alternative accommodation prior
to the execution of an eviction order;
8.8
Failing to find that no order of eviction could be made until
identified and serviced land had been made available
by the first
respondent or another organ of state or another land owner for the
relocation of seventh and further unknown respondents;
8.9
Failing to find that the matter was not ripe for hearing as the whole
application was opposed by the second
to sixth respondents and could
not be granted until their grounds of defence were heard;
8.10
Finding that the period within which the respondents are to vacate
the properties was sufficient;
8.11
Ordering the respondents to pay the applicants costs.
[9]
The test to be applied when adjudicating an application for leave to
appeal is whether there is a reasonable prospect that another
court
would come to a different conclusion to that reached in the judgment
that is sought to be taken on appeal. The use
of
the word “would” in s17(1)(a)(i)
[1]
is indicative of a raising of the threshold since previously, all
that was required for the applicant to demonstrate was that there
was
a reasonable prospect that another court might come to a different
conclusion.
[2]
[10]
From the grounds of appeal, as set out in the Application for Leave
to Appeal, it appears that the occupiers do not take issue
with the
preliminary proceedings and service of the application papers and
Court Orders.
[11]
S4(7) of PIE deals with the situation where an unlawful occupier had
been in occupation for more than six months, as in this
instance.
In terms thereof, a court may grant an order for eviction if it is of
the opinion that it is just and equitable
to do so, after having
considered all the relevant circumstances. The relevant circumstances
to be considered include whether land
has been made available or can
reasonably be made available by a municipality, other organ of State
or another landowner for the
relocation of the unlawful occupier and
also include consideration of the rights and needs of the elderly,
children, disabled persons
and households headed by women.
[12] S4(8) of PIE reads
as follows:
“
If the court
is satisfied that all the requirements of this section have been
complied with and that
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 (a).”
(My
emphasis)
[13]
In the case of
Nelie
Smith Mansuitrusters (Edms) Bpk v Herbst and others
Rampai J, stated
that a valid defence in this context “
refers
to a defence that would entitle an occupier to remain in occupation
as against the wish of the owner or person in charge
of the
property
”
.
[3]
In
paragraph [32] he stated further:
“…
However,
where the owner or the person in charge of the property denies any
entitlement of the occupier to be in occupation, the
onus rests on
the occupier to prove the grounds upon which (s)he contends (s)he is
entitled to remain in occupation of the property
(see Ndlovu v
Ngcobo; Bekker and another v Jika 2003 (1) SA 113 SCA
[also reported at
[2002] JOL 10161
(A) – Ed] at paragraph
[131]).”
[14]
Where an eviction takes place at the instance of an owner of property
and not an organ of State, such as in this instance,
it was said that
the effect of PIE is not to expropriate private property.
[4]
[15]
In
Ndlovu
v Ngcobo; Bekker and Another v Jika
[5]
Harms JA stated the legal position to be as follows:
“
Another
material consideration is that of the evidential onus. Provided the
procedural requirements have been met, the owner is
entitled to
approach the court on the basis of ownership and the respondent’s
unlawful occupation.
Unless
the occupier opposes and discloses circumstances relevant to the
eviction order, the owner, in principle, will be entitled
to an order
for eviction.
Relevant circumstances are nearly without fail facts within the
exclusive knowledge of the occupier and it cannot be expected of
an
owner to negative in advance facts not known to him and not in issue
between the parties. Whether the ultimate onus will be
on the owner
or the occupier we need not now decide.
”
(My
emphasis)
[16]
The occupiers had neither given notice of their intention to oppose
the application, nor raised any defence by 9 December 2016
when the
matter served before me in the Motion Court. The occupiers had
failed to file opposing affidavits, wherefore the
owner's
allegations, as set out in the founding papers, stood uncontested and
the matter was adjudicated on the facts as set out
in the founding
papers.
[6]
The uncontested
facts, as set out in the founding affidavit, were the following:
16.1
The applicant in the main application is the owner of the properties;
16.2
The occupiers are unlawful occupiers, as defined in section 1 of PIE;
16.3
The occupiers have invaded the properties to conduct illegal mining
operations and they do not reside on the properties
permanently;
16.4
The occupiers reside elsewhere and only occupy the structures on the
properties while conducting their illegal mining
activities and will
therefore not be rendered homeless in the event of their eviction;
16.5
The unlawful occupation of the properties is not only prejudicial to
the owner, but also to the rightful occupiers of
the houses on and in
the vicinity of the properties;
16.6
The portion of the properties occupied by the occupiers is not
serviced and there are no water pipes and/or taps, electricity
or
sanitation services;
16.7
The portion of the properties occupied by the occupiers is situated
under an electricity pylon which renders it unsafe
and unfit for
occupation;
16.8
The types of structures and their position create a danger not only
to the occupiers, but also to other residents in
the vicinity;
16.9
The owner’s existence and the continuation of its social
housing projects are being threatened by the unlawful
occupation and
conduct of the occupiers;
16.10The
occupiers are conducting illegal activities on the properties.
[17]
As the occupiers had failed to place any circumstances before me, I
was satisfied that, in this instance, it was
just and equitable to
grant the order for the eviction of the unlawful occupiers. I
thereafter determined a date which I
had deemed just and equitable
upon which the occupiers were to vacate the properties of the
applicant, being more than a month
after the date of the order.
[18]
The occupiers, through their legal representatives, gave notice of
their intention to apply for leave to appeal on 4
January 2017.
Although there is nothing in law that prevented the occupiers
applying for leave to appeal, their application
must be considered on
the application papers as it had served before me on 9 December
2016.
[19]
The eviction order, granted on 9 December 2016, had been granted by
default. The occupiers could have applied for the
rescission of
my order, subsequent to having obtained legal advice.
[7]
[20]
When applying for rescission, the occupiers would have been required
to show good or sufficient cause as to why the judgment
should be
rescinded
[8]
. This would
have entailed giving a reasonable explanation of their default,
showing that their application is made
bona
fide
and
showing that, on the merits they have a
bona
fide
defence, as required in terms of s4(8) of PIE, which
prima
facie
carries some prospects of success. If they had chosen to apply
for rescission, they would have been in a position to place
evidence
before Court pertaining to their circumstances and/or the effect
eviction would have on them.
[21]
The occupiers elected not to apply for the rescission of my order.
It was argued on their behalf that such an application
for rescission
would not have suspended my order and thus not have prevented their
eviction.
[22]
Section 18(1) of the Superior Courts Act
[9]
provides for the automatic suspension of the operation and execution
of a decision which is the subject of an application for leave
to
appeal or of an appeal. No provision is made for the automatic
suspension of the operation and execution of a decision
which is the
subject of an application to rescind. It appears that it had
not been the intention of the legislature to also
automatically
suspend the operation and execution of such a decision, as it would
then have been expressly included in the relevant
section.
[23]
This does not mean that the occupiers, had they applied for
rescission of my order, would have been without remedy. They
could have
approached
this Court under
rule
45A
to
suspend the execution of the order pending the finalisation of an
application for rescission.
[10]
[24]
Despite the fact that the occupiers had chosen to seek leave to
appeal my Order and not to apply for rescission, and leave
to appeal
is to be granted, there is nothing in law prohibiting the occupiers
to apply for rescission of my order and by doing
so, placing their
defence and/or circumstances before Court. By placing such
information before the Court, the Court hearing the
application for
rescission, and also the first respondent, would be able to identify
occupiers, if any, to whom the first respondent
owes its
Constitutional obligation and to ensure that the needs of such
persons are catered for.
[25]
As I need to adjudicate the application for leave to appeal of the
occupiers, I am required to decide whether there is a reasonable
prospect that another court would come to a different conclusion on
the papers before it.
[26]
Although each case is to be adjudicated on its own facts, the
landmark decision of the Constitutional Court,
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.
[11]
,
delivered
on 8 June 2017, provides clear guidance and instructions in respect
of the obligations of a presiding officer when dealing
with eviction
applications. It was held that in eviction proceedings, even
where an unlawful occupier has purportedly consented
to
his
or her eviction, the Court
is
not absolved from the obligation to consider all relevant
circumstances before ordering an eviction. I accept, for
purposes of the adjudication of this application for leave to appeal,
that
this duty of the Court extends also to unopposed applications for
evictions.
[27]
Having considered the judgment referred to above, I am satisfied that
there is a reasonable prospect that the Court dealing
with the appeal
would come to a different conclusion and/or consider
remitting the
application to the Northern Cape Division of High Court of South
Africa to issue further directions to the occupiers
and/or the first
respondent to file a report with the High Court pertaining to further
steps to be taken in order to provide alternative
land or emergency
accommodation to the occupiers, in the event of the eviction of the
occupiers.
[28]
It
follows that leave to appeal should therefore be granted. This
being so, I do not deem it necessary to deal with the grounds
for
leave to appeal, referred
to
in paragraph 8.1, 8.10 and 8.11
supra
.
[29]
I find no reason why the costs of this application should not be
ordered to be costs in the appeal
I therefore make the
following order:
1
LEAVE TO APPEAL AGAINST THE ORDER OF THIS COURT UNDER CASE NUMBER
2086/2016, ISSUED ON 9 DECEMBER 2016,
IS GRANTED TO THE FULL COURT OF
THIS DIVISION.
2
COSTS OF THE APPLICATION FOR LEAVE TO APPEAL SHALL BE COSTS IN THE
APPEAL.
_____________________
ERASMUS, SL
ACTING JUDGE
On
behalf of the Applicant (Respondents)
:
Adv.
T. Mosikili (oio Yolande Koen Attorneys)
On
behalf of Respondent (Applicant):
Adv.
A.G. van Tonder (oio Van de Wall Inc).
[1]
Superior Courts Act, No 10 of 2013
[2]
S
eatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
(201) 37 ILJ 1485 (LC)
[3]
[2017]
JOL 37421
(FB) at par [30] and [31]
[4]
City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
(Socio-Economic Rights Institute of South Africa as amicus curiae)
2012(11) BCLR 1206 (SCA) par [16]
[5]
2003(1) SA 113 (SCA) at par [19]; See also
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another (Lawyers for Human Rights
as Amicus Curiae
2012(2)
BCLR 150 (CC)
[6]
Boxer Superstores Mthatha and Another v Mbenya
2007(5) SA 450
(SCA) at 425F-G
[7]
Occupiers, Shulana Court, 11
Hendon Road, Yeoville, Johannesburg v Steele
[2010]
4 All SA 54 (SCA)
[8]
Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills Cape
2003
(6) SA 1
(SCA) at 9C
[9]
Act 10 of 2013
[10]
Erstwhile Tenants of Williston
Court and Another v Lewray Investments (Pty) Ltd and Another
2016 (6) SA 466 (GJ)
[11]
[2017]
ZACC 18
at paragraphs [39]-[65]