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[2015] ZAGPPHC 265
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Blum N.O. v Seshoka and Others (40777/2014) [2015] ZAGPPHC 265 (4 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 40777/2014
DATE
HEARD: 04/05/2015
In
the matter between:
BRYCE
BLUM N.O.
…............................................................................................................
Applicant
and
DORAH
MAPITSO
SESHOKA
....................................................................................
First
Respondent
ALL
THE OTHER UNLAWFUL
OCCUPIERS
.....................................................
Second
Respondent
CITY
OF JOHANNESBURG
MUNICIPALITY
.......................................................
Third
Respondent
JUDGMENT
J
W LOUW, J
[1]
This is an applicantication in terms of the Prevention of Illegal
Eviction and Unlawful Occupation of Land Act, 19 of 1998 (PIE).
The applicanticant, who is the appointed executor in the estate of
the late Michael Tremayne Benjamin (“the deceased”),
applicanties for the eviction of the the first respondent and
other allegedly unlawful occupiers (cited as the 2
nd
respondent) from the property known as erf 68 President Park
Agricultural Holdings, also known as 118 Modderfontein Rd, President
Park Agricultural Holdings, Gauteng. The deceased was the
registered owner of the property at the time of his death.
[2]
The applicantication is opposed by the first respondent, to whom I
shall refer as the respondent. The respondent alleges
that she
has continuously resided on the property since 1995 with the express
consent of the previous owner, a Mr Pienaar, as well
as that of the
deceased. She states that the property is agricultural land and
disputes that PIE is applicanticable.
She alleges that she is
an occupier of the property as envisaged by the Extension of Security
of Tenure Act, 62 of 1997 (ESTA).
In this regard, she alleges
that she works the land herself and that she feeds herself, her 3
children, her boyfriend, her younger
sister and the younger sister’s
children by growing vegetables and by “killing livestock”
on the property.
[3]
Before issuing the application, the applicant’s attorneys
addressed a letter to the respondent in which the respondent
was
notified by the applicant that her right to reside on the property
has been terminated. The letter summarises the respondent’s
rights in terms of ESTA and advises her to approach an attorney, the
Department of Land affairs, the local municipality or the
Legal Aid
Board to explain her rights to her more fully. The letter
further states that should the respondent claim that
ESTA applies to
her, it is incumbent upon her to supply the owner with information
supporting that claim to enable him to place
that information before
the court. The letter further refers the respondent to the
provisions of PIE and advises her that
if she does not claim that
ESTA applies to her, the provisions of PIE will be complied with
before application is made for her
eviction.
[4]
The respondent did not respond to the letter and the applicant
accordingly served an application for the eviction of the respondent
from the property and, with the leave of the court, a notice in terms
of s 4(2) of PIE. As already indicated, the respondent’s
defence is that she is entitled to occupy the property by virtue of
the provisions of ESTA.
[5]
Sec 1 of ESTA defines an occupier as:
“…
.
a person residing on land which belongs
to another person, and who has or on 4 February 1997 had consent or
another right in law
to do so, but excluding –
(a)
……
.
(b)
A person using or intending to use
the land in question mainly for industrial, mining, commercial or
commercial farming purposes,
but including a person who works the
land himself or herself and does not employ any person who is n ot a
member of his or her
family; and
(c)
A person who has an income in excess
of the prescribed amount.”
(The
amount which has been prescribed i.t.o par (c) is R5 000.00 pm.)
[6]
It was held in
Skhosana and others v
Roos t/a Roos se Oord and others,
2000
(4) SA 561
(LCC) at par. [26] that a person who claims to be an
occupier in terms of ESTA, must prove that he or she complies with
all components
of the definition. The onus in this regard
therefore rests on such the respondent.
[7]
I have referred above to the respondent’s evidence in this
regard. This evidence is disputed by the applicant in
his
replying affidavit. The applicant states that the respondent is
using the land mainly for commercial purposes and that
she is
definitely not working the land herself. The applicant attaches
photographs to the replying affidavit which show that
no farming
activity takes place on the property, but that it is used for
commercial activities like a tuck shop and a tow-in service.
The photographs do not depict any tow-in service being conducted on
the property, but they do show the outside of what can be described
as a tuck shop which displays a sign which reads “Fruit &
Veg” with a picture of fruit and vegetables below
the sign.
On the left of the sign one sees a menu with prices of hamburgers,
Russian sausages, etc. The photographs
of open areas on the
property do not indicate any agricultural activity.
[8]
The respondent did not deal with her monthly income in her answering
affidavit. The applicant states in his replying affidavit
that
it is impossible that the Respondent earns less that R5 000.00
per month as she is a director of two companies and a
member of three
close corporations, proof of which is attached to the replying
affidavit.
[9]
The respondent filed a supplementary affidavit for which no leave was
sought from the court. She deals in the affidavit
with her
medical records which had not been dealt with in her answering
affidavit. I was informed by Mr. Fehler, the respondent’s
attorney, that that was the reason why a postponement was sought on
the previous occasion when the matter came before court.
[10]
The respondent did not, however, respond in her supplementary
affidavit to the applicant’s evidence that she was conducting
commercial activities on the property or that her income must be more
than R5 000,00 per month. Mr Fehler submitted
that she was
not entitled to do so. Nothing, however, prevented her from
seeking the leave of the court to file a supplementary
affidavit in
that regard which, undoubtedly, would have been granted since the
issue of the respondent’s use of the property
and her monthly
income was raised in the applicant’s replying affidavit which
she had not had an opportunity to deal with
before. The
respondent was also not entitled to file a supplementary affidavit in
respect of her medical records without
the leave of the court, but
that did not deter her from filing such supplementary affidavit.
If she did have an answer to
the applicant’s evidence regarding
her use of the property and her monthly income, I have little doubt
that she would have
dealt with such evidence in her supplementary
affidavit, with or without the leave of the court being sought.
[11]
I therefore conclude that the respondent has failed to show that she
is an occupier of the property as contemplated by the
definition of
that term in s 1 of ESTA. It follows that ESTA does not apply
to the respondent and that, in view of the applicant’s
termination of her right to occupy the property, she and the other
occupiers are in unlawful occupation of the property.
[12]
I accordingly grant an order in terms of the draft order prepared on
behalf of the applicant, subject thereto that I have inserted
a
period of ninety days in par 1 of the order.
Counsel
for the applicant: Adv. H.W. Botes
Instructed
by: Rorich Wolmarans & Luderitz Inc
For
the First Respondent: Mr. M. Fehler