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[2015] ZAGPPHC 256
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Hlongwane v Motsoenyane N.O. and Others (1685/2013) [2015] ZAGPPHC 256 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO. 1685/2013
DATE:
8/5/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
ZWELI
HLONGWANE
............................................................................................................
Appellant
and
PAPILLON
MOTSOENYANE
N.O
.................................................................................
1
st
Respondent
MOLIFI
SLATIEL MOTSOENYANE
N.O
...................................................................
2
nd
Respondent
MADODA
SHADACK ZIBI
N.O.
…..............................................................................
3
rd
Respondent
MOLEFE
PETER MOALUSI
N.O.
…...........................................................................
4
th
Respondent
BADIRI
ANNA MFELANG
N.O.
…...............................................................................
5
th
Respondent
NATGEJI
KETTA TGYKIL
N.O.
…..............................................................................
6
th
Respondent
MOLELFE
AARON MOTSOENYANE N.O.
…..........................................................
7th
Respondent
JUDGMENT
DE
VOS J:
[1]
This is an appeal against summary judgement granted against the
Appellant (1
st
respondent
in the court a quo) for his ejectment from the farm Droogespruit,
being the remaining extent of portion 2 (Aurora) of
the farm
Droogespruit 416. The Motsoenyane Family Development Trust is the
owner of the farm mentioned above. The 1
st
– 7
th
Respondents, in their capacity as trustees of the said Trust, are
cited as applicants in the court a quo. The City Council of
Tlokwe, a
local government institution, was cited as the 2
nd
Defendant in the court a quo.
[2]
It is common cause that the Respondents, as Applicants, issued
summons against the Appellant under case no. 1685/2013 on 14
th
May 2013 for his ejectment from the said farm. In paragraph 13
of the summons it is pleaded that “
the
Defendant (
Appellant – own
insertion)
is occupying a certain
portion of the above-mentioned farm and is conducting farming
activities on the said property. The
Defendant has no right to
occupy and/or any claim to the farm Droogespruit
”.
[3]
Before dealing with the issues raised in the grounds of appeal it is
necessary to determine the cause of action as set out in
the
particulars of claim. It is clear from the contents of
paragraph 13 that what is alleged is that farming activities are
conducted on the said farm which is a commercial activity and does
not form part of the function or a form of dwelling or shelter.
In the case of
Ndlovu v Ngcobo Bekker
& Another v Jika
, 2003(1) SA
133 (SCA) at p124 paragraph 20
it was
held that commercial properties such as farming activities are not
subject to the Prevention of Illegal Eviction and Unlawful
Occupation
of Land Act, Act 19 of 1998 (PIE).
[4]
When summary judgement was granted it was held that the cause
of action is also not based on the Extension of Security
of Tenure
Act, Act 62 of 1997 (ESTA). Section 1 of ESTA defines the word
“evict”. It means to deprive a person
against his
or her will of residence on land or the use of land or access to
water which is linked to a right of residence in terms
of this Act,
and “eviction” has a corresponding meaning. Section
1 of ESTA also defines the word “occupier”
to mean a
person residing on land which belongs to another person, and who has
on 4 February 1997 or thereafter had consent or
another right in law
to do so, but excluding:
“
a)
…
b)
a person using or intending to use a 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 not a member of his or her family;
and
c)
a person who has an income in excess of the prescribed amount”.
[5]
The prescribed amount is set out in Government Gazette Vol. 402, No.
19587 dated 18
th
December 1998, Regulation Gazette, No.
6377, No. R. 1632. The qualifying income is set out in Section
2 of the Regulations
and reads as follows:
”
2
(1) The prescribed amount for the purposes of paragraph (c) of the
definition of “occupier” in Section 1(1) of the
Act shall
be an income of R5000 per month.
(2)
For the purposes of subregulation (1) “income” means –
(a)
a person’s gross monthly cash wage or salary; or
(b)
where a person earns money –
(i) other than in
the form of a monthly cash wage or salary, the average monthly
amount of such person’s gross earnings
during the immediately
preceding year; or
(ii)
in addition to a monthly cash wage or salary, such person’s
gross monthly cash wage or salary together with the average
monthly
amount of such person’s additional gross earnings during the
immediately preceding year; provided that remuneration
in kind
shall not be taken into account”.
[6]
It was the Respondents’ case in the court a quo that neither
PIE nor ESTA is relied upon by the Plaintiff as the cause
of action.
It appears from the reading of paragraph 13 of the summons that the
cause of action is simply based on the rei
vindicatio as set out in
the Common Law. This is however not the end of the matter, as
set out hereafter.
[7]
After filing a notice of opposition, the Respondents filed an
affidavit confirming the cause of action, stating that the Appellant
has no bona fide defence and was defending the action merely to delay
the proceedings. The Appellant thereafter filed his
opposing
affidavit.
[8]
Before dealing with the grounds of appeal it is necessary to deal
with the background to this present matter before us.
As set
out in the second paragraph 13 of Plaintiffs’ claim the
Respondents as Plaintiffs previously instituted an application
(which
I will call the first application) in terms of PIE legislation
against the appellant and other occupiers under case no.
5315/2009 at
the Potchefstroom Magistrates Court. The respondents’
application was dismissed as the court indicated
that the Plaintiff
as cited in the application does not have locus standi and that the
application in terms of “PIE”
legislation is not
applicable. It appears that this action was instituted in the
name of a trust and not in the name of the
trustees of the trust.
The court held that the respondents as a trust do not have locus
standi and that the PIE Act is not
applicable.
[9]
The Respondents subsequently, which I will call the second
application, lodged a claim for eviction against the appellant in
terms of ESTA in the Potchefstroom Magistrates Court under case no.
4088/2011. The court gave judgement in favour of the
Plaintiffs
in their capacity as trustees of the trust and the Defendant was
ordered to evict the property on or before the 30
th
November 2012. The Court’s judgement was referred to the
Land Claims Court for automatic review in terms of the said
Act.
The Land Claims Court of South Africa, under case no. LCC62R/2012
made the following order:
“
a)
The whole of the order is set aside;
b)
The case is remitted to the Magistrate;
c)
The parties are free, if they so desire, to institute proceedings in
terms of the Prevention of Illegal Eviction from Unlawful
Occupation
of Land, Act 19 of 1998 (PIE)”.
[10]
Subsequent to this judgement the Respondents preferred not to proceed
with either the first or the second applications.
A new summons
was issued, based on the rei vindicatio, which is a vindicatory
remedy or a type of mandatory interdict restoring
possession to the
lawful owner. The necessary confirming affidavit was then
lodged and filed by the Respondents where after
the Appellant filed
an affidavit in support of its opposition in terms of the provisions
of Rule 14(3)(b) of the Magistrates Court
Rules. In the
opposing affidavit the locus standi of the Respondents is not denied
as set out in this summons and therefore
deemed to be admitted.
It is also not denied that there were two previous applications and
what the outcome of each case
was as set out before.
[11]
The main issues raised in opposition to the summary judgement
application is that the Respondents (Plaintiffs) are abusing
the
court process because the order granted by the Magistrates Court was
set aside by the Land Claims Court and that the eviction
claim is res
judicata. The same ground is raised in the grounds of appeal.
In his reasons for judgement the court a
quo held that a plea of res
judicata is not a special plea in abatement. It may be raised
where the Plaintiffs’ claim
has been previously heard by any
court that has given final judgement. The court a quo also
referred to the principle that
a matter is res judicata where the
parties are the same and the cause of action is the same. In
such a situation the matter
may not be heard again. The
Magistrate found that although the Land Claims Court did set the
order aside and remitted the
case to the Magistrate, the cause of
action is not the same. The cause of action is rei vindicatio.
In its argument
the Appellant contends that a plea of res judicata
was not raised in respect of the proceedings in the Land Claims Court
but was
raised in respect of the proceedings under the PIE Act. Case
no. 5315/2009 was instituted on the basis of PIE. The court
found in the first application that the PIE Act is not applicable and
that the Trust did not have any locus standi.
[12]
The Appellant contends that the judgement in the first application as
attached as Annexure MM5 to the papers before us is binding
on the
Respondents. The judgement reads as follows:
“
Hof
bevind: Trust nie locus standi.
PIE
n.v.t”
The
rest of the judgement consists of two handwritten lines which are
illegible. None of the parties referred to what was
said in the
two lines that I cannot read. I accept that no relevance is
placed on the indecipherable part of the judgement.
[13]
Nowhere in this judgement is there any explanation as to why the
Trust as Plaintiff has no locus standi. In contrast thereto
and in
the matter now on appeal, Respondents pleaded in paragraph 13 thereof
(the second paragraph 13) that:
“
The
Plaintiffs’ application was dismissed as the court indicated
that the Plaintiff as cited in the application does not have
locus
stand and the application in terms of PIE legislation is not
applicable”.
The
Appellant’s contention is that the court a quo was bound
by the first decision that the Trust has no locus standi.
[14]
Advocate Harms appearing on behalf of the Respondents argued that the
summons in case no. 1685/2013 was issued in the name
of the Trust
only and not in the names of the individual trustees as in the
present matter. Therefore it cannot be found that the
parties are the
same. This might be correct. Unfortunately the record in
case no. 5315/2009 is not before us.
In the absence of the
relevant pleadings the Appellant’s argument cannot be
sustained. In this matter there is nothing
on record to
determine what the true position is. Paragraph 12 of the
particulars of claim in the matter under appeal reads
as follows:
“
The
Plaintiffs and more specifically the Motsoenyane Family Development
Trust is the owner of the farm Droogespruit…”
This
quotation supports the explanation given by the Respondents’
counsel.
[15]
In the absence of a clear explanation by any of the parties and the
absence of the record pertaining to the first and second
applications, the first prerequisite for a plea of res judicata
(namely that the parties are not the same) cannot be sustained.
[16]
It is further argued by the Appellant that in the first matter under
case no. 5319/2013 the Magistrates Court made a finding
that the PIE
Act is not applicable. However, in contrast thereto the Land
Claims Court, when deciding the second application
under ESTA, set
the whole order aside, and remitted the matter to Magistrate and
indicated to the Plaintiffs that they are free
to institute
proceedings in terms of the PIE Act. It is submitted that as a
decision was already given in the first application
that PIE is not
applicable, the first decision still stands and accordingly the court
should have found that the present matter
is res judicata.
[17]
I do not understand the reference to the PIE Act in the first
decision to mean that a decision was taken on this point.
It
can also be interpreted that PIE is not applicable for the simple
reason that the Plaintiff as cited lacks legal persona and
that the
Plaintiffs’ reliance on PIE is not applicable. In the
absence of the records of the previous litigation this
aspect cannot
be decided on the papers before me. Having regard to what I
have said before it is my conclusion that the defence
of res judicata
cannot succeed.
[18]
The Appellant must establish a bona fide defence to the Respondents’
claim for ejectment. See
Nair v
Chandler
, 2007(1) SA 44 (T)
.
The court a quo held that this was not done as the Defendant did not
fully disclose the nature and grounds for his defence.
[19]
In its amended heads of appeal the Appellant raised the point that
the Magistrate failed to consider compliance with the provisions
of
ESTA by the Respondents. It is clear from the particulars of
claim that the Respondents did not state whether they instituted
the
action in terms of this particular legislation. However, it
appears – notwithstanding Respondents’ counsel
contending
during argument that they do not rely on PIE or ESTA – that
reliance is placed on the Land Claims Court judgement
where it was
held that the parties are free to institute proceedings under the PIE
Act. In the present matter before us,
the City Council of
Tlokwe is cited as the 2
nd
Defendant. No order is sought against the 2
nd
Defendant. I, however, agree with the Appellant’s
counsel’s submission that the only reason why the City Council
was cited as a defendant is to make provision for PIE to be applied.
[20]
Where a person is residing on a farm and ESTA is not applicable, the
PIE Act still applies. The Appellant stated in paragraph
1 of
his affidavit opposing summary judgement that he is “
an
adult male residing at Droogespruit farm…”.
The
Respondents did not comply with the formal requirements of the PIE
Act as no notice was given in terms of section 4(2) of the
Act.
This requirement is compulsory. Summary judgement can only be
granted after proper notice was given in terms of
section 4(2) of
PIE. Appellant’s opposing affidavit is extremely vague.
Notwithstanding the vagueness of the
defence, the Appellant stated
that he is residing on the farm. The Appellant also denies that
is indebted to the Plaintiff
as set out in paragraph 6 of his
opposing affidavit. The Appellant’s denial thereof
constitutes a bona fide defence
to the Plaintiffs’ claim.
[21]
Appellant also contends that in the alternative the matter is lis
pendens and was referred back to the Magistrate by the Land
Claims
Court. There may be merit in this argument. I am not
prepared to make a decision on this point. The complete
records
of the first and second applications are not before me and it is
impossible to make a finding in this regard without perusing
the said
case records. Due to the finding I am going to make this
argument can be raised in later proceedings.
[22]
Lastly it must be mentioned that the Respondents also oppose the
appeal on the basis that the Appellant did not comply with
the
provisions of Rule 51(4), Rule 50(1) and Rule 50(4) of the Uniform
Rules of Court read with the Magistrates Court Rules. I
do not intend
dealing with these objections due to the Respondents’
concession in Court that they do not proceed with their
opposition to
the condonation applied for by the Appellant.
[23]
Accordingly the appeal should succeed and I propose that the
following order be made:
a)
The appeal is upheld with costs;
b)
The Magistrate’s order is set aside and replaced with the
following:
(i)
The Defendant is granted leave to defend;
(ii)
The Plaintiffs shall pay the Defendants costs pertaining to the
application for summary judgement.
_________________________
DE
VOS J
JUDGE
OF THE GAUTENG
DIVISION
OF THE HIGH COURT
I
agree.
_________________________
STRAUSS
AJ
ACTING
JUDGE OF THE GAUTENG
DIVISION
OF THE HIGH COURT
It
is so ordered.