About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 367
|
|
Hadibeng Local Municipality v Unlawful Occupiers of Portions 33 And 37 of the Farm 448 Bokfontein and Others (27481/15) [2015] ZAGPPHC 367 (5 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO :
27481/15
DATE:
05 JUNE 2015
In
the matter between:
HADIBENG
LOCAL
MUNICIPALITY
...........................................................................
APPLICANT
And
THE
UNLAWFUL OCCUPIERS OF
PORTIONS
...................................................
RESPONDENTS
33,
AND 37 OF THE FARM 448 BOKFONTEIN
JUDGMENT
HEARD
ON: 28 MAY 2015
JUDGMENT
ON 05 JUNE 2015
[1]
The applicant is the lawful owner of
portions 33, 35 and 37 of the farm 448, Bokfontein (“the
land”). The respondents
occupied the site in question on 6 May
2015.
The applicant became aware that a
group of people were illegally erecting structures on the land on 10
May
2015.
The applicant immediately
conducted a site inspection and established that about 150 structures
were erected on the land. A notice
calling upon the respondents to
evacuate the land with immediate effect was issued and served on the
respondents. The notice informed
the respondents that if the land is
not evacuated as requested in the notice legal proceedings will be
instituted against them.
[2]
The respondents failed to heed the notice and on 13 May 2015 the
applicant served them with this application. The application
stated
that they appear in court the following day. They were in fact given
less than 48 hours’ notice to file their opposing
papers. The
matter was set down for hearing on 14 May 2015. The matter came
before Bofilatos AJ who raised a concern about the
service of the
application. Bofilatos AJ postponed the matter
sine
die
to afford the respondents an opportunity to file their
answering affidavit. The respondents were ordered to file their
answering
affidavit on 18 May 2015 and the applicant to reply thereto
by 20 May 2015. By 18 May 2015 the respondents had not filed their
answering affidavit.
[3]
The matter was re-enrolled for hearing in the urgent court and came
before Mavundla J on 21 May 2015. Mavundla J made a ruling
that the
matter was urgent and granted the applicant relief in terms of prayer
1 of its notice of motion in respect of the urgency.
Having ruled as
such the judge granted the respondents a further indulgence to file
their answering affidavit on 25 May 2015 and
the applicant to reply
thereto by 27 May 2015. When the matter appeared before me the
parties, having complied with the order of
Mavundla J were ready to
argue.
[4]
It
is
not
in
dispute that the land is earmarked
for the relocation of the Orange Farm informal settlement in terms of
the court order granted
on 6 October
2014.
The applicant is still in the process of implementing other
requirements in terms of the court order and will not be in a
position
to finalise all the requirements in terms of the order if
the respondents remain on the land.
[5]
It is common course that the application
for the eviction of the respondents was issued in terms of the common
law and the applicant
sought an urgent final eviction order. Since
the application was ruled urgent by Mavundla J, what remained for
determination would
have been whether the applicant has made out a
case for a final interdict restraining the respondent from occupying,
entering and
erecting any structure of whatsoever nature on the land.
[6]
However, the respondents in their
answering papers raised the issue of the non- compliance by the
applicant of the requirements
of the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (“the
PIE”). The argument
is that an order for the eviction of the
respondents from the land can be granted only in terms of s 4
(6)
and 4 (8) of PIE, read together with s 6
(3) and 6 (4) of PIE since the eviction is at the instance of an
organ of state. It was
further contented that the provisions of PIE
are applicable in the circumstances of this matter.
[7]
In the founding affidavit it was the
applicant’s case that the respondents occupied the land without
its permission, but since
it was not being used as a dwelling neither
the
Extension of Security of Tenure Act 62 of
1997
nor PIE found application in this matter. However, in reply to the
respondents’ answering affidavit the applicant concedes
that
PIE is applicable. It is, therefore, common cause that the provisions
of PIE are applicable to the respondents’ eviction
from the
land.
[8]
Where the eviction tabes place at the
instance of an organ of state in circumstances to which PIE is
applicable the court can only
order eviction if it is satisfied that
it is just and equitable to do so after having regard to all the
relevant factors including
those set out in
s 6
(3) of PIE, namely
the circumstances in which the occupiers came to occupy the land and
erect structures thereon; the period they
have resided on the land
and the availability of suitable alternative accommodation or land.
[9]
In terms of
s 6
(6) of PIE, the
procedures set in
s 4
apply, with the necessary changes, to any
proceedings in terms of subsection
(1).
[10]
It is therefore apt to quote the
applicable provision of
s 4
which read as follows:
“
4.
Eviction of unlawful occupiers:
(1)
Notwithstanding anything to the contrary
contained in any law or the common law, the provisions of this
section apply to proceedings
by an owner or person in charge of land
for the eviction of an unlawful occupier.
(2)
At least 14 days before the hearing of
the proceedings contemplated in subsection
(1)
, the court must serve written and
effective notice of the proceedings on the unlawful occupier and the
municipality having jurisdiction.
(3)
Subject to the provisions of subsection
(2), the procedure for the serving of notices and filing of papers is
as prescribed by the
rules of the court in question.
(4)
Subject to the provisions of subsection
(2), 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:
Provided that the
court must consider the rights of the unlawful
occupier to receive adequate notice and to defend the case.
(5)
The notice of proceedings contemplated
in subsection (2) must—
(a)
state that proceedings are being
instituted in terms of subsection (1) for an order for the eviction
of the unlawful occupier;
(3)
indicate on what date and at what time
the court will hear the proceedings;
(3
set out the grounds for the proposed eviction; and
(a)
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.
(6)
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)
If an unlawful occupier has occupied the
land in question for more 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, except where
the land is sold in a sale of execution pursuant to a mortgage,
whether land has
been made available or can reasonably be made
available by a municipality or other organ of state or another land
owner for the
relocation of the unlawful occupier, and including the
rights and needs of the elderly, children, disabled persons and
households
headed by women.
(8)
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
).
(9)
In determining a just and equitable date contemplated in subsection
(8), 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.
(to)
The court which orders the eviction of
any person in terms of this section may make an order for the
demolition and removal of the
buildings or structures that were
occupied by such person on the land in question.
(11)
A court may, at the request of the
sheriff, authorise any person to assist the sheriff to carry out an
order for eviction, demolition
or removal subject to conditions
determined by the court: Provided that the sheriff must at all times
be present during such eviction,
demolition or removal.
(12)
Any order for the eviction of an
unlawful occupier or for the demolition or removal of buildings or
structures in terms of this
section is subject to the conditions
deemed reasonable by the court, and the court may, on good cause
shown, vary any condition
for an eviction order.”
[11]
The respondents contends that since the
applicant in its founding papers seeks a final order on an urgent
basis and having conceded
that PIE applies to the eviction, the order
it, therefore, wants is in terms of
s 4
(6) of PIE and as such the
applicant was obliged to comply with
s 4
in seeking the respondents’
eviction from the land. The argument is that since the applicant is
seeking, as it does, a final
eviction order, it was obliged in terms
of
s 4
(2) of PIE to at least 14 days before the hearing of the
proceedings contemplated in subsection
(1),
serve a written and effective notice of the proceedings on the
respondents. Failure to comply with
s 4
(2), according to the
respondents, is that they have been unable, in the light of the
expedited time periods, to place before the
court the personal
circumstances of all the occupiers. They were only able to obtain the
information of only 34 households. The
court is in these
circumstances unable to formulate a view based on the relevant
considerations whether it is just and equitable
to evict the
respondents, which consideration includes the rights and needs of the
elderly, children, disabled persons and households
headed by women,
so the argument goes.
[12]
My view is that the argument by the
respondents that they should have been given fourteen days’
notice, as required by
s 4
of PIE, within which to respond to the
applicants’ founding papers is not correct. The applicants
approached the court on
urgency and were allowed by Mavundla J not to
comply with the applicable time periods.
[13]
The proper procedure would have been for
the court to grant an interim order in terms of
s 5
(1) of PIE,
however, because the respondents appeared in court on the date set
for the hearing, there was no need to grant the
interim relief. The
respondents were afforded time, which in my opinion is reasonable,
within which to file their answering affidavit
and which was enough
to comply with
s 4
(6) of PIE. The circumstances of this case are
such that the applicants had to act swiftly to avoid proliferation of
the unlawful
occupation of the land.
[14]
In my opinion Mavundla J in condoning
the non-compliance with time periods truncated the procedure to be
followed by the applicants
in regard to urgency. The issue of urgency
has as a result fallen away.
Section 5
of PIE cannot, therefore, be
decided afresh.
[15]
Even
if the issuing of an interim order would have been peremptory in
terms of
s 5
(1) of PIE, the applicants would be entitled to make use
of the provisions of
s 4
(6) in that the respondents had occupied the
land for less than six months at the time the proceedings were
initiated. In terms
of
s 4
(6) of PIE where a defendant has been in
occupation of the land for less than six months, the 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.
[1]
[16]
When all the relevant circumstances
placed before me are considered, I am satisfied that it is just and
equitable that an eviction
order be granted against the respondents.
From the reading of the respondents’ papers I could not make
out any concrete facts
relating to the rights and needs of the
vulnerable groups, namely, the elderly, children, disabled persons
and households managed
by women, as required in terms of
s 4
(6). As
argued by the applicant’s counsel the respondents’
poverty and homelessness cannot be overemphasized over that
of the
people for whom the land has been earmarked. I also took into account
that the applicant has stated in its unchallenged
evidence that it
will not be able to provide alternative accommodation to the
respondents due the unavailability of alternative
land and budget.
[17]
The applicants’ submission, which
is uncontested, is that at the time they instituted the proceedings
there were about 150
uninhibited structures on the land. By the time
the proceedings were instituted the applicant had already informed
the respondents
that they were in unlawful occupation of the land. It
would seem that despite that notice the respondents proceeded to
inhibit
the land and more people moved in. The application as such
was aimed at prohibiting this proliferation.
[18]
The respondents have conceded in their
answering affidavit that they do not have a defence to the
applicant’s claim. They
agree that they are in unlawful
occupation of the land in that they were not given consent to occupy
the land. If the requirements
of
s 4
are satisfied and no valid
defence to an eviction order has been raised, the court ‘must’,
in terms of
s 4
(8), grant an eviction order.
[19]
The respondents are aggrieved that they
have not been allocated the land even though the applicant is aware
of their dire need for
land and accommodation. It was argued on their
behalf that they have over a period of years taken their grievances
for better services
and overcrowding where they were staying with the
applicant and the applicant has done nothing about it. They have
unlawfully occupied
the land in question out of desperation and
frustration. The applicant should have consulted with them prior to
the court order
awarding the land to the people from Orange Farm was
granted, which they failed to do. They further aver that they will be
left
homeless should they be evicted from the land thereby making
their eviction unjust and inequitable.
[20]
There
may be justification for these grievances, but, they do not, in my
view, constitute a defence against the applicant’s
claim. It is
not for this court to consider the veracity or otherwise of the
respondents’ grievances and in any way they
are aware of the
court order granted against the applicant in respect of the land and
should have, if they wanted, taken the order
on appeal or review. For
as long as the order has not been set
set
aside on review or on appeal, it remains binding on the applicants
and must be given effect to. It is also not the duty of this
court to
order consultation between the applicant and any of the communities
within its jurisdiction. There are processes and procedures
set out
for such consultations which must be followed by the respondents and
not take the law into their own hands.
[2]
[21]
The
effect of PIE has been held by our courts as not to expropriate the
landowner and that PIE cannot be used to expropriate someone
indirectly. Much as PIE counterpoises a right not arbitrarily to be
deprived of a home, the landowner, on the other hand, retains
the
protection against arbitrary deprivation of property under s 25 of
the Constitution. PIE serves merely to delay or suspend
the exercise
of the landowner’s full proprietary rights until a
determination has been made whether it is just and equitable
to evict
the unlawful occupier and under what conditions, if any.
[3]
[22]
In the circumstances the relief sought
by the applicant to evict the respondents from portions 33, 35 and 37
of the farm 448 Bokfontein
should be granted.
[23]
Section 4 (8) of PIE enjoins me to determine a just and equitable
date on which the respondents 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 so
determined.
[24]
My view is that a just and equitable
date for the respondents to vacate the land should be as soon as is
reasonably possible. The
respondents have only just moved into the
land. The first occupation happened on 6 May
2015
and most of the occupation took place after that date. From reading
the respondents papers indications are that the respondents
are
steadily and on a constant basis occupying the land. There more time
it takes for the respondents to vacate the land the more
chances
there will be for other occupants to move in and the more difficult
it will be to remove them. I am therefore of the opinion
that it is
just and equitable that the respondents vacate the land within 15
days from date of this order and that they be evicted
by the sheriff
on 30 June
2015
should they fail to
comply with this order.
[25]
I, in the premises, make the following
order:
1.
The application is granted with costs.
2.
The respondents are ordered to vacate
portion 33, 35 and 37 of farm 448 Bokfontein within 15 days from date
of this order, failing
which the Sheriff for the district of Brits is
authorized to remove the respondents and all persons under their
control, together
with their possessions from the said land on 30
June
2015.
E.
M. KUBUSHI
JUDGE
OP THE HIGH COURT
Appearances:
On
behalf of the applicant: Adv. S Magaqa
Instructed
by:
COLLIN
NCIKI ATTORNEY!
191
Bekker Road Midrand,
JOHANNESBURG
On
behalf of the respondent: Adv. Tulk
Instructed by:
THE
LEGAL RESOURCES CENTRE
15
Floor Bramfischer Towers
Marshall
Town,
JOHANNESBURG
[1]
See Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 234G.
[2]
See Minister of Local Government and Housing & Others v Various
Unlawful Occupiers of Houses situated in Precincts 4 and
6, Delft
Symphony & Others (108/2008) [2008] ZACGH (6 February 2008).
[3]
See Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 229E G; Wormald NO v Kambule
2006 (3) SA 562
(SCA) at 569F -
G.