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[2015] ZAFSHC 162
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Potential Unknown Occupiers of Erf, Mantsopa Municipality and Another v Mantsopa Local Municipality (1381/2015) [2015] ZAFSHC 162 (28 August 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 1381/2015
In the
Appeal of:
POTENTIAL UNKNOWN
OCCUPIERS OF ERF [.......],
[.......],
MANTSOPA
MUNICIPALITY
1
st
Applicant
POTENTIAL UNKNOWN
OCCUPIERS OF PORTION
135 OF FARM “DORP
GRONDEN VAN LADYBRAND
NR.
451”MANYATSENG, MANTSOPA MUNICIPALITY
2
nd
Applicant
and
MANTSOPA
LOCAL MUNICIPALITY
Respondent
HEARD
ON:
25
JUNE 2015
DELIVERED
ON:
28 AUGUST 2015
JUDGMENT
MOCUMIE,
J
[1] On
5 June 2014, Mantsopa Local Municipality (the municipality) sought an
order evicting ‘potential unknown occupiers’
of Erf
[.......], Lady Brand and Portion 135 of farm Dorp Gronden, Lady
Brand, within its area of jurisdiction, under case no 525/2014.
On
the same day Van Zyl, J granted an order which reads:
‘
The notice
(“the notice”) in terms of section 5(2) of the Prevention
of Illegal Evictions from and Unlawful Occupation
of Land Act No 19
of 1998, attached hereto marked as Annexure “X”, is
authorised.
[2] It
is not clear on the applicants’ founding affidavit what
happened between 23 February 2014 and the date on which the
matter
was enrolled, 5 June 2014. But, on 5 June 2014, the so called
‘potential unknown occupiers’, did not make any
appearance. The
rule
nisi
was confirmed in their absence. On 14 October 2014 the Sheriff served
the final order on Mr Samuel Sello Mohata (‘Mohata’),
who
in a later affidavit is described as a resident of one of the ervens
in dispute, Portion 135 of farm Dorp Gronden.
[3] On
10 March 2015 under case no. 1144/2015, the applicants, led and
represented by Mohata, sought an order which prohibited the
municipality from evicting them; pending an application for
rescission of the judgment and order granted in favour of the
municipality
under case 525/2014. This is the application for
rescission of that judgment and order.
[4]
The applicants were initially legally represented by Mr Van Eeden of
Van Eeden Attorneys, who has since withdrawn from the matter.
On 4 June 2015, Mohata and a group of people who purported to be the
unknown unlawful occupiers of the ervens in dispute were present
in
court. Mohata, with permission of the court addressed the court and
confirmed that Mr Van Eeden was no longer representing the
group. The
group comprising mostly of indigent people had struggled to put funds
together to instruct another attorney but ultimately
managed to give
instructions to Mr Tshangana of Tshangana Attorneys who was however
not available on the day. The matter stood
down until the attorney
concerned, came to court. He informed the court that he was given
instructions only that day. Thus he was
not in a position to adress
the court. He sought a postponement in order to peruse the papers and
consider whether to argue the
case himself or brief counsel.
The matter was postponed on that basis to 25 June 2015.
[5] In
the Heads of Argument, Mr Manye, on behalf of the municipality raised
two points
in
limine
.
One, the identity of the unknown unlawful occupiers. He made
the point that a person(s) cannot institute action or
defend the
matter as an agent on behalf of his or her principal without the
necessary authorisation or Power of Attorney.
And that a group
of people identified as potential unknown occupiers which did not
have any Constitution and was not regulated
by any law did not have
capacity to sue or be sued; either in its own name or through the
unknown and unidentified office bearers.
[5]
The second, point
in
limine
is that the Founding Affidavit contained hearsay evidence of Mr Van
Eeden, the applicants’ erstwhile attorney, who although
the
deponent to the Founding Affidavit was not one of the unlawful
occupiers; had no direct interest in the matter; and thus had
no
personal knowledge of the facts of the matter. Thus the Founding
Affidavit did not disclose the cause of action relied on, so
Mr Manye
submitted. The applicant did not apply for the admission of such
hearsay evidence in the interests of justice. Their case
was
compounded further by the fact that the same Mr Van Eeden had
subsequently withdrawn from the matter.
[6]
The first point
in
limine
must fail on the simple basis that the municipality on its own case
obtained the court order under case number 525/2014 against
the same
unidentified/unknown potential unlawful occupiers. The interim
order was even served on someone by the name or surname
of Damane but
it’s not clear whether that person occupied the land in
dispute. In any event, even after the municipality
identified the
unlawful occupiers, as per the communication attached to the papers
between the Municipal manager and the community
at various meetings,
the municipality nonetheless proceeded on the same papers with the
respondents cited as ‘potential unlawful
occupiers’. This
argument is simply disingenuous and cannot hold water. In any event
there is no such person as ‘a
potential unlawful occupier’
in terms of PIE.
[7] In
respect of the second point
in
limine,
the original Founding Affidavit was deposed to by a certain Mr Van
Eeden of Van Eeden Attorneys (Van Eeden). What he deposed to
was
relayed to him by the unlawful occupiers. The confirmatory affidavits
filed by some of them did not confirm the content of
the founding
affidavit to be correct. Mohata who subsequently deposed to another
founding affidavit did not have
locus
standi
because
in
the
same founding affidavit, Mohata identified himself as a resident of
Dorp Gronden, one of the ervens in dispute. Not as an interested
or
affected party in the matter. He alleged that he was mandated to
speak on behalf of others, who have filed confirmatory affidavits
to
support what he contended to be the true facts of this matter. I am
persuaded to agree with Mr Manye on this one because it
is correct
that there is no Power of Attorney appended to the papers or even
referred to by Mohata in his affidavit. Mr Thompson
on behalf of the
applicants contended that it was not necessary for Mohata as a
resident of Dorp Gronden over 13 years to specify
his interest in
these proceedings. It is trite that not each and every unlawful
occupier had the
locus
standi
to do so. But those whose interests were affected. I am in agreement
with Mr Manye that the affidavit was clearly filed in an attempt
to
adress the point
in
limine
raised by the municipality that Van Eeden did not have personal
knowledge of the facts of the matter. This affidavit is defective.
Mohata cannot enter the fray at this late stage and in the fashion
that he was introduced into the proceedings. The second point
in
limine
must therefore succeed.
[8]
Having said that does not dispose of the matter finally. On the
merits, the municipality contended that the notice in terms
of s5 of
the Prevention of Illegal Evictions Act (PIE) was properly obtained
and served on the applicants. The land belonged to
the municipality
and the applicants had no legal defence. The vexed question remains,
regardless of whether there was proper service
initiating eviction
proceedings, was the municipality supposed to embark upon on
processes under PIE in the circumstances of this
case? Flowing from
that question were the applicants ‘unlawful occupiers’ as
defined in PIE?
[9]
Section 4 of PIE deals with the eviction of unlawful occupiers. In
Ekurhuleni
Metropolitan and Another v Various Occupiers ,Eden Park Extension
5
[1]
,
the Supreme court of Appeal explained the relationship between s4(7)
and 4(8) as follows:
‘
The first
enquiry is that under s4(7) ,the court must determine whether it is
just and equitable to order eviction having considered
all relevant
circumstances. Amongst those circumstances the availability of
alternative land and the rights and needs of people
falling under
specific vulnerable groups are singled out for consideration. Under
s4(8) ,the court is obliged to order eviction
if the requirements of
the section have been complied and no valid defence is advanced to an
eviction.
The Court further held:
‘
The
words ‘just and equitable’ has been explained in case law
as relating to the interests of not only to the
persons who had
occupied the land illegally, but to the land owner as well.’
[10]
In
Port
Elizabeth
Municipality
v
Various
Occupiers
,
[2]
Albie
Sachs writing for the majority, stated, on the role of the courts
when dealing with applications under PIE:
‘
(T) he
Constitution
imposes
new
obligations
on
the
courts
concerning
rights
relating
to
property
not
previously
recognised by the
common law. It counterposes to the normal ownership rights of
possession, use and occupation, a new and equally
relevant right not
arbitrarily to be deprived of a home. The expectations that
ordinarily go with title could clash head-on with
the genuine despair
of people in dire need of accommodation. The judicial function in
these circumstances is not to establish a
hierarchical arrangement
between different interests involved, privileging in an abstract and
mechanical way the rights of ownership
over the right not to be
dispossessed of a home, or
vice
versa
.
Rather,
it
is to balance out and reconcile the opposed claims in as just a
manner as possible, taking account of all the interests involved
and
the specific factors relevant in each particular case.
’
[3]
(My
own emphasis)
[11]
Section
26 of the Constitution of the Republic of South Africa
[4]
provides
every individual with the right to access to adequate housing and
states that
‘
no
one
may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances. No legislation may permit arbitrary evictions.’
[5]
[12]
It is now trite that PIE has its roots, in the provisions of section
26
of
the Constitution. Section 4(7) of PIE provides:
‘
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 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 landowner
for the relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and
households headed by women.’
(My
own emphasis)
[13]
An unlawful occupier is defined in PIE, as
‘
a
person who occupies land without the express or tacit consent of the
owner or person in charge, or without any other right in
law to
occupy such land, excluding a person who is an occupier in terms of
the Extension of Security of Tenure Act,1997, and excluding
a person
whose informal right to land, but for the provisions of this Act,
would be protected by the provisions of the Interim
Protection of
Informal Land Rights Act,1996 (Act No. 31 of 1996).
’
[6]
[14]
The case of the municipality is that at the time it approached this
court for an interim interdict, there were no occupiers
on the land
that is why it cited the applicants as ‘potential unlawful land
occupiers’. However by the time the final
order was granted and
served by the Sherriff, the applicants had then moved onto the land
unlawfully. Several meetings by the Municipal
Manager and the
residents of the neighbouring land did not yield results. i.e people
who occupied the portions of the ervens in
issue refused to move
unless and until provided with alternative accommodation.
[15]
The provisions of PIE are relatively simple and clear as case law
indicate. A land owner seeking to evict an unlawful occupier
from his
or her land must prove (a) ownership of the land in question; (b)
that the person occupying the land does so unlawfully
;(c) that the
procedural provisions of PIE have been complied with; and that on
consideration of all relevant circumstances an
eviction order is just
and equitable. These requirements were set out by Maya JA writing for
the majority in
Wormald
No and Others v Kambule
[7]
.
[16]
It is now trite but bears repeat that PIE must be adhered to by any
landowner, ie the registered owner of land, including an
organ of
State, seeking to evict a person who occupies his or her land and
utilises such land to erect any hut, shack, tent or
similar structure
or any other form of temporary or permanent dwelling or shelter
without the express or tacit consent of such
landowner.
[17]
Applying these requirements to the facts of this case it is clear
that they do not fall within the ambit of PIE for the sole
reason
that there were no unlawful occupiers occupying the ervens in issue
unlawfully at the time when the proceedings were initiated
as is
typical in cases of this nature.
[8]
[18]
The watershed mark of the applicants’ case is this. The final
court order confirming the
rule
nisi
together with a copy of the interim interdict granted on 7 February
2014 under case 525/2014 and a copy of the draft order marked
X
annexed to the Founding Affidavit was only served on the applicants
by the Sherriff on 20 February 2015 almost a year later after
this
court granted the final eviction order. What compounded the case for
the applicant is that annexure X referred to in the draft
order was
not attached. The documents served on the applicants patently did not
inform them of what steps to take upon receipt
of the interim order
and by what date.ie in the event they wanted to oppose the
application as indicated in annexure X. The municipality
did not
explain why this important annexure was never served or attached to
the order. But instead it chose to maintain that annexure
X was
properly served contrary to all indications that it was not.
[19]
If annexure A was served, which is impossible, the question would be:
on whom was it served? According to the Sherriff’s
return of
service, the interim order with annexure A was served on 12 February
2014 worded
‘
AFFIX
FRONT DOOR’ of the residence of POTENTIAL UNKNOWN
OCCUPIERS OF ERF [.......],EXTENSION 5,MANTSOPA MUNICIPALITY,1
st
defendant, at [.......] LADYBRAND
,
which is kept locked and thus prevents alternative service. The
second return service was effected by the same Sherriff worded
‘
AFFIX
FRONT DOOR of the RESIDENCE of POTENTIAL UNKNOWN OCCUPIERS,2
nd
defendant, at PORTION 135 OF FARM ‘DORP GRONDEN VAN LADYBRAND
NR.451’’,MANYATSENG,MANTSOPA MUNICIPALITY, which
is kept
locked and thus prevents alternative service.’
Clearly
there is no mention of anyone who received the processes. There is no
reason proffered by the municipality why the simple
methods of
service provided for in the rules of this court and in the order,
were not used to ensure that these processes came
to the attention of
the unlawful occupiers including Mohata.
[20]
It is patently clear and it’s the case for the municipality
that there were no unlawful occupiers when the interim order
was
granted. It follows that the interim order was obtained without
the knowledge of any party occupying the land or about
to occupy the
land including the applicants because as soon as some of the
‘unlawful occupiers’ came to know about
it two days
before the final order was granted, they sought legal advice and
immediately approached this court for a rescission
of that order.
[21]
From the above it is clear that the interim as well as the final
orders were granted on the wrong assumption that the applicants
fell
within the definition of ‘unlawful occupiers’ in PIE.
Thus the order(s) were erroneously granted. On this basis
alone, this
application ought not have been entertained or granted as it simply
did not fall under s4 (7) or s4 (8) of PIE. Apart
from that, there is
ample evidence before this court that indicate that the service
formalities were not complied with ie the interim
order was not
served on any interested party, let alone the applicants. It would in
any event not be just and equitable to
evict the unlawful occupiers
from the ervens before the municipality has complied with procedural
steps set out in PIE read with
s26 of the Constitution. That
being the case, the application for rescission of the judgment and
order under case no. 525/2014
ought to succeed.
This
is, however, not the end of the road for the municipality. The
municipality can now, if it so deem it necessary, approach the
court
but in strict compliance with the requirements of PIE and guidelines
set out in
Wormald
above.
[22]
In the result I grant the following order.
ORDER
1.
The
application is upheld with costs.
2.
The
judgment and order under case 525/2014 is rescinded.
3.
The
applicants to pay the wasted costs of 4 June 2015.
_______________
B.C. MOCUMIE, J
On behalf of the
applicants:
Adv Thompson
Instructed
by:
Tshangana
Attorneys
BLOEMFONTEIN
On behalf of the
respondent:
Adv L Manye
Instructed
by:
Morobane
Incorporated
BLOEMFONTEIN
/PC
[1]
Ekurhuleni
Metropolitan and Another v Various Occupiers ,Eden Park Extension 5
[2014]
1 All SA 386 (SCA)
[2]
Port
Elizabeth
Municipality
v
Various
Occupiers
2004
(12) BCLR 1268 (2005 (1) SA 217) (CC)
[3]
Footnote 2 above.
[4]
Act 106 of 1996.
[5]
See Government of the Republic of South Africa and Others v
Grootboom and Others
2001 (1) SA 46
(CC) para [82] and [83] also
reported at 2000 (11) BCLR 1169 (CC).
[6]
Section 1 of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998.
[7]
Wormald No and Others v Kambule 2006 (3) SA 562 (SCA)
[8]
Compare with
Residents
of Joe Slovo Community v Thubelisha Homes
2010(3)
SA 454 (CC);
Ekurhuleni
Metropolitan
Municipality and another v Various Occupiers, Eden Park Extension 5
[2014]
1 All SA
386
(SCA);
Blue
Properties v Occupiers of Saratoga Avenue
[2008] ZAGPHC 275
;
2009
(1) SA 470
(W);
Port
Elizabeth
Municipality
v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC);
Johannesburg
Housing Corporation (Pty)
Ltd
v Unlawful Occupiers of the Newtown Urban Village
2013
(1) SA 583
(GSJ).