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[2014] ZAGPPHC 90
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Thaba Chweu Local Municipality v Mashile and Others (5475S/2011) [2014] ZAGPPHC 90 (16 January 2014)
REPUBLIC OF SOUTH
AFRICA
NORTH GAUTENG
HIGH COURT PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 5475S/2011
DATE:
16 JANUARY 2014
In the matter
between:
THABA CHWEU LOCAL
MUNICIPALITY
......................................
APPLICANT
AND
MIKE
MASHILE
...............................................................
FIRST
RESPONDENT
THE UNIDENTIFIED
INTENDED
.............................
SECOND
RESPONDENT
OCCUPIERS
RESPONDENT
THE MINISTER OF
POLICE
..........................................
THIRD
RESPONDENT
JUDGMENT
BAQWA J
[1] This is the
return day of an interim order which was granted by this court on 31
December 2013.
[2] The order was an
injunction upon the third respondent to show cause why they should
not be compelled to act on the annual changes
laid by the applicant
and to take all steps reasonably necessary to prevent the invasion of
land taking place on applicants property
known as "remaining
extent portion 39 of Farm 31, Townlands of Leydenburg, Mpumalanga
(the property).
[3] it was further,
an injunction upon the first respondent from allocating and or
demarcating land to any person on the properties
and from receiving
payment in that regard.
[4] The interim
order prohibited anyone but the lawful owner from demarcating land
for occupation or from entering the property.
[5] According to
applicant the application was brought subsequent to an invasion of
the property by first and second respondents
which took place during
the month of December 2013.
[6] The respondents
do not deny that the property belongs to the applicant which by
necessary inference makes the occupation unlawful.
[7] The respondents
however claim that the occupation of the property took place during
April 2013 and not in December of that year.
On that basis they
submit that the application is not urgent.
[8] In support of
this allegation respondents have annexed correspondence between
themselves and the applicant and minutes of a
meeting which first and
second respondent belong.
[9] Regarding
urgency applicant submits that it cannot seek redress in due course
without suffering irreparable harm.
Applicant further
submits that:
9.1. All attempts to
salvage the situation has proved fruitless including an attempt to
lay a charge for trespass with members of
SAPS.
9.2. Stands are
being allocated to members of the community by individuals who have
no authority, permission, or legal basis to
do so.
9.3. Applicant
further submits that should the occupation be allowed, it will have a
detrimental impact on the applicant as it is
not in accordance with
the approved spatial development framework and Town Planning Scheme.
[10] In resolving
the contradictory statements between the parties regarding urgency
and more particularly the period when occupation
took place, I have
had to make inference to detail including annexures to the papers
before me.
[11] Annexure MM3
attached to respondent’s papers is a letter from the
respondents dated 8 July 2013 requesting a response
on or before 10
July 2013 at 13h00 “’or else the community is going to
take the place themselves.”
[12] A logical
inference from the sentence quoted is that respondents could not
threaten to take a property they were already in
occupation of.
[14] Annexure MM5 is
a copy of minutes of a meeting by respondent’s association held
on 14 October 2013 wherein it is recorded
that the community resolved
to stop invading the area and to request alternative land.
Similarly
respondents could not resolve to stop invading the property if they
were already in occupation thereof.
[15] Upon weighing
these contradictions I come to the conclusion that the credibility of
respondent’s version is put in serious
doubt.
[15] Moreover,
respondents do not dispute that applicant laid a charge with the SAPS
Lydenburg on 27 December 2013. This action
by applicant objectively
corroborates applicant’s version.
The law
[16] A similar
matter was considered in the case of Port Elizabeth Municipality v
Various Occupiers 2005(1) SA 217(CC). In that
case the law was
enunciated as
follows:
'In terms of s6 of
the Prevention of Illegal Eviction from Unlawful Occupation of Land
Act 19 of 1998 (PIE), the applicant municipality
secured an order for
the eviction of the respondents some 68 unlawful occupiers of land
within its area of jurisdiction in the
High Court. That order was set
aside on appeal to the Supreme Court of Appeal. The land in question
was vacant land and the occupiers
had been on the land for periods
ranging between two and eight years. Prior to the grant of the order,
they indicated to the municipality
that they were prepared to vacate
the land if it provided them with suitable alternative accommodation.
They had not applied for
housing under the municipality’s
housing development programme. In the present application, the
municipality sought leave
to appeal against the decision of the SCA
and have the eviction order restored. It also sought a ruling from
the Court to the effect
that, in seeking an eviction order, it was
not constitutionally obliged to provide the occupiers with
alternative accommodation
or land.
Held, that under s 6
of PIE the Court exercised a discretion to grant an eviction order if
it were just equitable to do so. In making
that decision the Court
had to take into account ‘all relevant circumstances. ’
(Paragraph[25] at 232D.)
Held, further, that
the requirement in s 6(3) that the Court had to take into
consideration the availability of suitable alternative
accommodation
was not an inflexible requirement. There was no unqualified
constitutional duty on local authorities to ensure that
an eviction
was not executed unless alternative accommodation or land was made
available. Courts should generally be reluctant,
however, to grant an
eviction order against relatively settled occupiers unless a
reasonable alternative was available, even if
only as an interim
measure pending ultimate access to housing in the local authority’s
formal housing programme. (Paragraph
[28] at 233G-H.)
Held, further, that
the existence of a formal housing programme was one of the
considerations favouring a determination that the
proposed eviction
would be just and equitable. (Paragraph [29] at 234D-E.)
[17] In casu
applicant’s counsel submitted that respondents’ cannot be
said to be "settled occupiers” having
invaded the property
in December 2013 (thereby being occupiers for a period less than two
months). I accept the said submission.
[18] In the result:
I have come to the
conclusion that the rule nisi granted on 31 December 2013 be made
final.
It is so order
BAQV)/A (JUDGE OF
THE HIGH COURT)