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2012
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[2012] ZAKZDHC 66
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Mahogany Ridge 2 Property Owners Association v Unlawful Occupiers of Lot 13113 Pinetown and Others (2673/2011) [2012] ZAKZDHC 66; [2013] 2 All SA 236 (KZD) (7 November 2012)
REPORTABLE
IN THE KWAZULU-NATAL HIGH
COURT, DURBAN REPUBLIC OF SOUTH AFRICA
CASE NO: 2673/2011
In the matter between;
MAHOGANY RIDGE 2 PROPERTY
OWNERS ASSOCIATION
(An Association incorporated
under Section 21 of the
Company's
Act, 1973)
...................................................................................
Applicant
and
THE UNLAWFUL OCCUPIERS OF LOT
13113
PINETOWN
.......................................................................................
First
Respondent
ETHEKWINI
MUNICIPALITY
.................................................................
Second
Respondent
MR MTSHALI
..............................................................................................
Third
Respondent
BONGI
KHUMALO
...................................................................................
Fourth
Respondent
NATHI
NDLULI
............................................................................................
Fifth
Respondent
SEMZO
WANDA
.........................................................................................
Sixth
Respondent
DOUGLAS
KHUMALO
...........................................................................
Seventh
Respondent
JUDGMENT
SISHI J
Introduction
[1] The
applicant an association incorporated under Section 21 Company's Act
of 1973
1
,
seeks an order for the eviction of Unlawful Occupiers from land
owned by it, in terms of Section 4 of the Prevention of Illegal
Evictions from and Unlawful Occupation of Land Act 19, of 1998
('PIE').
[2] The group of occupiers are
collectively described as the Unlawful Occupiers of lot 13113
Pinetown, the first respondent herein.
The various Unlawful
Occupiers are represented through the first respondent. They are
opposing the eviction application.
Background
[3} The applicant is the owner
of the property in terms of a consolidated title deed which reflects
that applicant is the owner
of the property as well as other erven
held under that title deed which is attached to the founding
affidavit.
[4] During
the 1990's, an Industrial township known as Mahogany Ridge 2
Industrial Park was established. Not all the land which
constituted
part of the township was sold and developed by individual property
owners, instead, some of the land was transferred
to the applicant.
Part of the land held by the applicant constitutes the property
which is the subject matter of the present
application. According to
the applicant, it is intended to be a conservancy
area, ft has
never been planned for development and therefore, to use common
parlance, is a 'green lung
1
within the
natural township itself. The Mahogany Ridge 2 Industrial Park abuts
the residential township called, the 'Emaus'.
[5] It is apparent from the
title deed which is annexed to the founding affidavit that the
property which the applicant owns was
transferred to it in 1996 for
a consideration of R300 being the declared value of the property. It
is apparent from the a photograph
filed by the second respondent
that the identified land is very large and would ordinarily have a
commercial value far in excess
of R300.00.
[6] The
title deed imposes certain limitations on structures that can
lawfully be erected on the property.
2
'Except with the consent of
the Administrator, no building or structure whatsoever other than a
fence, hedge or wall, which does
not rise higher that 1.5 metres
above the surface of the land on which it stands shall be erected on
the land within a distance
of 1.5 metres from the Road Reserve
Boundary of main road 85 and 7.5 metres measured from the Road
Reserve Boundary of main road
468'
[7] This condition means that
the applicant may not use the property for any commercial purposes
whatsoever, until such time that
the condition has been removed.
Onus
of proof
[8] The
applicant bears the onus of proving that the eviction order would be
just and equitable. The applicant must show that
occupiers are
Unlawful Occupiers and that it has followed all procedural
requirements and that it is just and equitable to order
eviction
3
.
[9] It appears to be common
cause that the occupiers are Unlawful Occupiers, that the applicant
has complied with the procedural
requirements of Section 4 of PIE
and that it has given due notice as required. The dispute between
the parties relates to the
merits of the eviction and not procedural
concerns.
[10] The issues for
determination in this application are whether it is just and
equitable for an eviction order to be granted
against the first
respondent and if so, the just and equitable date of eviction.
Common
Cause Facts
[11]
It is common cause or not disputed that;
The applicant is the
registered and lawful owner of the immovable property occupied by
the unlawful occupiers. The unlawful occupiers
invaded the
applicant's property during the period 16 December 2011 to 10
January 2012. Eviction proceedings were instituted
within six months
of the aforesaid unlawful invasion. Unlawful occupiers have erected
unlawful structures on the property. Since
the unlawful Invasion,
the applicant has secured a portion of the perimeter of the property
with the erection of a temporary
barbed-wire fence which is manned
by security personnel. The unlawful occupiers have no legitimate
right or title to occupy the
applicant's property. The applicant,
has incurred significant expenses as a result of the unlawful
occupation, in order to allow
the unlawful occupiers access to the
fenced off area, the applicant constructed an access point to the
property, manned by security
personnel which has cost the applicant
up to R655 765.22.
[12] The basis of the
opposition by the Unlawful Occupiers are that:
(a) the land
in issue is effectively
'a
green lung'and
is
not being used by the applicant for commercial gain;
(b) no specific reason is given
by the applicant for requiring eviction;
(c) no case
is made out that the unlawful occupiers are in any way interfering
with the
'legitimate
affairs'
of
the applicant.
[13] The municipality delivered
the housing report and offered the Unlawful Occupiers an option that
they be relocated to Emaus
area, adjacent to the area now occupied
by them. It was proposed that the second respondent would construct
wooden corrugated
structures upon concrete platforms for them. The
municipality also proposed that the invoices for the materials
bought in respect
of the construction would be provided to the
applicant and the applicant was willing to pay this amount The
Unlawful Occupiers
havenot responded to the proposed alternative
which is, according to the municipality eminently reasonable in the
circumstances.
[14] The first respondent
contends that the property of which the applicant is the owner is of
no commercial value to the applicant,
nor can it be put to any
commercial use whatsoever. The second respondent, the municipality,
has filed a report identifying three
sites adjacent to the
applicant's property on which it proposes to construct wooden
corrugated iron structures upon concrete
platforms. The first
respondent has not yet been able to identify the sites proposed by
the municipality and are consequently
not in a position to commit
themselves to the offer made by the municipality. The first
respondent contends that they have not
rejected the offer by the
municipality nor has that offer been withdrawn since the date upon
which it was made.
[15] In the
heads of argument, the first respondent
4
contends
that the applicant acquired the property after paying transfer duty
of a declared value of R300.00. There is no restriction
on the
disposal of the property contained in the title deed. According to
the first respondent, the applicant could sell the
property to the
municipality at the price of R300.00 and the municipality would in
those circumstances, be able to develop the
land as an informal
settlement. The property is ideally suited to be developed as an
informal settlement adjacent to Emaus informal
settlement as
indicated in the plan. This aspect will be dealt with later in this
judgment.
The
Legal Position
[16]
The relevant sections of the PIE Act are set out below:
Section
4(6) provides;
"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
ail the relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed
by women"
Section 4(7) 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
ail 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 been made available by 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".
Section 4(8) provides:
"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;
(b) The date on which an
eviction order maybe carried out if the unlawful occupier has not
vacated the land on the date contemplated
in paragraph (a);"
[17] The PIE requires a party
seeking to evict another from land to prove; ownership of land;
that the other party occupies
it unlawfully;
compliance with the procedural
provisions of PIE;
that on the
consideration of all relevant circumstances, the eviction is just
and equitable
5
.
The first three requirements of
PIE in this matter have been satisfied. Only the last requirement
remains for determination by
this court.
[18] The Court is indeed
empowered in terms Section 4(12) of PIE to attach reasonable
conditions to an eviction order.
[19] As indicated above, it is
common cause that the applicant is the owner of the property in
question, that the occupier's occupation
is unlawful and that they
have occupied the property for less than six months prior to the
institution of this application.
[20] The circumstances of this
case falls squarely within the ambit of the provision of Section
4(6) of PIE as the Unlawful Occupiers
have occupied the said land
for less than six months prior to the institution of these
proceedings.
[21] However, the availability
to the Unlawful Occupiers of suitable alternative accommodation or
land comes into play by virtue
of the provisions of Section 6(3) of
PIE, Section 6(3) of PIE provides:
"In deciding whether it
is just an equitable to grant an order of eviction,
the Court must have regard
to:
(a) The circumstances under
which the unlawful occupier occupied the land and erected the
building or structure;
(b) The period the unlawful
occupier and his or her family have resided on the land in question;
and
(c) The availability to the
unlawful occupier of suitable alternative accommodation or land.
[22] The
Court has held that there is no unqualified constitutional duty on
local authorities to ensure that there cannot be an
eviction unless
alternative accommodation has been made available
6
.
[23] The
Constitutional Court held that an eviction order in circumstances
where no alternative accommodation is provided is far
less likely to
be just and equitable than one that makes careful provision for
alternative housing
7
.
[24] Supreme
Court of Appeal
8
as per
Wallis J has recently pointed out:
"In most instances
where the owner of property seeks the eviction of unlawful
occupiers, whether from land or buildings situated
on the land and
demonstrate a need for possession and that there is no valid defence
to that claim, it will be just and equitable
to grant an eviction
order. That is consistent with the jurisprudence that has developed
around this topic. In Ndlovu v Ngcobo;
Berker & Another v Jika
2003 (1) SA 113
(SCA) at para 17, Harms J A made a point that
ownership and a lack of any lawful reason to be in occupation are
important factors
in the exercise of the Court's discretion. In
Modderkflp Boerderay (Pty) Ltd v Modder East Squaters and Another
2001 (4) SA 385(W)
, Marais J carefully weighed the different factors
and granted an eviction order. His order was upheld by this Court
and not questioned
by the Constitutional Court..." (at para
19).
[25]
The Court went on to say
9
:
"Where the eviction is
sought by a private land owner, the availability of alternative land
or accommodation assumes greater
importance in the second enquiry,
namely, what is just and equitable date for eviction. It is here
that the Constitutional obligations
of the appropriate arm of
Government - in our cities this is inevitably, the municipality -
come into focus and assume their
greatest importance. The reason is
that, even if it is just and equitable to grant an eviction order,
that is not the end of
the enquiry, because any eviction order must
operate from a date fixed by the court and that date must be one
that is just and
equitable."
[26]
The court further held
10
:
"A court hearing an
application for eviction at the instance of a private person or
body, owing no obligations to provide
housing, or achieve the
gradual realisation of the right of access to housing in terms of
section 26 (1) of the Constitution,
is faced with two separate
enquiries. First, it must decide whether it is just and equitable to
grant an eviction order having
regard to all relevant factors. Under
Section 4(7), those factors include the availability of alternative
land or accommodation.
The weight to be attached to that factor must
be assessed in the light of the property owner's protected rights
under section
25 of the Constitution, and on the footing that a
limitation of those rights in favour of the occupiers be ordinarily
be limited
in duration. Once the court decides that there is no
defence to the claim for eviction and that it would be just and
equitable
to grant an eviction order, it is obliged to grant that
order. Before doing so, however, it must consider what justice and
equity
demands in relation to the date of implementation of that
order and it must consider what conditions must be attached to that
order. In that second enquiry, it must consider the impact of an
eviction order on the occupiers and whether they may be rendered
homeless or by or need emergency assistance to relocate elsewhere.
The order that It grants as a result of these two discrete
enquiries
is a single order. Accordingly It cannot be granted until both
enquiries have an undertaking and a conclusion reached
that the
grant of an eviction order, effective from a specified date, is just
and equitable. Nor, can an enquiry be concluded
until the Court is
satisfied that it is in possession of all the information necessary
to make both findings based on justice
and equity".
[27] Section
25(1) of the Constitution
11
provides:
"No one maybe deprived
of property except in terms of law of general application, and no
law may permit arbitrary deprivation
of property".
[28] Section
26 of the Constitution
12
deals with
the right to have access to adequate housing and provides:
(1) Everyone has a right to
have access to adequate housing.
(2) The State must take
reasonable legislative and other measures, with its available
resources, to achieve the progressive realisation
of this right.
(3) No one may be evicted from
their homes or have their home demolished, without an order of Court
made after considering all
the relevant circumstances. No
legislation may permit arbitrary evictions"
[29] Section 28(1 )(c) of the
Constitution provides:
"Every child has a
right to basic nutrition, shelter, basic health care services and
social services".
PIE was enacted to give effect
to these provisions of the Constitution.
[30] The
South African Constitutional Order recognises the social and
historical context of property and related rights. The protection
against arbitrary deprivation of property in Section 25 of the
Constitution is balanced by the right of access to adequate housing
in Section 26(1) and the right not be evicted arbitrarily from one's
home in Section 26(3). The Constitutional Court noted in
FNB
13
:
"The purpose of Section
25 has to be seen both as protecting existing private property
rights as weii as serving the public
interest, mainly in the sphere
of land form but not limited thereto, and also as striking an
appropriate balance between these
two functions."
[29] The
historical contexts are relevant to one's understanding of the
constitutional protection against arbitrary deprivation
of property
and access to adequate housing. Apartheid legislation undermined
both the right of access to adequate housing and
the right to
property. Section 25 prohibits arbitrary deprivation of property but
also addresses the need to redress the grossly
unequal social
conditions. Section 26 highlights the transformative vision of the
Constitution
14
.
[31] The
owner's right to land is not virtually unlimited. The Constitutional
Court
15
held that
ownership in South Africa is not as unrestricted:
"Of course, a property
owner cannot be expected to provide free housing for the homeless on
its property for an indefinite
period. But in certain circumstances
an owner may have to be somewhat patient, and accept that the right
to occupation maybe
temporarily restricted .... An owner's right to
use and enjoy property at common law can be limited in the process
of the justice
and equity enquiry mandated by PIE"
[32] Where
residents have been in occupation of land for less than six months,
a Court is not expressly obliged to investigate
whether a
municipalitycan reasonably make land available for people who might
be evicted. (Section 4(6) of the PIE) On the other
hand, a Court is
enjoined to make the alternative land investigation if the
occupation exceeds say six months, although this
distinction is
important, it is not decisive to the justice and equity enquiry. If
a Court has before it a case in which the
land occupation falls
short of six months, it is obliged to consider all relevant
circumstances
16
.
[33] It is
trite law that compliance with the requirements of section 4 refers
to both the service formalities and the conclusion
under section
4(7) that an eviction order would be just and equitable
17
[34] In the present matter, a
housing report was delivered by the municipality to the applicant
and to the first respondent on
4 April 2012. The report is in the
form of an affidavit deposed to by the municipality's Senior Legal
Advisor.
[35] It is appropriate to set
out some relevant paragraphs of the housing report:
"3:
The
purpose of this affidavit is to report to the above Honourable Court
with regards to the availability of alternative accommodation
to
house the occupiers currently occupying the applicant's property;
4:
Pursuant
to a meeting with the applicant, it was confirmed that seven
households currently occupy the applicant's property within
an
arrear that has, since the occupier's arrival been fenced off by the
applicant;
5:
As
a result of that determination, the 'second respondent' has located
sites in the Emaus area, which are suitable for the relocation
of
the occupiers. Annexed to marked "A
1
is a copy of
the aerial photograph of the applicant's property as well as the
Emaus area and annexed hereto marked "B"
are the lots
within Emaus area and which indicate the lots owned by the "second
respondent" to which the occupiers
will be relocated to;
6:
The
aforementioned plan by the 'second respondent' was communicated to
the applicant's Attorney Garlicke & Bousfield and to
Anand-Nepaui Attorneys, the attorney's representing the first
respondents on 28 March 2012. Annexed hereto marked "C"
is
the copy of that letter.
7:
As
it is apparent from annexure "C", the proposal was that:
"7.
1
The seven dwellings of the occupiers will be relocated to Lots
within the Emaus area as indentified by Housing Department of
the
(first) respondent (the Municipality);
7.2. The applicant was
invited to make contribution of approximately R10 000,00 with regard
to the relocation costs;
7.3. The relocation would be
within a reasonable time".
8: There has been further,
without prejudice, correspondence with the applicant with regards to
the time frame. The (Municipality's)
response to that without
prejudice correspondence is annexed hereto marked "D".
9. As is apparent from annexure
"D".
9.1. the unlawful occupiers
would be relocated within three months of the date of the receipt of
payment of the contribution from
the applicant;
9.2. during the three months
period, consultations would be held with community members of the
area into which the occupiers would
be relocated to;
9.3. the Invoice for the
materials bought in respect of the construction would be provided to
the applicant.
For the sake of clarity, I
point out that in the filing notice of the housing report and the
report Itself, the eThekwini Municipality
is cited as the first
respondent, whereas in the rest of the papers before court, the
eThekwini Municipality is cited as the
second respondent
[36] As at the time of the
hearing of the application, the Unlawful Occupiers had not responded
to the offer made to them. Nor,
is there any explanation provided as
to why they have not responded to this offer.
[37] The answering affidavit to
these proceedings is deposed to by one Nokukhanya Sharon Ndlamuka,
who describes herself as an
adult female and one of persons
described in these proceedings as the first respondent. She alleged
that she represents herself
and 10 families residing on the said
property. She further alleged that affidavits from the remaining
families setting out their
personal circumstances will be filed once
their Attorneys have had an opportunity to obtain that information.
[38] As at the date of the
hearing of this application, no other answering affidavits or
confirmatory affidavits had been filed
by the families referred to
by the deponent. She further alleges that no reason is given by the
applicant for requiring their
eviction. She also contends that no
case is made in the founding papers that they are in anyway
interfering with the legitimate
affairs of the applicant in regard
to the property of the Association. The deponent alleges that she is
a single mother residing
in the house with her minor children and
her mother. Her mother works at Kloof as a domestic worker, it is
cheaper for her to
commute between her place of employment and where
they reside. The deponent is unemployed and cannot qualify for any
form of
employment. She has one of her children attending school at
Motala Heights Primary School which is relatively close to where
they stay. She receives grant in respect of her three children at
the total of R860.00 per month. She alleges that the house which
they occupy is conveniently situated to enable her mother to walk in
and out without incurring big transport expenses and his
son is able
to attend school without too much inconvenience.
[39] The circumstances of the
other families referred to in the housing report and/or those
referred to by the deponent in the
answering affidavit are not known
to this court. In my view, they have been given more than enough
opportunity to place their
circumstances before this court.
[40] There has been meaningful
engagement between the applicant and the second respondent, the
municipality. That engagement resulted
in the production of the
housing report referred to above. In this report, alternativeland or
accommodation is made available
to the Unlawful Occupiers. The
applicant has indicated its willingness to contribute financially
towards the relocation of the
Unlawful Occupiers. This, however, is
an arrangement between the municipality and the applicant The
Unlawful Occupiers have,
however, not responded to the offer of
alternative accommodation made to them despite the fact that this
offer was communicated
to them on 28 May 2012. No explanation has
been provided as to why the Unlawful Occupiers have not responded to
the offer made
which appears to be reasonable in the circumstances
of this case.
Jacoob J
stated
18
:
"It is of some
significance in the context that Goldern Thread has not put the land
to any use nor is there any evidence
that it intends to subject the
land to use in the foreseeable future. If this is true, there would
be little prejudice to Goldern
Thread if the applicants remain in
occupation for some months longer until alternative land becomes
available".
[41] In
Goldern
Thread, supra,
the
Constitutional Court set aside the High Court's finding under
Section 4(6) of the PIE, that it was just and equitable to evict
the
occupiers. It did so on the ground that since the High Court had not
investigated whether the second respondent could provide
alternative
land or housing, it had failed to comply with the duties under
Section 4(6) of the PIE.
[42] The 200
families in the
Goldern
Thread,
had
occupied the relevant land for a period of less than six months. The
facts of the present case can be distinguished from the
facts of the
Goldern
Thread
in
that in the present case there is a housing report which cleariy
indicates that alternative accommodation or land is in fact
available, adjacent to the properties where the Unlawful Occupiers
have erected their houses.
[43] The Unlawful Occupiers
have, in my view, been given a reasonable opportunity to respond to
the offer of alternative accommodation
or land which is made
available to them. There is no reason advanced by the Unlawful
Occupiers as to why they have not responded
to the said offer which
is still open. This is so despite that the Unlawful Occupiers are
legally represented in these proceedings.
[44] In the present matter
there is no possibility that the eviction of the Unlawful Occupiers
may result in homelessness as alternative
accommodation or land has
been identified and made available to them by the second respondent.
Through their attorneys, the Unlawful
Occupiers have been invited to
respond to the offer of alternative accommodation or land but they
have not done so.
[45] It is clear from the
housing report that there are seven house holds which currently
occupy the applicant's property and
that the second respondent has
located sites in the Emaus area which are suitable for the
relocation of these Unlawful Occupiers.
These sites are owned by the
second respondent
[46] The fact that the land
occupied by the Unlawful Occupiers has some restrictions relating to
what can be built on the land
and that at present is of no
commercial use is neither here not there. Those restrictions can be
removed and the land be rezoned
for any use including commercial
use.
[47] It is common cause that
the applicant has expended money on the land fencing the land and
providing security on a daily basis.
However, the prejudice suffered
by the applicant is the deprivation of its own property and the
financial prejudice in expending
money on the security requirements.
[48] The Unlawful Occupiers are
not only occupying the said property unlawfully but they have
erected structures which are in
themselves unlawful in terms of the
restrictions of the title deed referred to earlier on in this
judgment.
[49] I have already mentioned
that they have no valid defence in the form of a lease or otherwise
which entitles them to occupy
the said property.
[50] In
determining whether an eviction is just and equitable one has to
take into consideration all relevant information. This
is in terms
of both the Constitution and the PIE. The need to ensure that ail
information is available has been echoed in a number
of Court
decisions
19
.
[51] In my
view, the information contained in the housing report in this matter
and in the affidavits is the type of information
contemplated in the
City of Johannesburg
20
,
which information is sufficient and relevant to determine whether it
is just and equitable to evict the Unlawful Occupiers.
[52] In the present matter, the
structures or buildings from which the Unlawful Occupiers are sought
to be evicted have been inspected
by the municipality. There is no
indication from the municipality's housing report that their
continued occupation gives rise
to health or safety concerns. This
is also evident from a photograph annexed marked "B" to
the answering affidavit
of Nokukhanya Sharon Dlamuka, one of the
Unlawful Occupiers, depicting the house in which she stays with her
family.
[53] The second respondent has
in its housing report confirmed that seven households occupy the
applicant's property. It is also
evident from the answering
affidavit filed that some of the households are headed by women and
that there are also children and
elderly women in the households. No
mention has been made of disabled persons.
[54] The second respondent has
made provision for alternative accommodation for the first
respondent, which is just adjacent from
where they are to be
evicted. The eviction order will therefore not result in
homelessness.
[55] The implications of the
delay of the eviction to the owners is mainly that they are being
unlawfully deprived of the ownership
of the land, and that they
suffer financial losses in providing security on the said property.
There is no evidence that it intends
to subject the land to use in
the foreseeable future.
[56] As indicated above, the
Unlawful Occupiers are legally represented in this matter. It is
clear from the housing report, that
the second respondent's plan
relating to alternative accommodation, as contained in the housing
report, has been communicated
to the Unlawful Occupiers' legal
representatives. In my view, this amounts to constructive engagement
with Unlawful Occupiers
by the municipality, (paras 6 - 9 of housing
report supra), in any event, the eviction order sought by the
applicant would not
render the Unlawful Occupiers homeless.
[57] Counsel
for the applicant pointed out that in the heads of argument for the
Unlawful Occupiers, a new argument is raised
and was also pursued in
Court, namely, whether the Municipality should be ordered to
purchase from the applicant the land now
unlawfully occupied by the
first respondent. Counsel for the applicants submitted, correctly in
my view, that it is not open
to the first respondent to raise this
argument as there is absolutely nothing in the affidavits dealing
with the proposition
that the Municipality should purchase the land
from the applicant. If the proposition that the municipality should
purchase the
said land or be ordered by Court to do so was revealed
in the affidavits, I am certain that the second respondent,
municipality
would have responded thereto. The paragraphs referred
to by Mr Broster on behalfof the first respondent do not deal with
this
aspect. The case argued by Counsel for the first respondent was
not properly made out in the answering affidavit. He was therefore
not entitled to raise such an argument on this issue. The Court
stated
21
:
The fundamental problems
facing Transnet are two fold. In motion proceedings, the affidavit
constitutes not only the evidence,
but also the pleadings.
Transnet's answering affidavit is deficient in both respects".
[58] In the result, it is
therefore not permissible for the first respondent to advance this
new argument which has not been dealt
with in the affidavits.
[59] The first respondent
disputes that this property is used as a "green lung" as
contended by the applicants. In my
view, this is not a material
dispute of facts. This dispute is capable of being resolved without
the aid of oral evidence. In
my view, there is no need that this
issue be referred to the hearing of oral evidence as contended by
the first respondent.
[60] Having considered all the
circumstances of this case, I am satisfied that the applicant has
succeeded in showing that it
is just and equitable to evict the
first respondent from the applicant's property.
Just and equitable date
of eviction
[61] This court now has to
determine what is just and equitable date for the eviction.
[62] It is
trite that an eviction must operate from a date fixed by the Court
and that date must be one that is just and equitable
22
.
[63] The availability of
alternative land or accommodation becomes more important when one
determines a just and equitable date
for eviction.
[64] I have already dealt with
the housing report wherein an offer was made to the Unlawful
Occupiers, offering them reasonable
alternative accommodation in a
settlement area adjacent to the one they are unlawfully occupying,
with a possibility, an offer
of payment of resettlement costs by the
applicant. However, the respondents have not responded to the offer
made despite that
the offer was made on 28 May 2012. Between that
date and the date of the hearing of this application, the Unlawful
Occupiers
have had more than three months within which to do so.
[65] In the heads of argument,
the first respondent has stated that they have not rejected the
offer made by the municipality
and that they will communicate with
the municipality between the date of the heads of argument dated 4
September 2012 and the
date of set down of the application (i.e. 10
September 2012) in an attempt to reach a satisfactory agreement.
There is no indication
anywhere that the first respondent has
communicated with regard to the offer made by the municipality. The
first respondent has
not alleged anywhere in the papers that the
accommodation provided to it by the municipality is not suitable for
resettlement.
[66] In terms of the housing
report, the municipality has identified seven households who
unlawfully occupy the applicant's property.
In terms of the report,
the second respondent has identified suitable accommodation directly
opposite the applicant's property
where the Unlawful Occupiers could
be relocated to.
[67] As indicated above, in the
answering affidavit, it is alleged that the individual Unlawful
Occupiers will file affidavits
dealing with their circumstances.
However, these affidavits were never filed until this application
was heard and no application
for an adjournment was made to enable
the individual Unlawful Occupiers to file affidavits dealing with
their personal circumstances.
In my view, it would not be prudent to
adjourn this application any further to enable the individual
Unlawful Occupiers to file
answering affidavits, they had ample
opportunity within which to do so.
[68] It is essential that
evictions must be carried out in a fair and orderly manner. The
order I propose making I believe would
be just and equitable and
serve the interest of the applicant and the first respondent, the
Unlawful Occupiers.
[69] In terms of the housing
report, the municipality has identified lots owned by it where the
seven households, unlawfully occupying
the applicant's property,
could be relocated. The housing report also refers to a contribution
of R10 000,00 per family from
the applicant, which is an arrangement
between the applicant and the Municipality. In terms of a further
arrangement, the occupiers
would be relocated within 3 months of the
date of receipt of the payment of contribution from the applicant.
[70] Of importance in this
housing report is that the Municipality intends to construct wood
and corrugated iron structures situated
upon concrete platforms in
order to relocate the occupiers currently unlawfully occupying the
applicant's property. In my view,
the relocation of the first
respondent as envisaged by the second respondent, the Municipality,
would provide suitable alternative
accommodation to the Unlawful
Occupiers of the applicant's land.
[71] In my view, it would not
be appropriate to authorise the immediate eviction of the unlawful
occupiers prior to the construction
by the Municipality of the
contemplated wood and corrugated iron structures situated upon
concrete platforms as contemplated
in paragraph 10 of the housing
report. To authorise immediate eviction may lead to homelessness. As
indicated above, this Court
is empowered in terms of Section 4(12)
of PIE to attach reasonable conditions to an eviction order. The
eviction of Unlawful
Occupiers would be just and equitable if it is
linked to the provision of alternative accommodation by the
municipality, as in
the present case.
[72] The date of eviction must
be linked to the date on which the municipality provides alternative
accommodation to the Unlawful
Occupiers. The municipality is
required to provide alternative accommodation 15 days before the
date of eviction, this will allow
the Unlawful Occupiers some time
and space to be assured that the order to provide them with
accommodation was complied with
and to make suitable arrangements
for relocation.
[73] In my view therefore, it
would be appropriate to allow some time for the second respondent to
complete the construction of
the wood and corrugated iron structures
situated upon concrete platforms in the located sites in the Emaus
area before the eviction
is effected.
Costs
[74] With regards to costs, I
am of the view that there is no reason to deviate from the general
principle that the successful
party should be entitled to its costs.
The applicant has been substantially successful and is therefore is
entitled to its costs.
Furthermore, the second respondent was
responsible for the adjournments of 25 November 2011, 20 January
2012 and 4 April 2012
and the second respondent should be ordered to
pay those wasted costs occasioned by those adjournments.
[75]
In the result, I make the following order:
(1) All
persons presently occupying Erf 13113 Pinetown (hereinafter referred
to as "the first respondent) are ordered in
terms of section
4(1) of the Prevention of illegal Eviction from and Unlawful
Occupation of Land Act 1998 to vacate Erf 13113
Pinetown ('the
property
1
).
(2) The persons referred to in
paragraph 1 above are ordered to vacate the said property by 22
February 2013.
(3) The second respondent
(municipality) is ordered and directed to erect and construct the
wood and corrugated iron structures
situated upon concrete platforms
in the located sites owned by the second respondent at Emaus area,
as contemplated in their
housing report dated 4 April 2012 to
relocate and house the Unlawful Occupiers currently occupying the
applicant's property.
(4) The second respondent is
given a period of three months from the date of this judgment within
which to erect and complete
the structures referred to in the
preceding paragraph. The erection and construction of these
structures shall be finalised on
or before 7 February 2013.
(5)
In the event
that the Unlawful Occupiers do not vacate the property in accordance
with the provisions of paragraph 2 hereof, then,
two (2) days
following the day referred to in para 2 thereof, being 25 February
2013, the sheriff is authorised to evict any
such persons remaining
in occupation of the property and is further authorised to employ
any necessary force in order to give
effect to this order.
(6) The second respondent is
ordered to pay the wasted costs occasioned by the adjournments on 25
November 2011, 20 January 2012
and 04 April 2012.
(7) Save for the costs orders
in the preceding paragraph, the first respondent is ordered to pay
the costs of this application,
jointly and severally, the one
paying, the others to be absolved.
SISHI J
APPEARANCES
Date
of hearing: 10 September 2012
Date
of judgment: 7 November 2012
Counsel
for the Applicant: A J Boulle
Applicant's
Attorneys:
GARLICKE
& BOUSFIELD INC.
La
Lucia
C/O
29
th
Floor,
Durban Bay House
333
Anton Lembede Street
DURBAN
Ref: C Segen/pf/A235
Counsel
for the 1 Respondent : L B Broster SC
1
st
Respondent's
Attorneys
Anand-Nepaul
9
th
Floor, Royal
Towers 30 Gardiner Street DURBAN Ref:AN:P179;sj
Counsel for the 2 Respondent:
Mr I Veeresamy
2
nd
Respondent's
Attorneys:
BERKOWITZ
COHEN WARTSKI
18
th
Floor,
Southern Life House
88
Joe Slovo (Field) Street
DURBAN
(Ref:
E Sibiya/AR/52E336230
1
The
Company's Act 61 of 1973.
2
Main
application papers p32, para c(iv) page 6 of the title deed.
3
City
of Johannesburg v Changing Tides 74(Pty) Ltd and others
(735/2011)[2012] ZASCA 116 paras 30-34.
4
First
Respondents' Heads of Argument paras 1, 9, 10 and 11.
5
Wormald
NO & Others v Kambule 2006(3) SA 562 (SCA), para 11.
6
Port
Elizabeth Municipality v Various Occupiers 2005(1} SA 217(CC) para
28 (PE Municipality)
7
Joe
Slovo Community, Western Cape v Thubelisha Homes & Others
(Center of Housing Rights and Evictions
and
another, (amicicuriae)
2010 (3) SA 454
(CC) para 131 per O'Regan J
(hereafter Joe-Siovo community).
8
City
of Johannesburg v Changing Tides 74 (Pty) Ltd, 2012 (ZA) SCA 116 (14
September 2012)(hereafter City of Johannesburg).
9
City
of Johannesburg para 20.
10
City
of Johannesburg para 25.
11
Constitution
of the Republic of South Africa Act 108 of 1996 (the Constitution).
12
Ibid
13
First
National Bank of SA v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC) para
50, and Blue Moonlight Properties, infra, at para 34.
14
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another
2012 (2) SA 104
(CC) paras 34,
35 and36, (Blue Moonlight) andPE Municipality, supra, parall).
15
Blue
Moonlight, para 40
and
15
Occupiers
of Mooiplaats v Goidren Thread Ltd and Others
2012 (2) SA 337
(CC)
at para 17). (hereafter Occupiers of Mooiplaats)
16
Occupiers
ofMooipIaats paras 15&16.
17
ABSA
Bank Ltd v Murray & Another 2004(2) SA 15(c) para 19.
18
Occupiers
ofMooipIaats v Goldern Thread Ltd and Others
2012 (2) SA 337
at
paras 18
19
Occupiers,
Shulama Court v Steele
[2010] 4 ALL SA 54SCA
and occupiers of
Mooiplaats, para 16,
20
City
of Johannesburg, para 40.
21
Minister
of Land Affairs and Agriculture and Others vD&F Wevetl Trust and
Others
2008 (2) SA 184
(SCA) at para 43, and in Transnet LTDv Ruben
Stein
2006 (1) SA 591
(SCA) at para 28.
22
City
of Johannesburg case, supra, para 20.