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[2009] ZAGPPHC 330
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Erasmus v City of Tshwane Metropolitan Municipality and Others (51032/08) [2009] ZAGPPHC 330 (22 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NO: 51032/08
DATE:
22 SEPTEMBER 2009
IN
THE MATTER:
PCM
ERASMUS APPLICANT
AND
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY 1
st
RESPONDENT
MR
GODFREY
MTENJE 2
nd
RESPONDENT
MR
ABRAM
MORUBA 3
rd
RESPONDENT
MR
ALFRED
MADIOPE 4
th
RESPONDENT
THE
UNLAWFUL OCCUPANTS ON
SMALL 5
TH
RESPONDENT
HOLDING
54 ANDEON PRETORIAAFRICAN NATIONAL
JUDGMENT
RAULINGA,
J
[1]
The applicant brought an application for the eviction of the second
and further respondents from the immovable property referred
to as
"Smallholding 54, Andeon, Pretoria.
[2]
The application is based on the 'rei vindicatio' in terms of
the Prevention of the Illegal Eviction and unlawful occupation
of
Land Act, Act 19, of 1988 (PIE) In the main application, the
applicant after complying with the provisions of PIE lodged an
‘
ex
partd'’ application to serve the notice in terms of section 4
(2) of PIE.
[3]
On the 19
th
of August 2009 when the application to serve in terms of section 4
was to be heard, the respondents raised a 'point in limine'
that
the application ought to have been
brought in terms of the Extension of Security Tenure Act 62 of 1997
contending that this court
lacks jurisdiction and that the matter
ought to have been referred to the Land Claims Court which has
jurisdiction to entertain
such an application.
[5]
The point in limine is raised on behalf
of the respondents in that all respondents contended that they are
not unlawful occupiers
in terms of the PIE Act, but are in fact
lawful occupiers in terms of ESTA.
The
respondents' evidence is that they occupied the property
1.
having
obtained express consent from the applicant
2.
pursuant to the conclusion of oral rental agreements
3.
the applicant having tacitly consented to the respondents' residence
or occupation of the property
[6]
However, the applicant avers that
1.
the respondents never worked on the land and did not have consent to
move their dependants onto the land
2.
all of the respondents who filed opposing papers claim to be
unemployed but in other affidavits they refer to the fact that their
structures were demolished while they were at work.
3.
The respondents do not claim that their income falls below the
threshold of R5 000, per month which would entitle them to protection
in terms of ESTA.
[7]
It is incumbent upon the respondents to show on a balance of
probabilities that ESTA is applicable.
[8]
In terms of PIE an "unlawful occupier"
is defined as:
"means
a person who occupiers 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 the Interim
Protection of Informal Land Rights
Act (131 of 1996)"
"Owner"
is defined as the registered owner of land including an organ of
State
In
terms of ESTA an "occupier
”
is defined as:
"means
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 the land in question mainly for
industrial, mining\ commercial, or commercial farming purposes,
but
including a person who works the land for 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"
[9]
The application of E5TA is set out in Section 2(1) of ESTA;
(1)
subject to the provisions of Section 4, this Act shall apply to all
land other than land in a township established, approved
or otherwise
recognized as such in terms of any law, or encircled by such
townships or townships but including-
(a)
any land within such a township which has been designated for
agricultural purposes in terms of any law; and
(b)
any land within such a township which has been established, approved,
proclaimed or otherwise recognised after 4 February 1997,
in respect
only of a person who was an occupier immediately prior to such
establishment, approval, proclamation or recognition.
(2)
Land in issue in any civil proceedings in terms of this Act shall be
presumed to fall within the scope of the Act unless the
contrary is
proved.
The
land in Question "Small Holding 54, Andeon. Pretoria is a plot
that is used for agricultural/rural purposes. No organ of
State has
the sole control over it. It therefore holds that the owner has sole
control over this land and all those who live in
it. The said land is
described on page 18 of the papers (Annexure PE 1) as follows:
"Landbouwhoewe
(beteken) een stuk grond uits!uitend of hoofdzakelik gebruikt voor
land - of tuinbouw of voor het telen of houden
van huisdiern,
pluimvee of bijon".
It
can be safely concluded that this land is used for agricultural/rural
purposes.
[10]
The applicant concedes that the second and further respondents are
renting the land, but claims that such
contract
was terminated by an eviction notice dated 31 October 2005. However,
the respondents argue that the eviction notice is
irregular in that
it does not comply with the provisions of the PIE Act by virtue of
the arbitrary nature thereof. It therefore,
holds that the notice of
31 October 2005 is not a proper notice and as such any withdrawal of
the consent intended thereby, was
irregular. This fact is conceded by
the applicant.
[11]
The submission by the applicant that the respondents did not mention
that they earn less than R5 000 per month, does not hold
water. The
fact that there is an omission does not entitle the applicant to
infer that they earn more than R5
000
per
month. This can also be gleaned from Form PE 6 on Page 41 of the
papers which was completed by the respondents. It is therefore
clear
that the applicant did not comply with the provisions of the PIE Act,
on which it wishes to rely.
[12]
The respondents have continuously and openly resided on the land for
a period of more than one year and there is as such a
rebuttable
presumption that the respondents resided in the property with consent
of the owner. Further, in view of the fact that
the land in question
is agricultural land the applicant ought to have referred the matter
to either the Magistrate Court or the
Land claims Court, both of
which have jurisdiction to hear matters falling under ESTA. The
Lebowa Platinum Mines Ltd v Viljoen
2009
(3) SA 511
SCA) is authoritative in this respect:
In
this case the learned Maya, JA quoted a dictum from Mkangeli and
Others v Joubert and Others
2002
(4), SA 36
(SCA) at para 9,17 and 18:
'Generally
speaking ESTA protects a particular class of impecunious tenant on
rural and semi-rural land against eviction from that
land.... It
seems... that... the Legislature intended to impose extensive
limitations on any right to seek the occupiers' eviction
from that
land. This intention appears to be emphasised by the plain wording of
ss 9 (1) and 23 (1) of ESTA [which prescribe that
an occupier may be
evicted only on the authority of a court order] ....A
literal interpretation of these
provisions appears to indicate an intention on the part of the
Legislature that any right to have
an occupier evicted, regardless of
who may be the holder of such right and whatever the source of such
right may be, should be
subject to and limited by the provisions of
ESTA."
She
then concluded as follows:
“
These
views, with which I respectfully agree, tend to reinforce mine- that
although there is obviously a particular class of vulnerable
persons
who were the legislature's primary concern when ESTA was conceived,
of which a
respondent may not be a
member, courts are nonetheless enjoined to consider the colour-blind
provisions ofs 26 (3) of the Constitution
when interpreting ESTA,
From the wide wording of such provisions, it hardly seems
inconceivable that in that exercise a person
falling outside the
designated category, but nonetheless possessed of a landowner's
consent or some other legal right, may fall
within its purview”
This
application for the eviction of the respondents is fatally flawed as
it should have been brought in terms of ESTA and not in
terms o PIE.
[13]
Consequentially as seen in the decision mentioned above the matter
should be entertained by the Land Claims Court.
[14]
In its submissions, the applicant made a plea that instead of
dismissing the application the Court should refer the matter
to the
Land Claims Court.
[15]
I am not inclined to make such an order in view of the fact that the
application is paralyzed by a number of irregularities.
[16]
In the premises, I would make the following order:
The
applicant's application is dismissed with costs.