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[2009] ZAGPPHC 381
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Blouw v AM Maree Algemene Construction CC and Another (24851/2008) [2009] ZAGPPHC 381 (14 October 2009)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT. PRETORIA
CASE
NUMBER: 24851/2008
DATE:
14 OCTOBER 2009
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
ROSALINE
BLOUW Applicant
And
A.M.
MAREE
ALGEMENE 1
st
Respondent
CONSTRUCTION
CC
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY 2
nd
Respondent
JUDGMENT
1.
The applicant and eight other applicants apply for the rescission of
an order granted by this Court on the 20
th
June 2008, evicting them from premises described as Sectional Title
[…...] in a sectional title scheme known as […...].
2.
The immovable property is also known as […....].
3.
The applicants were evicted as unlawful occupiers in terms of the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998.
4.
The applicants assert that the eviction was unlawful as they occupied
the land in question as lawful occupiers in terms of the
Extension of
the Security of Tenure Act 62 of 1997 (“ESTA”). They
allege that the land is in fact agricultural land
in spite of the
development of a sectional title scheme thereupon. In addition, some
if not all of them are alleged to have been
in lawful occupation of
the premises prior to 4
th
February1997
and all applicants allege that they have been in occupation with the
owner's consent.
5.
If the land is indeed zoned as agricultural land, the High Court has
no jurisdiction and ESTA applies in terms of section 2 thereof.
6.
The question whether the land concerned is agricultural land
occasioned some concern during argument, rather unnecessary so as
it
turns out. The court is indebted to the parties for the additional
research they conducted at the court's request into the history
of
the zoning and transfer of the property concerned.
7.
It emerged from the records at the Registrar of Deeds' office that
the property has always been zoned as an agricultural holding,
even
though a sectional title register was opened in respect thereof prior
to the promulgation of ESTA.
8.
Although the existence of a sectional title scheme on agricultural
land may not be the norm, neither ESTA nor the
Sectional Titles Act
95 of 1986
prohibits the establishment thereof on land zoned as such.
On the other hand, the development of a share block scheme on
agricultural
land is specifically outlawed by the Share Blocks
Control Act 59 of 1980.
9.
In spite of diligent research, neither party could find any evidence
that the zoning of the property concerned had been changed
to any
other than agricultural.
10.
In the light of this fact, the court must conclude that the land is
indeed agricultural land in spite of the development that
occurred
thereon, which means that the eviction in terms of Act 19 of 1998 was
unauthorised as this court has no jurisdiction to
evict occupiers
protected by ESTA.
11.
This finding makes it unnecessary to deal with the disputes regarding
the alleged consent or termination of the right to occupy
that emerge
from the papers.
12.
The judgment evicting the applicants is therefore rescinded.
13.
The applicants incurred unnecessary costs by launching nine
individual applications, which was entirely unwarranted.
14.
Only the costs of one founding affidavit of one of the applications
should therefore be allowed although the second respondent
has
tendered to pay the applicants’ costs.
The
following order is therefore made:
1.
The application succeeds and the judgment granted against the
applicants under the above case number is rescinded.
2.
It is noted that the second respondent has tendered to pay the
applicant's costs.
3.
The respondents are to pay their own costs and the costs of one
application only if the second respondent fails to pay the
applicants'
costs.
Signed
at Pretoria on this 13
th
day of October 2009
____________________
E
Bertelsmann
Judge
of the High Court