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[2009] ZAGPPHC 142
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Mills v Shawe and Others (28458/2009) [2009] ZAGPPHC 142 (11 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NOR
TH
GAUTENG HIGH COURT)
Case
Number: 28458/2009
Date: 11/11/2009
UNREPORTABLE
In the matter
between:
K
ATHLEEN
MILLS
APPLI
CANT
vs
BREM
SHAWE
1
ST
RESPONDENT
THE
EMAKHAZENI
LOCAL MUNICIPALITY
2
nd
RESPONDENT
THE
UNLAWFUL
OCCUPANTS ON PORTION 3 OF THE FARM MOEILYKHEID
FUTHER
RESPONDENTS
JUDGMENT
Heard on: 02 November 2009
Delivered on
:
11 November 2009
BAM
AJ,
Introduction
;
The applicant
applies for the eviction of the
first
respondent and “further respondents” from the immovable
property of the applicant.
The app
lication
is brought based on the
rie
vindicatio
in conjunction with provisions of Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act, 19 of 1998 (PIE).
It was common
cause that the
first
respondent was the step son of HERBERT MLANZI and son of EVELYN
SHAWE. The aforesaid persons passed away respectively on
the 7
th
of July 2008 and 11
th
of November 2008.
It was
further
common cause that since 1984 the deceased were residents on the farm
MOEILYKHEID, 129 JT, Belfast, Mpumalanga now belonging
to the
applicant.
The applicant
claims that nobody else but the afore deceased persons was entitled
to occupy their residence on the said farm at all relevant
times.
The fi
rst
respondent averred that he was entitled to occupy the said farm on
the following basis,
In term
s
of the provision of the Land Reform Act (labour tenant) Act 3 of
1996 on the basis that he is a labour tenant per definition.
That in terms of
the foresaid act that he was also appointed as successor of the
deceased in
accordance
with the provision of section 3(4) & (5) of the Act.
A
dispute
of facts exists between the parties regarding the question whether
the first respondent in fact resided with the deceased
persons on
the said farm since the year 1984, according to his version, or
whether he never resided on the farm at any time according
to the
version of the applicant but that he started to attend to the
matters regarding his mother’s belongings after the
date of
her death on 21 November 2008.
Consideration
regarding the facts;
Before attending
to the question of law raised
by
the parties and the points
in
limine
referred to by the first respondent, I regard it as important and
compulsory to determine and find on the probabilities exactly
what
the facts are.
I am of the
opinion that the probabilities regarding the first question referred
to above, whether the first Respondent resided
on the farm since
1984 favour the applicant on the following grounds:
Apart from the
respondent’s allegation that he grew up on the farm there is
no indication of whatsoever nature what he did
on the farm or
whether he was else where employed. There is also no indication on
record that his name or any reference to him
as a person are
referred to in any document; the only reference to family members of
the deceased is a reference to grand children
who visited the
deceased, and who were permitted to do so, during school holidays.
In this regard Mr
Barnard
,
appearing for the first Respondent referred me to the agreement on
page 46 of the papers, sub paragraph 2 thereof where reference
was
made as follows “the grandchildren will be fetched in the
event of Herbert’s death.” Mr. Barnard’s
submission in this regard was that this clearly indicated that
grandchildren resided on the farm. Mr Scheepers for the applicant
pointed out that if the first respondent in fact resided on the farm
as he claimed, it is remarkable that no reference is even
made of
his presence on the farm on the document that I quoted from.
What I
further
find of importance is a lack of detail in the first respondent’s
version regarding his alleged time of residence
on the farm in view
of
alter
alia
his age. In view of the fact that the reference has been made to the
grandchildren one can safely assume that on the probabilities
the
first respondent was already an adult in 1984. One would have
expected the first respondent, in the circumstances, to elaborate
about his personal circumstances including his marital status, and
children if any, and particulars of his employment.
In
view
of the aforesaid I have come to the conclusion that the first
respondent’s version of his residence on the farm since
1984
can safely be rejected.
In the replication
of the applicant
further
confirmatory evidential material was filed supporting the
applicant’s version regarding the above mentioned issue.
Even
if the replication contains “new evidence”, that should
not have been allowed, I am still of the opinion on
the remaining
facts that applicants version is to be accepted.
Point
s
in limine of the first Respondent;
The first point
in
limine
taken by the first respondent refers to the citation of “further
respondents”; apparently referring to “other”
unlawful occupants on the farm. In this regard Mr. Barnard referred
me to the authority
Dries
vs Venter NO and others
2005 (6) SA 67
(T)
where it was held that an eviction order can not be granted against
any person who has not been properly notified in terms of
the Act.
From the papers it appears that the only other person who may come
into play is the brother of the first respondent,
Mr. MOKOENA who
filed a confirmatory affidavit (p30 & 31 on the papers).
In the
circumstances
it accordingly appears to me that the afore said GEORGE was aware of
the application and that Mr. Barnard’s
argument in that regard
should not be upheld.
T
he
second point
in
limine
taken by the first respondent turns about the jurisdiction of this
court. According to the argument the first respondent based
his
right of occupation on the provision of the Land Reform Act, Act 3
of 1996. It was submitted that the first respondent is
in fact a
“labour tenant’ as defined in section 1 of the said Act.
It was further submitted that any labour tenant
may only be evicted
in terms of an order of court, being the Land Claims Court
instituted by Section 22 of the Restitution of
Land Right Act of
1994, Act 22
of 1994.
Accordingly it was
submitted
that in view of the dispute between the parties, which required and
interpretation of the said Act, and where no oral
evidence was
adduced, the case must be transferred to the Land Claims Court for
adjudication by that Court.
In developing his
argument in this regard Mr Barnard
referred
to the definition of the “labour tenant” in section 1 of
the Land Reform Act.
Mr. Barnard
further
referred the court to several authorities regarding the
interpretation of “labour tenant”.
I am of the
opinion that in view of the version of the applicant regarding the
basis of the residence on the farm of the deceased
which I have
already
explained,
that the first respondent does not fall within the ambit of the
definition of a labour tenant. That includes my finding
that the
first respondents late step father also did not fall within the
definition of a “labour tenant”.
Mr. Barnard
further
submitted that the first respondent was appointed as successor of
his late step father in terms of the provisions of section
3(4) &
(5) of the Act.
The
first
respondent stated in his apposing affidavit that he was appointed
successor of his late step father. According to Mr. Barnard
the
first respondent’s situation is covered by the Provisions of
Sections 3(4) and (5) to which I have referred above.
I
n
view of my finding above, which includes that the first respondent
in fact only attended to the negotiation regarding the removal
of
the belongings of his deceased mother from the farm after her death,
I am of the opinion that there is no indication whatsoever
on record
from which I can infer that the first respondent was in fact the
appointed successor.
The aforesaid
finding
s
to which I have referred to, further included that the first
respondent is not a ‘labour tenant’ in terms of the
Act.
The
third
point
in
limine
taken by Mr. Barnard turns about the question of what a case, if
any, the applicant made out in his founding papers. In this
regard
I’ve all ready referred to my finding that regarding the
merits of the matter the probabilities favour the applicant,
even if
what is contained in the replication is not considered.
Mr. Sc
heepers
for the applicant submitted that in terms of PIE the first
respondent is an unlawful occupier which is defined as follows:
“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 provision of the Interim
Protection of Informal Land Rights
Act (131 of 1996)”. I agree
with this submission
Conclusion;
I am satisfied
that the
first
respondents point
in
limine
should be rejected.
I find that this court has in fact
jurisdiction to adjudicate the application.
Accordingly
I find that the applicant should succeed with her application for
the eviction of the first respondent and any other unlawful
occupants on the said farm and I make the following order:
An order for the
eviction of the
first
and further respondents, and all those occupying through them, from
Portion 3 of the Farm MOEILYKHEID 129 JT, Belfast, Mpumalanga.
An order directing
the
first
and further respondents and all those occupying through them to
vacate the property within 14 days from the date of this
order.
If the respondents
have not vacated the property after the expiry of the
14
days supra, the sheriff shall be authorized and required to carry
out the eviction by removing, the respondents and their property
and/any other unlawful occupants occupying through him.
Cost of this
application
to be paid by the first respondent.
________________________________
A. B. BAM
Acting Judge of the High Court
Applicant
Counsel:
Mr. Scheepers
Attorney
on record:
Grutter & Grobbelaar Attorneys
Tel: 012 342 8122
Arcadia
Pretoria
Respondent
Counsel:
Mr
.
Barnard
Attorney
on record:
Mpho Mashiloane Attorneys
c/o Mushwana Incorpotated
Pretoria
Tel: 012 323 1898
Ref: M Mushwana/pm/civ/m0239/09