Umsobomvu Municipality v Maartins (905/2007) [2009] ZANCHC 29 (8 July 2009)

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[2009] ZANCHC 29
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Umsobomvu Municipality v Maartins (905/2007) [2009] ZANCHC 29 (8 July 2009)

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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case
Nr:
905/2007
Case
Heard:
22/05/2009
Judgment
delivered: 22/05/09
Reasons
supplied
:
08/07/2009
In
the matter between:
Umsobomvu
Municipality
APPLICANT
and
Blenkie
Maartins
RESPONDENT
Coram:
Henriques AJ
REASONS
FOR
JUDGMENT
Henriques
AJ:
This
matter
served
before me in the opposed motion court on 22 May 2009. On the morning
of the hearing, the respondent’s counsel, Adv van
Tonder, informed
me that he sought leave to withdraw as counsel. After considering
his application and the submissions of Mr
Motloung who appeared for
the applicant, I subsequently granted him leave to withdraw as I was
satisfied that the correspondent
attorney was aware of the date for
the hearing of the application.
After
hearing the argument of the Applicant’s Counsel, Mr Motloung, I
dismissed the application with costs including the costs
occasioned
on 9 May 2009.
Subsequently
on Friday, 26 June 2009 I received this file. The file had been
handed to my secretary by the Registrar and she was
advised that an
application for reasons in terms of Rule 49 (1)(c) had been served
and filed on the registrar’s office on 4
June 2009.
The
request for reasons was not brought to my attention
prior
to 26 June 2009, and the notice was merely placed in the file and
filed away.
On
receipt
of the file, on 26 June 2009, I requested a transcript of the
proceedings and this was provided to me on 2 July 2009.
TH
E
APPLICATION
:
The
applicant issued papers on 30 July 2007 in which it sought an order
in the following terms:-
“
That
the respondent be ordered forthwith to vacate the properties known
as Camp K11, W17 & E13, which form part of the remainder
of Erf
675 issued under Title Deed T1414/1963, Colesburg.
In the event of the
respondent failing to comply with paragraph 1 (one) above, the
sheriff, Colesburg is empowered and instructed
to enter onto the
properties, and forcibly evict the respondent, as well as any person
claiming occupation through him, from
the properties.
That
the respondent be ordered to pay the costs of the application.”
In
the
founding affidavit deposed to by its municipal manager, the
applicant alleged as follows:-
That
it was the registered owner of property T1414/1963 which was the
remainder of Erf 675. In support of this allegation the
applicant
attached
the
cover page of the Deed of Transfer as annexure ACM2 which merely
referred to the title deed number. No reference on annexure
ACM2
was made to the Erf or the camps referred to in paragraph 1 of the
notice of motion. The applicant did indicate that
the entire
document was available for inspection.
In
2003 it had established a dialogue with small farmers as it
intended to assist emerging/small farmers to utilize municipal

commonages. As a result a resolution was passed which allowed
different farmers to use the camps for their livestock. Reference

to this is to be found in annexure ACM11. Annexure ACM11 on page
30 of the papers refers to the availability of commonage
camps and
indicates which camps fell into which particular groups and which
were allocated to the various type of farmers.
No mention is made
of Erf 675 on this document. It is also apparent that the camps
which the Respondent used were designated
for emerging farmers and
the Kalahari kid project. He did
not
occupy
the camps designated for commercial farmers.
The
applicant also encouraged emerging farmers to establish an
association, which they did, to ensure that there was uniformity
in
respect of the application of benefits to farmers. Farmers were
also required to sign lease agreements.
W
hen
the emerging farmers failed to pay their dues, the applicant then
resolved to enter into agreements with individual small
farmers
under their association name. The emerging farmers were advised
that in order to gain access to camps they had to comply
with
certain requirements. These requirements were the following:
a lease agreement
must be signed;
produce proof of
identification; and
agree on a lease
amount payable.
The
applicant further alleges that in September 2004 the respondent had
brought his cattle to camp W17 but refused to be part
of the
association. The Applicant does not state whether the Respondent
occupied with or without its consent.
The
respondent appears to have approached the applicant’s manager for
strategic planning and administration, Jacobus Kapp,
to tender for
land at various times including in September 2005. He was informed
that land was only made available to members
of emerging/small
farmer’s association and that he should join an association.
Subsequently,
the Respondent sent a letter to the applicant on 7 February 2007 in
which he tendered for camps W17, K11 and E13
through his attorneys
C J Bower. He also made mention of the fact that his infrastructure
and livestock were on the camps.
The
applicant’s response
by way of letters dated 9 February, ACM6 and 2 March 2007, ACM7,
was to inform the Respondent of its decision to allocate the
camps
to the Small Farmers Association and that it was in the process of
concluding contracts with individual farmers in terms
of which they
would have rights of occupation. The letter further advised the
Respondent that his occupation of the camps meant
that the camps
could not be used and that he was refusing them access. He was
advised that his occupation was unlawful and
was once again advised
to join a small farmer’s association in order to be eligible for
allocation of camps.
The
respondent through his attorneys
by
way of a further letter dated 28 March 2007, advised the applicant
that he was not obliged to join the small farmers association,

would not vacate the camps and wanted a tender for the camps he
occupied.
Kapp
confirms by way of an affidavit commissioned on 1 August 2007, a
day after the papers were issued, his interactions with
the
Respondent. (I may add that the papers do not contain any details
relating to the occasions that the respondent had tendered
for the
land).
The
applicant
indicates
that the Respondent’s occupation of the camps is unlawful and
denies it the full use of the said property.
In
opposing the application for his eviction the respondent
raises
the following:-
he challenged the
validity of the resolution authorising the Municipal Manager to
depose to the founding affidavit;
he
alleges
that he has no personal knowledge of the Applicant’s ownership of
the property but does not dispute same but goes
on to allege that
ACM2 is meaningless;
the locus standi of
the applicant to bring these proceedings in that the applicant had
not established that it was the owner
of the property;
the
founding papers are not clear in relation to the leasing of the
commonages;
they do not stipulate when these commonages were first leased and
to whom;
the non joinder of
Thembinkosi Lennox Mbeqezi;
he
has been farming on the land since 1993 in terms of an agreement
with the applicant. Such agreement terminated and he has
remained
on the land throughout;
h
e
confirms that he refuses to be part of an association and has been
more than willing to enter a proper lease agreement with
the
applicant for the lease of the land for farming purposes;
he
farms
with
eighty head of cattle with his son.
In
reply the applicant denies that the Respondent has been farming on
the land since 1993 in terms of an agreement. It admits
that there
was a lease agreement in respect of the property which lapsed in
1996. Thereafter the property was leased on a month
to month basis
but such lease was not with the respondent. It further denies that
there was ever a lease with the respondent
in place which appears to
suggest that the respondent occupied without consent. For the first
time in reply, the Applicant alleges
that the Respondent is a
commercial farmer.
REASONS FOR JUDGMENT
It is trite that every
applicant must set out in its founding affidavit the material
allegations upon which it relies for the
relief sought. An
applicant will not be allowed to make out a case in reply when no
case was made out in the founding papers.
See
Erasmus
Superior Court Practice and National Council of SPCA v Openshaw
2008(5) SA 339, page 349, paragraph 29.
Our courts have held
that in motion proceedings the affidavits constitute both the
pleadings and evidence ….and that the issues
and averments in
support of the parties cases ought to appear clearly from the
founding affidavit. See in this regard
Transnet
v Rubenstein
2006 (1) SA 591
SCA at page 600,
Minister
of Land Affairs and Agriculture and Others v D & F Wevell
Trust and Others
2008 (2) SA 184
SCA at paragraph 44.
Rule 6 of the High
Court Rules also provides that the facts upon which an applicant
relies on, must be set out simply, clearly
and in chronological
sequence and without argumentative matter in the founding affidavit.
An applicant’s locus standi must
be established in the founding
affidavit and not in a replying affidavit.
In applications and or
actions for eviction, the provisions of the Constitution and a
number of statues affect the right to eject
an unlawful occupier of
land and these must be taken considered when proceedings are
instituted. The relevant statutes are inter
alia, the Extension of
Security of Tenure Act 62 of 1997 (ESTA) and the Prevention of
Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998
(PIE).
ESTA defines an
occupier as a person residing on land which belongs to another
person and who, has or on 4 February 1997 or thereafter,
had consent
or another right in law to do so, but excludes:
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 worked the land himself or herself and does not employ
any person who is not a member of his or
her family; and
a person who has an
income in excess of the prescribed amount.
There is a presumption
that the land occupied falls under the provisions of the Act, and an
applicant for the eviction of an unlawful
occupier, has to
allege
and
prove
that the Act does not apply.
See
Amler’s Precedent of Pleadings, 6
th
Edition, page 170.
In terms of the
judgment of Harms JA, in
Ndlovu
v Ngcobo
;
Bekker
and Another v Jika
2003
(1) SA 113
SCA, page 120 at paragraph 6 “
ESTA
protects persons who, at some stage or another, had consent or some
other right to occupy (basically) agricultural land
”.
PIE applies to the
eviction of all unlawful occupiers meaning persons who occupy land
without the express or tacit consent of
the owner or person in
charge or without any other right in law to do so. It does not apply
to persons who are occupiers in terms
of ESTA.
In my view in this
matter the papers that were drafted lacked essential averments for
the relief sought. In other words the applicant
did not make out a
case in its founding papers and Counsel who appeared sought to do so
in argument.
The papers contain no
allegations as to why the applicant was not required to comply
either with ESTA or PIE.
In light of the
presumption I have referred to earlier on, to my mind the applicant
ought to have in its founding affidavit stipulated
why it says ESTA
and PIE does not apply. In the event of ESTA and PIE not applying,
it ought to have made these essential allegations
in its founding
affidavit confirming that the applicant does not fall within the
parameters of either of these acts and thus
excusing it from having
to comply therewith.
From a reading of the
papers it is not clear:-
when precisely the
respondent took occupation of the land, whether this was with or
without consent and when his right to occupy
terminated;
whether he in fact
resides on the property, and whether there are any building or
structures;
whether he works the
land himself and does not employ a person who is not a member of
his or her family;
whether the
respondent was a commercial farmer (I was not referred to any
definition of a commercial farmer by the applicant
and this
allegation was raised for the first time in reply by the
applicant);
Mr Motloung who
appeared for the applicant indicated that the applicant was relying
on a vindicatory action and all that an applicant
need allege and
prove was its ownership of the movable or immovable property and
that the respondent was in possession of the
property at the time of
the institution of an action. However, it is not as simple as that,
as the right to vindicate has been
curtailed by the constitution and
the passing of legislation like ESTA and PIE.
During the course of
argument I also gained the impression that the applicant was trying
to remedy the problems it had with its
founding affidavit and the
lack of essential averments. This is evident from a reading of the
transcript. I refer to a few examples
hereinbelow.
During the course of
argument one of the issues I pertinently raised with Mr Motloung was
whether or not the property which belonged
to the applicant was
designated for commercial farming purposes. Mr Motloung eventually
conceded that it was not. (Page 6 of
the transcript).This then begs
the question as to how the respondent could then be considered to be
a commercial farmer.
I also enquired from
him whether consideration was given to PIE alternatively ESTA when
the papers were drafted. His response
was that the applicant had
considered ESTA and PIE and found that the respondent would not be a
person described in ESTA as he
was a commercial farmer. If that was
so, why were these allegations not made in the founding affidavit.
I then asked him as to
why PIE did not apply. From a reading of the transcript it is clear
that no satisfactory response was given.
When he was asked as to why
the respondent did not fall under the definition of an occupier he
was of the view that the definition
of PIE excluded an unlawful
occupier. When I pointed out to him that PIE applies to an unlawful
occupier his submission was
that his reading of the Act says
differently. When pressed by me he indicated that a person is an
unlawful occupier of the land
and is not a person who is protected
under PIE in terms of section 1. In addition the cases referred to
by Mr Motloung did not
support his argument.
At the end of his
argument, Mr Motloung requested an amendment to the initial relief
sought in the notice of motion. He indicated
that the applicant was
not occupying the property and therefore all he sought was an order
evicting the cattle from the premises.
This was not expressly
stated in the founding affidavit and this was not the relief sought
in the notice of motion. If that
was the case there would have been
no need for this application to have been brought in the first
instance. It appears that
this change of tack by the applicant was
to circumvent the obligation of the applicant to discharge the onus
that neither PIE
nor ESTA applied. This appeared to be somewhat of
an afterthought on the part of the applicant. If only the cattle of
the respondent
was on the premises why not simply have them removed
by means of the assistance of the relevant pound master in the area.
There
would thus not be a need to obtain an order for the eviction
of the respondent and/or all persons claiming occupation by through

or under him if he was not occupying the premises.
Given the lack of
necessary allegations in the founding papers I was thus constrained
to dismiss the application.
COSTS
A
perusal of the court file reveals the following
in relation to costs. The matter appears to have been enrolled for
hearing on 9 May 2008 on the opposed roll. On that date the
matter
was postponed
sine
die
and the costs occasioned by the adjournment were reserved. This was
pursuant to a formal application lodged by the Respondent
for an
adjournment. The matter was then enrolled for hearing on 5 December
2008 and was subsequently adjourned to 13 February
2009. On 13
February 2009 the matter was adjourned to the opposed roll for 22
May 2009 and the question of wasted costs was
reserved for later
determination.
When he addressed me
on costs Mr Motloung advised me that the only costs order that he
sought was in respect of the costs which
were reserved on 9 May 2008
(page 39 and 42 of the transcript). I had regard to the affidavit
in support of the application
for an adjournment on 9 May 2009 and
the supplementary heads of Mr Motloung in this regard. Having
considered the reasons for
the adjournment and having regard to the
unwritten practice in this division that dates are normally arranged
in consultation
with both the applicant’s and the respondent’s
attorneys and counsel, it was my considered view that the costs
occasioned
on 9 May ought to be paid by the applicant.
For the reasons I
have mentioned above it was my view that in light of the fact that
the applicant did not make out a proper case
for the relief sought,
costs ought to follow the result and it was for this reason that I
ordered the applicant to pay the costs
occasioned by the
application.
____________
_________
J I HENRIQUES
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Applicant:
Adv
Motloung
Instructed
by:
DuToit
- Bomela KIMBERLEY