Niewuwoudt and Others v Minister of Public Works; Minister of Public Works v Niewuoudt and Others (1511/2006) [2007] ZANCHC 65 (30 November 2007)

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[2007] ZANCHC 65
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Niewuwoudt and Others v Minister of Public Works; Minister of Public Works v Niewuoudt and Others (1511/2006) [2007] ZANCHC 65 (30 November 2007)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO.: 1511/2006
DATE
HEARD:
DATE
DELIVERED:30-11-2007
In
the matter between:
A
A NIEUWOUDT AND OTHERS
Applicants
and
THE MINISTER OF PUBLIC WORKS
Respondents
(leave to
appeal)
and
In the matter between:
THE MINISTER OF PUBLIC WORKS
Applicant
and
A A NIEUWOUDT AND OTHERS
Respondents
(application for leave to cross
appeal)
CORAM:
C.C WILLIAMS J:
J
U D G M E N T
WILLIAMS
J:
1. This is an application
for leave to appeal as well as an application for leave to
cross-appeal against my judgment in the main
application dated 17
August 2007 in which the following order was made:
“
a) With
respect to respondents W.H. Mostert and J.A. McDonald paragraphs 1.1,
1.2, 1.3 and 1.6 of the rule nisi issued on 8 December
2006 are
discharged.
b) Applicant
is to pay the costs of the two above-mentioned respondents.
c) Paragraphs
1.1, 1.2, 1.3 and 1.6 of the rule nisi of 8 December 2006 are
confirmed and made final as against the remainder of the
individual
respondents as per the amended annexure “A” to the Notice of
Motion.”
2. The applicants in the
application for leave to appeal are the individual respondents in the
main application with the exception
of Mr. W.H. Mostert and Mr. J.A.
McDonald. The application is directed against paragraph c) of the
order.
The application for leave
to cross-appeal by the applicant in the main application relates to
the position of Messrs. Mostert and
McDonald, i.e. paragraphs a) and
b) of the order. For the sake of convenience the parties are
referred to as in the main application
except for W.A. Mostert and
J.A. McDonald who will be referred to by name.
3. The
essence of the application for leave to appeal is that I erred in
finding that the previsions of the Prevention of the Illegal
Eviction
from and Unlawful Occupation of Land Act 19 of 1998,
(”PIE”)
does not apply to the individual respondents who used the structures
they had erected on the land in question as holiday homes.
In
the light of the recent judgment of the Supreme Court of Appeal in
Barnett
and Others v Minister of Land Affairs and Others
2007(11) BCLR 1214 (SCA), and specifically paragraphs 37 to 40
thereof, where the SCA found on very similar facts that PIE found
no
application, this argument consequently is without merit.
4. In argument before me,
Mr. Reinders, who appeared for the individual respondents, valiantly
persisted that I should have found
PIE to apply on the basis that the
applicant’s founding affidavit and the manner in which the
application was dealt with by the
applicant, were based on the
provisions of PIE. That if I had found in these circumstances that
PIE has application, the individual
respondents would have been in
the same position as W.H. Mostert and J.A. McDonald since I had also
found that section 4(2) of PIE
had not been complied with.
Alternatively, that if I had found that PIE had application, a probe
into whether it was just and equitable
to evict the individual
respondents would have been warranted.
5. This
argument is untenable. Whether or not PIE applied to the individual
respondents was a legal issue to be determined by the
Court. The
mere fact that the applicant chose to cover all the bases by dealing
with the application in terms of the provisions
of PIE does not and
cannot render PIE applicable in the circumstances
in
casu
.
6. The
further grounds of appeal contained in the notice of application for
leave to appeal were not argued before me and in any event
in the
light of the Barnett case
supra
are of no merit at all.
7. It follows then that
the application for leave to appeal should be dismissed with costs.
I do not regard it as unreasonable that
the costs include the costs
of two counsel.
8. The grounds raised by
the applicant in the application for leave to cross-appeal can
conveniently be dealt with as follows:
That
I erred in finding that W.H. Mostert and J.A. McDonald occupy their
structures on a permanent basis and that PIE therefore
has
application.
8.1.1 This argument with
regard to W.H. Mostert is somewhat puzzling. Mr. Arendse SC, who
appeared for the applicant in the main
application (and in these
applications for leave to appeal), conceded that W.H. Mostert is an
exception to the rest of the individual
respondents in that he and
his wife occupy their structure permanently. The argument now, in
the application for leave to cross-appeal,
is that W.H. Mostert has
not provided the court with sufficient particularity regarding the
circumstances surrounding his occupation
of the property, how long he
has occupied the property, etc on which the court could find that he
resided permanently.
8.1.2 This
is just not correct. The letter written by W.H. Mostert to the
applicant’s attorney, and from which I quoted an extract
on page 15
of the main judgment, states clearly that W.H. Mostert and his wife
had occupied the property for longer than six months
and that he is
68 years old and has no alternative accommodation. Mr. A.A.
Nieuwoudt, the deponent to the answering affidavit, also
makes the
allegation that W.H. Mostert resides permanently on the property.
During argument in the main application Mr. Arendse
argued in the
alternative that orders be granted as prayed for against all the
individual respondents save for W.H. Mostert and his
wife, with an
instruction that the 8
th
respondent (Kamiesberg Municipality) facilitate alternative
accommodation for them.
No mention was made, as
alluded to in the notice of application for leave to cross-appeal and
the heads of argument herein, that the
applicant had withdrawn its
application against W.H. Mostert, much less J.A. McDonald for that
matter.
8.1.3 The position with
regard to J.A. McDonald is somewhat different. Although J.A.
McDonald states that he resides permanently,
which is confirmed by
both A.A. Nieuwoudt and W.H. Mostert, he has not proved to be
entirely truthful. In his affidavit he claims
to have been appointed
as lighthousekeeper at Groenriviermond. This state of affairs has
been proven not to be true and Mr. Van
Niekerk SC, who appeared for
the individual respondents in the main application, readily conceded
this. The applicant had served
a rule 35(12) notice on him
requesting particularity regarding his appointment as
lighthousekeeper, which he ignored. J.A. McDonald
also occupies two
structures, no 33 and 34. He resides in one and rents the other out
as holiday accommodation. Although I had
found, that McDonald
resided permanently and was therefore protected by PIE, a Court of
appeal may reasonably, on these facts, make
an adverse finding or
order that the structure used as holiday accommodation be demolished.
8.2 The further ground of
appeal is that I erred in finding that section 4(2) of PIE had not
been complied with.
8.2.1 The
applicant seems to be laboring under the misconception that I found
that W.H. Mostert and J.A. McDonald did not receive
proper notice of
the proceedings in terms of section 4(2) of PIE. A proper reading of
the main judgment and particularly paragraphs
22 and 23 thereof, will
prove the opposite. What I did find is that the seventh and eighth
respondents, the Namaqua District Municipality
and the Kamiesberg
Municipality, did not receive proper notice in terms of section 4(2)
before the hearing. The proceedings on 8
December 2006 were not
merely a ruling on the procedure to be adopted or the manner of
service to be effected. The order of 8 December
included a
rule
nisi
calling upon the respondents to show cause,
inter
alia
why the individual respondents should not be evicted. As such the
rule
nisi
constituted substantive relief. See
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
2001(4) SA 1222 at 1228 F-H.
8.2.3 The
proceedings of 8 December 2006 were therefore
“proceedings”
contemplated in section 4(1) of PIE and as such the municipalities
having jurisdiction (seventh and eight respondents), should have
received notice thereof, at least 14 days before the hearing of the
proceedings. The municipalities were only served the papers
in the
main application after 8 December 2006. No notice in terms of
section 4(2) was served on the seventh and eight respondents.
The
applicant is incorrect in the contention that the
“proceedings”
only commenced on 21 June 2007, and there is therefor no merit in
this ground of appeal.
9. As far as the
application for leave to cross-appeal is concerned, Mr. Reinders, who
appeared for W.M. Mostert and J.A. McDonald,
indicated that these
respondents would abide the decision of the court.
The
following orders are made.
a) The application for
leave to appeal is dismissed with costs, which include the costs of
two counsel.
b) Application for
leave to cross-appeal to the Full Bench of this Division against
paragraphs a) and b) of the order in the main
application is granted
only in respect of the respondent J.A. McDonald.
_________________________
C.C
WILLIAMS
JUDGE
Counsel for
Applicant: Adv N Arendse SC (State Attorney, Cape Town) With Adv. J.
Krige
Counsel
for the Individual Respondents: Adv. Reinders