Mangaung Local Municipality v Occupiers of Land situated at Phase 3 of the Grasslands area, also known as Berman Square (3738/2003) [2005] ZAFSHC 42 (28 April 2005)

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[2005] ZAFSHC 42
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Mangaung Local Municipality v Occupiers of Land situated at Phase 3 of the Grasslands area, also known as Berman Square (3738/2003) [2005] ZAFSHC 42 (28 April 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 3738/2004
In
the matter between:
MANGAUNG
LOCAL MUNICIPALITY
Applicant
versus
THE
OCCUPIERS OF THE LAND SITUATED
Respondents
AT
PHASE 3 OF THE GRASSLANDS AREA,
ALSO
KNOWN AS BERMAN SQUARE
_____________________________________________________
CORAM:
VAN
COPPENHAGEN J
_____________________________________________________
HEARD
ON:
21
APRIL 2005
_____________________________________________________
JUDGMENT:
VAN
COPPENHAGEN J
_____________________________________________________
DELIVERED
ON:
28
APRIL 2005
_____________________________________________________
[1] Applicant is a
municipality established in terms of Provincial Notice 182 of 28
September 2000 and also in terms of chapter 7
of the Constitution of
the Republic of South Africa.
[2] Applicant in an
effort to comply with the terms of section 152 of the Constitution
read with
section 9
of the
Housing Act, No. 107 of 1997
, and
Local
Government: Municipal Systems Act, No. 32 of 2000
, particularly
chapter 5 thereof drafted and accepted an integrated development
plan.
In the execution of the
integrated development plan applicant
inter
alia
obtained land and is negotiating to obtain further land, so-called
Grasslands Housing Development Project, Phases 2 and 3. The
development
so envisaged entails the ultimate development for
low-cost housing.
Phase
2 was developed and 2831 erven were made available for occupation in
June 2004.
It was envisaged that
2814 erven, (the application for the establishment of township of
which was already submitted) could be developed
and be ready for
allocation to the landless, homeless and needy early in January 2005.
[3] The development of
Grasslands Phase 3 came a dead stop when the land was affectively
rendered a no go area as a result of an invasion
which started on the
23
rd
October 2004.
[4] Applicant
applies, having complied with the legally required procedural
procedures for the eviction of the persons who are the
invaders
and/or present unlawful occupiers of the land.
[5] A
summary of respondents reply to applicant’s application can be
found in the passage in paragraph 13 (at paragraph 8.2) of
the
opposing affidavit which proclaims:
“
The
applicant alleges that its Housing Sector Plan provides a
well-resourced guide to enable the applicant to achieve the objective
for the homeless.
I deny the allegation. I must say
that if this Housing Sector Plan gives the applicant the right to
evict destitute people like the
occupiers of Phase 3 of Grasslands,
it is not informed of the social economic realities within its
jurisdiction. I am convinced
that housing is a combination of
provision of land, shelter and services, I therefore understand that
none of this can be achieved
over a short period of time. But we
should not turn a blind eye to the fact that a basic need in South
Africa right now is access
to land. The Housing Sector Plan of the
applicant is centralised on the issue of housing as a combination of
provision of land,
shelter and services. The reality is that the
applicant cannot achieve all this at the same time. Many families
will remain homeless
if the applicant’s ambition is to build houses
for its inhabitants. I refer the above on report to the first
sentence of paragraph
8.1 of the founding affidavit, which reads as
follows:
“
Land
invasion of this nature seriously affects the applicant’s ability
to provide housing and services for the inhabitants.”
There is nowhere in the founding
affidavit access to land is mentioned. This goes against the
applicant’s objective of addressing
homelessness. The applicant is
confusing issues. It is either using the wrong strategy of
addressing homelessness to the masses
or is unwilling to deliver the
services in terms of the constitution.
In Phase 2 of the Grasslands
inhabitants were provided with land without shelters and social
services and not all of the Phase 2 was
electrified. The inhabitants
of Phase 2 understand that the municipality cannot do everything at
once. They can now be patient
with the process of housing
development.
The respondents in this case do not
demand shelter and social services from the applicant.
They
only demand a basic resource which is land and the others shall
follow.
This has been
aviable over the years. I don’t understand a sudden change of
strategy by the applicant to phase in a strategy
that is not going to
work.
An eviction of respondents in this
case is a clear indication that the applicant does not understand its
role as the State organ.
The applicant has an obligation to
fertilise the grounds for development in the area of social economic
rights thereby facilitating
the process of development whereby third
parties are involved. But in this case the applicant is the one that
is caught in the middle.
Instead of bringing solutions it is part of
the problem.”
[6] The application is,
for the purpose of the Prevention of Illegal Eviction from Unlawful
Occupation of Land Act, Act 19 of 1998
(commonly referred to as PIE),
an organ of State.
The
statutory provision regulating eviction of unlawful occupiers by an
organ of State is to be found in section 6 of PIE which reads:
“
6.
(1) An
organ of State may institute proceedings for the eviction of an
unlawful occupier from land which falls within its area of
jurisdiction, except where the unlawful occupier is a mortgagor and
the land in question is sold in a sale of execution pursuant
to a
mortgage, and the court may grant such an order if it is just and
equitable to do so, after considering all the relevant circumstances,
and if –
(a) the consent of that organ of state
is required for the erection of a building or structure on that land
or for the occupation
of the land, and the unlawful occupier is
occupying a building or structure on that land without such consent
having been obtained;
or
it is in the public interest to grant
such an order.
(2) For the purposes for this section,
“public interest” includes the interest of the health and safety
of those occupying the
land and the public in general.
(3) In deciding whether it is just and
equitable to grant an order for eviction, the court must have regard
to -
the circumstances under which the
unlawful occupier occupied the land and erected the building or
structure;
the period the unlawful occupier and
his or her family have resided on the land in question; and
the availability to the unlawful
occupier of suitable alternative accommodation or land.”
Commenting on the quoted
statutory provision Sachs J says:
“
Simply
put, the ordinary prerequisites for the municipality to be in a
position to apply for an eviction order are that the occupation
is
unlawful and the structures are either unauthorised, or unhealthy or
unsafe. Contrary to the pre-constitutional position, however,
the
mere establishment of these facts does not require the court to make
an eviction order. In terms of section 6, they merely trigger
the
court’s discretion. If they are proved, the court then may (not
must) grant an eviction order if it is just and equitable
to do so.
In making its decision it must take into account of all relevant
circumstances, including the manner in which occupation
was effected,
its duration and the availability of suitable alternative
accommodation or land.”
- in
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
[2004] ZACC 7
;
2005 (1) SA 217
(CC) 232 B – D.
[7] It was common cause
that the respondent, if they did not invade the land known as
Grasslands Phase 3 then at least took occupation
thereof as from the
23
rd
October 2004 without the consent of the applicant.
Request by respondent to
discuss the unlawful conduct were turned down by many of the
respondents, in fact an invitation by applicant
for mediation later
on was also snubbed by them.
Without (almost)
exception none of the unlawful occupiers were without some form of
shelter prior to their unlawful occupation of
the land in Grasslands
Phase 3. The main complaint was one of “landlessness”.
The application for the
eviction was commenced on the 1
st
November 2004 i.e. only eight days after the first unlawful occupiers
moved onto the land.
The invasion of the land
has put a dead stop to the proposed and envisaged development of the
land for housing, thereby depriving
hundreds if not thousands of
persons who are similarly landless and needy but who are patiently
waiting their turn on existing waiting
list to receive a land
allocation in Grasslands Phase 3.
[8] Applicant conceded
that no land was available to relocate the unlawful occupiers if the
eviction should be ordered.
[9] On the facts in this
matter (compare
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
supra
p. 323) it must follow that the respondents are legally to blame for
the predicament in which they find themselves, many of them
could by
reason of the fact that they are on the waiting list for land, had
they but bided time, have been on land legally allocated
in
Grasslands Phase 3 to them. (Compare
GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v GROOTBOOM AND OTHERS
2001 (1) SA 46
(CC) paragraph 10.)
[10] I conclude that it
is, on the facts just and equitable that respondents be evicted.
[11] Applicant
did not move for an order for costs.
[12] The
following order to issue:
1. That all unlawful
occupiers and/or occupants of any portion of the land situated at
Phase 3 of the Grasslands area, also known
as Berman Square,
Bloemfontein as more fully appear from annexure “X1” hereto and
marked invaded area be ordered to:
Vacate the said area
and/or land on or before the 1
st
June 2005.
1.2 Remove the buildings
and/or structures that the respondents erected upon the said land
and/or area that were occupied by the respondents
on the aforesaid
land on or before the 1
st
June 2005.
That should the
respondents and/or unlawful occupiers and/or occupants and/or any of
them refuse and/or neglect to vacate the said
land and/or area
and/or still be present thereon the 2
nd
June 2005 that
the sheriff for the
district of Bloemfontein is ordered to forthwith on the 2
nd
June 2005 or as soon as possible thereafter to evict the
respondents and/or the unlawful occupiers and occupants of the said
land and/or area or so many of them as still may be present thereon
on the 2
nd
June 2005 there from.
that the sheriff for
the district of Bloemfontein is ordered to forthwith on the 2
nd
June 2005 or as soon as possible thereafter, demolish and remove
any building or structure erected upon the said land and/or
area
that were occupied by any such respondent and/or unlawful occupier
and/or occupant and for this purpose to solicit the assistance
of
the South African Police Services or whom ever in the opinion of
the sheriff for the district of Bloemfontein, may be able
and
capable to assist him to so demolish and remove the aforesaid
buildings and/or structures from the said land and/or area
so as to
ensure that such buildings and/or structures be demolished and
removed there from and
the sheriff for the
district of Bloemfontein is ordered to, should it become necessary,
to request this court in writing to authorise
any person,
including, but not limited to the South African Police Services for
the district of Bloemfontein to assist the sheriff
for the district
of Bloemfontein to carry out a order for the eviction of the
respondents and/or unlawful occupiers and/or occupants
of the said
land and/or area and to demolish and/or remove such buildings or
structures as may still be erected upon the said
land and/or in the
presence of the sheriff for the district of Bloemfontein and
subject to such conditions as the court may determine.
_______________________
G.
VAN COPPENHAGEN, J
On
behalf of applicant: Adv. P.J.T. de Wet
Instructed
by:
Naudes
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. R.J. Nkhahle
Instructed by:
Bloemfontein
Justice Centre
/sp