Dihlabeng Local Municipality v Makhotsa and Others (569/2005) [2005] ZAFSHC 63 (22 September 2005)

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[2005] ZAFSHC 63
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Dihlabeng Local Municipality v Makhotsa and Others (569/2005) [2005] ZAFSHC 63 (22 September 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 569/2005
In
the matter between:
DIHLABENG
LOCAL MUNICIPALITY
Applicant
and
NTHABISENG
MAKHOTSA
First
Respondent
MMAPULE
MASEKO
Second
Respondent
JEREMANE
MOFOKENG
Third
Respondent
RAMADIELA
DLOMO
Fourth
respondent
MAHLAPANE
HLAPANE
Fifth
Respondent
_____________________________________________________
HEARD
ON:
15
SEPTEMBER 2005
_____________________________________________________
JUDGMENT
BY:
BLOEM
AJ
_____________________________________________________
DELIVERED
ON:
22
SEPTEMBER 2005
_____________________________________________________
[1] The
applicant is a local municipality. The five respondents are persons
who are alleged to reside on a piece of land within the
applicant’s
jurisdiction. That piece of land is owned by the applicant. I shall
hereinafter refer to that piece of land as “the
site”. On 15
February 2005 the applicant launched an application for the eviction
of “the respondents and all unlawful occupiers
and/or occupants”
from the site. I shall hereinafter refer to the “unlawful
occupiers and/or occupants” as “the unlawful
occupiers”.
[2] The background of
this application is set out in the affidavit of Vuyo Peach, the
applicant’s legal advisor and Mantiti Mokoena,
who is not a
respondent but a person who resides on the site. She said that by
virtue of being an occupier of the site she was “obliged
to
represent [her] interest and those of other co-occupiers”.
Although she claimed to represent the respondents, there was no
indication that she was authorised to represent the other unlawful
occupiers. The first, fourth and fifth respondents confirmed
the
correctness of the allegations contained in Ms Mokoena’s affidavit
insofar as they relate to the respondents.
[3] From the evidence it
is apparent that on 29 August 2004 the respondents held a meeting
with members of the community at a local
stadium. At that meeting
sites were allocated to residents who claimed to have no
accommodation. After that meeting persons started
occupying the
site. It is not in dispute that as at April 2005 there were more
than two hundred households on the site. Ms Mokoena
claimed that the
unlawful occupiers are on the site because some of them were evicted
from farms to which they could not return,
some could not pay the
rental in respect of the houses or rooms in which they lived before
they occupied the site and some had to
leave their homes because
their families became too big to accommodate all of them. These
averments are not disputed by the applicant.
The unlawful occupiers
are accordingly genuinely homeless.
[4] On 15 February 2005
the applicant launched this application for the eviction of the
respondents and the other unlawful occupiers
from the site. Without
notice and in the absence of the respondents or any of the other
unlawful occupiers the applicant sought
and on 24 February 2005
obtained an order from Hattingh J in the following terms:
“
IT
IS ORDERED THAT:
1. This Honourable
Court effects service of a written notice of these proceedings as
more fully appears from annexure “D” hereto
upon the respondents
in terms of the provisions of Section 4(2) of the Prevention of
Illegal Eviction from an Unlawful Occupation
of Land Act No. 19 of
1998.
2. The service of the aforesaid notice
upon the respondents be effected by the Sheriff of the district of
Ficksburg as prescribed
by the rules of this Honourable Court as
envisaged in Section 4(3) of the Prevention of Illegal Eviction from
an Unlawful Occupation
of Land Act, Act 19 of 1998.
3. The Registrar of
this Court be ordered to enroll the application for hearing on the
17
th
March 2005 at 09h30 when applicant will pray for a
rule
nisi
to be granted against the respondents in the following terms:
3.1 that the respondents and all
unlawful occupiers and/or occupants of the portion marked X
(hereinafter called site), as more fully
appear from annexure “A”
hereto and marked “illegally Occupied Erf” be ordered to:
3.1.1 forthwith
vacate the said site.
3.1.2 forthwith remove any building
and/or structures that the respondents erected upon the said erven
which were occupied by the
respondents on the aforesaid site.
3.2 that should the
respondents and/or other unlawful occupiers and/or occupants and/or
any of them refuse and/or neglect to vacate
the said site, and be
present thereupon on the 7
th
April 2005 that:
3.2.1 the Sheriff
for the district of Ficksburg is ordered to forthwith on 11
th
April 2005 or as soon as possible thereafter evict the respondents
and/or unlawful occupiers and/or occupants of the said site, as
still
may be present thereupon on the 11
th
April 2005 therefrom.
3.2.2 the
Sheriff of the district of Ficksburg is ordered to forthwith on 11
th
April 2005, or as soon as possible thereafter, demolish and remove
any buildings and/or structures erected upon the said site that
were
occupied by the respondents and/or unlawful occupiers and/or
occupants and for this purpose to solicit the assistance of the
South
African Police Service or whom ever in the opinion of the Sheriff for
the district of Ficksburg may be able and capable to
assist him to so
demolish and remove the aforesaid buildings and/or structures from
the said site so as to ensure that such buildings
and/or structures
be demolished and removed therefrom.
3.2.3 the Sheriff of the district of
Ficksburg is ordered, should it become necessary, to request this
Court in writing to authorize
any person, including but not limited
to the South African Police Services, for the district of Ficksburg
to assist the Sheriff for
the district of Ficksburg to comply with
the order for the eviction of the respondents and/or unlawful
occupiers and/or occupants
of the said site and to demolish and/or
remove such buildings and/or structures as may still be present upon
the said site in the
presence of the Sheriff for the district of
Ficksburg and subject to such conditions as the Court may determine.
4. The respondent
and any other occupiers of the land pay the costs of this application
including any costs incurred by the eviction
of persons or buildings
therefrom.”
[5] The
notice of motion, founding affidavits and the order which was issued
on 28 February 2005 (hereinafter referred to as “the
interim
order”) were thereafter served on the respondents on 1 March 2005.
Notice of intention to oppose the application was delivered
on 15
March 2005. The answering affidavits, deposed to by Ms Mokoena and
the first, fourth and fifth respondents, were delivered
on 13 April
2005. The applicant’s replying affidavit was delivered on 26 July
2005. After four postponements the application
was heard by me on 15
September 2005. At the conclusion of the hearing I requested Mr.
Motloung, counsel for the applicant, and
Ms Pretorius, attorney for
the respondents, if she deemed it necessary, to file supplementary
heads of argument on:
5.1 whether
the interim order was not prematurely sought and granted;
5.2 whether
I could evict the “unlawful occupiers and/or occupants” who were
not given notice of the proceedings to evict them;
and
5.3 whether
I could evict the respondents and the “unlawful occupiers and/or
occupants” despite the fact that there was no evidence
regarding
the availability of suitable alternative accommodation or land.
[6] I
have been furnished with the applicant’s supplementary heads of
argument. The respondents have decided not to reply to the
applicant’s supplementary heads of argument. I will deal with each
of the above headings hereunder.
The
interim order
[7] Although
paragraph 3 of the interim order stated that on the date of the
hearing the applicant “will pray for a
rule
nisi
to be granted against the respondents”, it did not include a
rule
nisi
directing the respondents to show cause why they should not be
evicted from the site or why they should not remove their buildings
or structures from the site. The application was accordingly argued
on the basis that the applicant sought a final order in the
terms set
out in paragraphs 3.1 and 3.2 of the interim order.
[8] As
pointed out above, on 24 February 2005 Hattingh J authorised the
service of the notice contemplated in section 4(2) of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act, 1998
(Act No. 19 of 1998) (hereinafter referred to as “the
Act”).
Section 4(2) of the Act requires that notice of eviction proceedings
should be effected on the unlawful occupier at least
fourteen days
before the hearing of such proceedings. In terms of section 4(5) of
the Act that notice must:
(a) state that
proceedings are being instituted for an order for the eviction of the
unlawful occupiers;
(b) indicate on what date
and at what time the court will hear the proceedings;
(c) set
out the grounds for the proposed eviction; and
(d) state
that the unlawful occupier is entitled to appear before the court and
defend the case and, where necessary, has the right
to apply for
legal aid.
[9] The
notice which was attached to the founding affidavit as annexure “D”,
did not comply with the peremptory provisions of
section 4(5)(b)(c)
and (d) in that it did not indicate the date and time of the hearing
of the main application, set out the grounds
for the proposed
eviction and state that the respondents and the other unlawful
occupiers were entitled to appear before the court
and defend the
case and informing them of their right to apply for legal aid.
[10] I
refer to
Cape
Killarney Property Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA) wherein Brand AJA (as he then was) stated at
paragraph [14] on page 1228 that, in High Court proceedings for
eviction by way
of application, the date of the hearing of the
application will be determined only after all the papers on both
sides have been served.
It follows that it is only at that stage
that the section 4(2) notice can be authorised and directed by the
Court. The section
4(2) notice was authorised and directed by this
court before the delivery of the opposing and replying affidavits and
before the
date of the hearing was known.
[11] It is not necessary
for me to deal with this aspect of the case any further because of
the conclusion at which I arrive and secondly
because the respondents
have, throughout these proceedings been represented by the
Bloemfontein Justice Centre. They cannot, and
they have not, claimed
that they have been prejudiced by the applicant’s apparent failure
to comply with the provisions of section
4(2) as read with paragraph
4(5) of the Act.
Notice
or absence thereof of the eviction proceedings
[12] The
applicant has served the application papers and the interim order on
the respondents. Three of the five respondents opposed
the
application but all five respondents were represented herein. The
applicant wanted relief not only against the respondents.
It also
wanted the eviction of “other unlawful occupiers and/or occupants”.
It is not disputed that the application papers
were not served on
those unlawful occupiers. The applicant also did not serve a notice
in terms of section 4(2) of the Act on any
one of those unlawful
occupiers.
[13] During the hearing
Mr. Motloung submitted that the site is a confined area and that the
persons who occupy the site are identifiable.
There was no
explanation from the applicant why there was no attempt to identify
and to join the other unlawful occupiers as co-respondents.
[14] It
is a trite principle of our law that a person with a direct and
substantial interest in the outcome of a case should be afforded
an
opportunity to be heard in those matters. In
Amalmagated
Enigneering Union v Minister of Labour
1949 (3) SA 637
(A) at 651 the following is stated:
“
It
was rather a subtle reasoning, which helped the Court to do what it
no doubt regarded as substantial justice in the peculiar
circumstances
of that case, while at the same time enabling it to
stand firm on the two essential principles of law that had to be
borne in mind,
viz. (1) that a judgment cannot be pleaded as
res
judicata
against someone who was not a party to the suit in which it was
given, and (2) that the Court should not make an order that may
prejudice
the rights of parties not before it.”
[15] Rule
6(2) of the Uniform Rules of Court has also not been complied with.
It provides that where it is necessary or proper to
give any person
notice of an intended application, the notice of motion shall be
addressed to both the registrar and such person.
Section 4 of the
Act has also not been complied with in respect of the other unlawful
occupiers in that they were not given notice
of the eviction
proceedings in terms of section 4(2) of the Act.
[16] Since
the unlawful occupiers have not been notified of the applicant’s
application to court to evict them, and since there
was no evidence
indicating that the pending application “is well known amongst all
the residents” of the site, I find myself
unable to make an order
evicting them from the site.
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at paragraph [27]
Availibility
of suitable alternative accommodation or land
[17] To
be successful in an application for eviction a municipality has to
establish that the occupation is unlawful and the structures
are
either unauthorised, unhealthy or unsafe. Once those facts have been
established, the court may then grant an eviction order
if it is just
and equitable to do so. Ms Pretorius has readily conceded that the
respondents’ occupation is unlawful and that
they live under unsafe
conditions without running water or proper ablution facilities. The
erection of the structures in which they
live, has also not been
authorised by the applicant.
[18] In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) at 232 Sachs J said that:
“
... 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 s 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 account of all relevant circumstances, including the manner in
which occupation was effected,
its duration and the availability of
suitable alternative accommodation or land.”
[19] Mr.
Motloung submitted “that there is no need to find alternative
accommodation if a person is an unlawful occupier for less
than six
months in terms of section 4(7) of PIE”. For that submission he
relied on
Ndlovu
v Ngcobo
;
Bekker
and Another v Jika
2003 (1) SA 113
(SCA) wherein Harms JA pointed out at 121 J – 122 A
that in terms of section 4(6) of the Act unlawful occupiers who have
occupied
the land for less than six months have less rights than
unlawful occupiers who have occupied the land for more than six
months.
(Section 4(7). The reliance on that case is, with respect,
misplaced because this is an application by a municipality, an organ
of state, for the eviction of unlawful occupiers. Section 6 of the
Act provides for evictions at the instance of organs of state.
In
terms of that section, which is applicable to the facts of this case,
the court may grant an eviction order if it is just and
equitable to
do so after considering all the relevant circumstances.
[20] Section
6(3) of the Act provides that in deciding whether it is just and
equitable to grant an order for eviction, the court
must have regard
to:
(a) the circumstances
under which the unlawful occupier occupied the land and erected the
building or structures;
(b) the period the
unlawful occupier and his or her family have resided on the land in
question; and
(c) the
availability to the unlawful occupier of suitable alternative
accommodation or land.
[21] Circumstances
under which the respondents occupied the land have been placed before
the court by Ms Mokoena. Those undisputed
facts have been dealt with
in paragraph 3 above. The respondents and the members of the
approximately 200 other households have
been on the land for not more
than five months before the application was launched. Facts covering
section 6(3)(a) and (b) of the
Act have been placed before the court.
There are no facts covering section 6(3)(c) of the Act.
[22] In
P
ort
Elizabeth Municipality v Various Occupiers
(
supra
)
Sachs J said the following at paragraphs 28 and 29 thereof:
“
[28] Section
6(3) states that the availability of a suitable alternative place to
go to is something to which regard must be had,
not an inflexible
requirement. There is therefore no unqualified constitutional duty on
local authorities to ensure that in no circumstances
should a home be
destroyed unless alternative accommodation or land is made available.
In general terms, however, a court should
be reluctant to grant an
eviction against relatively settled occupiers unless it is satisfied
that a reasonable alternative is available,
even if only as an
interim measure pending ultimate access to housing in the formal
housing programme.
[29] The availability of suitable
alternative accommodation will vary from municipality to municipality
and be affected by the number
of people facing eviction in each case.
The problem will always be to find something suitable for the
unlawful occupiers without
prejudicing the claims of lawful occupiers
and those in line for formal housing. In this respect, it is
important that the actual
situation of the persons concerned be taken
account of. It is not enough to have a programme that works in
theory. The Constitution
requires that everyone must be treated with
care and concern; if the measures, though statistically successful,
fail to respond to
the needs of those most desperate, they may not
pass the test. In a society founded on human dignity, equality and
freedom, it cannot
be presupposed that the greatest good for the many
can be achieved at the cost of intolerable hardship for the few,
particularly
if, by a reasonable application of Judicial and
administrative statecraft, such human distress could be avoided. Thus
it would not
be enough for the municipality merely to show that it
has in place a programme that is designed to house the maximum number
of homeless
people over the shortest period of time in the most
cost-effective way. The existence of such a programme would go a long
way towards
establishing a context that would ensure that a proposed
eviction would be just and equitable. It falls short, however, from
being
determinative of whether and under what conditions an actual
eviction order should be made in a particular case.”
[23] Reference
is made to paragraph [56] in
Port
Elizabeth Municipality v Various Occupiers
(
supra
)
wherein Sachs J dealt with some of the duties and obligations which
municipalities have and the factors which they need to consider
before launching eviction proceedings.
[24] One
of the grounds upon which this application was opposed, was that the
applicant has failed to make suitable alternative accommodation
or
land available to the respondents and the other unlawful occupiers.
Save for stating simply that “... the applicant’s obligation
to
provide accommodation is limited. I submit further that the
respondents do not fall within this category”, the applicant did
not state what limited its obligation to provide accommodation to the
respondents and to the other unlawful occupiers. The applicant
furthermore did not deal with the availability, or lack thereof, of
suitable alternative land for the respondents and the unlawful
occupiers. The extent of the limitation is also not clear.
[25] The applicant was
the only party who could place evidence relating to the availability,
or lack thereof, of suitable alternative
accommodation or land before
the court. In this case the applicant did not take any action
between August 2004 when the unlawful
occupiers occupied the land and
15 February 2005 when the application was launched. Had the
applicant consulted with the unlawful
occupiers it probably would
have become aware of the nature and extent of their problems and it
(the applicant) would have informed
the unlawful occupiers of the
availability, or lack thereof, of suitable alternative accommodation
or land to the unlawful occupiers.
Although the applicant was aware
of the meeting which the respondents held on 29 August 2004 at which
the unlawful occupiers were
allocated sites by the respondents, the
applicant took no steps to listen to and consider the problems of the
unlawful occupiers
before it launched the present application. On
the facts of this case I have decided that it is not just and
equitable to order
the eviction of the respondents or the other
unlawful occupiers from the site. I accordingly cannot grant such an
eviction order.
[26] The outcome of this
application might have been different if it was established by the
applicant that all the unlawful occupiers
were aware of these
proceedings and if the applicant had dealt with the issue relating to
the availability, or lack thereof, of suitable
alternative
accommodation or land to the unlawful occupiers.
[27] Regarding
costs, the general rule is that costs follow the event. In other
words, the successful party should be awarded his
costs.
Skotnes
v South African Library
[1997] ZASCA 28
;
1997 (2) SA 770
(SCA). This rule should be departed from only where
good grounds for doing so exist. In my view, there are good grounds
for departing
from the general rule.
[28] In
her affidavit Ms Mokoena stated that “we are aware of the history
of that site. We even know that it was earmarked for
development”.
Unfortunately she did not state who she referred to when she used
the word “we”. However, what is clear is
that at least Ms
Mokoena and some of the respondents and perhaps some of the other
unlawful occupiers were aware that the applicant
earmarked the site
for development. It must also be pointed out that no development has
taken place on that site since the early
1980’s when the
applicant’s predecessor earmarked it for development. In my view,
the respondents should not be rewarded for
their unlawful conduct.
They did not deem it necessary to enter into negotiations with the
applicant prior to them unlawfully occupying
the site. Given the
circumstances of this case, I am of the view that each party should
pay its, his or her costs.
[29] In
all the circumstances the application is dismissed with each party to
pay its, his or her own costs.
______________
G.H.
BLOEM, AJ
On
behalf of applicant: Adv. S.E. Motloung
Instructed
by:
Qwelane,
Theron & Van Niekerk
BLOEMFONTEIN
On
behalf of respondents: L. Pretorius (Attorney)
Bloemfontein
Justice Centre
/sp