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2024
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[2024] ZALMPPHC 83
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Molokomme and Others v Fetakgomo Tubatse Local Municipality and Another (7127/2021) [2024] ZALMPPHC 83 (2 August 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7127/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO THE
JUDGES: NO
(3) REVISED
DATE: 2/8/2024
SIGNATURE:
In the matter between:
PHATHI
ELEX MOLOKOMME
First
Applicant
CINCINATIA
MASUPYANE KGAGARA
Second
Applicant
GERRESON
KODIBONA
Third
Applicant
And
FETAKGOMO
TUBATSE
LOCAL
MUNICIPALITY
First
Respondent
SHERIFF
OF THE COURT, PRAKTISEER
Second
Respondent
JUDGEMENT
GAISA AJ
INTRODUCTION
[1]
This is an application for the reconsideration and
setting aside, alternatively variation, of an eviction order granted
by the high
court on 12 October 2021 under case number 7127/2021. The
eviction order was obtained by the First Respondent (“the
municipality”)
against the Applicants and other occupiers of
portions 9, 10 and 11 of the farm Aapiesdoorndraai 298 KT.
[2]
The Applicants contend that they were not served
with the original eviction application and only became aware of the
order when
served with it on 30 January 2023. They argue that the
order was erroneously granted in their absence and should be
reconsidered
in terms of Rule 6(12)(c) of the Uniform Rules of Court.
[3]
The First Respondent opposes the application,
arguing that proper service was effected and that the Applicants have
no valid defence
to the eviction. This court appreciates both
counsels for their insightful heads of argument which assisted this
court.
BACKGROUND
[4]
The First Respondent obtained an eviction order on
12 October 2021 against the illegal occupiers of portions 9, 10, and
11 of farm
Aapiesdoorndraai 298 KT. The Applicants were not
specifically named in the order but fell under the description of
"any other
illegal occupant occupying portions 9, 10 and 11 of
farm Aapiesdoorndraai 298 KT.”
[5]
The Applicants claim they only became aware of the
eviction order when served with it on 30 January 2023. Subsequently,
they brought
an urgent application to stay the execution of the order
pending this application for reconsideration. The stay order was
granted
on 28 February 2023.
[6]
The Applicants contend they have Permission to
Occupy (PTO) certificates from the Ba Bina Nare Ba Kgwete Traditional
Council for
portion 10 of the farm. The First Respondent disputes the
validity of these PTOs.
[7]
The key events in this matter occurred as follows:
7.1. 2021:
7.1.1. October 12, 2021:
Fetakgomo Tubatse Local Municipality (First Respondent) obtains an
eviction order granted by the high court,
against illegal occupants
of portions 9, 10 and 11 of Farm Aapiesdoorndraai 298 KT.
7.1.2. October 15, 2021:
The Sheriff allegedly serves the eviction order by affixing copies to
structures and billboards on the
property.
7.2. 2023:
7.2.1. January 30, 2023:
The applicants (Molokomme, Masupyane, and Kodibona) claim they were
served with the eviction order for
the first time.
7.2.2. February 3, 2023:
7.2.2.1.
Applicants consult with their attorneys.
7.2.2.2.
Applicants' attorneys contact the Sheriff's office
requesting copies of the application.
7.2.2.3. Applicants'
attorneys send a letter to First Respondent's attorneys requesting
copies of all pleadings and an undertaking
to stay execution of the
order.
7.2.3. February 7, 2023:
First Respondent's attorneys respond, providing an invoice for R8,481
for copies and stating they have
no instructions to stay the
execution.
7.2.4. February 20, 2023:
The applicants file an urgent application to stay the execution of
the eviction order (Part A) and for
reconsideration of the order
(Part B).
7.2.5. February 23, 2023:
First Respondent files notice of intention to oppose.
7.2.6.
February 24, 2023: First Respondent files
answering affidavit and heads of argument.
7.2.7.
February 28, 2023:
7.2.7.1.
The matter was heard before the high court.
7.2.7.2. Court grants
order staying execution of eviction order pending determination of
Part B.
7.2.7.3. Costs reserved.
7.2.8. March 1, 2023: The
original 30-day period for applicants to vacate given in the eviction
order would have expired.
[8] This chronology
highlights the key events rather than an exhaustive list and timeline
of the case as presented in the court
documents.
ISSUES FOR
DETERMINATION
[9] The main issues for
determination are:
9.1.
Whether the requirements for reconsideration under
Rule 6(12)(c) have been met;
9.2.
Whether the original eviction order was
erroneously granted in the Applicants' absence;
9.3. Whether the First
Respondent followed the correct procedure under the Prevention of
Illegal Eviction from and Unlawful Occupation
of Land Act 19 of 1998
(PIE Act);
9.4. Whether the
municipal council properly authorized the eviction application;
9.5. Whether the
Applicants have established a valid right to occupy the land.
[10] Rule 6(12)(c) of the
Uniform Rules of Court provides that a person against whom an order
was granted in their absence in an
urgent application may, by notice,
set down the matter for reconsideration of the order.
[11]
Section 4 of the PIE Act sets out the procedure
for eviction of unlawful occupiers, while Section 6 deals
specifically with evictions
by organs of state.
[12]
The Municipal Systems Act 32 of 2000 requires
municipal council decisions to be in writing and properly delegated.
ANALYSIS
[13]
Reconsideration under Rule 6(12)(c)
13.1.
For reconsideration under Rule 6(12)(c), the
Applicants must show that the order was granted in their absence and
that there are
grounds to reconsider it. The Applicants claim they
were not served with the original application. The First Respondent
contends
that service was effected by affixing notices to structures
on the property on 15 October 2021.
13.2.
There is a factual dispute regarding service that
cannot be resolved on the papers. However, even if the Applicants
were not personally
served, the method of service employed by
affixing notices was reasonably calculated to bring the proceedings
to their attention
as occupiers of the property.
13.3.
Nevertheless, given the serious nature of an
eviction order and the constitutional right to housing, I am inclined
to grant reconsideration
to ensure the matter is ventilated.
[14]
Procedure under
the PIE Act
14.1. The Applicants
argue that the First Respondent improperly used Section 5 of the PIE
Act (for urgent interim evictions) instead
of Section 6 (for
evictions by organs of state) to obtain a final eviction order.
14.2. This is a valid
point. As an organ of state, the municipality should have proceeded
under Section 6.
14.3. Section 6 requires,
among other things, that the court consider:
14.3.1. The circumstances
under which the unlawful occupier occupied the land;
14.3.2. The period the
unlawful occupier and their family have resided on the land;
14.3.3. The availability
of suitable alternative accommodation or land.
14.4. The original
application did not adequately address these factors. This procedural
defect is significant and warrants the
setting aside of the eviction
order.
[15]
Authorisation of the eviction application
15.1.
The Applicants contend that no municipal council
resolution or delegation of authority authorising the eviction
application was
provided. The First Respondent has not directly
addressed this point or provided evidence of proper authorisation.
15.2.
This is a serious omission on the part of the
First Respondent. Under the Municipal Systems Act, a decision to
institute legal proceedings
should be authorised by the municipal
council or properly delegated. The failure to provide evidence of
such authorisation is a
further defect in the original proceedings.
15.3.
The
Supreme Court of Appeal (“SCA”) in
Ganes
and Another v Telecom Namibia Ltd
[1]
emphasised
the importance of proper authorisation for litigation brought on
behalf of juristic persons.
15.4.
In paragraph 19, the SCA stated:
"It is the
institution of the proceedings and the prosecution thereof which must
be authorised."
15.5.
The court further held that where proceedings are
instituted by attorneys purporting to act on behalf of a juristic
person, there
is a presumption that such proceedings are authorised,
but this presumption can be rebutted (para 19).
15.6.
However, in the present case, the eviction
application was not brought by an attorney but rather by Ntshwane
Walter Phala, who did
not identify himself as an attorney in the
founding affidavit.
15.7.
The applicants argue that Phala failed to attach
any Municipal Council resolution or delegation of powers authorising
him to bring
the application on behalf of the municipality. This
raises serious questions about whether the eviction application was
properly
authorised.
15.8.
The SCA in
Ganes
supra
also
clarified in the same paragraph 19 that Rule 7 of the Uniform Rules
of Court provides a procedure to be followed by a respondent
who
wishes to challenge the authority of an attorney who instituted
motion proceedings on behalf of an applicant. However, this
procedure
is not applicable in the present case, as an attorney did not bring
the eviction application.
15.9.
The municipality must prove that proper
authorisation existed for bringing the eviction application. Based on
the documents provided,
the municipality does not appear to have done
so. The applicants argue there is no evidence of a municipal council
resolution or
delegation of powers authorising the application, as
required by the Municipal Systems Act. The municipality's deponent
claims
authority but does not provide supporting documentation.
15.10.
Failure to prove proper authorisation could
potentially nullify the entire eviction proceedings. The
Ganes
case established that the institution
and prosecution of proceedings must be authorised, not just the
deponent's authority to make
an affidavit.
15.11.
If the municipality cannot demonstrate the
eviction application was properly authorised by council resolution or
delegation, this
could be grounds for the court to reconsider and set
aside the original eviction order.
15.12.
Despite numerous opportunities to provide the
required proof, the municipality has failed to prove that a valid
council resolution
or delegation of powers properly authorised the
eviction application. This failure renders the entire eviction
proceedings null
and void.
15.13.
At the risk of repeating myself - because counsel
for the municipality argued this point - I must give clarity that in
the present
matter, the applicants were not required to utilise Rule
7 of the Uniform Rules of Court to challenge. Phala's authority to
bring
the original eviction application on behalf of the
municipality. Rule 7 provides a procedure for challenging,
inter
alia
, the authority of an attorney who
has instituted proceedings on behalf of a party. However, Phala was
not an attorney but rather
a municipality employee and representative
who deposed to the founding affidavit in the eviction application.
15.14.
The applicants are instead raising a more
fundamental challenge to whether the original eviction application
was properly authorised
by the municipal council, as required by the
Municipal Systems Act.
15.15.
This is a substantive challenge to the authority
to institute the proceedings, not merely to the authority of a
particular attorney.
As such, the
onus
falls on the municipality to prove that
a valid council resolution or delegation of powers properly
authorised the eviction application.
The applicants were correct in
raising this issue directly rather than through the Rule 7 procedure,
which is not applicable in
these circumstances.
[16]
Applicants' right to occupy
16.1.
The Applicants claim a right to occupy based on
PTO certificates from a traditional council. However, they
acknowledge they are
not the owners of the land. The First Respondent
disputes the validity of these PTOs, arguing the traditional council
had no authority
to grant permission for municipal-owned land.
16.2.
While the PTOs may have given the Applicants a
subjective belief in their right to occupy, objectively, they do not
establish a
legal right against the municipality as the registered
owner of the land. The traditional council's authority to grant such
permissions
has not been established.
CONCLUSION
[17]
The cumulative effect of the procedural defects in
obtaining the original eviction order – namely, the use of the
incorrect
section of the PIE Act, the lack of evidence of proper
municipal authorisation, and the dispute over service - leads me to
conclude
that the order should be reconsidered and set aside.
[18]
However, this does not mean that the Applicants
have established a right to occupy the land. The First Respondent may
still be entitled
to evict the Applicants. Still, it must do so
following the correct procedures under Section 6 of the PIE Act, with
proper municipal
authorisation, and ensuring adequate service and
opportunity to oppose.
ORDER
[19]
Considering the above, the following order is
made:
19.1. The eviction order
granted on 12 October 2021 under case number 7127/2021 is hereby set
aside.
19.2. The first
respondent is ordered to pay the applicants' costs of this
application (including both Parts A and B).
GAISA AJ
ACTING JUDGE OF THE
HIGH COURT, POLOKWANE.
LIMPOPO DIVISION
APPEARANCES
FOR
APPLICANTS:
ADV
P MTHOMBENI
INSTRUCTED
BY:
GILBERT
MOTEDI ATTORNEYS INC.
FOR
1
ST
RESPONDENT:
ADV.
M.M. RESKY
INSTRUCTED
BY:
NOKO
MAIMELA INCORPORATED ATTORNEYS
DATE
OF HEARING:
19
March 2024
DATE
OF JUDGEMENT:
2
August 2024
[1]
2004
(3) SA 615
(SCA)