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2024
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[2024] ZAFSHC 299
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Setsoto Local Municipality v Various Individual Unlawful Occupiers and Intended Unlawful Occupiers of the Remaining Extent of Ficksburg Dorp Gronde 75, (Commonly Known as Peach Farm & Imperani Mountain in Ficksburg) and Others (5154/2023) [2024] ZAFSHC 299 (19 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
Yes/No
Case
no: 5154/2023
In the matter
between
SETSOTO
LOCAL MUNICIPALITY
APPLICANT
And
VARIOUS
INDIVIDUAL UNLAWFUL OCCUPIERS AND INTENDED UNLAWFUL OCCUPIERS OF
THE REMAINING EXTENT OF FICKSBURG DORP GRONDE 75,
(COMMONLY KNOWN
AS PEACH FARM & IMPERANI MOUNTAIN IN FICKSBURG)
1
ST
RESPONDENTS
BOIKETLONG
FORUM FICKSBURG
2
ND
RESPONDENT
PAPALI
RITTAH SESELINYANE
3
RD
RESPONDENT
MASUTUTSA
LIPHOTO
4
TH
RESPONDENT
SHIFT
CONSULTING
5
TH
RESPONDENT
HOUSING
DEVELOPMENT AGENCY
6
TH
RESPONDENT
DEPARTMENT
OF AGRICULTURAL & RURAL DEVELOPMENT, FREE STATE
7
TH
RESPONDENT
Neutral
citation:
Setsoto
Local Municipality v Various Individual Unlawful Occupiers and
Intended Unlawful Occupiers of the remaining extent of Ficksburg
Dorpgronde 75 (commonly known as Peach Farm & Imperani Mountain
in Ficksburg) and others
Coram:
PARKS AJ
Heard:
15August 2024
Delivered:
This judgment was handed down in court and
electronically by circulation to the parties’ legal
representatives via email and
release to SAFLII on 19 September 2024.
The date and time of hand-down is deemed to be 09H30 on 19 September
2024.
Summary:
Application in terms of Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) –
condonation
application, application to rescind a cost order and to
strike out affidavits.
ORDER
1
Any person forming part of the
first and second respondents including the third and fourth
respondent who might have taken occupation
of any home, dwelling and
abode and/or structure on the property commonly known as the Peach
Farm and Imperani Mountain, Ficksburg,
Free State Province, also
known as the Remaining Extent of the Farm Ficksburg Dorp Gronden,
Farm Nr 75, held by Title Deed T41140/1891,
are ordered:
1.1 to
demolish and remove any structures it may have erected on the land by
Thursday 5
th
December 2024
1.2
to vacate the land by Thursday 5
th
December 2024
2
Should any such person who
might have taken occupation of any such home, dwelling,
abode and/or
structure on the land not vacate together with all his/her
belongings, demolish and remove such structure, the Sheriff
for the
district of Ficksburg, assisted by the South African Police Services,
is authorized and ordered to forthwith evict such
respondents from
such structure and to demolish and remove same from the land on any
subsequent date.
3
The Applicant is ordered
to provide the 3 individuals who forms part of the first and
second
respondent and who has applied for housing with the Housing
Development Agency, with alternative accommodation until the
applicant is able to supply the 3 individuals with erven.
4
No cost order made.
JUDGMENT
Parks
AJ
Introduction
[1]
This is an eviction
application in terms of s 4 or, in the alternative, s 6 of Prevention
of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of
1998 (PIE) to evict the first to fourth respondents from the property
in question. The application
was opposed by the first to fourth
respondents. The fifth to seventh respondents are merely cited as
interested parties and therefore
did not oppose the application.
[2]
The eviction
application was preceded by an application to direct the manner in
which to serve the Section 4(2) notice on the respective
respondents.
A magnitude of interlocutory applications followed by both parties
respectively, which culminated the day of the eviction
hearing which
I will deal with in detail.
Parties
[3]
The applicant, Setsotso
Local Municipality (the municipality), is the registered owner of the
property in question according to
the title deed and is empowered to
govern local government affairs in the municipal districts of
Ficksburg, Clocolan, Marquard
and Senekal within the Free State
Province.
[4]
The first respondent is
cited as persons occupying or intended to occupy the property in
question. The second respondent is a forum
formed by various unlawful
occupiers of the land in question and governed by its constitution
dated 2 July 2023. The third respondent
is allegedly the secretary of
the Boiketlong Forum, Ficksburg, with the service address the same as
the property in question. The
fourth respondent is cited as one of
the instigators inciting the first to third respondents to unlawfully
occupy the land in the
question. The fifth respondent is an
interested party by virtue of a lease agreement entered into between
itself and the applicant,
dated 17 July 2019, in respect of a portion
of land forming the subject of this application. The sixth respondent
is the Housing
Development Agency (HDA) for the Department of Human
Settlements, Free State is cited as an interested party who compiled
an Assessment
report in respect of the property concerned on 5 July
2023 about the unlawful occupation of the applicant’s land by
the first
to fourth respondent and is still unlawfully occupied.
Lastly, the seventh respondent is the Department of Agriculture and
Rural
Development and cited as an interested party by virtue of its
assistance with the poultry farming project for the 2022/2023
financial
year.
Applicant’s
Case
[5]
The deponent of the
founding affidavit is appointed as the Municipal Manager of the
municipality and was duly authorized to depose
of such affidavit by
virtue of her appointment which occurred on 23 November 2022.
[6]
The applicant averred
that the land in question is not suitable for human settlement and
not even viable for housing and or housing
development since there is
no infrastructure. There are no basic services relating to water,
sewerage, roads and storm water systems.
The applicant also averred
that they have, in conjunction with the HDA Agency, a program in
place where various categories of low-cost
housing is made available
to persons who qualify. Such qualifications include,
inter
alia
, that the
applicant should be a bona fide resident of the municipality. A
prospective applicant will apply and if they qualify,
said applicant
will be registered on a waiting list. Furthermore, the applicant
averred that the respondents have unlawfully occupied
the land in
April 2023 which had only one unoccupied erected structure whose
owner is unknown to the applicant at the time. The
amount of
structure has since increased to around 50 structures in July 2023
and in September 2023, to 200 structures. The demarcation
of plots
and cordoning off of areas was not authorized by the applicant nor
the erection or occupation of any structure situated
on the land in
question.
Report
Compiled by Department of Human Settlement
[7]
The applicant has
requested the Department of Human Settlement to compile a report
pertaining to the property in question and same
dated 6 July 2023
indicated the following:
(i)
there were 40
unoccupied and incomplete informal structures at the time when
assessment was done;
(ii)
the nearest primary
health care, schools and community access points are approximately
4-9 kilometers from the area in question;
(iii)
There is no access to
clean water and a sewer system nor access to storm water drainage
systems and roads;
(iv)
The area is on a hill,
steeply slope and too rocky; its full of dongas and the slope is
uneven;
(v)
There are several water
streams as a result of the spring water that runs from the hill which
causes the area to be muddy and almost
difficult to access;
(vi)
The Applicant has in
2019 entered into a lease agreement with the 5
th
Respondent (Shift Consulting) for a period of 10years which relates
to the property in question;
(vii)
The municipality has
resolved in 2002 to earmark a portion of the area for agricultural
projects known as the peach project which
resulted in the Meqheleng
Peach Project being handed over to the beneficiaries in 2009;
(viii)
The land is on the
Restricted Development to Prohibit Further Urban Sprawl into
Environmental Sensitive areas in terms of the Setsotso
Local
Municipality Spatial Development Framework as revised in 2022.
(ix)
Their recommendations
were that it will be difficult to provide basic services, costly to
close the water pans and develop the area
and internal access roads.
It will demand more budget to develop water control- or storm water
channels. The 25 KVA electrical
line which fed electricity to the
peach product carries a very low capacity and cannot energize a human
settlement;
(x)
They concluded that the
area is not habitable or suitable for human settlement development
due to the vegetation and recommend that
alternative suitable land
for human settlement be allocated to the occupants.
(xi)
An area was identified
on the Meqheleng Spatial Development Framework (SDF) map, for
township development which will yield approximately
3000 residential
erven to the housing needs in Ficksburg/Meqheleng. The project is on
the 2023/2024 Integrated Development Plan
(IDP) and the municipality
has commenced with advertisements for the service providers occurred
on 21 April 2023 with closing date
of 23 May 2023.
Applicant’s
Replying and Further Affidavit
[8]
The
applicant, in relation to the issue of meaningful engagement raised
by the respondents, avers further in her replying affidavit
[1]
that there was an attempt at the court appearance of 25 January 2024
between the applicants’ counsel to obtain a list of
all people
present in order to determine whether they have applied for housing
and whether they were on the waiting list; this
was unsuccessful.
Some of the attendees’ present supplied their details but the
respondents present later scratched out the
names on the list making
it difficult to read the names on the list.
[2]
This resulted in the applicant being able to confirm that only three
names on coincided with the waiting list of people who applied
for
houses.
[9]
The
applicant, furthermore, averred in her affidavit
[3]
that a site inspection was conducted on Tuesday, 7 May 2024, where it
was established that only eight people were found on the
peach farm:
three were occupiers and five were present to erect additional
structures. Photos were also taken and indexed
[4]
which shows that there were approximately 160 structures which were
uninhabitable and not capable of occupation, except for five
structures which might be habitable, but had not yet been occupied.
Some structures were also destroyed by the weather conditions
and
there were no ablution facilities, except for a sole latrine, which
naturally, allows for severely unhygienic conditions susceptible
to
the creation of a serious environmental hazard.
[10]
It
has been established that the fourth respondent resides in Meqheleng,
not the land in question. It is further averred in the
confirmatory
affidavit of Mr Radiopane
[5]
who
regularly travels on the road next to the land that at night only two
to four fires were noticed on the land in question. This
supports the
view that the land is not occupied by the number of people as alleged
by the respondents.
[11]
Subsequent
to the site visit were various derogatory comments posted on a
Facebook page of the second respondent marked ‘FNM7’
[6]
and a radio interview conducted and transcribed record marked
‘FNM9’
[7]
which
shows the purpose of unlawfully occupying the property has a
political agenda in that the community is encouraged to occupy
the
property in question and not fear that they will be evicted since
nothing will happen to them.
[12]
The applicant, in
conclusion, averred that they will only be able to supply alternative
accommodation to the three individuals who
form part of the second
respondent, has applied for houses and are on their waiting list and
not to the remainder of the unlawful
occupiers who have failed to
comply with the established modes of recourse, namely to apply for
houses with the Housing Development
Agency
[13]
Lastly, the applicant
did not oppose the respondents’ condonation application for the
late filing of their answering affidavit
and simply wanted
adjudication in respect of Part B of the application to be dealt
with.
Respondents’
Case in Respect of the Eviction Application
[14]
The deponent of the
answering affidavit has been authorized by a resolution taken at the
meeting held on 6 March 2024 of the Boiketlong
Forum Ficksburg and is
also the treasurer of the latter forum.
[15]
The respondents raised
certain points
in
limine,
in that:
i)
the applicant has
failed to comply with the s 4(2) notice by not notifying any or all
of the respondents about the relief claimed;
failed to announce the
terms of the order granted under Part A, and the terms of the notice
under Part B by loudhailer in English
and Sesotho, and failed to
affix a copy of the notice of motion and order on four prominent
places on the land
ii)
the applicant has
failed to embark on a process of meaningful engagement and/or
mediation with the respondents before resorting
to eviction
proceedings
[16]
The respondents averred
the land they occupied was vacant even though leased to the fifth
respondent and was not in use by the applicant
or the fifth
respondent. They are from impoverished backgrounds and lived in
overcrowded and unsuitable conditions with their relatives
for many
years. They decided to leave and occupy the land in question as they
were in desperate need of the shelter to live with
their families.
They have occupied the vacant land in order to realize their right to
adequate housing as enshrined in s 26 of
the Constitution of the
Republic. They are willing to be relocated to any alternative
accommodation until they have applied and
are provided with housing
in terms of the Housing Development and Allocation Programme.
[17]
When they started to
occupy the land in question in April 2023, there were approximately
10 structures erected which increased to
more than 240 at the time
when eviction proceedings were instituted in September 2023. These
structures are occupied by elderly
people, minor children and single
women headed households of which the latter are in the majority.
[18]
The respondent further
avers that the applicant will have to put certain measures in place
to ensure they are supplied with water
and other related services.
They collect water from a nearby well and have no proper toilets.
Respondents’
Condonation Application to Rescind the Cost Order and to Strike Out
Certain Affidavits
[19]
The respondents brought
a condonation application for the late filing of the rescission of a
cost order granted on 25 January 2024;
an application in terms of
rule 6(15) or common law to strike out the applicants’
founding affidavit to file a further affidavit with its annexures; to
strike out the applicant’s replacing replying affidavit with
annexures; to strike out the applicant’s further affidavit,
to
strike out the photos filed and to strike out the service affidavit
filed. They based their application for rescission of the
cost order
granted on 25
th
January 2024 in terms of rule 42(1)
(a)
of the Uniform Rules or, alternatively, in terms of common law, on an
iustus error
.
They averred that the order was erroneously granted in the absence of
the first to third respondents.
[20]
The fourth respondent,
in his founding affidavit, is authorized by a resolution taken on 30
June 2024 marked ‘ML1’ and
confirmed that he was present
at court on 25 January 2024, accompanied by one Messrs. Taylor and
Tshabalala and requested for a
postponement on said day.
[21]
It is averred by the
respondents that when their legal representative withdrew as attorney
of record, they were no longer legally
represented and as a result
became absent at court when the costs order was erroneously sought by
the applicant and granted by
the court against them severally and
jointly.
[22]
The reasons for the
averment are the following :
(i)
the presiding judge was
not aware that the s 4(2) notice were not complied with and not
served on the respondents;
(ii)
the presiding judge has committed a serious procedural error or
irregularity by denying them
their section 34 constitutional right
which is access to court and a right to a fair public hearing by not
having the proceedings
interpreted in the official language of choice
which is Sesotho and failed to give them who were present, an
opportunity and a
fair chance of hearing and procedure to address her
on the cost order and should have issued a
rule nisi
which
should have been served on all respondents;
(iii)
by failing to conduct an enquiry and explaining the effect of the
cost order to them;
(iv)
by deciding who to interact with as the spokesperson on behalf of the
respondents without having a
mandate to speak on behalf of the
respondents, neither Messrs. Tshabalala nor Taylor had such
authority.
[23]
They
further averred that they informed their erstwhile attorney on 23
January 2024 that they were unable to place them in funds
to procced
with the matter. It resulted in an engagement with the applicant’s
counsel to agree about a postponement and a
draft order was sent on
24 January 2024 to their legal representative marked ‘ML3’.
[8]
[24]
The
respondents did not agree with the draft order and believed that
their attorney would have reverted back to them regarding the
aspect
of costs. They were henceforth informed by applicant’s attorney
that they do not agree to a postponement of the matter
on 25 January
2024. The respondents subsequently, due to their inability to
properly instruct their erstwhile attorney due to funds,
notified
their attorney to withdraw on 25 January 2024 and requested their
members to be present on said day in order to request
a postponement
themselves. The transcribed record marked ‘ML8’ reflects
that the respondent’s counsel was present
and requested to
withdraw as attorney of record and informed the presiding judge that
the first to fourth respondents were present
in court
[9]
and same was confirmed by various people present on behalf of the
respondents. The fourth respondent confirmed that a total of
eleven
individuals were present.
[25]
The respondents in
conclusion averred that they were not given an opportunity to address
the court on the cost order, to express
themselves in the language of
choice and the applicant would not be prejudiced if the cost order
stood over for later adjudication.
[26]
The applicant’s
application to strike out various affidavits are based on the
following averments:
(i)
the founding affidavit in the interlocutory application to file
further affidavit has not
been properly attested, doesn’t
satisfy the requirements as set out in the Regulations governing the
Administration of an
oath and affirmation and is irrelevant
(ii)
the confirmatory affidavit again doesn’t comply with the
requirements as set out the Regulations
governing the Administration
of an oath and affirmation and is irrelevant
(ii)
the
‘new/replacing/replying affidavit’ is defective and ought
not to be admitted since the rules doesn’t make
provision for
the replacement of an affidavit, the replacing affidavit supplements
the applicant’s weak case, is irrelevant
and prejudices the
respondents in the defence of their case
(iii)
the ‘further
affidavit’ which deals with the current status of the land
invasion, address the issue of alternative accommodation
and the
service affidavit is defective and irrelevant
(v)
the respondent in conclusion averred that the interlocutory
application to file a further affidavit’
should be dismissed on
the grounds raised
supra
ISSUES
[27]
The first to fourth
respondents brought the following interlocutory applications:
(i)
a condonation
application in respect of the rescission of the cost order granted on
25
th
January 2024;
(ii)
an application to
strike out various affidavits;
(iii)
the dismissal of the
applicant’s interlocutory application to file a further
affidavit.
[28]
The applicant requested
that the eviction order be granted and the first to fourth
respondents be evicted from the property in question
Law
[29]
Uniform
Rule 27(3) stipulates that ‘a court may, on good cause shown,
condone
any non-compliance with these rules’. It was held in
TLE
(Pty) Ltd v The Master of the High Court and Others
[10]
that good cause requires that the application be bona fide and in
Express
Model Trading 289 CC v Dolphin Ridge Body Corporate
[11]
the Court held that sufficient cause includes the applicant’s
prospects of success. Furthermore, the Court held in
Van
Heerden and Another v Master of the Eastern Cape High Court, Port
Elizabeth and Others
[12]
that
condonation will be granted if it is in the interests of justice to
do so.
[30]
Both rule 31(2) and
rule 42(1)
(a)
of the Uniform Rules cover the application to
rescind
a judgement but different requirements are applicable and one
similarity is that the judgement must have been granted in the
absence
of any party affected. The former rule pertains to supplying
a reasonable explanation for the delay and showing that the
application
is bona fide without the intention to delay the claim,
whereas the latter rule caters for the correction of a mistake. In
this
regard, the court retains a discretion to grant such an order
and such order must be exercised judicially.
[31]
A court is, in terms of
common law, entitled to rescind a judgment obtained in default of
appearance, provided sufficient cause
is shown. Sufficient cause
includes a reasonable and acceptable explanation for the default. In
exceptional cases a judgement may
be rescinded if it was obtained as
a result of
iustus
error
. In addition,
Rule 6(15) of the Uniform Rules stipulates the circumstances under
which a court may
strike
out
from an
affidavit any matter which is scandalous, vexatious or irrelevant.
Such an application may not be granted unless the court
is satisfied
that the applicant will be prejudiced if the application is not
granted.
[32]
Section
26 of the Constitution provides that everyone has the
right to have access to adequate housing and that the state must take
reasonable
legislative and other measures, within its available
resources, to achieve the progressive realisation of this right. PIE
gives
legislative effect to the aforementioned section by carefully
addressing the issue of housing and the demarcation of powers to
limit s 26. Pie holds in s 4 and s 6 that a court may grant an order
for eviction if it is of the opinion that it is just and equitable
to
do so, after considering all the relevant circumstances, including
the rights and needs of the elderly, children, disabled persons
and
households headed by women.
[33]
Section
6(1)
of PIE permits the granting of an eviction order (eviction) 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 (b) it is in
the public interest. Section 6(2) goes further
and defines 'public
interest' to include the interest of the health and safety of those
occupying the land and the public in general,
and s 6(3) highlights
which factors the court must consider to determine what is just and
equitable to grant an eviction order
such as the circumstances under
which the unlawful occupier occupied the land, the period the
unlawful occupier resided on the
land in question and the
availability of suitable alternative accommodation.
Various
Interlocutory Applications
[34]
When considering a
condonation
application,
I exercise my discretion in
conjunction with the facts of the respondents’ case. The
respondents only became aware, in May
2024 after consultation with
their legal representative, which is three months later, of the
consequences of the costs order granted
against them. Their attorney
subsequently communicated with the applicant’s attorney,
requesting to agree to the rescission
of the cost order which was
unsuccessful. This resulted in further costs to the respondents to
secure the transcribed record and
on 20 June 2024, the respondents
were ordered by Daffue J to file their interlocutory application on a
due date which they did
not comply with and only filed same a few
days later.
[35]
I am, therefore, of the view that the
respondents’ condonation application is not mala fide in view
of the fact that they
attempted to resolve the interlocutory
application with the applicant prior to commencement of litigation.
The respondents’
delay is not extreme’ it was only a few
days late and were they able to adequately explain the reason for
their delay. I
find, in conclusion, that the granting of the
condonation is in the interest of justice and therefore grant the
condonation for
the late filing of the rescission of the cost order.
[36]
When considering the
rescission
of the cost order
, I must exercise my
discretion judicially and consider the facts of the respondents’
case. It is not in dispute that on the
day when the respondent’s
attorney withdrew and the respondents appeared in person requesting a
postponement, a number of
individuals were present in court. It is
clear from the transcribed record that certain individuals present
were identified as
Messrs Taylor, Tshabalala and the fourth
respondent, who interacted with the presiding judge. The third
respondent was absent even
though the attorney, prior to withdrawing,
informed the presiding judge that the first to fourth respondents
were present in court.
[37]
Two of the three individuals requested to
proceed in the language of their choice, which was Sesotho, and the
presiding judge nevertheless
proceeded in English without obtaining
the service of an interpreter to translate what transpired in court.
The applicant’s
counsel subsequently requested a cost order
against the respondents and their response against such request were
not obtained from
them respectively. This resulted in a cost order
for wasted costs against the first to fourth respondents jointly and
severally
occasioned by the postponement, the one paying the other to
be absolved.
[38]
A cost order was granted against the third
respondent, despite her absence. In addition, none of the respondents
were given an opportunity
to respond to the request for a cost order
by the applicant. The consequences of such an order was not explained
to them and the
proceedings were not interpreted in the language of
their choice.
[39]
In
Biowatch
Trust v Registrar Genetic Resources and Others
,
[13]
it was held that
the general rule in constitutional litigation was that an
unsuccessful litigant ought not to be ordered to pay
costs to the
state unless the application was frivolous or vexatious or in any
other way manifestly inappropriate. I therefore
set aside the cost
order granted on 25 January 2024 against the first to the fourth
respondents jointly and severally due to the
following grounds: the
granting of the cost order occurred in the absence of the third
respondent who is affected by such order;
the non-adherence to the
audi
alteram partem
rule by not asking the respondents’ response to the applicants
request to the cost order; not proceeding in the respondents
language
of choice in order to understand the nature of the proceedings; and
the interests of justice demand that the cost order
be set aside.
[40]
In considering another interlocutory
application by the respondents to
strike out
the applicant’s further affidavit, rule 6(15)
specifies
instances when a court may strike out an affidavit. I have, in
particular, considered the contents of the further affidavit
filed by
the applicant which in this instance, answered the questions raised
by the respondents, as well as by the various presiding
judges,
concerning the status of the land occupied by the respondents, the
issue of alternative accommodation and whether service
was executed
effectively.
[41]
As a result, I cannot
find that the further affidavits filed by the applicant are
scandalous, vexatious or irrelevant because they,
ultimately,
assisted me to come to a well-informed conclusion in the main action
and, therefore, to dismiss the respondents’
application for the
applicant to file further affidavits and to strike out the further
affidavits.
THE
EVICTION APPLICATION
[42]
It is common cause that the respondents
have erected and inhabited structures on the property in question
without the authorisation
of the applicant. The number of structures
increased from 10 in April 2023 to more than 200 in September 2023.
It can therefore
be deduced from the facts that the occupiers on the
property in question falls under the definition of unlawful occupiers
as defined
in section 1 of the PIE Act. Furthermore, it is not
disputed by the respondents that they have not applied for housing
with the
Housing Development Agency and no reasons have been advanced
why they should be given preference above the qualifying applicants
who applied for houses with the Department of Housing Agency.
[43]
There cannot be any doubt that the
occupiers of the property in question were not aware of the eviction
application or subsequent
proceedings due to the following reasons:
‘
[69.1] the returns of
service
[14]
in respect of the hearing of 6 October 2023 were 36 in total and
served on a few people other than affixing on door due to
unavailability;
[69.2] the returns of service
[15]
in respect of hearing of 30
th
November 2023 occurred on 10
th
October 2023 amounting to 13 filed and served on various individuals
[69.3] the return of service in
respect of 25 April 2024
[16]
served on 10 October 2023 indicating that most of the structures were
found unoccupied, word spread about the sheriff trying to
serve a
document which resulted in people arriving and the nature of the
document explained to everyone in Sotho and English by
the sheriff
[69.4] various members
were present at the court hearing on 25
th
January 2024 and confirmed by Mr Lephoto
[17]
in his founding affidavit for the rescission application who was also
authorized by the second respondent to depose to such affidavit
[69.5] an answering affidavit was
deposed to by Mr Tshabalala
[18]
dated 20
th
March 2024 who was authorised by the members of the second
respondent
[19]
and was formed by the members who were part of the first respondent.
[69.6] The eviction application did
not proceed in the absence of the first to fourth respondents, they
were at all times present
including the day of the 25
th
January 2024 and represented by a legal representative on subsequent
court appearance and the day of the actual hearing.’
Therefore, the argument
raised as a point
in limine
that the s 4(2) notice was not
effected properly cannot stand and is dismissed.
[44]
The
second point
in
limine
raised by the respondents, namely that there was no meaningful
engagement between the applicant and the first to fourth respondent,
does not have any merit either. Except for the fact that the
applicant via the legal representative has attempted to engage with
the respondents, albeit unsuccessfully, at the court appearance of 25
January 2024 and two attendance lists
[20]
attached to the
affidavit clearly show that the applicant has attempted, on several
occasions, to engage with the community and
there was no engagement
forthcoming from the respondents. In the result, this point
in
limine
is dismissed as well.
[45]
I
will deal henceforth with the last part of my ruling which is to
determine whether its ‘just and equitable’ and in
the
interest of justice to grant the eviction order whilst considering
all the relevant circumstances. Sachs J remarked in
Port
Elizabeth Municipality v Various Occupiers
[21]
that when
considering whether it is ‘just and equitable’ to make an
eviction order in terms of s 6 of the Act, the responsibilities
that
municipalities, unlike owners, bear in terms of s 26 of the
Constitution are relevant. As
Government
of the Republic of South Africa v Grootboom
[22]
indicates,
municipalities have a major function to perform with regard to the
fulfilment of the rights of all to have access to
adequate housing.
Municipalities, therefore, have a duty to systematically improve
access to housing for all within their
area. They must attend to
their duties with insight and a sense of humanity and this duty
extends beyond the development of housing
schemes, to treating those
within their jurisdiction with respect. Where the need to evict
people arises, some attempts to
resolve the problem before seeking a
court order will ordinarily be required.
[46]
In
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and
Others
,
[23]
Yacoob J held that
the conditions of life in the Joe Slovo settlement were unhygienic.
There was no water-borne sewerage,
the area was unsafe, the
applicants lived in deplorable circumstances unfit for reasonable
human habitation, the unlawful occupiers
occupied the property due to
dire need, had nowhere to go and resided in the area for a period of
15 years. The court held that
moving the occupiers was inevitable but
necessary, given the circumstances, and ordered the vacation of land
within certain time
frames.
[47]
Presently, the first to the fourth
respondents have occupied the property in question at the time when
litigation commenced for
a period less than six months. This area is
beneficial for agricultural purposes, not for human habitation. The
erection of structures
has increased gradually starting from one in
April 2023 to approximately fifty in July 2023 and two hundred in
September 2023 when
litigation commenced. The report compiled in July
2023 by the Department of Human Settlements indicates that there were
40 unoccupied
and incomplete structures on the property in question
and the site inspection conducted in April 2024 highlights that five
structures
are habitable, but not occupied.
[48]
The area where structures have been
erected is the subject of a lease agreement, is not conducive for
habitation due to the various
reasons mentioned in the report of the
Department of Human Settlement and is not capable for housing
development either. However,
the applicant has identified an area for
township development which will yield approximately 3000 residential
erven to the housing
needs in Meqheleng and commenced with the
project by advertising for service providers in April 2023 already.
[49]
The respondents were not homeless or in
dire need of accommodation but chose to move from their place of
abode that they shared
with their families due to over-crowdedness.
The respondents moved to an area where there was no water or sewerage
facilities,
but conveniently expects the applicant to supply them
with such services. It, therefore, cannot be said that the
respondents are
destitute because they chose to pay for a legal
representative to assist them whereas the option of applying to Legal
Aid South
Africa to assist them was refused.
[50]
The right to housing in terms of section
26 of the Constitution is validated further to include the right to
adequate housing which
cannot be construed to live in conditions as
depicted in the photos, structures that cannot endure severe weather
conditions, such
as wind or provide shelter when it rains and does
not have any access to water and sanitation. In addition, it cannot
be in the
interest of the health and safety of the occupiers as
defined in s 6(2) of the PIE Act, to reside in an area where there is
no
water and no sanitation.
[51]
Apart from three individuals, none of the
other respondents applied for housing with the Housing Development
Agency. This clearly
indicates that they do not want to abide by
processes implemented by the applicant that regulates fair allocation
of houses. They
do not want to cooperate in order to secure a house
for themselves, but nonetheless expects the applicant to supply them
with alternative
accommodation once evicted.
[52]
The respondents’ various
interlocutory applications, their failure to adhere to time frames
for filing of their papers, the
slandering of the applicant on social
media and the radio interview demonstrates the respondents’
unwillingness to work with
the applicant to resolve the issue
amicably. They implemented various delaying tactics at the expense of
the various occupiers,
whereas a middle ground could have been
reached between themselves and the applicant.
[53]
It must be borne in mind that, ultimately,
the respondents invaded a piece land which they had no permission to
occupy. They resided
in an area which is not conducive for
habitation, wanted the applicant to supply them with services but did
not want to apply for
housing or wait for applicant to supply them
with erven/houses. They grab land in an attempt to jump the
proverbial queue of the
allocation of houses.
[54]
After consideration of all the
circumstances, I find it is just, equitable and in the interest of
justice to grant the eviction
order.
[55]
I accordingly make the following order:
1
Any person forming part of the
first and second respondents including the third and fourth
respondent who might have taken occupation
of any home, dwelling and
abode and/or structure on the property commonly known as the Peach
Farm and Imperani Mountain, Ficksburg,
Free State Province, also
known as the Remaining Extent of the Farm Ficksburg Dorp Gronden,
Farm Nr 75, held by Title Deed T41140/1891,
are ordered:
1.1 to
demolish and remove any structures it may have erected on the land by
Thursday 5
th
December 2024
1.2
to vacate the land by Thursday 5
th
December 2024
2
Should any such person who might have taken occupation of any such
home, dwelling,
abode and/or structure on the land not vacate
together with all his/her belongings, demolish and remove such
structure, the Sheriff
for the district of Ficksburg, assisted by the
South African Police Services, is authorized and ordered to forthwith
evict such
respondents from such structure and to demolish and remove
same from the land on any subsequent date.
3
The Applicant is ordered to provide the 3 individuals who forms part
of the first and
second respondent and who has applied for housing
with the Housing Development Agency, with alternative accommodation
until the
applicant is able to supply the 3 individuals with erven.
4
No cost order made.
CS
PARKS AJ
Appearances
For
the Applicant:
Adv
Grobler & Adv Le Roux
Instructed
by:
Ponoane
Attorneys
BLOEMFONTEIN
For
the First to Fourth Respondents:
Adv
Merabe
Instructed
by:
Salakuva
Attorneys
BLOEMFONTEIN
[1]
Page
376-389 of indexed bundle C.
[2]
Page
423 of indexed bundle C.
[3]
Page
434-447 of indexed bundle C.
[4]
Pages
469-569 of indexed bundle C.
[5]
Page
454 of indexed bundle C.
[6]
Pages
570-573 of indexed bundle C.
[7]
Pages
577-580 of indexed bundle C.
[8]
Page
648 of indexed bundle D.
[9]
Page
659 of indexed bundle D, line 19 of transcribed record.
[10]
TLE
(Pty) Ltd v The Master of the High Court and Others
[2011] ZAGPJHC 238;
2012 (2) SA 502
(GSJ) para 12.
[11]
Express
Model Trading 289 CC v Dolphin Ridge Body Corporate
[2014] ZASCA 17; [2014] 2 All SA 513 (SCA).
[12]
Van
Heerden and Another v Master of the Eastern Cape High Court, Port
Elizabeth and Others
[2023] ZAECQGBHC 59;
[2023] 4 All SA 875
(ECP) at [37].
[13]
Biowatch
Trust v Registrar Genetic Resources and Others
[2009]
ZACC 14
;
2009 (10) BCLR 1014
(CC) para 46.
[14]
Pages
155-191 of Indexed Bundle A.
[15]
Page
339-351 of indexed Bundle B.
[16]
Page
323 of Indexed bundle B.
[17]
Pages
585-643 of Indexed Bundle D.
[18]
Page
239 – 263 of Indexed Bundle B.
[19]
Boiketlong
Forum, Ficksburg.
[20]
Pages
122-123 of Indexed bundle A.
[21]
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC).
[22]
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
[23]
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
[2009]
ZACC 16
;
2009 (9) BCLR 847
(CC);
2010 (3) SA 454
(CC).