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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
MANTSOPA LOCAL MUNICIPALITY
and
ALL UNLAWFUL AND UNIDENTIFIED PERSONS
TRESPASSING AND/OR PREPARING TO OCCUPY
PORTION 20 OF FARM DORPS GRONDEN
LADYBRAND NO.451, LADYBRAND
ALL RESPONDENTS AS LISTED IN ANNEXTURE 'A'
ANY AND ALL UNLAWFUL AND UNIDENTIFIED
OCCUPIER(S) OF PORTION 20 OF FARM DORPS
GRONDEN LADYBRAND NO.451, LADYBRAND Reportable / Not reportable
Case no: 3591 /2024
APPLICANT
FIRST
RESPONDENT
SECOND TO THIRTY
THIRD RESPONDENTS
THIRTY-FOURTH
RESPONDENT
Neutral citation: Mantsopa Local Municipality v All Unlawful & Unidentified Occupiers
and Others (3591/2024)
Coram:
Heard: Mpama AJ
14 November 2024
6 February 2025
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Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be on 27 February 2025 at 09H30.
Summary:
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ORDER
Part A:
1. Rule nisi granted on 5 July 2024 is hereby confirmed and made final.
Part B:
1. The second to thirty-fourth respondent and all those who occupy the Portion 20, Dorp
Farm, Gronden, Ladybrand are declared unlawful occupiers .
2. The second to thirty-fourth respondents , and all those who occupy the property are
ordered to vacate Portion 20, Dorp Farm, Gronden, Ladybrand on or before 15h00 on
Wednesday , 30 April 2025.
3. It is further ordered that in the event that the second to thirty-fourth respondents and
all those who occupy the property fail or refuse to vacate the property on or before 15h00
on 30 April 2025, the Sheriff Ladybrand, alternatively his or her duly appointed deputy
together with such assistance as he or she deems appropriate are authorized and
directed to evict the second to thirty-fourth respondents and all those who occupy Portion
20, Dorp Farm, Gronden, Ladybrand and to remove all the structures illegally built on the
property.
4. The applicant is directed to make available to the sheriff 60 copies of this order. The
order is to be served on Mr Ntoni, the second and thirty-fourth respondents by the Sheriff.
5. The sheriff is directed to attach a copy of this order at a structure found at Portion 20,
Dorp Farm, Gronden, Ladybrand and at a point that is generally accessible to most
occupiers in the property.
6. The sheriff is directed to read the contents of this order over a loudspeaker/megaphone
to all the persons found present at Portion 20, Dorp Farm, Gronden, Ladybrand twice a
day, between 7h00 and 9h00 and between 17h30 and 18h30 for five consecutive days
from the date of this order.
7. The Registrar is directed to serve this judgment through electronic mail to the Head of
Department for Human Settlements , Free State Provincial Government.
8. No cost order is made.
JUDGMENT
Mpama AJ
[1] The Honourable Sachs J once held: 4
'In the pre-democratic era the response of the law to a situation like the present would
have been simple and drastic. In terms of the Prevention of Illegal Squatting Act 52 of
1951 (PISA), the only question for decision would have been whether the occupation of
land was unlawful. Once it was determined that the occupiers had no permission to be on
the land, they not only faced summary eviction, they were liable for criminal prosecution.
Expulsion from land of people referred to as squatters was accordingly accomplished
through the criminal and not the civil courts, and as a matter of public rather than of private
law. The process was deliberately made as swift as possible: conviction followed by
eviction. Thus, even if they had been born on the land and spent their whole lives there,
persons from whom permission to remain on the land had been withdrawn by new owners
were treated as criminals and subjected to summary eviction.'1
[2] The democratic dispensation ushered in a new era in our history. Section 26(3) of
the Constitution provides:
'No one may be evicted from their home, or have their home demolished, without an order
of court made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.'
[3] The Constitution does not permit eviction without a court order. To reinforce this
and prevent the abuses of the past, the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (the Pl E Act) was enacted. A person can only be
evicted if the court finds that he or she is in unlawful occupation and when it has
determined that that such eviction is just and equitable .
[4] This is an application for the eviction of the second to thirty-fourth respondents
1 Port Elizabeth Municipality v Various Occupiers (2004] ZACC 7; 2005 (1) SA 217 (CC) para 8.
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from the land situated at Portion 20, Dorp Farm, Gronden, Ladybrand (applicant's
property). The application has been brought in accordance with the provisions of the PIE
Act. The applicant is a local municipality duly established in terms of s 155 read with
s 239 of the Constitution of the Republic of South Africa, with its principal address at 38
Joubert Street, Ladybrand, Free State.
[5] The first respondent refers to all unlawful and unidentified occupiers or persons
preparing to occupy applicant's property. The second to thirty-third respondents (the
respondents) are all respondents listed in Annexure 'A', a report compiled by the applicant
with the details of some of the persons occupying applicant's property. The thirty-fourth
respondent refers to any unlawful and all unidentified occupiers of the property or a group
of persons currently residing at applicant's property.
[6] The applicant launched this application on 2 July 2024 in two parts. Part A was
intended to prevent further occupation of the land and was heard on an urgent basis
against the first respondent. On 5 July 2024, a rule nisi was issued. On 14 November
2024, the application was heard, judgment reserved and the rule nisi was extended to 6
February 2025, and later again to 27 February 2025. The parties were directed to file
supplementary heads of argument by 18 February 2025. I am grateful to both parties for
the comprehensive heads of argument filed in this application.
[7] With regards to the rule nisi, it appears that there is no dispute on whether it should
be confirmed or not. The municipal manager of the applicant deposed to an affidavit in
support of the application while Mr Setsumi April Ntoni deposed to the answering affidavit
on behalf of the second to thirty-fourth respondents. The first and thirty-fourth
respondents filed no opposing papers and made no appearance.
[8] The first issue the court must determine is a point in limine raised by the second
to thirty-fourth respondents who contended that the municipality lacked authority to bring
the application . The respondents abandoned the point in limine on its head of arguments.
The applicant dealt with this issue extensively in its reply and I do not consider that it is
deserving of any special mention. However, for the sake of completion, I make mention
that the point in limine raised by the respondent is dismissed . I must also mention that the
applicant had also raised a point in limine but withdrew it.
[9] I now turn to the merits of the application. Erasmus Superior Court Practice2
2 Van Loggerenberg , Erasmus Superior Court Practice 2ed (2) at D9-1 to D9-3.
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summarizes the PIE Act as follows:
'The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE), which came into operation on 5 June 1998, provides for the procedures for the
eviction of unlawful occupiers of land. In Ndlovu v Ngcobo; Bekker and Bosch the
Supreme Court of Appeal, in a majority judgment held that PIE disposed of certain
common-law rights relating to eviction. The majority judgment can be summarized as
follows:
(a) PIE has its roots, inter alia, in s 26(3) of the Constitution of_ the Republic of
South Africa, 1996.
(b) the definition of an unlawful occupier in s 1 of PIE relates to a person who
occupies land without the express or tacit consent of the owner or person in charge
of such land. In unlawful occupiers, irrespective of whether their occupation of such
land was previously lawful.
(c) PIE does not protect buildings and structures that do not perform the functions
of a form of dwelling or shelter for humans for example commercial properties or
that are occupied by juristic persons.
(d) the effect of PIE is not to expropriate private property. What PIE does is to delay
or suspend the exercise of landowner's full propriety rights until a determination
has been made whether it is just and equitable to evict the unlawful occupier and
under what conditions.
(e) PIE invests in the courts the right and duty to make the order which, in the
circumstances of the case, would be just and equitable, and it prescribes some
circumstances that have to be taken into account in determining the terms of the
eviction. In other words, the court, in determining whether or not to grant an order,
or in determining a date on which the on which the property has to be vacated, has
to exercise a discretion as to what is just and equitable. The discretion is one in
the wide, and not the narrow sense. Consequently, the court does not have a free
hand to do whatever it wishes.
(f) provided the procedural requirements laid down in PIE have been met, a
landowner is entitled to approach the court on the basis of ownership and the
occupier's unlawful occupation. In this regard the occupier bears an evidential
onus("weerleggingslas"). '
[1 O] The Pl E Act only applies to 'unlawful occupiers' . In s 1 of the Pl E Act, an unlawful
occupier is defined as:
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'a person who occupies land without the express or tacit consent of the owner or person
in charge, or without any other right in law to occupy such land, excluding a person who
is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a
person whose informal right to land, but for the provisions of this Act, would be protected
by the provisions of the Interim Protection of Informal Land Rights Act, 1996.'
[11) The PIE Act enjoins the court to grant an eviction order only 'if it is of the opinion
that it is just and equitable to do so, after considering all the relevant circumstances ' as
contemplated ins 4(6), 4(7) and 6(1) of the PIE Act.
[12) For the court to grant an eviction order it must conduct two-legged enquiry. The
first leg of the enquiry is whether the respondents are unlawful occupiers. Once the court
has found that the respondents are unlawful occupiers, it must consider whether the
eviction of the respondents will be just and equitable .
[13) In considering whether it is just and equitable to make an eviction order, the court
must consider all the relevant circumstances as contemplated ins 6 of the PIE Act. Once
the court has established that the eviction will be just and equitable, it must consider the
date of implementation of the order.
[14) Coming to the application before me, the applicant has by way of a title deed
asserted that it owns the property in question. The respondents do not deny that the
applicant owns the property. Moreover, the respondents do not dispute that they have not
been authorized by the owner to occupy the land in question. None of the respondents
have demonstrated that they have the implied or tacit consent of the applicant to occupy
the property. In the premises, the respondents are found to be unlawful occupiers.
[15] The Pl E Act set outs two types of unlawful occupiers , namely unlawful occupiers
in terms of s 4(6) (those who have been in unlawful occupation for a period less than 6
months) and s 4(7) occupiers of the PIE Act (those who have been in unlawful occupation
for a period longer than 6 months). The applicant, in its founding affidavit, averred that
the respondents have occupied the land for less than 6 months and are therefore s 4(6)
occupiers . It is the applicant's case that during the period of April and May 2024 it noticed
that there were people moving in and around the land in question. Upon further
investigation , it found people gathering building material, some demarcating the area with
boulders and erecting some shacks.
[16) The applicant further stated that upon an advice from its attorney, photographs of
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the area were taken by the applicant in June 2024. The photos are attached to the
application.
[17] The second to thirty-third respondents disputed that they have occupied the area
for less than 6 months. In their answering affidavit, the respondents averred that when
they arrived at this area three years ago (2021 ), they found persons already in occupation.
[18] It is trite that any dispute of facts relevant must be resolved in favour of the
respondents unless the assertion in question is so untenable or farfetched that it can be
dismissed on the papers. 3
[19] The photos attached to the founding affidavit were obtained in June 2024,
according to the applicant. This has not been denied by the respondents. These photos
depict some shacks and most of the shacks are half built structures. In addition, there is
burnt grass on the ground and no ablution facilities can be seen on the photos. Just by
looking at the photos, it is easy to detect that the area is newly established and has been
occupied only recently. On account of the aforementioned, it is my finding that the
unlawful occupiers have not occupied the area for more than 6 months. They are therefore
s 4(6) unlawful occupiers.
[20] Section 4(6) of the PIE Act provides that if an unlawful occupier has occupied the
land in question for less than 6 months at the time when the proceedings are initiated, 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.
[21] The court must determine if it is just and equitable to evict the respondents. The
respondents asserted that they bought certain sites from the applicant some time ago
and the applicant failed to deliver the sites to them, hence they took occupation of this
property. In support of this assertion, the respondents attached five letters. The letters
show that Ntobo Sechaba, Mokheseng Maserame, Setlai Koos and Maphalatsa Anna
were in 2015, respectively , allocated sites at Thabong and that ME Khojane was allocated
a site at Manyatseng in 2021 by the applicant. The allocation of the sites has not been
disputed by the applicant. However, the applicant contended that the sites that were
allocated according to these letters do not form part of the property subject of these
proceedings and there is no defence available to the respondents for occupying this land.
3 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009(2) SA 277 (SCA) para 26.
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The applicant submitted during the oral arguments that the respondents ' actions amount
to land grabbing and should be discouraged by the court.
[22] Annexure 'A' identifies the occupants found on the land subject to these
proceedings and their details. The names of the persons allocated the sites according to
the respondents' letters do not appear on Annexure 'A'. The letters do not support the
respondents' assertions that the unlawful occupiers are persons who bought sites from
the applicant. Even if it were so, that alone would not stand as a defence to the
application . Furthermore, the areas (Thabong and Manyatseng) referred to in the letters
are not the same as the one being the subject of these proceedings . The letters bear no
testimony to the respondents ' defence.
[23] Lastly, the applicant contended that the property in question is earmarked for a
housing development meant to benefit its underprivileged community. It was averred on
the applicant's founding affidavit that the applicant is in the process of making an
application to the Department of Agriculture, Land Reform and Rural Development
(Department) to establish a township. Correspondence between the applicant and the
Department was attached to the application . If the respondents are allowed to remain in
this property their presence will interfere with the applicant's attempts to grapple with
housing shortages.
[24] Having considered the above I am satisfied that the eviction of the respondents is
just and equitable. There is no defence proffered by the respondents for the unlawful
occupation of the applicant's property.
[25] The respondents have not occupied the area for a long time. However,
acknowledging that there are elderly persons, children and women occupying the
property I am of the view that a period of two months' notice to the respondents is
sufficient.
[26] The applicant acknowledged that it has a backlog of houses and it is unable to
meet the demands . The respondents are citizens of the Republic and deserve to be
treated with dignity. I say this because it does not appear that the applicant, at any stage
before launching the application, engaged the respondents with the intent of finding a
solution. The respondents have built shacks in the area and the applicant seems to have
forgotten its constitutional duty to provide proper housing to the respondents as well as
other persons residing within its area. It has treated this litigation just as any other
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litigation, forgetting its constitutional mandate.
[27] I wish to remind the applicant of what was said by the Supreme Court of Appeal in
the case of City of Johannesburg v Changing Tides 74 (Pty) Ltd & Others:4
'The general approach of local authorities, so far as it can be discerned from the
reported case, has been to file with the court a general report detailing its current
housing policy without addressing the facts of that particular case. That is
inadequate. In addition to such a report it must deal directly with the facts of the
particular case. That report must specify
(a) The information available to the local authority in regard to the building or
property in respect of which an eviction order is sought, for example, whether it is
known to be a "bad building", or is derelict, or has been the subject of inspection
by municipal officials and, if so the result of their inspections. (It appears from
some of the reported cases, like the present one, that the local municipality has
known of the condition of this building and precipitated the application for the
eviction by demanding that the owners evict people or upgrade buildings for
residential purposes). The municipality should indicate whether the continued
occupation of the building gives rise to health or safety concerns and express an
opinion on whether it is desirable in the interests of the health and safety of the
occupiers that they should be living in such circumstances;
(b) such information as the municipality has in regard to the occupiers of the
building or property, their approximate number and personal circumstances (even
if described in general terms, as, for example by saying that the majority appear to
be unemployed or make a living in informal trade), whether there are children,
elderly or disabled people living there, and whether there appear to be households
headed by women;
(c) whether in the considered view of the local authority an eviction order is likely
to result in all or any of the occupiers becoming homeless;
(d) if so, what steps the local authority proposes to put in place to address and
alleviate such homelessness by way of the provision of alternative land or
emergency accommodation;
4 City of Johannesburg v Changing Tides 74 (pty) Ltd & Others [2012) ZASCA 116; 2012 (6) SA 294 (SCA).
(e) the implications for the owners of delay in evicting the occupiers;
(f) details of all engagement it has had with the occupiers in regard to their
continued occupation of or removal from the property or building;
(g) whether it believes there is scope for a mediated process, whether under s 7
of PIE or otherwise, to secure the departure of the occupiers from the building and
their relocation elsewhere and, if so on what terms and, if not why not.'5
[28] At para 41 the court went further and said:
' ... The more comprehensive the report furnished by the local municipality at the
outset, the less likely that it will become embroiled in lengthy and costly litigation,
so that the additional effort at the outset should diminish costs in the long run and
enable eviction cases to be dealt with expeditiously in the interests of all
concerned. ' 11
[29] I am mindful that the respondents have occupied the applicant's property for less
than six months; however, it remained the duty of the municipality to place before court
as much information as it is possible about the unlawful occupiers ' contrary to the
applicant's belief that it is the respondents who should place this information before court.
It was for this reason, inter a/ia, that I requested the parties to file supplementary heads
of argument. Section 7 of the PIE Act provides for a mediation process in circumstances
of this nature. The applicant neglected the provisions of the PIE Act as it did not at any
instance try to mediate the matter.
[30] In the circumstances, the following order is made:
Part A:
1. Rule nisi granted on 5 July 2024 is hereby confirmed and made final.
Part B:
1. The second to thirty-fourth respondent and all those who occupy the Portion 20, Dorp
Farm, Gronden, Ladybrand are declared unlawful occupiers .
2. The second to thirty-fourth respondents, and all those who occupy the property are
ordered to vacate Portion 20, Dorp Farm, Gronden, Ladybrand on or before 15h00 on
5 Ibid para 40.
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Wednesday , 30 April 2025.
3. It is further ordered that in the event that the second to thirty-fourth respondents and
all those who occupy the property fail or refuse to vacate the property on or before 15h00
on 30 April 2025, the Sheriff Ladybrand , alternatively his or her duly appointed deputy
together with such assistance as he or she deems appropriate are authorized and
directed to evict the second to thirty-fourth respondents and all those who occupy Portion
20, Dorp Farm, Gronden, Ladybrand and to remove all the structures illegally built on the
property.
4. The applicant is directed to make available to the sheriff 60 copies of this order. The
order is to be served on Mr Ntoni, the second and thirty-fourth respondents by the Sheriff.
5. The sheriff is directed to attach a copy of this order at a structure found at Portion 20,
Dorp Farm, Gronden, Ladybrand and at a point that is generally accessible to most
occupiers in the property.
6. The sheriff is directed to read the contents of this order over a loudspeaker/megaphone
to all the persons found present at Portion 20, Dorp Farm, Gronden, Ladybrand twice a
day, between 7h00 and 9h00 and between 17h30 and 18h30 for five consecutive days
from the date of this order.
7. The Registrar is directed to serve this judgment through electronic mail to the Head of
Department for Human Settlements, Free State Provincial Government.
8. No cost order is made.
Appearances:
For the Applicant:
Instructed by:
For the 2nd to 33rd Respondents:
Instructed by:
For the First and Thirty-fourth
Respondents: Adv K Naidoo
Rampai Attorneys
Westdene
Bloemfontein
Mr MW Mukhawana
MW Mukhawana Attorneys
Ficks burg
c/o Thebe Attorneys
Westdene
Bloemfontein
No appearance 13