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REPUBLIC OF SOUTH AFRICA







IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE NO: HCA30/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : YES/NO
SIGNATURE: Naude -Odendaal J
DATE: 15/05/2025

In the matter between: -

RACHIDI MABOE APPELLANT

And

ZION CHRISTIAN CHURCH FIRST RESPONDENT

JUDGMENT

NAUDE -ODENDAAL J:

[1] This is an appeal against the Judgment and Order by Magistrate Ngobeni
sitting as the court a quo , handed down on 22 March 2024 in terms whereof the
court a quo ordered that the Appellant and all those occupying Erf 3[...], Portion 13
Farm Klipbank, Ma sakaneng ("the property"), vacate the aforesaid property on or
before 31 May 2024, failing which, the sheriff is authorised to evict them on or after
the 3rd of June 2024. Further, that the Appellant and all those occupying the property
through the Appella nt, be interdicted from taking occupation of the property after
being evicted.

[2] The Respondent applied in the court a quo for the eviction of and an interdict
against the Appellant and all those occupying the property through him. It was
submitted by t he Respondent that the property in question belongs to the Elias
Motsoaledi Local Municipality ("the Municipality"). However, on the 16th of July 2017,
the Municipality allocated the property by virtue of a council resolution as a place of
worship to the R espondent.

[3] The Respondent further submitted that despite the property having been
allocated to them, the Appellant and others occupying through him, enter the
property on a daily basis for purposes of building a lodge for the Appellant.

[4] Despite n umerous meetings having been held between several branch
members of the Respondent and the Appellant in Groblersdal, the Appellant
persisted that the property belonged to him. During 2019, the Appellant proceeded to
insert poles on the property as proof of ownership of the property.

[5] The Respondent submitted that it has a clear right in that the premises in
question was allocated to it and it had control over the premises since 2017 by virtue
of the Municipal resolution. Further that an injury is actual ly being committed against
the Respondent by the continuous entering at the property by the Appellant and
others, as well as the continued building operations without the consent of the
Respondent and further that the Respondent does not have any other alt ernative
remedy but to approach the court as an amicable solution could not be reached.

[6] The Respondent's first perm ission to occupy the property expired on about 4
October 2022, whereafter another resolution was adopted which extended the
permission to occupy the property.

[7] The Municipality's letter dated 28 September 2022 read as follows:­

"Dear Sir/Madam,
PERMISSION TO OCCUPY (PTO) TO USE PART OF ERF 4 […] LOCATED
ON PORTION 13 OF FARM KLIPBANK 26 JS (MASAKANENG).
The above bears reference.
Kindl y note that Council approved in favor of issuing Permission to Occupy to
the Zion Christian Church (ZCC) to use erf 4 […] located on portion 13 of farm
Klipbank 26 JS (Masakaneng) as a place of worship by virtue of Council
sitting dated 23 September 2022, it em DP22/23 -23 with the following
conditions attached:
1. That Council approved in favour of permanent occupation the ZCC to
use erf 4 […] as a place of worship.
2. That ZCC be liable fencing of the allocated parcel of land and its
safeguarding upon receipt o f this notice.
3. That this approval is not transferable.
4. That building and related activities be done in terms of the National
Building Regulation and Building Standards Act (103;1977).
5. That this approval does not exempt the applicant form complying with
any related regulation(s).
6. That the Municipality reserves the right to amend partly or wholly the
conditions towards awarding this PTO as and when it deems convenient.
Hop[e] and you will find the above in order."

[8] The Appellant in opposition to the Respondent's application submitted that the
Respondent had no locus standi to bring the application in that the Respondent
alleged that the aforesaid property was alloc ated to the Respondent by the
Municipality, however the Municipality is not the owner of the property, but the
National Government of the Republic of South Africa. It was therefore submitted that
the Municipality was not the owner of the property and fu rther had no authority to
allocated or lease out to the Applicant and on such basis the application stood to be
dismissed.

[9] The Appellant further submitted that the subject matter falls under the
Prevention of Illegal Eviction from and Unlawful Occupa tion of Land Act, Act 19 of
1998, which the Respondent clearly sought to ignore by bringing this application for
an interdict.

[10] The Appellant submitted that he has been allocated the property in the year
2010 already by the Masakaneng Development For um and has been occupying the
property freely and voluntarily without any disturbances since the allocation to him.
The Appellant further submitted that he fenced the property and planted trees
thereon. According to the Appellant, the property was dually a llocated to him and the
Respondent, which came as a surprise to him.

[11] The Appellant's grounds of appeal are fully set out in the Notice of Appeal,
which grounds will not be repeated herein. However, of importance is the fact that
the Appellant submit s that the court a quo erred and misdirected itself in finding that
the local authority (Municipality) has powers to alienate land belonging to the
National Government, which land can only be alienated by the registered owner, the
National Government of So uth Africa and that the Magistrate erred in finding that the
Respondent has complied with the administrative and procedural aspects of
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998
(PIE Act).

[12] I pause here to st ate that the state in which the record was provided to the
Appeal Court, leaves much to be desired. The record was incomplete and
supplementary affidavits and records were filed. Despite the filing of the
supplementary record, some documents for exampl e the Section 4(2) notices and
sheriff's returns were still not before the appeal court.

[13] It is clear from the grounds of appeal, as well as the submissions made during
argument in court that the Appellant relies on the Section 4(2) of the PIE Act No tices,
or rather the incompleteness alternatively the procedural and administrative lacking
aspects thereof as a ground of their appeal.

[14] From a reading of the transcribed record and the Court a quo's reasons, it is
clear that according to the court a quo , there were Section 4(2) of PIE Notices
served and filed. The following was stated in the transcribed record: -

"The app licant[s] is before Court in terms of and in accordance with the
provision of Prevention of Illegal Eviction from Unlawful Occupation Act 19 of
1998 PIE. The notice in terms of Section 4(2) of PIE was duly served on the
first, second, and third res ponde[nts] respectively. The applicant applied to
this Court for the following orders: -..."

[15] The court a quo in its written reasons also stated as follows: -

"This is an Application for the eviction brought by the Applicant against the
First, Second a nd Third Respondent of property situated at Erf 4 […] Portion
13 Farm KlipBank, Masakaneng. The Application is before court in terms of
and in accordance with the provisions of the Prevention of illegal eviction from
unlawful occupation Act 19 of 1998 (PIE). The notice in terms of section 4(2)
of the PIE was duly served on the First, Second and Third Respondents
respectively [See page 29 to 31.]

These notices were however not before the Appeal Court.

[16] From a reading of the transcribed record, it is clear that throughout the
argument of the application, the Appellant relied on the ground that this eviction
application falls within the ambit of the PIE Act and throughout has it been the
Respondent's argument that this property is not utilized for resid ential purposes and
therefore the PIE Act is not applicable. It was submitted by the Respondent that the
Appellant has an alternative residential address.

[17] I find it therefore difficult without the Section 4(2) notices as referred to by the
Court a quo which according to the court a quo appeared on page 29 to 31 to
determine whether there was compliance with the administrative and procedural
requirements of the PIE Act. However, as already stated, I find it also very surprising
that a finding is made that there was compliance with the requirements of the PIE
Act, whilst throughout it was the argument and submissions of the Respondent that
the application is not brought in terms of the PIE Act. There has also not been any
reference to the Section 4(2) o f the PIE Act Notices by the Respondent during its
argument.

[18] This court is therefore left in a position to be compelled to draw an inference.
The only reasonable inference that can be drawn is that the court a quo misdirected
itself in finding that there was compliance with the Section 4(2) requirements of PIE
as there was no evidence to this effect before this court.

[19] This then brings this court to the next question to be determined - whether the
PIE Act is indeed applicable to the present app lication for eviction and interdict. In
paragraph 2 and further at paragraph 6.3 of the Respondent's founding affidavit in
the court a qua, the following was stated: -

"The First Respondent is Mr. Rachidi Maboe, an adult businessman residing
at 4[…] S[…] Street, Groblersdal, Limpopo."

And at para 6.3: -

"6.3 Erf 4 […] of farm Klipbank, Groblersdal is a vacant site and the First and
Second Respondents enter the aforesaid premises daily for the purpose of
building a lodge for the First Respondent. "

[20] In response to the aforesaid paragraphs, the Appellant confirmed that he
resided at 4 […] S[…] Street, Groblersdal, Limpopo Province and further did not deny
that the property is entered on a daily basis for purpose of building a lodge for the
Appel lant. By a lodge being built, it is this court's understanding that the Appellant
intends on using the property for business purposes and the Appellant himself does
not reside at the property but at a different address at 4 […] S[…] Street, Groblersdal.

[21] The preamble of the PIE Act states as follows:­

"PREAMBLE
WHEREAS no one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of property;
AND WHEREAS no one may be evicted from thei r home, or have their home
demolished without an order of court made after considering all the relevant
circumstances;
AND WHEREAS it is desirable that the law should regulate the eviction of
unlawful occupiers from land in a fair manner, while recognising the right of
land owners to apply to a court for an eviction order in appropriate
circumstances;
AND WHEREAS special consideration should be given to the rights of the
elderly, children, disabled persons and particularly households headed by
women, and th at it should be recognised that the needs of those groups
should be considered;"

[22] In Section 1 of the PIE Act the following words are defined as follows: -

"1. In this Act, unless the context indicates otherwise -
(i) "building or structure" includ es any hut. shack, tent or similar structure
or any other form of temporary or permanent dwelling or shelter :
(ii) "consent" means the express or tacit consent, whether in writing or
otherwise, of the owner or person in charge to the occupation by the occu pier
of the land in question;
(iii) "court" means any division of the High Court or the magistrate's court in
whose area of jurisdiction the land in question is situated;
(iv) "evict" means to deprive a person of occupation of a building or
structure, or t he land on which such building or structure is erected, against
his or her will, and "eviction" has a corresponding meaning;
(v) "land" includes a portion of land;
(vi) "Minister" means the Minister designated by the State President;
(vii) "municipality" means a municipality in terms of section 108 of the Local
Government Transition Act, 1993 (Act No. 209 of 1993);
(viii) "organ of state" means an organ of state as defined in section 239 of
the Constitution of the Republic of South Africa, 1996 (Act No. 1 08 of 1996);
(ix) "owner" means the registered owner of land, including an organ of
state;
(x) "person in charge" means a person who has or at the relevant time had
legal authority to give permission to a person to enter or reside upon the land
in question;
(xi) "unlawful occupier" means a person who occupies land without the
express or tacit co nsent 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 (Act No. 31 of 1996)."

[23] It is clear from a reading of the PIE Act's preamble and the definitions that the
PIE Act is applicable to buildings utilized for residential purposes and not business
purposes. The PIE Act does not apply to eviction of juristic persons or persons not
using the property as a form of dwelling or shelter, in other words, residential
occupants. In the presen t matter, the property is not occupied for residential
purposes and therefore the PIE Act is not applicable. It then does not matter whether
there was indeed compliance with Section 4(2) of the PIE Act or not and whether the
court a quo erred in its reason ing in this regard by stating that there was indeed
compliance. The eviction therefore falls under the ambit of the common law.

[24] The next question arising is then whether the Respondent had the necessary
locus standi to bring the application for evic tion. It is not in dispute that the
Respondent is not the registered owner of the property, but merely a holder of a
permission to occupy issued by the Municipality. It is however clear that the
Respondent has a right to possess the property and is the per son in charge of the
property, therefore the court a quo correctly found that the Respondent has the
necessary locus standi to bring the application for eviction.

[25] Other than the two points in limine raised by the Appellant, the Appellant did
not pre sent any other opposition or defence to the Respondent's application except
to state that he has been awarded the property by the Masakaneng Development
Forum. The Appellant only attached a confirmatory affidavit by one Amos
Majamorwa Monate, but failed to attach any proof of title or permission to occupy the
said property. In the result, the court a quo correctly found in favour of the
Respondent by granting the application as prayed for in the Notice of Motion. The
appeal therefore stands to fail.

[26] In the result, the following order is made: -

1. The appeal is dismissed with costs.



M. NAUDE -ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE

I AGREE:


L. NKOANA
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE


APPEARANCES:

HEARD ON : 28 FEBRUARY 2025
JUDGMENT DELIVERED ON : 15 MAY 2025.
: This judgment was handed down
electronically by circulation to the parties'
representatives by email. The date and
time for hand -down of the judgment is
deemed to be 15 MAY 2025 at 1 0h00

FOR THE APPELLANT : Mr. P.C. Mogale

INSTRUCTED BY : P.C. Mogale &Co Inc. Attorneys
Polokwane
accounts@pc mogaleinc.co.za
mogalephaswanecedric@g mail.corn

FOR RESPONDENT : Mr. M.D. Hlatshwayo

INSTRUCTED BY : Hlatshwayo -Mhaayise Inc. Attorneys
mctsheogaattorney@g maiI.co m