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REPUBLIC OF SOUTH AFRICA







THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: 7772/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 18/06/25
SIGNATURE:

In the matter between:

GREATER LETABA MUNICIPALITY APPLICANT

and

SOLLY BOPAPE 1ST RESPONDENT

MANGANI MTABARIRA 2ND RESPONDENT

ALL OTHER UNKNOWN PERSONS UNLAWFULLY 3RD RESPONDENT
OCCUPYING THE PROPERTY DESCRIBED AS

ERF 1[...], PORTION 8 OF THE FARM MEIDINGEN
398, REGISTRATION DIVISION L.T, LIMPOPO PROVINCE


JUDGMENT

NKOANA A.J

Introduction

[1] On 22 October 2021, the Applicant issued out of this Court an application in
terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
No 19 of 1998 (" PIE").

[2] The Applicant sought the followi ng prayers:

2.1 That the First, Second and Third Respondents be evicted from the
property described as Erf 1[...], Portion 8 of the Farm Meidingen, 398,
Registration Division L.T, Limpopo Province (hereafter referred to as "the
property").
2.2 The Applicant further sought ancillary orders that the Respondents'
must vacate the property within fourteen (14) days from the date of the Court
Order. Should they fail to vacate the said property, then the Sheriff of the
Court or his Deputy should be directed to fort hwith evict the Respondents
from the property with the assistance of the members of the South African
Police Service and or locksmith, should it become necessary.

The Parties

[3] The Applicant is the Greater Letaba Municipality, a local sphere of
Government, established in terms of Section 12 of the Local Government: Municipal
Structures Act 117 of 1998, as well as Section 155 of the Constitution of the
Republic of South Africa.

[4] The First Respondent for the purpose of the application was served at his
attorneys' offices.

[5] The First Respondent is described as a major person being in unlawful
occupation and control of the property. He is the person at whose instance the other
Respondents also occupy the property unlawfully, and without authoriz ation of the
Applicant.

[6] The Second Respondent is described as an adult female, Zimbabwean
national who unlawfully occupies the property without the Applicant's authority.

[7] The Third Respondent is all other unknown persons, unlawfully occupying the
Property.

Applicant's Case

[8] On 14 August 2017, the Department of Public Works, Roads and
Infrastructure, which is the custodian of state -owned immovable assets, initiated a
process of donating the property from the Limpopo Provincial Government to the
Applicant.

[9] On 16 October 2017 the Applicant through its accounting officer accepted the
donation. This culminated in the property being transferred and registered in the
names of the Applicant on 10 January 2019.

[10] The property is fully described as Portion 8 of the Farm MEIDI NGEN 398,
Registration Division L.T, Limpopo Province situated in the township of Ga -Kgapane.
Portion 8 consists of several erven, including Erf 1[...], which is the subject of this
application.

[11] The Applicant avers that the Respondents are currently occ upying the
property without the necessary permission from it.The Respondents have not sought
or received permi ssion from the Applicant or its Council to occupy the Property.

[12] In terms of the Letaba Land Use Management Scheme of 2008, the property
is zoned as government property and not a residential area.

[13] The Applicant avers further that the property was previously used as a traffic
testing station by the Applicant. It has two old Government Buildings which are now
being occupied by the Respondents .

[14] The Applicant's officials and attorney inspected the property and found the
Second Respondent, who claimed that the First Respondent had given her
permission to occupy it.

[15] The Applicant's attorneys dispatched letters to the Respondents, r equesting
them to vacate the Property as they were in unlawful occupation.

[16] The Applicant's letters were met by a response from the First Respondent's
attorney, who recorded in no uncertain terms that the First Respondent was the
rightful owner of the property and will not vacate it.

[17] Faced with no other alternative, the Applicant launched eviction proceedings
against the Respondents in this Court. On 15 March 2022 , the form and contents of
the Notice in terms of Section 4(2) of PIE was authorize d and eventually served on
the Respondents.

Respondents' Case

[18] On 21 April 2021, a letter was dispatched by the First Respondent's attorneys,
who recorded that the First Respondent was the owner of the Property and that he
will not vacate it.

[19] On 15 February 2023, the First Respondent filed an Answering Affidavit
resisting the eviction order applied for by the Applicant.

[20] The First Respondent raised a Special Plea of Non -Joinder, which related to
the Applicant's failure to join three parties namely; the National Minister of
Cooperative Governance, the Provincial MEC of Co -operative Governance, as well
as Modjadji Traditional Authority as these parties have a direct and substantial
interest in the litigation.

[21] The Special Plea is in the body of the Answering Affidavit and appears on
page 11 of the Answering Affidavit. Pages one (1) to the middle of page eleven (11)
were dedicated to the historical account regarding the property.

[22] The First Respondent conceded that he took occupat ion of the property
sometime before the year 2012 after he noticed the existence of Erf 1[...] Ga-
Kgapane "A".

[23] He records further that he realized that the said Property could present an
opportunity for future commercial development and thus he embarke d on making
equeries with relevant authorities regarding the possible acquisition of the property.

[24] The First Respondent avers that he approached an official of the Limpopo
Government and indicated that he wished to make an offer to buy the Property. H e
was then directed to the Modjadji Royal Council, the traditional authority in whose
area of jurisdiction the property falls.

[25] According to the First Respondent he approached the Headman, one Edican
Rapitsi and expressed his wish to buy the Property. He paid an amount of R120,000
for the said property and later took occupation.

[26] The First Respondent submitted documents to the Applicant for the issuance
of a Permission to Occupy ("PTO"). The Applicant refused to issue the said PTO but
instead init iated a process of evicting him.

[27] It is common cause that the Applicant's application to evict the First
Respondent launched in the Magistrate Court of Kgapane was unsuccessful, as at
that stage the Applicant was not the registered owner of the propert y.

[28] The First Respondent then narrates the steps that he took by approaching the
Provincial Department of COGHSTA. A report was written which had
recommendations favourable to him, however the Applicant failed to implement the
set recommendation.

[29] In the meantime, the Applicant became the registered owner of the property
on 10 January 2019, as is evidenced by the Title Deed. Later on the Applicant
instituted the current eviction proceedings.

[30] The First Respondent was dissatisfied with how the d ispute between the
Applicant and himself regarding the property was managed. In 2021, he lodged a
complaint with the Local Government Support and Improvement Management Unit at
the National Department of Cooperative Governance.

[31] The said dispute was in vestigated, and a report which had recommendations
was compiled. In sum it was recommended that the property be sold to the First
Respondent by the Applicant . However, for one reason or the other those
recommendations were not implemented.

Determination of Issues

[32] I am called upon to first determine whether the Applicant has locus standi to
institute this proceeding. Thereafter, I must determine if the Respondents are
unlawful occupiers, and if I find that they are, I must then deci de if it is just and
equitable to grant an eviction order.

[33] If after undergoing this exercise I find that it is just and equitable to grant the
eviction order, then I must make further enquiries whether the order for eviction
should be granted and if s o, I must make a determination of the date on which the
order may be executed.

[34] Before I can delve into the requirements of PIE, I must first consider the
Special Plea of non -joinder as raised by the First Respondent.

[35] The First Respondent as menti oned contends that the Minister of Cooperative
Governance, the MEC of COGHSTA as well as Modjadji Royal Council ought to
have been joined in these proceedings.

[36] The question that needs to be answered is whether these Parties are having a
direct and sub stantial interest in the subject matter, warranting them to be joined in
the proceedings so that they can safeguard them.

[37] The test of non -joinder was formulated by the Supreme Court of Appeal in the
case of ABSA BANK LTD vs NAUDE N.O. [2015] ZASCA 9 7 at paragraph 12 as
follows.

"The test whether there has been non -joinder is whether a party has a direct
and substantial interest in the subject matter of the litigation which may
prejudice the party that has not been joined."

[38] The crisp issue in this case involves the property t hat is owned by the
Applicant. The said property is occupied by the Respondents. The Order sought
pertains to the eviction of the Respondents from the property.

[39] I am unable to see what the Minister of Cooperative Governance , the MEC of
COGHSTA and th e Modjadji Royal Council's direct and substantial interests in the
property are.

[40] I find that the Special Plea of Non Joinder has no merits as these parties do
not have a direct and substantial interest that seeks protection, as the order sought
does n ot affect them.

[41] In the result, the Special Plea/ Point in limine of non -joinder is dismissed with
costs.

[42] I now turn to the merits of the application. It is settled law that no one can be
arbitrarily deprived of his/her property without due proce ss. Section 26(3) of the
Constitution provides that "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". See RESIDENTS OF JOE SLOVO COMMUNITY, WESTERN
CAPE V THUBELISHA HOMES CENTRE ON HOUSING RIGHTS AND EVICTION
AND ANOTHER, Amici Curiae 2010 (3) SA 454 (CC) at 527E - 528G).

[43] In the case of MACHELE V MA ILULA 2010 (2) SA 257 (CC) at 262 C -D the

Constitutional Court stated as follows:

"The Application of PIE is not discretionary. Courts must consider PIE in
eviction cases. PIE was enacted by Parliament to ensure fairness in the
legitimacy of eviction proceedings and to set out factors to be taken into
account by a Court when considering the grant of an eviction order. Given that
evictions naturally entail conflicting constitutional rights, these factors are of
great assistance to Courts in reaching constitutionally appropriate decisions."

[44] It is common cause that the Applicant is the owner of the pro perty and that the
best evidence to prove ownership of an immovable property is the Title Deed.See
GAUDIN CHROME (PTY) LIMITED V MCC CONTRACTS (PTY) LTD 1993(1) SA 77
A at 82.

[45] On 10 January 2019 the property was transferred to the Applicant and is hel d
under Title Deed No. T000000051/2019.

[46] I find that the Applicant has established its locus standi as it is the owner of
the Property as envisaged by the PIE Act in particular Section 1(ix).

[47] The next question to be determined is whether the Respo ndents are in
unlawful occupation. The Respondents have not been granted consent to occupy the
Property by the Applicant.

[48] Irrespective of whether the Respondents possession of the property was
lawful at an earlier stage. See NDLOVU V NGCOBO;BEKKER V JI KA 2003 (1) SA
113(SCA) AT 122 D

[49] The Respondents defence of a prior agreement, vesting a personal right to
transfer of immovable property can never supersede and prevail over a real right of
ownership. See MIYA V MATLEKO -SEIFERT 2023(1) SA 208(GJ) AT 214A -D

[50] It is apposite to address the following, section 40 of the Constitution of the
Republic of South Africa provides as follows:

"[40] Government of the Republic

(1) In the Republic, government is constituted as national , provincial and
local s pheres of government which are distinctive , interdependent and
interrelated.

(2) All spheres of government must observe and adhere to the principles in
this Chapter and must conduct their activities within the parameters that the
Chapter provides.

[51] Section 41 of the Constitution states as follows;

[41] Principles of co -opera tive government and intergovernmental relations
(1) All spheres of government and all organs of state within each sphere
must:
(a) preserve the peace, national unity and the indivisibility of the Republic;
(b) secure the well -being of the people of the Re public;
(c) provide effective, transparent, accountable and coherent government
for the Republic as a whole;
(d) be loyal to the Constitution, the Republic and its people;
(e) respect the constitutional status. institutions. powers and functions of
government in the other sphere
(f) not assume any power or function except those conferred on them in
terms of the Constitution ;
(g) exercise their powers and perform their functions in a manner that does
not encroach on the geographical. functional or ins titutional integrity of
government in another sphere; and
(h) co-operate with one another in mutual trust and good faith by
(i) fostering friendly relations
(ii) assisting and supporting one another;
(iii) informing one another of, and consulting one another on, matters of
common interest;
(iv) co-ordinating their actions and legislation with one another;
(v) adhering to agreed procedures; and
(vi) avoiding legal proceedings against one another."

[52] My interpretation of these Constitutional provisions is that there are distinct,
interdependent, and interconnected spheres of Government. Each sphere must
respect the Constitutional status, institutions, and functions of the other spheres.

[53] The di fferent spheres may only exercise the powers and functions explicitly
granted to them by the Constitution. Additionally, they must not infringe upon the
roles and responsibilities of other spheres.

[54] The reports generated by the National and Provincial Department of
COGHSTA, contained recommendations. Recommendations by their nature are not
binding. The Applicant, which is run through its Council, is at liberty to take its own
decisions without being dictated by another sphere of government.

[55] The Fir st Respondent recorded his intentions to approach Court to seek relief,
as the property was transferred from Limpopo Government to the Applicant during
the period of their dispute. As at the hearing of this matter no such legal challenge
had ensued. I find then that the Respondents have no justifiable right to occupy the
Property and are unlawful occupiers .

[56] The next question then that must be answered is whether it is just and
equitable to evict the Respondents. The First Respondent in his Answering A ffidavit
(at paragraph 2.12) put it bluntly as follows:

"I realised that the subject property could present an opportunity for future
commercial development, and I decided to make enquiries, from relevant
authorities, with regard to the possible acquisitio n of the Erf."

[57] The First Respondent further concedes that the Second Respondent is his
employee who is occupying the property through him. The Applicant stated that the
Property is an old testing station which comprises of two Government Buildings.

[58] The First Respondent did not present any substantive relevant facts to the
Court demonstrating that their eviction would be unjust and inequitable. Their
submission predominantly consisted of a historical narrative, which is not pertinent to
the consi derations under PIE.

[59] The Applicant is entitled to possession of its property and to an ejectment
order against any person who is unlawfully occupying the said property. See
WORMALD N. O AND OTHERS V KAMBULE 2006 (3) SA 563 (SCA) para 11. I find
that it is just and equitable that the Respondents must be evicted.

[60] The discretion that this Court exercises is wide and an eviction can only be
granted if it is just and equitable to do so after all the relevant circumstances have
been considered.

[61] Relevant circumstances are nearly without fail, falls within the exclusive
knowledge of the occupiers and it cannot be expected of an owner to negate and
advance facts not known to him.

[62] In this regard, see CITY OF JOHANNESBURG V CHANGING TIDES 74 (PTY)
LTD AND OTHERS 2012(6) SA 294 (SCA) paras 28 to 34.

[63] No evidence has been placed before this Court which seeks to suggest that
the Respondents will be rendered homeless by the eviction. As stated, an inference
can be drawn from the fact that the First Respondent concedes that he is the one
who placed the Second Respondent in the property which is earmarked for
commercial interest.

[64] This shows that the First Respondent resides elsewhere, and the Second
Respondent has taken physical occupatio n of the property through the First
Respondent.

[65] I cannot fault the submissions made by the Applicant that the First
Respondent appears to be a man of means. There is nothing in the Answering
Affidavit of the First Respondent which contradicts this vie w. I find that it is just and
equitable to grant an eviction order against the Respondents.

[66] What is left then is the terms and conditions of such an eviction and the date
thereto.

[67] The Applicant submitted that a period of fourteen (14) days from the granting
of the order would be equitable for the Respondents to be evicted. I, however, do not
agree with this submission because the Respondents' occupation of the property has
been for a considerable number of years.

[68] I am of the view that a period of thirty (30) 30 days from the granting of this
order will be sufficient for the Respo ndents to vacate the property.

[69] I am satisfied that that the Applicant has made out a proper case for the
eviction of the Respondents.

Costs

[70] I see no reason why costs should not follow the result. The Applicant
submitted that the First Respondent should pay the costs on an attorney and client
scale. I disagree. The Applicant has not made out the case as to why the Court must
grant punitive costs.

[71] In the result I make the following order:

72.1 That the First, Second and Third Respondents be ev icted from the
Property described as Erf 1[...], Portion 8 of the Farm Meidingen 398,
Registration Division L.T, Ga -Kgapane Township Limpopo Province
(hereinafter referred to as " the Property ")
72.2 That the First, Second and Third Respondents be ordered to vacate
the Property within thirty (30) days from the date of this order.
72.3 That should the First, Second and Third Respondents fail to vacate the
Property within the stipulated thirty (30) days, the Sheriff of the Court and/or
his Deputy are authorized and directed to forthwith evict the First, Second and
Third Respondents from the Property.
72.4 That the Sheriff and/or his Deputy be authorized and directed to take
all legal steps to carry out the order as per prayer 3 above, for which purpose
the Sherif f and/or his Deputy may enlist the Services of the South African
Police Services and/or a locksmith to effect the above, should it be necessary.
72.5 The First Respondent is ordered to pay the costs on a party and party
scale, such cost to include costs o f Counsel on Scale "B".



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


Heard on 21 Novemebr 2024

Judgment delivered on:

18 June 2025

This Judgment was handed down electronically by circulation to the Parties'
representatives by e -mail, the date and time for hand down of the Judgment is
deemed to be 18 June 2025 at 10:00.

For the Applicant

Adv. PM Ramoshaba
Instructed by Modjadji Raph esu Inc Attorneys
Polokwane

For the First Respondent

Adv. G.J Diamond
Instructed by Diamond Incorporated.
Polokwane