SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: M408/2023
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
In the matter between:
INNOCENT PHIWAYINKOSI MAZIBUKO First Applicant
THUSO BILLY TSHEPSIO SEEMISE Second Applicant
DANIEL PHASA Third Applicant
JOHNSON THEMBA ZULU Fourth Applicant
MMAPEO ROSSY MOEPI Fifth Applicant
KAGISO JEFFREY KGOSIEMANG Sixth Applicant
GUGULETHU NGCOBO Seventh Applicant
FRANS JOSIA MODISANE Eighth Applicant
ROSSA MMAMPHO MOEENG Ninth Applicant
NKATLHOLANG WILLIAM MOEPI Tenth Applicant
KGALALELO GLORIA RAMENWE Eleventh Applicant
TYRONE CHRESTEN KOK Twelfth Applicant
ALTHIENNE CHRISTEL KOK Thirteenth Applicant
KAGISO ELIAS MANJIE Fourteenth Applicant
NTOKOZO NQABENI Fifteen Applicant
MAPULE NONVULA THOLA Sixteenth Applicant
LOUISA NYEMBE Seventeenth Applicant
SIBUSISO NQABENI Eighteenth Applicant
OBAKENG RAYMOND GAOTINWE Nineteenth Applicant
and
RUSTENBURG LOCAL MUNICIPALITY Respondent
CORAM: PETERSEN J
HEARD: 15 AUGUST 2024
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives via email. The date and time for hand -down is deemed to be 10h00am
on 06 JANUARY 2024.
ORDER
1. The conduct of the respondent in evicting the applicants from their homes
and demolishing the dwellings and/or structures they erected on the vacant
land along G[...] Street in Karlien Park, forming part of The Remainder of
Portion 1 of the Farm Town and Townlands of Rustenburg 272 JQ (Erf
2[…]) (“the property”) without a valid or lawful court order is declared
unlawful, invalid and inconsistent with section 26(3) of the Constitution of
the Republic of South Africa, 1996; and the Prevention of Illegal Evi ction
from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
2. It is further declared that the order of this Court issued on 10 October 2019,
does not apply to the applicants or any other person since the order
achieved the purpose for which it was issued at the time. The order does
not apply in perpetuity.
3. The respondents are directed to restore the applicants’ possession of the
property and to construct suitable dwellings for the applicants on the
property within thirty (30) days of the order of this Court alternatively to
accommodate the applicants on other suitable property identified by the
respondent with due regard to the personal circumstances of the applicants.
4. The respondent is directed, if possible, to return all personal belongings o f
the applicants in its possession or the possession of its agents within thirty
(30) days of the order of this Court. If compliance with this order is not
possible in respect of the personal belongings of the applicants , the
applicants retain the right to institute a claim for damages against the
respondent, if so advised.
5. In the event of possession of the property being restored to the applicants,
the respondent is interdicted and restrained from again evicting and
demolishing the applicants’ dwellings on the property without a valid or
lawful court order.
6. The respondent shall pay the costs of the application , which costs shall
include the costs of employing counsel.
JUDGMENT
PETERSEN J
Introduction
[1] This application, one of many that engage the attention of our Courts on a regular
basis, implicates the vindication of the right to housing. It evinces epithets often
coined by our Courts in seeking to highlight the problem in our nascent
democracy, where the values entrenched in the Constitution evade most of our
people. In a most recent decision of the Constitutional Court in Charnell
Commando and Others v City of Cape Town and Another (CCT 49/23) [2024]
ZACC 27 (20 December 2024), Mathopo J, writing for the majority stated as
follows:
‘[1] “We have a long way to go because we still live with the legacy of apartheid,
the legacy of v iolence, the legacy of separateness, of suspicions around people,
the legacy of tremendous disparities between white and black, the legacy between
some living in opulence and some in dire poverty, the legacy of racism.” This
statement is by Abdullah Mohame d Omar, a man who held many titles, but
relevant to this matter, a renowned freedom fighter and a lawyer who was
compelled to move his practice to Woodstock, Cape Town due to the stringent and
racist provisions of the Group Areas Act in the 1960s. He made this statement
during the post-apartheid era, lamenting the fact that very little had changed in the
lives of some members of the community.’…
[86] While social housing is undoubtedly important, it should not come at the
expense of the human rights of o thers and their basic dignity. To the extent that
both social and emergency housing lie at one end of the spectrum, a distinction
may be made between individuals who meet the financial threshold for social
housing, and are therefore capable of affording t he basic housing, and those who
lack the means to do so. The latter face heightened vulnerability and, as such, are
at the state’s mercy for the realisation of their constitutionally enshrined right of
access to adequate housing by virtue of their dire pl ight but distinct circumstances
which warrant urgent consideration. The under-emphasis of emergency housing
has the effect of disregarding those who urgently require assistance from the state,
for reasons beyond their control. “The Constitution obliges t he state to act
positively to ameliorate these conditions.” In Mazibuko, this Court held:
“At the time the Constitution was adopted millions of South Africans did not have
access to the basic necessities of life, including water. The purpose of the
constitutional entrenchment of social and economic rights was thus to ensure
that the State conti nue to take reasonable legislative and other measures
progressively to achieve the realisation of the rights to the basic necessities of
life. It was not expected, nor could it have been, that the State would be able to
furnish citizens immediately with a ll the basic necessities of life. Social and
economic rights empower citizens to demand of the State that it act reasonably
economic rights empower citizens to demand of the State that it act reasonably
and progressively to ensure that all enjoy the basic necessities of life. In so
doing, the social and economic rights enable citiz ens to hold government to
account for the manner in which it seeks to pursue the achievement of social and
economic rights.”
[2] The applicants approach this Court seeking an order in the following terms:
“1. Declaring the conduct of the Respondent of evicting the Applicants from their
homes and demolishing the dwellings and/or structures they erected on the
vacant land along G […] Street in Karlien Park (“Property”) without a valid or
lawful Court Order to be unlawful, invalid and inconsistent with the Constitution
and the Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (“PIE”).
2. Directing the Respondent to restore the Applicants’ possession of the Property
and construct dwellings for the Applicants on the Property equivalent to those
it demolished within 30 days of the Order of this Court.
3. Directing the Respondent to return all personal belongings of the Applicants in
its possession or the possession of its agents within 30 days of the Order of
this Court.
4. Interdicting and restraining the Respondent from, once again, evicting and
demolishing the Applicants’ dwellings on the Property without a valid or lawful
Court Order.
5. Directing the Respondent to pay the costs of this suit, including the costs of
employing counsel.
6. Granting such further and/or alternative relief as this Honourable Court may
deem fit.”
[3] The purpose of the application evident from the relief sought and stated in the
founding affidavit is declaratory in nature and seeks a mandamus against the
respondent.
Parties
[4] The applicants, the occupiers of the land situate at G[...] Street, Karlien Park (‘the
property’), will be referred to as the occupiers of the property.
[5] The respondent the Rustenburg Local Municipality, which opposed the relief
sought, will be referred to as the Municipality.
The background sketched by the applicants
[6] The occupiers of the property relying in the main on the facts deposed to by the
first applicant in the founding affidavit, sketch the following backgroun d. The y
started occupying the vacant property from 2019 until July 20 22 by erecting
structures of varying kinds and sizes, based on their respective personal
circumstances. The reason for occupying the property is based on the occupiers of
the property being from disadvantaged backgrounds and desperation for a place to
call home.
[7] The first applicant avers that he occupied the property in August 2021, to establish
a home for himself and his family which constituted his partner and one year old
son at the time of the eviction. He states that although he is employed, he w as
unable to enter the property market as he did not qualify for a bond or a RDP
house.
[8] The second applicant, an unemployed male, avers that he occupied the property in
2019 where he lived alone in the one and half room structure he built from pre-cast
concrete walling.
[9] The third applicant, employed as a security guard, started occupying the property
on 1 January 2022 where he lived in a one room shack with his partner.
[10] The fourth applicant, an unemployed male, avers that he started occupying the
property on 5 July 2021. He had been living at his parental home and wanted to
start a life of his own when he occupied the property. He erected a two -room
shack where he resided alone.
[11] The fifth applicant, an unemployed female, avers that she started occupying the
property around June 2021 on the basis that she needed a more secure place to
stay with her family. She erected a one -room shack and one room-house with pre-
cast walling which she occupied with her two minor children.
[12] The sixth applicant, an employed rock drill operator, started occupying the property
on 1 June 2021. He erected a three -room house with pre -cast walling with an
additional one-and-a-half room shack, which he occupied with his brother.
[13] The seventh applicant, an employed cashier, started occupying the property on 2
August 2021. She erected a two -room house with pre -cast walling, which she
occupied with her sister.
[14] The eighth applicant, an employed assistant boilermaker, started occupying the
property on 1 January 2021. He erected a two -room shack which he occupied with
his partner and three minor children. He claims that he occupied the property in
search of a more secure place to live. Prior to occupying the property , he rented a
room for R800 per month, and presently rents a two -bedroom house at R800 per
month where he resides with his partner and three minor children. He asserts
convenience for work purposes and costs savings of travelling, as a factor for
occupying the property.
[15] The ninth applicant, a self -employed female, started occupying the property on 15
June 2021, as she wanted a home for herself and her two minor children. She had
been renting a roo m at R400 per month prior to occupying the property. She
erected a three-room house with pre -cast walling. She presently rents a two -room
shack at a cost of R500 per month, which she asserts she cannot afford.
[16] The tenth applicant, an unemployed male, started occupying the property on 6 July
2021 as he wanted a home of his own. Prior thereto, he lived with is cousin at a
rental property. He erected a one -and-a-half room house with pre -cast walling
where he resided alone. He presently lives in a backroo m at his sister’s home at
no cost to himself.
[17] The eleventh applicant, an a dult female alleges that that she employed as a
[17] The eleventh applicant, an a dult female alleges that that she employed as a
receptionist and later claims to be unemployed, started occupying the property
during 2021 when she lost her employment at that stage and could no longer
afford the rental where she was residing. She erected a three-bedroom shack on
the property at a costs R12 000.00 and resided there with her two unemployed
cousins. She presently resides with her aunt and cousin at no cost to herself.
[18] The twelfth applicant, an unemployed male, started occupying the prop erty during
February 2022, as he was unemployed and could not afford to pay rent. He
erected a one -room shack on the property where he resided alone. He presently
resides at his elder brother’s property with his partner and son, in a caretaking
capacity.
[19] The t hirteenth applicant, an unemployed male, started occupying the property
during 2021, as he wanted to establish a stable home for himself. Prior thereto, he
lived with his mother and sister in a one room apartment which he shared with his
mother and sister at a cost of R1200 per month. He erected a one rom shack on
the property. He presently resides with a friend in a one -room garage which his
friend rents.
[20] The fourteenth applicant, an unemployed female, started occupying the property
during July 2022, as she wanted to establish a stable home for herself. Prior
thereto, she lived with a friend. She erected a two -room shack on the property
which she lived with her sister and six -year-old disabled daughter. She presently
rents a room at R2500.00 per month, using the disability grant of her daughter and
funds provided by her brother for such rental.
[21] The fifteenth applicant, an employed male artisan, started occupying the property
during February 2022. He avers that he started occupying the property as he did
not have stable employment and could not afford to rent any property. He,
however, asserts that he was renting a room at R850 per month. He erected a
one-and-a-half room house using per -cast concrete walling where he resided
alone. He presently resides at his parental home with four adult siblings.
alone. He presently resides at his parental home with four adult siblings.
[22] The sixteenth applicant, an unemployed female, started occupying the property
during February 2022, as she could not afford rent, albeit that she rented a room
for R1300 per month. She erected a one -room shack on the property with building
material supplie d by a friend’s mother. She resided there with her three minor
children. She presently rents a back room at R1000 per month.
[23] The seventeenth applicant, a self-employed female, started occupying the property
during March 2022 as she did not have a stable income and needed a place of her
own. She rented a room at R1300 per month. She erected a two -room shack
which she occupied with her minor son and two minor nephews. She presently
lives in a one-room shack with her son and nephews with no cost indicated.
[24] The eighteenth applicant, a self -employed adult male, started occupying the
property during February 2022, as he did not have a stable income and needed a
place of his own. He was renting a room at R2500 per month. He erected a two -
room shack wit h income he generated as a mobile mechanic. He resided at the
property alone. He presently rents a backroom at R2000 per month.
[25] The nineteenth applicant, a self -employed adult male, started occupying the
property during May 2022 as he did not have a consistent income and needed a
place of his own to call home. Prior thereto he rented a property at R1000 per
month. He erected a one -room house on the property with pre -cast concrete
walling and a one -room shack, which he occupied with his partner and mi nor son.
He presently rents a one-room shack at R750 per month.
Post eviction
[26] The occupiers of the property state that post eviction, they were made aware of a
court order of 6 March 2018 under case number UM38/2018 (‘ the 2018 court
order’). The order concerns eviction proceedings between the Rustenburg Local
Municipality and the Unlawful Occupiers of Stand Numbers 37, 38, 40, 41, 42, 43,
44, 45, 46, 47, 48, 49, 50 and 51 of Extension 12, Zinniaville, Rustenburg, the
Unlawful Occupiers of the Remaining Stands situated at Extension 12, Zinniaville,
Unlawful Occupiers of the Remaining Stands situated at Extension 12, Zinniaville,
Rustenburg; and any other person who intends on taking occupation of stands or
any portion thereof situated at Extension 12, Zinniaville, Rustenburg, amongst
others.
[27] The occupiers of the property contend that the 2018 court order does not relate to
them as the property they occupied is in Karlien Park and not Zinniaville; they were
not the respondents in that matter; and that it was imperative for the applicant to
apply for an order to evict them if it considered that it had a legal basis to do so.
[28] In concluding the founding affidavit, the occupiers of the property set out the law
relevant to evictions by way of argument. It is trite in terms of the common law and
the Uniform Rules of Court that affidavits filed in applications should be restricted
to facts. Legal propositions have no place in affidavits and are best left for its
proper place in heads of argument or oral submissions by Counsel. The
Municipality sim ilarly and to a greater extent than the occupiers of the property,
falls foul of this salient principle.
The opposition to the application
[29] The answering affidavit of the Municipality is by no means a model of clarity. The
content overall is replete with legal argument and an exposition of various legal
concepts relevant to applications of this nature . It does not tangentially and
meaningfully engage with the facts on which the applicat ion is based, and the
factual basis for its opposition.
[30] The only content of the answering affidavit of the Municipality that deals remotely
with facts is found in the very brief background it sketches relevant to the eviction.
Even then, that background is predominantly predicated on legal argument.
[31] The background facts averred by the Municipality is essentially this. The property
invaded by the applicants is identified as ‘The Remainder of Portion 1 of the Farm
Town and Townlands of Rustenburg 272 JQ (Erf 2[...])’ (‘Portion 1 properties’) .
This constitutes all vacant land which has not been zoned by the Rustenburg Local
Municipality. The Municipality contends that the occupiers of the property
Municipality. The Municipality contends that the occupiers of the property
mistakenly refer to the property as G[...] Street, Karlien Park. The remainder of
Portion 1 is accommodated in the ‘Cities Planning for the Development of Roads
and Housing ’ in terms of which construction is underway and controlled by
available resources made available by the National and Provincial Treasuries.
[32] The Municipality contends that it has over the years experienced a crisis where
Portion 1 properties were invaded, which includes Erf 2[...]. To this end, the
Municipality contends it launched a n application on 10 October 2019, to prevent
invasion of all the properties under the remainder of Portion 1, and the erection of
any structures and/or occupation of unoccupied structures. Notably, the 2019
order confirmed a rule nisi which had previously been issued. The application was
successful, and an order was issued under hand of Judge President Hendricks
(Deputy Judge President as he then was). The order was granted at a time when
the structures on the property were unoccupied , and the stands illegally acquired
with the intention to establish an informal settlement.
[33] The relevant parties in the 2019 application were the Rustenburg Local
Municipality and the Unlawful Invaders of Remaining Portion 1 of the Farm Town
and Townlands of Rustenburg 272JQ ( cited as the first respondent therein). The
2019 order reads as follows:
“1. THAT: The rule nisi be and is hereby confirmed in the following terms:
1.1. That the First Respondent be and is hereby ordered not to
invade REMAINDE R OF PORTION 1 OF THE FARM TOWN
AND TOWNLANDS OF RUSTENBURG 272JQ, and/or to
demarcate stands or erects structures on the property, and/or
reside on the property.
1.2. That all of the First Respondents who have erected unoccupied
structures at the date of this order be ordered and interdicted
not to take possession of same, and/or not to reside in same.
1.3. That the Second and Third Respondents be ordered to assist
the Sheriff in enforcing the above stated order, should the First
respondent not comply with same.
1.4. That the Sheriff, with protection of the Second and Third
Respondents (if necessary), be authorized to demolish all
unlawful, unoccupied structures and dema rcations at the
property situated at REMAINDER OF PORTION 1 OF THE
FARM TOWN AND TOWNLANDS OF RUSTENBURG 272JQ.
1.5. At the First respondents, be ordered and interdicted not to be in
a radius of 100 meters from REMAINDER OF PORTION 1 OF
THE FARM TOWN AND T OWNLANDS OF RUSTENBURG
272JQ, with intention of violating the terms of the
aforementioned orders…”
[34] The Municipality therefore contends that the 2019 order applied to the applicants
and all other members of the public. It is based on the 2019 order t hat the Sheriff
and the South African Police Service, on 22 August 2022 demolished unoccupied
illegal structures on the property.
Submissions
[35] The occupiers of the property do not disp ute that the Municipality may institute
proceedings for purposes of evicting illegal occupiers and demolishing their
structures, but contend that the Municipality in casu , failed to do so, which
consequently renders its conduct unlawful. They contend that the attempt by the
Municipality to rely on the 2019 order does not justify the alleged unlawful eviction
of the occupiers of the property and the demolition of their dwellings and/or
structures.
[36] The occupiers of the property further contend that the 2019 court order did not
apply to the occupiers of the property in 2022, as they were not part of that group ;
and makes no reference to potential occupiers and/or future occupation. With
reliance to two authorities, Potential Unknown Occupiers of Erf, Man tsopa v
Municipality and another v Mantsopa Local Municipality (1381/2015) ZAFSHC 162
(28 August 2015); and Residents of Mooidraai Farm, Sasolburg v Metsimaholo
Local Municipality and Others [2020] JOL 46526 (FB), the occupiers of the
property contend that there is no such person as a potential unlawful occupier in
terms of PIE.
[37] In Residents of Mooidraai Farm, Sasolburg v Metsimaholo Local Municipality and
Others, the court found that the 2017 court order must be considered against the
prevailing factual background and the circumstances at the time of the granting of
the order. It then specifically found that it would be improper to expect the court to
take into account the circumstances of unlawful occupiers who were not in
occupation of the land then, but only in the future; since the court would not be in a
position to implement the provisions of PIE to persons and situations which were
not in existence or had arisen yet. To do so it found would be a gross violation of
the rule of law, PIE and the C onstitution for the court to apply the circumstances
relevant to the unlawful occupiers of land in 2017 to the applicants, who only
occupied the land during 2019, without giving them the right of audience in
accordance with the audi alteram partem rule. The court found that the order of 9
March 2017 was a valid order which served its purpose and was duly discharged.
As such it could neither serve as a notice as required by PIE nor as a basis for an
ex parte against the applicants. It consequently found the 2017 order invalid as
against the applicant. The same position prevails in casu according to the
occupiers of the property.
[38] The occupiers of the property ultimately contend that they have made a case for
the grant of the interdictory relief which is two -fold, a mandatory interdict and a
prohibitory interdict. In terms of the mandatory interdict sought, the occupiers of
the property seek restoration of the status quo ante before their unlawful evic tion
and/or demolition of their dwellings; and in terms of the prohibitory interdict, the
occupier’s of the property seek an order prohibiting the Municiplaity from evicting
occupier’s of the property seek an order prohibiting the Municiplaity from evicting
them from t he property and/or demolishing their structures without a lawful court
order. They contend that all there requirements for a final interdict have been met,
in that they have a clear right in terms of the Constitution and PIE; their rights have
been breache d and that there is no alternative remedy available to them at this
stage, following their eviction and/or demolition of their structures.
[39] The Municipality in the main places much reliance on the 2019 order to justify its
actions. It makes a b road allegation that it is abundantly clear from the reading of
the 2019 order that it applied and prevented any further land invasion of the
Remainder of Portion 1 of the Farm Town and Townlands of Rustenburg ; and that
it applied to the occupiers of the property in casu.
[40] The extensive reference by the Municipality to, inter alia , The Rustenburg Local
Municipality Land Use Scheme 2009 and 2020 and the Spatial Planning and Land
Use Management Act 16 of 2013 (‘Spluma’) in its answering affidavit and in its
submissions in the heads of argument, respectfully does not avail it. The relief
sought in the present application does not allude tangentially to any of these
issues and is restricted to the conduct of the Municipality in 2022, which the
Municipality in answer, seeks to justify with the 2019 order. Nothing more and
nothing less.
Discussion
[41] The occupiers of the property seek final relief by way of a mandamus. The
approach of a court in motion proceedings has been re -affirmed from time to time
by our apex courts. In National Director of Public Prosecutions v Zuma [2009]
ZASCA 1; 2009 (2) SA 277 (SCA) at para 26, the SCA said:
“Motion proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts. Unless the
circumstances are special they cannot be used to resolve factual issues because
they are not designed to determine probabilities. It is well established under
the Plascon-Evans rule that where in motion proceedings disputes of fact arise on
the affidavits, a final order can be granted only if the facts averred in the
applicant's … affidavits, which have been admitted by the respondent …, together
with the facts alleged by the latter, justify such order. It may be different if the
respondent’s version consists of bald or uncreditworthy denials, raises fictitious
respondent’s version consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the papers…”
[42] The structures erected on the property were demolished by the Municipality on 22
August 2022. The occupiers of the property maintain that the structures which they
called home we re occupied (resided in) at the time. The Municipality, however ,
contends that the structures were unoccupied. Photographic evidence adduced by
the occupiers of the property purport to portray structures that they maintain were
demolished, with signs of habitation.
[43] An analogous scenario manifested itself in Seale and Others v City of
Johannesburg Metropolitan Municipality and Another (2023/078684) [2023]
ZAGPPHC 754 (25 August 2023), where the defence of the municipality and the
retort by the applicants was similar to that in casu . The following was said at
paragraphs 6 and 7:
“[6] The Respondents state that they only use the interdict to demolish unoccupied
structures, prevent people from settling on the land, and not to evict people from
living on the land. In fact, they were dismantling false shelters – unoccupied but
only filled with a few household items on the day of the demolition, to create the
impression that they occupied the property. According to the supporting affidavit of
the service providers, on the day of the evictions, the team took pictures inside and
outside of the structures, certifying them unoccupied, to later demolish them. They
attached photographs of the empty structures they demolished, some half -built,
some finished.
[7] The Applicants deny this. Their case is that the community has occupied the
property since 2017, but mostly since 2022. They also submitted photographs of
the eviction. In these photographs are trucks filled with material and a water
cannon (the JMPD confirmed this during the inspection in loco) spraying water on
what looks like burning debris, amongst other things. There are a lso photographs
of household items like a plastic bathtub, cutlery, matrasses, blankets, pillows and
the like lying outside in the open.”
the like lying outside in the open.”
[44] On the dispute created in casu by the Municipality on the structures being
unoccupied; and the version of the oc cupiers of the property that the structures
were occupied, on the application of the Plascon Evans rule, the version of the
occupiers of the property must prevail.
[45] As to the 2019 order , the structures were demolished by the Municipality, relying
on the 2019 order. There are several patent problems with the reliance of the
Municipality on the 2019 order. The 2019 order specifically cited “ Unlawful
Invaders of Remaining Portion 1 of the Farm Town and Townlands of Rustenburg
272JQ”. On the version of the Municipality, the remaining portion covers several
pieces of municipal land in the Rustenburg and not only the land the occupiers of
the property claim to have occupied.
[46] There is no evidence with accompanying proof that any of the occupiers of the
property were part of the unlawful invaders as envisaged in the 2019 order; and
even if they were how service of the 2019 order reasonably would have come to
their attention. The Municipality very broadly alleges that the 2019 order included
all other members of the community (society).
[47] The tenet of the 2019 order is clear. It addressed conduct which was extant at that
time. The unlawful invaders (not occupiers) were int erdicted from taking
possession of the unoccupied structures or to reside in same . The South African
Police Service were ordered to assist the Sheriff to enforce the order, and if the
unlawful invaders failed to comply with same the Sheriff was authorised to
demolish all unlawful, unoccupied structures and demarcations at the property
situated at REMAINDER OF PORTION 1 OF THE FARM TOWN AND
TOWNLANDS OF RUSTENBURG 272JQ. It is hig hly improbable in my view, that
the 2019 order envisaged all the vacant land alleged to be encompassed under
the remaining portion.
[48] The Municipality adduced no evidence that the 2019 order was enforced at the
time it was granted. After all, why app ly for an order, secure same and then not
enforce it. After a hiatus of three (3) years, given the Covid pandemic and
enforce it. After a hiatus of three (3) years, given the Covid pandemic and
restrictions it brought about during that period, the Municipality on 22 August 2022,
nearly three (3) years later enforced the 2019 order, claiming the structures remain
unoccupied all that time. This is simply inexplicable.
[49] I agree with the dictum in Seale and Others v City of Johannesburg Metropolitan
Municipality and Another which applies equally to the present application. The
following was said regarding the 2017 interdict in favour of the municipality in that
matter:
“[45] Furthermore, an interdict sought to prevent harm from happening (such as
the invasion of land), is only for prevention of imminent harm. A 2017 interdict
could not have referred to harm so far in the future.
[46] Holding on to an interdict so long turns the interdict into a one -sided decree,
as the now unknown people intending to unlawfully occupy property are not
afforded to contest the granting of a final interdict in court and could not have
contested the granting of the final interdict at the time it was granted. They will also
not be identified during proceedings as there are no proceedings.
[47] The identities of those respondents, in fact, now change daily. The people
“intending to unlawfully invade the land” when the order was granted are not the
Applicants.
[48] The 2017 order is abused as a continuous justification for self -help by the
Respondent. Furthermore, when an interdict such as the one that the CoJ relies on
is used to evict the people from the land, this contravenes s 26(3), as it all ows for
an eviction before a court has considered any relevant circumstances. As stated
above, the Constitution requires more, and PIE, not an interdict, was designed to
ensure that the process also considers the occupiers’ circumstances.’
[50] The Municipality simply could not rely on the 2019 order to justify the evictions or
demolitions it claims, of 22 August 2022. It was imperative for the Municipality to
approach the Court with an application in terms of PIE. The sentiments expressed
at paras 27 to 3 5 of Seale and Others v City of Johannesburg Metropolitan
Municipality and Another resonate with this Court and are endorsed in the present
Municipality and Another resonate with this Court and are endorsed in the present
application. The remainder of the discussion and findings in that matter, with the
necessary changes to the relief s ought in the present application, is equally
applicable. I also align myself with the ratio in Residents of Mooidraai Farm,
Sasolburg v Metsimaholo Local Municipality and Others [2020] JOL 46526 (FB) ,
which accords with Seale and Others v City of Johannesburg Metropolitan
Municipality and Another.
Conclusion
[51] I am satisfied that the occupiers of the property have established a case for the
relief sought. An order of restoration by way of a mandatory interdict and a
prohibitory interdict stands to be granted.
Costs
[52] Costs follow the result. The occupiers of the property are accordingly entitled to
costs of the application, including the costs consequent upon the employment of
counsel.
Order
[53] The following order is accordingly made:
1. The conduct of the responde nt in evicting the applicants from their homes
and demolishing the dwellings and/or structures they erected on the vacant
land along G[...] Street in Karlien Park, forming part of The Remainder of
Portion 1 of the Farm Town and Townlands of Rustenburg 27 2 JQ (Erf
2447) (“the property”) without a valid or lawful court order is declared
unlawful, invalid and inconsistent with section 26(3) of the Constitution of
the Republic of South Africa, 1996; and the Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
2. It is further declared that the order of this Court issued on 10 October 2019,
does not apply to the applicants or any other person since the order
achieved the purpose for which it was issued at the time. The ord er does
not apply in perpetuity.
3. The respondents are directed to restore the applicants’ possession of the
property and to construct suitable dwellings for the applicants on the
property within thirty (30) days of the order of this Court alternatively t o
accommodate the applicants on other suitable property identified by the
respondent with due regard to the personal circumstances of the applicants.
4. The respondent is directed, if possible, to return all personal belongings of
the applicants in its pos session or the possession of its agents within thirty
(30) days of the order of this Court. If compliance with this order is not
possible in respect of the personal belongings of the applicants , the
applicants retain the right to institute a claim for dama ges against the
respondent, if so advised.
5. In the event of the possession of the property being restored to the
applicants, the respondent is interdicted and restrained from again evicting
and demolishing the applicants’ dwellings on the property withou t a valid or
lawful court order.
6. The respondent shall pay the costs of the application, which costs shall
include the costs of employing counsel.
__________________
A H PETERSEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicants : Adv R Richards
Instructed by : The South African Human Rights
Commission
c/o Legal Aid South Africa
Borekelong House
MEGA CITY COMPLEX
MMABATHO
EMAIL: alrief@legal-aid.co.za
Reference: NW2223/0061/SM
For the Respondent : Adv K Kgoroeadira
Instructed by : Setshedi, Makgale & Matlapeng Inc
20448 Andrew House
cnr James Moroka & DP Kgotleng
Streets
MAHIKENG
EMAIL:maftown@smnattorneys.co.za
Reference: MS MAREMANE/cm/ CIV0447