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Maluti-a-Phofung Municipality v Moloi and Others (1914/2025) [2026] ZAFSHC 264 (29 April 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Case
no: 1914/2025
In
the matter between
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
APPLICANT
and
LETSITSA
SIKA LUCAS MOLOI
FIRST
RESPONDENT
DAVID
MPHATSISI MOLOI N.O.
SECOND
RESPONDENT
PATRICK
MOLOI N.O.
THIRD
RESPONDENT
LETSITSA
SIKA LUCAS MOLOI N.O.
FOURTH
RESPONDENT
ESIAH
THABO TSHABALALA N.O.
FIFTH
RESPONDENT
LEWA
JOSEPH MORAJANE N.O.
SIXTH
RESPONDENT
NAZARETH
BAPTIST CHURCH
SEVENTH
RESPONDENT
FERDIE
VAN ZYL
EIGHTH
RESPONDENT
HENNIE
AND BESSIE FOURIE
NINTH
RESPONDENT
THE
ILLEGAL PERSONS (OCCUPIERS)
OCCUPYING
THE IMMOVABLE PROPERTY
AT
FARM 131 DORPS GRONDEN
HARRISMITH,
FREE STATE PROVINCE,
ALSO
KNOWN AS PLATBERG NATURE RESERVE
TENTH
RESPONDENT
Neutral
citation:
Maluti-a-Phofung Municipality v Moloi and Others
(1914/2025)
[2026] ZAFSHC 264
(29 April 2026)
Coram:
MUVANGUA AJ
Heard:
29 January 2026
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 11h00 on 29 April 2026.
Summary:
Eviction – Prevention of Illegal Eviction
from and Unlawful Occupation of Land Act 19 of 1998 – section
4(2) –
section 7(2) – section 6(3).
ORDER
1
The first to the sixth respondents
are in unlawful occupation of the
Nature Reserve.
2
In order for the court to consider
whether an eviction order would be
just and equitable, the applicant is directed to: (a) consider
whether mediation under section
7(2) of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (PIE Act)
would be an appropriate avenue to pursue; and
(b) place all relevant information before the court, as required by
the PIE Act.
3
For purposes of order 2 above,
the applicant is granted leave to
supplement its papers as it sees meet.
4
The application is dismissed as
against the tenth respondent, for
want of compliance with s 4(2) of the PIE Act.
5
The applicant is ordered to pay
the costs of the first to sixth
respondents, as well as the seventh respondent’s costs.
6
The costs reserved by Van Rhyn
J on 31 July 2025 are similarly to be
paid by the applicant.
7
There is no order as to costs in
relation to the eighth and ninth
respondents.
JUDGMENT
Muvangua
AJ
Introduction
[1]
Before me served an application
for the eviction of the first to the sixth and the tenth respondents
from a property located at
Farm 131 (remaining extent of portion 0,
portion 88 and portion 105) Dorps Gronden Van Harrismith, Free State
Province, also known
as the Platberg Nature Reserve (Nature Reserve).
The Nature Reserve is approximately 4 000 hectares in extent.
[2]
The application was instituted in
terms of s 5 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19
of 1998 (PIE Act), alternatively, in terms
of s 4 of the PIE Act. The applicant filed a supplementary affidavit,
where it sought
to rely on the common law as a further alternative
basis to seek the respondents’ eviction, to the extent that the
PIE Act
finds no application.
[3]
The applicant, the
Maluti-a-Phofung Local Municipality, is the registered owner of the
Nature Reserve. The first respondent is the
King Letsitsa Sika Lucas
Moloi of the Bakholokoe Kingdom. The second to the sixth respondents
are the trustees of the Bakholokoe
Royal Trust Matawana) (trust). The
seventh respondent is the Nazareth Baptist Church Ebuhleni (NPC) with
principal place of business
in Ebuhleni, Inanda, KwaZulu-Natal.
[4]
The
applicant’s case is that all the respondents are in
unlawful
and illegal occupation
of the Nature Reserve, and that their occupation has had the effect
of entirely depriving the applicant of control over the property.
Costs were sought only in the event of opposition to the eviction
application.
[5]
The eighth to the tenth
respondent resides at the Nature Reserve. The eighth respondent,
Ferdie Van Zyl, is a businessman; the ninth
respondent trades as Nat
Snoetjies; and the tenth respondent is described as the remaining
unlawful occupiers occupying the Nature
Reserve.
[6]
The application was opposed by
the first to the sixth respondents, and settled with the seventh,
eighth and ninth respondents. The
tenth respondent did not enter an
appearance, one way or the other.
Background
The Nature Reserve
[7]
The Nature Reserve is a public
heritage site. Two areas of the Nature Reserve (graves and
remnants of a botanical garden)
can be described as heritage
resources, and are therefore protected in terms of the
National
Heritage Resources Act 25 of 1999
. The remainder of the Nature
Reserve falls within the ambit of the
National Environmental
Management Act 107 of 1998 (NEMA)
, with
particular reference to its definitions of ‘ecosystem’
and ‘environment’. NEMA is directed at the
protection and
sustainable management of the environment, including the regulation
and limitation of any unlawful or inappropriate
use of land falling
within its scope. In this context, the remaining portion of the
Nature Reserve constitutes a functioning ecosystem,
inhabited by
wildlife such as zebra, impala, blesbok and oribi, and accordingly
attracts the full protective reach of the statutory
framework.
[8]
In addition, two communication
towers are situated on the Nature Reserve. Their primary function is
to facilitate monitoring of
the petrol and diesel pipeline running
from KwaZulu-Natal to Gauteng. The towers are fitted with repeaters,
which serve as a critical
communications link between farmers and
local security clusters in emergency situations.
The first respondent
and the trustees
[9]
According to the applicant’s
founding papers, the first respondent and the trustees market the
first respondent as the owner
of the Nature Reserve, in that there is
signage on display depicting the first respondent’s dominion or
reign over the Nature
Reserve.
Together with the first
respondent, the trustees control access to the Nature Reserve and
charge entrance fees.
At the time of
instituting the eviction proceedings, the first respondent and the
trustees were in the process of constructing a
new steel entrance
gate with an occupied guard post. This structure would replace a
brick-and-mortar entrance that was destroyed
by fire.
[10]
In addition, t
he trust
enters into purported ‘lease agreements’ with third
parties, including agreements permitting the dumping of
waste such as
blood, contaminated meat and hair on the Nature Reserve. On 19 June
2023, the first respondent issued a notice requiring
all persons and
entities occupying the land to vacate it; the first respondent and
the trustees’ co-occupation and co-control
of the Nature
Reserve is without the applicant's consent.
[11]
The first respondent deposed to an answering affidavit,
on his own behalf, as well as on behalf of the trustees. He raised
the following
defences:
(a)
The applicant had not complied with
the mandatory procedural
requirements of
s 4(2) of the PIE Act, which requires the court
to serve written notice of intended eviction proceedings on the
respondents and
the relevant municipality at least 14 days before the
hearing.
(b)
The
applicant failed to comply
with s 7 of the PIE Act, which requires mediation or the appointment
of a dispute resolution facilitator
to attempt to settle the dispute.
They also allege the applicant failed to: (i) cancel or withdraw any
right or consent previously
given to the respondents in writing, or
give the respondents reasonable time to vacate before commencing
eviction proceedings;
(ii) commence proceedings in the
Magistrate's Court within whose area of jurisdiction the respondents
reside (rather than
self-selecting the hearing date in the High
Court); (iii) consider all relevant circumstances including the
rights of the elderly,
children, disabled persons and female-headed
households; (iv) consider whether it would be just and equitable to
grant an eviction
order without causing homelessness; and (v) give
the respondents timeous notice of the hearing (14 business days'
notice before
the court date).
(c)
The applicant failed to: (i) conduct the eviction process in a
humane manner; (ii) provide temporary alternative accommodation
where the evictees are unable to secure their own accommodation;
(iii) engage meaningfully with the evictees individually and
collectively before commencing the eviction process; and (iv) ensure
the eviction process does not discriminate against any
individual or
group.
(d)
The applicant's reliance on its title deeds is subject to
question, because in terms of the
Deeds Registries Act 47 of 1937
, a
title deed contains information about the history of the property
(including previous owners and rules and restrictions), and
that any
legal question arising from the title deed requires the original
title deed. In this regard, the first respondent’s
answering
affidavit asserts that the Bakholokoe Kingdom are the custodians of
the land given the history of the property. This
seems to imply a
customary or historical claim to the land, although this contention
was not developed in any detail in the affidavit.
I will return to the
first to the sixth respondents’ defences later.
The seventh respondent
[12]
The seventh respondent is a
church. Like the first to the sixth respondents, the seventh
respondent mounted several defences against
the application for its
eviction.
[13]
Its primary defence is that
it
is not an unlawful occupier within the meaning of the PIE Act,
because its occupation occurred with the express, alternatively
tacit, consent of the applicant. It relies on a sustained course of
conduct spanning more than a decade, during which the applicant
was
aware of, supported, and actively facilitated the seventh
respondent’s use of the land for large-scale religious
pilgrimages.
This includes granting annual approvals, providing
logistical support, engaging in tariff negotiations, and accepting
payment for
use of the land.
[14]
The seventh respondent further emphasises its
good-faith engagement with both traditional and municipal
authorities, its substantial
financial investment in the site, and
the ongoing lease negotiations. On this basis, it contends that the
applicant’s conduct
constitutes consent to occupation, thereby
excluding unlawfulness.
[15]
It’s second defence is that
the application is fatally defective due to non-compliance
with s 4(2) of the PIE Act, which requires that occupiers be given at
least 14 days’ written notice of eviction proceedings,
authorised and directed by the court. It asserts that no such notice
was issued or served on the seventh respondent. Given the peremptory
nature of this procedural safeguard, the seventh respondent
submits
that the failure to comply renders the application invalid and liable
to dismissal on this ground alone.
[16]
The seventh respondent also
contended that
insofar as the applicant proceeded under s 6 of
the PIE Act, as an organ of state, eviction would neither be in the
public interest
nor just and equitable. It emphasised the unique
religious significance of the land, the length and good faith of its
occupation,
and the absence of any viable alternative site. These
considerations, it argued, militate strongly against eviction,
particularly
given the constitutional imperative to respect religious
practices and the expectations generated by the applicant’s
longstanding
acquiescence.
[17]
Finally, the seventh respondent alleged that the
applicant had acted in bad faith by failing to disclose material
facts to the court.
These include its longstanding knowledge of the
seventh respondent’s occupation, its active involvement in
facilitating the
pilgrimages, the financial arrangements concluded
between the parties, and the ongoing negotiations regarding a formal
lease. According
to the seventh respondent, this non-disclosure was
deliberate and invited the court to draw adverse inferences,
submitting that
the application was accordingly tainted and should be
approached with caution.
[18]
Before me, the applicant confirmed that it sought no
relief against the seventh respondent at this stage. It appeared from
the submissions
of counsel for the seventh respondent that this might
have been the first occasion on which that position had been stated
in clear
and unequivocal terms.
The eighth and ninth
respondents
[19]
The eighth and ninth respondents filed no answering papers.
However, it was confirmed that the eighth respondent was no longer in
occupation of the Nature Reserve, and that the ninth respondent was
in the process of vacating voluntarily.
The tenth respondent
[20]
The tenth respondent is a catch-all citation of all other
unidentified persons occupying or conducting business on the Nature
Reserve.
According to the applicant’s founding papers, various
dwellings have been erected throughout the Nature Reserve; and the
respondents impermissibly keep cattle and domesticated animals on the
Nature Reserve, conduct hunting activities, harvest timber
for sale
on the open market, and manufacture and sell charcoal from harvested
trees. They also prevent the applicant’s officials
from
entering the Nature Reserve.
History of this matter
in this court
[21]
The eviction application was
initially launched as one of urgency, on 14 April 2025. It was set
down on the urgent court roll on
8 May 2025, and on 10 June 2025, my
sister Van Zyl J ordered that it be removed from the urgent roll and
be heard in the ordinary
course. The applicant was ordered to pay
costs.
[22]
At the hearing on 31 July 2025,
the first to sixth respondents asked for a postponement of the
hearing, in order for them to file
their answering affidavit. The
parties ultimately reached an agreement on the further filing of
papers and the re-enrolment of
the matter on the opposed court roll.
This agreement was made an order of court by my sister, Van Rhyn J.
She reserved costs.
Issues for
determination
[23]
The issues for determination are as follows:
(a)
whether the applicant complied with s 4(2) of the PIE Act;
(b)
whether there was compliance with s 7 of PIE Act;
(c)
what other PIE Procedural defences were raised?
(d)
whether the first to the sixth respondents’ occupation is
unlawful. Appended to that is whether the assertion that the
Bakholokoe
Kingdom are ‘
custodians of the land given the
history of the property
’ constitutes a legally cognisable
defence to the eviction, and whether it was pleaded with sufficient
particularity to be
entertained by this court;
(e)
whether it is just and equitable to grant the eviction, and on what
terms
;
and
(f)
costs.
These will be assessed in
turn below, after an exposition of the relevant legal framework, to
which I now turn.
Legal framework
Unlawful occupation
[24]
The PIE Act defines an unlawful occupier as:
‘
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
(
Act 31 of 1996
).’
[Underlining added].
[25]
Stated otherwise, an unlawful occupier is a person who
occupies land without the consent of the owner and who does not have
any
other right to do so. However, this definition excludes a person
whose occupation is protected under: (a) the
Extension of Security of
Tenure Act 62 of 1997
; or (b) the
Interim Protection of Informal Land
Rights Act 31 of 1996
. In terms of the PIE Act, a 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.’
Section 4(2) of the
PIE Act
[26]
Section 4(2) of the PIE Act reads as follows:
‘
At
least 14 days before the hearing of the proceedings contemplated in
subsection (1), the court must serve written and effective
notice of
the proceedings on the unlawful occupier and the municipality having
jurisdiction.’
Section
4(2) of PIE is, therefore, a mandatory procedural safeguard requiring
court-directed, written and effective notice to both
unlawful
occupiers and the municipality at least 14 days before the hearing.
[27]
In
Cape
Killarney
[1]
the Supreme Court of Appeal observed that the Legislature intended
for the s 4(2) notice to be authorised by a court. The provision
is
silent on how the ‘court’s directions regarding the
regarding the s 4(2) notice are to be obtained. A common-sense
approach to the section appears to dictate, however, that the
applicant can approach the court for such directions by way of an
ex
parte
application.’
[2]
[28]
An
eviction application under PIE requires both the usual service under
the rules and a further notice, authorised and directed
by the
court,
[3]
informing occupiers and the municipality of the hearing date, the
grounds for eviction, and the occupiers’ right to appear,
oppose and seek legal aid
.
This provision must be read together with s 4(5) of the PIE Act.
Section 4(5) prescribes what the notice must contain. It reads
as
follows:
‘
(5) The
notice of proceedings contemplated in subsection (2) must–
(a)
state that proceedings are being instituted
in terms of subsection (1) for an order for the eviction of the
unlawful occupier;
(b)
indicate on what date and at what time the
court will hear the proceedings;
(c)
set out the grounds for the proposed
eviction; and
(d)
state that the unlawful occupier is entitled to
appear before the court and defend the case and, where necessary, has
the right
to apply for legal aid
.’
(Underlining added.)
[29]
The
s 4(2) notice
is
not a technical formality and
must be read
purposively
and in the light of PIE’s broader just-and-equitable framework.
The requirement for a notice under s 4(2) exists
to ensure meaningful
participation, and to place relevant personal circumstances before
the court.
Once the notice has been given and the matter is heard, the court is
required to decide whether it is just and equitable to evict
the
unlawful occupier.
[4]
[30]
In
Unlawful
Occupiers, School Site v City of Johannesburg
[5]
(
Unlwaful
Occupiers
),
the Supreme Court of Appeal introduced qualification to the general
peremptory nature of s 4(2). It clarified that a
court
will not lightly strike down an eviction application for a procedural
deficiency in the s 4(2) notice, where the respondents
demonstrably
knew
what case they were required to meet and were not prejudiced by the
defect. In this regard, the Court noted that the applicable
underlying principle is that substantial compliance suffices.
[6]
[31]
Courts
have repeatedly set aside eviction orders where the section 4(2)
notice was not properly authorised, did not contain the
required
information, was served incorrectly, or did not reach occupiers
effectively. In
McNeil,
[7]
the Western Cape Division held that non-compliance with the
peremptory requirements of section 4 rendered the eviction order
legally
incompetent, void from the outset, and rescindable,
specifically because the notice did not state the hearing date and
time and
did not properly set out the grounds for eviction. In
Gcaba,
[8]
the Eastern Cape Division held that an eviction order granted without
proper invocation of the PIE Act was incompetent and had
to be set
aside, while reaffirming that section 4 requires effective,
court-directed notice containing the prescribed information.
Section 7 of the PIE
Act
[32]
The municipality asserts ownership to the property in
question. That renders section 7(2) most applicable. That provision
reads
as follows:
‘
7 Mediation
(1)
. . .
(2)
If the municipality in whose area of
jurisdiction the land in question is situated is the owner of the
land in question, the member
of the Executive Council designated by
the Premier of the province concerned, or his or her nominee, may, on
the conditions that
he or she may determine, appoint one or more
persons with expertise in dispute resolution to facilitate meetings
of interested
parties and to attempt to mediate and settle any
dispute in terms of this Act: Provided that the parties may at any
time, by agreement,
appoint another person to facilitate meetings or
mediate a dispute, on the conditions that the said member of the
Executive Council
may determine. . .’
[33]
Section
7(2) of the PIE Act is best understood as discretionary rather than
peremptory: the statute confers a power to appoint mediators
but does
not make mediation or appointment compulsory in every case. I must
caution that this is not a free-floating or optional-afterthought
power. In the context of s 7(1) of the PIE Act,
[9]
the court in
Sailing Queen Investments v
The Occupational LA Colleen Court
[10]
observed
that
the
municipality is required to apply its mind to whether mediation is
appropriate in the circumstances.
[11]
I see no reason why the same principle should not apply when s 7(2)
is implicated.
Section
7(2) is directed at precisely the same underlying statutory objective
as s 7(1), namely the resolution of disputes arising
under the PIE
Act through facilitated engagement before recourse is had to eviction
proceedings. The identity of the landowner,
whether a private party
or the municipality itself, does not alter that objective. If
anything, the obligation to consider mediation
is heightened where
the applicant is an organ of state, given the constitutional and
statutory duties that rest on organs of state
to act reasonably, to
engage meaningfully with affected parties, and to treat eviction as a
measure of last resort. It would be
incongruous if a municipality
were required to consider mediation when it is merely the local
authority with jurisdiction over
land owned by another, but were
relieved of that obligation entirely when it is itself the owner
seeking eviction. The discretion
conferred by s 7(2) must therefore
be exercised genuinely and with reference to the circumstances of the
case. Failure to apply
its mind to the question at all would
constitute an irregularity capable of affecting the validity of
subsequent eviction proceedings.
Analysis
Compliance with the
PIE Act
The section 4(2) issue
[34]
It was common cause at the
hearing of this application that the applicant had not complied with
s 4(2) of the PIE Act. However,
counsel for the municipality sought
to persuade me that there was compliance with section 5(2) of the PIE
Act when the matter was
initially brought as an urgent application. I
am not persuaded by this, for a number of reasons.
[35]
The first reason concerns timing.
Section 4(5)
(b)
requires the s 4(2) notice to ‘indicate on what date and at
what time the court will hear the proceedings’. The s 5(2)
notice, upon which the applicant sought to place reliance, was dated
2 May 2025, and the hearing date indicated was 8 May 2025.
Both of
those dates had come and gone by the time I heard this matter on the
ordinary motion court roll; it was heard some nine
months later, on
29 January 2026. The s 5(2) notice was therefore spent by the time
the matter came before me. It could not serve
as a valid s 4(2)
notice for proceedings heard on 29 January 2026, because it did not
(and could not) indicate the correct hearing
date as required by s
4(5)
(b)
.
The very information that the notice was designed to convey to the
occupiers, namely when and where the court would hear the
application, was not applicable by the time the matter was actually
determined. A notice that directs occupiers to a hearing date
that
has long passed gives them no meaningful opportunity to prepare for
and attend the actual hearing. It therefore fails the
most basic test
of what an effective notice is designed to achieve, irrespective of
whether it was technically valid when it was
issued.
[36]
The second reason is this: this court’s order
authorising the s 5(2) notice (granted by my sister Van Rhyn on 2 May
2025)
read as follows, in relevant part:
‘
Leave and
permission is to granted to the Applicants to serve the Eviction
Application on the First, Second, Third, Fourth, Fifth,
Sixth,
Seventh, Eighth, Ninth and Tenth Respondents . . . by Sheriff of this
Court or electronically, as provided for and envisaged
in the Notice
of Motion: Urgent Application, dated 14 April 2025’.
[37]
Prayer 5 of the said notice of motion dealt with service, and
it did not contemplate electronic service. It is unavoidable that I
must reproduce that prayer here:
‘
5.
That this order be served on the Respondents and published in the
following manner:
5.1 The Sherriff of this
Court and his/her Deputy must serve a copy of this Order on the
Respondents forthwith;
5.2 The Applicant is
directed to construct or to erect one prominent notice board at the
main entrance of the Platberg Nature Reserve
on which notice board
this order must be printed;
5.3 The Applicant is
directed to publish this order once in the Harrismith Chronicle
Newspaper and the Eastern Free State Issue
Newspaper;
5.4 The Applicant is
directed to transmit this Order on at least 5 timeslots on the
Qwa-Qwa Radio Station; and
5.5
The Applicant is directed to place a copy of this Order on all its
notice boards at its offices situated within its jurisdiction
.’
[38]
Counsel for the municipality was not able to explain to the
court (with reference to the papers) why the method of service
envisaged
in prayer 5 of the notice of motion was not utilised. That
aside for a moment, he submitted before me that service on the tenth
respondent was effected by serving on several individuals who were
found on the property. He was, however, not able to explain
why it
was appropriate or sufficient to effect service on the tenth
respondents by serving the eviction application on these individuals.
[39]
For these reasons, I conclude that there was non-compliance
with s 4(2) of the PIE Act. But that is not the end of the matter for
all the respondents.
In
Unlawful
Occupiers
, the Supreme Court of
Appeal held that:
‘
[24]
The question whether in a particular
case a deficient s 4(2) notice achieved its purpose, cannot be
considered in the abstract.
The answer must depend on what the
respondents already knew
. The
appellant's contention to the contrary cannot be sustained. It would
lead to results which are untenable. Take the example
of a s 4(2)
notice which failed to comply with s 4(5)(d) in that it did not
inform the respondents that they were entitled
to defend a case or of
their right to legal aid. What would be the position if all this were
clearly spelt out in the application
papers? Or if on the day of the
hearing the respondents appeared with their legal aid attorney? Could
it be suggested that in these
circumstances the s 4(2) should still
be regarded as fatally defective? I think not. In this case, both the
municipality's cause
of action and the facts upon which it relied
appeared from the founding papers. The appellants accepted that this
is so. If not,
it would constitute a separate defence. When the
respondents received the s 4(2) notice they therefore already knew
what case they
had to meet. In these circumstances it must, in my
view, be held that, despite its stated defects, the s 4(2) notice
served upon
the respondents had substantially complied with the
requirements of s 4(5).’ (Underlining added.)
[40]
The enquiry is therefore a contextual one, focused not on
technical compliance in isolation but on whether the respondents
were,
in all the circumstances, prejudiced by the deficiency in the
notice. Central to that enquiry is what the respondents already knew
when the proceedings were brought. It is to that question that I now
turn.
[41]
The first to the sixth respondents participated in these
proceedings. The founding affidavit indicated that all these
respondents
were represented by the same lawyers (whose particulars
were provided). This was never disputed. The applicant’s
replying
affidavit (to the answering affidavit deposed to by the
first respondent), alleged that the first respondent deposed to an
answering
affidavit on his own behalf and on behalf of the
‘Bakholokoe Royal Trust Motawana’. This was also not
placed in dispute.
It is therefore reasonable to accept that the
first to the sixth respondents took part in these proceedings.
[42]
On
the day of the hearing, Ms Nyezi appeared on instruction from the
first respondent, to seek a postponement of the matter. The
postponement was sought from the Bar.
[12]
On the eve of the hearing (28 January 2026 at 20:25), the registrar
of this court received an email from one King Letsitsa’s
email
address, stating that: (a) the first respondent would not be able to
attend the hearing on 29 January 2026, on account of
ill-health; and
(b) ‘Of great duress is the changing of lawyers in relation to
this matter; the new lawyers not yet being
prepared, and this is
contributing to increased ill health’.
[43]
On the authority of
Unlawful
Occupiers
recited above, I conclude
that although there was no compliance with s 4(2) of the PIE Act, the
first to the sixth respondents
were aware of the proceedings and took
part in them from their onset. Although no relief is sought against
them, the seventh to
the ninth respondents were also aware of the
proceedings. There was nothing before me to suggest otherwise. The
eighth respondent
had vacated the Nature Reserve by the hearing date,
and the ninth respondent was in the process of vacating voluntarily.
But the
position is different in relation to the tenth respondent.
For all the reasons I set out above, I am in no position to conclude
that the tenth respondent was given adequate and effective notice of
these proceedings, as contemplated by ss 4(2) and 4(5) of
the PIE
Act.
The section 7(2) issue
[44]
There was nothing placed before me to indicate that the
municipality applied its mind to provisions of s 7(2) of the PIE Act.
This
point was also not dealt with during oral argument.
The first to the sixth
respondents’ occupation
[45]
The first to the sixth respondents alleged in papers before me
that the Bakholokoe Kingdom is the custodian of the Nature Reserve,
on account of the history of the property. They relied on
documents which were alleged to have been issued by the ECO-6 and
Global Commonwealth of New Africa Interregional Court of Justice
(ECO-6 Court) as support for this contention.
[46]
It was not explained on the papers what the ECO-6 Court is,
and I was unable to find anything to suggest that it is a
constitutionally
recognised body, or a court of law, within the
framework of South Africa’s legal order. The first to the sixth
respondents
did not
have regard to any applicable
law in South Africa as authority.
[47]
I am
alive to the Constitutional Court’s decision in
Salem
Party Club and Others v Salem Community and Others
.
[13]
The
first to sixth respondents did not plead any facts that would bring
them within the ambit of
Salem
Party Club
.
They also did not place any evidence before the court to suggest that
they fall within any of the exclusions contained in the
definition of
an ‘unlawful occupier’.
[48]
The municipality demonstrated its ownership through title
deeds that it attached to the founding papers. The legitimacy of
these
documents was not disputed by any of the respondents (excluding
the tenth respondent).
[49]
I am, on the basis of these considerations,
constrained to find that the first to the sixth respondents’
occupation of the
Nature Reserve is unlawful.
The municipality
prayed for an order evicting them. The question that arises, and that
I must consider, is whether their eviction
would be just and
equitable.
Would the eviction be
just and equitable?
[50]
The starting point is the PIE Act. Section 6 deals with the
institution of eviction proceedings at the instance of an organ of
state.
It reads as follows:
‘
6
Eviction at instance of organ of state
(1)
An organ of state may institute
proceedings for the eviction of an unlawful occupier from land which
falls within its area of jurisdiction,
except where the unlawful
occupier is a mortgagor and the land in question is sold in a sale of
execution pursuant to a mortgage,
and the court may grant such an
order if it is just and equitable to do so, after considering all the
relevant circumstances, and
if-
(a)
the consent of that organ of state
is required for the erection of a building or structure on that land
or for the occupation of
the land, and the unlawful occupier is
occupying a building or structure on that land without such consent
having been obtained;
or
(b)
it is in the public interest to
grant such an order.
(2)
For the purposes of this section,
'public interest' includes the interest of the health and safety of
those occupying the land and
the public in general.
(3)
In deciding whether it is just and
equitable to grant an order for eviction, the court must have regard
to
-
(a)
the circumstances under which the
unlawful occupier occupied the land and erected the building or
structure
;
(b)
the period the unlawful occupier
and his or her family have resided on the land in question
;
and
(c)
the availability to the unlawful
occupier of suitable alternative accommodation or land
.
(4)
An organ of state contemplated in
subsection (1) may, before instituting such proceedings, give not
less than 14 days' written notice
to the owner or person in charge of
the land to institute proceedings for the eviction of the unlawful
occupier.
(5)
If an organ of state gives the owner or
person in charge of land notice in terms of subsection (4) to
institute proceedings for
eviction, and the owner or person in charge
fails to do so within the period stipulated in the notice, the court
may, at the request
of the organ of state, order the owner or person
in charge of the land to pay the costs of the proceedings
contemplated in subsection
(1).
(6)
The procedures set out in section 4
apply, with the necessary changes, to any proceedings in terms of
subsection (1).’ (Underlining
added.)
[51]
Section 6(3) is instructive. In order for this court to decide
whether or not an eviction order is just and equitable, it must know:
(a)
the circumstances under which the unlawful
occupier occupied the Nature Reserves and erected structures; (b) the
period the unlawful
occupiers and their families have resided on the
Nature Reserve; and (c) the availability to the unlawful occupier of
suitable
alternative accommodation or land.
[52]
None of these factors were placed before me. The court was not
told how many people occupy the Nature Reserve, whether there were
persons with disabilities, women headed household etc. In the
founding affidavit, the municipality pleaded that:
‘
The First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth
Respondents either reside in the Nature Reserve,
or occupy the Nature
Reserve and conducting business from the Nature Reserve. . . . the
Nature Reserve has been hijacked by the
Respondents and the
Respondents regard it as their property’.
[53]
That is insufficient. It must be borne in mind that the
applicant is a municipality. During oral argument, counsel for the
municipality
argued that the municipality has an obligation to
protect the Nature Reserve, and that it was under no obligation to
place before
this court factors about the respondents’
circumstances. He argued further that the respondents ought to have
appointed lawyers
to place the relevant factors before the court.
Those submissions were most unfortunate.
[54]
The
law is, by now, settled, when it comes to the municipality’s
obligations in eviction proceedings under the PIE Act.
Where
a municipality is itself the applicant in eviction proceedings, it
must do far more than prove unlawful occupation: it must
show that
eviction is both just and equitable and in the public interest. It is
also required to engage meaningfully with the occupiers;
investigate
and disclose
their personal circumstances and vulnerability and risk of
homelessness; place meaningful information before the court on
emergency
or alternative accommodation; align its conduct with the
Housing Act 107 of 1997
and Housing Policy; and consider the
suitability and location of any offered accommodation, especially in
relation to employment
and social ties.
[14]
[55]
The municipality failed to discharge any of these obligations.
It placed no information before the court about the personal
circumstances
of the first to sixth respondents, the composition of
the households on the Nature Reserve, the presence (if any) of
vulnerable
persons, or the availability of alternative accommodation.
It did not engage meaningfully with the occupiers prior to launching
the application, nor did it address the risk of homelessness that
eviction might occasion. Counsel's submission that these obligations
rested on the respondents rather than the municipality betrayed a
fundamental misunderstanding of the law. The municipality, as
the
eviction applicant and an organ of state, bore the obligation to
place the relevant information before the court — it
could not
discharge that obligation by pointing to the respondents' failure to
appoint legal representatives. The result is that
this court is left
without the information required by
s 6(3)
to consider before it can
determine whether eviction is just and equitable. In those
circumstances, the municipality has not made
out the case required by
s 6 of the PIE Act, and the application falls to be dismissed on this
ground, in as far as it relates
to the first to the sixth
respondents.
The tenth respondents
[56]
I have concluded above that there was no compliance with s
4(2) of the PIE Act, and there was no evidence placed before court to
suggest that the tenth respondent, a group of people who were not
individually identified, were aware of these eviction proceedings.
In
the circumstances, I am constrained to dismiss the application as
against them, without more.
Costs
[57]
The ordinary rule is that costs follow the result. The
applicant applied for an order evicting the first to the sixth
respondents,
as well as the tenth respondents from the Nature
Reserve. I am unable to grant that order, because the applicant (as
the municipality)
did not place before me the relevant factors that I
am required to take into account before granting an eviction order.
The applicant
simply took the view that it was not required to do so.
This is not consistent with the established legal principles.
[58]
It is so that the matter became settled as against the seventh
respondent, but before me, counsel for the seventh respondent
indicated
that it was never clear (prior to the hearing of the
matter) what the applicant’s position was in relation to the
seventh
respondent. To that extent, counsel asked that costs be
ordered against the applicant.
Conclusion
[59]
The municipality's application flounders on multiple grounds.
First, it is common cause that the s 4(2) notice was not served on
the first to sixth respondents in compliance with the PIE Act.
Although the first to sixth respondents’ active participation
in the proceedings ameliorates the prejudice that would otherwise
have resulted from that non-compliance, the municipality’s
attempt to rely on the spent s 5(2) notice as a substitute for a
proper s 4(2) notice cannot be sustained as against the tenth
respondent.
[60]
Second, there is nothing before me to indicate that the
municipality applied its mind to whether mediation was appropriate in
the
circumstances, as required by s 7(2) of the PIE Act. On the
contrary, it appears that the municipality proceeded directly to
litigation
without any consideration of that avenue.
[61]
Third, and most fundamentally, the municipality has failed to
place before this court the information that s 6(3) requires it to
consider before an eviction order may be granted. The personal
circumstances of the occupiers, the composition of their households,
the presence of vulnerable persons, and the availability of suitable
alternative accommodation were not disclosed. Without that
information, this court is unable to determine whether eviction would
be just and equitable. The municipality's failure in this
regard is
not a technical shortcoming, it goes to the heart of what the PIE Act
requires of an organ of state that seeks to evict
people from land.
Order
[62]
In the result, I make the following order
1
The first to the sixth respondents are in unlawful occupation
of the
Nature Reserve.
2
In order for the court to consider whether an eviction
order would be
just and equitable, the applicant is directed to: (a) consider
whether mediation under s 7(2) of the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998 (PIE Act)
would be an appropriate avenue to pursue;
and (b) place all relevant information before the court, as required
by the PIE Act.
3
For purposes of order 2 above, the applicant is granted
leave to
supplement its papers as it sees meet.
4
The application is dismissed as against the tenth respondent,
for
want of compliance with s 4(2) of the PIE Act.
5
The applicant is ordered to pay the costs of the first
to sixth
respondents, as well as the seventh respondent’s costs.
6
The costs reserved by Van Rhyn J on 31 July 2025 are similarly
to be
paid by the applicant.
7
There is no order as to costs in relation to the eighth
and ninth
respondents.
N MUVANGUA
ACTING JUDGE OF THE
HIGH COURT
Appearances
For
the Appellant:
Adv.
F.W Botes SC
Instructed
by:
Hendre
Conradie Attorneys
119
President Reitz Avenue
Westdene
Bloemfontein
[email protected]
(Ref:
HAT1/1281 JHC/AB)
For
the First Respondent:
Adv.
M Sello SC
Adv.
T Ngubeni
Instructed
by:
King
Letsitsa Sika Lucas Moloi
533
Mabanga Street
Intabazwe
Harrismith
[email protected]
For
the Second, Third, Fourth,
Bakholokoe
Royal Trust Motawana
Fifth
and Sixth Respondents
533
Mabanga Street
Intabazwe
Harrismith
[email protected]
For
the First to sixth Respondents
Ngcobo
& Sigwili Attorneys
221
Hoosen Haffejee Street
Pietermaritzburg
[email protected]
For
the Seventh Respondent
Nazareth
Baptist Church
Ebuhleni
Home
c/o
Mr NW Ncube
[email protected]
LN
Chambers (Pty) Ltd
21
Aurora Drive
Umhlamga
Kwazulu-Natal
[email protected]
(Ref:
LNBVV-Maluti1086/23
For
the Eighth Respondent
Mr
Ferdie Van Zyl
House
No 1
Botanical
Gardens
Platberg
Nature Reserve
For
the Ninth Respondent
Hennie
and Bessie Fourie
t/a
Nat Snoetjies
House
No. 2
Botanical
Gardens
Platberg
Nature
Reserve
[1]
Cape
Killarney Property Inv (Pty) Ltd v Mahamba
2001
(4) SA 1222
(SCA)
.
[2]
Ibid para 15.
[3]
Ibid paras 19 and 20. See also
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) (
Unlawful
Occupiers
).
[4]
Residents
of Joe Slovo Community, WC v Thubelisha Homes (Centre on Housing
Rights & Evictions, Amici Curiae)
[2009]
ZACC 16; 2010 (3) SA 454 (CC). See also
First
Rand Bank Ltd v Ndamase and Another
[2024]
ZAGPPHC 1133 (12 November 2024) para 16.
[5]
Unlawful
Occupiers
fn
3.
[6]
Ibid para 24.
[7]
McNeil
and Another v Aspeling and Others
[2018]
ZAWCHC 185
(28 June 2018).
[8]
Nontombi
Gcaba
& others v Ntabankulu Local Municipality & others
[2021]
ZAECMHC 17 (30 May 2021)
.
[9]
Section 7(1) reads as follows: ‘
If
the municipality in whose area of jurisdiction the land in question
is situated is not the owner of the land the municipality
may, on
the conditions that it may determine, appoint one or more persons
with expertise in dispute resolution to facilitate
meetings of
interested parties and to attempt to mediate and settle any dispute
in terms of this Act: Provided that the parties
may at any time, by
agreement, appoint another person to facilitate meetings or mediate
a dispute, on the conditions that the
municipality may determine’.
[10]
Sailing Queen Investments v
The Occupational LA Colleen Court
[2008]
ZAGPHC 15; 2008 (6) BCLR 666 (W).
[11]
Ibid
para 14.
[12]
The application was not entertained at all, as it was not properly
made.
[13]
Salem
Party Club and Others v Salem Community and Others
(CCT26/17)
[2017] ZACC 46; 2018 (3) BCLR 342 (CC); 2018 (3) SA 1 (CC).
[14]
Port
Elizabeth Municipality v Various
2004
(12) BCLR 1268
(CC);
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and Others
[2008] ZACC 1
;
2008
(3) SA 208
(CC);
Abahlali
Basemjondolo Movement SA v Premier of the Province of KwaZulu
-Natal
[
2009]
ZACC 31
;
2010 (2) BCLR 99
(CC)
;
Mogale
City Local Municipality v Black Tad Investments CC
[2018] ZASCA 74
(31 May 2018);
City
of Ekurhuleni Metropolitan Municipality v Khewsa and others
[
2024]
ZAGPJHC 1935 (8 October 2024)
.