Diko and Another v Umzimvubu Municipality and Others, Umzimvubu Municipality v Certain Further Occupiers of the Immovable Property known as remainder of Erf 351 Mount frere Southern Side near Reservoir and Others, Mdani and another v Umzimvubu and Others (845/2002, 1239/2005, 367/2005, 1333/2006) [2009] ZAECMHC 20 (10 December 2009)

Diko and Another v Umzimvubu Municipality and Others, Umzimvubu Municipality v Certain Further Occupiers of the Immovable Property known as remainder of Erf 351 Mount frere Southern Side near Reservoir and Others, Mdani and another v Umzimvubu and Others (845/2002, 1239/2005, 367/2005, 1333/2006) [2009] ZAECMHC 20 (10 December 2009)

The court held that the municipality, as an organ of state, was required to bring eviction proceedings under section 6 of PIE, not section 4. Section 6 imposes a duty to consider justice and equity, including the circumstances of occupation, duration, and the availability of suitable alternative accommodation. The court below failed to apply the correct section and did not conduct the necessary enquiry, resulting in a misdirection. Consequently, the eviction orders in both 845 and 1239 were set aside and replaced with orders dismissing the applications. The punitive costs order de bonis propriis against the attorney was upheld, as the application was found to be frivolous and abusive, and...

Citation
[2009] ZAECMHC 20
Parties
Appellant: Mzoli Diko; Appellant: L.L.L Stofile; Respondent: Umzimvubu Municipality; Respondent: Regina Magusha Malimakwe Nompumza; Respondent: Minister of Land Affairs; Respondent: Minister of Housing; Respondent: Chief Land Claims Commissioner; Respondent: MEC for Local Government Housing and Traditional Affairs; Respondent: MEC for Agriculture and Land Administration; Respondent: Certain Further Occupiers of the Immovable Property known as remainder of Erf 351 Mount Frere Southern Side near Reservoir; Appellant: Zibonele Mdani; Applicant: Baphathe Fana Makaula
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
10 December 2009
Case Number
845/2002, 1239/2005, 367/2005, 1333/2006
Procedural Posture
Civil Appeal / Full Bench Appeal From High Court Judgments in Three Consolidated Matters
Outcome
Appeals in 845 and 1239 allowed; eviction orders set aside and applications dismissed. Appeal by attorney in 845 dismissed with costs. Appeal in 367 struck from roll with costs.
Judges
Chetty, Van Zyl, Schoeman
Legal Topics
Prevention of Illegal Eviction Act, Eviction Proceedings, Justice and Equity, Costs De Bonis Propriis, Public Interest, Rule 49 Appeal Lapse
Land and Property Civil Procedure Constitutional Law Prevention of Illegal Eviction Act Eviction Proceedings Justice and Equity Costs De Bonis Propriis Public Interest +1 more

Case Brief

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Parties

Mzoli Diko

Appellant

L.L.L Stofile

Appellant

Umzimvubu Municipality

Respondent

Regina Magusha Malimakwe Nompumza

Respondent

Minister of Land Affairs

Respondent

Minister of Housing

Respondent

Chief Land Claims Commissioner

Respondent

MEC for Local Government Housing and Traditional Affairs

Respondent

MEC for Agriculture and Land Administration

Respondent

Certain Further Occupiers of the Immovable Property known as remainder of Erf 351 Mount Frere Southern Side near Reservoir

Respondent

Zibonele Mdani

Appellant

Baphathe Fana Makaula

Applicant

Procedural Posture

Civil Appeal / Full Bench Appeal From High Court Judgments in Three Consolidated Matters

Legal Issues

  1. 1 Whether the eviction applications brought by the municipality should have been determined under section 6 of PIE rather than section 4.
  2. 2 Whether the requirements of justice and equity, as mandated by section 6 of PIE, were satisfied before granting eviction orders.
  3. 3 Whether the punitive costs order de bonis propriis against the attorney was justified.

Ratio Decidendi

The court held that the municipality, as an organ of state, was required to bring eviction proceedings under section 6 of PIE, not section 4. Section 6 imposes a duty to consider justice and equity, including the circumstances of occupation, duration, and the availability of suitable alternative accommodation. The court below failed to apply the correct section and did not conduct the necessary enquiry, resulting in a misdirection. Consequently, the eviction orders in both 845 and 1239 were set aside and replaced with orders dismissing the applications. The punitive costs order de bonis propriis against the attorney was upheld, as the application was found to be frivolous and abusive, and...

Court Disposition

Appeals in 845 and 1239 allowed; eviction orders set aside and applications dismissed. Appeal by attorney in 845 dismissed with costs. Appeal in 367 struck from roll with costs.

Orders

  • In appeal 845: The appeal by the first appellant is allowed, the order of the court below set aside and replaced with 'The application is dismissed.'
  • In appeal 845: The appeal by the second appellant, Mr. L.L.L Stofile, is dismissed with costs.