Emakhazeni Local Municipality v Ngubeni and Another (4716/2024) [2024] ZAMPMHC 64 (28 November 2024)

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

MPUMALANGA DIVISION, MIDDELBURG

CASE NO: 4716/2024

In the matter between:

EMAKHAZENI LOCAL MUNICIPALITY

APPLICANT

and

STEVEN NGUBENI

FIRST RESPONDENT

THE UNLAWFULL OCCUPIERS OF ERF 1[…]

EXTENSION 2, BELFAST

SECOND RESPONDENT

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 28 November 2024 at 10:00.

JUDGMENT

VELE AJ

[1] Emakhazeni Local Municipality (“the Applicant”), is before the court seeking an order to evict one Steven Piet Ngubeni (“First Respondent”), along with the unknown unlawful occupiers of Erf 1[…] Extension 2, Emakhazeni (“Second Respondent”) in terms of section 4(1) of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act[1] (“PIE”).

[2] The Applicant is seeking for an order in the following terms:

2.1 Cancellation of the Deed of Sale;

2.2 Eviction of the First and Second Respondents and any other person who occupies the property through or under him from the property known as Erf no. 1[…] Extension 2, Emakhazeni (“the property”);

2.3 Determination of a just and equitable date on which the First and Second Respondents and anybody who occupies the property mentioned above, through him may vacate the premises;

2.4 Determination of a date on which the eviction order in paragraph 2.3 may be executed in the event that the First and Second Respondents fail and/or neglect to vacate the property by the date determined by the court;

2.5 An order in terms of which the Sheriff may be authorised, if need be, to enlist the services of the South African Police Services to evict the First and Second Respondents in the event that they fail to vacate the property;

2.6 An order that the First and Second Respondents pay the Applicant rental, water, taxes and rates amounts due to the Applicant in the amount of R130 357 – 77 (one hundred thirty thousand, three hundred fifty-seven rand and seventy-seven cents);

2.7 An order that the First and Second Respondents pay the Applicant’s legal costs;

2.8 Further and/or alternative relief.

Background and Factual Position

[3] The First Respondent was employed as the Applicant’s Manager – Technical Services in June 2004. As part of the First Respondent’s benefits, the parties entered into a lease agreement in terms of which, the First Respondent was to occupy the property and pay the rental of R1 310.33 per month, which was deductible from his salary.

[4] The lease agreement would terminate upon the termination of the First Respondent’s employment contract. First Respondent would vacate and restore possession to the Applicant.

[5] The First Respondent took occupation upon commencement of his employment contract, which was terminated at the end of July 2008, when he resigned. On 30 June 2008, the parties entered into a sale agreement, whereby the First Respondent was to purchase the property. Part of the sale conditions was that the purchase price was payable to the seller on the date of registration or transfer into the purchaser’s name.

[6] The First Respondent breached this term, as he failed to pay the purchase price stipulated in the contract. Several reminders and demands to comply; were simply ignored despite the fact that the First Respondent and other people remained in occupation of the premises. The First Respondent is also in arrears with his rates and taxes account, which is accumulating by the day.

[7] The Applicant is the lawful owner, and the First Respondent along with a number of unspecified people have no right in law to remain in occupation, as the agreement was terminated, making them unlawful occupiers. The property is not the First Respondent’s primary residence, but is used as business premises generating income, without the consent of the Applicant. The Applicant alleged that the First Respondent is not residing on the premises, but other people, whose particulars are unknown, currently occupy the said premises.

[8] The First and Second Respondents opposed the application and raised the following grounds: (a) the Applicant did not comply with all the statutory requirements, as it failed to show that alternative accommodation is available, in the event of the court granting the order; (b) the First Respondent denies that he was in unlawful occupation of the property; and (c) there was a pending matter before the Belfast Magistrate Court.

Lis Alibi Pendens in Limine

[9] The Applicant pointed out that the point in limine of lis alibi pendens, that the action is pending before the Belfast Magistrates’ Court under case number 107/2017 was misplaced because the First Respondent was not taking the court into his confidence and he was selective in what he wanted to use in support of his affidavit. First, by conveniently omitting to attach the notice of withdrawal of the matter on 12 December 2017. The lis pendens point in limine, is correctly raised as following the parties’ negotiations, the First Respondent made a revised offer to purchase the property for R690 000 – 00 but failed to keep up with the payment terms. Mr Shabangu, the Applicant’s Municipal – Manager, was not being truthful when he denied in the replying affidavit that the matter was pending before another court; as annexure “NG 5” to the First Respondent’s opposing affidavit is an order granted on 29 September 2017, rescinding the judgment granted on 15 June 2017 and ordering that the parties proceed with the main action.

[10] There is no subsequent order to the contrary, be it for withdrawal or finalisation of the matter, leaving it pending before such a forum. See Nestle (South Africa) (Pty) Ltd v Mars INC,[2] wherein the Supreme Court of Appeal confirmed that for lis pendens to succeed, there must be another matter pending. Clearly the point in limine for lis alibi pendens, in this regard should succeed.

[11] Simple perusal of the application reveals that the Applicant was aware of the presence of persons other than the First Respondent and or his immediate family members, as it is alleged in the application that he is not using the property as his residence, but as a business premises. The Applicant does not state as to what steps were taken to ascertain the names of the persons in occupation so that each one is served with the eviction application, as set out in section 4(2) of PIE. In instances where the details of such persons are unknown, the courts have clearly set out the procedure to be followed when bringing the application to the attention of the unknown unlawful occupiers. The procedure is to approach the court for direction of service on such persons; past decisions recommended various methods, depending on the circumstances of each case. The Supreme Court of Appeal in Cape Killarney Property Investments (Pty) Ltd v Mahamba and others (“Cape Killarney”)[3] per Brand JA, held that:

“Section 4 does not indicate how the court’s directions 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”

[12] It was imperative on the Applicant in the current matter, since it is alleging that the unlawful occupiers’ details are unknown, to first approach the court and obtain an order for direction of service on such persons. It would be unfair for the Applicant to expect an order for eviction of the persons, who have been in occupation for a few years, not to be afforded an opportunity to present their cases for consideration by the court. In Cape Killarney, the Supreme Court of Appeal held that compliance with section 4(2) was peremptory and that all persons affected by the proceedings have to receive the notice of the application.[4]

[13] The common law remedy of evicting the tenant and all who occupy under or through him or her, is now limited to the tenant and his immediate family, and not extended to sub-tenants or other people occupying through him by the Bill of Right in Constitution of South Africa Act.[5] Section 26(3) of the Constitution, reads as follows:

“(3) 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. No legislation may permit arbitrary evictions.”

[14] The Applicant’s actions fall short of this constitutional requirement, as no such order is in place. Up to this point, we are not sure whether all the occupiers of the said property are aware of these proceedings, which put their security of tenure at risk. The Applicant did not give notice to all the occupiers of such property.

[15] The Applicant is erroneously relying on section 4, as being an organ of state, its application must be in terms of section 6(1) of PIE. It has a duty to advise as to whether there is alternative land, where these unlawful occupiers could be relocated to, as set out in section 26(3) of the Constitution. The Constitutional Court, in Port Elizabeth Municipality v Various Occupiers,[6] pointed out the shortfall in the approach in eviction cases at the instance of the organs of state, as there is a lack of ensuring a just and equitable result for all parties involved, holding the following:

“The Constitution and PIE require that in addition to considering the lawfulness of the occupation, the court must have regard to the interests and circumstances of the occupiers and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result.”

[16] The Applicant in this matter is an organ of state, which is tasked with ensuring that the state protects the right to adequate housing and protection from arbitrary eviction of Respondents from their homes, as enshrined in section 26 of the Constitution. Section 6(1) of PIE, reads as follows:

“(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.”

[17] The Applicant, being an organ of state, must satisfy the court that it has complied with section 6(3) which reads as follows:

“(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.”

[18] The First Respondent and a person purported to be the Second Respondent deny that they are unlawful occupiers, stating that the First Respondent occupies the property following the sale agreement he entered into with the Applicant that is still in force, and that the Second Respondent, his wife, and two friends were occupying with First Respondent’s consent. It would be unjust

to evict the respondents whilst the deed of sale is still in force.

[19] The First Respondent submitted that his non-compliance with the terms of the deed of sale was due to the Applicant’s uncooperative conduct, as it negotiated in bad faith.

[20] The court should take into consideration the provisions of section 4(7) of PIE before making any determination. Section 4(7) states the following:

“(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction, if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

[21] It is common cause between the parties that on 15 June 2017, the Applicant obtained an eviction order granted by the Belfast Magistrates’ Court. The court rescinded the order, following an application heard on 29 September 2017, allowing the parties to proceed with the main action. There is no subsequent order for judgment in favour of either party, or withdrawal of the application. Subsequent to the rescission, the parties entered into an agreement that allowed the First Respondent to acquire the property at the revised amount of R690 000 – 00 on 4 April 2022. Although there is consensus between the parties that the purchase price was re-negotiated, none of the parties produced a copy thereof. No payment has to date been effected in compliance with the said agreement.

[22] The First Respondent is relying on a verbal agreement of sale as he did not file a copy of the amendment of the sale agreement. Clause 7 of the Deed of sale reads as follows:

“ADDITIONS AMENDMENT TERMINATION OR NOVATION – No addition to or amendment agreed upon, termination or novation of this Deed of sale and no waiving of any right arising out of this deed of sale or non – compliance will be of any validity, unless it is in writing properly signed by both parties.”

[23] The First Respondent denies that he is in unlawful occupation, stating that there is a sale agreement between himself and the Applicant,

forming the basis for his occupation. This was challenged by the Applicant, who stated that the said agreement lapsed as the First

Respondent failed to pay the purchase price within the stipulated period, resulting in a breach of contract. This can be supported by the fact that the parties re-negotiated the purchase price, amending the terms of the initial agreement. The amendment was not reduced to writing, as required by clause 7 of the agreement, rendering it invalid. The provisions of section 2(1) of the Alienation of Land Act[7] reads as follows:

“No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.”

[24] There is no evidence before court that the addendum was reduced to writing to give effect to it. In Wendywood Development (Pty) Ltd v Rieger and Another,[8] Diemont AJA held the following:

“Sec.1 of the 1957 Act is designed to ensure that in such important transactions as the sales of landed property the possibility of dispute or disagreement should be reduced to a minimum. In order to achieve this the Legislature requires that the contract be in writing and that agents who sign the contracts for their principals be authorised in writing to sign.”

The parties’ conduct in the current matter simply ignored the above.

[25] What is before court is that the sale agreement entered into in 2008 lapsed due to non-compliance thereto by the First Respondent, as he failed to pay the purchase within the stipulated time or at all. This led to the Applicant successfully applying for the eviction order in the Belfast Magistrates’ Court under case no.107/2017. Although the judgment was rescinded on 29 September 2017; no further steps were taken to bring it to finality. However, the Applicant alleged that the judgment was withdrawn on 12 December 2017, even though no proof of such withdrawal is before court.

[26] The Applicant is alleging that the matter is withdrawn but attempts to sidestep the basic principle of our law, which states that he or she who alleges a point bears the onus to prove same. The Applicant was aware that the withdrawal of the matter before the Belfast Magistrates’ Court is in dispute, but it did not bother to furnish any supporting document. If the parties have an agreement, it was after the initial agreement was cancelled, and an order for eviction granted by the Belfast Magistrates’ Court. In Transnet Ltd t/a Metrorail and Others v Rail Commuters Action Group and Others,[9] the court reiterated the fact that, where there is a dispute of fact on the papers and the Applicant fails to make out a case for the relief sought, the court ought to dismiss the application.

[27] Our courts are in favour of granting eviction orders only in instances where the owner has fully complied with all the legal requirements

and taken into consideration the provisions of section 4(7) or 6(1) of PIE. In City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others,[10] the court stated the following:

“In terms of s 4(7) of PIE an eviction order may only be granted if it is just and equitable to do so, after the court has had regard to all the relevant circumstances, including the availability of land for the relocation of the occupiers and the rights and needs of the elderly, children, disabled persons and households headed by women. If the requirements of s 4 are satisfied and no valid defence to an eviction order has been raised the court ‘must’, in terms of s 4(8), grant an eviction order. When granting such an order the court must, in terms of s 4(8)(a) of PIE, determine a just and equitable date on which the unlawful occupier or occupiers must vacate the premises.”

[28] In Port Elizabeth Municipality v Various Occupiers,[11] the Constitution Court emphasised the importance of taking all the relevant factors, including the rights of the owner, into consideration when ordering eviction.

[29] In the current case, the Applicant, being an organ of state, should satisfy the court that it has complied with all the requirements, including the provision of alternative accommodation, to avoid rendering the unlawful occupiers homeless. The Applicant must inform the court as to what steps it has taken to ensure that, upon eviction, the Second Respondent and all other unlawful occupiers are able to access adequate housing as set out in section 26 of the Constitution. The Applicant’s papers are silent in as far as compliance with section 4(7) of PIE is concerned. It does not ventilate as to whether there are elderly people, children, persons with disabilities or special needs, or whether any of the families are headed by a woman. This is a crucial aspect to consider; if there are school-going children, as part of relevant circumstances, their interests will be taken into consideration when determining the eviction date, should the order be granted. It is not clear from the Applicant’s case, as to how many illegal occupiers were on the property and whether adequate notice was given. The purpose of giving notice is to bring to the attention of all the

affected parties the Applicant’s intention to evict so that they could consider their options.

[30] Mere perusal of the papers reveals that the sheriff served on different people at different times, who were accepting service on behalf of either the First or Second Respondents, though the latter was not cited by name in the application. The section 4(1) Notice was served on Mr Shelton Nechishanyi who accepted service on behalf of the First Respondent, and Mr Thomas Goodyear who accepted service on behalf of the Second Respondent, both confirmed to be co-occupiers of the premises.

[31] There is no return of service of set down on the First Respondent filed. The Applicant filed the return of service of set down on Second Respondent only, which was on Ms Sharon Hlatswayo, described therein as, a co-occupier of the premises. In Cape Killarney,[12] the Supreme Court of Appeal held that compliance with section 4(2) was peremptory, and all persons affected by the proceedings have to be served with the application. There is no service on Ms Hlatswayo and/or any of the other occupiers, as required by section 26(3) of the Constitution. This is a serious shortcoming with dire consequences to the Applicant’s case, as it will not meet the minimum requirements for the granting of the eviction order.

[32] It is clear that, in view of the above, the application cannot succeed.

Order

[33] Wherefore, the following order is made:

1. The application for eviction of the Respondents is dismissed.

2. The Applicant is to pay the First and Second Respondents’ Costs including counsel’s fees on a party and party scale B.

______________________

SO VELE

ACTING JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION, MIDDELBURG

APPEARANCES

On behalf of the Applicant: Ms Shabangu-Mndawe

Instructed by:

Nomaswazi Shabangu Attorneys

MBOMBELA

C/O NKGADIMA ATTORNEYS MIDDELBURG

On behalf of the First

and Second Respondents: Mr Zwane

Instructed by: Zwane

Sambo Attorneys, MBOMBELA

C/O Natasha Auret Attorneys,

MIDDELBURG

HEARD ON:

08 OCTOBER 2024

DELIVERED ON:

28 NOVEMBER 2024

[1] Act 19 of 1998.

[2] Nestle (South Africa) (Pty) Ltd v Mars INC 2001 (4) SA 542 (SCA); [2001] 4 All SA 315 (A).

[3] Cape Killarney Property Investments (Pty) Ltd v Mahamba and others 2001 SA (4) 1222 (SCA) para 15.

[4] Ibid para 11.

[5] Act 108 of 1996.

[6] Port Elizabeth Municipality v Various Occupiers 2005 (1) 217 (CC) para 36.

[7] Act 68 of 1981

[8] Wendywood Development (Pty) Ltd v Rieger and Another 1971 (3) SA 28 (A) at 38H-39A.

[9] Transnet Ltd t/a Metrorail and Others v Rail Commuters Action Group and Others 2003 (6) SA 349 (A) at 368C-H.

[10] City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others [2012] ZASCA 116; 2012 (6) SA 294 (SCA) para 11.

[11] Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC).

[12] Cape Killarney Property Investments (Pty) Ltd v Mahamba and others 2001 SA (4) 1222 (SCA) para 11.