Frannero Property Investments 202 v Selapa and Others (FBCIVAPP03/2019) [2020] ZANWHC 4 (14 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO. FB CIV APP 03 /2019

In the matter between:

FRANNERO PROPERTY INVESTMENTS 202 Appellant

and

CLEMENT PHUTI SELAPA

First Respondent

DIMAKATSO SEMELA

Second Respondent

KHENSANI MABUNDA

Third Respondent

GEORGE NGOVENI

Fourth

Respondent

FREDDY RAPAO

Fifth Respondent

SYLIVIA MABUNDA

Sixth

Respondent

UNLAWFUL OCCUPIERS OF PORTION

35 OF THE FARM WATERVAL 306,

REGISTRATION DIVISION JQ, NORTH

WEST PROVINCE

Seventh Respondent

RUSTENBURG LOCAL MUNICIPALITY Eighth

Respondent

FULL BENCH CIVIL APPEAL

HENDRICKS DJP, NONYANE AJ & NOBANDA AJ

JUDGMENT

NOBANDA AJ.

Introduction.

[1] The Appellant brought an application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), seeking the eviction of the 1st to 7th respondents (the respondents) from Portion 35 of the farm Waterval 306, Registration Division JQ, North West Province (the property).The respondents raised a point in limine contending that the court a quo did not have jurisdiction to entertain the application as they are occupiers in terms of the Extension of Security of Tenure Act 62 of 1997(ESTA).

[2] The court a quo upheld the respondents’ point in limine and dismissed the application. With leave of that court, the Appellant is appealing that decision on the grounds that the court a quo incorrectly casted the onus on the Appellant in finding that the Appellant failed to prove that the respondents do not fall under

the provisions of ESTA. Furthermore, that ESTA is not applicable. None of the respondents opposed the appeal.

Factual Background.

[3] The property was initially owned by RPM mines to pump water into RPM mines. During 1983, RPM sold the property to one Felix Formariz (Formariz). At the time of purchasing the property, there was a single rondawel on the property which RPM utilized to accommodate its employees who attended and maintained the water pumping activities on the property.

[4] Formariz constructed a dwelling house and took occupation in 1992. Due to the depletion of the rondawel, Formariz demolished it in 1996 and built four rooms. During 1996 to 2000, Formariz erected several more buildings on the property, to house mine workers working in the area which he rented out. The buildings consisted of small rooms with a general ablution area. Throughout the period 2000 to 2014, several tenants entered into oral rental agreements with Formariz. Formariz employed a person named Mr Bucks to deal with and administer the rental of the rooms from 2001 to 2010, whereafter Mr Bucks left Formariz’s employment.

[5] During 2011, Formariz appointed one Francisco de Matos (de Matos) to administer the leasing of the rooms and collect rental on his behalf. The leases were similarly of an oral nature. At that time, the rental property consisted of five blocks referred to as A, B, C, D and O. Only block B was electrified and as a result a higher rental was payable for the rooms in that block.

[6] During 2012, Formariz applied in terms of Section 96 read with Section 69 of the Town Planning and Ordinance 15 of 1986 (T) (Ordinance 15 of 1986) for the establishment of an industrial township known as "Waterval East 60" to be developed on the property. In September 2012, the application was approved and the property was rezoned accordingly. By 2012, almost 50% of the leases were terminated by de Matos due to non-payment of rentals. General meetings were held by de Matos with the occupants to discuss the issue of outstanding rental and the rezoning of the property. Formariz obtained an eviction order against the tenants whose lease agreements had been terminated.

[7] On 29 October 2012, Formariz entered into a sale agreement of the property with Frannero Property Investments 202 CC (Frannero CC). The sale was later cancelled in February 2015. Frannero CC was later converted to Frannero Property Investments 202 (Proprietory) Limited (the Appellant). Formariz then concluded a sale agreement of the property with the Appellant. The property was transferred to the Appellant on 7 August 2015.

[8] After the purchase of the property by Frannero CC, the director of the Appellant, Mr Grobler, held a meeting with the tenants to discuss inter alia, the sale of the property and the adherence to the lease agreement terms concluded with Formariz by the tenants. The leasing of the rooms continued. During 2014, the Appellant applied for the amendment of the industrial erven from 22 to 34 erven. The amendment was approved in August 2014. In November 2014, the Appellant gave notice to all tenants cancelling their lease agreements, hence the eviction application.

On Appeal

[9] The Appellant's grounds of appeal are limited to the point in limine raised by the respondents. The main contention by the Appellant is that the onus was on the respondents to prove that they were occupiers in terms of ESTA and the respondents failed to discharge that onus. As such, the court a quo was wrong in finding that the Appellant failed to show that the respondents were not occupiers in terms of ESTA, thereby casting the onus on the Appellant.

[10] During the hearing, the Appellant persisted with its contention that the respondents were unlawful occupiers in terms of PIE. Accordingly that ESTA is not applicable. As such, the Appellant contended that in terms of PIE, it only had to show that it is the owner of the property and that the respondents were occupying the property without its consent and are accordingly in unlawful occupation. The Appellant submitted that it had complied with the requirements of PIE and is accordingly entitled to the order sought, evicting the respondents from the property.

[11] Prior to dealing with the issue of the onus raised by the Appellant, it is prudent to give a brief background of the two legislations that are in contention.

ESTA

[12] The broad scheme of ESTA provides for measures, with State assistance, to facilitate long-term security of land tenure and regulate inter alia, the conditions of residents on certain land and the conditions on and circumstances under which the right of persons to reside on land may be terminated and under what conditions or circumstances they may be evicted[1].

[13] In terms of section 2, the Act applies to all land other than land within or encircled by townships.[2] In Karabo (supra), the court added that the Act is not restricted to land used for agricultural purposes only.[3] Section 2(1) (b) provides that the Act also applies to persons who were occupiers immediately prior to an establishment,

approval, proclamation or recognition of a township on that land after 4 February 1997.

[14] In terms of Section 3(4), a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proven. Similarly, Section 3(5) provides that, a person who has continuously and openly resided on land for a period of three years, shall be deemed to have done so with the knowledge of the owner or person in charge. These subsections are however not applicable to land owned by the State.

[15] The occupier’s right of residence may be terminated in terms of section 8, on any lawful grounds. Section 9 provides for procedures and requirements which the owner or person in charge has to comply with to obtain an eviction order in terms of the Act. Karabo (supra), sets out the requirements as follows:

(a) The right of residence of the person sought to be evicted must have been terminated;[4]

(b) the occupier must not have vacated the land within a period of notice given by the owner or person in charge;[5]

(c) the applicant must comply with either section 10 or section 11;[6]

(d) two months written notice of eviction must be given to the occupier, the municipality in whose area the land is situated and the Head of the Provincial Office of the Department of Land Affairs. The notice has to set out the grounds for eviction.[7]

[16] In terms of section 17 (1), the proceedings may be instituted in the Magistrates Court or the Land Claims Court. As such, the High Court has no jurisdiction to adjudicate the proceedings unless consented to by the parties.[8]

PIE

[17] PIE provides for the prohibition of unlawful eviction and procedures to be followed for the eviction of unlawful occupiers. In terms of PIE, an unlawful occupier is a person who occupies land without the express or tacit consent of the owner or person in charge or without any right in law to occupy such land. The definition excludes an occupier in terms of ESTA. Section 4 provides for the procedures to be followed for the eviction of such occupiers. The procedure differs materially from that of ESTA.

Applicable legislative framework

[18] On the Appellant’s own version, the tenants had been occupying the property, at the least, from the year 2000 with the approval of Formariz and thereafter the Appellant from 2012 to 2014. There is a dispute whether the respondents are the same tenants who occupied the property then. In my view however, the dispute is irrelevant.

[19] What is relevant is that the former owner, Formariz erected buildings on the property which at the time was not within or encircled in an established township. The buildings were erected for purposes of leasing them to mineworkers and according to the respondents, also to various other people. The property was rezoned for the establishment of a township in 2012. Thereafter, in 2014, the Appellant applied for the rezoning to be extended from 22 to 34 erven. The extension was granted in the same year.

[20] As such, the issue in dispute of who remained in occupation after the year 2000 is irrelevant. On the Appellant’s own version, the respondents occupied the property by consent prior to the extension of the rezoning in 2014. As such, the property is land as contemplated in ESTA and the respondents occupiers as contemplated in Section 2(1)(b) of ESTA. Accordingly, the court a quo was correct in upholding the respondents’ point in limine that ESTA and not PIE is applicable.

Onus

[21] It is trite that the question of onus is not a procedural but a substantive law issue.[9] The respondents raised a defence that they were occupiers in terms of ESTA. Accordingly, that they cannot be evicted in terms of PIE. As a result, the respondents contended that the court a quo did not have jurisdiction to adjudicate the matter.

[22] The respondents had the onus to prove on a balance of probabilities that they were occupiers in terms of ESTA.[10] It was not for the Appellant to prove that the respondents were not occupiers in terms of ESTA. Accordingly, to the extent that the court a quo implied that the onus rested on the Appellant to prove that the respondents were not occupiers in terms of ESTA, the court a quo erred. The Appellant only had the burden of rebutting the respondents’ averments.[11]

[23] As indicated above, on the Appellant’s version, confirmed in material respects by the respondents’ version, the occupiers of the property occupied the property with the consent of the former owner and later the Appellant, at the least, until 2014. In addition, the respondents contend that they comply with the ESTA requirements in that:

23.1 they have been living on the property either before or after 4 February 1997 with the express or tacit permission of Formariz or person in charge;

23.2 the majority of the respondents are unemployed and do not have an income in excess of R5000 per month;

23.3 the land where they reside was not situated in an established township;

23.4 the respondents use the land for residential purposes;

23.5 the respondents have been living on the land throughout and openly for at least five years.

[24] During argument, Counsel for the Appellant further contended that the respondents who failed to file affidavits were not entitled to the presumption in terms of section 3(4) of ESTA.[12]

[25] The deponent to the respondents’ answering affidavit had indicated that there are more than 300 people occupying the property while the Appellant estimates the number to be not more than 300. As a result, the respondents indicated that only a handful of confirmatory affidavits will be attached in order to avoid overburdening the court papers and the remainder of the confirmatory affidavits will be made available in court should the court require them. As such, the respondents in casu are distinguishable from the respondents in Odvest case (supra). In Odvest, no explanation was provided as to the reason why other respondents failed to file their confirmatory affidavits. The explanation provided in casu is not unreasonable. The Appellant admits that at the least, 300 people are occupying the property. Therefore, in my view, further confirmatory affidavits would have indeed overburdened the court papers.

[26] In the light of the above, I find that the respondents have discharged the onus that ESTA is the applicable law in their circumstances. Accordingly, I find that the court a quo was correct to uphold the respondents’ point in limine.

Costs

[27] The court a quo granted leave to appeal with costs in the appeal. The respondents did not oppose the appeal. However, the respondents had opposed the leave to appeal. Since the respondents have succeeded in the appeal notwithstanding the non-opposition of the appeal, the respondents are entitled to their cost in the leave to appeal.

Order

[28] In the circumstances, the following order is made:

(i) The appeal is dismissed,

(ii) The Appellant pay the respondents’ costs in the leave to appeal.

P.L. NOBANDA

ACTING JUDGE OF THE HIGH COURT

I agree

R.D. HENDRICKS

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

B.R. NONYANE

APPEARANCES

Counsel for the Appellant : ADV. JHF PISTOR

Counsel for the Respondents: NO APPEARANCE

Date Judgment Reserved : 06 December 2019

Date Judgment handed down: 14 February 2020

ATTORNEYS

For the Applicant

- Naude Steyn INC

C/o Van Rooyen Tlhapi Wessels Inc.

9 Proctor Avenue

Mahikeng

2745

Tel: 018 381 0804-7

Ref: TJN2/0021/AA

For 1st to 8th respondents - Martins Weir-Smith Inc.

C/o Maree & Maree Attorneys

11 Agaat Avenue

Riviera Park

MAHIKENG

Tel: 018 381 7495 / 7497

Ref: GJ Maree/Yusriyah/AA7329

[1] LAWSA 14 (1) 99

[2] Lategan v Koopman en Andere 1998 (3) SA 457 (LCC); Karabo and Others v De Kok 1998 (4) SA 1014 (LCC)

[3] At [12]

[4] S8(1)

[5] S9(2)(b)

[6] S9(2)( c)

[7] S9(2)(d)

[8] S17(2); Odvest 182 Pty (Ltd) v Occupiers of Portion 26 (Portion of Portion 3) of Farm Klein Bottelary No. 17, Botfontein Road (‘The Property’) and Others (19695/2012) [2016] ZAWCHC 133 (14 October 2016)

[9] Woelman and Schutte NNO v Masondo and Others 2002 (1) SA 811 (SCA)

[10] Odvest (supra)

[11] Ibid

[12] Ibid