IJ Steenkamp N.O v LH Moeti (3894/2019) [2021] ZAFSHC 137 (29 April 2021)

N

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 3894/2019

In the matter between:

IZAK JACOB STEENKAMP N.O Applicant

and

LETSEGO

HUDSON MOETI 1st Respondent

ANY OTHER OCCUPIERS OF ERF 7205,

MANGAUNG,

FREE STATE PROVINCE 2nd Respondent

MANGAUNG

METROPOLITAN

MUNICIPALITY

3rd Respondent

MASTER

OF THE FREE STATE

HIGH

COURT

4th Respondent

JUDGEMENT: PARKS, AJ

HEARD ON: 15 APRIL 2021

DELIVERED ON: 29 APRIL 2021

[1] This is an application to declare the first and second respondents as unlawful occupiers in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 Act (PIE) of the property known as Erf No 7205, Mogoera Street, Mangaung, Free State Province.

[2] The relief sought is an order for the first and second respondents to vacate the property known as Erf No 7205, Mogoera Street, Mangaung, Free State Province.

[3] The application is opposed by the first respondent only, no opposition is filed by the remainder of the respondents.

[4] The applicant’s basis for this application stems from his appointment by the fourth respondent in terms of section 18(3) of the Administration of Estates Act 66 of 1965 as representative in order to finalize the estate of the late Eurashion Kagisho Ditsebe with identity number 370414 0182 084.

[5] The appointment letter refer to in above paragraph is dated 20th March 2019 and included in the indexed bundle. This document reflects that the applicant is duly authorised by the fourth respondent, to take control of the assets as reflected in the inventory filed with the Master of the High Court, to pay the debts, and to transfer the residue of the estate to the heirs entitled thereto by law. The assets identified on the letter of authority are Erf No 7205, Mogoera Street, Mangaung (hereinafter referred to as the property) to the value of R100 000.00 and furniture to the value of R5000.00

[6] The last will and testament of the deceased is also included in the indexed bundle. It is evident from the will, that the deceased had bequeathed the property namely 7205 Mogoera Street, Rocklands Location, Bloemfontein to wit Eric Itumeleng Moeti (Id no 581003 5934 089) and Lebogang Garth Moeti (Id no 600707 5887 082). However, clause 3 specified that the property should not form part of their’ estates including their children. Clause 4 further stipulates that the said property to remain the sole estate of the Moeti generation.

[7] It is averred by the applicant that both heirs, the sons of the deceased are also deceased on 20/04/2012 and 16/08/2018 respectively. Their death certificates marked “LHM2” & “LHM3” respectively forms part of the indexed bundle.

[8] The first respondent in his answering affidavit averred that the deceased was married to his paternal elder uncle, Cornelius Boajele Moeti, who predeceased the deceased. Upon the demise of the deceased, Lebogang, one of deceased’s sons, had occupied the house. The property had always been considered as the family home of the Moeti’s and the first respondent considers himself in terms of their customary law on the same footing as the deceased’s sons since their fathers are siblings. The applicant refers to his deceased uncle as his grandfather.

[9] It is further averred that subsequent to the passing of Lebogang, it was resolved at a meeting attended by the family elders, the first respondent’s father Jeremiah Moeti and his paternal aunt Martha Lebakeng, that the first respondent should occupy said property. The first respondent is the eldest son of his father and subsequently moved into said premises in October 2018. The first respondent agrees that he always knew that the property is not his but belongs to the Moeti family.

[10] In conclusion, the first respondent stated that Eric Moeti, the eldest son of the deceased, had his own property where he resided with his family. When Eric passed on, his funeral was held at the property currently involved in this dispute. The house, which the first respondent is occupying, had always been regarded as a main family home where their ancestral practices, customs and rituals are held.

[11] I am called upon to adjudicate, whether the applicant has locus standi to bring this application and whether the first respondent is an unlawful occupier of said property.

[12] Section 18(3) of the Administration of Estates Act 66 of 1965 reads as follows : “If the value of any estate does not exceed the amount determined by the Minister by notice in the Gazette, the Master may dispense with the appointment of an executor and give directions as to the manner in which any such estate shall be liquidated and distributed”.

[13] The Wills Act 7 of 1959 contains the law relating to the execution of a will.

[14] The preamble of PIE contains the purpose why PIE was promulgated, which is amongst others to regulate the eviction of unlawful occupiers from land in a fair manner.

[15] Section 1 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)”.

[16] On the date of hearing the application, neither the first respondent nor his attorney was before court. Section 4(2) of PIE places a duty on an applicant to serve a notice at least 14days prior to the date of the proceedings on the unlawful occupier and the municipality having jurisdiction. As a result, I enquired how the attorney/first respondent was notified about the set down date whereupon the applicant called a witness to clarify same.

[17] The witness who is an attorney Johannes Goosen testified under oath that he a practicing attorney and instructing attorney in this matter. The first respondent’s attorney Mr Kaloate is well known to him and was the arrangement that all court papers regarding this matter will be emailed to the first respondent’s attorney due to the location of said attorney’s practice. He would normally enquire when he sees Mr Kalaote in the court building whether documentation sent via email was received but had not seen Mr Kaloate prior to the date that the matter was enrolled. He can therefore not confirm whether same was received by Mr Kalaote.

[18] I have no doubt that the applicant has legal standing to institute proceedings. The applicant has, by virtue of the appointment in terms of section 18(3) of the Administration of Estates Act the locus standi to do so.

[19] I have considered in particular the clauses of the deceased’s will that the property will not form part of the heir’s estate and will remain the sole estate of the Moeti generation. This in simple terms means that the said property cannot be sold to finalise the deceased’ estate nor the heir’s estate and must remain in existence.

[20] I am therefore of the view that the applicant is asking this court to grant an order which is an eviction order with the aim to sell and finalise the deceased’ estate which is contrary to the deceased’s will. Neither the validity nor the execution of such will was ever questioned by the applicant.

[21] I am mindful of the final clause of the will that the property remains the sole estate of the Moeti generation with no individual identified to take control of said property. However, it appears from the papers filed that the father and aunt of the first respondent are Moeti’s and identified as the Moeti elders.

[22] In considering the customs and traditions of customary law are, there cannot be any doubt as to whom the elders are of the Moeti generation and more in particular the generation referred to by the deceased.

[23] The first respondent has been authorised by the people in control of the property who is his father Jeremiah Moeti and paternal aunt Martha Lebakeng to reside at said property. I am thus of the view that the first respondent has been rightfully authorised to reside on the property and does not fall within the definition of an unlawful occupier.

[24] I am in conclusion not satisfied that the applicant has succeed in proving that the first respondent is an unlawful occupier and I make the following order :

24.1 Application is dismissed with costs.

C.S.

PARKS AJ

For the applicant: Adv Benade

Instructed by: Steenkamp & Jansen Inc

BLOEMFONTEIN

For the 1st Respondent : No appearance