Loaca v Zwane [2021] ZALCC 8 (21 May 2021)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD

AT RANDBURG

CASE NUMBER: LCC 49/2021

In the matter between:

WILLIAM

VELILE LOACA

First Applicant

ANNA

LOACA Second Applicant

and

SIPHO

ZWANE

Respondent

(This judgment is handed down electronically by circulation to the parties' legal representatives by email. The date for hand-down is deemed to be 21 May 2021.)

JUDGMENT

MIA AJ

[1] This is an urgent application where the Applicant, Mr Loaca, a 75-year-old pensioner, who resides on Plot 57 Palesvalle, Randfontein, West Rand South, alleges he has been evicted from the property he occupied, and requests urgent relief as follows:

"1. That the application be heard as an urgent application in accordance with the provisions of Rule 34 and that the requirements pertaining to the time periods be dispensed with.

2. That the Respondent be ordered to restore the Applicants to the full possession, occupation and use of the accommodation that currently serves as their home situated at Plot 57, Palesvales, Randfontein, West Rand South, Gauteng that they enjoyed prior to 18 October 2020.

3. That the Respondent cease and refrain from threatening, harassing or intimidating the Applicants.

4. That the Respondent be ordered to pay R50 000.00 for constitutional damages that resulted from the unlawful eviction.

5. That the Respondent be ordered to uphold the Applicants rights in terms of the Extension of Security of Tenure Act No 62 of 1997.

6. Costs of this Application on an attorney and client scale; and

7. Further and/or alternative relief."

The application is opposed by Mr Sipho Zwane, the current owner of the property.

BACKGROUND

[2] The First Applicant is William Velile Loaca, an adult male pensioner. The Applicant resided in a cottage on the farm, Plot 57, Palesvalle, Randfontein, with 14 members of his family. The Second Applicant is Anna Loaca, an adult female street vendor, the wife of the First Applicant. The Respondent is Sipho Zwane, an adult male farmer. He is the owner of a farm, Plot 57, Palesvalle, Randfontein, with his place of residence at 7 Uitkyk Road, Hillshaven, Westonaria, 1799. The First Applicant is older than sixty (60) years of age, and is currently 75 years old. He no longer works and receives a pension from the State in the amount of R1 700.00 (one thousand seven hundred rand).

[3] The First Applicant resided in his home on the property for more than eighteen years. He moved to the property with his wife and five children in 2001. They previously resided at Plot 28, Palesvalle, Randfontein. He was offered employment on the farm, Plot 57, Palesvalle, Randfontein. When he obtained employment with Mr Monthe, the previous owner of the property, Mr Monthe gave the Fist Applicant the farmhouse, which comprised two outside rooms and a four-roomed brick house, to reside in. There were no condition/s attached to the First Applicant residing on the farm. The First Applicant did not pay any rent to Mr Monthe nor any monies for water and electricity. The First Applicant was employed as a general farm worker for ten years. He retired due to old age. Mr Monthe allowed the First Applicant to continue residing on the property for another eight years. The First Applicant continued to reside in the four-roomed house with his wife, five children and eight grandchildren. They utilised the other two outside rooms as bedrooms for the children.

[4] The First Applicant continued in undisturbed occupation after his retirement. His family continued to enjoy peaceful and undisturbed possession of the property until October 2020. In September 2020, they were informed by Mr Monthe that the Respondent purchased the property. The purchaser was aware of the Applicants and their occupation as Mr Monthe informed him about them, and that they would continue residing on the premises. In October 2020, the Respondent informed the First Applicant and his family verbally to vacate the home they occupied as he is the new owner of the property.

[5] On 18 October 2020, the Respondent arrived at the Applicants’ home at 10h00 accompanied by three men. He informed the Applicants and their family that they had until 14h00 to move out. If they failed to move out, he would throw their belongings out and lock the gate. He was very aggressive, and the First Applicant was terrified and felt threatened. They left out of fear and took a few items such as clothes, blankets and a sponge mattress. They left their remaining belongings behind, which included furniture and their livestock. The items left behind include:

5.1 Twenty (20) live chickens

5.2 Tools

5.2 Two (2) beds (double bed and single bed)

5.3 Two (2) wardrobe two doors

5.4 Three (3) piece cabinets

5.5 Table

5.6 Television and television-stand

5.7. Big radio and speakers

5.8 Four (4) blankets

5.9. Fridge

5.10 4 piece sofa set

5.11 further clothes belonging to the Applicants andtwo grandchildren

[6] In January 2021, three of the Applicants’ children went to buy chicken on the farm. They discovered that their property was stored in one room, and most of the items were damaged. The First Applicant attached pictures of the family's damaged property as an annexure marked "WLI" to the founding affidavit. The picture depicts the household items in the room. The items appear discarded and not well stored. The house that the Applicants occupied is now home to the chickens on the property. After being dispossessed on 18 October 2020, the Applicants first approached the ward counsellor, Mr Peter Dick, in November 2020 to report this his eviction and hoped he would obtain assistance. Mr Dick indicated he would follow up on the matter. He has not reverted with a response from his office to date.

[7] After that, the First Applicant approached the Randfontein Police Station to seek assistance, where the police officials informed the First Applicant that he had no right to be on the property as he and the family were not the owners. In late November 2020, he approached the Legal Resource Center (“LRC”) for assistance. He was informed that they were working from home. He left his contact details to enable someone to contact him. A male person named Nelson contacted the Applicants and consulted with them. He also arranged for the Applicants to go into the LRC offices. After days passed, they tried to contact him but the calls remained unanswered. The Applicants thought they reached another dead end.

[8] On 13 January 2021, the Second Applicant approached Lawyers for Human Rights (“LHR”) for legal assistance. She informed the attorneys of the events that had occurred to date and that they currently did not have a place to stay. The family is currently separated. The Second Applicant, along with the First Applicant, their children, and some grandchildren aged 10 and 7 respectively, sleep in a storeroom. The Second Applicant uses the storeroom to store her equipment as she is a street vendor. There are no ablution facilities or cooking facilities. The remainder of her children and grandchildren reside with her eldest son in a four-roomed house with only two bedrooms. It is occupied by her eldest son and his family and is now accommodating an extra ten persons of the Applicants' family. Her children and grandchildren are sleeping on the dining room and kitchen floor as there are no other available rooms. The house is overcrowded as over ten people are sharing a small space. Social distancing and compliance with Covid-19 sanitation processes is not possible and puts them at risk.

[9] The Applicants live in constant fear that they are imposing on their eldest son. They fear the day he decides that he needs his space back for his own family because this arrangement was only a temporary solution whilst they were pursuing relief. They realise the whole situation is very uncomfortable for him and his family. They have no alternative options for accommodation. They always had the consent of the previous owner, Mr Monthe, to reside in the farmhouse. The Applicants have been residing on the property in any event continuously and openly for more than nineteen years and are therefore long term[1] occupiers[2] in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”).

[10] The First Applicant contends that he has been residing peacefully on the property for nineteen years. The First Applicant stated that he had not committed any breach that would precipitate a termination of his right of residence in terms of section 10 (1)(a), (b) or (c) of ESTA. He and his family no longer have peaceful and undisturbed possession of the property due to the Respondent's actions. The First Applicant states that they would have been on the street and destitute following the eviction if it were not for the one storeroom that the Second Applicant had to store her equipment. It was also inconvenient for their eldest son to take in guests at short notice in a home that is not equipped and spacious enough to accommodate them without risk to their safety during the COVID pandemic. They have lost personal belongings that took over 18 years to acquire, which included livestock. The Applicants contend that the Respondent's conduct amounts to an unlawful deprivation of possession without their consent and due legal process.

[11] The issues to be determined are:

11.1 Have the Applicants made out a case for urgency?

11.2 Is there a material dispute of facts that cannot be resolved on the papers?

11.3 Have the Applicants made out a proper case for the relief sought?

[12] Section 8 of ESTA provides:

"8. Termination of right of residence.—

(1) Subject to the provisions of this section, an occupier's right of residence may be terminated on any lawful ground, provided that such termination is just and equitable, having regard to all relevant factors and in particular to—

(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person in charge relies;

(b) the conduct of the parties giving rise to the termination;

(c) the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier concerned, and any other occupier if the right of residence is or is not terminated;

(d) the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of its time; and

(e) the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence.

(2) The right of residence of an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act.

(3) Any dispute over whether an occupier's employment has terminated as contemplated in subsection (2), shall be dealt with in accordance with the provisions of the Labour Relations Act, and the termination shall take effect when any dispute over the termination has been determined in accordance with that Act.

(4) The right of residence of an occupier who has resided on the land in question or any other land belonging to the owner for 10 years and—

(a) has reached the age of 60 years; or

(b) is an employee or former employee of the owner or person in charge, and as a result of ill health, injury or disability is unable to supply labour to the owner or person in charge,

may not be terminated unless that occupier has committed a breach contemplated in section 10 (1) (a), (b) or (c): Provided that for the purposes of this subsection, the mere refusal or failure to provide labour shall not constitute such a breach.

(5) On the death of an occupier contemplated in subsection (4), the right of residence of an occupier who was his or her spouse or dependant may be terminated only on 12 calendar months' written notice to leave the land, unless such a spouse or dependant has committed a breach contemplated in section 10 (1).

(6) Any termination of the right of residence of an occupier to prevent the occupier from acquiring rights in terms of this section, shall be void.

(7) If an occupier's right to residence has been terminated in terms of this section, or the occupier is a person who has a right of residence in terms of subsection (5)—

(a) the occupier and the owner or person in charge may agree that the terms and conditions under which the occupier resided on the land prior to such termination shall apply to any period between the date of termination and the date of the eviction of the occupier; or

(b) the owner or person in charge may institute proceedings in a court for a determination of reasonable terms and conditions of further residence, having regard to the income of all the occupiers in the household.”

[13] Section 15 of ESTA provides:

"15. Urgent proceedings for eviction.—

(1) Notwithstanding any other provision of this Act, the owner or person in charge may make urgent application for the removal of any occupier from land pending the outcome of proceedings for a final order, and the court may grant an order for the removal of that occupier if it is satisfied that —

(a) there is a real and imminent danger of substantial injury or damage to any person or property if the occupier is not forthwith removed from the land;

(b) there is no other effective remedy available;

(c) the likely hardship to the owner or any other affected person if an order for removal is not granted, exceeds the likely hardship to the occupier against whom the order is sought, if an order for removal is granted; and

(d) adequate arrangements have been made for the re-instatement of any person evicted if the final order is not granted.

(2) The owner or person in charge shall beforehand give reasonable notice of any application in terms of this section to the municipality in whose area of jurisdiction the land in question is situated, and to the head of the relevant provincial office of the Department of Rural Development and Land Reform for his or her information.”

[14] Section 10(1) of ESTA provides:

"10. Order for eviction of person who was occupier on 4 February 1997.—

(1) An order for the eviction of a person who was an occupier on 4 February 1997 may be granted if—

(a) the occupier has breached section 6 (3) and the court is satisfied that the breach is material and that the occupier has not remedied such breach;

(b) the owner or person in charge has complied with the terms of any agreement pertaining to the occupier's right to reside on the land and has fulfilled his or her duties in terms of the law, while the occupier has breached a material and fair term of the agreement, although reasonably able to comply with such term, and has not remedied the breach despite being given one calendar month's notice in writing to do so;

(c) the occupier has committed such a fundamental breach of the relationship between him or her and the owner or person in charge, that it is not practically possible to remedy it, either at all or in a manner which could reasonably restore the relationship; or

(d) the occupier—

(i) is or was an employee whose right of residence arises solely from that employment; and

(ii) has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour Relations Act.”

URGENCY

[15] Mr Ratshili, appearing for the Applicants, submitted that the Applicants rely on ESTA and the mandament van spolie for the relief sought. Regarding the question of urgency, he submitted that the spoliation application is by its nature urgent. In the present matter, the First Applicant and his family occupy a one-roomed storeroom facility. They can be requested to vacate it at any time and would be homeless. Their accommodation at the home they resided in for eighteen years should be restored. To support this argument and the urgency, he highlighted that the First Applicant is seventy-five years old and the Second Applicant just turned fifty-nine years old. They have five children and eight grandchildren and resided at the property for eighteen years. The First Applicant worked on the property for ten years before retiring at the age of sixty-five. They continued to live on the property after that for another eight years with the consent of the previous landowner. The previous landowner sold the property to the Respondent. The Respondent was informed of the presence of the First Applicant and his family. He was also informed that the First Applicant would continue to reside on the property as he was an occupier in terms of ESTA.

[16] The First Applicant indicates that they were informed to leave the premises and when they did not comply, they were summarily informed to leave the premises on 18 October 2020. They were informed that the gates would be locked after their belongings were removed. They were fourteen occupants and took only the bare necessities such as clothes they required for the short term and sponges to use as beds. The First Applicant and his family reside in inhuman conditions with no reticulated services, ablution or cooking facilities. The remainder of the family resides with the eldest son who took in his family as a temporary solution. His home cannot accommodate the number of persons residing there and results in overcrowding and poses and health threats given the second wave of the COVID pandemic.

[17] Neither the ward counsellor consulted in November 2020 nor the police could assist the First Applicant and his family. The police were not familiar with the provisions of the ESTA. He then approached the LRC in January 2021 as all legal offices were closed in December 2020. The LRC attorneys were working from home, and nothing came of the instruction as no one contacted him. Mr Ratshili submitted that the Second Applicant then approached LHR. He highlighted that LHR functions on a limited budget. They assist many indigent clients on a pro bono basis. The first issue they encountered was that the First Applicant and his family were based in Randfontein, whilst the office of the LHR dealing with evictions was based in Pretoria. The First Applicant was unable to travel to Pretoria to consult with his attorney. The attorneys from LHR had to travel to Randfontein to consult with the Applicants in the middle of the pandemic. This on its own delayed the launching of the application. They only managed to finalise instructions in March 2021.

[18] Mr Ratshili maintained the issue was urgent as a spoliation matter, despite the passage of time from their dispossession in October 2020 until the matter was heard in April 2021. He relied on the case of Jivan v National Housing Commission 1977 (3) SA 890 (W), where the court at 892H-893C per Steyn J stated that:

"…in my view justify the conclusion which T. W. Price comes to in his The Possessory Remedies in Roman-Dutch Law at p. 61, where the author says in respect of the mandament van spolie

"it could be used in cases in which immovable property which had been possessed for less than a year and a day or in which the disturbance had been committed more than a year previously."

In my view the remedy of a mandament of spolie, based on the maxim spoliatus ante omnia restituendus est, grew as a new and distinct concept of the Roman-Dutch law in South Africa over the last century and a quarter, and there is no authority to state categorically that the order cannot be sought if the applicant had allowed a year to elapse after the interruption of his possession occurred, nor could it be concluded that relief could not be refused on account of delay to an applicant who had not delayed for a full year to launch his application for a mandament of spolie.

In my view the Court has a discretion to refuse an application where, on account of the delay in bringing it, no relief of any practical value can be granted at the time of the hearing of such application.

In exercising this discretion I think the bar imposed after one year in respect of the mandament consequential upon complaint is a guide to modern practice. If an applicant delayed for more than a year before bringing his application for a mandament of spolie, there would have to be special considerations present to allow such applicant to proceed with his application, and conversely, if an application was brought within the period of one year after interruption of the possession, special circumstances would have to be present before relief could be refused, merely on the ground of excessive delay."

[19] He submitted that based on the Jivan case above, the Applicants, having launched their application well within the twelve months, were not excessive in their delay. He continued, arguing that they did not sit back and accept the dispossession. They approached various sources they believed would afford relief, such as the ward councillor and the police, before they eventually received assistance from LHR. Thus he submitted a case of urgency existed as long as there was a possibility of the Applicants being rendered homeless. They were entitled to the relief sought based on the mandament van spolie as they were lawful occupiers in terms of ESTA having enjoyed peaceful, undisturbed possession for eighteen years previously. The Respondent had unlawfully demanded they left the premises in October 2020, and when they did not do so, he threatened them and forced them to leave the premises. They were thus unlawfully deprived of the use and enjoyment of the home they had occupied and enjoyed for eighteen years. They had also been forced to leave behind their belongings in the haste of their eviction.

[20] Mr Ratshili submitted that the Applicants’ case is based on ESTA and the madament van spolie. He referred to ESTA, which provides for long-term occupiers. He submitted that the First Applicant fell within this category, having resided on the farm for more than ten years.[3]

ESTA requires termination of residence of an occupier before an eviction could occur. He continued that in the present case an eviction is only possible if the First Applicant threatened harm to any person or damage to property, ifthere is no other adequate remedy available and if there was hardship to the owner or any other affected person would suffer. Even if the above circumstances were present, he continued, the eviction could only be granted in terms of a court order, and the Applicants could not be evicted summarily as had occurred.

[21] Furthermore, the Respondent's allegations of damage to the fence by the Applicants was denied. He argued that it was implausible that the First Applicant, who owned livestock, would cut the fence as this would place his livestock at risk. The allegation that the First Applicant killed the Respondent's livestock was also denied. He submitted that the Respondent introduced this fact to create a dispute of fact.

[22] Mr Ratshili submitted that the Respondent's version that the Applicants' voluntarily left is also denied. It is another point raised so as to create a material dispute. When comparing the Applicants' version with that of the Respondent, it is implausible that the Applicants would have left their home of eighteen years to live in a storeroom, a place where they could be rendered homeless at any time, with no ablution and other facilities. It was further inexplicable that they would leave behind the majority of their belongings, which they acquired over a long period of time. He referred to the case of Wightman t/a JW Construction v Headfour (Pty) and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at paragraph 12, which he submitted was applicable. He submitted that based on Wightman above, the Respondent's version should be rejected. The Court stated in Wightman:

"[12] Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must, in the event of conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E - 635C. See also the analysis by Davis J in Ripoll-Dausa v Middleton NO and Others [2005] ZAWCHC 6; 2005 (3) SA 141 (C) at 151A - 153C with which I respectfully agree. (I do not overlook that a reference to evidence in circumstances discussed in the authorities may be appropriate.)"

[23] Mr Ratshili submitted that the Applicants had aright to housing in terms of the Constitution of the Republic of South Africa, 1996. These rights were protected in terms of ESTA, and the Applicants were using the mandament van spolie to protect their right.

[24] Mr Bester disputed urgency and submitted that the matter is patently not urgent, in that Applicants failed to comply with the provisions of Rule 34(2) of the Rules of the above Honourable Court (the "Rules"), which provides as follows:

"The applicant must set out in his or her founding affidavit the circumstances which he or she avers render the matter urgent and the reasons why he or she cannot obtain substantial redress at a hearing in due course".

He continued that the Applicants had not set out any reasons in their founding affidavit that justify the application's bringing on such truncated timelines or show why the applicants cannot obtain substantial redress at a hearing in due course.

[25] He argued that on the Applicants' version, they have alternative accommodation. Furthermore, he submitted that in addition to the non-compliance with the rule, the Applicant has also failed to act with the necessary expedition. If there was any urgency, he argued it was self-created. He referred the court to the decision in Roelf and Others v Oosthuizen and Another [2017] ZALCC 12 at paragraph 6, where the Court stated at paragraph 6:

"Mr Mbobo submitted that this being essentially a spoliation application, the matter is inherently urgent. This may be so but it is still incumbent upon the applicants to satisfy the court that they acted with reasonable expedition after becoming aware of the incident which gave rise to the application: in the case the alleged termination of the their electricity supply on the property".

[26] He argued that the Applicants had not acted with reasonable expedition after their alleged dispossession. He continued that the Applicants made contact with their attorney in January 2021. The application was issued on 12 April 2021. There is no explanation for the current application being received in April 2021. There was a seven-month delay since spoliation and a four-month delay since they made contact with their attorneys. The Respondents were required to furnish an explanation within a truncated period of time in contrast to the applicants' absence of an explanation in their founding affidavit and the attempt at an explanation in their replying affidavit. He argued that the Applicants' are required to make out their case in the founding affidavit. The fact that the attorney is busy is simply not an acceptable submission and explanation. He argued that for a spoliation application to be viewed as urgent the Applicants must still make out a case. They are still required to set out grounds and must show they will not obtain substantial redress. The Applicants have not done this, and based on a lack of urgency, the application must fail for that reason alone. He submitted that they simply have not complied with Rule 34 of this Court's rules. Therefore the application should be struck from roll for lack of urgency with costs.

[27] On the merits, Mr Bester argued that the Respondent had explained his version of the alleged eviction. This is evident in paragraph 31 of the answering affidavit. He explained that the Applicants and specifically the First Applicant had great difficulty adjusting to the new ownership of the land. He did not accept the rules imposed by the new owner Mr Zwane, namely that he did not permit unannounced visitors on the landfor security reasons. The Respondent states that the First Applicant's intolerance of the new owner grew very strong. It caused him to act out by cutting some of the fences and allowing his grandchildren to cause harm (and sometimes death) to some of the goat lambs. Specifically, on the day of the alleged "eviction", the First Applicant had again refused to accept the Respondent's ownership of the land. After a discussion, the Respondent observed that the Applicants' took some of their possessions and simply left the land. They did not bother to vacate the spaces occupied by them properly. The Respondent denies threatening the Applicants or their extended family. He also states that this is improbable as there were no less than seven adults from the Applicants’ family present on the land, forming part of the First Applicant's extended family, which is far more compared to the Respondent's staff. The Respondent's version is by two confirmatory affidavits of employees. He has permitted the Applicants’ family members to come to collect their property when they have requested to do so. He tenders that they may come collect their property.

[28] Mr Bester argued that the Applicants’ made out their case for urgency in reply and did not put up a substantive defence in reply to the answering affidavit. The Applicants' response amounted to a denial in which they simply questioned why they would abandon the property. They state there were no eviction notices and then say they left because the situation was unbearable and it amounted to a constructive eviction. Mr Bester thus argued that this version reinforces the Respondent's version that the Applicants' left of their own accord because they did not like the new rules. They thus claim that it was a constructive eviction. He argued that if the conditions were made so unbearable that the Applicants and his family could no longer reside on the property, they fail to state exactly what the conditions were that made it unbearable to live on the farm.

[29] He submitted that it was unfair for the Applicants to say how their lives were made unbearable and simply not provide evidence to prove constructive eviction. The Respondent provided detailed facts about their conduct on the farm and how they challenged his authority and rules as the new owner. The Applicants do not respond in reply – they merely deny the action complained about. So on the Plascon Evans principle the Applicants' were only entitled to the interdictory relief if the Respondent's version was improbable. He referred to the case of Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA) at 17I-18B where the Court said:

"Media 24 chose not to pursue this case by way of trial. Nor did it ask for the matter to be referred to oral evidence. In asking for it to be decided on the affidavits alone, it therefore bound itself to the long-established approach described in Plascon-Evans. That meant that the case could not be determined simply on a weighing of the probabilities as they emerged from the affidavits. The facts deposed to by OUP's witnesses had to be accepted, unless they constituted bald or uncreditworthy denials or were palpably implausible, farfetched or so clearly untenable that they could safely be rejected on the papers. A finding to that effect occurs infrequently because courts are always alive to the potential for evidence and cross-examination to alter its view of the facts and the plausibility of evidence".

[30] The Rules of this Court provide that if the Court cannot decide the application on the papers because of the dispute of facts on the papers, then the application should be dismissed. In the present matter, there is a dispute of fact. The Applicants and the Respondent deny the other's versions as to whether the Applicant was evicted forcibly or not. Alternatively, whether the Applicants left the premises after a discussion and fallout with the Respondent. In addition, each of the parties has corroborated their respective versions by way of confirmatory affidavits. However it is nevertheless possible to consider the probabilities of the versions of each of the parties as to whether they are implausible, farfetched and clearly untenable.

[31] I have no difficulty with the urgency despite the passage of time. The Applicants fail to give a complete and proper explanation for the delay from the time he consulted with the attorney in January until the launching of the application in April 2021. I am mindful that the Applicants are not legally literate and having approached a ward councillor and the police, neither of whom directed them to the courts for assistance, they were compelled to seek assistance elsewhere. I am also mindful that the efforts to seek relief occurred amid the COVD pandemic during the second wave. Offices were not operating normally and it would have been a challenge, as is evident from the founding affidavit, to secure the service of pro bono legal representation. Mr Bester's submission was that the unavailability of his attorney is not a satisfactory explanation. For a seventy-five-year-old retired farmworker who has not engaged the legal system and who may not be legally literate, this is a valid reason as it impacts the Applicants' access to court in terms of section 34 of the Constitution and the Applicants’ right to equal protection and benefit of the law. He cannot exercise these rights without the assistance of a knowledgeable legal representative and able to advance his rights accordingly. He relied on his attorneys to come to him to take the necessary instructions as he could not travel to their offices. I will not penalise him for his lack of access to legal representation or for the lack of resources available to assist him.

[32] The papers are silent on the issue of constructive eviction, and this issue was only addressed in the argument. This was not canvassed in the replying affidavit where the Applicants ought to have taken the Court into their confidence and used the opportunity to elucidate on the instances of the alleged abuse they may have endured and harassment at the instance of the Respondent if such was what was relied upon to support a case for constructive eviction. This may be due to a lack of proper instructions or his legal representative's failure to appreciate what was required being a novice. I cannot ignore the lengthy period during which the Applicants enjoyed undisturbed occupation of the premises. If their rights of occupation were to be terminated, it should occur in the terms provided by ESTA in section 8 and if urgent eviction proceedings were warranted, ESTA provides for this in section 15.

[33] On the Respondent's version, he had expected vacant occupation of the property and was confronted with the long-term occupier who enjoyed the protection of ESTA. As the new owner, he was entitled to put in place rules to protect his property. His version is that the First Applicant had difficulty with his ownership and acted out. Even if this was so, it is not likely that the Applicants, who viewed the farmhouse as their home for eighteen years and enjoyed peaceful, undisturbed possession until then, would take minimal belongings and leave in haste merely because they did not like what the Respondent said to them or because he introduced new rules. The new rule was, in any event, not an onerous rule but had a reasonable purpose.

[34] The Respondent, who had expected vacant possession, appears to underplay his "discomfort" and "loss" because he did not receive vacant possession of the property. He took no legal steps to secure this right. He states that the Applicants cut his fence, causing potential stock losses. He did not approach the court for a harassment protection order, which he suggests the Applicants ought to have sought. In any event, he had remedies in terms of ESTA which afforded protection in the event that he intended to evict the Applicants which he did not use. He took no action in advising the Applicants in writing or taking legal action by sending a warning letter regarding the offending conduct, namely the cutting of the fence and the harm to his livestock and any other offensive conduct. Then he relies on an agreement of sale which purports to give him vacant possession of a property when he knew upon inspecting the property that there was a long-term occupier on the premises.

[35] Regarding the version, despite the Applicants not describing in detail the intimidation, I am satisfied that the only reasons they would leave the premises under circumstances where the First Applicant is a long-term occupier are due to threats and intimidation. Neither his ward councillor nor the police advised him to seek a harassment protection order, and thus he did not do so. His attorney, having considered their options and the relief they sought, considered an application to this Court as the most appropriate course to follow, given the relief requested.

[36] I move to the issue of constitutional damages. In light of the emotional and physical distress the First Applicant and his family experienced, Mr Ratshili requested that this Court award constitutional damages in line with the case of Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC). Mr Ratshili submitted that the Applicants live in an undignified manner. The family has been separated. He relied on the Fose case and requested that this Court fashion a remedy for constitutional damages. Mr Bester's submission was that the facts in the Fose case were substantially different and entailed the police torturing an individual. Mr Ratshili relied on two further decisions. In Ngomane & others v City of Johannesburg Metropolitan Municipality & another 2020 (1) SA 52 (SCA) , the court award a token amount to homeless persons where their belongings were confiscated and discarded by the City of Johannesburg. The breach was patent in the matter, having been captured on video by a good Samaritan. The litigants were not compensated in respect of the eviction. In the case of the MEC, Department of Welfare v Kate [2006] ZASCA 49; 2006 (4) SA 478 (SCA), the litigant was deprived of social security benefits for some time and was compensated for this.

[37] In the matters referred to above, the constitutional damages orders were made against the State. In the present matter, the Applicants complain about their property being damaged in storage. This can easily be recovered with a civil remedy and it is not necessary to fashion an award for constitutional damages. The Applicants complain about their threat of homelessness hanging over their head, however they did not expand on the treatment that was meted out to them other than to say they were threatened and were compelled to leave under duress. Under the circumstances it is not appropriate to fashion an award for constitutional damages on the facts as described.

[38] The practice of this Court is not to award costs except in exceptional circumstances. The country is in the midst of a COVID pandemic, and the Applicants find themselves homeless after enjoying undisturbed occupation for eighteen years previously. Eviction during the pandemic would only occur by order of the Court. In the present case, this was not the case, and when the Applicants brought this application to be restored it was opposed. In view of the relief I intend to give, the normal order of costs following the cause should follow.

ORDER

[39] For the reasons above, I grant the order as follows:

1. The Respondent is ordered to restore the Applicants' possession, occupation and use of the accommodation previously used by them situated at Plot 57, Palesvales, Randfontein, Gauteng;

2. The Respondent is interdicted from threatening, harassing and/or intimidating the Applicants and those holding occupation of the above premises under them.

3. The Respondent shall pay the costs of this application.

Mia AJ

Acting Judge :

Land Claims Court

APPEARANCES

For the Applicants: Adv F Ratshili

Instructed by Lawyers for Human Rights

Louise@communitylaw.co.za/Nothando@lhr.org.za

For the Respondents: Adv BC Bester

Instructed by Chantel Van Heerde Attorneys

jaques@cvhattorneys

[1] In accordance with section 10 of ESTA.

[2] “occupier” means a person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding— (a) . . . . . . (b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and (c) a person who has an income in excess of the prescribed amount;”.

[2] “occupier” means a person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding—

(a) . . . . . .

(b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family; and

(c) a person who has an income in excess of the prescribed amount;”.

[3] Section 8(4) of ESTA.