Masilonyana Local Municipality v Kokoane and Others (4140/2020) [2021] ZAFSHC 153 (10 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 4140/2020

In the matter between:

MASILONYANA LOCAL MUNICIPALITY Applicant

And

LESHETLO KOKOANE AND OTHERS Respondents

HEARD ON: 13 MAY 2021

JUDGMENT BY: DANISO, J

DELIVERED ON: 10 JUNE 2021

[1] On 28 October 2020 the applicant launched an urgent application in terms of section 5 (1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act[1] (“The PIE Act”)[2] for the eviction of the respondents from the applicant’s land described as farm number 720, Brandfort Townlands in Brandfort (“the land”) and the demolition of structures or dwellings erected by the respondents on the said land.

[2] A rule nisi was granted by Mbhele J with a return date of 10 December 2020 on the following terms:

2.1. The Respondents are interdicted and restrained from erecting any further homes and/or adobes (sic) and /or dwellings and/or other structures on Remaining Extent of the farm no. 720 Brandfort Townlands, Brandfort Regional Division, Free State Province (“the land”);

2.2. The Respondents are interdicted and restrained from taking occupation and/or occupying and/or inhabiting any home and/or dwelling and/or adobe (sic) and/or other structure which might be erected on the land;

2.3. The Respondents are prohibited from conducting any activity whatsoever on the land which is aimed either directly and/or indirectly at establishing a home and/or dwelling and/or adobe (sic) or other structure on the land;

2.4. The Respondents are interdicted from trespassing on the land or committing any offence in terms of Section 1 of the Trespass Act 6 of 1959 in respect of land;

2.5. The Respondents are to pay the costs of this application, only if unreasonably opposed;

2.6. That the orders contained in paragraph 4.1. to 4.4. above shall operate as an interim interdict with immediate effect pending final adjudication of the application for the relief in Part B[3] of the Notice of Motion.

[3] On 28 October 2020, the respondents were served with the notice in terms of section 5(2) of the PIE Act as directed by the court. The applicant has therefore complied with the procedural and substantial requirements contemplated in section 5 of the PIE Act. and is accordingly entitled to an eviction order, if it is just and equitable to do so, after considering all the relevant circumstances, and if it is in the public interest to grant such an order.

[4] Pursuant to the rule nisi, the respondents filed a notice to oppose the application. On 10 December 2020 the rule nisi was extended to 28 January 2021, 15 April 2021 and finally to 13 May 2021 for arguments on the opposed roll.

[5] It is not in dispute that during September or October 2020 the respondents occupied the land without the applicant’s permission. In their opposition of the application the respondents seek the discharge of the rule nisi on the basis that it is incompetent as it refers to an invasion of the land whereas the respondents had already been in occupation of the land. The respondents were also not aware of the application as it was not served on them.

[6] The respondent’s objections are meritless. The order constitutes an “eviction” order whether it refers to a prevention instead of removal of the unlawful occupiers. The word “eviction” does not only refer to removal of illegal occupier, it is wide enough to include prevention of illegal occupation.[4] Furthermore, page 48 of the applicant’s founding is a copy of the Sheriff’s return of service which confirms that the notice of motion and the supporting affidavit was served on all the respondents on 28 October 2020.

[7] As regards the merits, the respondents aver that they relocated themselves to the said land in order to escape the inhumane living conditions they had to endure due to the applicant’s failure to provide to develop and provide basic services such as water and electricity at the informal settlement they previously occupied, Slovo Park situated near Brandfort. Slovo Park has been in existence for more than fifteen years however the applicant has done nothing to develop the area. Water is collected from Jojo tanks. The hospitals and schools are quiet far away. This settlement has become so overcrowded that it poses a health risk to the respondents, over three hundred of them as they cannot practice proper hygiene and social distancing to curb the spread of the Covid-19 pandemic. So far, three meetings have been held with the applicant to discuss the respondents’ request to occupy the land. The applicant has instead turned a deaf ear to the respondents’ plight as a result they have found themselves without an alternative but to relocate themselves to the land.

[8] The respondents assert that the land is not entirely vacant, there are some community members who have been allocated sites on this land and they have been residing in this land and they have named it Tsharagang. The respondents have applied for site allocations. They were provided with reference numbers as proof of their applications but since then no sites have been made available to them. The land is vast enough to allow them to practice safe hygiene and social distancing to protect themselves from the covid-19 pandemic. The land is also nearer to essential amenities such as schools and health facilities.

[9] It is the respondents’ case that it would not be just and equitable that the respondents are evicted from this land as some of the respondents are disabled and have minor children. If they were to be evicted from the land they will be forced to return to the inhumane living conditions that they sought to escape, the court should rather order that the applicant relocates the respondents to “Section D”.

[10] The applicant states that a meeting was held between the respondents and the applicant’s representatives where they were informed that the land being invaded would not offer advantages to the respondents, they will be worse off as it has not and will not be serviced as it has not been approved by the Department of Cooperative Governance, Human Settlements and Traditional Affairs (“COGTA”). The applicant will not be allocated a budget to develop the land. The respondents were informed that the applicant is developing the area behind Slovo Park (“Section D”) and that they should apply to be allocated of sites. Only persons who qualify in terms of the applicant’s housing development and allocation programme will be allocated sites. The respondents would have none of that, they insisted on invading this particular land which is further away from essential amenities such as hospitals and schools and also biohazardous.

[11] The applicant states that Slovo Park was invaded in the similar manner causing the applicant to scramble around for funds to provide the residents with Jojo tanks for water. If the respondents are allowed to also invade this land that would derail the development of Section D which is at an advance stage as the applicant would have to utilize the budget allocated for Section D for the development of this land.

[12] The applicant’s allegations that the respondents were informed that in order to be allocated sites they must apply but they have not done so have not been gainsaid. The respondents’ purported proof of application for site allocation, Annexure “TM5” merely shows that only one of about three hundred respondents has applied and inexplicably, she only applied on 23 November 2020 few days before these proceedings were launched.

[13] The reasons proffered by the respondents to occupy this particular land are irrational. On their own version they left they previously occupied due to lack of basic services and infrastructure to occupy a land which is undeveloped and environmentally hazardous.

[14] It is for these reasons that I’m not persuaded that the respondents have raised a valid defence for the unlawful occupation. I’m satisfied that the applicant has made out a case for the eviction of the respondents.

[15] Section 6 of the PIE Act provides that termination of an unlawful occupier’s occupation should be just and equitable having regard, inter alia, the provisions of section 6 (3) which provides thus:

“…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.”

[16] On the facts germane to this matter there is alternative land where the respondents can be accommodated. The respondents have been in occupation of the land for over six months as at the date of the hearing of this application. They will in all probability need time to get their affairs in order and relocate.

[17] The impact of Covid-19 pandemic is another factor to be considered. The peak in infections saw the country sliding down to Alert Level 2 from 30 May 2021. In terms of Regulation 54 (2)[5] the eviction or demolition order may be suspended until after the lapse or termination of the national state of disaster unless it would not be just or equitable to do so. None of the parties have alluded to or presented arguments in that regard. I will therefore make no order in that regard.

[18] With regard to costs, the general approach is not to award costs in cases involving constitutional rights, for that reason I do not intend saddling the respondents with a cost order.

[19] In the premises, the following order is granted

1. The rule nisi granted by Mbhele J on 28 October 2020 is confirmed.

2. Each party shall bear its own costs.

Dated at BLOEMFONTEIN on this the 10th day of JUNE 2021

NS DANISO, J

APPEARANCES:

Counsel on behalf of Applicant: Adv. L.A Roux

Instructed by: Peyper Attorneys

BLOEMFONTEIN

Counsel on behalf of Respondent: Adv. R. Ozoemena

Instructed by: UFS Law Clinic

[1] Act No. 19 of 1998.

[2] PART A.

[3]to show cause on 10 December 2020 why they should not be evicted from the farm and also be ordered to demolish and remove any structures erected on the farm by 12pm on 14 December 2020 and to pay the costs of the application in the event they oppose.

[4] See Motswagae and Others v Rustenburg Municipality Another 2013 (2) SA 613 CC and section 26(3) of the Constitution of the Republic of South Africa Act No. 108 of 1996.

[5] Disaster Management Act 2002 (Government Gazette 44642, 30 May 2021).