Minister of Land Affairs v Gqiba and Another (847/2006) [2008] ZAECHC 176 (21 October 2008)

FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: THE MINISTER OF LAND AFFAIRS V THEMBEKILE MIKE GQIBA

AND NELSON XOLILE LANGENI

Case Number: CA 27/08

High Court: MTHATHA (TRANSKEI DIVISION)

DATE HEARD: 23 MAY 2008

DATE DELIVERED: 21 OCTOBER 2008

JUDGE(S): SANGONI J; REVELAS J; MAKAULA AJ

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): ADV MADLANGA

for the Respondent(s): NO APPEARANCE

Instructing attorneys:

Applicant(s): XM PETSE INCORPORATED

Respondent(s): NO APPEARANCE

CASE INFORMATION – FULL BENCH APPEAL

Nature of proceedings:

Topic:

Key Words:

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

Case No: 847/2006

Date Heard: 23/05/08 Date Delivered: 21/10/08

In the matter between

THE MINISTER OF LAND AFFAIRS Appellant

and

THEMBEKILE MIKE GQIBA 1st Respondent

NELSON XOLILE LANGENI 2nd Respondent

JUDGMENT

REVELAS J

[1] This unopposed appeal concerns the entitlement of the two respondents to interdict the appellant (second respondent in the court a quo) and the King Sabata Dalindyebo Municipality (first respondent in the court a quo or “the municipality”) from permitting or causing demarcation activities on the premises where the respondents live in Slovo Park, Mthatha West. The two respondents allege they are neighbours. The respondents obtained such an interdict following an urgent application by them on 21 July 2006. The first respondent deposed to the founding affidavit attached to the notice of motion and stated therein that he was authorized by the second respondent to depose to the affidavit on the latter’s behalf. The matter was postponed on several occasions and with time and the filing of more affidavits, this application lost its urgency and was eventually argued on 13 October 2006, on prolix papers, containing several disputes of fact.

[2] The respondents approached the court for the aforesaid urgent relief following two incidents which they say occurred on 8 June and 12 July 2006 respectively. On the first occasion one of the municipality’s officials arrived with a crew of workmen who began taking tape measurements on the premises. On the second occasion demarcation pins were inserted on the second respondent’s premises, after a crew of workmen arrived with 20 wheelbarrows and picks and shovels.

[3] It transpired that the Post Office intended to have a new office built on the demarcation sight and the crew in question was engaged by the municipality to commence the construction work. A man (Enrico) who appeared to be in charge of the operations, told the second respondent that he was not aware that the Post Office and the municipality had not discussed the matter with the second respondent. At the latter’s behest, he and his workmen left the premises in question. The applicants then approached their attorney of record, who subsequently had a conversation with the man called Enrico, who said a meeting would be held with those concerned.

[4] Later that day, some of the municipality’s officials, including its town planner, arrived at the premises in question or in the area, as well as a Mr Benny Ntubane who represented the appellant. Mr Ntubane confirmed in their presence that a Post Office was to be built in the area being demarcated. According to the first respondent, Mr Ntubane also said that the first respondent’s house would be demolished, that the matter had been discussed previously and that there was consultation with one of the community leaders, a Mr Jonas Ndzambule about the intended erection of a new Post Office. When the respondents’ attorney of record threatened with legal action in a letter the municipality manager, Mr Gumbi, indicated also in writing, that any legal action would be opposed and accused the respondents of illegally occupying land “set aside for development” and that their conduct constituted “land grabbing.”

[5] The respondents subsequently brought the urgent application and at the hearing thereof, the appellants disputed the respondents’ entitlement to the interdict sought on the basis that they failed to demonstrate a clear right because they were not owners or possessors of the property. The municipality referred to meetings held in 2001, where the residents in Mthatha West were advised that there would be development in the area, including the erection of a Post Office. Their main complaint was that despite this communication, some people nonetheless went ahead and occupied land in the area.

[6] Attached to the answering affidavits was a supporting affidavit, deposed to by a community leader of the three areas comprising Mthatha West, Mandela Park, Chris Hani Park and Slovo Park). He stated in his affidavit that the community and the Government had been engaged in a legal battle about land occupancy since 1995. He disputed that the respondents even lived on the premises in question, and further said that no land was allocated to anybody yet.

[7] A Ms Dubo deposed to an affidavit stating that the first respondent had nothing to do with the site he claims to be his, and does not even live on it. According to her, the erf in question belonged to her and she had bought it from a Ms Jita who in turn bought it from the first respondent. No affidavit from Ms Jita was attached, nor any documentation which one would have expected where the sale of land is concerned.

[8] The municipality further disputed that the demarcations were carried out on the premises sought to be protected by the two respondents. Mr Gqithiyaza (the Municipality’s Councillor referred to in the first respondent’s affidavit), admitted that on 8 June 2006 he was with the men who conducted demarcations, but stated that it was on a different property, namely site 2178, some 20 metres away from the properties which were the subject-matter of the application. The respondents in turn filed affidavits of a Mr Gqiba and Mr Memani, in support of their entitlement to the properties. Mr Gqiba said he “handed over” his site to the first respondent who built a house on it. Mr Memani said he sold his house to the second respondent. No documents to support the allegations were filed.

[9] Mr Ntubane stated that the appellant or Government owned the entire Mthatha West area and was in the process of transferring it to the municipality. He stated that the two structures which the applicant claimed were theirs, would eventually be demolished after eviction notices and other legal requirements have been met and the Post Office will be built on site 2178, and after the demolitions and evictions are carried out as aforesaid, the entire site (including the properties in question) will eventually be for the use of the Post Office.

[10] The appellant and municipality raised the point that the numerous disputes of fact on the papers should have been foreseen by the respondents, and that they should not have instituted legal proceedings by way of application. It was argued that the matter should have been referred to oral evidence. The learned judge in the court a quo, appreciating that she was confronted with several disputes of fact, relied on the decision in Plascon-Evans Paints v van Riebeeck paints 1984(3) SA 623 at 634-635 and determined that the matter could be decided without referring it to oral evidence. She then held that respondents had demonstrated a clear right as well as a reasonable apprehension of harm and granted the interdict. She did not discuss the facts upon which she relied to come to this conclusion, but one can presume that she regarded the respondents as either owners or bona fide possessors, facing future eviction.

[11] In my view, on the papers as they stand, it has not been demonstrated that the respondents are the legal owners of the property or in lawful possession thereof. If they were legal owners they would have been able to furnish some documentation to that effect. At best for the respondents they were in possession of the premises in question, even though it was alleged in one of the answering affidavits that the respondents did not even live in the houses concerned. It is hardly likely that they would have brought the application if they were not in some form of possession. The appellant’s argument that the respondents were not disturbed in their possession, is further not based on a contention that they were not living there, but that Enrico left the premises when they requested him to do so, and nothing further happened with regard to demarcations on the days thereafter. One can assume that the respondents were in possession of the land, although it would appear that it was not lawful possession. The land was being transferred to the municipality from the Government.

[12] The next question is whether the respondents who are in unlawful, but undisturbed possession of dwellings built on someone else’s land, are entitled to interdict the lawful owners from carrying out demarcation activities in the course of developing the land. The appellant’s case is that their possession is unlawful, and further, that such unlawful possession as they may have, was never disturbed. Mr Ntubane had said in his affidavit, that evictions in respect of the respondents’ dwellings will eventually be undertaken after the legal requirements have been met.

[13] During the arguments presented, the question arose as to whether the relief sought in the application brought by the respondents, was in the nature of a mandement van spolie, which is a remedy aimed at the deprivation or loss of possession, where the question of lawfulness of the possession is irrelevant. This remedy is not available to the possessor whose possession was merely disturbed or where there is a threat that such possession would be disturbed1. Clearly the insertion of demarcation pins is not an act of spoliation, i.e. an act causing a loss of possession. It amounts to, at the very best, a temporary disturbance. Once it ceased, its disturbance value became non-existent. Therefore the respondents

were not entitled to the mandement.

[14] In the circumstances of this case, where the possession was disturbed, the respondents would have been entitled to a prohibitory interdict, (which is in fact what they sought and obtained in the court a quo), provided they were in lawful possession2. Following the test laid down the Plascon-Evans case (supra) and considering the probabilities, the two respondents were not in lawful possession, because the land in question was in the process of being transferred from Government or the appellant to the municipality. The respondents, as squatters, were therefore not entitled to the prohibitory interdict granted.

[15] Insofar as demarcation might be construed as a clear indication of future evictions, it cannot be anticipated that such evictions will be unlawful and on that basis obtain an interdict. Mr Ntubane has stated on oath that such evictions will be carried out after compliance with the relevant laws. There could therefore be no valid apprehension that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, (“the PIE Act”) would be flouted. The question of whether the aforesaid legislation afforded the respondents a clear right was raised. Further heads of argument were also filed in this regard for which we thank counsel for the appellant. The PIE Act, which protects illegal occupiers from unlawful eviction, does not afford illegal squatters with a clear right which could be protected with an interdict, if actual evictions are not yet imminent. Demarcation might be a clear indication of evictions in the future, but it cannot be said to form part of the actual physical process of the evictions it precedes. After the demarcations were carried out, there were no further steps taken with regard to building operations. The possession remained uninterrupted. Ideally, the appellant or the municipality should have commenced with the demarcations after compliance with all the provisions of the PIE legislation, but as long as the demarcation

process did not involve physical eviction or a real deprivation or disturbance of possession, the respondents would not be entitled to a prohibitory interdict, nor a mandement van spolie. We were advised that no demarcation activities were being undertaken when the matter was argued before us.

[16] In short, the respondents did not have a clear right nor a reasonable apprehension of harm which entitled them to the prohibitory interdict which was granted. Accordingly the appeal must succeed. The appeal was unopposed. A costs order should therefore not be made against the respondents.

[17] The following order is made:

The order made by Beshe AJ dated 21 October 2006 is hereby set aside and substituted with the following:

“The application is dismissed with costs”.

___________

E REVELAS

Judge of the High Court

Sangoni J: I agree.

______________

CT SANGONI

Makaula AJ: I agree.

_______________

M MAKAULA

Acting Judge of the High Court

1 Silberberg and Schoeman: The Law of Property, Fifth Edition 2006 at 308.

2 Sonnekus and Neels Sakereg Vonnisbundel at 165-167