Nikelo communal property association v Nikelo and Others (2590/2003) [2003] ZAFSHC 23 (9 October 2003)

IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Case No : 2590/2003

In the matter between:

THE NIKELO COMMUNAL PROPERTY ASSOCIATION Applicant

and

THENJIWE MARY NIKELO First Respondent

MARTIN MASHIYA Second Respondent

JOSEPH MASHIYA Third Respondent

LEBEKO STRYDOM NIKELO Fourth Respondent

CORAM: RAMPAI J

HEARD: 4 SEPTEMBER 2003

DELIVERED: 9 OCTOBER 2003

These are motion proceedings. The matter came to this Court by way of a notice of motion as an urgent application issued on Friday 25 July 2003 and enrolled before Van der Merwe J on Thursday 7 August 2003. It was then postponed for four weeks. The matter is opposed. The three customary sets of papers have been filed. The answering affidavit was filed on 21 August 2003. The replying affidavit was filed on 29 August 2003. On Thursday 4 September 2003 the matter was ripe for hearing. It was argued before me by Adv Carstens on behalf of the applicant and Adv Mabusela on behalf of the respondents. The one leg of the relief sought is that the respondents be evicted from Likatlong Farm. The second leg thereof is that the respondents be interdicted from alienating the property of the applicant or removing it from the farm in question.

The historical perspective of the dispute appears necessary. The respondents are living on a rural piece of land known as Likatlong Farm 25 in the district of Thaba Nchu in the Free State Province. Previously the farm in dispute was called Platrand. Originally it was registered on 17 July 1960 in terms of a Combined Title No 3257/1960.

Apparently Platrand Farm changed hands in 1981 in terms of a Deed of Transfer No T2546/1981. Whose property it became does not appear and does not really matter. On 21 February 1996 MacDonald Kenosi Moroka, the prince of Thaba Nchu donated funds to fifteen members of the community. The exact nature of the relationship between the donor and the donees does not appear. The majority of the fifteen beneficiaries were members of the Nikelo family. The written deed of donation was concluded between the charitable lawyer, Mr DK Moroka and four of the donees representing the beneficiaries. The donation led to the creation of a trust which became known as the Nikelo Trust. It was created on 21 February 1996. It was registered with the Master of the High Court on the same day 26 February 1996 in terms of section 6(1) Trust Property Control Act No 57/1998. The first of the four trustees were appointed by the Master. Among them were the first respondent, the fourth respondent and the applicant’s deponent.

Approximately two years later on 23 November 1997 a community meeting was held on the farm. It was attended by the beneficiaries of the Nikelo Trust. At the meeting an association was formed on the same day. It was called Nikelo Communal Property Association.

The founding constitution of the association was adopted on the say day.

Four days later on 27 November 1997 Nikelo Trust purchased a property called Likatlong Farm from a legal persona called Vrytex (Edms) Bpk for R300 000 per private agreement. The property was transferred on 17 June 1998 in terms of a Deed of Transfer No T13288/1998. The farm consisted of land measuring 1255,4832 hectares.

About five months later on 23 April 1998 the association was registered in Pretoria with the Department of Land Affairs in terms of section 8(3) Communal Property Associations Act No 28/1996. The communal property of the association was described as Likatlong Farm. The communal property was to be used for the following communal purposes: farming, residential and entrepreneurial.

On Saturday 31 May 2003 the members of the association held a meeting on Likatlong Farm at Thaba Nchu. The respondents who were also members of the association did not attend the meeting. A decision taken at the meeting required the respondents to vacate the farm and to desist from using the property of the association which consisted of the aforesaid farm and various other movable assets. The four respondents were residing on the farm at the time these proceedings were initiated. They were running the farm on behalf of their fellow beneficiaries or their fellow members. The decision was prompted by certain allegations of mismanagement of the communal property or communal farm. Those allegations levelled against the respondents are in dispute. I deem it unnecessary to deal with them at this moment.

The purpose of these urgent proceedings is to evict the respondent from Likatlong Farm. Mr Mabusela, counsel for the respondents, raised a point in limine that the applicant had failed to comply with certain procedural requirements of section 4 Prevention of Illegal Evictions from and Unlawful Occupation of Land Act No 19/1998.

Ms Carstens, counsel for the applicant, on the other hand argued that the provisions of the aforesaid legislation did not apply to cases such as the instant case where the person sought to be evicted was occupying the land in question for commercial or industrial purposes.

It is therefore necessary to consider the point raised in limine first. Should the point in limine succeed, it will render it unnecessary to deal with the merits. Should it fail, however, I shall proceed to deal with the merits afterwards.

The question to be decided ante omnia is whether the provisions of PIE apply to the commercial farming occupier of land or not. If they do then the provisions of section 4 Act No 19/1998 become relevant. The section provided as follows:

Eviction of unlawful occupiers. – (1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.

Subject to the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.”

Section 1 PIE Act No 19/1998 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, but excludes a person who is an occupier in terms of section 1 Extension of Security of Tenure Act No 62/1997 and also excludes a person whose informal right to land would but for the provisions of this legislation in other words PIE, be protected by the provisions of the Interim Protection of Land Rights Act No 31/1996.

The first exclusion and not the second exclusion matters for the purpose of the current dispute.

Section 1 of the Extension of Security of Tenure Act No 62/1997 on the other hand defines an occupier as a person who resides on land which belongs to another person, and who on 4.2.1997 or thereafter had consent or another right in law to do so but excludes a person using the land in question mainly for industrial, mining, commercial or commercial farming purposes.

It follows from this definition that a person who resides on another person’s land contrary to this definition is an unlawful occupier.

In dealing with the point in limine, I shall assume without deciding the issue that the land we are here concerned with was owned by the association and not the trust. It is not in dispute that the respondents were, firstly, members of the association, and secondly that they were occupying the land in question at the time the proceedings were initiated, and lastly that they were occupying the farm with the consent of the association prior to 31 May 2003. Until then therefore the respondents had the right to occupy the farm. Their occupational rights were purportedly taken away on 31 May 2003. They then became unlawful occupiers. From that day on their previously lawful possession subsequently became an unlawful possession.

The critical question at this juncture is whether a person who occupies land and cultivates it for commercial purposes is entitled to the protective procedural remedies against the illegal eviction from land in accordance with the legislative provisions of section 4(2) Act No 19/1998. To answer this question we have to embark upon a conjunctive reading of section 1 PIE Act No 19/1998 vis-Ã -vis section 1 ESTA Act No 62/1997. PIE defines an unlawful occupier restrictively by expressly excluding any person who is an occupier as defined in ESTA. See the first exclusion as fully described in paragraph 12 supra.

As we have seen in paragraph 13 supra ESTA also defines the word occupier restrictively. It does so by expressly excluding someone who occupies and cultivates the land for commercial purposes among others. But PIE unlike ESTA, does not explicitly exclude the commercial farming occupier from its definition of an unlawful occupier. It seems to me therefore that an unlawful occupier as defined in section 1 of PIE implicitly includes the commercial farming occupier as referred to in section 1 of ESTA. This may sound odd. But it is conceivable. In my opinion an unlawful occupier as envisaged in section 1 Act No 19/1998 does not loose his status as such by conducting commercial farming on the land he illegally occupies. In my view Ms Carstens’ submission that the first respondent is not an unlawful occupier within the meaning of these two words as defined in section 1 of Act No 19/1998 is untenable. I am persuaded by Mr Mabusela’s submission that the first respondent was an unlawful occupier as envisaged in the said enactment. To uphold Ms Carstens’ argument would do violence to the clear wording of the two legal prescripts mentioned above. The argument is illogical and inconsistent with the exclusionary dimensions in both sections.

What is even more telling against counsel’s argument is that there is virtually no indication in section 1 Act No 19/1998 to suggest that the lawmaker intended excluding a commercial farming occupier from the protective provisions of this social legislation. If the exclusion of the commercial farming occupier was indeed intended, the lawmaker would easily have said so as was done in section 1 of ESTA Act No 62/1997. It seems to me that the omission was deliberate and not inadvertent. The effect of accepting the exclusive argument against the commercial farming occupier as contended by Ms Carstens in stead of the inclusive argument for the commercial farming occupier would boil down to narrowing the net of the intended beneficiaries of the social legislation through a process driven by the judiciary in stead of a process engineered by a legislative machinery. It is generally undesirable to embark upon such an intervention unless compelling reasons move a court to follow that route. In the instant case I could find no such reasons.

In the case of NDLOVU v NGCOBO heard together with BEKKER AND ANOTHER v JIKA 2003(1) SA 113 (SCA) per Harms JA the court held that the provisions of PIE apply to the so-called hold-over cases. Simply explained a holdover litigant is usually a person whose occupation or possession of another’s land was initially legal but subsequently became illegal. The legality of the land occupation derived its validation from the landowner’s consent. It goes without saying therefore, that the illegality of the land possession was underpinned by the withdrawal of the landowner’s consent in such a case.

Applying the aforegoing principle to the instant case it emerges that the four respondents were occupying the land owned by the association with the consent of their association, in its capacity as the land owner. They were dwelling on the farm and cultivating it for commercial purposes among others. The association in other words the applicant’s case is that the association has withdrawn the consent it originally had given to the respondents to reside on the farm and to manage it and its other movables on behalf of all the members of the association. Since then the respondents have had no rights to reside on the farm and to run its affairs any longer.

Now on its own version, the applicant makes it abundantly plain that the respondents are hold-over occupiers. That being the case the applicants ought to have given each of the respondents the requisite notice in terms of section 4 Act No 19/1998. No such essential notice was given. Needless to say that these proceedings are undoubtedly defective. The respondents ought to have been properly notified in advance about the eviction proceedings contemplated against them. It was not done. It is incumbent upon me to ensure that no unlawful occupier is evicted from the occupied land without or before an effective written notice has been served upon her or him.

Ms Carstens contended that the applicant was entitled to be granted the relief sought against the second respondent, the third respondent and the fourth respondent because none of them had filed any affidavit in support of the answering affidavit by the first respondent. The contention cannot succeed. Notwithstanding the seemingly indifferent attitudes of the last three respondents, the omission on the part of the applicants to cause the requisite notices to be issued and served on the respondents was a procedural misstep so serious, so defective that I cannot disregard it. It may well be that the three chose to ignore the application and to place their faith in the vigilant presiding judge to protect them against the violation of their procedural rights by the applicant. The fact that the first respondent, unlike her co-respondents had reacted or responded although no effective notice was served on her does not cure the procedural defect or bolster the applicant’s case against the last three respondents. It does not in any way fortify the applicant’s case against the other respondents. It does not in itself justify their summary eviction from the aforesaid farm. Therefore I decline to grant the relief sought against the last three respondents even though they did not file any customary opposing papers. The point raised in limine by Mr Mabusela is, in my view, good in law.

At this juncture I have to consider the kind of an order to give in the circumstances of this case. Mr Mabusela urged me to dismiss the application with costs should I rule in favour of the respondents on the point he raised in limine. However, Ms Carstens asked me not to do so. Instead she urged me rather to remove the matter from the roll in order to afford the applicant an opportunity to remedy the procedural defect. The social legislation we are here dealing with is designed to eradicate two intrinsically disruptive and anti-social mischieves in our civil society. The one dimension or aim of the social legislation is the prevention of illegal eviction from land. The other dimension thereof is the prevention of the illegal occupation of land. The former seeks to protect the economic and social rights of the landless against the heartless eviction from the illegally occupied land. The latter seeks to protect the property rights of the landowner against the erosive and inhibitive invasion of their illegally occupied land.

The social legislation recognizes the explosive conflict which naturally bedevils the relation between the landowner and the landless. There always exists a real conflict of interests. In this case as well as is always the case in disputes over land such a conflict looms large on the horizon. A judge called upon to adjudicate a dispute in land cases must avoid at all costs a pure legalistic approach. A judge searching for a resolution of such a dispute has to be inventive and not dismissive. In this sphere of our law considerations of justice fairness and equity are the hallmarks of the judicial reasoning process. Having applied my mind

to the two sides of the coin, it appears to me that it will be unjust, unfair and inequitable in the circumstances of the instant case to dismiss the application.

In view of the conclusion I have already reached in connection with the point in limine, it becomes unnecessary to deal with the substance of the matter. It appears to me that the order I am about to make is not only appropriate but also just, fair and equitable in the particular circumstances of this case.

Accordingly I make the following order:

That the application is hereby removed from the roll.

That the applicant is granted leave to supplement its papers by having the requisite effective notices issued and served upon the respondents by no later than Tuesday 9 December 2003.

That the applicant must pay the wasted costs of this application including those of 7 August 2003 incurred by the first respondent before this application can again be enrolled.

That the first respondent is hereby granted leave to approach the court on the same papers duly supplemented if necessary, for the dismissal of the application should the applicant failed to comply with paragraph 25.2 and 25.3 supra.

_____________

MH RAMPAI, J

On behalf of the Applicant : Adv T Carstens

Instructed by

Henry Johnson Prokureurs

On behalf of the Respondents : Adv XH Mabusela

Instructed by

Lovius-Block

/Jacobs