Nordin Farms (Pty) Ltd v Mosotho and Others (1565/2019) [2020] ZAMPMBHC 17 (3 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MAIN SEAT)

CASE NUMBER 1565/2019

In the matter between:

NORDIN FARMS (PTY) LTD

APPLICANT

AND

PHILEMON MOSOTHO

FIRST RESPONDENT

UNKNOWN UNLAWFUL OCCUPIERS

THE REMAINING EXTENT OF PORTION 3

SECOND RESPONDENT

(A PORTION OF PORTION 1) OF THE FARM

DONKERHOEK 138 REGISTRATION DIVIDION

J.T MPUMALANGA

EMAKHAZENI LOCAL MUNICIPALITY

THIRD RESPONDENT

JUDGMENT

KGOELE J

INTRODUCTION

[1] The applicant, a company duly registered and incorporated in terms of relevant legislation of the RSA, applies for eviction of the first and second respondents from the immovable property known as the remaining extend of portion 3 of the farm Donkerhoek 138, Registration Division J.T, Mpumalanga.

2] The respondents apparently stay together but it is not clear to the applicant whether they are husband and wife or just life partners. The contention of the applicant is that they are unlawfully occupying its property since 2017, which period is longer than six months.

3] This matter was heard on the 28 July 2020 which period fell within Alert Level 3 of the COVID-19 lockdown and was heard through virtual hearing. Although the first respondent was not legally represented at that time, I requested the office of the Registrar to make it possible for him through the IT personnel office to participate in the proceedings. They did eventually set a virtual system as requested and he was able to participate in this proceedings. He was basically asking for further postponement of the matter and unfortunately his application was refused and the main application proceeded unopposed because there were no papers filed from his side.

THE APPLICATION FOR POSTPONEMENT

4] As already indicated above, the first respondent appeared without legal representative. When the Court engaged him as to why and where his legal representative was, he indicated that he since spoke to him some time back but with no precision about the date. He further indicated that his legal representative promised to prepare the necessary documents that was required by the Court previously and also to send them to the Court, including appearing in Court on the date of hearing. According to him he was surprised by the fact that when he arrived at Court on the day of the hearing of this matter that, he was not at Court.

5] Advocate Dreyer representing the applicant vehemently opposed the postponement. His submissions were amongst others that at the time when this matter was case managed by Acting Judge Mankge and postponed to the date of hearing, the first respondent was in Court. He amongst others promised the Court as per Mankge AJ that he is going to brief a legal representative. In complete disregard of the directive issued by the Court as per Mankge AJ, the first respondent did nothing. Seeing that nothing was coming from his side, the applicant ended up serving a notice in terms of Rule 30A read with Rule 37A of the Uniform Rules of Court which was served on him and the second respondent on 3 March 2020. He urged this Court not to grant a postponement for the second time for the same reason advanced by the first respondent previously.

6] I refused the application for postponement because in my view, the first respondent did not make out a case for this matter to be postponed for the second time on the same reason. In addition to the submissions made by Adv. Dreyer regarding the non-compliance of the respondent with the directives of the previous Court Order, I also noted that the said directives were issued on the 18 November 2019 and he signed the Case Management directives which were made an Order of Court. This date, is a period before we even start thinking and talking about a lockdown in our Country. He had four months before the advent of the lockdown in which period he could have secured his legal representative as he promised. It should be noted that the respondent is not decrying lack of funds. The same applies to the Rule 30A application because it was served personally on him on 03 March 2020, about 24 days before the announcement of the lockdown.

7] The Court also took into consideration the fact that this matter has long been on the roll. The respondents elected not to oppose the application when the notice of motion was initially served on them. They did not file any papers and disregarded the legal process. They were again served with a notice of set down of the matter, but did nothing except coming to Court on 18 November 2019 when the matter came before Mankge AJ. Despite the fact that the Court bent backwards to assist them by postponing the matter on that day, they failed to do anything, let alone bring their legal representative to Court on the day of the hearing. A proper calculation reveals that he had eight months to secure his legal representative but he failed. I am of the view that the Court gave the respondents ample chance of getting their house in order with regard to legal representation and the lockdown did not play any part in hampering their endeavours if there were any. This is also not the reason advanced by the first respondent. For example, the answering affidavit should have been filed by December 2019. If the first respondent really took his promise seriously, his answering affidavit should at the least have been filed by the said legal representative long before the lockdown. The above are reasons why I dismissed his application for postponement and why the matter proceeded unopposed.

APPLICABILITY OF THE PIE ACT

8] According to the applicant, the most relevant portion of the farm in question for the purpose of this application is portion 3. Both portion 3 and 5 were initially own by the father in law of the deponent to the founding affidavit, Mr David John Weir, who is a caretaker in respect of the relevant land own by the applicant. He attached two relevant tittle deeds which depicts that his father in law, the late Mr Merwyn Nordin, acquired the two portions in question in 1965 and 1987 respectively.

9] According to him, he started visiting the farms about 1978 when he started a love relationship with his wife. At that time the late father of the first respondent, Mr Piet Peach Mosotho, was a resident on portion 5 with his family. He was also employed by the late Mr Nordin. The father of the first respondent passed away in 2004. But according to the deponent of the founding affidavit, at the time of the passing away of his father, the first respondent together with his brother Mr Timot Mosotho had already voluntarily vacated portion 5 where they lived with their father around 1988. The first respondent was according to him never employed on a full time basis but occasionally assisted the late Mr Nordin on a part time basis until he left the farm. The sister to first respondent, Mrs Magomu Msuthu, is still lawfully residing on portion 3 according to the deponent of the founding affidavit, his sister together with the other labour force and lawful occupants on the land in question were initially staying in portion 5 until they were relocated to portion 3.

10] The deponent of the founding affidavit further alleges that, the wife/ life partner/ concubine of the first respondent who is cited as the second respondent in this proceedings, never resided on any portion of the land until they together with the first respondent unlawfully entered the land in 2017. The late Mr Nordin passed away on 23 April 2012 and the two farms/portions were transferred to the applicant from the estate of the late Mr Nordin. The grazing portion of these two land is currently leased to Mr Jan Hamman who deposed to a confirmatory affidavit that on or about June 2017, he noticed that a new gate had been inserted into the border fence of portion 3. He also came across a dwelling that the respondents were at that time busy erecting. The respondents were eventually contacted by the deponent to the founding affidavit after this discovery, but they blatantly refused to go.

11] The applicant contends in its papers that it applies for the eviction of the respondents firstly because they are unlawfully occupying the said land without the applicant’s consent and secondly, because the applicant is deemed to be in breach of the lease agreement with the lessee Mr Hamman, since it does not provide him with the undisturbed possession of the area that he is leasing.

12] I am thus satisfied from above facts that the matter falls squarely under the provision of The Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (the PIE Act). The extension of security of Tenure Act 62 of 1997(ESTA) is not applicable in this matter because the first respondent vacated the property in 1988.The second respondent never resided on the farm. The respondents were thus not residing on the property on 4 February 1997 until they came to unlawfully occupy it in 2017. They unlawfully gained access to the property by cutting a fence and started to erect a structure on the property. The applicant confronted them and it cannot be said that they had consent of the owner as envisaged in section 3 of ESTA.

13] The Land Reform Act 3 of 1996 (Labour Tenants Act) is also not applicable. The deponent to the founding affidavit indicated that he was familiar with what was happening at the two farms. He confirmed that although the father to the first respondent received a salary as a general farm labourer, he did not provide labour to the applicant or to the late Mr Nordin in consideration for any cropping or grazing rights on any of those farm, further that, the properties were not leased to anyone until his father passed away in 2004. The same applies to the first respondent except for occasionally assisting the late Mr Nordin on ad hoc basis.

COMPLIANCE WITH PIE

14] Nothing much can be said on this issue because it is clear from the papers that the statutory requirements of the PIE Act were complied with. Firstly, the notice in terms of section 4(2) which duly complied with the PIE Act was duly authorised by the Court. It was thereafter served personally on both respondents. It contained the notice of the date of the hearing and setting out the grounds for the eviction. This date was depicted in the notice of set down which was also served on the both respondents. This is the reason why the first responded appeared in Court on the 18 November 2019 before Mankge AJ.

CONSIDERATION IN TERMS OF SECTION 4(7) OF PIE

15] In view of the fact that the matter was proceeded with on the applicant’s paper only, there is therefore no valid defence

before Court. Despite this, I am of the view that the applicant complied with all the requirements of section 4(7) of the Act. I am also satisfied that the papers and the submission made by the applicant’s Counsel reveals that the respondents are clearly

illegally occupying the property of the applicant, and this fact was communicated to them on 17 July 2017, which date was less than six months after their illegal occupation. Charges of trespassing were also laid at the police station on the 11 June 2017 but this did not assist the applicant in any manner.

16] In determining whether it would be just and equitable to grant an eviction Order the Court usually considers all relevant circumstances

including whether land has been made available or can reasonably be made available by third respondent. The third respondent did not file any paper and thus it is not known whether land can be reasonably made available by the third respondent. However, this is of no consequences in the case of first respondent and his wife/partner because the papers before Court reveals that they own another house which is located in Belfast area. In addition, thereto, it also appears from the papers that in an effort to amicably resolve the problem, the applicant made an offer to them to move to the section of portion 3 of the farm where all the labourers and his sister currently reside, but this was declined. The applicant cannot therefore be left hamstrung by the conduct of the first respondent of even refusing the generosity offered by the applicant. Nothing in the papers of the applicant reveals that this offer was later withdrawn. This Court cannot therefore conclude that the respondents do not have an alternative accommodation/place to relocate to.

17] In addition to the above, I fully agree with the submission of the applicant’s Counsel that there are no circumstances before the Court which are indicative of a situation where the first respondent and his wife should be allowed to continue their unlawful occupation of the farm. On the contrary, should they be in need of assistance because of their age (of which there is no evidence), they would be better off at the house near the town of Belfast where their children are present to assist them. They will not be homeless if the eviction Order is granted. The applicant’s papers also reveal that there are no children in the said house of the first respondent and his wife who live with them on the farm. Further that, the first respondent and his wife are not disabled and their household its clearly not headed by a woman.

18] I am also mindful of the fact that I need to also take into consideration the interest of the owner and balance it with the

interest of the unlawful occupier. In casu, the first respondent and his wife clearly have no right to occupy the land of the applicant, have alternative housing of their own and do not fall within one of the special categories of vulnerable person listed in section 4(7). The need to protect applicant’s right as property owner outweighs the interest of the first respondent and his wife. The applicant presented to the Court all the relevant facts known to it, including the circumstances of the first respondent and his wife. I am of the view that the facts submitted by the applicant justifies a finding that it is just and equitable for this Court to grant the eviction Order.

CONSIDERATION IN TERMS OF SECTION 4(8) OF PIE

19] The applicant decries that, because of the history of the matter which is evident of the mala fides of the part of the respondents and their attempts to delay this matter to frustrate the legal process and the applicant, it would be just and equitable to grant an Order that they shall vacate the farm not later than 31 August 2020. I do not agree with this submission.

20] Firstly, the date has been overtaken by the time used in penning down this judgment and the delivery thereof.

21] Secondly, Section 36 of the regulations issued in term of the Disaster Management Act 2002, published in Government Gazette 43364 on 28 May 2020, provides that, subject to section 36(2) a person may not be evicted from his or her home during the period of Alert Level 3 lockdown period. Section 36(2) provides that the Court may grant an Order of eviction which Order may be stayed by the Court and suspended until the last day of the Alert Level 3 lockdown period unless the Court decided that it is not just and equitable to stay and suspend the Order. Although we are at the moment in Alert Level 2 lockdown and many restrictions relaxed including the inter Provincial travel, the regulations regarding evictions has not changed.

22] Furthermore, I am of the view that although the applicant indicated that the respondents has a house in Belfast, and further that there is currently no restriction on moving to a new place of residence, I do not have the full picture of what the living conditions at the said house in Belfast are. I am saying this because in paragraph 30 of the founding affidavit the deponent, in addition to the fact that the first respondent has a house in Belfast area, indicated that some of his children currently reside there. I find it proper for the respondents to be afforded time to fully and timeously announce to their children their arrival rather than to pounce on them. Although the house they are living in at the farm is still a shack made of corrugated iron which they can simply demolish, they will probably need time to also arrange the relocation thereof. I am therefore of the view that it will be just and equitable that they be given a period of two months from the date of service of this judgment for them to vacate the premises.

THE ORDER

23] Consequently, the following Order is made:

23.1. That the first and second respondents be evicted from the immovable property known as the Remaining Extent of Portion 3 (A Portion of Portion 1) of Farm Donkerhoek 138, Registration Division J.T, Mpumalanga and that they are ordered to vacate the said property within 60 (sixty) calendar days from date of service of this Order;

23.2. That the Sheriff is mandated and ordered to evict the first and second respondents from the immovable property known as the Remaining Extent Portion 3 (A Portion of Portion 1) of the Farm Donkerhoek 138, Registration Division J.T, Mpumalanga in the event that they fail to vacate the said property within 60 (sixty) days from date of service of this Order;

23.3. That the first and/or second respondents are ordered to pay the costs of this application jointly or severally, the one paying the other to be absolved;

23.4 The attorney of record of the applicant is ordered to make sure pursuant to the undertaking they made that the Judgment and Order of this Court is personally served on both the respondents.

________________________

JUDGE OF THE HIGH COURT

APPEARANCES

Counsel for the applicant: Adv Dreyer

Instructed by: Caz Dry Attorneys, Nelspruit

Counsel for the respondents: In person

Date of hearing: 28 JULY 2020

Date of Judgment: 3 SEPTEMBER 2020

(through email annelien@cdlaw.co.za)