Sanniegraan CC v Unlawful Occupiers of Portion 50 (A Portion of Portion 24) of the Farm Korannafontein 350, Registration Division I.O North West Province and Another (M216/15) [2015] ZANWHC 56 (27 July 2015)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASE NO: M 216/15

In the matter between:

SANNIEGRAAN CC

APPLICANT

and

THE UNLAWFUL OCCUPIERS OF

PORTION 50 (A PORTION OF PORTION 24)

OF THE FARM KORANNAFONTEIN 350,

REGISTRATION DIVISION I.O

NORTH WEST PROVINCE

1ST RESPONDENT

TSWAING LOCAL MUNICIPALITY

2ND RESPONDENT

JUDGMENT

Landman J:

Introduction

[1] On 20 July 2015 I granted the following order in this application:

‘1. THAT: An order for the eviction of the First Respondent being the persons on whom service of the notice of proceedings and the application for an eviction order has been effected including Itumeleng Molutsi, Lebo Nxoxa, Monti Motsunonyane and Thabiso Botlhoko from Portion 50 (a portion of Portion 24) of the farm Korannafontein 350, Registration Division I. O., North West (“Portion 50 of the farm Korannafontein”) and for the demolition and removal of all buildings and structures that were occupied by the First Respondent and others occupiers on Portion 50 of the farm Korrannafontein be and is hereby granted. Such structures if not removed by the occupiers shall be removed by the Sheriff of this Honourable Court (“The Sheriff”) and left at the Ottosdal Municipal office for collection by those of the First Respondents or by such persons who have been affected by this order.

2. THAT: It is hereby directed that service of the aforesaid order is to be effected by the Sheriff on the First and Second Respondents in accordance with the Rules of this Honourable Court (“the Rules”) and in addition thereto by affixing copies thereof to at least four notice boards to be erected by the Applicant on Portion 50 of the farm Korannafontein for that purpose.

3. THAT: It is hereby directed that the First Respondent and the four persons referred to in paragraph 1 (supra) have to vacate Portion 50 of the farm Korannanfontein within (14) days of the date on which service of the said order has been effected on the First Respondent. It is noted that the persons listed in paragraph 1 are present in court and therefore do not require service of this order.

4 THAT: It is hereby directed that the Applicant is entitled to cause the Sheriff to carry the order out within seven (7) days after the date of the expiry of the period referred to in paragraph (3) if the First Respondent and the four aforementioned persons have not vacated Portion 50 of the Farm Korannafontein by that date.

5 THAT: The Sheriff be and is hereby authorized to request the South African Police Service at Ottosdal to assist him with the carrying out of the order and the South African Police Service at Ottosdal shall render such assistance.

6 THAT: The First Respondent and the said four persons are directed to pay the costs of

this application including the costs of Friday, 19 June 2015 as well as costs incurred by the Applicant in respect of the demolition,

removal of the buildings and structures occupied by the First Respondent and the four persons on Portion 50 of the farm Korannafontein.’

Amendment of order

[2] The order granted omits to state that it is to be pending the final adjudication of the application in accordance with section 5 of the prevention of the Illegal Eviction and Unknown Lawful Occupation of Land Act 19 of 1998 (PIE) and secondly that costs are reserved. These are the reasons for making the order as amended.

The facts

[3] Sanniegraan CC, the applicant, is the lawful owner of a piece of land known as portion 50 (a portion of portion 24) of the farm called Korranafontein 350, Registration Division IO, North West province measuring 68, 4996 hectare held by deed of transfer

T79784/2014. I shall refer to this land as the property.

[4] The occupiers of the property are referred as the ‘first respondents’.

[5] The property is situated adjacent to the south western part of the Township of Letsopa, Ottosdal, North West. The property is zoned for agricultural purposes and consists of four portions of vacant land which is divided by the road between Ottosdal and Delareyville and the road between Ottosdal and Sannieshof.

[6] Mr Jardim, the sole member of the applicant, says that on Saturday, 13 June 2015, he was advised by Cllr Sam Letlankane that a number of unknown persons were busy setting out stands on the property. Shortly after receiving this communication Cllr Heneck arrived at Mr Jardim’s residence and advised him that ‘the secretary of the North West’, Mr M Legoete has indicated that he would have to take the necessary steps to stop what was taking place on the property.

[7] Mr Jardim went to the property and noticed a number of motor vehicles there as well as a group of unknown persons who were busy setting out stands by the insertion of wooden poles or pegs in the soil on the two portions of the property which lie directly adjacent to the Township.

[8] Mr Jardim also met Warrant Officer Kitty of the South African Police Service at the property. The Warrant Officer asked him whether he had any knowledge of what was going on. Mr Jardim informed him that he had no knowledge of this and he had not granted anyone permission to set out stands on the property.

[9] On the same day at approximately 11:00, Mr Jardim received a short service message from Cllr Heneck confirming his earlier communication

and informing him that the exercise was not sanctioned by the Municipality.

[10] Mr Jardim, with the assistance of his attorney, laid a complaint of trespassing with the South African Police Service at Ottosdal under CAS 77/6/2015.

[11] Shortly after laying the complaint, Mr Jardim received a call from the administrator of the Tswaing Local Municipal, Mr Kingsley

Sefularo, who advised him that the Municipality distanced itself from what was transpiring at the property and that it had no intention of becoming involved in the matter.

[12] On the following day, Warrant Officer Kitty informed Mr Jardim that the South African Police Service could not take any steps in respect of the complaint without a court order directing them to do so.

[13] On Wednesday, 17 June 2015, Mr Jardim took photographs of the property that show that two shacks or structures had been erected on the property. Mr Jardim also found a number of persons busy clearing the stands.

[14] On the same day the applicant’s attorney wrote to the municipal manager and the councilors referred to above, informing them that the property was illegally occupied by unknown persons and that the second applicant was aware of this conduct. The second applicant was requested to furnish certain information, namely:

‘1. Does the Tswaing Local Municipality approve the acts of the people to occupy the land?

2. Our client says that spikes and pens have been sunk to mark stands on the property. Is the Tswaing Local Municipality involved in the marketing or marking of the stands? Were any officials and employees or councillors of Tswaing Local

Municipality involved in these acts and the marking or layout of the stands?

3. Was any record kept of the people to whom the stands were given? If so, we request a copy of the list of people to whom the stands were given.

4. Was anybody paid for the stands?

Our client requires that the Tswaing Local Municipality should take action to stop the illegal behaviour and conduct.

Our client requires the Tswaing Local Municipality to protect the rights of the owner of the property.’

No reply was received to this letter.

Order in terms of section 5 of PIE

[15] The applicant launched an urgent application in terms of section 5 of PIE.

[16] The first respondents were represented by Mr Skibi of the Mafikeng Justice Centre. The application was postponed to 20 July 2015 and the respondents were put on terms to file an answering affidavit.

[17] My brother Hendricks J issued an order in the following terms:

‘1. The forms and service provided for in the Rules of this Honourable Court be dispensed with and the matter be heard on an urgent basis.

2. The notice of proceedings as contemplated in section 5(2) and (3) of the Prevention of Illegal and Unlawful Occupation of Land Act, number 19 of 1998 (PIE) attached hereto as Annexure A is authorised.

3. Service of the aforesaid notice and this application has to be effected by the Sheriff of this Honourable Court (“the Sheriff”) on the first and second respondent in accordance with the rules of this Honourable Court and, in addition, thereto by affixing copies thereof to at least four notice boards to be erected by the applicant on portion 50 (a portion of portion 24) of the farm called Korranafontein 350, Registration Division IO, North West province for that purpose.’

Service of annexure “A” and application for eviction

[18] The returns of the Sheriff show that annexure “A” and the application were served on 21 July 2015 on the second respondent and affixed to four notice boards on the property and served on the persons whose names are set out on Annexure “B” to this judgment.

Application for postponement and withdrawal of Justice Centre

[19] On 20 July 2015 the application served before me. Ms Ntshole of the Mafikeng Justice Centre appeared for the first respondents, although the Justice Centre had withdrawn as attorneys of record by notice delivered on 13 July 2015. She informed me that the first respondents’ request for legal aid had been refused on 12 July and she requested that the application be postponed so that they could lodge an appeal against the refusal of legal aid with the regional head office of the Legal Aid Board in Bloemfontein. She was unable to indicate why legal aid had been refused or when the first respondents intended appealing the decision. She requested permission to withdraw from the hearing.

[20] The application for postponement was opposed by the applicant, who was represented, as previously, by Ms Zwiegelaar. The applicant had been informed on 14 July 2015 that the Justice Centre intended to apply for a postponement of the application. The applicant filed a notice of opposition together with an affidavit by Mr Jardim.

[21] In his affidavit, Mr Jardim, explains that the application was postponed for the first respondents to deliver an answering

affidavit. On this occasion Mr “Xaxa” (presumably Mr Nxoxa) and other persons were present at court. As far as he knows Mr Nxoxa is not one of the first respondents i.e. an occupier of the property and he does not know in what capacity Mr Nxoxa appears. Mr Nxoxa has no locus standi in this matter.

[22] The action was initiated by an urgent application because the longer it takes for an eviction order to be granted the more illegal occupiers will invade the property. He took the previous photographs attached to his affidavit and pointed out that on 18 June, when he took the photographs, there were two structures erected on the property. However, on 15 July 2015, when he also took photographs, 43 structures had been erected on the property. He submitted that any further delay will cause more problems for the applicant as well as for the first respondents and any further unlawful occupiers of the property. Other photographs taken on 18 June were attached showing persons busy preparing to erect a structure on the property, wooden poles marking stands and persons marking stands preparatory to erecting structures.

[23] Mr Jardim stated that his attorney of record had been approached by the second respondent, the Municipality, for the purpose of settlement negotiations. These entailed that the second respondent would apply to the Department of Rural Development and Land Reform, North West to purchase the property on its behalf. His attorney advised them that the first applicant was not prepared to entertain settlement negotiations before the finalisation of the application for an eviction order. This decision, he says, is primarily based on the fact that the second respondent had a number of years ago reached a similar settlement agreement with the landowner of the farm De Kilpdrift in Sannieshof (a municipality falling within the area of jurisdiction of the second respondent). When that property was invaded by members of the Agisang community the owner of the property applied for an eviction order. The second respondent informed him that it would apply to the Department to purchase the farm. However, the Department has not yet purchased the farm De Klipdrift from the owner and the farm is still unlawfully occupied. A copy of the Council resolution is attached to his affidavit.

[24] Mr Jardim contends that the first respondents are depriving the applicant arbitrarily of the property as they do not have any legal right in respect thereof. They also do not have any defence to the eviction application is concerned. A further postponement would extend this deprivation. He also points out that the property is zoned for agricultural purposes and not for residential purposes. No services such as refuse and sewerage are provided on the property and the occupation constitutes a health risk to the community of Ottosdal and has a negative impact on the land.

[25] Mr Jardim opposes the application because there is no indication of the grounds of appeal or how long the envisaged appeal would take or whether the first respondents would be successful. He says there is a strong possibility that the finalisation of the application for eviction, which was brought up as an urgent basis, would be unduly delayed if the postponement were to be granted. Should the applicant be granted invasion of the property would continue, which would worsen matters for the applicant as well as for the respondents. He also confirmed that the South African Police Services have not acted in spite of requests to do so.

[26] The first respondents did not file an answering affidavit as regards to the main application nor did they answer or reply to the affidavit opposing the postponement. Ms Nsthole said that she had not consulted with the four men who were in court; she believed them to be part of the first respondents.

[27] I permitted Ms Nsthole to withdraw from the proceedings and I invited the four men present to address me on the issue of a postponement. The four men gave their names as, Itumeleng Molutsi, Lebo Nxoxa, Monti Motsunonyane and Thabiso Botlhoko. They said that they were part of the respondents and that they had each received a copy of the application from their children or neighbours. They resided on the property.

[28] I was told that there was an accommodation problem in the township. I inquired whether they were able to inform me of their right to occupy the property. Mr Molutsi said that a community meeting had been held. The meeting was addressed by the Mayor who said that there was land close by to the township. The Council could buy the piece of land and the people could go and settle there. When asked whether the owner of the land had given them permission to occupy the land he said that he never met the owner of the property.

[29] Various documents were handed in. They show that the applicant was interested in selling a portion of the property, but the offer had not been accepted by the second respondent and had thereafter been withdrawn. The four men had been to the Department of Land Affairs who said they would contact the owner of the land, the community and the second respondent.

[30] I refused the application for a postponement of the application principally because the four men simply had no permission from the applicant to occupy the property and their occupation was prima facie unlawful.

The merits of the application for eviction

[31] After refusing the application for a postponement I inquired from the four men whether they would give evidence under oath and set out their case as they had explained it to me when the postponement was being considered. They declined to do so and said they needed legal assistance.

[32] I subsequently granted the order which I have amended because:

(a) I was satisfied that the notice of proceedings and the application had been served on the first respondents who names appear in the returns of service and are set out on Annexure “B” attached hereto.

(b) I was satisfied that the four men were also first respondents although there were no returns of service. I accepted their word that they also occupied the property and they had each received the notice of proceedings and the application.

(c) I was satisfied that the Local Municipality, the second respondent, was given due notice of the, application.

(d) The first respondents were offered an opportunity to place their defence under oath by means of oral evidence.

(e) I was satisfied that the occupiers do not have the consent of the owner of the land, the applicant, nor Mr Jardim the sole member of the applicant and person in charge of the property, to lawfully occupy the property.

(f) I was concerned about the requirement that there be a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land. Land is resilient but there will be some damages caused by human settlement.

(g) I was satisfied that the likely hardship to the owner if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted. In coming to this decision I especially influenced by the fact that the unlawful occupation can be described as an organized land invasion and does not concern residents who had previously occupied the property even without the permission of the owner. In addition the occupation has been of limited duration. A refusal of an interim eviction order would cause the applicant more hardship that the unlawful occupiers of the property.

(h) In the case of a planned and organized land invasion there is no other effective remedy available than eviction of the unlawful occupiers. The rule of law does not sanction this kind of self-help.

(i) I was satisfied that it will be just and equitable to grant the order because the occupation was of short duration and permanent structures (in the sense that the structures are capable of being reduced to their components) have not been erected.

(j) No details are on record as regards the needs of the elderly, children, disabled persons and households headed by women save for the name of one woman upon whom the application was served. The first respondents declined an invitation to give evidence. But in view of the short duration of the occupation and taking into account the submission by Mr Nxoxa that the first respondents were occupying shacks on erven in the township, I was satisfied that this class of occupants will be able to return with their belongs and material to the abodes they occupied before unlawfully occupying the property of the applicant which is without any services.

(k) I am mindful of the experience of a previous landowner of property in this municipal district and the probability that the applicant would suffer a similar fate.

(l) I determined the date on which the occupants must vacate the property which is a just and equitable date taking into account the proximity of the property to the township, the nature of the structures and the short unlawful occupancy of the property.

(m) I also determined the date on which the first respondents must be evicted if they do not vacate the property. I have provided in the order for the demolition of the structure but not the destruction of the material and I have ordered that the material that is not removed by the first respondents must be left at the Municipal offices.

(n) I have provided for the Sheriff to enlist the assistance of the South African Police Services if need be.

Costs

[33] The costs of this application are reserved for decision by the court hearing the final application for eviction. The first respondents will be able to avoid some costs by vacating the property on by the date fixed in the order

Amended order

[34] The order as amended is set out below and replaces the previous order. The amended order is to be served according to its terms. The amended order reads:

‘1. THAT: pending a decision on a final application for eviction to be instituted within 20 days from the date of this order, an order for the eviction of the First Respondent being the persons on whom service of the notice of proceedings and the application for an eviction order has been effected including Itumeleng Molutsi, Lebo Nxoxa, Monti Motsunonyane and Thabiso Botlhoko from Portion 50 (a portion of Portion 24) of the farm Korannafontein 350, Registration Division I. O., North West (“Portion 50 of the farm Korannafontein”) and for the demolition and removal of all buildings and structures that were occupied by the First Respondent and others occupiers on Portion 50 of the farm Korrannafontein be and is hereby granted. Such structures if not removed by the occupiers shall be removed by the Sheriff of this Honourable Court (“The Sheriff”) and left at the Ottosdal Municipal office for collection by those of the First Respondents or by such persons who have been affected by this order.

2. THAT: It is hereby directed that service of the aforesaid order is to be effected by the Sheriff on the First and Second Respondents in accordance with the Rules of this Honourable Court (“the Rules”) and in addition thereto by affixing copies thereof to at least four notice boards to be erected by the Applicant on Portion 50 of the farm Korannafontein for that purpose.

3. THAT: It is hereby directed that the First Respondent and the four persons referred to in paragraph 1 (supra) have to vacate

Portion 50 of the farm Korannanfontein within (14) days of the date on which service of the said order has been effected on the First Respondent. It is noted that the persons listed in paragraph 1 are present in court and therefore do not require service of this order.

4 THAT: It is hereby directed that the Applicant is entitled to cause the Sheriff to carry the order out within seven (7) days after the date of the expiry of the period referred to in paragraph (3) if the First Respondent and the four aforementioned persons have not vacated Portion 50 of the Farm Korannafontein by that date.

5 THAT: The Sheriff be and is hereby authorized to request the South African Police Service at Ottosdal to assist him with the carrying out of the order and the South African Police Service at Ottosdal shall render such assistance.

6 THAT: The costs of this application are reserved for decision by the court hearing the final application for eviction.

A A Landman

Judge of the High Court

Annexure “B”

Case no: M216/15

Mr J Milamo

Mr A Mokgabisi

Mrs L Fini

Mrs M Letlhoo

Mrs R Williams

Mr J Phutagae

Mr B Thakane

Mrs J Mlhotonjane

Mr A Selemetse

Mr S Mogale

Mr P Maleleke

Mr A Tlhole

Mr W Tsholo

Mr T Diphoko

Mrs M Matseng

Mr I Heyman

Mr K Saudi

Mr J Motebi

Mr K Tsholo

Mrs B Morokwe

Mr J Moroti

APPEARANCES

Date of hearing:

20 July 2015

Date of judgment:

27 July 2015

For the Applicant:

Adv Zwiegelaar instructed by Smit Stanton Attorneys

For the first respondents: Itumeleng Molutsi, Lebo Nxoxa, Monti Motsunonyane and Thabiso Botlhoko

For the second respondent: