Unlawful Occupiers of Remainder of Portion 0052 of the Farm Elandsfontein v Magistrate Brits Magistrate's Court and Another (12820/06) [2007] ZAGPHC 205 (14 September 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NUMBER: 12820/06

DELIVERED ON: 14 SEPTEMBER 2007

REPORTABLE

In the matter between:

UNLAWFUL OCCUPIERS OF REMAINDER OF PORTION 0052 OF THE FARM ELANDSFONTEIN

Applicants

and

THE MAGISTRATE. BRITS MAGISTRATE'S COURT: H GLASS N.O.

First Respondent

LOCAL MUNICIPALITY OF MADIBENG

Second Respondent

JUDGMENT

NTHAI AJ

A.

INTRODUCTION

[1] The applicants ("unlawful occupiers") are the unlawful occupiers of

remainder of Portion 52 of farm Elandsfontein who seek an order in the

following terms:

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[1.1] Calling upon the respondent to show cause why the order and/or

judgment granted in favour of the second respondent by the first

respondent on 17 October 2005 in the Magistrate's Court for the district

of Brits, under case number 13523/05, should not be reviewed and

corrected, or set aside;

[1 .2] Calling upon the respondents to show cause why the order and/or

judgments granted in favour of the second respondent by the first

. respondent on 10 January 2005 in the Magistrate's Court of Brits under

....

case no 13523/05 should not be reviewed and set aside;

[1.3] Ordering the respondents to pay the costs of this application jointly and

severally, and only in the event of opposition;

[1.4] Granting the applicant such and/or further relief as the honourable

court may deem fit.

[2] The first respondent is the magistrate H Glass N.D. and the second

respondent is the Local Municipality of Madibeng ("Madibeng

Municipality"). The first respondent abides the decision of this court.

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B. BACKGROUND

[3] Some of the unlawful occupiers initially resided in Damonsville and the

surrounding area. They lived in difficult conditions in the area and they

took an opportunity to participate in the Reconstruction and

Development Programme ("RDP") housing scheme. They did so by

registering for housing subsidies with the Madibeng Municipality. The

deponent to the founding affidavit Mcendisi Gxadekile ("Gxadekile")

moved to Damonsville township, North West Province in January 2005

together with his wife and two of his six children. He rented a shack at stand no. 219. This shack was divided into four small rooms and his

family occupied one of the rooms. He struggled to pay rental in the amount of R250 and he was frequently threatened by the landlord. The

..

landlord at some point threatened to physically harm him and others if

they did not leave his farm.

[4] On or about March 2005, he heard that there was an empty land where

he could erect a temporary shelter whilst awaiting the outcome of his

application for the RDP house. On 8 March 2005, he inspected the

property and moved onto the property with his family.

[5] His stay on the property together with the other unlawful occupiers led

to the Madibeng Municipality instituting a court action to evict the

unlawful occupiers. The order was granted on 17 October 2005. There

is a dispute as to whether at the time when the order was obtained, the

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unlawful occupiers were in fact occupying the land or just empty

shacks were erected on the property ..

[6] In the founding affidavit in support of the eviction order, Mr Sekgothe

Teboho Ntlatleng indicates that during August 2005 he received

information that there were people busy erecting shacks on the

property. Indeed when Mr Mkhabela who is Divisional Manager: Land

and Housing of the Madibeng Municipalitywent to investigate, he found

people busy erecting shacks on the property. Before the interdict

. application could be finalised, Mr Mkhabela visited the area again and

found that 20 sh acks had been erected on the remaining extent of

. Portion 52 of the farm Elandsfontein. It is not clear ·in his affidavit

whether there were people who had already occupied the land or

whether it was only people who had erected 20 shacks.

[7] In the answering affidavit of Madibeng Municipality, it is simply alluded

to that there seem to be a contradiction as to when did Gxadekile move

onto the property, whether it was on 8 May 2005 or 12 March 2005. It

is not pertinently denied that at that time Gxadekile and others had

already moved onto the property. I have no reason to reject the

evidence of Gxadekile that they had moved onto the property on or about March 2005.

-5­C .. APPLICANTS' CONTENTIONS

[8] The unlawful occupiers rely on the following grounds of review:

[8.1] gross irregularity in that the first respondent ignored the relevant peremptory provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act ("PIE"); 1

[8.2] failure to comply with section 4 of PIE;

[8.3] failure to adhere to the audi alteram partem rule;

[8.4] the first respondent was bias and showed malice and as such failed to apply his mind to the matter before him;

[8.5] first respondent acted ultra vires sections 4, 7 and 8 of PIE;

[8.6] failure to adhere to the peremptory provisions of PIE in that the first respondent failed to investigate whether the Madibeng Municipality had made available alternative land.

1. Act 19 of 1998

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D. MADIBENG MUNICIPALITY'S CASE

[9] Madibeng Municipality's contentions can be summarised as follows:

[9.1] Madibeng Municipality contends that section 4 of PIE was not applicable as the application in the magistrate court was brought in terms of section 6 of PIE;

[9.2] The deponent lacks locus standi to bring the action;

[9.3] Failure to investigate alternative land should be condoned as at that time, there was already an interdict prohibiting the occupation of the land;

[9.4] No constitutional duty to provide alternative accommodation exists where the unlawful occupiers brazenly proceeded to occupy land without the consent of the owner.

E. APPLICATION FOR CONDONATION

[10] Before dealing with the merit of this matter, it is necessary to deal with the application for condonation for the late filing of the answering affidavit brought by Madibeng Municipality. The application was not opposed by the unlawful occupiers. As I was satisfied that factors that

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had to be taken into consideration in exercising my discretion had been proved, I granted the application for condonation.

F. LOCUS STANDI

[11] The other issue that can be disposed of immediately is the contention by Madibeng Municipality that Gxadekile had no locus standi in the magistratre court to bring the rescission application in that court. As I understand the unlawful occupiers’ contention on this point is that the proceedings were brought in terms of section 38 of the Constitution. Madibeng Municipality overemphasises the fact that in the court a quo there was no resolution authorising Gxadekile to act on behalf of the unlawful occupiers, as has now been done in the high court. On this basis, I am urged to accept that he never had locus standi, and as such in these subsequent review proceedings, such locus standi is non-existent.

[12] Apart from acting in the interest of other unlawful occupiers, I believe that Gxadekile had an interest in the matter and as such could bring the proceedings in his own interest.2

2

Section 38(a) of the Constitution (Act 108 of 1996)

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[13] In any event, in Campus Law Clinic, University of KZN v Standard Bank of SA,3 the Constitutional Court indicated that given the broad

provisions of section 38 of the Constitution: the fact that a party was

not a party to the proceedings in any of the court a quo is not an

absolute bar to that party being accorded standing to bring an

application for leave to appeal.

[14] In view of the foregoing, I see no reason why Gxadekile should be

deprived an opportunity to approach this court even if it were to be

accepted that he was not properly authorised in. the court a quo.

G. SECTION 4 NOTICE

[15] In view of the conclusion that I have reached in this matter, it is not

necessary to deal with the other grounds of review raised by the

unlawful occupiers. I confine myself to the contention that the first

respondent failed to comply with a mandatory and material procedure or condition prescribed by an empowering provision 4 in that the notice

envisaged in section 4 of PIE was not given.

3 4

2006 (6) SA (CC) 103 at 112, PARA 20 Section 6(2)(b) of PAJA

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[16] Before dealing with the provisions of section 4 of PIE, it is important to always bear in mind that PIE was enacted to regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances.5 This legislation, in my view was passed in

. recognition of the past history of this country, where majority people did not enjoy the right to shelter. Furthermore, the legislation was enacted also to prevent the arbitrary manner in which some of the evictions were carried in the past. Most important to accord unlawful occupiers their right to dignity.

[17] Section 4 provides as follows:

"(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.

(2) 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.

5 Preamble: PIE

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(3) 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.

(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to

receive adequate notice and to defend the case.

(5) - The notice of proceedings contemplated in subsection (2) must-

(a) state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

(b) indicate on what date and at what time the court will hear the proceedings;

(c) set out the grounds for the proposed eviction; and

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(d) state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

(6) If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

(7) If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

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(8) If the court is satisfied that all the requirements .of this, section have been complied with and that no valid defence has been raised by the unlawful .occupier, it must grant an .order far the eviction .of the unlawful .occupier, and determine -

(a) a just and equitable date an which the unlawful .occupier must vacate the land under the circumstances; and

(b) the date an which an eviction .order maybe carried out if the unlawful occupier has not vacated the land an the date contemplated in paragraph (a).

(9) In determining a just and equitable date contemplated in subsection (8), the court must have regard to all relevant factors, including the period the unlawful .occupier and his .or her family have, resided an the land in question.

(10) The court which .orders the eviction .of any per san in terms .of this section may make an .order far the demolition and removal .of the buildings .or structures that were .occupied by such person an the land in question.

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(11) A court may, at the request of the sheriff, authorise any person to assist the sheriff to carry out an order for eviction, demolition or removal subject to conditions determined by the court: Provided that the sheriff must at all times be present during such eviction, demolition or removal.

(12) Any order for the eviction of an unlawful occupier or for the demolition or removal of buildings or structures in terms of this . section is subject to the conditions deemed reasonable by the court and the court. may, on good cause shown, vary any

. condition for an eviction." (Underlining supplied)

[1 $] Initially, Madibeng Municipality submitted that the proceedings in the magistrate court were brought in terms of section 6 of PIE. In argument, Mr Mawila who appeared for Madibeng Municipality conceded that the section 4 notice was not given. This concession was made because Madibeng Municipality had alleged that some notice was delivered to the unlawful occupiers by the Sheriff. In my view, the concession was correctly made. It is clear that the provisions of section 4 of PIE were not followed and let alone being considered by the first respondent.

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[19] In Cape Killarney Property Investments ( Pty) Ltd v Mahamba, 6 the SCA made it clear that section 4(1) of PIE makes it clear that the

provisions of the subsection 4(2) that follow are peremptory.

[20] Section 4(2) requires notice of such proceedings to be effected on the

unlawful occupiers and municipality having jurisdiction at least 14 days

before the hearing of these proceedings. Further that the notice must

be effective.

[21] In Unlawful Occupiers, School Site V City of Johannesburg, 7 the

SCA said:

"[23] The purpose of s 4(2) is to afford the respondents in an

application under PIE an additional opportunity, apart from the

opportunity they have already had under the Rules of Court, to put all

the circumstances they allege to be relevant before the court (see

Cape Killarney Property Investments at 1229E-F). The two

subsections of s 4(5) that had not been complied with were (a) and

(c). The object of these two subsection is, in my view, to inform the

respondents of the basis upon which the eviction order is sought so as

to enable them to meet that case. The question is therefore whether,

despite its defects, the s 4(2) notice had, in all the circumstances,

6 7

2001 (4) SA 1222 (SCA) 1227, para 11 2005(4) SA 199 (SCA) 209, paras 23 and 24

See also Moela v Shoniwe 2005 (4) SA 357 (SCA) 361 - 362, paras 6 - 9

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achieved that purpose. With reference to the appellants who all opposed the application and who were at all times represented by

counsel and attorneys, the s 4(2) notice had obviously attained the

Legislature's goal. However, there were also respondents who did not

oppose and who might not have had the benefit of legal representation.

It is with regard to these respondents that the question arises whether

the s 4(2) notice had, despite its deficiencies achieved its purpose: In

considering this question it must be borne mind that, as a result of the

way in which the order of the Court a quo was formulated; it will affect

only those respondents who had been served by the Sheriff with both . the application papers and the notice under s 4(2)."

[22] In terms of section 6(2)(b) of PAJA, failure to comply with a mandatory

and material procedure or condition prescribed by an empowering

procedure is a ground of review. It is trite that review proceedings have

to be brought in terms of the provisions of PAJA.8 Even before PAJA

was enacted, the traditional approach has always been that procedural

requirements and formalities laid down in statutory provisions have to be complied with by the authorities concerned. 9

9

8 See Batho Star Fishing (pty) Ltd v Minister of Environmental Affairs and Others 2004(4) SA 490 (CC) 506, para 25

Sachs v Minister of Justice 1934 AD 11 at 37

See also Strydom v Die land - en landbou van S.A. 1972 (1) 801 (A)

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[23] In Independent Food Processors (Pty) Ltd v Minister of

Agriculture and Others, 10 the court invalidated a marketing scheme

because the Minister had not approved of and signed a notice before

its publication but only thereafter. The question whether a mandatory or material procedure has been complied with, is closely related to the

question whether the procedure followed could nevertheless be said to

have been fair towards the persons affected. This will require the

balancing of a variety of factors in determining whether the procedure adopted was fair.11

[24] I ha ve no doubt that failure to comply with the mandatory provisions of section 4(2) falls within the purview of section 6(2)(b) of PAJA. On this

basis alone, the ·decision of the first respondent is reviewable.

[25] In the result, the following order is made:

[25.1] The order and/or judgment granted in favour of the second respondent

by the first respondent on 17 October 2005 in the magistrates' court for

the district of Brits under case no. 13527/05 is reviewed and set aside;

[25.2] The order and/or judgment granted in favour of the second respondent

by the first respondent on 10 January 2006 in the magistrates' court for

the district of Brits under case no. 13523/05 is reviewed and set aside;

10

11

1993(4) SA 294 (C) 320 F - 321 H

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another 2001 (3) SA 1151 (CC) 1184, para 101

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[25.3] The second respondent to pay the costs occasioned by this

application.

S A NTHAI

ACTING JUDGE OF THE HIGH COURT

For the applicants:

Adv AT Ncogwane

Instructed by the· Legal Resources Centre (Pretoria)

For the second respondent:

Adv R Ramawele

Instructed by Malatji Mahosh & Pooe Attorneys