City of Ekurhuleni Metropolitan Municipality v The unknown individuals trespassing and/or attempting to invade and or settle on the immoveable property described as Farm Riet-Fontein 153 (and also known as Palm Ridge Extensions 10, 18 to 30)
| Jurisdiction | South Africa |
| Judge | Spilg J |
| Judgment Date | 22 August 2019 |
| Citation | 2019 JDR 1672 (GJ) |
| Docket Number | 2019/25865 |
| Court | Gauteng Local Division, Johannesburg |
Spilg J:
INTRODUCTION:
On 24 July 2019 the City of Ekurhuleni Metropolitan Municipality ("the Metro") brought an urgent application without notice for the issue of a rule nisi to operate with immediate effect. It sought orders against the first respondent or "any other interested person/s or group/s";
interdicting them from "trespassing, invading, marking the structures and or settling on the complete or incomplete houses, slaps and vacant land" on the Farm Rietfontein 153 (the Development)
interdicting them from intimidating, harassing, provoking or insulting the third to seventh respondents who are building contractors engaged at the Development to construct in total some 5670 houses of which 670 are earmarked for military veterans
directing the removal of heir markings on the houses and slaps and requiring them to remove their movable property from the sites, failing which the sheriff would be entitled to do so;
The Metro was unaware of the identities of those who were attempting to occupy the Development and therefore;
cited them as "The Unknown Individuals Trespassing and/or Attempting to Invade and/or Settle on the Immoveable Property described as Farm Rietfontein 153 (and also known as Palm Ridge Extensions 10, 18 to 30)".
I will refer to them as the affected persons
sought an additional order in line with the procedure identified by the full court in Mtshali and others v Masawi and others 2017 (4) SA 632 (GJ) at para 201, requiring those who intended opposing the application to identify themselves by name and physical address;
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The applicant also sought an order which would automatically result in the joinder of any person who so identified himself or herself.
In addition the Metro applied for an order directing the South African Police Services at Eden Park and the City of Ekurhuleni Metropolitan Police Department in Germiston (SAPS and EMPD) to prevent the first respondents from trespassing, attempting to invade, settle on, mark or take occupation of any of the structures or vacant land on the Development.
THE METRO'S CASE
The Metro relies on its rights of ownership and contends that all those who attempted to invade the Development were thwarted.
The facts relied on to support the application are straight forward: In fulfilling its constitutional obligation under s 26 to provide adequate housing for people within its jurisdiction the Metro bought and took transfer of the land on which the Development is situated. It then proceeded to establish a township and contractors were appointed for both the civil works and to construct RDP houses. [1]
The Metro had also identified the beneficiaries entitled to qualify for housing in the development. They are members of a group referred to in the papers as the Palm Ridge Community "and other people who have been identified to qualify for the government grant and have passed the means test."
In addition there are a number of families, up to a maximum of 50, who are entitled to be relocated to the Development in terms of a Land Claims Court order granted on 16 April 2018.
By 22 July 2019, of the intended 6000 homes some 1900, in varying degrees of completion, had been built. Moreover agreements had been concluded with the
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first group of beneficiaries in terms of which they would be given occupation by mid-August 2019
The applicant avers that on the previous day, 21 July, members of the Palm Ridge Community advised the Metro's senior officials that unknown people were attempting to occupy the area and the structures, marking some of the homes with their names. Photographs attached to the papers show the names of individuals scrawled on the walls of the houses they intended appropriating.
The applicant also alleged that Palm Ridge community members intended to counter any attempt to invade the development by guarding homes and making their own marks on the walls.
The founding affidavit then described how the contractors were being constantly harassed and unable to carry out their work. It mentioned that criminal charges had been laid. The papers also revealed that the intervention of both SAPS and the EMPD had been sought in order to stabilise the situation and enable constructive engagement between the community and those seeking to invade the land.
INTERIM ORDER:
Based on the disclosed facts this was a clear case for granting urgent interim relief. The rule was to operate with immediate effect and any person or group of persons who failed to comply with the order was to show cause on 1 August why they should not be held in contempt of court. Once again the court was conscious of the rationale for identifying those subject to the order and in requiring individuals who intended challenging the order to identify themselves.
SUBSEQUENT EVENTS:
By 1 August Mamane Attorneys had placed themselves on record as
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representing the intended occupiers. However they needed an opportunity to prepare papers and to comply with that part of the order requiring the individual identification of those who opposed the application. The rule was extended to 14 August and Mamane Attorneys were ordered to properly identify the members of the cited first respondent who they represented.
On 14 August Adv Sithole who represented the Metro advised that Mamane had withdrawn as attorneys and in their notice identified the Legal Resources Centre as the first respondent's new attorneys. The court was filled with individuals who identified themselves as part of the first respondent while many more were outside the court entrance. However there was no legal representative in court appearing on their behalf.
Adv Sithole quite properly contacted Attorney Nel of the LRC who he understood was dealing with the matter on behalf of those who were in court. In order to ensure that there was no unnecessary delay I spoke to her in the presence of all those in court. Atty. Nel indicated that at that stage the LRC was considering its position and that the first respondent was contemplating bringing its own substantive application against the Metro.
This raised two concerns. Firstly, it appeared that two parallel processes were being contemplated before different courts. This suggested that those wishing to oppose the present...
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