Coleman and others v Unlawful Occupiers and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Nicholson AJ
• Judgment Date: 14 March 2023
• Docket Number: D5527/2020B
• Hearing Date: 22 February 2023
• Court: KwaZulu-Natal Local Division, Durban

Nicholson AJ:

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[1]

This is an application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('PIE') for the eviction of various households from the property described as Portions 50 and 51 of Reserve 7A, No. 15826, Registration Division FU, Province of KwaZulu-Natal in extent of 40,4686 hectares ('the Property'); together with ancillary relief authorising the Sheriff to assist with the evictions.

[2]

The applicants, by way of title deeds, [1] assert that they either own as little as one sixth, to one half, and as much as complete ownership of either portions 50 or 51 of the Property. Save the second respondent's statement that 'there are unsatisfactory features in the manner in which the Applicants registered the properties in their names', [2] the ownership of the Property by the applicants is not seriously disputed.

[3]

The applicants assert that a group of informal settlers, whom they refer to as unlawful occupiers (the first respondent herein), and the second respondent, Ms Joyce Thandiwe Sibiya, currently occupy the Property illegally. [3]

[4]

Ms Sibiya asserts that she is a 71-year old female and a beneficiary of the Bhekamafa Community Trust ('the Trust') and resides at Ward 3, Mangethe Reserve, Mandeni, KwaZulu-Natal.

[5]

She states further that she deposes to the answering affidavit both in her personal capacity and on behalf of a committee formed by some of the Mangethe community members. She attaches three confirmatory affidavits to confirm same.

[6]

As background she states that in 1976, consistent with the policies of the Apartheid government at the time, she was among several members of the

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Mangethe Community who were dispossessed of their land and relocated. In or about 1993, she and other community members returned to the land where they lodged a land claim which was successful.

[7]

In terms of the claim, the government purchased some properties for the community; however, the process remains incomplete. The Trust was formed and registered to administer the purchased properties on behalf of the community.

[8]

Ms Sibiya further states that the purchased properties are now owned by the Trust and attaches a deeds registry search that shows eight properties that belong to the Trust. [4]

[9]

Ms Sibiya makes further allegations that the Property was acquired in an unsatisfactory manner by the applicants because they were aware that the Property was subject to a land claim which is currently incomplete.

[10]

It is convenient to mention here that in the replying affidavit, the applicants put up the settlement of the alleged land claim which shows that the land claim was settled by way of compensation to the Claimants, and properties outside of Mangethe were purchased for the Claimants and such land remains vacant. In the circumstances, it is apparent that the occupiers of the Property received financial compensation and alternate land, which the second respondent has not disclosed to the court.

[11]

The third respondent, the Mandeni Local Municipality has been cited as an interested party; however, despite being properly served with the application papers, they have not participated in any way in this application.

Legal Framework:

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[12]

Section 25(1) of the Constitution states that '[n]o one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.'

[13]

Section 26(3) of the Constitution provides:

'No one may be evicted from their home, or have their home demolished, without an order of court made after considering all relevant circumstances. No legislation may permit arbitrary evictions.'

[14]

In the matter of Pheko and Others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC), the Constitutional Court affirmed that s 26(3) of the Constitution does not permit legislation authorizing evictions without a court order. The PIE Act reinforced this by providing that a court may not grant an eviction order unless the eviction would be just and equitable in the circumstances.

[15]

In Ndlovu v Ngcobo: Bekker and another v Jika [2002] 4 All SA 384 (SCA) para 11, the Supreme Court of Appeal ('SCA') held that '. . . PIE applies to all unlawful occupiers, irrespective of whether their possession was at an earlier stage lawful.'

[16]

Section 1 of PIE reads:

'. . .

(ii)

"consent" means the express or tacit consent, whether in writing or otherwise, of the owner or person in charge to the occupation by the occupier of the land in question;

. . .

(ix)

"owner" means the registered owner of land, including an organ of state;

(x)

"person in charge" means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question:

(xi)

"unlawful occupier" means 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, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act, 1997, and excluding a person whose informal right to land,

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but for the provisions of this Act, would be protected by the provisions of the Interim Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996).'

[17]

Section 4 of the PIE Act provides that:

'(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.

(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.

. . . .

(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 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.'

(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 for the eviction of the unlawful occupier, and determine: -

'(a)

a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

(b)

the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).'

[18]

In terms of the Sherriff's return of service, the notices [5] in terms of s 4(2) of the PIE Act were served on the first and second respondent at the second respondent's home; on the second respondent personally, and for the first respondent, on an unnamed daughter of the second respondent; and at the

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place of business of the third respondent. However, an answering affidavit has only been filed by the second respondent. There is a dispute as to whether that answering affidavit was filed on behalf the first respondent. I shall return to this point later hereunder.

[19]

I pause here to mention that since it emerges as common cause that the occupiers have been in occupation from as early as the year 1993, which is well over six months since the date that these proceedings were initiated, Consequently, s 4(7) of PIE is applicable.

Abandoned Eviction Order:

[20]

There was a previous eviction order that has since been abandoned, which will become relevant hereinbelow; accordingly, I set out hereunder a brief chronology of the litigation. These facts are either common cause or axiomatic:

(a)

On 6 August 2004, an eviction order [6] was obtained by Daniel Alexander Montague Dunn, for the eviction of Kayalesha Mathaba and other Unlawful Occupiers.

(b)

Between 2004 and 2015, the Sheriff of Mandeni refused to execute the order due to the wording in the order and after being reported to the Sheriff's Board, the Sheriff of Eshowe was allocated to assist.

(c)

On 20 March 2015, the second respondent was granted an urgent interim order [7] to stay the order.

(d)

On 5 December 2017, the interim order was set aside. [8]

(e)

In 2019, the Sheriff of Eshowe refused to execute the order due to the wording in the order. [9]

(f)

In light of the time that had elapsed and the prospect of further unlawful occupiers occupying the Property, on 20 May 2020, the first applicant served

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notices to vacate on the first and second respondent, as a precursor to the current application. [10]

(g)

On or about 14 September 2020 [11] and again on 5 November 2020, [12] the Sheriff served the application papers on the respondents.

(h)

On 8 December 2020, an order was granted in terms of s 4(2) of the PIE Act, authorising service of the notice in terms of s 4(2) and the founding papers on the first and second respondents in terms of the Uniform rules. [13]

(i)

On 25 February 2021, the notices in terms of s 4(2) was...