Drakenstein Municipality v Hendricks and Others

• Jurisdiction: South Africa
• Court: Western Cape High Court, Cape Town
• Judge: Blignault J and Dlodlo J
• Judgment Date: 15 December 2009
• Citation: 2010 (3) SA 248 (WCC)
• Hearing Date: 06 November 2009
• Docket Number: A 254/2009
• Counsel: D Borgström (with M O'Sullivan) for the appellant. T Möller for the respondent in magistrates' court case No 1470/2007.

Blignault J: A

Introduction

[1] This is an appeal from the Wellington Magistrates' Court. It concerns the nature and extent of some of a municipality's obligations in terms of the provisions of the Prevention of Illegal Eviction from and B Unlawful Occupation of Land Act 19 of 1998 (the PIE Act).

[2] The appeal is one of seven similar appeals that were heard together. In each case the Drakenstein Municipality is the appellant. It is a municipality within the meaning of the PIE Act. Each appeal is directed against a judgment of the magistrate in terms of which appellant was C ordered to be joined as a party, to report on and mediate in pending eviction proceedings.

[3] In each of the seven cases the applicant is a private landowner who applied for the eviction of the respondent(s) alleged to be in unlawful occupation of certain premises. The respondent(s) had been in occupation D of the premises for more than six months when the proceedings were initiated. The disputes in question may be described as private-law disputes between individuals:

(1)

In the present matter, Mogadien Hendricks and Others v Sara Hendricks and Another (magistrates' court case No 364/2008), the E dispute is whether rental has been paid in terms of an agreement of lease.

(2)

In Elizabeth Raab v Johanna Samson and Others (magistrates' court case No 100/2008) the dispute concerns the alleged termination of an agreement of lease.

(3)

In Marieka Williams NO and Another v Piet Jacobs and Another F (magistrates' court case No 176/2007) the dispute is whether the property in question had been purchased by the occupier.

(4)

In Die Bestuursraad Arendsnes Straatkinderprojek v Saul Fransman and Another (magistrates' court case No 1068/2008) the respondent had been dismissed from his employment by virtue of which he enjoyed occupation of the premises. G

(5)

In Ivan de Villiers NO v Berenice Cupido (magistrates' court case No 588/2007) the dispute concerns the sale of a property in the course of the winding-up of a deceased estate.

(6)

In Samuel Gertse and Others v Cedric Gertse (magistrates' court case H No 1470/2007) there is a family dispute concerning the alleged donation of the property to the occupier.

(7)

In Omar Pietersen and Another v Zoelfia Pietersen and Others (magistrates' court case No 1555/2007) the defence is that the applicant acquired the property from a person to whom it had been donated in fraud of the occupiers. I

[4] Except for the Omar Pietersen matter (magistrates' court case No 1555/2007), not one of the respondents in the various matters raised the non-availability of alternative land for occupation as a defence in the eviction application. In the Omar Pietersen case the respondent denied the applicant's allegation that it would be easy to obtain alternative J

2010 (3) SA p252

Blignault J

A accommodation. The respondent said that she had been informed that there were not many affordable properties to let in her area. She understood that the municipality's waiting list contained 32 000 names.

Relevant legislation

B [5] The PIE Act falls to be construed against the background of s 26 of the Constitution of the Republic of South Africa, 1996 (the Constitution) which reads as follows:

'(1) Everyone has the right to have access to adequate housing.

(2) The State must take reasonable legislative and other measures, C within its available resources, to achieve the progressive realisation of this right.

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

D [6] The provisions of ss 4 and 7 of the PIE Act apply to the present cases. Subsections 4(1), 4(2), 4(7), 4(8) and 4(9) read as follows:

'4 Eviction of unlawful occupiers

(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 E 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.

. . .

F (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 G 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 H 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 I 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 on the land in question.'

J [7] Subsections 7(1), 7(3) and 7(4) of the PIE Act read as follows:

2010 (3) SA p253

Blignault J

'7 Mediation A

(1) If the municipality in whose area of jurisdiction the land in question is situated is not the owner of the land the municipality may, on the conditions that it may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint B another person to facilitate meetings or mediate a dispute, on the conditions that the municipality may determine.

. . .

(3) Any party may request the municipality to appoint one or more persons in terms of subsections (1) and (2), for the purposes of those subsections. C

(4) A person appointed in terms of subsection (1) or (2) who is not in the full-time service of the State may be paid the remuneration and allowances that may be determined by the body or official who appointed that person for services performed by him or her.'

Appellant's affidavit D

[8] The issue that led to the magistrate's judgment arose in the Hendricks application when the respondents raised a point in limine that the application could not proceed until the municipality (appellant) had complied with its obligations under the PIE Act. The magistrate called upon appellant to provide reasons why it should not provide a report to E the court and mediate in the matter. Appellant then filed an affidavit deposed to by Dr Sidima Kabanyane, its municipal manager, to explain its stance in the matter.

[9] Dr Kabanyana said, inter alia, the following:

'3.

I have been advised and verily believe that upon a proper construction F of the PIE Act the municipality should not be joined as a party to the proceedings in an application by a private person in terms of s 4 of the Act, and that the requirements of the Act prescribe only that a copy of the process instituting eviction proceedings under the Act should be served on the municipality for its notice. I am advised and verily believe that the purpose of the requirement that G a copy of the process be served on a municipality has been considered by the superior courts and has been held to exist so as to enable it to place relevant information before the court with reference to the question whether land has been made available or can reasonably be made available by a municipality or other organ of state or another landowner for the relocation of the unlawful H occupier.

. . .

5.

I am advised and verily believe that the provisions of the Act which contemplate the provision of input by a municipality, whether by way of a report or the provision of mediation services, require a municipality to have regard to the nature of the particular claim I and to determine whether the matter is an appropriate case for the local authority to investigate the provision of alternative land accommodation or land or whether to offer to mediate the dispute. The nature of a local authority's legal interest in eviction cases goes to the State's interest and duty in the provision of basic municipal services as contemplated in terms of the Local Government: J

2010 (3) SA p254

Blignault J

A Municipal System Act 32 of 2000 and the realisation of the basic rights enshrined in sections 25 - 28 of the Constitution. These considerations will not ordinarily arise in matters where the eviction arises out of a breach of contract such as when the unlawful occupier breaches a lease agreement, or fails to vacate premises at the termination of such agreement, or fails to meet B instalments on a mortgage loan. In addition to the fact that there is no or insufficient governmental basis for involvement in most matters of the type mentioned in the preceding sentence, the Drakenstein Municipality is simply not possessed of sufficient resources to involve itself in matters where it appears ex facie the C application papers served...