Drakenstein Municipality v Hendricks and Others

• Jurisdiction: South Africa
• Citation: 2010 (3) SA 248 (WCC)

Drakenstein Municipality v Hendricks and Others
2010 (3) SA 248 (WCC)

2010 (3) SA p248

Citation	2010 (3) SA 248 (WCC)
Case No	A 254/2009
Court	Western Cape High Court, Cape Town
Judge	Blignault J and Dlodlo J
Heard	November 6, 2009
Judgment	December 15, 2009
Counsel	D Borgström (with M O'Sullivan) for the appellant.; T Möller for the respondent in magistrates' court case No 1470/2007.

Flynote : Sleutelwoorde H

Land — Unlawful occupation — Eviction — Statutory eviction — Procedure — Joinder of municipality — Whether municipality to be joined in every application for eviction under PIE — Need for joinder only arising where municipality I having direct interest in proceedings by reason of its duty to report to court or to appoint mediator — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4.

Land — Unlawful occupation — Eviction — Statutory eviction — Duties of municipality — Report to court — Whether municipality required to report to court in J each application for eviction under PIE — Municipality required to react

2010 (3) SA p249

reasonably in fulfilling obligations in terms of PIE — Unreasonable to expect A municipality to embark on costly and time-consuming exercise to investigate matters and report on them in case where such information irrelevant — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4.

Land — Unlawful occupation — Eviction — Statutory eviction — Duties of municipality B — Appointment of mediator — Whether municipality required to appoint mediator in each application for eviction under PIE — Municipality having discretion to appoint mediator — To be exercised in reasonable manner on practical and economic grounds — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 7(1). C

Headnote : Kopnota

The appellant, a municipality, appealed against seven identical judgments handed down in the Wellington Magistrates' Court. Each appeal was directed against a judgment of the magistrate that: (i) the provisions of s 4(2), read with s 4(7), of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) made it clear D that a municipality should be joined as a party in all eviction proceedings in terms of those provisions; (ii) to enable the court to consider all relevant circumstances the municipality had to report in all cases to assist the court in coming to a just and equitable decision; and (iii) a municipality was expected to act as participant in the process of eviction; one of its functions was to assist the court in performing its functions; it would ease the court's E task, she said, if the municipality acted as mediator; the municipality was accordingly ordered to mediate in all seven cases. On appeal,

The joinder of the municipality in all cases

Held, as to (i), that the question of the joinder of the municipality was not an independent issue. The need for joinder would only arise where the F municipality had a direct interest in the proceedings by reason of its duty to report to the court or to appoint a mediator. (Paragraph [21] at 259H.)

Held, further, that not one of the cases cited by the magistrate was therefore authority for the proposition that the municipality had to be joined in all cases, even where reporting to the court or mediation was not required. (Paragraph [25] at 260F.) G

The municipality's obligation to report to the court in all cases

Held, as to (ii), that the municipality had acted responsibly in the matters. It was required to react reasonably in fulfilling its obligations in terms of the PIE Act. The relevant information which a municipality could provide to the court was whether alternative land had been or could be made available for H the relocation of the occupiers. The municipality considered the facts of the present cases and decided that they were not the kind of matters where a report on the making available of alternative land would be relevant. It would be unreasonable to expect the municipality to embark upon a costly and time-consuming exercise to investigate matters and report on them in a case where such information was irrelevant. (Paragraph [27] at \260I - 261B.) I

Held, further, that it was of course ultimately for the court and not for the municipality to decide what was relevant or not. The point, however, was that the court could always call upon the municipality to provide relevant information where it became necessary for a proper decision of a particular case. (Paragraph [28] at 261B - C.) J

2010 (3) SA p250

A Mediation

Held, as to (iii), that it seemed that there was some confusion in the magistrate's approach to the question of mediation. She ordered the municipality to mediate in all the disputes in question. She presumably meant that it should appoint a mediator in terms of s 7(1) of the PIE Act. The difference was material and she seemed to have misunderstood the municipality's stance in B the matter. (Paragraph [35] at 262J - 263A.)

Held, further, that a municipality had a discretion in terms of s 7(1) of the PIE Act to appoint a mediator. In the present cases the municipality exercised its discretion in a reasonable manner on practical and economic grounds. The disputes in question were in any event suitable for determination by a court C of law. In the circumstances appellant could not be compelled to appoint a mediator. (Paragraph [36] at 263B - C.) The appeal succeeded.

Cases Considered

Annotations:

Reported cases

Absa Bank Ltd v Murray and Another 2004 (2) SA 15 (C) (2004 (1) BCLR 10): distinguished D

Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another 2009 (1) SA 470 (W) ([2009] 1 All SA 485): distinguished

Cashbuild (South Africa) (Pty) Ltd v Scott and Others 2007 (1) SA 332 (T): distinguished

Lingwood and Another v Unlawful Occupiers of Erf 9, Highlands 2008 (3) BCLR 325 (W): distinguished E

Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC) (2008 (5) BCLR 475): distinguished

Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others [2009] 4 All SA 410 (SCA): distinguished F

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268): distinguished

Sailing Queen Investments v The Occupants of LA Colleen Court 2008 (6) BCLR 666 (W): G distinguished.

Statutes Considered

Statutes

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4 and 7: see Juta's Statutes of South Africa 2008/9 vol 6 at 3-473 and 3-474. H

Case Information

An appeal from the Wellington Magistrates' Court concerning the nature and extent of some of a municipality's obligations in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

D Borgström (with M O'Sullivan) for the appellant. I

T Möller for the respondent in magistrates' court case No 1470/2007.

Cur adv vult.

Postea (December 15). J

2010 (3) SA p251

Judgment

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...