Occupiers of Ompad Farm v Green Horizon Farm (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Olsen AJ (Moodley J concurring)
• Judgment Date: 23 May 2014
• Docket Number: AR468/2013
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 05 May 2014
• Citation: 2014 JDR 1030 (KZP)

Olsen AJ (Moodley J concurring):

[1]

By notice of motion dated 14 January 2013 Green Horizon Farm (Pty) Ltd launched an application out of the Magistrates' Court for the District of Camperdown seeking an order for the ejectment of 36 respondents (37 names were cited, but 1 featured twice) who were occupying premises on Ompad Farm, Ingomankulu District Road, Camperdown. Ejectment orders were granted in respect of 26 of the respondents, 23 by an order of the learned magistrate made on 27 February 2013, and three by an order he made on 5 March 2013.

[2]

Fourteen applicants have joined forces in an application to this court for an order reviewing and setting aside the ejectment orders granted by the magistrate. They do so upon the basis that there was gross irregularity in the proceedings. The applicants are represented by the first applicant, Ntombifuthi Mbele.

2014 JDR 1030 p2

Olsen AJ (Moodley J concurring):

[3]

Before proceeding further I should mention that there has been something of a muddle as regards parties. I have already mentioned that one occupier was cited twice in the magistrates' court. The seventh and thirteenth applicants before us were not respondents in the magistrates' court. The thirty-seventh respondent in the magistrates' court was listed as a party upon whom service had not been effected, and against whom an ejectment order was accordingly not sought; but one was nevertheless erroneously granted. For the sake of convenience I shall ignore these aberrations, and indeed the fact that not all of the respondents in the magistrates' court who were affected by the ejectment orders feature as applicants before us. It is convenient simply to refer to the respondents in the magistrates' court and the applicants before us as the "Occupiers". (In the heading to the papers before us the applicants are described collectively as "The Occupiers of Ompad Farm").

[4]

The founding affidavit upon which Green Horizon relied in the magistrates' court made the following case.

(a)

Green Horizon had bought Ompad Farm from its former owners, Mr and Mrs Buthelezi in July 2011. It was a suspensive condition of the sale that Mr and Mrs Buthelezi would ensure that the Occupiers vacated Ompad Farm.

(b)

They did not do so, and despite the suspensive condition, the farm was nevertheless transferred to the applicant in November 2011.

(c)

None of the Occupiers who were residing on the property at the time of the sale had been employed by Mr and Mrs Buthelezi (the deponent to the founding affidavit said that he had been informed of this); and they were accordingly classified as illegal occupiers. None of them had since been employed on the farm. Some of them were employed on a neighbouring property.

(d)

As they had failed to vacate the property notwithstanding oral requests made on behalf of Green Horizon that they should do so, each of the Occupiers was served with a letter in November 2012 requiring the occupier to vacate the property by no later than 31 December 2012. The Occupiers did not respond to the letters.

2014 JDR 1030 p3

Olsen AJ (Moodley J concurring):

(e)

Green Horizon was prejudiced as it could not house its own employees. But the principal form of prejudice lay in the fact that Green Horizon wished to sell the property, but a prospective purchaser would not take transfer whilst the Occupiers remained in residence. This had caused Green Horizon financial difficulties. The founding affidavit suggested that in the light of that the case was of an urgent nature.

[5]

These allegations were made in support of a notice of motion which was addressed to the clerk of the court, the Occupiers and the Mkhambathini Municipality. The notice of motion purported to give notice of the fact that an application would be made on 16 January 2013 in terms of sections 4(1) and (2) of the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 1998 ("PIE") for the issue of a rule nisi calling upon all respondents to show cause on 27 February 2013 "why an order in the following terms should not be confirmed". In summary what was sought to be confirmed were orders:

(a)

that any occupier still in residence on 31 January 2013 should be evicted on 31 March 2013;

(b)

that the Occupiers should pay the costs of the application;

(c)

that "this notice" should be served upon the Occupiers; and

(d)

that "this notice" should be served upon the municipality.

[6]

The notice of motion required any occupier intending to oppose the application to notify the applicant's attorneys of that intention on or before 30 January 2013, and to deliver any answering affidavits within ten (10) days of such notice. It indicated further that if no such notice of intention to oppose be given, the application would be made on 27 February 2013.

[7]

The form of notice of motion employed was a mixture of a standard long form of notice of motion and the short form usually employed when a rule nisi is legitimately sought as a means of initiating proceedings.

[8]

By way of acknowledgement of the requirements of PIE, the notice of motion was endorsed further as follows:

2014 JDR 1030 p4

Olsen AJ (Moodley J concurring):

"The Respondents are hereby informed that: -

1.

The Application is brought on the grounds that the Respondents are in unlawful occupation of the premises situated at Ompad Farm, Ngomakulu District Road, Camperdown, KwaZulu-Natal;

2.

The Respondents are entitled to appear before the above honourable Court on the 27th day of February 2013 at 09h00 or so soon thereafter as the matter may be heard to oppose the proceedings;

3.

They have the right to apply for legal aid in opposing the proceedings;

4.

The Respondents are entitled to present before this honourable Court all relevant circumstances (including the rights and needs for the elderly, children, disabled persons and households headed by women as set out in Section 4(6) of the Act to show why an order for the eviction of the Respondents should not be granted and, in this regard the Respondents bear the onus of proof);

5.

The grounds for the ejectment/eviction of the Respondents is that the Respondents are in unlawful occupation of the Plaintiff's property details of which are fully set forth in the affidavit of JOHN ALLAN LEWIS annexed hereto;

6.

The Applicant has suffered and will continue to suffer prejudice and damage as a result of the Respondents unlawful occupation of the Applicant's property."

[9]

On 16th January 2013, and without any notice having been given to the Occupiers or the municipality, and at the request of Green Horizon, the magistrate granted the rule nisi as prayed.

[10]

There was then an attempt at service on the Occupiers, a subject to which I will revert. On 27th February 2013 only three occupiers were present at court. They were the first, twelfth and fourteenth applicants before us. (The first applicant has attested to the principal founding and replying affidavits in the application before us).

[11]

On 27 February 2013 the rule nisi was "confirmed" in respect of those Occupiers who were held to have been served, and who had not put in an

2014 JDR 1030 p5

Olsen AJ (Moodley J concurring):

appearance at court. The three occupiers who had put in an appearance were, according to the magistrate's record, "referred to Legal Aid – Pinetown if they wish to oppose". As far as they were concerned the matter was adjourned to 5th March 2013 "for Legal Aid". Those three occupiers failed to repeat their appearance on 5th March 2013, and in the result ejectment orders were granted against them on that day.

[12]

A little more clarity regarding how these events unfolded can be obtained from the first applicant's founding and replying affidavits in this application, and from certain comments made by the learned magistrate when providing his reasons for the decisions which he made. The first applicant explains that the Occupiers approached the Department of Rural Development and Land Reform during January 2013 as a result of their receipt of the letters which had required them to vacate by 31st December 2012. They were informed that the department was unable to render assistance at that time and that they should return on a later non-specified date. Some of the Occupiers then received what the first applicant calls the "eviction papers". Some of the Occupiers received these papers on the 8th February 2013 and others on the 11th. The first applicant confirms that the three of...