Tedstone Flats CC and others v Maple View Investments (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ncube J
• Judgment Date: 16 March 2023
• Citation: 2023 JDR 0889 (LCC)
• Hearing Date: 16 March 2023
• Docket Number: LCC209/2021
• Court: Land Claims Court

Ncube J:

Introduction:

[1]

This is an interim urgent application. The applicants seek relief in the following terms: -

"1.

Condoning the applicants' non-compliance with the ordinary rules pertaining to service and filling and time lines for delivery of documents and that this application be heard as a matter of urgency;

2.

The relocation of the Fourth to One Hundred and Twenty Seventh Respondents ("the evictees") to Erf 326 Tedstoneville, Germiston, by the third respondent in terms of the Court Order dated 05 March 2020 issued by the Honorable Justice Ncube and the Directives dated 23 September 2021 issued in terms of Rule 37 of the Land Claims Court Rules be stayed and the third respondent be interdicted against carrying out the said relocation pending the finalization of the applicants' application to Review the Third Respondent's decision to relocate the evictees to Erf 326 Tedstoneville, Germiston ("the Tedstoneville Land");

3.

The third respondent is ordered to immediately cease with and desist from all works to prepare the Tedstoneville Land for occupation pending the finalisation of the applicants' application to Review the Third Respondents' decision to relocate the evictees to Erf 326 Tedstoneville, Germiston ("the Tedstoneville Land");

4.

The Applicants are directed to lodge their review application mentioned in prayer 3 above within 35 (Thirty-five) calendar days of the date of the granting of these orders failing which the stay granted in terms hereof is lifted;

5.

The third respondent is ordered to deliver to the applicants' attorney a comprehensive and complete report detailing the extent of the community engagement conducted with all persons in Tedstoneville area within 14 (Fourteen) days of the date of this order;

2023 JDR 0889 p3

Ncube J

6.

The third respondent is ordered to furnish to the applicants' attorney a full report within 14 (Fourteen) days of the date of the grant of this order in which it details its long term plans, including budget, for the housing of the Fourth-One Hundred and Twenty Seventh respondents, in view of the fact that the third respondent has stated on record that the relocation of the evictees to the Tedstoneville Land is only temporary;

7.

The third respondent is ordered to file at court and deliver to the applicants' attorney within 14 (Fourteen) days hereof a comprehensive statement detailing the income levels of the Fourth-One Hundred and Twenty Seventh respondents;

8.

The third respondent is ordered to file and deliver to the applicants' attorney within 14 (Fourteen) days of the date of this order, comprehensive information relating to the costs per shack to be built and serviced by the third respondent on the Tedstoneville Land;

9.

The costs of this urgent application shall be reserved for determination at the outcome of the applicants' Review application, alternatively the costs of this urgent application be paid by only those respondents who oppose the relief sought in this Notice of Motion jointly and severally, the one paying the others to be absolved; and

10.

Further/alternative relief."

The first and third respondents oppose this application.

Background Facts:

[2]

The fourth to twenty seventh respondents ("occupier respondents") reside at 114 EP Malan Road, Pamona Agriculture, Holdings, Kempton Park ("the property"). The property is owned by the, First Respondent herein. Most of the occupier respondents arrived at the property in 1999. They found a house and outside buildings.

2023 JDR 0889 p4

Ncube J

The property was vacant. The occupier respondents built shacks for the occupation by their families on the property. The property is 2,022 hectares in extent.

[3]

The first respondent purchased the property in 2001. There were four buildings on it. The property was to be used for commercial purposes. Mr Neville Bester ("Mr Bester") is the sole shareholder and director of the First respondent. Mr Bester, also owns other two properties situated at 304 and 305 Miradel Street, Pamona, Kempton Park ("Miradel Street property"). Mr Bester purchased the Miradel Street Property in 2001 through a Close Corporation known as Miradel Street Investments CC.

[4]

When Mr Bester purchased the Miradel Street Property, the main house and outside building were leased out to certain individuals and he decided to continue with those lease agreements. 304 was rented to Mr Mahlangu and 305 was rented to Mr Slepe. Mr Mahlangu and Mr Slepe in turn, sub-let the rooms to other people. In October 2006, Mr Bester terminated the lease agreements with Mr Mahlangu and Mr Slepe who in turn had to terminate the sub-lease agreements with their sub-tenants. Mr Bester involved the Department of Land Affairs, ("the Department"), so that the Department could find alternative accommodation for the occupiers.

[5]

As no alternative accommodation was secured for the occupiers, Mr Bester offered his Malan Road property to the occupier respondents as alternative accommodation. He signed lease agreements in terms of which the occupier respondents were going to stay on that property free of charge for a period of twelve (12) months, to be extended for another six (6) months by agreement between the parties. The occupier respondents then relocated to the property in terms of that lease

2023 JDR 0889 p5

Ncube J

agreement on 01 March 2007. When the period of twelve months expired, the occupier respondents did not vacate the property. There was no agreement to extend the lease for another six (6) months.

[6]

Following upon the refusal of the occupier respondents to vacate the property, the first respondent moved an eviction application at the South Gauteng High Court. That application was in terms of the Prevention of Illegal Eviction from, and Unlawful occupation of Land Act, Act 19 of 1998 ("PIE"). The application was dismissed on the basis that ESTA and not PIE was applicable. On 01 March 2016, Mr Bester took an aerial photograph of the property which showed that there were about twenty (20) informal units on the property.

[7]

On 21 January 2015 and again on 13 May 2016, Mr Bester's Attorneys wrote to the occupier respondents advising them of the termination of their right to reside on the property. Despite the termination of the right to reside, the occupier respondents did...