Vena and Another v George Municipality

• Jurisdiction: South Africa
• Judge: Friedman J
• Judgment Date: 24 June 1987
• Citation: 1987 (4) SA 29 (C)
• Court: Cape Provincial Division

Friedman J:

The applicants are residents of an area at George F known as Lawaaikamp. First applicant, Ellen Nongatini Vena, who is a widow, alleges that she was the occupier of a house at Lawaaikamp, numbered 145, which was destroyed by fire on 13 May 1987. She immediately took steps to have the house rebuilt as it was before the fire. On 20 May 1987 the respondent, which is the Municipality of George, caused the as yet uncompleted G building to be demolished. Second applicant, Edward Vywer, lives in house No 267 Lawaaikamp. He alleges that in 1985 he added a room to his house. Respondent disputes that this addition was made in 1985 and says it was made very recently, namely in May 1987. What is common cause, however, is that on 20 May 1987 respondent demolished this room. Both applicants H have now applied on motion as a matter of urgency for spoliation orders directing respondent to restore their respective houses to the condition in which they were immediately prior to demolition, as well as certain ancillary relief.

There are numerous disputes of fact in the affidavits relating mainly to the legal basis upon which applicants have been occupying their respective houses. Before attempting to resolve I these it is necessary to consider the effect of s 3B of the Prevention of Illegal Squatting Act 52 of 1951 (as amended) (hereinafter referred to as 'the Act'). Section 3B(1)(a) reads as follows:

'(1) Notwithstanding the provisions of any law to the contrary -

(a)

but subject to any law under which he is compelled to J demolish or remove any building or structure, the owner of land may without an order of Court

Friedman J

demolish any building or structure erected or occupied A on the land without his consent, and remove the material from the land.'

Section 3B(4)(a) reads as follows:

'It shall not be competent for any person to ask for any order, judgment or other relief in any civil proceedings of whatever nature in any court that are founded on the demolition or intended demolition or the prevention of the demolition under B this section of any building or structure, or on the removal or intended removal or the prevention of the removal of any material or contents thereof from the land on which the building or structure was or is situated, and it shall not be competent for any court to grant or give such order, judgment or other relief, unless such person first satisfies the court on a balance of probabilities that he has a title or right to the land on which the building or structure was or is situated, C by virtue of which right he may lawfully occupy the land.'

Section 3B(4)(a) places a clog on the jurisdiction of the Court. The first question which arises is whether the Court is, by this section, precluded from entertaining the application. In short, the section renders incompetent proceedings 'founded on the demolition... under this section of any building or structure...' unless the person concerned is able to satisfy D the Court that he falls within the exemption. Respondent contends that applicants have no right to be in Lawaaikamp, that first applicant's house and second applicant's additional room were built without respondent's consent and that respondent was entitled to demolish the house and room respectively, because of the provisions of s 3B(1)(a). As the E demolition in each case purports to have been carried out in terms of that section, the proceedings are founded on a demolition 'under this section'. There is accordingly an onus on each applicant to establish that he has

'a title or right to the land on which the building or structure was or is situated, by virtue of which right he may F lawfully occupy the land'.

If each applicant can establish that he/she has the required right to the land, the next question is whether respondent was nevertheless entitled to carry out the demolition by virtue of s 3B(1)(a). Respondent is the owner of the land in question and it contends that both first applicant's house and second applicant's room were erected without its consent. It furthermore contends that neither applicant has the right to G occupy the house and room respectively, such right having been terminated some time prior to the demolitions. Before considering the effect of s 3B(1)(a), and in particular whether it affords respondent the right of demolition, it is necessary to refer in some detail to the facts and to determine what rights, if any, were enjoyed by applicants at the time of H demolition.

First applicant

First applicant alleges in her founding affidavit that she has lived at Lawaaikamp with her children since 1970. The plot was allocated to first applicant's family but was initially I registered in the name of her sister, Jeanette Moyakhe, by the erstwhile Bantu Administration Board, on the understanding that the family would be allowed to stay there. When the plot was allocated, first applicant built on it a house which consisted of a kitchen, living room and three bedrooms. It was solidly constructed on a cement floor and foundation. About a month after the death of her sister in 1979 she informed respondent J thereof and her name was then 'added to

Friedman J

A the respondent's registration list'. She says that from 1970 to August 1986 she 'regularly paid rent for the plot to the respondent'. Because of the confusion which arose in July 1986 with regard to the future status of Lawaaikamp, respondent wrote off all arrear rentals up to 31 December 1986. After that B date, apparently because of the continued confusion, no rent was collected or paid. She says, however, that on 21 May 1987 she paid her rent for that month and that it was accepted unconditionally. She attaches a receipt issued by respondent on that date for the amount paid, namely R19,08. As indicated above the house was destroyed by fire on 13 May 1987 and the portion that she had rebuilt by 20 May 1987 was demolished by respondent on that date.

C In an answering affidavit respondent's Town Clerk, Mr C P du Plessis, denies that first applicant has lived in Lawaaikamp since 1970. He states that according to respondent's records she was occupying 'plakkerwoning nommer 576'. His affidavit continues as follows:

'Sy het eers op 1 Julie 1986 by respondent as bewoner van D Lawaaikamp geregistreer, soos meer volledig blyk uit 'n dokument wat sy op daardie datum onderteken het, wat hierby aangeheg word gemerk "CPD 1"'. Soos blyk uit die gemelde dokument, het sy op daardie datum 'n bedrag van R103 aan respondent betaal.'

Respondent places a great deal of reliance on the document CPD 1 and it will thus be as well to set it out in full. It reads as follows:

E 'George Munisipaliteit

Registrasie as bewoner van Lawaaikamp

Hiermee word toestemming verleen dat mnr/mev E Vena plakkerwoning nr 576 mag bewoon onderworpe aan die volgende voorwaardes:

1.

Hierdie toestemmingsbrief geld slegs tot 31 Julie 1986 of 'n vroeër datum indien 'n huis in die nuwe Swart woongebied beskikbaar gestel word vir u.

2.

Huurgeld bedra R25 per maand vanaf 1 Junie 1986 en moet maandeliks vooruit (voor die sewende van elke maand) betaal word.

3.

Indien u nog nie voor 31 Julie 1986 'n woning in die nuwe Swart woongebied bekom het nie, moet u weer kom registreer.

G Geliewe daarop te let dat hierdie goedkeuringsbrief onmiddellik ongeldig word die oomblik as een van die voorwaardes nie nagekom word nie.

Die uwe

(get)?

Stadsklerk

H Aanvaarding van Voorwaardes

Hiermee erken ek dat ek die voorwaardes hierbo genoem verstaan en aanvaar.
	(in skrif:
Geteken:	(get) E. Vena	Betaal
Getuies:	1. (get)?	R100-00
		3-00	- Kwit No 7908
	2.	103-00
		Ou Nr 93H/K)
Datum:	60030260119
	1986.07.01'

Friedman J

Mr Du Plessis goes on to state that since 1976 when he became A Town Clerk no permission was given to new occupants ('intrekkers') to establish themselves in Lawaaikamp. Apart from the aforementioned amount of R103 and the amount of R19,08 which was paid on 21 May 1987, respondent has no record of any other payments made by first applicant. He points out that the B amount of R19,08 was paid the day after her half-completed structure had been demolished. At that stage her rental ('huurgeld') had been in arrear since January 1987 and he accordingly denies that this payment was in respect of rental for May 1987. He further denies that the payment was accepted unconditionally. He does not state, however, on what conditions it was accepted, nor are there any conditions on the receipt. C

He admits that in April 1987 respondent agreed to write off all arrear rentals ('huurgelde') up to 31 December 1986 and that respondent sent notices to all residents which notices set out their arrear rentals ('agterstallige huurgeld'). The notice which is dated 13 April 1987 is addressed 'To all residents of D Lawaaikamp', and reads as follows:

'Service Charges

During July 1986, the Council promised the residents of Lawaaikamp that, if they moved to the new township at Sandkraal before 31 December 1986, they would not be held liable for E service charges. Debts were written off for those who did move.

Council is aware that there were people in Lawaaikamp who wanted to move but could not obtain a plot in Sandkraal. For this reason Council has now decided to write off all arrear debts owed by you as at 31 December 1986.

However, Council cannot continue to render services free of charge and you will have to pay for these from I January 1987. Council has, however, decided to reduce service charges to F R19,08 per month. These charges are payable in advance and must be paid at the beginning of...