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IN THE LAND CLAIMS COURT OF SOUTH AFRICA
RANDBURG CASE NUMBER : LCC143R06
In Chambers: Gildenhuys J MAGISTRATE’S COURT NUMBER: 1316/06
Decided on 14 November 2006
In the matter between :
ALZU ONDERNEMINGS (PTY) LTD First Applicant STATUTES TRADING (PROPRIETARY) LTD Second Applicant
and
WINDVOёL MBALEKA MABENA Respondent
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
GILDENHUYS J :
[1] This matter comes before me on automatic review in terms of section 19(3) of the Extension of Security of Tenure Act No 62 of 1997 (“the Act”).
[2] To avoid confusion, I will refer to the parties by name.
[3] Alzu Ondernemings (Pty) Ltd (“Alzu”) applied by notice of motion dated 2 March 2006 in the Middelburg Magistrates’ Court for the eviction of Windvo ёl Mbaleka Mabena (“Mabena”) from portion 4 (a portion of portion 1) of the farm Kleinfontein No 432, registration division JS, Province of Mpumalanga (“the Farm”). The application was brought in terms of the Act.
[4] Nowhere in the founding papers did Alzu set out on what basis it claims to have locus standi to apply for the eviction of Mabena. The Farm is not owned by Alzu, but by Statutis Trading (Pty) Ltd (“Statutis”), which is an associated company.
[5] An attorney, Mr V S Ngomane, entered an appearance to defend on behalf of Mabena on 7 June 2006. No answering affidavit was delivered.
[6] The matter was first set down for hearing on 30 June 2006. After six postponements, the matter came before the magistrate on 1 September 2006. The minute which the magistrate kept of the proceedings on that date reads as follows :
“Mnr Ngomane : Ek het geen instruksies gekry nie, ek sal vesoek om te onttrek.
Hof verskoon Mnr Ngomane.
Mnr Venter versoek dat aansoek toegestaan word. Wil vra dat u in oorweging van aansoek in aanmerking sal neem dat proefbeampte se verklaring nie beёdig is nie en dus nie voor hof is nie. As hof wil dat uitklaring regverdig, sal ek versoek dat onder eed getuig. Sal versoek dat hof aansoek sal toestaan. Feit dat respondent nie hier is nie en nie prokureur instruksies gee nie, dat hy nie ernstig is oor aansoek nie.
Hof oorweeg aansoek.
Versoek 1) Bewys dat eiendom behoort aan Alzu Ondernemings. Volgens Akte is eienaar Statutis Trading (Eiendoms) Beperk.
Uitgestel 8/9/06 vir bogemelde bewys.”
[7] By notice of motion dated 8 September 2006 Alzu thereupon applied for an order as follows :
“1. STATUTIS TRADING (PROPRIETARY) LTD gevoeg word as TWEEDE APPLIKANT in bogenoemde aksie.
2. Verlof aan Applikant verleen word om die pleitstukke sodanig te wysig om die gemelde voeging aan te toon;
3. . . .
4. Kennis aan die Respondent gegee sal word per geregistreerde pos;”
[8] A copy of the notice of the application was allegedly sent to Mabena on 8 September 2006 by registered post, to a communal post office box which is available to all the workers on the Farm. However, the supporting affidavit was sworn to only on 11 September 2006, and could therefore not have been sent to Mabena on 8 September 2006.
[9] Mr Engelbrecht, a unit manager of Alzu, swore to an affidavit on 3 October 2006, wherein he says
“Sover my kennis strek, is die geregistreerde strokie wel aan die Respondent in die aansoek oorhandig, en verneem ek ook dat die geregistreerde posstuk nie onafgehaal teruggekom het na die versender Mnre. Birman, Boshoff en du Plessis nie.”
[ 10] The allegation is hearsay. Mr Engelbrecht did not disclose the source of his information. No reason was given why no affidavit was filed by the attorney who sent the notice. The magistrate should not have accepted that notice of the full joinder application was properly given to Mabena.
[11] The prayers contained in the joinder application are curious. There are no pleadings to be amended. The “kennis” to be given to Mabena in terms of prayer 3 is probably intended to be notice of the amended pleadings (an amended notice of motion and a supplementary founding affidavit would have been more correct).
[12] It does not appear from the record whether or not the joinder application was ever granted. If it was granted, it does not appear from the record whether or not any amended papers (as distinct from the application to join) was ever served on Mabena. Nor does it appear from the record that Mabena was ever informed when the application as amended (if it was amended) would be heard.
[13] The minutes of a hearing on 5 October 2006 reads as follows :
“Aansoek om uitsetting (ESTA).
Mnr Venter versoek weer die hof om op stukke uitspraak te gee. Handig beёdigde verklaring in met betrekking tot betekening van posstukke aan werkers op die plaas.
Na oorweging van die aansoek word dit toegestaan. Datum bepaal 30/11/06 waarop die respondent die eiendom moet verlaat. Indien dit nie gedoen word nie, het Geregsbode magtiging om persone op perseel te verwyder na 30/11/06.
Outomaties hersienbaar.”
[14] In my view, Mabena did not receive full and proper notice of the proceedings at which the above order was made.
[15] Under section 17(4) of the Act, the rules of procedure applicable in applications in a High Court apply mutatis mutandis in respect of any applications to a magistrate’s court in terms of the Act. Rule 16(4) of the Uniform Rules of the High Court sets forth requirements to be complied with by an attorney who ceases to act for a party. His withdrawal must be in writing, and the notice of withdrawal must be given to the party for whom he acted previously.
[16] The Act is social interest legislation. It protects an occupier’s constitutional right to security of tenure under section 25(6) of the Constitution (Act 108 of 1996). An occupier is entitled to a fair trial before he can be evicted. See Nkuzi Development Association v Government of the RSA 2006 (2) SA 733 (LCC) at 735H-736B. An occupier who was legally represented will not have a fair trial if he was not timeously informed of the withdrawal of his attorney nor of the date of the trial at which he will have to fend for himself. Judicial officers have a duty to ensure (as far as possible) that occupiers against whom an eviction application is pending, are aware of their rights and how to exercise them. See the Nkuzi judgment (supra), at 737 A/B. Unfortunately, that did not seem to have happened in this case.
[17] Alzu motivated the application to join Statutis by stating that Statutis has a “regmatige belang in die aansoek”. Nowhere in the papers is there a prayer by Statutis for the eviction of Mabena. The prayer is by Alzu. Alzu does not have the requisite locus standi.
[18] Section 9(2)(a) of the Act requires that Mabena’s right of residence be terminated before an eviction order can be granted. Alzu relies on the following sentence in an “afdankingsbrief” given to Mabena by Alzu for the termination of the right of residence :
“U word hiermee kennis gegee om die huis te ontruim binne 90 dae vanaf datum van ondertekening van hierdie dokument”
That sentence does not bring about the termination of Mabena’s right of residence. It is a demand that Mabena must vacate the house, which Mabena is entitled to ignore for as long as his right of residence remains intact.
[19] Lastly, the Act requires in section 9(2)(d) that written notices be given by the owner or person in charge to Mabena, the Municipality and the Department to Land Affairs of its intention to obtain an eviction order. The notices in this case were given on behalf of Alzu. Alzu is not the owner of the farm. It was also not shown that Alzu is the “person in charge” . The term “person in charge” is defined in section 1(1) of the Act as meaning :
“… a person who at the time of the relevant act, omission or conduct had or has legal authority to give consent to a person to reside on the land in question;”
It follows that the section 9(2)(d) notices are deficient.
[20] For the reasons set forth above, the Magistrate’s eviction order cannot stand. The Order made on 5 October 2006 is hereby set aside in full.
________________
A GILDENHUYS
JUDGE : LAND CLAIMS COURT
Appearances in Magistrate’s Court :
For the applicant :
Mr B Venter of Birman, Boshoff & Du Plessis Attorneys, Middelburg
For the respondent :
In person
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