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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:

1. Case Number: 845/2002; 1239/2005; 367/2005; 1333/2006

2. High Court: Mthatha

3. DATE HEARD: 19 November 2009

DATE DELIVERED: 10 December 2009

JUDGE(S): Chetty, Van Zyl and Schoeman JJ

LEGAL REPRESENTATIVES –

Appearances in 845/2005 and 367/2005

1. for the Appellant(s): Adv V.M Maleka SC; Adv T.H Melane and Adv Bukaba

2. for the 1^st Respondent(s): Adv P.A.C Rowan SC

3. for the 4^th Respondent(s) Adv S.M Benenge SC

Appearances in 1239/2005

1. for the Appellant: Adv P.A.C Rowan SC

2. for the 3^rd and 7^th Respondent(s) Adv S.M Benenge SC

CASE INFORMATION -

3. Nature of proceedings: Appeal

4. Topic:

Key Words: Land – Unlawful occupation – eviction from – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) – Application for eviction by organ of state, municipality brought in terms of s 4 instead of s 6 and determined in terms of s 4 – Fundamental difference between two sections – considerations of justice and equity more extensive when eviction sought by organ of state – Eviction ordered without regard being had to s 6 (3) requisites – Clear misdirection warranting setting aside of eviction order - Practice – Rule 49 (2) (a) late filing of – Notice of Appeal – No Condonation sought – Appeal lapsing – No Application for re-instatement – Three separate notices of Appeal filed – No Compliance with sub- rule (3) – Appeal struck from roll with costs

Costs – Award of costs de bonis propriis – When ordered – Circumstances under which attorney ordered to pay such costs – Frivolous application designed to harass opposition – Order granted

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, MTHATHA)

Case No: 845/2002

In the matter between:

MZOLI DIKO First Appellant /

Respondent in Cross-Appeal

L.L.L STOFILE Second Appellant

And

UMZIMVUBU MUNICIPALITY Respondent /

Appellant in Cross-Appeal

And further Respondents

THE MINISTER OF LAND AFFAIRS 3^rd Respondent

THE MINISTER OF HOUSING 4^th Respondent

THE CHIEF LAND CLAIMS COMMISSIONER 5^th Respondent

THE MEC FOR LOCAL GOVERNMENT HOUSING

AND TRADITIONAL AFFAIRS 6^th Respondent

THE MEC FOR ARGRICULTURE AND LAND

ADMINISTRATION 7^th Respondent

AND

Case No 1239/2005

In the matter between:

UMZIMVUBU MUNICIPALITY Appellant

And

CERTAIN FURTHER OCCUPIERS OF THE IMMOVABLE

PROPERTY KNOWN AS REMAINDER OF ERF 351

MOUNT FRERE SOUTHERN SIDE NEAR RESERVOIR Respondents

And further Respondents

THE MINISTER OF LAND AFFAIRS 3^rd Respondent

THE MINISTER OF HOUSING 4^th Respondent

THE CHIEF LAND CLAIMS COMMISSIONER 5^th Respondent

THE MEC FOR LOCAL GOVERNMENT HOUSING

AND TRADITIONAL AFFAIRS 6^th Respondent

THE MEC FOR ARGRICULTURE AND LAND

ADMINISTRATION 7^th Respondent

AND

Case No: 367/2005

Case No: 1333/2006

In the matter between:

ZIBONELE MDANI 1^st Appellant

LUNGISILE LESLIE LOYISO STOFILE 2^nd Appellant

In re:

BAPHATHE FANA MAKAULA 1^st Applicant

ZIBONELE MDANI 2^nd Applicant

And

UMZIMVUBU MINICIPALITY 1^st Respondent

THE MINISTER OF LAND AFFAIRS 2^nd Respondent

THE MINISTER OF HOUSING 3^rd Respondent

THE CHIEF LAND CLAIMS COMMISSIONER 4^th Respondent

THE MEC FOR LOCAL GOVERNMENT HOUSING

AND TRADITIONAL AFFAIRS 5^th Respondent

THE MEC FOR ARGRICULTURE AND LAND

ADMINISTRATION 6^th Respondent

Coram: Chetty, Van Zyl and Schoeman JJ

Date Heard: 19 November 2009

Date Delivered:

Summary: Land – Unlawful occupation – eviction from – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) – Application for eviction by organ of state, municipality brought in terms of s 4 instead of s 6 and determined in terms of s 4 – Fundamental difference between two sections – considerations of justice and equity more extensive when eviction sought by organ of state – Eviction ordered without regard being had to s 6 (3) requisites – Clear misdirection warranting setting aside of eviction order - Practice – Rule 49 (2) (a) late filing of – Notice of Appeal – No Condonation sought – Appeal lapsing – No Application for re-instatement – Three separate notices of Appeal filed – No Compliance with sub-rule (3) – Appeal struck from roll with costs

Costs – Award of costs de bonis propriis – When ordered – Circumstances under which attorney ordered to pay such costs – Frivolous application designed to harass opposition – Order granted

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JUDGMENT

________________________________________________________________

CHETTY, J

[1] This judgment is a composite one dealing with the appeals in case numbers 845/2002, 1239/2005 and 367/2005. The latter appeal acquired a further case number, 1333/2006, during its passage through the court below but in this judgment I shall refer to it merely as 367 and the others simply as 845 and 1239. There is a common thread linking the three appeals and it is apposite to commence by providing a succinct synopsis of litigation which has endured for the last seven years. 845 spawned 1239 and 367. In 845 the Umzimvubu Municipality (the municipality), as the applicant, sought the eviction of respondents identified in the application merely as certain occupiers of the immovable property known as the remainder of erf 351 Mount Frere. The notice of motion described the application as being one in terms of s 4 (2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act¹ which has colloquially acquired the acronym, PIE.

[2] As enjoined by the provisions of s 4 of PIE and as a precursor to the order for eviction the municipality sought an order that notice of the proceedings be served on the respondents. The order was duly granted and service effected on the occupiers of erf 351. The notice advised those served with the notice that the order for eviction would be sought on 13 December 2002. On the latter date none of those persons served with the notices appeared and the order for eviction was granted but subsequently, at a much later date, rescinded by agreement between the municipality and four of the occupants of erf 351 viz. Messrs Mzoli Diko (Diko) and Malimakwe Nompumza (Nompumza), the appellants in 845². I shall in due course elaborate on the grounds relied upon for resisting the order for eviction, suffice it at this juncture merely to emphasize that both appellants denied being unlawful occupiers, Diko alleged that the erf on which he had erected a six-bedroomed brick and mortar dwelling had been allocated to him by the headman of Mvusi village, one, Chief Makaula (Makaula) and sub-headman Mdani (Mdani). The other occupiers who deposed to confirmatory affidavits made similar allegations and so too, as corroborative evidence, one Samuel Similo Jafta, who described himself as a “principal magistrate of Flagstaff”. After various preliminary skirmishes and unnecessary interlocutory applications, the applications for eviction in 845 and 1239 came before Pakade J who, after hearing argument, reserved judgment. On 17 May 2007 judgment was delivered and orders were issued in the following terms –

“A: ORDER UNDER CASE NO.: 845/2002

1. That the 1^st and 2^nd respondents, being MZOLI DIKO and REGINA MAGUSHA MALIMAKWE NOMPUMZA, presently occupying the immovable property described as “Remainder of Erf 351 Mount Frere Transitional Local Council, District of Kwa-Bhaca, Province of the Eastern Cape”, depicted on the attached Survey Diagram No.9244/1955 (annexure “A” hereto) as “House F” (1^st respondent) and “House “H” (2^nd respondent),

BE AND ARE HEREBY ORDERED:

1. to vacate the property;

2. to demolish and remove all buildings and structures which they occupy on the property;

2. That the Applicant provide alternative accommodation for occupation by the 1^st and 2^nd respondents and that the 3^rd and 7^th respondents ensure that such alternative accommodation is available for occupation of the said respondents.

3. That in the event of the 1^st and 2^nd respondents failing to comply with the provisions of sub-paragraph 1.1 and 1.2 above, within six (6) months from the date the alternative accommodation becomes available to them, the Sheriff is directed:

1. to evict the respondents from the property;

2. to demolish and remove the buildings and structures occupied by such respondents on the property.

4. That the Order in paragraph 1 above is suspended pending compliance by the Applicant, the 3^rd and 7^th respondents with paragraph 2 of the Order.

5. That the costs of this application and the application for rescission are reserved.

B: ORDER UNDER CASE NO.: 1239/2005

1. That those persons presently occupying the immovable property described as:

“Remainder of Erf 351 Mount Frere, Mount Frere Transitional Local Council, District of Kwa-Bhaca, Province of the Eastern Cape”

on the southern side of Mount Frere near the reservoir and within the area depicted as “WXYZ” in the attached Survey Diagram marked “A” (“the Further Occupier respondents”)

BE AND ARE HEREBY ORDERED:

1. to vacate the property;

2. to demolish and remove all buildings and structures which they occupy on the property;

2. That the Applicant provide alternative accommodation for occupation by Further Occupier Respondents and that the 3^rd and 7^th respondents ensure that alternative accommodation is available for occupation by those respondents;

3. That in the event of the said Further Occupier Respondents failing to comply with the provisions of sub-paragraph 1.1 and 1.2 above within six (6) months from the date alternative accommodation becomes available to them, the Sheriff be and is hereby directed:

1. to evict the Further Occupier Respondents from the property;

2. to demolish and remove all buildings and structures within the area depicted as “WXYZ” in the attached Survey Diagram marked “A”; and further, is hereby authorised, in the event of it being necessary, to call on the South African Police Services to render her such assistance as may be necessary for the implementation of the provisions of paragraphs 3.1 and 3.2 above.

4. That the Order in paragraph 1 above is suspended pending compliance by the Applicant, 3^rd and 7^th respondents with paragraph 2 of the Order;

5. . . .”

[3] It is common cause that both Makaula and Mdani lacked the requisite authority to permit persons to occupy and erect dwellings on erf 351 and the municipality in due course instituted proceedings and interdicted them from allocating land to would be occupiers. Aggrieved thereby Makaula and Mdani instituted proceedings, 367, in which they sought rescission of the interdict pursuant to the provisions of Rule 42 (1) (a) of the Uniform Rules of Court. In the course of his judgment Pakade J referred to his earlier judgment in 845 and 1239, which had by then already been delivered, and held that Makaula and Mdani had illegally allocated it to the appellants in 845 and to the respondents in 1239. The learned judge dismissed the application for rescission and ordered Makaula and Mdani to pay the costs on the scale as between attorney and client “jointly and severally with Mr. L.L.L Stofile of L.L.L Stofile and Co. but such costs to be paid by L.L.L Stofile de bonis propriis”. It is common cause that Mr. L.L.L Stofile (Stofile) was the attorney for the respondents in 845 and 1239 and the applicants in 367.

[4] Applications for leave to appeal against the judgments in 845, 1239 and 367 were duly filed by Stofile and eventually came before Pakade J on 11 December 2007. The notice of application for leave to appeal amounted to thirty pages of gobbledegook³. Instead of striking the matter from the roll for wont of compliance with the rules, the judge dismissed the applications with costs but granted the applicants “leave to re-apply, if so advised, for leave to appeal against the judgment” in 845 and 1239. Subsequently, and at the hearing on 4 February 2008, the judge granted the applicants Diko and Stofile leave to appeal in 845, the municipality (as applicant) leave to appeal in 1239 and to cross-appeal in 845, but dismissed the application for leave to appeal sought by Mdani and Stofile in 367.

[5] Leave to appeal was consequently sought by the latter persons from the President of the Supreme Court of Appeal on petition and although they were cited as the first and second appellants leave to appeal was only sought by Stofile against the punitive costs order awarded against him. The Supreme Court of Appeal (per Streicher and Ponnan JJA) granted Stofile leave to appeal to the full court, ordered that the respondent’s (the municipality) costs in respect of the petition for leave to appeal to be costs in the appeal but made no order in respect of Mdani and Stofile’s costs pertaining to the petition for leave to appeal “due to the state of the papers filed in this court and served on the respondent”. The order aforesaid was made on 13 June 2008. In the next and succeeding paragraphs of

this judgment relative to 367 I shall refer to Stofile as the applicant as per the citation but before I do so, it is necessary for the sake of completeness to state the following –

[6] When the matters were called at the hearing of the appeals, Mr. Maleka appeared together with Mr. ­­­­­­­­­Bukaba and Mr. Melane on behalf of the first appellant in 845 but intimated that he held no instructions to act on behalf of the second appellant and held no instructions to act on behalf of any of the respondents in 1239. The exact number of respondents in 1239 and who were cited as “certain further occupiers of immovable property known as remainder of erf 351 Mount Frere Southern Side near reservoir,” was never established but I was informed by Mr. Maleka that the throng of persons who filled the courtroom were some of those respondents. The legal and factual issues raised in the appeals in 845 and 1239 are virtually identical and Mr. Maleka consequently sought our approval to make submissions on behalf of the unrepresented respondents in 1239. Mr. Rowan, counsel for the appellant in 1239, fairly and properly raised no objection to the course proposed. In view of the importance the appeal held for these unrepresented respondents we allowed Mr. Maleka to argue the appeal on their behalf.

The Appeal in 367

[7] Rule 49 (2) provides that where leave to appeal to the full court is granted, a notice of appeal shall be delivered to all the parties within 20 days of the granting of the order or within such longer period as may upon good cause be permitted.

[8] Notwithstanding the peremptory provisions of the Rule the appellant (Stofile) omitted to file a notice of appeal timeously. Instead three separate notices of appeal were filed more than one year later. In addition he failed to file a record of appeal. Such record was however subsequently filed by the respondent’s attorneys to expedite the appeal. Although the appeal had lapsed in terms of the Rules, the registrar notified the appellant and the respondent that the appeal had been enrolled for hearing on 23 June 2009.

[9] On the latter date confusion reigned and after much deliberation orders were issued by agreement in the following terms –

“In 845

4. The appeal is hereby postponed to a date to be arranged with the Registrar.

5. The wasted costs occasioned by the postponement are reserved for determination by the full bench hearing the appeal.

6. It is ordered that the appeal record in this matter, prepared by the second respondent and which comprises of two lever arch files marked No. 1 and No. 2 respectively, will stand as the formal appeal record in this matter subject to paragraph 4 below.

7. The appellant and all the other respondents are hereby given leave to either supplement the aforesaid appeal record or to object to any document placed therein.

8. In the event of the appellant or any of the respondents wishing to object to the appeal record prepared by the second respondent, by either supplementing the record or by applying for certain material to be struck out, they will do so formally by notice, in terms of the rules of this court, supported by affidavit setting out the grounds for either supplementing or striking out of material putting up the original documents which they intend to use as supplemented documents in the court record.

9. The appellant or any of the respondents wishing to object to the record as aforesaid, must do so within 14 days from dates hereof.

10. All the parties to this appeal are hereby ordered to file their heads of argument within the time limits prescribed which will run from the date of issue of this order.

In 1239

3. That the appeal be postponed to a date to be arranged with the Registrar.

4. That the wasted costs occasioned by the postponement be reserved for determination by the full bench hearing the appeal.

In 367

1. That the appeal be postponed to a date to be arranged with the Registrar.

2. That the wasted costs occasioned by the postponement be reserved for determination by the full bench hearing the appeal.”

[10] As adumbrated earlier notices of appeal were filed more than one year after leave had been granted by the Supreme Court of Appeal. The three separate notices of appeal were moreover contradictory, confusing and poorly drafted, a clear infraction of the provisions of the Rules. The appeal had clearly lapsed for wont of compliance with the provisions of Rule 49 and there was furthermore no application for the re-instatement of the appeal as provided for in Rule 49 (6) (b).

[11] When the matter was called on the morning of the hearing, I invited Mr. Maleka to firstly address the question whether, given the peremptory provisions of Rule 49 (2) the appeal had not lapsed. We were informed that counsel held instructions to the effect that a notice of appeal had been filed within the time periods prescribed by the Rules of Court. The various notices of appeal which formed part of the appeal record had, as adverted to earlier, all been filed more than a year after leave to appeal had been granted on petition. We allowed the matter to stand down for counsel to obtain further instructions and provide us with the timeously filed notice of appeal. When Mr. Maleka subsequently resumed his argument on this issue, the much anticipated notice of appeal had still not surfaced. It is obvious that it never existed and that counsel had been misled by Stofile. Mr. Maleka was constrained to concede that the appeal had in fact lapsed. There was no substantive application for its re-instatement as provided for by Rule 49 (6) (b) nor were any reasons advanced to satisfy the requirement of “good cause”. It accordingly falls to be struck from the roll with costs.

The Appeals in 845 and 1239

[12] The appellants in 845 are Diko and Stofile (the first and second appellants respectively), the latter’s appeal directed solely against the punitive costs order made against him relating to a so-called counter application in which he, purportedly acting on behalf of the first appellant and Nompumza, sought various orders against the respondent municipality. The relief sought in the notice of motion is nonsensical and incomprehensible and so too the affidavit deposed to by him in support of the relief sought. The judge properly regarded the application as an abuse of the process of court and rightly dismissed it. The correctness of that decision was not under attack before us, only the costs order being assailed on the sole basis that the second appellant was not called upon to address the judge prior to the costs order being made against him. The submission in factually incorrect. Mr. Rowan pointed out that during argument in the court below appellant’s counsel was afforded a prior opportunity of being heard. That submission was acquiesced in by Mr. Melane who argued the appeal on this aspect before us and I have no reason to doubt the correctness of Mr. Rowan’s assurance. An order ordering an attorney to pay costs de bonis propriis is not made lightly, but will be ordered where it is imperatively called for. This was precisely such a case. The application was devoid of all merit, the papers were voluminous and, as adumbrated hereinbefore, nonsensical, unintelligible and incomprehensible. The second appellant’s appeal accordingly falls to be dismissed.

[13] The application for eviction of the first appellant and other occupiers of erf 351 was rooted in s 4 of PIE which deals with evictions brought by owners or persons in charge of property. When it was pointed out that the application had been pursued in terms of the incorrect section Mr. Rowan readily conceded that the application should properly have been brought in terms of s 6 which is concerned with eviction proceedings brought by organs of state.

[14] It was emphasized by Sachs J in Port Elizabeth Municipality v Various Occupiers⁴

“[24] PIE provides some legislative texture to guide the courts in determining the approach to eviction now required by s 26(3) of the Constitution. Its preamble makes clear that it was enacted to do so. Its central operative provisions are s 4, which deals with evictions sought by owners or persons in charge of property, and s 6, which is concerned with eviction proceedings brought by organs of State. There is considerable difference in detail between the two provisions. They emphasise that a distinction has to be made on the basis of whether the application for eviction is brought by the owner of property or by the municipality. This case deals with proceedings brought under s 6 by the municipality and does not require us to consider whether it would have taken a different form if it had been brought directly by owners themselves under s 4. Despite their differences, both sections emphasise the central role courts have to ensure equity after considering all relevant circumstances.”

(emphasis added)

The difference in detail between the two sections arises in my view from the constitutional obligations of the state towards landless persons. Where eviction is sought by an organ of state, its obligations are more onerous than that borne by private landowners. That distinction was unfortunately not appreciated by any of the parties in the court below. There was furthermore no enquiry whether the eviction was in the public interest or the reasonableness of the respondent’s conduct in seeking the eviction. In short the requirements of s 6 were not complied with.

The relevant portions of s 6 reads as follow –

“[doja19y1998s6] 6     Eviction at instance of organ of state

 (1) An organ of state may institute proceedings for the eviction of an unlawful occupier from land which falls within its area of jurisdiction, except where the unlawful occupier is a mortgagor and the land in question is sold in a sale of execution pursuant to a mortgage, and the court may grant such an order if it is just and equitable to do so, after considering all the relevant circumstances, and if-

(a)     the consent of that organ of state is required for the erection of a building or structure on that land or for the occupation of the land, and the unlawful occupier is occupying a building or structure on that land without such consent having been obtained; or

       (b)     it is in the public interest to grant such an order.

(2) For the purposes of this section, 'public interest' includes the interest of the health and safety of those occupying the land and the public in general.

(3) In deciding whether it is just and equitable to grant an order for eviction, the court must have regard to-

       (a)    the circumstances under which the unlawful occupier occupied the land and erected the building or structure;

        (b)   the period the unlawful occupier and his or her family have resided on the land in question; and

       (c)    the availability to the unlawful occupier of suitable alternative accommodation or land.

(4) An organ of state contemplated in subsection (1) may, before instituting such proceedings, give not less than 14 days' written notice to the owner or person in charge of the land to institute proceedings for the eviction of the unlawful occupier.

(5) If an organ of state gives the owner or person in charge of land notice in terms of subsection (4) to institute proceedings for eviction, and the owner or person in charge fails to do so within the period stipulated in the notice, the court may, at the request of the organ of state, order the owner or person in charge of the land to pay the costs of the proceedings contemplated in subsection (1).

(6) The procedures set out in section 4 apply, with the necessary changes, to any proceedings in terms of subsection (1).”

[15] In the course of his judgment in Port Elizabeth Municipality Sachs J considered the provisions of PIE concerning evictions at the instance of an organ of state and succinctly summarised⁵ these statutory requirements as –

Simply put, the ordinary prerequisites for the municipality to be in a position to apply for an eviction order are that the occupation is unlawful and the structures are either unauthorised, or unhealthy or unsafe. Contrary to the pre-constitutional position, however, the mere establishment of these facts does not require the court to make an eviction order. In terms of s 6, they merely trigger the court's discretion. If they are proved, the court then may (not must) grant an eviction order if it is just and equitable to do so. In making its decision it must take account of all relevant circumstances, including the manner in which occupation was effected, its duration and the availability of suitable alternative accommodation or land.

[16] Notwithstanding the clear distinction between evictions at the instance of an organ of state and private landowners, all the parties and the court below approached the matter on the basis that the governing provision was s 4 and not s 6. By so doing the court below failed to consider matters which s 6 behoved it to do but limited itself to the s 4 (6) and (7) prescripts. By so doing the court below committed a clear misdirection.

[17] [By reason of the fact that the focus of the enquiry in the court below was directed at the wrong section, it is not possible to conclude that the eviction of the occupiers of erf 351 would be just and equitable and that the granting of an eviction order would be in the public interest as required by section 6 of PIE. The application must accordingly fail and the order for eviction set aside.] That brings me to the cross-appeal. It is self evident that it is conditional on the appeal being dismissed. That being so, Mr. Rowan, on behalf of the respondent, fairly conceded that in the event of the appeal being upheld, the cross-appeal should be dismissed.

The Appeal in 1239

[18] As adumbrated earlier the court a quo delivered a joint judgment in 845 and 1239. There is in substance no tangible difference in the two separate orders made in respect of each matter, the occupiers were ordered to be evicted, but the order stayed pending the provision of suitable alternative accommodation by the municipality. In the preceding paragraphs I have demonstrated that the eviction of the appellant in 845 was neither in accordance with justice or equity nor reasonable. The position of the respondents in 1239 is akin to that of the appellant in 845. In their case too, the application for eviction was pursued in terms of the incorrect section of PIE. [The prerequisites for eviction were equally not addressed and the court below misdirected itself in ordering the eviction of the unlawful occupier without a consideration of and a finding that the prescripts of section 6 had been complied with.] Although the respondents have not appealed against the order for eviction, it cannot be allowed to stand, their position being no different from that of the appellant in 845. We have the inherent power, sitting as a court of appeal to set aside a decision which is clearly wrong. This power was recognized by the Appellate Division in Cole v Government of the Union of South Africa⁶ where Innes C.J stated the following⁷ -

“The duty of an appellate tribunal is to ascertain whether the Court below came to a correct conclusion on the case submitted to it. And the mere fact that a point of law brought to its notice was not taken at an earlier stage is not in itself a sufficient reason for refusing to give effect to it. If the point is covered by the pleadings, and if its consideration on appeal involves no unfairness to the party against whom it is directed, the Court is bound to deal with it. And no such unfairness can exist if the facts upon which the legal point depends are common cause, or if they are clear beyond doubt upon the record, and there is no ground for thinking that further or other evidence would have been produced had the point been raised at the outset. In presence of these conditions a refusal by a Court of Appeal to give effect to a point of law fatal to one or other of the contentions of the parties would amount to the confirmation by it of a decision clearly wrong.

[19] The question of costs remains. Counsel for the parties were in agreement that this was a proper case where each party be ordered to pay their own costs. I am in agreement that such an order seems meet.

[20] There is one further matter which calls for comment. It concerns the heads of argument filed on behalf of the appellants in 845 and 367. Those heads were drawn by junior counsel, Mr. Melane, the principal argument advanced therein being that PIE was not of application to the lis between the parties. By the time the appeal was argued before us, no supplementary heads of argument had been filed. Leading counsel for the appellant, Mr. Maleka, commenced his address by invoking the protection accorded to unlawful occupiers by PIE, a complete volte-face. Prior thereto none of the other parties including the court had any inkling that the argument advanced in the heads of argument would be abandoned. The purpose of the requirement that heads of argument be filed is to identify and circumscribe the dispute to assist the other parties in the preparation of their case and precognise the court of the factual and legal issues that will be raised. As it turned out neither we nor counsel appearing for the other parties had any idea that the argument on behalf of the appellant would proceed in the manner in which it did. Although we could, had we so desired, have refused to entertain the appeal until proper heads of argument had been filed in terms of the Rules, we heard the appeals so as not to further protract what has taken years to conclude. Appellant’s counsel’s failure to file proper heads of argument is to be deprecated.

[20] The following orders will issue –

[A] In Appeal 845

1. The appeal by the first appellant is allowed, the order of the court below set aside and replaced by the following –

“The application is dismissed.”

2. The appeal by the second appellant, Mr. L.L.L Stofile is dismissed with costs.

[B] The Appeal in 1239

The appeal is allowed, the order of the court below is set aside and replaced by the following –

“The application is dismissed.”

[C] The Appeal in 367

The appeal is struck off the roll with costs, such costs to include the respondent’s costs in respect of the application for leave to appeal to the Supreme Court of Appeal.

______________________

D. CHETTY

JUDGE OF THE HIGH COURT

Van Zyl, J

I agree.

_____________________

D. VAN ZYL

JUDGE OF THE HIGH COURT

Schoeman, J

I agree.

_______________________

I. SCHOEMAN

JUDGE OF THE HIGH COURT

In matters 845/2005 and 367/05

On behalf of the Appellant: Adv V.M Maleka SC/ Adv T.H Melane /

Adv Bukaba

Instructed by Mnqandi Inc

18 Owen Street

Mthatha

On behalf of the 1^st Respondent: Adv P.A.C Rowan SC

Instructed by Elliot & Walker Attorneys

26 Blakeway Road

Mthatha

On behalf of the 4^th Respondent: Adv S.M Benenge SC

Instructed by X.M Petse Inc

Suite 443- 4^th Floor

Development House

York Road

Mthatha

In matter 1239/2005

On behalf of the Appellant: Adv P.A.C Rowan SC

Instructed by Elliot & Walker

26 Blakeway Road

Mthatha

Ref: D Shaw/N Kumm/ XU16

On behalf of the 3^rd and 7^th Respondents: Adv S.M Benenge SC

Instructed by X.M Petse Inc

Suite 443- 4^th Floor

Development House

York Road

Mthatha

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