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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

(PRETORIA)

Case No: 12323/07

REPORTABLE DATE: 26/10/2007

In the matter between:

MALELANE (EDMS) BPK Applicant

and

DUNCAN GODFREY First Respondent

MICHELLE SMITH Second Respondent

Judgment reserved: 16 October 2007

Judgment handed down on: 26 October 2007

JUDGMENT

LEGODI J

INTRODUCTION

1. This is an application in terms whereof the applicant, Malelane Stene (EDMS) BPK, seeks an order that the two respondents, namely, Mr Duncan Godfrey and Ms Michelle Smith be evicted from a property described as the farm Malelane Estate B390, Registration division JU ,Mpumalanga (hereinafter referred to as the farm), and that should the respondents fail to vacate the said farm within thirty days of this order, the Sheriff or his deputy duly authorized, should be authorized and directed to remove the respondents with the assistance of the police, should a need arise.

2. The other relief sought, is an order for costs to be paid by the two respondents jointly and severally, the one paying the other to be absolved.

BACKGROUND AS PER THE APPLICANT

3. The application is said to be brought in terms of the provisions of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act no. 19 of 1998 (hereinafter referred to as PIE).

4. The applicability of the provisions of PIE is based on the following sets of facts: During or about July 2006 a written contract of lease was concluded between the applicant and National Department of Public Works (hereinafter referred to as the owner). The terms and conditions, of relevance are as follows:

• That the owner lets and the applicant hires the farm.

• That the effective date of the lease was the 1^st July 2006.

• That the lease was to expire on the 30 July 2011.

5. As at the time of the conclusion of the lease, the applicant had already taken occupation thereof as from the 13 June 2006. The applicant therefore, avers that it was a person in charge of the farm as defined in section 1 of PIE.

6. After the applicant had taken occupation of the farm, he became aware that the two respondents were occupying one of the residences on the farm (hereafter referred to as the property). The applicant alleges that it has no knowledge as to when the respondents started to occupy the said residence.

7. The respondents are alleged to be residing on the property without the permission or the consent of the applicant. The respondents are alleged to be working, although the applicant did not know where and what kind of a job they are doing and how much they earn.

8. Before the institution of these proceedings, the applicant obtained an order to proceed by way of notice in terms of section 4(2) of PIE. Upon authorization of the notice in terms of section 4(2) of PIE, service was then effected which then resulted in the present proceedings. On the 25 May 2007 the respondents delivered a notice of opposition.

BACKGROUND AS PER THE RESPONDENTS

9. The first respondent, Mr Ducan Godfrey has been living on the farm since the 12 April 1986 and the second respondent since the 14 February 1998. Both the respondents took occupation of the property with the express consent of the late Samuel Rogoff (hereinafter referred to as Rogoff).

10. Rogoff was the owner of the registered base metal mining claims on the farm. There were 512 claims in total. The base metal claims entitled the holder to the mine, the subject land and granted such a person or his nominee sole access to the farm. Rogoff is alleged never to have terminated the right to occupy the property.

11. Rogoff passed away on the 15 February 2004 and at the time of his death, he was still the registered base metal mining claims holder and as such the person in charge of the farm, the property.

12. After Mr Rogoff had passed away, the entitlement to the claims went to Hylda Marchette, who became the new claims holder through inheritance. Ms Marchetti is alleged to have given express consent to the respondents to continue to occupy the property and that she did not at any stage terminated such a right to occupy or reside on the property.

13. According to the first respondent, he is unemployed and for the months April 2007 and May 2007 he received pay from the Unemployment Insurance Fund. The second respondent is earning R3500.00 per month.

14. The respondents aver that they are occupiers of the property in terms of the provisions of Extension of Security of Tenure Act 62 of 1997 (hereinafter referred to as ESTA) and that therefore this court does not have jurisdiction to hear this matter

15. The respondents further aver that there are dispute of facts which cannot be resolved by affidavits without hearing oral evidence.

ISSUES RAISED

16. In my view, the following issues are raised in this matter;

1. Whether or not the respondents are occupiers in terms of Extension of Security of Tenure Act 62 of 1997, and

2. If so, whether this court does have jurisdiction or competent to hear this matter,

AND

3. If not, whether the applicant is entitled to reliefs under PIE.

APPLICABLE LEGISLATION AND LEGAL PRINCIPLES

17. In terms of section 1 of ESTA, an occupier is defined as a person residing on land which belongs to another person and who has on 4 February 1997 or thereafter, had consent or any right in law to do so, but excluding a person using or intending to use the land in question mainly for industrial mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or family and a person who has an income in excess of the prescribed amount.

18. A person in charge, is in terms of ESTA, 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. Consent is defined as express or tacit consent of the owner or person in charge of the land in question and in relation to a proposed termination of the right of residence or eviction by a holder of mineral rights and includes the express or tacit consent of such holder.

19. In terms of section 3(1) of ESTA, consent to an occupier to reside on or use land shall only be terminated in accordance with the provisions of section 8. Subsection 3 of section 3 thereof provides that for the purpose of this Act, consent, to a person to reside on the land shall be effective regardless of whether the occupier, owner or person in charge has to obtain some other official authority required by law for such residence. In terms of section 3(4), for the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of one year, shall be presumed to have consent unless the contrary is proved. Subsection 5 hereof provides that, a person who has continuously and openly resided on land for a period of three years, shall be deemed to have done so with the knowledge of the owner or person in charge.

20. Section 17(1) of ESTA titled “choice of court” provides that a party may subject to the provisions of sections 19 and 20, institute proceedings in the magistrate’s court within whose area of jurisdiction the land in question is situated or the Land Claims Court. Subsection 2 thereof provides that if all parties to proceedings consent thereto, proceedings may be instituted in any division of the high court within whose area of jurisdiction the land in question is situated. In the matter of Agrico Masjinerie v Swiss 2007 SCA 84 (RSA) the court held that the High Court has jurisdiction where a party does not claim performance of functions of court under ESTA, but interpretation of and pronouncement upon rights relied on in terms of ESTA.

Section 2 of ESTA deals with the application and implementation of the Act and it provides as follows – (1) subject to the provisions of section 4, this Act shall apply to all land other than land in a township established, approved, proclaimed or otherwise recognized as such in terms of any law, or encircled by such a township or townships, but including-

1. any land within such a township which has been designated for agricultural purposes in terms of any law; and

2. any land within such a township which has been established, approved, proclaimed or otherwise recognized after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment, approval, proclamation or recognition.

2. Land in issue in any civil proceedings in terms of this Act shall be presumed to fall within the scope of the Act unless the contrary is proved.

21. PIE refers to unlawful occupier, as a person who occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy such land, excluding a person who is an occupier in terms of the Extension of Security of Tenure Act 1997, and excluding a person whose informal right to land but for the provisions of this Act, would be protected by the provisions of Informal Land Rights Act.

DISCUSSIONS, SUBMISSIONS AND FINDINGS

22. For three reasons, counsel for the applicant took the point that the respondents were not occupiers as envisaged in ESTA. Firstly, that the respondents did not have the consent of the applicant as the person in charge of the property. Secondly, that the respondents did not reside on the property for the purpose of agricultural farming and lastly, that the first respondent earn more than R5000 per month. In making these submissions, the applicant sought to rely on the definition of an occupier in terms of ESTA. I have in paragraph 17 of this judgment referred to the provisions of section 1of ESTA. I now turn to deal with the substance of the submission.

CONSENT

23. The first respondent stayed on the property since 1986 and the second respondent since 1998. Both had consent from the late Rogoff who was the registered base metal mining claims holder on the farm. He was therefore, the person in charge. When he passed away, he had not terminated the respondents’ rights to reside on the farm. His subsequent successor was Mrs Marchetti. She too, did not terminate their rights to reside on the farm. Based on these set of facts, it was submitted on behalf of the respondents, they resided on the property with consent and that therefore, they are not unlawful occupiers on the property as suggested by counsel on behalf of the applicant. Remember, in terms of PIE, an unlawful occupier is a person who resides on a property without consent of the owner or occupier of land. It became an issue therefore as to whether or not the respondents had or were having consent to stay on the property. This issue was later narrowed. It became clear that the applicant could not credibly deny the averment to the effect that Rogoff had during his life time gave consent, and secondly, that the respondents had been staying on the property since 1986 and 1998 respectively. What the applicant however, wanted to contend was that the respondents had failed to discharge the onus. This submission was made on the basis that the respondents had failed to file a confirmatory affidavit, at least from Mrs Marchetti. Ordinarily, one would have expected indeed such a confirmatory affidavit to be filed. However, this failure should be seen in the light of the fact that the applicant is in no way to deny this allegation by the respondents. Secondly, the applicant cannot deny the suggestion that the said Rogoff was a person in charge, him having had base metal mining claims as it would appear from annexure DCG1, being proof of registered base metal mining claims in favour of Rogoff. But, even most importantly, there is a presumption operating in favour of the respondents that they had consent. The presumption is founded in section 3 of ESTA. I have earlier on, in paragraph 19 of this judgment referred to the relevant provisions thereof.

1. Both respondents have been staying on the property for a period of over three years. The applicant initially in its founding affidavit wanted to suggest that it only became aware in June 2006 that the respondents were residing on the property. It however, became apparent in the respondents’ answering affidavit, that the first respondent and the applicant’s deponent to the founding affidavit had long known each other. Secondly, during the discussion, it was not vigorously persisted that the applicant did not know that the respondent had been staying on the property long before the applicant concluded the lease agreement referred to earlier in this judgment. All of these factors should be found to justify presumption in terms of section 3 of ESTA.

2. The applicant seemed to have wanted to suggest further, that any such consent as it might have existed had lapsed. This submission was based on the provisions of Mineral and Pretroleum Resources Development Act 28 of 2002 which came into effect on 01 May 2004. Articles 8 of Schedule 2 of the Act provides, that any unused older right in force immediately before this Act took effect continuous in force, subject to terms and conditions under which it was granted, acquired or issued or was deemed to have been granted or issued for a period not exceeding one year from the date on which this Act took effect. In terms of sub-item 2 such a holder of an unused older right has the exclusive right to apply for a property right or a mining right as the case may be, in terms of this Act within the period referred to in sub-item (1). Sub-item (3) thereof provides that an unused old order right in respect of which an application has been lodged within the period referred to in sub-item (1) remains valid until such time as the application for a prospecting right or mining right, as the case may be, is granted and dealt with in terms of the Act or refused. Subject to sub-items (2) and (3), an unused old order right cease to exist upon the expiry of the period contemplated in sub-item (1). The contention by the applicant is that neither Rogoff nor Ms Machetti complied with the provision of this Act. Based on this, it was suggested that any right the respondents could have had expired on 1 May 2005. This submission in my view, ought to be considered in the light of the provisions of section 8 of ESTA. I come to deal with this later in this judgment.

EXCLUSION AS OCCUPIER IN TERMS OF SECTION 1 OF ESTA

23. In his submission counsel for the applicant took the point that, the respondents should be seen to be excluded as occupiers of the land in terms of the provisions of ESTA. In paragraph 17 of this judgment, a definition of an occupier was given. For completeness sake, the relevant provisions is repeated as follows:

(a) “Occupier means a person residing on land which belongs to another person and who has or on 4 February 1997 or thereafter had consent or another right in law to do so, but excluding-

(b) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes, but including a person who works the land himself or herself and does not employ any person who is not a member of his or her family. (My own emphasis)

1. In his heads of argument counsel for the applicant expressed himself as follows:

“Die eiedom is met eerbied nie landbougrond nie en is ESTA gevolklek nie van toepasing nie. Hierdie Agbare Hof het dus wel jurisdiksie on hierdie aansoek te bereg”. This submission suggests that for one to be an occupier in terms of ESTA, the land in question should be an agricultural land which is used for agricultural purposes.

An argument along this line was persisted during discussion. That is, the respondents were excluded in terms of section 1(b) of ESTA. I find it difficult to understand this submission. Remember, in terms of Section 2 of ESTA, subject to the provisions of section 4, ESTA shall apply to all land, other than land in a township established, approved, proclaimed or otherwise recognized as such in terms of any law, or encircled by such a township or townships. I can find no suggestion in terms of section 2 that such a land has to be an agricultural land, before one could become an occupier in terms of section 1. The land in the present case is not a land in a township. Coming back to section (1)(b), only the following are in my view, excluded as occupiers:

• a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial farming purposes.

• A person who works the land himself or herself and who does not employ other person or persons excluding member of his or her family.

2. No evidence was tendered that any of the respondents was a person excluded in terms of section 1(b) of ESTA. In the founding affidavit, the deponent in paragraph 12 thereof stated as follows:

“Die eerste en tweede respondente is klaarblyklike werksaam, aangesien hulle bedags nie by die eiendom aanwesing is nie. Ek weet nie wat die aard en omvang van die eerste en tweede respondente se besigheid en/of bedryf saktiwiteite is nie”. Clearly, no allegation whatsoever is made that any of the respondents might be performing on the property exclusion activities as envisaged in section 1(b). On the other hand, the first respondent in paragraph 1 of his answering affidavit indicated that he was unemployed. I therefore have difficulties in finding exclusion in terms of section 1(b) of ESTA. Before I step off from this point, I should perhaps deal with the presumption in terms of section 2(2) of ESTA, that is land in issue in any civil proceedings in terms of this Act, shall be presumed to fall within the scope of the Act unless the contrary is proved. The land in issue in these proceedings is a land in dispute in terms of ESTA. That is, the respondents are contending to be occupiers in terms of the Act. This should be seen to place an onus on the applicant to show on a balance of probabilities that ESTA is not applicable to the respondents. I revert to this later.

RESPONDENTS’ INCOME

23. For one to be an occupier in terms of section 1(c), should also have no income of more than R5000. This is the amount as prescribed in terms of the Act for this purpose. It did not appear during the discussion that the second respondent was earning less than R5000 per month. Employment agreement between the second respondent and M and CASH LOANS cc was attached to the answering affidavit. She earns a basic salary of R3500. However, as regard to the first respondent, counsel took the point that on the first respondent’s own version, he earns more than R5000 per month. Remember, the first respondent in the founding affidavit indicated that he was unemployed. In his bank statement for the period 17 March 2007 to 15 May 2007, two deposits are reflected. The one for the amount of R3718.10 credited to his account on the 17 April 2007. The other deposit for the amount of R1410.32 credited to his account on the 10 May 2007. Both these amounts are from Unemployment Insurance Fund. The applicant in challenging the first respondent’s income stated as follows in paragraph 3 of the replying affidavit:

“…Die eerste respondent verkies om werkloos te wees, alhoewel dit gemeensaak is dat die eerste respondent se inkomste vir die periode vanaf Maart tot 15 Mei 2007 ‘n bedrag van R5128,42 beloop het. Voormelde syfer blyk op die eerste respondent se eie weergawe uit sy bankstaat wat as aanhangsel DCG2 by sy opponerende beedighede verklaring aanhangsel is. En dra persoonlik daarvan kennis dat die eerste respondent juweliersware vervaarding wat hy op ‘n informele basis verkoop en het hy in die verlede by Spar in Malelane gewerk. In die vooropstelling doen ek met eerbied aan die hand dat dit hoogs onwaarstynlik is dat die eerste respondent weerkloos is”. Firstly, “hoogs onwaarskynlik is dat die eerste respondent weerkloos is”, fails to take into account the fact that his version in this regard is supported by the two deposits into the first respondent’s banking account made by the Unemployment Insurance Fund. Secondly, whether or not the first respondent chose to be unemployed would not make any difference particularly, that it was not suggested that he became unemployed with the view to be an occupier in terms of section 1 of ESTA.

1. Coming back to the income in excess of R5000, counsel for the applicant persistently argued that on the first respondent’s own version, his income exceeds R5000 in a month. I am having some difficulties with this submission. Firstly, the origin of the two deposits is known. It is from the Unemployment Insurance Fund. Such payments are not constant and permanent. Proof of two payments only, cannot in my view be seen as income intended in section 1(c) of ESTA. Secondly, I do not think that the amounts can be brought together and then conclude that the earning is over R5000 per month. The payments were made on the 17 April 2007 and on the 10 May 2007 respectively. I cannot infer from this set of facts that it is an earning in excess of R5000. It calls for speculation to suggest that the first respondent could have received another payment in the first two weeks of April 2007 or that he could have received payment in May 2007 after the fifteenth. I was urged to draw an adverse inference against the first respondent in the light of the fact that he did not attach more bank statements. Remember, he had indicated that he was unemployed and the two deposits had served to confirm this. The applicant also in its replying affidavit suggested that the first respondent used to sell jewelery. This allegation was not mention in the founding affidavit. Instead in the founding affidavit, the applicant stated as follows:

“Ek weet nie wat die aard en omvangs van die eerste and twede respondente se besigheids en/of bedgryf saktiwiteite is nie”. This turn around that “die eerste respondent juweliersware vervaardig wat hy op ‘n informele basis ververkoopenhet wat hy op verlede by Spar in Malelane gewerk” ,is in my view a cause for concern as to the extent to which one should rely on the submission made on behalf of the applicant around all of these.

23. I am not convinced nor satisfied that the respondents are excluded as occupiers in terms of section 1 of ESTA. Having said this, I do not think that any right which the respondents had, could have been terminated in terms of the provisions of Mineral and Petroleum Resources Development Act 28 of 2002. Such termination has to comply with the provisions of section 8 of ESTA. The result of all of these findings, is that this court does not have jurisdiction to hear this matter, such jurisdiction having been excluded in terms of section 17 of ESTA. Before I conclude, I need to mention that, indeed it was not feasible to deal with the issue of jurisdiction without touching on the merits of the real dispute, being whether or not the applicant is entitled to evict the respondents. Despite my findings on the aspect of merits, and in particular whether or not the respondents had consent, I am hesitant to make a final finding in this regard. Final determination on the dispute between the parties, should be the subject of determination by the court having jurisdiction or such a court or forum as the parties may agree to go to for resolution of their dispute. Remember, in terms of section 17, the magistrate court or Labour court has jurisdiction. A division of a High Court will have jurisdiction, if the parties agree or have agreed to have the proceedings be instituted in a division of the high court within whose area of jurisdiction the land in question is situated.

CONCLUSION

Consequently, the application is strike off from the roll with costs.

JUDGE M F LEGODI

JUDGE OF THE HIGH COURT

Attorneys for the Applicant

Johan Van Rensburg Attorneys

c/o Couzyn Hortzog & Horak

321 Middle Street,

BROOKLYN, PRETORIA

Attorneys for the respondents

Vorster, Du Plessis Attorneys

520 Spuy Street

SUNNYSIDE, PRETORIA

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