DATE: 22/04/2010

IN THE MATTER BETWEEN
JACOBUS MARTHINUS OELOFSEN N.O.	APPLICANT
AND

JUDGMENT
POSWA. J 
BACKGROUND
[1] The applicant is a trustee of the insolvent estate of the first respondent, who is married, by customary law, to the second respondent. The first and second respondents are business people. The applicant seeks to evict the first and second respondents and all parties occupying through them out of the property situated in Nelspruit. it being pan of the first respondent's insolvent estate. It is common cause that the first and second respondents, their children and another family member occupied the premises.

[2] In opposing the application, the respondents aver that the property is still registered in the name of the first respondent and that, accordingly, the respondents are entitled to continue in occupation thereof. They also aver that the second respondent is unable to provide suitable alternative accommodation for himself, the first respondent and the others mentioned, due to his unhealthy financial situation.

[3] The applicant submits that it is just and equitable that an eviction order be granted, the respondents' contentions notwithstanding. In paragraph 13, more pertinently subparagraphs 13.1 to 13.17, the applicant details reasons for his submissions. It is, in my view, not necessary to restate these reasons in this judgment. Suffice it to say that, for those reasons, the applicant prays that an order be granted in terms of the notice of motion.

[4] The application is based on the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No 19 of 1998 ("PIE"), to which I shall return shortly in the judgment.
[5] It is common cause that the respondents have resided on the property far in excess of a period of six months. That, therefore, qualifies the application to be dealt with in terms of the provisions of s 4(7), which reads as follows;

[7] Other delays were in consequence of misunderstanding or disagreement as to what the next step would be when the matter resumed after a postponement and, which is part of the same question, what precisely had been achieved at the previous hearing. The Court, although unavoidably so, also contributed towards these regrettable delays. It is not advisable, for purposes of this judgment and in the light of the need to produce it as expeditiously as possible, to dwell on the causes of these regrettable delays. It must also pertinently be mentioned that the fact that a different legal representative, on behalf of the respondents, took over from another, of the same firm of attorneys, who had initially conducted the proceedings on behalf of the respondents, added substantially to the delay during the proceedings. I refer to Mr Omar, who took over from Ms Y Omar. It became evident that Mr Omar had not had ample time to acquaint himself with all that Ms Omar had done during the initial cession of the hearing of the application. Consequently, he brought up new submissions which could not. in the interest of justice, be dismissed on the basis that they had not initially been raised by Ms Omar. They were foreshadowed in, or were not inconsistent with, the respondents' answering affidavit.

[8] It is common cause that the first respondent and the other occupants mentioned above, excluding the second respondent, have resided at the property, 18 Von Braun Street, Nelspruit, since about 1997. It is also common cause that, on or about 4 November, 2002, the applicant attempted to sell the property. According to the applicant, the sale was intended to raise funds for the benefit of the insolvent estate's creditors. The applicant submits that he gave the first respondent notice, on 26 September, 2002, to vacate the premises by 31 October, 2002. He noticed, on about 29 October, 2002, that the first respondent and the other occupants were making no efforts to vacate the premises as notified.

[10] It makes no difference, in my view, whether the second respondent also resided on the premises or not, for purposes of this judgment. What is clear from the answering affidavit is that it is alleged that the respondents could not obtain alternative accommodation, an allegation that is strongly disputed by the applicant. Presently, I am of the view that it is not necessary for me to resolve that dispute, for purposes of this judgment. The gravamen of the case is that the respondents, whether they include or exclude the second respondent, did not vacate the premises as required by the applicant. They, thus, ostensibly, became illegal occupants of the property, hence the applicant's current application.
[11] When the application resumed, more than two years later, Mr Omar, as I have already stated, replaced Ms Omar as the respondents' legal representative.

provisions of s 7 of PIE. It reads thus:

(3)	Any party may request the municipality to appoint one or more persons in terms of subsections (J) and (2), for the purposes of those subsections.
(4) A person appointed in terms of subsection (1) or (2) who is not in the full-time service of the State may be paid the remuneration and allowances that may be determined by the body or official who appointed that person for services performed by him or her.

[18]    In his heads of argument, Mr Leathern responded to this submission as follows:

Mr Leathern went further to submit as follows in paragraphs 5.2.2 and 5.2.3 of his heads of argument:
"5.2.2 The fact that the PIE Act and in particular sections 4(6) and 4(7) enjoin the Court to consider all the relevant circumstances before granting an order of eviction does not place any obligation on the municipality to be a party to the application or any obligation on the Applicant to make the municipality a party to the application.
5.2.3 It is significant that the legislature chose not to place any obligation on the municipality to either report where the provisions of Section 4(7) of the Act are applicable or at all."
Mr Leathern submitted that no obligation exists, in PIE, on a municipality to report anything whatsoever to the Court.

"In the present instance it is quite clear that there is a dispute between the parties which dispute could not be resolved by the municipality, such dispute only having been fully ventilated in an application which has run since 2004 but which was previously ventilated in an application launched in 2002;"

[25], at 339C-F. Those paragraphs read thus:

"4.3 It is significant that nowhere in the Act does it prescribe that any application must be served on the municipality or that the municipality must be a party thereto and only Section 4(2) refers to service of the Notice of the proceedings on the municipality having jurisdiction.

[24] As it is a local municipality's obligation, and not that of the Court, to exercise the discretion contained in s 7, it would be inappropriate, in my view, for the Court to suggest what aspects may be in dispute in this matter. The joinder of a local municipality should not depend upon identification, by a court or the parties, of possible disputes between the parties. It should, in my view, be based entirely upon the legislature's intention, when enacting s 7 of PIE. As earlier stated herein, the legislature introduced the element of mediation which was, hitherto, non-existent as part of the eviction process. That new concept should not be permitted to atrophy, simply because municipalities have ignored it.

The emphasised portion indicates clearly, in my view, why a local municipality.
in such circumstances, has an interest in the outcome of an eviction application.

[27]    Concerning the assertion by Mr Leathern that the local municipality -

[29] Although it is not strictly necessary to mention this in this case. I think it will do no harm for me to round up my view of the implications of s 7 of PIE. Section 7(2) deals with the scenario in which the local municipality is the owner of the land in respect whereof the eviction proceedings are brought. Nothing is demanded of the municipality in such circumstances. The task to determine whether there is a dispute that calls for an attempt to settle it, falls on a Member of the Executive Committee ("MEC") designated by the Premier of the Province concerned. For the same reasons for which the local municipality must be joined where it is not the owner (s 7(1)), the Premier must, in my view, be joined where the local municipality is the owner of the land (s 7(2)).

[30] As must, by now, be obvious, I have arrived at the conclusion that this application cannot proceed without the local municipality being joined. In the circumstances, it is not necessary, in my view, to deal with many other submissions made by the parties' legal representatives. Such submissions will be relevant only after the local municipality has been joined. I am in agreement with Mr Leathern that the proper course is not to dismiss the application.

[31]    In the circumstances I make the following order:
1. The local municipality of Nelspruit is hereby joined as the fourth respondent for the purpose of enabling it to exercise its discretion in terms of s 7(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ("PIE").
2. Service of this order and any consequential amendments to the applicant's papers shall be effected on the local municipality of Nelspruit.
3. Service of the notice of motion, founding affidavit and annexures thereto upon the local municipality of Nelspruit is not necessary.
4. The local municipality of Nelspruit shall file a report with the Registrar of this Court and serve copies thereof on the first and second respondents, in which report it will:
	(a) state whether it has established whether or not a dispute or disputes requiring attempted settlement exists or exist between the applicant and the respondents;
	(b) if such a dispute or disputes exists or exist, give details of a person or persons contemplated in s 7(1) of PIE and appointed by it to attempt mediation; and
	(c) if it has appointed a person or persons contemplated in s 7(1) of PIE. simultaneously file a report on the outcome of mediation proceedings conducted by such persons, if finalised, or, if such mediation proceedings are still in process, a report on the expected duration thereof.

5. The report alluded to in paragraph 4 hereof should be filed and served within two months from the date of service of this order upon the local municipality of Nelspruit.

7. The applicant is hereby authorised to approach the Court on these papers or supplemented papers after the filing and service of the local municipality of Nelspruit's report.
8. The applicant is ordered to pay costs occasioned by its opposition to the joinder of the local municipality of Nelspruit.

J N M POSWA 
JUDGE OF THE NORTH GAUTENG HIGH COURT
10499-2004

HEARD ON: 03 DECEMBER 2007