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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Held at RAND BURG 17 January 2003 CASE NUMBER: LCC01-03

before Bam JP

Decided on: 22 July 2003

JOEL MONYEKI 1^st Applicant

MONYEKI M 2^nd Applicant

and

POTION 608 NEW BELGIUM Respondent

In the case of:

JUDGMENT

BAM JP:

[1] This matter came before the court as an urgent application to stay an eviction order against the applicant. The order had been obtained by the respondent from this court on 3 September 2002 in terms of which the applicant and his daughter, who has since withdrawn her application, were ordered to vacate the respondents" farm on or before 15 December 2002.

[2] It was further ordered that should the applicant fail to have vacated on the above date, the sheriff be authorised to carry out the eviction on or after 4 January 2003. The present applicant was also authorised to demolish any structures that had been erected on the farm and to salvage any material from such structures for themselves before 15 December 2002.

[3] It is common cause that the applicant failed to leave the farm by 15 December 2002 whereupon on 15 January- 2003 the respondent caused a warrant of eviction to be issued to be carried out on Monday 6 January 2003. The application for this eviction was brought before the court in terms of the 'Extension of Security of Tenure Act'.¹

[4] It is also common cause that on the 3 January 2003 a notice was gazetted in terms of the Restitution of Land Rights Act (No 22 of 1994)² that the applicant (and another) had lodged a claim for the restoration of land rights on the farm during October 1997. It should be observed that this notice was published one day before the date on which the Sheriff was authorised to carry out the eviction order and more than five years after the application for restoration was made.

[5] The publication of the above notice at once prompted the applicants' attorneys to lodge the present proceedings on an urgent basis on the same Friday. The application was premised on the understanding that the publication of the notice had the effect of bringing into operation the provisions of section 1 l(7)(b) of the 'Restitution Act' which reads:

"No claimant who occupied the land in question at the date of commencement of this Act may be evicted from the said land without the written authority of the Chief Land Claims Commissioner"

[6] The aim initially was clearly to prevent the sheriff from carrying out the warrant of eviction on Monday 6 January 2003, or indeed, on any other day thereafter. The court, while accepting the.

apparent urgency was not inclined to grant the application without affording the respondents the opportunity to be notified of the application and to contest it if so inclined. Accordingly the court, having established that the respondent had no intention to execute the eviction issued the following directives on Tuesday 7 January 2003.

" 6. The case number LCC0I/03 been allocated to this matter and in terms of rule 29(2)(b) of the Land Claims Court Rules, the matter has been allocated to Judge President Bam. All queries relevant to this case can be directed to President Barn's registrar. Ms Sindi Mlonzi. She can be contacted at 072 419 7189 after hours.

7. The Notice of Motion on behalf of the applicants has set out adequately the circumstance which, if established, render the matter urgent.

8. Non compliance with the prescribed rules is accordingly condoned.

9. The applicant must supply this court with adequate proof of all service to the respondents and all other interested parties, by no later than 12ft00,09 January 2003 .If the respondent's advisor's or representatives' identities and addresses are known to the applicant, service must similarly be

effected on them.

10. The respondents must, if they wish to participate in the matter, file and deliver notices of
appearance and answering affidavits as well as any relevant documents, by no later than 12h00, 10 January 2003.

11. Applicant may file and deliver replying affidavits, as well as any relevant documents by no later than 12h00,13 January 2003.

12. Any party intending to raise a question of a law, must deliver a notice to that effect setting out briefly the question of law in terms of rule 33(4)(c) by no later than I6h00 Wednesday 16 January 2003.

13. The matter is set down for hearing at 09h00 on 17 January 2003 at the seat of the Court in
Randburg.

14. The above directives will not prevent any party from;

1. applying to the Court for an amendment to them or a postponement or extension of service requirement and time limits set.

(b) disputing the urgency of the case.

(c) phoning the Registrar for clarification of these directives.

15. Finally, the presiding judge, may , in terms of rule 30, convene one or more conferences of the participating parties to promote the expeditious, economic and effective disposal of the case."

[12] I am of the firm opinion that the pursuit of this application no longer has to do with the stay of execution of the courts' eviction order because this has been rendered unnecessary by the applicant and his family themselves vacating the land to settle in Vaalwater. The pursuit of the application now really seeks to achieve an order to legitimise the return of the applicant onto the applicant's land. That cannot be done by invoking the provisions of sectionl l(7)(b) of the 'Restitution Act' because they were not intended to address the situation such, as in this case, where the eviction order is in terms of Extension of Security of Tenure Act.³

[13] In all the circumstances, I am convinced that the application is an unworthy and opportunistic attempt to utilise the court and its processes in order to circumvent and short circuit appropriate procedures. It is significant to note that the court was left in the dark as to how the amazing feat, in timing, was achieved resulting in the publication of the notice of claim in the Gazette one day before the date of execution after 5 years since the application was made. Nor was the court informed as to the nature of the right in land of which the applicant was dispossessed or the nature of the right or equitable redress he was claiming in terms of the 'Restitution Act'.

Order:

[14] (i) The application is dismissed

(ii) No order is made regarding costs.

PRESIDING JUDGE

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