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Kungwini Local Municipality v Puntlyf 520 Investments (Pty) Ltd

LCC86/07

Keywords

Expropriation Act No 63 of 1963 – Application by the Municipality to stay a warrant of eviction pending an intended expropriation of land by the Municipality, allegedly for housing purposes – True purpose of the intended expropriation is to protect the occupiers on the land from being evicted – such not a municipal function or duty – Application dismissed

Summary

Land owners obtained an order in terms of the Extention of Security and Tenure Act No 62 of 1997 for the eviction of occupiers from their land. The occupiers failed to vacate the land as required in terms of the Court Order. The Municipality in whose area of jurisdiction the land is situated, applied for an order that the eviction of the occupiers be suspended pending an intended expropriation of the land by the Municipality, allegedly for housing purposes.

The Municipality contended that it had a duty, in the public interest, to protect the occupiers’ constitutional right of access to housing. The occupiers, however, are not indigent persons in dire need of housing. It was held that the true purpose of the intended expropriation was to enable the occupiers to remain on the land, which is not a municipal function or duty. No opportunity was given to the land owners to make submissions on the intended expropriation to the Municipality in terms of the provisions of the Promotion of Administrative Justice Act No 3 of 2000. It was held that, should the Municipality implement its decisions to expropriate the farm, the expropriation would probably be invalid. The application for a stay of the eviction was accordingly dismissed.

Judgment

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

(HELD IN RANDBURG)

CASE NO: LCC 86/2007

Heard: 29 August 2007

Judgement delivered: 14 September 2007

In the matter between:

KUNGWINI LOCAL MUNICIPALITY Applicant

and

PUNTLYF 520 INVESTMENTS (PTY) LTD 1^st Respondent

DAVID JOHN KIRKNESS 2^nd Respondent

NICHOLAS JOHN O’BRIEN 3^rd Respondent

PHILEMON MABENA 4^th Respondent

JONAS KOKELA 5^th Respondent

GRASMAN SINDANE MAHLANGU 6^th Respondent

MARIA SINDANE MAHLANGU 7^th Respondent

THE SHERIFF: BRONKHORSTSPRUIT 8^th Respondent

JUDGEMENT

______________________________________________________________

Gildenhuys J

Introduction

[1] This is an application to stay a warrant of eviction. The applicant is the Kungwini Local Municipality. The first respondent is Puntlyf 520 Investments (Pty) Ltd. It owns portion 2 of the farm Rietvlei 512 JR (“the Rietvlei farm”) and portion 9 of the farm Puntlyf 520 JR (“the Puntlyf farm”). The second and the third respondents are directors of Puntlyf 520 Investments (Pty) Ltd. I will refer to the first, second and third respondents as “the land owners”. The fourth, fifth, sixth and seventh respondents, together with their families live on the Puntlyf farm. I will refer to them as “the occupiers”. The eight respondent is the sheriff of Bronkhorstspruit.

[2] The Rietvlei farm is 90,4684ha in extent. The Puntlyf farm is

171, 3071ha in extent. The farms are situated some 20km outside the town of Bronkhorstspruit, within the area of jurisdiction of the Kungwini Local Municipality.

The Facts

[3] During 2004 and in this Court, the land owners lodged an application against the occupiers, claiming inter alia an order evicting them and all persons occupying through or under them from the Rietvlei and Puntlyf farms. The Metsweding District Municipaltity assisted the occupiers financially to obtain legal representation for opposing the eviction application. The financial assistance was given pursuant to the Metswending Municipality’s perceived duty to assist its constituents in certain cases of public interest. The Metsweding Municipality avers that the eviction of occupiers from land within its jurisdiction is of public interest because it imposes a burden on the Municipality to provide suitable alternative accommodation for them.

[4] The hearing of the eviction application commenced in this Court before Meer J. Whilst the matter was part heard and on 24 March 2006, a settlement agreement was reached between the parties. The salient provisions of the settlement agreement are the following:

“ 1. The Respondents and all persons occupying portion 2 of RIETVLEI 518 JR and portion 9 of PUNTLYF 520 JR [the occupiers] are to vacate the said properties on or before 8 JANUARY 2007 and to remove all their movable property on or before such date.

3. The onus is on the Respondents to identify and acquire alternative land with the assistance of the Department of Land Affairs and/or the local authority and it is noted that the applicants shall render all such assistance in this process as may be necessary.

4. The Applicants [the land owners] shall pay an amount of R60 000.00 (SIXTY THOUSAND RAND) as a contribution to the acquisition of the said alternative land. This amount shall be payable on demand to the conveyancing attorney after conclusion of a valid sale agreement in respect of such alternative land.

7. The Respondents are at present keeping 65 (sixty five) head of cattle on the said properties. The number of cattle shall be reduced to 35 (thirty five) head of cattle by no later than 31 May 2006 in order to prevent overgrazing of the said properties.”

The settlement agreement was made an Order of Court by Meer J on 24 March 2006.

[5] The occupiers did not vacate the property on 8 January 2007, as they undertook to do. The land owners then took out a warrant for their eviction. The warrant was forwarded to the eighth respondent, the Sheriff of Bronkhorstspruit, on 25 January 2007 for execution.

[6] On 1 February 2007 Mr Grobbelaar, the attorney acting for the land owners, received a telephone call from a certain Mr Dolamo, an employee of the Kungwini Municipality. He requested a deferral of the eviction to enable the Municipality to find alternative accommodation for the occupiers.

[7] On 5 February 2007 the occupiers applied to this Court, inter alia for an Order setting aside the warrant of eviction, rescinding the Court Order made on 24 March 2006 and declaring the settlement agreement to be null and void. The application was brought by the occupiers on the basis that their legal representatives had settled the matter without a mandate. The Kungwini Municipality provided financial assistance to the occupiers to bring that application.

[8] On 6 June 2007 the application to declare the settlement agreement null and void was heard by Meer J. It was dismissed with costs on 11 June 2007. On 27 June 2007, the warrant of eviction was re-issued. On the same day an attorney, Mr Van Rensburg, telephoned attorney Grobbelaar and said that he was acting on behalf of the occupiers as well as on behalf of the Department of Land Affairs; he indicated that he received instructions to investigate the possibility of an appeal against the judgment and order given by Meer J on 11 June 2007. He concluded that there was no prospects of success in an appeal. He asked that the eviction be held back until 31 July 2007, to arrange alternative accommodation for the occupiers. The eviction was deferred as requested.

[9] On 2 August 2007 the Kungwini Municipality lodged the present application. It prayed that the warrant of eviction be suspended pending the finalisation of an intended expropriation by the Municipality of the Puntslyf farm.

Stay of execution

[10] This Court has the power, under Rule 65(3) of the Land Claims Court Rules, to suspend the execution of any order for such period as it may deem fit. The Court will, generally speaking, only grant a stay of execution if real and substantial justice requires such a stay, or put differently, where injustice would otherwise be done. See Road Accident Fund v Strydom 2001 (1) SA 292 (C) at 304H/I and Strime v Strime 1983 (4) SA 850 (C) at 852 F/G.

[11] In the case before me the Municipality will, before a stay of execution can be granted, have to show:

(a) that it has the power to expropriate the land for the stated purpose;

(b) that the stated purpose of the intended expropriation is the true purpose; and

(c) that it has duly resolved to expropriate the land.

If the municipality cannot show that a valid expropriation is imminent, real and substantial justice will not require a stay of the warrant of execution. Even if an expropriation is forthcoming, it does not necessarily follow that the warrant of eviction will be suspended.

The power to implement the intended expropriation

[12] An expropriation cannot take place other than in terms of an authorising law. The Expropriation Act No 63 of 1963 authorises the Minister of Public Works as well as the Executive Committee of a Province to expropriate property for public purposes [section 2(1) of the Expropriation Act read with the definition of “Minister”]. No similar authority is given to a local authority. The Expropriation Act provides, however, that if a local authority has the power to expropriate (which it must gain from some other law), it must exercise that power mutatis mutandis in accordance with the provisions of the Expropriation Act [Section 5(2) of the Act].

[13] Section 79 (24)(a) of the Government Ordinance No 17 of 1939 (TVL) empowers a municipal council to expropriate land for-

“..the performance or discharge of any function or duty which the Council is in terms of any law authorised or required to perform or discharge.”

To the extent that the Kungwini Local Municipality relies on section 79(24)(a) for its power to expropriate, it must show that the expropriation will be undertaken to perform or discharge a municipal function or duty.

[14] The purpose of the intended expropriation is, according to the Kungwini Municipality, the protection of residents who are faced with eviction. This is demonstrated by a resolution, allegedly taken by the Council on 3 August 2007, which the municipality annexed to its papers. The resolution reads as follows:

“1. That the Executive Mayor be delegated and/or authorised, in terms of the provisions of Section 30(1)(a) of the Local Government Municipal Systems Act, 2000 (Act 32 of 2000) to take all necessary steps and to do whatever necessary to make decisions regarding the protection of the interests of its residents, in cases of public interest, where they are faced with eviction or pending an eviction, and for this purpose the Executive Mayor is entitled to make decisions regarding the expropriation of any property or portion thereof, or take any other decision for the protection of the residents’ interests, in terms of the Council’s legislative duties, for which purpose the resolution will constitute the policy framework within which the Executive Mayor is to act in these cases.

2. That this resolution also ratifies all decisions taken by the Executive Mayor in respect of the protection of the rights and interests of its residents, faced with an eviction or pending eviction.”

[15] I asked Ms Jansen van Nieuwenhuizen, who appeared on behalf of the Kungwini Municipality, what (in her submission) the purpose of the intended expropriation, is. She replied that it is for housing. I proceed to examine whether the Municipality has the power to expropriate the Puntlyf farm for housing purposes. Thereafter I will examine whether the Municipality may expropriate the farm to protect the occupants from being evicted.

Power to expropriate for housing purposes

[16] Housing is a municipal function. Section 9(3)(a) of the Housing Act No 107 of 1997 provides as follows:

“(3)(a) A municipality may by notice in the Provincial Gazette expropriate any land which is required by it for the purposes of housing development in terms of any national housing programme, if-

(i) it is unable to purchase the land on reasonable terms through negotiation with the owner thereof;

(ii) it has obtained the permission of the MEC to expropriate such land before notice of expropriation is published in the Provincial Gazette; and

(iii) such notice of expropriation is published within six months of the date on which the permission of the MEC was granted.”

It was not alleged that the Municipality has or anticipate getting permission from the MEC to expropriate the Puntlyf farm for housing development or a national housing programme. It also seems strange that the municipality would undertake a housing programme on a farm 20km out of town.

Power to expropriation to protect residents against eviction

[17] The issue whether a municipality may expropriate land for the purpose of protecting residents against eviction is more problematic. It might be argued that a municipality, being part of the state, is in terms of section 7(2) of the Constitution obliged to “respect, protect, promote and fulfil the rights in the Bill of Rights”. Such rights include the right of access to housing under section 26 of the Constitution, and also the right to property under section 25 of the Constitution. These rights might well be in direct conflict with each other. The resolution of such conflicts was discussed by Prof AJ van der Walt in his note “The State’s duty to protect property owners v the State’s duty to provide housing: thoughts on the Modderklip case”, published in vol 21 part 1 SAJHR 144-161.

[18] If the Kungwini Municipality has the duty to expropriate Puntlyf farm to protect the occupiers’ access to housing, it must also show that it has the power to do so. Section 25(2) of the Constitution does not bestow any power on an organ of state to expropriate land. The power must be derived from “law of general application”. The only “law of general application” to which I was referred is section 79(24)(a) of the Local Government Ordinance and section 9(3)(a) of the Housing Act.

[19] The Kungwini Municipality will have no duty (as envisaged in section 79(24)(a) of the Local Government Ordinance) and therefore no right to expropriate the Puntlyf farm to protect the occupiers’ constitutional right of access to housing unless imminent their eviction will deprive them of access to housing. Nor will the Municipality be entitled to expropriate the farm if the landowners’ right to property under section 25 of the Constitution outweighs the interests of the occupiers to remain in their houses on Puntlyf farm. I will revert to this later.

The stated purpose of an expropriation must be true purpose

[20] Where a statute authorises an organ of state to expropriate land for a particular purpose, the power to expropriate may only be used for that purpose. See Hardman v Administrator Natal 1975 (1) SA 340 (N) and Ferguson v Faviell 1 EDC 211 at 217. The purpose of the expropriation as stated by the expropriator must be authorised by law and must be true purpose.

[21] In LF Boshoff Investments v Cape Town Municipality, 1969(2) SA 256 (C), Corbett J (as he then was) said (at 268A) that-

“…where a municipality seeks to expropriate property ostensibly for a purpose permitted by the empowering legislation but in reality for an ulterior purpose not so permitted, the Court will set the purported expropriation aside on the ground that in relation to such ulterior purpose the power to expropriate does not exist (see Broadway Mansions (Pty.) Ltd. V. Pretoria City Council, 1955 (1) S.A. 517 (A.D.) at p.522).”

See also Olifantsvlei Township Ltd v Group Areas Development Board 1964 (3) SA 611 (T) at 614G.

[22] The purpose of an expropriation must be distinguished from the motive for the expropriation. In AECI Ltd and Another v Strand Municipality and Others 1991 (4) SA 688 (C) Marais J said (at 699 B-E)-

“ I am of course alive to the distinction between the purpose of the doing of an act and the motive for the doing of an act. However, I find Mr Burger’s suggestion that motives can never be relevant goes too far. Motive may serve to show that in a particular case the purpose of an act of expropriation is to further another purpose which is plainly ultra vires and which is so inextricably linked to the purpose of the act of expropriation that it infects with illegality the expropriation itself. A municipality which expropriates property in order to provide parking facilities for the patrons of a gambling casino which it intends to erect on its own adjoining land cannot be heard to say that, inasmuch as the provision of parking facilities is in abstracto a municipal purpose, its act of expropriation must be regarded as intra vires.”

[23] The principle is well illustrated by two Australian cases. In Werribee Shire Council v Kerr (1982) 42 CLR 1 a company laid a pipeline on private land. The owner of the land applied for a Court Order directing the company to remove the pipes. The municipal council thereupon proceeded to expropriate the land containing the pipeline, ostensibly for the purpose of providing a public road. The owner of the land disputed the validity of the expropriation on the ground that the real purpose of the council was not to provide a road but to allow the company to retain the pipeline. The High Court held the expropriation to be invalid.

[24] In the case of Prentice v Brisbane City Council (1966) St.R.Qd 391, the City Council resolved to expropriate land from the plaintiff for providing a roadway leading to a bridge over a river. A land development company intended to construct the bridge to provide access to land on the other side of the river where the company planned a new development. The plaintiff applied for an interdict to prevent the expropriation. The Supreme Court (per Mansfield CJ) held as follows:

“The Council’s main purpose in resolving that any of the plaintiff’s land were required was to assist the “developmental” plan of the company, notwithstanding that in a broad sense the interests of the city and its inhabitants were being served by the subdivision and the opening up of the lands on the southern bank of the river and by the essential concomitant of that subdivision namely, the provision of a bridge and access thereto. The Council had entered into an agreement with the company which in effect made the Council the agent of the company rather than that of the inhabitants in general, when it purported to put into operation its powers of resumption [ie expropriation] of the plaintiff’s land.” (my underlining)

The true purpose of the intended expropriation

[25] I have no doubt that, in casu, the true purpose of the intended expropriation is not to develop housing, but to prevent the imminent eviction of the occupiers. I will demonstrate this by what follows hereunder.

[26] It is evident from the history of the matter that the occupiers, who make up only three families, must have an unique relationship with the Kungwini Municipality. Not only did the municipality assist them financially to resist eviction, but when it appeared that their eviction has become inevitable, it resolved to expropriate the Puntlyf farm. It did so as a “last resort” because, according to Mr Smith, (the Municipality’s acting Director of Corporate Services) alternative accommodation could not be found for the occupiers.

[27] The occupiers are not within the class of indigent people to whom it could be expected that the municipality would direct their recourses for providing houses. Mr Mabena, the fourth respondent, keeps up to 65 heards of cattle on Puntlyf and Rietvlei farm. His cattle has taken over all the grazing. It appears from his own affidavit in the unsuccessful rescission application that he is a carpenter and a building contractor. According to the land owners, he has substantial investments in bank accounts. Mr Koleka, the fifth respondent, is in the fulltime employ of the Kungwini Municipality as a fire fighter. Mr Mahlangu, the sixth respondent, is according to the land owners employed at a nearby sand mine.

[28] The Kungwini Municipality does not explain why the occupiers cannot find accommodation elsewhere. In terms of the settlement agreement, they must receive R60 000.00 from the land owners as a contribution towards the acquisition of alternative land. Mr Smith, in paragraph 13 of the Municipality’s replying affidavit, alleges that the land owners-

“…being persons of considerable means, might find it difficult to contemplate the plight of indigent people facing the constant threat of being evicted from their home and hearth without any means whatsoever to fend for themselves. There is nothing sinister or untoward in Government providing assistance in these circumstances.”

The occupiers are not indigent people. If the Municipality had used the money it contributed towards the occupiers’ legal costs, together with the R60 000.00 the occupiers would get from the land owners, it would seem to me that the Municipality might well have been able to provide housing for them and their families. They are altogether 24 people.

[29] Attorney Van Rensburg, in his letter of 27 June 2007 addressed to the landowners’ attorneys, asked the landowners to hold the warrant of eviction over until 31 July 2007 to give the authorities time to arrange for alternative accommodation. He concluded his letter by the following telling remark:

“The problem seems to be the cattle for which the authorities must find place.”

In my view, the Municipality has no duty to find a place for the cattle.

[30] In a Memorandum to motivate a recommendation to the Executive Major of the Kungwini Municipality that the Puntlyf farm be expropriated, the Acting Director of Corporate services wrote as follows:

‘The Mabena family have been living on the abovementioned property since 1933. They were all born and brought up on the farm and have always treated it as their own. The land owner seeks the eviction of the Mabena family from the farm in terms of the Provision of Extension of Services of Tenure Act no 62 of 1997.”

[31] The 23 people allegedly affected by the imminent eviction are all members of the Mobena, Kokela and Mahlangu families. Mt Havenga, who appeared on behalf of the land owners, submitted that it has been demonstrated in affidavits filed in the previous proceedings that the Mobena and Koleka families are land invaders. Although Mr Mobena was born on the Puntlyf farm in 1951 he never worked on the farm. He left the farm when he was still very young. He moved back in 1998, at a time when there were no farming activities on the farm. He acted as if he was the owner, utilizing the entire farm for grazing his cattle. He also allowed Mr Koleka to erect his own house on the farm. Mr Koleka never worked on the farm and has never had lawful permission to live on the farm. Mr Mahlangu did work on the farm. His employment came to an end in 1997/1998, when the farming activities were abandoned. He refused to leave the farm. His family married into the Mobena family.

[32] The occupiers have a different version of the circumstances under which they occupied the Puntlyf farm. Yet they cannot deny that they are bound to a settlement agreement in terms of which they must vacate the farm and that since January 2007 they have been occupying the farm in defiance of a Court Order.

[33] The Kungwini Municipality knew, at least since January 2007, that the land owners are in the process of evicting the occupiers. Insofar as the municipality might consider itself duty bound to provide alternative accommodation to them, it does not disclose what (if anything) it has done to comply with that duty. It appears from the papers before me that the Municipality has taken a decision to expropriate another property, Portion 422 of the farm Zwavelpoort 373 JR, to establish a housing development on that farm. It does not attempt to show why the occupiers cannot be accommodated there.

[34] In my view the inference is irresistible that the true purpose of the Kungwini Municipality for deciding to expropriate Puntlyf farm is neither to provide housing nor to protect the occupiers’ constitutional right to housing. It is to make it possible for Mr Mabena and his associates to continue their illegal occupation of a large farm where they graze their cattle and which they regard as their own. Such an expropriation is not for a public purpose and not in the public interest. The Municipality has no power to expropriate Puntlyf farm for that purpose. Its decision to do so makes them (in the words of Mansfield CJ in the Bribare City Council case supra) in effect the agent of the occupiers rather than that of the inhabitants in general.

[35] I should ad that inference on what the true purpose of the expropriation must be, is supported by the following passage in paragraph 7.11 of the replying affidavit by Mr Smith, the acting Director of Corporate Services of the Municipality:

“I once again wish to emphasize that this application [to stay the eviction pending the expropriation of the farm], was lodged as a last resort, solely due to the fact that no alternative accommodation could be found for the occupiers.”

The cost of the expropriation and the compensation which will become payable to the land owners must surely exceed the costs of providing municipal housing to the three families by far.

The decision to expropriate Puntlyf farm

[36] Mr Havenga submitted that there was no proper decision by the Kungwini Municipality to expropriate the Puntlyf farm, for two reasons. Firstly, no proper decision was ever taken. Secondly, the provisions of the Promotion of Administrative Justice Act No 3 of 2000 (“PAJA”) was not complied with. I will deal with each of the reasons.

Has a proper decision been taken to expropriate Puntlyf farm?

[37] In paragraph 17.1 of the founding affidavit dated 2 August 2007, it is stated that a decision was made on 24 July 2007 to expropriate the Puntlyf farm. No resolution was attached. In the replying affidavit, Mr Smith alleged that the date “24 July 2007” is a “typographical error”, and that the correct date of the decision is 20 July 2007.

[38] The decision of 20 July was taken by the Executive Major of the Municipality. The Major, purporting to act in terms of a delegation by the Council contained in a resolution of 28 June 2007, decided that the following properties be expropriated:

“1. Portion 422 of the farm Zwavelpoort 373 JR;

2. Remaining extent of portion 2 (of portion of a portion 1) Rietvlei 518 JR. (Puntlyf)”

The resolution of 28 June 2007 and the delegation contained therein relate to a different property, viz portion 34 of the farm Kameelzynkraal 547 JR. There was no delegation of authority to decide on the expropriation of the Puntlyf farm.

[39] The mistake seems to have been realised by the Municipality after these proceedings have already been lodged. The attorney acting for the Municipality referring to the resolution of 28 June 2007 which had nothing to do with the farm Puntlyf, “requested that a more general resolution be formulated. The acting Municipal Manager recommended to the applicant’s council that the delegation to the Executive Mayor be extended to make decisions regarding the “protection of the interest of its residents in cases of public interest where they are faced with eviction or a pending eviction” and that, for this purpose the Executive Mayor be authorised to make decisions regarding the expropriation of any property. It was also recommended that decisions taken by the Executive Mayor “in respect of the protection of the rights and interests of its residents faced with an eviction or pending eviction” be ratified. On 3 August 2007, and in line with the recommendation, the Council took the suggested decision. Neither the recommendation nor the resolution refers to the farm Puntlyf.

[40] The “ratification” by the Council can only refer to the unauthorised decision taken by the Executive Mayor to expropriate the Puntlyf farm. As I have indicated above, that resolution has been taken on information which is vehemently disputed by the landowners. Furthermore, the delegation to the Executive Mayor is only in respect of cases where the protection of residents faced with eviction is in the public interest. I have already concluded that the public interest does not require the occupiers in this case to be protected from the imminent eviction.

Is the administrative action by the Kungwini Municipality procedurally fair?

[41] A decision by an organ or state to expropriate property constitutes administrative action which is subject to the provisions of PAJA. Section 3(1) and (2) of PAJA reads as follows:

“ (1) Administrative actions which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) a fair administrative procedure depends on the circumstances

of each case.

(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4) must give a person referred to in subsection (1) –

(a) adequate notice of the nature and purpose of the proposed administrative action;

(b) a reasonable opportunity to make representation;

(c) a clear statement of the administrative action;

(d) adequate notice of any right of review or internal appeal, where applicable; and

(e) adequate notice of the right to request reasons in terms of section 5.

[42] In the case of M & J Morgan Investments (Pty) Ltd v Pinetown Municipality, [1997] ZASCA 60; 1997 (4) SA 427 (SCA) at 439 D-G, Olivier J said the following in relation to a contention that the audi alteram partem rule has not been complied with before a decision to expropriate was taken:

“The rules of natural justice, of which audi alteram partem is one, form a cornerstone of administrative law. They

‘…facilitate accurate and informed decision-making; secondly they ensure that decisions are made in the public interests; and, thirdly, they cater for certain important process values’.

(Baxter Administrative Law at 538.) The audi alteram partem rule was said by Voet 2.4.1 (Gane’s translation) to ‘rest on the highest equity’. Ptahhotep in the 6^th Egyptian Dynasty (2300 – 2150 BC) laoded the rule (Baxter (op cit at 539) and coined the dictum:

“Not all one pleads for can be granted,

But a good hearing soothes the ear.’

Nevertheless, if the rules of natural justice are efficiently to serve the purpose for which they exist and if they are to retain their great legitimacy, they must be applied appropriately.”

[43] Southwood (supra, at p 52) particularise the duties of an expropriation authority under the audi alteram partem rule as follow:

“It is suggested that whether or not its authorising legislation lays down that the expropriatee must be given an opportunity to be heard before the expropriator makes its decision to expropriate, the expropriator should, first, give the expropriate a clear idea of the nature and extent of the property that he intends to expropriate. Secondly, he should give the expropriate notice of the factors which he intends to take into consideration when making his decision o expropriate. Thirdly, he should give the expropriate time, adequate in the circumstances of the particular case, in which to make representations to the expropriator before he makes the decision to expropriate.”

See also Purshotam, “The expropriatee’s right to a hearing before the decision is made to expropriate” 1994 vol III part 2 SALJ 237.

[44] It cannot be gainsaid that in this matter the land owners were not given an opportunity to object against the decisions (valid or not) taken by or on behalf of the Kungwini Municipal Council to expropriate the Puntlyf farm. As pointed out by Mr Havenga, many possible objections against the intended expropriation present themselves. I have already dealt with some of them in this judgement. They are, in all likelihood, further objections which the land owners will want to put forward.

Conclusion

[45] In summary, I repeat that I have come to the following conclusions:

(a) The Kungwini Municipality has the power to expropriate land for the development of housing, however, the Municipality has no intention to develop housing on the Puntlyf farm.

(b) The Kungwini Municipality has the duty to protect the right which its inhabitants have under the Bill of Rights, including their access to housing. The duty give them power, under section 79(24)(a) of the Local Government Ordinance, to expropriate land if it is in the public interest to do so.

(c) The true purpose of the intended expropriation is not to serve the public interest by protecting the occupiers’ right of access to public housing, but to assist the three families comprising to 23 occupiers to remain in full occupation of a farm of 171 ha which they do not own, and which they have undertaken to vacate.

(d) It is doubtful whether a proper resolution has been passed by the Kungwini Municipal Council or by its Executive Major to expropriate the Puntlyf farm.

(e) The Kungwini Municipality did not give the land owners an opportunity to make representations before deciding to expropriate; its failure to do so makes any decision to expropriate Puntlyf farm contentious.

[46] It is doubtful whether the Kungwini Municipality will, on the resolutions as they now stand, proceed with the expropriation of the Puntlyf farm. The Municipality gave no intimation of when it anticipates that the resolutions to expropriate will be implemented. Even if the municipality should proceed with the expropriation of the Puntlyf farm, such expropriation will in all probability be found to invalid. The land owners have already obtained an Order from this Court that the occupiers must vacate the farm. The interest of justice does not, in my view, require that the land owners be denied full enjoyment of their ownership rights in the farm any longer. If follows that the application to stay the warrant of execution cannot succeed.

[47] It is practice in this Court not to make cost orders except in exceptional circumstances. The circumstances of this case are, however, exceptional. The Kungwini Municipality assumed the role of a protagonist of the occupiers’ cause, and took decisions which cannot be justified in relation to its accountability towards its other inhabitants.

[48] I come to the land owners’ counter application. The first two prayers are for orders against the Kungwini Municipality. Mr Havenga indicated, during argument that the land owners are not proceeding with those prayers. I therefore need to say no more against them. The third prayer is for an Order against the occupiers, prohibiting misbehaviour on their part. The prayer is based on the premise that the occupiers will, at least for the time being, remain on the Puntlyf farm. If the warrant for their eviction is not stayed, the necessity for the prayer will fall away. The forth and fifth prayers are for an Order that the occupiers be found guilty of contempt of Court and be committed to prison. Mr Havenga did not press for an Order on these two prayers. I am, in any event, not convinced that the occupiers intentionally defied the Court Order to vacate.

[49] As in the case of the occupiers, the land owners ask for orders against the Kungwini Municipality which were not sufficiently motivated, and which were not proceeded with. The land owners should pay the Municipality’s costs in respect thereof. The occupiers did not participate in the proceedings and did not ask for a cost order against the land owners.

[50] For the reasons set out above, I make the following order:

1. The main application is dismissed;

2. The applicant must pay the first, second and third respondents’ costs in the main application;

3. The counter application is dismissed; and

4. The first, second and third respondents, jointly and severally, must pay the applicants’ costs in the counter application.

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A GILDENHUYS

JUDGE OF THE LAND CLAIMS COURT

Appearances:

For the applicant:

Ms N Jansen van Nieuwenhuizen

Instructed by

Govender Attorneys

Bronhorstspruit

For the first, second and third respondents

Mr H S Havenga

Instructed by

Grütter & Grobbelaar Attorneys

Pretoria

No appearance by the fourth, fifth, sixth, seventh and eight responders

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