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Mahlangu and Others v Lanseria Commercial Crossing (Pty) Ltd and Another (LCC 179/2010) [2011] ZALCC 16 (30 March 2011)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA



CASE NUMBER: LCC 179/2010


In the matter between:


SANNAH MAHLANGU …..........................................................................1st Applicant

ZANDILE MAHLANGU ….........................................................................2nd Applicant

MONICA MAHLANGU …...........................................................................3rd Applicant

LETTIE MAHLANGU ….............................................................................4th Applicant

ELIAS MAHLANGU …..............................................................................5th Applicant

FANA MAHLANGU …...............................................................................6th Applicant

TULANI MAHLANGU …............................................................................7th Applicant

SIBONGILE MAHLANGU ….....................................................................8th Applicant

MISHACK MAHLANGU …........................................................................9th Applicant

SOLLY MAHLANGU …............................................................................10th Applicant

ROSINAH MAHLANGU ….......................................................................11th Applicant

and

LANSERIA COMMERCIAL CROSSING (PTY) LTD ….........................1st Respondent THE SHERIFF, RANDBURG …............................................................2nd Respondent

JUDGMENT

C E LOOTS AJ


[1] An urgent application was brought before this court for an interim order permitting the Applicants to return to the homestead of the First Applicant pending the finaiization of the main application, which claims an order in the following terms:

a) Declaring that the eviction of Second to Eleventh Applicants on 1st October 2010 was not sanctioned by the court order made by the Land Claims Court under case number 31/2009 on 3rd June 2010;

b) Declaring that the partial demolition of the homestead of the First Applicant on 1st October 2010 was not sanctioned by the court order dated 3rd June 2010 made under case number 31/2009;

c) Ordering the First Respondent to rebuild the homestead as it existed prior to 1 October 2010;

d) Costs of suit.

On the day of the hearing I granted interim relief which permitted the applicants to return to the homestead pending final determination of the matter. This judgment sets out my reasons for granting such relief.


[2] in March 2009 the First Respondent, a company which will be referred to as 'the landowner', instituted application proceedings in this court, under case number LCC 31/2009, claiming eviction of a large number of occupiers of specified land in Lanseria, Gauteng. On 3rd June 2009 a settlement agreement between the parties was made an order of court.


[3] in terms of clause 1 of the agreement of settlement the parties agreed that 'all the unlawful occupiers of the immovable propertiea referred to in the notice of motion (known as the Mzala settlement) agreed to be relocated to a property known as Lion Park', which had been made available by the Johannesburg Municipality.


[4] Paragraph 9 of the agreement recorded that the legal representatives of the occupiers had made reasonable effort to ascertain the identities of all the occupiers on the site and that the adults were identified in terms of Annexure D to the agreement. It was further recorded that there were approximately 340 households on the property and that should further people be identified as occupants as at the date of the order, their identities would be communicated to the landowner prior to the date of relocation.


[5] Paragraph 10 of the agreement provided that 'the long-term ESTA occupiers and pre 1997 ESTA occupiers' were those persons listed in Annexure E to the settlement agreement. In terms of paragraph 10 of the agreement of settlement the land owner undertook to 'enter into bona fide negotiations to settle the application against the ESTA tenants as soon as is practically possible'.


[6] In terms of paragraph 12 read with paragraph 7, the land owner was entitled to relocate all occupants of the Mzala settlement to Lion Park 'on the date of relocation', which date could be any date after 23rd June 2010, the land owner to give 48 hours notice of the relocation.


[7] It is common cause that the relocation of most of the occupiers took place during July 2010, but that the Applicants did not relocate. The first Applicant explains in paragraphs 35 and 36 of the founding affidavit that the reason why they did not relocate was that no agreement had been reached about the compensation to be paid to them.


[8] The First Applicant is a woman who states in the founding affidavit that she is ninety seven years of age. The Second to Eleventh Applicants are all adults who are her children or grandchildren. Only the First Applicant is listed as an ESTA occupier in the list which is apparently Annexure E to the settlement agreement. She is listed as having been an occupier of the property in question since 1943.


[9] On 1st October 2010 the Second to Eleventh Applicants were evicted from the property onto the side of a road adjacent to the property, in terms of a warrant of execution, and the portion of the homestead which they had been occupying was demolished. The First Applicant was not evicted, but explains in her affidavit that she joined her family at the side of the road because she could not stay alone in what was left of her homestead.


[10] The issue which needs to be decided for the purpose of this application is whether the applicants have satisfied the requirements for interim relief in the nature of an interdict. Traditionally applicants for an interim interdict must establish:

a) a prima facie right to the relief claimed, even though open to some doubt;

b) a well-grounded apprehension of irreparable harm if the interim relief is not granted and the applicant ultimately succeeds in establishing the right;

c) a balance of convenience in favour of granting the interim relief; and

d) no other satisfactory remedy.1

Mr Hollander informed the court that the First Respondent did not rely on any balance of convenience in its favour and that its opposition was based squarely upon the assertion that, taking into account the agreement of settlement between the parties in the eviction application, the Second to Eleventh Applicants have no legally enforceable right. The first requirement of the traditional test, as set out in (a) is thus what is in issue.


[11] In Chief Nchabeleng v Chief Pasha2 Dodson J observed that the decisions of our courts with regard to the standard of proof for the requirement 'prima facie established though open to some doubt' were not harmonious and therefore preferred the following approach, which was enunciated by the House of Lords in American Cyanamid C v Ethicon Ltd3 and is now generally followed by the English Courts and courts in other Commonwealth jurisdictions:

The use of such expressions as "a probability", "a prima facie case" or "a strong prima facie case" in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. This Court no doubt must be satisfied that the claim is not frivoious or vexatious; in other words, that there is a serious question to be tried,

It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.'


[12] Whichever test is applied, it is clear that the applicants must establish a basis on which they may be entitled to permanent relief. The right asserted is that they are occupiers of (and in terms of the Extension of Security of Tenure Act, Act 62 of 1997 (ESTA) and may be evicted only in terms of that Act.


[13] The First Respondent argues that the First Applicant has no right to the relief claimed because she has not been evicted. The reason why she was not evicted is that she was listed as an ESTA occupier in the agreement. In terms of section 6(2)(d) of ESTA, an occupier has the right to family life in accordance with the culture of that family. If the First Respondent accepts that the First Applicant is an ESTA occupier, then there is nobasis on which it can claim that she has no right challenge the eviction of her family members or the demolition of the family homestead.


[14] The answer to the question whether the Second to Eleventh Applicants have a legally enforceable right depends upon whether they have a right to remain on the property, either as family members of the first applicant or as occupiers in their own right. If they do have such a right, then the second question which arises is whether the settlement agreement negated that right.


Do the Second to Eleventh Applicants have a prima facie right to remain on the property , or is there at least a serious issue to be tried in this respect?


[15] Section 6(2)(d) of ESTA gives an occupier the right to family life in accordance with the culture of that family. It has been held that family members of a person who occupies with the consent of the landowner or person in charge are not occupiers in their own right. Their right of occupation derives from the person who occupies with the consent of the landowner.4 As long as the right of occupation of the person who occupies with consent has not been terminated that person's family members may not be evicted. Thus, if the First Applicant is an ESTA occupier and her right of occupation has not been terminated in accordance with ESTA, her family members who derive their right of occupation through her have a right to remain on the property and cannot be evicted.


[16] There is also the possibi lity that the Second to Eleventh Respondents may have an independent right of occupation. They are all alleged to be adult children or grandchildren of the First Respondent. If they occupied with the consent of the previous owner or person in charge of the land then they acquire an independent right of occupation.


[16] I am satisfied that the facts disclosed in the papers indicate that the Second to Eleventh Applicants may be occupiers who are protected by the provisions of ESTA and that a prima facie right to remain on the property, although open to some doubt, has been established. The papers need to be supplemented to place all the facts before the court in order that a final decision can be made, but this is clearly a serious issue to be tried.


Does the settlement agreement negate any rights of occupation in terms of ESTA that the Second to Eleventh Applicants may have?


[17] The First Respondent's case is that the eviction of the Second to Eleventh Applicants was lawful because it was done in accordance with the settlement agreement which was made an order of court in the eviction application. The deponent to the First Respondent's answering affidavit says the following in paragraph 10.4:

'10.4.1. Only the First Applicant is specified as a Long Term (ESTA) occupier.

10.4.2. None of the Second to Eleventh Applicants are named as Long Term Occupiers or ESTA Occupiers.

10.4.3. The Second, Third, Sixth, Seventh, Ninth, Tenth and Eleventh Applicants are in fact listed as 'OCCUPIERS', i.e. non Long Term (ESTA) Occupiers/non ESTA Occupiers, to be evicted with all the other OCCUPIERS if they were not relocated by eventually 15 August 2010.'

The first page of the settlement agreement reveals that the eviction application brought by the First Respondent was brought against the 'unlawful occupiers' of the land in question, yet it was brought in the Land Claims Court in terms of ESTA.

[18] The legislature has enacted two separate pieces of legislation which deai with eviction of persons from land. In terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act5 (PIE) an unlawful occupier6 may be evicted. The Land Claims Court has no jurisdiction to grant eviction orders in terms of PIE. In terms of ESTA7 the Land Claims Court has jurisdiction to grant eviction orders in respect of occupiers of agricultural land8 who occupy with the consent of the landowner or person in charge or have another right in law to occupy.9 Such occupiers continue to be lawful occupiers until they fail to vacate the land after being ordered to do so by a competent court. The High Court has no jurisdiction to grant orders in terms of ESTA,10.unless the parties have consented thereto11. What this means is that, where the land in question is agricultural land and there are a large number of people residing upon that land, the party who seeks to evict must determine which persons are lawful occupiers in terms of ESTA and which of them are unlawful occupiers as defined in PIE. The eviction of the unlawful occupiers must be sought in the High Court in terms of PIE, even if the land is agricultural. The eviction of the lawful occupiers must be sought in the Land Claims Court terms of ESTA, unless the occupiers have consented to the jurisdiction of a division of the High Court.


[19] On the papers which are before the court in this application it appears that in the eviction application the First Respondent proceeded in the Land Claims Court in terms of ESTA, yet the occupiers were cited as 'unlawful occupiers'. It further appears that in terms of the settlement agreement an attempt was made to separate out the ESTA occupiers by listing them separately and providing that the landowner would negotiate with them. The issue to be decided for the purpose of the interim interdict is whether the Second to Eleventh Applicants, if they are ESTA occupiers, waived their rights in terms of the settlement agreement.


[20] Section 25(1) of ESTA reads as follows:

The waiver by an occupier of his or her rights in terms of this Act shall be void, unless it is permitted by this Act or incorporated in an order of a court.'

In this case the settlement agreement was made an order of court, but that does not mean that Second to Eleventh Applicants, if they are occupiers protected by ESTA, necessarily waived their rights in terms of ESTA. Whether they did so must depend upon an interpretation of the agreement.


[21] Counsel for the First Respondent argued for a literal interpretation of the settlement agreement, maintaining that it is clear and unambiguous. I cannot accept that the agreement is clear and unambiguous, and that a literal approach to its interpretation is appropriate. My reasons follow.


[22] The use of terminology relating to the occupiers in the agreement is inconsistent. Clause 1 states that 'all the unlawful occupiers' agreed to be relocated. Clause 12 states that the Applicant will be entitled to relocate 'all occupants of the Mzala settlement.' Clause 13 provides:

'13. Should any occupiers refuse to be relocated from or to vacate the immovable properties referred to in the notice of motion 30 ordinary days after the period of relocation or by 15 August 2010, whichever date is the later, the remaining occupants of the Mzala settlement shall be evicted, other than the ESTA tenants specified in clause 10 above.'

Clause 10 provides that '[t]he long term ESTA occupiers and pre 1997 ESTA occupiers' are those persons listed in annexure E.'


[23] The settlement agreement was signed and made an order of court on 3rd June 2010. I was told during the course of the argument that the signatures are those of the attorneys acting for the Applicant and Respondent. Clause 19 of the agreement provides that '[t]he Respondents' legal representatives will file Annexures D and E by 11 June 2010'. There is a filing notice dated 11th June 2010 under which 'Annexures C and D' are purportedly presented for filing. I was told that the filing notice should have referred to Annexures D and E. Two lists are attached to this filing notice. Neither is marked as being either Annexure D or Annexure E.


[24] The first list appears to be Annexure E and has two headings. The first heading is 'LONG TERM OCCUPIERS', which is explained in a footnote as referring to persons older than 60 and occupying longer than 10 years. Six persons, including the applicant, are listed under this heading. The ages of four of the six are reflected as being older than 60 years, The other two are simply listed as 'pensioners'. All are reflected as having taken up occupation before 4th February 1997. The First Applicant is reflected as having been an occupier of the land since 1943. The second heading is 'ESTA OCCUPIERS', which is explained in a footnote as 'Built own brick/mud house'. Three houses are listed. The first two are each stated to be occupied by a man and his girlfriend. The third is stated to be occupied by one woman.


[25] Following the list referred to in paragraph [24] above, on a new page, is a list simply headed 'OCCUPIERS', in which 246 people are listed by name. Each name is listed against a house number. Six of the persons who are the Second to Eleventh Respondents are on this list. The houses listed against their names are not the same as the house listed against the First Applicant's name. This list is presumably Annexure D, as referred to in the founding affidavit. Counsel for the First Respondent argued that Annexure D constituted a list of all the people who were liable to be forcibly evicted in terms of clause 13 if they did not voluntarily relocate and that it was a list of all the occupiers except those listed in Annexure E. If I were to accept this submission the lists would become a crucial factor in determining whether any or all of the Second to Eleventh Respondents were properly evicted.


[26] Unfortunately there is no evidence under oath as to who drew up the lists or on what basis people were listed. This is particularly problematic in view of the fact that the lists were not attached to the agreement at the time when it was signed and made an order of court, and the fact that it was the attorneys and not the parties who signed the agreement. The second part of Annexure E does not make any sense. The footnote which indicates that the heading 'ESTA OCCUPIERS' refers to persons who built their own brick/mud house is a clear indication that the person who drew up the list had no understanding as to the criteria for qualification as an ESTA occupier. In terms of the Act, the fact that a person built his or her own house is not a criterion in deciding whether a person is an ESTA occupier. The reference in paragraph 10 of the agreement to long term ESTA occupiers and pre 1997 occupiers also makes no sense. These categories of persons receive added protection in terms of ESTA, but anyone who occupies agricultural land with the consent of the owner or with some other right in law is an ESTA occupier.


[27] In view of all the uncertainties and anomalies which I have identified, I believe that it is unlikely that the agreement can be interpreted as constituting a valid waiver of the rights of any of the Second to Eleventh Respondents who may establish in due course that they are occupiers as defined in ESTA.


[28] Before leaving the topic of the agreement, I want to deal with another submission made by the counsel for the landowner, He submitted that the agreement defined for itself the meaning of an ESTA tenant by including in this definition only those people listed in Annexure E. This could never be so. The Act defines which occupiers it protects and no agreement can detract from this definition,


[29] The Applicants have accordingly established a prima facie right, though open to some doubt. The other traditional requirements for an interim interdict do not have to be considered because the First Respondent made out no case with regard to those requirements. On the alternative test, there is clearly a serious issue to be tried as to whether the Second to Eleventh Applicants are

ESTA occupiers.



[30] For these reasons, the following order was made:


  1. Non-compliance with the ordinary rules of this Court is condoned for reasons of urgency.

  1. Pending finalization of part 2 of this application, the Applicants are permitted to return to the homestead of the First Applicant which was partially demolished on 1 October 2010 and the Respondent is to allow and facilitate, and assist with if necessary, the erection of suitable tents or other temporary structures to replace the demolished portion of the homestead.

  1. The question of costs is reserved for determination after the hearing in respect of part 2 of the application.



ACTING JUDGE CE LOOTS

30th March 2011


1See Herbstein & van Winsen The Civil Practice of the High Courts of South Africa Vol 2 5th ed. (Juta 2009) by Cilliers, Loots & Nel at 1456 - 7; and Prest The Law & Practice of Interdicts (Juta 1996) at 50-51. With specific reference to the Land Claims Court, see Chief Nchabeleng v Chief Pasha 1998 (3) SA 578 (LCC) paras [6] - [11 ].

21998 (3)SA578(LCC)para[7],

3[1975] 1 All ER504 (HL).

4See Landbounavorsingsraad v Klaasen 2005 (3) SA 410 (LCC) paras [23] - [36].

5Act 19 of 1998.

6In terms of PIE an 'unlawful occupier' is defined as la 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 the Interim Protection of Informal Land Rights Act, 1996 (Act 31 of 1996)'.

7Section 17(1) read with s 20.

8Section 2(1) of ESTA provides;

'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 recognised as such in terms of any law, or encircled by such a township or townships, but including-

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

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

9See the Act's definition of 'occupier'.

10See Lebowa Platinum Mines v VHjoen 2009 (3) SA 511 (SCA) para [5],

11See sections 17(1} and (2) of ESTA.