---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: 49/2015

DATE: 04 MAY 2015

Before: The Honourable Mpshe AJ

In the matter between:

WILLIAM NTULI...........................................................................................................First Applicant

And

JAN G. C. GOUWS......................................................................................................First Respondent

ARIANO 424 CLOSE CORPORATION

T/A BULLFROGS NEST GUEST HOUSE...........................................................Second Respondent

In re:

WILLIAM NTULI...........................................................................................................First Applicant

And

JAN G. C. GOUWS......................................................................................................First Respondent

ARIANO 424 CLOSE CORPORATION

T/A BULLFROGS NEST GUEST HOUSE...........................................................Second Respondent

DEPARTMENT OF RURAL AFFAIRS...................................................................Third Respondent

CITY OF TSHWANE METROPOLITAN

MUNICIPALITY......................................................................................................Fourth Respondent

JUDGEMENT

INTRODUCTION

1. This is contempt of Court application emanating from an order of this Court granted on the 08 April 2015.

BACKGROUND

2. Applicant initiated an application on an urgent basis against first to fourth respondents. The applicant sought relief in the following terms:

The first and second respondents are directed to show cause on or before a date to be set by the Honourable Court why an order should not be granted in the following terms: -

2.1 That the first and second respondents be compelled to restore the status quo ante forthwith in respect of the applicant's possession of the room in the brick house that comprises the applicant's home, (marked "H" on the attached diagram, annexure "A" to the notice of motion);

2.2 That the first and second respondents, including their agents and or employees, be interdicted and restrained from evicting the applicant from "H" referred to above, without a court order, or otherwise disturbing his peaceful use and possession of "H";

2.3 In the alternative to 2.1, to the extent necessary, that the first and second respondents be ordered to ensure that the applicant is forthwith provided with a habitable dwelling, affording the applicant necessary shelter, privacy and amenities equivalent to those which he previously possessed.

3. A rule nisi was then issued on 8 April 2015 ordering prayers 2.1, 2.2 and

2.3 to be operative immediately pending the finalisation of the matter

(Interim Order).

4. It is the non-compiiance with the Interim Order that then led to this

interlocutory application.

5. The defence of the first and second respondents is that:

(a) This Court lacks jurisdiction to adjudicate on the matter;

(b) Impossibility to restore occupation; and

(c) Inability to comply with the court order due to absence by first respondent.

JURISDICTION

6. This Court derives its jurisdiction from section 2(1) of the Extension of

Security of Tenure Act 62 of 1997 (ESTA).

"2. Application and implementation of Act. -(1) Subject to the provisions of section 4, this Act shall apply to all land other than land in a township established', approvedproclaimed or otherwise recognised as such in terms of any law, or encircled by such a township or townships..."

7. In the Supreme Court of Appeal (SCA) decision the following was said^[1]:

"ESTA and PIE were adopted with the objective of giving effect to the values enshrined in ss 26 and 27 of the Constitution. The common objective of both statutes is to regulate the conditions and circumstances under which occupiers of land may be evicted. The main distinction is that broadly speaking ESTA applies to rural land outside townships and protects the rights of occupation of persons occupying such land with consent after 4 February 1997, whilst PIE is designed to regulate eviction of occupiers who lack the requisite consent to occupy. Occupiers protected under ESTA are specifically excluded from the definition of 'unlawful occupier' in PIE. An order for the eviction of occupiers may be granted under ESTA by a competent court on just and equitable grounds; having regard to the different considerations applicable in each instance. The Land Claims Court is a specialist tribunal established by s 22 of the Restitution of Land Rights Act 22 of 1994 and enjoys jurisdiction, subject to ss 17, 19, 20 and 22 of ESTA, to deal with cases determined under ESTA. It follows> therefore, that if the land was occupied with consent, either express or tacit, the jurisdiction of the High Court to deal with it is excluded in the absence of consent to its jurisdiction

8. It is clear from the above decision that the Land Claims Court will have jurisdiction to adjudicate on eviction matters wherein a person occupies another's land with the required consent albeit tacit or express of the owner of the land or person in charge of the land as provided for in section 2(1) of ESTA as "ail land other than land in a township ..."

9. In casu it is not in dispute that the property Portion 51 of the farm Kleinfontein 368 is not a land in an established township. It is further not in dispute that the applicant occupied the said property with the consent of the first and second respondents. The logical conclusion is therefore that this Court is clothed with jurisdiction to hear the matter.

10. There is no evidence before me that the said consent was ever terminated by the first and second respondents in accordance with the provisions of section 8 of ESTA which provides:

"8. Termination of right of residence. (1) Subject to the provisions of this section, an occupier's right of residence may be terminated on any lawful ground' provided that such termination is just and equitable, having regard to all relevant factors and in particular to -

(a) the fairness of any agreement, provision in an agreement, or provision of law on which the owner or person In charge reiies;

(b) the conduct of the parties giving rise to the termination;

(c) the interests of the parties, including the comparative hardship to the owner or person in charge, the occupier concernedand any other occupier if the right of residence is oris not terminated;

(d) the existence of a reasonable expectation of the renewal of the agreement from which the right of residence arises, after the effluxion of its time; and

(e) the fairness of the procedure followed by the owner or person in charge, including whether or not the occupier had or should have been granted an effective opportunity to make representations before the decision was made to terminate the right of residence."

11. The defence of jurisdiction is premised on the fact that the applicant was not resident or occupying the said premises at time of the eviction. It is alleged that applicant has not occupied the premises for almost one (1) calendar year.

12. This submission seems to suggest that applicant had abandoned the premises of his own accord. However, the premises at time of eviction still had furniture of the applicant in the form of a bed, a fridge, an older fridge, a microwave and a cupboard. It may be that the premises were dusty and had spider-webs but this is no way an indication that applicant had abandoned occupation of the premises, the opposite actually holds.

13. I find that the eviction of the applicant is unlawful and contrary to the provisions of section 9(1) of ESTA. Section 9(1) provides:

"9. Limitation on eviction. ~(1) Notwithstanding the provisions of any other law, an occupier may be evicted only in terms of an order of court issued under this Act/'

14. The ESTA legislation is inter-alia passed ^/{to regulate the eviction of vulnerable occupiers from land in a fair mannerwhile recognising the right of land owner to apply to Court for an eviction order in appropriate circumstances."

15. The submission by Counsel for the respondents that this Court had no jurisdiction over the matter is misleading and stands to be rejected.

IMPOSSIBILITY TO RESTORE OCCUPATION

16. The respondents submit as follows to the order of Court to restore occupation:^[2]

"38. It is impossible to restore the applicant in possession of the room in question. Two individuals currently reside in it I had to move them into the room as they were staying in a structure that is not really suitable for human habitation, especially with the winter that is soon to start

39. These two individuals in the room are occupiers in terms of ESTA Act If the second respondent and I have to restore the applicant into the room we will firstly have to institute and finalise eviction proceedings against the current occupiers of the room who unlike the applicant have a legal right to be in the room.

42. If we have to erect a structure, building plans will first have to be drawn and approved by the municipality. This could take months if not years to complete.

43. Only thereafter can construction commence. This will take another couple of months or even years."

17. The tone of these paragraphs is quite unfortunate in the face of the interim Order dated 8 April 2015.

18. I do not think it is the duty of this Court to advice a defaulter as to how to remedy the situation or put right the wrong done. This Court in its interim Order did not prescribe the type of structure to be made available for habitation by the applicant. Wallis JA Schoeman AJA said^[3]:

"[8] Having said that, the municipality consented to the court making an order in those general terms. That obliged it to make serious good-faith endeavours to comply with it. That is what we are entitled to expect from our public bodies. If it experienced difficulty in doing so then it should have returned to court seeking a relaxation of its terms. If there were a dispute between them and the appellants regarding the scope of the order and what needed to be done to comply with it, it was not appropriate for the municipality to wait until the appellants came to court complaining of non- compliance in contempt proceedings. It should have taken the initiative and sought clarification from the court. Its failure over a protracted period to take these steps is to be deprecated."

19. This defence is of no substance and is distasteful. I do not find any form of impossibility to comply with the Interim Order.

INABILITY TO COMPLY WITH INTERIM ORDER DUE TO ABSENCE OF FIRST RESPONDENT

20. It is common cause that at the time of issuing of the main application and the resultant Interim Order, first respondent was out of the country and only returned on the 17 April 2015 having left the country on the 7 April 2015.

21. In a letter from attorneys Van Wyk Theron Inc. dated 9.4.2015 annexure "JGC 4", the following is stated:

"We nevertheless tried to contact MrJ Gouws and managed to get hold of him telephonically. He is out of the country and will only be returning to South Africa on 17 April 201S. We informed him about the application.

in light of Mr Gouws's absence he will probably not be able to comply with the interim Order. This is however said without writer having instructions from Mr Gouws and/or the second respondent

In trying to assist the Honourable Court and Mr Gouws, and without having any instructions from Mr Gouws or the second respondent to that effect, we request that the dates set out in the directions of 8 April 2015 be amended accordingly for Mr Gouws to return and have a reasonable time to answer to the allegations"

22. As a result of the contents of the letter, the directives were then accordingly amended as per annexure "JGC 5". The notice of urgent application for contempt of court was only issued on the 15 April 2015.

23. It is trite law that the defaulter must have failed to comply with the court order wilfully and with mala-fide.

24. The SCA^[4] again stated the following:

"Contempt of court

[16] Although some punitive element is involved, the main objectives of contempt proceedings are to vindicate the authority of court and coerce litigants into complying with court orders. The foundation and bases for a conviction of contempt of court have been authoritatively set out in Fakie NO v CCll Systems (Pty) Ltd."

25. In casu respondents have given a reasonable explanation as to non- compliance with the Interim Order, The non-compliance is void of wilfulness and mala-fide,^[5]

26. In the absence of wilfulness and mala-fide, I cannot find the respondents guilty of contempt of Court. However, the Interim Order is still of force and effect and has to be complied with,

27. I consequently order as follows:

(a) Contempt of Court application is dismissed.

(b) First and second respondent are to comply with the Interim Order dated 8 April 2015 within seven (7) days from date of this judgement.

(c) Costs of this application will be argued and determined on the finalisation of the main application.

MJ MPSHE

Acting Judge in the Land Claims Court

---