---

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

CASE NO: LCC 199/12

DATE: 02 OCTOBER 2015

In the matter between:

ALEXANDER WERNER ZYBRANDS N.O.................................................................First Applicant

ROUVIER ZYBRANDS N.O......................................................................................Second Applicant

ANNALIZE DUVENHAGE N.O..................................................................................Third Applicant

(In their capacity as trustees of the Alexander

Rouvier Trust IT 11402/98

And

THE OCCUPANTS, REMAINDER PORTIONS 2

AND 9, FARM 143, DIVISION PAARL RD,

WESTERN CAPE........................................................................................................First Respondent

DRAKENSTEIN MUNICIPALITY........................................................................Second Respondent

MINISTER OF LAND AFFAIRS AND RURAL

DEVELOPMENT.......................................................................................................Third Respondent

Before: The Honourable Canca AJ

Delivered on: 02 October 2015

JUDGMENT

INTRODUCTION

1] On 2 September 2015 I issued an order in the following terms:

“Having heard Counsel and having perused the parties’ written submissions as well as the various oral submissions made during the face-to-face conference held on 1 September 2015, it is ordered that:

1. The date of 13 August 2015 (contained in paragraph 1 of the court order dated 31 July 2015) for the eviction of the first respondents from the property known as Remainder Portions 2 and Erf [3…..] [W……..], [P…..] Road, Western Cape, and Erf [3…..] [W…….], Western Cape, is extended until 14 October 2015;

2. If the first respondents have not vacated the property known as Remainder Portions 2 and 9, Farm 146, Division Paarl Road, Western Cape and Erf [3……] [W……..], Western Cape, the sheriff for the district is authorised to evict them and all persons who occupy through them on 15 October 2015 or on any date thereafter;

3. The second respondent shall pay a contribution to the applicants’ costs in this application for an extension in the amount of R 40 000.00 (forty thousand rand).”

[2] The first respondent has now requested reasons for that order, which reasons I set out below.

THE PARTIES

[3] The first to third applicants, Alexander Werner Zybrands N.O; Rouvier Zybrands N.O. and Annalize Duvenhage N.O. are cited herein in their respective capacities as trustees of the Alexander Rouvier Trust IT [1…….] (“the Trust”). The Trust is the owner of the farm Soetendal (“the farm or the property”).

[4] The first respondent consists of 23 families who occupy six structures on the farm (“the occupiers”). These structures are, in turn, sub-divided into 22 individual units. The occupiers are approximately 115 in number.

[5] The second respondent, the Drakenstein Municipality, is the metropolitan municipality within whose area of jurisdiction the farm is situated.

[6] The third respondent, the Minister of Land Affairs and Rural Development, who was joined as an interested party to these proceedings at a later stage, chose to abide the decision of the Court (“the Department”).

BACKGROUND FACTS

[7] Alexander Werner Zybrands, a farmer who had relocated from the Free State to farm in the Western Cape, bought the property on behalf of the Trust, at a public auction on 26 October 2011. The farm had previously been owned by an entity that was placed into final liquidation by the Western Cape High Court.

[8] The occupiers were mostly employed by the previous owner of the property and were found on the farm by the applicants when the Trust took occupation of the farm. None of the occupiers took up employment with the applicants, save for two of them and a retiree. The applicants did not seek the eviction of these 3 occupiers who are living on the property with their permission.

[9] When the applicants failed to convince the occupiers to either work for the Trust or to vacate the property, the applicants launched eviction proceedings in terms of the Extension of Tenure Act 62 of 1997 (“ESTA”) in November 2012.

[10] The occupiers opposed their eviction and then launched an interlocutory application seeking, inter alia, a process of meaningful engagement with the parties and in particular, the Municipality. That application was not opposed and an order in the terms sought, was granted on 23 June 2014.

[11] Following an extensive engagement process, the Municipality made an initial proposal in terms of which the occupiers would, subject to certain conditions, be moved to a property known as Erf [8……..] [V……..], [J……..], [P…….] (“[V……….]”). This proposal was rejected by the occupiers.

[12] Various further meetings and pre-trial conferences were then held by the parties, which resulted in:

[12.1] the Municipality now offering the occupiers emergency housing kits which would be erected, as a temporary measure, on land identified by the applicants on the farm pending their relocation to [V……..]. This proposal was also rejected by the occupiers, mostly on the basis that the identified land on the farm was not serviced;

[12.2] the Department being joined as a party to the proceedings in order to assist the Municipality in providing emergency accommodation in compliance with its statutory obligations;

[12.3] the applicants, on the occupiers rejecting the Municipality’s proposal referred to in 12.1 above, agreeing to allow the occupiers to remain on the farm pending their relocation to [V…….] upon an agreed date. The applicants also proposed a contribution of R 50 000.00 (fifty thousand rand) to the occupiers in order to assist in securing a pre-paid electricity supply to their dwelling units on the farm. These proposals by the applicants found favour with both the occupiers and the Municipality.

[13] At the hearing of the eviction proceedings, which took place on 28 November 2014, I issued an order, following agreement amongst the parties on its wording, the relevant portions, for purposes of this judgment, read as follows:

“6] First respondent and all those holding title under them and / or occupying (hereinafter collectively referred to as “the occupants”) the properties known as the remainder of portions 2 and 9 of farm 146, division Paarl Road, Western Cape, as well as Erf [3……] [W……], Western Cape (“the property”) shall (subject to clause 7 below) vacate the property by no later than 31st of July 2015, failing which the sheriff of the court is authorised and directed to evict them therefrom.

7] Upon the occupants vacating / being evicted from the property as set out above, they shall relocate to temporary / emergency housing units which the second respondent shall erect and which shall comply with the specifications in part 3 of the National Housing Code, with access to Municipal services including water, electricity, refuse removal and ablution facilities in the proposed settlement known as [V………] or to an alternative emergency housing development. In the event that due to unforeseen circumstances, the [V…….] emergency housing development or an alternative emergency housing development is not developed by 31 July 2015, the parties may by agreement approach this Court for an order of extension of the date referred to in paragraph 6, failing which the second respondent may apply to this Court, with notice to all the parties, for an extension of the date.”

Hereinafter called “the November 2014 order.”

[14] The Municipality, acting in terms of paragraph 7 of the November 2014 order, launched an application for an extension of the eviction date and the date for the provision of emergency alternative accommodation until 13 August 2015. The Municipality also sought a meeting where it would endeavour to persuade the applicants and the occupiers to agree to an amendment of the November 2014 order and, failing agreement, to apply for a variation of the November 2014 order. This application was not opposed and I granted the order prayed for, on 31 July 2015 (“the 31 July 2015 order”).

[15] At the meeting held in terms of the 31 July 2015 order, the Municipality informed the parties that:

[15.1] [V…..] was no longer available to house the occupiers;

[15.2] an alternative emergency housing development (“the Gouda development”) where the occupiers could be housed would be available for occupation by them on or before April 2016; and finally,

[15.3] it did not have any other alternative serviced land available to house the occupiers as a group.

[16] The applicants opposed any further extension of the eviction date beyond the 13th August 2015 contained in the 31 July 2015 order. The occupiers, whilst not opposing the extension, refused to be split up, insisting on being relocated as a group.

[17] The Municipality then launched this application for the extension of the eviction date and the date for the provision of emergency accommodation until 30 April 2016. The application was opposed. It is worth noting that, although entitled to do so in terms of the 31 July 2015 order, the Municipality did not in its papers apply for a variation of paragraph 7 of the November 2014 order.

[18] On the date of the hearing of the application, the Municipality, for the first time, proposed that, upon the occupiers being evicted, it would supply the occupiers with emergency housing kits complying with the National Housing Code and house them on portions of land in serviced sites within its area of jurisdiction.

[19] Because the legal representatives of the occupiers had to take instructions on this new proposal, the matter could not proceed and was postponed. I also asked the parties to furnish me with written submissions as to whether I could vary the November 2014 order in order to give effect to the Municipality’s new proposal.

DISCUSSION

[20] It is important, at the outset, to remind ourselves that, both the November 2014 and the 31 July 2015 orders were issued by agreement amongst the parties. Therefore, the eviction dates in those orders and the area of relocation as well as the type of the temporary emergency housing were not imposed on the parties by the Court.

[21] The Municipality has been aware of this matter since its launch in November 2012. Therefore it is reasonable to expect that it should, given its legal obligation to do so, have made adequate and timeous provision to house the occupiers. See City of Johannesburg Metropolitan Municipality v Blue Moonlight Prop 39 (Pty) Ltd 2012 (2) SA 104 (CC) at paragraph 63 – 67 on a municipality’s obligations in this regard. However, even if for reasons that do not appear from any of the papers, the Municipality somehow thought that the applicants and occupiers would settle their differences amicably, it was clear, at least in November 2014 that it was obliged, in terms of the November 2014 order to provide alternative accommodation to the occupiers within approximately 8 months from the date of that order.

[22] In its founding affidavit in support of an extension of the date for the provision of emergency housing until 2016, the official in charge of Human Settlement at the Municipality avers that relocating the occupiers to [V…….] is not feasible within the time frames set out in the November 2014 and the 31 July 2015 orders. This was, it is averred, due in the main, to:

a) problems associated with the provision of bulk services and, in particular, storm water and water services as well as obtaining the funding and regulatory approvals thereof;

b) the relocation of small scale farmers presently occupying [V…….]

[23] It is clear from the aforementioned founding affidavit that, despite the problems that allegedly manifested themselves during early 2015 regarding [V……], it was highly unlikely that [V……] would have been ready for occupation by the occupiers by the dates mentioned in the November 2014 and 31 July 2015 orders.

[24] It is also rather worrisome that, although being aware that the time frames set out in the November 2014 order were unlikely to be met, the Municipality did nothing to inform the other parties that there were obstacles to giving effect to the November 2014 order. The first indication of this issue only came to light during a telephonic conference initiated by me on 30 July 2015 in order to ascertain whether the parties were ready for the hearing the next day.

[25] The Municipality has not covered itself in glory in this matter and appears, as is correctly pointed out by Mr Wilken, for the applicants, to have misunderstood its obligations to have in place an emergency housing program.

[26] The Municipality, by its conduct, appears to be quite happy for one of its ratepayers to continue for as long as possible to shoulder the burden of housing the occupiers, although this is its constitutional remit.

[27] The applicants who, as has already been indicated, have never had any relationship with the occupiers, have done all that was expected of them in terms of compliance with the November 2014 and 31 July 2015 orders. To expect them to continue housing the occupiers on the farm until April 2016 would not be in the interests of justice.

[28] It is common cause that the applicants (a) incurred substantial expense in anticipation of improving the farm on the occupiers’ anticipated relocation in terms of the November 2014 order and (b) remain precluded from not only housing their own employees in the premises currently occupied by the occupiers but also from using that part of the property for the purposes it was purchased for, namely commercial farming.

[29] The occupiers argued, inter alia, that it would not be in the interest of justice for them to be evicted until alternative emergency housing in the Gouda development was ready as was proposed by the Municipality. The occupiers, in their written submissions, also argued that this Court was functus officio with regards to the November 2014 order save for the extension of the eviction date.

[30] In dealing with the first of the occupiers’ arguments, it must be pointed out that, throughout these proceedings, the occupiers have done nothing to regularise their own position. They refused to be moved to housing which is smaller than the ones they are currently occupying despite having no right to occupy same. They refuse to be moved if such a move will result in them being split up as a group. They are employed elsewhere and it does not appear from the papers what effort they have made to get alternative accommodation either where they are currently working or with relatives or friends. But even if such effort for alternative accommodation has been made by them, what is clear from the papers, is that the occupiers will only vacate the premises if the alternative premises are equal to or better than their current accommodation regardless of the inconvenience or prejudice to the applicants.

[31] Having regard to the respective arguments of the applicants and the occupiers as to in whose favour the scales of justice in this regard should fall, I am of the view that justice favours the applicants in this instance.

[32] The occupiers will not be left homeless on eviction. It is well within the Municipality’s powers, despite its protestations to the contrary, to temporarily house the occupiers at [V………] until April 2015 when the Gouda development is ready for occupaton. The fact that [V……] might currently not have electricity is not, by itself, an insurmountable obstacle. Is it quite possible for the Municipality to provide the occupiers, when relocated, with portable generators for electricity and water tanks should there be no running water. Also, the fact that no funding was set aside for such relocation is no excuse. Emergency funding, I am sure, can be found by the Municipality. It certainly had enough time to anticipate this eventuality and to make the necessary provisions.

[33] It was on the basis of the above that the Municipality’s application for an extension until 30 April 2016 was rejected and constitutes the reasons for my order dated 02 September 2015.

[34] I now turn to the occupiers’ second argument, namely that this Court is functus officio.

[35] It is trite that a final order can only be amended in limited instances. See Zondi v MEC, Traditional and Local Government Affairs 2006 (3) SA at paragraphs 28 and 29. This common law rule also finds expression in section 35 (12) (b) of the Restitution of Land Rights Act 22 of 1994 which entitles the Court to correct patent errors in a judgment or order and in the Rules of this Court which allows the Court to rescind or vary an order which contains an ambiguity or patent error or omission in order to clarify same.

[36] It is not the Municipality’s case that the impugned order suffers from any of the criteria for varying or amending an order set out in paragraph 34 above. Rather, as I understand it, the Municipality’s case is that, mostly for financial reasons and issues related to bulk services, it is not in a position to house the occupiers until the first quarter of 2016. But even that time frame is based on an assumption that, according to the Municipality’s Senior Manager: Human Settlements ‘no hurdles will be encountered on the way forward’.

[37] For all the reasons set out above, I agree that the Court is functus officio and find that I am unable to vary the November 2014 order.

[38] The eviction of the occupiers as set out in paragraph 1 supra consequently stands.

M. P. CANCA

Acting Judge in the Land Claims Court

---