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Old Abland (Pty) Ltd v Hanekom and Others, Old Abland (Pty) Ltd v Jacobs and Others (LCC178/2016, LCC179/2016) [2017] ZALCC 24 (13 December 2017)

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IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO


BEFORE: MAKHANYA J & CANCA AJ

CASE NO.: LCC 178/2016

DATE: 13-12-2017

In the matter between:

OLD ABLAND (PTY) LTD                                                                                       Appellant

And

ANTHEA HANEKOM                                                                                  First Respondent

STUURMAN HANEKOM                                                                       Second Respondent

THOSE OCCUPYING WITH, OR UNDER FIRST                                     Third Respondent

RESPONDENT COTTAGE NO. 3 TOPSHELL

PARK, BADEN POWELL ROAD, LYNEDOCH,

STELLENBOSCH UNLAWFUL OCCUPIER

STELLENBOSCH MUNICIPALITY                                                         Fourth Respondent

DEPARTMENT OF RURAL DEVELOPMENT                                            Fifth Respondent

AND LAND REFORM

CASE NO.: LCC 179/2016

In the matter between:

OLD ABLAND (PTY) LTD                                                                                       Appellant

And

SUZIE - ANN JACOBS                                                                               First Respondent

THOSE OCCUPYING WITH, OR UNDER FIRST                                 Second Respondent

RESPONDENT COTTAGE NO. 8 TOPSHELL

PARK, BADEN POWELL ROAD, LYNEDOCH,

STELLENBOSCH UNLAWFUL OCCUPIER

STELLENBOSCH MUNICIPALITY                                                           Third Respondent

DEPARTMENT OF RURAL DEVELOPMENT                                        Fourth Respondent

AND LAND REFORM


Heard on: 07 December 2017

Delivered on: 13 December 2017

JUDGMENT

CANCA AJ

[1] The applicant applies for leave to appeal to the Supreme Court of Appeal against the whole of the judgment and order of Poswa-Lerotholi AJ delivered on 3 October 2017, with which I concurred. The application was initially opposed by the first to third respondents. However, the respondents subsequently changed their stance and now abide this court's decision.

[2] I do not consider it necessary to set out the fairly detailed grounds of appeal in this judgment or to repeat those aspects of the judgment which are attacked by the applicant. I will limit myself to brief comments on the fourth ground of appeal.

[3] It is suggested that the court erred in finding that the prejudice to the respondents would outweigh that to the applicant should an eviction order be granted.

[4] The court was concerned about the possibility of the respondents being rendered homeless by the eviction. However, at the hearing of this application, Ms Oschman, for the applicant, in response to a question, submitted that the respondents' possible homelessness on eviction was not an issue in the light of the fourth respondent's ("the Municipality") policy on emergency accommodation. According to that policy, the Municipality is obliged to supply emergency accommodation to persons rendered homeless by an eviction and who qualify under the policy. Counsel also submitted that her instructing attorney has, since the handing down of the judgment which is the subject of this appeal, been engaging the respondents' attorneys in, apparently futile, attempts to settle the dispute between the parties. An offer by the appellant to pay each respondent the sum of R100 000.00 to vacate the property and to relocate elsewhere was allegedly rejected a week ago, so the submission continued.

[5] This matter, as is the case in most ESTA matters, revolves around the relative hardships to an occupier, on the one hand and a land owner or person in charge, on the other hand, a grant or refusal of an application for eviction will have on the parties. On the former, the pain, generally speaking, cuts deeper than mere economic hardship, which, again speaking broadly, is what befalls the latter. The emotional stress brought on by the thought of being rendered homeless as well as the strain of worrying about the minor children's ease of access to schools in the event of eviction, must bear heavily on soon-to-be evicted occupiers.

[6] I have taken note of the information provided from the bar by Ms Oschman and hope that the discussions between the parties' legal representatives will lead to a settlement.

[7] I have carefully considered the submissions of counsel and, in the light the recent Constitutional Court case of Baron and Others v Claytile (Pty) Limited and Another [2017] ZACC 24, where a municipality's constitutionally imposed obligation to provide suitable alternative accommodation where an eviction results in homelessness was re-enforced, come to the view that there are reasonable prospects that a higher court may come to a different conclusion.

[8] In the result, I propose that the following order is made:

1.     The application for leave to appeal to the Supreme Court of Appeal succeeds.

_____________________________

MP Canca

Acting Judge, Land Claims Court

I concur and it is so ordered.


_____________________________

GM Makhanya

Judge of the Land Claims Court

Appearances


For the applicants: Advocate I Oschman

Instructed by: Cluver Markotter Inc. Stellenbosch.

For the  respondents: No appearance

Attorneys of record: JD Van Der Merwe Attorneys, Stellenbosch.