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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

 

CASE NUMBER: LCC63/2021

REPORTABLE: Yes

OF INTEREST TO OTHER JUDGES: Yes

REVISED.

16 August 2022

 

In the matter between:

 

STELLENBOSCH UNIVERSITY                                                         Applicant

 

and

 

RICHARD RETOLLA                                                                            1^st Respondent

 

JAYDENE RETOLLA                                                                             2^nd Respondent

 

ALL OTHER PERSONS UNLAWFULLY RESIDING

AT HOUSE NUMBER W [....], WELGEVALLEN, ERF [....],

IN THE REGISTRATION DIVISION OF STELLENBOSCH                  3^rd Respondent

 

STELLENBOSCH MUNICIPALITY                                                       4^th Respondent

 

PROVINCIAL DEPARTMENT OF RURAL DEVELOPMENT

AND LAND REFORM                                                                            5^th Respondent

 

REGISTRAR OF DEEDS, WESTERN CAPE                                      6^th Respondent

 

SURVEYOR-GENERAL, WESTERN CAPE                                       7^th Respondent

 

REASONS FOR DECISION

 

COWEN J

 

Introduction

 

1.          On 9 February 2022, I granted an order in the above matter on an unopposed basis. I now furnish my reasons for decision on the request of the parties. The order I granted is in the following terms:

 

“1. For purposes of the eviction proceedings of the first and second respondents, the Applicant’s property described as Welgevallen, Erf [....], in the registration division of Stellenbosch, consists of land in a township established, approved, proclaimed or otherwise recognised as such in terms of any law as contemplated in section 2(1) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the property is accordingly excluded from the provisions of ESTA.”

 

2.         The applicant in these proceedings, Stellenbosch University, sought a declaratory order regarding the status of a property it owns - Welgevallen, Erf [....], Stellenbosch (the property) in relation to the Extension of Security of Tenure Act 62 of 1997 (ESTA). It sought the order to confirm whether the provisions of ESTA or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) apply for purposes, inter alia, of eviction proceedings against the first and second respondents.

 

3.         In order to qualify as an occupier for purposes of ESTA, it is necessary, amongst other things, for a person to reside on land to which ESTA applies.[1] Section 2 of ESTA is entitled ‘Application and implementation of Act’. Sub-sections 2(1) and (2), which must be applied to decide the case before me, provide (with emphasis supplied):

 

(1) 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.

 

(2) Land in issue in any civil proceedings terms of this Act shall be presumed to fall within the scope of the ESTA Act unless the contrary is proved.

 

4.         The first and second respondents are Mr Richard Retolla and his spouse Mrs Jaydene Retolla. They reside on the property in House W [....]. Mr Retolla is alleged to be a former employee of the applicant. The third respondent is cited as all other persons unlawfully residing in House W [....]. Relief was ultimately only sought and granted in respect of the first and second respondents, who did not participate in or oppose the proceedings. There are others residing in other houses on the property, who are not parties to these proceedings and I return to this issue below.[2]

 

5.        The application first came before me in October 2021. At that stage only the first to third respondents were cited as respondents. On 25 October 2021, I postponed the matter until 25 January 2022. In my order, I confirmed that the question whether the property is subject to ESTA will be dealt with as a preliminary issue in the proceedings for eviction of the respondents. I joined the Stellenbosch Municipality, the relevant Provincial Department of Rural Development and Land Reform (the Department) and on the request of the applicant, the Registrar of Deeds, Western Cape and the Surveyor General, Western Cape. These parties were joined as the fourth to seventh respondents and I afforded them an opportunity to participate. I requested the Stellenbosch Municipality and the Department to deliver an affidavit indicating their views on the status of the property in light of the laws governing townships applicable in the Western Cape. I required service of the order on the first to third respondents and afforded them a further opportunity to participate.

 

6.        On 6 December 2021, the Registrar of Deeds delivered a report recording, inter alia, that from a registration point of view there are no objections to the order being granted. The day before the hearing and well out of time, the Municipality and the Department delivered affidavits. The applicant consented to their late receipt. The first and second respondents still did not elect to participate. On 25 January 2022, Mr Havenga SC appeared for the applicant and Mr Mauritz for the Department.

 

7.         Section 2(2) of ESTA, which presumes land in issue in civil proceedings to fall within its scope unless the contrary is proved serves to protect security of tenure of vulnerable persons. A respondent in an ESTA eviction process is unlikely to be in a position to confirm the status of the land, whereas persons who seek eviction will either have direct knowledge of it, or are able to access the relevant information. In this case, the applicant is Stellenbosch University which owns substantial property in Stellenbosch and has existed as an institution of knowledge for over a century. In many if not most cases where land falls within a township as defined, proving the status of property should be a simple matter, as although the law relating to township development is technically complex, it is formal in nature. But difficult issues can arise in a case such as this one, which involves not only a town founded in 1697, but property on its urban edge. When the application of ESTA under section 2(1) arises for decision, each case must be decided on its own facts having regard to the evidence placed before the Court and the presumption in section 2(2). Also material is the fact that ESTA is remedial legislation enacted to provide security of tenure for many South Africans in rural areas vulnerable to unfair eviction, and is ‘umbilically linked’ to the Constitution,[3] specifically section 25(6).[4] A person should not be denied ESTA’s protections without lawful reason. Moreover, for ESTA to serve its purpose of protecting against vulnerability, section 2(1) must be interpreted and applied so as to provide certainty about the geographical boundaries of ESTA’s application.

 

8.         As appears from my order, I concluded that the property is excluded from ESTA. I did so because I am of the view that the applicant has demonstrated that the property consists of land in the township of Stellenbosch, which, on the uncontested evidence before me, was recognised in law as a township at the latest in 1927 when the Townships Ordinance 13 of 1927 (the 1927 Townships Ordinance) came into force, and which has been part of the township since before 4 February 1997. It is zoned Education and used for that purpose. There is nothing to suggest that it is designated for agricultural purposes in terms of any law.

 

9.         This case requires consideration of laws relating to township development in the affected area, which, it must be noted, was a former white area. The law relating to township development is long and complex. It has differed over time, under different constitutional dispensations, in different parts of the country and it differs in different contexts.[5] Despite measures since 1994 to reform planning law, it remains starkly framed by our colonial and apartheid history. When town planning is in issue, it must always be remembered, as the Constitutional Court held in DVB Behuising, that residential segregation on racial lines was a cornerstone of the apartheid policy, the geographical plan of which was described as forming part of a ‘colossal social experiment and a long term policy’.[6] That history still explains much of the spatial and land inequality that still scars South Africa’s geography, frames economic disparity and entrenches vulnerability and marginalisation, including in respect of evictions. Section 2 of ESTA must always be applied cognisant of this constitutional, historical and geographical legal complexity and in light of ESTA’s remedial purposes.

 

10.         As regards the history of the property and applicable laws, the Court was partly assisted by expert evidence proffered through the applicant by Mr John Obree, a retired professional land surveyor living in the Western Cape and various reports and submissions provided by the parties and counsel. I refer to features of this material. I also refer more fully to the history of the relevant laws. As mentioned, the property was in a former white area. It would be imprudent for me in this judgment to venture beyond what is necessary to deal with the facts of this case. But it must be emphasised that the history I refer to, in the result, does not detail the broader colonial and apartheid legacy of town planning law nor do I consider ESTA’s application in areas in which black people were unjustly confined to live.[7]

 

The legislative history relevant to the property

 

11.         In his evidence, Mr Obree mentions that there is ‘confusion in the Cape’ around the use of the word ‘township’. The province now known as the Western Cape, where Stellenbosch is situated, was formerly part of the Cape Province. From Union in 1909 until the democratic transition in 1994, there were four provinces recognised in what ultimately became the Republic of South Africa under apartheid.[8] At the time of the democratic transition in 1994, the Cape Province consisted of a much broader territory including parts of what is now known as the Eastern Cape, the Northern Cape and part of the North West Province.

 

12.         In Ngwenya,[9] this Court recognised that the law on township development in the former Cape Province has differed materially to that in the other three erstwhile provinces (the Transvaal, Natal and the Orange Free State). At the time Ngwenya was decided in 1994, the term approved township’ or derivatives of that term were defined in the three former provinces under provincial laws.[10] Van Wyk, in her book Planning Law, explains how these former provinces introduced legislation providing for the establishment of new townships and distinguishes the position in the former Cape Province as being on a different footing,[11] at least for the period other than the years 1927 to 1985. As Van Wyk explains, during those years (1927-1985), township establishment was governed by the 1927 Townships Ordinance followed by the Townships Ordinance 33 of 1934 (the 1934 Townships Ordinance). The applicable procedures were similar to those in other provinces, which were governed by ordinances regulating the establishment of townships, which could be established only with approval of the relevant functionary and which ultimately entailed the submission of plans and diagrams with the Surveyor-General for approval, thereafter their lodgement with the Registrar of Deeds and ultimately a declaration by notice of an approved township in the Provincial Gazette.[12] Both the 1927 and 1934 Townships Ordinances set out similar procedures for the formal establishment of townships.

 

13.         Of course, many towns had been developed prior to the 1927 and 1934 Townships Ordinances. Van Wyk describes the position in the former Cape Province:

 

‘Prior to 1927 the Cape practice in respect of the establishment of towns was unique in South Africa. As the colony expanded new districts were laid out, so that by 1836 the Cape Colony was divided into two provinces, the western and the eastern. On the establishment of each new district, in terms of a specific placaat or statute, a drostdy was founded, and the boundaries of the district defined. Each town within the district adopted municipal status, which was in effect the establishment of the town. For each municipality so established legislative enactments were promulgated. In many cases, the separate legislative enactments of the various municipalities regulated the practice of township establishment.[13]

 

14.         It also appears from the 1927 and 1934 Townships Ordinances, that before 1927, recognised processes for the layout and subdivision of land in towns existed.[14]

 

15.         The 1927 Townships Ordinance operated prospectively. It regulated both the establishment and extension of townships. In section 1, it defined various terms including a township, an approved township,[15] and a general plan[16]. The definition of a township was:

 

‘a piece of land or a group of pieces of land divided, laid out or built upon for residential, industrial, occupational or similar purposes or in the opinion of the Administrator intended or destined or likely to be used for any such purpose, and shall include an extension of a township. Provided that ordinary subdivisions of land situated within a municipality shall not be deemed to be a township, unless in the opinion of the Surveyor-General, or the Registrar of Deeds, such sub-division will, in effect, constitute an evasion of the intent of this Ordinance, as more fully described in section six thereof.’

 

16.         Section 6 provided:

 

‘After the commencement of this Ordinance no township shall be established except in accordance with the provisions of this Ordinance. Any land which at the date of such commencement has been laid out as a township by means of actual survey into erven and public places, each of which has been defined by land marks or beacons placed at its corner points and the plan in respect of which has been approved by the Surveyor-General, shall be exempt from the provisions of this Chapter.’

 

17.         Under the 1934 Townships Ordinance, a ‘township or subdivided estate’ was defined to mean ‘any land subdivided or laid out, whether by actual survey, the erection of buildings or structures or in any other manner, for residential, industrial, occupational or similar purposes, but does not include a minor subdivision.’ Section 6 of the 1934 Townships Ordinance was similar to section 6 of the 1927 Townships Ordinance.[17] The duties of an owner to submit a general plan of the approved township to the Surveyor-General for approval, and thereafter submit them to the Registrar of Deeds were regulated by sections 19 and 20. The approval would lapse if an owner failed timeously to comply.[18] If compliant, the Administrator would notify the township in the Provincial Gazette.[19]

 

18.         The 1934 Townships Ordinance was repealed by the Land Use Planning Ordinance 15 of 1985 (LUPO), which was in force when Ngwenya was decided in 1994. Under LUPO, there are no procedures set out for the establishment of townships. Indeed, LUPO did not define the term ‘township’ at all. Rather, LUPO made provision for the development of land as towns by way of approved subdivisions[20] supported by zonings.[21] As indicated by its definition, zonings were to be determined by the relevant scheme regulations as defined. In turn, the definition of a scheme regulation incorporated various determinations made under the 1934 Townships Ordinance. Moreover, section 7 of LUPO incorporated certain town-planning schemes under the 1934 Townships Ordinance as zoning schemes. Subdivisions were regulated centrally by sections 23 to 27. In terms of section 23(1), from the commencement of LUPO, an application for subdivision would be granted or refused in terms of section 25, with relevant zonings indicated. Section 26, entitled ‘Approval of general plan or diagram’, provided that where an application for subdivision is granted, the landowner must submit a general plan or diagram, as indicated by the Surveyor-General concerned, to that Surveyor-General for his approval.[22] Section 27 of LUPO then regulated the process of engagement with the Registrar of Deeds in respect of the subdivision: If an owner failed timeously to comply with its provisions, the grant of the application was deemed to have lapsed but where the owner complied in a manner that precluded such lapsing, the subdivision was deemed to be confirmed. Section 23(2), deemed as confirmed subdivisions, township layouts or subdivisions by survey into erven and public places where the plan had been registered in the office of the Surveyor-General.[23]

 

19.         The above description of the position under LUPO gives broad legislative content to the following dictum of this Court in Ngwenya: ‘The procedure for the establishment of townships in the erstwhile Cape Province is governed by [LUPO]. It differs substantially from that of the other provinces.’[24] It also explains why in the Western Cape, it makes sense to speak of the establishment of townships by way of subdivision.[25]

 

20.         LUPO continued in force in the Western Cape after 1994 and remained in force until its repeal by the Western Cape Land Use Planning Act 3 of 2014 (LUPA), which commenced, in respect of the Stellenbosch Municipality on 1 December 2015.[26] LUPA was enacted not long after Parliament’s enactment of national legislation, the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA).[27] Under the Constitution, municipal planning is designated as a local government matter, which the Constitutional Court has held ‘includes the zoning of land and the establishment of townships.’[28] However, it is listed in Part B of Schedule 4 which means that it is also a functional area of concurrent national and provincial competence to the extent set out in section 155(6)(a) and (7) of the Constitution.[29] Moreover, regional planning and development, urban and rural development and housing are designated functional areas of concurrent national and provincial competence (Schedule 4) and provincial planning is an exclusive provincial competence (Schedule 5).

 

21.         It is thus unsurprising that SPLUMA does not purport to regulate township development in any detail. SPLUMA does define a ‘township’[30] and then proceeds to regulate townships centrally by delineating what related functions vest with provincial and municipal government respectively and determining certain procedures. Put generally, provincial legislation may regulate matters relating to township establishment and subdivision of land, amongst others.[31] As regards municipal government, SPLUMA recognises applications for township establishment and subdivisions of land as municipal matters and details certain related procedures.[32] Thus, under SPLUMA, it is largely to provincial and- municipal laws that one must turn to understand current decision making about township development.

 

22.         As indicated, LUPA was enacted by the Western Cape legislature in 2014 and came into force in respect of Stellenbosch in December 2015. It defines a ‘township’ in similar though not identical terms to SPLUMA.[33] Viewed from the perspective of ESTA, however, what is notable about LUPA is its absence of regulation of township development in those express terms. Under LUPA, the functions of municipalities in respect of development of towns centre on ‘land use planning’,[34] defined as ‘spatial planning and development management’. LUPA sets out the framework for land use development which, akin to the position under LUPO, ensues via the mechanisms of, centrally, subdivision of land supported by zoning schemes and zoning.[35] As under LUPO, LUPA requires an approved subdivision plan to be submitted to the Surveyor-General for approval.[36] There are transitional provisions to cater for the retention of existing schemes, zonings, subdivisions and other approvals.[37] This absence of regulation of ‘township’ development in LUPA is notable when viewed through the lens of ESTA, but it is unsurprising when viewed in light of the history of planning legislation in the Western Cape and former Cape Province.

 

23.         What the above legislative history shows is that in the Western Cape, where the 1927 and 1934 Townships Ordinances applied, towns that had already developed when the 1927 Townships Ordinance was enacted, were recognised as such by that Ordinance to the extent that they fell within its definition of a township.[38] It was only from the commencement of that Ordinance that township approvals were prospectively required (subject to the exemption in section 6)[39] and in respect of which the requirement for the submission for approval of general plans was imposed. In turn what this means is that there are some early towns in the Western Cape recognised by law, specifically the 1927 Townships Ordinance, in respect of which there will be no formal township approval and there will be cases, hopefully rare, where no general plan approved by the Surveyor-General exists. This does not mean that the Surveyor-General has no records of the township establishment or development. For example, section 8 of the 1934 Townships Ordinance imposed a duty on landowners to register with the Surveyor-General any plan of subdivision approved by any local authority before the commencement of the 1927 Townships Ordinance.[40] And further development was regulated. In my view, the recognition afforded these early towns by the 1927 Townships Ordinance, even if no general plan approved by the Surveyor-General existed, constitutes recognition in terms of a law of a township contemplated by section 2(1) of ESTA.[41]

 

Case law regarding the application of ESTA in the Western Cape

 

24.         In Droomer NO,[42] a full bench of the Western Cape High Court sitting on appeal, considered whether that Court had jurisdiction in respect of an eviction from certain immovable property near Pniel in the Stellenbosch municipality. The eviction was instituted in terms of the PIE Act. The Court concluded that ESTA applied holding as follows in respect of the word ‘township’ in section 2(1):

 

‘The word ‘township’ is not defined in ESTA, but the context in which it is used in s 2 makes it clear that something more than just a developed area is required. A ‘township for the purpose of ESTA means a development or approved subdivision that has been formally recognised as such in terms of a law.’ That is the effect of the words ‘established, approved, proclaimed or otherwise recognised as such in terms of any law.’ [43]

 

25.         In arriving at that finding, with which I agree, the Court referred to SPLUMA’s definition of the word township (and the definition of a general plan),[44] which the Court regarded as ‘the commonly used meaning of ‘township’ in South African statutory parlance’.[45] In Droomer NO there was no evidence that the affected or surrounding land qualified as a township by virtue of formal recognition as such.[46]

 

26.         I was referred to two pre-SPLUMA decisions of this Court concerning the application of section 2 of ESTA to land in the Western Cape: Bosworth[47] and Schaapkraal.[48]

 

27.         Bosworth concerned the status of Lake Brenton Holiday Resort near Knysna. This Court rejected a submission that whether a property is ‘recognised’ as a township for purposes of section 2 of ESTA, depends on a conspectus of factors such as whether the property falls inside or outside the area of jurisdiction of a local authority, whether the owner pays municipal rates and taxes, receives municipal services or its zoning. Rather, this Court referred to two forms of legal recognition of a township and concluded that there was no evidence that either was met:

 

27.1. First, the Court relied on the definition of a township in the Land Survey Act 8 of 1997 (the Land Survey Act) which, like its predecessor the Land Survey Act 9 of 1927, defined a ‘township’ to mean;

 

‘a group of pieces of land, or of subdivisions of a piece of land, which are combined with public places and are used mainly for residential, industrial, business or similar purposes, or are intended to be so used.’

 

27.2. Second, the Court referred to the fact that the procedure for township establishment differs from province to province but noted that a common feature is the preparation of a general plan of a township, defined in the Deeds Registries Act 47 of 1937 (the Deeds Registries Act) to mean ‘a plan which represents the relative positions and dimensions of two or more pieces of land …’.

 

28.         The Court in Bosworth was not called upon to decide whether a general plan is a prerequisite for all historical townships to be recognised by law.

 

29.         In Schaapkraal, the property was in the place known by that name: Schaapkraal. This Court concluded that the property was in a township as contemplated by section 2 of ESTA, relying in part on expert evidence given by, amongst others, Mr Obree. In doing so, as in Bosworth, the Court relied on the definition of a township in the Land Survey Act noting that the definition is similar to the definition in the 1934 Townships Ordinance.[49] The Court also concluded that on the evidence before it, LUPO confirmed Schaapkraal’s status as a township.[50] Thus, in Schaapkraal, where the property was held to be excluded from ESTA’s ambit, both forms of legal recognition were met.

 

30.         In light of SPLUMA, reliance on the definition of a township under the Land Survey Act may be debatable, but it is not necessary for me to consider this in view of my conclusions below. Suffice to note that SPLUMA does not amend ESTA.

 

The application of section 2 to the property

 

31.         Mr Obree explains that Stellenbosch was founded as far back as 1679, long before the 1927 Townships Ordinance came into force. Unfortunately, very little information was supplied to the Court regarding its development under law during this extended period in the sense suggested by Van Wyk.[51] This is unfortunate not least given the applicant’s unique access to knowledge, but it is understandable that laws of this sort may in the usual course be difficult to access. It is explained that the first local authority of Stellenbosch was formalised as far back as 1682. However, on the evidence before me, I can accept that as at 1927, Stellenbosch had long been established as a town with municipal status constituted of ‘pieces of land divided, laid out or built upon for residential, industrial, occupational or similar purposes’, this being the definition of a township in the 1927 Townships Ordinance.[52]

 

32.         There is, however, no suggestion on the papers that there existed any plan of Stellenbosch approved by the Surveyor-General or registered in that office either at the time the 1927 Townships Ordinance commenced or at any time thereafter pursuant to that Ordinance, the 1934 Ordinance or LUPO. There is also no evidence suggesting that the property became incorporated into Stellenbosch by virtue of any specific township approval or specific approved or deemed confirmed subdivision.

 

33.         Evidence that property is and remains incorporated into a township by way of an approved general plan in accordance with the above laws may determine the property’s status. However, at least in respect of towns established in the Western Cape before the commencement of the 1927 Townships Ordinance, it appears that general plans approved by the Surveyor-General and subsequently registered with the Registrar of Deeds may not always exist. But this does not mean that the 1927 Townships Ordinance did not recognise them as townships as defined in that Ordinance. What it does mean for litigants is that proof that a property forms part of a township recognised in terms of law may be more difficult and will require a litigant to satisfy a Court that the property has been duly incorporated into the township so recognised.

 

34.         In this case, Mr Obree has opined that the property formed part of Stellenbosch township from at the latest 1960, when the property was depicted as falling with the municipal area and boundary of Stellenbosch Town as extended and redefined in terms of section 8 of the Municipal Ordinance 19 of 1951.[53] It was not thereby suggested that inclusion within a municipal boundary determines the boundary of a township: that would be contrary to what was said in Bosworth. Rather, this was relied on to corroborate what is said to have already transpired, namely that the property had already been included in the township. And at that stage, ‘wall-to-wall’ municipalities that can straddle urban and rural areas did not yet exist as they do today.[54] Mr Obree opines that the inclusion of the property in the town had occurred much earlier. First, he explains that the town’s lands have been laid out for registration in the Deeds Office by land surveyors acting with consent from the local authority or provincial government in terms of applicable legislation from time to time. Second, although there is no plan of Stellenbosch in a cadastral sense, there is what is known as an Allotment Area. Third, and importantly, the property description was changed from being designated a Farm to an Erf when, between the 1940 and the early 1970s, a process ensued in the office of the Surveyor-General to remove anomalies in the description of properties in the town to ensure that all erven in the town were described as such and not as farms.[55] In this regard, the property was first transferred to the Applicant under title deed T [....] in 1917 and at that time was described as the Remaining Extent of Portion of the farm Welgevallen and quitrent land adjoining. It was later registered in the Farm Register of Stellenbosch as Farm No [....]. The property was re-designated through the above-mentioned process as Erf [....], Stellenbosch.

 

35.         The Surveyor-General has unfortunately not delivered any report, but did not oppose the application. The Registrar of Deeds has no objection to the grant of relief from a registration point of view. The Municipality and Department agree the property can be accepted as forming part of the township of Stellenbosch. The Department has supplied some evidence supporting the applicant’s case:[56] It substantially confirms the applicant’s evidence and supplies the map showing that the property forms part of the Stellenbosch Township Allotment Area.

 

36.         It is unfortunate that I was not supplied with evidence of precisely when and how the property was incorporated in the township of Stellenbosch. However, in view of the unanswered allegations and evidence in the founding affidavit, supported by Mr Obree, the reports supplied and the stance of the parties, I conclude that the property is part of Stellenbosch township as developed under law.

 

37.         On the evidence, it is clear the property has not been designated for agricultural purposes in terms of any law and as the Municipality confirms: the property is zoned (and used) for Education.[57]

 

Joinder and procedure

 

38.         The final issue that warrants explanation is the Court’s response to a submission advanced on behalf of the Department that the Court should not proceed with the matter unless all persons resident on the property had been notified or joined as they stand to be affected by its status under ESTA. After hearing the parties on this issue, I proceeded subject to safeguards to protect the rights and interests of any person similarly placed to the first and second respondents. It is for this reason that the order refers expressly to it being given for purposes of the eviction proceedings of the first and second respondents and relief was only ultimately sought against them. It was also with this concern in mind that I stated in my order of 25 October 2021 that the issue of the status of the property would be dealt with as a preliminary issue in eviction proceedings instituted by the applicant against the first and second respondents. This approach narrowed the relief from what was originally sought by the applicant which, had it been granted, would have determined the status of the property as an abstract issue.

 

39.         It warrants emphasis that the procedure that the applicant sought to follow in this case was somewhat unusual in that it sought a declaratory order from this Court regarding the application of ESTA upfront, mindful that the PIE Act and ESTA operate in a mutually exclusive way.[58] This Court is a creature of statute. It does not have jurisdiction over evictions subject to the PIE Act.[59] Moreover, the legislature has to date not conferred on this Court the power to transfer eviction proceedings instituted in this Court to the High Court, which means that when commencing legal process initiating an eviction (or seeking restoration), a potential litigant must consider which legislation applies and then follow the prescribed procedures. If they happen to institute proceedings in the wrong Court they must start afresh. In these circumstances, it is understandable that where the status of property in terms of section 2(1) of ESTA may be unclear, as in this case, a litigant may wish to seek a declaratory order from this Court before furthering the litigation. In my view, it would be desirable for the legislature to consider making appropriate provision for the transfer of proceedings between the High Court and this Court. However, not least in the absence thereof, I am of the view that there is no impediment to an applicant seeking appropriate declaratory relief provided that all parties intended to be bound thereby are notified, joined and afforded a fair opportunity to participate, including in respect of access to legal representation.

 

40.         In light hereof, and in light of the broader complexities relating to section 2(1) of ESTA, I have requested the Registrar to circulate a copy of this judgment to the Legal Aid Board, now responsible for funding in terms of section 29(4) of the Restitution Act, the Minister of Agriculture, Land Affairs and Rural Development, and the Minister of Justice, who is currently piloting a Land Bill through Parliament.

 

S J COWEN

Judge, Land Claims Court

 

Appearances:

 

Applicant:                                  Mr Havenga SC

 

Instructed by Cluver Markotter Attorneys.

 

Fifth Respondent:                    Mr Mauritz

 

Instructed by State Attorney, Cape Town.

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