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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

FLYNOTES: EVICTION – Unlawful occupiers – Vulnerable people – Households headed by women, including children, disabled person and elderly – “Just and equitable” encompass consideration of position of owner and occupiers – Company requiring properties to house its employees – That occupiers restored properties to make them habitable not providing right to occupation – Have had benefit of free housing, water and electricity – Three months sufficient to make alternative arrangements – Order granted for eviction of respondents.

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NUMBER: M130/2022

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

 

In the matter between:-

 

RUSTENBURG PLATINUM MINES LIMITED	Applicant
And
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	1st Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	2nd Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	3rd Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	4th Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	5th Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	6th Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	7th Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	8th Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	9th Respondent
THE UNLAWFUL OCCUPIERS, ERF 9[…], BOITEKONG EXTENSION 3, RUSTENBURG, NORTH WEST	10th Respondent
ELIZABETH MOLOSI	11th Respondent
THE UNLAWFUL OCCUPIERS, ERF 8[…] (ALSO KNOWN AS NO 1[…] P[…] STREET) PROTEA PARK EXTENSION 1, RUSTENBURG, NORTH WEST	12th Respondent
CANDY NONTHINA	13th Respondent
THE UNLAWFUL OCCUPIERS, ERF 1[…] (ALSO KNOWN AS NO 3[…] B[…] STREET) RUSTENBURG, NORTH WEST	14th Respondent
MONDGOMERY MOLOKI	15th Respondent
THE UNLAWFUL OCCUPIERS, ERF 1[…] (ALSO KNOWN AS NO. […] C[…] PLACE) GEELHOUTPARK EXTENSION 5 RUSTENBURG, NORTH WEST	16th Respondent
THABO KHUMALO	17th Respondent
LEBOGANG KHUMALO	18th Respondent
THE UNLAWFUL OCCUPIERS, ERF 1[…] (ALSO KNOWN AS NO […] L[…] STREET) GEELHOUT PARK, EXTENSION 5, RUSTENBURG, NORTH WEST	19th Respondent
THE RUSTENBURG LOCAL MUNICIPALITY	20th Respondent

 

JUDGMENT

 

FMM REID J

 

Introduction:

 

[1]          The applicant seeks an order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) evicting the 1^st to 19^th respondents from the above cited properties, which are owned by the applicant.

 

[2]          The proceedings commenced on 11 March 2024. No heads of argument was filed by the respondents. Adv Seleka, who appears on behalf of the respondents, indicated that the respondents are ready to proceed with the matter despite not having filed heads of argument. The matter subsequently proceeded.

 

[3]          The 1^st to 4^th and the 6^th to 16^th respondents have filed opposing affidavits. The 5^th and 17^th to 19^th respondents have not filed any opposing papers and are thus not opposing the application. For ease of reading, I will refer to “the respondents” in reference to the 1^st to 4^th and the 6^th to the 16^th respondent. Where a distinction between the respondents is required, I will refer to the individual respondent. I will also refer to the houses in which the respondents reside, as “properties”.

 

[4]          The respondents filed their answering and supplementary answering affidavits out of time. The applicant does not oppose the respondent’s application to condone the late filing of the opposing affidavits. Condonation for the late filing of the answering and supplementary answering affidavits is consequently granted by this Court.

 

[5]          On 24 November 2022 this application for eviction has been postponed to 28 July 2023. On 28 July 2023 the matter has been postponed to 8 March 2024 and the respondents were ordered to pay the costs of the postponement.

 

Issues before this Court

 

[6]          The respondents raise the following defences to the evictions:

 

6.1.                   The applicant has not complied with section 4 of the PIE;

 

6.2.                   The deponent to the applicant’s affidavit, Mr Mgudlwa does not have authority to act on behalf of the applicant.

 

6.3.                   That the properties, when they were occupied by the respondents, were empty, abandoned and derelict and, in the premises, they were entitled in law to occupy it.

 

6.4.                   That it would not be just and equitable to evict them from the properties as, inter alia, they do not have and/or cannot afford alternative accommodation. Eviction would also upset the schooling arrangement of those that have children, certain of the respondents’ care for disabled residents, certain of the respondents are families headed by women and certain of the respondents who have young children.

 

[7]          Paragraphs [6.1] and [6.2] are issues of a procedural nature. The remainder of the issues are of legal nature.

 

[8]          The substantive issues before this Court, are whether:

 

8.1.                   The applicant has made out a case for the legal eviction of the respondents.

 

8.2.                   Should this Court decide that the applicant has made out a case for eviction, this Court is to consider whether it is just and equitable to grant an order of eviction against the respondents.

 

8.3.                   If both the abovementioned enquiries are answered in the positive, an enquiry must lastly be done on the period that would be a reasonable period for evacuation of the properties.

 

[9]          These substantive issues are determined by application of the PIE Act which includes due regard to inter alia the personal circumstances of each respondent family, whether eviction would be just and fair, and address the question of supplying alternative accommodation in as far as it is applicable.

 

Material background

 

[10]       The applicant conducts mining activities and a smelter in the Rustenburg and surrounding areas. The applicant employs approximately 1,962 people. It is undisputed that the properties belong to the applicant and were in the de facto possession of the properties prior to the respondents’ occupation thereof. It is common cause that the applicant has never granted the respondents permission to occupy the properties. Some of the respondents occupied the properties, being under the impression that they have received permission from the owner of the properties.

 

[11]       As a benefit to its employees, the applicant has sought to procure accommodation for its employees over the past 20 years. Employees who qualify for the housing benefit apply to the applicant for allocation of housing which, if available, are allocated to the employees. Such employees pay a nominal rental fee to the applicant, as well as the water and electricity consumed. Due to the turn-over of personnel at the applicant, it happens that some properties remain vacant for a period.

 

[12]       During December 2021 to January 2022 the properties were vacant and became occupied by the 1^st to 19^th respondents. Some respondents allege that they have occupied the vacant properties from August 2021, which is denied by the applicant.

 

[13]       The applicant alleges, and the respondents deny, that the properties were safeguarded to prevent illegal occupants and vandalism. The applicant further alleges that the properties were locked, and security were employed to prevent unlawful occupation. Access to the properties were obtained by the respondents by taking over physical control of the properties and moving in. The applicant claims, and the respondents deny, that the security guards were threatened with violence and chased away by the respondents.

 

[14]       The respondents state that the derelict state of the properties caused community unrest as the abandoned properties were being used for criminal activities. The properties became a drug-nests and drugs such as “nyaope” were sold from the properties. The illegal activities allegedly conducted from the empty properties included prostitution, drug use and drug distribution. The occupation of the properties by the respondent prevented illegal activities being conducted from the vacant properties.

 

[15]       Criminal charges have been laid by the applicant against the respondents for illegally occupying the properties. It has borne no fruit. As a result, the applicant instructed its attorneys to institute these eviction proceedings against the respondent.

 

[16]       The respondents who oppose the eviction application, raise similar defences. These defences are:

 

16.1.                When the respondents occupied the premises, it was empty, abandoned and derelict and not in a habitable state. The respondents state that they used their own financial means to renovate the properties to a habitable state. The respondents deny that some of the properties were locked prior to their occupation thereof. The respondents also deny that there was patrolling or security at the properties.

 

16.2.                The respondents deny that the properties were to be allocated to employees of the applicant in the absence of details of the allocations: who would be allocated what property and based on what reason, and when the decision was taken to allocate those specific properties to those specific employees.

 

16.3.                It would not be just and equitable to evict them as they inter alia do not have and/or cannot afford alternative accommodation. They have also used their own financial means to renovate the properties to the enrichment of the applicant. The respondents also claim that eviction would upset the schooling arrangements of those respondents who have children. Certain of the respondents care for the disabled, and some of the respondents are families headed by women and certain respondents have young children.

 

[17]       Adv Smit, appearing for the applicant, argues that the order of eviction is a reasonable order, sought on the basis that the respondents would be able to secure alternative housing since they earn an income. Whilst the respondents are in occupation of the properties, the applicant is not receiving any income from the properties and are deprived of providing accommodation to their employees.

 

[18]       The respondents state that the area of the properties is surrounded by informal settlements, and that the residents of the informal settlements use the abandoned properties as a source to draw water for their livestock.

 

[19]       During the period that the properties were left vacant, the properties were vandalised. The applicant claims that the respondents are responsible for the vandalisation of the properties, which the respondents deny.

 

[20]       The respondents and their families cleaned up the properties, did electrical work, plugs, installed geysers, fixed the ceiling, replaced doors, painted the buildings and did plumbing works to bring the properties up to habitable standards.

 

[21]       The individual circumstances of the respondents are summarised as follows:

 

21.1.                The 1^st respondent is a hairdresser and works as a builder.

 

21.2.                The 2^nd respondent was employed by Bidvest Prestige since February 2020 but lost his job in August 2022. He is 23 years old and lives with his twin sister. Both finished school in 2019. When they commenced occupation of the property, there was no water or electricity and the property no ceiling or internal doors. There were feces throughout the place. The windows were broken, and the gate was open. The front door to the house was open. There were no electrical plugs inside the house. The 2^nd respondent used his savings to connect the water and electricity and renovate the property.

 

21.3.                The 3^rd respondent stays in the property with his 2 children, a 15 year old boy and 21 year old girl.

 

21.4.                The 6^th respondent is employed as a cashier at Choppies on a temporary (“flexi”) basis and earns between R2,800 and R3,400 per month. She was informed by her uncle of dilapidated houses that were being “taken over” by members of the public. She went to the property that she currently occupies and found it was a dump site with filth both inside and outside the house. There was no ceiling, toilet, shower, doors, windowpanes or pipes inside the house. She used her money to buy doors and windowpanes and received assistance in connecting water and electricity.

 

21.5.                The 7^th respondent states that the property he is occupying was vandalised and were used for crime-related activities prior to his occupation. He was under the impression that the property did not have an owner due to the state of the vandalisation. He used his money to install doors, fixed the roof, install the toilet and windowpanes. He also painted the house, pulled up a fence, fixed the windows and roofing. He cleaned the rubble and filth in the house. There is a sewerage draining problem at the property. He lives in the property with his cousin who is 20 years old and unemployed. The 7^th respondent earns a living by driving taxis as and when required. He occasionally earns R1,500 to R2,000. He allows the neighboring informal settlement residents to connect with the water of the property to provide for their livestock.

 

21.6.                The 8^th respondent earns a total income of R6,000 per month. Her income is derived from selling food-stuff receiving a profit of R4,000. She also receives a disability grant for her brother, R450 and receives a child grant. She, her 2 daughters of 18 and 12 years stay in the property together with her disabled brother who epileptic and receives chronic medication. She occupied the property when escaping an abusive relationship. The property was dilapidated, it had no windowpanes, no doors and no plumbing. The was feces inside the property as well as used condoms and goat droppings. She cleaned the property and replaced some of the windowpanes. She received help in connecting water and electricity.

 

21.7.                The 9^th respondent is employed by McDonalds and earns a salary of R1,800 per month. She has 2 children who are respectively 8 years and 15 years old who live with her in the property. When she commenced occupation, the property had no doors, no toilet, windows or electricity. The shower was not working, and the roof had holes in it. She renovated the property. Should she be evicted, her children would be prejudiced in attending another school, as they currently walk to school. Should she have to relocate, she would have to pay transport fees for her children to attend school. She will also lose her job if she does not have a place to stay.

 

21.8.                The 10^th respondent has 2 children being 11 and 8 years old who is living with him in the property. He lives from social grants and sells water and energy drinks at taxi ranks. On a successful day he can make a profit of R700 per day from the sale of water and energy drinks. The property was dilapidated and derelict when he moved in. He used his savings to renovate the house which included the installation of windows, doors, cutting the grass, installing a toilet and an electricity box.

 

21.9.                The 11^th respondent earns a living as a hairdresser and provides make-up services. When she occupied the property, the windowpanes were broken, there were no doors, and the property was abandoned. There was water in the yard but no electricity. On her request, an acquaintance reconnected the electricity. She used her savings to repair the property. She stays in the property with her 15 year old and 9 year old daughters. She also has a baby. Her younger brother also lives in the property. Her daughters attend school in Paardekraal and the children walk to school. If she is evicted, she will have to stay in Witraandjie and her children will not be able to attend school as they would not have money for transport.

 

21.10.             The 12^th respondent occupies the property together with his wife and 2 minor children, aged 14 and 15. The children walk to school. His wife sells vegetables and fruit on the side-walks. He earns a living as a builder but is not permanently employed. He does not have any family in the Rustenburg area and his closest relatives are at a village called “Witraandjies”. Should the family be forced to move from the property, his children would not be able to go to school as he would not be able to afford transport of the 10km between the school and where his relatives live.

 

21.11.             The 13^th respondent says he receives an income from government grants and “piece jobs”. He states that the property was “like a dumpsite and a forest” with trees which have fallen over part of the building and smashed the roof and ceiling. He fixed the house as good as he can. He lives there with his daughter and his grandchild.

 

[22]       The personal circumstances raised by the respondents can be categorised as follows:

 

22.1.                Households that are headed by women.

 

22.2.                Households that include children.

 

22.3.                A household where a disabled person lives.

 

22.4.                Households that take care of the elderly.

 

22.5.                The respondents cannot afford alternative housing.

 

22.6.                The children will not be able to attend school should the respondents be evicted, as the respondents would not be able to afford transport.

 

22.7.                When the respondents occupied the properties, the properties were dilapidated, and the respondents repaired the properties to a habitable state with their personal funds. Eviction would thus be unfair as they have enriched the applicant.

 

22.8.                They provide water to the live-stock of the neighbouring informal settlement.

 

[23]       Of import to note, is that all the respondents receive an income, albeit from social grants or “piece jobs”.

 

The legal principles

 

[24]       The respondents deny that the applicant complied with section 4 of PIE. Section 4 of PIE reads as follows:

 

“4 Eviction of unlawful occupiers

 

(1)          Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

 

(2)          At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.

 

(3)          Subject to the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

 

(4)          Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of the court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.

 

(5)          The notice of proceedings contemplated in subsection (2) must-

 

(a)       state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

 

(b)       indicate on what date and at what time the court will hear the proceedings;

 

(c)       set out the grounds for the proposed eviction; and

 

(d)       state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

 

(6)          If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

 

(7)          If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

 

(8)          If the court is satisfied that all the requirements of this section has been complied with and that no valid defence has been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine-

 

(a)       a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and

 

(b)       the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the date contemplated in paragraph (a).

 

(9)          In determining a just and equitable date contemplated in subsection (8), the court must have regard to all relevant factors, including the period the unlawful occupier and his or her family have resided on the land in question.

 

(10)        The court which orders the eviction of any person in terms of this section may make an order for the demolition and removal of the buildings or structures that were occupied by such person on the land in question.

 

(11)        A court may, at the request of the sheriff, authorise any person to assist the sheriff to carry out an order for eviction, demolition or removal subject to conditions determined by the court: Provided that the sheriff must at all times be present during such eviction, demolition or removal.

 

(12)        Any order for the eviction of an unlawful occupier or for the demolition or removal of buildings or structures in terms of this section is subject to the conditions deemed reasonable by the court, and the court may, on good cause shown, vary any condition for an eviction order.”

 

Compliance with section 4 of PIE

 

[25]       On 23 June 2022 this Court, under the hand of Petersen J, an ex parte order was granted authorising the applicant to serve a notice of motion of eviction as contemplated in terms of section 4(2) of PIE.

 

[26]       The section 4(2) notices were duly served on the respondents on 23 December 2021 and 19 January 2022. The notices were served by the sheriff's office on the occupiers and/or affixed to the properties. The section 4(2) notices stipulated the legal requirements as prescribed in section 4(2) of the PIE.

 

[27]       The date of occupation of the properties by the respondents, are disputed between the parties. The applicant alleges that the respondents occupied the property for less than 6 months prior to the institution of PIE proceedings, thus from December 2021 and January 2022 with the eviction notices served on the respondents. The respondents allege that some of them occupied the properties longer than 6 months, as from July 2021 and August 2021. The period becomes relevant in relation to the provision of alternative housing, as stipulated in section 4(6) of PIE. The applicant has, in as far as it may have become relevant, correctly cited the Municipality of Rustenburg as a respondent. Whether the occupiers might be entitled to alternative housing, has not been raised in the answering affidavit, and as such I accept that the respondents do not take issue with the period of occupation as a defence to the evictions. Further, the documents before court favours the applicant’s version that the properties were occupied in December 2021 and January 2022.

 

[28]       The service of the notices to evict was done within 6 months and the issue of alternative accommodation is thus irrelevant.

 

[29]       Having regard to the above, I find that the applicant has complied with the requirements of section 4 of PIE.

 

Authority of deponent in founding affidavit

 

[30]       The respondents dispute the authority of the deponent to the founding affidavit to launch the application.

 

[31]       The founding affidavit has been deposed to by Lonwabo Zizo Mgudlwa, who is the Housing Development Manager of the applicant. He states that he has personal knowledge of the content of the founding affidavit and, where appropriate, confirmatory affidavits are attached to the founding affidavit.

 

[32]       It is trite that a deponent to a founding affidavit must set out enough facts to demonstrate personal knowledge of the essential allegations contained therein.

 

[33]       In Firstrand Bank Ltd v Kruger & others 2017 (1) SA 533 (GJ), the key issue was whether the deponent, a 'commercial recoveries manager' at the bank, had set out enough facts to demonstrate personal knowledge of the facts in the affidavit. 

 

[34]       I am satisfied that the deponent to the applicant’s affidavit, Mr Mgudlwa by virtue of his position as the Housing Department Manager of the applicant has the necessary authority to launch the application. I am also satisfied that he demonstrated sufficient facts of the affidavits to be in his personal knowledge.

 

[35]       Subsequently, the point in limine that the deponent does not establish his authority to act on behalf of the applicant, is dismissed.

 

Consideration of factors relevant to eviction

 

[36]       The PIE Act provides a framework for the protection of occupants from unlawful eviction and mandates that evictions must be carried out in a manner that is fair and just. Section 4(6) of the PIE Act specifically requires that, in considering an eviction application, the court must consider the rights and needs of the occupiers, especially those who are vulnerable members of the society.

 

[37]       Households headed by women, households that include children, the elderly and disabled people are all categories that resort under vulnerable members of the society.

 

[38]       The fact that the occupiers include elderly persons, women-headed households, children and a disabled person, adds an additional layer to the complexity of this eviction application. The PIE Act mandates that the court must consider the social and economic circumstances of such vulnerable groups.

 

[39]       The legal requirement that an eviction must be “just and equitable” as described in the PIE Act, requires that any eviction order must be fair, and the court should have consideration of the impact of eviction on the occupiers.

 

[40]       In the matter of Occupiers, Berea v de Wet NO and Another 2017 (5) SA 346 (CC) the cornerstones of the application of the PIE Act were succinctly set out as follows:

 

[42]        This court in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) emphasised the new approach that courts must adopt in eviction matters. A court must take an active role in adjudicating such matters. As this court stated:

 

'The court is thus called upon to go beyond its normal functions and to engage in active judicial management according to equitable principles of an ongoing, stressful and law-governed social process. This has major implications for the manner in which it must deal with the issues before it, how it should approach questions of evidence, the procedures it may adopt, the way in which it exercises its powers and the orders it might make. The Constitution and PIE require that, in addition to considering the lawfulness of the occupation the court must have regard to the interests and circumstances of the occupier and pay due regard to broader considerations of fairness and other constitutional values, so as to produce a just and equitable result.' 

 

[43]        The role played by a court in such matters was elucidated further in other cases. As a starting point, this court in Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) held that:

 

'(t)he application of PIE is not discretionary. Courts must consider PIE in eviction cases.' Furthermore, this court in Pitje held that courts are not allowed to passively apply PIE and must 'probe and investigate the surrounding circumstances'. Pitje v Shibambo  2016 (4) BCLR 460 (CC)

 

[44]        The nature of the enquiry under s 4 of PIE was examined in the case of City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA). In summary, it was held that there are two separate enquires that must be undertaken by a court:

 

'First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevant factors. Under s 4(7) those factors include the availability of alternative land or accommodation. The weight to be attached to that factor must be assessed in the light of the property owner's protected rights under s 25 of the Constitution, and on the footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in duration. Once the court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an eviction order, it is obliged to grant that order.' 

 

[45]        The second enquiry, which the court must undertake before granting an eviction order, is to consider —

 

'what justice and equity demand in relation to the date of implementation of that order and it must consider what conditions must be attached to that order. In that second enquiry it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless thereby or need emergency assistance to relocate elsewhere. The order that it grants as a result of these two discrete enquiries is a single order. Accordingly, it cannot be granted until both enquiries have been undertaken and the conclusion reached that the grant of an eviction order, effective from a specified date, is just and equitable. Nor can the enquiry be concluded until the court is satisfied that it is in possession of all the information necessary to make both findings based on justice and equity.' 

 

[46]        As is apparent from the nature of the enquiry, the court will need to be informed of all the relevant circumstances in each case in order to satisfy itself that it is just and equitable to evict and, if so, when and under what conditions. However, where that information is not before the court, it has been held that this enquiry cannot be conducted and no order may be granted.

 

[47]        It deserves to be emphasised that the duty that rests on the court under s 26(3) of the Constitution and s 4 of PIE goes beyond the consideration of the lawfulness of the occupation. It is a consideration of justice and equity in which the court is required and expected to take an active role. In order to perform its duty properly the court needs to have all the necessary information. The obligation to provide the relevant information is first and foremost on the parties to the proceedings. As officers of the court, attorneys and advocates must furnish the court with all relevant information that is in their possession in order for the court to properly interrogate the justice and equity of ordering an eviction. This may be difficult, as in the present matter, where the unlawful occupiers do not have legal representation at the eviction proceedings. In this regard, emphasis must be placed on the notice provisions of PIE, which require that notice of the eviction proceedings must be served on the unlawful occupiers and 'must state that the unlawful occupier . . . has the right to apply for legal aid'. (Section 4(5) read with s 4(2) of PIE).

 

[48]      The court will grant an eviction order only where: (a) it has all the information about the occupiers to enable it to decide whether the eviction is just and equitable; and (b) the court is satisfied that the eviction is just and equitable, having regard to the information in (a). The two requirements are inextricable, interlinked and essential. An eviction order granted in the absence of either one of these two requirements will be arbitrary. I reiterate that the enquiry has nothing to do with the unlawfulness of occupation. It assumes and is only due when the occupation is unlawful. 

 

[49]        Where occupiers are not represented, the Supreme Court of Appeal in Changing Tides has provided some additional guidance:

 

'Where [unlawful occupiers] are not represented, courts may consider issuing a rule nisi and causing it to be served on the occupiers (and if it is not present, the local authority), together with a suitably worded notice explaining the right to temporary emergency accommodation, how they can access such accommodation, and inviting them to come to court to express their views on that issue at least.' 

 

[41]       The above emphasise that this Court’s enquiry in relation to whether an eviction order should be granted or not, must start from a place of justice and equity. All the relevant factors have to be considered by the court, and only if the court is satisfied that a just and equitable order will be eviction.

 

Analysis

 

Just and equitable remedy

 

[42]       The courts have intentionally deterred from giving any definition for the term “just and equitable”. This is because there is no “one-size-fits-all” solution to a question of which the answer depends on the individual facts of a matter.

 

[43]       The term “just and equitable” is often used to describe decisions that are to be made fairly and impartially. It suggests a balance between moral rightness and fairness, with the purpose that the decision is sound and considerate of all the circumstances of the parties before court. The term “just and equitable” also develops with the common law, in accordance with the socio-economic situation of our country.

 

[44]       Just and equitable encompass consideration of not only the respondents’ positions, but also that of the applicant’s.

 

[45]       The applicant uses the property in supplying an accommodation benefit to selected employees. The applicant states that the employees pay a nominal amount for rent, and the utilities bill. The benefit that the applicant has in granting selected employees the benefit of housing, is to accommodate their employees and provide housing as a benefit in the employment relationship. At this moment, and since occupation of the properties in December 2021, the applicant has not received this benefit of its properties.

 

[46]       The applicant is currently losing the financial benefit it would have received, had its employees occupied the properties. In addition, the applicant is also losing the benefit of accommodating its employees in houses.

 

[47]       In relation to the individual occupiers, this Court takes into consideration all the factors as set out in detail in paragraphs [10] to [23] above. It serves no purpose to repeat these factors.

 

[48]       The various individual factors can be categorised in 3 main groups:

 

48.1.                The occupants are vulnerable members of the society (women headed households, children, the elderly and people with disabilities).

 

48.2.                They do not have money to live anywhere else and will be left desolate if evicted.

 

48.3.                They have renovated the properties with their own money, to the benefit of the applicant. Their occupation of the properties is also to the benefit of the surrounding village as they supply water to the animals.

 

48.4.                The respondents’ occupation of the properties are a deterrent to criminal activities that were conducted from the properties.

 

[49]       This Court must consider all the factors raised and apply the principles of corrective justice to arrive at a just and equitable decision.

 

[50]       South Africa is currently navigating many complex financial and economic challenges. Housing of people in South Africa is a well-known dilemma. So are the high levels of unemployment.

 

[51]       The respondents are part of the vulnerable members of our society and this factor is acknowledged by this Court. The elderly, children and disabled are being housed in the properties. The same principle is accounted for, by women headed households.

 

[52]       Unfortunately, there is always a cost associated with anything of value. In this instance it is the price of housing. Fairness would not dictate that one party has all the benefits at the expense of the other. The occupiers have had the benefit of free housing and free water and electricity since December 2021.

 

[53]       The fact that the occupiers cleaned up the properties and restored it to habitable properties, might form the basis of a claim of enrichment against the owner. It does not provide any right to occupation of the property.

 

[54]       All the respondents stated that they will be left desolate and suffer severe financial difficulties should they be evicted. The facts as illustrated above indicate that the occupiers do earn an income. They are thus employable and people who have the initiative to earn an income through the selling of goods. The statements of the occupiers that they will not be able to afford alternative housing, is a factor that is considered by this Court. This is, however, not a factor that entitles the occupiers to free housing supplied by the applicant.

 

[55]       In the consideration of all the relevant factors, I find that it is just and equitable that an order be granted for the eviction of the 1^st to 19^th respondents.

 

Time period of eviction

 

[56]       This Court now has to consider a reasonable and fair time period for the occupiers to vacate the properties.

 

[57]       Most of the occupiers have children that attend school, and arrangements will have to be made for the children to either go to another school or proceed their education at their current schools.

 

[58]       The elderly and the disabled persons would also require a suitable period in order to make arrangements for alternative accommodation.

 

[59]       In the circumstances, I hold the view that a period of 3 months since the date of this order would be a sufficient period for the evictions to take place. This period will provide the respondents with ample time to make alternative arrangements.

 

Cost

 

[60]       The general principle is that the successful party is entitled to its cost.

 

[61]       I find no reason to deviate from the general principle and the applicant is entitled to recover its costs from the respondents.

 

Order:

 

[62]            In the premises I make the following order:

 

i)             The 1^st to 19^th respondents is evicted from the properties that is described in the citation and heading of this judgment.

 

ii)            The 1^st to 4^th and the 6^th to 16^th respondents are ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved, on Scale C on a party and party scale.

 

i)             The 5^th and 17^th to 19^th respondents are excluded from any cost order.

 

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

 

DATE OF HEARING:	11 MARCH 2024
DATE OF JUDGMENT:	9 SEPTEMBER 2024
APPEARANCES:
FOR APPELLANT:	ADV M SMIT WITH ADV N FERRIS
INSTRUCTED BY:	CLIFFE DEKKER HOFMEYR INC ATTORNEYS SANDOWN, SANDTON TEL: 011-562-1042 EMAIL: corne.lewis@cdhlegal.com REF: C LEWIS/0206682 C/O NIENABER AND WISSING OFFICE 1, TILLARD STREET MAHIKENG TEL 018-381-2923 EMAIL: charl@nwatt.co.za
FOR RESPONDENT:	ADV SELEKA
INSTRUCTED BY:	S MPHAHLELE ATTORNEYS ATTORNEYS FOR 1ST – 19TH RESPONDENTS VOSLOORUS, BOKSBURG TEL: 061-515-5166 EMAIL: ksattorneys@gmail.com REF: KSM/000421/Mvi C/O KGOMO ATTORNEYS INC MOTEO HOUSE MAHIKENG TEL: 018-381-0495 EMAIL: info@kgomoattorneys.co.za

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