REPUBLIC OF SOUTH AFRICA

   	IN THE HIGH COURT OF SOUTH AFRICA
                  GAUTENG DIVISION, PRETORIA
CASE NUMBER: 35608/2014

DELETE WHICHEVER IS NOT APPLICABLE
(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHERS JUDGES: YES/NO
(3)	REVISED

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         DATE                           SIGNATURE	

In the matter between:
GOVERN MBEKI MUNICIPALITY				APPLICANT
and
BONGANE NGOMANE 	 				1ST RESPONDENT
SAMSON NKABINDE					2ND RESPONDENT
NOMAWETHU CAWE					3RD RESPONDENT
ILLEGAL OCCUPANTS					4TH RESPONDENT

JUDGMENT 

MODIBA AJ:

1.	This is an application for an order evicting the respondents from Extension 21 and 25 and from Farm Zondagskraal 125 IS in Kinross, Mpumalanga (the properties) and demolishing all illegal shacks from the properties. The applicant also seeks an interdict prohibiting the respondents from illegally occupying and erecting shacks on the properties in the future and other ancillary relief. 

2.	The following facts are common cause between the parties. This application is the second of its nature to be brought by the applicant in a year. The applicant brought the first application on 3rd September 2013, during which it obtained an order interdicting Mr Dlamini, Ms Nkambule and persons cited as ‘illegal occupants’ from occupying vacant stands at Extension 21 Kinross, evicting them from the said property, authorising the applicant to demolish all illegal shacks and other ancillary relief. This order was executed in October 2013. 

3.	In May 2014, the respondents took occupation of Extension 21 Kinross, as well as the adjacent properties namely, Extension 25 and Farm Zondagskraal 125 IS Kinross. The properties in question are zoned as agricultural land. The respondents have erected structures which they use as residential dwellings on the properties. The properties belong to the applicant. The applicant did not give consent to the respondents to occupy it.

4.	The occupation of the properties by the respondents in May 2014 prompted the applicant to launch the current application on an urgent basis. On 16 May 2014, my sister Hlapi J granted a rule nisi calling on the respondents to show cause why the order should not be made final. None of the respondents opposed the application at that stage. The first and some of the fourth respondents (the respondents) have since opposed the application represented by Lawyers for Human Rights.

5.	Also common cause is the fact that following the eviction of the respondents from 21 Kinross in October 2013, they took refuge in a community hall in Kinross. Within two weeks of occupying the community hall, they were evicted. They then took refuge in a local primary school. Subsequently, they made several attempts to meet with the officials of the applicant to find an amicable solution to their plight. Most of the unlawful occupants have been on the applicant’s housing waiting list since 2002. Prior to taking occupation of Extension 21 Kinross, they were renting dwellings in the backyards of permanent residents where they were charged exorbitant rental, and often evicted arbitrarily by their landlords. Some of the residents are dependents of the respondents who have now become adults and require their own accommodation. 

6.	The response of the applicant’s officials to the respondents’ plight is that they should return to where they came from. The respondents allege that given the intolerable conditions under which they were living as backyard tenants, as well as the fact that some of them have been evicted by their landlords, it is not possible for them to go back.  

7.	Two issues are in dispute between the parties. Firstly, whether the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) alternatively the Extension of Security of Tenure Act 62 of 1997 (ESTA) is applicable, and if so whether the applicant has complied with the applicable legislation in bringing this application. Secondly, in the event that the court finds that the PIE Act is applicable, whether the applicant has valid grounds to evict the respondents as provided for in the PIE Act. 

8.	Counsel for the respondents submitted that an application for the eviction of the respondents may either be brought under the common law rei vindicatio remedy, the Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), or under the Extension of Security of Tenure Act 62 of 1997 (ESTA). He argued that the application may not be brought as an interdict as the applicant has done. For that reason, Hlapi J erroneously granted the rule nisi and if the rule nisi is confirmed, the court will effectively be creating new law. He argued that the PIE Act alternatively ESTA applies. He further argued that the applicant failed to comply with the provisions of the applicable legislation. 

9.	The respondents have raised four points in limine regarding non-compliance with the PIE Act and the Uniform Rules of Court. Counsel for the applicant submitted that the applicant has complied with the PIE Act and for that reason, the applicant is entitled to have the order confirmed.  

10.	I first consider whether the applicant may use the common law rei vindicatio remedy to evict the respondents from the relevant properties. In my view, given that the land from which the applicant seeks to evict the respondents is used for residential purposes, the applicant may not use the rei vindicatio remedy to evict the respondents. This is in line with the decision in City of Cape Town v Rudolph and Others 2004 (5) SA 39. At 61E,  where the court refused to use the common law mandament van spolie remedy because doing so would have the effect of evicting the spoliator. The court said to do so would be to overlook the wording and purpose of PIE and would permit the statute to be undermined.  Although in the City of Cape Town case, the court was concerned with the applicability of a different common law remedy from that under consideration in this application, in my view the decision is applicable in this case. In the Cape Town case, the court established the principle that a common law remedy may not be used to evict unlawful occupiers from property used for residential purposes where the PIE Act is applicable. I am of the view that this principle applies to this case. 

11.	The next question to consider is whether the applicant should have brought the application in terms of ESTA. Despite the fact that the properties from which the applicant seeks to evict the respondents are classified as agricultural land, in my view, ESTA does not apply for two reasons. Firstly ESTA does not apply where the respondents are using the property from which they are being evicted solely for residential purposes. Secondly, the respondents have never had any form of tenure over the properties in question. 

12.	I am of the further view that where the applicant seeks an order to evict the respondents or the effect of the order it seeks will result in the eviction of the respondents, the applicant may not use interdict proceedings to obtain an eviction order. To allow an applicant to use interdict proceedings without complying with the provisions of PIE Act, will thwart the objectives of that legislation. The PIE Act was promulgated to avoid arbitrary evictions, and to ensure procedural and substantive fairness to persons allegedly occupying property unlawfully. The interdict procedure does not have similar procedural and substantive requirements, and if utilised to evict unlawful occupiers, will undermine the objectives of the PIE Act.

13.	I now turn to deal with the points in limine raised by the respondents.  

14.	In respect of the first point in limine, the respondents allege that the applicant failed to comply with the provisions of the PIE Act in that a notice in terms of section 5(2) was not served on the respondents. In terms of section 5(2) of the Act, where an owner or person in charge of property or land seeks to evict an unlawful occupier on an urgent basis, it is required to serve a notice on the persons it seeks to evict. The notice must be served before the proceedings are heard, informing the respondents that proceedings for their eviction from the relevant property have been instituted, the date on which the application will be heard, the facts sought to be relied upon by the applicant, the fact that they have the right to legal representation and to apply for legal aid if they cannot afford to pay for such a service. 

15.	In respect of the second point of limine, the respondents allege that the notice issued to initiate eviction proceedings, defective as it is, was only served on some of the fourth respondents. Consequently, not all respondents are aware of the proceedings. Therefore, a rule nisi should not have been granted and it should not be confirmed.  

16.	It is common cause that the applicant did not serve a section 5(2) notice on the respondents prior to instituting the urgent application. The notice should have also been served simultaneously with the notice of motion initiating urgent proceedings. The applicant only issued and served a Form 2 (a) notice of motion. In Moela v Shoniwe 2005 (4) SA 357 (SCA) at 362F0362H, dealing with non-service of a section 4(2) notice, the court held that:
“However, the object of section 4(2) is clearly to ensure that the unlawful occupier and municipality are fully aware of the proceedings and that the unlawful occupier is aware of his rights referred to in section 4 (5) (d). It may be that the object, in appropriate circumstances, may be achieved notwithstanding that the service of the notice required by section 4(2) had not been authorised by the court. This may, for example, be the case if at the hearing, it is clear that written and effective notice of the proceedings containing the information required in terms of section 4 (5) had in fact been served on the unlawful occupier…”

17.	The same approach was followed in Unlawful Occupiers of the School Site v City of Johannesburg [2005] 2 All SA 108(SCA) at 116 where the court held as follows:
“Take the example of a section 4 (2) notice which failed to comply with section 4 (5) (d) in that it did not inform the respondents that they were entitled to defend a case or of their right to legal aid. What would be the position if all of this were clearly spelt out in the application papers? Or if on the day of the hearing the respondent’s appeared with their legal aid attorney? Could it be suggested that in these circumstances the section 4(2) should still be regarded as defective? I think not.”

18.	Counsel for the respondents submitted, and in my view correctly so, that a section 5(2) notice is, save for being used to bring the application on an urgent basis, similar to a section 4(2) notice. By implication, court decisions dealing with a section 4(2) notice are, unless there are distinguishing factors, applicable to the interpretation of section 5(2). 

19.	The following appear from the returns of service filed by the applicant: 
19.1	the first respondent resides at Erf 9, Extension 25 Kinross. The notice of motion was served at the said address on Thulani Behemba during the first respondent’s temporary absence. 
19.2	the second respondent resides at Farm Zondagskraal 125IS Kinross, Mpumalanga. Service on the second respondent was effected on Mr Tulani Behemba at Ext 25 Kinross because at the time of service, the second respondent was temporarily absent from his residence. 
19.3	the third respondent resides at 200 Extension 21 Kinross Mpumalanga. Service on the third respondent was effected on Tulani Behemba at Erf 25 Kinross because at the time of service, the third respondent was temporarily absent from his residence.
19.4	at the time of service, some of the fourth respondents who were served would not give their names. Copies were affixed to the structures where people were living. Copies were not fixed onto unfinished shacks where no occupants were present. The said structures were not marked. The shacks, at which the unlawful occupants who were served reside, were also not marked. 

20.	The first respondent’s return of service fails to allege that Thulani Behemba is a person apparently above the age of 16 years of age and was in control of the first respondent’s residence. The later issue was not raised by the respondents and is therefore not placed in issue. By implication, the respondents accept that there was proper service on the first respondent. 

21.	The manner of service on the second and third respondents does not comply with the Uniform Rules of Court because service was effected on another person at an address other than where they reside. I am therefore not satisfied that there was proper service on the second and third respondents. This approach is consistent with the decision in Transnet t/a Spoornet v Informal Settlers of Good Hope and others [2001] 4 All SA 516 (W) at 519d-f, where the court refused to accept service on leaders of unlawful occupiers where they do not reside on the same property and the process was not affixed to common areas. 

22.	Counsel for the respondents submitted that the applicant is not able to identify the fourth respondents on whom it served. He submitted that this is potentially prejudicial to the residents of Extension 25 Kinross were not all residents are illegal occupants. This was disputed by counsel for the applicant who submitted that the illegal occupants are known and that the applicant will not execute the order against the Extension 25 Kinross occupants who are not occupying the land illegally. 

23.	In my view, the wording of the return of service indicates that not all the fourth respondents were served. Those on whom service was effected are not specifically identified on the return of service. The court cannot simply accept the applicant’s assertion that it knows them. The manner of identification of these respondents should appear on the return of service. In my view, given that service was not effected on all fourth respondents and that the applicant is unable to identify the fourth respondents on whom it served, there is a great risk that the order will be executed against persons who were not served. 

24.	This case is distinguishable from the Moela and the Unlawful Occupiers of the School Site decisions cited above because the applicant failed to serve the notice on all the respondents. The applicant also failed to take additional reasonable measures to ensure that the proceedings come to the notice of all those sought to be affected by the order it seeks. The only person against whom failure to serve a section 5(2) notice may be condoned in the light of the Unlawful Occupiers of the School Site decision is the first respondent. 

25.	In my view, although the notice of motion was served on the first and some of the fourth respondents in accordance with the Uniform Rules of Court and that these respondents are before court, because the applicant seeks to evict a whole community of illegal occupants, it would not be in the applicant’s interests to consider the applicant’s submission for confirmation of the rule nisi only against a handful of persons it seeks to evict, especially in a case such as this where for the reasons set out in paragraphs 30 to 33 of this judgment, on the papers before court, the applicant has not shown that it is  just and equitable to evict the illegal occupants. 

26.	In light of the aforegoing, the second point in limine stands to succeed in respect of the second, third and fourth respondents. 

27.	In respect of the third point in limine, the respondent alleges that the applicant seeks an order evicting the respondents from Extension 21, 25 and Farm Zondagskraal 125 IS Kinross against all four respondents. However only the first and fourth respondents reside in the Zondagskraal settlement. The second and third respondents no longer live on the properties cited by the respondents and their whereabouts are unknown. This is not disputed by the applicant. The respondents further allege that the applicant seeks to interdict future illegal occupation of the said properties but the only cited respondents are those already in occupation. By so doing, the applicant seeks to obtain an order against persons who are not party to the current proceedings. 

28.	In my view, granting an order against the second and third respondents will be superfluous because they no longer reside on the property. I am also of the view that granting an order against future unlawful occupants who are not named and have not been served will be tantamount to creating a law of general application. It will also amount to a violation of the audi alteram partem rule because the persons against whom the order is granted would not have had an opportunity to defend the application. For these reasons, this point in limine also stands to succeed in respect of the second, third and fourth respondents.  
29.	Having found that all the points in limine raised by the respondents stand to succeed, the rule nisi stands to be set aside. Given that the points in limine raised by the respondents only raise procedural defects, they are not fatal to this application.  To dismiss the application would render the occupation of the properties res judicata.  The PIE Act was not intended to close the door of the court to a litigant who does not comply with the procedural requirements of the legislation, especially where from the facts, it appears that the respondents are occupying the property illegally. For the reasons set out in paragraphs 30 to 34 of this judgment, it is necessary for me to give directives regarding the further conduct of this application. Before I do so, I deem it appropriate to set out the historical context of this application as well as the legal basis for the directives I intend giving. 

30.	When the applicants initiated this application, the respondents had occupied the properties in question for less than six months. Therefore, the applicable section in proceedings for a final order is section 6. In terms of section 6, a court may grant an eviction order if in its opinion it is just and equitable do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women. The applicant has not placed any information before this Court to show that it is just and equitable for an eviction order to be granted against the respondents. 

31.	From the papers, it appears that the occupation of the properties was sparked by intolerable living conditions which the occupants endured as backyard tenants. Most of the persons sought to be evicted and/ or prohibited from occupying the relevant properties have been on the applicant’s housing waiting list for more than 12 years. They include their children who have grown up and now require their own houses. This is not disputed by the applicant. 

32.	In my view, the circumstances under which the respondents occupied the property,  bring to bear the applicant’s obligations in terms of section 26(2) and section 7(2) of the Republic of South Africa Constitution Act of 1996 to take reasonable legislative and other measures, within its available resources, to ensure the progressive realization of the respondents’ right of access to housing. The Constitutional Court interpreted this obligation to include having a housing program that not only to cater for permanent housing needs. The plan should also address housing needs in an emergency situation, which in my view becomes inevitable in a case such as this where the respondents have waited 12 years to be allocated state subsidised housing. The applicant together with other relevant government agencies should not only have a housing program, they should take reasonable steps to initiate and sustain it. 

33.	While the Constitutional Court has cautioned against section 26 (2) of the Constitution to promote lawlessness by people who want to jump the queue on the government’s housing waiting list, the applicant’s response that the respondents should return to where they came from is unacceptable. A similar response was shunned by the Constitutional Court in the Grootboom case. It is a flagrant disregard for the applicant’s obligations in terms of section 26(2). 

34.	Justice requires that that this matter is adjudicated in a responsive manner. The court will not be able to do so unless the applicant undertakes the following measures:
34.1	identifies the respondents who are on its housing waiting list;
34.2	ensures that adequate notice of the proceedings is served on all persons who will be affected by the order sought by the applicant;
34.3	submits a report to the Court setting out measures it has taken in accordance with its housing policy to provide emergency housing to people in need and as well as measures it has taken to eliminate the backlog on its housing waiting list. 

35.	Our courts customarily do not award a cost order in cases involving constitutional rights. For that reason, I will not grant an order as to costs. 

ORDER
In the premises, it is appropriate to make the following order: 
1.	The rule nisi granted by Hlapi J on 16 May 2014 is set aside.
2.	The applicant must serve a notice in terms of section 4(2) on all existing complete and incomplete structures in extension 21 and 25 Kinross and on the farm Zondagskraal as follows:
2.1	By assigning an identification feature to all complete and incomplete structures on the said properties;
2.2	By affixing the section 4(2) notice on all the identified structures. In respect of complete structures, the notice shall be affixed to the front door of the structure. In respect of incomplete structures, the notice shall be affixed anywhere on the structure.
2.3	By erecting a minimum of 5 notices boards in common areas in Extension 21, Extension 25 and Zondagskraal Kinross respectively and affix the notice to the notice boards; 
2.4	By distributing pamphlets in English and in two vernacular languages spoken by persons occupying Extension 21, Extension 25 and Zondagskraal Kinross, notifying the occupants of these proceedings. 
3	The section 4(2) notice and the pamphlets referred to in paragraph 2 of this order should set out information in terms of section 4(5)(d) of the PIE Act as well as inform the respondents who wish to oppose the application that they may obtain a copy of the notice of motion and founding affidavit filed in this application from the applicant’s attorneys. 
4	The date of hearing set out in the section 4(2) notice as required in terms of section 4 of the PIE Act shall not be a date earlier than 12 weeks from the date of this order. 
5	Any persons served with a section 4(2) notice in terms of paragraph 2 of this order, who wish to oppose this application, shall do so within the time period for filing a notice of intention to oppose and an answering affidavit within the time allowed by Uniform Rules of Court. 
6	The applicant shall, not later than 20 days of this order serve a report on the respondents’ attorneys, any respondent who has filed a notice of intention to oppose after being served with a section 4(2) notice in terms of paragraph 2 of this order, as well as the Registrar of this court. The report shall set out measures taken in accordance with government’s housing policy to provide temporary housing in emergency situations, as well as measures taken to reduce the backlog on the applicant’s housing waiting list.
7	Should the applicant wish to supplement its papers, it must do so within 10 days of delivery of the report referred to paragraph 6 of this order. 
8	Should the respondents wish to supplement their papers after receiving the report referred to in paragraph 5 of this order, they may do so within 20 days of service of the applicant’s supplemented papers. 
9	After the parties have delivered papers in terms of this order, any of the parties may set the application down for hearing. 
10	No order as to costs.  

_________________________________
MODIBA AJ
Counsel for the Applicant			Mr Rafedile
Instructed by:					Dikotope Attorneys
For the Respondent				Mr van Vuuren 
Instructed by: 					Lawyers for Human Rights
Date of hearing: 30 July 2014
Date of judgment: 26 September 2014