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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION (MAIN SEAT)

 

1.   REPORTABLE: YES/ NO

2.   OF INTEREST TO OTHER JUDGES: YES/NO

3.   REVISED.

Case Number:

1024/2020

                                                                                                                                                                                                                                      

In the matter between:

HOTAZEL DEVELOPMENTS (PTY) LTD

Applicant

 

and

 

SINKY THOMAS MNISI	First Respondent
AND NINE OTHER RESPONDENTS

 

 

JUDGMENT

 

 

Roelofse AJ:

[1]              In terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”), no one may be evicted [i] from their home[ii], or have their home demolished without an order of court made after considering all the relevant circumstances.[iii] PIE provides for the procedure[iv] and circumstances[v] under which an unlawful occupier’s[vi] occupation may be terminated.

 

[2]              The applicant seeks orders: confirming that the first respondent’s occupation of the applicant’s property constitutes unlawful occupation as meant in PIE[vii]; the eviction of the first respondent and his family members from the applicant’s property[viii], together with relief ancillary thereto[ix].

 

[3]              Only the first respondent opposed the application. [x]

 

[4]              The applicant describes the purpose of the application as follows:[xi]

 

“The main purpose of this application is to obtain an eviction order against the first respondent, his family members and/or any other persons who may reside through him in the house on the property, in terms of The Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, No.: 19 of 1998 as amended………………….[T]he Extension of Security of Tenure Act, No.: 62 of 1997 ……is not applicable in respect of this matter.” 

 

and

 

“Thus, an order will be sought to the extent that the first respondent is evicted from “the house” situated on “the property”, together with all his family members and/or any other persons who may reside through him, together with all their movable assets, including but not limited to any possible livestock they may own.”

 

[5]              The “house” the applicant refers to and from which it seeks the eviction, is situated on the Remaining Extent of the farm Barclays Vale, 288 Registration Division JT (“the property”)(as it was known when the application was launched).[xii]

 

[6]              Ms. Harriet Mnisi is the first respondent’s sister. Ms. Mnisi resides in the house together with the first respondent’s family members whose identifies are not disclosed by the first respondent. With regards to the house, the first respondents’ version is as follows:

 

“I have not “constructed a house” on the farm. My family live in a house constructed by Mr. Greathead. I tried to help my sister to renovate the house and built a wall around it, but Hotazel asked that the construction be stopped.”[xiii]

 

and

 

“….My sister lives in a building that has always been used as a home.”[xiv]

 

The first respondent’s defences

 

[7]              The first respondent raises two defences.

 

[8]              Firstly, the first respondent disputes that the applicant is the owner of the land and thus that the applicant lacks standing in the application.[xv]

 

[9]              Secondly, the first respondent alleges that he does not reside on the farm and therefore, he is not an occupier as contemplated in PIE[xvi]. In this regard, the first respondent states:[xvii]

 

“I was born and grew up on the farm, but it is not my primary residence. My sister, Harriet Mnisi, and several of my extended family members live there, and I visit them from time-to-time. But the farm was last my primary residence in 1981. In that year, I left the farm to look for work in Johannesburg, where I have become a successful businessman.”

 

and

 

“I am advised that PIE applies to the eviction of unlawful occupiers. I am furthermore advised that an “occupier” under PIE is a person who has his or her primary place of residence on the relevant land. The PIE Act does not apply to visitors or extended family members who may from time to time stay on land occupied by the person or family member who they are visiting.”  [xviii] (the first respondent’s underlining)

 

and

 

“I am just such a person. I do not live on the farm, but I visit my family and friends on it from time to time.” [xix]

 

[10]          In addition, the first respondent states:[xx]

 

“Hotazel has sought and obtained an order declaring that I am not an occupier of the farm, and interdicting me from taking possession of the farm. Hotazel is adamant that I do not live on the farm and has obtained a court order to that effect. I have no idea why it now wants to “evict” me from a farm everybody accepts I do not live on.” (my underlining)

 

[11]          The essence of the first respondent’s defence is captured in paragraph 10 of the answering affidavit as follows:

 

“Accordingly, this application is stillborn. It is to pursue a goal that Mr. Smuts has not disclosed to this Court, under a statute which simply does not apply between me and Hotazel. This application is dishonest and an abuse of process.”[xxi]

 

 

Ms. Mnisi’s situation

 

[12]           The first respondent alleges that: Ms. Mnisi lives with her family in the house; Ms. Mnisi occupies the house “through” him; and that Ms. Mnisi has occupied the house for a long time.

 

[13]          If the first respondent’s version over Ms. Mnisi’s occupation of the house is accepted, one may be tempted to consider whether both the provisions of PIE as well as the provisions of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) may not apply to Ms. Mnisi. This notion is immediately gainsaid by the fact that neither the first respondent nor Ms. Mnisi[xxii] relied upon the protecting granted to occupiers in terms of the provisions of PIE or ESTA in opposing the application.

 

[14]          I proceed to deal with the first respondent’s defences.

 

The locus standi defence

 

[15]          The first respondent alleges that the applicant has failed to allege and prove that it is the owner of-, or that it is in control of the property. This is what the first respondent says:[xxiii]

 

“Mr Smuts seeks relief in circumstances where he also knows that Hotazel is neither the owner nor the person in charge of the property….”

 

[16]          There is no merit in this allegation. Firstly, Mr. Smuts alleges at numerous places in the founding affidavit that the applicant is the owner of the land.  Secondly, Mr. Smuts explains in its replying affidavit the way the description of the property has transformed through consolidation and subdivision. Mr. Smuts explains that the applicant is still the owner of the property upon which the house is situated and in respect of which the eviction order is sought.

 

[17]          Mr. Smuts’ explanation of the transformation of the property description was challenged by the first respondent in an application in terms of the provisions of Rule 6(15)[xxiv] of the Uniform Rules.

 

[18]          Rule 6(15) requires that material sought to be struck must be scandalous, vexatious or irrelevant and that prejudice must be established if the material is not struck out.

 

[19]          The basis of the first respondent’s application to strike out is that the applicant is seeking to redefine and redescribe the portions of land in respect of which the applicant is seeking an eviction and therefore the applicant has fundamentally changed its case in reply. Clearly the first respondent sought to rely on prejudice caused by the perceived change in the applicant’s case in reply.

 

[20]          There is simply no merit in this objection. The house did not move. All that has happened is that the land description upon which the house is situated has changed. There can be no doubt that the applicant is still seeking an eviction order in respect of the specific house situated on the same land albeit under a different description. The evidence in the replaying affidavit regarding the property is in any event relevant and I see no prejudice to the first respondent if the evidence is allowed to stand.

 

[21]          While I am addressing the striking out application, I dispose of the striking out application in all respects.

 

[22]          The first respondent also objected to the applicant referring in reply to the previous applications mentioned in its founding affidavit. In this regard, the first respondent objects to the reference in the replying affidavit to specific paragraphs in the previous applications mentioned in the founding affidavit. The first respondent laments that the material in the previous applications should have been identified and disclosed in the founding affidavit.

 

[23]          The outcome of two applications under case numbers: 783/2017 and 965/2017 (“the previous applications”) are particularly relevant for the determination of this application and the rule 6(15) application.[xxv] The judgment and order made in the previous applications forms part of the evidential material before this court. As a matter of fact, when confronted by the finding and order in the previous applications, the first respondent confirms the judgment and the order made therein. In this regard, the first respondent says:[xxvi]

 

“I note that portions of the judgment of Legodi JP relied on here and confirm that I do not live on the property. Legodi JP finds that I am “not a resident, occupier”. This is quite correct…”

 

[24]          The first respondent, by relying on the judgment in the previous applications in his defence cannot simply now proclaim prejudice. In any event, the applicant’s averments in the previous applications applications lead to the judgment and order that was granted and therefore is also relevant in this application. There is no merit in this objection.

 

The PIE defence

 

[25]          In respect of the PIE defence, the first respondent alleges that he is not an occupier as contemplated in PIE. PIE does not outlaw all evictions - it outlaws illegal evictions. PIE does not detract from the property rights of the owner of land. It merely provides for the protection of unlawful occupiers against illegal eviction. A process must be followed before an eviction order is granted and executed, the focus being on the protection of an occupier’s right to access to housing. Obviously, a person who is not in occupation of land as contemplated in PIE, is not entitled to the protection PIE affords. Therefore, in such an instance, the owner of land is entitled to the common law protection of his/her property rights and the enforcement of same on common law grounds. This includes vacant and undisturbed possession in addition to bare dominium.

 

[26]          I decide the relief sought in the first prayer of the notice of motion[xxvii] on the first respondent’s version. In doing so, I am unable to order confirmation that the first respondent’s occupation of the property constitutes unlawful occupation as meant in PIE.

 

[27]          I return to Ms. Mnisi’s situation

 

[28]           Ms. Mnisi, together with the first respondent’s family members are still in occupation of the house despite a judgment delivered on 3 April 2018 and the order made by His Lordship Mr Justice Legodi JP on 1 February 2018 in the previous applications under case numbers: 783/2017 and 965/2017. The previous applications were launched by the applicant and another party against, inter alios, the first respondent[xxviii] and Ms. Mnisi.[xxix] The previous applications related to the same land as the land in this application.

 

[29]           The following finding was made by the court in those applications:

 

“[T]he applicants have provided sufficient information pointing to the fact that neither of the respondents to which the order related, are resident on the property…..”[xxx]

 

 The court ordered as follows (“the order”):

 

“No person, including the tenth to sixteenth respondents, their members and beneficiaries or any other person…..shall prevent them [the applicant, persons acting on the applicant’s behalf, shareholders, employees, its representatives, shareholders, any guest or visitor to the applicant, the applicant’s contractors] …from accessing or occupying the properties.” – paragraph 1.2 of the order.

 

“No person, including the tenth to sixteenth respondents, their members and beneficiaries or any other person, shall be entitled to enter the properties of the applicant for any reason whatsoever without written permission of the applicant.”- paragraph 1.5 of the order.

 

 

 

[30]          The order stands unchallenged. The order clearly interdicts the first respondent, Ms. Mnisi and the first respondent’s family members from occupying the properties. In addition, the order interdicts them from entering the properties without the express and written permission of the applicant. I find that the interdicts include the house for the house is situated on the property being one of the properties to which the order pertained.

 

[31]          Considering the order, the first respondent, Ms. Mnisi and the other persons occupying the house are in clear disobedience of both paragraphs 1.2 and 1.5 of the order.

 

[32]          In conclusion, the First Respondent, Ms. Mnisi and those family members of the first respondent living with her in the house were already found not to be occupiers. Nothing in the papers before me show that their situation has changed. As such, they have no defence against their eviction either under PIE or at all in this application.  The applicant is entitled to an order evicting the first respondent and all other persons from the house, including the property registered as the farm Kranskop 1041 JT.

 

The ancillary relief sought

 

[33]          The applicant has demonstrated that the conduct of the first respondent, Ms. Mnisi and the first respondent’s family members are in clear defiance and in open disregard of the order. I do not foresee that the first respondent, Ms. Mnisi and the first respondent’s family members will voluntarily comply with the eviction order. Therefore, the eviction order may need to be executed by the Sheriff assisted by the second to fourth respondents. The ancillary relief is warranted and shall be granted.

 

Costs

 

[34]          As to costs, the applicant has been successful in obtaining the main relief the application was aimed at – the eviction of the first respondent and all other persons occupying the house. These persons have disobeyed the order and should have known that the order prevented them from entering the house let alone occupying same as from the date of the order. Ms. Mnisi and none of the other persons in occupation of the house participated in these proceedings. A punitive costs order would have been warranted against Ms. Mnisi and the other persons occupying the house because of their disregard of the order had they participated in the proceedings. A punitive costs order is not requested. However, the first respondent’s opposition of this application on spurious grounds together with his clear disobeying of the order warrants this court’s displeasure. He must pay the costs of the application on a punitive scale. I am of the view that the employment of two counsel was warranted.

 

[35]          In the premises, I make the following order:

 

(a)           The Rule 6(15) application is dismissed.

(b)          Prayer 1 of the notice of motion is dismissed.

(c)          The first respondent, and all other persons in occupation of the house (also   known as “the clubhouse”) (“the evictees”) situated on the farm Kranskop 1041 JT (“the house”), is hereby evicted from the house and the farm Kranskop 1041 JT.

(d)       The evictees shall give vacant possession of the house to the applicant within 30 days of the date of this order.

(e)        In the event the evictees fail to comply with the order in paragraph (d) above, the Sheriff of this court and the second to fourth respondents are hereby authorised and directed to carry out the eviction of the evictees.

(f)         The first respondent is ordered to pay the costs of this application and the Rule 6(15) application on an attorney and client scale, such costs to include the costs consequent upon the employment of two counsel.

 

Roelofse AJ

Acting Judge of the High Court

 

               

                                               

DATE OF HEARING:	25 May 2021
DATE OF JUDGMENT:	9 June 2021

 

APPEARANCES

 

FOR THE APPLICANT:                             Adv R du Plessis SC

                                                                     Adv G Bench

INSTRUCTED BY:                                     Du Toit-Smuts Attorneys

 

FOR THE RESPONDENTS:                      Adv. S Wilson

                                                                     Adv Fakier

INSTRUCTED BY:                                     Kropman Attorneys

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