IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA RANDBURG CASE NUMBER: LCC 101R/00 MAGISTRATE S COURT CASE NUMBER: 3381/99 In chambers: GILDENHUYS AJ Decided on: 2 February 2001 In the review proceedings in the case between: PHARO S PROPERTIES CC ROJEGA CC PHARO S FISHERIES (PTY) LTD and HENRY KUILDERS NEL KUILDERS MURIAL BESTER CORNELIUS BESTER CELIA CORAIZIN ABRAHAM CORAIZIN SELMA BRUTUS PATRICIA BRUTUS DUANE BRUTUS TROY BRUTUS HENDRIK BRUTUS DOMINIC BRUTUS 1 st Applicant 2 nd Applicant 3 rd Applicant 1 st Respondent 2 nd Respondent 3 rd Respondent 4 th Respondent 5 th Respondent 6 th Respondent 7 th Respondent 8 th Respondent 9 th Respondent 10 th Respondent 11 th Respondent 12 th Respondent JUDGMENT GILDENHUYS AJ: [1] This case comes to me from the Magistrate s Court for the district of Vredenburg on automatic review in terms of section 19(3) of the Extension of Security of Tenure Act. 1 I will refer to that Act as the Tenure Act. My task is limited to reviewing the eviction orders made by the magistrate. 1 Act 62 of 1997, as amended.

2 2 Consequently, only those respondents against whom eviction orders were made are involved in this review. 2 [2] When the proceedings in the magistrate s court commenced, the first and second applicants were the registered owners of the farm Paternoster 1062, colloquially known as Vaalplaas. The farm is situated on the West Coast of the Western Cape Province. The respondents are occupiers of Vaalplaas, and the proceedings in the magistrate s court were for their eviction in accordance with the Tenure Act. Whilst the proceedings were pending, but before the commencement of the hearing in the magistrate s court, ownership of Vaalplaas was transferred to the third applicant. The three shareholders of the third applicant are also members of the first or the second applicant. They are all members of the Pharo family. On 3 April 2000 the third applicant was, by order of the magistrate, joined in the proceedings. [3] The respondents are fisher folk. Some family members were employed in fishing enterprises which belonged to the Pharo family. They were, together with other employees, given permission to reside on Vaalplaas. The fishing enterprises became unprofitable, and were disposed of. The owners decided to develop a holiday township on Vaalplaas. For that to succeed, the owners considered it necessary to remove the fisher folk living on Vaalplaas. At the time, RDP 3 housing projects were being developed at Paternoster. Most of the fisher folk left Vaalplaas voluntarily and took up houses in these projects. Some refused to move. They are the respondents in this case. [4] After the first and second applicants terminated, or purported to terminate, the rights of residence of the respondents, 4 and after they gave the requisite notices to vacate 5, and notices of their intention 2 Apart from the fifth and sixth respondents (whose position will be discussed later), all the respondents against whom eviction orders were not granted are family members living with those respondents against whom eviction orders were granted. It was obviously the intention of the magistrate that everybody holding title through the respondents against whom eviction orders were granted may also be evicted when the time comes. 3 Reconstruction and Development Programme. 4 In terms of section 9(2)(a) read with section 8 of the Tenure Act. 5 In terms of section 9(2)(b) of the Tenure Act.

3 3 to obtain an eviction order, 6 the present proceedings were launched in the Vredenburg Magistrate s Court. A lengthy hearing over many days ensued. The magistrate granted eviction orders against the first, third and seventh respondents. The first respondent was not represented, and did not defend the proceedings. Mr Green represented the third and seventh respondents. At the time the eviction order was granted, all three of them had been awarded RDP houses. The RDP houses are smaller than the Vaalplaas houses. In some respects, the finishes of the RDP houses are inferior. Movable structures have been added to the Vaalplaas houses of the first, third and seventh respondents. To make up for the differences, the magistrate (by agreement between the parties 7 ) determined what it will cost to upgrade the RDP houses to a size and standard which is not inferior, and to relocate the movable structures. The applicants were ordered to pay the amounts so determined into Mr Green s trust account, which they have done. 8 [5] The fifth and sixth respondents have resided on Vaalplaas for longer than 10 years and had, at all relevant times, reached the age of 60 years. In terms of section 8(4)(a) of the Tenure Act, the right of residence of such occupiers may not be terminated unless they have committed a breach contemplated in section 10(1)(a), (b) or (c). Although the applicants argued that such a breach was committed, the magistrate refused to evict those two respondents from Vaalplaas. The court ordered them to move to a similar renovated house in Vaalplaas upon fourteen days notice to be given to them by the applicants. Their existing house is in the way of a new road planned for the proposed township. Such a moving order was not asked for in the papers, but both Mr Breitenbach (for the applicants) and Mr Green assured me that it was canvassed at the hearing. 6 In terms of section 9(2)(d) of the Tenure Act. 7 The agreement only related to the determination of the costs of enlarging and upgrading the RDP houses and to the costs of relocating the movable structures. It was entered into subject to such regte in hoër beroep as the parties may have. The first respondent was not party to this agreement. 8 Mr Green undertook, during the hearing, to look after the interests of the first respondent in respect of the moneys paid into his trust account.

4 4 [6] The magistrate s order (granted on 17 November 2000) reads as follows: 1. Dat die applikante aan al die vereistes vir die uitsetting van Respondente 1, 3 en 7 plus almal wat saam met hulle woon voldoen het en die aansoek om uitsetting teen hulle toegestaan word. 2. Dat die aansoek om uitsetting van Respondente 5 en 6 geweier word. Hul verblyfreg kan nie beëindig word nie. Die Hof gelas dat hulle na &n soortgelyke gerestoureerde huis op Vaalplaas trek sodra die applikante hulle 14 dae kennis van verhuising gee. 3. Wat betref geskikte alternatiewe akkommodasie moet die applikante (i) die respondente se hophuise opgradeer sover dit die pleister en verf van die binnemure betref, aanbring van plafonne en aanbring van vloerbedekking. (ii) die respondente se 21 vierkant meter hophuise vergroot tot die oppervlakte van die vaste strukture wat hulle tans bewoon. In die geval van Respondent 1-24 vierkant meter, Respondent 3-17 vierkant meter, Respondent 7-36 vierkant meter. (iii) Kragtens Artikel 13(2)(a) word die applikante gelas om die respondente se koste verbonde aan die verwydering en plasing van die verwyderbare strukture te betaal. 4. Die koste sal deur my vasgestel word na ontvangs van beëdigde verklarings wat voor of op 1 Desember 2000 deur beide regsverteenwoordigers aan my voorgelê sal word. Koste sal bepaal word op grond van &n ooreenkoms tussen die partye - bewysstuk 1. Die bedrag deur my bepaal sal deur die applikante nie later as 15 Desember 2000 in Respondente se regsverteenwoordigers se trustrekening inbetaal word. 5. (i) Die datum van ontruiming word kragtens Artikel 12(1)(a) op 28 Januarie 2001 vasgestel. (ii) Indien die respondente nie ontruim nie word dit kragtens Artikel 12(1)(b) gelas dat hulle op 31 Januarie 2001 uitgesit word. 6. Die uitsettingbevel word egter kragtens Artikel 19(3) opgeskort hangende hersiening deur die Grondeise Hof. 7. Die applikante moet die respondente kragtens Artikel 13(1)(c) tot 28 Januarie 2001 geleentheid gee om hulle strukture wat aangebring is te verwyder. On 5 December 2000 the following supplementary order was made: Die volgende bedrag moet voor 15 Desember 2000 in mnr M Green se trustrekening inbetaal word: Henry Kuilders R Muriel Bester R Selma Brutus R TOTAAL R111584,04

5 5 [7] Reasons for the magistrate s order of 17 November 2000 were orally given, electronically recorded and form part of the record. 9 [8] Several aspects of the order given by the magistrate caused me concern. I recorded my concerns in a letter addressed to the parties legal representatives and to the magistrate. Thereafter, on 27 January 2001, I heard argument in open court from Mr Breitenbach and Mr Green. I am indebted to them for their assistance. [9] I am only entitled to review an order made by a magistrate under the Tenure Act if the order is an eviction order. 10 The nature of such a review was described in Lategan v Koopman en Andere 11 to be as follows: Die Hof moet as uitgangspunt bepaal of geregtigheid geskied het. Sodoende sal die Hof n breë benadering volg, en die bevinding van die landdros nie so nougeset onder oë neem as wat by n appèl die geval mag wees nie. 12 [10] My first concern was whether a new owner of land may rely on the acts of his predecessor in title for compliance with the requirements for an eviction order under the Tenure Act, particularly in relation to the termination of the occupiers right of residence and the giving of the requisite notices under section 9(2)(a), (b) and (d). The term owner is defined as: the owner of the land at the time of the relevant act, omission or conduct The definition clearly contemplates changes in ownership. Section 24 of the Tenure Act provides that the rights of an occupier shall be binding on a successor in title of an owner of the land concerned, and also that any consent contemplated in the Tenure Act given by an owner shall be binding on his or her successor in title, as if he or she had given 9 This is an amended paragraph. It was amended in terms of section 35(12)(b) of the Restitution Act, Act 22 of 1994 on 23 February 2001 to correct a patent error. 10 Section 19(3) of the Tenure Act (3) SA 457 (LCC); [1998] 3 All SA 603 (LCC). 12 Above n 11 at para [11]. 13 The definition of owner is contained in section 1 of the Tenure Act.

6 6 it. The Tenure Act does not deal with the converse situation, that is whether an owner may rely on something done or a notice given by his or her predecessor in title in order to comply with the requirements for an eviction order as laid down in the Tenure Act. If not, a new owner of land will have to perform the necessary acts and give the necessary notices afresh. This can only lead to a waste of time and money. Although it is one of the purposes of the Tenure Act to extend the rights of occupiers, recognition must also be given to the rights, duties and legitimate interests of owners. 14 That can best be achieved by extending the principle that an owner is bound by the rights and consents given to an occupier by his or her predecessor in title, to the principle that an owner may avail himself or herself of acts done and notices given by his or her predecessor in title in order to achieve the eviction of an occupier. A purposive interpretation of the Tenure Act will make such an extension possible. It follows that, in the present proceedings, the third applicant must be entitled to rely on the acts, omissions or conduct of the first and second applicants relevant to the eviction of the respondents, particularly with regard to complying with the requirements of section 9(2). [11] The next, more difficult, issue is whether the order requiring the fifth and sixth respondents to move to another soortgelyke gerestoureerde huis on Vaalplaas is an eviction order or not. If it is not, I have no jurisdiction to review it. If it is, the next issue would be whether the magistrate s court has jurisdiction to make such an order under the Tenure Act, and if so, whether the order is sufficiently specific. Must an owner who, for whatever reason, wants to move an occupier to different accommodation on the same land, not identify the other accommodation to enable the court to decide whether it is suitable? I will first consider the issue of whether the order to move is an eviction order. [12] The term evict is defined in the Tenure Act as: to deprive a person against his or her will of residence on land or the use of land or access to water which is linked to a right of residence in terms of this Act, and eviction has a corresponding meaning See the preamble to the Tenure Act. 15 The definition is in section 1.

7 7 Mr Breitenbach submitted that the definition of evict in the Tenure Act is focused on land, in the sense of a specific land unit. It is, for example, sometimes necessary for farmers to move their labourers and other people who occupy their farms from one dwelling to another, should circumstances so require. Mr Breitenbach argued that such a move does not deprive the occupier of residence on land. He contrasted the definition in the Tenure Act with the definition of evict in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. 16 The latter definition reads: evict means to deprive a person of occupation of a building or structure, or the land on which such building or structure is erected, against his or her will, and eviction has a corresponding meaning; The definition s main focus seems to be on the building or structure which is occupied, and not so much on the land. [13] Section 9(1) of the Tenure Act provides that an occupier may be evicted only in terms of an order of court issued under the Tenure Act. Section 9(2) of the Tenure Act allows a court to make an order for the eviction of an occupier if certain requirements are met, and certain notices have been given. One of the requirements is that the occupier s right of residence must have been terminated. 17 One of the requisite notices is a notice calling upon the occupier to vacate the land (not his particular dwelling on the land). 18 Section 19(3) of the Tenure Act requires the automatic review of any order for eviction granted by a magistrate s court. That can only be an order for eviction as envisaged in section 9. It is clear from the provisions of section 9, particularly section 9(2), that an order for eviction is an order in terms of which the occupier must leave the particular land, not an order in terms of which the occupier must move to a different dwelling on the same land. The order which the magistrate made against the fifth and sixth respondents is not, for the purposes of section 19(3), an eviction order and is therefore not subject to automatic review. 16 Act 19 of The definition is in section Section 9(2)(a) of the Tenure Act. 18 Section 9(2)(b) of the Tenure Act.

8 8 [14] The Tenure Act does not expressly grant a court the power to amend the right of residence of an occupier in respect of land, or to amend his or her right to use the land. The jurisdiction of the magistrate s court appears to be limited to proceedings for eviction or reinstatement, to criminal proceedings, to the grant of interdicts in terms of the Tenure Act, and to the issue declaratory orders as to the rights of a party in terms of the Tenure Act. 19 Such jurisdiction might not include an amendment to the right of residence of an occupier in respect of land. Because of my finding that the order made against the fifth and sixth respondents is not subject to automatic review, I need not decide that issue in this judgment. I also need not decide whether the order dat hulle na n soortgelyke gerestoureerde huis op Vaalplaas trek is sufficiently specific. It may well be too vague. It might be attacked on appeal or on ordinary review. I cannot deal with it under my powers of automatic review. [15] Finally, it is necessary to substitute some terms of the magistrate s eviction orders, not because the thinking behind the orders is wrong, but to express the intention of the orders with greater clarity, to remove confusion and to give the orders better efficacy. [16] In terms of the magistrate s order... moet die applikante... die respondente se hophuise (RDP houses) opgradeer.... The intention is not that the applicants must undertake the task of upgrading any of the RDP houses, as the order now seems to read, but that the third applicant must pay for the upgrading and also for the removal and reinstatement of the mobile structures. To give effect thereto, paragraph 3 of the magistrate s order of 17 November 2000 is hereby substituted by the following: 3 Wat betref geskikte alternatiewe akkommodasie moet die derde applikant die koste betaal om die 1 ste, 3 de en 7 de respondente se hophuise op te gradeer en te vergroot tot die oppervlaktes van die vaste strukture wat hulle tans bewoon, en ook die koste verbonde aan die verwydering en herplasing van die verwyderbare strukture. [17] The upgrading, removal and reinstatement costs were determined by the magistrate in respect of 1 st respondent at R36 354,96, in respect of 3 rd respondent at R25 016,43, and in respect of 7 th respondent at R50 212,65. I was informed from the bar that these amounts have already been paid into 19 Section 19(1) of the Tenure Act.

9 9 Mr Green s trust account. The magistrate did not determine when the moneys may be released by Mr Green to the respondents concerned. To accommodate this omission, the following is hereby added to the magistrate s order of 5 December 2000: Die bedrae wat elkeen van die 1ste, 3de en 7de respondente toeval en deur Mnr Green in trust gehou word, moet aan hulle uitbetaal word op die vroegste van die onderstaande twee datums: (a) (b) op 28 Februarie 2001; of indien enige betrokke respondent sou besluit om nie teen die uitsettingsbevel te appèlleer nie, sodra hy of sy van sy of haar reg om te appèlleer afstand gedoen het, en sy huis op Vaalplaas ontruim het. I have added the second alternative pursuant to a request from Mr Breitenbach. [18] The dates determined by the magistrate in terms of section 12(1) of the Tenure Act and incorporated in paragraph 5 of his order of 17 November 2000 are, because of the time which has since elapsed, no longer suitable. There could also be some difficulties with the way in which the magistrate worded paragraph 5. To accommodate this, paragraph 5 of the order of 17 November 2000 is hereby substituted by the following: (a) die 1 ste, 3 de en 7 de respondente moet Vaalplaas op 26 Februarie 2001 ontruim; (b) die 3 de applikant mag die uitsettingsbevel teen die 1 ste, 3 de of 7 de respondent op 27 Februarie 2001 laat uitvoer indien die betrokke respondent Vaalplaas nie op 26 Februarie 2001 ontruim het nie. [19] Subject to the above substitutions and additions, the eviction orders against the 1 st, 3 rd and 7 th respondents are hereby confirmed. ACTING JUDGE GILDENHUYS For the applicants: Adv A M Breitenbach instructed by Jan S de Villiers & Son, Cape Town. For the 3 rd, 5 th 6 th and 7 th respondents: Mr M B Green, Paarl.

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