IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

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1 1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NUMBER: A3023/2017 DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES (2) OF INTEREST TO OTHER JUDGES: YES (3) REVISED: In the appeal of: RACHEL TJIANE Appellant And LESETJA WILLIAM MANAKA UNLAWFUL OCCUPANTS OF 6219 WINNIE MANDELA EX 23 EKURHULENI METROPOLITAN MUNICIPALITY First Respondent Second Respondent Third Respondent Coram: WEPENER et VALLY JJ

2 2 Heard: 15 August 2017 Delivered: 18 August 2017 Summary: Eviction. Locus standi of applicant, owner. It is only a registered owner who can bring proceedings. Prior to registration of transfer to a person being entitled to obtain ownership in the future, any action may only be instituted by the existing owner, unless the applicant can show that he/she is the person in charge of the land. JUDGMENT WEPENER J: [1] The appellant appeals against a decision of the magistrate of Tembisa who granted an eviction order against her. The first respondent based his case on the PIE Act 1 but this was placed in dispute by the appellant who denied that she was an unlawful occupier as defined in the PIE Act. The questions that crystallised before the court were: [1.1] did the first respondent have locus standi to seek the eviction of the appellant; [1.2] was the appellant and unlawful occupier for purposes of the PIE Act? and if the appellant is unsuccessful in any of the above two questions; [1.3] whether the magistrate complied with the obligation placed on judicial officers in eviction matters to consider the consequences of the appellant becoming homeless, if evicted. [2] The first respondent s application was squarely based on the PIE Act and premised on the fact that he was the registered owner of the property. No cas of the property e was properly pleaded by the first respondent that he was a person in 1 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

3 3 charge 2 of the property. This is relevant by virtue of the fact that, pursuant to the provisions of the PIE Act, an applicant for eviction from land must be an owner thereof or a person in charge of the land. The distinction is important as the appellant reacted to the allegation of the first respondent who alleged that he was the owner. In a first answering affidavit, the appellant did not deal with the allegations of ownership made by the first respondent. In a supplementary affidavit the appellant denied that the ownership of the property vested in the first respondent by virtue of the fact that the third respondent, the Ekurhuleni Metropolitan Municipality, is allegedly the owner thereof. This denial and assertion by the appellant, is consistent with the allegations of the first respondent who, in order to attempt to prove ownership, relied on a letter issued by the Ekurhuleni Metropolitan Municipality, which states as follows: This letter serves to confirm that Lesetja William Manaka identity number [ ] is the occupant and approved beneficiary of stand number 6219 Tembisa Extension 23 since 1993 to date. The beneficiary does not have Title Deed because the Township is not yet proclaimed but the Ekurhuleni Municipality is still busy in the process of registration. [3] It is not clear if the Ekurhuleni Metropolitan Municipality is indeed the owner of the land but it is common cause and the legal representative of the first respondent was constraint to concede, that the first respondent indeed was not the registered owner of the premises. Based on the letter, the first respondent, at best, has a spes to obtain ownership of the property on some future date after proclamation of the township. In a further answering affidavit to the first respondent s supplementary affidavit, the appellant responds to the first respondent s averments regarding ownership of the Ekurhuleni Metropolitan Municipality as follows: The contents of this paragraph are denied the property belongs to me. I refer this Honourable court to annexure A of my founding affidavit Annexure A is the very same letter which I have quoted above. 2 See the definition of a person in charge in the PIE Act: A person in charge means a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question.

4 4 [4] The difficulty with the first respondent s version is that the property clearly does not belong to him nor is he or can he be the registered owner thereof. 3 In addition, the letter from the Ekurhuleni Metropolitan Municipality makes it clear that the first respondent has not received registration of transfer of the property into his name. The letter from the Ekurhuleni Metropolitan Municipality does not purport to support the first respondent s claim to ownership of the property but indeed proves the contrary. This being so, the first respondent s locus standi to bring eviction proceedings on the grounds of ownership in terms of the PIE Act is absent. [5] The first respondent attempted to rely on a second ground in the definition section of the PIE Act in order to establish locus standi, ie that he is the person in charge of the land and that he was entitled to seek the eviction on that basis. 4 The difficulty that arises with this argument is that the matter was never raised in the affidavits filed on behalf of the first respondent. The first respondent steadfastly relied on an alleged ownership. Had the first respondent relied on the former ground for his locus standi, such fact could and would have been fully canvassed. As the papers stand, the issue was not mentioned and I cannot find that the affidavits widened the issues between the parties as the issue did not feature. In the circumstances the first respondent failed to properly place himself within the provisions of the PIE Act in order to be afforded assistance. Having come to this conclusion it would be speculative to fall 3 See s 67(1) of the Town Planning and Townships Ordinance 15 of 1986: Prohibition of certain contracts and options 1) After an owner of land has taken steps to establish a township on his land; no persons subject to the provisions of section 70 a) Enter into a contract of sale, exchange or alienation or disposal in any manner of an erf in the township; b) Grant and option or otherwise acquire an erf in a township, until such time as the township is declared and approved township: provided that the provisions of the sub-sections shall not be construed as prohibiting an person from purchasing land on which he wishes to establish a township subject to a condition that upon the declaration of the township as approved township, one or more of the erven therein will be transferred to the seller. 2) A contract entered into in conflict with the provisions of sub-section (1) shall be of no force and effect. 4 Section 4 of the PIE Act reads: 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 an unlawful occupier.

5 5 back on the notion that first respondent was a person in charge of the land clothed with authority to act. Although this aspect featured principally in argument on appeal, it was not relied upon by the first respondent in his affidavits. The magistrate, in all likelihood due to the letter issued by the Ekurhuleni Metropolitan Municipality, found that the applicant is the approved beneficiary of the property as per the confirmation from the third respondent. Although the property has not yet been transferred to the applicant, applicant has been duly authorised by the third respondent and as such qualifies as the person in charge who has the authority to institute the proceedings in terms of the PIE Act. I cannot agree. The Ekurhuleni Metropolitan Municipality did not authorise the first respondent to do anything, least of all clothe him as the person in charge who has authority to institute legal proceedings in terms of the PIE Act. Not only is there no basis for changing tack from registered ownership to the concept of a person in charge, the aforesaid reasoning which concludes that authority had been granted to the first respondent, is incorrect. That in turn, renders the conclusion that the first respondent was in charge of the land incorrect. Counsel for the first respondent lamented how a person in the first respondent s position could then ever bring eviction proceedings. The answer is simple. Such a person must either invoke the assistance of the owner or plead and prove a case that he or she is a person in charge of the land, which the first respondent failed to do in this matter. [6] The appellant further submitted that she was not an unlawful occupier due her occupation having derived from her deceased husband who obtained the right of occupation when the first respondent handed over the premises to her husband. That submission shoots the appellant in the foot because, if correct and the appellant was not an unlawful occupier, there may have been no need for the first respondent to comply with the provisions of the PIE Act in the first place. But I need not consider this issue as the first respondent lacked locus standi to act in pursuance to the PIE Act and, as a non-owner, lacked capacity under the common law and he failed to show grounds, other than the purported ownership, upon which he would be entitled to the order for eviction. In any event, placing the

6 6 matter under the common law does not exonerate owners from compliance with the provisions of PIE as is the case with ESTA, 5 as the fairness of an eviction would still have to be considered having regard to all the relevant factors 6 [7] The first respondent consequently failed to establish his locus standi to embark on the eviction proceedings which results in it being unnecessary to deal with the remaining issues, save to mention that the appellant failed to set out any facts to show that she would be rendered homeless, if evicted. 7 [8] In all the circumstances, the appeal succeeds with costs. The order of the magistrate is set aside and replaced with the following order: The application is dismissed with costs. Wepener J I agree. VALLY J Counsel for Appellant: T. Mathopo 5 Extention of Security of Tenure Act 62 of Malusi and Others v Voges 2016 (3) SA 370 (CC) paras 37 and 38; Hattingh and Others v Juta 2013 (3) SA 275 (CC) para Unlawful occupiers of Erf 2690 Vosloorus v Kganyago and Others [2016] ZAGPJHC 46 (31 March 2016).

7 7 Attorneys for Appellant: Mathopo Attorneys Counsel for Respondents: S.S. Tebeile Attorneys for Respondents: Mampa Edwin Thupane Attorneys