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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

CASE NO: 1088/2007

DATE HEARD: 28/2/08

DATE DELIVERED: 29/2/08

NOT REPORTABLE

In the matter between:

ISAK PLAATJIES APPLICANT

and

EASTERN CAPE DEVELOPMENT

CORPORATION 1^ST RESPONDENT

MESSENGER OF THE COURT 2^ND RESPONDENT

The applicant applied to interdict his eviction from his home. The respondent had taken a default judgment against him for arrear rental and had thereafter set about evicting him. It was held that no order of court, as required by s 26(3) of the Constitution authorised the eviction and the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 had not been complied with. It was declared that the eviction of the applicant was unlawful, the respondent was interdicted from evicting him contrary to the above provisions and the respondent was ordered to pay the applicant’s costs. The respondent, as an organ of state, was criticised for the way in which it conducted itself.

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JUDGMENT

PLASKET J

[1] This is the return day of a rule nisi in which the applicant was granted interim relief amounting to an interdict preventing, and to the extent necessary, reversing his eviction from the home he and his family have occupied since mid–2003, pending the finalization of these proceedings. That home is situated at No. 24 Don Thompson Drive, Fort Gale, Mthatha.

[2] The papers are, to put it as mildly as I can, quite unhelpful mainly because the parties appear to be unsure of what the true issues are and also appear to have allowed their mutual belligerence to get the better of the need for thoughtful legal analysis.

[3] The material facts are these. The applicant, who had lived in the property since mid-2003, signed an offer to purchase the property from the first respondent on 23 February 2006. This offer was required to have been accepted within 30 days. It had, in fact, lapsed when the applicant signed it but nothing is made of this by Ms PN Madaza, the first respondent’s attorney and the deponent to the answering affidavit on its behalf. She states that, by the first respondent’s conduct, it condoned the late acceptance. It is not disputed that the applicant has paid nearly R400 000.00 to the first respondent’s conveyancers but that they have not transferred the property to him.

[4] The problem in that respect appears to be that the applicant – certainly as far as the first respondent is concerned – is in arrears in the payment of rent. As a result, Ms Madaza says, the first respondent has instituted various actions against the applicant for the recovery of rent. Case number 1895/07 in the Mthatha Magistrate’s Court is the only such case, on either party’s version, that is relevant to these proceedings. In it, a default judgment was taken against the applicant for payment of R33 000.00 together with interest. After this prayer, the words ‘and compelling them to vacate house No. 24 Don Thompson Drive, Fort Gale, Mthatha’ appeared but a line had been drawn through these words and the deletion had been signed on the left hand margin. (Ms Madaza claims in her affidavit that her copy of the default judgment does not have these words deleted but – significantly, and inexplicably -- she failed to attach this copy to her affidavit.)

[5] Subsequent to the default judgment being granted a warrant of execution, which bears case number 1895/07 and the signature of Ms Madaza above her firm’s name and address, was issued by the clerk of the court. It states:

‘WHEREAS in this action the said Plaintiff on the 12 July 2007 obtained judgment for the ejectment of the said Defendant from the premises or land known as No. 24 Don Thompson Drive, Fort Gale, Mthatha.

This is to authorise and require you to put the said Plaintiff into possession of the said premises or land by removing therefrom the said Defendant for which this shall be your warrant.’

[6] It would appear that, pursuant to this warrant, the applicant and his family were evicted from their home. They have been placed back in possession of the home by the interim order. The applicant applied to rescind the judgment in case number 1895/07. That application, I was informed form the bar, was successful. It appears to be irrelevant to these proceedings, as no eviction order was granted against the applicant. The warrant of execution is thus based on patently incorrect information.

[7] Even if the words that were deleted in the default judgment had not been deleted, it is clear that the execution of an eviction order would not have been lawful because the provisions of the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 were not complied with. Section 4 provides that ‘[n]otwithstanding 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’. The first respondent’s efforts to evict the applicant were therefore unlawful and without any lawful authority whatsoever.

[8] The first respondent is an organ of state, having been created and empowered by the Eastern Cape Development Corporation Act 2 of 1997 (EC). It performs public functions with public funds.¹ It is bound by the Bill of Rights.² It is under an obligation to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’.³ It can legitimately be expected of organs of state that they behave in an exemplary manner, particularly when the fundamental rights of citizens are in issue. That did not happen in this case. The first respondent behaved as though it was above the law, even resorting to self-help. It showed contempt for the Constitution and the fundamental right of the applicant not to be evicted from his home without an order of court having been made after all relevant circumstances have been considered. I trust that those who manage the first respondent, and those to whom they are accountable, will take pro-active steps to ensure that the way in which it has conducted itself in this case does not happen again.

[9] The following order is made:

(a) It is declared that the first respondent’s eviction of the applicant from his home at No. 24 Don Thompson Drive, Fort Gale, Mthatha was unlawful because no order of court, as required by s 26(3) of the Constitution, authorised it and the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 were not complied with.

(b) The first respondent is interdicted from evicting the applicant from his home at No. 24 Don Thompson Drive, Fort Gale, Mthatha without an order of court having been obtained and the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (and any other applicable law) being complied with.

(c) The first respondent is directed to pay the applicant’s costs of suit.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For the applicant: Ms P. Malefane of Mdledle-Malefane and Associates, Mthatha

For the respondent: Mr T.H. Melane briefed by Nkoli, Madaza and Associates, Mthatha

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