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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED.

 

CASE NO: 36311/2020

11/8/2020

 

In the matter between:

 

D SEALE                                                                                                         First Applicant

J MOTHAPI                                                                                                   Second Applicant

J MOLOYA                                                                                                    Third Applicant

E MONAGENG                                                                                             Fourth Applicant

C BOSHOMANE                                                                                           Fifth Applicant

G T SEPHURANE                                                                                         Sixth Applicant

L N & 441 OTHERS                                                                                      Seventh Applicant

 

and

 

A G KRUGER N.O.                                                                                       First Respondent

P B KRUGER N.O.                                                                                        Second Respondent

TAMBURA 69 TRUST                                                                                 Third Respondent

NATIONAL COMMISSIONER OF POLICE                                            Fourth Respondent

THE STATION COMMANDER, SILVERTON SAPS                              Fifth Respondent

CITY OF TSHWANE METROPOLITAN MUNICIPALITY                    Sixth Respondent

THE SHERIFF                                                                                               Seventh Respondent

 

JUDGMENT

 

D S FOURIE, J:

[1]          This is an urgent application in terms whereof the applicants purportedly rely on acts of spoliation by the respondents. The essence of the relief sought is that the first to fifth respondents must "restore possession of dwellings" belonging to the applicants at the Hatherley Farm in the District of the City of Tshwane Metropolitan Municipality. The applicants also apply for an order prohibiting and preventing the first to fifth respondents from "demolishing the structures erected by the applicants". The application is opposed by the first, second and third respondents.

[2]          The essence of the applicants' case is that on 30 March 2020 they gained occupation of the Farm Hatherley together with their family members which included minor children, the elderly and people with disabilities. They occupied the farm until 3 August 2020 when they were forcefully evicted by members of the South African Police Services under the control and supervision of the fourth and fifth respondents. It was alleged by the South African Police Services that the eviction took place in terms of a court order dated 24 March 2020.

[3]          According to the applicants their eviction does not comply with Regulation 36 of the Regulations published in the Government Gazette of 28 May 2020 which provides, inter alia, that an order of eviction may be stayed and suspended until the last day of the Level 3 period, unless a Court decides that it is not just and equitable to stay and suspend the order. According to the applicants they are destitute, have no place to stay and are heavily affected by the impact of the COVID-19 Pandemic. A copy of the court order referred to by the applicants is attached to the founding affidavit, indicating that an order had already on 24 March 2017 been granted against the occupiers of Portions 34, 35, 36, 38, 40 and 41 of the Farm Hatherley.

[4]          The case for the first, second and third respondents ("the respondents") is, briefly stated, that the applicants had not been spoliated but evicted in terms of an existing court order that was already granted on 24 March 2017. It is also pointed out that no case for either an interim or final interdict has been made out. According to the respondents the Trust is the registered owner of the property concerned and is in the process of having it proclaimed as a township. A large amount of money has already been invested in the town planning process and the Trust is currently negotiating to sell the property for a significant sum.

[5]        It is further explained that during March 2017 there was already a threatened ''land invasion of the site". The Trust then had to obtain urgent interdict to stop the invasion which was subsequently granted on 24 March 2017. The order was thereafter properly executed by the Sheriff. According to the respondents the first sign of trespassers happened on Thursday 9 July 2020 when guards of a security company noticed individuals at the site with spades. An unidentified individual purported to sell "stands" of R500 each. The respondents also rely on photographs indicating illegal demarcation at the site and that "at such date no structures had been erected at the site".

[6]          On 17 July 2020 a second wave of trespassers appeared at the site which approximately numbered 50 individuals. One of the invaders promptly erected an "office" and proceeded to sell stands at R2 000 each. The Trust thereupon, via the security guards, distributed the order amongst the trespassers. It also requested the Sheriff to enforce the order. On 22 July 2020 the Sheriff reported that the court order had been served on Monday 20 July 2020 to everyone at the site and that an operational plan would be devised in cooperation with Public Order Policing, as well as the Metro Police, to execute the order. On Wednesday 29 July 2020 it appeared that the number of trespassers had dramatically increased to approximately 600 and that they were preparing to erect informal homes as sheets of corrugated iron and poles were noticed.

[7]          On 3 August 2020 at about 09:00 the order was implemented by the Sheriff and the South African Police Service when between 317 and 345 trespassers and their shacks were removed from the site in terms of the court order. According to the respondents the reference to "minor children, the elderly and people with disabilities" is obviously included to gain sympathy as those who occupied the site did so with full knowledge of the order. According to the papers before me no replying affidavit was filed.

[8]          The court order on which t e respondents rely applies to the "occupiers of Portions 34, 35, 36, 38, 40 and 41 of the Farm Hatherley". The order reads as follows:

 

"1.       The first respondents are interdicted from invading and taking possession of the property known as …. of the Farm Hatherley ... and more specifically the following:

1.1     from demarcating stands at the site;

1.2     from erecting structures/houses at the site;

1.3    from attempting to prevent the South African Police Services or the Metropolitan Police of the City of Tshwane or the Sheriff from carrying out their duties in preventing illegal occupation of the site;

1.4    from trespassing at the site;

1.5    from proclaiming that any stands at the site are available for sale or demarcation;

1.6    any individuals trespassing the site may be evicted by the Sheriff and second and third respondents;

1.7    Applicants and/or the Sheriff are entitled to remove any illegal structures at the site. '"·

 

2.       Second and third respondents are ordered to assist Tambura 69 Trust ... and the Sheriff in their endeavours to prevent the unlawful invasion and/or occupation and/or trespassing at the site and-to take the necessary steps preventing same.

3.        The Sheriff of this Court is ordered to serve the order on the first respondents in the following manner:

3.1   By attaching this order to a notice board to be erected at the site by the Trust;

3.2   By reading the order out over a public address system in the English and North Sotho language;

3.3   By serving this order on the person apparently in charge of selling stands at the site prior to township establishment.

 

4.        The Sheriff is ordered to evict all occupants at the site who do not have the consent of the Trust to occupy. For this purpose second and third respondents are ordered to assist the Sheriff. The Sheriff is also authorised to call upon the assistance of private security firms for purposes of enforcing this order."

 

[9]          It has also been contended in the answering affidavit, taking into account the respondents' explanation, that the applicants at best trespassed at the site for a period of approximately two weeks. Their illegal occupation could not have gained such degree of permanence as to qualify as a "home" for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998.

[10]      Furthermore, the applicants were evicted in terms of an existing court order and not in terms of a process that still had to be instituted in terms of the said Act. It also appears that the applicable court order was intended to also apply and be effective in future. It specifically provides that the "occupiers" of the property concerned may not prevent the Sheriff from carrying out their duties "in preventing illegal occupation of the site" and that "any individuals trespassing at the site" may be evicted by the Sheriff. Finally, the Sheriff was also authorised to "evict all occupants at the site who do not have the consent of the Trust to occupy".

[11]      I am therefore satisfied that the applicants were not spoliated and that they were evicted in terms of an existing court order. Furthermore, no particulars have been given by the applicants regarding the bald statement about children, women, the elderly and disabled persons. The applicants were best suited to provide this information but have failed to do so. Having regard to all the facts and circumstances referred to above, I am also not convinced that an order for the suspension of the eviction should be granted. In the result the application cannot succeed.

 

ORDER

 

1.         The application is dismissed with costs.

 

 

 

D S FOURIE

JUDGE OF THE HIGH COURT

PRETORIA

 

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