Tedstone Flats CC and Others v Maple View Investments (Pty) Ltd and Others (LCC209/2021) [2023] ZALCC 7 (16 March 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Land Claims Court South Africa: Land Claims Court You are here: SAFLII >> Databases >> South Africa: Land Claims Court >> 2023 >> [2023] ZALCC 7 | Noteup | LawCite sino index ## Tedstone Flats CC and Others v Maple View Investments (Pty) Ltd and Others (LCC209/2021) [2023] ZALCC 7 (16 March 2023) Tedstone Flats CC and Others v Maple View Investments (Pty) Ltd and Others (LCC209/2021) [2023] ZALCC 7 (16 March 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2023_7.html sino date 16 March 2023 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy RELOCATION OF OCCUPIERS AND CONSULTATION LAND TENURE – Relocation – Consultation – Receiving community alleging lack of effective engagement – Complaining of crime, decline in value of properties, lack of infrastructure and damage to environment – Just administrative action – Relocation stayed pending review of decision to relocate occupiers to chosen site. REPUBLIC OF SOUTH AFRICA IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG CASE NO: LCC 209/2021 (1)     REPORTABLE: YES /NO (2)     OF INTEREST TO OTHER JUDGES: YES /NO (3)     REVISED: YES /NO DATE: 16 March 2023 In the matter between: TEDSTONE FLATS CC AND 9 OTHERS First Applicant (REGISTRATION NUMBER: 1986/004815/23) and MAPLE VIEW INVESTMENTS (PTY) LTD First Respondent HEAD OF THE GAUTENG PROVINCIAL Second Respondent OFFICE OF THE DEPARTMENT OF RURAL DEVELOPMENT AND LAND REFORM CITY OF EKURHULENI METROPOLITAN Third Respondent MUNICIPALITY JOSEPH MOJELA AND 126 OTHERS Fourth Respondent JUDGMENT NCUBE J Introduction [1]     This is an interim urgent application. The applicants seek relief in the following terms: - “ 1. Condoning the applicants’ non-compliance with the ordinary rules pertaining to service and filling and time lines for delivery of documents and that this application be heard as a matter of urgency; 2.    The relocation of the Fourth to One Hundred and Twenty Seventh Respondents (“the evictees”) to Erf [....] Tedstoneville, Germiston, by the third respondent in terms of the Court Order dated 05 March 2020 issued by the Honorable Justice Ncube and the Directives dated 23 September 2021 issued in terms of Rule 37 of the Land Claims Court Rules be stayed and the third respondent be interdicted against carrying out the said relocation pending the finalization of the applicants’ application to Review the Third Respondent’s decision to relocate the evictees to Erf [....] Tedstoneville, Germiston (“the Tedstoneville Land”); 3. The third respondent is ordered to immediately cease with and desist from all works to prepare the Tedstoneville Land for occupation pending the finalisation of the applicants’ application to Review the Third Respondents’ decision to relocate the evictees to Erf [....] Tedstoneville, Germiston (“the Tedstoneville Land”); 4. The Applicants are directed to lodge their review application mentioned in prayer 3 above within 35 (Thirty-five) calendar days of the date of the granting of these orders failing which the stay granted in terms hereof is lifted; 5. The third respondent is ordered to deliver to the applicants’ attorney a comprehensive and complete report detailing the extent of the community engagement conducted with all persons in Tedstoneville area within 14 (Fourteen) days of the date of this order; 6.    The third respondent is ordered to furnish to the applicants’ attorney a full report within 14 (Fourteen) days of the date of the grant of this order in which it details its long term plans, including budget, for the housing of the Fourth-One Hundred and Twenty Seventh respondents, in view of the fact that the third respondent has stated on record that the relocation of the evictees to the Tedstoneville Land is only temporary; 7. The third respondent is ordered to file at court and deliver to the applicants’ attorney within 14 (Fourteen) days hereof a comprehensive statement detailing the income levels of the Fourth-One Hundred and Twenty Seventh respondents; 8. The third respondent is ordered to file and deliver to the applicants’ attorney within 14 (Fourteen) days of the date of this order, comprehensive information relating to the costs per shack to be built and serviced by the third respondent on the Tedstoneville Land; 9.    The costs of this urgent application shall be reserved for determination at the outcome of the applicants’ Review application, alternatively the costs of this urgent application be paid by only those respondents who oppose the relief sought in this Notice of Motion jointly and severally, the one paying the others to be absolved; and 10. Further/alternative relief.” The first and third respondents oppose this application. Background Facts [2]     The fourth to twenty seventh respondents (“occupier respondents”) reside at 114 EP Malan Road, Pamona Agriculture, Holdings, Kempton Park (“the property”). The property is owned by the, First Respondent herein. Most of the occupier respondents arrived at the property in 1999. They found a house and outside buildings. The property was vacant. The occupier respondents built shacks for the occupation by their families on the property. The property is 2,022 hectares in extent. [3]     The first respondent purchased the property in 2001. There were four buildings on it. The property was to be used for commercial purposes. Mr Neville Bester (“Mr Bester”) is the sole shareholder and director of the First respondent. Mr Bester, also owns other two properties situated at 304 and 305 Miradel Street, Pamona, Kempton Park (“Miradel Street property”). Mr Bester purchased the Miradel Street Property in 2001 through a Close Corporation known as Miradel Street Investments CC. [4]     When Mr Bester purchased the Miradel Street Property, the main house and outside building were leased out to certain individuals and he decided to continue with those lease agreements. 304 was rented to Mr Mahlangu and 305 was rented to Mr Slepe. Mr Mahlangu and Mr Slepe in turn, sub-let the rooms to other people. In October 2006, Mr Bester terminated the lease agreements with Mr Mahlangu and Mr Slepe who in turn had to terminate the sub-lease agreements with their sub-tenants. Mr Bester involved the Department of Land Affairs, (“the Department”), so that the Department could find alternative accommodation for the occupiers. [5]     As no alternative accommodation was secured for the occupiers, Mr Bester offered his Malan Road property to the occupier respondents as alternative accommodation. He signed lease agreements in terms of which the occupier respondents were going to stay on that property free of charge for a period of twelve (12) months, to be extended for another six (6) months by agreement between the parties. The occupier respondents then relocated to the property in terms of that lease agreement on 01 March 2007. When the period of twelve months expired, the occupier respondents did not vacate the property. There was no agreement to extend the lease for another six (6) months. [6]     Following upon the refusal of the occupier respondents to vacate the property, the first respondent moved an eviction application at the South Gauteng High Court. That application was in terms of the Prevention of Illegal Eviction from, and Unlawful occupation of Land Act, Act 19 of 1998 (“PIE”). The application was dismissed on the basis that ESTA and not PIE was applicable. On 01 March 2016, Mr Bester took an aerial photograph of the property which showed that there were about twenty (20) informal units on the property. [7]     On 21 January 2015 and again on 13 May 2016, Mr Bester’s Attorneys wrote to the occupier respondents advising them of the termination of their right to reside on the property. Despite the termination of the right to reside, the occupier respondents did not vacate the property. On 25 July 2010, Mr Bester issued a Notice of Motion evicting the occupier respondents from the property. The Notice of Motion, was filed with the Land Claims Court on 30 January 2020. [8]     The eviction application was set down for hearing by this court before (Ncube AJ), as he then was, on 05 March 2020.     On 05 March 2020, the parties’ Legal Representatives appeared before court. Adv G. Nel SC, instructed by Pearson Attorneys appeared on behalf of the applicants. Lindiwe Ndlovu of Marivate Attorneys, appeared on behalf of the occupier respondents. On that day, this court granted an eviction order. The order was by consent between the parties and it was drafted by the parties’ Legal Representatives. The eviction order was to be executed by the Sheriff on the 31 July 2020. The 30 th Respondent being the Ekurhuleni Metropolitan Municipality was, in terms of paragraph 5 of the eviction order, ordered to identify and procure alternation accommodation by no later than 31 July 2020 and relocate the occupier respondents to that alternative accommodation. [9]     In terms of paragraph 6 of the eviction order, in case the 30 th respondent failed to procure alternative accommodation for the occupier respondents by the 31 st of July 2020, it had to find temporary emergency accommodation for the occupier respondents until such time as permanent alternative accommodation could be secured. In addition, the Municipality was ordered to file a report indicating what steps have been taken to find alternative accommodation for the occupier respondents and the location and nature of that alternative accommodation. The Municipality was further ordered to file with the Registrar of this court by no later than 19 June 2020, a report setting out the relocation plans of the occupier respondents to the alternative accommodation so procured. [10]   On 16 October 2020, the First respondent issued a warrant of ejectment directing the sheriff to inform, evict, demolish and remove the occupier respondents together with their belongings. On 09 February 2021 the First respondent instructed the sheriff to deliver a message to the effect that the occupier respondents will be removed from the property on 23 February 2021 if they will be still in occupation of the property by then. All that happened despite the fact that the Municipality had not procured alternative or emergency accommodation for the occupier respondents. On 12 February 2021, the occupier respondents through Hendrick Mogatwe (“Mr Mogwate”) filed an application to suspend the operation of (“stay application”) the eviction order pending compliance with paragraph 5 of the said eviction order by the Municipality. [11]   On 15 February 2021, this court (Potterill J) considered the stay application on urgent basis and issued directives and she, at the same time issued interim interdict to be operative till 02 March 2021. In the stay application, the municipality was cited as the third respondent. In its answering affidavit, the Municipality asked that it be given until 31 December 2021 to find alternative accommodation for the occupier respondents. On 26 February 2021 this court adjourned the stay application sine die on the basis that the parties accepted the relocation plan. The Municipality took a decision to relocate the occupier respondents to Tedstoneville. Certain meetings were held with the councillor and other members of the Tedstoneville community. The applicants herein deny involvement in those meetings hence they oppose the relocation of the occupier respondents to Tedstoneville, at least until the site is properly serviced and proper infrastructure is put in place. Issues [12]   The papers may seem voluminous, but the fact remains, this is a simple application for an interim interdict pending review of the decision of the Municipality to relocate the occupier respondents to Tedstoneville land. Therefore, in the adjudication of this matter, this court must only determine if the applicants have made out a case for the granting of an interim interdict. In other words, this court must determine if the applicants satisfy the requirements of an interim interdict. [13]   The main objection to the relocation of the occupier respondents is that there was no sufficient consultation with the receiving community. The other objection is rise in crime and decline in the value of surrounding houses coupled with absence of proper infrastructure at the identified land. Applicants also complain about the damage to the environment at the identified site. Requirements for the Interim Interdict [14]   The requirements for the granting of an interim interdict are well known. They are: - a) a prima facie right, even if open to some doubt, b) the reasonable apprehension of harm, c) the balance of convenience, and d) no other satisfactory remedy. [15]   On the first requirement the applicants contend that there is tension between the community, which tension is proved by the fact that the community of Tedstoneville protested against the contractors when the contractors came to layout the ground work. There are already two informal settlements in the neighbourhood, and there is tension between those informal settlements. The applicants further complain of an increase in the crime rate since the arrival of two informal settlements in the area. Applicants contend also that they have a prima facie right to a just, fair and reasonable administrative action. [16]   On the reasonable apprehension of harm, applicants contend that there is a probability that the occupier respondents will remain at Tedstoneville permanently without the municipality relocating them to their permanent place. However, it is not clear what irreparable harm the applicants will suffer should this happen; except that the area may remain with portaloos, water delivery and rubbish skips. This appears to be harm to the environment, not to the applicants. [17]   In so far as the balance of convenience is concerned, the balance of convenience is in their favour, they say, as they will be prepared to assist the municipality to find the place where the occupiers will be permanently relocated to. Applicants contend that once the relocation has occurred, there will be no viable alternative remedy for them. Discussion [18]   This case is a perfect example of the painful plight of the majority of people of South Africa who happen to be black. Everyone has a constitutional right to housing [1] but the majority of our people are still landless, after twenty-nine (29) years into democracy. Despite lack of housing for the majority of people of South Africa, the applicants see it fit to seek interdict to protect the values of their surrounding properties. They also complain about the rate of crime in the area should the occupier respondents be relocated to Tedstoneville. However, there is no tangible evidence that crime is caused by landless people. There is crime everywhere in South Africa and there is no proof that it is caused by people staying in informal settlements. [19]   It should be noted that the piece of land identified is the municipal land which is already zoned residential. The relocation to Tedstoneville Erf [....] is only a temporary measure whilst the municipality is still looking for a permanent place to relocate the occupiers to. However, in terms of the court order, the relocation was to be done in accordance with a properly drawn up plan of action. If there is no properly drawn up plan, the municipality must be given sufficient time to do so. [20]   The applicants have made a strong case with regard to lack of effective engagement and a constitutional right to just administrative action. Meaningful engagement is required for the performance of a just administrative act. [2] Not only the residents of Tedstoneville were to be consulted but the occupier respondents also had to be consulted with regard to the site they were going to be relocated to. In Grootboom [3] the Constitutional Court held: “ All levels of government must ensure that the housing program is reasonably and appropriately implemented in the light of all the provisions in the Constitution. All implementation mechanisms and all state action in relation to housing falls to be assessed against the requirements of section 26 of the Constitution. Every step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing.” The Municipality contends that there was engagement with the community and councillors. It is not in dispute that there was some engagement but it was not a meaningful and effective engagement. [21]  The most disturbing feature of this case, is the unwillingness of the receiving community to accept the occupier respondents. There has been protests and petition has been presented to the authorities. Members of the community have prevented the contractors form working on the site. This might be an indication that there was no meaningful engagement with all stakeholders before the decision was taken to identify Erf [....] Tedstoneville as the suitable relocation site. I am mindful of the fact that the applicants herein also complain about non-compliance of the municipality with legislation. [4] Although the municipality contends that it was granted exemption from the provisions of NBRBS Act, all these are issues which can be properly ventilated in the review proceedings. [22]   On the other side, one should not lose sight of the fact that the first respondent has a constitutional right to his property. [5] As Adv Strydom, counsel for the first respondent submitted, the first respondent has suffered prejudice for many years as it cannot use its property due to illegal occupation thereof by the occupier respondents. The first respondent cannot even sell its property as prospective buyers require vacua possessio . For those reasons, it will be required of the applicants to hasten their review process. Costs [23]   Adv Mitchell, counsel for the applicants, submitted that this is the proper case where the court, because of the conduct of the Municipality, should award costs to be paid jointly and severally by the first and third respondents. Adv Ram SC, counsel for the third respondent, is of the view that the application should be dismissed with a proper order as to costs. Adv Strydom, counsel for the first respondent, asked the court to award costs in case the application is dismissed but reserve them if it is granted. The practice of this court is not to award costs unless there are exceptional circumstances to justify an award of costs. In the present case, there are no such exceptional circumstances. I agree with Adv Strydom that costs should be reserved. Order [24]   In the circumstances, I am making the following order: 1. The application is hereby granted. 2. Non-compliance with the ordinary rules pertaining to service and filing and timelines for delivery of documents is condoned. 3. The relocation of the Fourth to One Hundred and Twenty Seventh respondents (“the evictees’) to Erf [....] Tedstoneville, Germiston, by the third respondent in terms of court order dated 5 March 2020 issued by the Honourable Justice Ncube and the directive dated 23 September 2021 issued in terms of Rule 37 of the Land Claims Court Rules is stayed and the third respondent is interdicted against carrying out the said relocation pending the finalization of the applicants’ application to Review the third respondents’ decision to relocate the evictees to Erf [....] Tedstoneville, Germiston (“the Tedstoneville Land”); 4. The third respondent is ordered to immediately cease with and desist from all works to prepare the Tedstoneville Land for occupation pending the finalisation of the applicants’ application to Review the Third Respondents’ decision to relocate the evictees to Erf [....]Tedstoneville, Germiston (“the Tedstoneville Land”); 5. The Applicants are directed to lodge their review application mentioned in paragraph 3 above within 35 (Thirty-five) calendar days of the date of the granting of these orders failing which the stay granted in terms hereof is lifted; 6. The third respondent is ordered to deliver to the applicants’ attorney a comprehensive and complete report detailing the extent of the community engagement conducted with all persons in Tedstoneville area within 14 (Fourteen) days of the date of this order; 7. The third respondent is ordered to furnish to the applicants’ attorney a full report within 14 (Fourteen) days of the date of the grant of this order in which it details its long term plans, including budget, for the housing of the Fourth-One Hundred and Twenty Seventh respondents, in view of the fact that the third respondent has stated on record that the relocation of the evictees to the Tedstoneville Land is only temporary; 8. The third respondent is ordered to file at court and deliver to the applicants’ attorney within 14 (Fourteen) days hereof a comprehensive statement detailing the income levels of the Fourth-One Hundred and Twenty Seventh respondents; 9. The third respondent is ordered to file and deliver to the applicants’ attorney within 14 (Fourteen) days of the date of this order, comprehensive information relating to the costs per shack to be built and serviced by the third respondent on the Tedstoneville Land, and 10. The costs of this application are reserved for determination at the outcome of the applicants’ Review application. M T NCUBE Judge of the Land Claims Court of South Africa, Randburg Appearances For Applicants: Adv S Mitchel Adv T Paige-Green Instructed by: Schindlers Attorneys Melrose Arch Johannesburg For the First Respondent: Adv I Strydom Instructed by: Pearson Attorneys 315 Kent Avenue Randburg For the Third Respondent: Adv R Ram, SC Adv M Amojee Instructed by: Cerese Kruger-Troskie Inc Kempton Park [1] Section 26 of the Constitution, Act 108 of 1996 [2] Occupiers of 51 Oliva Road and Others v City of Johannesburg and Others [2008] ZACC 1 Para 9 handed down on 18 February 2008 [3] Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) [4] Spatial Planning and Land Use Management Act, Act 16 of 2013 (“SPLUMA”) and National Building Regulations and Building Standards Act, Act 103 of 1977 (“NBRBS”) [5] Section 25 of the Constitution, Act 108 of 1996 sino noindex make_database footer start