Makanani and Others v Leeuloop and Others (LCC95/2022) [2022] ZALCC 41 (8 August 2022)

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 >> 2022 >> [2022] ZALCC 41 | Noteup | LawCite sino index ## Makanani and Others v Leeuloop and Others (LCC95/2022) [2022] ZALCC 41 (8 August 2022) Makanani and Others v Leeuloop and Others (LCC95/2022) [2022] ZALCC 41 (8 August 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2022_41.html sino date 8 August 2022 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 LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG Case Number: LCC 95/2022 Before: The Honourable Acting Judge President Meer Heard on:               4 August 2022 Delivered on:         8 August 2022 In the matter between: LEBESE LEAH MAKANANI First Applicant JOHANNA MASHIANE RAMODIMETJA Second Applicant CHRISTOFFEL ALWYN KRUGER Third Applicant and LEEULOOP BELEGGINGS (PTY) LTD First Respondent CITY OF TSHWANE METROPOLITAN MUNICIPALITY Second Respondent THE MAGISTRATE COURT CULLINAN PRETORIA EAST Third Respondent JUDGMENT MEER AJP Introduction [1]        The Applicants apply on an urgent basis for an order in terms of Section 14 of the Extension of Security of Tenure Act No 62 of 1997 (“ESTA”) for the restoration of their rights of residence on Portion [....] of the farm L[....] No [....] Gauteng Province (“the farm”) owned by the First Respondent. [2]        The First and Second Applicants resided on the farm from 2008 until 22 May 2022 when they were evicted pursuant to an order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) in the Cullinan Magistrates Court.  They currently reside on Portion [....] of the farm which is owned by the Third Applicant. The Second Respondent is the relevant Municipality. The Third Respondent has been cited as the Magistrates Court instead of as the Magistrate who granted the order [3]        It is common cause that the First and Second Applicants have been residing on the First Respondent’s farm since 2008 and did so with the consent of the First Respondent until 2018 when the First Respondent terminated their residence. He did so pursuant to the cancellation of an agreement with the Third Applicant to the effect that the First and Second Applicants could reside on the First Respondent’s farm for the duration of construction works of an intended development of the properties of the First Respondent and Third Applicant. [4]        The collapse of agreements between the First Respondent and Third Applicant gave rise to litigation in the Gauteng High Court in November 2021. The subject matter of such litigation involved the determination of their rights pursuant to two agreements between them. The judgment of the High Court at paragraph 22 made clear that the proceedings were not eviction proceedings. Paragraph 3 of the order of the High Court however declared with reference to the First and Second Applicants before me, (as fourth and fifth defendants) that they were in unlawful occupation on the First Respondent’s. [5]        On 11 February 2022 The First Respondent applied for the eviction of the First and Second Applicants under PIE. The eviction order was granted on 9 May 2022 in the Cullinan Magistrates Court, and on 24 June 2022 they were evicted by the Sheriff. The Founding affidavit of the First Applicant dated 1 July 2022 states that as of that date they were squatting on the Third Applicant’s farm for a week and that they would be homeless from 4 July 2022.  The urgent application was launched on 4 July 2022. Given that this was the date that the First and Second Applicants faced homelessness, the application clearly qualifies as one of urgency. The fact that an eviction order was granted in May does not detract from the urgency given the specter of homelessness. [ 6]       It is common cause that the farm is agricultural land. It thus is land to which ESTA applies. Section 2 (1) of ESTA states: “ 2. Application and implementation of Act (1) Subject to the provisions of section 4, this Act shall apply to all land other than land in a township established. approved, proclaimed or otherwise recognised as such in terms of any law. or encircled by such a township or townships. but including— (a) any land within such a township which has been designated for agricultural purposes in terms of any law; and (b) any land within such a township which has been established, approved, proclaimed or otherwise recognised after 4 February 1997, in respect only of a person who was an occupier immediately prior to such establishment. approval. proclamation or recognition.” [7]        It is common cause that the First and Second Applicants resided on the First Respondent’s property with  his consent  as occupiers between 2008 and 2018 and thereafter openly and with his knowledge as contemplated in Sections 3(4) and (5) [1] of ESTA until  their eviction in May 2022.  Their income eligibility as ESTA occupiers is not seriously challenged. The founding affidavit of the First Applicant states that his income is R1000 per month. This is confirmed by his employer, and in my view suffices as proof of income. Whilst the First Respondent  takes issue with the fact that no wage slip has been produced as proof of income, he does not allege that the First and / Second Applicants earn above the financial threshold of R13,625.00 per month specified in the  regulations [2] promulgated under ESTA, and  that they are thus not occupiers in terms of ESTA. [8]        In view of the above I am satisfied that the First and Second Applicants are occupiers in terms of ESTA, and as such their eviction ought to have been sought under ESTA and not PIE. The declaration of the High Court that they were unlawful occupiers has no bearing whatsoever on their status as persons to whom PIE applied and reliance on this by the First Respondent is misplaced. [9]        Section 14 (1) of ESTA states: “ 14. Restoration of residence and use of land and payment of damages. (1) A person who has been evicted contrary to the provisions of this Act may institute proceedings in a court for an order in terms of subsection (3).” Section 14 (3) of ESTA states: “ (3) In proceedings in terms of subsection (1) or (2) the court may, subject to the conditions that it may impose, make an order— (a) for the restoration of residence on and use of land by the person concerned, on such terms as it deems just; (b) for the repair, reconstruction or replacement of any building, structure, installation or thing that was peacefully occupied or used by the person immediately prior to his or her eviction, in so far as it was damaged, demolished or destroyed during or after such eviction; (c) for the restoration of any services to which the person had a right in terms of section 6; (d) for the payment of compensation contemplated in section 13; (e) for the payment of damages, including but not limited to damages for suffering or inconvenience caused by the eviction; and (f) for costs.” Mr Kruger for the First Respondent submitted that in order for me to find that the First and Second Applicants were evicted contrary to the provisions of ESTA as specified in Section(1) , I am required to first review the Magistrate’s decision. A plain reading of Section 14 does not convey this. There is nothing in Section 14 (1), as contended by Mr Tisani for the First and Second Applicants which precludes this Court from considering a section 14 restoration on the papers before me and the objective facts therein.  The facts make clear that the First and Second Applicants are ESTA occupiers who were evicted contrary to the provisions of ESTA and the protection of their rights. This being so, they are entitled to the restoration they seek. [10]      Finally, and lamentably it must be mentioned that the drafting of the Applicants’ papers were far from perfect, as evidenced inter alia by the incorrect citing of the Third Respondent, and the founding affidavit seeking an interdict not in sync with the notice of motion. My criticism is in no way directed at Mr Tisani who was not responsible for the drafting and who was briefed belatedly to argue the matter, which he did ably, notwithstanding the imperfections in the pleadings, about which he readily conceded. I express my dissatisfaction at those responsible for the poor drafting. [11]      In keeping with this Court’s practice not to grant orders as to costs except in exceptional circumstances of which I find there to be none, I intend making no costs order. [12]      In view of all of the above, I grant the following order: 1. The First and Second Applicants’ rights of residence on Portion [....] of the farm L[....] No [....] Gauteng Province are restored in terms of Section 14 of the Extension of Security of Tenure Act No 62 of 1997 . 2. There is no order as to costs. Y S MEER Acting Judge President Land Claims Court APPEARANCES For the Applicants: Adv. S. M Tisani Instructed by: Motimele Masete Incorporated For the First Respondent: Adv. J. Kruger Instructed by: Willem Coetzee Incorporated [1] “3. (4) For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved. (5) For the purposes of civil proceedings in terms of this Act, a person who has continuously and openly resided on land for a period of three years shall be deemed to have done so with the knowledge of the owner or person in charge.” [2] “Regulation 2 of the Regulations is hereby amended by the substitution for subregulation (1) of the following subregulation: "(1) The prescribed amount for the purposes of paragraph (c) of the definition of "occupier" in section 1 (1) of the Act shall be an income of R13, 625.00 per month." sino noindex make_database footer start