IN THE HIGH COURT OF SOUTH AFRICA NORTH WEST PROVINCIAL DIVISION, MAHIKENG CASE NO: M 216/15 In the matter between: SANNIEGRAAN CC APPLICANT and THE UNLAWFUL OCCUPIERS OF PORTION 50 (A PORTION OF PORTION 24) OF THE FARM KORANNAFONTEIN 350, REGISTRATION DIVISION I.O NORTH WEST PROVINCE 1ST RESPONDENT TSWAING LOCAL MUNICIPALITY 2ND RESPONDENT JUDGMENT 1 Landman J: Introduction [1] On 20 July 2015 I granted the following order in this application: ‘1. THAT: An order for the eviction of the First Respondent being the persons on whom service of the notice of proceedings and the application for an eviction order has been effected including Itumeleng Molutsi, Lebo Nxoxa, Monti Motsunonyane and Thabiso Botlhoko from Portion 50 (a portion of Portion 24) of the farm Korannafontein 350, Registration Division I. O., North West (“Portion 50 of the farm Korannafontein”) and for the demolition and removal of all buildings and structures that were occupied by the First Respondent and others occupiers on Portion 50 of the farm Korrannafontein be and is hereby granted. Such structures if not removed by the occupiers shall be removed by the Sheriff of this Honourable Court (“The Sheriff”) and left at the Ottosdal Municipal office for collection by those of the First Respondents or by such persons who have been affected by this order. 2. THAT: It is hereby directed that service of the aforesaid order is to be effected by the Sheriff on the First and Second Respondents in accordance 2 with the Rules of this Honourable Court (“the Rules”) and in addition thereto by affixing copies thereof to at least four notice boards to be erected by the Applicant on Portion 50 of the farm Korannafontein for that purpose. 3. THAT: It is hereby directed that the First Respondent and the four persons referred to in paragraph 1 (supra) have to vacate Portion 50 of the farm Korannanfontein within (14) days of the date on which service of the said order has been effected on the First Respondent. It is noted that the persons listed in paragraph 1 are present in court and therefore do not require service of this order. 4 THAT: It is hereby directed that the Applicant is entitled to cause the Sheriff to carry the order out within seven (7) days after the date of the expiry of the period referred to in paragraph (3) if the First Respondent and the four aforementioned persons have not vacated Portion 50 of the Farm Korannafontein by that date. 5 THAT: The Sheriff be and is hereby authorized to request the South African Police Service at Ottosdal to assist him with the carrying out of the order and the South African Police Service at Ottosdal shall render such assistance. 6 THAT: The First Respondent and the said four persons are directed to pay the costs of this application including the costs of Friday, 19 June 2015 3 as well as costs incurred by the Applicant in respect of the demolition, removal of the buildings and structures occupied by the First Respondent and the four persons on Portion 50 of the farm Korannafontein.’ Amendment of order [2] The order granted omits to state that it is to be pending the final adjudication of the application in accordance with section 5 of the prevention of the Illegal Eviction and Unknown Lawful Occupation of Land Act 19 of 1998 (PIE) and secondly that costs are reserved. These are the reasons for making the order as amended. The facts [3] Sanniegraan CC, the applicant, is the lawful owner of a piece of land known as portion 50 (a portion of portion 24) of the farm called Korranafontein 350, Registration Division IO, North West province measuring 68, 4996 hectare held by deed of transfer T79784/2014. I shall refer to this land as the property. [4] The occupiers of the property are referred as the ‘first respondents’. [5] The property is situated adjacent to the south western part of the Township of Letsopa, Ottosdal, North West. The property is zoned for agricultural purposes and consists of four portions of vacant land which is divided by the road 4 between Ottosdal and Delareyville and the road between Ottosdal and Sannieshof. [6] Mr Jardim, the sole member of the applicant, says that on Saturday, 13 June 2015, he was advised by Cllr Sam Letlankane that a number of unknown persons were busy setting out stands on the property. Shortly after receiving this communication Cllr Heneck arrived at Mr Jardim’s residence and advised him that ‘the secretary of the North West’, Mr M Legoete has indicated that he would have to take the necessary steps to stop what was taking place on the property. [7] Mr Jardim went to the property and noticed a number of motor vehicles there as well as a group of unknown persons who were busy setting out stands by the insertion of wooden poles or pegs in the soil on the two portions of the property which lie directly adjacent to the Township. [8] Mr Jardim also met Warrant Officer Kitty of the South African Police Service at the property. The Warrant Officer asked him whether he had any knowledge of what was going on. Mr Jardim informed him that he had no knowledge of this and he had not granted anyone permission to set out stands on the property. [9] On the same day at approximately 11:00, Mr Jardim received a short service message from Cllr Heneck confirming his earlier communication and informing him that the exercise was not sanctioned by the Municipality. 5 [10] Mr Jardim, with the assistance of his attorney, laid a complaint of trespassing with the South African Police Service at Ottosdal under CAS 77/6/2015. [11] Shortly after laying the complaint, Mr Jardim received a call from the administrator of the Tswaing Local Municipal, Mr Kingsley Sefularo, who advised him that the Municipality distanced itself from what was transpiring at the property and that it had no intention of becoming involved in the matter. [12] On the following day, Warrant Officer Kitty informed Mr Jardim that the South African Police Service could not take any steps in respect of the complaint without a court order directing them to do so. [13] On Wednesday, 17 June 2015, Mr Jardim took photographs of the property that show that two shacks or structures had been erected on the property. Mr Jardim also found a number of persons busy clearing the stands. [14] On the same day the applicant’s attorney wrote to the municipal manager and the councilors referred to above, informing them that the property was illegally occupied by unknown persons and that the second applicant was aware 6 of this conduct. The second applicant was requested to furnish certain information, namely: ‘1. Does the Tswaing Local Municipality approve the acts of the people to occupy the land? 2. Our client says that spikes and pens have been sunk to mark stands on the property. Is the Tswaing Local Municipality involved in the marketing or marking of the stands? Were any officials and employees or councillors of Tswaing Local Municipality involved in these acts and the marking or layout of the stands? 3. Was any record kept of the people to whom the stands were given? If so, we request a copy of the list of people to whom the stands were given. 4. Was anybody paid for the stands? Our client requires that the Tswaing Local Municipality should take action to stop the illegal behaviour and conduct. Our client requires the Tswaing Local Municipality to protect the rights of the owner of the property.’ No reply was received to this letter. 7 Order in terms of section 5 of PIE [15] The applicant launched an urgent application in terms of section 5 of PIE. [16] The first respondents were represented by Mr Skibi of the Mafikeng Justice Centre. The application was postponed to 20 July 2015 and the respondents were put on terms to file an answering affidavit. [17] My brother Hendricks J issued an order in the following terms: ‘1 The forms and service provided for in the Rules of this Honourable Court be dispensed with and the matter be heard on an urgent basis. 2. The notice of proceedings as contemplated in section 5(2) and (3) of the Prevention of Illegal and Unlawful Occupation of Land Act, number 19 of 1998 (PIE) attached hereto as Annexure A is authorised. 3. Service of the aforesaid notice and this application has to be effected by the Sheriff of this Honourable Court (“the Sheriff”) on the first and second respondent in accordance with the rules of this Honourable Court and, in addition, thereto by 8 affixing copies thereof to at least four notice boards to be erected by the applicant on portion 50 (a portion of portion 24) of the farm called Korranafontein 350, Registration Division IO, North West province for that purpose.’ Service of annexure “A” and application for eviction [18] The returns of the Sheriff show that annexure “A” and the application were served on 21 July 2015 on the second respondent and affixed to four notice boards on the property and served on the persons whose names are set out on Annexure “B” to this judgment. Application for postponement and withdrawal of Justice Centre [19] On 20 July 2015 the application served before me. Ms Ntshole of the Mafikeng Justice Centre appeared for the first respondents, although the Justice Centre had withdrawn as attorneys of record by notice delivered on 13 July 2015. She informed me that the first respondents’ request for legal aid had been refused on 12 July and she requested that the application be postponed so that they could lodge an appeal against the refusal of legal aid with the regional head office of the Legal Aid Board in Bloemfontein.