|THE PARTIES |
The First Applicant, Crosspoint Property Investments (Pty) Ltd, was granted a tender by the Gauteng Department of Human Settlements to develop the broader area on which the Second Applicant’s properties are situated. The development is in terms of a project that intends to yield thousands of units of integrated housing and associated social facilities.
The Second Applicant, Cradle City (Pty) Ltd, is the owner of the two properties in question.
The Respondents are a group of people who currently reside in 28 informal houses on one of the Second Applicant’s properties (herein “Property 1”). There is a long history of litigation concerning the Respondents occupation of Property 1 and the ejectment of the Respondents from Property 1 and subsequent relocation to Property 2.
This case concerns the issue of competing jurisdictions of the High Court and the Land Claims Court in respect of applications for urgent interim eviction orders under section 5 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (“PIE”) and section 15 of the Extension of Security of Tenure Act 62, 1997 (“ESTA”).
After the granting of an eviction order by the High Court in 2008, the Respondents successfully obtained an order from the Land Claims Court restoring their occupation of the land. Thereafter, the Second Applicant applied for the Respondents eviction under ESTA in the Land Claims Court in 2010 (“the LCC eviction application”). To date, this matter has not been finalised. A similar application was again brought before the High Court in 2017 but was subsequently struck for lack of urgency. It seems, however, that the court did not consider the question of jurisdiction.
The Applicants have now collectively launched fresh proceedings, on the premise that the ejectment of the Respondents from Property 1 and relocation to Property 2 is urgently required for the development project to move forward. The Respondents oppose the relief sought.
The Applicants expressly relied on section 5 of PIE as the legal basis for their application. This section deals with urgent proceedings for evictions and permits a court to grant an interim eviction order pending the outcome of proceedings for a final order. Section 15 of ESTA has similar provisions to allow for urgent evictions and/or removals. Despite the Applicants’ reliance on section 5 of PIE as the foundation for their application, in their founding papers they record and/or acknowledge to the Respondent’s attorneys the applicability of ESTA.
This conflict between both PIE and ESTA in the founding papers raised a concern as to whether the High Court had jurisdiction to consider the application in the current circumstances. The Applicants contend that the High court has jurisdiction, while the Respondents say it does not.
While both PIE and ESTA regulate eviction proceedings, there exists important distinctions between them. Firstly, ESTA’s applicability is limited to land that is not in a proclaimed, established or approved township (rural land). PIE, however, applies to all land in South Africa regardless of whether it is township or non-township land. More significant is that under the definition of “occupier” in PIE, it expressly excludes an occupier in terms of ESTA. In furtherance thereof, under PIE, only the High Court and the Magistrate’s courts have powers to adjudicate on such cases while under ESTA, “court” is broadly defined to mean:-
“A competent court having jurisdiction in terms of this Act …”. To determine what a competent court is in the circumstances it requires a deeper look into the provisions of ESTA.
Sections 17-20 are the relevant provisions of ESTA which deal with “Dispute Resolution and Courts”. In terms of Section 17(1) it states that- “A party may, subject to the provisions of sections 19 and 20, institute proceedings in the Magistrate’s court or the Land Claims Court”. Under section 17(2), proceedings may be instituted in the High Court only “if all parties to the proceedings consent thereto”.
COUNSEL FOR APPLICANTS (PIE vs ESTA)
Counsel for the Applicants, on the question of jurisdiction, argued that ESTA did not apply as it only dealt with evictions and not relocations. The Applicants were not seeking to evict the Respondents per se, but rather wanted to relocate them to Property 2 as previously mentioned.
The learned judge, however, grappled with whether the High Court or the Land Claims Court had jurisdiction in the matter before him. He reintegrated that the Applicants did not seek a final order of eviction but rather interim relief pending an application for a final order which the judge contends section 15 of ESTA permits and/or makes provision for. The learned judge also dismissed the Applicants argument that ESTA does not apply to them and relied on the fact that the Applicants have a pending application for an eviction order against them in the Land Claims Court under ESTA and furthermore submitted its applicability in their founding papers. As such, the learned judge held that the Respondents are “occupiers” under ESTA which would preclude them under “occupiers” in terms of PIE. It follows from this that ESTA is the governing Act for the purposes of this application and not PIE.
ARGUMENTS SURROUNDING JURISDICTION
Counsel for the Applicants argued that if ESTA is applicable, as already identified, that this would not hinder the Applicants in anyway. Counsel submitted that, provided the facts set out in the founding affidavit met the requirements for relief under section 15 of ESTA, that the Applicants could proceed to seek relief under that section, and abandon their initial reliance on section 5 of PIE. The learned Judge, however, argued that this did not solve the jurisdictional problem as it would still have to be determined that the High Court had jurisdiction to consider an application brought under section 15 of ESTA.
In furtherance of this, Counsel’s argument was that the High Court had jurisdiction to consider all matters, unless precluded by statute. Meaning that the High Court must be found to have jurisdiction to consider any matter that does not fall within the exclusive jurisdiction of the Land Claims Court under ESTA. Counsel stated that the exclusive jurisdiction of the Land Claims Court is governed by section 20 of ESTA and by referring to subsections (1) and (2) contended that the effect of these two provisions together is that the Land Claims Court only has exclusive jurisdiction if either of the parties seeks to invoke the powers listed under subsections (1)(a) – (d). In other words, that it is only if a case concerns a constitutional decision in respect of ESTA; or the granting of interlocutory relief, a declaratory order or an interdict; or the review powers identified, that the Land Claims Court has exclusive jurisdiction. As the application for section 15 relief did not raise any of these powers, the Land Claims Court did not have exclusive jurisdiction, and thus the High Court retained what would be concurrent jurisdiction to consider the matter.
However, the learned Judge found difficulty with Counsel’s argument and the use of the Agrico judgment which they contended was direct authority governing the point raised. In the learned Judge’s view, the Agrico judgement is not authority for the submissions made. To begin with, unlike the facts in Agrico, the Applicants herein had already conceded that ESTA governs the legal position of the Respondents. So, they are for all purposes, “occupiers”, within the meaning of ESTA, and thus whatever Court function is invoked by an application to remove them from the land will need to be performed by a Court under ESTA.
Furthermore, it is not section 20 of ESTA alone that determines the exclusive jurisdiction of the Land Claims Court. The starting point as far as jurisdiction is concerned is found at section 17(1), which makes it clear that applications are to be made to the Magistrate’s Court and/or the Land Claims Court. This, of course, is subject to section 17(2) which requires the parties to consent to the jurisdiction of the High Court. It is so that section 17(1) is subject also to section 20. However, a proper reading of section 20(1) makes it clear that its intention is not to constrain the exclusive jurisdiction of the Land Claims Court but rather aimed at extending the Land Claims Court’s exclusive jurisdiction.
The only exception to this, as far as the High Court is concerned, is when the parties have agreed, under section 17(2), to extend the exclusive jurisdiction of the Land Claims Courts power to make ancillary orders under section 20 by consenting to the High Court’s jurisdiction. The obvious reason for this is that if the parties have consented to the High Court’s performance of functions under ESTA, then it follows that the High Court, and not ESTA, must exercise powers in respect of matters ancillary thereto. This was not agreed to in the present circumstances.
|It was subsequently held that, the Respondents can only be ordered by a court to leave Property 1 and relocate to Property 2 under ESTA. Accordingly, the Land Claims Court (alternatively, the Magistrate’s court) had exclusive jurisdiction over this application. This is further reinforced by there being no consent by the Respondents to the High Court’s jurisdiction as under s17(2), thus the High Court’s power to adjudicate the application had been excluded.|
The application was subsequently dismissed with costs.
This case illustrates that a legal practitioner should exercise due diligence before making application for an interim eviction order in the High Court, where it is found that such application would fall within the ambit of ESTA, in which case the Land Claims Court and Magistrates Court will have exclusive jurisdiction, unless expressly excluded by consent from parties to litigate in the High Court.
Written by Lauren Squier and Kyle Venter