Mkangeli and Others v Joubert and Others

242 appellants were informal settlers on property belonging to Fedsure Life Assurance Limited. On 6 June 2000, they relocated to a 23-hectare property called 'Itsoseng' with the express consent of the trustees of the Itsoseng Community Development Trust, who were the registered owners. The relocation was facilitated by a donation on condition they vacate the Fedsure property. The trust was formed specifically to hold Itsoseng on behalf of the appellants, who were nominated as beneficiaries. The respondents were neighbouring property owners who brought an urgent application for eviction, alleging violations of the town-planning scheme (which permitted only one dwelling per property) and nuisance caused by lack of sanitation, water, electricity, pollution, and alleged criminal activities by the approximately 1500 residents. The appellants admitted the town-planning violations and some nuisance but denied responsibility for criminal activities. The High Court (Flemming DJP) granted the eviction order, compelling the trustees to demolish structures and the appellants to vacate within one month.

• Whether the Extension of Security of Tenure Act 62 of 1997 (ESTA) applies where eviction of an 'occupier' is sought by someone other than the owner of the land
• Whether the appellants qualified as 'occupiers' under ESTA
• Whether the trustees qualified as 'owners' capable of giving consent for occupation
• Whether the High Court had jurisdiction to grant the eviction order given ESTA's exclusive jurisdiction provisions (sections 17, 19 and 20)
• Whether third parties (non-owners) seeking eviction of occupiers must comply with ESTA's provisions

The appeal was allowed with costs against the respondents jointly and severally. Paragraphs 2 to 6 of the High Court order were set aside and substituted with an order dismissing the application against the appellants (14th to 255th respondents). The costs order was adjusted to reflect that certain respondents (3rd to 9th) should pay the applicants' costs, while the applicants should pay the appellants' costs.

The binding principle is that sections 9(1) and 23(1) of the Extension of Security of Tenure Act 62 of 1997 must be given their literal and wide meaning: any person seeking to evict an 'occupier' as defined in ESTA, whether owner or non-owner, must do so in accordance with ESTA's provisions and through a court with jurisdiction under ESTA (magistrates' court or Land Claims Court, or High Court with consent). ESTA's comprehensive protection of occupiers against eviction applies universally to all eviction proceedings, not only to evictions sought by owners. Where a non-owner seeks eviction of occupiers, they must join the owner as a party and seek an order compelling the owner to withdraw consent and proceed under ESTA's requirements. The High Court lacks jurisdiction to grant eviction orders against occupiers under ESTA absent the consent of all parties.

The Court made several obiter observations: (1) The court a quo's finding that ESTA as a whole is unconstitutional was obiter and unnecessary, as no party raised constitutionality. The respondents disavowed reliance on this finding on appeal. (2) The court a quo's conclusion that the longstanding Deeds Office practice of registering trust property in the name of 'the trustees for the time being' has no legal validity was described as 'likely to rock the boat,' obiter, and prima facie wrong. Ownership of trust property depends on the trust instrument; according to the Itsoseng trust deed, the property vested in the trustees. Even if technically not owners, they were 'persons in charge' whose consent sufficed under ESTA. (3) The Court strongly criticized certain comments by Flemming DJP in the court a quo expressing disapproval of ESTA's philosophy and provisions, stating such comments created an impression the judge was not approaching interpretation dispassionately and with an open mind, and should have been avoided. While judges may comment on statutory unfairness, they must avoid appearing to use judgments to vent political dissatisfaction or appear insensitive to conflicting community interests.

This case establishes the fundamental principle that ESTA applies universally to all eviction proceedings involving 'occupiers' as defined in the Act, regardless of whether the eviction is sought by the owner or by third parties. It affirms that ESTA's protective provisions cannot be circumvented by having neighbors or other third parties bring eviction applications. The judgment reinforces ESTA's constitutional purpose of providing security of tenure to vulnerable occupiers in compliance with section 25(6) of the Constitution. It clarifies that non-owners seeking to evict occupiers must join the owner and proceed through ESTA's procedural requirements. The case also provides important guidance on judicial restraint, cautioning against judges using judgments to express political views or creating impressions of bias when interpreting socially contentious legislation.