Bloemfontein | Tuesday
THE Supreme Court of Appeal has overturned a judgement ordering about 1 500 people off trust land north-west of Johannesburg, and reproached the judge who made the ruling.
By ordering the group’s eviction, Judge HCJ Flemming had directed the trustees to act in conflict with the Extension of Security of Tenure Act, Appeal Judge Fritz Brand said in a unanimous judgement on Monday.
”In my view, it goes without saying that a court cannot order someone to act in direct contravention of a statutory provision,” Brand said.
Flemming, Deputy Judge President of the Witwatersrand Local Division, in October 2000 upheld an application for the eviction of about 242 families from a 23 hectare piece of land known as Itsoseng.
The application was brought by property owners and representatives of property owners in the area.
The group moved onto Itsoseng on June 6, 2000 after receiving a donation by an unknown benefactor. A trust was created, of which the occupiers were named the beneficiaries.
Neighbours, however, complained that the land was being used contrary to the town-planning scheme – which only made provision for a single house on the property. They also protested that the new settlers were a ”nuisance” and that their arrival had been marked by an increase in crime in the area.
In their defence, the Itsoseng community relied on protective clauses in the Extension of Security of Tenure Act, but Flemming found the legislation was not applicable to the case.
He also expressed disapproval of the provisions of the Act and its underlying philosophy.
Brand found that the high court had had no jurisdiction to grant the eviction order.
All applications for eviction of occupiers had to be brought in terms of the provisions of the Act. He furthermore criticised comments by Flemming, among others that the Act permitted ”arbitrary depriving of property”.
”Judges must avoid creating the impression, particularly in dealing with a statute of a socially contentious nature, that they are using their judgements as an opportunity to give vent to their own dissatisfaction with a political decision or that they are insensitive to the existence of conflicting views or interests in the community that they serve,” Brand said.
”Nor must judges create the impression… that they have so aligned themselves with a particular point of view that they are not prepared to approach the interpretation of the statute dispassionately and with an open mind,” he said.
Flemming’s statements might have given ”the impression that he failed to approach the question regarding the applicability of (the Act) in an intellectually disciplined way and with an open mind.”
The appeal by the Itsoseng community was upheld with costs. – Sapa