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[2018] ZAWCHC 143
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Mayekiso and Others v Patel NO and Others (3860/2016) [2018] ZAWCHC 143; [2019] 1 All SA 221 (WCC); 2019 (2) SA 522 (WCC) (24 October 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 3860/2016
In
the matter between:
LUBABALO
LINDILE
MAYEKISO
First
Appellant
NCEDIWE
AMELIA
MAYEKISO
Second
Appellant
and
MOHAMED
ISMAIL PATEL
N.O.
First
Respondent
HERMAN
BESTER
N.O.
Second
Respondent
TASNEEM
SHAIK MOHAMED
N.O.
Third
Respondent
DUANE
COLIN STARKEY
N.O.
Fourth
Respondent
NANDIPHA
VINQI
N.O.
Fifth
Respondent
Coram:
P.A.L.Gamble, P.B.Mantame and M.L.Sher, JJ
Date
of Hearing: 3 & 24 August, 13 September 2018
Date
of Judgment: 24 October 2018
JUDGMENT
DELIVERED ON WEDNESDAY 24 OCTOBER 2018
GAMBLE,
J:
INTRODUCTION
[1]
This appeal concerns the continued
occupancy of the immovable property known as Erf […],
Constantia in the City of Cape Town
(for convenience hereinafter
referred to as “
the property
”).
The property is sizeable: it measures 4400 sq. m in extent and
accommodates a main dwelling and garages covering some
822 sq. m as
well as other buildings measuring 335 sq. m. The street address is
[…], Constantia, being one of Cape Town’s
most exclusive
and sought-after suburbs.
[2]
On 23 September 2016 Dolamo J ordered the
eviction of the occupants (the appellants and those holding under
them) from the property
by 31 December 2016. After an application for
leave to appeal was dismissed by Dolamo J, the appellants
successfully applied to
the Supreme Court of Appeal which, on 1 June
2017, granted them leave to appeal to the Full Bench of this
Division. The appeal
was set down for hearing on Friday 3 August 2018
before the 2 senior members of this Bench together with Engers AJ.
The matter
could not proceed on that day as Engers AJ felt obliged to
recuse himself, having earlier dealt with an interlocutory
application
in the matter. Sher J was then appointed to replace
Engers AJ and the matter continued, firstly on 24 August 2018 when
the appellants
sought a last-minute postponement and then on 13
September 2018 when the matter was finally argued.
[3]
The respondents were represented in this
appeal by Advs. I. Bremridge S.C and L.Wilkin while the appellants
have successively been
represented by Advs.D.Claasen (3 August 2018),
L.Buikman S.C (24 August 2018) and D.Melunsky (13 September 2018).
BACKGROUND
TO THE HISTORY OF LITIGATION REGARDING THE PROPERTY
[4]
The property was purchased by the
appellants (Mr. and Ms. Mayekiso, who are married in community of
property) in March 2007 for
R19,95m. There is no record of the
registration then of any mortgage bond over the property and it must
be assumed it was paid
for in cash. According to a valuation report
placed before the court
a quo
,
the dwelling, a 3-level structure said to be designed in the “
Tuscan
style
”, comprises, inter alia, an
entrance hall, a formal lounge, a family room, a dining area,
kitchen, scullery, laundry, pantry,
study, guest toilet, 6 bedrooms
(each with its own
en suite
bathroom), a wine cellar, bar, cinema room, five garages, two
servants’ (
sic
)
quarters (each with its own shower, toilet and basin), a covered
outside braai area with large patio and terraces, a pergola with
deck, an assortment of balconies, three gas fire-places, alarm system
with beams and intercom system, underfloor heating and heated
towel
rails. In January 2015 the property was said to have a market value
of R18m and a “
forced sale
”
value of R13m. It is, by all accounts, a home with panoramic views of
the Constantia valley and mountains, attesting to
a lifestyle of
opulence.
[5]
From at least November 2011, Mr. Mayekiso,
who describes himself as a pastor and entrepreneur, appears to have
been in financial
difficulty and over the next three years or so he
became embroiled in protracted litigation in this Division to stave
off the inevitable:
the sale of the property. In January 2012 summary
judgment was granted against Mr. Mayekiso for some R800 000
based on a deed
of suretyship which he had signed and pursuant
thereto the Sheriff attached, first, movable property (including
luxury vehicles
and furniture). This lead to abortive litigation of
its own as Mr. Mayekiso sought unsuccessfully to interdict the
Sheriff from
doing his job.
[6]
After another abortive application (for
rescission of the summary judgment order), an initial application for
the sequestration
of Mr. and Ms. Mayekiso was launched in March 2013
by two creditors, Messers Heinemann and Priday. A provisional order,
which was
granted on 12 March 2013, was thereafter regularly extended
by agreement as the parties tried to reach a settlement. Such a
settlement
was eventually concluded on 7 August 2013 on the basis
that the debt of Heinemann and Priday be settled by Mr. Mayekiso on
agreed
terms, failing which the creditors would be entitled to sell
the property.
[7]
Payment in terms of the settlement did not
eventuate and on 11 November 2013 the property was attached under a
writ, with 17 February
2014 fixed as the date for the sale in
execution. On 12 February 2014 Mr. Mayekiso’s erstwhile
attorneys informed the creditors’
attorneys that the property
had recently been sold, that he would make payment of an amount of
R2,592m and asked that the sale
in execution therefore be stopped.
This request was refused and the sale went ahead as planned on 17
February 2014 with the property
fetching R8m on public auction.
[8]
This sale was thwarted by an urgent
application lodged on the same day by the family matriarch, Ms.
Thembeka Mayekiso, for the sequestration
of the parties’ joint
estate. Ms. Mayekiso senior did not prosecute her application to
finality but the sequestration application
was actively pursued
thereafter by Heinemann and Priday who were granted leave to
intervene on 27 February 2014. The provisional
order of sequestration
was made final just a month later, on 27 March 2014. And so, what
commenced as a friendly sequestration
application turned hostile
through the intervention application and has remained hostile ever
since.
[9]
Following upon the final order of
sequestration, the first to third respondents were appointed by the
Master as the joint trustees
in the insolvent estate of the
Mayekisos. In November 2016 the first respondent (“
Patel
”)
was removed from office by the Master (in circumstances which will be
described more fully later) and replaced by the fourth
and fifth
respondents. Except where it is necessary to refer to individuals, I
shall collectively refer to the respondents as “
the
trustees
”.
[10]
After their appointment the trustees went
about their duties as usual and subsequent to a second meeting of
creditors on 20 November
2014, were formally directed and authorised
by written resolution of such creditors ,
inter
alia
–
“…
to
dispose of any movable and immovable property of the estate including
any such further assets that may come to light, by public
auction,
private treaty or public tender upon such terms as he/they in
his/their discretion shall determine and to abandon any
such assets
for which he/they can find no purchaser or abandon them to a secured
creditor at the value placed thereon by such creditor
if such
creditor’s claims is/are secured by such assets.”
[11]
On 1 December 2014 the second respondent
wrote to Mr. Mayekiso on behalf of the trustees with proposals
regarding the disposal of
certain of the assets in the insolvent
estate. He informed Mr. Mayekiso that they were entertaining an offer
to purchase certain
of the movable assets. At the same time the
trustees made a without prejudice offer to Mr. Mayekiso in terms
whereof they indicated
that they were willing to accommodate him and
his family as tenants in the property on certain stipulated
conditions namely
–
“
1. that
the insolvents enter into a written lease agreement with the trustees
within seven days of payment of the arrear rentals
referred to
hereunder;
2. that the
trustees shall be entitled to demand vacant occupation of the
Constantia property upon one calendar month’s written
notice;
3. that the
arrear rentals referred to hereunder are paid within 14 days of the
date of this letter; and
4. that all
future rentals are promptly paid on before the 1st day of each month
commencing on 1 January 2015 for so long as the
insolvents remain in
occupation of the Constantia property.
The trustees are
of the opinion that rentals (sic) in respect of the Constantia
property of R 10 000-00 per month is (sic) fair
and market related.
Arrear rentals in respect of the 10 months calculated from the date
of provisional sequestration i.e. 27
February 2014, to 30 December
2014, amounts (sic) to R100 000.”
[12]
The papers do not reflect what became of
this discussion but it is clear in the light of subsequent
developments that Mr. Mayekiso
was not interested in paying any
rental to the trustees to continue occupying the property. Be that as
it may, on the strength
of the valuation referred to above, the
trustees set about offering the property for sale on public auction
through a reputable
agency (Claremart Auctioneers) who fixed Monday,
28 September 2015 as the date for the sale of the property.
THE
URGENT APPLICATION BEFORE DONEN AJ
[13]
The auction could not however proceed on
the designated day because Mr. Mayekiso launched yet another urgent
application (once again
on the very morning of the sale) this time
seeking to permanently interdict any prospective sale of the
property. That application
was heard on 22 October 2015 by Donen AJ
who subsequently dismissed it on 30 November 2015. It is necessary to
briefly deal with
certain aspects of that application because they
were raised yet again on appeal by Mr. Melunsky.
[14]
In resisting the sale of the property by
public auction, Mr. Mayekiso told the court that he was attempting to
save the family home
at all costs contending that the value of the
property far exceeded the amount then due to creditors.
Notwithstanding the January
2015 valuation, it was said that the
property was worth R19,95m (fortuitously the purchase price of the
property some seven years
earlier) while the value of creditors’
claims was said to be of the order of R9,5m. But, said Mr. Mayekiso,
a number of the
claims which had been proved against the insolvent
estate had been lodged by family and friends and these persons could
be prevailed
upon to waive their claims amounting to some R5,35m.
[15]
Contending that the proven claims would be
reduced by such waivers to R4,165m, Mr. Mayekiso then alluded to the
intercession of
a benefactor - the proverbial knight in shining
armour - in the form of one Shamus Fitzhenry. It was said that Mr.
Fitzhenry had
agreed to assist the family in order to save their home
by paying off the creditors on the revised list and registering a
bond
over the property to secure his debt. This was to be regarded as
a sale of the property and Mr. Mayekiso thus sought to intervene
in
the winding up of the estate by stopping any future attempt to sell
the property.
[16]
In a
detailed and considered judgment, Donen AJ found that the applicants
before him had failed to establish that they had the requisite
locus
standi
to intervene in the matter because they had not established any act
of irregularity or maladministration on the part of the trustees
in
relation to the insolvent estate.
[1]
The learned Acting Judge also agreed with the contention advanced on
behalf of the trustees that there was no proof of a valid
and binding
written offer put forward by Mr. Fitzhenry (who was not a party to
those proceedings) to purchase the property. Rather,
it was said that
there was a draft order of sorts with which Mr. Fitzhenry evidently
associated himself. In the result, the trustees
had contended that
there was no valid offer to purchase the property with which they
were required to deal.
[17]
In his conclusion the learned Acting Judge
held as follows -
“
[34] In
the circumstances the applicants have not established any
irregularity or maladministration on the part of the trustees.
The
applicants have no right to regulate the administration of the
insolvent estate in a (sic) way that they seek to do. No injury
to
their rights has been proved. It would appear that they may have at
least one other satisfactory remedy available to them. The
property
is vested in the trustees and their administration is regulated by
the [Insolvency] Act. They may proceed accordingly.
In all the
circumstances the application is dismissed. Costs will be costs in
the sequestration.”
THE
APPLICATION FOR EVICTION
[18]
After the dismissal of the application
before Donen AJ the trustees, no doubt spurred on by the ruling,
continued in their statutory
obligation to realise the assets in the
joint estate. They said that they had been informed by Claremart
Auctioneers that the sale
of the property was being severely hampered
by Mr. and Ms. Mayekiso who refused to allow interested parties (and
it was said that
there were a large number thereof) access to the
property for purposes of viewing same. They were also concerned about
the condition
of the property and the fact that certain necessary
repairs had not been effected thereto by the occupants. In the result
the trustees
resolved to approach the court for the eviction of the
appellants from the property and pursuant thereto on 3 March 2016
launched
the application which is the subject of this appeal.
[19]
Patel deposed to the founding affidavit in
the eviction application which concluded with the following
allegations.
“
[21] It
has now become a matter of some urgency that the applicants obtain
vacant occupation of the Constantia property. The property
is
deteriorating on a daily basis, the respondents are neither paying
nor tendering any consideration for their occupation of the
Constantia property, increasingly prospective buyers are being scared
off by the presence of the respondents and every single day
that goes
by the costs attendant upon the winding up of the estate of the
respondents increases. All of this is to the detriment
of the
creditors of the respondents’ estate.
[22] The
applicants are enjoined to wind up the estate of the respondents for
the benefit of the creditors of the respondents, and
indeed for the
benefit of the respondents themselves. The applicants simply cannot
do so while the respondents remain in occupation
of the Constantia
property. The respondents have no lawful right to be in occupation of
the Constantia property and it is according
(sic)
submitted that the applicants are entitled to
the relief prayed (sic) in the notice of motion.”
[20]
In
their opposition to the eviction application the appellants raised a
host of substantive defences as well as procedural points.
One of the
fundamental challenges to the application was said to be the fact
that the appellants remained the registered owners
of the property
and they accordingly asserted a residual right of interest therein.
In the circumstances they challenged the right
of the trustees to
deprive them of occupation of the property and indignantly objected
to being asked to pay rent for their home:
they asserted that their
right of ownership (at that stage no more than the bare
dominium
in
the property
[2]
)
entitled them to occupy it without offering any
quid
pro quo
for
their right of habitation. Further, they referred, once again, to the
Fitzhenry offer and contended that eviction was not warranted
in the
circumstances, the suggestion being that the “sale” of
the property to him would be the panacea to all of the
trustees’
problems.
[21]
The eviction application was eventually
heard by Dolamo J on 2 August 2016 and, as I have said, judgment was
delivered on 23 September
2016. It is a detailed and considered
judgment of some 21 pages. The learned Judge had regard to various
factors and dealt convincingly
with the argument that the appellants,
as the registered owners, were not in unlawful occupation of the
property as contemplated
by the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act, 19 of 1998 (“
PIE
”),
holding that their occupation was indeed unlawful. Since the
challenge to this point was not persisted with on appeal,
it is not
be necessary to deal with it further: Mr. Melunsky accepted
unequivocally that the appellants were illegal occupiers
and were to
be dealt with as such under PIE.
[22]
A further aspect which was challenged
before Dolamo J related to the
locus
standi
of the trustees to bring the
application. This too was not taken further by the appellants on
appeal and Mr. Melunsky correctly
conceded that the trustees were
entitled to approach the court
a quo
for
an eviction order. In the result, this issue need not be dealt with
either on appeal.
[23]
In light of these concessions the ambit of
the appeal was of a fairly narrow compass. Save for an attack on the
identity of the
first appellant and the potential consequences
thereof (a matter to which I shall revert later), the principal
attack by Mr. Melunsky
related to the application of the established
principles arising from a PIE application such as this. In essence,
the argument
was that the court
a quo
failed to have proper regard for the effect of an eviction order on
the parties’ minor children and, further, it failed to
consider
the prospect of the Mayekiso family being left homeless. The attack
on the identity of the first appellant was contingent
upon the
introduction of additional evidence not appearing from the record of
appeal.
THE
TRUSTEES’ APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL
[24]
Shortly before the matter was due to be
heard on Friday, 3 August 2018 the trustees made application to
adduce further evidence
on appeal. They did this on the basis of
certain developments which had materialised since the order of Dolamo
J and they sought
to place such facts before this court in an
endeavour to demonstrate that the appeal was essentially moot. When
the matter was
eventually argued on 13 September 2018 Mr. Melunsky
indicated that the appellants did not oppose the trustees’
application.
[25]
In the light of Mr.Melunsky’s
concession that the trustees’ application could be granted
there are two further factors
for this court to take into account.
Firstly, in the affidavit which he lodged in the application for
leave to appeal to the SCA,
Mr. Mayekiso dealt with the trustees’
concerns regarding the consequences of any future sale of the
property by assuring
that court that whilst he accepted that the
property would have to be sold in order to settle the creditors,
there would be no
risk that he and his wife would refuse to vacate
the property once it had been sold. In this regard he said the
following.
“
[49] In
addition, we also agree to vacate the property if and when it is sold
and registered into the name of a third party. We
are also willing to
agree to a Court order for this purpose. Thus, there can be no fears
by any purchasers that we shall fail to
vacate the immovable
property, if they were to purchase it.”
And,
in the replying affidavit, after the trustees had expressed certain
misgivings about the insolvents’ intentions, Mr.
Mayekiso made
it clear that he accepted that the property had to be disposed of by
the trustees.
“
[45]
Applicants are
not objecting
to the sale of the property. We accept that the property has to be
sold in order for creditors to be paid and for Applicants to
be paid
the balance of the equity, which will remain due to us….
”
[26]
The trustees point out that the property
was sold on 18 September 2017 for an amount of R13,2m and that
transfer thereof was passed
to a certain Dirk Shamil on 4 December
2017. In the circumstances they submitted that this fact, together
with Mr. Mayekisos unequivocal
undertaking to vacate the premises in
such circumstances, rendered the appeal moot.
[27]
Initially, in an affidavit pertaining to
the earlier postponement of the appeal, Mr. Mayekiso sought to
suggest that his undertaking
to the SCA to vacate was conditional
upon the property being sold for a reasonable price, the implication
being that R13,2m was
not reasonable although no express allegation
was made as to what was reasonable in the circumstances. The
condition, which was
not contained in the affidavit presented to the
SCA, was really just an opportunistic after-thought which was
untenable in the
circumstances and Mr. Melunsky did not seek to rely
thereon when he argued the appeal.
THE
APPELLANTS’ APPLICATION TO LEAD FURTHER EVIDENCE ON APPEAL
[28]
At about 15h30 on Wednesday 12 September
2018 (just some 18 hours before the appeal was finally to be heard)
Mr. Mayekiso lodged
yet another late application. This time he sought
to introduce further evidence on appeal relating to the conduct and
persona
of
the first respondent. As will be seen shortly, it was argued by Mr.
Melunsky that at all material times Patel was “
an
impostor
” masquerading under a
false name. This, said counsel, rendered the founding affidavit in
the eviction application fundamentally
flawed. Further, it was argued
that, had Dolamo J known of the true facts regarding the identity of
Patel, he would undoubtedly
have refused to entertain the application
until he knew what the real identity of the first respondent was.
[29]
This application was opposed by the
trustees. Mr. Bremridge SC noted that the late filing of the
application (which he complained
was a tactic regularly employed by
Mr. Mayekiso to the prejudice of his opponents) precluded the
trustees from dealing with the
substance thereof. That
notwithstanding, a short answering affidavit was put up by way of
provisional opposition with the right
reserved to deal more fully
with the substance of the allegations in due course, should the
necessity arise.
[30]
S19(b)
of the Superior Courts Act,10 of 2013 expressly sanctions the receipt
of further evidence on appeal but this is a power which
will be
sparingly exercised and only in special circumstances, bearing in
mind the overriding public interest in the finality of
litigation.
[3]
First principles in relation to an application to adduce further
evidence on appeal require Mr. Mayekiso to show -
·
that the application has been made
timeously;
·
why the evidence was not placed before the
court
a quo;
·
that the failure to adduce the evidence
earlier was not attributable to any remissness or negligence on his
part;
·
that there is a
prima
facie
likelihood in the truth thereof;
·
that the evidence is materially relevant to
the outcome of the matter; and
·
that the application is
bona
fide.
[31]
In the affidavit of 12 September 2018, Mr.
Mayekiso offers no explanation as to why the application was filed so
late. He notes
that the facts deposed to therein had been known to
him for quite some time but offers no explanation why the application
was not
filed sooner, at least sufficiently early to enable the court
and the trustees to have proper regard thereto. In fact, he has the
gumption to castigate the trustees (who, he says, knew about the
facts and the importance thereof) for failing to bring such facts
to
the attention of the court in circumstances where they were duty
bound to do so.
[32]
Mr. Melunsky informed the court that he
could make no submissions in regard to the failure by Mr. Mayekiso to
take timeous action
nor could he offer any reasonable explanation
suggesting why it was left until the proverbial 11
th
hour. In my view, the application therefore falls down at the first
hurdle and it must be assumed that at the very least Mr. Mayekiso
was
remiss in failing to act timeously. But that is not the end of the
matter.
[33]
It is
significant to note that not all of the facts which Mr. Mayekiso
sought to introduce through the s19(b) application existed
at the
time that Dolamo J was seized with the matter. The substance of the
affidavit refers to a rather intriguing situation which
has found its
way around this Division in a number of cases
[4]
in which allegations of fraud and theft on the part of the first
respondent abound. It is said by Mr. Mayekiso that the first
respondent is not “
Mohamed
Ismail Patel
”
but in fact “
Patel
Muhamed
”
– allegedly 2 different persons with differing identity
numbers. Whatever his correct names may be, the person who
fulfilled
the function of the first respondent was formerly an admitted
attorney of this court who was struck off the roll by Rogers
J
(Dolamo J fortuitously concurring) on 24 March 2017. The citation in
that matter is
Cape
Law Society v Patel Muhamed
[5]
.
[34]
The use by the first respondent of
different names is explained by Rogers J as follows.
“
[2] If
the respondent is to be believed, he has over the years, gone
variously under the names Patel Muhamed (the one used in the
above
citation), Mohamed Ismail and Muhamed Ismail Patel. He says the third
of these is his real name. Due to the racial distinctions
then
applicable, his father chose to register his family as Malay rather
than Indian. This was achieved inter alia by dropping
the name Patel
when the children were registered. The respondent’s first
registered name was Mohammed Ismail with ID number
44[…]
[6]
.
Years later he applied to correct his registration so as to read
Muhamed Ismail Patel but, through an administrative bungle, he
was
issued with an ID document in the name of Patel Muhamed and ID number
49 […]. During March 2013 he ascertained to his
astonishment
that according to the records of the Department of Home Affairs he
was deceased. He is still battling to regularise
his registration.
[3] It was under
the first of these names that the respondent applied for admission as
an attorney. He has, however, used the third
name (the one he says is
his true name) in proceedings in Gauteng.”
[35]
Rogers J further alluded to the fact that
the first respondent had, on 1 August 2016, been removed by the
Master as co-liquidator
of a company known as Crimson Moon Investment
32 CC on account of alleged misappropriation of monies in the course
of its winding-up.
Finally, His Lordship referred to the insolvency
of an entity known as The Coe Family Trust in which similar
allegations of the
misappropriation of funds were also levelled
against the first respondent.
[36]
In concluding that the striking off of the
first respondent was warranted, Rogers J held as follows.
“
[27]…It
is irrelevant that the greater part of these misappropriations were
committed by him as an insolvency practitioner
rather than a legal
practitioner. The courts expect attorneys to be scrupulously honest.
A person who steals money and behaves
fraudulently in whatever
capacity is not a person who can be allowed to remain on the roll of
attorneys.”
[37]
Earlier in the judgment Rogers J noted that
the first respondent had practiced as an attorney in Cape Town while
also taking appointments
as an insolvency practitioner from time to
time and pointed out that the Cape Law Society had interdicted him
from practicing as
an attorney on 19 February 2016. Immediately
thereafter (and on 16 March 2016) the Society launched an application
to remove Patel
from the roll of attorneys on account of his alleged
dishonesty. Hence, when the present matter served before Dolamo
J in
August 2016, those facts were in the public domain and it was
open to Mr. Mayekiso to place the file in the interdict application
before Dolamo J, and/or to draw to His Lordship’s attention
that the Master had concerns about the first respondent’s
suitability as a trustee in other insolvency proceedings.
[38]
In any event, in the affidavit of 12
September 2018 Mr. Mayekiso says that his knowledge about Patel
Muhamed is limited but that
the Master would be better informed in
that regard. He goes on to suggest, on the basis of media reports and
court judgments –
“
[27]…of
which I have been made aware that Patel Muhamed had been engaging in
an elaborate scheme in respect of many estates
over many years by
representing himself as Mohamel (sic) Ismail Patel, while at the same
time engaging in fraudulent activities
involving the misappropriation
of millions of rands from those estates.”
[39]
In an apparent leap in logic based on
hearsay, Mr. Mayekiso alleges that –
“
[29]
There is no reason to believe that Patel’s conduct in respect
of the appellant’s (sic) insolvent estate was not
part of the
same grand scheme. Indeed, the facts and circumstances indicate that
it was. The proceeds of the sale of moveables
(sic) (furniture) is
unaccounted for in our estate.”
[40]
After pointing out that Patel had deposed
to various affidavits in cases before this court in which he had
perjured himself in regard
to his identity, Mr. Mayekiso goes on to
assert that-
“
[31] All
of the foregoing information, I respectfully submit, would have been
highly relevant to the Honourable Mr. Justice Dolamo
when he was
required to consider the eviction application.”
And
then he suggests that the Learned Judge would have been entitled to
know that one of the trustees seeking to evict the appellants
from
property, which they had been duly authorized to dispose of by the
insolvents’ creditors, and which they controlled
in terms of
their statutory duties under the Insolvency Act
[7]
was allegedly –
·
a person who “
apparently
did not exist”
;
·
a person who masqueraded as the deponent to
the founding affidavit and was in fact “
an
impostor”
;
·
a “perjurer”
;
·
“
not fit to be a trustee”
;
·
one who had “
been
misappropriating funds from estates under
his control
”;
·
“
a person…engaged in an
elaborate scheme to steal money from estates under his control
;
and
·
“
abusing the court and insolvency
machinery for his own ends”
.
[41]
It goes without saying that if the hearsay
allegations made by Mr. Mayekiso are true and correct, the matter
certainly warrants
an investigation by the police but in my view that
per se
is
not a reason for invalidating decisions taken by the first respondent
and the remaining two trustees in the execution of their
statutory
functions. This is particularly so in circumstances where (i) it is
no longer in issue that the property has to be sold
to cover the
liabilities in the insolvent estate, and (ii), that the trustees have
the power (and duty) to do so.
[42]
It
will be seen that s76
[8]
of the Act expressly provides for the continuation of pending legal
proceedings in a situation such as the present. As a public
official
statutorily appointed by the Master a trustee such as Patel was
required to discharge his duties subject to the control
of the
Master. Those functions may in appropriate cases be subject to
judicial review and, importantly, where the Master considers
that a
person is no longer suitable to be a trustee in the estate concerned
she may remove him.
[9]
That is exactly what happened in this matter in November 2016.
[43]
The
logical conclusion flowing from the application of s76 is that the
removal from office of a trustee by the Master, does not
automatically invalidate decisions taken by a duly appointed trustee
when he was still in office. In my view, this accords with
the
so-called
de
facto
doctrine,
where steps taken pursuant to a valid appointment as trustee will
continue to be legally binding on the basis of the trustee’s
so-called ‘
colourable
authority’
[10]
,
provided of course that such decisions were otherwise duly taken in
accordance with the provisions of the Act.
[44]
Mr.
Melunsky’s complaint that Patel was an “
impostor”
might, at first blush, to be said to resonate with the facts which
applied in
Mkise
[11]
.
In
that matter a certain Sebastian Hendrik de Jager stole the identity
document of his housemate, Jacobus Willem Pienaar, in Keetmanshoop
(where both were employed as prosecutors) and applied for admission
in the erstwhile Orange Free State as an advocate under the
name of
the said Pienaar. He thereafter practiced at the Bar in Bloemfontein
under that name, representing several hapless accused
in criminal
matters in the process. He did the same in Pretoria.
[45]
When the subterfuge was discovered it
became the subject of an official commission of enquiry before which
de Jager confessed his
misconduct. The commissioner, who was directed
to establish whether any miscarriage of justice had occurred,
subsequently recommended
that the matter be referred to court and
pro
deo
counsel were appointed to represent
certain of the accused who de Jager had represented earlier, in an
appeal directly to the Appellate
Division. In that court various
special entries were noted on behalf of the accused.
[46]
In delivering the unanimous judgment of the
court of appeal, Kumleben AJA approached the matter on the basis of
assessing whether
any irregularity had occurred in any of the matters
and further considered whether any such irregularity was of “
so
fundamental and serious a nature that the proper administration of
justice and the dictates of public policy [required] it to
be
regarded as fatal to the proceedings in which it occurred.”
The court found that to do so it was necessary to “
examine
any statutory requirements for the admission of an advocate to
practice, the underlying reasons for such provisions and
the role an
advocate is called upon to fulfil in the administration of justice.”
[47]
After
a thorough consideration of the provisions of the Admission of
Advocates Act
[12]
and the relevant case law applicable thereto, the learned Acting
Judge of Appeal found that de Jager did not possess the requisite
authority to practice in terms of that Act and concluded that “
it
is in the public interest that the defence in a criminal trial be
undertaken by a person who has been admitted to practice as
an
advocate in terms of the Act and the lack of such authorisation must
be regarded as so fundamental an irregularity as to nullify
the
entire trial proceedings.”
The
various appeals were therefore upheld.
[48]
The
facts in the present matter differ in a number of material respects.
These are civil proceedings and there is therefore no room
for a
fundamental irregularity or miscarriage of justice such as that
considered by the Appellate Division. Then, there is the
fact that
the first respondent was removed from office by the Master
[13]
ostensibly on the basis that he was no longer (and not
ab
initio
)
a suitable person to hold that office as a trustee. Thirdly, the
continuation of proceedings commenced by a dismissed trustee
is
expressly sanctioned and validated by the Act.
[49]
In
para [125] of
Mgoqi
reference
is made to a
dictum
in
an Australian judgment
[14]
which is to the following effect.
“
The acts
of a
de facto
public officer done in apparent execution of his office cannot be
challenged on the ground that he has no title to the office.
It
matters not that his appointment to the office was defective or has
expired or in some cases even that he is a
usurper
.”
(Emphasis added)
I
accordingly conclude that there is no merit in the argument that the
use by the first respondent of different names in other proceedings
is something which would have warranted the dismissal of the
application to evict.
[50]
There is, moreover, an equally compelling
reason not to interfere in the order of Dolamo J on the basis of
potential lack of authority
on the part of the first respondent: the
fact that he did not act alone but was then assisted by two other
trustees whose competencies
and authority are not challenged. In the
short answering affidavit deposed to by the second respondent on 13
September 2018, Mr.
Bester points out that when the application for
eviction was instituted Patel was still a functioning trustee
together with the
second and third respondents. He notes too that
while Patel did most of the day-to-day work in administering the
insolvent estate
of the Mayekisos, at all material times his fellow
trustees were consulted and decisions were made jointly. This fact,
too, distinguishes
the situation from
Mkise.
[51]
In any event, the court
a
quo
was alerted to the possibility that
Patel’s conduct was suspect and not in accordance with
acceptable standards. In the answering
affidavit deposed to by Mr.
Mayekiso in opposition to the eviction application he complained
about the conduct of the trustees,
in particular Patel, accusing them
of incompetence, questionable practices, dereliction of duty and
advancement of self-interest.
“
6…..
I understand that he
[Patel]
has
either been struck from the roll of attorneys, alternatively such an
application is pending against him…
7. The removal
of first applicant from the roll of attorneys should also disqualify
him from acting as a liquidator and/or from
bringing an application
of the nature which this matter is, against myself and second
respondent….
10. I deny that
Applicants were duly appointed. At the time of deposing to this
affidavit, there is an application pending before
this Honourable
Court to have First and Second Applicants removed from office, due to
the improper appointment.…
17. Second
Respondent and I have long held the view that it is Applicants and
their legal representative’s intent to extract
as much value
from our insolvent estate as possible. This is unlawful. Our
insolvent estate has a large equity contained therein.
This
application is nothing but another attempt to waste out that equity
with unnecessary litigation, to the benefit of Applicants.
Clearly,
Applicants intend, whether they succeed with this application or not,
to extract the costs associated with this application,
from our joint
estate….
30.2.
The current problems have been brought about by Applicants refusing
to administer the insolvent estate for the benefit of
creditors and
ourselves as debtors, who are entitled to the balance of the equity.
30.3
In fact, their purpose is to waste out the assets of the insolvent
estate and to enrich themselves in the process as far as
possible.
They wish to leave as little as possible for the creditors and
ourselves as the ones entitled to the equity.”
[52]
And yet, despite serious allegations of
impropriety having been made by the insolvents against the trustees,
and the court having
been alerted thereto, Dolamo J was not persuaded
to refuse the application to evict. The reason therefor was obvious:
the liabilities
in the estate could only be settled through the sale
of the property and to achieve this speedily and efficiently (due
regard being
had to Mr. Mayekiso’s dilatory tactics in the
past) it was necessary to effect the eviction of the occupants from
the property
so that the sale could proceed without further ado.
[53]
In the result, I am not persuaded that Mr.
Mayekiso has established the admissibility of the facts he now wishes
to place before
the court on appeal. The allegations amount, in the
main, to inadmissible hearsay and are in any event sorely lacking in
materiality
as to the decision to evict the occupants from the
property more than 2 years ago. In any event, it appears that the
allegations
of dishonesty, deceit and possible fraud on the part of
Patel were already before the court
a
quo
at the time given the contents of
the affidavit of Mr.Mayekiso referred to above.
[54]
Finally, I am not persuaded that the
application to adduce further evidence has been made
bona
fide.
It is clear that Mr. Mayekiso has
known about allegations underpinning the hearsay evidence for quite
some time. Indeed, brief mention
thereof was made by Ms. Buikman SC
when she argued for a postponement of the appeal on 24 August 2018.
And yet, the application
was held back until the very last moment, no
doubt in the hope that its production would occasion yet another
postponement of the
inevitable. It bears mention that the record of
this case shows a persistent pattern of behavior in this regard - one
might even
term it “
a hallmark
”
of the litigation strategy employed by Mr. Mayekiso.
[55]
In the result, I am of the view that the
application by Mr. Mayekiso to adduce further evidence on appeal
falls to be refused and
that the appeal must be decided on the record
as it stands together with the common cause facts that-
·
the property was sold in September 2017 for
R13,2m;
·
it has been transferred and registered in
the name of the purchaser; and
·
Mr. Mayekiso undertook in the application
for leave to appeal to the SCA to vacate the property upon the sale
thereof.
WAS
THE DECISION OF THE COURT
A QUO
JUST AND EQUITABLE?
[56]
After all is said and done the submissions
on appeal on behalf of the appellants, although designed to create an
atmosphere of subterfuge,
mystery and deceit, were of a relatively
narrow focus. Firstly, it was argued that there were certain critical
issues relating
to the status of Patel which were not fully known to
Dolamo J and which would have materially affected his view of the
matter had
he known thereof. This argument does not get off the
ground in light of the refusal to admit further evidence by the
appellants.
Secondly, it was argued by Mr. Melunsky that Dolamo J
failed to properly consider all the material factors before him and
that
his decision to evict the appellants was not just and equitable
in the circumstances.
[57]
Counsel
for the Mayekisos relied heavily in his argument on
PE
Municipality
[15]
and
Berea
[16]
for his submissions that Dolamo J had failed to discharge his
constitutional duty in ordering the eviction. But these are not the
only authorities to be considered. The application of PIE and the
removal of unlawful occupiers of land has generated a considerable
body of law in the last 15 years or so with leading appellate cases
such as
Ndlovu
[17]
,
Blue
Moonlight
[18]
and
Changing
Tides
[19]
also featuring prominently in the debates before our courts.
[58]
What those cases demonstrate first and
foremost is that the facts of each instance of alleged illegal
occupation is the point of
departure. This is so because there are
competing constitutionally entrenched rights at play
viz.
s26(3) of the Constitution, 1996, which provides that people may not
be evicted from their homes without an order of court granted
after
considering all the relevant circumstances, and s25(1) which protects
the rights of owners of private property against arbitrary
expropriation.
[59]
And
so, when applying the established jurisprudence, a court being asked
to apply s4(6) or (7) of PIE
[20]
(which is the statutory instrument which underpins the s26(3) right)
would need to know,
inter
alia
–
·
whether the land in question is privately
owned or whether it belongs to the State (or an arm of government);
·
how long the land has been illegally
occupied;
·
how many people/families/households are
likely to be effected by the proposed eviction;
·
how many of those households are headed by
women;
·
how many children are likely to be
affected, what their ages are, whether they attend school and if so
where;
·
whether there are sick or disabled
occupiers who might be dependent on public health care;
·
whether homelessness is likely to ensue;
and
·
what alternative options, particularly in
respect of emergency housing, can be made available by the local
authority concerned?
[60]
In his argument, Mr. Melunsky stressed the
importance of the presence of at least 2 minor children on the
property pointing out
that the rights of children were considered to
be paramount under the Constitution, the clear imputation being that
the presence
of children on a property might be relied upon to trump
the right of the owner to seek eviction of their parents. In my view
that
submission does not, in and of itself, hold water. A court
considering eviction would always want to know whether there are
children
likely to be effected by such an order primarily because the
court would want to avoid the possibility of children being subjected
to the hardship of homelessness or the possibility of the
displacement of members of a family.
[61]
Mr.
Melunsky went on to complain that Dolamo J had not discharged his
function in accordance with the approach advocated in
Berea
where
the Constitutional Court stressed the following.
“
[46] As
it is apparent from the nature of the enquiry, the court will need to
be informed of all the relevant circumstances in each
case in order
to satisfy itself that it is just and equitable to evict and, if so,
when and under what conditions. However, where
that information is
not before the court, it has been held that this enquiry cannot be
conducted and no order may be granted.”
[21]
Counsel
argued that the court
a quo
did not have sufficient
information before it regarding the effect of an eviction on the
parties’ children and took the judge
to task for not directing
further enquiry. It was suggested, for example, that the court should
have called for a report from a
social worker regarding the interests
of the children.
[62]
Besides the fact that it is well known that
Government appointed social workers are hopelessly overworked and
that their reports
to the courts in both criminal and civil matters
take many months to be completed, the argument does not heed the
directions given
by the Constitutional Court in the very next
paragraph in
Berea.
“
[47]…..
In order to perform its duty properly the court needs to have all the
necessary information.
The
obligation to provide the relevant information is first
and foremost on the parties to
the proceedings
. As officers of
the court, attorneys and advocates must furnish the court with all
relevant information that is in their possession
in order for the
court to properly interrogate the justice and equity of ordering an
eviction. This may be difficult, as in the
present matter, where the
unlawful occupiers do not have legal representation at the eviction
proceedings.”
(Emphasis added)
[63]
In this case, however, the occupiers of the
property have throughout enjoyed legal representation. The opposing
papers were clearly
drafted by lawyers who, in the process of
discharging their professional and constitutional obligations, sought
to place all relevant
factors before the court. For example, in the
founding papers, Patel had stated the following.
“
[16] The
personal circumstances of the respondents, little is known as the
respondents have chosen not to divulge much, if anything,
by way of
personal information to the applicants.
16.1
It should however be noted that both the respondents are in good
health and free of any mental or physical disability.
16.2
The respondents are the parents of four children, a daughter
Cassandra aged 20, a son Jonathan aged 17, a daughter Shalom aged
11
and a son Immanuel aged four.
16.2.1 These
details are gleaned from the affidavits deposed to by the first
respondent in the Western Cape High Court case number
18583/15 on 26
December 2015. It might well be that Jonathan is now an adult.
16.3
I am not aware that any of these children suffers from any mental or
physical disability and same has not been disclosed to
applicants.”
[64]
The reply to those allegations by Mr.
Mayekiso in the answering affidavit is fairly terse.
“
31. The
personal circumstances cited in these paragraphs are correct.
32. However, I
wish to point out that second respondent and I have nowhere to go, if
we are evicted from our home. We shall be left
homeless, with our
children. We have no family to go to and Applicants had failed to
finalise the winding up of the insolvent estate,
as they should have
done. That means, our equity in the estate, which should have accrued
to Second Respondent and myself, remains
under the control of
Applicants, to the detriment of ourselves.”
[65]
In
Ndlovu
the court dealt with the question of
adducing relevant evidence in PIE applications and said the
following.
“
[19]…
Provided the procedural requirements have been met, the owner is
entitled to approach the court on the basis of ownership
and the
respondent’s unlawful occupation. Unless the occupier opposes
and discloses circumstances relevant to the eviction
order, the
owner, in principle, will be entitled to an order for eviction.
Relevant circumstances are nearly without fail facts
within the
exclusive knowledge of the occupier and it cannot be expected of an
owner to negative in advance facts not known to
him and not in issue
between the parties.”
[66]
Yet in answering the case put up by the trustees, Mr. Mayekiso did
not seek to draw to the court’s attention any further
factors
relating to his children which he considered material to the exercise
of the court’s discretion as to whether to
grant an eviction
order or not. The reason for that is obvious: there was nothing more
that he could say in that regard. Further,
while he was quick to seek
to file an affidavit on appeal relating to intervening circumstances
concerning Patel, Mr. Mayekiso
had nothing further which he wished to
say about the 2 children who are still minors, In my view then, the
court
a quo
cannot now be blamed for not doing its job when
there was clearly nothing further that could be said about the
children. I should
point out too that when the court enquired from
Mr. Melunsky whether there were any further facts pertaining to the
children or
the Mayekisos personal circumstances which he might wish
to place before the court, counsel informed us that he had no
instructions
to put any further information before the court.
[67]
What the answering affidavit does stress however is the issue of
homelessness ensuing as a result of an eviction, and the effect
that
this might have on the minor children. In my view, that is indeed the
only context in which the children’s’ interests
fell to
be considered in this case. Dolamo J gave full consideration to the
allegation of homelessness in paras 26 to 39 of his
judgment. I do
not think it is necessary now to recite the full extent thereof; the
following will suffice.
“
[33] The
Mayekisos relied on the judgment of Meer J in
Arendse
v Arendse and Others
[22]
to
allege that an eviction will not be just and equitable if it will
result in homelessness. But the Mayekisos have not attempted
to show
how their eviction would render them homeless save to say that all
their assets were tied up in the insolvent estate. This
is not
sufficient. What they had to show was how they have tried and failed
to find alternative accommodation within their available
resources.
[34] Lubabalo Mayekiso described
himself as an entrepreneur. One can assume that he had been a
successful entrepreneur who was so
successful as to be able to afford
a home in the affluent suburb of Constantia.”
[68]
Dolamo J went on to refer to the litigation in which the Mayekisos
had immersed his family while not taking the court into
his
confidence regarding their personal circumstances. The inference
which therefore can fairly be drawn is that it was not convenient
to
set out personal circumstances such as income and expenditure because
these would not have sustained the bald allegation of
homelessness.
Similarly, a list of failed attempts to secure alternate
accommodation might have assisted the court. Once again,
the absence
thereof in the papers speaks volumes.
[69]
Further, in relation to the claim of imminent homelessness, one
cannot ignore the fact that Mr. Mayekiso has over a number
of years
continued to litigate in numerous matters in this court
persistently and with impunity, at all times with the assistance
of
attorneys and counsel. It goes without saying that lawyers (let alone
senior counsel) do not come cheaply these days and the
availability
of litigation funding, whether from Mr. Mayekiso’s second
estate or from a benefactor well-disposed to the family,
suggests
unequivocally that homelessness is not at all a likely consequence of
an eviction in this matter. The very fact that Mr.
Mayekiso was, for
instance, in a position to brief out of town counsel to initially
argue the appeal (and the court was shown proof
of payment of
relatively large sums of money in this regard in the postponement
application moved by Ms. Buikman SC) and then also
tender payment of
the costs associated with the postponement, are clear proof of the
availability of money which could be put towards
the payment of
rental, thereby avoiding homelessness.
[70]
I should further point out that despite having been sequestrated more
than four years ago, the Mayekisos have, by all accounts,
continued
to enjoy the same lifestyle and standard of living as they always
did. Considering the location of the property, and
the extent of the
expenses which would ordinarily come with living at such address,
even though they have not been paying any rent
for a number of years,
in my view the allegation that they would be rendered “homeless
”
were they to be evicted is nothing more than empty assertion made
with the cynical view of preventing an eviction order from being
granted.
[71]
But the clearest proof that homelessness is not a likely consequence
in this matter comes from the mouth of Mr. Mayekiso himself.
It is he
who assured the SCA that he accepted that the property had to be sold
and it is he who promised under oath that the family
would move out
when the property had been sold and transferred to its new owner. In
neither instance was the word homelessness
mentioned as a factor to
be considered when this undertaking was given.
[72]
Finally, it was argued on behalf of the appellants that an order
should have been made by Dolamo J which accommodated a Fitzhenry-type
proposal. It was said that the family should not have had to move out
until an opportunity had been given for a benefactor to come
to their
assistance and help them out of their predicament. That submission
ignores the structure of the order which was made in
the court
a
quo.
[73]
In the course of his judgment Dolamo J considered the prospect that a
private sale of the property might still eventuate. In
the result,
applying the provisions of s4(7) of PIE, the learned Judge considered
what was “
just and equitable
” in the circumstances
and held as follows.
“
[31] The
only issue is when should the Mayekisos vacate the property or be
evicted if the property is sold before they can rescue
their home
through any lawful scheme they may come up with. The solution in my
view is to afford them a reasonable period within
which to pay the
debts of the estate and other costs, which will entitle them to apply
for their rehabilitation. A period of thirty
(30) days should be
adequate as they claim to have a benefactor
[23]
willing to do so….
[38] I am of the
view, however, that it will not be necessary to immediately order the
eviction of the Mayekisos, if they were to
adhere to their
undertaking to afford the applicants access to the property for
purposes of effecting repairs and any potential
purchaser to view the
property. The Mayekisos cannot also continue to live in the property
without paying rates and taxes.
[39] I deem it
just and fair to give an order which will delay the eviction of the
Mayekisos for a reasonable period of time to
put in place their plans
to save their important asset, being their home. In my view, thirty
days will be sufficient for this purpose.
In the meantime the
Mayekisos can continue to occupy the property, provided they allow
the applicants and potential buyers reasonable
access to the property
for purpose of effecting repairs and viewing, respectively. They must
also pay all rates and taxes levied
on the property. If after a
period of thirty days from the date of this order they fail to come
with an offer to purchase the property,
backed by guarantees, the
applicants can sell the property to any buyer. The sale will be
subject to the buyer affording the Mayekisos
a reasonable time to
vacate the property.”
The
learned Judge then made an order on 23 September 2016 that the
Mayekisos should have to move out on 31 December 2016. In making
that
order Dolamo J expressly forbade the trustees from selling the
property for a period of 30 days unless authorized in writing
by Mr.
and Ms. Mayekiso.
CONCLUSIONS
[74]
I am accordingly of the view that the court
a quo
did not
misdirect itself in any way and that it gave due consideration to all
the relevant factors. In the circumstances it was
just and equitable,
firstly, to grant an order of eviction in this matter, and secondly,
to fix the date of eviction while simultaneously
affording the
insolvents an opportunity to make financial arrangements to secure
the settling of their debts through an external
source. In both
respects the judgment of Dolamo J is a model of clarity and
reasonableness: it very fairly addressed the issues
to hand and was
undoubtedly just and equitable in the circumstances. In the result
the appeal must fail.
[75]
The date fixed for eviction has come and gone and it is now up to
this court to fix a new date. In so doing the court must
have regard
to the jurisprudence which requires us to consider what justice and
equity demands.
[24]
We invited Mr. Melunsky to address us on this point and to make
positive suggestions as to what would be fair in the circumstances.
Counsel was regrettably most obdurate in this regard and despite some
considerable pressing from the court simply refused to be
drawn into
any debate or to make any meaningful submissions. On that score,
while he may have been following instructions (and
it was not made
clear to us that he was), Mr. Melunsky failed in the duty, which the
Constitutional Court in
Berea
has held, he owed to the court.
[76]
Mr. Bremridge SC suggested that, having regard to the fact that the 2
minor children are still of a school-going age, an order
should made
for an eviction during the school holidays so as to cause as little
disruption to their schooling as possible. Realizing
that the spring
holidays were around the corner and that a judgment was only likely
to issue thereafter (as it has), counsel suggested
that a date be
fixed during the December 2018 school holidays. In my view that
proposal is reasonable and an appropriate order
shall be made.
Fortuitously, our order largely accords with the time periods fixed
by Dolamo J save that a further 2 years have
intervened.
COSTS
[77]
While ordinarily the losing party in an appeal will be ordered to
bear its opponent’s costs of suit, it is customary
in matters
such as this to order that those costs be borne by the insolvent
estate. In that way the insolvent is effectively penalized
personally
particularly where there is likely to be a free residue repayable to
him/her upon conclusion of the winding up of the
estate. However, in
a post-hearing note Mr. Bremridge SC referred us to the recent
decision of the SCA in
Mulaudzi
[25]
and
asked that the Mayekisos should be ordered to bear the costs of
appeal personally (effectively from their personal/second estate)
because the appeal was devoid of any merit and he submitted that
their conduct should be considered to be unreasonable and
unjustified.
In that case the learned Judge of Appeal noted that
there were a number of instances where orders for costs have been
made against
insolvent litigants.
[26]
No response to this note was filed on behalf of the Mayekisos.
[78]
I agree with counsel for the trustees that such an order be made. In
light of the undertaking furnished to the SCA in the application
for
leave to appeal almost a year ago, I consider the conduct of the
Mayekisos in the further prosecution of this appeal to be
unreasonable. Similarly, they have behaved disrespectfully towards
the court and their opponents by lodging dilatory applications
at the
last minute. It is apparent that there will be a residue payable to
the insolvents once their estate is finally wound up
and it is
appropriate in the circumstances that they be ordered to bear the
costs personally.
[79]
In relation to the costs of the postponement which was sought on 24
August 2018, Mr. Bremridge SC asked the court to hold Mr.
Mayekiso to
his tender and to order that such costs be awarded to the trustees
separately. In my view such an order is fair despite
the fact that
Mr. Mayekiso is an unrehabilitated insolvent – in making the
tender he clearly warranted that he had the means
with which to bear
those costs.
[80]
The wasted costs of the postponement on 3 August 2018 were caused by
the fact that Engers AJ recused himself and that the court
was
thereafter not quorate. In the circumstances those costs should be
costs in the insolvent estate.
IN
THE RESULT THE FOLLOWING ORDER IS MADE
A.
The appeal is dismissed with costs, such
costs to include -
1.
the wasted costs attendant upon the hearing
of the matter on 3 August 2018;
2.
the application made on 14 September 2018
by the first appellant to lead further evidence on appeal; and
3.
the costs of two counsel where so employed
by the respondents.
B.
All costs orders are to be paid by the
appellants jointly and severally, the one paying the other to be
absolved, save for the wasted
costs of the postponement of the appeal
on 3 August 2018, which will be costs in the sequestration.
C.
It is ordered that the first and second
appellants and all persons holding title under them are to vacate Erf
[…] Constantia,
situate at […], Constantia, Cape Town,
Western Cape by not later than 18 December 2018.
D.
In the event that the first and second
appellants and all persons holding title under them fail to vacate
the property as aforesaid
on or before 18 December 2018, the Sheriff
of this court is authorized and directed to evict them on 31 December
2018.
__________________
GAMBLE,
J
I
AGREE:
____________________
SHER,
J
MINORITY
JUDGMENT
MANTAME
J
[1]
Diverse issues are present in this matter, which have a bearing on
the outcome of this appeal. I have read the judgment
of Gamble
J and agree with the history and the facts of the matter, it would
not be necessary to regurgitate them. However,
I am unable to
agree with my learned brother’s reasoning leading to the
conclusion.
[2]
I have once more read Gamble J’s revisited judgment and
overwhelmingly surprised that this final judgment is nothing other
than a reply to my minority judgment.
[3]
To the extent that a judgment in its nature is a final decision and
not a pleading, I do not intend to fall in the same trap
of turning a
judgment into a pleading of which I imagine is not permissible.
I accept that the judgment I disagreed with
its reasoning has been
queried and unfortunately the reader has not had an opportunity to
have sight of it. For what it is
worth, I stand by my judgment.
[4]
The hearing of this appeal was postponed twice, before it ultimately
sat on 13 September 2018. On 3 August 2018, on the
initial
hearing, there was an application by the appellant for the recusal of
Engers AJ as the judge previously presided in one
of the
interlocutory applications which involved the parties and his
objectivity was somehow questionable to the appellants. After
the
Court granted the order in appellant’s favour, the Court did no
quorate. The matter was therefore postponed to
24 August 2018
for another judge to replace Engers AJ. Sher J was therefore
appointed to be the third judge.
[5]
On 24 August 2018, when the matter sat for the second occasion,
appellants brought an application for postponement in order
to
consider the heads of argument that were prepared by their counsel
from Pretoria, Advocate Conraad Swanepoel, who did not appear
in
court and whom it later transpired that he was not a member of the
Pretoria bar. Although it was said that this advocate
was
briefed and paid by the appellants, it further came to light that he
could not deliver according to the mandate given.
Appellants,
therefore, needed to brief new Counsel in order to properly prepare
for this appeal. This Court granted this
application, with a
further order that heads of argument be filed by appellants by no
later than 10 September 2018. The matter
was postponed to 13
September 2018.
Applications
by both parties to lead further evidence
[6]
When the matter ultimately came before this Court on 13 September
2018, two (2) applications to lead further evidence were brought
before this Court for consideration from both appellants and
respondents respectively. Respondents filed their application
to lead evidence on 20 July 2018, by way of an affidavit of Mr Schalk
Marais (“
Mr Marais
”) an attorney for the
respondent to the following: that appellants agreed to vacate the
immovable property if and when it
is sold and registered into the
name of a third party; that appellants were also willing to agree to
a Court order for that purpose
and that there can be no fears by any
purchasers that they shall fail to vacate the immovable property, if
they were to purchase
it.
[7]
On 18 September 2017, the property previously owned and registered in
the name of the appellants, 18 Belair Drive Constantia,
Western Cape
(“
the property”)
was sold to one Dirk Shamil
pursuant to an auction by Claremart Auctioneers at a purchase price
of R13.2 million. On 4 December
2017, this property was
transferred to the said purchaser. In the light of the
undertaking given in their affidavit to the
Supreme Court of Appeal,
it was said that the appellants are obliged and can have no objection
to vacating the property.
In the result, it was Mr Marais’
assertion that it is necessary that Dolamo J’s order be given
effect to and put into
execution.
[8]
Appellants did not oppose this application on the strength that they
have filed the same or similar application. It was
their
contention that similar principles should apply. However, respondents
remained steadfast in opposing appellants’ similar
application.
[9]
On 12 September 2018, appellants filed their application to adduce
further evidence. According to them, this information
is
relevant and should have been put before this Court at the hearing of
the eviction application before Dolamo J, of which appellants
were
unaware. It mostly affected the approach that Dolamo J was
enjoined to apply in deciding the eviction application.
It
pertained to the
locus standi
of one trustee of the joint
insolvent estate and the manner in which the trustee was appointed
and subsequently removed from office,
and all of which happened
during and after the eviction order.
[10]
It was submitted on behalf of the appellants that first respondent is
no longer the trustee in these proceedings. In
his stead two
(2) other trustees have been appointed, and they are Duane Colin
Starkey and Nandipha Vinqi. As it appears
from the Certificate
of Appointment of Trustee issued by the Master of the High Court on
13 October 2014, the first trustee is
‘Mohamed Ismail Patel’.
The said ‘
Mohamed Ismail Patel
’ does not exist and
did not exist at any time relevant thereto. The person who went
by this name was an imposter, a
perjurer, not fit to be a trustee and
or did not exist at all. It was understood by the appellants
that the true name of
the person who purported to be ‘
Mohamed
Ismail Patel
’ was in fact ‘
Patel Muhamed’
.
These are two (2) different persons with two (2) different identity
numbers. Whoever this individual was, he was not
fit or proper
person to be a trustee of the appellant’s insolvent estate.
The person the Master thought she was appointing
appears to have been
non-existent or died. Patel Muhamed assumed this person’s
identity for purposes of obtaining appointments
as a liquidator and
for purposes of being admitted as a practicing attorney. For
his fraudulent ways, this Court struck him
off the roll of attorneys
of this Court on 24 March 2017.
[11]
As a consequent thereto appellants have filed an application to set
aside the sequestration of their joint estate as the inquiry
by the
Master and the Court is warranted on the person referred to as
first respondent masquerading as ‘
Mohamed Ismail Patel
’.
This questionable character was said to have been involved in
fraudulent activities and thereby misappropriating
millions of rands
from the estates of the unsuspecting persons. Appellants have a
reason to believe that the winding up of
their insolvent estate was
part of the same grand scheme. For instance, the proceeds of
the sale of their movable assets
remain unaccounted for in the
insolvent estate. Further, this questionable
Mohamed Ismail
Patel
deposed to several affidavits in this Court in which the
facts were not true. Such is evident in Case No: 21851/16 that
he
perjured himself in several affidavits.
[12]
It was appellants’ submission that Dolamo J’s attention
should have been drawn to these facts in order to consider
the
eviction proceedings and exercise his discretion properly. The
second and third trustees in the appellants’ insolvent
estate
admitted in a meeting before the Master that about R5 million worth
of creditors whom first respondent alleged that supported
his
appointment did not exist. First respondent fabricated these
creditors to gain an appointment from the Master as a trustee
to
their joint estate. These are the same creditors that inflated
the amount which the trustees claimed that it was owed
by the
insolvent joint estate at the time of the eviction application.
The amount claimed by the creditors was considerably
reduced, which
begs the question of whether the sale of the appellants’
immovable property was necessary in the circumstances
where
appellants purchased it for R19,95 million and the trustees sold it
at an auction for R13.2 million.
[13]
As appellants put it, it is imperative that this information be
considered by this Court as it relates to the proper administration
of justice, the integrity of the Court and the insolvency processes.
[14]
Further, it was appellants’ submission that not all relevant
circumstances were put before Dolamo J, for example, whether
an
alternative accommodation has been made available to the appellants
as it was their contention that should they be evicted they
will be
rendered homeless. Also, it was put in question whether the
rights and needs of appellants children were taken into
account, more
especially the two (2) minor children aged thirteen (13) and six (6)
years respectively.
[15]
It was appellants’ assertion that if all this information and
relevant considerations were taken into account, the court
a
quo
would have exercised its discretion just and equitably before
granting the eviction order.
[16]
This application to lead further evidence was opposed by the
respondents on the basis that the test for the admission of further
evidence on appeal is succinctly stated in
The City of
Johannesburg v Changing Tides 74 (Pty) Ltd
2012 (6) SA 294
SCA
at para [61] that:
“
The
applicant must give a reasonable explanation for the failure to
tender the evidence at first instance; the evidence must be
credible
and materially relevant to or decisive of the outcome of the
proceedings.
”
It
was argued that the application to lead further evidence must not
cause prejudice to any of the parties. First respondent
was
removed as a trustee over a year ago i.e. 7 November 2016. This
fact was known to the legal representatives that preceded
those who
are currently acting for the appellants. While the allegations
against first respondent might not have been known
by the appellants,
it appears that applicant seeks to present at best, allegations that
might be hearsay, but are more in the realm
of idle speculation.
Not a single objective fact for the removal of first respondent has
been presented before this Court.
[17]
It was, however, respondents’ contention that the allegations
relating to the first respondent have no bearing on the
instant
matter as it is common cause between the parties and was conceded
that the property has indeed been sold and transferred.
[18]
First respondent had the necessary
locus standi
to bring the
eviction proceedings as a trustee. The attempt by the appellant
to adduce further evidence should be rejected
by this Court as
respondents did not have time to deal with it. It later turned
out that an answering affidavit had been
prepared by the respondents
dealing with this new evidence.
[19]
A notice in terms of
Section 76
(1) and (2) of the
Insolvency Act 24
of 1936
for the substitution of trustees was handed up in court by
respondents’ Counsel. According to this notice, first
respondent
was replaced by Duane Colin Starkey and Nandipha Vinqi as
co-trustees of the insolvent estate with second and third
respondents.
Appellants did not oppose the handing up of this
notice in court, as it was common cause that indeed first respondent
has been
substituted by these trustees. The Court granted an
order that the two (2) trustees should be added as fourth and fifth
respondents
respectively. For purposes of the record, it should
continue to reflect
Mohamed Ismail Patel
as the first
respondent.
[20]
Section 19(b)
of the
Superior Courts Act 10 of 2013
confers a wide
competence on the court exercising appeal jurisdiction. While
holding that it is undesirable to lay down definite
rules as to when
the court ought to accede to the application of a litigant desirous
of leading further evidence upon appeal, the
Appellate Division (as
well as the Supreme Court of Appeal and the Constitutional Court) has
in a series of decisions laid down
certain basic requirements as
follows:
“
(a) There
should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is
sought to
be lead was not led at the trial;
(b) There should be
a
prima facie
likelihood of the truth of the evidence;
(c) The evidence should be materially
relevant to the outcome of the trial – See
Simpson v
Selfmed Medical Scheme And Another
1995 (3) SA 816
(A) at 825 C –
826; Rail Commuters Action Group And Others v Transnet Ltd t/a
Metrorail And Others
[2004] ZACC 20
;
2005 (2) SA 359
(C).
”
[21]
To the extent that appellants have not opposed respondents’
application to adduce further evidence and respondents opposed
appellants’ application to adduce further evidence, it is of
paramount importance that I should deal with this application.
First, it is unconscionable as to how respondents take issue with the
late filing of appellants’ application, whereas they
themselves
handed up in Court notice of substitution of trustees and further
moved their own application to adduce evidence ten
(10) days before
the initial hearing date. The fact that appellants are
sophisticated individuals who live in one of the
most expensive
suburbs and occupying a R19.95 million house does not make them
automatically knowledgeable with the Court procedure.
It may
well be that appellants and their erstwhile legal representatives
knew about the questionable conduct of the first respondent
but did
nothing about it. Again I am not aware exactly which legal
representatives respondents referred to in this regard as appellants
have been represented by a couple of them and did hold their brief
that long. Now, could a conduct of the previous legal
representatives, in general, be a ground of prejudice in prosecuting
appellants’ appeal? Does that mean if appellants had
their
chance to present their case previously, but for whatever reason
missed it they are now precluded from presenting it in future,
regardless of how materially relevant is the information? The
Constitutional Court in
De Lange v Smuts NO And Others
[1998] ZACC 6
;
1998 (3)
SA 785
(CC)
at para
[131]
said the following:
“
Everyone
has the right to state his or her own case, not because his or her
version is right, and must be accepted, but because
in evaluating the
cogency of any argument, the arbiter, still a fallible human being,
must be informed about the points of view
of both parties in order to
stand any real chance of coming up with an objectively justifiable
conclusion that is anything more
than chance.
”
[22]
If it is appellants’ contention that the omission of this
information before Dolamo J affected the outcome of their case,
in my
view, appellant cannot be penalised in bringing their application on
the eve of the hearing. It cannot be disputed
that appellants
got a raw deal from their previous legal team/s. They failed to
deliver according to appellants’ mandate
which culminated into
this appeal being postponed. Now that they ultimately found
Counsel who was able and willing to deliver
in accordance with their
instructions, this Court cannot be seen to be shutting the door on
the appellants’ face. It
has to consider their
application in the same way it considered respondents’
application. Fairness dictates that there
should be parity of
arms in presenting the case and that extends to the adjudication of
the same matter.
[23]
As stated by appellants Counsel, due to the amount of time they had
in preparation of this appeal, it was not possible to present
evidence before this court on the shady character of the first
respondent as same had been requested from the Master of the High
Court and not yet available. But judging from the judgments of
this court, there is enough information and or explanation
given to
cast aspersions on the
locus standi
of the first respondent.
For instance, upon investigation on the first respondents’
conduct by the Cape Law Society,
it found that numerous
transgressions have been committed by the first respondent and filed
a striking off application. This
Court in
Cape Law
Society v
Muhamed (4568/2016 [2017] ZA WCHC 29
(24 March 2017)
at para [27] found that:
“
The
respondent has not answered any of these serious supplementary
allegations. There is unanswered evidence of a misappropriation
of trust funds as an attorney in relation to the single file made
available to the curator and of further substantial misappropriations
and
dishonesty as an insolvency
practitioner
.
”[my
underline]
[24]
The test in these types of applications is that applicant should
furnish a reasonably sufficient explanation based on allegations
that
may be true, there should be a
prima facie
likelihood of truth
in the evidence and such evidence should be relevant to the outcome
of the matter. The allegations of first
respondent as an imposter are
of a serious nature. The court needed to have investigated the
fact that the person initiating
the eviction proceedings is the
person he claims to be. If first respondent deposed to the founding
affidavit that he is an insolvency
practitioner, the Court should be
satisfied that he is indeed the person he swears to be. In
terms of Justices of the Peace
and Commissioners of Oaths Act 16 of
1963, as amended, Section 9 states that:
“
Penalties
for false statements in affidavits and certain other declarations –
Any person who,
in an affidavit, affirmation or solemn or attested declaration made
before a person competent to administer an oath
or affirmation or
take the declaration in question, has made a false statement knowing
it to be false, shall be guilty of an offence
and liable upon
conviction to penalties prescribed by law for the offence of
perjury.
”
[25]
If it is found that the founding affidavit in the eviction
proceedings before Dolamo J, for instance, was deposed to by a
perjurer – such proceedings in my view cannot be legitimised by
the fact that there were two (2) other trustees who confirmed
that
the facts are true and correct. If aspersions are cast on the
very existence or non-existence of the deponent, such
proceedings
might end up being rendered a nullity. The well-established principle
that no Court will lend its aid to a party who
finds his cause of
action upon an illegal act should have equally applied in this
matter.
[26]
It might have been argued that no evidence was put before this Court
in order for the respondents to counter the appellants’
allegations. I am convinced that this Court as a Court of
appeal should not occupy itself with the question of whether there
is
enough evidence put before it for the said allegations. The
test is that “
there should be some reasonably sufficient
explanation, based on allegations which may be true, why the evidence
led was not led
at trial
.” Such an inquiry should
have been made at the hearing by the court of first instance.
[27]
For these reasons, I would grant the application to lead further
evidence to appellants. Given that there was no opposition
to
respondents’ similar application; I would similarly grant the
application.
Just
and Equitable
[28]
It was appellants argument further that the court a
quo
committed a misdirection by granting an eviction order without
conducting an inquiry in terms of Section 4(7) of the Prevention
of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(“
PIE
”)
“
4(7) If
an
unlawful occupier
has occupied the land in question for
more
than six months
at the time when
the proceedings are initiated,
a
court may grant an order for eviction
if it is of the opinion that it is
just
and equitable
to do so, after
considering all the relevant
circumstances
, including, except
where
the land is sold in a sale
of execution
pursuant to a
mortgage,
whether land has been
made available or can reasonably be made available by a municipality
or other organ of state
or
another land owner
for the
relocation of the
unlawful occupier
, and including
the rights and needs of the elderly,
children
,
disabled persons and households headed by women.
”[my
underline]
[29]
It is common cause that Dolamo J granted an eviction order based on
the fact that the appellants are unlawful occupiers within
the
meaning of Section 1 of PIE. In fact, it cannot escape one that
the reasoning and conclusion in Dolamo J’s judgment
is premised
on PIE. Now, did the court a
quo
satisfy the
requirements in terms of Section 4(7)
supra
in arriving at its
order? It is appellants’ contention that their relevant
circumstances were not properly investigated
in order for the court
to grant the eviction order, more especially the interests of the
minor children and that should they be
evicted, they will be rendered
homeless.
[30]
Much was said about the appellants’ family lifestyle, that this
case involved a sophisticated property worth millions
with
magnificent views and that appellants are people sitting with fancy
cars and so on. These are somehow not candidates
to be
relocated to “
Wolwerivier” or “Bokmakierie”
,
the integrated human settlement option for the displaced
.
Unfortunately, that is pure speculation as that was not
appellant’s case. On the reading of PIE, its aim and
purpose
is to provide for procedures for eviction of unlawful
occupiers, as no one may be evicted from their home, without an order
of
court made after considering all the relevant circumstances.
PIE is not only applicable to certain sectors of community or
category of people. In as much as the South African community
is not categorised according to classes in the democratic
dispensation, I find nowhere in PIE where certain considerations are
reserved for a certain sector of the community. In any
event,
the question of whether the operation of PIE is restricted to poor,
homeless persons who out of necessity arising from pass
laws, have
occupied the land of others without consent, is the question that
divided the SCA in
Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA).
It would be an unfortunate situation
if such were to be repeated in this matter.
[31]
If indeed appellants’ sophisticated lifestyle was a
consideration or not a consideration when Dolamo J granted an
eviction
order, in my opinion, that needed to have reflected in his
judgment. The fact that appellants stated that, should they be
evicted, they have nowhere to go – that should have triggered
an investigation as the consequence of the eviction order would
have
rendered them homeless. The level of sophistication of
appellants’ lifestyle is not a reason for the determination
of
the stipulated requirement. The eviction order should have been
granted after relevant considerations have been taken
into account in
my view. The appellants’ circumstances are not at all
excluded from those that appear in Section 4
(7). So, there
would be no justification in classifying them in a category that is
not catered for in our constitutional
dispensation. Section 9
of The Constitution in the Bill of Rights guarantees that everyone is
equal before the law and has
the right to equal protection and
benefit of the law. Discrimination in whatever form is regarded
as unfair, and therefore
unwarranted.
Consideration
of all relevant circumstances
(i)
Report by Municipality
[32]
It is common cause therefore that despite the City of Cape Town being
the third respondent in the eviction proceedings and
fourth
respondents in the appeal proceedings, no report was furnished by
them. It is a well-established principle that eviction
from
one’s home always raises a constitutional issue – See
Occupiers, Berea v De Wet
2017 (5) SA 346
(CC)
at para
[21];
Machele and Others v Mailula and Others
2010 (2) SA 257
(CC).
[33]
The local authority has obligations to respond to the notice if
served in terms of Section 4(2) of PIE. It has a duty to consider
whether there is a dispute in terms of Section 7 of PIE, and if so,
whether to appoint person/s to mediate the dispute. This
duty
has been one of necessity in so many cases and courts have repeatedly
emphasised its importance – See
Sailing Queen Investments
v The Occupants La Colleen Court 2008 (6) BLCR 666 (W); Cashbuild
(South Africa) (Pty) Ltd v Scott and
Others
2007 (1) SA 332
(TPD);
Lingwood and Another v Unlawful Occupiers of Erf 9 Highlands
2008 (3)
BCLR 325
(W).
[34]
It has been repeatedly stated that each eviction has its own
intractable elements. For instance, in
City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
2012 (2) SA 104
(CC)
– the
issue was the constitutionality of the differentiation made by the
appellant in its housing policy, between persons
it evicted from ‘bad
buildings’, and persons that private landowners evicted.
The Constitutional Court held that
it was unreasonable to
differentiate between these two (2) groups. The local authority
has a duty to provide temporary emergency
accommodation to all
persons being evicted who have no alternative accommodation (paras 50
– 51). It should not be
assumed that simply because the
alleged unlawful occupiers occupied a R19.95 million worth of a
property, they cannot be rendered
homeless. Due process
requires that an inquiry be made.
[35]
It then follows that whether the unlawful occupier has a
sophisticated or unsophisticated lifestyle, the fact that it is
alleged
that eviction would render such unlawful occupier homeless
has to be investigated by the court and without a doubt, the local
authority
has to furnish a report. The court cannot assume that
an unlawful occupier’s circumstances do not need investigation
based on the lifestyle of that person.
[36]
This is a matter where appellants alleged that they have nowhere to
go, so should they be evicted from their home, they shall
be left
homeless with their children. In
Occupiers,
Berea
(supra) at para [61] the
Court held:
“
It
follows that where there is a risk that homelessness may result, the
availability of alternative accommodation becomes a relevant
circumstance that must be taken into account. A court will not
be able to decide the justice and equity of an eviction without
hearing from the local authority upon which a duty to provide
temporary emergency accommodation may rest. In such an instance
the local authority is a necessary party to the proceedings.
Accordingly, where there is a risk of homelessness, the local
authority must be joined
.”
It
is, therefore my view, that in the face of the allegation that
appellants agreed to vacate the immovable property if and when
it is
sold and registered into the name of the third party, the court a
quo
should have made inquiries on their arrangements for an
alternative accommodation should they be evicted. In
Occupiers
Berea
(supra)
, the unlawful occupiers consented to an
order evicting them, but the Constitutional Court held that the Court
is not absolved from
the obligation to consider all relevant
circumstances before ordering an eviction.
[37]
There is no indication from the judgment of Dolamo J that the report
by the local authority was ever called for and considered.
The
only reason for the delay of the eviction was to afford the
appellants a reasonable period of time in order to put in place
their
plans to save their important asset, being their home. In my
view, this was a misdirection on the part of the court
a quo
.
(ii)
Interest of the minor children
[38]
As stated above, and to be exact in para [39] of the judgment of
Dolamo J, this is a matter where the court a
quo
only stated
that the personal circumstances of the appellant were not placed
before Court. In the same paragraph the Court
states that the
appellant divulged that they have nowhere to go and if they are
evicted from their home, they shall be left homeless
with their
children. If the Court considered these allegations to be
serious, it should have investigated them further, other
than making
a comment in passing. To simply state that appellants enjoyed
good health without any facts supporting such a
conclusion is rather
misguided and or irresponsible. Further, stating that
appellants resided or were parents of four (4)
children aged 20, 17,
11 and 4 years respectively (at that time) was not enough.
[39]
The Courts have long prioritised the interests of children more
especially when it came to the alleged homelessness.
Section
4(7) specifically states that a court may grant an eviction order
after circumstances have been considered …
including the
rights and needs of the children
. In addition, the rights
of children are guaranteed in Section 28 of Chapter 2 of the Bill of
Rights; and in Section 7 of
the Children’s Act 38 of 2005.
It is only when those requirements have been met and the court is
satisfied as such
that the court can proceed with an eviction order.
The Court need not take a passive approach and assume the unlawful
occupiers’
circumstances rather incorrectly.
In
Occupiers, Berea
(supra)
para [47] the Court
stated:
“
It
deserves to be emphasised that the duty that rests on the court under
section 26(3) of the Constitution and section 4 of PIE
goes beyond
the consideration of the lawfulness of the occupation. It is a
consideration of justice and equity in which the
court is required
and expected to take an active role. In order to perform its
duty properly the court needs to have all
the necessary information.
The obligation to provide the relevant information is first and
foremost on the parties to the
proceedings. As officers of the
court, attorneys and advocates must furnish the court with all
relevant information that
is in their possession in order for the
court to properly interrogate the justice and equity of ordering an
eviction
”.
[40]
It might be that appellants themselves failed to provide relevant
information before Court. In my opinion, the Court as a final
arbiter
of a just and equitable order should have called for that information
if parties fell short. In
Occupiers, Berea
(supra) at [52] it was stated:
“
The just
and equitable enquiry is an innovation under the Constitution and
PIE, which requires the Court to be proactive to establish
the
relevant facts. At the very least, if the Court was aware of
its constitutional duties, it would have realised that it
did not
have all the relevant facts before it and would not have granted the
eviction
.”
[41]
In addition, Sachs J in
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC)
para [36] stated:
“
The court
is thus called upon to go beyond its normal functions and to engage
in active judicial management according to equitable
principles of an
ongoing, stressful and law – governed social process.
This has major implications for the manner in
which it must deal with
the issues before it, how it should approach questions of evidence,
the procedures it may adopt, the way
in which it exercises its powers
and the orders it might make. The Constitution and PIE require
that, in addition to considering
the lawfulness of the occupation,
the court must have regard to the interest and circumstances of the
occupier and pay due regard
to broader considerations of fairness and
other constitutional values, so as to produce a just and equitable
result.
”
Other
than the ages of the children of the appellants, it is clear that the
court
a quo
did not have any information about their health,
welfare including care, education, social and cultural and religious
practices
that could be considered relevant to the eviction.
For those reasons, the court a
quo
erred in granting an
eviction order without probing any of the children’s’
rights and needs.
(iii)
Any other relevant circumstances
[42]
Sachs J in
Port Elizabeth Municipality
(supra) at
para [30] and [31] suggests that:
‘
[30]
There is nothing in s6 to suggest that the three specifically
identified circumstances are intended to be the only ones to
which
the court may refer in deciding what is just and equitable.
They are peremptory and not exhaustive. It is clear
both from
the open-ended way in which they are framed and from the width of
decision-making involved in the concept of just and
equitable, that
the court has a very wide mandate and must give due consideration to
all circumstances that might be relevant.
Thus the particular
vulnerability of occupiers referred to in s4 (the elderly, children,
disabled persons and households headed
by women) could constitute a
relevant circumstance under s6. Similarly, justice and equity
would take account of the extent
to which serious negotiations had
taken place with equality of voice for all concerned. What is
just and equitable could
be affected by the reasonableness of offers
made in connection with suitable alternative accommodation or land,
the time scales
proposed relative to the degree of disruption
involved, and the willingness of the occupiers to respond to
reasonable alternatives
put before them.
[31]
The
combination of circumstances may be extremely intricate, requiring a
nuanced appreciation of the specific situation in each
case.
Thus, though there might be a sad uniformity in the conditions of
homelessness and desperation which lead to unlawful
occupations, on
the one hand, and the frustration of landowners at being blocked by
intruders from enjoyment of their property,
on the other, the actual
details of the relationships involved are capable of infinitive
variation. It is not easy to classify
the multitude of places
and relationships involved. This is precisely why, even though
unlawfulness is established, the eviction
process is not automatic
and why the courts are called upon to exercise a broad judicial
discretion on a case by case basis.
Each case, accordingly, has
to be decided not on generalities but in the light of its own
particular circumstances. Every
situation has its own history,
its own dynamics its own intractable elements that have to be lived
with (at least, for the time
being), and its own creative
possibilities that have to be explored as far as reasonably
possible. The proper application
of PIE will therefore depend
on the facts of each case, and each case may present different facts
that call for the adoption of
different approaches
.”
Similarly
in this matter, it might be argued that first
respondent was authorised to bring the proceedings as a trustee for
eviction of appellants
before this Court in terms of
Section 73(1)
of
the
Insolvency Act 24 of 1936
. But, if the circumstances
leading to his appointment as such are questionable, in my opinion,
the performance of his duties
as a trustee cannot be legitimate.
This court cannot be seen to be embracing and or enforcing the
consequences arising from
an illegal appointment of the first
respondent. The allegations of first respondent’s
masquerading as somebody that
he is not, in my view, taint the entire
proceedings in the court
a quo
.
This is something relevant to the proceedings that should have been
put before the court a
quo
,
more especially that there are allegations that the proceeds of
movable assets were not accounted for by the first respondent.
The
fact that the first respondent was ultimately removed by the Master
in the appellants’ insolvent estate, in my opinion,
raises a
red flag that something might be amiss about his character. It
might have been that this is a matter for investigation
by the
police, but in my view, the first inquiry should have started with
the court hearing the eviction application.
[43]
The issues in this appeal are not moot and cannot be rendered moot by
the appellants’ undertaking to vacate the property.
Even
if that was so, the Courts are enjoined to balance the interests of
the parties before they issue eviction orders. The
court a
quo
was similarly enjoined to balance the statutory duties of the
respondents (and enquire on their questionable personalities) with
the constitutional rights of the appellants and their children.
[44]
To the extent that the court a
quo
found appellants to be
unlawful occupiers, they should be treated as such to the conclusion
of the eviction proceedings.
[45]
In conclusion, for the reasons stated above, I am of the view that
both appellant and respondents should be granted leave to
adduce
further evidence and the appeal be upheld with costs of 3 August 2018
and 13 September 2018. Appellants should remain liable
for the costs
of 24 August 2018.
_________________________
MANTAME
J
WESTERN
CAPE HIGH COURT
[1]
Muller v De Wet NO and
Others
1999 (2) SA 1024
(W) at 1029 - 1030
[2]
Hendricks v Hendricks
2016 (1) SA 511
(SCA) at [7]
[3]
Erasmus,
Superior Court Practice, (2
nd
ed) Vol 2 at A2-69;
Rail
Commuters Action Group and others v Transnet Ltd t/a Metrorail and
others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at
[41]
– [43];
Allpay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive
Officer, South African Social Security Agency
2014 (1) SA 604
(CC) at [94]
[4]
Reference is made, for instance, to case nos 21851/2016 and 9318/17.
[5]
Case no 4568/2016, reported in SAFLII as
[2017] ZAWCHC 29
(24 March
2017)
[6]
In accordance with the SAFLII confidentiality policy the full
identity numbers have been redacted.
[7]
Act 24 of
1936 (“
the
Act”
)
[8]
“
76(1) Whenever
a trustee of an insolvent estate has vacated his office or has been
removed from office or has resigned or
died, no legal proceedings
previously instituted, in which the estate is involved, shall lapse
merely by reason of the vacating,
removal, resignation or death.
(2)
The court in which any such proceedings are pending may, upon
receiving notice of the vacating, removal, resignation or death,
allow the name of the surviving or new trustee to be substituted for
the name of the former, and the proceedings shall thereupon
continue
as if the surviving or new trustee had originally represented the
estate in those proceedings."
[9]
S60(e) of the Act.
[10]
Mgoqi v City of Cape Town
and another
2006 (4) SA
355
(C) at [124] – [125]
[11]
S v Mkise; S v Mosia; S v
Jones; S v Le Roux
1988
(2) SA 868 (A)
[12]
74 of 1964
[13]
In terms of s60(e) of the Act
[14]
GJ Coles & Co Ltd v
Retail Trade Industrial Tribunal
(1987) 7 NSWLR 503
at 525
[15]
Port
Elizabeth Municipality v Various Occupiers
2005 (1) SA 217 (CC)
[16]
Occupiers,
Berea v De Wet N.O. and Another
2017 (5) SA 346 (CC)
[17]
Ndlovu v
Ngcobo; Bekker and Another v Jika
2003 (1) SA 113 (SCA)
[18]
City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
2012 (2) SA 104 (CC)
[19]
City of
Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2102 (6) SA 294 (SCA)
[20]
S4(6) applies to land which has been unlawfully occupied for less
than 6 months and s4(7) applies in respect of a period longer
than 6
months. It is common cause that the present application was brought
in terms of s4(7)
[21]
The authorities referred to were
PE
Municipality
at [32]
and [58] - [60] and
Changing
Tides
at [26] –
[27].
[22]
2013 (3) SA 347 (WCC)
[23]
This was evidently
a reference to Mr
Fitzhenry.
[24]
Changing Tides
at [25]
[25]
Mulaudzi v Old Mutual Life
Assurance Co (South Africa) Ltd and Others
2017 (6) SA 90
(SCA) at [73]
[26]
De Beer v Olivier en ‘n
Ander
1966 (1) SA 684
(O);
Nieuwoudt v The Master and
Others NNO
1988 (4) SA 513
(A) and
De Polo and Another
v Dreyer and Others
1991
(2) SA 164
(W)