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[2021] ZAWCHC 277
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Communicare v Apolisi and Others (2912/21; 3653/21; 4177/21) [2021] ZAWCHC 277; 2023 (6) SA 250 (WCC) (11 August 2021)
OFFICE
OF THE CHIEF JUSTICE
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE NO:2912/21
COMMUNICARE
Applicant
v
ZUZEKA
APOLISI
1
st
Respondent
ANY
AND ALL OTHER OCCUPIERS OCCUPYING THE
2
nd
Respondent
PROPERTY
SITUATED AT 28 YSTERPLAAT, BROOKLYN
CITY
OF CAPE TOWN
3
rd
Respondent
and
CASE
NO: 3653/21
COMMUNICARE
Applicant
v
Ms
NCUMISE
1
st
Respondent
ANY
AND ALL OTHER OCCUPIERS OCCUPYING THE
2
nd
Respondent
PROPERTY
SITUATED AT 27 DE MIST STR, BROOKLYN
CITY
OF CAPE TOWN
3
rd
Respondent
and
CASE
NO: 4177/21
COMMUNICARE
Applicant
v
SHEILA
MOGOJO
1
st
Respondent
ANY
AND ALL OTHER OCCUPIERS OCCUPYING THE
PROPERTY
SITUATED AT 47 JUSTIN STR, DENNEHUIS
COMPLEX
2
nd
Respondent
CITY
OF CAPE TOWN
3
rd
Respondent
JUDGMENT DELIVERED ON
THIS 11
th
DAY OF AUGUST 2021
FORTUIN, J:
A.
INTRODUCTION
B.
[1]
This matter is a consolidation of three urgent spoliation
applications, in the alternative, three
urgent eviction applications
in terms of section 5 of the Prevention of Illegal Eviction of
Unlawful Occupiers Act No 19 of 1998
(hereinafter referred to as
‘PIE’). Communicare NPC is the applicant in all
three matters. Ms Zuzeka Apolisi
is the first respondent in
case no
2912/21
(first
application); Ms Ncumise in case no
3653/21
(second application); and Ms Sheila Mgojo
in case no
4177/21
(third
application).
[2]
The applicant is an Incorporated Association not for gain, duly
incorporated in terms of sec 21
of the Companies Act 61 of 1973.
[3]
The following identical relief was sought in respect of each of the
individual applications:
“…
2.
That all those persons presently in possession of or occupying the
property …:
2.1)
Immediately vacate the property and be ejected therefrom directly
after the granting of this order;
2.2)
Be and are interdicted and restrained from returning to the property
and/or possessing it or occupying it
after the granting of this
order; and
2.3)
That the Sherriff be authorised to, with the assistance of the South
African Police Service, to eject those
of the respondents
occupying the property in the event of them failing or refusing
to do so.
3.
Costs against those of the respondents who oppose the application.
…”
B.
COMMON CAUSE BACKGROUND FACTS
[4]
The applicant is the owner of Erf 125943, commonly known as 28
Ysterplaat Street, Brooklyn (hereinafter
referred to as “Ysterplaat
Street”) ; Erf 125948, commonly known as 27 De Mist Street,
Brooklyn (hereinafter referred
to as “De Mist Street”);
and Unit 2, 47 Justin Street, Dennehuis Complex, Brooklyn
(hereinafter referred to as “Unit
2”).
[5]
The applicant’s core business is the facilitation of the
provision of affordable accommodation,
through social investment
programmes for the benefit of citizens of the Western Cape. It is a
non-profit organization, which does
not receive operating subsidies
or grants. The rent charged has to cover the costs of running and
maintaining the housing complex,
with some rentals being used to
cross-subsidise the rentals in other units.
[6]
On or about 7 February 2021, it was discovered that the De Mist
Street property was broken into,
but unoccupied. Attempts were
made by the applicant to have the locks replaced, and to have one
Thabo sleep in the property
to secure it. While fixing the new
locks, Ms Ncumise arrived and managed to get a set of keys from the
locksmiths.
She barricaded herself inside the property, and is
still in occupation thereof.
[7]
On 23 February 2021, representatives of the applicant found Unit 2
occupied by Ms Mogojo, who
then made allegations of sexual assault
against them. The police arrived on the scene and informed them
that they could not
evict her without a court order. These
allegations will be discussed later.
[8]
On 1 March 2021, the applicant discovered that Ysterplaat Street was
broken into, and occupied
by Ms Apolisi and two other men. The
applicant counter-spoliated the property for one day, but was unable
to hold onto it.
Ms Apolisi, with the assistance of unknown
others, was unlawfully placed in occupation of the property again.
[9]
The applicant launched proceedings for a
mandament van spolie
in the first application on 16 February 2021, and it was set down for
hearing on 19 February 2021. The second application
was
launched on 26 February 2021, and was set down for hearing on 3 March
2021, and the third application was launched on 8 March
2021, and was
set down for hearing on 10 March 2021.
[10]
The three matters were consolidated on 19 March 2021, and were
postponed for hearing to the semi-urgent roll
on 29 April 2021.
[11] In
the
interim
, on 9 April 2021, in a separate application,
Dolamo J granted an order, issuing a notice in terms of sec 5(2) of
PIE, for an eviction
order in terms of the Amended Notice of Motion,
which application was also to be heard on 29 April 2021.
[12]
The applicant’s amended notice and supplementary affidavit
remained unanswered by the respondents,
who elected to stand by their
answering affidavits to the initial application for a
mandament
van spolie
.
[13] It
is common cause that none of the respondents had any permission to
occupy these units.
[14]
Ultimately, the applicant sought an order ejecting the respondents,
either in terms of the
mandament van spolie
, or alternatively
in terms of sec 5 of PIE.
C.
THE APPLICANT’S VERSION
[15] It
is the applicant’s version that, between 6 and 23 February
2021, it was dispossessed of the three
properties when the
respondents broke into and occupied it through violence, force or
other cunning ways. The applicant seeks
an order for their
ejectment on the basis that, until this occupation, they were in
peaceful and undisturbed possession of these
vacant properties.
[16] It
is further the applicant’s case that the
mandament van
spolie
can exist alongside the remedy provided for in PIE in
appropriate circumstances. Moreover, that the respondents acquired
possession
of these properties unlawfully, with the result that they
were justified to seek a spoliation order.
[17] On
their version, the previous occupier of unit 2 vacated during October
2020, whilst the previous occupiers
of the Ysterplaat Street and De
Mist Street units vacated towards the end of November 2020.
During December 2020 and January
2021, the applicant was in the
process of effecting repairs to these vacant properties. A
screening process of suitable tenants
who would be placed in the
units afterwards, followed. A security guard and/or house
sitter was then placed on the site to
avoid any damage to or any
unlawful entering of the properties. It was during this time
that the respondents unlawfully occupied
the units.
[18] It
is the applicant’s version that the Ysterplaat Street property
is currently used to store drugs
in or to cell drugs from.
Moreover, that gangsters assisted the respondent to move back into
the property when the applicant
counter-spoliated. The
respondent denies these allegations.
D.
RESPONDENTS’ VERSION
[19] It
is the respondent’s version that, during January 2021, they
acted on information that there were
units at the properties that
have been vacant and unlocked for a period. As a result,
they occupied the properties.
[20] On
their version, the three respondents are unemployed women and their
children, most of them retrenched
due to the COVID 19 pandemic. In
general, it is their version that, prior to the occupation, some of
them (unidentified)
were homeless and some were back dwellers
(unidentified) on their families’ properties. The group
includes minor children,
the elderly and the sick (also
unidentified).
[21]
Details were provided in respect of the respondents in the first and
the third applications. The respondent
in the first application
occupied the unit with her minor child and her sister. At the
time of filing her answering affidavit,
her sister was at their
homestead in the Eastern Cape. The respondent in the third
application occupies the property with
her two minor children.
[22]
According to the respondents, different personal circumstances gave
rise to their occupation. One of
them (unidentified) was once a
tenant of the applicant, and was evicted because she could not afford
the rent. Another, (unidentified)
was left homeless after
leaving an abusive relationship.
[23]
The respondents deny that the applicant was in undisturbed and
peaceful possession as from 4 February 2021.
As proof they
provided a receipt for the purchase of electricity for their
respective units. It is their case that they were
allowed to do
this without any interruption from the security guards or others
living in the complex.
[24]
Furthermore, that PIE is applicable as, on the applicant’s own
version, they are unlawful occupiers,
which brings the provisions of
PIE into play, in particular sec 4 thereof. The application
should therefore have been brought
in terms of sec 4 of PIE, and not
the
mandament of spolie
.
[25] It
is further the respondents’ case that the applicant has not
satisfied each of the requirements set
out in sec 5 of PIE. Moreover,
that the applicant approached the court initially, seeking the wrong
common law remedy, and that
they should not be subjected to costs for
this mistake or choice.
[26] A
number of points in
limine
were raised, but abandoned during
argument.
E.
ISSUES IN DISPUTE
[27]
From the papers before me, it is evident that the following are the
issues in dispute:
a).
Are the respondents in unlawful occupation of the units?
b).
Can the
mandament van spolie
and PIE exist at the same time?
c).
Is sec 5 of PIE applicable in situations like this?
d).
If it is just and equitable for the respondents to be evicted, what
is a reasonable time within
which to order the eviction and
under which circumstances?
F.
RELEVANT LEGAL PRINCIPLES
a)
Mandament van spolie
[28]
The
mandament van spolie
is a common law remedy to restore
possession of property. This is interim relief pending a trial
to determine the rights
of the parties. It is trite that
ownership does not come into play and that an applicant should only
comply with two requirements,
i.e.
i)
undisturbed and peaceful possession of the goods; and
ii)
unlawful deprivation of possession.
b)
Section 5 of PIE
[29]
Sec 5 of PIE reads as follows:
“
5.
Urgent proceedings for eviction.
– (1) Notwithstanding the provisions of section 4, the owner or
person in charge of land may institute urgent proceedings
for the
eviction of an unlawful occupier of that land pending the outcome of
proceedings for a final order, and the court may grant
such an order
if it is satisfied that-
(a)
there is a real and imminent danger of substantial injury or damage
to any person or property
if the unlawful occupier is not forthwith
evicted from the land;
(b)
the likely hardship to the owner or any other affected person if an
order for eviction is not
granted, exceeds the likely hardship to the
unlawful occupier against whom the order is sought, if an order for
eviction is granted;
and
(c)
there is no other effective remedy available.
(2)
Before the hearing of the proceedings contemplated in subsection (1),
the court must give written
and effective notice of the intention of
the owner or person in charge to obtain an order for eviction of the
unlawful occupier
and the municipality in whose area of jurisdiction
the land is situated.
(3)
The notice of proceedings contemplated in subsection (2) must-
(a)
state the proceedings will be instituted in terms of subsection (1)
for an order for the
eviction of the unlawful occupier;
(b)
indicate on what date and at what time the court will hear the
proceedings;
(c)
set out the grounds for the proposed eviction; and
(d)
state that the unlawful occupier is entitled to appear before the
court and defend the case and,
where necessary, has the right to
apply for legal aid.”
G.
DISCUSSION
a).
Are the respondents in unlawful occupation of the units?
[30] It
is common cause that the respondents are in unlawful occupation of
the units. They are therefore unlawful
occupiers as defined in PIE.
The allegations of sexual assault made by Ms Mogojo are serious and
should be reported to the appropriate
law enforcement agency.
However, it does not change the fact that the respondents are
unlawful occupiers.
b).
Can the
mandament van spolie
and PIE exist at the same time?
[31]
Whether the common law remedy of the
mandament
van spolie
can be used to obtain an ejectment order, is a question that has been
discussed in numerous cases as well as various academic writings.
In the unreported judgment
[1]
by
Bozalek, J and Mantame, AJ in this division it was held that the
mandament
is not excluded in all circumstances, and that the trite principle
that each case must be determined on its own facts, should apply.
[32]
In a 2015 article by Z T Boggenpoel
[2]
titled
Questioning
the use of the Mandament van Spolie in Ngqukumba v Minister of Safety
and Security and other
2014 5 SA 112
(CC),
the
matter above, which dealt with the repossession of a mother vehicle,
was discussed. In that matter the Constitutional Court
found that the
mandament
van spolie
would be an available remedy, even though the
Consumer Protection Act
68 of 2008
contains a remedy to repossess property. The question that
should be answered in
casu
is therefore whether the same principle is applicable when dealing
with evictions.
[33]
The conflict between the common law and the remedies provided for in
PIE was at issue in
Cape
Killarney Property Investments (Pty) Ltd v Fusile Mahamba &
Others
[3]
where
it was held that an owner cannot avoid the peremptory provisions of
PIE by simply electing to use the common law remedies
to evict an
occupier.
[34]
Sec 5
is clearly distinguishable from
section 4
in that it does not
list the availability of alternative accommodation as a pre-requisite
for an eviction. Moreover, it does not
mention the local authority as
a necessary party. The procedure available to a local authority is
separately contained in
sec 6.
[35] In
my view, the provisions of PIE are the appropriate remedy, as the
common law remedy of the
mandament van spolie
used for
evictions does not give equal protection to both parties. PIE
envisages the constitutional protection of parties;
the
mandament
van spolie
does not.
Section 5
of PIE, in particular,
provides a constitutionally aligned urgent remedy to replace the
common law remedy of the
mandament van spolie
. It deals
with unlawful land intrusions and it gives an urgent remedy to the
landowner whilst protecting,
inter alia
, the constitutional
right of dignity of the occupier in terms of sec 10 of the
Constitution.
[36] In
addition to the constitutional imperative discussed above, the facts
of this matter do, in my view, also
exclude the applicability of the
mandament van spolie
resulting in the provisions of PIE being
the only applicable remedy. The facts that are relevant in this
matter are,
inter alia
, the special nature of the aim of the
applicant, a not for gain organisation, providing low-cost housing,
which currently is a
dire need in the City of Cape Town. In
addition, the fact that the urgency, which is necessary for the
mandament van spolie
, essentially disappeared when the
application was set down for hearing a few weeks after the
occupation. Moreover,
this consolidated application was
only heard four months after the initial occupation, which gave rise
to the urgency.
c).
Is sec 5 of PIE applicable in situations like this?
[37]
The question is whether sec 5 provides sufficient protection to all
parties. Does it go far enough?
Indeed, it brings land
intrusions, and the remedy to deal with it under constitutional
scrutiny. Moreover, it provides the
urgent relief which is
absent from sec 4 of PIE. In my view, however, it does not go far
enough, as it is silent on what happens
with the occupiers after
being lawfully evicted in terms of sec 5. It is my view that it
is imperative to find a solution
involving all role players.
[38]
In an article titled
Reconsidering
counter-spoliation as a common-law remedy in the eviction context in
view of the single-system-of-law principle
[4]
,
the authors concluded, that sec 5 of PIE provides a sufficient
constitutional replacement for the
mandament
van spolie
.
They further concluded that sec 6 of PIE should be amended to allow
local authorities to similarly be able to perform urgent
evictions
without the obligations to provide alternative accommodation.
[39] I
am in total disagreement with this argument. Surely, the
purpose of judicial and constitutional oversight
over evictions is to
provide more constitutional protection and not less.
[40]
The solution to land intrusions cannot be the increase of the number
of homeless people. Surely, the
solution is to provide
sufficient shelter for more homeless people, within a constitutional
framework.
[41] I
find the omission of a provision to provide or at least to consider
alternative accommodation in sec 5,
regrettable.
d).
If it is just and equitable for the respondents to be evicted, what
is a reasonable time within which
to order the eviction and under
which circumstances?
[42]
The obligation to provide shelter to its citizens lies with
government. They are obliged to provide
shelter to those who
are destitute. Where there is no accommodation available, then
they should provide emergency accommodation.
Granting an
eviction order without any indication of where the respondents will
be sheltered afterwards, is inhumane and undignified.
Should I
grant an eviction order in terms of sec 5 of PIE as it stands, it
would be in the absence of any consideration of alternative
shelter
for these respondents.
[43] It
is so that these respondents did not take this court into its
confidence with where they resided before
illegally moving into these
units. In a sec 4 application, the local authority (third
respondent) would have been ordered
to place this information before
the court. This information is vital in making a determination
that will pass constitutional
muster. I am accordingly inclined to
order such an exercise to be undertaken by the third respondent.
H.
CONCLUSION
[44] In
summary, therefore, I am of the view that the applicant was not
entitled at the outset to use the
mandament van spolie
and
that they were correct in subsequently bringing an application in
terms of sec 5 of PIE. This is so because the issues
of housing
and evictions are sufficiently dealt with within a constitutional
framework in the PIE Act. There is therefore
no need to revert
to a common law remedy, which does not necessarily pass
constitutional muster.
[45] On
consideration of all the facts, I am accordingly satisfied that:
·
There is a real and imminent danger or
damage to property as occurred during the occupation of these units,
e.g. the breaking of
locks and the allegations of drug activity;
·
The likely hardship to the owner who is a
provider of low cost housing, which currently is a dire need in the
city
,
exceeds
the likely hardship that the respondents would suffer if they are
evicted and moved to their previous places of residence;
·
There is no other effective remedy
available. An alternative remedy would have been a spoliation order,
in the event that the occupation
did not occur almost four months
before the application was heard, and if there was no constitutional
provision available. This
is not the case.
[46] In
crafting my remedy in terms of sec 5, I am conscious of the fact that
the relief that I grant should be
practical, implementable, and, most
importantly, take into account the constitutional imperatives
enshrined in our Constitution.
[47] As
a result, I cannot ignore the fact that an eviction in terms of sec 5
will in all probability render the
respondents homeless. I am,
therefore, constitutionally obliged to ensure that this does not
occur.
[48] The state’s
obligation to play some role in finding a solution is trite. As
this court stated in a previous
judgment when dealing with the
possibility of unlawful occupiers being left with nowhere to go after
an eviction:
“
[177]
As stated above, there is no distinction between the state’s
obligation to respect, protect, promote and fulfil the
rights of both
the occupiers and the applicants. That obligation remains the same.
The fact that the state should give effect to
these rights is
undisputed.
…
[179]
… the lack of available housing for the poor will not be
addressed effectively in the short term. The risk
of further
occupations will remain as well as the need for the city to provide
emergency housing to poor and destitute homeless
people. The
migration of poor people to cities is not unique to the City of Cape
Town. This is a global phenomenon. People move
to areas where there
are economic opportunities. Local and Provincial authorities cannot
plan their cities in denial of this reality.”
[5]
I.
ORDER
[49] I
am conscious of the fact that the country is currently in a national
lockdown in terms of the provisions
of the
Disaster Management Act 57
of 2002
, as amended. Moreover, that all evictions should be
dealt with in terms of
section 37
thereof.
[50] In
the circumstances, and bearing the above sentiments in mind, I make
the following order:
50.1
The application for eviction of the respondents is granted to be
effected on Friday, 17 September 2021;
50.2 The
City of Cape Town is ordered to undertake a full investigation, and
to compile a report listing the addresses
where the respondents were
resident prior to their occupation of the units at 28 Ysterplaat
Street, Brooklyn; Erf 125948, commonly
known as 27 De Mist Street,
Brooklyn; and Unit 2, 47 Justin Street, Dennehuis Complex, Brooklyn
on/before Friday, 3 September 2021.
Where an address is not within
the Western Cape Province, an alternative address within the Western
Cape Province should be provided
by the respondents to the City of
Cape Town;
50.3 The
City of Cape Town is to facilitate the respondents’ move from
the units they are currently occupying
to the addresses within the
Western Cape Province listed in the report in 2 above on or before 17
September 2021; and
50.4
Should the respondents not co-operate with the investigation in 50.2
and/or fail to vacate the units by 17 September
2021, the orders in
50.2 and 50.3 above will lapse, placing no further obligation on the
applicants, nor the City of Cape Town,
and the Sheriff is authorised
to affect their removal.
50.5 The
applicant is liable for all costs before 9 April 2021. The
respondents are responsible for the costs thereafter.
FORTUIN, J
Date of
hearing:
9 June 2021
Date of
judgment: 11
August 2021
Counsel
for applicant:
Adv
A Lawrence
Instructed
by:
Toefy
Attorneys
Counsel
for respondents
in
cases 2912 & 4177/21
:
Adv
S Genukile
Instructed
by:
Dlova
Attorneys Inc
[1]
Case
A369/12 in the Western Cape High Court, delivered 13 December 2012.
[2]
Potchefstroom
Electronic Law Journal / Potchefstroomse Elektroniese Regsblad.
[3]
2001(4)
SA 1222 (SCA).
[4]
B
y
G Muller from the University of Pretoria and EJ Marais of the
University of Johannesburg, 2020.
[5]
Case No: 9443/14 -
IA
Fischer & 1 Other v Persons whose identities are unknown to the
applicants and who are attempting or threatening to unlawfully
occupy Erf 150 (remaining) Phillippi.
Case No: 11705/15 –
Manfred Stock & 4 Others v The Persons unlawfully occupying
Erven 145, 152, 156, 418, 3107, Phillippi
& portion of Farm 597,
Cape Rd & 8 others;
Case No: 14422/14 -
Copper Moon Trading 203 (Pty) Ltd v Persons whose identities are to
the applicant unknown and who unlawfully
occupy remainder Erf 149,
Phillippi, Cape Town & 4 others
[2017] ZAWCHC 99.