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[2014] ZAGPJHC 339
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Shanike Investment v Ndima and Others (22436/2014) [2014] ZAGPJHC 339 (10 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 22436/2014
DATE:
10 SEPTEMBER 2014
In the matter
between
SHANIKE
INVESTMENT
......................................
Applicant
And
NDIMA S &
OTHERS
........................................
Respondent
JUDGMENT –
LEAVE TO APPEAL Extempore
SPILG J:
1. This is an
application for leave to appeal an order I granted on 21 August 2014.
My recollection is that I would have given
the reasons on the 26th
August 2014. An application for leave to appeal was then brought.
Unfortunately due to administrative
processes this was not brought to
the court’s attention until my sister Weiner J requested the
file because of an urgent
application that was brought before her by
the original respondents. It was then that I became aware of an
application for leave
to appeal the decision.
2. This court also
secured that at least the ex tempore judgment could be transcribed.
Unfortunately there were many typographical
errors. Nonetheless it
was handed down to the parties just before I heard the application
for leave to appeal. It is effectively
a draft, the bulk of which I
went through after receiving it from the transcribers. I marked it
as a draft. The substance will
not change. There may be one or two
other errors and a final version should be ready soon.
I proceed with the
application for leave to appeal.
3. The order I
granted in respect of which leave to appeal is sought comprises a
number of parts.
4. The first part
was that the matter be heard as one of urgency. An earlier court had
in fact ruled that certain of the relief
was urgent and interim
relief was granted.
5. Interim relief
was granted in terms of, what is now, the second order. The second
order relates to interdicting the affected
respondents, being the
first through to eighth respondents but excluding the second and
sixth respondents.
6. Paragraph 2.1 of
the order is of historic moment only because it was to interdict and
restrain the blockading of the entrance
to the complex on 1 August
2014. That date has passed and the order is of academic interest
only. I accordingly do not see any
basis upon which an appeal court
would be seized of this matter, unless there was a costs issue.
7. Moreover the only
issue of concern is whether directly or indirectly the identified
respondents should have been the subject
of the interdict. For
reasons given in the judgment I do not believe that another court
might come to a different conclusion or
as now required that there
are reasonable prospects of success.
In regard to
paragraphs 2.2, 2.3 and 3; they all relate to ensuring that no
unlawful activity occurs. The orders in paragraphs
2.22 and 2.3
include and are directed at the respondents. Again I believe that
enough facts were placed before the court. More
particularly,
although there were denials by each of the respondents, a letter was
written on their behalf by the 7th respondent
in which the very acts
that are now denying were regarded as justified; and in particular
acts of violence because of what was
said to be provocation. So too,
the rent boycott was regarded as justified.
8. The failure to
file papers on time was never explained. In my view it cannot now be
used as a basis on which an appeal can be
founded: The rules are
clear and every opportunity was made available for the respondents in
the main case to at least have set
out the very basics of any other
defences they may have wished to raise to the allegations made.
They did not. They sought to
justify their conduct by reference to
the entitlement to undertake a rent boycott based on a publication
which was produced to
the court. They also justified the basis of
their conduct on a claim that there were issues still extant, but it
was readily conceded
that there were no unresolved issues in relation
to the complex itself.
9. In so far as
paragraph 2.3 is concerned that does not affect the respondents at
all. It simply ensures that nobody would inhibit
any tenant or
official or agent from being prevented from entering and exiting the
property. Once again while that may be of
final effect I do not
believe that another court might come to a different conclusion or
that there are reasonable prospects of
success.
10. Paragraph 4 is
simply the means by which the orders can be enforced if the sheriff
finds that he or she does not have the resources
to ensure
compliance; it is to entitle or enable them to approach either the
JMPD or the police for assistance.
11. It is really
paragraphs 5 and 6 which directly concern the first to sixth
respondents, with the exclusion of the second respondent
(in respect
of whom there appears to have been some form of settlement).
12. Paragraphs 5 and
6 of the order are clear and unambiguous. And section 5(1) of PIE is
equally clear and unambiguous.
The order I made
identifies who is to be evicted and those are the individual tenants
who were identified and who the court found,
on their own say-so,
were implicated, or encouraged or had no difficulty in directly
associating themselves with the acts of violence,
or the threats of
violence.
13. The order is
effectively that the individual respondents are evicted from their
respective units –
“Pending the
outcome of proceedings for a final order evicting each of the said
respondents which proceedings would be instituted
by way of
application under separate case number with leave to apply to court
for a referral to evidence or trial should the matter
not be capable
of being determined by ordinary motion proceedings and that the
first, third, fourth and fifth respondents are required
to vacate by
no later than Sunday 31 August 2014, failing which the sheriff is
directed to secure the evictions by no later than
1 September 2014.”
14. There has been
no suggestion that these paragraphs do not comply with the provisions
of section 5(1). It is argued that while
couched in interim form
they are of final affect. The Act specifically enables this form of
relief to be granted and identifies
it as being of an interim nature
and not of final effect.
This provision is to
be read together with section 4(1) of PIE which provides for
continued habitation by occupiers who fall within
the definition to
carry on occupying despite there being no other lawful basis to do so
and our law has been well developed as
to who does and who does not
qualify. In the present case none of the respondents claim to have
qualified for section 4(1) protection;
quite the contrary.
15. The net effect
is that section 5(1) must be construed by reference to section 4.
Section 4 effectively balances the constitutional
provisions relating
to housing with a landowner’s right to utilise its own
property, whether for itself or for commercial
or other reasons.
16. Section 5(1)
therefore, within the context of PIE as a whole, is intended to
alleviate a situation which might otherwise become
intolerable. It
does so on the basis of affording interim relief, which in its own
terms is not of final effect. It is not an
order having final
effect nor was it intended to be. Section 5(1) can only be
implemented and its purpose can only be fulfilled
if it is
understood, in its own terms, as not subject to appeal. Otherwise the
very purpose of section 5(1) would be undone.
17. An appeal to the
SCA, or thereafter pursuing constitutional points on its specific
application in a case to the Constitutional
Court, would undermine
its very purpose. The provisions of section 5(1) place a very
onerous and heavy responsibility on an applicant
or landowner to
satisfy a court that its provisions have been trigged, and have been
trigged in respect of each individual occupier
who the owner
identifies.
18. I am accordingly
satisfied that paragraphs 5 and 6 are not appealable because they are
not of final effect and section 5(1)
is not intended to be read in
any other way.
19. I therefore hold
that the application for leave to appeal in relation to orders 5 and
6 is not competent in that the orders
are interim in effect.
Paragraphs 1, 2, 3 and 4 of the order are either academic or there is
no reasonable prospect of success
on appeal.
20. Finally it is
noted that the applicants abandoned the costs order in para 7 and
therefore any residual element that might be
the subject matter of an
appeal based on, or which hinges on the costs order, falls away.
21. Accordingly the
application for leave to appeal is refused.
There will be no
order as to costs.
Spilg J
DATES OF
HEARING: 10 September 2014
DATE OF
JUDGMENT 10 September 2014
DATE OF RECEIPT
OF DRAFT:20 October 2014
REVISION:
21 October 2014
LEGAL
REPRESENTATIVES:
FOR APPLICANTS:
Adv M Rip SC
Adv A Pullinger
Vermaak &
Partners Inc
FOR RESPONDENTS:
Adv G Shumba
Kgadima Kekana
Attorneys