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[2016] ZAGPJHC 46
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Unlawful Occupiers of ERF [2...] [V...] v Kganyago and Another (A5016/2014) [2016] ZAGPJHC 46 (31 March 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A5016/2014
DATE
: 31 MARCH 2016
In
the ex parte application of:
UNLAWFUL
OCCUPIERS OF ERF [2……]
[V……]
..........................................................
Appellant
V
KGANYAGO,
KGADI
JOYCE
..................................................................................
First
Respondent
KHALO,
RAISIBE
SINKE
...........................................................................................................
Second
Respondent
Coram:
SATCHWELL ET WEPENER ET WINDELL JJJ
Heard:
29
MARCH 2016
Delivered:
31
MARCH 2016
JUDGMENT
WEPENER
J:
[1]
This is an appeal against the judgment and order of Mbongwe AJ, with
leave of the Supreme Court of Appeal. The court a quo granted
an
order evicting the appellants from residential immovable property.
The background facts found by the court a quo, and which
are not in
dispute, are the following:
‘
(T)he
respondents acquired the property during 1989 and were issued with a
99 year lease certificate. They then obtained the loan
and offered
this property as security for such loan. A mortgage bond was duly
registered on the property. The respondents defaulted
at some stage
and, despite being called upon to rectify the default, the
respondents failed to do so. The mortgage bond holder
issued a
summons, attached the property and subsequently resold it ultimately
to the applicants’
[2]
In this summary the ‘respondents’ are the appellants in
this matter. I need to add one aspect to the summary and
that is
that, after the default of the appellants, the property was attached
and a sale in execution was held. The subject of the
sale in
execution included the appellants’ right title and interest in
the leasehold in respect of the immovable property.
[3]
Based on these facts, the court concluded that the respondents were
lawful owners of the property and granted and order to evict
the
appellants.
[4]
At a previous hearing of this appeal the attorney appearing for the
appellants withdrew as their representative and the presiding
judge’s
secretary assisted the appellants to attempt to obtain legal
representation. Despite all efforts, the appellants
were again
not represented at the hearing. Due to the lapse of time since the
judgment was given by Mbongwe AJ, this court decided
that the matter
had to be concluded.
[5]
The appellants’ appeal is based on three main grounds. I deal
therewith in turn.
Non-compliance
with Rule 17(4)B)
[6]
The first ground is an alleged non-compliance with Rule 17(4)B) of
the Rules of Court. The appellants argue that the failure
of the
respondents to set out their respective residential or work addresses
in motion proceedings was fatal to the application.
The absence of
these addresses, it was submitted, was relevant as it
‘
.
. . impeded adjudication of the following relevant circumstance:
(i)
Whether applicants were merely use as a
front by Mercantile Bank to mislead the court into believing that
natural people were in
need of assistance by ours courts.
(ii)
Whether the failure to include the details
was designed to obstruct the appellant in his case from recovery of
costs that may be
awarded to the appellant.’
[7]
In my view neither of the issues impeded the adjudication of the
matter. Whether the respondents were a front for a bank would
not
have been disclosed had they given their residential or work
addresses. The question as to whether the appellants were able
to
recover costs is not alive. No costs order was granted in favour of
the appellants nor are they seeking to enforce any costs
order.
[8]
The question of the addresses of the respondents is irrelevant to
this matter. In addition, the appellants’ remedy was
to utilise
the provisions of Rule 30(A) to compel compliance with provisions of
Rule 17, which they failed to do. Had the appellants
utilised the
provisions of Rule 30(A) the allegations now raised could have been
fully canvassed and dealt with. I am of the view
that the appellants
failure to invoke the provisions of Rule 30 at the appropriate time
as they could have done, disentitles them
to do so at a later stage.
Title
relied upon by the appellants for prayer of eviction
[9]
The appellants relied on their own title in support of their right of
occupation of the property. It is alleged that, despite
the ownership
of the respondents, the lease held by the appellants is stronger than
the rights of an owner. Although this may be
true at first blush,
there are several answers to this argument. Firstly, the respondents
are indeed the registered owners of the
property and this is not in
dispute. Secondly, the only issue raised on appeal concerns a
registered leasehold over the property
allegedly held by the
appellants. The leasehold is relied upon by virtue of a document
issued to the appellants by a local authority
in 1989. However, that
leasehold no longer vests in the appellants. The appellants, after
obtaining a leasehold entered into an
agreement of loan with Bifco
(Pty) Limited (who was later taken over by and ceded its rights to
Mercantile Bank) and a bond was
registered over the property. Due to
the appellants’ default under the bond, Mercantile Bank
obtained judgment, had the property
attached and sold it in
execution. This sale in execution included the appellants’
right, title and interest in the leasehold
in respect of the
immovable property which was bought by Mercantile Bank resulting in
Mercantile Bank becoming the registered owner
of the leasehold.
[10]
These facts were set out in an affidavit resisting an application
brought by the appellants in 2011 when they sought to interdict
the
transfer of the property to Mercantile Bank. The appellants failed in
their attempt to interdict the transfer and knew full
well that the
leasehold had been lawfully transferred to Mercantile Bank. The
appellants however, failed to disclose these facts
when they filed
their answering affidavit in this matter and persisted with their
reliance on the leasehold. They elected to simply
rely on the
document which originally afforded them the leasehold without
disclosing the subsequent events that lawfully terminated
that
leasehold.
[11]
Until and unless the sale in execution and subsequent transfer of the
leasehold to Mercantile Bank, which occurred in May 1997,
are set
aside, the leasehold which was transferred to the Mercantile Bank
vested in the latter to deal with as it wished. The respondents
became owners subsequent to Mercantile Bank disposing of the
property.
[12]
The only consideration in this matter is that the appellants were
lawfully divested of the leasehold and their reliance thereon
is
consequently misplaced.
Failure
to ensure the participation of the municipality
[13]
The three further headings in the heads of argument all pertain to
the failure to ensure the participation of the municipality
in the
proceedings in some or other form.
[14]
This ground is raised on the basis that the court a quo ought to have
ensured participation of the municipality to adjudicate
upon whether
suitable alternative accommodation was available for the appellants.
The appellants relied on
Blue
Moonlight Properties 39 (Pty) Limited v Occupiers of Saratoga Avenue
and Another
[1]
for this argument. However, the case before the court a quo did not
identify the appellants as persons who are within the class
of
persons who are referred to as the poorest of the poor or the fact
that the appellants may face the prospect of being homeless.
It is
only in such cases that it is required that the local authority be
joined in proceedings. No such case was made out in this
matter.
[15]
Whether it is necessary to join a party in legal proceedings will
depend on the circumstances and nature of the dispute of
every
specific case.
[2]
On the issue
of joinder, the Constitutional Court found that, generally, a party
must be joined in proceedings if it has a direct
and substantial
interest in any order the court might make or where an order cannot
be effected without prejudicing it.
[3]
[16]
In
Blue
Moonlight
the occupiers were identified and represented and had placed
undisputed information before the court regarding their personal
circumstances and demonstrated that, if evicted, they would be
rendered homeless.
[4]
Blue
Moonlight
further
held that affected individuals, including children, elderly people,
people with disabilities or women headed households,
for whom the
need for housing is particularly great, homelessness would result in
particularly disastrous consequences.
[5]
I
[17]
In
City
of Johannesburg v Changing Tides 74 (Pty) Limited and 97 Others (The
Socio-Economic Rights Institute of South Africa intervening
as amicus
curiae),
[6]
the court was faced with a situation where the occupied building was
unsuitable for human habitation and in a state of disrepair,
with no
toilet or ablution facilities, no water supply or sewage disposal and
illegal electricity connections, inadequate ventilation
and refuse
removal including human waste strewn in open spaces. The building was
high-jacked. The court found that two factors
loomed large in our
case law on eviction, both under the
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act
[7]
(PIE) and otherwise, namely the risk of homelessness and the
availability of alternative land or accommodation, in particular the
constitutional obligations of the arms of government to address the
plight of those who face and emergency situation of homelessness.
[8]
[18]
In
Changing
Tides
the
court found as follows:
[9]
‘
What
is clear and relevant for present purposes is that the State, at all
levels of government, owes constitutional obligations
to those in
need of housing and particularly to those whose needs are of an
emergency character, such as those faced with homelessness
in
consequence of an eviction.’
[19]
The Constitutional Court has on several occasions stressed that in
the present situation in South Africa where housing needs
are so
great and resources are so limited there cannot be an absolute right
to be given accommodation.
[10]
[20]
With regards to s 6(3)(c) of PIE it has been held that there is no
unqualified constitutional duty on local authorities to
ensure that
there cannot be an eviction unless alternative accommodation has been
made available.
[11]
[21]
In some circumstances a reasonable response to potentially homeless
people may be to make permanent housing available and in
others it
may be reasonable to make no housing at all available.
[12]
[22]
In the
Occupiers
of Erf 101, 102, 104 and 112, Shorts Retreat, Pietermaritzburg v
Daisy Dear Investments (Pty) Ltd and Others
[13]
and
Shulana
Court
[14]
the circumstances in which the occupiers were living indicated the
likelihood that at least some of them might be rendered homeless
as a
result of the eviction. Accordingly, it was held that the
municipality should have been engaged in the process before granting
an eviction order.
[15]
[23]
In
Changing
Tides
the court found that there was an ‘overwhelming probability’
that the grant of an eviction order would result in at
least some of
the occupiers being rendered homeless. That allegation was
specifically made and not challenged. It was further found
that once
that was the case, the grant of an order would necessarily result in
the City’s constitutional obligations to such
persons being
engaged, which would necessarily include conditions relating to the
provision of temporary emergency accommodation.
On the strength
thereof, and as the City manifestly had a direct and substantial
interest in the outcome of litigation, it had
to be joined as a
necessary party.
[16]
More
importantly, in
Changing
Tides
[17]
it was found as follows:
‘
Whenever
the circumstance alleged by an application for an eviction order
raise the possibility that the granting of that order
may trigger
constitutional obligations on the part of the local authority to
provide emergency accommodation, the local authority
will be a
necessary party to the litigation and must be joined.’
[18]
[24]
In
Changing
Tides
the
court further stated that it does not mean that the local authority
will need to become embroiled in every case in which an
eviction
order under PIE is sought.
[19]
The question, in the first instance, is whether the circumstances of
the particular case are such as may trigger a local authority’s
constitutional obligations in regard to the provision of emergency
accommodation. Having regard to the aforegoing, it is inevitably
so
that the focus must fall on the best way of identifying the persons
to whom the City owes an obligation and ensuring that their
needs are
catered for. As a final point, the following in
Changing
Tides
[20]
is apposite:
‘
In
considering the grant of an eviction order the court is concerned
with the plight of those who, as a result of poverty and
disadvantage,
are unable to make alternative accommodation
arrangements themselves and require assistance from the local
authority to do so.
It is particularly concerned to ensure, so far as
possible, that those who face homelessness are provided at least with
temporary
emergency accommodation. The ancillary orders attaching to
an eviction order will not affect those who are able to find a roof
for their heads and a place of shelter without assistance, nor those
who for reasons of their own, such as an unwillingness to have
any
involvement with a public authority, will not seek assistance, even
if it means nights spent on the streets.’
[25]
Griffiths J summarised position as follows in
Mtshelakana:
[21]
‘
[9]
As I understand these cases, the function of a court in performing
its judicial oversight is to examine the papers before it
and
determine therefrom whether or not there is an apparent abuse of a
fundamental right or the rights of the respondent or respondents.
In
practically every case which has come before me in this regard it is
generally clear from the papers as to whether or not this
is the
case. On the extreme, there are the cases generally dealt with in the
above-mentioned judgments involving extremely poor,
landless people
who are merely attempting to exercise the rights afforded them by the
Constitution in claiming a small portion
of land and erecting a
modest shelter in order tom protect themselves from the elements. On
the other extreme, there are those
cases where well-heeled tenants
have remained in occupation of rented premises well beyond the rights
accorded them in terms of
the lease without paying rental therefor,
despite being in a position to do so.
[10]
It seems to me that in the former case, and depending on the
circumstances thereof, the court may well decide (in the exercise
of
its judicial oversight) that the local municipality should be joined
as a party to the proceedings on the basis that it may
in those
circumstances have a direct a substantial interest in the proceedings
in that it is obliged to ensure adequate accommodation
for such
persons in dire need of adequate shelter.
[11]
In the latter case, however, it does not appear to me that the
municipality would have a direct and substantial interest in
the
matter in that the respondent concerned would clearly have the means
to be able to source accommodation elsewhere, either on
a rental
basis of by purchasing his or her own property. Thus, in such a case,
there would be no obligation on the court to ensure
that the
municipality is joined as a party.’
[26]
The appellants in this case occupied the property and obtained a loan
under a mortgage bond in order to effect certain extensions
to the
property. They attached proof of payment of a number of amounts to
Bifco in relation to the bond. There are no facts which
would justify
a court to regard the appellants as falling into the class of persons
requiring intervention by the local authority.
[27]
Having regard to the facts of this matter there was no necessity to
join the local authority.
[28]
During argument before us, it became apparent that counsel
representing the respondents was at sea regarding the matter. When
questioned about the quality of his appearance before us, counsel had
to concede that he was indeed of extremely limited, if any,
assistance to the court in his presentation of his clients’
case.
[28]
In the circumstances the appeal is dismissed with costs. The 45 days
ordered by Mbonge AJ runs from the date of this judgement.
The costs
of counsel’s appearance before this court on behalf of the
respondents are disallowed.
W
L WEPENER
JUDGE
OF THE HIGH COURT
I
agree.
K
SATCHWELL
JUDGE
OF THE HIGH COURT
I
agree.
L
WINDELL
JUDGE
OF THE HIGH COURT
Appellants:
In Person
Counsel
for Respondents: Adv Nxumalo
Attorneys
for Respondents: Mbele Attorneys
[1]
2009
(1) SA 470 (W).
[2]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Limited
2012 (2) SA 104
(CC) (
Blue
Moonlight
)
para 45.
[3]
Blue
Moonlight
para 44.
[4]
Para
39.
[5]
Para
92.
[6]
2012
(6) SA 294 (SCA).
[7]
Act
19 0f 1998.
[8]
Para
13.
[9]
Para
14.
[10]
Changing
Tides
supra
para 15.
[11]
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at para 28;
Changing
Tides
para 15.
[12]
Changing
Tides
para 15;
Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v
City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC) para 18.
[13]
[2009]
4 All SA 410 (SCA).
[14]
Occupiers,
Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele
2010 (9) BCLR 911 (SCA).
[15]
Changing
Tides
paras 22-23;
Shorts
Retreat
para 10;
Shulala
Court
paras 14-15.
[16]
Para
37.
[17]
Para
38.
[18]
Also
see
Shorts
Retreat
para 11.
[19]
Para
38.
[20]
Para
47.
[21]
Premier,
Eastern Cape v Mtshelakana
2011
(5) SA 640
(ECM) paras 9-11.