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[2016] ZAGPJHC 285
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Madullammoho Housing Association (Pty) Ltd v Mbambo and Others; In re: Madullammoho Housing Association (Pty) Ltd v Mbambo and Others (MEC for Human Settlement and Local Government, Gauteng Province (Interested Party)) (2016/16069) [2016] ZAGPJHC 285 (28 June 2016)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
no:
2016/16069
Reportable
:
No
Of
interest to other judges
:
No
Date
:
28 June 2016
In
the matter between:
MADULLAMMOHO
HOUSING ASSOCIATION (PTY) LTD
(Association
Inc under s 21)
Registration
Number:
2004/012568/08
Applicant
and
MBAMBO,
AYANDA and 56 OTHERS as reflected
1
st
to 57
th
Respondents
on
Annexure “A” to the Notice of Motion
In
re:
MADULLAMMOHO
HOUSING ASSOCIATION (PTY) LTD
(Association
Inc under s 21)
Registration
Number:
2004/012568/08
Applicant
and
MBAMBO,
AYANDA and 56 OTHERS as reflected
1
st
to 57
th
Respondents
on
Annexure “A” to the Notice of Motion
THE
MEC FOR HUMAN SETTLEMENTS &
LOCAL GOVERNMENT, GAUTENG
PROVINCE
Interested
Party
JUDGMENT
KATHREE-SETILOANE
J:
[1]
This is an urgent application brought by Madullammoho Housing
Association (“the applicant”) in terms of s 18(1)
and
18(3) of the Superior Courts Act 10 of 2013 (the Act) for an
interlocutory order that the order of Fisher AJ under case number
2016/16069 is declared to be effective and enforceable pending
finalisation of an application for leave to appeal to the Supreme
Court of Appeal, or if leave is granted pending the finalisation of
that appeal or any subsequent appeal.
[2]
Application for leave to appeal was refused by Fisher AJ on 23 May
2016. The Respondents have now made application to the SCA
for leave
to appeal.
[3]
The applicant is a non-profit company. It is the owner of a social
housing complex known as Jabulani Views (the complex) situated
between Roodepoort and Soweto. The complex comprises 300 units and is
in very good condition. The Respondents occupied the complex
pursuant
to a lease agreement that was subsequently terminated. They lodged a
complaint regarding the cost of services to the Gauteng
Rental
Housing Tribunal (“RHT”). It found in favour of the
Applicant, and ordered the Respondents to make payment to
the
Applicant. The Respondents including approximately 36 others embarked
on a rental boycott.
[4]
As a result of violent conduct on the part of the Respondents and
threats against the Applicant, its officials and tenants in
good
standing including threats to burn down the units and physically harm
the Applicant’s employees, the Applicant sought
an order from
this court in terms of s 5 of the Prevention of Illegal Eviction From
and Unlawful Occupation of Land Act 19 of 1998(the
PIE Act). An order
was granted by Keightley J on 20 April 2016 (the Keightley order)
giving the Respondents until 25 April to vacate
the property.
Inexplicably, the MEC for Human Settlements then intervened and
launched an application on 25 April 2016 seeking
suspension of
execution of the Keightley order. The matter came before Twala AJ who
made an order, on 26 April 2016, suspending
the execution of the
Keightley order until 10 May 2016, and ordering the City of
Johannesburg Metropolitan Municipality (the City):
‘
to
immediately determine which of the fifth to further Respondents …
will be rendered rendered homeless by the eviction order
granted by
[Keightley J] and thereafter provide such homeless persons with
emergency accommodation.’
[5]
On 11 May 2016, the City’s attorney deposed to an affidavit in
which she stated that she only received the order from
the MEC’s
attorneys on 5 May 2016. However on 29 April 2016 and prior to
receipt of the order she requested the MEC’s
attorneys to
provide her with the identity numbers and contact details of the
‘evictees’ for purposes of undertaking
the assessment.
When she did not receive a response, she sent a further email on 2
May 2016 requesting the said information. On
3 May she received a
response indicating that a representative of the Respondents could
assist in providing the requisite information.
On 4 May 2016, she
again requested the information, mentioning in the letter that she
only had until 10 May 2016 within which to
undertake the assessment.
She received the names and identity numbers of some 55 evictees from
the Respondents’ representative
on 6 May 2016. The MEC’s
attorneys requested a meeting with her and this meeting was held on 6
May 2016. By this stage the
MEC’s attorneys also had
instructions to represent the Respondents. The meeting concluded with
the Respondents’ attorney
undertaking to discuss the matter
with its clients. On 10 May 2016, it wrote to the City’s
attorney seeking a follow up on
the options discussed at the meeting
on 6 May 2016 and requesting a progress report. The City’s
attorney advised that she
was considering advising the City to
appoint a mediator to resolve the dispute between the parties in
terms of s 7 of the PIE Act,
and had requested a meeting with it for
this purpose. The City’s attorney forwarded the list of the
evictees, which she only
received at 14h30 on 6 May 2016, to the
responsible officials of the City on 9 May 2016. The Citys’
attorney concluded the
affidavit by stating that in view of the
lateness of the information provided to City, it would require at
least an additional
fourteen days within which to properly undertake
an assessment of the evictees and make a determination pursuant to
the court order
of Twala AJ. Twala AJ’s order had, however,
lapsed by this stage and had no force or effect.
[6]
The day after the lapse of the Twala AJ order, the Applicant
instructed the Sheriff to give effect to the Keightley J order,
which
it duly did on the same day. Once the Sheriff left the complex, the
Respondents overpowered the Applicant’s guards
and forced their
way back into the units, denying the Applicant access to the complex.
On 12 May 2016, the Applicant launched spoliation
proceedings under
case number 2016/16069. The MEC also launched an application seeking
to interdict the Applicant from evicting
the Respondents. This
application was dismissed by Makume J. He, however, postponed the
spoliation application to the urgent court
roll of the next week in
order to enable the Respondents to file answering papers. The matter
came before Fisher AJ who granted
the spoliation relief sought by the
Applicants and ordered the Respondents to vacate the complex by no
later than 23 May 2016 or
show cause why they should not be held in
contempt of the Keightly J order on 24 May 2016. On that day,
the Respondent applied
for leave to appeal the Fisher AJ order and it
was refused on Monday, 23 May 2016.
[7]
The Applicant has made every effort since the refusal of the
application for leave to appeal to execute the spoliation order,
but
the Public Order Police (POP) has not been available to assist the
Sheriff to do so due to public protests and violence in
the lead up
to the local government elections. The POP was available on 14 June
2016 which coincided with a cold snap, and POP
was advised that the
MEC would be upset if they conducted an eviction during the cold
weather. POP then advised that they were
available on 21 June 2016 to
carry out the eviction, but cancelled due to a flair-up of violence
in Pretoria. However, on
17 June 2016, the Respondents applied
to the SCA for leave to appeal Fisher AJ’s order.
[8]
The Applicant has accordingly launched these proceedings in terms of
s 18(3) of the Act to give effect to the spoliation order
pending the
outcome of the application for leave to appeal to the SCA and if
leave is granted, pending the finalisation of that
appeal or any
subsequent appeal against that order. Section 18 of the Act provides:
‘
Suspension
of decision pending appeal.—
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation
and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application
for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order
otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so
order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1)—
(i)
the
court must immediately record its reasons for doing so;
(ii)
the
aggrieved party has an automatic right of appeal to the next highest
court;
(iii)
the
court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv)
such
order will be automatically suspended, pending the outcome of such
appeal.
(5) For the purposes of
subsections (1) and (2), a decision becomes the subject of an
application for leave to appeal or of
an appeal, as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the rules.’
In
Incubeta Holding
(Pty) Ltd and another v Ellis and another
2014 (3) SA 189
(GJ),
Sutherland J described the test for applications of this nature as
follows (at para 16):
‘
It seems to
me that there is indeed a new dimension introduced to the test by the
provisions of s 18. The test is two-fold. The
requirements are:
·
First,
whether or not ‘exceptional circumstances’ exist; and
·
Second,
proof on a balance of probabilities by the applicant of –
-
the
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order; and
-
the
absence of irreparable harm to the respondent/loser, who seeks leave
to appeal.’
In relation to what
constitutes exceptional circumstances, Sutherland J stated as follows
(at paras 17 to 24):
‘
What
constitutes 'exceptional circumstances' has been addressed by Thring
J in
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and Another
2002
(6) SA 150
(C), where a summation of the meaning of the phrase is
given as follows at 156I – 157C:
'What does emerge from an examination
of the authorities, however, seems to me to be the following:
1.
What is ordinarily contemplated by the words ''exceptional
circumstances'' is
something out of the ordinary and of an unusual
nature; something which is excepted in the sense that the general
rule does not
apply to it; something uncommon, rare or different;
''besonder'', ''seldsaam'', ''uitsonderlik'', or ''in hoë mate
ongewoon”.
2.
To be exceptional the circumstances concerned must arise out of, or
be incidental
to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends
upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending on the context in which it is used, the word
''exceptional'' has two
shades of meaning: the primary meaning is
unusual or different; the secondary meaning is markedly unusual or
specially different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from
only under exceptional circumstances, effect will,
generally speaking, best be given to the intention
of the
Legislature by applying a strict rather than a liberal meaning
to the phrase, and by carefully examining any circumstances relied
on
as allegedly being exceptional.'
Significantly,
although it is accepted in that judgment that what is cognisable as
'exceptional circumstances' may be indefinable
and difficult to
articulate, the conclusion that such circumstances exist in a given
case is not a product of a discretion, but
a finding of fact.
…
The context relevant to s 18 of the SC
Act is the set of considerations pertinent to a threshold test to
deviate from a default
position, ie the appeal stays the operation
and execution of the order. The realm is that of procedural laws
whose policy objectives
are to prevent avoidable harm to litigants.
The primary rationale for the default position is that finality must
await the last
court's decision in case the last court decides
differently — the reasonable prospect of such an outcome being
an essential
ingredient of the decision to grant leave in the first
place. Where the pending happening is the application for leave
itself,
the potential outcome in that proceeding, although
conceptually distinct from the position after leave is granted, ought
for policy
reasons to rest on the same footing.
Necessarily, in my
view, exceptionality must be fact-specific. The circumstances which
are or may be 'exceptional' must be derived
from the actual
predicaments in which the given litigants find themselves. I am not
of the view that one can be sure that any true
novelty has been
invented by s 18 by the use of the phrase. Although that phrase may
not have been employed in the judgments, conceptually
the practice as
exemplified by the text of rule 49(11), makes the notion of the
putting into operation an order in the face of
an appeal process a
matter which requires particular ad hoc sanction from a court. It is
expressly recognised, therefore, as a
deviation from the norm, ie an
outcome warranted only 'exceptionally'.
[9]
I turn now to consider whether exceptional circumstances warranting
an order in terms of s 18(3) of the Act are present in this
application. No less than four judges of this Court have found this
matter to be urgent and Keightley J, in particular, has found
the
circumstances to warrant an order in s 5 of the PIE Act.
Notwithstanding the fact that this order was granted more than two
months ago, the Respondents have, with the assistance of the MEC,
abused the processes of this Court in order to frustrate the
Keightley order, and have resorted to self-help by overpowering the
Applicant’s security guards and forcibly re-occupying
units
after execution of the order. Then, on 23 May 2016 after Fisher AJ
had refused the application for leave to appeal the spoliation
order,
and when the Sheriff attempted to execute that order, he was
prevented from doing so. The return of non-servicece states
as
follows in this regard:
‘
That on 23
May 2016 at 15h30 at JABULANI VIEWS FLATS the Sheriff and her
Deputies were prevented from counting the vacant and reoccupied
units. The numbers on the units have been cancelled with paints thus
disabling the Sheriff to carry out the instructions. Furthermore
some
people wearing IFP T- shirts mobilised the tenants and within minutes
there were more than 50 people obstructing the Sheriff.
One was
calling people with a loudspeaker and also instructing the children
to bring the tyres so that they can burn them. The
situation was
getting tense and the Sheriff decided to leave.’
The
conduct of the Respondents as described above, in my view, in itself
constitutes an exceptional circumstance as envisaged in
s 18(2) of
the Act. It is common cause that the Respondents continue not to pay
rentals to the Applicant. The Applicant’s
officials and
employees are denied access to the complex.
[10]
The Applicant is a social housing provider and a not for profit
company. It is reliant on the collection of rentals to fund
its low
cost housing projects, and the maintenance and upkeep of the various
buildings in these projects. In addition, the Social
Housing
Regulatory Authority (SHRA) requires a minimum of a 95% collection
rate in respect of a social housing project. The Applicant’s
failure to meet this collection rate will impact upon its standing
with the SHRA, and its ability to obtain further funding for
other
housing projects. In January, February and March 2015 the arrear
rentals owing to the Applicant in respect of Jabulani Views
(the
complex in question) were within acceptable norms. By April 2015
(subsequent to the lodgement of complaints with the Rental
Housing
Tribunal) they escalated markedly, such that as at February 2016 it
comprised ± 85% of the total arrears owing on
all the
Applicant’s housing projects. The unchallenged evidence of the
Applicant is this:
(a)
It
is unable to bear arrears of this scale and notwithstanding the
rental boycott, it is forced to continue servicing, maintaining,
cleaning and securing the complex in order to prevent the remaining
216 tenants from joining the rental boycott. In order to achieve
this, it has become necessary to cross-subsidise the complex from
other projects, which is placing the Applicant’s entire
portfolio under pressure.
(b)
The
Applicant manages 1797 units, with a further substantial number in
the process of construction. If the rental boycott continues
for much
longer, and the Respondents are seen to be successful (and joined by
other tenants in good standing), then the Jabulani
View project of
the Applicant has the potential of collapsing in its entirety, thus
placing its entire housing portfolio under
threat.
(c)
That
Respondents’ objective to force the Applicant into liquidation
or at the very least to abandon the Jabulani View project
is a very
real concern of the Applicant. This would leave the Respondents (or
their committee) in charge and in a position to collect
rentals from
the occupiers. If this should happen, the project will decline
rapidly as hijackers do not maintain hijacked buildings.
Since a
complex of the size and scale of Jabulani Views requires regular
maintenance in order to remain qualitatively intact, the
Applicant
cannot risk its deterioration.
(d)
The
Respondents have threatened to burn down the project and the unit of
any person who may be evicted. They have threatened that
the
Applicant’s officials are not safe and demanded that the
Applicant and its officials be removed from the property and
be
replaced by government management as the government is viewed as
a weak manager thus making it possible for them to take
control of
the complex and collection of rentals.
(e)
In
addition to their refusal to pay rental, the Respondents are also not
prepared to pay for utilities such as water and electricity.
Tied up
in this matter is the dynamic of the politicisation of these issues
which is high on the agenda of the upcoming local elections.
(f)
The
ability of the Respondents to co-opt or intimidate the tenants in
good standing is of concern to the Applicant. Having failed
to
achieve their aims through the Rental Housing Tribunal, the
Respondents are now resorting to anarchy to achieve their aims of
among other things to take control of the complex.
[11]
As described below, many of the fears referred to above have now come
to pass, but these allegations are met with bare denials
from the
Respondents in their answering affidavit. Significantly, in this
regard, the complex has become a no-go area for the Applicant
and its
officials since the forceful spoliation of the units by Respondents.
On one occasion, the Applicant’s house manager
attempted to
visit the complex but was surrounded by a mob and was forced to flee
for his life. His life is in danger and he refuses
to go anywhere
near the complex. Ten units in the complex have been sublet by some
of the Respondents but since the Applicant is
denied access, it
cannot verify the units which have been sublet or the identities of
the persons to whom they have been sublet.
What is more, is that the
payment levels for June 2016 have dropped substantially. Eighteen
tenants previously in good standing
have either joined the rent
boycott or have declined to pay rental in protest at the dangerous
and unpleasant environment at the
complex. These circumstances, in my
view, constitute ‘exceptional circumstances’ which
warrant an order in terms of
s 18(3) of the Act.
Irreparable
Harm to the Applicant
[12]
The rent boycott has resulted in the Applicant suffering substantial
losses. This, in turn, has forced it to curtail services
in other low
cost accommodation which it owns and rents to tenants. This has
placed the viability of those complexes at risk and
has negatively
impacted the Applicant’s tenants, who are in good standing with
payment of their rentals. There are currently
in excess of 1700
families tenanted in the Applicant’s various projects. It is
likely that this number exceeds 7000 people.
These tenants deserve a
level of security and comfort in accordance with the rental which
they pay to the Applicant each month.
The losses suffered by the
Applicant as a result of the rental boycotts and the associated
losses arising from the payment of legal
fees, sheriff’s fees
and security fees will have a direct impact on the level of the
maintenance, cleaning and security services
which the Applicant is
able to provide to its tenants. The Applicant has already lost more
than R1.5 million in unpaid rentals.
It has already spent
approximately R500, 000.00 in executing the eviction order of
Keightley J on 12 May 2016. It anticipates
spending at least
the same amount on Sheriff’s fees, security costs and legal
fees in executing the order of Fisher AJ. There
is no prospect that
these amounts will be recovered from the Respondents and the harm to
the Applicant is, accordingly, irreparable.
The Applicant states in
its answering affidavit that:
‘
[It] is
literally at its wits end as to how it is going to afford everything
that needs to be done to vindicate its own property.
The Applicant is
not a commercial venture: its funds are very tight and it has to use
them cautiously. There is every chance that
the complex may be lost
in its entirety to the Applicant, which would be a travesty of
justice;
The Applicant is unlikely to survive
the boycott for longer than another month-end cycle without
abandoning the complex. I believe
that this may be the strategy of
the Respondents.’
Needless
to say, the Respondents make a bare denial and puts the Applicant to
the proof thereof. This compels me to the conclusion
that unless the
court makes an order declaring the spoliation order of Fisher AJ to
be effective and enforceable pending finalisation
of the application
for leave to appeal to the SCA, and if leave is granted, pending the
finalisation of that appeal or any subsequent
appeal, the Applicant
will, indeed, suffer irreparable harm.
Irreparable
Harm to the Respondents
[13]
The Respondents allege that they will be rendered homeless if the
order of Fisher AJ is declared executable pending the outcome
of the
application for leave to appeal to the SCA, or if leave to appeal is
granted by the SCA, pending the finalisation of that
appeal or any
subsequent appeal. The deponent to the Respondents answering
affidavit alleges that Jabulani Views is her primary
residence and
she has no other accommodation at present. She says that she resides
there because financially she would not be able
to afford any other
accommodation, and that the Respondents are very poor and they cannot
afford any other accommodation as well.
She concedes that the
accommodation is affordable and enables her to live in decent
conditions with her family and consistently
with the constitutional
standard of human dignity. This notwithstanding, the Respondents
admit that they are engaged in a rental
boycott because pursuant to a
ruling of the Rental Housing Tribunal the Applicant is owing them
money. Although they deny the Applicant’s
allegation that the
Rental Housing Tribunal was made in its favour, the Respondents do
not attach the ruling to demonstrate this.
They nonetheless proceed
to allege that the rental boycott should have been addressed by the
Applicant through the normal procedures
of the PIE Act and not s 5
thereof. Crucially, what is starkly absent from their answering
affidavit is that nowhere do the Respondents
state that they cannot
afford to pay for alternative accommodation. The Applicants allege,
in this regard, that:
‘
The
Respondents however have built up a war chest of substantially more
than R700,000.00 in unpaid rental and services, which they
can easily
utilise to pay for accommodation elsewhere. Because of the careful
measurement the Applicant has to do with respect
to compliance of its
obligations in terms of social housing, all the Respondents have been
very closely assessed as being able
to afford the rental.
Accordingly, and despite the protestations of the Respondents they
will not be homeless upon eviction as
they have the measured ability
to afford rental. The harm, if evicted, will accordingly not be
irreparable and will amount to no
more than convenience.’
[14]
Other than a bare denial, the Respondents fail to deal issuably with
these allegations. They are, in my view, authors of their
plight.
They have collectively elected to withhold their rental by embarking
on a rental boycott. They admit this much. They also
concede that
they are able to afford the payment of rental, yet they simply fail
to demonstrate what they have done with the rental
monies which they
have withheld from the Applicant; what efforts they have made to
secure alternative accommodation; and why they
are unable to afford
such accommodation?
[15]
The Respondent’s conduct is nothing short of contemptuous.
First they failed to comply with a ruling of the Rental Housing
Tribunal to make certain service payments to the Applicant. They,
thereafter, acted in contempt of two court orders. Notwithstanding
the fact that the Keightley order was granted more than two months
ago, the Respondents took the law into their own hands by forcibly
reinvading the units after the Sheriff executed the eviction order.
Then, with the involvement of the MEC, they abused the process
of
this Court to frustrate the Keightley order by amongst other things
persuading Twala AJ to suspend the order in order for the
City to
carry out a ‘homelessness’ assessment of the evictees,
but then dragged their feet in providing the City with
the requested
information to enable it to carrying out the assessment within the
time period provided in that order. Thereafter,
and again with the
assistance of the MEC, they sought to interdict the Applicants from
executing the Keightley J order, but failed.
I accordingly consider
the Respondents’ purported homelessness to be a consequence of
their own conduct. In the event, I
find that the Applicant has
succeeded in proving that the Respondents will not suffer irreparable
harm if the court makes an order
declaring the order of Fisher AJ to
be effective and enforceable pending finalisation of the application
for leave to appeal to
the SCA, and if leave is granted, pending the
finalisation of that appeal or any subsequent appeal.
[16]
In the result, I make the following order:
1.
The
order of Fisher AJ under case number 2016/16069 is declared to be
effective and enforceable pending finalisation of the application
for
leave to appeal to the Supreme Court of Appeal, and if leave is
granted by the Supreme Court of Appeal, pending the finalisation
of
that appeal or any subsequent appeal.
2.
The
Respondents are ordered to pay the costs of this application jointly
and severally, the one paying the other to be absolved.
__________________________________________
F KATHREE-SETILOANE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the applicant:
Advocate C Van der Merwe
Instructed
by:
Vermaak & Partners
For
the first and second respondents: Advocate IS
Mvobi
Instructed
by:
Nompumza Attorneys
Date
of hearing:
24 June 2016
Date
of Judgement:
28 June 2016