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[2016] ZAGPJHC 296
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Maruping and Others v MEC: Health, Gauteng Province and Others (38930/2016) [2016] ZAGPJHC 296 (17 November 2016)
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Certain
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REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER: 38930/2016
In
the matter between:
MARUPING,
E K AND OTHERS
First
and Further Applicant
and
MEC:
HEALTH, GAUTENG PROVINCE
First
Respondent
CEO:
HELEN JOSEPH HOSPITAL
Second
Respondent
FACILITY
MANAGER: HELEN JOSEPH HOSPITAL
Third Respondent
JUDGEMENT
NGALWANA
AJ
[1]
In short, the applicants claim to have been spoliated by the
respondents and the respondents claim that the applicants evacuated
the premises voluntarily after lengthy negotiations as the
respondents had since 2014 undertaken to renovate the premises as
they
were, and continue to be, unfit for human habitation.
[2]
The first applicant brings this application on an urgent basis,
saying she does so in her own name and on behalf of 10 others.
Of the 10 she says she represents, only five have deposed to
confirmatory affidavits, while three others who have done so are not
in the list of persons she says she represents.
[3]
The first applicant also says she does not know where the other
persons she claims to represent are currently resident.
All
eight persons who have deposed to confirmatory affidavits do not say
where they are currently resident. The first applicant
does,
however, identify her current residence and it is not at the premises
from which she says the respondents unlawfully evicted
her and
others.
[4]
Because of the fluid nature of the identity of the applicants, it may
be difficult to determine who will be covered by the order
whether in
favour or against the applicants. That is why I asked Mr
Letsebe for the applicants: who will be affected by this
order?
His response – that the order will cover every person adversely
affected by what he terms “
unlawful
eviction”
–
is not legally palatable. An order of court cannot bind
non-parties or benefit others who have either sought no relief
themselves or on whose behalf no relief has been sought.
[5]
The first applicant makes numerous detailed allegations including
5.1
that on 1 October 2016 the third respondent cut off the water supply
to her residence and that when she complained
she was told these were
orders from above;
5.2
that on 2 October 2016 burglar doors were installed and locked, and
the keys were removed from security personnel
at the gate so that the
applicants could not negotiate their movements with the security
personnel;
5.3
that on 3 October 2016 the electricity supply to the property was cut
off following hospital management visit
the previous evening so as to
make the applicants’ continued stay intolerable;
5.4
in all this while rent was still deducted from the first applicant’s
salary on 15
th
of the month, including 15 October 2016.
[6]
To all these factual allegations, the respondents content themselves
with bare denials. The high-water mark of their case
is that
there were no tenants remaining in the building after 30 September
2016. Then they simply deny everything else and
claim there was
no force used in removing anybody. This is hardly the test in
spoliation proceedings.
[7]
Bare denials in these circumstances is unhelpful.
The
Supreme Court of Appeal had the following to say in
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
[1]
:
“
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied
that the party who purports to raise the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be
disputed. There will of course be instances where
a bare denial meets the requirement because there is no other way
open to the
disputing party and nothing more can therefore be
expected of him. But even that may not be sufficient if the fact
averred lies
purely within the knowledge of the averring party and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that the disputing party must
necessarily possess knowledge of them and be able to provide an
answer
(or countervailing evidence) if they be not true or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial
the court will generally have difficulty in finding that
the test is satisfied. I say ‘generally’ because factual
averments seldom stand apart from a broader matrix of circumstances
all of which needs to be borne in mind when arriving at a decision.
A
litigant may not necessarily recognise or understand the nuances of a
bare or general denial as against a real attempt to grapple
with all
relevant factual allegations made by the other party. But when he
signs the answering affidavit, he commits himself to
its contents,
inadequate as they may be, and will only in exceptional circumstances
be permitted to disavow them.”
[8]
The respondents simply do not grapple with all the relevant factual
allegations made by the first applicant. On the qualified
Stellenvale
[2]
rule
in motion proceedings
[3]
I
must accept the first applicant’s version of the facts.
That being so, the first applicant has established both peaceful
possession and wrongful dispossession. The legality of the
possession – on the basis that the applicants are neither
doctors nor nurses nor emergency hospital staff for whom the building
had been intended – is irrelevant. The principle
is
simple: possession must first be restored irrespective of the
parties’ respective rights in respect of the property.
Only thereafter, may those rights be determined in separate
proceedings.
[9]
The purpose of the spoliation relief is to prevent self-help.
On the facts, that is precisely what the respondents have
done.
So the application must succeed, with costs.
[10]
The relief affects only the first applicant and those persons whose
representation is proven. These are:
10.1
PM Mogodi ([6...])
10.2 MA Mamabolo
([6...])
10.3 S Phalane
([5...])
10.4 KC Mabe
([5...])
10.5 TH Setlau
([8...])
10.6 AM Mokono
([7...])
10.7 SW Nkunkuma
([5...])
10.8
MG Khumalo ([5...])
[11]
I am also satisfied that all the requirements for a final interdict
have been satisfied, and that these facts impel me to exercise
my
discretion in favour of granting the interdict.
Order
[12]
In the result,
12.1
the respondents are directed to restore the undisturbed possession to
the first applicant and the other persons listed
in paragraph 10
above of their dwellings at Susanhoff Residence, Helen Joseph
Hospital, Johannesburg, together with the supply
of water and
sanitation, subject to such payment as may lawfully be levied for
such water and sanitation supply;
12.2
the respondents are directed to restore the dwellings back to the
condition in which they were at the time of the applicants’
removal therefrom, provided that such condition is not worse than the
state in which the dwellings are currently;
12.3
the respondents are interdicted from interfering with the applicants’
movements and stay on the property and dwellings
at Susanhoff
Residence;
12.4
the respondents are directed to pay the costs of this application
jointly and severally.
______________________
V Ngalwana
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
For
the applicant:
L Letsebe
Instructed
by:
Lawyers for Human
rights
For
the respondents: M H Mhambi
Instructed
by:
Mdlulwa Nkuhlu Attorneys
Date
of heads:
15 November 2016
Date
of judgment:
17 November 2016
[1]
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) at para
[13]
[2]
Which
derives f
rom
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-G
[3]
See
NDPP
v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) at para
[26]
, 290E-F;
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C