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[2018] ZAGPJHC 72
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Teaca Properties (Pty) Ltd and Others v John Banza and Others (2017/36741) [2018] ZAGPJHC 72 (9 February 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2017/36741
In
the matter between
TEACA
PROPERTIES (PTY) LTD
(REGISTRATION
NUMBER: 2006/009429/07)
FIRST
APPLICANT
JIKA
PROPERTIES (PTY) LTD
(REGISTRATION
NUMBER: 2005/035424/07)
SECOND
APPLICANT
MYSO
HOLDINGS (PTY) LTD
(REGISTRATION
NUMBER: 1969/001980/07)
THIRD
APPLICANT
DALEM
INVESTMENTS (PTY) LTD
(REGISTRATION
NUMBER: 2015/081394/07)
FOURTH
APPLICANT
NDF15
INVESTMENT AND TRADING
(REGISTRATION
NUMBER: 2012/162772/07)
FITH
APPLICANT
KENWYN
FLATS (PTY) LTD
(REGISTRATION
MUMBER: 1997/020093/07)
SIXTH
APPLICANT
INDLUPLACE
PROPERTIES LTD
(REGISTRATION
NUMBER: 2013/226082/06
SEVENTH
APPLICANT
G
AND N TARN ENTERPRISES (PTY) LTD
(REGISTRATION
NUMBER: 1069/015283/07)
EIGTH
APPLICANT
ERF
[…] WINDSOR (PTY) LTD
(REGISTRATION
NUMBER: 1995/002627/07)
NINETH
APPLICANT
HELEN
JOY HOLDINGS (PTY) LTD
(REGISTRATION
NUMBER: 1996/015071/07)
TENTH
APPLICANT
EARLS
DEN (PTY) LTD
(REGISTRATION
NUMBER: 2015/082427/07)
ELEVENTH
APPLICANT
KARAVAS
(PTY) LTD
(REGISTRATION
NUMBER: 2012/178347/07)
TWELTH
APPLICANT
and
JOHN BANZA AND 167
OTHERS
FIRST
RESPONDENTS
CITY OF
JOHANNEBURG
SECOND
RESPONDENT
Summary
-
Eviction of 70 occupants who occupied units in terms of lease
agreement – settlement agreement reached between parties
for
rental arrears and made an order of the court – respondents
failed to comply fully with order – urgent matter as
applicants
will not be afforded substantial redress at a hearing in due course –
just and equitable to evict 70 respondents
– they
resorted to self-help through rent boycott – the respondents
conduct is characterised by acts of intimidation
and threats of
violence
J U D G M E N T
KATHREE-SETILOANE
J:
[1]
The applicants are associated companies
that own 33 residential buildings comprising 330 units in the suburb
of Windsor (“the
buildings”). The 1
st
to 104
th
respondents occupy residential units in the buildings as tenants of
the applicants. The applicants seek in this application to
evict 70
of the respondents from their respective units in the building. They
occupied these units in terms of written lease agreements
concluded
with the applicants or their agents.
Background
[2]
During May 2017, certain of the respondents
suddenly, and without explanation, stopped paying rent to the
applicants. The applicants
discovered that their failure to pay rent
was part of a broader rent boycott which was called by the Windsor
Community Recovery
Movement. (“WCRM”).
[3]
The de facto leader of the WCRM was Ms Shumani
Ndou. The stance adopted by the WCRM was that the applicants are not
the legitimate
owners of the buildings; that they had to prove to
them that they were; that they were stealing money from their
tenants;
and that they were not paying over to the municipality any
service charges and rates, presumably received from the tenants.
[4]
Subsequent to its establishment, the WCRM opened
a bank account, in which tenants were encouraged to deposit their
rental payments,
rather than paying them over to the legitimate
owners. In an effort to curb the WCRM’s incitement of a
rent boycott,
the applicants approached this Court on 22 June 2017
for an order interdicting the WCRM’s leaders from, inter alia,
“…inciting,
demanding or publicising a rental boycott in
respect of the Windsor Properties…”
[5]
The interdict did not deter the WCRM from
inciting further rent boycotts, with the number of participants
having increased substantially.
The individuals cited as the 104
th
to 167
th
respondents joined the rent boycott after the service of the
interdict on the WCRM and its’ attorneys.
[6]
In accordance with their Constitutional
obligations, the applicants made numerous attempts to resolve the
rent boycott prior to
proceeding with eviction proceedings against
tenants. The steps taken included engaging with the tenants, seeking
an interdict
against the WCRM and freezing its bank account; making a
formal settlement proposal to the WCRM through its attorneys. These
efforts
were, however, to no avail and the applicants were ultimately
obliged to institute eviction proceedings out of this Court.
[7]
Consequently, the lease agreement in respect of
which the 1
st
to
the 167
th
Respondents occupied units in the buildings were terminated;
culminating in the launch of this application on 28 September 2017.
[8]
The matter ultimately came before this Court on
23 November 2017. At Court, the matter stood down for the parties to
explore the
potential of a settlement agreement. An inspection
in
loco
was conducted of the buildings that the
respondents alleged were overcrowded, unhygienic and rubbish dumps.
[9]
Attending the inspection
in
loco
were the Chief Executive Officer of the
applicants, alongside their attorney and counsel for the respondents,
the Chairman and
other committee members of the WCRM alongside their
attorney and counsel; and City of Johannesburg’s attorney,
Graeme McMaster,
and one of its senior housing officials. In
addition, there were a number of Mafadi officials (agents of the
applicants) and tenants
in attendance.
[10]
These individuals inspected several dwelling
units in a number of the buildings nominated by the respondents. The
respondents alleged
that the buildings were unfit for human
habitation. In the course of inspecting the buildings occupied by the
respondents, it became
evident that their allegations regarding the
condition of the units were untrue as the general condition of the
buildings and the
individual units in particular; especially the
kitchens and bathrooms were in very good condition.
[11]
The WCRM were also concerned about a number of
slum buildings in Windsor. Although the applicants accept that these
buildings exist
in Windsor, they make it clear that they do not own
to them. The WCRM was also concerned about certain structural and
service delivery
issues such as refuse, which the applicants point
out, are not within their control. The applicants, nevertheless,
agreed to collaborate
with their tenants and others in the broader
community towards the uplifting the entire suburb. This included
making representations
to the City Council.
[12]
The inspection dispelled the respondents’
allegations of the units being in poor condition. On the advice
of their legal
representatives, the respondents sought to enter into
negotiations with the applicants to settle the pending eviction
application.
Notably, this course of conduct was proposed by
the respondents’ legal representative.
The
settlement agreement
[13]
A settlement agreement was ultimately concluded between the
applicants and respondents, each duly represented. This agreement
of
settlement related to 71 of the respondents cited in the application.
Their names are listed in annexure SA-2 of the order of
24 November
2017. By consent between the parties, the settlement agreement was
made an order of court on 24 November 2017 (‘the
Consent
Order”).
[14]
The Consent Order provided as follows:
‘
1. Subject to 2 Below, the
Applicants will fulfil their obligations in terms of the
refurbishment and maintenance schedule annexed
here to “X”,
which refurbishment and maintenance will commence on 7 December 2017.
2. The Respondents will notify the
Applicants through their managing agents of any urgent refurbishment
or maintenance that needs
to be included on the list.
3. The Respondents shall pay their
“rental” to the applicants in the amount reflected under
the heading “Rental
on schedule “Y” annexed hereto,
on or before 1 December 2017, and on or before the first day of each
subsequent month.
4. The Respondents, in addition to
their obligations recorded in 3 above, will repay the arear rental to
the Applicants in the amount
reflected under “arrears” in
schedule “Y” annexed hereto, in the amount of R500.00
(Five Hundred Rand)
per month.
5. Should the Respondents fulfil their
obligations in terms of prayer 3 and above in full for a period of 3
(Three) months, then
the parties shall enter into a fresh lease
agreement, the name of the lessee to be advised by the Respondent’s
attorney.
6. Until the leases entered into in
terms of 5 above are concluded, the parties agree that the leases are
not novated.
7. The Respondents agree that, should
they fail to make payment as agreed herein, then the Applicants shall
be entitled to issue
a warrant of execution in the amount reflected
under the heading “arrears” on annexure “Y”
hereto, less
any arrears payments that have been made.
8. That once the parties have entered
into fresh leases as recorded above, the parties shall simultaneously
enter into acknowledgement
of debt in respect of any arrears as at
the date of the lease in the repayment of R500.00 (Five Hundred
Rand).
9. The Applicants and the Respondents
will collaborate with each other over the course of the next 12
(Twelve) months in order to
reduce any overcrowding that may be
taking place as prohibited by the City Council By-Laws.
10. To compensate the Respondents in
this regard there shall be no Rental increase for the 2018 calendar
year.
11. The Respondents agree to withdraw
their complaints made to the Rental Housing Tribunal.
12. The Respondents agree that, should
any issues of a landlord and tenant nature not be dealt to their
satisfaction in the future,
they shall approach the Gauteng Rental
Housing Tribunal for adjudication without withholding rent.
13. The parties agree that this matter
is urgent, that the matter shall be removed from the roll with the
issue of costs reserved,
and that should it become necessary, the
matter mat be re-enrolled on 1 (One) week’s notice on the same
papers, duly supplemented
as necessary.’
[15]
Notwithstanding that the settlement agreement was made an order of
Court, all but one of the 71 respondents who agreed to the
terms of
the order, have refused to comply fully therewith.
[16]
The non-compliance prompted the applicants’ to file a
supplementary affidavit in accordance with clause 13 of the Consent
Order, and set the matter down for hearing in the urgent court again.
The applicants seek to enforce the Consent Order which contemplates
approaching the court for an order of eviction in the event of the
respondents’ breach.
[17]
The Applicants seek relief in terms of Section 4(6) of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land
Act, 1998
(“PIE”).
[1]
Annexure
SA-2 to the applicants’ supplementary affidavit lists the names
of the individual tenants against whom relief is
sought. By
agreement, the applicants recorded these names as provided by the
respondents’ attorney of record at the time.
Annexure SA-2
identifies the names of the respondents reflected in the schedule
annexed to the order of 24 November, the unit number
occupied; the
name of the owner of the individual unit occupied by each of the
respondents; the amount owing in terms of the Court
Order by each
respondent for the months of December 2017 and January 2018, the
total amount paid by each respondent subsequent
to 24 November 2017,
and the arrears of the individual respondents in terms of the Consent
Order.
[2]
Urgency
[18]
I found this matter to be urgent as the applicants will not be
afforded substantial redress at a hearing in due course. The
applicants contended that no hearing in due course will undo the harm
that the respondents’ rent boycott has done to its
business,
and the ongoing harm to its law abiding tenants and to the Rule of
Law. From November 2017 to the time this application
came before the
Court, the Applicants’ losses as a result of the rent boycott
has increased by over R1 000 000.
[19]
The interests of the applicants that require protecting (in terms of
section 34 of the Constitution
[3]
)
are, therefore, not only commercial
[4]
but also relate to the safety and well-being of all its other tenants
in the buildings --
who
have a right to live in the building free of threats of violence and
intimidation. I accordingly agreed that no hearing in due
course will
redress the unlawful conduct of the respondents whose resort to
self-help by means of a protracted and on-going rent
boycott in
defiance of the Consent Order is inimical to the constitutional
cornerstone of the Rule of Law.
Defences
Raised By the respondents
[20]
The occupiers’ defence to their eviction prior to the Consent
Order was that upon their grievances being addressed by
the
applicants, they will honour their obligations arising from the lease
agreements. They undertook to pay their arrears rentals
when their
grievances had been resolved because, so they alleged, the rent was
being paid into the WRCM’s banking account.
[21]
The applicants contend that the defences raised are an attempt to
perpetuate the unlawful conduct that is taking place by delaying
the
hearing of this matter through an
ex post
facto
attempt at justification, for conduct
that is undisputed and amounts to self-help.
[22]
The respondents raise essentially the same defence for their failure
to comply fully with the Consent Order as they did prior
thereto.
They also peg their defence on the allegation that the applicants are
not the owners of the buildings and accordingly
have
no
locus standi
in this application.
[23]
This issue had been put to rest prior to the first hearing of this
his application in November 2017, when the City of Johannesburg
gave
the WCRM an undertaking to conduct a verification audit of all of the
properties listed in the annexure to the notice of motion
in this
application. Mr McMaster, the City’s legal representative
conducted the verification audit on 19 October 2017, the
audit
confirmed that the buildings which are the subject of this
application were owned by the applicants. The WRCM, and
in
particular Ms Ndou, was informed of this in a letter from Mr McMaster
on the same day.
[24]
This notwithstanding, it is impermissible, by virtue of the
Consent Order, for the respondents to rely on the defences
relating to the ownership and condition of the buildings which they
now raise in answer to the applicants’ supplementary
affidavit.
The necessary implication of the Consent Order is that all the
respondents’ defences are waived or abandoned.
In law, the
conclusion of the settlement agreement/Consent Order is a compromise
of those defences. Therefore, at this stage of
the proceedings, what
the respondents are required to demonstrate is why they do not have
to perform in terms of the Consent Order
to establish a defence. They
have, however, failed to do so.
[25]
The case advanced by the respondents is an entitlement to resort to
self-help by, first, engaging in the rent boycott and,
thereafter
inciting others to join in that boycott. This was done through
threats of violence and acts of intimidation.
[26]
The ostensible basis for this “right” to self -help is
pegged to a whole series of allegations that the buildings
are in a
poor state and that the applicants have not met their obligations to
remedy this. As I understand these allegations, they
are nothing more
than a series of conclusions, presented without any primary facts.
There is not a single fact or evidence advanced
as to the alleged
poor state of any of the buildings. On the contrary, the inspection
in loco
conducted by
all the parties cited in this matter dispelled the respondents’
contentions. In terms of the Consent Order, the
respondents had a
duty to notify the applicants of any refurbishment or maintenance
that needs to be included on the list referred
to in paragraph 1 of
the order. To the extent that the respondents allege that the
applicants have not met their obligations under
paragraph 1 of the
Consent Order, the onus to bring this to the attention of the
applicants was on the respondents. They have,
however, failed to do
this.
[27]
The Respondents offer no further justification, nor do they suggest
any reason as to why the Consent Order may not be complied
with.
Conversely, during argument counsel for the respondents conceded that
the Consent Order is binding on all parties and that
to the extent
that the Court may deem it just and equitable to do grant an order of
eviction against the 15 non-complying respondents,
but not against
the remainder who have complied partially. The difficulty I have with
separating out these 15 Respondents from
the remaining partially
complying respondents is that they provide me with no explanation for
why they were justified in not complying
fully with the Consent
Order.
[28]
The Consent Order, however, renders the respondents’ obligation
to pay rent
res
judicata.
It furthermore disposes of the defences raised to not paying rent and
to the right to insist on proceeding before the Housing and
Rent
Tribunal on the complaints raised on the answer to the applicants’
founding affidavit in this application. Their defences
were
compromised and the position that the respondents themselves is akin
to
res
judicata
.
[5]
[29]
A settlement agreement is an agreement of compromise. In
Van
Zyl v Nieman
[6]
,
the
learned Judge in the Appellate Division, opined:
“
it is clear that an agreement
of compromise has the same effect as
res judicata
and
consequently excludes an action on the original cause of action
except where the compromise agreement expressly or by clear
implication provides that in the event of non-compliance with the
provisions thereof a party may fall back upon his original
right of action.”
This
is precisely what clause 13 of the Consent Order, which is a
conditional compromise, entitles the applicants to do in the event
of
non-compliance with its terms. The respondents, on the other hand,
did not reserve their rights to raise their original defences
again.
[30]
Accordingly, the terms of the Consent Order in this matter render it
common cause that:
30.1 The respondents had
leases with the applicants, which leases were terminated. The
respondents are estopped from disputing the
applicants’
ownership of the properties or the Cancellation of the leases any
longer; and
30.2
The respondents’ referral of “disputes”
to the Rental Housing Tribunal were spurious as indicated by the
occupiers,
cannot contend for poorly maintained buildings or any
other right for the non-payment of rent.
Is
it just and equitable to evict the 70 respondents?
[31]
In the circumstances, it is only necessary to determine whether it is
just and equitable to evict the 70 respondents. In determination
of
this issue, I must have regard to all the legally relevant
circumstances in the parties’ affidavits.
[32]
Section 4(6) of PIE provides:
“
if an unlawful occupier has
occupied the land in question for less than six months at the time
when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all the
relevant circumstances, including the
rights and needs of the elderly, children, disabled persons and
households headed by women.”
[33]
The legally relevant circumstance that I am obliged to consider
[7]
include the
following:
a)
The
occupiers have organised themselves into a militant body that has
seen it fit to take the law into their own hands. This sort
of
conduct is repugnant to Constitutional values and the rule of law
[8]
;
b)
Pursuant to resorting to self-help through a rent
boycott, the respondents have set about to deprive the applicants of
a revenue
stream. They ostensibly did so to coerce the applicants
into maintaining the properties, while being unable to identify any
failure
on the applicants’ part in this regard. The evidence
shows, to the contrary, that the buildings are well maintained. There
is accordingly no basis in fact or in law for the respondents to
withhold their performance in terms of the Consent Order.
c)
The Occupiers are all, by their admission, people
who are able to pay rent and who would have paid rent but for the
WRCM’s
conduct. This is obvious from the fact that they had,
without demur, done so for many years prior to May 2017. The question
of
homelessness does not therefore arise, and there is no role for
the City Council to play in providing them with temporary shelter.
d)
The half-hearted submission on behalf of the
respondents, during argument, that they will be rendered homeless if
evicted, cannot
trigger the City Council’s obligation to
provide temporary shelter or alternative housing. As pointed out by
the City in
its answering affidavit, its obligations are only
triggered if there is reason for it to assist people who, for reasons
beyond
their control, find themselves in an emergency housing
situation that they are unable to address.
e)
As
put by the City in answer: “The, to date, muted plight of the
[respondents] becoming homeless is … a consequence
of their
own conduct.” The respondents have furthermore failed to make
out a case of homelessness or that there are women,
children, the
elderly or disabled, whose rights to shelter would be violated if
evicted. There is, in this regard, no shortage
of immediately
available accommodation for the occupiers.
f)
The respondents’ conduct is profoundly
characterised by acts of intimidation and threats of violence. This,
too, has no place
in a society based on the Constitutional values of
the Rule of law and Supremacy of the Constitution.
g)
When, at the inspection, the respondents’
defence to this application was demonstrated to be palpably
dishonest, they concluded
a settlement agreement with the applicants
and consented to it being made an order of court;
h)
The Occupiers then reneged on the Consent Order.
They did this without any attempt to have it set aside.
[34]
Accordingly, and in determining whether or not it is just and
equitable to evict the respondents, the Court is faced with enforcing
their compliance with a consent order and the Rule of Law or a
situation where there are simply no consequences to resorting to
self-help and wilful disregard of court orders.
[35]
The Constitutional Court has on more than one occasion held that the
resort to self-help cannot be sanctioned. By aligning
themselves with
the illegal conduct of the WCRM, in the face of an order
interdicting it and its leaders from encouraging
tenants to
participate in a further rent boycott, and an order (granted by
consent) to meet their rental obligations to the applicants,
the
respondents have simply taken the law into their own hands.
[36]
In the circumstances, I consider it just and equitable to evict the
70 respondents listed in Annexure X hereto from the applicants’
buildings in Windsor (described in the order below).
[37]
In the circumstances, I consider it just and equitable to evict the
70 respondents listed in Annexure X hereto from the applicant’s
buildings in Windsor.
Order
[38]
I accordingly make the following order:-
1
The
respondents listed in Annexure “X” hereto are evicted
from the Windsor properties described as and situated at:
UNIT […]
[…] P. AVENUE
WINDSOR EAST,
JOHANNESBUIRG
& OTHER UNITS LISTED
IN ANNEXURE “X”
(hereinafter referred to
as “the Windsor properties”)
2
The
respondents listed in Annexure “X” above are ordered to
vacate the property on or before 9 April 2018.
3
In
the event that the respondents listed in Annexure “X” do
not vacate the Property on or before 9 April 2018, the Sheriff
of the
Court or his lawfully appointed deputy is authorised and directed to
evict the Respondents from the property.
4
The
Respondents listed in Annexure “X” are directed to pay
the costs of this application.
________________________________
F
KATHREE-SETILOANE
JUDGE
OF THE GAUTENG LOCAL DIVISION OF THE HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
Counsel
for the Plaintiffs:
Mr. Pullinger
Instructed
by:
Vermaak Attorneys
Counsel
for the Defendants:
Mr Kunene
Instructed
by:
Manamela Attorneys
Date
of Judgement:
09 February 2018
Date
of hearing:
02 February 2018
[1]
“if an unlawful occupier has occupied the land in question for
less than six months at the time when the proceedings are
initiated,
a court may grant an order for eviction if it is of the opinion that
it is just and equitable to do so, after considering
all the
relevant circumstances, including the rights and needs of the
elderly, children, disabled persons and households headed
by women.”
[2]
Annexure SA-3 is a schedule reflecting the amounts due and the
payments received from the 71 respondents. As indicated, only
one
respondent has paid in full and complied with his obligations in
full. 12 have paid in excess of R10 000,00 but failed to
comply
fully with their obligations in terms of the consent order. 43
respondents have paid amounts between R2 000,00 and
R10 000,00
and yet have failed to comply with their obligations in terms of the
Consent Order. 15 respondents have paid
nothing at all.
[3]
Section 34 of the Constitution provides:
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.
[4]
In
Twentieth Century Fox
Film Corporation and another v Anthony Black Films
(Pty) Ltd
1982 (3) SA 582
(W) it was held at 586 G that:
“
In
my opinion the urgency of commercial interests may justify the
invocation of Uniform Rule of Court no less than any other
interests. Each case must depend upon its own circumstances. For
purposes of deciding upon the urgency of this matter I assumed,
as I
have to do, that the applicant’s case was a good one and that
the respondent was unlawfully infringing the applicant’s
copyright in the films in question.”
[5]
Nager v Nagar
1982 (2) SA 263
(Z) at 267C
[6]
1964 (4 ) SA 661 (A) at 669-670
[7]
Ndlovu v Ngcobo; Bekker and
another v Jika
2003 (1)
113 (SCA) at [19]
[8]
Ngqykumba v Minister of
Safety and Security and Others
2014 (5) SA 112
(CC) at [21]