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[2018] ZAGPJHC 456
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SWDC Holdings (Pty) Limited v Buthelezi and Others (16494/2018) [2018] ZAGPJHC 456 (22 May 2018)
(Digital
Audio Recording Transcriptions)/aj
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO
: 16494-2018
DATE
:
2018-05-11
In the
matter between
SWDC
HOLDINGS (PTY) LIMITED
Applicant
and
BUTHELEZI
NICHOLAS SIBU & OTHERS
Respondent
J U D G M E N T
Headnote
Eviction
of unlawful occupiers
PIE
formalities complied with - eviction had taken place.
Application
brought to restore the occupiers pending a rescision application
based essentially on the noncompliance with the dictates
set out in
the decision in
Berea Road (CC
) concerning the personal
circumstances of the occupiers – held that prospects of success
existed and restoration of occupation
granted on conditions
The
conditions were that:
(i)
the those returning to the premises enter into lease
agreements at a fixed rental for the interim period and
(ii)
those who refused to do so were to apply forthwith to
the COJ for emergency accommodation
COJ
was ordered to process applications for assistance forthwith
In
addition, COJ was interdicted from taking steps against the owner for
arrear rates and services in the interim pending the rescision
application being decided, and
Respondent/owner
ordered to pay whatever it actually received for services to COJ and
stand ready to account in this regard to the
COJ
SUTHERLAND
J:
[1]
The Applicant in this matter is the owner of properties registered as
Erven 952, 953, 954 and 955 Marshalltown, Gauteng and
has brought an
urgent Application in terms of Section 5 of the PIE Act. The
Respondents are 4 of about 80 people who occupy
the properties.
The occupation is alleged to be unlawful and that allegation is
uncontested.
[2]
The Application was brought for relief set out in Parts A, B and C.
Part A has already been dealt with in this Court,
and I shall return
to deal with that fact in due course.
[3]
The relief sought now, ie Part B, reads as follows:
‘
3.1. That the matter be treated
by way of urgency;
3.2. That pending eviction
proceedings instituted by the Applicant in terms of Section 4 of the
PIE Act, the Respondents
[as listed today] are evicted in terms of
Section 5 of the said Act from the property, [which is described as I
have set out]
3.3. The Respondents are
ordered and directed to vacate the property within 24 hours of the
date of any order of this court;
3.4. That in the event that the
Respondents fail to vacate the property as directed, then the Sheriff
of the Court or his/her
lawfully appointed deputy may give effect to
the said order, by removing the Respondents from the property
together with their
goods and possessions;
3.5. The Sheriff of the court is
authorised and directed to approach the South African Police Service
or the Johannesburg
Municipal Police Department for any assistance he
may require in the circumstances;
3.6. That the Respondents are
interdicted and restrained from:
3.6.1. Collecting
money from any of the residential or commercial occupiers of the
property;
3.6.2. Intimidating,
threatening, assaulting or approaching within ten metres of any of
the Applicant’s
offices, employees or agents.
3.7. That the Respondents are
ordered and directed to pay the costs of this Application, including
the costs of Part A;
3.8. Further and/or alternative
relief.’
[4]
The thrust of the justification for the Application is that the
Respondents are criminals who extort money as rent from other
occupiers at the point of a gun, threaten, harass and assault the
occupants and the employees of the Applicant whom it sends to
attempt
to attend to the maintenance of the property. The applicant has, in
short, alleged that the building has been hijacked
and that the 4
Respondents are holding the residents in thrall, and prevent the
Applicant from effective access to the building.
Thus, on such
grounds, it is alleged they should be removed.
[5]
I deal with certain preliminary matters: The case for the
Applicant as regards prayer 6 [as I have read it] is superfluous,
because on 2
nd
May 2018 Mashile J granted the same relief,
in substance, when Pat A was brought before the Court. I need
not consider it
further.
[6]
The prayers which I have quoted in paragraphs 3, 4 and 5 of the
Notice of Motion which relate to the physical expulsion of the
Respondents is the proper focus of these proceedings.
[7]
The next aspect to address is the identification of the
Respondents. The 4 Respondents were described as
follows:
‘
1
st
Respondent as
Nicholas Sibu Buthelezi;
2
nd
Respondent as Simo
Duze;
3
rd
Respondent a person
known as a Vuyo; and
4
th
Respondent the building
caretaker known as Buthelezi.‘
[8]
The person described as the 3
rd
Respondent is not further
known other than as, as I have cited, ie, a person known as ‘Vuyo’.
Independently of
other considerations, it is impractical and futile
to issue an order against a person who cannot be properly
distinguished from
others. For that reason, only the
circumstances alleged to prevail in respect of the 1
st
,
2
nd
and 4
th
Respondents shall be addressed by
me in this application.
[9]
The matter was set down on 7
th
May 2018, and to
accommodate the filing of an answering affidavit, and a replying
affidavit, the hearing stood down until 10
th
May 2018.
At the hearing a supplementary replying affidavit from the Applicant
was, without opposition, handed in.
[10]
This supplementary affidavit addressed a letter to the applicant from
the South African Police Service confirming the arrest
and detention
of the 1
st
Respondent on a charge, it must be inferred, of
extorting so-called rent from the occupiers of the building. The
letter also mentions
that the South African Police Service have
seized a rent book, supposedly corroborating that practice of
collecting rent from the
inhabitants. In addition, it says that
warrants of arrest have been issued for the other 3 Respondents.
Ostensibly,
they are at large at his time, ie, while the proceedings
have been prosecuted. Notwithstanding that, the deponent to the
answering
affidavit is the 2
nd
Respondent.
[11]
I deal with the personal circumstances of the Respondents as they
appear from the papers. From the affidavits filed,
the personal
circumstances of the Respondents are thinly set out. The
answering affidavit, filed by their attorney, is deposed
to by the
2
nd
Respondent who claims to be authorised to depose on
behalf of all the Respondents. As regards the 3
rd
Respondent Vuyo, he identifies a youth who the Applicant readily says
in reply, is not the Vuyo of whom it spoke. As to the
1
st
Respondent who is at present in police custody, the 2
nd
Respondent has obtained his fiancé to authorise him to say
that she and their child live with the 1
st
Respondent in
the building. Of himself, the 2
nd
Respondent says he
cohabits with a wife and six children. Of the 4
th
Respondent Buthelezi, alleged to be a caretaker, he says nothing of
his personal circumstances other than to include him with himself
and
the 1
st
Respondent as unemployed and eking out a living as
Panelbeaters.
[12]
Self-evidently, these allegations about, at once, being unemployed
and earning money as Panelbeaters are mutually destructive,
and I
conclude that the three of them do indeed earn money in an unstated
sum, but probably this revenue stream is erratic. As
alluded to
earlier, the 2
nd
and 4
th
Respondents are liable
to be arrested.
[13]
I deal with the case for a Section 5 Eviction. The principle,
the Section under which evictions of law for occupiers
takes place is
Section 4 of the PIE Act. Section 5 is a specific urgent
remedy. Its provisions in so far relevant in
this matter are as
follows:
‘
(1)
Notwithstanding the provisions of section 4, the owner or
person in charge of land may institute urgent proceedings for
the
eviction of an unlawful occupier of that land pending the
outcome of proceedings for a final order, and the court may
grant
such an order if it is satisfied that—
(a)
there
is a real and imminent danger of substantial injury or damage to any
person or property if the unlawful occupier is not forthwith
evicted
from the land;
(b)
the
likely hardship to the owner or any other affected person if an order
for eviction is not granted, exceeds the likely hardship
to the
unlawful occupier against whom the order is sought, if an order for
eviction is granted; and
(c)
there
is no other effective remedy available.’
[14]
Self-evidently all three elements of Section 5(1) must be
demonstrated. The ramifications of Section 5 applications have
been addressed by this court. (see: Spilg J in
Shanike
Investments No. 85 (Pty) Ltd & Another vs Ndima & Others
2015 (2) SA 610
(W) paragraphs 17 – 21, 45 – 61, and 102
– 110) The Section 5 remedy is tantamount to an interim
interdict
within its own strictly defined criteria.
[15]
The Applicants case, as relevant to the selection of these
Respondents of the 80 inhabitants for physical removal, rests on
two
related bases.
[16]
First, it is alleged that they present a danger to the other
residents because they are gangsters who extort money;
secondly, by their presence, they prevent the Applicant accessing the
building, which is dilapidated and abused, from carrying out
such
maintenance that is necessary to make the building safe and
habitable.
[17]
The Respondents case in response is essentially as follows:
1.
First a denial of any extortion or other violence, and further
denials that in
any way the Applicant’s employees are inhibited
from access;
2.
Secondly, an assertion that since they began to occupy this building
from about
2003 until 2018, when the Applicant became its owner, the
building has been in a constant state of disrepair.
[18]
It is admitted by the respondents that the two-storey building has
been divided up into portions and that shacks had been erected
on the
flat room. It is claimed that 80 people occupy the building.
Electricity is illegally connected. As regards
ablutions, which
these 80 people somehow have to share, the deponent denies the
allegation by the Applicant that only one toilet
is functioning, and
offers in response the evasive riposte that the place has six
bathrooms and, rhetorically, asks what happened
to the other five
toilets? No positive assertion that the other five toilets are
working is actually made.
[19]
Developing the defence relied on, it is said that, given the many
years of ill repair there can be no urgency at this time
to repair
the building at this moment.
[20]
In the Replying Affidavit, upon being challenged that it was false to
accuse the Respondents of intimidation and extortion,
the Applicant
revealed the identity of two persons from whom the information was
gleaned to make the allegations in the Founding
Affidavit and
attached corroborating affidavits setting out details of the personal
dealings by each of them with one or other
of the Respondents.
[21]
The Respondents, for that reason, have had no chance to address these
individualised allegations. No objection was raised
to the
filing of the Affidavits, but I must necessarily be cautious in
giving weight thereto in these circumstances.
[22]
There is in respect of the allegations of violence a dispute of fact,
and that dispute affects both legs of the Applicant’s
case.
The approach which I am required to adopt in dealing with the
situation is that which is set out in the well known
decision of
Webster v Mitchell
1948 (1) SA 1186
(W). The
relevant extract from the headnote reads as follows:
‘
In
an application for a temporary interdict, the Applicant’s right
need not be shown by a balance of probabilities.
It I
sufficient if such right is
prima
facie
established,
though open to some doubt.
The
proper manner is to take the facts as set out by the Applicant,
together with any facts set out by the Respondent, which the
Applicant cannot dispute, and to consider whether having regard to
the inherent probabilities, the Applicant could on those facts
obtain
final relief at a trial.
The
facts set up in contradiction by the Respondent should then be
considered, and if serious doubt is thrown upon the case of the
Applicant, he could not succeed. In considering the harm
involved in the grant or refusal of a temporary interdict, where
a
clear right to relief is not shown, the court acts on the balance of
convenience.
If
though there is prejudice to the Respondent, and that prejudice is
less than that of the Applicant, the interdict will be granted,
subject if possible, to conditions which will protect the
Respondent.‘
[23]
As explained in regard to the citation of Section 5(1) of the PIE
Act, that section was modelled on the norms which are captured
in
Webster v Mitchell
. Accordingly, what I am
required to do in this matter is weigh up the probabilities of the
two versions.
[24]
The Respondents, save for the 3
rd
Respondents, are
reasonably identified by the two persons whose corroborating
affidavits are attached. The allegations in
the founding papers
I can conclude, were made upon a solid foundation, despite being
denied baldly by the Respondents. In addition,
crucially, there is
the evidence of a rent book, other than in the hands of the owner,
obtained from the 1
st
Respondent.
[25]
The Respondent’s attach affidavits from several residents who
say no rent has ever been collected from them and no violence
has
ever been experienced. It is not possible in these
circumstances to give weight to those affidavits which, although it
is possible that they were freely given, it is also probable that in
the face of the rent book and the allegations under oath of
intimidation, the particular affidavits have been procured under
duress.
[26]
In my view the probabilities weighed in this way, on the principles
set out in
Webster v Mitchell,
favour the Respondents being
held to have been engaged in criminal conduct as described in the
Founding and Replying Affidavits.
[27]
I now consider whether or not the requirements of Section 5 of the
PIE Act have been met.Section 5(1)(a) requires some proof
of imminent
danger to any person. The existence of a probable threat of
extortion and intimidation satisfies that requirement.
[28]
The risk of the building having become unsafe is real, but in my view
has not been shown to be imminent in the sense set out
in Section.
5(1. I infer that from the absence of a proper inspection yet to be
carried out.
[29]
Section 5(1)(b) requires a balancing of hardship. The plain
reality is that, if expelled, these Respondents shall have
to find
elsewhere to live. It has been argued that the rent money that
they are alleged to have extorted must be in their
possession and
they can use that to rent premises elsewhere. That is not
impossible, but is clearly speculative. The
Respondents admit
to earning money as Panelbeaters, and so they are not wholly without
means.
[30]
The shelters of the City of Johannesburg are open to them. The
modest charge for over-nighting can probably be met.
The
eviction contemplated leaves their families, such as we know of
details regarding them, undisturbed. They will, necessarily
be
grossly inconvenienced, but the relief is interim, pending a fuller
deliberation about the propriety of their presence and that
of their
families.
[31]
Against that must be weighed the freeing of many people from the
threat of intimidation and extortion, and the allowing of
free access
to the building to the employees of the Applicant in order to address
maintenance issues.
[32]
In my view on the basis of the principles that I am required to
apply, the balance must be tipped in favour of the Applicant,
and the
interests which it seeks to serve by such relief. It minimises
disruption to the lives of the greater number.
[33]
Lastly, there is, in my view, no alternative suitable or effective
means to achieve this purpose as contemplated by Section
5(1)(c).
The prospect of policing the building to prevent the Respondents,
should they remain in occupation from any time,
or day or night,
committing acts of intimidation, whether directly or indirectly,
obviously implies a significant contingent of
security people being
deployed. That in my view is too demanding of the Applicant.
Accordingly,
in the circumstances the order which is appropriate, as drawn from
the Notice of Motion is as follows, and I make the
following order:
1.
The Respondents are ordered and directed to vacate the property
within 24 hours of the date of any order.
2.
That in the event that the Respondents fail to vacate
the
property as directed, the Sheriff of the Court or his deputy may give
effect to this order, by removing the Respondents from
the property
together with their goods and possessions, save such goods and
possessions as are necessary to provide for the needs
of the families
or co-inhabitants of the sections of the building which the said
Respondents occupy.
3.
The Sheriff of this court is authorised and directed to approach
the
South African Police Service and/or the Johannesburg Municipal Police
Department for any assistance he may require in the circumstances;
4.
The costs of this application shall be borne by the 1
st
,
2
nd
and 4
th
Respondents jointly and severally,
the one paying the others to be absolved.
……………………………
..
SUTHERLAND
J
JUDGE
OF THE HIGH COURT
DATE
EDITED: 22 May 2018