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[2010] ZAGPJHC 27
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Emfuleni Local Municipality v Builders Advancement Services CC and Others (2009/51258) [2010] ZAGPJHC 27; 2010 (4) SA 133 (GSJ) (28 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
No. 2009/51258
REPORTABLE
In
the matter between:
EMFULENI
LOCAL MUNICIPALITY
Applicant
and
BUILDERS
ADVANCEMENT SERVICES CC
First
Respondent
NANGALEMBE
ALBERT MBALEKELWA
Second Respondent
THE
UNLAWFUL OCCUPIERS OF ERVEN
1070;
1046; 905; 378; 1049; 888; 812; 488; 450; 267; 403; 898; 899; 911;
1484/36 & 1483/12
OF
IRONSYDE/DEBONAIR PARK
Third
Respondent
THE
FURTHER UNLAWFUL OCCUPIERS
OF
IRONSYDE/DEBONAIR PARK
Fourth
Respondent
THE
INVADERS
OF
IRONSYDE/DEBONAIR PARK
Fifth
Respondent
____________________________________________________________
JUDGMENT
____________________________________________________________
WILLIS
J:
[1] On Thursday,
1st April, 2010, the day before the Easter week-end commenced, I made
an order in this matter, indicating that
I would give my reasons
later. Not only the original court file, but also the duplicate file
has gone missing. A handwritten draft,
reflecting the outcome of
deliberations among counsel for the parties and the court, was made
an order of the court. As result
of the files having gone missing,
the draft order has been lost. There has been a considerable dela y
occasioned by vain attempts
by the attorneys for the applicant and my
registrar to locate the missing files and a copy of the order. What
follows is a reconstruction
of that order, taken from my notes, those
of counsel and attorneys for the applicant and my own recollection:
IT IS ORDERED
AS FOLLOWS:
The
application is postponed
sine
die
;
The applicant is
to furnish the respondents’ attorneys with copies of items 1
to 6 in the prepared index before the close
of business on 6 April
2010;
The respondents
are given a further and last opportunity to file a proper set of
answering affidavits by no later than Tuesday,
13 April, 2010;
The applicant is
to file its replying affidavit by no later than Thursday, 29 April,
2010;
In view of the
controversy and sensitivity surrounding this matter, the Deputy
Judge President is respectfully requested to appoint
a full court
consisting of three judges to hear the matter;
In view of the
urgency of the matter, the Deputy Judge President is respectfully
requested to arrange for a hearing of the matter
as soon as
reasonably possible;
The costs of this
application incurred thus far are reserved.
No real prejudice
has been occasioned to the parties by the reason of the lost order:
counsel for the parties, other than the fourth
and fifth respondents,
were in court and were fully aware of its contents. It is hard to
imagine that there can be any justifiable
excuses by any of the
parties for their failure to comply with the order in the interim.
[2] The file had
originally been allocated to another judge. He became unavailable and
I was asked to take over the matter as a
favour. I did so, unaware
that I was being given a “hot potato”. As I have recorded
above, I informed the parties that
I would give my reasons for the
order later, in a formal written judgment. These are my reasons.
[3]
This application was originally brought as an urgent one on 8
th
December, 2010. It was heard by my brother Kgomo J. The applicant is
a municipality. It seeks the eviction of a large number of
persons
whom it alleges are in unlawful occupation of State owned property.
Kgomo J made an order which restrained the first and
second
respondents from selling erven in Ironsyde/ Debonair Park and
authorised the serving of notices of intended eviction on
the
remaining respondents. After various postponements, my brother Mbha J
made an order on 9
th
March, 2010 that the respondents were to file their answering
affidavits by 16
th
March, 2010. Despite this order by Mbha J, various of the respondents
have not done so, at least insofar as filing an answering
affidavit
in the sense that such a document is generally understood to be. The
affidavit filed fails to deal with the material
allegations of the
applicant and raises all manner of irrelevant issues. The applicant
has asked that I make an order striking
out certain passages
therefrom. The respondents have also raised a whole number of points
that seem to me to be technical in nature.
They say that they have
not been made properly aware of the nature of the application. I
decided that the court should cut through
the procedural issues and
ensure that everyone received a full and fair hearing in the matter.
Initially, Mr
Pullinger
,
who appears for the applicant, submitted that, in view of the
respondents’ failure to deal with the material issues, I should
grant an eviction order.
[4]
After Mr
Pullinger
and I had exchanged a few “war stories” about our
experiences with applications for eviction, he agreed with the broad
thrust of the order which has been made. Mr
Ngqwangele
,
counsel for the first, second and third respondents,
also
agreed with it. He submitted “that we need clarity in these
matters”. Indeed we do. I also informed counsel that
I was
definitely the wrong person to decide the substantive points. My
reasons for doing so will appear for fully later. Furthermore,
the
making of eviction orders is so fraught with difficulty that I
considered it appropriate that the matter should be heard by
a
so-called “full bench”. Perhaps I should explain.
[5]
My experience of the case of
Machele
v Mailula
1
and
Philani-Ma-Afrika
v Mailula
2
may perhaps bear some repeating. Applying the well-known case
Plascon-Evans Paints Ltd v Van Riebeeck Paints
,
3
to determine factual foundation in motion proceedings, I had to
consider with a situation in which there had been a transfer of
a
dilapidated block of flats in central Johannesburg to a
bona
fide
purchaser.
The purchaser had bought the property in question with a view to
renovating and restoring it. His intention was obviously
to make a
profit. He paid some R3,5 million for the property. He was lent some
of this money by the Trust for Urban Housing Finance,
which was the
mortgagee, with a bond for R7,9 million registered over the property.
The size of the bond was indicative of the
scale of renovations
anticipated. In order to renovate and restore the property, it was
necessary to evict the tenants. To this
end, he brought an
application in this court.
[6] Over a period
of months, various judges of the High Court, including myself, made
orders to ensure that the provisions of the
Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act, No.19 of 1998
(PIE) were complied with. My brother, Gildenhuys
J ordered the City
of Johannesburg to file a report. It did so in terms that indicated
that the eviction would be justifiable.
I ordered the Registrar of
Deeds to file a report. He did so. He indicated that the
documentation submitted by the conveyancer
was “incomplete and
apparently incorrect”. He placed reliance on section 15 (A) (1)
(3) of the Deeds Registry Act,
No. of 1937, as amended. Essentially,
he submitted that he had to rely on the conveyancer to perform the
task at hand properly
and was entitled so to do. The document which
gave rise to the transfer specifically recorded that the conveyancer
was to act on
behalf of the seller, recorded therein as being
Philani- Ma-Afrika.
[7] In the
meantime, and in response to the eviction application,
Philani-Ma-Afrika, a company registered in terms of section 21
of the
Companies Act, No 61 of 1973, as amended, brought an application to
the South Gauteng High Court, the most salient feature
of which
application was to set aside the transfer. Prior to the transfer to
Mr Mailula as the purchaser, Philani-Ma-Afrika had
been the
registered owner.
[8] It was common
cause that the internal affairs of Philani-Ma-Afrika had been in a
parlous state or had “fallen into disarray’
for a long
time before either the sale or transfer of the property. It was
common cause that the provisions of section 228 of the
Companies Act
(relating to the sale of the greater part of the assets of a company)
had not been complied with, that there may
have been various other
irregularities and that there were pointers to the probability of an
internal fraud having been perpetrated
on the members of
Philani-Ma-Afrika by persons who had not been properly appointed to
act on its behalf. Rentals were not being
paid to Mr Mailula or
anyone acting on his behalf. To use a colloquial expression, the
building had been “hi-jacked”.
[9]
Gildenhuys J ordered that the eviction application and the
application to set aside the transfer to Mr Mailula be heard
together.
By the time the applications were heard by me, the parties
were
ad
idem
that
the applications w
ere
so closely interlinked that the result of the application to set
aside the transfer would determine the eviction: if the transfer
stood, the eviction order would have to be granted but on terms
allowing for a reasonable period to vacate and that if the transfer
was set aside, there would be no eviction order. After months and
months, we had reached the end of the road.
[10]
Although I delivered my judgment
ex
tempore
because
the matter appeared to have become urgent, needing a determination
before the long Court Recess at the end of the year,
I took the
trouble to review, as far as it was reasonably possible to do so, the
law concerning transactions that failed to comply
with the provisions
of section 228 of the Companies Act as well as the common law with
regard to our system of property registration
including transfers
thereof. I also referred to
section 28
(2) of the
Alienation of Land
Act, No. 68 of 1981
which provides that an alienation in terms of an
invalid deed of alienation will in all respects be valid
ab
initio
if
both parties had performed in full and the land in question had been
transferred to the transferee. There was no case law directly
in
point (i.e. where a transfer had actually been recorded by the
Registrar of Deeds, consequent upon deficient internal procedures).
I
came to the conclusion that, in our law, where the transferee had not
been party to any of the alleged irregularities, the finality
of
transfer was of utterly critical importance: the entire system of
property transfer would be chronically undermined with the
most
dreadful consequences, if this were not so. I also came to the
conclusion that the safeguard lay in the role of the conveyancer:
it
was he who had to be relied upon to protect the interest of the
person for whom he acted. In this case the person for whom the
conveyancer acted was Philani-Ma-Afrika. Consequently, I dismissed
the application to set aside the transfer and granted the eviction
order but allowed the tenants a month in which to vacate the
premises.
[11] Because the
point had never been decided before, I granted the application for
leave to appeal. Mr Mailula, the purchaser and
transferee, then
applied to leave to execute upon the judgment. I granted leave to
execute against those tenants who were not members
of
Philani-Ma-Afrika. I exempted the members of Philani-Ma-Afrika who
were tenants from the order. I took into account the fact
that
interest was ticking away, that debts for the use of utilities
relating to the building of the order of R1 million were rising,
as
were municipal rates, the risk of foreclosure, the need to support
the City in its efforts at promoting urban renewal, the fact
that in
my view the prospects of success in the appeal were not good and the
fact that at rentals of between R600 to R900 per month,
the evictees,
although they would be inconvenienced, should be able to find
alternative accommodation. There was no material difference,
in my
view, between their situation and that of any other rent-paying
tenant whose lease had expired.
[12]
The tenants then approached the Constitutional Court on an urgent
basis for an order suspending my order granting leave to
execute. The
Constitutional Court came to their relief. (See the
Machele
v Mailula
case above). In the unanimous judgment of the Constitutional Court,
it said “That the High Court authorised the eviction
without
having regard to the provisions of PIE is inexcusable.”
4
Quite how the Constitutional Court could have come to this conclusion
is one of the great unfathomable mysteries of my life.
5
[13]
The appeal was heard by the Supreme Court of Appeal (“the
SCA”).
6
The SCA found that a Mr Mkhumbuzi, who signed the deed of sale in
respect of which Mr Mailula was the buyer, was not authorised
“to
sell the building or to sign the conveyancing documents for the
property to be transferred to Mr Mailula”.
7
Accordingly, the orders which I had made had to be set aside and
replaced with orders which set aside the sale and the transfer
of the
property.
8
The SCA did not refer to any of the statutory or common law
authorities or any of the academic literature with which I had
engaged
when delivering my judgment. Although it did not say so
explicitly, the SCA seems to have applied the principle that “fraud
unravels all”. This principle is one of English law,
9
although it has been adopted in
Phillips
and Another v Standard Bank of South Africa Ltd and Others.
10
Nevertheless, in English law, the applicability of the principle
exists so as to prevent, on public policy grounds, a party from
relying on “
his
own
fraud”
(emphasis added).
11
That was not the position of Mr Mailula in the case before either me
or the SCA. Applying the
Plascon-Evans
principles
to determinations of fact in motion proceedings, Mr Mailula had to be
accepted as being
bona
fide
.
There can be no question that the Trust for Urban Housing Finance was
bona
fide
.
In any event, the “paper-trail” of the money tells its
own story. Moreover, the well-known case of
Jajbhay
v Cassim
12
made clear the distinction between English and Roman-Dutch law
principles and points out that the purpose of our common law
principles
on the subject is to curtail “the right of
delinquents
to avoid the consequences of their performance” (emphasis
added). Stratford CJ said that the application of the English law
principles “will not always serve public policy but will often
defeat it.”
13
Furthermore, since the House of Lords’ opinion in the
HIH
Casualty and General Insurance Limited and Others v Chase Manhattan
Bank and Others
case, English law seems now to be closer to our own.
[14] In the
result, a “hi-jacked” building in the inner city of
Johannesburg remains “hi-jacked” and the
Trust for Urban
Housing Finance and others in comparable situations such as banks
will have the ponder the security of a mortgage
bond – hitherto
considered as “good as gold” provided there was a
comfortable positive margin between the value
of the property and the
amount lent.
[15]
It is salutary to recollect that the current global economic crisis,
which has displaced at least tens of millions of persons
from
employment, was precipitated precisely by reason of the fact that
certain foreign banks lent money in circumstances where
the security
of mortgage bonds was inadequate. The problem was exacerbated by
“naked short selling” (if you please)
on various foreign
exchanges. In our law “naked short selling” (selling what
is not yours to sell) would be worse than
an obscenity: it would be
unlawful.
14
I am unapologetic in my conviction that the foundations of our common
law were laid upon a rock of wisdom. To hold such a view
is not to
adopt a “classicist” position that our common law should
be preserved in a time-capsule as something perfect,
pure and
unchanging.
[16]
Quite how the City of Johannesburg is to accomplish its mission to
transform ours into a “world class African city”
now
eludes me. As someone who used to serve as a representative of the
South Gauteng High Court, together with representatives
of the City
and others on a subcommittee to implement the regeneration and
revitalisation of the High Court precinct, as chairperson
of the
Board of Trustees for the Anglican Diocese of Johannesburg
15
and as a judge who has sat in motion court for more weeks than I care
to remember, I used to think (before being tainted by the
Constitutional Court and the SCA) that I had a fairly good grasp of
the problems faced by our city and that I had as reasonably
well
informed sense of solution. Relying on the experience the city of
London in transforming the its derelict former docklands
into
economically vibrant and effectively functioning places, of city of
New York in restoring dynamism to a city in decay, essentially
the
solution was considered to lie in always and everywhere promoting
virtuous cycles of progress. Bereft of any sense of solution,
I am
now despondent and despairing.
[17]
There is more at stake than the wounded ego of an individual judge.
When I was a candidate for appointment to the Constitutional
Court, I
received disdainful questions from several members of the Judicial
Service Commission (“the JSC”) about the
Philani-Ma-Afrika
matter. The General Council of the Bar sent a letter to the JSC in
which a senior member of the Johannesburg Bar Council had expressed
his serious reservations about me,
inter
alia
because
I did “not have a good record on appeal”. It seems he had
this case in mind. When I explained that I considered
overly zealous
restrictions on economic freedom by State institutions, including the
courts, ultimately to be inimical to the interests
of the people of
South Africa, the chairperson asked me: “Who do you mean by
‘the people of South Africa’?”
16
[18]
It seems that South African judges are expected to have views on
socio-economic rights. I shall therefore, briefly, put my
colours to
the mast. To my mind, the experience of Britain in the nineteenth
century, America in the twentieth century and in contemporary
China
provide clear and convincing evidence that there is a linkage between
economic freedom, with its incentives for innovation
and risk-taking,
and rapidly rising economic prosperity for all social classes. In
other words, the correlation between economic
freedom and general
prosperity is not coincidental but causal: the former results in the
latter. No better facilitator of social
transformation has ever been
invented. Money follows opportunity impervious to race, class or
gender. Ironically, if anyone doubts
the transformative power of this
economic model, he or she should read (or re-read)
The
Communist Manifesto
,
written
by Karl Marx and Friedrich Engels. It has high praise for economic
freedom’s ability to smash repressive social structures.
Hong
Kong for about 50 years after the Second World War, South Korea for
the past 50 years and Germany’s
wirtschafftwunder
from the 1950’s to the late 1970’s are other examples.
India, until fairly recently, was often considered, by many
well-informed economists to be mired in perpetual poverty. In the
past few decades, there have been huge strides in India away
from the
“poverty trap”, accompanied by a shift in favour of
economic freedom. India’s recent experience may
well be
illuminating as it shares with South Africa the “Congress
tradition”. Furthermore, there is a fairly widespread
view that
the Renaissance had its roots in emerging economic freedom. The
Renaissance led to the flowering of so much that was
excellent,
including the development of our superb, essentially liberal,
Roman-Dutch common law.
[19]
As it is with employment, so it is with housing: one does not, in my
view, “save” jobs by making it more and more
difficult to
dismiss employees and one does not make housing more widely available
by rendering the ownership of property which
is let to tenants a
serious economic hazard. Why would any sensible person take the risks
of employing people when it can be potentially
ruinous to do so? Why
buy or build housing to let to tenants, if the fundamental link
between tenancy and the payment of rentals
to landlords is
undermined? Why invest in property if there is a serious risk that
the “investment” will be worthless?
Obviously, economic
freedom is not to be confused with economic chaos: economic freedom
must function within a legal matrix. Nevertheless,
matrices, in order
to be nurturing, must allow room for growth and development. If not,
they can suffocate. If we want an African
Renaissance to emerge, we
shall have to place our faith in greater economic freedom and not
less.
[20]
In the edition of
Time
magazine
of 19 April 2010, the former British Prime Minister, Tony Blair,
wrote an essay, “What Aid Can’t Buy”.
In that essay
he says: “(G)rowing Africa’s private sector is the only
long-term way to escape from poverty”.
I agree. It is not
without significance that Mr Blair has been, throughout his adult
life, a member of the Labour Party, which
has won many plaudits for,
traditionally, being well-disposed to the people of South Africa. I
refer to this quote to underline
the fact that my views are not those
of some isolated “eccentric”. They are shared by a broad
spectrum of persons across
the world who have the interests of the
poor at heart.
[21] It should not
be forgotten that, consequent upon the fall of the Berlin Wall, in
1989, well-informed people throughout the
world considered that, if
the Berlin Wall had collapsed, the demise of apartheid could not be
far behind. The logic was inexorable:
if the Berlin Wall, sponsored
by the second most powerful nation on earth, could not withstand the
clamour for freedom, what chance
did apartheid have? The predictions
were prescient: within a few months of the fall of the wall, Nelson
Mandela was released from
prison. Freedom is indeed indivisible.
There are those who will not see the connection between the collapse
of the Berlin Wall
and the end of apartheid. Indeed, there appears to
be a high degree of cognitive dissonance – a belief that a
successful
post-apartheid society can be achieved by applying
precisely the policies that led, in the end, to the erection of the
Berlin Wall.
I doubt that “South African exceptionalism”
extends so far as to make it possible for us to succeed where the
former
Soviet Union failed.
[22] This
dissonance extends further. In almost every application to the courts
for orders against the government, the relevant
minister or official
will make strong appeals to the court for an appropriate recognition
of the principle of judicial restraint.
On the other hand, there
seems to be a strongly prevailing view at the JSC in favour of
judicial interventionism, especially when
it comes to socio-economic
rights.
[23]
According to the iron laws of mathematics (which no amount of
sophistry by lawyers can change), a compound annual growth rate
of 7%
results in a doubling of the average standard of living in 10 years,
a quadrupling within 20 and an eight-fold increase
within 30 years.
Imagine our situation if, within a generation, the standard of living
of the poor were raised at least eight-fold.
Conversely, the same
laws of mathematics entail that that at a 10% annual growth rate the
average standard of living will double
in 7 years, quadruple in 14,
increase eight-fold in 21 years and sixteen-fold in 28 years. China
has had an annual growth rate
of 10% for 30 years.
17
It may be hard to comprehend that since China embarked on its course
of economic freedom 30 years, the average standard of living
has
increased more than 16 times over, but it is true. In the period of
16 years that South Africa has been a democracy, China’s
average standard of living has more than quadrupled. It shows in
innumerable ways. Tellingly, not only has China become a superpower
but the world has, literally, had to re-orient its gaze from west to
east, from the occident to the orient.
[24]
Quite how that reorientation of gaze will affect us is uncertain.
What is certain, however, is that we shall all be changed.
The view
looking to the east is different from the west: even the light,
colours and textures become subtly different. I strongly
suspect,
though, that the smugness and complacency so often apparent in both
the first and the third world are in for a rude awakening.
Intellectuals will find many of their assumed verities of the past
severely challenged. Nevertheless, as William Ewart Gladstone
observed, “You cannot fight against the future.”
18
[25] If China,
which began its modern course with far fewer advantages than we have,
could grow at 10% per annum over thirty years,
there is no reason why
we should not be able to achieve a more modest 7% in the next 30
years. To my mind, there can be no doubt
that much more good would
come from that than any amount of judicial decrees on socio-economic
rights. Furthermore, we would, of
course, have to adopt similar
pro-growth economic policies throughout sub-Saharan Africa. Not only
would this be necessary to avoid
a flood of uncontrollable illegal
immigration but it is better to trade with those who are prosperous
than with those who are poor.
There can be no question that South
Africa’s destiny is tied to the rest of Africa.
[26]
The question may arise: would not such an approach render nugatory
the socio-economic rights enshrined in the Constitution?
In my view,
if the courts reliably, predictably and consistently act to preserve,
protect and defend the institutional framework
that allows human
imagination, creativity, innovation, risk-taking and freedom to soar,
that they will best promote the attainment
of socio-economic rights.
After all, what better socio-economic right can there be than to
escape from the bonds of poverty? Indeed,
surely almost everyone
would rather be prosperous than poor and patronised? Above all, the
courts must always protect those who
strive to promote the
achievement of our constitutionally enshrined socio-economic rights.
There is no monopoly of truth. The dissenters
must always be free to
express their views. It is in the “marketplace of ideas”
19
that human progress is to be found.
[27]
It must be rare indeed for it to be satisfying for a court to order
an eviction or to confirm an employee’s dismissal.
Nevertheless, in my view, unless the courts are well attuned to
economic realities and are firm, clear and consistent in applying
the
principles that provide the foundation for economic prosperity for
all, we shall all rue our acquiescence in what may perhaps
be a
misplaced moral superiority being paraded in high places.
[28]
In the cases of
Government
of South Africa v Grootboom
20
and
Port
Elizabeth Municipality v Various Occupiers
,
21
for example, the Constitutional Court has expressed itself against
the unlawful occupation of immovable property. As far as I am
aware,
there is effectively only one legal remedy for the unlawful
occupation of such property: an eviction order. Obviously, the
making
of any such order must be exercised with compassion, grace and an
awareness of the right of every human being to be treated
with
dignity. It hardly needs be said that any such order must take into
account the provisions of the Bill of Rights in the Constitution.
Nevertheless, although it may be postponed the making of the order
cannot, it seems to me, be avoided. Questions arise as to whether
the
court should,
mero
motu
,
call upon to the Minister of Human Settlements to present a report
and make recommendations to the court. Further questions arise
as to
whether, apart from statistics, he could usefully add to that of
which the court is already aware. Lest I be understood,
let me make
it clear that I intend no disrespect to the minister concerned. My
point is that any well-informed person, (and this
surely must be
presumed to include ministers of state and judges), must be aware
that we face serious problems in respect of poverty,
unemployment,
illegal immigration and housing. Questions arise as to whether the
court should order the government to provide alternative
accommodation to the occupiers of the property.
To my mind, this raises questions as to the following:
Do
not the appropriate boundaries between the function of the
government, on the one hand, and the courts, on the other, become
murky;
Is
it not likely that orders such as these could have major
implications for the government which, in any society, has to make
complex decisions regarding the allocation of resources – can
a well-intentioned order such as this not have major and
unfortunate consequences for social policy in other areas;
How
does one ensure compliance with the order;
In
a democracy, is not the primary remedy for those dissatisfied with
government policy, to vote it out of office or to reduce
its
majority;
Should
there not be, at the forefront of all court decisions affecting the
government, an awareness that power of the courts lies
principally
in what it
pro
scribes
rather than what it
pre
scribes;
Should
the courts not be astute to the fact that they are our shield and
defender rather than our supreme social engineer;
Is
it not especially problematic when a single judge of the High Court
makes orders against the government which may have such
vast
implications in respect of social and economic policy;
What
about the implications of time lost through the inevitable process
of appeals, probably all the way to the Constitutional
Court?
[29]
I have a further difficulty: where the law provides a remedy that is
clear and certain to follow upon an unlawful act, the
likelihood of
expensive and protracted appeals is considerably reduced. Very often,
provided a judge furnishes a satisfactorily
reasoned judgment on the
facts which led to the conclusion of unlawful conduct, the
unsuccessful party will not even attempt to
take the matter on
appeal. Where, however, there are a number of different permutations
and combinations as to the appropriate
remedy (and thus, the order),
appeals are almost inevitable. Furthermore, the likelihood that the
order of the judge of first instance
will be “second-guessed”
is much increased. This undermines the reliability and predictability
of law. If there are
any doubts that these are virtues in law, the
doubter should read
t
he
well-known English case of
Cassell
& Co Ltd v Broome
22
which
has been referred to with approval by the SCA in
S v Kgafela
.
23
[30]
Unlike the position with various other rights, our Constitution does
not enshrine the ownership of property as a right (see
section 25 of
the Constitution which deals with “property rights”). It
merely provides qualified protection against
the arbitrary
deprivation of property and that a person may only be deprived of
property by law “of general application”.
If the courts
above the High Court consider that “all property is theft”
24
,
the High Court and the people of South Africa need to know this. On
the other hand, if these higher courts consider that property
rights
are deserving of protection but, nevetheless, the common law is not
to be applied in doing so, we also need to know how
the High Court is
to go about doing its duty. Contumely hurled at individual judges
will not suffice.
[31]
I am bewildered and confused as to how a court is expected to deal
appropriately with applications for eviction. As Mr
Ngqwangele
submitted, we need clarity. We also need much wisdom. We need
practical, but nevertheless fair and just answers to some highly
vexing issues. I hope that the order which I have made, may play some
small part in setting us on the high road to economic prosperity
and
a better life for all.
DATED
AT JOHANNESBURG THIS 28th DAY OF APRIL, 2010
N.P.
WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant:
Adv.
A.
W. Pullinger
Counsel
for the First, Second and Third Respondents:
Adv.
B.Y.
Ngwangele
Attorneys
for the Applicant: Allen & Associates
Attorneys
for the First, Second and Third Respondents:
Jegeh
Attorneys
No
appearance for Fourth and Fifth respondents
Date
of hearing: 1
st
April, 2010
Date
of judgment: 28
th
April 2010
1
2010
(2) SA 257
(CC)
2
2010 (2) SA 573
(SCA)
3
[1984] ZASCA 51
;
1984
(3) SA 623
(A).
4
At
paragraph [16]
5
My
judgments have been posted on
SAFLII, JDR
(Juta) and JOL (LexisNexis)
.
6
Philani-Ma-Afrika
and Others v Mailula and Others
2010 (2) SA 573
(SCA)
7
See
paragraphs [10] and [15] of the SCA judgment.
8
See
paragraphs [16], [19] and [21] of the SCA judgment.
9
See,
for example,
HIH
Casualty and General Insurance Limited and Others v Chase Manhattan
Bank and Others
[2003] UKHL 6
at paragraph 15;
Lazarus
Estates Ltd v Beasley
[1956] 1 QB 702
at 712
10
1985 (3) SA 301
(W) at
303D-I
11
See
the
HIH
Casualty and General Insurance Limited and Others v Chase Manhattan
Bank and Others
case
(
supra
)
at paragraph 16
12
1939
AD 538
at 540
et
seq
13
At
541.
14
Although,
of course, the seller does not have to be the owner but is deemed to
warrant that he will be able to deliver good title.
See, for
example, Voet 18.1.14; 19.1.10; Grotius 3.15.4;
Frye’s
(pty) Ltd v Ries 1957 (3) SA 575 (A).
15
The
Board of Trustees owns all the assets of the diocese. These assets,
worth billions of rands, include St Mary’s Cathedral
and the
Diocesan Office in the city centre.
16
The
interviews are a matter of public record and are recorded.
17
See,
for example,
Time
magazine,
19 April, 2010, p24.
18
Speech
on the Reform Bill, 1866. Gladstone was a former British Prime
Minister.
19
The
expression was made famous by Justice Oliver Wendell Holmes in the
case of
Abrams
v United States
[1919] USSC 206
;
250
U.S. 616
(1919).
20
2001
(1) SA 46
(CC) at paragraph [92]
21
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at paragraph
[20]
22
[1972] UKHL 3
;
[1972]
AC 1027
;
[1972] All ER 801
(HL)
23
2003 (5) SA 339
(SCA) at para [3]
24
The
original author of the expression was, most probably, P-J Proudhon
whose book,
What
is Property? An Inquiry into the Principle of Right and Government
was published in 1840.