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[2010] ZAGPJHC 125
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Mthimkulu and Another v Mahomed and Others (A5042/2010) [2010] ZAGPJHC 125; 2011 (6) SA 147 (GSJ) (3 December 2010)
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
Case
Number: A5042/2010
Date:
03/12/2010
In
the appeal between:
SANDRA
MTHIMKULU
...............................................................................
First
Appellant
THE
OCCUPIERS OF CHUNG HUA MANSIONS
191
JEPPE STREET,
JOHANNESBURG
.............................................
Second
Appellant
…
..................................................................................The
…......................
Applicants
in the Court
a
quo
And
HOOSEIN
MAHOMED
............................................................................
First
Respondent
SNG
SECURITY AND SAFETY
CC
....................................................
Second
Respondent
CHANGING
TIDES PROPERTIES (PTY) LTD
.................................
Third
Respondent
STATION
COMMANDER, JOHANNESBURG
CENTRAL
POLICE
STATION
.............................................................
Fourth
Respondent
DONNOVAN
REED
...............................................................................
Fifth
Respondent
…
...............................................................................................................
The
Respondents in Court
a
quo
JUDGMENT
C.
J
.
CLAASSEN
J
:
[1]
This is an appeal against the judgment handed down by Maluleke J on
26 August 2010. The court
a
quo
dismissed
the application brought by the first and second applicants. No order
in regard to costs was issued.
[2]
In the court
a
quo
the
first and second applicants sought an urgent order against the
respondents in the following terms:
"2.
Declaring the eviction of the Applicants unlawful;
3.
Ordering the Respondents,
ante
omnia,
to
immediately restore to the applicants undisturbed possession of their
home at the premises situated at 191 Jeppe Street, ERF
1298,
Johannesburg ('the property');
4.
That failing the Respondents complying with paragraph-3 hereof within
two hours of this order being served on them, the Applicants
are
authorised to obtain the services of a locksmith to open the property
to afford the Applicants access thereto;
5.
Following restoration of the property to the Applicants, the
Respondents are interdicted and restrained from taking any steps
or
performing any conduct, whether acting personally or through the
agency of any other person, with the intention or effect of
evicting
the Applicants from the property without an order of court entitling
them to do so.
6.
Declaring that the First, Third, Fourth and Fifth Respondents are in
contempt of the order of this Honourable Courts.
7.
Ordering that the First, Third, Fourth and Fifth Respondents shall be
sentenced to a fine which shall be suspended on condition
that the
Respondents shall not within the next 20 years, evict the Applicants
from the property without an order of court authorising
the eviction.
8.
Ordering that the Respondents, jointly and severally, the one paying
the other to be absolved, pay the costs of this application
on the
scale as between attorney and client."
THE
BACKGROUND FACTS
[3]
The following facts are common cause or undisputed:
1.
The property is a multi-storey building situated at 191 Jeppe Street
Johannesburg. It is owned by the third respondent, Changing
Tides
Properties (Pty) Ltd ('the owner'). The first respondent is the son
of one of the owner's directors.
1
His name is Hoosein Mahomed ('Mahomed').
2.
On 8 October 2009 Ntsebeza AJ granted an order
2
in this court under case number 2009/40253:
2.1
Declaring that the eviction by Mahomed and two corporate entities of
the occupiers of the property was unlawful;
2.2
Directing Mahomed and the other respondents in that case to restore
possession of the property to the occupiers of the property;
and
2.3
Interdicting Mahomed and one of the corporate entities from taking
steps with the intention of evicting the occupiers from the
property
without an order of court entitling him to do so.
3.
Despite this order, a further eviction ensued four days later on 12
October 2009 with the involvement of certain police officials.
3
This
application was placed before Kgomo J who granted an order in the
following terms:
4
3.1
Declaring that the eviction of the occupiers of the property was
unlawful;
3.2
Directing Mahomed and the other respondents in that case (including
the present third to fifth respondents) to restore possession
of the
property to the occupiers of the property; and
3.3
Interdicting Mahomed and the other respondents in that case
(including the present third to
fifth
respondents) from taking steps with the intention of evicting the
occupiers from the property without an order of court entitling
them
to do so.
4.
Although not served on the respondents, the orders of both Ntsebeza
AJ and Kgomo J came to the notice of the respondents.
5
5.
Some 9 months later and during June 2010 the third respondent and
Mahomed started planning again to remove the occupiers from
the
property.
6
6.
Mahomed is the person in charge of the property and the person to
whom the owner had delegated the task of evicting the appellants.
Mahomed had, in turn, retained the second respondent - SNG Security
and Safety CC ('SNG') - to assist in the eviction of the respondents.
SNG delegated the eviction of the appellants to the
fifth
respondent, Donnovan Reed ('Reed').
7
7.
Reed, Mahomed, a number of officers of the second respondent and a
number of police officers were present at the property on
the day of
the eviction, on 9 August 2010.
8
8.
The two hundred and fifty three appellants were residing at the
property at the time of the eviction.
9
They were "unlawful occupiers" for the purposes of the
Prevention of Illegal Eviction from, and Unlawful Occupation of
Land
Act 19 of 1998 ("the PIE Act").
10
9.
The respondents intended to evict the appellants from the property.
The respondents intended to launch an eviction application
in terms
of the PIE Act a week after the appellants were evicted.
11
On their own version, they were present at the property on the day of
the eviction in order to cause the occupiers of the ninth
and tenth
floors to vacate those floors in order to
commence
renovations to that part of the building.
12
[4]
This appeal raises the following questions:
1.
The applicability of the legal principle known as
"counter-spoliation".
2.
Whether or not the appellants were in peaceful and undisturbed
possession of their homes on the property.
3.
Whether or not the appellants were evicted or consented to leave
their homes by their own free will.
4.
Whether or not the respondents were in contempt of this court
COUNTER-SPOLIATION
[5]
This principle of law applies where a person being spoliated of the
possession of a thing is entitled to use self-help in regaining
possession thereof from the spoliator. This can only be done if the
possessor acts swiftly
("instanter").
This
question was, however, never raised in the papers or during argument
in the court
a
quo
by
the parties' legal representatives. The court
a
quo
raised
this issue for the first time in its judgment. Neither party was
given an opportunity to make submissions in this regard,
prior to the
court
a
quo
handing
down its judgment.
[6]
It is necessary for any court to inform the parties of any point of
law, fact or other aspect of the case at hand which it wishes
to
raise in judgment that has not been dealt with previously. The way to
do this is to inform the parties and/or their legal advisers
of the
court's desire to deal with it and call for their responses in regard
thereto. The parties may wish not to respond to such
invitation, in
which case the court may justifiably proceed in handing down its
judgment raising the new aspect. On the other hand,
if the parties
want to respond, they can be invited by the court to raise the issue
in oral argument before the presiding officer
in open court at a time
suitable to all concerned. At such an occasion a party may wish to
apply for an amendment to the pleadings
or apply for leave to re-open
his case and lead further evidence. The court will then have to
decide on the appropriate course
as justice may demand.
Alternatively, the parties may wish to respond by submission of
further written argument. In the latter
instance it is important to
allow the plaintiff or applicant the same rights normally afforded in
court, i.e. by replying to any
argument advanced by the other side.
[7]
In the absence of affording the parties the aforesaid right to deal
with any new aspect which a court wishes to raise, it is
improper for
a court to deal with a point of law or fact not raised by either
party ^ for the first time in its judgment.
[8]
Very appropriately, Mr. Willis for the respondents abandoned the
issue of counter-spoliation raised by the court
a
quo
in
its judgement. Nothing need be said further in regard thereto.
PEACEFUL
POSSESSION
[9]
In a spoliation application the court will not entertain the merits
of the dispute regarding the lawfulness of the applicant's
possession. All that need to be established is:
1.
That the applicant was in peaceful and undisturbed possession of the
thing; and
2.
That the respondent unlawfully deprived him of possession.
Upon
establishing these facts, the applicant is entitled to restoration of
possession he exercised prior to the spoliation.
[10]
It is clear that the court
a
quo
was
alive to the principles underscoring
mandament
van spolie.
It
correctly pointed out:
"It
is a fundamental principle that no man is allowed to take the law
into his own hands; no one is permitted to dispossess
another
forcibly or wrongfully and against his consent of the possession of
property whether movable or immovable. If he does the
court will
similarly restore the
status
quo ante
and will do that as a preliminary to any inquiry or investigation
into the merits of the dispute."
13
[11]
In the present instance the question to be answered is whether or not
the appellants were in peaceful occupation of their homes
in the
third defendant's property on the afternoon and evening of 9 August
2010. The answer to this question will depend upon the
period, if
any, that the appellants were in peaceful and undisturbed possession
of their homes in
the
property. It is common cause on the respondents' own showing that the
appellants were, at the very least, in peaceful and undisturbed
possession of their homes in the property for a period of not less
than six weeks prior to the 9
th
August 2010. The deponent to the answering affidavit alleges that for
a period from the end of June 2010 to 9 August 2010 the 253
occupants
resided in the building.
14
In addition, the mere fact that the respondents allege that the
appellants vacated the building by their own free will, pre-supposes
that they were peacefully in possession of the property and that they
peacefully vacated the property.
[12]
In my view, the common cause facts clearly indicate that the
appellants were indeed in peaceful and undisturbed possession
of the
property.
EVICTION
OR CONSENT?
[13]
The respondents alleged that the appellants vacated their homes on
the property "voluntarily and peacefully"
15
and "without even being asked to do so."
16
The fifth respondent stated that "he was in a state of surprise"
and the first respondent "concluded that as implausible
as it
may have seemed", the appellants indeed vacated the property by
their
own
volition.
17
[14]
The court
a
quo
did
not decide the issue as to whether or not the appellants vacated
their homes voluntarily. In my view, the common cause facts
as well
as the probabilities would have made a conclusion that the appellants
vacated their homes voluntarily, quite fanciful,palpably
implausible
and far-fetched.
18
1
say this, since the respondents' version is totally incompatible with
the following evidence:
1.
The respondents' own allegations that "people started throwing
bricks and bottles and even umbrellas as spears" at
the
respondents and their agents on the day of the eviction.
19
2.
The respondents' own evidence that the appellants repelled them from
the property just three days before the eviction.
20
3.
The respondents' own evidence that while the eviction was taking
place, two police vans arrived saying that a call had been logged
that there was an illegal eviction in progress.
21
The allegation that the police left can not lead to an inference that
they were persuaded that no illegal eviction was being executed.
The
fact is that they were called to attend an
illegal
eviction.
The
police do not confirm that they left the scene because they were
convinced that no illegal eviction was on the go.
4.
The fact that, on the respondents' own version, at least forty people
slept outside the property on the night of the eviction
which
occurred during winter.
22
Many more slept at a shelter for
the
homeless at the Central Methodist Church that evening.
23
5.
The medical reports annexed to the appellants' replying affidavit
which show that at least thirteen of the appellants sustained
injuries from assaults committed against them during the course of
the eviction.
24
6.
The evidence of Bishop Paul Verryn, who says, on the basis of many
months of work with the appellants, that it is "inconceivable"
that the respondents would have left the property without a court
order directing them to do so.
25
Verryn also confirms that the appellants had "on two previous
occasions fought their unlawful eviction from the same premises."
26
7.
The photographs annexed to the appellants' replying affidavit,
showing the chaos outside the property on the day of the eviction.
The appellants are clearly pictured with their belongings strewn
across the pavement outside the property. It is inconceivable
that
the appellants would have consented to being treated in this
way.
27
8.
There is no evidence indicating that the occupants had left the
building. The allegation that "some of them began throwing
their
possessions
out of the window
28
does not induce an impression that the appellants left the building
peacefully and voluntarily.
9.
The allegation that the appellants suddenly decided to leave the
building of their own volition is based on a double hearsay
allegation that the fifth respondent received a cellphone call from
"those in the building reporting that occupants were informing
them that they were leaving of their own accord."
29
According
to the respondents, "those" comprised a Flying Squad member
by the name of Sergeant Kruger and a few security
guards in the
employ of the second respondent. Despite an undertaking to do so, the
respondents failed to obtain any affidavit
from anyone of the group
who allegedly experienced the change of heart on the part of the
remaining appellants. On the respondents'
version this surprising
volte-face
occurred
as a result of the respondents having laid a charge of fraud and
building hi-jacking against 3 of the appellants' committee
members.
However, no evidence is presented that the appellants knew that such
charges were laid. It is therefore inconceivable
that their attitude
would have changed if they were unaware of the cause of the absence
of the committee members.
10.
The 3 committee members were arrested on Friday 6 August. If, on the
other hand, the appellants did know of such arrest, it
is
inexplicable that they repelled the respondents' representatives from
the building on Friday 6 August but did not do so on Monday
9 August.
If the arrest and absence of their leaders did not restrain them from
violently resisting eviction on Friday, why
the
volte-face
just
a mere 3 days later? The respondents' version just does not pass
muster.
11.
The respondents allege that the commotion on 9 August was instigated
by committee members who incited the people to violence.
According to
the first respondent the "fifth respondent was informed" of
this. There is no allegation from whom this
information came or how
it was established. It is a bald statement unsupported by any
credible evidence. The only reasonable inference
to be drawn is that
the violence was not instigated by committee members and/or the
appellants and that it ensued from the forcible
eviction of the
appellants.
[15]
It must therefore be accepted that the appellants did not vacate
their homes in the respondents' property, voluntarily but
were
forcibly evicted by the respondents.
CONTEMPT
OF COURT
[16]
In this regard the court
a
quo
found
that it was "unable to draw the inference that the respondents
wilfully and
mala
fide
disobeyed
the court order." This finding was based on the fact that the
court order had not been served personally upon the
respondents.
Civil contempt requires proof beyond a reasonable doubt of (i) the
existence of the court order; (ii) service of the
order upon the
respondent
or
that the respondent had knowledge thereof;
and
(hi) that non-compliance was wilful and
mala
fide.
30
The
court
a
quo
misdirected
itself in stating that lack of service of the order ousted a
conclusion of civil contempt.
[17]
Once an applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
("weerleggings
las") in relation to wilfulness and
mala
fides.
All
that is required of the respondent is to advance evidence which
establishes a reasonable doubt
as
to whether non-compliance was wilful and
mala
fide.
31
The
rationale for this requirement is to prevent committal (loss of
liberty) to be
established
preponderantly rather than conclusively.
32
[18]
Where however, enforcement of a court order is sought civilly without
any criminal sanction, proof of contempt of court may
be established
on a preponderance of probability. A court may issue a
declarator
that
a respondent is in contempt of court, established only on a balance
of probabilities, together with associated civil relief
such as
barring a contemnor from access to civil courts until the contempt is
purged.
33
In the present case the appellants did not seek a committal, only a
suspended fine. The respondents' liberty is not at stake.
[19]
The order of Kgomo J handed down on 12 October 2009 was clearly
brought to the respondents' attention. They do not dispute
this fact
and they dealt with the order in some detail in their answering
affidavit.
34
In my view, it is clear on the established facts that the first,
third, fourth and fifth respondents did violate the order of Kgomo
J
by evicting the applicants without a court order on 9 August 2010.
These respondents therefore bore an evidentiary burden to
establish a
reasonable doubt that they did not act wilfully or
mala
fide.
They
failed altogether to discharge this burden of proof.
CONCLUSION
[20]
In these circumstances the court
a
quo
should
have granted the contempt order as prayed for. As to the appropriate
costs order, cognisance should be taken of the fact
that the 4
th
respondent did not oppose the application in the court
a
quo,
or
the appeal. It would be unfair to mulct the 4
th
respondent
in an order for costs.
[21]
For the reasons set out above I am of the view that the appeal should
be upheld and the following order is issued:
1.
The appeal is upheld.
2.
The 1
st
,
2
nd
,
3
rd
,
and 5
th
respondents are ordered to pay the costs on appeal, including the
costs of two counsel.
3.
The order of the court
a
quo
is
set aside and replaced with an order in the following terms:
"1.
The eviction of the applicants is declared to be unlawful.
2.
The respondents are ordered
ante
omnia
to
immediately restore to the applicants undisturbed possession of their
homes at the premises situated at 191 Jeppe Street, Erf
1298,
Johannesburg ('the property').
3.
Following upon the restoration of the property to the applicants, the
respondents are interdicted and restrained from taking
any steps or
performing any conduct, whether acting personally or through the
agency of any other person, with the intention or
effect of evicting
the applicants from the property without a court order entitling them
to do so.
4.
It is declared that the first, third, fourth and fifth respondents
are in contempt of the order of court handed down by Kgomo
J in this
court on 12 October 2009.
5.
The first, third, fourth and fifth respondents are each ordered to
pay a fine of R100 000.00, suspended on condition that they
shall not
within the next twenty years evict the applicants from the property
without a court order.
6.
The first, third and fifth respondents are ordered, jointly and
severally, the one paying the other to be absolved, to pay the
costs
of this application on the scale as between attorney and client."
DATED
THE 3rd DAY OF DECEMBER 2010 AT JOHANNESBURG
C.
J. CLAASSEN
JUDGE
OF
THE HIGH COURT
I
agree
P.
BLIEDEN
JUDGE
OF
THE HIGH COURT
I
agree
V.
NGALWANA
ACTING
JUD
GE
OF THE HIGH COURT
Counsel
for the Appellants:
.................
Adv
M. Chaskalson SC
…
..........................................................
Adv
I. de Vos
Adv
S. Wilson Counsel for the Respondents:
…......
Adv
R. S. Willis
Attorney
for the Appellants:
.......................................
Seri-SA
Law Clinic
Attorney
for the 1
st
,
2
nd
,
3
rd
and 5
th
Respondents: Esther Muller Attorneys Attorney
for
the Fourth Respondent:
.................................
The
State Attorney
The
appeal was argued on 1 December 2010
1
See
Volume 1. p 51. paragraph 10.
2
See Volume l,p9, paragraph 14.1; the order is Annexure B at Volume
l,pp33 —36.
3
See
Volume 1, p 9, paragraph 14.1.
4
See Volume 1, p 10, paragraph 14.2; the order is Annexure C at
Volume 1, pp 37 -38.
5
See
Volume 1, p 10, paragraph 15 read with Volume 1, pp 57 - 58 paras
18.1 - 18.2.
6
See
Volume 1, pp 47 - 48, paragraphs 9,2.1 - 9.2.4.
7
See
Volume 1, pp 58 - 68, in which Mahomed's and Reed's role in
organising the eviction is set out in detail.
8
See
Volume 1, p 11, paragraph 21.
9
See
Volume 1, p 6, paragraph 4 read with Volume 1, pp 47 - 50,
paragraphs 9 - 9.4 at p 50, paragraph 9.3.2 in particular. A list
of
the occupiers was compiled by Lwazi Mtshiyo of the appellants'
attorneys of record. He deposes to an affidavit authenticating
the
list. That affidavit is to be found at Volume 4, p 296, paragraph 7
in particular.
10
The third respondent, on its own version, was preparing to bring an
eviction application against the occupiers. See Record, Volume
1, p
57, paragraph 16.5.
11
See Volume 1, p 57, paragraph 16.15
12
See
Volume l,p59, paragraphs 20.4 - 20.6 andVolume 1, p 65, paragraph
23.3.
13
See Volume 4, p 308, paragraph 2.
14
See Volume 1, p 50, paragraph 9.3.2.
15
See
Volume 1, p 45, paragraph 5.1.3.
16
See
Volume 1, p 68, paragraph 24.1.
17
See
Volume 1, p 66, paragraphs 23.9 and 23.10.
18
See
National
Director of Public Prosecutions v Zuma
2009
(2) SA 277 (SCA) at 290D - G and 291A — B where Harms DP said
the following:
"[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common
cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed
to determine
probabilities. It is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred
in the applicant's ... affidavits, which have been admitted by the
respondent together with the facts alleged by the
latter, justify
such order. It may be different if the respondent's version consists
of bald or uncreditworthy denials, raises
fictitious disputes of
fact, is palpably implausible, farfetched or so clearly
untenable that the court is justified in
rejecting them merely on
the papers. The court below did not have regard to these
propositions and instead decided the case on
probabilities without
rejecting the NDPP's version.
[27]
.........In motion proceedings the question of onus does not
arise and the approach
set
out in the preceding paragraph governs irrespective of where the
legal or evidential onus lies."
19
See
Volume 1, pp 66 - 67, paragraph 23.12.
20
See
Volume 1, pp 63 -64, paragraph 21.6.
21
See Volume 1, p 66, paragraph 23.8.
22
See
Volume 1, p 69, paragraph 26.3.
23
See
Volume 4, p 301.
24
See
Volume 4, pp 280 - 292
25
See Volume 4, p 301, paragraph 13.5
26
See
Volume 4, p 300, paragraph 13.1
27
See Volume 4, p 293
28
See Volume 1 p 67 paragraph 23.13.
29
See
Volume 1 p 65 paragraph 23.5.
30
See
Fakie
NO
v
CCII
Systems (Pty) LTD
2006
4 SA 326 SCA at p 344 par {42}(c).
31
See
Fakie
supra
at par [42](d).
32
See
Fakie
supra
at p 337G, paragraph [19].
33
See
Fakie
supra
at p 336H, paragraph
[16].
34
See Volume 1, p 10, paragraph 15 read with Volume 1, pp 57-58,
paragraphs 18.1 - 18.2.