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[2019] ZAGPJHC 299
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Marialdo Tre (Pty) Ltd v Dlamini and Others (45617/2017) [2019] ZAGPJHC 299 (23 August 2019)
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Certain
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 45617/2017
In
the matter between:
MARIALDO
TRE (PTY)
LTD
Applicant
and
MATHANDA
DLAMINI
First Respondent
BONISILE
NOMSA
DLAMINI
Second Respondent
SENZO
NOBLE
MAJOLA
Third Respondent
SIMANGELE
CHERYL
KHOZA
Fourth Respondent
PATRICK
PHIKELEUNKOSI
MKHIZE
Fifth Respondent
RICHARD
ZWAKUSHIWO
MKHIZE
Sixth Respondent
THABANE
NGUBANE
Seventh Respondent
SANELE
SIYABONGA
ZUMA
Eight Respondent
SIMON
MBOPHISENI
NGUBANE
Ninth Respondent
BUHLE
NKANYISO
Tenth Respondent
JOHANNES
CHIKOTA
Eleventh Respondent
MDUDUZI
LUCKY
MKIZE
Twelfth Respondent
SKHUMBUZO
ZUNGU
Thirteenth Respondent
SIPHAMANDLA
SEDRICK ZUMA
Fourteenth Respondent
SIBONGILE
ELLEN MNTUNGWA
Fifteenth Respondent
EMMANUEL
NKOSINATHI DLAMINI
Sixteenth Respondent
JABULANI
PIUS
MCHUNU
Eighteenth Respondent
BONISIWE
MNUKWA
Nineteenth Respondent
JUDGMENT
VAN
EEDEN AJ
:
1.
The applicant seeks the
eviction of a number of respondents, including all persons occupying
certain immovable property by, through
or under the persons listed as
respondents. The matter was launched as long ago as November 2017. Ms
C Gordon represented the applicant,
and Ms E Broster, assisted by Mr
N Sithole, represented respondents one, three to six, nine, twelve to
fourteen, seventeen and
eighteen (“
the
occupiers”
).
The sixteenth respondent is the City of Johannesburg Metropolitan
Municipality (“
the
City”
) and
was represented by Mr G McMaster. There was no appearance on behalf
of respondents two, seven, eight, ten, eleven, fifteen
and nineteen.
2.
The applicant is the owner of
the immovable property concerned and the occupiers are in unlawful
occupation. It was common
cause that eviction had to be
ordered, subject to the requirement that the date of the eviction
should be just and equitable to
all. The parties could not
agree on the dates and other terms relevant to an order of eviction,
in consequence of which each
party handed up a separate draft order
for debate. The occupiers proposed a time period of six months before
eviction could be
ordered, and the applicant acceded thereto as a
maximum period, i.e. that eviction be ordered at the end of February
2020.
The City did not agree to this or any other date.
3.
The only real point of
difference between the applicant and the occupiers was whether the
eviction order had to be made conditional
upon the City providing
temporary emergency accommodation, abbreviated as “TEA”.
Ms Gordon submitted that eviction
could not be made conditional, as
the applicant is entitled to finality. Ms Broster submitted
that if the order is not made
conditional upon TEA being made
available, the occupiers might find themselves homeless. Mr
McMaster submitted that the City
could not comply with any order
directing it to provide TEA before the end of August 2020. It
thus also turned out to be
common cause that the City may be ordered
to make available TEA, but again the parties differed on the nature
of the order that
had to be made.
4.
I propose to stay as close as
possible to the approach adopted by the Constitutional Court in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd & Another
2012 (2) SA 104
(CC) (“Blue Light”)
,
particularly as summarised at paragraphs
[96]
to
[100]
.
5.
It would be just and equitable
if the order of eviction and the date whereupon it has to take place,
is linked to the provision
of temporary accommodation by the City.
The date upon which the eviction is to take place, must be linked to
a date on which the
City has to provide accommodation. The City
should also be required to provide accommodation some time before the
date of eviction,
in order to allow the occupiers some time and space
to be assured that the order to provide them with accommodation was
complied
with and to make suitable arrangements for their relocation.
6.
In the circumstances the date
upon which the eviction is to take place, will be linked to a date
upon which the City must provide
the temporary emergency
accommodation. The eviction cannot, however, be ordered to be
conditional upon the City providing such
accommodation. The applicant
was required to and did demonstrate a degree of patience since
November 2017. The applicant cannot
be expected to be burdened with
providing accommodation to the occupiers indefinitely. If
ordered to be conditional, the
obligation to provide accommodation is
made that of the applicant, and that is not what the Constitution
expects of an owner whose
property is unlawfully occupied.
7.
It follows that the eviction
order to be made is final in nature. It will also be coupled with an
order authorising the sheriff
to evict the occupiers if they do not
vacate by the date incorporated in the order. The occupiers are
thus made aware that
they are to be evicted from a certain date,
regardless of the City’s compliance with the order to make
accommodation available.
8.
The City was cited as
sixteenth respondent when this application was launched during
November 2017. The notice of motion required
the City to provide the
occupiers who would be rendered homeless by the eviction order with
temporary accommodation in a location
as near as possible to the area
where the property is situated.
9.
The City did not agree to the
eviction date acceptable to the applicant and the occupiers. Mr
McMaster contended for an additional
six-month period during which
the occupiers had to remain in occupation of the applicant’s
premises. This submission was
based on a report provided by the City
detailing that it needed a period of 24 months from the date upon
which the report was given
to accommodate the sixteen respondents. It
was stated thus:
“
66.
… there is no TEA immediately available for the occupiers.
An appropriate date for eviction and provision of TEA
will be after a
24 month period from the date of signature of this report”
.
The
report was signed on 1 August 2018, that is a year ago. The
City thus contends that eviction should not be ordered prior
to the
end of August 2020.
10.
It would not be just and
equitable to expect the applicant to accommodate the occupiers for
the full additional year that the City
requests. The applicant’s
concession to an additional six-month period, i.e. until the end of
February 2020, is just and
equitable. It would then have been
kept at bay by unlawful occupiers for a period exceeding two years,
with the City having
had notice of these eviction since November
2017.
11.
The obligation to provide
accommodation to the occupiers does not rest upon the applicant. It
is the obligation of the City to progressively
realise the right to
adequate housing within its available resources in terms of section
26 of the Constitution, 1996. The
City’s report reflects
a measure of frustration with court orders compelling it to provide
TEA. It was stated thus:
“
61.
The City’s position with regard to queue jumping and the
so-called knee jerk reactions by court’s to ordering the
City
to provide accommodation to unlawful occupiers in matters before them
without regard to others in need of TEA, is well documented”.
12.
The City is, however, not
required to do the impossible, but needs to demonstrate compliance
with its constitutional obligations
as far as possible. The
reasoning adopted by the Constitutional Court in
Soobramoney
v Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC)
is
still applicable, perhaps more so after two decades of constitutional
development increasingly expecting more of organs of state.
The
City is only required to provide what it can within its available
resources.
13.
The provision of the report,
now more than a year old, went some way in demonstrating that
compliance. The report does not make
for comfortable reading.
It paints a bleak picture of an organ of state struggling to find and
regulate accommodation for
an ever-increasing number of unlawful
occupiers, making ever-increasing and more militant demands.
When the City is ordered
to provide TEA, those evictees jump the
queue ahead of occupiers of other buildings waiting to be
accommodated. Then TEA
becomes permanent accommodation provided
by the City, as the recipients of TEA do not move on. In this
manner evictees do
become queue jumpers, albeit not queue jumpers in
the sense used by the Constitutional Court in
Blue
Light
[95]
.
14.
A balance must be struck. The
applicant cannot be further burdened, as I have already explained.
In
Blue Light
the Constitutional
Court ordered the City to make accommodation available and that order
was met, notwithstanding initial protestations
that it could not.
I consider myself compelled to make a similar order. If the
occupiers cannot be accommodated notwithstanding
the effluxion of
almost two years and the additional six months to be granted to the
City to find a solution, the City must convince
a court of that stark
reality or face the consequences of non-compliance with a court
order. To that end Mr McMaster requested
that the orders
incorporate a provision that the City could re-approach court if
unable to comply with the proposed order to make
TEA available.
Given the finality of the eviction order and the real possibility
that the City may not be able to comply
with an order to provide TEA,
I intend to accede to that request.
15.
The applicant requested that
the City be ordered to pay the costs on the scale as between attorney
and client. The City disputed
that it should pay any costs, but it is
true that the applicant was put to great lengths to bring this matter
to fruition. Although
the City’s report was helpful, it failed
to discharge its obligations with the promptness one would have
expected. In particular,
it failed to seek agreement with the other
parties at any stage after the matter was launched. Instead, it
remained inactive and
it was necessary for the applicant to approach
a court on 24 February 2018 for an order directing the
furnishing of the report.
The order was made in the City’s
absence. Then the report was filed later than the court order
required, without explanation.
The City’s current
attorneys of record was only instructed in May 2018. These
factors favour the granting of a costs
order.
16.
The applicant was, however, by
law compelled to accommodate the occupiers and had to turn to court
for an eviction order.
I consequently refrain from making a
costs order, as the City is also quite clearly under tremendous
pressure to comply with the
obligation to assist unlawful occupiers
with TEA. It is not that the City is sitting on its hands –
the report clearly
reflects the almost insurmountable problems it has
to overcome. But when cited as a respondent, the City knows
what will
be expected of it. The better the City participates
in legal process, the better orders courts will be able to craft in
eviction
proceedings. Refraining to make a costs order should
not be seen as condoning the City’s conduct in this matter.
It should be seen as encouraging the City to improve its efforts so
that a better life for all its inhabitants may progressively
become a
reality.
17.
I make the following orders:
17.1.
The following persons shall be
evicted from the respective living units occupied by them in the
dwelling house and outbuildings
situated at […] Street,
Hillbrow, Johannesburg (“
the
property”
):
17.1.1.
first respondent;
17.1.2.
second respondent;
17.1.3.
third respondent;
17.1.4.
fourth respondent;
17.1.5.
fifth respondent;
17.1.6.
sixth respondent;
17.1.7.
seventh respondent;
17.1.8.
eighth respondent;
17.1.9.
ninth respondent;
17.1.10.
tenth respondent;
17.1.11.
eleventh respondent;
17.1.12.
twelfth respondent;
17.1.13.
thirteenth respondent;
17.1.14.
fourteenth respondent;
17.1.15.
fifteenth respondent;
17.1.16.
seventeenth respondent;
17.1.17.
eighteenth respondent;
17.1.18.
nineteenth respondent;
17.1.19.
Ayanda Sphelele Majola;
17.1.20.
Luyanda Aneliswa Majola;
17.1.21.
Ayaphiwa Okuhle Majola;
17.1.22.
Aphelele Snothile Majola;
17.1.23.
Slindokuhle Muofhe Rabonda;
17.1.24.
all persons occupying the
property by, through or under the persons listed in subparagraphs
17.1.1 to 17.1.23
supra
.
17.2.
The persons listed in
subparagraphs 17.1.1 to 17.1.23
supra
shall vacate the respective living units occupied by them in the
dwelling house and outbuildings on the property, by 28 February
2020, failing which the sheriff for the area within which the
property is situated is authorised and required to forthwith evict
the said persons.
17.3.
The sixteenth respondent is
directed to notify the occupiers listed in Annexure “
X”
hereto, in writing
of the nature and location of the accommodation to be provided to
them by 7 February 2020.
17.4.
The sixteenth respondent shall
provide the occupiers listed in Annexure “
X”
hereto, with temporary emergency accommodation on or before 14
February 2020.
17.5.
The Executive Director or
Acting Executive Director: Housing of the City of Johannesburg
Municipality for the time being (“the
Director”) is
requested to personally oversee and take all the necessary steps to
assure compliance by the sixteenth respondent
with the orders granted
herein.
17.6.
The sixteenth respondent’s
attorney of record is directed to bring the contents of this order to
the attention of the Director.
17.7.
In the event that the
sixteenth respondent fails to comply with the orders in paragraphs
17.3 and 17.4 above, the applicant, the
persons listed in Annexure
“
X”
and
the City, represented by its Director, are given leave to re-enrol
the matter on a date and at a time agreed to between the
parties,
alternatively
a date determined by the registrar, for such further relief as may be
appropriate.
_______________
H VAN EEDEN
ACTING JUDGE OF THE
HIGH COURT
Counsel
for Applicant: Ms C Gordon
Instructed
by: Hooker Attorneys
Counsel
for First, Third to Sixth, Ninth, Twelfth to Fourteenth, Seventeen
and Eighteen Respondents: Ms E Broster
Instructed
by: Seri Law Clinic
Counsel
for Sixteenth Respondent: Mr G McMaster
Instructed
by: Kunene Ramapala Inc
Date
of hearing: 20 August 2019
Date
of judgment: 23 August 2019