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[2021] ZAGPJHC 171
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Tomma and Another v Ramoshai and Others (2021/13962) [2021] ZAGPJHC 171 (14 May 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 2021/13962
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
NO
14
May 2021
In
the matter between:
LORENZA
TOMMA
(in
her capacity as executor of the late estate of
Giorgio
Tomma)
1
ST
Applicant
BRIGITTE
TOMMA
2
ND
Applicant
And
LINDIWE
RAMOSHAI
1
st
Respondent
ASANDA
NAMBA
2
nd
Respondent
MICHELLE
NANDA
SNYMAN
3
rd
Respondent
ELIZABETH
MKETHI
4
th
Respondent
NOMVUYO
AGNES
NDIBI
5
th
Respondent
SINIKIWE
CHAKANUKA
6
th
Respondent
DANIEL
MVULA
7
th
Respondent
THOBEKILE
NDLOVU
8
th
Respondent
MLUNGISI
KHUMALO
9
th
Respondent
THOKOSANI
DUBE
10
th
Respondent
TYMON
SIBANDA
11
th
Respondent
NOLWANDLE
GWENDALINE NGCOBO
12
th
Respondent
LUNGA
MAGOPENI
13
th
Respondent
MARY
MOYO
14
th
Respondent
KHOMOTSO
KHEMETSWE
15
th
Respondent
SITHEMBILE
NDLOVU
16
th
Respondent
MAXWELL
GONES
17
th
Respondent
JUDGMENT
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e-mail. The date and time
for hand-down is deemed to be 14h00 on the 14
h
of May
2021.
DIPPENAAR
J
:
[1]
The
applicants seek urgent relief under section 18(3) of the Superior
Courts Act
[1]
(“the Act”)
for leave to execute pending an application for leave to appeal
lodged by the second to eighteenth respondents
in the original
application on or about 20 April 2021. They are cited in this
application as the first to seventeenth respondents.
They seek an
order that an eviction order granted by Justice Twala (“the
eviction order”) on 25 March 2021 in the urgent
court be
declared to be operative and executable pending the respondents’
application for leave to appeal and pending any
further appeal or
application for leave to appeal to any other court. The remaining
respondents in the proceedings before Twala
J, being the first
respondent and the nineteenth to twenty first respondents in the main
application, did not participate in the
urgent proceedings on 25
March 2021 and are not cited in these proceedings as respondents.
They are also not parties to the application
for leave to appeal.
[2]
The respondents seek the dismissal of the
application and raised three grounds of opposition: The respondents
disputed the urgency
of the application and raised the non- joinder
of the Economic Freedom Fighters (“EFF”) (a political
party cited as
first respondent in the proceedings before Twala J).
The main ground of opposition to the merits of the application was
that the
applicants did not meet the requirements of s18(3) of the
Act.
[3]
The matter was initially heard as an urgent
application. The eviction order was granted on 25 March 2021 in the
following terms:
“
1.
This application is enrolled, treated, heard and determined as an
urgent application as envisaged in 6(12) of the Uniform Rules
of this
Honourable Court and that the usual forms and time limits and
requirements for service as provided for in terms of such
uniform
rules of court, Practice manual and National Regulations to address,
prevent and combat the spread of Coronavirus (Covid-19)
be dispensed
with and/or that any non-compliance with such rules, practice manual
and National Regulations be condoned and/or waived
by this Honourable
Court;
2. The First, Second
and Third Respondents, those acting in concert with or through them
or pursuant to instructions from them,
are interdicted and restrained
from:
2.1.1. Intimidating,
threatening, assaulting the Applicants’ and restrained from
entering the premises of the Applicants’
situated at ERF [....]
RANDPARKKRIF EXT 31, PROVINCE OF GAUTENG, held under Deed of Transfer
Number: T[....] (hereinafter referred
to as “the property”);
2.1.2. Inciting
violence against the Applicants’, the property, the dwellers
and/or the tenants in good standing residing
in the property; and
2.1.3. Instituting,
inciting and executing in whichever way the monthly rental boycott by
dwellers and/or the tenants due to the
Applicants’.
2.2. The Third to the
Eighteenth Respondents and all persons holding occupation through
them (collectively referred to as ‘‘the
unlawful
occupiers’’) at the property; be evicted from the
property within 30 (thirty) days (or immediately thereafter)
of
granting of the order in terms of the provisions of section 5(1) of
the Prevention of Illegal Eviction from and Unlawful Occupation
of
Land Act, 1998 (hereinafter referred to as “PIE”);
2.3. The Third to the
Eighteenth Respondents and all the unlawful occupiers are ordered to
vacate the property within 30 (thirty)
days of granting of the court
order; and
2.4. In the event, the
Third to the Eighteenth Respondents and all persons who claim
occupation through and under them, fail to
vacate the property within
30 (thirty) days of granting of the court order, then the Sheriff or
his lawfully appointed Deputy as
far as it is necessary, is hereby
authorised and directed to evict therefrom and further be authorised
to request the assistance
of the Johannesburg Metropolitan Police
department to assist him/her in the eviction and removal of the Third
to Eighteenth Respondents
and all persons who claim occupation
through and under them from the property.
3. Interdicting and
restricting the Third to Eighteenth Respondents collectively from
unlawfully occupying the property, alternatively
any part thereof
from date of this court order and contrary to the Applicants’
decision to close access thereto post the
eviction; and
4.
No order as to costs.
”
[4]
In the application for leave to appeal, the
respondents were represented by a Mr Zuko Madikane, a representative
of Lawyers for
Black People (NPC) (“LBP”). Mr Madikane is
not a qualified attorney. The applicants contended that the
application
for leave to appeal was thus a nullity. It was argued
that the respondents were not properly represented and the
application was
unopposed. I do not agree with the latter submission.
A notice of intention to oppose had been filed by attorneys
representing
LBP, representing the respondents prior to the hearing.
At the hearing, the respondents were represented by counsel on brief
from
those attorneys. The application thus proceeded on an opposed
basis.
[5]
The order in the urgent Court was granted
on an unopposed basis. No intention to oppose or answering papers
were delivered. It was
argued that an application for leave to appeal
was thus not competent.
[6]
The applicants relied on substantially the
same grounds of urgency raised in the urgent proceedings before Twala
J. They contended
that those same grounds rendered the current
application urgent as there was still a rental boycott by tenants,
the applicants
were still under threat of physical attack and
intimidation pursuant to a severe physical attack on the second
applicant and they
were still in fear as a result to return to the
property and were in hiding at an undisclosed location.
[7]
The respondents dispute urgency on the
grounds that the respondents were being made to suffer for the
conduct of the EFF and the
applicants’ reliance on the same
grounds of urgency as in the proceedings before Twala J was
misplaced.
[8]
The
primary question which must be answered is whether the applicants
have illustrated that they will not obtain substantial redress
at a
hearing in due course.
[2]
In my
view, the applicants made out such a case. Considering all the facts
and the ongoing risk of harm, I am not persuaded that
there is merit
in the respondents’ contention and I am satisfied that
sufficient urgency has been illustrated to entertain
the application.
The applicants further illustrated sufficient urgency, both
commercial
[3]
and otherwise to
justify the enrolment of the matter on the urgent roll.
[9]
I am further not persuaded that there is
merit in the respondents’ contention that the EFF should have
been joined as a party
to the present application. The EFF, although
served with the original application, did not oppose it. Interdictory
relief was
granted against the EFF. There is merit in the applicants’
contention that the EFF has distanced itself from the conduct of
its
offending members by not opposing the application.
[10]
The application for leave to appeal is
aimed against the granting of the eviction order, not against the
interdictory relief. I
am not persuaded that the EFF thus has a
direct and substantial interest in the present application, having
elected not to oppose
the interdictory relief sought and obtained
against it in the Twala order.
[11]
It was common cause that the first
applicant is the executrix of her late husband, the registered owner
of an immovable property,
Erf [....] Randparkrif, bordering on John
Voster Road entrances 31a 31b and 31c, Randparkridge, Johannesburg
(“the property”).
The second applicant is her daughter.
The applicants both resided on the property and let out rooms on the
property to tenants.
[12]
The respondents, with exception of the
first respondent, all occupied the property in terms of partly oral
partly written leases.
The applicants confirmed that the lease
agreements have been cancelled. This averment was not disputed by the
respondents.
[13]
The first and second respondents are the
main agitators in commencing a rental boycott by the respondents,
resulting in payment
not being received from the respondent tenants
for a period of some five months since December 2020. One of the
respondents is
operating an illegal crèche from the property.
Intimidation is ongoing amongst the remaining tenants. Due to
intimidation,
it is likely that tenants in good standing may join the
rental boycott. The first respondent is not an occupier on the
property
but is an EFF member who has attended the property on
numerous occasions. One of the respondents has caused damage to the
property
in respect of which a charge of malicious damage to property
was laid with the South African Police Services, which is currently
pending. An assault has taken place on the premises when certain
armed EFF members attacked and assaulted the applicants, especially
the second applicant, resulting in her hospitalization and an
operation for a fractured nose. The applicants have vacated the
property and are staying in an undisclosed location, too fearful to
return as they have been threatened with further attacks, rape
and
murder. The respondents have associated themselves with the
intimidation and threats made against the applicants and have
persisted in illegal gathering both inside and outside the property.
[14]
The
requirements for the exceptional relief under s 18 (3) are more
onerous than at common law
[4]
.
In terms of section 18 (1) and (3) of the Act, the applicant must
meet the following requirements to be successful: (i) the presence
of
exceptional circumstances; (ii) in addition, that on a balance of
probabilities, they will suffer irreparable harm if the eviction
order is suspended, and conversely that the respondents will not
suffer irreparable harm if the eviction order is not suspended.
[15]
The salient provisions of ss 18(1) and (3)
of the Act provide as follows:
“
18.
Suspension of decision pending appeal
(1)
Subjection to sub-sections (2) and (3), and unless the court
under exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
…
(3)
A court may only order otherwise as contemplated in
sub-section (1) or (2), if the party who applied to the court to
order otherwise,
in addition proves on a balance of probabilities
that he or she will suffer irreparable harm if the court does not so
order and
that the other party will not suffer irreparable harm if
the court so orders.”
[16]
Under s.18(4)(ii) of the Act, if a court
orders that the initial decision will not be suspended, “…
the
aggrieved party has an automatic right of appeal to the next highest
court.”.
Under s.18(4)(iii),
“…
the court hearing such an
appeal must deal with it as a matter of extreme urgency.”
[17]
In
terms of s18(4)(i) of the Act, if a court orders that the initial
decision will not be suspended, the court must immediately
record its
reasons for doing so. The phrase “immediately” has not
been interpreted by the Supreme Court of Appeal to
envisage that
reasons be provided immediately once argument on the matter has
finished. Rather, it envisages that substantive and
considered
reasons must be provided at the time judgment is delivered to enable
an aggrieved party to appeal to the next highest
court.
[5]
.
[18]
It
is now settled that the respondents’ prospects of success in
the pending appeal is a relevant factor in considering whether
the
present application should be granted. As stated by Justice
Binns-Ward on behalf of a full court in
Minister
of Social Development Western Cape v Justice Alliance
[6]
,
quoted with approval in
University
of the Free State v Afriforum and Another
[7]
:
“
It follows that
the less sanguine a court seized of an application in terms of
s 18(3) is about the prospects of the judgment
at first instance
being upheld on appeal, the less inclined it will be to grant the
exceptional remedy of execution of that judgment
pending the appeal.
The same quite obviously applies in respect of a court dealing with
an appeal against an order granted in terms
of s 18(3). The
position is very much akin to that which pertains when interim
interdictory relief pending a judicial review
is being considered”.
[19]
As
a starting point it is apposite to state that exceptionality is fact
specific and a conclusion that exceptional circumstances
exist in a
given case, is not a product of a discretion, but a finding of
fact.
[8]
[20]
Interpretive
guidance to the concept of “exceptional circumstances” is
provided by the approach adopted by the Full
Bench of this court in
Nyathi
and Others v Tenitor Properties (Pty) Ltd, In re
:
Tenitor
Properties (Pty) Ltd v Nyathi and Others
[9]
, wherein it was stated:
“
In the context
of the present matter we approach the concept of "exceptional
circumstances" in the following way.
First, by definition,
these words have a wide berth. Second, that notwithstanding, it would
be wrong to approach the assessment
of the concept on the basis that
the appeal has or does not have a prospect of success, one way or the
other, because all appeals
will either succeed or fail.
Put
differently, the
fact that an appeal has a weak
prospect of success c
annot be exceptional;
that happens all the time.
Third, it follows that
the circumstances
, for them to be
exceptional,
must as far as possible be neutral in
relation to the success prospects. Fourth, since the words have a
wide reach, the potential
harm that each side will suffer, if the
suspension issue goes against that side, is a relevant factor”.
[21]
The respondents’ answering papers in
bald terms raise issues pertaining to the poor living conditions on
the property and
a principle that no children are allowed. The
answering papers are further argumentative and replete with bald
denials, devoid
of primary facts to sustain them. The respondents do
not appear to assert any legal entitlement in relation to anyone to
their
continued occupation of the property. It is not contended that
they are lawful occupiers of the property. No facts are set out
regarding the personal circumstances of the respondents. No case was
further made out that any of the respondents would be rendered
homeless by the eviction order. It was not denied by the respondents
that they are embarking on a rental boycott. To the contrary,
they
admit that they are not paying any rentals to the applicant. No valid
justification was put up for them doing so, other than
a vague
reference to living conditions being poor.
[22]
The
applicants have had no compensation for the period of deprivation of
the property. Some of the occupants of the property have
not paid for
their occupation for a period in excess of five months, nor has
anyone else been paying for such occupation, whilst
enjoying the
continuous benefits associated therewith. This represents an
“
economical
aberration for which there is, objectively no justification”
[10]
.
[23]
Not only have the respondents excused
themselves completely from the obligation to contribute to the roofs
over their heads and
the services which they enjoy, but they have
influenced others to join their position.
[24]
The respondents have further threatened and
harassed the applicants and have on occasion seriously assaulted the
second applicant.
Threats of further violence, including rape and
murder have also been made, resulting in the applicants being too
fearful to return
to their home. On the papers, it has not been
controverted that there has been a level of aggression and
intimidation which falls
foul of the founding values of the
Constitution and the rule of law.
[25]
The respondents challenge the existence of
exceptional circumstances on the basis that there is no threat of
imminent harm because
the applicants are not staying on the property.
In doing so, the respondents fail to appreciate or address the
position of the
applicants and the prejudice which they suffer, not
only in relation to the fear they experience as a result of the
threat of serious
future attack and their inability to return home as
a result but also in relation to their ongoing financial loss.
[26]
In
considering the issue the Supreme Court of Appeal has confirmed that
the prospects of success on appeal is a relevant factor
which must be
taken into account.
[11]
[27]
The respondents’ application for
leave to appeal is part of the record. It is accompanied by an
affidavit aimed at explaining
why the respondents were not present at
the hearing. No explanation is proffered why the application was not
formally opposed or
why no answering papers were not filed. The
application for leave to appeal is irregular in its form and does not
conform with
r 49(1). It was admittedly drafted by Mr Madikane, who
as confirmed by the Legal Practice Counsel, is not a legal
practitioner.
The validity of the application for leave to appeal is
thus in dispute, as at the time, the respondents were not represented
by
an attorney.
[28]
No affidavits were filed by the respondents
in the eviction application and determined by Justice Twala. In the
application for
leave to appeal, numerous issues are further raised
which were not raised in the proceedings before Twala J. The high
water mark
of the application is that certain respondents attended
court on the day of the hearing but could not find the court. When
they
made contact with the applicants’ attorneys, they were
advised that an order had been granted. It is thus doubtful whether
an application for leave to appeal is competent. In the application
for leave to appeal, it was contended that the court did not
exercise
judicial oversight over the proceedings. This contention lacks merit
as the respondents, having chosen not to oppose the
proceedings, did
not place any relevant information before court for consideration.
[29]
Considering that the order granted by Twala
J was made by default, in the absence of any opposition, answering
papers or appearance
by the respondents, the prospects of success on
appeal are poor. I agree with the applicants that the application for
leave to
appeal is procedurally defective. No rescission application
was launched by the respondents.
[30]
Whilst
individually each of the above circumstances may not qualify as
“exceptional”, such circumstances, once seen
cumulatively, are indeed exceptional for purposes of s18(3).
[12]
I am thus satisfied that the applicants have illustrated exceptional
circumstances.
[31]
A
consideration of the respective potential harm that each side will
suffer if the suspension order is granted adverse to it, envisages
two distinct enquiries
[13]
.
[32]
On the facts presented and already referred
to I am persuaded that the applicants have illustrated irreparable
harm if the application
is not granted. The respondents’
contention that the applicants have not illustrated such harm as they
live in a safe location
and not at risk for rape or murder, lacks
merit and disregards the very fact that they have been forced to live
in hiding because
of the threats of rape and murder. The argument
also disregards the intimidation of the applicants by the
respondents.
[33]
The
respondents did not contend for any prejudice if the present
application is granted. It was conceded during argument that the
applicants have satisfied this requirement. The respondents have
placed no information before the court to determine their personal
circumstances. They were afforded an appropriate opportunity to do
so. No information is given pertaining to the financial circumstances
of the respective respondents. Significantly, none of the occupiers
put up any facts justifying a conclusion that they will be
rendered
homeless if evicted, nor did they contend that they will be rendered
homeless if the order sought is granted. They have
further not
averred that they are indigent and cannot afford to pay rent. The
occupiers have organised themselves into a body that
has seen fit to
take the law into their own hands. Such conduct is repugnant to the
Constitution and the Rule of Law
[14]
.
[34]
For the reasons stated above, I find that
the applicants have satisfied the requirements of ss18(1) and (3) of
the Superior Courts
Act in demonstrating exceptional circumstances
and that they will suffer irreparable harm if the eviction order is
suspended whereas
the respondents will not suffer irreparable harm if
the eviction order is not suspended. It follows that the applicants
are entitled
to the relief sought.
[35]
The normal principle is that costs follow
the result. There is no reason to deviate from this principle.
Although the conduct of
the respondents may well justify the granting
of a punitive costs order, as sought by the applicants, I have been
persuaded not
to accede to such request.
[36]
I grant the following order:
[1] The order granted by
Justice Twala under case number 2021/13962 is declared to be
operative and executable pending finalisation
of the respondents’
application for leave to appeal and pending any further appeal or
application for leave to appeal to
any other court;
[2] The respondents are
directed to pay the costs of the application jointly and severally,
the one paying, the other to be absolved.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
: 10
May 2021
DATE
OF JUDGMENT
: 14
May 2021
APPLICANT’S
COUNSEL
:
Adv. S. Vobi
APPLICANT’S
ATTORNEYS
:
Mudenda Inc.
RESPONDENTS’
COUNSEL
:
Adv. Mbeki
REDPONDENT’S
ATTORNEYS
:
Mndiyata Attorneys
[1]
10
of 2013
[2]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September
2011)
[3]
Luna Meubelvervaardigers (Edms) Bpk v Makin(t/a Makin’s
Furniture Manufacturers
1977 (4) SA 135
(W) at 137F; IL&B Marcow
Caterers(Pty) Ltd v Greatermans SA Ltd; Aroma Inn (Pty) Ltd v
Hypermarkets (Pty) Ltd
1981 4 SA 108
(C) at 110G
[4]
Ntlemeza
v Helen Suzman Foundation and Another [2017] ZASCA 93; [2017] 3 All
Sa 589 (SCA)
[5]
University
of the Free State v Afriforum and Another
2018 (3) SA 428
(SCA) at
paras [27]-[28]; Ntlezema v Helen Suzman Foundation 2017(5) SA 402
(SCA)
[6]
[2016] ZAWCHC 34(
1
April 2016
[7]
S
upra
at paras [14]-[15]
[8]
Incubeta
Holdings (Pty)
Ltd and Another v Ellis and Another
2014 (3) SA 189
(GSJ) paras [18] and [22]
[9]
(06579/2015)
[2015] ZAGPJHC 115 (9 June 2015) at paras [29]-[31]
[10]
Nyathi
supra para [32].
[11]
University
Free State v Afriforum supra
[12]
Nyathi
supra para 45
[13]
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189
(GJ)
[14]
Ngqykaumba
v Minister of Safety and Security and Others
2014 (5) SA 112
(CC)
para [21], as quoted in Teaca Properties (Pty) Ltd and Others v
Banza and Others [2018] ZAGP 72 (9 February 2018)