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[2010] ZAGPPHC 575
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Mamelodi Hostels Residents Association and Others v City of Tshwane and Others (69345/2009) [2010] ZAGPPHC 575 (4 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO:
69345/2009
DATE: 4 FEBRUARY
2010
IN THE MATTER OF:
THE MAMELODI
HOSTELS RESIDENTS
ASSOCIATION
..........................................
1
st
APPLICANT
DANIEL
SELLO
.....................................................................................................................
2
nd
APPLICANT
THOSE PERSONS
LISTED IN ANNEXURE
A
.................................................................
3
rd
APPLICANT
AND
THE CITY OF
TSHWANE
...............................................................................................
1
ST
RESPONDENT
MINISTER OF
SAFETY AND
SECURITY
....................................................................
2
nd
RESPONDENT
THE COMMISSIONER
OF
POLICE
..............................................................................
3
rd
RESPONDENT
THE MEC FOR HUMAN
SETTLEMENT,GAUTENG
.................................................
4
th
RESPONDENT
THE STATION
COMMISSIONER FOR MAMELODI POLICE
STATION
.............................................................................................................................
5
th
RESPONDENT
THE MUNICIPAL
MANAGER OF TSHWANE. MR KIBE
KEKANA
..............................................................................................................................
6
th
RESPONDENT
MAPULE
PHORA
..............................................................................................................
7
th
RESPONDENT
YVONNE
MATJOKANE
...................................................................................................
8
th
RESPONDENT
JUDGMENT
OMAR, AJ
[1] This is an
urgent application concerning the residents of Block J. Mamelodi
Hostels. It is common cause that the first respondent
embarked on a
demolition process of Block J on Sunday. 15 November 2009 by removing
roof material. It is further common cause that
members of the SA
Police Services were present at the demolition.
[2]
The first respondent's conduct prompted the applicants to lodge an
urgent application in this court on 16 November 2009. claiming
in
essence relief based on the
mandament
van spolie.
[3]
Although serv ice of the application was effected on the respondents,
none of the respondents appeared in court and a rule
nisi
with
interim relief was granted by my brother Acting Judge R Du Plessis in
their absence. The return date of the rule
nisi
was
24 November 2009.
[4] The first
respondent anticipated the return date to 21 November 2009 and the
anticipation application was postponed to 25 November
2009 and costs
were reserved.
[5] The interim
order was not complied with and on 19 November 2009. the applicants
lodged a contempt of court application which
included four further
respondents who were not parties to the initial application.
[6] On 24 November
2009 the first respondent requested my brother Acting Judge Du
Plessis to recuse himself from the matter, to
which he consented.
[7] Both matters
were heard by me on 26 November 2009.
[8] The applicants
concluded a settlement agreement with the second and third
respondents as well as the fifth respondent in the
contempt
application which settlement agreement was made an order of court on
26 November 2009.
[9] The issues
before the court are the following:
a)
Confirmation alternatively discharge of the rule
nisi.
b) The contempt
application.
[10]
I will deal with the various issues
in
limine
during
the course of my judgment.
[11] It was
contended by counsel for the first respondent that the actions of the
first respondent do not constitute spoliation
and that the applicants
consented to the demolishment. The court was referred to numerous
agreements between the first respondent
and the Mamelodi Hostel
Residents Committee, which forms part of the papers before the court,
dating back from 1 September 2003.
whereby it was agreed to implement
the Hostel Development Project.
In line with the
first respondents Housing Project, it embarked upon the relocation
process of the hostel residents in which the
residents of single
gender hostels would be relocated to Temporary Residential Units
(TRU's) whilst permanent structures w'ould
be constructed. Further
the existing hostel is uninhabitable and unsafe for human occupation.
[12] I cannot find
any provision in any of these agreements referred by counsel for the
first respondent, which entitles the first
respondent to proceed with
the demolishing of the hostel structures and particularly so while
the lawful residents are still in
occupation of the hostel and
without their consent.
[13] Whilst the
first respondents efforts to create better living conditions, is
appreciated by the applicants and the court, this
does not entitle
the first respondent to take the law into its own hands.
[14] Further, whilst
it is so. as argued by counsel for the first respondent that the
hostel structures were unsafe and uninhabitable,
the fact of the
matter is that there were people still living in these structures
and, in my view, the first respondent should
have applied for an
eviction order before embarking on a demolition process.
It is irrelevant for
purposes of this argument, that the first respondent has provided
alternative accommodation for 1200 occupiers.
[15] It is common
cause between the parties that the applicants have been in peaceful
possession of Block J Mamelodi Hostels until
Sunday 15 November 2009.
The actions of the first respondent in removing roof material from
the building whilst the applicants
were still residing in the hostel
constitute an unlawful deprivation of their possession.
[16] Further, the
first respondent acted prematurely in proceeding with its demolishing
process on 15 November 2009. as in terms
of its notice to the
residents, marked as annexure "DS2" to the founding papers,
the demolition process was only to begin
on 16 November 2009.
[17]
The applicants, through its attorneys, sent a letter to the first
respondent on 21 July 2009 (annexure “DS1") stating,
inter
alia,
that
they are prepared to move out of the hostels if they reach an
agreement with the first respondent about certain issues, which
includes obligations in terms of the Housing Code. Clearly this
indicates that there is no agreement between the applicants and
the
first respondent that the latter would be entitled to commence with
any demolishing process without the consent of the former.
[18]
It is also clear from the said letter that the first applicant has
established its
locus
standi
to
launch proceedings on behalf of the residents of the hostel.
Further,
the premises listed in annexure "A" to the papers are
occupants in the hostel and are clearly affected by the
demolition
process and as such have
locus
standi
to
launch proceedings.
The second applicant
has been mandated by the First and further applicants to act or sign
documents on its behalf which is clearly
indicated by annexures
"DS3’" to “DS29
”
of the
papers. The first respondent further does not deny the existence of
the first applicant.
[19]
As indicated earlier, a rule
nisi
with
interim relief was granted by my brother Acting Judge R Du Plessis.
He recused himself from the matter having been requested
to do so by
the first respondent. I cannot comment on the submission by counsel
for the first respondent that the dispute between
Acting Judge R Du
Plessis and the first respondent clouded his judgment. However it is
clear that Judge R Du Plessis considered
the urgency of the matter
and granted a rule
nisi.
[20] I have had the
benefit of hearing the first respondent's version and I am of the
view that the matter was urgent under the
circumstances. Clearly the
hostel residents were left without a roof over their heads.
[21]
I find that the first respondent's conduct in proceeding with the
demolishing of the hostel structures while the lawful residents
were
still in occupation and without their consent was unlawful and as
such, the rule
nisi
granted
by Acting Judge R Du Plessis on 16 November 2009 must be confirmed.
[22] As far as the
application for contempt is concerned. I have a number of problems:
a) Firstly, there is
no proof that the application has been properly served on the
respondents. Page 5 of the notice of motion indicates
that the
application was served on the respondents by fax and hand. This form
of service in my view does not conform to the rules
of this court.
There is, in any event, no proof that the application has even been
served by fax or by hand on all the respondents.
There is only an
acknowledgment by Moduka More that the document was received and
accepted without prejudice on 19 November 2009
at 10:10. Moduka More
is only the first respondent's attorneys of record.
b) Secondly, the
applicants have joined four (4) other respondents in the contempt
application who were not parties to the initial
application. I am of
the view that the applicants have failed to join the parties formally
in the proceedings. This constitutes
a misjoinder in my view and the
application stands to be dismissed on this ground alone.
This is not the
situation where a company Director could be held responsible for the
obligations of the company.
In my view, some of
the additional respondents have no relation to the first respondent
insofar as its obligations are concerned.
[23] In view of the
aforesaid I do not deem it necessary to deal with the issues relating
to urgency or the merits of the application.
Thus, I make the
following order:
1.
That the rule
nisi
granted
by this court on 16 November 2009 is hereby confirmed.
2. That the first
respondent pays the costs of this application on an attorney and
client scale including the costs of two counsel.
3. The contempt
application is dismissed with costs.
SS OMAR
ACTING JUDGE OF
THE HU+IGH COURT
CASE NO:
69345/2009
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
PRETORIA 01 DECEMBER
2009
BEFORE THE
HONOURABLE MR JUSTICE OMAR, AJ
In the matter
between:
THE MAMELODI
HOSTELS RESIDENTS
ASSOCIATION
..........................................
1
st
APPLICANT
DANIEL
SELLO
.....................................................................................................................
2
nd
APPLICANT
THOSE PERSONS
LISTED IN ANNEXURE
A
.................................................................
3
rd
APPLICANT
AND
TH
CITY OF
TSHWANE
....................................................................................................
1
st
RESPONDENT
MINISTER OF
SAFETY AND
SECURITY
.....................................................................
2
nd
RESPONDENT
THE COMMISSIONER
OF
POLICE
...............................................................................
3
rd
RESPONDENT
THE MEC FOR HUMAN
SETTLEMENT,
GAUTENG
.................................................
4
th
RESPONDENT
THE STATION
COMMISSIONER FOR MAMELODI POLICE
STATION
..............................................................................................................................
5
th
RESPONDENT
THE MUNICIPAL
MANAGER OF TSHWANE, MR KIBA
KEKANA
...............................................................................................................................
6
th
RESPONDENT
MAPULE
PHORA
…..........................................................................................................
7
th
RESPONDENT
YVONNE
MATJOKANE
....................................................................................................
8
th
RESPONDENT
HAVING HEARD
counsel(s) for the party(ies) and having read the documents filed of
record
IT IS ORDERED
1 THAT the rule nisi
granted by this Court on 16 November 2009 is hereby confirmed,
2. THAT the first
respondent pay the costs of this application on an attorney and
client scale including the costs of two counsel.
Contempt Application
- The application is dismissed with costs.
BY THE COURT
REGISTRAR
Att: GILFILLAN DU
PLESSIS
HIGH COURT TYPIST: H
POTGIETER