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[2013] ZAECPEHC 48
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Nelson Mandela Bay Municipality Maarman and Others, Nelson Mandela Bay Municipality Maarman and Others (2480/2012, 2591/2012) [2013] ZAECPEHC 48 (17 October 2013)
9
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 2480/2012
Date heard: 16.5.2013
Date delivered:
17.10.2013
In the matter between:
NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY (NMBMM)
...............................................................................
Applicant
vs
NONTSIKA MAARMAN
......................................................................
First
Respondent
MELISIZWE DABA
........................................................................
Second
Respondent
DAVID WILLEM
.................................................................................
Third
Respondent
SIPHIWO SIPHE TOMMY
................................................................
Fourth
Respondent
THEMBALETHU MHEKOLA
..............................................................
Fifth
Respondent
BABALWA SONJICA
........................................................................
Sixth
Respondent
LINDELWA MBOYI
.......................................................................
Seventh
Respondent
YOLANDE XANISE
..........................................................................
Eighth
Respondent
NONTSAPHO NDALISO
...................................................................
Ninth
Respondent
NTOMBOXOLO DYANTYI
................................................................
Tenth
Respondent
SIYABULELA JANUARY
............................................................
Eleventh
Respondent
Case no: 2591/2012
In the matter between:
NELSON MANDELA BAY
METROPOLITAN
MUNICIPALITY (NMBMM)
...............................................................................
Applicant
vs
NONTSIKA MAARMAN
......................................................................
First
Respondent
DAVID WILLEM
.............................................................................
Second
Respondent
SIPHIWO SIPHE TOMMY
..................................................................
Third
Respondent
NONTSAPHO NDALISO
.................................................................
Fourth
Respondent
NTOMBOXOLO DYANTYI
..................................................................
Fifth
Respondent
VUYO JANTJIES
................................................................................
Sixth
Respondent
XHATI MFUNDISI
..........................................................................
Seventh
Respondent
NOMATHAMSANQA ZEALAND
.....................................................
Eighth
Respondent
JUDGMENT
TSHIKI J:
[1] In the two matters,
case no 2480/2012 and case no 2591/2012 applicant has filed an
application against all the respondents contending
that they all had
unlawfully occupied applicant’s vacant land which is referred
to as no 9 and 10 Kwanobuhle, Uitenhage (herein
referred to as the
property). An interim order was then granted in favour of the
applicant and against all the respondents on 27
July 2012 wherein a
Rule
Nisi
was issued in the following terms:
[1.1] Calling upon the
respondents or any other interested party to show cause, if any, on
or before 14 August 2012 why an order
in the following terms should
not be made:
[1.1.1] That the
respondents or any other persons who are unlawfully occupying the
Gunguluza Area 11 should vacate forthwith;
[1.1.2] That the members
of the police based at Kwanobuhle Police station, Uitenhage, are
hereby authorised and directed to evict
the respondents and/or any
other persons found to be in occupation of Gunguluza Area 11,
KwaNobuhle Township and to deal with them
as they are lawfully
entitled and obliged to.
[2] That the members of
the police continue to patrol Guguluza Area 11 and remove any persons
that are in unlawful occupation thereof.
[3] That paragraphs 1.1
and 1.2 herein above operate as an interim order.
[4] A subsequent order
was granted which varied the terms of the order in paragraph 1 above
in that it authorised and directed the
Sheriff of this Court to evict
the respondents and/or any other person found in unlawful occupation
of the land described above
and, if necessary, the Sheriff would have
to enlist the assistance of the members of the South African Police
Service in Kwanobuhle
in Uitenhage.
[5] The respondents in
case no 2480/2012 have opposed the application by the applicant
herein. Their main defence is a denial of
having been in unlawful
occupation of the applicant’s land in question. The contention
of the respondents is that applicant
is confusing the respondents
with the members of Ward 43.
[6] According to the
applicant it later transpired that respondents one to five in case no
2480/2012 and other people were in contravention
of the Court order
dated 27 July 2012 in case no 2480/2012 and this contravention has
resulted in applicant approaching this Court
for a further order
inclusive of contempt of court proceedings. This application was
issued under case no 2591/2012 and on 14 August
2012, an order was
granted against respondents with a Rule
Nisi
calling upon the
respondents to show cause on or before 25 September 2012 why an order
in the following terms should not be made:
[6.1] That all persons in
unlawful occupation of the open areas in Khayelitsha and Kwanobuhle
Townships in Uitenhage be and are
hereby ordered to vacate forthwith;
[6.2] That the Station
Commander of Khayelitsha and Kwanobuhle police stations in Uitenhage,
be and are hereby authorised and directed
to assist the Deputy
Sheriff of this Court in effecting the order in 6.1 above;
[6.3] That the Station
Commander of the police stations mentioned in 6.2 above are hereby
authorised and directed to deploy officers
to patrol and monitor the
township; remove, arrest and take into custody any persons that are
in unlawful occupation thereof. Further
that paragraphs 6.1 to 6.3
above to operate as an interim order.
Although not specifically
stated, I would assume that this would have to be so pending the
final determination of the application.
[7] The contempt of Court
proceedings in case no 2591/2012 applied only in respect of the first
five respondents and did not affect
the sixth to the eighth
respondents. The application in case no 2591/2012 was also opposed on
the grounds that there has been no
contravention of any order in that
there was no interdict that was obtained and issued on 27 July 2012
under case no 2480/2012.
The rest of the contents of the order in
paragraph 6 above was simply denied without further elaboration.
[8] On the date of the
argument of the two applications (case no 2480/2012 and 2591/2012)
the parties agreed that the applications
be argued at the same time.
This was so because it is one case which has been unfortunately
allocated two case numbers. The parties
and the cause of action are
the same save for the contempt of Court proceedings which do not
apply to sixth to eighth respondents
in both cases.
[9] On the date of the
argument Ms N Msizi appeared for the applicant and Mr V Naidu
represented the respondents.
[10] Respondents denial
of the applicant’s allegations against them is that they never
committed any unlawful activities against
the applicant. For that
reason, applicant has not established the requirements of an
interdict in that applicant has not established
any prejudice
suffered either actual or perceived. A further argument by
respondents is that applicant has failed to establish
that the
alleged offences are of a continuing nature or that there is a
reasonable apprehension that these acts alleged against
the
respondents will be repeated in the future. Therefore, so the
argument continues, the applicant has not established any facts
justifying a reasonable apprehension that the harm is likely to be
repeated.
[11] I must say that I do
not understand the essence of the respondents’ argument because
the complaint against the respondents
was continuing in that
respondents were in actual and physical occupation of the land in
question. In my view, respondents’
bare denial is not
sufficient to resist the claims against them by the applicant.
[12] It is trite practice
that vague and unsubstantiated allegations are insufficient to create
the kind of dispute of fact which
would oblige the Court to either
dismiss the application or refer the matter for oral evidence (
King
William’s Town Transitional Local Council v Border Alliance
Taxi Association
(BATA)
2002 (4) SA 152
(ECD)).
[13] In the present case
it does not appear that the respondents have raised any serious
dispute of fact other than to allege that
they are denying the
applicant’s allegations that the respondents are in unlawful
occupation of the land in question. Even
on probabilities it would be
awkward and strange for the applicant municipality to go the extra
mile by having to approach attorneys
and the Court for something that
has not happened. Judging from the contents of the respondents’
affidavits, I cannot imagine
that the applicant would simply approach
this Court for something that has not happened.
Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
[2008] 2 ALL SA
512
(SCA) and 515 para 13 Heher JA stated:
“
A real,
genuine and
bona
fide
dispute
of fact can exist only where the Court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed. There will of
course be instances where a bare denial meets
the requirement because
there is no other way open to the disputing party and nothing more
can therefore be expected of him. But
even that may not be sufficient
if the fact averred lies purely within the knowledge of the averring
party and no basis is laid
for disputing the veracity or accuracy of
the averment. When the facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to
provide an answer (or countervailing evidence) if they be not true or
accurate but, instead
of doing so, rests his case on a bare or
ambiguous denial the Court will generally have difficulty in finding
that the test is
satisfied.”
[14] The above narration
applies to both the main application and the contempt of Court
proceedings whose denial by respondents
is a bare one and therefore
not genuine.
[15] I also do not agree
with Mr Naidu that applicant has not established the requirement that
there was no other remedy. In my
view, absence of a no other remedy
refers to absence of an adequate and speedy legal remedy (
Setlogelo
v Setlogelo
1912 AD 221
at 227;
Masuku v Minister van
Justisie en Andere
1990(1) SA 832 (A)). Applicant’s
property was being invaded by the respondents and without any lawful
justification. Self
help is not a remedy even if there is a need by
the poor people to obtain accommodation. I am therefore of the view
that the applicant
herein has established its case for a final
interdict. I do not agree with the respondents in their argument that
the orders sought
by applicant do not amount to or do not seek an
interdict. There is no substance in that allegation at all.
[16] On the contempt of
Court the averments by the deponent to the applicant’s
affidavit are clear that the first to fifth
respondents have even
mobilised other people to join them in the illegal occupation of the
applicant’s land. This evidence,
in my view, amounts to the
required proof in proceedings of this nature. The first and fifth
respondents in the contempt of Court
proceedings were interdicted in
case no 2480/2012 not to proceed with their unlawful conduct
aforementioned. They elected to disregard
the Court order, and, in my
view, they have done so at their peril. In
Mthimkulu and
Another v Mahomed and Others
2011 (6) SA 147
CJ Classen J
held at 154-155 para [17 and 18]:
“
[17] Once an
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
(weerleggingslas)
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
.
The rational for this requirement is to prevent committal (loss of
liberty) rather than conclusively.
[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 relief such as barring a contemnor from
access to civil courts until
the contempt is purged. In the present
case the appellants did not seek a committal, only a suspended fine.
The respondents’
liberty is not at stake.”
[17] There is evidence
from the applicant’s founding affidavit that “the first
to fifth respondents have mobilised other
people from Nobuhle and
Khayelitsha to join them in the illegal occupation of the land and in
threatening and demanding the allocation
of the plots to them”.
Evidence shows that respondents one to eight were served with the
order of the Court dated 27 July
2012 whose contents are that the
respondents are unlawfully occupying the Gunguluza Area 11 and that
they should vacate the land
forthwith and this was made an interim
order. These respondents did not vacate the land in question instead
they remained in occupation
and were mobilising other people to join
them in the unlawful occupation of the applicant’s land. It is,
therefore, clear
to me that the respondents in issue (1-5) have
violated the order of 27 July 2012. As is expected even in the
contempt of Court
proceedings their only defence is as follows:
“
Ad Paragraph
14
8. The content thereof is denied. The
respondents and I are committee members of the Back yard of Ward 45
as a whole. It is specifically
denied that the respondents as cited
and I are in unlawful occupation of Area 11, Gunguluza.
9 It is respectfully submitted that no
interdict was obtained on 27 July 2012 under case no 2480/2012.”
[18] What the respondents
say herein does not make sense to me. Paragraph 1.1 of the order
mandates them to “vacate the property
forthwith”. What
more is it expected of the applicant to do. What matters herein is
the terms of the order granted against
the respondents, whether it is
in the form of an interdict or mandamus and in whatever form it has
to be obeyed and complied with.
[19] I am satisfied that
the applicant has proved contempt of Court against the first to fifth
respondents in case no 2591/2012.
Wherefore, I make the following
order:
[19.1] In respect of case
no 2480/2012 the Rule
Nisi
granted on 27 July 2012 against
respondents herein is hereby confirmed.
[19.2] The first to fifth
respondents herein are declared to be in contempt of the order
granted by Chetty J on 27 July 2012.
[19.3] The first to fifth
respondents in case no 2591/2012 are each ordered to pay a fine of
R5 000.00 (five thousand rand)
or in default of payment of such
money to undergo two years imprisonment which is wholly suspended for
five(5) years on condition
that each respondent mentioned herein
above shall not again commit contempt of Court and occupy applicant’s
property without
consent or refuse to obey a Court order during the
period of suspension.
[19.4] The respondents in
case no 2480/2012 are ordered to pay costs of the application in that
case jointly and severally the one
paying the other to be absolved.
[19.5] The respondents in
case no 2591/2012 are ordered to pay costs of the application in that
case jointly and severally the one
paying the other to be absolved.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant
: Adv N Msizi
Instructed by : Pumeza
Bono Attorneys
PORT ELIZABETH
Counsel for the
respondents : Mr V Naidu
Instructed by : Legal Aid
Board
PORT ELIZABETH