About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2018
>>
[2018] ZAECPEHC 7
|
|
Ughala and Others v Laws Stores CC and Others (2645/2017) [2018] ZAECPEHC 7 (20 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.: 2645/2017
Date
Heard: 15 February 2018
Date
Delivered: 20 February 2018
In
the matter between:
PRINCE
CHIBUEZE UGHALA
1
ST
APPLICANT
VUYISA
NIKA
2
ND
APPLICANT
SUSAN
KARSHIPA
3
RD
APPLICANT
YOLLADENE
JACOBS
4
TH
APPLICANT
DAVIDENE
KILLAN
5
TH
APPLICANT
ZHONA
MNGAZA
6
TH
APPLICANT
SINAZO
TAYO
7
TH
APPLICANT
MELISSA
GROOTS
8
TH
APPLICANT
ASANDA
SIQONGANA
9
TH
APPLICANT
BONNY
GOBENI
10
TH
APPLICANT
CHUKWANA
EZE
11
TH
APPLICANT
SIMTHANDILE
GOLA
12
TH
APPLICANT
SISANDA
GOLIMPI
13
TH
APPLICANT
MIC
KYLAN
14
TH
APPLICANT
NOMFUSI
JILINGISI
15
TH
APPLICANT
PORTIA
BLOUW
16
TH
APPLICANT
SIBONGILE
MTYEKU
17
TH
APPLICANT
NOMACHIRE
JILINGISI
18
TH
APPLICANT
LEBOHANG
ZAYA
19
TH
APPLICANT
BUNTUZONKE
NDLALENI
20
TH
APPLICANT
PHILLIP
OLA
21
ST
APPLICANT
PINKY
KANTI
22
ND
APPLICANT
FATIMA
MOEHAPE
23
RD
APPLICANT
VUYISA
NIKA
24
TH
APPLICANT
HAPPY
KHUMALO
25
TH
APPLICANT
HAZEL
NJENGELE
26
TH
APPLICANT
CINDY
LOGAN
27
TH
APPLICANT
and
LAWS
STORES
CC
1
ST
RESPONDENT
NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
2
ND
RESPONDENT
JUDGMENT
EKSTEEN
J:
[1]
The
applicants were previously unlawful occupiers of a building situated
at 12 Western Road, Central, Port Elizabeth (the property).
On
14 November 2017 an eviction order was issued in this court which
required them to vacate the property within sixty days of
service
thereof. The eviction order was duly served on 28 November
2017. On 30 January 2018 the applicants launched
an application
to rescind the order. The applicants failed, however, to comply
with the eviction order and before the hearing
of the rescission
application they were evicted on 9 February 2018 with the assistance
of the South African Police Services in
terms of the eviction order.
On the same day the applicants launched the present application as a
matter of urgency in which
they seek interim relief pending the
finalisation of rescission of judgment application in the following
terms:
“
Suspending
the execution of the Order dated 14 November 2017;
Directing the First Respondent
forthwith to restore the Applicants to peaceful and undisturbed
possession of their home situate
at No. 12 Western Road, Central,
Port Elizabeth, Eastern Cape; and
Interdicting and restraining the First
Respondent from evicting the Applicants from the property.”
[2]
The
application for rescission was launched in the ordinary course.
No request was made to the respondents’ attorneys
to hold over
the execution of the eviction order pending the hearing of the
rescission application and no urgent relief was sought
in respect of
the stay of execution.
Background
[3]
The
background leading up to the application emerges from the papers
filed in the eviction application, the application for rescission
and
the urgent application presently serving before me. The first
respondent is the registered owner of the property purchased
on an
auction in 2007. It entered into a month-to-month verbal lease
agreement with the first applicant in terms of which
the first
applicant would pay to the first respondent a monthly rental of
R40 000. The first respondent remained liable
for the
rates, electricity and water of the property. The first
applicant took occupation of the building and let various
rooms in
the property to tenants, being the 2
nd
to 27
th
applicants. The 2
nd
to 27
th
applicants therefore occupied the building through the first
applicant. The rental agreement was honoured for a period of
approximately nine years until May 2016 when a fire broke out in the
property which extensively damaged the left wing of the property.
There is some dispute on the papers as to the extent of such damage,
however, the dispute is not material to the resolution of
the present
application.
[4]
The first
respondent contends that the first applicant denied members of its
maintenance team access to the building in order to
effect repairs
after the fire. The first applicant stopped making payment of
the rentals during or about June 2016.
Some discussion followed
in respect to repairs to the building and the non-payment of rent
which resulted in the first applicant
recommencing rental payments in
the amount of R13 000 in October 2016 and erratic payments
amounting in total to R16 000
over the period November 2016 to
February 2017. A final payment of R9 000 was made in March
2017 whereafter no further
rentals were paid.
[5]
The
condition of the building after the fire contravened a number of
municipal bylaws and National Legislation, noteably the National
Health Act. Notices followed from the municipality relating to
the dilapidated state of the building and the health hazards
presented by the condition of the property.
[6]
On 31 March
2017 the first respondent caused a notice to vacate to be forwarded
by its attorneys to the applicants. Numerous
requests to vacate
the building followed, but to no avail. In the circumstances
the first respondent launched proceedings
to evict the applicants in
August 2017.
[7]
A notice as
envisaged in section 4(2) of the Prevention of Illegal Eviction and
Unlawful Occupation of Land Act, 19 of 1998 (PIE)
was duly approved
by this court which prescribed the method of service to be followed.
The notice of motion in the eviction
application together with the
notice in terms of section 4(2) of PIE was duly served by the Sheriff
on the applicants in the prescribed
manner.
[8]
I pause to
record that in the urgent application presently serving before me the
2
nd
to 27
th
applicants denied that they ever received notice of the intended
eviction. This averment stands in stark contrast to the
averments set out in the application for rescission. In the
application for rescission the first applicant attested to the
main
affidavit on behalf of the remaining applicants, each of whom
attested to a confirmatory affidavit. The first applicant
records therein that the first respondent issued an eviction
application in 2017 and that “a meeting with some of the
tenants
was held to discuss (the) way forward”. They,
being all the applicants, thereafter approached their attorney and
instructed
him to negotiate a settlement on their behalf. They
entered an appearance to oppose the application but recommended that
the matter be settled. Their attorney, being the same attorney
currently representing the applicants in both the rescission
application and the present application entered an appearance to
oppose on behalf of “the respondents” in the eviction
application. In the eviction application the first applicant
was cited as first respondent whilst the remaining occupiers,
2
nd
to 27
th
applicants, were cited as the second respondent. The Nelson
Mandela Bay Metropolitan Municipality was cited as the third
respondent. Realising the error in the notice of opposition
which referred to all the respondents an amended notice of opposition
was filed on 31 August 2017 recording that the “first and
second respondents hereby give notice of their intention to oppose
the application”. The applicants were accordingly at all
material times aware of and represented in the eviction
proceedings. In the circumstances Mr
Ndamase
,
who appeared for the applicants in the present application
acknowledged, fairly in my view, that he was unable to argue that the
applicants had not received notice of the eviction proceedings.
[9]
The
eviction proceedings were initially enrolled for 5 September 2017.
It is instructive at this juncture to record that the
Nelson Mandela
Bay Metropolitan Municipality was cited as a third respondent in the
eviction proceedings “as an interested
party by virtue of its
constitutional obligations imposed on it in terms of section 26 of
the Constitution”. An order
was issued that the Nelson
Mandela Bay Metropolitan Municipality prepare a report providing the
court with facts so as to assist
the court in establishing whether or
not the third respondent has a duty to provide temporary emergency
accommodation to all persons
being evicted who have no alternative
accommodation and who would be rendered homeless. To this end
the eviction proceedings
were postponed from time to time to await a
full report from the Nelson Mandela Bay Metropolitan Municipality.
The report
was duly filed on 9 November 2017 and served on the
applicants’ attorney of record on the same day. The
applicants
however, filed no opposing papers in the eviction
application. On 14 November 2017 the eviction application was
heard as
an “uncontested opposed” matter. The
applicants’ attorney remained on record but did not appear on
the
date of hearing. On a consideration of all the facts placed
before him and the report from the Nelson Mandela Bay Metropolitan
Municipality the presiding judge was satisfied that it was just and
equitable, as envisaged in section 4(7) of PIE to order the
eviction
of the applicants. An order was accordingly made and issued
that the applicants were to vacate the property within
sixty days of
service of the order. The order was duly served by the Sheriff
on 28 November 2017. The presiding judge
made no order against
the Nelson Mandela Bay Metropolitan Municipality.
[10]
The
applicants showed no intention to comply with the order and
accordingly the first respondent’s attorney instructed the
Sheriff on 23 January 2018 to proceed with the eviction, presumably
upon the expiry of the sixty day period stipulated in the order.
The rescission application, as recorded earlier herein, was launched
on 30 January 2018 in the ordinary course. The rescission
application remains pending.
Urgency
[11]
The first
respondent has in its papers before me challenged the urgency of the
application. It is argued that the applicants
have known for
many months of their pending eviction. Reference is made to the
notice to vacate which was delivered in April
2017, the service of
the application and the section 4(2) notice to which I have referred
earlier, the delivery to their attorneys
of record of the report by
the Nelson Mandela Bay Metropolitan Municipality and the service of
the order. On this basis it
was submitted that such urgency as
there may be is self-created. In my view there is no merit in
this challenge. The
applicants were evicted on 9 February 2018
and on the same day launched their application to redress the
situation. I am
accordingly of the view that the matter is
urgent and that the applicants were justified in enrolling the
matter.
Suspension
of the execution of the order dated 14 November 2017.
[12]
Whilst
there was initially some debate surrounding the courts inherent
discretion to suspend the operation of an eviction order
granted by
it, it is now settled that the court does have such an inherent
discretion. (See for example
EP
Du Toit Transport (Pty) Ltd v Windhoek Municipality
1976 (3) SA 818
(SWA); and
Belmont
House (Pty) Ltd v Gore and Another NNO
2011 (6) SA 173
(WCC) at 178B-C.) This power is confirmed by
the provisions of Rule 45A of the Uniform Rules of Court. It
has been
held that Rule 45A bestows upon the court the power to
exercise an equitable discretion to grant a stay of execution in
appropriate
circumstances. (See for example
Firm
Mortgage Solutions (Pty) Ltd v Absa Bank
Ltd and
Another
2014 (1) SA 168
(WCC).)
[13]
A stay of
execution serves to preserve the
status
quo
for
a predetermined period or pending some future event. What the
applicants seek in the present matter, however, is not
a stay of
execution to preserve the
status
quo
,
but rather an order setting aside the execution which has already
occurred so as to reinstate the
status
quo ante
.
I have had regard to numerous authorities where the court has
suspended the operation of an eviction order. I am unable
to
find any decision, nor have I been referred to any decision, where
such relief has been granted after the execution has already
occurred
so as to reinstate the
status
quo ante
(compare
Voortrekker
Pers Beperk v Rautenbach
1947 (2) SA 47
(A);
Lovius
and Shtein v Sussman
1947 (2) SA 241
(O);
Potgieter
and Another v Van der Merwe
1949 (1) SA 361
(A);
Van
Reenen v Kruger
1949 (4) SA 27
(T);
Gois
v Van Zyl
2011 (1) SA 148
(LC) and
Firm
supra
).
[14]
In
Le
Roux v Yskor Landgoed (Edms) Beperk en andere
1984 (4) SA 252
(T) Ackerman J held that a court did not have such a
wide discretion that it could order the setting aside (as opposed to
the suspension)
of execution of a judgment on the grounds of justice
and fairness where the
causa
for the execution still existed. I am in respectful agreement
with the reasoning of Ackerman J. In the present matter the
relief
sought is interim in nature pending the rescission of the eviction
order. The eviction order, being the
causa
for the
execution remains valid and binding until rescinded. In these
circumstances I do not think that the court has a discretion,
whether
under Rule 45A or at common law to set aside the execution which has
already occurred.
[15]
Mr
Ndamase
recognised this difficulty. He argues, however, that in the
event of the further relief being first granted and the applicants
being reinstated in occupation an order suspending the further
execution of the order thereafter would be competent. I turn
therefore to consider the further relief.
Restoring
the applicants to peaceful and undisturbed possession.
[16]
The order
sought herein is in essence a spoliation order. The Mandament
van Spolie entitles a person who has been unlawfully
deprived of his
possession to be reinstated to his former position before all else,
i.e before any question of title is considered.
The difficulty
which faces the applicants in the present matter is that their
deprivation of possession occurred in consequence
of a lawful process
and an order of court. The dispossession was therefore not
unlawful and the question of title has already
been considered.
For as long as the eviction order remains in force, as it does, it
seems to me that the applicants’
occupation of the property
remains unlawful. In these circumstances I do not consider that
I have the discretion pending
the hearing of the rescission
application to reinstate the applicants to their former position in
the face of a valid order of
this court which remains in force.
[17]
Mr
Ndamase
argues, however, that the applicants are entitled to an interim
interdict reinstating them in occupation pending the hearing of
the
application for rescission on the ordinary principles of the law
relating to interdicts. The argument proceeds, as I
understand
it, from the premise that an application for the rescission of the
eviction order, being the
causa
for the execution, is pending. It is argued that the
application attacks the underlying
causa
for the eviction and holds reasonable prospects of success in that
the order was erroneously sought and erroneously granted in
the
absence of the applicants. I express no view on the prospects
of success in the application for rescission which is not
before me.
The applicants contend, however, that a substantial injustice has
already occurred in that the applicants have
been evicted and are
unable to afford alternative accommodation unassisted. For this
reason the harm suffered by the applicants
is likely to continue in
the event that the execution order is not set aside and such harm
would be irreparable.
[18]
I
acknowledge without reservation that the facts of the present matter
necessarily evoke considerable sympathy for the applicants,
as is the
case with every unlawful occupier who is evicted under similar
circumstances. Whether, an injustice has occurred
depends upon
the validity of the argument raised in respect of the rescission of
the order. In the event that the eviction
order was properly
granted, and I must assume for present purposes that it was, it
cannot be said that an injustice is done.
[19]
Mr
Ndamase
argues that the applicants have demonstrated a
prima
facie
right to be reinstated in occupation by virtue thereof that the
eviction order was erroneously sought and erroneously granted in
their absence and that the applicants have filed an application for
rescission. I have given careful consideration to the
submissions made, however, I am unable to agree.
[20]
In
the present matter the event causing the alleged irreparable harm,
being the eviction, has already occurred. An interdict
can only
be granted to prevent future conduct and not conduct which has
already occurred. For this reason, the Constitutional
Court
held in
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012] JOL 29422
(CC) at para [50]:
“
An
interdict is meant to prevent future conduct and not decisions
already made. Quite apart from the right to review and to
set
aside impugned decisions, the applicants should have demonstrated a
prima
facie
right that is threatened by an impending or imminent irreparable
harm. The right to review the impugned decisions did not
require any preservation
pendente
lite.
”
[21]
I consider that these comments
are equally apposite to the present application. For these
reasons I consider that the applicants
have failed to establish a
prima facie right to the relief sought.
[22]
In the result, the
application is dismissed with costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv Ndamase instructed by JCM Attorneys, Port Elizabeth
For
First Respondent: Adv
Ah-Shene instructed by Karsan Inc c/o Goldberg & De
Villiers Inc,
Port Elizabeth