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[2021] ZAECPEHC 52
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Super Four Developers CC v Mallick and Others (1570/2020) [2021] ZAECPEHC 52 (4 October 2021)
Not
reportable
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
CASE
NO.: 1570/2020
In the matter between:
SUPER FOUR DEVELOPERS
CC APPLICANT
and
MOEGAMAT AZMIE
MALLICK FIRST
RESPONDENT
ANDRÉ JAMES LE
ROUX SECOND
RESPONDENT
NOLEEN
MEYER THIRD
RESPONDENT
NATASHA ALARICE
AUGUSTUS FOURTH
RESPONDENT
GIFT FIFTH
RESPONDENT
AMANDA SIXTH
RESPONDENT
JOHN SEVENTH
RESPONDENT
ISAAC
(RASTA) EIGHTH
RESPONDENT
OCCUPERS OF ERF 1588
AND ERF
1620 MOUNT ROAD (11
FETTES ROAD,
NORTH END, PORT
ELIZABETH) NINTH
RESPONDENT
NELSON MANDELA BAY
MUNICIPALITY TENTH
RESPONDENT
REASONS
FOR JUDGMENT
Govindjee
AJ:
Background
[1] The
applicant sought an order of eviction against the first to ninth
respondents (‘the respondents’), in terms
of the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act, 1998 (‘PIE’).
[1]
[2] The
application was argued on 29 July 2021 and the following Order was
handed down on 24 August 2021:
‘
1.
An eviction order is granted against the First to Ninth Respondents
(‘the Respondents’), being unlawful occupiers
of Tulbagh
Flats, 11 Fettes Road, North End, Gqeberha (‘the property’).
2. The
eviction order may be enforced if the Respondents do not vacate the
property within 60 (sixty) days from the date
of service of this
order at the property.
3.
The
Sheriff of this Honourable Court is authorised to enlist the
assistance of any person, including the members of the South
African Police Services, to assist him / her in the eviction of the
Respondents in the event that the Respondents fail to vacate
the
property within 60 (sixty) days from the date of service of this
order at the property.
4.
The
Respondents are directed to pay the costs of the application jointly
and severally, the one paying the others to be absolved.
5.
Adv
D Skoti and Mr Z Madikane are directed to file affidavits within 14
(fourteen) days to explain their non-compliance with the
orders of
Revelas J (22 April 2021) and Gqamana J (17 June 2021), and
why the wasted costs occasioned by the postponement
of the
matter on 22 April 2021 should not be paid by them,
jointly and severally,
de
bonis propriis
.
6.
Mr
Z Madikane is to ensure that this Order is brought to the attention
of Adv D Skoti, and to confirm this by way of affidavit.
7.
The
wasted costs occasioned by the postponement of the matter on 22 April
2021 remain reserved.’
The
reasons for the Order follow.
[2]
The
Facts
[3] The
applicant purchased the property from the Salvation Army on 29 July
2019. The property consists of a main block of
flats in which there
are seventeen units and one separate unit built above three
undercover garages at the back of the property.
Registration of the
transfer took place on 18 September 2019, so that the applicant is
the registered owner of the property.
[3]
[4] According
to the applicant, the property had been taken over by unlawful
occupiers so that the Salvation Army had effectively
lost control of
the building.
[4]
It purchased
the property with the intention of renovating and upgrading the
buildings and units so that they could be leased.
[5] Pursuant
to purchasing the property, the applicant attempted to identify the
occupants of the various units and established
that a number of
occupiers were paying rental to a person known as ‘Rasta’,
who resided in the back unit of the property.
The applicant claimed
that the respondents were not occupying the property with the consent
of either the Salvation Army or the
applicant, so that they were
unlawful occupiers as defined in PIE.
[5]
[6]The
applicant averred that it was unable to commence with its intended
renovations to the property, and that the building was
falling into
disrepair.
[6]
In addition, the
applicant indicated that it was incurring holding costs in the form
of rates and taxes, and was liable for municipal
service charges in
respect of water, electricity, sewerage and refuse removal. These
services were being utilised by the respondents.
No income could be
obtained as none of the units could be leased out.
[7]
[7] The
applicant obtained an Order on 1 September 2020 grating it leave to
serve the section 4(2) PIE Notices (in English,
Afrikaans and
isiXhosa) on the respondents in ways other than through personal
service. The matter was subsequently postponed on
various occasions.
[8] The
respondents filed a single answering affidavit, deposed to by
Thandokazi Maphukata, in opposing the relief sought by
the applicant.
This affidavit called for the tenth respondent (‘the
municipality’) to file a report prior to eviction,
and alluded
to the municipality’s duty to provide temporary emergency
accommodation to all person being evicted who had no
alternative
accommodation. Little of the applicant’s founding affidavit was
disputed. Ms Maphukata indicated that she had
occupied the property
in 2016 and paid rent of R1000,00 per month at that time. She
confirmed that she had not been tasked to make
averments on behalf of
‘Rasta’ and that he should answer for himself, accepting
that he was not an agent of the applicant
and was unauthorised to
lease out units and / or collect rental from persons occupying the
units on the property.
[9] Ms
Maphukata denied that the occupiers were violent people and indicated
that ‘many of the occupiers are unemployed
persons’ and
that ‘the Respondents are not barbaric and arrogant people and
the continued occupation in the property
is not to frustrate or
deprive the applicants of their rights over their property, but are
occupying because the property is primary
residence to the
respondents and minor children who will be rendered homeless and
destitute if the eviction is carried out in the
manner which the
applicant seeks.’
[8]
[10] A
‘mandate’ document attached to the answering affidavit,
signed by four occupiers as ‘the committee
and community of
Occupiers of Erf 1588 and 1620 Mount Road’ purportedly granted
permission to Ms Maphukata to litigate on
their behalf as an elected
community leader. Various documentation relating to children residing
at the premises, and including
birth certificates, was attached to
the answering affidavit. No confirmatory affidavits were appended.
[11]
The applicant’s replying affidavit raised its concerns with the
‘committee’ that had granted permission to
Ms Maphukata
to depose to the answering affidavit. It noted that the deponent had
failed to disclose the identity of persons occupying
the seventeen
units of the property and had not set out the personal circumstances
of those persons so as to assist the court in
making a determination
in terms of s 4 of PIE. The respondents were specifically invited to
place this information before court
prior to the hearing of the
matter.
[9]
[12] The
applicant’s view, as expressed in reply, was that the occupants
were lower income earning individuals who would
be able to secure
alternative accommodation in the event of an eviction order being
granted, and that the circumstances were not
such as to warrant the
municipality providing alternative accommodation for them.
[10]
As reflected below, this view was shared by the municipality.
[13] The
matter was originally set down for 22 April 2021 before Revelas J,
and then postponed to 17 June 2021 before Gqamana
J. The events which
resulted in the matter being postponed on both occasions are relevant
in order to determine the issue of the
wasted costs of 22 April 2021,
and are considered, below. In addition, it is significant that the
municipality was directed to
file a report with the Registrar setting
out ‘what steps it intends or is able to take in order to
provide alternative land
or emergency accommodation to the First to
Ninth Respondents in the event of their being evicted and rendered
homeless’.
[11]
It was
also ordered, by agreement, that the parties would file affidavits
dealing with the considerations set out in Regulation
37(2) and 37(3)
of the Regulations to the
Disaster Management Act, 2002
.
[12]
In the case of the municipality, this affidavit was to deal with the
availability of emergency accommodation or quarantine or isolation
facilities pursuant to the Regulations.
[14]
The applicant’s affidavit in response added the following
information:
a.
A
number of the units had been unlawfully subdivided by the respondents
and the additional number of people had resulted in overcrowding
and
a generally unhealthy and risky environment in the context of
COVID-19.
b.
Rental
had, at least previously, been paid to the eighth respondent,
suggesting that accommodation could be rented elsewhere.
c.
Several
motor vehicles were parked at the property, it being presumed that at
least some of these vehicles were owned by the respondents
and
gainsaying the allegations of destitution.
d.
The
respondents were aggressive and the member of the applicant who
deposed to the affidavit had been threatened, resulting in a
criminal
case being opened. Attempts at engaging with the respondents in order
to discuss a possible solution had been futile.
[15] The
respondents submitted an affidavit of Nonkazimlo Sunshine Gaqo,
seemingly one of the occupiers of the property, who
essentially drew
attention to various constitutional provisions and called for a
report from the municipality.
The municipality’s
stance
[16] The
municipality initially outlined its policies and procedures regarding
the provision of accommodation / land, also
in the context of the
granting of an eviction order. This included mention of the
development of a Housing Needs Database System,
since 2003, in which
all housing needs are registered. Housing opportunities are allocated
to registered individuals through set
criteria, including
prioritisation on a ‘first come first serve’ basis and
preference for vulnerable persons including
the elderly, persons with
disability and child-headed homes.
[17] The
Assistant Director in the municipality’s Department of Human
Settlements confirmed that the names of the
respondents could not be
found on the housing database, which contains in excess of 100 000
registered housing needs. The
respondents were invited to contact the
municipality in order to register and become eligible.
[13]
The municipality also commented on the problem of queue jumping, and
acknowledged that the scale of housing delivery was not addressing
the massive demand.
[18] The
municipality’s affidavit in response to
regulation 37(3)
of the
regulations to the
Disaster Management Act, 2002
, and focusing on
emergency facilities, is instructive. From this it is evident that
the municipality accesses emergency housing
from the Eastern Cape
Department of Human Settlements on an application basis, and as the
need for emergency housing arises. One
thousand five hundred
temporary shelters / units were provided immediately after the onset
of COVID-19 in the country, but were
exhausted by the end of the 2020
/ 2021 financial year. COVID-19 had impacted negatively on the
municipality’s ability to
provide emergency housing, and the
only available option for the respondents was to register on the
Housing Needs Database.
[19] Importantly,
the municipality, in seeking to comply with its reporting
obligations, had requested consultations with the
occupiers in order
to ventilate crucial matters such as whether an eviction was likely
to result in any or all of the occupiers
being homeless. The
municipality was, however, precluded from properly investigating such
factors ‘due to the occupiers’
reluctance to divulge all
required information or to participate in the consultations.’
[14]
[20] Consultations
had nevertheless proceeded with those willing to consult with the
municipality, namely the second
respondent, fourth respondent, sixth
respondent and one other individual considered to be an occupier. Two
further ‘house
invasion reports’ were submitted in
respect of the first and third respondents based on information
received from the next
of kin and observations from the
municipality’s officials. The consultations and submissions of
the interviewed occupiers
were reduced to writing and recorded in
pro-forma questionnaires attached to the municipality’s
report.
[15]
[21]
According to the municipality:
a.
‘
The
first, second, sixth and eighth respondents are employed;
b.
Some
of the units are in a “bad condition” and are
“overcrowded”;
c.
There
are minors resident in the property;
d.
Some
of the occupiers were paying rental and unilaterally stopped paying
same;
e.
It
is alleged that some of the occupiers have nowhere to go;
f.
There
is no conclusive or
prima
facie
evidence
before Court that in the event of the Court ordering the eviction
that all or any of the occupiers will be rendered homeless,
save for
the bald and unsubstantiated allegation made in the house invasion
reports that the interviewed occupiers have nowhere
to go;
g.
The
allegation that some or all of the occupiers have nowhere to go
appears improbable when one has regard to the fact that the
ninth
respondents are now aware of the NMBMs housing database and have been
made aware of same since the delivery of the initial
report on 15
June 2021. However, the ninth respondents have failed or refused to
take any steps to register or apply for housing
through the specified
policy and procedure.’
[22] The
municipality’s report highlighted that some of the respondents
were gainfully employed and had means to make
monthly rental
payments. They had failed to place any information or evidence before
court relating to the nature and extent of
their previous tenancy
(prior to occupation of the property), their family ties within the
court’s jurisdiction, or other
factors distinguishing their
circumstances from persons registered on the housing database.
[16]
The law
[23] PIE
was enacted to provide for the prohibition of unlawful eviction and
to provide for procedures for the eviction of
unlawful occupiers and
related matters. In terms of the Act’s Preamble, no one may be
evicted from their home without an
order of court made after
considering all the relevant circumstances. The Preamble also notes
that it is desirable that the law
should regulate the eviction of
unlawful occupiers from land in a fair manner, while recognising the
right of land owners to apply
to a court for an eviction order in
appropriate circumstances. Special consideration should be given to
the rights of the elderly,
children, disabled persons and,
particularly, households headed by women.
[24] The
application and consideration of PIE in eviction cases is
compulsory.
[17]
Section 4 of
PIE deals specifically with ‘eviction of unlawful occupiers’,
as follows:
‘
(1)
Notwithstanding anything to the contrary contained in any law or the
common law, the provisions of this section apply to proceedings
by an
owner or person in charge of land for the eviction of an unlawful
occupier.
(2) At least 14 days before the
hearing of the proceedings contemplated in subsection (1), the court
must serve written and effective
notice of the proceedings on the
unlawful occupier and the municipality having jurisdiction.
…
(5) The notice of proceedings
contemplated in subsection (2) must –
(a)
state that
proceedings are being instituted in terms of subsection (1) for an
order for the eviction of the unlawful occupier;
(b)
indicate on what
date and at what time the court will hear the proceedings;
(c)
set out the grounds
for the proposed eviction; and
(d)
state that the
unlawful occupier is entitled to appear before the court and defend
the case and, where necessary, has the right
to apply for legal aid.
…
(7) If an unlawful occupier has
occupied the land in question for more than six months at the time
when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all the
relevant circumstances, including,
except where the land is sold in a sale of execution pursuant to a
mortgage, whether land has
been made available or can reasonably be
made available by a municipality or other organ of state or another
land owner for the
relocation of the unlawful occupier, and including
the rights and needs of the elderly, children, disabled persons and
households
headed by women.
(8) If the court is satisfied that all
the requirements of this section have been complied with and that no
valid defence has been
raised by the unlawful occupier, it must grant
an order for the eviction of the unlawful occupier, and determine –
(a)
a
just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which
an eviction order may be carried out if the unlawful occupier has not
vacated the land on the date contemplated
in paragraph (a).
(9) In determining a just and
equitable date contemplated in subsection (8), the court must have
regard to all relevant factors,
including the period the unlawful
occupier and his or her family have resided on the land in question.
…
(12) Any order for
the eviction of an unlawful occupier or for the demolition or removal
of buildings or structures in terms of
this section is subject to the
conditions deemed reasonable by the court, and the court may, on good
cause shown, vary any condition
for an eviction order.’
[25] In
City
of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
,
[18]
the Supreme Court of Appeal considered the precise relationship
between the requirements of s 4(7) and s 4(8) in the context of
an
application for eviction at the instance of a private landowner,
noting that some judgments tended to blur the two enquiries
mandated
by these sections into one. The SCA held as follows:
[19]
‘
The first
enquiry is that under s 4(7), the court must determine whether it is
just and equitable to order eviction having considered
all relevant
circumstances. Among those circumstances the availability of
alternative land and the rights and needs of people falling
in
specific vulnerable groups are singled out for consideration. Under s
4(8) it is obliged to order an eviction ‘if the…
requirements of the section have been complied with’ and no
valid defence is advanced to an eviction order. The provision
that no
valid defence has been raised refers to a defence that would entitle
the occupier to remain in occupation as against the
owner of the
property, such as the existence of a valid lease. Compliance with the
requirements of section 4 refers to both the
service formalities and
the conclusion under s 4(7) that an eviction order would be just and
equitable. In considering whether
eviction is just and equitable the
court must come to a decision that is just and equitable to all
parties. Once the conclusion
has been reached that eviction would be
just and equitable the court enters upon the second enquiry. It must
then consider what
conditions should attach to the eviction order and
what date would be just and equitable upon which the eviction order
should take
effect. Once again the date that it determines must be
one that is just and equitable to all parties.’
[26] Wallis
JA, on behalf of the court, summarised the appropriate enquiry to be
undertaken as follows:
[20]
‘
Once the
court decides that there is no defence to the claim for eviction and
that it would be just and equitable to grant an eviction
order it is
obliged to grant that order. Before doing so, however, it must
consider what justice and equity demands in relation
to the date of
implementation of that order and it must consider what conditions
must be attached to that order. In that second
enquiry it must
consider the impact of an eviction order on the occupiers and whether
they may be rendered homeless thereby or
need emergency assistance to
relocate elsewhere. The order that it grants as a result of these two
discrete enquiries is a single
order. Accordingly it cannot be
granted until both enquiries have been undertaken and the conclusion
reached that the grant of
an eviction order, effective from a
specified date, is just and equitable. Nor can the enquiry be
concluded until the court is
satisfied that it is in possession of
all the information necessary to make both findings based on justice
and equity.’
[27]
It is so that the State, at all levels of government, owes
constitutional obligations to those in need of housing and
in
particular to those whose needs are urgent, such as those faced with
homelessness in consequence of an eviction.
[21]
It is indisputable that local authorities do owe constitutional
obligations to persons evicted from their homes who face homelessness
as a result. Those obligations arise under s 26 of the Constitution
and exist separately from any question of whether it is just
and
equitable for a court to grant an eviction order. In relation to
persons in crisis with no access to land and living in intolerable
conditions, it is the state that would be expected to provide
emergency and basic shelter to any affected respondent.
[22]
But the availability of suitable alternative accommodation or land,
while vital to the justice and equity evaluation, cannot be
the sole,
decisive enquiry to be considered by a court faced with an eviction
application. The Constitutional Court has, for example,
confirmed
that there cannot be an absolute right to be given accommodation
considering the great need for housing and limited availability
of
appropriate resources.
[23]
Even where the eviction is at the instance of an organ of state,
there is no unqualified constitutional duty on local authorities
to
ensure that there cannot be an eviction unless alternative
accommodation has been made available.
[24]
While it is so that an eviction order is far less likely to be just
and equitable where no alternative accommodation is provided,
neither
PIE nor s 26 of the Constitution provide an absolute entitlement to
be provided with accommodation:
[25]
‘
In some
circumstances a reasonable response to potentially homeless people
may be to make permanent housing available and in others
it may be
reasonable to make no housing at all available. In all of this the
court will have to be mindful of all other relevant
factors including
the resources available to provide accommodation.’
[28] The
issue of the availability of alternative accommodation is even more
complicated where eviction is requested by a private
owner of
property, relying on its constitutional right to property.
[26]
The effect of PIE is not to expropriate private property, but to
delay or suspend the exercise of an owner’s rights until
a
determination has been made whether eviction would be just and
equitable, and the conditions for this.
[27]
Private entities are not obliged to provide free housing for other
members of the community indefinitely, but their rights of occupation
may be restricted, and they can be expected to submit to some delay
in exercising their right to possession of their property in
order to
accommodate the immediate needs of the occupiers.
[28]
[29] It
is also appropriate to note that the usual characteristics of
ownership as well as the lack of any lawful reason to
be in
occupation are important factors in the exercise of the court’s
discretion.
[29]
‘
In most
instances where the owner of property seeks the eviction of unlawful
occupiers, whether from land or the buildings situated
on the land,
and demonstrates a need for possession and that there is no valid
defence to that claim, it will be just and equitable
to grant an
eviction order.’
[30] Before
determining whether an eviction order should be granted, the relevant
authorities must be engaged in order to ensure
that they will
discharge any of their obligations to persons facing eviction. It is
part of the court’s duty to ensure that
the issue of possible
homelessness has been properly canvassed.
[30]
In
Occupiers
of Mooiplaats v Golden Thread Ltd & Others
,
[31]
for example, the court had granted an eviction order without
investigating the possibility of it resulting in homelessness. The
eviction order was set aside on the basis that it could not be said
that an eviction order was just and equitable and the case
was
remitted to the High Court to obtain a report from the municipality
about the housing situation of the occupiers; the possibility
of
homelessness if they were evicted; the provision of alternative land
or accommodation; the consequences of an eviction if no
alternative
land or accommodation was provided and the measures that could be
taken to alleviate the situation of the owner if
an eviction was
delayed while alternatives were arranged.
[31] What
is expected is for local authorities to go beyond filing a general
report detailing its current housing policy and
to engage directly
with the facts of the particular case. Information regarding the
building or property in question, the number
and personal
circumstances of the occupiers, whether an eviction order is likely
to result in homelessness and proposed steps to
alleviate this, as
well as details of engagements with occupiers, is, by way of example,
also necessary.
[32]
This
information, stemming from the local authority’s obligation to
file a report in all eviction proceedings in terms of
PIE, is
designed to assist courts to determine whether an eviction order
should be granted, and the more comprehensive the report
the
better.
[33]
Guidance has also
been provided to courts on the extent to which they are expected to
take a proactive approach in ensuring that
there is sufficient
information available prior to granting an order for eviction:
[34]
‘
What they
are obliged to do in eviction cases is ensure that all the relevant
parties are before them, that proper investigations
have been
undertaken to place the relevant facts before them and that the
orders they craft are appropriate to the particular circumstances
of
the case.’
Analysis
[32] Eviction
requires people’s constitutional rights, including everyone’s
right to have access to adequate housing,
to equal protection of the
law, to have their dignity respected and protected, and not to be
evicted without an order of court
made after consideration of all the
relevant circumstances,
[35]
to
be matched against the rights of owners not to be deprived of their
property.
[36]
In balancing
these competing rights, consideration of the facts of each instance
of alleged illegal occupation is the appropriate
point of
departure.
[37]
[33] Courts
must, therefore, be informed of all the relevant circumstances in
each case in order to be satisfied that
it is just and equitable to
evict and, if so, when and under what conditions.
[38]
The obligation to provide the relevant information is primarily on
the parties to the proceedings, and officers of the court are
expected to furnish the court with all relevant information that is
in their possession in order for the court to properly interrogate
the justice and equity of ordering an eviction.
[39]
[34] In
this case, regrettably, the respondents’ answering affidavit
leaves much to be desired. It explains the position
of only one of
the occupiers and her children, and does so sketchily.
[40]
The position of the other respondents remains a mystery, with limited
information emanating from those respondents who deigned
to complete
the municipality’s questionnaires. There is no meaningful
disclosure of the financial circumstances and household
arrangements
involving the occupiers of the property. For example, what efforts,
if any, have been made on the part of the respondents
to find
alternative accommodation within their available resources?
[41]
A list of failed efforts would certainly have been of some
assistance, and the absence thereof is unfortunate. There is also no
explanation as to why the respondents have chosen to adopt this
approach. Despite being legally represented, and despite the
invitation
to place adequate information before the court, they
remain silent on material matters which lie within their
knowledge.
[42]
The affidavits
filed on their behalf fail to deal with a range of relevant issues,
and satisfy themselves with a few bald assertions
suggesting possible
homelessness in the event of eviction. A similar situation was
apparent in
Luanga
v Perthpark Properties Ltd
:
[43]
‘
The terse
statement is made in the papers that the appellant and her family
would be rendered homeless and “effectively on
the streets”
in the event of an eviction order, because it is alleged that none of
the occupants of the premises can afford
to pay a deposit for new
premises. In the absence of any details about the employment status
and income of the appellant’s
husband and three adult brothers,
it is difficult to attach any weight to these bald assertions…This
court was disturbed
by the failure of the appellant, who had had the
benefit of legal representation, to provide obviously relevant
details of the
ages, employment status and incomes of the occupants
of the property. These were details which Mr Langenhoven should have
been
able to ascertain with relative ease, and his unexplained
failure to do so gave rise to serious questions.’
[35]
The point made in that judgment is that respondents facing an
eviction application, particularly those who have the benefit
of
legal representation,
[44]
must
engage fully on the relevant issues and paint the picture to satisfy
the claim that there is a genuine risk of homelessness.
Details
regarding the employment status and income of adult members of those
occupying the property are clearly relevant and must
be provided.
Should there be a good reason why the information cannot be
furnished, this should be disclosed. Failure to do so
creates the
real risk that a court will inevitably come to the conclusion that
the assertions regarding inability to afford alternative
accommodation and the risk of homelessness are not genuine or
bona
fide
,
so that they may be rejected merely on the papers.
[45]
Providing the court with a canvass that is effectively blank, save
for the soft hint of homelessness, is simply not adequate.
[36] It
might be added that the nature of the engagements between the
applicant and the respondents, as well as between those
respondents
and the municipality make it clear that the mediation contemplated by
PIE is inappropriate in this instance.
[46]
[37] The
respondents are occupying the applicant’s land without its
consent and without any other right in law permitting
occupation.
They are accordingly classified as ‘unlawful occupiers’
in terms of s 1 of PIE. It may be assumed that
most of the unlawful
occupiers had occupied the property for more than six months at the
time when the eviction proceedings were
initiated. As such, s 4(7) of
PIE is applicable, and a court may only grant an eviction order if it
is of the opinion that it is
just and equitable to do so. All the
relevant circumstances, including particular focus on the plight of
vulnerable persons and
the availability of land for relocation, must
be considered in determining this issue.
[38] There
has been compliance with the service formalities required by s 4 of
PIE. In considering whether eviction is just
and equitable the court
must, in addition, consider what is just and equitable to all
parties. The respondents have failed to raise
any valid defence. As
indicated, the actual position of the vast majority of the
respondents is unknown given their failure to
participate in the
proceedings or to engage with the municipality’s inquiries. No
explanation for this has been given by
their legal representative. It
cannot be said that the respondents require the immediate assistance
of the municipality or that
they will actually be rendered homeless
should they be evicted. Even leaving aside the applicant’s
averments in this regard,
the questionnaires completed by four of the
respondents, and the confirmation of previous rental payment in the
answering affidavit,
suggest the contrary.
[47]
[39] By
contrast, the applicant has demonstrated its need for possession,
both in order to safeguard and improve the property
and to stem its
debt to the local authorities in respect of the running expenses.
[48]
The municipality has been engaged and has canvassed the issue of
possible homelessness to the satisfaction of the court through
its
reports, which go beyond generality and have dealt directly with the
applicable facts. These facts indicate that the assertions
of
homelessness are unsubstantiated so that they may be rejected on the
papers. There is sufficient information available for this
court to
exercise its discretion in concluding that it is just and equitable
to grant an order of eviction given all the circumstances.
[40] Before
doing so, however, it is appropriate to consider what justice and
equity demands in relation to the date of implementation
of that
order, and whether any conditions should be attached.
[49]
From the applicant’s perspective, it has been more than two
years since the applicant acquired the property. Its rights over
the
property have effectively been suspended since that time. The
premises is falling into disrepair and it has been unable to
commence
with intended renovations. The applicant has also incurred various
holding costs and is liable for considerable municipal
service
charges without being able to generate any income from the property.
[41] From
the respondents’ perspective, it must be noted that Ms
Maphukata has occupied the property since 2016. The
position of the
other respondents is uncertain, but it may be accepted that they have
been aware of their unlawful occupation of
the property since late
2019. Mindful that there are children and other potentially
vulnerable persons presently residing on the
premises, the
application for the eviction order to be enforced within 30 days from
the date of service of the Order is inappropriate.
I consider a
60-day period, from the date of service of the Order at the premises,
to be sufficient time for the respondents to
make alternative
accommodation arrangements, and to engage with the municipality in
the event that any emergency situation develops.
The granting of an
eviction order, effective from a date 60 days hence, is, in my view,
just and equitable given the circumstances.
To deny the applicant
access to its property beyond this period of time would unjustifiably
trample upon its rights. I am also
mindful of the contestation
surrounding the property, and the allegations of intimidation and
threatened violence that form part
of its history. The Order issued
is crafted accordingly, so that it may be enforced in the event that
the respondents have not
vacated the property within this time
period.
Costs
[42]
It was argued that the respondents should not be saddled with a costs
order in the event that the court grants the application,
based on
the principle laid down in
Biowatch
v Registrar Genetic Resources and Others
.
[50]
That decision provides guidance when dealing with constitutional
litigation ‘where the state is sued for the state’s
failure to fulfil its responsibilities for compelling claims between
private parties’.
[51]
The Constitutional Court did not provide clear guidance to the issue
of costs when private parties engage in disputes involving
constitutional rights.
[52]
[43] The
general principle as far as private litigation is concerned is that
costs will ordinarily follow the result, although
exceptional cases
may justify a departure from this rule.
[53]
As in
Itireleng
Bakgatla Mineral Resources
,
this matter involves a private dispute between a juristic person and
individual occupiers, with the municipality cited as an interested
party.
[54]
In my view, no
exceptional circumstances are apparent to warrant a departure from
the principle that costs should follow the result,
to be paid jointly
and severally by the respondents.
[55]
The
wasted costs of 22 April 2021
[44] The
remaining issue concerns the wasted costs occasioned by the
postponement on 22 April 2021. As indicated, the matter
was set down
for hearing on 22 April 2021. On that date, Revelas J granted a
postponement to 17 June 2021 in the following terms:
‘
It is
Ordered:
1.
That
the matter be and is hereby postponed to 17 June 2021.
2.
That
the wasted costs occasioned by the postponement of this matter are
reserved subject to paragraph 3 below.
3.
That
Advocate D Skoti is to file an affidavit on or before 31 May 2021
explaining why he did not appear before the above Honourable
Court on
even date and give reasons as to why an Order of costs of the
postponement should not be given against him
de
bonis propriis
.
4.
That
if the reserved costs order is not made against Advocate D Skoti, the
First to Ninth Respondents will be liable for the costs
occasioned by
the postponement.
5.
…
6.
…
7.
…
8.
That
the First to Ninth Respondents’ attorney, Mr Madikane, is
directed to ensure that this Order is provided to Adv D Skoti.’
[45] The
wasted costs occasioned by this postponement were further reserved
when the matter came before Gqamana J on 17 June
2021. On this
occasion, Mr Madikane was directed to file an affidavit within five
days setting out whether or not he had complied
with the directive
contained at paragraph 8 of the Revelas J Order, quoted above, and,
if so, in what manner he had complied with
the directive.
[46] Neither
Adv Skoti nor Mr Madikane have filed affidavits as directed by this
court and,
prima
facie
,
are acting in disregard of these directives, so that an order
de
bonis propriis
may
be appropriate. The Order issued affords them a final opportunity,
within fourteen days of the Order, to explain both their
non-compliance and why such a punitive order should not be made. As
Adv Skoti is no longer on brief, Mr Madikane is directed to
bring
this Order to his attention. The wasted costs occasioned by the
postponement on 22 April 2021 remain reserved.
___________________
A GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
Applicant
:
Adv K D Williams
Instructed
by
: Joubert Galpin & Searle
First – Ninth
Respondents
: Adv Moteno
Instructed
by
: Lawyers for Black People (NPC)
SA
Tenth
Respondent
: Adv L Ntsepe
Instructed
by
:
Roland Meyer Attorneys
Heard
on
: 29 July 2021
Date of
Order
: 24 August
2021
Reasons
for judgment
:
4
October 2021
[1]
Act 19 of 1998.
[2]
A notice of application for leave to appeal the Order was brought to
the attention of the Registrar on 16 September 2021. The
applicant
requested an expedited date for the hearing of the application for
leave to appeal and direction regarding the wasted
costs referred to
in paragraphs 5-7 of the Order. The following Directive was issued:
‘1. Application for leave to appeal will be
heard via the MS Teams platform on 27 October 2021 at 11:30am.
2. The issue of the wasted costs occasioned by the
postponement of the matter on 22 April 2021 will also be argued at
this time.
3. Reasons for the Order issued will be provided by
4 October 2021.
4. The respondents are afforded until 18 October
2021 to amplify their reasons for seeking leave to appeal, if
necessary.’
[3]
P 13 of the indexed papers.
[4]
As in
The City of Johannesburg v Changing Tides 74 (Pty) Ltd and
Others
[2012] ZASCA 116
para 2, the applicant makes reference to
the building being ‘hijacked’.
[5]
P 14, 15 of the index.
S 1 of PIE defines
‘unlawful occupier’ to mean ‘a person who occupies
land without the express or tacit consent
of the owner or person in
charge, or without any other right in law to occupy such land,
excluding a person who is an occupier
in terms of the
Extension of
Security of Tenure Act, 62 of 1997
, and excluding a person whose
informal right to land, but for the provisions of this Act, would be
protected by the provisions
of the Interim Protection of Informal
Land Rights Act, 1996 (Act 31 of 1996).’
[6]
P 15, 16 of the index.
[7]
The applicant’s papers indicates that the
municipal account in respect of rates and service charges in respect
of the property
amounts to approximately R27 000,00 per month,
which the applicant is required to pay despite not having the
beneficial
use and occupation of the property: p 17 of the index.
The applicant was, at the time of its reply, indebted to the tenth
respondent
in the sum of approximately R385 000,00 in respect
of water, electricity, services, rates and taxed: p 121 of the
index.
[8]
P 73, 74 of the index.
[9]
P 116 of the index.
[10]
P 118 of the index.
[11]
P
163 of the index. The applicant and the respondents were afforded
ten days after delivery of the municipality’s report
to file
affidavits in response.
[12]
Act 57 of 2002.
[13]
P 222, 223 of the index.
[14]
P 234 of the index.
[15]
P 241-247 of the index.
[16]
P 238 of the index.
[17]
Machele and others v Mailula and others
2010 (2) SA 257
(CC) para 15.
[18]
Supra
para 12.
It must be noted that
Changing Tides
dealt with a situation in which people were living in a building
considered to be a ‘death trap’ because of health
and
safety problems, and that their situation was one of dire need: para
52.
[19]
Ibid
(footnotes
omitted). On the question of onus, see para 30: it is for the
applicant to ensure that the information placed before
the court in
its founding affidavits is sufficient to satisfy it that It would be
just and equitable to grant an eviction order;
the applicant must
show that it has complied with the notice requirements under s 4 and
that the occupiers of the property are
in unlawful occupation; the
applicant also has to demonstrate that the circumstances render it
just and equitable to grant the
order. On the meaning of ‘just
and equitable’, see, in general,
Johannesburg
Housing Corporation
supra
.
[20]
Para 25. Also see
Johannesburg
Housing Corporation
para 127,
explaining that there cannot be only one correct date in the
determination of the dates for property to be vacated,
and eviction
and that a court may act within a permissible range of options which
should be carefully considered.
[21]
On the need for the local authority to be joined
whenever the circumstances (as alleged by an applicant for eviction)
raise the
possibility that constitutional obligations to provide
emergency accommodation have been triggered, see
Changing
Tides
para 38. On the meaning of
‘homeless’ and ‘homelessness’, see
Makama
and Others v Administrator, Transvaal
1992 (2) SA 278
(T) at 285I-286A and
Johannesburg
Housing Corporation
paras 81, 85 where
the following definition was offered: ‘Without any reasonable
prospect, between the date of the court
order which it is proposed
be made that the occupier is to vacate the property and the date
upon which the eviction order is
to be effected (in the event that
the occupier does not vacate the property), of the occupier being
able to find alternative
accommodation that is
(a)
of a comparable or better standard to and
(b)
at a similar rental to and
(c)
within reasonable proximity to that of
the property from which the eviction is sought.’
[22]
City of Johannesburg v Rand Properties (Pty)
Ltd & Others
2007 (6) SA 417
(SCA)
para 47, as cited in
Changing Tides
para 14.
[23]
Government of the Republic of South Africa
& others v Grootboom
2001 (1) SA 46
(CC) para 95.
[24]
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para
28.
[25]
Changing Tides
para
15, citing
Occupiers of 51 Olivia Road,
Berea Township and 197 Main Street, Johannesburg v City of
Johannesburg & others
[2008] ZACC 1
;
2008 (3) SA
208
(CC) para 18 and
Grootboom
para 46.
[26]
Changing Tides
para
16.
[27]
City of Johannesburg Metropolitan Municipality v
Blue
Moonlight Properties
39 (Pty) Ltd &
another
2012 (2) SA 104
(CC) para 40.
[28]
Ndlovu v Ngcobo; Bekker & another v Jika
2003 (1) SA 113
(SCA) para 17. Where the eviction
is sought by a private landowner the availability of alternative
land or accommodation assumes
greater importance in the second
enquiry, namely, what is a just and equitable date for eviction:
Changing Tides
para 20.
[29]
See
Changing Tides
paras
18, 19, also for consideration of the weight to be attached to the
availability of alternative land or accommodation to
the issue of
whether it is just and equitable to make an eviction order.
[30]
Occupiers, Shuluna Court, 11 Hendon Road,
Yeoville, Johannesburg v Steele
[2010]
4 All SA 54
(SCA) paras 14, 15.
[31]
2012 (2) SA 337 (CC).
[32]
Changing Tides
para
40.
[33]
Changing Tides
para
41.
[34]
Changing Tides
para
27.
[35]
Ss 10, 26 of the Constitution of the Republic of
South Africa, 1996 (‘the Constitution’).
[36]
S25(1) of the Constitution.
[37]
Mayekiso and another v Patel NO and others
2019 (2) SA 522
(WCC) para 58.
[38]
Occupiers, Berea v De
Wet NO and Another
2017
(5) SA 346
(CC) para 46.
[39]
Berea
para 47.
[40]
While
Ms Maphukata’s affidavit indicated
that she resided at the property with three minor children, she
failed to disclose, for
example, whether she is employed, married or
presently paying any rental.
Cf
the information provided by the occupiers in
Blue
Moonlight Properties
.
[41]
See
Mayekiso
paras
67, 68.
[42]
See
Luanga v
Perthpark Properties Ltd
2019 (3) SA
214
(WCC) paras 37, 38.
[43]
Paras 39, 40.
[44]
On the duties of legal representatives, see
Luanga
paras
47, 48, with reference to
Berea
para 47.
[45]
Luanga
paras 44,
45, with reference to
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A). Also see
Mayekiso
paras
66, 67.
[46]
S 7 of PIE. Also see
Johannesburg
Housing Corporation
para 123.
[47]
See
Johannesburg
Housing Corporation
par 60, with
reference to the
ex tempore
judgment
of Wepener J, in dismissing an application for joinder, at 3.
[48]
See
October NO and
Another v Hendricks and Another
2016
(2) SA 600
(WCC) para 30.
[49]
Ss 4(9) and 4(12) of PIE.
[50]
2009 (6) SA 232 (CC).
[51]
Biowatch
para 16.
[52]
Itireleng Bakgatla Mineral Resources (Pty) Ltd
and Another v Maledu and Others
[2017]
ZANWHC 86
para 84.
[53]
Bothma v Els and Others
2010
(2) SA 622 (CC).
[54]
Supra
para 85.
[55]
The wasted costs occasioned by the postponement
of the matter on 17 June 2021 are, in terms of the order of Gqamana
J, to be paid
by the municipality. For an example of what is
regarded by the Constitutional Court to be an ‘exceptional
circumstance’
in this context, see
Campus
Law Clinic (University of KZN Durban) v Standard Bank of South
Africa Ltd and Another
[2006] ZACC 5
,
as cited in
Bothma
para
96. In
Campus Law Clinic
,
important constitutional issues were raised in the public interest,
justifying the Court’s refusal to award costs to the
bank.
Also see
Barkhuizen v Napier
[2007] ZACC 5
para 90.