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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: A69 / 2023
In the matter between:
SALDANHA BAY MUNICIPALITY Appellant
and
UNI-FAITH MINISTRIES First Respondent
ISAK ROEDOLF Second Respondent
THE OFFICE-BEARERS AND MEMBERS OF
UNI-FAITH MINISTRIES Third Respondent
Coram: Le Grange ADJP, Wille et Nziweni, JJ
Heard: 24 January 2024
Delivered: 31 January 2024
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JUDGMENT
________________________________________________________________________
WILLE, J:
Introduction
[1] The appellant's application for the eviction of the respondents from a portion of
the land housing a church and a storeroom in two prefabricated buildings was
dismissed by the court a quo. The prefabricated church building and the storeroom
were located on certain land designated for a low -cost housing project for over a
hundred residential units for the poor, needy, and vulnerable. The appellant sought to
evict the respondent s so that contractors could prepare and install infrastructure for
the proposed housing development. However, the refusal of the respondent s to
vacate these premises prevented them from performing the necessary work for the
housing development to progress.
[2] The appellant was found to have a legal duty and obligation to provide low-cost
housing to the poor, needy, and vulnerable, and the development met this
constitutional obligation. The appellant provided the required regulatory report s,
stating that the two prefabricated buildings on the premises would be demolished.
Rather, a permanent brick-and-mortar crèche building would be retained as a crèche
and a church. The regulatory report s included a site development plan. Moreover,
the necessary environm ental approval was obtained, indicating that only the crèche
building on the premises would be retained and serve as both a crèche and a church.
This is broadly the canvass of the facts before this court on appeal.
Context
[3] In the first instance, the court a quo determined that the two prefabricated
buildings on the church grounds would have to be demolished for the low-cost housing
project to commence. The regulatory reports also indicated the need to demolish
these two prefabricated structures on the premises. This was then also one of the
main reasons given by the respondents to attempt to prevent their eviction.
3
[4] This reasoning was upheld in the court of first instance, and this finding remains
the primary ground of appeal by the appellant to this court. According to the
respondents, there existed the possibility of a dispute between the appellant and the
two regulatory bodies over the meaning, content and legal effect of their reports
relating to the current retention of the prefabricated buildings on the premises . The
appellant's development plans included demolishing these two prefabricated buildings
to make way for the low -income housing project. The respondents, conversely ,
disputed this by denying (unarguable) facts and levelling unjustified accusations
against the appellant's employees in this connection. These denials became the
foundation of the respondents' shields to the eviction application.
[5] As a result of warranted judicial case management, the appellant 's initial
hearing was postponed, allowing the respondents to file a supplementary affidavit. It
was alleged that this further exacerbated the pace of the development and provision
of low-cost housing to the poor, needy, and vulnerable. The appellant sought the
respondents' eviction based on the appellant's ownership of the prefabricated
buildings leased to the first respondent. These leases have since expired due to the
passage of time and have not been renewed.
Consideration
[6] This appeal presents this court with an unusual situation in which it appears that
the fate of this eviction application was decided based on a potential dispute between
the appellant and two regulatory bodies over the interpretation of an environmental
assessment (and possibly other regulatory disputes) that were not materially related
to any discrete dispute between the appellant and the respondents.
[7] Further, t his was not a minor consideration . I say this because of necessity
therefore, an additional burden was seemingly imposed on the appellant in as much
as the appellant failed to establish the respondents' occupation of the church (in the
prefabricated buildings on the premises) was unlawful. In other words, the potential
(or not) of resolving any disagreements between the regulatory bodies and the
appellant did not provide a legally justifiable or acceptable reason for preventing the
eviction application.
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[8] Any potential misunderstandings between the appellant and the interpretation of
the regulatory reports were not an issue germane for determining the initial eviction
application. I say this because it does not affect the appellant’s right to evict an illegal
occupant on a portion of its property . The first respondent objected to the eviction
application because the church (housed in the prefabricated buildings) was the subject
of a specific mention in the regulatory report to be retained and incorporated into the
proposed housing development in the brick -and-mortar building together with a
crèche.
[9] Consider further that the first respondent was allowed to comment on the
appellant's environmental authorization application and was contacted for comment
upon its adjudication. The appellant stated that it planned to keep the church and the
crèche as part of the proposed development, with the crèche building remaining
unchanged and the prefabricated buildings east of this permanent building being
demolished.
[10] Moreover, all the regulatory reports unequivocally demonstrated the plan to
demolish the prefabricated church buildings and keep the crèche building for use as a
crèche and a church. Undoubtedly, the report and the material at the respondents'
disposal did not, in any manner or form , give rise to any right of use or occupation to
the benefit of the respondents as a matter of law in the form of any ‘real’ right. Simply
put, the regulatory reports were only an expression of the a ppellant's development
plans to enable it to decide whether to action a defined development right.
[11] The first respondent chartered for the stated position that the proposed
demolition of the prefabricated church buildings would violate the regulatory reports.
This position was misunderstood as the prefabricated church buildings were
designated for demolition in all the regulatory reports. Also, the first respondent
opposed the eviction application based on an incorrect interpretation of an
incorporation statement, which ostensibly justified the church's continued use and
occupation of the prefabricated buildings. To the contrary, it was the appellant’s case
that the demolition of the two prefabricated buildings would not result in any
contraventions of the regulatory reports. With this interpretation, I agree.
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[12] Also, the reasoning in the court of first instance seemed to suggest that it was
common cause that the regulatory reports indeed called for the demolition of the
prefabricated church buildings. Thus, any dispute about the content and meaning of
the regulatory reports did not touch on the assessment of the shields raised by the
respondents to their eviction.
[13] The regulatory bodies issued a letter confirming that the prefabricated church
buildings would be demolished but that the church and crèche would be
accommodated in the area designated for institutional use in the brick -and-mortar
building, which would be retained. The appellant hotly contested its alleged failure to
comply with the regulatory reports or any of the conditions imposed therein. The point
was further made that the relevant incorporation statement was not a condition to be
assimilated into the reports and thus could not be enforced against the appellant.
[14] This was undoubtedly a correct interpretation of the content and terms of the
various regulatory reports. This view is fortified by the letter filed by the environmental
‘expert’ expressing that the relevant report only indicated (at most) that the ‘ church’
references in the reports were to the brick-and-mortar crèche building and not to the
prefabricated church buildings.
[15] The respondents' arguments seem to have been confusingly marinated by what
they understood to have been conveyed in the various regulatory reports, which they
sought to be elevated into shields against their eviction from the prefabricated church
buildings. The relevant regulatory report s are very specific in this connection and
cannot be the subject of a material dispute (even if they were relevant). This
notwithstanding, no requirement of this nature appeared under the conditions of any
of the regulatory reports. I say this because it is clearly recorded as a conjunctive as
follows:
‘…An existing church and crèche located on…will be retained and incorporated into
the proposed development…’
1
1 This appears in the description of the authorized activities and the consideration of alternatives in the records of the
Environmental Assessment.
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[16] This must be so because (a) any condition that is sought to be imposed must
aim to minimize any adverse environmental and socio- economic impact and to
maximize the beneficial impacts of the authorized activities, (b) conditions which are
extraneous to these relevant impacts are by their very nature ultra vires and, (c) even
if a condition was imposed that the first respondent would be able to occupy the
prefabricated church buildings in perpetuity, such a condition would be extraneous to
any identified environmental impact and would be per se unenforceable in law.
[17] This is well demonstrated by the fact that a purported imposed ‘condition’ would
then become the subject of enforcement that bore no logical nexus to any established
or potential environmental concern and would be unlawfully infringing upon the
constitutionally protected right of the appellant to lease its premises and to evict an
unlawful occupier in circumstances where no contractual relationship persisted
between these immediate parties.
[18] It is not the basis for sophisticated reasoning by the respondents to suggest
that a one-sided interpretation of the content of the regulatory reports may be utilized
as a shield to interfere with the enforcement of the appellant’s rights against the
respondents who are unlawfully holding over under a lease that expired some years
ago and which was not the subject of any renewal. The fact that the leases have
expired and have not been renewed was undisputed.
[19] The respondents say that because they were consulted concerning the
development project, they acquired rights to the prefabricated leased buildings, which
rights would trump any contractual rights which may have endured during the currency
of the lease agreements, which have since expired. This cannot be so because one
cannot dance at two weddings simultaneously and this would be conflating the marked
differences in law between ‘personal’ rights and ‘real’ rights.
[20] Moreover, it is not legally sustainable to assert that the respondents acquired
certain limited contractual rights in terms of its lease agreements with the appellant,
and when those rights c ame to an end, better and more unlimited rights were born
because of certain ‘conditions’ in regulatory reports (commissioned at the instance of
the appellant).
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[21] This would suggest further rights to occupy the prefabricated premises in
perpetuity absent any agreement s. Any such ‘condition’ would be beyond any
regulatory decision-maker's powers and, therefore, invalid.2 It is common cause that
the crèche building was intended to be retained unchanged. The issue of the
demolition of the prefabricated buildings does not bear any nexus or relevance to and
with any socio- economic and environmental impact related to the recorded listed
activities.
[22] To the contrary, our jurisprudence dictates that an owner of the property who
gives possession thereof to another person in terms of a lease agreement which has
come to an end is entitled to the eviction of such person unless that person alleges
and proves that he or she has a right of possession. 3 The appellant discharged the
onus resting on it, and it was up to the respondents to allege and prove they had a
right of possession. This they did not do.
[23] No legally recognizable right existed in this case, and no constitutional issues
were at play. This matter did not involve the right to housing. Further, no constitutional
issues were advanced in the respondents' affidavits and these only surfaced through
belated arguments.4 Thus, no discretion came into play to decide whether to grant an
eviction order based on what is considered just and equitable in the relevant
circumstances.
[24] It cannot be so that any potential dispute between the appellant and the
administrative regulatory authorities regarding the meaning and interpretation of
certain environmental authorizations had any bearing on the appellant's right to evict
the respondents. This would also incorrectly assume that the provision of alternative
accommodation was a legal requirement to obtain an eviction order in circumstances
where no legally recognizable right existed for the respondents to possess or occupy
the two prefabricated church buildings. Further, the respondents were also not taken
by surprise as the appellant, from the outset, intended to retain both the church and
2 Hangklip/Kleinmond Federation of Ratepayers Association v Minister for Environmental Planning and Economic Development:
Western Cape and Others (unreported judgment of Western Cape High Court delivered on 1 October 2009).
3 Airports Company South Africa Ltd v Airport Bookshops (Pty) Ltd t/a Exclusive Books 2017 (3) SA 128 SCA.
4 National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 at [37] G-H.
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crèche in the brick-and-mortar buildings as part of the proposed development, without
any changes.
[25] Regrettably, the respondents opposed the eviction application based on an
incorrect interpretation of the incorporation statement, which they also say justified
their continued use and occupation of the prefabricated buildings. Moreover, t he
respondents rather unjustifiably accused the a ppellant of misleading the court
concerning this housing development project. I do not see it this way. The appellant
remains constitutionally mandated to devise and implement a comprehensive and
coordinated program progressively to realize the right of access to adequate housing
within its available resources.
5
[26] The appellant was under no obligation to provide the respondents with a
church. The separation of church and state is a fundamental principle. It is so that a
constitutional obligation arises to protect and uphold individuals' rights to freely
practice their religion if they do not infringe on the rights of others or break any laws.
The principle of separation of church and state, also known as secularism, advocates
for the separation of religious institutions and the government. The respondents failed
to exhibit any rights to prevent their eviction from these prefabricated buildings. For
all these reasons, the appeal must succeed.
Costs
[27] I agree with the appellant that the respondents have yet to seek the protection
of the principle expressed in Biowatch.
6 Also, there is no proper constitutional issue
before this court. But the enquiry continues as I am enjoined to exercise my discretion
judicially in connection with the costs of this appeal and I believe that making any order
as to costs would be ill-advised. I say this because, at the end of the day, if any order
as to costs were to be levied, it would inevitably fall upon the congregation members
of the first respondent to ultimately fund these costs. Further, considering the nature
of the respondents’ church business, I accept that the appellant may, in any event, be
5 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 at 87 C-D.
6 Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC).
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hard-pressed to recover any fees from the respondents. For these reasons, I believe
it is appropriate to order that no costs are to be levied against the respondents.
Order
[28] I propose the following order to be granted;
1. That the application for condonation (as much as same may have been
necessary) is granted.
2. That the appeal is upheld.
3. That the orders of the court a quo, including the cost order s, are with this set
aside and replaced with the following orders:
(a) The first and second respondents and all its members and office-
bearers, being the third respondent (including all persons who, with their
permission or upon their invitation, occupy and use the church premises)
including the church building, situated on E rf 7 […], Vredenburg, are
ordered to vacate the said church premises and building within one
calendar month of the date of this order and to remove all movable
property from the said premises. For the sake of clarity, the church
premises are for this order, defined as:
‘…the premises (as demarcated on the aerial photo, attached to the
appellant’s founding affidavit under case number 21588/2021) and
marked as “JP1” by the rectangular fencing lines to which the arrows
are pointed and on which the words ‘Uni-Faith Church’ are written….’
(b) The first and second respondents and all its members and office-bearers,
being the t hird respondent, including all persons who, with their
permission or upon their invitation, occupy and use the church premises,
are interdicted from entering the church premises and Erf 7[ …],
Vredenburg with effect from one calendar month of the date of this order.
(c) With this, the appropriate sheriff of the court is authorized and directed to
give effect to the orders to vacate and interdict, as set out in paragraphs
3 (a) and 3 (b) above.
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(d) Each party shall be responsible for their own respective costs of an
incidental to the application and the appeal processes.
4. The remainder of the relief sought as ‘damages’ shall stand over for later
determination (if at all appropriate and necessary).
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WILLE, J
I agree, and it is so ordered:
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LE GRANGE, AJP
I agree:
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NZIWENI, J