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[2010] ZASCA 28
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The Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele (102/09) [2010] ZASCA 28; 2010 (9) BCLR 911 (SCA) ; [2010] 4 All SA 54 (SCA) (25 March 2010)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 102 / 09
Case no: 499 / 09
THE OCCUPIERS, SHULANA COURT, 11 HENDON ROAD,
YEOVILLE, JOHANNESBURG Appellants
and
MARK LEWIS STEELE Respondent
___________________________________________________________________________
Neutral citation:
The Occupiers, Shulana Court, 11 Hendon
Road, Yeoville, Johannesburg v Steele
(102/09 and 499/09)
[2010] ZASCA 28
(25 March 2010)
BENCH: MPATI P, VAN HEERDEN, MHLANTLA, SHONGWE JJA and THERON
AJA
HEARD:
18 February 2010
DELIVERED:
25
March 2010
SUMMARY:
Rescission of Judgment â good cause shown â bona
fide defence based on non-compliance with s 4(6) and (7) of the
Prevention of
Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 and s 26(1) and (3) of the Constitution.
______________________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from
:
South
Gauteng High Court (Johannesburg) (Satchwell J and Tsoka J,
respectively, sitting as courts of first instance).
1
The rescission appeal (case no
499/09) is upheld with costs including the costs of two counsel.
2 The order of the high court is replaced with the
following:
â
(a) The default judgment granted against the
applicants on 18 June 2008 is rescinded and the applicants are
granted leave to oppose
the application for their eviction.
(b) The applicants are directed to file their opposing
affidavits within the time period prescribed by the Uniform Rules of
this Court
and the
dies
in this respect will be calculated as from the date of this order.
The costs of this application are reserved for the
trial court.â
3 No order as to costs is made in the appeal against the
order of eviction (case no 102/09).
_____________________________________________________________________________________________
JUDGMENT
__________________________________________________________________
THERON AJA (MPATI P, VAN HEERDEN, MHLANTLA
and SHONGWE JJA concurring)
[1] The appellants are a group of people who occupy
property situated at 11 Hendon Road, Yeoville in central Johannesburg
(the property).
A curious feature of this matter is that there are
two appeals before this court. One is directed against an order of
eviction that
was granted by default against the appellants and the
other relates to the dismissal of an application for rescission of
the order
of eviction. Both Satchwell J (who granted the eviction
order) and Tsoka J (who refused the rescission application) granted
the appellants
leave to appeal to this court. The parties were agreed
that if the rescission appeal was successful it would be
determinative of
the entire matter.
[2] The respondent, Mr Mark Steele, became the owner of
the property on 9 February 1993. The property consists of four large
flats
and three separate rooms, which were originally staff quarters.
These flats and rooms have been divided into multiple units with
each unit being occupied by several people. According to the
respondent, the appellants have occupied the property in terms of
oral
agreements of lease. In terms of the agreements, their tenancy
was on a periodic monthly basis and the monthly rental was R1 239
per
flat and R266 per room. It was alleged by the respondent that the
property had become run down, dilapidated and overcrowded.
He
consequently decided to renovate it and terminated all the leases.
[3] On 30 October 2007, the respondent gave the
appellants notice of termination of their respective leases and they
were given three
months, until 31 January 2008, to vacate the
property. None of the appellants vacated the property by the due
date. During April
2008, the respondent instituted eviction
proceedings against the appellants in the South Gauteng High Court
(Johannesburg). The appellants
failed to oppose those proceedings and
on 18 June 2008, the high court granted the eviction order in terms
of which the appellants
were directed to vacate the property. The
appellants subsequently applied for rescission of the eviction order,
which application
was dismissed by Tsoka J.
[4] Before us, as in the court below, the appellants
relied on the common law, as well as Uniform rule 42(1) for their
claim for rescission.
It is trite that in terms of the common law, an
applicant, in order to be successful in an application for
rescission, is required
to show good cause. Generally, an applicant
will establish good cause by giving a reasonable explanation for his
or her default and
by showing that he or she has a bona fide defence
to the plaintiff's claim which prima facie has some prospect of
success.
1
[5] Mr Muzikayifani Ngcobo, one of the occupiers of the
property, deposed to an affidavit in support of the rescission
application,
in which he set out his and the remaining appellantsâ
personal circumstances and explained why they had failed to appear in
court
on 18 June 2008. Ngcobo, his two wives and their children have
been residing in a single room on the property since 1992. According
to Ngcobo, approximately 70 people reside on the property, including
children and disabled persons and women who are household heads,
most
of whom have been living on the property for a considerable number of
years. Ngcobo described the occupiers as poor, the majority
of whom
earn a living as hawkers selling goods such as sweets and cigarettes
from informal stalls set up in the inner city area.
According to
Ngcobo, he and some of the appellants have - he does not specify when
- searched for alternate accommodation in the
inner city but could
not find anything that they could afford. Ngcobo gave a plaintive
description of his previous homelessness,
which was a result of being
evicted.
[6] In respect of their failure to appear in court,
Ngcobo states that after the eviction papers were served on him and
the remaining
appellants, he, on behalf of the appellants, sought
assistance from the Inner City Resources Centre (the ICRC), a
non-governmental
organization which provides assistance to people
threatened with eviction. Ms Shereza Sibanda,
from the ICRC, unsuccessfully attempted to
secure legal representation for the appellants. According to Ngcobo,
the appellants had
assumed that the ICRC would take all the necessary
steps to oppose the eviction application. On 13 June 2008, the
Centre for Applied
Legal Studies (CALS), which had been contacted by
Sibanda, advised Ngcobo that it would not be able to assist the
appellants. Ngcobo
again contacted the ICRC, and discovered that
Sibanda was in Kenya. According to Ngcobo, he and the remaining
appellants had believed
that the ICRC would appear in court on their
behalf on 17 June 2008, the date on which the eviction application
was to be heard.
Early in the morning of 17 June 2008, he again
contacted the ICRC. He was advised that Sibanda was not yet in the
office. Later that
morning, he went to the ICRC offices. It was only
then that Sibanda, who had just returned from Kenya, became aware of
the fact that
CALS had declined to assist the appellants. Sibanda
indicated that it was âtoo late to attend court, because an order
[of eviction]
had most likely already been grantedâ.
[7] It is apparent from the facts that the appellants
failed to appear in court because they genuinely believed that they
were being
assisted by the ICRC. The appellants assumed that the ICRC
would take all the necessary steps to oppose the eviction
application.
Ngcobo explained that he and the remaining appellants
had not understood that the ICRC could not itself provide them with
legal representation
and appear in court on their behalf.
[8] The appellants did take steps to secure legal
assistance in opposing the eviction application. It had clearly
always been their
intention to oppose the matter. They failed to
appear in court because they bona fide, but mistakenly believed that
they would be
represented. That he had contacted the ICRC on the
morning of the hearing and later personally called at their offices,
is confirmation
of this fact. The explanation for their
non-appearance is reasonable and I am satisfied that they were not in
wilful default.
[9] The appellants relied on two grounds in support of
their assertion that they have a bona fide defence. First, they
contended that
in terms of s 4(6) and 4(7) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE),
a court can only grant an eviction order once it is satisfied
that it is just and equitable to do so. It was further contended that
although the eviction application was not opposed in the high court,
there was sufficient evidence before the court to have alerted
it to
the fact that the occupiers of the property were poor and faced the
very real prospect of homelessness if evicted. Thus, so
it was
submitted, they were entitled to protection in terms of s 26(1) and
(3) of the Constitution. Second, it was argued that where
the grant
of an order of eviction may result in the occupiers of the property
being homeless, the municipality was a necessary party
to the
proceedings and the failure to join the municipality rendered the
grant of the eviction order premature.
[10] Section 26 of the Constitution, which entrenches
the right to housing, provides that:
â(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation
of this right.
(3) No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the
relevant circumstances. No legislation may permit arbitrary
evictions.â
Section 26(1) imposes a negative duty on the state not
to interfere with or deprive a person of existing access to adequate
housing.
2
Section 26(2) creates a positive obligation on the state to devise
and implement a reasonable housing programme. In
Government
of the Republic of South Africa & others v Grootboom &
others
,
3
the Constitutional Court held that a housing
programme could only be reasonable if it provided emergency shelter
to people in desperate
need who, for whatever reason, faced the
prospect of homelessness. The right to be protected from arbitrary
eviction, as contained
in s 26(3) of the Constitution, is given
effect to through various provisions of PIE. One of the primary
objectives of PIE is to
ensure that evictions take place in a manner
consistent with the values of the Constitution.
4
PIE prescribes the requirements which must be satisfied before a
court may grant an order of eviction. Of relevance to this
application
are ss
4(6)
and 4(7) which provide that a court may only grant an eviction order
if it is just and equitable to do so, after considering
all the
relevant circumstances. These sections read:
â4(6) If an unlawful occupier has occupied the land in question for
less 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 the rights and needs of the elderly,
children, disabled persons and households headed by women.
(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.â
In terms of s 4(6) and 4(7), a court is obliged to
consider the rights and needs of the elderly, children, disabled
persons and households
headed by women. These are specifically listed
as relevant factors to which a court must have regard. In terms of s
4(7), the court
is also obliged to consider the availability of
alternative land for the relocation of an occupier. Where information
relating to
these matters is not placed before the court, the court
will not be in a position to consider these circumstances in
determining
whether the eviction was just and equitable.
5
[11] Our courts have recognised that there is a duty on
them, in eviction matters, to consider all relevant circumstances and
that
they are not in a position to discharge this duty where
information relating to, inter alia, the rights and needs of the
elderly,
children, disabled persons and households headed by women,
has not been placed before them.
6
This constitutional approach was explained by Sachs J in
Port
Elizabeth Municipality v Various Occupiers
:
7
âThe obligation on the court is to âhave regard toâ the
circumstances, that is, to give them due weight in making its
judgment
as to what is just and equitable. The court cannot fulfil
its responsibilities in this respect if it does not have the
requisite
information at its disposal. It needs to be fully apprised
of the circumstances before it can have regard to them. It follows
that,
although it is incumbent on the interested parties to make all
relevant information available, technical questions relating to
onus
of proof should not play an unduly significant role in its enquiry .
. .
Both the language of the section and the purpose of the
statute require the court to ensure that it is fully informed
before undertaking the onerous and delicate task entrusted to it
.
In securing the necessary information, the court would therefore be
entitled to go beyond the facts established in the papers before
it.
Indeed, when the evidence submitted by the parties leaves
important questions of fact obscure, contested or uncertain, the
court might
be obliged to procure ways of establishing the true state
of affairs, so as to enable it properly to âhave regardâ to
relevant
circumstances.
â
8
(Emphasis added and footnotes omitted.)
[12] PIE imposed a new role on the courts in that they
are required to hold the balance between illegal eviction and
unlawful occupation
and ensure that justice and equity prevail in
relation to all concerned.
9
Sachs J, in
Port Elizabeth Municipality
,
described this new role of the court as âcomplex, and
constitutionally ordainedâ
10
and one which required a court âto go beyond its normal functions,
and to engage in active judicial
managementâ.
11
A number of courts, including this court, have, in relation to the
provisions of s 4 of PIE, recognised the duty of the court to
act
proactively, as well as its powers to investigate, call for further
evidence or make special protective orders.
12
In
Shorts Retreat
,
13
Jafta JA stated that s 4 obliges courts to be âinnovativeâ and in
some instances, âto depart from the conventional approachâ.
[13] In terms of s 4(7) a court is obliged, in addition
to the circumstances listed in s 4(6), namely, the rights and needs
of the
elderly, children, disabled persons and households headed by
women, to give due weight to the availability of alternative land.
There
is nothing to suggest that in an enquiry in terms of s 4(6), a
court is restricted to the circumstances listed in that section. The
court must have regard to
all
relevant circumstances. The circumstances identified are peremptory
but not exhaustive.
14
The court may, in appropriate cases, have regard to the availability
of alternative land. However, where the availability of alternative
land is relevant, then it is obligatory for the court to have regard
to it.
[14] I turn now to consider whether the high court had,
in granting the eviction order, properly discharged its statutory
obligations.
In his founding affidavit, the respondent had alleged
that the property was extremely old, dilapidated and overcrowded,
with the
flats and rooms having been informally subdivided into
multiple living quarters. It was also apparent from the evidence that
the
appellants had paid relatively low rentals. Information relating
to the needs of the elderly, children, disabled persons and
households
headed by women was not placed before the court. In my
view, the court was not in a position to have regard to all relevant
circumstances
as the necessary information was not placed before it.
It did not have the views of the municipality which was best placed
to inform
the court of the availability of land within its
jurisdiction and measures that the court could put in place,
temporarily or permanently,
to accommodate the appellants. As was
mentioned by Jafta JA in
Shorts Retreat
,
15
a municipality has constitutional obligations which it must discharge
in favour of people facing eviction. These safeguards are designed
to
ensure that an occupierâs constitutional rights are protected and,
as previously mentioned, that evictions take place in a humane
manner
consistent with the values of the Constitution.
16
Based on the information which had been placed before the high
court, it cannot be said that the court was sufficiently informed
of
all relevant circumstances before granting an order which had the
effect of depriving people of their homes. The high court failed
to
comply with the mandatory provisions of s 4 of PIE.
[15] Although the information which had been placed
before the high court was insufficient to enable it to discharge its
statutory
obligations, the scant information which had been made
available should have alerted the court to the fact that the
occupiers of
the property were poor and that the prospect of
homelessness, if they were to be evicted, was very real. The high
court ought to
have been proactive and should have taken steps to
ensure that it was appraised of all relevant information in order to
enable it
to make a just and equitable decision. The court has, in
these circumstances, also failed to comply with its constitutional
obligations.
[16] It will, generally, not be just and equitable for a
court to grant an eviction order where the effect of such an order
would
be to render the occupiers of the property homeless.
17
In
Port Elizabeth Municipality
,
18
the Constitutional Court cautioned that âa court should be
reluctant to grant an eviction against relatively settled occupiers
unless it is satisfied that a reasonable alternative is availableâ.
I am of the view, having regard to the personal circumstances
of the
occupiers, and in particular the real prospect that their eviction
could lead to homelessness, that they have established
a bona fide
defence that carries some prospect of success.
[17] In the result the appellants have shown good cause
for a rescission order under the common law. It is consequently
unnecessary
to consider whether the appellants would be entitled to
claim rescission in terms of Uniform rule 42(1) and whether the
failure to
join the municipality as a party to the proceedings in the
high court was fatal.
[18] The following order issues:
1
The rescission appeal (case no
499/09) is upheld with costs including the costs of two counsel.
2 The order of the high court is replaced with the
following:
â
(a) The default judgment granted against the
applicants on 18 June 2008 is rescinded and the applicants are
granted leave to oppose
the application for their eviction.
(b) The applicants are directed to file their opposing
affidavits within the time period prescribed by the Uniform Rules of
this Court
and the
dies
in this respect will be calculated as from the date of this order.
The costs of this application are reserved for the
trial court.â
3 No order as to costs is made in the appeal against the
order of eviction (case no 102/09).
_________________________
L V THERON
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellants: P Kennedy SC
I Goodman
Instructed by:
Routledge Modise (in association with
Eversheds)
Sandton
McIntyre & Van Der Post
Bloemfontein
For Respondent: J Both SC
A W Pullinger
Instructed by:
Kern and Partners
Johannesburg
Naudes Attorneys
Bloemfontein
1
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at
765B-C;
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills
(Cape)
2003 (6) SA 1
(SCA) para 11.
2
Jaftha v Schoeman & others
;
Van Rooyen v Stoltz & others
[2004] ZACC 25
;
2005 (2) SA 140
(CC) paras 32-34.
3
2001 (1) SA 46
(CC) paras 52, 63 and 69.
4
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC)
para 11.
5
Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Ltd & others
[2009] 4 All SA 410
(SCA);
[2009] ZASCA 80
paras 5-6.
6
Transnet t/a Spoornet v Informal Settlers of Good Hope &
others
[2001] 4 All SA 516
(W);
Port Elizabeth Municipality
v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
Ritama Investments
v Unlawful Occupiers of Erf 62 Wynberg
[2007] JOL 18960
(T);
Cashbuild (South Africa) (Pty) Ltd v Scott & others
2007
(1) SA 332
(T);
Occupiers of Erf 101, 102, 104 and 112 Shorts
Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd
.
7
[2004] ZACC 7
;
2005 (1) SA 217
(CC).
8
Para 32.
9
Port Elizabeth Municipality v Various Occupiers
para 13.
10
Ibid.
11
Para 36.
12
See the authorities listed in n 6 above.
13
Para 14.
14
Port Elizabeth Municipality v Various Occupiers
above n 7
para 30. Although the court referred specifically to s 6, there is
no reason why this reasoning should not apply to s
4 as well.
15
Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Ltd
above n 5
para 14.
16
Para 10 above.
17
Government of the Repuplic of South Africa v Grootboom
above
n 3;
Modderfontein Squatters, Greater Benoni City Council v
Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre,
Amici
Curiae); President of the Republic of South Africa &
others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources
Centre,
Amici Curiae)
2004 (6) SA 40
(SCA).
18
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 28.