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[2011] ZASCA 93
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Minister of Safety & Security v Moodley (429/10) [2011] ZASCA 93; [2011] 4 All SA 47 (SCA) (31 May 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 429/10
THE MINISTER OF SAFETY AND SECURITY
..........................................................
Appellant
and
DEVARAJH MOODLEY
..........................................................................................
Respondent
______________________________________________________________
Neutral citation:
Minister
of Safety & Security v Moodley
(429/10)
[2011] ZASCA 93
(31
May 2011)
CORAM:
Navsa, Cloete, Cachalia, Bosielo and Majiedt JJA
HEARD:
16 May 2011
DELIVERED:
31 May 2011
SUMMARY: Fair
procedure prescripts of
s 3
of The
Promotion of Administrative
Justice Act 3 of 2000
not complied with in terminating occupancy of
official police quarters ─ high court erred in determining the
matter on the
basis that the notice provisions of the Prevention of
Illegal Evictions and Occupation from Land Act 19 of 1998 (PIE) were
not
complied with without determining whether occupation unlawful ─
doubt expressed about the applicability of PIE to housing
accommodation in official police quarters ─ in determining
whether notice provisions of PIE complied with court below elevating
form above substance.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
KwaZulu-Natal
High Court (Durban) (Sishi J sitting as court of first instance).
The appeal is dismissed with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Cloete, Cachalia, Bosielo
and Majiedt JJA concurring)
[1] The State is
the owner of Aurora Flats (the complex) situated at 133 Graypark
Road, Brighton Beach, Durban, KwaZulu-Natal. Flats
in the complex are
made available by the South African Police Service (SAPS) to its
members who qualify for housing in accordance
with the official
housing policy and guidelines. The question in this appeal is whether
the appellant, the Minister of Safety and
Security (the Minister),
lawfully terminated the respondent’s occupancy of flat 19
1
(designated as
married quarters) at the complex, rendering him liable to eviction.
The respondent, Mr Devarajh Moodley (Moodley),
is a member of
SAPS who holds the rank of Inspector. The history of Moodley’s
occupancy, the applicable statutory regime
and the events leading up
to the present appeal are set out hereafter.
[2] During 1995
Moodley applied for and was granted permission for the first time to
occupy flat 19 at the complex. The Police Act
7 of 1958 authorised
the making of regulations dealing with, inter alia, the provision and
occupation of official quarters by members
of SAPS, whether such
quarters are owned or rented by the State or placed at its disposal.
On 14 February 1964 regulations were
published dealing with the
occupation of such quarters by members of SAPS.
2
The relevant
sections are set out hereunder:
‘
78(1)
A member shall be obliged and may, subject to directions issued by
the Commissioner, be ordered to occupy quarters in possession
of, or
hired by, or otherwise placed at the disposal of the State,
irrespective of whether such quarters is a fixed or movable
structure
or a tent, and if the exigencies of the Force so require, a member
may be ordered to remain in such quarters and be available
at any or
during a specified time; provided that the provisions of this
sub-regulation shall not entitle a member to claim the
allocation of
such quarters; and provided further that, should the number of
applications for the allocation of quarters exceed
the number of
available quarters, such quarters shall be allocated either in
accordance with directions issued by the Commissioner
or by the
Commissioner in his discretion.
. . .
(4) The Commissioner may
at any time give a member notice to vacate quarters allocated to him,
and if given such notice, such member
shall vacate the quarters on
the date determined by the Commissioner; provided that if such a
member resigns or is discharged or
dismissed for any reason, the
quarters shall be vacated not later than the date of his discharge
referred to in sub-regulation
(4) of regulation 15; and provided
further that if such a member dies, the Commissioner may, in his
discretion, grant permission
to his household to remain in occupation
of such quarters for a short, reasonable period.’
[3] Although the Police Act 7 of 1958
was repealed and substituted by the South African Police Service Act
68 of 1995 (the SAPS
Act), the regulations were preserved by virtue
of s 72(4)(a) of the latter Act. Policy directives for occupation of
police quarters
were issued by the National Commissioner of Police
(the Commissioner) and amended from time to time.
[4] It appears that at the time
Moodley first took occupation of flat 19, the stipulated occupation
time cycle was three years.
Moodley successfully reapplied on two
further occasions after 1995 to have his occupation extended. One
such application was made
in October 2000 and approved in February
2001. The final paragraph of the letter notifying Moodley that his
occupation had been
extended until 30 June 2002 reads as follows:
‘
You
are hereby requested to make the necessary arrangements before the
expiry date.’
[5] Moodley, however, continued to
remain in occupation of the flat at the complex for a further period
of more than two years and
paid his occupancy rate, without demur by
the Minister. The problem culminating in this appeal arose in
February 2005, after new
policy guidelines were finalised. The policy
was published on 11 March 2005. It is necessary to have regard to its
material provisions.
The preamble reads as follows:
‘
1.
PREAMBLE
1.1 The South African
Police Service (SAPS) is a large and growing organization, with
limited housing facilities.
1.2 SAPS will endeavour
to allocate these limited facilities to its employees
on
a temporary basis
in the interest of the
Service. In doing so, SAPS will take due consideration of the
principles of accountability, transparency
and equity.
1.3 The employees have
the ultimate responsibility to provide housing either for themselves
and/or their dependents.’ (My
emphasis.)
The purpose of the policy is defined
as follows:
‘
2.
PURPOSE
2.1 The purpose of this
Housing Policy is to facilitate the provision of official housing to
employees in order to enhance the delivery
of services to communities
in terms of SAPS’ strategic objectives.
2.2 This policy regulates
the equitable and effective allocation of official housing to all
qualifying employees.
2.3 The policy defines
the criteria and circumstances under which the official housing can
be provided to employees of the SAPS.’
[6] Under the heading ‘Guiding
Principles’ it is recorded that the allocation of housing,
which is limited, will be
based on certain fundamental principles.
Amongst these are the promotion and enhancement of efficient,
effective and responsive
service delivery by SAPS. It is stated that
housing will be allocated in a fair, unbiased and non-discriminatory
basis. Clause
3.1.5 of the policy reads as follows:
‘
3.1.5
in allocating official housing, priority should, as far as possible
be given to employees at lower levels.’
[7] Clause 9 of the policy sets out
the criteria for allocation of housing. Importantly, consistent with
the regulations referred
to above, two years is the specified time
for which housing is to be allocated. Understandably, a fundamental
requirement is that
an applicant must be an employee of SAPS.
Allocation of housing is stated to be subject to availability and
funding. The housing
policy provides for the withdrawal of housing to
employees whose services are terminated as a result of resignation,
dismissal
or retirement.
[8] Under the heading ‘Transitional
Measures’ the following appears:
’
13.1
The current occupants of official housing must apply to the relevant
housing committee referred to in Paragraph 6 for continued
occupancy
of such houses within 3 months of the date of implementation of this
policy.
13.2 In the event an
occupant who applied in terms of 13.1 above, does not qualify for
official housing, he or she may continue
occupying the official house
for a period not exceeding twelve months from the date of
implementation.
13.3 The committee shall
consider such applications according to the principles and criteria
contained in this policy.
13.4 The transitional
measures will come into effect from the date of implementation of
this policy and shall lapse after a period
of twelve months.
13.5 This policy replaces
all existing policies regarding the allocation of housing to
employees in the Service.’
[9] During March or April 2005, after
the new housing policy came into being, Moodley, together with other
residents at the complex,
attended a meeting convened by
Superintendent De Villiers, the station Commander at Brighton Beach.
The Superintendent informed
those present that there was a new
housing policy in place and that all occupants of the complex were
required to make applications
anew for housing, failing which they
would be required to vacate the flats they occupied. According to
Moodley, they were assured
that the new applications would merely
constitute a ‘process’. This was the first Moodley had
heard of the new housing
policy. He requested a copy of the policy
and was told that it would be supplied later. He only received a copy
in 2007.
[10] As instructed, Moodley completed
the official application forms and submitted it to the relevant
committee. On 6 February 2006
he was advised that his application was
unsuccessful and that he had to vacate his quarters at the complex by
7 May 2006. After
being so informed, Moodley made representations to
remain in occupation of the flat. He was granted an extension to
remain in the
flat until 31 December 2006.
[11] The letter dated 6 February 2006,
informing Moodley that his application was unsuccessful and which
purported to terminate
his occupancy, reads as follows:
‘
SOUTH
AFRICAN POLICE SERVICE: RE-APPLICATION FOR OFFICIAL MARRIED QUARTERS:
RE-ALLOCATION 2005: DURBAN SOUTH AREA
1. Your application
refers.
2. You are hereby
informed that all the applications were presented before the National
Housing Committee, by the Office of the
Province Commissioner:
Kwa-Zulu Natal, the consensus was reached that all the members who
have resided in official married quarters
for (5) years and more
should be given (3) months notice to vacate the official married
quarter.
3. Unfortunately your
application was unsuccessful, therefore you are hereby given (3)
months notice as from the 7
th
of February 2006 to the 7
th
of May 2006 to vacate the official married quarter that
you are currently occupying.
4. The keys should be
handed over to the Logistical Oficer at your station, and should you
have any enquiries, you can contact Snr
Supt Mkhize or Supt Ndlovu at
the above contact details.’
[12] According to Moodley he
subsequently made representations to remain in his quarters, which
were construed by SAPS as representations
for an extension of time
within which to vacate. In his representations Moodley set out his
personal particulars, including those
that related to and impinged on
his family.
[13] At this stage it is necessary to
have regard to proceedings before the Rental Housing Tribunal and
other litigation skirmishes
between the parties. During 2006 and 2007
another occupant of official quarters engaged SAPS before the Rental
Housing Tribunal.
There is some dispute about the nature and timing
of Moodley’s complaints before the housing tribunal against
SAPS in relation
to his occupancy of quarters at the complex. For
present purposes it is not necessary to deal with those disputes. In
2007 Moodley
obtained an interim interdict in the Durban High Court
against SAPS, prohibiting renovations at the complex pending the
outcome
of proceedings before the Rental Housing Tribunal. During
March 2007 Moodley instituted further proceedings in the high court,
seeking an order declaring the Provincial Commissioner to be in
contempt of the earlier interim interdict. Before all this litigation
was finalised the parties entered into a settlement agreement, the
material part of which reads as follows:
‘
Upon
completion of the renovations to Aurora Flats, the Applicant
[Moodley] would be entitled to move back to Flat 36, Aurora Flats,
being the flat occupied by him prior to commencement of renovations,
save that the agreement relating to the Applicant moving back
to the
said flat is without prejudice to any action for ejectment against
the Applicant which may be contemplated.’
[14] Moodley and his family were
accommodated at an alternate venue during the renovation period. SAPS
subsequently adopted a position
in terms of which it did not
recognise that Moodley was entitled to return to the complex, as a
result of which he instituted proceedings
in the high court to be
reinstated in occupation. In response the Minister instituted a
counter-application seeking an order declaring
that Moodley’s
occupation was lawfully terminated and claiming his eviction. Pending
the finalisation of the counter-application,
in terms of an agreement
that was made an order of court, Moodley moved back into his quarters
at the complex. The litigation in
the court below proceeded on the
basis that only the counter-application was to be adjudicated by the
Durban High Court.
[15] In his opposition to the
counter-application Moodley took a point
in limine
, namely,
that the Minister had not complied with applicable provisions of the
Prevention of Illegal Eviction and Unlawful Occupation
of Land Act 19
of 1998 (PIE). Furthermore, in his affidavit opposing the
counter-application, Moodley, whilst acknowledging that
the
Commissioner of SAPS has a discretion to order a member of SAPS to
vacate a flat at the complex, contended that this discretion
must be
exercised with due regard to the principles of natural justice and
the provisions of the Promotion of Administrative Justice
Act 3 of
2000 (PAJA). He contended that he ought to have been given adequate
prior notice of the nature and purpose of the administrative
action
in terms of which his occupancy was purportedly terminated.
[16] In his opposing affidavit Moodley
emphasised that he had not been provided with an opportunity to make
representations in relation
to the administrative action that led to
the termination of his occupancy. Moodley submitted that his
representations to remain
in occupancy were misconstrued as
representations for an extension of time within which to vacate the
quarters. Moodley was aggrieved
that the new housing policy had been
rigidly applied without due regard to his circumstances as set out in
the representations
made by him. He complained that insofar as he had
made representations to remain in occupation, after the new policy
had been presented
as a
fait accompli,
he was not informed
about the outcome of his representations. It is clear from the
replying affidavit on behalf of the Minister
that Moodley’s
representations were considered only in relation to the time within
which Moodley was required to vacate his
quarters at the complex,
after his occupancy had purportedly been terminated, and not in
relation to his continued occupation in
light of the new policy.
[17] The housing committee charged
with the administration of the housing policy decided to grant
Moodley an extension of time to
vacate until 31 December 2006.
The SAPS Area Commissioner wrote a letter to a number of occupants of
official quarters, including
Moodley, informing them that the
extension until 31 December 2006 was a ‘last and final
notice’. It is common
cause that the extension was ‘uniform
for all affected members’. The complaints to the Rental Housing
Tribunal and
the litigation referred to above followed.
[18] The counter-application was heard
and decided by the Durban High Court (Sishi J). It is that decision
which is the subject
of the present appeal. It is before us with the
leave of the court below. It appears that in argument in the court
below Moodley’s
erstwhile counsel was content to rely
principally on the point
in limine
in relation to the alleged
failure by SAPS to comply with the
peremptory notice provisions of PIE.
He also made submissions based on the provisions of the
Extension of
Security of Tenure Act 62 of 1997
, which were rightly rejected by the
court below and not persisted in before us. Moodley’s present
counsel readily conceded
that Moodley’s principal reliance on
PIE in the court below was misplaced. The correctness of this
concession will soon become
apparent.
[19] In considering the point
in
limine
, Sishi J recorded that the Minister had adopted the
position that PIE did not apply to Moodley’s occupancy of the
quarters
at the complex. Sishi J had regard to the submission on
behalf of the Minister that the occupation of police quarters fell
into
a special category, freeing it from the application of PIE. It
had been contended on behalf of the Minister that the regulatory
statutory framework applying to members of SAPS made it clear that
the housing provided was inextricably linked to employment with
SAPS
and was of temporary duration. The learned judge rejected these
submissions and concluded as follows:
‘
Section
2
of the
PIE
deals
with the Application of the Act. It provides that this Act applies in
respect of all land throughout the Republic. Land is
defined as
including a portion of land. Furthermore, “
building
or structure, in terms of the Act, includes any hut, shack, tent or
similar structure or any other form of temporary or
permanent
dwelling, or shelter, even section 6 of the PIE, deals with eviction
at the instance of an organ of state. Section 6(1)
provides that an
organ of state may institute proceedings for an eviction of an
unlawful occupier from land which falls within
its area of
jurisdiction
.
. .” ‘
[20] Without any consideration of the
facts impacting on the legality of Moodley’s continued
occupation of the flat, the court
below said the following:
‘
The
Respondent in the counter-application fits perfectly within the
definition of “unlawful occupier” in terms of the
Act
[and] the premises in question [falls] with[in] the definition of
building or structure as defined in the Act.’
Sishi J held that PIE was applicable.
[21] The learned
judge went on to consider whether the Minister had complied with the
notice provisions of PIE, contained in s 4.
3
The learned judge
stated that the purpose of s 4 of PIE is clear, namely, to inform
defendants or respondents of their rights and
to enable them to
contest their intended eviction.
[22] In the present case, after
Moodley had raised the provisions of PIE as a defence, the Minister
proceeded to serve the counter-application
on the eThekwini
Municipality and once more on Moodley’s attorney, after it had
applied separately to the high court for
authorisation to do so.
[23] In considering whether the
Minister had complied with the provisions of PIE, Sishi J had regard
to a decision of the full court
(Levinsohn J) in
Ubunye
Co-operative Housing (Association incorporated under Section 21) v
Joyce N Mbele & others
(54/05/01)
[2005] ZAKZHC 13
(22
September 2005) where the following was said:
‘
Section
4(1) speaks of “proceedings . . . for the eviction of an
unlawful occupier”. It is at once clear from section
4(2) that
what has to happen before the hearing of the proceedings is that “a
notice of these proceedings” must be
served on the unlawful
occupier, and the Municipality. That must take place fourteen days
before the hearing of those proceedings.
Section 4(2) lays down that
the notice of proceedings must state the matters which are set forth
in sections 4(5)(a), (b), (c)
and (d) respectively. These subsections
provide that the respondent is told in the notice that proceedings
for eviction are being
sought, the date and time when the court will
hear the proceedings, the grounds for the proposed eviction, that the
Respondent
is entitled to appear in court to defend the case and if
necessary he or she has the right to apply for legal aid. These
requirements
are peremptory.‘
[24] Sishi J went on to hold that it
was clear that the Minister had failed to comply with the peremptory
provisions of PIE. He
said the following in this regard:
‘
In
the present case, the Court is faced with the position where there is
no mention made in the counter-application of the fact
that this is a
PIE
application.
There is no mention made in the founding papers that this is a
PIE
application.
Then a subsequent application is made on an ex-parte basis for
authority to serve the notice in terms of
PIE
.
The notice which was served was also grossly deficient. The first
obvious point about this notice is that the Applicant did not
allege
that this is a
PIE
application
to begin with. Mr Collingwood submitted that in such circumstances it
is difficult to conceive how this can be a
PIE
notice
when the Applicant is not proceeding in terms of
PIE
.
The provisions of section 4(5) makes it clear that the certain
requirements in terms of the Act must be complied with and that
the
notice of those proceedings must state that the proceedings are being
instituted in terms of section 4(1) of the
PIE
.
It has been pointed out earlier on in this judgment that the notice
falls short in that regard.’
These are aspects which I will address
briefly later in this judgment.
[25] The court below reasoned that
since the Minister had disavowed the application of PIE it was
difficult to see how the application
that was brought for Moodley’s
eviction could be construed as being within the purview of that
legislation. Consequently,
the Minister’s application for
Moodley’s eviction was dismissed with costs.
[26] The fundamental flaw in the
approach of counsel and Sishi J in the proceedings in the court below
was to disregard the primary
question of the lawfulness of the
termination of Moodley’s occupancy. It was the anterior
question that ought to have been
asked and answered. I have serious
reservations about whether PIE applies to the occupation of official
police quarters, an aspect
that is dealt with later in this judgment
at paras 42 to 45. However, even assuming PIE to be applicable,
counsel and the court
below failed to consider that the very basis
for an application for eviction in terms of PIE is unlawful
occupation. It is a jurisdictional
fact necessary for the act to
apply. In
Ndlovu v Ngcobo, Bekker & another v Jika
2003
(1) SA 113
(SCA)
this court said the following at para
1:
‘
The
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (herein called “PIE”) gives “unlawful
occupiers” some procedural and substantive protection against
eviction from land. The question that arises is whether “unlawful
occupiers” are only those who unlawfully took possession of
land (commonly referred to as squatters) or whether it includes
persons who once had lawful possession but whose possession
subsequently became unlawful. In the
Ndlovu
appeal
the tenant’s lease was terminated lawfully but he refused to
vacate the property. In the
Bekker
appeal
a mortgage bond had been called up; the property was sold in
execution and transferred to the appellants; and the erstwhile
owner
refused to vacate. In neither case did the applicants for eviction
comply with the procedural requirements of PIE and the
single issue
on appeal is whether they were obliged to do so.’
[27] In
Ndlovu
this court held
that PIE applied where a lease was terminated and when a mortgagor
defaulted, and where either continued in occupation,
notwithstanding
a demand to vacate.
[28] It is
therefore clear that before the protective provisions of PIE can be
held to apply and long before the court goes over
to considering
whether an eviction in terms of s 4(8)
4
should follow, the
unlawfulness of the continuing occupation has to be established.
[29] The heads of argument in this
court on behalf of both parties were initially restricted to the
question whether PIE applied
to the circumstances of this case. At
our request, through the office of the Registrar, counsel, upon short
notice, addressed the
question whether Moodley had a valid defence in
terms of PAJA. We are grateful to counsel for their prompt response.
I now turn
to deal with the PAJA defence raised on behalf of Moodley
in the court below.
[30] It was not
contested before us that the purported termination of Moodley’s
occupation of the flat at the complex was
‘administrative
action’ as defined in s 1 of PAJA.
5
The constitutional
right to procedurally fair administrative action embraces the
well-established common-law concept of ‘natural
justice’.
Even during the days preceding our interim and present Constitution
our law was that when a statute empowered a
public official or body
to give a decision prejudicially affecting an individual in his/her
liberty or property or existing rights,
the individual had a right to
be heard before the decision was taken, or in limited instances
thereafter. This found expression
in the maxim
audi
alteram partem
.
In adjudicating whether administrative action was just, which is
synonymous with the principle of administrative legality,
6
our courts have
steadily moved from a formalistic and narrow approach to the rules of
natural justice towards a broad and flexible
duty to act fairly in
all cases. This court played a significant role in the dynamic
evolution of the law in this regard.
7
[31] Professor
Hoexter at p 327
8
puts it thus:
‘
Procedural
fairness has, in fact, become one of the most interesting and vibrant
areas of South African administrative law. This
development has
followed a similar trend in the United Kingdom, but in South Africa
it has gained momentum particularly from the
creation of
constitutional rights to administrative justice and (more recently)
the provisions of the PAJA.’
[32] Sections 3(1) and 3(2) of PAJA
provide:
‘
(1)
Administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally
fair.
(2)
(a)
A fair administrative procedure depends on the
circumstances of each case.
(b)
In
order to give effect to the right to procedurally fair administrative
action, an administrator, subject to subsection (4), must
give a
person referred to in subsection (1)─
(i) adequate notice of
the nature and purpose of the proposed administrative action;
(ii) a reasonable
opportunity to make representations;
(iii) a clear statement
of the administrative action;
(iv) adequate notice of
any right of review or internal appeal, where applicable; and
(v) adequate notice of
the right to request reasons in terms of section 5.’
[33] Section 3(4)(a) states that if it
is reasonable and justifiable in the circumstances an administrator
may depart from any of
the requirements referred to in s 3(2). There
was no substantive engagement by the Minister in his replying
affidavit with Moodley’s
assertions about the failure by SAPS
to comply with the provisions of PAJA. Nor was there an attempt made
by the Minister at any
stage to justify a departure from the
requirements of s 3(2) of PAJA.
[34] In dealing
with the minimum requirements of s 3(2), Hoexter rightly states that
notice of impending administrative action to
an affected party is
essential in South African law. Turning to the adequacy of the
required notice the learned author suggests
that it implies
sufficient information to enable a person to exercise his or her
rights.
9
She states the
following:
‘
As
far as information about the proposed action is concerned, it seems
clear that its nature and purpose must be described with
sufficient
particularity, or the right to make representations will be illusory
rather than real.’
10
[35] Moodley was not told that a prior
five year occupation period would be viewed by the housing committee
as an absolute disqualification.
Thus, he was not afforded an
opportunity to make any representations in relation thereto. The
parties were also at cross-purposes
in relation to the object of the
representations made by Moodley: He thought he was making
representations in relation to continued
occupation whilst the
committee apparently considered the representations in relation to an
extension of time within which to vacate
the premises.
[36] Usually the
opportunity to make representations should be offered before any
decision is taken. There is good reason for this.
If an opportunity
is only offered subsequently, the affected person would probably have
to do much more to dislodge a decision
already taken.
11
In the present
case, no case was presented for not providing an opportunity before
the decision was taken. In any event, the representations
in relation
to the administrative decision in question went altogether unheeded.
[37] Furthermore,
as stated above, the National Housing Committee adopted an inflexible
attitude in relation to persons who had
occupied official quarters at
the complex for more than five years. The policy itself did not
dictate such inflexibility. In respect
of the period itself affected
parties might have had something to say. The inflexibility of the
Committee effectively precluded
a proper consideration of Moodley’s
circumstances. The decision as a result of the Committee’s
absolute inflexibility
is also arguably, on the face of it,
irrational and can on that basis alone be impugned.
12
This does not mean
that the lengthy period of Moodley’s prior occupation is not a
relevant factor to be taken into account
in finally deciding whether
his occupancy should be terminated. It obviously is.
[38] It was not submitted on behalf of
the Minister, nor could it be, that SAPS was at large to terminate
occupation of official
quarters without following due process. Whilst
on the face of it Moodley appears to have been afforded a
considerable time in official
quarters ─ more than a decade ─
he is entitled to be dealt with as required by law. It does not mean,
and this was
accepted by his counsel, that SAPS is unable to
terminate his tenancy after following legal prescripts and in a
manner that is
administratively fair and just.
[39] There is no merit to the
submission on behalf of counsel for the Minister that Moodley was
precluded from relying on the provisions
of PAJA because he had not
earlier instituted an application to review the decision of the
housing committee or any other entity
falling under the authority of
SAPS. The submission does not take into account that Moodley was a
respondent opposing an application
for eviction. There had been a
number of other legal skirmishes and delays in finalising the dispute
between the parties. On the
common cause facts it was clearly
established that his occupancy had not been lawfully terminated. I
have difficulty in understanding
what more he could have done or
indeed why he should do anything further.
[40] In light of the common cause
facts in the present case, the question of onus does not arise.
Neither a statutory body nor a
private landlord nor an owner could
succeed in litigation in which it sought to evict a person unless
that individual’s occupation
was unlawful. Once it is
established that the termination of Moodley’s occupancy was
unlawful that is the end of the matter.
One need not determine
finally whether PIE applies to situations where police personnel
continue in occupation of official quarters
after a valid termination
by SAPS.
[41] To sum up: in the present case
SAPS did not follow the most fundamental requirements for a fair
procedure before or after taking
a decision to terminate Moodley’s
tenancy. It adopted an inflexible attitude and effectively precluded
a proper consideration
of Moodley’s circumstances and all other
relevant factors before taking a decision to terminate his occupancy
of the flat.
The purported termination of Moodley’s occupation
was thus unlawful and the Minister’s application for eviction
could
not succeed.
[42] Notwithstanding the conclusions
in the preceding paragraphs, I nevertheless deem it desirable to deal
briefly with the nature
of occupancy of police quarters and the
applicable statutory regime. I also intend to comment briefly on part
of the reasoning
of the court below in relation to the application of
the notice provisions of PIE. This is necessary because counsel for
both parties
informed us that the decision of the court below might
lead to uncertainty and confusion about the application of s 4 of
PIE.
[43] First, the nature of occupancy of
police quarters and the application thereto of PIE. Moodley’s
counsel was constrained
to concede that the regulations bearing on
official police quarters and the concomitant policy were in
themselves eminently reasonable.
Occupational transition from more
experienced and higher ranking and higher earning police personnel ─
in a filter-down rotational
movement ─ towards lower ranking
police who earned lower salaries and who might be struggling
financially and might themselves
be in dire need of housing, seems
sensible and practical. Police quarters and army barracks can by
their very nature not be allocated
in perpetuity. Operational and
strategic exigencies militate against that notion.
[44] Since
Ndlovu
this court has seen
fit progressively to limit the application of PIE, a statute that was
initially interpreted as being of application
to all housing, without
exception. In subsequent judgments this court was at pains to point
out that PIE was intended to protect
unlawful occupiers who were poor
and vulnerable and observed that persons who were not intended to be
beneficiaries were seeking
to bring themselves within its ambit.
13
For present
purposes an extensive examination of those decisions is not
necessary. It suffices to state that it is now established
that there
are exceptions to the application of PIE.
[45] For the reasons stated in the
preceding paragraphs and because there is a separate statutory regime
dealing with housing for
members of SAPS, which is an essential part
of the country’s security component, I have grave doubts
whether PIE applies
to the provision of official quarters by SAPS. As
stated earlier it is not necessary to decide that question finally.
[46] I now turn to
deal with the reasoning of the court below in relation to the notice
provisions of s 4 of PIE. It is undoubtedly
so that the application
by the Minister was for Moodley’s eviction from the complex.
No-one could have been under any illusion
of its purpose. Moodley was
at all material times legally represented. He was aware of the
provisions of PIE and this was emphatically
demonstrated by the point
he took
in
limine
,
referred to above. The relevant municipality was served with the
notice of motion and its annexures. The object of PIE was clearly
achieved.
[47] In
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) para 22 this court said the following:
‘
[I]t
is clear from the authorities that even where the formalities
required by statute are peremptory it is not every deviation
from the
literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defects, the object
of the statutory
provision has been achieved (see eg
Nkisimane
and Others v Santam Insuarnce Co Ltd
1978
(2) SA 430
(A) at 433H-434B;
Weenen
Transitional Local Council v Van Dyk
2002
(4) SA 653
(SCA) in para 13).’
See also
Moela
v Shoniwe
2005 (4) SA 357
(SCA) para 8 and more recently
Norgold
Investments (Pty) Ltd v The
Minister of Minerals and Energy of the Republic of South Africa &
others
(278/10)
[2011]
ZASCA 49
(30 March 2011) paras 43 and 44.
[48] To hold as the court below did
that PIE had not been complied with because the statutory notice had
been given by the Minister
only after the point
in
limine
had been raised and
because the notice of motion had made no reference to provisions of
PIE, is to elevate form above substance.
[49] In addition, the court below
erred in holding it against the Minister that he had contended that
PIE did not apply whilst at
the same time seeking to persuade the
court that he had complied with the notice provisions of s 4. A
litigant is within his rights
to challenge the applicability of PIE
whilst at the same time, out of caution, complying with its notice
provisions. There is nothing
inconsistent or objectionable in a
litigant advancing a point of law and in the alternative, relying on
a fact.
[50] Even though the reasons
underpinning the Minister’s failure in the court below are
fallacious, for all the reasons stated
above, the appeal must fail.
The order made by the court below remains unaltered. Counsel for the
parties reached agreement on
the procedure to be followed in a proper
consideration of Moodley’s continued occupancy, in the event
that the appeal was
unsuccessful, and were content for us to record
the arrangement in this judgment. That agreement was:
‘
1.
The respondent is to make representations with regard to the
correctness or otherwise of the decision taken on 6 February 2006
that because the respondent had already been in occupation for five
years he could not qualify for the allocation of housing.
2. The said
representations are to be made within 30 days of the date of the
order.
3. The Provincial
Commissioner is to consider the said representations and make a
decision thereon within 30 days and is to give
written reasons for
the decision within 30 days thereafter.
4. The respondent is
thereafter entitled to pursue any internal remedy or take any steps
under PAJA that he may be entitled to.’
[51] For the reasons set out above,
the appeal is dismissed with costs.
__________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: M Govindasamy SC
Instructed by
State Attorney Durban
State Attorney Bloemfontein
For Respondent: C G Marnewick SC
Instructed by
Viren Singh & Company Durban
Mthembu & Van Vuuren Inc
Bloemfontein
1
Flat
19 was formerly flat 36. A renumbering exercise caused the change.
2
Regulations
for the South African Police GN R 203, GG 299, 14 February 1964.
3
The
relevant parts of s 4 read 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.’
4
Section
4(1) provides that the provisions of s 4 apply to proceedings by an
owner or person in charge of land for the eviction
of ‘an
unlawful occupier’. The notice provisions provided for in
subsecs 4(2) to 4(5) are required to be served on
the ‘unlawful
occupier’. Section 4(8) provides:
‘
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)
.’
5
The
relevant part of s 1 reads as follows:
‘
In
this Act, unless the context indicates otherwise─
‘
administrative
action’ means any decision taken, or any failure to take a
decision, by─
(a)
an organ of state,
when─
(i) exercising a power
in terms of the Constitution or a provincial constitution; or
(ii) exercising a public
power or performing a public function in terms of any legislation;
or
. . .
which
adversely affects the rights of any person and which has a direct,
external legal effect. . .’
6
See
Y Burns ‘Administrative Law’ 1
Lawsa
(2 ed) para
74.
7
See
Administrator Transvaal & others v Traub & others
[1989] ZASCA 90
;
1989
(4) SA 731
(A). See Hoexter
Administrative Law in South Africa
(2007) at p 327.
8
Op
cit
p 327.
9
In
this regard she refers to Jonathan Klaaren
The
Promotion of Administrative Justice Act Benchbook
(2001)
paras 3.12 and 3.13.
10
Hoexter
p 333.
11
See
Traub
at
750C-D.
12
See
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another (338/10) [2011] ZASCA 47 (30
March 2011)
and
Pharmaceutical
Manufacturers Association of SA & another: In Re Ex Parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 85.
13
Webtrade
INV No 45 (Pty) Ltd and Other v Andries Van Der Schyff en Seun (Pty)
Ltd t/a Complete Construction
(589/06)
[2007] ZASCA 104
(17 September 2007) para 18 and
Barnett
& others v Minister of Land Affairs
2007
(6) SA 313
(SCA). See also
Wormald NO &
others v Kambule
2006 (3) SA 562
(SCA)
para 20.