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[2022] ZAMPMBHC 29
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Albert Luthuli Local Municipality and Another v Erwe 201 and 207 Germiston West CC and Others (2822/2027) [2022] ZAMPMBHC 29 (11 May 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 2822/2027
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
11/05/2022
In
the matter between:
ALBERT
LUTHULI LOCAL MUNICIPALITY
First Applicant
MANDLA
STANLEY
DLAMINI
Second Applicant
and
ERWE
201 AND 207 GERMISTON West CC
First Respondent
CAMBRIDGE
DLAMINI
Second Respondent
FOREVER
RESORTS AVENTURA (PTY) LTD
Third Respondent
MEC
FOR HUMAN SETTLEMENT: MPUMALANGA
Fourth Respondent
MINISTER
OF HUMAN SETTLEMENT
Fifth Respondent
CHIEF
LAND CLAIMS COMMISSIONER
Sixth Respondent
J
U D G M E N T
MASHILE
J:
INTRODUCTION
[1]
On 5 July 2011 and 4 April 2017 under case numbers 2011/21894 and
2016/582 respectively,
this Court granted orders against the
Applicants. I will traverse the orders as the judgment unfolds but it
should suffice for
now to state that this application traces its
origins to those two orders granted in favour of the First Respondent
(“Erwe
201”). The Applicants now seek an order to set
them aside. Additionally, and only in the alternative, they are
asking this
Court to direct:
1.1
The sixth Respondent (“the Commissioner”) to consider
whether or not to grant authority
for the eviction of the occupiers
of The Remaining Extent of Portion 14 of the Farm Doornpoort 724,
Registration Division JT, Mpumalanga
(“the property”);
1.2
The Commissioner to consider whether or not to grant authority for
the demolition of the dwelling
structures erected by the occupiers on
the property;
1.3
The Third Respondent (“Forever Resorts”) to apply to a
competent Court for the eviction
of the occupiers of the property
only in the event that the consent of the occupiers to occupy the
property has been lawfully withdrawn
or set aside by a competent
Court and the Commissioner has granted written approval for such
eviction;
1.4
The fourth and fifth respondents (“The MEC”) and (“the
Minister”) to provide
the necessary financial assistance which
would be required by the First Applicant (“the Municipality”)
to provide alternative
accommodation to the occupiers of the property
in the event that an order for their eviction from the property is
granted.
FACTUAL BACKGROUND
[2]
The facts that preceded the granting of the 2011 order were that the
Second Respondent
(“Dlhamini”), ostensibly a traditional
leader of the occupiers of the property, was marking out
stands,
which he subsequently either sold or let to members of the public.
Once purchased or rented the stands, they proceeded to
erect informal
buildings and/or residential structures thereon. The farm on which
these activities took place belongs to Forever
Resorts and it is not
a legally proclaimed township. The farmland is adjacent to the
established town of Badplaas. Erwe 201 alleges
that in demarcating
and selling the stands to members of the public, Dlhamini did not
have any right to do so.
[3]
Erwe 201 owns immovable property that borders directly on the
property. When it launched
the application that led to the 2011
order, it alleged that it was entitled to proper, organized,
controlled and legal development
and use of fixed properties. In
terms of Section 152 of the Constitution, the Municipality has a duty
to protect rights and to
enforce applicable legislation and
regulations. It is in that context that it obtained the 2011 order
against the Municipality.
[4]
It is common cause that no plans were ever submitted or approved by
the Municipality
for the erection of these informal structures. No
services were provided to the newly demarcated stands other than
electricity.
In 2010 Forever Resorts obtained an interdict
restraining Dlhamini from marking out, selling and letting stands to
members of the
public or passing himself off as the owner of the
property.
[5]
It appears that the 2010 order referred to
supra
was subsequently abandoned when Erwe 201 obtained a court order on 5
July 2011 (“2011 order”) against the Municipality.
I will
revert to this order fully below. That said, Erwe 201 alleges to have
made written representations to the Municipality concerning
the
existence of the alleged illegal informal structures but the latter
would not do anything about them. To come back to the
2011
order, it appears that Erwe 201 obtained an order against the
Municipality. I say appears because the authenticity and as such,
its
validity is questioned by the Municipality.
[6]
Having called the court order into question, the Applicants
nonetheless proceeded
to deal with its contents as though it is
valid. The order does not conform to the normal insofar as it does
not display the name
of the judge who granted it thus giving the
impression that it was the registrar of court who did so. Although I
too have my own
reservations, I will proceed as though it was validly
granted and that its format is acceptable. This will be explained by
the
view that I take of the matter later.
[7]
I will henceforth refer to the First and Second Applicants jointly as
Applicants otherwise
and depending on the context, as the
Municipality and Municipal manager. The 2011 order was against the
Municipality and its manager
who was cited as the Fourth Respondent.
It provided as follows:
“
2.1
The third and fourth respondents are ordered to, within seven days
after the granting of this order,
commence with steps against the
occupiers of the following property for an interdict to stop all
building activities thereon: The
Remaining Extent of Portion 14 of
the Farm Doornpoort 724, Registration Division JT, Mpumalanga …
2.2
The third respondent is ordered to, within seven days after the
granting of this order:
2.2.1
Commence with action in terms of section 21 of the National
Building
Regulations and Standards Act, 103 of 1977 by making an application
to the Magistrate’s Court having jurisdiction
for an order
prohibiting the occupiers on the property from commencing or
proceeding with the erection of any building or structures
on the
property and an order authorizing the third respondent to demolish
all buildings and structures already erected on the property,
on the
ground that such buildings or structures were erected contrary to or
without compliance with the provisions of the said
Act; and
2.2.2
Apply for the eviction of the occupiers on the property
in terms of
Section 6 of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998.”
[8]
It is not disputed or, at least not seriously so, that some of the
allegations that
Erwe 201 had to make in its founding affidavit to
persuade the court in 2011 to grant the 2011 order as described
supra
are that:
8.1
The property belongs to Forever Resorts;
8.2
Forever Resorts has a legal duty to prevent the commission of any act
or omission which
constitutes a nuisance to such other owners or the
public at large or which constitute a transgression of legislation
and regulations
applicable to the property;
8.3
The municipality is responsible for the enforcement of all legal
requirements in respect
of land usage and erection of buildings and
structures on the property and to control the occupation of the
property;
8.4
That Dhlamini, illegally and without any right or title to do so,
took possession of the
property and illegally measured out stands
which he sold to members of the public, the proceeds of which he is
pocketing for his
own use;
8.5
Dhlamini gave people access to stands to erect informal houses, some
of which he let to
other people;
8.6
No building plans were ever submitted or approved by the municipality
in respect of the
structures erected and being erected on the
property; and
8.7
Dhlamini “continued selling land or stands to members of the
public at any price from
R200.00 upwards” and that Forever
Resorts “also has this information in its possession and
indicated that it would
bring a contempt of court application but has
failed to do so to date.
[9]
The Applicants allege that it is obvious that When the court granted
the 2011 order,
it had been swayed to believe, among other things,
that Dlhamini had sub-divided the property into stands to facilitate
sale and
purchase of the stands from him the proceeds of which he
kept for his personal gain. The purchase prices paid for the stands
by
the occupiers were for purposes of acquiring their ownership and
subsequent occupation. The Applicants allege further that Forever
Resorts, the owner of the property, was at all material times,
cognisant of the conduct and actions of Dlhamini but would not
intervene to thwart them.
[10]
It is common cause that the occupation of the stands was sanctioned
by Dhlamini. It is also indubitable
that Forever Resorts knew or
ought to have known or tacitly consented to the occupation of the
stands because its conduct or omission
or refusal to evict is
reminiscent of a party that has done so. Moreover, the property has,
since the advent of the restitution
legislation, been the subject of
pending land claims and is now in the Land Claims Court. The
occupiers of the stands regard and
recognised Dlhamini as their
traditional leader. For that reason, they purchased the stands
believing that he has the authority
and right to sell the stands to
them.
[11]
On 4 April 2017 and following a contempt of court application that
served before him, Thobane
AJ granted an order allegedly in the
absence of the Applicants declaring the Municipality to be in
contempt of the 2011 order.
I say allegedly because this is contested
by Erwe 201, which states that the legal representatives of the
Applicants went to see
him in his chambers wanting to see the file,
which he refused to do as he felt that it was both improper and in
any event, he was
busy with it. He then went on to sentence its
manager for the time being or its successor in title to sixty days
imprisonment,
which he suspended for a period of two years provided
that the Municipality is not found guilty of contempt of court within
the
period of suspension. Lastly, the municipality was directed to
comply with the 2011 order.
[12]
The facts that served before Thobane AJ’s court were that in
2009, Dhlamini took possession
of the property, which he subsequently
subdivided. He then proceeded to sell the stands to his subjects at a
fee following which
an informal structures emerged. Unperturbed by
the 2011 order, Dlhamini proceeded to allocate stands without any
inhibitions or
limitations. This ultimately instigated the launching
of the 2017 contempt proceedings against the Municipality and its
manager.
[13]
Thobane AJ remarks in his judgment that in the 2011 application Erwe
201 placed Forever Resorts
and Dlhamini at the core of the land
occupation dispute but shockingly sought no relief against the two.
This behavior offered
by Erwe 201 is inconsistent with the complaints
raised in its founding affidavit when it sought the order. This is a
passage that
Thobane AJ uplifted from its founding affidavit:
“…
The
public at large, in particular the applicant, are entitled to
protection against these activities and to proper, organized,
controlled and legal development and use of fixed properties. The
first, fifth and seventh respondents are obliged to protect the
rights and to enforce applicable legislation and regulations. In the
meantime, the fifth respondent turns a blind eye to the problem
of
illegal activities on their land.”
[14]
The conduct of Erwe 201 can only be understood against the background
of the agreement that it
concluded with Forever Resorts and Dlhamini,
which is that notwithstanding the complaints against them no relief
would be sought
against both. The Applicants make the point that the
Municipality is not a party to the aforesaid agreement and it does
not concede
that Dhlamini and Forever Resorts should not be held
liable for the complaints upon which Erwe 201 relied when it obtained
the
two orders.
[15]
Erwe 201, as an applicant in the 2017 application, which Thobane AJ
granted on 4 April 2017,
sought relief in the following terms:
“
11.1
That the Municipality Manager be joined as a respondent in the 2017
application as the successor in title of the
Municipality’s
previous Manager to make the orders granted under case number
2011/21894 and 2016/582 become applicable to
him and that he then be
bound by them;
11.2
That it be declared that the Municipal manager, the municipality,
Dlhamini and Forever Resorts are in contempt
of the orders granted
under case numbers 2011/21894 and 2016/582;
11.3
That it be directed that the Municipality Manager and Dlhamini be
committed to jail for a period of twelve
months for contempt of
court;
11.4
That it be directed that the suspended sentence granted under case
number 2016/582 be implemented;
11.5
That the Municipal Manager and the Municipality are in breach of
various constitutional obligations, amongst
others, to provide
alternative accommodation to the unlawful occupiers of Forever
Resorts’ property;
11.6
That Forever Resorts be directed to launch an eviction application
for the eviction of the unlawful occupiers
on its property;
11.7
That the Municipality be directed to demolish all the illegal
structures and buildings erected on Forever
Resorts’ property.”
[16]
The appointment of the Municipality Manager against whom the prayers
above are meant to apply
only took effect on 1 October 2016. The
upshot of the relief sought against the Municipality Manager was
that, as the successor
in title, he was then to be immediately
committed to prison for a period of 60 days. This is as per the 2017
order granted under
case number 2016/582. It is common cause that the
Municipality Manager was not a party to the application under case
number 2016/582.
Although it is apparent that the 2017 order was
directed against the Municipality manager’s predecessor, the
order is specific
that it is the successor in title would be
incarcerated in circumstances where his predecessor has vacated
office.
[17]
The above constitutes the contextual foundation on which the court is
to determine this matter.
The Applicants are contending that the 2011
order, and inexorably the 2017 order, be set aside alternatively and
only in the event
that the court rejects their contentions, to grant
the other prayers described
supra
under Paragraph1. Needless
to state that Erwe 201 would want the application dismissed in its
entirety. To put the matter in its
proper perspective though, it will
be useful to set out the respective assertions of the parties and
what the court makes of those
assertions.
ASSERTIONS OF THE
APPLICANTS
2011 ORDER
[18]
The Applicants contend that the 2011 order should be rescinded and
set aside for various reasons,
amongst them, that it is
unconstitutional and that the order directing the Municipality to
take steps to interdict occupiers from
erecting dwelling structures
on the property is unlawful. The order directs that the Municipality
must do this in terms of section
21 of the National Building
Regulations and Standards Act 103 of 1977 (“The Building
Regulations Act”). The Applicants
state that this order is not
alive to the fact that when the Building Regulations became law, some
building structures had already
been erected and people had taken
occupation of the property.
[19]
Since the property was not under the control of the Municipality and
the Building Regulations
had not come into law and there being no
retrospectivity provision or argument that such should be read into
the Building Regulations,
so continues the argument, the Municipality
cannot invoke Section 21 of the Building Regulations to interdict the
erection of structures.
Besides, the 2011 order fails to single out
the structures to which the Building Regulations apply.
[20]
Without a direction or provision in the 2011 order, it is impossible
to know which structures
to bring down. In any event, the structures
which are now on the land in issue constitute improvements of the
land. For this reason,
their demolition is prohibited by Section
11(7)(c) of the Restitution Act for as long as the Commissioner has
not given his written
authority. Additionally, the Municipality
cannot interdict because it does not know who intends to erect
illegal structures on
the property without prior approval thereby
causing irreparable harm.
[21]
A further assertion by the Applicants is that the people against whom
eviction is being sought
reside on land which belongs to Forever
Resorts, which has given them consent to do so as envisaged in
Section 1 of the Extension
of Security Act, 62 of 1997 (“ESTA”).
Since the property is not an established, approved or proclaimed
township ESTA
applies to it. Section 3 of ESTA provides that consent
to an occupier to reside or use land cannot be terminated if not in
accordance
with the provisions of section 8. It being common cause
that the consent that Forever Resorts has given is still extant and
has
not been withdrawn, the occupiers cannot be evicted.
[22]
The 2011 order, maintain the Applicants, is contrary to the
requirements of a court order, impossible
to implement as it seeks to
take away rights of occupiers that have been conferred upon them in
terms of Sections 25 and 26 of
the Constitution of the Republic of
South Africa. Worst of all, it does so in circumstances where it has
deprived them opportunity
to respond to the proceedings that led to
the orders that impact on their lives so profoundly.
[23]
Lastly, the Applicants are adamant that to the extent that the 2011
order fails to specify the
group to which it applies or leaves the
Municipality a discretion to decide which group to target with the
eviction or interdict
not to erect structures on the property, it is
invalid and unenforceable because some of those occupiers are on the
property following
adherence to legitimate procedures. Accordingly,
for as long as it is not apparent to which group the 2011 order
applies, it is
incapable of execution.
ASSERTIONS OF ERWE
201
[24]
The setting aside of court orders can be brought in three ways. They
can be brought in terms
of Uniform Rule of Court 31 or 42 or common
law. The Applicants do not specify whether the setting aside that
they seek is in terms
of the Uniform Rules of Court, 31 or 42, or the
common law. While that is so, it is manifest from the facts though
that it can
only have been launched with reliance on common law on
the basis of just
causa.
Erwe 201 asserts that one of the grounds
relied upon must have existed at the time when the order was granted.
Erwe 201 concludes
that as a result of that principle all the events
that occurred subsequent to the 2011 order are irrelevant for its
setting aside.
[25]
Erwe 201 believes that its assertion is fortified by the statement in
Nomsa
Dlamini v B Moloisane High Court of South Africa Gauteng Local
Division
[1]
where the following appears:
“
In
terms of the principal laid down in Swadi, rescission cannot be
granted if the ground of rescission relied upon only came into
existence subsequent to the judgment. The question is whether court
was entitled to grant the judgment on the basis of the circumstances
that existed at that time, albeit that the court or the parties did
not then know of their existence. If the court was so entitled,
then
the underlying principle of finality of judgments must be upheld, and
rescission is not permissible.”
[26]
Secondly, Erwe 201 argues that it is also a requirement in
common law that the application
must be brought within a reasonable
time. Whether or not an application has been brought within a
reasonable time depends entirely
on the assessment of facts of each
case.
See
L Bezuidenhout v S Bezuidenhout TPD
[2]
and
Meadow
Glen Home Owners Associations v City of Tshwane Metropolitan
Municipality.
[3]
[27]
There is no evidence at all that the Municipality took any steps to
comply with the 2011 order
at all. It has since the granting of the
2011 order on 5 July 2011 been ‘dead to the world’ until
woken up by the contempt
of court application against it whose
hearing was set down for 21 August 2018. The Applicants, continues
Erwe 201, have made no
meaningful attempt to explain away the 7-year
inordinate delay in launching this application. This is
notwithstanding that the
2011 order was served on the Municipality as
early as 23 August 2011. The Municipality therefore knew of the terms
of the order
and chose not to do anything about it.
[28]
A further requirement is that the application must be
bona fide.
Erwe 201 contends that the setting aside of the 2011 order will
relieve the Municipality of its judicial obligations imposed by the
2011 order. Moreover, it will eliminate the real prospect of
imprisonment of the Municipality manager and that the Municipality
admits that the relief it seeks against Forever Resorts, the MEC, the
Minister of Human Settlement (“the Minister”)
and the
commissioner is only in the alternative and only if it fails to set
aside the two orders, is adequate proof of its mala
fides. Lastly,
Erwe 201 asserts that similarly, in respect of the demolition of the
buildings, the Municipality will not observe
its obligations unless
directed to do so by a court order.
ISSUES
[29]
The court is called upon to determine whether or not:
29.1
The 2011 and 2017 orders are unconstitutional;
29.2
The Applicants’ order directing the Municipality to take steps
to interdict occupiers from erecting
dwelling structures on the
property is unlawful in terms of section 21 of the National Building
Regulations and Standards Act 103
of 1977 (“the Building
Regulations Act”);
29.3
The Municipality cannot invoke Section 21 of the Building Regulations
to interdict the erection of structures;
29.4
The failure of the 2011 order to single out the structures to which
the Building Regulations apply has any
material effect on these
proceedings;
29.5
Section 11(7)(c) of the Restitution Act finds application in this
matter;
29.6
The provisions of ESTA finds application in this matter;
29.7
The 2011 order is impossible to execute;
29.8
The failure of the 2011 order to specify the group to which it
applies makes it impossible to implement.
LEGAL
FRAMEWORK AND EVALUATION
ORDER DIRECTING THE
MUNICIPALITY TO COMMENCE WITH STEPS TO INTERDICT THE OCCUPIERS OF THE
PROPERTY FROM BUILDING THEREON
[30]
Section 152(1) of the Constitution of the Republic of South Africa
describes the objects of local
governments and it provides:
“
(a)
to provide democratic and accountable government for local
communities;
(b)
to ensure the provision of services to communities in a sustainable
manner;
(c)
to promote social and economic development;
(d)
to promote a safe and healthy environment; and
(e)
to encourage the involvement of communities and community
organisations in the matters of
local government.”
[31]
The order above is informed by the fact that in terms of the
Constitution, the Municipality takes
overall responsibility to ensure
provision of services to communities in a sustainable manner and to
promote a safe and healthy
environment. As such, all building
activities on land under its control and occupation thereof must
occur with due observance of
all applicable laws and regulations.
Accordingly, if illegal building activities happen on land under its
control, it is expected
to intervene and if it does not, it can be
compelled to do so. This is what transpired here and the order is
directed against the
Municipality alone, not the occupiers.
[32]
The argument on behalf of the Municipality that the order impacts
directly on the rights of the
occupiers must be rejected. This ought
to be so because their rights are not affected at this stage such
that they have a direct
and substantial interest as envisaged by case
authority. In this regard it is instructive to refer to the case of
City
of Johannesburg v The South African Local Authorities Pension fund
[4]
where it was said:
“
As
to the relevant principles of law, it has by now become
well-established that, in the exercise of its inherent power, a court
will refrain from deciding a dispute unless and until all persons
have a direct and substantial interest in both the subject matter
and
the outcome of the litigation have been joined as parties (see eg
Amalgamated Engineering Union vs Minister of Labour 1949(3)
SA 637
(A) at 657 and 659; Gordon v Department of Health, KwaZulu Natal
[2008] ZASCA 99
;
2008
(6) SA 522
(SCA) para 9). A “direct and substantial interest”
is more than a financial interest in the outcome of the litigation.
A
test often employed to determine whether a particular interest of a
third party is the one or the other , is to examine whether
a
situation could arise in which, because the third party had not been
joined, any order the court might make would not be res
judicata
against that party, entitling him or her to approach the court again
concerning the same subject matter and possibly obtain
an order
irreconcilable with the order made in the first place (see eg
amalgamated Engineering Union at 661; 8 Transvaal Agricultural
Union
v Minister of Agriculture and Land Affairs & others
2005 (4) SA
212
(SCA) paras 64-66).”
[33]
To agree with the Municipality would indeed be to put the horse
before the cart in the sense
that the direct and substantial interest
of the occupiers did not arise at the time as no remedy was sought
against them. However,
it will be appropriate to join them to
proceedings foreshadowed in the 2011 order. It will be at that
juncture that they will have
direct and substantial interest in the
matter. As such, it would have been premature to have sought their
joinder to the case that
led to the 2011 order because their unlawful
occupation of the property, if there ever was, was not an issue
before court and it
was not decided.
[34]
The 2011 order concerns buildings that have been erected contrary to
the provisions of the National
Building Regulations and Standards
Act, 103 of 1977. While I take the point that the buildings that are
said to have been illegally
erected have not been identified, sight
must not be lost of the fact that the general duty to find and
isolate those buildings
lies with the Municipality in the first place
and not Erwe 201. Those structures that are legally constructed are
not affected
by the 2011 order. Besides, the buildings are still to
be identified prior to their demolition. So, it is premature to state
that
they have not been pointed out in the order.
[35]
The order requires the Municipality to initiate proceedings founded
on Section 21 of the National
Building Regulations and Standards Act,
103 of 1977 by applying to the Magistrates court having jurisdiction
for an order prohibiting
the occupiers on the property from firstly,
commencing or proceeding with the erection of any building or
structures and secondly,
authorising the Municipality to demolish all
the illegal buildings and structures already erected on the property.
[36]
The key to all this is therefore that the Municipality must apply to
court and be authorised
before it can execute. It is fallacious to
regard it as a means entitling the Municipality to stop the
activities. In any event,
it is anticipated that prior to obtaining
the order argued in the 2011 order, the Municipality will notify all
the affected parties
by service of all the relevant papers.
Understood in this sense, all parties are protected and there cannot
be a risk of any illegal
conduct arising. Whether or not the people
against whom the Municipality is expected to launch the application
will successfully
resist is irrelevant. The argument of the
Municipality cannot find favour and it is rejected.
ORDER DIRECTING THE
MUNICIPALITY TO APPLY FOR EVICTION
[37]
The Municipality has also been directed to apply for the eviction of
the occupiers of the property
in terms of Section 6 of the Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of
1998. The Municipality
has strongly asserted that since it is not the
owner of the property, it lacks
locus standi
to apply for
eviction in terms of PIE. This argument would hold if the order
directs the Municipality to evict the occupiers. However,
the order
is that the Municipality must apply to evict the occupiers.
Accordingly, the argument of the Municipality lacks merit.
[38]
The rights of the occupiers are therefore not affected by the 2011
order at this point but it
is expected that they will when the
Municipality commences those proceedings eventually. Again, it could
be that the occupiers
will have a legitimate answer to the claim of
the Municipality but that is not the concern of this Court for now.
To characterize
the order as one directing the Municipality to evict,
as the Municipality does, is presumptuous and misguided.
FAILURE TO IDENTIFY
THE OCCUPIERS
[39]
It was argued on behalf of the Municipality that the 2011 order fails
to identify the occupiers
of the illegal buildings. It was held in
City
of Cape Town v Yaya
[5]
that
the test is whether or not the group of the unidentified people is
one that is ascertainable. Accordingly, the issue here is
ascertainability of the group of the occupiers. The occupiers
comprise that group of people who are occupying the illegally erected
structures and does not include those who are in occupation of those
legally constructed structures. See also,
Rhodes
University V Student Representative Council of Rhodes University.
[6]
[40]
The Municipality can therefore cite the occupiers as ‘occupiers
of illegally erected buildings
and/or structures’ on the
property. This is a group that is identifiable as demonstrated above.
Thus, it does not follow
that where a party has not named people
individually automatically its or his claim should fail. Whether a
group is ascertainable
as distinct and committing particular acts or
not depends on the circumstances of each case. See, the Yaya case
supra
. The argument that a decision affecting the occupiers
has been made without their participation must be rejected. I
reiterate that
the occupiers will have opportunity to plead their
case before the court that will try the matter between the
Municipality and
them. In other words, this is raised prematurely.
[41]
For similar reasons put forward above, the argument concerning ESTA
cannot succeed. That said,
it might well be triumphant when raised at
the relevant moment. For now, it is totally inappropriate.
THE
2017 ORDER
[42]
T
he 2017 order found the Municipal manager, as both a
successor in title and a functionary responsible for the execution of
acts
of the Municipality, to be in contempt of the court order of the
2011 order and directed that he be committed to custody. The
Municipal
manager took office as a manager on 1 October 2016.
There are a few pointers that suggest that the Municipal manager knew
of the order against him granted by Thobane AJ in 2017. I proceed to
explore them below.
[43]
By way of background I need to introduce what will follow by stating
that the Applicant unsuccessfully
attempted to rescind the 2011
order. The application went before Bam AJ and she dismissed it. This
matter also touches on the question
of
res
judicata.
Since
I do not intend to dwell on it later in this judgment, I might as
well state what my view is of the Applicants’ argument.
It
should suffice to state that insofar as I am concerned, the defence
of res judicata raised by Erwe 201 is solid and valid. This
is a
matter that was previously brought before court involving the same
cause of action, the same parties and seeks the same relief
[7]
.
The Applicants cannot pretend that nothing has happened and that this
court must ignore that a final decision was made on it.
[44]
To go back then to the subject that I introduced in Paragraph 42
above. Firstly, on 31 May 2017,
the Municipal manager is indicated as
the deponent to a founding affidavit that commenced a rescission
application launched by
the Municipality against Erwe 201. The
Municipal manager would have dealt with the 2011 and 2017 in his
founding affidavit. Secondly,
the rescission application was heard on
22 February 2018 and Bam AJ states at Paragraph 13 of her judgment
that during the proceedings
she made a few remarks aimed at the
Municipal manager who was present in court. Thirdly, at Paragraph
16.32 of the answering affidavit
in the rescission application, the
deponent claims that the Applicants and their legal representatives
were present when the matter
was argued before Bam AJ. This
allegation was left unchallenged consequently it stands as common
cause.
[45]
On 22 February 2018, both the 2011 and 2017 orders became central to
the parties’ arguments.
It is inconceivable that the Municipal
manager would not have heard as the assertions of the parties
unfolded before Bam AJ that
the rescission application concerned the
setting aside of orders that involved him. Considering the above,
there is little doubt
that the Municipal manager was mindful of the
orders yet he only launched the rescission application in September
2018 leaving
an unconscionable delay of approximately seven months
for which he chooses not to account.
[46]
The Applicants argue that the order seeks to commit the Municipal
manager to custody without
having first made him part of the
proceedings. This argument is misguided. It is not the Second
Applicant in his personal capacity
who is to be arrested and kept in
custody but it is the current Municipal manager and successor in
title of the previous manager.
The duty to ascertain observance of
court orders by the Municipality rests on his shoulders. He has
failed to do so hence he was
found to be in contempt and later his
committal sought.
[47]
The Applicants would have this court believe that every time a
municipal manager vacates his
or her position for whatever reason,
the new incoming municipal manager should be served with court papers
afresh. Needless to
state that following that logic, this process may
have to be repeated each time there is a recurrence. This could not
have been
the intention of the legislature hence it imposes the
responsibility of ascertaining compliance of municipalities with
court orders
on the person occupying the office of municipal manager
and not a particular individual. The office of the Municipal manager
having
been duly notified of the orders and there been no compliance,
the successor in title takes the responsibility. There is nothing
unconstitutional about this legislation and the order as such.
WHETHER
OR NOT TO SET ASIDE THE ORDERS
[48]
It is manifest from the discussion of the 2017 order
supra
that
there is no merit to the argument that the 2017 order should be set
aside because of its unconstitutionality. Similarly, the
2011 order
deserves no different treatment because it has been found to be
constitutionally sound. Fundamentally, the argument
of the Applicants
is that they delayed in bringing this application because their legal
representatives were incompetent. So much
for ‘every bad
carpenter having his tools to blame’. If that were the
position, it is staggering that the Applicants
endured the ineptitude
of their erstwhile attorneys for approximately six years and yet
never thought of terminating their mandate.
[49]
This argument does not hold water because both Applicants became
aware of the 2011 order as early
as the 23
rd
of August
2011 and in the case of the 2017 order, the indication is that before
the rescission application was argued and during
the proceedings
presided by Thobane AJ whose judgment he signed on the 4
th
of April 2017. Besides, the Applicants, assuming that their argument
about their attorneys’ incompetence is correct, were
sleeping
for all these years until woken up by the contempt application.
[50]
Apart from the above, it is notable that the 2011 order was the
result of an agreement between
the Municipality and Erwe 201.
Paragraph 16.16 of the answering affidavit of Erwe 201 is
distinctive. It provides that the legal
representatives of the
Municipality indicated to the legal representatives of Erwe 201 that
they would not oppose the relief sought
in the 2011 application,
which resulted in the 2011 order. I am at a complete loss why in
reply the Municipality would, without
elaboration, state that the
allegation is irrelevant to the relief sought by it when in fact it
had consented to it being granted.
In those circumstances, it cannot
be reasonable to set aside the orders. The application to set aside
the orders therefore is refused.
LOCUS STANDI
[51]
Whether or not the Municipal manager has
locus standi
to apply
for the setting aside of the 2011 and 2017 orders granted against the
Municipality is of little significance. I say this
advisedly. If the
Municipality is successful in the application for rescission of the
orders, the Municipal manager, as an official
responsible for the
Municipality’s compliance with court orders, will automatically
be off the hook. That is because there
will be no court order with
which the Municipality will be expected to comply. Understood in this
sense, the issue pertaining to
locus standi
is academic. That
said, the Municipal manager has
locus standi
to apply for the
rescission that seeks to have him committed to a correctional centre
for violation of the orders. The finalisation
of the setting aside
application has paved a way for the consideration of the alternative
orders proposed by the Applicants.
PROPOSED
ALTERNATIVE ORDERS
[52]
The principal issue here is whether or not the Municipality is
correct to characterise the controversy
between
the parties as one concerning eviction of occupiers of land which
belongs to Forever Resorts. Quite evidently, if the court
agrees that
the question of eviction constitutes the nub of the dispute between
the parties then it is inescapable to traverse
the issues pertaining
to the alternative orders. The court has already refused to regard
eviction as central to the controversy
between the parties and that
presupposes that the Municipality ought to comply with the orders.
For what it is worth, I proceed
to outline why the orders in the
alternative as sought by the Municipality will be superfluous.
THE
COMMISSIONER TO CONSIDER WHETHER OR NOT TO GRANT AUTHORITY FOR THE
EVICTION OF THE OCCUPIERS OF THE PROPERTY OR DEMOLITION OF
UNAUTHORISED STRUCTURES
[53]
Compliance with the 2011 order by the Municipality necessarily
connotes the order that the Municipality
wants. In other words,
acting in line with the court orders implies that the Municipality
will explore various means of legally
evicting whoever could be on
the property and/or preventing the unauthorised erection of
structures and/or demolishing such buildings
that have been
established contrary to the governing legislation. To act in
accordance with the orders might well include the Municipality
approaching the Commissioner to consider whether or not to grant
authority for the eviction of the occupiers or demolition of the
illegal structures. In this sense, the first alternative order is
gratuitous.
FOREVER
RESORTS TO APPLY TO COURT FOR THE EVICTION OF THE OCCUPIERS OF THE
PROPERTY ONLY IN THE EVENT THAT THE CONSENT OF THE OCCUPIERS
TO
OCCUPY THE PROPERTY HAS BEEN LAWFULLY WITHDRAWN OR SET ASIDE BY A
COURT AND THE COMMISSIONER HAS GRANTED WRITTEN APPROVAL FOR
SUCH
[54]
The above is in fact an illustration of the measures that the
Municipality ought to take to ascertain
that it complies with the
2011 order. It ought to be noted that the Municipality, as a local
government structure, is in control
of the property, land owned by
Forever Resorts. As such, it and the latter are at liberty to embark
on a legally recognised process
of evicting those in unlawful
occupation of the property. If such measures entail making sure that
the consent granted to the occupiers
in terms of ESTA must first be
obtained and that the Commissioner must have given written approval,
then it is the order that contemplates
the process unfolding but the
Municipality remains the driver of such process.
THE
MEC AND THE MINISTER TO PROVIDE FINANCIAL ASSISTANCE FOR THE
ALTERNATIVE ACCOMMODATION TO THE OCCUPIERS OF THE PROPERTY IF AN
ORDER FOR THEIR EVICTION FROM THE PROPERTY IS GRANTED
[55]
The duty to provide alternative accommodation in circumstances where
the illegal occupiers of
land are granted primarily rests with the
local authority, the Municipality in this instance. Thus, whether the
Municipality seeks
financial assistance from the MEC and/or the
Minister is completely not the concern of Erwe 201. From the
aforesaid it is plain
that the alternative orders were brought about
by the fallacious characterization of the theme of the orders as
being eviction.
All the alternative orders are therefore refused.
COSTS
[54]
This court was advised that the costs of 21 August 2018 in the main
application were reserved
and that I am required to determine which
of them should be liable for payment thereof. Erwe 201 contended that
such costs ought
to be paid by the Municipality because its delay in
launching the application was unconscionable. Moreover, it was for
the second
time that the Municipality sought postponement, the first
having been in February 2018 and having been founded on the same
basis
on which it now seeks to postpone the application once again.
[55]
Conversely, the Municipality is adamant that the
main application should not have been enrolled for hearing on 21
August 2018 as
it was not ready. Firstly, argues the Municipality,
the court order of December 2017 envisages case management of the
matter. In
total disregard of the order, Erwe 201 neither ensured
that the matter became case managed nor engage with the Municipality
and
the other respondents in the main application. Such agreement
would have been on the future conduct of the matter, amongst which
would have been the filing of answering, replying affidavits and
heads of argument before enrollment.
[56]
Secondly, on 21 August 2018, the index provided to the court and
parties was not consistent with
the paginated papers. This was caused
by the failure of Erwe 201 to update the index to bring about harmony
between it and the
paginated papers. Obviously, says the
Municipality, Erwe 201’s failure in that respect necessarily
meant that the Municipality
could not index and paginate its papers
and ostensibly, the court too.
[57]
Furthermore, the Municipality draws attention to Paragraph 8.1.5 of
the founding affidavit where
Erwe 201 undertakes to place papers
under case number 2016/582 before the Court and that the contents
thereof would be incorporated
into the 2018 application as if they
form part thereof. To the extent that Erwe 201 intended to rely on
the papers under Case number
2016/582, the Applicants assert that
they were entitled to be given opportunity to respond to the
reconstituted papers. They could
not do so as a result of Erwe 201’
s failure.
[58]
It is trite that the duty to ascertain that a matter is ripe for
hearing primarily rests on an
applicant. While it may be true that
the Applicants brought their application to postpone exceedingly
late, the issues that they
have raised are valid and in any event,
the matter would not have proceeded with all the attendant problems
described above. The
question is, would the matter have gone ahead
regardless of the challenges? The answer is indubitably in the
negative and Erwe
201 must therefore bear the costs of the
postponement.
[59]
Insofar as the costs of this application are concerned, it is common
cause that there is no foundation
for departure from the principle
that costs follow results. The Applicants will as such, be liable for
the costs of Erwe 201 including
those of two Counsel, if applicable.
CONCLUSION
[60]
Both the 2011 and 2017 orders are constitutionally sound. As such,
the application to set them
aside on that basis and other grounds,
which the court has explored
supra
are refused. The
alternative orders cannot be granted because once the Municipality
observes the orders, the alternative orders
will be rendered
unnecessary. Insofar as costs of the postponement are concerned, Erwe
201 has failed to ascertain that the matter
was ready for hearing
consequently it must bear the costs. With regard to the costs hereof,
there is no departure to the generally
accepted principle that costs
follow result
ORDER
[61]
In the result, I make the following order:
1.
The application is dismissed with costs
including those of two Counsel, where so employed;
2.
Regarding the costs of the postponement,
Erwe 201 is directed to pay the costs including those of two Counsel,
where so employed.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 11 May 2022 at 10:00.
APPEARANCES:
Counsel
for the Applicants:
Adv K Tsatsawane SC
Adv K Magano
Instructed
by:
Mohlala Attorneys
Counsel
for the First Respondent:
Adv JJ Botha SC
Instructed
by:
Leon JJ Van Rensburg Attorneys
Counsel
for the Second & Third Respondents: Adv J
Hamman
Instructed
by:
Morne Mostert Attorneys
Date
of Judgment:
11 May 2022
[1]
Case
no: 10/30611 at para [40]
[2]
Case
no: 28997/04at [13])
[3]
(767/2013
[201] AZASCA 209 (1 December 2014)
[4]
(
20045/2014)
[2015] ZASCA 4
(9 March 2015)
[5]
[2004]
2 All SA 281
(C)]
2 All SA 281
(C)
[6]
[2017]
1 All SA 617 (ECG)
[7]
Ascends
Animal Health (Pty) Limited v Merck Sharpe Dome Corporation and
Others
2020
(1) SA 327 (CC)