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[2022] ZAECELLC 9
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Trustees for the time being of the East London Hebrew Congregation v Galperin and Others (EL748/2021) [2022] ZAECELLC 9; [2022] 4 All SA 224 (ECLD) (13 May 2022)
OF
INTEREST
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case
No. EL748/2021
In
the matter between:
THE
TRUSTEES FOR THE TIME
BEING
OF THE EAST LONDON
HEBREW
CONGREGATION Applicant
and
CHANOCH
GALPERIN First
Respondent
SARA
RAZELLE GALPERIN Second
Respondent
THE
BUFFALO CITY
METROPOLITAN
MUNICIPALITY Third
Respondent
JUDGMENT
HARTLE J
Introduction:
[1]
The
applicant, The East London Hebrew Congregation (“the
Congregation”),
[1]
issued
out an application for the eviction of the first and second
respondents (“the respondents”)
[2]
from premises owned by it situated at 7 Osborne Road, Selborne, East
London ("the property").
[3]
[2]
It alleges that the
respondents came to occupy the property, initially lawfully, as an
incidence of the
first
respondents’
employment with it. It alleges that the second respondent, who is
married to the first respondent, acquired her
right to occupy the
home “through” her spouse.
[3]
It
is apparent from the applicable employment agreement that the first
respondent was appointed to serve the Congregation as its
Rabbi and
spiritual leader, and the second respondent as Rebbetzin, teacher and
Mashgiach within the Congregation. The employment
agreement was
concluded with them in June 2016 and would, in the ordinary course,
have terminated on 31 May 2024.
[4]
[4]
The relevant clause in the
agreement that provides for the respondents’ right to
occupation of the rabbinical home for the
natural duration of their
employment, is made provision for as follows:
“
5.
Accommodation
5.1 In
addition to the above remuneration and allowances, the Official and
the Official’s Wife shall be
provided with accommodation, free
of charge, at the Congregation’s partly furnished house in
Osborne Road, Selborne, East
London or such alternative accommodation
of a similar nature, as specified by the Congregation.”
[5]
The agreement provides in
clause 13 for its termination, other than in circumstances where it
expires by effluxion of time or on
notice, as follows:
“
13.
Termination
The parties record that
termination of the agreement due to misconduct, incapacity and
operational requirements shall be effected
through the procedures
prescribed in the Labour Relations Act.
The
parties further specifically record that the failure to fulfil the
duties specified in Clause 9 would amount to misconduct.”
[5]
[6]
Clause 15 is also of
significance since the parties rely on it for different reasons. The
applicant alleges that a dispute that
arose between itself and the
first respondent following his dismissal - if it was his desire to
challenge it, (which he did not),
fell to be settled in terms of the
standard procedures outlined and prescribed in the Labour Relations
Act as is provided for in
clause 13. In this regard the applicant
claims that these procedures were properly adhered to which rendered
the matter final,
thus entitling them to bring the present
application as the right to occupy would have fallen away together
with the termination
of the first respondent’s employment. The
respondents, on the other hand, assert that the dispute fell - or
since it is a
live one still, falls to be resolved exclusively before
the Jewish Ecclesiastical Court (“the Beth-Din”). The
clause
reads as follows:
“
15.
Beth
Din
The Official, the
Official’s Wife and the Congregation agree to accept the
authority of the Beth Din to make final and binding
decisions in all
matters of the Jewish Law
other than in the instance of disputes
to be settled in terms of Clause 13
.”
(Emphasis
added)
[7]
The power of the Beth-Din to settle disputes
(ostensibly other than those referred to in clause 13 of the parties’
employment
agreement) is outlined in paragraph 10 of the Articles of
Association of the Union of Orthodox Synagogues of South Africa (“the
Council”), of which the Congregation is both a member and
constituent, as follows:
“
10.
ARBITRATION
Disputes between any
Constituents shall be submitted for arbitration to the Management
Committee, with the right of appeal to the
Johannesburg Beth Din.
Disputes between any Constituents and officials in their employ
shall be submitted to the Johannesburg Beth Din, whose decision/s
shall be final and binding.
”
(Emphasis added.)
[8]
The respondents, until the first respondent’s
dismissal, would ostensibly have been officials in the employ of a
constituent
of the Council.
The applicant’s
cause of action:
[9]
The applicant as owner of
the property and duly authorized by resolution asserts that the
respondents’ occupation of the property,
which is subsidiary to
the employment contract, became unlawful when it terminated the first
respondent's services under the contract,
including the right to
occupy the rabbinical home, due to claimed misconduct on his part,
ostensibly after resort by it to prior
internal disciplinary
proceedings. What that procedure was is given some context in the
termination letter that the applicant put
up as proof of the
allegation that it terminated the first respondent’s employment
with the Congregation and subsidiary tenancy
in a notice addressed to
him dated 3 February 2020 (“the termination letter”). The
letter reads as follows:
“
RE:
DISCIPLINARY INQUIRY
We
refer to the disciplinary inquiry held on Wednesday, 29 January 2020.
We
attach hereto, for your attention, a copy of the chairperson’s
findings and recommendation.
[6]
The
committee
[7]
has considered the
recommendation and has decided to implement the recommended sanction.
In
light of the above, you are hereby advised that your employment as
Rabbi of the East London Hebrew Congregation is hereby terminated
with immediate effect.
Your
right to reside in accommodation provided by the Congregation
terminates with your employment. Despite the foregoing, a decision
has been taken to allow you to remain in your current accommodation
subject to your expressly agreeing:
1.
vacate the
premises by no later than 31 March 2020; and
2.
agree to
representatives of the Congregation and/or those appointed by the
Congregation having reasonable access to the premises
for purposes of
measuring with a view to drafting plans for anticipated alterations.
It
is emphasized that the access to the premises will be on reasonable
notice and on the basis of terms arranged with you and/or
Rebbetzin
Galperin.
Should
we not receive your express agreement and conditions set out in
paragraphs 1 and 2 above, the offer in respect of the accommodation
will be withdrawn and steps taken to vacate you from the premises
without delay.
Should
you believe that your dismissal is unfair, you are reminded of your
right to refer a dispute to the CCMA, within 30 (thirty)
days from
today.”
[10]
This was followed by a
further letter dated 9 February 2020 addressed by the applicant’s
attorneys of record to
both
respondents
(ostensibly
emailed on the 11
th
)
declaring that they are in “illegal occupation” of the
property - presumably the first respondent must have spurned
the
Congregation’s offer to warrant the stance being adopted days
after the termination letter had been sent that he and
his wife were
already regarded as occupying the property without its consent,
directing them to pay all charges due to the municipality
other than
the rates - which until that point had ostensibly been covered by the
Congregation as a term of the employment agreement,
and foreshadowing
that eviction proceedings would ensue “shortly”.
[11]
The applicant claims that
“written requests” forwarded by its attorneys to the
respondents to vacate the premises (the
letter of 9 February 2020
aforesaid held up as the only example) did not have the desired
effect and was taken as the respondents’
refusal to meet the
Congregation’s request, hence the need for the present
application which could not launched at the end
of March 2020 as had
been forewarned. This is because by then the COVID-19 pandemic had
hit home, a state of national emergency
was declared by the
government pursuant to the provisions of the Disaster Management Act,
No. 57 of 2002 (“the DMA”),
and the country placed under
a hard lockdown. Because the eviction of persons from residential
premises was not permitted at the
time under constraint of the
regulations promulgated under the DMA, the respondents were by
default given some respite over the
period of the hard lockdown, but
the request for them to vacate the premises took on formal
proportions in mid-June 2020 when the
present application was issued
to vindicate the claimed unlawful occupation of the applicant’s
property.
[12]
It
is common cause that the respondents have remained in occupation
since 3 February 2020 and oppose the present application.
[8]
The municipality has not entered the fray.
[13]
Apart
from asserting in the founding affidavit that it had met the
jurisdictional grounds postulated by the relevant provisions
of the
Prevention of Illegal Eviction from Unlawful Occupation of Land Act,
No. 19 of 1998 (“the PIE Act”) as well
as the procedural
requirement of service of effective notice of the proceedings
stipulated by section 4 (2), the applicant asserted
that the
respondents have raised “no valid defence” to the
applicant’s claim for their eviction from the property
and that
it is “just and equitable” within the meaning contended
for in the PIE Act in the particular circumstances
that they be
ordered to vacate the property within a suggested time frame.
[9]
[14]
The applicant asserts in this respect that it is
being inconvenienced by the respondents’ holding over their
occupation of
the property since this effectively precludes them from
appointing a Rabbi for the Congregation who is expected to be
accommodated
in the designated rabbinical home. Apart from the
compromise of their owner’s right to possession of the
property, they also
allude to the fact that the Congregation has been
hampered in its ability to administer to the spiritual needs of its
members,
I would venture to suggest as a result of an ongoing spat
between it and the first respondent, the details of which I will
shortly
relate.
The
respondents’ defence:
Preliminary
issues:
[15]
The respondents relied on
several points
in
limine
in
resisting the application for their eviction.
[16]
The first point raises a
procedural issue that the applicant did not comply with the
peremptory provisions of section 4 (2) of the
PIE Act regarding
service of effective notice of the proceedings. They claim that this
renders the application fatally defective.
I deal with this aspect
further below.
[17]
The second point is that the
Congregation, together with the respondents as members and
constituent respectively of the Council,
are obliged by its Articles
of Association, to accept and subject themselves to the authority of
the Chief Rabbi and the Beth-Din
with regard to all matters falling
under the Halachic authority of the Chief Rabbi and in the manner
directed by the Council’s
Articles of Association. This, with
reference to clause 10 of the Articles of Association cited above,
entails the submission of
all disputes between the applicant and the
first respondent (as an official in its employ) to the Beth-Din.
[18]
The
first respondent points out that the Congregation’s own
Constitution, which clearly defines the powers of the trustees
of the
Congregation, does not afford it the power or authority to bring the
present proceedings. This is “understandable”,
so the
applicant asserts, as the Council’s Articles of Association
make it plain that exclusive jurisdiction lies with the
Beth-Din in
regard to “disputes of this nature”.
[10]
[19]
The third point is that the
application is fatally defective for want of any mention at all of
the relevant provisions of the Disaster
Management Regulations
promulgated under the
Disaster Management Act applicable
at the time
of the launch of the application and their peculiar application to
the circumstances of the matter.
[20]
The fourth point is that
there is an arbitral process that was set in motion pursuant to which
the first respondent is already challenging
his dismissal by the
applicant before the Beth-Din (which has now spilled over into the
secular court along its trajectory as I
will shortly explain) and
which dispute is still pending as it were, thus precluding a finding
that his and the second respondent’s
occupation of the
premises, subsidiary to the employment agreement, is unlawful.
[21]
Also
contended under the mantle of the “4
th
point
in
limine”
(possibly
a fifth point) is that the applicant has not satisfied the
requirements set forth in section 4 (7) of the PIE Act which
it ought
to have dealt with since the institution of the present application
occurred more than six months after the respondents’
alleged
“unlawful occupation” of the property.
[11]
The substantive
issue:
[22]
The dispute in respect of
the substantive issue revolves around what Mr. Smuts (who together
with Mr. Miller appeared on behalf
of the first and second
respondents) refers to as the “purported” termination of
the first respondent's services. The
first respondent admits that he
was dismissed but asserts that such dismissal was “wrongful and
unlawful” and that
that dispute, concerning the Congregation’s
misplaced entitlement to have so “dismissed” him, is
still pending
before the High Court and the Beth-Din. He claims in
this respect to have a
pending
referral “for
inter alia
(his) reinstatement,
arrear salaries, and benefits”. On this basis, so it was
contended, they would therefore not be unlawful
occupiers within the
meaning of the PIE Act.
[23]
He admits that he eschewed
the option of referring his “labour dispute” to the CCMA
or the Labour Court based on advice
given to him that the Beth-Din
has exclusive jurisdiction to determine same in terms of the
Council’s Articles of Association.
Hence, when he received the
applicant’s correspondence advising him that his employment had
been terminated together with
the right to reside in the
accommodation provided by the Congregation, he believed that he and
the second respondent were justified
in their refusal to vacate the
property “as a result of (our) pending referral to the Beth-Din
and the High Court.”
[24]
If
he is successful in the Beth-Din and “reinstated,” so he
asserts, he will remain the appointed Rabbi for the Congregation.
He
is furthermore confident that his prospects of success are extremely
good given the fact that the Congregation, and the chairperson
appointed by the Congregation, had no authority to dismiss him, this
in his view being within the exclusive jurisdiction of the
Beth-Din
in terms of the Articles of Association on the basis indicated above,
by which the Congregation is bound.
[12]
[25]
He
recognizes that his and the second respondent’s right of
residence is subsidiary to his employee status but avers that
such
status remains undetermined in his view until “the High Court
matters are determined.”
[13]
He
adds in this respect that the determination of “the dispute of
the labour matter” is “clearly (as a matter
of law) a
pre-condition
for
the termination of our right of residence” based on the
authority of Snyers v Mgro Properties (Pty) Ltd
[14]
to which I will shortly allude.
[26]
The respondents contend further and in any event
that it is not just and equitable for this court to evict them for
various other
reasons.
The
first respondent’s “dispute”:
[27]
It is necessary to have
regard to the “dispute” in existence between the parties,
the determination of which the first
respondent says is pending, and
more especially what brought the parties to this point.
[28]
The
termination of the first respondent's services was ostensibly related
to certain misconduct allegedly committed by him, which
the applicant
considered justified his dismissal from its employment with immediate
effect pursuant to receipt of a recommendation
by “the
Committee”
[15]
that such
a sanction should be implemented. What this conduct was is not
disclosed in the applicant's founding affidavit, but in
its replying
affidavit it sets the record straight that the first respondent was
“found guilty” on 11 separate charges,
involving
inter
alia
dishonesty,
which were not limited only to the steps taken by him to benefit from
the will of the late Mr. Israel Bayer”.
[29]
The first respondent
volunteered in his answering affidavit what had happened regarding
the will of the late Mr. Bayer (“the
deceased”), although
this is not the dispute on which their plea of “
lis
pendens”
is
directly founded. He explained that he had developed a personal
relationship with the deceased and assisted him with his affairs.
The
latter, in his last will and testament dated 22 March 2018, had
bequeathed one third of his estate to him, the first respondent.
The
congregation and the East London Chevra Kadisha (also known as the EL
Helping Hand and Burial Society (“the Society”))
alleged
that this last will and testament was a forgery and that the first
respondent had, in his own hand, written a portion of
the deceased’s
will himself, expunging the Society as a beneficiary and substituting
himself in its place in respect of the
one third portion that the
deceased had in his penultimate will bequeathed to it.
[30]
His accusers (both the
applicant and the Society) further alleged that the two persons who
had signed as witnesses to the will had
not been present when the
deceased signed the will, but this according to the first respondent
is an unfounded allegation.
[31]
The culmination of the
Congregation and the Society’s concerns in this respect led to
them requesting the Beth-Din to arbitrate
that dispute (“the
wills dispute”). A copy of their agreement in this respect,
dated 19 September 2019, confirms that
the “parties voluntarily
agree to submit the matters of controversy between them concerning
the will of the late Israel Bayer”
and “
all
related matters”
to
the arbitration of the Johannesburg Beth-Din comprising of two named
Dayanim (Rabbinic Judges).
[32]
It
was a material term of this arbitration agreement, so the first
respondent points out, that the decision of the Beth-Din would
be
final and binding on them and that the “matters contained
therein would remain in the sole jurisdiction of the Beis Din,
not
subject to that of any other Beis Din or court, to modify, appeal or
enforce, without the written consent of the Beis Din.”
[16]
In a copy of the decision of the Beth Din put up by the first
respondent, on the face of it the parties (as claimants) include
both
the Congregation and the Society (represented by Messrs. Aufrichtig
and Robinson,
[17]
and Mrs.
Ettinger respectively). The claim is defined in the following terms:
“
CLAIM
The
claimant avers that the final Will, dated the 22
nd
of
March 2018, was in fact a forgery. The assertion is that the
Respondent wrote the handwritten portion of the Will himself,
expunging
the ELCK
[18]
from
the Will and placing himself as a beneficiary instead. The Claimant
further contends that the signature of the deceased was
a forgery and
that the witnesses who signed as witnesses to the Will, were not
present when the deceased appended his signature
to said Will.
The
Respondent denies having written the hand-written portion of the
third and final Will and denies having forged the signature
on said
Will.”
[33]
The conclusion reached in
the arbitration by the dayanim after hearing evidence, which included
handwriting experts, is recorded
as follows:
“
CONCLUSION
Based
on the above the Beth Din finds:
•
The
Respondent did not write the hand-written portion of the Will.
•
The
Will was signed by the deceased in the presence of the two witnesses
who signed on the Will.
•
In
view of the above, the charge that he forged the signature of the
deceased, and altered the Will of his own accord in his favour,
is
rejected and without any merit.”
[34]
Despite ostensibly having
been being exonerated of the “claim” by the claimants
(including the Congregation who was
ostensibly a party to the wills
dispute), which one expects would have removed the taint of any
misconduct on his part, the first
respondent avers that the applicant
nonetheless proceeded on 29 November 2019 to bring disciplinary
charges against him.
[35]
Neither party has clearly
outlined the nature of the misconduct he was accused of.
[36]
The disciplinary hearing
commenced on 9 December 2019.
[37]
The first respondent
explains that he did not accept the authority of the person appointed
by the Congregation to conduct the disciplinary
hearing against him.
As a result, the hearing was convened and heard in his absence on 29
January 2020, culminating in the result
indicated in the termination
letter aforesaid.
[38]
Despite
the arbitration award of the Beth-Din concerning the underlying claim
of misconduct against him in the wills dispute being
final and
binding on the Congregation, the first respondent relates that the
applicant then brought an application in the High
Court on 7 July
2020 (East London case number 1356/2020 refers) to have the last will
of the deceased declared invalid.
[19]
[39]
The
first respondent followed suit on 27 August 2020 by resort to the
secular courts to have the same award made an order of court
pursuant
to the provisions of the
Arbitration Act, No. 42 of 1965
.
[20]
On 1 October 2020 the Congregation filed its answering affidavit in
that matter.
[40]
On the same date the first
respondent referred his wrongful and unlawful dismissal dispute to
the Beth-Din. How this referral was
framed has not been disclosed to
the court.
[41]
On
2 October 2020 the Congregation (
sic
)
brought action proceedings in the High Court in case number 2067/2020
to declare the will of the deceased invalid.
[21]
The first respondent filed a counter application in that action to
have the arbitration award made an order of the High Court together
with ancillary relief (which appears to entail a declarator that he
is competent to receive the benefits from the will of the deceased
in
terms of
section 4A(2)
(a) of the
Wills Act, No. 7 of 1953
). He also
withdrew his earlier application in case number 1770/2020 for
“procedural reasons”. This was on 17 November
2020.
[42]
On 15 December 2020 the
first respondent brought an application to the Beth-Din requesting
them to make a ruling in regard to the
labour dispute which he had
referred to them concerning his “wrongful and unlawful
dismissal”.
[43]
In this respect, the
Beth-Din had indicated that it could not deal with the labour dispute
referred to it on the basis that the
Congregation was not prepared to
attend a hearing before it to determine his claims in this regard.
[44]
The first respondent sought
to resolve this impasse by bringing an application in the High Court
(Makhanda case number 1340/2021
refers) to compel the Beth-Din to
hear his dismissal dispute. Judgment in that matter was handed down
on 18 January 2022 shortly
before this matter was argued before me
with the High Court dismissing the application.
[45]
I was advised from the bar
by Mr. Smuts that the court’s judgment is presently under
appeal, rendering the provisions of
section 18
(1) of the Superior
Court’s Act, No. 10 of 2013, applicable
vis-á-vis
its impact for the
moment.
[46]
It is quite apparent that all the litigation in
the High Court and the proceedings before the Beth-Din have has been
vociferously
opposed and that, depending on the outcome of the appeal
(or hopefully the applicant earlier submitting itself to the
jurisdiction
of the ecclesiastical court as a means to finally
determine the issues between them), the parties have essentially
reached a stalemate
with their respective positions being stubbornly
entrenched.
The
applicant’s reply:
[47]
The approach that the
applicant adopts in reply is that the first respondent’s right
to have challenged his dismissal and
concomitantly his (and the
second respondent’s) right of occupation of the property was
limited under the circumstances to
an approach to the CCMA and/or the
Labour Court (with reference to the provisions of clause 13 of the
employment agreement), which
he has chosen not to pursue and that his
dismissal is therefore final and incontestable. That, on its own says
the applicant, renders
the respondents’ occupation of the
property unlawful and warrants their eviction.
[48]
Whilst the applicant
acknowledges that the first respondent sought to have the Beth-Din
determine his labour dispute by way of notice
of referral dated 1
October 2020, it makes no bones about the fact that it does not, as
far as it is concerned, consider this to
be an option open to the
first respondent to pursue. It transpires that the reason for this is
that the applicant advised the Beth-Din
that it was, and I assume
from the context,
is
not
,
prepared to subject itself to the ecclesiastical court’s
jurisdiction for purposes of determining the first respondent’s
dismissal dispute.
[49]
The approach taken by the
Beth-Din is that where one party refuses to subject itself to its
jurisdiction, it has the right and obligation
to allow the other
disputant to approach the secular courts which it did by giving
permission to the first respondent to vindicate
his situation in such
a manner.
[50]
Whereas this would have been
the end of the matter, so the applicant relates, the first respondent
persisted in his “misplaced
endeavour”, as it calls it,
to have the labour dispute determined by the Beth-Din by filing an
application for a ruling document
dated 15 December 2020 wherein he
asked the Beth-Din to formally rule on the issue of its jurisdiction
over the labour dispute
belatedly referred to it. The applicant in
this next round once again asserted to the Beth-Din that it was not
agreeable to the
first respondent's request that it submit itself to
its jurisdiction. A study of the correspondence addressed by the
Beth-Din’s
attorney to the parties’ attorneys concerning
this issue reveals its view that it does indeed have jurisdiction
over the
dispute, but that its hands are tied as it were, because of
the stance adopted by the applicant that it will not accept its
jurisdiction
and will not partake in any such hearing before it.
[51]
The
applicant reveals in its replying affidavit, (although, evidently not
in its correspondence with the Beth-Din), that one of
the reasons why
it does not wish to submit itself to the ecclesiastical court’s
jurisdiction to determine the first respondent’s
claim that his
dismissal was wrongful and unlawful is that the Society, and by
extension itself, both have a reasonable apprehension
of bias against
it because it took relevant and material evidence from the
respondents in the wills dispute hearing in the absence
of the
Society and omitted to declare that the second respondent had
disclosed to it that it was she who had written the contentious
portion of the deceased’s will in her own hand. The applicant’s
points to the fact that the first respondent revealed
for the first
time in the action underway in the High Court against him by the
Society that it was the second respondent who had
in fact written out
the deceased’s contested will. This, so the applicant contends,
would automatically have disqualified
the first respondent from
inheriting under the will.
[22]
[52]
It also appears to
have emerged in the action between the Society and the second
respondent, so this court is told, that one of
the witnesses to the
will made an affidavit stating that she did not witness and was not
present when the deceased signed the will
despite her testimony
before the Beth-Din having been to the contrary in support of the
first respondent.
[53]
Also
not revealed by the first respondent in the papers before this court,
according to the applicant, is the fact that the Beth-Din
in the
wills dispute referral by way of correspondence dated 24 June 2020
and after the fact withdrew its original ruling that
the first
respondent holds onto as being in his favour. It is apparent from
this communication alluded to by the applicant that
it was inclined
to move away from its original finding in favour of the first
respondent on the basis that new evidence had come
to light
justifying a retrial of the issues before it.
[23]
[54]
Although on the face of it
the dispute before the Beth-Din that went in favour of the first
respondent’s favor is strictly
between him and Society, it was
self-evidently a precursor to the disciplinary proceedings against
him and underpins the charges
of misconduct against him.
[55]
Howsoever these issues may
be dealt with in time, the vital fact
in
casu
says
the applicant, is that the first respondent was charged with
dishonesty
inter
alia
and
that there has been an irretrievable breakdown of any trust
relationship between him and the Congregation. Thus, even for a
moment assuming that the Beth-Din were to be seized of the dismissal
dispute (which it submits is a most unlikely prospect), the
applicant
does not consider there to be any realistic basis upon which the
first respondent may be reinstated as its Rabbi.
The
legal framework:
[56]
Whereas the applicant predicated its application
on the provisions of the PIE Act, as it must, the respondents deny
that they are
unlawful occupiers within the contemplation of the act
yet raised the preliminary objection that the application is fatal
for want
of compliance with its provisions.
[57]
It is necessary to advert to these
provisions.
[58]
Section 4 of the PIE Act provides in the following
terms for the eviction of unlawful occupiers:
“
4.
Eviction of unlawful occupiers.
—
(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.
(3)
Subject to the provisions of
subsection
(2)
,
the procedure for the serving of notices and filing of papers is as
prescribed by the rules of the court in question.
(4)
Subject to the provisions of
subsection
(2)
,
if a court is satisfied that service cannot conveniently or
expeditiously be effected in the manner provided in the rules of the
court, service must be effected in the manner directed by the court:
Provided that the court must consider the rights of the unlawful
occupier to receive adequate notice and to defend the case.
(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.
(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.
(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine—
(
a
)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(
b
)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in
paragraph
(
a
)
.
(9)
In determining a just and equitable date contemplated in
subsection
(8)
,
the court must have regard to all relevant factors, including the
period the unlawful occupier and his or her family have resided
on
the land in question.
(10)
The court which orders the eviction of any person in terms of this
section may make an order for the demolition and removal
of the
buildings or structures that were occupied by such person on the land
in question.
(11)
A court may, at the request of the sheriff, authorise any person to
assist the sheriff to carry out an order for eviction,
demolition or
removal subject to conditions determined by the court: Provided that
the sheriff must at all times be present during
such eviction,
demolition or removal.
(12)
Any order for the eviction of an unlawful occupier or for the
demolition or removal of buildings or structures in terms of
this
section is subject to the conditions deemed reasonable by the court,
and the court may, on good cause shown, vary any condition
for an
eviction order.”
(Emphasis
added.)
[59]
The
PIE Act was enacted to regulate the eviction of unlawful occupiers
from land in a fair manner, whilst recognizing the right
of
land-owners to apply to a court for an eviction order in appropriate
circumstances.
[24]
Although
this is the basic principle underlying the PIE Act, it is now
accepted law that, due to various procedural requirements
and
measures contained in the Act, it has effectively disposed of certain
common law rights relating to eviction.
[25]
PIE has its roots, inter alia, in section 26 (3) of the Constitution
which provides that “no one may be evicted from their
home or
have their home demolished without an order of court made after
consideration of all the relevant circumstances”.
[60]
Section 1 of the PIE Act defines an “unlawful
occupier” as:
“
a
person who occupies land without the express or tacit consent of the
owner or person in charge, or without any other right in
law to
occupy such land, excluding a person who is an occupier in terms of
the
Extension of Security of Tenure Act, 1997
, and excluding a person
whose formal right to land, but for the provision of this Act, would
be protected by the protected by the
provisions of the Interim
Protection of Informal Land Rights, Act, 1996 (Act 31 of 1996).”
The
applicant’s substantive claim for ejectment
:
[61]
There can be no question that the applicant is the
owner of the property and that it is in the ordinary course vested
with
locus standi
to
vindicate its rights that flow from its ownership of the property,
including the right to recover lost possession by resort to
the
rei-vindicatio
.
[62]
The
applicant further claims to enjoy the formal support of the
Congregation in bringing these proceedings, an assertion that has
not
in essence been challenged.
[26]
[63]
The
onus which the applicant bears for its case founded on the
rei-vindicatio
is to
prove that (1) it is the owner of the property and (2) that the
respondents are in possession thereof.
[27]
These essential allegations are not in contention.
[64]
If the
owner of a property pleads that the person in possession would have
had a right to possession, had that right not been terminated,
the
owner must prove the termination of the aforesaid right.
[28]
[65]
The applicant relies in this respect on the
termination letter as proof that the respondents’ rights to
occupy the property
(subsidiary to their employment agreement) was
terminated when the first respondent was dismissed by the
Congregation as its Rabbi.
In its replying papers it submits further
that such termination was valid and lawful and fair in all the
circumstances and that
since the first respondent did not challenge
his dismissal before the CCMA or in the Labour Court, their right to
occupy the rabbinical
home has come to an end.
[66]
An examination of what transpired is that after
the wills dispute was finalized, at that early stage in favour of the
first respondent,
the applicant commenced disciplinary proceedings
against him due to his claimed misconduct
inter
alia
relating to the accusations made
against him by the Congregation and the Society before the Beth-Din
concerning that dispute. The
applicant avers that the charges against
the first respondent were of a serious nature relating to misconduct.
The first respondent
has not explained why he did not appear before
the appointed chairperson at the enquiry to state his case. The
chairperson ostensibly
came to a finding in the first respondent’s
absence that he had made himself guilty of certain misconduct and
recommended
the sanction of dismissal to the Committee.
[67]
The applicant, ostensibly acting through its
“Committee”, immediately terminated the first
respondent’s employment
as well as the respondents’ right
to occupy the property.
[68]
The first respondent was warned in the
communication of his right if he considered his termination to be
unfair to refer a dispute
regarding his dismissal to the CCMA within
thirty days.
[69]
It is common cause that he did not refer any
dispute to the CCMA. Indeed, he consciously elected not to follow
through with such
an option which the applicant contends was the only
avenue open to him if he wished to challenge his dismissal.
[70]
It is hard to discern the real nature of the
defence to the eviction claim. The first respondent appears to
equivocate between a
plea that suggests that the employment agreement
still exists because it was not lawfully cancelled or that its
cancellation was
a nullity as it were (giving him and the second
respondent a
right
still
to occupy), and an acceptance on the other hand that the agreement
was indeed cancelled, but that the termination is assailable.
Allied
to the latter defence is the claim that the only forum that can
decide finally whether the contract was “lawfully”
cancelled is the Beth-Din and that it is a pre-requisite for that
dispute to be determined before the respondents can be evicted
because their right to occupy rides on the coattails as it were of
that dispute determination. Interestingly, and perhaps strategically
so, the first respondent does not claim that his dismissal was
unfair, whether substantively or procedurally, as if to avoid any
concession that the termination of the employment agreement due to
his claimed misconduct was to be effected through the procedures
described in the Labour Relations Act, more particularly by resort to
the CCMA, or the Labour Court as the case may be, to challenge
his
dismissal.
[71]
Whereas the applicant bears the onus to prove the
termination of both the right to occupy and of the first respondent’s
employment
agreement (the right to occupy being subsidiary thereto),
the respondents bear an evidentiary burden to allege and prove the
facts
necessary to justify their plea that they are not in unlawful
occupation of the property.
[72]
It is common cause that the applicant convened
disciplinary proceedings against the first respondent before a
chairperson which
he chose not to attend, and that his dismissal
followed that process. He asserts that he took issue with the
standing of the chairperson
but has not taken the court into his
confidence in this respect to explain why. Later he referred a
dispute to the Beth-Din arising
from his dismissal, which is the
referral he relies on for his plea of “
lis
pendens
”
as it were.
[73]
The applicant has established through its
averments and the common cause evidence that the basis for the
termination of the first
respondent’s employment was due to
claimed misconduct on his part; that it followed an ostensibly fair
procedure prior to
terminating his services for such reason, which
entailed inviting the first respondent to make representations before
a disciplinary
enquiry that it convened for such purposes (an
opportunity he admits was afforded to him but which he spurned), and
that the claimed
misconduct entailed dishonesty and was of the nature
warranting his immediate dismissal upon a confirmed finding of
misconduct
on his part. It further alluded to its contractual
entitlement to effect the termination (at least of the first
respondent’s
services) through the procedures prescribed in the
Labour Relations Act.
[74]
Moreover, the applicant as the employer was the
proper entity, acting through its committee, to take this decision.
Indeed, in my
view it was never the Beth-Din’s to make if that
is what the first respondent seeks to suggest by the proposal that
the dismissal
was a “purported” one.
[75]
The first respondent has faintly suggested
that this court should not conclude that there was a
valid
termination of his services, without explicitly
revealing why.
[76]
Calling
the termination a “purported dismissal”, because it is
subject to challenge (as frequently occurs with any dismissal)
does
not in my view change the premise that the first respondent’s
employment was as a fact terminated.
[29]
Whether that dismissal was fair is a different enquiry to the one at
hand.
[30]
Indeed, every
enquiry into the fairness of a dismissal (which is what the labour
law dispensation concerns itself with in
all
employment
relationships) begins with the necessary jurisdictional fact that
his/her services were as a fact terminated and this
indeed appears to
me to be the very basis upon which the first respondent ultimately
sought to refer a dispute over his dismissal
to the Beth-Din, albeit
months later.
[77]
I am satisfied that whether wrong or right in the
first respondent’s view, whether timely, or whether the
Congregation followed
a fair procedure, or was properly constituted
when it dismissed him from its employ, the respondents can hardly
wish away the fact
that the first respondent’s services were,
as a fact, terminated on 3 February 2020 upending their contractual
entitlement
to remain in occupation of the property.
[78]
In the result I am satisfied that the applicant
has the met onus which it bears to prove the termination of the
contractual right
to possession which the first respondent would have
had but for the fact that he was dismissed from the applicant’s
employ.
[79]
This then brings the respondents within the
purview of the PIE Act as “unlawful occupiers”, entitling
them to the benefit
and protection of the provisions of the Act.
Indeed, it seems counter-intuitive to suggest that the Act’s
provisions do not
apply to their peculiar situation.
[80]
To bring it back to the PIE Act’s definition
of “unlawful occupier” the respondents’ express
consent initially
afforded to them by the applicant to occupy the
property has been revoked.
[81]
It has further not been suggested on their behalf
that any “tacit consent” to their continued occupation is
at play.
[82]
It was finally contended on their behalf
that they may have a “right in law to occupy” because the
final determination
of a labour dispute is a
pre-condition
for the termination of a right of residency
subsidiary to such agreement.
[83]
In
this respect, I was referred to Snyers v Mgro Properties (Pty)
Ltd
[31]
in which the court
held that the determination of a disputed labour matter
[32]
is a precondition for terminating the occupier’s right of
residence under section 8 of the Extension of Security of Tenure
Act,
No. 62 of 1997 (“ESTA”), which Act’s provisions
were applicable to that occupier’s entitlement to
resist the
employee owner’s claim to vacate premises occupied by him which
he had acquired tenancy of under a housing allowance
stemming from
his employment agreement. Although counsel for the respondents
in
casu
did
not suggest that ESTA applies to the facts of the present matter,
they prevailed upon me to find that the situation pertaining
to an
employee under ESTA was analogous to the scenario applicable in this
instance where the respondents assert a right to remain
in occupation
until the Beth-Din has determined the first respondent’s labour
(or earlier underlying) dispute one way or
the other.
[84]
The court in Snyers observed what an owner in the
unique circumstances under ESTA had to prove as follows:
“
[6]
… Under ESTA, an owner’s right to apply for eviction is
dependent on a number of prerequisites,
one of which is that the
right of occupation should be validly terminated in terms of s 8.
Sections 8(2) and (3) of ESTA provide
the following:
‘
The
right of residence of an occupier who is an employee and whose right
of residence arises solely from an employment agreement,
may be
terminated if the occupier resigns from employment or is dismissed in
accordance with the provisions of the Labour Relations
Act
[66
of 1996]
.
Any
dispute over whether an occupier’s employment has terminated as
contemplated in subsection (2), shall be dealt with in
accordance
with the provisions of the Labour Relations Act, and
the
termination shall take effect when any dispute over the termination
has been determined in accordance with that Act
.’ …”
[85]
The court went on to conclude as follows regarding
the validity of the notice to vacate that had been given to Snyers by
the farm
owners/employer:
“
[18]
In my view, when the respondents served the notice to vacate on
Snyers, his labour dispute
in the CCMA had not yet been determined.
That contravened the provisions of section 8(3) requiring
that where there is
a labour dispute relating to the termination of
the occupier’s right of residence, the termination only takes
effect when
such dispute is determined in accordance with the LRA.
In
Karabo
and others v Kok and others
1998 (4) SA 1014 (LCC)
at paragraph 14 [also reported at [1998] 3 All SA625 (LCC) –
Ed], the LCC, in a
judgment by Gildenhuys J (Moloto J concurring),
correctly held that:
“
The
right of residence of a person which arises solely from an employment
agreement, may be terminated if the person resigns from
his or her
employment or is dismissed in accordance with the provisions of the
Labour Relations Act. Any dispute over whether a
person’s
employment has been lawfully terminated must be dealt with in
accordance with the provisions of the Labour Relations
Act, and the
termination shall take effect only when that dispute has been
determined in accordance with that Act.” (Footnotes
omitted.)
In
paragraph 15, the LCC went on to say:
“
In
this case, there is a dispute over the validity of the termination of
the employment of the labourers, and this dispute is being
dealt with
under the provisions of the Labour Relations Act. Because the dispute
is still pending, the termination of the employment
for purposes of
the Tenure Act [ESTA] has not yet taken effect.”
And
in paragraph 22, the LCC held:
“
It
was submitted on behalf of the [farm owners] that the phrase ‘dispute
over whether an occupier’s employment has been
terminated as
contemplated in [subsec] (2)’ refers to a dispute on whether a
termination actually occurred, and not to a
dispute over the
lawfulness of the termination. I do not agree with the submission.
Subsection (3) refers back to [subsec] (2),
which provides that the
right of residence of an occupier may be terminated if he or she
resigns or is dismissed in accordance
with the provisions of the
Labour Relations Act. The termination of the occupier’s
employment as envisaged in [subsec] (3)
must, under the provisions of
[subsec] (2), be in accordance with the provisions of the Labour
Relations Act. This means that the
validity of the termination is at
issue. It is so, as pointed out on behalf of the [farm owners], that
such an interpretation would
oblige the owner of land to continue
housing dismissed employees while a dispute on the validity of the
dismissal is pending. Such
a dispute may take months to resolve. The
interpretation I have given to s[ubsec]s (2) and (3) is, in my view,
the only possible
interpretation. I cannot deviate from it because
the consequences are alleged to be unfair. The fairness or otherwise
of a legal
provision is for Parliament to decide. I should point out,
however, that in suitable circumstances, the owner or person in
charge
may be entitled to relief under s 15 of the Tenure Act.”
[19]
Determination of the disputed labour matter is thus clearly a
pre-condition for terminating
the occupier’s right of residence
under ESTA. Given the objects of ESTA stated in the above
dicta
of
the Constitutional Court, it necessarily follows where an occupier’s
tenancy is subsidiary to his or her employment on
a farm, that where
a dismissal is disputed, the dispute over its fairness must be
finally determined before the subsidiary tenancy
is terminated.
Accordingly, ESTA does not countenance notice given in terms
of section 8 while a labour dispute remains
undetermined.
The validity of the notice so given is vitiated by the lack of
determination of the labour matter. For these reasons,
and as section
9(2)(a) of ESTA makes the granting by a court of an eviction order
subject to the prior termination of the right
of residence in terms
of section 8, the notices given by the respondents to
Snyers were invalid and consequently vitiated
the entire eviction
proceedings against him.”
(Footnotes
omitted.)
[86]
However,
no such requirement, namely that the determination of a labour
dispute is a pre-condition for terminating an employee’s
subsidiary right to occupy property arising from an ordinary
employment agreement, exists under the PIE Act dispensation where
the
claim for ejectment is based on the
rei
vindicatio.
In
such a situation the owner approaches the court merely on the basis
of its ownership and the respondent’s unlawful occupation
of
the property, subject of course to the provisions of the PIE Act, the
application of which a court is obliged by its provisions
to apply.
[33]
[87]
An
occupier described under the provisions of ESTA is in a very
different position to the respondents. Indeed, ESTA speaks of an
occupier pursuant to its provisions as having a statutory “right
of residence”. Section 3 (1) of the ESTA further provides
that
that right (entailing consent within the meaning of the Act to reside
on or use land) shall only be terminated in accordance
with the
provisions of section 8 of the ESTA.
[34]
A statutory right of residence, the protection of which is
fastidiously prescribed under defined circumstances for a
particularly
vulnerable category of occupier singled out by the
legislature, is vastly different from the respondents’ unique
contractual
rights arising within the four corners of the employment
agreement which applies
in
casu
.
[88]
In
conclusion, I am satisfied that the respondents are “unlawful
occupiers” within the meaning of the definition in
the PIE Act
and that the applicant is, in principle, entitled to an eviction
order subject to the constraints imposed by section
4 of the PIE Act.
Indeed, this is a classic case of holding over which is in a category
all of its own for purposes of applying
the relevant provisions of
the PIE Act.
[35]
The procedural
requirements:
[89]
An applicant in an eviction application that is
brought within the ambit of the PIE Act is required to establish that
the procedural
requirements of the PIE Act have also been met.
[90]
Section
4 (2) of the PIE sets out the necessary requirements regarding
notification to the person or persons sought to be evicted
of the
date of the hearing, over and above the requirement of service as
determined by the rules of the applicable court.
[36]
[91]
The
court’s consideration and application of section 4 (2) is
procedural in nature and does not involve a decision on the
merits.
[37]
The two-fold
enquiry concerning whether, firstly, the person in respect of whom
the eviction order is sought is an unlawful occupier,
and, secondly,
whether it is just and equitable to grant an eviction order, do
indeed involve the merits and is dealt with on the
date of the
hearing.
[92]
I have set out above the full exposition of
section 4, and I presently draw attention to the provisions of
sub-section (1) to (5)
thereof that concern themselves with the
procedural aspects of an application such as the present one.
[93]
In
Cape Killarney Property Investments (Pty) Ltd v Mahamba
[38]
the Supreme Court of Appeal outlined the basic principles of
interpretation regarding section 4 (2) of the PIE Act. In broad
terms,
a PIE application is to be launched like any other and after
the papers on both sides have been exchanged (in opposed matters) and
a date for the hearing has been determined, the court is only then
approached on an
ex
parte
basis
for directions in terms of section 4 (2). The notice in terms of
section 4 (2), containing the date of the hearing and other
prescribed information is then to be served on the respondent. With
the same objective in mind, if the matter is unopposed, the
ex
parte
application
for directions is to be brought after expiry of the
dies
for
filing a notice to oppose, and the notice in terms of section 4 (2)
is then served on the respondent to inform him/her of the
date of
which the application will be moved on an unopposed basis. There are
therefore two distinct, but related, applications.
[94]
The
detailed notice procedure and format of applications under the PIE
Act (in the Magistrate’s and the High Court’s
respectively) has been helpfully summarized in Eviction and Rental
Claims: A Practical Guide,
[39]
as follows:
“
1.
The Long Notice of Motion should be followed – High Court Form
2(
a
)
and Magistrates’ Court Form 1A. Proceedings may also be
instituted in the Regional Civil Courts. If proceedings are
instituted
by way of summons, a combined summons in accordance with
the rules is required – see para 10 below. The Notice of Motion
must state the normal time periods for opposing and filing of
opposing affidavits in terms of the rules of court. (See the
precedents
of both the substantive and
ex
parte
applications
in par 3, Appendix A)
2.
Once
the Notice of Motion, being the substantive application, has been
served, and the time for filing a notice to oppose has expired,
the
ex
parte
application
in terms of section 4(2) becomes relevant. This
ex
parte
application
serves to obtain the court’s directions for service of the
section 4(2) notice and the date of the hearing. The
content of the
section 4(2) notice is discussed below. In effect, the section 4(2)
notice is an additional notice of the date of
the hearing, apart from
the notice of motion in terms of the court rules. Importantly, this
notice must contain the same unopposed
date of hearing as that in the
substantive notice of motion. Therefore, when drafting the
substantive Notice of Motion, care should
be taken to allow
sufficient time prior to the date of hearing, in the event that the
matter is not opposed, for the
ex
parte
application
to be prepared, brought and for service of the order. A period of 14
normal days must be allowed from date of service
of the
ex
parte
order
to the date of hearing. The
ex
parte
application
may be brought either in chambers or set down on the unopposed motion
court roll, depending on the practice of the relevant
court.
[40]
3.
The
time periods in terms of the rules of court include only court days
and therefore compliance with the 14 day period of section
4(2) will
follow automatically.
[41]
The
Notice of Motion must contain a date of hearing of the application,
if unopposed. This provision may not apply in some divisions
of the
High Court.
[42]
4.
After obtaining
the
ex
parte
order,
the notice containing the court’s directions and the date of
the hearing, must be served on the unlawful occupier as
well as the
municipality having jurisdiction, at least 14 days prior to the
hearing of the proceedings. Section 4(2) therefore
requires 14 days’
notice of the date of the hearing in addition to notice in terms of
the Rules of Court.
5.
If a Notice of
Intention to Oppose is delivered, the
ex
parte
application
for the issuing of the section 4(2) notice should only be
brought
after
the
papers have been exchanged and a date for hearing has been
determined. In case of the action procedure, the process discussed
in
10 below must be followed. In opposed matters, if the respondent is
represented and unless large numbers of occupiers are involved,
the
parties may agree to waive section 4(2) to save costs, the respondent
or respondents having been effectively informed.
6.
The Court Order
authorising the section 4(2) notice should be served by the
sheriff along with the
ex
parte
notice
of motion. The main thrust of section 4(2) is the requirement of
notice of the proceedings and thus personal service is required
in
the absence of a clear indication that the respondent has received
notice.
7.
Section 4(2)
states that the notice has to be served by the court, however, this
does not mean service by a magistrate or judge,
only that the
contents and manner of service of the notice be authorised and
directed by an order of court. The latter authorisation
refers to the
interlocutory (
ex
parte
)
application in terms of section 4(2).
8.
If a Notice of
Intention to Oppose is delivered but the respondent fails to deliver
answering affidavits in accordance with the
rules, the applicant can
approach the court
ex
parte
for
authorisation in terms of section 4(2) and a date of hearing of
the matter will be obtained and inserted into the section 4(2)
notice. This notice is then to be served in compliance with
section 4(2) and care taken that the date inserted in the notice
and the time provided gives the respondent 14 days’ (ordinary
days) notice of the date of the hearing. On that date, the
matter may
be dealt with on an unopposed basis, or if the respondent then
appears, it may be postponed at the discretion of the
court after
hearing appropriate argument or as agreed between the parties.
9.
In
the High Court, divisions other than the WLD, and in the Magistrates’
Court, if an opposed application is postponed at
any stage after it
has been brought before the court legally in compliance with
section 4(2), an order dispensing with further
section 4(2)
notices should be sought to be made part of the postponement
order.
[43]
10.
If the action
procedure is utilised, it is suggested that the summons be issued in
the normal way in accordance with the rules of
court. Should a notice
of intention to defend be given, the
ex
parte
application
for authorisation of the section 4(2) notice is to be brought
once the pleadings are closed and a trial date set.
The notice should
indicate the trial date as the date of hearing of the proceedings. If
the matter is undefended or, during the
proceedings, the plaintiff is
procedurally placed in a position (in event of a notice of bar or
other interlocutory application)
to apply for default judgment,
the
ex
parte
application
for authorisation of the section 4(2) notice should then be
brought. The application for default judgment should
be made in the
motion court. The date of the hearing indicated in the section 4(2)
notice will be the date the matter will be heard
in motion court,
unless there has been non-appearance on the trial date and notice of
the trial date had been given in accordance
with section 4(2). The
section 4(2) notice is to be served on the defendant and the
municipality with 14 days’ notice
of the relevant date of the
hearing.
11.
In
both the motion and action procedures, care should be taken to
include in the section 4(2) notice, the affidavit or the particulars
of claim all the necessary allegations prescribed in PIE, apart from
dealing with the merits. This includes the relevant circumstances
in
terms of section 4(6) and (7) of PIE as well as a reference to
section 26(1) and (3) of the Constitution as prescribed in the
relevant case law.
[44]
The
wording of the note to comply with
Saunderson
[45]
and
supplemented in the case of
Dawood
,
[46]
is as follows:
Take
notice that:
“
(a)
your attention is drawn to section 26(1) of the Constitution of the
Republic of South Africa,
1996, which accords to everyone the right
to have access to adequate housing. Should you claim that the order
for execution or
eviction will infringe that right it is incumbent on
you to place information supporting that claim before the court;
(b)
in terms of section 26(3) of the Constitution you may not be evicted
from your home
or your home may not be declared executable and sold
in execution without an order of court made after considering all the
relevant
circumstances
(c)
in terms of rule 46A(2)(
b
) of the Rules of the High Courts of
South Africa (or in the case of the Magistrates’ Court “in
terms rule 43A(2)(
b
) of the Rules of the Magistrates’
Courts”) no writ of execution shall issue against your primary
residence (ie your
home), unless the court, having considered all the
relevant circumstances, orders execution against such property;
(d)
if you object to your home being declared executable or to an
eviction order, you
are hereby called upon to place facts and
submissions before the court to enable the court to consider them in
terms of rule 46A
of the Rules of Court. Your failure to do so may
result in an order declaring your home specially executable being
granted, consequent
upon which your home may be sold in execution.”
12.
In
the case of substituted service in terms of section 4(4) of PIE,
section 4(2) must still be complied with.
[47]
13.
When
applying the strict requirements stated in the
Cape
Killarney
case
sight must not be lost of the exceptions noted in the subsequent
decision of the SCA in
Moela
v Shoniwe.
[48]
In this case, the court held that:
“
The
object of section 4(2) is clearly to ensure that the unlawful
occupier and municipality are fully aware of the proceedings
and that
the unlawful occupier is aware of his rights referred to in
section 4(5)(
d
).
It may well be that this object, in appropriate circumstances, may be
achieved notwithstanding the fact that service of the notice
required
by section 4(2) had not been authorised by the court.”
That
may, for example, be the case if at the hearing it is clear that
written and effective notice of the proceedings containing
the
information required in terms of section 4(5) had in fact been
served on the unlawful occupier and municipality 14 days
before
the hearing.
The
court also referred, with approval, to the remarks made by Brand JA
in
Unlawful
Occupiers, School Site v City of Johannesburg
[49]
to
the effect that:
“
. . .
it was held in
Cape
Killarney Property
(
supra
)
at 1227E–F that the requirements of section 4(2) must be
regarded as peremptory. Nevertheless, it 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
had been
achieved (
supra
at
209G–H).”
14.
It
is clear from the above case law that the
ex
parte
order
may not include a
rule
nisi
that
in essence is an interim eviction order.
[50]
It is advisable to serve the
ex
parte
order
in terms of which the section 4(2) notice was authorised with
the notice.
15.
The
purpose of section 4(2) is to afford respondents in eviction
proceedings a better opportunity than they would have under
the
normal Rules of Court to put all the circumstances which they allege
to be relevant before the court and to inform them of
the basis upon
which the order is sought in order to enable them to meet that
case.
[51]
16.
The
Regulations promulgated due to the Covid-19 pandemic, in terms of the
Disaster Management Act (DMA
)
[52]
may require that additional facts must be dealt with in eviction
proceedings, depending on the applicable alert level.
Regulation
53
[53]
applies to evictions.”
[95]
The respondents have raised an objection to the
procedure adopted by the applicant
in
casu
. They do not complain that notice
was not effective within the meaning of the section’s
provisions, or that they were not
afforded a proper opportunity to
raise a defence or set out facts or circumstances bearing upon the
exercise of the court’s
discretion to make the order but claim
rather that the process adopted by the applicant was fatally
defective.
[96]
The applicant, purportedly
in compliance with the provisions of section 4 (1) and (2) of the PIE
Act, issued out a combined application
incorporating both the
substantive application for the respondent’s eviction and the
application for leave to serve notice
on them in terms of these
provisions, but the omnibus application appears on the face of it to
have been styled “
Ex
parte
application”.
This was filed together with a “Notice in terms of Section 4
(1) of the Prevention of Illegal Eviction
from Unlawful Occupation of
Land Act, No. 19 of 1998 for an order of eviction of the unlawful
occupiers,” followed by a founding
and confirmatory affidavit
respectively. The relief sought in the authorization application was
granted and the court's order,
and the section 4 (1) notice together
with the main application and supporting papers, were served (all
together) on the respondents
on 7 July 2021. They were informed in
both the section 4 (1) notice and the notice of motion in respect of
the eviction application
that the anticipated hearing would ensue on
27 July 2021 and that they would be given a date by when they would
be asked to vacate
the property, failing which the sheriff’s
assistance would be invoked, this all assuming that no notice to
oppose was expected
to be given.
[97]
The
respondents take issue with the fact that the applicant firstly
sought to truncate the time frames provided for in the Uniform
Rules
of Court as read with the provisions of section 4 of the PIE Act,
although each application is separate and has its own unique
procedures and objectives. The concern is that the single application
incorporating the customary section 4 (2) interlocutory application
and the actual eviction application that prescribes the usual running
of
dies
to
oppose and file answering papers in respect of the substantive relief
sought, were initiated together at the same time.
[54]
The
ex
parte
part
of the application was enrolled for the court’s directions in
open court, apparently on the face of it in consequence
of a
direction of a judge in chambers that such application should be set
down for hearing on the unopposed motion court roll.
Thereupon the
section 4 (2) application together with the papers in the main
application, the court’s order (directions)
and notice advising
the respondents that they were entitled to appear before the court
and defend their case and, where necessary,
had the right to apply
for legal aid, were served on the respondents and the municipality
all at the same time as the initiating
process. The obvious effect of
this is that the 14 days afforded to them by the notice to state
their case in consideration of
their likely eviction was subsumed
under the
dies
to
give notice to oppose and file answering papers in respect of the
substantive relief sought, alternatively the appearance was
given
that the substantive application for eviction was launched on an
ex
parte
basis.
[98]
Secondly,
whereas the parties were already involved in litigation in the
numerous other applications and action aforesaid, Mr. Miller,
who
addressed the court in respect of the “practical issues”,
registered concern that an
ex
parte
approach
had been made to the court in all the circumstances to obtain
directions for service.
[55]
[99]
The
respondents had heralded already upon receipt of the first notice
that they would object to the fact that the applicant had
obtained
its leave from the court to issue out the requisite notice on such a
basis in circumstances where the parties were very
much embroiled in
other litigation before the court. Ignoring the gauntlet thrown down
to the applicant’s attorneys that
its approach was irregular
(especially since the applicant had pleaded in its founding
affidavit, misleadingly in its view, that
the procedural requirements
of the PIE Act had already as a fact purportedly been met) and that
they would object in their papers
and request a punitive costs order,
the respondents ultimately took the point in their answering papers
that the application was
fatally defective for want of compliance
with the provisions of the PIE Act, and contrary to the rules of
court as well as “settled
case law relating to the provisions
of section 4 and the manner in which applications are to be
brought”.
[56]
[100]
In resisting the
respondents’ contention that the application was fatally
defective, the applicant contended in reply that
the first notice
that had been served did not purport to constitute the requisite
section 4 (2) notice except in the event that
the substantive relief
was not going to be opposed. It was moreover submitted that the
obtaining of an
ex
parte
notice
“in the usual manner” in applications of this nature (in
other words not in open court as was here contended
for) in no way
prejudices the respondents. The respondents indeed opposed the relief
sought in the substantive application and
delivered answering papers,
this negating any suggestion of prejudice to them.
[101]
Since the substantive
application was opposed after all, the applicant indicated in its
replying affidavit - without conceding the
point that its first
notice was “irregular” in any respects, that it intended
to “give proper” notice once
the pleadings in the main
eviction application had closed which would result in its necessary
compliance with the provisions of
section 4 (2).
[102]
True
to their word, once the pleadings had closed, the applicant again
approached the court on an
ex
parte
basis,
and a second notice was served well in the time before the
hearing.
[57]
The applicant
thus contends that proper and effective notice was given. However, it
did not address the implications of the costs
order visited upon the
respondent in the circumstances.
[58]
[103]
The “outrage” of
the respondents against the obtaining of the directions and leave of
the court to serve the requisite
notice on an
ex
parte
basis,
not once, but twice, and the second time after the respondents had
complained in their answering papers that their right
to receive
notice of such application was being ignored in the context of the
acrimonious and convoluted litigation already between
them, is not
surprising. I can imagine that this might cause a respondent in
similar circumstances to reflect that they were being
kept in the
dark and litigated
about
rather than
with
,
but this manner and format of the procedural aspect of eviction
applications has received the endorsement of our courts as is
indicated in the excerpt above and is not technically incorrect.
[104]
I
asked Mr. Miller where the approach of using the
ex
parte
form
of application to obtain the court’s directions had emanated
from, and he pointed me to paragraph [15] of the Cape Killarney
[59]
judgment in which the court held as follows:
“
Section
4 does not indicate how the court’s directions regarding
the section 4(2) notice is to be obtained.
A common-sense
approach to the section appears to dictate, however, that the
applicant can approach the court for such directions
by way of an
ex
parte
application.”
[105]
I
agree with Mr. Miller that the same common-sense approach might cause
one to reflect that in a scenario where litigation is already
pending
it might create
a
perception of opacity to approach the court for directions on an
ex
parte
basis,
but this is indeed the indicated and time-tested method of meeting
the objective of section 4 (2).
[60]
I therefore cannot find that the
ex
parte
approach
on either occasion, notwithstanding the parties’ unique
circumstances and involvement in other litigation at that
stage,
constitutes the fatal defect contended for.
[106]
The point is validly taken though that the
procedure adopted by the applicant at the launch of the application
generally was somewhat
clumsy and quite unconventional. Of course,
the substantive application for eviction was not launched on an
ex
parte
basis although the impression is
given that it was and the section 4 (2) application, although
subsidiary to the main application,
was presented as the primary
application whereas it was self-evidently merely interlocutory in
nature. The main application is
also deceptively referred to as the
applicant’s notice in terms of section 4 (1) of the PIE Act,
whereas it contained all
the elements of a Form 2 (a) notice in
compliance with the provisions of rule 6 and properly directed the
respondents as to what
they should do and when if they wished to
oppose the substantive relief sought. The “section 4 (1)
Notice” further
directed the respondents as to what it was
necessary for them to do ostensibly in compliance with the provisions
of section 4 (5)
of the PIE Act. Indeed, despite the strange format
of the application adopted,
I
take Mr. Pincus’ point that but for the fact that the
respondents had indicated their intention to oppose, the first notice
might have sufficed and met the procedural requirements of the PIE
Act.
[107]
In foreshadowing that a
second notice would be sought and served in circumstances where the
respondents had complained that the
first notice suffered from
certain defects, I can appreciate too how this would have seemed
tantamount to an acceptance by the
applicant that it had come up
short, but these steps taken are merely formal and ancillary to the
process and as long as the applicant
ultimately gives the required
notice fourteen days before the hearing (after seeking the court’s
leave as it did ultimately),
it would in my view meet the necessary
procedural requirements postulated by section 4 (2).
[108]
This
issue of two costs orders is however problematic. Whilst the first
notice might at a push have sufficed, assuming that the
application
had proceeded unopposed, the second application ostensibly proved
necessary in circumstances where the applicant must
have reasonably
foreseen that there would be pushback and opposition forthcoming from
the first respondent who up to that point
had strenuously defended
his place as Rabbi in the community. It seems unfair therefore to
mulct the respondents with the costs
of two such notices. In my view
it seems more appropriate in an interlocutory application in terms of
section 4 (2) to ask that
the costs occasioned by obtaining the
necessary authorization of the court be reserved for determination at
the hearing of the
eviction application.
[61]
[109]
Although
the provisions of section 4 (2) are peremptory, it is a trite
principle that not every deviation from the literal prescription
is
fatal. The question remains whether, in spite of the defects, the
object of the statutory provision has in fact been achieved.
[62]
I have said above that I am satisfied that though unconventional, the
applicant both afforded the respondents the opportunity to
oppose the
substantive application and gave them the opportunity, well in time
before the hearing, to state why a court should
not evict them.
[110]
A
court will be slow to penalise an applicant where the notice served
the requisite purpose intended by the legislature. As was
stated
in Unlawful Occupiers, School Site v City of Johannesburg:
[63]
“
The
question whether in a particular case a deficient section 4(2)
notice achieved its purpose, cannot be considered in the
abstract.
The answer must depend on what the respondents already knew. The
appellant’s contention to the contrary cannot
be sustained. It
would lead to results which are untenable. Take the example of a
section 4(2) notice which failed to comply
with section 4(5)(
d
)
in that it did not inform the respondents that they were entitled to
defend a case or of their right to legal aid. What would
be the
position if all this were clearly spelt out in the application
papers? Or if on the day of the hearing the respondents appeared
with
their legal aid attorney? Could it be suggested that in these
circumstances the section 4(2) should still be regarded
as
fatally defective? I think not. In this case, both the municipality’s
cause of action and the facts upon which it relied
appeared from the
founding papers. The appellants accepted that this is so. If not, it
would constitute a separate defence. When
the respondents received
the section 4(2) notice they therefore already knew what case
they had to meet. In these circumstances
it must, in my view, be held
that, despite its stated defects, the section 4(2) notice served
upon the respondents had substantially
complied with the requirements
of section 4(5).”
[111]
Ironically here, exactly because of the
acrimonious litigation between the parties, and the sparring between
their respective attorneys
in a number of related cases, it
can hardly be suggested that the respondents were not in the know
regarding what case they had
to meet, neither have they in my view
been prejudiced except by having been ordered to pay the costs of the
superfluous directions
application in the cause.
[112]
In conclusion
I am satisfied that effective
notice of the proceedings was given.
The constraints
posed by the DMA:
[113]
The objection in this respect is no longer
relevant. Although the applicant failed to deal in its founding
affidavit with the Disaster
Management Regulations in place at the
time of the launch of the application, the court would, in the event
that these regulations
were still in place, certainly
at
the time of making such an order
have
considered the import of these together with the “relevant
circumstances” that it is in any event obliged to have
regard
to in considering whether it is just and equitable to order the
eviction of the respondents. The “other relevant
circumstances”, relative to the state of disaster and its
peculiar impact, which this court would have considered but for
the
emergency having been declared at an end by the time of the hearing,
whether referenced by the parties in their papers or not,
no longer
apply.
[114]
Whilst it may have been expected of the applicant
to especially allude to these factors in their papers, I do not
consider it “fatal”
to the application that it did not do
so.
Is it just and
equitable to order the respondents’ eviction under the relevant
circumstances:
[115]
If
I am wrong in my conclusion above that the respondents are unlawful
occupiers and that the applicant is entitled in principle
to an order
evicting them from the property, the enquiry does not end there.
That
is because
an
eviction application will only be granted if, after considering all
the relevant circumstances, it is “just and equitable”
to
make such an order.
[64]
[116]
The
court in PE Municipality v Various Occupiers
[65]
emphasized
the unique constitutional approach that courts must adopt in eviction
matters:
“
The
court
is thus called upon to go beyond its normal functions, and to engage
in active judicial management according to equitable
principles of an
ongoing, stressful and law-governed social process. This has major
implications for the manner in which it must
deal with the issues
before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which it
exercises its powers and
the orders it might make. The Constitution and PIE require that
in addition to considering the lawfulness
of the occupation the court
must have regard to the interests and circumstances of the occupier
and pay due regard to broader considerations
of fairness and other
constitutional values, so as to produce a just and equitable
result.
”
[66]
[117]
The respondents’ right to occupancy
originated in an employment agreement that in itself is somewhat
unique since the employer
regards itself as a “Holy Assembly”
in the “House of Israel” in which relationships arising
within the
Congregation are of a sacred character. The respondents
subscribe to that religious community and exercise their fundamental
rights
together with the Congregation under the mantle of the
voluntary association. The applicant is, in turn, a constituent
member of
the Federated Council and the Congregation and its members
and officials are bound by its Articles of Association.
[118]
The respondents’ derivative rights to occupy
the rabbinical home obviously stand or fall by their status as
officials made
provision for in the employment agreement. The roles
performed by the respondents are especially significant and carry
with them
an aura of dignified leadership, awe, and reverence. The
respondents, both in their sixties, appear to be non-South African
citizens
hailing from Michigan USA, although having permanent
residence within the country. This suggests to me that they came into
the
local Jewish community as invited and revered guests and are
dependent for their livelihood on the largesse of the applicant’s
members albeit in the form of salary and related benefit entitlements
under their employment agreement. To this extent their security
of
tenure, belonging and feeling accepted is bound up in their
membership and adherence to the Jewish law and customs subscribed
to
under the constitutions of both the Congregation and Federated
Council respectively.
[119]
An
employment agreement comes with its own distinct consequences and
treatment in secular law. Whereas an employee has no right
not to be
unlawfully dismissed, he certainly has a constitutional right to fair
labour practices.
[67]
Where an
employee challenges his dismissal as unfair, he may hope to be
reinstated but that is not always guaranteed.
[68]
From this perspective it accordingly seems inequitable to delay the
respondents’ eviction from the property for a slim likelihood
that the first respondent may be reinstated. In terms of Jewish law
and custom however his fate would be in the hands of the Beth-Din
who
will deal the current impasse between the parties as it deems
appropriate, according to such authority and with the necessary
dignity that behooves the situation. That outcome may also not entail
a “reinstatement”, but it is apparent that the
first
respondent will accept and abide by whatever decision is made
concerning his future as the Congregation’s rabbi. This
is what
he has declared.
[120]
If parties regulate their relationship as one of
employment, then the provisions of the Labour Relations Act apply,
but that does
not necessarily mean that the many disputes between the
parties that have come over a lengthy period of time comfortably
resort
under the tidy concept of a dismissal dispute in respect of
which the CCMA has jurisdiction. Evidently, there is more to
this long-standing dispute than the culmination of the first
respondent’s dismissal.
[121]
It
seems unfortunate that the first respondent spurned the opportunity
to refer a dismissal dispute to the CCMA, but the irony is
that if he
had appealed against the disciplinary hearing outcome to the Beth-Din
(as one might suggest he did, albeit later), the
dispute arising
therefrom would not have been conciliated in terms of the LRA until
the appeal process had run its course.
[69]
In effect it has not yet been finally determined, neither did the
first respondent participate in the pre-dismissal hearing.
[122]
Despite
what the employment agreement provides in clause 15, clause 13 merely
provides that a termination of the agreement due to
misconduct “shall
be effected through the procedures prescribed in the Labour Relations
Act”. That is merely reinstating
the law as it applies to all
employment agreements save for the statutory exclusions which do not
apply here.
[70]
Those
procedures do not confine the parties to seek their recourse before
the CCMA. The LRA, and more especially the Code of Good
Practice in
respect of Dismissals,
[71]
endorses the primacy of collective or recognition agreements between
parties and a preference for a resolution of disputes according
to
such instruments.
[72]
In other
words, a resolve of the parties differences concerning the claimed
misconduct by the Beth-Din would not be proscribed
by “the
procedures” made provision for in the LRA. To the contrary,
where parties are able to resolve their disputes
themselves, this is
encouraged under the LRA and may found a basis for the labour fora to
stay curial proceedings in the interests
of such private dispute
settlement option.
[123]
Although I concluded above that the respondents do
not have a
right
to
residency such as an occupier under the ESTA, I am inclined of the
view that the approach adopted by the SCA in Snyers does indeed,
as
counsel for the respondents submitted, provide guidance concerning
what the court would consider fair in a similar scenario
not only in
a labour context where the respondent’s right to occupy is an
employment benefit under their relationship, but
equally so in the
constitutional realm of evictions where equitable principles apply.
[124]
In
Minister of Police v Moodley
[73]
the employer purported to evict an employee from official
police
quarters without regard to the latter’s constitutional right to
procedurally fair administrative action according to
the
well-established common-law concept of natural justice. Whereas
section 3(2) of the Promotion of Administrative Justice
Act, No.
3 of 2000 (“PAJA”) requires an administrator to give an
affected person adequate notice of the nature and
purpose of the
proposed administrative action, the respondent in that case 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 court held that it was
not open to the SAPS to terminate
occupation
of
official quarters without following due process. The purported
termination of the respondent’s
occupation
was
thus
unlawful
and
the appellant’s application for eviction could not succeed.
[125]
Whereas the facts of that matter are
distinguishable from the present instance, and whereas the argument
in that judgment went about
the lawfulness of the occupation rather
than the concepts of justice and equity envisaged under the PIE Act,
it appears that a
court will lean in favour of an employee being
afforded a fair opportunity to defend his derivative right of
residency so as not
to be rendered homeless, before evicting him.
[126]
By parity of reasoning, the expectation that the
first respondent should be given the opportunity to have a labour
dispute finally
determined before being evicted to my mind accords
with the constitutional objectives of justice and equity.
[127]
There is every indication that the first
respondent has sought to subject himself to Halachic authority in
respect of the issues
which have arisen and have caused this
congregation to limp along since the Society first accused him of
misconduct. In the context
of the sacred assembly that the
congregation is, it is worrying that the matter remains unresolved
years after the fact and the
relationships between the parties in
tatters. While a resort to the secular courts may have been legally
justified, this is not
what voluntary associations are all about.
[128]
Despite the fact that the first respondent
resisted an appearance before disciplinary hearing, it is abundantly
plain that he has
to date not had the opportunity to state his case.
Fairness underscores relationships of employment. Further, where a
derivative
right of occupancy inextricably linked with such
relationship is under threat, a court must strive to ensure that
justice and equity
prevail in a scenario such as the present one.
[129]
On a balance of the competing rights of the
parties, it is significant to my mind that the applicant has not
given an inch in making
it possible for the first respondent to
present his side of the story. The applicant has not even taken this
court into its confidence
concerning the actual charges of misconduct
against the first respondent if such complaints are against him at
all (concerning
the contested will), as opposed to the second
respondent. Neither has it afforded a plausible reason why it would
not submit itself
to the authority of the Beth-Din to allow the first
respondent’s dispute referral to be finally determined, since
the ecclesiastical
court will surely be comprised of different
dayanim.
[130]
If this court is to remain true to the principles
of justice and equity, I consider it necessary to allow the parties
(and I stress
that this is not only the concern of the first
respondent) a reasonable opportunity to seek a resolve of the issues
that continue
to bedevil the harmonious order of the Congregation
before determining finally whether it is fair, appropriate, and
timely that
an eviction order be granted.
[131]
In the premises I issue the following order:
1.
The application for eviction is hereby stayed
pending:
1.1
the final determination of the first
respondent’s appeal in Makhanda case number 1340/2021; and/or
1.2
the (earlier) adjudication by the Beth-Din
(by agreement between the parties) of the first respondent’s
dismissal dispute;
and/or
1.3
Mediation
between the parties of the said dispute.
[74]
2.
The registrar of the Makhanda High Court is
requested to place the matter referred to in paragraph 1.1 above on
the case management
roll to ensure the earliest enrolment of the
appeal.
3.
The parties shall be entitled to apply on notice
to this court on the same papers, duly supplemented, for a fresh
consideration
of the provisions of section 4 (7) and (8) of the PIE
Act against the context of the opportunity afforded to them in
paragraph
1 above and its aftermath.
4.
The re-enrollment of the matter invited in
paragraph 3 above shall not be given before 13 August 2022 (“the
grace period”),
unless the parties agree that it may happen
before the end of such period.
5.
Further notice in terms of section 4 (2) of the
PIE Act shall not be necessary.
6.
The costs are reserved.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 9
February 2022
DATE
OF JUDGMENT: 13 May 2022
*Judgment
delivered electronically at 09H30 on this date by email to the
parties.
APPEARANCES
:
For the applicant:
Mr. S P Pincus SC instructed by Stirk Yazbek Attorneys, East
London (ref. Mr. G Stirk).
For
the first and second respondents: Mr. I J Smuts SC together with Mr.
T S Miller instructed by Wheeldon Rushmere & Cole c/o
Lionel
Trichardt & Associates the State Attorney, East London (ref. Mr.
Trichardt).
For
the third respondent: No appearance.
[1]
The
applicant is a duly constituted Voluntary Association. It is
an Orthodox Hebrew Congregation and a constituent member
of the
Union of Orthodox Synagogues of South Africa (“The Federation
Council”).
[2]
The
third respondent is cited in the application as a possible
interested party and as the municipality having jurisdiction in
terms of the provisions of section 4 (2) of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, No.
19 of
1998 (“the PIE Act”). The municipality does not
oppose the application. For convenience I will,
where I intend
to refer to the Rabbi and Rebbetzin collectively, allude to them as
“the respondents”, and to the
third respondent
separately as “the municipality”.
[3]
There
is no suggestion that the applicant does not have
locus
standi
as
the owner of the property to vindicate its rights, but the
respondents plead that the applicant has no standing in terms of
its
constitution to bring the present eviction application before this
court. They contend in this respect that the ecclesiastical
court
which exercises exclusive jurisdiction over disputes arising from
the employment relationship would be the proper forum
in which to
determine “disputes of this nature.” This
contention however misses the point that a party’s
eviction
from his/her home can only be ordered by a secular court referred to
in the PIE Act, after considering all relevant
circumstances and
that such application would be expected to be initiated by an owner,
as in this case.
[4]
The
contract was ostensibly entered into by the Congregation with both
of the respondents and provides for a 60/40% split of the
agreed
upon remuneration in lieu of the obligations that each are expected
to perform thereunder. Despite how the agreement is
formulated, it
was not suggested by any of the parties - I assume on the basis of
their mutual acceptance of the Jewish faith
and
Halachic
authority,
that the second respondent has any entitlement to enforce its
provisions, more particularly the right to occupy the
property,
independently
vis-á-vis
herself
as primary occupier. Although the second respondent occupies
the property
both
through
her husband and in her own right, her voice has been somewhat muted
in these proceedings. Her purported confirmatory
affidavit, in
which she aligns herself with the relief sought by the first
respondent (namely that the present application be
dismissed with
costs on the scale of attorney and client), goes along with the
premise that she occupies the rabbinical home
at the behest of the
first respondent (i.e., as a secondary occupier); and makes common
with the allegations made in the main
answering affidavit, was
delivered unsigned. Mr. Pincus who appeared for the applicant
brushed this aside as a trifling
side issue, but in truth it is
not. Against the express objects of the PIE Act the
entitlement of each respondent to place
all relevant circumstances
before the court, especially where each have their own right and
standing as primary occupiers to
vindicate their entitlement to
occupy, is a significant opportunity. Although I accept
counsel’s assurance that nothing
is amiss thereby, it is
important that a litigant’s concerns, if any, are, on the face
of it, properly vouched for in the
papers. However, the approach I
adopt herein (based on an apparent acceptance by all the parties in
this regard) is that the
second applicant’s right to occupy is
inextricably linked with her husband’s.
[5]
The reference to clause 9 must be an error. Clause 10 sets out
the unique responsibilities of each of the two respondents
bearing
upon their official duties. Apart from the listed obligations,
the parties agreed that the terms of the first respondent’s
engagement would be such as are applicable, and usual or customary,
for a Rabbi to perform in a standard South African Orthodox
Hebrew
Congregation. Section 17 of the agreement, which also deals
with “conduct”, specifies that the conduct
of the first
respondent, as official, shall “be one of dignified leadership
carrying with it awe and reverence and fitting
behaviour consistent
with his standing as Rabbi/Chazan in the community”. I
highlight the expectations on his part especially
as it is his
claimed misconduct that, according to the applicant, has caused the
respondents’ entitlement to occupation
of the rabbinical home
to have fallen away.
[6]
This
was not included amongst the annexures to the founding papers.
[7]
This is presumably the Committee of the Congregation in terms of its
own Constitution.
[8]
The
applicant did not state specifically whether it relies on section 4
(6) or 4 (7) of the PIE Act but purported to cover the
requirements
specified by the latter sub-section. Neither party suggested
incidentally that the Municipality needed to
become involved on the
basis contemplated by sub-section (7).
[9]
See
section 4 (8) of the PIE Act. This assertion was probably
premised on the expectation that the matter would proceed
on an
unopposed basis and that the parties could, on the applicant’s
averments, raise no serious defence to the eviction
claim.
[10]
What
the “dispute” is that falls to be resolved on such a
basis is unfortunately not clearly spelt out. I assume
contextually though that the first respondent means a prior related
dispute (wills dispute) which ultimately conduced to, or
culminated
in, his dismissal. See Footnote 2 above though regarding my
view on the suggested claim of lack of
locus
standi
on
the part of the applicant to bring the eviction application.
[11]
This
contention is not really understood since the period of occupation
for these purposes is calculated from the date on which
the
occupation becomes unlawful. Ndlovu v Ngcobo; Bekker and Bosch v
Jika
2003 (1) SA 113
(SCA)
at para 17
.
In this instance the applicant’s consent to the respondents’
occupation of the residency, on its case, would
have fallen away at
the end of March 2020 if regard is had to the extension granted to
them (see termination letter), if not
on the same date of the first
respondent’s dismissal. I have indicated above that the
applicant seems however to
have premised its case on the basis that
the provisions of sub-section (7) are of application and indeed
addressed the relevant
concerns required to be raised by these
provisions in its replying affidavit.
[12]
This is the only information provided to the court in effect
concerning the nature of the dismissal dispute. Reading
between the lines the first respondent seems to be complaining that
his dismissal was both substantively and procedurally unfair,
substantively because there was a lack of proof that he is guilty of
misconduct, and procedurally because the applicant purported
to
dismiss him prematurely before the Beth-Din, which has the final
say, in fact had that say about both his proven misconduct
and need
to step down as the Congregation’s rabbi. It is entirely
illogical to suggest though that the applicant
(represented through
its Committee) is not the entity that is entitled to hire and fire
its own rabbis.
[13]
See footnote 10 above. It is not clear if he means all the
matters pending in the high court or only Makhanda case no.
1340/2021 that bears directly on the dismissal dispute. In my view
it would be too remote to include the pending action between
the
Society and the first respondent regarding the validity of the will
that is in dispute.
[14]
[2016] 4 All SA 828 (SCA).
[15]
As indicated above I assume that this would be the
Committee
under the Congregation’s own constitution.
[16]
In
the applicant’s replying affidavit, the co-president of the
Congregation reveals that the Society was not happy that
the
applicant had bound it to the referral. This leaves the
distinct impression that the dispute with the first respondent
over
the will of the deceased was principally driven by the applicant.
[17]
The
first respondent accuses Mr. Robinson, who is a trustee of the
applicant and deposed to the affidavit filed on its behalf,
of
having been the driving force of all the proceedings against him and
his wife.
[18]
This is the acronym for the Society.
[19]
This
is the same date on which the respondents were served with the “
Ex
parte
”
application
for eviction.
[20]
Makhanda
case number 1770/2020 refers.
[21]
The
applicant reveals that the action does not concern it and the first
respondent, but rather that it is between the Society
and him.
[22]
The
legal consequence is not relevant to these proceedings. The
irony though is that this revelation possibly points away
from
misconduct on the part of the first respondent although, as the
applicant pleads, the wills dispute is not the only issue
between it
and the first respondent.
[23]
A
glance at the Beth-Din’s correspondence in this respect dated
24 June 2020 does not at all suggest a random withdrawal
of its
earlier findings. It explains why a retrial was necessary
having regard to its own internal process and invited
the parties to
a fresh hearing via
Zoom
which
it offered to hear on an urgent basis on 30 June 2020. The
applicant put this letter up in support of the allegation
that the
Beth-Din had withdrawn its original ruling, but failed to suggest
what had transpired thereafter or why the invitation
for a retrial
was not taken up, or what the further outcome was, if any.
[24]
See Preamble to the Act. See also Christo Smith,
Eviction and Rental Claims: A Practical Guide, Part 1: The Law of
Eviction, Chapter 3 The Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act re The scope of PIE at par 3.1.
[25]
Ndlovu v Ngcobo; Bekker and Bosch v Jika
2003 (1) SA 113
(SCA) at
par [16].
[26]
Locus
standi
is
instead challenged on the basis that the parties resort should have
been to the Beth-Din to resolve the first respondent’s
dispute/s as a precondition for a valid termination before the
subsidiary tenancy can be said to have come to an end.
[27]
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(A) at 82
A – C. Ndlovu
supra
at
par [19].
[28]
Chetty
v Naidoo
1974 (3) SA 13
(A) at 21 G - H.
[29]
“
Dismissal”
is defined in section 186 (1) of the Labour Relations Act, No. 66 of
1995 (“LRA”) as “a termination
of employment with
or without notice”.
[30]
The
LRA does not contemplate that a dismissal could be “invalid”
and thus of no force or effect neither does an employee
have a right
“not to be
unlawfully
dismissed”.
See Steenkamp & Others v Edcon Ltd 2016 (3) BCLR 311 (CC).
[31]
Supra
particularly
at pars [6] and [19].
[32]
The
occupier had referred a constructive dismissal dispute to the CCMA
after he was constrained to resign in order to receive
payment of
his pension benefits that should have been paid to him after he
entered into a new employment contract with the successors
in title
of a group of farms where he had previously worked as a farm
labourer. He was promoted to the position of senior
foreman
and transferred to a different farm under occupation by him under a
new contract. He claimed to have been induced by
the new employer to
resign after they told him that he could not access his pension
payment unless he resigned. In the
course of his long service
on the farm (beginning from Hexrivier until he transferred to the
new farm) he had accrued a substantial
pension carried over from his
former employer. Rightly or wrongly, so the court observed, he
entertained an apprehension that
he might not get his pension monies
except if he resigned. The court found that his dispute had been
timeously referred to the
CCMA and had not been determined by the
date on which he received notice to vacate the premises.
[33]
Ndlovu
v Ngcobo, Bekker & Bosch v Jika
supra
at
para [19].
[34]
The ESTA provides as follows in this respect:
“
8. Termination
of right of residence.
—(1) Subject to the provisions of this section, an
occupier’s right of residence may be terminated on
any lawful
ground, provided that such termination is just and equitable, having
regard to all relevant factors and in particular
to—
(
a
)
the fairness of any agreement, provision in an agreement, or
provision
of law on which the owner or person in charge relies;
(
b
)
the conduct of the parties giving rise to the termination;
(
c
)
the interests of the parties, including the comparative hardship to
the owner or person in charge, the occupier concerned, and any other
occupier if the right of residence is or is not terminated;
(
d
)
the existence of a reasonable expectation of the renewal of the
agreement
from which the right of residence arises, after the
effluxion of its time; and
(
e
)
the fairness of the procedure followed by the owner or person in
charge,
including whether or not the occupier had or should have
been granted an effective opportunity to make representations before
the decision was made to terminate the right of residence.
(2) The
right of residence of an occupier who is an employee and whose right
of residence arises solely from an employment
agreement, may be
terminated if the occupier resigns from employment or is dismissed
in accordance with the provisions of the
Labour Relations Act.
(3
) Any
dispute over whether an occupier’s employment has terminated
as contemplated in
subsection
(2)
,
shall be dealt with in accordance with the provisions of the
Labour
Relations Act, and
the termination shall take effect when any
dispute over the termination has been determined in accordance with
that Act.”
[35]
Ndlovu v Ngcobo, Bekker & Bosch v Jika,
supra
at [16].
[36]
The
Joint Practice Rules of this division do not distinguish the
position regarding PIE applications, but there are distinct
provisions pertaining to the enrolment of both opposed and
uncontested opposed application matters, as the case may be, that
will have a bearing on how and when the requisite notice under the
PIE Act can and should be given.
[37]
Theart and Another v Minaar NO; Senekal v Winskor 174 (Pty) Ltd 2010
(3) SA 327 (SCA).
[38]
2001
(4) SA 1222 (SCA).
[39]
Christo Smith,
supra
,
Part 1 at par 3.5.2.
[40]
There are no specific practice rules in place in respect of eviction
applications in the Eastern Cape Province, but a chamber
book
application would unlikely be permitted given the requirement in
section 4 (2) of the PIE Act that “the court”,
as
opposed to a “judge”, is to serve written and effective
notice of the proceedings on the unlawful occupier.
Such
applications are routinely brought
ex
parte
and
set down for hearing on the unopposed motion court roll.
[41]
Kanescho
Realtors (Pty) Ltd v Maphumulo and others
2006 (5) SA 92
(D) at 97.
[42]
It is not uncommon in this division for the applicant to anticipate
that a respondent may not oppose the substantive relief sought,
leaving only the procedural requirements under the PIE Act to be
satisfied going forward, and making allowance for all of this
in the
planning and timing of the application. The substantive application
will then be enrolled on the projected date by the
Registrar already
at the time of its issue. The interlocutory application will
be separately issued and enrolled on the
unopposed motion court roll
once the time to oppose the substantive application has run its
course, and the order issued by the
court arising from this process
and the notice itself (served in time), will conduce to the
substantive application (already
enrolled in the original
anticipation that it would not be opposed) being able to proceed on
a default basis on the enrolled
date. Of course, if the respondent
files a notice to oppose the main application, then the matter takes
a different trajectory.
In that event the substantive
application should be removed from the unopposed motion court roll
and the issue of the interlocutory
application is delayed then,
quite substantially, to allow for an exchange of papers, whereafter
the appropriate directions are
sought, timeously towards that end.
[43]
This
essential practical step is not commonly employed although it ought
to be to ensure a seamless process that is also not prohibitively
costly to the respondent sought to be evicted.
[44]
Standard
Bank of South Africa Ltd v Saunderson 2006 (2) SA 264 (SCA)
at 276F–277A; Nedbank
Ltd v Jessa and
Another 2012 (6) SA 166 (WCC); Standard
Bank of SA Ltd v Dawood 2012 (6) SA 151 (WCC).
[45]
Standard Bank of South Africa Ltd v Saunderson
supra
.
[46]
Standard
Bank of SA Ltd v Dawood
supra
at
par 37.
[47]
This is the case even though service will obviously not be effected
“on the unlawful occupier”.
[48]
[2005] (4) SA 357
(SCA).
[49]
[2005] (4) SA 199 (SCA).
[50]
Cape Killarney
supra
at 1228 E – G.
[51]
Unlawful Occupiers School Site
supra
at 209 I;
Ploughman
NO v Pauw 2006 (6) SA 334 (C) at 342H. See
also Beetge v Bruwer
[2009] JOL 23614
(GNP).
[52]
Act 57 of 2002.
[53]
GNR 480 of 29 April 2020.
[54]
The
notice of application for service directions usually presents as an
interlocutory application subsidiary, or ancillary to,
the main
application.
[55]
The issue as he sees it a valid one in the context that there should
not be a resort to
ex
parte
proceedings
in the dark or behind the respondents’ backs, as it were,
especially where there is already ongoing litigation
between the
parties and both are legally represented.
[56]
The settled cases relied upon by the respondents are the Cape
Killarney and Kanescho judgments especially.
[57]
The date for the hearing was indicated as 10 February 2022 but given
the congested state of the roll that week, I requested the
parties
to argue the matter before me on the preceding afternoon, 9 February
2022.
[58]
The costs orders in these matter seem generally to be “in the
cause”, meaning that the party sought to be evicted
will pay
for the applicant’s procedural compliance with the provisions
of the PIE Act, ironically put in place for their
benefit.
[59]
2006
(5) SA 92 (D).
[60]
The
ideal must surely also be to keep the costs of the applicant’s
necessary compliance with the procedural provisions of
the PIE Act
to an absolute minimum.
[61]
I
n
the application initiating the process the applicant asked for costs
outright, not even in the cause.
[62]
Cape Killarney
supra
at 1227 E - F
See also Property Works 5 v Jamal & Others [2014] SAECELLC 5 (2
May 2014) at par [26] in which I
struck an application from the roll
for want of compliance with the provisions of section 4 of the PIE
Act but afforded the applicant
the opportunity to rectify its
shortcomings by giving the necessary notice.
[63]
[2005] 2 All SA 108 (SCA).
[64]
See
the particular approach adopted in City of Johannesburg v Changing
Tides 74 (Pty) Ltd & others (Socio-Economic Rights
Institute of
South Africa as
amicus
curiae
)
[2013] 1 All SA 8
SCA at [11] – [12].
[65]
2005 (1) SA 217 (CC).
[66]
Supra
at par [36].
[67]
Section
23 (1) of the Constitution. The general guarantee of fair
labour practices has far-reaching effects on this court’s
approach to the interpretation of the rights of parties to
employment contracts and includes, for example, and especially, a
right to a hearing before dismissal. See Grogan,
Workplace Law, 7
th
Edition
at pages 12 – 14.
[68]
Section
193 (1) and (2) of the LRA.
[69]
Section
191 (1)(b)(i) of the LRA. See also Workplace Law,
supra
,
at 387 – 389.
[70]
Section
2 of the LRA.
[71]
Schedule
8 to the LRA.
[72]
See Workplace Law, Supra, at p396.
[73]
[2011]
4 All SA 47 (SCA).
[74]
Court
annexed mediation was not on the cards at the time of the launch of
the application, but it strikes me that such a process
would provide
an alternative option to the parties to resolve their differences.