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[2021] ZAGPJHC 435
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Dlamini and Another v Mogale City Local Municipality and Another (32602/2021) [2021] ZAGPJHC 435 (15 July 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 32602/2021
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
3/8/2021
In
the matter between:
LYDIA
DLAMINI
First Applicant
OTHER
OCCUPIERS OF PTN 23 OF THE FARM
RIETVALLEI
[....] L.Q. LISTED IN ANNEXURE “A”
Second Applicants
and
MOGALE
CITY LOCAL MUNICIPALITY
First Respondent
THE
SOUTH AFRICAN POLICE SERVICE
(JOHANNESBURG)
Second Respondent
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
On 9 July 2021, the applicants instituted urgent proceedings in this
court for an order in the following terms:
“
1.
Dispensing with the forms, time periods and service provided for in
the Uniform Rules of Court and directing that this matter
be dealt
with as one of urgency in terms of Rule 6(12)(a);
2.
That the First Respondent is hereby ordered to rebuild all demolished
structures or homes of the Applicants or reasonably compensate
them
for the damages caused by the eviction and
demolishing of
their structures on Tuesday dated 7 July 2021, in light of the
Application for Leave to Appeal under case 23484/2021
which was
served on the First Respondents attorneys on the 1
st
of June 2021, within 48 hours of the grant of this order.
3.
That the First and Second Respondents are hereby interdicted and
restrained from further evicting and demolishing any of the
Applicants structures or homes during the National State of Disaster
in line with Regulation 37(2) of the Disaster Management Act.
4.
That the eviction and demolishing of the Applicants structures or
homes is hereby declared unlawful and unconstitutional.
5.
That the First Respondent has violated the right to dignity and
security of a person of the Applicants by evicting and demolishing
their structures or homes under Level 4 of Lockdown and Covid-19
pandemic.
6.
That the First Respondent by directing the Second Respondent to evict
and demolish the structures and homes of the Applicants
be declared
as a violation of Section 26(3) of the Constitution of the Republic
of South Africa and Covid- 19 Regulations which
arc in place relating
to evictions
.”
[2]
On 15 July 2021, after hearing both parties, this court struck the
matter from the roll for lack of urgency. The reasons are
as follows.
BACKGROUND
[3]
During May 2021, Mogale City Local Municipality (“Mogale City”)
instituted urgent proceedings against the applicant
and other
occupiers of “
PTN 23 of the Farm Rietvallei [....] L.Q.
(“the property”), in which it sought an order,
inter
alia
, ordering the applicants to dismantle structures erected on
the property. On 21 May 2021, the urgent court (Keightley J),
after hearing both parties, granted an order in favour of Mogale City
(“the Keightley order”). The relevant parts of
the order
are paragraphs 3 and 7, and read as follows:
“
3.
Any of the respondents who erected structures from 1
st
of May 2021 is directed to dismantle and/or remove the structures
placed and/or that may have been constructed on Portion 40 of
the
Property and to leave the said Property on or before Wednesday the
26
th
of May 2021 before 14h00;
7.
The security officers contracted by the applicant are authorised to
give effect to this order by preventing any of the respondents
from
breaching the terms thereof;”
[3]
It is common cause, firstly, that the respondents did not comply with
paragraph 3 of the order and, as at 26 May 2021 at 14h00,
they were
in breach of the order; and secondly, that the erected structures of
the applicants were dismantled and removed by the
security officers
instructed by Mogale City on 7 July 2021, in accordance with
paragraph 7 of the order.
URGENCY
[4]
This application is opposed
on various grounds, including the lack of urgency. In
accordance with Rule 6 of the Uniform Rules
of this court, the
applicant is required to set out the reasons why the matter deserves
the urgent intervention of this court and
indicate why they cannot
obtain substantive relief in due course.
[5]
It is trite that urgent relief will be denied in circumstances where
any urgency claimed is self-created and/or where
it is
apparent that the applicant failed to act with the necessary haste in
approaching the court.
[6]
The applicants contend that the application only became urgent after
the demolishing of the structures on 7 July 2021.
The
respondents contend that the urgency is self-created as the
applicants have been aware of the Keightley order since 21 May
2021,
but decided to wait until it was executed before it approached the
court for urgent relief.
[7]
The respondents further contend that it is clear from a letter
written by Mr Madikane from
Lawyers for Black People
, to
Mogale City’s attorneys
,
on 1 June 2021, that the
applicants acknowledged the need to appeal the Keightley order. The
letter reads as follows:
“
Dear
Sirs
We have consulted at
great length with our clients in relation to this matter but their
instructions to us still remain that we
should appeal the order of
the Learned as we hereby do.
It
is a fact that we know that the Municipality intends to build houses
in the area however it is our clients view that the order
was not
just and equitable to the extent where it comes to issues pertaining
to homelessness and destitution in the event of an
eviction if
carried out.
Our
clients’ grounds for appeal are set out in their application
and they contend that the Learned Judge did not pay attention
to
their case as set out in their Answering Affidavit and do hold the
sentiment that a different court will come to a different
conclusion.”
[8]
It is common cause that at the time of the hearing of the matter (15
July 2021) no appeal had been noted against the judgment
and order of
Keightley J.
[9]
The respondents contend that the “
horse has therefore
bolted
”, in that the Keightley order had been executed. In
response the applicants submit that Mogale City acted unlawfully
and
contrary to the court order as the court order does not allow the
removal of the structures. It is submitted that the matter
therefore
remains urgent.
CONCLUSION
[10]
The relief the applicants’ seek in the notice of motion is
based on the premise that there is an application for leave
to appeal
pending against the Keightley order, and the execution thereof was
suspended pending the application for leave to appeal
as envisaged in
section 18(1) of the Superior Courts Act
[1]
.
[11]
When the order was executed on 7 July 2021, there was no application
for leave to appeal filed or noted against the order of
Keightley J,
suspending such order, and Mogale City was entitled to execute the
order.
[12] The order is, at
least in my view, clear. It permitted the respondent to utilize the
security company to give effect to the
order if the applicants are in
breach of the court order.
[13]
The
gravity of the relief sought and the serious consequences which may
flow therefrom is evident from the prayers in the notice
of motion
.
However, the
circumstances
relied upon by the applicants as the basis for the application, have
been present since 21 May 2021 and the application
could have been
moved earlier.
The
matter became urgent because the applicants waited until after the
execution of the court order to approach the court for urgent
relief.
The urgency is, therefore, clearly self-created and due to the
failure on the part of the applicants to approach the court
at an
earlier stage or to file an application for leave to appeal.
[14]
In the result the following order is made:
1. The
application is struck from the roll.
2. Each
party is ordered to pay its own costs.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(Electronically
submitted therefore unsigned)
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
to the parties/their
legal representatives by email and by uploading it to the electronic
file of this matter on CaseLines. The
date for the hand-down is
deemed to be 15 July 2021.
APPEARANCES
Counsel
for applicants:
Advocate
L. Moela
Instructed
by:
Bila Mashamba
Attorneys
Counsel
for first respondent:
Advocate S.K Lekitima
Instructed
by:
Motlatsi Seleke
Incorporated
Date
matter heard:
15 July 2021
Judgment
date:
15 July 2021
Date
of written reasons:
3
August 2021
[1]
Act
10 of 2013