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[2019] ZAGPPHC 354
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Homeless People Housing Co-operative Ltd and Others v Sheriff Kempton Park and Tembisa and Others (24505/2019) [2019] ZAGPPHC 354 (3 July 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No: 24505/2019
3/7/2019
In
the matter between:
HOMELESS
PEOPLE HOUSING CO-OPERATIVE LTD
First Applicant
OCCUPIERS
OF PORTION 8 OF THE FARM
WITKOPPIES
393, EKURHULENI
Second Applicant
OCCUPIERS
OF PORTION 38 OF THE FARM
WITKOPPIES
393, EKURHULENI
Third Applicant
and
THE SHERIFF KEMPTON PARK AND TEMBISA
First Respondent
THE EKURHULENI METROPOLITAN MUNICIPALITY
Second Respondent
THE
MINISTER OF THE SOUTH AFRICAN
POLICE
SERVICES
Third
Respondent
COLONEL RAKGALAKANE, STATION COMMISSIONER
OF SAPS
OLIFANTSFONTEIN
Fourth Respondent
JR 209 INVESTMENTS (PTY)
LTD
Fifth Respondent
IDLEWILD FARM (PTY)
LTD
Sixth
Respondent
IDLEWILD FARMS CC (PTY)
LTD
Seventh
Respondent
LIBERENI 112
CC
Eighth
Respondent
HY-LINE
SOUTH AFRICA (PTY) LTD
Ninth Respondent
MALUWHA
KWEKERY (PTY)
LTD
Tenth Respondent
JUDGMENT
D
S FOURIE, J:
[1]
This is an urgent application in terms whereof the applicants seek an
order:
(a)
Declaring
that the High Court order under case number 24505/2019 on 19 April
2019 and 26 April 2019 respectively, did not constitute
an order for
the eviction of members of the second and third applicants as
required by section 26(3) of the Constitution;
(b)
That
the demolition of structures and/or dwellings by the first respondent
on 16 May 2019 be declared unlawful and invalid;
(c)
That
the first respondent be ordered, jointly and severally with such
other respondents who participated and/or instructed the demolition
of structures, to reconstruct all the structures and/or shacks and/or
dwellings that were demolished on 16 May 2019 by or on the
instruction of the first respondent.
[2]
The fifth to tenth respondents instituted a counterclaim for the
winding-up of the
first applicant and for an order declaring that the
first applicant, as well as a certain S M SONGO, are in contempt of
Court.
There is also a third application by the said respondents for
an order to compel the first applicant to provide security for costs
in terms of Rule 47. The counter- application for winding-up as well
as the application to provide security for costs have both
been
abandoned. I need therefore only to consider the application and the
contempt of Court counter-application.
BACKGROUND
[3]
The first applicant is a non-profit company that was registered
during 2014. As such
the first applicant is a community scheme that
undertakes initiatives to assist historically disadvantaged people to
obtain access
to housing and security of tenure.
[4]
The first applicant is the registered
owner of both Portion 8 and Portion 38 of the Farm Witkoppies 393,
Ekurhuleni. It appears
to be common cause that the first applicant as
landowner was allowing numerous individuals onto its land at its own
prerogative.
[5]
On 19 April 2019 the fifth to tenth
respondents applied for urgent relief before Tuchten J against the
first applicant and the
"unlawful
invaders"
of Portions 8, 10 and
38 of the Farm Witkoppies. The relief sought was premised on the
allegation that a large number of people
were in the process of
demarcating stands whereas the land in question is currently only
zoned for agricultural purposes. On the
same day Tuchten J granted an
order in terms of which the occupants were interdicted from:
"Invading, taking occupation,
demarcating and/or performing any unlawful building/construction on
Portion 10
...
Portion
8
.. .
Portion
38 of the Farm Witkoppies 393, Pretoria, Ekurhuleni.
"
[6]
The occupiers were also interdicted from building or constructing any
dwellings on
the properties. The Sheriff was further expressly
authorised and instructed to demolish and remove any
"unoccupied
structures/dwellings/shacks unlawfully erected at the invaded
properties".
[7]
On 25 April 2019 the Sheriff attended at
the properties to execute the order and all unoccupied dwellings were
demolished. The actions
of the Sheriff in executing this order have
not been challenged.
[8]
On 26 April 2019 the fifth to tenth
respondents filed another urgent application alleging that the first
applicant and
"the unlawful
invaders"
of the land in
question refused to give effect to the order granted by Tuchten J. An
order was sought declaring the first applicant
and SONGO to be in
contempt of the order granted by Tuchten J as well as that the
Sheriff be authorised and instructed
"to
demolish and remove any unoccupied structures/dwellings/shacks
unlawfully erected at the invaded properties".
[9]
On 26 April 2019 Millar AJ granted an order in terms whereof the
first applicant (Homeless
People Housing) was declared to be in
contempt of the order granted by Tuchten J and the Sheriff was
instructed to
"demolish each structure/dwelling erected since
19 April 2019
on
the subject properties".
The
relevant part of the order reads as follows:
"5.
The Sheriff is hereby instructed to forthwith attend on the
subject properties and:
5.1
establish
the precise number of dwellings and structures erected on the subject
properties since 19 April 2019 and allocate
a
number to each such constructed
structure/ dwelling ;
5.2
demolish
each structure/dwelling erected since 19 April 2019 on the subject
properties;
5.3
report
to each of the parties and the Court on the amount of
structures/dwellings that were constructed on the subject properties
as at 19 April 2019 and confirm the precise details
of
the occupants, which must include the
full names and identity numbers of such individuals, if any, of such
dwellings;
5.4
to
the extent that the
structures/dwellings constructed on the subject properties prior to
19 April 2019 are unoccupied, the Sheriff
is instructed to demolish
those structures/dwellings and the respondents reserve their rights
in relation to each decision so taken;
5.5
each
party undertakes to co-operate with the Sheriff in each and every
respect required for the enforcement of this order."
[10]
On 3 May 2019 the Sheriff rendered a return of service in terms of
which he reported,
inter alia,
that he had established the
number of dwellings and structures erected on the subject properties
since 19 April 2019. On 14 May
2019 the parties and their
representatives attended a meeting with the Sheriff. According to a
transcript of this meeting it appears
that:
(a)
The
legal representative of the applicants indicated that
"we
are not disputing the court order
...
(but)
...
we are disputing the fact that we
...
must
accept
a
return
a
service without any factual
documentation or determination
..
.";
(b)
Mr
Songo, a director of the first applicant, suggested that he should
address the people and
"arrange
whether they can move
on
their
own on the 16
th
or
on
the 26
th
. .. ";
(c)
The
Sheriff pointed out that all people who
"were
there since the 19
th
,
and of which the order states that all the shacks and the buildings
that were erected on the 19
th
need to be demolished,
...
can
they vacate the premises themselves
...
".
[11]
It is common cause that on 16 May 2019
the Sheriff attended on the subject properties and demolished all
structures, occupied or
unoccupied, which had been constructed since
19 April 2019. According to the applicants the demolition of occupied
structures was
unlawful as the Sheriff failed to comply with
paragraph 5 of the order granted by Millar AJ and also because there
was no court
order authorising the eviction of a person in occupation
of a structure.
THE MAIN ISSUE
[12]
During argument counsel for the
applicants contended that the main issue between the parties is
whether there was authorisation
for the demolition of occupied
structures on 16 May 2019. If there was none, so he submitted, the
applicants should succeed with
their application. If it were to be
found that the order of Millar AJ authorised the demolition of
occupied structures, then the
application should fail in its
entirety. I agree that the main issue is whether there was
authorisation for the demolition of occupied
structures on 16 May
2019.
[13]
It was submitted by counsel for the
applicants that on a proper interpretation of both court orders it
should be clear that no court
order authorised the demolition of
occupied structures. This, according to him, is apparent from the
order granted by Tuchten J.
He pointed out, with regard to the order
granted by Millar AJ, that the relief sought in that application
(that served before Millar
AJ) was restricted to
"any
unoccupied structures".
It was
also emphasized in the founding affidavit that once such a structure
is occupied as a home, the entire situation changes
in which event,
according to the deponent,
"I
will be obliged to comply with the provisions of the prevention of
Illegal Eviction and Unlawful Occupation of Land Act".
All
of these considerations, so it was submitted, provide a clear
indication that it was never the intention to apply for or to
obtain
an order authorising the demolition of any occupied structures. The
order granted by Millar AJ should therefore be interpreted
accordingly.
[14]
There may be some merit in the argument
that the applicants in the application before Millar AJ (fifth to
tenth respondents in the
application before me) never intended to
apply for an order authorising the demolition of occupied structures.
However, that is
not the issue before me. If Millar AJ erroneously
granted an order which the applicants did not apply for, the
respondents in that
application (applicants now before me) could have
exercised their remedies in terms of Rule 42 for the variation or
rescission
of the order or to apply for leave to appeal, whichever
option may have been applicable. Furthermore, according to the
transcript
of the meeting that was held on 14 May 2019, it was
clearly indicated on behalf of the applicants that
"we
are not disputing the court order".
The
contents of the order granted by Millar AJ is therefore not in issue.
[15]
It is the construction, not the correction, of the order granted by
Millar AJ which is now being
sought. What remains is therefore an
interpretation of that order. Put differently, was there in terms of
this order authorisation
for the demolition of occupied structures on
16 May 2019? As was stated by Froneman J in
Bezuidenhout v
Patensie Sitrus Beherend BK
2001 (2) SA 224
(E) at 2299- D
"an
order
of a
Court of Law stands until set aside by
a
Court
of competent jurisdiction. Until that is done the court order must be
obeyed even if it may be wrong".
[16]
The basic rules for interpreting the judgment or order of a Court are
no different from those
applicable to the construction of documents.
In
Firestone South Africa (Pty) Ltd v Gentiruco
1977
(4) SA 298
(A) at 3040-H Trollip JA gave the following explanation:
"The basic principles applicable
to
construing documents also apply to
the construction of
a
Court's
judgment or order: the Court's intention is to be ascertained
primarily from the language of the judgment or order as construed
according to the usual, well-known rules
...
Thus, as in the case of
a
document, the judgment or order and
the Court's reasons for giving it must be read
as
a
whole in order to ascertain its
intention. If, on such
a
reading,
the meaning
of
the
judgment or order is clear and unambiguous,
no
extrinsic fact or evidence is
admissible to contradict, vary, qualify
or
supplement it. Indeed, it was common
cause that in such
a
case
not even the Court that gave the judgment or order can be asked to
state what its subjective intention was in giving it
...
Of course, different considerations
apply when, not the construction, but the correction of
a
judgment or order is sought by way of
an appeal against it or otherwise
...
but if any uncertainty in meaning
thus emerge the extrinsic circumstances surrounding
or
leading up to the Court granting the
judgment or order may be investigated and regarded in order to
clarify it; for example, if
the meaning of
a
judgment or order granted on appeal
is uncertain, the judgment
or
order
of
the
Court
a
quo
and its reasons therefore, can be used to elucidate it. If, despite
that, the uncertainty still persists, other relevant extrinsic
facts
or
evidence
are admissible to resolve it.
"
[17]
As was pointed out by Trollip JA, the order must be read as a whole
in order to ascertain its
intention. If on such a reading the meaning
of the judgment or order is clear and unambiguous, no extrinsic fact
or evidence is
admissible to contradict, vary, qualify or supplement
it. It is only when uncertainty in meaning emerges, that extrinsic
circumstances
surrounding the granting of the order may be taken into
account in order to clarify it.
[18]
When these principles are applied to the order granted by Millar AJ,
it is clear that the learned
Judge distinguished between dwellings
constructed prior to 19 April 2019 and those constructed since 19
April 2019. The demolition
of dwellings constructed prior to 19 April
2019 is clearly restricted to those dwellings which were unoccupied,
whereas the demolition
of dwellings erected since 19 April 2019 is
unqualified. Paragraph 5.2 of the order clearly states that the
Sheriff must
"demolish
each
structure/dwelling
erected since 19 April 2019".
The word
"each"
refers to every one of two or more structures without any
qualification. In short, it means
all
of them, without
exception. Paragraph 5.3 of the order also refers to the
"occupants"
of those structures. This clearly implies that not only
unoccupied but also occupied dwellings which were erected since 19
April
2019 should be demolished.
[19]
The meaning of the order is therefore clear and unambiguous . No
extrinsic fact or evidence is
admissible to contradict, vary, qualify
or supplement it. That includes a reference to the notice of motion
and founding affidavit
of the application that served before Millar
AJ. Put differently, the order remains the only document to be
considered. I therefore
conclude that the Sheriff was properly
authorised to demolish all structures, occupied or unoccupied, that
were erected since 19
April 2019.
COUNTER-APPLICATIONFOR
CONTEMPT OF COURT
[20]
The notice of motion in the
counter-application contains various prayers. Save for a prayer that
the counter-application be adjudicated
upon as an urgent application,
the other relief sought are as follows:
(a)
That
the respondents (Homeless People Housing Co-operative Limited as
first respondent and S M Songo as second respondent) be held
in
contempt of Court;
(b)
That
the suspension of the fine that forms part of the order issued by
Millar AJ on 26 April 2019 be uplifted;
(c)
That
a further fine of R500 000.00 be imposed on the first respondent as a
result of its persistent contempt of Court;
(d)
That
the second respondent be committed to imprisonment for a period of
six months;
(e)
That
the costs of this application be paid by the respondents, jointly and
severally, on the scale as between attorney and own client.
[21]
It appears not to be in dispute that the
second respondent (S M Songo) has never been formally joined to these
proceedings. He is
merely cited as a respondent. It is also common
cause that the first part of the order granted by Millar AJ
(paragraphs 3 and 4
thereof) in terms whereof the first respondent
was declared to be in contempt of the order granted by Tuchten J, is
now subject
to appeal proceedings.
[22]
During argument counsel for the
applicants in the counter-application indicated that, as the relief
sought in paragraphs 20(b) to
(d) above are now all subject to an
appeal, I should, for the moment,
"ignore
them".
He nevertheless
persisted with the relief sought in paragraph 20(a) above, i.e. that
the respondents in the counter-application
be held in contempt of
Court, and as far as the second respondent (Songo) is concerned, that
he also be held in contempt of the
order granted by Tuchten J.
[23]
The effect of the pending appeal is that
the relief sought in paragraphs 20(b) to (d) will have to be
postponed
sine die.
This
raises the question why should only part of the contempt application
be dealt with in a piecemeal manner where there was not
even a formal
joinder of the second respondent? Furthermore, the outcome of the
pending appeal may affect, not only the relief
sought to be
postponed, but also the relief sought in paragraph 20(a) above
(contempt of Court) in so far as it relates to the
order granted by
Tuchten J. The adjudication of only part of this application may also
create the possibility of piecemeal appeals
in future. Such a
proliferation of proceedings in the same application will not be in
the interests of justice. The determination
of only one issue in
isolation from others is therefore, in these circumstances,
undesirable. For these reasons I am of the view
that the
counter-application should be postponed in its entirety to be heard
by the same judge after the appeal has been finalised.
COSTS
[24]
I have already concluded that the
application cannot succeed. The question arises whether I should
grant an order for the payment
of costs against all the applicants or
only against the first applicant. As was already pointed out above,
the first applicant
is a community scheme that undertakes initiatives
to assist historically disadvantaged people to obtain access to
housing and security
of tenure. It is also not in dispute that the
first applicant as landowner of the property concerned was allowing
numerous individuals
onto its land at its own prerogative. The
deponent on behalf of the first applicant makes it clear that the
ultimate aim of the
first applicant is the provision of housing for
its members.
[25]
This is not a case where the so-called
invaders occupied land belonging to the respondents concerned. They
occupied land which is
the property of the first applicant. The only
reasonable conclusion is that they did so as part of an initiative by
the first applicant
to assist them to obtain access to housing. Under
these circumstances I am not convinced that the occupiers should also
be held
responsible for the payment of costs. It should be pointed
out that the first respondent (Sheriff) abided the decision of the
court
and did not ask for any costs to be awarded in his favour.
ORDER
In
the result I grant the following order:
1.
The
applicants' application is dismissed;
2.
The
first applicant is ordered to pay the costs of the application.
excluding costs of the first respondent (Sheriff);
3.
The
counter- application for contempt of court is postponed
sine
die;
4.
All
costs pertaining to the counter-application are reserved.
D S FOURIE
JUDGE OF THE HIGH COURT, PRETORIA.