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[2019] ZAGPPHC 345
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Interden Management Services (Pty) Ltd and Another v Denneboom Informal Traders and Others (33441/19) [2019] ZAGPPHC 345 (22 July 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 33441/19
22/7/2019
In
the matter between:
INTERDEN
MANAGEMENT SERVICES (PTY) LTD
First Applicant
ISIBONELO
PROPERTY SERVICES (PTY) LTD
Second Applicant
and
DENNEBOOM
INFORMAL TRADERS
ALL
OTHER UNATHORISED PERSONS OCCUPYING
First Respondent
THE
DENNEBOOM TRAIN STATION INTERCHANGE
Second Respondent
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
Third Respondent
JUDGMENT
MTATI
AJ
Introduction
1. The
Applicants brought this matter before Court as one requiring urgent
determination and as such dispensing with forms prescribed by the
Rules and request this Court to direct that it be so enrolled
in
terms of Rule 6(12) of the Uniform Rules.
2. The
relief sought by the Applicants is in terms of
section 18(3)
of the
Superior Courts Act 10 of 2013
pursuant to an order of Vorster AJ
which has formed the basis of an appeal by the 1st Respondents. In
brief, the Applicants seek
an order that the directive given by this
Court on 31 May 2019 should not be suspended despite the service by
the 1st Respondent
of the application for leave to appeal but rather
that it operates and is extant pending the decision of the
application for leave
to appeal or the appeal itself.
3. The
1
st
Respondents sought a condonation for the late filing of their
answering affidavit and there was no objection to this by the
Applicants,
correctly so in my view.
4. The
relevant section (18) upon which this application is premised shall
be dealt with further below but I first deal with a brief background
facts in so far as they find relevance in this application.
Background
5. In
2012, the 1st Applicant concluded a Concession Agreement
(the
agreement)
with the 3
rd
Respondent
(the Municipality)
for
purposes of developing the Tshwane Regional Mall
(the
Mall)
on three identified
properties in Mamelodi. The Municipality owns a number of properties
in the area. The construction of the Mall
was to take place in the
area that was partly used by informal traders and taxi operators. In
order to accommodate the informal
traders and the taxi operators, an
adjacent piece of land was identified to temporarily accommodate
them. This arrangement was
agreed to by all the stakeholders
including the 1
st
Respondents. The temporary relocation arrangement was also contained
in the agreement between the 1
st
Applicant and the Municipality.
6. It
is important to mention at this stage that the relocation was
temporary
because the new development would have also catered for the
Informal Traders
(1
st
Respondents),
taxi
operators, street traders etcetera in terms of the agreement. The 1st
Applicant is obliged in terms of the agreement to give
effect to the
accommodation of the 1
st
Respondents amongst other business entities. The Municipality also
agreed and undertook to cooperate with the 1st Applicant in
ensuring
that the 1st Applicant is provided with vacant possession of the
pieces of land in order to commence with the construction.
7. The
Municipality however did not fulfil its side of the contract as there
has always been informal traders as well as taxi operators when the
construction commenced in April 2015. This is where the problem
leading to this application began as I listened to arguments
supplemented by the papers filed of record. There were approximately
463 informal traders and three taxi ranks with approximately 1069
registered members. A number of meetings were then held with
various
stakeholders about the temporary move to a different site and on 12
December 2016 all parties agreed to relocate. I infer
that a number
of persons moved to the temporary allocated site as a result of the
events that follow.
8. Notwithstanding
the agreement, the Informal Traders refused to move. This
apparently
led to a commotion between the Informal Traders and the taxi
operators/associations who wanted the development of the
Mall to be
completed.
9. On
the 3
rd
of February 2017, an urgent application was brought by the Informal
Traders seeking an order interdicting the Applicants from evicting
them from the site forming part of the dispute to the temporary site.
Such order was granted in favour of the Informal Traders
and on 10
February 2017, the parties were again before court. At this time an
agreement was reached by all involved on the process
of relocating to
the temporary site. This agreement was made an order of court. The
agreement created obligations for all parties
and it is apposite to
record the material part of these obligations as they form part of
the dispute between the parties in this
application.
10.
In respect of the Applicants before me, the court ordered that:
10.1. The Applicants were to
provide containers to those traders who currently occupy fixed
structures, trading
spaces for those who currently occupy informal
structures;
10.2. The Applicants were to
provide ablution facilities, including communal water and electricity
at the temporary
trading facility; and
10.3. The Applicants were to
divert commuters from the Denneboom train station to the transport
facilities, via
the temporary area, within 48 hours after the
informal traders have relocated to the temporary trading area.
11.
In respect of the Informal Traders the court ordered that:
11.1. The Informal Traders
were interdicted and restrained from harassing, intimidating or
assaulting any employees
agents or contractors of the Applicants and
from causing damage to public or private property; and
11.2. The Informal Traders
were ordered to relocate to the allocated trading space at the
temporary trading facility
within 48 hours of being informed by the
Municipality of their allocated containers or trading space.
12.
In respect of the Municipality, the court ordered that:
12.1. The Municipality shall
within seven days of the order, allocate a number to each and every
trader at the
trading facility, differentiating between traders who
occupy fixed structures and traders who occupy informal stalls;
12.2. The Municipality was to
also allocate a corresponding number to a container or trading space,
as the case
may be, at the temporary trading facility; and
12.3. The Municipality was
ordered to inform the traders and their attorneys, in writing, of the
allocation.
13. The
Informal Traders were to provide three names of persons who would
form part of
a committee referred to as Denneboom Facilities
Management Board. This committee would be responsible for
coordination and facilitation
of the smooth transition of the
Informal Traders to the temporary site and address concerns of any
party in relation to the construction
of the Mall and the interests
of the Informal Traders among other parties. As previously mentioned,
it was emphasised on behalf
of the Applicants that the Informal
Traders will be accommodated in the completed Mall and will continue
to trade.
14. It
is this agreement which formed an order of court that appear to be
the basis of
the dispute. The Applicants argue that they have
complied with the order of 10 February 2017 and the 151 Respondent
deny that there
was full compliance with the order.
The
Order of 31 May 2019
15. The
Applicants proceeded with the construction of the Mall until when
they got
to an area occupied by 29 Informal Traders. The number of
these Informal Traders appear to have been received from the legal
representatives
of the 1
st
Respondent. It appears and it was argued before me that the number of
Informal Traders is in fact 170 and not 29. It appears to
me through
argument by Mr Manentsa for the Applicants, that their concern is the
29 traders that form part of this application.
16. The
Applicants were met with resistance to move the 1st Respondents to
the temporary
site. As a result thereof and on 15 May 2019, the
Applicants brought an urgent application to this court seeking an
order that
the 29 Informal Traders cited as the 1
st
Respondents, be directed to vacate the area of the property which
they are occupying. This application also contained a report
from the
Occupational Health and Safety consultants which highlighted risks to
life and limb if the occupied area by the 1
st
Respondents is not vacated. This report was compiled during April
2019. Excerpts from this report provides, among others, as follows:
16.1. The Informal Traders
that are occupying the walkway are exposed to dust as a result of the
construction
activities on site. Due to possible long term exposure,
this can lead to the health of the Informal Traders being affected.
This
entails developing lung diseases and possible fatality years
after the project has been finished and handed over to the end user.
16.2. The stalls that the
Informal Traders have put up are not structurally safe. This is due
to the way they
have been constructed by the Informal Traders.
Affecting these stalls is construction activity taking place in the
construction
site. Heavy machinery such as tipper trucks, TLB's,
Excavators and roller compactors causes vibration in and around the
construction
area. Exposure to the vibrations can lead to stalls
falling leading to injury to the Informal Traders and other members
of the
community passing through this walkway.
16.3. It is proposed that the
Informal Traders be moved to another area in order to avoid the
possible scenarios
which will inevitably lead to severe injuries and
possible fatalities of the Informal Traders and members of the
community. The
urgency of the action is also emphasised in the
report.
17. The
1
st
Respondents opposed the urgent application and denied that the area
they were occupying was unsafe. The Municipality also opposed
the
application although it is not clear to me what formed the basis of
their opposition.
18. Notwithstanding
the opposition by the 1st Respondents and the Municipality, the
court, through Vorster AJ, granted an order directing the Informal
Traders to relocate to a safe place within 48 hours of the granting
of the order. It is this order that forms the foundation of
contestation between the parties. On the 3rd June 2019, the 1
st
Respondents filed an application for leave to appeal the effect of
which the order of 31 May 2019 was suspended. The Applicants
then
filed this application on 7 June 2019 which was heard on 19 June
2019.
Requirements to give effect to an order
of court pending application for leave
19. The
1
st
Respondents have not complied with the order of Vorster AJ and
instead filed an application for leave to appeal his decision. I
do
not deal in this judgment with the application for leave to appeal
but find it necessary to mention the three themes upon which
the
application is founded, namely:
19.1. The Respondents contend
that they consist of 170 traders and not 29. I have already addressed
this concern
by stating that the Applicants seek an order against 29
Informal Traders who were part of the order made on 31 May 2019.
19.2. The 1
st
Respondent further contends that they were spoliated in April 2019
and as such they should not have been ordered to vacate the
area they
are occupying. In response thereto the Applicants argue that the 1
st
Respondents are still occupying the unsafe area and have not been
unlawfully deprived of the area they are occupying. It is for
that
reason that the Applicants applied for an eviction order.
19.3. Lastly, the 1
st
Respondents argue that the Applicants have not complied with the
court order of 10 February 2017. In fact, the 1st Respondents
argue
that they were forcibly removed from the site they were occupying by
taxi owners as well as the employees of the Applicants.
As it appears
in this judgment, the Applicants argue that they have complied with
the order of 10 February 2017. I deal further
with this aspect below
when considering the arguments of both parties.
20. The
effect of the application for leave to appeal is regulated by
section
18
of the
Superior Courts Act 10 of 2013
, the relevant portion
providing as follows:
"18.
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3),
and unless the court under exceptional circumstances orders
otherwise, the operation and execution
of a decision which is the
subject of an application for leave to appeal or of an appeal, is
suspended pending the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the
court under exceptional circumstances orders otherwise, the operation
and execution of a decision
that is an interlocutory order not having
the effect of a final judgment, which is the subject of an
application for leave to appeal
or of an appeal, is not suspended
pending the decision of the application or appeal.
(3)
A court may only order otherwise as
contemplated in subsection (1) or (2), if the party who applied to
the court to order otherwise,
in addition proves on
a
balance of probabilities that he or
she will suffer irreparable harm if the court does not so order and
that the other party will
not suffer irreparable harm if the court so
orders..."
21.
In order for the Applicants
to
be
successful in this application, they should comply with the test as
set out in
lncubeta Holdings (Pty)
Ltd and Another v Ellis and Another
2014 (3) SA 189
(GJ).
The
requirements are formulated as follows:
21.1. Whether or not
'exceptional circumstances' exist; and
21.2. Proof on a balance of
probabilities by the Applicant of-
20.2.1 the
presence of irreparable harm to the Applicant, who wants to put into
operation
and execute the order; and
20.2.2 the
absence of irreparable harm to the Respondent, who seeks leave to
appeal.
22. Exceptional
circumstances have been addressed by Thring J in the case of
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, and Another
2002
(6) SA 150
(CJ
where he
explained as follows:
"What does emerge from the examination
of the authorities, however, seems to me to be the following:
1.
What
is ordinarily contemplated by the words 'exceptional circumstances'
is something out of the ordinary and of an unsusual nature;
something
which is excepted in the sense that the general rule does not apply
to it; something uncommon, rare or different; 'besonder',
'seldsaam',
'uitsonderlik', or 'in hoe mate ongewoon.
2.
To
be exceptional the circumstances concerned must arise out
of,
or be incidental to, the particular
case.
3.
Whether
or not exceptional circumstances exist is not
a
decision which depends upon the
exercise of
a
judicial
discretion: their existence or otherwise is
a
matter of fact which the Court must
decide accordingly.
4.
Depending
on the context in which it is used, the word 'exceptional'
has
two shades of meaning: the primary
meaning is unusual or different; the secondary meaning is markedly
unusual or specially different.
5.
Where
in
a
statute,
it is directed that
a
fixed
rule shall be departed from only under exceptional circumstances,
effect will, generally speaking, best be given to the intention
of
the Legislature by applying
a
strict
rather than
a
liberal
meaning to the phrase, and by carefully examining any circumstance
relied on as allegedly being exceptional."
See
also
University of the Free
State
v Afriforum 2018 (3) 428 SCA
at paragraph [9].
23. I
now proceed to deal with the arguments of both the parties, in
particular, to determine
if the Applicants have met the requirements
tabulated above.
Did Applicants meet the requirements of
section 18?
24.
According to the Applicants, the order of Vorster J was intended to
prevent
the possibility of injury to the Informal Traders and train
commuters that walk past the stalls of the Informal Traders. The 1st
Respondents dispute the fact that the area they occupy is dangerous.
There was however, no report filed by the 1st Respondents
refuting
the report prepared by the independent Occupational Health and Safety
consultants. In fact, this reported was not disputed.
It is important
to note that the dangers elicited in the report are not applicable
only to the Informal Traders but other members
of the public who
normally use the walkway.
25.
It was argued on behalf of the Applicants that section 9 (1) of the
Occupational
Health and Safety Act
(OHSA)
obliges them to ensure, as far
as reasonably practicable, that persons other than those in their
employment who may be directly
affected by the construction, are not
thereby exposed to hazards to their health and safety. The Informal
Traders do not have safety
protective gear. Neither are the members
of the public, passing nor using the walkway, making use of the
safety gear. Failure to
comply with section 9 of the OHSA may attract
punitive consequences for the Applicants.
26.
The 1st Respondents on the other hand deny that the area is unsafe.
They further
dispute the averments made that Verser AJ's order was
premised on the area being unsafe. The 1st Respondents appear to also
suggest
that they are the persons who should decide whether the area
poses health risks on their lives and not the Applicants. I am not
comfortable with this assertion. The Court cannot ignore an
undisputed report that suggest danger to limb and life merely because
of what the 1st Respondents choose to accept as reality. Furthermore,
it is conceded that other members of the public, not party
to this
dispute, may also be affected. I am aware of the contention made on
behalf of the 1st Respondents that the report was not
made under
oath. Notwithstanding, I am of the view that it is preferable to err
on the side of caution than to risk lives of the
1st Respondents and
in particular, members of the public.
27.
The Court cannot sit back and rely on a technical point raised by the
1st Respondents
that the Occupational Health and Safety report was
not furnished under oath. The possible injury that can be suffered,
however
remote, cannot countenanced. There will be irreparable harm
to the Applicants if the provisions of OHSA are not complied with
especially
if injury/ies can eventuate. I accept the report of the
Occupational Health and Safety consultants and I have considered same
in
coming to my conclusions.
28.
The Informal Traders, as mentioned above, will be temporarily
accommodated on
a site that is ready for occupation. It was
specifically stated that the commuter traffic from the trains will be
diverted through
a fence in order to pass by the new temporary
trading area. The court order of 10 February 2017 mentions that this
should be done
by the Applicants within seven days after the
relocation. The argument that the Informal Traders will therefore
lose their customers
cannot stand. According to the Applicants, they
have even renovated three other dilapidated houses nearby for the
occupation and
use by the Informal Traders. These renovations did not
form part of the initial agreement which resulted in the order of 10
February
2017. The temporary relocation is for a period of
approximately four months before the Informal Traders move back to
the Mall.
29.
In reviewing the obligations of each of the parties in terms of the
10 February
2017 order, it seems to me that the primary culprit who
did not comply with her side of the order, is the Municipality. The
question
then before Court is, should the Applicants be frustrated in
progressing and finalising the construction merely because of the
noncompliance by the Municipality? In answering that question it is
important to consider the extent of noncompliance by the Municipality
as is relevant in this application. What the Municipality has still
failed to do is the allocation of numbers to the Informal Traders
it
appears. If that were the case and the concomitant dangers as
surfacing from the Occupational Health and Safety report, such
failure should not stall the temporary relocation of the 1
st
Respondents. I do not find that the 1st Respondents will suffer any
irreparable harm. The Court is convinced that, on a balance
of
probabilities, the Applicants have demonstrated that they will suffer
irreparable harm.
Urgency
30.
The application of the order that is sought to operate by the
Applicants was
granted in an urgent court. It then only makes sense
to me that this application shall also be considered on an urgent
basis. Whilst
the 1st Respondents presented an opposition on their
papers for the application to be considered by way of urgency, there
seemed
to be a concession during argument that the matter is indeed
one of urgency. The Court has already concluded that it accepts the
Health and Safety report and as such, any matter that affects life
and limb are, in my view, to be considered urgently.
Costs
31. In
argument on behalf of the Applicants, it was argued that a cost order
is sought
against the Municipality. It is not clear to me on what
basis such an order is required as the Municipality did not oppose
this
application. At any rate, the Applicants in their notice of
motion claimed an order of costs against any party opposing this
application.
I do not have before me any motivation in the papers to
grant the order as claimed. The Applicants did not ask for a cost
order
against the Informal Traders. The 1st Respondents requested
that the application be dismissed with costs.
32.
After listening to the arguments from both Counsel, I consider the
following
order to be appropriate under the circumstances:
Order
1.
The
matter is enrolled as an urgent application in accordance with the
provisions of Rule 6 (12) of this Court;
2.
The
late filing of the 1
st
Respondent's answering affidavit is
hereby condoned;
3.
It
is directed that the order of Vorster AJ dated 31 May 2019 will
operate and is extant, until the final determination of the 1
st
Respondent's leave to appeal
application and any appeal flowing therefrom; and
4.
Each
party shall bear his/her own costs.
V.T. MTATI AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENGDIVION, PRETORIA
APPEARANCES
APPLICANTS:
B. L. MANENTSA
INSTRUCTED
BY: ADAMS & ADAMS
FOR
THE 1
ST
RESPONDENTS: A. DE VOS SC and D MEYER
HEARD
ON: 19 JUNE 2019
JUDGMENT
DELIVERED ON: 22 JULY 2019
INSTRUCTED
BY: LAWYERS FOR HUMAN RIGHTS