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[2019] ZAKZDHC 35
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Oosthuizen and Others v Ethekwini Municipality and Another (7333/2017) [2019] ZAKZDHC 35 (18 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE NO: 7333/2017
In the matter between:
DEREK
OOSTHUIZEN
FIRST APPLICANT
JONATHAN MICHAEL
GENEVER-STUART
SECOND APPLICANT
ANTHONY
DODDS
THIRD APPLICANT
C.F.K
WESTERGREEN
FOURTH APPLICANT
CELIMPILO
MZULWINI
FIFTH APPLICANT
STEPHEN
FRY
SIXTH APPLICANT
DENNIS
PEAKE
SEVENTH APPLICANT
ANDREW
COTTON
EIGHTH APPLICANT
ROBYN
DUGMORE
NINTH APPLICANT
and
ETHEKWINI
MUNICIPALITY
FIRST
RESPONDENT
SHERIFF OF THE HIGH
COURT:
DURBAN
COASTAL
SECOND RESPONDENT
O R D E
R
1.
The
application is referred for the hearing of oral evidence, at a time
and on a date to be allocated by the registrar, for the
determination
of the following questions:
‘
1.1
Whether the applicants reside at the immovable property described as
Erf 11577 and Remainder of
Erf 11578, Durban, and particularly the
portion thereof known as the Newmarket Lodge, Jaco Jackson Drive,
Durban (Newmarket Lodge);
1.2
Whether the applicants derive their occupation at the aforementioned
property through:
1.2.1
P & D Cleaning Services CC;
1.2.2
Paul Judkins.
1.3
If the answers to the questions in paragraphs 1.1 and 1.2 are in the
affirmative, whether
the order of Moodley J of 16 December 2016
applies to the applicants and consequently whether the first
respondent is entitled
to execute on the order for their eviction
.’
2.
The
evidence shall be that of any witness whom the parties, or either of
them, may elect to call, subject, however to what is provided
in
paragraph 3 below.
3.
Save
in the case of any deponent to any affidavit in the application,
neither party shall be entitled to call any witness unless:
3.1
it has served on other parties at least fifteen (15) days before the
date appointed for
the hearing (in the case of a witness to be called
by the applicants) and at least ten (10) days before such date (in
the case
of a witness to be called by the respondents), a statement
wherein the evidence to be given in chief by such person is set out:
or
3.2
the Court, at the hearing, permits such person to be called despite
the fact that no statement
has been so served in respect of this
evidence.
4.
Any
person may be subpoenaed to give evidence at the hearing, whether
such person has consented to furnish a statement or not;
5.
The fact that a party has served a statement in terms of paragraph 3,
or has
subpoenaed a witness, shall not oblige such party to call the
witness concerned.
6.
The provisions of rule 35, 36, 37 and 37A shall apply at the hearing
of oral
evidence.
7.
The incident of costs incurred to date, which have not already been
determined,
shall be determined by the court hearing oral evidence.
8.
The parties are given leave to approach the Judge President for
preference.
9.
Pending the finalisation of the application the first respondent
undertakes not
to:
9.1
Instruct the second respondent to evict the applicants from the
properties described as
Erf 11577 and Remainder of Erf 11578 Durban,
and particularly the portion thereof known as the Newmarket Lodge,
Jaco Jackson Drive,
Durban (“the Newmarket Lodge”) in
terms of the order granted by her ladyship Madam Justice Moodley on
19 December 2016
under case no. 11842/2015;
9.2
Disconnect the sixth applicant’s water and electricity supply
account number 83601282671
Newmarket Lodge pending the determination
of this application, unless such termination occurs by virtue of the
sixth applicant’s
failure to make payment for any water and/or
electricity supplied by it.
J U D G
M E N T
Henriques J
Introduction
[1]
The present opposed application before me originates from an order of
court granted
on 19 December 2016 under case number 11842/2015 by my
sister Moodley J, wherein the first respondent (the municipality)
sought
to evict occupiers from the properties described as Erf 11577
and Remainder of Erf 11578 Durban (the properties), particularly the
portion known as the Newmarket Lodge. Such consent order was between
the municipality, Newmarket Lodge CC, P & D Cleaning Services
CC
and Paul Judkins (Judkins).
[2]
The applicants instituted these proceedings on 28 June 2017 in which
they sought an
urgent interdict in the form of a rule nisi against
the respondents preventing their eviction from the properties and
disconnecting
their water and electricity supply to the Newmarket
Lodge pending determination of this application.
[3]
The relief sought in the notice of motion, although crafted in the
form of a rule
nisi, is for interim relief pending the final
determination of this application. The second respondent has not
participated in
these proceedings.
[4]
The relief foreshadowed in the notice of motion is the following:
‘
2
That a Rule Nisi do issue calling upon the first respondent to show
cause on ___________
to ________________ 2017 at 09h30 in the
forenoon or so soon thereafter as the matter may be heard, why an
Order should not be
granted in the following terms;
2.1 That
the first respondent be and is hereby interdicted from evicting the
applicants from
the properties described as Erf 11577 and Remainder
of Erf 11578 Durban, and particularly the portion thereof known as
the Newmarket
Lodge, Jaco Jackson Drive, Durban (“the Newmarket
Lodge”) in terms of the Order granted by Her Ladyship Madam
Justice
Moodley on 19 December 2016 under Case No: 11842/2015;
2.2 That
the first respondent be and is hereby interdicted from disconnecting
the water and electricity
supply to the Newmarket Lodge pending the
determination of this application, unless such termination occurs by
virtue of the sixth
applicant’s failure to make payment for any
water and/or electricity supplied by it.
2.3 That
the first respondent be ordered to pay the costs of this application.
3.
That the Orders set out in paragraphs 2.1 and 2.2 shall operate as
interim relief
pending the final determination of the application
.’
[5]
When the matter under case no 7333/2017 served before my brother
Kruger J on 3 July
2017 a consent order was taken by the municipality
and the applicants as follows:
‘
2.
Pending the determination of this application the first respondent
undertakes not to:
2.1 Instruct
the second respondent to evict the applicants from the properties
described as Erf
11577 and Remainder of Erf 11578 Durban, and
particularly the portion thereof known as the Newmarket Lodge, Jaco
Jackson Drive,
Durban (“the Newmarket Lodge”) in terms of
the Order granted by her Ladyship Madam Justice Moodley on 19
December 2016
under Case No: 11842/2015;
2.2 Disconnect
the sixth respondent’s water and electricity supply, account
number 83601282671 Newmarket
Lodge pending the determination of this
application, unless such termination occurs by virtue of the sixth
applicant’s failure
to make payment for any water and/or
electricity supplied by it.
3.
Costs are reserved.’
[6]
The relief sought in the notice of motion was interim relief pending
the final determination
of the application. However, in the
applicants’ heads of argument Mr
Eades
who
appeared, recorded that the interdict is sought until such time as
the municipality has complied with its statutory obligations
in terms
of s 4(2) of the Prevention of Illegal
Eviction
from and Unlawful Occupation of Land Act
[1]
(PIE Act). Even though the heads of argument indicate that the
applicants will seek an amendment to the papers, at the hearing
of
the matter no such amendment was sought and instead Mr
Eades
handed
up a draft order seeking the referral of the matter for the hearing
of oral evidence. The amendment to the notice of motion
is
inconsequential in my view, as the reference in the notice of motion
can only be a reference to the first respondent.
[7]
The municipality opposed the application and the referral for the
hearing of oral
evidence. Ms
Mahabeer
who appeared for the
municipality, indicated that the application ought to be decided on
the papers. Even though the applicants
raised the issue of
non-compliance with the PIE Act, the municipality did not institute a
counter-application for reasons that
will become apparent in the
course of the judgment.
Issues for
determination
[8]
From a reading of the application and the respective heads of
argument, the following
issues require determination namely:
(a)
whether or not there are disputes of fact, which ought to be referred
for the hearing of
oral evidence;
(b)
whether the applicants reside at the properties and occupy the
properties through Newmarket
Lodge CC, P & D Cleaning Services CC
and/or Judkins;
(c)
whether or not the municipality is obliged to comply with the
provisions of the PIE
Act prior to evicting the applicants from the
properties;
(d)
whether the order of 19 December 2016 applies to the applicants and
the municipality is
not obliged to comply with the PIE Act.
(e)
whether Judkins acted as agent for the applicants and was authorised
to consent to the order
of Moodley J; and
(f)
whether in respect of the fifth, sixth and seventh applicants,
although they are commercial
sub-tenants, the order of 19 December
2016 applies to them.
[9]
The municipality
submits
that the applicants are disqualified from obtaining a final interdict
for the following reasons namely:
(a)
the applicants have not established a clear right to an interdict;
(b)
they have an alternative remedy, which lies against Judkins, their
agent, who consented
to the eviction order on their behalf;
(c)
as the applicants are sub-lessees, they share no contractual nexus
with municipality;
and
(d)
the applicants are attempting to subvert a valid and extant order of
court to frustrate
the municipality’s right as owner of the
property.
[10]
The municipality
indicates
that it opposes the referral for oral evidence as on the applicants
version, four occupants including the fifth, sixth
and seventh
applicants are commercial sub-tenants and the municipality
need
not comply with the PIE Act. Consequently, they are subject to the
eviction order and have no right to the relief sought. The
municipality
submits
that the remaining applicants have not advanced any factual basis to
support the contention that they reside on the properties.
In
addition, the fourth and ninth applicants took occupation of the
properties after the grant of the eviction order.
[11]
In addition, the municipality
submits
that the following common cause facts are fatal to any application by
the applicants namely:
(a)
Newmarket Lodge CC initially opposed the eviction order but did not
file an answering affidavit;
(b)
Judkins, at the time of the application, admitted to being in
occupation of the properties
and operating the business of Newmarket
Lodge CC;
(c)
Judkins appeared to have been appointed as the applicants’
agent as he was formally
joined as a party to the eviction
application and consequently consented to the eviction order;
(d)
some of the applicants derive their occupation through Newmarket
Lodge CC and the remainder,
on their own version, through each
other.
Factual matrix
Case No.
11842/2015: Ethekwini Municipality and Newmarket Lodge CC
[12]
The municipality obtained an order on 19 December 2016 under case
number 11842/2015 evicting
P & D Cleaning Services CC, Judkins
and all persons occupying through them from the properties. The
order was obtained
by consent between the municipality, P & D
Cleaning Services CC and Judkins and refers to the portion of the
property known
as Newmarket Lodge, Jaco Jackson Drive, Durban.
It extends to not only P & D Cleaning Services CC and Judkins but
to
all persons occupying.
[13]
When it obtained the order, the municipality did not comply with the
provisions of, inter alia,
s 4(2) of the PIE Act as the properties
were regarded and are regarded as commercial and not residential
properties.
[14]
The municipality
instituted
these proceedings in November 2015 in which it sought the following
relief:
‘
1.
THAT
the
respondent and all persons occupying through it are ordered to vacate
the properties described as Erf 11577 and Remainder of
Erf 11578
Durban, and particularly the portion thereof known as Newmarket
Lodge, Jaco Jackson Drive, Durban, and to deliver vacant
possession
thereof to the applicant within five (5) days of service of this
order upon the respondent.
2.
THAT
in
the event of the respondent or any person occupying through it
failing to vacate the property in accordance with prayer 1 above,
the
sheriff or his deputy is authorised and directed to evict the
respondent, and all persons occupying through it, from the property
referred to in prayer 1 and to deliver vacant possession thereof to
the applicant
.’
[15]
In the founding affidavit the municipality
as
owner of the properties alleged that the respondent, a close
corporation, Newmarket Lodge CC, was in occupation of a portion
of
the properties known as Newmarket Lodge. A diagram showing the
block of land owned by the
municipality
and
depicting
the properties was annexed as “B” to the application
papers. The properties were depicted running along
the left
hand western boundary of the block and the portion of the two
properties occupied by the occupiers were outlined in bold.
[16]
The municipality
alleged
that no agreement of lease existed between the parties and further
that the occupiers had no right to occupy any portion
of its
property. The reason for requiring the eviction of Newmarket
Lodge CC was because the municipality
resolved
to use the property for purposes of establishing an international
sports development centre with a football academy.
Such
decision was published in the press and the requisite Government
Gazette.
[17]
Annexed to the founding affidavit was a notice dated 20 July 2015 to
vacate the property and
same was provided to Newmarket Lodge CC which
was received on its by behalf by Shane Breedt whose signature was
appended to it.
The notice contained the description of the
property as ‘Portion of Newmarket Stables’. A
confirmatory affidavit
by Gregory John McFarland, the chief estates
officer, real estate unit of the municipality
was
also annexed in which he confirmed he personally inspected the
premises known as the Newmarket Lodge which was occupied by Newmarket
Lodge. As Newmarket Lodge CC was a commercial occupant and not
a natural person the provisions of the PIE Act did not apply.
[18]
On 26 January 2016, the Newmarket Lodge CC filed a notice of
intention to oppose the application,
by its attorneys of record G M
Parker Attorneys. In consequence of the notice of opposition
the matter was removed from the
unopposed motion roll for hearing on
1 February 2016 by consent. Subsequent, to the filing of the
notice to oppose, the attorneys
for Newmarket Lodge CC filed a notice
in terms of Uniform rules 35(12) and (13) requiring the municipality
to produce documents for
inspection including but not limited to the Deed of Transfer and
Title Deed for the properties, the written
lease agreement between
the
municipality
and the Thoroughbred
Breeders’ Association and documents relating to the declaration
of the property and the resolution passed
by the municipality
for the property to be
used as an international sports development centre and football
academy.
[19]
The municipality filed
a
response to such notice on 20 April 2016 in which only those
documents mentioned in the founding affidavit were supplied,
including
the Title Deed. Such notice was served on Stirling
attorneys, being Newmarket Lodge CC’s attorneys of record at
the
time.
[20]
Paragraph (b)3 of the Title Deed is germane to that application.
Paragraph (b)3 of the
special conditions of sale read as follows:
‘‘
The land and the
buildings to be erected thereon shall be used for industrial,
manufacturing,
factory, and/or business purposes, the
Town Council retaining the right to approve of the particular class
of business, etc., to
be established on the site, with the right,
however, to the owner to use the said land for the erection of
stables and premises
necessary for the accommodation of persons
employed in connection therewith, and to use the said land for such
other purpose or
purposes as the Town Council may approve, and the
property shall be owned and/or occupied only by a person or persons
of European
descent, but nothing in this condition contained shall be
construed so as to prevent the residence upon and in the lot and/or
buildings
thereon by any Native or Natives, Asiatic or Asiatics who
are the bona fide servants of the owner or occupier for the time
being
.’
[21]
On 23 June 2016, G M Parker Attorneys served a notice of withdrawal
as attorneys of record for
Newmarket Lodge CC and service was
effected on the respondent as being Judkins c/o Newmarket Lodge, Jaco
Jackson Drive, Durban.
It was received on 23 June 2016 at 14h44
by a person with the surname Brown. The last known address was
provided as Newmarket
Lodge, Jaco Jackson Drive, Durban.
[22]
Subsequent to such notice, a notice of set down for 18 August 2016
was served and filed by the
municipality
and
served by the sheriff on a Mrs B Brown, a manager of Newmarket Lodge
CC at Jaco Jackson Drive, Durban on 12 July 2016.
[23]
On 18 August 2016, Lopes J granted an order by consent between the
municipality
and
P & D Cleaning Services CC being the second respondent and
Judkins being the third respondent which made provision for P
& D
Cleaning Services CC to be joined in the proceedings as a second
respondent and Judkins to be joined in the proceedings
as a third
respondent.
[24]
Paragraph 3 of such order read as follows:
‘
That the prayer for relief
sought in the applicant’s notice of motion be amended so that
the word
“
respondent” is replaced
wherever it appears with the words “respondents, alternatively,
first,
second and/or third respondents”
and that the founding affidavit in this application stand as the
founding affidavit in the application
for relief against the second and third respondents
.’
[25]
In addition, time periods were set for the second and third
respondents to file answering affidavits.
The first respondent
was to deliver an answering affidavit or make any such interlocutory
applications as it may be advised on
or before 2 September 2016.
The order recorded that the second and third respondents were
represented by counsel and an attorney
of record.
[26]
A formal notice to oppose was served by the second and third
respondents’ attorneys on
23 August 2016 and similarly pursuant
thereto a notice in terms of rules 35(11), (12) and (13) was filed,
which in the main was
a repetition of the previous notice filed by G
M Parker Attorneys.
[27]
A similar response was filed by the municipality
as
per the previous request. Of relevance to the application was a
request by the second and third respondents’ for
a copy of a
long-term tenancy agreement between the municipality
and the Thoroughbred
Breeders’ Association of South Africa. At that stage
Newmarket Lodge CC was represented by Stirling
Attorneys of Glenwood.
[28]
In response to such request, the municipality
responded
in its notice dated 28 November 2016 as follows:
‘
1.
No reference is made in the founding affidavit to any of the
documents the respondents
have claimed production of, nor has the
applicant made discovery of or given notice that it intends to use
any tape recording or
minute, and Rule 35(11), (12) or (13) do not
oblige or entitle the respondents to their production.
2.
The applicant denies the existence of any long-term tenancy agreement
between
it and the Thoroughbred Breeders’ Association of South
Africa or any tripartite agreement between it, the KZN Provincial
Government and the Liverpool Football Club, and denies that any of
the respondents were parties to any contemplated or inchoate
agreements, but without admission of liability annexed is a copy of a
short-term tenancy agreement between itself and the Thoroughbred
Breeders’ Association of South Africa, which terminated on 28
February 2006.
’
.
[29]
Having regard to the notices filed, sometime early in December 2016
it appears that Stirling
Attorneys were no longer on record for
Newmarket Lodge CC and notices were served by the sheriff directly on
Newmarket Lodge CC.
Pursuant to the notice of set down, the
matter was removed from the opposed motion roll for 21 February 2017,
such notice recording
that the matter had become settled between the
parties. Presumably, it was for this reason that on 19 December
2016 an order
was taken by consent between the municipality
and the second and third
respondents being P & D Cleaning Services CC and Judkins in terms
of which the second and third respondents
and all persons occupying
by and through them were ordered to vacate the properties and in
particular the portion thereof known
as Newmarket Lodge, Jaco Jackson
Drive, Durban.
The present
application: Case No. 7333/17
[30]
On 3 July 2017, the applicants obtained a consent order before Kruger
J on an urgent basis.
[31]
Prior to the institution of the application, the applicants indicated
that they first became
aware of the order of 19 December 2016, when
contacted by the second respondent who indicated they were looking
for Judkins to
execute an eviction order.
[32]
The first applicant obtained the application papers and the order and
handed it to Colyn Townsend
attorneys who responded thereto. The
correspondence exchanged between the applicants’ attorneys
Colyn Townsend
[2]
records
the applicants for whom he acts and indicates that some of the
applicants occupy the premises known as Newmarket
Lodge as residences
and some occupy the Newmarket Lodge as their businesses.
[33]
The letter further records that the applicants do not occupy the
premises through P & D Cleaning
Services CC or Judkins and
consequently are not affected by the order of eviction obtained on 19
December 2016. The correspondence
further records that on 22 July
2015, the attorney acting for Newmarket Lodge CC wrote to the office
of the city manager informing
him that Newmarket Lodge CC was not in
occupation of the premises and that notice had to be served on the
occupiers of Newmarket
Stables (referring to Newmarket Lodge)
personally.
[34]
The attorneys for the applicants also recorded that Judkins who
opposed the application on behalf
of Newmarket Lodge CC and provided
instructions to attorney Graham Parker, was not authorised to
instruct him on their behalf.
The reasons why that was so was
not set out in the correspondence. The letter also recorded
that the applicants occupied
the premises without the express or
tacit consent of the municipality and consequently the applicants
were illegal occupiers or
unlawful occupiers.
[35]
Correspondence was exchanged between the municipality and the
applicants’ attorneys of
record in which an undertaking was
sought that the eviction would not take place pursuant to Moodley J’s
order of 19 December
2016 without 14 days’ notice to the
applicants’ attorneys of record. The municipality in
response indicated that
it was of the view that the order extended to
the applicants and no 14-day notice period would be provided prior to
evicting the
applicants. Presumably, it was for this reason
that the urgent application was instituted.
[36]
The undertaking was extended on various occasions until the matter
served on the opposed motion
roll. Save for the fourth and
ninth applicants, the remainder of the applicants allege that they
have resided at various
units of the Newmarket Lodge prior to the
order of 19 December 2016. The sixth and seventh applicants
trade from the premises
and it appears that the remainder of the
applicants are ‘residents’ of the various units of the
Newmarket Lodge.
[37]
The factual matrix relied on by the applicants in the founding
affidavit can be summarised as
follows:
(a)
the applicants admit that the municipality is the owner of the
property on which Newmarket
Lodge is situated and such property was
originally leased to the Thoroughbred Breeders’ Association and
thereafter sub-let
to various entities;
(b)
Newmarket Lodge CC obtained a sub-lease from the Thoroughbred
Breeders’ Association
and operated a block of commercial
properties from which various enterprises operated. These
entities changed from time to
time and some of the units then became
occupied for residential purposes;
(c)
the lease between the municipality and the Thoroughbred Breeders’
Association
terminated on 28 February 2006 but Newmarket Lodge CC
continued to lease the units to the various tenants, both commercial
and
residential tenants who occupied through the close
corporation;
(d)
on 19 December 2013, the sole member of the close corporation
Clifford Byrom died and the
close corporation ceased any involvement
in and its occupation of the Newmarket Lodge. After the death
of the deceased, the
tenants and subsequent tenants continued their
tenancy of the units at the Newmarket Lodge although there was no
formal structure
through whom the applicants’ derived their
tenancy and the tenants made decisions jointly regarding the
Newmarket Lodge and
would jointly decide if a new tenant could move
into the Newmarket Lodge;
(e)
there is no lease between the applicants and the municipality;
(f)
the applicants had appointed Judkins to represent them in negotiating
a lease with
the municipality, but these negotiations were
unsuccessful;
(g)
on 20 July 2015 the municipality posted a letter to the close
corporation being Newmarket
Lodge CC giving it one-month calendar
notice to vacate the Newmarket Lodge. Such letter was delivered
to Shane Breedt, the
son-in-law of the deceased who instructed the
applicants’ present attorney to respond and advise the
municipality that Newmarket
Lodge CC was no longer in occupation of
the premises;
(h)
the municipality instituted eviction proceedings against Newmarket
Lodge notwithstanding
such letter and sought subsequently in the
eviction application an order evicting Newmarket Lodge CC and all
persons occupying
the premises through it. Such application was
not brought in terms of the PIE Act;
(i)
the eviction application was opposed by Newmarket Lodge CC and the
eviction
application was enrolled on the unopposed motion court roll
on 18 August 2016 when a consent order was taken;
(j)
although Judkins was appointed to negotiate a new lease with the
municipality
he was not authorised to represent any of the applicants
in the application;
(k)
the applicants submit that they did not derive their occupation of
Newmarket Lodge
through either P & D Cleaning Services CC or
Judkins and neither were any of these parties authorised to consent
to the eviction
order;
(l)
the first, second, third, sixth and seventh applicants occupy the
premises through
Newmarket Lodge CC and the remaining applicants
occupied it with the consent of the remaining tenants at the
Newmarket Lodge at
the time; and
(m)
none of the applicants were consulted prior to the eviction order
being taken and even if Judkins
had authority to represent them he
had no mandate to consent to the eviction order.
[38]
According to the applicants they first became aware of the eviction
order when the sixth applicant
was contacted telephonically by the
second respondent being the sheriff’s office indicating that
they were attempting to
locate Judkins to serve an eviction order.
The sheriff was advised that Judkins had vacated the property and
subsequently
the applicants obtained copies of the application
papers. As a consequence, correspondence was addressed to the
municipality
’
s
attorneys dated 3 March 2017 in which the applicants indicated that
some of the applicants occupied the premises known as the
Newmarket
Lodge as their residences and some occupy as their businesses.
[39]
Correspondence was exchanged between the applicants’ attorneys
and the
municipality
’
s
attorneys in relation to identifying who the occupants of the
property were. The applicants’ attorneys took the view
that the occupants did not obtain occupation of the premises through
Newmarket Lodge CC nor through Judkins or P & D Cleaning
Services
and consequently did not have notice of the application for eviction.
This was in addition to the fact that the provisions
of the PIE Act
were not complied with.
[40]
The applicants maintain that they have not had notice of the intended
eviction application nor
has there been compliance with the
provisions of the PIE Act. In addition, they were not joined in
the proceedings in which
the eviction order was granted despite the
fact that the
municipality
knew that the close
corporation was not in occupation of Newmarket Lodge.
The
Answering Affidavit
[41]
The municipality in opposition to the application, indicates that it
has no knowledge of the
history of the applicants’ occupation
of the properties and submits that they have avoided identifying
where precisely on
the properties they are in occupation. In
addition, it submits that the applicants’ occupation is
connected to commercial
activities which they are undertaking on the
property alternatively is through the commercial operations of a
lodge. The municipality
consequently disputes the applicants
occupation is on the subject property, any part thereof and that
their occupation qualifies
as ‘primary residential’.
[42]
The municipality takes issue with the fact that after having
delivered a notice to oppose the
eviction application and having full
knowledge of the eviction proceedings the applicants launched the
present application as a
separate matter. This, it is
submitted, is intended to confuse and obfuscate the issues.
[43]
In summary the municipality opposes the application on the following
grounds:
(a)
the applicants are sub-lessees of a party or parties against whom the
municipality obtained
an eviction order;
(b)
the eviction order was obtained as such parties were commercial
tenants, clearly identified
and who came forward in the proceedings
and consequently the provisions of PIE Act do not apply; and
(c)
the applicants have no right to occupy the properties and therefore
cannot obtain
an interdict as they do not have a clear right.
[44]
In the eviction proceedings which the municipality instituted against
Newmarket Lodge CC in November
2015, on 4 August 2016 by Attorneys T
Giyapersad Inc indicated in correspondence that one Judkins was in
occupation of the property
and that his close corporation P & D
Cleaning Services CC operated on the premises and ran the lodge which
had both business
and everyday lodgers.
[45]
As a consequence thereof these two parties were joined to the
proceedings. It was not disputed
in the eviction application
that no agreement of lease existed between the municipality and those
respondents and that Newmarket
Lodge was no longer active and
consequently those respondents did not have a right to occupy any
portion of the property.
It was for this reason presumably that
in the eviction application those respondents consented to the order
of eviction.
[46]
The municipality submits that on their own version, as sub-lessees,
the applicants’ relief
lies against the lessors namely,
Newmarket Lodge CC together with P & D Cleaning Services CC and
Judkins. Judkins, P
& D Cleaning Services as well as
Newmarket Lodge CC admitted they were in unlawful commercial
occupation of the municipality’s
premises. As a
consequence, the applicants have no locus standi to institute this
application.
[47]
The municipality indicates that apart from being the lawful owner of
the property it is suffering
untold prejudice as it is deprived of
the lawful use and enjoyment of the property more so the use and
enjoyment of the property
is in the public interest as it resolved to
use the property for purposes of establishing an international sports
development centre
with a football academy.
[48]
The applicants have an alternative remedy for damages against
Judkins, his close corporation,
P & D Cleaning Services CC and /
or Newmarket Lodge CC. In addition, the municipality submits
that the applicants could
and should have intervened in the eviction
matter as they had knowledge of same and it was also publicised in
the media. Having
regard to the contents of annexure “E”
which is annexed to the founding affidavit their attorney had always
been aware
of the municipality’s intentions in respect of the
property and written to the municipal manager on the applicants’
behalf. It is for these reasons it submits, the applicants are
deliberately seeking to frustrate the execution of the eviction
order
by waiting until after the grant of the eviction order.
Analysis
[49]
It is against this factual background as evidenced in the two
applications, that the issues must
be determined. The crux of
the matter is when, how and through whom the applicants came to
occupy the properties. Having
regard to the factual background
referred to hereinbefore, the following is clear.
[50]
The municipality is the owner of the immovable property upon which
Newmarket Lodge and Newmarket
Lodge CC are to be found. The
property was initially leased by the municipality to the Thoroughbred
Breeders’ Association
from whom Newmarket Lodge CC obtained a
sub-lease. When the lease between the municipality and the
Thoroughbred Breeders’
Association terminated on 28 February
2006, so too did the sub-lease with Newmarket Lodge CC terminate.
What is not evident from
the affidavits filed is whether Newmarket
Lodge CC, Newmarket Lodge and New Market Stables is one and the same
entity.
[51]
After the death of the sole member of Newmarket Lodge CC, certain
tenants continued with their tenancy
of the units and jointly made
decisions as to whom could occupy the premises. Because the situation
was becoming untenable, the
applicants appointed Judkins to represent
them in negotiating a lease with the municipality. What is clear is
that the sub-lease
which Newmarket Lodge CC had concluded related to
a block of commercial properties from which various enterprises
operated. Annexure
“B” which is the diagram of the
properties in respect of which the eviction order was granted
reflects those portions
of land occupied by the applicants.
[3]
[52]
In the founding affidavit there is a concession from certain of the
applicants and from the documents
annexed by the applicants’
attorneys as to who the occupants were and the period from which they
occupied the premises.
[4]
The applicants indicate that Newmarket Lodge CC, after the
termination of the lease between the municipality and the
Thoroughbred
Breeders’ Association, continued to lease the
units to various tenants both commercial and residential which
tenants occupy
through Newmarket Lodge CC.
[53]
In addition, the applicants aver that after Newmarket Lodge CC ceased
to exist, further tenants
obtained occupation through existing
tenants. The draft order prayed handed up by counsel on 8
November 2018 requests that
the matter be referred for the hearing of
oral evidence to determine whether the applicants reside at the
immovable property described
as Erf 11577 and Remainder of Erf 11578
Durban, particularly the portion known as Newmarket Lodge and whether
the applicants derive
their occupation through P & D Cleaning
Services CC and Judkins.
[54]
I entertain strong suspicions that Newmarket Lodge CC and Newmarket
Lodge is one and the same entity
and that Newmarket Lodge merely
refers to the business and operations done by Newmarket Lodge CC
being the close corporation.
[55]
The applicants concede that even after the death of the sole member
of the CC the tenants continued
their tenancy of the units at
Newmarket Lodge. There is thus a strong suspicion that despite
the averments made in the founding
affidavits the applicants obtained
their occupation of Newmarket Lodge through Newmarket Lodge CC who
despite the termination of
the lease continued to lease the units to
tenants. In addition, the applicants indicate that after
Newmarket Lodge CC ceased
to exist, new tenants obtained
occupation through existing tenants.
[56]
At the hearing of the matter, I pertinently raised with Mr
Eades
the issue of how and through whom the applicants came to be in
occupation of the property. He did not provide a direct answer
to this question although it was repeated and he responded by
referring me to portions of the affidavits and reiterated that the
applicants were in de facto occupation of the premises.
[57]
Mr
Eades,
was constrained to concede that the applicants do
not specify from whom they derive their occupation. What he stressed
was the
fact that the applicants are in de facto occupation of the
area known as Newmarket Lodge and why else would they appoint Judkins
to represent them in negotiating a lease with the municipality
[58]
The applicants are being disingenuous, in my view, in saying that
they do not know what became of the
negotiations. It is rather
convenient for them to say Judkins was only authorised to negotiate
an extension of the lease
and that is where his mandate ended.
[59]
Although I suspect that they derived their occupation from Judkins
and appointed Judkins to act as
their agent in negotiating a lease
with the
municipality
and accordingly they
ought to be estopped from denying he had no authority to act on their
behalf when consenting to the order,
the papers simply do not go that
far for this court to make that conclusion as a matter of fact.
[60]
A further issue taken by the applicants is the fact that there was
non-compliance with the PIE Act.
On their version, the applicants
obtained occupation of the premises through Newmarket Lodge CC and
thereafter they occupied at
the behest of Judkins. Certain of
the applicants on their own admission are commercial occupants and
some of them occupied
the premises post the order of 19 December 2016
and more importantly could not in my view, have obtained occupation
of the premises
through existing tenants.
[61]
It is also extremely ironic of the applicants’ attorney of
record (Colyn Townsend) who indicated
that he previously acted for
Newmarket Lodge CC to now say that Judkins had no authority to
instruct Graham Parker. He would know
the basis upon which the
applicants obtained their occupation and consequently in my view his
bona fides in acting for them under
these circumstances certainly
raises questions.
[62]
Be that as it may, although I am of the view that there is also no
merit in the submission of the applicants
that the municipality was
required to obtain an order as against Newmarket Lodge CC such
finding cannot be made conclusively on
the papers before me.
Similarly, I suspect that the entity which ran Newmarket Lodge was
Newmarket Lodge CC.
The member of Newmarket Lodge CC was
deceased and on the applicants own version they did not continue to
operate the Newmarket
Lodge. This Judkins did.
Consequently, he would have been quite entitled to agree to the order
for the eviction of
P
& D Cleaning Services CC and himself
.
There would have been no need for the municipality to obtain an order
as against Newmarket Lodge CC as same was not in occupation
of the
property.
[63]
The
applicants confirm that they instructed Judkins to negotiate the new
lease with the municipality. However, they go no
further in
explaining what became of those negotiations. It can be safely
accepted in the circumstances that these negotiations
were
unsuccessful and no lease agreement was concluded between the
applicants and the municipality. The applicants’
reliance
on the PIE Act to defeat the court order is in my view ingenious and
has bought them time to remain in further occupation
of the
premises.
[64]
It must be borne in mind that according to the applicants they are
sub-lessees though they do
not disclose exactly how and in what
circumstances they came to be in occupation of the municipality
’
s
property. This is the crux of the issue to determine namely,
whether they are bound by the order of Moodley J.
[65]
I am of the view they are not being entirely honest with the court as
to when they also became
aware of Moodley J’s order and it
could not only have been in March 2017. They elect not to
disclose exactly when they
became aware of the court order.
However, on 3 March 2017 the letter from their attorneys to the
municipality
appears
to be the first time they allege that the consent order is not
binding on them.
[66]
It is common cause that the municipality
seeks
to evict the applicants from the properties in terms of the consent
order taken before Moodley J. Such order on the face of
it related to
Newmarket Lodge CC, P & D Cleaning Services CC and Judkins, with
the applicants submitting that they were not
parties to such consent
order.
[67]
It is common cause that at the time such consent order was taken, the
municipality
did
not comply with the provisions of the PIE Act . The reason for
this is obvious - given that the property was a commercial
property
there would not be any need to comply with the Act. The
applicants submit that the
de
facto
position is that they presently reside at the properties and seek to
interdict the municipality
from
evicting them in terms of the consent order until such time as it has
complied with its statutory obligations, namely s 4(2)
of the Act.
[68]
The provisions of the PIE Act are peremptory and
the landowner is required to comply with the provisions
of such Act
specifically s 4(2) in circumstances where occupiers reside at the
property in question.
[5]
Mr
Eades
is quite correct in his submission that if the applicants can show
that they reside at the immovable property and/or did not derive
their occupation through any of the parties to the consent order, the
municipality
ought
not to be allowed to evict them without a court order.
[69]
The municipality
disputes
that the applicants reside at the properties and indirectly submits
that the applicants derive their occupation through
the parties to
the consent order. In addition, the municipality submits that the
eviction order was consented to by a party who
at the time purported
to represent the applicants, but whom the applicants now indicate had
no authority to do so.
[70]
In addition, the
municipality
contends that the
applicants are disqualified from obtaining a final interdict as they
have established no clear right to an interdict
[6]
in that they have an alternative remedy against Judkins, their agent,
who consented to the eviction order on their behalf.
[71]
The
municipality
further contends that the
applicants are sub-lessees who share no contractual nexus with the
municipality
and that this application
is an attempt to subvert a valid court order aimed at frustrating the
municipality’s
rights as owner of the
property.
[72]
What then is the appropriate order given the prevailing
circumstances? Uniform rule 6(5)(g) reads
as follows:
‘
Where an
application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just and expeditious decision. In
particular, but without affecting the generality of the aforegoing,
it may direct that oral evidence be heard on specified issues with a
view to resolving any dispute of fact and to that end may
order any
deponent to appear personally or grant leave for such deponent or any
other person to be subpoenaed to appear and be
examined and
cross-examined as a witness or it may refer the matter to trial with
appropriate directions as to pleadings or definition
of issues, or
otherwise
.’
[73]
This sub-rule sets out three options which a court can follow,
namely, to dismiss the application,
to refer the matter for the
hearing of oral evidence and to refer the matter to trial. In
Erasmus
Superior Court Practice
[7]
the authors take the view that oral evidence in terms of the sub-rule
should be allowed if there are reasonable grounds for doubting
the
correctness of the applicants’ allegations. The court
must decide if the alleged dispute of fact cannot be satisfactorily
determined without hearing oral evidence.
[74]
In deciding to refer a matter for the hearing of oral evidence a
court has a wide discretion.
[8]
The authors also opine that a court must take ‘a robust,
common-sense approach’ to a dispute in motion court proceedings
and not hesitate to decide an issue on affidavit merely because it
may be difficult to do so.
[9]
This approach must, however, be adopted with caution and the court
should not be tempted to settle disputes of fact solely
on the
probabilities emerging from the affidavits without giving due
consideration to the advantages of viva voce evidence.
[75]
In
Minister
of Environmental Affairs and Tourism & another v Scenematic
Fourteen (Pty ) Ltd
[10]
Scott JA at para 29 cited with approval the decisions in
Khumalo
v Director- General of Co-operation and Development & others
and
Moosa
Bros & Sons (Pty) Ltd v Rajah
regarding the approach to be adopted in applications to hear oral
evidence in terms of rule 6(5)(
g)
.
The court held the following:
‘
In
Khumalo
v Director-General of Co-operation and Development and Others
[1990] ZASCA 118
;
1991 (1) SA 158
(A) at 167G – 168A the Court cited with
approval the conclusions of Kumleben J in
Moosa
Bros & Sons (Pty) Ltd v Rajah
1975 (4) SA 87
(D) at 93E – H regarding the approach to be
adopted in applications to hear oral evidence in terms of Rule
6(5)(
g
).
The passage is worthy of repetition:
“
(
a
)
As a matter of interpretation, there is nothing in the language of
Rule 6(5)(
g
)
which restricts the discretionary power of the Court to order the
cross-examination of a deponent to cases in which a dispute
of fact
is shown to exist.
(
b
)
The illustrations of “genuine” disputes of fact given in
the
Room Hire
case at 1163 do not – and did not purport
to – set out the circumstances in which
cross-examination
under the relevant Transvaal Rule of Court could be authorised.
They
a fortiori
do not determine the circumstances in which
such relief should be granted in terms of the present Rule 6(5)(
g
).
(
c
)
Without attempting to lay down any precise rule, which may have the
effect of limiting
the wide discretion implicit in this Rule, in my
view oral evidence in one or other form envisaged by the Rule should
be allowed
if there are reasonable grounds for doubting the
correctness of the allegations concerned.
(
d
)
In reaching a decision in this regard, facts peculiarly within the
knowledge of an applicant,
which for that reason cannot be directly
contradicted or refuted by the opposite party, are to be carefully
scrutinised
.”’
[76]
The authors of
Erasmus
further state that if there is a factual dispute the function of the
court is to select the most suitable method of employing vive
voce
evidence for the determination of the dispute.
[11]
Here reference is made to
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[12]
and
Standard
Bank of SA Ltd v Neugarten.
[13]
[77]
I have strong suspicions that the applicants obtained their occupancy
from the Newmarket Lodge
CC and Judkins. However, given the
manner in which the affidavits have been filed, suspicions are not
enough to decide this
matter. It is a matter in which only a
court hearing oral evidence can make that determination. Once the
applicants testify
they can indicate how and when and through whom
they came into occupation of the premises. In addition, the
hearing of oral
evidence will resolve exactly where on the properties
the applicants reside.
[78]
In respect of those applicants who indicate that they are commercial
occupants, no notice need
be given in terms of the PIE Act.
However, a problem which arises is that one does not know through
whom and how they came
to be in occupation of the premises especially
as they deny such occupation was derived from Newmarket Lodge CC,
Judkins and P
& D Cleaning Services. Therefore, in relation
to them, although the municipality
is
in possession of a court order, one cannot determine without the
hearing of oral evidence through whom they derive their occupation
and whether Moodley J’s order applies to them.
Costs
[79]
Given that the matter is being referred for the hearing of oral
evidence it is appropriate that
such court determine the aspect of
costs.
Conclusion
[80]
For record purposes it is necessary to record that the
municipality
filed an application for
condonation in respect of the late delivery of its heads of
arguments. This was a precautionary measure
taken by the
municipality
to enable it to record
its apology to the court and explain the reasons for delay. As the
respective parties counsel had communicated
with each other, and the
applicants indicated they had no objection to the late delivery of
the municipality’s heads of argument
and did not require a
formal application to be brought, nothing further need be said in
this regard.
[81]
In the result the following orders will issue:
1.
The application is referred for the hearing of oral evidence, at a
time and on
a date to be allocated by the registrar, for the
determination of the following questions:
‘
1.1
Whether the applicants reside at the immovable property described as
Erf 11577 and Remainder of
Erf 11578, Durban, and particularly the
portion thereof known as the Newmarket Lodge, Jaco Jackson Drive,
Durban (Newmarket Lodge);
1.2
Whether the applicants derive their occupation at the aforementioned
property through:
1.2.1
P & D Cleaning Services CC;
1.2.2 Paul Judkins.
1.3
If the answers to the questions in paragraphs 1.1 and 1.2 are in the
affirmative, whether
the order of Moodley J of 16 December 2016
applies to the applicants and consequently whether the first
respondent is entitled
to execute on the order for their eviction
.’
2.
The evidence shall be that of any witness whom the parties, or either
of them,
may elect to call, subject, however to what is provided in
paragraph 3 below.
3.
Save in the case of any deponent to any affidavit in the application,
neither
party shall be entitled to call any witness unless:
3.1
it has served on other parties at least fifteen (15) days before the
date appointed for
the hearing (in the case of a witness to be called
by the applicants) and at least ten (10) days before such date (in
the case
of a witness to be called by the respondents), a statement
wherein the evidence to be given in chief by such person is set out:
or
3.2
the Court, at the hearing, permits such person to be called despite
the fact that no statement
has been so served in respect of this
evidence.
4.
Any person may be subpoenaed to give evidence at the hearing, whether
such person
has consented to furnish a statement or not;
5.
The fact that a party has served a statement in terms of paragraph 3,
or has
subpoenaed a witness, shall not oblige such party to call the
witness concerned.
6.
The provisions of rule 35, 36, 37 and 37A shall apply at the hearing
of oral
evidence.
7.
The incident of costs incurred to date, which have not already been
determined,
shall be determined by the court hearing oral evidence.
8.
The parties are given leave to approach the Judge President for
preference.
9.
Pending the finalisation of the application the first respondent
undertakes not
to:
9.1
Instruct the second respondent to evict the applicants from the
properties described as
Erf 11577 and Remainder of Erf 11578 Durban,
and particularly the portion thereof known as the Newmarket Lodge,
Jaco Jackson Drive,
Durban (“the Newmarket Lodge”) in
terms of the order granted by her ladyship Madam Justice Moodley on
19 December 2016
under case no. 11842/2015;
9.2
Disconnect the sixth applicant’s water and electricity supply
account number 83601282671
Newmarket Lodge pending the determination
of this application, unless such termination occurs by virtue of the
sixth applicant’s
failure to make payment for any water and/or
electricity supplied by it.
Henriques
J
CASE
INFORMATION
APPEARANCES
Counsel for the
plaintiff
:
Mr D. W
Eades
Instructed
by
: Colyn
Townsend Attorney
Ref: GEN1/0004/2017
Tel: (031) 765 7507
Email:
colyntownsend@telkomsa.net
Counsel for the
respondent
:
Ms S Mahabeer
Instructed by
: Berkowitz Cohen
Wartski Attorneys
Ref: E
Sibiya/tcn/52E336431
Tel: (031) 314 9300
Email:
esibiya@berklaw.co.za
Date of Hearing
: 8
November 2018
Date of Judgment
: 18
November 2019
[1]
19 of 1998.
[2]
Annexure “E” page 39 of
the indexed papers, a letter dated 3 March 2017.
[3]
Annexure “B” page 13 of
the application papers in case no 11842/2015.
[4]
Annexure “G” pages 43 and
44 of the indexed papers.
[5]
Cape Killarney Property
Investments (Pty) Ltd v Mahamba & others
2001 (4) SA 1222
(SCA) para 11.
[6]
As envisaged in
Setlegelo
v
Setlegelo
1914
AD 221
at 227.
[7]
Erasmus
Superior Court Practice
at
RS 9, 2019, D1-72.
[8]
Lombaard v Droprop CC
2010 (5) SA 1
(SCA) at 10A-D.
[9]
Erasmus
Superior Court Practice
at
RS 7, 2018, D1-74.
[10]
Minister of
Environmental Affairs and Tourism & another v Scenematic
Fourteen (Pty) Ltd
2005
(6) SA 182 (SCA).
[11]
Erasmus
Superior Court Practice
at
RS 5, 2017, D1-77.
[12]
Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1162.
[13]
Standard Bank
of SA Ltd v Neugarten
1987
(3) SA 695
(W) at 699D.