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[2019] ZAECMHC 48
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Hlanekela and Others v Umzimvubu Local Municipality and Another (2858/2019) [2019] ZAECMHC 48 (29 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION - MTHATHA
CASE
NO. :
2858/2019
Heard
on : 20 August 2019
Date
delivered: 29 August 2019
In
the matter between:
MANDLA
HLANEKELA AND 13
OTHERS
Applicants
And
UMZIMVUBU
LOCAL MUNICIPALITY AND
ANOTHER
Respondent
JUDGMENT
MAJIKI
J
[1]
Two urgent applications had been brought against the same
respondent. Both were
before court for argument at the same
time. At the commencement of the hearing it was recorded that,
in the light of the
fact that the issues raised are relatively the
same, the nature of the relief sought is similar both matters should
be heard together.
The matters are in respect of case numbers
2858/2019 and 2859/2019. In both matters all the papers
had been filed,
it was therefore agreed that the hearing should be
for the determination of the final relief.
[2]
In case number 2858/2019 there are fourteen applicants. In case
number 2859/2019
there are eight applicants. The applicants
seek that their eviction from the houses at extension 5 Chitwa
Village be declared
unlawful. Further, that it be ordered that
their possession of the properties be restored. Both
applications are opposed
by the first respondent.
[3]
It is common cause that the applicants were evicted from the
properties that are the
subject of dispute in this mattter, at the
instance of the first respondent.
[4]
Further, the applicants occupied the houses without being allocated
by the first respondent
in accordince with the system it uses
to allocate the houses to indigent beneficiaries. The said
system includes
the process of following the list
compiled on a first come first serve basis and in accordance with
government’s housing
policy.
[5]
It is also common cause that in 2013 the first respondent instituted
eviction proceedings
under case number 2144/2013 against 27 known and
listed occupants and other unknown occupiers. The order was
granted by this
court on 10 September 2015. The names of the
applicants do not appear in the 27 people listed in that court order.
[6]
It is in dispute between the parties as to whether in 2013 the
applicants were already
in occupation of the houses. According
to the applicants they were not. In case number 2859, they say
they occupied
the houses in 2016. In case number 2858 the
applicants say they did so between 2016 and 2017. According to
the respondent,
the applicants occupied the houses in 2013,
accordingly in 2013 they were served with the application papers, the
PIE notice and
eviction order. Their identities were not known,
they fell in the category of other unknown illegal occupants, against
whom
the eviction order was also granted.
[7]
The issue for determination in the matter is whether the applicants
were unlawfully
evicted. This involves a factual enquiry as to
whether they were in occupation of the houses in 2013 and therefore
were included
in the 2015 order; whether they were served with all
relevant documentation thereon as the respondent avers or they were
not as
they aver.
[8]
According to the applicants they all occupied the houses between
after the year 2013.
They were forcefully evicted from their
homes by members of the office of the second respondent who were in
company of members
of South African Police Service and the officials
from the first respondent. The members of the second respondent
carried
some papers which were not handed to the applicants. Instead,
they were shown what was said to be the court order authorising the
eviction. They aver that their investigations about the case
under case number 2144/2013 revealed that none of them appeared
therein. When the proceedings therein were launched in 2013,
none of them were in occupation of the said houses.
[9]
Furthermore, according to the applicants, none of the applicants ever
occupied the
49 houses listed in the application in Case No.
2144/2013. Accordingly, they seek an order that they be
restored of possession
of their homes. They say they, together
with their families who include children had been in peaceful
and undisturbed
possession of the homes until they were unlawfully
evicted.
[10]
The respondents on the other hand aver that the said houses were
allocated to the rightful applicants
and not the respondents.
The respondents occupied the houses illegally since 2013. They
were sued under case number
2144/2013. They were duly served
with section 4(2) of the Prevention of Illegal Eviction Act (PIE Act)
issued on 25 May 2014.
Eventually, they were evicted on the
strength of the order in the judgment delivered on 10 September 2015
in that matter.
Subsequent to that, the applicants broke into
the houses and re-occupied them illegally. The present eviction
is the continuation
of the process of evictions which started in
2015. Attempts to evict them earlier were in vain. The
deponent to the
answering affidavit, the municipal manager of the
first respondent says he knows that the applicant was in occupation
of one of
the houses in 2013. He resisted eviction in 2015.
He does not state which applicant he is referring to. He
referred
to the said applicant as a he, there are a number of male
applicants in the matter. The denial in reply is made by the
deponent
to the founding affidavit. He denied that he was in
occupation of the houses in 2013. He says his name is not in
the
listed respondents in case number 2144/2013. Further, no
return of service has been attached for any of the processes that
it
is alleged were served.
[12]
As regards the fact that the applicants’ names do not appear in
case number 2144/2013 the
respondent avers that it did not know their
names when instituting the proceedings. They were referred to
as other unknown
illegal occupiers of RDP houses in extension 5 Mount
Ayliff.
[13]
The respondent gives account of some of the allocations of the houses
and their occupations as
follows:
House No. 921 was allocated to one
Phizile Mabindisa it is occupied illegally by the first applicant;
House No. 918 was allocated to
Nomabomvana Magocoba;
House No. 916 was allocated to
Priscilla Nyanga. It is illegally occupied by Fikiswa Lambati;
House No. 979 was allocated to Nomazwi
Marry Mtshubungu its illegal occupant is the eleventh applicant;
House No. 973 was allocated to Daweti
Sipunzi its illegal occupant is the sixth applicant;
House No. 966 was not yet allocated,
it is not known as to who claims its return and
House number 1284
was allocated to Jojo Thamsanqa, its illegal occupant is unknown.
[14]
According to the respondent, the applicants are not entitled to the
relief they seek.
[15]
As regards the applicants in case number 2859/2019, they aver that
they realised that houses
were being allocated by the first
respondent to people who had applied for houses after the
said applicants had applied.
This is against the normal
procedure of compiling the lists, which is, on a first come first
serve basis. They admit
that they haphazardly took occupation
of the houses. Since 2015 they have been in peaceful and
undisturbed possession of
the said houses. They were also
evicted on 29 July 2019 in the same manner as the applicants in the
other matter. They
further aver that they all occupied the
houses in 2016.
[16]
The respondent in the said matter denies that there was anything
wrong with its allocation of
the houses. The list of the
identified beneficiaries was annexed as “PGTN2”. No
complaint was legitimately
raised on their allocation process.
There were no complaints even after service of order of 10 September
2015.
[17]
Mr Mdodana, for those applicants submitted that there is no answer to
paragraph 24 of the founding
affidavit. The closer look of the
papers reveals that the founding affidavit omits paragraph 19.
From paragraph 18
it moves to paragraph 20. In answer, the
deponent included paragraph 19, following normal numbering. The
text in the
answers corelate with paragraph 20 of the answer
downwards. The answer referred to as answer to paragraphs 23.1
to 23.4
clearly relate to paragraph 24.1 to 24.4.
Further, the said paragraph is the only paragraph that has
subparagraphs in the
founding affidavit. Also, the answer
referred to as being in relation to paragraph 23.4 is an answer
relating to averment
about a sheriff from another district, which is
an allegation contained in paragraph 23.4 in the founding affidavit.
The
confusion about numbering was started by the applicants.
I make nothing much of it.
[18]
In order to determine whether the applicants would be entitled to
restoration, they are required
to allege and prove that they
were in peaceful and undisturbed possession of the property.
Further, that they were
unlawfully evicted.
[19]
The facts that are central in relation to these requirements are in
dispute. The applicant
averring that since 2015 they were in
undisturbed possession. The respondent on the other hand says
they had been trying
to evict them and the applicants were
resisting. Further, with regard to being unlawfully evicted,
the respondents state
that the applicants were included in the order
of 2015 in case number 2144/2013.
[20]
In motion proceedings seeking a final order, if there is a dispute of
fact, which is material,
the approach as articulated in
Plascon
Evans Paints Ltd v Van Riebeck
Paints Ltd
1984 (3) SA 623
at 634H is
such that the said order may be granted
if those facts averred in the appliants’ affidavits which have
been admitted by the
respondent together with those alleged by the
respondent, justify such a final relief. Otherwise, the matter
is to be determined
on the version of the respondent. The
respondent’s version can only be rejected if it is far fetched
or untenable that
the court is justified in rejecting them merely on
the papers.
[21]
Firstly, I will deal with whether the applicants were served with the
papers, as being
unknown occupants in 2013. The
respondent did not furnish the return of service, which would serve
as proof of service.
The respondent does not state that it is
no longer possible to produce it. Further, the respondent
tabulated the allocations
for occupation, those that were legally
approved and those unlawfully grabbed. The respondent does not
state how and when
service which was effected as intended to be
service on the unknown occupants was made. Were the papers left
at the houses;
was there joint service at a common area? How
was the service resisted? Without this crucial
information to support
that the applicants were served, I would not
be able to find in the respondent’s favour, that the applicants
were served
in 2013 and again with further processes in
2015.
[22]
The aspect of peaceful and undisturbed and unlawful eviction would
have to be determined on the
version of the applicant. I am
therefore unable to find that the eviction was lawful. This is
further complicated by
the fact that the applicants averred that they
were not given eviction papers on 29 July 2019. The respondent
in answer simply
states that the applicants were aware of the
judgment as far back as 2015, they were evicted and came back.
It remains
unanswered as to how the applicants gained knowledge of
eviction procedings, if there is no detailed information about
service
of the order. It is not clear which applicants resisted
by refusing to be evicted or which ones were indeed evicted and came
back.
[23]
The applicant which, because of the answer he gave, I accepted
is the first applicant,
was known. Was he served? did he
resist? was he evicted but came back?.
[24]
The respondent also states that the attempts to evict the applicants
had previously not succeeded.
Again, no details are furnished
as to against which applicants the attempts were made, when and what
transpired. This again
complicates the issues around the
resolution of the issue of when the applicants took occupation of the
houses. If the respondent’s
version is not clear in this
regard, it cannot be concluded that the order in case number
2144/2015 included the applicants.
[25]
Mr Ngumle for the respondents referred me to the matter of
South
African
Informal
Traders Forum v City of Johannesburg
2014 (4) SA 371.
However, that case is not so much on point
with the present one, the removed traders therein had been trading
lawfully.
The interim relief was sought pending the review of
the decisions of the city council, which effectively were removing
them from
their lawful sites. None of the said features are
present in this matter.
[26]
In conclusion, in the light of the lack of the details that
give a full picture of the
respondent’s case, the application
of the principle in
Plascon Evans Paints Ltd
,
supra
would not come to the assistance of the respondents.
[27]
Nothing much was raised with the requirements for a final interdict
except the one about the
existence of a clear right. This
requirement is not necessary to be met herein, as the relief sought
is based on
mandament van spolie
. The applicants
would be successful if they meet the two requirements for
mandament van spolie.
In my view, the applicants have
met the said requirements.
In
the result,
1.
The eviction of the applicants from house
numbers 921, 857, 1291, 916, 715, 973, 788, 918, 613, 979, 712, 934,
1284 and 966 in case
number 2858/2019 and house numbers 1307,
609, 737, 1308, 1225, 1530, 1378 and 1336 in case number 2859/2019
situate at extension
5 Chitwa Village Mount Ayliff by the respondents
is hereby declared unlawful.
2.
The respondents are hereby directed to
return forthwith to the possession of the applicants the houses
mentioned in paragraph
1 of this order.
3.
The first respondent is hereby directed to
pay the costs of the application.
___________________________
B
Majiki
Judge
of the High Court
Counsel
for the applicants : Mr
Ngumle
Instructed
by
: Messrs D Z Dukada and
Company
73
Nelson Mandela Drive
MTHATHA
Mr
Mdodana
Instructed
by
: Messrs S. Diko
Attorneys
c/o
M T Mlola Attorneys
No.
6 Lowry Street
MTHATHA
Counsel
for the respondent: Advocate
Zilwa SC
Instructed
by
: Messrs Fikile
Ntayiya & Associates
No.
67 Wesley Street
MTHATHA