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[2018] ZAGPPHC 714
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Ramadwa v Kokodi (A443/2016) [2018] ZAGPPHC 714 (15 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION PRETORIA)
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER
JUDGES
(3)
REVISED
Case No: A 443/2016
15/3/2018
In
the matter of:
Ndivhuho
Ramadwa
Appellant
and
Mohlanyana
Ellah
Kokodi
Respondent
JUDGMENT
Coram:
Maumela
and Kubushi JJ.
INTRODUCTION
1.
This is an appeal against the final
order granted by the magistrate for the District of Atteridgeville
held at Atteridgeville Pretoria,
the court a
quo.
Before the court a
quo
the respondent was the complainant
and the appellant the respondent. The court a
quo
granted a
rule
nisi
against the appellant which was
returnable on 3 May 2016. On 7 June 2016 the
rule
nisi
was confirmed. A protection
order was granted against the appellant, which has the effect of
evicting the appellant from stand number
JV7301. The appellant seeks
to set that part of the order aside.
2.
The appeal is unopposed and there was no
appearance on behalf of the respondent at the hearing of the appeal.
The appellant's heads
of argument were filed eleven days before the
hearing of the appeal instead of fifteen days. The application for
condonation for
such late filing as applied for by the appellant's
counsel was granted.
3.
The court a
quo
granted an order for the eviction of
the appellant in circumstances where the relief sought by the
applicant was in accordance with
the provisions of the Protection
from Harassment Act 17 of 2011 ("the Harassment Act").
4.
The evidence that served before the
court a
quo
and
which forms part of the record before this court consists of the
application form submitted by the respondent in terms of section
2
(1) of the Harassment Act as contained in Annexure "I"
attached to the record; the evidence adduced by the respondent
and
her witness Mafodi Thomas Maroko (Thomas); the judgment of the
presiding magistrate and the resultant order made by the court
a
quo.
5.
The record of proceedings before the
court a
quo
is
laden with gaps. The appellant tried to fill these gaps in his heads
of argument. But this is of no assistance, as heads of argument
do
not form part of the record and what is stated therein cannot be
regarded as evidence for purposes of the appeal. Only evidence
adduced at the trial forms part of the record and stands to be
considered by the appeal court. On the basis of the decision this
court comes to, the court is prepared to proceed with the appeal on
the record as it stands. The view is that the record of proceedings
is adequate for consideration of the appeal.
BACKGROUND
6.
From the record it is evident that only
the respondent and her witness, Thomas, testified before the court a
quo.
The
factual background to this matter can be gleaned from the evidence of
Thomas. Thomas is the owner of the piece of land, stand
number
JV7301, on which the premises in question are situated. At the time
of testifying he did not reside on the land. He ran
away to the
homeland in 2008 when his place caught fire and the community
attacked him. The appellant was a tenant on the land
and Thomas left
her in charge when he fled. According to Thomas the respondent was
previously a tenant on the premises for four
years but in 2004 he
moved out and Thomas rented the premises to a next-door neighbour.
The appellant returned to the premises
after the community attacked
Thomas.
7.
It is not evident from the record why
the appellant and the respondent were at loggerheads. It, however,
appears that on 24 March
2016 the respondent applied for a protection
order against the appellant in terms of section 2 (1) of the
Harassment Act. The Harassment
Act requires the complainant
(respondent herein) to complete a Form (Form 2) setting out her
complaint which form is then lodged
with the clerk of the court. The
full details of the incidents of harassment the respondent complained
about are stated in that
Form as:
" He fired me on the toilet and that
toilet I got shares, and I built my toilet, Tebogo [the appellant]
also use my toilet,
when I
am
talking he promise me to kill me. One
day he plough (patse) in the yard. He said I am the boss in this
yard. This year January he
promise to hit me. And he switch the Radio
on the whole day and night it play music loudly."
[Sic!]
In the same Form the respondent requested the
court
a quo
to stop the appellant from harassing her.
8.
Pursuant to such an application the
respondent was granted an
interim
protection order which entailed a
rule nisi
returnable
on 3 May 2016. In terms of the interim protection order the appellant
was prohibited by the court
a quo
from engaging in or attempting to
engage in the harassment of the respondent and/or committing any of
the acts stated in section
7 of the application (harassment). The
interim protection order was served on the appellant on 31 March 2016
and he appeared in
the court a
quo
on
6 June 2016. It is not clear from the record what transpired between
3 May 2016 and 6 June 2016. As already stated, at the inquiry,
only
the respondent and Thomas gave evidence. The respondent was not
afforded an opportunity to present his side of the story.
He was
asked a few questions only, some of which he was not even allowed to
respond to. At the end of the inquiry the court a
quo
ruled in the respondent's favour and
confirmed the
rule nisi.
The
appellant noted an appeal against that judgment.
THE JUDGMENT OF THE COURT A
QUO
9.
In addition to the terms set out in the
interim protection order, the court a
quo
imposed further conditions that were
necessary to protect and to provide for the safety and well-being of
the respondent as follows:
"Do not assault or threaten with
violence, do not swear at Applicant. The respondent has until the
30
th
of June 2016 to leave stand number JV7301, failing
which applicant may fetch a warrant of arrest for execution thereof
by SAPS
for failing to comply with the court order."
GROUNDS OF APPEAL
10.
The appellant's grounds of appeal are
succinctly summarised in his heads of argument as follows:
10.1
Right of fair hearing
10.2
Arbitrariness of the eviction order;
10.3
Wrong application of the law;
10.4
Suitable alternative accommodation; and
10.5
Failure to balance the rights of the
parties.
11.
Before this court, only two grounds were
argued, namely the failure by the court
a
quo
to afford the appellant the
right of hearing; and the application of the wrong law by the court
a
quo.
In essence what is appealed is
the eviction part of the court
a
quo's judgment, the harassment part
thereof is not in issue.
THE ISSUE
12.
The protection order granted by the
court a
quo
has
the effect of evicting the appellant from the premises. This court is
to determine whether or not the court a
quo
was correct in granting the eviction
order against the appellant.
The Right of Fair Hearing
13.
The submission on behalf of the
appellant is that the court a
quo
erred in not affording the appellant
an opportunity to present his case and/or an opportunity to answer to
any of the allegations
levelled against him.
14.
In the case of
De
Beer NO v North Central Local Council and Others,
[1]
the court stated the following:
" The right to fair hearing before
a
court lies at the heart of the rule
of law.
A
fair
hearing before
a
court
has as
a
prerequisite
to an order being made against anyone is fundamental to
a
credible legal order. Courts in our
country are obliged to ensure that the proceedings before them are
always fair. Since procedures
that would render the hearing unfair
are inconsistent with the Constitution. The courts must interpret
legislation and rules of
court, where it is reasonably possible to do
so in ways that would render the proceedings fair. It is
a
crucial aspect of the rule of law
that court orders should not be made without affording the other side
a reasonable opportunity
to present their case."
15.
In
Hlope
v Constitutional Court of South Africa and Others,
[2]
the court reiterated on the right of
parties to be heard in court. In that regard the court stated as
follows:
"The foundation of the right to be
heard is not only constitutional; it is also anchored in the common
law principle of audi
alteram partem that recognises as part of the
rules of natural justice the right of every person to be consulted or
heard before
a
decision
or step is taken that affects or may affect such person."
16.
It is quite obvious that the record does
not reflect any instance where the appellant is engaged on the
allegations levelled against
him by the respondent (complainant). The
appellant challenged the application by making an appearance in court
on the day of the
proceedings. He attempted to place his version on
record but that was thwarted by the threatening interjections of the
court. The
appellant was only asked questions by the court
a
quo.
He was not even given a chance
to respond to some of them. As such the appellant was denied the
right to be heard which, is a fundamental
requirement of
constitutionalism and justice. The court a
quo
having acted as it did, it
misdirected itself, which calls for interference by this court.
Actually, on this ground alone the appeal
ought to be upheld.
Wrong Application of the Law
17.
The Harassment Act was enacted to
provide for the issuing of protection orders against harassment and
in order to afford victims
of harassment an effective remedy against
such behaviour. Such remedy is encapsulated in section 10 of the
Harassment Act (for
purposes of this matter, section 10 (1) thereof).
Section 10 (1) of the Act provides that -
(1)
The
court may, by means of a protection order, including an interim
protection order, prohibit the respondent from
-
(a)
engaging in or attempting to
engage in harassment;
(b)
enlisting the help of another
person to engage in the harassment; or
(c)
committing any other act as
specified in the protection order.
18.
Section 10 (5)
(b)
of the Harassment Act provides as
follows:
"(b) If
the court is of the opinion that any provision of a protection order
deals with a matter
that should, in the interest of justice, be dealt
with further in terms of any other relevant law, the court must order
that that
provision remains in force for the limited period as the
court determines, in order to afford the party concerned the
opportunity
to seek appropriate relief in terms of that Jaw."
19.
The effect of the order granted by the
court
a quo
is
that appellant stands evicted from his dwelling. Firstly, the order
as granted militates against the relief sought by the respondent
in
her application. It is apparent from the reading of the application
that the respondent wanted the appellant to stop the conduct
by which
he was harassing her as she had complained of in her application. She
seeks protection from being harassed by the appellant.
The relief
sought by the respondent was:
"Please
stop to harass me."
Nowhere in
the application was an order sought for the eviction of the appellant
from his dwelling.
20.
Secondly, it is trite that where an
order is sought for the eviction of a person from residential
premises the provisions of the
Prevention of Illegal Eviction from
the Unlawful Occupation of Land Act 19 of 1998 ("the PIE Act")
come into play. It
means that if the
court
a
quo,
was of the opinion that the
respondent ought to be evicted from the property, it ought to have
granted the eviction order for a
limited period in order to afford
the respondent an opportunity to seek relief in terms of any other
law dealing with the eviction.
It is patently clear from the
provisions of section 10 of the Harassment Act that the court a
quo
had no authority to grant an order
of eviction without allowing the respondent to invoke the provisions
of the PIE Act. In terms
of the Harassment Act the court
a
quo
should have afforded the
respondent time within which to comply with the applicable
legislation, namely, the PIE Act. Having not
done so, the court
a
quo
erred.
CONCLUSION
21.
This
court is persuaded, as such, that the appeal should be upheld, the
order set aside and the matter referred back to the court
a
quo.
22.
In the circumstances , the following
order is made:
22.1
The
appeal is upheld.
22.2
The
judgment and order of the court a
quo
granted on 7 June 2016 under case
number H236/2016 is set aside in as far as it relates to the eviction
of the appellant from stand
JV3701 Jeffsville.
22.3
The matter is remitted to the court a
quo
for
hearing before another magistrate.
22.4
No order is made as to costs.
T.A. Maumela.
Judge of the High Court of South Africa.
I
agree.
E. M. Kubushi
Judge of the High Court of South Africa.
APPEARANCES
HEARD
ON
: 05 DECEMBER 2017
JUDGMENT
ON
: 15 MARCH 2018
APPELANT'S COUNSEL
: ADV. N.S MTETO
APPELANT'S ATTORNEY
: LAWYERS FOR HUMAN RIGHTS
RESPONDENT'S ATTORNEYS
: NO APPEARANCE
RESPONDENT'S ATTORNEY
: NO APPEARANCE
[1]
2001 JOL 8930 (CC).
[2]
(08/22932)
[2008] ZAGPHC 289
(25 September 2008).