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[2018] ZAGPJHC 483
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Metropolitan Evangelical Services NPC and Another v Goge (A5039/17) [2018] ZAGPJHC 483; 2018 (6) SA 564 (GJ) (5 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A5039/17
Date
of Hearing: 27 June 2018
Date
of Judgment: 05-09-18
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
METROPOLITAN
EVANGELICAL SERVICES NPC
First
Appellant
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Second
Appellant
And
HLONIPHOKWAKE
GOGE
Respondent
JUDGMENT
MASHILE
J:
[1]
This appeal is against the whole judgment and order of Dewrance AJ
sitting as Court of first instance. The order restored possession
of
a room at a temporary emergency accommodation facility or shelter,
known as Ekuthuleni, to the respondent. The first appellant
ran
Ekuthuleni on behalf of the second appellant. Leave to appeal to this
Court was granted by the Supreme Court of Appeal following
a
successful petition by the appellants.
[2]
On enquiry from this court both parties submitted that this appeal
was not moot. In a written submission on that issue the respondent's
representatives stated that he has been homeless since his exclusion
from Ekhutuleni and has 'squatted' at times with friends who
are
living in another shelter.
[3]
The respondent was part of a group of individuals who took up
occupation of accommodation at Ekuthuleni pursuant to the decision
of
the Constitutional Court in the matter of
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another
2012 (2) SA 104
(CC). The respondent occupied a room
at Ekuthuleni on the 30 June 2012. It is common cause that on 18 June
2016 the respondent
went away after a confrontation with other
residents at the shelter, returned on 25 September 2016, where he
stayed overnight and
changed his clothing; and was barred from entry
to the room on 26 September 2016 by the appellants' security
personnel.
[4]
Central to this matter is therefore whether the appellants lawfully
barred the respondent from the room. It is common cause
that the
barring was not sanctioned by a court order.
Background
facts
[5]
During the evening of 18 June 2016 and at Ekuthuleni, the respondent
became involved in arguments with Busisiwe Nhlapo ('Ms
Nhlapo'), her
daughter Mbali Nhlapo ('Mbali'), and a security guard at Ekuthuleni.
The exchange allegedly left the respondent with
burn wounds caused by
boiling water poured over him by Mbali. As a result of these
altercations, the respondent left Ekuthuleni,
after locking the room
in which he had left most of his belongings and taking the key to the
room with him. During the period of
the respondent's physical absence
from Ekuthuleni, the first appellant left the room entirely
undisturbed, notwithstanding that
similar accommodation was highly in
demand. On the respondent's return on 25 September 2016, he accessed
the room. There is no
suggestion that he did so unlawfully. Using his
keys, the respondent opened the room, slept overnight, woke up the
following day
of 26 September 2016, and left for a while. When he
came back later, the security guards of the appellants refused to let
him inside
the facility.
[6]
Consequently on 28 September 2016, the respondent launched an urgent
application to regain access to his room at Ekuthuleni.
He contended
that the appellants' refusal to allow him to return to the room, that
he had lawfully possessed and occupied for approximately
four years
and in which he had slept on 25 September 2016, constituted an
illegal eviction. Furthermore, the respondent asserted
that his
eviction, in the absence of a court order authorising the appellants'
actions, violated his rights as contemplated in,
inter alia, Section
26 (3) of the Constitution, and that he had been spoliated. The
relief he sought is framed as interim relief,
i.e., that he be
re-admitted to Ekuthuleni pending the final determination of an
eviction application that the appellants had brought
against him some
time ago and was not withdrawn.
[7]
The appellants counter-applied for certain relief, including an order
that the respondent be declared in contempt of an order
granted by
Vally J in this Division on 20 May 2016 under case number 2015/14392,
in terms of which the respondent consented to
be restrained from
assaulting, intimidating or verbally abusing any person employed by
the appellants, or occupying Ekuthuleni.
The order was made in the
presence of the respondent and his legal representatives.
[8]
Dewrance AJ removed the counter-applications from the roll having
ruled that it was not just and equitable for him to deal with
the
counter-applications on an urgent basis, and if entertaining them
would mean that the court must enter into the merits of the
factual
disputes between the parties, in a matter where the court was to deal
with the appellants' resort to self-help. Dewrance
AJ then made the
following order:
'61.1 The Respondents'
refusal to allow the Applicant to occupy the shelter after 25
September 2016 is in breach of the Applicant's
right contained in
section 26(3) of the Constitution not to be evicted without an order
of court;
61.2 The Respondents are
ordered to forthwith re-admit the Applicant into the shelter;
61.3 The Applicant is
awarded the costs on a party and party scale, including the cost
consequent upon the employment of two counsel;
61.4 The counter
applications are removed from the roll and costs are reserved.'
[9]
It is perhaps necessary to mention at this juncture that during the
course of the hearing of the application before the court
a quo, the
appellants withdrew the pending eviction application, and causing, in
effect, its substitution with the new eviction
application brought by
the appellants in their counter-applications.
[10]
The appellants contend that the order of the court a quo was wrongly
made, because the room was not the respondent's home;
that he had
abandoned the room and had given up occupying it when he left
Ekuthuleni on 18 June 2016; and, further, that he was
not in
occupation of it, or in peaceful occupation of it when he was not
allowed to access it on 26 September 2016. The appellants'
counsel
submitted before us that the new eviction application was conditional
upon the court a quo finding in favour of the respondent.
However,
the application itself does not purport to be conditional. Further,
counsel submitted in written heads of argument that
the
counter-applications were wrongly removed from the roll by the court
a quo, that despite the fact that such order was not appealable,
but
was, in any event, not appealed against by the appellants.
[11]
The issue that required determination, as rightfully concluded by the
court a quo, is whether the respondent was lawfully evicted
from the
room that he occupied at Ekuthuleni. In deciding that question, this
Court must make a finding on whether or not the room
at Ekuthuleni
was the respondent's home, or more particularly, whether he was in
occupation of the room when he was denied access
thereto on 26
September 2016. Relevant to these questions is whether, conscious of
his rights in terms of the Constitution, he
waived his right of
occupying it on 18 June 2016, when he left. And a related question,
namely, whether he permanently, or temporarily,
left the room on that
date.
[12]
Notwithstanding the elaborate arguments advanced regarding the cause
for the respondent leaving Ekuthuleni on 18 June 2016,
what is
crucial is that he left his belongings behind in the room; that he
locked it and retained the keys (retaining one key himself
and
leaving the other key with a friend of his who also lived in the
shelter), and, significantly, that he returned on 25 September
2016,
opened the room with the keys he had retained; and stayed there
overnight, only to be precluded from entry again on 26 September
2016.
The
Legal position
[13]
Before turning to the analysis of the facts, I deem it necessary to
briefly discuss the legal position. Section 26 (3) of the
Constitution provides that: 'no one may be evicted from their
home without an order of court made after considering all the
relevant circumstances.' An 'eviction' within the meaning of section
26 (3) extends to any significant interference with a person's
place
of residence. See
Motswagae v Rustenburg Local Municipality
2013
(2) SA 613
(CC). It also incorporates a situation where a person is
refused access to his or her home after a period of absence. See
Zulu
v eThekwini Municipality
2014 (4) SA 590
(CC) para 25.
[14]
Section 26 (3) of the Constitution and the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998
('the
PIE Act') apply to homeless shelters. See
Ark City of Refuge v
Bailing
[2011] 2 All SA 195
(YVCC) para 6 and
Dladla v City of
Johannesburg
2018 (2) SA 327
(CC).
[15]
The section is also given effect to in the PIE Act. The PIE Act
requires that an order for eviction from a person's home may
only be
granted after consent to occupy the property has been withdrawn, or a
right of occupation has been validly terminated,
written and
effective notice is given to the occupier of the proceedings for his
or her eviction, and a court is satisfied that
having reviewed all
the relevant information, an eviction order would be just and
equitable.
[16]
Further, it is trite that a party who is in peaceful and undisturbed
possession of a thing may not be deprived of it without
a court
order, that party's consent, or a clear statutory right, which must
itself be constitutional. A party deprived of possession
of a thing
without these requirements being met has been spoliated, and is
entitled to the common law remedy of the
mandament van spolie.
The
remedy is necessary to protect parties in possession of their
property, to protect the rule of law, and to guard against self-help.
[17]
The mandament is a robust and summary remedy. It will be granted even
where restoration of possession would, on its face, constitute
an
illegal act, or further the commission of a crime. In those events,
the ordinary remedies for illegality must be pursued. They
are not
reasons to deny the despoiled person the benefit of the remedy. The
status quo ante
must be restored before all else.
[18]
A bare allegation by a party that another party has voluntarily
vacated premises previously occupied by the latter is not adequate.
Additionally, the party wishing to evict must show that the party
that he wishes to evict intended to leave permanently and to
waive
his rights under section 26 (3) of the Constitution and the
mandament
van spolie,
to judicial control over his eviction.
[19]
Accordingly, in this case the onus was on the appellants to establish
that the respondent expressly waived his aforementioned
rights and
his right to occupy his room at Ekuthuleni freely, voluntarily and in
full knowledge of the legal consequences of doing
so. Insofar as the
requirement of express waiver is needed, see
Road Accident Fund v
Mothupi
2000 (4) SA 38
(SCA). Alternatively, the appellants ought
to show this by proving that the respondent's conduct was
inconsistent with the intention
to continue occupation. See
Borslap
v Spangenberg
1974 (3) SA 695
(A).
Discussion
[20]
An appropriate and a direct manner of deciding this case is to
determine what the common cause facts are. If a decision can
be made
by reference to those agreed facts only then no need exists to
clutter and confound them with the disputed facts. That
said, the
parties agree that:
20.1 The respondent has
been occupying the room at Ekuthuleni since May 2012;
20.2 On 18 June 2018, the
respondent, Ms Nhlapo, Mbali and a security guard had a violent
exchange that left the respondent burnt
with boiling water poured
over him by Mbali;
20.3 The respondent took
a few of his belongings from his room;
20.4 He locked the room
and took the one key with him and left the other key with a friend,
because she was the only one he could
trust with his room;
20.5 He left most of his
possessions inside the room. (The appellants' counsel's submission to
the contrary is not borne out by
the record. The deponent to the
appellant's answering affidavit, Mr Pienaar, in fact confirms the
respondent's statement that the
respondent's belongings were in the
room. Elsewhere in their answering affidavit the appellants aver they
do not know whether there
was anything in the room. But this does not
explain Mr Pienaar's version that he did not want to open the room
with the master
key because he did not want to be 'accused of the
theft of the items therein'.);
20.6 For the three month
period during which the respondent was absent allegedly recuperating
in Kwa-Zulu Natal, the appellants
did not open or otherwise interfere
with his room or possessions;
20.7 Notwithstanding that
the demand for rooms at Ekuthuleni was critical, the first appellant
did not seek to use the respondent's
room for any other purpose
during his absence;
20.8 The respondent
returned to Ekuthuleni on 25 September 2016, and he accessed and
slept in his room;
20.9 He slept overnight,
changed clothes the following day, went out for a short while and on
his return was denied entry.
[21]
The respondent averred that he left Ekuthuleni on 18 June to seek
medical attention and to be cared for by relatives in Kwa-Zulu
Natal
and did not return until he had recovered from most of his injuries.
He also averred that before he left he told Mr Ngobeni,
the caretaker
of the shelter of his intentions and that he would be returning to
the shelter upon his recovery. He also stated
that he had regularly
updated Mr Ngobeni about his condition. The appellants aver that the
respondent did not tell any of the appellants'
employees, including
Mr Ngobeni, where he was going to or when he would be returning. But
this does not detract from the fact that
other facts are clearly
consistent with the respondent's version that he intended to return
to the facility. He retained what he
considered to be the means to
gain access to and control of the room.
[22]
All of the common cause facts show, indisputably, not only that the
respondent regarded the room as his home; that he did not
waive or
intend to waive his right to occupy the room, but, in fact, intended
to return to it; that he indeed, returned to it and
that, at the time
his access to it was barred by the appellants, he was still in
occupation of it. That the appellants never withdrew
the first
application of eviction until they brought, in substitution of that
application, a counter- application to evict the
respondent from the
shelter, is a recognition by them of his occupation of the room.
[23]
There can be no reasonable contestation that the appellants' conduct
in denying the Respondent access to the room in those
circumstances,
without a court order, or his consent, was unlawful.
[24]
An argument advanced by the appellants as justification for their
conduct in denying the respondent access to Ekuthuleni on
26
September 2016, is that their conduct constituted some form of
private defence. In the light of the undisputed facts, I am
completely at loss how the appellants can seek to rely on such a
defence, where no case had been made to sustain it. The requirements
of a private defence are the following: (a) There must be an attack,
which must have commenced or is imminent; (b) The attack must
be on a
legally protected interest, which could be life and limb or property;
(c) The attack must have been unlawful. (See Jonathan
Burchell,
Principles of Criminal Law,
(5th Edition)).
[25]
The respondent accessed his room on 25 September 2016. There was no
suggestion at all that the respondent threatened anyone,
or that an
attack from the respondent was imminent, or had commenced. In fact,
there is no evidence that after the respondent left
on 18 June 2018
he attacked, or threatened to attack anyone.
[26]
The court of first instance cannot be faulted for holding that 'the
allegation that the respondent had voluntarily vacated
the shelter
was "quite fanciful, palpably implausible and far-fetched".'
[27]
I have deliberately avoided venturing into the discussion and
analysis of the disputed facts, because it would have been completely
gratuitous, given the very simple basis on which this matter was
capable of being decided. In the premises, the eviction of the
respondent was unlawful insofar as it contravenes the provisions of
section 26(3) of the Constitution, the PIE Act and constituted
an
unlawful eviction.
[28]
The appellants' counsel submitted that even if the court a quo may
have been correct in finding that the respondent's constitutional
rights have been infringed, it was not appropriate to order his
return to the shelter. This argument lacks merit. It was indeed
appropriate in light of the court's approach to the matter. Even
though the court a quo elected to determine the matter on the
basis
that the respondent's rights in section 26(3) of the Constitution had
been infringed, it correctly considered the relief
to be appropriate
for the enforcement and protection of those provisions of the
Constitution that had been breached. At the heart
of this matter is
the appellants' resort to self-help in evicting the respondent. It
was thus appropriate to grant relief which,
in effect, restores the
status quo ante.
[29]
In the result I propose the following order:
The
appeal is dismissed with costs, including those consequent upon the
employment of two counsel.
__________________________
BAMASHILE
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
I
agree and it is so ordered.
_________________________
P
COPPIN
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
_________________________
E
J FRANCIS
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
APPEARANCES:
For
the Appellants: Adv. A Pullinger
Instructed
by: Edward Nathan Sonnenbergs Inc
For
the Respondent: Adv. S Wilson and Adv. I de Vos
Instructed
by: Seri Law Clinic