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[2018] ZAECMHC 13
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Ntantana v Mhlontlo Local Municipality and Another (3412/2017) [2018] ZAECMHC 13 (27 February 2018)

NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – MTHATHA
Case No: 3412/2017
Date Heard:
1/02/2018
Date Delivered:
27/02/18
In
the matter between:
NOM
KHITHA
NTANTANA
Applicant
and
MHLONTLO
LOCAL
MUNICIPALITY
First Respondent
THE
MUNICIPAL MANAGER:
MHONTLO
MUNICIPALITY
Second Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
The matter serves before me consequent upon an appeal judgment and
order of the Full Court of this Division pursuant to the
dismissal of
the applicants’ application by Mjali J
.
B.
Background
:
[2]
For purposes of completion, I
shall refer to a brief
background which serves to establish the genesis of the lis between
the parties.  The applicants brought
about four different
applications which were consolidated.  It was after their homes
where demolished (without a court order)
allegedly by the
respondents.  Hartle J, in her appeal judgment dealt concisely
with the essential averments contained in
the various founding
affidavits in support of the applications.  I shall deal with
facts as they appear in the appeal judgment
but for reference to the
parties.
[3]
The essential allegations gleaned from the affidavits are as follows:
3.1
the
applicants are all indigent persons, alternatively derive an income
from informal sources;
3.2
each
of them had moved to and informally settled in the area known a Chris
Hani Park because they could not afford to pay rent to
property
owners in the nearby township;
3.3
the
municipality never had any issue with them settling where they did;
3.4
some
of the applicants have lived at the informal settlement together with
their children for more than a decade;
3.5
on
5 November 2014 the speaker and mayor of the first respondent called
a meeting with the residents of Chris Hani Park at the town
hall;
3.6
the
residents were informed by them that the municipality wished to build
subsidy (“RDP”) houses for them in Chris Hani
Park;
3.7
an
“agreement” or understanding was reached that the
residents would not be without accommodation pending construction
of
the RDP houses;
3.8
the
following day the mayor and the speaker instructed the residents to
vacate their structures on or before 21 November 2014;
3.9
the
applicants claim that they did so in breach of the “agreement”
reached on 5 November 2014;
3.10
on 21
November 2014 Mr Hlabiso, a ward councillor of the first respondent,
arrived with a TLB machine and started to demolish the

appellants’ homes without a court order;
3.11
some
residents began demolishing their own structures with a view to
salvaging materials;
3.12
residents
protested; and
3.13
Mr Hlabiso said that he would return on 24 November 2014 to continue
the demolitions.  He did not do
so on that day, but made
reappearance on 25 November 2014.
4.
The applicants contended generally in their founding affidavits that;
4.1
the demolishment and dismantling of their structures constituted
illegal acts since the
ward councillor and other unknown officials of
the first respondent who displaced them from their homes in this
manner did so without
an order of court, in violation of the law and
the Constitution;
4.2
in respect of their evictions (made manifest by demolishing their
structures) they were
entitled to proper notice and alternative
accommodation being put in place;
4.3
the first respondent at whose instance the demolitions were effected
was liable for the
unlawful action and in any event liable on a
statutory and constitutional basis to facilitate their access to
adequate housing
under the circumstances;
4.4
an interdict would in the short term and pending the return
date/finalization of the application
in respect of the constitutional
relief being sought restrain the respondents from demolishing their
homes further or evicting
them or removing their belongings without
an order of court;
4.5
even in respect of the partly demolished houses, these were not
conducive for habitation
in such an un-reconstituted state;
4.6
none of the applicants were in a position to arrange alternative
accommodation for themselves
or for their families;
4.7
even though the respondents may have been acting in terms of a policy
by seeking to address
the constitutional rights of access of all the
affected parties to adequate housing, the implementation of that
policy, in the
manner in which it was being undertaken, was not
reasonable by virtue of the fact that it entailed the residents being
removed
from their homes without any alternative accommodation being
provided in the interim while the subsidy houses were being built;
4.8
the conduct of the respondents amounted also to spoliation.  The
applicants had been
in peaceful and undisturbed possession of their
property, which the respondents had deprived of in a violent or
unlawful manner
and against their will”.
[4]
The respondents in their answering affidavits aver, in a nutshell,
that they did not demolish or intend to demolish the applicants’

structures.  The respondents deny that the first respondents’
employees took possession of applicants’ property
or intended
to do so and in any event, they cannot be held vicariously liable for
the acts of its Mayor and Speaker, not being
its employees.  The
respondents further contended that spoliation is not a remedy
available to applicants since the demolishing
had already occurred or
was imminent.
C.
The Order
:
[5]
In its judgment, the Full Court issued an order, which even though
not entirely relevant for purpose hereof, reads:
“
1.
A rule nisi issues calling upon the respondents to show cause, if
any, on Thursday,
the 5
th
day of May 2016 at 09:30, or as soon thereafter as the matter may be
heard, why the following final relief should not be granted:
1.1
that it be declared that the eviction of each appellant by the
respondents by  the
demolition of their homes was unlawful;
1.2
that the appellants are entitled to reconstituted restoration of
their homes as soon
as possible, albeit on a temporary basis pending
the permanent allocation of subsidy (“RDP”) homes to
them, at a place
where they can be accommodated in the interim;
1.3
that
the temporary structures (using such of the materials still at the
appellants’    disposal as can be employed
towards
this end) must be such that they afford shelter,    privacy
and amenities at least equivalent to the appellants’
structures
that were     demolished, and which are capable of
being dismantled upon the allocation of

permanent RDP homes to them;
1.4
that
the appellants and the first respondent must through their legal
representatives, engage meaningfully with each other with
a view to
reaching agreement on the aspects referred to below and report on
affidavit to the High Court on a date to be determined
what they have
agreed and under what time frame their agreement is to be
implemented:
1.4.1
the
location where the appellants will be permitted to temporarily
reconstruct their dwellings;
1.4.2
the manner
in which the appellants will be assisted by officials or agents of
the first respondent in the substituted of their dwellings;
1.4.3
the stage
at which the appellants can expect to be accommodated in the
permanent RDP homes and the time frames generally applicable
to the
expected milestone to be achieved in realizing their rights of access
to adequate housing; and
1.4.4
the
availability of services to the appellants by the first respondent
and the condition regarding payment under which these will
be
provided;
1.5
that
the court grant such other or further constitutional reparation to
the appellants as may seem meet as a result of the unlawful
eviction
from their homes by the respondents; and
1.6
that
the respondents pay the costs of the application.
3.
The appellants’ representatives shall by the return date
envisaged in prayer 1 above furnish to the respondents’
legal
representatives and to the High Court a comprehensive
schedule (reflecting the names, ages and gender
of each person who
occupied the respective dwellings as at 25 November 2014 including
whether they are scholars or adults
and whether they are
employed or not; the original site allotment number of each dwelling
if    applicable; the size
of each dwelling (for e.g. 1 or
2 or 3 roomed structure) and what materials they were comprised of;
the original date upon which
each appellant took up occupation of
their sites at the informal settlement and confirmation of the status
of each appellant’s
application for subsidy assistance;
4.
The respondents are ordered to pay the costs of the appeal which
costs are to include consequent upon the employment
of two counsel.
5.
The interlocutory application to introduce further evidence succeeds,
provided that the costs of this application
shall be reserved for
determination by the High Court upon finalisation of the entire
matter”.
D.
Argument
;
[6]
Mr Matoti, for the applicants, argued that the matter be referred for
hearing of oral evidence on certain aspects, without arguing
the
merits of the matter.  He submitted that the issue to be
referred is whether the respondents were responsible for the

demolition of the applicants’ structures as that is incapable
of being resolved on the papers.  To put a spanner in
the works
the applicants’ referred to a letter penned by the respondents’
attorneys dated 31 March 2015 addressed to
the sheriff of the court,
Tsolo which reads:
“
Dear
Sir
RE:
CASE NO. 3407, 3412, 3414, 3415, 3424, 3434/14 vs MHLONTL
LOCAL
MUNICIPAILITY
We
refer to the above matter and confirm that we act on behalf of the
above named client being Mhlontlo Local Municipality and further

attach herein a Court Order by Judge Makaula and a Judgment by
Ladyship Mjali and request yourself to visit Chris Hani, Tsolo
District Eastern Cape under ERF 42 and evict everyone who has been
situated in that area if necessary kindly request the assistance
of
Members of South African Police Station, Tsolo”.
The
submissions by Mr Matoti are that included in the heading of the
letter is the case number of this matter thus meaning the sheriff
was
instructed to evict the applicants from Erf 42 and implicit, the
portion thereof.
[7]
Mr Bodlani, for the respondents, premised his argument on three
issues in opposition of referral to oral evidence.  Firstly,
he
argued that the applicants elected to argue the main application and
then in the alternative asked for it to be referred to
oral
evidence.  I assume in this regard that Bodlani referred to the
argument raised before Mjali J and on appeal.  I
say so because,
before me, Mr Matoti did not argue the merits of the matter other
than submitting that there is a dispute of fact.
Relying on
Law
Society, Northern Provinces v Mogami
[1]
,
Mr Bodlani argued that now that the applicants elected to argue the
merits, they are precluded from asking the court to refer
the matter
to oral evidence.  Secondly, in respect of the letter the
respondents argued that the letter was written on 31
March 2015 and
the application was issued on 26 November 2014.   The
demolition occurred on 21 November 2014.  Thus,
Mr Bodlani
argued that the letter could not assist the applicants because it was
sent four and half months after the demolition
of the structures.
He argued further that the letter talks to eviction from Erf 42 and
not the remainder of Erf 42.
If I understood Mr Bodlani well,
the third leg of his argument basically states that there is no
dispute of fact that cannot be
resolved on the papers.
E.
Analysis
:
[8]
Rule 6(5)(g) of the Uniform Rules of Court provides:
“
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 expeditions 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”.
[9]
The application of Rule 6(5)(g) has been a subject of numerous
decisions.  In
Nkwetsha
v Minister of Law and Order and Another
[2]
,
Vivier JA said of Rule 6(5) (g):
“
Our
own Rule 6(5)(g), which is of application in the present case, is,
however, of wide import and empowers the Court,
whenever
an application cannot properly be decided on affidavit, to ‘make
such order as to it seems meet with a view to ensuring a
just, and
expeditious decision’.  The Court is further empowered ‘in
particular, but without affecting the generality
of the foregoing’,
to direct that oral evidence be heard on specified issues, and to
that end the Court may order any deponent
to appear personally or
grant leave for him or any other, person to be subpoenaed.”
(Emphasis added)
[10]
In the matter, of
Mogami
[3]
,
at paragraph 23
,
Harms
DP, as he then was, had the following to say about hearing of oral
evidence in application proceedings:
“
An
application for hearing of oral evidence must, as a rule be made in
limine
and not
once it becomes clear that the applicant failure to convince the
Court on the papers or an appeal.  The circumstances
must be
exceptional before a Court will permit an applicant to apply in the
alternative for the matter to be referred to evidence
should the main
argument fail”.
[11]
The court in
Mogami
refers to
De
Reszke v Marais and Others
[4]
where Comrie J after reviewing some number of decisions concluded as
follows:
“
In
the present case an application to refer for oral evidence should, in
my opinion, have been brought
ab
initio
.
The evidence of testamentary incapacity was on record; the reply was
that the deceased’s intellectual capacity fluctuated;
given
that the deceased was waning at the time, and nigh unto death, the
evidence relating to testamentary incapacity was also
relevant to the
deceased’s intentions on 18 and 22 October 2001.  I do not
consider this to be a case where oral evidence
should have been
reserved as an alternative to argument on the affidavits.
As
I have recorded, oral evidence was mentioned for the first time on
appeal
,
and then by the Court.  It elicited no more than a conditional
application.  I think it is asking too much to expect
this Court
to express a second opinion of the affidavits and then,
if
the
appellant
fails, to request that the matter be referred for oral evidence
.
Some
compelling reason would need to be present for us to follow such a
course, and in my judgment no such reason is present
”.
(Emphasis added)
[12]
It is to be noted that in both
Mogami
and
De
Reszke
the
issue of referral to oral evidence was raised on appeal.  Such
an issue did not come up in the court
a
quo.
Similarly, in this matter the issue was not raised before Mjali J and
on appeal.  It is raised at this stage.
Be that as it may,
I am of the view that the principle would have been applicable even
if it was raised before Mjali J.  On
the authority of
Mogami
decision,    in order for me to refer the matter for
hearing oral evidence, I have to find exceptional circumstances.

As can be gleaned from the summary of averments contained in the
applicants’ affidavits and determined by the Full Court,
the
matter raises constitutional issues which have far reaching
constitutional consequences for the parties.  Hartle J made
the
following remarks, which I find apposite:
“
The
judgment of the court
a
quo
reflects in my view a misconception
as
to the true nature of
the
appellants’ cause of action and the case made out in the
papers
.
In the lead application it was not clearly spelt out in the notice of
motion that, apart from the necessity to grant a spoliation
order
where the circumstances justified this,
an
enquiry in the long term into the
illegality
was also required but in the
other applications orders were pertinently sought declaring the
conduct of the respondents in interfering with or demolishing the

property of the appellants to be unlawful.  In the
absence
of any justification by the respondents for the eviction of the
appellants such as that it was necessary, or unavoidable,
or
warranted on any particular basis, the question whether the alleged
interference with the appellants’ right not arbitrarily
to be
deprived of their homes was unlawful as a precursor to the court then
determining appropriate constitutional relief would
certainly still
require to be determined.  There remains a need to interrogate,
leaving aside the respondents’ denial
that
they
are responsible therefor, whether there existed a valid reason for
the evictions
.
Having had regard to the very valid considerations placed on the
record by the appellants which militated against the precipitate

demolition of their homes, it certainly seems necessary that the
court’s reproval of the first respondent’s conduct
be
starkly stated, and attenuated by appropriate orders”. (My own
underlining)
F.
The dispute of
facts
:
[13]
The applicant in their affidavits repeatedly make the point that the
Ward Councillor, when he came to demolish their homes,
was in the
company of other officials of the first respondent whose full and
further particulars are unknown to them.  In
answer, the first
respondent avers that “neither the first respondent, nor its
employees nor the second respondent were responsible
for the eviction
of the applicants from, or the demolishing of, their structures”.
[14]
What comes out clearly from the respondents papers is that the
applicants were in occupation of the land unlawfully and that
the
Department of Human Settlement of the Eastern Cape was to build low
cost housing on that land.  The respondent handed
over the land
to the Department.  That is so in spite of the fact that the
applicants have been in occupation of that land
for more than a
decade.  Hartle J, in her judgment refers to an affidavit
deposed to in support of an application for leave
to appeal to the
Supreme Court of Appeal, which I have not been priory to in which the
first respondent averred that they ‘never
intended to demolish
the appellants houses without following due process of the Law’.
The dispute of facts in this
regard cries out for oral evidence
especially that the Constitutional rights of the applicants have been
violated.
[15]
The facts of this matter and a determination whether the respondents
were responsible for the demolition of the applicants’

structures constitute exceptional circumstances calling for the
referral of the matter for hearing of oral evidence on that issue.

I shall not deal in this judgment about which correct interpretation
is to be given to the letter referred to in paragraph 6 above.

Suffice to say that it indicates that dispute cannot be resolved on
the papers.
[16]
Consequently, I make the following order:
1.
The issue
whether the first and second respondents demolished the applicants’
residential properties on the 21 November 2014
is referred for
determination by way of oral evidence.
2.
Parties
will be entitled to call the evidence of all the witnesses who have
already deposed to affidavits together with any other
witness
provided that a party who intends to call a witness who has not
deposed to any of the affidavits that are already on record,
shall
first prepare and deliver such affidavit(s) on a date 30 (thirty)
days before the hearing of the matter.
3.
The rules
relating to discovery procedures in terms of rule 35 shall apply.
4.
Costs shall
be payable in the cause.
____________________
M
MAKAULA
Judge
of the High Court
Counsel
for the Applicant:

Adv Matoti
Mthatha
Instructed
by:

Babe & Talapile Inc
Mthatha
Counsel
for the Respondents:

Adv AM Bodlani
Instructed
by:

SS Nkonyeni Attorneys
Mthatha
Date
Heard:

1 February 2018
Date
Delivered:
27 February 2018
[1]
2010(1) SA 186 SC; [2010] 1 All SA 315 (SCA).
[2]
1988(3) SA 99(A) at 117 C.
[3]
Supra.
[4]
2006(1) SA 401 at paragraph 34.