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[2018] ZAECMHC 73
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Raleni v Eastern Cape Development Corporation (3979/2018) [2018] ZAECMHC 73 (30 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE NO.
3979/2018
Heard
on : 20 September 2018
Date
delivered: 30 October 2018
In
the matter between:
MZWEBANGO
RALENI
Applicant
And
EASTERN
CAPE DEVELOPMENT CORPORATION
Respondent
JUDGMENT
MAJIKI
J:
[1]
The applicant is an adult male who states that he has been residing
at 14 Qolorha
Close, Butterworth (the property). He approached
this
Court
by
way of urgency seeking an order declaring his eviction from the
property to be wrongful, unlawful and unconstitutional; that
the
respondent be directed to allow him vacant occupation of the
property; that the respondent or its agent or nominee be interdicted
from interfering with his occupation of the property and other
ancillary reliefs. The application is opposed by the
respondent.
BACKGROUND
[2]
It is common cause that the respondent is the owner of the property.
The property
was previously occupied by one Nomini Hlangwana
(Hlangwana) without the respondent’s consent or authorisation.
Around
June 2013 the respondent issued summons against Hlangwana for
her eviction from the property. The action was defended by
Hlangwana. In her plea dated 03 June 2015 she denied that
respondent was the owner and that she was in wrongful and unlawful
occupation of the property. On 13 May an order in terms
of section 4(2) of the Prevention of Illegal Eviction from
and
Unlawful Occupation of Land Act 19 of 1998 (PIE) was made in that
action. Eventually, on 28 May 2018 the order including
the
following terms was obtained against Hlangwana, directing that “the
defendant and all who claim title through him (sic),
must vacate the
property within thirty (30) calendar days of receipt of this order”.
[3]
On 17 August 2018 the sheriff of Butterworth district executed a
warrant of ejectment
which was issued pursuant to the order against
Hlangwana. The warrant authorised the sheriff to remove from
the premises
the “defendant and all those in occupation”
of the property. It is the eviction on that warrant that the
applicant
seeks to have declared wrongful. On 17 August he
approached this
C
ourt for that purpose.
APPLICATION
[4]
The applicant’s attorney of record, Mr Makade placed before the
duty judge a
Certificate of Urgency in terms
of
rule 12
(a)
of the Joint Rules of Practice for High Courts of the Eastern Cape
Province (the Joint Rules). A
directive was issued by
the duty Judge, Mlomzale AJ, on the same day. I need to say
something about the said directive.
The terms of the directive
are framed as follows:
“
1.
After hearing Mr Makade Bonisile in Chambers and reading the
content of the warrant of ejectment marked annexure A, the Court
directs as follows:-
2.
The applicant may issue and serve the papers upon the respondent
on or before the 23
rd
of August 2018.
The matter must be set down for hearing on the 28 August 2018.
3.
A Rule Nisi is issued that the occupation of the premises situated
at No 14 Qolorha Close extension 7 Butterworth be restored back
to
the applicant pending the hearing of the application on the 28 August
2018 or any other date as the judge directs”.
[5]
Rule 12
(a)
of the Joint Rules provides for the placing of
certificate of urgency, before a duty judge, which sets out the
reasons for urgency.
Application papers or annexures are not to
be presented upon the placing of the certificate, until a directive
has been issued
by the judge. Clearly, at this stage there is
no application before court and it cannot be competent for a judge to
grant
any order sought in the application, let alone grant a
rule
nisi
. This is even so because the rule of practice is that,
it is not permissible to grant interim interdicts without notice to
the respondent, unless there is a real danger that giving of notice
would defeat the object of the interdict or it is wholly
impracticable
to give such notice.
[6]
In this matter the judge was presented with annexures, which is not
envisaged in rule
12
(a)
of the Joint Rules. A
rule
nisi
directive/order was granted without notice to the other
side. Such a directive was not regularly obtained. Mr
Makade
failed to give the assistance to the court as would be
expected of an officer of this Court, such should be frowned upon.
[7]
During the hearing the parties, correctly so, were of the same mind
that there was
no
rule nisi
issued in the matter.
However, in the light of the directive, the respondent agreed not to
interfere with the applicant’s
occupancy pending the
finalisation of the matter.
APPLICANT’S
CASE
[8]
The applicant avers that his wife applied for and was allocated an
apartment by Department
of Public Works, East London, during January
2015. He lives in the property with his minor children, aged,
16, 10 and 6 years
old. He does not state when they occupied the
property. He says when the sheriff executed the warrant,
he explained
that he was not Hlangwana. The respondent did not
follow due process of the law in having him evicted. The
eviction
took place without compliance with section 26(3) of the
Constitution of Republic of South Africa, 1996 (the Constitution).
The
applicant’s circumstances as contemplated in sections 4 and
6 of PIE were not considered. His situation and his family
circumstances render the matter urgent, the balance of convenience
favours him and he has no other alternate remedy.
[9]
As regards the issue of the warrant being issued by the magistrate
and not the clerk
of the court, or any aspect, relating to the
regulariness or not of the warrant of ejectment, that is beyond the
scope of the issues
to be determined in this application. There
is no application to challenge the said warrant or any part of the
proceedings
in the magistrate court.
[10]
The applicant vehemently denies that he obtained the property through
Hlangwana or obtained notice
of the proceedings prior to the
execution of the warrant of ejectment.
RESPONDENT’S
CASE
[11]
The respondent pleads
res litigiosa.
It avers that the
respondent’s action against Hlangwana was an action in
rem
and the action became
res litigiosa
upon commencement of
the action. Alternatively, should the court find that the
proceedings were an action in
personam
, the property became
res litigiosa
upon
litis contestatio
being reached in
the action. Upon the property becoming
res litigiosa
Hlangwana could alienate the property, but the respondent’s
rights in the property remain protected.
[12]
The applicant took occupation directly or indirectly from Hlangwana.
He does not state
how and when he occupied the property. The
Department of Public Works neither gave occupation nor did it have
the right to
allocate the property to the applicant’s wife.
The respondent gave PIE notice to Hlangwana and the local
municipality,
duly obtained order against Hlangwana whom it knew to
be in occupation of the property.
[13]
Both parties concede that the matter is urgent. The applicant
claims that he and his family
had no place to stay and the respondent
says the property is required for prospective tenant who is willing
to pay rent.
The respondent is not paying any rent.
Further, the respondent is legally required to administer the
property in the best
interests of the state.
[14]
The first issue to be determined in this application is whether the
proceedings against Hlangwana
were in
rem
or they are in
personam
. Further, whether compliance with PIE, order
and ejectment against Hlangwana could validly extend to the applicant
in the
circumstances of this case.
[15]
During the hearing most of Mr Jozana’s argument focused on the
issue that the applicant
is an unlawful occupier. Even if
his occupation was through Hlangwana, he was not given notice,
section 26(3) of the
Constitution was not complied with, before he
was evicted. Mr Hobbs
,
on the
other hand
,
correctly submitted that
this Court is not dealing with eviction proceedings or the status of
the eviction order. Even if
the applicant seeks to rely on
mandament van
spolie
, his application falls short of
the requisite allegation that he was in free and undisturbed
possession. He submitted further
that the eviction was in
execution of a valid court order.
[16]
With regard to whether the eviction proceedings are proceedings in
rem
, the respondent’s submission, that the property
became
res litigiosa
upon commencement of the action or if
they are in
personam
, it became
res litigiosa
upon
litis contestatio
, then Hlangwana’s disposition of the
property would not affect the respondent’s rights, would not be
faulted.
In
Blue-Cliff Investments
(Pty) Ltd and
Another v
Griessel
and Others
1971 (3) SA 93
(C) at
95-6 with regard to whether a sale of an undivided share in immovable
property is a
res
litigiosa
in a suit
commenced for the partition of the property it was stated
:
“
With regard to the first
point Sande in his Treatise upon Restraints sets out in Chap. IX,
para. 1, the principle which underlies
the rule against alienation,
and he says that it is to protect the thing itself, for otherwise the
judgment would be a mockery
and the suitor who vindicated would be in
a worse position, as the res litigiosa had been transferred to a man
other than the one
against whom the action was brought. In
para. 3 he says that a thing becomes a res litigiosa at the time when
there arises
a judicial enquiry concerning the dominium, or the right
of ownership of it. Therefore if there is no dispute about the
dominium,
but only about a servitude, or any other right over a
thing, then the right which has been subjected to judicial decision
becomes
litigiosum, but the thing itself does not, and therefore it
can be freely alienated.
In the present case what has been
alienated is an undivided share in a piece of land. There is no
dispute about the ownership
of that. The only dispute is how
the property itself is to be divided. What a plaintiff
primarily claims in a
partition suit is that his joint rights over
the whole of the property shall be exchanged for exclusive
rights over a defined
portion of it. In other words, the
plaintiff is claiming the surrender to him of the co-owners’
rights in respect
of the portion awarded to him, in return for
a surrender by him of his joint rights over the remainder of
the property.
Where there has been an alienation
pendente lite of an undefined share of immovable property there is,
strictly speaking, no dispute
about the ownership of the thing
alienated, but inasmuch as the alienator is being called upon to
surrender part of his joint rights
in respect of the property it
could, in a loose sense, be regarded as a dispute about the dominium
of the thing which has been
alienated”
In
my view the eviction proceedings against Hlangwana at the
commencement of the proceedings were not about ownership of the
property
and therefore not in
rem.
This view was also
followed in
Opera House (Grand Parade) Restaurant (Pty) Ltd v Cape
Town City Council
1986 (2) 656 (C) at 661 C.
[17]
The next issue is whether the property became
res litigiosa
upon
litis
contestatio
being reached in the action
against Hlangwana. In the action against Hlangwana, Hlangwana
did put the respondent’s
ownership of the property into dispute
in her plea. She denied that the respondent was the owner of the
property and denied that
she was in wrongful and unlawful occupation
of the property.
[18]
As was stated in
Blue-Cliff Investments
case (
supra
),
an action in
rem
is one in which the ownership of the property
is in issue. Even certain claims which are technically personal
might be sufficiently
akin to claims regarding disputed ownership as
to make the property in question
res litigiosa
. Personal
claims become
res litigiosa
at
litis contestatio
.
Alienation of such a property is permitted, provided the rights of
third persons are not affected. According to
Opera House
(
supra),
clearly, the rights of the respondent are herein
protected. If Hlangwana gave the property to the applicant,
that could not
be to the detriment of the respondent’s rights.
[19]
The next issue relates to non-compliance with section 26(3) and or
PIE. The applicant states
that in June 2014 his wife applied
for, and in January 2015 was allocated a house by public works.
In June 2015 Hlangwana
pleaded to the respondent eviction, summons.
When the respondent averred that “ he was in wrongful and
unlawful occupation
of the plaintiff’s property … took
occupation of the property without the plaintiff’s consent to
occupy …
and without any legally recognised right to occupy
the property”, Hlangwana pleaded, “the defendant denies
that she
is in wrongful and unlawful occupation of No. 14 Qolorha
Close, … as she denies plaintiff’s ownership thereof.”
[20]
The respondent
,
on the other hand
,
submits that the matter ought to be decided in its version that, the
applicant falls within the category of people “who occupied
the
property through” Hlangwana, and therefore is covered by the
court order.
[21]
The applicant’s version has many gaps, if the property was
allocated to the applicant’s
wife in January 2015 when did the
applicant and his family move in? where was Hlangwana?, how was
she claiming that she was
not in unlawful occupation of the property
six (6) months thereafter? According to the respondent the
applicant is deliberately
economical about furnishing this
information in his application.
[22]
At the time the applicant approached this Court he was in possession
of annexure “MR2.”
He instructed his attorneys to
act on his eviction. He and his legal representatives, ought to
have perused the processes
leading to the issue of annexure
“MR2”, the eviction proceedings. Even if they were
not aware of that action
prior to the applicant’s eviction,
before coming to this Court, the prudent thing to do would have been
to acquaint themselves
with the proceedings leading to issue of
annexure “MR2”. The applicant then had to explain
where did the involvement
of Hlangwana (as in the plea) end, or state
when the applicant took occupation and whether Hlangwana or anyone
was in occupation
of the property at that time. Further, the
applicant has not placed any facts that indicate that the Department
of Public
Works was entitled to allocate the property which belongs
to the respondent and how the said allocation was done, orally or in
writing, and has also not placed any evidence in that regard.
[23]
I have to agree with the respondent that in order to resolve the
dispute of whether the respondent
followed due process of the law in
evicting the applicant, that has to be decided on the version of the
respondent. I accept
that there is no other conclusion to be
reached regarding his occupancy, he occupied the property through
Hlangwana. In my
view, he is included in the order of eviction
of Hlangwana and those who occupied the property through her. PIE
was
complied with therein, the section 4 (2) notice was affixed at
the principal door of the property on 17 May 2016. If the
applicant had wanted to place his circumstances before the
court that granted the eviction, he could have sought an order
re-opening those proceedings so that he could do so, explain his
reasons why he did not timeously do so or why he failed to be
present
in court when the order was granted by default. In his version
the property was allocated to his wife in June 2015
already, PIE
notice was affixed in the property eleven (11) months later.
Furthermore, upon execution of warrant of execution,
he could have
still sought to reopen the proceedings at
the
magistrate’s court and seek audience envisaged in PIE
there, than rushing to this Court.
[24]
I am mindful of the fact that Hlangwana claimed to be in lawful
possession of the property in
June 2015, in a plea filed by her
attorneys of record (who happen to be the same attorneys for the
applicant herein) and again
on 14 March 2018 the same firm of
attorneys filed a notice of acting, and that neither Hlangwana nor
the said attorneys was in
court on 28 May 2018 when the order was
made. I am therefore unable to come to any other conclusion
other than that, when
Hlangwana and her mutual legal representatives
with the applicant felt that they could no longer resist the eviction
proceedings,
Hlangwana brought the applicant into the picture with
the hope that the applicant would not be covered by the order against
Hlangwana.
[25]
In the circumstances, I am unable to come to the assistance of the
applicant. He failed
to deal with the eviction proceedings
while aware of them, he failed to furnish information that would have
shed light on whether
he is not acting to frustrate the respondent
against its legal action against Hlangwana. In my view, he has
an alternate
remedy, to challenge the eviction proceedings or seek to
have them set aside. That order is valid, until set aside and
is
executable against him in the circumstances of this case.
In
the result,
The
application is hereby dismissed with costs.
_________________________
B
Majiki
Judge
of the High Court
Applicant’s
Counsel
: Mr
Jozana
Instructed
by
: Messrs
B
Makade Incorporated
IDK
Building – Suite No. 7
92
Sutherland Street
MTHATHA
Respondents’
Counsel
: Mr Hobbs
Instructed
by
: Messrs
Ross
G.M. Sogoni & Company
No.
44 King Street
BUTTERWORTH
c/o
Messrs J.S. Sikungo & Associates
Suite
13 – Meyers Building
55
Madeira Street
MTHATHA